Exhibit 10.1
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.
TERMINATION OF
SPONSOR SUPPORT AGREEMENTS
THIS TERMINATION OF SPONSOR SUPPORT AGREEMENTS (this “Termination”) is dated as of June 29, 2023 (the “Effective Date”) by and among Gardiner Healthcare Holdings, LLC, a Delaware limited liability company (“Gardiner Sponsor”), Chardan Gardiner LLC, a Delaware limited liability company (“Chardan Sponsor”), and CCMAUS Pty Ltd., an Australian company (“CCMAUS” and together with the Gardiner Sponsor and Chardan Sponsor, each, a “Sponsor” and, together, the “Sponsors”), one the one-hand, and each of the persons set forth on Schedule A hereto (each, a “Lender” and, together, the “Lenders”), on the other hand. The Sponsors and Lenders are herein referred to as the “Parties” and each a “Party”.
RECITALS
WHEREAS, certain of the Parties are party to various Sponsor Support Agreements (collectively, the “Sponsor Support Agreements”), including without limitation, (i) the Sponsor Support Agreement by and among Gardiner Sponsor and various lenders, dated as of May 1, 2023; (ii) the Sponsor Support Agreement by and among Sponsors and various lenders, dated March 31, 2023; and (iii) the Sponsor Support Agreement by and among Sponsors and various lenders, dated February 6, 2023, but, excluding, for purposes of clarification, the letter agreement, dated December 21, 2021, by and among Gardiner Healthcare Acquisitions Corp., Gardiner Sponsor, Chardan Sponsor, and CCMAUS;
WHEREAS, prior to or contemporaneously with the execution and delivery of each of the Sponsor Support Agreements, each of the Lenders identified on Schedule A entered into a convertible promissory note, (the “Promissory Notes”) to which the Lenders agreed to loan up to the respective amounts set forth on Schedule A; and
WHEREAS, Gardiner Founder LLC, a Delaware limited liability company (“Founder”), which is the parent of Gardiner Sponsor, intends to enter into a Class A Unit Purchase Agreement, dated on or about the Effective Date, with each of the Lenders (each in such capacity, a “Purchaser” and, collectively, the “Purchasers”) and the other parties thereto (the “Purchase Agreement”) pursuant to which the Founder will sell and transfer to the Purchasers membership units of Founder; and
WHEREAS, pursuant to the Cancellation and Release Agreements, the Parties agreed that as of the effective date of the Cancellation and Release Agreements, the sum of the aggregate outstanding principal, any accrued interest, and any other fees due to the Lender and all other payment obligations and liabilities under the Promissory Note(s) shall be cancelled in full without any payment to the Lender and the Promissory Note(s) shall be automatically terminated and of no further force and effect;
WHEREAS, relation to the Purchase Agreement and the contemporaneous amendment and restatement of the Founder’s limited liability operating agreement the Parties are required to cause this Termination to be executed and delivered;
NOW, THEREFORE, in consideration of the premises set out above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
| 1. | Termination of Sponsor Support Agreements. As of the Effective Date, the Sponsor Support Agreements are hereby terminated without further action by any of the Parties, including any and all rights and obligations thereunder, including without limitation, any right of the Lenders to receive shares of common stock of the SPAC (as defined below), owned by the Sponsors, and from and after the Effective Date shall have no further force or effect; provided, however, that the provisions of the Sponsor Support Agreements which expressly survive termination in accordance with Section 3.1 of the Sponsor Support Agreements shall survive the termination in accordance with their respective terms. |
| 2. | Mutual Release. As of the Effective Date, each Party, on behalf of itself and each of its Related Parties, does hereby unconditionally and irrevocably release, waive and forever discharge the other Parties and each of its Related Parties (collectively, the “Released Parties”), of and from any and all claims, actions, causes of action, suits, debts, liens, contracts, agreements, promises, commitments, demands, charges, damages, awards, assessments, losses, costs, expenses (including attorneys’ fees and costs), and other liabilities and obligations that such Party or any of its Related Parties may now or henceforth have against the Released Parties, of any nature or kind, known or unknown, suspected or unsuspected, from whatever cause, action, omission, or other matter or circumstance, from the beginning of time to and through the Effective Date, solely to the extent arising out of or relating to the Sponsor Support Agreements. A Party’s “Related Parties” means such Party’s past, present and future parents, subsidiaries, affiliates, employees, officers, directors, shareholders, members, agents, representatives, successors, and assigns. |
| 3. | Waiver. Each Party acknowledges that the applicable laws of many states provide substantially the following: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” Each Party acknowledges that such provisions are designed to protect a party from waiving claims which it does not know exist or may exist. Nonetheless, each Party agrees that, as of the Effective Date, such Party shall be deemed to waive any such provision. |
| 4. | Administrative Claims; Litigation. Each Party (a) expressly represents, warrants and covenants not to sue the Released Parties to enforce any charge, claim or cause of action released pursuant to this Agreement, (b) participate, assist, or cooperate in any such proceeding, or (c) encourage, assist and/or solicit any third party to institute any such proceeding. This covenant not to bring or maintain any action in law or equity shall be subject to specific enforcement and the Released Parties, or any of them, shall have standing to bring any such action for specific enforcement. This covenant does not apply to any suits or other proceedings to enforce the provisions of this Termination. In any suit to enforce this Termination, the prevailing party shall be entitled to reasonable attorneys’ fees and costs. |
