Exhibit 5.1
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Our ref: AMF/781326-000003/31045374v11
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[Subject to review and amendment]
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Waldencast plc
2nd Floor, Sir Walter Raleigh House
48-50 Esplanade
St Helier
Jersey
JE2 3QB
[●] 2022
Waldencast plc (the “Company”)
We have acted as counsel as to Jersey law to the Company. The Company has legally continued to Jersey from the Cayman Islands on [●] 2022. We refer in this opinion to the Company prior to its continuance to Jersey as
the “Cayman Company”.
This opinion is being delivered in connection with the Registration Statement (File No. 333-253370) of the Company on Form F-4 filed with the United States Securities and Exchange Commission (the “Commission”) on 14 February 2022, including all amendments or supplements thereto, under the United States Securities Act of 1933, as amended (the “Act”) (including its
exhibits, the “Registration Statement”).
We have been requested to provide you with a legal opinion on matters of Jersey law in relation to:
| (a) |
the continuance of the Cayman Company to Jersey;
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| (b) |
the class A ordinary shares of US$0.0001 each in the capital of the Company (the “Class A Ordinary Shares”); and
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| (c) |
each whole warrant exercisable to purchase one Class A Ordinary Share at a price of US$11.50 per Class A Ordinary Share pursuant to the Warrant Instrument (as defined below) (the “Warrants”).
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This opinion is given in accordance with the terms of the Legal Matters section of the Registration Statement.
We have reviewed originals, copies, drafts or conformed copies of the following documents which we have deemed necessary to give this opinion:
| 1.1 |
The certificate of incorporation of the Company and certificate of continuance of the Company dated [●] (the “Certificate of Continuance”), the consent dated [●] issued to the Company pursuant to the
Control of Borrowing (Jersey) Order 1958, the consent issued by the Registrar of Companies of the Jersey Financial Services Commission dated [●] to the issue of the Warrants by the Company pursuant to the Control of Borrowing (Jersey) Order
1958 and the memorandum and articles of association of the Company as registered or adopted on [●] (the “Memorandum and Articles”).
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| 1.2 |
A scanned certified copy of the register of members of the Company, supplied to us on [●] 2022 by Maples Fiduciary Services (Jersey) Limited (the “Register of Members”).
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| 1.3 |
A certificate of good standing in respect of the Company issued by the Jersey Financial Services Commission on [●] 2022 (the “Certificate of Good Standing”).
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| 1.4 |
A certificate from a director of the Company, a copy of which is attached to this opinion (the “Director’s Certificate”).
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| 1.5 |
The Registration Statement.
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| 1.6 |
The warrant agreement dated 15 March 2021 between the Cayman Company and Continental Stock Transfer and Trust Company and the warrant certificate constituting the Warrants, filed as Exhibit 4.4 to the Registration Statement (the “Warrant Agreement”).
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| 1.7 |
The agreement and plan of merger dated 15 November 2021 between the Cayman Company, Obagi Merger Sub, Inc and Obagi Holdings Limited, filed as Exhibit 2.1 to the Registration Statement (the “Obagi Merger
Agreement”).
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| 1.8 |
The equity purchase agreement dated 15 November 2021 between the Cayman Company, Waldencast Partners LP, Obagi Holdco 1 Limited, Milk Makeup LLC, the members listed therein and the equityholder representative listed therein, filed as
Exhibit 2.2 to the Registration Statement (the “Milk Equity Purchase Agreement”).
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Each of the Warrant Agreement, the Obagi Merger Agreement and the Milk Equity Purchase Agreement are together the “Documents”.
| 1.9 |
The written resolutions of the board of directors of the Cayman Company dated 13 January 2021, 22 February 2021 and 15 March 2021 approving entry into the Warrant Agreement and the minutes of the meeting of the board of directors of the
Cayman Company dated 13 November 2021 approving entry into the Obagi Merger Agreement and the Milk Equity Purchase Agreement (as defined below) (together the “Resolutions”).
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| 1.10 |
The public records relating to the Company available for inspection via the website of the Registrar of Companies in Jersey (including, as applicable, the records and information maintained by the Registrar of Companies as Registrar under
the Security Interests (Jersey) Law 2012) (“SIJL”) at the time we inspected such records (the “Public Records”).
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| 1.11 |
The response received by us today from the office of the Viscount of the Royal Court of Jersey to our enquiry made to such office in respect of the Company (the “Viscount Response”).
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| 1.12 |
The response received by us today from the office of the Judicial Greffe in Jersey to our enquiry made to such office in respect of a creditors’ winding up in relation to the Company (the “Creditor Winding
Up Response”).
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| 1.13 |
Save for the searches referred to at paragraphs 1.10 to 1.12 (inclusive) and our examination of documentation we have expressly referred to, we have not made any searches or enquiries concerning, and have not examined any documents entered
into by or affecting, the Company or any other person.
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The following opinions are given only as to, and based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to the laws of Jersey which are in
force on the date of this opinion letter. In giving the following opinions, we have relied (without further verification) upon the completeness and accuracy, as at the date of this opinion letter, of the Director’s Certificate and the Certificate of
Good Standing. We have also relied upon the following assumptions, which we have not independently verified:
| 2.1 |
The Documents have been or will be authorised and duly executed and unconditionally delivered by or on behalf of all relevant parties in accordance with all relevant laws (other than, with respect to the Company, the laws of Jersey).
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| 2.2 |
The Documents are, or will be, legal, valid, binding and enforceable against all relevant parties in accordance with their terms under the laws of the State of New York in respect of the Warrant Agreement and the laws of the State of
Delaware in respect of the Obagi Merger Agreement and the Milk Equity Purchase Agreement (together the “Relevant Laws”) and all other relevant laws (other than, with respect to the Company, the laws of
Jersey).
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| 2.3 |
The choice of the Relevant Laws as the governing law of the Documents (as applicable) has been made in good faith and would be regarded as a valid and binding selection which will be upheld by the courts of the State of New York in respect
of the Warrant Agreement and the courts of the State of Delaware in respect of the Obagi Merger Agreement and the Milk Equity Purchase Agreement (together the “Relevant Jurisdictions”) and any other
relevant jurisdiction (other than Jersey) as a matter of the Relevant Laws and all other relevant laws (other than the laws of Jersey).
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| 2.4 |
Copies of documents provided to us are true and complete copies of, or in the final forms of, the originals, and translations of documents provided to us are complete and accurate.
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| 2.5 |
All signatures, initials and seals are genuine.
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| 2.6 |
The capacity, power, authority and legal right of all parties under all relevant laws and regulations (other than, with respect to the Company, the laws and regulations of Jersey) to enter into, execute, unconditionally deliver and perform
their respective obligations under the Documents.
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| 2.7 |
The Company is acting on its own behalf and not as an agent, trustee, nominee or in any other capacity in entering into the Documents.
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| 2.8 |
There is no contractual or other prohibition or restriction (other than as arising under Jersey law) binding on the Company prohibiting or restricting it from entering into and performing its obligations under the Documents.
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| 2.9 |
No monies paid to or for the account of any party under the Documents or any property received or disposed of by any party to the Documents in each case in connection with the Documents or the consummation of the transactions contemplated
thereby constitute, represent or will constitute or represent proceeds of criminal conduct or proceeds of criminal conduct (as defined in the Proceeds of Crime (Jersey) Law 1999).
