Delaware
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001-38594
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82-4310622
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(State or other jurisdiction
of incorporation) |
(Commission
File Number) |
(IRS Employer
Identification No.) |
265 Talbot Street West,
Leamington,
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(Address of principal executive offices)
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(Zip code)
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☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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☐
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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☐
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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☐
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Common Stock, $0.0001 par value per share
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TLRY
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The Nasdaq Global Select Market
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Exhibit Number
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Exhibit Description
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Arrangement Agreement, dated as of April 10, 2023, by and between Tilray Brands, Inc. and HEXO Corp. (incorporated by reference
to Exhibit 10.1 of Tilray’s Current Report on Form 8-K filed with the SEC on April 10, 2023).
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Arrangement Agreement Amendment, dated as of June 1, 2023, by and between Tilray Brands, Inc. and HEXO Corp. (incorporated by
reference to Exhibit 10.2 of Tilray’s Current Report on Form 8-K filed with the SEC on June 2, 2023).
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Second Supplemental Warrant Indenture dated June 22, 2023 among HEXO Corp., Tilray Brands, Inc. and Computershare Trust Company
of Canada.
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First Supplemental Warrant Indenture dated September 1 2021 among 48North Cannabis Corp., HEXO Corp. and Computershare Trust
Company of Canada (incorporated by reference to Exhibit 99.1 of HEXO’s Current Report on Form 6-K filed with the SEC on September 9, 2021).
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Warrant Indenture dated April 2, 2019 between 48North Cannabis Corp. and Computershare Trust Company of Canada (incorporated by
reference to Exhibit 99.1 of HEXO’s Current Report on Form 6-K filed with the SEC on September 9, 2021).
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Third Supplemental Warrant Indenture dated June 22, 2023 among HEXO Corp., Tilray Brands, Inc. and Computershare Trust Company
of Canada.
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Second Supplemental Warrant Indenture dated October 31, 2022 between HEXO Corp. and Computershare Trust Company of Canada
(incorporated by reference to Exhibit 99.1 of HEXO’s Current Report on Form 6-K filed with the SEC on November 21, 2022).
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Supplemental Warrant Indenture dated June 1, 2021 among Zenabis Global Inc., HEXO Corp. and Computershare Trust Company of
Canada (incorporated by reference to Exhibit 99.2 of HEXO’s Current Report on Form 6-K filed with the SEC on June 8, 2021).
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Warrant Indenture dated June 25, 2020 between Zenabis Global Inc. and Computershare Trust Company of Canada (incorporated by
reference to Exhibit 99.2 of HEXO’s Current Report on Form 6-K filed with the SEC on June 8, 2021).
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Third Supplemental Warrant Indenture dated June 22, 2023 among HEXO Corp., Tilray Brands, Inc. and Computershare Trust Company
of Canada.
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Second Supplemental Warrant Indenture dated October 31, 2022 between HEXO Corp. and Computershare Trust Company of Canada
(incorporated by reference to Exhibit 99.2 of HEXO’s Current Report on Form 6-K filed with the SEC on November 21, 2022).
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Supplemental Warrant Indenture dated June 1, 2021 among Zenabis Global Inc., HEXO Corp. and Computershare Trust Company of
Canada (incorporated by reference to Exhibit 99.3 of HEXO’s Current Report on Form 6-K filed with the SEC on June 8, 2021).
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Warrant Indenture dated September 23, 2020 between Zenabis Global Inc. and Computershare Trust Company of Canada (incorporated
by reference to Exhibit 99.3 of HEXO’s Current Report on Form 6-K filed with the SEC on June 8, 2021).
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Supplemental Warrant Indenture dated June 22, 2023 among HEXO Corp., Tilray Brands, Inc. and TSX Trust Company.
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Warrant Indenture dated August 24, 2021 between HEXO Corp. and TSX Trust Company (incorporated by reference to Exhibit 99.3 of
HEXO’s Current Report on Form 6-K filed with the SEC on August 26, 2021).
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Supplemental Warrant Indenture dated June 22, 2023 among HEXO Corp., Tilray Brands, Inc. and TSX Trust Company.
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Warrant Indenture dated June 5, 2020 between HEXO Corp. and TSX Trust Company (incorporated by reference to Exhibit 99.4 of
HEXO’s Current Report on Form 6-K filed with the SEC on July 10, 2020).
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Supplemental Warrant Indenture dated June 22, 2023 among HEXO Corp., Tilray Brands, Inc. and TSX Trust Company.
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Warrant Indenture dated May 21, 2020 between HEXO Corp. and TSX Trust Company (incorporated by reference to Exhibit 99.1 of
HEXO’s Current Report on Form 6-K filed with the SEC on May 21, 2020).
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Supplemental Warrant Indenture dated June 22, 2023 among HEXO Corp., Tilray Brands, Inc. and TSX Trust Company.
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Warrant Indenture dated April 13, 2020 between HEXO Corp. and TSX Trust Company (incorporated by reference to Exhibit 99.1 of
HEXO’s Current Report on Form 6-K filed with the SEC on April 13, 2020).
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Opinion of DLA Piper LLP (US).
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Press release dated June 22, 2023.
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104
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Cover Page Interactive Data File (embedded within the Inline XBRL document).
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TILRAY, INC.
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Date: June 22, 2023
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By:
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/s/ Mitchell Gendel
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Name: Mitchell
Gendel
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Title: Global
General Counsel
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Exhibit 4.1
1.1 |
To Be Read With Indenture
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1.2 |
Definitions
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1.3 |
Headings, etc.
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2.1 |
Exchange Basis
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2.2 |
Express Assumption of Rights, Duties and Obligations
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(a) |
Tilray covenants, acknowledges and agrees that, as and from the date hereof, it is bound by the provisions of the Indenture and shall cause HEXO or 48North, as the case may be, to comply with all
covenants and obligations contained in the Indenture to be performed by HEXO or 48North, as the case may be.
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(b) |
Each of 48North, Tilray and HEXO agree to do, execute and deliver all such further acts, instruments and documents as may be necessary to give effect to the transfer, assignment and assumption
herein provided for.
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(c) |
HEXO covenants, acknowledges and agrees to promptly remit to Tilray the Exercise Price per Warrant validly exercised upon receipt of payment thereof (or, alternatively in lieu thereof at Tilray’s
direction, to cause the Exercise Price per Warrant payable upon the valid exercise thereof to be paid or made payable directly to Tilray).
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(d) |
Notwithstanding any of the foregoing, the resignation, discharge, appointment, transfers, assignments and other agreements provided for herein will not be effective unless this Second Supplemental
Warrant Indenture has been executed by all of the parties hereto, whether upon the original instrument, by facsimile or in counterparts, or any combination thereof, and unless all preconditions to such resignation, discharge, appointment,
transfers, assignments and other agreements as may be set forth in the Indenture have been fulfilled.
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(e) |
Notwithstanding anything in the Indenture, 48North, HEXO, Tilray and the Warrant Agent hereby confirm that no Warrants shall be issued following the Arrangement Effective Date without the prior
written consent of Tilray.
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2.3 |
Specific Amendments
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(a) |
The following recital of the Indenture is hereby deleted in its entirety:
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(b) |
Section 1.1 of the Indenture is amended by:
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(1) |
Adding the following definition of “Arrangement Effective Date”: “Arrangement Effective
Date” means June 22, 2023.
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(2) |
Deleting the definition of “Common Shares” and replacing it with the following:
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(3) |
Deleting the definition of “Exercise Price” and replacing it with the following:
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(4) |
Adding the following definition of “Plan of Arrangement”:
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(5) |
Adding the following definition of “Tilray”:
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(6) |
Adding the following definition of “Tilray’s Transfer Agent”:
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(7) |
Deleting the definition of “Warrants” and replacing it with the following:
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(d) |
Section 2.2(1) of the Indenture is deleted and replaced with the following:
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(e) |
Section 2.2(2) of the Indenture is deleted and replaced with the following:
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(f) |
Section 2.2(5) of the Indenture is deleted and replaced with the following:
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(g) |
Section 2.3 of the Indenture is amended so that the references to “the Corporation” therein refer to “the Corporation or Tilray, as the case may be”.
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(h) |
Section 2.9(2) of the Indenture is amended so that the references to “the Corporation” therein refer to “the Corporation or Tilray, as the case may be”.
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(i) |
Section 2.12(3) of the Indenture is deleted and replaced with the following:
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(j) |
Section 3.1 of the Indenture is deleted and replaced with the following:
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(k) |
Section 3.2(4) of the Indenture is deleted and replaced with the following:
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(l) |
Section 3.2(5) of the Indenture is deleted and replaced with the following:
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(m) |
Section 3.2(7) of the Indenture is deleted and replaced with the following:
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(n) |
Section 3.3(3) of the Indenture is deleted and replaced with the following:
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(o) |
Section 3.3(4) of the Indenture is amended so that the references to “the Corporation” therein refer to “Tilray”.
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(p) |
Section 3.4 of the Indenture is deleted and replaced with the following:
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(q) |
Section 3.7(2) of the Indenture is deleted and replaced with the following:
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(r) |
Section 3.10 of the Indenture is amended so that the reference to “the Corporation” therein refer to “Tilray”.
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(s) |
Section 4.1(a) of the Indenture is amended so that the references to “the Corporation” therein refer to “Tilray”.
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(t) |
Section 4.1(b) of the Indenture is amended so that the references to “the Corporation” therein refer to “Tilray”.
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(u) |
Section 4.1(c) of the Indenture is amended so that the references to “the Corporation” therein refer to “Tilray”.
