Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 1 of 26

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1 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 1 of 26 IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION In re: HEALTH DIAGNOSTIC LABORATORY, INC., et al., Debtors, 1 Chapter 11 Case No (KRH) (Jointly Administered) RICHARD ARROWSMITH, AS LIQUIDATING TRUSTEE OF THE HDL LIQUIDATING TRUST, Plaintiff, Adversary Proceeding No. v. LEMBERG LAW, LLC, EILEEN ARENDT, LINDA CANCEL, EMILY REED, LEAH VOLESKY, CYNTHIA PORTER, JOLENE WIXOM, DANI SCHURGER, LARA TEBO, TARA ROECKS, KELLY PORTER, TERRI BARBANO, CALICO SVENDSEN, NICOLETTE CALDWELL, LORINNET CHANCE, TONI MERRIOTT, TIFFANIE 1 The Debtors, along with the last four digits of each Debtor s federal tax identification number, are: Health Diagnostic Laboratory, Inc. (0119), Central Medical Laboratory, LLC (2728), and Integrated Health Leaders, LLC (2434). Cullen D. Speckhart (VSB No ) WOLCOTT RIVERS GATES 919 E. Main Street, Richmond, VA Bendix Road, Ste. 300 Virginia Beach, VA Telephone: (757) Direct: (757) cspeckhart@wolriv.com Counsel to Richard Arrowsmith, Liquidating Trustee of the HDL Liquidating Trust Richard S. Kanowitz (admitted pro hac vice) Evan M. Lazerowitz (pro hac vice to be filed) COOLEY LLP 1114 Avenue of the Americas New York, New York Telephone: (212) Facsimile: (212) rkanowitz@cooley.com elazerowitz@cooley.com Counsel to Richard Arrowsmith, Liquidating Trustee, and the Liquidating Trust Oversight Committee.

2 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 2 of 26 PAPICH, CHRISTINA LAGROU, BARBARA K. MARKS, KIMBERLY DIXON, KORYNNE BRAY, JOSEPH DELFINO, KIRK D. MILLER, P.S., KRISTIN WICKSTROM, AND NORTHWEST HEALTH SUMMIT, PS D/B/A WOMEN S HEALTH CONNECTION, PS, Defendants. VERIFIED COMPLAINT Plaintiff Richard Arrowsmith, in his capacity as Liquidating Trustee of the HDL Liquidating Trust (the Plaintiff or the Liquidating Trustee ), appointed pursuant to the confirmed Modified Second Amended Plan of Liquidation (the Plan ) of Health Diagnostic Laboratory, Inc., and its affiliated debtors and debtors in possession (the Debtors, or HDL ) in these jointly administered bankruptcy cases (the Chapter 11 Cases or the Cases ), by his undersigned counsel, hereby files this Verified Complaint (the Complaint ), against the abovecaptioned defendants (the Defendants ), and respectfully alleges as follows: I. NATURE OF THE ACTION 1. Plaintiff brings this action against the Defendants to, among other relief sought, obtain an injunction enjoining the Defendants from interfering with HDL s collection of accounts receivable that constitute estate assets and a judgment holding the Defendants in contempt for willfully violating the automatic stay found in section 362(a) of Title 11 of the United Stated Code (the Bankruptcy Code ). 2. Plaintiff also seeks related declaratory relief confirming that the accounts receivable constitute estate assets and are debts that are owed to Plaintiff, that alleged prepetition release language is inoperative, and that Plaintiff is not required to cease and desist from collecting 2

3 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 3 of 26 the accounts receivable. In the alternative, Plaintiff seeks to avoid the alleged prepetition releases as fraudulent transfers. II. PARTIES 3. Plaintiff is the Liquidating Trustee and estate representative of the Debtors. 4. Lemberg Law, LLC ( Lemberg Law ) is a Connecticut limited liability company with its principal place of business in Wilton, Connecticut. 5. Sergei Lemberg, Esq., is a member of Lemberg Law. 6. Upon information and belief, defendants Eileen Arendt, Linda Cancel, Emily Reed, Leah Volesky, Cynthia Porter, Jolene Wixom, Dani Schurger, Lara Tebo, Tara Roecks, Kelly Porter, Terri Barbano, Calico Svendsen, Nicolette Caldwell, Lorinnet Chance, Toni Merriott, Tiffanie Papich, Christina Lagrou, Barbara K. Marks, Kimberly Dixon, Korynne Bray, Joseph Delfino, and Kristin Wickstrom (the Consumers ) are individuals whose healthcare providers submitted requisitions for certain laboratory tests on patient blood samples to HDL for analysis. 7. Kirk D. Miller, P.S. ( Miller ) is a Washington professional services corporation with its principal place of business in Spokane, Washington. 8. Northwest Health Summit, PS d/b/a Women s Health Connection, PS ( Women s Health ) is a Washington professional services corporation with its principal place of business in Spokane Valley, WA. III. JURISDICTION AND VENUE 9. The Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 28 U.S.C. 1334(b). 10. Venue is proper pursuant to 28 U.S.C and

4 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 4 of This matter is a core proceeding within the meaning of 28 U.S.C. 157 (b)(2)(a), (G), (H), and (O). 12. The predicates for the relief requested herein are Bankruptcy Code sections 105(a), 362(a), 362(k), 544(b), 548, and 550, and Rules 7001 and 7065 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ). IV. STATEMENT OF FACTS A. Chapter 11 Cases 13. On June 7, 2015 (the Petition Date ), each of the Debtors filed with the Court its respective voluntary petition for relief under chapter 11 of the Bankruptcy Code, commencing the above-captioned Chapter 11 Cases. 14. After the Petition Date, the Debtors continued to operate and manage their properties as debtors-in-possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. On June 9, 2015, the Court entered an order authorizing the joint administration of these Chapter 11 Cases [Docket No. 42]. 15. On June 16, 2015, the United States Trustee for the Eastern District of Virginia (the U.S. Trustee ) appointed the statutory committee of unsecured creditors (the Committee ). 16. On May 12, 2016, this Court entered an order confirming the Plan (the Confirmation Order ). Pursuant to the Plan and 11 U.S.C. 1123, the Liquidating Trustee is the successor, for all purposes, of the Debtors and the Committee. B. The HDL Sale 17. On June 29, 2015, the Debtors filed the Motion of Debtors and Debtors in Possession for Entry of an Order (I) Approving the Strategic Transaction Bidding Procedures, (II) Scheduling Bid Headlines and the Auction, (III) Approving the Form and Manner of Notice 4

5 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 5 of 26 Thereof and (IV) Granting Related Relief [Docket No. 176] setting forth proposed bidding procedures for selling substantially all of the Debtors assets (the Bidding Procedures ). 18. On July 15, 2015, the Court entered an order approving the Bidding Procedures. 19. In accordance with the Bidding Procedures, on September 10, 2015, the Debtors conducted an auction for the sale of substantially all of the business assets of HDL (the HDL Sale ) and selected True Health Diagnostics, LLC ( True Health ) as the successful bidder for such assets. 20. On September 17, 2015, the Court entered the Order (I) Approving Asset Purchase Agreement and Authorizing the Sale of Assets of the Debtors Outside the Ordinary Course of Business, (II) Authorizing the Sale of Assets Free and Clear of All Liens, Claims, Encumbrances and Interests, (III) Authorizing the Assumption and Sale and Assignment of Certain Executory Contracts and Unexpired Leases and (IV) Granting Related Relief [Docket No. 512] (the Sale Order ) in which the Court approved the terms of the HDL Sale, including the terms of the Asset Purchase Agreement with True Health (the APA ). A true and correct copy of the APA, without exhibits and schedules, is attached hereto as Exhibit A, and a true and correct copy of the Sale Order is attached hereto as Exhibit B. 21. The HDL Sale closed on September 29, 2015 (the Closing Date ). 22. Pursuant to the APA, among the assets purchased by True Health were accounts receivable aged less than 180 days as of the Closing Date (the Purchased Receivables ). 23. Pursuant to the APA, including without limitation Schedule 2.2(m), HDL retained ownership of accounts receivable aged 180 days or more as of the Closing Date (the Excluded Receivables ). A true and correct copy of Schedule 2.2(m) of the APA is attached hereto as Exhibit C. 5

6 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 6 of The Excluded Receivables include, among other things, amounts owed to HDL by patients for laboratory testing HDL performed. 25. The amounts owed to HDL by patients for laboratory testing HDL performed are based on valid contracts or business expectancies (such contracts or business expectancies, together with the obligations, the Patient Obligations ). 26. The APA defined the Excluded Receivables as properties... of [the Debtors]. See Ex. B, Millions of dollars of Excluded Receivables remain outstanding. 28. The consideration for the HDL Sale consisted of, among other things, $27,100,000 less the Good Faith Deposit and any Closing AR Adjustment (each, as defined in the APA), the assumption of certain assumed liabilities, and the execution and delivery by True Health of a promissory note. 29. Prior to the Closing Date, HDL offered True Health the opportunity to purchase the Excluded Receivables and disclosed to True Health its intention to pursue collection of the Excluded Receivables. 30. True Health did not accept HDL s offer to purchase the Excluded Receivables. 31. The HDL Sale closed without True Health acquiring any rights in the Excluded Receivables. 32. In the Sale Order, the Court found that True Health was not purchasing the Excluded Receivables, and enjoined [a]ll persons holding or asserting any Liens, Claims, Encumbrances and Interests in the Excluded [Receivables] from asserting or prosecuting claims against the Excluded Receivables. See Ex. B, 33. 6

7 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 7 of The Court also found that the Purchased Receivables constitute[d] property of the Debtors estates and title thereto is vested in the Debtors estates within the meaning of section 541(a) of the Bankruptcy Code. Id. C. 34. As recognized by the Court in the Sale Order, the Excluded Receivables are property of HDL s bankruptcy estate pursuant to section 541 of the Bankruptcy Code. C. Collection of the Excluded Receivables 35. On or about July 28, 2015, HDL entered into an Agreement for Services with Accelerated Receivables Management, Inc. ( ARM ), to pursue collection of certain account receivables owned by HDL. 36. Since that time, estate representatives have enlisted two additional collection agencies, Monterey Financial Services ( Monterey ) and Remex, Inc ( Remex, and together with ARM and Monterey, the Collectors ). True and correct copies of the agreements executed between HDL and the Collectors (the Collection Agreements ) are attached hereto as Exhibit D. 37. The Collection Agreements constitute valid and enforceable contracts between the Collectors and HDL. 38. The Collectors are debt collectors and not professional persons under Bankruptcy Code section 327(a). 39. The Excluded Receivables contain at least four classifications of accounts, which, by category, may be described as (1) receivables due from patients who received monies in the form of reimbursement from their insurance carriers (the Paid to Patient Receivables ); (2) receivables due from patients who are solely responsible to pay for laboratory testing they received from HDL; (3) receivables due from patients who are responsible to pay for laboratory testing 7

8 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 8 of 26 because they have not yet met their insurance deductibles; and (4) receivables that are due on account of insurance carrier denials. 40. At the present time, the Liquidating Trustee only intends to pursue Paid to Patient Receivables pending further analysis and consideration by the HDL Liquidating Trust Oversight Committee. 41. Since their engagement, the Collectors have transmitted notices to certain patients for whom HDL had performed laboratory testing. No lawsuits have been commenced against any patient in respect of any of the Excluded Receivables. 42. In addition, after the HDL Sale, True Health collected more than $10 million worth of Purchased Receivables. D. The True Health Litigation 43. On or about January 5, 2016, True Health sent letters to HDL and ARM demanding that HDL require ARM to cease and desist from all collection efforts with respect to the Excluded Receivables (the Cease and Desist Letters ). 44. In addition, True Health and its Vice President for Sales, Jeffrey P. Boomer Cornwell, circulated via electronic mail notices to physicians, groups of physicians, and/or related entities stating that collection letters sent by ARM to patients were a fraudulent attempt to collect funds from patients and that such collection efforts were in direct violation of HDL s stated billing policy. 45. In response to True Health s interference with ARM s collection efforts, on February 2, 2016 HDL filed an adversary proceeding in this Court, Case Number KRH, against True Health and Mr. Cornwell (the True Health Litigation ) seeking, among other 8

9 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 9 of 26 things, an injunction enjoining True Health and Mr. Cornwell from interfering in HDL s collection efforts and holding them in contempt for willfully violating the automatic stay. 46. On February 5 and February 12, 2016, the Court entered orders granting temporary and preliminary injunctions (the Injunction Orders ), respectively, enjoining True Health and Cornwell from taking any actions to interfere with HDL s collection of the Excluded Receivables. True and correct copies of the Injunction Orders are attached hereto as Exhibit E. 47. In the Injunction Orders, the Court held that attempts to interfere with the Collectors efforts to collect the Excluded Receivables constituted willful violations of the automatic stay. 48. In reaching this conclusion, the Court implicitly found that the Excluded Receivables are estate assets because the underlying adversary complaint requested declaratory relief under section 362(a)(3) of the Bankruptcy Code, which prohibits any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate. 11 U.S.C. 362(a)(3). 49. The Court s authority to grant injunctive relief and bar third parties from interfering with the Collectors efforts was necessarily predicated upon a finding that the Excluded Receivables are property of HDL s bankruptcy estate. 50. The True Health Litigation is still pending. E. Third Party Interference with Estate Collection Efforts 51. Willful violations of the automatic stay occurred at the orchestration of parties who insist upon frustrating the work of the Collectors with respect to the Excluded Receivables despite the Court s unambiguous prior directive in the Injunction Orders. 9

10 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 10 of Upon information and belief, Lemberg Law, which represents all of the Consumers besides Kristin Wickstrom ( Wickstrom ), has threatened to sue the Collectors for their activities as debt collectors for the estates and has dispatched correspondence designed to hamper the Liquidating Trustee s legitimate efforts to collect property of the estate consistent with his duties under the Plan. 53. Lemberg Law has also used physician practices, including Women s Health, as a means to amass more clients and to further interfere with collections of receivables that constitute property of HDL s estate. An example of solicitation material aimed to drive patients to Lemberg Law, as posted on the website of the Women s Health in Spokane, Washington, is attached hereto as Exhibit F. 54. The Liquidating Trustee is also aware that various and potentially unknown parties, who may be associated with Lemberg Law, have issued consumer complaints to the Attorney General of the State of Washington and the Attorney General of the State of Texas, and have further made written advances to the U.S. Trustee enclosing copies of letters directed to Monterey (the Patient Letters ). A representative sample of the Patient Letters, believed to be prepared by Lemberg Law, is attached hereto as Exhibit G. 55. In response to Lemberg Law s attempts to interfere with the collection of the Excluded Receivables, on June 3, 2016, the Liquidating Trustee filed a Motion to (A) Enforce the Automatic Stay to Certain Accounts Receivable Constituting Property of the Estate; (B) Extending the Automatic Stay to Collection Entities Acting at the Aid and Direction of the Liquidating Trustee for Purposes of Collecting Such Property for the Benefit of Creditors; and (C) Granting Related Relief under 11 U.S.C. 105 (the Motion to Enforce and Extend ) [Docket No. 1145]. 10

11 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 11 of In the Motion to Enforce and Extend, the Liquidating Trustee sought an order enforcing the automatic stay to the Excluded Receivables, and to extend the automatic stay to the Collectors, to protect the Collectors from threat of suit and other interference. 57. After the Liquidating Trustee filed the Motion to Enforce and Extend, Kristin Wickstrom ( Wickstrom ) filed an action on June 8, 2016, entitled Wickstrom v. Monterey Financial Services, Inc., Case No. 2:16-cv SAB (the Wickstrom Complaint ), pending in the United States District Court for the Eastern District of Washington. A copy of the Wickstrom Complaint is attached hereto as Exhibit H. 58. Upon learning of the Wickstrom Complaint, counsel for the Liquidating Trustee contacted Wickstrom s counsel, Miller, indicating that Monterey was employed by the Liquidating Trustee and sought to collect property of the estate. 59. Counsel for the Liquidating Trustee transmitted the Motion to Enforce and Extend to Wickstrom s counsel, among other relevant documents including the Injunction Orders. Counsel for the Liquidating Trustee additionally requested that the Wickstrom Complaint be dismissed as representing a willful violation of the automatic stay 60. Miller responded that he did not intend to delay in [his] prosecution of the federal lawsuit against Monterey unless and until [he is] compelled to do so by court order. 61. The Liquidating Trustee supplemented the Motion to Enforce and Extend to specifically address the Wickstrom Complaint and requested that the Court enter an order protecting the Excluded Receivables and the Collectors from the disruptive acts of Wickstrom and her counsel. 62. At a hearing held on June 21, 2016, the Court approved the Motion to Enforce and Extend over the Consumers objections. The Court extended the automatic stay, but only did so 11

12 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 12 of 26 in an abundance of caution, holding that I don t think I need to extend it, because [the Collectors are] agents of the estate collecting property of the estate, but to the extent there s any doubt it extends to the collection agencies. 63. On July 1, 2016, the Court entered an order granting the Motion to Enforce and Extend (the Stay Order ). A copy of the Stay Order is attached hereto as Exhibit I. 64. The Stay Order enforced and extended the automatic stay of 11 U.S.C. 362 to protect the Excluded Receivables from any and all interference and assertion of control by any party other than the Liquidating Trustee. The Stay Order also protected the Collectors from any and all claims, threats, and actions initiated against the Collectors in respect of the Collectors work in assist[ing]... the Liquidating Trustee. F. The Underlying Debt 65. The Consumers are all patients whose healthcare providers submitted requisitions for laboratory tests on patient blood samples to HDL for analysis. 66. Upon information and belief, most of the accounts assigned to the Collectors represent amounts owed by the Consumers to HDL as Paid to Patient Receivables. 67. Almost all of the Consumers were patients of Women s Health in Spokane, WA. 68. The Consumers have argued that the Liquidating Trustee is not entitled to collect the Excluded Receivables because of certain statements allegedly made on behalf of HDL prior to the Petition Date in the company s marketing materials. 69. Based upon these statements, the Consumers allege that there is no debt to be collected under the provisions of the Fair Debt Collection Practices Act, 15 U.S.C p (the FDCPA ). 12

13 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 13 of Upon information and belief, the marketing materials were provided by sales representatives employed by HDL s outside marketing agency directly to physicians, many of whom derived substantial remuneration based on the grossly out-of-market commissions and are now employed by True Health. 71. According to the Consumers, the Liquidating Trustee s ability to collect the Excluded Receivables is foreclosed by the following statement, as appears in the referenced marketing materials (the Alleged Releases ): [f]or patients with PPO/POS/HMO insurance, if it turns out your insurance company does not cover a specific test, HDL Inc. assumes all the risk. 72. However, the same marketing materials also state: IMPORTANT: If your insurance company sends a check directly to you, rather than HDL, Inc., please sign the back of the check, write, Pay to the order of HDL, Inc. and forward the check along with the Explanation of Benefits to the address at the right. 73. Other marketing materials such as the pricing overview attached hereto as Exhibit J (the Pricing Overview ) also indicate four instances in which patients of HDL would be responsible for paying for services: 1) If HDL, Inc. learns that payment for services was sent directly to the patient and not forwarded to our billing department as requested above. 2) If the patient does not have medical insurance or if the patient is considered self-pay. 3) If a patient has an HSA/HRA with a high deductible, he or she may choose a self-pay option and therefore would receive a bill. 4) If HDL, Inc. has filed claims with the patient s insurance company and the patient has NOT met the patient contribution requirements (i.e. deductibles, co-pays, co-insurance, etc.) for laboratory services. 13

14 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 14 of At the time lab tests were ordered for each Consumer, the healthcare provider filled out an HDL lab requisition request (the Lab Requisitions ) which was to be signed by the patient. The Lab Requisitions included a section entitled Release and Assignment of Benefits, which stated as follows: As a courtesy, HDL Inc. will make every reasonable effort to obtain reimbursement for ordered tests. I authorize HDL Inc. to release to Medicare, its carriers, and any insurance carrier or health plan providing medical benefits to me, any information that may be needed for claim purposes.... Bill to insurance: I understand that if my insurance company pays me directly for services rendered by HDL Inc., I am responsible for forwarding such payment to HDL Inc. I also understand that I am responsible for any deductible/copayment, as required by my plan. Important: Insurance regulations require HDL Inc. to seek payment. 75. The language in the marketing materials, the Pricing Overview, and the Lab Requisitions clearly indicate that HDL never intended to waive its right to collect the Excluded Receivables. G. HDL s Insolvency 76. At all relevant times, HDL was insolvent, had unreasonably small capital for its business, and incurred or should have known it was incurring debts that it lacked the ability to pay. 77. From October 2009 onward, HDL was incurring millions of dollars in unrecognized liabilities to the government, private payers, and unsecured creditors, far beyond the value of its assets. 78. Although HDL appeared to be generating huge revenues and profits, which it freely distributed to its shareholders, HDL failed to account for the catastrophic liabilities its improper business practices were creating. Once HDL was forced to stop these improper practices, it experienced a predictable and precipitous drop in revenues. 14

