Pre-Closing Restructuring. (a) Notwithstanding anything to the contrary herein, prior to the consummation of the transactions 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 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 any other Liabilities primarily unrelated to the 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 transactions set forth in Section 6.3(a)(i)(B), Liz Foreign shall cause LCIA and NewCo to execute the NewCo Contribution Agreement whereupon (A) LCIA will contribute all of its assets and Liabilities (including, for the avoidance of doubt, all of the issued and outstanding Mexx Europe Shares) to NewCo, in exchange for NewCo Shares, by means of a notarial deed of issue and transfer of shares pursuant to applicable Law, which deed includes the 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 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 6.3(a)(i) through (a)(v), the “Pre-Closing Restructuring”) on or prior to the Closing Date.
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Sources: Merger Agreement (Claiborne Liz Inc)
Pre-Closing Restructuring. (a) Notwithstanding anything Subject to the contrary hereinSection 2.2 and applicable Law, prior to the consummation of the transactions set forth in Section 2.1Closing, the applicable Sellers shallBridgeBio shall have, and shall cause have caused its applicable Subsidiaries to, transfer, convey, deliver and assign to the applicable members In-Scope Entity (to the extent not already owned by such In-Scope Entity) or the Formed Entity (designated by BridgeBio to hold the Acquired Assets for the Tuberous Sclerosis Complex (TSC) program (with respect to small molecule method only)) all of BridgeBio’s and its Subsidiaries’ respective right, title and interest in and to the Seller Group toAcquired Assets, perform free and clear of all Encumbrances (other than Permitted Encumbrances), and each In-Scope Entity or the Formed Entity, as applicable, has assumed, is responsible for and has timely discharged when due, all respective Assumed Liabilities, pursuant to the Pre-Closing Assignment and Assumption Agreement.
(b) 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 following actions in connection with the Merger and immediately following the completion of the transactions set forth in this Section 6.3items (collectively, the Parties shall commence the performance of the transactions set forth in Section 2.1:“Excluded Assets”):
(i) As soon as practicable following all Intellectual Property other than the date hereof (whichAcquired IP Assets, if Seller so electsincluding, may be after completion of for clarity, any part or all of the Pre-Closing Restructuring steps set forth on Exhibit D but, in any event, prior to Closing):
Trademarks that include (A) The Sellers shall, BRIDGEBIO 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 any Trademarks containing or comprising the contribution of the Mexx Europe Assets and Mexx Europe Liabilities to LCIAforegoing (A), 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 Trademarks confusingly similar thereto or dilutive thereof (such assetsTrademarks, the “Retained Assets” and such Liabilities, together with any other Liabilities primarily unrelated to the Mexx Europe Business (all of which shall be distributed, transferred or disposed of by LCIA in connection with the Pre-Closing RestructuringBridgeBio Marks”), 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 all IT Assets other than 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.Acquired IT Assets;
(iii) Promptly following the formation portion of NewCo and any Shared Contracts that are not allocated or assigned to or retained by the transactions set forth in 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 6.3(a)(i)(B), Liz Foreign shall cause LCIA and NewCo to execute 6.8 of the NewCo Contribution Agreement whereupon Agreement;
(iv) all (A) LCIA will contribute all applications, submissions, registrations or notifications submitted to a Regulatory Authority for purposes of its assets obtaining, updating or maintaining of any Regulatory Approval, (B) correspondence with or to Regulatory Authorities (including minutes and Liabilities official contact reports relating to any communications with any Regulatory Authorities), (includingC) non-clinical, for the avoidance of doubtclinical and other files, all writings, notes, studies, reports and other documents contained or referenced in or supporting any of the issued foregoing or any Regulatory Approval, and outstanding Mexx Europe Shares(D) all regulatory or legal rights in any of clauses (A) to NewCo(C), in exchange for NewCo Shares, by means of a notarial deed of issue and transfer of shares pursuant to applicable Law, which deed includes the transfer each case of the Mexx Europe Sharesforegoing (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) NewCo will accept all leasehold interests, including any prepaid rent, security deposits and assume options to renew or purchase in connection therewith, of BridgeBio or any of its Affiliates;
(viii) all such assets cash and Liabilities. An auditor’s statement confirming that cash equivalents (“Cash”);
(ix) the aforementioned total contribution is at least equal portion of the “Intercompany receivables” reflected in the “Total assets” line item of the Financial Statements for each of Portal or Sub21 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 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 6.3(a)(i) through (a)(v), the “Pre-Closing Restructuring”) extent incurred on or prior to June 30, 2024 (the Closing Date“Excluded Intercompany Receivables”); and
(x) all insurance policies and binders and all claims, refunds and credits from insurance policies or binders due or to become due with respect to such policies or binders.