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(v) |
Section 4.1(d) of the indenture is amended so that (1) the references to “the Corporation” therein (other than references to “the Corporation” for those phrases excepted in subparagraph (2) of
this subsection) shall refer to “Tilray”, and (2) notwithstanding the foregoing subparagraph (1) of this subsection, (i) the reference to “the Corporation, its successor, or such purchasing body corporate” therein shall refer to “the
Corporation, Tilray, their respective successors, or such purchasing body corporate”, (ii) the reference to “the Corporation and the Warrant Agent” therein shall refer to “the Corporation, Tilray and the Warrant Agent”, and (iii) the reference
to “the Corporation, any successor to the Corporation or such purchasing body corporate” therein shall refer to “the Corporation, Tilray, any successor to the Corporation or Tilray, or such purchasing body corporate”.
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(w) |
Section 4.1(e) of the Indenture is amended so that the references to “the Corporation” therein refer to “Tilray”.
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(x) |
Section 4.3 of the Indenture is amended so that the references to “the Corporation” therein refer to “the Corporation or Tilray, as the case may be”.
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(y) |
Section 4.4 of the Indenture is amended so that the first and second references to “the Corporation” therein shall refer to “the Corporation and Tilray” and the third reference to “the
Corporation, the Warrant Agent, all holders and all other persons” therein shall refer to “the Corporation, Tilray, the Warrant Agent, all holders and all other persons”.
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(z) |
Section 4.5 of the Indenture is amended so that the references to “the Corporation” therein refer to “Tilray”.
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(aa) |
Section 4.6 of the Indenture is amended so that the references to “the Corporation” therein refer to “the Corporation or Tilray, as the case may be”.
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(bb) |
Section 4.7 of the Indenture is amended so that the references to “the Corporation” therein refer to “the Corporation or Tilray, as the case may be”.
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(cc) |
Section 4.8 of the Indenture is amended so that the references to “the Corporation” therein refer to “Tilray”.
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(dd) |
Section 4.9 of the Indenture is amended so that the references to “the Corporation” therein refer to “Tilray”.
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(ee) |
Section 4.10 of the Indenture is amended so that references to “the Corporation” therein refer to “the Corporation or Tilray, as the case may be”.
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(ff) |
Section 5.2 of the Indenture is amended so that the references to “the Corporation” therein refer to “the Corporation or Tilray, as applicable”.
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(gg) |
Section 5.4 of the Indenture is amended so that the references to “the Corporation” therein refer to “the Corporation and Tilray, as applicable”.
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(hh) |
Section 5.5 of the Indenture is amended so that the last reference to “the Corporation” therein refers to “Tilray”.
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(ii) |
Section 5.6 of the Indenture is amended so that the references to “the Corporation” therein refer to “the Corporation and Tilray, as applicable”.
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(jj) |
Section 6.2 of the Indenture is amended so that the references to “the Corporation” therein refer to “the Corporation and Tilray”.
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(kk) |
Section 6.3 of the Indenture is amended so that the references to “the Corporation” therein refer to “the Corporation and Tilray”.
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(ll) |
Section 8.1 of the Indenture is amended so that the references to “the Corporation” therein refer to “the Corporation or Tilray, as the case may be”.
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(mm) |
Section 8.2 of the Indenture is amended so that the references to “the Corporation” therein refer to “the Corporation or Tilray, as the case may be”.
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(nn) |
Section 9.1 of the indenture is amended so that the reference to “The Corporation and the Warrant Agent” therein shall refer to “The Corporation, Tilray and the Warrant Agent”.
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(oo) |
Section 9.3 of the Indenture is amended so that the references to “the Corporation” therein refer to “the Corporation or Tilray, as applicable”.
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(pp) |
Section 9.7 of the Indenture is amended so that the references to “the Corporation” therein refer to “the Corporation and Tilray”.
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(qq) |
Section 10.1(1) of the Indenture is amended so that the references to “the Corporation” therein refer to “the Corporation or Tilray, as applicable”.
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(rr) |
Section 10.1(1)(a) of the Indenture is deleted and replaced with the following:
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2.4 |
Form of Warrant
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3.1 |
Acceptance of Trust
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3.2 |
Confirmation of Indenture
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3.3 |
Governing Law
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3.4 |
Counterparts
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48NORTH CANNABIS CORP.
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By:
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/s/ Joelle Maurais
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Name:
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Joelle Maurais
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Title:
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President
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I have authority to bind the company
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TILRAY BRANDS, INC.
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By:
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/s/ Mitchell Gendel
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Name:
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Mitchell Gendel
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Title:
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Global General Counsel
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I have authority to bind the company
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HEXO CORP.
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By:
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/s/ Rob Godfrey
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Name:
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Rob Godfrey
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Title:
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Director
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I have authority to bind the company
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COMPUTERSHARE TRUST COMPANY OF CANADA
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By:
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/s/ Brian Howarth
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Name:
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Brian Howarth
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Title:
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Manager, Corporate Trust
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I have authority to bind the company
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By:
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/s/ Alan Zhang
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Name:
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Alan Zhang
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Title:
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Associate Trust Officer
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I have authority to bind the company
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Warrant Certificate No. [☐]
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Certificate for Warrants, each entitling the holder thereof to acquire, post-
Arrangement, 0.00073549 of a share of common stock in the capital of Tilray Brands, Inc. (subject to adjustment as provided for in the Warrant Indenture (as defined below))
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CUSIP [✁✁✁]
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ISIN [✁✁✁]
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(a) |
duly completing and executing the exercise form (the “Exercise Form”) attached hereto; and
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(b) |
surrendering this warrant certificate (the “Warrant Certificate”), with the Exercise Form to the Warrant Agent at the principal office of
the Warrant Agent, in the City of Vancouver or the City of Toronto, together with a certified cheque, bank draft or money order in the lawful money of Canada payable to or to the order of the Corporation in an amount equal to the purchase price
of the Common Shares so subscribed for.
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48NORTH CANNABIS CORP.
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By:
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Authorized Signatory
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Countersigned and Registered by
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COMPUTERSHARE TRUST COMPANY OF CANADA
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By:
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Authorized Signatory
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By:
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Authorized Signatory
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Exhibit 4.4
TILRAY BRANDS, INC.
and
HEXO CORP.
and
COMPUTERSHARE TRUST COMPANY OF CANADA
THIRD SUPPLEMENTAL WARRANT INDENTURE
Supplementing the Warrant Indenture Dated as of June 25, 2020
June 22, 2023
THIRD SUPPLEMENTAL WARRANT INDENTURE
THIS THIRD SUPPLEMENTAL WARRANT INDENTURE made as of the 22nd day of June, 2023.
AMONG:
HEXO CORP., a corporation existing under the laws of the Province of Ontario
("HEXO")
- and -
TILRAY BRANDS, INC., a corporation existing under the laws of the State of Delaware
(“Tilray”)
- and -
COMPUTERSHARE TRUST COMPANY OF CANADA, a trust company existing under the laws of Canada
(the “Warrant Agent”)
WHEREAS Zenabis Global Inc. (“Zenabis”) entered into a warrant indenture dated as of June 25, 2020 (as amended by the First Supplemental Indenture and Second Supplemental Indenture, the “Indenture”) with the Warrant Agent providing for the issue of up to 181,290,456 common share purchase warrants (the “Zenabis Warrants”) with each whole Zenabis Warrant exercisable to acquire one common share of Zenabis (each, a “Zenabis Share”) at an exercise price of C$0.16 per Zenabis Share at any time prior to 5:00 p.m. (Toronto time) on June 25, 2025;
AND WHEREAS effective June 1, 2021, the Warrant Agent and HEXO Corp. (“HEXO”) entered into a supplemental indenture setting forth the adjustments to the Indenture required as a result of the Plan of Arrangement whereby HEXO acquired all of the issued and outstanding Zenabis Shares (the “First Supplemental Indenture”);
AND WHEREAS effective October 31, 2022, the Warrant Agent and HEXO entered into a second supplemental indenture to evidence the exchange (the “Warrant Exchange”) of former Zenabis Warrants for common share purchase warrants of HEXO (“HEXO Warrants”) and to give effect to the provisions of the reverse vesting order of the Superior Court of Québec dated October 24, 2022, as amended and restated on October 25, 2022 ordering and approving the Warrant Exchange (the “Second Supplemental Indenture”);
AND WHEREAS effective June 22, 2023 (the “Arrangement Effective Date”), Tilray acquired all of the issued and outstanding HEXO Shares pursuant to a court-ordered and approved statutory plan of arrangement under the Business Corporations Act (Ontario) (the “Plan of Arrangement”), pursuant to which the holders of HEXO Shares received 0.4352 of a share in the common stock of Tilray (each, a “Tilray Share”) for each HEXO Share held (the “Tilray Share Consideration”), subject to and in accordance with the Plan of Arrangement;
AND WHEREAS the Plan of Arrangement constituted a capital reorganization pursuant to the provisions of the Indenture such that, following the Arrangement Effective Date, the HEXO Warrants not previously exercised remained outstanding securities of HEXO, but the Warrantholders became entitled, upon exercise of each HEXO Warrant, to receive in lieu of each HEXO Share to which such holder was previously entitled upon exercise, the Tilray Share Consideration;
NOW THEREFORE THIS THIRD SUPPLEMENTAL WARRANT INDENTURE WITNESSES that for good and valuable consideration mutually given and received, the receipt and sufficiency of which are hereby acknowledged, it is hereby covenanted, agreed and declared as follows:
ARTICLE 1
INTERPRETATION
1.1 | To Be Read With Indenture |
This Third Supplemental Warrant Indenture is supplemental to the Indenture and the Indenture shall henceforth be read in conjunction with this Third Supplemental Warrant Indenture and all provisions of the Indenture, except only insofar as the same may be inconsistent with the express provisions hereof, shall apply and have the same effect as if all the provisions of the Indenture and of this Third Supplemental Warrant Indenture were contained in one instrument. Except as specifically amended by this Third Supplemental Warrant Indenture, all other terms and conditions of the Indenture shall remain in full force and unchanged.