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| 2.10 |
The Company has not entered into any security interests, mortgages or charges over its property or assets.
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| 2.11 |
In resolving that the Cayman Company enter into the Documents and the transaction(s) documented or contemplated by the Documents, the directors of the Cayman Company were acting with a view to the best interests of the Cayman Company and
were otherwise exercising their powers in accordance with their duties under all applicable laws.
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| 2.12 |
The Viscount Response (construed as if the expression “to the best of my knowledge and belief” or similar are not included) is accurate and complete.
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| 2.13 |
The Creditor Winding Up Response (construed as if the expression “to the best of my knowledge and belief” or similar are not included) is accurate and complete.
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| 2.14 |
The Resolutions were duly passed in the manner prescribed in the memorandum and articles of association in force at the time of such Resolutions and the laws of the Cayman Islands and have not been amended, varied or revoked in any
respect.
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| 2.15 |
The Register of Members is true, accurate and complete as at the date of this opinion.
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| 2.16 |
The Company will receive or has received money or money’s worth in consideration for the issue of the Class A Ordinary Shares and none of the Class A Ordinary Shares were or will be issued for less than par value.
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| 2.17 |
The subscription monies for the Class A Ordinary Shares have been paid in full to the Company and the Class A Ordinary Shares have been issued in accordance with the Memorandum and Articles, the memorandum and articles of association in
force at the time of issue of such Class A Ordinary Shares and the laws of the Cayman Islands.
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| 2.18 |
The Registration Statement has been, or will be, authorised and duly executed and delivered by or on behalf of all relevant parties in accordance with all relevant laws.
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| 2.19 |
There is no document or other information or matter (including, without limitation, any non- binding or unenforceable arrangement or understanding) that has not been provided or disclosed to us that is relevant to or that might affect the
opinions expressed in this opinion.
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| 2.20 |
Save as aforesaid we have not been instructed to undertake and have not undertaken any further enquiry or due diligence in relation to the transaction the subject of this opinion.
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Based upon and subject to the foregoing assumptions and the qualifications set out below, and having regard to such legal considerations as we deem relevant, we are of the opinion that:
| 3.1 |
The Company has (upon its continuance to Jersey) been duly incorporated with limited liability and is validly existing under the laws of Jersey.
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| 3.2 |
According to the Certificate of Good Standing, there are no overdue annual confirmation statements to be filed by the Company and the Registrar of Companies has not initiated any action to strike the Company off the register of Jersey
companies.
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| 3.3 |
It is possible to legally migrate (i.e. legally domesticate) the corporate existence of the Cayman Company to Jersey as a matter of Jersey law. For the purposes of Jersey law, upon registration of the continuance to Jersey of the Cayman
Company which is evidenced by the issue by the Registrar of Companies in Jersey of the Certificate of Continuance (the “Domestication”):
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(a) |
the Cayman Company becomes the Company and a company incorporated under the Companies (Jersey) Law 1991 (as amended) (the “Law”), to which the Law applies;
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(b) |
in terms of corporate personality, the Law recognises the Company as the same legal person as the Cayman Company before the continuance took place, rather than as a new company;
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| 3.4 |
In addition to the matters set out at paragraph 3.3, when a body corporate is continued as a company incorporated under the Law, the Law provides that:
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(a) |
all property and rights to which the body corporate (i.e. the Cayman Company) was entitled immediately before the issue of the Certificate of Continuance are the property and rights of the Company;
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(b) |
the Company is subject to all criminal and civil liabilities, and all contracts, debts and other obligations, to which the body corporate was subject immediately before the issue of the Certificate of Continuance;
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(c) |
all actions and other legal proceedings which, immediately before the issue of the Certificate of Continuance, were pending by or against the body corporate may be continued by or against the Company.
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| 3.5 |
From the date of Domestication, the Company has all requisite power and authority under the Memorandum and Articles to perform its obligations under the Documents.
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| 3.6 |
The performance by the Company of its obligations under the Documents and the Domestication will not conflict with or result in a breach of any of the terms or provisions of the Memorandum and Articles or any law, public rule or regulation
applicable to the Company currently in force in Jersey or any order or decree of any governmental authority currently in force in Jersey to which the Company or its property is subject.
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| 3.7 |
No authorisations, consents, approvals, licences, validations or exemptions (other than those already held by the Company) are required by law from any governmental authorities or agencies or other official bodies in Jersey in connection
with:
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(a) |
the Domestication; or
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(b) |
the enforcement of the Documents against the Company; or
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(c) |
the performance by the Company of its obligations under the Documents.
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| 3.8 |
The Class A Ordinary Shares to be offered by the Company as contemplated by the Registration Statement (including the issuance of Class A Ordinary Shares upon the exercise of the Warrants in accordance with the Documents) have been duly
authorised for issue, and when issued by the Company in accordance with the Memorandum and Articles and against payment in full of the consideration as set out in the Registration Statement and in accordance with the terms set out in the
Registration Statement (including the issuance of Class A Ordinary Shares upon the exercise of the Warrants in accordance with the Documents), such Class A Ordinary Shares will be validly issued, fully paid and non-assessable shares and, upon
entry on the Register of Members, the holders of the Class A Ordinary Shares will be the registered holder of such number of Class A Ordinary Shares as will be noted against their respective names on the Register of Members. As a matter of
Jersey law, a share is only issued when it has been entered in the register of members.
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The opinions expressed above are subject to the following qualifications:
| 4.1 |
The obligations assumed by the Company under the Documents will not necessarily be enforceable in all circumstances in accordance with their terms. In particular:
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(a) |
enforcement may be limited by bankruptcy, insolvency, liquidation, reorganisation, readjustment of debts or moratorium or other laws of general application relating to or affecting the rights of creditors;
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(b) |
enforcement may be limited by general principles broadly equivalent to those of equity under English law. For example, equitable remedies such as specific performance may not be available, inter alia,
where damages are considered to be an adequate remedy;
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(c) |
some claims may become barred under relevant statutes of limitation or may be or become subject to defences of set-off, counterclaim, estoppel and similar defences;
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(d) |
where obligations are to be performed in a jurisdiction outside Jersey, they may not be enforceable in Jersey to the extent that performance would be illegal under the laws of that jurisdiction;
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(e) |
arrangements that constitute penalties will not be enforceable to the extent that such penalties are excessive;
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(f) |
enforcement may be prevented by reason of fraud, coercion, duress, undue influence, misrepresentation, public policy or mistake or limited by the doctrine of frustration of contracts;
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(g) |
provisions imposing confidentiality obligations may be overridden by compulsion of applicable law or the requirements of legal and/or regulatory process;
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(h) |
the courts of Jersey may decline to exercise jurisdiction in relation to substantive proceedings brought under or in relation to the Documents in matters where they determine that such proceedings may be tried in a more appropriate forum;
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(i) |
any provision in a Document which is governed by Jersey law purporting to impose obligations on a person who is not a party to such Document (a “third party”) is unenforceable against that third
party and a third party may not be able to enforce any provision of a Document expressed or intended to be for their benefit;
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(j) |
any provision of a Document which is governed by Jersey law which expresses any matter to be determined by future agreement may be void or unenforceable;
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(k) |
we reserve our opinion as to the enforceability of the relevant provisions of the Documents to the extent that they purport to grant exclusive jurisdiction as there may be circumstances in which the courts of Jersey would accept
jurisdiction notwithstanding such provisions; and
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(l) |
a company cannot, by agreement or in its articles of association, restrict the exercise of a statutory power and there is doubt as to the enforceability of any provision in the Documents whereby the Company covenants to restrict the
exercise of powers specifically given to it under the Companies Law, including, without limitation, the power to increase its authorised share capital, amend its memorandum and articles of association or present a petition to the Royal Court
of Jersey for an order to wind up the Company.