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Pre-Closing Restructuring. (a) Notwithstanding anything to the contrary hereinHercules has completed or will complete, prior to the consummation Closing, each of the transactions set forth in Section 2.1following (collectively, 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 6.3, the Parties shall commence the performance of the transactions set forth in Section 2.1:"Pre-Closing Restructuring"):
(i) As soon as practicable following the date hereof merger of Hercules Copenhagen ApS with and into the Issuer; (which, if Seller so elects, may be after completion ii) the necessary corporate and shareholder authorizations (other than the adoption of any part or all a shareholder resolution approving the final distribution of the Pre-Closing Restructuring steps set forth on Exhibit D butnote referred to in clause (iii) below, in any event, prior notification of (and required filings with) the Danish Commerce and Companies Agency relating to Closing):
(A) The Sellers shallsuch resolution, and shall cause the applicable members amendment of the Seller Group Issuer's Articles of Association and LCIA to, execute share register in order to reflect 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)(ADecapitalization referred to below) 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 reduction 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 nominal share capital 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 any other Liabilities primarily unrelated to the Mexx Europe Business (all of which shall be distributed, transferred or disposed of Issuer by LCIA in connection with the Pre-Closing Restructuring), the “Retained Liabilities,” respectively) to Liz Foreign (including by first causing such assets and Liabilities DKK 45,700,000 to be transferred from one or more of effected by distributing the Acquired Companies DKK 25 33 696,080,000 note referred 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.
clause (iii) Promptly following below and a note of up to DKK 3,526,000,000 corresponding to a loan received by Hercules from the formation Issuer at Closing, as to which notification was published in the public Gazette on May 27, 2000 in accordance with Section 47 of NewCo the Act on Private Limited Companies (the "Decapitalization"); and (iii) the transactions set forth in Section 6.3(a)(i)(B), Liz Foreign shall cause LCIA and NewCo transfer to execute the NewCo Contribution Agreement whereupon (A) LCIA will contribute all Hercules Newco of its assets and Liabilities (including, for the avoidance of doubt, all of the issued and outstanding Mexx Europe Shares) to NewCocapital stock of each of Hercules SA, Hercules AB and OY Hercofin AB in exchange for NewCo Shares, by means DKK 385,000,000 cash and a DKK 696,080,000 aggregate principal amount note of a notarial deed of issue and transfer of shares pursuant to applicable Law, which deed includes the transfer Hercules Newco. The intention of the Mexx Europe Shares, and (B) NewCo will accept and assume all such assets and Liabilities. An auditor’s statement confirming parties is that the aforementioned total contribution is at least equal to investment of Lehm▇▇ ▇▇▇co in the nominal value of Issuer herein contemplated, including the NewCo Shares to Pre-Closing Restructuring and the Decapitalization, shall 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 on a basis consistent 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)Annex A hereto.
(b) On As described in Section 5.14(a) and the terms Disclosure Schedule, pursuant to a loan facility entered into between Hercules and subject Issuer on May 17, 2000, Issuer will loan and Hercules will borrow at Closing, the Closing Date Loan Amount. The Closing Date Loan Amount will be calculated in accordance with Annex B.
(c) Subject in all cases to the conditions set forth requirements of applicable laws, Buyer agrees to use reasonable best efforts to cause the Issuer and Issuer's board of directors to adopt resolutions approving and effecting the distribution of the notes issued pursuant to the loan facility referenced in this Agreement, Section 5.14(b) and to file the Sellers and their respective Affiliates and Subsidiaries may take registration of the restructuring steps set forth on Exhibit D (collectively, together Decapitalization with the transactions set forth in Section 6.3(a)(i) through (a)(v)Danish Commerce and Companies Agency, the “Pre-Closing Restructuring”) on or prior to the Closing Dateas soon as practicable after Closing.
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