Transaction Overview. Upon and subject to the terms and conditions of this Agreement, the parties agree to effect the following transactions: (a) If on the date of the McClatchy Closing, the conditions set forth in Sections 7.1(b), 7.2(a), 7.3 and 7.4 hereof shall have been fulfilled, then upon the terms and subject to the terms and conditions set forth herein: (i) MNG and Hearst shall consummate the Equity Investment substantially simultaneously with the consummation of the McClatchy Closing and in a manner that enables Hearst’s payment of the Equity Purchase Price to fund the obligations of the MNG Designee pursuant to clause (iii) below; (ii) substantially simultaneously with the McClatchy Closing, Hearst and the MNG Designee shall consummate the Assignment and Assumption; and (iii) the MNG Designee shall consummate the MNG/McClatchy Acquisition at the McClatchy Closing, in accordance with the terms and conditions of the Hearst Purchase Agreement. (b) If on the date of the McClatchy Closing, any of the conditions set forth in Sections 7.1(b), 7.2(a), 7.3 and 7.4 hereof shall not have been fulfilled, then upon the terms and subject to the terms and conditions set forth herein: (i) at the McClatchy Closing, (x) the Hearst Holding Companies shall consummate the Hearst/McClatchy Acquisition, in accordance with the terms and conditions of the Hearst Purchase Agreement, and (y) MNG (or its designees) shall consummate the closing under the MNG Purchase Agreement at the McClatchy Closing, in accordance with the terms and conditions of the MNG Purchase Agreement; (ii) subject to Article VIII hereof, within (5) Business Days after the satisfaction or waiver of the last of the conditions required to be satisfied or waived pursuant to Article VII (other than those requiring the delivery of a certificate or other documents or the taking of other action, concurrently with the Equity Closing), or such other date as may be agreed upon by MNG and Hearst, (x) substantially simultaneously with the closing of the MNG/Hearst Acquisition, MNG and Hearst shall consummate the Equity Investment in a manner that enables Hearst’s payment of the Equity Purchase Price to fund the obligations of the MNG Designee described in following clauses (y) and (z) below, (y) the MNG Designee and the Hearst Subsidiary shall consummate the Assignment and Assumption and (z) the MNG Designee and the Hearst Subsidiary shall consummate the MNG/Hearst Acquisition. (c) In the event that the Hearst Holding Companies consummate the Hearst/McClatchy Acquisition and the conditions set forth in Article VII with respect to the Equity Closing have not been fulfilled on or prior to the three (3) month anniversary of the date of the Hearst/McClatchy Closing, then, at any time thereafter, upon the terms and subject to the terms and conditions set forth herein, and subject to Article VIII hereof, (i) Hearst or MNG may give written notice to the other of its election to require completion of the MNG/Hearst Acquisition, in which case the MNG/Hearst Acquisition Closing shall be held on a mutually agreeable date not later than ninety (90) days after the date of delivery of such notice (subject to satisfaction or waiver of the conditions set forth in Article VII hereof with respect to the MNG/Hearst Acquisition) and (ii) at the MNG/Hearst Acquisition Closing, (x) the MNG Designee and the Hearst Subsidiary shall consummate the Assignment and Assumption and (y) the MNG Designee and the Hearst Subsidiary shall consummate the MNG/Hearst Acquisition. Notwithstanding the foregoing, if Hearst delivers a notice pursuant to the preceding sentence and prior to the MNG/Hearst Acquisition Closing (or such earlier date prior to such date as MNG (or an Affiliate thereof) shall have become committed to consummate the financing of the purchase price for the MNG/Hearst Acquisition, other than through short-term borrowings) the conditions set forth in Article VII with respect to the Equity Closing have been fulfilled, then the notice pursuant to the preceding sentence shall be deemed rescinded and of no further force and effect and the parties shall proceed to close the Equity Investment and the MNG/Hearst Acquisition within (5) Business Days after the satisfaction of such conditions in accordance with this Agreement.
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Transaction Overview. Upon Kadimastem will acquire NLSP, a company that is a reporting issuer in the US and subject to is listed on the terms Nasdaq Capital Market (“Nasdaq”), and conditions will do so through a reverse triangular merger structure in which Kadimastem will become a wholly owned subsidiary of this Agreementthe Company as the surviving entity (the “Transaction” and the “Surviving Entity”); provided, however, the parties agree may determine to effect the following transactions:
(a) If on the date of the McClatchy Closingpursue alternative acquisition structures to achieve tax efficiency and to accommodate Nasdaq, the conditions set forth in Sections 7.1(b), 7.2(a), 7.3 and 7.4 hereof shall have been fulfilled, then upon the terms and subject to the terms and conditions set forth herein:
(i) MNG and Hearst shall consummate the Equity Investment substantially simultaneously with the consummation of the McClatchy Closing and in a manner that enables Hearst’s payment of the Equity Purchase Price to fund the obligations of the MNG Designee pursuant to clause (iii) below;
(ii) substantially simultaneously with the McClatchy Closing, Hearst and the MNG Designee shall consummate the Assignment and Assumption; and
(iii) the MNG Designee shall consummate the MNG/McClatchy Acquisition at the McClatchy Closing, in accordance with the terms and conditions of the Hearst Purchase Agreement.