On and after the date hereof, each reference to the Indenture, as amended by this Third Supplemental Warrant Indenture, “this Third Supplemental Warrant Indenture”, “this Indenture”, “herein”, “hereby”, and similar references, and each reference to the Indenture in any other agreement, certificate, document or instrument relating thereto, shall mean and refer to the Indenture as amended hereby.
1.2 | Definitions |
All terms which are defined in the Indenture and are used but not defined in this Third Supplemental Warrant Indenture shall have the meanings ascribed to them in the Indenture as such meanings may be amended or supplemented by this Third Supplemental Warrant Indenture. In the event of any inconsistency between the meaning given to a term in the Indenture and the meaning given to the same term in this Third Supplemental Warrant Indenture, the meaning given to the term in this Third Supplemental Warrant Indenture shall prevail to the extent of the inconsistency.
1.3 | Headings, etc. |
The division of this Third Supplemental Warrant Indenture into articles, sections, subsections and paragraphs, and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation hereof. Unless the context otherwise requires, “this Third Supplemental Warrant Indenture”, “hereto”, “hereby”, “hereof”, “herein” and similar expressions refer to this Third Supplemental Warrant Indenture and not to any particular article, section, subsection, paragraph or other portion hereof, and include any and every instrument which amends this Third Supplemental Warrant Indenture or is supplemental or ancillary hereto or in implementation hereof.
ARTICLE 2
AMENDMENTS TO INDENTURE
2.1 | Exchange Basis |
Each of HEXO, Tilray and the Warrant Agent hereby acknowledge and agree that, as and from the date hereof, in accordance with the terms of the Indenture and as a result of the Plan of Arrangement, any Warrantholder who exercises that holder's right to receive HEXO Shares pursuant to the Warrant(s) shall be entitled to receive, and shall accept in lieu of the number of HEXO Shares to which such holder was previously entitled upon such exercise and for the same consideration, the Tilray Share Consideration, subject to adjustment in accordance with the terms of the Indenture. Tilray hereby covenants, acknowledges and agrees that, as and from the Arrangement Effective Date, Tilray shall make available or cause to be made available the Tilray Shares in accordance with and subject to the terms of the Indenture and this Third Supplemental Warrant Indenture.
2.2 | Express Assumption of Rights, Duties and Obligations |
(a) | Tilray covenants, acknowledges and agrees that, as and from the date hereof, it is bound by the provisions of the Indenture and shall cause HEXO to comply with all covenants and obligations contained in the Indenture to be performed by HEXO. |
(b) | Each of Tilray and HEXO agree to do, execute and deliver all such further acts, instruments and documents as may be necessary to give effect to the transfer, assignment and assumption herein provided for. |
(c) | HEXO covenants, acknowledges and agrees to promptly remit to Tilray the Exercise Price per Warrant validly exercised upon receipt of payment thereof (or, alternatively in lieu thereof at Tilray’s direction, to cause the Exercise Price per Warrant validly exercised upon receipt of payment thereof to be made directly to Tilray). |
(d) | Notwithstanding any of the foregoing, the resignation, discharge, appointment, transfers, assignments and other agreements provided for herein will not be effective unless this Third Supplemental Warrant Indenture has been executed by all of the parties hereto, whether upon the original instrument, by facsimile or in counterparts, or any combination thereof, and unless all preconditions to such resignation, discharge, appointment, transfers, assignments and other agreements as may be set forth in the Indenture have been fulfilled. |
(e) | Notwithstanding anything in the Indenture, HEXO, Tilray and the Warrant Agent hereby confirm that no Warrants shall be issued following the Arrangement Effective Date without the prior written consent of Tilray. |
2.3 | Specific Amendments |
Effective as of the Arrangement Effective Date, the following specific amendments are made to the following provisions of the Indenture:
(a) | The recitals of the Indenture are hereby amended to delete in its entirety the following: |
"AND WHEREAS pursuant to this Indenture, each Warrant shall, subject to adjustment, entitle the holder thereof to acquire one (1) Common Share (each, a "Warrant Share") upon payment of the Exercise Price prior to the Expiry Time upon the terms and conditions herein set forth;"
and to instead replace it with the following:
"AND WHEREAS pursuant to this Indenture, each Warrant shall, subject to adjustment, entitle the holder thereof to acquire 0.0005508391 of a Common Share (each whole Common Share, a "Warrant Share") upon payment of the Exercise Price prior to the Expiry Time upon the terms and conditions herein set forth;"
(b) | Section 1.1 of the Indenture is amended by: |
(1) | Deleting the definition of “Acceleration Right” and replacing it with the following: |
“Acceleration Right” means the right of Tilray Brands, Inc. to accelerate the Expiry Date to a date that is fifteen (15) days following delivery of the Acceleration Notice if, at any time after the Effective Date, the closing sale price of the Common Shares exceeds $580.93 per Common Share for a period of ten (10) consecutive Trading Days on the Exchange.
1 NTD: Previous adjusted exchange ratio of 0.001265714 (following the 14:1 consolidation) multiplied by the Tilray exchange ratio of 0.4352
- 4 -
(2) | Adding the following definition of "Arrangement Effective Date": |
"Arrangement Effective Date" means June 22, 2023.
(3) | Deleting the definition of "Common Shares" and replacing it with the following: |
"Common Shares" means, subject to Article 4, fully paid and non-assessable shares of common stock in the capital of Tilray Brands, Inc. as presently constituted.
(4) | Deleting the definition of "Exercise Price" and replacing it with the following: |
"Exercise Price" at any time means the price at which 0.000550839 of a Warrant Share may be purchased by the exercise of a whole Warrant, which at the Arrangement Effective Date is $0.16, payable in immediately available Canadian funds, subject to adjustment in accordance with the provisions of Section 4.1.
(5) | Adding the following definition of “Plan of Arrangement”: |
“Plan of Arrangement” means the plan of arrangement attached hereto as Exhibit A, as amended, modified or supplemented from time to time in accordance with the terms thereof.
(6) | Adding the following definition of "Tilray": |
"Tilray" means Tilray Brands, Inc., a company existing under the laws of Delaware.
(7) | Adding the following definition of “Tilray’s Transfer Agent”: “Tilray’s Transfer Agent” means Pacific Stock Transfer Company and Odyssey Trust Company. |
(8) | Deleting the definition of "Warrants" and replacing it with the following: |
"Warrants" means the Common Share purchase warrants created by and authorized by and issuable under this Indenture, to be issued and countersigned hereunder as a Warrant Certificate and/or Uncertificated Warrant held through the Book Entry Registration System on a no-certificate issued basis, entitling the holder or holders thereof to purchase up to 99,862 Warrant Shares (subject to adjustment as herein provided) at the Exercise Price prior to the Expiry Time and, where the context so requires, also means the warrants issued and Authenticated hereunder, whether by way of Warrant Certificate or Uncertificated Warrant;
(c) | Section 2.2(1) of the Indenture is deleted and replaced with the following: |
Subject to the applicable conditions for exercise set out in Article 3 having been satisfied and subject to adjustment in accordance with Section 4.1, each whole Warrant shall entitle each Warrantholder thereof, upon exercise at any time after the Issue Date and prior to the Expiry Time, to acquire 0.000550839 of a Warrant Share upon payment of the Exercise Price (being an effective Exercise Price of $290.47 per Common Share).
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(d) | Section 2.2(2) of the Indenture is deleted and replaced with the following: |
No fractional Warrants shall be issued or otherwise provided for hereunder and Warrants may only be exercised in a sufficient number to acquire whole numbers of Warrant Shares. Any fractional Warrant Shares that Tilray may otherwise be required to issue upon exercise of Warrants pursuant to Section 3.1 shall be rounded down to the nearest whole number and no consideration shall be paid for any such fractional Warrant Shares. Any fractional Warrants shall be rounded down to the nearest whole number and no consideration shall be paid for any such fractional Warrant.
(e) | Section 2.2(5) of the Indenture is deleted and replaced with the following: |
If at any time after the Arrangement Effective Date, the closing sale price of the Common Shares exceeds $580.93 per Common Share for a period of ten (10) consecutive Trading Days on the Exchange, the Corporation shall be entitled, at the sole option of the Corporation, to exercise the Acceleration Right by delivering an Acceleration Notice to the Registered Warrantholders and the Warrant Agent. An Acceleration Notice shall be delivered to each Registered Warrantholder in the manner set out in Section 10.2.
(f) | Section 2.3 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as the case may be". |
(g) | Section 2.9(2) of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as the case may be". |
(h) | Section 3.1 of the Indenture is deleted and replaced with the following: |
Subject to the provisions hereof, each Registered Warrantholder may exercise the right conferred on such holder to subscribe for and purchase 0.000550839 of a Warrant Share for each Warrant after the Arrangement Effective Date and prior to the Expiry Time and in accordance with the conditions herein.
