Exhibit 10.1
WAIVER AND SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT
This WAIVER AND SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT
(this “Amendment”), dated as of May 22, 2023 to be effective as of May 15, 2023 (the “Second Amendment Effective Date”), is entered into by and among Neptune Wellness Solutions Inc., a corporation incorporated under the Business Corporations Act (Québec) and domiciled in Canada (the “Company”), the Guarantors party hereto, Sprout Foods, Inc., a Delaware corporation (“Sprout”), Neptune Growth Ventures, Inc., a Delaware corporation (“NGV”), CCUR Holdings, Inc., a Delaware corporation, as collateral agent (in such capacity, “Collateral Agent”) and a Purchaser, and the other Purchasers party hereto.
RECITALS:
WHEREAS, reference is made to the Note Purchase Agreement dated as of January 12, 2023 (as amended by that certain Waiver and First Amendment to Note Purchase Agreement, dated March 9, 2023, as amended by this Amendment and as further amended, restated, supplemented or otherwise modified from time to time as of the date hereof, the “Note Purchase Agreement”; capitalized terms used in this Amendment but not otherwise defined herein have the meanings given to such terms in the Note Purchase Agreement) among the Company, the Guarantors from time to time party thereto, the Collateral Agent, and the Purchasers from time to time party thereto;
WHEREAS, the Company has requested that the Purchasers (i) waive, in part, the required prepayment due as of May 15, 2023 (other than the Partial Prepayment (as defined below)) set forth in Section 3.2(d)(ii) of the Note Purchase Agreement (the “Non-Compliance Event”) and (ii) amend the Note Purchase Agreement to, among other things, extend the deadline to make any remaining prepayment required under Section 3.2(d)(ii) of the Note Purchase Agreement (after giving effect to the Partial Prepayment);
WHEREAS, subject to the satisfaction of the conditions set forth herein, the Purchasers signatory hereto are willing to do so, on the terms set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto hereby agree as follows:
Section 1. Waiver. Subject to the satisfaction of the conditions precedent set forth in Section 5 of this Amendment, and in reliance upon the representations and warranties of the Loan Parties set forth in Section 4 below, the Collateral Agent and the Purchasers hereby waive the Non-Compliance Event and, except as otherwise provided for herein, their right to take any action under the Note Purchase Agreement or the other Note Documents that they may otherwise have had solely as a result of the Non-Compliance Event (the “Waiver”). The Waiver is a limited, one time waiver and, except as expressly set forth herein, shall not be deemed to: (a) constitute a waiver of or consent to any Event of Default or any other breach of the Note Purchase Agreement or any of the other Note Documents, whether now existing or hereafter
arising, (b) constitute a waiver of any right or remedy of the Collateral Agent or any of the Purchasers under the Note Documents which does not arise as a result of the Non-Compliance Event (all such rights and remedies being expressly reserved by the Collateral Agent and the Purchasers), or (c) establish a custom or course of dealing or conduct between the Collateral Agent and the Purchasers, on the one hand, and the Company or any other Loan Party on the other hand.
Section 2. Amendments to Note Purchase Agreement. Effective as of the Second Amendment Effective Date, subject to the satisfaction of the conditions precedent set forth in Section 5 of this Amendment, the Note Purchase Agreement (exclusive of Appendices and Exhibits thereto) shall be amended by deleting the stricken text (indicated textually in the same manner as the following example: stricken text), and (ii) adding the double underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the amended Note Purchase Agreement attached hereto as Annex I.
Section 3. Interest Rate Changes. Notwithstanding anything to the contrary in Section 3.1 of the Note Purchase Agreement, for the period beginning on March 31, 2023, through and including the date that the Holders receive the Second Amendment Obligation and that portion of the Exit Fee due and payable on July 31, 2023 (as may be extended), interest on the sum of the outstanding principal amount of each Note shall accrue at the rate of twenty four percent (24%) per annum; thereafter, interest will revert to the rate otherwise provided under Section 3.1 of the Note Purchase Agreement.
Section 4. Note Collateral. Notwithstanding the Waiver, the Non-Compliance Event shall be deemed a Triggering Event under that certain Pledge and Collateral Assignment of Sprout Documents dated as of January 12, 2023, by and among NGV, the Collateral Agent and Sprout (the “Pledge Agreement”). Until such time as the Holders receive the Second Amendment Obligation due and payable on July 31, 2023 (as may be extended), each of NGV and Sprout hereby agree that Collateral Agent shall have the rights and authority granted to it pursuant to Section 3 of the Pledge Agreement. For the avoidance of doubt, the agreements in this Section 4 shall terminate from and after the date the Holders receive the Second Amendment Obligation; provided that the foregoing termination of this Section 4 as to the Triggering Event caused by the Non-Compliance Event does not amend or modify the Pledge Agreement or the rights granted to the Collateral Agent therein if a Triggering Event has occurred and is continuing at any time.
Section 5. Loan Parties’ Certifications. The Loan Parties hereby certify to each Purchaser that:
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Section 6. Conditions to Effectiveness. This Amendment shall become effective upon the Purchasers’ reasonable satisfaction that the following conditions precedent have been satisfied:
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acknowledges and agrees that the Board Observer shall not owe any fiduciary or other duties to the Sprout or equityholders of Sprout or any Subsidiary or otherwise have any managerial or other duties or liabilities to such Persons, its Affiliates or their equityholders while participating as an observer. The Loan Parties and Sprout shall jointly and severally indemnify and hold harmless the Collateral Agent from and against all losses related to, caused by, resulting or arising from or in connection with the exercise of the rights granted by this Section 6(c); provided, that the Collateral Agent shall not be indemnified by any Loan Party or any of its Subsidiaries for any expenses, liabilities or losses to the extent that a court of competent jurisdiction has finally determined that such are attributable to the Collateral Agent’s (i) bad faith, gross negligence, willful malfeasance or fraud or (ii) knowing and material violation of law.
$1,000,000 towards the principal amount of the outstanding Notes owed to the Purchasers pursuant to Section 3.2(d)(ii) of the Note Purchase Agreement as of the date hereof (the “Partial Prepayment”);
Section 7. Counterparts. This Amendment may be executed by one or more of the parties to this Amendment in any number of separate counterparts, each of which when so executed, shall be deemed an original and all said counterparts when taken together shall be deemed to constitute but one and the same instrument. Any signature page to this Amendment delivered by facsimile transmission or e-mail (.pdf format) shall have the same force and effect as if the original thereof had been delivered. The words “execution,” “signed,” “signature,” and words of like import in this Agreement and the other Note Documents, including any assignment agreement or in any amendment, waiver, modification or consent relating hereto shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable laws, including the Federal Electronic Signatures in Global and National Commerce Act, the
1 NTD: To include payment of any legal fees that exceed the $60K deposit Neptune previously delivered to CCUR.
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New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
Section 8. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns.
Section 9. Further Assurance. The Company and each Purchaser hereby agrees from time to time, as and when requested by the Required Holder, to execute and deliver or cause to be executed and delivered, all such documents, instruments and agreements and to take or cause to be taken such further or other action as the Required Holders may reasonably deem necessary or desirable in order to carry out the intent and purposes of this Amendment.
Section 10. Governing Law. The laws of the State of New York shall govern all matters arising out of, in connection with or relating to this Amendment, including, without limitation, its validity, interpretation, construction, performance and enforcement (including, without limitation, any claims sounding in contract or tort law arising out of the subject matter hereof and any determinations with respect to post-judgment interest).
Section 11. Severability. The illegality or unenforceability of any provision of this Amendment or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Amendment or any instrument or agreement required hereunder.
Section 12. Effects of Amendment on Note Documents. Each party hereto acknowledges and agrees that, on and after the Second Amendment Effective Date, (i) this Amendment shall constitute a Note Document for all purposes under the Note Purchase Agreement and (ii) each reference in any Note Document, and in any other document or instrument incidental thereto, to the “Note Purchase Agreement” shall mean and be a reference to the Note Purchase Agreement, as amended by this Amendment.
