Preview
FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018
NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023
EXHIBIT 11
Transcript Excerpts from Deposition of
Liberty CEO George Scorsis, Dated
October 27, 2020
Index No. 652343/2018
FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018
NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023
GEORGE SCORSIS Confidential October 27, 2020
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· · *** CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER ***
·1
·2· · · · · ·SUPREME COURT OF THE STATE OF NEW YORK
·3· · · · · · · · · · ·COUNTY OF NEW YORK
·4
·5· ·CRESCO LABS, NEW YORK, LLC,· · · ·)
·6· ·a New York limited liability· · · )
·7· ·company,· · · · · · · · · · · · · )
·8· · · · · · ·Plaintiff,· · · · · · · ) Index
·9· · · · -against-· · · · · · · · · · ) No. 652343/2018
10· ·FIORELLO PHARMACEUTICALS, INC.,· ·)
11· ·a New York corporation; ERIC· · · )
12· ·SIROTA, an individual; SUSAN YOSS,)
13· ·an individual; and JOHN DOES 1-10,)
14· · · · · · ·Defendants.· · · · · · ·)
15
16· · · · · · · ·The ** CONFIDENTIAL ** remote video
17· ·teleconference deposition of GEORGE SCORSIS, called
18· ·for examination, taken pursuant to the provisions of
19· ·the Code of Civil Procedure and the Rules of the
20· ·Supreme Court of the State of New York pertaining to
21· ·the taking of depositions for the purpose of
22· ·discovery, taken before DINA G. MANCILLAS, a
23· ·Certified Shorthand Reporter within and for the State
24· ·of Illinois, CSR No. 84-3400 of said State, on
25· ·October 27, 2020, at 14:10 UTC.
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·2· ·and Yoss on Thursday, Feb- -- February 22nd?
·3· · · · A.· · ·Yes.· To the best of my recollection,
·4· ·we did meet at a restaurant.· I think you
·5· ·referenced it a day ago, Stephen, the name of it.
·6· ·It sounds actually very close to Fiorello.
·7· · · · · · · ·And we did meet at that restaurant, and
·8· ·I do recall it was not lunch because I -- I recall
·9· ·what we -- I still remember that day.· We were
10· ·running around.· I think it was during the
11· ·Canaccord Genuity event.
12· · · · Q.· · ·And so you were in New York for -- for
13· ·other reasons?
14· · · · A.· · ·That's right.
15· · · · Q.· · ·And how long was your coffee meeting
16· ·with Sirota and Yoss?
17· · · · A.· · ·I can't remember.· It definitely wasn't
18· ·a prolonged lunch, I can -- I know that with
19· ·certainty, but I can't tell you a definitive time
20· ·frame.
21· · · · Q.· · ·And Mr. Gulliver participated in that
22· ·meeting as well, is that correct?
23· · · · A.· · ·Yes, he did.
24· · · · Q.· · ·And what did you talk about at that
25· ·coffee?
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·2· · · · A.· · ·This is what I was referencing earlier.
·3· ·From the best of my recollection, what I remember
·4· ·was, there was -- it was -- I recall us talking
·5· ·about more industry-wide dynamics, what's going to
·6· ·happen in the industry, what products will -- will
·7· ·definitely be the products that will be the
·8· ·thriving ones within the medical space because at
·9· ·that point, Liberty was exclusively a medical
10· ·platform.
11· · · · · · · ·And I remember, again, and I -- I can't
12· ·tell you which one of them was a pharmacist, but I
13· ·recall us addressing the -- which -- what product
14· ·innovation would be the one that -- that would
15· ·thrive within the industry because we were -- we
16· ·were using parallels within pharmaceutical and
17· ·cannabis.· That, I do recall, and I remember that
18· ·very, very fondly.
19· · · · · · · ·The discussion beyond that was -- I
20· ·can't really recall.
21· · · · Q.· · ·Did Sirota and Yoss say anything to you
22· ·in this conversation about the possibility of
23· ·being acquired?
24· · · · A.· · ·It would be unfair for me to say that
25· ·they did, based on my memory.
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·2· · · · Q.· · ·So you just don't remember one way or
·3· ·the other?
·4· · · · A.· · ·I don't.
·5· · · · Q.· · ·Did they tell you that they had entered
·6· ·into a letter of intent with another company that
·7· ·was interested in acquiring them?
·8· · · · A.· · ·Again, I -- I couldn't tell you
·9· ·specifically if they did at that point in time.
10· ·The only thing I can tell you is that at some
11· ·point, obviously, I was alerted that they can't
12· ·discuss to -- they can't discuss any formal
13· ·discussions.
14· · · · · · · ·And I can't remember if that was via an
15· ·email which I saw in one of those paths, but
16· ·obviously we -- we were aware of it.
17· · · · Q.· · ·But you don't remember learning that in
18· ·this coffee meeting?
19· · · · A.· · ·At this -- at this coffee meeting, no.
20· ·No.
21· · · · Q.· · ·Where they were telling you that they
22· ·had -- they were exclusive -- exclusively talking
23· ·to another company about an acquisition?
24· · · · A.· · ·No.
25· · · · · · · MS. IZOWER-FADDE:· Objection.
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·2· ·Exhibit 10.· Do you see that?
·3· · · · A.· · ·Okay.· Yes.
