INGN Inogen Inc

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): July 10, 2023

 

 

INOGEN, INC.

(Exact name of Registrant as Specified in Its Charter)

 

 

Delaware			001-36309	33-0989359
(State or Other Jurisdiction of Incorporation)			(Commission File Number)	(IRS Employer Identification No.)
301 Coromar Drive
Goleta, California				93117
(Address of Principal Executive Offices)				(Zip Code)

 

Registrant’s Telephone Number, Including Area Code: (805) 562-0500

 

(Former Name or Former Address, if Changed Since Last Report)

 

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

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

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common Stock, $0.001 par value		INGN		The Nasdaq Stock Market LLC

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

Emerging growth company ☐

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

 

 

---

Item 1.01. Entry into a Material Definitive Agreement

On July 10, 2023, Inogen, Inc., a Delaware corporation (“Inogen”), entered into a Share Purchase Agreement (the “Share Purchase Agreement”) with Mr. Adrien Mithalal, Mr. Jean-Sébastien Lantz, Mrs. Anne Reiser, CAAP Creation, Societe De Capital Risque Provencale Et Corse, Region Sud Investissement, Mérieux Participations 2, Relyens Innovation Santé and certain holders of exercisable securities identified therein (collectively, the “Sellers”). Pursuant to the Share Purchase Agreement, Inogen agreed to acquire all of the issued and outstanding capital stock of Physio-Assist SAS, a société par actions simplifiée organized under the laws of France. Physio-Assist SAS, directly and through its wholly owned subsidiary, PhysioAssist GmbH, is in the business of the design, production and marketing of medical devices for bronchial decongestion (airway clearance technique) for patients suffering from obstructive respiratory diseases (the “Business”).

Pursuant to the terms of the Share Purchase Agreement, Inogen agreed to pay the Sellers approximately $32,000,000 cash at closing subject to adjustment for the estimated net debt amount of Physio-Assist SAS (subject to potential adjustment after closing following confirmation of the actual net debt amount and target working capital amount) and up to either an additional $13,000,000 in cash or $11,000,000 in cash (minus related development costs) depending upon the achievement of one of two alternative milestones related to the Simeox Airway Clearance System’s receipt of FDA de novo authorization or 510(k) clearance within four years of the date of the closing of the transaction.

The closing of the transaction is subject to certain customary closing conditions, including (1) the receipt of Foreign Investment Authorization from the French Ministry of Economy, (2) subject to certain qualifiers, the accuracy of the representations and warranties made by Sellers, (3) the compliance in all material respects by Sellers of their obligations under the Share Purchase Agreement, (4) the conversion or exercise of all stock options, warrants and other instruments convertible into or exchangeable for capital stock of Physio-Assist SAS, (5) the absence of any Material Adverse Effect (as defined in the Agreement) on the Business (as defined in the Agreement), (6) the execution of new employment agreements with certain identified individuals, and (7) the execution of intellectual property rights assignment agreements with certain individuals.

The Share Purchase Agreement contains customary representations, warranties, and covenants related to the Business. Between the date of the Share Purchase Agreement and the closing of the transaction, subject to certain exceptions, Sellers have agreed to operate the Business in the ordinary course of business and to not take certain actions with respect to the Business without the prior written consent of Inogen. The Share Purchase Agreement also provides that the Sellers will indemnify Inogen for certain matters as specified in the Share Purchase Agreement. A portion of the cash consideration paid at closing will be placed into an escrow account to secure the indemnification obligations of Sellers. In certain circumstances, the milestone consideration may also be offset to satisfy indemnification obligations of the Sellers.

The Share Purchase Agreement includes customary termination provisions including the right of Inogen to terminate the Share Purchase Agreement if the closing of the transaction has not occurred by October 31, 2023, subject to extension in certain circumstances.

The foregoing description of the Share Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Share Purchase Agreement. The Share Purchase Agreement has been filed as Exhibit 2.1 herewith to provide investors with information regarding its terms. It is not intended to provide any other factual information about Inogen or Physio-Assist SAS. In particular, the assertions embodied in the representations and warranties contained in the Share Purchase Agreement are qualified by information in confidential disclosure schedules provided by the Sellers to Inogen in connection with the signing of the Share Purchase Agreement. These confidential disclosure schedules contain information that modifies, qualifies and creates exceptions to the representations and warranties set forth in the Share Purchase Agreement. Moreover, certain representations and warranties in the Share Purchase Agreement were used for the purpose of allocating risk between Inogen and Sellers rather than establishing matters as facts. Accordingly, you should not rely on the representations and warranties in the Share Purchase Agreement as characterizations of the actual state of facts about Inogen or Physio-Assist SAS. The Share Purchase Agreement is filed herewith as Exhibit 2.1 to this report and is incorporated by reference herein.

In order to facilitate the operations of Physio-Assist SAS between signing and closing of the transaction the Share Purchase Agreement provides for a short-term loan from Inogen to Physio-Assist SAS pursuant to convertible bonds in the amount of up to approximately $500,000 in two tranches, which would be subject to redemption up certain events, including among others, the closing of the transaction or upon maturity on December 31, 2023. The foregoing description

---

of the Terms and Conditions of Convertible Bonds does not purport to be complete and is qualified in its entirety by reference to the full text of the Terms and Conditions of Convertible Bonds. The Terms and Conditions of Convertible Bonds is filed herewith as Exhibit 10.1 to this report and is incorporated by reference herein.

Item 2.02 Results of Operations and Financial Condition

On July 13, 2023, Inogen issued a press release announcing the execution of the Share Purchase Agreement and certain select preliminary management prepared unaudited financial results for the three months ended June 30, 2023 and an update regarding its previously provided guidance for the full year ending December 31, 2023. A copy of the press release is furnished herewith as Exhibit 99.1 to this Current Report on Form 8-K.

The information furnished in this Current Report under Item 2.02, including Exhibit 99.1, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or incorporated by reference in any filing under the Securities Act of 1933, as amended (the "Securities Act"), or the Exchange Act, regardless of any general incorporation language in such filing, unless expressly incorporated by specific reference in such filing.

Item 7.01. Regulation FD Disclosure

On July 13, 2023, Inogen issued a press release announcing the execution of the Share Purchase Agreement and certain select preliminary management prepared unaudited financial results for the three months ended June 30, 2023 and an update regarding its previously provided guidance for the full year ending December 31, 2023. A copy of the press release is furnished herewith as Exhibit 99.1.

The information set forth under this Current Report under Item 7.01, including Exhibit 99.1, shall not be deemed “filed” for purposes of Section 18 of the Exchange Act, or incorporated by reference in any filing under the Securities Act or the Exchange Act, regardless of any general incorporation language in such filing, unless expressly incorporated by specific reference in such filing.

Notice Regarding Forward-Looking Statements

This Current Report on Form 8-K and certain of the exhibits incorporated by reference herein contain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, including, among others, the timing and completion of all other agreements and obligations included in the Share Purchase Agreement and the timing of the consummation of the transaction under the Share Purchase Agreement. Any statements contained in this communication that are not statements of historical fact may be deemed to be forward-looking statements. Words such as “believes,” “anticipates,” “plans,” “expects,” “will,” “intends,” “potential,” “possible,” and similar expressions are intended to identify forward-looking statements. Forward-looking statements are subject to numerous risks and uncertainties that could cause actual results to differ materially from currently anticipated results, including but not limited to, risks relating to closing and completion of the acquisition of Physio-Assist SAS; Inogen’s limited experience in acquiring and integrating new businesses; risks relating to the integration of Physio-Assist SAS’s business and operations within those of Inogen; the possibility that Inogen will not realize anticipated revenue or that expenses and costs will exceed Inogen’s expectations; the possible loss of key employees, customers, or suppliers in connection with the announcement of the acquisition; the challenges of achieving synergies in connection with the acquisition; and intellectual property risks if Inogen is unable to secure and maintain patent or other intellectual property protection for the intellectual property used in its products. In addition, Inogen’s business is subject to numerous additional risks and uncertainties, including, among others, risks arising from the possibility that Inogen will not realize anticipated revenue or expenses will not decrease; risks related cost inflation for components; the risks Inogen’s innovation pipeline will not produce meaningful results; the impact of changes in reimbursement rates and reimbursement and regulatory policies; and the possible loss of key employees, customers, or suppliers; the risk that expenses and costs will exceed Inogen’s expectations. Information on these and additional risks, uncertainties, and other information affecting Inogen’s business operating results are contained in its Annual Report on Form 10-K for the year ended December 31, 2022 and Quarterly Report on Form 10-Q for the period ended March 31, 2023, and in its other filings with the Securities and Exchange Commission. Additional information will also be set forth in Inogen’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2023, to be filed with the Securities and Exchange Commission. These forward-looking statements speak only as of the date hereof. Inogen disclaims any obligation to update these forward-looking statements except as may be required by law.