Section 13. Reaffirmation. Each Loan Party signatory hereto, as debtor, grantor, pledgor, guarantor, assignor, or in any other similar capacity in which such Person grants liens or security interests in its property or otherwise acts as accommodation party or guarantor, as the case may be, hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the Note Documents to which it is a party (after giving effect to this Amendment), (ii) confirms that, as of May 15, 2023, and assuming no further repayment of any such Notes prior thereto, the principal amount of the Notes outstanding under the Note Purchase Agreement shall be $4,758,816, and the principal amount of the Delayed Draw Term Notes outstanding under the Note Purchase Agreement (as amended by this Amendment) shall be $0.00 (which amount is exclusive of the Delayed Draw Note Commitment Fee), and (iii) to the extent such Person granted liens on or security interests in any of its property pursuant to any such Note Document as security for or otherwise guaranteed all or any portion of the Obligations under or with respect to the Note Documents, ratifies and reaffirms such guarantee and grant of security interests and liens and confirms and agrees that such security interests and liens hereafter secure all of the Obligations purported to be secured by such Note Documents, as amended hereby. Each Loan Party hereby consents to this Amendment and acknowledges that each of the Note Documents, as amended hereby, remains in full force and
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effect and is hereby ratified and reaffirmed.
Section 14. General Release. In consideration of, among other things, the Purchasers’ and the Collateral Agent’s execution and delivery of this Amendment, the Company and each other Loan Party, on behalf of itself and its agents, representatives, officers, directors, advisors, employees, subsidiaries, affiliates, successors and assigns (collectively, “Releasors”), hereby forever agrees and covenants not to sue or prosecute against any Releasee (as hereinafter defined) and hereby forever waives, releases and discharges, to the fullest extent permitted by law, each Releasee from any and all claims (including, without limitation, crossclaims, counterclaims, rights of set-off and recoupment), actions, causes of action, suits, debts, accounts, interests, liens, promises, warranties, damages and consequential damages, demands, agreements, bonds, bills, specialties, covenants, controversies, variances, trespasses, judgments, executions, costs, expenses or claims whatsoever, that such Releasor now has or hereafter may have, of whatsoever nature and kind, whether known or unknown, whether now existing or hereafter arising, whether arising at law or in equity (collectively, the “Claims”), against the Collateral Agent and Purchasers in any capacity and their affiliates, subsidiaries, shareholders and “controlling persons” (within the meaning of the federal securities laws), and their respective successors and assigns and each and all of the officers, directors, employees, agents, attorneys, advisors and other representatives of each of the foregoing (collectively, the “Releasees”), based in whole or in part on facts, whether or not now known, existing on or before the Second Amendment Effective Date, that relate to, arise out of or otherwise are in connection with: (i) any or all of the Note Documents or transactions contemplated thereby or any actions or omissions in connection therewith, (ii) any aspect of the dealings or relationships between or among the Company and the other Loan Parties, on the one hand, and the Collateral Agent and/or the Purchasers, on the other hand, relating to any or all of the documents, transactions, actions or omissions referenced in clause (i) hereof, or (iii) any aspect of the dealings or relationships between or among any or all of the Loan Parties, on the one hand, and the Purchasers, on the other hand, but only to the extent such dealings or relationships relate to any or all of the documents, transactions, actions or omissions referenced in clause (i) hereof. The receipt by the Company or any other Loan Party of the proceeds of any Notes or other financial accommodations made by the Collateral Agent and the Purchasers after the Second Amendment Effective Date shall constitute a ratification, adoption, and confirmation by such party of the foregoing general release of all Claims against the Releasees that are based in whole or in part on facts, whether or not now known or unknown, existing on or prior to the date of receipt of any such proceeds or other financial accommodations. In entering into this Amendment, the Company and each other Loan Party consulted with, and has been represented by, legal counsel and expressly disclaim any reliance on any representations, acts or omissions by any of the Releasees and hereby agree and acknowledge that the validity and effectiveness of the releases set forth above do not depend in any way on any such representations, acts and/or omissions or the accuracy, completeness or validity thereof. The provisions of this Section shall survive the termination of this Amendment, the Note Purchase Agreement, the other Note Documents and payment in full of the Obligations.
Section 15. Covenant Not to Sue. Each Releasor, on behalf of itself and its successors, assigns and other legal representatives, hereby absolutely, unconditionally and irrevocably covenants and agrees with and in favor of each Releasee that such Releasor will not sue (at law, in equity, in any regulatory proceeding or otherwise) any Releasee on the basis of
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any Claim released, remised and discharged by the Releasors pursuant to Section 14 hereof. If the Releasors or any of their respective successors, assigns or other legal representatives violate the foregoing covenant, each Releasor, for itself and its successors, assigns and legal representatives, agrees to pay, in addition to such other damages as any Releasee may sustain as a result of such violation, all reasonable attorneys’ fees and costs incurred by any Releasee as a result of such violation.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first set forth above.
Company:
NEPTUNE WELLNESS SOLUTIONS
INC., a Québec Corporation
By: /s/ Raymond Silcock
Name: Raymond Silcock
Title: CFO
NEPTUNE GROWTH VENTURES,
INC. (acknowledging Section 4 of this Amendment)
By: /s/ Raymond Silcock
Name: Raymond Silcock
Title: Treasurer
SPROUT FOODS, INC. (acknowledging Sections 4 and 6(b)-(c) of this Amendment)
By: /s/ Sarah Tynan
Name: Sarah Tynan
Title: CEO
Second Waiver and Amendment to Note Purchase Agreement
Collateral Agent:
CCUR HOLDINGS, INC.
By: /s/ Igor Volshteyn
Name: Igor Volshteyn
Title: CEO
Second Waiver and Amendment to Note Purchase Agreement
Purchasers:
CCUR HOLDINGS, INC.
By: /s/ Igor Volshteyn
Name: Igor Volshteyn
Title: CEO
ADDRESS:
3800 N. Lamar Blvd. Suite 200
Austin, TX 78756
Attention: Igor Volshteyn, Matthew Gerritsen Email:
SYMBOLIC LOGIC, INC.
By: /s/ Igor Volshteyn
Name: Igor Volshteyn
Title: CEO
ADDRESS:
3800 N. Lamar Blvd. Suite 200
Austin, TX 78756 Attention: Igor Volshteyn Email:
Second Waiver and Amendment to Note Purchase Agreement
Annex I
Execution Version
ANNEX I TO WAIVER AND SECOND AMENDMENT CONFORMED NOTE PURCHASE AGREEMENT THROUGH SECOND AMENDMENT
NOTE PURCHASE AGREEMENT
by and among
NEPTUNE WELLNESS SOLUTIONS INC.
as Company, CCUR HOLDINGS, INC.
as Collateral Agent and
the Purchasers from time to time party hereto
Dated as of January 12, 2023
As amended by that certain Waiver and First Amendment to Note Purchase Agreement dated as of March 9, 2023 and as further amended by that certain Waiver and Second Amendment to Note Purchase Agreement dated as of May 22, 2023
313510594_25
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS 1
ARTICLE 2 TERM LOANS 12
ARTICLE 3 INTEREST AND PAYMENTS 14
ARTICLE 4 CONDITIONS TO THE OBLIGATIONS OF THE PURCHASERS 17
ARTICLE 5 CONDITIONS TO OBLIGATIONS OF THE LOAN PARTIES 20
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF THE LOAN PARTIES 20
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ARTICLE 7 REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS 28
ARTICLE 8 AFFIRMATIVE COVENANTS 29
ARTICLE 9 NEGATIVE COVENANTS 34
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ARTICLE 10 AGENCY PROVISIONS 38
ARTICLE 11 EVENTS OF DEFAULT 44
ARTICLE 12 INDEMNIFICATION 46
ARTICLE 13 MISCELLANEOUS 47
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Exhibits
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NOTE PURCHASE AGREEMENT
NOTE PURCHASE AGREEMENT, dated as of January 12, 2023, by and among NEPTUNE WELLNESS SOLUTIONS INC., a corporation incorporated under the Business Corporations Act (Québec) and domiciled in Canada (the “Company”), certain subsidiaries of the Company party hereto from time to time as Guarantors, CCUR HOLDINGS, INC., a Delaware corporation as collateral agent (in such capacity, “Collateral Agent”) and purchaser (and together with any other purchaser party hereto from time to time, the “Purchasers”).