(i) | Section 3.2(4) of the Indenture is deleted and replaced with the following: |
A beneficial owner of Uncertificated Warrants evidenced by a security entitlement in respect of Warrants in the Book Entry Registration System who desires to exercise their Warrants must do so by causing a Book Entry Participant to deliver to the Depository on behalf of the entitlement holder, notice of the owner’s intention to exercise Warrants in a manner acceptable to the Depository. Forthwith upon receipt by the Depository of such notice, as well as payment for the aggregate Exercise Price, the Depository shall deliver to the Warrant Agent and Tilray’s Transfer Agent confirmation of its intention to exercise Warrants (a “Confirmation”) in a manner acceptable to the Warrant Agent and Tilray’s Transfer Agent, including by electronic means through a Book Entry Registration System. An electronic exercise of the Warrants initiated by the Book Entry Participant through a Book Entry Registration System, including CDSX, shall constitute a representation to the Corporation, Tilray, Tilray’s Transfer Agent and the Warrant Agent that the beneficial owner at the time of exercise of such Warrants either: (a) (i) is not in the United States, (ii) is not a U.S. Person and is not exercising such Warrants on behalf of a U.S. Person or a person in the United States, and (iii) did not execute or deliver the notice of the owner’s intention to exercise such Warrants in the United States; or (b) the exercise of such Warrant and issuance of the Warrant Shares does not require registration in the United States. If the Book Entry Participant is not able to make or deliver the foregoing representations by initiating the electronic exercise of the Warrants, then such Warrants shall be withdrawn from the Book Entry Registration System by the Book Entry Participant and an individually registered Warrant Certificate shall be issued by the Warrant Agent to such beneficial owner or Book Entry Participant and the exercise procedures set forth in Section 3.2(1) and Section 3.2(2) shall be followed.
(j) | Section 3.2(5) of the Indenture is deleted and replaced with the following: |
Payment representing the aggregate Exercise Price must be provided to the appropriate office of the Book Entry Participant in a manner acceptable to it. A notice in form acceptable to the Book Entry Participant and payment from such beneficial holder should be provided to the Book Entry Participant sufficiently in advance so as to permit the Book Entry Participant to deliver notice and payment to the Depository and for the Depository in turn to deliver notice and payment to the Warrant Agent prior to the Expiry Time. The Depository will initiate the exercise by way of the Confirmation and forward the aggregate Exercise Price electronically to the Warrant Agent and Tilray’s Transfer Agent will execute the exercise by issuing to the Depository through the Book Entry Registration System the Warrant Shares to which the exercising Warrantholder is entitled pursuant to the exercise. Any expense associated with the exercise process will be for the account of the entitlement holder exercising the Warrants or the Book Entry Participant exercising the Warrants on its behalf.
(k) | Section 3.4 of the Indenture is deleted and replaced with the following: |
If any of the Warrant Shares subscribed for are to be issued to a person or persons other than the Registered Warrantholder, the Registered Warrantholder shall execute the form of transfer and will comply with such reasonable requirements as the Warrant Agent may stipulate and will pay to the Corporation or the Warrant Agent on behalf of the Corporation, all applicable transfer or similar taxes and Tilray will not be required to issue or deliver certificates evidencing Warrant Shares unless or until such Warrantholder shall have paid to the Corporation, or the Warrant Agent on behalf of the Corporation, the amount of such tax or shall have established to the satisfaction of the Corporation and the Warrant Agent that such tax has been paid or that no tax is due.
(l) | Section 3.7(2) of the Indenture is deleted and replaced with the following: |
Notwithstanding anything herein contained including any adjustment provided for in Section 4.1, Tilray shall not be required, upon the exercise of any Warrants, to issue fractions of Warrant Shares. Warrants may only be exercised in a sufficient number to acquire whole numbers of Warrant Shares. Any fractional Warrant Shares that Tilray may otherwise be required to issue upon exercise of Warrants pursuant to Section 3.1 shall be rounded down to the nearest whole number and the holder of such Warrants shall not be entitled to any compensation in respect of any fractional Warrant Shares which is not issued.
(m) | Section 4.1(a) of the Indenture is amended so that the references to "the Corporation" therein refer to "Tilray". |
(n) | Section 4.1(b) of the Indenture is amended so that the references to "the Corporation" therein refer to "Tilray". |
(o) | Section 4.1(c) of the Indenture is amended so that the references to "the Corporation" therein refer to "Tilray". |
(p) | Section 4.1(d) of the indenture is amended so that the first four references to "the Corporation" therein refer to "Tilray", the reference to "the Corporation, its successor, or such purchasing body corporate" therein shall refer to "the Corporation, Tilray, its successor, or such purchasing body corporate", the reference to "the Corporation and the Warrant Agent" therein shall refer to "the Corporation, Tilray and the Warrant Agent", and the reference to "the Corporation, any successor to the Corporation or such purchasing body corporate" therein shall refer to "the Corporation, Tilray, any successor to Tilray, or such purchasing body corporate". |
(q) | Section 4.1(e) of the Indenture is amended so that the references to "the Corporation" therein refer to "Tilray". |
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(r) | Section 4.3 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as the case may be". |
(s) | Section 4.4 of the Indenture is amended so that the first reference to "the Corporation" therein shall refer to "the Corporation and Tilray" and the second reference to "the Corporation, the Warrant Agent, all holders and all other persons" therein shall refer to "the Corporation, Tilray, the Warrant Agent, all holders and all other persons". |
(t) | Section 4.5 of the Indenture is amended so that the references to "the Corporation" therein refer to "Tilray". |
(u) | Section 4.6 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as the case may be". |
(v) | Section 4.7 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as the case may be". |
(w) | Section 4.8 of the Indenture is amended so that the references to "the Corporation" therein refer to "Tilray". |
(x) | Section 4.9 of the Indenture is amended so that the references to "the Corporation" therein refer to "Tilray". |
(y) | Section 4.10 of the Indenture is amended so that references to "the Corporation" therein refer to "the Corporation or Tilray, as the case may be". |
(z) | Section 5.2 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as applicable". |
(aa) | Section 5.5 of the Indenture is amended so that the last reference to "the Corporation" therein refers to "Tilray". |
(bb) | Section 5.6 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation and Tilray, as applicable". |
(cc) | Section 6.2 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation and Tilray". |
(dd) | Section 6.3 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation and Tilray". |
(ee) | Section 8.1 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as the case may be". |
(ff) | Section 8.2 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as the case may be". |
(gg) | Section 9.1 of the indenture is amended so that the reference to "The Corporation and the Warrant Agent" therein shall refer to "The Corporation, Tilray and the Warrant Agent". |
(hh) | Section 9.3 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as applicable". |
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(ii) | Section 9.7 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation and Tilray". |
(jj) | Section 10.1(1) of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as applicable". |
(kk) | Section 10.1(1)(a) of the Indenture is deleted and replaced with the following: |
"If to the Corporation or Tilray:
Tilray Brands, Inc.
655 Madison Avenue
19th Floor
New York, New York
10065
Attention: Mitchell Gendel
Email: mitchell.gendel@tilray.com
With a copy (which will not constitute notice) to:
DLA Piper (Canada) LLP
Suite 6000, 1 First Canadian Place
PO Box 367, 100 King Street West
Toronto, ON
M5X 1E2
Attention: Russel Drew
Email: russel.drew@dlapiper.com
If to Tilray’s Transfer Agent:
Pacific Stock Transfer Company
6725 Via Austi Pkwy, Suite 300
Las Vegas, Nevada 89119
Attention: Maria Torres
Email: MTorres@pacificstocktransfer.com
and to:
Odyssey Trust Company
United Kingdom Building
350 – 409 Granville Street
Vancouver BC V6C 1T2
Attention: Paul Keyes
Email: PKeyes@OdysseyTrust.com
ARTICLE 3
MISCELLANEOUS
3.1 | Acceptance of Trust |
The Warrant Agent accepts the trusts in this Third Supplemental Warrant Indenture and agrees to carry out and discharge the same upon the terms and conditions set out in this Third Supplemental Warrant Indenture and in accordance with the Indenture.
3.2 | Confirmation of Indenture |
The Indenture as amended and supplemented by this Third Supplemental Warrant Indenture, is hereby confirmed and approved.
3.3 | Governing Law |
This Third Supplemental Warrant Indenture shall be governed by and be construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein and shall be binding upon the parties hereto and their respective successors and assigns.
3.4 | Counterparts |
This Third Supplemental Warrant Indenture may be executed in counterparts, each of which so executed shall be deemed to be an original, and each of such counterparts when taken together shall constitute one and the same instrument and notwithstanding their date of execution they shall be deemed to be dated as of the date hereof. Delivery of an executed copy of this Third Supplemental Warrant Indenture by electronic facsimile transmission or other means of electronic communication capable of producing a printed copy will be deemed to be execution and delivery of this Indenture as of the date hereof.
[Signature page follows]
IN WITNESS WHEREOF the parties hereto have executed this Third Supplemental Warrant Indenture under the hands of their proper signatories in that behalf.
TILRAY BRANDS, INC. | ||
Per: | /s/ Mitchell Gendel |
|
Name: Mitchell Gendel Title: Global General Counsel |
||
COMPUTERSHARE TRUST COMPANY OF CANADA | ||
Per: | /s/ Brian Howarth |
|
Name: Brian Howarth Title: Manager, Corporate Trust |
||
Per: | /s/ Alan Zhang |
|
Name: Alan Zhang
Title: Associate Trust Officer
|
||
HEXO CORP. | ||
Per: | /s/ Rob Godfrey |
|
Name: Rob Godfrey Title: Director |
Exhibit 4.8
TILRAY BRANDS, INC.
and
HEXO CORP.
and
COMPUTERSHARE TRUST COMPANY OF CANADA
THIRD SUPPLEMENTAL WARRANT INDENTURE
Supplementing the Warrant Indenture Dated as of September 23, 2020
June 22, 2023
THIRD SUPPLEMENTAL WARRANT INDENTURE
THIS THIRD SUPPLEMENTAL WARRANT INDENTURE made as of the 22nd day of June, 2023.