 

---

Section 9 – Financial Statements and Exhibits

Item 9.01. Financial Statements and Exhibits

(d) Exhibits.

Exhibit		Description
2.1		Share Purchase Agreement dated July 10, 2023, by and among Inogen, Inc. and Mr. Adrien Mithalal, Mr. Jean-Sébastien Lantz, Mrs. Anne Reiser, CAAP Creation, Societe De Capital Risque Provencale Et Corse, Region Sud Investissement, Mérieux Participations 2, Relvens Innovation Santé and certain individual sellers identified therein
10.1		Terms and Conditions of Convertible Bonds Issued by Physio-Assist dated July 10, 2023
99.1		Press Release dated July 13, 2023
104		The cover page of this Current Report on Form 8-K, formatted in Inline XBRL

 

---

SIGNATURES

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

			INOGEN, INC.
Date:	July 13, 2023	By:	/s/ Kristin Caltrider
			Kristin Caltrider Executive Vice President Chief Financial Officer Treasurer (Principal Accounting and Financial Officer)

 

---

Exhibit 2.1

 

10 JULY 2023

 

Between

 

Mr. Adrien MITHALAL

Mr. Jean-Sébastien LANTZ

Mrs. Anne REISER

CAAP CREATION

SOCIETE DE CAPITAL RISQUE PROVENCALE ET CORSE

REGION SUD INVESTISSEMENT

Mérieux Participations 2

Relyens Innovation Santé
the holders of Exercisable Securities listed in Schedule A

As the Sellers

 

And

 

Inogen, Inc.

 

As the Purchaser

 

In the presence of

 

Physio-Assist

 

As the Company

 

 

 

 

SHARE PURCHASE AGREEMENT

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

---

 

TABLE OF CONTENTS

1.	DEFINITIONS AND INTERPRETATION	5
1.1.	Definitions	5
1.2.	Interpretation	12
2.	SALE OF SECURITIES	13
3.	UPFRONT CONSIDERATION	13
3.1.	Determination of the consideration	13
3.2.	Payment of the consideration	14
4.	EARN-OUT PAYMENTS SUBJECT TO ACHIEVEMENT OF MILESTONES	15
5.	CONDITIONS	17
6.	PRE-COMPLETION OBLIGATIONS	20
6.1.	Conduct of business up to Completion	20
6.2.	Seller’s receivables and debts	24
6.3.	Repayment of Existing Facilities	24
6.4.	Relations with the Sellers	24
6.5.	Money laundering and KYC	24
6.6.	Bridge Financing	24
6.7.	Exercise or conversion of the Exercisable Securities	25
7.	COMPLETION	26
7.1.	Pre-Completion Statement	26
7.2.	Completion Date	26
7.3.	Actions and deliveries	26
8.	POST-COMPLETION OBLIGATIONS	28
8.1.	Tax filings	28
8.2.	Achievement of Milestones	28
9.	REPRESENTATIONS AND WARRANTIES	29
9.1.	General	29
9.2.	Capacity and authority	30
9.3.	Securities in the Group Companies	30
9.4.	Constitutional and Corporate documents	32
9.5.	Accounts	32
9.6.	Changes since the Balance Sheet Date	33
9.7.	Compliance with laws, regulatory authorizations and licenses, disputes	34

1

 

---

 

9.8.	Contracts	35
9.9.	Finance and guarantees	36
9.10.	Insolvency	37
9.11.	Insurance	38
9.12.	Environment	39
9.13.	Transactions with the Sellers	39
9.14.	Effect of the Transaction	39
9.15.	Assets	40
9.16.	Commercial Relations	40
9.17.	Intellectual Property	41
9.18.	Information Technology	42
9.19.	Data Protection	43
9.20.	Employees and Managers	44
9.21.	Real Estate	46
9.22.	Tax	47
10.	REPRESENTATIONS AND WARRANTIES OF THE PURCHASER	49
11.	REFUND BY THE SELLERS	49
11.1.	Indemnification obligations of the Sellers	49
11.2.	Allocation of liability among the Sellers	50
11.3.	Financial limits on Claims	50
11.4.	Time limits on Claims	51
11.5.	Contingent liabilities	51
11.6.	Exclusions	51
11.7.	No duplication of recovery	52
11.8.	Conduct of Claim	52
11.9.	Exemption or reduction	53
11.10.	Payment	54
12.	RESTRICTIONS ON THE SELLERS	55
13.	SELLERS REPRESENTATIVE	57
14.	CONFIDENTIALITY	57
15.	ANNOUNCEMENTS	59
16.	NOTICE	59
17.	GENERAL PROVISIONS	60
18.	GOVERNING LAW AND DISPUTE RESOLUTION	62

2

 

---

 

19.	ELECTRONIC SIGNATURE	62

 

 

3

 

---

 

SALE, PURCHASE AND INVESTMENT AGREEMENT

BETWEEN

 

(the above parties 4 to 8 being hereinafter referred to as the “Selling Funds” and each a “Selling Fund”)

 

(the parties referred to in the above 1 to 9 each acting severally and not jointly (conjointement mais non solidairement), being hereinafter referred to individually as a “Seller” and collectively as the “Sellers”)

 

AND

 

(hereinafter referred to as the “Purchaser”).

4

 

---

 

IN THE PRESENCE OF

 

WHEREAS

 

 

5

 

---

 

IT IS AGREED AS FOLLOWS:

In the Agreement, unless the context otherwise requires:

 

“Accounts”	means: ­- the balance sheet of each Group Companies made up as at December 31, 2022; ­- the profit and loss account of each Group Companies in respect of the financial year ended on December 31, 2022; and ­- balance sheet & profit and loss accounts for the Group Companies as at May 31st 2023; as set out in Schedule 9.5.1 (Accounts) and includes all notes thereto and the related management reports.
“Affiliate”	means, in relation to a person, any other person that, directly or indirectly, through one or more intermediaries, Controls or is Controlled by or is under common Control with such person, in each case from time to time, it being specified that the portfolio companies of the Selling Funds shall not be considered Affiliates for the purpose of this Agreement.
“Agreement”	means this share purchase agreement and each of its Schedules, as such agreement may be amended from time to time.
“Applicable Regulations”	means all Laws and guidelines issued by an Authority from time to time in force that apply to the products, the manufacture, sale, supply, distribution and marketing and advertising of the products, and the business and activities carried on by the Group Companies, and any request by any Authority relating to any of the foregoing.
“Authority”	means any competent governmental, administrative, supervisory, regulatory, judicial, disciplinary, enforcement or tax raising body, authority, agency, commission, board, organization, court or tribunal of any jurisdiction, whether supranational, national, regional or local and any subdivision, department or branch of any of the foregoing.
“Balance Sheet Date”	means May 31, 2023.
“Bridge Financing”	has the meaning given in Clause 6.6.
“Business”	has the meaning given in paragraph C of the Preamble hereto.
“Business Day”	means a day (other than a Saturday or Sunday) on which banks and financial markets are open in Paris.
“Change of Control”	occurs where a person who Controls any body corporate ceases to do so or if another person acquires Control of such body corporate.
“Claim”	means any claim by the Purchaser for the payment of a Refund by the Sellers in accordance with Clause 11.

6

 

---

 

“Clinical Trial”	means a human clinical study involving the Simeox Airway Clearance System that is designed to investigate the device’s safety and/or efficacy for its intended use, establish substantial equivalence to a predicate device, and/or to obtain marketing authorization.
“Claim Notice”	has the meaning given in Clause 11.8.
“Consideration”	means the aggregate consideration to be paid by the Purchaser for the Securities.
“Control”	means, in relation to any entity, the control as defined by article L.233-3 of the French Commercial Code.
“Company”	has the meaning given in the description of the Parties to the Agreement.
“Completion”	means completion of the Transaction in accordance with Clause 7.
“Completion Date”	means the date on which Completion takes place.
“Conditions”	means the conditions precedent set out in Clause 5.
“Confidential Information”	has the meaning given in Clause 13.
“Data Protection Law”	means any data protection and privacy legislation anywhere in the world applicable to the Group Companies, including but not limited to (i) the French Act No. 78-17 dated 6 January 1978 relating to computer systems, files and civil liberties (“Loi Informatique et Libertés”) as amended by the French Act No. 2018-493 dated 20 June 2018, (ii) the General Data Protection Regulation (EU) 2016/679 dated 27 April 2016 (“GDPR”) relating to the protection of natural persons with regards to the processing of personal data and on the free movement of such data, (iv) the United States Gramm-Leach-Bliley Act, the United States Federal Trade Commission Act, the United States CAN-SPAM Act, the United States Telephone Consumer Protection Action (TCPA), the California Consumer Privacy Act, as well as all mandatory guidelines and all regulations issued by any relevant competent Authority relating to data protection, and (iv) all relevant statutory codes of practice and guidance issued by any competent Authority.
“Data Room”	means the virtual data room hosted by Datasite containing certain documents and information relating to the Group to which the Purchaser and its advisers have had a permanent access until the date hereof.
“Development Costs”	shall mean all costs incurred by the Purchaser’s Group, the Company or any of its Affiliates in order to achieve Milestone 2 and notably the costs incurred by the Purchaser’s Group, the Company to carry out the required clinical trials.
“Disclosed Information”	means the information disclosed in this Agreement (including its Schedules).
“Draft Completion Statement”	has the meaning given in paragraph 1 (a) of Schedule 3.2 (Completion Statement).
“Earn-Outs”	has the meaning given in Clause 4.1.