15 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 15 of From the outset, HDL failed to account for these large and growing liabilities, together with millions of dollars owed to other unsecured creditors, or to reflect them on its financial statements at the time it made distributions to shareholders. Had HDL reflected these liabilities on its financial statements, those financial statements would have shown that HDL was insolvent at all relevant times. HDL s audited financial statements, therefore, failed to reflect the true state of HDL s business. 80. Upon information and belief, in January 2014, HDL was experiencing cash flow problems and was in danger of violating a bank covenant. In response, several of HDL s officers and directors made short-term loans to HDL, but HDL s liquidity problems, financial distress, and insolvency did not cease, and in fact, became even worse. 81. At all relevant times, HDL was insolvent and the fair amount of its liabilities exceeded the fair value of its assets. In addition, given the large and growing liability exposure that HDL did not acknowledge, at all relevant times, HDL had unreasonably small capital with which to conduct its business, and incurred or should have known it was incurring debts that it lacked the ability to pay as they came due. 82. At the time of its June 7, 2015 bankruptcy filing, HDL itself listed approximately $108 million in scheduled claims. Although grossly understated, that figure was well in excess of the value of HDL s assets. Total filed claims in the HDL bankruptcy proceeding vastly exceed the scheduled amount and are approximately $3 billion, dwarfing the value of HDL s assets and underscoring the depth of HDL s insolvency. 83. Four creditors alone, the U.S. Government and three private payers, collectively account for more than $325 million in liabilities, all arising from HDL s improper business practices. These creditors are (1) the U.S. Department of Justice, with a claim of $94 million; (2) 15

16 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 16 of 26 United Healthcare, with claims of $96 million; (3) Aetna, with claims totaling $77 million; and (4) Cigna, with claims of $59 million. V. CLAIMS FOR RELIEF COUNT I (Finding of Contempt Bankruptcy Code Sections 105(a) and 362(a)) 84. Plaintiff repeats, realleges, and incorporates by reference the allegations contained in paragraphs 1 through 83 of this Complaint as though fully set forth herein. 85. Section 105(a) of the Bankruptcy Code authorizes the Court to issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of [the Bankruptcy Code]. 11 U.S.C. 105(a). 86. Section 362(a) of the Bankruptcy Code operates as a stay that protects HDL and property of its estate. 87. Relief under sections 105(a) and 362(a) is particularly appropriate in this case where Plaintiff requires relief that is necessary in order to preserve the value of HDL s estate. 88. The Defendants have willfully violated the automatic stay imposed under 11 U.S.C. 362 and unjustifiably interfered with the Collection Agreements and the collection of the Excluded Receivables, colluded with each other and numerous physicians to convince patients not to pay amounts rightfully owed to HDL, and made numerous false statements regarding HDL s right to collect the Excluded Receivables and Plaintiff s employment of the Collectors. 89. Pursuant to the automatic stay imposed by the Bankruptcy Code, and as further evidenced by the Stay Order, the Defendants were and are prohibited from taking any actions that improperly interfere with property of HDL s estate, including the Excluded Receivables. 16

17 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 17 of The Defendants actions, including the filing of the Wickstrom Complaint, constitute attempts by the Defendants to interfere with Plaintiff s rights to pursue collection of the Excluded Receivables, which are property of HDL s estate. 91. The Defendants actions have caused and continue to cause irreparable harm by preventing Plaintiff from recovering property of HDL s estate. Defendants. 92. The likelihood of the irreparable harm to Plaintiff outweighs any harm to the 93. Accordingly, Plaintiff is entitled to entry of an order holding the Defendants in contempt of court for violating the automatic stay until such time as the Defendants cease interfering with the collection of the Excluded Receivables and all other damages sustained by Plaintiff are reimbursed by the Defendants. COUNT II (Tortious Interference with Contract) 94. Plaintiff repeats, realleges, and incorporates by reference the allegations contained in paragraphs 1 through 93 of this Complaint as though fully set forth herein. 95. As evidenced by their receipt of the Motion to Enforce and Extend, the Defendants have actual knowledge of the Collection Agreements. 96. Despite not being party to the Collection Agreements, the Defendants have intentionally interfered with such contracts by demanding that the Collectors immediately cease and desist the collections efforts that the Collectors are contractually obligated to perform. 97. Despite not being a party to the Patient Obligations, Defendants have interfered with the Patient Obligations by demanding that the Collectors immediately cease and desist efforts to collect the amounts owed to Plaintiff. 17

18 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 18 of Despite not being parties to either the Collection Agreements or any of the Patient Obligations, the Defendants have intentionally interfered with the Collection Agreements and many of the Patient Obligations by directing physicians, groups of physicians, and/or related entities to instruct their patients not to respond or comply with any attempts by the Collectors to collect on the Excluded Receivables. 99. The Defendants actions in interfering with the Collection Agreements and preventing collection of the Excluded Receivables have caused, and continue to cause, significant and irreparable harm to HDL s estate Plaintiff has no adequate remedy at law As a result, Plaintiff is entitled to an injunction enjoining the Defendants from tortiously interfering with the Collection Agreements and the efforts of Plaintiff to collect the Excluded Receivables Plaintiff requests that the Court enter orders temporarily, preliminarily, and permanently enjoining the Defendants from interfering with the Collection Agreements and the efforts of Plaintiff to collect the Excluded Receivables. COUNT III (Declaratory Relief Bankruptcy Code Sections 105(a) and 362(a) and 28 U.S.C. 2201) 103. Plaintiff repeats, realleges, and incorporates by reference the allegations contained in paragraphs 1 through 102 of this Complaint as though fully set forth herein This is a claim for declaratory relief and there exists a substantial controversy between Plaintiff and the Defendants of sufficient immediacy and reality to warrant the issuance of declaratory judgment under 28 U.S.C

19 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 19 of Section 105(a) of the Bankruptcy Code authorizes the Court to issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of [the Bankruptcy Code]. 11 U.S.C. 105(a) Section 362(a) of the Bankruptcy Code operates as a stay that protects Plaintiff and property of HDL s estate Relief under sections 105(a) and 362(a) is particularly appropriate in this case where Plaintiff requires relief that is necessary in order to preserve the value of the estate The Excluded Receivables are property of HDL s bankruptcy estate pursuant to section 541 of the Bankruptcy Code As set forth herein, the Alleged Releases did not operate to waive Plaintiff s right to collect upon the Excluded Receivables The Excluded Receivables constitute debt as that term is defined in the FDCPA, 15 U.S.C. 1692a(5) The Defendants actions have caused real and significant harm to HDL s estate because they interfere with and pose a substantial risk to Plaintiff s ability to recover the Excluded Receivables, which are valuable estate assets The Defendants also have made false and misleading statements regarding the Collectors and their authority to collect the Excluded Receivables on behalf of Plaintiff, which are intended to convince numerous patients to refuse to return funds rightfully owed to HDL s estate If the Defendants are allowed to interfere with Plaintiff s collection of its interests in the Excluded Receivables, HDL s estate and creditors will suffer the loss of significant estate assets. 19

20 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 20 of Accordingly, Plaintiff respectfully requests that this Court enter a declaratory judgment that (i) the Excluded Receivables are property of HDL s bankruptcy estate; (ii) the Alleged Releases do not constitute waivers of Plaintiff s right to collect upon the Excluded Receivables; (iii) the Excluded Receivables constitute a debt within the meaning of the FDCPA; and (iv) Plaintiff shall not be required to cease and desist collection efforts with respect to the Excluded Receivables. COUNT IV (Avoidance of Constructively Fraudulent Transfer Bankruptcy Code Sections 548 and 550) 115. Plaintiff repeats, realleges, and incorporates by reference the allegations contained in paragraphs 1 through 114 of this Complaint as though fully set forth herein 116. In the alternative, the Liquidating Trustee seeks to avoid the Alleged Releases pursuant to sections 548 and 550 of the Bankruptcy Code The transfer of the Alleged Releases to the Consumers represented a transfer of an interest of HDL in property HDL did not receive reasonably equivalent value in exchange for the Alleged Releases because what HDL received in exchange for the Alleged Releases was harmful to its financial condition rather than economically beneficial As set forth herein, at the time of HDL s transfers of the Alleged Releases to the Consumers, HDL was insolvent or became insolvent as a result of such transfers, HDL was engaged or about to engage in business for which its remaining assets and/or capital were unreasonably small in relation to its business, and/or HDL intended to incur, or reasonably should have believed that it would incur, debts beyond its ability to pay as they became due. 20

21 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 21 of At all relevant times, HDL had actual creditors holding unsecured claims allowable within the meaning of Bankruptcy Code sections 502, including vendors, landlords, suppliers, lenders and other creditors The Alleged Releases were made to or for the benefit of the Consumers HDL s transfers of the Alleged Releases should be avoided pursuant to Bankruptcy Code section Under Bankruptcy Code section 550, Plaintiff may avoid the Alleged Releases from the Consumers as initial, immediate and/or mediate transferees. COUNT V (Avoidance of Constructively Fraudulent Transfer Bankruptcy Code Sections 544(b) and 550 and Va. Code Section 55-81) 124. Plaintiff repeats, realleges, and incorporates by reference the allegations contained in paragraphs 1 through 123 of this Complaint as though fully set forth herein In the alternative, the Liquidating Trustee seeks to avoid the Alleged Releases pursuant to sections 544(b) and 550 of the Bankruptcy Code, and Section of the Virginia Code The transfer of the Alleged Releases to the Consumers represented a transfer of an interest of HDL in property HDL did not receive consideration deemed valuable in law in exchange for entering into and incurring obligations under the Alleged Releases because what HDL received in exchange for the Alleged Releases was harmful to its financial condition rather than economically beneficial. detail herein At the time the Alleged Releases were executed, HDL was insolvent as set forth in 129. The Alleged Releases were made to or for the benefit of the Consumers. 21

22 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 22 of HDL s transfers of the Alleged Releases should be avoided pursuant to applicable provisions of the Virginia Fraudulent Transfer Act, including Va. Code 55-81, and Bankruptcy Code sections 544(b) and Under Bankruptcy Code section 550, Plaintiff may avoid the Alleged Releases from the Consumers as initial, immediate and/or mediate transferees. COUNT VI (Avoidance of Constructively Fraudulent Transfer Bankruptcy Code Sections 544(b) and 550, Rev. Code of Washington , et seq., 24 Oklahoma Stat. Ann. 112, et seq., and 12 Pennsylvania Consol. Stat. Ann. 5101, et seq.) 132. Plaintiff repeats, realleges, and incorporates by reference the allegations contained in paragraphs 1 through 131 of this Complaint as though fully set forth herein In the alternative, HDL s transfers of the Alleged Releases to Consumers located in Washington, Oklahoma, and/or Pennsylvania, should be avoided pursuant to applicable provisions of Rev. Code of Washington , et seq., 24 Oklahoma Stat. Ann. 112, et seq., 12 Pennsylvania Consol. Stat. Ann. 5101, et seq., and Bankruptcy Code sections 544(b) and The transfer of the Alleged Releases to the Consumers represented a transfer of an interest of HDL in property HDL did not receive reasonably equivalent value in exchange for the Alleged Releases because what HDL received in exchange for the Alleged Releases was harmful to its financial condition rather than economically beneficial As set forth herein, at the time of HDL s transfers of the Alleged Releases to the Consumers, HDL was insolvent or became insolvent as a result of such transfers, HDL was engaged or about to engage in business for which its remaining assets and/or capital were 22

23 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 23 of 26 unreasonably small in relation to its business, and/or HDL intended to incur, or reasonably should have believed that it would incur, debts beyond its ability to pay as they became due At all relevant times, HDL had actual creditors holding unsecured claims allowable within the meaning of Bankruptcy Code sections 502, including vendors, landlords, suppliers, lenders and other creditors The Alleged Releases were made to or for the benefit of the Consumers Under Bankruptcy Code section 550, Plaintiff may avoid the Alleged Releases from the Consumers as initial, immediate and/or mediate transferees. COUNT VII (Injunctive Relief Bankruptcy Code Sections 105(a) and 362(k) and Bankruptcy Rules 7001(7) and 7065) 140. Plaintiff repeats, realleges, and incorporates by reference the allegations contained in paragraphs 1 through 139 of this Complaint as though fully set forth herein Through the allegations set forth herein, Plaintiff has established prima facie cases for a finding of contempt, tortious interference with contract, declaratory relief, and avoidance of constructively fraudulent transfers, and therefore has demonstrated a high likelihood of success on the merits. is not granted Plaintiff and HDL s estate will be irreparably harmed if the relief requested herein 143. There is no other adequate remedy at law other than the relief sought herein The balancing of the hardships weighs in favor of the Plaintiff, since Plaintiff will be irreparably harmed if the relief requested herein is not granted, whereas Defendants retain the right to move for relief from the automatic stay or file an adversary proceeding in this Court Pursuant to sections 105 and 362(k) of the Bankruptcy Code and Bankruptcy Rules 7001(7) and 7065, Plaintiff requests that the Court temporarily, preliminarily, and permanently 23

24 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 24 of 26 enjoin the Defendants from interfering with the Collection Agreements, and the efforts of Plaintiff to collect the Excluded Receivables. VI. PRAYER FOR RELIEF WHEREFORE, for the reasons set forth herein, Plaintiff respectfully requests that the Court enter the following relief: 1) For Count I of this Complaint, an order holding the Defendants in contempt of court for violating the automatic stay until such time as the Defendants cease interfering with the collection of the Excluded Receivables, and all other damages sustained by Plaintiff are reimbursed by the Defendants; 2) For Count II of this Complaint, orders temporarily, preliminarily, and permanently enjoining the Defendants from interfering with the Collection Agreements and the efforts of Plaintiff to collect the Excluded Receivables; 3) For Count III of this Complaint, declaratory judgment that (i) the Excluded Receivables are property of HDL s bankruptcy estate; (ii) the Alleged Releases do not constitute waivers of Plaintiff s right to collect upon the Excluded Receivables; (iii) the Excluded Receivables constitute a debt within the meaning of the FDCPA; and (iv) Plaintiff shall not be required to cease and desist collection efforts with respect to the Excluded Receivables; 4) For Count IV of this Complaint, in the alternative to Count III, awarding Plaintiff judgment, pursuant to sections 544(b) and 550 of the Bankruptcy Code, against the Consumers avoiding the Debtors transfers of the Alleged Releases; 5) For Count V of this Complaint, in the alternative to Count III, awarding Plaintiff judgment, pursuant to sections 544(b) and 550 of the Bankruptcy Code and, as applicable, Va. Code 55-81, against the Consumers avoiding the Debtors transfers of the Alleged Releases; 6) For Count VI of this Complaint, in the alternative to Count III, awarding Plaintiff judgment, pursuant to sections 544(b) and 550 of the Bankruptcy Code and, as applicable, Rev. Code of Washington , et seq., 24 Oklahoma Stat. Ann. 112, et seq., and 12 Pennsylvania Consol. Stat. Ann. 5101, et seq., against the Consumers avoiding the Debtors transfers of the Alleged Releases; 7) For Count VII of this Complaint, orders temporarily, preliminarily, and permanently enjoining the Defendants from interfering with the Collection Agreements, and the efforts of Plaintiff to collect the Excluded Receivables; 24

25 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 25 of 26 8) For costs of the suit incurred herein; and 9) That such other and further relief be awarded as this Court deems just and appropriate. Dated: August 3, 2016 /s/ Cullen D. Speckhart Cullen D. Speckhart (VSB No ) WOLCOTT RIVERS GATES 919 E. Main Street, Richmond, VA Bendix Road, Ste. 300 Virginia Beach, VA Telephone: (757) Direct: (757) cspeckhart@wolriv.com Counsel to Richard Arrowsmith, Liquidating Trustee of the HDL Liquidating Trust Respectfully submitted, Richard S. Kanowitz (admitted pro hac vice) Evan M. Lazerowitz (pro hac vice to be filed) COOLEY LLP 1114 Avenue of the Americas New York, New York Telephone: (212) Facsimile: (212) rkanowitz@cooley.com elazerowitz@cooley.com Counsel to Richard Arrowsmith, Liquidating Trustee, and the Liquidating Trust Oversight Committee. 25

26 Case KRH Doc 1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Main Document Page 26 of 26 VERIFICATION I, Richard Arrowsmith, hereby verify, pursuant to 28 U.S.C. 1746, that I am the Liquidating Trustee of the HDL Liquidating Trust, that in my capacity as the Liquidating Trustee, I am familiar with the business operations of the Debtors and the books and records of the Debtors, that I have read the allegations set forth above in the Verified Complaint, and that to the best of my information and belief such, representations are true and accurate. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. By: /s/ Richard Arrowsmith Richard Arrowsmith Liquidating Trustee of the HDL Liquidating Trust

27 Exhibits A - J Page 1 of 172 EXHIBIT A True Health Asset Purchase Agreement

28 Exhibits A - J Page 2 of 172 EXECUTION COPY ASSET PURCHASE AGREEMENT dated as of September 29, 2015 among TRUE HEALTH DIAGNOSTICS, LLC, as Buyer, and HEALTH DIAGNOSTICS LABORATORY, INC. and INTEGRATED HEALTH LEADERS, LLC, as Sellers EMF_US v14

29 Exhibits A - J Page 3 of 172 TABLE OF CONTENTS Page ARTICLE I DEFINITIONS...1 ARTICLE II PURCHASE AND SALE; ASSUMPTION OF CERTAIN LIABILITIES Purchase and Sale of Assets Excluded Assets Assumed Liabilities Excluded Liabilities Obligations in Respect of Cure Amounts Good Faith Deposit...11 ARTICLE III RELEASE Sellers Release Sellers Covenant Not to Sue Unknown Facts Release as Defense to Further Action...12 ARTICLE IV CLOSING Closing Closing Payments Deliveries by Sellers Deliveries by Buyer Form of Instruments Accounts Receivable Adjustment...13 ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLERS Organization, Standing Power and Authority; Enforceability Title to Assets Contracts Taxes AS IS, WHERE IS Transaction...15 ARTICLE VI REPRESENTATIONS AND WARRANTIES OF BUYER Organization; Standing Authority Qualifications...16 ARTICLE VII PRE-CLOSING COVENANTS Closing Efforts Access to Information Conduct of the Business Pending the Closing Bankruptcy Actions EMF_US v14 i

30 Exhibits A - J Page 4 of 172 ARTICLE VIII CONDITIONS TO CLOSING Conditions to Parties Obligations Conditions to Buyer s Obligations Conditions to Sellers Obligations...19 ARTICLE IX TERMINATION Termination Break-Up Fee and Expense Reimbursement Effect of Termination or Breach...21 ARTICLE X POST-CLOSING COVENANTS Employees Employee Benefit Plans Access to Information Tax Matters Collections on Purchased Assets Treatment of Purchased Assets Further Assurances...24 ARTICLE XI MISCELLANEOUS Expenses Amendment Notices Waivers Counterparts and Execution SUBMISSION TO JURISDICTION Governing Law Binding Nature; Assignment No Third Party Beneficiaries Construction Termination of Representations and Warranties Public Announcements Entire Understanding Severability Headings No Liability of Officers and Directors Specific Performance Guaranty...28 EXHIBITS Exhibit A - Form of Sale Order Exhibit B - Form of THD Note Exhibit C - Form of Bill of Sale Exhibit D - Form of Assignment and Assumption Exhibit E - Form of Intellectual Property Assignments Exhibit F - Form of Transition Services Agreement EMF_US v14 ii

31 Exhibits A - J Page 5 of 172 SCHEDULES Schedule 2.1(c) - Assumed Facility Leases Schedule 2.1(e) - Assumed Equipment Leases Schedule 2.1(f) - Intellectual Property Schedule 2.1(g) - Assumed Contracts Schedule 2.2(c) - Excluded Facility Leases Schedule 2.2(d) - Excluded Equipment Leases Schedule 2.2(e) - Excluded Contracts Schedule 2.2(m) - Other Excluded Assets Schedule Buyer Released Parties Schedule Conduct of the Business Pending the Closing EMF_US v14 iii

32 Exhibits A - J Page 6 of 172 ASSET PURCHASE AGREEMENT This ASSET PURCHASE AGREEMENT is made and entered into as of this 29th day of September, 2015, by and among True Health Diagnostics, LLC, a Delaware limited liability company ( Buyer ), Health Diagnostic Laboratory, Inc., a Virginia corporation ( HDL ), and Integrated Health Leaders, LLC, a Virginia limited liability company ( IHL ). Each of HDL and IHL is sometimes hereinafter referred to as a Seller, and collectively HDL and IHL are sometimes hereinafter referred to as Sellers. Leon Capital Group, LLC, a Texas limited liability company, is joining as a party hereto solely for the purposes of Section WHEREAS, on June 7, 2015 (the Petition Date ), Sellers, as debtors and debtors-inpossession, each filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code (the Bankruptcy Code ), jointly administered as Case No (KRH) (the Chapter 11 Cases ), in the United States Bankruptcy Court for the Eastern District of Virginia (Richmond Division) (the Bankruptcy Court ); WHEREAS, on July 15, 2015, the Bankruptcy Court entered an order which, among other things, authorizes Sellers to solicit bids for the sale of all or substantially all of the assets of Sellers pursuant to sections 105(a), 363 and 365 of the Bankruptcy Code (the Bidding Procedures Order ); and WHEREAS, on the terms and subject to the conditions set forth herein, Sellers desire to sell, transfer and assign to Buyer, and Buyer desires to purchase, acquire and assume from Sellers, pursuant to sections 105(a), 363 and 365 of the Bankruptcy Code, all of the Purchased Assets and Assumed Liabilities. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITIONS Unless otherwise defined herein, terms used herein shall have the meanings set forth below: Accounts Receivable means all accounts, notes, interest and other receivables of Sellers, and all claims, rights, interests and proceeds related thereto, including all accounts and other receivables, and notes receivable of Sellers outstanding as of the Closing Date, other than accounts and notes receivable from Affiliates of Sellers. Affiliate of any particular Person means any other Person controlling, controlled by or under common control with such particular Person, where control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person whether by contract, through the ownership of voting securities or otherwise.

