Item 1.01 Entry into a Material Definitive Agreement.
On March 31, 2021, Greenlane Holdings, Inc. (the "Company" or "Greenlane"),
Merger Sub Gotham 1, LLC, a wholly owned subsidiary of the Company ("Merger Sub
1"), and Merger Sub Gotham 2, LLC, a wholly owned subsidiary of the Company
("Merger Sub 2" and, together with the Company and Merger Sub I, the "Greenlane
Parties"), entered into an Agreement and Plan of Merger (the "Merger Agreement")
with KushCo Holdings, Inc. ("KushCo"). The Merger Agreement, the Mergers (as
defined below) and the other transactions contemplated by the Merger Agreement
were unanimously approved by a special committee of the Company's Board of
Directors consisting entirely of the Company's independent and disinterested
directors (the "Special Committee") and the Company's Board of Directors.
Merger Agreement
Pursuant to the terms of the Merger Agreement, subject to the satisfaction or
waiver of certain conditions set forth in the Merger Agreement:
• Merger Sub 1 will be merged with and into KushCo with KushCo as the surviving
corporation and a wholly-owned subsidiary of the Company ("Initial Surviving
Corporation") ("Merger 1"); and
• the Initial Surviving Corporation will then be merged with and into Merger Sub
2 with Merger Sub 2 as the surviving limited liability company and a
wholly-owned subsidiary of the Company ("Merger 2," and together with Merger 1,
the "Mergers").
Under the terms of the Merger Agreement, KushCo's stockholders will receive
approximately 0.2546 shares of the Company's Class A common stock, par value
$0.01 per share (the "Class A common stock") for each share of KushCo common
stock (the "Base Exchange Ratio"), subject to adjustment as described in the
Merger Agreement (the Base Exchange Ratio, as adjusted, the "Exchange Ratio").
The Base Exchange Ratio is expected to result in KushCo stockholders owning
approximately 49.9% of the Class A common stock and existing stockholders of the
Company owning approximately 50.1% of the Class A common stock.
The Merger Agreement permits the Company to continue to pursue opportunistic and
strategic priorities prior to the closing of the Mergers, including engaging in
certain contemplated acquisitions and capital raising transactions. If the
Company issues additional securities prior to the closing of the Merger in
connection with any acquisitions or capital raising transactions, then the Base
Exchange Ratio will be adjusted such that the Company's existing stockholders
maintain an aggregate interest of at least 50.1%, and not more than 51.9%, in
the Company following the completion of the Mergers.
At or immediately prior to the effective time of Merger 1, subject to the
approval of the Company's, stockholders, the Company's Amended and Restated
Certificate of Incorporation will be amended and restated (the "Charter
Amendment") in order to (i) effect a conversion of each outstanding share of
Class C common stock for three shares of Class B common stock (the "Class C
Conversion"), increase the number of authorized shares of Class B common stock
from 10,000,000 shares to 30,000,000 shares and (ii) increase the number of
authorized shares of Class A common stock from 125,000,000 million shares to
600,000,000 shares.
Following the completion of the Mergers, the size of the Company's Board of
Directors will be increased to seven members consisting four existing directors
of the Company, including Aaron LoCascio and Adam Schoenfeld, and three current
KushCo directors, including Nicholas Kovacevich, KushCo's Chairman and Chief
Executive Officer. Mr. Kovacevich will serve as the Company's Chief Executive
Officer following the completion of the Mergers, Mr. LoCascio will serve as the
Company's President and Mr. Schoenfeld will continue to serve as the Company's
Chief Strategy Officer. In addition, William Mote will continue to serve as the
Company's Chief Financial Officer.