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| 4.2 |
To maintain the Company in good standing with the Registrar of Companies in Jersey under the laws of Jersey, annual filing fees must be paid and returns made to the Registrar of Companies in Jersey within the time frame prescribed by law.
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| 4.3 |
Under Jersey law, the register of members (shareholders) is prima facie evidence of title to shares and this register would not record a third party interest in such shares. There are certain
limited circumstances where an application may be made to the Jersey court by a person aggrieved, or a member of the company, or the company for rectification of the register. The Jersey court may refuse such application or may order
rectification of the register and payment by the company of any damages sustained by a party aggrieved. As far as we are aware, such applications are rarely made in Jersey and for the purposes of the opinion given in paragraph 3.2, there are
no circumstances or matters of fact known to us on the date of this opinion which would properly form the basis for an application for an order for rectification of the register of members of the Company, but if such an application were made
in respect of the Class A Ordinary Shares, then the validity of such shares may be subject to re-examination by the Jersey court.
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| 4.4 |
In this opinion the phrase “non-assessable” means, with respect to the issuance of shares, that a shareholder shall not, in respect of the relevant shares and in the absence of a contractual arrangement, or an obligation pursuant to the
memorandum and articles of association, to the contrary, have any obligation to make further contributions to the Company’s assets (except in exceptional circumstances, such as involving fraud, the establishment of an agency relationship or
an illegal or improper purpose or other circumstances in which a court may be prepared to pierce or lift the corporate veil or the shareholder is a contributory as defined under the Law.
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| 4.5 |
Applicable court fees will be payable in respect of the enforcement of the Documents.
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| 4.6 |
The obligations of the Company may be subject to restrictions pursuant to United Nations, European Union and United Kingdom sanctions as implemented under the laws of Jersey and other sanctions or other restrictive measures imposed by
Jersey authorities, under Jersey legislation.
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| 4.7 |
A certificate, determination, calculation or designation of any party to the Documents as to any matter provided therein might be held by a Jersey court not to be conclusive final and binding if, for example, it could be shown to have an
unreasonable or arbitrary basis, or in the event of manifest error.
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| 4.8 |
A provision of a Document may not be enforced where such provision:
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(a) |
concerns payment or reimbursement of, or indemnity against, the costs and expenses of actual or contemplated enforcement or of litigation before a Jersey court or a foreign court where that court has itself made an order for costs;
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(b) |
purports to permit or allow the enforcement of foreign revenue or penal or other public laws; or
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(c) |
purports to exclude the jurisdiction of any court.
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| 4.9 |
We reserve our opinion as to the extent to which the courts of Jersey would, in the event of any relevant illegality or invalidity, sever the relevant provisions of the Documents and enforce the remainder of the Documents or the
transaction of which such provisions form a part, notwithstanding any express provisions in the Documents in this regard.
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| 4.10 |
We express no opinion as to the meaning, validity or effect of any references to foreign (i.e. non-Jersey) statutes, rules, regulations, codes, judicial authority or any other promulgations and any references to them in the Documents.
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| 4.11 |
We express no opinion on whether or not any matter contemplated by any Document constitutes a transaction at an undervalue or a preference or could be disclaimed as onerous property under Jersey law.
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| 4.12 |
Preferred creditors under Jersey law will rank ahead of unsecured creditors of the Company. Furthermore, all costs, charges and expenses properly incurred in the winding up of a company, including the remuneration of the liquidators,
are payable out of the assets of the Company in priority to all other unsecured claims.
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| 4.13 |
Where a party to a Document has discretion or may determine a matter in its own opinion such discretion may require to be exercised reasonably and such opinion may be required to be made on reasonable grounds.
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| 4.14 |
The effectiveness of release or exculpation provisions may be limited by operation of law.
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| 4.15 |
Confidentiality obligations may be overridden by legal process or other legal or regulatory requirements.
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| 4.16 |
A provision of a Document that is considered by the Jersey courts to be usurious may not be effective and unjust enrichment may not be allowed.
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| 4.17 |
The search of the Public Records is not conclusively able to reveal whether or not:
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(a) |
a winding up order has been made or a resolution passed to wind up the Company;
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(b) |
an order has been made or resolution passed to appoint a liquidator or a provisional liquidator to the Company; or
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(c) |
a security interest has been created and perfected under the SIJL.
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| 4.18 |
The Viscount Response relates only to the property of the Company being declared en désastre. There is no formal procedure to determine whether the Company is bankrupt pursuant to the
Interpretation (Jersey) Law 1954, and the Viscount Response does not confirm whether any statutory demand has been served through the Viscount’s Department.
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| 4.19 |
The Creditor Winding Up Response relates only to a search of the Royal Court of Jersey civil records in respect of applications for a creditors’ winding up pursuant to Articles 157A to 157C (inclusive) of the Law.
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| 4.20 |
The Creditor Winding Up Response will not cover:
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(a) |
any statutory demand that a creditor has served on the Company as a precursor to the creditors’ winding up application;
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(b) |
where a creditor has agreed not to issue an application for a creditors’ winding up or the claim is for the repossession of goods;
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(c) |
a creditors’ winding up application which has been filed with the Judicial Greffe but has not yet been recorded in the creditors’ winding up applications list with the Judicial Greffe;
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(d) |
if an order for a creditors’ winding up has been made by the Royal Court of Jersey; and
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(e) |
where the creditors’ winding up application has been dismissed or terminated by the Royal Court of Jersey.
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| 4.21 |
The Royal Court of Jersey may order that a creditors’ winding up commences in respect of a Jersey company on the date the application is made or on such other date as the court deems fit. Accordingly, a creditors’ winding up considered by
the Royal Court after the date of this opinion may be deemed to commence on a date prior to this opinion.
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| 4.22 |
Information available in public registers in Jersey is limited. There is a register of certain Jersey security interests, a record of hypotheques over Jersey real property and a record of mortgages over Jersey-registered ships and
aircraft. We have not examined any such public records for the purposes of any opinion given in this opinion letter, other than as expressly referred to in this opinion letter.
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We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to our firm under the headings “Legal Matters” and “Enforcement of Civil Liabilities” in the prospectus
included in the Registration Statement. In providing our consent, we do not thereby admit that we are in the category of persons whose consent is required under section 7 of the Act or the Rules and Regulations of the Commission thereunder.
We express no view as to the commercial terms of the Registration Statement, the Documents or any ancillary documents or whether such terms represent the intentions of the parties and make no comment with regard to
warranties or representations that may be made by the Company.
The opinions in this opinion letter are strictly limited to the matters contained in the Opinions section above and do not extend to any other matters. We have not been asked to review and we therefore have not
reviewed any ancillary documents relating to the Registration Statement and/or the Documents entered into or to be entered into by the Company and express no opinion or observation upon the terms of any such document.