33 Exhibits A - J Page 7 of 172 Affiliated Group means an affiliated group as defined in Section 1504 of the Code (or any analogous combined, consolidated or unitary group defined under state, local or foreign income Tax law) of which any Seller is or has been a member. Agreement means this Asset Purchase Agreement, including all the Exhibits and the Schedules hereto, as the same may be amended from time to time in accordance with its terms. Allocation has the meaning set forth in Section 10.4(a) hereof. Assignment and Assumption has the meaning set forth in Section 4.3(d) hereof. Assumed Contracts has the meaning set forth in Section 2.1(f) hereof. Assumed Equipment Leases has the meaning set forth in Section 2.1(e) hereof. Assumed Executory Contracts means the Assumed Contracts, the Assumed Facility Leases and the Assumed Equipment Leases. Assumed Facility Leases has the meaning set forth in Section 2.1(c) hereof. Assumed Leased Facilities means the Leased Facilities identified in the Assumed Facility Leases. Assumed Liabilities has the meaning set forth in Section 2.3 hereof. Assumed State and Local Tax Liabilities means all Liabilities for sales, use, transfer, stamp, documentary, registration, conveyance fees, recording charges and other fees and charges incurred in connection with the transactions contemplated under this Agreement, including the sale and purchase of the Purchased Assets pursuant to this Agreement. Auction means the auction, if any, conducted by Sellers pursuant to the Bidding Procedures Order for all or substantially all of the Purchased Assets in the event a Qualified Bid (as defined in the Bidding Procedures Order) is timely received prior to the Bid Deadline (as defined in the Bidding Procedures Order). Bankruptcy Code has the meaning set forth in the recitals hereto. Bankruptcy Court has the meaning set forth in the recitals hereto. Bidding Procedures Order has the meaning set forth in the recitals hereto. Books and Records means all books and records of Sellers. Break-Up Fee has the meaning set forth in Section 9.2(a) hereof. Business means the Sellers disease management business and associated diagnostic testing and related wellness services for cardiovascular disease, diabetes and other conditions, but excluding the CML Business EMF_US v14 2

34 Exhibits A - J Page 8 of 172 Buyer has the meaning set forth in the preamble hereto. Buyer Expenses means, as of any date of determination, the reasonable fees and out-ofpocket expenses incurred by Buyer on or prior to such date to the extent not previously paid or reimbursed by Sellers in connection with (i) its due diligence regarding Sellers, and (ii) the negotiation, preparation and performance of this Agreement and the transactions contemplated hereby. Buyer Released Parties has the meaning set forth in Section 3.1 hereof. Cash means cash and cash equivalents of Sellers (including marketable securities and short-term investments). Chapter 11 Cases has the meaning set forth in the recitals hereto. Claim has the meaning set forth in section 101(5) of the Bankruptcy Code. Closing has the meaning set forth in Section 4.1 hereof. Closing AR Estimate has the meaning set forth in Section 4.6 hereof. Closing AR Adjustment has the meaning set forth in Section 4.6 hereof. Closing Date has the meaning set forth in Section 4.1 hereof. CML Business means certain assets acquired from Oncimmune, Ltd. which are currently located and operated at a leasehold facility in DeSoto, Kansas and such leasehold facility. CMS has the meaning set forth in Section 2.4(c) hereof. COBRA means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, as reflected in Code Section 4980B and any treasury regulations issued thereunder, and any similar state Laws. Code means the United States Internal Revenue Code of 1986, as amended. Contract means any agreement, license, contract, commitment or other binding arrangement or understanding, whether written or oral, to which any Seller is a party and which any Seller is permitted under the Bankruptcy Code to assume and assign other than an Employee Benefit Plan, including any and all amendments and modifications of any of the foregoing, and any waivers received or granted by either or both Sellers with respect to the foregoing. Cure Amount has the meaning set forth in Section 2.4 hereof. DOJ Settlement Agreement means the settlement agreement entered into on March 30, 2015 by and between the United States of America, acting through the United States Department of Justice and on behalf of the Office of Inspector General of the Department of Health and Human Services, the Department of Defense's Defense Health Agency on behalf of the EMF_US v14 3

35 Exhibits A - J Page 9 of 172 TRICARE program, and the United States Office of Personnel Management, HDL and Dr. Michael Mayes, Chris Riedel, Scarlett Lutz, and Kayla Webster. Employee Benefit Plan means any employee benefit plan (as defined in ERISA 3(3)) and any other benefit or compensation plan, program, agreement or arrangement maintained, sponsored, or contributed or required to be contributed to by any Seller or any ERISA Affiliate or with respect to which any Seller or any ERISA Affiliate has any Liability. Encumbrance or Encumbrances means any lien (statutory or otherwise), encumbrance, security interest, mortgage, collateral assignment, right of setoff, debt, pledge, levy, charge, encumbrance, Tax or Order of any Governmental Authority, option, right of refusal, restriction (whether on transfer, disposition or otherwise), other similar agreement terms tending to limit any right or privilege of Sellers under any Contract, mortgage, lease, deed of trust, hypothecation, indenture, security agreement, easement, license, servitude, proxy, voting trust, transfer restriction under any shareholder or similar agreement, or any other agreement, arrangement, contract, commitment or binding obligation of any kind whatsoever, whether oral or written, or imposed by any applicable law, equity or otherwise. ERISA means the Employee Retirement Income Security Act of 1974, as amended, and all Laws issued thereunder. ERISA Affiliate means any Person that, at any relevant time, is or was treated as a single employer with any Seller for purposes of Code 414. Escrow Agent has the meaning set forth in Section 2.6 hereof. Excluded Assets has the meaning set forth in Section 2.2 hereof. Excluded Liabilities has the meaning set forth in Section 2.4 hereof. Exhibits means the exhibits hereto. Expense Reimbursement has the meaning set forth in Section 9.2(b) hereof. Facility Leases means all right, title and interest of any Seller in all leases, subleases, licenses, concessions and other written agreements and all written amendments, extensions, renewals, guaranties and other written agreements with respect thereto, pursuant to which any Seller holds a leasehold or subleasehold estate in a Leased Facility. Final Order means an Order as to which the time to file an appeal, a motion for rehearing or reconsideration or a petition for writ of certiorari has expired and no such appeal, motion or petition is pending. Good Faith Deposit has the meaning set forth in Section 2.6 hereof. Governmental Authority means any federal, state, local, municipal, foreign, supranational or other governmental or quasi-governmental authority of any nature (including any governmental agency, branch, commission, department, official or entity and any court or EMF_US v14 4

36 Exhibits A - J Page 10 of 172 other tribunal), or any administrative, executive, judicial, legislative, police, regulatory or taxing authority, or arbitral body. HDL has the meaning set forth in the preamble hereto. IHL has the meaning set forth in the preamble hereto. Intellectual Property means all of the following in any jurisdiction throughout the world: (i) patents, patent applications and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, divisionals, extensions and reexaminations thereof, (ii) trademarks, service marks, designs, trade dress, logos, slogans, trade names, telephone numbers, internet domain names, URLs, websites, addresses and corporate names, and all applications, registrations and renewals in connection therewith, together with all goodwill associated with any of the foregoing, (iii) copyrights, mask works and copyrightable works, and all applications, registrations and renewals in connection therewith, (iv) trade secrets and confidential business information (including ideas, research and development, know-how, inventions, formulas, compositions, manufacturing and production processes and techniques, technical data, customer and supplier lists, designs, drawings, plans and specifications), and all derivatives of any of the foregoing, (v) computer software (including source code, executable code, data, databases and related documentation) and (vi) copies and tangible embodiments of any of the foregoing in whatever form or medium. Inventory means all inventory of any kind or nature, whether or not prepaid, and wherever located, held or owned, including all raw materials, work in process, semi-finished and finished products, replacement and spare parts, packaging materials, operating supplies, and fuels and other and similar items. Law means any law, statute, regulation, code, constitution, ordinance, treaty or Order of, administered or enforced by or on behalf of, any Governmental Authority. Leased Facilities means any land, buildings, structures, improvements, fixtures or other interest in real property which is leased or subleased by any Seller in the operation of the Business, excluding the leasehold facility in DeSoto, Kansas. Liability means any liability, including but not limited to any direct or indirect indebtedness, guaranty, endorsement, warranty, indemnification, product liability, environmental liability, commissions, claim, loss, damage, deficiency, cost, expense, Tax, obligation or responsibility, whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due and regardless of when asserted. Order means any award, decision, decree, order, injunction, ruling, judgment, or consent of or entered, issued, made or rendered by any Governmental Authority. Ordinary Course of Business means the operation of the Business by the Sellers in the usual and ordinary course in a manner substantially similar to the manner in which Sellers operated since the commencement of the Chapter 11 Cases (including with respect to quantity and frequency) EMF_US v14 5

37 Exhibits A - J Page 11 of 172 Person means any corporation, partnership (including any limited partnership and any limited liability partnership), joint venture, limited liability company, organization, trust, entity, authority or natural person. Petition Date has the meaning set forth in the recitals hereto. Proceeding means any claim, charge, complaint, dispute, demand, grievance, action, litigation, audit, investigation, review, inquiry, arbitration, liability, damage, suit in equity or at law, administrative, regulatory or quasi-judicial proceeding, account, cost, expense, setoff, contribution, attorney s fee or causes of action of whatever kind or character. Purchase Price means the total consideration to be delivered to Sellers pursuant to Section 4.2 hereof. Purchased Assets has the meaning set forth in Section 2.1 hereof. Rehired Employees means each employee of Seller who accepts an offer of employment by Buyer as described in Section 10.1 hereof. Sale Order means an order of the Bankruptcy Court, in substantially the form of Exhibit A attached hereto, to be entered by the Bankruptcy Court pursuant to sections 363, 365 and 1146(c) of the Bankruptcy Code. Schedules means the schedules attached hereto. Seller Releasing Parties has the meaning set forth in Section 3.1 hereof. Sellers has the meaning set forth in the preamble hereto. Subsidiary means, with respect to any Person, any corporation, partnership, limited liability company or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled to vote in the election of directors thereof is at the time owned or controlled, directly or indirectly, by that Person or (ii) if a partnership, limited liability company or other business entity, a majority of the partnership, limited liability company or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by such Person. Tax and, with correlative meaning, Taxes mean with respect to any Person (i) all federal, state, local, county, foreign and other taxes, assessments or other government charges, including any income, alternative or add-on minimum tax, estimated gross income, gross receipts, sales, use, privilege, ad valorem, value added, transfer, capital stock franchise, profits, license, registration, recording, documentary, intangibles, conveyancing, gains, withholding, payroll, employment, social security (or similar), unemployment, disability, excise, severance, stamp, occupation, premium, property (real and personal), environmental or windfall profit tax, custom duty or other tax, governmental fee or other like assessment, charge, or tax of any kind whatsoever, together with any interest, penalty, addition to tax or additional amount imposed by any Governmental Authority responsible for the imposition of any such tax (domestic or foreign) whether such Tax is disputed or not, (ii) Liability for the payment of any amounts of the type EMF_US v14 6

38 Exhibits A - J Page 12 of 172 described in clause (i) above relating to any other Person as a result of being party to any agreement to indemnify such other Person, being a successor or transferee of such other Person, or being a member of the same affiliated, consolidated, combined, unitary or other group with such other Person, or (iii) Liability for the payment of any amounts of the type described in clause (i) arising as a result of being (or ceasing to be) a member of any Affiliated Group (or being included (or required to be included) in any Tax Return relating thereto). For the avoidance of all doubt, all Liabilities for sales, use, transfer, stamp, documentary, registration, conveyance fees, recording charges and other fees and charges incurred in connection with the transactions contemplated under this Agreement, including the sale and purchase of the Purchased Assets pursuant to this Agreement are included within the definition of Tax and Taxes. Tax Purchase Price has the meaning set forth in Section 10.4(a) hereof. Tax Return means any report, return, declaration, claim for refund or other information or statement supplied or required to be supplied by any Person relating to Taxes, including any schedules or attachments thereto and any amendments thereof. Termination Date has the meaning set forth in Section 9.1(a) hereof. THD Claims has the meaning set forth in Section 2.1(k) hereof. THD Released Claims has the meaning set forth in Section 3.1 hereof. Transaction Documents means this Agreement, and all other agreements, instruments, certificates and other documents to be entered into or delivered by any party in connection with the transactions contemplated to be consummated pursuant to this Agreement. Transition Services Agreement has the meaning set forth in Section 4.3(f) hereof. WARN Act means, collectively, the Worker Adjustment and Retraining Notification Act of 1988, as amended, and any similar state, local or foreign Laws. ARTICLE II PURCHASE AND SALE; ASSUMPTION OF CERTAIN LIABILITIES 2.1 Purchase and Sale of Assets. Subject to the terms and conditions set forth in this Agreement, at the Closing, Sellers shall sell, assign, transfer, convey and deliver to Buyer, free and clear of all Encumbrances, and Buyer shall purchase, acquire and take assignment and delivery of, for the consideration specified in Article IV, all right, title and interest of every kind and nature of Sellers in and to all of the properties, assets and rights (contractual or otherwise) of Sellers and used primarily in the Business as of the Closing Date, whether tangible or intangible, real or personal and wherever located and by whomever possessed, including all of the following properties, assets and rights, but excluding the Excluded Assets (all of the assets to be sold, assigned, transferred, conveyed and delivered pursuant to this Section 2.1 shall be referred to herein as the Purchased Assets ): (a) all Accounts Receivable; EMF_US v14 7

39 Exhibits A - J Page 13 of 172 (b) all Inventory; (c) all Facility Leases set forth on Schedule 2.1(c) (the Assumed Facility Leases ), but excluding the Facility Leases set forth on Schedule 2.2(c); (d) all tangible personal property of each Seller, including but not limited to leasehold improvements and all machinery, equipment, vehicles, computers, servers, information systems, fixtures, computer equipment, telephone systems, furniture, office supplies, production supplies, spare parts and other miscellaneous supplies; (e) all equipment leases of each Seller set forth on Schedule 2.1(e) (the Assumed Equipment Leases, together with the Assumed Facility Leases, the Assumed Leases ), but excluding the equipment leases set forth on Schedule 2.2(d); (f) all Intellectual Property owned or licensed by each Seller or by the Sellers jointly (including without limitation all of the Intellectual Property set forth on Schedule 2.1(f)), along with all income, royalties, damages, claims, goodwill and payments due or payable to Sellers as of the Closing or thereafter, including damages and payments for past, present or future infringements or misappropriations thereof, or other conflicts therewith, the right to sue and recover for past, present or future infringements or misappropriations thereof, or other conflicts therewith, and any and all corresponding rights that, now or hereafter, may be secured throughout the world, including all copies and tangible embodiments of any such Intellectual Property in Sellers possession or control; (g) all Contracts of each Seller (the Assumed Contracts ), including the Contracts set forth on Schedule 2.1(g), but excluding the Contracts set forth on Schedule 2.2(e); (h) all Books and Records; (i) all transferable permits, licenses, certifications and approvals from all permitting, licensing, accrediting and certifying agencies, and the rights to all data and records held by such permitting, licensing and certifying agencies, in each case, of Sellers; (j) any confidential personnel and medical records pertaining to any Employee of the Sellers who accepts Buyer s offer of employment; (k) all Claims and causes of action against the Persons listed on Schedule 3.1 (the THD Claims ); and (l) (m) all goodwill as a going concern and all other intangible property of Sellers; all other tangible and intangible assets related to the Sellers Business. 2.2 Excluded Assets. Notwithstanding anything to the contrary in this Agreement, the following assets of Sellers shall be retained by Sellers and are not being sold, assigned, transferred, conveyed or delivered to Buyer hereunder (all of the following are referred to EMF_US v14 8

40 Exhibits A - J Page 14 of 172 collectively as the Excluded Assets ), and Buyer shall have no obligations of any kind or nature with respect to or arising from: (a) all Cash of the Sellers; (b) all claims, actions, causes of action, suits, liabilities, obligations, demands, grievances, debts, sums of money, agreements, promises, damages, rights to reimbursement, rights to contribution, rights to indemnification, costs, expenses, attorneys fees, injunctive relief, disgorgement, restitution, and all other rights and remedies of any type, whether known or unknown, whether in law or in equity, and whether based upon any federal, state, or local law, statute, ordinance, or regulation, or upon any contract, common law source, or any other source, against third parties, including claims against current and former directors and officers of Sellers and avoidance claims or causes of action arising under the Bankruptcy Code or applicable state law (including all rights and avoidance claims of Sellers arising under chapter 5 of the Bankruptcy Code); provided that, for the avoidance of doubt, the right and ability to collect the Accounts Receivable in Section 2.1(a), the Intellectual Property rights expressly set forth in Section 2.1(f) and the THD Claims in Section 2.1(k) shall be Purchased Assets and not Excluded Assets; (c) (d) (e) all Facility Leases set forth on Schedule 2.2(c); the equipment leases of each Seller set forth on Schedule 2.2(d); all Contracts of each Seller set forth on Schedule 2.2(e); (f) subject to Section 7.2, originals of any Seller s minute books, stock books and stock certificates; (g) subject to Section 7.2, any (i) confidential personnel and medical records pertaining to any Employee of the Sellers to whom Buyer does not make an offer of employment or any Employee of the Sellers who does not accept Buyer s offer of employment or (ii) other Books and Records that Sellers are required by Law to retain including, without limitation, Tax Returns, taxpayer and other identification numbers, financial statements and corporate or other entity filings; (h) all Tax Returns of Sellers and their Affiliates and all other books and records relating to Taxes of Sellers and their Affiliates, and any claim, right or interest of Sellers and their Affiliates in or to any refund, rebate, abatement or other recovery for Taxes, together with any interest due thereon or penalty rebate arising therefrom, for any Tax period (or portion thereof) ending on or before the Closing Date; (i) the membership interests in HDL Properties, LLC, a Virginia limited liability company, Central Medical Laboratory, LLC, a Virginia limited liability company, and Biotech 8, LLC, a Virginia limited liability company, in each case held directly or indirectly by HDL, and any equity securities or membership or ownership interests in any other direct or indirect Subsidiary of any Seller; (j) all assets used primarily in the CML Business; EMF_US v14 9

