Pre-Closing Restructuring. (a) Prior to the Closing, and as promptly as practicable following the date of this Agreement, CCO shall apply for a variance from the Ohio Division of Cannabis Control to permit CCO to cause the provisional license for the Additional Location and all assets exclusively related to the Additional Location to be transferred to a newly formed entity, as a direct, wholly owned subsidiary (“New Sub”) of Cannabist (“New Sub Member”); provided such transfer shall not occur until such variance is granted, and with such approved transfer to be effective immediately prior to, and subject to, the Closing. (b) Subject to the foregoing, if, at or prior to the Closing, the Ohio Division of Cannabis Control has not issued a certificate of operation for the Additional Location, then the following shall occur: (i) CCO shall transfer the provisional license for the Additional Location and all assets exclusively related to the Additional Location to New Sub; (ii) New Sub Member shall grant Buyer an option to buy all of the issued and outstanding equity, voting and economic interests of New Sub from New Sub Member in exchange for the purchase price of One Million Five Hundred Thousand Dollars ($1,500,000) (the “Additional Location Deposit”) pursuant to a Membership Interest Purchase Option Agreement, in form and substance attached hereto as Exhibit F (the “MIPOA” and the Transactions, the “Option”); and (iii) New Sub, Buyer and certain of their respective Affiliates shall enter into a loan and security agreement, in each case in form and substance attached hereto as Exhibit G (the “Grid Note”), and a Consulting and Staffing Services Agreement, in form and substance attached hereto as Exhibit H (such exhibits collectively, the “MIPOA Ancillary Agreements” and together with the MIPOA, the “MIPOA Documents”); provided that the Members shall provide copies of all such MIPOA Documents to the Ohio Division of Cannabis Control prior to and in advance of execution thereof. (c) Notwithstanding the foregoing, in the event the Ohio Division of Cannabis Control requests any amendments with respect to the Additional Location, the Parties shall cooperate and negotiate in good faith (i) to agree upon an alternative arrangement and structure to effectuate the transactions contemplated by this Agreement or any Transaction Agreement that most closely captures the intentions of the existing Transaction Agreements, and (ii) to amend the Transaction Agreements, or enter into any subsequent Transaction Agreements, that ensures Buyer is able to acquire the Additional Location and all assets primarily related to the Additional Location. Except to the extent requested or caused by Buyer or its Affiliates (including the Companies after the Closing), neither the Cannabist nor the Members (nor prior to the Closing, the Companies) shall take or fail to take any action that would reasonably be expected to cause (i) the provisional license for the Additional Location to be suspended, forfeited, surrendered, or revoked, or (ii) the Ohio Division of Cannabis Control to not approve the transfer of the provisional license to the Additional Location. Following the Closing, the Cannabist and Members shall cooperate in good faith, and shall cause their employees and representatives to cooperate, with Buyer and the Companies in connection with the transfer of the provisional license to the Additional Location. Notwithstanding anything to the contrary herein, all transactions contemplated by this Section 5.8 with respect to the Additional Location and the MIPOA Documents shall be subject to and contingent upon all such approvals of the Ohio Division of Cannabis Control required by applicable Law, including the Ohio Cannabis Laws and, subject to the first sentence of this Section 5.8(c), nothing shall require any Party to violate any Law.
Appears in 1 contract
Sources: Equity Purchase Agreement (Cannabist Co Holdings Inc.)
Pre-Closing Restructuring. (a) Prior to the Closing, and as promptly as practicable following the date of this Agreement, CCO shall apply for a variance from the Ohio Division of Cannabis Control to permit CCO to cause the provisional license for the Additional Location and all assets exclusively related to the Additional Location to be transferred to a newly formed entity, as a direct, wholly owned subsidiary (“New Sub”) of Cannabist (“New Sub Member”); provided such transfer shall not occur until such variance is granted, and with such approved transfer to be effective immediately prior to, and subject to, the Closing.
