United States
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form
Current Report
Pursuant to Section 13 or 15(D) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
May 5, 2023 (
(Exact Name of Registrant as Specified in its Charter)
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s telephone number, including
area code: (
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) |
Name of
each exchange on which registered | ||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act.
| Item 1.01 | Entry into a Material Definitive Agreement. |
On May 1, 2023, Gardiner Healthcare Acquisitions Corp. (the “Company”) issued five unsecured promissory notes (each, a “Promissory Note” and, collectively, the “Promissory Notes”) to Payees (as defined below), pursuant to which the Company is entitled to borrow an aggregate of $425,000 for costs, fees and expenses related to the Company’s operations, including those relating to the preparation, negotiation and consummation of an intended Business Combination (as defined below). All unpaid principal under the Promissory Notes will be due and payable in full on the earlier of (i) June 27, 2023 (or such later extension date permitted by the Amended and Restated Certificate of Incorporation, as amended, of the Company (the “Certificate of Incorporation”) in the event the stockholders of the Company approve a further amendment to the Certificate of Incorporation to extend the period to consummate a business combination) (the “Maturity Date”) and (ii) the date on which the Company consummates an initial business combination (the “Business Combination”).
The Promissory Notes entered into by the Company were issued as follows: (i) to Seisun Capital PTY LTD (“Seisun Capital”) for a principal sum of $75,000; (ii) to Guy Spriggs Trust 12/16 (“Spriggs”) for a principal sum of $200,000; (iii) to Kent Rinker (“Rinker”) for a principal sum of $50,000; (iv) to Greg Sukenik (“Sukenik”) for a principal sum of $25,000; and (v) to Virginia Stack (“Stack” and, together with Seisun Capital, Spriggs, and Rinker, each a “Payee” and, collectively, the “Payees”) for a principal sum of $75,000.
A copy of the form of Promissory Note is filed with this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein by reference, and the foregoing description of the Convertible Note is qualified in its entirety by reference thereto.
Sponsor Support Agreement
In connection with entering into the Promissory Notes, on May 1, 2023, the Payees (with the exception of Stack), and Gardiner Healthcare Holdings, LLC, a Delaware limited liability company (“Gardiner Sponsor”), entered into a Sponsor Support Agreement (the “Sponsor Support Agreement”), pursuant to which, among other things, Gardiner Sponsor agreed to assign and transfer to the Payees a certain number of shares of Common Stock owned by Gardiner Sponsor in accordance with the terms of such Sponsor Support Agreement, as an inducement for the Payees to make the loans contemplated by the Promissory Notes.
A copy of the Sponsor Support Agreement is filed with this Current Report on Form 8-K as Exhibit 10.2 and is incorporated herein by reference, and the foregoing description of the Sponsor Support Agreement is qualified in its entirety by reference thereto.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information set forth above in Item 1.01 of this Current Report on Form 8-K is incorporated by reference herein.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits:
| Exhibit | Description | |
| 10.1 | Form of Promissory Note. | |
| 10.2† | Sponsor Support Agreement, dated as of May 1, 2023. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). | |
† Certain confidential information (indicated by brackets and asterisks) has been omitted from this exhibit because it is both (i) not material and (ii) the type of information that the registrant treats as private or confidential.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Gardiner Healthcare Acquisitions Corp. | |||
| Date: May 5, 2023 | By: | /s/ Marc F. Pelletier | |
| Name: | Marc F. Pelletier | ||
| Title: | Chief Executive Officer | ||
Exhibit 10.1
THE OFFER AND SALE OF THIS PROMISSORY NOTE (THIS “NOTE”) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF THE RESALE THEREOF UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE MAKER THAT SUCH REGISTRATION IS NOT REQUIRED.
PROMISSORY NOTE
| Principal Amount: $[ ] | Dated as of May 1, 2023 |
| Shaker Heights, Ohio |
Gardiner Healthcare Acquisitions Corp., a Delaware corporation and blank check company (the “Maker”), promises to pay to the order of [ ] or its registered assigns or successors in interest (together, the “Payee”), the principal sum of [ ] U.S. Dollars (the “Maximum Amount”) in lawful money of the United States of America, on the terms and conditions described below. All payments on this Note shall be made by check or wire transfer of immediately available funds to such account as Payee may from time to time designate by Notice (as defined in Section 10) to Maker in accordance with the provisions of this Note.