The Mergers are subject to customary closing conditions including, among other
things, (1) the approval of the Merger Agreement by holders of a majority of the
outstanding shares of KushCo's common stock (the "Requisite KushCo Approval"),
(2) the repayment of certain KushCo indebtedness and release of related liens,
(3) approval of the Merger Agreement by holders of a majority of the voting
power of the outstanding shares of the Company's common stock held by
stockholders other than (i) Jacoby & Co. Inc. ("Jacoby"), an entity controlled
by the Company's co-founders, and its affiliates and (ii) the chief executive
officer, chief financial officer, chief operating officer, and general counsel
of the Company, (4) the approval of the Charter Amendment by holders of a
majority of the voting power of the outstanding shares of the Company's common
stock, (5) the approval of the issuance of shares of the Class A common stock in
connection with Merger 1 by the affirmative vote of a majority of the votes cast
by stockholders of the Company entitled to vote on the matter (the items
numbered (3) through (5) are referred to herein as the "Requisite Greenlane
Approvals"), (6) the approval for the Nasdaq listing of the shares of the Class
A common stock to be issued in Merger 1, (7) the accuracy of the representations
and warranties made by the parties (subject to customary materiality
qualifications), (8) the effectiveness of a Registration Statement on Form S-4
registering the issuance of the shares of Class A common stock to be issued by
the Company in Merger 1, (9) the performance by the parties in all material
respects of their covenants, obligations and agreements under the Merger
Agreement, (10) the expiration or termination of the required waiting period
(and any extensions thereof) under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, (11) the delivery of tax opinions that the Company
Merger will qualify as a reorganization within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended and (12) no occurrence of a
material adverse effect (which exclude COVID-19 related effects) on the Company
or KushCo.
Treatment of Equity Awards
Immediately prior to the effective time of Merger 1, each KushCo stock option
(whether or not vested or exercisable) will be converted into an option to
purchase, on the same terms and conditions that apply to such option, that
number of shares of the Class A common stock multiplied by the Exchange Ratio at
an exercise price determined by dividing the per share exercise price covered by
the Company option immediately prior to Merger 1 by the Exchange Ratio.
Immediately prior to Merger 1, each KushCo restricted stock unit will vest in
full and be settled and treated as a share of the KushCo's common stock in
Merger 1.
Immediately prior to Merger 1, all unvested Greenlane equity awards other than
those held by non-employee directors will become fully vested.
No Shop
Effective as of the signing of the Merger Agreement, the Company and KushCo are
prohibited from soliciting, initiating, seeking, encouraging, facilitating
(including by furnishing non-public information), continuing, or engaging in
discussions or negotiations regarding, a proposal or inquiry that constitutes or
could reasonably be expected to lead to a proposal to acquire 20% or more of
their respective assets or capital stock (an "Acquisition Proposal"). However,
if prior to obtaining the Requisite Greenlane Approvals or the Requisite KushCo
Approval, as applicable, Greenlane or KushCo receives a bona fide, unsolicited,
written Acquisition Proposal that Greenlane's Board of Directors or KushCo's
Board of Directors determines to be, or could reasonably be expected to lead to,
a "superior proposal," and Greenlane Board of Directors (or the Special
Committee) or KushCo Board of Directors, as applicable, reasonably determines
that failure to take the following actions would be inconsistent with its
fiduciary duties, then the party that received the Acquisition Proposal may
provide to the person who made the Acquisition Proposal non-public information
and engage in discussions and negotiations, under an acceptable confidentiality
agreement. Within 48 hours, the party that received the Acquisition Proposal is
required to notify the other party to the Merger Agreement regarding any
Acquisition Proposal and provide the identity of the party submitting the
proposal and a copy of the proposal or a summary of the material terms of the
proposal, and must keep the other party to the Merger Agreement reasonably
apprised of material developments.
If, prior to obtaining the Requisite Greenlane Approvals or the Requisite KushCo
Approval, as applicable, a superior proposal is received or certain intervening
events occur, Greenlane's Board of Directors (or the Special Committee) or
KushCo's Board of Directors, as applicable, may change its recommendation with
respect to the Merger Agreement if it reasonably determines that failure to do
so would be inconsistent with its fiduciary duties.
Termination
The Merger Agreement may be terminated under certain circumstances, including by
mutual consent or by the Company or KushCo, as applicable, if (1) if the Mergers
have not been completed on or before December 31, 2021, subject to one
thirty-day (30) extension, (2) if there is in effect an order of a governmental
entity restraining or enjoining the Mergers (whether temporary, preliminary or
permanent) (3) upon failure of either party to obtain the requisite stockholder
approval, (4) upon a material breach by the other party that would result in the
failure of a closing condition to be capable of being satisfied before the
. . .