STATEMENT OF PURPOSE:
WHEREAS, the Company wishes to sell to the Purchasers, and the Purchasers wish to purchase on the terms and conditions set forth herein, senior secured promissory notes issued by the Company to the Purchasers in an aggregate principal amount of $5,000,000, substantially in the form of Exhibit A hereto; and
WHEREAS, the Company is willing to secure all of the Obligations by granting to the Collateral Agent, for the benefit of the Holders, a Lien upon substantially all of its assets subject to any limitations set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1 DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms have the meanings indicated:
“Affiliate” means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including without limitation (a) with respect to any such Person that is an entity, any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such Person and (b) with respect to any such Person that is an individual, such individual’s spouse, lineal ancestors, lineal blood or adopted descendants, and any trust or other estate planning vehicle for any of their benefit or any entity in which only such persons own equity interests. A Person shall be deemed to control another Person if the controlling Person owns ten percent (10%) or more of any class of voting securities (or other ownership interests) of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of Capital Stock, by contract or otherwise. None of the Collateral Agent, Purchaser, the Holders nor any of their respective Affiliates shall be, or be deemed to be, an Affiliate of any Loan Party.
“Agreement” means this Note Purchase Agreement, including the exhibits and schedules attached hereto, as the same may be amended, supplemented or modified in accordance with the terms hereof.
“Applicable Insolvency Laws” means the United States Bankruptcy Code (11 USC § 101, et seq.) and all other liquidation, bankruptcy, assignment for the benefit of creditors,
conservatorship, moratorium, receivership, insolvency, rearrangement, reorganization or similar debtor relief laws of the United States or any political subdivision thereof or other applicable jurisdictions in effect from time to time.
“Assignment of Claims Act” means, collectively, the Assignment of Claims Act of 1940, as amended, any applicable rules, regulations and interpretations issued pursuant thereto and any amendments to any of the foregoing.
“Biodroga” means Biodroga Nutraceuticals Inc., a corporation incorporated under the Business Corporations Act (Québec) and domiciled in Canada.
“Biodroga Assets” means all assets and receivables of Biodroga.
“Biodroga LP” means Biodroga Nutraceuticals L.P., a limited partnership organized in Quebec and domiciled in Canada.
“Board” means the board of directors of the Company.
“Budget” means revenue, income statement and cash flow budgets and projections for the Company and its Subsidiaries, in each case, (i) prepared by management of the Company in good faith based upon reasonable assumptions, (ii) consistent in scope with the Financial Statements referred to in Section 6.11 and (iii) in form and substance reasonably satisfactory to the Required Holders.
“Budget Certificate” means a budget certificate in the form attached hereto as Exhibit
B.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks in the State of New York are authorized or required by law or executive order to close.
“Capital Expenditure” means any expenditure for any purchase or other acquisition of any asset which would be classified as a fixed or capital asset on a balance sheet prepared in accordance with GAAP (including, without limitation, the capitalized portion of any software development costs), excluding (a) the cost of assets acquired pursuant to Capitalized Leases, (b) expenditures of insurance proceeds (or other similar recoveries) to rebuild or replace any asset after a casualty loss or cash awards of compensation arising from the taking of eminent domain or condemnation (c) leasehold improvement expenditures for which the Person is reimbursed promptly by the lessor.
“Capital Stock” means (a) any capital stock, partnership, membership, joint venture or other ownership or equity interest, participation or securities (whether voting or non-voting, whether preferred, common or otherwise), and (b) any option, warrant, security or other right (including Debt securities or other evidence of Debt) directly or indirectly convertible into or exercisable or exchangeable for, or otherwise to acquire directly or indirectly, any capital stock, partnership, membership, joint venture or other ownership or equity interest, participation or security described in clause (a) above.
“Capitalized Lease” of a Person means any lease of Property by such Person as lessee which would be capitalized on a balance sheet of such Person prepared in accordance with GAAP.
“Capitalized Lease Obligations” of any Person shall mean the amount of the obligations of such Person under Capitalized Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with GAAP.
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“Cash” means the currency of the United States of America.
“Cash Equivalents” means (a) short-term obligations of, or fully guaranteed by, the United States of America or any agency or instrumentality thereof, (b) commercial paper rated A-1 or better by S&P or P-1 or better by Moody’s, (c) demand deposit accounts maintained in the ordinary course of business, and (d) certificates of deposit issued by and time deposits with commercial banks (whether domestic or foreign) having capital and surplus in excess of $100,000,000; provided in each case that the same provides for payment of both principal and interest (and not principal alone or interest alone) and is not subject to any contingency regarding the payment of principal or interest.
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended.
“Change of Control” means (i) the consummation of a merger, consolidation, reorganization, amalgamation, arrangement, sale of Capital Stock by the Company or any holder of the Company’s Capital Stock, sale or other disposition of all or substantially all of the consolidated assets of the Company (other than Permitted Asset Dispositions and Specified Asset Dispositions) that results in
(A) any change in the selection or composition of a majority of the Board as in effect on the Initial Closing Date or (B) any person or “group” (within the meaning of Rules 13d-3 and 13d-5 of the Exchange Act) directly or indirectly owning or controlling in excess of fifty percent (50%) of the economic or voting interests of the Company that does not, as of the Initial Closing Date, directly or indirectly, own or control in excess of 50% of the voting interests of the Company, (ii) the failure of the Company to beneficially own and control, directly or directly, in the same manner it owns on the Initial Closing Date the Capital Stock of its Subsidiaries) on the Initial Closing Date (other than the Capital Stock of Biodroga or 9354-7537 Québec Inc., subject to the Company’s compliance with Section 3.2(d)(ii)), or (iii) the failure of the Company to maintain the power to elect a majority of the board of directors (or similar governing body) of each Subsidiary and to direct the management policies and decisions of each Subsidiary (including with respect to Sprout).
“Claims Assignment” means an assignment in a form approved by the Required Holders, properly completed and signed by an officer of the Company.
“Closing” has the meaning assigned to that term in Section 2.3.
“Closing Dates” has the meaning assigned to that term in Section 2.3.
“Code” means the Internal Revenue Code of 1986, as amended, or any successor statute
thereto.
“Collateral” has the meaning set forth in the Security Agreement.
“Collateral Documents” means the Security Agreement, the Intellectual Property Security Agreements, each deposit account control agreement and each other agreement or writing pursuant to which the Company or any Subsidiary thereof purports to pledge or grant a security interest in any property or assets securing the Obligations, or any such Person purports to guarantee the payment and/or performance of the Obligations, in each case, as amended, restated, supplemented or otherwise modified from time to time.
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“Commission” means the U.S. Securities and Exchange Commission or any similar agency then having jurisdiction to enforce the Securities Act or the applicable securities laws of such jurisdiction.
“Company” has the meaning given to that term in the preamble hereof and shall extend to all permitted successors and assigns of such Person.
“Confidential Information” means all information disclosed by a Loan Party that (a) relates to such Loan Party’s business, properties, liabilities (other than the Obligations), technology, Intellectual Property assets, trade secrets, inventions, know-how, software programs, software source documents, financial or business plans, financial projections and affairs, employment arrangements, financial statements, internal management tools and systems, products and product development plans, marketing plans, customers, clients and contracts, and (b) to the extent such information is provided following the Initial Closing Date (other than information provided as required by the terms of this Agreement, which shall be deemed to be Confidential Information), is designated by such Loan Party as confidential by means of appropriate markings. Confidential Information will not include any information or data (i) that has become publicly known through no wrongful act of the recipient of such information, (ii) has been received by the recipient from a third party not known by the recipient to be under any obligation of confidentiality to a Loan Party without breach by the recipient of this Agreement or any other agreement with any Loan Party, or (iii) has been approved for release by written authorization of such Loan Party.
“Cannabis Operations” means all cannabis disposal group assets listed on the Company’s balance sheet for the fiscal quarter ending June 30, 2022 and classified as assets held for sale in connection with the planned divestiture of the Canadian cannabis business (including, without limitation, (i) the licenses of any Subsidiary related to the ownership, production, sale or similar such rights in the operation of the Cannabis business and (ii) the manufacturing plant of the Company used in the operation of cannabis located at 795 Rue Pépin, Sherbrooke, QC J1L 2E9, Canada (the “Plant”).
“Cannabis Sale” has the meaning given to that term in Section 4.1(d).
“Controlled Group” means a “controlled group of corporations” (as defined in Section 1563(a) of the Code) in which the Company is a member.
“Contractual Obligations” means as to any Person, any provision of any security issued by such Person or of any agreement, undertaking, contract, indenture, mortgage, deed of trust or other instrument or arrangement (whether in writing or otherwise), other than a Note Document, to which such Person is a party or by which it or any of such Person’s property is bound.