7

 

---

 

“Earn-Out Period”	has the meaning given in Clause 4.1.
“Encumbrance”	means any security interest, mortgage, charge, pledge, lien, assignment or fiducie by way of security, hypothecation, title retention, easement, burden, or other restriction or limitation of any kind to the rights of disposal, ownership or assignment of an asset (including any right to acquire, call option, tag along, drag along, preference or pre-emption right) whether created by Law, by contract or otherwise, other than any restriction or limitation imposed by this Agreement.
“Environmental Law”	means all Law relating directly or indirectly to the protection, or prevention of the pollution of, the environment or the regulation of emissions, discharges, or releases of hazardous substances into the environment, or the regulation of the use, treatment, storage, burial, disposal, transport or handling of hazardous substances.
“Escrow Agent”	has the meaning given in Clause 3.2.1(b).
“Escrow Agreement”	has the meaning given in Clause 3.2.1(b).
“Escrow Amount”	has the meaning given in Clause 3.2.1(b).
“Estimated Net Debt Amount”	means the reasonable estimate of the Net Debt Amount calculated in accordance with Schedule 3.1 (Accounting Definitions and Principles) and delivered by the Sellers’ Representative to the Purchaser in the Pre-Completion Statement.
“Existing Facilities”	has the meaning given in Clause 9.9.1.
“Exercisable Securities”	has the meaning given in Clause 6.7.1.
“Fairly Disclosed”	means disclosed with sufficient details and in a manner so that a buyer working with professional advisers would be reasonably likely to identify the nature and scope of the risk or matter disclosed and make an accurate assessment of the extent and financial consequences of the matter disclosed.
“FDA”	means the United States Food and Drug Administration.
“Final Completion Statement”	has the meaning given in paragraph 1 (d) of Schedule 3.2 (Completion Statement).
“Final Consideration”	has the meaning given in Clause 3.1.
“Foreign Investment Authorization”	means the confirmation from the French Ministry of Economy that the Transaction contemplated hereby falls outside the scope of prior approval pursuant to L.151-1 and R.151-1 et seq. of the French Monetary and Financial Code, or (ii) the authorization of the Transaction contemplated hereby (without any further conditions) by the French Ministry of Economy pursuant to articles L.151-1 and R.151-1 et seq. of the French Monetary and Financial Code.
“Founder”	has the meaning given in the description of the Parties to the Agreement.
“Fundamental Warranties”	means the representations and warranties set forth in Clause 9.2 (Capacity and Authority), Clause 9.3 (Securities in the Group Companies),Clause 9.4 (Constitutional and Corporate Documents).

8

 

---

 

“Group”	means, together the Company and the Subsidiary.
“Group Company”	means any member of the Group.
“Initial Consideration”	has the meaning given in Clause 3.1.
“Intellectual Property Rights”	means Registrable IP, Software and any other intellectual property including but not limited to copyrights and design rights, moral rights to the extent permitted by applicable Laws, trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals), databases, including the benefit of all applications, derivative products, and rights relating to the foregoing.
“IT Systems”	means all computer hardware, including peripherals and ancillary equipment and network and telecommunications equipment, and all computer software, including associated proprietary materials, user manuals and other related documentation, used by any of the Group Companies.
“Key Employees”	has the meaning given in Clause 9.20.1.
“Laws”	means, with respect to any person, any national, transnational, foreign or local law, all applicable legislation, constitution, statutes, transposed directives, regulations, treaty, convention, applicable collective bargaining agreement, decrees, ordinances, rules, order, injunction, judgement, ruling, instruments, codes and other legislative measures or decisions having the force of law or other similar requirement enacted, adopted, promulgated or applied by any Authority that is binding upon or applicable to such person, as interpreted under case-law or the guidance and instructions of any Authority, as amended unless expressly specified otherwise.
“Long Stop Date”	means 31 October 2023 at midnight or such later date as may be agreed in writing by the Sellers and the Purchaser being specified that if the FDI Condition is not satisfied prior to 31 October 2023, but the Purchaser has diligently submitted a filing to the French Ministry, then the Long Stop Date shall be extended for an additional thirty (30) calendar days.
“Losses”	means all liabilities, damages and penalties, resulting in a direct cash-out (excluding in particular, for the avoidance of doubt, any decrease of the amount of losses carried forward for tax purposes), as well as any reasonable expenses, but excluding any consequential losses, loss of profit (manque à gagner), lost opportunities (perte de chance) and loss of reputation (préjudice d’image).
“Managers”	means the legal representatives (mandataires sociaux) of the Group Companies, which are listed in Schedule 9.20.2.
“Material Adverse Effect”	means any unexpected change, situation, circumstance or event which cannot be reasonably foreseen on the date of this Agreement and which has a material and adverse effect on the Business or the financial

9

 

---

 

	situation of the Group resulting in an amount exceeding EUR 5,000,000, but excluding any change or effect arising from or relating to (a) general business or economic conditions, including such conditions related to the business of the Group Companies, (b) national or international political or social conditions, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack, (c) general financial, banking, or securities markets, and (d) the taking of any action required by this Agreement and the other agreements contemplated hereby.
“Material Contract”	means any contracts entered into by the Company or the Subsidiary which have a value exceeding EUR 100,000 per year.
“Milestone 1”	shall mean FDA de novo authorization or 510(k) clearance of the Simeox Airway Clearance System without a requirement for Clinical Trial(s) beyond those that are completed or ongoing (at least 1 (one) enrolled participant) at the time of Completion being obtained by the Company or any of its Affiliates.
“Milestone 2”	shall mean FDA de novo authorization or 510(k) clearance of the Simeox Airway Clearance System with a requirement for Clinical Trial(s) beyond those that are completed or ongoing (at least 1 (one) enrolled participant) at the time of Completion being obtained by the Company or any of its Affiliates.
“Milestone Payment”	has the meaning given in Clause 4.1
“Net Debt Amount”	has the meaning given in paragraph 1.1 of Schedule 3.1 (Accounting Definitions and Principles).
“Non-Representing Sellers”	shall mean the Sellers other than the Representing Seller.
“Ordinary Course of Business”	means an action which is (i) consistent with each Group Company’s practices prior to the date hereof and/or prior to the Completion Date and (ii) taken in the ordinary course of each Group Company’s normal day-to-day operations.
“Person”	means any physical or legal person
“Personal Data”	means any information relating to an identified or identifiable natural person, protected by and within the scope of Data Protection Laws.
“Pivot Bank Account”	means the Pivot bank account the details of which shall be notified to the Purchaser in the Pre-Completion Statement.
“Pre-Completion Statement”	has the meaning given in Clause 7.1.
“Proceeding”	means any action, arbitration, audit, examination, hearing, investigation, litigation, suit, or other administrative proceedings or court proceedings.
“Properties”	has the meaning given in Clause 9.21.1.
“Prohibited Area”	has the meaning given in Clause 12.5.
“Purchaser”	has the meaning given in the description of the Parties to the Agreement.
“Purchaser’s Group”	means the Purchaser and each of its Affiliates.