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
As described above under Item 1.01, all unvested Greenlane equity awards,
including those held by Aaron LoCascio, the Company's Chief Executive Officer,
Adam Schoenfeld, the Company's Chief Strategy Officer, William Mote, the
Company's Chief Financial Officer, William Bine, the Company's Chief Operating
Officer, and Douglas Fischer, the Company's General Counsel, will become fully
vested immediately prior to the completion of Merger 1.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
Exhibit
Number Description of Exhibit
2.1 Agreement and Plan of Merger, dated as of March 31, 2021, by and
among Greenlane Holdings, Inc., Merger Sub Gotham 1, LLC, Merger Sub
Gotham 2, LLC and KushCo Holdings, Inc.*
10.1 Voting Agreement, dated as of March 31, 2021, by and among Jacoby &
Co. Inc., Greenlane Holdings, Inc. and KushCo Holdings, Inc.
10.2 Voting Agreement, dated as of March 31, 2021, by and among Nicholas
Kovacevich, Greenlane Holdings, Inc. and KushCo Holdings, Inc.
10.3 Voting Agreement, dated as of March 31, 2021, by and among Dallas
Imbimbo, Greenlane Holdings, Inc. and KushCo Holdings, Inc.
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*The Company has omitted schedules and other similar attachments to such
agreement pursuant to Item 601(b) of Regulation S-K. The Company will furnish a
copy of such omitted document to the SEC upon request.
Important Information for Investors and Stockholders
In connection with the proposed transaction, Greenlane expects to file with the
Securities and Exchange Commission ("SEC") a registration statement on Form S-4
that will include a joint proxy statement of Greenlane and KushCo that also
constitutes a prospectus of Greenlane, which joint proxy statement will be
mailed or otherwise disseminated to Greenlane's and KushCo's respective
stockholders when it becomes available. Greenlane and KushCo also plan to file
other relevant documents with the SEC regarding the proposed transaction.
INVESTORS ARE URGED TO READ THE JOINT PROXY STATEMENT/PROSPECTUS AND OTHER
RELEVANT DOCUMENTS FILED WITH THE SEC IF AND WHEN THEY BECOME AVAILABLE, BECAUSE
THEY WILL CONTAIN IMPORTANT INFORMATION.
Investors and security holders may obtain free copies of the registration
statement and the joint proxy statement/prospectus (if and when it becomes
available) and other relevant documents filed by Greenlane and KushCo with the
SEC at the SEC's website at www.sec.gov. Copies of the documents filed by the
companies will be available free of charge on their respective websites at
www.gnln.com and www.kushco.com.
Participants in Solicitation
This Current Report on Form 8-K relates to a proposed transaction between
Greenlane and KushCo. This Current Report on Form 8-K is not a proxy statement
or solicitation of a proxy, consent or authorization with respect to any
securities or in respect of the potential transaction. Greenlane, KushCo and
their respective directors and executive officers may be considered participants
in the solicitation of proxies in connection with the proposed transaction.
Information about the directors and executive officers of Greenlane is set forth
in its proxy statement for its 2020 annual meeting of stockholders, which was
filed with the SEC on April 24, 2020. Information about the directors and
executive officers of KushCo is set forth in its proxy statement for its 2021
annual meeting of stockholders, which was filed with the SEC on December 28,
2020. These documents can be obtained free of charge from the sources indicated
above. Additional information regarding the participants in the proxy
solicitations and a description of their direct and indirect interests, by
security holdings or otherwise, will be contained in the joint proxy
statement/prospectus and other relevant materials to be filed with the SEC when
they become available.
No Offer or Solicitation
This communication is not intended to and shall not constitute an offer to sell
or the solicitation of an offer to sell or the solicitation of an offer to buy
any securities or a solicitation of any vote of approval, nor shall there be any
sale of securities in any jurisdiction in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the securities
laws of any such jurisdiction. No offer of securities shall be made except by
means of a prospectus meeting the requirements of Section 10 of the Securities
Act.
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