vapo20240709c_prer14a.htm

PRELIMINARY PROXY STATEMENT — SUBJECT TO COMPLETION – JULY 30, 2024

You are cordially invited to attend a special meeting (such meeting, including any adjournments or postponements thereof, the “Special Meeting”) of the stockholders of Vapotherm, Inc., a Delaware corporation (“Vapotherm,” the “Company,” “we” or “our”), to be held on , 2024, at , Eastern Time, at our principal executive offices located at 100 Domain Drive, Exeter, NH 03833. Details regarding the business to be conducted at the Special Meeting are described in the accompanying Notice of Special Meeting of Stockholders and proxy statement.

At the Special Meeting, you will be asked to consider and vote on a proposal to adopt the Agreement and Plan of Merger, dated as of June 17, 2024 (such agreement, as it may be amended, modified or supplemented from time to time, the “Merger Agreement”), by and among Veronica Holdings, LLC (“Topco”), Veronica Intermediate Holdings, LLC, a wholly owned subsidiary of Topco (“Parent”), Veronica Merger Sub, Inc., a wholly owned subsidiary of Parent (“Merger Sub”), and Vapotherm, pursuant to which Merger Sub will merge with and into Vapotherm (the “Merger”), and as a result of which the separate corporate existence of Merger Sub will cease, and Vapotherm will continue as the surviving corporation of the Merger and as a direct, wholly owned subsidiary of Parent (such proposal, the “Merger Agreement Proposal”).

Topco, Parent and Merger Sub are newly formed entities owned by funds managed by affiliates of Perceptive Advisors, LLC, a leading health care investment firm (“Perceptive”). Concurrently with the entry into the Merger Agreement, Vapotherm’s existing lenders, investment affiliates managed by SLR Capital Partners, LLC (collectively “SLR”), have agreed to contribute approximately $81.0 million of term debt (including certain accrued but unpaid interest and fees) and warrants issued to certain SLR entities to purchase Vapotherm common stock to Topco in exchange for preferred equity and common equity of Topco, and Perceptive has agreed to invest $50.0 million of new preferred equity capital into Topco, a portion of which will be used to fund the Merger and make certain closing-related payments. After completion of the Merger, SLR will retain $40.0 million of Vapotherm term debt.

If the Merger is completed, each share (“Share”) of Vapotherm common stock issued and outstanding immediately prior to the effective time of the Merger (the “Effective Time”), other than the Excluded Shares (as described below), will be converted by virtue of the Merger into the right to receive $2.18 in cash, without interest (the “Per Share Merger Consideration”), and as of the Effective Time, all such Shares will no longer be outstanding and will automatically be cancelled and will cease to exist, and each holder thereof will cease to have any rights with respect thereto, except the right to receive the Per Share Merger Consideration. The “Excluded Shares” are (i) each Share held in the treasury of the Company or owned by the Company or any direct or indirect wholly owned subsidiary of the Company immediately prior to the Effective Time, which Share will be cancelled and retired without any conversion thereof and will cease to exist and no payment or distribution will be made with respect thereto; (ii) each Share owned by Parent, Merger Sub or any direct or indirect wholly owned subsidiary of Parent or Merger Sub immediately prior to the Effective Time (other than the Rollover Shares (as defined below) contributed to Topco), which Share will be cancelled and retired without any conversion thereof and will cease to exist and no payment or distribution will be made with respect thereto; (iii) each Share held by a holder (or “beneficial owner” (as defined in Section 262(a) of the General Corporation Law of the State of Delaware (the “DGCL”)) who is entitled to demand and properly exercises and perfects its demand for appraisal of such Share in accordance with Section 262 of the DGCL); and (iv) each Rollover Share, which will be contributed to Topco as described below in exchange for common units in Topco (“Topco Common Units”) and then contributed by Topco to Parent immediately prior to the Effective Time, and with no payment or distribution to be made with respect thereto by virtue of the Merger.

In connection with and concurrently with the execution of the Merger Agreement, Vapotherm entered into Rollover Agreements (the “Stockholder Rollover Agreements”) with Topco and certain Vapotherm stockholders (the “Rollover Stockholders”), pursuant to which such Rollover Stockholders agreed, among other things, and subject to the terms and conditions thereof, to contribute, transfer and assign to Topco, on the closing date of the Merger but immediately prior to the Effective Time, all or a portion of their Shares held directly by them as specified in the Stockholder Rollover Agreements (the “Rollover Shares”), in exchange for Topco Common Units at a price per Topco Common Unit equal to $2.18. In addition, the Merger Agreement provides for a process pursuant to which additional Vapotherm stockholders may enter into additional Stockholder Rollover Agreements with Topco (the “Additional Rollover Agreements”) (as further described under “The Merger Agreement—Additional Rollover Agreements” in the accompanying proxy statement).

The proposed transaction constitutes a “going private transaction” under U.S. Securities and Exchange Commission (“SEC”) rules. Upon completion of the transaction, our common stock will no longer trade on the OTCQX tier of the OTC Markets or any other over-the-counter market. In addition, our common stock will be deregistered under the Exchange Act, and we will no longer file periodic reports with the SEC with respect to our common stock.

The Board of Directors of Vapotherm (the “Board”) referred consideration of any potential transaction involving the Company to a Special Review Committee (the “Special Committee”) of the Board, including the authority to, among other things, review, evaluate, negotiate, approve or not approve and recommend or not recommend to the Board and our stockholders any proposal made by Parent. The Special Committee unanimously (i) determined that the Merger and certain other transactions contemplated by the Merger Agreement are advisable, fair to and in the best interests of the Company, (ii) recommended that the Board (A) approve and declare advisable that the Company enter into the Merger Agreement and certain other transaction documents and agreements to which the Company is or will be a party and perform its covenants and other obligations therein, and consummate the transactions contemplated by the Merger Agreement and such other transaction documents, including the Merger, upon the terms and subject to the conditions set forth therein and (B) direct that the adoption of the Merger Agreement be submitted to a vote of our stockholders at a meeting of our stockholders, and (iii) subject to the terms and conditions of the Merger Agreement, recommended that our stockholders approve the adoption of the Merger Agreement and approve the Merger on the terms and subject to the conditions set forth in the Merger Agreement. In addition, the Special Committee believes that the Merger is fair to Vapotherm’s “unaffiliated security holders,” as such term is defined in Rule 13e-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

The Board (acting on the recommendation of the Special Committee, whose analyses and determinations the Board adopted as its own in its evaluation of the fairness of the Merger) unanimously (i) determined that the Merger and certain other transactions contemplated by the Merger Agreement are advisable, fair to and in the best interests of the Company and our stockholders (other than Parent and its affiliates and the Rollover Stockholders (including any Company stockholder that may execute an Additional Rollover Agreement)), (ii) approved and declared advisable that the Company enter into the Merger Agreement and certain other transaction documents and agreements to which the Company is or will be a party and perform its covenants and other obligations therein, and consummate the transactions contemplated by the Merger Agreement and such other transaction documents, including the Merger, upon the terms and subject to the conditions set forth therein, (iii) directed that the adoption of the Merger Agreement be submitted to a vote of our stockholders at a meeting of our stockholders and (iv) subject to the terms and conditions of the Merger Agreement, recommended that our stockholders approve the adoption of the Merger Agreement and approve the Merger on the terms and subject to the conditions set forth in the Merger Agreement. In addition, the Board believes that the Merger is fair to Vapotherm’s “unaffiliated security holders,” as such term is defined in Rule 13e-3 under the Exchange Act.

In evaluating the Merger Agreement and the transactions contemplated thereby, including the Merger, the Special Committee consulted with its own independent financial advisor and, in making its recommendation to the Board, considered a number of factors. In evaluating the Merger Agreement and the transactions contemplated thereby, including the Merger, and, in making its determination, including its recommendation to our stockholders, the Board considered a number of factors, including the recommendation of the Special Committee. Such factors considered by the Special Committee and the Board are described more fully in the accompanying proxy statement. The Board unanimously recommends that you vote “FOR” the Merger Agreement Proposal.

Your vote is very important, regardless of the number of Shares you own. In accordance with the DGCL, the approval of the Merger Agreement Proposal requires the affirmative vote of the holders of a majority of our Shares outstanding as of the close of business on the record date for the Special Meeting. Each record holder of a Share is entitled to one vote for each Share owned of record on the record date. If you fail to vote on the Merger Agreement Proposal, the effect will be the same as a vote against such proposal.

You will also be asked to consider and vote at the Special Meeting on (i) a proposal to approve, on a non-binding, advisory basis, the compensation that may be paid or become payable to our named executive officers that is based on or otherwise relates to the Merger Agreement and the transactions contemplated by the Merger Agreement, and (ii) a proposal to adjourn the Special Meeting to a later date or dates, if necessary or appropriate, including to solicit additional proxies to approve the Merger Agreement Proposal if there are insufficient votes to approve the Merger Agreement Proposal at the time of the Special Meeting. The Board unanimously recommends that you vote “FOR” each of these proposals.

In considering the recommendation of the Board, you should be aware that certain of our directors and executive officers have interests in the Merger that are different from, or in addition to, the interests of our stockholders generally, as further described in the accompanying proxy statement.

As previously mentioned, in connection with and concurrently with the execution of the Merger Agreement, the Rollover Stockholders, which include certain directors and executive officers, entered into Stockholder Rollover Agreements pursuant to which they agreed, upon the terms and subject to the conditions thereof, among other things, to contribute, transfer and assign to Topco, on the closing date of the Merger but immediately prior to the Effective Time, all of their Rollover Shares in exchange for Topco Common Units at a price per Topco Common Unit equal to $2.18 and to vote all of their Rollover Shares beneficially owned by them in favor of the Merger Agreement Proposal and against certain actions that would prevent, interfere with or delay the consummation of the Merger. The Rollover Stockholders collectively hold Rollover Shares equal to, in the aggregate, 8.6% of our outstanding Shares.

Concurrently with the execution and delivery of the Merger Agreement, the following unaffiliated stockholders, holding an aggregate of 24.6% of our outstanding Shares, entered into Voting and Support Agreements with Parent pursuant to which, and upon the terms and subject to the conditions thereof, among other things, each such stockholder agreed to vote all of the Shares beneficially owned by such stockholder in favor of the Merger Agreement Proposal and against certain actions that would prevent, interfere with or delay the consummation of the Merger: Crow’s Nest Holdings LP, Kent Lake Capital LLC, Guines LLC and certain entities associated therewith, including Roystone Capital Management LP and Roystone Capital Holdings, LLC, and The Irrevocable Larson Family Investment Trust.

The closing of the Merger is subject to the satisfaction or waiver (if such waiver is permissible under the Merger Agreement or under applicable law) of certain conditions set forth in the Merger Agreement.

The accompanying proxy statement provides you with more detailed information about the Special Meeting, the Merger Agreement and the transactions contemplated thereby, including the Merger. A copy of the Merger Agreement is attached as Annex A to the proxy statement. We encourage you to carefully read the entire proxy statement and its annexes, including the Merger Agreement. In particular, you should read the “Risk Factors” section beginning on page 30 of our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on February 22, 2024 (as amended by Amendment No. 1 on Form 10-K/A filed with the SEC on April 29, 2024), a copy of which is attached as Annex H to the proxy statement, and other risk factors detailed from time to time in Vapotherm’s reports filed with the SEC for risks relating to our business and for a discussion of the risks you should consider in evaluating the proposed transactions and how they may affect you. You may also obtain additional information about Vapotherm from other documents that we have filed with the SEC.

If you have any questions or need assistance voting your Shares, please contact our proxy solicitor:

On behalf of the Board, we thank you for your support and appreciate your consideration of this matter.

NEITHER THE U.S. SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THE MERGER, PASSED UPON THE MERITS OR FAIRNESS OF THE MERGER OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THE ACCOMPANYING PROXY STATEMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.

The accompanying proxy statement is dated , 2024 and, together with the enclosed form of proxy card, is first being mailed or otherwise sent to stockholders on or about , 2024.

PRELIMINARY PROXY STATEMENT — SUBJECT TO COMPLETION – JULY 30, 2024

Notice is hereby given that a Special Meeting of Stockholders (such meeting, including any adjournments or postponements thereof, the “Special Meeting”) of Vapotherm, Inc., a Delaware corporation (“Vapotherm,” the “Company,” “we” or “our”), will be held on , 2024, at , Eastern Time, at our principal executive offices located at 100 Domain Drive, Exeter, NH 03833, for the following purposes:

1. To consider and vote on the proposal to adopt the Agreement and Plan of Merger, dated as of June 17, 2024 (the “Merger Agreement”), by and among Veronica Holdings, LLC, a Delaware limited liability company (“Topco”), Veronica Intermediate Holdings, LLC, a Delaware limited liability company and a wholly owned subsidiary of Topco (“Parent”), Veronica Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and Vapotherm, pursuant to which and upon the terms and subject to the conditions thereof, Merger Sub will merge with and into Vapotherm, with Vapotherm continuing as the surviving corporation and as a wholly owned subsidiary of Parent (the “Merger” and such proposal, the “Merger Agreement Proposal”);

2. To consider and vote on the proposal to approve, on a non-binding, advisory basis, the compensation that may be paid or become payable to Vapotherm’s named executive officers that is based on or otherwise relates to the Merger Agreement and the transactions contemplated by the Merger Agreement (the “Compensation Proposal”); and

3. To consider and vote on any proposal to adjourn the Special Meeting to a later date or dates, if necessary or appropriate, including to solicit additional proxies to approve the Merger Agreement Proposal if there are insufficient votes to approve the Merger Agreement Proposal at the time of the Special Meeting (the “Adjournment Proposal”).

The accompanying proxy statement describes each of these items of business in detail.

The Board of Directors has fixed the close of business on , 2024 as the record date for determining the holders of Vapotherm common stock, par value $0.001 per share (“Common Stock”), entitled to notice of and to vote at the Special Meeting. Only stockholders of record at the close of business on the record date are entitled to such notice and to vote, in person or by proxy, at the Special Meeting. A complete list of the stockholders entitled to vote at the Special Meeting will be available for examination during regular business hours for the 10 days prior to the Special Meeting at our principal executive offices, located at 100 Domain Drive, Exeter, NH 03833.

If the Merger is completed, each share (“Share”) of Common Stock issued and outstanding immediately prior to the effective time of the Merger (the “Effective Time”), other than the Excluded Shares (as described below), will be converted by virtue of the Merger into the right to receive $2.18 in cash, without interest (the “Per Share Merger Consideration”), and as of the Effective Time, all such Shares will no longer be outstanding and will automatically be cancelled and will cease to exist, and each holder thereof will cease to have any rights with respect thereto, except the right to receive the Per Share Merger Consideration. The “Excluded Shares” are (i) each Share held in the treasury of the Company or owned by the Company or any direct or indirect wholly owned subsidiary of the Company immediately prior to the Effective Time, which Share will be cancelled and retired without any conversion thereof and will cease to exist and no payment or distribution will be made with respect thereto; (ii) each Share owned by Parent, Merger Sub or any direct or indirect wholly owned subsidiary of Parent or Merger Sub immediately prior to the Effective Time (other than the Rollover Shares (as defined below) contributed to Topco), which Share will be cancelled and retired without any conversion thereof and will cease to exist and no payment or distribution will be made with respect thereto; (iii) each Share held by a holder (or “beneficial owner” (as defined in Section 262(a) of the General Corporation Law of the State of Delaware (the “DGCL”)) who is entitled to demand and properly exercises and perfects its demand for appraisal of such Share in accordance with Section 262 of the DGCL); and (iv) each Rollover Share (as defined below), which will be contributed to Topco as described below in exchange for common units in Topco (“Topco Common Units”) and then contributed by Topco to Parent immediately prior to the Effective Time, and with no payment or distribution to be made with respect thereto by virtue of the Merger.

In connection with and concurrently with the execution of the Merger Agreement, Vapotherm entered into Rollover Agreements (the “Stockholder Rollover Agreements”) with Topco and certain Vapotherm stockholders (the “Rollover Stockholders”), pursuant to which such Rollover Stockholders agreed, among other things, and subject to the terms and conditions thereof, to contribute, transfer and assign to Topco, on the closing date of the Merger but immediately prior to the Effective Time, all or a portion of their Shares held directly by them as specified in the Stockholder Rollover Agreements (the “Rollover Shares”), in exchange for Topco Common Units at a price per Topco Common Unit equal to $2.18, pursuant to and subject to the terms and conditions of the Stockholder Rollover Agreements. In addition, the Merger Agreement provides for a process pursuant to which additional Vapotherm stockholders may enter into additional Stockholder Rollover Agreements with Topco (the “Additional Rollover Agreements”) (as further described under “The Merger Agreement—Additional Rollover Agreements” in the accompanying proxy statement).

The proposed transaction constitutes a “going private transaction” under U.S. Securities and Exchange Commission rules.

The Board of Directors unanimously recommends that our stockholders vote “FOR” the Merger Agreement Proposal, “FOR” the Compensation Proposal and “FOR” the Adjournment Proposal.

As required by Section 262 of the DGCL, Vapotherm is notifying all stockholders entitled to vote on the Merger Proposal that you are or may be entitled to assert appraisal rights in connection with the proposed Merger. The procedures you are required to follow to exercise your appraisal rights are summarized in the accompanying proxy statement under “Special Factors—Appraisal Rights” beginning on page 76, and a copy of Section 262 of the DGCL is included as Annex G to the accompanying proxy statement.

Your vote is very important, regardless of the number of Shares you own. In accordance with the DGCL, the approval of the Merger Agreement Proposal requires the affirmative vote of the holders of a majority of our Shares outstanding as of the close of business on the record date for the Special Meeting. Each record holder of a Share is entitled to one vote for each Share owned of record on the record date. If you fail to vote on the Merger Agreement Proposal, the effect will be the same as a vote against such proposal.

Your vote is very important. To ensure your representation at the Special Meeting, you are urged to vote your Shares via the Internet, by telephone, or by promptly marking, dating, signing, and returning the proxy card. If your Shares are held by a bank, broker, or other nominee, please follow the instructions from your bank, broker, or other nominee to have your Shares voted.

PRELIMINARY PROXY STATEMENT — SUBJECT TO COMPLETION – JULY 30, 2024

This proxy statement contains information relating to a Special Meeting of Stockholders of Vapotherm, Inc., a Delaware corporation (“Vapotherm,” the “Company,” “we” or “our”), which will be held at 100 Domain Drive, Exeter, New Hampshire 03833 on , 2024 at , Eastern Time, and any adjournments or postponements thereof (the “Special Meeting”), and is being furnished to our stockholders as part of the solicitation of proxies by the Board of Directors (the “Board”) for use at the Special Meeting.

IMPORTANT NOTICE REGARDING THE PROXY MATERIALS FOR THE SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON , 2024

This proxy statement is available on the investor relations section of our website at www.vapotherm.com. This proxy statement is dated , 2024, and is first being mailed or otherwise sent to our stockholders of record entitled to vote at the Special Meeting on or about , 2024.

1. a proposal to adopt the Agreement and Plan of Merger, dated as of June 17, 2024 (the “Merger Agreement”), by and among Veronica Holdings, LLC, a Delaware limited liability company (“Topco”), Veronica Intermediate Holdings, LLC, a Delaware limited liability company and a wholly owned subsidiary of Topco (“Parent”), Veronica Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and Vapotherm, pursuant to which and upon the terms and subject to the conditions thereof, Merger Sub will merge with and into Vapotherm, with Vapotherm continuing as the surviving corporation (the “Surviving Corporation”) and as a wholly owned subsidiary of Parent (the “Merger” and such proposal, the “Merger Agreement Proposal”);

2. a proposal to approve, on a non-binding, advisory basis, the compensation that may be paid or become payable to Vapotherm’s named executive officers that is based on or otherwise relates to the Merger Agreement and the transactions contemplated by the Merger Agreement (the “Compensation Proposal”); and

3. any proposal to adjourn the Special Meeting to a later date or dates, if necessary or appropriate, including to solicit additional proxies to approve the Merger Agreement Proposal if there are insufficient votes to approve the Merger Agreement Proposal at the time of the Special Meeting (the “Adjournment Proposal”).

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

In connection with and concurrently with the execution of the Merger Agreement, Vapotherm entered into Rollover Agreements (the “Stockholder Rollover Agreements”) with Topco and certain Vapotherm stockholders (the “Rollover Stockholders”), pursuant to which such Rollover Stockholders agreed, among other things, and subject to the terms and conditions thereof, to contribute, transfer and assign to Topco, on the closing date of the Merger but immediately prior to the Effective Time, all or portion of their Shares held directly by them as specified in the Stockholder Rollover Agreements (the “Rollover Shares”), in exchange for Topco Common Units at a price per Topco Common Unit equal to $2.18. In addition, the Merger Agreement provides for a process pursuant to which additional Vapotherm stockholders may enter into additional Stockholder Rollover Agreements with Topco (the “Additional Rollover Agreements”) (as further described under “The Merger Agreement—Additional Rollover Agreements”).

The proposed transaction constitutes a “going private transaction” under U.S. Securities and Exchange Commission (“SEC”) rules.

The Board of Directors has determined that the Merger and certain other transactions contemplated by the Merger Agreement are advisable, fair to and in the best interests of the Company and our stockholders (other than Parent and its affiliates and the Rollover Stockholders (including any Company stockholder that may execute an Additional Rollover Agreement)) and unanimously recommends that our stockholders vote “FOR” the Merger Agreement Proposal, “FOR” the Compensation Proposal and “FOR” the Adjournment Proposal.

Whether or not you plan to attend the Special Meeting, we encourage you to submit your proxy as promptly as possible through the Internet, by telephone, or by signing and dating the enclosed proxy card and returning it in the post-paid envelope provided. You may revoke your proxy or change your vote at any time before it is voted at the Special Meeting by following the instructions provided under “The Special Meeting—Revocability of Proxies.”

If you hold your Shares in “street name,” you should instruct your bank, broker or other nominee how to vote your Shares in accordance with the voting instruction form that you will receive from your bank, broker or other nominee. Your bank, broker or other nominee cannot vote on any of the proposals, including the Merger Agreement Proposal, without your instructions. If you are a stockholder of record, voting at the Special Meeting will revoke any proxy that you previously submitted. If you hold your Shares through a bank, broker or other nominee, you must obtain a “legal proxy” to vote at the Special Meeting.

You should carefully read and consider this entire proxy statement and its annexes, including the Merger Agreement, as they contain important information about the Merger and how it affects you.

If you have any questions concerning the Merger Agreement, the Merger, the Special Meeting or this proxy statement, would like additional copies of this proxy statement or need help voting your Shares, please contact our proxy solicitor:

References to and information provided on Vapotherm’s website and any other website referenced herein is not incorporated by reference into, and does not constitute a part of, this proxy statement.

™ and ® denote trademarks and registered trademarks of Vapotherm, Inc. or its affiliates, registered as indicated in the United States. All other trademarks and trade names referred to in this release are the property of their respective owners.

In this proxy statement, except as otherwise specifically noted, the following terms have the following meanings:

Unless indicated otherwise, any other capitalized term used herein but not otherwise defined herein has the meaning assigned to such term in the Merger Agreement.

SUMMARY TERM SHEET

This Summary Term Sheet highlights selected information contained in this proxy statement related to the Merger, and may not contain all of the information that is important to you. To understand the Merger more fully and for a more complete description of the legal terms of the Merger, you should carefully read and consider this entire proxy statement and the annexes to this proxy statement, including, but not limited to, the Merger Agreement, along with all of the documents to which we refer in this proxy statement, as they contain important information about, among other things, the Merger and how it affects you. The Merger Agreement is attached as Annex A to this proxy statement. You should carefully read and consider the entire Merger Agreement, which is the legal document that governs the Merger. The items in this Summary Term Sheet include page references directing you to a more complete description of that topic in this proxy statement.

Because the Merger is a “going private transaction,” Vapotherm and the SLR Filing Persons (as defined below) have filed with the SEC a Transaction Statement on Schedule 13E-3 (the “Schedule 13E-3”) with respect to the Merger. The SLR Entities consist of SLR Investment Corp., SCP Private Credit Income Fund SPV, LLC, SCP Private Credit Income BDC SPV LLC, SCP Private Corporate Lending Fund SPV LLC, SCP Cayman Debt Master Fund SPV LLC, SLR CP SF Debt Fund SPV, LLC, SLR HC Fund SPV, LLC and SLR HC BDC SPV, LLC, SCP Private Credit Income Fund LP, SCP Private Credit Income BDC LLC, SCP Private Corporate Lending Fund L.P., SCP Cayman Debt Master Fund L.P., SCP SF Debt Fund L.P., SLR HC Onshore Fund L.P., SLR HC BDC LLC, SLR Capital Partners, LLC, Michael S. Gross and Bruce Spohler, as further described under “Important Information Regarding the SLR Filing Persons.” You may obtain any additional information about the Schedule 13E-3 under “Where You Can Find More Information.”

Parties to the Merger (page 128)

Vapotherm, Inc.

Vapotherm was originally incorporated in Maryland in 1999 and reincorporated in Delaware in 2013. Vapotherm is a global medical technology company primarily focused on the care of patients of all ages suffering from respiratory distress, whether associated with complex lung diseases such as chronic obstructive pulmonary disease, congestive heart failure, pneumonia, asthma and COVID-19 or other systemic conditions. Vapotherm’s principal business address is 100 Domain Drive, Exeter, New Hampshire 03833, and its telephone number is (603) 658-0011.

Vapotherm’s Common Stock trades on the OTCQX tier of the OTC Markets (the “OTCQX”) under the symbol “VAPO.” Its corporate web address is https://www.vapotherm.com.

See “Other Important Information Regarding Vapotherm.—Company Background” and “Parties to the Merger—Vapotherm, Inc.” for additional information.

Additional information about Vapotherm is contained in its public filings made with the SEC, including its Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on February 22, 2024 (as amended by Amendment No. 1 on Form 10-K/A filed with the SEC on April 29, 2024), which Form 10-K and Form 10-K/A are attached as Annex H to this proxy statement, and Vapotherm’s most recent Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2024, which is attached as Annex I to this proxy statement.

Veronica Holdings, LLC

Topco is a Delaware limited liability company and was formed on June 13, 2024 solely for the purpose of engaging in the transactions contemplated by the Merger Agreement. Topco is owned by Perceptive Discovery ID LP, a fund managed by an affiliate of Perceptive Advisors, LLC (“Perceptive”). Topco has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement and the related Equity Financing (as defined elsewhere in this proxy statement). Topco has elected to be treated as a corporation for U.S. federal income tax purposes. The principal executive offices of Topco are located at 51 Astor Place, 10th Floor, New York, NY 10003, and its telephone number is (646) 205-5300.

Veronica Intermediate Holdings, LLC

Parent is a Delaware limited liability company and a wholly owned subsidiary of Topco and was formed on June 13, 2024 solely for the purpose of engaging in the transactions contemplated by the Merger Agreement. Parent has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement and the related Equity Financing (as defined elsewhere in this proxy statement). Parent has elected to be treated as a corporation for U.S. federal income tax purposes. The principal executive offices of Parent are located at 51 Astor Place, 10th Floor, New York, NY 10003, and its telephone number is (646) 205-5300.

Veronica Merger Sub, Inc.

Merger Sub is a Delaware corporation and a wholly owned subsidiary of Parent and was formed on June 13, 2024 solely for the purpose of engaging in the transactions contemplated by the Merger Agreement. Merger Sub has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement. Upon the completion of the Merger, Merger Sub will cease to exist and the Company will continue as the Surviving Corporation and a wholly owned subsidiary of Parent. The principal executive offices of Merger Sub are located at 51 Astor Place, 10th Floor, New York, NY 10003, and its telephone number is (646) 205-5300.

For more information, see “Parties to the Merger.”

The Merger (page 85)

Certain Effects of the Merger

On the terms and subject to the satisfaction or waiver of the conditions set forth in the Merger Agreement, and in accordance with the DGCL, Merger Sub will merge with and into Vapotherm, with Vapotherm continuing as the Surviving Corporation and as a wholly owned subsidiary of Parent.

The Effective Time at which the Merger will become effective will occur upon the filing of a duly executed certificate of merger with the Secretary of State of the State of Delaware (or at such later time as may be specified in the certificate of merger and agreed to by Merger Sub and Vapotherm).

As a result of the Merger, each Share issued and outstanding immediately prior to the Effective Time of the Merger, other than the Excluded Shares, will be converted by virtue of the Merger into the right to receive the Per Share Merger Consideration of $2.18 in cash, without interest. If the Merger is completed, and you are not a Rollover Stockholder (or a Company stockholder that may execute an Additional Rollover Agreement), you will not own any shares of the capital stock of the Surviving Corporation or otherwise share in the future earnings or potential of Vapotherm after the Merger.

Since Parent is a wholly owned subsidiary of Topco, after the Merger, Vapotherm will be an indirect, wholly owned subsidiary of Topco and indirectly beneficially owned by the equity investors in Topco. The equity investors in Topco will consist primarily of the SLR Entities, Perceptive and the Rollover Stockholders.

As a result of the Merger, our Common Stock will no longer trade on the OTCQX. In addition, our Common Stock will be deregistered under the Exchange Act, and we will no longer file periodic reports with the SEC with respect to our Common Stock.

For more information regarding certain effects of the Merger, see “Special Factors—Certain Effects of the Merger.”

Treatment of Vapotherm Equity Awards

If the Merger is consummated, then:

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

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

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As of the Effective Time, except as otherwise agreed to between Parent, Vapotherm and a holder of an award, each performance stock unit award covering Shares (a “PSU Award”) that is outstanding immediately prior to the Effective Time will be cancelled and in exchange therefor the holder will be entitled to receive an amount in cash, less applicable tax withholdings, equal to (i) the total number of Shares subject to the vested portion of such PSU Award immediately prior to the Effective Time (including any portion of the PSU Award that becomes vested as a result of the transaction) (assuming target performance is achieved, or such higher level as required by the terms of such PSU Award), multiplied by (ii) the Per Share Merger Consideration.

Certain holders of Stock Options, RSU Awards and PSU Awards may agree with Parent and Topco to use the cash consideration that otherwise would be received in respect of such awards in the Merger (or the Shares that would otherwise be delivered) in respect of such awards to subscribe for equity in Topco in the form of Topco Common Units.

For more information, please see “Merger Agreement—Principal Terms of the Merger—Treatment of Vapotherm Equity Awards.”

Effect on Vapotherm if the Merger is Not Completed

If the Merger Agreement Proposal is not approved by our stockholders, or if the Merger is not completed for any other reason:

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our stockholders will not be entitled to, nor will they receive, any payment for their respective Shares pursuant to the Merger Agreement;

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the Rollover Stockholders will not receive any equity in Topco in exchange for their Rollover Shares;

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our substantial indebtedness will remain outstanding since none of it will be contributed (along with the SLR Warrants) by our lenders to Topco in exchange for preferred equity and common equity in Topco;

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(A) we will remain an independent public company, (B) our Common Stock will continue to trade on the OTCQX (so long as we continue to meet applicable requirements) or another over-the-counter market, (C) our Common Stock will continue to be registered under the Exchange Act, and (D) we will continue to be required to file periodic reports with the SEC;

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we anticipate that the Board will continue to work with our lenders to restructure our substantial indebtedness and seek additional financing (although irrespective of these efforts, it is possible we will be unable to restructure our debt and/or obtain additional financing, which would likely require us to curtail our operations significantly or cease operations and may result in a bankruptcy proceeding where given our substantial indebtedness, our stockholders likely would receive nothing, and if we were to effect an alternative debt restructuring or additional financing transaction, it likely would contain terms that are not favorable to us or our stockholders and would result in significant additional dilution);

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our stockholders will continue to be subject to similar types of risks and uncertainties as those to which they are currently subject, including, but not limited to, risks and uncertainties with respect to our significant indebtedness and financial condition, including our ability to continue as a going concern, and risks and uncertainties regarding our business, prospects and results of operations, as such may be affected by, among other things, the industry in which we operate and economic conditions;

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we anticipate that management will continue to operate the business in a manner similar to that in which it is being operated today, subject to our ability to continue as a going concern;

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the price of our Common Stock may decline significantly, and if that were to occur, it is uncertain when, if ever, the price of our Common Stock will return to the price at which it trades as of the date of this proxy statement;

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The Board will continue to evaluate and review Vapotherm’s business operations, strategic direction and capitalization, among other things, and will make such changes as are deemed appropriate (irrespective of these efforts, it is possible that no other transaction acceptable to the Board will be offered or that our business, prospects and results of operations will be adversely impacted); and

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under certain specified circumstances, Vapotherm may be required to pay Parent a termination fee in the amount of $1.0 million (the “Termination Fee”). For more information, please see the information under the heading “The Merger Agreement—Effect of Termination; Termination Fees.”

For more information regarding the effect on Vapotherm if the Merger is not completed, see “Special Factors—Certain Effects on Vapotherm if the Merger is Not Completed.”

Recommendation of the Special Committee; Recommendation of the Board; Fairness of the Merger (page 34)

After careful consideration, a Special Review Committee of the Board (the “Special Committee”) unanimously (i) determined that the Merger and certain other transactions contemplated by the Merger Agreement are advisable, fair to and in the best interests of the Company, (ii) recommended that the Board (A) approve and declare advisable that the Company enter into the Merger Agreement and certain other transaction documents and agreements to which the Company is or will be a party and perform its covenants and other obligations therein, and consummate the transactions contemplated by the Merger Agreement and such other transaction documents, including the Merger, upon the terms and subject to the conditions set forth therein and (B) direct that the adoption of the Merger Agreement be submitted to a vote of our stockholders at a meeting of our stockholders, and (iii) subject to the terms and conditions of the Merger Agreement, recommended that our stockholders approve the adoption of the Merger Agreement and approve the Merger on the terms and subject to the conditions set forth in the Merger Agreement. In addition, the Special Committee believes that the Merger is fair to Vapotherm’s “unaffiliated security holders,” as such term is defined in Rule 13e-3 of the Exchange Act.

Accordingly, the Board recommends that you vote “FOR” the Merger Agreement Proposal at the Special Meeting.

For information regarding these recommendations, see “Special Factors— Purpose and Reasons of Vapotherm for the Merger; Recommendation of the Board and Special Committee; Fairness of the Merger” and for information regarding the background leading up to these recommendations, see “Special Factors—Background of the Merger.”

Purpose of Vapotherm for the Merger; Reasons for the Merger (page 34)

Vapotherm’s purpose for engaging in the Merger is to enable our stockholders (other than the Rollover Stockholders (or any Company stockholder that may execute an Additional Rollover Agreement)) to realize the value of their investment in Vapotherm through their receipt of $2.18 per Share in cash, subject to any applicable withholding taxes. The Per Share Merger Consideration represents a premium of approximately 166% over the closing price per Share on June 14, 2024, the last full trading day before the Special Committee’s initial determination to recommend that the Board approve, adopt and declare advisable the Merger Agreement and the transactions contemplated thereby. The Per Share Merger Consideration provides certainty, immediate value and liquidity to our stockholders (other than the Rollover Stockholders (or any Company stockholder that may execute an Additional Rollover Agreement)), particularly in light of our substantial debt burden and the substantial doubt over our ability to continue as a going concern. The Board recognized that, absent this proposed transaction or another type of restructuring of our indebtedness, bankruptcy represented Vapotherm’s most likely path, and that given our substantial debt, our stockholders may receive nothing in a bankruptcy proceeding.

For a further description of Vapotherm’s purpose and reasons for engaging in the Merger, see “Purpose and Reasons of Vapotherm for the Merger; Recommendation of the Board and Special Committee; Fairness of the Merger.”

Position of the SLR Filing Persons as to the Fairness of the Merger (page 48)

Each of the SLR Filing Persons believes that the transactions contemplated by the Merger Agreement, including the Merger, are substantively and procedurally fair to Vapotherm’s unaffiliated security holders, as such term is defined in Rule 13e-3 of the Exchange Act. The belief of the SLR Filing Persons as to the fairness of the Merger is based upon the factors discussed under “Special Factors—Position of the SLR Filing Persons as to the Fairness of the Merger.”

Opinion of Scalar, LLC (page 40)

Pursuant to an engagement letter, the Special Committee retained Scalar, LLC, which we refer to as Scalar, as its financial advisor in connection with the Merger.

On June 16, 2024, at a meeting of the Special Committee, Scalar rendered its oral opinion to the Special Committee, subsequently confirmed in writing, as to the fairness, from a financial point of view, to the holders of the Common Stock (for purposes of such opinion and this summary, such holders exclude the Company, Parent, SLR, Perceptive, the Rollover Stockholders and their respective affiliates which we refer to collectively as the “Excluded Parties”) of the Per Share Merger Consideration to be received by the holders of Common Stock (other than the Excluded Parties) in the proposed merger of the Company with the Merger Sub pursuant to the Merger Agreement (without giving effect to any impact of the Merger on any particular holder of Common Stock other than in its capacity as a holder of Common Stock).

The full text of Scalar’s written opinion, dated June 16, 2024, which sets forth the procedures followed, assumptions made, matters considered, qualifications and limitations on the review undertaken, and other matters considered by Scalar in connection with the opinion, is attached to this proxy statement as Annex F. The summary of Scalar’s opinion in this proxy statement is qualified in its entirety by reference to the full text of Scalar’s written opinion. Scalar’s opinion was provided for the information and assistance of the Special Committee and does not constitute a recommendation as to how any stockholder should vote or act with respect to the Merger or any other matter.

Intent of Vapotherm’s Directors and Executive Officers to Vote in Favor of the Merger (page 64)

Our directors and executive officers have informed us that, as of the date of this proxy statement, they intend to vote all of the Shares owned directly by them in favor of the Merger Agreement Proposal and each of the other proposals listed in this proxy statement. At the close of business on the record date, our directors and executive officers directly owned, in the aggregate, 957,141 Shares, or approximately 15.4% of our outstanding Common Stock. Of these Shares, 506,787 Shares, or approximately 8.2% of our outstanding Common Stock, are Rollover Shares, and 450,354 Shares, or approximately 7.2% of our outstanding Common Stock, are not Rollover Shares. In the aggregate, 506,787 Shares held by our directors and executive officers that are entitled to be voted at the Special Meeting, or approximately 8.2% of our outstanding Common Stock, are subject to commitments to vote in favor of the Merger Agreement Proposal and each of the other proposals listed in this proxy statement.

Interests of Vapotherm’s Directors and Executive Officers in the Merger (page 57)

In considering the recommendations of the Special Committee and of the Board that our stockholders vote to approve the Merger Agreement Proposal, our stockholders should be aware that, aside from their interest as stockholder of Vapotherm, our directors and executive officers have certain interests in the Merger that are different from, or in addition to, those of our other stockholders. The members of the Special Committee were aware of and considered these interests, among other matters, when making its recommendation to the Board, which was also aware of and took into account these interests, among other matters, when making its recommendation to our stockholders that the Merger Agreement Proposal be approved. These interests include, among others:

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Some directors and executive officers are Rollover Stockholders and will not receive the Per Share Merger Consideration in respect of each of their Shares in the same manner as all of our other stockholders. For more information about the Rollover Stockholders, see “Special Factors—Stockholder Rollover Agreements.”

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Our directors and executive officers will receive Per Share Merger Consideration for the Shares underlying their Vapotherm equity awards in the same manner as all of our other Vapotherm equity award holders, assuming such directors and executive officers have not entered into a Subscription Agreement with Topco. For more information about the treatment of Vapotherm equity awards, see “Merger Agreement—Principal Terms of the Merger—Treatment of Vapotherm Equity Awards.”

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We have entered into a separation pay agreement with each of our executive officers which provides for certain severance and other separation benefits that may become payable in connection with a termination of employment without “cause” or a resignation for “good reason” (in each case, as defined in the separation pay agreements).

For additional details on these and other interests, see “Special Factors—Interests of Executive Officers and Directors of Vapotherm in the Merger.”

Rollover Agreements (page 70)

Stockholder Rollover Agreements

In connection with and concurrently with Vapotherm’s entry into the Merger Agreement, Vapotherm entered into Stockholder Rollover Agreements with Topco and the Rollover Stockholders pursuant to which such Rollover Stockholders agreed, among other things, and subject to the terms and conditions thereof, to contribute, transfer and assign to Topco, on the closing date of the Merger (the “Closing Date”) but immediately prior to the Effective Time, all of their Rollover Shares in exchange for Topco Common Units at a price per Topco Common Unit equal to $2.18. The Rollover Stockholders collectively hold Rollover Shares equal to, in the aggregate, 8.6% of our outstanding Shares.

The Rollover Stockholders also agreed to vote all of the Rollover Shares held by such Rollover Stockholder (a) in favor of the adoption and approval of the Merger Agreement and the Merger, (b) against any action, proposal, agreement or transaction that would reasonably be expected to change in any manner the voting rights of any class of shares of the Company or materially impede, interfere with, delay, postpone, frustrate, discourage or adversely affect the timely consummation of the Merger and the other transactions contemplated by the Merger Agreement, (c) against any action, proposal, transaction or agreement that would result in (i) a breach of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of such Rollover Stockholder contained in such Stockholder Rollover Agreement, or (ii) any of the conditions to the consummation of the Merger set forth in the Merger Agreement not being fulfilled, and (d) in favor of any adjournment, recess, delay or postponement of the meeting of stockholders of the Company called to vote to adopt and approve the Merger Agreement and the Merger as may be reasonably requested by the Board or the Special Committee in order to seek or obtain approval of the adoption of the Merger Agreement or any action, proposal, transaction or agreement necessary to consummate the Merger.

In addition, the Merger Agreement provides for a process pursuant to which additional Vapotherm stockholders may enter into Additional Stockholder Rollover Agreements with Topco, as further described under “The Merger Agreement—Additional Rollover Agreements.”

For additional details, see “Special Factors—Stockholder Rollover Agreements.”

SLR Rollover Agreement

Concurrently with Vapotherm’s entry into the Merger Agreement, Topco and Parent entered into a Rollover Agreement (the “SLR Rollover Agreement”) with SLR pursuant to which and subject to the terms and conditions thereof, SLR agreed to, immediately prior to the Effective Time and subject to the subsequent consummation of the Merger, contribute certain of the loans and certain of the accrued but unpaid interest and fees under the SLR Loan Agreement (as defined below) and all of the SLR Warrants (as defined below) to Topco in exchange for Topco Series A Preferred Units and Topco Common Units. Subsequent to the consummation of the Merger, such loans and accrued but unpaid interest and fees under the SLR Loan Agreement and the SLR Warrants will be contributed by Topco to Parent, and immediately upon receipt by Parent thereof, following the Effective Time, such loans and accrued but unpaid interest and fees under the SLR Loan Agreement, and the SLR Warrants, will thereafter be contributed by Parent to the Surviving Corporation.

The “SLR Loan Agreement” is the Loan and Security Agreement, dated as of February 18, 2022, among SLR Investment Corp., as collateral agent, and the lenders thereto, Vapotherm, as borrower, and certain subsidiaries of Vapotherm, as guarantors, as amended from time to time.

The “SLR Warrants” are all of the warrants to purchase Shares issued or to be issued by Vapotherm to SLR in connection with the SLR Loan Agreement, as amended, including without limitation, the warrants to purchase Shares issued by the Company to SLR in February 2022 in connection with the SLR Loan Agreement, and as subsequently amended from time to time (the “2022 SLR Warrants”), and the warrants to purchase Shares issued or to be issued by the Company to SLR as payment-in-kind interest under the SLR Loan Agreement, as amended (the “SLR PIK Warrants”), in each case, as such warrants were amended from time to time, including pursuant to the Omnibus Warrant Amendment Agreement, dated as of June 17, 2024, by and among Vapotherm and each of the persons identified as a holder on the signature pages thereto (the “SLR Warrant Amendment Agreement”).

For additional details, see “Special Factors—SLR Rollover Agreement.”

Voting and Support Agreements (page 74)

Concurrently with the execution and delivery of the Merger Agreement, the following unaffiliated Vapotherm stockholders, holding an aggregate of 24.6% of our outstanding Shares, entered into Voting and Support Agreements with Parent pursuant to which, and upon the terms and subject to the conditions thereof, among other things, each such stockholder agreed to vote all of the Shares beneficially owned by such stockholder (a) in favor of the adoption and approval of the Merger Agreement and the Merger, (b) against any action, proposal, agreement or transaction that would reasonably be expected to change in any manner the voting rights of any class of shares of the Company or materially impede, interfere with, delay, postpone, frustrate, discourage or adversely affect the timely consummation of the Merger and the other transactions contemplated by the Merger Agreement, (c) against any action, proposal, transaction or agreement that would result in (i) a breach of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of such stockholder contained in such Voting and Support Agreement, or (ii) any of the conditions to the consummation of the Merger set forth in the Merger Agreement not being fulfilled, and (d) in favor of any adjournment, recess, delay or postponement of the meeting of stockholders of the Company called to vote to adopt and approve the Merger Agreement and the Merger as may be reasonably requested by the Board or the Special Committee in order to seek or obtain approval of the adoption of the Merger Agreement or any action, proposal, transaction or agreement necessary to consummate the Merger: Crow’s Nest Holdings LP, Kent Lake Capital LLC, Guines LLC and certain entities associated therewith, including Roystone Capital Management LP and Roystone Capital Holdings, LLC, and The Irrevocable Larson Family Investment Trust.

These holders, together with the Rollover Stockholders who also agreed to vote all of their Rollover Shares beneficially owned by them in favor of the Merger Agreement Proposal and against certain actions that would prevent, interfere with or delay the consummation of the Merger, collectively hold an aggregate of 33.2% of our outstanding Shares.

For additional details, see “Special Factors—Voting and Support Agreements.”

Subscription Agreements (page 75)

In connection with and concurrently with the execution of the Merger Agreement, certain holders of Vapotherm equity awards (the “Subscribers”), including certain directors and executive officers of Vapotherm, entered into Subscription Agreements with Topco (the “Subscription Agreements”) pursuant to which each such Subscriber agreed, among other things, on the closing date of the Merger and immediately following the Effective Time, subject to the terms and conditions of the Subscription Agreements, to purchase from Topco a number of Topco Common Units as determined pursuant to the applicable Subscription Agreement, at a subscription price of $2.18 per Topco Common Unit, which number of Topco Common Units will, subject to such Subscriber paying the Company prior to the consummation of the Merger an amount of cash equal to the applicable taxes required to be withheld with respect to the vesting and/or settlement or exercise of such Subscriber’s Vapotherm equity awards, as applicable be determined by calculating (a) all of such Subscriber’s consideration payable (net of withholding taxes, except as otherwise agreed by such Subscriber) in respect of such Subscriber’s Vapotherm equity awards, divided by (b) a price per Topco Common Unit equal to $2.18.

For additional details, see “Special Factors—Subscription Agreements.”

Termination of the Merger Agreement (page 111)

The Company and Parent each have rights to terminate the Merger Agreement under certain circumstances. The Merger Agreement may be terminated by mutual agreement of the Company and Parent in writing. Either the Company or Parent may terminate the Merger Agreement if (i) a court of competent jurisdiction or other governmental body has issued a final order, decree or ruling permanently restraining, enjoining or otherwise prohibiting the Merger, (ii) the Merger has not been consummated on or prior to an outside date of December 31, 2024 (subject to certain potential extensions) or (iii) the Requisite Stockholder Approval (as defined under “—The Special Meeting—Vote Required; Abstentions; Failure to Vote”) is not obtained.

Parent may terminate the Merger Agreement if (i) upon a breach of any covenant or agreement made by the Company in the Merger Agreement, or any representation or warranty of the Company is inaccurate or becomes inaccurate after the date of the Merger Agreement, subject to a cure period, and in each case such that a condition to Closing (as defined elsewhere in this proxy statement) will not be satisfied if a Closing were to occur at such time or (ii) the Board or any committee (including the Special Committee) thereof effectuates a Change of Board Recommendation (as defined elsewhere in this proxy statement) prior to the Requisite Stockholder Approval being obtained.