This opinion letter is addressed to you and may be relied upon by you, your counsel and holders of Class A Ordinary Shares pursuant to the Registration Statement. This opinion letter is limited to the matters detailed
herein and is not to be read as an opinion with respect to any other matter.
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Yours faithfully
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Maples and Calder (Jersey) LLP
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Exhibit 5.3
| Our ref SMC/781326-000002/70850597v3 |
Subject to review and amendment |
Waldencast Acquisition Corp.
PO Box 309, Ugland House
Grand Cayman, KY1-1104
Cayman Islands
[*] 2022
Waldencast Acquisition Corp.
We have acted as counsel as to Cayman Islands law to Waldencast Acquisition, Inc. (the “Company”) in connection with the Company’s registration statement on Form F-4, including
all amendments or supplements thereto, filed with the United States Securities and Exchange Commission (the “Commission”) under the United States Securities Act of 1933, as amended (the “Act”) (including its exhibits, the “Registration Statement”) for the purposes of, registering with the Commission under the Act, the issue by the Company subsequent to its
domestication as a Jersey company (the “Domestication”) of up to 86,462,321 ordinary shares (the “Ordinary Share”) and 17,433,333
warrants, each warrant exercisable to purchase one Ordinary Share, pursuant to the business combination transaction contemplated by the Agreement and Plan of Merger dated as of 15 November 2021 and made among the Company, Obagi Global Holdings
Limited and Obagi Merger Sub, Inc., as amended from time to time (the “Agreement”).
This opinion letter is given in accordance with the terms of the Legal Matters section of the Registration Statement.
We have reviewed originals, copies, drafts or conformed copies of the following documents:
| 1.1 |
The certificate of incorporation dated 8 December 2020, and the memorandum and articles of association of the Company as registered or adopted on 8 December 2020 (the “Memorandum and Articles”).
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| 1.2 |
The written resolutions of the board of directors of the Company dated 13 January 2021, 22 February 2021 and 15 March 2021 (together, the “Resolutions”), the minutes (the “Minutes”) of the meetings of the board of directors of the Company held on 13 November 2021 (the “Meeting”) and the corporate records of the Company maintained at its registered office
in the Cayman Islands.
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| 1.3 |
A certificate of good standing with respect to the Company issued by the Registrar of Companies (the “Certificate of Good Standing”).
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| 1.4 |
A certificate from a director of the Company a copy of which is attached to this opinion letter (the “Director’s Certificate”).
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| 1.5 |
The de-registration application filed with the Registrar of Companies in the Cayman Islands on [*] 2022, including a notice pursuant to section 206(2)(c) of the Companies Act (As Revised) (the “Companies
Act”) in respect of the proposed registered office or agent for service of process in the jurisdiction of the Domestication, an undertaking pursuant to section 206(2)(i) of the Companies Act that notice of the continuation has been
or will be given within twenty-one days to the secured creditors of the Company and an affidavit pursuant to section 206(3) of the Companies Act relating to the matters set out in sections 206(2)(d), (e), (f), (g), (h), (j), (k), (l), and (n)
of the Companies Act (the “Affidavit”) (together the “Filings”).
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| 1.6 |
The Registration Statement.
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| 1.7 |
The warrant agreement dated 15 March 2021 between the Cayman Company and Continental Stock Transfer and Trust Company and the warrant certificate constituting the Warrants, filed as Exhibit 4.4 to the Registration Statement (the “Warrant Documents”).
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| 1.8 |
The agreement and plan of merger dated 15 November 2021 between the Cayman Company, Obagi Merger Sub, Inc and Obagi Holdings Limited, filed as Exhibit 2.1 to the Registration Statement (the “Obagi Merger
Agreement”).
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| 1.9 |
The equity purchase agreement dated 15 November 2021 between the Cayman Company, Waldencast Partners LP, Obagi Holdco 1 Limited, Milk Makeup LLC, the members listed therein and the equityholder representative listed therein, filed as
Exhibit 2.2 to the Registration Statement (the “Milk Equity Purchase Agreement”, and together with the Warrant Documents and the Obagi Merger Agreement, the “Transaction
Documents”).
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The following opinions are given only as to, and based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to the laws of the Cayman Islands
which are in force on the date of this opinion letter. In giving the following opinions, we have relied (without further verification) upon the completeness and accuracy, as at the date of this opinion letter, of the Director’s Certificate and the
Certificate of Good Standing. We have also relied upon the following assumptions, which we have not independently verified:
| 2.1 |
The Transaction Documents have been or will be authorised and duly executed and unconditionally delivered by or on behalf of all relevant parties in accordance with all relevant laws (other than, with respect to the Company, the laws of
the Cayman Islands).
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| 2.2 |
The Transaction Documents are, or will be, legal, valid, binding and enforceable against all relevant parties in accordance with their terms under the State of New York in respect of the Warrant Agreement and the laws of the State of
Delaware in respect of the Obagi Merger Agreement and the Milk Equity Purchase Agreement (together the “Relevant Laws”) and all other relevant laws (other than, with respect to the Company, the laws of
the Cayman Islands).
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| 2.3 |
The choice of the Relevant Laws as the governing law of the Documents (as applicable) has been made in good faith and would be regarded as a valid and binding selection which will be upheld by the courts of the State of New York in respect
of the Warrant Agreement and the courts of the State of Delaware in respect of the Obagi Merger Agreement and the Milk Equity Purchase Agreement (together the “Relevant Jurisdictions”) and any other
relevant jurisdiction (other than the Cayman Islands) as a matter of the Relevant Law and all other relevant laws (other than the laws of the Cayman Islands).
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| 2.4 |
Copies of documents, conformed copies or drafts of documents provided to us are true and complete copies of, or in the final forms of, the originals.
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| 2.5 |
All signatures, initials and seals are genuine.
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| 2.6 |
The capacity, power, authority and legal right of all parties under all relevant laws and regulations (other than, with respect to the Company, the laws and regulations of the Cayman Islands) to enter into, execute, unconditionally deliver
and perform their respective obligations under the Transaction Documents.
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| 2.7 |
No invitation has been or will be made by or on behalf of the Company to the public in the Cayman Islands to subscribe for the Warrants or the Ordinary Shares.
|
| 2.8 |
There is no contractual or other prohibition or restriction (other than as arising under Cayman Islands law) binding on the Company prohibiting or restricting it from entering into and performing its obligations under the Registration
Statement or the Transaction Documents.
|
| 2.9 |
No monies paid to or for the account of any party under the Transaction Documents or any property received or disposed of by any party to the Transaction Documents in each case in connection with the Transaction Documents or the
consummation of the transactions contemplated thereby represent or will represent proceeds of criminal conduct or criminal property or terrorist property (as defined in the Proceeds of Crime Law (As Revised) and the Terrorism Law (As
Revised), respectively).
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| 2.10 |
The laws of the jurisdiction of the Domestication do not prohibit the Migration as set out in section 206 of the Companies Act.
|
| 2.11 |
There is nothing under any law (other than the laws of the Cayman Islands) which would or might affect the opinions set out below. Specifically, we have made no independent investigation of the Relevant Laws or the laws of the jurisdiction
of the Domestication.
|
| 2.12 |
The Company will receive money or money’s worth in consideration for the issue of the Ordinary Shares and none of the Ordinary Shares were or will be issued for less than par value.
|
Save as aforesaid we have not been instructed to undertake and have not undertaken any further enquiry or due diligence in relation to the transaction the subject of this opinion letter.
