Stalking Horse Bidder

Case 23-13359-VFP Doc 708 Filed 06/13/23 Entered 06/13/23 07:00:37 Desc Main
Document Page 1 of 102
KIRKLAND & ELLIS LLP COLE SCHOTZ P.C.

KIRKLAND & ELLIS INTERNATIONAL LLP Michael D. Sirota, Esq.
Joshua A. Sussberg, P.C. (admitted pro hac vice) Warren A. Usatine, Esq.
Emily E. Geier, P.C. (admitted pro hac vice) Felice R. Yudkin, Esq.
Derek I. Hunter (admitted pro hac vice) Court Plaza North, 25 Main Street
601 Lexington Avenue Hackensack, New Jersey 07601
New York, New York 10022 (201) 489-3000
Telephone: (212) 446-4800 msirota@coleschotz.com
Facsimile: (212) 446-4900 wusatine@coleschotz.com
joshua.sussberg@kirkland.com fyudkin@coleschotz.com
emily.geier@kirkland.com
derek.hunter@kirkland.com
Co-Counsel for Debtors and

Debtors in Possession
UNITED STATES BANKRUPTCY COURT

DISTRICT OF NEW JERSEY
In re: Chapter 11
BED BATH & BEYOND INC., et al., Case No. 23-13359 (VFP)
Debtors.1 (Joint Administration Requested)
NOTICE OF SELECTION OF STALKING HORSE BIDDER
PLEASE TAKE NOTICE that on April 23, 2023, the above-captioned debtors and
debtors in possession (collectively, the “Debtors”) filed the Debtors’ Motion for Entry of an Order
(I)(A) Approving the Auction and Bidding Procedures, (B) Approving Stalking Horse Bid
Protections, (C) Scheduling Bid Deadlines and an Auction, (D) Approving the Form and Manner
of Notice Thereof, (E) Approving the Form APA, and (II)(A) Establishing Notice and Procedures
for the Assumption and Assignment of Contracts and Leases, (B) Authorizing the Assumption and
1 The last four digits of Debtor Bed Bath & Beyond Inc.’s tax identification number are 0488. A complete list of
the Debtors in these chapter 11 cases and each such Debtor’s tax identification number may be obtained on the
website of the Debtors’ claims and noticing agent at https://restructuring.ra.kroll.com/bbby.
The location of Debtor Bed Bath & Beyond Inc.’s principal place of business and the Debtors’ service address
in these chapter 11 cases is 650 Liberty Avenue, Union, New Jersey 07083.
Assignment of Assumed Contracts, (C) Authorizing the Sale of Assets and (D) Granting Related
Relief [Docket No. 29] (the “Bidding Procedures Motion”).2
PLEASE TAKE FURTHER NOTICE that on April 25, 2023, the Court entered the
Order (I) Approving the Auction and Bidding Procedures, (II) Approving Stalking Horse Bid
Protections, (III) Scheduling Bid Deadlines and an Auction, (IV) Approving the Form and Manner
of Notice Thereof, and (V) Granting Related Relief [Docket No. 92] (the “Bidding Procedures
Order”). The approved bidding procedures (the “Bidding Procedures”) were attached as Exhibit 1
to the Bidding Procedures Order.
PLEASE TAKE FURTHER NOTICE that on June 12, 2023, pursuant to and in
accordance with the Bidding Procedures Order, the Debtors selected Overstock.com, Inc. to act as
the Stalking Horse Bidder for the Acquired Assets (as defined in the Stalking Horse Agreement).
PLEASE TAKE FURTHER NOTICE that the Stalking Horse Agreement, including
exhibits that identify, among other things, the Assets that are proposed to be sold to the Stalking
Horse Bidder, is attached hereto as Exhibit A.
PLEASE TAKE FURTHER NOTICE that the proposed Purchase Price is
$21,500,000.00 in cash consideration.
PLEASE TAKE FURTHER NOTICE that the Stalking Horse Bidder does not have any
connection to the Debtors other than those that arise from the Stalking Horse Bid.
PLEASE TAKE FURTHER NOTICE that the Stalking Horse Agreement provides for,
among other things, (a) a Break-Up fee equal to 2% of the proposed Purchase Price and (b) an
2 Capitalized terms used herein but not otherwise defined shall have meanings ascribed to them in the Bidding
Procedures Motion.
2
Expense Reimbursement provision for reasonable, actual, and documented out-of-pocket expenses
of the Stalking Horse Bidder of up to 2% of the proposed Purchase Price.3
PLEASE TAKE FURTHER NOTICE that the Debtors and the Stalking Horse
Bidder reserve all of their rights to amend, modify, change, revise or otherwise alter in any respect
the Stalking Horse Agreement in accordance with the terms of the Stalking Horse Agreement and
the Bidding Procedures Order.
PLEASE TAKE FURTHER NOTICE that the deadline for any party in interest to object
to the Debtors’ designation of the Stalking Horse Bidder or the Bid Protections is
Tuesday, June 20, 2023 at 9:00 a.m. (prevailing Eastern Time).
PLEASE TAKE FURTHER NOTICE that copies of all documents filed in the
above-captioned chapter 11 cases may be obtained free of charge by visiting the website of Kroll
at http://www.cases.kroll.com/bbby. You may also obtain copies of any filed documents by
visiting the Court’s website at http://www.njb.uscourts.gov in accordance with the procedures and
fees set forth therein.
[Remainder of page intentionally left blank.]
3 If applicable, the Debtors will seek approval of any Bid Protections in excess of the amounts authorized through
the Bidding Procedures Order in connection with the Sale Hearing.
3
Dated: June 13, 2023

/s/ Michael D. Sirota
COLE SCHOTZ P.C.
Michael D. Sirota, Esq.
Warren A. Usatine, Esq.
Felice R. Yudkin, Esq.
Court Plaza North, 25 Main Street
Hackensack, New Jersey 07601
Telephone: (201) 489-3000
Email: msirota@coleschotz.com
wusatine@coleschotz.com
fyudkin@coleschotz.com
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KIRKLAND & ELLIS LLP

KIRKLAND & ELLIS INTERNATIONAL LLP
Joshua A. Sussberg, P.C. (admitted pro hac vice)
Emily E. Geier, P.C. (admitted pro hac vice)
Derek I. Hunter (admitted pro hac vice)
601 Lexington Avenue
New York, New York 10022
Telephone: (212) 446-4800
Facsimile: (212) 446-4900
Email: joshua.sussberg@kirkland.com
Co-Counsel for Debtors and Debtors

in Possession
Exhibit A
Stalking Horse Agreement

EXECUTION VERSION
ASSET PURCHASE AGREEMENT
DATED AS OF JUNE 12, 2023
BY AND AMONG
BED BATH & BEYOND INC.,
OVERSTOCK.COM, INC.
AND THE OTHER PARTIES SIGNATORY HERETO
KE 97316667.15
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ............................................................................................................2
Section 1.1 Definitions..........................................................................................................2

Section 1.2 Other Definitions and Interpretive Matters......................................................12
ARTICLE II PURCHASE AND SALE ........................................................................................14
Section 2.1 Purchase and Sale of the Acquired Assets.......................................................14

Section 2.2 Excluded Assets ...............................................................................................15
Section 2.3 Shared Assets ...................................................................................................15
Section 2.4 Assumed Liabilities .........................................................................................16
Section 2.5 Excluded Liabilities .........................................................................................16
Section 2.6 Withholding .....................................................................................................16
Section 2.7 Assignment of Contracts..................................................................................16
ARTICLE III PURCHASE PRICE ...............................................................................................18
Section 3.1 Purchase Price..................................................................................................18

Section 3.2 Deposit .............................................................................................................18
Section 3.3 Closing Date Payments ....................................................................................19
Section 3.4 Discharge of Assumed Liabilities After Closing .............................................19
Section 3.5 Release of Escrow Amounts ............................................................................19
Section 3.6 Allocation of Purchase Price............................................................................20
ARTICLE IV CLOSING ...............................................................................................................21
Section 4.1 Closing Date.....................................................................................................21

Section 4.2 Buyer’s Deliveries ...........................................................................................21
Section 4.3 Sellers’ Deliveries............................................................................................22
ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLERS................................22
Section 5.1 Organization and Qualification........................................................................22

Section 5.2 Authorization of Agreement ............................................................................22
Section 5.3 Conflicts; Consents ..........................................................................................23
Section 5.4 Title to Properties.............................................................................................23
Section 5.5 Contracts ..........................................................................................................23
Section 5.6 No Litigation....................................................................................................25
Section 5.7 Permits; Compliance with Laws ......................................................................25
Section 5.8 Intellectual Property.........................................................................................25
Section 5.9 Data Security and Personal Information ..........................................................26
Section 5.10 Tax Matters ......................................................................................................27
Section 5.11 Sufficiency .......................................................................................................27
Section 5.12 Brokers.............................................................................................................28
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Section 5.13 No Other Representations or Warranties .........................................................28
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF BUYER..................................29
Section 6.1 Organization and Qualification........................................................................29

Section 6.2 Authorization of Agreement ............................................................................29
Section 6.3 Conflicts; Consents ..........................................................................................29
Section 6.4 Financing..........................................................................................................30
Section 6.5 Brokers.............................................................................................................30
Section 6.6 No Litigation....................................................................................................30
Section 6.7 No Foreign Person ...........................................................................................30
Section 6.8 Solvency...........................................................................................................30
Section 6.9 No Additional Representations or Warranties .................................................31
ARTICLE VII BANKRUPTCY COURT MATTERS..................................................................31
Section 7.1 Bankruptcy Actions .........................................................................................31

Section 7.2 Sale Order ........................................................................................................32
Section 7.3 Approval ..........................................................................................................33
ARTICLE VIII COVENANTS AND AGREEMENTS ................................................................33
Section 8.1 Conduct of Business of Sellers ........................................................................33

Section 8.2 Access to Information ......................................................................................34
Section 8.3 Reasonable Efforts; Cooperation .....................................................................36
Section 8.4 Further Assurances...........................................................................................36
Section 8.5 Insurance Matters.............................................................................................36
Section 8.6 Receipt of Misdirected Assets; Liabilities .......................................................36
Section 8.7 Transitional Trademark License ......................................................................37
Section 8.8 Transitional Welcome Marks License .............................................................37
Section 8.9 Transitional Trademark License Back .............................................................37
Section 8.10 Legal Entity Names..........................................................................................38
Section 8.11 Mobile Platform Transfer and Update .............................................................38
Section 8.12 Use of Email ....................................................................................................38
Section 8.13 Cooperation on Communications ....................................................................39
Section 8.14 IP Condition .....................................................................................................39
Section 8.15 Acknowledgment by Buyer .............................................................................39
ARTICLE IX CONDITIONS TO CLOSING ...............................................................................40
Section 9.1 Conditions Precedent to the Obligations of Buyer and Sellers........................40

Section 9.2 Conditions Precedent to the Obligations of Buyer ..........................................41
Section 9.3 Conditions Precedent to the Obligations of Sellers .........................................41
ARTICLE X TERMINATION ......................................................................................................42
Section 10.1 Termination of Agreement...............................................................................42

Section 10.2 Effect of Termination.......................................................................................43
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ARTICLE XI TAXES....................................................................................................................45
Section 11.1 Transfer Taxes .................................................................................................45

Section 11.2 Periodic Taxes..................................................................................................45
Section 11.3 Reimbursements...............................................................................................46
Section 11.4 Cooperation......................................................................................................46
Section 11.5 Preparation of Tax Returns and Payment of Taxes .........................................46
ARTICLE XII MISCELLANEOUS..............................................................................................46
Section 12.1 Non-Survival of Representations and Warranties and Certain

Covenants; Certain Waivers ............................................................................46
Section 12.2 Expenses ..........................................................................................................47
Section 12.3 Notices .............................................................................................................47
Section 12.4 Binding Effect; Assignment.............................................................................48
Section 12.5 Amendment and Waiver ..................................................................................48
Section 12.6 Third Party Beneficiaries .................................................................................48
Section 12.7 Non-Recourse ..................................................................................................49
Section 12.8 Severability ......................................................................................................49
Section 12.9 Construction.....................................................................................................49
Section 12.10 Disclosure Schedules .......................................................................................49
Section 12.11 Complete Agreement .......................................................................................50
Section 12.12 Specific Performance .......................................................................................50
Section 12.13 Jurisdiction and Exclusive Venue....................................................................50
Section 12.14 Governing Law; Waiver of Jury Trial .............................................................51
Section 12.15 No Right to Set Off ..........................................................................................51
Section 12.16 Counterparts and PDF......................................................................................52
Section 12.17 Publicity ...........................................................................................................52
Section 12.18 Bulk Sales Laws...............................................................................................52
Section 12.19 Time of Essence...............................................................................................52
Section 12.20 Sellers’ Representative.....................................................................................53
ANNEX
ANNEX A Subsidiary Sellers
EXHIBITS
EXHIBIT A Form of Sale Order
EXHIBIT B Form of Bill of Sale and Assignment and Assumption Agreement
EXHIBIT C Form of Intellectual Property Assignment Agreement
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this “Agreement”) is made as of June 12, 2023
(the “Effective Date”), by and among Overstock.com, Inc., a Delaware corporation (“Buyer”), and
Bed Bath & Beyond Inc., a New York corporation (“BBBY”), and certain Subsidiaries of BBBY
set forth on Annex A hereto (collectively and together with BBBY and each other Subsidiary of
BBBY that has a right, title and interest in the Acquired Assets or Assumed Liabilities, “Sellers”
and each individually a “Seller”). Capitalized terms used herein and not otherwise defined herein
have the meaning set forth in Article I.
RECITALS
WHEREAS, Sellers are engaged in the business of marketing, providing and selling
merchandise, interior design, home furnishings and related accessories and services under or in
connection with the “BED BATH & BEYOND” brand and the other Trademarks identified on
Section 2.1(a) of the Disclosure Schedules (collectively, the “Business”), as well as marketing,
providing, and selling baby-related merchandise, baby specialty products, beauty supplies and
other related accessories and services under or in connection with the “HARMON” and
“buybuyBaby” brands and the other Trademarks identified on Section 2.2(a) of the Disclosure
Schedules (collectively, the “Excluded Businesses”);
WHEREAS, on April 23, 2023, Sellers filed a voluntary petition for relief (the “Filing”)
commencing a case under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy
Court for the District of New Jersey (the “Bankruptcy Court”);
WHEREAS, Buyer has delivered, or is delivering within one Business Day of the Effective
Date, to the Deposit Escrow Agent an amount in cash equal to 10% of the Cash Consideration (the
“Deposit”) in immediately available funds pursuant to the terms of the Bidding Procedures Order;
WHEREAS, Sellers believe, following consultation with their financial advisors and
consideration of available alternatives, that, in light of the current circumstances, a sale of certain
of Sellers’ intellectual property and other assets as provided herein is necessary to preserve and
maximize value, and is in the best interest of Sellers, their creditors, and other stakeholders;
WHEREAS, Sellers desire to sell to Buyer all of the Acquired Assets (defined below) and
transfer to Buyer the Assumed Liabilities (defined below) and Buyer desires to purchase from
Sellers all of the Acquired Assets and assume all of the Assumed Liabilities, in each case upon the
terms and conditions hereinafter set forth;
WHEREAS, the execution and delivery of this Agreement and Sellers’ ability to
consummate the transactions set forth in this Agreement are subject to, among other things, the
entry of the Sale Order under, inter alia, Sections 363 and 365 of the Bankruptcy Code; and
WHEREAS, the Parties desire to consummate the proposed transactions set forth in this
Agreement as promptly as practicable after the Bankruptcy Court enters the Sale Order.
NOW, THEREFORE, in consideration of the premises and the mutual promises herein
made, and in consideration of the representations, warranties and covenants herein contained, the
receipt and adequacy of which are hereby acknowledged and intending to be legally bound hereby,
the Parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For purposes of this Agreement, the following terms have the
meanings specified or referenced below.
“Acquired Assets” shall have the meaning set forth in Section 2.1.
“Advisors” means, with respect to any Person, any directors, officers, employees,
investment bankers, financial advisors, accountants, agents, attorneys, consultants, or other
representatives of such Person.
“Affiliate” means, with respect to any Person and as of any relevant time, any other Person
directly or indirectly controlling, controlled by, or under common control with, such other Person.
For purposes of this definition, “control” when used with respect to any Person means the power
to direct the management and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise, and the terms “controlling” and
“controlled” have correlative meanings.
“Agreement” shall have the meaning set forth in the Preamble.
“Agreement Dispute” shall have the meaning set forth in Section 12.13.
“Allocation” shall have the meaning set forth in Section 3.6(a).
“Allocation Objection Notice” shall have the meaning set forth in Section 3.6(a).
“Alternative Transaction” means any transaction (or series of transactions), whether direct
or indirect, whereby any Person or group of Persons (other than Sellers and their Affiliates or
Buyer and its Affiliates) acquires a material portion of the Acquired Assets, in each case whether
by merger, sale of assets or equity, recapitalization, plan of reorganization or otherwise.
Notwithstanding the foregoing, neither (i) a liquidation or wind-down of Sellers’ estates nor (ii)
one or more Sellers engaging in a transaction or transactions to divest all or any portion of an
Excluded Business, shall be an Alternative Transaction.
“Alternative Transaction Trigger” shall have the meaning set forth in Section 10.2(c).
“Assignment and Assumption Agreement” shall have the meaning set forth in
Section 4.2(e).
“Assumed Liabilities” shall have the meaning set forth in Section 2.4.
“Auction” shall have the meaning set forth in the Bidding Procedures.
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“Backup Bidder” shall have the meaning set forth in Section 7.1(c).
“Bankruptcy Case” means, collectively, the bankruptcy cases commenced by Sellers under
Chapter 11 of the Bankruptcy Code in the Bankruptcy Court in the Filing.
“Bankruptcy Code” means Title 11 of the United States Code, Sections 101 et seq.
“Bankruptcy Court” shall have the meaning set forth in the Recitals.
“BBBY” shall have the meaning set forth in the Preamble.
“Bidding Procedures” means the bidding procedures attached as Exhibit 1 to the Bidding
Procedures Order and approved by the Bankruptcy Court pursuant to the Bidding Procedures Order
and as amended and supplemented.
“Bidding Procedures Order” means the Order, (I) Approving the Auction and Bidding
Procedures, (II) Approving Stalking Horse Bid Protections, (III) Scheduling Bid Deadlines and an
Auction, (IV) Approving the Form and Manner of Notice Thereof, and (V) Granting Related Relief
(Docket No. 92).
“Breakup Fee” shall have the meaning set forth in Section 10.2(c).
“Business Data” means all books, records, data, databases, taxonomies, documents and
files collected, held or used in connection with the Business, including (to the extent collected,
held or used in connection with the Business) all (i) vendor and supplier lists and associated
information, (ii) customer data, together with all data held or collected in connection therewith (in
any data field), including all contact information, demographic information, transaction and usage
histories, registry information, loyalty program data (including with respect to customer
participation, loyalty tiers, reward balances and other information) and gift card information
(including with respect to usage, cards issued and balances), (iii) customer opt-out or opt-in lists,
(iv) current customer models, segmentation, life time value, share of wallet, probability to shop
and next product to buy, and other customer-based analyses or reports, (v) blog content, social
media content, analytics (including data relating to Internet Properties) visitor data, product review
and user-generated content (including images, text, video and all other content), (vi) other cost,
pricing and sales data, (vii) other information incorporated in or relating to any other Acquired
Asset (including the development, maintenance, use or operation thereof), and (viii) usernames,
passwords and credentials used to access, use, manage, maintain or renew any of the foregoing, in
all cases set forth in the foregoing clauses (i) through (viii), whether such information is stored by
or on behalf of Sellers or any of their Affiliates.
“Business Day” means any day of the year, other than a Saturday or Sunday, on which
national banking institutions in New York, New York are open to the public for conducting
business and are not required or authorized by Law to close.
“Business Internet Properties” means all Internet Properties used or held for use primarily
in connection with the Business and operated by or on behalf of Sellers or any of their Affiliates,
including the Internet domain names and Social Media Accounts listed on Section 2.1(b) of the
Disclosure Schedules, together with (i) all site maps, templates, style guides, design materials and
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content (including any text, fonts, colors, cascading style sheets (CSS), layouts, video, images,
graphics and e-mail templates) made available thereon, (ii) all blog content posted on the foregoing
Internet Properties, (iii) all usernames, passwords and credentials used to access, use, manage,
maintain or renew any of the foregoing, and (iv) any documentation, information and other
materials used or held for use primarily in connection with any of the foregoing.
“Business IP” means all Intellectual Property owned by or licensed exclusively to any
Seller or any of its Affiliates (other than pursuant to an Excluded Listed Contract) that (i) is or was
used, acquired, developed or held for use, in each case, primarily in or primarily for the operation
of the Business, (ii) is embodied in and relates primarily to any other Acquired Assets (including
the development, maintenance, use or operation thereof), or (iii) is otherwise identified on
Section 2.1(a) of the Disclosure Schedules.
“Buyer” shall have the meaning set forth in the Preamble.
“Buyer Group” means Buyer, any Affiliate of Buyer and any future Affiliate of Buyer.
“Cash Consideration” means Twenty-One Million Five Hundred Thousand U.S. dollars
($21,500,000).
“Chosen Courts” shall have the meaning set forth in Section 12.13.
“Claims” means all claims, causes of action, rights of recovery (including rights of
indemnity, warranty rights, rights of contribution, rights to refunds and rights to reimbursement)
and rights of set-off, in each case, of whatever kind or description against any Person (including
any claim as defined in the Bankruptcy Code).
“Closing” shall have the meaning set forth in Section 4.1.
“Closing Date” shall have the meaning set forth in Section 4.1.
“Code” means the Internal Revenue Code of 1986, as amended.
“Confidentiality Agreement” means that certain letter agreement, dated as of January 26,
2023, by and between Bed Bath & Beyond, Inc. and Overstock.com, Inc.
“Consent” means any approval, consent, ratification, permission, waiver, Governmental

Authorization or other authorization, or an Order of the Bankruptcy Court that renders unnecessary
the same.
“Contract” means any contract, agreement, undertaking, lease, sublease, license,

sublicense, sales order, purchase order or other instrument or commitment, whether written or oral,
that is binding on any Person or any part of its property under applicable Law.
“Cure Costs” means, with respect to any Contract, the amount required to be paid with
respect to such Contract to cure all monetary defaults under such Contract to the extent required
by section 365(b) of the Bankruptcy Code.
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“Dataroom” shall have the meaning set forth in Section 5.13.
“Deposit” shall have the meaning set forth in the Recitals.
“Deposit Escrow Agent” means Kroll Restructuring Administration LLC.
“Documents” means all of Sellers’ written files, documents, instruments, papers, books,
reports, records, tapes, microfilms, photographs, letters, budgets, forecasts, plans, operating
records, safety and environmental reports, data, studies, and documents, ledgers, journals, title
policies, customer lists, regulatory filings, operating data and plans, research material, technical
documentation (design specifications, engineering information, test results, logic manuals,
processes, flow charts, etc.), user documentation (installation guides, user manuals, training
materials, release notes, working papers, etc.), marketing documentation (sales brochures, flyers,
pamphlets, web pages, etc.), and other similar materials, in each case whether or not in electronic
form.
“Effect” shall have the meaning set forth in the definition of “Material Adverse Effect”.
“Effective Date” shall have the meaning set forth in the Preamble.
“Encumbrance” means any lien (as defined in section 101(37) of the Bankruptcy Code),
encumbrance, claim (as defined in section 101(5) of the Bankruptcy Code), charge, mortgage, deed
of trust, option, pledge, security interest or similar interests, title defects, hypothecations,
easements, rights of way, encroachments, Orders, conditional sale or other title retention
agreements and other similar impositions, imperfections or defects of title or restrictions on
transfer or use.
“Enforceability Exceptions” shall have the meaning set forth in Section 5.2.
“Escrow Account” means the escrow account established pursuant to the Escrow
Agreement to hold the GoB Escrow Amount and the IP Escrow Amount.
“Escrow Agent” means Acquiom Clearinghouse LLC.
“Escrow Agreement” means a mutually agreed customary escrow agreement consistent

with the terms of this Agreement.
“Excess Cure Costs” means, with respect to any individual Transferred Contract, the
amount of Cure Costs with respect to such Transferred Contract as determined by the Bankruptcy
Court that exceeds the expected amount of Cure Costs set forth on Section 2.4(c) of the Disclosure
Schedules with respect to such Transferred Contract. For the avoidance of doubt, if any individual
Transferred Contract does not appear on Section 2.4(c) of the Disclosure Schedules or if the
expected amount set forth on Section 2.4(c) of the Disclosure Schedules with respect to any
individual Transferred Contract is listed as “$-”, the expected amount set forth on Section 2.4(c)
of the Disclosure Schedules with respect to such Transferred Contract shall be deemed to be $0.
“Excluded Assets” shall have the meaning set forth in Section 2.2.
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“Excluded Businesses” shall have the meaning set forth in the Recitals.
“Excluded Listed Contracts” shall have the meaning set forth in Section 2.2(d).
“Excluded Liabilities” shall have the meaning set forth in Section 2.5.
“Excluded Software” means all Software owned, held or operated by Sellers in connection
with the Business, excluding Software constituting part of the Mobile Platform or Business
Internet Properties.
“Excluded Taxes” means any Liability, obligation or commitment, whether or not accrued,
assessed, or currently due and payable, for any: (i) Taxes imposed on or payable by any Seller or
its respective Affiliates for any Tax period (including any Taxes required to be withheld from the
Purchase Price or any other payments or consideration payable to any Sellers hereunder pursuant
to Section 2.6); (ii) Taxes imposed with respect to any of the Acquired Assets, any of the Assumed
Liabilities or the Business for any Pre-Closing Tax Period, allocated in accordance with
Section 11.2; (iii) Taxes imposed on or with respect to any of the Excluded Assets or any of the
Excluded Liabilities for any Tax period; (iv) any Transfer Taxes for which Sellers are responsible
pursuant to Section 11.1; (v) Taxes imposed on Buyer or any of its Affiliates as a transferee or
successor to any Seller or its respective Affiliates by operation of Law; and (vi) Periodic Taxes for
which Sellers are responsible pursuant to Section 11.2; provided that Excluded Taxes shall not
include any Transfer Taxes or Periodic Taxes for which Buyer is responsible pursuant to
Section 11.1 or Section 11.2.
“Excluded Trademarks” means all Trademarks owned by Sellers, excluding those