| 5. | COUNSEL. |
| (a) | EACH PARTY HAS CAREFULLY READ AND FULLY UNDERSTANDS ALL OF THE PROVISIONS AND EFFECT OF THIS TERMINATION. EACH PARTY HAS FULL AUTHORITY TO ENTER INTO THIS TERMINATION AND TO BE BOUND BY IT. EACH PARTY IS VOLUNTARILY ENTERING INTO THIS TERMINATION FREE OF ANY DURESS OR COERCION. EACH PARTY HAS HAD THE OPPORTUNITY TO CONSULT LEGAL COUNSEL OF SUCH PARTY’S OWN CHOOSING WITH RESPECT TO THE EXECUTION AND LEGAL EFFECT OF THIS TERMINATION. |
| (b) | Gardiner Healthcare Acquisitions Corp. (the “SPAC”) has selected Reed Smith LLP (“SPAC Counsel”) as its legal counsel and has requested the assistance of SPAC Counsel in relation to the preparation of this Termination and ancillary documents for the purpose of facilitating the recapitalization of the SPAC. The Parties acknowledge and agree that SPAC Counsel does not represent any of the Parties, except SPAC, with respect to this Termination or the recapitalization of the SPAC in the absence of a clear and explicit agreement to such effect between a Party, as the case may be, and SPAC Counsel (and then only to the extent specifically set forth in that agreement), and that, in the absence of any such agreement, SPAC Counsel, to the fullest extent permitted by applicable law, shall owe no duties to any Party (except SPAC) with respect to this Termination, any ancillary documents, or the subject matter hereof and thereof. In furtherance of the foregoing, each Party hereby acknowledges and agrees that SPAC Counsel has helped prepare this Termination and any ancillary documents only in its capacity as counsel to the SPAC to facilitate a recapitalization of the SPAC through Gardiner Sponsor and Founder. The Parties acknowledge and agree that they have been previously advised as to the scope of SPAC Counsel’s representation and of the fact that SPAC Counsel does not represent any of them (except SPAC) in any capacity in relation to the subject matter of this Termination or any of the ancillary documents. Each Party acknowledges that SPAC Counsel assisted in the preparation of the limited liability company operating agreement of both Gardiner Sponsor and Founder in relation to the SPAC’s initial public offering of securities. Furthermore, the Parties hereby acknowledge and agree that they have been advised that they are entitled to retain advisors, including legal, tax and financial advisors, in relation to their review and execution of this Termination and all ancillary documents. The Parties acknowledge and agree that, in the event any dispute or controversy arises between the Parties, on the one hand, and the SPAC (or an affiliate of the SPAC that SPAC Counsel represents), on the other hand, SPAC Counsel may represent either the SPAC or any affiliate of the SPAC, or both, in any such dispute or controversy to the extent permitted by the applicable rules of professional conduct in any jurisdiction, and each Party hereby consents to such representation. Each Party further acknowledges and agrees that, whether or not SPAC Counsel has in the past represented such Party with respect to other matters, SPAC Counsel has not represented the interests of any Party, except SPAC, in the preparation and negotiation of this Termination. SPAC Counsel is an express third party beneficiary of this Section 5(b). |
| 6. | Severability. If any one or more of the provisions contained in this Termination, or the application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired, unless the provisions held invalid, illegal or unenforceable shall substantially impair the benefits of the remaining provisions of this Termination. The Parties hereto further agree to replace such invalid, illegal or unenforceable provision of this Termination with a valid, legal and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid, illegal or unenforceable provision. |
| 7. | Governing Law. This Termination and any certificates delivered pursuant hereto shall be governed by and construed in accordance with the laws of the State of Delaware without reference to the choice of law principles thereof. Each Party hereby agrees and consents to be subject to the exclusive jurisdiction of the United States District Court in Delaware and, in the absence of such federal jurisdiction, the Parties consent to be subject to the exclusive jurisdiction of any Delaware state court located and hereby waive the right to assert the lack of personal or subject matter jurisdiction or improper venue in connection with any such suit, action or other proceeding. In furtherance of the foregoing, each of the Parties (a) waives the defense of inconvenient forum, (b) agrees not to commence any suit, action or other proceeding arising out of this Termination or any transactions contemplated hereby other than in any such court, and (c) agrees that a final judgment in any such suit, action or other proceeding shall be conclusive and may be enforced in other jurisdictions by suit or judgment or in any other manner provided by law. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT SUCH PARTIES MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY SUIT OR ACTION ARISING OUT OF THIS TERMINATION OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HEREBY CERTIFIES THAT NEITHER THE OTHER PARTY NOR ANY OF ITS REPRESENTATIVES HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT IT WOULD NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL. FURTHER, EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY RELIED ON THIS WAIVER OF RIGHT TO JURY TRIAL AS A MATERIAL INDUCEMENT TO ENTER INTO THIS TERMINATION. |
| 8. | Counterparts. This Termination may be executed in any number of counterparts, each of which, when so executed, shall be deemed to be an original, and all such counterparts shall together constitute but one and the same agreement. Counterparts may be delivered via facsimile, electronic mail or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. |
[Signature Page Follows]
IN WITNESS WHEREOF, each Party has executed and delivered this Termination as of the date first above written.