·4· · · · Q.· · ·And it's a little hard to read in my
·5· ·version, but you see on March 2nd, 2018, you send
·6· ·a text to Sirota saying, "We are sending you an
·7· ·unsolicited int hr next 24 hours.· Should I send
·8· ·to the board or to you?"
·9· · · · A.· · ·Uh-huh.
10· · · · Q.· · ·Do you see that?
11· · · · · · · ·Now, am I correct this is a little over
12· ·a week after your February 22nd coffee, correct?
13· · · · A.· · ·Yup.· I would assume so, yes.
14· · · · Q.· · ·And what happened between February 22nd
15· ·and March 2nd to cause you to decide to send them
16· ·an offer?
17· · · · · · · MS. IZOWER-FADDE:· Objection.
18· ·BY THE WITNESS:
19· · · · A.· · ·I don't recall with -- with full
20· ·clarity, Stephen, but I do see here that it looks
21· ·like we did a Massachusetts deal during this same
22· ·period, which, again, may have had bearing on why
23· ·I reengaged them.
24· · · · · · · ·It may have been that I was green lit
25· ·by the board to start expanding outside of
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·2· ·Florida.
·3· ·BY MR. ASCHER:
·4· · · · Q.· · ·Well, I'd like your recollection,
·5· ·Mr. Scorsis.· We don't want you to guess.· If you
·6· ·remember --
·7· · · · A.· · ·Yeah.· I would be guessing, Stephen. I
·8· ·would be guessing, I really would, on what
·9· ·triggered me to actually do that at that point.
10· · · · Q.· · ·All right.· So, for the record, we'll
11· ·move to strike that response.
12· · · · · · · ·Mr. Scorsis, you referred to an
13· ·unsolicited -- before getting to what you meant
14· ·here, do you have an understanding of what the
15· ·word "unsolicited" means in the M&A context?
16· · · · A.· · ·Yes, I do.
17· · · · Q.· · ·And -- and what does it mean?
18· · · · A.· · ·Well, it essentially means that they
19· ·were not -- they were not provoking or stimulating
20· ·me to -- to start putting an offer on the table,
21· ·the other party.· It was under my own mission and
22· ·commission that I did it.
23· · · · Q.· · ·And do you understand that -- that in
24· ·some circumstances could be an out for somebody
25· ·who is in -- under an exclusivity provision or a
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·2· ·no-shop provision?
·3· · · · · · · MS. IZOWER-FADDE:· Objection.
·4· ·BY THE WITNESS:
·5· · · · A.· · ·Do I -- do I under --
·6· ·BY MR. ASCHER:
·7· · · · Q.· · ·Let's go on.· Let me ask a better
·8· ·question.
·9· · · · A.· · ·Okay.
10· · · · Q.· · ·Do you understand what a no-shop
11· ·provision is?
12· · · · A.· · ·Yes, I do.· That means I can't talk to
13· ·any other party while they're binded with an
14· ·agreement or at least with regards to M&A activity
15· ·depending on the scope of the no-shop.
16· · · · Q.· · ·And so how does an unsolicited --
17· ·what's the relationship between an unsolicited
18· ·offer and an exclusivity or a no-shop provision?
19· · · · · · · MS. IZOWER-FADDE:· Objection.
20· ·BY THE WITNESS:
21· · · · A.· · ·Stephen, I think what you're asking --
22· ·and, please, I don't want to alter your
23· ·question -- is -- is, was there a request from
24· ·them to me to make us make an offer?
25· · · · · · · ·And at this point, I can't recall them
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·2· ·saying, hey, send something over to force a hand
·3· ·or anything along those lines.· I cannot recall
·4· ·that.
·5· ·BY MR. ASCHER:
·6· · · · Q.· · ·So my question, Mr. Scorsis, is whether
·7· ·you understand that in some circumstances a
·8· ·company that is subject to a no-shop provision,
·9· ·they may -- there may be an exception to allow
10· ·them to permit -- to receive an unsolicited offer.
11· · · · · · · ·Do you understand that?
12· · · · · · · MS. IZOWER-FADDE:· Objection.
13· ·BY THE WITNESS:
14· · · · A.· · ·Depend -- dependent on the agreement.
15· ·BY MR. ASCHER:
16· · · · Q.· · ·And so my question, Mr. Scorsis, is
17· ·whether seeing your words here that you were
18· ·describing your offer as unsolicited, does that
19· ·refresh your recollection that you knew at the
20· ·time that Fiorello was subject to a no-shop
21· ·provision in an agreement with another potential
22· ·acquirer?
23· · · · A.· · ·No.
24· · · · Q.· · ·Why did you use the word "unsolicited"
25· ·to describe your offer on February -- on
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·2· ·March 2nd?
·3· · · · A.· · ·I don't recall.
·4· · · · Q.· · ·Am I correct, Mr. Scorsis, that you
·5· ·did, in fact, send an offer to Sirota and Yoss
·6· ·shortly after this text?
·7· · · · A.· · ·I did see it in one of the texts.
·8· ·That's correct.
·9· · · · Q.· · ·And why don't I direct your attention
10· ·to what's been already marked as Gulliver
11· ·Exhibit 11, which is your Tab 14, which is an
12· ·email from you to Susan Yoss, Eric Sirota, dated
13· ·March 3rd, 2018.· "Subject:· Liberty Health
14· ·Sciences LOI to Fiorello Board of Directors."