Additionally, the Company may terminate the Merger Agreement if (i) upon a breach of any covenant or agreement made by Parent or Merger Sub in the Merger Agreement, or any representation or warranty of Parent or Merger Sub is inaccurate or becomes inaccurate after the date of the Merger Agreement, subject to a cure period, and in each case such that a condition to Closing will not be satisfied if the Closing were to occur at such time, (ii) prior to obtaining the Requisite Stockholder Approval, in order for the Company to enter into an agreement with respect to a Superior Proposal (as defined elsewhere in this proxy statement), or (iii) all of Parent’s conditions to Closing are satisfied and Parent fails to consummate the Merger during the three business day period following the Company’s irrevocable notification to Parent that it is ready, willing, and able to consummate the Closing.

If the Merger Agreement is terminated under certain circumstances, such as if the Company accepts a Superior Proposal or effectuates a Change of Board Recommendation, the Company is obligated to pay to Parent the Termination Fee in the amount of $1.0 million, plus any enforcement expenses.

For more information, please see “The Merger Agreement—Termination” and “The Merger Agreement—Effect of Termination; Termination Fees.”

Financing of the Merger (page 69)

The obligation of Parent and Merger Sub to consummate the Merger is not subject to any financing condition. Concurrently with the execution of the Merger Agreement, Parent obtained equity financing commitments for the transactions contemplated by the Merger Agreement. Perceptive has delivered an equity commitment letter (the “Equity Commitment Letter”) to Parent, pursuant to which Perceptive (including its affiliates) has committed to provide Parent, on the terms and subject to the conditions set forth in the Equity Commitment Letter, an aggregate equity commitment of $50.0 million, a portion of which will either (a) fund (i) the payment of the aggregate merger consideration (the “Merger Consideration”), (ii) the repayment of the Term B Loan Facility (as defined and as described below), (iii) the purchase of a tail policy under the Company’s current directors’ and officers’ liability insurance policies at the Closing pursuant to the terms of the Merger Agreement and (iv) the payment of any fees and expenses required to be paid at the Closing by the Company, Parent or Merger Sub in connection with the transactions contemplated by the Merger Agreement (the “Equity Financing”) or (b) be used to pay up to $1.0 million to satisfy the obligations of Parent and Merger Sub to the Company following the termination of the Merger Agreement or a final order that requires Topco, Parent or Merger Sub to pay damages to the Company in connection with the transactions contemplated by the Merger Agreement and the amount required to reimburse the Company with respect to certain enforcement expenses (the “Limited Guarantee”). The Equity Financing, when funded in accordance with the terms of the Equity Commitment Letter, will provide Parent with sufficient available funds to fund the amounts payable by Parent and Merger Sub in connection with the transactions contemplated by the Merger Agreement and the Equity Financing, in each case, in accordance with the Merger Agreement at the Closing.

For more information, please refer to the section of this proxy statement captioned “Special Factors—Financing of the Merger.”

Appraisal Rights (page 76)

If the Merger is consummated, our stockholders and beneficial owners of Shares who continuously are the record holders or beneficial owners, as the case may be, of such Shares through the Effective Time, whose Shares are not voted in favor of the Merger Agreement Proposal, who are entitled to and properly demand appraisal of such Shares in accordance with Section 262 of the DGCL (“Section 262”), and who otherwise comply with the statutory requirements of Section 262 will be entitled to seek an appraisal by the Delaware Court of Chancery of the “fair value” of their Shares. The amount determined to be fair value by the court will be determined as of the Effective Time and could be more than, the same as or less than the Per Share Merger Consideration. Voting “AGAINST” or failing to vote “FOR” the Merger Agreement Proposal by itself does not constitute a demand for appraisal within the meaning of Section 262.

This section is intended as a brief summary of the material provisions of Delaware law pertaining to appraisal rights. The following discussion, however, is not a complete summary of the law pertaining to appraisal rights under the DGCL and is qualified in its entirety by the full text of Section 262 that is accessible at the following publicly available website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262 and attached as Annex G to this proxy statement and incorporated by reference herein. Due to the complexity of the appraisal process, our stockholders and beneficial owners of Shares who wish to seek appraisal of their Shares or who wish to preserve their rights to do so should review the information in this proxy statement under “Special Factors—Appraisal Rights” and the applicable provisions of Section 262 carefully and are encouraged to seek the advice of legal counsel and financial advisors with respect to the exercise of appraisal rights since failure to timely and fully comply with the procedures set forth therein will result in the loss of such rights.

Generally, to exercise appraisal rights, our stockholders and beneficial owners of Shares must: (i) submit a proper written demand for appraisal of such Shares to Vapotherm before the vote by our stockholders is taken on the Merger Agreement Proposal at the Special Meeting; (ii) not submit a proxy or otherwise vote such Shares (or cause such Shares to be voted) in favor of the Merger Agreement Proposal; (iii) continue to be the record holders or beneficial owners, as the case may be, of such Shares through the Effective Time; and (iv) strictly comply with all other procedures and requirements for exercising appraisal rights under Section 262. Such stockholders and beneficial owners of Shares that adhere to the foregoing procedures will be entitled to have their Shares appraised by the Delaware Court of Chancery and receive payment in cash of the “fair value” of such Shares (as determined by the Delaware Court of Chancery, exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with interest, if any, to be paid upon the amount determined to be the fair value) as of the completion of the Merger instead of the Per Share Merger Consideration in respect to each such Share.

Failure to follow exactly the procedures specified under Section 262 may result in the loss of appraisal rights. In addition, the Delaware Court of Chancery will dismiss appraisal proceedings in respect of Vapotherm unless certain stock ownership conditions are satisfied by our stockholders and beneficial owners of Shares seeking appraisal. The DGCL requirements for exercising appraisal rights are described in further detail in this proxy statement, which is qualified in its entirety by Section 262, the relevant section of the DGCL regarding appraisal rights. A copy of Section 262 is accessible at the following publicly available website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262 and is attached as Annex G to this proxy statement and incorporated by reference herein. If you hold your Shares through a bank, broker or other nominee and you wish to exercise appraisal rights, you should consult with your bank, broker or other nominee to determine the appropriate procedures for the making of a demand for appraisal on your behalf by your bank, broker or other nominee. For more information, please see “Special Factors—Appraisal Rights.”

Material U.S. Federal Income Tax Consequences of the Rollover Exchange and the Merger (page 65)

The following briefly describes the material U.S. federal income tax consequences of the exchange of Shares (the “Rolling Shares”) for Topco Common Units pursuant to the Stockholder Rollover Agreements and any Additional Rollover Agreements (the “Rollover Exchange”) to Vapotherm stockholders who enter into such agreements (such stockholders in such capacity, the “Rolling Stockholders”) and the Merger to the stockholders whose Shares will be converted into the right to receive the Per Share Merger Consideration pursuant to the Merger (such stockholders in such capacity, the “Non-Rolling Stockholders”). Rolling Stockholders and Non-Rolling Stockholders should consult their respective tax advisors in light of their particular circumstances and any specific tax consequences relating to the Rollover Exchange and the Merger, including U.S. federal, state, local and non-U.S. income and other tax consequences. For more information, please see “Special Factors—Material U.S. Federal Income Tax Consequences of the Rollover Exchange and the Merger.”

Rolling Stockholders

A Rolling Stockholder generally should not recognize gain or loss in respect of the “Rollover Exchange” for U.S. federal income tax purposes, as the Rollover Exchange is intended to qualify as a tax-deferred exchange of the Rolling Shares for the Topco Common Units under Section 351 of the Internal Revenue Code of 1986, as amended (the “Code”). A Rolling Stockholder’s aggregate adjusted tax basis in the Topco Common Units received pursuant to the Rollover Exchange should equal the aggregate adjusted tax basis of the Rolling Shares exchanged therefor. A Rolling Stockholder’s holding period in the Topco Common Units received pursuant to the Rollover Exchange should include the holding period in the Rolling Shares exchanged therefor.

For more information, please see the information under “Special Factors—Material U.S. Federal Income Tax Consequences of the Rollover Exchange and the Merger.”

Non-Rolling Stockholders

The receipt of cash by Non-Rolling Stockholders in exchange for their Shares in the Merger will be a taxable transaction to Non-Rolling Stockholders for U.S. federal income tax purposes. Such receipt of cash by each Non-Rolling Stockholder that is a U.S. Holder (as defined under “Special Factors—Material U.S. Federal Income Tax Consequences of the Rollover Exchange and the Merger”) generally will result in the recognition of gain or loss in an amount equal to the difference, if any, between the amount of cash that such U.S. Holder receives in the Merger and such U.S. Holder’s adjusted tax basis in the Shares surrendered pursuant to the Merger by such Non-Rolling Stockholder.

Backup withholding may apply to the cash payments made to a U.S. Holder pursuant to the Merger, unless such U.S. Holder complies with certain certification procedures or otherwise establishes a valid exemption from backup withholding.

A Non-Rolling Stockholder that is a Non-U.S. Holder (as defined under “Special Factors—Material U.S. Federal Income Tax Consequences of the Rollover Exchange and the Merger”) generally will not be subject to U.S. federal income tax with respect to the exchange of Shares for cash in the Merger unless such Non-U.S. Holder has certain connections to the United States, but may be subject to backup withholding unless the Non-U.S. Holder complies with certain certification procedures or otherwise establishes a valid exemption from backup withholding.

For more information, please see the information under “Special Factors—Material U.S. Federal Income Tax Consequences of the Rollover Exchange and the Merger.”

Commercially Reasonable Efforts to Complete Merger; Regulatory Filings (page 76)

Pursuant to the Merger Agreement, each of the parties thereto has agreed to, and to cause its respective subsidiaries to, use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, or advisable under applicable laws to consummate the Merger and the other transactions contemplated by the Merger Agreement as promptly as practicable, and, in any event, by or before an outside date of December 31, 2024 (subject to certain potential extensions).

For more information, please see “The Merger Agreement—Commercially Reasonable Efforts to Consummate the Merger; Regulatory Filings.”

No Solicitation (page 97)

The Company has agreed, among other things, not to, and to cause its subsidiaries, and its and their respective directors and officers not to, and to direct its legal counsel, financial advisors and agents serving in such similar capacities not to, and not to authorize or direct its other representatives to, directly or indirectly: (i) initiate, solicit, or knowingly encourage or knowingly facilitate the submission of any Acquisition Proposal (as defined elsewhere in this proxy statement), (ii) participate or engage in discussions or negotiations with any person (other than Parent, Merger Sub, SLR (with respect to the Contemplated Transactions (as defined elsewhere in this proxy statement) or the SLR Financing Agreements and the transactions contemplated thereby) or designees or affiliates of Parent, Merger Sub or SLR (with respect to the Contemplated Transactions or the SLR Financing Agreements and the transactions contemplated thereby)) who has submitted an Acquisition Proposal or any proposal, offer or inquiry relating to, or that would reasonably be expected to lead to, an Acquisition Proposal, (iii) provide any non-public information or afford access to the business, properties, assets, books, records or personnel of the Company or any of its subsidiaries, in each case, to any person or host any meeting (including by telephone or videoconference) with any person (in each case, other than Parent, Merger Sub, SLR (with respect to the Contemplated Transactions or the SLR Financing Agreements and the transactions contemplated thereby), or any designees or affiliates of Parent, Merger Sub or SLR (with respect to the Contemplated Transactions or the SLR Financing Agreements and the transactions contemplated thereby)) or any Rollover Stockholder or potential Rollover Stockholder in connection with an actual or potential investment in Topco in connection with, or for the purpose of knowingly encouraging or facilitating, an Acquisition Proposal or any offer, proposal or inquiry relating to an Acquisition Proposal, (iv) in connection with any Acquisition Proposal, grant any waiver, amendment or release of or under, or fail to enforce, any confidentiality agreement (other than any standstill or similar provision), in each case, in a manner favorable to the counterparty thereto, or (v) enter into any letter of intent, memorandum of understanding, agreement in principle, Merger Agreement, acquisition agreement, or other contract or agreement relating to an Acquisition Proposal (in each case, other than Parent, Merger Sub, SLR (with respect to the Contemplated Transactions or the SLR Financing Agreements and the transactions contemplated thereby), or any designees or affiliates of Parent, Merger Sub or SLR (with respect to the Contemplated Transactions or the SLR Financing Agreements and the transactions contemplated thereby)).

Notwithstanding the foregoing restrictions or any other provisions of the Merger Agreement, if at any time following the date of the Merger Agreement and until the Company’s receipt of the Requisite Stockholder Approval (as defined elsewhere in this proxy statement) the Company receives a bona fide written Acquisition Proposal that did not result from a material breach of the no solicitation covenants in the Merger Agreement and the Board or a committee thereof (including the Special Committee or an alternative special committee of the Board consisting of independent directors) determines in good faith, after consultation with outside legal counsel and financial advisors, constitutes or is reasonably likely to lead to or result in a Superior Proposal (as defined elsewhere in this proxy statement) and that failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Board or the Special Committee (or an alternative special committee of the Board consisting of independent directors) under applicable law, then the Company may terminate the Merger Agreement to enter into an Alternative Acquisition Agreement (as defined elsewhere in this proxy statement), subject to the terms and conditions of the Merger Agreement, including providing Parent notice that the Company intends to terminate the Merger Agreement to enter into such Alternative Acquisition Agreement and giving Parent the opportunity to propose terms of an amendment to the Merger Agreement. For more information, including with respect to the steps required for the Company to terminate the Merger Agreement to enter into an Alternative Acquisition Agreement, please see “The Merger Agreement—No Solicitation” and “The Merger Agreement—Change of the Board Recommendation—Alternative Acquisition Termination.”

If the Company terminates the Merger Agreement as a result of accepting a Superior Proposal (as defined in the Merger Agreement), the Company is required to pay the Termination Fee to Parent. For more information, please see “The Merger Agreement—Termination Fees.”

Conditions to the Merger (page 109)

The obligations of each party to consummate the Merger are subject to the satisfaction or waiver of certain customary conditions, including the following:

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no law, order, injunction or decree will have been issued, enacted, entered, promulgated, or enforced (and still be in effect) by any governmental body and is in effect that prohibits, enjoins, restricts, prevents, or makes illegal the consummation of the Contemplated Transactions;

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the Company will have received the Requisite Stockholder Approval at the Special Meeting;

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the accuracy of the representations and warranties of the Company, Parent and Merger Sub in the Merger Agreement, subject to certain materiality qualifiers, as of the date of the Merger Agreement, the Closing or the earlier date in respect of which any such representation or warranty was specifically made;

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no Company Material Adverse Effect (as defined elsewhere in this proxy statement) having occurred since the date of the Merger Agreement;

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the delivery by the Company to Parent of a customary closing certificate of the Company;

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the delivery by Parent to the Company of a customary closing certificate of Parent;

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the compliance in all material respects by the Company, Parent and Merger Sub of their respective covenants and obligations of the Merger Agreement required to be performed and complied with by the Company, Parent and Merger Sub, respectively, at or prior to the Closing; and

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the SLR Financing Agreements (as defined elsewhere in this proxy statement) having not been revoked or terminated by the Company or any of its subsidiaries.

For more information, please see “The Merger Agreement—Conditions to the Merger.”

The Special Meeting (page 118)

Date, Time and Place of the Special Meeting

The Special Meeting will be held on , 2024, at , Eastern Time, at our principal executive offices located at 100 Domain Drive, Exeter, NH 03833.

Purpose of the Special Meeting

At the Special Meeting, our stockholders of record as of the close of business on , 2024 (the “Record Date”) will be asked to consider and vote on:

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a proposal to adopt the Merger Agreement;

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a proposal to approve, on a non-binding, advisory basis, the compensation that may be paid or become payable to Vapotherm’s named executive officers that is based on or otherwise relates to the Merger Agreement and the transactions contemplated by the Merger Agreement; and

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a proposal to adjourn the Special Meeting to a later date or dates, if necessary or appropriate, including to solicit additional proxies to approve the Merger Agreement Proposal if there are insufficient votes to approve the Merger Agreement Proposal at the time of the Special Meeting.

We do not expect that any matters other than the proposals set forth above will be brought before the Special Meeting, and only matters specified in the Notice of Special Meeting of Stockholders may be acted upon at the Special Meeting.

Record Date; Shares Entitled to Vote; Quorum

You are entitled to receive notice of, and vote at, the Special Meeting if you owned any Shares at the close of business on the Record Date. Each holder of a Share will be entitled to one vote for each such Share owned at the close of business on the Record Date on all matters properly coming before the Special Meeting.

As of the Record Date, there were Shares outstanding and entitled to vote at the Special Meeting. A quorum is necessary to hold a valid Special Meeting. A quorum is the minimum number of Shares required to be present at the Special Meeting for the meeting to be properly held under Vapotherm’s Second Amended and Restated Bylaws (“Bylaws”) and Delaware law. A majority of the outstanding Shares entitled to vote at the Special Meeting, present either in person or by proxy, will constitute a quorum for all purposes at the Special Meeting.

Your Shares will be counted towards the quorum only if you submit a valid proxy (or one is submitted on your behalf by your bank, broker or other nominee based on your instructions), if you vote via the Internet or by telephone, or at the Special Meeting, or if you attend the Special Meeting but abstain from voting. If you return a properly signed proxy card without indicating voting preferences on the proxy card, the Shares represented by that proxy will be counted as present for purposes of establishing a quorum at the Special Meeting and all of such Shares will be voted as recommended by the Board. If you hold your Shares in “street name” and do not give any instruction to your bank, broker or other nominee as to how your Shares should be voted at the Special Meeting for any proposal, those Shares will not be entitled to vote on any proposal at the Special Meeting and will not be counted for purposes of establishing a quorum. However, if you hold your Shares in “street name” and give voting instructions to your bank, broker or other nominee with respect to at least one of the proposals, but give no instruction as to the other proposals, then those Shares will be deemed present at the Special Meeting for purposes of establishing a quorum at the Special Meeting, will be voted as instructed with respect to any proposal as to which instructions were given, and will not be voted with respect to any other proposal.

In the event that a quorum is not present at the Special Meeting, it is expected that the Special Meeting will be adjourned to solicit additional votes.

Vote Required; Abstentions and Failure to Vote

The Merger cannot be consummated unless the Merger Agreement Proposal is approved by the affirmative vote of the holders of a majority of the Shares outstanding at the close of business on the Record Date (the “Requisite Stockholder Approval”).

Because the required vote for the Merger Agreement Proposal is based on the number of outstanding Shares rather than on the number of votes cast, if you fail to authorize a proxy or vote at the Special Meeting, abstain from voting at the Special Meeting, or fail to instruct your bank, broker or other nominee on how to vote, such abstention or failure will have the same effect as votes cast “AGAINST” the Merger Agreement Proposal. As of , 2024, the Record Date for the Special Meeting, Shares constitute a majority of the issued and outstanding Shares.

Approval of the Compensation Proposal, on a non-binding, advisory basis, requires, assuming a quorum is present, the affirmative vote of a majority of votes cast at the Special Meeting on the proposal. The approval of the Compensation Proposal is on a non-binding, advisory basis and is not a condition to the completion of the Merger. If you abstain from voting or if you fail to instruct your bank, broker or other nominee on how to vote on the Compensation Proposal, such abstention or failure will have no effect on the outcome of the Compensation Proposal.

Approval of the Adjournment Proposal requires the affirmative vote of a majority of votes cast at the Special Meeting on the proposal assuming a quorum is present. If you abstain from voting or if you fail to instruct your bank, broker or other nominee on how to vote on the Adjournment Proposal, such abstention or failure will have no effect on the outcome of the Adjournment Proposal.

For more information, please see “Special Meeting.”

The following questions and answers are intended to briefly address potential questions that our stockholders may have regarding the Special Meeting, the Merger or this proxy statement. These questions and answers may not address all questions that are important to you. You should carefully read and consider the more detailed information contained elsewhere in this proxy statement and the annexes to this proxy statement, including, but not limited to, the Merger Agreement, along with all of the documents we refer to in this proxy statement, as they contain important information about, among other things, the Merger and how it affects you. If you have additional questions about the Special Meeting, the Merger or this proxy statement, please see “Who can help answer my questions?” below.

You should read “Special Factors—Purpose and Reasons of Vapotherm for the Merger; Recommendation of the Board and Special Committee; Fairness of the Merger” beginning on page 34 for a discussion of the factors that the Special Committee and the Board considered in determining to recommend the approval of the Merger Agreement Proposal.

In considering the recommendation of the Board, you should be aware that, aside from their interest as stockholders of Vapotherm, our directors and executive officers have certain interests in the Merger that are different from, or in addition to, those of our other stockholders, as described under “Special Factors—Interests of Executive Officers and Directors of Vapotherm in the Merger” beginning on page 57, which the Board was aware of and considered when making its recommendation to our stockholders that the Merger Agreement Proposal be approved.

A control number, located on your proxy card, is designed to verify your identity and allow you to vote your Shares, and to confirm that your voting instructions have been properly recorded when voting electronically over the Internet or by telephone (using the instructions provided in the enclosed proxy card). Please be aware that, although there is no charge for voting your Shares, if you vote electronically over the Internet or by telephone, you may incur costs such as internet access and telephone charges for which you will be responsible.

Even if you plan to attend the Special Meeting in person, you are strongly encouraged to vote your Shares by proxy. If you are a record holder or if you obtain a “legal proxy” to vote Shares that you beneficially own, you may still vote your Shares in person at the Special Meeting even if you have previously voted by proxy. If you are present at the Special Meeting and vote in person, your previous vote by proxy will not be counted.

If your Shares are held in “street name” through a bank, broker or other nominee, you may vote through your bank, broker or other nominee by completing and returning the voting instruction form provided by your bank, broker or other nominee, or, if such a service is provided by your bank, broker or other nominee, electronically over the Internet or by telephone. To vote over the Internet or by telephone through your bank, broker or other nominee, you should follow the instructions on the voting instruction form provided by your bank, broker or other nominee.

Certain holders of Stock Options, RSU Awards and PSU Awards may agree with Parent and Topco to use the cash consideration that would otherwise be received in respect of such awards in the Merger (or the Shares that would otherwise be delivered) in respect of such awards to subscribe for equity in Topco.

For more information, please see “Merger Agreement—Principal Terms of the Merger—Treatment of Vapotherm Equity Awards.”

For more information, please see the information under “Special Factors—Material U.S. Federal Income Tax Consequences of the Rollover Exchange and the Merger.” In addition, you should consult your tax advisor in light of your particular circumstances and any specific tax consequences relating to the Rollover Exchange, including U.S. federal, state, local and non-U.S. income and other tax consequences.

A Non-Rolling Stockholder that is a Non-U.S. Holder (as defined under “Special Factors—Material U.S. Federal Income Tax Consequences of Rollover Exchange and the Merger”) generally will not be subject to U.S. federal income tax with respect to the exchange of Shares for cash in the Merger unless such Non-U.S. Holder has certain connections to the United States, but may be subject to backup withholding unless the Non-U.S. Holder complies with certain certification procedures or otherwise establishes a valid exemption from backup withholding.

For more information, please see the information under “Special Factors—Material U.S. Federal Income Tax Consequences of the Rollover Exchange and the Merger.” In addition, you should consult your tax advisor in light of your particular circumstances and any specific tax consequences relating to the Merger, including U.S. federal, state, local and non-U.S. income and other tax consequences.

If your broker, bank or other nominee holds your Shares, you should also call your bank, broker or other nominee for additional information.

The following, together with the summary of the Merger Agreement set forth under “The Merger Agreement,” is a description of the material aspects of the Merger. While we believe that the following description covers the material aspects of the Merger, the description may not contain all of the information that is important to you. We encourage you to read carefully this entire document, including the Merger Agreement attached to this proxy statement as Annex A, for a more complete understanding of the Merger. The following description is subject to, and is qualified in its entirety by reference to, the Merger Agreement. You may obtain additional information without charge as described under “Where You Can Find More Information.”

We are asking our stockholders to consider and vote on the approval of the Merger Agreement Proposal and the transactions contemplated thereby, including the Merger. Pursuant to the Merger Agreement, subject to the satisfaction or waiver of certain conditions, Merger Sub will merge with and into Vapotherm, with Vapotherm surviving as a wholly owned subsidiary of Parent. If the Merger is completed, the holders of Shares immediately prior to the Merger (other than the Excluded Shares) will have the right to receive the Per Share Merger Consideration of $2.18 per Share in cash, without interest, less any applicable tax withholding, subject to and in accordance with the terms and conditions set forth in the Merger Agreement.

The following chronology summarizes the key meetings and events that led to the signing of the Merger Agreement. This chronology does not purport to catalogue every conversation of or among members of the Special Committee, the Board of Directors, Vapotherm’s management, Vapotherm’s advisors and representatives, or any other parties.

At its regularly-scheduled Board meeting, on October 25, 2023, the Board discussed a range of financing options to fund the Company’s business should the Company’s financial results fall short of plan. The Board explored a wide variety of options, including refinancing or restructuring SLR’s debt and/or raising additional equity capital. A representative of Ropes & Gray LLP (“Ropes & Gray”), outside counsel to the Company, attended the meeting and advised the Board on its fiduciary duties under various restructuring scenarios. No restructuring decisions were made at this meeting; among other reasons, it was not yet clear whether, or the extent to which, the liquidity and going concern risks discussed at the meeting would in fact materialize or require immediate action. The Board directed the Company’s management team to keep the Board apprised of the situation.

Following the Company’s November 8, 2023 earnings call, the Company began informally exploring with third parties the possibility of an equity offering and other strategic alternatives that could provide additional liquidity to the business. However, due to the Company’s high debt load, low stock price and transition to the OTCQX, none of these conversations progressed beyond informal discussions.

Late in the fourth quarter of 2023, despite improvements in the Company’s underlying business, the prospect that the Company’s cash balance during the first half of 2024 could fall below the minimum liquidity threshold established by its lender, SLR, became increasingly probable. At the same time, the Company advised SLR that its currently contemplated 2024 operating plan would likely result in an additional going concern disclosure and potentially a going concern paragraph in the audit opinion of Grant Thornton LLP, the Company’s independent registered public accounting firm. While SLR reserved all of its rights, including its right to declare the Company in default and accelerate its debt, SLR requested that the Company propose a plan to resolve the situation in a manner that protected SLR’s position without adversely affecting the Company’s business. The Company’s consolidated financial statements for the year ended December 31, 2023 included in its Annual Report on Form 10-K include disclosures stating that there is substantial doubt about the Company’s ability to continue as a going concern.

On December 26, 2023, the Company sent SLR a written proposal that contemplated that (i) SLR would convert $50 million of its term debt to convertible debt at a significantly lower interest rate, (ii) the Company would raise additional equity capital from a not yet identified investor, and (iii) SLR would provide an asset-based line of credit to help fund the Company’s operations until such time as it became cash flow positive (the “December 26 Proposal”). If accepted, the December 26 Proposal would have resulted in SLR owning approximately 40% of the Company on a fully-diluted basis.

On a telephone call on January 24, 2024, between Joseph Army, the Company’s Chief Executive Officer, John Landry, the Company’s Chief Financial Officer, and representatives of SLR, the representatives of SLR indicated that, among other things, the economic terms of the December 26 Proposal were not acceptable to SLR, the December 26 Proposal was not actionable for SLR until an equity investor was identified, and SLR was considering alternatives as a means to protect its position and preserve the viability of the Company, including through a prepackaged bankruptcy or converting a portion of its term loan to an alternative debt security. The representatives of SLR stated that SLR was not open to becoming a direct or indirect equity investor in a public company. During the call, Mr. Landry stated the Company’s view that a bankruptcy proceeding would not be in the best interests of the Company or the Company’s stockholders, including because a bankruptcy proceeding likely would result in significant customer and employee attrition, erosion of the Company’s value, and would likely result in the Company’s stockholders receiving no value for their shares.

On a telephone call on January 31, 2024, between Mr. Army, Mr. Landry, and representatives of SLR, the parties discussed, at a high-level, other potential alternatives to a prepackaged bankruptcy for the Board and SLR to each consider, which included SLR converting some amount of term debt into preferred equity, SLR retaining some amount of term debt, and the Company securing a third-party equity investment of at least $5 million into the business.

On February 2, 2024, SLR offered, for discussion purposes only, potential refinements to the high-level alternatives discussed during the January 31 call. Later that day, the same parties joined a call to discuss that proposal.

Subsequent to the February 2, 2024 call with representatives of SLR, to determine whether the alternatives discussed between representatives of the Company and SLR was potentially viable, representatives of the Company began reaching out to potential investors already familiar with the Company, including Perceptive, to gauge interest in entering into a confidentiality agreement with the Company pursuant to which the Company would provide nonpublic information about its restructuring efforts and the need to secure additional capital. As a result of this outreach, six potential investors, including Perceptive, elected to enter into confidentiality agreements with the Company. None of those confidentiality agreements contained standstill restrictions.

On February 7, 2024, the Board met and discussed the status of the Company’s ongoing restructuring discussions with SLR and its outreach to potential investors.

On February 14, 2024, the Company entered into confidentiality agreements with Perceptive and with another potential investor, which we refer to as “Potential Investor A”.

On February 15, 2024, the Company shared nonpublic financial information about the Company to Potential Investor A.

On February 16, 2024, Company management held an initial call with another potential investor, which we refer to as “Potential Investor B”, to gauge interest in entering into a confidentiality agreement with the Company.

On February 22, 2024, the Company entered into a confidentiality agreement with Potential Investor B. Following execution of the confidentiality agreement, on the same day, the Company shared nonpublic financial information about the Company to Potential Investor B. Potential Investor B advised the Company it had co-invested with Potential Investor A in the past and would like to schedule a joint call with Potential Investors A and B and the Company. This call was scheduled for February 29, 2024.

Recognizing the urgent necessity of restructuring the SLR debt and SLR’s unwillingness to hold public company equity, the Board, acting by unanimous written consent established the Special Committee, which was effective as of February 26, 2024 and comprised of independent directors, to oversee, negotiate and make recommendations to the full Board regarding strategic alternatives for the Company, with the goal of achieving the best possible outcome for the Company, including its stockholders, creditors, customers, and employees. Directors James Liken, Mary Beth Moynihan, Donald Spence and Elizabeth Weatherman were appointed as members of the Special Committee and are not being compensated for their serving on the Special Committee. The Special Committee adopted a charter, elected Donald Spence as Committee Chairperson, and received regular situational briefings from Mr. Landry, Mr. Army, and James Lightman, the Company’s General Counsel. The Special Committee also scheduled weekly meetings. On February 26, 2024, the Special Committee met and considered a potential restructuring transaction structure, which contemplated the merger of the Company into a newly-formed private company along with a concurrent purchase of preferred stock for cash by a third-party investor and conversion by SLR of a portion of its debt into preferred stock (the “February Company Proposal”). The potential structure contemplated using a portion of cash proceeds to pay current stockholders who did not become stockholders of the private company.

On February 26, 2024, following the meeting of the Special Committee, the Company provided Perceptive with the February Company Proposal.

On February 28, 2024, at Perceptive’s request, Company management provided Perceptive with additional nonpublic financial information about the Company.

From February 28, 2024 to February 29, 2024, Anthony Arnerich, a member of the Board and general partner of 503 Partners, LLC, contacted several investors in 503 Partners, LLC to gauge their interest in a potential transaction with the Company. Three of these parties executed confidentiality agreements with the Company (none of which contained standstill restrictions) and certain nonpublic financial information about the Company was shared with these parties. All of these parties ultimately indicated that they were not interested in a potential transaction involving the Company.

On February 29, 2024, the Company entered into a confidentiality agreement with a potential investor, which we refer to as “Potential Investor C”. Following execution of the confidentiality agreement, on the same day, Company management sent nonpublic financial information about the Company to representatives of Potential Investor C, which was substantially identical to the February Company Proposal and other materials previously provided to Perceptive and Potential Investors A and B.

On February 29, 2024, Mr. Army and Mr. Landry had a call with Potential Investors A and B during which they answered questions about the Company’s business, its objectives, and its restructuring efforts with SLR. After discussion, Potential Investors A and B declined to participate in a restructuring transaction along the lines of what the Company and SLR had discussed on February 2, 2024. Mr. Army and Mr. Landry indicated that the position of Potential Investors A and B was not aligned with the Company’s current restructuring objectives and, therefore, ceased further engagement with Potential Investors A and B at that time.

On March 3, 2024, the Company entered into a confidentiality agreement with a potential investor, which we refer to as “Potential Investor D”.

On March 5, 2024, Company management had a call with Potential Investor D in which a representative of Company management verbally shared nonpublic information about the Company. Potential Investor D indicated that it was unlikely it would be able to make an investment in the Company given the terms contained in Potential Investor D’s investment charter.

On March 7, 2024, Perceptive sent a non-binding term sheet to Mr. Army (the “March 7 Term Sheet”). The March 7 Term Sheet contemplated a transaction in which Perceptive would make a cash investment in the Company in exchange for shares of preferred stock, SLR would convert a significant portion of its term debt into shares of preferred stock, the Company would be taken private, and stockholders of the Company would receive a cash payment funded by Perceptive’s cash investment. Mr. Army promptly sent a copy of the March 7 Term Sheet to the Special Committee.

Later, in the afternoon of March 7, 2024, at the request of Perceptive, representatives of Perceptive, Cooley LLP (“Cooley”), counsel to Perceptive, and Ropes & Gray met by videoconference to discuss the potential transaction structure. Following the conclusion of the meeting, the Company sought and obtained permission from Perceptive to share the March 7 Term Sheet with SLR.

On March 11, 2024, the Company verbally received high level feedback from SLR on the March 7 Term Sheet, which the Company verbally conveyed to Perceptive. In its verbal feedback, SLR stated its view that, relative to Perceptive, SLR’s rights and powers under the proposed post-transaction governance structure, including that (i) Perceptive would have had a right to designate a majority of the directors that could be designated by the holders of the Series A Preferred Stock to the board of directors of the post-transaction entity, (ii) it was unclear whether SLR would have had “drag along” rights despite owning more than 50% of the post-transaction entity and (iii) the director appointed by Perceptive would have certain veto rights for so long as the holders of Series A Preferred Stock were entitled to appoint a director to the board of directors of the post-transaction entity while SLR did not have any such veto rights, were not commensurate with the parties’ relative ownership percentages in the Company following the Closing.

On March 12, 2024, the Special Committee met to discuss the March 7 Term Sheet. The Special Committee determined that the Special Committee, led by Mr. Spence, would lead negotiations of the terms of any proposed transaction involving the Company and that management’s role would be limited to facilitation and tactical support, providing information about the Company’s business and responding to diligence requests. The Special Committee also decided to engage its own financial advisor to assess the fairness, from a financial point of view, of any transaction that was negotiated. Mr. Spence requested that Mr. Army promptly schedule calls with Perceptive and SLR to introduce Mr. Spence and explain his role.

Also, on March 12, 2024, representatives of Cooley sent to representatives of Ropes & Gray a draft illustrative transaction timeline.

On March 15, 2024, Perceptive sent the Company a revised term sheet (the “March 15 Term Sheet”), which was intended to be responsive to SLR’s feedback. The March 15 Term Sheet provided for, among other things, equal representation on the board of directors for SLR and Perceptive in the post-transaction entity, mutually acceptable “drag along” rights as between those parties, and an acknowledgment that any post-transaction loan amendment needed to be acceptable to SLR. The Company promptly sent the March 15 Term Sheet to Mr. Spence and to SLR. SLR provided verbal feedback to the Company the same day that the total loan balance used to calculate the pro forma post-closing preferred equity and post-closing loan balance in the March 15 Term Sheet was inaccurate, which Ropes & Gray incorporated into a revised term sheet that it shared with SLR later that day.

On March 16, 2024, SLR verbally communicated additional comments to Mr. Landry. All comments on the March 15 Term Sheet were conveyed to Perceptive on March 18, 2024, which included SLR’s desire to ensure that all fees owed to SLR by the Company under its existing term loan agreement were properly included and allocated in SLR’s post-transaction preferred stock and term debt amounts.

On March 20, 2024, Potential Investor C sent to representatives of the Company’s management team a non-binding indication of interest, which it characterized as a “strawman proposal” (the “Potential Investor C Proposal”). The Company’s management team promptly forwarded the Potential Investor C Proposal to Mr. Spence.

On March 21, 2024, Mr. Spence, together with members of the Company’s management team, participated in a call with representatives of each of SLR and Perceptive to formally introduce SLR to Perceptive, and to introduce Mr. Spence as the Special Committee representative who would lead negotiations on behalf of the Company. After introductions, Mr. Spence and representatives of the Company exited the call, and representatives of each of Perceptive and SLR engaged in direct negotiations.

On March 22, 2024, Mr. Spence, together with members of the Company’s management team, participated in a call with representatives of each of SLR and Potential Investor C to formally introduce SLR to Potential Investor C, and to introduce Mr. Spence as the Special Committee representative who would lead any negotiations on behalf of the Company. After introductions, Mr. Spence and representatives of the Company exited the call, and representatives of each of Potential Investor C and SLR engaged in direct negotiations.

On April 3, 2024, Mr. Army and Mr. Landry held an initial call with a potential investor, who we refer to as “Potential Investor E,” to gauge interest in entering into a confidentiality agreement with the Company. On the same day, the Company and Potential Investor E entered into a confidentiality agreement.

On April 4, 2024, Company management shared nonpublic financial information about the Company with Potential Investor E.

On April 5, 2024, representatives of Company management had a call with Potential Investor E to answer questions about the nonpublic financial information that was provided to Potential Investor E the day before.

On April 10, 2024, Mr. Spence had a call with Potential Investor E during which Potential Investor E shared with Mr. Spence, at a high level, its views on a potential investment in the Company in light of its experience investing in distressed situations.

On April 16, 2024, Mr. Spence and Potential Investor E spoke by phone to continue discussions relating to a potential investment by Potential Investor E in the Company. During such call, Potential Investor E requested a direct introduction to SLR.

On April 16, 2024, the Special Committee met and discussed the ongoing evaluation of restructuring alternatives, including investor outreach and discussions to date and Potential Investor E’s request for an introduction to SLR. Given the urgency of addressing the Company’s liquidity needs, the high level of engagement from Perceptive, which had submitted a reasonably detailed term sheet, engaged counsel, and was in active discussions with SLR, and the engagement with Potential Investor C, which had sent a strawman proposal, the Special Committee instructed Mr. Spence to advise Potential Investor E that it would need to submit a non-binding term sheet in order for the Company to introduce Potential Investor E to SLR.

On April 18, 2024, Mr. Spence conveyed to Potential Investor E the position of the Special Committee regarding submission of a non-binding term sheet. Potential Investor E advised Mr. Spence that it would consider doing so. Ultimately, however, Potential Investor E did not submit a term sheet or written expression of interest.

On April 19, 2024, a representative of SLR sent Mr. Spence and the Company a non-binding term sheet and indicated that, apart from a few bracketed items, the term sheet was in a form that both SLR and Perceptive were prepared to execute (the “April 19 Term Sheet”).

On April 23, 2024, the Special Committee met to review and discuss the April 19 Term Sheet and the status of discussions with potential investors, including Potential Investor C. The Special Committee acknowledged that the level of engagement from Perceptive significantly exceeded that of Potential Investor C, with Perceptive having engaged legal counsel and submitted multiple term sheets. The Special Committee also discussed the fact that time was of the essence in resolving the Company’s liquidity situation and the timeline to entering into a definitive agreement with Perceptive appeared shorter than would be the case with Potential Investor C, especially since SLR and Perceptive appeared to have reached substantial agreement on terms set forth in the April 19 Term Sheet under consideration by the Special Committee and the Board, whereas SLR and Potential Investor C were directly negotiating the Potential Investor C Proposal and the Company was not yet involved in such negotiations. The Special Committee also discussed that, given the Company’s liquidity and solvency concerns, the April 19 Term Sheet offered the most favorable outcome for the Company and its stockholders, the Special Committee could reasonably expect given the current situation and the alternative of a bankruptcy that was unlikely to yield any consideration to the Company’s stockholders. In light of the foregoing, the Special Committee determined, after reviewing the terms of the April 19 Term Sheet and the Potential Investor C Proposal, to recommend to the Board that the April 19 Term Sheet was substantially acceptable with minor adjustments. Mr. Spence determined to reserve time on the Board agenda for a full discussion of the April 19 Term Sheet given a regular quarterly Board meeting was scheduled for the following morning.

The Company’s full Board of Directors met on April 24, 2024, at which all members of the Board were present. Mr. Spence reviewed the terms of the April 19 Term Sheet with the Board and highlighted the points the Special Committee believed the Company should seek to revise, such as the purchase of directors’ and officers’ liability insurance coverage (including “tail” coverage) for departing Board members and members of Company management and clarifying (i) the fact that Company employees who are accredited investors could roll their equity in the potential transaction, (ii) the expense reimbursement obligations in the event that the potential transaction did not close and (iii) the terms of the series A preferred stock (“Series A Preferred”) contemplated by the potential transaction, including liquidation preference and cumulative dividend rights. The Board agreed that the Company should respond with a revised version showing the Company’s proposed edits. Later that same day, Mr. Spence sent to representatives of each of SLR and Perceptive a revised version of the April 19 Term Sheet, which reflected the Company’s proposed revisions (the “April 24 Term Sheet”).

On April 25, 2024, a representative of SLR sent Mr. Spence a further revised version of the April 24 Term Sheet, containing minor clarifying edits. On the morning of April 26, 2024, Mr. Spence updated the Special Committee by email, explaining that the parties were close to agreement on the proposed term sheet and the only remaining substantive item concerned allocation of legal expenses. Representatives of the each of Company, SLR and Perceptive continued to negotiate this issue throughout the day.

On April 27, 2024, Mr. Spence notified the Board that the remaining issue had been resolved by estimating that certain reimbursable legal expenses would be approximately $10 million, and the parties expected to execute a non-binding term sheet on substantially the same terms as those discussed with the Board at the April 24 Board meeting.

On April 29, 2024, SLR, Perceptive and the Company executed the nonbinding term sheet (the “Final Term Sheet”). The Final Term Sheet permitted Perceptive and SLR to conduct confirmatory diligence, provided for the acquisition of the outstanding shares of the Company’s common stock for $2.65 per share (a 112% premium over the closing price of Company stock on the OTCQX on April 29, 2024 of $1.25 per share) (the “April 27 Merger Consideration”) via a merger. The Final Term Sheet also provided that Perceptive would purchase $40 million of to-be-issued Topco Series A Preferred Units, a portion of which purchase price would be used to fund the April 27 Merger Consideration, immediately prior to the closing of the proposed merger, and that SLR would convert approximately $75.3 million of its outstanding term loan balance to Series A Preferred. In addition, the Final Term Sheet provided that Perceptive’s post-transaction ownership percentage was anticipated to be approximately 24.3%; SLR’s post-transaction ownership percentage would be approximately 50.6%; and an equity incentive pool to be created for Company employees post-merger would be equal to 15% (inclusive of presently outstanding awards that would convert in the transaction), in each case, on a fully diluted basis, with the balance to be owned by certain existing stockholders who may be invited to exchange their Company shares for equity in the private successor entity in lieu of receiving the $2.65 per share cash merger consideration. Per the terms of the Final Term Sheet, SLR would also hold $40 million of term debt following the closing of the proposed transaction. Following execution of the Final Term Sheet, Perceptive and SLR began conducting confirmatory due diligence.

Between May 8, 2024 and May 23, 2024, representatives of Latham & Watkins LLP (“Latham”), counsel for SLR, Cooley and Ropes & Gray held several conference calls to discuss, among other things, allocation of work streams, proposed transaction structure, certain provisions of the Company’s equity plans and a proposed timeline for seeking to draft, negotiate, and execute transaction documents and announce a transaction.

On May 17, 2024, after interviewing several financial advisory firms, the Special Committee engaged Scalar, LLC (“Scalar”) to act as Special Committee’s financial advisor and to render an opinion with respect to the fairness, from a financial viewpoint, to the stockholders of the Company of the consideration to be received in the proposed transaction.

On May 22, 2024, representatives of Perceptive and SLR contacted Mr. Spence by telephone and advised him that, based on both a more accurate understanding of the Company’s capital structure and an increase in the fully diluted share count identified during diligence, they required a reduction in the per share cash merger consideration from $2.65 to $2.18 per share (the “Per Share Price Reduction Proposal” and the $2.18 per share price, the “Merger Consideration”) to account for the increase in fully diluted shares that Perceptive and SLR had not factored in based on the information available to them when initially deriving the April 27 Merger Consideration in the Final Term Sheet. The total transaction equity value remained unchanged from the Final Term Sheet. The Merger Consideration of $2.18 per share represented an approximate 173% premium over the Company’s OTCQX closing share price of $0.80 per share on May 21, 2024.

On May 23, 2024, representatives of Ropes & Gray sent an initial draft of the Merger Agreement to representatives of Latham and Cooley, which included, among other terms, a proposed Company termination fee equal to 2.5% of transaction equity value of the potential transaction.

In late May 2024, the Company developed a list of 13 stockholders based on their significant share ownership and accredited investor status, which included Mr. Army and Mr. Landry, to approach to determine whether such stockholder would enter into confidentiality agreements to receive nonpublic information about potentially rolling their equity in the potential transaction.

On May 28, 2024, the Special Committee met to review and discuss the Per Share Price Reduction Proposal. Following discussion, the Special Committee agreed with Mr. Spence’s proposed approach of seeking to understand the financial assumptions underlying the Per Share Price Reduction Proposal, arguing against the Per Share Price Reduction Proposal if such financial assumptions did not support the Per Share Price Reduction Proposal and generally to negotiate the highest per share cash price possible. The Special Committee also acknowledged that $2.18 per share represented a favorable result for the Company stockholders.

On May 28, 2024, representatives of the Company, together with representatives of Perceptive and SLR, approved the list of 13 stockholders and outreach by representatives of the Company began on May 29, 2024. The Company entered into confidentiality agreements (none of which included standstill restrictions) with 11 of the 13 stockholders (with Mr. Army and Mr. Landry not needing confidentiality agreements) and began scheduling discussions with such stockholders. The Company completed initial discussions with such stockholders by June 4, 2024, and subsequently, the Company responded to follow-up questions from those stockholders regarding the Company’s performance, transaction structure and post-closing capitalization structure. The Company responded to all follow-up inquiries by June 14, 2024 and, of the 13 stockholders contacted, four of the Company’s significant stockholders elected to roll their shares in the potential transaction, and the other nine stockholders declined. The four stockholders who agreed to enter into Stockholder Rollover Agreements on June 17, 2024 in connection with the signing of the potential transaction included Mr. Army, Mr. Landry, and Mr. Arnerich. Of the nine stockholders who declined, the following stockholders ultimately agreed to enter into Voting and Support Agreements on June 17, 2024 in connection with the signing of the potential transaction: Crow’s Nest Holdings LP, Kent Lake Capital LLC, Guines LLC and certain entities associated therewith, including Roystone Capital Management LP and Roystone Capital Holdings, LLC, and The Irrevocable Larson Family Investment Trust.

On May 30, 2024, representatives of Latham sent to representatives of Ropes & Gray a list of issues that Perceptive and SLR identified in the draft Merger Agreement, which included, among other things, the proposed amount of the Company termination fee, the need for a cap on Parent’s aggregate potential cash damages, treatment of equity awards and warrants and requests for a condition requiring that certain specified health care regulatory approvals be obtained prior to closing

On May 31, 2024, representatives of Cooley, Latham and Ropes & Gray met by videoconference to discuss the list of issues identified by SLR and Perceptive in the draft Merger Agreement.

On June 3, 2024, after members of the Company’s management discussed the financial assumptions underlying the Per Share Price Reduction Proposal, Mr. Spence met again with representatives of SLR, stating that the per share cash merger consideration should remain at $2.65. Representatives of SLR and Perceptive, however, indicated that the Per Share Price Reduction Proposal was solely based on the inclusion of a material number of fully diluted shares that had not been included in initial calculations to derive the Merger Consideration, and indicated that they would move forward only if the Company accepted the Per Share Price Reduction Proposal.