(b) Subject to the foregoing, if, at or prior to the Closing, the Ohio Division of Cannabis Control has not issued a certificate of operation for the Additional Location, then the following shall occur:
(i) CCO shall transfer the provisional license for the Additional Location and all assets exclusively related to the Additional Location to New Sub;
(ii) New Sub Member shall grant Buyer an option to buy all of the issued and outstanding equity, voting and economic interests of New Sub from New Sub Member in exchange for the purchase price of One Million Five Hundred Thousand Dollars ($1,500,000) (the “Additional Location Deposit”) pursuant to a Membership Interest Purchase Option Agreement, in form and substance attached hereto as Exhibit F (the “MIPOA” and the Transactions, the “Option”); and
(iii) New Sub, Buyer and certain of their respective Affiliates shall enter into a loan and security agreement, in each case in form and substance attached hereto as Exhibit G (the “Grid Note”), and a Consulting and Staffing Services Agreement, in form and substance attached hereto as Exhibit H (such exhibits collectively, the “MIPOA Ancillary Agreements” and together with the MIPOA, the “MIPOA Documents”); provided that the Members shall provide copies of all such MIPOA Documents to the Ohio Division of Cannabis Control prior to and in advance of execution thereof.
(c) Notwithstanding the foregoing, in the event the Ohio Division of Cannabis Control requests any amendments with respect to the Additional Location, the Parties shall cooperate and negotiate in good faith (i) to agree upon an alternative arrangement and structure to effectuate the transactions contemplated by this Agreement or any Transaction Agreement that most closely captures the intentions of the existing Transaction Agreements, and (ii) to amend the Transaction Agreements, or enter into any subsequent Transaction Agreements, that ensures Buyer is able to acquire the Additional Location and all assets primarily related to the Additional Location. Except to the extent requested or caused by Buyer or its Affiliates (including the Companies after the Closing), neither the Cannabist nor the Members (nor prior to the Closing, the Companies) shall take or fail to take any action that would reasonably be expected to cause (i) the provisional license for the Additional Location to be suspended, forfeited, surrendered, or revoked, or (ii) the Ohio Division of Cannabis Control to not approve the transfer of the provisional license to the Additional Location. Following the Closing, the Cannabist and Members shall cooperate in good faith, and shall cause their employees and representatives to cooperate, with Buyer and the Companies in connection with the transfer of the provisional license to the Additional Location. Notwithstanding anything to the contrary herein, all prior to the consummation of the transactions contemplated by set forth in Section 2.1, the applicable Sellers shall, and shall cause the applicable members of the Seller Group to, perform the following actions in connection with the Merger and immediately following the completion of the transactions set forth in this Section 5.8 6.3, the Parties shall commence the performance of the transactions set forth in Section 2.1:
(i) As soon as practicable following the date hereof (which, if Seller so elects, may be after completion of any part or all of the Pre-Closing Restructuring steps set forth on Exhibit D but, in any event, prior to Closing):
(A) The Sellers shall, and shall cause the applicable members of the Seller Group and LCIA to, execute the LCIA Contribution Agreement whereupon (1) the applicable members of the Seller Group will contribute all of the assets and Liabilities set forth in Section 6.3(a)(i)(A) of the Sellers Disclosure Letter (the “Mexx Europe Assets” and the “Mexx Europe Liabilities,” respectively) to LCIA and (2) LCIA shall accept and assume the Mexx Europe Assets and Mexx Europe Liabilities.
(B) Promptly following the contribution of the Mexx Europe Assets and Mexx Europe Liabilities to LCIA, Liz Foreign shall, and shall cause LCIA and the applicable Acquired Companies to, execute the LCIA Distribution Agreement whereupon (1) LCIA will distribute all of the assets (including any Shared Contracts) and Liabilities set forth in Section 6.3(a)(i)(B) of the Sellers Disclosure Letter (such assets, the “Retained Assets” and such Liabilities, together with respect any other Liabilities primarily unrelated to the Additional Location Mexx Europe Business (all of which shall be distributed, transferred or disposed of by LCIA in connection with the Pre-Closing Restructuring), the “Retained Liabilities,” respectively) to Liz Foreign (including by first causing such assets and Liabilities to be transferred from one or more of the Acquired Companies to LCIA), and (2) Liz Foreign shall accept and assume the Retained Assets and Retained Liabilities.
(ii) Promptly following the completion of the transactions described in Section 6.3(a)(i), Liz Foreign shall cause LCIA to form NewCo, which shall be a wholly-owned Subsidiary of LCIA and Liz Foreign shall form LF BV, which shall be a wholly-owned Subsidiary of Liz Foreign.