Based upon, and subject to, the foregoing assumptions and the qualifications set out below, and having regard to such legal considerations as we deem relevant, we are of the opinion that:
| 3.1 |
The Company was duly incorporated as an exempted company with limited liability and, at the date of the Domestication, was validly existing and in good standing with the Registrar of Companies under the laws of the Cayman Islands.
|
| 3.2 |
The Company had, immediately prior to the Domestication, all requisite power and authority under the Memorandum and Articles to undertake the Domestication.
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| 3.3 |
The Company has taken all corporate actions required to authorise the Domestication.
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| 3.4 |
All steps necessary as a matter of Cayman Islands law to de-register the Company as a Cayman Islands exempted company have been taken by the Company.
|
| 3.5 |
The Ordinary Shares to be offered and issued by the Company as contemplated by the Registration Statement (including the issuance of Ordinary Shares upon the exercise of the Warrants in accordance with the Warrant Documents) have been duly
authorised for issue.
|
| 3.6 |
The Company had at the date of execution of the Transaction Documents and at all subsequent times until the Domestication, all requisite power and authority under the Memorandum and Articles and under Cayman Islands law to enter into,
execute deliver and perform its obligations under the Registration Statement and the Transaction Documents.
|
| 3.7 |
The execution and delivery of the Transaction Documents have not and do not, and the performance by the Company of its obligations under the Transaction Documents prior to the Domestication did not, conflict with or result in a breach of
any of the terms or provisions of the Memorandum and Articles or any law, public rule or regulation applicable to the Company currently in force in the Cayman Islands, or any order or decree of any governmental authority of the Cayman Islands
to which the Company or its property is subject.
|
| 3.8 |
The execution, delivery and performance of the Transaction Documents have been authorised by and on behalf of the Company, the Transaction Documents have been duly executed and delivered on behalf of the Company and, immediately prior to
the Domestication, constituted the legal, valid and binding obligations of the Company enforceable in accordance with their terms.
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| 3.9 |
No authorisations, consents, approvals, licences, validations or exemptions are required by law from any governmental authorities or agencies or other official bodies in the Cayman Islands in connection with:
|
|
(a) |
the execution, creation or delivery of the Transaction Documents by and on behalf of the Company;
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(b) |
the filing of the Registration Statement with the Commission;
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(c) |
subject to the payment of the appropriate stamp duty, enforcement of the Transaction Documents against the Company; or
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(d) |
the performance by the Company of its obligations under the Registration Statement or the Transaction Documents.
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| 3.10 |
Other than approval of the Registrar of Companies, no orders, authorisations, consents, approvals, licences or validations are required by law from any governmental authorities or agencies or other official bodies in the Cayman Islands to
authorise the Domestication.
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The opinions expressed above are subject to the following qualifications:
| 4.1 |
The term “enforceable” as used above means that the obligations assumed by the Company under the Transaction Documents are of a type which the courts of the Cayman Islands will enforce. It does not
mean that those obligations will necessarily be enforced in all circumstances in accordance with their terms. In particular:
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(a) |
enforcement may be limited by bankruptcy, insolvency, liquidation, reorganisation, readjustment of debts or moratorium or other laws of general application relating to or affecting the rights of creditors;
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(b) |
enforcement may be limited by general principles of equity. For example, equitable remedies such as specific performance may not be available, inter alia, where damages are considered to be an
adequate remedy;
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(c) |
some claims may become barred under relevant statutes of limitation or may be or become subject to defences of set off, counterclaim, estoppel and similar defences;
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(d) |
where obligations are to be performed in a jurisdiction outside the Cayman Islands, they may not be enforceable in the Cayman Islands to the extent that performance would be illegal under the laws of that jurisdiction;
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(e) |
some claims may become barred under relevant statutes of limitation or may be or become subject to defences of set off, counterclaim, estoppel and similar defences;
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(f) |
the courts of the Cayman Islands have jurisdiction to give judgment in the currency of the relevant obligation and statutory rates of interest payable upon judgments will vary according to the currency of the judgment. If the Company
becomes insolvent and is made subject to a liquidation proceeding, the courts of the Cayman Islands will require all debts to be proved in a common currency, which is likely to be the “functional currency” of the Company determined in
accordance with applicable accounting principles. Currency indemnity provisions have not been tested, so far as we are aware, in the courts of the Cayman Islands;
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(g) |
arrangements that constitute penalties will not be enforceable;
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(h) |
enforcement may be prevented by reason of fraud, coercion, duress, undue influence, misrepresentation, public policy or mistake or limited by the doctrine of frustration of contracts;
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(i) |
provisions imposing confidentiality obligations may be overridden by compulsion of applicable law or the requirements of legal and/or regulatory process;
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(j) |
the courts of the Cayman Islands may decline to exercise jurisdiction in relation to substantive proceedings brought under or in relation to the Transaction Documents in matters where they determine that such proceedings may be tried in a
more appropriate forum;
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(k) |
we reserve our opinion as to the enforceability of the relevant provisions of the Transaction Documents to the extent that they purport to grant exclusive jurisdiction as there may be circumstances in which the courts of the Cayman Islands
would accept jurisdiction notwithstanding such provisions; and
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(l) |
a company cannot, by agreement or in its articles of association, restrict the exercise of a statutory power and there is doubt as to the enforceability of any provision in the Transaction Documents whereby the Company covenants to
restrict the exercise of powers specifically given to it under the Companies Act (As Revised) of the Cayman Islands, including, without limitation, the power to increase its authorised share capital, amend its memorandum and articles of
association or present a petition to a Cayman Islands court for an order to wind up the Company.
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| 4.2 |
The Registrar of Companies has the right to refuse de-registration of a company where he believes that it would be against public interest to do so.
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| 4.3 |
Applicable court fees will be payable in respect of the enforcement of the Transaction Documents.
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| 4.4 |
Cayman Islands stamp duty may be payable if the original Transaction Documents are brought to or executed in the Cayman Islands.
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| 4.5 |
To maintain the Company in good standing with the Registrar of Companies under the laws of the Cayman Islands, annual filing fees must be paid and returns made to the Registrar of Companies within the time frame prescribed by law.
|
| 4.6 |
The Company must make an entry in its register of mortgages and charges in respect of all mortgages and charges created under the Transaction Documents in order to comply with section 54 of the Companies Act; failure by the Company to
comply with this requirement does not operate to invalidate any mortgage or charge though it may be in the interests of the secured parties that the Company should comply with the statutory requirements. The obligations of the Company may be
subject to restrictions pursuant to United Nations and United Kingdom sanctions extended to the Cayman Islands by Orders of Her Majesty in Council and sanctions imposed by Cayman Islands authorities, under Cayman Islands legislation.