“Debt” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money; (b) all obligations issued, undertaken or assumed by such Person as the deferred purchase price of property or services (other than trade payables entered into in the ordinary course of business on ordinary terms); (c) all obligations of such Person evidenced by notes, bonds, debentures or similar instruments; (d) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property); (e) all Capitalized Lease Obligations of such Person; (f) all indebtedness of such Person referred to in clauses (a) through (e) above secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and contracts rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Debt (it being understood that if such
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Person has not assumed or otherwise become personally liable for any such Debt, the amount of the Debt of such Person in connection therewith shall be limited to the lesser of the face amount of such Debt or the fair market value of all property of such Person securing such Debt); and (g) all guaranties of such Person of any Debt of another Person.
“Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“Default Rate” has the meaning given to that term in Section 3.1(c). “Delayed Draw Commitment Termination Date” means February 28, 2023. “Delayed Draw Note” has the meaning set forth in Section 2.1(b).
“Delayed Draw Note Commitment” means, with respect to each Purchaser, the commitment, if any, of such Purchaser to purchase the Delayed Draw Notes, expressed as an amount representing the maximum principal amount of the Delayed Draw Notes to be purchased by such Purchaser. The amount of each Purchaser’s Delayed Draw Note Commitment is set forth on Schedule
2.1. The aggregate amount of the Purchasers’ Delayed Draw Note Commitment shall not exceed
$1,000,000.00.
“Delayed Draw Note Commitment Fee” has the meaning given to that term in Section
2.2(c).
“Delayed Draw Purchase Price” has the meaning given to that term in Section 2.1(b).
“Distributions” by a Person means (a) dividends or other distributions on any now or hereafter outstanding Capital Stock of such Person, (b) the redemption, repurchase, defeasance or acquisition of such Capital Stock or of warrants, rights or other options to purchase such Capital Stock, and (c) any loans or advances (other than salaries, bonuses or reimbursement of employee expenses in the ordinary course of business), to any stockholder(s), partner(s) or member(s) of such Person.
“Dollar” and the sign “$” mean lawful money of the United States of America.
“Environmental Laws” means any and all federal, state, local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions, Licenses, concessions, grants, franchises, agreements and other governmental restrictions relating to
(a) the protection of the environment, (b) the effect of the environment on human health, (c) emissions, discharges or releases of pollutants, contaminants, hazardous substances or wastes into surface water, ground water, air or land, or (d) the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, hazardous substances or wastes or the clean-up or other remediation thereof, including, without limitation, the Clean Air Act, 42 U.S.C. § 7401 et seq., the Clean Water Act, 33 U.S.C. § 1251 et seq., the Solid Waste Disposal Act (as amended by the Resource Conservation and Recovery Act), 42 U.S.C. § 6901 et seq., and CERCLA.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means a corporation that is or was a member of a controlled group of corporations with the Company within the meaning of Section 4001(a) or (b) of ERISA or Section 414(b) of the Code, a trade or business (including a sole proprietorship, partnership, trust, estate or corporation)
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that is under common control with any Loan Party within the meaning of Section 414(m) of the Code, or a trade or business which together with any Loan Party is treated as a single employer under Section 414(o) of the Code.
“Erroneous Payment” has the meaning assigned to it in Section 10.9(a).
“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 10.9(d)(i).
“Erroneous Payment Impacted Class” has the meaning assigned to it in Section
10.9(d)(i).
“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section
10.9(d)(i).
“Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section
10.9(e).
“Event of Default” has the meaning assigned to that term in Section 11.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Excluded Subsidiary” means each of (i) Sprout, (ii) the Inactive Affiliates and N Real Estate L.P., in each case, on the condition that such Person continues to hold no assets or carry on any activities other than assets or activities of the type permitted by Sections 6.13 and 9.15, and (iii) each other Subsidiary approved by the Required Holders in their sole discretion.
“Exit Fee” has the meaning assigned to that term in Section 2.2(d).
“Extension Fee” has the meaning assigned to that term in Section 2.2(e).
“Extraordinary Receipt” means any Cash received by or paid to or for the account of any Loan Party not in the ordinary course of business (and not consisting of proceeds described in any of Section 3.2(d)(i), (ii), (iii) or (v), proceeds of any equity or equity-linked financing or any other proceeds to the extent that such proceeds are received by any Loan Party in respect of any third party claim against such Loan Party for actual losses (and not any special, consequential or punitive damages) and applied to pay (or reimburse such Loan Party for its prior payment of) such claim plus related costs and expenses).
“FDA Laws” means any and all federal, state, local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions, Licenses, concessions, and other governmental restrictions relating to the ownership, testing, development, manufacture, packaging, processing, holding, use, distribution, marketing, labeling, promotion, sale, offer for sale, storage, import, export or disposal of food, cosmetic, and/or dietary supplement products, including without limitation, (i) the Federal Food, Drug and Cosmetic Act and all applicable regulations and requirements adopted by the U.S. Food and Drug Administration (“FDA”), (ii) the Organic Foods Production Act of 1990 and all other applicable statutes, regulations and requirements adopted by the
U.S. Department of Agriculture (“USDA”); (iii) all applicable statutes enforced by the U.S. Federal Trade Commission (“FTC”) and the applicable FTC regulations and requirements; and (iv) any applicable requirements established by any other federal, state, county, city, local or foreign Governmental Authority responsible for regulating food, cosmetic, and/or dietary supplement products.
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“Financial Statements” has the meaning given that term in Section 6.11(a).
“First Amendment” means that certain Waiver and First Amendment to Note Purchase Agreement, dated as of March 9, 2023, by and among the Company, the other Loan Parties party thereto, the Collateral Agent, and the Purchasers party thereto.
“First Amendment Effective Date” means March 9, 2023.
“Fiscal Quarter” means in respect of a date as of which the applicable financial covenant is being calculated or financial report is being furnished, any fiscal quarter of a Fiscal Year (currently the three month periods ending on or about each March 31, June 30, September 30 and December 31 annually).
“Fiscal Year” means the fiscal year for financial accounting and reporting purposes of the Company (currently the fiscal year ending March 31).
“Funded Debt” means, as of any date of determination, all outstanding Debt of the types described in clauses (a), (b), (c), (d) and (f) of the definition of “Debt” as of such date.
“GAAP” means generally accepted accounting principles in effect within the United States from time to time, consistently applied, not giving effect to FASB ASC 842.
“Government” means the United States government or any agency, department or instrumentality thereof.
“Government Contract” means a Government Prime Contract or a Government
Subcontract.
“Government Prime Contract” means any written agreement, commitment, contract or instrument or other binding arrangement between the Company and the Government where the Company is the prime contractor.
“Government Subcontract” means any written agreement, commitment, contract or instrument or other binding arrangement between the Company and any Person that is the prime contractor under a related contract with the Government where the Company is a subcontractor of such prime contractor.
“Governmental Authority” means the government of any nation, state, city, locality or other political subdivision of any thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, regulation or compliance, including, without limitation, any federal, state or local public utility commission, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.
“Guarantor(s)” means each of the Company’s Subsidiaries (other than any Excluded Subsidiary) and each other Person, if any, that executes the Security Agreement, a guaranty or other similar agreement in favor of Collateral Agent, for ratable benefit of the Holders, in connection with the transactions contemplated by this Agreement and the other Note Documents.
“Holder” means each holder of a Note hereunder.
8
“Inactive Affiliates” means, collectively, Neptune Wellness Solutions, L.P., 9463-5521 Québec Inc., 9463-5463 Québec Inc., Neptune Wellness Brands Canada, L.P., 9463-5513 Québec Inc., Neptune Bio Nutraceuticals L.P. and Biodroga LP.
“Incremental Equity Issuance” means the sale by the Company of Capital Stock (not constituting Disqualified Equity) following the Initial Closing Date but prior to the Delayed Draw Commitment Termination Date.
“Indemnified Party” has the meaning given to that term in Section 12.1.
“Insolvency Proceeding” means, with respect to any Person, (a) any case, action or proceeding with respect to such Person before any court or other governmental authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors (including any proceeding under the United States Bankruptcy Code, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or any Applicable Insolvency Law) or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors, or other, similar arrangement in respect of such Person’s creditors generally or any substantial portion of such creditors.