AMONG:
HEXO CORP., a corporation existing under the laws of the Province of Ontario
(“HEXO”)
- and -
TILRAY BRANDS, INC., a corporation existing under the laws of the State of Delaware
(“TILRAY”)
- and -
COMPUTERSHARE TRUST COMPANY OF CANADA, a trust company existing under the laws of Canada
(the “Warrant Agent”)
WHEREAS Zenabis Global Inc. (“Zenabis”) entered into a warrant indenture dated as of September 23, 2020 (as amended by the First Supplemental Indenture and Second Supplemental Indenture, the “Indenture”) with the Warrant Agent providing for the issue of up to 89,317,747 common share purchase warrants (the “Zenabis Warrants”) with each whole Zenabis Warrant exercisable to acquire one common share of Zenabis (each, a “Zenabis Share”) at an exercise price of C$0.10 per Zenabis Share at any time prior to 5:00 p.m. (Toronto time) on September 23, 2025;
AND WHEREAS effective June 1, 2021, the Warrant Agent and HEXO Corp. (“HEXO”) entered into a supplemental indenture setting forth the adjustments to the Indenture required as a result of the Plan of Arrangement whereby HEXO acquired all of the issued and outstanding Zenabis Shares (the “First Supplemental Indenture”);
AND WHEREAS effective October 31, 2022, the Warrant Agent and HEXO entered into a second supplemental indenture to evidence the exchange (the “Warrant Exchange”) of former Zenabis Warrants for common share purchase warrants of HEXO (“HEXO Warrants”) and to give effect to the provisions of the reverse vesting order of the Superior Court of Québec dated October 24, 2022, as amended and restated on October 25, 2022, ordering and approving the Warrant Exchange (the “Second Supplemental Indenture”);
AND WHEREAS effective June 22, 2023 (the “Arrangement Effective Date”), Tilray acquired all of the issued and outstanding HEXO Shares pursuant to a court-ordered and approved statutory plan of arrangement under the Business Corporations Act (Ontario) (the “Plan of Arrangement”), pursuant to which the holders of HEXO Shares received 0.4352 of a share in the common stock of Tilray (each, a “Tilray Share”) for each HEXO Share held (the “Tilray Share Consideration”), subject to and in accordance with the Plan of Arrangement;
AND WHEREAS the Plan of Arrangement constituted a capital reorganization pursuant to the provisions of the Indenture such that, following the Arrangement Effective Date, the HEXO Warrants not previously exercised remained outstanding securities of HEXO, but the Warrantholders became entitled, upon exercise of each HEXO Warrant, to receive in lieu of each HEXO Share to which such holder was previously entitled upon exercise, the Tilray Share Consideration;
NOW THEREFORE THIS THIRD SUPPLEMENTAL WARRANT INDENTURE WITNESSES that for good and valuable consideration mutually given and received, the receipt and sufficiency of which are hereby acknowledged, it is hereby covenanted, agreed and declared as follows:
ARTICLE 1
INTERPRETATION
1.1 | To Be Read With Indenture |
This Third Supplemental Warrant Indenture is supplemental to the Indenture and the Indenture shall henceforth be read in conjunction with this Third Supplemental Warrant Indenture and all provisions of the Indenture, except only insofar as the same may be inconsistent with the express provisions hereof, shall apply and have the same effect as if all the provisions of the Indenture and of this Third Supplemental Warrant Indenture were contained in one instrument. Except as specifically amended by this Third Supplemental Warrant Indenture, all other terms and conditions of the Indenture shall remain in full force and unchanged.
On and after the date hereof, each reference to the Indenture, as amended by this Third Supplemental Warrant Indenture, “this Third Supplemental Warrant Indenture”, “this Indenture”, “herein”, “hereby”, and similar references, and each reference to the Indenture in any other agreement, certificate, document or instrument relating thereto, shall mean and refer to the Indenture as amended hereby.
1.2 | Definitions |
All terms which are defined in the Indenture and are used but not defined in this Third Supplemental Warrant Indenture shall have the meanings ascribed to them in the Indenture as such meanings may be amended or supplemented by this Third Supplemental Warrant Indenture. In the event of any inconsistency between the meaning given to a term in the Indenture and the meaning given to the same term in this Third Supplemental Warrant Indenture, the meaning given to the term in this Third Supplemental Warrant Indenture shall prevail to the extent of the inconsistency.
1.3 | Headings, etc. |
The division of this Third Supplemental Warrant Indenture into articles, sections, subsections and paragraphs, and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation hereof. Unless the context otherwise requires, “this Third Supplemental Warrant Indenture”, “hereto”, “hereby”, “hereof”, “herein” and similar expressions refer to this Third Supplemental Warrant Indenture and not to any particular article, section, subsection, paragraph or other portion hereof, and include any and every instrument which amends this Third Supplemental Warrant Indenture or is supplemental or ancillary hereto or in implementation hereof.
ARTICLE 2
AMENDMENTS TO INDENTURE
2.1 | Exchange Basis |
Each of HEXO, Tilray and the Warrant Agent hereby acknowledge and agree that, as and from the date hereof, in accordance with the terms of the Indenture and as a result of the Plan of Arrangement, any Warrantholder who exercises that holder's right to receive HEXO Shares pursuant to the Warrant(s) shall be entitled to receive, and shall accept in lieu of the number of HEXO Shares to which such holder was previously entitled upon such exercise and for the same consideration, the Tilray Share Consideration, subject to adjustment in accordance with the terms of the Indenture. Tilray hereby covenants, acknowledges and agrees that, as and from the Arrangement Effective Date, Tilray shall make available or cause to be made available the Tilray Shares in accordance with and subject to the terms of the Indenture and this Third Supplemental Warrant Indenture.
2.2 | Express Assumption of Rights, Duties and Obligations |
(a) | Tilray covenants, acknowledges and agrees that, as and from the date hereof, it is bound by the provisions of the Indenture and shall cause HEXO to comply with all covenants and obligations contained in the Indenture to be performed by HEXO. |
(b) | Each of Tilray and HEXO agree to do, execute and deliver all such further acts, instruments and documents as may be necessary to give effect to the transfer, assignment and assumption herein provided for. |
(c) | HEXO covenants, acknowledges and agrees to promptly remit to Tilray the Exercise Price per Warrant validly exercised upon receipt of payment thereof (or, alternatively in lieu thereof at Tilray’s direction, to cause the Exercise Price per Warrant validly exercised upon receipt of payment thereof to be made directly to Tilray). |
(d) | Notwithstanding any of the foregoing, the resignation, discharge, appointment, transfers, assignments and other agreements provided for herein will not be effective unless this Third Supplemental Warrant Indenture has been executed by all of the parties hereto, whether upon the original instrument, by facsimile or in counterparts, or any combination thereof, and unless all preconditions to such resignation, discharge, appointment, transfers, assignments and other agreements as may be set forth in the Indenture have been fulfilled. |
(e) | Notwithstanding anything in the Indenture, HEXO, Tilray and the Warrant Agent hereby confirm that no Warrants shall be issued following the Arrangement Effective Date without the prior written consent of Tilray. |
2.3 | Specific Amendments |
Effective as of the Arrangement Effective Date, the following specific amendments are made to the following provisions of the Indenture:
(a) | The recitals of the Indenture are hereby amended to delete in its entirety the following: |
"AND WHEREAS pursuant to this Indenture, each Warrant shall, subject to adjustment, entitle the holder thereof to acquire one (1) Common Share (each, a "Warrant Share") upon payment of the Exercise Price prior to the Expiry Time upon the terms and conditions herein set forth;"
and to instead replace it with the following:
"AND WHEREAS pursuant to this Indenture, each Warrant shall, subject to adjustment, entitle the holder thereof to acquire 0.0005508391 of a Common Share (each whole Common Share, a "Warrant Share") upon payment of the Exercise Price prior to the Expiry Time upon the terms and conditions herein set forth;"
(b) | Section 1.1 of the Indenture is amended by: |
(1) | Deleting the definition of “Acceleration Right” and replacing it with the following: |
“Acceleration Right” means the right of Tilray Brands, Inc. to accelerate the Expiry Date to a date that is fifteen (15) days following delivery of the Acceleration Notice if, at any time after the Effective Date, the closing sale price of the Common Shares exceeds $363.08 per Common Share for a period of ten (10) consecutive Trading Days on the Exchange.
1 NTD: Previous adjusted exchange ratio of 0.001265714 (following the 14:1 consolidation) multiplied by the Tilray exchange ratio of 0.4352
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(2) |
Adding the following definition of "Arrangement Effective Date":
"Arrangement Effective Date" means June 22, 2023.
|
(3) | Deleting the definition of "Common Shares" and replacing it with the following: |
"Common Shares" means, subject to Article 4, fully paid and non-assessable shares of common stock in the capital of Tilray Brands, Inc. as presently constituted.
(4) | Deleting the definition of "Exercise Price" and replacing it with the following: |
"Exercise Price" at any time means the price at which 0.000550839 of a Warrant Share may be purchased by the exercise of a whole Warrant, which at the Arrangement Effective Date is $0.10, payable in immediately available Canadian funds, subject to adjustment in accordance with the provisions of Section 4.1.
(5) | Adding the following definition of “Plan of Arrangement”: |
“Plan of Arrangement” means the plan of arrangement attached hereto as Exhibit A, as amended, modified or supplemented from time to time in accordance with the terms thereof.
(6) | Adding the following definition of "Tilray": |
"Tilray" means Tilray Brands, Inc., a company existing under the laws of Delaware.