On June 4, 2024, the Special Committee met and again discussed the Per Share Price Reduction Proposal, noting that $2.18 represented a substantially more favorable result to the Company’s stockholders than the expected treatment of Company stockholders in the event of bankruptcy as well as a substantial premium over the Company’s closing price of $0.785 per share on June 3, 2024.

On June 8, 2024, Latham and Cooley circulated a revised draft of the Merger Agreement which reflected the Per Share Merger Consideration of $2.18 and, among other things, proposed a termination fee equal to $1 million, which would be payable by the Company if the Merger Agreement was terminated under certain specified circumstances, a cap limiting Parent’s aggregate potential cash damages to $1 million, limitations on when the Company could obtain an award of specific performance and a condition requiring that certain specified health care regulatory approvals be obtained prior to closing. Also, throughout the week of June 8, 2024, the parties exchanged drafts of and negotiated the ancillary transaction documents.

On June 11, 2024, the Special Committee met to review and discuss the revised draft of the Merger Agreement.

On June 12, 2024, representatives of SLR, Perceptive, and the Company met by videoconference throughout the day to discuss the status of open issues. At these meetings, representatives of SLR proposed a cap on Perceptive’s aggregate damages equal to $3 million. Following further discussions throughout the day, SLR withdrew its proposal with respect to the $3 million cap. Also, during one of these discussion, Mr. Army proposed that the Company termination fee be reduced to less than $1 million, which Perceptive rejected, insisting that the value of the Company termination fee be equal to the value of the cap on Parent’s aggregate potential cash damages. Also, on June 12, 2024, representatives of Latham, Cooley and Ropes & Gray met by videoconference to discuss the open issues in the draft Merger Agreement and ancillary transaction documents. From June 12, 2024 through signing of the Merger Agreement, the principals held daily calls to discuss open issues in the Merger Agreement and ancillary transaction documents.

On June 13, 2024, Ropes & Gray sent a revised draft of the Merger Agreement to Latham and Cooley. The draft Merger Agreement (i) reserved for ongoing discussion amongst the principals of the proposed Company termination fee and cap on Parent’s aggregate potential cash damages, (ii) rejected a condition requiring that certain specified health care regulatory approvals be obtained prior to closing and (iii) eliminated the impediments to a specific performance remedy. Also, on June 13, 2024, Mr. Spence held calls with Lance Berry, Mr. Arnerich and Lori Knowles, the other members of the Board not serving on the Special Committee, to update them on the status of the Merger Agreement and the open issues, and to respond to questions regarding the status of negotiations.

On June 13, 2024, Mr. Army and Mr. Spence had a call with representatives of each of Perceptive and SLR to consider the Company’s post-closing liquidity requirements in light of, among other things, the possibility that (i) fewer current stockholders than anticipated may elect to roll their equity into the post-transaction entity, (ii) the transaction took longer to negotiate than anticipated and may take longer to close than expected, and (iii) transaction expenses exceeded estimates. Based on these concerns, Perceptive agreed to increase its equity investment from $40 million to $50 million, resulting in expected immediate post-transaction ownership percentages to change to approximately 61.8% for SLR and approximately 37.4% for Perceptive.

On June 14, 2024, Latham and Cooley sent Ropes & Gray a revised draft of the Merger Agreement, and the parties continued to negotiate the terms of the Merger Agreement and ancillary transaction documents, including an amendment to SLR’s existing term loan agreement to provide for interim funding until the transaction closed and, contingent on the transaction closing, a new term loan maturity date and updated loan terms for the remaining $40 million post-transaction SLR indebtedness. The draft reserved for further consideration the conditions of non-mutual extension of the outside date and proposed certain additional conditions to closing.

Given the parties’ broad agreement on material economic terms, meetings of the Special Committee, the full Board and the Compensation Committee were scheduled for the evening of June 16, 2024 for the purpose of reviewing and, if appropriate, approving the transaction. Representatives of Scalar were invited to attend and present an opinion as to the fairness of the Merger.

On June 15, 2024, Scalar shared its conflicts disclosure with the Special Committee, which identified that, in the past two years, (i) Scalar had not performed any valuation services for SLR and (ii) Scalar had performed valuation services for Perceptive and its current or former portfolio companies for which Scalar received in the aggregate $310,000 (excluding fees related to the engagement in connection with the potential transaction). Scalar is not currently performing any valuation services for SLR, Perceptive, or any of their respective portfolio companies.

Over the course of the day on June 15, 2024, and continuing into the morning of June 16, 2024, subject to the approval of the Special Committee and the Board, the parties reached agreement on all material terms of the Merger Agreement and ancillary transaction documents. A substantially final set of transaction documents was shared with the Board for review early in the afternoon of June 16, 2024. A small number of minor changes were circulated later that afternoon and discussed with the Board at its meeting on June 16, 2024.

In the evening of June 16, 2024, a meeting of the Special Committee was held. At this meeting, representatives of Scalar delivered to the Special Committee Scalar’s oral opinion, subsequently confirmed in Scalar’s written opinion, dated as of June 16, 2024, to the effect that, based upon and subject to the various assumptions and limitations set forth in the written opinion, as of June 16, 2024, the Per Share Merger Consideration to be received is fair, from a financial point of view, to the holders of Common Stock (other than the Company, Parent, SLR, Parent Sponsor, the Rollover Stockholders and their respective affiliates). For additional information, see the section entitled “Opinion of Scalar, LLC” and Annex F to this proxy statement. Also at this meeting, representatives of Ropes & Gray reviewed with the members of the Special Committee their fiduciary duties under Delaware law, including with respect to the potential transaction, and the material terms of the Merger Agreement and other ancillary transaction documents. After discussion, the Special Committee unanimously voted to recommend approval of the transaction to the Company’s full Board. Immediately following the Special Meeting, a meeting of the full Board was convened, with representatives of Scalar and Ropes & Gray attending. Mr. Spence reviewed with the full Board the conclusion and recommendation of the Special Committee, as well as the fairness opinion of Scalar, and noted that representatives of Scalar were available for questions. For additional information, see “—Purpose and Reasons of Vapotherm for the Merger; Recommendation of the Board and the Special Committee; Fairness of the Merger”. A representative of Ropes & Gray reminded the Board that Perceptive and its affiliates are clients of Ropes & Gray, but that no member of the core Ropes & Gray team advising on the potential transaction is a member of the core Ropes & Gray team advising on current matters for Perceptive. Since January 1, 2022, Ropes & Gray has received fees from Perceptive and Perceptive investment funds in an aggregate amount of less than $800,000. In addition, since January 1, 2022, Ropes & Gray has received fees from companies in which Perceptive investment funds hold a controlling interest in an aggregate amount of less than $17 million, and Ropes & Gray has received reimbursement of fees from companies in which Ropes & Gray represented Perceptive in a minority investment in an aggregate amount of less than $1.5 million. The Board then voted unanimously to approve the Merger Agreement and to recommend that the Company’s stockholders adopt the Merger Agreement and approve the Merger. Immediately following the Board meeting, the Compensation Committee of the Board met and unanimously approved the compensation matters described in the Merger Agreement.

On the morning of June 17, 2024, the Company, Topco and Parent executed the Merger Agreement, and the parties issued a joint press release announcing entry into the Merger Agreement.

Purpose and Reasons of Vapotherm for the Merger; Recommendation of the Board and the Special Committee; Fairness of the Merger

As described under “Background of the Merger,” the Board duly established the Special Committee and delegated to it the exclusive power and authority, among other things, to (i) review, evaluate, negotiate, and determine the advisability of a potential transaction involving a restructuring of the Company’s indebtedness, including the authority to determine not to proceed with such a transaction; (ii) oversee the processes and procedures related to assessment of a potential transaction; (iii) propose, accept, reject or negotiate the price, structure, terms and conditions of a potential transaction; (iv) determine whether the potential transaction is fair to, and in the best interests of, Vapotherm and our stakeholders, including our creditors and our stockholders; (v) with respect to any actions required to be taken by the Board with respect to the potential transaction, recommend to the Board what action should be taken; (vi) from time to time and at full meetings of the Board provide reports to the Board regarding the activities of the Special Committee; and (vii) take such other actions relating to the potential transaction as the Special Committee deems necessary, appropriate or advisable. The Board did not retain an unaffiliated representative to act solely on behalf of Vapotherm’s unaffiliated security holders for purposes of negotiating the terms of the Merger or preparing a report concerning the fairness of the Merger. However, the Board considered the analysis and recommendations of the Special Committee, among other factors, in the course of reaching its determination and recommendations discussed in this section. The effectiveness of the Contemplated Transactions, including the Merger, is not structured so that approval of at least a majority of the unaffiliated security holders is required. However, the Board believes that, notwithstanding the absence of such approval, the Contemplated Transactions, including the Merger, are substantively and procedurally fair to the Company’s unaffiliated security holders for the reasons it considered as described in more detail in this section.

The Special Committee, acting with the advice and assistance of its independent financial advisor, considered the merits and risks of the Merger and the transactions contemplated in connection therewith, and after careful consideration, at a meeting of the Special Committee held on June 16, 2024, the Special Committee, among other things, unanimously (i) determined that the Merger and the other Contemplated Transactions are advisable, fair to and in the best interests of the Company; (ii) recommended that the Board (A) approve and declare advisable that the Company enter into the Merger Agreement and certain other transaction documents and the SLR Loan Agreement to which the Company is a party and perform its covenants and other obligations therein, and consummate the Contemplated Transactions, including the Merger, upon the terms and subject to the conditions set forth therein and (B) direct that the adoption of the Merger Agreement be submitted to a vote of the Company’s stockholders at a meeting of the Company’s stockholders; (iii) subject to the terms and conditions of the Merger Agreement, recommended that the Company’s stockholders approve the adoption of the Merger Agreement and approve the Merger on the terms and subject to the conditions set forth in the Merger Agreement; and (iv) recommended to the Board the further authorization and approval of all other matters reasonably required to consummate the Contemplated Transactions (the “Required Matters”):

On June 16, 2024, after careful consideration, based in part on the unanimous recommendation of the Special Committee, whose analyses and determinations the Board adopted as its own in its evaluation of the fairness of the Merger, the Board, pursuant to resolutions adopted at a meeting of the Board, among other things (i) determined that the Merger and the other Contemplated Transactions are advisable, fair to and in the best interests of the Company and the Company’s stockholders (other than Parent and its affiliates and any Rollover Stockholders (including any Company stockholder that may execute an Additional Rollover Agreement)); (ii) approved and declared advisable that the Company enter into the Merger Agreement and certain other transaction documents and the SLR Loan Agreement to which the Company is or will be a party and perform its covenants and other obligations therein, and consummate the Contemplated Transactions and such other transaction documents, including the Merger, upon the terms and subject to the conditions set forth therein; (iii) directed that the adoption of the Merger Agreement be submitted to a vote of the Company’s stockholders at a meeting of the Company’s stockholders; (iv) subject to the terms and conditions of the Merger Agreement, recommended that the Company’s stockholders approve the adoption of the Merger Agreement and approve the Merger on the terms and subject to the conditions set forth in the Merger Agreement; and (v) authorized and approved all other matters reasonably required to consummate the Contemplated Transactions, including the Required Matters.

Accordingly, the Board recommends that you vote “FOR” the Merger Agreement Proposal at the Special Meeting.

In considering the recommendations of the Board with respect to the Merger, you should be aware that executive officers and directors have certain interests in the Merger that may be different from, or in addition to, the interests of our stockholders generally. The Special Committee, consisting entirely of independent directors, and the Board were aware of these interests and considered them, among other matters, in evaluating the Merger Agreement and the transactions contemplated thereby, including the Merger and in making its decision to recommend that the Board adopt and approve the Merger Agreement and the transactions contemplated thereby, including the Merger. For more information about these interests, please see “Special Factors—Interests of Executive Officers and Directors of Vapotherm in the Merger.”

The Special Committee engaged its own financial advisor and received advice throughout the negotiations from such advisors. Since the members of the Special Committee are disinterested with respect to the transactions contemplated by the Merger Agreement, independent of, and not affiliated with, Parent, SLR and/or each of their respective affiliates, the Special Committee believed that it could effectively represent the interests of the Company’s stockholders in negotiating the terms of the Merger Agreement and the transactions contemplated thereby, including the Merger, and in making its decision to recommend that the Board adopt and approve the Merger Agreement and the transactions contemplated thereby, including the Merger.

In evaluating the Merger Agreement and the transactions contemplated thereby, including the Merger, and making the decisions, determinations and recommendations described above, the Special Committee and the Board considered, among other things, a number of procedural safeguards that they believed were and are present to ensure the fairness of the Merger Agreement and the transactions contemplated thereby, including the Merger, and to permit the Special Committee to represent effectively the interests of the Company’s stockholders. These procedural safeguards include, among other things, the following, which are not intended to be exhaustive and are not presented in any relative order of importance:

The Special Committee and the Board concluded that, overall, the potentially positive factors outweighed the uncertainties, risks and potentially negative factors relevant to the Merger Agreement and the transactions contemplated thereby, including the Merger. Accordingly, the Special Committee and the Board determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are advisable, fair to, and in the best interests of, Vapotherm and our stockholders (other than the Rollover Stockholders (or any Company stockholders that may execute an Additional Rollover Agreement)). In addition, the Special Committee believes that the Merger is fair to Vapotherm’s “unaffiliated security holders,” as such term is defined in Rule 13e-3 of the Exchange Act.

Accordingly, the Board recommends that you vote “FOR” the Merger Agreement Proposal at the Special Meeting.

The Board believes, based on its consideration of, among other things, the factors described above, that the Merger Agreement and the transactions contemplated thereby, including the Merger, are substantively and procedurally fair to the Company’s unaffiliated security holders. The Board produced the foregoing fairness determinations on behalf of the Company. The Special Committee and the Board are not aware of any firm offer for a merger, sale of all or a substantial part of the Company’s assets, or a purchase of a controlling amount of the Company securities having been received by the Company from anyone, other than a filing person in the two years preceding the signing of the Merger Agreement.

The foregoing discussion is not exhaustive, but is intended to summarize the material information and factors considered by the Special Committee and the Board in their consideration of the Merger Agreement and the transactions contemplated thereby, including the Merger. The Special Committee and the Board reached the decision to approve the entry into the Merger Agreement and recommend its adoption by the Company’s stockholders in light of the factors described above and other factors that the Special Committee and the Board believed were appropriate. In view of the variety of factors and the quality and amount of information considered, the Special Committee and the Board did not find it practicable to and did not quantify or otherwise assign relative weights to the specific factors considered in reaching their determinations. In addition, each of the Special Committee members and Board members may have given different weight to different factors. The Special Committee and the Board conducted an overall review of the factors described above, including thorough discussions with the Company’s management and the Special Committee’s financial advisor, and considered the factors overall to be favorable to, and to support, their decisions, determinations and recommendations. It should be noted that this explanation of the reasoning of the Special Committee and the Board and certain information presented in this section is forward- looking in nature and should be read in light of the factors set forth under “Special Note Regarding Forward-Looking Statements.”

In considering the fairness of the Merger, the Special Committee and the Board did not consider the historical purchase prices of the Common Stock relating to the issuance and sale of such securities by the Company because the Company did not issue or sell any securities during the past two years in transactions that would be relevant for the Special Committee or the Board’s fairness determination. Neither the Special Committee nor the Board specifically considered the liquidation value or the net book value of Vapotherm in its evaluation of the Merger, because of its belief that neither liquidation value nor net book value presents a meaningful valuation for Vapotherm and its business, as Vapotherm’s value is derived from the cash flows to be generated from its continuing operations rather than from the value of assets that might be realized in a liquidation or from net book value which is significantly influenced by historical costs. In addition, neither the Special Committee nor the Board conducted a separate going-concern valuation of Vapotherm because the financial analyses presented by Scalar, as more fully described below under “Special Factors—Opinion of Scalar, LLC”, contained financial analyses of the cash flows to be generated by Vapotherm’s continuing operations and the Special Committee and Board believed these analyses to be a form of a going concern valuation. In determining the terms and conditions of the Merger Agreement and the transactions contemplated thereby, including the Merger, advisable and fair to, and in the best interests of, the Company and its unaffiliated stockholders, each of the Special Committee and the Board expressly adopts the analysis and conclusions of Scalar in issuing its fairness opinion as part of its considerations in making such determination.

On June 16, 2024, at a meeting of the Special Committee, Scalar rendered its oral opinion to the Special Committee, subsequently confirmed in writing, as to the fairness, from a financial point of view, as of such date, to the holders of Common Stock (for purposes of such opinion and this summary, other than the Excluded Parties) of the Per Share Merger Consideration to be received by the holders of Common Stock (other than the Excluded Parties) in the proposed merger of the Company with Merger Sub pursuant to the Merger Agreement (without giving effect to any impact of the Merger on any particular holder of Common Stock other than in its capacity as a common stockholder), based upon and subject to the procedures followed, assumptions made, qualifications and limitations on the review undertaken, and other matters considered by Scalar in preparing its opinion. For purposes of Scalar’s opinion and this summary, the Per Share Merger Consideration consists of $2.18 per Share in cash.

The full text of Scalar’s written opinion, dated June 16, 2024, which sets forth the procedures followed, assumptions made, matters considered, qualifications and limitations on the review undertaken, and other matters considered by Scalar in connection with the opinion, is attached to this proxy statement as Annex F. The summary of Scalar’s opinion in this proxy statement is qualified in its entirety by reference to the full text of Scalar’s written opinion. Scalar’s opinion was provided for the information and assistance of the Special Committee and does not constitute a recommendation as to how any stockholder of the Company should vote or act with respect to the Merger or any other matter.

In performing its analysis and rendering its opinion, with the Special Committee’s consent, Scalar relied upon and assumed, without assuming liability or responsibility for independent verification, the accuracy and completeness of information that was publicly available or was furnished, or otherwise made available to Scalar or discussed with or reviewed by Scalar. Scalar further relied upon the assurances of the management of the Company that the financial information provided to Scalar by the Company has been prepared on a reasonable basis in accordance with industry practice, and that the Company’s management is not aware of any information or facts that would make any information provided to Scalar inaccurate, incomplete or misleading. Scalar has not been engaged to independently verify, has not assumed any responsibility to verify, assumes no liability for, and expresses no opinion on, any such information, and Scalar has assumed and relied upon, without independent verification, that the Company is not aware of any information that might be material to Scalar’s opinion that has not been provided to Scalar.

Without limiting the generality of the foregoing, for the purpose of its opinion, Scalar assumed with respect to financial forecasts, estimates, and other forward-looking information reviewed by Scalar, that such information had been reasonably prepared based on assumptions reflecting the best currently available estimates and judgments of the management of the Company and as to the expected future results of operations and financial condition of the Company and Scalar has assumed, without independent verification, that such forecasted results will be realized in the amounts and on the time schedule contemplated. Scalar assumed no responsibility for and expressed no opinion as to any such financial forecasts, estimates, or forward-looking information or the assumptions on which they were based. Scalar did not consider any strategic, operating or cost benefits and/or synergies that might result from the Merger. Scalar also assumed, with the Special Committee’s consent and without independent verification, that the Merger will have the tax consequences described in discussions with, and materials furnished to Scalar by, representatives of the Company.

Scalar is not a legal, accounting, regulatory, or tax expert and its opinion does not address any legal, regulatory, taxation, or accounting matters, as to which Scalar understood that the Special Committee obtained such advice as it deemed necessary from qualified professionals, and Scalar assumed the accuracy and veracity of all assessments made by such advisors to the Company with respect to such matters.

In arriving at its opinion, with the Special Committee’s consent and without independent verification, Scalar relied upon and assumed that except as would not be in any way meaningful to Scalar’s analysis: (i) the representations and warranties of all parties to the Merger Agreement, and any related Merger documents, are correct and that such parties will comply with and perform all covenants and agreements required to be complied with or performed by such parties under the Merger Agreement and any related Merger documents, (ii) the Merger will be consummated in accordance with the terms of the Merger Agreement and any related Merger documents, without any waiver or amendment of any term or condition thereof, and (iii) there has been no change in the assets, financial condition, business or prospects of the Company since the date of the most recent financial statements and other information made available to Scalar. Additionally, Scalar assumed that all governmental, regulatory, or other third-party approvals and consents necessary for the consummation of the Merger or otherwise contemplated by the Merger Agreement will be obtained without any adverse effect on the Company, or on the expected benefits of the Merger, in any way meaningful to Scalar’s analysis.

In arriving at its opinion, Scalar did not perform any appraisals or valuations of any specific assets or liabilities (fixed, contingent or other) of the Company, and was not furnished or provided with any such appraisals or valuations, and Scalar did not evaluate the solvency of the Company under any state or federal law relating to bankruptcy, insolvency or similar matters. Without limiting the generality of the foregoing, Scalar did not undertake any independent analysis of any pending or threatened litigation, regulatory action, possible unasserted claims or other contingent liabilities, to which the Company was a party or may be subject, and at the Special Committee’s direction and with the Special Committee’s consent, Scalar’s opinion made no assumption concerning, and therefore did not consider, the possible assertion of claims, outcomes or damages arising out of any such matters.

Scalar’s opinion was necessarily based upon economic, monetary, market, and other conditions as in effect on, the information available to Scalar as of, and the facts and circumstances as they existed on, the date of Scalar’s written opinion and Scalar’s opinion speaks only as of such date; events occurring after that date could materially affect the assumptions used in preparing Scalar’s opinion. Scalar has not undertaken to update, reaffirm, or revise its opinion or otherwise comment upon any events occurring after the date of Scalar’s written opinion, material information provided to Scalar after that date, or any change in facts or circumstances that occurred after that date, and Scalar does not have any obligation to update, revise, or reaffirm its opinion.

The issuance of Scalar’s opinion was approved by an authorized fairness committee of Scalar.

Scalar’s opinion did not address the Company’s underlying business decision to engage in the Merger as compared to other business or investment strategies or transactions that might be available to the Company, or whether the Per Share Merger Consideration to be received by the holders of Shares (other than the Excluded Parties) pursuant to the Merger Agreement represents the best price obtainable. In connection with Scalar’s engagement, Scalar was not requested to, and did not, solicit interest from other parties with respect to an acquisition of, or other business combination with, the Company or any other alternative transaction. Scalar’s opinion addressed only the fairness from a financial point of view, as of the date thereof, to the holders of Shares (other than the Excluded Parties) of the Per Share Merger Consideration to be received by the holders of Shares (other than the Excluded Parties) pursuant to the Merger Agreement. Scalar was not asked to, and did not, offer any opinion as to the terms, other than the Per Share Merger Consideration to the extent expressly specified therein, of the Merger Agreement or any related documents or the form of the Merger or any related transaction (including any agreement or transaction between any Excluded Party and the Company), including the fairness of the Merger to, or any consideration received in connection therewith by, any Excluded Parties, the holders of any class of securities, creditors, or other constituencies of the Company, or any of their respective affiliates. Scalar was not asked to, and did not, offer any opinion with respect to any ongoing obligations of the Company, or any of their respective affiliates (including any obligations with respect to governance, appraisal rights, preemptive rights, registration rights, voting rights, or otherwise) contained in any agreement related to the Merger, or under applicable law, any allocation of the Per Share Merger Consideration (or any portion thereof), or the fair market value of the Company or the Shares. In addition, Scalar expressed no opinion as to the fairness of the amount or nature of any compensation to be received by any officers, directors, or employees of any parties to the Merger, any Excluded Parties, or any class of such persons, whether relative to the Per Share Merger Consideration or otherwise. Scalar expressed no opinion as to the price at which the Shares will trade at any time. Scalar’s opinion should not be construed as creating any fiduciary duty of Scalar (or any of its affiliates) to any party. To the extent any of the foregoing assumptions or any of the facts on which Scalar’s opinion is based prove to be untrue in any material respect, Scalar’s opinion cannot and should not be relied upon.

Scalar’s opinion was provided for the benefit of the Special Committee (in its capacity as such) in connection with, and for the purpose of, its evaluation of the Merger, and does not constitute a recommendation to any stockholder as to how such stockholder should vote or act with respect to the Merger or any other matter.

The following is a summary of the material financial analyses delivered by Scalar to the Special Committee in connection with rendering the opinion described above. The summary set forth below does not purport to set forth the entire description of the financial analyses performed or factors considered by, and underlying the opinion of, Scalar, nor does the order of the financial analyses described represent the relative importance or weight given to those financial analyses by Scalar. Scalar may have deemed various assumptions more or less probable than other assumptions, so the reference ranges resulting from any particular portion of the analyses summarized below should not be taken to be Scalar’s view of the actual value of the Company. Some of the summaries of the financial analyses set forth below include information presented in tabular format. In order to fully understand the financial analyses, the tables must be read together with the text of each summary, as the tables alone do not constitute a complete description of the financial analyses performed by Scalar. Considering the data in the tables below without considering all financial analyses or factors or the full narrative description of such analyses or factors, including the methodologies and assumptions underlying such analyses or factors, could create a misleading or incomplete view of the processes underlying Scalar’s financial analyses and its opinion.

In performing its analyses, Scalar assumed with respect to industry performance, general business and economic conditions and other matters, many of which are beyond the control of the Company, or any other parties to the Merger, that current performance and conditions would prevail. These analyses do not purport to be appraisals or reflect the prices at which businesses or securities may actually be sold. Accordingly, the assumptions and estimates used in, and the results derived from, the financial analyses are inherently subject to substantial uncertainty. Except as otherwise noted, the following quantitative information, to the extent that it is based on market data, is based on market data as it existed on June 13, 2024, and is not necessarily indicative of current market conditions. Note that no discounted cash flow analysis was performed by Scalar given the subjectivity of the Company’s projected free cash flows. This subjectivity is due to a lack of historical profitability, future profitability being significantly dependent upon the success of the launch of a single product that has not been brought to market as of the date of the Opinion, and the lack of a financial forecast beyond December 31, 2026.

Scalar reviewed certain financial data for selected companies with publicly traded equity securities that Scalar deemed relevant for purposes of this analysis based on various factors, including their product offerings within the health care equipment industry and their business models. The financial data reviewed included:

The selected public companies and corresponding financial data included the following:

Note: No company of the selected public companies is directly comparable or identical to the Company

Taking into account the results of the selected public companies analysis, Scalar applied selected multiple ranges of 1.60x to 1.80x LTM Revenue, and 1.45x to 1.65x FY 2024 Revenue to corresponding financial data for the Company of $71.4 million for LTM Revenue and a Company management projected $79.1 million for the FY 2024 Revenue. Scalar selected the multiple range based on the financial performance of the Company, the Company’s historical unprofitability, and Scalar’s observation that the unprofitable selected public companies had LTM Revenue multiples aligned with the bottom quartile of the group. Furthermore, the Company’s future financial success is partially based on the launch of a product that has not been tested in the marketplace. The selected public companies analysis indicated implied total equity value reference ranges for the Company of approximately $3,546,000 to $18,990,00 based on revenue (applying 25% weighting to LTM Revenue and 75% weighting to FY 2024 Revenue). This weighting was based on discussions with Company management and a review of historical and projected growth and consequently FY 2024 revenue was considered a stronger indication of value due to the level of confidence Company management indicated in achieving the 2024 revenue forecast. This range was summarized using the interquartile range of the selected range of multiples represented by: Low (25th Percentile) = $7,407,000, Mid (Median) = $11,268,000, and High (75th Percentile) = $15,129,000. The fully diluted outstanding Shares (excluding shares held in the treasury or owned by the Company) immediately prior to the Effective Time as provided by the management of the Company as of June 3, 2024 is 7,545,082 (the “Current Shares Outstanding”). For clarity, the Current Shares Outstanding includes the shares of Common Stock held by the Rollover Stockholders, shares to be issued upon settlement of all restricted stock units and performance stock units and shares of Common Stock issuable upon exercise of options and warrants. The Low, Mid, and High equity values as determined by the selected public companies analysis, were divided by the Shares to determine a range of values for the Shares of $0.98 up to $2.01 as compared to the value of the Per Share Merger Consideration (as described in the Merger Agreement) of $2.18.

Scalar noted that the Per Share Merger Consideration was above the range referenced above, which in Scalar’s view, supported its assessment of the financial fairness of the Per Share Merger Consideration.

Scalar reviewed certain financial data for selected guideline transactions that Scalar deemed relevant for purposes of this analysis based on various factors, including their product offerings within the health care equipment industry and their business model. The financial data reviewed included:

The selected public companies and corresponding financial data included the following:

Taking the results of the selected guideline transaction premiums analysis, Scalar applied selected premium ranges of 2.9% to 107.5% (which is the minimum observed premium up to three standard deviations from the mean of the selected transaction data) to the 5-day average trading price of the Shares as of June 13, 2024 of $0.76. Based on the interquartile range of the applied premiums, the selected guideline transactions analysis indicated implied per share value reference ranges for the Company of approximately $0.91 to $1.31 as compared to the value of the Per Share Merger Consideration (as described in the Merger Agreement) of $2.18.

Scalar noted that the Per Share Merger Consideration was above the range noted above, which in Scalar’s view supported its assessment of the financial fairness of the Per Share Merger Consideration.

The preparation of a fairness opinion is a complex process and is not necessarily susceptible to partial analysis or summary description. Selecting portions of the analyses or of the summary set forth above, without considering the analyses as a whole, could create an incomplete view of the processes underlying Scalar’s opinion. In arriving at its fairness determination, Scalar considered the results of all of its analyses and did not attribute any particular weight to any factor or analysis considered by it. Rather, Scalar made its determination as to fairness on the basis of its experience and professional judgment after considering the results of all of its analyses. No company or transaction used in the above analyses as a comparison is directly comparable to the Company or the Merger.

Scalar’s financial analyses and opinion were only one of many factors taken into consideration by the Special Committee in its evaluation of the Merger. Consequently, the analyses described above should not be viewed as determinative of the views of the Special Committee with respect to the Per Share Merger Consideration or as to whether the Special Committee would have been willing to determine that different consideration was fair. The consideration for the transaction was approved by the Special Committee. Scalar did not advise the Company or the Special Committee during these transaction negotiations, nor did it recommend any specific amount of consideration to the Company or the Special Committee or that any specific amount of consideration constituted the only appropriate consideration for the Merger. The foregoing summary does not purport to set forth the entire description of the analyses performed by Scalar in connection with the fairness opinion and is qualified in its entirety by reference to the written opinion of Scalar attached hereto as Annex F.

Scalar and its affiliates are engaged in transaction advisory, financial reporting, litigation consulting, tax and other financial and non-financial activities and services for various persons and entities. Scalar was engaged by the Special Committee to render its opinion to the Special Committee and Scalar received a fee of $140,000 from the Company for providing its services and rendering its opinion. No portion of these fees was refundable or contingent upon the consummation of the Merger or the conclusion reached in Scalar’s opinion. The Company has also agreed to indemnify Scalar against certain liabilities and reimburse Scalar for certain expenses in connection with the services rendered. In the past two years, Scalar and its affiliates have not provided any other advisory services to the Company or SLR, but have provided advisory services to Perceptive and certain of its affiliates and portfolio companies for which Scalar and its affiliates received compensation. Specifically, Scalar provided a fairness opinion to the board of directors of Arya Sciences Acquisition Corp. IV (“ARYA”), a special purpose acquisition company that is sponsored by an affiliate of Perceptive, in connection with ARYA entering into a definitive agreement for a business combination with Adagio Medical, Inc. as well as another confidential engagement for Perceptive, for which Scalar received $310,000. Scalar and its affiliates may also seek to provide such services to the Company, Parent, Topco, Perceptive, SLR, and their respective affiliates in the future and expects to receive fees for the rendering of these services. In the ordinary course of business, certain of Scalar’s employees and affiliates, or entities in which they have invested, may hold or trade, for their own accounts and the accounts of their investors, securities of the Company and, accordingly, may at any time hold a long or short position in such securities.

The Special Committee selected Scalar to provide its opinion in connection with the Merger based on Scalar’s reputation and experience. Scalar is a valuation firm that has substantial experience in transactions similar to the Merger.

Except for annual and quarterly guidance issued from time to time, Vapotherm does not, as a matter of course, publicly disclose forecasts or projections as to future performance, earnings or other results due to the inherent uncertainty, unpredictability and subjectivity of the underlying assumptions, estimates and projections. In connection with the Special Committee’s consideration of Vapotherm’s stand-alone prospects and potential strategic transactions available to Vapotherm, at the request of the Special Committee, management of Vapotherm prepared and provided to the Special Committee certain financial forecasts (the “projections”). The Special Committee subsequently directed Scalar to use the projections for purposes of its financial analysis and opinion, as described above under the heading “Special Factors—Opinion of Scalar, LLC.” The summary of the projections is included in this proxy statement solely to give our stockholders access to certain financial projections that were made available to the Special Committee and Scalar. The summary of the projections may not be appropriate for other purposes and is not being included in this proxy statement to influence your decision whether to vote in favor of the Merger Agreement Proposal.

The projections were prepared by our management at the request of the Special Committee for internal use. The projections, and the underlying key assumptions relating to such projections, were not prepared with a view toward public disclosure or with a view toward complying with U.S. generally accepted accounting principles (“GAAP”) (as detailed below), the published guidelines of the SEC regarding projections, the use of non-GAAP financial measures or the guidelines established by the American Institute of Certified Public Accountants with respect to prospective financial information, but, in the view of our management, were prepared on a reasonable basis in connection with the review of strategic alternatives undertaken by the Special Committee, including the Merger, reflected the best available estimates and judgments at the time of preparation and presented as of the time of preparation, to the best of our management’s knowledge and belief, the reasonable projections of the future financial performance of Vapotherm.

Neither our independent auditors, nor any other independent accountants, have compiled, examined, or performed any procedures with respect to the prospective financial information contained herein, nor have they expressed any opinion or any other form of assurance on such information or its achievability, and assume no responsibility for, and disclaim any association with, the prospective financial information.

The projections, while presented with numerical specificity, necessarily were based on numerous variables and assumptions that are inherently uncertain and many of which are beyond the control of our management. Because the projections cover multiple years, by their nature, they also become subject to greater uncertainty with each successive year. A number of important factors with respect to our business and the industry in which Vapotherm participates may affect actual results and result in the projections not being achieved. For a description of some of these factors, we urge you to review Vapotherm’s most recent SEC filings and other risk factors described in our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, as amended, subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K. In addition, the projections may be affected by our inability to achieve strategic goals, objectives and targets over the applicable period. Accordingly, there can be no assurance that the prospective results are indicative of the future performance of Vapotherm or that actual results will not differ materially from those presented in the prospective financial information.

Our management prepared a set of financial projections for fiscal years 2024 through 2026 that forecasted Vapotherm’s business. In developing the projections, our management made numerous assumptions about the industry in which Vapotherm participates, our markets and products and our ability to execute our plans. The key assumptions through the forecast period for the projections include:

The forecasts were prepared on the basis that Vapotherm would remain an independent, standalone public company, and did not contemplate the Merger. We believe the assumptions that our management used as a basis for this projected financial information were reasonable at the time our management prepared these forecasts, given the information our management had at the time.

The inclusion of the projections in this proxy statement should not be regarded as an indication that we or any of our affiliates, advisors, officers, directors or representatives considered or consider the projections to be necessarily predictive of actual future events, and the projections should not be relied upon as such. Neither we nor any of our respective affiliates, advisors, officers, directors or representatives have made or make any representation to any of our stockholders or any other person regarding the ultimate performance of Vapotherm compared to the information contained in the projections or can give any assurance that actual results will not differ materially from the projections, and neither we nor any of them undertake any obligation to update or otherwise revise or reconcile the projections to reflect circumstances existing after the date the projections were generated or to reflect the occurrence of future events even in the event that any or all of the assumptions underlying the projections are shown to be in error. We do not intend to make publicly available any update or other revision to the projections, except as otherwise required by law.

The projections include non-GAAP financial measures, and they were presented because management believed they could be useful indicators of our projected future operating performance. We prepared the projections on a non-GAAP basis. Non-GAAP financial measures should not be considered in isolation from, or as a substitute for, financial information presented in compliance with GAAP, and non-GAAP financial measures as used by us may not be comparable to similarly titled amounts used by other companies.

All financial projections are forward-looking statements. These and other forward-looking statements are expressly qualified in their entirety by the risks and uncertainties identified above and the cautionary statements contained in our Annual Report on Form 10-K for the year ended December 31, 2023, as amended, and our subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K. Please consider carefully the information under “Special Note Regarding Forward-Looking Statements” contained elsewhere in this proxy statement.

In light of the foregoing factors and the uncertainties inherent in the projections, our stockholders are cautioned not to place undue, if any, reliance on the projections.

No provision has been made (i) to grant Vapotherm’s unaffiliated security holders access to the corporate files of Vapotherm, any other party to the Merger or any of their respective affiliates, or (ii) to obtain counsel or appraisal services at the expense of Vapotherm, any other party to the Merger or any of their respective affiliates.

The SLR Filing Persons are making the statements included in this section solely for purposes of complying with the requirements of Rule 13e-3 and related rules and regulations under the Exchange Act. However, the view of the SLR Filing Persons as to the fairness of the Merger should not be construed as a recommendation to any of the Company’s stockholders as to how that stockholder should vote on the Merger Agreement Proposal. The SLR Filing Persons have interests in the Merger that are different from, and in addition to, those of the other stockholders of the Company.

The SLR Filing Persons did not participate in the deliberations of the Special Committee or the Board regarding, nor did they receive advice from the respective legal or other advisors of the Special Committee or the Board as to, the fairness of the Merger. The SLR Filing Persons have not performed, or engaged a financial advisor to perform, any valuation or other analysis for the purposes of assessing the fairness of the Merger to the unaffiliated stockholders. Based on, among other things, the factors considered by, and the analysis and resulting conclusions of, the Board and the Special Committee discussed in “Special Factors—Purpose and Reasons of Vapotherm for the Merger; Recommendation of the Board and Special Committee; Fairness of the Merger” (which analysis and resulting conclusions the SLR Filing Persons adopt), the SLR Filing Persons believe that the Merger is substantively fair to the Company’s unaffiliated security holders (as defined by Rule 13e-3(a)(4) of the Exchange Act). In particular, the SLR Filing Persons considered the following:

The SLR Filing Persons further believe that the Merger is procedurally fair to the Company’s unaffiliated security holders (as defined by Rule 13e-3(a)(4) of the Exchange Act) based upon, among other things, the following factors:

The SLR Filing Persons also considered a variety of risks and other countervailing factors related to the substantive and procedural fairness of the proposed Merger, including:

In the course of evaluating the Merger Agreement and the transactions contemplated thereby, including the Merger, and making the decisions, determinations and recommendations described above (as applicable), the SLR Filing Persons did not consider the liquidation value of the Company because (1) they believe that liquidation sales generally result in proceeds substantially less than sales of going concern; and (2) they consider determining a liquidation value to be impracticable given the significant execution risk involved in any breakup of the Company. For the foregoing reasons, the SLR Filing Persons did not consider liquidation value to be a relevant factor. Further, the SLR Filing Persons did not consider the Company’s net book value, which is an accounting concept, as a factor because they believe (1) that net book value is not a material indicator of the value of the Company as a going concern but rather is indicative of historical costs and (2) net book value does not take into account the prospects of the Company’s, market conditions, trends in the industry in which the Company operates or the business risks inherent in the industry. In the course of evaluating the Merger Agreement, the SLR Filing Persons did not consider the historical purchase prices of the Common Stock issued and sold by the Company during the past two years because the Company did not issue or sell any securities during the past two years in transactions that would be relevant for the SLR Filing Persons’ fairness determination. Finally, the SLR Filing Persons did not establish, and did not consider, a going concern value for the Company as a public company to determine the fairness of the Merger Consideration to unaffiliated security holders because, following the Merger, the Company will have a significantly different capital structure.

Other than as described in this proxy statement, the SLR Filing Persons are not aware of any firm offers by any unaffiliated person during the past two years for (1) the merger or consolidation of the Company with or into another company, or vice versa; (2) the sale or transfer of all or any substantial part of the assets of the Company; or (3) a purchase of the Company’s securities that would enable the holder to exercise control of the Company.

The foregoing discussion of the information and factors considered and given weight by the SLR Filing Persons in connection with the fairness of the Merger is not intended to be exhaustive but is believed to include all material factors considered by them. The SLR Filing Persons did not find it practicable to, and did not, quantify or otherwise attach relative weights to the foregoing factors in reaching their conclusion as to the fairness of the Merger. Rather, the SLR Filing Persons reached their position as to the fairness of the Merger after considering all of the foregoing as a whole. The SLR Filing Persons believe these factors provide a reasonable basis upon which to form their position regarding the fairness of the Merger to the Company’s stockholders. This position should not, however, be construed as a recommendation to any Company stockholder to approve the Merger Agreement. The SLR Filing Persons make no recommendation as to how stockholders of the Company should vote their Shares relating to the Merger. The SLR Filing Persons attempted to negotiate the terms of a transaction that would be most favorable to them, and not to the stockholders of the Company, and, accordingly, did not negotiate the Merger Agreement with a goal of obtaining terms that were fair to such stockholders. None of the SLR Filing Persons believes that it has or had any fiduciary duty to the Company or its stockholders, including with respect to the Merger and its terms.

Based on the SLR Filing Persons’ knowledge and analysis of available information regarding the Company, the Special Committee and the Board, as well as discussions with members of the Company’s senior management regarding the Company and its business and the factors considered by, and findings of, the Special Committee and the Board and discussed under “Special Factors— Purpose and Reasons of Vapotherm for the Merger; Recommendation of the Board and Special Committee; Fairness of the Merger,” the SLR Filing Persons believe that the Merger is fair to the Company’s unaffiliated security holders (as defined by Rule 13e-3(a)(4) of the Exchange Act).

The requirements of Rule 13e-3 of the Exchange Act apply to the Merger because the SLR Filing Persons are deemed to be engaged in a “going private” transaction under Rule 13e-3 of the Exchange Act. The SLR Filing Persons are making the statements included in this section solely for the purpose of complying with the requirements of Rule 13e-3 and related rules under the Exchange Act.

For the SLR Filing Persons, the primary purpose of the Merger is for the Company to raise additional equity capital from Perceptive, become a private company and thereby reduce the Company’s operating costs and resolve its liquidity issues, and in conjunction therewith, to allow the Company to optimize its capitalization structure by having the SLR Entities contribute a portion of their indebtedness and related accrued interest and fees and the SLR Warrants to Topco in exchange for preferred equity and common equity of Topco, in each case, pursuant to the SLR Financing Agreements, and for the SLR Entities to become the majority indirect owner of the Company. The SLR Filing Persons agree with the analyses, determinations and conclusions described under “Special Factors— Purpose and Reasons of Vapotherm for the Merger; Recommendation of the Board and Special Committee; Fairness of the Merger,” and concluded that a take-private transaction that would provide fair value to all of the Company’s stockholders was in the best interest of the Company’s stockholders. A portion of the proceeds of the equity investment by Perceptive will be used to fund the purchase price of the Shares in the Merger. Representatives of Perceptive indicated that Perceptive was unwilling to proceed with the proposed transaction without a significant reduction in the Company’s indebtedness. As a result, the SLR Entities agreed to enter into the SLR Financing Agreements because they believed that the overall benefits of the Merger outweighed the detriments to them associated with the SLR Financing Agreements. The primary detriments of the Merger to the SLR Entities include a reduction of the value of their secured claim in the event of a bankruptcy proceeding following the Merger and the lack of liquidity for the Common Stock following the Merger. In determining to enter into the SLR Financing Agreements, the SLR Filing Persons also considered the confidence they had in the prospects of the Company and the benefits of the equity investment by Perceptive.

The SLR Filing Persons believe that it is in the best interests of the Company’s stockholders to effect the Merger now given the risks, and uncertainties associated with the Company’s stand-alone strategy, including the substantial doubt regarding the Company’s ability to continue as a going concern and the potential impact of such risks and uncertainties of potential financing transactions on the trading price of the Common Stock. The SLR Filing Persons also believe it is in the best interests of the Company to operate as a privately held entity. The SLR Filing Persons believe that, as a privately held entity, the Company will have greater operational flexibility to pursue its strategic objectives than it would have as a public company, and that management of the Company will be able to concentrate on long-term growth, without the focus on the quarter-to-quarter performance often emphasized by the public equity market’s valuation of the Shares. Although the SLR Filing Persons believe that there may be substantial opportunities associated with the SLR Entities’ equity ownership in Topco following the Closing, the SLR Filing Persons recognize that there may also be substantial risks (including the risks and uncertainties relating to the prospects of the Company) and that such opportunities may not ever be fully realized.

The SLR Filing Persons believe that structuring the transaction in this manner is preferable to other transaction structures because it (i) will enable the Company to obtain additional equity financing from Perceptive, (ii) will enable the Company to optimize its capitalization structure and resolve the Company’s liquidity issues without incurring excessive costs and expenses, (iii) will allow the Company to cease to be a publicly registered and reporting company, and (iv) represents an opportunity for the Company’s stockholders (other than the holders of Excluded Shares) to receive the Per Share Merger Consideration, in accordance with the terms of, and subject to the conditions in, the Merger Agreement. The SLR Filing Persons, together with the Company, initially considered a number of alternatives to optimize the Company’s capitalization structure and resolve the Company’s liquidity issues, including through a prepackaged bankruptcy or converting a portion of its term loan to an alternative debt security. However, the SLR Filing Persons, together with the Company, decided that a take-private transaction, combined with a debt rollover and new equity investment, is the most direct, efficient and effective way to address the Company’s liquidity issues, to provide relative assurance that the Company’s stockholders will receive value for their Shares as compared to alternative structures, and to allow the SLR Entities to realize potential long-term value from their investment in the Company.

Following completion of the Merger, Merger Sub will have been merged with and into Vapotherm, with Vapotherm surviving the Merger as a direct, wholly owned subsidiary of Parent and as an indirect, wholly owned subsidiary of Topco. The Shares are currently traded on the OTCQX and registered under the Exchange Act. Following completion of the Merger, there will be no further market for the Shares and, as promptly as practicable following the Effective Time and in compliance with applicable law, Vapotherm’s Common Stock will be deregistered under the Exchange Act and Vapotherm will no longer be subject to the Exchange Act. As a result of such deregistration, Vapotherm will no longer incur related direct and indirect costs and expenses, and may experience positive effects on profitability as a result of the elimination of such costs and expenses.

From and after the Effective Time, the officers of Vapotherm immediately prior to the Effective Time will be the officers of the Surviving Corporation and the directors of Merger Sub immediately prior to the Effective Time will be the directors of the Surviving Corporation, in each case to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their death, resignation or removal or until their respective successors are duly elected and qualified in accordance with the certificate of incorporation and bylaws of the Surviving Corporation, as the case may be. Joseph Army currently serves as President and Chief Executive Officer of Vapotherm and it is anticipated that Mr. Army will be a director of the Surviving Corporation.

Parent currently anticipates that Vapotherm’s operations following completion of the Merger will initially be conducted substantially as they are currently being conducted (except that Vapotherm will cease to be a public company and will instead be a direct, wholly owned subsidiary of Parent and indirect, wholly owned subsidiary of Topco). Parent has advised Vapotherm that, except as set forth in this proxy statement and except for the transactions already under consideration by Vapotherm, Topco, Parent, Perceptive and the SLR Filing Persons do not have any current plans, proposals or negotiations that relate to or would result in an extraordinary corporate transaction involving Vapotherm’s corporate structure, business, or management, such as a merger, reorganization, liquidation, relocation of any material operations, or sale or transfer of a material amount of Vapotherm’s assets. However, subsequent to the consummation of the Merger, the Surviving Corporation’s management and board of directors will continuously evaluate and review the Surviving Corporation’s entire business and operations from time to time, and may propose or develop plans and proposals, including (i) any of the foregoing actions and any actions to address the challenges referred to in “—Purpose and Reasons of Vapotherm for the Merger; Recommendation of the Board and Special Committee; Fairness of the Merger” above, and (ii) the disposition or acquisition of material assets or other extraordinary transactions, in each case, which they consider to be in the best interests of the Surviving Corporation and its stockholders. Topco, Parent, Perceptive and the SLR Filing Persons expressly reserve the right to make any changes they deem appropriate to the operation of the Surviving Corporation in light of such evaluation and review as well as any future developments.

