Closing and Payment. If there shall have not been validly tendered and not validly withdrawn that number of shares of Company Common Stock which, when added to the shares of Company Common Stock owned by Parent and its affiliates, would represent at least ninety percent (90%) of the shares of Company Common Stock outstanding on the Offer Closing Date, Acquisition Sub shall be deemed to have exercised the Top-Up Option on the Offer Closing Date and on such date shall give the Company written notice specifying the number of shares of Company Common Stock directly or indirectly owned by Parent and its subsidiaries at the time of such notice (giving effect to the Offer Closing). The Company shall, as soon as practicable following receipt of such notice (and in no event later than the Offer Closing Date), deliver written notice to Acquisition Sub specifying, based on the information provided by Acquisition Sub in its notice, the number of Top-Up Option Shares. At the closing of the purchase of the Top-Up Option Shares (the “Top-Up Closing”), which shall take place at the location specified in Section 2.6 and, to the extent such Top-Up Closing occurs, shall take place immediately following the Offer Closing and immediately prior to the Merger Closing, the purchase price owed by Acquisition Sub to the Company therefor shall be paid to the Company, at Acquisition Sub’s option, (i) in cash, by wire transfer of same-day funds, or (ii) by (x) paying in cash, by wire transfer of same-day funds, an amount equal to not less than the aggregate par value of the Top-Up Option Shares and (y) executing and delivering to the Company a promissory note having a principal amount equal to the aggregate purchase price pursuant to the Top-Up Option less the amount paid in cash pursuant to the preceding clause (x) (the “Promissory Note”). The Promissory Note (i) shall be due on the first (1st) anniversary of the Top-Up Closing, (ii) shall bear simple interest of five percent (5%) per annum, (iii) shall be full recourse to Parent and Acquisition Sub, (iv) may be prepaid, in whole or in part, at any time without premium or penalty, and (v) shall have no other material terms. At the Top-Up Closing, the Company shall cause to be issued to Acquisition Sub a certificate representing the Top-Up Option Shares.
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Closing and Payment. If there The closing of the Buy Option or Sell Option (the “Closing”) shall have be held at the principal office of the Purchasing Member (or at such other location as shall be reasonably designated by the Purchasing Member) on a business day (the “Closing Date”) selected by the Purchasing Member, which Closing Date shall not been validly tendered be more than ninety (90) days after the applicable option is properly exercised or deemed exercised. The terms of the purchase and not validly withdrawn sale shall be unconditional, except that number of shares of Company Common Stock which, when added the Selling Member shall be obligated to transfer to the shares Purchasing Member (or Purchasing Member’s nominee(s) good and marketable title to the entire Selling Member Interest, subject to no legal or equitable claims and free and clear of Company Common Stock owned by Parent all liens, security interests and its affiliatescompeting claims. The Selling Member shall deliver at the Closing such instruments of transfer and such evidence of due authorization, would represent at least ninety percent (90%) execution and delivery, and of the shares absence of Company Common Stock outstanding on the Offer Closing Dateany such liens, Acquisition Sub shall be deemed to have exercised the Top-Up Option on the Offer Closing Date and on such date shall give the Company written notice specifying the number of shares of Company Common Stock directly security interests, or indirectly owned by Parent and its subsidiaries at the time of such notice (giving effect to the Offer Closing). The Company shallcompeting claims, as soon as practicable following receipt of the Purchasing Member (or such notice (Purchasing Member’s nominees(s)) may reasonably request, including without limitation representations and in no event later than warranties regarding the Offer Closing Date), deliver written notice to Acquisition Sub specifying, based on the information provided by Acquisition Sub in its notice, the number of Top-Up Option Sharesforegoing. At the closing Closing, the following events shall occur:
(a) The Operator shall repay to the Investor, in cash or immediately available funds, the outstanding indebtedness, if any, then remaining on any Claw Back Loan deemed made to the Operator;
(b) The Purchasing Member or its nominee(s) shall, subject to the Holdback Amount, deliver an amount equal to the excess of the purchase of Payment Amount over the Top-Up Option Shares deposit then being held by the Escrow Company (the “Top-Up ClosingDeposit”), which shall take place at and cause the location specified Escrow Holder to deliver the Deposit, by cashier’s check or in Section 2.6 andimmediately available funds, to the extent such Top-Up Closing occurs, Selling Member;