10

 

---

 

“Refund”	has the meaning given in Clause 11.
“Registrable IP”	means all inventions (whether patentable or not and whether or not reduced to practice), patents, designs, trademarks, logos, trade names, corporate names, domain names, social media accounts and user names, including the benefit of all applications derivative products, and rights relating to the foregoing.
“Reporting Accountants”	means an independent firm of internationally recognized chartered accountants not in contract or in business relationship with either the Purchaser or the Sellers, to be agreed upon by the Sellers’ Representative and the Purchaser within five (10) Business Days of a notice by one to the other requiring such agreement or, failing such agreement, to be nominated on the application of either of them by the President of the Commercial Court of Aix-en-Provence ruling under the form of summary proceedings without recourse (statuant en la forme des référés et sans recours possible).
“Representatives”	means, in relation to a Party, its Affiliates and its directors, officers, employees, agents, auditors, consultants and advisers as well as those of its Affiliates.
“Representing Seller”	shall mean the Founder.
“Respective Portion”	means the portion of Consideration to be received by each respective Seller under Clause 3.2 to be included in the Pre-Completion Statement.
“Restricted Person”	shall have the meaning given in Clause 11.
“Securities”	means all the securities issued by the Group Companies as set out in Schedule 1(Allocation of the Securities) as updated in the Pre-Completion Statement in accordance with Clause 7.1.
“Sellers”	has the meaning given in the description of the Parties to the Agreement.
“Representing Seller’s Knowledge”	means the knowledge, information and belief of the Representing Seller after it has made due and careful enquiries.
“Sellers Representative”	has the meaning given in Clause 13.
“Seller’s Group”	means the Sellers and any of their Affiliates, from time to time (but excluding, for the avoidance of doubt, the Group Companies).
“Selling Funds”	has the meaning given in the description of the Parties to the Agreement.
“Software”	means all (a) computer programs and other software, whether in source code, object code or other form, including libraries, application programming interfaces, software development kits; (b) computerized databased and other collections of data or information; (c) screens, users’ interfaces, menus, buttons and icons related to any of the foregoing; (d) descriptions, flow-charts, architectures, development tools; and I all documentation associated to such elements.
“Source Jurisdiction”	has the meaning given in Clause 9.22.23.

11

 

---

 

“Strike Portion”	has the meaning given in Clause 6.7.2.
“Subsidiary”	has the meaning given in paragraph B of the Preamble hereto.
“Target Working Capital Amount”	means the reasonable estimate of the Working Capital Amount determined on the date hereof in accordance with paragraph 1.2 of Schedule 3.1 (Accounting Definitions and Principles) and amounting to EUR 417,000.
“Tax”	means, in any jurisdiction, (i) all taxes, direct or indirect, customs, duties, levies, fees, assessments, contributions, deficiencies, assessment tariffs and charges of any kind (including the obligation to escheat or otherwise turn over abandoned, presumed abandoned or unclaimed property or assets, whether or not currently escheatable or reportable), whether payable directly or by withholding, including without limitation, income, alternative minimum, add-on minimum, accumulated earnings, personal holding company, net worth, receipts, gross receipts, capital, share surplus, property, sales, use, customs, ad valorem, value added, gains, transfer, franchise, profits, windfall or excess profits, capital stock, license, withholding, excise, goods and services, severance, stamp, conveyance, mortgage, registration, documentary, recording, premium, environmental, natural service, intangibles, rent, occupancy, disability, worker’s compensation, employment and social security taxes (including any payroll-related and social security charges and health, unemployment, housing, family allowances, pension or retirement contributions), together with any interest, fines, surcharges, penalties, or additions thereto, whether civil or criminal and whether or not disputed, imposed, assessed or collected by or under the authority of any French or foreign Tax Authority, (ii) any penalty or fine applicable further to the non-filing or filing of any Tax Return, and (iii) any liability for the payment of any amounts of the type described in paragraph (i) above as a result of being a member of a consolidated, combined, unitary or aggregate group for any taxable period and any liability for the payment of any amounts of the type described above or as a result of being a transferee or successor to any person or as a result of any obligation to indemnify any other person or payable pursuant to any tax sharing agreement or any other agreement relating to the sharing or payment of any such amount.
“Tax Authority”	means any Authority (whether within or outside France) competent to impose a liability for or to collect Tax.
“Tax Relief”	includes any loss, relief, allowance, credit, deduction, exemption or set‑off in respect of any Tax or relevant to the computation of any income, profits gains or basis for the purposes of any Tax (including, for the avoidance of doubt, Tax losses carry forward), or any repayment of or saving of Tax and any reference to the use or set off of a relief shall be construed accordingly.
“Tax Return”	means and includes any return, estimate, notice, report, claim, election, information return, loss surrender agreement, information statement, forms, declaration or other document, any consolidated, affiliated, combined or unitary versions of the same, any schedule or attachment thereto and any amendment thereof prescribed by Laws, filed or

12

 

---

 

	required to be filed with any Authority in connection with any determination, assessment, reporting, payment, collection or administration of any Tax or any information or documentary obligation imposed by any Tax law applicable to the Group Companies.
“Third-Party”	means any person that is not a Party nor a Group Company.
“Third-Party Claim”	has the meaning given in Clause 11.8.1.
“Transaction”	means the sale and purchase of the Securities by the Sellers to the Purchaser and any other transactions contemplated by the Agreement and/or the other Transaction Documents.
“Transaction Documents”	means the Agreement, and any other documents in connection with the Transaction as each of such agreements may be amended from time to time.
“Warranties”	means the representations and warranties set out in Clause 9.
“Working Capital Amount”	means the working capital determined in accordance with paragraph 1.2 of Schedule 3.1(Accounting Definitions and Principles).

 

13

 

---

 

 

14

 

---

 

It is specifically agreed by the Parties that any decrease of the Initial Consideration based on this Clause 3.1.2 shall be exclusively treated as a decrease (by way of debt set-off (compensation de créance)) of the Earn-Outs. In particular, no additional cash payment shall be required from the Sellers to the Purchaser in case of an adjustment under this Clause 3.1.2 and in case no Earn-Outs would be due at the end of the Earn-Out Period, the Purchaser shall not have any remedy or recourse against the Sellers in this respect.

15

 

---

 

 

Pursuant to the terms of this Clause 4, the Sellers shall be entitled to receive additional consideration (the “Earn-Outs”) of a maximal amount of up to thirteen million US dollars (USD 13,000,000) subject to the achievement of any of the following milestones at the latest on the day which shall be the fourth (4th) anniversary of the Completion Date (“Earn-Out Period”):

OR

16

 

---

 

17

 

---

 

Completion shall be subject to each of the following conditions being satisfied by the Long Stop Date (unless waived in accordance with Clause 5.3):

 

 

 

 

 

 

18

 

---

 

19

 

---

 

 

20

 

---

 

 

 

 

 

 

 

 

 

 

21

 

---

 

 

 

 

 

 

 

 

 

 

22

 

---

 

 

 

 

 

 

 

 

 

 

 

23

 

---

 

 

 

 

 

 

 

 

 

24

 

---

 

No later than five (5) Business Days prior to Completion, the Sellers’ Representative shall deliver a written notice to the Purchaser, setting forth the aggregate of all amounts owed as at Completion by any Group Company to any member of the Sellers’ Group, or by any member of the Sellers’ Group to any Group Company, including all accrued interest, if any; together with information on the origin of such amounts and with details of the bank accounts of the relevant members of the Sellers’ Group or of the relevant Group Companies, if any repayments are to be made.

 

The Company shall do all things necessary to ensure that the Group Companies will repay within fifteen (15) Business Days following Completion at the latest, all outstanding amounts due under the Existing Facilities, together with any applicable prepayment fees and obtain the release from the relevant lenders of any Encumbrances granted for their benefit upon repayment of the corresponding facilities.

 

To that extent, no later than five (5) Business Days prior to Completion, the Company shall deliver a written notice to the Purchaser, setting forth the aggregate of all amounts owed as at the targeted date for effective repayment of such Existing Facilities by any Group Company under the Existing Facilities, including all principal and accrued interest and any fee, prepayment fee, costs or penalties thereunder; together with information on the origin of such amounts and with details of the corresponding bank accounts of the financial institutions on which repayments shall be made.

 

The Sellers shall ensure that, upon Completion, all contracts identified in Schedule 6.4 (Contracts with the Sellers’ Group to be terminated on Completion) entered into between certain Group Companies and certain Sellers will be terminated with effect as from the Completion Date, at no cost to any of the Purchaser or any Group Company.

 

It is further specified that the interests accrued on the 2017 convertible bonds formerly issued by the Company and due to some of the Sellers have been registered as shareholders’ current account advance (avance en compte courant d’associé). Upon Completion, the amount of such shareholder’s current account advance will be reimbursed by the Company.

 

The Sellers undertake to provide, and to procure that any relevant member of the Sellers’ Group or any relevant Group Company provides, all information and documents necessary as may be required by any member of the Purchaser’ Group in connection with the relevant provisions of Laws relating to anti-money laundering/KYC.

 

25

 

---

 

26

 

---

 

Within three (3) Business Days after the satisfaction or waiver of the Conditions referred to Clause 5.1(i), the Sellers’ Representative and the Founder shall deliver to the Purchaser a written statement (the “Pre-Completion Statement”) setting out:

Subject to Clause 5, the completion of the Transaction (the “Completion”) shall take place:

(the “Completion Date”); each Party undertakes to do its best endeavors in order to fulfill the Conditions to the extent within its power and control, as soon as reasonably practicable and at the Long Stop Date at the latest.