41 Exhibits A - J Page 15 of 172 (k) all rights under Sellers insurance policies relating to the Business (including, without limitation, Seller s directors and officers liability insurance policies) and any right to refunds due with respect to such insurance policies; (l) this Agreement and the other Transaction Documents and Sellers rights hereunder and thereunder; and (m) all assets listed on Schedule 2.2(m). 2.3 Assumed Liabilities. Subject to the terms and conditions set forth in this Agreement, including Section 2.3 hereto, Buyer shall only assume from Sellers and thereafter be responsible for the payment, performance or discharge of the following Liabilities of Sellers (all such liabilities and obligations assumed pursuant to this Section 2.3 shall be referred to herein as the Assumed Liabilities ): Closing; and (a) (b) all Liabilities under the Assumed Executory Contracts that arise after the all Assumed State and Local Tax Liabilities 2.4 Excluded Liabilities. Except for the Assumed Liabilities, Buyer shall not assume or become liable for the payment or performance of any Liabilities of Sellers of any nature whatsoever, whether accrued or unaccrued, known or unknown, fixed or contingent ( Excluded Liabilities ). For the avoidance of doubt, the concept of Excluded Liabilities is intended to be construed as broadly as possibly under applicable Law, including section 363 of the Bankruptcy Code as interpreted, and shall include, without limitation, the following: (a) (b) any Liabilities associated with any Excluded Assets; any Liabilities associated with the DOJ Settlement Agreement; (c) any Liabilities associated with the Sellers Medicare and Medicaid enrollment agreements, provider transaction access numbers or the claims for payment submitted thereunder; provided that Accounts Receivable from Centers for Medicare & Medicaid Services ( CMS ) may be subject to offset or recoupment by CMS in the ordinary course under the terms of the Sellers Medicare enrollment agreements, Medicare statutes, regulations, policies and procedures; but not subject to any offset or recoupment outside of the ordinary course, including but not limited to any rights or obligations under the DOJ Settlement Agreement; (d) Legal Requirement; all Liabilities of Seller or with respect to the Business for violations of any (e) any Liabilities arising under (i) the WARN Act or COBRA with respect to terminations of employment occurring on or prior to the Closing Date or (ii) the Employee Benefit Plans; and (f) except as set forth in Section 2.3(b), Taxes of the Sellers or their Affiliates and any of their respective members, managers, officers, directors, employees, agents or EMF_US v14 10

42 Exhibits A - J Page 16 of 172 representatives, or liability under and contract or agreement with respect to payment of any Taxes, whether it be Taxes of the Sellers, Affiliates of the Sellers or any other party. 2.5 Obligations in Respect of Cure Amounts. To the extent that any Assumed Executory Contract is subject to a cure pursuant to section 365 of the Bankruptcy Code, at the Closing, any amounts (the Cure Amount ) related to such cure obligations shall be paid by Buyer; provided, however, that if the lease of real property located at 737 N. 5 th Street, Richmond, Virginia from Biotech 8, LLC is an Assumed Executory Contract, then any Cure Amount or post-petition administrative expense due to Biotech 8, LLC with respect to such lease shall be paid by Sellers. 2.6 Good Faith Deposit. Upon the execution and delivery of this Agreement by the parties hereto, Buyer shall pay (or shall have paid) $10,000, (the funds deposited into the escrow account, together with any investment earnings thereon after the date of deposit thereof, are collectively referred to as the Good Faith Deposit ) by wire transfer of immediately available funds to the escrow account established by Sellers counsel (the Escrow Agent ). Upon termination of this Agreement by Buyer or Sellers pursuant to Section 9.1 (other than a termination by Sellers pursuant to Section 9.1(d)), and provided that Buyer is not in material breach of its obligations under this Agreement, within three business days following such termination, Buyer and the Sellers shall execute joint written instructions to Escrow Agent instructing Escrow Agent to disburse the Good Faith Deposit to Buyer. If this Agreement is terminated by Sellers pursuant to Section 9.1(d), within three business days following such termination, Buyer and Seller shall execute joint written instructions to Escrow Agent instructing Escrow Agent to disburse the Good Faith Deposit to Sellers; provided that Sellers right to receive the Good Faith Deposit under such circumstances shall be without prejudice to any other rights or remedies the Sellers may have as a result of any breach of this Agreement by Buyer. ARTICLE III RELEASE 3.1 Sellers Release. Effective upon the Closing, each of Sellers, for itself and all of its predecessors, Affiliates, Subsidiaries, heirs, estates, successors and assigns, and for all of their respective officers, directors, trustees, principals, managers, partners, shareholders, members, employees, attorneys, representatives and agents (the Seller Releasing Parties ), hereby jointly and severally release the Persons listed on Schedule 3.1 (the Buyer Released Parties ), from any and all claims, actions, causes of action, suits, liabilities, obligations, demands, grievances, debts, sums of money, agreements, promises, damages, rights to reimbursement, rights to contribution, rights to indemnification, costs, expenses, attorneys fees, injunctive relief, disgorgement, restitution, and all other rights and remedies of any type, whether known or unknown, whether in law or in equity, and whether based upon any federal, state, or local law, statute, ordinance, or regulation, or upon any contract, common law source, or any other source, except for any claims that may arise under this Agreement (the THD Released Claims ). 3.2 Sellers Covenant Not to Sue. Each of the Seller Releasing Parties agrees never to bring any claim, action or proceeding against the Buyer Released Parties relating to the THD Released Claims EMF_US v14 11

43 Exhibits A - J Page 17 of Unknown Facts. Each of the Sellers fully understands and recognizes that it may hereafter discover facts other than, or different from, what it knows or believes to be true with respect to the THD Released Claims. Nevertheless, each of the Sellers hereby does and has, and for all times shall be deemed to have, waived and fully, finally and forever released any known or unknown, hidden or open, suspected or unsuspected, asserted or unasserted, contingent or non-contingent claims, without regard to the subsequent discovery or existence of different or additional facts. 3.4 Release as Defense to Further Action. This Release may be pleaded as full and complete defense to any action, suit, or other proceeding that may be instituted or prosecuted with respect to any of the THD Released Claims. ARTICLE IV CLOSING 4.1 Closing. Upon the terms and subject to the satisfaction of the conditions contained in this Agreement, the closing of the transaction contemplated by this Agreement (the Closing ) will take place at the offices of Hunton & Williams LLP, Riverfront Plaza, East Tower, 951 East Byrd Street, Richmond, Virginia at 10:00 a.m. local time as soon as practicable after the date on which the conditions set forth in Article VIII have been satisfied or waived (but no later than three business days thereafter) or on such other date or at such other place and time as Buyer and Sellers may mutually determine (the Closing Date ). 4.2 Closing Payments. At the Closing, Buyer and Sellers shall make the following payments and take the following actions: (a) Buyer shall pay $27,100,000.00, less the Good Faith Deposit and less the Closing AR Adjustment, if any, by wire transfer of immediately available funds to an account designated by the Sellers in a written notice to Buyer at least two business days prior to the Closing; (b) Buyer shall deliver a fully executed promissory note payable to Sellers in the initial principal amount of $10,000, secured by the Accounts Receivable, in the form attached hereto as Exhibit B (the THD Note ); and (c) Buyer and the Sellers shall execute joint written instructions to Escrow Agent instructing Escrow Agent to disburse the Good Faith Deposit to Sellers. 4.3 Deliveries by Sellers. At the Closing, Sellers shall deliver or procure delivery to Buyer of: (a) a certificate signed by each Seller, dated the date of the Closing Date, certifying that the condition specified in Section 8.2(a) has been satisfied as of the Closing; (b) originals (or, to the extent originals are not available, copies) of all Assumed Executory Contracts (together with all amendments, supplements or modifications thereto); EMF_US v14 12

44 Exhibits A - J Page 18 of 172 (c) one or more bills of sale, in the form attached hereto as Exhibit C conveying in the aggregate all of the owned personal property of Sellers included in the Purchased Assets, duly executed by Sellers; (d) one or more assignments and assumptions of the Assumed Liabilities, in the form attached hereto as Exhibit D (collectively, the Assignment and Assumption ), duly executed by the relevant Seller or Sellers; (e) duly executed Intellectual Property assignments (collectively, the Intellectual Property Assignments ) in the forms attached hereto as Exhibit E, each in recordable form to the extent necessary to assign such rights; (f) a duly executed Transition Services Agreement in the form attached hereto as Exhibit F (the Transition Services Agreement ); and (g) certificates of title and title transfer documents to all titled motor vehicles; (h) such other documents or instruments as are required to be delivered by any Seller at the Closing pursuant to the terms hereof or that Buyer reasonably requests prior to the Closing Date to effect the transactions contemplated hereby. 4.4 Deliveries by Buyer. At the Closing, Buyer will deliver to Sellers: (a) (b) the Assignment and Assumption duly executed by Buyer; the Transition Services Agreement duly executed by Buyer; and (c) a certificate signed by Buyer, dated the date of the Closing Date, certifying that the condition specified in Section 8.3(a) has been satisfied as of the Closing. 4.5 Form of Instruments. To the extent that a form of any document to be delivered hereunder is not attached as an Exhibit hereto, such documents shall be in form and substance, and shall be executed and delivered in a manner, reasonably satisfactory to Buyer and Sellers. 4.6 Accounts Receivable Adjustment. Not later than three days prior to the Closing Date, Sellers will provide Buyer with an estimate of the Accounts Receivable on the Closing Date with aging of 120 days or less (the Closing AR Estimate ), which Closing AR Estimate shall be certified on behalf of Sellers by the President and the Chief Financial Officer of Sellers to be Sellers good faith estimate of all Accounts Receivable that will be included in the Purchased Assets that represent valid obligations in all material respects arising from bona fide sales actually made or services actually performed in the ordinary course of business and that are carried in the Books and Records of the Sellers at values determined in accordance with generally acceptable accounting principles consistently applied in all material respects. To the extent the Closing AR Estimate is less than $10,000,000, such difference (the Closing AR Adjustment ) will be deducted from the Purchase Price otherwise payable pursuant to Section 4.2(a); provided that if the Closing AR Adjustment is greater than 10% of the Purchase Price, then Sellers may terminate this Agreement pursuant to Section 9.1(f) EMF_US v14 13

45 Exhibits A - J Page 19 of 172 ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLERS Sellers jointly and severally represent and warrant to Buyer as follows. 5.1 Organization, Standing. Each Seller is a legal entity duly organized, validly existing and in good standing under the laws of the Commonwealth of Virginia. 5.2 Power and Authority; Enforceability. Subject to any necessary authorization from the Bankruptcy Court, each Seller has full power and authority to execute and deliver the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby. All Transaction Documents to which any Seller is a party have been duly executed and delivered by such Seller, except such Transaction Documents that are required by the terms hereof to be executed and delivered by such Seller after the date hereof, in which case such Transaction Documents will be duly executed and delivered by such Seller at or prior to the Closing, and, subject to any necessary authorization from the Bankruptcy Court, all Transaction Documents constitute, or will constitute, as the case may be, the valid and binding agreements of Sellers, enforceable against Sellers in accordance with their terms. 5.3 Title to Assets. The Sellers have good title to, or interest in (as applicable), all of the Purchased Assets. Upon entry of the Sale Order, at the Closing, the Buyer will be authorized to transfer to the Seller the Purchased Assets, free and clear of all liens, Claims and Encumbrances to the fullest extent permissible under section 363(f) of the Bankruptcy Code. 5.4 Contracts. (a) Upon entry of the Sale Order and payment or satisfaction of the Cure Amounts, (x) the Assumed Executory Contracts shall be deemed valid and binding and in full force and effect and assumed by the Sellers and assigned to the Buyer at Closing, and (y) all defaults and other obligations under the Assumed Executory Contracts arising prior to Closing (without giving effect to any acceleration clauses or any default provisions of the kind specified in section 365(b)(2) of the Bankruptcy Code) shall be deemed cured by payment of the Cure Amounts and the non-debtor parties to such contracts shall be forever barred and estopped from asserting or claiming against the Sellers or the Buyer that any additional amounts are due or other defaults exist. (b) Upon entry of the Sale Order, payment or satisfaction of the Cure Amounts, and the occurrence of the Closing (i) the non-debtor party to each Assumed Executory Contract shall be deemed to have consented to such assignment under section 365(c)(1)(B) of the Bankruptcy Code, and the Buyer shall enjoy all of the rights and benefits under each such Assumed and Assigned Contract as of the applicable date of assumption without the necessity of obtaining such non-debtor party's written consent to the assumption or assignment thereof; and (ii) any provision in any Assumed Executory Contract that purports to declare a breach, default or payment right as a result of an assignment or a change of control in respect of the Sellers is unenforceable, and all Assumed Executory Contracts shall remain in full force and effect, subject only to payment of the appropriate Cure Amount, if any EMF_US v14 14

46 Exhibits A - J Page 20 of Taxes. (a) Sellers have timely filed or caused to be timely filed (taking into account any applicable extension of time within which to file), with the appropriate taxing authorities, all material federal, state and local Tax Returns required to be filed relating to the Business on or prior to the Closing Date. Such Tax Returns as filed were correct and complete in all material respects. (b) All Taxes and Tax liabilities due and owing by or with respect to the income, assets or operations of the Business have been paid in full, except for any such Taxes that are forgiven as part of the bankruptcy proceedings. (c) There are no current liens on any of the Purchased Assets that arose in connection with any failure (or alleged failure) to pay any Taxes that will survive the bankruptcy proceedings and carryover and become a liability of the Buyer after the Closing Date. 5.6 AS IS, WHERE IS Transaction. Buyer hereby acknowledges and agrees that, except as otherwise expressly provided in this Agreement, Sellers make no representations or warranties whatsoever, express or implied, with respect to any matter relating to the Business or the Purchased Assets, including, without limitation, income to be derived or expenses to be incurred in connection with the Purchased Assets, the physical condition of any personal property comprising a part of the Purchased Assets or which is the subject of any Assumed Executory Contract, the environmental condition or other matter relating to the physical condition of any real property or improvements which are the subject of any Assumed Facility Lease, the zoning of any such real property or improvements, the value or transferability of the Purchased Assets (or any portion thereof), the terms, amount, validity or enforceability of any Assumed Liabilities, the title of the Purchased Assets (or any portion thereof), the merchantability or fitness of the Purchased Assets (or any portion thereof for any particular purpose, or any other matter or thing relating to the Business or the Purchased Assets or any portion thereof). Without in any way limiting the foregoing, except as otherwise expressly provided in this Agreement, Sellers hereby disclaim any warranty (express or implied) of merchantability or fitness for any particular purpose as to any portion of the Purchased Assets. Buyer further acknowledges that Buyer has conducted an independent inspection and investigation of the physical condition of the Purchased Assets and all such other matters relating to or affecting the Purchased Assets as Buyer deemed necessary or appropriate and that in proceeding with its acquisition of the Purchased Assets, Buyer is doing so based solely upon such independent inspection and investigation. Accordingly, except as otherwise expressly provided in this Agreement, Buyer will accept the Purchased Assets at the Closing AS IS, WHERE IS and WITH ALL FAULTS. ARTICLE VI REPRESENTATIONS AND WARRANTIES OF BUYER Buyer represents and warrants to Sellers as follows: 6.1 Organization; Standing. Buyer is a legal entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization EMF_US v14 15

47 Exhibits A - J Page 21 of Authority. Buyer has full power and authority to execute and deliver the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby. All Transaction Documents to which Buyer is a party have been duly executed and delivered by Buyer, except such Transaction Documents that are required by the terms hereof to be executed and delivered by Buyer after the date hereof, in which case such Transaction Documents will be duly executed and delivered by Buyer at or prior to the Closing, and all Transaction Documents constitute, or will constitute, as the case may be, the valid and binding agreements of Buyer, enforceable against Buyer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium and other laws affecting creditors rights generally from time to time in effect, and to general equitable principles. 6.3 Qualifications. Buyer has obtained and maintains in full force and effect a Clinical Laboratory Improvement Amendments of 1988 (CLIA) certificate, a Medicare certification and associated Medicare supplier agreement, and all other licenses, permits, authorizations and other approvals of Governmental Authorities required to receive and process new and existing laboratory orders from patients and referring providers. ARTICLE VII PRE-CLOSING COVENANTS 7.1 Closing Efforts. Prior to Closing, Buyer and Sellers shall use commercially reasonable efforts to (i) obtain all material consents and approvals of all Governmental Authorities and all other Persons required to be obtained by Buyer and Sellers to effect the transactions contemplated by this Agreement and (b) take, or cause to be taken, all action, and to do, or cause to be done, all things necessary or proper, consistent with applicable Law and this Agreement, to consummate and make effective in an expeditious manner the transactions contemplated hereby. 7.2 Access to Information. Sellers agree that, prior to the Closing Date, Buyer, Buyer s lender, if any, and their respective representatives shall, upon reasonable advance notice and so long as such access does not unreasonably interfere with the business operations of Sellers or any of their Affiliates, have reasonable access during normal business hours to Sellers premises and shall be entitled to make such investigation of the properties, businesses and operations of Sellers and such examination of the Books and Records and financial condition of Sellers as it reasonable requests and to make extracts and copies to the extent necessary of the Books and Records; provided, that no investigation pursuant to this Section 7.2 shall affect any liability for, or otherwise diminish, modify or affect, any representations or warranties made herein or the conditions to the obligations of the respective parties to consummate the transactions contemplated by this Agreement. Notwithstanding anything herein to the contrary, no such investigation or examination shall be permitted to the extent that it would require Sellers to disclose information subject to attorney-client privilege or conflict with any confidentiality obligations to which any Seller is bound. Upon reasonable request, Sellers will make available the laboratory director, employees from information services and employees from the billing department to discuss Sellers Business. Buyer will not contact any employee, customer or supplier of Sellers with respect to this Agreement without the prior written consent of Sellers, which consent will not be unreasonably withheld, conditioned or delayed and which may be given via . Buyer agrees to repair at its sole cost any damage to Sellers premises caused EMF_US v14 16

48 Exhibits A - J Page 22 of 172 by Buyer s investigation and to indemnify and hold Sellers harmless of and from any claim for physical damages or physical injuries arising from Buyer s investigation, and notwithstanding anything to the contrary in this Agreement, such obligations to repair and to indemnify shall survive the Closing or any termination of this Agreement. 7.3 Conduct of the Business Pending the Closing. Subject to any obligations as debtors-in-possession under the Bankruptcy Code, and except as required by Law, as contemplated by this Agreement, with the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed) or as described on Schedule 7.3, from the date hereof until the Closing Date, Sellers: (a) shall not sell, transfer, abandon, permit to lapse or otherwise dispose of any of the Purchased Assets; (b) shall conduct the Business in the Ordinary Course of Business; (c) shall not authorize, declare or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock (whether in cash, assets, stock or other securities); (d) shall use commercially reasonable efforts to preserve intact the Business to keep available the services of its current employees and agents and to maintain its relations and goodwill with its suppliers, customers, distributors and any others with whom or with which it has business relations; (e) shall not enter into any Contracts other than in the Ordinary Course of Business without prior written authorization of Buyer; (f) shall not fail to maintain in full force and effect insurance policies covering Sellers and their respective properties, assets and businesses in a form and amount consistent with past practice; and (g) shall not make or change any election relating to Taxes, amend any Tax Return, enter into any closing agreement with respect to Taxes, settle any Tax claim or assessment relating to Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or take any other similar action relating to Taxes. 7.4 Bankruptcy Actions. (a) Sellers shall use their commercially reasonable efforts to: (i) ensure that Bids are due no later than September 4, 2015, (ii) ensure that the Auction, if any, for the sale of all or substantially all of the Purchased Assets, on terms and conditions substantially the same in all material respects to this Agreement and in accordance with the procedures set forth in the Bidding Procedures Order, shall be held no later than September 10, 2015, (iii) obtain entry of the Sale Order by no later than September 21, 2015 and (iv) consummate the Closing as soon as practicable after the approval of the Sale Order and no later than the earlier of (x) 10 business days following approval of the Sale Order or (y) one day before the Termination Date EMF_US v14 17