(iii) Promptly following the formation of NewCo and the MIPOA Documents transactions set forth in Section 6.3(a)(i)(B), Liz Foreign shall be subject cause LCIA and NewCo to execute the NewCo Contribution Agreement whereupon (A) LCIA will contribute all of its assets and contingent upon Liabilities (including, for the avoidance of doubt, all such approvals of the Ohio Division issued and outstanding Mexx Europe Shares) to NewCo, in exchange for NewCo Shares, by means of Cannabis Control required by a notarial deed of issue and transfer of shares pursuant to applicable Law, including which deed includes the Ohio Cannabis Laws transfer of the Mexx Europe Shares, and (B) NewCo will accept and assume all such assets and Liabilities. An auditor’s statement confirming that the aforementioned total contribution is at least equal to the nominal value of the NewCo Shares to be issued by NewCo to LCIA will be attached to the notarial deed of issue and transfer described in clause (A) of this Section 6.3(a)(iii).
(iv) Promptly following the completion of the transactions described in Section 6.3(a)(iii), Liz Foreign shall cause LCIA to be wound up and dissolved pursuant to the terms of its organizational documents and in accordance with the relevant provisions of the DGCL and, in accordance therewith, Liz Foreign shall cause LCIA to distribute to Liz Foreign all of its NewCo Shares by means of a notarial deed of transfer of shares.
(v) Promptly following the completion of the transactions described in Section 6.3(a)(iv), (A) Liz Foreign shall contribute all of its NewCo Shares to LF BV in exchange for share premium (‘agio’) by means of a notarial deed of transfer of shares pursuant to applicable Law, and (B) LF BV shall accept the NewCo Shares. An auditor’s statement confirming that the aforementioned contribution is at least equal to €0 will be attached to the notarial deed of transfer described in clause (A) of this Section 6.3(a)(v).
(b) On the terms and subject to the first sentence of conditions set forth in this Agreement, the Sellers and their respective Affiliates and Subsidiaries may take the restructuring steps set forth on Exhibit D (collectively, together with the transactions set forth in Section 5.8(c6.3(a)(i) through (a)(v), nothing shall require any Party the “Pre-Closing Restructuring”) on or prior to violate any Lawthe Closing Date.
Appears in 1 contract
Sources: Merger Agreement (Claiborne Liz Inc)
Pre-Closing Restructuring. (a) Prior Subject to Section 2.2 and applicable Law, prior to the Closing, BridgeBio shall have, and as promptly as practicable following shall have caused its applicable Subsidiaries to, transfer, convey, deliver and assign to the date of this Agreement, CCO shall apply for a variance from applicable In-Scope Entity (to the Ohio Division of Cannabis Control extent not already owned by such In-Scope Entity) or the Formed Entity (designated by BridgeBio to permit CCO to cause hold the provisional license Acquired Assets for the Additional Location Tuberous Sclerosis Complex (TSC) program (with respect to small molecule method only)) all of BridgeBio’s and all assets exclusively related its Subsidiaries’ respective right, title and interest in and to the Additional Location to be transferred to a newly formed entityAcquired Assets, free and clear of all Encumbrances (other than Permitted Encumbrances), and each In-Scope Entity or the Formed Entity, as a directapplicable, wholly owned subsidiary (“New Sub”) of Cannabist (“New Sub Member”); provided such transfer shall not occur until such variance has assumed, is grantedresponsible for and has timely discharged when due, all respective Assumed Liabilities, pursuant to the Pre-Closing Assignment and with such approved transfer to be effective immediately prior to, and subject to, the ClosingAssumption Agreement.