If the Merger Agreement Proposal is approved and the Merger is consummated, Merger Sub will merge with and into Vapotherm, with Vapotherm surviving the Merger as a wholly owned subsidiary of Parent.

As a result of the Merger, our Common Stock will no longer be publicly traded, and will no longer trade on the OTCQX. In addition, our Common Stock will be deregistered under the Exchange Act, and we will no longer file periodic reports with the SEC with respect to our Common Stock. If the Merger is completed, you will not own any shares of the capital stock of the Surviving Corporation.

At the Effective Time, each Share outstanding immediately prior to the Effective Time (other than the Excluded Shares) will be cancelled and retired and converted into the right to receive the Per Share Merger Consideration, in accordance with and subject to the terms and conditions set forth in the Merger Agreement, whereupon the holders of such Shares will cease to have any rights with respect thereto, other than the right to receive the Per Share Merger Consideration, subject to and in accordance with the terms and conditions of the Merger Agreement.

In connection with and concurrently with the Company’s entry into the Merger Agreement, Vapotherm entered into the Stockholder Rollover Agreements with Topco and the Rollover Stockholders, pursuant to which each Rollover Stockholder agreed to, among other things, contribute, transfer and assign to Topco all of the Rollover Shares held directly by such Rollover Stockholder, in exchange for Topco Common Units at a price per Topco Common Unit equal to the Per Share Merger Consideration, in each case on the Closing Date but immediately prior to the Effective Time and subject to the terms and conditions of the applicable Stockholder Rollover Agreement. The Rollover Shares will then be contributed by Topco to Parent immediately prior to the Effective Time and then in connection with the Merger cancelled and retired without any conversion thereof and will cease to exist and no payment or distribution will be made with respect thereto.

In connection with Vapotherm’s entry into the Merger Agreement, Topco and Parent entered into the SLR Rollover Agreement with certain of the SLR Filing Persons (the “SLR Rollover Stockholders”), pursuant to which, immediately prior to the Effective Time and pursuant to the terms and subject to the conditions of the SLR Rollover Agreement, the SLR Rollover Stockholders will contribute the SLR Warrants and certain of SLR’s loans and accrued but unpaid interest and fees under the SLR Loan Agreement (the “Contributed SLR Loan Receivables”) to Topco in exchange for Topco Series A Preferred Units and Topco Common Units, and subsequent to the consummation of the Merger and certain other transactions, the SLR Warrants and Contributed SLR Loan Receivables will thereafter be contributed by Topco to Parent, and immediately upon receipt by Parent thereof, the SLR Warrants and Contributed SLR Loan Receivables will thereafter be contributed by Parent to the Surviving Corporation. Each such SLR Warrant and the Contributed SLR Loan Receivables, as a result of the consummation of the transactions contemplated by the SLR Rollover Agreement, will be cancelled and retired, and in the case of SLR Warrants without any conversion thereof, and will cease to exist, and no payment or distribution will be made with respect thereto. After completion of the Merger, the SLR Entities will retain $40.0 million of Vapotherm term debt.

Benefits of the Merger for Vapotherm’s Unaffiliated Security Holders

The primary benefit of the Merger to Vapotherm’s unaffiliated security holders will be their right to receive the Per Share Merger Consideration, which represents a premium of approximately 166% over the closing price per Share on June 14, 2024, the last full trading day before the execution of the Merger Agreement. The Per Share Merger Consideration provides Vapotherm’s unaffiliated security holders certainty, immediate value and liquidity, particularly in light of Vapotherm’s substantial debt burden and substantial doubt over its ability to continue as a going concern.

Additionally, the unaffiliated stockholders of Vapotherm will avoid the risk of any possible decrease in Vapotherm’s future earnings, growth or value.

Detriments of the Merger for Vapotherm’s Unaffiliated Security Holders

The primary detriments of the Merger to Vapotherm’s unaffiliated security holders include, without limitation, the following:

None of Parent, Topco, Merger Sub or Perceptive currently own any ownership or other interest in Vapotherm.

While the SLR Entities do not own any Shares, they own the SLR Warrants and hold $111.8 million principal amount of term loans under the Term A Loan Facility and $2.0 million principal amount of term loans under the Term B Loan Facility as of March 31, 2024. The SLR Entities have served as Vapotherm’s primary lender since February 2022 and since then have engaged in ongoing discussions with members of management to ensure adequate liquidity for the Company. Michael S. Gross and Bruce Spohler do not, in their individual capacities, own any Shares.

After the Merger, Parent will own 100% of the Surviving Corporation’s outstanding capital stock. Because Parent is wholly owned by Topco, after the Merger, all of the equity interests in Vapotherm will be beneficially owned by Topco and its equity investors. The equity investors in Topco will consist primarily of certain of the SLR Entities, Perceptive and the Rollover Stockholders. If the Merger is completed, Topco and its equity investors following the Closing will be the sole beneficiaries of our future earnings and growth, if any. While Messrs. Gross and Spohler control the SLR Entities by virtue of their positions as managing members of the SLR Capital Partners, LLC, they will not own, in their individual capacities, any equity interests in Topco.

Vapotherm’s net book value (referred to as stockholders’ deficit) as of March 31, 2024 and December 31, 2023 was $(68.5) million and $(55.3) million, respectively, and Vapotherm’s net loss for the three months ended March 31, 2024 and the year ended December 31, 2023 was $(14.8) million and $(58.2) million, respectively. If the Merger is completed, Vapotherm’s unaffiliated stockholders will have no interest in the Surviving Corporation’s net book value or net earnings. Since Parent will own 100% of the outstanding capital stock of the Surviving Corporation, Parent will have a 100% interest in the Surviving Corporation’s net book value or net earnings. Immediately after the Closing, each of the equity investors in Topco will have an interest in Vapotherm’s net book value and net earnings in proportion to such equity owner’s ownership interest in Topco. After the Merger, the SLR Entities will control approximately 61.8% of the voting and economic interest in Topco. Accordingly, after the Merger, based on Vapotherm’s historical net book value of $(55.3) million as of December 31, 2023 and its net loss of $(58.2) million for the year ended December 31, 2023, the SLR Entities’ interest in Vapotherm’s net book value as of December 31, 2023 was approximately $34.2 million, and the SLR Entities’ interest in Vapotherm’s net loss for the year ended December 31, 2023, was approximately $36.0 million. Messrs. Gross and Spohler will not, in their individual capacities, have an interest in Vapotherm's net book value or net loss after the Merger.

If the Merger Agreement Proposal is not approved by our stockholders, or if the Merger is not completed for any other reason:

In considering the recommendations of the Special Committee and the Board with respect to the Merger, our stockholders should be aware that our executive officers and directors have certain interests in the Merger that may be different from, or in addition to, the interests of our stockholders generally. The Special Committee, consisting entirely of independent directors, and the Board, were aware of these interests and considered them, among other matters, in evaluating the Merger Agreement and the transactions contemplated thereby, including the Merger, and in making their recommendations. These interests are described below.

To the extent that any executive officer or director holds Shares and is not a Rollover Stockholder, such executive officer or director will receive the Per Share Merger Consideration in respect of each of their Shares in the same manner as all of our other stockholders if the Merger is completed. The table below reflects, as of June 30, 2024, the Shares for which each executive officer and director will receive the Per Share Merger Consideration.

In connection with and concurrently with the execution of the Merger Agreement, Vapotherm entered into Stockholder Rollover Agreements with Topco and the Rollover Stockholders, pursuant to which each Rollover Stockholder agreed to, among other things, contribute, transfer and assign to Topco all Rollover Shares held directly by such Rollover Stockholder, in exchange for Topco Common Units at a price per Topco Common Unit equal to the Per Share Merger Consideration, in each case on the Closing Date but immediately prior to the Effective Time and subject to the terms and conditions of the applicable Stockholder Rollover Agreement. The Rollover Shares will then be contributed by Topco to Parent immediately prior to the Effective Time and in connection with the Merger cancelled and retired without any conversion thereof and will cease to exist and no payment or distribution will be made with respect thereto.

The table below reflects, as of June 30, 2024, the Rollover Shares for which each executive officer and director who is a Rollover Stockholder will receive Topco Common Units in exchange for Rollover Shares. See “Special Factors—Stockholder Rollover Agreements” for additional details.

Under the terms of the Vapotherm, Inc. Amended and Restated 2018 Equity Incentive Plan, if equity awards are not continued, assumed or substituted with like awards by the successor, then: (i) all outstanding Stock Options held by a participant will become immediately vested and exercisable in full; (ii) all restrictions imposed on RSU Awards that are not performance-based held by a participant will lapse; and (iii) all PSU Awards held by a participant for which the performance period has been completed as of the date of the change in control but have not yet been paid will vest and be paid in cash or shares and at such time as provided in the award agreement based on actual attainment of each performance goal, and all PSU Awards held by a participant for which the performance period has not been completed as of the date of the change in control will with respect to each performance goal vest and be paid out for the entire performance period (and not pro rata) based on actual performance achieved through the date of the change in control with the manner of payment to be made in cash or shares as provided in the award agreement within 30 days following the change in control.

To the extent that any executive officer or director holds Vapotherm equity awards and has not entered into a Subscription Agreement with Topco, the Vapotherm equity awards held by such executive officer or director will be treated in accordance with the Merger Agreement and in the same manner as all of our other holders of Vapotherm equity awards if the Merger is completed. For our executive officers and directors, their Vapotherm equity compensation awards will be treated as follows, assuming they have not entered into a Subscription Agreement with Topco:

The table below reflects, as of June 30, 2024, the awards held by each executive officer and director who has not entered into a Subscription Agreement with Topco.

The table below reflects, as of June 30, 2024, the awards held by each executive officer and director who has subscribed for equity in Topco in the form of Topco Common Units in lieu of the consideration they otherwise would have received upon cancellation of their Stock Options, RSU Awards and PSU Awards in connection with the Merger.

For additional details regarding the treatment of Stock Options, RSU Awards and PSU Awards, see the information under “Special Factors—Certain Effects of the Merger—Treatment of Equity Compensation Awards” and “The Merger Agreement—Principal Terms of the Merger—Treatment of Vapotherm Equity Awards and Employee Stock Purchase Plan.”

We have entered into a separation pay agreement with each of our executive officers, which agreement provides for certain severance and other separation benefits that may become payable in connection with a termination of employment without “cause” or a resignation for “good reason” (in each case, as defined in the separation pay agreements) (in each case, a “Qualifying Termination”).

The severance to be paid under the separation pay agreements upon a Qualifying Termination will equal the sum of (i) the executive officer’s then current annual base salary (or “notional” base salary, in the case of Messrs. Landry and Lawrence, which is their base salary assuming a 7% merit increase for 2023 which was paid in equity in lieu of cash), plus (ii) an amount equal to the executive officer’s then current annual target bonus, except that Mr. Army’s severance payment will equal 1.25 times such sum. The severance will be paid one-half after the executive officer’s execution of a release and the remaining in six instalments, but no later than March 15 of the following year. If the Qualifying Termination occurs in connection with or during the two-year period following a “change in control” of Vapotherm, as defined in the agreement, then the severance payment will be paid in lump sum and equal 1.5 times the amount of the severance payment as described above (2.0 times in the case of Mr. Army).

In addition to a severance payment, the executive officer also will be entitled to receive the following severance benefits upon a Qualifying Termination:

The executive officer must enter into a release of all claims within 45 days after the termination date before any severance payments or benefits will be made under such executive officer’s separation pay agreement.

In connection with our entry into the Merger Agreement, Mr. Army entered into a side letter, dated as of June 17, 2024 (the “Side Letter”), pursuant to which, among other things, he agreed to waive his enhanced severance under the terms of his separation pay agreement with us in connection with the consummation of the Merger.

In connection with his separation from Vapotherm effective on October 31, 2023, Mr. Ramade entered into a transactional memorandum of understanding, which was previously disclosed by Vapotherm. Mr. Ramade will not receive any additional compensation in connection with the Merger.

For the one-year period beginning at the effective time of the Merger, Parent has agreed to provide each employee of Vapotherm or any subsidiary of Vapotherm who remains employed following the effective time of the Merger (including each of Vapotherm’s executive officers who remains employed following the effective time of the Merger) with (i) a base salary and target annual cash bonus opportunities (excluding equity-based compensation and, with respect to the 2025 performance year, specific performance goals), except as otherwise agreed between an employee and Parent or its affiliates, that are no less than the base salary or target annual cash bonus opportunities provided to such employee immediately prior to the effective time of the Merger, (ii) employee benefits (excluding equity, equity-based, deferred compensation, severance, change in control, retention or transaction-related benefits, specific performance goals for any cash incentive compensation for the 2025 performance year, defined benefit pension and post-retirement welfare arrangements) that are substantially comparable in the aggregate to the employee benefits provided to such employees immediately prior to the effective time of the Merger and (iii) severance benefits that are at least as favorable as those provided pre-closing.

Prior to or following the closing of the Merger, certain executive officers of Vapotherm may discuss or enter into agreements with Parent or any of its affiliates regarding employment with, or the right to purchase or participate in the equity of, Parent or one or more of its affiliates. As of the date of this proxy statement, no new employment or compensation arrangements between such persons and Parent or the Surviving Corporation for post-closing periods have been discussed, negotiated or established.

Each of our executive officers and directors is entitled to continued indemnification and insurance coverage from the surviving corporation under the terms of the Merger Agreement for a period of six (6) years following the Closing.

The following table sets forth the information required by Item 402(t) of Regulation S-K regarding certain compensation for each of our named executive officers that is based on, or that otherwise relates to, the Merger. This compensation is referred to as “golden parachute” compensation by the applicable SEC disclosure rules, and in this section such term is used to describe the Merger-related compensation payable to our named executive officers. Our “named executive officers” for purposes of the disclosure in this proxy statement are Joseph Army, John Landry, Brian Lawrence and Gregory Ramade.

The amounts in the table are estimated using the following assumptions and such additional assumptions as may be set forth in the footnotes to the table:

The amounts reported below are estimates based on these and other assumptions that may or may not actually occur or be accurate on the relevant date. Accordingly, the ultimate values to be received by a named executive officer in connection with the Merger may differ from the amounts set forth below. Our named executive officers will not receive pension, non-qualified deferred compensation or tax reimbursements in connection with the Merger. As required by applicable SEC rules, all amounts below that are determined using the per share value of Common Stock has been calculated using the Per Share Merger Consideration of $2.18 per share.

The members of the Special Committee did not receive additional compensation in consideration for evaluating the proposed Merger.

Intent of the Directors and Executive Officers to Vote in Favor of the Merger

Our directors and executive officers have informed us that, as of the date of this proxy statement and to the extent that they own Shares as of the Record Date, they intend to vote all of the Shares owned directly by them in favor of the Merger Agreement Proposal and each of the other proposals listed in this proxy statement. As of the Record Date, our directors and executive officers directly owned, in the aggregate, 957,141 Shares entitled to vote at the Special Meeting, or collectively approximately 15.4% of the total voting power for Shares entitled to vote at the Special Meeting. Of these Shares, 506,787 Shares, or approximately 8.2% of our outstanding Common Stock, are Rollover Shares, and 450,354 Shares, or approximately 7.2% of our outstanding Common Stock, are not Rollover Shares. In the aggregate, 506,787 Shares held by our directors and executive officers that are entitled to be voted at the Special Meeting, or approximately 8.2% of our outstanding Common Stock, are subject to commitments to vote in favor of the Merger Agreement Proposal and each of the other proposals listed in this proxy statement.

Intent of the Rollover Stockholders and Certain Other Stockholders to Vote in Favor of the Merger

Certain stockholders, holding Rollover Shares equal to, in the aggregate, 8.6% of our outstanding Shares, entered into Stockholder Rollover Agreements pursuant to which each such stockholder agreed, among other things, to vote all of the Rollover Shares held by such stockholder (a) in favor of the adoption and approval of the Merger Agreement and the Merger, (b) against any action, proposal, agreement or transaction that would reasonably be expected to change in any manner the voting rights of any class of shares of the Company or materially impede, interfere with, delay, postpone, frustrate, discourage or adversely affect the timely consummation of the Merger and the other transactions contemplated by the Merger Agreement, (c) against any action, proposal, transaction or agreement that would result in (i) a breach of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of such stockholder contained in such Stockholder Rollover Agreement, or (ii) any of the conditions to the consummation of the Merger set forth in the Merger Agreement not being fulfilled, and (d) in favor of any adjournment, recess, delay or postponement of the meeting of stockholders of the Company called to vote to adopt and approve the Merger Agreement and the Merger as may be reasonably requested by the Board or the Special Committee in order to seek or obtain approval of the adoption of the Merger Agreement or any action, proposal, transaction or agreement necessary to consummate the Merger. In addition, the following stockholders, holding an aggregate of 24.6% of our outstanding Shares, entered into Voting and Support Agreements pursuant to which, and upon the terms and subject to the conditions thereof, among other things, each such stockholder agreed to vote all of the shares of Company Common Stock beneficially owned by such stockholder (A) in favor of the adoption and approval of the Merger Agreement and the Merger, (B) against any action, proposal, agreement or transaction that would reasonably be expected to change in any manner the voting rights of any class of shares of the Company or materially impede, interfere with, delay, postpone, frustrate, discourage or adversely affect the timely consummation of the Merger and the other transactions contemplated by the Merger Agreement, (C) against any action, proposal, transaction or agreement that would result in (1) a breach of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of such stockholder contained in such Voting and Support Agreement, or (2) any of the conditions to the consummation of the Merger set forth in the Merger Agreement not being fulfilled, and (D) in favor of any adjournment, recess, delay or postponement of the meeting of stockholders of the Company called to vote to adopt and approve the Merger Agreement and the Merger as may be reasonably requested by the Board or the Special Committee in order to seek or obtain approval of the adoption of the Merger Agreement or any action, proposal, transaction or agreement necessary to consummate the Merger: Crow’s Nest Holdings LP, Kent Lake Capital LLC, Guines LLC and certain entities associated therewith, including Roystone Capital Management LP and Roystone Capital Holdings, LLC, and The Irrevocable Larson Family Investment Trust. Collectively, these stockholders subject to voting commitments in either a Stockholder Rollover Agreement or a Voting and Support Agreement hold an aggregate of 33.2% of our outstanding Shares. See “Special Factors—Stockholder Rollover Agreements” and “Special Factors—Voting and Support Agreements.”

Material U.S. Federal Income Tax Consequences of the Rollover Exchange and the Merger

The following discussion is a summary of certain material U.S. federal income tax consequences of (i) the Rollover Exchange that may be relevant to Rolling Stockholders, whose shares are exchanged for Topco Common Units pursuant to the Rollover Exchange and (ii) the Merger that may be relevant to Non-Rolling Stockholders, whose Shares (other than Excluded Shares) will be converted into the right to receive the Per Share Merger Consideration pursuant to the Merger. This discussion is limited to stockholders who hold their Shares as “capital assets” within the meaning of Section 1221 of the Code (generally, property held for investment purposes). This discussion is based upon the Code, Treasury Regulations promulgated under the Code, rulings and other published positions of the Internal Revenue Service (the “IRS”), and judicial decisions, all as in effect on the date of this proxy statement and all of which are subject to change or differing interpretations at any time, possibly with retroactive effect. Any such change or differing interpretation could affect the accuracy of the statements and conclusions set forth in this discussion. No assurance can be given that the IRS would not assert, or that a court would not sustain, a position contrary to any of the tax considerations described in this discussion. No advance ruling has been or will be sought from the IRS regarding any matter discussed below.

This discussion is for general information purposes only and does not purport to be a complete analysis of all of the U.S. federal income tax considerations that may be relevant to particular holders in light of their particular facts and circumstances, or to stockholders subject to special rules under U.S. federal income tax laws, including, for example, but not limited to:

This discussion does not address any U.S. federal tax considerations other than those pertaining to the income tax (such as estate, gift or other non-income tax considerations) or any state, local or foreign income or non-income tax considerations. In addition, this discussion does not address any considerations arising under the Medicare contribution tax.

If a partnership (including an entity or arrangement treated as a partnership for U.S. federal income tax purposes) is a beneficial owner of Shares, the U.S. federal income tax consequences of the Rollover Exchange or the Merger, as applicable, to a partner in such partnership will generally depend upon the status of the partner, the activities of the partner and the partnership, and certain determinations made at the partner level. Partnerships holding Shares and partners therein are urged to consult their tax advisors regarding the consequences to them of the Merger.

THE U.S. FEDERAL INCOME TAX TREATMENT OF THE TRANSACTIONS DISCUSSED HEREIN TO ANY PARTICULAR STOCKHOLDER WILL DEPEND ON SUCH STOCKHOLDER’S PARTICULAR TAX CIRCUMSTANCES. WE URGE YOU TO CONSULT YOUR TAX ADVISOR WITH RESPECT TO THE SPECIFIC TAX CONSEQUENCES TO YOU IN CONNECTION WITH THE MERGER IN LIGHT OF YOUR OWN PARTICULAR CIRCUMSTANCES, INCLUDING U.S. FEDERAL, STATE, LOCAL AND NON-U.S. INCOME AND OTHER TAX CONSEQUENCES.

The Rollover Exchange is intended to qualify as a tax-deferred exchange of the Rolling Stockholders’ Rolling Shares for the Topco Common Units within the meaning of Section 351 of the Code. In such case, neither the Company nor the Rolling Stockholders will recognize any gain or loss as a result of the Rollover Exchange.

A Rolling Stockholder’s aggregate adjusted tax basis in the Topco Common Units received pursuant to the Rollover Exchange should equal the aggregate adjusted tax basis of the Rolling Shares exchanged therefor and a Rolling Stockholder’s holding period in the Topco Common Units received pursuant to the Rollover Exchange should include the holding period in the Rolling Shares exchanged therefor.

After the Rollover Exchange, the U.S. federal income tax consequences of holding the Topco Common Units are generally similar to holding the Rolling Shares.

This section applies to Non-Rolling Stockholders who are “U.S. Holders.” For purposes of this discussion, a “U.S. Holder” means a beneficial owner of Shares that is for U.S. federal income tax purposes:

The receipt of cash by a Non-Rolling Stockholders who is a U.S. Holder in exchange for Shares pursuant to the Merger will be a taxable transaction for U.S. federal income tax purposes. In general, a U.S. Holder will recognize gain or loss in an amount equal to the difference, if any, between the amount of cash received and the U.S. Holder’s adjusted tax basis in the Shares surrendered pursuant to the Merger. A U.S. Holder’s adjusted tax basis of such Shares generally will equal the amount that such U.S. Holder paid for such Shares. A U.S. Holder’s gain or loss on the disposition of Shares generally will be characterized as capital gain or loss. Any such gain or loss will be long-term capital gain or loss if such U.S. Holder’s holding period in such Shares is more than one year at the time of the completion of the Merger. A preferential tax rate on capital gain generally will apply to long-term capital gain of a non-corporate U.S. Holder (including individuals). The deductibility of capital losses is subject to limitations. U.S. Holders who hold different blocks of Shares (Shares purchased or acquired on different dates or at different prices) should consult their tax advisor to determine how the above rules apply to them.

This section applies to Non-Rolling Stockholders who are “Non-U.S. Holders.” For purposes of this discussion, a “Non-U.S. Holder” means a beneficial owner of Shares that is neither a U.S. Holder nor an entity or arrangement classified as a partnership for U.S. federal income tax purposes.

Subject to the discussion of backup withholding and FATCA below, a Non-Rolling Stockholder who is a Non-U.S. Holder generally will not be subject to U.S. federal income or withholding tax in respect of gain recognized in connection with the Merger, unless:

Generally, information reporting requirements may apply in connection with payments made to Non-Rolling Stockholders, both U.S. Holders or Non-U.S. Holders, in connection with the Merger.

Backup withholding of U.S. federal income tax (currently, at a rate of 24%) generally will apply to the proceeds received by such U.S. Holder pursuant to the Merger, unless the U.S. Holder provides the applicable withholding agent with a properly completed and executed IRS Form W-9 providing such U.S. Holder’s correct taxpayer identification number and certifying that such holder is not subject to backup withholding, or otherwise establishes an exemption, and otherwise complies with the backup withholding rules. Backup withholding may also apply to the proceeds received by a Non-U.S. Holder pursuant to the Merger, unless the Non-U.S. Holder provides the applicable withholding agent with a properly completed and executed IRS Form W-8BEN or IRS Form W-8BEN-E (or other applicable IRS Form W-8), attesting to such Non-U.S. Holder’s status as a non-U.S. person and otherwise complies with applicable certification requirements.

Backup withholding is not an additional tax. The amount of any backup withholding from a payment to a U.S. Holder or Non-U.S. Holder generally will be allowed as a credit against such holder’s U.S. federal income tax liability, if any, and may entitle such holder to a refund, provided that the required information is timely furnished to the IRS.

Additional Withholding Requirements under the Foreign Account Tax Compliance Act (FATCA)

Sections 1471 through 1474 of the Code, and the U.S. Treasury Regulations and administrative guidance issued thereunder (which we refer to as, collectively, “FATCA”), impose a U.S. federal withholding tax of 30 percent on certain payments made to a “foreign financial institution” (as specially defined under these rules) unless such institution enters into an agreement with the U.S. government to withhold on certain payments and to collect and provide to the U.S. tax authorities substantial information regarding certain U.S. account holders of such institution (which include certain equity and debt holders of such institution, as well as certain account holders that are foreign entities with U.S. owners) or an exemption applies. FATCA also generally imposes a U.S. federal withholding tax of 30 percent on certain payments made to a non-financial foreign entity unless such entity provides the withholding agent a certification identifying certain direct and indirect U.S. owners of the entity or an exemption applies. An intergovernmental agreement between the United States and an applicable foreign country may modify these requirements. Under certain circumstances, a Non-U.S. Holder might be eligible for refunds or credits of such taxes.

The U.S. Treasury Department has released proposed regulations which, if finalized in their present form, would eliminate the FATCA withholding applicable to the gross proceeds of a sale or other disposition Shares. In its preamble to such proposed regulations, the U.S. Treasury Department stated that taxpayers generally may rely on the proposed regulations until final regulations are issued.

Stockholders are urged to consult with their tax advisors regarding the possible implications of FATCA on the disposition of their Shares pursuant to the Rollover Exchange or the Merger, as applicable.

THE DISCUSSION ABOVE IS BASED ON CURRENT LAW. LEGISLATIVE, ADMINISTRATIVE OR JUDICIAL CHANGES OR INTERPRETATIONS, WHICH CAN APPLY RETROACTIVELY, COULD AFFECT THE ACCURACY OF THE STATEMENTS SET FORTH THEREIN. THIS DISCUSSION IS FOR GENERAL INFORMATION PURPOSES ONLY. IT DOES NOT ADDRESS TAX CONSIDERATIONS THAT MAY VARY WITH, OR ARE CONTINGENT ON, YOUR INDIVIDUAL CIRCUMSTANCES OR THE APPLICATION OF ANY U.S. NON-INCOME TAX LAWS OR THE LAWS OF ANY STATE, LOCAL OR NON-U.S. JURISDICTION AND HOLDERS ARE URGED TO CONSULT THEIR TAX ADVISORS REGARDING SUCH MATTERS AND THE TAX CONSEQUENCES OF THE ROLLOVER EXCHANGE AND/OR THE MERGER, AS APPLICABLE, TO THEM IN LIGHT OF THEIR PARTICULAR CIRCUMSTANCES.

The obligation of Parent and Merger Sub to consummate the Merger is not subject to any financing condition. Concurrently with the execution of the Merger Agreement, Parent obtained equity financing commitments for the transactions contemplated by the Merger Agreement. Perceptive has delivered an Equity Commitment Letter to Parent, pursuant to which, Perceptive (including its affiliates) has committed to provide Parent, on the terms and subject to the conditions set forth in the Equity Commitment Letter, the Equity Financing and the Limited Guarantee. The Equity Financing, when funded in accordance with the terms of the Equity Commitment Letter, will provide Parent with sufficient available funds to fund (i) the payment of the aggregate merger consideration, (ii) the repayment the Term B Loan Facility, (iii) the purchase of a tail policy under the Company’s current directors’ and officers’ liability insurance policies at the Closing pursuant to the terms of the Merger Agreement and (iv) the payment of any fees and expenses required to be paid at the Closing by the Company, Parent or Merger Sub in connection with the consummation of the transactions contemplated by the Merger Agreement. The Equity Financing, when funded in accordance with the terms of the Equity Commitment Letter, will provide Parent with sufficient available funds to fund the amounts payable by Parent and Merger Sub in connection with the transactions contemplated by the Merger Agreement and the Equity Financing, in each case, in accordance with the Merger Agreement at the Closing. The remainder of the Equity Financing will be used by Parent solely for the purpose of, following the closing of the transactions contemplated by the Merger Agreement, funding the Company’s and its subsidiaries’ operations in the ordinary course of business.

Concurrently with the execution and delivery of the Merger Agreement, Topco and Parent entered into the SLR Rollover Agreement with SLR.

Pursuant to the SLR Rollover Agreement, SLR agreed to, immediately prior to the Effective Time and subject to the subsequent consummation of the Merger, contribute certain of the loans and certain of the accrued but unpaid interest and fees under the SLR Loan Agreement, and the SLR Warrants, to Topco in exchange for Topco Series A Preferred Units and Topco Common Units, and subsequent to the consummation of the Merger, such loans and accrued but unpaid interest and fees under the SLR Loan Agreement, and the SLR Warrants, will be contributed by Topco to Parent and immediately upon receipt by Parent thereof, following the Effective Time, such loans and accrued but unpaid interest and fees under the SLR Loan Agreement, and the SLR Warrants, will thereafter be contributed by Parent to the Surviving Corporation (the “SLR Rollover”).

In addition, pursuant to the SLR Rollover Agreement, prior to the consummation of the Merger, Topco and Parent will not (a) amend, modify or waive any provision of the Merger Agreement or the Equity Commitment Letter without the prior written consent of SLR (not to be unreasonably withheld, conditioned or delayed) or (b) enter into, amend, modify, waive or terminate any provision of any Stockholder Rollover Agreement with the other Rollover Stockholders or any other purchase agreement or subscription agreement for equity interests in Topco or its subsidiaries without the prior written consent of SLR (not to be unreasonably withheld, conditioned or delayed).

At any time prior to the earlier of the consummation of the Merger and the valid termination of the Merger Agreement in accordance with its terms, except as otherwise provided for or permitted by SLR Rollover Agreement, the Merger Agreement or any of the other Transaction Documents or SLR Financing Agreements, SLR agreed not to amend, modify or waive any provision of the SLR Loan Agreement or any other present or future agreement entered into by the Company or any guarantor in favor of SLR Investment Corp. or any other lender in connection with the SLR Loan Agreement (each, a “Loan Document”) without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, SLR may amend, modify or waive the SLR Loan Agreement and any of the other Loan Documents without such prior written consent (i) to extend the maturity date thereunder (including in connection with any extension of the Outside Date (as provided for and defined in the Merger Agreement) under the Merger Agreement or in connection with the entry of, adoption of or promulgation of any law, action or order that delays or prohibits, or purports to delay or prohibit, the consummation of the Closing), (ii) in connection with any pending or threatened Action under the Merger Agreement or any other Transaction Document or SLR Financing Agreement between Parent or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand (including any cause of action, claim, litigation, audit, examination, mediation, action, suit, arbitration, proceeding, investigation or other legal proceeding relating to Parent’s failure to consummate the Closing by the time required pursuant to Section 1.2 of the Merger Agreement), (iii) as required to comply with any applicable law or order, or (iv) to cure any event of default or breach under the SLR Loan Agreement or any of the other Loan Documents (provided, that solely with respect to the immediately preceding clauses (iii) and (iv), SLR will (A) give Topco reasonably prompt written notice of such law or order (in the case of the immediately preceding clause (iii)) or event of default or breach (in the case of the immediately preceding clause (iv)), and (B) provide Topco with a reasonable opportunity to review and comment in good faith on such proposed amendment, modification or waiver (and SLR will consider any such reasonable comments in good faith)).

Pursuant to the SLR Rollover Agreement, if Topco, Parent or Merger Sub receive any notices, communications, filings or other documents (including, without limitation, any drafts thereof) from any third party (including the Company or the Rollover Stockholders in connection with the Merger Agreement, the Stockholder Rollover Agreements, the Voting and Support Agreements, the SLR Warrant Amendment Agreement, the Equity Commitment Letter and the Paying Agent Agreement (as defined in the Merger Agreement) (collectively with the SLR Rollover Agreement, the “Transaction Documents”)) or any of the transactions contemplated by the Transaction Documents, (the “Contemplated Transactions”), Topco will promptly provide a copy thereof to SLR.

In addition, pursuant to the SLR Rollover Agreement, SLR agreed not to (a) transfer any of the loans and accrued but unpaid interest and fees under the SLR Loan Agreement or the SLR Warrants or enter any contract, option or other arrangement or understanding with respect to the transfer of any of the loans and accrued but unpaid interest and fees under the SLR Loan Agreement or the SLR Warrants or any interest therein, (b) deposit any of the loans and accrued but unpaid interest and fees under the SLR Loan Agreement or the SLR Warrants into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect to the loans and accrued but unpaid interest and fees under the SLR Loan Agreement or the SLR Warrants that is inconsistent with SLR’s obligations under the SLR Rollover Agreement, or (c) commit or agree to commit to take any of the actions referred to in the immediately preceding clauses (a) or (b).

The obligations of the SLR Rollover Stockholders to consummate the transactions pursuant to the SLR Rollover Agreement are subject to the subsequent consummation of the Merger in accordance with the terms of the Merger Agreement. The SLR Rollover Agreement will terminate automatically upon the valid termination of the Merger Agreement in accordance with its terms prior to the Effective Time (however, the termination clause and certain miscellaneous clauses will survive the termination of the SLR Rollover Agreement).

The foregoing description of the SLR Rollover Agreement does not purport to be complete and is qualified in its entirety by reference to the complete text of the SLR Rollover Agreement, which is attached as Annex B to this proxy statement and which is incorporated by reference in this proxy statement in its entirety.

Concurrently with the execution and delivery of the Merger Agreement, the Company entered into an Omnibus Warrant Amendment Agreement with the holders of the SLR Warrants (the “SLR Warrant Holders”). Pursuant to the terms and subject to the conditions of the SLR Warrant Amendment Agreement, the Company and the SLR Warrant Holders agreed (a) to, effective immediately prior to the consummation of the SLR Rollover, amend the SLR Warrants to provide for the contribution of the SLR Warrants by the SLR Warrant Holders to Topco in exchange for the consideration to be issued to the SLR Warrant Holders in connection with the SLR Rollover (and the subsequent contribution to Parent and then to the Surviving Corporation, and the cancellation and retirement of the SLR Warrants with no conversion thereof, or payment or distribution with respect thereto, following the consummation of the SLR Rollover), and (b) that, immediately prior to the consummation of the SLR Rollover (but subject to the subsequent consummation of the Merger immediately following the SLR Rollover), the Company will issue to the SLR Warrant Holders all of the SLR Warrants that are outstanding, or unissued but otherwise due to the SLR Warrant Holders, under the SLR Loan Agreement pursuant to the provisions thereof (the “Outstanding SLR Warrants”); provided, in the event that the Merger Agreement is validly terminated in accordance with its terms prior to the consummation of the Merger, the Company will thereafter, upon the election of any SLR Warrant Holder, issue to such SLR Warrant Holder all or any portion of its Outstanding SLR Warrants; provided, further, that the Company will not effect any issuance of the Outstanding SLR Warrants, until the earlier of (i) immediately prior to the consummation of the SLR Rollover (but subject to the subsequent consummation of the Merger immediately following the SLR Rollover), and (ii) such time as the Merger Agreement is validly terminated in accordance with its terms prior to the consummation of the Merger.

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

The SLR Warrant Amendment Agreement will terminate automatically upon the valid termination of the Merger Agreement in accordance with its terms prior to the Merger (however, the termination clause and certain miscellaneous clauses will survive the termination of the SLR Warrant Amendment Agreement).

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

The Eighth Amendment further provides for an amendment to the SLR Loan Agreement to be effective as of the effective date of the Merger (the “Merger Effective Date Amendment”). After giving effect to the contribution of approximately $74.4 million of Loans outstanding under the Existing Term A Loan Facility to Topco pursuant to the SLR Rollover Agreement, the aggregate principal amount outstanding under the senior secured term A loan facility under the Merger Effective Date Amendment will be reduced from approximately $114.4 million to $40.0 million (the “Eighth Amendment Term A Loan Facility”). Loans under the Eighth Amendment Term A Loan Facility bear interest at a floating rate per annum equal to the sum of (a) CME Term SOFR (with a floor of 4.50%) plus (b) 6.00%. The aggregate principal amount outstanding under the Eighth Amendment Term A Loan Facility is due and payable on the earlier of (x) the third anniversary of the effective date of the Merger and (y) October 27, 2027. There is no scheduled amortization of the principal amounts of the loans outstanding under the Eighth Amendment Term A Loan Facility. The Merger Effective Date Amendment also provides for revised financial covenant levels applicable to the Eighth Amendment Term A Loan Facility. All other terms and conditions of the Eighth Amendment Term A Loan Facility, including the guarantees and security relating thereto are substantively identical to those provided for under the existing credit facilities under the SLR Loan Agreement.

The Eighth Amendment also provides, among other things, that (a) each of the lenders will furnish all information concerning it and its affiliates, if applicable, as the Company may reasonably request in connection with the preparation and filing with the SEC of the proxy statement and the Schedule 13E-3, (b) the Company and the lenders may not communicate in writing with the SEC or its staff with respect to the proxy statement or the Schedule 13E-3 without first providing the other party a reasonable opportunity to review and comment on such written communication, and each party will give good faith consideration to all reasonable additions, deletions or changes suggested thereto by the other parties or their respective counsel, (c) the lenders will not issue any press release or announcement concerning the Contemplated Transactions without the prior consent of the Company, except any release or announcement required by applicable law or any rule or regulation of the Nasdaq Global Select Market or any stock exchange to which the relevant lender or any of its affiliates is subject, in which case the lender required to make the release or announcement will use reasonable best efforts to allow the Company reasonable time to comment on such release or announcement in advance of such issuance and will consider in good faith the comments of the Company therein, (d) the Company will not issue any press release or announcement concerning the Contemplated Transactions that makes reference to the lenders or the transactions contemplated by the SLR Warrant Amendment Agreement, the SLR Rollover Agreement, the fifth amended and restated fee letter among the Company, the other loan parties and the lenders and the Eighth Amendment (collectively, the “SLR Financing Agreements”) without the prior consent of SLR, (e) prior to the earlier of the Effective Time and the valid termination of the Merger Agreement, and except to the extent permitted under the Transaction Documents or the SLR Financing Agreements, each lender will not, without the prior written consent of the Company, acquire (directly or indirectly, beneficially or of record) any Shares, or any securities, contracts or obligations convertible into or exercisable or exchangeable for Shares; (f) without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed), the lenders will not engage in any communications with stockholders of the Company regarding the Contemplated Transactions.

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

In addition, the Merger Agreement provides for a process pursuant to which additional Vapotherm stockholders may enter into Additional Stockholder Rollover Agreements with Topco (as further described under “The Merger Agreement—Additional Rollover Agreements”).

As of the date of this proxy statement, the “Rollover Shares” comprise of an aggregate of 534,212 Shares, consisting of the following Shares contributed by the following stockholders, with such Rollover Shares having an aggregate value of $1,164,582 and the Topco Common Units to be received by the Rollover Stockholders have an aggregate value equal to $1,164,582 based on the Per Share Merger Consideration:

The foregoing description of the Stockholder Rollover Agreements does not purport to be complete and is qualified in its entirety by reference to the complete text of the forms of Stockholder Rollover Agreements, which are attached as Annex C and D to this proxy statement and which are incorporated by reference in this proxy statement in their entirety.

Concurrently with the execution of the Merger Agreement, the following stockholders of Vapotherm, which collectively beneficially own 24.6% of Vapotherm’s outstanding Shares, separately entered into Voting and Support Agreements with Parent: Crow’s Nest Holdings LP, Kent Lake Capital LLC, Guines LLC and certain entities associated therewith, including Roystone Capital Management LP and Roystone Capital Holdings, LLC, and The Irrevocable Larson Family Investment Trust (collectively, the “Supporting Stockholders”).

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

The obligations of the Supporting Stockholders under the Voting and Support Agreements will terminate upon the earliest to occur of (i) the mutual written agreement of Parent and the applicable Supporting Stockholder, (ii) the Effective Time, (iii) the valid termination of the Merger Agreement in accordance with the terms thereof and (iv) the occurrence of a change of Board Recommendation.

The foregoing description of the Voting and Support Agreements does not purport to be complete and is qualified in its entirety by reference to the complete text of the form of Voting and Support Agreement, which is attached as Annex E to this proxy statement and which is incorporated by reference in this proxy statement in their entirety.

Additionally, in connection with the Company’s entry into the Merger Agreement, certain members of the Company’s management referred to as “Subscribers” entered into Subscription Agreements, dated as of June 17, 2024, by and between Topco and such members of Company management. Pursuant to and subject to the terms and conditions of the Subscription Agreements, on the closing date of the Merger and immediately following the Effective Time, each Subscriber has agreed to purchase from Topco, a number of Common Units as determined pursuant the applicable Subscription Agreement, at a subscription price of $2.18 per Common Unit, which number of Common Units will, subject to the Subscribers paying the Company prior to the consummation of the Merger an amount of cash equal to the applicable taxes required to be withheld with respect to the vesting and/or settlement or exercise of the Subscriber’s Vapotherm equity awards, as applicable be determined by calculating (a) all of such Subscriber’s consideration payable (net of withholding taxes, except as otherwise agreed by the Subscriber) in respect of such Subscriber’s equity awards, divided by (b) a price per Common Unit equal to $2.18.

Pursuant to, and upon the terms and subject to the conditions of the Subscription Agreement, each Subscriber also agrees not to (i) transfer any of such Subscriber’s equity awards or enter any contract, option or other arrangement or understanding with respect to the transfer of any of such Subscriber’s equity awards or any interest therein, (ii) convert or exchange, or take any action which would, or would reasonably be expected to, result in the conversion or exchange, of any of Subscriber’s equity awards, (iii) take any action that would, or would reasonably be expected to, (A) make any representation or warranty of such Subscriber in such Subscription Agreement materially untrue or materially incorrect, (B) have the effect of preventing, disabling, or materially delaying such Subscriber from performing any of his or her obligations under such Subscription Agreement or (C) result in a breach of any covenant, agreement or obligation of such Subscriber set forth in such Subscription Agreement, or (iv) commit or agree to commit to take any of the actions referred to in the immediately preceding clauses (i), (ii) or (iii).

The estimated fees and expenses incurred or expected to be incurred by Vapotherm in connection with the Merger is as follows:

Vapotherm will be responsible for paying all fees and expenses owed by it in connection with the Merger, whether or not the Merger is consummated. In the event that the Closing occurs, the Surviving Corporation will pay all costs and expenses (including reasonable fees, disbursements and expenses of legal or financial advisors or agents serving in a similar capacity) incurred by Perceptive, Topco, Parent, Merger Sub and SLR, in connection with the Merger Agreement and the transactions contemplated thereby. It is expected that Perceptive, Topco, Parent, Merger Sub and SLR will incur approximately $5.0 million of legal, financial, accounting and other advisory fees and financing fees.

Parent anticipates that Parent will be considered the acquirer for accounting purposes. If so, Parent will use the acquisition method of accounting to allocate the purchase consideration to Vapotherm assets acquired and liabilities assumed, which will be recorded at fair value.

Commercially Reasonable Efforts to Consummate the Merger; Regulatory Filings

Pursuant to the Merger Agreement, each of the parties thereto has agreed to, and to cause its respective subsidiaries to, use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, or advisable under applicable laws to consummate the Merger and the other transactions contemplated by the Merger Agreement as promptly as practicable, and, in any event, by or before the Outside Date (as provided for and defined in the Merger Agreement). For more information, please see “The Merger Agreement—Commercially Reasonable Efforts to Consummate the Merger; Regulatory Filings.”

Lawsuits may be filed against Vapotherm, the Board or Vapotherm’s officers in connection with the Merger, which could prevent or delay completion of the Merger and result in substantial costs to the Company, including any costs associated with indemnification. As of the date of the preliminary version of this proxy statement, no such lawsuits have been filed.

If the Merger is consummated, Vapotherm stockholders and beneficial owners of Shares who continuously hold such Shares through the Effective Time, who do not vote in favor of the Merger Agreement Proposal, who are entitled to and properly demand appraisal of such Shares in accordance with Section 262, and who otherwise comply with the statutory requirements of Section 262 will be entitled to seek appraisal by the Delaware Court of Chancery of the “fair value” of their Shares in connection with the Merger under Section 262. The following discussion is not a complete statement of the law pertaining to appraisal rights under the DGCL and is qualified in its entirety by the full text of Section 262, which is attached as Annex G to this proxy statement and is incorporated by reference herein. The following summary does not constitute any legal or other advice and does not constitute a recommendation that Vapotherm stockholders or beneficial owners of Shares exercise their appraisal rights under Section 262. All references in Section 262 and in this summary to a “stockholder,” “holder of Shares” or “Vapotherm stockholder” are to the record holder of Shares unless otherwise expressly noted herein, and all such references to a “beneficial owner” mean a person who is the beneficial owner of Shares held either in voting trust or by a nominee on behalf of such person unless otherwise expressly noted herein (and the word “person” means any individual, corporation, partnership, unincorporated association or other entity).

Under Section 262, if the Merger is completed, holders and beneficial owners of Shares who: (i) submit a written demand for appraisal of their Shares and do not withdraw their demand, fail to perfect or otherwise lose their appraisal rights, in each case in accordance with Section 262; (ii) do not vote such Shares (and ensure that such Shares are not voted) in favor of the adoption of the Merger Agreement; (iii) continuously are the record holders or beneficial owners, as the case may be, of such Shares through the Effective Time; (iv) who are entitled to demand appraisal rights under Section 262 and (v) otherwise exactly follow the procedures set forth in Section 262 will be entitled to have their shares appraised by the Delaware Court of Chancery and receive payment in cash of the “fair value” of the Shares, exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with interest to be paid on the amount determined to be fair value, if any, as determined by the court. However, after an appraisal petition has been filed, Section 262 provides that the Delaware Court of Chancery will dismiss appraisal proceedings as to all Vapotherm stockholders and beneficial owners of Shares who have asserted appraisal rights unless (a) the total number of shares for which appraisal rights have been pursued and perfected exceeds 1% of the outstanding Shares eligible for appraisal as measured in accordance with subsection (g) of Section 262; or (b) the value of the aggregate Per Share Merger Consideration in respect of the Shares for which appraisal rights have been pursued and perfected exceeds $1.0 million (conditions (a) and (b) referred to as the “ownership thresholds”). Unless the Delaware Court of Chancery, in its discretion, determines otherwise for good cause shown, interest on an appraisal award will accrue and compound quarterly from the Effective Time through the date the judgment is paid at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during such period. However, at any time before the Delaware Court of Chancery enters judgment in the appraisal proceedings, the Surviving Corporation may voluntarily pay to each Vapotherm stockholder and beneficial owner of Common Stock entitled to appraisal an amount in cash pursuant to subsection (h) of Section 262, in which case such interest will accrue after the time of such payment only on an amount that equals the difference, if any, between the amount so paid and the “fair value” of the shares as determined by the Delaware Court of Chancery, in addition to any interest accrued prior to the time of such voluntary cash payment, unless paid at such time. The Surviving Corporation is under no obligation to make such voluntary cash payment prior to such entry of judgment.