49 Exhibits A - J Page 23 of 172 (b) Buyer agrees to promptly take such actions as are reasonably requested by Sellers to assist in obtaining entry of the Sale Order, including furnishing affidavits or other documents or information for filing with the Bankruptcy Court for purposes, among others, of providing necessary assurances of performance by Buyer of its obligations under this Agreement and the Transaction Documents and demonstrating that Buyer is a good faith buyer under section 363(m) of the Bankruptcy Code. (c) Sellers shall pay when due all post-petition administrative expenses related to the Assumed Contracts relating to the period beginning on the Petition Date and ending on the Closing Date. (d) Buyer shall be responsible for providing evidence and argument in support of the Sale Order in order to establish Buyer s ability to provide adequate assurance of future performance (within the meaning of section 365(f)(2)(B) of the Bankruptcy Code) of any Assumed Executory Contract. Sellers agree to use commercially reasonable efforts to cooperate with Buyer in the presentation of such evidence and argument. The Bankruptcy Court s refusal to approve the assumption by Buyer of any Assumed Executory Contract on the grounds that adequate assurance of future performance by Buyer of such Contract has not been provided shall constitute grounds for Sellers (but not Buyer) to terminate this Agreement pursuant to Section 9.1(d) hereof. (e) This Agreement is subject to approval by the Bankruptcy Court and the consideration by Sellers of higher or better competing bids (each a Competing Bid ). From the date hereof (and any prior time) and until the transaction contemplated by this Agreement is consummated, Sellers are permitted to cause their representatives and Affiliates to initiate contact with any Person in connection with, or solicit or encourage submission of, a Qualifying Bid (as defined in the Bidding Procedures Order) to be submitted at the Auction by any Person. In addition, Sellers shall, in an effort to encourage submission of Qualifying Bids at the Auction, respond to any inquiries or offers to purchase all or any part of the Purchased Assets and perform any and all other acts related thereto that are required under the Bankruptcy Code or other applicable law, including, without limitation, supplying information relating to the Business and the assets of Sellers to prospective purchasers. ARTICLE VIII CONDITIONS TO CLOSING 8.1 Conditions to Parties Obligations. The obligations of Buyer and Sellers to consummate the transactions contemplated by this Agreement are subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Buyer and Sellers in whole or in part to the extent permitted by applicable Law): (a) Governmental Approvals. All terminations or expirations of waiting periods imposed (and any extension thereof) by any Governmental Authority necessary for the transactions contemplated under this Agreement (including those under the HSR Act or similar foreign statute or rule), if any, shall have occurred EMF_US v14 18

50 Exhibits A - J Page 24 of 172 (b) No Order or Proceeding. No Order shall be issued by any Governmental Authority enjoining, restraining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement. (c) Bankruptcy Condition. The Sale Order shall have been entered on the docket by the Clerk of the Bankruptcy Court. 8.2 Conditions to Buyer s Obligations. The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Buyer in whole or in part to the extent permitted by applicable Law): (a) Accuracy of Representations and Warranties. Each of the representations and warranties of Sellers contained herein shall be true and correct in all material respects on and as of the Closing Date. (b) Performance of Covenants. Sellers shall have performed and complied in all material respects with the obligations and covenants required by this Agreement to be performed or complied with by Sellers on or prior to the Closing Date. (c) Closing Deliveries. Sellers shall have delivered, or caused to be delivered, to Buyer all of the items set forth in Section 4.3. (d) Dismissal or Conversion of the Chapter 11 Cases. The Chapter 11 Cases shall not have been dismissed or converted to a case under chapter 7 of the Bankruptcy Code. 8.3 Conditions to Sellers Obligations. The obligation of Sellers to consummate the transactions contemplated by this Agreement are subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Sellers in whole or in part to the extent permitted by applicable Law): (a) Accuracy of Representations and Warranties. The representations and warranties of Buyer contained herein shall be true and correct in all material respects on and as of the Closing Date. (b) Performance of Covenants. Buyer shall have performed and complied in all material respects with the obligations and covenants required by this Agreement to be performed or complied with by Buyer on or prior to the Closing Date (c) Consideration. Buyer shall have made the payments specified in Section (d) Closing Deliveries. Buyer shall have delivered, or caused to be delivered, to Sellers all of the items set forth in Section EMF_US v14 19

51 Exhibits A - J Page 25 of 172 ARTICLE IX TERMINATION 9.1 Termination. This Agreement may be terminated prior to the Closing as follows: (a) by either Buyer or Sellers, if the Closing shall not have occurred by the close of business on September 30, 2015 (the Termination Date ); provided, however, that, if the Closing shall not have occurred due to the failure of the Bankruptcy Court to enter the Sale Order and if all other conditions to the respective obligations of the parties to close hereunder that are capable of being fulfilled by the Termination Date shall have been so fulfilled or waived, then no party may terminate this Agreement prior to October 14, 2015; provided, further, that if the Closing shall not have occurred on or before the Termination Date due to a material breach of any representations, warranties, covenants or agreements contained in this Agreement by Buyer or Sellers, then the breaching party may not terminate this Agreement pursuant to this Section 9.1(a); (b) by mutual written agreement of Buyer and Sellers; (c) by either Buyer or Sellers, if there shall be in effect a Final Order enjoining, restraining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that Sellers shall not be entitled to terminate under this subsection if either or both of the Sellers are the parties that have sought, or have advocated in favor of, such a Final Order; (d) by either Buyer or Sellers, if there shall have been a material breach of any of the representations, warranties, covenants or agreements set forth in this Agreement on the part of the other party, which breach is not cured within the earlier of (x) 10 days following written notice to the party committing such breach or (y) one day before the Termination Date or which breach, by its nature, cannot be cured prior to the Closing; provided that neither Buyer nor Sellers may terminate this Agreement pursuant to this Section 9.1(d) if such party is then in material breach of any representation, warranty, covenant or agreement contained herein; (e) by either Buyer or Sellers, if the Bankruptcy Court shall enter an Order approving a Competing Bid, subject to the limitations set forth in the Bidding Procedures Order and subject to Buyer s right to payment of the Break-Up Fee and Expense Reimbursement in accordance with the provisions of Section 9.2; or (f) by Sellers, if the Closing AR Adjustment is greater than 10% of the Purchase Price; provided that if Buyer notifies Sellers in writing within one business day following Buyer s receipt of the Closing AR Estimate that Buyer agrees that, notwithstanding the provisions of Section 4.6, the Closing AR Adjustment shall equal 10% of the Purchase Price, then Sellers may not terminate this Agreement pursuant to this Section 9.1(f). 9.2 Break-Up Fee and Expense Reimbursement. (a) If this Agreement is terminated pursuant to Section 9.1(e), Sellers shall pay in cash to Buyer in accordance with Section 9.2(c) a break-up fee equal to $960,000 (the Break-Up Fee ), with Sellers being jointly and severally liable for such payment; provided, EMF_US v14 20

52 Exhibits A - J Page 26 of 172 however, that the Break-Up Fee shall not be payable to Buyer if this Agreement is terminated for any reason other than pursuant to Section 9.1(e). (b) If this Agreement is terminated pursuant to Section 9.1(e), Sellers shall, in addition to the Break-Up Fee in Section 9.2(a), pay in cash to Buyer in accordance with Section 9.2(c) and an amount equal to all Buyer Expenses as of the date of such termination up to a maximum of $500,000 (the Expense Reimbursement ), with the Sellers being jointly and severally liable for such payment; provided, however, that the Expense Reimbursement shall not be payable to Buyer if this Agreement is terminated for any reason other than pursuant to Section 9.1(e). (c) The Break-Up Fee shall be paid and payable in the nature of liquidated damages. The Expense Reimbursement shall be paid and payable as an actual damage, earned at the time of incurrence. The Break-Up Fee and the Expense Reimbursement shall be paid to Buyer in lieu of any other payments or damages under this Agreement (except for the return of the Good Faith Deposit pursuant to Section 2.6). The Break-Up Fee and the Expense Reimbursement shall be payable by Sellers in the event and at the time a Competing Bid is consummated from the proceeds thereof or otherwise as provided by Section 9.2(d). (d) Sellers obligation to pay the Break-Up Fee and the Expense Reimbursement pursuant to this Section 9.2 shall survive termination of this Agreement and shall constitute an administrative expense (which shall be a superpriority administrative expense claim senior to all other administrative expense claims and payable out of Sellers cash or other collateral securing Sellers obligations to its senior secured lenders, prior to any recovery by such lenders) of Sellers under section 364(c)(1) of the Bankruptcy Code. 9.3 Effect of Termination or Breach. If the transactions contemplated hereby are not consummated (a) this Agreement shall become null and void and of no further force and effect, except (i) for this Section 9.3, (ii) for the provisions of Sections 2.6, 9.2, 11.1, 11.6, 11.7, 11.8, 11.9, and hereof, and (iii) that the termination of this Agreement for any cause shall not relieve any party hereto from any Liability which at the time of termination had already accrued to any other party hereto or which thereafter may accrue in respect of any act or omission of such party prior to such termination; (b) the payment of the Break-Up Fee and Expense Reimbursement shall be sole and exclusive remedy (as liquidated damages) of Buyer; and (c) in the event this Agreement is terminated by Sellers pursuant to Section 9.1(d), the receipt by Sellers of the Good Faith Deposit shall be without prejudice to any other rights or remedies the Sellers may have as a result of any breach of this Agreement by Buyer. ARTICLE X POST-CLOSING COVENANTS 10.1 Employees. Buyer expects to offer employment immediately prior to the Closing (but contingent on the occurrence of the Closing) to such employees of Sellers actively employed or engaged principally in the Business as of the Closing Date as determined by Buyer in their sole discretion (such employees who accept such offer of employment, the Rehired Employees ) on terms and conditions as determined by Buyer in their sole discretion. Such offers shall be sufficient in number and as to terms and conditions so as not to give rise to any EMF_US v14 21

53 Exhibits A - J Page 27 of 172 obligations or liabilities of Sellers under the WARN Act; provided, however, that the foregoing obligation of Buyer is conditioned on the satisfaction by Sellers of all notice, payment and other obligations under the WARN Act with respect to employment terminations occurring during the period through and up to the Closing Date. Nothing contained in this Agreement shall confer upon any Rehired Employee any right to any term or condition of employment or to continuance of employment by Buyer or any of its Affiliates, nor shall anything herein interfere with the right of Buyer or any of its Affiliates to terminate the employment of any employee, including any Rehired Employee, at any time, with or without notice and for any or no reason, or restrict Buyer or any of its Affiliates in modifying any of the terms or conditions of employment of any employee, including any Rehired Employee, after the Closing Employee Benefit Plans. Buyer shall not assume any Employee Benefit Plan or any Liability thereunder or related thereto and Buyer shall provide only those benefits to Rehired Employees as of or after the Closing as Buyer, in its sole discretion, shall determine. Sellers shall be responsible for all obligations, Claims, or Liabilities at any time arising under or in connection with any Employee Benefit Plan. With respect to all claims by or benefits due to current and former employees, officers, directors or contractors of any Seller whenever arising under or in connection with any Employee Benefit Plan, whether insured or otherwise (including life insurance, medical and disability programs, retirement and pension plans), Sellers shall, at their own expense, honor, process, administer or pay or cause their respective insurance carriers (as applicable) to honor, process, administer or pay such claims or benefits, regardless of whether such claims are made or such benefits are due before or after the Closing, in accordance with the terms and conditions of such Employee Benefit Plans without regard to the employment by Buyer of any such employees after the Closing. Nothing contained in this Agreement, express or implied: (a) shall be construed to establish, amend, or modify any benefit or compensation plan, program, agreement or arrangement; (b) shall alter or limit the ability of any Buyer or any of its Affiliates to amend, modify or terminate any benefit or compensation plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them; or (c) is intended to confer upon any Person (including employees, retirees, or dependents or beneficiaries of employees or retirees) any rights as a third-party beneficiary of this Agreement Access to Information. For a period of seven years after the Closing Date, or longer to the extent necessary to respond to claims by Governmental Authorities or third parties, each party and their representatives shall have reasonable access to, and each shall have the right to photocopy, all of the books and records relating to the Business or the Purchased Assets, including all employee records or other personnel and medical records required by Law, legal process or subpoena, in the possession of the other party to the extent that such access may reasonably be required by such party in connection or relating to the Business, the Purchased Assets, the Excluded Assets, the Assumed Liabilities or Liabilities not assumed by Buyer. Such access shall be afforded by the party in possession of such books and records upon receipt of reasonable advance notice and during normal business hours; provided, however, that (i) any such investigation shall be conducted in such a manner as not to interfere unreasonably with the operation of the business of any party or its Affiliates, (ii) no party shall be required to take any action which would constitute a waiver of the attorney-client privilege and (iii) no party need supply the other party with any information which such party is under a legal obligation not to supply. The party exercising this right of access shall be solely responsible for any costs or EMF_US v14 22

54 Exhibits A - J Page 28 of 172 expenses incurred by it pursuant to this Section If the party in possession of such books and records shall desire to dispose of any such books and records upon or prior to the expiration of such period, such party shall, prior to such disposition, give the other party a reasonable opportunity at such other party s expense, to segregate and remove such books and records as such other party may select Tax Matters. (a) Transaction Treatment; Allocation of Purchase Price. Buyer and Sellers hereby agree that the purchase price for Federal and state income tax purposes shall equal the aggregate of the Purchase Price and an amount equal to the Assumed Liabilities ( Tax Purchase Price ). Buyer and Sellers shall cooperate as provided herein in determining (in accordance with all applicable Treasury Regulations promulgated under Section 1060 of the Code) the allocation of the final Tax Purchase Price among the Purchased Assets (the Allocation ). Within 30 days after the Closing, Buyer shall notify Sellers in writing of Buyer s proposed Allocation of the Tax Purchase Price among the Purchased Assets. Sellers shall be deemed to have accepted such Allocation unless, within 30 days after the date Buyer provided the proposed Allocation to Sellers, Sellers notifies Buyer in writing of (a) each amount of the proposed Allocation with which Sellers disagree and (b) for each such amount, the amount that Sellers propose as the appropriate amount. If Sellers provide such notice to Buyer, the parties shall proceed in good faith to resolve the amounts in dispute. If they are unable to do so within 20 days after the delivery of Sellers notice to Buyer, they shall retain a mutually acceptable independent accounting firm (with a valuation group) to do so, and the fees of such firm shall be paid 50% by Sellers and 50% by Buyer. Neither Buyer nor Sellers shall take, nor shall they permit any Affiliate to take, any position inconsistent with the Allocation as finally determined hereunder; provided, however, that (i) Buyer s cost for the Purchased Assets may differ from the Tax Purchase Price to the extent necessary to reflect Buyer s capitalized acquisition costs other than the Purchase Price and (ii) the amount realized by Sellers may differ from the Tax Purchase Price to the extent necessary to reflect transaction costs that reduce the amount realized by Sellers. To the extent the THD Note causes the transaction to be in part an installment sale under Section 453 of the Code (and the Buyer does not elect out of such treatment), the installment sale will be calculated and determined by treating the principal portion of the THD Note as purchasing a pro rata portion of each Purchased Asset, and imputing interest (to the extent needed) at the lowest Applicable Federal Rate for the term of the THD Note and the month which includes the Closing Date. (b) Tax-Sharing Agreements. All tax-sharing agreements or similar agreements with respect to or involving Sellers or any of their Affiliates or any other party shall be terminated as of the Closing Date and, on and after the Closing Date, the Buyer shall not be bound thereby or have any liability thereunder. (c) Cooperation. Buyer and Sellers jointly covenant and agree that, from and after the Closing Date, Buyer and Sellers will each use commercially reasonable efforts to cooperate with each other in connection with any action, suit, proceeding, investigation or audit of the other relating to (i) the preparation or audit of any Tax Return of any Seller or Buyer for periods prior to or including the Closing Date, (ii) any audit of Buyer and/or any audit of any Seller with respect to the sales, transfer and similar Taxes relating to the transactions EMF_US v14 23

55 Exhibits A - J Page 29 of 172 contemplated by this Agreement or (iii) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction on or prior to the Closing involving Sellers or any of their Affiliates. In furtherance hereof, Buyer and Sellers further covenant and agree to promptly respond to all reasonable inquiries related to such matters and to provide, to the extent reasonably possible, substantiation of transactions and to make available and furnish appropriate documents and personnel in connection therewith. All costs and expenses incurred in connection with this Section 10.4(c) referred to herein shall be borne by the party who is subject to such action Collections on Purchased Assets. If, after the Closing Date, Sellers shall receive payment with respect to any Purchased Assets, Sellers shall immediately deliver such funds or assets to Buyer and take all steps necessary to vest title to such funds or assets in Buyer. If after the Closing Date, Buyer shall receive payment with respect to any Excluded Assets, Buyer shall immediately deliver such funds or assets to Sellers and take all steps necessary to vest title to such funds or assets in Buyer Treatment of Purchased Assets. In the case of licenses, certificates, approvals, authorizations, Assumed Executory Contracts and other commitments included in the Purchased Assets (a) that cannot be transferred or assigned effectively without the consent of third parties, which consent has not been obtained prior to the Closing (after giving effect to the Sale Order and the Bankruptcy Code), Sellers shall, subject to any approval of the Bankruptcy Court that may be required, reasonably cooperate with Buyer, at the sole cost and expense of Buyer, in endeavoring to obtain such consent and, if any such consent is not obtained, Sellers shall, subject to any approval of the Bankruptcy Court that may be required, cooperate with Buyer in all reasonable respects and at Buyer's sole cost and expense, to provide to Buyer the benefits thereof in some other manner, or (b) that are otherwise not transferable or assignable (after giving effect to the Sale Order and the Bankruptcy Code), Sellers shall, subject to any approval of the Bankruptcy Court that may be required, reasonably cooperate with Buyer, at the sole cost and expense of Buyer, to provide to Buyer the benefits thereof in some other manner (including the exercise of the rights of Sellers thereunder) Further Assurances. From time to time after the Closing and without further consideration, (i) Sellers, upon the request of Buyer, shall take such actions and execute and deliver such documents and instruments of conveyance and transfer as Buyer may reasonably request in order to consummate more effectively the purchase and sale of the Purchased Assets as contemplated hereby and to vest in the applicable Buyer title to the Purchased Assets transferred hereunder, or to otherwise more fully consummate the transactions contemplated by this Agreement and (ii) Buyer, upon the request of Sellers, shall take such actions and execute and deliver such documents and instruments of contract or lease assumption as Sellers may reasonably request in order to confirm Buyer s Liability for the Assumed Liabilities or otherwise to more fully consummate the transactions contemplated by this Agreement. ARTICLE XI MISCELLANEOUS 11.1 Expenses. Except as provided in Section 9.2 hereof, each party hereto shall bear its own costs and expenses, including attorneys fees, with respect to the transactions EMF_US v14 24

56 Exhibits A - J Page 30 of 172 contemplated hereby. Notwithstanding the foregoing, in the event of any action or proceeding to interpret or enforce this Agreement, the prevailing party in such action or proceeding (i.e., the party who, in light of the issues contested or determined in the action or proceeding, was more successful) shall be entitled to have and recover from the non-prevailing party such costs and expenses (including all court costs and reasonable attorneys fees) as the prevailing party may incur in the pursuit or defense thereof Amendment. This Agreement may not be amended, modified or supplemented except by a written instrument signed by Sellers and Buyer Notices. Any notice, request, instruction or other document to be given hereunder by a party hereto shall be in writing and shall be deemed to have been given, (a) when received if delivered by hand (including by reputable overnight courier), (b) on the date of transmission if sent by facsimile or (if the sender on the same day sends a confirming copy of such notice by reputable overnight courier) or (c) upon delivery, or refusal of delivery, if deposited in the U.S. mail, certified or registered mail, return receipt requested, postage prepaid: To Sellers: with copy to: To Buyer: With copy to: Health Diagnostic Laboratory, Inc. 737 N. 5 th Street, Suite 200 Richmond, Virginia Attn: Douglas Sbertoli dsbertoli@hdlabinc.com Fax: (804) Hunton & Williams LLP Riverfront Plaza, East Tower 951 East Byrd Street Richmond, Virginia Attn: Tyler P. Brown tpbrown@hunton.com Fax: (804) True Health Diagnostics, LLC 6170 Research Road Frisco, Texas Attn: Chris Grottenthaler chris.grottenthaler@truehealthdiag.com Fax: (469) Perkins Coie LLP 131 South Dearborn Street, Suite 1700 Chicago, Illinois Attn: Michael Osterhoff mosterhoff@perkinscoie.com Fax: (312) EMF_US v14 25