(c) The Selling Member shall take place immediately following the Offer Closing and immediately prior deliver to the Merger ClosingPurchasing Member or its designee the instruments of transfer and other documentation described above;
(d) The Selling Member and the Purchasing Member shall cooperate with each other to structure the transfer in a tax and cost efficient manner, but only on the condition that neither Member shall be obligated to incur any additional cost, expense or liability as a result of such cooperation, the purchase price owed requesting Member shall reimburse the other Member for such other Member’s reasonable costs and expenses, including without limitation, legal fees incurred in reviewing and, if necessary, revising any documentation requested by Acquisition Sub to the Company therefor requesting Member, and such cooperating shall be paid to not delay the Company, at Acquisition Sub’s optionClosing; and
(e) Effective as of the Closing, (i) in cashthe Selling Member shall withdraw as a Member of the Company, by wire transfer of same-day funds, or and (ii) by (x) paying in cashif the Selling Member is Operator, by wire transfer of same-day funds, an amount equal to not less than then Operator shall be automatically removed as the aggregate par value Manager of the Top-Up Option Shares and (y) executing and delivering to the Company a promissory note having a principal amount equal to the aggregate purchase price pursuant to the Top-Up Option less the amount paid in cash pursuant to the preceding clause (x) (the “Promissory Note”)if it has not been previously so removed. The Promissory Note (i) shall be due on the first (1st) anniversary In connection with any such withdrawal of the Top-Up Closing, (ii) shall bear simple interest of five percent (5%) per annum, (iii) shall be full recourse to Parent and Acquisition Sub, (iv) may be prepaid, in whole or in part, at any time without premium or penalty, and (v) shall have no other material terms. At the Top-Up ClosingSelling Member, the Company shall Purchasing Member may cause any nominee designated in the sole and absolute discretion of the Purchasing Member to be issued to Acquisition Sub admitted as a certificate representing substitute member of the Top-Up Option SharesCompany.
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Closing and Payment. If there shall have not been validly tendered and not validly withdrawn that number of shares of Company Common Stock which, when added to the shares of Company Common Stock owned by Parent and its affiliates, would represent at least ninety percent (90%) The closing of the shares Non-Initiating Member’s purchase of Company Common Stock outstanding all of the Sale Projects (the “Closing”) shall be held at the principal office of Investor (or at such other location as shall be reasonably agreed upon by the Members) on a business day (the “Closing Date”) selected by the Non-Initiating Member, which Closing Date shall not be more than forty-five (45) days after the date on which the Non-Initiating Member notified the Initiating Member of the Non-Initiating Member’s election to acquire all of the Sale Projects for the Offer Closing Date, Acquisition Sub shall be deemed to have exercised the Top-Up Option on the Offer Closing Date and on such date shall give the Company written notice specifying the number of shares of Company Common Stock directly or indirectly owned by Parent and its subsidiaries at the time of such notice (giving effect to the Offer Closing). The Company shall, as soon as practicable following receipt of such notice (and in no event later than the Offer Closing Date), deliver written notice to Acquisition Sub specifying, based on the information provided by Acquisition Sub in its notice, the number of Top-Up Option SharesPrice. At the closing of the purchase of the Top-Up Option Shares (the “Top-Up Closing”), which shall take place at the location specified in Section 2.6 and, to the extent such Top-Up Closing occurs, shall take place immediately following the Offer Closing and immediately prior to the Merger Closing, the purchase price owed by Acquisition Sub to the Company therefor following shall be paid to the Company, at Acquisition Sub’s option, occur:
(i) in cash, by wire transfer of sameThe Non-day funds, or (ii) by (x) paying in cash, by wire transfer of same-day funds, Initiating Member shall deliver an amount equal to not less than the aggregate par value excess of the TopOffer Price over the Deposit then being held by the Escrow Holder, and the Non-Up Option Shares and (y) executing and delivering Initiating Member shall cause the Escrow Holder to deliver the Deposit, all by cashier’s check or in immediately available funds, to the Company a promissory note having a principal amount equal to the aggregate purchase price pursuant to the Top-Up Option less the amount paid in cash pursuant to the preceding clause (x) (the “Promissory Note”). The Promissory Note (i) shall be due on the first (1st) anniversary of the Top-Up Closing, Company.