Under Section 262, where a merger is to be submitted for approval at a meeting of stockholders, such as the Special Meeting, the corporation, not less than twenty (20) days prior to the meeting, must notify each of the stockholders who was such on the record date for notice of such meeting with respect to shares for which appraisal rights are available that appraisal rights are available and include in the notice either a copy of Section 262 or information directing stockholders to a publicly available electronic resource at which Section 262 may be accessed without subscription or cost. This proxy statement constitutes Vapotherm’s notice to Vapotherm stockholders that appraisal rights are available in connection with the Merger, and the full text of Section 262 is attached to this proxy statement as Annex G and incorporated by reference herein. In connection with the Merger, any holder of Shares or any beneficial owner of Common Stock who wishes to exercise appraisal rights, or who wishes to preserve such holder’s or beneficial owner’s right to do so, should review this discussion and the applicable provisions of Section 262 carefully. Failure to strictly comply with the requirements of Section 262 in a timely and proper manner may result in the loss of appraisal rights under the DGCL. A Vapotherm stockholder or beneficial owner of Common Stock who loses his, her or its appraisal rights will be entitled to receive the Per Share Merger Consideration described in the Merger Agreement. Moreover, the process of dissenting and exercising appraisal rights requires compliance with technical prerequisites, and because of the complexity of the procedures for exercising the right to seek appraisal of Shares, Vapotherm believes that if a Vapotherm stockholder or beneficial owner of Common Stock considers exercising such rights, that Vapotherm stockholder or beneficial owner of Common Stock should seek the advice of legal counsel and financial advisors.

Vapotherm stockholders or beneficial owners of Shares wishing to exercise the right to seek an appraisal of their Shares must do ALL of the following:

In addition, one of the ownership thresholds articulated in Section 262(g) must be met.

Because a proxy that does not contain voting instructions will, unless revoked, be voted in favor of the adoption of the Merger Agreement, a Vapotherm stockholder or beneficial owner of Common Stock who votes by proxy and who wishes to exercise appraisal rights must vote against the adoption of the Merger Agreement, abstain or not vote the shares.

Any holder of Shares or beneficial owner of Shares wishing to exercise appraisal rights must deliver to Vapotherm, before the vote on the Merger Agreement Proposal at the Special Meeting at which the Merger Agreement Proposal will be submitted to Vapotherm stockholders, a written demand for the appraisal of the Vapotherm stockholder’s or beneficial owner of Shares.

In the case of a Vapotherm stockholder, that Vapotherm stockholder must not vote or submit a proxy in favor of the Merger Agreement Proposal. A proxy that is submitted and does not contain voting instructions will, unless revoked, be voted in favor of the adoption of the Merger Agreement, and it will constitute a waiver of the Vapotherm stockholder’s appraisal rights. Therefore, a Vapotherm stockholder who submits a proxy and who wishes to exercise appraisal rights must submit a proxy containing instructions to vote against the adoption of the Merger Agreement or abstain from voting, or otherwise fail to vote, on the adoption of the Merger Agreement.

In the case of a beneficial owner of Common Stock, brokers, banks and other nominees that hold Shares in “street name” for their customers do not have discretionary authority to vote those Shares on the proposal to approve and adopt the Merger Agreement without specific voting instructions from the beneficial owner on such proposal, but such brokers, banks or other nominees will vote such Shares as instructed if the beneficial owner provides such instructions. If a beneficial owner of Shares held in “street name” instructs such person’s broker, bank or other nominee to vote such person’s shares in favor of the proposal to approve and adopt the Merger Agreement, and does not revoke such instruction prior to the vote on the proposal to approve and adopt the Merger Agreement, then such Shares will be voted in favor of the approval and adoption of the Merger Agreement, and it will constitute a waiver of such beneficial owner’s right of appraisal and will nullify any previously delivered written demand for appraisal. Therefore, a beneficial owner of Common Stock who wishes to exercise appraisal rights must either not provide any instructions to such person’s broker, bank or other nominee how to vote on the proposal to approve and adopt the Merger Agreement or must instruct such broker, bank or other nominee to vote against the approval and adoption of the Merger Agreement or abstain from voting on such proposal.

Neither voting against the adoption of the Merger Agreement nor abstaining from voting or failing to vote on the proposal to adopt the Merger Agreement will, in and of itself, constitute a written demand for appraisal satisfying the requirements of Section 262. The written demand for appraisal must be in addition to and separate from any proxy or vote on the adoption of the Merger Agreement. A proxy or vote against the adoption of the Merger Agreement will not constitute a demand. A Vapotherm stockholder’s or beneficial owner of Common Stock’s failure to make the written demand prior to the taking of the vote on the adoption of the Merger Agreement at the Special Meeting will constitute a waiver of appraisal rights.

A demand for appraisal made by a Vapotherm stockholder or beneficial owner of Common Stock must be executed by or on behalf of the holder of record or beneficial owner, as applicable, and must reasonably inform Vapotherm of the identity of such holder or beneficial owner. In addition, in the case of a demand for appraisal made by a beneficial owner of Common Stock, the demand must also reasonably identify the holder of record of the Shares for which the demand is made, be accompanied by documentary evidence of the beneficial owner’s ownership of Common Stock (such as a brokerage or securities account statement containing such information or a letter from the broker or other record holder of such Shares confirming such information) and a statement that such documentary evidence is a true and accurate copy of what it purports to be, and provide an address at which such beneficial owner consents to receive notices given by the Surviving Corporation under Section 262 and to be set forth on the verified list required by subsection (f) of Section 262. Whether made by a Vapotherm stockholder of beneficial owner of Common Stock, a written demand for appraisal must state that the person intends thereby to demand appraisal of the person’s Shares in connection with the Merger. If the Shares are owned of record or beneficially owned in a fiduciary or representative capacity, such as by a trustee, guardian or custodian, such demand must be executed by or on behalf of the record owner or beneficial owner, and if the Shares are owned of record or beneficially owned by more than one person, as in a joint tenancy and tenancy in common, the demand must be executed by or on behalf of all joint record holders or beneficial owners. An authorized agent, including an authorized agent for two or more joint record holders or beneficial owners, may execute a demand for appraisal on behalf of a holder of record or beneficial owner; however, the agent must identify the record owner or owners or beneficial owner or owners, respectively, and expressly disclose that, in executing the demand, the agent is acting as agent for the record owner or owners or beneficial owner or owners, as applicable.

All demands for appraisal pursuant to Section 262 should be in writing and should be mailed or delivered to:

At any time within 60 days after the Effective Time, any holder of Shares or beneficial owner who has delivered a written demand to Vapotherm and who has not commenced an appraisal proceeding or joined that proceeding as a named party may withdraw his, her or its demand for appraisal and accept the Per Share Merger Consideration offered pursuant to the Merger Agreement by delivering to Vapotherm a written withdrawal of the demand for appraisal. However, any such attempt to withdraw the demand made more than 60 days after the Effective Time will require written approval of the Surviving Corporation. No appraisal proceeding in the Delaware Court of Chancery will be dismissed as to any Vapotherm stockholder or beneficial owner without the approval of the Delaware Court of Chancery, and such approval may be conditioned upon such terms as the Delaware Court of Chancery deems just; provided, however, that this provision will not affect the right of any Vapotherm stockholder or beneficial owner who has not commenced an appraisal proceeding or joined that proceeding as a named party to withdraw such Vapotherm stockholder’s or beneficial owner’s demand for appraisal and to accept the Per Share Merger Consideration within 60 days after the Effective Time.

If the Merger is completed, within 10 days after the Effective Time, the Surviving Corporation will notify each holder of Shares or beneficial owner who has properly made a written demand for appraisal pursuant to Section 262, and who has not voted in favor of the adoption of the Merger Agreement, that the Merger has become effective and the effective date thereof.

Within 120 days after the Effective Time, but not thereafter, the Surviving Corporation or any holder of Shares or beneficial owner who has complied with Section 262 and is entitled to seek appraisal under Section 262 may commence an appraisal proceeding by filing a petition in the Delaware Court of Chancery, with a copy served on the Surviving Corporation in the case of a petition filed by a Vapotherm stockholder or beneficial owner, demanding a determination of the fair value of the Shares held by all dissenting Vapotherm stockholders or beneficial owners entitled to appraisal rights who did not vote their Shares in favor of the Merger and properly demanded appraisal of such shares. The Surviving Corporation is under no obligation, and has no present intention, to file a petition, and Vapotherm stockholders and beneficial owners should not assume that the Surviving Corporation will file a petition or initiate any negotiations with respect to the fair value of the Shares. Accordingly, any holders of Shares or beneficial owners who desire to have their Shares appraised should initiate all necessary action to perfect their appraisal rights in respect of their Shares within the time and in the manner prescribed in Section 262. The failure of a holder of Common Stock or beneficial owner to file such a petition within the period specified in Section 262 could nullify the Vapotherm stockholder’s or beneficial owner’s previous written demand for appraisal.

Within 120 days after the Effective Time, any person who has complied with the requirements of Section 262 and who is entitled to appraisal rights thereunder will be entitled, upon written request, to receive from the Surviving Corporation a statement setting forth the aggregate number of Shares not voted in favor of the adoption of the Merger Agreement and with respect to which Vapotherm has received demands for appraisal, and the aggregate number of holders of such Shares or beneficial owners holding or owning such Shares (provided that, in the case of a demand made by a beneficial owner in such person’s name, the record holder of such shares will not be considered a separate stockholder holding such Shares for purposes of such aggregate number). The Surviving Corporation must give such statement to the requesting Vapotherm stockholder or beneficial owner within 10 days after receipt by the Surviving Corporation of the written request for such a statement or within 10 days after the expiration of the period for delivery of demands for appraisal, whichever is later.

If a petition for an appraisal is duly filed by a holder of Shares or a beneficial owner and a copy thereof is served upon the Surviving Corporation, the Surviving Corporation will then be obligated within 20 days after such service to file with the Delaware Register in Chancery a duly verified list containing the names and addresses of all Vapotherm stockholders or beneficial owners of Shares who have demanded payment for their Shares and with whom agreements as to the value of their shares have not been reached. Upon the filing of any such petition, the Delaware Court of Chancery may order that notice of the time and place fixed for the hearing on the petition be mailed to the Surviving Corporation and all of the Vapotherm stockholders or beneficial owners of Shares shown on such verified list at the addresses stated therein. Such notice will also be published at least one week before the day of the hearing in a newspaper of general circulation published in the City of Wilmington, Delaware, or in another publication determined by the Delaware Court of Chancery. The costs of these notices are borne by the Surviving Corporation. After notice to Vapotherm stockholders or beneficial owners of Shares as required by the court, the Delaware Court of Chancery is empowered to conduct a hearing on the petition to determine those Vapotherm stockholders or beneficial owners of Shares who have complied with Section 262 and who have become entitled to appraisal rights thereunder. The Delaware Court of Chancery may require the Vapotherm stockholders or beneficial owners of Shares who demanded appraisal of their Shares represented by certificates to submit their stock certificates (if any) to the Register in Chancery for notation thereon of the pendency of the appraisal proceedings and, if any Vapotherm stockholder or beneficial owner of Common Stock fails to comply with that direction, the Delaware Court of Chancery may dismiss that Vapotherm stockholder or beneficial owner of Common Stock from the proceedings. The Delaware Court of Chancery will dismiss appraisal proceedings as to all Vapotherm stockholders and beneficial owners of Shares who assert appraisal rights unless one of the ownership thresholds is met.

After determining the holders and beneficial owners of Shares entitled to appraisal and that at least one of the ownership thresholds described above has been satisfied as to Vapotherm stockholders or beneficial owners of Shares seeking appraisal rights, the appraisal proceeding will be conducted in accordance with the rules of the Delaware Court of Chancery, including any rules specifically governing appraisal proceedings. Through such proceeding, the Delaware Court of Chancery will determine the “fair value” of the Shares, exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with interest, if any, to be paid upon the amount determined to be the fair value (subject, in the case of interest payments, to any voluntary cash payments made by the Surviving Corporation pursuant to subsection (h) of Section 262 that have the effect of limiting the sum on which interest accrues as described below). In determining fair value, the Delaware Court of Chancery will take into account all relevant factors. Unless the court in its discretion determines otherwise for good cause shown, interest from the Effective Time through the date of payment of the judgment will be compounded quarterly and will accrue at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the Effective Time and the date of payment of the judgment. However, at any time before the Delaware Court of Chancery enters judgment in the appraisal proceedings, the Surviving Corporation may pay to each Vapotherm stockholder and beneficial owner of Common Stock entitled to appraisal an amount in cash, in which case such interest will accrue after the time of such payment only on an amount that equals the difference, if any, between the amount so paid and the “fair value” of the Shares as determined by the Delaware Court of Chancery, in addition to any interest accrued prior to the time of such voluntary payment, unless paid at such time.

In Weinberger v. UOP, Inc., the Supreme Court of Delaware discussed the factors that could be considered in determining fair value in an appraisal proceeding, stating that “proof of value by any techniques or methods which are generally considered acceptable in the financial community and otherwise admissible in court” should be considered, and that “[f]air price obviously requires consideration of all relevant factors involving the value of a company.” The Delaware Supreme Court stated that, in making this determination of fair value, the court must consider market value, asset value, dividends, earnings prospects, the nature of the enterprise and any other facts that could be ascertained as of the date of the Merger that throw any light on future prospects of the merged corporation. Section 262 provides that fair value is to be “exclusive of any element of value arising from the accomplishment or expectation of the Merger.” In Cede & Co. v. Technicolor, Inc., the Delaware Supreme Court stated that such exclusion is a “narrow exclusion [that] does not encompass known elements of value,” but which rather applies only to the speculative elements of value arising from such accomplishment or expectation.

In Weinberger, the Supreme Court of Delaware also stated that “elements of future value, including the nature of the enterprise, which are known or susceptible of proof as of the date of the Merger and not the product of speculation, may be considered.”

Vapotherm stockholders and beneficial owners of Shares considering seeking appraisal should be aware that the fair value of their shares as so determined by the Delaware Court of Chancery could be more than, the same as or less than the Per Share Merger Consideration they would receive pursuant to the Merger if they did not seek appraisal of their shares and that an opinion of an investment banking firm as to the fairness from a financial point of view of the consideration payable in a merger is not an opinion as to, and does not in any manner address, fair value under Section 262. No representation is made as to the outcome of the appraisal of fair value as determined by the Delaware Court of Chancery, and Vapotherm stockholders and beneficial owners of Shares should recognize that such an appraisal could result in a determination of a value higher or lower than, or the same as, the Per Share Merger Consideration. Neither Vapotherm nor Topco anticipates offering more than the Per Share Merger Consideration to any Vapotherm stockholder or beneficial owner of Common Stock exercising appraisal rights, and each of the Vapotherm and Topco reserves the rights to make a voluntary cash payment pursuant to subsection (h) of Section 262 and to assert, in any appraisal proceeding, that for purposes of Section 262, the “fair value” of a share of Common Stock is less than the Per Share Merger Consideration. If a petition for appraisal is not timely filed, or if neither of the ownership thresholds described above has been satisfied as to Vapotherm stockholders or beneficial owners of Shares seeking appraisal rights, then the right to an appraisal will cease. The costs of the appraisal proceedings (which do not include attorneys’ fees or the fees and expenses of experts) may be determined by the Delaware Court of Chancery and charged upon the parties as the Delaware Court of Chancery deems equitable under the circumstances. Upon application of a Vapotherm stockholder or beneficial owner of Common Stock, the Delaware Court of Chancery may also order that all or a portion of the expenses incurred by a Vapotherm stockholder or beneficial owner of Common Stock in connection with an appraisal proceeding, including, without limitation, reasonable attorneys’ fees and the fees and expenses of experts, be charged pro rata against the value of all the shares entitled to be appraised. In the absence of such determination or assessment, each party bears its own expenses.

If any Vapotherm stockholder or beneficial owner of Common Stock who demands appraisal of his, her or its Shares under Section 262 fails to perfect, withdraws or otherwise loses, such holder’s right to appraisal, the Vapotherm stockholder’s or beneficial owner of Common Stock’s Shares will be deemed to have been converted at the Effective Time into the right to receive the Per Share Merger Consideration, without interest, upon delivery by such holder of a properly completed and duly executed letter of transmittal to Vapotherm or the Paying Agent (as defined in this proxy statement) and transfer of the Shares. A Vapotherm stockholder or beneficial owner of Common Stock will fail to perfect, or effectively lose or withdraw, the holder’s right to appraisal if no petition for appraisal is filed within 120 days after the Effective Time, if neither of the ownership thresholds described above is met or if the Vapotherm stockholder or beneficial owner of Common Stock properly delivers to the Surviving Corporation a written withdrawal of the holder’s or beneficial owner’s demand for appraisal and an acceptance of the Per Share Merger Consideration in accordance with Section 262.

From and after the Effective Time, no Vapotherm stockholder or beneficial owner of Common Stock who has demanded appraisal rights will be entitled to vote such Shares for any purpose or to receive payment of dividends or other distributions on the stock, except dividends or other distributions on the holder’s Shares, if any, payable to Vapotherm stockholders as of a time prior to the Effective Time. If no petition for an appraisal is filed, if neither of the ownership thresholds described above is met, or if the Vapotherm stockholder or beneficial owner of Common Stock delivers to the Surviving Corporation a written withdrawal of the demand for an appraisal and an acceptance of the Merger, either within 60 days after the Effective Time or thereafter with the written approval of the Surviving Corporation, then the right of such Vapotherm stockholder or beneficial owner of Common Stock to an appraisal will cease. Once a petition for appraisal is filed with the Delaware Court of Chancery, however, the appraisal proceeding may not be dismissed as to any Vapotherm stockholder or beneficial owner of Common Stock without the approval of the court, and such approval may be conditioned upon such terms as the court deems just; provided, however, that the foregoing will not affect the right of any Vapotherm stockholder or beneficial owner of Common Stock who has not commenced an appraisal proceeding or joined that proceeding as a named party to withdraw such Vapotherm stockholder’s or beneficial owner of Common Stock’s demand for appraisal and to accept the terms offered upon the Merger within 60 days after the Effective Time.

VAPOTHERM STOCKHOLDERS WHO VOTE SHARES IN FAVOR OF THE ADOPTION OF THE MERGER AGREEMENT AND BENEFICIAL OWNERS OF SHARES OF COMMON STOCK WHO INSTRUCT SUCH PERSONS’ BROKERS, BANKS OR OTHER NOMINEES TO VOTE SUCH PERSONS’ SHARES IN FAVOR OF THE ADOPTION OF THE MERGER AGREEMENT WILL NOT BE ENTITLED TO EXERCISE APPRAISAL RIGHTS WITH RESPECT THERETO BUT, RATHER, WILL RECEIVE THE MERGER CONSIDERATION.

Failure to comply strictly with all of the procedures set forth in Section 262 may result in the loss of a Vapotherm stockholder’s statutory appraisal rights. Consequently, any Vapotherm stockholder or beneficial owner of Common Stock wishing to exercise appraisal rights is encouraged to consult legal counsel and financial advisors before attempting to exercise those rights.

Subject to the terms and conditions set forth in the Merger Agreement, the Closing of the Merger will take place on the date which is three business days after the date on which all conditions to the Closing (see “The Merger Agreement—Conditions to the Merger”) have been satisfied or, to the extent permitted by applicable law, waived (excluding conditions that, by their terms, cannot be satisfied until the Closing, but subject to the satisfaction or, to the extent permitted by applicable law, waiver of such conditions at the Closing).

At the Effective Time, the Merger will become effective, upon the filing of the Certificate of Merger with the Office of the Secretary of State of the State of Delaware, or at such later time specified in the Certificate of Merger in accordance with the DGCL. Vapotherm, however, cannot assure that the Effective Time will occur by any particular date, if at all.

At the Effective Time, as a result of the Merger, each Share issued and outstanding immediately prior to the Effective Time (other than Excluded Shares) will be converted into the right to receive the Per Share Merger Consideration, in accordance with and subject to the terms and conditions set forth in the Merger Agreement.

At or prior to the Effective Time, Parent will deposit or cause to be deposited with a bank or trust company mutually acceptable to Vapotherm and Parent (the “Paying Agent”), cash in an amount sufficient to pay the aggregate Per Share Merger Consideration payable as described above.

Promptly after the Effective Time (and in any event within three business days thereafter), Parent and the Surviving Corporation will cause the Paying Agent to mail to each holder of record of a certificate entitled to receive the Per Share Merger Consideration, a letter of transmittal (in customary form reasonably satisfactory to the Company and Parent) and instructions for use in effecting the surrender of the certificate (or effective affidavits of loss in lieu thereof and, if required by the Surviving Corporation or the Paying Agent, the posting by such holder of a bond in customary amount and upon such terms as may be reasonably required by Parent and the Surviving Corporation or the Paying Agent as indemnity against any claim that may be made against Parent or the Surviving Corporation with respect to such certificate) in exchange for the Per Share Merger Consideration, and such certificates will then be cancelled.

Upon surrender of a certificate (or effective affidavits of loss in lieu thereof and any required bond) for cancellation to the Paying Agent, together with such letter of transmittal, duly executed and properly completed in accordance with the instructions thereto, and any other documents that may be required pursuant to such instructions, Parent will thereafter cause the Paying Agent to pay and deliver as promptly as practicable the Per Share Merger Consideration for each Share formerly represented by such certificate (net of applicable withholding taxes), and the certificate surrendered will be thereafter be cancelled.

If any payment pursuant to the Merger is to be made to a person other than the person in whose name the surrendered certificate or book-entry share is registered, it will be a condition to such payment that (i) such certificate or book-entry share must be properly endorsed or must otherwise be in proper form and (ii) the person presenting such certificate or book-entry share must pay any transfer tax or other taxes required.

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

No interest will be paid or accrued for the benefit of holders of certificates or book-entry Shares on the Per Share Merger Consideration and until surrendered, such certificates and book-entry Shares (other than those representing Excluded Shares) will be deemed, from and after the Effective Time, to evidence only the right to receive the Per Share Merger Consideration to which such Shares represented thereby will have been converted, without interest and net of any applicable withholding taxes.

At any time following the date that is 12 months after the Effective Time, Parent may require the Paying Agent to deliver to the Surviving Corporation any funds (including any interest received with respect thereto) that have been made available or are on deposit with to the Paying Agent and that have not been disbursed to holders of certificates or book-entry Shares. Thereafter, such holders will be entitled to look to the Surviving Corporation with respect to the Per Share Merger Consideration payable to the holder of a certificate or book-entry Share. The Surviving Corporation will pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of Shares for the Per Share Merger Consideration. None of Parent, Merger Sub, the Surviving Corporation, the Paying Agent or their respective affiliates will be liable to any person in respect of any Per Share Merger Consideration, or cash held by the Paying Agent, delivered to a public official pursuant to any abandoned property, escheat or other similar laws.

From and after the Effective Time, the stock transfer books of the Surviving Corporation will be closed, and thereafter there will be no further registration of transfers on the records of the Surviving Corporation of Shares that were issued and outstanding immediately prior to the Effective Time. After the Effective Time, any certificate or book-entry Share presented to the Surviving Corporation for any reason will be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth in the Merger Agreement. If, after the Effective Time, certificates are presented to the Surviving Corporation, Parent or the Paying Agent for transfer or any other reason, the holder of any such certificates will be given a copy of the letter of transmittal discussed above and instructed to comply with the instructions in that letter of transmittal in order to receive the cash to which such holder is entitled pursuant to the Merger Agreement.

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

The following summary describes the material provisions of the Merger Agreement. The descriptions of the Merger Agreement in this summary and elsewhere in this proxy statement are not complete and are qualified in their entirety by reference to the Merger Agreement, a copy of which is attached to this proxy statement as Annex A and incorporated into this proxy statement by reference. You should carefully read and consider the entire Merger Agreement, which is the legal document that governs the Merger, because this summary may not contain all the information about the Merger Agreement that is important to you. The rights and obligations of the parties are governed by the express terms of the Merger Agreement and not by this summary or any other information contained in this proxy statement.

The representations, warranties, covenants and agreements described below and included in the Merger Agreement (i) were made only for purposes of the Merger Agreement and as of specific dates; (ii) were made solely for the benefit of the parties to the Merger Agreement; and (iii) may be subject to important qualifications, limitations and supplemental information agreed to by Vapotherm, Topco, Parent and Merger Sub in connection with negotiating the terms of the Merger Agreement and contained in the confidential disclosure schedules. In addition, the representations and warranties have been included in the Merger Agreement for the purpose of allocating contractual risk between Vapotherm, Topco, Parent and Merger Sub rather than to establish matters as facts and may be subject to standards of materiality applicable to such parties that differ from those applicable to investors. Our stockholders are not third-party beneficiaries under the Merger Agreement and should not rely on the representations, warranties, covenants and agreements or any descriptions thereof as characterizations of the actual state of facts or condition of Vapotherm, Topco, Parent and Merger Subs or any of their respective affiliates or businesses. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement. In addition, you should not rely on the covenants in the Merger Agreement as actual limitations on the respective businesses of Vapotherm, Topco, Parent and Merger Sub, because the parties may take certain actions that are either expressly permitted in the confidential disclosure schedule to the Merger Agreement or as otherwise consented to by the appropriate party, which consent may be given without prior notice to the public. The Merger Agreement is described below, and included as Annex A only to provide you with information regarding its terms and conditions, and not to provide any other factual information regarding Vapotherm, Topco, Parent, Merger Sub or their respective businesses. Accordingly, the representations, warranties, covenants and other agreements in the Merger Agreement should not be read alone, and you should read the information provided elsewhere in this document and in SEC filings regarding Vapotherm and its business.

On June 17, 2024, Vapotherm entered into the Merger Agreement, by and among Topco, Parent, Merger Sub and Vapotherm, pursuant to which Merger Sub will merge with and into Vapotherm, with Vapotherm surviving the Merger. The Merger Agreement is included as Annex A to this proxy statement.

The Merger Agreement provides that, upon the terms and subject to the conditions of the Merger Agreement, and in accordance with the DGCL, at the Effective Time, Merger Sub will be merged with and into the Company, whereupon the separate corporate existence of Merger Sub will cease, and the Company will continue as the Surviving Corporation and as a wholly owned subsidiary of Parent. As a result of the Merger, the Common Stock of the Company will no longer be publicly traded. In addition, the Common Stock of the Company will cease trading on the OTCQX and be de-registered under the Exchange Act, in each case, in accordance with applicable laws, rules and regulations, and the Company will no longer file periodic reports with the SEC on account of the Common Stock of the Company. The Merger will be governed by the DGCL. If the Merger is consummated, you will not own any shares of capital stock of the Surviving Corporation.

Subject to the provisions of the Merger Agreement and pursuant to the DGCL, (i) the closing of the Merger and (ii) the deposit of cash by Parent with the Paying Agent and the payment of cash by Parent to the Company, in each case, will take place on the third business day after the satisfaction or, to the extent permitted by applicable law, waiver of the conditions to the Closing (excluding conditions that, by their terms, cannot be satisfied until the Closing, but subject to the satisfaction or, to the extent permitted by applicable law, waiver of such conditions at the Closing). On the Closing Date, the parties to the Merger Agreement will file a certificate of merger with the Secretary of State of the State of Delaware, in such form as is mutually agreeable to the Company and Parent and required by, and executed in accordance with, the DGCL. The Merger will become effective upon the filing of the Certificate of Merger, or at such later time as the Company and Merger Sub may agree in writing and specify in the Certificate of Merger.

At the Effective Time, by virtue of the Merger, the certificate of incorporation and the bylaws of the Company, as in effect immediately prior to the Effective Time will be amended and restated in their entirety to conform to the forms previously agreed to by the parties and, as so amended, will be the certificate of incorporation and bylaws of the Surviving Corporation until thereafter amended in accordance with the certificate of incorporation of the Surviving Corporation and as provided by applicable law.

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

Pursuant to the Merger Agreement, at the Effective Time of the Merger, and by virtue of the Merger, each Share issued and outstanding immediately prior to the Effective Time (other than the Excluded Shares described in clauses (ii) through (v) below) will be converted into the right to receive an amount in cash equal to the Per Share Merger Consideration of $2.18, without interest, and as of the Effective Time, all such Shares will no longer be outstanding and will automatically be cancelled and will cease to exist, and each holder thereof will cease to have any rights with respect thereto, except the right to receive the Per Share Merger Consideration. The Excluded Shares consist of: (i) each Share held in the treasury of the Company or owned by the Company or any direct or indirect wholly owned subsidiary of the Company immediately prior to the Effective Time, which Share will be cancelled and retired without any conversion thereof and will cease to exist and no payment or distribution will be made with respect thereto; (ii) each Share owned by Parent, Merger Sub or any direct or indirect wholly owned subsidiary of Parent or Merger Sub immediately prior to the Effective Time (other than the Rollover Shares (as defined below)), which Share will be cancelled and retired without any conversion thereof and will cease to exist and no payment or distribution will be made with respect thereto; (iii) each Share held by a holder (or “beneficial owner” (as defined in Section 262(a) of the DGCL)) who is entitled to demand and properly exercises and perfects its demand for appraisal of such Share in accordance with Section 262 of the DGCL and as described in the Merger Agreement); and (iv) each Rollover Share.

As of the Effective Time, except as otherwise agreed to between Parent, the Company and a holder of a Stock Option that is outstanding immediately prior to the Effective Time, whether or not vested, will be cancelled and in exchange therefor the holder will be entitled to receive an amount in cash, less applicable tax withholdings, equal to (i) the total number of Shares subject to the vested portion of such Stock Option immediately prior to the Effective Time (including any portion of the Stock Option that becomes vested as a result of the transaction), multiplied by (ii) the excess, if any, of the Per Share Merger Consideration over the applicable exercise price per Share subject to such Stock Option. No holder of a Stock Option that, as of immediately prior to such cancellation, has an exercise price per Share that is equal to or greater than the Per Share Merger Consideration will be entitled to any payment with respect to such cancelled Stock Option. Subject to compliance with certain sections of the Merger Agreement, Parent and Topco may agree with certain holders of Stock Options, at such holder’s election, to use all of the cash consideration payable in respect of such Stock Options (the “Rollover Stock Option Consideration”) to subscribe for a number of Topco Common Units equal to (i) such holder’s Rollover Stock Option Consideration, divided by (ii) the Per Share Merger Consideration. Any such Topco Common Units would be provided to the holder in lieu of such Rollover Stock Option Consideration.

As of the Effective Time, except as otherwise agreed to between Parent, the Company and a holder of an RSU Award that is outstanding, whether or not vested, immediately prior to the Effective Time will be cancelled and in exchange therefor the holder will be entitled to receive an amount in cash, less applicable tax withholdings, equal to (i) the total number of Shares subject to the vested portion of such RSU Award immediately prior to the Effective Time (including any portion of RSU Award that becomes vested as a result of the transaction) multiplied by (ii) the Per Share Merger Consideration. Subject to compliance with certain sections of the Merger Agreement, Parent and Topco may agree with certain holders of RSU Awards, at such holders election, to use all of the cash consideration payable in respect of such RSU Award (the “Rollover RSU Consideration”) to subscribe for a number of Topco Common Units equal to (i) such holder’s Rollover RSU Consideration, divided by (ii) the Per Share Merger Consideration. Any such Topco Common Units would be provided to the holder in lieu of such Rollover RSU Consideration.

As of the Effective Time, except as otherwise agreed to between Parent, the Company and a holder of a PSU Award that is outstanding immediately prior to the Effective Time will be cancelled and in exchange therefor the holder will be entitled to receive an amount in cash, less applicable tax withholdings, equal to (i) the total number of Shares subject to the vested portion of such PSU Award immediately prior to the Effective Time (including any portion of the PSU Award that becomes vested as a result of the transaction) (assuming target performance is achieved, or such higher level as required by the terms of such PSU Award), multiplied by (ii) the Per Share Merger Consideration. Subject to compliance with certain sections of the Merger Agreement, Parent and Topco may agree with certain holders of PSU Awards, at such holders election, to use all of the cash consideration payable in respect of such PSU Award (the “Rollover PSU Consideration”) to subscribe for a number of Topco Common Units equal to (i) such holder’s Rollover PSU Consideration, divided by (ii) the Per Share Merger Consideration. Any such Topco Common Units would be provided to the holder in lieu of such Rollover PSU Consideration.

As soon as practicable following the date of the Merger Agreement, the Company and the Board (or, if appropriate, any committee thereof) will take all actions that the Company and the Board (or, if appropriate, any committee thereof) determine to be reasonably necessary (including the adoption of resolutions) to (i) cause the offering period under the Company’s 2019 Employee Stock Purchase Plan (the “ESPP”) that is ongoing as of the date of the Merger Agreement to be the final offering period under the ESPP and the options under the ESPP to be exercised on the earlier of (A) the scheduled purchase date for such offering period and (B) the date that is five business days prior to the Closing Date (with any participant payroll deductions not applied to the purchase of shares of Common Stock pursuant to the ESPP promptly returned to the participant), (ii) prohibit any individual who is not participating in the ESPP as of the date of the Merger Agreement from commencing participation in the ESPP following the date of the Merger Agreement, (iii) prohibit participants in the ESPP from increasing their payroll deductions from those payroll deductions in effect as of the date of the Merger Agreement and (iv) terminate the ESPP effective as of, and subject to, the Effective Time. At least five business days prior to the Closing Date, Parent and its counsel will have the right to review and comment on all resolutions to be adopted by the Board (or a duly authorized committee thereof), and the Company will reflect all reasonable and timely provided comments of Parent made in good faith.

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

None of Topco, Parent, nor the Surviving Corporation will assume any of the warrants to purchase shares of Common Stock issued by the Company to Comerica Bank pursuant to the term of the Company’s prior loan and security agreements with Comerica (collectively, the “Comerica Warrants”). Each of the Comerica Warrants that is outstanding and not exercised as of immediately prior to the Effective Time will be terminated without payment or consideration in accordance with the terms thereof immediately prior to the Effective Time and all such Comerica Warrants will no longer be outstanding and will automatically be cancelled and will cease to exist, and each holder thereof will cease to have any rights with respect thereto. Prior to the Effective Time and without limitation to the other provisions of the Merger Agreement related to the Comerica Warrants, the Company will take all such actions as may be required or contemplated by the terms of the Comerica Warrants, including the giving of any written notices in connection with the Contemplated Transactions. The Company will provide Parent with a reasonable opportunity to review and comment on any such written notice prior to the dispatch thereof, and the Company will consider in good faith such comments.

In connection with the Company’s private placement in February 2023, the Company issued certain pre-funded warrants to purchase Shares (the “2023 Pre-Funded Warrants’) and other warrants to purchase Shares (the “2023 Warrants” and, together with the SLR Warrants, the Comerica Warrants and the 2023 Pre-Funded Warrants, the “Warrants”).

Each of the 2023 Pre-Funded Warrants that is outstanding immediately prior to the Effective Time and is not exercised prior to the Effective Time will be treated in accordance with the terms thereof in connection with the Contemplated Transactions and from and after the Effective Time, will be exercisable in exchange (by payment of the applicable exercise price or on a net exercise basis) for an amount of cash equal to (a) the number of shares of Common Stock that such 2023 Pre-Funded Warrant would have entitled the holder thereof to purchase immediately prior to the Effective Time (subject to payment of the applicable exercise price or on a net exercise basis), multiplied by (b) the Per Share Merger Consideration (the “2023 Pre-Funded Warrant Consideration”) (which amount will be payable net of any applicable withholding tax), in accordance with the terms thereof. To the extent that any of the 2023 Pre-Funded Warrants are exercised prior to the Effective Time, such 2023 Pre-Funded Warrants will be treated in accordance with the terms thereof.

Each of the 2023 Warrants that is outstanding immediately prior to the Effective Time and is not exercised prior to the Effective Time will be treated in accordance with the terms thereof in connection with the Contemplated Transactions. Prior to the Effective Time the Company will take all such actions as may be required or contemplated by the terms of the 2023 Warrants, including the giving of any written notices in connection with the Contemplated Transactions. The Company will provide Parent with a reasonable opportunity to review and comment on any such written notice prior to the dispatch thereof, and the Company will consider in good faith such comments.

The Merger Agreement provides that if, between the date of the Merger Agreement and the Effective Time there is any change in the outstanding number or class of the Shares by reason of any reclassification, recapitalization, stock split (including a reverse stock split), division, subdivision, or combination, exchange, or readjustment of shares, or any stock dividend or stock distribution occurring (or for which a record date is established) or any other similar transaction, then the Per Share Merger Consideration will be appropriately adjusted to reflect such change.

Immediately following the Effective Time, Parent will pay (or cause to be paid), by wire transfer of immediately available funds, to the Surviving Corporation, an amount equal to (a) all of the cash held by Parent following the Effective Time, including the balance of the Closing Payment Commitment (as defined in the Equity Commitment Letter) made by Perceptive to Parent (indirectly through Topco) pursuant to the Equity Commitment Letter and Perceptive’s Contribution Agreement and any other contributions made, directly or indirectly, to the capital of Parent (which, for the avoidance of doubt, will be net of the amount equal to the sum of, without duplication, the aggregate amount of the Merger Consideration, the 2023 Pre-Funded Warrant Consideration and the aggregate Equity Award Consideration paid by Parent at or prior to the Effective Time to the Paying Agent and the Company (with respect to the Equity Award Consideration), as contemplated by the Merger Agreement in connection with, and for the purpose of consummating, the Contemplated Transactions), less (b) without duplication of any amounts netted pursuant to the parenthetical in the immediately preceding clause (a), an amount equal to the documented, out-of-pocket expenses, up to a cap, applicable to fees and expenses of Perceptive, Topco, Parent, Merger Sub and their respective affiliates incurred in connection with the Contemplated Transactions for which reasonable documentation evidencing the incurrence of such fees and expenses has been provided by Parent to the Company at least two business days prior to the Effective Time, which will be retained by Perceptive, Topco or Parent and their respective affiliates in satisfaction of such obligation of the Surviving Corporation pursuant to the Equity Commitment Letter. Any retained portion of the expenses withheld pursuant to the immediately preceding clause (b) (subject to a cap) will be deemed to have been contributed from Perceptive to Topco in exchange for Topco Series A Preferred Units issued by Topco to Perceptive, and thereafter contributed from Topco to Parent as a contribution to Parent’s capital.

At or prior to the Effective Time, Parent will (i) deposit or cause to be deposited with the Paying Agent, cash in an amount sufficient to pay, without duplication, the Merger Consideration and the 2023 Pre-Funded Warrant Consideration, if any and (ii) Parent will pay or cause to be paid to the Company, cash in an amount sufficient to pay (A) the aggregate Equity Award Consideration, the Rollover RSU Consideration, the Rollover PSU Consideration and the Rollover Stock Option Consideration (provided that, to the extent applicable, for administrative convenience, Parent will be deemed to have paid or caused to be paid to the Company amounts in respect of the Rollover RSU Consideration, the Rollover PSU Consideration and the Rollover Stock Option Consideration, but no cash will actually be delivered to the Company in respect thereof), and any payroll or employment taxes related thereto, and (B) the Credit Agreement Closing Payments (as defined below).

If any payment pursuant to the Merger is to be made to a person other than the person in whose name the surrendered certificate or book-entry Share is registered, it will be a condition to such payment that (i) such certificate or book-entry Share must be properly endorsed or must otherwise be in proper form and (ii) the person presenting such certificate or book-entry Share must pay any transfer tax or other taxes required.

At any time following the date that is 12 months after the Effective Time, Parent may require the Paying Agent to deliver to the Surviving Corporation any funds (including any interest received with respect thereto) that have been made available to or are on deposit with the Paying Agent and that have not been disbursed to holders of certificates or book-entry Shares. Thereafter, such holders will be entitled to look to the Surviving Corporation with respect to the Per Share Merger Consideration payable to the holder of a certificate or book-entry Share. The Surviving Corporation will pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of Shares for the Per Share Merger Consideration. None of Parent, Merger Sub, the Surviving Corporation, the Paying Agent or their respective affiliates will be liable to any person in respect of any Per Share Merger Consideration, or any cash that was held by the Paying Agent, that was delivered to a public official pursuant to any abandoned property, escheat or other similar laws.

Topco, Parent, Merger Sub, the Company and the Paying Agent (and any applicable withholding agent) are entitled to deduct and withhold from any amounts payable or otherwise deliverable pursuant to the Merger Agreement such amounts as are required to be deducted and withheld therefrom on account of taxes under U.S. federal, state or local law or any other applicable law; provided that, other than (i) any compensatory amounts, (ii) any applicable U.S. backup withholding or (iii) withholding under Section 1445 of the Code as a result of a failure by the Company to deliver to Parent, at or prior to the closing of the Merger, a certificate and corresponding notice to the IRS and duly executed and acknowledged, satisfying the requirements of the applicable treasury regulations under the Code, the withholding agent intending to so deduct or withhold will use commercially reasonable efforts to provide prior notice to the Company that it intends to deduct or withhold, and will reasonably cooperate with the Company to minimize or eliminate such withholding to the extent permitted by applicable law.

In the Merger Agreement, the Company has made customary representations and warranties to Parent, Topco and Merger Sub with respect to:

Some of the representations and warranties in the Merger Agreement made by the Company are qualified as to “materiality” or “Company Material Adverse Effect.” For purposes of this proxy statement and the Merger Agreement, a “Company Material Adverse Effect” means, with respect to the Company, any change, effect, event, inaccuracy, occurrence, circumstance, condition, fact or state of facts or other matter that, individually or in the aggregate, (x) has or would reasonably be expected to have a material adverse effect on the business, condition (financial or otherwise), assets, liabilities, operations, or results of operations of the Company and its subsidiaries, taken as a whole, or (y) would, or would reasonably be expected to, prevent, materially delay or materially impair the ability of the Company to consummate the Contemplated Transactions; provided, however, that, for purposes of clause (x) above only, any changes, effects, events, inaccuracies, occurrences, circumstances, conditions, facts or states of facts or other matters resulting or arising from or in connection with any of the following will not be deemed to constitute a Company Material Adverse Effect, either alone or in combination, and will be disregarded in determining whether a Company Material Adverse Effect has occurred:

In the Merger Agreement, Topco, Parent and Merger Sub have made representations and warranties to the Company with respect to:

Some of the representations and warranties in the Merger Agreement made by Topco, Parent or Merger Sub are qualified as to “materiality” or “Parent Material Adverse Effect.” “Parent Material Adverse Effect,” as used in the Merger Agreement, means any change, effect, event, inaccuracy, occurrence, or other matter that has a material adverse effect on the ability of Topco, Parent or Merger Sub to timely perform its obligations under the Merger Agreement or to timely consummate the Contemplated Transactions or would, or would reasonably be expected to, prevent, materially delay or materially impair the ability of Topco, Parent or Merger Sub to consummate the Contemplated Transactions.

None of the representations and warranties of the parties to the Merger Agreement contained in the Merger Agreement (or in any instrument delivered pursuant to the Merger Agreement) survive the Merger.

The Company has agreed that, during the period from the date of the Merger Agreement until the earlier of the Effective Time and the valid termination of the Merger Agreement pursuant to its terms, except (i) as set forth in the Company’s confidential disclosure letter to the Merger Agreement, (ii) as required by applicable law, (iii) as expressly permitted or contemplated by the Merger Agreement, certain other transaction documents or the SLR Loan Agreement to which the Company is a party (including in connection with the Contemplated Transactions), (iv) as necessary in response to certain health measures to protect the health and safety of the Company’s and its subsidiaries’ customers, suppliers, partners, employees, licensors, licensees, distributors and others having business dealings with the Company and its subsidiaries (provided that the Company has consulted with Parent in advance (to the extent reasonably practicable) and considered in good faith any recommendations of Parent) or (v) with the prior written consent of Parent (which consent will not be unreasonably withheld, conditioned or delayed), the Company will, and will cause its subsidiaries to, use commercially reasonable efforts to (A) carry on its business in the ordinary course of business, (B) preserve intact its assets, properties and business organization and (C) preserve its relationships and goodwill with customers, suppliers, partners, licensors, licensees, distributors, Governmental Bodies, employees and others having business dealings with it with the intention that its goodwill and ongoing business will not be impaired in any material respect on the Closing Date. Any action, the subject matter of which is addressed by the restrictions set forth in the following paragraph, will be deemed compliant with the restrictions set forth in this paragraph, if compliant with the restrictions set forth in the following paragraph.

The Company has further agreed that, during the period from the date of the Merger Agreement until the earlier of the Effective Time and the valid termination of the Merger Agreement pursuant to its terms, except (i) as set forth in the Company’s confidential disclosure letter to the Merger Agreement, (ii) as required by applicable law, or (iii) as expressly permitted or contemplated by the Merger Agreement, certain other transaction documents or the SLR Loan Agreement to which the Company is a party (including in connection with the Contemplated Transactions), the Company will not and will not permit any of its subsidiaries, without the prior written consent of Parent (which consent, except for certain actions, will not be unreasonably withheld, conditioned or delayed):

The Company will not, and will cause its subsidiaries, and its and their respective directors and officers not to, will direct its legal counsel, financial advisors and agents serving in such similar capacities not to, and will not authorize or direct its other representatives to, directly or indirectly: (i) initiate, solicit, or knowingly encourage or knowingly facilitate the submission of any Acquisition Proposal, (ii) participate or engage in discussions or negotiations with any person (other than Parent, Merger Sub, SLR (with respect to the Contemplated Transactions or SLR Financing Agreements and the transactions contemplated thereby) or designees or affiliates of Parent, Merger Sub or SLR (with respect to the Contemplated Transactions or SLR Financing Agreements and the transactions contemplated thereby)) who has submitted an Acquisition Proposal or any proposal, offer or inquiry relating to, or that would reasonably be expected to lead to, an Acquisition Proposal, (iii) provide any non-public information or afford access to the business, properties, assets, books, records or personnel of the Company or any of its subsidiaries, in each case, to any person or host any meeting (including by telephone or videoconference) with any person (in each case, other than Parent, Merger Sub, SLR (with respect to the Contemplated Transactions or SLR Financing Agreements and the transactions contemplated thereby), or any designees or affiliates of Parent, Merger Sub or SLR (with respect to the Contemplated Transactions or SLR Financing Agreements and the transactions contemplated thereby)) or any Rollover Stockholder or Company stockholder that may execute an Additional Rollover Agreement in connection with an actual or potential investment in Topco in connection with, or for the purpose of knowingly encouraging or facilitating, an Acquisition Proposal or any offer, proposal or inquiry relating to an Acquisition Proposal, (iv) in connection with any Acquisition Proposal, grant any waiver, amendment or release of or under, or fail to enforce, any confidentiality agreement (other than any standstill or similar provision), in each case, in a manner favorable to the counterparty thereto, or (v) enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, or other contract or agreement relating to an Acquisition Proposal (in each case, other than Parent, Merger Sub, SLR (with respect to the Contemplated Transactions or SLR Financing Agreements and the transactions contemplated thereby), or any designees or affiliates of Parent, Merger Sub or SLR (with respect to the Contemplated Transactions or SLR Financing Agreements and the transactions contemplated thereby)).

The Company will, and will cause its subsidiaries to, and will instruct its representatives to, immediately cease any solicitation, discussions, or negotiations with any person (other than Parent, Merger Sub, SLR (with respect to the Contemplated Transactions or SLR Financing Agreements and the transactions contemplated thereby) or any designee of Parent, Merger Sub, SLR (with respect to the Contemplated Transactions or SLR Financing Agreements and the transactions contemplated thereby) or any Rollover Stockholder or Company stockholder that may execute an Additional Rollover Agreement in connection with an actual or potential investment in Topco) with respect to any Acquisition Proposal or any inquiry, proposal or offer relating to an Acquisition Proposal, and, promptly (but in no event later than forty-eight (48) hours following the date of the Merger Agreement) will request the return or destruction of all confidential information provided by or on behalf of the Company or its subsidiaries to any such person in the twelve (12) months prior to the date of the Merger Agreement and terminate access to any physical or electronic data rooms relating to a possible or actual Acquisition Proposal. Notwithstanding the foregoing, the Company and its representatives may (A) seek to clarify and understand the terms and conditions of any inquiry or proposal made by any person solely to determine whether such inquiry or proposal constitutes an Acquisition Proposal and (B) inform a person that has made, or to the Company’s knowledge, is considering making, following the date of the Merger Agreement, an Acquisition Proposal of the provisions of this paragraph and the foregoing paragraph. Any breach of the provisions described in this paragraph by any subsidiary of the Company or any of their respective directors or officers will be deemed to constitute a breach by the Company.