57 Exhibits A - J Page 31 of 172 or to such other individual or address as a party hereto may designate for itself by notice given as herein provided Waivers. The failure of a party hereto at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same. No waiver by a party of any condition or of any breach of any term, covenant, representation or warranty contained in this Agreement shall be effective unless in writing by Sellers, in the case of a waiver by any Seller, or Buyer, in the case of any waiver by Buyer, and no waiver in any one or more instances shall be deemed to be a further or continuing waiver of any such condition or breach of other instances or a waiver of any other condition or breach of any other term, covenant, representation or warranty Counterparts and Execution. This Agreement may be executed simultaneously in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any counterpart may be executed by facsimile signature and such facsimile signature shall be deemed an original SUBMISSION TO JURISDICTION. THE PARTIES HEREBY AGREE THAT ANY AND ALL CLAIMS, ACTIONS, CAUSES OF ACTION, SUITS, AND PROCEEDINGS RELATING TO THIS AGREEMENT OR THE OTHER AGREEMENTS CONTEMPLATED HEREIN SHALL BE FILED AND MAINTAINED ONLY IN THE BANKRUPTCY COURT, AND THE PARTIES HEREBY CONSENT TO THE JURISDICTION OF SUCH COURT Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the Commonwealth of Virginia (regardless of the Laws that might otherwise govern under applicable Virginia principles of conflicts of Law) as to all matters, including matters of validity, construction, effect, performance and remedies Binding Nature; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto without prior written consent of the other parties (which shall not be unreasonably withheld or delayed), except that: (i) prior to Closing, Buyer may assign any of its rights and obligations hereunder to any Affiliate or Subsidiary of Buyer (whether wholly owned or otherwise) and to its lender; provided that no such assignment shall relieve Buyer of its obligations hereunder; (ii) the rights and interests of Sellers hereunder may be assigned to a trustee appointed under chapter 11 or chapter 7 of the Bankruptcy Code; (iii) this Agreement may be assigned to any entity appointed as a successor to Sellers pursuant to a confirmed Chapter 11 plan; and (iv) as otherwise provided in this Agreement No Third Party Beneficiaries. This Agreement is solely for the benefit of the parties hereto and nothing contained herein, express or implied, is intended to confer on any Person other than the parties hereto or their successors and permitted assigns, any rights, remedies, obligations, Claims, or causes of action under or by reason of this Agreement Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to this Agreement to express their mutual intent, and no rule of EMF_US v14 26

58 Exhibits A - J Page 32 of 172 strict construction shall be applied against any party. Any reference to any federal, state, local or foreign statute or law shall be deemed also to refer to all rules and Laws promulgated thereunder, unless the context requires otherwise Termination of Representations and Warranties. All representations and warranties made by Sellers and Buyer in this Agreement and in any certificate delivered pursuant to Section 4.3(a) or 4.4(c) shall terminate on the Closing Date upon the consummation of the transactions contemplated hereby, and neither Sellers nor Buyer shall have any liability after the Closing Date for any breach of any representation or warranty Public Announcements. Except as required by Law or in connection with the Chapter 11 Cases, neither Sellers nor Buyer shall issue any press release or public announcement concerning this Agreement or the transactions contemplated hereby without obtaining the prior written approval of the other parties hereto relating to the contents and manner of presentation and publication thereof, which approval will not be unreasonably withheld, conditioned or delayed. Prior to making any public disclosure required by applicable law, the disclosing parties shall give the other party a copy of the proposed disclosure and reasonable opportunity to comment on the same Entire Understanding. This Agreement, the Exhibits and the Schedules set forth the entire agreement and understanding of the parties hereto in respect to the transactions contemplated hereby and the Agreement, the Exhibits and the Schedules supersede all prior agreements, arrangements and understandings relating to the subject matter hereof and are not intended to confer upon any other Person any rights or remedies hereunder Severability. If any term, provision, covenant or restriction contained in this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions contained in this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable term, provision, covenant or restriction or any portion thereof had never been contained herein Headings. The headings in this Agreement are inserted for convenience only and shall not constitute a part hereof No Liability of Officers and Directors. The parties hereto acknowledge and agree that any individual executing this Agreement or any certificates or other documents contemplated by this Agreement on behalf of Buyer or Sellers do so on behalf of such entities and not in their individual capacities. As such, except for fraud, no officer, director, employee, or agent of Buyer or Sellers shall have any liability hereunder Specific Performance. The parties hereto agree that irreparable damage would occur in the event any of the provisions of this Agreement to be performed at or prior to the Closing were not performed in accordance with the terms hereof and that, prior to the Closing, the parties shall be entitled to specific performance of such provisions, in addition to any other remedy at law or in equity EMF_US v14 27

59 Exhibits A - J Page 33 of Guaranty. Leon Capital Group, LLC, a Texas limited liability company, hereby irrevocably and unconditionally guarantees to Sellers the payment of the cash portion of the Purchase Price required to be paid at Closing pursuant to Section 4.2(a). [SIGNATURE PAGES FOLLOW] EMF_US v14 28

60 Exhibits A - J Page 34 of 172

61 Exhibits A - J Page 35 of 172

62 Exhibits A - J Page 36 of 172 EXHIBIT B Sale Order

63 Exhibits A - J Page 37 of 172 IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION In re Health Diagnostic Laboratory, Inc., et al., Debtors. 1 Chapter 11 Case No (KRH) Jointly Administered ORDER (I) APPROVING ASSET PURCHASE AGREEMENT AND AUTHORIZING THE SALE OF ASSETS OF THE DEBTORS OUTSIDE THE ORDINARY COURSE OF BUSINESS, (II) AUTHORIZING THE SALE OF ASSETS FREE AND CLEAR OF ALL LIENS, CLAIMS, ENCUMBRANCES AND INTERESTS, (III) AUTHORIZING THE ASSUMPTION AND SALE AND ASSIGNMENT OF CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED LEASES AND (IV) GRANTING RELATED RELIEF Upon the motion, dated June 29, 2015 [Doc. No. 176] (the Motion ), of the abovecaptioned debtors and debtors-in-possession (the Debtors ), pursuant to sections 105(a), 363, and 365 of Title 11 of the United States Code, 11 U.S.C (as amended, the Bankruptcy Code ) and Rules 2002, 6004, and 6006 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ) and Rule of the Local Rules of the United States Bankruptcy Court for the Eastern District of Virginia (the Local Bankruptcy Rules ), and this 1 The Debtors in these cases, along with the last four digits of each Debtor s federal tax identification number, are: Health Diagnostic Laboratory, Inc. (0119), Central Medical Laboratory, LLC (2728) and Integrated Health Leaders, LLC (7832). HUNTON & WILLIAMS LLP Riverfront Plaza, East Tower 951 East Byrd Street Richmond, Virginia Telephone: (804) Facsimile: (804) Tyler P. Brown (VSB No ) Jason W. Harbour (VSB No ) Henry P. (Toby) Long, III (VSB No ) Justin F. Paget (VSB No ) Counsel to the Debtors and Debtors in Possession

64 Exhibits A - J Page 38 of 172 Court having entered the Order (I) Approving the Strategic Transaction Bidding Procedures, (II) Scheduling Bid Deadlines and the Auction, (III) Approving the Form and Manner of Notice Thereof and (IV) Granting Related Relief dated July 15, 2015 [Doc. No. 265] (the Strategic Transaction Bidding Procedures Order ), among other things, (i) authorizing the Debtors to solicit and consider offers for the Purchased Assets (as defined herein) and conduct an Auction 2 in accordance with the Strategic Transaction Bidding Procedures, 3 (ii) approving the form and manner of notice of the Auction and Sale Hearing and (iii) approving the manner in which the notice of the assumption and assignment of the Assumed and Assigned Contracts and proposed Cure Amounts related thereto (if any) (the Assumption and Assignment Notice and the Cure Notice ) would be provided and the procedures related to the assumption and assignment of the Assumed and Assigned Contracts; and the Debtors having solicited Bids in accordance with the Strategic Transaction Bidding Procedures; and the Debtors having conducted an Auction in accordance with the Strategic Transaction Bidding Procedures; and the Debtors (in consultation with the DIP Agent and the UCC) having selected True Health Diagnostics, LLC as the Successful Bidder for the assets identified as Purchased Assets (the Purchased Assets ) in Section 2.1 of the asset purchase agreement attached hereto as Exhibit A (the APA ) among the Successful Bidder and certain of the Debtors party thereto (collectively, the Sellers ) in accordance with the Strategic Transaction Bidding Procedures; and the Bankruptcy Court having 2 Capitalized terms not otherwise defined here shall have the meaning ascribed to such terms in the Motion. 3 Subsequent to filing the Motion, the Debtors filed the Motion of Debtors and Debtors in Possession for Entry of an Order (I) Approving Bidding Procedures for the Sale of All or Substantially All of the Assets of Central Medical Laboratories, LLC (II) Scheduling Bid Deadlines and the Auction, (III) Approving the Form and Manner of Notice Thereof and (IV) Granting Related Relief [Doc. No. 273], pursuant to which the Debtors sought approval to sell separately from the Purchased Assets the assets of Debtor Central Medical Laboratories. 2

65 Exhibits A - J Page 39 of 172 conducted a hearing on September 16, 2015 (the Sale Hearing ), to consider approval of (i) the APA, (ii) the sale and transfer (the Sale ) of the Purchased Assets free and clear of all liens, claims (as defined in section 101(5) of the Bankruptcy Code), Encumbrances (as defined in the APA), mortgages, pledges, charges, security interests, obligations, liabilities, contractual commitments or interests of any kind or nature except as expressly provided in the APA and/or this Order, and (iii) the transactions (including, without limitation, the assumption and assignment of the Assumed and Assigned Contracts), Transaction Documents and other agreements contemplated thereby (collectively, the Transactions ); and all parties in interest having been heard, or having had the opportunity to be heard, regarding the APA, the Sale and the Transactions; and upon the record of the hearing to consider approval of the Strategic Transaction Bidding Procedures (the Strategic Transaction Bidding Procedures Hearing ), the Sale Hearing, the Declaration of Martin McGahan, Chief Restructuring Officer of Health Diagnostic Laboratory, Inc., In Support of the Debtors Chapter 11 Petitions and First Day Pleadings [Doc. No. 4], and these chapter 11 cases and proceedings, and after due deliberation thereon, and good cause appearing therefor; IT IS HEREBY FOUND, DETERMINED AND CONCLUDED THAT: 4 A. The findings and conclusions set forth herein constitute the Court s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, made applicable to this proceeding pursuant to Bankruptcy Rule All findings of fact and conclusions of law announced by the Bankruptcy Court at the Sale Hearing in relation to the Motion are hereby incorporated herein to the extent not inconsistent herewith. 3

66 Exhibits A - J Page 40 of 172 B. To the extent any of the following findings of fact constitute conclusions of law, they are adopted as such. To the extent any of the following conclusions of law constitute findings of fact, they are adopted as such. C. The Bankruptcy Court has jurisdiction over this matter and over the property of the Debtors estates, including the Purchased Assets to be sold, transferred or conveyed pursuant to the APA and the Sale, pursuant to 28 U.S.C. 157 and This matter is a core proceeding pursuant to 28 U.S.C. 157(b)(2). Venue of these chapter 11 cases and the Motion in this district is proper pursuant to 28 U.S.C and D. The Purchased Assets constitute property of the Debtors estates and title thereto is vested in the Debtors estates within the meaning of section 541(a) of the Bankruptcy Code. E. The statutory predicates for the relief sought in the Motion and the bases for the approvals and authorizations herein are (i) sections 105(a), 363, and 365 of the Bankruptcy Code, (ii) Bankruptcy Rules 2002, 6004, 6006, and (iii) Local Rule F. On June 7, 2015 (the Petition Date ), the Debtors filed voluntary petitions for reorganization under Chapter 11 of the Bankruptcy Code. Since the Petition Date, the Debtors have continued in possession and management of their businesses and properties as debtors-inpossession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. G. As evidenced by the affidavits of services and publication filed with the Bankruptcy Court, proper, timely, adequate, and sufficient notice of the Motion, the Auction, and the Sale Hearing have been provided in accordance with sections 102(1), 363 and 365 of the Bankruptcy Code, Bankruptcy Rules 2002, 6004, 6006, 9006 and 9007 and Local Rule , and in compliance with the Strategic Transaction Bidding Procedures Order. Notice of the Sale 4

67 Exhibits A - J Page 41 of 172 Hearing was also published in The Wall Street Journal and Richmond Times-Dispatch. The Debtors also gave due and proper notice of the assumption, sale, and assignment of each Assumed and Assigned Contract to each non-debtor party to each such Assumed and Assigned Contract by listing each Assumed and Assigned Contract on (i) the Cure Notices filed on August 18, 2015 [Doc. No. 410], August 27, 2015 [Doc. No. 445], and September 2, 2015 [Doc. No. 462]; and (ii) the Assumption and Assignment Notice filed on September 11, 2015 [Doc. No. 479]. Such notice was good and sufficient and appropriate under the particular circumstances. No other or further notice of the Motion, the Auction, the Sale Hearing, the assumption and assignment of the Assumed and Assigned Contracts, or of the entry of this Order is necessary or shall be required. H. No section of any Assumed and Assigned Contract which purports to prohibit, restrict, or condition the use, tradename or assignment of any such Assumed and Assigned Contract to the Successful Bidder shall have any force or effect. I. A reasonable opportunity to object or be heard regarding the requested relief has been afforded to all interested persons and entities, including, without limitation, (i) the Office of the United States Trustee for the Eastern District of Virginia (the U.S. Trustee ); (ii) counsel to the official committee of unsecured creditors; (iii) DIP Agent; (iv) the United States of America, on behalf of the Centers for Medicare & Medicaid Services, United States Department of Health and Human Services; (v) the Department of Justice; (vi) the Office of the Inspector General of the Department of Health and Human Services; (vii) the Department of Defense s Defense Health Agency on behalf of the TRICARE program; (viii) the United States Office of Personnel Management; (xi) all taxing authorities having jurisdiction over any of the Purchased Assets 5

68 Exhibits A - J Page 42 of 172 subject to the sale, including the Internal Revenue Service; (x) the state/local environmental agencies in the jurisdictions where the Debtors own or lease real property; (xi) all parties that have requested special notice pursuant to Bankruptcy Rule 2002; (xii) all persons or entities known to the Debtors that have or have asserted a lien on, or security interest in, all or any portion of the Purchased Assets; (xiii) all Contract Parties; (xiv) counsel to the Successful Bidder; and (xv) all potential bidders previously identified or otherwise known to the Debtors, (collectively, the Notice Parties ). J. Other parties interested in bidding on the Purchased Assets were provided, upon request, sufficient information to make an informed judgment on whether to bid on the Purchased Assets. K. The Successful Bidder had no undue advantage over other potential buyers or bidders at the Auction and actions that would authorize avoidance or recovery under section 363(n) of the Bankruptcy Code have not occurred. L. The Debtors have demonstrated a sufficient basis and compelling circumstances authorizing them to enter into the APA, sell the Purchased Assets and assume and assign the Assumed and Assigned Contracts under sections 363 and 365 of the Bankruptcy Code, and such actions are appropriate exercises of the Debtors business judgment and in the best interests of the Debtors, their estates and their creditors. Such business reasons include, but are not limited to, the fact that (i) there is substantial risk of deterioration of the value of the Purchased Assets if the sale is not consummated quickly; (ii) the APA constitutes the highest or best offer for the Purchased Assets; (iii) the APA and the Closing (as defined in the APA) will present the best opportunity to realize the value of the Purchased Assets on a going concern basis and avoid 6

69 Exhibits A - J Page 43 of 172 decline and devaluation of the Debtors business; and (iv) unless the sale is concluded expeditiously as provided for in the Motion and pursuant to the APA, creditors recoveries may be diminished. M. The Strategic Transaction Bidding Procedures set forth in the Strategic Transaction Bidding Procedures Order were non-collusive, in good faith, substantively and procedurally fair to all parties. N. The Debtors and their professionals have complied, in good faith, in all respects with the Strategic Transaction Bidding Procedures Order. As demonstrated by (i) any testimony and other evidence proffered or adduced at the Sale Hearing and (ii) the representations of counsel made on the record at the Sale Hearing, through marketing efforts and a competitive sale process conducted in accordance with the Strategic Transaction Bidding Procedures Order, the Debtors (a) afforded interested potential purchasers a full, fair and reasonable opportunity to qualify as bidders and submit their highest or otherwise best offer to purchase the Purchased Assets, (b) provided potential purchasers, upon request, sufficient information to enable them to make an informed judgment on whether to bid on the Purchased Assets, and (c) considered any bids submitted on or before the Bid Deadline. O. The offer of the Successful Bidder, upon the terms and conditions set forth in the APA, including the form and total consideration to be realized by the Debtors pursuant to the APA, (i) is the highest and best offer received by the Debtors for the Purchased Assets; (ii) is fair and reasonable; (iii) is in the best interests of the Debtors creditors and estates; (iv) constitutes full and adequate consideration and reasonably equivalent value for the Purchased Assets; and 7

70 Exhibits A - J Page 44 of 172 (v) will provide a greater recovery for the Debtors creditors and other interested parties than would be provided by any other practically available alternative. P. The Successful Bidder is not an insider or affiliate of the Debtors as those terms are defined in the Bankruptcy Code. The Successful Bidder is a buyer in good faith, as that term is used in the Bankruptcy Code and the decisions thereunder, and is entitled to the protections of section 363(m) of the Bankruptcy Code with respect to all of the Purchased Assets, and is not subject to avoidance or recovery actions under section 363(n) of the Bankruptcy Code with respect to any of the Purchased Assets. The APA was negotiated and entered into in good faith, based upon arm s length bargaining, and without collusion or fraud of any kind. Neither the Debtors nor the Successful Bidder have engaged in any conduct that would prevent the application of section 363(m) of the Bankruptcy Code or implicate or cause the application of section 363(n) of the Bankruptcy Code to the APA or to the consummation of the sale transaction and transfer of the Purchased Assets, including the Assumed and Assigned Contracts to the Successful Bidder. The Successful Bidder is entitled to all the protections and immunities of section 363(m) of the Bankruptcy Code. Q. The Debtors have full corporate power and authority to execute the APA and all other documents contemplated thereby, and the sale of the Purchased Assets has been duly and validly authorized by all necessary corporate authority by the Debtors to consummate the transactions contemplated by the APA. No consents or approvals, other than as may be expressly provided for in the APA, are required by the Debtors to consummate such transactions. R. The Debtors have advanced sound business reasons for seeking to enter into the APA and to sell and/or assume and sell and assign the Purchased Assets, including without 8

71 Exhibits A - J Page 45 of 172 limitation the Assumed and Assigned Contracts, as more fully set forth in the Motion and as demonstrated at the Sale Hearing, and it is a reasonable exercise of the Debtors business judgment to sell the Purchased Assets and to consummate the transactions contemplated by the APA. Notwithstanding any requirement for approval or consent by any person, the transfer of the Purchased Assets to the Successful Bidder and the assumption and assignment of the Assumed and Assigned Contracts is a legal, valid and effective transfer of the Purchased Assets including any Assumed and Assigned Contracts. S. The terms and conditions of the APA, including the consideration to be realized by the Debtors pursuant to the APA, are fair and reasonable, and the transactions contemplated by the APA are in the best interests of the Debtors estates. T. Except as otherwise provided in the APA, the Purchased Assets shall be sold free and clear of all mortgages, restrictions, hypothecations, charges, indentures, loan agreements, instruments, leases, licenses, options, deeds of trust, security interests, conditional sale or other title retention agreements, pledges, liens (including, without limitation, mechanics, materialmens and other consensual and non-consensual liens and statutory liens), judgments, demands, encumbrances, rights of first refusal, offsets, setoffs, holdbacks, chargebacks, reconciliations, contracts, recoupment, rights of recovery, claims for reimbursement, contribution, indemnity, exoneration, products liability, alter-ego, environmental, pension, or tax, decrees of any court or foreign or domestic governmental entity, or charges of any kind or nature, if any, including, but not limited to, any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of ownership, debts arising in any way in connection with any agreements, acts, or failures to act, of the Debtors or the Debtors predecessors or 9