1. Principal. The principal balance of this Note shall be payable by Maker on the earlier of: (i) June 27, 2023 (or such later extension date permitted by the Amended and Restated Certificate of Incorporation, as amended, of the Maker (the “Certificate of Incorporation”) in the event the stockholders of the Maker approve a further amendment to the Certificate of Incorporation to extend the period to consummate a business combination) (the “Maturity Date”) or (ii) the date on which the Maker consummates an initial business combination (the “Business Combination”). The principal balance may be prepaid at any time. Under no circumstances shall any individual, including but not limited to any officer, director, employee or shareholder of Maker, be obligated personally for any obligations or liabilities of Maker hereunder.
2. Interest. No interest shall accrue on the unpaid principal balance of this Note.
3. [intentionally omitted]
4. Application of Payments. All payments shall be applied, first, to payment in full of any costs incurred in the collection of any sum due under this Note, including (without limitation) reasonable attorney’s fees, second, to the payment in full of any late charges, and third, to the reduction of the unpaid principal balance of this Note.
5. [intentionally omitted]
6. Events of Default. The following events shall constitute an event of default (“Event of Default”):
6.1 Failure to Make Required Payments. The failure by Maker to pay the principal amount due pursuant to this Note within five business days of the Maturity Date.
6.2 Voluntary Bankruptcy, Etc. The: (a) commencement by Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation or other similar law; (b) consent by Maker to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of Maker for any substantial part of its property, (c) making by Maker of any assignment for the benefit of creditors; (d) the failure of Maker generally to pay its debts as such debts become due; or (e) taking of any corporate action by Maker in furtherance of any of the foregoing events described in Section 6.2(a) – Section 6.2(d).
6.3 Involuntary Bankruptcy, Etc. The: (a)(i) entry of a decree or order for relief by a court having jurisdiction in the premises in respect of Maker in an involuntary case under any applicable bankruptcy, insolvency or other similar law, (ii) appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Maker or for any substantial part of its property, or (iii) the ordering of the winding-up or liquidation of Maker’s affairs; and (b) continuance of any such decree, appointment, or order unstayed and in effect for a period of 60 consecutive days.
7. Remedies.
7.1 Upon the occurrence of an Event of Default specified in Section 6.1, Payee may, by Notice to Maker, declare this Note to be due immediately and payable by Maker, whereupon the unpaid principal amount of this Note, and all other amounts payable hereunder, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, notwithstanding anything contained herein or in the documents evidencing the same to the contrary.
7.2 Upon the occurrence of an Event of Default specified in Section 6.2 and Section 6.3, the unpaid principal balance of this Note, and all other sums payable with regard to this Note, shall automatically and immediately become due and payable by Maker, in all cases without any action on the part of Payee.
8. Waivers. Maker and all endorsers and guarantors of, and sureties for, this Note waive: (a) presentment for payment, demand, notice of dishonor, protest, and notice of protest with regard to the Note; (b) all errors, defects and imperfections in any proceedings instituted by Payee under the terms of this Note; and (c) all benefits that might accrue to Maker by virtue of any present or future laws (i) exempting any property, real or personal, or any part of the proceeds arising from any sale of any such real or personal property, from attachment, levy or sale under execution, or (ii) providing for any stay of execution, exemption from civil process, or extension of time for payment. Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof or any writ of execution issued hereon, may be sold upon any such writ in whole or in part in any order desired by Payee.
9. Unconditional Liability. Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and agrees that Maker’s liability shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee. Maker consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by Payee with respect to the payment or other provisions of this Note. Maker agrees that additional makers, endorsers, guarantors, or sureties may become parties hereto without either any Notice to Maker or any bearing on Maker’s liability hereunder.
10. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section 10). A Notice shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail (in each case, return receipt requested, postage pre-paid).