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

Notwithstanding the foregoing, the Contemplated Transactions are excluded from the definition of “Acquisition Proposal.”

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

Notwithstanding the restrictions described above, if at any time following the date of the Merger Agreement and until the Company’s receipt of the Requisite Stockholder Approval (i) the Company receives a bona fide written Acquisition Proposal that did not result from a material breach of the restrictions described above and (ii) the Board, or a committee (including the Special Committee or an alternative special committee of the Board consisting of independent directors) thereof, determines in good faith, after consultation with outside legal counsel and financial advisors, that such Acquisition Proposal constitutes or is reasonably likely to lead to or result in a Superior Proposal and that failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Board or the Special Committee (or an alternative special committee of the Board consisting of independent directors) under applicable law, then the Company may:

provided, that any competitively sensitive information or data provided to any such person pursuant to such confidentiality agreement who is, or whose affiliates include, a competitor, supplier or customer of the Company or any of its subsidiaries will be provided in a separate “clean data room” and subject to customary “clean team” arrangements regarding access to such information or data and (2) the Company will, as promptly as reasonably practicable, and in any event within one (1) business day, provide or make available to Parent, Merger Sub and their respective representatives any non-public information concerning the Company or any of its subsidiaries provided or made available to such other person or any of its representatives that was not previously provided or made available to Parent and Merger Sub.

Any information provided by the Company or its representatives to Parent and its representatives pursuant to the above will be kept confidential in accordance with the Confidentiality Agreement.

The Merger Agreement further provides that, except as expressly permitted by the Merger Agreement, the Board, and each committee (which committee must include the Special Committee or an alternative special committee of the Board consisting of independent directors) thereof, will not (i) cause or permit the Company or its subsidiaries to enter into any acquisition agreement, merger agreement, joint venture agreement, partnership agreement or similar definitive agreement (other than an acceptable confidentiality agreement as permitted in accordance with the above) relating to any Acquisition Proposal (an “Alternative Acquisition Agreement”) or (ii) make a Change of Board Recommendation.

As described above, the Board (acting upon the recommendation of the Special Committee) has recommended that the Company’s stockholders approve the adoption of the Merger Agreement and approve the Merger on the terms and subject to the conditions set forth in the Merger Agreement (the “Board Recommendation”). Unless the Board has made a change of Board Recommendation, the Board has also agreed to include the Board Recommendation in the proxy statement.

Except as described below, during the period between the signing of the Merger Agreement and the Effective Time, the Board (or a committee thereof) or the Company, as applicable, may not:

Any action described in the foregoing bullet points is referred to as a “Change of Board Recommendation.”

However, notwithstanding the foregoing, at any time prior to the Company’s receipt of the Requisite Stockholder Approval, the Company may terminate the Merger Agreement to enter into an Alternative Acquisition Agreement (an “Alternative Acquisition Termination”) if:

Additionally, at any time prior to the Company’s receipt of the Requisite Stockholder Approval, the Board or a committee (including the Special Committee) thereof may make a Change of Board Recommendation in response to an Acquisition Proposal (an “Acquisition Proposal Change of Board Recommendation”) if:

Finally, at any time prior to the Company’s receipt of the Requisite Stockholder Approval, the Board or a committee (including the Special Committee) thereof may make a Change of Board Recommendation in response to an Intervening Event (as defined elsewhere in this proxy statement) if:

The above will also apply to any amendment, revision or change to any material terms or conditions (it being understood that the Per Share Merger Consideration payable in respect of each share of Common Stock of the Company will constitute a material term) of any applicable Superior Proposal with respect to an Alternative Acquisition Termination and an Acquisition Proposal Change of Board Recommendation, and will require a revised Determination Notice and a new Notice Period pursuant to the last bullet point in each of the foregoing, as the case may be, and any material change or material development in respect of the facts and circumstances relating to any Intervening Event and require a revised Determination Notice and a new Notice Period pursuant to the last bullet point in the foregoing.

The Merger Agreement further provides that, during any Notice Period, if requested by Parent, the Company will, and will instruct those representatives who would reasonably be expected by the Company to participate in such negotiations to, negotiate in good faith with Parent and its representatives regarding potential changes to the Merger Agreement and the other Transaction Documents.

For purposes of this proxy statement and the Merger Agreement, a “Determination Notice” means any notice delivered by the Company to Parent pursuant to the second bullet point of each of “Change of Board Recommendation – Alternative Acquisition Termination,” “Change of Board Recommendation – Acquisition Proposal Change of Board Recommendation” and “Change of Board Recommendation – Intervening Event Change of Board Recommendation” and “Notice Period” means the period beginning at 5:00 p.m. Eastern Time on the day of delivery by the Company to Parent of a Determination Notice (even if such Determination Notice is delivered after 5:00 p.m. Eastern Time) and ending on the fourth business day thereafter at 5:00 p.m. Eastern Time; provided that, with respect to any amendment to any material terms of any Superior Proposal, or any material change to the facts and circumstances relating to any Intervening Event, as applicable, the Notice Period will extend until 5:00 p.m. Eastern Time on the second business day after delivery of such revised Determination Notice.

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

None of the provisions described above under “ —No Solicitation” or elsewhere in the Merger Agreement will prohibit (i) the Board or a committee (including the Special Committee) thereof from (A) taking and disclosing to the Company’s stockholders a position contemplated by Rule 14e-2(a) and Rule 14d-9(f) promulgated under the Exchange Act, or (B) making any public statement if the Board or a committee (including the Special Committee) thereof determines in good faith (after consultation with outside legal counsel) that the failure to make such statement would reasonably be expected to be inconsistent with its fiduciary duties under applicable law or (ii) the Company or the Board from making any disclosure required under the Exchange Act, provided that any such action that would otherwise constitute a Change of Board Recommendation is taken only in accordance with the provisions described in this Change of the Board Recommendation subsection.

Notwithstanding anything to the contrary in the Merger Agreement, nothing described above under “—Change of the Board Recommendation” will apply to, or will be deemed to prohibit, limit, restrict, impair or otherwise affect the ability of the Company, its subsidiaries and its and their respective representatives to engage in discussions or negotiations or take any other action that would otherwise be prohibited described above in sub-section (i) under “– No Solicitation” in connection with an actual or potential investment in Topco by any Rollover Stockholder or Company stockholder that may execute an Additional Rollover Agreement (including, for the avoidance of doubt, any discussions or negotiations with any Company stockholder that may execute an Additional Rollover Agreement, SLR or their respective affiliates or representatives) and (ii) with SLR and its affiliates and representatives in its capacity as a lender of the Company and its subsidiaries, including in connection with the Contemplated Transactions, the SLR Financing Agreements and the other Loan Documents, and no agreement, discussion, negotiation or action taken by the Company, its subsidiaries or any of its representatives with respect to any Rollover Stockholder or Company stockholder that may execute an Additional Rollover Agreement in connection with an actual or potential investment in Topco or any discussions with SLR or any of its affiliates or representatives in its capacity as a lender of the Company and its subsidiaries, including in connection with the Contemplated Transactions, the SLR Financing Agreements and the other Loan Documents, will be deemed a breach or violation of any of the provisions described above under “ – No Solicitation.”

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

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

The Company will not be required to hold the Special Meeting prior to the date that is three business days after the date on which Parent notifies the Company that all of the filings (or draft filings where applicable) necessary to seek certain regulatory approvals have been filed with the relevant Governmental Body (and such filings have actually been made) and the Company will be permitted to postpone or adjourn the meeting until such filings (or draft filings as applicable) have been filed.

If at any time prior to the Special Meeting, any information relating to the Company, Parent, Merger Sub or any of their respective affiliates should be discovered by the Company, on the one hand, or Parent, on the other hand, that should be set forth or incorporated by reference in an amendment or supplement to the proxy statement or the Schedule 13E-3, as the case may be, so that such filing would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, then the party that discovers such information will promptly notify the other, and an appropriate amendment or supplement to such filing describing such information will be promptly prepared and filed with the SEC by the appropriate party and, to the extent required by applicable law or the SEC or its staff, disseminated to the Company’s stockholders.

Commercially Reasonable Efforts to Consummate the Merger; Regulatory Filings

Pursuant to the Merger Agreement, each of the parties to the Merger Agreement has agreed to use its, and to cause its respective subsidiaries to use their, respective commercially reasonable efforts to take, or cause to be taken, prior to the Effective Time, all actions and to do, or cause to be done, all things necessary, proper, or advisable under applicable laws to consummate the Merger and the other Contemplated Transactions as promptly as possible and, in any event, by or before the Outside Date (as provided for and defined in the Merger Agreement). The parties to the Merger Agreement have agreed to use commercially reasonable efforts to (i) obtain or cause to be obtained, or make or cause to be made, all required permits, licenses, registrations, certificates, authorizations, orders, exemptions, clearances, consents and approvals under applicable healthcare laws set forth on the Company’s confidential disclosure letter in connection with the Contemplated Transactions, in each case, as promptly as practicable and in any event prior to the expiration of any applicable legal deadline (provided that, unless otherwise agreed by the Company and Parent in writing, the applicable filings (or draft filings where applicable) set forth on the Company’s confidential disclosure letter must be made as promptly as practicable after the date of the Merger Agreement (and in no event later than 10 business days after the date of the Merger Agreement)), and (ii) make an appropriate response as promptly as practicable to any request for information and documentary material that may be made by a Governmental Body pursuant to any antitrust laws, foreign investment laws or healthcare laws. Parent will, with the reasonable cooperation of the Company, be responsible for making any filing or notification required for the purposes of consents or approvals required under any applicable antitrust laws or foreign investment laws. The Company will, with the reasonable cooperation of Parent, be responsible for making any filing or notification required for the purposes of the regulatory approvals required under any applicable healthcare laws.

Each of the parties to the Merger Agreement has also agreed (i) to consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions, and proposals made or submitted by or on behalf of such party in connection with proceedings under or relating to any antitrust laws, foreign investment laws or healthcare laws, (ii) to give each other reasonable advance notice of all meetings with any Governmental Body relating to any antitrust laws, foreign investment laws or healthcare laws, (iii) to give each other an opportunity to participate in each of such meetings, (iv) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Body relating to any antitrust laws, foreign investment laws or healthcare laws, (v) if any Governmental Body initiates a substantive oral communication regarding any antitrust laws or foreign investment laws, to promptly notify the other parties of the substance of such communication, (vi) to provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications with a Governmental Body regarding any antitrust laws, foreign investment laws or healthcare laws and (vii) to provide each other with copies of all substantive written communications to or from any Governmental Body relating to any antitrust laws, foreign investment laws or healthcare laws. Any such disclosures or provision of copies by one party to the others may be redacted or made on an outside counsel basis, if and to the extent reasonably appropriate.

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

In the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Body challenging the Merger, each of Parent, Merger Sub, and the Company have agreed to cooperate in all respects with each other and to use its commercially reasonable efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, decision, or other order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger.

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

From and after the date of the Merger Agreement until the earlier of the Effective Time and the valid termination of the Merger Agreement in accordance with its terms, the Company has agreed to, and to cause its subsidiaries to, use commercially reasonable efforts, upon reasonable advance notice and subject to any prohibition by applicable law, to (i) give Parent and Merger Sub and their respective representatives reasonable access during normal business hours (under the supervision of appropriate personnel and in a manner that does not unreasonably interfere with the normal operations of the business of the Company) to relevant officers, employees, representatives, assets and facilities and to relevant books, contracts, work papers, and records of the Company and its subsidiaries and provide copies of such existing books, contracts, tax returns, work papers, records and other documents and information of the Company, in each case, to the extent reasonably requested by Parent or Merger Sub, (ii) permit Parent and Merger Sub to make such non-invasive inspections as they may reasonably request, (iii) furnish Parent and Merger Sub with such financial and operating data and other information with respect to the business, properties, and personnel of the Company as Parent or Merger Sub may from time to time reasonably request and (iv) use commercially reasonable efforts to facilitate site visits by Parent or any of its representatives at any facility of a third-party contract manufacturer of the Company or any of its subsidiaries, subject to customary exceptions.

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

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

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

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

The Merger Agreement provides for indemnification and exculpation rights with respect to liabilities for acts and omissions occurring prior to or at the Effective Time, as well as related rights to advancement of expenses, in favor of the current and former directors and officers of the Company, who we refer to collectively as the “indemnitees.” Specifically, for a period of six years after the Effective Time (or the later expiration date of the statute of limitations), the provisions of the certificate of incorporation and bylaws of the Company as of the date of the Merger Agreement which relate to indemnification, exculpation and advancement of expenses, will survive the Merger and must not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of an indemnitee.

The Merger Agreement also provides that the Company may purchase prior to the Effective Time, and if the Company does not purchase prior to the Effective Time, the Surviving Corporation will purchase at or after the Effective Time, a tail policy under the current directors’ and officers’ liability insurance policies maintained at such time by the Company, which (i) will be effective until the sixth anniversary of the Closing Date with respect to claims arising from facts or events that existed or occurred prior to or at the Effective Time and (ii) will contain coverage that is at least as protective (in the aggregate) to such directors and officers as the coverage provided by such existing policies.

The Company has agreed to promptly notify Parent of causes of action, claims, litigations, audits, examinations, mediations, actions, suits, arbitrations, proceedings, investigations or other legal proceedings against the Company, its subsidiaries or any of its or their directors or officers relating to the Merger Agreement, the other Transaction Documents or the SLR Financing Agreements to which the Company is a party or the Contemplated Transactions, including by providing Parent with copies of all pleadings, filings and other material documents with respect to such Stockholder Litigation, and has agreed to keep Parent reasonably informed on a reasonably prompt basis with respect to the status of such litigation. The Merger Agreement provides that Parent will have the right to participate in the defense, settlement and prosecution of any such litigation, the Company will consult with Parent regarding the defense, settlement and prosecution of any such litigation, and the Company will not, and will cause its subsidiaries and its and their directors or officers not to, settle or compromise, or agree or commit to settle or compromise, any such litigation, or consent or agree to the entry of any order, judgment, stipulation or decree with respect to any litigation, without the prior written consent of Parent.

The Company and the Board have agreed to take all action within its power and authority necessary to ensure that no “fair price,” “business combination” or “control share acquisition” status or other similar anti-takeover statue or regulation is or may become applicable to any of the Contemplated Transactions. The parties have agreed to take all such actions as are within their respective power and authority as are necessary to ensure that the Contemplated Transactions may be consummated as promptly as reasonably practicable on the terms of the Merger Agreement and to otherwise minimize the effects of any “fair price,” “business combination” or “control share acquisition” statute or other similar statute or regulation that is or becomes applicable to any of the Contemplated Transactions.

Prior to the Effective Time, the Board will take all necessary and appropriate action to approve, for purposes of Section 16(b) of the Exchange Act, the disposition by the Company’s directors and officers of Shares, Stock Options, RSU Awards, PSU Awards and any other equity securities in the Contemplated Transactions.

The Merger Agreement provides that Parent and Topco will identify to the Company any potential Rollover Holder (as defined in the Merger Agreement) who Parent and Topco desire to enter into discussions with respect to entering into a stockholder rollover agreement (each, an “Additional Rollover Agreement”) (and that does enter into any Additional Rollover Agreement) and will consult with the Company in respect of such communications prior to reaching out to such potential Rollover Holder, Parent and Topco will thereafter use commercially reasonable efforts to keep the Company reasonably informed of the status and terms of any Additional Rollover Agreements on a reasonably prompt basis, including in respect of the number of Shares, RSU Awards, PSU Awards or Stock Options, as applicable, intended to be subject to any Additional Rollover Agreements. Parent will, and will cause its Affiliates to, provide to the Company a reasonable opportunity to review and comment on the form of any Additional Rollover Agreement prior to an initial draft thereof being provided to, and prior to entry into any Additional Rollover Agreement with, any potential Rollover Stockholder, and Parent will, and will cause its affiliates to, consider in good faith any such comments, and will keep the Company reasonably informed of such negotiations.

The Merger Agreement provides that the Company acknowledges and agrees that Parent and Topco may seek, prior to the Closing, to agree with one or more holders of Shares that are reasonably acceptable to Parent and SLR that, immediately prior to the Effective Time, each such holder will subscribe for Topco Series A Preferred Units with the same economic rights described in the SLR Rollover Agreement as the Topco Series A Preferred Units issued to Perceptive and SLR and at a price per Topco Series A Preferred Unit equal to the Per Share Merger Consideration (the “Additional Subscriptions”) and in, furtherance of the foregoing, the Company will provide Parent and Topco with a list of such potential holders no later than five business days following the date that the Company first disseminates the proxy statement to the Company’s stockholders; provided that (a) each such holder will be an “accredited investor” (as such term is defined in Regulation D promulgated under the Securities Act), (b) the aggregate dollar value (such amount, the “Total Additional Subscription Amount”) of all Additional Subscriptions (and Topco Series A Preferred Units to be issued in connection with the Additional Subscriptions) will not exceed $3.5 million (the “Additional Subscription Cap”), and (c) all cash paid to Topco in connection with the Additional Subscriptions will thereafter be contributed from Topco to Parent; provided, further, in the event that the Additional Subscription Cap exceeds the Total Additional Subscription Amount (such excess amount, the “Additional Subscription Balance”), Perceptive will have the right to subscribe for an additional number of Topco Series A Preferred Units immediately prior to the Effective Time with an aggregate value equal to the Additional Subscription Balance. The Company agrees that, to the extent that Parent has identified to the Company in writing, at least 10 days prior to the Closing, the holders of Shares with whom it intends to seek participation in the Additional Subscriptions as described in this paragraph, the Company will use commercially reasonable efforts to permit Topco and Parent to contact such holders directly, and reasonably facilitate discussions between such holders and Parent, Topco and SLR with respect thereto.

On the Closing Date, provided, that the SLR Rollover Contribution will occur substantially concurrently with the Closing pursuant to and in accordance with the provisions of the SLR Rollover Agreement, and at the Closing (but immediately following both (a) the consummation of the Merger and (b) the making of the cash payments by Parent to the Surviving Corporation pursuant to the Merger Agreement), the Company will (i) repay all term B loans in full pursuant to the terms of the SLR Loan Agreement as amended by the Eighth Amendment, and (ii) subject to the certain caps, to the extent applicable, pay all expenses of the lenders (including, for the avoidance of doubt, costs and expenses (including reasonable attorneys’ fees, disbursements and expenses) of SLR (subject to certain caps, to the extent applicable) in connection with the Merger Agreement, the SLR Loan Agreement, the Eighth Amendment, the other loan documents, the other Transaction Documents and the Contemplated Transactions), in each case that are unpaid and outstanding as of the Closing Date and in accordance with the terms of the loan documents (collectively, the “Credit Agreement Closing Payments”).

The obligations of each party to effect the Merger are subject to the satisfaction or waiver (to the extent permitted by applicable law) at or prior to the Effective Time of each of the following conditions:

In addition, the obligations of Parent and Merger Sub to effect the Merger are subject to the satisfaction or waiver (to the extent permitted by applicable law) by Parent and Merger Sub at or prior to the Effective Time of each of the following conditions:

In addition, the obligations of the Company to effect the Merger are subject to the satisfaction or waiver (to the extent permitted by applicable law) by the Company at or prior to the Effective Time of each of the following conditions:

The Merger Agreement may be terminated, and the Merger may be abandoned, under any of the following circumstances:

If the Merger Agreement is validly terminated, it will be void and of no effect and there will be no liability on the part of any party (or any of its representatives), except that (i) certain specified provisions of the Merger Agreement, as well as the confidentiality agreement between Parent and the Company, will survive such termination, and (ii) except in a circumstance where the Termination Fee is paid, no such termination will relieve any person of any liability for damages resulting from fraud or any material breach of the Merger Agreement occurring prior to such termination that is a consequence of an act or omission intentionally undertaken by the breaching party with the knowledge that such act or omission would result in a material breach of the Merger Agreement prior to such termination. In no event will the Company Related Parties, on the one hand, or the Parent Related Parties, on the other hand, have any monetary liability or obligation under the Merger Agreement in the event the Merger Agreement is validly terminated for an amount greater than $1.0 million, plus any enforcement expenses (the “Liability Limitation”).

The Company has agreed to pay Parent the Termination Fee of $1.0 million in cash in the event that:

Any payment of the Termination Fee required to be made (1) pursuant to a Superior Proposal Termination will be paid substantially concurrently with such termination (and as a condition to termination in the event of a termination by the Company), (2) pursuant to a Change in Recommendation Termination will be paid no later than two (2) business days after such termination and (3) pursuant to termination in accordance with the third (3rd) bullet point above will be paid to Parent upon the earlier of (x) the consummation of any Acquisition Proposal or (y) the entry into an Alternative Acquisition Agreement. The Company will not be required to pay the Termination Fee more than once.

Other than Parent’s injunctive, specific performance and equitable relief rights, (i) Parent’s right to terminate the Merger Agreement and receive payment of the Termination Fee (together with any enforcement expenses), from the Company will be the sole and exclusive remedy (whether at law, in equity, in contract, in tort, or otherwise) of Topco, Parent, Merger Sub, Perceptive or any other Parent Related Party (as defined in the Merger Agreement) against the Company and the Company Related Parties for any and all losses, liabilities and damages that may be suffered based upon, resulting from, arising out of, or relating to the Merger Agreement, the other Transaction Documents and the Contemplated Transactions and (ii) other than the payment of the Termination Fee to Parent by the Company if and when due (as well as any enforcement expenses owed), no Company Related Party (as defined in the Merger Agreement) will have any further liability or obligation relating to or arising out of the Merger Agreement, the other Transaction Documents or the Contemplated Transactions.

If the Merger Agreement is validly terminated by the Company, (i) the Company’s right to specific performance pursuant to the Merger Agreement and the Company’s rights to seek monetary damages subject to the Liability Limitation will be the sole and exclusive remedies (whether at law, in equity, in contract, in tort, or otherwise) of the Company or any other Company Related Parties against Topco, Parent, Merger Sub, Perceptive or any other Parent Related Parties in respect of the Merger Agreement, the other Transaction Documents and SLR Financing Agreements to which Topco, Parent, Merger Sub or Perceptive is a party and the Contemplated Transactions, including the breach of any representation, warranty, covenant, or agreement in the Merger Agreement or any other Transaction Document and SLR Financing Agreement to which Topco, Parent, Merger Sub or Perceptive is a party or any representation or warranty in any certificate delivered pursuant to the Merger Agreement or any other Transaction Document and SLR Financing Agreement to which Topco, Parent, Merger Sub or Perceptive is a party, the termination of the Merger Agreement or any other Transaction Document and SLR Financing Agreement to which Topco, Parent, Merger Sub or Perceptive is a party, or the failure to consummate the Contemplated Transactions, and (ii) subject to the Company’s right to specific performance to enforce any of the surviving provisions of the Merger Agreement, including to enforce the Damages Commitment (as defined in the Equity Commitment Letter), none of the Parent Related Parties will have any further liability or obligation to any of the Company Related Parties or any other person relating to or arising out of the Merger Agreement, the other Transaction Documents and SLR Financing Agreements to which Topco, Parent, Merger Sub or Perceptive is a party or the Contemplated Transactions, including the breach of any representation, warranty, covenant, or agreement in the Merger Agreement or any other Transaction Document and SLR Financing Agreement to which Topco, Parent, Merger Sub or Perceptive is a party or any representation or warranty in any certificate delivered pursuant to the Merger Agreement or any other Transaction Document and SLR Financing Agreements to which Topco, Parent, Merger Sub or Perceptive is a party, the termination of the Merger Agreement or any other Transaction Document and SLR Financing Agreement to which Topco, Parent, Merger Sub or Perceptive is a party, or failure to consummate the Contemplated Transactions, except that, in each case, Perceptive will remain obligated, and the Company may be entitled to remedies, with respect to monetary damages subject to the Liability Limitation.

After termination of the Merger Agreement, (i) the termination provisions of the Merger Agreement will not relieve, Topco, Parent or Merger Sub from any liability for any fraud or intentional breach of the Merger Agreement; provided that under no circumstances will the collective monetary damages payable by the Parent Related Parties, including for any intentional breach or fraud under the Merger Agreement, or any of the other Transaction Documents or the SLR Financing Agreements to which it is a party, or any of the Contemplated Transactions, exceed an amount equal to the Liability Limitation, (ii) in no event will the Company have any liability, including for fraud or intentional breach of the Merger Agreement, following the payment of the Termination Fee (as well as any enforcement expenses owed), (iii) in no event will the Company be required to pay both damages under the Merger Agreement and the Termination Fee and (iv) solely if and to the extent the Termination Fee is not owing or payable the termination provisions of the Merger Agreement will not relieve the Company from any liability for any fraud or intentional breach of the Merger Agreement; provided that under no circumstances will the collective monetary damages payable by the Company Related Parties, including for any intentional breach or fraud under the Merger Agreement, any of the other Transaction Documents or SLR Financing Agreement to which it is a party, or any of the Contemplated Transactions, exceed an amount equal to the Liability Limitation.

In no event will the Company or any other Company Related Party, on the one hand, or Topco, Parent, Merger Sub, Perceptive or any other Parent Related Party, on the other hand, be entitled to recover any monetary recovery or monetary award or damages (including consequential, special, indirect or punitive damages) against any Parent Related Party or Company Related Party, respectively, with respect to the Merger Agreement, any other Transaction Document or SLR Financing Agreement to which it is a party or the Contemplated Transactions (including any breach by any Parent Related Party or Company Related Party), the termination of the Merger Agreement, any other Transaction Document or SLR Financing Agreement to which it is a party, the failure to consummate the Contemplated Transactions thereby or any claims, proceedings or actions under applicable laws arising out of any such breach, termination or failure (including in the event of an intentional breach or fraud), other than to the extent expressly provided for in the Merger Agreement and in an amount not to exceed the Liability Limitation. Under no circumstances will the Company be permitted or entitled to receive from Parent both a grant of specific performance in accordance with the Merger Agreement that results in the occurrence of the Closing and the funding of the Equity Financing and payment of the Merger Consideration, on the one hand, and be awarded any monetary damages, on the other hand, and (B) while Parent may pursue a grant of specific performance under the Merger Agreement prior to termination of the Merger Agreement and/or the payment of the Termination Fee or damages following the termination of the Merger Agreement, if the Termination Fee is not payable pursuant to the terms of the Merger Agreement, under no circumstances will Topco, Parent or Merger Sub be permitted or entitled to receive from the Company (1) both a grant of specific performance in accordance with the Merger Agreement that results in the occurrence of the Closing, on the one hand, and payment of monetary damages or all or a portion of the Termination Fee, on the other hand or (2) both payment of any monetary damages, on the one hand, and payment of the Termination Fee, on the other hand.

Parent, Merger Sub and the Company have agreed that, in the event of any breach of the Merger Agreement, irreparable harm would occur that monetary damages could not make whole. Accordingly, each party will (i) be entitled, in addition to any other remedy to which it may be entitled at law or in equity, to compel specific performance to prevent or restrain breaches or threatened breaches of the Merger Agreement in any action without the posting of a bond or undertaking and (ii) waive, in any action for specific performance, the defense of adequacy of a remedy at law and any other objections to specific performance of the Merger Agreement. Notwithstanding the foregoing, each party may pursue any other remedy available to it at law or in equity, including monetary damages; provided, that under no circumstances will a party be permitted or entitled to receive both (a) a grant of specific performance that results in the occurrence of the Closing and (b) monetary damages (including the Termination Fee).

Except in limited circumstances expressly specified in the Merger Agreement, each party will bear its own expenses in connection with the Merger Agreement and Contemplated Transactions; provided that, solely in the event that the Closing occurs, the Surviving Corporation will pay all costs and expenses (including reasonable fees, disbursements and expenses of legal or financial advisors or agents serving in a similar capacity) incurred by Perceptive, Topco, Parent, Merger Sub and SLR, in connection with the Merger Agreement, the SLR Financing Agreements, the other Transaction Documents, the Contemplated Transactions and the transactions contemplated by the other SLR Financing Agreements, in each case that are unpaid and outstanding as of the Closing Date (collectively, the “Counterparty Transaction Expenses”); provided, however, that, subject to the terms of the Loan Documents, (a) any Counterparty Transaction Expenses that constitute legal fees, disbursements and expenses payable by the Company pursuant to the immediately preceding proviso, and (b) any payment obligations in respect of the Company’s or any of its subsidiaries’ legal fees, disbursements and expenses or financial advisor fees, disbursements and expenses incurred in connection with the Contemplated Transactions and the SLR Financing Agreements, in the case of each of clauses (a) and (b) excluding any legal fees, disbursements and expenses relating to causes of action, claims, litigations, audits, examinations, mediations, actions, suits, arbitrations, proceedings, investigations or other legal proceedings brought by stockholders of the Company in connection with the Contemplated Transactions and the SLR Financing Agreements, will not exceed $10.0 million in the aggregate (such aggregate amount, the “Reimbursable Expense Cap” and such legal fees, disbursements and expenses described in the immediately preceding clauses (a) and (b), collectively, “Transaction Advisor Costs”) and, to the extent such aggregate Transaction Advisor Costs exceed the Reimbursable Expense Cap, (i) Perceptive, Topco, Parent and Merger Sub will, collectively, be reimbursed in respect of their Transaction Advisor Costs for an amount not to exceed $1.5 million (the “Parent Reimbursement Cap”), (ii) SLR will be reimbursed in respect of its Transaction Advisor Costs for an amount not to exceed $3.5 million (the “SLR Reimbursement Cap”), (iii) the Company will be reimbursed in respect of its Transaction Advisor Costs for an amount not to exceed $4.5 million (the “Company Reimbursement Cap” and together with the Parent Reimbursement Cap and the SLR Reimbursement Cap, the “Sub Caps”), and (iv) the Surviving Corporation will pay any remaining Transaction Advisor Costs using cash on its balance sheet following the Effective Time.

The Merger Agreement is governed by and will be construed in accordance with, and all disputes arising out of or in connection with the Merger Agreement or the Contemplated Transactions will be resolved under, laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.

This proxy statement and documents referred to in this proxy statement contain “forward-looking statements.” All statements other than statements of historical fact are statements that could be deemed forward-looking statements, including all statements regarding the intent, belief or current expectation of Vapotherm and members of our senior management team and can typically be identified by words such as “believe,” “expect,” “estimate,” “predict,” “target,” “potential,” “likely,” “continue,” “ongoing,” “could,” “should,” “intend,” “may,” “might,” “plan,” “seek,” “anticipate,” “project” or the negative of these terms or other similar expressions, although not all forward-looking statements contain these words, or the use of future dates. Forward-looking statements include, without limitation, statements regarding the proposed transaction and the anticipated timing or completion thereof; whether the Vapotherm stockholders will vote in favor of the Merger Agreement and the other proposals described herein; the timing and receipt of required regulatory filings and other approvals relating to the transaction; the ability to complete the transaction considering the various closing conditions; the anticipated effects, benefits and detriments of the proposed transaction; the impact of the proposed transaction on Vapotherm’s executive officers and directors; the anticipated effects if the Merger is not completed, including the impact of the termination fees provided for in the Merger Agreement; financial projections, prospective performance and future plans; the Surviving Corporation’s plans after completion of the Merger; and the accuracy of any assumptions underlying any of the foregoing.

Investors are cautioned that any such forward-looking statements are not guarantees of future performance and involve risks and uncertainties and are cautioned not to place undue reliance on these forward-looking statements. Actual results may differ materially from those currently anticipated due to a number of risks and uncertainties. Risks and uncertainties that could cause the actual results to differ from expectations contemplated by forward-looking statements include:

All forward-looking statements are based on information currently available to us and we assume no obligation to update any forward-looking statements, whether as a result of new information, future developments or otherwise, except as may be required by applicable law. The information set forth in this proxy statement speaks only as of the date hereof.

Consequently, all of the forward-looking statements that we make in this proxy statement are qualified by the information contained herein, including: (i) the information contained under this “Special Note Regarding Forward-Looking Statements”; and (ii) the information under the “Risk Factors” sections and information in our consolidated financial statements and notes thereto included in our Annual Report on Form 10-K for the year ended December 31, 2023, as amended, which is attached as Annex H to this proxy statement, and our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2024, which is attached as Annex I to this proxy statement and in subsequent reports on Form 10-K, Form 10-Q or Form 8-K filed with the SEC from time to time and available at www.sec.gov.

No assurance can be given that these are all of the factors that could cause actual results to vary materially from the forward-looking statements. Our stockholders are advised to consult any future disclosures that we make on related subjects as may be detailed in our other filings made from time to time with the SEC.

The enclosed proxy is solicited on behalf of the Board for use at the Special Meeting.

We will hold the Special Meeting on , 2024, at , Eastern Time, at our principal executive office located at 100 Domain Drive, Exeter, New Hampshire 03833.

At the Special Meeting, we will ask our stockholders to consider and vote on the following:

Our stockholders must approve the Merger Agreement Proposal in order for the Merger to be consummated. If our stockholders fail to approve the Merger Agreement Proposal, the Merger will not be consummated. A copy of the Merger Agreement is attached as Annex A to this proxy statement, which we urge you to read carefully in its entirety.

Only stockholders of record as of the close of business on the Record Date are entitled to notice of the Special Meeting and to vote at the Special Meeting. A list of stockholders entitled to vote at the Special Meeting will be available at our principal executive offices located at 100 Domain Drive, Exeter, NH 03833, during regular business hours for a period of no less than 10 days before the Special Meeting.

A majority of the outstanding Shares of our Common Stock entitled to vote at the Special Meeting, present in person or by proxy, will constitute a quorum for all purposes at the Special Meeting. On the Record Date, there were Shares of our Common Stock outstanding and entitled to vote at the Special Meeting, meaning that Shares must be represented in person or by proxy at the Special Meeting to have a quorum.

Our Bylaws provide that whether or not a quorum is present, the chairperson of a meeting of our stockholders or the Board may adjourn the meeting, from time to time, for any reasonable purpose and to any other time and other place, if any, at which a meeting of stockholders of the Company may be held. In the event that a quorum is not present at the Special Meeting, it is expected that the Special Meeting will be adjourned to solicit additional votes.

Each record holder of a Share is entitled to one vote for each Share owned of record as of the close of business on the Record Date.

The Merger cannot be consummated unless the Merger Agreement Proposal is approved by the affirmative vote of the holders of a majority of the Shares of our Common Stock outstanding at the close of business on the Record Date. For the Merger Agreement Proposal, you may vote “FOR,” “AGAINST” or “ABSTAIN.”

For more information, see “Special Factors—Stockholder Rollover Agreements” beginning on page 73 and “Special Factors—Voting and Support Agreements” beginning on page 74.

The approval, on an advisory, non-binding basis, of the Compensation Proposal, requires the affirmative vote of a majority of the votes cast at the Special Meeting on the proposal. The approval of the Compensation Proposal is on a non-binding, advisory basis and is not a condition to the completion of the Merger. For the Compensation Proposal, you may vote “FOR,” “AGAINST” or “ABSTAIN.”

The approval of the Adjournment Proposal to adjourn the Special Meeting, if necessary or appropriate, requires the affirmative vote of a majority of the votes cast at the Special Meeting on the proposal. For the Adjournment Proposal, you may vote “FOR,” “AGAINST” or “ABSTAIN.”

An abstention represents a stockholder’s affirmative choice to decline to vote on a proposal. If a stockholder abstains from voting, that abstention will be counted for purposes of determining whether a quorum is present at the Special Meeting and will have the same effect as if the stockholder voted “AGAINST” the Merger Agreement Proposal. Since under our Bylaws, an abstention is not considered a vote on a matter submitted to a vote of stockholders, abstentions will have no effect on the outcome of the Compensation Proposal or the outcome of the Adjournment Proposal.

A “broker non-vote” results when banks, brokers and other nominees return a valid proxy but do not vote on a particular proposal because they do not have discretionary authority to vote on the matter and have not received specific voting instructions from the beneficial owner of such Shares. Because banks, brokers and other nominees do not have discretionary voting authority with respect to the Merger Agreement Proposal, the Compensation Proposal or the Adjournment Proposal, if a beneficial owner of Shares held in street name does not give voting instructions to the bank, broker or other nominee with respect to any of the proposals, then those Shares may not be voted on behalf of such beneficial owner for any proposal, will not be deemed present or represented by proxy at the Special Meeting and will not be counted for purposes of determining whether a quorum is present at the Special Meeting. However, if a beneficial owner of Shares held in street name gives voting instructions to the bank, broker or other nominee with respect to at least one of the proposals, but gives no instruction as to one or more of the other proposals, then those Shares will be deemed present at the Special Meeting for purposes of establishing a quorum at the Special Meeting, will be voted as instructed with respect to any proposal as to which instructions were given and will not be voted with respect to any other proposal. Failure to instruct your bank, broker or other nominee on how to vote your Shares will have the same effect as a vote “AGAINST” the Merger Agreement Proposal and will have no effect on the outcome of the Compensation Proposal or the outcome of the Adjournment Proposal.

Our directors and executive officers have informed us that, as of the date of this proxy statement, they intend to vote all of their Shares owned directly by them “FOR” the Merger Agreement Proposal, “FOR” the Compensation Proposal and “FOR” the Adjournment Proposal.

As of the close of business on the Record Date, our directors and executive officers beneficially owned and were entitled to vote, in the aggregate, Shares entitled to vote at the Special Meeting, or collectively approximately % of the total voting power entitled to vote at the Special Meeting.

Of our directors and executive officers, Joseph Army, Anthony Arnerich and John Landry, who beneficially owned and were entitled to vote an aggregate of 11.9% of our outstanding Shares, entered into Stockholder Rollover Agreements pursuant to which each such director or officer agreed, among other things, to vote all of the Rollover Shares held by such director or officer (a) in favor of the adoption and approval of the Merger Agreement and the Merger, (b) against any action, proposal, agreement or transaction that would reasonably be expected to change in any manner the voting rights of any class of shares of the Company or materially impede, interfere with, delay, postpone, frustrate, discourage or adversely affect the timely consummation of the Merger and the other transactions contemplated by the Merger Agreement, (c) against any action, proposal, transaction or agreement that would result in (i) a breach of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of such director or officer contained in such Stockholder Rollover Agreement, or (ii) any of the conditions to the consummation of the Merger set forth in the Merger Agreement not being fulfilled, and (d) in favor of any adjournment, recess, delay or postponement of the meeting of stockholders of the Company called to vote to adopt and approve the Merger Agreement and the Merger as may be reasonably requested by the Board or the Special Committee in order to seek or obtain approval of the adoption of the Merger Agreement or any action, proposal, transaction or agreement necessary to consummate the Merger.

As of the date of the filing of this proxy statement, none of Parent, Merger Sub nor any of their respective affiliates (as defined under Rule 405 of the Securities Act) beneficially owns any Shares.

If, at the close of business on the Record Date, your Shares are registered in your name with our transfer agent, Equiniti Trust Company, LLC, you may cause your Shares to be voted by returning a signed and dated proxy card in the accompanying prepaid envelope, or you may vote in person at the Special Meeting. Additionally, you may grant a proxy electronically over the Internet or by telephone (using the instructions provided in the enclosed proxy card). You must have the enclosed proxy card available, and follow the instructions on the proxy card, in order to grant a proxy electronically over the Internet or by telephone. Based on your proxy card or internet and telephone proxies, the proxy holders will vote your Shares according to your directions.

If you plan to attend the Special Meeting and wish to vote, you will need to enter the 16-digit Control Number found next to the label “Control Number” on your proxy card or voting instruction form, or in the email sending you this proxy statement. If you attend the Special Meeting, and vote, your vote will revoke any previously submitted proxy. If your Shares are registered in your name, you are encouraged to vote by proxy even if you plan to attend the Special Meeting.

Voting instructions are included on your proxy card. All Shares represented by properly signed and dated proxies received in time for the Special Meeting will be voted at the Special Meeting in accordance with the instructions of the stockholder. Properly signed and dated proxies that do not contain voting instructions will be voted: (i) “FOR” the Merger Agreement Proposal; (ii) “FOR” the Compensation Proposal and (iii) “FOR” the Adjournment Proposal.

If, at the close of business on the Record Date, your Shares are held in “street name” through a bank, broker or other nominee, you may vote through your bank, broker or other nominee by completing and returning the voting instruction form provided by your bank, broker or other nominee or attending the Special Meeting and voting with a “legal proxy” from your bank, broker or other nominee. If such a service is provided, you may vote over the Internet or telephone through your bank, broker or other nominee by following the instructions on the voting instruction form provided by your bank, broker or other nominee. If you do not return your bank’s, broker’s or other nominee’s voting instruction form, do not vote via the Internet or telephone through your bank, broker or other nominee, if possible, or do not attend the Special Meeting and vote with a legal proxy from your bank, broker or other nominee, it will have the same effect as if you voted “AGAINST” the Merger Agreement Proposal, but will have no effect on the outcome of the Compensation Proposal or the outcome of the Adjournment Proposal.

If you are a stockholder of record entitled to vote at the Special Meeting, you may revoke or change your proxy in any one of the following ways:

At the time the Special Meeting occurs, the most current proxy card or telephone or internet proxy is the one that is counted.

Beneficial Owner: Shares Registered in the Name of Bank, Broker or Other Nominee

If your Shares are held by your bank, broker or other nominee, you should follow the instructions provided by your bank, broker or other nominee.

Although it is not currently expected, the Special Meeting may be adjourned or postponed to a later date or dates, including for the purpose of soliciting additional proxies, if there are insufficient votes at the time of the Special Meeting to approve the Merger Agreement Proposal or if a quorum is not present at the Special Meeting. Other than an announcement to be made at the Special Meeting of the time, date and place of an adjourned meeting, an adjournment generally may be made without notice. Any adjournment or postponement of the Special Meeting for the purpose of soliciting additional proxies will allow our stockholders who have already sent in their proxies to revoke them at any time prior to their use at the Special Meeting as adjourned or postponed.

After careful consideration, the Board, acting on behalf of Vapotherm and upon the unanimous recommendation of the Special Committee, unanimously recommends that our stockholders vote:

You should read “Special Factors— Purpose and Reasons of Vapotherm for the Merger; Recommendation of the Board and Special Committee; Fairness of the Merger” beginning on page 34 for a discussion of the factors that the Special Committee and the Board considered in determining to recommend the approval of the Merger Agreement Proposal.

The expense of soliciting proxies will be borne by Vapotherm, in addition to the expense of printing and mailing materials related to the Special Meeting. Vapotherm has retained Morrow Sodali LLC, a proxy solicitor, to solicit proxies in connection with the Special Meeting at a cost of approximately $20,000 plus expenses.

Vapotherm has agreed to indemnify Morrow Sodali LLC against certain losses arising out of its provisions of these services on our behalf. Vapotherm may reimburse banks, brokers and other nominees representing beneficial owners of Shares for their expenses in forwarding soliciting materials to such beneficial owners. Proxies also may be solicited by our directors, officers and employees, personally or by telephone, email, fax, over the Internet or other means of communication. No additional compensation will be paid for such services.

Assuming timely satisfaction of necessary closing conditions, including obtaining the approval of the Merger Agreement Proposal, Vapotherm is currently targeting to consummate the Merger in the second half of 2024. Since the Merger is subject to a number of conditions, the exact timing of the Merger cannot be determined at this time.

If the Merger is completed, the Shares will no longer trade on the OTCQX and will be deregistered under the Exchange Act, and Shares will no longer be publicly traded. As such, Vapotherm will no longer file periodic reports with the SEC.

The SEC has adopted rules to permit companies and intermediaries (such as brokers) to satisfy the delivery requirements for proxy materials with respect to two or more stockholders sharing the same address by delivering a single copy of this proxy statement or other proxy materials addressed to those stockholders. This process, which is commonly referred to as “householding,” potentially results in a reduced usage of natural resources and cost savings for companies. Stockholders who participate in householding will continue to be able to access and receive separate proxy cards.

A number of brokers with account holders who are our stockholders will be “householding” our proxy materials. A single copy of this proxy statement or other proxy materials will be delivered to multiple stockholders sharing an address unless contrary instructions have been received from one or more of the affected stockholders. Once you have received notice from your broker that they will be “householding” communications to your address, “householding” will continue until you are notified otherwise or until you revoke your consent. Any stockholder at a shared address to which a single copy of this proxy statement was delivered and who wishes to receive a separate copy of the documents or can request a copy of such documents or notice by sending a written request to Vapotherm’s Senior Vice President, General Counsel and Secretary at Vapotherm’s corporate headquarters at 100 Domain Drive, Exeter, NH 03833 or via telephone at (603) 658-0011, and Vapotherm will promptly deliver the requested documents or notice. Also, if, at any time, you no longer wish to participate in “householding” and would prefer to receive a separate copy of this proxy statement or other proxy materials in the future, please notify your broker or direct your written request to Vapotherm’s Senior Vice President, General Counsel and Secretary at Vapotherm’s corporate headquarters at 100 Domain Drive, Exeter, NH 03833 or via telephone at (603) 658-0011. Our stockholders who currently receive multiple copies of this proxy statement at their address and would like to request “householding” of their communications should contact their brokers.

Important Notice Regarding the Availability of Proxy Materials for the Stockholder Meeting to be Held on , 2024

This proxy statement is available on the investor relations section of our website at www.vapotherm.com.

We are asking you to approve the Merger Agreement Proposal. You should carefully read this proxy statement in its entirety for more detailed information concerning the Merger Agreement and the Merger. In particular, you should read in its entirety the Merger Agreement, which is attached as Annex A to this proxy statement. In addition, see information under “Special Factors,” beginning on page 26, and “The Merger Agreement,” beginning on page 85.

Certain stockholders, holding Rollover Shares equal to, in the aggregate, 8.6% of our outstanding Shares, entered into Stockholder Rollover Agreements pursuant to which each such stockholder agreed, among other things, to vote all of the Rollover Shares held by such stockholder (a) in favor of the Merger Agreement Proposal, (b) against any action, proposal, agreement or transaction (including any Acquisition Proposal) that would reasonably be expected to change in any manner the voting rights of any class of shares of the Company or materially impede, interfere with, delay, postpone, frustrate, discourage or adversely affect the timely consummation of the Merger and the other transactions contemplated by the Merger Agreement, (c) against any action, proposal, transaction or agreement that would result in (i) a breach of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of such stockholder contained in such Stockholder Rollover Agreement, or (ii) any of the conditions to the consummation of the Merger set forth in the Merger Agreement not being fulfilled, and (d) in favor of any adjournment, recess, delay or postponement of the meeting of stockholders of the Company called to vote to adopt and approve the Merger Agreement and the Merger as may be reasonably requested by the Board or the Special Committee in order to seek or obtain approval of the adoption of the Merger Agreement or any action, proposal, transaction or agreement necessary to consummate the Merger. In addition, the following stockholders, holding an aggregate of 24.6% of our outstanding Shares, entered into Voting and Support Agreements pursuant to which, and upon the terms and subject to the conditions thereof, among other things, each such stockholder agreed to vote all of the shares of Company Common Stock beneficially owned by such stockholder (A) in favor of the adoption and approval of the Merger Agreement and the Merger, (B) against any action, proposal, agreement or transaction that would reasonably be expected to change in any manner the voting rights of any class of shares of the Company or materially impede, interfere with, delay, postpone, frustrate, discourage or adversely affect the timely consummation of the Merger and the other transactions contemplated by the Merger Agreement, (C) against any action, proposal, transaction or agreement that would result in (1) a breach of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of such stockholder contained in such Voting and Support Agreement, or (2) any of the conditions to the consummation of the Merger set forth in the Merger Agreement not being fulfilled, and (D) in favor of any adjournment, recess, delay or postponement of the meeting of stockholders of the Company called to vote to adopt and approve the Merger Agreement and the Merger as may be reasonably requested by the Board or the Special Committee in order to seek or obtain approval of the adoption of the Merger Agreement or any action, proposal, transaction or agreement necessary to consummate the Merger: Crow’s Nest Holdings LP, Kent Lake Capital LLC, Guines LLC and certain entities associated therewith, including Roystone Capital Management LP and Roystone Capital Holdings, LLC, and The Irrevocable Larson Family Investment Trust. Collectively, these stockholders subject to voting commitments in either a Stockholder Rollover Agreement or a Voting and Support Agreement hold an aggregate of 33.2% of our outstanding Shares.