15· · · · · · · ·Do you recognize this document?
16· · · · A.· · ·Yes, I do.
17· · · · Q.· · ·And what does "LOI" stand for?
18· · · · A.· · ·Letter of intent.
19· · · · Q.· · ·Okay.· And you say in the -- in the
20· ·first paragraph, "The purpose of this email is
21· ·that Liberty Health Sciences is interested in the
22· ·100 percent acquisition of Fiorello
23· ·Pharmaceuticals," correct?
24· · · · A.· · ·Uh-huh.
25· · · · Q.· · ·And so you were making an offer to
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·2· ·that Mr. Vicente had suggested $26.5 million as a
·3· ·market value.
·4· · · · · · · ·Had you had any --
·5· · · · A.· · ·That's correct.
·6· · · · Q.· · ·-- conversations with Sirota or Yoss
·7· ·about the price that they would be willing to
·8· ·accept?
·9· · · · A.· · ·Not that I recall.
10· · · · Q.· · ·So it's your testimony you came up with
11· ·the $27.5 million price without having any idea
12· ·from them what they were interested in receiving?
13· · · · A.· · ·I would probably say that Rene and I
14· ·came up on that valuation based on what we thought
15· ·was best fit, but we -- we don't make valuations
16· ·based on what other parties recommend to us.
17· · · · · · · ·We -- we make it based on what we think
18· ·is best fit for our business.
19· · · · Q.· · ·Did you think the $27.5 million offer
20· ·was likely to be successful?
21· · · · A.· · ·I don't know.· It obviously wasn't
22· ·based on the response.
23· · · · Q.· · ·Mr. Scorsis, I'd like you to take a
24· ·look at what's already been marked as Gulliver
25· ·Exhibit 12, which is Exhibit 15 in your binder, an
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·2· ·is -- is improper in this setting.
·3· · · · Q.· · ·If you don't remember, you don't
·4· ·remember.
·5· · · · A.· · ·I don't remember.
·6· · · · Q.· · ·Okay.· Had you had any conversations by
·7· ·this time with Sirota or Yoss about the price that
·8· ·they were looking for for Fiorello?
·9· · · · A.· · ·I -- I don't recall.
10· · · · Q.· · ·In informing your board what price was
11· ·likely to be successful at acquiring Fiorello, you
12· ·would want to know something about what the owners
13· ·of Fiorello expected; isn't that right?
14· · · · A.· · ·No, that's not necessarily the case.
15· ·Me making an assumption of something would have
16· ·been successful doesn't mean it always was.
17· · · · · · · ·I've seen licenses go for two times,
18· ·three times the valuations of market incidences.
19· ·I've also seen them go for below because of
20· ·desperate activity.· The market was so dynamic.
21· · · · · · · ·Using a $26 million positioning
22· ·statement by an attorney several months earlier
23· ·would have been a better benchmark for me to
24· ·understand by putting a million and a half more
25· ·juice on something that it would have been
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·2· ·successful.
·3· · · · Q.· · ·Mr. Scorsis, do you recall receiving a
·4· ·response to the letter of intent offer that you
·5· ·sent to Fiorello?
·6· · · · A.· · ·I don't recall, but I did see a
·7· ·response in one of these tabs.· If -- if you could
·8· ·just refresh my memory which tab it was.
·9· · · · Q.· · ·Sure.· It's Tab 16 for you, Gulliver
10· ·Exhibit 13.
11· · · · A.· · ·Yes.· I do see it.
12· · · · Q.· · ·And for the record, this is an email
13· ·from Mr. Sirota to Mr. Scorsis, copying Susan
14· ·Yoss.· "George, just want to confirm that we have
15· ·received the LOI that you sent to the Fiorello
16· ·Board on March 3rd.· Given our fiduciary
17· ·responsibilities to the shareholders of Fiorello,
18· ·we have reviewed the LOI with our board.· However,
19· ·based on the current terms of the LOI, the Board
20· ·is unable to entertain the current offer until at
21· ·least March 30th."
22· · · · A.· · ·Uh-huh.
23· · · · Q.· · ·What did you understand from the email
24· ·that you received from Mr. Sirota?
25· · · · A.· · ·What did I understand?· To me, that
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·2· ·Mr. Sirota's email on March 6th indicating that
·3· ·they would not be able to consider your offer
·4· ·until at least March 30th, do you recall that as
·5· ·being inconsistent -- the specific recollection of
·6· ·that being inconsistent with anything that you
·7· ·discussed with them previously?
·8· · · · · · · MR. ASCHER:· Same objection.
·9· ·BY THE WITNESS:
10· · · · A.· · ·I think previously you stated if it was
11· ·inconsistent with my meeting that I had with them.
12· ·I'll answer that question if that's what you're
13· ·asking.
14· · · · · · · ·I can't say that it was inconsistent
15· ·only based on -- I don't recall us having a
16· ·dialogue about a -- a M&A activity and them
17· ·specifically telling me that they can't speak to a
18· ·certain point; whereas, in the email, it
19· ·specifically states that.
20· · · · · · · ·So is there an inconsistency?· It would
21· ·warrant that there's an inconsistency because
22· ·there's no recollection of a previous meeting, but
23· ·there is a complete -- there's this email that I
24· ·did receive.