11. Construction. THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
12. Severability. Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
13. Trust Waiver. Notwithstanding anything herein to the contrary, Payee hereby waives any and all right, title, interest or claim of any kind (each, a “Claim”) in or to any distribution of or from the trust account (the “Trust Account”), in which the proceeds of both the (a) initial public offering of the Maker (the “IPO”) (including the deferred underwriters discounts and commissions) and (b) sale of the warrants issued in a private placement to occur at the closing of the IPO were deposited, as described in greater detail in the Registration Statement on Form S-1 and prospectus filed with the Securities and Exchange Commission in connection with the IPO. Payee hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever.
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14. Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of both Maker and Payee.
15. Assignment. No assignment or transfer of this Note or any rights or obligations hereunder may be made by any party hereto (by operation of law or otherwise) without the prior written consent of the other party hereto. Any attempted assignment without the required consent shall be void.
[Signature page follows]
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IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first above written.
| Gardiner Healthcare Acquisitions Corp. | ||
| By: | ||
| Name: Marc F. Pelletier | ||
| Title: Chairman and Chief Executive Officer | ||
[Signature Page to Promissory Note]
Exhibit 10.2
Certain identified information marked with “[***]” has been omitted from this document because it is both (i) not material and (ii) the type that the registrant treats as private or confidential.
GARDINER HEALTHCARE HOLDINGS, LLC
SPONSOR SUPPORT AGREEMENT
This Sponsor Support Agreement (this “Sponsor Agreement”) is dated as of May 1, 2023 by and among Gardiner Healthcare Holdings, LLC, a Delaware limited liability company (“Gardiner Sponsor”), one the one-hand, and each of the persons set forth on Schedule I hereto (each, a “Lender” and, together, the “Lenders”), on the other hand.
RECITALS
WHEREAS, as of the date hereof, Gardiner Sponsor is the holder of record and the “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of such number of shares of the common stock (the “Common Stock”) of Gardiner Healthcare Acquisitions Corp., a Delaware corporation (the “Company”), as are indicated opposite its names on Schedule I attached hereto; and
WHEREAS, the registration statement on Form S-1 in relation to the Company’s initial public offering provides that in order to meet the Company’s working capital needs, its initial stockholders, officers and directors and their respective affiliates may, but are not obligated to, loan the Company funds, from time to time, pursuant to a promissory note to be paid upon consummation of the Company’s initial business combination (“Business Combination”), without interest; and
WHEREAS, prior to or contemporaneously with the execution and delivery of this Sponsor Agreement each of the Lenders has entered into a convertible promissory note, dated as of the date hereof, substantially in the form attached hereto as Exhibit A (each, a “Promissory Note”) pursuant to which, the Lenders have agreed to loan to the Company of the Gardiner Sponsor, as applicable, up to the respective amounts set forth on Schedule I; and
WHEREAS, in addition to the loans reflected on Schedule I, the Gardiner Sponsor would like to facilitate additional loans from the Lenders and/or other initial stockholders, officers and directors of the Company and their respective affiliates, in an aggregate potential loan amount, including those loans reflected on Schedule on May 1, 2023, of up to Three Million Dollars ($3,000,000) (each, a “Loan” and, collectively, the “Loans”) and to unilaterally amend Schedule I accordingly in relation to such additional Loans; and
WHEREAS, as an inducement to the Lenders to make the Loans, the parties hereto desire to agree to certain matters as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
SPONSOR SUPPORT AGREEMENT; COVENANTS
Section 1.1. Binding Effect. The Gardiner Sponsor and each Lender hereby acknowledges that it has read this Agreement, the Promissory Note and has had the opportunity to consult with its tax and legal advisors. Each Lender shall be bound by the Promissory Note and make the Loans contemplated thereby to the extent so requested by the Company.
Section 1.2. Transfer Restrictions.
(a) Each of the Gardiner Sponsor and the Lenders acknowledges and agrees that the Gardiner Sponsor is subject to the terms and conditions of (i) the Stock Escrow Agreement, dated as of December 21, 2021, by and between the Company and each of the initial stockholders thereto, including (amongst others) the Gardiner Sponsor (the “Escrow Agreement”), and (ii) a Letter Agreement, dated December 21, 2021, by and among the Company and each of the sponsors to the Company, including the Gardiner Sponsor (the “Insider Letter Agreement”) and that each of the Escrow Agreement and the Insider Letter Agreement contains limitations on transfer. The parties hereto represent, warrant and covenants that each of the Lenders is a permitted transferee in accordance with Section 4.3 of the Escrow Agreement and Section 5 of the Insider Letter Agreement. Each of the Lenders represents and warrants that it is not subject to any further limitations on transfer, except those set forth in the Escrow Agreement, the Insider Letter Agreement and applicable law.