“Intellectual Property” has the meaning ascribed to such term in the Security
Agreement.
“Interest Property License” has the meaning given to that term in Section 6.22(f).
“Intellectual Property Security Agreement” means each trademark security agreement, patent security agreement and copyright security agreement, between any Loan Party and the Collateral Agent, as amended, restated, supplemented or otherwise modified from time to time.
“Interest Rate” has the meaning given to that term in Section 3.1(a).
“Liabilities” has the meaning given to that term in Section 12.1.
“Licenses” means all licenses, permits, authorizations, determinations, and registrations issued by any Governmental Authority to any Loan Party or any Subsidiary in connection with the conduct of its business.
“Lien” means any security interest, mortgage, deed of trust, pledge, hypothecation, assignment, license, charge or deposit arrangement, encumbrance, lien (statutory or other) or preferential arrangement of any kind or nature whatsoever in respect of any property (including those created by, arising under or evidenced by any conditional sale or other title retention agreement, the interest of a lessor under a capital lease, or any financing lease having substantially the same economic effect as any of the foregoing, but not including the interest of a lessor under an operating lease and including any exclusive or non-exclusive license of Intellectual Property).
“Loan Parties” means the Company and each Guarantor.
“Major Casualty Proceeds” means (i) the aggregate insurance proceeds received in Cash connection with one or more related events under any property insurance policy or business interruption insurance policy or (ii) any award or other compensation received in Cash with respect to any eminent domain, condemnation of property or similar proceedings (or any transfer or disposition of property in lieu of condemnation), if the amount of such aggregate insurance proceeds or award or other compensation
9
exceeds $150,000, in each case, less (a) any out-of-pocket fees, costs and expenses
10
reasonably incurred by the Company or any Subsidiary in connection therewith, (b) the amount of any Debt secured by a Permitted Lien on the related asset and discharged from the proceeds of such event, (c) any Taxes paid or reasonably estimated by the applicable Loan Party or Subsidiary to be payable by such Person as a consequence of such event (provided, that if the actual amount of Taxes actually paid is less than the estimated amount, the difference shall immediately constitute Major Casualty Proceeds), (d) the amount of any reserve established in accordance with GAAP (provided that such reserved amounts shall be Major Casualty Proceeds to the extent and at the time of any reversal (without the satisfaction of any applicable liabilities in a corresponding amount) of any such reserve) and (e) proceeds, awards and compensation applied towards the repair, restoration or replacement of property or assets.
“Material Adverse Effect” means an effect that results in or causes (a) a material adverse change in, or a material adverse effect upon, the assets, liabilities, business, properties, operations, or condition (financial or otherwise) of the Company and its Subsidiaries, (b) a material adverse effect upon the legality, validity, binding effect or enforceability against the Company or any of its Subsidiaries of any Note Document or (c) material adverse effect upon the validity of any Intellectual Property of the Company or its Subsidiaries or any of the Company’s or its Subsidiaries’ rights or interests in respect thereof or thereto, including but not limited to as a result of an adverse order, determination or decision by a Governmental Authority.
“Material Contract” means as of any date of determination, any written contracts, agreements, commitments and other Contractual Obligations of any Loan Party that accounts for five percent (5%) or more of the revenue of the Loan Parties, taken as a whole, over the twelve-month trailing period ending on such date.
“Maturity Date” has the meaning given to that term in Section 3.2(a).
“Moody’s” means Moody’s Investors Service, Inc.
“N Real Estate” means N Real Estate L.P., an Ontario limited partnership “Neptune Holding” means Neptune Holding USA, Inc., a Delaware corporation “Neptune Growth” means Neptune Growth Ventures, Inc., a Delaware corporation
“Net Cash Proceeds” means, with respect to any transaction or event, an amount equal to the Cash proceeds received by any Loan Party (or any Subsidiary) from or in respect of such transaction or event (including Cash proceeds of any non-Cash proceeds of such transaction), less (i) any out-of-pocket expenses paid to a Person that are reasonably incurred by such Loan Party or Subsidiary in connection therewith, (ii) the amount of any reserve established (provided that such reserved amounts shall be Net Cash Proceeds to the extent and at the time of any reversal (without the satisfaction of any applicable liabilities in a corresponding amount) of any such reserve) and (iii) taxes paid or payable or reasonably estimated to be paid or payable as a result thereof in that year or the next succeeding year.
“Notes” has the meaning given to that term in Section 2.1(a).
“Note Documents” means this Agreement, the Warrants, the Registration Rights Agreement, the Notes, the Collateral Documents and each other agreement, document or certificate delivered pursuant to this Agreement or the Notes, in each case, as amended, restated, supplemented or otherwise modified from time to time.
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“Obligations” means all obligations of every nature of the Company or any other Loan Party, as applicable, from time to time owed to the Collateral Agent or any Holder under the Note Documents, whether for principal, interest, fees, expenses, indemnification or otherwise; provided, however, for the avoidance of doubt, no obligations owing by any Loan Party to any Holder or any Affiliate of any Holder, or their respective successors or assigns, in respect of or pursuant to any equity investment made by any Holder or any Affiliate of any Holder, or their respective successors and assigns, in the Company or any other Loan Party shall be included in the Obligations.
“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets
Control.
“Organizational Documents” means the limited liability company agreement or bylaws (as applicable), certificate or articles of formation or certificate or articles of incorporation (as applicable), shareholders’ agreement, membership agreement or any other agreements among equity holders that are known to the Company, and other similar organizational and governing documents of the Company and its Subsidiaries.
“Origination Fee” has the meaning given to that term in Section 2.2(b). “Payment Recipient” has the meaning assigned to it in Section 10.9(a).
“Permitted Asset Disposition” means (i) dispositions of inventory or used, obsolete, worn-out or surplus equipment, all in the ordinary course of the Loan Parties’ business, (ii) dispositions of Cash and Cash Equivalents and (iii) sales, transfers and other dispositions of accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of the Loan Parties’ business.
“Permitted Liens” means those Liens permitted pursuant to Section 9.2.
“Person” means any individual, firm, corporation, limited liability company, partnership, trust, incorporated or unincorporated association, joint venture, joint stock company, Governmental Authority or other entity of any kind, and shall include any successor (by merger or otherwise) of such entity.
“Plant” has the meaning given to that term in the definition of “Plant Operations”.
“Premium” has the meaning given to that term in Section 3.2(d)(vi).
“Pro Forma Balance Sheet” has the meaning set forth in Section 6.1.
“Pro Rata Share” means, with respect to each Holder, the share of Notes held by such Holder in proportion to the aggregate outstanding Notes held by all Holders or each Holder’s unfunded commitment to purchase Notes in proportion to the aggregate commitment of all Holders to purchase Notes, as applicable.
“Property” of a Person means any and all property, whether real, personal, tangible, intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.
“Purchase Price” has the meaning given to that term in Section 2.1.
“Purchaser(s)” has the meaning given to that term in the preamble hereof.
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“Registration Rights Agreement” means the Registration Rights Agreement to be dated as of the Initial Closing Date and entered into by the Company and such other Persons party thereto, in the form attached hereto as Exhibit D.
“Related Person(s)” means, with respect to any Person, each Affiliate of such Person and each director, officer, employee, agent, trustee, representative, attorney, accountant and each insurance, environmental, legal, financial and other advisor and other consultants and agents of or to such Person or any of its Affiliates.
“Reportable Event” means a reportable event as defined in Section 4043 of ERISA and the regulations issued under such section, with respect to a Plan, excluding, however, such events as to which the PBGC has by regulation waived the requirement of Section 4043(a) of ERISA that it be notified within thirty (30) days of the occurrence of such event; provided, however, that a failure to meet the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any such waiver of the notice requirement in accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code.
“Required Holders” means the Holders of more than fifty percent (50%) of the outstanding principal balance of the Notes.
“Requirements of Law” means as to any Person, provisions of the Organizational Documents of such Person, or any law, treaty, code, rule, regulation, right, policy having compulsory effect, privilege, qualification, License or franchise or determination of an arbitrator or a court or other Governmental Authority, including without limitation the FDA Laws and the rules and regulations of the Commission, in each case applicable to such Person or any of such Person’s property or to which such Person or any of such Person’s property is subject or pertaining to any or all of the transactions contemplated or referred to herein.