25· · · · · · · ·Hopefully, that's -- did you understand
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·2· ·seriously, wouldn't you?
·3· · · · A.· · ·Yes.
·4· · · · · · · MR. ASCHER:· Object to the form.
·5· ·BY THE WITNESS:
·6· · · · A.· · ·I think so.
·7· ·BY MS. IZOWER-FADDE:
·8· · · · Q.· · ·Mr. Scorsis, do you recall testifying
·9· ·about an email -- or, actually, a text where you
10· ·used the word "unsolicited"?
11· · · · A.· · ·Uh-huh.
12· · · · Q.· · ·I'm sorry.· "Uh-huh" doesn't translate
13· ·very well on the record.· Is that a "yes"?
14· · · · A.· · ·Do I -- I testified that I did see the
15· ·text.· I -- I don't recall why I used that
16· ·statement.
17· · · · Q.· · ·Would you, in your -- is it how you
18· ·practice business that you would have used the
19· ·word "unsolicited" if it weren't true?
20· · · · · · · MR. ASCHER:· Objection.
21· ·BY THE WITNESS:
22· · · · A.· · ·Have I used it previously in my life?
23· ·Yes.· Do I use it on a -- on a daily basis? I
24· ·would say no, but I have used it in the past.
25
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·2· ·BY MS. IZOWER-FADDE:
·3· · · · Q.· · ·Do you use it falsely?
·4· · · · A.· · ·No.
·5· · · · · · · MR. ASCHER:· Objection.
·6· ·BY THE WITNESS:
·7· · · · A.· · ·If the question is, do I use it
·8· ·falsely, that is -- no.
·9· ·BY MS. IZOWER-FADDE:
10· · · · Q.· · ·All right.· So if you're saying that
11· ·you're sending an unsolicited offer, it's because
12· ·it's an unsolicited offer.· Isn't that correct?
13· · · · · · · MR. ASCHER:· Objection.
14· ·BY THE WITNESS:
15· · · · A.· · ·I would hope so.
16· ·BY MS. IZOWER-FADDE:
17· · · · Q.· · ·And I know we referenced earlier that
18· ·you had the opportunity to speak with counsel for
19· ·Cresco and with me prior to your deposition.
20· · · · · · · ·And I -- I will -- I appreciated your
21· ·expression that, you know, you were going to be
22· ·honest and that you pride yourself on being honest
23· ·and conducting yourself as an honest businessman.
24· · · · · · · ·And that is true, as you sit here
25· ·today, that that's the way that you -- you try to
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·2· ·BY MS. IZOWER-FADDE:
·3· · · · Q.· · ·Right.· You don't have a specific
·4· ·recollection -- recollection, is that correct?
·5· · · · A.· · ·No.· That's correct.
·6· · · · Q.· · ·All right.· Sorry.· You do not -- yes,
·7· ·that is correct, right?
·8· · · · A.· · ·Yes.
·9· · · · Q.· · ·As you sit here today, do you have a
10· ·specific recollection of ever having a discussion
11· ·with Susan or Eric about the sale or transfer of
12· ·the grower or dispensary license used or owned by
13· ·Fiorello to Liberty prior to April 1st, 2018?
14· · · · · · · MR. ASCHER:· Objection.
15· ·BY THE WITNESS:
16· · · · A.· · ·Similar to my previous state- --
17· ·similar to my previous statement, I can't tell you
18· ·with confidence that I have any recollection of
19· ·that happening prior to that date.
20· ·BY MS. IZOWER-FADDE:
21· · · · Q.· · ·So it's fair to say that you do not
22· ·have a specific recollection; isn't that correct?
23· · · · A.· · ·Yes.
24· · · · · · · MS. IZOWER-FADDE:· Okay.· I have no
25· · · · further questions.
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FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023 EXHIBIT 11 Transcript Excerpts from Deposition of Liberty CEO George Scorsis, Dated October 27, 2020 Index No. 652343/2018 FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023 GEORGE SCORSIS Confidential October 27, 2020 Page 1 · · *** CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER *** ·1 ·2· · · · · ·SUPREME COURT OF THE STATE OF NEW YORK ·3· · · · · · · · · · ·COUNTY OF NEW YORK ·4 ·5· ·CRESCO LABS, NEW YORK, LLC,· · · ·) ·6· ·a New York limited liability· · · ) ·7· ·company,· · · · · · · · · · · · · ) ·8· · · · · · ·Plaintiff,· · · · · · · ) Index ·9· · · · -against-· · · · · · · · · · ) No. 652343/2018 10· ·FIORELLO PHARMACEUTICALS, INC.,· ·) 11· ·a New York corporation; ERIC· · · ) 12· ·SIROTA, an individual; SUSAN YOSS,) 13· ·an individual; and JOHN DOES 1-10,) 14· · · · · · ·Defendants.· · · · · · ·) 15 16· · · · · · · ·The ** CONFIDENTIAL ** remote video 17· ·teleconference deposition of GEORGE SCORSIS, called 18· ·for examination, taken pursuant to the provisions of 19· ·the Code of Civil Procedure and the Rules of the 20· ·Supreme Court of the State of New York pertaining to 21· ·the taking of depositions for the purpose of 22· ·discovery, taken before DINA G. MANCILLAS, a 23· ·Certified Shorthand Reporter within and for the State 24· ·of Illinois, CSR No. 84-3400 of said State, on 25· ·October 27, 2020, at 14:10 UTC. U.S. Legal Support | www.uslegalsupport.com FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023 GEORGE SCORSIS Confidential October 27, 2020 Page 66 ·1· · · · · · · · · · · · ·SCORSIS ·2· ·and Yoss on Thursday, Feb- -- February 22nd? ·3· · · · A.