Trademarks constituting Business IP.
“Expense Reimbursement” shall have the meaning set forth in Section 10.2(b).
“Express Representations” shall have the meaning set forth in Section 5.13.
“Filing” shall have the meaning set forth in the Recitals.
“Fraud” means common law fraud under Delaware Law, for the avoidance of doubt, taking
into account the terms and conditions of this Agreement (including Section 5.13, Section 6.9,
Section 8.14, Section 12.1, Section 12.7, and Section 12.10), but does not include any fraud claim
based on constructive knowledge, negligent misrepresentation, recklessness or a similar theory,
equitable fraud, promissory fraud or any other fraud or torts based on recklessness or negligence).
“Fundamental Representations” shall have the meaning set forth in Section 9.2(a).
“GAAP” means United States generally accepted accounting principles as in effect from
time to time.
“GoB Certificate” has the meaning set forth in Section 3.5(a).
“GoB Escrow Amount” means an amount equal to $5,000,000.
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“GoB Payout Amount” means the GoB Escrow Amount less, if the GoB Certificate is not
delivered to Buyer on or prior to July 31, 2023 an amount equal to $1,250,000 on August 1, 2023
and at the end of each seven-day period thereafter, until either the GoB Certificate is delivered to
Buyer or the GoB Payout Amount is reduced to zero.
“Governmental Authority” means any United States federal, state, municipal or local or
any foreign government, governmental agency or authority, or regulatory or administrative
authority, or any court, tribunal or judicial body having jurisdiction, including the Bankruptcy
Court.
“Governmental Authorization” means any permit, license, certificate, approval, consent,

permission, clearance, designation, qualification, or authorization issued, granted, given or
otherwise made available by or under the authority of any Governmental Authority or pursuant to
any Law.
“Independent Arbiter” shall have the meaning set forth in Section 3.6(a).
“Information Presentation” shall have the meaning set forth in Section 5.13.
“Intellectual Property” means all of the following: (i) patents, inventions, invention
disclosures, industrial designs and utility models; (ii) trademarks, service marks, logos, trade dress,
trade names, corporate names, and other indicia of commercial source or origin, and goodwill
associated with any of the foregoing (“Trademarks”); (iii) copyrights and all works of authorship,
whether copyrightable or not, including any Software and rights therein; (iv) Internet domain
names, URLs, internet protocol addresses, Social Media Accounts, websites, and all the content
provided on the foregoing (collectively, “Internet Properties”); (v) trade secrets, industrial secret
rights, and know-how, data, databases and confidential or proprietary information, including
customer lists, supplier lists, processes, protocols, specifications, drawings, schematics, analyses,
plans, techniques, technical plans and other forms of technology (whether or not embodied in any
tangible form, and including all tangible embodiments of the foregoing, such as notebooks,
samples, studies and summaries); (vi) rights in or associated with any of the foregoing, and all
other intellectual property rights and proprietary rights, in each case, arising in any jurisdiction of
the world; and (vii) any registrations of and pending applications to register any of the foregoing
clauses (i) through (vi), together with all renewals, reissuances, continuations, continuations-in-
part, divisionals, revisions, extensions, and reexaminations thereof.
“Internet Properties” shall have the meaning set forth in the definition of Intellectual
Property.
“IP Condition” has the meaning set forth in Section 8.14.
“IP Escrow Amount” means an amount set forth in Section 8.14 of the Disclosure
Schedules.
“Knowledge” means, with respect to any matter in question, in the case of Sellers, the
actual knowledge of each of Sue Gove, Holly Etlin and David Kastin, in each case, after reasonable
inquiry of applicable direct reports.
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“Law” means any federal, state, provincial, local, municipal, foreign or international,
multinational or other law, statute, legislation, constitution, principle of common law, resolution,
ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, ruling, Order,
directive, pronouncement, determination, decision, opinion or requirement issued, enacted,
adopted, promulgated, implemented or otherwise put into effect by or under the authority of any
Governmental Authority.
“Liability” means, as to any Person, any debt, adverse claim, liability, duty, responsibility,
obligation, commitment, assessment, cost, expense, loss, Tax, expenditure, charge, fee, penalty,
fine, contribution, or premium of any kind or nature whatsoever, whether known or unknown,
asserted or unasserted, absolute or contingent, direct or indirect, accrued or unaccrued, liquidated
or unliquidated, or due or to become due, and regardless of when sustained, incurred or asserted
or when the relevant events occurred or circumstances existed.
“Malicious Code” shall have the meaning set forth in Section 5.8(f).
“Material Adverse Effect” means (i) any material adverse change to the Acquired Assets
and the Assumed Liabilities or the value thereof, taken as a whole, or (ii) any event, change
condition, circumstance, development or effect that, individually or in the aggregate, would
reasonably be expected to prevent or materially impair or delay the ability of Sellers to
consummate the Closing; provided, however, that, in the case of the foregoing clause (I) only, no
event, change, condition, circumstance, development or effect (or the result thereof) (each an
“Effect”) shall be taken into account, individually or in the aggregate, in determining whether a
Material Adverse Effect has occurred to the extent arising from or relating to: (A) the execution,
announcement or pendency of this Agreement or the Filing (including the effect of the foregoing
on the relationship with the customers, suppliers, landlords, employees, consultants or competitors
of Sellers or their respective Affiliates); provided that this clause (A) shall not apply to the
representations and warranties that, by their terms, specifically address the consequences arising
out of the pendency or consummation of the transactions contemplated herein; (B) actions or
omissions taken or not taken by or on behalf of Sellers or any of their Affiliates at the written
request of Buyer; (C) failure of Sellers or any of their Affiliates to meet any internal or published,
projections, forecasts, estimates or predictions (provided, that this clause (C) shall not prevent a
determination that any change, event, circumstance or effect underlying such failure has resulted
in a Material Adverse Effect, unless such change, event, circumstance or effect is otherwise
separately excepted by this definition); (D) changes or prospective changes in applicable Law or
GAAP, or changes or prospective changes in the interpretation or enforcement of any of the
foregoing, or any changes or prospective changes in general legal, regulatory or political
conditions, in each case, after the Effective Date; (E) volcanoes, tsunamis, effects of climate
change, earthquakes, floods, storms, hurricanes, tornadoes, fires, epidemics, pandemics, disease,
outbreak, public health crises or acts of god or natural disasters or man-made disasters, in each
case, including any direct or indirect consequence or condition thereof, including outbreaks or
additional waves of outbreaks of any contagious diseases (including influenza, COVID-19 or any
variation thereof); (F) general events or conditions generally affecting the industry, markets or
geographic areas in which the Business operates; (G) national or international political or social
conditions, including tariffs, riots, protests, the engagement by the United States or other country
in hostilities or the escalation thereof, whether or not pursuant to the declaration of a national
emergency or war, or the occurrence or the escalation of any military, cyber or terrorist (whether
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or not state-sponsored) attack upon the United States or any other country, or any of its territories,
possessions, or diplomatic or consular offices or upon any military installation, asset, equipment
or personnel of the United States or of any other country; (H) financial, banking, or securities
markets; (I) (1) the commencement or pendency of the Bankruptcy Cases; (2) any objections in
the Bankruptcy Court to (w) this Agreement or any of the transactions contemplated hereby, (x) the
Sale Order or the reorganization or liquidation of Sellers, (y) the Expense Reimbursement or
Breakup Fee, or (z) the assumption or rejection of any Transferred Contract; or (3) any Order of
the Bankruptcy Court or any actions or omissions of Sellers in compliance therewith; provided,
however, that, in the case of clauses (D) through (H), such events, changes, conditions,
circumstances, developments or effects shall be taken into account in determining whether any
such material adverse effect has occurred to the extent that any such events, changes, conditions,
circumstances, developments or effects have a disproportionate adverse change on the Acquired
Assets and the Assumed Liabilities, taken as a whole, relative to similar assets and liabilities, in a
similar industry or market.
“Material Contract” shall have the meaning set forth in Section 5.5(a).
“Mobile Platform” means all consoles, certificates, profiles, identifiers, files, keys, API,
and any other information, documentation or materials necessary or useful for maintaining user
accessibility to the mobile Software applications made available through the Apple App Store or
the Google Play Store by or on behalf of Sellers in connection with the Business, solely as
necessary or useful for Buyer to provide notice and redirection to users through such application
in a manner controlled by Buyer at and following Closing, together with (i) all administrator
usernames, passwords and credentials used to access, use, manage, maintain or renew such
consoles, certificates, profiles, identifiers, files or keys, and (ii) all site maps, templates, style
guides, design materials and content (including any text, fonts, colors, cascading style sheets
(CSS), layouts, video, images and graphics) with respect thereto or made available thereon.
“Order” means any order, injunction, order, judgment, decree, ruling, writ, assessment or
arbitration award of a Governmental Authority, including any order entered by the Bankruptcy
Court in the Bankruptcy Cases (including the Sale Order).
“Ordinary Course” means the ordinary and usual course of operations of the Business taken
as a whole consistent with past practice and taking into account the contemplation, commencement
and pendency of the Bankruptcy Cases.
“Outside Date” shall have the meaning set forth in Section 10.1(c).
“Party” or “Parties” means, individually or collectively, Buyer and Sellers.
“Paying Party” shall have the meaning set forth in Section 11.3.
“Periodic Taxes” shall have the meaning set forth in Section 11.2.
“Permits” means licenses, permits, approvals, certificates, authorizations, testing

certifications, testing reports, compliance results, operating permits, registrations, Orders,
variances, plans, exemptions and other similar documents and authorizations, required under any
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applicable Laws for the operation of the Business, and issued by or obtained from any
“Permitted Encumbrances” means (i) non-monetary encumbrances or non-monetary

impediments against any of the Acquired Assets which do not, individually or in the aggregate,
adversely affect the operation of the Acquired Assets, (ii) licenses (other than licenses of
Trademarks) granted on a non-exclusive basis, (iii) any Encumbrances set forth on Section 1.1(a)
of the Disclosure Schedules, and (iv) solely prior to Closing, any Encumbrances that will be
removed or released by operation of the Sale Order.
“Person” means an individual, corporation, partnership, limited liability company, joint

venture, association, trust, unincorporated organization, labor union, organization, estate,
Governmental Authority or other entity or group.
“Personal Information” means, in addition to any information protected under Sellers’

published privacy policies or applicable Laws concerning privacy or data security as “personal
information,” “personally identifiable information,” “PII” or similar, any information that
identifies or could reasonably be used to identify an individual, including an individual’s name,
address, telephone number, fax number, email address, social security number or other identifier
issued by a Governmental Authority (including any state identification number, driver’s license
number, or passport number), geolocation information of an individual or device, biometric data,
medical or health information, credit card or other financial information (including bank account
information), cookie identifiers, or any other browser- or device-specific number or identifier, or
any web or mobile browsing or usage information that is linked to the foregoing.
“Post-Closing Tax Period” means any Tax period beginning after the Closing Date and, in
the case of any Straddle Period, the portion of such Straddle Period beginning after the Closing
Date.
“Pre-Closing Tax Period” means any Tax period ending on or before the Closing Date and,
in the case of any Straddle Period, the portion of such Straddle Period ending on the Closing Date.
“Proceeding” means any Claim, action, complaint, suit, litigation, arbitration, appeal,
petition, inquiry, hearing, Order, decree, legal proceeding, investigation, or other legal dispute,
whether civil, criminal, administrative or otherwise, at law or in equity, by or before any
“Projections” shall have the meaning set forth in Section 8.15(b).
“Proposed Allocation” shall have the meaning set forth in Section 3.6(a).
“Purchase Price” shall have the meaning set forth in Section 3.1.
“Registered Business IP” shall have the meaning set forth in Section 5.8(a).
“Reimbursing Party” shall have the meaning set forth in Section 11.3.
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“Representative” means, with respect to a particular Person, any director, officer,

employee, agent, consultant, advisor, or other representative of such Person, including legal
counsel, accountants, and financial advisors.
“Sale Order” means an Order of the Bankruptcy Court approving this Agreement and the
transactions contemplated hereby, which Order shall be in the form attached hereto as Exhibit A,
with such changes as may be consented to by Buyer (which consent shall not be unreasonably
withheld, conditioned or delayed) or as the Parties may mutually agree.
“Seller” or “Sellers” shall have the meaning set forth in the Preamble.
“Seller Parties” means each Seller and its former, current, or future Affiliates, officers,
directors, employees, partners, members, equityholders, controlling or controlled Persons,
managers, agents, Advisors, successors or permitted assigns.
“Social Media Accounts” means the social media profiles, accounts, addresses and handles
(including those made available through Facebook, Twitter, YouTube, Pinterest, Instagram,
Snapchat, TikTok, Foursquare, Tumblr, Spotify and similar platforms).
“Software” means all software, software platforms, computer programs, operating systems,
applications, firmware, and other code, including all related source code, object code, application
programming interfaces, data files, databases, protocols, specifications, and all documentation
relating to any of the foregoing.
“Straddle Period” means any Tax period that includes, but does not end on, the Closing
Date.
“Subsidiary” means, with respect to any Person, any corporation, limited liability company
or other entity of which a majority of the total voting power of shares of stock or other equity
interests entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees or other governing body or Person thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such
Person or a combination thereof or any partnership, association or other business entity of which
a majority of the partnership or other similar ownership interest is at the time owned or controlled,
directly or indirectly, by such Person or one or more Subsidiaries of such Person or a combination
thereof.
“Successful Bidder” shall have the meaning set forth in Section 7.1(c).
“Tax” or “Taxes” means any federal, state, provincial, local, municipal, foreign or other
taxes, duties, levies, governmental charges or assessments in the nature of a tax, including all
income, alternative, minimum, add-on minimum, accumulated earnings, personal holding
company, franchise, capital stock, net worth, capital gains, profits, intangibles, windfall profits,
gross receipts, value added, sales, use, goods and services, excise, customs duties, escheat, transfer,
conveyance, mortgage, registration, stamp, documentary, recording, premium, severance,
production, environmental, natural resources, real property, personal property, ad valorem,
intangibles, rent, occupancy, license, occupational, employment, unemployment, social security
(or similar), disability, workers’ compensation, payroll, health care, withholding, estimated or
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other taxes, duties, levies or other governmental charges or assessments in the nature of a tax or
deficiencies thereof (including all interest and penalties thereon and additions thereto).
“Tax Consideration” shall have the meaning set forth in Section 3.6(a).
“Tax Proceeding” means any audit, examination, contest, litigation or other Proceeding by
or against any taxing authority or otherwise with respect to or relating to Taxes.
“Tax Return” means any return, claim for refund, declaration, election, notice, report,
statement or information return or other similar document relating to Taxes filed or required to be
filed with a Governmental Authority, including any schedule or attachment thereto, and including
any amendments thereof.
“Trademarks” shall have the meaning set forth in the definition of Intellectual Property.
“Transaction Documents” means this Agreement, the Assignment and Assumption

Agreement, the intellectual property assignment agreement contemplated by Section 4.3(a), the
Escrow Agreement and any other agreements, instruments or documents entered into pursuant to
this Agreement.
“Transfer Taxes” shall have the meaning set forth in Section 11.1.
“Transferred Contracts” shall have the meaning set forth in Section 2.1(e).
“Willful Breach” shall mean (a) Fraud or (b) a deliberate act or a deliberate failure to act,
in each case, in breach of a covenant set forth in this Agreement, regardless of whether breaching
was the conscious object of the act or failure to act.
Section 1.2 Other Definitions and Interpretive Matters.
(a) Unless otherwise indicated to the contrary in this Agreement by the context
or use thereof:
(i) When calculating the period of time before which, within which or
following which any act is to be done or step taken pursuant to this Agreement, the date
that is the reference date in calculating such period shall be excluded. If the last day of such
period is a day other than a Business Day, the period in question shall end on the next
succeeding Business Day.
(ii) Any reference in this Agreement to $ means U.S. dollars.
(iii) Unless the context otherwise requires, all capitalized terms used in
the Exhibits and Disclosure Schedules shall have the respective meanings assigned in this
Agreement. No reference to or disclosure of any item or other matter in the Exhibits and
Disclosure Schedules shall be construed as an admission or indication that such item or
other matter is material or that such item or other matter is required to be referred to or
disclosed in the Exhibits and Disclosure Schedules. No disclosure in the Exhibits and
Disclosure Schedules relating to any possible breach or violation of any Contract or Law
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shall be construed as an admission or indication that any such breach or violation exists or
has actually occurred. Any information, item or other disclosure set forth in any Schedule
shall be deemed to have been set forth in all other applicable Disclosure Schedules if the
relevance of such disclosure to such other Schedule is reasonably apparent from the facts
specified in such disclosure. All Exhibits and Disclosure Schedules attached or annexed
hereto or referred to herein are hereby incorporated in and made a part of this Agreement
as if set forth in full herein.
(iv) Any reference in this Agreement to gender includes all genders, and
words importing the singular number also include the plural and vice versa.
(v) The provision of a table of contents, the division of this Agreement

into Articles, Sections and other subdivisions and the insertion of headings are for
convenience of reference only and shall not affect or be utilized in the construction or
interpretation of this Agreement. All references in this Agreement to any “Section,”
“Article,” “Schedule,” or “Exhibit” are to the corresponding Section, Article, Schedule, or
Exhibit of or to this Agreement unless otherwise specified.
(vi) Words such as “herein,” “hereof” and “hereunder” refer to this

Agreement as whole and not merely to a subdivision in which such words appear, unless
the context otherwise requires.
(vii) The word “extent” and the phrase “to the extent” when used in this
Agreement shall mean the degree to which a subject or other thing extends, and such word
or phrase shall not merely mean “if.”
(viii) The word “including” or any variation thereof means “including,

without limitation,” and shall not be construed to limit any general statement that it follows
to the specific or similar items or matters immediately following it.
(ix) The word “will” will be construed to have the same meaning and
effect as the word “shall”. The words “shall,” “will,” or “agree(s)” are mandatory, and
“may” is permissive.
(x) All references to a day or days will be deemed to refer to a calendar

day or calendar days, as applicable, unless otherwise specifically provided.
(xi) Any document or item will be deemed “conveyed”, “delivered,”

“provided” or “made available” by Sellers, within the meaning of this Agreement if such
document or item is (A) included in the Dataroom or (B) actually delivered or provided to
Buyer or any of Buyer’s Advisors.
(xii) Any reference to any agreement or Contract will be a reference to

such agreement or Contract, as amended, modified, supplemented or waived.
(xiii) Any reference to any particular Bankruptcy Code or Tax Code

section or any Law will be interpreted to include any amendment to, revision of or
successor to that section or Law regardless of how it is numbered or classified; provided
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that, for the purposes of the representations and warranties set forth herein, with respect to
any violation of or non-compliance with, or alleged violation of or non-compliance, with
any Bankruptcy Code or Tax Code section or Law, the reference to such Bankruptcy Code
or Tax Code section or Law means such Bankruptcy Code or Tax Code section or Law as
in effect at the time of such violation or non-compliance or alleged violation or non-
compliance.
(xiv) A reference to a Person in a particular capacity excludes such Person

in any other capacity or individually.
(xv) Any reference to (x) any representations or warranties of a Seller

that is not party to this Agreement shall be interpreted as a representation or warranty of
BBBY on behalf of such Seller and (y) any covenant or obligation of a Seller that is not
party to this Agreement shall be interpreted as a covenant and obligation of BBBY to cause
such Seller to act in accordance therewith and (z) any notice to, or consent from, any Seller
that is not a party to this Agreement shall, with respect to matters related to this Agreement,
be interpreted as a notice to, or consent from, BBBY.
(b) No Strict Construction. Buyer, on the one hand, and Sellers, on the other
hand, participated jointly in the negotiation and drafting of this Agreement, and, in the event an
ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly
drafted by Buyer, on the one hand, and Sellers, on the other hand, and no presumption or burden
of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision
of this Agreement. Without limitation as to the foregoing, no rule of strict construction construing
ambiguities against the draftsperson shall be applied against any Person with respect to this
Agreement.
ARTICLE II
PURCHASE AND SALE
Section 2.1 Purchase and Sale of the Acquired Assets. Pursuant to sections 105, 363,
and 365 of the Bankruptcy Code, on the terms and subject to the conditions set forth herein and in
the Sale Order, at the Closing, Sellers shall sell, transfer, assign and convey to Buyer, or cause to
be sold, transferred, assigned and conveyed to Buyer (or its designee), and Buyer (or its designee)
shall purchase, acquire and accept from Sellers all of Sellers’ right, title and interest as of the
Closing in, to or under the following assets (collectively, the “Acquired Assets”) free and clear of
any and all Encumbrances of any and every kind, nature and description, other than Permitted
Encumbrances:
(a) all Business IP, and any goodwill associated therewith, together with all
rights to collect royalties and other proceeds and payments in connection with any of the foregoing,
and all rights to sue and recover for any past, present or future infringement, dilution,
misappropriation or other violation of any such Business IP;
(b) the Business Internet Properties;
(c) the Mobile Platform;
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(d) all Business Data;
(e) all Contracts listed on Section 2.1(e) of the Disclosure Schedules or

designated as Transferred Contracts pursuant to Section 2.7 (the “Transferred Contracts”);
(f) all rights of publicity, personality rights and similar rights primarily relating
to, used in (or held for use in) or arising out of, the sale or marketing of any products or services
of the Business;
(g) all advertising and marketing materials, samples, artwork, photography,

images, videos, copy, catalogues, labels, brand books, style guides, retailer presentations,
drawings, recordings and similar material, and any other material showing the heritage of any
Trademarks, in each case primarily relating to, used in (or held for use in) or arising out of the
Business;
(h) all transferrable rights (but not any obligations) of Sellers under non-
disclosure or confidentiality, non-compete, or non-solicitation Contracts relating to any other
Acquired Asset referenced in this Section 2.1;
(i) any other assets, properties, and rights listed on Section 2.1(i) of the
Disclosure Schedules.
Section 2.2 Excluded Assets. Notwithstanding anything herein to the contrary, Buyer
shall acquire no right, title, or interest in, to or under the following assets, properties, rights,
interests, or claims in any assets, properties, rights, interests or claims of any kind or description
of any Seller that are not Acquired Assets (collectively, the “Excluded Assets”), including:
(a) the Excluded Trademarks;
(b) the Internet Properties listed on Section 2.2(b) of the Disclosure Schedules;
(c) the Excluded Software; and
(d) the Contracts listed on Section 2.2(d) of the Disclosure Schedules or

otherwise designated as Excluded Listed Contracts pursuant to Section 2.7 (the “Excluded Listed
Contracts”).
Section 2.3 Shared Assets. To the extent that any elements of the Business Data or the
Business IP (excluding Trademarks (other than trade dress)) embodied in the content or website
(including the design, style, look, and feel of such content and website) made available on or
through the Business Internet Properties are used in or arise out of the Business and also are used
in or arise out of the Excluded Business (such Business Data and Business IP (excluding
Trademarks (other than trade dress)), “Shared IP”), (a) Sellers and Buyer shall each be a joint
owner of the Shared IP, (b) without limiting any obligation to deliver, transfer and convey copies
of Shared IP, only an undivided joint ownership interest in or to the Shared IP shall be an Acquired
Asset, and (c) each of Sellers and Buyer shall have the right to use and license the Shared IP
without notice, consent or an accounting to the other Party (or its successors and assignees);
provided that, for the avoidance of doubt Shared IP, with respect to clauses (ii) and (iii) of the
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definition of Business Data, shall be limited to customer data and lists relating to customers that
have purchased from, or otherwise submitted their names or other information in accordance with
applicable privacy policies to, both the Business and Excluded Business.
Section 2.4 Assumed Liabilities. Upon the terms and subject to the conditions of this
Agreement, at the Closing, Buyer shall assume and agree to perform and discharge, when due (in
accordance with their respective terms and subject to the respective conditions thereof), the
following Liabilities (collectively, the “Assumed Liabilities”):
(a) all Liabilities and obligations of any Seller under the Transferred Contracts
that become due from and after, solely to the extent relating to facts, occurrences or other
circumstances first arising after, the Closing (or, if assigned to Buyer after the Closing, the
assignment date related to such Transferred Contracts);
(b) all Liabilities arising from the ownership of the Acquired Assets and the use
thereof by Buyer solely to the extent arising after the Closing; and
(c) all Cure Costs (but not any Excess Cure Costs) related to the assignment
and assumption of the Transferred Contracts.
For the avoidance of doubt, Excluded Taxes shall not constitute Assumed Liabilities.
Section 2.5 Excluded Liabilities. Notwithstanding any provision in this Agreement to

the contrary, Buyer shall not assume and shall not be obligated to assume or be obliged to pay,
perform, or otherwise discharge, and Sellers shall be solely and exclusively liable with respect to,
any Liability of any Seller that is not an Assumed Liability (including, for the avoidance of doubt,
all Excess Cure Costs) (such Liabilities, collectively, the “Excluded Liabilities”).
Section 2.6 Withholding. Notwithstanding anything in this Agreement to the contrary,