(b) During the period commencing on the date hereof and ending on the expiration or termination of the Promissory Note (the “Expiration Time”), each Sponsor shall not (x) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, file (or participate in the filing of) a registration statement with the SEC (other than (i) participation in the preparation of a proxy statement or registration statement relating to the Company’s initial business combination, and/or (ii) participation in the preparation of a registration statement and/or sponsor support agreement relating to a private investment in public equity offering in conjunction with the Company’s initial business combination (the “PIPE”)) or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, with respect to any shares of Common Stock owned by Gardiner Sponsor, in each case that would be effective prior to the Expiration Time, (y) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any shares of Common Stock owned by Gardiner Sponsor, in each case that would be effective prior to the Expiration Time (clauses (x) and (y) collectively, a “Transfer”) or (z) publicly announce any intention to effect any transaction specified in clause (x) or (y); provided, however, that the foregoing shall not prohibit Transfers to the extent permitted under the Escrow Agreement, so long as, prior to and as a condition to the effectiveness of any such Transfer, any transferee executes and delivers a joinder to this Support Agreement in a form meeting the requirements of the Escrow Agreement and satisfactory to Gardiner Sponsor (in addition to such transfer requirements as set forth in the Escrow Agreement).
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(c) The parties acknowledge that any shares transferred hereunder shall be legended in substantially the following form to reflect that such shares are subject to restrictions pursuant to this Sponsor Agreement:
“THE SECURITIES EVIDENCED HEREIN ARE SUBJECT TO RESTRICTIONS ON TRANSFER, AND CERTAIN OTHER AGREEMENTS, SET FORTH IN THE SPONSOR SUPPORT AGREEMENT, DATED AS OF MAY 1, 2023, BY AND AMONG GARDINER HEALTHCARE HOLDINGS, LLC, AND EACH OF THE PERSONS SET FORTH ON SCHEDULE I THERETO.
Section 1.3. Additional Sponsor Agreement re: Transfer of Shares.
(a) Subject to the terms and conditions of this Agreement, in conjunction with, and subject to, the closing of the Business Combination, the Gardiner Sponsor hereby agree to collectively assign and transfer to each Lender a number of shares of Common Stock owned by the Gardiner Sponsor (the “Sponsor Common Stock”) equal to 9.984 shares of Sponsor Common Stock for each One Hundred Dollars in principal loaned by such Lender pursuant to its applicable Promissory Note; provided, however, such number of shares of Sponsor Common Stock shall be rounded down to the next whole number of shares. In furtherance of the foregoing, no fractional shares of Sponsor Common Stock shall be transferred hereunder.
For example, a person that lends the Company One Hundred Thousand dollars ($100,000) pursuant to a Promissory Note shall be entitled to receive Nine Thousand Nine Hundred Eighty-Four (9,984) shares of Sponsor Common Stock upon closing of the Business Combination, as follows:
X = ($100,000/$100) x 9.984,
Where X is the number of shares of Sponsor Common Stock to be received.