(ii) The Non-Initiating Member shall bear simple interest receive credit toward the Offer Price for the outstanding principal balance of five percent (5%any Existing Loan assumed by the Non-Initiating Member, the Non-Initiating Member shall pay all assumption fees and other costs associated with the assumption of any Existing Loans by the Non-Initiating Member, and the Non-Initiating Member shall pay all Defeasance Costs in connection with any Existing Loans not assumed by the Non-Initiating Member; provided, however, if the Initiating Notice given under Section 11.01(a) per annumdoes not require the purchaser to assume the Existing Loans, then the Initiating Member shall pay all such Defeasance Costs.
(iii) shall be full recourse to Parent and Acquisition Sub, (iv) may be prepaid, in whole or in part, at any time without premium or penalty, and (v) shall have no other material terms. At the Top-Up Closing, the The Company shall cause convey to the Non-Initiating Member title to all of the Sale Projects by executing and, as applicable, recording usual and customary real property conveyancing documentation, subject to all matters of record, with respect to Sale Projects consisting solely of real property. The Members shall cooperate to arrange for normal and customary real property title insurance to be issued to Acquisition Sub the Non-Initiating Member at the Closing with respect to the Sale Projects consisting of real property, the cost thereof attributable to standard coverage to be paid by the Company and any cost associated with extended coverage desired by the Non-Initiating Member being paid by the Non-Initiating Member. In addition, customary Closing prorations and post Closing reconciliations shall be made as between the Company and the Non-Initiating Member and other costs of the transaction shall be allocated between the Non-Initiating Member and the Company as would be customary between a certificate representing buyer and seller of real property in the Toplocation of the Sale Projects. The Non-Up Option SharesInitiating Member shall be entitled to designate any third party to acquire title to the Sale Projects provided that such designation shall not delay any transaction described in this Article and shall not relieve the Non-Initiating Member of any duty, obligation or liability.
(iv) The Members shall cooperate with each other to structure the transfer in a tax and cost efficient manner, but only on the condition that neither Member nor the Company shall be obligated to incur any additional cost, expense or liability, or to take title to any property (except to the extent contemplated by other provisions of this Section) as a result of such cooperation, the requesting Member shall reimburse the other Member for such other Member’s reasonable costs and expenses, including without limitation, legal fees incurred in reviewing and, if necessary, revising any documentation requested by the requesting Member, and such structuring shall not delay the Closing.
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Closing and Payment. If there (a) Delivery of each Seller’s interest in such applicable Purchased Notes and Purchased Warrants shall have not been validly tendered and not validly withdrawn that number of shares of Company Common Stock which, when added be made to the shares Purchaser concurrently with the execution of Company Common Stock owned this Agreement. The Purchase Price will be satisfied by Parent and its affiliates, would represent at least ninety percent (90%i) the Purchaser’s transfer of the shares of Company Common Stock outstanding on the Offer Closing Date, Acquisition Sub shall be deemed to have exercised the Top-Up Option on the Offer Closing Date and on such date shall give the Company written notice specifying the number of shares of Company Common Stock directly or indirectly owned by Parent common stock of Tilray as set forth on Schedule III (the “Consideration Shares”) and its subsidiaries at the time of such notice (giving effect ii) a cash payment equal to the Offer Closingcash consideration set forth on Schedule III (the “Cash Consideration”) to the applicable Seller by wire transfer identified on Schedule IV in immediately available funds, as applicable, in accordance with Section 2(b) below.
(b) Payment in the form of Cash Consideration shall be made on the date hereof, or such later date as the parties shall mutually agree (such date being herein called the “Settlement Date”). The Company shallPayment in the form of Consideration Shares shall be made within five business days following the date on which Tilray’s shareholders approve (such date, the “Approval Date”) an increase in the number of authorized shares of common stock of Tilray in an amount sufficient to issue the Consideration Shares and an amount reasonably expected to be sufficient to issue the Top-Up Shares (as soon as practicable mutually agreed with the Sellers) (such date being herein called the “Consideration Shares Payment Date”); provided, however, that, if the Approval Date has not occurred by the close of NASDAQ market trading on December 1, 2021, the Sellers may, by providing written notice to the Purchaser, elect to receive an amount in cash equal to the aggregate Closing Date Share Consideration Amount in lieu of the Consideration Shares, such cash payment to be made by Purchaser to each Seller ratably in accordance with Schedule III by the applicable wire transfer identified on Schedule IV in immediately available funds on the date that is no later than the third business day following Purchaser’s receipt of such notice election from the Sellers.