“Sanctioned Entity” means (a) an agency of the government of, (b) an organization directly or indirectly controlled by, or (c) a Person resident in a country that is subject to a sanctions program identified on the list maintained by OFAC and available at http://www.treas.gov/offices/enforcement/ofac/programs, or as otherwise published from time to time as such program may be applicable to such agency, organization or person.
“Sanctioned Person” means a Person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC available at http://www.treas.gov/offices/ enforcement/ofac/sdn/index.html, or as otherwise published from time to time.
“Second Amendment” means that certain Waiver and Second Amendment to Note Purchase Agreement, dated as of May 22, 2023, by and among the Company, the other Loan Parties party thereto, the Collateral Agent, and the Purchasers party thereto.
“Second Amendment Effective Date” means May 15, 2023.
“Second Amendment Obligation” has the meaning given to that term in Section
3.2(d)(ii).
“Securities Act” means the Securities Act of 1933, as amended, or any similar federal statute, and the rules and regulations thereunder as the same shall be in effect at the time.
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“Security Agreement” means the Guarantee and Security Agreement, among the Loan Parties, the Collateral Agent, and the other parties thereto, as amended, restated, supplemented or otherwise modified from time to time.
“Specified Asset Disposition” means any sale or other consensual disposition of (i) all or part of the Capital Stock of Biodroga or (ii) all or any substantial portion of the Biodroga Assets, in each case, excluding all Permitted Asset Dispositions.
“Sprout” means Sprout Foods, Inc., a Delaware corporation.
“Sprout Incremental Note” has the meaning given to that term in Section 8.17(c).
“S&P” means S&P Global Ratings.
“Subsidiary” means, with respect to any Person, a corporation or other entity of which more than fifty percent (50%) of the voting power of the voting equity securities or equity interest is owned, directly or indirectly, by such Person.
“Tax” means (a) any federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, franchise profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on-minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto and (b) liability for the payment of any amounts of the type described in clause (a) as a transferee or successor, by contract, from any express or implied obligation to indemnify or otherwise assume or succeed to the liability of any other Person, or otherwise.
“Tax Return” means any return, declaration, report, or information return or statement relating to Taxes required to be filed with a Governmental Authority responsible for the administration of Taxes, including any schedule or attachment thereto, and including any amendment thereof.
“Transactions” means, collectively, (a) the issuance of the Notes and (b) the payment of all fees and expenses in connection therewith.
“Warrants” means the five-year warrants issued to the Holders on the Initial Closing Date, granting such Holders the right to purchase up to 850,000 shares of Common Stock of the Company, in the form attached hereto as Exhibit C.
ARTICLE 2 TERM LOANS
14
15
p.m. (New York City time) to the account of the Company most recently designated by it for such purpose by notice to the Holders. The Delayed Draw Notes issued to the Holders on the Second Closing Date shall be purchased by the Holders ratably in accordance with their respective Delayed Draw Note Commitments. The failure of any Holder to pay its Pro Rata Share of such Delayed Draw Purchase Price or portion thereof required to be made by it shall not relieve any other Holder of its obligations hereunder; provided, that the Delayed Draw Note Commitments of the Holders are several and no Holder shall be responsible for any other Holder’s failure to purchase its Pro Rata Share of the Delayed Draw Note as required.
$125,000.
16
Purchasers to withhold their respective Origination Fee from the delivery of their respective portion of the Purchase Price.
$100,000 (provided that if the Company files a Form S-1 Registration Statement for an offering on a “reasonable best efforts basis” of the Company’s common shares and warrants for common shares by no later than July 31, 2023, then the Company shall instead be obligated to prepay the $100,000 payment amount provided for herein by no later than August 30, 2023), and (ii) on the Maturity Date, $100,000.
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ARTICLE 3 INTEREST AND PAYMENTS
(i) January 12, 2024 (the “Scheduled Maturity Date”) or (ii) acceleration of the Note in accordance with the terms hereof (the earlier of clauses (i) and (ii), the “Maturity Date”), by payment in Cash in full of
18
the entire outstanding principal balance thereof, together with any unpaid interest accrued thereon to such date.
19
Any Premium payable in accordance with this Section 3.2 shall be presumed to be equal to the liquidated damages sustained by the Holders as the result of the occurrence of any event triggering the prepayment of such Premium and the Company agrees that it is reasonable under the circumstances currently existing. The parties hereto acknowledge that the Premium shall survive acceleration of the Obligations and/or the occurrence of any Insolvency Proceeding, and shall automatically accrue to the principal amount of the Notes and shall constitute part of the Obligations for all purposes herein. If the Notes are accelerated for any reason pursuant to the terms herein, the Premium shall be calculated as if the date of acceleration of the Notes was the date of prepayment of the Notes. THE COMPANY EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREMIUM IN CONNECTION WITH
ANY ACCELERATION. The Company expressly agrees that: (A) the Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Holders and the Company giving specific consideration in this transaction for such agreement to pay the Premium; (D) the Company shall be estopped hereafter from claiming differently than as agreed to in this paragraph; (E) the Company’s agreement to pay the Premium is a material inducement to Holders to purchase the Notes; and (F) the Premium represents a good faith, reasonable estimate and calculation of the lost profits or damages of Holders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Holders or profits lost by the Holders as a result of such event triggering payment of the Premium.
in Section 11.2.
20
ARTICLE 4
CONDITIONS TO THE OBLIGATIONS OF THE PURCHASERS
21
resolutions of the board of directors or similar governing body of such Loan Party approving the Note Documents to which it is a party and the Transactions are all true, complete and correct and remain unamended and in full force and effect and (ii) the incumbency and specimen signature of each officer of such Loan Party executing any Note Document to which it is a party or any other document delivered in connection herewith and therewith on behalf of such Loan Party.
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Company or any of its Domestic Subsidiaries (whether in existence as of the Initial Closing Date or as may be incurred hereafter (including, without limitation, the Sprout Incremental Note and any investments permitted under Section 9.5(g) or (h)), “Sprout’s Pledged Debt”) and the ability, upon the occurrence of a default on Sprout’s Pledged Debt or an Event of Default, of NGV to assign or otherwise transfer Sprout Pledged Debt to the Collateral Agent.
(B) The Collateral Agent shall have received instruments evidencing Sprout’s Pledged Debt required to be pledged pursuant to the Note Documents, indorsed in blank to the Collateral Agent or accompanied by an allonge indorsement in blank.
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Second Closing Date, and executed by the chief executive officer or chief financial officer on behalf of the Company.
ARTICLE 5
CONDITIONS TO OBLIGATIONS OF THE LOAN PARTIES
The obligations of the applicable Loan Parties to issue the Notes and to perform their other obligations hereunder on each Closing Date shall be subject to the reasonable satisfaction as determined by, or waived by, the Company of the following conditions on or before such Closing Date:
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF THE LOAN PARTIES
The following representations and warranties by the Company to the Purchasers are qualified by the Disclosure Schedules, which set forth certain disclosures concerning the Company and its business. The Company hereby represents and warrants to the Purchaser as of the date hereof as follows:
25
will be a party and to borrow hereunder. The jurisdictions in which each Loan Party is organized and qualified to do business as of the Initial Closing Date are listed on Schedule 6.1.
26
27
requirements of the Exchange Act (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the SEC Documents complied in all material respects with applicable accounting requirements and the published rules and regulations of the Commission with respect thereto as in effect as of the time of filing. Such financial statements have been prepared in accordance with GAAP, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which will not be material, either individually or in the aggregate). The Company is not currently contemplating amending or restating any of the financial statements (including, without limitation, any notes or any letter of the independent accountants of the Company with respect thereto) included in the SEC Documents (the “Financial Statements”), nor is the Company currently aware of facts or circumstances which would require the Company to amend or restate any of the Financial Statements, in each case, in order for any of the Financials Statements to be in compliance with GAAP and the rules and regulations of the Commission. The Company has not been informed by its independent accountants that they recommend that the Company amend or restate any of the Financial Statements or that there is any need for the Company to amend or restate any of the Financial Statements.
28
material weakness or significant deficiency in any part of the internal controls over financial reporting of the Company or any of its Subsidiaries.
Growth; and
Sprout Pledged Debt.
29
state securities or “blue sky” laws will be required for the offer, sale or issuance of the Notes by any Loan Party to the Purchasers pursuant to this Agreement.