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| 4.7 |
A certificate, determination, calculation or designation of any party to the Transaction Documents as to any matter provided therein might be held by a Cayman Islands court not to be conclusive final and binding if, for example, it could
be shown to have an unreasonable or arbitrary basis, or in the event of manifest error.
|
| 4.8 |
In principle the courts of the Cayman Islands will award costs and disbursements in litigation in accordance with the relevant contractual provisions but there remains some uncertainty as to the way in which the rules of the Grand Court
will be applied in practice. Whilst it is clear that costs incurred prior to judgment can be recovered in accordance with the contract, it is likely that post-judgment costs (to the extent recoverable at all) will be subject to taxation in
accordance with Grand Court Rules Order 62.
|
| 4.9 |
We reserve our opinion as to the extent to which the courts of the Cayman Islands would, in the event of any relevant illegality or invalidity, sever the relevant provisions of the Transaction Documents and enforce the remainder of the
Transaction Documents or the transaction of which such provisions form a part, notwithstanding any express provisions in the Transaction Documents in this regard.
|
| 4.10 |
We express no opinion as to the meaning, validity or effect of any references to foreign (i.e. non-Cayman Islands) statutes, rules, regulations, codes, judicial authority or any other promulgations and any references to them in the
Transaction Documents.
|
| 4.11 |
Under Cayman Islands law, the register of members (shareholders) is prima facie evidence of title to shares and this register would not record a third party interest in such shares. However, there
are certain limited circumstances where an application may be made to a Cayman Islands court for a determination on whether the register of members reflects the correct legal position. Further, the Cayman Islands court has the power to order
that the register of members maintained by a company should be rectified where it considers that the register of members does not reflect the correct legal position. As far as we are aware, such applications are rarely made in the Cayman
Islands and for the purposes of the opinion given in paragraph 3.2, there are no circumstances or matters of fact known to us on the date of this opinion letter which would properly form the basis for an application for an order for
rectification of the register of members of the Company, but if such an application were made in respect of the Ordinary Shares, then the validity of such shares may be subject to re-examination by a Cayman Islands court.
|
| 4.12 |
Except as specifically stated herein, we make no comment with respect to any representations and warranties which may be made by or with respect to the Company in any of the documents or instruments cited in this opinion letter or
otherwise with respect to the commercial terms of the transactions the subject of this opinion letter.
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| 4.13 |
In this opinion letter, the phrase “non-assessable” means, with respect to shares in the Company, that a shareholder shall not, solely by virtue of its status as a shareholder, be liable for additional assessments or calls on the shares by
the Company or its creditors (except in exceptional circumstances, such as involving fraud, the establishment of an agency relationship or an illegal or improper purpose or other circumstances in which a court may be prepared to pierce or
lift the corporate veil).
|
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the references to our firm under the heading “Legal Matters” in the prospectus included in the Registration
Statement. In providing our consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the Rules and Regulations of the Commission thereunder.
This opinion letter is addressed to you and may be relied upon by you, your counsel and purchasers of Units pursuant to the Registration Statement. This opinion letter is limited to the matters detailed herein and is
not to be read as an opinion with respect to any other matter.
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Yours faithfully
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Maples and Calder (Cayman) LLP
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Waldencast Acquisition Corp.
PO Box 309, Ugland House
Grand Cayman
KY1-1104
Cayman Islands
[*] 2022
To:
Maples and Calder (Cayman) LLP
PO Box 309, Ugland House
Grand Cayman
KY1-1104
Cayman Islands
Waldencast Acquisition Corp. (the “Company”)
I, the undersigned, being a director of the Company, am aware that you are being asked to provide an opinion letter (the “Opinion”) in relation to certain aspects of Cayman
Islands law. Unless otherwise defined herein, capitalised terms used in this certificate have the respective meanings given to them in the Opinion. I hereby certify that:
| 1 |
Immediately prior to the Domestication, the Memorandum and Articles remained in full force and effect and were unamended.
|
| 2 |
The Company has not entered into any mortgages or charges over its property or assets other than those entered in the register of mortgages and charges of the Company.
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| 3 |
Each of the Resolutions were duly passed in the manner prescribed in the Memorandum and Articles (including, without limitation, with respect to the disclosure of interests (if any) by directors of the Company) and have not been amended,
varied or revoked in any respect.
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| 4 |
The Minutes are a true and correct record of the proceedings of the Meeting, which was duly convened and held, and at which a quorum was present throughout, in each case, in the manner prescribed in the Memorandum and Articles. The
resolutions set out in the Minutes were duly passed in the manner prescribed in the Memorandum and Articles (including, without limitation, with respect to the disclosure of interests (if any) by directors of the Company) and have not been
amended, varied or revoked in any respect.
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| 5 |
Immediately prior to the Domestication, the authorised share capital of the Company was US$55,500 divided into 500,000,000 Class A ordinary shares of a par value of US$0.0001 each, 50,000,000 Class B ordinary shares of a par value of
US$0.0001 each and 5,000,000 preference shares of a par value of US$0.0001 each.
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| 6 |
The shareholders of the Company (the “Shareholders”) had not, at any time prior to the Domestication, restricted the powers of the directors of the Company in any way.
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| 7 |
The directors of the Company at the date of each of the Resolutions were as follows: Michel Brousset, Felipe Dutra and Cristiano Souza
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| 8 |
The directors of the Company at the date of the Meeting were as follows: Michel Brousset, Felipe Dutra, Cristiano Souza, Sarah Brown, Juliette Hickman, Lindsay Pattison and Zack Werner.
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| 9 |
The directors of the Company at the date of this certificate are as follows: Michel Brousset, Felipe Dutra, Cristiano Souza, Sarah Brown, Juliette Hickman, Lindsay Pattison, Zack Werner and Aaron Chatterley.
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| 10 |
The minute book and corporate records of the Company as maintained at its registered office in the Cayman Islands until the Domestication and made available to you are complete and accurate in all material respects, and all minutes and
resolutions filed therein represent a complete and accurate record of all meetings of the Shareholders and directors (or any committee thereof) of the Company (duly convened in accordance with the Memorandum and Articles) and all resolutions
passed at the meetings or passed by written resolution or consent, as the case may be.
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| 11 |
Prior to, at the time of, and immediately following the approval of the transactions contemplated by the Registration Statement and the execution of the Transaction Documents, the Company was, able to pay its debts as they fell, or fall,
due and has entered into the transactions contemplated by the Registration Statement and the Transaction Documents for proper value and not with an intention to defraud or wilfully defeat an obligation owed to any creditor or with a view to
giving a creditor a preference.
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| 12 |
Each director of the Company considers the transactions contemplated by the Registration Statement and the Transaction Documents to be of commercial benefit to the Company and has acted in good faith in the best interests of the Company,
and for a proper purpose of the Company, in relation to the transactions which are the subject of the Opinion.
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| 13 |
The representations made in the Filings on behalf of the Company to the Registrar of Companies in the Cayman Islands in support of its application to de-register are true and correct.
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| 14 |
To the best of my knowledge and belief, having made due inquiry, the Affidavit is accurate and complete and has been sworn by a director of the Company in accordance with the Articles and the Minutes.
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| 15 |
To the best of my knowledge and belief, having made due inquiry, the Company is not the subject of legal, arbitral, administrative or other proceedings in any jurisdiction. Nor have the directors or Shareholders taken any steps to have the
Company struck off or placed in liquidation, nor have any steps been taken to wind up the Company. Nor has any receiver been appointed over any of the Company’s property or assets.
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| 16 |
To the best of my knowledge and belief, having made due inquiry, there are no circumstances or matters of fact existing which may properly form the basis for an application for an order for rectification of the register of members of the
Company.