(c) Tilray shall file with the United States Securities and Exchange Commission, in its sole discretion, either a prospectus supplement under Rule 424(b) to its current Registration Statement on Form S-3 (333-233703) or a new resale registration statement on Form S-3 (in either case, the “Registration Statement”) to register the resale by Sellers of the Consideration Shares and any reasonably expected Top-Up Shares (as mutually agreed with the Sellers), if any, within five business days following the Approval Date (the date on which the prospectus supplement is filed or the Registration Statement becomes effective, as applicable, the “Registration Effective Date”). In connection therewith, Tilray and the Sellers agrees to comply with their respective obligations set forth in Exhibit A attached hereto.
(d) Within three business days following the earlier of (i) the Registration Effective Date and (ii) December 1, 2021 (such earlier date, the “Measurement End Date”), in the event that the Share Price on the trading day immediately preceding the Announcement Date is greater than the Share Price on the trading day immediately preceding the Measurement End Date, provided that neither the Sellers nor any Affiliated Fund, as applicable, has Divested any Consideration Shares, the Purchaser shall deliver, or direct such delivery of, the Top-Up Shares to each Seller, ratably in accordance with Schedule III. For the avoidance of doubt, if the Consideration Shares have not been issued to the Sellers or the Affiliated Funds prior to December 1, 2021, neither the Sellers nor any Affiliated Fund will have any entitlement to Top-Up Shares and in no event later than circumstances will any cash payment be made in lieu of the Offer Closing Date), deliver written notice to Acquisition Sub specifying, based on the information provided by Acquisition Sub in its notice, the number issuance of Top-Up Option Shares. At .
(e) Following the closing Settlement Date, and in accordance with the MedMen SPA, the Note and the Warrants (including Section 3.3 of the purchase of the Top-Up Option Shares (the “Top-Up Closing”Warrants), which shall take place at the location specified in Section 2.6 and, to the extent such Top-Up Closing occurs, shall take place immediately following the Offer Closing and immediately prior to the Merger Closingthis Agreement, the purchase price owed Purchased Notes and the Purchased Warrants will be delivered by Acquisition Sub to the Company therefor shall be paid Sellers to the Company, at Acquisition Sub’s option, (i) and in cash, by wire transfer of same-day funds, or (ii) by (x) paying in cash, by wire transfer of same-day funds, an amount equal to not less than the aggregate par value accordance with Section 11.9 and Schedule 7.20 of the Top-Up Option Shares and (y) executing and delivering to MedMen SPA the Company will execute and deliver a promissory note having a principal amount equal to the aggregate purchase price pursuant to the Top-Up Option less the amount paid in cash pursuant to the preceding clause (x) (the “Promissory Note”). The Promissory Note (i) shall be due on the first (1st) anniversary or Notes of the Top-Up Closing, (ii) shall bear simple interest same type as the Purchased Notes and a Warrant or Warrants of five percent (5%) per annum, (iii) shall be full recourse the same type as the Purchased Warrants to Parent each of the Sellers and Acquisition Sub, (iv) may be prepaid, the Purchasers in whole or in part, at any time without premium or penalty, their respective names evidencing the Obligations held by each following the assignment of the Purchased Notes and (v) shall have no other material terms. At the Top-Up Closing, the Company shall cause to be issued to Acquisition Sub a certificate representing the Top-Up Option SharesPurchased Warrants hereunder.
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Closing and Payment. If there (a) Delivery of each Seller’s interest in such applicable Purchased Notes and Purchased Warrants shall have not been validly tendered and not validly withdrawn that number of shares of Company Common Stock which, when added be made to the shares Purchaser concurrently with the execution of Company Common Stock owned this Agreement. The Purchase Price will be satisfied by Parent and its affiliates, would represent at least ninety percent (90%i) the Purchaser’s transfer of the shares of Company Common Stock outstanding on the Offer Closing Date, Acquisition Sub shall be deemed to have exercised the Top-Up Option on the Offer Closing Date and on such date shall give the Company written notice specifying the number of shares of Company Common Stock directly or indirectly owned by Parent common stock of Tilray as set forth on Schedule III (the “Consideration Shares”) and its subsidiaries at the time of such notice (giving effect ii) a cash payment equal to the Offer Closingcash consideration set forth on Schedule III (the “Cash Consideration”) to the applicable Seller by wire transfer identified on Schedule IV in immediately available funds, as applicable, in accordance with Section 2(b) below.