(b) Subject Each Party expressly agrees and acknowledges that the Acquired Assets will not include any assets, rights or interests of BridgeBio and its Subsidiaries that do not constitute “Acquired Assets”, which excluded assets shall be deemed to include the foregoing, if, at or prior to the Closingfollowing items (collectively, the Ohio Division of Cannabis Control has not issued a certificate of operation for the Additional Location, then the following shall occur:“Excluded Assets”):
(i) CCO shall transfer all Intellectual Property other than the provisional license Acquired IP Assets, including, for clarity, any Trademarks that include (A) BRIDGEBIO and (B) any Trademarks containing or comprising the Additional Location and all assets exclusively related to foregoing (A), including any Trademarks confusingly similar thereto or dilutive thereof (such Trademarks, the Additional Location to New Sub“BridgeBio Marks”);
(ii) New Sub Member shall grant Buyer an option all IT Assets other than the Acquired IT Assets;
(iii) the portion of any Shared Contracts that are not allocated or assigned to buy all or retained by the Company or any of its Subsidiaries, or to which BridgeBio or any of its Affiliates (other than the Acquired Subsidiaries) is or will be a party pursuant to Section 6.8 of the issued Agreement;
(iv) all (A) applications, submissions, registrations or notifications submitted to a Regulatory Authority for purposes of obtaining, updating or maintaining of any Regulatory Approval, (B) correspondence with or to Regulatory Authorities (including minutes and outstanding equityofficial contact reports relating to any communications with any Regulatory Authorities), voting (C) non-clinical, clinical and economic interests other files, writings, notes, studies, reports and other documents contained or referenced in or supporting any of New Sub from New Sub Member the foregoing or any Regulatory Approval, and (D) all regulatory or legal rights in exchange any of clauses (A) to (C), in each case of the foregoing (A) – (D), other than the Acquired Regulatory Documentation;
(v) all Regulatory Approvals other than Regulatory Approvals exclusively related to any In-Scope Program (if applicable);
(vi) all rights of BridgeBio under this Agreement and the other Transaction Documents;
(vii) (A) all real property and any buildings, improvements and fixtures thereon, and (B) all leasehold interests, including any prepaid rent, security deposits and options to renew or purchase in connection therewith, of BridgeBio or any of its Affiliates;
(viii) all cash and cash equivalents (“Cash”);
(ix) the portion of the “Intercompany receivables” reflected in the “Total assets” line item of the Financial Statements for each of Portal or Sub21 to the purchase price of One Million Five Hundred Thousand Dollars ($1,500,000) extent incurred on or prior to June 30, 2024 (the “Additional Location Deposit”) pursuant to a Membership Interest Purchase Option Agreement, in form and substance attached hereto as Exhibit F (the “MIPOA” and the Transactions, the “OptionExcluded Intercompany Receivables”); and
(iiix) New Suball insurance policies and binders and all claims, Buyer refunds and certain of their respective Affiliates shall enter into a loan and security agreement, in each case in form and substance attached hereto as Exhibit G (the “Grid Note”), and a Consulting and Staffing Services Agreement, in form and substance attached hereto as Exhibit H (such exhibits collectively, the “MIPOA Ancillary Agreements” and together with the MIPOA, the “MIPOA Documents”); provided that the Members shall provide copies of all such MIPOA Documents credits from insurance policies or binders due or to the Ohio Division of Cannabis Control prior to and in advance of execution thereof.
(c) Notwithstanding the foregoing, in the event the Ohio Division of Cannabis Control requests any amendments become due with respect to the Additional Location, the Parties shall cooperate and negotiate in good faith (i) to agree upon an alternative arrangement and structure to effectuate the transactions contemplated by this Agreement such policies or any Transaction Agreement that most closely captures the intentions of the existing Transaction Agreements, and (ii) to amend the Transaction Agreements, or enter into any subsequent Transaction Agreements, that ensures Buyer is able to acquire the Additional Location and all assets primarily related to the Additional Location. Except to the extent requested or caused by Buyer or its Affiliates (including the Companies after the Closing), neither the Cannabist nor the Members (nor prior to the Closing, the Companies) shall take or fail to take any action that would reasonably be expected to cause (i) the provisional license for the Additional Location to be suspended, forfeited, surrendered, or revoked, or (ii) the Ohio Division of Cannabis Control to not approve the transfer of the provisional license to the Additional Location. Following the Closing, the Cannabist and Members shall cooperate in good faith, and shall cause their employees and representatives to cooperate, with Buyer and the Companies in connection with the transfer of the provisional license to the Additional Location. Notwithstanding anything to the contrary herein, all transactions contemplated by this Section 5.8 with respect to the Additional Location and the MIPOA Documents shall be subject to and contingent upon all such approvals of the Ohio Division of Cannabis Control required by applicable Law, including the Ohio Cannabis Laws and, subject to the first sentence of this Section 5.8(c), nothing shall require any Party to violate any Lawbinders.
Appears in 1 contract
Pre-Closing Restructuring. (a) Prior to the ClosingHercules has completed or will complete, and as promptly as practicable following the date of this Agreement, CCO shall apply for a variance from the Ohio Division of Cannabis Control to permit CCO to cause the provisional license for the Additional Location and all assets exclusively related to the Additional Location to be transferred to a newly formed entity, as a direct, wholly owned subsidiary (“New Sub”) of Cannabist (“New Sub Member”); provided such transfer shall not occur until such variance is granted, and with such approved transfer to be effective immediately prior to, and subject to, the Closing.