Buyer shall be entitled to deduct and withhold from any amounts otherwise payable pursuant to
this Agreement such amounts as are required to be deducted and withheld with respect to the
making of such payment under the Code or any other Tax Law. Prior to such deduction or
withholding (except any deduction or withholding required as a result of a failure to provide the
documentation pursuant to Section 4.3(f)), Buyer shall use commercially reasonable efforts to
provide Sellers written notice of such deduction or withholding and a reasonable opportunity to
provide forms or other evidence that would reduce or exempt such deduction or withholding under
applicable Law. To the extent that amounts are so deducted and withheld and paid to the
appropriate Governmental Authority, such amounts shall be treated for all purposes of this
Agreement as having been paid to the Person in respect of which such deduction and withholding
was made.
Section 2.7 Assignment of Contracts. The Sale Order shall, to the extent permitted by
Law, provide for the assignment by Sellers to Buyer, effective upon the Closing, of the Transferred
Contracts in accordance with this Section 2.7.
(a) Sellers shall use reasonable best efforts to provide timely and proper written
notice of the motion seeking entry of the Sale Order to all parties to any executory Contracts to
which any Seller is a party that are Transferred Contracts and take all other actions reasonably
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necessary to cause such Contracts to be assigned to Buyer pursuant to section 365 of the
Bankruptcy Code. At the Closing, Sellers shall assign to Buyer the Transferred Contracts that may
be assigned by any such Seller to Buyer pursuant to sections 363 and 365 of the Bankruptcy Code.
From and after the Effective Date until the earlier of (y) the date that is 45 days following the
Closing and (z) the date on which the Bankruptcy Court enters an Order confirming Sellers’ plan
of reorganization or liquidation (this clause (z) the “Plan Confirmation Date”), Buyer may, in
consultation with Sellers, propose to designate any Contract then in effect that Sellers have not
otherwise disposed of, or agreed to dispose of, that is necessary to administer, control and exercise
legal rights with respect to the use of all other Acquired Assets, in each case, in the same manner
in all material respects as by and on behalf of Sellers (as applicable) in connection with the
Business during the twelve months prior to the date hereof (and is not an Excluded Listed Contract
as of the Effective Date), as a Transferred Contract, as applicable, or designate any such Contract
that would otherwise be a Transferred Contract as an Excluded Listed Contract, in each case by
providing written notice of such designation or removal to Sellers and, in the case of designating
an additional Transferred Contract, Sellers will use reasonable best efforts to cause such Contract
to be assumed and assigned to Buyer in accordance with the Bankruptcy Code. Notwithstanding
the foregoing, (i) Sellers may not designate any such Contract as a Transferred Contract after
Closing if Sellers have rejected, agreed to dispose, or disposed, of such Contract or require such
Contract in order to provide services to any other business line of Sellers or to wind down the
operations of Sellers and (ii) Sellers shall provide not less than five Business Days’ notice to Buyer
prior to filing any motion to reject, agreeing to dispose or disposing any Contract that is necessary
to administer, control and exercise legal rights with respect to the use of all other Acquired Assets,
in each case, in the same manner in all material respects as by and on behalf of Sellers (as
applicable) in connection with the Business during the twelve months prior to the date hereof (other
than any Excluded Listed Contract).
(b) In the case of any removal or addition of a Transferred Contract pursuant to

Section 2.7(a), Sellers shall give notice to the other parties to any Contract to which such removal
or addition relates within three Business Days of Buyer notifying Sellers of such removal or
addition.
(c) In connection with and upon the assignment to Buyer of any Transferred
Contract pursuant to this Section 2.7, Buyer and Sellers shall pay all of the Cure Costs consistent
with the allocation of Assumed Liabilities and Excluded Liabilities set forth in Section 2.4(c) and
Section 2.5.
(d) If Sellers are unable to assign any Transferred Contract to Buyer as a result
of an Order of the Bankruptcy Court or applicable Law, then Buyer and Sellers shall use reasonable
best efforts prior to the Closing to obtain, and to cooperate in obtaining, all Consents and
Governmental Authorizations from Governmental Authorities and third parties necessary to assign
such Transferred Contract to Buyer; provided, however, neither Buyer nor Sellers shall be required
to pay any amount or incur any obligation to any Person from whom any such Consent or
Governmental Authorization may be required in order to obtain such Consent.
(e) Notwithstanding any provision herein to the contrary, a Contract shall not
be a Transferred Contract hereunder and shall not be assigned by the applicable Sellers and
assumed by Buyer to the extent that such Contract requires a Consent or Governmental
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Authorization (other than, and in addition to, that of the Bankruptcy Court) in order to permit the
sale or transfer to Buyer of Sellers’ rights under such Contract, if such Consent or Governmental
Authorization has not been obtained prior to the Closing. In such event, the Closing will proceed
with respect to the remaining Acquired Assets upon the terms and subject to the conditions hereof,
and there will be no reduction in the Purchase Price as a result thereof, and, for a period of six
months after the Closing Date (or the remaining term of any such Contract if shorter or the closing
of the Bankruptcy Cases, if earlier), (i) Sellers and Buyer will use their respective reasonable best
efforts to obtain the Consents with respect to any such Contract and (ii) Sellers and Buyer will
cooperate in a mutually agreeable arrangement, to the extent feasible and without the need for any
Consent, under which Buyer would obtain the benefits and assume the obligations associated with
such Contracts in accordance with this Agreement, including subcontracting, sub-licensing, or sub-
leasing to Buyer, or under which Sellers would enforce their rights thereunder for the benefit of
Buyer with Buyer assuming each applicable Sellers’ obligations thereunder; provided, however,
neither Buyer nor Sellers shall be required to pay any amount, grant any accommodation therefor
or incur any obligation to any Person from whom any such Consent or Governmental
Authorization may be required in order to obtain such Consent; provided further that neither Buyer
nor any of Sellers will be obligated to initiate any Proceedings to obtain any such Consent or
Governmental Authorization. For the avoidance of doubt, the consummation of the transactions
contemplated by this Agreement shall in no way be contingent or conditioned on obtaining any
such Consents for the assignment of the Transferred Contracts.
ARTICLE III
PURCHASE PRICE
Section 3.1 Purchase Price. The purchase price (the “Purchase Price”) for the purchase,
sale, assignment and conveyance of Sellers’ right, title and interest in, to and under the Acquired
Assets shall consist of:
(a) cash in the amount of the Cash Consideration (subject, in the case of the
GoB Escrow Amount and the IP Escrow Amount to the terms and conditions with respect thereto);
and
(b) the assumption of the Assumed Liabilities.
Section 3.2 Deposit.
(a) Buyer has delivered, or will deliver within one Business Day of the
Effective Date, to the Deposit Escrow Agent the Deposit in immediately available funds pursuant
to the Bidding Procedures Order, by wire transfer of immediately available funds for deposit into
a separate, segregated, non-interest bearing escrow account maintained by the Deposit Escrow
Agent in accordance with the Bidding Procedures Order. The Deposit shall not be subject to any
lien, attachment, trustee process, or any other judicial process of any creditor of any Seller or Buyer
and shall be applied against payment of the Purchase Price on the Closing Date or otherwise
distributed or returned according to the terms of this Section 3.2.
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(b) If this Agreement has been terminated by Sellers pursuant to

Section 10.1(d) or Section 10.1(f), then Sellers shall retain the Deposit.
(c) If this Agreement has been terminated by any Party, other than as
contemplated by Section 3.2(b), then the Deposit shall be returned to Buyer within three Business
Days after such termination.
(d) The Parties agree that Sellers’ right to retain the Deposit, as set forth in
Section 3.2(b), is not a penalty, but rather is liquidated damages in a reasonable amount that will
compensate Sellers for their efforts and resources expended and the opportunities foregone while
negotiating this Agreement and in reliance on this Agreement and on the expectation of the
consummation of the transactions contemplated hereby, which amount would otherwise be
impossible to calculate with precision.
Section 3.3 Closing Date Payments. At the Closing, (a) Buyer shall pay to Sellers cash
by wire transfer of immediately available funds in an amount equal to (i) the Cash Consideration
minus (ii) the Deposit minus (iii) the GoB Escrow Amount minus (iv) the IP Escrow Amount and
(b) Sellers shall direct the Deposit Escrow Agent to indefeasibly transfer the Deposit to an account
designated by Sellers.
Section 3.4 Discharge of Assumed Liabilities After Closing. Following the Closing,
Buyer shall pay, perform or satisfy the Assumed Liabilities from time to time and as such Assumed
Liabilities become due and payable or are required to be performed or satisfied in accordance with
their respective terms.
Section 3.5 Release of Escrow Amounts.
(a) GoB Holdback Release. In the event that Sellers deliver to Buyer, prior to
the earlier of September 1, 2023 and the Plan Confirmation Date, a certificate, duly executed by
Sellers’ chief restructuring officer, in their capacity as such and not in a personal capacity,
certifying that (i) the Business web sites have removed any references to “liquidation sales,”
“going out of business,” “store closings” or similar messaging, (ii) that Sellers have ceased sending
emails to customers of the Business, and (iii) that liquidations of inventory and going out of
business sales at the brick and mortar stores of the Business have terminated (the “GoB
Certificate”), then, within three Business Days of Buyer’s receipt of the GoB Certificate, Buyer
and BBBY shall deliver Joint Instructions to the Escrow Agent instructing the Escrow Agent to
release, within three Business Days following such instruction, (A) the GoB Payout Amount to
Sellers and (B) to the extent the GoB Escrow Amount is greater than the GoB Payout Amount,
such excess amount to Buyer. In the event that Buyer has not received the GoB Certificate prior
to September 1, 2023 then, within three Business Days of September 1, 2023 Buyer and BBBY
shall deliver Joint Instructions to the Escrow Agent instructing the Escrow Agent to release, within
three Business Days following such instruction, the GoB Escrow Amount to Buyer.
(b) IP Release. In the event that Sellers satisfy the IP Condition, then, within
three Business Days of Sellers’ satisfaction of the IP Condition, Buyer and BBBY shall deliver
Joint Instructions to the Escrow Agent instructing the Escrow Agent to release, within three
Business Days following such instruction, the IP Escrow Amount to Sellers. In the event that the
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IP Condition has not been satisfied prior to September 30, 2023 then, within three Business Days
following September 30, 2023, Buyer and BBBY shall deliver Joint Instructions to the Escrow
Agent instructing the Escrow Agent to release, within three Business Days following such
instruction, the IP Escrow Amount to Buyer.
(c) Notwithstanding anything to the contrary contained herein or in the Escrow

Agreement, any amounts to be released from the Escrow Account pursuant to this Agreement or
the Escrow Agreement shall be released upon (and only upon) the receipt by the Escrow Agent of
Joint Instructions or a Final Determination. As used herein, (i) “Joint Instructions” means joint
written instruction to the Escrow Agent, signed by Buyer and BBBY, directing the Escrow Agent
to disburse all or a portion of the funds in the applicable Escrow Account, and (ii) “Final
Determination” means a final judgment, decree or order (for which purpose, a judgment, decree
or order of a court will be deemed final when the time for appeal, if any, will have expired and no
appeal will have been taken or when all appeals taken will have been finally determined) together
with the written payment instructions of the prevailing party to effectuate such order, in each case
provided to the Escrow Agent (with a copy provided to the other party).
Section 3.6 Allocation of Purchase Price.
(a) For U.S. federal (and where applicable, state and local) income Tax
purposes, the parties agree to allocate the Purchase Price, the Assumed Liabilities, and any other
amounts treated as consideration to any Seller in respect of the Acquired Assets pursuant to this
Agreement for U.S. federal (and where applicable, state and local) income Tax purposes
(collectively, the “Tax Consideration”) among the Acquired Assets in accordance with Section
1060 of the Code, pursuant to the following procedures. No later than 90 days following the
Closing Date, Buyer shall provide Sellers with a proposed allocation of the Tax Consideration
among the Acquired Assets (the “Proposed Allocation”). Sellers may object to the Proposed
Allocation by delivering to Buyer, within 30 days of receipt by Sellers of the Proposed Allocation,
notice of objection to the Proposed Allocation (an “Allocation Objection Notice”), which shall
specify in reasonable detail the basis for such objection. If Sellers fail to deliver an Allocation
Objection Notice to Buyer prior to the expiration of such 30-day period, the Proposed Allocation
shall become final, binding and conclusive upon Sellers and Buyer (the “Allocation”). If Sellers
timely deliver an Allocation Objection Notice, then Buyer and Sellers shall negotiate in good faith
to resolve the disputed items. If Buyer and Sellers are able to reach agreement on the disputed
items within 30 days after the Allocation Objection Notice has been received by Buyer, the
Proposed Allocation, as modified to reflect such agreement between Buyer and Sellers, shall be
the Allocation. If Buyer and Sellers are unable to reach such an agreement within 30 days after the
Allocation Objection Notice has been received by Buyer, all unresolved disputed items shall be
promptly referred to a mutually agreed, nationally recognized accounting firm (the “Independent
Arbiter”). The Independent Arbiter shall be directed to render a written report on the unresolved
disputed items with respect to the allocation of the Tax Consideration as promptly as practicable,
but in no event more than 30 days after such submission to the Independent Arbiter, and to resolve
only those unresolved disputed items set forth in the Allocation Objection Notice. For the
avoidance of doubt, the Independent Arbiter’s resolution of the disputed items shall be within the
ranges proposed by Buyer and Sellers that are in dispute. If unresolved disputed items are
submitted to the Independent Arbiter, Buyer and Sellers shall each furnish to the Independent
Arbiter such work papers, schedules and other documents and information relating to the
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unresolved disputed items as the Independent Arbiter may reasonably request. The resolution of
the disputed items by the Independent Arbiter shall be final, binding and conclusive upon Buyer
and Sellers. The Proposed Allocation, as modified to reflect (x) any agreement as to any disputed
items between Buyer and Sellers and (y) the resolution of the remaining disputed items by the
Independent Arbiter, shall be the Allocation. All fees and expenses of the Independent Arbiter
shall be allocated to Buyer and Sellers in the same proportion that the aggregate amount of the
items unsuccessfully disputed or defended, as the case may be, by each of Buyer and Sellers (as
determined by the Independent Arbiter) bears to the total amount of the disputed items.
(b) Except to the extent otherwise required pursuant to a “determination” within

the meaning of Section 1313(a) of the Code (or any similar provision of state, local or foreign
law), each of the parties (x) shall, and shall cause its Affiliates to, file all Tax Returns in a manner
consistent with the Allocation and (y) shall not take, and shall cause its Affiliates not to take, any
position inconsistent with the Allocation on any Tax Return, in connection with any Tax
Proceeding or otherwise.
ARTICLE IV
CLOSING
Section 4.1 Closing Date. The closing of the purchase and sale of the Acquired Assets,
the delivery of the Purchase Price, the assumption of the Assumed Liabilities and the
consummation of the other transactions contemplated by this Agreement (the “Closing”) will take
place by telephone conference and electronic exchange of documents (or, if the Parties agree to
hold a physical closing, at the offices of Kirkland & Ellis LLP, located at 601 Lexington Avenue,
New York, New York 10022) at 10:00 a.m. Eastern Time on the second Business Day following
full satisfaction or due waiver (by the Party entitled to the benefit of such condition) of the closing
conditions set forth in Article IX (other than conditions that by their terms or nature are to be
satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at the Closing),
or at such other place and time as the Parties may agree in writing. The date on which the Closing
actually occurs is referred to herein as the “Closing Date.”
Section 4.2 Buyer’s Deliveries. At the Closing, Buyer shall:
(a) deliver to Sellers the Cash Consideration minus the GoB Escrow Amount
minus the IP Escrow Amount minus the Deposit in accordance with Section 3.3(a);
(b) deposit to the Escrow Agent cash in an amount equal to the GoB Escrow
Amount plus the IP Escrow Amount, which amounts shall be held by the Escrow Agent pursuant
to the terms and conditions of this Agreement and the Escrow Agreement;
(c) deliver to Sellers a counterpart to the Escrow Agreement duly executed by

Buyer;
(d) deliver to Sellers the certificate of Buyer to be received by Sellers pursuant

to Section 9.3(c); and
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(e) deliver to Sellers a counterpart to the bill of sale and assignment and
assumption agreement substantially in the form of Exhibit B (the “Assignment and Assumption
Agreement”) duly executed by Buyer.
Section 4.3 Sellers’ Deliveries. At the Closing, Sellers shall deliver to Buyer:
(a) an intellectual property assignment agreement substantially in the form of

Exhibit C, duly executed by the applicable Sellers;
(b) a counterpart to the Assignment and Assumption Agreement, duly executed

by each applicable Seller;
(c) a counterpart to the Escrow Agreement, duly executed by BBBY and the
Escrow Agent;
(d) a copy of the Sale Order entered by the Bankruptcy Court;
(e) the certificate of Sellers to be received by Buyer pursuant to Section 9.2(c);

and
(f) an IRS Form W-9 or IRS Form W-8, as applicable, duly executed by each
Seller or each Seller’s regarded owner for U.S. federal income Tax purposes.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLERS
Except as set forth in the Disclosure Schedules delivered by Sellers concurrently herewith
and subject to Section 12.10, Sellers jointly and severally represent and warrant to Buyer as
follows.
Section 5.1 Organization and Qualification. Each Seller is duly formed, validly existing
and in good standing under the laws of the state of its incorporation or formation and has all
requisite power and authority necessary to carry on its business as it is now being conducted,
except (other than with respect to such Seller’s due formation and valid existence) as would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.2 Authorization of Agreement. The execution, delivery and performance by

each Seller of this Agreement and the other Transaction Documents to which such Seller is a party,
and the consummation by such Seller of the transactions contemplated hereby and thereby, subject
to requisite Bankruptcy Court approvals, have been duly authorized by all requisite corporate
action, limited liability company action or limited partnership action on the part of such Seller, as
applicable, and no other organizational proceedings on such Seller’s part are necessary to authorize
the execution, delivery and performance by such Seller of this Agreement or the other Transaction
Documents and the consummation by it of the transactions contemplated hereby and
thereby. Subject to requisite Bankruptcy Court approvals, this Agreement and the other
Transaction Documents to which each Seller is a party have been, or will be, duly executed and
delivered by such Seller and, assuming due authorization, execution and delivery hereof and
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thereof by the other parties hereto and thereto, constitutes, or will constitute, legal, valid and
binding obligations of such Seller, enforceable against such Seller in accordance with its and their
terms, except that such enforceability (a) may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar Laws of general application affecting or
relating to the enforcement of creditors’ rights generally and (b) is subject to general principles of
equity, whether considered in a proceeding at law or in equity (collectively, the “Enforceability
Exceptions”).
Section 5.3 Conflicts; Consents. Assuming that (a) requisite Bankruptcy Court
approvals are obtained, and (b) the notices, authorizations, approvals, Orders, Permits or consents
set forth on Section 5.3 of the Disclosure Schedules are made, given or obtained (as applicable),
neither the execution and delivery by Sellers of this Agreement or the other Transaction
Documents, nor the consummation by Sellers of the transactions contemplated hereby or thereby,
nor performance or compliance by Sellers with any of the terms or provisions hereof or thereof,
will (i) conflict with or violate any provision of a Seller’s certificate of incorporation or bylaws,
certificate of formation or limited liability company agreement, certificate of limited partnership,
partnership agreement or other governing documents, as applicable (ii) violate or constitute a
breach of or default (with or without notice or lapse of time, or both) under or give rise to a right
of termination, modification, or cancelation of any obligation or to the loss of any benefit, any of
the terms or provisions of any Material Contract or accelerate any Seller’s obligations under any
such Material Contract, or (iii) result in the creation of any Encumbrance (other than a Permitted
Encumbrance) on any properties or assets of any Seller, except, in the case of clauses (ii) and (iii),
as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
Section 5.4 Title to Properties.
(a) Subject to requisite Bankruptcy Court approvals, and assumption by the

applicable Seller of the applicable Contract in accordance with applicable Law (including
satisfaction of any applicable Cure Costs) and except as a result of the commencement of the
Bankruptcy Case, Sellers hold good title to, the right to use, or a valid leasehold interest in, all of
the Acquired Assets, free and clear of all Encumbrances, except for Permitted Encumbrances,
other than any failure to own or hold such tangible property that is not material to the Business,
taken as a whole.
Section 5.5 Contracts.
(a) Section 5.5 of the Disclosure Schedules sets forth a list of each Material
Contract as of the Effective Date. For purposes of this Agreement, “Material Contract” means any
Contract (x) by which any of the Acquired Assets are bound or affected or (y) to which a Seller is
a party or by which it is bound that is related to, used in (or held for use in) or arise out of the
operation of the Acquired Assets, including any Contract:
(i) that is material to the Acquired Assets and relates to the Acquired
Assets, on the one hand, and the Excluded Business, on the other hand;
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(ii) involves the settlement or compromise of any Proceeding (whether

pending or threatened) (or series of related Proceedings) which (A) involve payments in
excess of $500,000 or (B) impose material restrictions on the use, enforcement or other
exploitation of any Acquired Assets;
(iii) that relates to the acquisition or disposition of any Acquired Asset

that is reasonably expected to involve payments in excess of $100,000;
(iv) pursuant to which any Seller (A) grants or receives any license,
sublicense, covenant not to assert, or similar right in or with respect to any (1) Business IP
or (2) rights to use or display content that is material to the Business and used or displayed
in connection with the Internet-based retail portion of the Business (excluding licenses,
sublicenses, covenants not to assert or similar rights granted to Sellers solely for the
development, use or maintenance of Excluded Software or information technology
infrastructure), or (B) otherwise agrees to limit the use, enforcement or other exploitation
of any Business IP, in each case, other than ancillary or incidental licenses, sublicenses,
covenants not to assert and similar rights that are not material to the development,
maintenance, use or operation of any Acquired Assets; or
(v) that (x), is set forth on Section 2.1(e) of the Disclosure Schedules
and contains any provision that (A) limits in any material respect, or purports to limit in
any material respect, the ability, upon the consummation of the transactions contemplated
hereby, of Buyer or any of its Affiliates from competing with any Person or in any
geographical area, engaging in any line of business or selling products or delivering
services to any Person, making use of any Business IP or soliciting potential employees,
officers, managers, directors or customers, (B) grants “most favored nation” status or
contains “exclusivity” requirements or similar obligations binding, upon the consummation
of the transactions contemplated hereby, on Buyer or any of its Affiliates, (C) includes
“take or pay” requirements or provisions obligating a Person to obtain or provide a
minimum quantity of goods or services to or from another Person, or (y) that contains any
provision that grants to a third party any right of first refusal or first offer or similar right
with respect to any of the Acquired Assets.
(b) Subject to requisite Bankruptcy Court approvals, and assumption by the

applicable Seller of the applicable Contract in accordance with applicable Law (including
satisfaction of any applicable Cure Costs) and except (i) as a result of the commencement of the
Bankruptcy Cases and (ii) with respect to any Contract that has previously expired in accordance
with its terms, been terminated, restated, or replaced, (A) each Material Contract is valid and
binding on the Seller that is a party thereto and, to the Knowledge of Sellers, each other party
thereto, and is in full force and effect, subject to the Enforceability Exceptions, (B) the applicable
Seller, and, to the Knowledge of Sellers, any other party thereto, have performed all obligations
required to be performed by it under each Material Contract, (C) Sellers have received no written
notice of the existence of any breach or default on the part of any Seller under any Material
Contract, (D) there are no events or conditions which constitute, or, after notice or lapse of time or
both, will constitute a default on the part of a Seller, or to the Knowledge of Sellers, any
counterparty under such Material Contract and (E) to the Knowledge of Sellers, Sellers have not
received any written notice from any Person that such Person intends to terminate, or not renew,
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any Material Contract, except in each case of clauses (A) through (E), as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.6 No Litigation. There are no Proceedings pending or, to Sellers’ Knowledge,
threatened against or affecting any Seller that will adversely affect any Seller’s performance of its
obligations under this Agreement or the consummation of the transactions contemplated by this
Agreement.
Section 5.7 Permits; Compliance with Laws. Each Seller is, and has been since
January 1, 2023, in compliance in all material respects with all state or federal laws, statutes,
ordinances, codes, rules or regulations (“Laws”) or Orders, applicable to such Seller, and each
Seller holds all licenses, franchises, permits, certificates, approvals and authorizations from
Governmental Authorities necessary for the lawful conduct of its respective business (collectively,
“Permits”), except where the failure to hold the same would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Each Seller and each of their respective
directors, officers and employees acting in such capacity and, to the Knowledge of Sellers, each
of its and their other agents acting on its or their behalf, is, and has been since January 1, 2023, in
compliance in all material respects with the Foreign Corrupt Practices Act of 1977 and any rules
and regulations promulgated thereunder.
Section 5.8 Intellectual Property.
(a) Section 5.8(a) of the Disclosure Schedules sets forth a correct and complete
list of all Business IP that is registered with, issued by, or the subject of a pending application
before any Governmental Authority or Internet domain name registrar (“Registered Business IP”),
specifying as to each, as applicable, the owner, application number, application date, patent
number or registration number, and date of registration or issuance. Except as otherwise indicated
on Section 5.8(a) of the Disclosure Schedules, (i) Sellers exclusively own all right, title and interest
in and to the Registered Business IP, free and clear of all Encumbrances (other than Permitted
Encumbrances), and (ii) all of the Registered Business IP is subsisting and, to the Knowledge of
Sellers, valid and enforceable. The Registered Business IP identified on Section 5.8(a) of the
Disclosure Schedules constitutes all Intellectual Property owned by or licensed exclusively to
Sellers or any of their Affiliates (x) that is registered with, issued by, or the subject of a pending
application before any Governmental Authority or Internet domain name registrar and (y) that is
primarily related or material to the operation of the Business as conducted during the twelve
months prior to the date hereof.
(b) Sellers have taken commercially reasonable steps and have implemented
commercially reasonable safeguards, in a manner consistent with industry standards, to maintain
the confidentiality of non-public Business IP and Business Data, and to the Knowledge of Sellers,
no such non-public Business IP or Business Data (including any source code constituting part of
the Business IP) have been disclosed to or accessed by any Person other than subject to written
and binding obligations of confidentiality, which obligations, to the Knowledge of Sellers, have
not been violated in any material respect. Sellers have taken commercially reasonable steps to
actively monitor and enforce their rights in all material Trademarks constituting part of the
Business IP against unauthorized use by third parties, and have exercised reasonable quality
control measures with respect to any licensees of such Trademarks.
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(c) No Proceedings are pending or, to the Knowledge of Sellers, threatened