(b) Each of the Lenders hereby expressly acknowledges that the Company is currently in discussions with a potential Business Combination target and that the discussions (which are not binding) currently contemplate that a portion of the Sponsor Common Stock held by each Sponsor (currently proposed to be up to 25%) shall be subject to forfeiture in the event that the Company (or its successor) does not meet certain performance milestones following the closing of the Business Combination. Each of the Lenders further acknowledges that the terms and conditions associated with the Sponsor Common Stock, including without limitation forfeitures, lock-ups, other restrictions, limitations and/or conditions, are subject to negotiations between and among the Company, business combination target entities and affiliates, and the sponsors to the Company, including the Gardiner Sponsor, and may result in conditions and/or limitations that differ from the proposal described in the foregoing sentence. IN FURTHERANCE OF THE FOREGOING, EACH LENDER HEREBY AGREES THAT ALL SHARES OF SPONSOR COMMON STOCK RECEIVED BY THE LENDER IN ACCORDANCE WITH THIS AGREEMENT SHALL BE SUBJECT TO ALL RESTRICTIONS, LIMITATIONS AND/OR CONDITIONS CURRENTLY IN EFFECT AND HEREAFTER AGREED UPON BY THE SPONSORS; PROVIDED, HOWEVER, ALL SUCH RESTRICTIONS, LIMITATIONS AND/OR CONDITIONS THAT APPLY TO THE SHARES OF SPONSOR COMMON STOCK ASSIGNED TO THE LENDERS HEREUNDER SHALL BE PARI PASSU WITH THE RESTRICTIONS, LIMITATIONS AND/OR CONDITIONS RETAINED BY GARDINER SPONSOR. EACH LENDER ACKNOWLEDGES AND AGREES THAT IT SHALL HAVE NO RIGHTS TO VOTE THE SPONSOR COMMON STOCK UNTIL CONVEYED IN ACCORDANCE WITH THIS AGREEMENT. FURTHERMORE, EACH LENDER ACKNOWLEDGES AND AGREES THAT IT SHALL HAVE NO RIGHTS WHATSOEVER TO NEGOTIATE THE TERMS AND CONDITIONS OF THE BUSINESS COMBINATION AND SHALL HAVE NO RIGHTS TO NEGOTIATE THE TERMS AND CONDITIONS, INCLUDING RESTRICTIONS, LIMITATIONS AND/OR CONDITIONS, PERTAINING TO THE SPONSOR COMMON STOCK.
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(c) On or about the closing of the Business Combination, the Gardiner Sponsor shall execute appropriate transfer documentation with each Lender providing for the transfer to such Lender of the applicable number of shares of Sponsor Common Stock.
(d) [intentionally omitted]
Section 1.4. New Shares. In the event that any shares of Common Stock or other equity securities of Company (or its successor) are issued to Gardiner Sponsor after the date of this Sponsor Agreement pursuant to any stock dividend, stock split, recapitalization, reclassification, combination or exchange of shares of Common Stock of, on or affecting the shares of Common Stock owned by Gardiner Sponsor or otherwise (such shares of Common Stock or other equity securities, collectively the “New Securities”), then such New Securities acquired by Gardiner Sponsor shall be subject to the terms of this Sponsor Agreement to the same extent as if they constituted the shares of Common Stock owned by Gardiner Sponsor as of the date hereof.
Section 1.5. Joinder to Escrow Agreement. To the extent applicable, each Lender, on behalf of itself, agrees that it will deliver, substantially simultaneously with the Business Combination, with respect to its allocation of Sponsor Common Stock, a duly-executed joinder to the Escrow Agreement (or similar agreement) substantially in the form to be agreed upon by and between the parties to the Escrow Agreement.
Section 1.6. Joinder to Insider Letter Agreement. To the extent applicable, each Lender, on behalf of itself, agrees that it will deliver, substantially simultaneously with the closing of the Business Combination, with respect to its allocation of the Sponsor Common Stock, a duly executed joinder to the Insider Letter Agreement (or similar agreement) substantially in the form to be agreed upon by and between the parties to the Insider Letter Agreement.
Section 1.7. Registration Rights Agreement. Each Lender, on behalf of itself, agrees that it will deliver, substantially simultaneously with the closing of the Business Combination, with respect to its allocation of the Sponsor Common Stock, a duly-executed copy of any applicable registration rights agreement(s).
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Section 1.8. Lock-Up Agreement. Each Lender, on behalf of itself, agrees that it will deliver, substantially simultaneously with the closing of the Business Combination, with respect to its allocation of Sponsor Common Stock, a duly-executed copy of any lock-up or similar agreement in the form to be agreed upon by and between the Company (or its successor) and the investors in the PIPE Closing.