· · ·Yes.· To the best of my recollection, ·4· ·we did meet at a restaurant.· I think you ·5· ·referenced it a day ago, Stephen, the name of it. ·6· ·It sounds actually very close to Fiorello. ·7· · · · · · · ·And we did meet at that restaurant, and ·8· ·I do recall it was not lunch because I -- I recall ·9· ·what we -- I still remember that day.· We were 10· ·running around.· I think it was during the 11· ·Canaccord Genuity event. 12· · · · Q.· · ·And so you were in New York for -- for 13· ·other reasons? 14· · · · A.· · ·That's right. 15· · · · Q.· · ·And how long was your coffee meeting 16· ·with Sirota and Yoss? 17· · · · A.· · ·I can't remember.· It definitely wasn't 18· ·a prolonged lunch, I can -- I know that with 19· ·certainty, but I can't tell you a definitive time 20· ·frame. 21· · · · Q.· · ·And Mr. Gulliver participated in that 22· ·meeting as well, is that correct? 23· · · · A.· · ·Yes, he did. 24· · · · Q.· · ·And what did you talk about at that 25· ·coffee? U.S. Legal Support | www.uslegalsupport.com YVer1f FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023 GEORGE SCORSIS Confidential October 27, 2020 Page 67 ·1· · · · · · · · · · · · ·SCORSIS ·2· · · · A.· · ·This is what I was referencing earlier. ·3· ·From the best of my recollection, what I remember ·4· ·was, there was -- it was -- I recall us talking ·5· ·about more industry-wide dynamics, what's going to ·6· ·happen in the industry, what products will -- will ·7· ·definitely be the products that will be the ·8· ·thriving ones within the medical space because at ·9· ·that point, Liberty was exclusively a medical 10· ·platform. 11· · · · · · · ·And I remember, again, and I -- I can't 12· ·tell you which one of them was a pharmacist, but I 13· ·recall us addressing the -- which -- what product 14· ·innovation would be the one that -- that would 15· ·thrive within the industry because we were -- we 16· ·were using parallels within pharmaceutical and 17· ·cannabis.· That, I do recall, and I remember that 18· ·very, very fondly. 19· · · · · · · ·The discussion beyond that was -- I 20· ·can't really recall. 21· · · · Q.· · ·Did Sirota and Yoss say anything to you 22· ·in this conversation about the possibility of 23· ·being acquired? 24· · · · A.· · ·It would be unfair for me to say that 25· ·they did, based on my memory. U.S. Legal Support | www.uslegalsupport.com YVer1f FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023 GEORGE SCORSIS Confidential October 27, 2020 Page 68 ·1· · · · · · · · · · · · ·SCORSIS ·2· · · · Q.· · ·So you just don't remember one way or ·3· ·the other? ·4· · · · A.· · ·I don't. ·5· · · · Q.· · ·Did they tell you that they had entered ·6· ·into a letter of intent with another company that ·7· ·was interested in acquiring them? ·8· · · · A.· · ·Again, I -- I couldn't tell you ·9· ·specifically if they did at that point in time. 10· ·The only thing I can tell you is that at some 11· ·point, obviously, I was alerted that they can't 12· ·discuss to -- they can't discuss any formal 13· ·discussions. 14· · · · · · · ·And I can't remember if that was via an 15· ·email which I saw in one of those paths, but 16· ·obviously we -- we were aware of it. 17· · · · Q.· · ·But you don't remember learning that in 18· ·this coffee meeting? 19· · · · A.· · ·At this -- at this coffee meeting, no. 20· ·No. 21· · · · Q.· · ·Where they were telling you that they 22· ·had -- they were exclusive -- exclusively talking 23· ·to another company about an acquisition? 24· · · · A.· · ·No. 25· · · · · · · MS. IZOWER-FADDE:· Objection. U.S. Legal Support | www.uslegalsupport.com YVer1f FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023 GEORGE SCORSIS Confidential October 27, 2020 Page 70 ·1· · · · · · · · · · · · ·SCORSIS ·2· ·Exhibit 10.· Do you see that? ·3· · · · A.· · ·Okay.· Yes. ·4· · · · Q.· · ·And it's a little hard to read in my ·5· ·version, but you see on March 2nd, 2018, you send ·6· ·a text to Sirota saying, "We are sending you an ·7· ·unsolicited int hr next 24 hours.· Should I send ·8· ·to the board or to you?" ·9· · · · A.· · ·Uh-huh. 10· · · · Q.· · ·Do you see that? 11· · · · · · · ·Now, am I correct this is a little over 12· ·a week after your February 22nd coffee, correct? 13· · · · A.· · ·Yup.· I would assume so, yes. 14· · · · Q.· · ·And what happened between February 22nd 15· ·and March 2nd to cause you to decide to send them 16· ·an offer? 17· · · · · · · MS. IZOWER-FADDE:· Objection. 18· ·BY THE WITNESS: 19· · · · A.