against any Seller, and since January 1, 2021, Sellers have not received any written notice or claim,
(i) challenging the ownership, validity, enforceability or use by any Seller of any Registered
Business IP or (ii) alleging that any Seller is infringing, misappropriating or otherwise violating
the Intellectual Property of any Person. Since January 1, 2021, no Seller has made any written
claim of any violation, misappropriation or infringement of any Business IP.
(d) To the Knowledge of Sellers, since January 1, 2021, no Person has

infringed, misappropriated or otherwise violated the rights of Sellers with respect to any material
Business IP and the use of the Acquired Assets in connection with the conduct of the Business
(including the use of the Mobile Platform as intended to be used by customers) has not violated,
misappropriated or infringed the Intellectual Property of any other Person.
(e) The consummation of the transactions contemplated hereby will not result
in the grant of any right or license to any third party of any material Business IP.
(f) Sellers have taken commercially reasonable steps and have implemented
commercially reasonable safeguards, in a manner consistent with industry standards, to protect the
Business Data, Internet Properties and Mobile Platform from any unauthorized use, disclosure,
modification or access, and to ensure that the Acquired Assets are free from any disabling codes
or instructions, spyware, Trojan horses, worms, viruses or other Software routines that facilitate
or cause unauthorized access to, or disruption, impairment, disablement, or destruction of,
Software, data or other materials (“Malicious Code”).
(g) Since January 1, 2021, there has been no security breach or other
unauthorized use, disclosure, modification or access to the Acquired Assets or any Personal
Information or other sensitive customer information included in the Acquired Assets. To the
Knowledge of Sellers, the Acquired Assets are free from any material Malicious Code.
(h) Other than the Mobile Platform, there are no mobile Software applications
operated, developed or held for use by or on behalf of Sellers in connection with the Business.
(i) That certain First Amended and Restated Trademark License Agreement,
dated January 1, 2019, by and between Liberty Procurement Co. Inc. and Bed Bath & Beyond
Mexico S. de R.L. de C.V., (the “Mexico License”) has not been renewed beyond, and the term of
the Mexico License expires on or before, January 1, 2024.
Section 5.9 Data Security and Personal Information. Since January 1, 2021, with respect
to any Personal Information included within the Acquired Assets, (i) Sellers have implemented
and maintained commercially reasonable safeguards, including administrative, technical and
physical safeguards consistent with industry standards, that protect all Business Data (including
any Personal Information constituting part of the Business Data) against loss, damage, and
unauthorized access, use, modification, or other misuse, (ii) no Proceeding has been asserted or,
to the Knowledge of Sellers, are threatened against any Seller by any Person with respect to the
security, collection, processing or use of such Business Data, and (iii) Sellers have complied in all
material respect with all of their contractual obligations and published policies, and with all
applicable Laws, concerning any Personal Information constituting part of the Business Data. The
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consummation of the transactions contemplated by this Agreement, including the transfer of the
Acquired Assets to Buyer, shall not violate any of Sellers’ published policies, contractual
obligations, applicable Laws, or any other legally binding obligations concerning privacy or data
security, and no such published policies, applicable Laws or other legally binding obligations shall
prohibit or impair, in any material respect, Buyer’s receipt or use of any Business Data in a manner
substantially consistent with the manner as used in the Business during the twelve months prior to
Closing.
Section 5.10 Tax Matters.
(a) All material Tax Returns required to be filed with respect to the Acquired
Assets, the Assumed Liabilities or the Business have been duly and timely filed, and all such Tax
Returns are true, complete and accurate in all material respects.
(b) All material Taxes required to be paid with respect to the Acquired Assets,
the Assumed Liabilities or the Business (whether or not shown on any Tax Return) have been duly
and timely paid.
(c) Each Seller has timely and properly collected, withheld and paid over to the
appropriate Governmental Authority (or where such payment is not yet due, set aside in an account
for such purpose), all Taxes required to have been collected, withheld and paid over in connection
with amounts received or owed from or paid or owing to any employee, independent contractor,
creditor, stockholder, customer, or other third party, and has complied with all applicable
information reporting requirements, in each case, with respect to or in connection with the
Acquired Assets, the Assumed Liabilities or the Business.
(d) There is no Tax Proceeding pending or threatened in writing with respect to

or relating to the Acquired Assets or the Assumed Liabilities or the Business.
(e) None of the Acquired Assets constitutes stock, partnership interests, or any
other equity interest in any Person for U.S. federal income Tax purposes.
(f) There are no Encumbrances for Taxes on any of the Acquired Assets other
than Permitted Encumbrances.
(g) No Seller has received written notice of any material Tax deficiency
outstanding, proposed or assessed, nor has any Seller waived any statute of limitations in respect
of material Taxes or agreed to any extension of time with respect to a material Tax assessment,
collection or deficiency with respect to the Acquired Assets, the Assumed Liabilities or the
Business.
(h) Except to the extent that doing so would not adversely impact the Acquired
Assets, the Assumed Liabilities or the Business, or the Buyer’s ownership of the Acquired Assets,
or assumption of the Assumed Liabilities, none of Sellers has participated in any “listed
transaction” within the meaning of 26 C.F.R. § 1.6011-4(b)(2).
Section 5.11 Sufficiency. Except as set forth in Section 5.11 of the Disclosure Schedules,
except for Excluded Software and excluding licenses, sublicenses, covenants not to assert or
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similar rights granted to Sellers solely for the development, use or maintenance of Excluded
Software or information technology infrastructure, and except for any Excluded Listed Contracts
(including Contracts that are designated as Excluded Listed Contracts in accordance herewith after
the Effective Date), Sellers own or have, and will, pursuant to this Agreement, transfer to Buyer
at the Closing, sufficient assets, rights and information necessary to (i) administer and control the
operation of the Mobile Platform and Internet Properties, (ii) display any content (including any
text, fonts, colors, cascading style sheets (CSS), layouts, video, images and graphics) displayed on
any Business Internet Properties or the Mobile Platforms in the manner displayed in connection
with the Business during the twelve months prior to the date hereof, and (iii) otherwise administer,
control and use all other Acquired Assets, in each case, in a manner substantially consistent with
the manner, in all material respects, as by and on behalf of Sellers (as applicable) in connection
with the Business during the twelve months prior to the date hereof, free and clear of all
Encumbrances (other than Permitted Encumbrances), all of which rights and assets will survive
the consummation of the transactions contemplated under this Agreement materially unchanged
and without termination, cancellation or acceleration of any rights or payments in connection
therewith; provided that Buyer agrees that no representation is being made in this Agreement, and
Buyer is not relying on any representation whatsoever, in each case, with respect to Excluded
Software or the information technology infrastructure held or used in connection with the Business
(including “back-end” to the Mobile Platform or Business Internet Properties), inventory,
payments, transition services, or similar operational matters.
Section 5.12 Brokers. Except for Lazard, the fees and expenses of which will be paid by
Sellers, to the Knowledge of Sellers no broker, investment banker, financial advisor or other
Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission,
or the reimbursement of expenses in connection therewith, in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of Sellers.
Section 5.13 No Other Representations or Warranties. Except for the representations and
warranties expressly contained in this Article V (as qualified by the Disclosure Schedules and in
accordance with the express terms and conditions (including limitations and exclusions) of this
Agreement) (the “Express Representations”) (it being understood that Buyer relied only on such
express representations and warranties), Buyer acknowledges and agrees, on its own behalf and
on behalf of the Buyer Group, that the Acquired Assets are being acquired by Buyer “as is” and
“where is” and with all faults and all other representations, warranties and statements of any kind
or nature expressed or implied, whether in written, electronic or oral form, and that no Seller nor
any other Person on behalf of any Seller makes, and Buyer has not relied on, is not relying on, and
will not rely on (i) the accuracy or completeness of any express or implied representation or
warranty with respect to any Seller, the Acquired Assets, or the Assumed Liabilities or with respect
to any information, statements, disclosures, documents, projections, forecasts or other material of
any nature made available or provided by any Person (including in any presentations or other
materials prepared by Lazard) (the “Information Presentation”) or in that certain datasite
administered by Intralinks (the “Dataroom”) or elsewhere to Buyer or any of its Affiliates or
Advisors on behalf of Sellers or any of their Affiliates or Advisors, or (ii) any other statement
relating to the historical, current or future business, financial condition, results of operations,
assets, Liabilities, properties, Contracts, environmental compliance, employee matters, regulatory
compliance, business risks and prospects of any Seller, or the quality, quantity or condition of any
Seller’s assets. Without limiting the foregoing, no Seller nor any other Person will have or be
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subject to any Liability whatsoever to Buyer, or any other Person, resulting from the distribution
to Buyer or any of its Affiliates or Advisors, or Buyer’s or any of its Affiliates’ or Advisors’ use
of or reliance on, any such information, including the Information Presentation, the Projections,
any information, statements, disclosures, documents, projections, forecasts or other material made
available to Buyer or any of its Affiliates or Advisors in the Dataroom or otherwise in expectation
of the transactions contemplated by this Agreement or any discussions with respect to any of the
foregoing information.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Sellers as follows.
Section 6.1 Organization and Qualification. Buyer is a corporation duly formed, validly
existing and in good standing under the laws of the State of Delaware and has all requisite power
and authority necessary to carry on its business as it is now being conducted, except (other than
with respect to Buyer’s due formation and valid existence) as would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on Buyer’s ability to
consummate the transactions contemplated by this Agreement.
Section 6.2 Authorization of Agreement. Buyer has all necessary power and authority
to execute and deliver this Agreement and to perform its obligations hereunder and to consummate
the transactions contemplated hereby. The execution, delivery and performance by Buyer of this
Agreement, and the consummation by Buyer of the transactions contemplated hereby, subject to
requisite Bankruptcy Court approvals, have been duly authorized by all requisite corporate or
similar organizational action and no other corporate or similar organizational proceedings on its
part are necessary to authorize the execution, delivery and performance by Buyer of this
Agreement and the consummation by it of the transactions contemplated hereby. Subject to
requisite Bankruptcy Court approvals, this Agreement has been duly executed and delivered by
Buyer and, assuming due authorization, execution and delivery hereof by the other Parties,
constitutes a legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance
with its terms, except that such enforceability may be limited by the Enforceability Exceptions.
Section 6.3 Conflicts; Consents.
(a) Assuming that (i) requisite Bankruptcy Court approvals are obtained, and
(ii) the notices, authorizations, approvals, Orders, permits or consents set forth on Section 6.3(a)
of the Disclosure Schedules are made, given or obtained (as applicable), neither the execution and
delivery by Buyer of this Agreement, nor the consummation by Buyer of the transactions
contemplated hereby, nor performance or compliance by Buyer with any of the terms or provisions
hereof, will (A) conflict with or violate any provision of Buyer’s articles of incorporation or
bylaws or similar organizational documents, (B) violate any Law or Order applicable to Buyer,
(C) violate or constitute a breach of or default (with or without notice or lapse of time, or both)
under or give rise to a right of termination, modification, or cancelation of any obligation or to the
loss of any benefit, any of the terms or provisions of any loan or credit agreement or other Contract
to which Buyer is a party or accelerate Buyer’s obligations under any such Contract, or (D) result
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in the creation of any Encumbrance (other than a Permitted Encumbrance) on any properties or
assets of Buyer or any of its Subsidiaries, except, in the case of clauses (A) through (D), as would
not, individually or in the aggregate, reasonably be expected to prevent or materially impair, alter
or delay the ability of Buyer to consummate the transactions contemplated hereby.
(b) Buyer is not required to file, seek or obtain any notice, authorization,
approval, Order, permit or consent of or with any Governmental Authority in connection with the
execution, delivery and performance by Buyer of this Agreement or the consummation by Buyer
of the transactions contemplated hereby, except where failure to obtain such consent, approval,
authorization or action, or to make such filing or notification, would not, individually or in the
aggregate, reasonably be expected to prevent or materially impair, alter or delay the ability of
Buyer to consummate the transactions contemplated hereby.
Section 6.4 Financing. Buyer has, and will have at the Closing, sufficient funds in an
aggregate amount necessary to pay the Purchase Price, to perform the Assumed Liabilities as they
become due in accordance with their terms and to consummate all of the other transactions
contemplated by this Agreement, including the payment of the Purchase Price and all fees,
expenses of, and other amounts required to be paid by, Buyer in connection with the transactions
contemplated by this Agreement. Buyer is and shall be capable of satisfying the conditions
contained in sections 365(b)(1)(C) and 365(f) of the Bankruptcy Code with respect to the
Transferred Contracts and the related Assumed Liabilities.
Section 6.5 Brokers. Except for fees and expenses that will be borne solely by Buyer,
and fees and expenses connected to Buyer’s engagement letter with Guggenheim Securities, LLC,
there is no other investment banker, broker, finder, or other intermediary which has been retained
by or is authorized to act on behalf of Buyer that might be entitled to any fee or commission in
connection with the transactions contemplated by this Agreement.
Section 6.6 No Litigation. There are no Proceedings pending or, to Buyer’s knowledge,
threatened against or affecting Buyer except as would not, individually or in the aggregate,
reasonably be expected to prevent or materially impair, alter or delay the ability of Buyer to
consummate the transactions contemplated hereby.
Section 6.7 No Foreign Person. As of Closing, Buyer will not be a “foreign person,” as
defined in Section 721 of the U.S. Defense Production Act of 1950, including any implementing
regulations thereof.
Section 6.8 Solvency. Buyer is, and immediately after giving effect to the transactions
contemplated by this Agreement shall be, solvent and at all times shall: (a) be able to pay its debts
as they become due; (b) own property that has a fair saleable value greater than the amounts
required to pay its debt and (c) have adequate capital to carry on its business. No transfer of
property is being made and no obligation is being incurred in connection with the transactions
contemplated hereby with the intent to hinder, delay or defraud either present or future creditors
of Buyer or Sellers. In connection with the transactions contemplated hereby, Buyer has not
incurred, nor plans to incur, debts beyond its ability to pay as they become absolute and matured.
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Section 6.9 No Additional Representations or Warranties. Except for the

representations and warranties contained in this Article VI, Sellers acknowledge that neither Buyer
nor any other Person on behalf of Buyer makes any other express or implied representation or
warranty with respect to Buyer or with respect to any other information provided to Sellers by
Buyer.
ARTICLE VII
BANKRUPTCY COURT MATTERS
Section 7.1 Bankruptcy Actions.
(a) The bidding procedures to be employed with respect to this Agreement shall
be those reflected in the Bidding Procedures Order. Buyer agrees and acknowledges that Sellers,
including through their representatives, are and may continue soliciting inquiries, proposals or
offers from third parties in connection with any Alternative Transaction pursuant to the terms of
the Bidding Procedures Order.
(b) The Parties shall use their respective reasonable best efforts to obtain entry
by the Bankruptcy Court of the Sale Order. Buyer shall promptly take all actions as are reasonably
requested by Sellers to assist in obtaining the Bankruptcy Court’s entry of the Sale Order and any
other Order reasonably necessary in connection with the transactions contemplated by this
Agreement as promptly as practicable, including furnishing affidavits, financial information, or
other documents or information for filing with the Bankruptcy Court and making such employees
and Advisors of Buyer and its Affiliates available to testify before the Bankruptcy Court for the
purposes of, among other things, providing necessary assurances of performance by Buyer under
this Agreement and demonstrating that Buyer is a “good faith” purchaser under section 363(m) of
the Bankruptcy Code, as well as demonstrating Buyer’s ability to pay and perform or otherwise
satisfy any Assumed Liabilities following the Closing.
Each Seller and Buyer shall (i) appear formally or informally in the Bankruptcy Court if
reasonably requested by the other Party or required by the Bankruptcy Court in connection with
the transactions contemplated by this Agreement and (ii) keep the other reasonably apprised of the
status of material matters related to the Agreement, including, upon reasonable request promptly
furnishing the other with copies of notices or other communications received by Sellers from the
Bankruptcy Court with respect to the transactions contemplated by this Agreement.
(c) If an Auction is conducted, and Buyer is not the prevailing party at the
conclusion of such Auction (such prevailing party, the “Successful Bidder”) but has the next
highest (or otherwise best) bid at the Auction, Buyer shall be required to serve as a back-up bidder
(the “Backup Bidder”) and keep Buyer’s bid to consummate the transactions contemplated by this
Agreement on the terms and conditions set forth in this Agreement (as the same may be revised in
the Auction) open and irrevocable until the Outside Date. If prior to the Outside Date the
Successful Bidder fails to consummate the applicable Alternative Transaction as a result of a
breach or failure to perform on the part of such Successful Bidder, the Backup Bidder will be
deemed to have the new prevailing bid, and Sellers may, and may cause Buyer to, consummate
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the transactions contemplated by this Agreement on the terms and conditions set forth in this
Agreement (as the same may have been improved upon in the Auction).
(d) Sellers and Buyer acknowledge that this Agreement and the sale of the
Acquired Assets are subject to higher and better bids and Bankruptcy Court approval. Buyer
acknowledges that Sellers must take reasonable steps to demonstrate that they have sought to
obtain the highest or otherwise best price for the Acquired Assets, including giving notice thereof
to the creditors of Sellers and other interested parties, providing information about Sellers to
prospective bidders, entertaining higher and better offers from such prospective bidders, and, in
the event that additional qualified prospective bidders desire to bid for the Acquired Assets,
conducting an Auction.
(e) Buyer shall provide adequate assurance of future performance as required

under section 365 of the Bankruptcy Code for the Transferred Contracts. Buyer agrees that it will
take all actions reasonably required to assist in obtaining a Bankruptcy Court finding that there has
been an adequate demonstration of adequate assurance of future performance under the
Transferred Contracts, such as furnishing affidavits, non-confidential financial information and
other documents or information for filing with the Bankruptcy Court and making Buyer’s Advisors
available to testify before the Bankruptcy Court.
(f) After entry of the Sale Order, Sellers shall not take any action which is
intended to, or fail to take any action the intent of which failure to act is to, result in the reversal,
voiding, modification or staying of the Sale Order.
Section 7.2 Sale Order. The Sale Order shall, among other things, (a) approve, pursuant
to sections 105, 363 and 365 of the Bankruptcy Code, (i) the execution, delivery and performance
by Sellers of this Agreement, (ii) the sale of the Acquired Assets to Buyer on the terms set forth
herein and free and clear of all Encumbrances (other than Permitted Encumbrances), and (iii) the
performance by Sellers of their obligations under this Agreement, (b) authorize and empower
Sellers to assume and assign to Buyer the Transferred Contracts, (c) find that Buyer is a “good
faith” purchaser within the meaning of section 363(m) of the Bankruptcy Code, find that Buyer is
not a successor to any Seller, and grant Buyer the protections of section 363(m) of the Bankruptcy
Code, (d) find that Buyer shall have no Liability or responsibility for any Liability or other
obligation of any Seller arising under or related to the Acquired Assets other than as expressly set
forth in this Agreement, including successor or vicarious Liabilities of any kind or character,
including any theory of antitrust, environmental, successor, or transferee Liability, labor law, de
facto merger, or substantial continuity, (e) find that Buyer has provided adequate assurance (as
that term is used in section 365 of the Bankruptcy Code) of future performance in connection with
the assumption of the Transferred Contracts, (f) find that Buyer shall have no Liability for any
Excluded Liability, (g) find that the consideration provided by Buyer pursuant to this Agreement
constitutes reasonably equivalent value and fair consideration for the Acquired Assets, (h) find
that Buyer and Sellers did not engage in any conduct which would allow this Agreement to be set
aside pursuant to section 363(n) of the Bankruptcy Code and (i) order that, notwithstanding the
provisions of the Federal Rules of Bankruptcy Procedures 6004(h) and 6006(d), the Sale Order is
not stayed and is effective immediately upon entry. Buyer agrees that it will promptly take such
actions as are reasonably requested by any Seller to assist in obtaining Bankruptcy Court approval
of the Sale Order, including furnishing affidavits or other documents or information for filing with
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the Bankruptcy Court for purposes, among others, of (A) demonstrating that Buyer is a “good
faith” purchaser under section 363(m) of the Bankruptcy Code and (B) establishing adequate
assurance of future performance within the meaning of section 365 of the Bankruptcy Code.
Section 7.3 Approval. Sellers’ obligations under this Agreement and in connection with
the transactions contemplated hereby are subject to entry of and, to the extent entered, the terms
of any Orders of the Bankruptcy Court (including entry of the Sale Order). Nothing in this
Agreement shall require Sellers or their respective Affiliates to give testimony to or submit a
motion to the Bankruptcy Court that is untruthful or to violate any duty of candor or other fiduciary
duty to the Bankruptcy Court or its stakeholders.
ARTICLE VIII
COVENANTS AND AGREEMENTS
Section 8.1 Conduct of Business of Sellers.
(a) Except (i) as required by applicable Law, Order or a Governmental

Authority, (ii) any limitations on operations imposed by the Bankruptcy Court, (iii) as expressly
contemplated, required or permitted by this Agreement, (iv) to the extent related to an Excluded
Asset or an Excluded Liability or (v) as set forth on Section 8.1 of the Disclosure Schedules, during
the period from the date of this Agreement until the Closing (or such earlier date and time on which
this Agreement is terminated pursuant to Article X), unless Buyer otherwise consents in writing
(such consent not to be unreasonably withheld, conditioned or delayed), Sellers shall (x) use their
commercially reasonable efforts to continue to operate in the Ordinary Course.
(b) Except (A) as required by applicable Law, Order or a Governmental

Authority, (B) any limitations on operations imposed by the Bankruptcy Court or the Bankruptcy
Code, as the case may be, (C) as expressly contemplated, required or permitted by this Agreement,
(D) to the extent related to an Excluded Asset or an Excluded Liability or (E) as set forth on
Section 8.1 of the Disclosure Schedules, during the period from the Effective Date until the
Closing (or such earlier date and time on which this Agreement is terminated pursuant to
Article X), unless Buyer otherwise consents in writing (such consent not to be unreasonably
withheld, delayed or conditioned), Sellers shall not:
(i) sell, assign, license, lease (as lessor), transfer, abandon, fail to
maintain, allow to lapse or otherwise dispose of, or mortgage or pledge, or voluntarily
impose or suffer to be imposed any Encumbrance (other than Assumed Liabilities and any
Encumbrances that will be removed or released by operation of the Sale Order) on, any
Acquired Asset;
(ii) cancel or compromise any material claim or waive or release any

material right, in each case, that is a claim or right related to an Acquired Asset;
(iii) settle any pending or threatened Proceeding against any Seller that
would have an adverse effect on the Acquired Assets or result in an Assumed Liability; or
(iv) commit or agree to take any of, the foregoing actions.
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(c) Within one Business Day of the Effective Date, Sellers shall make the
changes to the home page of the Web site of the Business described on Section 8.1(c) of the
Disclosure Schedules.
(d) Nothing contained in this Agreement is intended to give Buyer or its