(b) Payment in the form of Cash Consideration shall be made on the date hereof, or such later date as the parties shall mutually agree (such date being herein called the “Settlement Date”). The Company shallPayment in the form of Consideration Shares shall be made within five business days following the date on which Tilray’s shareholders approve (such date, the “Approval Date”) an increase in the number of authorized shares of common stock of Tilray in an amount sufficient to issue the Consideration Shares and an amount reasonably expected to be sufficient to issue the Top-Up Shares (as soon as practicable mutually agreed with the Sellers) (such date being herein called the “Consideration Shares Payment Date”); provided, however, that, if the Approval Date has not occurred by the close of NASDAQ market trading on December 1, 2021, the Sellers may, by providing written notice to the Purchaser, elect to receive an amount in cash equal to the aggregate Closing Date Share Consideration Amount in lieu of the Consideration Shares, such cash payment to be made by Purchaser to each Seller ratably in accordance with Schedule III by the applicable wire transfer identified on Schedule IV in immediately available funds on the date that is no later than the third business day following Purchaser’s receipt of such notice election from the Sellers.
(c) Tilray shall file with the United States Securities and Exchange Commission, in its sole discretion, either a prospectus supplement under Rule 424(b) to its current Registration Statement on Form S-3 (333-233703) or a new resale registration statement on Form S-3 (in either case, the “Registration Statement”) to register the resale by Sellers of the Consideration Shares and any reasonably expected Top-Up Shares (as mutually agreed with the Sellers), if any, within five business days following the Approval Date (the date on which the prospectus supplement is filed or the Registration Statement becomes effective, as applicable, the “Registration Effective Date”). In connection therewith, Tilray and the Sellers agrees to comply with their respective obligations set forth in Exhibit A attached hereto.
(d) Within three business days following the earlier of (i) the Registration Effective Date and (ii) December 1, 2021 (such earlier date, the “Measurement End Date”), in the event that the Share Price on the trading day immediately preceding the Announcement Date is greater than the Share Price on the trading day immediately preceding the Measurement End Date, provided that neither GGP nor any Affiliated Fund, as applicable, has Divested any Consideration Shares, the Purchaser shall deliver, or direct such delivery of, the Top-Up Shares to each Seller, ratably in accordance with Schedule III. For the avoidance of doubt, if the Consideration Shares have not been issued to GGP and the Affiliated Funds prior to December 1, 2021, neither GGP nor any Affiliated Fund will have any entitlement to Top-Up Shares and in no event later than circumstances will any cash payment be made in lieu of the Offer Closing Date), deliver written notice to Acquisition Sub specifying, based on the information provided by Acquisition Sub in its notice, the number issuance of Top-Up Option Shares. At .
(e) Following the closing Settlement Date, and in accordance with the MedMen SPA, the Note and the Warrants (including Section 3.3 of the purchase of the Top-Up Option Shares (the “Top-Up Closing”Warrants), which shall take place at the location specified in Section 2.6 and, to the extent such Top-Up Closing occurs, shall take place immediately following the Offer Closing and immediately prior to the Merger Closingthis Agreement, the purchase price owed Purchased Notes and the Purchased Warrants will be delivered by Acquisition Sub to the Company therefor shall be paid Sellers to the Company, at Acquisition Sub’s option, (i) and in cash, by wire transfer of same-day funds, or (ii) by (x) paying in cash, by wire transfer of same-day funds, an amount equal to not less than the aggregate par value accordance with Section 11.9 and Schedule 7.20 of the Top-Up Option Shares and (y) executing and delivering to MedMen SPA the Company will execute and deliver a promissory note having a principal amount equal to the aggregate purchase price pursuant to the Top-Up Option less the amount paid in cash pursuant to the preceding clause (x) (the “Promissory Note”). The Promissory Note (i) shall be due on the first (1st) anniversary or Notes of the Top-Up Closing, (ii) shall bear simple interest same type as the Purchased Notes and a Warrant or Warrants of five percent (5%) per annum, (iii) shall be full recourse the same type as the Purchased Warrants to Parent each of the Sellers and Acquisition Sub, (iv) may be prepaid, the Purchasers in whole or in part, at any time without premium or penalty, their respective names evidencing the Obligations held by each following the assignment of the Purchased Notes and (v) shall have no other material terms. At the Top-Up Closing, the Company shall cause to be issued to Acquisition Sub a certificate representing the Top-Up Option SharesPurchased Warrants hereunder.
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