72 Exhibits A - J Page 46 of 172 affiliates, claims (as that term is used in the Bankruptcy Code), reclamation claims, obligations, liabilities, demands, guaranties, options, rights, contractual or other commitments, restrictions, interests and matters of any kind and nature, whether known or unknown, choate or inchoate, filed or unfiled, scheduled or unscheduled, noticed or unnoticed, recorded or unrecorded, perfected or unperfected, allowed or disallowed, contingent or non-contingent, liquidated or unliquidated, matured or unmatured, material or non-material, disputed or undisputed, whether arising prior to or subsequent to the commencement of the bankruptcy case, and whether imposed by agreement, understanding, law, equity or otherwise, including claims otherwise arising under doctrines or statutes of successor liability (collectively, Liens, Claims, Encumbrances and Interests ) with such Liens, Claims, Encumbrances and Interests to attach to the consideration to be received by the Debtors in exchange for the Purchased Assets in the same priority and subject to the same defenses and avoidability, if any, as before the Closing, and the Successful Bidder would not enter into the APA to purchase the Purchased Assets otherwise. U. The transfer of the Purchased Assets to the Successful Bidder is a legal, valid and effective transfer of the Purchased Assets, and, except as may otherwise be provided in the APA, shall vest the Successful Bidder with all right, title and interest of the Debtors in and to the Purchased Assets free and clear of any and all Liens, Claims, Encumbrances and Interests. Except as specifically provided in the APA or this Order, the Successful Bidder shall not assume or become liable for any Liens, Claims, Encumbrances and Interests relating to the Purchased Assets being sold by the Debtors. V. The transfer of the Purchased Assets to the Successful Bidder free and clear of all Liens, Claims, Encumbrances and Interests will not result in any undue burden or prejudice to 10

73 Exhibits A - J Page 47 of 172 any holders of any Liens, Claims, Encumbrances and Interests as all such Liens, Claims, Encumbrances and Interests of any kind or nature whatsoever shall attach to the net proceeds of the sale of the Purchased Assets received by the Debtors in the order of their priority, with the same validity, force and effect which they now have as against the Purchased Assets and subject to any claims and defenses the Debtors or other parties may possess with respect thereto. All persons having Liens, Claims, Encumbrances or Interests of any kind or nature whatsoever against or in any of the Debtors or the Purchased Assets shall be forever barred, estopped and permanently enjoined from pursuing or asserting such Liens, Claims, Encumbrances or Interests against the Successful Bidder, any of their assets, property, successors or assigns, or the Purchased Assets. W. The Debtors may sell the Purchased Assets free and clear of all Liens, Claims, Encumbrances and Interests of any kind or nature whatsoever because, in each case, one or more of the standards set forth in section 363(f) of the Bankruptcy Code has been satisfied. Those (i) holders of Liens, Claims, Encumbrances and Interests and (ii) non-debtor parties to the Assumed and Assigned Contracts, who did not object, or who withdrew their objections, to the sale of the Purchased Assets and the Motion are deemed to have consented pursuant to section 363(f)(2) of the Bankruptcy Code. All objections to the Motion have been resolved or overruled. Those holders of Liens, Claims, Encumbrances and Interests who did object fall within one or more of the other subsections of section 363(f) of the Bankruptcy Code and are adequately protected by having their Liens, Claims, Encumbrances and Interests, if any, attach to the proceeds of the sale of the Purchased Assets ultimately attributable to the property against or in which they claim or may claim any Liens, Claims, Encumbrances and Interests, with such Liens, Claims, 11

74 Exhibits A - J Page 48 of 172 Encumbrances and Interests being subject to treatment by separate order of this Bankruptcy Court. X. Not selling the Purchased Assets free and clear of all Liens, Claims, Encumbrances and Interests would adversely impact the Debtors estates, and the sale of Purchased Assets other than one free and clear of all Liens, Claims, Encumbrances and Interests would be of substantially less value to the Debtors estates. Y. The Debtors and the Successful Bidder have, to the extent necessary, satisfied the requirements of section 365 of the Bankruptcy Code, including sections 365(b)(1)(A), (B) and 365(f) of the Bankruptcy Code, in connection with the Sale of the Purchased Assets and the assumption and assignment of the Assumed and Assigned Contracts. The Successful Bidder has demonstrated adequate assurance of future performance with respect to the Assumed and Assigned Contracts pursuant to section 365(b)(1)(C) of the Bankruptcy Code. The Assumed and Assigned Contracts are assignable notwithstanding any provisions contained therein to the contrary. Pursuant to the APA, the required cures and/or other payments or actions will be made to assume and assign the Assumed and Assigned Contracts to the Successful Bidder. The assumption and assignment of the Assumed and Assigned Contracts pursuant to the terms of this Order is integral to the APA and is in the best interests of the Debtors, their estates, their creditors and other parties in interest, and represents the exercise of sound and prudent business judgment by the Debtors. Z. The Successful Bidder is acting in good faith, pursuant to section 363(m) of the Bankruptcy Code, in closing the transactions contemplated by the APA at any time on or after the entry of this Order and cause has been shown as to why this Order, in the absence of a stay 12

75 Exhibits A - J Page 49 of 172 pending appeal, should not be subject to the stay provided by Bankruptcy Rules 6004(h) and 6006(d). AA. The transactions contemplated under the APA do not amount to a consolidation, merger or de facto merger of the Successful Bidder and the Debtors and/or the Debtors estates, there is not substantial continuity between the Successful Bidder and the Debtors, there is no common identity between the Debtors and the Successful Bidder, there is no continuity of enterprise between the Debtors and the Successful Bidder, the Successful Bidder is not a mere continuation of the Debtors or their estates, and the Successful Bidder does not constitute a successor to the Debtors or their estates. Other than the Assumed Obligations, the Successful Bidder shall have no obligations with respect to any liabilities of the Debtors, including, without limitation, the Excluded Liabilities, and the Debtors and the UCC will release and forever discharge the Successful Bidder and any of its affiliates, its successors and assigns from any and all claims, causes of action, obligations, liabilities, demands, losses, costs and expenses of any kind, character or nature whatsoever, known or unknown, fixed or contingent, relating to the Sale, except for liabilities and obligations under the APA. BB. The sale of the Purchased Assets outside of a plan of reorganization pursuant to the APA neither impermissibly restructures the rights of the Debtors creditors nor impermissibly dictates the terms of a liquidating plan of reorganization for the Debtors. The sale does not constitute a sub rosa chapter 11 plan. CC. The total consideration provided by the Successful Bidder for the Purchased Assets is the highest and best offer received by the Debtors, and the Purchase Price constitutes (a) reasonably equivalent value under the Bankruptcy Code and the Uniform Fraudulent Transfer 13

76 Exhibits A - J Page 50 of 172 Act, (b) fair consideration under the Uniform Fraudulent Conveyance Act and (c) reasonably equivalent value, fair consideration and fair value under any other applicable laws of the United States, any state, territory or possession, or the District of Columbia, for the Purchased Assets. NOW, THEREFORE, BASED UPON ALL OF THE FOREGOING, IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT: 1. The relief requested in the Motion is granted as set forth herein. The Motion complies with all aspects of Local Rule The requirements of Local Rule regarding the Motion are waived. The requirements of Local Rule (D) are waived. 2. All objections, responses, and requests for continuance concerning the Motion are resolved in accordance with the terms of this Order and as set forth in the record of the Sale Hearing. To the extent any such objection, response or request for continuance was not otherwise withdrawn, waived, or settled, it, and all reservations of rights contained therein, is overruled and denied. 3. Notice of the Sale Hearing was fair and equitable under the circumstances and complied in all respects with section 102(1) of the Bankruptcy Code and Bankruptcy Rules 2002, 6004 and Approval of Sale 4. The Sale of the Purchased Assets to the Successful Bidder, the terms and conditions of the APA (including all schedules and exhibits affixed thereto), and the Transactions contemplated thereby be, and hereby are, authorized and approved in all respects. 5. The Sale of the Purchased Assets and the consideration provided by the Successful Bidder under the APA is fair and reasonable and shall be deemed for all purposes to 14

77 Exhibits A - J Page 51 of 172 constitute a transfer for reasonably equivalent value and fair consideration under the Bankruptcy Code and any other applicable law. 6. The Successful Bidder is hereby granted and is entitled to all of the protections provided to a good faith buyer under section 363(m) of the Bankruptcy Code, including with respect to the transfer of the Assumed and Assigned Contracts as part of the sale of the Purchased Assets pursuant to section 365 of the Bankruptcy Code and this Order. 7. Pursuant to section 363(m) of the Bankruptcy Code, if any or all of the provisions of this Order are hereafter reversed, modified, or vacated by a subsequent order of this Bankruptcy Court or any other court, such reversal, modification, or vacatur shall not affect the validity and enforceability of any transfer under the APA or obligation or right granted pursuant to the terms of this Order (unless stayed pending appeal), and notwithstanding any reversal, modification or vacatur shall be governed in all respects by the original provisions of this Order and the APA, as the case may be. 8. The Debtors are hereby authorized to fully assume, perform under, consummate and implement the terms of the APA together with any and all additional instruments and documents that may be reasonably necessary or desirable to implement and effectuate the terms of the APA, this Order and Sale of the Purchased Assets to the Successful Bidder contemplated thereby including, without limitation, deeds, assignments, stock powers and other instruments of transfer, and to take all further actions as may reasonably be requested by the Successful Bidder for the purpose of assigning, transferring, granting, conveying and conferring to the Successful Bidder, or reducing to possession any or all of the Purchased Assets or Assumed Obligations, as may be necessary or appropriate to the performance of the Debtors obligations as contemplated 15

78 Exhibits A - J Page 52 of 172 by the APA, without any further corporate action or orders of this Bankruptcy Court. Neither the Successful Bidder nor the Debtors shall have any obligation to proceed with the Closing of the APA until all conditions precedent to their respective obligations to do so have been met, satisfied or waived. 9. The Debtors and each other person or entity having duties or responsibilities under the APA, any agreements related thereto or this Order, and their respective directors, officers, employees, members, agents, representatives, and attorneys, are authorized and empowered, subject to the terms and conditions contained in the APA, to carry out all of the provisions of the APA and any related agreements; to issue, execute, deliver, file, and record, as appropriate, the documents evidencing and consummating the APA, and any related agreements; to take any and all actions contemplated by the APA, any related agreements or this Order; and to issue, execute, deliver, file, and record, as appropriate, such other contracts, instruments, releases, indentures, mortgages, deeds, bills of sale, assignments, leases, or other agreements or documents and to perform such other acts and execute and deliver such other documents, as are consistent with, and necessary or appropriate to implement, effectuate, and consummate, the APA, any related agreements and this Order and the transactions contemplated thereby and hereby, all without further application to, or order of, the Bankruptcy Court or further action by their respective directors, officers, employees, members, agents, representatives, and attorneys, and with like effect as if such actions had been taken by unanimous action of the respective directors, officers, employees, members, agents, representatives, and attorneys of such entities. 10. The secretary or any assistant secretary of the Debtors shall be, and hereby is, authorized to certify or attest to any of the foregoing actions (but no such certification or 16

79 Exhibits A - J Page 53 of 172 attestation shall be required to make any such action valid, binding and enforceable). The Debtors are further authorized and empowered to cause to be filed with the secretary of state of any state or other applicable officials of any applicable governmental units, any and all certificates, agreements, or amendments necessary or appropriate to effectuate the transactions contemplated by the APA, any related agreements and this Order, including amended and restated certificates or articles of incorporation and by-laws or certificates or articles of amendment, and all such other actions, filings, or recordings as may be required under appropriate provisions of the applicable laws of all applicable governmental units or as any of the officers of the Debtors may determine are necessary or appropriate. The execution of any such document or the taking of any such action shall be, and hereby is, deemed conclusive evidence of the authority of such person to so act. Without limiting the generality of the foregoing, this Order shall constitute all approvals and consents, if any, required by the corporation laws of the Commonwealth of Virginia, and all other applicable business corporation, trust, and other laws of the applicable governmental units with respect to the implementation and consummation of the APA, any related agreements and this Order, and the transactions contemplated thereby and hereby. 11. Effective as of the Closing, (a) the sale of the Purchased Assets by the Debtors to the Successful Bidder shall constitute a legal, valid and effective transfer of the Purchased Assets notwithstanding any requirement for approval or consent by any person and shall vest the Successful Bidder with all right, title and interest of the Debtors in and to the Purchased Assets, free and clear of all Liens, Claims, Encumbrances and Interests of any kind, pursuant to section 363(f) of the Bankruptcy Code, and (b) the assumption of any Assumed Obligations by the 17

80 Exhibits A - J Page 54 of 172 Successful Bidder constitutes a legal, valid and effective delegation of any Assumed Obligations to the Successful Bidder and divests the Debtors of all liability with respect to any Assumed Obligations. Transfer of Assets 12. Except to the extent specifically provided in the APA, upon the Closing, the Debtors shall be, and hereby are, authorized and empowered, pursuant to sections 105, 363(b) and 363(f) of the Bankruptcy Code, to sell the Purchased Assets to the Successful Bidder. The Sale of the Purchased Assets vests the Successful Bidder with all right, title and interest of the Debtors in and to the Purchased Assets free and clear of any and all Liens, Claims, Encumbrances and Interests and other liabilities and claims, whether secured or unsecured, choate or inchoate, filed or unified, scheduled or unscheduled, noticed or unnoticed, recorded or unrecorded, contingent or non-contingent, liquidated or unliquidated, matured or unmatured, disputed or undisputed, or known or unknown, whether arising prior to or subsequent to the Petition Date, whether imposed by agreement, understanding, law, equity or otherwise, with all such Liens, Claims, Encumbrances and Interests to attach only to the proceeds of the Sale with the same priority, validity, force, and effect, if any, as they now have in or against the Purchased Assets, subject to all claims and defenses the Debtors may possess with respect thereto. The Motion shall be deemed to provide sufficient notice as to the sale of the Purchased Assets free and clear of Liens, Claims, Encumbrances and Interests in accordance with Local Rule Following the Closing Date, no holder of any Liens, Claims, Encumbrances and Interests in the Purchased Assets may interfere with the Successful Bidder s use and enjoyment of the Purchased Assets based on or related to such Liens, Claims, Encumbrances and Interests, or any actions that 18

81 Exhibits A - J Page 55 of 172 the Debtors may take in their chapter 11 cases and no person may take any action to prevent, interfere with or otherwise enjoin consummation of the transactions contemplated in or by the APA or this Order. In addition, the Debtors shall be authorized, but not directed, without further order of this Court, to pay and satisfy from the proceeds of the Sale secured claims of holders of Liens, Claims, Encumbrances and Interests, including without limitation, secured claims of the DIP Lender (as defined in the Final Order (I) Authorizing Debtors to Obtain Post-Petition Secured, Superpriority Financing Pursuant to 11 U.S.C. 105, 361, 362, and 364 [Doc No. 436] (the DIP Order )), CMS (as defined in the DIP Order), and BB&T (as defined in the DIP Order); provided, however, that this Order does not limit the Debtors obligations to repay the DIP Lender under the DIP Order or the DIP Credit Agreement. Notwithstanding anything to the contrary in the APA or this Order, (i) the Debtors shall pay to the United States its Allowed Secured Claim (as defined in the DIP Order), which in accordance with the DIP Order shall not exceed $4,500,000, within five (5) business days after receiving $4,500,000 of payments under the THD Note (as defined in the APA); and (ii) to the extent the Debtors or the Successful Bidder receive more than $4,500,000 in total Prepetition Payments (as defined in the DIP Order), the Debtors shall pay to CMS the amount of such overpayments in excess of the total of $4,500,000 within five (5) business days of receipt and knowledge of such excess amounts, whether such knowledge is the result of internal review or notice from CMS and/or its counsel. Further, on the date of the closing of the Sale to the Successful Bidder, CMS may process the voluntary termination of the Debtors Medicare enrollment agreements and their associated provider transaction access numbers; however, for the avoidance of doubt, the Debtors may continue to submit claims for Medicare services that they provide before and up to the date of the 19

82 Exhibits A - J Page 56 of 172 Sale closing and CMS shall continue to pay such claims pursuant to Medicare statutes, regulations, policies and procedures notwithstanding the termination of the Debtors Medicare enrollment agreements and their associated provider transaction access numbers. 13. The provisions of this Order authorizing the sale of the Purchased Assets free and clear of Liens, Claims, Encumbrances and Interests and the Assumed Obligations, shall be selfexecuting, and neither the Debtors nor the Successful Bidder shall be required to execute or file releases, termination statements, assignments, consents, or other instruments in order to effectuate, consummate and implement the provisions of this Order. However, the Debtors and the Successful Bidder, and each of their respective officers, employees and agents are hereby authorized and empowered to take all actions and execute and deliver any and all documents and instruments that either the Debtors or the Successful Bidder deem necessary or appropriate to implement and effectuate the terms of the APA and this Sale Order. Moreover, effective as of the Closing, the Successful Bidder, its successors and assigns, shall be designated and appointed the Debtors true and lawful attorney and attorneys, with full power of substitution, in the Debtors name and stead, on behalf and for the benefit of the Successful Bidder, its successors and assigns, to demand and receive any and all of the Purchased Assets and to give receipts and releases for and in respect of the Purchased Assets, or any part thereof, and from time to time to institute and prosecute in the Debtors name, for the benefit of the Successful Bidder, its successors and assigns, any and all proceedings at law, in equity or otherwise, which the Successful Bidder, its successors and assigns, may deem proper for the collection or reduction to possession of any of the Purchased Assets, and to do all acts and things with respect to the Purchased Assets which the Successful Bidder, its successors and assigns, shall deem desirable. 20

83 Exhibits A - J Page 57 of 172 The foregoing powers are coupled with an interest and are and shall be irrevocable by the Debtors. 14. On or before the Closing Date, the Debtors creditors are authorized and directed to execute such documents and take all other actions as may be necessary to release any Liens, Claims, Encumbrances or Interests of any kind against the Purchased Assets, as such Liens, Claims, Encumbrances or Interests may have been recorded or may otherwise exist. If any person or entity that has filed financing statements or other documents or agreements evidencing any Liens, Claims, Encumbrances or Interests in or against the Purchased Assets shall not have delivered to the Debtors prior to the Closing after request therefor, in proper form for filing and executed by the appropriate parties, termination statements, instruments of satisfaction, or releases of all such Liens, Claims, Encumbrances or Interests that the person or entity has with respect to the Purchased Assets, the Debtors are hereby authorized to execute and file such statements, instruments, releases and other documents on behalf of the person or entity with respect to such Purchased Assets prior to the Closing, and the Successful Bidder is authorized to file such documents after Closing. 15. To the greatest extent available under applicable law, the Successful Bidder shall be authorized, as of the Closing Date, to operate under any license, permit, registration and governmental authorization or approval of the Debtors with respect to the Purchased Assets, and all such licenses, permits, registrations and governmental authorizations and approvals are deemed to have been, and hereby are, directed to be transferred to the Successful Bidder as of the Closing Date. 21

84 Exhibits A - J Page 58 of All of the Debtors interests in and to the Purchased Assets to be acquired by the Successful Bidder under the APA shall be, as of the Closing Date and upon the occurrence of the Closing, transferred to and vested in the Successful Bidder. Upon the occurrence of the Closing, this Order shall be considered and constitute for any and all purposes a full and complete general assignment, conveyance and transfer of the Purchased Assets acquired by the Successful Bidder under the APA and/or a bill of sale or assignment transferring good and marketable, indefeasible title and interest in the Purchased Assets to the Successful Bidder. 17. Except as expressly provided in the APA, the Successful Bidder is not assuming nor shall it or any affiliate of the Successful Bidder be in any way liable or responsible, as a successor or otherwise, for any liabilities, debts, or obligations of the Debtors in any way whatsoever relating to or arising from the Debtors ownership or use of the Purchased Assets prior to the consummation of the transactions contemplated by the APA, or any liabilities calculable by reference to the Debtors or their operations or the Purchased Assets, or relating to continuing or other conditions existing on or prior to consummation of the transactions contemplated by the APA, which liabilities, debts, and obligations are hereby extinguished insofar as they may give rise to liability, successor or otherwise, against the Successful Bidder or any affiliate of the Successful Bidder. 18. Except as otherwise provided in the APA, on the Closing Date, each of the Debtors creditors is authorized and directed to execute such documents and take all other actions as may be necessary to release their respective Liens, Claims, Encumbrances and Interests against the Purchased Assets, if any, as may have been recorded or may otherwise exist. 22