27

 

---

 

28

 

---

 

For the purpose of this Paragraph, “IR Code” shall mean the United States Internal Revenue Code, as amended from time to time.

The Sellers shall not be held, in any manner, liable for the consequences directly or indirectly triggered by a Section 338(g) Election, including on the assessment of any tax due with respect to the financial year during which the Completion occurs.

After Completion, and during the Earn Out Period, the Founder shall facilitate and provide reasonable assistance and support to the Purchaser, the Company, their Affiliates and their respective directors, officers, managers, employees, consultants, advisors and other agents or representatives in connection with the achievement of Milestone 1 and/or Milestone 2, upon reasonable request and at the sole cost and expenses of the Purchaser, the Company

29

 

---

 

and/or their respective Affiliates. Such assistance and support is intended to include such services as providing reasonable general advice and review of applications (and supporting materials) for the achievement of Milestone 1 and/or Milestone 2.

30

 

---

 

31

 

---

 

32

 

---

 

33

 

---

 

34

 

---

 

35

 

---

 

36

 

---

 

37

 

---

 

38

 

---

 

39

 

---

 

40

 

---

 

41

 

---

 

42

 

---

 

43

 

---

 

44

 

---

 

45

 

---

 

46

 

---

 

47

 

---

 

and no such reassessment, audit, investigation, claim or proceeding is threatened.

48

 

---

 

49

 

---

 

50

 

---

 

It is specifically agreed by the Parties that the sole remedy of the Purchaser in case of a Claim for a breach or inaccuracy of the Warranties (other than the Fundamental Warranties) shall be to set off (compensation de créance) the amount of the corresponding Loss to be indemnified by the Sellers against the amounts due by the Purchaser to the Sellers as part of the Escrow Amount or the Earn-Outs. No cash payment shall be required from the Sellers to the Purchaser under the Warranties (other than the Fundamental Warranties) and in case the amount of the Escrow Amount and/or the Earn-Outs shall not be sufficient to cover the Loss of the Purchaser or the relevant Group Company resulting from a breach of the

51

 

---

 

Warranties (other than the Fundamental Warranties), the Purchaser and the Group Companies shall not have any remedy or recourse against the Sellers in this respect.

in each case, the “Expiry Date”.

The Sellers shall not be liable in respect of any contingent liability in relation to any Claim unless and until such contingent liability becomes an actual liability and is due and payable.

52

 

---

 

The Purchaser shall not be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity more than once in respect of the same Loss, regardless of whether more than one Claim arises in respect of it. For the avoidance of doubt, the same facts, events or circumstances giving rise to a Loss will not be taken into account more than once under the terms of this Agreement, including in particular for indemnification purposes.

provided that failure by the Purchaser to comply with the above-mentioned notice periods, it shall not relieve the Sellers of their obligations hereunder, except to the extent such failure shall have adversely prejudiced the Sellers.

53

 

---

 

 

‑		the amount of any indemnification or recovery due to the Purchaser or any Group Company from any Third-Party in respect of the matter giving rise to the Loss, net of any costs incurred by the Purchaser in collecting such indemnification or recovery, it being specified that if such indemnification or recovery is paid to the Purchaser or the relevant Group Company within eighteen (18) months following the date on which the Purchaser or the relevant Group Company was indemnified (including by way of debt set-off (compensation de créance)) by the Sellers, the Purchaser or the relevant Group Company shall repay the indemnification amount to the Sellers up to the amount thus recovered net of effective Taxes and of other recovery fees (legal procedures, advisors, etc.); and/or

54

 

---

 

‑		the amount of any provision or reserve included in the Accounts on account of the specific matter in question; and/or
‑		any Tax Relief related to the alleged Loss which will result in an actual Tax reduction for the financial year during which the Loss occurred (as opposed to the mere creation of a Tax Loss); and/or
‑		the amounts, excluding late interests and penalties, owed by any Group Company in respect of Tax, including, in particular, additional VAT assessments, that result in a simple transfer of revenue or expense from one fiscal year to another and that do not generate any additional tax cost for such Group Company compared to that it would have borne in the absence of such increase (for the avoidance of doubt, such comparison shall be made globally and not financial year by financial year).

 

55

 

---

 

56

 

---

 

57

 

---

 

58

 

---

 

(collectively, "Confidential Information").

59

 

---

 

 

If to the Sellers Representative:	Mérieux Participations 2 Attn: Valérie Calenda Address: 3, rue Marcel Gabriel Rivière, 69002 Lyon Email: valerie.calenda@merieux-partners.com
with a copy to:	White & Case Attn: Maître Xavier Petet Address: 19, place Vendôme, 75001 Paris Email: Xavier.Petet@whitecase.com
If to the Purchaser:	Inogen, Inc. 301 Coromar Dr.

60

 

---

 

	Goleta, California 93117 Attn : Legal Department
with a copy to:	Taylor Wessing Attn: Maître Gilles Amsallem Address: 69 Avenue Franklin Delano Roosevelt 75008 Paris Email: g.amsallem@taylorwessing.com

or to such other Persons or at such other addresses as hereafter may be furnished by either Party by like notice to the other.

This Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the Parties to this Agreement and their successors and permitted assigns.

Except as expressly provided herein, this Agreement shall inure to the benefit of, and be binding upon, the Parties hereto and their respective successors and permitted assigns. The Parties shall not assign any of their rights or delegate any of their obligations under this Agreement without the prior written consent of the other Party.

Notwithstanding the above, each Seller being a natural person may, upon notice in writing to the Sellers Representative and the Purchaser, at the latest five (5) Business Days prior to Completion, assign the benefit of all or part of this Agreement to (and it may be enforced by) any personal holding, to the extent that the relevant Seller remains jointly and severally liable for the performance by such Affiliate of its obligations hereunder and provided that (i) the share capital of such personal holding shall remain entirely held by the concerned Seller or by its direct family members (spouse or husband and children) and (ii) the relevant Seller shall remain the sole legal representative of such personal holding.

Until the second (2d) anniversary of the Completion Date, the Purchaser shall not, and shall not permit any Group Company to, destroy or otherwise dispose of any of the books and records of any Group Company existing as of the Completion Date, except with the prior written consent of the Sellers Representative, which consent shall not be unreasonably withheld. The Purchaser shall, and shall cause each the Group Company to, make available to the Sellers and their representatives and agents all such books and records, and permit the Sellers and their representatives and agents to examine, make extracts from and, at its expense, copy such books and records at any time during normal business hours to the extent that the related information is reasonably required by the Sellers Representative in connection with any audit, control, investigation or similar proceeding brought by or involving

61

 

---

 

an Authority, it being understood that no access granted hereunder shall interfere with the business operations of the relevant Group Company.

Any payment to be made pursuant to this Agreement by the Purchaser to the Sellers, or any of them shall be made to the Pivot Bank Account (or the Company’s bank account with respect to the Strike Portion) and any payment to be made pursuant to this Agreement by the Sellers to the Purchaser shall be made to the Purchaser's bank account, in each case by way of electronic transfer in immediately available funds on or before the due date for payment. Receipt of such sum in such account with a value date on or before the due date for payment shall be a good discharge by the payer of its obligation to make such payment.

If the transactions contemplated by this Agreement are consumed, each of the Parties shall use its commercially reasonable endeavours to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under all applicable Laws to consummate and make effective the Transaction contemplated by this Agreement.

The Sellers and the Purchaser shall each bear its own expenses incurred in connection with the negotiation, preparation and signing of this Agreement and the consummation of the Transaction contemplated herein.

The registration fees for the Consideration will be paid by the Purchaser.

This Agreement represents the entire agreement and understanding of the Parties with reference to the transaction set forth herein and no warranties have been made in connection with this Agreement other than those expressly set forth herein. This Agreement supersedes all prior negotiations, discussions, correspondence, communications, understandings, and agreements between the Parties relating to the subject matter of this Agreement and all prior drafts of this Agreement.

This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the Parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.

No terms of this Agreement may be altered, modified, amended, supplemented or terminated except by an instrument in writing duly signed by the Parties. Any waiver of any term or condition of this Agreement must be in writing signed by the Party sought to be charged with such waiver referring specifically to the term or condition to be waived, and no such waiver

62

 

---

 

shall be deemed to constitute the waiver of any other breach of the same or of any other term or condition of this Agreement.

Notwithstanding anything to the contrary in this Agreement, each Party expressly acknowledges and agrees that the other Parties may seek specific performance in the event of a breach by a Party of its obligations.