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| 17 |
The Registration Statement has been, or will be, authorised and duly executed and delivered by or on behalf of all relevant parties in accordance with all relevant laws.
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| 18 |
The Transaction Documents have been duly delivered on behalf of the Company.
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| 19 |
No invitation has been made or will be made by or on behalf of the Company to the public in the Cayman Islands to subscribe for any of the Ordinary Shares or the Warrants.
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| 20 |
The Company is not a central bank, monetary authority or other sovereign entity of any state and is not a subsidiary, direct or indirect, of any sovereign entity or state.
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| 21 |
There is no contractual or other prohibition or restriction (other than as arising under Cayman Islands law) binding on the Company prohibiting or restricting it from entering into and performing its obligations under the Registration
Statement and the Transaction Documents.
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I confirm that you may continue to rely on this certificate as being true and correct on the day that you issue the Opinion unless I shall have previously notified you in writing personally to the contrary.
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Signature:
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Name:
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[*]
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Title:
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Director
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Exhibit 10.41
FIRST AMENDMENT TO FINANCING AGREEMENT
This FIRST AMENDMENT TO FINANCING AGREEMENT, dated as of June 10, 2022 and effective as of March 31, 2022 (this “Agreement”), to the Financing Agreement, dated as of March 16, 2021 (as the
same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, including any replacement agreement therefor, the “Financing Agreement”), by and among Obagi Global Holdings Limited, an exempted
company incorporated under the laws of the Cayman Islands with limited liability (the “Ultimate Parent”), Obagi Holdings Company Limited, an exempted company incorporated under the laws of the Cayman Islands with limited liability, Obagi
Cosmeceuticals LLC, a Delaware limited liability company (together with each other Person that executes a joinder agreement and becomes a “Borrower” thereunder, each a “Borrower” and collectively, the “Borrowers”), each subsidiary of
the Ultimate Parent listed as a “Guarantor” on the signature pages thereto (together with the Ultimate Parent and each other Person that executes a joinder agreement and becomes a “Guarantor” thereunder, each, a “Guarantor” and, collectively,
the “Guarantors”; the Guarantors and the Borrowers, collectively, are referred to herein as the “Loan Parties”, and each, a “Loan Party”), the lenders from time to time party thereto (each, a “Lender” and, collectively,
the “Lenders”), TCW Asset Management Company LLC, a Delaware limited liability company (“TCW”), as collateral agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, the “Collateral Agent”),
and TCW, as administrative agent for the Lenders.
W I T N E S S E T H :
WHEREAS, the Loan Parties have requested that the Collateral Agent and the Required Lenders effect certain amendments to the Financing Agreement, in each case as further detailed herein; and
WHEREAS, pursuant to Section 12.02 of the Financing Agreement, the amendments requested by the Loan Parties must be in writing agreed to by the Collateral Agent and the Required Lenders, and the
Collateral Agent and the Required Lenders are willing to agree to such amendments on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1.
Defined Terms. Any capitalized term used herein and not defined shall have the meaning assigned to it in the Financing Agreement.
2.
Amendments. Subject to the satisfaction of the conditions set forth in Section 3 below, and in reliance on the representations and warranties set forth in Section
4 below, the Financing Agreement is hereby amended, effective as of March 31, 2022, as follows:
(a)
Clause (b) of Section 7.03 of the Financing Agreement is hereby amended by replacing “3.50 to 1.00” where it appears therein (in the column with the heading “Leverage Ratio”
opposite “March 31, 2022” in the column with the heading “Fiscal Quarter End”) with “4.59 to 1.00”.
3.
Conditions to Effectiveness. This Agreement shall become effective only upon satisfaction in full, in a manner satisfactory to the Collateral Agent, of the following
conditions precedent (the date such conditions are fulfilled or waived by the Collateral Agent is hereinafter referred to as the “Effective Date”):
(a)
The Collateral Agent shall have received this Agreement, duly executed by each Borrower, each Guarantor, the Collateral Agent, and Lenders constituting the Required Lenders.
(b)
Immediately after giving effect to this Agreement, the representations and warranties contained in this Agreement and in Article VI of the Financing Agreement and in each
other Loan Document shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material
Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of the Effective Date as though made on and as of such date (except to the extent that any
such representation and warranty expressly relates solely to an earlier date, in which case, such representation and warranty shall be true and correct as of such earlier date).
(c)
Immediately after giving effect to this Agreement, no Default or Event of Default shall have occurred and be continuing on the Effective Date.
(d)
The Loan Parties shall have paid (i) a waiver fee to the Collateral Agent for the ratable benefit of the Lenders in the amount of $742,438.00, which fee shall be earned in
full as of the Effective Date and shall be non-refundable, and (ii) all other fees, costs, expenses and taxes then payable, if any, pursuant to Section 2.06 or 12.04 of the Financing Agreement).
4.
Representations and Warranties. Each of the Loan Parties represents and warrants as follows:
(a)
The execution, delivery and performance by such Loan Party of this Agreement and the performance by such Loan Party of the Financing Agreement, as modified hereby, have been duly authorized by all necessary action, and such Loan Party has all
requisite power, authority and legal right to execute, deliver and perform this Agreement and to perform the Financing Agreement, as modified hereby.
(b)
This Agreement and the Financing Agreement, as modified hereby, is a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance
with the terms thereof, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally.
(c)
The following statements are true and correct after giving effect to the amendments set forth in Section 2: (i) the representations and warranties contained in this Agreement,
ARTICLE VI of the Financing Agreement and in each other Loan Document, certificate or other writing delivered to any Agent or any Lender pursuant hereto or thereto on or prior to the Effective Date are true and correct in all material respects
(except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties
shall be true and correct in all respects subject to such qualification) on and as of the Effective Date as though made on and as of such date, except to the extent that any such representation or warranty expressly relates solely to an earlier date
(in which case such representation or warranty shall be true and correct on and as of such earlier date) and (ii) no Default or Event of Default has occurred and is continuing on the Effective Date or would result from this Agreement becoming
effective in accordance with its terms.
5.
Release. Each Loan Party hereby acknowledges and agrees that: (a) neither it nor any of its Subsidiaries has any claim or cause of action against any Agent or any
Lender (or any of their respective Affiliates or Related Funds, or any of the directors, officers, employees, agents, attorneys or consultants of the foregoing) and (b) the Agents and the Lenders have heretofore properly performed and satisfied in a
timely manner all of their obligations to the Loan Parties, and all of their Subsidiaries and Affiliates. Notwithstanding the foregoing, the Agents and the Lenders wish (and the Loan Parties agree) to eliminate any possibility that any past
conditions, acts, omissions, events or circumstances would impair or otherwise adversely affect any of their rights, interests, security and/or remedies. Accordingly, for and in consideration of the agreements contained in this Agreement and other
good and valuable consideration, each Loan Party (for itself and its Subsidiaries and Affiliates and the successors, assigns, heirs and representatives of each of the foregoing) (collectively, the “Releasors”) does hereby fully, finally,
unconditionally and irrevocably release, waive and forever discharge the Agents and the Lenders, together with their respective Affiliates and Related Funds, and each of the directors, officers, employees, agents, attorneys and consultants of each of
the foregoing (collectively, the “Released Parties”), from any and all debts, claims, allegations, obligations, damages, costs, attorneys’ fees, suits, demands, liabilities, actions, proceedings and causes of action, in each case, whether
known or unknown, contingent or fixed, direct or indirect, and of whatever nature or description, and whether in law or in equity, under contract, tort, statute or otherwise, which any Releasor has heretofore had or now or hereafter can, shall or may
have against any Released Party by reason of any act, omission or thing whatsoever done or omitted to be done, in each case, on or prior to the Effective Date directly arising out of, connected with or related to this Agreement, the Financing
Agreement or any other Loan Document, or any act, event or transaction related or attendant thereto, or the agreements of any Agent or any Lender contained therein, or the possession, use, operation or control of any of the assets of any Loan Party,
or the making of any Loans or other advances, or the management of such Loans or advances or the Collateral. Each Loan Party represents and warrants that it has no knowledge of any claim by any Releasor against any Released Party or of any facts or
acts or omissions of any Released Party which on the date hereof would be the basis of a claim by any Releasor against any Released Party which would not be released hereby.