(7) | Adding the following definition of “Tilray’s Transfer Agent”: “Tilray’s Transfer Agent” means Pacific Stock Transfer Company and Odyssey Trust Company. |
(8) | Deleting the definition of "Warrants" and replacing it with the following: |
"Warrants" means the Common Share purchase warrants created by and authorized by and issuable under this Indenture, to be issued and countersigned hereunder as a Warrant Certificate and/or Uncertificated Warrant held through the Book Entry Registration System on a no-certificate issued basis, entitling the holder or holders thereof to purchase up to 49,199 Warrant Shares (subject to adjustment as herein provided) at the Exercise Price prior to the Expiry Time and, where the context so requires, also means the warrants issued and Authenticated hereunder, whether by way of Warrant Certificate or Uncertificated Warrant;
(c) | Section 2.2(1) of the Indenture is deleted and replaced with the following: |
Subject to the applicable conditions for exercise set out in Article 3 having been satisfied and subject to adjustment in accordance with Section 4.1, each whole Warrant shall entitle each Warrantholder thereof, upon exercise at any time after the Issue Date and prior to the Expiry Time, to acquire 0.000550839 of a Warrant Share upon payment of the Exercise Price (being an effective Exercise Price of $181.54 per Common Share).
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(d) | Section 2.2(2) of the Indenture is deleted and replaced with the following: |
No fractional Warrants shall be issued or otherwise provided for hereunder and Warrants may only be exercised in a sufficient number to acquire whole numbers of Warrant Shares. Any fractional Warrant Shares that Tilray may otherwise be required to issue upon exercise of Warrants pursuant to Section 3.1 shall be rounded down to the nearest whole number and no consideration shall be paid for any such fractional Warrant Shares. Any fractional Warrants shall be rounded down to the nearest whole number and no consideration shall be paid for any such fractional Warrant.
(e) | Section 2.2(5) of the Indenture is deleted and replaced with the following: |
If at any time after the Arrangement Effective Date, the closing sale price of the Common Shares exceeds $363.08 per Common Share for a period of ten (10) consecutive Trading Days on the Exchange, the Corporation shall be entitled, at the sole option of the Corporation, to exercise the Acceleration Right by delivering an Acceleration Notice to the Registered Warrantholders and the Warrant Agent. An Acceleration Notice shall be delivered to each Registered Warrantholder in the manner set out in Section 10.2.
(f) | Section 2.3 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as the case may be". |
(g) | Section 2.9(2) of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as the case may be". |
(h) | Section 3.1 of the Indenture is deleted and replaced with the following: |
Subject to the provisions hereof, each Registered Warrantholder may exercise the right conferred on such holder to subscribe for and purchase 0.000550839 of a Warrant Share for each Warrant after the Arrangement Effective Date and prior to the Expiry Time and in accordance with the conditions herein.
(i) | Section 3.2(4) of the Indenture is deleted and replaced with the following: |
A beneficial owner of Uncertificated Warrants evidenced by a security entitlement in respect of Warrants in the Book Entry Registration System who desires to exercise their Warrants must do so by causing a Book Entry Participant to deliver to the Depository on behalf of the entitlement holder, notice of the owner’s intention to exercise Warrants in a manner acceptable to the Depository. Forthwith upon receipt by the Depository of such notice, as well as payment for the aggregate Exercise Price, the Depository shall deliver to the Warrant Agent and Tilray’s Transfer Agent confirmation of its intention to exercise Warrants (a “Confirmation”) in a manner acceptable to the Warrant Agent and Tilray’s Transfer Agent, including by electronic means through a Book Entry Registration System. An electronic exercise of the Warrants initiated by the Book Entry Participant through a Book Entry Registration System, including CDSX, shall constitute a representation to the Corporation, Tilray, Tilray’s Transfer Agent and the Warrant Agent that the beneficial owner at the time of exercise of such Warrants either: (a) (i) is not in the United States, (ii) is not a U.S. Person and is not exercising such Warrants on behalf of a U.S. Person or a person in the United States, and (iii) did not execute or deliver the notice of the owner’s intention to exercise such Warrants in the United States; or (b) the exercise of such Warrant and issuance of the Warrant Shares does not require registration in the United States. If the Book Entry Participant is not able to make or deliver the foregoing representations by initiating the electronic exercise of the Warrants, then such Warrants shall be withdrawn from the Book Entry Registration System by the Book Entry Participant and an individually registered Warrant Certificate shall be issued by the Warrant Agent to such beneficial owner or Book Entry Participant and the exercise procedures set forth in Section 3.2(1) and Section 3.2(2) shall be followed.
(j) | Section 3.2(5) of the Indenture is deleted and replaced with the following: |
Payment representing the aggregate Exercise Price must be provided to the appropriate office of the Book Entry Participant in a manner acceptable to it. A notice in form acceptable to the Book Entry Participant and payment from such beneficial holder should be provided to the Book Entry Participant sufficiently in advance so as to permit the Book Entry Participant to deliver notice and payment to the Depository and for the Depository in turn to deliver notice and payment to the Warrant Agent prior to the Expiry Time. The Depository will initiate the exercise by way of the Confirmation and forward the aggregate Exercise Price electronically to the Warrant Agent and Tilray’s Transfer Agent will execute the exercise by issuing to the Depository through the Book Entry Registration System the Warrant Shares to which the exercising Warrantholder is entitled pursuant to the exercise. Any expense associated with the exercise process will be for the account of the entitlement holder exercising the Warrants or the Book Entry Participant exercising the Warrants on its behalf.
(k) | Section 3.4 of the Indenture is deleted and replaced with the following: |
If any of the Warrant Shares subscribed for are to be issued to a person or persons other than the Registered Warrantholder, the Registered Warrantholder shall execute the form of transfer and will comply with such reasonable requirements as the Warrant Agent may stipulate and will pay to the Corporation or the Warrant Agent on behalf of the Corporation, all applicable transfer or similar taxes and Tilray will not be required to issue or deliver certificates evidencing Warrant Shares unless or until such Warrantholder shall have paid to the Corporation, or the Warrant Agent on behalf of the Corporation, the amount of such tax or shall have established to the satisfaction of the Corporation and the Warrant Agent that such tax has been paid or that no tax is due.
(l) | Section 3.7(2) of the Indenture is deleted and replaced with the following: |
Notwithstanding anything herein contained including any adjustment provided for in Section 4.1, Tilray shall not be required, upon the exercise of any Warrants, to issue fractions of Warrant Shares. Warrants may only be exercised in a sufficient number to acquire whole numbers of Warrant Shares. Any fractional Warrant Shares that Tilray may otherwise be required to issue upon exercise of Warrants pursuant to Section 3.1 shall be rounded down to the nearest whole number and the holder of such Warrants shall not be entitled to any compensation in respect of any fractional Warrant Shares which is not issued.
(m) | Section 4.1(a) of the Indenture is amended so that the references to "the Corporation" therein refer to "Tilray". |
(n) | Section 4.1(b) of the Indenture is amended so that the references to "the Corporation" therein refer to "Tilray". |
(o) | Section 4.1(c) of the Indenture is amended so that the references to "the Corporation" therein refer to "Tilray". |
(p) | Section 4.1(d) of the indenture is amended so that the first four references to "the Corporation" therein refer to "Tilray", the reference to "the Corporation, its successor, or such purchasing body corporate" therein shall refer to "the Corporation, Tilray, its successor, or such purchasing body corporate", the reference to "the Corporation and the Warrant Agent" therein shall refer to "the Corporation, Tilray and the Warrant Agent", and the reference to "the Corporation, any successor to the Corporation or such purchasing body corporate" therein shall refer to "the Corporation, Tilray, any successor to Tilray, or such purchasing body corporate". |
(q) | Section 4.1(e) of the Indenture is amended so that the references to "the Corporation" therein refer to "Tilray". |
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(r) | Section 4.3 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as the case may be". |
(s) | Section 4.4 of the Indenture is amended so that the first reference to "the Corporation" therein shall refer to "the Corporation and Tilray" and the second reference to "the Corporation, the Warrant Agent, all holders and all other persons" therein shall refer to "the Corporation, Tilray, the Warrant Agent, all holders and all other persons". |
(t) | Section 4.5 of the Indenture is amended so that the references to "the Corporation" therein refer to "Tilray". |
(u) | Section 4.6 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as the case may be". |
(v) | Section 4.7 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as the case may be". |
(w) | Section 4.8 of the Indenture is amended so that the references to "the Corporation" therein refer to "Tilray". |
(x) | Section 4.9 of the Indenture is amended so that the references to "the Corporation" therein refer to "Tilray". |
(y) | Section 4.10 of the Indenture is amended so that references to "the Corporation" therein refer to "the Corporation or Tilray, as the case may be". |
(z) | Section 5.2 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as applicable". |
(aa) | Section 5.5 of the Indenture is amended so that the last reference to "the Corporation" therein refers to "Tilray". |
(bb) | Section 5.6 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation and Tilray, as applicable". |
(cc) | Section 6.2 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation and Tilray". |
(dd) | Section 6.3 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation and Tilray". |
(ee) | Section 8.1 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as the case may be". |
(ff) | Section 8.2 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as the case may be". |
(gg) | Section 9.1 of the indenture is amended so that the reference to "The Corporation and the Warrant Agent" therein shall refer to "The Corporation, Tilray and the Warrant Agent". |
(hh) | Section 9.3 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as applicable". |
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(ii) | Section 9.7 of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation and Tilray". |
(jj) | Section 10.1(1) of the Indenture is amended so that the references to "the Corporation" therein refer to "the Corporation or Tilray, as applicable". |
(kk) | Section 10.1(1)(a) of the Indenture is deleted and replaced with the following: "If to the Corporation or Tilray: |
Tilray Brands, Inc.