For more information, see “Special Factors—Stockholder Rollover Agreements” and “Special Factors—Voting and Support Agreements.”

If the Merger is consummated, our stockholders and beneficial owners of Shares who continuously are the record holders or beneficial owners, as the case may be, of such Shares through the Effective Time, whose Shares are not voted in favor of the Merger Agreement Proposal, who properly demand appraisal of such Shares in accordance with Section 262 of the DGCL (“Section 262”), and who otherwise comply with the statutory requirements of Section 262 will be entitled to seek an appraisal by the Delaware Court of Chancery of the “fair value” of their Shares. The amount determined to be fair value by the court will be determined as of the Effective Time and could be more than, the same as or less than the Per Share Merger Consideration. Voting “AGAINST” or failing to vote “FOR” the Merger Agreement Proposal by itself does not constitute a demand for appraisal within the meaning of Section 262.

This section is intended as a brief summary of the material provisions of Delaware law pertaining to appraisal rights. The following discussion, however, is not a complete summary of the law pertaining to appraisal rights under the DGCL and is qualified in its entirety by the full text of Section 262 that is accessible at the following publicly available website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262 and is attached as Annex G to this proxy statement and incorporated by reference herein. Due to the complexity of the appraisal process, our stockholders and beneficial owners of Shares who wish to seek appraisal of their Shares or who wish to preserve their rights to do so should review the information in this proxy statement under “Special Factors—Appraisal Rights” and the applicable provisions of Section 262 carefully and are encouraged to seek the advice of legal counsel and financial advisors with respect to the exercise of appraisal rights since failure to timely and fully comply with the procedures set forth therein will result in the loss of such rights.

Generally, to exercise appraisal rights, our stockholders and beneficial owners of Shares must: (i) submit a proper written demand for appraisal of such Shares to Vapotherm before the vote by our stockholders is taken on the Merger Agreement Proposal at the Special Meeting; (ii) not submit a proxy or otherwise vote such Shares (or cause such Shares to be voted) in favor of the Merger Agreement Proposal; (iii) continue to be the record holders or beneficial owners, as the case may be, of such Shares through the Effective Time; and (iv) strictly comply with all other procedures and requirements for exercising appraisal rights under Section 262. Such of our stockholders and beneficial owners of Shares that adhere to the foregoing procedures will be entitled to have their Shares appraised by the Delaware Court of Chancery and receive payment in cash of the “fair value” of such Shares (as determined by the Delaware Court of Chancery, exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with interest, if any, to be paid upon the amount determined to be the fair value) as of the completion of the Merger instead of the Per Share Merger Consideration in respect to each such Share.

Approval of Merger Agreement Proposal requires the affirmative vote of the holders of a majority of the Shares of our Common Stock outstanding at the close of business on the Record Date.

The Board unanimously recommends that our stockholders vote “FOR” approval of the Merger Agreement Proposal.

Under Section 14A of the Exchange Act and the applicable SEC rules issued thereunder, Vapotherm is required to submit a proposal to our stockholders to approve, on a non-binding, advisory basis, the compensation that may be paid or become payable to Vapotherm’s named executive officers that is based on or otherwise relates to the Merger Agreement and the transactions contemplated by the Merger Agreement. Our named executive officers are Joseph Army, John Landry, Brian Lawrence and our former officer, Gregory Ramade. Compensation that may be paid or become payable to these named executive officers that is based on or otherwise relates to the Merger Agreement and the transactions contemplated by the Merger Agreement is summarized under “Special Factors—Interests of Vapotherm’s Executive Officers and Directors in the Merger—Golden Parachute Compensation.”

The Board encourages you to review carefully the named executive officer merger-related compensation information disclosed in this proxy statement.

We believe that the payments and/or benefits that may be received pursuant to compensation arrangements for our named executive officers in connection with the Merger, as described under “Special Factors—Interests of Vapotherm’s Executive Officers and Directors in the Merger—Golden Parachute Compensation,” are reasonable and demonstrate that our executive compensation program was designed appropriately and structured to ensure the retention of talented executive officers and a strong alignment with the long-term interests of our stockholders.

This vote is not intended to address any specific item of compensation, but rather the overall compensation that may become payable to our named executive officers in connection with the Merger. In addition, this vote is separate and independent from the vote of our stockholders to approve the Merger Agreement Proposal.

“RESOLVED, that our stockholders approve, on a non-binding advisory basis, the compensation that will or may become payable to Vapotherm’s named executive officers that is based on or otherwise relates to the Merger as disclosed pursuant to Item 402(t) of Regulation S-K in this proxy statement under “Special Factors—Interests of Vapotherm’s Executive Officers and Directors in the Merger—Golden Parachute Compensation.”

The approval of the Compensation Proposal is on a non-binding, advisory basis and is not a condition to the completion of the Merger. The vote on this Compensation Proposal is a vote separate and apart from the vote on the Merger Agreement Proposal. Accordingly, you may vote to approve the Merger Agreement Proposal and vote not to approve this Compensation Proposal and vice versa.

Because the vote on the Compensation Proposal is advisory only, it will not be binding on Vapotherm. Accordingly, if the Merger Agreement Proposal is approved and the Merger is completed, the compensation will be payable, subject only to the conditions applicable thereto, regardless of the outcome of the vote on this Compensation Proposal.

The Board unanimously recommends that our stockholders vote “FOR” approval of the Compensation Proposal.

We are asking you to approve a proposal to adjourn the Special Meeting to a later date or dates if the Board determines that it is necessary or appropriate, including to solicit additional proxies if there are insufficient votes to approve the Merger Agreement Proposal at the time of the Special Meeting. If the Board determines that it is necessary or appropriate, we will ask our stockholders to vote only on this Adjournment Proposal and not to vote on the Merger Agreement Proposal or the Compensation Proposal. We do not anticipate calling a vote on this proposal if the Merger Agreement Proposal is approved by the affirmative vote of the holders of a majority of the Shares of our Common Stock outstanding at the close of business on the Record Date.

If our stockholders approve the Adjournment Proposal, we could adjourn the Special Meeting and any adjourned session of the Special Meeting and use the additional time to solicit additional proxies, including soliciting proxies from our stockholders that have previously returned properly executed proxies voting against approval of the Merger Agreement Proposal. Among other things, approval of the Adjournment Proposal could mean that, even if we had received proxies representing a sufficient number of votes against approval of the Merger Agreement Proposal such that the Merger Agreement Proposal would be defeated, we could adjourn the Special Meeting without a vote on the Merger Agreement Proposal and seek to convince the holders of those Shares to change their votes to votes in favor of Merger Agreement Proposal. Additionally, we may seek to adjourn the Special Meeting if a quorum is not present or otherwise at the discretion of the chair of the Special Meeting.

Approval of the Adjournment Proposal requires the affirmative vote of a majority of votes cast at the Special Meeting on the Adjournment Proposal.

The Board unanimously recommends that our stockholders vote “FOR” approval of the Adjournment Proposal.

Vapotherm, Inc. is a Delaware corporation. Vapotherm is a global medical technology company primarily focused on the care of patients of all ages suffering from respiratory distress, whether associated with complex lung diseases such as chronic obstructive pulmonary disease, congestive heart failure, pneumonia, asthma and COVID-19 or other systemic conditions. Vapotherm’s principal business address is 100 Domain Drive, Exeter, New Hampshire 03833, and its telephone number is (603) 658-0011.

Vapotherm’s Common Stock trades on the OTCQX tier of the OTC Markets under the symbol “VAPO.” Vapotherm’s corporate web address is https://www.vapotherm.com. The information provided on Vapotherm’s website is not part of this proxy statement and is not incorporated in this proxy statement by reference or by any other reference to Vapotherm’s website provided in this proxy statement.

See “Other Important Information Regarding Vapotherm.—Company Background” for additional information.

Additional information about Vapotherm is contained in its public filings made with the SEC, including its Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on February 22, 2024 (as amended by Amendment No. 1 on Form 10-K/A, filed with the SEC on April 29, 2024), which Form 10-K and Form 10-K/A are attached as Annex H to this proxy statement, and Vapotherm’s most recent Quarterly Report on Form 10‑Q for the quarterly period ended March 31, 2024, filed with the SEC on May 9, 2024, which is attached as Annex I to this proxy statement.

Topco is a Delaware limited liability company and was formed on June 13, 2024 solely for the purpose of engaging in the transactions contemplated by the Merger Agreement. Topco was formed, and is wholly owned, by Perceptive Discovery ID LP. Topco has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement. Topco has elected to be treated as a corporation for U.S. federal income tax purposes. The principal executive offices of Topco are located at 51 Astor Place, 10th Floor, New York, NY 10003, and its telephone number is (646) 205-5300.

Parent is a Delaware limited liability company and a wholly owned subsidiary of Topco and was formed on June 13, 2024 solely for the purpose of engaging in the transactions contemplated by the Merger Agreement. Parent has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement and the related Equity Financing. Parent has elected to be treated as a corporation for U.S. federal income tax purposes. The principal executive offices of Parent are located at 51 Astor Place, 10th Floor, New York, NY 10003, and its telephone number is (646) 205-5300.

Merger Sub is a Delaware corporation and a wholly owned subsidiary of Parent and was formed on June 13, 2024 solely for the purpose of engaging in the transactions contemplated by the Merger Agreement. Merger Sub has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement. Upon the completion of the Merger, Merger Sub will cease to exist and the Company will continue as the Surviving Corporation and a wholly-owned subsidiary of Parent. The principal executive offices of Merger Sub are located at 51 Astor Place, 10th Floor, New York, NY 10003, and its telephone number is (646) 205-5300.

We are a Delaware corporation that was originally incorporated in Maryland in 1999 and in 2013 we reincorporated in Delaware. We are a global medical technology company primarily focused on the care of patients of all ages suffering from respiratory distress, whether associated with complex lung diseases such as chronic obstructive pulmonary disease, congestive heart failure, pneumonia, asthma and COVID-19 or other systemic conditions. Our principal business address is 100 Domain Drive, Exeter, New Hampshire 03833, and our telephone number is (603) 658-0011.

Our Common Stock trades on the OTCQX under the symbol “VAPO.” Our corporate web address is https://www.vapotherm.com.

If the Merger is consummated, then Vapotherm will be wholly owned by Parent, which will be wholly owned by Topco, and our Common Stock will no longer trade on the OTCQX and will be deregistered under the Exchange Act.

During the past five years, neither Vapotherm nor any of our directors or executive officers listed below has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). In addition, during the past five years, except as set forth below, neither Vapotherm nor any of our directors or executive officers listed below has been a party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal or state securities laws.

The Board presently consists of eight members. The persons listed below are the directors and executive officers of Vapotherm as of the date of this proxy statement. The principal business address of each executive officer is: 100 Domain Drive, Exeter, New Hampshire 03833, and the telephone number of each executive officer is (603) 658-0011. Except as noted below, each of the individuals listed below is a citizen of the United States.

James Liken has served as a member of the Board since May 2010 and as Board Chairman since October 2012. From 2003 to 2008, Mr. Liken served as Vice Chairman of Respironics, Inc., now Philips Respironics, a medical supply company. From 1999 through 2003, Mr. Liken served as President and Chief Executive Officer of Respironics. Before joining Respironics, he was owner of Liken Home Medical, Inc., a regional provider of home respiratory services. Mr. Liken has been active in the home medical business since 1976, serving in management and ownership capacities for several predecessor companies. He previously served on the board of the National Association of Medical Equipment Services from 1980 to 2003, serving as chairman of the organization on two separate occasions.

Joseph Army has served as President, Chief Executive Officer and as a member of the Board since June 2012. Prior to joining Vapotherm, Mr. Army served as President and Chief Executive Officer of Salient Surgical Technologies, Inc. (formerly TissueLink Medical, Inc.), or Salient, a surgical device company, since 2007. He first joined Salient in 1999 as Chief Financial Officer and Vice President of Finance. Prior to his time at Salient, he held various positions including Vice President of Finance and Supply Chain Operations for Westaim Biomedical, a medical technology company, from 1998 to 1999 and strategy consultant for Coopers & Lybrand LLP, an accounting and consulting firm, from 1991 to 1997. Mr. Army holds a Master’s in Business Administration in finance from The Wharton School and a Bachelor of Art degree in history from the University of Rhode Island. He is certified in production and inventory management and is a certified public accountant (inactive status).

Anthony Arnerich has served as a member of the Board since April 2013. Mr. Arnerich has served as a Managing Director of 3x5 Partners, LLC, a venture capital firm, since 2011 and has previously served as Chief Executive Officer and Chief Investment Officer of Arnerich Massena, an investment advisory firm, from 1991 to 2020. His experience in the investment industry spans more than 30 years, during which he served as an investment executive and helped found the Investment Management Consulting Group of Dain Bosworth. Mr. Arnerich earned a Bachelor of Art degree from Santa Clara University.

Lance Berry has served as a member of the Board since January 2020. Mr. Berry currently serves as Chief Financial Officer and Executive Vice President, Finance of Artivion, Inc., a cardiac and vascular surgery company focused on aortic disease, a position he has held since December 2023. From December 2002 until its acquisition by Stryker Corporation in November 2022, Mr. Berry worked for Wright Medical Group, Inc., joining in 2002 as Corporate Controller and being promoted to various roles culminating in the roles of Senior Vice President and Chief Financial Officer from December 2009 to January 2019 and Executive Vice President, Chief Financial and Operations Officer from January 2019 to November 2020. Before joining Wright Medical, he was an accountant in the auditing division of Arthur Andersen, LLP, from 1995 to 2002. He currently serves on the board of directors of Treace Medical Concepts, Inc., a publicly held Nasdaq-listed medical technology company. Mr. Berry is a Certified Public Accountant (inactive) and holds both a Bachelor’s degree and a Master’s degree in accounting from the University of Mississippi.

Lori Knowles has served as a member of the Board since June 2022. Ms. Knowles, a senior healthcare executive with more than 25 years of experience in human resources and healthcare operations, has served as Senior Vice President and Chief Human Resources Officer at Memorial Hermann Health System, the largest not-for-profit health system in Southeast Texas, since August 2016. From September 2011 to August 2016, Ms. Knowles served as Vice President of Human Resources at Memorial Hermann Health. Ms. Knowles has served as a facilitator for the Texas Institute for Health Policy Research, a public health institute that seeks to find preventive solutions that improve the health of Texans. In addition, Ms. Knowles serves on Human Resources Advisory boards for the University of Houston and Rice University, as well as the Higher Education Committee of the Greater Houston Partnership. She also serves as the President of the Houston Healthcare HR Association (HHHRA). Prior to joining Memorial Hermann, Lori was the Chief Operating Officer at RediClinic, a retail health company, from October 2007 to March 2011, and Vice President, Human Resources of RediClinic from October 2007 to October 2008. Throughout her career, Ms. Knowles has held several Human Resource roles at other notable health systems in Texas including: The University of Texas Medical Branch (UTMB), Shriners Hospitals for Children, and Tenet Healthcare. Ms. Knowles holds an undergraduate degree in Psychology and a Master’s Degree in Organizational Management as well as an executive leadership certification from Rice University.

Mary Beth Moynihan has served as a member of the Board since June 2022. Ms. Moynihan currently serves as Senior Vice President, Market Access & Chief Marketing Officer at Boston Scientific Corporation, a medical technology company, a position she has held since May 2021 and recently joined Boston Scientific’s Executive Committee. Prior to that position, she previously served as Senior Vice President of Corporate Marketing and Market Access from August 2016 to May 2021, Senior Vice President of Enterprise Strategy and Marketing from September 2012 to July 2016, Vice President of Corporate Strategic Planning and Research from May 2010 to August 2012, Vice President of Business Development – Cardiovascular Businesses from 2007 to 2010, Director of Business Development – Cardiovascular Businesses from 2006 to 2007, and from 1997 to 2005 held various positions of increasing responsibility in Product Marketing – Peripheral Interventions, most recently as Director of Product Marketing. Ms. Moynihan additionally founded and chairs the Global Marketing Executive Board at Boston Scientific Corporation, a position she has held since 2016. Prior to her employment at Boston Scientific Corporation, Ms. Moynihan was employed by Braxton Associates, a strategy division of Deloitte & Touche, from 1994 to 1997. She is a founding board member of MedExecWomen, an organization focused on empowering female executives to accelerate the positive impact of medical devices and diagnostics globally, and has served as a director since October 2018. She has also served as a senior advisor to Boston Scientific’s Global Digital Enablement Team since November 2020. Ms. Moynihan received a Bachelor of Art degree in Economics and Mathematics from Williams College and holds an MBA from the Wharton School at the University of Pennsylvania.

Donald Spence has served as a member of the Board since October 2020. Mr. Spence served as President and Chief Executive Officer of Ebb Therapeutics, a sleep technology company, beginning in 2017 and retiring from the role in August 2019. Prior to joining Ebb, Mr. Spence was the Chairman and Chief Executive Officer at Lake Region Medical, a medical equipment and supplies manufacturer, where he worked from 2010 to 2015. Mr. Spence previously served as the Chief Executive Officer of Philips Respironics, formerly Respironics Inc., a medical supply company, from 2005 to 2010, where he was responsible for Philips Home Healthcare Solutions and integrating Respironics into Philips. Mr. Spence also has held a number of executive leadership roles within medical technology companies, including BOC Group, PLC – Datex Ohmeda Medical Systems, a medical device company. Besides Vapotherm, Mr. Spence currently serves on the board of directors of Integer Holdings Corporation, a publicly held NYSE-listed medical outsource manufacturer, and Linguaflex, a privately held medical device company. Mr. Spence previously served on the board of directors of Eargo, Inc. prior to its going private transaction completed in February 2024. Mr. Spence earned his Bachelor of Art degree in Economics from Michigan State University and his Master of Arts degree in Economics from Central Michigan University.

Elizabeth Weatherman has served as a member of the Board since October 2017. Ms. Weatherman has served as a Special Limited Partner of Warburg Pincus, a private equity firm, since January 2016. She joined Warburg Pincus in 1988. She served as a member of the Executive Management Group from 2001 to 2016 and led the firm’s Healthcare Group from 2008 to January 2015. Ms. Weatherman currently serves on the board of directors of Nevro Corp., Silk Road Medical, Inc. and Insulet Corp., all publicly held companies, and previously served on the board of directors of Wright Medical Group, N.V. She serves as a trustee of Stanford University, and as a trustee and chair of the Investment Committee of Mount Holyoke College. Ms. Weatherman received a Bachelor of Art degree in English, summa cum laude, and Phi Beta Kappa from Mount Holyoke College and holds a Master’s of Business Administration degree from the Stanford Graduate School of Business.

Joseph Army has served as President, Chief Executive Officer and as a member of the Board since June 2012. Prior to joining Vapotherm, Mr. Army served as President and Chief Executive Officer of Salient Surgical Technologies, Inc. (formerly TissueLink Medical, Inc.), or Salient, a surgical device company, since 2007. He first joined Salient in 1999 as Chief Financial Officer and Vice President of Finance. Prior to his time at Salient, he held various positions including Vice President of Finance and Supply Chain Operations for Westaim Biomedical, a medical technology company, from 1998 to 1999 and strategy consultant for Coopers & Lybrand LLP, an accounting and consulting firm, from 1991 to 1997. Mr. Army holds a Master’s of Business Administration degree in finance from The Wharton School and a Bachelor of Art degree in history from the University of Rhode Island. He is certified in production and inventory management and is a certified public accountant (inactive status).

John Landry – Senior Vice President, Chief Financial Officer and Treasurer

John Landry has served as Senior Vice President, Chief Financial Officer and Treasurer since July 2020 and served previously as Vice President, Chief Financial Officer, Secretary and Treasurer from August 2012 to July 202. Prior to joining Vapotherm, he held a number of leadership roles at Salient from 2004 to 2011, including VP Accounting & Controller and VP Global Business Development. Mr. Landry also served as Director of International Marketing at Medtronic Advanced Energy from 2011 to 2012, which acquired Salient in August 2011. Prior to his time at Salient, he served in various financial leadership roles at Bottomline Technologies from 2000 to 2004, Hussey Seating Company from 1997 to 2000 and Coopers & Lybrand LLP from 1994 to 1997. Mr. Landry currently serves on the board of directors of Liberate Medical, Inc. Mr. Landry graduated summa cum laude from Bentley College with a BS in Accountancy and is a certified public accountant (inactive status).

Brian Lawrence has served as our Senior Vice President and Chief Technology Officer since December 2021. Prior to joining Vapotherm, Mr. Lawrence served as Chief Technology Officer and General Manager of Gravity Diagnostics, LLC, a diagnostics company, where he was responsible for technology and innovation programs across the company. Prior to joining Gravity Diagnostics, Mr. Lawrence served as Senior Vice President and Chief Technology Officer of Hillrom Holdings, Inc., a medical device company, from 2010 to 2021. While at Hillrom, Mr. Lawrence was responsible for global technology and innovation teams of over 800 employees in seven countries and an annual budget of $150 million. He led a digital transformation for the company and created a new SaaS business valued at over $100 million. Prior to that position, he served as Chief Technology Officer of Life Support Solutions, a division of GE Healthcare, where he was responsible for global engineering teams of over 400 employees across the US, Europe, and Asia with a budget of over $70 million annually. Mr. Lawrence holds a Doctor of Philosophy, Electrical Engineering, from the Center for Research and Education in Optics and Lasers, University of Central Florida, and a Master of Science, Electrical Engineering and a Bachelor of Science, Electrical Engineering from Massachusetts Institute of Technology.

Our Common Stock trades on the OTCQX tier of the OTC Markets Group, Inc. under the symbol “VAPO.” Prior to December 15, 2023, our Common Stock was listed on and traded on The New York Stock Exchange (the “NYSE”).

The table below shows, for the periods indicated, the reported high and low sale prices per Share on the OTCQX and prior to December 15, 2023, the NYSE, for our Common Stock. Over-the-counter market quotations of our Common Stock reflect inter-dealer prices, without retail mark-up, mark-down, or commission, and may not represent actual transactions.

On June 14, 2024, the last trading day prior to the announcement of the Merger Agreement, the high and low sale prices per Share of Common Stock as reported on the OTCQX were $0.82 and $0.82, respectively, and the closing sale price per share of Common Stock as reported on the OTCQX on that date was $0.82.

On , 2024, the last trading day for which information was available prior to the date of the printing of this proxy statement, the high and low sale prices per Share of Common Stock as reported on the OTCQX were $ and $ , respectively, and the closing sale price per Share of Common Stock as reported on the OTCQX on that date was $ .

Our stockholders should obtain a current market quotation for our Common Stock before making any decision with respect to the Merger.

If the Merger is consummated, there will be no further market for the Shares because our Common Stock will no longer trade on the OTCQX or any other over-the-counter market and will be deregistered under the Exchange Act.

At the close of business on the Record Date, there were Shares of our Common Stock issued and outstanding and held by approximately 167 holders of record.

Since our organization, we have not declared nor paid any cash dividends on our Common Stock. Accordingly, we do not expect to declare or pay dividends on our Common Stock prior to the consummation of the Merger and, under the terms of the Merger Agreement, we are prohibited from doing so. In addition, the SLR Loan Agreement contains terms prohibiting or limiting the amount of dividends that may be declared or paid on our Common Stock.

Set forth below is certain selected historical financial information relating to Vapotherm. The selected historical financial data as of and for the fiscal years ended December 31, 2023 and 2022 have been derived from our historical audited consolidated financial statements contained in our Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on February 22, 2024 (as amended by Amendment No. 1 on Form 10-K/A, filed with the SEC on April 29, 2024), which Form 10-K and Form 10-K/A are attached as Annex H to this proxy statement. The selected historical financial data as of and for the three months ended March 31, 2024 and 2023 are derived from our unaudited condensed consolidated financial statements contained in our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2024, filed with the SEC on May 9, 2024, which is attached as Annex I to this proxy statement.

This information is only a summary and should be read in conjunction with our Annual Report on Form 10-K for the fiscal year ended December 31, 2023 (as amended by Amendment No. 1 on Form 10-K/A) and our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2024. More comprehensive financial information is included in those reports, including management’s discussion and analysis of the financial condition and results of operations of Vapotherm.

Historical results are not necessarily indicative of results to be expected in any future period.

No pro forma data giving effect to the Merger has been provided. We do not believe that such information is material to our stockholders in evaluating the Merger and the Merger Agreement because (i) the Per Share Merger Consideration consists only of cash, and (ii) if the Merger is consummated, the Common Stock will cease to be publicly traded.

Our net book value per share as of March 31, 2024 was approximately $(11.02) (calculated based on 6,216,349 shares outstanding as of such date).

Other than the Merger Agreement and agreements entered into in connection therewith, including the SLR Rollover Agreement (as described in “Special Factors—SLR Rollover Agreement”), the Stockholder Rollover Agreements (as described in “Special Factors—Stockholder Rollover Agreements”), the Voting and Support Agreements (as described in “Special Factors—Voting and Support Agreements”), the Subscription Agreements (as described in “Special Factors—Subscription Agreements”) and certain Share activity related to our equity awards discussed elsewhere in this proxy statement, neither we nor any of our affiliates have executed any transactions with respect to our Common Stock during the past 60 days.

During the past two years, we have not repurchased any Shares or other securities.

During the past three years, we have not effected any underwritten public offering of our Common Stock for cash registered under the Securities Act of 1933, as amended.

On February 7, 2023, Vapotherm entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain institutional purchasers (the “Purchasers”), pursuant to which Vapotherm offered and sold to the Purchasers, in an unregistered offering, an aggregate of 2,187,781 Shares and, and in the case of certain investors, in lieu of Shares of common stock, pre-funded warrants to purchase an aggregate of 550,313 Shares, and, in each case, accompanying warrants to purchase an aggregate of up to 2,738,094 Shares at a purchase price of $8.40 per unit for aggregate gross proceeds to us of approximately $23.0 million, before deducting fees to the placement agent and other estimated offering expenses payable by Vapotherm. The warrants and pre-funded warrants have exercise prices of $9.36 and $0.008 per share and terms of five years and 30 years, respectively. The following directors and officers participated in this private placement:

On February 18, 2022, we entered into the SLR Loan Agreement with SLR Investment Corp., as collateral agent, and the lenders party thereto from time to time which provided for a term A loan facility of $100.0 million (the “SLR Term A Loan Facility”) and a term B loan facility of $25.0 million (the “Prior SLR Term B Loan Facility”), which SLR Term A Loan Facility was funded to us immediately. In connection with this funding, we granted SLR warrants to purchase 13,418 Shares at an exercise price of $111.76 per share, which were fully vested upon issuance, are exercisable at the option of the holder, in whole or in part, and expire in February 2032. The Prior Term B Loan Facility was to be available to us upon achievement of a certain minimum revenue level as more fully described in the SLR Loan Agreement. The proceeds of the SLR Term A Loan Facility were used to pay off all of our obligations owing under, and to terminate, our prior loan and security agreement with Canadian Imperial Bank of Commerce Innovation Banking, which provided for a revolving loan facility of $12.0 million and a term loan facility of $40.0. million.

On August 1, 2022, we entered into an Amendment No. 1 to the SLR Loan Agreement (the “First Amendment,” together with the SLR Loan Agreement, as amended, the “First Amended SLR Loan Agreement”) with SLR and the lenders party thereto. Pursuant to the First Amendment, we were provided with a one-month extension of our covenant-free period through August 31, 2022.

On September 30, 2022, we entered into an Amendment No. 2 to the SLR Loan Agreement (the “Second Amendment,” together with the First Amended SLR Loan Agreement, as amended, the “Second Amended SLR Loan Agreement”), with SLR. Pursuant to the Second Amendment:

Concurrently with the closing of the Second Amendment, we amended and restated SLR’s warrants to purchase 13,418 Shares to reset the exercise price to $13.04 per share.

On November 22, 2022, we entered into an Amendment No. 3 to the SLR Loan Agreement (the “Third Amendment,” together with the Second Amended SLR Loan Agreement, as amended, the “Third Amended SLR Loan Agreement”) with SLR and the lenders party thereto. Pursuant to the Third Amendment:

In addition, the Third Amendment provided that if we had raised $15 million of net cash equity proceeds prior to July 1, 2023, the 2023 minimum revenue covenant would have been waived and we would have only needed to demonstrate net product revenue of at least $25 million (tested on trailing six-month basis for the period ending September 30, 2023) for the fiscal year ending December 31, 2023 and our PIK Interest option would have been reduced to up to 4% of the interest rate under the Third Amended SLR Loan Agreement. Concurrently with the closing of the Third Amendment, we amended and restated SLR’s warrants to purchase 13,418 Shares to reset the exercise price to $3.84 per share.

On February 10, 2023, we entered into an Amendment No. 4 to the SLR Loan Agreement (the “Fourth Amendment,” together with the Third Amended SLR Loan Agreement, the “Fourth Amended SLR Loan Agreement”) with SLR and the lenders party thereto. The Fourth Amendment includes the option for us to pay up to 9% of the interest in-kind (rather than up to 8% as provided for then previously) during 2023. Under the Fourth Amendment, the PIK Interest option was to be reduced to 4% of the interest if we had raised $25 million of net cash equity proceeds prior to July 1, 2023 and was further to be reduced to 0% of the interest if we had raised $30 million of net cash equity proceeds prior to January 1, 2024.

Additionally, if we elect PIK Interest of 9%, the amount of warrants to be granted to SLR increases to be 5% times the amount of PIK Interest for the first 4% of the PIK Interest selected and 12.20% times on the next 5% of the amount of PIK Interest selected to provide for a weighted average of 9%, and our monthly interest expense increases by 1% for the month in which such PIK Interest is selected. The PIK fee remained at 10% of the PIK Interest. The Fourth Amendment also provides for a reset of the exercise price of the warrants to be issued in connection with our election of PIK Interest, including existing PIK Warrants, equal to the lower of the closing price of our Common Stock for (a) the 10-day trailing average closing price ending on the day before the interest payment date, (b) the day before the interest payment date, or (c) $9.36 per share.

On April 17, 2023, we entered into an Amendment No. 5 to the SLR Loan Agreement (the “Fifth Amendment,” together with the Fourth Amended SLR Loan Agreement, the “Fifth Amended SLR Loan Agreement”) with SLR and the lenders party thereto to exclude our Singapore subsidiary operating account from the requirement of a control agreement in favor of SLR, provided the account balance is the lower of (i) $250,000 or (ii) the amount required to fund expenditures therefrom within the next 10 business days. The Fifth Amendment also contains other customary provisions, such as expense reimbursement.

On February 21, 2024, we entered into an Amendment No. 6 to the SLR Loan Agreement (the “Sixth Amendment,” together with the Fifth Amended SLR Loan Agreement, the “Sixth Amended SLR Loan Agreement”) with SLR and the lenders party thereto to extend our option to pay up to 9% of interest in-kind (rather than solely in cash) for interest accruing for the period January 1, 2024 through March 1, 2024, subject to payment of a fee equal to 10% of the PIK Interest, and the issuance of additional warrants to equal 9% of the PIK Interest.

On March 26, 2024, we entered into an Amendment No. 7 to the SLR Loan Agreement (the “Seventh Amendment,” together with the Sixth Amended SLR Loan Agreement, the “Seventh Amended SLR Loan Agreement”) with SLR and the lenders party thereto. The Seventh Amendment established a new term B loan facility of $4.0 million (the “Term B Loan Facility”). Borrowings under the Term B Loan Facility are available from March 26, 2024 until July 26, 2024 (the “Term B Maturity Date”) and are conditioned on approval by the lenders’ investment committee in its sole discretion. On March 26, 2024, $2.0 million was funded to us. On April 26, 2024, an additional $1.0 million was funded to us under the Term B Loan Facility. The Term B Loan Facility provides for interest-only payments and aggregate principal outstanding will be due and payable on the Term B Maturity Date. We are required to make a payment of 0.2% of the aggregate principal amount of the Term B Loan Facility funded, which is payable on the earliest to occur of (i) the Term B Maturity Date, (ii) the acceleration of the Seventh Amended SLR Loan Agreement prior to the Term B Maturity Date, and (iii) the prepayment date of the Seventh Amended SLR Loan Agreement prior to the Term B Maturity Date. In addition, the Seventh Amendment extended our option to pay up to 9% of interest in-kind (rather than solely in cash) for interest accruing for the period from March 1, 2024 through April 30, 2024 with an additional extension to include interest accruing through May 31, 2024 at the sole discretion of SLR. The PIK Interest extension is subject to payment of a fee equal to 10% of the PIK Interest, and the issuance of additional warrants to purchase Shares equal to 9% of the PIK Interest.

Pursuant to the Seventh Amended SLR Loan Agreement, advances under the Term A Loan Facility bear interest at a floating rate per annum equal to (a) the greater of (i) 1.00% or (ii) the 1-month Chicago Mercantile Exchange (“CME”) Term SOFR plus 0.10%, plus (b) (i) 8.30% under a PIK Interest option of 4% or 0%, or (ii) 9.30% under a PIK Interest option of 9%. Advances under the Term B Loan Facility bear interest at a floating rate per annum equal to the sum of (a) 0.10%, plus (b) 8.30% plus (c) the 1-month CME Term SOFR plus 0.10%. At March 31, 2024, the interest rate under the Term A Loan Facility and Term B Loan Facility was 14.72% and 13.82%, respectively. We paid interest in-kind on the Term A Loan Facility totaling $2.5 million and $2.1 million during the three months ended March 31, 2024 and 2023, respectively. The outstanding balance under the Term A Loan Facility and Term B Loan Facility was $111.8 million and $2.0 million, respectively, at March 31, 2024. The Term A Loan Facility provides for interest-only payments for the first 48 months following March 26, 2024. Thereafter, principal payments on the Term A Loan Facility are due monthly in 12 equal installments; provided that we have the option to extend the interest-only period for an additional 12 months upon achievement of a certain minimum revenue level as more fully described in the Seventh Amended SLR Loan Agreement. The Term A Loan Facility will mature on February 1, 2027 (the “Term A Maturity Date”). The Seventh Amended SLR Loan Agreement may be prepaid in full, subject to a prepayment charge of 1.0%, if such prepayment occurs after February 18, 2024 but on or prior to the Term A Maturity Date. In addition to the payment of principal and accrued interest, we will be required to make a payment of 7.45% of the aggregate principal amount of the Term A Loan Facility funded, which is payable on the earliest to occur of (i) the Term A Maturity Date, (ii) the acceleration of the Seventh Amended SLR Loan Agreement prior to the Term A Maturity Date, and (iii) the prepayment date of the Seventh Amended SLR Loan Agreement prior to the Term A Maturity Date. The loans under the Seventh Amended SLR Loan Agreement are secured by a lien on substantially all of our assets, including intellectual property.

Concurrently with the execution and delivery of the Merger Agreement, we entered into the Eighth Amendment with SLR and the lenders party thereto, as described under “Special Factors—SLR Rollover Agreement and Other Agreements—Eighth Amendment to SLR Loan Agreement.”

As described above, we granted SLR and certain of its related entities warrants to purchase an aggregate of 13,418 Shares at an exercise price of $111.76 per Share, which were fully vested upon issuance, exercisable at the option of the holder, in whole or in part, and expire in February 2032. We subsequently amended these warrants to reduce the exercise price on two occasions in connection with the Second Amendment and Third Amendment, as described above. The current exercise price of these warrants is $3.84 per Share.

Also as described above, as part of the Third Amendment, an option was added, at our sole discretion, to pay up to 8% of the interest under the then Third Amended SLR Loan Agreement in-kind (rather than solely in cash as provided for then previously), subject to payment of a fee equal to 10% of the PIK Interest, and the issuance of additional warrants to the lenders equal to 5% of the PIK Interest.

Subsequently, the Fourth Amendment included the option for us to pay up to 9% of the interest in-kind (rather than up to 8% as provided under the Third Amendment). Additionally, under the Fourth Amendment, if we elected PIK Interest of 9%, the amount of warrants to be granted to SLR would increase to be 5% times the amount of PIK Interest for the first 4% of the PIK Interest selected and 12.20% times on the next 5% of the amount of PIK Interest selected to provide for a weighted average of 9%, and our monthly interest expense would increase by 1% for the month in which such PIK Interest is selected. The Fourth Amendment also provided for a reset of the exercise price of the warrants to be issued in connection with our election of PIK Interest, including existing PIK Warrants, equal to the lower of the closing price of our Common Stock for (a) the 10-day trailing average closing price ending on the day before the interest payment date, (b) the day before the interest payment date, or (c) $9.36 per share.

The Sixth Amendment extended our option to pay up to 9% of interest in-kind (rather than solely in cash) for interest accruing for the period January 1, 2024 through February 29, 2024, subject to payment of a fee equal to 10% of the PIK Interest, and the issuance of additional warrants to equal 9% of the PIK Interest.

The Seventh Amendment extended our option to pay up to 9% of interest in-kind (rather than solely in cash) for interest accruing for the period from March 1, 2024 through April 30, 2024 with an additional extension to include interest accruing through May 31, 2024 at the sole discretion of SLR. The PIK Interest extension was subject to payment of a fee equal to 10% of the PIK Interest, and the issuance of additional warrants to purchase Shares equal to 9% of the PIK Interest.

At the time of the execution of the Merger Agreement, SLR and its related entities held warrants to purchase an aggregate of 13,418 Shares at an exercise price of $3.84 per Share and PIK Warrants to purchase an aggregate of 292,916 Shares at a weighted average exercise price of $2.87 per Share. In addition, at the time of the execution of the Merger Agreement, we owed SLR and its related entities warrants to purchase an aggregate of 386,202 Shares at exercise prices ranging from $0.76 per Share to $1.32 per Share, with a weighted average exercise price of $0.99 per Share. All of these warrants are collectively referred to as the “SLR Warrants.”

Concurrently with the execution and delivery of the Merger Agreement, we entered into the SLR Warrant Amendment Agreement with the holders of the SLR Warrants, as described under “Special Factors—SLR Rollover Agreement and Other Agreements—SLR Warrant Amendment Agreement.” Pursuant to the terms and subject to the conditions of the SLR Warrant Amendment Agreement, we and the SLR Warrant Holders agreed (a) to, effective immediately prior to the consummation of the SLR Rollover, amend the SLR Warrants to provide for the contribution of the SLR Warrants by the SLR Warrant Holders to Topco in exchange for the consideration to be issued to the SLR Warrant Holders in connection with the SLR Rollover (and the subsequent contribution to a subsidiary of Topco and the cancellation and retirement of the SLR Warrants with no conversion thereof, or payment or distribution with respect thereto, following the consummation of the SLR Rollover), and (b) that, immediately prior to the consummation of the SLR Rollover (but subject to the subsequent consummation of the Merger immediately following the SLR Rollover), we will issue to the SLR Warrant Holders all of the SLR Warrants that are outstanding, or unissued but otherwise due to the SLR Warrant Holders, under the SLR Loan Agreement pursuant to the provisions thereof (the “Outstanding SLR Warrants”); provided, in the event that the Merger Agreement is validly terminated in accordance with its terms prior to the consummation of the Merger, we will thereafter, upon the election of any SLR Warrant Holder, issue to such SLR Warrant Holder all or any portion of its Outstanding SLR Warrants; provided, further, that we will not effect any issuance of the Outstanding SLR Warrants, until the earlier of (i) immediately prior to the consummation of the SLR Rollover (but subject to the subsequent consummation of the Merger immediately following the SLR Rollover), and (ii) such time as the Merger Agreement is validly terminated in accordance with its terms prior to the consummation of the Merger.

The SLR Warrant Amendment Agreement also provides that the SLR Warrant Holders will not be entitled to exercise the SLR Warrants (without our prior written consent) until such time as the Merger Agreement is validly terminated in accordance with its terms prior to the consummation of the Merger.

The table below sets forth information as to entities that have reported to the SEC or have otherwise advised Vapotherm that they are a beneficial owner, as defined by the SEC’s rules and regulations, of more than five percent of our outstanding Common Stock, in each case as of the dates as reflected in the notes to the table below.

The table below sets forth information known to Vapotherm regarding the beneficial ownership of our Common Stock as of , 2024, by:

To our knowledge, each person named in the table has sole voting and investment power with respect to all of the securities shown as beneficially owned by such person, except as otherwise set forth below and subject to community property laws, where applicable. The number of Shares beneficially owned represents the number of Shares the person “beneficially owns,” as determined by SEC rules. The SEC has defined “beneficial ownership” of a security to mean the possession, directly or indirectly, of voting power and/or investment power. A stockholder is also deemed to be, as of any date, the beneficial owner of all securities that such stockholder has the right to acquire within 60 days after that date through (i) the vesting and settlement of restricted stock units or the exercise of any option, warrant, or right; (ii) the conversion of a security; (iii) the power to revoke a trust, discretionary account, or similar arrangement; or (iv) the automatic termination of a trust, discretionary account, or similar arrangement.

Mr. Arnerich may be deemed to share beneficial ownership in the Shares held by Vapotherm Investors, LLC and 3x5 Special Opportunity Fund, L.P. Mr. Arnerich is a managing member of 3x5 Partners, LLC. 3x5 Partners, LLC is the managing member of Vapotherm Investors, LLC and a member of 3x5 Special Opportunity Partners, LLC, which is the general partner of 3x5 Special Opportunity Fund, L.P., and by virtue of these relationships 3x5 Partners, LLC may be deemed to indirectly beneficially own the Shares directly held by Vapotherm Investors, LLC and 3x5 Special Opportunity Fund, L.P. As a managing member of 3x5 Partners, LLC, Mr. Arnerich shares voting and dispositive power over such Shares. Mr. Arnerich disclaims beneficial ownership of these Shares except to the extent of his pecuniary interest therein.

Mr. Arnerich is the sole trustee of the Matthew J. Army Irrevocable Gift Trust and the Mikaela K. Army Irrevocable Gift Trust and has sole voting and dispositive power over the Shares held by the Matthew J. Army Irrevocable Gift Trust and the Mikaela K. Army Irrevocable Gift Trust. Mr. Arnerich has sole voting and dispositive power over the Shares held by the I Am Learnings Foundation, a tax exempt 501(c)(3) organization.

This section sets forth certain information about the SLR Filing Persons. During the past five years, none of the persons listed in this section has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). In addition, during the past five years, none of the persons listed in this section has been a party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal or state securities laws.

SLR Investment Corp. is a Maryland corporation. Each of SCP Private Credit Income Fund SPV, LLC, SCP Private Credit Income BDC LLC, SCP Private Credit Income BDC SPV LLC, SCP Private Corporate Lending Fund SPV LLC, SLR CP SF Debt Fund SPV, LLC, SLR HC Fund SPV, LLC, SLR HC BDC LLC, SLR HC BDC SPV, LLC and SLR Capital Advisors is a Delaware limited liability company. Each of SCP Private Credit Income Fund LP, SCP Private Corporate Lending Fund L.P., SCP SF Debt Fund L.P. and SLR HC Onshore Fund L.P. is a Delaware limited partnership. SCP Cayman Debt Master Fund SPV LLC is a Cayman Islands limited liability company. SCP Cayman Debt Master Fund L.P. is a Cayman Islands limited partnership. Michael S. Gross and Bruce Spohler are individuals.

The principal business of SLR Investment Corp., SCP Private Credit Income Fund LP, SCP Private Credit Income Fund SPV LLC, SCP Private Credit Income BDC LLC, SCP Private Credit Income BDC SPV LLC, SCP Private Corporate Lending Fund LP, SCP Private Corporate Lending Fund SPV LLC, SCP Cayman Debt Master Fund L.P., SCP Cayman Debt Master Fund SPV LLC, SCP SF Debt Fund LP, SLR CP SF Debt Fund SPV LLC, SLR HC Onshore Fund LP, SLR HC Fund SPV LLC, SLR HC BDC LLC and SLR HC BDC SPV LLC is making debt and equity investments. The principal business of SLR Capital Partners, LLC is to serve as investment adviser to private funds, BDCs and managed accounts.

Michael S. Gross is the Chairman of the Board of Directors, Co-Chief Executive Officer and President of SLR Investment Corp.

Bruce Spohler is the Co-Chief Executive Officer, Chief Operating Officer and Director of SLR Investment Corp.

The business address and telephone number of each of the SLR Filing Persons is c/o SLR Capital Partners, LLC, 500 Park Avenue, 3rd Floor, New York, NY 10022, and (212) 993-1670.

The following table sets forth the name, citizenship, present principal occupation or employment and material occupations, positions, offices or employments for the past five years of each executive officer and director of SLR Investment Corp. as of the date of this proxy statement.

SCP Private Credit Income Fund SPV, LLC, SCP Private Credit Income BDC SPV LLC, SCP Private Corporate Lending Fund SPV LLC, SCP Cayman Debt Master Fund SPV LLC, SLR CP SF Debt Fund SPV, LLC, SLR HC Fund SPV, LLC and SLR HC BDC SPV, LLC

The sole member of SCP Private Credit Income Fund SPV, LLC is SCP Private Credit Income Fund LP.

The sole member of SCP Private Credit Income BDC SPV LLC is SCP Private Credit Income BDC LLC.

The sole member of SCP Private Corporate Lending Fund SPV LLC is SCP Private Corporate Lending Fund L.P.

The sole member of SCP Cayman Debt Master Fund SPV LLC is SCP Cayman Debt Master Fund L.P.

The directors of SCP Private Credit Income Fund SPV, LLC, SCP Private Credit Income BDC SPV LLC, SCP Private Corporate Lending Fund SPV LLC, SLR CP SF Debt Fund SPV, LLC, SLR HC Fund SPV, LLC and of SLR HC BDC SPV, LLC are Michael S. Gross, Bruce Spohler and Donald Puglisi. SCP Cayman Debt Master Fund SPV LLC is member-managed without appointed directors. Michael S. Gross and Bruce Spohler serve as Co-Presidents, and Shiraz Kajee serves as Chief Financial Officer and Secretary for these entities. The citizenship, present principal occupation or employment and material occupations, positions, offices or employments for the past five years for each of Messrs. Gross, Spohler and Kajee is set forth above.

The citizenship, present principal occupation or employment and material occupations, positions, offices or employments for the past five years for Mr. Puglisi is set forth below.

SCP Private Credit Income Fund LP, SCP Private Credit Income BDC LLC, SCP Private Corporate Lending Fund L.P., SCP Cayman Debt Master Fund L.P., SCP SF Debt Fund L.P., SLR HC Onshore Fund L.P. and SLR HC BDC LLC

The directors of SCP Private Credit Income BDC LLC and SLR HC BDC LLC are Michael S. Gross, Bruce Spohler, Steven Hochberg, Leonard Potter and David Wachter. Michael S. Gross serves as Co-Chief Executive Officer and President, Bruce Spohler serves as Co-Chief Executive Officer and Chief Operating Officer, Shiraz Kajee serves as Chief Financial Officer and Guy Talarico serves as Chief Compliance Officer for these entities. The citizenship, present principal occupation or employment and material occupations, positions, offices or employments for the past five years for each of these individuals is set forth above.

SCP Private Credit Income Fund LP, SCP Private Corporate Lending Fund L.P., SCP Cayman Debt Master Fund L.P., SCP SF Debt Fund L.P. and SLR HC Onshore Fund L.P. do not have appointed officers and directors. These entities are managed by their general partner, SLR Capital Partners, LLC.