Section 1.9. Lender Support Agreements. To the extent requested by the Gardiner Sponsor, each Lender, on behalf of itself, agrees that it will deliver, substantially simultaneously with the closing of the Business Combination, with respect to its allocation of Sponsor Common Stock, a duly-executed copy of any lender support or similar agreement in the form determined by the Gardiner Sponsor, which may provide that the Lender shall, at any meeting of the stockholders of the Company (or its successor), however called, or at any adjournment thereof, or in any other circumstance in which the vote, consent or other approval of the stockholders of the Company (or its successor) is sought, unconditionally and irrevocably agree that such Lender shall (i) appear at each such meeting or otherwise cause all of its shares of the Sponsor Common Stock (or other security in the Company’s successor) to be counted as present thereat (to the extent entitled to vote thereto) for purposes of calculating a quorum and (ii) vote (or cause to be voted), or execute and deliver a written consent (or cause a written consent to be executed and delivered) covering, all of its shares of Common Stock (to the extent entitled to vote thereto) in favor of those proposals of the Company (or successor) for which the Board of Directors of the Company (or its successor) suggests stockholder approval. Each Lender hereby agrees that it shall not commit or agree to take any action inconsistent with the foregoing. Notwithstanding the foregoing, such obligation shall expire or terminate at the end of the later of any applicable lockup period and any forfeiture milestone period as contemplated by Section 1.3(b) above.
Section 1.10. Further Assurances. Gardiner Sponsor and each Lender shall take, or cause to be taken, all such further actions and do, or cause to be done, all things reasonably necessary (including under applicable Laws and those agreements entered in to in relation to the Business Combination) to effect the actions required to consummate the transactions contemplated by this Sponsor Agreement and Notes, in each case, on the terms and subject to the conditions set forth therein and herein, as applicable.
Section 1.11. No Inconsistent Agreement. Gardiner Sponsor hereby represents and covenants that it has not entered into, and shall not enter into, any agreement that would restrict, limit or interfere with the performance of Gardiner Sponsor’s obligations hereunder.
Section 1.12. No Challenges. Gardiner Sponsor agrees not to voluntarily commence, join in, facilitate, assist or encourage, and agrees to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against the Company (or its successor) or any of its respective successors, directors, officers or affiliates, (a) challenging the validity of, or seeking to enjoin the operation of, any provision of this Sponsor Agreement, the Promissory Notes, the Escrow Agreement, the Insider Letter Agreement, or any of the documentation relating to the Business Combination, or (b) alleging a breach of any fiduciary duty of any Person in connection with the evaluation, negotiation or entry into any of the foregoing. Notwithstanding the foregoing, nothing herein shall be deemed to prohibit Gardiner Sponsor from enforcing Gardiner Sponsor’s rights under this Sponsor Agreement and the other agreements entered into by Gardiner Sponsor in connection herewith.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Gardiner Sponsor. Gardiner Sponsor represents and warrants as of the date hereof to each Lender (solely with respect to itself, himself or herself and not with respect to any other sponsor) as follows:
(a) Organization; Due Authorization. Gardiner Sponsor is duly organized, validly existing and in good standing under the Laws of the jurisdiction in which it is incorporated, formed, organized or constituted, and the execution, delivery and performance of this Sponsor Agreement and the consummation of the transactions contemplated hereby are within Gardiner Sponsor’s corporate, limited liability company or organizational powers and have been duly authorized by all necessary corporate, limited liability company or organizational actions on the part of Gardiner Sponsor. This Sponsor Agreement has been duly executed and delivered by Gardiner Sponsor and, assuming due authorization, execution and delivery by the other parties to this Sponsor Agreement, this Sponsor Agreement constitutes a legally valid and binding obligation of Gardiner Sponsor, enforceable against Gardiner Sponsor in accordance with the terms hereof (except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies). If this Sponsor Agreement is being executed in a representative or fiduciary capacity, the person signing this Sponsor Agreement has full power and authority to enter into this Sponsor Agreement on behalf of the Gardiner Sponsor.
(b) Ownership. Gardiner Sponsor is the beneficial owner (as defined in the Securities Act) of, and has good title to, all of Gardiner Sponsor’s shares of Sponsor Common Stock, and there exist no liens or any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such shares of Sponsor Common Stock) affecting any such shares of Sponsor Common Stock, other than liens, limitations or restrictions (a) pursuant to (i) this Sponsor Agreement and a similar sponsor agreement entered into by Gardiner Sponsor, the Companies other sponsors and several lenders, (ii) the governing documents of the Company, (iii) the Escrow Agreement, (iv) the Insider Letter Agreement, or (v) any applicable securities Laws or (b) that would not, individually or in the aggregate, reasonably be expected to prevent, delay or impair the ability of Gardiner Sponsor to perform its obligations under this Sponsor Agreement or the consummation of the transactions contemplated by this Sponsor Agreement or the Notes. None of Gardiner Sponsor’s shares of Common Stock are subject to any proxy, voting trust or other agreement or arrangement with respect to the voting of such shares of Common Stock, except as provided hereunder and under the applicable insider letter as descried in Section 4.4 of the Escrow Agreement.