This Agreement shall be signed electronically by each of the authorized representatives of the Parties mentioned in the recitals, on its execution date above. The Parties acknowledge and agree that electronic signatures via DocuSign, were used for the execution of this Agreement by such signatories. Each of the Parties acknowledges that it has received all the information required for the electronic signature of this Agreement and that it has signed this Agreement electronically in full knowledge of the technology used and its terms and conditions, and consequently waives any claim and/or legal action challenging the reliability of this electronic signature system and/or its intention to enter into this Agreement in this regard. The delivery of an electronic copy of this Agreement directly by DocuSign to each Party shall constitute sufficient and irrefutable proof of the commitments and obligations of each Party to this Agreement.

 

 

 

*

 

* *

 

 

 

 

[BOTTOM OF THE PAGE INTENTIONNALY LEFT BLANK]

 

63

 

---

 

Made in electronic copy

 

 

Mr. Adrien MITHALAL Signature:   /s/ Adrien Mithalal		Mr. Jean-Sébastien LANTZ Signature:   /s/ Jean-Sébastien Lantz
Mrs. Anne REISER Signature:   /s/ Anne Reiser		Anne REISER consulting FZE Represented by Mrs. Anne REISER Signature:   /s/ Anne Reiser
CAAP CREATION Represented by Mr. Armand Perrin Signature:   /s/ Anman Perrin		SOCIETE DE CAPITAL RISQUE PROVENCALE ET CORSE Represented by Mr. Sauveur Cascone Signature:   /s/ Sauveur Cascone
REGION SUD INVESTISSEMENT Represented by Mrs. Marguerite Pappalardo Signature:   /s/ Marguerite Pappalardo		Mérieux Participations 2 Represented by Mérieux Equity Partners, Itself represented by Mrs. Valérie Calenda Signature:   /s/ Valérie Calenda
RELYENS INNOVATION SANTÉ Represented by Mrs. Mounia Chaoui Signature:   /s/ Mounia Chaoui		Mr. Richard GUILLAUME Signature:   /s/ Richard Guillaume
Mr. Richard PINARD Signature:   /s/ Richard Pinard		Mrs. Florence DANET Signature:   /s/ Florence Danet

64

 

---

 

Mr. Ulrich FELL Signature:     /s/ Ulrich Fell		Mrs. Mathilde PROFFIT Signature:     /s/ Mathilde Proffit
Mr. Laurent MORIN Signature:   /s/ Laurent Morin		Mr. Jean Patrick SANNA Signature:   /s/ Jean Patrick Sanna
Mr. Manuel GERLACH Signature:     /s/ Manuel A. Gerlach		Mrs. Agnès NDOUR Signature:     /s/ Agnès Ndour
Mr. Laurent GENEVOIS Signature:     /s/ Laurent Genevois		Mr. Mohamed KHELLAF Signature:     /s/ Mohamed Khellaf
Mr. Damien MARINO Signature:     /s/ Damien Marino		Mrs. Margaux LE FEVRE Signature:     /s/ Margaux Le Fevre
Inogen, Inc. Represented by Nabil Shabshab Signature:     /s/ Nabil Shabshab		PHYSIO-ASSIST Represented by Mr. Adrien MITHALAL Signature:     /s/ Adrien Mithalal

 

 

65

 

---

 

List of the Schedules

Schedule A	Holders of Exercisable Securities
Schedule 1	Allocation of the Securities
Schedule 2	Description of the securities issued by the Group Companies and of their respective holders
Schedule 3.1	Accounting Definitions and Principles
Appendix A	Illustrative example of the calculation of the Net Debt Amount and the Working Capital Amount
Schedule 3.2	Completion Statement
Schedule 5.1(vi)	Persons entering into new employment agreements upon Completion
Schedule 5.1(vii)	Intellectual property rights assignment agreements
Schedule 6.1.1	Permitted actions
Schedule 6.4	Contracts with the Sellers’ Group to be terminated on Completion
Schedule 6.6	Draft terms and conditions of the convertible bonds for the Bridge Financing and/or the Additional Drawdown
Schedule 7.3.1(iii)	Representative of the Group Companies resigning upon Completion
Schedule 9.5.1	Accounts
Schedule 9.6.1	Changes since the Balance Sheet Date
Schedule 9.7.9	Litigations
Schedule 9.7.13	Product recall
Schedule 9.8.1	Material Contracts
Schedule 9.9.1	Existing Facilities
Schedule 9.9.4	Existing Encumbrances
Schedule 9.9.8	Particulars of the Group Companies’ bank accounts, authorized signatories and balance
Schedule 9.9.9	Grants or subsidies received by the Group Companies
Schedule 9.11.1	Insurance policies of the Group Companies
Schedule 9.14.1(vii)	Broker fees
Schedule 9.17.1	Registrable IP owned or used by the Group Companies

 

 

---

 

Schedule 9.17.4	Software owned or used by the Group Companies
Schedule 9.17.5	Agreements relating to the Intellectual Property Rights
Schedule 9.20.1	List of the Employees
Schedule 9.20.2	List of the Managers
Schedule 9.20.3	Managers or Key Employees having or willing to resign
Schedule 9.20.9	Particulars of all employment policies
Schedule 9.20.14	Gratuitous payments to Employees
Schedule 9.20.15	Benefits in Kind
Schedule 9.21	Properties leased by the Group Companies
Schedule 9.22.6	Tax audits
Schedule 9.22.7	Tax advantages
Schedule 9.22.11	Current agreements or transactions with any Tax Authority

 

The exhibits and schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K under the Securities Act of 1933, as amended. The registrant agrees to furnish supplementally a copy of all omitted exhibits and schedules to the Securities and Exchange Commission upon request.

 

 

---

 

Exhibit 10.1

TERMS AND CONDITIONS OF CONVERTIBLE BONDS
ISSUED BY PHYSIO-ASSIST

This document sets forth the terms and conditions (the “Terms and Conditions”) of the bonds convertible into B Preferred Shares (the “Convertible Bonds”), issued by PHYSIO-ASSIST, a French société par actions simplifiée having its registered office located at 31 Parc du Golf – CS 90519, 13593 Aix-en-Provence, registered with the trade and companies register under number 753 793 827 RCS Aix-en-Provence (the “Company”).

“Affiliate(s)”	means, in relation to a person, any other person that, directly or indirectly, through one or more intermediaries, Controls or is Controlled by or is under common Control with such person, in each case from time to time.
“Control”	means, in relation to any entity, the control as defined by article L.233-3 of the French Commercial Code.
“Convertible Bonds”	has the meaning assigned to it in the preamble hereto.
“Company”	has the meaning assigned to it in the preamble hereto.
“Conversion Date”	has the meaning ascribed to it in Paragraph 2.6(c).
“Conversion Notice”	has the meaning assigned to it in Paragraph 2.6(c).
“Free Transfer”	means any transfer to the benefit of an Affiliate of the Holder at the time such transfer occurs.
“Holder”	means any holder of Convertible Bond from time to time.
“Interest”	has the meaning assigned to it in Paragraph 2.3.
“Insolvency Event”	means the occurrence of any of the following event: • A decision by a management body of the Company is taken or judicial proceedings or other measure is initiated with a view of: - implementing any insolvency proceedings set forth in Book VI of the French Commercial Code (French “procédures collectives”) with respect to the Company, including the suspension of the payments, the initiation of safeguard proceedings (“procédure de sauvegarde”), accelerated safeguard proceedings (“procédure de sauvegarde accélérée”), accelerated financial safeguard proceedings (“procédure de sauvegarde financière accélérée”), judicial reorganisation (“redressement judiciaire”), judicial liquidation (“liquidation judiciaire”) or restructuring (in particular, within the scope of an ad hoc mandate (“mandat ad hoc”) or conciliation (“conciliation”) of the Company; or - the entering into by the Company an adjustment, assignment or rescheduling agreement with one or several creditors due to present or anticipated financial problems.

 

	- 1 -

 

---

 

	• The Company requests for the appointment of an ad hoc administrator (“administrateur ad hoc”) or the initiation of a conciliation procedure (“procédure de conciliation”) in accordance with Articles L. 611-3 to L. 611-15 of the French Commercial Code; • A judgment for the opening of any insolvency proceedings set forth in Book VI of the French Commercial Code (French “procédures collectives”) with respect to the Company, including safeguard proceedings (“procédure de sauvegarde”), accelerated safeguard proceedings (“procédure de sauvegarde accélérée”), accelerated financial safeguard proceedings (“procédure de sauvegarde financière accélérée”), judicial reorganisation (“redressement judiciaire”), judicial liquidation (“liquidation judiciaire”) or for the judicial transfer of the whole of the business (“cession totale de l'entreprise”) or the partial transfer of the business (“cession partielle de l'entreprise”) is issued in respect of the Company pursuant to Articles L. 620-1 to L. 670-8 of the French Commercial Code
“Maturity Date”	has the meaning assigned to it in Paragraph 2.5(a).
“New Equity Financing”	means the closing of an equity financing round of the Company, excluding conversion of existing bonds or similar instruments.
“Nominal Value”	has the meaning assigned to it in Paragraph 2.1.
“B Preferred Shares”	means B preferred shares issued or to be issued by the Company.
“Redemption Notice”	has the meaning assigned to it in Paragraph 2.5(b).
“SPA”	has the meaning assigned to it in Paragraph 2.2.
“Terms and Conditions”	has the meaning assigned to it in the preamble hereto.