· · ·I don't recall with -- with full 20· ·clarity, Stephen, but I do see here that it looks 21· ·like we did a Massachusetts deal during this same 22· ·period, which, again, may have had bearing on why 23· ·I reengaged them. 24· · · · · · · ·It may have been that I was green lit 25· ·by the board to start expanding outside of U.S. Legal Support | www.uslegalsupport.com YVer1f FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023 GEORGE SCORSIS Confidential October 27, 2020 Page 71 ·1· · · · · · · · · · · · ·SCORSIS ·2· ·Florida. ·3· ·BY MR. ASCHER: ·4· · · · Q.· · ·Well, I'd like your recollection, ·5· ·Mr. Scorsis.· We don't want you to guess.· If you ·6· ·remember -- ·7· · · · A.· · ·Yeah.· I would be guessing, Stephen. I ·8· ·would be guessing, I really would, on what ·9· ·triggered me to actually do that at that point. 10· · · · Q.· · ·All right.· So, for the record, we'll 11· ·move to strike that response. 12· · · · · · · ·Mr. Scorsis, you referred to an 13· ·unsolicited -- before getting to what you meant 14· ·here, do you have an understanding of what the 15· ·word "unsolicited" means in the M&A context? 16· · · · A.· · ·Yes, I do. 17· · · · Q.· · ·And -- and what does it mean? 18· · · · A.· · ·Well, it essentially means that they 19· ·were not -- they were not provoking or stimulating 20· ·me to -- to start putting an offer on the table, 21· ·the other party.· It was under my own mission and 22· ·commission that I did it. 23· · · · Q.· · ·And do you understand that -- that in 24· ·some circumstances could be an out for somebody 25· ·who is in -- under an exclusivity provision or a U.S. Legal Support | www.uslegalsupport.com YVer1f FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023 GEORGE SCORSIS Confidential October 27, 2020 Page 72 ·1· · · · · · · · · · · · ·SCORSIS ·2· ·no-shop provision? ·3· · · · · · · MS. IZOWER-FADDE:· Objection. ·4· ·BY THE WITNESS: ·5· · · · A.· · ·Do I -- do I under -- ·6· ·BY MR. ASCHER: ·7· · · · Q.· · ·Let's go on.· Let me ask a better ·8· ·question. ·9· · · · A.· · ·Okay. 10· · · · Q.· · ·Do you understand what a no-shop 11· ·provision is? 12· · · · A.· · ·Yes, I do.· That means I can't talk to 13· ·any other party while they're binded with an 14· ·agreement or at least with regards to M&A activity 15· ·depending on the scope of the no-shop. 16· · · · Q.· · ·And so how does an unsolicited -- 17· ·what's the relationship between an unsolicited 18· ·offer and an exclusivity or a no-shop provision? 19· · · · · · · MS. IZOWER-FADDE:· Objection. 20· ·BY THE WITNESS: 21· · · · A.· · ·Stephen, I think what you're asking -- 22· ·and, please, I don't want to alter your 23· ·question -- is -- is, was there a request from 24· ·them to me to make us make an offer? 25· · · · · · · ·And at this point, I can't recall them U.S. Legal Support | www.uslegalsupport.com YVer1f FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023 GEORGE SCORSIS Confidential October 27, 2020 Page 73 ·1· · · · · · · · · · · · ·SCORSIS ·2· ·saying, hey, send something over to force a hand ·3· ·or anything along those lines.· I cannot recall ·4· ·that. ·5· ·BY MR. ASCHER: ·6· · · · Q.· · ·So my question, Mr. Scorsis, is whether ·7· ·you understand that in some circumstances a ·8· ·company that is subject to a no-shop provision, ·9· ·they may -- there may be an exception to allow 10· ·them to permit -- to receive an unsolicited offer. 11· · · · · · · ·Do you understand that? 12· · · · · · · MS. IZOWER-FADDE:· Objection. 13· ·BY THE WITNESS: 14· · · · A.· · ·Depend -- dependent on the agreement. 15· ·BY MR. ASCHER: 16· · · · Q.· · ·And so my question, Mr. Scorsis, is 17· ·whether seeing your words here that you were 18· ·describing your offer as unsolicited, does that 19· ·refresh your recollection that you knew at the 20· ·time that Fiorello was subject to a no-shop 21· ·provision in an agreement with another potential 22· ·acquirer? 23· · · · A.· · ·No. 24· · · · Q.· · ·Why did you use the word "unsolicited" 25· ·to describe your offer on February -- on U.S. Legal Support | www.uslegalsupport.com YVer1f FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023 GEORGE SCORSIS Confidential October 27, 2020 Page 74 ·1· · · · · · · · · · · · ·SCORSIS ·2· ·March 2nd? ·3· · · · A.· · ·I don't recall. ·4· · · · Q.· · ·Am I correct, Mr. Scorsis, that you ·5· ·did, in fact, send an offer to Sirota and Yoss ·6· ·shortly after this text? ·7· · · · A.· · ·I did see it in one of the texts. ·8· ·That's correct. ·9· · · · Q.· · ·And why don't I direct your attention 10· ·to what's been already marked as Gulliver 11· ·Exhibit 11, which is your Tab 14, which is an 12· ·email from you to Susan Yoss, Eric Sirota, dated 13· ·March 3rd, 2018.· "Subject:· Liberty Health 14· ·Sciences LOI to Fiorello Board of Directors." 