85 Exhibits A - J Page 59 of Except as otherwise expressly provided in the APA, all persons or entities, presently or on or after the Closing Date, in possession of some or all of the Purchased Assets are directed to surrender possession of the Purchased Assets to the Successful Bidder on the Closing Date or at such time thereafter as the Successful Bidder may request. Assumed and Assigned Contracts 20. Subject to the terms of the APA and the occurrence of the Closing Date, the assumption by the Debtors of the Assumed and Assigned Contracts and the assignment of such Assumed and Assigned Contracts to the Successful Bidder, as provided for or contemplated by the APA, be, and hereby is, authorized and approved pursuant to sections 363 and 365 of the Bankruptcy Code. 21. The Assumed and Assigned Contracts shall be deemed valid and binding and in full force and effect and assumed by the Debtors and assigned to the Successful Bidder at the Closing, pursuant to sections 363 and 365 of the Bankruptcy Code, subject only to the payment of all cures and/or other payments or actions required to assume and assign the Assumed and Assigned Contracts to the Successful Bidder. 22. Upon the Closing, in accordance with sections 363 and 365 of the Bankruptcy Code, the Successful Bidder shall be fully and irrevocably vested in all right, title and interest of each Assumed and Assigned Contract. As contemplated by the APA, the Debtors shall cooperate with, and take all actions reasonably requested by, the Successful Bidder to effectuate the foregoing. 23. Pursuant to sections 365(b)(l)(A) and (B) of the Bankruptcy Code, and except as otherwise provided in this Order or in the APA, the Successful Bidder shall promptly pay or 23

86 Exhibits A - J Page 60 of 172 cause to be paid to the parties to any Assumed and Assigned Contracts the requisite Cure Amounts, if any, set forth in the Cure Notice served by the Debtors on each of the parties to the Assumed and Assigned Contracts, or other amount that may be agreed to between the Successful Bidder and/or the Debtors, and parties to any Assumed and Assigned Contracts, with respect to the assumption and assignment thereof. The Cure Amounts are hereby fixed at the amounts set forth in the Cure Notice served by the Debtors, the amounts determined on the record of the Sale Hearing or at a subsequent hearing contemplated by Paragraph 30 of this Order, or as mutually agreed to by the Successful Bidder and/or the Debtors, and parties to any Assumed and Assigned Contracts, as the case may be, and the non-debtor parties to the Assumed and Assigned Contracts are forever bound by such fixed amounts and are hereby enjoined from taking any action against the Successful Bidder or the Purchased Assets with respect to any claim for cure under any Assumed and Assigned Contracts. 24. All defaults or other obligations under the Assumed and Assigned Contracts arising prior to the Closing (without giving effect to any acceleration clauses or any default provisions of the kind specified in section 365(b)(2) of the Bankruptcy Code) shall be deemed cured by payment of the Cure Amounts and the non-debtor parties to such Assumed and Assigned Contracts shall be forever barred and estopped from asserting or claiming against the Debtors or the Successful Bidder that any additional amounts are due or other defaults exist. 25. Any provision in any Assumed and Assigned Contract that purports to declare a breach, default or payment right as a result of an assignment or a change of control in respect of the Debtors is unenforceable, and all Assumed and Assigned Contracts shall remain in full force and effect, subject only to payment of the appropriate Cure Amount, if any. No sections or 24

87 Exhibits A - J Page 61 of 172 provisions of any Assumed and Assigned Contract that purports to provide for additional payments, penalties, charges, or other financial accommodations in favor of the non-debtor third party to the Assumed and Assigned Contracts shall have any force and effect with respect to the transactions contemplated by the APA and assignments authorized by this Order, and such provisions constitute unenforceable anti-assignment provisions under section 365(f) of the Bankruptcy Code and/or are otherwise unenforceable under section 365(e) of the Bankruptcy Code and no assignment of any Assumed and Assigned Contract pursuant to the terms of the APA in any respect constitutes a default under any Assumed and Assigned Contract. The nondebtor party to each Assumed and Assigned Contract shall be deemed to have consented to such assignment under section 365(c)(1)(B) of the Bankruptcy Code, and the Successful Bidder shall enjoy all of the rights and benefits under each such Assumed and Assigned Contract as of the applicable date of assumption without the necessity of obtaining such non-debtor party s written consent to the assumption or assignment thereof. 26. The Successful Bidder has satisfied all requirements under sections 365(b)(1) and 365(f)(2) of the Bankruptcy Code to provide adequate assurance of future performance under the Assumed and Assigned Contracts. 27. The Debtors and their estates shall be relieved of any liability for any breach of any of the Assumed and Assigned Contracts occurring from and after Closing, pursuant to and in accordance with section 365(k) of the Bankruptcy Code. 28. The non-debtor parties shall be prohibited from charging any rent acceleration, assignment fees, increases or other fees to the Successful Bidder as a result of the assumption and assignment of the Assumed and Assigned Contracts. 25

88 Exhibits A - J Page 62 of Notwithstanding anything to the contrary herein or in the Strategic Transaction Bidding Procedures, no executory contract or unexpired lease shall be considered an Assumed and Assigned Contract under this Order unless and until such executory contract or unexpired lease shall have been assumed and assigned by the Debtors in accordance with the Assumption Procedures. 30. Any timely objection to the assumption and assignment of any Assumed and Assigned Contract and/or proposed Cure Amounts related thereto that is filed and served in accordance with the Assumption Procedures that has not been resolved, withdrawn or overruled on or prior to the Closing may be heard at a later date as set by the Bankruptcy Court after the Closing of the Sale. The Debtors may, in their sole discretion, resolve objections to proposed Cure Amounts without any further notice to or action by any party or order of the Court (including without limitation by determining with the Successful Bidder that an executory contract or unexpired lease shall not be an Assumed and Assigned Contract or by the Successful Bidder paying any agreed Cure Amounts); provided that notice to and consent of Successful Bidder shall be required to the extent the Successful Bidder is liable for such Cure Amounts pursuant to the APA. Additional Provisions 31. Each and every federal, state, and local governmental agency or department is hereby directed to accept any and all documents and instruments necessary and appropriate to consummate the transactions contemplated by the APA and this Order. 32. Pursuant to Section 525 of the Bankruptcy Code, no governmental unit may revoke or suspend any permit or license relating to the operation of the Purchased Assets sold, 26

89 Exhibits A - J Page 63 of 172 transferred or conveyed to the Successful Bidder on account of the filing or pendency of these chapter 11 cases or the consummation of the transaction contemplated by the APA. 33. The Successful Bidder has not assumed and is not otherwise obligated for any of the Debtors liabilities other than the Assumed Obligations and as otherwise set forth in the APA, and the Successful Bidder has not purchased any of the Excluded Assets. The Successful Bidder has not assumed and is not otherwise obligated for any of Debtors liabilities or obligations arising under the DOJ Settlement Agreement (as that term is defined in the APA) or any other related federal or state agreement as a successor in interest or otherwise except as provided for in Section 2.4(c) of the APA. Consequently, all persons, Governmental Units (as defined in sections 101(27) and 101(41) of the Bankruptcy Code) and all holders of Liens, Claims, Encumbrances and Interests based upon or arising out of liabilities retained by the Debtors are hereby enjoined from taking any action against the Successful Bidder or the Purchased Assets, including asserting any holdback, chargeback, setoff, administrative freeze, reconciliation, right of subrogation or recoupment of any kind, to recover any Liens, Claims, Encumbrances and Interests or on account of any liabilities of the Debtors other than Assumed Obligations pursuant to the APA. All persons holding or asserting any Liens, Claims, Encumbrances and Interests in the Excluded Assets are hereby enjoined from asserting or prosecuting such Liens, Claims, Encumbrances and Interests or cause of action against the Successful Bidder or the Purchased Assets for any liability associated with the Excluded Assets. 34. The Successful Bidder is not a successor to the Debtors or their estates by reason of any operation of statute or theory of law or equity, and the Successful Bidder shall not assume, nor be deemed to assume, or in any way be responsible for any liability or obligation of 27

90 Exhibits A - J Page 64 of 172 any of the Debtors and/or their estates including, but not limited to, any bulk sales law, successor liability, liability or responsibility for any claim against the Debtors or against an insider of the Debtors, or similar liability except as otherwise expressly provided in the APA, and the Motion contains sufficient notice of such limitation in accordance with Local Rule Except to the extent the Successful Bidder assumes the Assumed Obligations pursuant to the APA, neither the purchase of the Purchased Assets by the Successful Bidder, nor the fact that the Successful Bidder is using any of the Purchased Assets previously operated by the Debtors, will cause the Successful Bidder to be deemed a successor in any respect to the Debtors or their businesses within the meaning of (i) any foreign, federal, state or local revenue, pension, ERISA, tax, labor, employment, antitrust, environmental, or other law, rule or regulation (including without limitation filing requirements under any such laws, rules or regulations), (ii) under any products liability law or doctrine with respect to the Debtors liability under such law, rule or regulation or doctrine, or under any product warranty liability law or doctrine with respect to the Debtors liability under such law, rule or regulation or doctrine, (iii) any employment or labor agreements, consulting agreements, severance arrangements, change-in-control agreements or other similar agreement to which the Debtors are a party, (iv) any pension, welfare, compensation or other employee benefit plans, agreements, practices and programs, including, without limitation, any pension plan of the Debtors, (v) the cessation of the Debtor s operations, dismissal of employees, or termination of employment or labor agreements or pension, welfare, compensation or other employee benefit plans, agreements, practices and programs, obligations that might otherwise arise from or pursuant to the Employee Retirement Income Security Act of 1974, as amended, the Fair Labor Standard Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination 28

91 Exhibits A - J Page 65 of 172 and Employment Act of 1967, the Federal Rehabilitation Act of 1973, the National Labor Relations Act, the Consolidated Omnibus Budget Reconciliation Act of 1985, COBRA, or the Worker Adjustment and Retraining Notification Act, (vi) environmental liabilities, debts, claims or obligations arising from conditions first existing on or prior to Closing (including, without limitation, the presence of hazardous, toxic, polluting, or contaminating substances or wastes), which may be asserted on any basis, including, without limitation, under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C et seq., (vii) any liabilities, debts or obligations of or required to be paid by, the Debtors for any taxes of any kind for any period, (viii) any liabilities, debts, commitments or obligations for any taxes relating to the operation of the Purchased Assets prior to Closing, or (ix) any litigation. 35. Except to the extent expressly included in the Assumed Obligations, pursuant to sections 105 and 363 of the Bankruptcy Code, all persons and entities, including, but not limited to, the Debtors, the UCC, all creditors, debt security holders, equity security holders, the Debtors employees or former employees, governmental, tax and regulatory authorities, lenders, parties to or beneficiaries under any benefit plan, trade and other creditors asserting or holding a Lien, Claim, Encumbrance or Interest of any kind or nature whatsoever against, in or with respect to any of the Debtors or the Purchased Assets (whether legal or equitable, secured or unsecured, matured or unmatured, contingent or non-contingent, senior or subordinated), arising under or out of, in connection with, or in any way relating to the Debtors, the Purchased Assets, the operation of the Debtors businesses prior to the Closing Date or the transfer of the Purchased Assets to the Successful Bidder, shall be forever barred, estopped, and permanently enjoined from asserting, prosecuting or otherwise pursuing such Lien, Claim, Encumbrance or Interest, 29

92 Exhibits A - J Page 66 of 172 whether by payment, setoff, holdback, chargeback, administrative freeze, reconciliation or otherwise, directly or indirectly, against the Successful Bidder or any affiliates, successors or assigns thereof and each of their respective current and former members, officers, directors, managed funds, investment advisors, attorneys, employees, partners, affiliates, financial advisors and representatives (each of the foregoing in its individual capacity), or the Purchased Assets. For the avoidance of doubt, the foregoing shall not prevent the Debtors, their estates, successors or permitted assigns from pursuing claims, if any, against the Successful Bidder and/or their successors and assigns in accordance with the terms of the APA. 36. Other than the Assumed Obligations or as otherwise provided for in the APA, the Successful Bidder shall have no obligations with respect to any liabilities of the Debtors, including, without limitation, the Excluded Liabilities, and to the extent set forth in the APA, the Debtors and the UCC are deemed to release and forever discharge the Successful Bidder and any of its affiliates, successors and assigns from any and all claims, causes of action, obligations, liabilities, demands, losses, costs and expenses of any kind, character or nature whatsoever, known or unknown, fixed or contingent, relating to the Sale, except for liabilities and obligations under the APA. 37. Subject to the terms of the APA, the APA and any related agreements may be waived, modified, amended, or supplemented by written agreement of the Debtors and the Successful Bidder, without further action or order of the Bankruptcy Court; provided, however, that any such written waiver, modification, amendment, or supplement is not material and substantially conforms to, and effectuates, the APA and any related agreements. 30

93 Exhibits A - J Page 67 of The failure specifically to include any particular provisions of the APA or any related agreements in this Order shall not diminish or impair the effectiveness of such provision, it being the intent of the Bankruptcy Court, the Debtors and the Successful Bidder that the APA and any related agreements are authorized and approved in their entirety with such amendments thereto as may be made by the parties in accordance with this Order prior to Closing. 39. To the extent any provisions of this Order conflict with the terms and conditions of the APA, this Order shall govern and control. 40. Nothing in this Order shall alter or amend the APA and the obligations of the Debtors and the Successful Bidder thereunder. 41. This Order and the APA shall be binding upon and govern the acts of all persons and entities, including without limitation, the Debtors and the Successful Bidder, their respective successors and permitted assigns, including, without limitation, any Chapter 11 trustee hereinafter appointed for the Debtors estates or any trustee appointed in a Chapter 7 case if this case is converted from Chapter 11, all creditors of any Debtor (whether known or unknown), filing agents, filing officers, title agents, recording agencies, secretaries of state, and all other persons and entities who may be required by operation of law, the duties of their office or contract, to accept, file, register, or otherwise record or release any documents or instruments or who may be required to report or insure any title in or to the Purchased Assets. 42. The provisions of this Order are non-severable and mutually dependent. 43. Nothing in any order of this Bankruptcy Court or contained in any plan of reorganization or liquidation confirmed in the chapter 11 cases, or in any subsequent or 31

94 Exhibits A - J Page 68 of 172 converted cases of the Debtors under chapter 7 or chapter 11 of the Bankruptcy Code, shall conflict with or derogate from the provisions of the APA or the terms of this Order. 44. Notwithstanding Bankruptcy Rules 6004, 6006 and 7062, this Order shall be effective and enforceable immediately upon entry and its provisions shall be self-executing, and the Motion shall be deemed to provide sufficient notice of the Debtors request for relief from stay. In the absence of any person or entity obtaining a stay pending appeal, the Debtors and the Successful Bidder are free to close under the APA at any time, subject to the terms of the APA. In the absence of any person or entity obtaining a stay pending appeal, if the Debtors and the Successful Bidder close under the APA, the Successful Bidder shall be deemed to be acting in good faith and shall be entitled to the protections of section 363(m) of the Bankruptcy Code as to all aspects of the transactions under and pursuant to the APA if this Order or any authorization contained herein is reversed or modified on appeal. 45. This Bankruptcy Court shall retain exclusive jurisdiction to enforce the terms and provisions of this Order, the Strategic Transaction Bid Procedures Order, and the APA in all respects and to decide any disputes concerning this Order and the APA, or the rights and duties of the parties hereunder or thereunder or any issues relating to the APA and this Order including, but not limited to, the interpretation of the terms, conditions and provisions hereof and thereof, the status, nature and extent of the Purchased Assets and any Assumed and Assigned Contracts, and all issues and disputes arising in connection with the relief authorized herein, inclusive of those concerning the transfer of the assets free and clear of all Liens, Claims, Encumbrances and Interests. 32

95 Exhibits A - J Page 69 of 172 Dated: Richmond, Virginia Sep , 2015 /s/ Kevin R. Huennekens UNITED STATES BANKRUPTCY JUDGE WE ASK FOR THIS: Entered on Docket: Sep /s/ Jason W. Harbour Tyler P. Brown (VSB No ) Jason W. Harbour (VSB No ) Henry P. (Toby) Long, III (VSB No ) Justin F. Paget (VSB No ) HUNTON & WILLIAMS LLP Riverfront Plaza, East Tower 951 East Byrd Street Richmond, VA Tel: (804) Fax: (804) Counsel to the Debtors and Debtors in Possession CERTIFICATION OF ENDORSEMENT UNDER LOCAL BANKRUPTCY RULE (C) I hereby certify that the foregoing proposed order has been endorsed by or served upon all necessary parties. /s/ Jason W. Harbour EMF_US v6 33

96 Exhibits A - J Page 70 of 172 EXHIBIT C Excluded Receivables

97 Exhibits A - J Page 71 of 172 Schedule 2.2(m) Other Excluded Assets 1. All Medicare provider numbers. 2. All collateral securing liens of Bank of the West or PNC. 3. , servers, back-up tapes and other back-up storage media, and company computers, laptops and handheld devices used by key executives. 4. All security deposits concerning leases, whether equipment leases or Facility Leases, including without limitation all security deposits held in connection with the lease with Biotech 8, LLC. 5. Non-operating Accounts Receivable, including without limitation the Accounts Receivable from Oncimmune and G3. 6. All Accounts Receivable and claims related to Cigna, Aetna, United Health, Humana, or Anthem/Blue Cross Affiliates, which arise from services performed one hundred eighty (180) days before the Closing. 7. All claims related to Boston Heart. 8. Any attorney-client privilege and attorney work-product protection of Sellers or associated with the Business as a result of legal counsel representing Sellers or the Business, including, without limitation, in connection with the transactions contemplated by this Agreement, and all documents maintained by legal counsel as a result of representation of Sellers or the Business EMF_US v4

98 Exhibits A - J Page 72 of 172 EXHIBIT D Collection Agreements

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127 Exhibits A - J Page 101 of 172 EXHIBIT E Injunction Orders

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140 Exhibits A - J Page 114 of 172 Feb /s/ Kevin R Huennekens Entered on Docket: Feb

141 Case KRH KRH Doc Doc Filed Filed 02/12/16 08/03/16 Entered 02/12/16 08/03/16 11:56:14 14:42:31 Desc Desc Main Exhibits Document A - J Page of of 9172

142 Exhibits A - J Page 116 of 172 EXHIBIT F Women's Health Website Solicitation

143 6/2/2016 Case KRH Doc 1-1 Filed 08/03/16 Entered 08/03/16 14:42:31 Desc Exhibits A - J Page 117 of 172 (509) (866) 900-GYNE Home Our Philosophy Policy/Forms Press Contact Us Preventative Care Specialty Gynecologic Services Minimally Invasive Gynecological Surgery Bladder Problems & Pelvic Prolapse Hormone Balancing HD Labs and Collections Notices If you have received a Collec Ȁons No Ȁce from Monterey Collec Ȁons, you may HDLabsno ce@lemberglaw.com to obtain legal advice. Alterna Ȁvely you may call (203) ext 5501 to reach JodieBurton, Esq. Lemberg Law, LLC does not require you to provide a retainer in this situa Ȁon, or pay them legal fees there is no cost to this for you they will find out if you have a valid claim to dispute this Collec Ȁons No Ȁce you received under the Fair Debt Collec Ȁon Prac Ȁces Act, and possibly obtain compensa Ȁon from this collec Ȁons company if you do. Lifestyle Medicine & Weight Loss Medical Aesthetics Women s Health Connection, PS River View Corporate Center E Indiana Ave Spokane Valley, WA, p: (509) Women's Health Connection in Spokane, Washington provides women of all ages comprehensive gynecological services ranging from well woman exams to aesthetic gynecological surgery to minimally invasive surgery. Women from the surrounding communities of Spokane and neighboring Idaho can 䰀洅 nd relief from bladder problems, such as urinary leaking, pelvic disorders, pelvic prolapse, heavy bleeding, and infertility. Other services include minimally invasive surgery for hysterectomy, hysteroscopy, endometrial ablation and many more. f: (509) Women s Health Connection. All Rights Reserved. Home Sta 宓찎 Login Site Map labs and collections notices/ 1/1

144 Exhibits A - J Page 118 of 172 EXHIBIT G Patient Letters

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