655 Madison Avenue
19th Floor
New York, New York
10065
Attention: Mitchell Gendel
Email: mitchell.gendel@tilray.com
With a copy (which will not constitute notice) to:
DLA Piper (Canada) LLP
Suite 6000, 1 First Canadian Place
PO Box 367, 100 King Street West
Toronto, ON
M5X 1E2
Attention: Russel Drew
Email: russel.drew@dlapiper.com
If to Tilray’s Transfer Agent:
Pacific Stock Transfer Company
6725 Via Austi Pkwy, Suite 300
Las Vegas, Nevada 89119
Attention: Maria Torres
Email: MTorres@pacificstocktransfer.com
and to:
Odyssey Trust Company
United Kingdom Building
350 – 409 Granville Street
Vancouver BC V6C 1T2
Attention: Paul Keyes
Email: PKeyes@OdysseyTrust.com
ARTICLE 3
MISCELLANEOUS
3.1 | Acceptance of Trust |
The Warrant Agent accepts the trusts in this Third Supplemental Warrant Indenture and agrees to carry out and discharge the same upon the terms and conditions set out in this Third Supplemental Warrant Indenture and in accordance with the Indenture.
3.2 | Confirmation of Indenture |
The Indenture as amended and supplemented by this Third Supplemental Warrant Indenture, is hereby confirmed and approved.
3.3 | Governing Law |
This Third Supplemental Warrant Indenture shall be governed by and be construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein and shall be binding upon the parties hereto and their respective successors and assigns.
3.4 | Counterparts |
This Third Supplemental Warrant Indenture may be executed in counterparts, each of which so executed shall be deemed to be an original, and each of such counterparts when taken together shall constitute one and the same instrument and notwithstanding their date of execution they shall be deemed to be dated as of the date hereof. Delivery of an executed copy of this Third Supplemental Warrant Indenture by electronic facsimile transmission or other means of electronic communication capable of producing a printed copy will be deemed to be execution and delivery of this Indenture as of the date hereof.
[Signature page follows]
IN WITNESS WHEREOF the parties hereto have executed this Third Supplemental Warrant Indenture under the hands of their proper signatories in that behalf.
TILRAY BRANDS, INC. | ||
Per: | /s/ Mitchell Gendel |
|
Name: Mitchell Gendel Title: Global General Counsel |
||
COMPUTERSHARE TRUST COMPANY OF CANADA | ||
Per: | /s/ Brian Howarth |
|
Name: Brian Howarth Title: Manager, Corporate Trust |
||
Per: | /s/ Alan Zhang |
|
Name: Alan Zhang Title: Associate Trust Officer |
||
HEXO CORP. | ||
Per: | /s/ Rob Godfrey |
|
Name: Rob Godfrey Title: Director |
Exhibit 4.12
THIS SUPPLEMENTAL WARRANT INDENTURE is made as of June 22, 2023.
AMONG:
HEXO CORP., a corporation incorporated under the laws of Ontario (hereinafter called “HEXO”),
AND
TILRAY BRANDS, INC., a corporation incorporated under the laws of Delaware (hereinafter called “Tilray”),
AND
TSX TRUST COMPANY, a trust company existing under the laws of Ontario (hereinafter called the “Warrant Agent”)
RECITALS
WHEREAS:
1. | HEXO and the Warrant Agent executed a warrant indenture dated as of August 24, 2021 (the “Warrant Indenture”), a copy of which is included in Schedule “A” hereto, providing for the issue, and governing the terms of, certain common share purchase warrants (the “Warrants”). |
2. | On the date hereof (the “Arrangement Effective Date”), Tilray acquired all of HEXO’s issued and outstanding common shares by way of a plan of arrangement (the “Plan of Arrangement”) under the Business Corporations Act (Ontario) (the “Arrangement”). |
3. | In accordance with Section 5.1 of the Plan of Arrangement, each holder of a Warrant, to the extent such Warrant has not expired by 12:01a.m. (Toronto time) on the Arrangement Effective Date (the “Effective Time”) and the holder of such Warrant has not exercised its rights of acquisition thereunder prior to the Effective Time, shall, upon the exercise of such rights, be entitled to be issued and receive and shall accept, for the same aggregate consideration, upon such exercise, in lieu of the number of common shares in the capital of HEXO (“HEXO Shares”) to which such holder was theretofore entitled upon exercise of such Warrants, the kind and aggregate number of shares of capital stock of Tilray (“Tilray Shares” or “Common Shares”) that such holder would have been entitled to be issued and receive if, immediately prior to the Effective Time, such holder had been the registered holder of the number of HEXO Shares to which such holder was theretofore entitled upon exercise of such Warrants. |
4. | The Plan of Arrangement will trigger an adjustment under Article 4 (and, more specifically, Section 4.1(d)) of the Warrant Indenture, and as such, the Warrant Agent, relying on advice of Counsel, has determined it appropriate to give effect to or evidence the provisions of Section 4.1(d) of the Warrant Indenture by way of this Supplemental Warrant Indenture in order to provide for the application of the provisions of the Warrant Indenture with respect to the rights and interests of the Registered Warrantholders on and after the Arrangement Effective Date, and pursuant to Section 5.2 of the Plan of Arrangement. |
5. | Under Section 8.1 of the Warrant Indenture, subject to the prior approval of the TSX, HEXO and the Warrant Agent may execute and deliver indentures supplemental to the Warrant Indenture setting forth any adjustments resulting from the application of the provisions of Article 4 (Adjustments); |
6. | The foregoing recitals are made as representations of HEXO and Tilray, and not by the Warrant Agent. |
7. | The Warrant Agent has agreed to enter into this Supplemental Warrant Indenture and to hold all rights, interests and benefits contained herein for and on behalf of those persons who are holders of Warrants issued pursuant to the Warrant Indenture as modified by this Supplemental Warrant Indenture from time to time. |
NOW THEREFORE THIS INDENTURE WITNESSES that for good and valuable consideration mutually given and received, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed and declared as follows:
(a) | This Supplemental Warrant Indenture is supplemental to the Warrant Indenture and the Warrant Indenture shall henceforth be read in conjunction with this Supplemental Warrant Indenture and all the provisions of the Warrant Indenture, except only insofar as the same may be inconsistent with the express provisions hereof, shall apply and have the same effect as if all the provisions of the Warrant Indenture and of this Supplemental Warrant Indenture were contained in one instrument and the expressions used herein shall have the same meaning as is ascribed to the corresponding expressions in the Warrant Indenture. |
(b) | On and after the date hereof, each reference to the Warrant Indenture, as amended by this Supplemental Warrant Indenture, “this Warrant Indenture”, “this indenture”, “herein”, “hereby”, and similar references, and each reference to the Warrant Indenture in any other agreement, certificate, document or instrument relating thereto, shall mean and refer to the Warrant Indenture as amended hereby. Except as specifically amended by the Supplemental Warrant Indenture, all other terms and conditions of the Warrant Indenture shall remain in full force and unchanged. |
(c) | All terms which are defined in the Warrant Indenture and are used but not defined in this Supplemental Warrant Indenture shall have the meanings ascribed to them in the Warrant Indenture as such meanings may be amended or supplemented with respect to the Warrants by this Supplemental Warrant Indenture. In the event of any inconsistency between the meaning given to a term in the Warrant Indenture and the meaning given to the same term in this Supplemental Warrant Indenture, the meaning given to the term in this Supplemental Warrant Indenture shall prevail to the extent of the inconsistency. |
(d) | Tilray hereby covenants, acknowledges and agrees that, as and from the date hereof, it shall be bound by the terms of the Warrant Indenture and shall cause HEXO to comply with its obligations under the Warrant Indenture. In particular but without limitation, in accordance with the Plan of Arrangement and Section 5.1(a) thereof, and subject to the terms of the Warrant Indenture, to the extent a Holder of Warrants has not exercised its rights of acquisition thereunder prior to the Effective Time, shall, upon the exercise of such rights thereafter, be entitled to be issued and receive and shall accept for the same aggregate consideration, upon such exercise, in lieu of the number of HEXO Shares to which such holder was theretofore entitled upon exercise of such Warrants, the kind and aggregate number of Common Shares that such holder would have been entitled to be issued and receive if, immediately prior to the Effective Time, such holder had been the registered holder of the number of HEXO Shares to which such holder was theretofore entitled upon exercise of such Warrants. |
(e) | In furtherance of Tilray’s covenant in Section (d) of this Supplemental Warrant Indenture above, Tilray hereby covenants, acknowledges and agrees that, as and from the Arrangement Effective Date, Tilray shall make available or cause to be made available the Common Shares in accordance with and subject to the terms of the Warrant Indenture. |
(f) | For the avoidance of doubt, from and after the Arrangement Effective Date, the Exercise Price payable in accordance with Section 3.2 of the Warrant Indenture shall be payable to Tilray. |
(g) | From and after the Arrangement Effective Date, the following amendments to the Warrant Indenture shall take effect: |
(i) | The definition for “Common Shares” in Section 1.1 of the Warrant Indenture shall be deleted and replaced with the following: |
“Common Shares” means 0.4352 of a fully paid and non-assessable share of common stock in the capital of Tilray as such shares of common stock are presently constituted (provided that in no event shall any fractional share of common stock be issued and where the aggregate number of shares of common stock to be issued to a Holder would result in such a fractional share being issuable, then the number of such shares of common stock to be issued to such Holder shall be rounded down to the closest whole number without any additional compensation or cost), provided that in the event of any adjustment pursuant to Article 4 of the Warrant Indenture, “Common Shares” shall thereafter mean the shares or other securities or property resulting from such adjustment, and “Common Share” means any one of them.