Affiliates, directly or indirectly, the right to control or direct any Seller’s operations or business
prior to the Closing, and nothing contained in this Agreement is intended to give any Seller,
directly or indirectly, the right to control or direct Buyer’s or its Subsidiaries’ operations. Prior to
the Closing, each of Buyer and Sellers shall exercise, consistent with the terms and conditions of
this Agreement, complete control and supervision over its and its Subsidiaries’ respective
operations.
Section 8.2 Access to Information.
(a) From the Effective Date until the Closing (or the earlier termination of this
Agreement pursuant to Article X), Sellers (in their discretion) will provide Buyer and its
authorized Advisors with reasonable access and upon reasonable advance notice and during
regular business hours to the books and records of Sellers, in order for Buyer and its authorized
Advisors to access such information regarding the Acquired Assets and the Assumed Liabilities
as is reasonably necessary in order to consummate the transactions contemplated by this
Agreement (including for integration purposes); provided that (i) such access does not
unreasonably interfere with the normal operations of any Seller, (ii) such access will occur in such
a manner as Sellers reasonably determine to be appropriate to protect the confidentiality of the
transactions contemplated by this Agreement, (iii) all requests for access will be directed to Lazard
or such other Person(s) as Sellers may designate in writing from time to time and (iv) nothing
herein will require Sellers to provide access to, or to disclose any information to, Buyer if such
access or disclosure (A) would cause significant competitive harm to any Seller if the transactions
contemplated by this Agreement are not consummated, (B) would require any Seller to disclose
any financial or proprietary information of or regarding the Affiliates of any Seller or otherwise
disclose information regarding the Affiliates of any Seller that such Seller deems to be
commercially sensitive, (C) would waive any legal privilege or (D) would be in violation of
applicable Laws; provided that Sellers shall use reasonable best efforts to provide the Buyer, to
the extent possible, with access to the relevant information in a manner that would not reasonably
be expected to violate the foregoing clauses (A) through (D).
(b) The information provided pursuant to this Section 8.2 will be used solely
for the purpose of consummating the transactions contemplated hereby (including for integration
planning), and will be governed by all the terms and conditions of the Confidentiality Agreement,
which Confidentiality Agreement shall not terminate upon the execution of this Agreement
notwithstanding anything to the contrary therein. Buyer will, and will cause its Advisors to, abide
by the terms of the Confidentiality Agreement with respect to such access and any information
furnished to Buyer or any of its Advisors. Sellers make no representation or warranty as to the
accuracy of any information, if any, provided pursuant to this Section 8.2, and Buyer may not rely
on the accuracy of any such information, in each case, other than the Express Representations.
(c) Sellers shall not, and shall cause their Affiliates and Advisors not to, for a
period of two years after the Closing, directly or indirectly, without Buyer’s prior written consent,
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use for any purpose (except as otherwise specifically permitted in this Agreement) or disclose to
any third party (other than each other and their respective Advisors) any confidential or proprietary
information concerning the Business, the Acquired Assets or the Assumed Liabilities (including
such information as may be disclosed to Sellers pursuant to the exercise of its rights to access
information following the Closing as set forth herein); provided that the foregoing restriction shall
not (i) apply to any information (A) generally available to, or known by, the public (other than as
a result of disclosure in violation of this Agreement), (B) independently developed by Sellers or
any of their respective Affiliates following the Closing without any reference to confidential or
proprietary information concerning the Business, or (C) becomes available to Sellers or any of
their respective Representatives from a third party if such source is not known by Sellers at the
time of the disclosure to be bound by a confidentiality agreement with, or other known contractual
or legal obligation of confidentiality to, Buyer with respect to such information, or (ii) prohibit any
disclosure (A) required by applicable Law so long as, to the extent practicable and legally
permissible, the applicable Seller provides Buyer with reasonable prior notice of such disclosure
and a reasonable opportunity (at Buyer’s sole cost and expense) to contest such disclosure, (B)
made in connection with the enforcement of any right or remedy relating to any of the Transaction
Documents or the transactions contemplated thereby, (C) necessary to permit Sellers or any of
their respective Affiliates to comply with their financial reporting, accounting or auditing
obligations with respect to any period ending before or including the Closing Date with respect to
the Business, the Excluded Assets or the Excluded Liabilities, or (D) necessary in connection with
the administration of the Bankruptcy Cases, the winding down of Sellers’ estate, the payment of
any Taxes or the filing of any Tax Returns or the recording of any claims in connection therewith.
(d) From and after the Closing for a period of two years following the Closing
Date (or, if later, the closing of the Bankruptcy Cases), Buyer will provide Sellers and their
Advisors with reasonable access, during normal business hours, and upon reasonable advance
notice, to the books and records, including work papers, schedules, memoranda, Tax Returns, Tax
schedules, Tax rulings, and other documents (for the purpose of examining and copying) relating
to the Acquired Assets, the Excluded Assets, the Assumed Liabilities or the Excluded Liabilities
with respect to periods or occurrences prior to or including the Closing Date, and reasonable
access, during normal business hours, and upon reasonable advance notice, to employees, officers,
Advisors, accountants, offices and properties of Buyer, in each case, solely to the extent (i)
necessary to permit Sellers or any of their respective Affiliates to comply with their financial
reporting, accounting or auditing obligations with respect to any period ending before or including
the Closing Date with respect to the Business, or the Excluded Assets or Excluded Liabilities,
(ii) as reasonably necessary for Sellers to comply with regulatory requirements under applicable
Law or otherwise in connection with tax, or regulatory matters or (iii) in connection with the
administration of the Bankruptcy Cases, the winding down of Sellers’ estate, the payment of any
Taxes or the recording of any claims in connection therewith. Unless otherwise consented to in
writing by Sellers, Buyer will use commercially reasonable efforts not to, for a period of
three years following the Closing Date, destroy, alter or otherwise dispose of any of such books
and records without first offering to surrender to Sellers such books and records or any portion
thereof that Buyer may intend to destroy, alter or dispose of. Notwithstanding anything to the
contrary in this Agreement, no Seller (or any Advisor thereof) shall be entitled to any Tax Return
(or copy thereof) of Buyer or any of its Affiliates.
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(e) Except in the ordinary course of business unrelated to the Business or the
transactions contemplated hereby, Buyer will not and will cause all its Advisors and Affiliates not
to contact any officer, manager, director, employee, customer, supplier, lessee, lessor, lender,
licensee, licensor, distributor, noteholder or other material business relation of any Seller prior to
the Closing with respect to any Seller, its business or the transactions contemplated by this
Agreement without the prior written consent of Sellers for each such contact (which consent shall
not be unreasonably withheld, conditioned or delayed).
Section 8.3 Reasonable Efforts; Cooperation. Subject to the other terms of this
Agreement, each Party shall, and shall cause its Advisors to, use its reasonable best efforts to
perform its obligations hereunder and to take, or cause to be taken, and do, or cause to be done, all
things necessary, proper or advisable to cause the transactions contemplated hereby to be effected
as soon as practicable, but in any event on or prior to the Outside Date, in accordance with the
terms hereof and to cooperate with each other Party and its Advisors in connection with any step
required to be taken as a part of its obligations hereunder.
Section 8.4 Further Assurances. From time to time, as and when requested by any Party
and at such requesting Party’s expense, any other Party will execute and deliver, or cause to be
executed and delivered, all such documents and instruments and will take, or cause to be taken, all
such further or other actions as such requesting Party may reasonably deem necessary or desirable
to evidence and effectuate the transactions contemplated by this Agreement. In furtherance and
not in limitation of the foregoing, in the event that any of the Acquired Assets shall not have been
conveyed at Closing, Sellers shall use reasonable best efforts to convey such Acquired Assets to
Buyer as promptly as practicable after the Closing. Notwithstanding anything in this Agreement
to the contrary, Buyer shall have the right, following the Closing, to enter into any contracts or
other commercial arrangements with respect to the Acquired Assets, including with existing or
prior vendors, suppliers and other counterparties of the Business and Sellers, and Sellers shall use
commercially reasonable efforts to cooperate with Buyer (at no cost or expense to Sellers, unless
such cost or expense is covered by Buyer) in connection with facilitating the foregoing.
Section 8.5 Insurance Matters. Buyer acknowledges that, upon Closing, all
nontransferable insurance coverage provided in relation to any Seller and the Acquired Assets that
is maintained by such Seller or its Affiliates (whether such policies are maintained with third party
insurers or with such Seller or its Affiliates) shall cease to provide any coverage to Buyer and the
Acquired Assets and no further coverage shall be available to Buyer or the Acquired Assets under
any such policies.
Section 8.6 Receipt of Misdirected Assets; Liabilities.
(a) From and after the Closing, if any Seller or any of its respective Affiliates
receives any right, property or asset that is an Acquired Asset, the applicable Seller shall promptly
transfer or cause such of its Affiliates to transfer such right, property or asset (and shall promptly
endorse and deliver any such asset that is received in the form of cash, checks or other documents)
to Buyer, and such asset will be deemed the property of Buyer held in trust by such Seller for
Buyer until so transferred. From and after the Closing, if Buyer or any of its Affiliates receives
any right, property or asset that is an Excluded Asset, Buyer shall promptly transfer or cause such
of its Affiliates to transfer such asset (and shall promptly endorse and deliver any such right,
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property or asset that is received in the form of cash, checks, or other documents) to the applicable
Seller, and such asset will be deemed the property of such Seller held in trust by Buyer for such
Seller until so transferred.
(b) From and after the Closing, if any Seller or any of its respective Affiliates
is subject to a Liability that should be the obligation of Buyer pursuant to the terms of this
Agreement, such Seller shall promptly transfer or cause such of its Affiliates to transfer such
Liability to Buyer, and Buyer shall assume and accept such Liability. From and after the Closing,
if Buyer or any of its Affiliates is subject to a Liability that should be the obligation of a Seller
pursuant to the terms of this Agreement, Buyer shall promptly transfer or cause such of its
Affiliates to transfer such Liability to the applicable Seller, and such Seller shall assume and accept
such Liability.
Section 8.7 Transitional Trademark License. To the extent any Excluded Trademarks
(or any Trademarks owned or sublicensable by any Seller Party) are displayed on or included in
any of the Acquired Assets as of the Closing, Sellers hereby grant to Buyer and its Affiliates a
limited, royalty-free, fully paid up, worldwide, non-exclusive license, solely for a period of three
months immediately following the Closing, to continue to use and display such Trademarks in a
manner substantially consistent with the manner already displayed on such Acquired Assets as of
the Closing.
Section 8.8 Transitional Welcome Marks License. Buyer hereby grants to Seller and its
Affiliates a limited, royalty-free, fully paid up, worldwide, non-exclusive license, solely until
September 30, 2023, to state that the rewards program of the Excluded Business will be changing
from “Welcome Rewards” to another name; provided that any such communication also includes
a reasonably clear statement that such “Welcome Rewards” earned at buybuyBaby are not
redeemable at bedbathandbeyond.com. Seller shall have the right to assign this license to the buyer
of all or any portion of the Excluded Business.
Section 8.9 Transitional Trademark License Back. To the extent any Trademarks
constituting Business IP are (a) displayed on any inventory owned by any Seller or its Affiliates
as of the Closing, or (b) otherwise used in connection with the Business as of the Closing, Buyer
hereby grants to each Seller and its Affiliates a limited, royalty-free, fully paid up, worldwide,
non-exclusive license, (i) with respect to (a), until the earlier of (x) July 31, 2023 or (y) the date
on which Sellers have exhausted or otherwise disposed of such existing inventory (such date the
“Commercialization End Date”), solely to continue to use and display such Trademarks on such
inventory and at the physical retail stores where such inventory is held as at Closing, in each case,
in a manner substantially consistent with the manner already displayed as of the Closing, (ii) with
respect to clauses (a) and (b), until the Commercialization End Date, subject to any limitations set
forth in Section 8.12 and Section 8.13, promote and market the sale and liquidation of inventory
in substantially the same manner as done by Sellers prior to the Closing, and (iii) with respect to
clause (b) until the earlier of September 30, 2023 or when such corporate wind-down activities are
complete (the “Wind-Down End Date”), solely in connection with the wind-down of Sellers’ and
their respective Affiliates’ remaining corporate (and not store) operations (provided that, for the
avoidance of doubt, such wind-down shall, following the Commercialization End Date, exclude
any sale, promotion, or commercialization of any consumer products or product inventory), but
may include the sale of non-product assets (e.g., equipment, machinery, fixtures) (this clause (iii),
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the “Wind-Down”). Each Seller shall, and shall cause its Affiliates to, ensure that any goods and
services provided in association with any such Trademarks are of a character and quality
substantially equivalent to or better than the quality of those provided by Sellers in the twelve
month period prior to the Closing, and will not use or display any such Trademarks in a manner
that impairs the goodwill associated therewith in any material respect.
Section 8.10 Legal Entity Names. Without limiting Section 8.9, to the extent that any
Sellers or their Affiliates continue to incorporate the Trademarks or words “Bed Bath & Beyond,”
“Bed Bath and Beyond,” or any combination or variation of the foregoing (“Beyond Marks”) in
their corporate or legal names following the Closing, Sellers shall, and shall cause any such
applicable Affiliates to, by no later than September 30, 2023, (a) dissolve such entities or (b)
change the corporate and legal names of such entities to no longer incorporate any Beyond Marks.
Section 8.11 Mobile Platform Transfer and Update.
(a) Sellers shall, and shall cause any of their applicable Affiliates to, at least
seven Business Days prior to Closing, submit or cause to be submitted to the Apple App Store and
Google Play Store the applicable Software packages that Buyer will provide to Sellers for the
purpose of updating the mobile Software applications made available through the Mobile
Platforms; provided that (i) Sellers may stipulate when submitting such Software packages and
attendant update requests that the “go-live” date for such updates will occur on or within two days
following the date of the hearing before the Bankruptcy Court to consider the Sale Order, and
(ii) Sellers may cancel and rescind such update request if this Agreement terminates prior to
Closing. Sellers shall mark such submission for “manual release,” and immediately following the
Closing, Sellers shall, and shall cause any of their applicable Affiliates to, provide Buyer with
access to the accounts held by or on behalf of Sellers and their Affiliates with respect to the Mobile
Platform on the Apple App Store and Google Play Store.
(b) Without limiting the foregoing, Sellers shall, and shall cause any of their
applicable Affiliates to, reasonably cooperate and assist in good faith as may be reasonably
requested by the Buyer in connection with the Buyer’s efforts to prepare and promptly implement
any updates needed to commence Buyer’s administration, operation and control of the Mobile
Platform (and the content provided thereon) promptly following the Closing.
Section 8.12 Use of Email. From and after the Closing, Sellers shall be permitted and
entitled (a) until the Commercialization End Date (i) to use and access the bedbathandbeyond.com
email domain to email customers of the Business (including using customer information included
in Business Data) and (ii) maintain and operate the website at bedbathandbeyond.com, in each
case, in connection with the promotion and marketing of the sale and liquidation of inventory in
substantially the same manner as done by Sellers prior to the Closing, but subject to Section 8.13,
and (b) until the Wind-Down End Date, permit Sellers and its designees to use and access the
bedbath.com email domain as an email server in connection with the Wind-Down. Buyer shall,
and shall cause the Buyer Group to, reasonably cooperate with and assist Sellers in connection
with the foregoing, and Buyer shall not, and shall cause the Buyer Group not to, take any actions
that will prevent any Seller or its designees from performing the foregoing. Without limiting the
foregoing, Buyer shall, and shall cause members of the Buyer Group to, (y) through July 31, 2023,
maintain and operate the bedbathandbeyond.com email domain as currently configured, and
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(z) through September 30, 2023, maintain and operate the bedbath.com email domain as currently
configured. Any communication by Sellers on bedbath.com will be and will remain Sellers’
exclusive property, and Buyer will not, and will not permit any of its Advisors acting on its behalf
to, access such communication without Sellers’ (or their applicable successors’, if any) prior
written consent.
Section 8.13 Cooperation on Communications. Following the Closing, no Seller shall

send out any email or other notice communication to customers without the prior written consent
of Buyer (such consent not to be unreasonably withheld, conditioned or delayed); provided that
(a) consent shall be deemed received if Buyer does not object within 24 hours of Buyer’s receipt
of such proposed communication (which may be by email to the address set forth in Section 12.3
but not subject to the timing requirements in such section), (b) such consent shall not be required
(but Buyer shall still receive prompt notice thereof) if the proposed communication is substantially
identical to (i) any prior communication consented to (or deemed consented to in accordance with
clause (a)) by Buyer or (ii) the form(s) attached to Section 8.13 of the Disclosure Schedules, and
(c) any objection solely due to pricing or discount information shall be deemed unreasonable.
Following the Closing through July 31, 2023, Buyer shall not, and shall cause each member of the
Buyer Group not to, send any email or other communication to customers of the Business, and
include any messaging on the website of the Business, in each case, that actively seeks to keep
customers from going to the brick and mortar stores of the Business for the “store closing” sales
of the Business. Sellers each agree that, following the Closing, no Seller shall send any email or
other communication to customers of the Business, or include any messaging on the website of the
Business, in each case that states or implies that the e-commerce part of the Business is ceasing
operations or winding down its business activities. For the avoidance of doubt, the term “going out
of business” shall not be included in any email or other customer communication without specific
modifications limiting its meaning to physical stores and inventory.
Section 8.14 IP Condition. Sellers shall use reasonable best efforts to satisfy the matters
described on Section 8.14 of the Disclosure Schedules in accordance with the terms thereof (the
completion and performance of such matters, the “IP Condition”).
Section 8.15 Acknowledgment by Buyer.
(a) Buyer acknowledges and agrees that it has conducted to its full satisfaction
an independent investigation and verification of the business (including its financial condition,
results of operations, assets, Liabilities, properties, Contracts, environmental, health or safety
conditions and compliance, employee matters, regulatory compliance, business risks and
prospects) of Sellers, the Acquired Assets and the Assumed Liabilities, and, in making its
determination to proceed with the transactions contemplated by this Agreement, Buyer has relied
solely on the Express Representations and the results of the Buyer Group’s own independent
investigation and verification and has not relied on, is not relying on, and will not rely on, any
information, statements, disclosures, documents, projections, forecasts or other material made
available to Buyer or any of its Affiliates or Advisors in the Dataroom, the Information
Presentation, or the Projections or any other information, statements, disclosures or materials, in
each case, whether written or oral, made or provided by or on behalf of any Seller, or any failure
of any of the foregoing to disclose or contain any information, except for the Express
Representations (it being understood that Buyer has relied only on the Express Representations).
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Buyer acknowledges and agrees that (i) the Express Representations are the sole and exclusive
representations, warranties and statements of any kind made to Buyer or any member of the Buyer
Group and on which Buyer or any member of the Buyer Group may rely in connection with the
transactions contemplated by this Agreement and (ii) all other representations, warranties and
statements of any kind or nature expressed or implied, whether in written, electronic or oral form,
including (A) the completeness or accuracy of, or any omission to state or to disclose, any
information (other than solely to the extent expressly set forth in the Express Representations)
including in the Dataroom, Information Presentation, Projections, meetings, calls or
correspondence with management of any Seller, any of the Seller Parties or any other Person on
behalf of any Seller or any of the Seller Parties or any of their respective Affiliates or Advisors
and (B) any other statement relating to the historical, current or future business, financial condition,
results of operations, assets, Liabilities, properties, Contracts, environmental, health or safety
conditions and compliance, employee matters, regulatory compliance, business risks and prospects
of Sellers, or the quality, quantity or condition of any Seller’s assets, are, in each case, specifically
disclaimed by each Seller, on its behalf and on behalf of the Seller Parties. Buyer, on its own behalf
and on behalf of the Buyer Group: (1) disclaims reliance on the items in clause (ii) in the
immediately preceding sentence; and (2) acknowledges and agrees that it has relied on, is relying
on and will rely on only the items in clause (i) in the immediately preceding sentence.
(b) Without limiting the generality of the foregoing, in connection with the
investigation by the Buyer Group of Sellers, Buyer and the members of the Buyer Group, and the
Advisors of each of the foregoing, have received or may receive, from or on behalf of Sellers,
certain projections, forward-looking statements and other forecasts (whether in written, electronic,
or oral form, and including in the Information Presentation, Dataroom, management meetings,
etc.) (collectively, “Projections”). Buyer acknowledges and agrees that (i) such Projections are
being provided solely for the convenience of Buyer to facilitate its own independent investigation
of Sellers, (ii) there are uncertainties inherent in attempting to make such Projections, (iii) Buyer
is familiar with such uncertainties, and (iv) Buyer is taking full responsibility for making their own
evaluation of the adequacy and accuracy of all Projections (including the reasonableness of the
assumptions underlying such Projections).
ARTICLE IX
CONDITIONS TO CLOSING
Section 9.1 Conditions Precedent to the Obligations of Buyer and Sellers. The
respective obligations of each Party to consummate the transactions contemplated by this
Agreement are subject to the satisfaction (or to the extent permitted by Law, written waiver by
Sellers and Buyer) on or prior to the Closing Date, of each of the following conditions:
(a) no court of competent jurisdiction shall have issued, enacted, entered,

promulgated or enforced any Order (including any temporary restraining Order or preliminary or
permanent injunction) restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement that is still in effect; and
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(b) the Bankruptcy Court shall have entered the Sale Order, which shall not (i)
be subject to any stay or (ii) have been vacated or modified after entrance in any respect and this
Agreement shall become effective in accordance with its terms.
Section 9.2 Conditions Precedent to the Obligations of Buyer. The obligations of Buyer
to consummate the transactions contemplated by this Agreement are subject to the satisfaction (or
to the extent permitted by Law, written waiver by Buyer in its sole discretion), on or prior to the
Closing Date, of each of the following conditions:
(a) (i) the representations and warranties made by Sellers in Article V (in each
case, other than the Fundamental Representations) shall be true and correct in all respects as of the
Closing Date as though made on and as of the Closing Date, except (A) that representations and
warranties that are made as of a specified date need be true and correct only as of such date and
(B) to the extent the failure of such representations and warranties to be true and correct as of such
dates has not had a Material Adverse Effect (provided that for purposes of the foregoing clauses,
the qualifications as to materiality and Material Adverse Effect contained in such representations
and warranties shall not be given effect (other than those contained in Section 5.5)) and (ii) the
representations and warranties set forth in Section 5.1 and Section 5.2 (collectively, the
“Fundamental Representations”) shall be true and correct in all respects as of the Closing Date as
though made on and as of the Closing Date, except that such Fundamental Representations that
are made as of a specified date need be true and correct in all material respects only as of such
date;
(b) Sellers shall have performed and complied in all material respects with the
covenants contained in this Agreement which are required to be performed and complied with by
Sellers on or prior to the Closing;
(c) Buyer shall have received a certificate signed by an executive officer of

Sellers stating that the conditions specified in Section 9.2(a) and Section 9.2(b) have been
satisfied; and
(d) Sellers shall have delivered, or caused to be delivered, to Buyer all of the
items set forth in Section 4.3, except for such deliveries which, by their nature, cannot be made on
or prior to the Closing.
Section 9.3 Conditions Precedent to the Obligations of Sellers. The obligations of

Sellers to consummate the transactions contemplated by this Agreement are subject to the
satisfaction (or to the extent permitted by Law, written waiver by Sellers in their sole discretion),
on or prior to the Closing Date, of each of the following conditions:
(a) The representations and warranties of Buyer contained in Article VI shall

be true and correct in all respects as of the Closing Date as though made on and as of the Closing
Date, except (i) that representations and warranties that are made as of a specified date need be
true and correct only as of such date and (ii) to the extent the failure of such representations and
warranties to be true and correct as of such dates, individually or in the aggregate, has not had and
would not reasonably be expected to prevent or materially impair the ability of Buyer to
consummate the transactions contemplated by this Agreement;
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(b) Buyer shall have performed and complied in all material respects with the
covenants contained in this Agreement which are required to be performed and complied with by
it on or prior to the Closing;
(c) Sellers shall have received a certificate signed by an executive officer of

Buyer stating that the conditions specified in Section 9.3(a) and Section 9.3(b) have been satisfied;
and
(d) Buyer shall have delivered, or caused to be delivered, to Sellers all of the
items set forth in Section 4.2, except for such deliveries which, by their nature, cannot be made on
or prior to the Closing.
ARTICLE X
TERMINATION
Section 10.1 Termination of Agreement. This Agreement may be terminated only in

accordance with this Section 10.1. This Agreement may be terminated at any time prior to the
Closing:
(a) by the mutual written consent of Sellers and Buyer;
(b) by written notice of either Buyer or Sellers, upon the issuance of an Order
by a court of competent jurisdiction restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated by this Agreement or declaring unlawful the
transactions contemplated by this Agreement, and such Order having become final, binding and
non-appealable; provided that no Party may terminate this Agreement under this Section 10.1(b)
if the issuance of such Order was caused by such Party’s material breach of any of its obligations
under this Agreement;
(c) by written notice of either Buyer or Sellers, if the Closing shall not have
occurred on or before July 3, 2023 (the “Outside Date”); provided that a Party shall not be
permitted to terminate this Agreement pursuant to this Section 10.1(c) if the failure of the Closing
to have occurred by the Outside Date was caused by such Party’s material breach of any of its
obligations under this Agreement;
(d) by written notice from Sellers to Buyer, upon a breach of any covenant or
agreement on the part of Buyer, or if any representation or warranty of Buyer will have become
untrue, in each case, such that the conditions set forth in Section 9.3(a) or Section 9.3(b) would
not be satisfied, including a breach of Buyer’s obligation to consummate the Closing; provided
that (i) if such breach is curable by Buyer then Sellers may not terminate this Agreement under
this Section 10.1(d) unless such breach has not been cured by the date which that the earlier of
(A) the Outside Date and (B) 15 Business Days after Sellers notify Buyer in writing of such breach
and (ii) the right to terminate this Agreement pursuant to this Section 10.1(d) will not be available
to Sellers at any time that Sellers are in material breach of, any covenant, representation or
warranty hereunder such that the conditions set forth in Section 9.2(a) or Section 9.2(b) would not
be satisfied;
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(e) by written notice from Buyer to Sellers, upon a breach of any covenant or
agreement on the part of Sellers, or if any representation or warranty of Sellers will have become
untrue, in each case, such that the conditions set forth in Section 9.2(a) or Section 9.2(b) would
not be satisfied; provided that (i) if such breach is curable by Sellers then Buyer may not terminate
this Agreement under this Section 10.1(e) unless such breach has not been cured by the date which
is the earlier of (A) the Outside Date and (B) 15 Business Days after Buyer notifies Sellers in
writing of such breach and (ii) the right to terminate this Agreement pursuant to this
Section 10.1(e) will not be available to Buyer at any time that Buyer is in material breach of, any
covenant, representation or warranty hereunder such that the conditions set forth in Section 9.3(a)
or Section 9.3(b) would not be satisfied;
(f) by written notice from Sellers to Buyer, if all of the conditions set forth in
Section 9.1 and 9.2 have been satisfied (other than conditions that by their nature are to be satisfied
at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing) or waived
and Buyer fails to complete the Closing at the time required by Section 4.1;
(g) by written notice from Sellers to Buyer, if any Seller or the board of
directors of BBBY determines that proceeding with the transactions contemplated by this
Agreement or failing to terminate this Agreement would be inconsistent with the board’s fiduciary
duties under applicable Law;
(h) by written notice of either Buyer or Sellers, if any Seller consummates one
or more Alternative Transactions with one or more Persons other than Buyer. For the avoidance
of doubt, a transaction entered into by any Sellers that is not an Alternative Transaction shall not
entitle Buyer to terminate this Agreement pursuant to this Section 10.1(h);
(i) by Buyer:
(i) if one or more of the Bankruptcy Cases is dismissed or converted to

a liquidation proceeding under Chapter 7 of the Bankruptcy Code;
(ii) If the Bankruptcy Court enters any Order that would reasonably be
expect to prevent, impede or materially delay the consummation of the transactions
contemplated hereby in accordance with the terms hereof; or
(iii) if any creditor of any Seller obtains a final and unstayed Order of
the Bankruptcy Court granting relief from the stay to foreclose on any portion of the
Acquired Assets.
(j) by written notice from Buyer to Sellers, if Buyer is not the Successful
Bidder or the Backup Bidder at the Auction.
Section 10.2 Effect of Termination.
(a) In the event of termination of this Agreement pursuant to Section 10.1, this
Agreement shall forthwith become void and no Party or any of its partners, officers, directors,
managers or equityholders will have any Liability under this Agreement; provided that Section 3.2,
Section 8.2(b), this Section 10.2 and Article XII shall survive any such termination; provided
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further that no termination will relieve any Party from any Liability for damages, losses, costs or
expenses (which the Parties acknowledge and agree shall not be limited to reimbursement of
expenses or out-of-pocket costs, and would include the benefits of the transactions contemplated
by this Agreement lost by the Parties (taking into consideration all relevant matters, including other
combination opportunities and the time value of money), which shall be deemed in such event to
be damages of the applicable Party(s)) resulting from any Willful Breach of this Agreement prior
to the date of such termination (which, for the avoidance of doubt, will be deemed to include any
failure by any Party to consummate the Closing if and when it is obligated to do so hereunder).
Subject to Section 12.12, nothing in this Section 10.2 will be deemed to impair the right of any
Party to be entitled to specific performance or other equitable remedies to enforce specifically the
terms and provisions of this Agreement.
(b) If this Agreement is terminated other than (i) by Sellers pursuant to