In accordance with the decisions of the shareholders of the Company dated 10 July 2023 and Article L.228-91 of the French Code de commerce, the Company has issued 1,250 Convertible Bonds, for a total principal amount of USD 250,000.

The Convertible Bonds are issued at a price of USD 200 per Convertible Bond (the “Nominal Value”) payable in a single subscription, without any issuance premium.

The Convertible Bonds have been issued and subscribed by the initial Holder in the context of the share purchase agreement executed on the date hereof between the current shareholders of the Company, as sellers, and the initial Holder, as purchaser, in relation to the acquisition by the later of all the securities and voting rights in the Company (the “SPA”) in order to finance the operations of the Company in the Ordinary Course of Business (as such term is defined in the SPA) consistent with past practices.

 

	- 2 -

 

---

 

The Nominal Value of each Convertible Bond will bear interest, for each year, at a rate of five (5) per cent (%) (the “Interest”).

The Interest will be calculated on the basis of the number of days elapsed during the relevant period (the first day of each period being included and the last day excluded) divided by three hundred and sixty-five (365) days.

Interest will begin to accrue from the date of subscription of the Convertible Bonds and will be capitalized annually on each anniversary date of the subscription of the Convertible Bonds, in accordance with the provisions of Article 1343-2 of the French Civil Code.

In the event of normal redemption in accordance with Paragraph 2.5(a) below, capitalized Interests and non-capitalized accrued Interests will be paid in full, together with the aggregate Nominal Value, on the Maturity Date.

In the event of conversion of the Convertible Bonds into B Preferred Shares in accordance with Paragraph 2.6, capitalized interest and non-capitalized accrued interest will be paid in full on the Conversion Date.

In the event of total or partial early redemption, capitalized interest and non-capitalized accrued interest will be paid pro rata temporis.

If any interest payment date is not a business day, the payment date will be the next business day.

In order to satisfy the legal and regulatory provisions in force, it being specified that, to the extent that no fees or other accessory is provided for, the effective total rate (taux effectif global) which would be applicable to the present bond loan is equal to 5% per year.

Convertible Bonds are in the form of registered securities.

Save in case of Free Transfer, any transfer of all or part of the Convertible Bonds is subject to the prior approval of the president (président) of the Company.

The transfer of the Convertible Bonds will be made exclusively by transfer form (ordre de mouvement) signed by the transferor and the transfer of ownership will result from the entry of the relevant Convertible Bonds in the account of the transferee in the securities transfer register and the security holder accounts of the Company.

Any transfer of Convertible Bond will result in the transferee adhering to these Terms and Conditions and assignment of all rights attached to each Convertible Bond.

The Convertible Bonds will constitute direct, general, unconditional and unsecured obligations of the Company. Cash redemptions made by the Company pursuant to the provisions hereof shall rank equally among themselves and with all other unsecured, unsubordinated indebtedness and guarantees, whether present or, subject to the terms and conditions hereof, future, of the Company.

 

	- 3 -

 

---

 

Unless they have been previously redeemed or converted, the Convertible Bonds will be redeemed in whole for their Nominal Value plus any accrued Interests, on 31 December 2023 (the “Maturity Date”).

Pursuant to the provisions of Article L. 228-76 of the French Commercial Code, it may be proceeded in the event of an early dissolution of the Company before the Maturity Date, at the initiative of the Company or of the Holder, to the early repayment of all outstanding Convertible Bonds for their Nominal Value plus any accrued Interests.

In addition, in the event that, before the Maturity Date, any of the following events occurs:

the Holder may, at any time following such event, send by written notification to the Company a request for the redemption of all or part of the Convertible Bonds it holds in cash, for their Nominal Value plus any accrued Interests (the “Redemption Notice”) and the Company shall then proceed with the repayment of the Convertible Bonds’ Nominal Value plus any accrued Interests pursuant to the provisions of this agreement.

The Company and its president (president) hereby undertake to communicate in writing to the Holder within 5 Business Days of the date on which they became aware of any of the occurrence of any of the events mentioned herein.

Subject to the prior approval of the Holder, the Company may, at any time and at its sole discretion, decide to redeem all or part of the Convertible Bonds in cash (Nominal Value and accrued Interests), without penalty, by sending a written Redemption Notice to the Holder.

 

	- 4 -

 

---

 

The reimbursement of the Convertible Bonds will be made under the sole deduction of withholding taxes or taxes that the Law imposes or may impose on the holders on a mandatory basis.

In the event of normal redemption in accordance with Paragraph 2.5(a) above, the Company shall reimburse the full amount of the Convertible Bonds (Nominal Value and accrued Interests) on the first business day following the Maturity Date.

In the event of a mandatory or voluntary early redemption in accordance with Paragraph 2.5(b) or 2.5(c), the Company shall reimburse the full amount of the relevant Convertible Bonds (Nominal Value and accrued Interests) within fifteen (15) business days following the date of the Redemption Notice.

Any amount due (including any amount due as late interest pursuant to this Article) to the Holder and not paid by the Company on its due date shall give rise to the payment of late interest at the annual rate of five per cent (5 %), calculated on the basis of the number of days elapsed between the day after this due date and the effective date of payment of the said sum and a year of 365 days.

The late interest will be capitalized annually, in accordance with the provisions of Article 1343-2 of the French Civil Code.

The redeemed Convertible Bond will be immediately cancelled and may not, therefore, be reissued or resold.

The Holder may request, at any time following the acquisition of the Control of the Company by the Holder or in case of an Insolvency Event, the conversion of all the Convertible Bonds it holds at the rate of one (1) B Preferred Share of the Company per Convertible Bond.

In support of its request for conversion, the Holder will have to complete a conversion form constituting a subscription for new B Preferred Shares of the Company.

In the event that the reserves and premiums shown in Company's equity are insufficient to ensure the conversion of all Convertible Bonds into B Preferred Shares on the date of conversion, the Company will take the necessary measures (e.g. prior share capital reduction) to enable such conversion.

It is further specified that, for accounting purposes, in the event of conversion of any Convertible Bonds, the outstanding nominal amount of the relevant Convertible Bonds shall be converted from US dollars to euros at the exchange rate applicable on the business day immediately prior to the date of conversion.

The B Preferred Shares issued upon conversion of the Convertible Bonds shall be subject to the articles of association of the Company and will vest their holders with full rights attached thereto as from their issuance date.

 

	- 5 -

 

---

 

In particular, the B Preferred Shares issued upon conversion of the Convertible Bonds shall carry dividend rights as from the first day of the financial year in which they are issued.

The Holder may notify the Company at any time after a Change of Control of the Company of its decision to convert all of the Convertible Bonds it holds into B Preferred Shares (the “Conversion Notice”). The Conversion Notice will be accompanied by the corresponding subscription form, it being specified that the subscription of the corresponding new B Preferred Shares will be effected solely by virtue of the Conversion Notice and the delivery of the corresponding duly signed subscription form.

Subject to the receipt by the Company of a Conversion Notice and the corresponding subscription form, the Convertible Bonds will be converted on the next business day following the date of the Conversion Notice (the “Conversion Date”). The Convertible Bonds converted into B Preferred Shares will be cancelled by the Company upon issuance of the new B Preferred Shares resulting from conversion of such Convertible Bonds.

The Company represents and warrants to the Bondholders that, as at the date hereof:

 

	- 6 -

 

---

 

In the event that the Company subsequently issues new convertible bonds in B Preferred Shares whose characteristics are identical to those of the Convertible Bonds and whose holders have rights identical to those of the holders of Convertible Bonds, the holders of such convertible bonds and the Holders of Convertible Bonds will be grouped into a single pool.

Any notice provided for herein must be sent (i) if the Company is the recipient, to the address of its registered office, or (ii) if the Holder is the recipient, to the address appearing on the subscription form or the transfer form (ordre de mouvement) of the Convertible Bonds or to any other address that such Holder may have indicated in accordance with the provisions of this Paragraph .

To be validly made, any notification must (i) be delivered by hand against receipt dated and signed by its recipient (or its agent) or (ii) sent by email or fax and confirmed by registered mail with a request for receipt.