30
ownership of the item; and (iv) no Loan Party has agreed to indemnify any Person for or against any interference, infringement, misappropriation or other conflict with respect to the item.
31
32
with any FDA Laws. No Loan Party has received any written or oral notice that the FDA or any other Governmental Authority has commenced, or threatened to initiate, any action to revoke such Loan Party’s registration, to request a recall, or to halt distribution of any of such Loan Party’s products, or commenced or threatened to initiate any action to seize, or enjoin the production of, any of such products. Neither any Loan Party nor its respective facilities are subject to consent decrees.
33
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser hereby represents and warrants as follows:
34
necessary action; and (b) does not contravene or violate the terms of its organizational documents or any amendment thereof.
ARTICLE 8 AFFIRMATIVE COVENANTS
Until the indefeasible payment in full in Cash of all of the Obligations (excluding contingent indemnification obligations for which no claims have been made), the Loan Parties hereby jointly and severally covenant and agree with the Holders as follows:
35
$150,000, individually or in the aggregate.
36
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the same fields of enterprise as it is presently conducted and do all things necessary to remain duly incorporated or organized, validly existing and (to the extent such concept applies to such entity) in good standing as a domestic corporation, partnership or limited liability company in its jurisdiction of incorporation or organization, as the case may be, and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted to the extent that the failure to maintain such qualification would not reasonably be expected to have a Material Adverse Effect; provided that the Company may (i) liquidate, wind-up or dissolve any Excluded Subsidiary so long as all assets of such Excluded Subsidiary are transferred to a Loan Party in connection with such transaction or merge a Excluded Subsidiary into a Loan Party, in each case upon written notice to the Collateral Agent, and (ii) transfer, sell or dispose of assets and properties in connection with Permitted Asset Dispositions and Specified Asset Dispositions, subject to compliance with the other provisions of this Agreement.
38
put in effect during such appeal) by any Governmental Authority against such Person or any Property of such Person.
39
and documents obtained under any provision of this Agreement, or related agreements and documents, provided that such prospective assignee or purchaser shall agree to maintain the confidentiality of such information.
ARTICLE 9 NEGATIVE COVENANTS
Until the payment in full in Cash of all of the Obligations (excluding contingent indemnification obligations for which no claims have been made), the Loan Parties hereby jointly and severally covenant and agree with the Holders as follows:
40
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unsecured Debt of a Loan Party that is subordinated in right of payment to the Obligations on terms acceptable to the Collateral Agent in its sole discretion; provided that (i) the maturity date of such unsecured Debt is not earlier than the date that is 90 days after the Scheduled Maturity Date, and (ii) such Debt does not require any payments of interest in cash of any currency (clauses (a) through (d), “Permitted Debt”).
42
9.1; and
43
44
and (b) the exercise by Holders of any of the Warrants, none of the Company nor any of its Subsidiaries shall (i) declare or pay any cash dividends on any of its Capital Stock, (ii) purchase or redeem any Capital Stock, (iii) make any other distribution of cash to holders of its Capital Stock, (iv) prepay, purchase or redeem any other Debt that is subordinated to the Obligations, or (v) set aside funds for any of the foregoing.
45
Collateral Agent, for the benefit of the Holders, a perfected security interest in, and Lien on, all Collateral owned by such Person by delivering to the Collateral Agent the Security Agreement, each other Collateral Document or such other document as the Collateral Agent shall deem appropriate for such purpose and comply with the terms of each Collateral Document, (ii) execute the Security Agreement as a Guarantor of the Obligations, (iii) deliver to the Collateral Agent such documents and certificates referred to in Section 4.1 as may be reasonably requested by the Required Holders or otherwise necessary or desirable to create or perfect Collateral Agent’s Lien on the Collateral, and (iv) deliver to the Collateral Agent and the Holders such other documents as may be reasonably requested by the Collateral Agent and the Required Holders, in each case, in form, content and scope reasonably satisfactory to the Required Holders.
(vii) deliver to the Collateral Agent and the Holders such other documents as may be reasonably
requested by the Collateral Agent and the Required Holders, in each case, in form, content and scope reasonably satisfactory to the Required Holders.
46
Expenditures (including the Capital Expenditure in question) made by the Loan Parties and their Subsidiaries, determined on a consolidated basis, during any Fiscal Year made or required to be made by the Loan Parties and their Subsidiaries, determined on a consolidated basis during such Fiscal Year would exceed $100,000.
47
48
permitted to engage in the following: (I) the maintenance of its legal existence (including the ability to incur fees, costs and expenses related to such maintenance); (II) the performance of its obligations under the Note Documents; (III) participating in Tax, accounting and other administrative matters as a member of the consolidated group of the Company and the Subsidiaries, in each case, not otherwise prohibited hereunder; and (IV) any Permitted Asset Dispositions or Specified Asset Dispositions.
ARTICLE 10 AGENCY PROVISIONS
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indicated or unless the context otherwise requires, include the Person serving as Collateral Agent hereunder in its individual capacity.
By accepting the benefits of this Agreement, each Holder severally agrees (A) to reimburse the Collateral Agent, on demand, in the amount of its ratable share from time to time (based on the principal amount of the Notes of such Holder) for any expenses referred to in this Agreement or in any document securing Obligations owed to such Holder and/or any other reasonable expenses incurred by the Collateral Agent in connection with the enforcement and protection of the rights of the Collateral Agent and the Holders which shall not have been paid or reimbursed by any Loan Party or paid from the proceeds of Collateral or as provided herein or therein and (B) to indemnify and hold harmless the Collateral Agent and its Affiliates and its and their respective directors, officers, employees, agents and attorneys on demand, in the amount of such ratable share, from and against any and all liabilities, Taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements referred to in this Agreement and/or incurred by the Collateral Agent in connection with this Agreement
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or in any document securing the Obligations or the enforcement and protection of the rights of Holders, to the extent the same shall not have been reimbursed by any Loan Party or paid from the proceeds of Collateral as provided herein; provided, however, in each case, that no Holder shall be liable to the Collateral Agent and its Affiliates and its and their respective directors, officers, employees, agents and attorneys for any portion of such expenses, liabilities, Taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Person.
(a) the retiring Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Note Documents and (b) all payments, communications and determinations provided to be made by, to or through the Collateral Agent shall instead be made by or to each Holder directly, until such time as the Required Holders appoint a successor Collateral Agent as provided for above in this paragraph. Upon the acceptance of a successor’s appointment as Collateral Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Collateral Agent, and the retiring Collateral Agent shall be discharged from all of its duties and obligations hereunder or under the other Note Documents (if not already discharged therefrom as provided above in this paragraph). After the retiring Collateral Agent’s resignation hereunder and under the other Note Documents, the provisions of this Article 10 shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be taken by any of them while the retiring Collateral Agent was acting as Collateral Agent.
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Upon request by the Collateral Agent at any time, the Holders will confirm in writing the Collateral Agent’s authority to release or subordinate its interest in particular types or items of property pursuant to this Section 10.7.
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this Agreement or in a notice of payment, prepayment or repayment sent by the Collateral Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Collateral Agent (or any of its Affiliates), or (z) that such Holder, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each such case:
(x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Collateral Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
For the avoidance of doubt, the failure to deliver a notice to the Collateral Agent pursuant to this Section 10.9(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 10.9(a) or on whether or not an Erroneous Payment has been made.
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the Collateral Agent (but the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Collateral Agent as the assignee Holder shall be deemed to have acquired the Erroneous Payment Deficiency Assignment, (C) upon such deemed acquisition, the Collateral Agent as the assignee Holder shall become a Holder, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Holder shall cease to be a Holder, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable commitments to purchase Notes which shall survive as to such assigning Holder, (D) the Collateral Agent and the Company shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Collateral Agent will reflect in the register its ownership interest in the Notes subject to the Erroneous Payment Deficiency Assignment. For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the commitments of any Holder to purchase Notes and such commitments to purchase Notes shall remain available in accordance with the terms of this Agreement.
(ii) Subject to Section 13.3 (but excluding, in all events, any assignment consent or approval requirements (whether from the Company or otherwise)), the Collateral Agent may, in its discretion, sell any Notes acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Holder shall be reduced by the net proceeds of the sale of such Note (or portion thereof), and the Collateral Agent shall retain all other rights, remedies and claims against such Holder (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Holder (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Collateral Agent on or with respect to any such Notes acquired from such Holder pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Notes are then owned by the Collateral Agent) and (y) may, in the sole discretion of the Collateral Agent, be reduced by any amount specified by the Collateral Agent in writing to the applicable Holder from time to time.