The investment manager of each of SCP Private Credit Income Fund LP, SCP Private Credit Income BDC LLC, SCP Private Corporate Lending Fund L.P., SCP Cayman Debt Master Fund L.P., SCP SF Debt Fund L.P., SLR HC Onshore Fund L.P. and SLR HC BDC LLC is SLR Capital Partners, LLC.

The managing members of SLR Capital Partners, LLC are Michael S. Gross and Bruce Spohler. Shiraz Kajee serves as the Chief Financial Officer and Guy Talarico serves as the Chief Compliance Officer and Secretary of SLR Capital Partners, LLC. The citizenship, present principal occupation or employment and material occupations, positions, offices or employments for the past five years for each of these individuals is set forth above.

If the Merger is completed, we will have no public stockholders and there will be no public participation in any future meetings of our stockholders. However, if the Merger is not completed, our stockholders will continue to be entitled to attend and participate in meetings of our stockholders.

We intend to hold an annual meeting of our stockholders in 2024 only if the Merger is not completed. If we hold a 2024 annual meeting of stockholders, we plan to file a Current Report on Form 8-K announcing the date of the 2024 annual meeting of stockholders.

To be considered for inclusion in the proxy statement for our 2024 annual meeting of stockholders, stockholder proposals pursuant to Rule 14a-8 under the Exchange Act must be received by Vapotherm’s Senior Vice President, General Counsel and Secretary, at Vapotherm, Inc., 100 Domain Drive, Exeter, NH 03833 a reasonable time before we begin to print and send our proxy materials. This timing is because the date of our 2024 annual meeting of stockholders will have been changed by more than 30 days from the date of our 2023 annual meeting of stockholders. If we hold a 2024 annual meeting of stockholders, we plan to file a Current Report on Form 8-K announcing the date of the 2024 annual meeting of stockholders and the date by when stockholder proposals pursuant to Rule 14a-8 under the Exchange Act must be received. While the Board will consider stockholder proposals, we reserve the right to omit from the proxy statement stockholder proposals that we are not required to include under the Exchange Act, including Rule 14a-8.

Our Bylaws provide that for stockholder nominations to the Board or other proposals to be considered at an annual meeting, the stockholder must have given timely notice thereof in writing to Vapotherm’s Senior Vice President, General Counsel and Secretary, at Vapotherm, Inc., 100 Domain Drive, Exeter, NH 03833. If we hold a 2024 annual meeting of stockholders, the date of the 2024 annual meeting of stockholders will have been changed by more than 30 days from the date of the 2023 annual meeting of stockholders; therefore, to be timely for the 2024 annual meeting of stockholders, a stockholder’s notice must be delivered to or mailed and received by us not later than the close of business on the 10th day following the day on which we provides notice or public disclosure of the date of the 2024 annual meeting of stockholders. If we hold a 2024 annual meeting of stockholders, we plan to file a Current Report on Form 8-K announcing the date of the 2024 annual meeting of stockholders. The stockholder’s notice must provide the information required by our Bylaws with respect to each matter the stockholder proposes to bring before the 2024 annual meeting of stockholders. In addition, if applicable, stockholders who intend to solicit proxies in support of director nominees other than the Board’s nominees at the 2024 annual meeting of stockholders must also comply with the additional requirements under Rule 14a-19 promulgated under the Exchange Act, as required by and in addition to our Bylaws, including providing a statement that such stockholder intends to solicit the holders of shares representing at least 67% of the voting power of our Shares entitled to vote on the election of directors in support of director nominees other than the Board’s nominees, as required by Rule 14a-19(b).

We encourage stockholders who wish to submit a proposal or nomination to seek independent counsel. We will not consider any proposal or nomination that is not timely or otherwise does not meet our Bylaw and SEC requirements. We reserve the right to reject, rule out of order, or take other appropriate action with respect to any proposal that does not comply with these and other applicable requirements.

We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may find Vapotherm’s most recent Annual Report on Form 10-K, as amended, and Quarterly Report on Form 10-Q attached to this proxy statement as Annex H and Annex I, respectively. Our SEC filings are available to the public at the SEC website at www.sec.gov. You also may obtain free copies of the documents we file with the SEC, including this proxy statement, by going to the investor relations section of our website at www.Vapotherm.com. You may also obtain a copy of these filings at no cost by writing or telephoning us at the following address:

Any person, including any beneficial owner, to whom this proxy statement is delivered may request copies of this proxy statement or other information concerning us, without charge, by written or telephonic request directed to Vapotherm, Inc., 100 Domain Drive, Exeter, NH 03833, Telephone (603) 658-0011 or from the SEC through the SEC website at the address provided above.

Because the Merger is a “going private” transaction, Vapotherm and the SLR Filing Persons have filed with the SEC a Transaction Statement on Schedule 13E-3 with respect to the Merger. The Schedule 13E-3, including any amendments and exhibits filed or incorporated by reference as a part of it, is available for inspection as set forth above. The Schedule 13E-3 will be amended to report promptly any material changes in the information set forth in the most recent Schedule 13E-3 filed with the SEC.

If you have any questions concerning the Merger, the Special Meeting or this proxy statement, would like additional copies of this proxy statement or need help voting your Shares, please contact Vapotherm’s proxy solicitor:

You should rely only on the information contained in this proxy statement and the annexes to this proxy statement in voting on the Merger. We have not authorized anyone to provide you with information that is different from what is contained in this proxy statement. This proxy statement is dated , 2024. You should not assume that the information contained in this proxy statement is accurate as of any date other than that date (or as of an earlier date if so indicated in this proxy statement), and the mailing of this proxy statement to our stockholders does not create any implication to the contrary. This proxy statement does not constitute a solicitation of a proxy in any jurisdiction where, or to or from any person to whom, it is unlawful to make a proxy solicitation.

Your vote is important. Please promptly vote your Shares by completing, signing, dating, and returning your proxy card or by internet or telephone voting as described on your proxy card.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This ROLLOVER AGREEMENT (this “Agreement”), dated as of June 17, 2024, is entered into by and among (i) Veronica Holdings, LLC, a Delaware limited liability company (“Topco”), (ii) Veronica Intermediate Holdings, LLC, a Delaware limited liability company (“Parent” and together with Topco, each a “Parent Party” and, collectively, the “Parent Parties”) and (iii) each of the Persons identified as a Holder on the signature pages hereto (each, a “Holder” and collectively, the “Holders”). Each of Topco, Parent and the Holders are referred to herein collectively as the “Parties.”

WHEREAS, each of the Holders is a party to that certain Loan and Security Agreement, dated as of February 18, 2022 (as amended, modified or supplemented, from time to time, the “Loan Agreement”), by and among SLR Investment Corp., a Maryland corporation (“SLR”), as collateral agent thereunder, the Holders, including SLR, each in its respective capacity as a lender thereunder and each other lender party thereto from time to time, Vapotherm, Inc., a Delaware corporation (the “Company”), HGE Health Care Solutions, LLC, a Delaware limited liability company, Vapotherm Access Care Management Network, LLC, a Delaware limited liability company, and Vapotherm Access Management Services, LLC, an Oklahoma limited liability company, as guarantors thereunder and each other guarantor party thereto from time to time, pursuant to which, on the terms thereof and subject to the conditions therein, among other matters, the Holders have made Term Loans (as defined in the Loan Agreement) to the Company, including Term A Loan (as defined in the Loan Agreement) in the aggregate principal amount of $100,000,000.00 and Term B Loan (as defined in the Loan Agreement) in the aggregate principal amount of $4,000,000.00, and accrued an additional $14,427,491.93 of aggregate PIK Interest (as defined in the Loan Agreement) and other fees in the aggregate amount of (i) $5,912,749.19 accrued on the portion of the Term A Loan subject to the Indebtedness Rollover, (ii) $80,000 accrued on the Term B Loan and (iii) $2,980,000 related to the Remaining Loans, which, for the avoidance of doubt, has not been accrued, in each case, as of the date hereof;

WHEREAS, concurrently with the execution and delivery of this Agreement, Topco, the Company, Parent and Veronica Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), are entering into that certain Agreement and Plan of Merger (as amended, modified or supplemented, from time to time, the “Merger Agreement”), pursuant to which, on the terms thereof and subject to the conditions therein, among other matters, Merger Sub shall merge with and into the Company, with the Company surviving such merger (the “Merger”), and other than any Shares described in Section 2.1(b) of the Merger Agreement and any Dissenting Shares, all of the shares of common stock, $0.001 par value per share, of the Company (“Common Stock”) issued and outstanding and held by the stockholders of the Company as of immediately prior to the effectiveness of the Merger pursuant to the Merger Agreement (“Effective Time”) shall be converted into the right to receive consideration in the amount of $2.18 in cash (less applicable withholding) for each such share of Common Stock;

WHEREAS, (i) concurrently with the execution and delivery of this Agreement and the Merger Agreement, certain stockholders of the Company are entering into Stockholder Rollover Agreements with Topco pursuant to which, on the terms and subject to the conditions therein, such stockholders will contribute their respective Rollover Shares in exchange for Common Units in Topco (“Common Units”) having the rights and privileges described on Exhibit A (the “Equity Term Sheet”), and (ii) prior to the Closing, certain stockholders of the Company (such stockholders, together with the stockholders described in the preceding clause (i), the “Rolling Stockholders”) may enter into Additional Rollover Agreements with Topco pursuant to which, on the terms and subject to the conditions therein, such stockholders will contribute their respective Rollover Shares in exchange for Common Units having the rights and privileges described on the Equity Term Sheet;

WHEREAS, concurrently with the execution and delivery of this Agreement, the Company, the Holders and certain Affiliates of the Holders are entering into that certain Omnibus Warrant Amendment Agreement (as amended, modified or supplemented, from time to time, the “Warrant Amendment Agreement”), pursuant to which, on the terms thereof and subject to the consummation of the Merger, among other matters, the parties thereto shall amend the SLR Warrants that were issued in connection with the Loan Agreement to permit the contribution of such SLR Warrants by the Holders to Topco in each case, on the terms and subject to the conditions described herein, in the Warrant Amendment Agreement and the Merger Agreement;

WHEREAS, on the terms and subject to the conditions of this Agreement, each Holder desires, on the Closing Date and immediately prior to the Effective Time (but subject to the subsequent consummation of the Merger on the terms and subject to the conditions set forth in the Merger Agreement) (the “Rollover Closing”), to contribute, transfer and assign to Topco (a) a portion of Term A Loan set forth opposite the name of such Holder under the heading “Rollover Term A Loan Amount” on Schedule A attached hereto, which in the aggregate across all Holders is equal to $60,000,000.00 as of the date hereof, together with any additional loan amounts under Term A Loan that become outstanding (i) in the ordinary course or (ii) pursuant to the Loan Agreement or the other Loan Documents, in each case of the immediately preceding clauses (i) and (ii), after the date hereof and prior to the Rollover Closing as set forth in any amendment to Schedule A pursuant to Section 2.1 (collectively, the “Rollover Loans”), (b) the amount of the PIK Interest set forth opposite the name of such Holder under the heading “Rollover PIK Interest Amount” on Schedule A attached hereto, which in the aggregate across all Holders is equal to $14,427,491.93 as of the date hereof, together with any additional PIK Interest that accrues (i) in the ordinary course or (ii) pursuant to the Loan Agreement or the other Loan Documents, in each case of the immediately preceding clauses (i) and (ii), after the date hereof and prior to the Rollover Closing as set forth in any amendment to Schedule A pursuant to Section 2.1 (collectively, the “Rollover PIK Interest”), (c) the amount of all Final Fees and other fees, in each case, accrued under the Term A Loan, set forth opposite the name of such Holder under the heading “Rollover Accrued Fees Amount” on Schedule A attached hereto (but excluding any such fees that are included in the Remaining Loans (as defined and provided below)), which in the aggregate across all Holders is equal to $5,912,749.19 as of the date hereof, together with any additional Final Fees or other fees that, in each case, accrue under the Term A Loan (i) in the ordinary course or (ii) pursuant to the Loan Agreement or the other Loan Documents, in each case of the immediately preceding clauses (i) and (ii), after the date hereof and prior to the Rollover Closing as set forth in any amendment to Schedule A pursuant to Section 2.1 (collectively, the “Rollover Accrued Fees” and, together with the Rollover Loans and the Rollover PIK Interest, the “Rollover Indebtedness”, and the transactions described in the preceding clauses (a) through (c), the “Indebtedness Rollover”) and (d) the SLR Warrants set forth opposite such Holder’s name on Schedule A (as applicable, such Holder’s “Rollover Warrants”), together with any additional SLR Warrants that are issued to the Holders (i) in the ordinary course or (ii) pursuant to the Loan Agreement or the other Loan Documents, in each case of the immediately preceding clauses (i) and (ii), after the date hereof and prior to the Rollover Closing as set forth in any amendment to Schedule A delivered pursuant to Section 2.1 (the transactions described in this clause (d), the “Warrant Rollover”) in exchange for an aggregate number of Series A Preferred Units in Topco (the “Exchange Series A Preferred Units”) and Common Units (the “Exchange Common Units” and, together with the Exchange Series A Preferred Units, the “Exchange Units”), which, with respect to each Holder, shall have (x) with respect to each Exchange Series A Preferred Unit, a price per Series A Preferred Unit equal to $2.18 (which shall be the same price per Series A Preferred Unit in Topco paid by Parent Sponsor or its applicable Affiliates in connection with their investment in Topco on the Closing Date) and (y) with respect to each Exchange Common Unit, a price per Common Unit equal to $2.18 (which shall be the same price per Common Unit paid (or deemed to be paid, including through the contribution and exchange of Rollover Shares) by the Rolling Stockholders in connection with their investment in Topco on the Closing Date), and Topco desires, at such time, to issue to such Holder such Exchange Series A Preferred Units and Exchange Common Units in exchange for such Holder’s contribution, transfer and assignment to Topco of such Holder’s Rollover Indebtedness and Rollover Warrants;

WHEREAS, in connection with the Indebtedness Rollover, a portion of Term A Loan in an amount equal to $40,000,000, plus an amount of unaccrued and unpaid fees with respect to such portion of Term Loan A equal to $2,980,000, in each case, as of the date hereof (collectively, such principal and such unaccrued and unpaid fees, the “Remaining Loans”), shall not be included in the Rollover Loans and will remain outstanding following the Rollover Closing;

WHEREAS, subject to the provisions hereof, Parent acknowledges and agrees that, on the Closing Date and in connection with the consummation of the Merger, a portion of the commitment made by Parent Sponsor to Parent under the Equity Commitment Letter will be used by Parent to, among other things, (a) repay, or cause the Surviving Corporation to repay, in full the then-outstanding amount of Term B Loan (which, for the avoidance of doubt, includes any additional loan amounts under the Term B Loan that are issued under the Loan Agreement or any other Loan Document, or in the ordinary course after the date hereof and prior to the Rollover Closing), including any accrued interest, fees, costs and expenses with respect thereto in accordance with the terms of such Term B Loan in effect on the date hereof (collectively, the “Term B Loan Payoff Amount”), (b) pay the Total Merger Consideration pursuant to the Merger Agreement and (c) contribute additional funds to the Surviving Corporation’s available cash balances pursuant to Section 1.7 of the Merger Agreement, in each case, subject to the terms and conditions of the Equity Commitment Letter and the Merger Agreement;

WHEREAS, contemporaneously with the Rollover Closing (but subject to the subsequent consummation of the Merger on the terms and subject to the conditions set forth in the Merger Agreement), Topco, Parent Sponsor or its applicable Affiliates, each of the Holders (or their respective permitted assignees) and the Rolling Stockholders shall enter into an amended and restated limited liability company agreement of Topco that is mutually agreeable to each of them, which shall reflect, among other matters, the terms described on the Equity Term Sheet and the issuance of the Exchange Common Units and the Exchange Preferred Units as set forth herein (the “Topco A&R LLC Agreement”); and

WHEREAS, for United States federal income tax purposes, it is intended that the Indebtedness Rollover and the Warrant Rollover, taken together with the other contributions to Topco contemporaneous therewith, will be treated as a transfer governed by Section 351 of the Internal Revenue Code of 1986, as amended, to the fullest extent permitted under applicable Law (the “Intended Tax Treatment”).

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

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

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

1.2 “Transfer” means, with respect to any Rollover Indebtedness or Rollover Warrants, directly or indirectly, to: (a) sell, transfer, gift, bequeath, exchange, offer, assign, pledge, encumber, subject to a Lien, hypothecate or otherwise dispose of (by merger, consolidation, share exchange, statutory division, statutory conversion, statutory domestication, by tendering into any tender or exchange offer, by testamentary disposition, by operation of law or otherwise), such Rollover Indebtedness or Rollover Warrant (as the case may be), (b) to enter into any contract, option or other agreement, arrangement or understanding with respect to any transaction described in the immediately preceding clause (a) of this definition or (c) enter into any swap, hedge, derivative or other arrangement that transfers to another Person, in whole or in part, any of the economic consequences of Beneficial Ownership of such Rollover Indebtedness or Rollover Warrants (as the case may be), whether settled by delivery of such Rollover Indebtedness or Rollover Warrants, or other securities, in cash or otherwise. The terms “Transferring”, “Transferee”, “Transferred” or similar words shall have correlative meanings to “Transfer.”

2.1 Rollover. On the terms and subject to the conditions set forth herein, (a) each Holder agrees, at the Rollover Closing, to contribute, transfer and assign to Topco such Holder’s Rollover Indebtedness and Rollover Warrants, in exchange for the issuance by Topco to such Holder of such Holder’s Exchange Series A Preferred Units and Exchange Common Units, and each Holder shall execute and deliver to Topco a counterpart signature page to the Topco A&R LLC Agreement and such other documents and instruments reasonably necessary to effect the Indebtedness Rollover and Warrant Rollover in accordance with the terms hereof, and (b) Topco agrees, at such time, to issue to such Holder such Holder’s Exchange Series A Preferred Units and Exchange Common Units, free and clear of all Liens (other than restrictions on transfer arising under the Securities Act or other applicable securities Laws or set forth in the Topco A&R LLC Agreement), in exchange for the contribution, transfer and assignment by such Holder to Topco of such Holder’s Rollover Indebtedness and Rollover Warrants, and shall execute and deliver to such Holder all documents and instruments reasonably necessary to effect such issuance, and in connection with the Indebtedness Rollover and the Warrant Rollover, each Holder’s Remaining Loans shall not be included in the Rollover Loans and will remain outstanding following the Rollover Closing. The number of Exchange Series A Preferred Units and Exchange Common Units that will be issued by Topco to each Holder at the Rollover Closing is set forth opposite such Holder’s name on Schedule A; provided, that to the extent that additional SLR Warrants are issued to the Holders (“Additional Rollover Warrants”), additional loan amounts under Term A Loan become outstanding under the Loan Agreement or additional PIK Interest, Final Fees or other fees, in each case, that accrue under the Term A Loan (such additional loan amounts, PIK Interest, Final Fees or other fees that are not otherwise included in the Remaining Loans, collectively, “Additional Rollover Indebtedness”), in each case, pursuant to the Loan Agreement or the other Loan Documents, or in the ordinary course during the period beginning after the date hereof and ending as of immediately prior to the Rollover Closing, (i) the Holders, Topco and Parent shall amend Schedule A in writing to reflect the Holders’ good faith calculation of (x) the resulting increased number of Rollover Warrants attributable to the issuance of any Additional Rollover Warrants, or increased amount of Rollover Loans, Rollover PIK Interest and Rollover Accrued Fees attributable to such Additional Rollover Indebtedness, and (y) the allocation of Series A Preferred Units and Common Units issuable to each Holder in exchange for such Holder’s Additional Rollover Warrants and/or Additional Rollover Indebtedness (as applicable), which determination shall be made in accordance with the methodology used to determine the number and combination of Series A Preferred Units and Common Units issuable to each Holder in exchange for such Holder’s Rollover Warrants and Rollover Indebtedness as set forth on Schedule A as of the date hereof, in each case of the immediately preceding clauses (x) and (y), as determined in accordance with this Section 2.1 by the Holders after good faith consultation with Topco. Notwithstanding anything herein to the contrary, (A) Topco and Parent shall promptly execute and deliver any such amendment that is delivered to Topco and Parent at least one day prior to the Closing Date, (B) neither Topco, Parent nor any of their respective Affiliates or representatives shall be permitted to contest or dispute such good faith calculations, and (C) to the extent there is any such disagreement or dispute, the Holders’ calculations shall control and SLR, on behalf of Topco, Parent, and the other Parties shall, subject to the Company’s consultation rights set forth in the SLR Financing Agreements (as defined in the Merger Agreement), be permitted to unilaterally amend Schedule A to reflect such calculations, in each case of the immediately preceding clauses (B) and (C), so long as such calculations are made in accordance with this Section 2.1, and (ii) at the Rollover Closing, Topco shall issue to each applicable Holder an additional number of Exchange Series A Preferred Units at a price per Series A Preferred Unit equal to $2.18 and Exchange Common Units at a price per Common Unit equal to $2.18, and such additional Exchange Series A Preferred Units and additional Exchange Common Units shall, collectively, have an aggregate value equal to the aggregate value of such Additional Rollover Indebtedness and Additional Rollover Warrants (taken together).

2.2 Rollover Closing. The consummation of the transactions contemplated hereby shall take place on the Closing Date immediately prior to the Effective Time, subject to the subsequent occurrence of the Closing (and, for avoidance of doubt, consummation of the Merger) in accordance with the Merger Agreement and subject to the satisfaction (or waiver by the applicable party) of the conditions to the Rollover Closing set forth in Section 2.3 or Section 2.4 herein (as applicable).

2.3 Rollover Closing Conditions (Holders). Each Holder’s obligation to consummate the contribution to Topco of such Holder’s Rollover Indebtedness and Rollover Warrants at the Rollover Closing pursuant to Section 2.1 is subject to the following conditions precedent:

2.4 Rollover Closing Conditions (Topco). Topco’s obligation to issue the Exchange Units to the Holders (or their respective permitted assignees) at the Rollover Closing pursuant to Section 2.1 is subject to the following conditions precedent:

2.5 Equity Financing. Subject to the provisions hereof, Parent acknowledges and agrees that, on the Closing Date and in connection with the consummation of the Merger, a portion of the commitment made by Parent Sponsor to Parent under the Equity Commitment Letter will be used by Parent to, among other things, (a) repay, or cause the Surviving Corporation to repay, in full the Term B Loan Payoff Amount, (b) pay the Total Merger Consideration pursuant to Section 2.8 of the Merger Agreement and (c) contribute additional funds to the Surviving Corporation’s available cash balances pursuant to Section 1.7 of the Merger Agreement, in each case, in accordance with the terms and conditions of the Equity Commitment Letter.

(a) At any time prior to the consummation of the Merger, Topco and Parent shall not, and none of Topco or Parent shall permit any of their respective successors or assigns to, (i) amend, modify or waive any provision of the Merger Agreement or the Equity Commitment Letter without the prior written consent of SLR (not to be unreasonably withheld, conditioned or delayed) or (ii) enter into, amend, modify, waive or terminate any provision of any Rollover Agreement (other than this Agreement) or any other purchase agreement or subscription agreement for equity interests in Topco or its subsidiaries without the prior written consent of SLR (not to be unreasonably withheld, conditioned or delayed).

(b) At any time prior to the earlier of the consummation of the Merger and the valid termination of the Merger Agreement in accordance with its terms, except as otherwise provided for or permitted by this Agreement, the Merger Agreement or any of the other Transaction Documents or SLR Financing Agreements, the Holders shall not, and none of the Holders shall permit any of their respective Affiliates, successors or assigns to, amend, modify or waive any provision of the Loan Agreement or any other Loan Document without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed); provided for the avoidance of doubt, the Holders may amend, modify or waive the Loan Agreement and any of the other Loan Documents without such prior written consent (i) to extend the maturity date thereunder (including in connection with any extension of the Outside Date under the Merger Agreement or in connection with the entry of, adoption of or promulgation of any Law, Action or Order that delays or prohibits, or purports to delay or prohibit, the consummation of the Closing), (ii) in connection with any pending or threatened Action under the Merger Agreement or any other Transaction Document or SLR Financing Agreement between Parent or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand (including any Action relating to Parent’s failure to consummate the Closing by the time required pursuant to Section 1.2 of the Merger Agreement), (iii) as required to comply with any applicable Law or Order, or (iv) to cure any event of default or breach under the Loan Agreement or any of the other Loan Documents; provided, that solely with respect to the immediately preceding clauses (iii) and (iv), the Holders shall (A) give Topco reasonably prompt written notice of such Law or Order (in the case of the immediately preceding clause (iii)) or event of default or breach (in the case of the immediately preceding clause (iv)), and (B) provide Topco with a reasonable opportunity to review and comment in good faith on such proposed amendment, modification or waiver (and the Holders shall consider any such reasonable comments in good faith).

2.7 Notification and Consultation. If Topco, Parent, Merger Sub or any of their respective Affiliates receives any notices, communications, filings or other documents (including, without limitation, any drafts thereof) from any third party (including the Company or the Rolling Stockholders) in connection with the Merger Agreement or any other Transaction Document or any of the Contemplated Transactions, Topco shall promptly (and in any event within 24 hours of receipt thereof) provide a copy thereof to SLR. If it is necessary or appropriate for any of Topco, Parent or Merger Sub (or their applicable Affiliates) to prepare, provide, file or submit any notice, communication, filing or document pursuant to the Merger Agreement or any other Transaction Document or in connection with any of the Contemplated Transactions, such Person shall provide (or cause its applicable Affiliate to provide) a draft thereof to SLR reasonably in advance of finalizing, submitting, issuing or releasing such notice, communication, filing or document to permit SLR and its representatives a reasonable amount of time to review and comment thereon and shall incorporate any reasonable comments proposed by SLR or any of its representatives prior to such finalization, submission, issuance or release. Without limiting the foregoing, (a) each of Topco, Parent and Merger Sub shall, and shall cause their respective Affiliates and its and their respective representatives to, reasonably consult in good faith with SLR, and take into consideration any suggestions, views or advice proposed by SLR in good faith, in connection with any actions, decisions or matters relating to any of the Transaction Documents or Contemplated Transactions involving Topco, Parent or Merger Sub (or their applicable Affiliates that are parties to the Transaction Documents), and (b) the foregoing provisions are intended to apply in respect of any regulatory filings (including, without limitation, filings with the SEC, such as any proxy statement, Schedule 13E-3 or Form 8-K) and public announcements or press releases relating to any of the Transaction Documents or the Contemplated Transactions. Nothing in this Section 2.7 requires any Person to disclose any such notices, filings or other documents to the extent (i) provision of such information would reasonably be expected to violate any of such disclosing Person’s or its Affiliates’ respective bona fide obligations of confidentiality under any applicable Contract or Law (other than any confidentiality obligations arising under the Merger Agreement or the Confidentiality Agreement), or (ii) that furnishing such information would in the reasonable opinion of such disclosing Person (after consulting outside counsel) result in loss of legal protection, including the attorney-client privilege and work product doctrine; provided, however, in each case of the immediately preceding clauses (i) and (ii), such Person will cooperate with SLR in good faith and use reasonable best efforts to permit disclosure of the applicable information to SLR to the extent it would not violate applicable Contracts or Laws or waiver of privilege. The Holders will promptly (and in any event within twenty four (24) hours) notify Parent in the event the Holders become aware of any violation or default by the Company or any of the Company’s Subsidiaries under the Loan Agreement or the other Loan Documents that would reasonably be expected to result in the failure of any condition to the obligations of Parent or Merger Sub to effect the Merger set forth in Article VI of the Merger Agreement.

2.8 Contributions; Cancellation of Rollover Warrants. Immediately following the consummation of the Rollover Closing, Topco shall contribute, assign, transfer, convey and deliver to Parent all of Topco’s right, title and interest in and to the Rollover Indebtedness, the Rollover Warrants and all of the Rollover Shares received by Topco pursuant to the other Rollover Agreements, and Parent shall accept and assume such contribution, assignment, transfer, conveyance and delivery (the “Topco Contribution”). Immediately following the Topco Contribution and the consummation of the Merger, Parent shall contribute, assign, transfer, convey, and deliver to the Surviving Corporation all of Parent’s right, title and interest in and to the Rollover Indebtedness and each of the Rollover Warrants to the Surviving Corporation pursuant to a contribution agreement, written consent or other document in form and substance reasonably satisfactory to SLR and Topco (the “Parent Contribution”). Immediately following the Parent Contribution, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) cancel and retire the Rollover Indebtedness and the Rollover Warrants (without any conversion thereof) and the Rollover Indebtedness and each of the Rollover Warrants will cease to exist, and no payment or distribution will be made with respect thereto.

2.9 Restrictions on Transfer. Except as expressly provided for in this Agreement (including, without limitation, Sections 2.1 and 13 hereof), each Holder hereby covenants and agrees that, prior to the earlier of the Rollover Closing and the valid termination of the Merger Agreement in accordance with its terms, such Holder shall not, directly or indirectly, (a) Transfer (or cause or permit the Transfer of), either voluntarily or involuntarily, or enter into any Contract, option or other arrangement or understanding with respect to the Transfer of any of the Rollover Indebtedness or Rollover Warrants, or, in each case, any interest therein, including, without limitation, any swap transaction, option, warrant, forward purchase or sale transaction, futures transaction, cap transaction, floor transaction, collar transaction or any other similar transaction (including any option with respect to any such transaction) or combination of any such transactions, in each case involving any of the Rollover Indebtedness or Rollover Warrants, (b) deposit any of the Rollover Indebtedness or Rollover Warrants into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect to the Rollover Indebtedness or Rollover Warrants that is inconsistent with such Holder’s obligations under this Agreement, or (c) commit or agree to commit (in each case, in any Contract) to take any of the actions referred to in the immediately preceding clauses (a) or (b). Any purported Transfer, act or omission in violation of this Section 2.9 shall be void ab initio and of no force or effect. This Agreement and the obligations hereunder shall be binding upon any Person to which legal or Beneficial Ownership of the Rollover Indebtedness or Rollover Warrants or any interest therein or rights with respect thereto shall pass, whether by operation of Law or otherwise, including, any Holder’s heirs, devisees, successors and assigns.

Section 3. Representations and Warranties of Topco. Topco hereby represents and warrants to the Holders as of the date of this Agreement and the Rollover Closing as follows (except to the extent any such representation and warranty expressly speaks of another date, in which case Topco makes such representation and warranty to the Holders as of such date):

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

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

3.3 Exchange Units; Capitalization. All of the Common Units and Series A Preferred Units to be issued to the Holders as contemplated by this Agreement, if and when issued and delivered in accordance with the terms of this Agreement, will be duly authorized and validly issued Common Units and Series A Preferred Units of Topco, free and clear of any Liens (other than restrictions on transfer under the Securities Act or other applicable securities Laws or set forth in the Topco A&R LLC Agreement). The offering and issuance of the Exchange Units has complied and will comply in all material respects with all applicable Laws. All of the Series A Preferred Units to be issued to the Holders (or their respective permitted assignees) pursuant this Agreement shall (a) be issued on the same economic terms as the Series A Preferred Units issued to Parent Sponsor or its Affiliates on the Closing Date, (b) afford SLR (or its applicable Affiliate(s)) the rights and privileges to be granted to SLR (or such Affiliate(s)) under the Topco A&R LLC Agreement (as described in the Equity Term Sheet) and (c) be issued at a price per Series A Preferred Unit equal to $2.18 and a price per Common Unit equal to $2.18. As of immediately following the consummation of the Closing, (i) SLR (taken together with its Affiliates) shall, collectively, hold at least sixty percent (60%) of the issued and outstanding Series A Preferred Units, (ii) the only holders of Series A Preferred Units will be the Holders (or their respective permitted assignees), Parent Sponsor (or its applicable Affiliates that subscribe for Series A Preferred Units on the Closing Date) and certain other Persons to subscribe for Series A Preferred Units on the Closing Date (as mutually agreed in writing between SLR and Topco) and (iii) there will be no issued and outstanding equity securities of Topco that are senior to the Series A Preferred Units. All of the Common Units to be issued to the Holders (or their respective permitted assignees) pursuant to this Agreement shall be issued on the same economic terms as Common Units issued to the Rolling Stockholders in accordance with the Rollover Agreements (other than this Agreement).

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

3.5 Additional Representations. Each of Topco, Parent and Merger Sub was formed in connection with the negotiation, execution and delivery of this Agreement, the Merger Agreement, the other Rollover Agreements and the other Transaction Documents and, other than in connection with the negotiation, execution and delivery of this Agreement, the Merger Agreement, the other Rollover Agreements and the other Transaction Documents, each of Topco, Parent and Merger Sub has not (a) conducted any business, (b) incurred any expenses, obligations or liabilities (whether accrued, absolute, contingent, unliquidated or otherwise), (c) owned any assets (other than Topco’s ownership of equity securities in Parent and Parent’s ownership of equity securities in Merger Sub), (d) entered into any contracts or agreements or (e) violated any applicable laws or governmental rules or regulations. Topco is a direct, wholly owned subsidiary of Parent Sponsor or its applicable Affiliates that subscribe for Series A Preferred Units on the Closing Date. Parent is a direct, wholly owned subsidiary of Topco. Merger Sub is a direct, wholly owned subsidiary of Parent.

3.6 Non-Reliance. Topco acknowledges and agrees that no Holder (in such capacity), or such Holder’s Affiliates or representatives, has made any representation or warranty, express or implied, to Topco with respect to the subject matter of this Agreement that is not set forth in this Agreement, the Topco A&R LLC Agreement or any other agreement entered into between such Holder and Topco and that Topco is not relying on any such representation or warranty that is not set forth herein or therein.

Section 4. Representations and Warranties of Parent. Parent hereby represents and warrants to the Holders as of the date of this Agreement and the Rollover Closing as follows (except to the extent any such representation and warranty expressly speaks of another date, in which case Parent makes such representation and warranty to the Holders as of such date):

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

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

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

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

4.5 Non-Reliance. Parent acknowledges and agrees that no Holder (in such capacity), or such Holder’s Affiliates or representatives, has made any representation or warranty, express or implied, to Parent with respect to the subject matter of this Agreement that is not set forth in this Agreement or any other agreement entered into between such Holder and Parent and that Parent is not relying on any such representation or warranty that is not set forth herein or therein.

Section 5. Representations and Warranties of the Holders. Each Holder hereby represents and warrants to Topco and Parent, severally and not jointly or jointly and severally, solely with respect to itself, as of the date of this Agreement and as of the Rollover Closing as follows (except to the extent any such representation and warranty expressly speaks of another date, in which case such Holder makes such representation and warranty to Topco and Parent as of such date):

5.1 Organization. Such Holder is a corporation, limited liability company or limited partnership duly incorporated, formed or organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, formation or organization. Such Holder has all requisite corporate, limited liability company or limited partnership power and authority to own, lease and operate its properties and assets and to carry on its business as presently conducted, except to the extent that a failure of such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on such Holder’s ability to consummate the transactions contemplated herein.

5.2 Ownership of the Rollover Warrants. Such Holder is the sole record and beneficial owner of such Holder’s Rollover Warrants, free and clear of all Liens, except for (a) transfer restrictions of general applicability as may be provided under the Securities Act or other applicable securities Laws and (b) transfer restrictions set forth in the Rollover Warrants or the Company Organizational Documents.

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

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

5.5 Financial Status. Such Holder is an “accredited investor” as such term is defined in Regulation D promulgated under the Securities Act. Such Holder is able to bear the economic risk of an investment in of such Holder’s Exchange Units for an indefinite period of time, has adequate means of providing for its current financial needs and personal contingencies, understands that such Holder may not be able to liquidate its investment in Topco in an emergency, if at all, and can afford a complete loss of the investment. Such Holder has such knowledge and experience in financial and business matters that such Holder is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an indefinite period of time.

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

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

Section 6. Agreements and Acknowledgements of the Holders. Each Holder agrees and acknowledges to the Parent Parties, severally and not jointly or jointly and severally, solely with respect to itself, as of the date of this Agreement and as of the Rollover Closing as follows:

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

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

6.3 Newly Formed Entity. Such Holder recognizes that the investment in Topco is speculative and involves a high degree of risk.

6.4 Sole Consideration. Such Holder acknowledges and agrees that such Holder’s Exchange Units shall constitute the sole consideration that such Holder is entitled to receive in exchange for or upon conversion of such Holder’s Rollover Indebtedness and Rollover Warrants.

6.5 Brokers and Finders. Neither such Holder nor anyone acting on such Holder’s behalf has paid any brokers’ or finders’ fees or commission to any Person in connection with the acquisition of the Exchange Units for which Topco or any of its subsidiaries would reasonably be expected to be liable following the Closing.

6.6 Independent Investigation. Such Holder acknowledges and agrees that none of Topco, Parent or any of their respective Affiliates or Representatives is advising such Holder as to any tax, legal, investment, accounting or regulatory matters in any jurisdiction, none of Topco, Parent or any of their respective Affiliates or Representatives shall have any responsibility or liability to such Holder with respect thereto and none of Topco, Parent or any of their respective Affiliates or Representatives is making any representation or warranty as to the tax treatment of the Indebtedness Rollover or the contribution of the Rollover Warrants contemplated hereby. Such Holder acknowledges and agrees that it has consulted with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated by this Agreement, and none of Topco, Parent or any of their respective subsidiaries, Affiliates or Representatives shall have responsibility or liability to such Holder with respect thereto.

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

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

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

7.3 Each party hereto irrevocably consents to the service of process outside the territorial jurisdiction of the courts referred to in Section 7.1 in any such action or proceeding by mailing copies thereof by registered United States mail, postage prepaid, return receipt requested, to its address as specified in or pursuant to Section 10. However, the foregoing will not limit the right of a party hereto to effect service of process on the other party by any other legally available method

Section 8. WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATION OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.

Section 9. Specific Performance. The parties hereto agree that irreparable damage (for which monetary relief, even if available, would not be an adequate remedy) would occur in the event that any of the provisions of this Agreement were not performed by the parties hereto in accordance with their specific terms or were otherwise breached. It is accordingly agreed that (a) the Parties and any third party beneficiaries hereof shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to seek to enforce specifically the terms and provisions hereof in any court of competent jurisdiction without proof of damages or otherwise, and (b) the right to seek specific performance and other equitable relief is an integral part of the transaction and without that right, none of Topco, Parent or the Holders would have entered into this Agreement. Each of the Parties hereby (i) waives any defense that a remedy at Law would be adequate, (ii) waives any requirement under any Law to post a bond or other security as a prerequisite to obtaining equitable relief, and (iii) agrees not to assert that a remedy of specific performance or other equitable relief is unenforceable, invalid, contrary to law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the parties hereto otherwise have an adequate remedy at Law.

Section 10. Notices. All notices and other communications hereunder from Topco or Parent, on the one hand, to any of the Holders, on the other hand, or vice versa, shall be deemed delivered and effective (a) when given personally, (b) on the third (3rd) Business Day after being mailed by first-class registered or certified mail, postage prepaid, (c) when sent via email (provided that no “bounce back” or other notice of non-delivery is generated), or (d) on the first Business Day following delivery to a reliable overnight courier service, courier fee prepaid, in any case at such address as may have been furnished to Topco, Parent or any of the Holders, as the case may be, in writing by Topco, Parent or such Holder from time to time in accordance with the provisions of this Section 10.

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

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

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

(b) Notice to the Holders shall be addressed as follows until Topco receives notice of a change in address:

SLR Investment Corp.
500 Park Avenue, 3rd Floor
New York, NY 10022
Attention: Anthony Storino

Latham & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
Attention: Haim Zaltzman

Section 11. Waiver. This Agreement and any term hereof may be changed, waived, discharged or terminated (either generally or in a particular instance and either retroactively or prospectively) only by an instrument in writing signed by the party hereto against which enforcement of such change, waiver, discharge or termination is sought.

Section 12. Amendment. Without limiting the Parties’ respective obligations to amend Schedule A pursuant to Section 2.1 (or SLR’s right to amend Scheduled A pursuant to clause (C) of Section 2.1), this Agreement may not be amended, modified, waived or terminated except by an instrument in writing, signed by Topco and SLR.

Section 13. Assignment. No party hereto shall have the right or the power to assign or delegate any provision of this Agreement except with the prior written consent of Topco, in the case of an assignment or delegation by any Holder, or with the prior written consent of the Holders, in the case of an assignment or delegation by Topco or Parent; provided, that each Holder may Transfer its Rollover Indebtedness or Rollover Warrants, and/or assign its rights to receive the Exchange Units issuable to such Holder at the Rollover Closing pursuant to Section 2.1, to such Holder’s Affiliates; provided, further, that no such Transfer or assignment shall relieve the applicable assigning Holder of its obligations hereunder. Except as provided in the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties’ respective successors, assigns, executors and administrators.

Section 14. Binding Effect; No Third-Party Beneficiaries. Except as expressly set forth in the SLR Financing Agreements, nothing in this Agreement shall confer any rights upon any Person other than the parties hereto and each such party’s respective heirs, successors and permitted assigns, except as otherwise set forth herein.

Section 15. Counterparts. This Agreement may be executed in counterparts, including by facsimile or other means of electronic transmission (such as by DocuSign, electronic mail in “.pdf” form), each of which shall be deemed an original and all of which taken together, shall constitute one and the same document.

Section 16. Headings; Interpretive Matters. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning or interpretation of any provision of this Agreement. Any reference to $ shall mean U.S. dollars, which is the currency used for all purposes in this Agreement. Any reference to the singular or to “him”, “her”, “it”, “itself”, or other like references, and references in the plural or the neuter, feminine or masculine reference, as the case may be, shall also, when the context so requires, be deemed to include the plural or singular, or the neuter, masculine or feminine reference, as the case may be. The words such as “herein,” “hereinafter,” “hereof” and “hereunder” that are used in this Agreement refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. The word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any provision of this Agreement. Any reference in this Agreement to a “day” or a number of “days” (without explicit reference to “Business Days”) shall be interpreted as a reference to a calendar day or number of calendar days. If any action is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action may be deferred until the next Business Day.

Section 17. Severability. If any provision of this Agreement, or the application thereof to any party hereto or circumstance is held invalid or unenforceable, the remainder of this Agreement, and the application of such provision to other parties hereto or circumstances, shall not be affected thereby, and to such end, the provisions of this Agreement are agreed to be severable.

Section 18. Entire Agreement. This Agreement, the Merger Agreement, the Equity Commitment Letter, the Warrant Amendment Agreement and the Loan Agreement and the schedules and exhibits and other documents delivered by the parties hereto and thereto in connection herewith and therewith, contain the complete agreement among the parties hereto and thereto with respect to the transactions contemplated hereby and supersede all prior agreements and understandings between the parties hereto with respect hereto.

Section 19. Non-Recourse. Notwithstanding anything herein to the contrary, this Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or to the extent related to this Agreement may only be brought against the entities that are expressly parties hereto and their respective successors and assigns. Except as set forth in the immediately preceding sentence, no past, present or future director, officer, manager, employee, incorporator, member, partner, stockholder, equityholder, controlling Person, Affiliate, agent, attorney, advisor or representative of any party hereto, and no past, present or future director, officer, manager, employee, incorporator, member, partner, stockholder, equityholder, controlling person, Affiliate, agent, attorney, advisor or representative of any of the foregoing (each, a “Non-Recourse Party”) shall have any liability for any obligations or liabilities of any Party under this Agreement (whether in tort, contract or otherwise). The Parties acknowledge and agree that the Non-Recourse Parties are express third party beneficiaries of this Section 19, each of whom may enforce the provisions of this Section 19.

Section 20. Public Announcements. Each of the Holders, on the one hand, and the Parent Parties, on the other hand, shall not, shall cause each of their Subsidiaries not to, and shall direct their respective controlled Affiliates and Representatives not to, issue any press release or announcement concerning the Contemplated Transactions without the prior consent of SLR (in the case of any such press release or announcement to be made by the Parent Parties or their Affiliates or Representatives) or Topco (in the case of any such press release or announcement to be made by the Holders or their Affiliates or Representatives), except any release or announcement required by applicable Law or any rule or regulation of the Nasdaq Global Select Market or any stock exchange to which the relevant Party (or such Party’s applicable Affiliate or Representative) is subject, in which case such Party (or its applicable Affiliate or Representative) required to make the release or announcement shall use reasonable best efforts to allow the other Parties reasonable time to comment on such release or announcement in advance of such issuance and shall consider in good faith the comments of the applicable Party (or such Party’s applicable Affiliate or Representative) therein. The restrictions of this Section 20 do not apply to any press release or announcement made by any of the Parties or their Affiliates to the extent that such press release or announcement is consistent with any press release or announcement previously made in compliance with this Section 20, so long as any such press release or announcement remains true and correct in all material respects and the other Parties have not requested in writing that the party that initially made such press release or announcement discontinue the use or public communication of such press release or announcement. Notwithstanding the foregoing, each Party and its respective Affiliates may provide ordinary course communications regarding this Agreement and the Contemplated Transactions to existing or prospective general and limited partners, equity holders, members, managers and investors of any Affiliates of such Person, in each case, who are subject to customary confidentiality restrictions.

Section 21. Termination of Agreement. The Holder’s obligation to contribute the Rollover Indebtedness and Rollover Warrants to Topco at the Rollover Closing pursuant to Section 2.1, and Topco’s obligation to issue the Exchange Units to the Holders (or their respective permitted assignees) at the Rollover Closing pursuant to Section 2.1, are, in each case, subject to the subsequent consummation of the Merger in accordance with the terms of the Merger Agreement (as described in Sections 2.3(c) and 2.4(c)). This Agreement (other than Sections 7 to 21) shall terminate automatically, without further action by the parties hereto and immediately upon valid termination of the Merger Agreement in accordance with its terms prior to the Effective Time. Upon such termination, this Agreement (other than Sections 7 to 21) shall not have any further force and effect and no party hereto shall have any further liability or obligation hereunder; provided that termination of this Agreement shall not relieve any party hereto from liabilities or damages arising out of its intentional breach of this Agreement by such party hereto prior to the time of termination, and each other party hereto will be entitled to any remedies at law or in equity to recover losses arising from such breach.

Section 22. Intended Tax Treatment. Topco and Parent agree to, and to cause their respective Affiliates to, use commercially reasonable efforts to take such actions (or not to take such actions) as may be necessary, in Topco’s or Parent’s good faith judgment, to achieve and to preserve the Intended Tax Treatment.

Section 23. Tax Reporting. Topco, Parent and each of the Holders will not, and Topco, Parent and each of the Holders will cause their respective Affiliates not to, take any position on any federal income Tax Return, or take any other reporting position (including on or with respect to any financial statements), that is inconsistent with the Intended Tax Treatment, unless otherwise required by a “final determination” (as defined in Section 1313(a)(1) of the Internal Revenue Code of 1986, as amended, or any similar provision of foreign, state or local law, as appropriate) or as otherwise required by applicable Law.

Section 24. Withholding. In the event Topco, Parent, the Company, or any of their respective subsidiaries or Affiliates are required to deduct and withhold any Taxes in respect of Rollover PIK Interest or Rollover Accrued Fees (or any Tax authority takes the position that any such deduction or withholding was required), the Holders shall pay an amount in cash to Topco equal to such amounts as are required to be withheld and shall otherwise indemnify and hold harmless Topco, Parent, the Company, and any of their respective subsidiaries or Affiliates against any Liability for any such withholding Taxes.

Section 25. Further Assurances. Topco, Parent and each of the Holders will take such further actions as may be reasonably necessary to implement the transactions contemplated by this Agreement.

Section 26. Survival of Representations and Warranties. All representations and warranties contained in this Agreement shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

Section 27. Other Acknowledgement. Each Parent Party acknowledges and agrees that, notwithstanding anything contained in any of the Transaction Documents or the SLR Financing Agreements to the contrary, SLR, the other Holders and their respective Affiliates may provide ordinary course communications regarding the Transaction Documents, the SLR Financing Agreements and the Contemplated Transactions to existing or prospective general and limited partners, equityholders, members, managers and investors of any Affiliates of such Person, in each case, who are subject to customary confidentiality restrictions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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