| GARDINER HEALTHCARE HOLDINGS, LLC | ||
| By: | Gardiner Founder LLC, | |
| its Managing Member | ||
| By: | /s/ Marc F. Pelletier | |
| Name: Marc F. Pelletier | ||
| Title: Managing Member | ||
| CHARDAN GARDINER LLC | ||
| By: | /s/ Jonas Grossman | |
| Name: Jonas Grossman | ||
| Title: Managing Member | ||
| CCMAUS PTY LTD | ||
| By: | /s/ Mohendra Moodley | |
| Name: Mohendra Moodley | ||
| Title: Director | ||
[Sponsor Signature Page]
IN WITNESS WHEREOF, each Party has executed and delivered this Termination as of the date first above written.
| Moss Ridge Pty Ltd | ||
| Name of Lender | ||
| /s/ Chris Camarsh | ||
| Signature of authorized signatory | ||
| Chris Camarsh | ||
| Name of authorized signatory | ||
| CIO | ||
| Title of authorized signatory |
[Signature Page of Lenders]
| Seisun Capital PTY LTD | ||
| Name of Lender | ||
| /s/ Chris Camarsh | ||
| Signature of authorized signatory | ||
| Chris Camarsh | ||
| Name of authorized signatory | ||
| CIO | ||
| Title of authorized signatory |
[Sponsor Signature Page]
| Sera Australia PTY LTD ATF Serani Hybrid Trust | ||
| Name of Lender | ||
| /s/ Anthony Julian | ||
| Signature of authorized signatory | ||
| Anthony Julian | ||
| Name of authorized signatory | ||
| Director | ||
| Title of authorized signatory |
[Sponsor Signature Page]
| Guy Spriggs Trust 12/16 | ||
| Name of Lender | ||
| /s/ Guy Spriggs | ||
| Signature of authorized signatory | ||
| Guy Spriggs | ||
| Name of authorized signatory | ||
| Owner | ||
| Title of authorized signatory |
[Sponsor Signature Page]
| Virginia Stack | ||
| Name of Lender | ||
| /s/ Virginia Stack | ||
| Signature of Lender |
[Sponsor Signature Page]
| Kent Rinker | ||
| Name of Lender | ||
| /s/ Kent Rinker | ||
| Signature of Lender |
[Sponsor Signature Page]
| Greg Sukenik | ||
| Name of Lender | ||
| /s/ Greg Sukenik | ||
| Signature of Lender |
[Sponsor Signature Page]
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.
SCHEDULE A
SPONSORS
| Sponsor | Shares of SPAC Common Stock Held |
| Gardiner Healthcare Holdings, LLC | 1,336,563 |
| Chardan Gardiner LLC | 370,125 |
| CCMAUS Pty Ltd. | 349,562 |
LENDERS
| Lender | Address | Loan Amount by Loan |
| Seisun Capital PTY LTD | [***] | $75,000 |
| Guy Spriggs Trust 12/16 | [***] | $200,000 |
| Kent Rinker | [***] | $50,000 |
| Greg Sukenik | [***] | $25,000 |
| Moss Ridge PTY LTD | [***] | $534,723.45 |
| Anthony Julian, Sera Australia PTY LTD ATF Serani Hybrid Trust | [***] | $14,636.00 |
| Moss Ridge PTY LTD | [***] | $167,000.00 |
| Moss Ridge PTY LTD | [***] | $30,000.00 |
| Moss Ridge PTY LTD | [***] | $75,000.00 |
| Virginia Stack (Gerald Stack) | [***] | $75,000 |