Section 10.1(c) (if termination pursuant to Section 10.1(c) would be unavailable to Buyer) or
(ii) pursuant to Section 10.1(a), Section 10.1(d), or Section 10.1(f), then Sellers (jointly and
severally) shall pay Buyer by wire transfer of immediately available funds within three Business
Days following such termination of this Agreement an amount equal to the reasonable and
documented out-of-pocket costs and expenses (including fees and expenses of its counsel and
financial advisor) incurred by Buyer in connection with the negotiation, diligence, execution,
performance and enforcement of this Agreement (“Expense Reimbursement”), which amount shall
not exceed $430,000. The Expense Reimbursement shall be treated as an administrative expense
in the Bankruptcy Case under Section 503 and Section 507(b) of the Bankruptcy Code. For the
avoidance of doubt, the Expense Reimbursement, if payable pursuant to this Section 10.2(b), shall
be in addition to the return of the Deposit and payment of the Breakup Fee, in each case, to the
extent payable to Buyer pursuant to Section 3.2 and Section 10.2(c), respectively.
(c) In consideration for Buyer having expended considerable time and expense
in connection with this Agreement and the negotiation thereof, Sellers (jointly and severally) shall
pay to Buyer a break-up fee in an amount equal to $430,000 (the “Breakup Fee”) plus the Expense
Reimbursement to an account designated by Buyer in writing to Sellers, (i) in the event that this
Agreement is terminated pursuant to Section 10.1(e) or Section 10.1(h) or (ii) in the event this
Agreement is otherwise terminated pursuant to Section 10.1(g), Section 10.1(i), or Section 10.1(j)
or terminated by Sellers pursuant to Section 10.1(c) and, solely in the case of this clause (ii), at
any time within 12 months following the termination of this Agreement an Alternative Transaction
shall have been consummated (an “Alternative Transaction Trigger”). Such Breakup Fee shall be
due and payable (x) within five Business Days after the termination of this Agreement by Buyer
in the case of the foregoing clause (i), and (y) simultaneously with the earliest to occur of any
Alternative Transaction Trigger in the case of the foregoing clause (ii). The Breakup Fee shall be
treated as an administrative expense in the Bankruptcy Case under Section 503 and Section 507(b)
of the Bankruptcy Code. For the avoidance of doubt, the Breakup Fee, if payable pursuant to this
Section 10.2(c), shall be in addition to the return of the Deposit and payment of the Expense
Reimbursement, in each case, to the extent payable to Buyer pursuant to Section 3.2 and
Section 10.2(b), respectively.
(d) Each of the Parties acknowledges and agrees that the agreements contained
in this Section 10.2 are an integral part of this Agreement and that the Expense Reimbursement
and the Breakup Fee are not a penalty, but rather represent liquidated damages in a reasonable
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amount that will reasonably compensate Buyer in the circumstances in which such Expense
Reimbursement and/or Breakup Fee, as applicable, is payable for the efforts and resources
expended and opportunities foregone by Buyer while negotiating and pursuing this Agreement and
in reasonable reliance on this Agreement and on the reasonable expectation of the consummation
of the transactions contemplated hereby, which amount would otherwise be impossible to calculate
with precision.
(e) If Sellers fail to take any action necessary to cause the delivery of the
Breakup Fee and/or the Expense Reimbursement under circumstances where Buyer is entitled to
the Breakup Fee and/or the Expense Reimbursement and, in order to obtain such Breakup Fee
and/or Expense Reimbursement, Buyer commences a suit which results in a judgment in favor of
Buyer, Sellers (jointly and severally) shall pay to Buyer, in addition to the Breakup Fee and/or the
Expense Reimbursement, an amount in cash equal to the costs and expenses (including attorney’s
and financial advisor fees) incurred by Buyer in connection with such suit.
(f) Pursuant to the Bidding Procedures Order, the claim of Buyer in respect of
the Expense Reimbursement or the Breakup Fee is and constitutes an allowed administrative
expense claim against Sellers under sections 503 and 507(b) of the Bankruptcy Code in the
Bankruptcy Case.
ARTICLE XI
TAXES
Section 11.1 Transfer Taxes. Any sales, use, excise, purchase, transfer, franchise, deed,
fixed asset, stamp, documentary stamp, value added, recordation, license, conveyance, use and
other similar Taxes imposed on or with respect to the sale of the Acquired Assets or the assumption
of the Assumed Liabilities under this Agreement or the transactions contemplated hereby
(“Transfer Taxes”) shall be borne and timely paid fifty percent (50%) by Sellers and fifty percent
(50%) by Buyer; provided that Buyer shall not be liable for more than $100,000 of Transfer Taxes
and any Transfer Taxes in excess of $200,000 (such that, in the absence of this proviso, Buyer
would be liable for more than $100,000 of such Transfer Taxes) shall be borne by Sellers. Buyer
shall timely file all Tax Returns related to any Transfer Taxes. Buyer and Sellers will use
commercially reasonable efforts and cooperate in good faith to exempt the transactions
contemplated hereby from any Transfer Taxes to the extent allowed under applicable Law.
Section 11.2 Periodic Taxes. For purposes of this Agreement, with respect to any
Acquired Asset, Sellers and Buyer shall apportion the liability for real and personal property
Taxes, ad valorem Taxes, and similar Taxes (other than Transfer Taxes) (“Periodic Taxes”) for
Straddle Periods applicable to such Acquired Asset in accordance with this Section 11.2. The
Periodic Taxes described in this Section 11.2 shall be apportioned between Sellers and Buyer as
of the Closing Date, with Buyer liable for that portion of the Periodic Taxes for a Straddle Period
(which portion of such Taxes shall for purposes of this Agreement be deemed attributable to the
Post-Closing Tax Period) equal to the Periodic Taxes for such Straddle Period multiplied by a
fraction, the numerator of which is the number of days remaining in such Straddle Period after the
Closing Date, and the denominator of which is the total number of days in such entire Straddle
Period. Sellers shall be liable for that portion of the Periodic Taxes for a Straddle Period (which
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portion of such Taxes shall for purposes of this Agreement be deemed attributable to the Pre-
Closing Tax Period) equal to the Periodic Taxes for such Straddle Period multiplied by a fraction,
the numerator of which is the number of days in the portion of such Straddle Period ending on
(and including) the Closing Date, and the denominator of which is the total number of days in such
entire Straddle Period. The party hereto responsible under applicable Law for paying a Tax
described in this Section 11.2 shall be responsible for administering the payment of such Tax.
Section 11.3 Reimbursements. Sellers, on the one hand, or Buyer on the other hand, as
the case may be (the “Reimbursing Party”) shall provide reimbursement for any Tax paid by the
other (the “Paying Party”), all or a portion of which is the responsibility of the Reimbursing Party
in accordance with the terms of this Agreement.
Section 11.4 Cooperation. Buyer and Sellers shall reasonably cooperate, as and to the
extent reasonably requested by the other Party, in connection with the preparation or filing of Tax
Returns, the determination of any liability in respect of Taxes or the right to any refund, credit, or
prepayment in respect of Taxes, and any Tax Proceeding.
Section 11.5 Preparation of Tax Returns and Payment of Taxes. Buyer shall prepare and
timely file all non-income Tax Returns solely relating to the Acquired Assets for any Straddle
Period. Buyer shall prepare such Tax Returns consistent with past practice and shall provide Sellers
with a draft of such Tax Returns at least 30 days (or such shorter period as is reasonable taking
into account the Tax period and the nature of the relevant Tax Return or other relevant
circumstances) prior to the filing of any such Tax Return. Buyer shall incorporate any changes
reasonably requested by Sellers with respect to such Tax Returns if such Tax Returns could
materially and adversely affect Sellers in a Pre-Closing Tax Period or reflect a Tax that is borne
by Sellers pursuant to this Agreement or otherwise. Buyer shall be responsible for paying any
Taxes reflected on any Tax Return that Buyer is obligated to prepare and file under this
Section 11.5, except to the extent such Taxes constitute an Excluded Tax.
ARTICLE XII
MISCELLANEOUS
Section 12.1 Non-Survival of Representations and Warranties and Certain Covenants;

Certain Waivers. Each of the representations and warranties and the covenants and agreements (to
the extent such covenant or agreement contemplates or requires performance by such Party prior
to the Closing) of the Parties set forth in this Agreement or in any other document contemplated
hereby, or in any certificate delivered hereunder or thereunder, will terminate effective
immediately as of the Closing such that no claim for breach of any such representation, warranty,
covenant or agreement, detrimental reliance or other right or remedy (whether in contract, in tort
or at law or in equity) may be brought with respect thereto after the Closing. Each covenant and
agreement that explicitly contemplates performance after the Closing, will, in each case and to
such extent, expressly survive the Closing in accordance with its terms, and if no term is specified,
then for five years following the Closing Date, and nothing in this Section 12.1 will be deemed to
limit any rights or remedies of any Person for breach of any such surviving covenant or agreement.
The Parties acknowledge and agree that the agreements contained in this Section 12.1 (a) require
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performance after the Closing to the maximum extent permitted by applicable Law and will
survive the Closing for five years and (b) are an integral part of the transactions contemplated
hereby and that, without the agreements set forth in this Section 12.1, none of the Parties would
enter into this Agreement.
Section 12.2 Expenses. Whether or not the Closing takes place, except as otherwise
provided herein (including, for the avoidance of doubt, Section 10.2), all fees, costs and expenses
(including fees, costs and expenses of Advisors) incurred in connection with the negotiation of this
Agreement and the other agreements contemplated hereby, the performance of this Agreement and
the other agreements contemplated hereby and the consummation of the transactions contemplated
hereby and thereby will be paid by the Party incurring such fees, costs and expenses; it being
acknowledged and agreed that Sellers and Buyers shall each bear 50% of any reasonable fees and
expenses of the Escrow Agent, all Transfer Taxes will be governed by Section 11.1, and all Cure
Costs will be governed by Section 2.4(c) and Section 2.5.
Section 12.3 Notices. Except as otherwise expressly provided herein, all notices,
demands and other communications to be given or delivered under or by reason of the provisions
of this Agreement will be in writing and will be deemed to have been given (a) when personally
delivered, (b) when transmitted by electronic mail (having obtained electronic delivery
confirmation thereof), (c) the day following the day on which the same has been delivered prepaid
to a reputable national overnight air courier service or (d) the third Business Day following the
day on which the same is sent by certified or registered mail, postage prepaid, in each case, to the
respective Party at the number, electronic mail address or street address, as applicable, set forth
below, or at such other number, electronic mail address or street address as such Party may specify
by written notice to the other Party.
Notices to Buyer:
Overstock.com, Inc.
799 W. Coliseum Way
Midvale, UT 84047
Attention: Chief Legal Officer and Corporate Secretary
Email: gnickle@overstock.com
with a copy to (which shall not constitute notice):
Wachtell, Lipton, Rosen & Katz

51 West 52nd Street
New York, NY 10019
Attn: Scott K. Charles
Michael S. Benn
Gordon S. Moodie
E-Mail: SKCharles@wlrk.com
MSBenn@wlrk.com
GSMoodie@wlrk.com
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Notices to Sellers:
Bed Bath & Beyond Inc.

650 Liberty Avenue
Union, New Jersey 07083
Attention: EVP, Chief Legal Officer and Corporate Secretary
E-mail: david.kastin@bedbath.com
with copies to (which shall not constitute notice):
Kirkland & Ellis LLP

New York, NY 10022
Attention: Josh Sussberg, P.C.
Steve Toth
Daniel Elizondo
Emily Geier
Derek Hunter
Email: jsussberg@kirkland.com
steve.toth@kirkland.com
daniel.elizondo@kirkland.com
Section 12.4 Binding Effect; Assignment. This Agreement shall be binding upon Buyer
and, subject to the terms of the Bidding Procedures Order (with respect to the matters covered
thereby) and the entry and terms of the Sale Order, Sellers, and shall inure to the benefit of and be
so binding on the Parties and their respective successors and permitted assigns, including any
trustee or estate representative appointed in the Bankruptcy Cases or any successor Chapter 7
cases; provided that neither this Agreement nor any of the rights or obligations hereunder may be
assigned or delegated without the prior written consent of Buyer and Sellers, and any attempted
assignment or delegation without such prior written consent shall be null and void; provided,
however, that the rights of Buyer under this Agreement may be assigned by Buyer, in whole or in
part, without the prior written consent of any Seller, to one or more of Buyer’s Affiliates so long
as Buyer shall continue to remain obligated in full hereunder.
Section 12.5 Amendment and Waiver. Any provision of this Agreement or the
Disclosure Schedules or exhibits hereto may be (a) amended only in a writing signed by Buyer
and Sellers that are party to this Agreement or (b) waived only in a writing executed by the Person
against which enforcement of such waiver is sought. No waiver of any provision hereunder or any
breach or default thereof will extend to or affect in any way any other provision or prior or
subsequent breach or default.
Section 12.6 Third Party Beneficiaries. Except as otherwise expressly provided herein,
nothing expressed or referred to in this Agreement will be construed to give any Person other than
the Parties any legal or equitable right, remedy, or claim under or with respect to this Agreement
or any provision of this Agreement.
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Section 12.7 Non-Recourse. This Agreement may only be enforced against, and any
Proceeding based upon, arising out of or related to this Agreement may only be brought against,
the Persons that are expressly named as parties to this Agreement. Except to the extent named as
a party to this Agreement, and then only to the extent of the specific obligations of such parties set
forth in this Agreement, no past, present or future shareholder, member, partner, manager, director,
officer, employee, Affiliate, agent or Advisor of any Party will have any Liability (whether in
contract, tort, equity or otherwise) for any of the representations, warranties, covenants,
agreements, or other obligations or Liabilities of any of the Parties with respect to the matters set
forth in this Agreement or for any Agreement Dispute.
Section 12.8 Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable Law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable Law in any jurisdiction,
such provision will be ineffective only to the extent of such prohibition or invalidity in such
jurisdiction, without invalidating the remainder of such provision or the remaining provisions of
this Agreement or in any other jurisdiction.
Section 12.9 Construction. The language used in this Agreement will be deemed to be
the language chosen by the Parties to express their mutual intent, and no rule of strict construction
will be applied against any Person. The headings of the sections and paragraphs of this Agreement
have been inserted for convenience of reference only and will in no way restrict or otherwise
modify any of the terms or provisions hereof.
Section 12.10 Disclosure Schedules. The Disclosure Schedules have been arranged for
purposes of convenience in separately numbered sections corresponding to the sections of this
Agreement; provided that each section or subsection of the Disclosure Schedules will be deemed
to incorporate by reference any information disclosed against any representation or warranty in
any other section or subsection of the Disclosure Schedules to the extent it is reasonably apparent
on the face of such disclosure that it is applicable to qualify such representation and warranty.
Capitalized terms used in the Disclosure Schedules and not otherwise defined therein have the
meanings given to them in this Agreement. The specification of any dollar amount or the inclusion
of any item in the representations and warranties contained in this Agreement, the Disclosure
Schedules or the attached exhibits is not intended to imply that the amounts, or higher or lower
amounts, or the items so included, or other items, are or are not required to be disclosed (including
whether such amounts or items are required to be disclosed as material or threatened) or are within
or outside of the ordinary course of business consistent with past practice, and no Party will use
the fact of the setting of the amounts or the fact of the inclusion of any item in this Agreement, the
Disclosure Schedules or exhibits in any dispute or controversy between the Parties as to whether
any obligation, item or matter not set forth or included in this Agreement, the Disclosure Schedules
or exhibits is or is not required to be disclosed (including whether the amount or items are required
to be disclosed as material or threatened) or are within or outside of the ordinary course of business
consistent with past practice. In addition, matters reflected in the Disclosure Schedules are not
necessarily limited to matters required by this Agreement to be reflected in the Disclosure
Schedules. Such additional matters are set forth for informational purposes only and do not
necessarily include other matters of a similar nature. No information set forth in the Disclosure
Schedules will be deemed to broaden in any way the scope of the Parties’ representations and
warranties. The information contained in this Agreement, in the Disclosure Schedules and exhibits
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hereto is disclosed solely for purposes of this Agreement, and no information contained herein or
therein will be deemed to be an admission by any Party to any third party of any matter whatsoever,
including any violation of Law or breach of Contract.
Section 12.11 Complete Agreement. This Agreement, together with the Confidentiality
Agreement and any other agreements expressly referred to herein (including the Transaction
Documents) or therein, contains the entire agreement of the Parties respecting the sale and
purchase of the Acquired Assets and the Assumed Liabilities and the transactions contemplated
by this Agreement and supersedes all prior agreements among the Parties respecting the sale and
purchase of the Acquired Assets and the Assumed Liabilities and the transactions contemplated
by this Agreement. In the event an ambiguity or question of intent or interpretation arises with
respect to this Agreement, the terms and provisions of the execution version of this Agreement
will control and prior drafts of this Agreement and the documents referenced herein will not be
considered or analyzed for any purpose (including in support of parol evidence proffered by any
Person in connection with this Agreement), will be deemed not to provide any evidence as to the
meaning of the provisions hereof or the intent of the Parties with respect hereto and will be deemed
joint work product of the Parties.
Section 12.12 Specific Performance. The Parties agree that irreparable damage, for which
monetary relief, even if available, would not be an adequate remedy, would occur in the event that
any provision of this Agreement is not performed in accordance with its specific terms or is
otherwise breached, including if any of the Parties fails to take any action required of it hereunder
to consummate the transactions contemplated by this Agreement. It is accordingly agreed that
(a) the Parties will be entitled to an injunction or injunctions, specific performance or other
equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in the courts described in Section 12.13 without proof of damages or otherwise,
this being in addition to any other remedy to which they are entitled under this Agreement, and
(b) the right of specific performance and other equitable relief is an integral part of the transactions
contemplated by this Agreement and without that right, neither Sellers nor Buyer would have
entered into this Agreement. The Parties acknowledge and agree that any Party pursuing an
injunction or injunctions or other Order to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in accordance with this Section 12.12 will
not be required to provide any bond or other security in connection with any such Order. The
remedies available to the Parties pursuant to this Section 12.12 will be in addition to any other
remedy to which they were entitled at law or in equity, and the election to pursue an injunction or
specific performance will not restrict, impair or otherwise limit any Party from seeking to collect
or collecting damages. If, prior to the Outside Date, any Party brings any action, in each case in
accordance with Section 12.13, to enforce specifically the performance of the terms and provisions
hereof by any other Party, the Outside Date will automatically be extended (i) for the period during
which such action is pending, plus three Business Days or (ii) by such other time period established
by the court presiding over such action, as the case may be.
Section 12.13 Jurisdiction and Exclusive Venue. Each of the Parties irrevocably agrees
that any Proceeding of any kind whatsoever, including a counterclaim, cross-claim, or defense,
regardless of the legal theory under which any Liability or obligation may be sought to be imposed,
whether sounding in contract or in tort or under statute, or whether at law or in equity, or otherwise
under any legal or equitable theory, that may be based upon, arising out of, or related to this
-50-
Agreement or the negotiation, execution, or performance of this Agreement or the transactions

contemplated hereby and any questions concerning the construction, interpretation, validity and
enforceability of this Agreement (each, an “Agreement Dispute”) brought by any other Party or its
successors or assigns will be brought and determined only in (a) the Bankruptcy Court and any
federal court to which an appeal from the Bankruptcy Court may be validly taken or (b) if the
Bankruptcy Court is unwilling or unable to hear such Proceeding, in the United States federal
courts for the Southern District of New York (the “Chosen Courts”), and each of the Parties hereby
irrevocably submits to the exclusive jurisdiction of the Chosen Courts for itself and with respect
to its property, generally and unconditionally, with regard to any Agreement Dispute. Each of the
Parties agrees not to commence any Agreement Dispute except in the Chosen Courts, other than
Proceedings in any court of competent jurisdiction to enforce any Order, decree or award rendered
by any Chosen Courts, and no Party will file a motion to dismiss any Agreement Dispute filed in
a Chosen Court on any jurisdictional or venue-related grounds, including the doctrine of forum
non-conveniens. The Parties irrevocably agree that venue would be proper in any of the Chosen
Court, and hereby irrevocably waive any objection that any such court is an improper or
inconvenient forum for the resolution of any Agreement Dispute. Each of the Parties further
irrevocably and unconditionally consents to service of process in the manner provided for notices
in Section 12.3. Nothing in this Agreement will affect the right of any Party to serve process in
any other manner permitted by Law.
Section 12.14 Governing Law; Waiver of Jury Trial.
(a) Except to the extent the mandatory provisions of the Bankruptcy Code
apply, this Agreement and any Agreement Dispute will be governed by and construed in
accordance with the internal Laws of the State of Delaware applicable to agreements executed and
performed entirely within such State without regards to conflicts of law principles of the State of
Delaware or any other jurisdiction that would cause the Laws of any jurisdiction other than the
State of Delaware to apply.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY

AGREEMENT DISPUTE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES AND THEREFORE HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
AGREEMENT DISPUTE. EACH OF THE PARTIES AGREES AND CONSENTS THAT ANY
SUCH AGREEMENT DISPUTE WILL BE DECIDED BY COURT TRIAL WITHOUT A JURY
AND THAT THE PARTIES MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF
THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE PARTIES TO THE IRREVOCABLE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
EACH PARTY (I) CERTIFIES THAT NO ADVISOR OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF ANY AGREEMENT DISPUTE, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 12.15 No Right to Set Off. Buyer, on its own behalf and on behalf the Buyer Group
and its and their respective successors and permitted assigns, hereby waives any rights of set-off,
-51-
netting, offset, recoupment or similar rights that Buyer, any member of the Buyer Group or any of
its or their respective successors and permitted assigns has or may have with respect to the payment
of the Purchase Price or any other payments to be made by Buyer pursuant to this Agreement or
any other document or instrument delivered by Buyer in connection herewith.
Section 12.16 Counterparts and PDF. This Agreement and any other agreements referred
to herein or therein, and any amendments hereto or thereto, may be executed in multiple
counterparts, any one of which need not contain the signature of more than one party hereto or
thereto, but all such counterparts taken together will constitute one and the same instrument. Any
counterpart, to the extent signed and delivered by means of a .PDF or other electronic transmission,
will be treated in all manner and respects as an original Contract and will be considered to have
the same binding legal effects as if it were the original signed version thereof delivered in person.
Minor variations in the form of the signature page to this Agreement or any agreement or
instrument contemplated hereby, including footers from earlier versions of this Agreement or any
such other document, will be disregarded in determining the effectiveness of such signature. At
the request of any party or pursuant to any such Contract, each other party hereto or thereto will
re-execute original forms thereof and deliver them to all other parties. No party hereto or to any
such Contract will raise the use of a .PDF or other electronic transmission to deliver a signature or
the fact that any signature or Contract was transmitted or communicated through the use of PDF
or other electronic transmission as a defense to the formation of a Contract and each such party
forever waives any such defense.
Section 12.17 Publicity. 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 Party, which approval will not be unreasonably
conditioned, withheld or delayed, unless, in the reasonable judgment of Buyer or Sellers,
disclosure is otherwise required by applicable Law or by the Bankruptcy Court with respect to
filings to be made with the Bankruptcy Court in connection with this Agreement or by the
applicable rules of any stock exchange on which Buyer or Sellers (or their respective Affiliates)
lists securities; provided that the Party intending to make such release shall use its reasonable
efforts consistent with such applicable Law or Bankruptcy Court requirement to consult with the
other Party with respect to the text thereof; provided further that the restrictions set forth herein
shall not apply to the extent the information contained therein substantially reiterates (or is
substantially consistent with) previous releases, public disclosures or public statements made in
compliance with this Section 12.17.
Section 12.18 Bulk Sales Laws. The Parties intend that pursuant to section 363(f) of the
Bankruptcy Code, the transfer of the Acquired Assets shall be free and clear of any Encumbrances
in the Acquired Assets including any liens or claims arising out of the bulk transfer laws except
Permitted Encumbrances, and the Parties shall take such steps as may be necessary or appropriate
to so provide in the Sale Order. In furtherance of the foregoing, each Party hereby waives
compliance by the Parties with the “bulk sales,” “bulk transfers” or similar Laws and all other
similar Laws in all applicable jurisdictions in respect of the transactions contemplated by this
Agreement.
Section 12.19 Time of Essence. With regard to all dates and time periods set forth or
referred to in this Agreement, time is of the essence.
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Section 12.20 Sellers’ Representative. Each Party agrees that BBBY has the power and
authority to unilaterally act on behalf of all or any of Sellers for the purposes specified under this
Agreement. Such power will include the power to make all decisions, actions, Consents and
determinations on behalf of Sellers, including to make any waiver of any Closing condition or
agree to any amendment to this Agreement. No Seller shall have any right to object, dissent, protest
or otherwise contest the same. Buyer shall be entitled to rely on any action or omission taken by
BBBY on behalf of Sellers.
[Signature pages follow.]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and
delivered by their duly authorized representatives, all as of the Effective Date.
Bed Bath & Beyond Inc.
By:
Name:
Title:
[Signature Page to Asset Purchase Agreement]

Overstock.com, Inc.
By:
Name: [●]
Title: [●]
[Signature Page to Asset Purchase Agreement]

ANNEX A
Subsidiary Sellers
Annex A
EXHIBIT A
Form of Sale Order
Exhibit A
EXHIBIT B
Form of Bill of Sale and Assignment and Assumption Agreement
Exhibit B
EXHIBIT C
Form of Intellectual Property Assignment Agreement
Exhibit C
Exhibit B
Form of Sale Order

Confidential; Subject to FRE 408 & Equivalents
UNITED STATES BANKRUPTCY COURT

DISTRICT OF NEW JERSEY
Caption in Compliance with D.N.J. LBR 9004-1(b)

KIRKLAND & ELLIS LLP
KIRKLAND & ELLIS INTERNATIONAL LLP
Joshua A. Sussberg, P.C. (admitted pro hac vice)
Emily E. Geier, P.C. (admitted pro hac vice)
Derek I. Hunter (admitted pro hac vice)
New York, New York 10022
Telephone: (212) 446-4800
Facsimile: (212) 446-4900
joshua.sussberg@kirkland.com
COLE SCHOTZ P.C.