(b) Subject to the foregoing, if, at or prior to the Closing, the Ohio Division each of Cannabis Control has not issued a certificate of operation for the Additional Location, then the following shall occur:(collectively, the "Pre-Closing Restructuring"):
(i) CCO shall transfer the provisional license for merger of Hercules Copenhagen ApS with and into the Additional Location and all assets exclusively related to the Additional Location to New Sub;
Issuer; (ii) New Sub Member shall grant Buyer an option the necessary corporate and shareholder authorizations (other than the adoption of a shareholder resolution approving the final distribution of the note referred to buy in clause (iii) below, notification of (and required filings with) the Danish Commerce and Companies Agency relating to such resolution, and the amendment of the Issuer's Articles of Association and share register in order to reflect the Decapitalization referred to below) of the reduction of the nominal share capital of the Issuer by DKK 45,700,000 to be effected by distributing the DKK 25 33 696,080,000 note referred to in clause (iii) below and a note of up to DKK 3,526,000,000 corresponding to a loan received by Hercules from the Issuer at Closing, as to which notification was published in the public Gazette on May 27, 2000 in accordance with Section 47 of the Act on Private Limited Companies (the "Decapitalization"); and (iii) the transfer to Hercules Newco of all of the issued and outstanding equitycapital stock of each of Hercules SA, voting Hercules AB and economic interests of New Sub from New Sub Member OY Hercofin AB in exchange for DKK 385,000,000 cash and a DKK 696,080,000 aggregate principal amount note of Hercules Newco. The intention of the purchase price parties is that the investment of One Million Five Hundred Thousand Dollars Lehm▇▇ ▇▇▇co in the Issuer herein contemplated, including the Pre-Closing Restructuring and the Decapitalization, shall be on a basis consistent with Annex A hereto.
($1,500,000b) (As described in Section 5.14(a) and the “Additional Location Deposit”) Disclosure Schedule, pursuant to a Membership Interest Purchase Option Agreementloan facility entered into between Hercules and Issuer on May 17, in form 2000, Issuer will loan and substance attached hereto as Exhibit F (the “MIPOA” and the TransactionsHercules will borrow at Closing, the “Option”); and
(iii) New Sub, Buyer and certain of their respective Affiliates shall enter into a loan and security agreement, Closing Date Loan Amount. The Closing Date Loan Amount will be calculated in each case in form and substance attached hereto as Exhibit G (the “Grid Note”), and a Consulting and Staffing Services Agreement, in form and substance attached hereto as Exhibit H (such exhibits collectively, the “MIPOA Ancillary Agreements” and together accordance with the MIPOA, the “MIPOA Documents”); provided that the Members shall provide copies of all such MIPOA Documents to the Ohio Division of Cannabis Control prior to and in advance of execution thereof.Annex B.
(c) Notwithstanding the foregoing, Subject in the event the Ohio Division of Cannabis Control requests any amendments with respect all cases to the Additional Locationrequirements of applicable laws, Buyer agrees to use reasonable best efforts to cause the Parties shall cooperate Issuer and negotiate in good faith (i) Issuer's board of directors to agree upon an alternative arrangement adopt resolutions approving and structure to effectuate effecting the transactions contemplated by this Agreement or any Transaction Agreement that most closely captures the intentions distribution of the existing Transaction Agreements, and (ii) to amend the Transaction Agreements, or enter into any subsequent Transaction Agreements, that ensures Buyer is able to acquire the Additional Location and all assets primarily related notes issued pursuant to the Additional Location. Except loan facility referenced in Section 5.14(b) and to file the extent requested or caused by Buyer or its Affiliates (including the Companies after the Closing), neither the Cannabist nor the Members (nor prior to the Closing, the Companies) shall take or fail to take any action that would reasonably be expected to cause (i) the provisional license for the Additional Location to be suspended, forfeited, surrendered, or revoked, or (ii) the Ohio Division of Cannabis Control to not approve the transfer registration of the provisional license to the Additional Location. Following the Closing, the Cannabist and Members shall cooperate in good faith, and shall cause their employees and representatives to cooperate, with Buyer and the Companies in connection Decapitalization with the transfer of the provisional license to the Additional Location. Notwithstanding anything to the contrary hereinDanish Commerce and Companies Agency, all transactions contemplated by this Section 5.8 with respect to the Additional Location and the MIPOA Documents shall be subject to and contingent upon all such approvals of the Ohio Division of Cannabis Control required by applicable Law, including the Ohio Cannabis Laws and, subject to the first sentence of this Section 5.8(c), nothing shall require any Party to violate any Lawas soon as practicable after Closing.
Appears in 1 contract