(c) No Conflicts. The execution and delivery of this Sponsor Agreement by Gardiner Sponsor does not, and the performance by Gardiner Sponsor of its obligations hereunder will not, (i) conflict with or result in a violation of the organizational documents of Gardiner Sponsor or (ii) require any consent or approval that has not been given or other action that has not been taken by any Person (including under any contract binding upon Gardiner Sponsor or Gardiner Sponsor’s shares of Common Stock), in each case, to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance by Gardiner Sponsor of its obligations under this Sponsor Agreement.
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(d) Litigation. There are no Actions pending against Gardiner Sponsor, or to the knowledge of Gardiner Sponsor threatened against Gardiner Sponsor, before (or, in the case of threatened Actions, that would be before) any arbitrator or any Governmental Authority, which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by Gardiner Sponsor of its, his or her obligations under this Sponsor Agreement.
(e) Brokerage Fees. No broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by Loans.
(f) Acknowledgment. Gardiner Sponsor understands and acknowledges that each Lender entering into the Loans in reliance upon Gardiner Sponsor’s execution and delivery of this Sponsor Agreement.
ARTICLE III
MISCELLANEOUS
Section 3.1. Termination. Unless earlier terminated by the written agreement of the parties hereto, this Sponsor Agreement and all of its provisions shall terminate and be of no further force or effect upon the later of (a) the termination of each of the Notes, and (b) the PIPE Closing. Upon such termination of this Sponsor Agreement, all obligations of the parties under this Sponsor Agreement will terminate, without any liability or other obligation on the part of any party hereto to any Person in respect hereof or the transactions contemplated hereby, and no party hereto shall have any claim against another (and no Person shall have any rights against such party), whether under contract, tort or otherwise, with respect to the subject matter hereof; provided, however, that the termination of this Sponsor Agreement shall not relieve any party hereto from liability arising in respect of any breach of this Sponsor Agreement prior to such termination. This ARTICLE III shall survive the termination of this Support Agreement.
Section 3.2. Governing Law. This Sponsor Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Sponsor Agreement or the negotiation, execution or performance of this Sponsor Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Sponsor Agreement) will be governed by and construed in accordance with the internal Laws of the State of Delaware applicable to agreements executed and performed entirely within such State.
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Section 3.3. CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY TRIAL.
(a) ANY PROCEEDING OR ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS SPONSOR AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MUST BE BROUGHT IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE (OR, ONLY TO THE EXTENT SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, THE SUPERIOR COURT OF THE STATE OF DELAWARE OR, IF IT HAS OR CAN ACQUIRE JURISDICTION, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE), AND EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY (I) CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF EACH SUCH COURT IN ANY SUCH PROCEEDING OR ACTION, (II) WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO PERSONAL JURISDICTION, VENUE OR TO CONVENIENCE OF FORUM, (III) AGREES THAT ALL CLAIMS IN RESPECT OF SUCH PROCEEDING OR ACTION SHALL BE HEARD AND DETERMINED ONLY IN ANY SUCH COURT AND (IV) AGREES NOT TO BRING ANY PROCEEDING OR ACTION ARISING OUT OF OR RELATING TO THIS SUPPORT AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY OTHER COURT. SERVICE OF PROCESS WITH RESPECT THERETO MAY BE MADE UPON ANY PARTY TO THIS SPONSOR AGREEMENT BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS AS PROVIDED IN SECTION 3.8, WITHOUT LIMITING THE RIGHT OF A PARTY TO SERVE PROCESS IN ANY OTHER MATTER PERMITTED BY APPLICABLE LAWS.