15· · · · · · · ·Do you recognize this document? 16· · · · A.· · ·Yes, I do. 17· · · · Q.· · ·And what does "LOI" stand for? 18· · · · A.· · ·Letter of intent. 19· · · · Q.· · ·Okay.· And you say in the -- in the 20· ·first paragraph, "The purpose of this email is 21· ·that Liberty Health Sciences is interested in the 22· ·100 percent acquisition of Fiorello 23· ·Pharmaceuticals," correct? 24· · · · A.· · ·Uh-huh. 25· · · · Q.· · ·And so you were making an offer to U.S. Legal Support | www.uslegalsupport.com YVer1f FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023 GEORGE SCORSIS Confidential October 27, 2020 Page 77 ·1· · · · · · · · · · · · ·SCORSIS ·2· ·that Mr. Vicente had suggested $26.5 million as a ·3· ·market value. ·4· · · · · · · ·Had you had any -- ·5· · · · A.· · ·That's correct. ·6· · · · Q.· · ·-- conversations with Sirota or Yoss ·7· ·about the price that they would be willing to ·8· ·accept? ·9· · · · A.· · ·Not that I recall. 10· · · · Q.· · ·So it's your testimony you came up with 11· ·the $27.5 million price without having any idea 12· ·from them what they were interested in receiving? 13· · · · A.· · ·I would probably say that Rene and I 14· ·came up on that valuation based on what we thought 15· ·was best fit, but we -- we don't make valuations 16· ·based on what other parties recommend to us. 17· · · · · · · ·We -- we make it based on what we think 18· ·is best fit for our business. 19· · · · Q.· · ·Did you think the $27.5 million offer 20· ·was likely to be successful? 21· · · · A.· · ·I don't know.· It obviously wasn't 22· ·based on the response. 23· · · · Q.· · ·Mr. Scorsis, I'd like you to take a 24· ·look at what's already been marked as Gulliver 25· ·Exhibit 12, which is Exhibit 15 in your binder, an U.S. Legal Support | www.uslegalsupport.com YVer1f FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023 GEORGE SCORSIS Confidential October 27, 2020 Page 81 ·1· · · · · · · · · · · · ·SCORSIS ·2· ·is -- is improper in this setting. ·3· · · · Q.· · ·If you don't remember, you don't ·4· ·remember. ·5· · · · A.· · ·I don't remember. ·6· · · · Q.· · ·Okay.· Had you had any conversations by ·7· ·this time with Sirota or Yoss about the price that ·8· ·they were looking for for Fiorello? ·9· · · · A.· · ·I -- I don't recall. 10· · · · Q.· · ·In informing your board what price was 11· ·likely to be successful at acquiring Fiorello, you 12· ·would want to know something about what the owners 13· ·of Fiorello expected; isn't that right? 14· · · · A.· · ·No, that's not necessarily the case. 15· ·Me making an assumption of something would have 16· ·been successful doesn't mean it always was. 17· · · · · · · ·I've seen licenses go for two times, 18· ·three times the valuations of market incidences. 19· ·I've also seen them go for below because of 20· ·desperate activity.· The market was so dynamic. 21· · · · · · · ·Using a $26 million positioning 22· ·statement by an attorney several months earlier 23· ·would have been a better benchmark for me to 24· ·understand by putting a million and a half more 25· ·juice on something that it would have been U.S. Legal Support | www.uslegalsupport.com YVer1f FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023 GEORGE SCORSIS Confidential October 27, 2020 Page 82 ·1· · · · · · · · · · · · ·SCORSIS ·2· ·successful. ·3· · · · Q.· · ·Mr. Scorsis, do you recall receiving a ·4· ·response to the letter of intent offer that you ·5· ·sent to Fiorello? ·6· · · · A.· · ·I don't recall, but I did see a ·7· ·response in one of these tabs.· If -- if you could ·8· ·just refresh my memory which tab it was. ·9· · · · Q.· · ·Sure.· It's Tab 16 for you, Gulliver 10· ·Exhibit 13. 11· · · · A.· · ·Yes.· I do see it. 12· · · · Q.· · ·And for the record, this is an email 13· ·from Mr. Sirota to Mr. Scorsis, copying Susan 14· ·Yoss.· "George, just want to confirm that we have 15· ·received the LOI that you sent to the Fiorello 16· ·Board on March 3rd.· Given our fiduciary 17· ·responsibilities to the shareholders of Fiorello, 18· ·we have reviewed the LOI with our board.· However, 19· ·based on the current terms of the LOI, the Board 20· ·is unable to entertain the current offer until at 21· ·least March 30th." 22· · · · A.· · ·Uh-huh. 23· · · · Q.· · ·What did you understand from the email 24· ·that you received from Mr. Sirota? 25· · · · A.· · ·What did I understand?· To me, that U.S. Legal Support | www.uslegalsupport.com YVer1f FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023 GEORGE SCORSIS Confidential October 27, 2020 Page 111 ·1· · · · · · · · · · · · ·SCORSIS ·2· ·Mr. Sirota's email on March 6th indicating that ·3· ·they would not be able to consider your offer ·4· ·until at least March 30th, do you recall that as ·5· ·being inconsistent -- the specific recollection of ·6· ·that being inconsistent with anything that you ·7· ·discussed with them previously? ·8· · · · · · · MR. ASCHER:· Same objection. ·9· ·BY THE WITNESS: 10· · · · A.