Michael D. Sirota, Esq.
Warren A. Usatine, Esq.
Felice R. Yudkin, Esq.
Court Plaza North, 25 Main Street
Hackensack, New Jersey 07601
Telephone: (201) 489-3000
msirota@coleschotz.com
wusatine@coleschotz.com
fyudkin@coleschotz.com
Co-Counsel for Debtors and Debtors in Possession
In re: Chapter 11
BED BATH & BEYOND INC., et al., Case No. 23-13359 (VFP)
Debtors.1 (Jointly Administered)
ORDER (I) APPROVING THE SALE OF ACQUIRED ASSETS

FREE AND CLEAR OF ALL CLAIMS, LIENS, RIGHTS, INTERESTS,
AND ENCUMBRANCES, (II) AUTHORIZING THE DEBTORS TO ENTER
INTO AND PERFORM THEIR OBLIGATIONS UNDER THE STALKING HORSE
PURCHASE AGREEMENT, (III) APPROVING ASSUMPTION AND ASSIGNMENT OF
CERTAIN EXECUTORY CONTRACTS, AND (IV) GRANTING RELATED RELIEF
1 The last four digits of Debtor Bed Bath & Beyond Inc.’s tax identification number are 0488. A complete list of
the Debtors in these Chapter 11 Cases and each such Debtor’s tax identification number may be obtained on the
website of the Debtors’ claims and noticing agent at https://restructuring.ra.kroll.com/bbby. The location of
Debtor Bed Bath & Beyond Inc.’s principal place of business and the Debtors’ service address in these Chapter 11
Cases is 650 Liberty Avenue, Union, New Jersey 07083.
(Page | 2)
Debtors: BED BATH & BEYOND INC., et al.
Case No. 23-13359-VFP
Caption of Order: Order (I) Approving the Sale of Acquired Assets Free and Clear of All
Claims, Liens, Rights, Interests, and Encumbrances, (II) Authorizing the
Debtors to Enter Into and Perform Their Obligations under the Stalking
Horse Purchase Agreement, (III) Approving Assumption and Assignment
of Certain Executory Contracts, and (IV) Granting Related Relief
The relief set forth on the following pages, numbered [●] ([●]) through [●] ([●]), is
ORDERED.
2
(Page | 3)
Upon the motion (the “Motion”) [Docket No. 29], of the above-captioned debtors and
debtors in possession (collectively, the “Debtors”), for entry of an order (this “Sale Order”)
(a) authorizing and approving the entry into and performance under the terms and conditions of
that certain Asset Purchase Agreement, substantially in the form attached hereto as Exhibit 1 (as
may be amended, supplemented, restated, or otherwise modified from time to time, the “Stalking
Horse Purchase Agreement”),2 by and among certain of the Debtors (the “Sellers”) and
Overstock.com, Inc., a corporation organized under the laws of the State of Delaware
(the “Purchaser”), and all other Transaction Documents, (b) authorizing and approving the sale
(collectively, and including all actions taken or required to be taken in connection with the
implementation and consummation of the Stalking Horse Purchase Agreement, the “Sale”) of
those assets set forth in Section 2.1 of the Stalking Horse Purchase Agreement (the “Acquired
Assets”), on an “as is, where is” basis, free and clear of all liens, claims, encumbrances, and other
interests, except to the extent set forth in the Stalking Horse Purchase Agreement, and the
assumption of certain assumed liabilities set forth in Section 2.3 of the Stalking Horse Purchase
Agreement (the “Assumed Liabilities”) pursuant to the Stalking Horse Purchase Agreement upon
the closing of the Sale (the “Closing”), (c) authorizing the assumption and assignment of executory
contracts set forth on Exhibit 2 attached hereto, as the same may be subsequently modified
2 Capitalized terms used but not otherwise defined herein have the meaning given to such terms in the Stalking
Horse Purchase Agreement and the Bidding Procedures Order, as applicable.
3
(Page | 4)
pursuant to the terms of the Stalking Horse Purchase Agreement (each, an “Assigned Contract,”
and, collectively, the “Assigned Contracts”), upon the Closing, subject to the cure of any defaults
arising under any Assigned Contract in accordance with the Stalking Horse Purchase Agreement
(the “Cure Costs”), and (d) granting related relief, all as more fully set forth in the Motion; and
this Court having entered the Order (I) Approving the Auction and Bidding Procedures,
(II) Approving Stalking Horse Bid Protections, (III) Scheduling Bid Deadlines and an Auction,
(IV) Approving the Form and Manner of Notice Thereof, and (V) Granting Related Relief
[Docket No. 92] (the “Bidding Procedures Order”); and the Debtors having conducted an auction
(the “Auction”) for the Acquired Assets; and the Debtors having determined that the Purchaser has
submitted the highest or otherwise best bid for the Acquired Assets and determined that the
Purchaser is the Successful Bidder [and that [●] is the Backup Bidder (as defined in the Bidding
Procedures),] in accordance with the Bidding Procedures; and the Court having held a hearing on
June 27, 2023 (the “Sale Hearing”), at which time all interested parties were offered an opportunity
to be heard with respect to the Motion; and the Court having reviewed and considered the Motion,
the Stalking Horse Purchase Agreement, and any and all objections to the Sale, the Stalking Horse
Purchase Agreement and the other Transaction Documents filed in accordance with the Bidding
Procedures Order; and the Court having heard statements of counsel and the evidence presented
in support of the relief requested in the Motion at the Sale Hearing; and upon the First Day
Declaration, the Kurtz Declaration, and the Frejka Declaration; and it appearing that due notice of
the Motion, the Sale Hearing, the Stalking Horse Purchase Agreement, and the Sale has been
(Page | 5)
provided; and it appearing that the relief requested in the Motion is in the best interests of the
Debtors, their estates, their stakeholders, and all other parties in interest; and it appearing that the
Court has jurisdiction over this matter; and it appearing that the legal and factual bases set forth in
the Motion and at the Sale Hearing establish just cause for the relief granted herein; and after due
deliberation, it is hereby
FOUND, CONCLUDED, AND DETERMINED THAT:
Jurisdiction, Venue, and Final Order
A. This Court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334. This is a core
proceeding pursuant to 28 U.S.C. § 157(b). Venue is proper in this District and in this Court
pursuant to 28 U.S.C. §§ 1408 and 1409.
B. This Sale Order constitutes a final and appealable order within the meaning of 28
U.S.C. § 158(a). Notwithstanding Bankruptcy Rules 6004(h) and 6006(d), and to any extent
necessary under Bankruptcy Rule 9014 and Federal Rule of Civil Procedure 54(b), as made
applicable by Bankruptcy Rule 7054, the Court expressly finds that there is no just reason for delay
in the implementation of this Sale Order, and expressly directs entry of judgment as set forth
herein.
C. 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 9014. To the extent any of the following findings of fact constitute
(Page | 6)
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.
Notice of the Motion, Auction, Sale Hearing,

Stalking Horse Purchase Agreement and Sale, and the Cure Costs
D. As evidenced by the First Day Declaration, the Kurtz Declaration, the Frejka
Declaration, and the affidavits of service and publication previously filed with this Court, proper,
timely, adequate, and sufficient notice of the Motion, the Auction, the Sale Hearing, the Stalking
Horse Purchase Agreement, and the Sale has been provided in accordance with sections 102(1),
105, 363, and 365 of the Bankruptcy Code and Bankruptcy Rules 2002, 6004, 6006, 9007 and
9014. The Debtors have complied with all obligations to provide notice of the Motion, the
Auction, the Sale Hearing, the Stalking Horse Purchase Agreement, and the Sale as required by
the Bidding Procedures Order. The foregoing notice was good, sufficient, and appropriate under
the circumstances, and no other or further notice of the Motion, the Auction, the Sale Hearing, the
Stalking Horse Purchase Agreement, or the Sale is required.
E. A reasonable opportunity to object or to be heard regarding the relief requested in
the Motion was afforded to all interested persons and entities.
F. In accordance with the Bidding Procedures Order, the Debtors have served a notice
of their intent to assume and assign the Assigned Contracts and of the Cure Payments upon each
counterparty to an Assigned Contract. The service and provision of such notice was good,
sufficient, and appropriate under the circumstances and no further notice need be given in respect
(Page | 7)
of assumption and assignment of the Assigned Contracts or establishing Cure Costs for the
respective Assigned Contracts. Counterparties to the Assigned Contracts have had an adequate
opportunity to object to assumption and assignment of the applicable Assigned Contracts and the
Cure Costs set forth in the notice (including objections related to the adequate assurance of future
performance and objections based on whether applicable law excuses the counterparty from
accepting performance by, or rendering performance to, the Purchaser (or its designee) for
purposes of section 365(c)(1) of the Bankruptcy Code). All objections, responses, or requests for
adequate assurance, if any, have been resolved, overruled, or denied, as applicable.
Highest and Best Offer
G. As demonstrated by the Kurtz Declaration, the evidence proffered or adduced at the
Sale Hearing, and the representations of counsel made on the record at the Sale Hearing,
the Debtors conducted a sale process in accordance with, and have, along with the Purchaser,
complied in all respects with, the Bidding Procedures Order and afforded a full, fair, and
reasonable opportunity for any interested party to make a higher or otherwise better offer to
purchase the Acquired Assets and assume the Assumed Liabilities.
H. (i) The Debtors and their advisors engaged in a robust and extensive marketing and
sale process, both prior to the commencement of these chapter 11 cases and through the
postpetition sale process in accordance with the Bidding Procedures Order and the sound exercise
of the Debtors’ business judgment, as more fully detailed in the First Day Declaration and the
(Page | 8)
Kurtz Declaration; (ii) the Debtors conducted a fair and open sale process; (iii) the sale process,
the Bidding Procedures, and the Auction were non-collusive, duly noticed, and provided a full,
fair, reasonable, and adequate opportunity for any entity that either expressed an interest in
acquiring the Acquired Assets, or who the Debtors believed may have had an interest in acquiring
the Acquired Assets, to make an offer to purchase the Debtors’ assets, including, without
limitation the Acquired Assets; (iv) the Debtors and the Purchaser have negotiated and undertaken
their roles leading to the entry into the Stalking Horse Purchase Agreement in a diligent, non-
collusive, fair, reasonable, and good faith manner; and (v) the sale process conducted by the
Debtors pursuant to the Bidding Procedures Order and the Bidding Procedures resulted in the
highest or otherwise best value for the Acquired Assets for the Debtors and their estates, was in
the best interest of the Debtors, their estates, their creditors, and all parties in interest, and any
other transaction would not have yielded as favorable a result. There is no legal or equitable
reason to delay entry into the Stalking Horse Purchase Agreement and the transactions
contemplated therein.
I. [The Debtors have also determined, in a valid and sound exercise of their business
judgment and in consultation with their advisors and the Consultation Parties, that the next highest
or otherwise best Qualified Bid (as defined in the Bidding Procedures) (the “Designated Back-Up
Bid”) for all or substantially all of the assets was that of [●] (the “Designated Back-Up Bidder”)].
J. Approval of the Stalking Horse Purchase Agreement, and the consummation of the
Sale contemplated thereby, is in the best interests of the Debtors, their respective creditors, estates,
(Page | 9)
and other parties in interest. The Debtors have demonstrated good, sufficient, and sound business
reasons and justifications for entering into the Sale and the performance of their obligations under
the Stalking Horse Purchase Agreement.
K. The consummation of the Sale outside a plan of reorganization pursuant to the
Stalking Horse Purchase Agreement neither impermissibly restructures the rights of the Debtors’
creditors nor impermissibly dictates the terms of a plan of reorganization or liquidation for the
Debtors. The Sale does not constitute a sub rosa chapter 11 plan for which approval has been
sought without the protections that a disclosure statement would afford.
L. Entry of an order approving the Stalking Horse Purchase Agreement and all the
provisions thereof is a necessary condition precedent to Purchaser’s consummation of the Sale,
as set forth in the Stalking Horse Purchase Agreement.
Personally Identifiable Information
M. The sale, conveyance, assignment and transfer of Personal Information pursuant to
the terms of the Stalking Horse Purchase Agreement complies with the terms of the Debtors’
policies regarding the transfer of such personally identifiable information as of the Petition Date
and, as a result, consummation of the Sale as set forth in the Stalking Horse Purchase Agreement
is permitted pursuant to section 363(b)(1)(A) of the Bankruptcy Code. Accordingly, appointment
of a consumer privacy ombudsman in accordance with sections 363(b)(1) or 332 of the

(Page | 10)
Bankruptcy Code is not required with respect to the Sale and the other transactions contemplated
by the Stalking Horse Purchase Agreement, all as more fully set forth in the Frejka Declaration.
Good Faith of Purchaser
N. The consideration to be paid by the Purchaser under the Stalking Horse Purchase
Agreement was negotiated at arm’s-length, in good faith and without collusion pursuant to section
363(m) of the Bankruptcy Code and constitutes reasonably equivalent value and fair and adequate
consideration for the Acquired Assets. Specifically: (i) the Purchaser recognized that the Debtors
were free to deal with any other party interested in purchasing the Acquired Assets;
(ii) the Purchaser complied in all respects with the provisions in the Bidding Procedures Order in
negotiating and entering into the Stalking Horse Purchase Agreement and the other Transaction
Documents, and the Stalking Horse Purchase Agreement, the other Transaction Documents, and
the transactions described therein comply with the Bidding Procedures Order; (iii) the Purchaser
agreed to subject any bid to the competitive bid procedures set forth in the Bidding Procedures
Order; (iv) all payments made by the Purchaser in connection with the Sale have been disclosed
in the Stalking Horse Purchase Agreement; (v) no common identity of directors, officers, or
controlling stockholders exists among the Purchaser and the Debtors; (vi) the negotiation and
execution of the Stalking Horse Purchase Agreement and the other Transaction Documents were
at arm’s-length and in good faith, and at all times each of the Purchaser and the Debtors were
represented by competent counsel of their choosing; (vii) the Purchaser did not in any way induce
(Page | 11)
or cause the chapter 11 filing of the Debtors; and (viii) the Purchaser has not acted in a collusive
manner with any person. The Purchaser will be acting in good faith within the meaning of section
363(m) of the Bankruptcy Code in closing the transactions contemplated by the Stalking Horse
Purchase Agreement and the other Transaction Documents. The terms and conditions set forth in
the Stalking Horse Purchase Agreement are fair and reasonable under the circumstances and were
not entered into for the purpose of, nor do they have the effect of, hindering, delaying, or
defrauding the Debtors or their creditors under any applicable laws.
O. The Debtors, the Purchaser, and each of their respective management, boards of
directors, members, officers, directors, employees, agents, and representatives, have acted in good
faith. The Stalking Horse Purchase Agreement and the other Transaction Documents, and each
of the transactions contemplated therein, were negotiated, proposed, and entered into by the
Debtors and the Purchaser in good faith, without collusion or fraud, and from arm’s-length
bargaining positions. The Purchaser is a “good faith purchaser” within the meaning of section
363(m) of the Bankruptcy Code, and, as such, is entitled to all the protections afforded thereby.
No Fraudulent Transfer
P. The consideration provided by the Purchaser pursuant to the Stalking Horse
Purchase Agreement for its purchase of the Acquired Assets and the assumption of the Assumed
Liabilities constitutes reasonably equivalent value and fair consideration under the Bankruptcy
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Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act, and under
the laws of the United States, any state, territory, possession, or the District of Columbia.
Q. Neither the Purchaser nor its past, present and future subsidiaries, parents,
divisions, affiliates, agents, representatives, insurers, attorneys, successors and assigns, nor any
of its nor their respective directors, managers, officers, employees, shareholders, members,
agents, representatives, attorneys, contractors, subcontractors, independent contractors, owners,
insurance companies or partners (collectively, the “Purchaser Parties”) is a continuation of the
Debtors or their respective estates and no Purchaser Party is holding itself out to the public as a
continuation of the Debtors or their respective estates and the Sale does not amount to a
consolidation, merger, or de facto merger of the Purchaser (or any other Purchaser Party) and the
Debtors.
Validity of Transfer
R. The Debtors’ boards of directors have authorized the execution and delivery of the
Stalking Horse Purchase Agreement and the Sale of the Acquired Assets to the Purchaser (or its
designee). The Debtors and their affiliates (i) have full corporate power and authority to execute
and deliver the Stalking Horse Purchase Agreement and all other documents contemplated
thereby, as applicable, (ii) have all of the power and authority necessary to consummate the Sale,
and (iii) have taken all action necessary to authorize and approve the Purchase Agreement and to
consummate the Sale, and no further consents or approvals, other than those expressly provided
(Page | 13)
for in the Purchase Agreement, are required for the Debtors to consummate the transactions
contemplated by the Stalking Horse Purchase Agreement, except as otherwise set forth in the
Stalking Horse Purchase Agreement. The Acquired Assets constitute property of the Debtors’
estates within the meaning of section 541(a) of the Bankruptcy Code and title thereto is presently
vested in the Debtors’ estates.
Section 363(f) Is Satisfied
S. The Sale of the Acquired Assets to the Purchaser (or its designee) and the
assumption and assignment to the Purchaser (or its designee) of the Assigned Contracts under the
terms of the Stalking Horse Purchase Agreement meets the applicable provisions of section 363(f)
of the Bankruptcy Code such that the Sale of the Acquired Assets will be free and clear of any
and all liens, claims, interests, and encumbrances, and will not subject any Purchaser Party to any
liability for any liens, claims, interests, and encumbrances whatsoever (including, without
limitation, under any theory of equitable law, antitrust, or successor or transferee liability), except
as expressly provided in the Stalking Horse Purchase Agreement with respect to the Assumed
Liabilities. All holders of liens, claims, interests, and encumbrances who did not object, or
withdrew their objections to the Sale, are deemed to have consented to the Sale pursuant to section
363(f)(2) of the Bankruptcy Code, and all holders of liens, claims, interests, and encumbrances
are adequately protected—thus satisfying section 363(e) of the Bankruptcy Code—by having
their liens, claims, interests, and encumbrances, if any, attach to the proceeds of the Sale
(Page | 14)
ultimately attributable to the property against or in which they assert liens, claims, interests, and
encumbrances, or other specifically dedicated funds, in the same order of priority and with the
same validity, force, and effect that such holder had prior to the Sale, subject to any rights, claims,
and defenses of the Debtors or their estates, as applicable. Those holders of claims who did object
and that have an interest in the Acquired Assets fall within one or more of the other subsections
of section 363(f) of the Bankruptcy Code.
T. The transfer of the Acquired Assets to the Purchaser (or its designee) under the
Stalking Horse Purchase Agreement will be a legal, valid, and effective transfer of all of the legal,
equitable, and beneficial right, title, and interest in and to the Acquired Assets free and clear of
all liens, claims, interests, and encumbrances, except as expressly provided in the Purchase
Agreement with respect to the Assumed Liabilities. The Debtors may sell their interests in the
Acquired Assets free and clear of all liens, claims, interests, and encumbrances because, in each
case, one or more of the standards set forth in section 363(f) has been satisfied. The Purchaser
would not have entered into the Transaction Documents and would not consummate the
transactions contemplated thereby, including, without limitation, the Sale and the assumption and
assignment of the Assigned Contracts (i) if the transfer of the Acquired Assets was not free and
clear of all interest of any kind or nature whatsoever, including, without limitation, rights or claims
based on any successor, transferee, derivative or vicarious liability or any similar theory and/or
applicable state or federal law or otherwise or (ii) if the Purchaser or any of its affiliates or
designees would, or in the future could, be liable for any interests, including, without limitation,
(Page | 15)
rights or claims based on any successor, transferee, derivative or vicarious liability or any similar
theory and/or applicable state or federal law or otherwise, in each case subject only to the
Assumed Liabilities. Not transferring the Acquired Assets free and clear of all interests of any
kind or nature whatsoever, including, without limitation, rights or claims based on any successor,
transferee, derivative or vicarious liability or any similar theory and/or applicable state or federal
law or otherwise (subject only to the Assumed Liabilities), would adversely impact the Debtors’
efforts to maximize the value of their estates.
Assumption and Assignment of the Assigned Contracts
U. The assumption and assignment of the Assigned Contracts pursuant to the terms of
this Sale Order are integral to the Stalking Horse Purchase Agreement, are in the best interests of
the Debtors and their respective estates, creditors, and other parties in interest, and represent the
reasonable exercise of sound and prudent business judgment by the Debtors.
V. The Debtors have met all requirements of section 365(b) of the Bankruptcy Code
for each of the Assigned Contracts. The Debtors have (i) cured and/or provided adequate
assurance of cure of any default existing prior to the Closing under all of the Assigned Contracts,
within the meaning of section 365(b)(1)(A) of the Bankruptcy Code and (ii) provided
compensation or adequate assurance of compensation to any counterparty for actual pecuniary
loss to such party resulting from a default prior to the Closing under any of the Assigned
Contracts. The Purchaser has provided adequate assurance of future performance within the
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meaning of sections 365(b)(1)(C) and 365(f)(2)(B) and in accordance with the Bidding
Procedures to the extent that any such assurance is required and not waived by the counterparties
to such Assigned Contracts.
W. At any time prior to the rejection of an executory contract, the Debtors shall have
the right, in accordance with the Bidding Procedures Order, to serve a Supplemental Assumption
Notice (as defined in the Bidding Procedures Order) upon any non-Debtor counterparty thereto
indicating the Debtors’ intent to assume and assign such executory contract. The objection
deadline for all Assigned Contracts, other than those subject to a Supplemental Assumption
Notice, lapsed on [•], 2023. Objections, if any, to the proposed assumption and assignment or the
Cure Costs proposed in any Supplemental Assumption Notice with respect thereto, must (i) be in
writing, (ii) comply with the applicable provisions of the Bankruptcy Rules, the Local Rules, and
the Case Management Order, (iii) state with specificity the nature of the objection and, if the
objection pertains to the proposed Cure Costs, the correct Cure Costs alleged by the objecting
counterparty, together with any applicable and appropriate documentation in support thereof, and
(iv) be filed with the Court and served upon, so as to be actually received by, counsel to the
Debtors and counsel to the Stalking Horse Bidder. If the parties cannot agree on a resolution, the
Debtors will seek an expedited hearing before the Court to determine the Cure Costs and approve
the assumption and assignment to Purchaser. If there is no objection prior to the applicable
objection deadline, then the counterparties will be deemed to have consented to the assumption
and assignment to Purchaser and the Cure Costs, and such assumption and assignment to
(Page | 17)
Purchaser and the Cure Costs shall be deemed approved by this Sale Order without further order
of this Court.
X. The (i) transfer of the Acquired Assets to the Purchaser and (ii) assignment to the
Purchaser of the Assigned Contracts, will not subject the Purchaser or any of its affiliates or
designees to any liability whatsoever that arises prior to the Closing or by reason of such transfer
under the laws of the United States, any state, territory, or possession thereof, or the District of
Columbia, based, in whole or in part, directly or indirectly, on any theory of law or equity,
including, without limitation, any theory of equitable law, any theory of antitrust, successor,
transferee, derivative, or vicarious liability or any similar theory and/or applicable state or federal
law or otherwise.
Prompt Consummation
Y. Based on the record of the Sale Hearing, and for the reasons stated on the record at
the Sale Hearing, the sale of the Acquired Assets must be approved and consummated promptly
to preserve the value of the Acquired Assets. Time, therefore, is of the essence in effectuating the
Stalking Horse Purchase Agreement. As such, the Debtors and the Purchaser intend to close the
sale of the Acquired Assets as soon as reasonably practicable. The Debtors have demonstrated
compelling circumstances and a good, sufficient, and sound business purpose and justification for
the immediate approval and consummation of the Stalking Horse Purchase Agreement.
(Page | 18)
Accordingly, there is sufficient cause to waive the stay provided in the Bankruptcy Rules 6004(h)
and 6006(d).
NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED THAT:
General Provisions
1. The Motion is GRANTED to the extent set forth herein.
2. All objections to or reservation of rights with respect to the Motion or the relief
requested therein that have not been withdrawn or resolved are overruled with prejudice. All
persons and entities who did not object or withdraw their objections to the Motion are deemed to
have consented pursuant to section 363(f)(2) of the Bankruptcy Code.
3. The Stalking Horse Purchase Agreement and the other Transaction Documents, and
all terms and conditions thereof, are hereby approved in all respects. The failure to specifically
include any particular provision of the Stalking Horse Purchase Agreement or the Transaction
Documents in this Sale Order shall not diminish or impair the effectiveness of such provision.
4. [The Designated Back-Up Bidder is hereby approved as the Back-Up Bidder (as
defined in the Bidding Procedures), and the Designated Back-Up Bid is hereby approved and
authorized as the Back-Up Bid (as defined in the Bidding Procedures). To the extent necessary,
the terms and conditions of the Back-Up Bid will be fully determined and approved at a later date
pursuant to a separate sale order consistent with the terms of the Back-Up Bid.]
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Transfer of the Acquired Assets as set forth in the Purchase Agreement
5. The Debtors are authorized and directed to (a) take any and all actions necessary or
appropriate to perform, consummate, implement, and close the Sale in accordance with the terms
and conditions set forth in the Transaction Documents and this Sale Order, (b) assume and assign
any and all Assigned Contracts, and (c) take all further actions and execute and deliver the
Transaction Documents and any and all additional instruments and documents that may be
necessary or appropriate to implement the Stalking Horse Purchase Agreement and the other
Transaction Documents and consummate the Sale in accordance with the terms thereof, all without
further order of the Court.
6. The Purchaser is not acquiring any of the Excluded Assets or assuming any of the
Excluded Liabilities.
7. All persons and entities are prohibited and enjoined from taking any action to
adversely affect or interfere with, or which would be inconsistent with, the ability of the Debtors
to transfer the Acquired Assets to the Purchaser (or its designee) in accordance with the Stalking
Horse Purchase Agreement, the other Transaction Document and this Sale Order.
8. At Closing, all of the Debtors’ right, title, and interest in and to, and possession of,
the Acquired Assets shall be immediately vested in the Purchaser (or its designee) pursuant to
sections 105(a), 363(b), 363(f), and 365 of the Bankruptcy Code. Such transfer shall constitute a
legal, valid, enforceable, and effective transfer of the Acquired Assets. All persons or entities,
presently or at or after the Closing, in possession of some or all of the Acquired Assets, are directed
(Page | 20)
to surrender possession of any and all portions of the Acquired Assets to the Purchaser (or its
designee) or its respective designees on the Closing or at such time thereafter as the Purchaser (or
its designee) may request.
9. This Sale Order (a) shall be effective as a determination that, as of the Closing,
(i) no claims other than the Assumed Liabilities will be assertable against any Purchaser Party or
any of its respective assets, (ii) the Acquired Assets shall have been transferred to the Purchaser
(or its designee) free and clear of all liens, claims, interests, and encumbrances, subject only to the
Assumed Liabilities, and (iii) the conveyances described herein have been effected, and (b) is and
shall be binding upon and govern the acts of all entities, including, without limitation, all filing
agents, filing officers, registrars of patents, trademarks, or other intellectual property,
administrative agencies, governmental departments, secretaries of state, federal and local officials,
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; and each of the foregoing persons and entities is hereby directed to accept for filing
any and all of the documents and instruments necessary and appropriate to consummate the
transactions contemplated by the Stalking Horse Purchase Agreement and the other Transaction
Documents. The Acquired Assets are sold free and clear of any reclamation rights. All liens,
claims, interests, and encumbrances on the Acquired Assets shall attach to the proceeds of the Sale
ultimately attributable to the property against which such liens, claims, interests, and
encumbrances applied or other specifically dedicated funds, in the same order of priority and with
(Page | 21)
the same validity, force, and effect that such liens, claims, interests, and encumbrances applied
prior to the Sale, subject to any rights, claims, and defenses of the Debtors or their estates, as
applicable, or as otherwise provided herein.
10. Except as otherwise provided in the Stalking Horse Purchase Agreement, all
persons and entities (and their respective successors and assigns), including, but not limited to, all
debt security holders, equity security holders, affiliates, governmental, tax, and regulatory
authorities, lenders, customers, vendors, employees, trade creditors, litigation claimants, and other
creditors holding claims arising under or out of, in connection with, or in any way relating to, the
Debtors, the Acquired Assets, and the ownership, sale, or operation of the Acquired Assets prior
to Closing or the transfer of the Acquired Assets to the Purchaser (or its designee), are hereby
forever barred, estopped, and permanently enjoined from asserting such claims against any
Purchaser Party and its property (including, without limitation, the Acquired Assets). Following
the Closing, no holder of any claim or interest shall interfere with the Purchaser’s (or its
designee’s) title to or use and enjoyment of the Acquired Assets based on or related to any such
claim or interest, or based on any action the Debtor may take in their Chapter 11 cases.
11. If any person or entity that has filed financing statements, mortgages, mechanic’s
claims, lis pendens, or other documents or agreements evidencing claims against the Debtors or in
the Acquired Assets shall not have delivered to the Debtors prior to the Closing of the Sale, in
proper form for filing and executed by the appropriate parties, termination statements, instruments
of satisfaction, and/or releases of all liens, claims, interests, and encumbrances that the person or
(Page | 22)
entity has with respect to the Debtors or the Acquired Assets or otherwise, then only with regard
to the Acquired Assets that are purchased by the Purchaser (or its designee) pursuant to the Stalking
Horse Purchase Agreement and this Sale Order, (a) the Debtors are hereby authorized and directed
to execute and file such statements, instruments, releases, and other documents on behalf of the
person or entity with respect to the Acquired Assets, (b) the Purchaser (or its designee) is hereby
authorized to file, register, or otherwise record a certified copy of this Sale Order, which, once
filed, registered, or otherwise recorded, shall constitute conclusive evidence of the release of all
liens, claims, interests, and encumbrances against the Purchaser Parties and the Acquired Assets,
and (c) upon consummation of the Sale, the Purchaser (or its designee) may seek in this Court or
any other court to compel appropriate parties to execute termination statements, instruments of
satisfaction, and releases of all liens, claims, interests, and encumbrances that are extinguished or
otherwise released pursuant to this Sale Order under section 363 of the Bankruptcy Code, and any
other provisions of the Bankruptcy Code, with respect to the Acquired Assets. This Sale Order is
deemed to be in recordable form sufficient to be placed in the filing or recording system of each
and every federal, state, or local government agency, department, or office. Notwithstanding the
foregoing, the provisions of this Sale Order authorizing the Sale and assignment of the Acquired
Assets free and clear of liens, claims, interests, and encumbrances shall be self-executing and
neither the Debtors nor the Purchaser (or its designee) shall be required to execute or file releases,
termination statements, assignments, consents, or other instruments to effectuate, consummate,
and implement the provisions of this Sale Order.