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ARTICLE 11 EVENTS OF DEFAULT
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interest shall become immediately due and payable, each holder of any Note shall be entitled to exercise all of its rights and remedies hereunder and under its Note whether at law or in equity.
ARTICLE 12 INDEMNIFICATION
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Subsidiaries in this Agreement or any other Note Document, including without limitation, the failure to make payment when due of amounts owing pursuant to this Agreement or any other Note Document, on the due date thereof (whether at the scheduled maturity, by acceleration or otherwise) or any legal, administrative or other actions (including, without limitation, actions brought by any holders of equity or Debt of the Company or any of its Subsidiaries or derivative actions brought by any Person claiming through or in the Company’s or any of its Subsidiaries’ name), proceedings or investigations (whether formal or informal), or written threats thereof, based upon, relating to or arising out of the Note Documents, the transactions contemplated thereby, or any Indemnified Party’s role therein or in the transactions contemplated thereby; provided, however, that the Company and its Subsidiaries shall not be liable under this Section 12.1 to an Indemnified Party to the extent such Liabilities resulted solely from the willful misconduct or gross negligence of an Indemnified Party, as determined by a final, non-appealable order of a court of competent jurisdiction; provided, further, that if and to the extent that such indemnification is unenforceable for any reason other than willful misconduct or gross negligence, the Company and its Subsidiaries, jointly and severally, shall make the maximum contribution to the payment and satisfaction of such Liabilities which shall be permissible under Requirements of Law. In connection with the obligation of the Company and its Subsidiaries to indemnify for expenses as set forth above, each of the Company and its Subsidiaries further agrees, upon presentation of invoices, to reimburse each Indemnified Party for all such expenses (including, without limitation, reasonable fees, disbursements and other charges of counsel and costs of investigation incurred by an Indemnified Party in connection with any Liabilities) as they are incurred by such Indemnified Party.
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ARTICLE 13 MISCELLANEOUS
3800 N. Lamar Blvd.
Suite 200
Austin, TX 78756
Attention: Igor Volshteyn, Matthew Gerritsen
Email: With a copy (which shall not constitute notice) to:
K&L Gates LLP
599 Lexington Avenue New York, NY 10022 Facsimile: (212) 536-3901
Attention: Aaron S. Rothman, Esq.
Email:
as set forth below its name on the signature pages hereto
Neptune Wellness Solutions Inc. 545 Promenade du Centropolis Suite 100
Laval, Quebec Canada H7T 0A3
Attention: General Counsel Email:
With a copy (which shall not constitute notice) to: Eisner, LLP
9601 Wilshire Blvd., 7th Floor Beverly Hills, CA 90210
Attention: Michael Eisner; Brian Kilb
Email:
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All such notices and communications shall be deemed to have been duly given: when delivered by hand, if personally delivered; when delivered by courier, if delivered by commercial overnight courier service; if mailed, five (5) Business Days after being deposited in the mail, postage prepaid; or if telecopied or e-mailed, when receipt is acknowledged (including by delivery receipt).
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the requesting party or parties. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Any signature (including, without limitation, (x) any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record and (y) any facsimile or .pdf signature) hereto or to any other Note Document, certificate, agreement or document related to this transaction, and any contract formation or record-keeping, in each case, through electronic means, shall have the same legal validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Uniform Commercial Code and the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act or any similar state law based on the Uniform Electronic Transactions Act, and the parties hereto hereby waive any objection to the contrary.
(ii) ACKNOWLEDGES THAT THE COLLATERAL AGENT AND THE HOLDERS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, AND THE OTHER NOTE DOCUMENTS TO WHICH IT IS PARTY BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
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(c) to the extent required by any Requirement of Law or by any subpoena or similar legal process; provided that, other than in connection with routine regulatory examinations, prior notice shall have been given to the Company, to the extent permitted by applicable laws or regulations, so that the Loan Parties may seek an appropriate protective order, and if, failing the entry of a protective order, any Holder is, in the opinion of its counsel, compelled to disclose Confidential Information, it may disclose that portion of the Confidential Information that its counsel advises that it is compelled to disclose and such Holder will exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to that portion of the Confidential Information that is being disclosed, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Note Document or any action or proceeding relating to this Agreement or any other Note Document or the enforcement of rights hereunder or thereunder, or to the extent necessary to respond to public statements or disclosures by the Loan Parties or their Related Persons referring to a Holder or any of their Related Persons in violation of the terms of this Agreement, (f) subject to an agreement containing provisions substantially the same as those of this Section 13.16, to (i) any assignee of or participant in, or any prospective assignee of or participant in, any of its rights and obligations under this Agreement, or (ii) any Holder’s financing sources or prospective financing sources, (g) with the consent of the Company or (h) to the extent consisting of general portfolio information that does not identify the Loan Parties.
Wherever in this agreement it is specified that interest is payable at a rate or percentage for a period of 360 days, 365 days or 366 days, the yearly rate or percentage of interest to which such interest rate is equivalent is the rate obtained by multiplying such rate by the actual number of days in the year and dividing by 360, 365 or 366, as the case may be.
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If any provision of this Agreement would oblige the Borrower to make any payment of interest or other amount payable to the Bank in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by the Purchasers or the Holders of “interest” at a “criminal rate” (as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by applicable law or so result in a receipt by the Purchasers or the Holders of “interest” at a criminal rate”, such adjustment to be effected, to the extent necessary (but only to the extent necessary) as follows: first, to the Premium, second, to that portion of the Obligations payable to the Purchasers or Holders constituting fees, expenses (including attorney fees) commissions, costs, other premiums and other amounts required to be paid hereunder that would constitute “interest” for purposes of section 347 of the Criminal Code (Canada) and third, by reducing the amount or rate of interest. In such event and to the extent needed, the provisions of this Agreement that contemplate the amounts to be so reduced shall, to the extent necessary, be deemed severed and deleted from this Agreement to that extent and the remaining provisions of this Agreement shall continue in full force and effect.
For purposes of any assets, liabilities or entities located in the Province of Québec and for all other purposes pursuant to which the interpretation or construction of this Agreement may be subject to the laws of the Province of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (i) “personal property” shall be deemed to include “movable property”, (ii) “real property” shall be deemed to include “immovable property”, (iii) “tangible property” shall be deemed to include “corporeal property”, (iv) “intangible property” shall be deemed to include “incorporeal property”, (v) “security interest”, “mortgage” and “lien” shall be deemed to include a “hypothec”, “prior claim”, “reservation of ownership” and a “resolutory clause”, (vi) all references to filing, registering or recording under the UCC or PPSA shall be deemed to include publication under the Civil Code of Québec, (vii) all references to “perfection” of or “perfected” liens or security interest shall be deemed to include a reference to an “opposable” or “set up” hypothec as against third parties, (viii) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (ix) an “agent” shall be deemed to include a “mandatary”, (x) “joint and several” shall be deemed to include “solidary”; (xi) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”; and (xii) “priority” shall be deemed to include “rank” or “prior claim”, as applicable.
The parties acknowledge that they have required that this Agreement and all documents, notices and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto be drawn up in English. Les parties reconnaissent avoir exigé la rédaction en anglais de la présente convention ainsi que de tous documents exécutés, avis donnés et procédures judiciaires intentées, directement ou indirectement, relativement ou à la suite de la présente convention.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their respective officers hereunto duly authorized as of the date first above written.
Company:
NEPTUNE WELLNESS SOLUTIONS INC., a
Québec Corporation
By:
Name:
Title:
[signature pages continue]
[Note Purchase Agreement]
Collateral Agent:
CCUR HOLDINGS, INC.
By: Name:
Title:
[Note Purchase Agreement]
Purchasers:
CCUR HOLDINGS, INC.
By:
Name: Igor Volshteyn
Title: President and CEO
ADDRESS:
3800 N. Lamar Blvd. Suite 200
Austin, TX 78756
Attention: Igor Volshteyn, Matthew Gerritsen Email:
SYMBOLIC LOGIC, INC.
By:
Name: Igor Volshteyn
Title: CEO ADDRESS:
3800 N. Lamar Blvd. Suite 200
Austin, TX 78756 Attention: Igor Volshteyn Email: igor@symbl.com