(b) WAIVER OF TRIAL BY JURY. EACH PARTY HERETO HEREBY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS SPONSOR AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SPONSOR AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS SPONSOR AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS SPONSOR AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 3.3.
Section 3.4. Assignment. This Sponsor Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. Neither this Sponsor Agreement nor any of the rights, interests or obligations hereunder will be assigned (including by operation of law) without the prior written consent of each of the parties hereto.
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Section 3.5. Specific Performance. The parties hereto agree that irreparable damage may occur in the event that any of the provisions of this Sponsor Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Sponsor Agreement and to enforce specifically the terms and provisions of this Sponsor Agreement, this being in addition to any other remedy to which such party is entitled at law or in equity. In the event that any Action shall be brought in equity to enforce the provisions of this Sponsor Agreement, no party hereto shall allege, and each party hereto hereby waives the defense, that there is an adequate remedy at law, and each party hereto agrees to waive any requirement for the securing or posting of any bond in connection therewith.
Section 3.6. Amendment. This Sponsor Agreement may not be amended, changed, supplemented, waived or otherwise modified, except upon the execution and delivery of a written agreement executed by each of the Gardiner Sponsor and Lenders; provided that, however, Gardiner Sponsor may unilaterally amend Schedule I hereto in order to update for additional lenders who may enter into new Loans for an aggregate amount of up to Three Million dollars $3,000,000.
Section 3.7. Severability. If any provision of this Sponsor Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Sponsor Agreement will remain in full force and effect. Any provision of this Sponsor Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
Section 3.8. Notices. All notices and other communications among the parties hereto shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (c) when delivered by FedEx or other nationally recognized overnight delivery service or (d) when e-mailed during normal business hours of the recipient (and otherwise as of the immediately following Business Day), addressed as follows:
If to the Gardiner Sponsor:
Contact: Marc F. Pelletier, 3107 Warrington Rd, Shaker Heights, OH 44120
If to a Lender:
To the address set forth opposite such Lenders name in Schedule I hereto.
Section 3.9. Counterparts. This Sponsor Agreement may be executed in two or more counterparts (any of which may be delivered by electronic transmission), each of which shall constitute an original, and all of which taken together shall constitute one and the same instrument.
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Section 3.10. Entire Agreement. This Sponsor Agreement and the agreements referenced herein constitute the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersede all prior understandings, agreements or representations by or among the parties hereto to the extent they relate in any way to the subject matter hereof.
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IN WITNESS WHEREOF, the Gardiner Sponsor and the Lenders have each caused this Sponsor Agreement to be duly executed as of the date first written above.
| GARDINER HEALTHCARE HOLDINGS, LLC | ||
| By: Gardiner Founder, LLC, | ||
| its Managing Member | ||
| By: | /s/ Marc. F. Pelletier | |
| Name: Marc F. Pelletier | ||
| Title: Manager | ||
(Signature Page to Sponsor Support Agreement)
| Seisun Capital PTY LTD | ||
| By: | /s/ Chris Camarsh | |
| Name: Chris Camarsh | ||
| Title: CIO | ||
(Signature Page to Sponsor Support Agreement)
| /s/ Guy Spriggs | |
| Mr. Guy Spriggs for | |
| Guy Spriggs Trust 12/16 |
(Signature Page to Sponsor Support Agreement)
| Ms. Virginia Stack |
(Signature Page to Sponsor Support Agreement)
| /s/ Kent Rinker | |
| Mr. Kent Rinker |
(Signature Page to Sponsor Support Agreement)
| /s/ Greg Sukenik | |
| Mr. Greg Sukenik |
(Signature Page to Sponsor Support Agreement)
SCHEDULE I
SPONSORS
| Sponsor | Shares of Common Stock Held | |||
| Gardiner Healthcare Holdings, LLC | 1,336,563 | |||
LENDERS
| Lender | Address | Loan Amount by Loan | |||||
| Seisun Capital PTY LTD | [***] | $ | 75,000 | ||||
| Guy Spriggs Trust 12/16 | [***] | $ | 200,000 | ||||
| Virginia Stack | [***] | $ | 75,000 | ||||
| Kent Rinker | [***] | $ | 50,000 | ||||
| Greg Sukenik | [***] | $ | 25,000 | ||||
EXHIBIT A
Promissory Note
See attached.
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