A hand-delivered notification will be deemed to have been sent and received on the date of the receipt. A notification sent by fax and confirmed by registered mail with a request for acknowledgement of receipt will be deemed (i) sent on the day the email or fax is sent (or on the following day if sent after 6 p.m.) and (ii) received (a) on the date indicated on the receipt notice or (b) if the registered mail has not been withdrawn, on the date of its first submission.

In the event of a reduction of the share capital of the Company motivated by losses, by reduction either of the nominal amount of the shares or of the number of these, the rights of the Holders will be reduced accordingly, As if they had converted their Convertible Bonds before the date on which the capital reduction became final, in accordance with Article L. 228-98 of the French Commercial Code.

The Convertible Bonds and these Terms and Conditions are governed by French law.

Any dispute arising from the interpretation or execution of the Terms and Conditions shall be subject to the jurisdiction of the Commercial Court of Paris.

 

	- 7 -

 

---

 

Exhibit 99.1

 

 

Inogen Expands Its Respiratory Product Portfolio with Acquisition of Physio-Assist

 

Acquisition Enables Evolution to a Global Respiratory Care Company by Adding a Sizable, Growing and Underserved Airway Clearance Market Opportunity

Inogen Provides Preliminary, Unaudited Second Quarter Financial Update

Inogen to Announce Second Quarter Financial Results on August 7, 2023

GOLETA, Calif., July 13, 2023 - Inogen, Inc. (Nasdaq: INGN), a medical technology company offering innovative respiratory products for use in the homecare setting, today announced that the company has entered into a definitive agreement to purchase Physio-Assist SAS, a privately-held company headquartered in France.

Physio-Assist developed and manufactures Simeox, a technology-enabled airway clearance device with a proven efficacy and safety profile, currently used outside of the United States, to treat a condition in the lungs known as bronchiectasis, where the lung’s bronchi become damaged and widened, that is often present in cystic fibrosis and chronic obstructive pulmonary disease. Simeox is used in pulmonary rehabilitation centers, as well as at home. Simeox has been cleared under CE mark in the EU and is currently being sold in Europe, Asia, and the Middle East.

“This acquisition aligns with our strategy to diversify our portfolio to globally improve patient lives through respiratory care, said Nabil Shabshab, President and Chief Executive Officer of Inogen, “Simeox imminently expands our product offering in EMEA, and potentially in the US to serve COPD and other chronic disease patients who suffer from bronchiectasis with an innovative, non-invasive, and next generation airway clearance solution. We believe this is a compelling transaction, as it expands our addressable market opportunity, enhances our long-term growth and profitability, and is expected to generate an attractive return on investment.”

“I am very excited about Physio-Assist becoming a part of the Inogen organization and view this as a significant milestone in the journey to scale the Simeox differentiated product offerings globally in service of bronchiectasis and cystic fibrosis patients with unmet needs, said Adrien Mithalal, Chief Executive Officer of Physio-Assist.”

Strategic Rationale

 

---

 

 

Financial Details

Inogen will pay approximately $32 million in cash net of debt payable at closing, plus potential future cash performance-based milestone payments based on achievement of goals related to FDA clearance of the device. The total consideration, if all milestones are achieved, will not exceed $45 million. The amount of the performance-based milestones may also be adjusted net of related development costs.

In 2023, the acquisition is expected to be immaterial to Inogen’s revenue and immediately accretive to gross margin. Given the clinical and commercial investment required to obtain FDA clearance and launch Simeox in the US, the transaction is expected to be accretive to adjusted earnings beginning in 2027.

The transaction, which has been approved by the Board of Directors of Inogen and Physio-Assist, is subject to the satisfaction of customary closing conditions, including Foreign Investment Authority approval from the French Ministry of Economy. The transaction is expected to close in the fourth quarter of 2023.

In connection with the acquisition and to facilitate the operations of Physio-Assist between signing and expected close of the transaction, Inogen will be providing Physio-Assist a short-term loan in the amount of up to $500,000. Upon close, assuming the full $500,000 has been drawn, $250,000 will be used to reduce the purchase price and $250,000 will be forgiven.

 

Preliminary, Unaudited Second Quarter Financial Update

 

Inogen estimates preliminary, unaudited total revenue in the second quarter of 2023 to be in the range of $83 million to $84 million. Revenue was lower than expected in U.S and International business-to-business, and lower direct-to consumer revenue despite continued productivity gains. This performance was partially offset by growth in rental revenue reflecting the company’s strategic focus on US prescribers.

 

These preliminary, unaudited estimates are based solely upon information available to management as of the date of this press release. Inogen’s actual results may differ from these estimates due to the completion of its quarter-end closing procedures, final adjustments and developments that may arise between now and the time its financial results for the quarter ended June 30, 2023, are finalized. In light of these preliminary results, the Company intends to provide updated 2023 guidance on the second quarter earnings call.

 

Quarterly Conference Call Information

Inogen will issue second quarter 2023 financial results after the market closes on Monday, August 7, 2023. On the same day, the Company will host a conference call at 1:30 p.m. PT / 4:30 p.m. ET.

Individuals interested in listening to the conference call may do so by dialing:

US domestic callers (877) 841-3961

Non-US callers (201) 689-8589

Please reference Inogen to join the call. To listen to a live webcast, please visit the Investor Relations section of Inogen's website at: http://investor.inogen.com/. This webcast will also be archived on the website for 6 months.

 

 

---

 

A replay of the call will be available approximately three hours after the live webcast ends and will be accessible through August 14, 2023. To access the replay, dial (877) 660-6853 or (201) 612-7415 and reference Conference ID: 13739327.

Inogen has used, and intends to continue to use, its Investor Relations website, http://investor.inogen.com/, as a means of disclosing material non-public information and for complying with its disclosure obligations under Regulation FD. For more information, visit http://investor.inogen.com/.

 

About Inogen

Inogen, Inc. (Nasdaq: INGN) is a leading global medical technology company offering innovative respiratory products for use in the homecare setting. Inogen supports patient respiratory care by developing, manufacturing, and marketing innovative best-in-class portable oxygen concentrators used to deliver supplemental long-term oxygen therapy to patients suffering from chronic respiratory conditions. Inogen partners with patients, prescribers, home medical equipment providers, and distributors to make its oxygen therapy products widely available allowing patients the chance to remain ambulatory while managing the impact of their disease.

For more information, please visit www.inogen.com.

Forward-Looking Statements

This press release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, including, among others, statements with respect to the acquisition of Physio-Assist including impact on gross margin, statements related to Inogen’s portfolio diversification, product expansion, addressable market opportunity including potentially in the US, and long term growth and profitability; and statements related to Inogen’s preliminary second quarter 2023 results and intention to provide updated guidance . Any statements contained in this communication that are not statements of historical fact may be deemed to be forward-looking statements. Words such as “believes,” “anticipates,” “plans,” “expects,” “will,” “intends,” “potential,” “possible,” and similar expressions are intended to identify forward-looking statements. Forward-looking statements are subject to numerous risks and uncertainties that could cause actual results to differ materially from currently anticipated results, including but not limited to, risks related to completion of the acquisition and achievement of milestones, and risks arising from the possibility that Inogen will not realize anticipated future financial performance or strategic goals. In addition, Inogen's business is subject to numerous additional risks and uncertainties, including, among others, risks relating to market acceptance of its products; competition; its sales, marketing and distribution capabilities; its planned sales, marketing, and research and development activities; interruptions or delays in the supply of components or materials for, or manufacturing of, its products; seasonal variations; unanticipated increases in costs or expenses; and risks associated with international operations. Information on these and additional risks, uncertainties, and other information affecting Inogen’s business operating results are contained in its Annual Report on Form 10-K for the period ended December 31, 2022, and its Quarterly Report on Form 10-Q for the three month period ended March 31, 2023, and in its other filings with the Securities and Exchange Commission. These forward-looking statements speak only as of the date hereof. Inogen disclaims any obligation to update these forward-looking statements except as may be required by law.

 

---

 

Contact:

Agnes Lee

ir@inogen.net

 

 

---

v3.23.2

Document And Entity Information	Jul. 10, 2023
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Jul. 10, 2023
Entity Registrant Name	Inogen Inc
Entity Central Index Key	0001294133
Entity Emerging Growth Company	false
Securities Act File Number	001-36309
Entity Incorporation, State or Country Code	DE
Entity Tax Identification Number	33-0989359
Entity Address, Address Line One	301 Coromar Drive
Entity Address, City or Town	Goleta
Entity Address, State or Province	CA
Entity Address, Postal Zip Code	93117
City Area Code	(805)
Local Phone Number	562-0500
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, $0.001 par value
Trading Symbol	INGN
Security Exchange Name	NASDAQ

---