(Page | 23)
No Successor or Transferee Liability
12. No Purchaser Party shall be deemed, as a result of any action taken in connection
with the Stalking Horse Purchase Agreement, the consummation of the Sale contemplated by the
Stalking Horse Purchase Agreement, or the transfer, operation, or use of the Acquired Assets to
(a) be a legal successor, or otherwise be deemed a successor to the Debtors (other than, for the
Purchaser, with respect to any Assumed Liabilities arising after the Closing), (b) have, de facto or
otherwise, merged with or into the Debtors, or (c) be an alter ego or a mere continuation or
substantial continuation of the Debtors or the enterprise of the Debtors including, without
limitation, within the meaning of any foreign, federal, state, or local revenue law, pension law, the
Employee Retirement Income Security Act of 1974 (“ERISA”), tax law, labor law, products
liability law, employment law, environmental law, or other law, rule, or regulation (including,
without limitation, filing requirements under any such laws, rules or regulations), or under any
products liability law or doctrine with respect to the Debtors’ liability under such law, rule, or
regulation.
13. Immediately prior to the Closing, the Purchaser was not an “insider” or “affiliate”
of the Debtors, as those terms are defined in the Bankruptcy Code, and no common identity of
incorporators, directors or controlling stockholders existed between the Purchaser and the Debtors.
14. Other than as expressly set forth in the Stalking Horse Purchase Agreement, no
Purchaser Party shall have any responsibility for (a) any liability or other obligation of the Debtors
or related to the Acquired Assets or (b) any claims against the Debtors or any of their predecessors
(Page | 24)
or affiliates. Except as expressly provided in the Stalking Horse Purchase Agreement with respect
to the Purchaser, no Purchaser Party shall have any liability whatsoever with respect to the
Debtors’ (or their predecessors’ or affiliates’) respective businesses or operations or any of the
Debtors’ (or their predecessors’ or affiliates’) obligations (as defined herein, “Successor or
Transferee Liability”) based, in whole or part, directly or indirectly, on any theory of successor or
vicarious liability of any kind or character, or based upon any theory of antitrust, environmental,
successor, or transferee liability, de facto merger or substantial continuity, labor and employment
or products liability, whether known or unknown as of the Closing, now existing or hereafter
arising, asserted or unasserted, fixed or contingent, liquidated or unliquidated, including, without
limitation, liabilities on account of (a) any taxes arising, accruing, or payable under, out of, in
connection with, or in any way relating to the Acquired Assets or the Assumed Liabilities prior to
the Closing or in respect of pre-Closing periods or (b) any plan, agreement, practice, policy, or
program, whether written or unwritten, providing for pension, retirement, health, welfare,
compensation or other employee benefits which is or has been sponsored, maintained or
contributed to by any Debtor or with respect to which any Debtor has any liability, whether or not
contingent, including, without limitation, any “multiemployer plan” (as defined in Section 3(37)
of ERISA) or “pension plan” (as defined in Section 3(2) of ERISA) to which any Debtor has at
any time contributed, or had any obligation to contribute. No Purchaser Party shall have any
liability or obligation under any applicable law, including, without limitation, (a) the WARN Act
(29 U.S.C. §§ 2101 et seq.), (b) the Comprehensive Environmental Response Compensation and
(Page | 25)
Liability Act, (c) the Age Discrimination and Employment Act of 1967 (as amended), (d) the
Federal Rehabilitation Act of 1973 (as amended), (e) the National Labor Relations Act, 29 U.S.C.
§ 151 et seq. (the “NLRA”), or (f) any foreign, federal, state, or local labor, employment or
environmental law, by virtue of the Purchaser’s purchase of the Acquired Assets, assumption of
the Assumed Liabilities, or hiring of certain employees of the Debtors pursuant to the terms of the
Stalking Horse Purchase Agreement. Without limiting the foregoing, no Purchaser Party shall
have any liability or obligation with respect to any environmental liabilities of the Debtors or any
environmental liabilities associated with the Acquired Assets.
15. Effective upon the Closing, all persons and entities are forever prohibited and
enjoined from commencing or continuing in any matter any action or other proceeding, whether
in law or equity, in any judicial, administrative, arbitral, or other proceeding against any Purchaser
Party or their respective assets (including, without limitation, the Acquired Assets), with respect
to any (a) claim in these Chapter 11 cases or in connection with or related to the Sale or the Debtors
or (b) Successor or Transferee Liability including, without limitation, the following actions with
respect to clauses (a) and (b): (i) commencing or continuing any action or other proceeding
pending or threatened; (ii) enforcing, attaching, collecting, or recovering in any manner any
judgment, award, decree, or order; (iii) creating, perfecting, or enforcing any lien, claim, interest,
or encumbrance; (iv) asserting any setoff, right of subrogation, or recoupment of any kind;
(v) commencing or continuing any action, in any manner or place, that does not comply with, or
is inconsistent with, the provisions of this Sale Order or other orders of this Court, or the
(Page | 26)
agreements or actions contemplated or taken in respect hereof; or (vi) revoking, terminating,
failing, or refusing to renew any license, permit, or authorization to operate any business in
connection with the Acquired Assets or conduct any of the businesses operated with respect to
such assets.
Good Faith of Purchaser
16. The Sale contemplated by the Purchase Agreement is undertaken by the Purchaser
without collusion and in good faith, as that term is defined in section 363(m) of the Bankruptcy
Code, and accordingly, the reversal or modification on appeal of the authorization provided herein
to consummate the Sale shall not affect the validity of the Sale (including, without limitation, the
assumption and assignment of the Assigned Contracts), unless such authorization and
consummation of such Sale are duly and properly stayed pending such appeal.
17. Neither the Debtors nor the Purchaser have engaged in any action or inaction that
would cause or permit the Sale to be avoided or costs or damages to be imposed under section
363(n) of the Bankruptcy Code. The consideration provided by the Purchaser for the Acquired
Assets under the Purchase Agreement is fair and reasonable and the Sale may not be avoided, and
costs and damages may not be imposed, under section 363(n) of the Bankruptcy Code.
Assumption and Assignment of Assigned Contracts
18. The Debtors are authorized and directed at the Closing to assume and assign each
of the Assigned Contracts to the Purchaser (or its designee) pursuant to sections 105(a) and 365 of
(Page | 27)
the Bankruptcy Code and to execute and deliver to the Purchaser (or its designee) such documents
or other instruments as may be necessary to assign and transfer the Assigned Contracts to the
Purchaser (or its designee). The payment of the applicable Cure Costs (if any) shall (a) effect a
cure of all defaults existing thereunder as of the Closing and (b) compensate for any actual
pecuniary loss to such counterparty resulting from such default.
19. Pursuant to section 365(f) of the Bankruptcy Code, subject to the payment of the
applicable Cure Costs, the Assigned Contracts to be assumed and assigned under the Stalking
Horse Purchase Agreement shall be assigned and transferred to, and remain in full force and effect
for the benefit of, the Purchaser (or its designee) notwithstanding any provision in the contracts or
other restrictions prohibiting their assignment or transfer. Any provisions in any Assigned
Contract that prohibit or condition the assignment of such Assigned Contract to the Purchaser (or
its designee) or allow the counterparty to such Assigned Contract to terminate, recapture, impose
any penalty, condition on renewal or extension, or modify any term or condition upon the
assignment of such Assigned Contract to the Purchaser (or its designee), constitute unenforceable
anti-assignment provisions that are void and of no force and effect. All other requirements and
conditions under sections 363 and 365 of the Bankruptcy Code for the assumption by the Debtors
and assignment to the Purchaser (or its designee) of the Assigned Contracts have been satisfied.
Upon the Closing, in accordance with sections 363 and 365 of the Bankruptcy Code, the Purchaser
(or its designee) shall be fully and irrevocably vested with all right, title, and interest of the Debtors
under the Assigned Contracts, and such Assigned Contracts shall remain in full force and effect
(Page | 28)
for the benefit of the Purchaser (or its designee). Each counterparty to the Assigned Contracts
shall be forever barred, estopped, and permanently enjoined from (a) asserting against the Debtors
or any Purchaser Party or their respective property any assignment fee, acceleration, default,
breach or claim or pecuniary loss, or condition to assignment existing, arising or accruing as of the
Closing or arising by reason of the Closing, including, without limitation, any breach related to or
arising out of change-in-control provisions in such Assigned Contracts, or any purported written
or oral modification to the Assigned Contracts and (b) asserting against any Purchaser Party (or its
respective property, including, without limitation, the Acquired Assets) any claim, counterclaim,
defense, breach, condition, or setoff asserted, or assertable against the Debtors existing as of the
Closing or arising by reason of the Closing except for the Assumed Liabilities.
20. Upon the Closing and the payment of the relevant Cure Costs, if any, the Purchaser
(or its designee) shall be deemed to be substituted for the Debtors as a party to the applicable
Assigned Contracts and the Debtors shall be released, pursuant to section 365(k) of the Bankruptcy
Code, from any liability under the Assigned Contracts. There shall be no assignment fees,
increases, or any other fees charged to the Purchaser (or its designee) or the Debtors as a result of
the assumption and assignment of the Assigned Contracts. The failure of the Debtors or the
Purchaser (or its designee) to enforce at any time one or more terms or conditions of any Assigned
Contract shall not be a waiver of such terms or conditions or of the right of the Debtors or the
Purchaser (or its designee), as the case may be, to enforce every term and condition of such
Assigned Contract. The validity of the assumption and assignment of any Assigned Contract to
(Page | 29)
the Purchaser (or its designee) shall not be affected by any existing dispute between the Debtors
and any counterparty to such Assigned Contract. Any party that may have had the right to consent
to the assignment of any Assigned Contract is deemed to have consented for the purposes of section
365(e)(2)(A) of the Bankruptcy Code.
21. All defaults or other obligations of the Debtors under the Assigned Contracts
arising or accruing after the Sale Objection Deadline and 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 cured on the Closing, or as soon thereafter as reasonably practicable.
22. The assignments of each of the Assigned Contracts are made in good faith under
sections 363(b) and (m) of the Bankruptcy Code.
Other Provisions
23. To the maximum extent permitted by applicable law, and in accordance with the
Stalking Horse Purchase Agreement, the Purchaser (or its designee) shall be authorized, as of the
Closing, to operate under any license, permit, registration, and governmental authorization or
approval (collectively, the “Licenses”) of the Debtors with respect to the Acquired Assets. To the
extent the Purchaser (or its designee) cannot operate under any Licenses in accordance with the
previous sentence, such Licenses shall be in effect while the Purchaser (or its designee), with
assistance from the Debtors, works promptly and diligently to apply for and secure all necessary
government approvals for new issuance of Licenses to the Purchaser (or its designee). The Debtors
(Page | 30)
shall maintain the Licenses in good standing to the fullest extent allowed by applicable law for the
Purchaser’s benefit until equivalent new Licenses are issued to the Purchaser (or its designee).
24. To the extent provided by section 525 of the Bankruptcy Code, no governmental
unit may revoke or suspend any permit or License relating to the Acquired Assets sold, transferred,
or conveyed to the Purchaser (or its designee) on account of the filing or pendency of these chapter
11 cases or the consummation of the Sale contemplated by the Stalking Horse Purchase
Agreement.
25. The automatic stay pursuant to section 362 of the Bankruptcy Code is hereby lifted
with respect to the Debtors to the extent necessary, without further order of the Court, (a) to allow
the Purchaser to give the Debtors any notice provided for in the Stalking Horse Purchase
Agreement, (b) to allow the Purchaser to take any and all actions permitted by the Stalking Horse
Purchase Agreement in accordance with the terms and conditions thereof, including, without
limitation, effectuating the Sale and the other transactions contemplated by the Stalking Horse
Purchase Agreement and (c) to otherwise implement the terms and provisions of the Stalking
Horse Purchase Agreement and this Sale Order.
26. The terms and provisions of the Stalking Horse Purchase Agreement, the other
Transaction Documents and this Sale Order shall be binding in all respects upon the Debtors, their
affiliates, their estates, all creditors of (whether known or unknown) and holders of equity interests
in any Debtor, any holders of claims against or on all or any portion of the Acquired Assets, all
counterparties to the Assigned Contracts, the Purchaser, and all of their respective successors and
(Page | 31)
assigns including, but not limited to, any subsequent trustee(s), examiner(s), or receiver(s)
appointed in any of the Debtors’ chapter 11 cases or upon conversion to Chapter 7 under the
Bankruptcy Code, as to which trustee(s), examiner(s), or receiver(s) such terms and provisions
likewise shall be binding. The Stalking Horse Purchase Agreement shall not be subject to rejection
or avoidance by the Debtors, their estates, their creditors, their shareholders, or any trustee(s),
examiner(s), or receiver(s).
27. The terms and provisions of this Sale Order and any actions taken pursuant hereto
shall survive entry of an order which may be entered: (a) confirming any chapter 11 plan in any
of these chapter 11 cases; (b) converting any of the chapter 11 cases to a case under chapter 7 of
the Bankruptcy Code; (c) dismissing any of the Chapter 11 cases; or (d) pursuant to which this
Court abstains from hearing any of the chapter 11 cases. The terms and provisions of this Sale
Order, notwithstanding the entry of any such orders described in (a)-(d) above, shall continue in
these chapter 11 cases, or following dismissal of these chapter 11 cases.
28. Each and every federal, state, and local governmental agency, department, or
official is hereby directed to accept any and all documents and instruments necessary and
appropriate to consummate the transactions contemplated by the Purchase Agreement.
29. The Stalking Horse Purchase Agreement and the Sale contemplated hereunder shall
not be subject to any bulk sales laws or any similar law of any state or jurisdiction.
30. The Stalking Horse Purchase Agreement may be modified, amended, or
supplemented by the parties thereto in accordance with the terms thereof, without further order of
(Page | 32)
the Court, provided that any such modification, amendment, or supplement does not, based on the
Debtors’ business judgment, and in consultation with the Consultation Parties (as defined in the
Bidding Procedures), have a material adverse effect on the Debtors’ estates or their creditors.
The Debtors shall provide the Consultation Parties with prior notice of any such modification,
amendment, or supplement of the Purchase Agreement. For the avoidance of doubt, all other
modifications, amendments, or supplements that have a material adverse effect on the Debtors’
estates or their creditors shall require Court approval.
31. For the avoidance of doubt, nothing herein shall modify, alter, impair, or otherwise
affect any of the provisions of the Final DIP Order or the DIP Documents (as defined in the Final
DIP Order), or the rights or remedies of the DIP Agent or the DIP Secured Parties under the DIP
Documents except with respect to the Acquired Assets.
32. All time periods set forth in this Sale Order shall be calculated in accordance with
Bankruptcy Rule 9006(a).
33. Notwithstanding the possible applicability of Bankruptcy Rules 6004(h), 6006(d),
7062, and 9014 or otherwise, the terms and conditions of this Sale Order shall be effective
immediately upon entry and the Debtors and the Purchaser are authorized to close the Sale
immediately upon entry of this Sale Order.
34. To the extent there is any conflict between the terms of this Sale Order and the
Stalking Horse Purchase Agreement, the terms of this Sale Order shall control. Nothing contained
in any chapter 11 plan hereinafter confirmed in these chapter 11 cases or any order confirming
(Page | 33)
such chapter 11 plan, or any other order of the Court, shall conflict with or derogate from the
provisions of the Stalking Horse Purchase Agreement or any other Transaction Document or the
terms of this Sale Order, unless otherwise agreed by the Debtors and the Purchaser.
35. The Court shall retain exclusive jurisdiction with respect to the terms and
provisions of this Sale Order and the Stalking Horse Purchase Agreement.

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Case 23-13359-VFP Doc 708 Filed 06/13/23 Entered 06/13/23 07:00:37 Desc Main

Document Page 1 of 102

KIRKLAND & ELLIS LLP COLE SCHOTZ P.C.

Co-Counsel for Debtors and

UNITED STATES BANKRUPTCY COURT

NOTICE OF SELECTION OF STALKING HORSE BIDDER

Relief [Docket No. 29] (the “Bidding Procedures Motion”).2

to the Bidding Procedures Order.

Horse Bidder, is attached hereto as Exhibit A.

PLEASE TAKE FURTHER NOTICE that the proposed Purchase Price is

$21,500,000.00 in cash consideration.

of the Stalking Horse Bidder of up to 2% of the proposed Purchase Price.3

the Bidding Procedures Order.

Tuesday, June 20, 2023 at 9:00 a.m. (prevailing Eastern Time).

at http://www.cases.kroll.com/bbby. You may also obtain copies of any filed documents by

fees set forth therein.

[Remainder of page intentionally left blank.]

Dated: June 13, 2023

KIRKLAND & ELLIS LLP

Co-Counsel for Debtors and Debtors

Stalking Horse Agreement

ASSET PURCHASE AGREEMENT

DATED AS OF JUNE 12, 2023

BED BATH & BEYOND INC.,

AND THE OTHER PARTIES SIGNATORY HERETO

ARTICLE I DEFINITIONS ............................................................................................................2

Section 1.1 Definitions..........................................................................................................2

ARTICLE II PURCHASE AND SALE ........................................................................................14

Section 2.1 Purchase and Sale of the Acquired Assets.......................................................14

ARTICLE III PURCHASE PRICE ...............................................................................................18

Section 3.1 Purchase Price..................................................................................................18

ARTICLE IV CLOSING ...............................................................................................................21

Section 4.1 Closing Date.....................................................................................................21

ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLERS................................22

Section 5.1 Organization and Qualification........................................................................22

Section 5.13 No Other Representations or Warranties .........................................................28

ARTICLE VI REPRESENTATIONS AND WARRANTIES OF BUYER..................................29

Section 6.1 Organization and Qualification........................................................................29

ARTICLE VII BANKRUPTCY COURT MATTERS..................................................................31

Section 7.1 Bankruptcy Actions .........................................................................................31

ARTICLE VIII COVENANTS AND AGREEMENTS ................................................................33

Section 8.1 Conduct of Business of Sellers ........................................................................33

ARTICLE IX CONDITIONS TO CLOSING ...............................................................................40

Section 9.1 Conditions Precedent to the Obligations of Buyer and Sellers........................40

ARTICLE X TERMINATION ......................................................................................................42

Section 10.1 Termination of Agreement...............................................................................42

Section 11.1 Transfer Taxes .................................................................................................45

ARTICLE XII MISCELLANEOUS..............................................................................................46

Section 12.1 Non-Survival of Representations and Warranties and Certain

ANNEX A Subsidiary Sellers

EXHIBIT A Form of Sale Order

EXHIBIT B Form of Bill of Sale and Assignment and Assumption Agreement

EXHIBIT C Form of Intellectual Property Assignment Agreement

ASSET PURCHASE AGREEMENT

“Agreement” shall have the meaning set forth in the Preamble.

“Allocation” shall have the meaning set forth in Section 3.6(a).

“BBBY” shall have the meaning set forth in the Preamble.

“Buyer” shall have the meaning set forth in the Preamble.

“Closing” shall have the meaning set forth in Section 4.1.