· · ·I think previously you stated if it was 11· ·inconsistent with my meeting that I had with them. 12· ·I'll answer that question if that's what you're 13· ·asking. 14· · · · · · · ·I can't say that it was inconsistent 15· ·only based on -- I don't recall us having a 16· ·dialogue about a -- a M&A activity and them 17· ·specifically telling me that they can't speak to a 18· ·certain point; whereas, in the email, it 19· ·specifically states that. 20· · · · · · · ·So is there an inconsistency?· It would 21· ·warrant that there's an inconsistency because 22· ·there's no recollection of a previous meeting, but 23· ·there is a complete -- there's this email that I 24· ·did receive. 25· · · · · · · ·Hopefully, that's -- did you understand U.S. Legal Support | www.uslegalsupport.com YVer1f FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023 GEORGE SCORSIS Confidential October 27, 2020 Page 125 ·1· · · · · · · · · · · · ·SCORSIS ·2· ·seriously, wouldn't you? ·3· · · · A.· · ·Yes. ·4· · · · · · · MR. ASCHER:· Object to the form. ·5· ·BY THE WITNESS: ·6· · · · A.· · ·I think so. ·7· ·BY MS. IZOWER-FADDE: ·8· · · · Q.· · ·Mr. Scorsis, do you recall testifying ·9· ·about an email -- or, actually, a text where you 10· ·used the word "unsolicited"? 11· · · · A.· · ·Uh-huh. 12· · · · Q.· · ·I'm sorry.· "Uh-huh" doesn't translate 13· ·very well on the record.· Is that a "yes"? 14· · · · A.· · ·Do I -- I testified that I did see the 15· ·text.· I -- I don't recall why I used that 16· ·statement. 17· · · · Q.· · ·Would you, in your -- is it how you 18· ·practice business that you would have used the 19· ·word "unsolicited" if it weren't true? 20· · · · · · · MR. ASCHER:· Objection. 21· ·BY THE WITNESS: 22· · · · A.· · ·Have I used it previously in my life? 23· ·Yes.· Do I use it on a -- on a daily basis? I 24· ·would say no, but I have used it in the past. 25 U.S. Legal Support | www.uslegalsupport.com YVer1f FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023 GEORGE SCORSIS Confidential October 27, 2020 Page 126 ·1· · · · · · · · · · · · ·SCORSIS ·2· ·BY MS. IZOWER-FADDE: ·3· · · · Q.· · ·Do you use it falsely? ·4· · · · A.· · ·No. ·5· · · · · · · MR. ASCHER:· Objection. ·6· ·BY THE WITNESS: ·7· · · · A.· · ·If the question is, do I use it ·8· ·falsely, that is -- no. ·9· ·BY MS. IZOWER-FADDE: 10· · · · Q.· · ·All right.· So if you're saying that 11· ·you're sending an unsolicited offer, it's because 12· ·it's an unsolicited offer.· Isn't that correct? 13· · · · · · · MR. ASCHER:· Objection. 14· ·BY THE WITNESS: 15· · · · A.· · ·I would hope so. 16· ·BY MS. IZOWER-FADDE: 17· · · · Q.· · ·And I know we referenced earlier that 18· ·you had the opportunity to speak with counsel for 19· ·Cresco and with me prior to your deposition. 20· · · · · · · ·And I -- I will -- I appreciated your 21· ·expression that, you know, you were going to be 22· ·honest and that you pride yourself on being honest 23· ·and conducting yourself as an honest businessman. 24· · · · · · · ·And that is true, as you sit here 25· ·today, that that's the way that you -- you try to U.S. Legal Support | www.uslegalsupport.com YVer1f FILED: NEW YORK COUNTY CLERK 02/01/2023 07:50 PM INDEX NO. 652343/2018 NYSCEF DOC. NO. 756 RECEIVED NYSCEF: 02/01/2023 GEORGE SCORSIS Confidential October 27, 2020 Page 130 ·1· · · · · · · · · · · · ·SCORSIS ·2· ·BY MS. IZOWER-FADDE: ·3· · · · Q.· · ·Right.· You don't have a specific ·4· ·recollection -- recollection, is that correct? ·5· · · · A.· · ·No.· That's correct. ·6· · · · Q.· · ·All right.· Sorry.· You do not -- yes, ·7· ·that is correct, right? ·8· · · · A.· · ·Yes. ·9· · · · Q.· · ·As you sit here today, do you have a 10· ·specific recollection of ever having a discussion 11· ·with Susan or Eric about the sale or transfer of 12· ·the grower or dispensary license used or owned by 13· ·Fiorello to Liberty prior to April 1st, 2018? 14· · · · · · · MR. ASCHER:· Objection. 15· ·BY THE WITNESS: 16· · · · A.· · ·Similar to my previous state- -- 17· ·similar to my previous statement, I can't tell you 18· ·with confidence that I have any recollection of 19· ·that happening prior to that date. 20· ·BY MS. IZOWER-FADDE: 21· · · · Q.· · ·So it's fair to say that you do not 22· ·have a specific recollection; isn't that correct? 23· · · · A.· · ·Yes. 24· · · · · · · MS. IZOWER-FADDE:· Okay.· I have no 25· · · · further questions. U.S. Legal Support | www.uslegalsupport.com YVer1f