6.
Miscellaneous.
(a)
Continued Effectiveness of the Financing Agreement. Except as otherwise expressly provided herein, the Financing Agreement and the other Loan Documents are, and shall
continue to be, in full force and effect and are hereby ratified and confirmed in all respects. Except as expressly provided herein, the execution, delivery and effectiveness of this Agreement shall not: (i) operate as an amendment, modification or
waiver of any right, power or remedy of the Agents or the Lenders under the Financing Agreement or any other Loan Document; (ii) constitute an amendment or waiver of any provision of the Financing Agreement or any other Loan Document; or (iii)
constitute a waiver of, or consent to, any Default or Event of Default now existing or hereafter arising under the Financing Agreement or any other Loan Document, and the Agents and the Lenders expressly reserve all of their rights and remedies under
the Financing Agreement and the other Loan Documents, under applicable law and otherwise.
(b)
Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to
be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by facsimile or electronic mail shall be equally as effective as delivery of an original executed
counterpart of this Agreement.
(c)
Headings. Section headings herein are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.
(d)
Costs and Expenses. The Loan Parties agree to pay on demand all fees, costs and expenses of the Agents and the Lenders in connection with the preparation, execution
and delivery of this Agreement.
(e)
Agreement as Loan Document. Each Loan Party hereby acknowledges and agrees that this Agreement constitutes a “Loan Document” under the Financing Agreement.
Accordingly, it shall be an Event of Default under the Financing Agreement if (i) any representation or warranty made by any Loan Party under or in connection with this Agreement shall have been incorrect in any respect when made or deemed made or
(ii) any Loan Party shall fail to perform or observe any term, covenant or agreement contained in this Agreement.
(f)
Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
(g)
Waiver of Jury Trial. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
THIS Agreement OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their respective duly authorized officers as of the date
first written above.
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BORROWER:
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OBAGI COSMECEUTICALS LLC
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By:
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/s/ Jaime Castle
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Name: Jaime Castle
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Title: President and Chief Executive Officer
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GUARANTORS:
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OBAGI HOLDINGS COMPANY LIMITED
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By:
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/s/ Jaime Castle
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Name: Jaime Castle
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Title: President
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OBAGI GLOBAL HOLDINGS LIMITED
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By:
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/s/ Jaime Castle
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Name: Jaime Castle
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Title: Authorized Representative
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CLINACTIV TECHNOLOGY LIMITED
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By:
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/s/ Simon Dai
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Name: Simon Dai
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Title: Authorized Representative
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CLINACTIV(US) LLC
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By:
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/s/ Jaime Castle
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Name: Jaime Castle
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Title: President
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[Signature Page to Amendment]
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COLLATERAL AGENT:
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TCW ASSET MANAGEMENT COMPANY LLC
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By:
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/s/ Suzanne Grosso
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Name: Suzanne Grosso
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Title: Managing Director
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[Signature Page to Amendment]
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REQUIRED LENDERS:
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SAFETY NATIONAL CASUALTY CORPORATION, as a Lender
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By:
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TCW Asset Management Company LLC, its Investment Manager and Attorney-in-Fact
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By:
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/s/ Suzanne Grosso
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Name: Suzanne Grosso
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Title: Managing Director
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RELIANCE STANDARD LIFE INSURANCE COMPANY, as a Lender
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By:
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TCW Asset Management Company LLC, its Investment Manager and Attorney-in-Fact
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By:
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/s/ Suzanne Grosso
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Name: Suzanne Grosso
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Title: Managing Director
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TCW DIRECT LENDING STRUCTURED SOLUTIONS 2019 LLC, as a Lender
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By:
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TCW Asset Management Company LLC, its Investment Advisor
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By:
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/s/ Suzanne Grosso
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Name: Suzanne Grosso
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Title: Managing Director
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TCW BRAZOS FUND LLC, as a Lender
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By:
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TCW Asset Management Company LLC, its Investment Advisor
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By:
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/s/ Suzanne Grosso
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Name: Suzanne Grosso
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Title: Managing Director
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[Signature Page to Amendment]
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TCW SKYLINE LENDING, L.P, as a Lender
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By:
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TCW Asset Management Company LLC, its Investment Advisor
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By:
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/s/ Suzanne Grosso
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Name: Suzanne Grosso
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Title: Managing Director
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US SPECIALTY INSURANCE COMPANY, as a Lender
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By:
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TCW Asset Management Company LLC, its Investment Manager and Attorney-in-Fact
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By:
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/s/ Suzanne Grosso
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Name: Suzanne Grosso
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Title: Managing Director
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TCW DL VII FINANCING, LLC, as a Lender
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By:
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TCW Asset Management Company LLC, its Collateral Manager
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By:
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/s/ Suzanne Grosso
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Name: Suzanne Grosso
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Title: Managing Director
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PHILADELPHIA INDEMNITY INSURANCE COMPANY, as a Lender
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By:
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TCW Asset Management Company LLC, its Investment Manager and Attorney-in-Fact
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By:
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/s/ Suzanne Grosso
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Name: Suzanne Grosso
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Title: Managing Director
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TCW WV FINANCING LLC, as a Lender
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By:
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TCW Asset Management Company LLC, its Collateral Manager
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By:
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/s/ Suzanne Grosso
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Name: Suzanne Grosso
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Title: Managing Director
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[Signature Page to Amendment]
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TCW DIRECT LENDING VII LLC, as a Lender
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By:
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TCW Asset Management Company LLC, its Investment Advisor
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By:
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/s/ Suzanne Grosso
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Name: Suzanne Grosso
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Title: Managing Director
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CLIFFWATER CORPORATE LENDING FUND, as a Lender
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By:
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/s/ Stephen Nesbitt
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Name: Stephen Nesbitt
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Title: President
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PINEY LAKE OPPORTUNITIES NON-ECI MASTER FUND LP, as a Lender
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By:
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Piney Lake Capital Management LP, as Advisor
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By:
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/s/ Michael B. Lazar
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Name: Michael B. Lazar
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Title: President
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PL MOUNT POWELL NON-ECI LLC, as a Lender
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By:
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Piney Lake Capital Management LP, as Collateral Manager
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By:
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/s/ Michael B. Lazar
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Name: Michael B. Lazar
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Title: President
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[Signature Page to Amendment]