(b) If on the date of the McClatchy Closing, any of the conditions set forth in Sections 7.1(b), 7.2(a), 7.3 and 7.4 hereof shall not have been fulfilled, then upon the terms and subject to the terms and conditions set forth herein:
(i) at the McClatchy Closing, (x) the Hearst Holding Companies shall consummate the Hearst/McClatchy Acquisition, in accordance with the terms and conditions of the Hearst Purchase Agreementregulatory, and (y) MNG (or its designees) shall consummate the closing under the MNG Purchase Agreement at the McClatchy Closing, in accordance with the terms and conditions of the MNG Purchase Agreement;
(ii) subject to Article VIII hereof, within (5) Business Days after the satisfaction or waiver of the last of the conditions required to be satisfied or waived pursuant to Article VII (other than those requiring the delivery of a certificate or other documents or the taking of other action, concurrently with the Equity Closing), or such other date certain corporate requirements as may be mutually agreed upon by MNG the parties. The parties intend that NLSP’s operations, assets, business personnel, indebtedness and Hearst, (x) substantially simultaneously with liabilities existing immediately prior to the closing of the MNG/Hearst AcquisitionTransaction (the “Closing”), MNG but excluding Nasdaq platform and Hearst certain R&D assets to be mutually agreed upon by the parties (such excluded assets, the “Legacy Business”), shall consummate be transferred out of NLSP prior to the Equity Investment Closing (the “Restructuring”). Subject to, among other things, satisfactory financial, corporate, and legal due diligence, the parties shall decide upon the most beneficial and efficient manner to structure the Restructuring, which may be, inter-alia, by form of issuance of contingent value rights (“CVR”), a spin-off, sale of assets, or otherwise. It is contemplated that, subject to satisfactory due diligence, in a manner event that enables Hearst’s payment the Restructuring is effected by issuing CVRs, (1) the CVRs will provide current shareholders of NLSP the right to receive net cash, equity, or other net value of the Equity Purchase Price CVR upon a Legacy Business sale (and after the discharge of all liabilities and indebtedness related to fund the obligations of Legacy Business) (the MNG Designee described in following clauses (y“Legacy Business Sale”) and (z) below, (y2) the MNG Designee sale of the Legacy Business shall take place within 12 months from the closing of the Transaction (the “Closing Date”), hereinafter referred to as the “Record Date”. Not later than 90 days following the Closing Date, the assets of the Legacy Business will be offered for sale through a tender or other process pursuant to terms and conditions as determined by the Hearst Subsidiary shall consummate Surviving Entity and a to-be-designated representative of NLSP. If, however, the Assignment and Assumption and Legacy Business (z) the MNG Designee and the Hearst Subsidiary shall consummate the MNG/Hearst Acquisition.
(c) In the event that the Hearst Holding Companies consummate the Hearst/McClatchy Acquisition and the conditions set forth in Article VII with respect to the Equity Closing have case not been fulfilled on or transferred prior to the three (3Closing Date) month anniversary shall be cashflow and/or profit negative as of the date end of any fiscal quarter, excluding the Hearst/McClatchy Closingpurposes of such calculation all intellectual property maintenance costs up to a maximum of $100,000 per calendar year, then, at any time thereafter, upon the terms and subject to the terms and conditions set forth herein, and subject to Article VIII hereof, then (i) Hearst or MNG the Surviving Entity may give written notice to nevertheless cause the other of its election to require completion Legacy Business Sale after the Record Date, transfer and/or shut down of the MNG/Hearst AcquisitionLegacy Business, in which case the MNG/Hearst Acquisition Closing shall be held on a mutually agreeable date not later than ninety (90) days after the date of delivery of such notice (subject to satisfaction or waiver of the conditions set forth in Article VII hereof with respect to the MNG/Hearst Acquisition) and (ii) at the MNG/Hearst Acquisition ClosingKadimastem (i.e., (x) the MNG Designee and the Hearst Subsidiary shall consummate the Assignment and Assumption and (y) the MNG Designee and the Hearst Subsidiary shall consummate the MNG/Hearst Acquisition. Notwithstanding the foregoing, if Hearst delivers a notice pursuant to the preceding sentence and prior to the MNG/Hearst Acquisition Closing (or such earlier date prior to such date as MNG (or an Affiliate thereofits former shareholders) shall have become committed be entitled to consummate the financing of the purchase price compensation for the MNGlosses generated by the Legacy Business from the date hereof until such shut down/Hearst Acquisition, other than through short-term borrowings) sale accumulated on the conditions set forth in Article VII with respect to the Equity Closing have been fulfilled, then the notice pursuant to the preceding sentence period as shall be deemed rescinded and of no further force and effect and agreed upon in the parties shall proceed to close the Equity Investment and the MNG/Hearst Acquisition within (5) Business Days after the satisfaction of such conditions in accordance with this Definitive Agreement.
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