(ii) | References to the Corporation in the following sections of the Warrant Indenture shall be to Tilray: Section 1.1 “Auditors”, “Common Shares”, “Convertible Security”, “Counsel”, “Dividends” and “Equity Shares”, “VWAP”, “Warrantholders’ Request”; Section 2.11 (Transfer and Ownership of Warrants); Article 3 (Exercise of Warrants), provided that the words “in accordance with the following wire transfer instructions” and the wire instructions in Section 3.2(b) shall be removed and replaced with the words “as directed in writing by Tilray”; Article 4 (Adjustment of Number of Common Shares and Exercise Price) provided that references to the Corporation in Section 4.10 (Protection of Warrant Agent) shall be to Tilray and HEXO; and Section 6.2 (Suits by the Corporation). |
(iii) | Reference to “or Tilray” shall be added after each reference to the “Corporation” in Sections 2.3 (Warrantholder not a Shareholder), 2.6 (Book Entry Only Warrants), 2.8 (Register of Warrants), 2.12 (Cancellation of Surrendered Warrants), 3.6 (Effect of Exercise of Warrant Certificates), 5.1 (Optional Purchases by the Corporation), 5.2(e) (General Covenants), 5.4 (Performance of Covenants by Warrant Agent), 6.4 (Waiver of Default), 9.3 (Evidence, Experts and Advisers), 9.7 (Protection of Warrant Agent), 10.1 (Notice to the Corporation and the Warrant Agent) and 10.9 (Force Majeure). |
(iv) | Reference to “and Tilray” shall be added after each reference to the “Corporation” in Sections 5.2 (General Covenants) other than Subsection 5.2(e), 5.4 (Performance of Covenants by Warrant Agent), 5.5 (Enforceability of Warrants), 7.9 (Corporation and Warrant Agent may be represented), and 7.10 (Powers Exercisable by Extraordinary Resolution); Article 8 (Supplemental Indentures); Sections 9.1 (Indenture Legislation), 9.7 (Protection of Warrant Agent) and 9.14 (Compliance with Privacy Code). |
(v) | Section 5.2 (k) to (o) (General Covenants) are deleted and replaced in their entirety with the following: |
(k) it will engage in cannabis-related activities in Canada in accordance with the Cannabis Act (Canada) and all other applicable laws in Canada;
(l) to the extent it invests or engages (directly or indirectly) in any business or activity that is focused on serving the cannabis market in jurisdictions other than Canada, it will do so in accordance with all applicable laws in the relevant jurisdiction;
(m) it does not and will not specifically target or derive (or reasonably expect to derive) revenues or funds from any of the activities described in Section 5.2(l) above, unless and until such time that any such activities become legal under all applicable laws in the relevant jurisdiction; and
(n) it will provide the Warrant Agent with reasonable prior notice if it decides to engage in any of the activities described in (m) above, and the Corporation and Tilray agree that the Warrant Agent may, in its sole discretion, immediately terminate any contract for services between the Corporation and/or Tilray and the Warrant Agent (as applicable) upon receipt of any information relating to the Corporation’s or Tilray’s marijuana-related business activities, or as otherwise permitted under any such contract for service.
(vi) | Notices to the Corporation or Tilray pursuant to Section 10.1(1) shall be delivered to HEXO c/o Tilray at: |
Tilray Brands, Inc.
655 Madison Avenue
19th Floor
New York, New York
10065
Attention: Mitchell Gendel
Email: mitchell.gendel@tilray.com
With a copy (which will not constitute notice) to:
DLA Piper (Canada) LLP
Suite 6000, 1 First Canadian Place
PO Box 367, 100 King Street West
Toronto, ON
M5X 1E2
Attention: Russel Drew
Email: russel.drew@dlapiper.com
(h) | Tilray shall not have any responsibility or liability for any matter for which the liability of the Corporation does not have liability or responsibility under the Warrant Indenture. |
(i) | In connection with Section 5.2(e) of the Warrant Indenture, Tilray represents and warrants that the shares of common stock in the capital of Tilray are listed on the NASDAQ under the trading symbol “TLRY” and Tilray has filed a registration statement in respect of its shares of common stock with the SEC. |
(j) | Notwithstanding anything in the Warrant Indenture, HEXO, Tilray and the Warrant Agent hereby confirm that no Warrants shall be issued following the Arrangement Effective Date without the prior written consent of Tilray. |
(k) | This Supplemental Warrant Indenture shall be governed by and be construed in accordance with the laws of the Province of Ontario and shall be binding upon the parties hereto and their respective successors and assigns. |
(l) | This Supplemental Warrant Indenture may be simultaneously executed (including by electronic signature) in several counterparts, each of which when so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument and notwithstanding their date of execution shall be deemed to bear the date set out at the top of the first page of this Supplement Indenture. Delivery of an executed copy of this Supplemental Warrant Indenture by electronic facsimile transmission or other means of electronic communication capable of producing a printed copy will be deemed to be execution and delivery of this Supplemental Warrant Indenture as of the date hereof, acceptance of which shall be legally effective to create a valid and binding agreement between the parties hereto in accordance with the terms hereof. |
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF the parties hereto have executed this Supplemental Warrant Indenture as of the date first above written.
TILRAY BRANDS, INC. | ||
Per: | /s/ Mitchell Gendel |
|
Name: Mitchell Gendel Title: Global General Counsel |
||
TSX TRUST COMPANY | ||
Per: | /s/ Dalisha Dyal |
|
Name: Dalisha Dyal Title: Corporate Trust Officer |
||
Per: | /s/ Donald Crawford |
|
Name: Donald Crawford Title: Senior Manager, Corporate Trust |
||
HEXO CORP. | ||
Per: | /s/ Rob Godfrey |
|
Name: Rob Godfrey Title: Director |
Exhibit 4.14
THIS SUPPLEMENTAL WARRANT INDENTURE is made as of June 22, 2023.
AMONG:
HEXO CORP., a corporation incorporated under the laws of Ontario (hereinafter called “HEXO”),
AND
TILRAY BRANDS, INC., a corporation incorporated under the laws of Delaware (hereinafter called “Tilray”),
AND
TSX TRUST COMPANY, a trust company existing under the laws of Ontario (hereinafter called the “Warrant Agent”)
RECITALS
WHEREAS:
1. | HEXO and the Warrant Agent executed a common share purchase warrant indenture, dated as of June 5, 2020 (the “Warrant Indenture”), a copy of which is included in Schedule “A” hereto, providing for the issue, and governing the terms of, certain common share purchase warrants (the “Warrants”). |
2. | On the date hereof (the “Arrangement Effective Date”), Tilray acquired all of HEXO’s issued and outstanding common shares by way of a plan of arrangement (the “Plan of Arrangement”) under the Business Corporations Act (Ontario) (the “Arrangement”). |
3. | In accordance with Section 5.1 of the Plan of Arrangement, each holder of a Warrant, to the extent such Warrant has not expired by 12:01a.m. (Toronto time) on the Arrangement Effective Date (the “Effective Time”) and the holder of such Warrant has not exercised its rights of acquisition thereunder prior to the Effective Time, shall, upon the exercise of such rights, be entitled to be issued and receive and shall accept, for the same aggregate consideration, upon such exercise, in lieu of the number of common shares in the capital of HEXO (“HEXO Shares”) to which such holder was theretofore entitled upon exercise of such Warrants, the kind and aggregate number of shares of capital stock of Tilray (“Tilray Shares” or “Common Shares”) that such holder would have been entitled to be issued and receive if, immediately prior to the Effective Time, such holder had been the registered holder of the number of HEXO Shares to which such holder was theretofore entitled upon exercise of such Warrants. |
4. | The Plan of Arrangement will trigger an adjustment under Article 4 (and, more specifically, Section 4.1(d)) of the Warrant Indenture, and as such, the Warrant Agent, relying on advice of Counsel, has determined it appropriate to give effect to or evidence the provisions of Section 4.1(d) of the Warrant Indenture by way of this Supplemental Warrant Indenture in order to provide for the application of the provisions of the Warrant Indenture with respect to the rights and interests of the Registered Warrantholders on and after the Arrangement Effective Date, and pursuant to Section 5.2 of the Plan of Arrangement. |
5. | Under Section 8.1 of the Warrant Indenture, subject to the prior approval of the TSX, HEXO and the Warrant Agent may execute and deliver indentures supplemental to the Warrant Indenture setting forth any adjustments resulting from the application of the provisions of Article 4 (Adjustments); |
6. | The foregoing recitals are made as representations of HEXO and Tilray, and not by the Warrant Agent. |
7. | The Warrant Agent has agreed to enter into this Supplemental Warrant Indenture and to hold all rights, interests and benefits contained herein for and on behalf of those persons who are holders of Warrants issued pursuant to the Warrant Indenture as modified by this Supplemental Warrant Indenture from time to time. |
NOW THEREFORE THIS INDENTURE WITNESSES that for good and valuable consideration mutually given and received, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed and declared as follows:
(a) | This Supplemental Warrant Indenture is supplemental to the Warrant Indenture and the Warrant Indenture shall henceforth be read in conjunction with this Supplemental Warrant Indenture and all the provisions of the Warrant Indenture, except only insofar as the same may be inconsistent with the express provisions hereof, shall apply and have the same effect as if all the provisions of the Warrant Indenture and of this Supplemental Warrant Indenture were contained in one instrument and the expressions used herein shall have the same meaning as is ascribed to the corresponding expressions in the Warrant Indenture. |
(b) | On and after the date hereof, each reference to the Warrant Indenture, as amended by this Supplemental Warrant Indenture, “this Warrant Indenture”, “this indenture”, “herein”, “hereby”, and similar references, and each reference to the Warrant Indenture in any other agreement, certificate, document or instrument relating thereto, shall mean and refer to the Warrant Indenture as amended hereby. Except as specifically amended by the Supplemental Warrant Indenture, all other terms and conditions of the Warrant Indenture shall remain in full force and unchanged. |
(c) | All terms which are defined in the Warrant Indenture and are used but not defined in this Supplemental Warrant Indenture shall have the meanings ascribed to them in the Warrant Indenture as such meanings may be amended or supplemented with respect to the Warrants by this Supplemental Warrant Indenture. In the event of any inconsistency between the meaning given to a term in the Warrant Indenture and the meaning given to the same term in this Supplemental Warrant Indenture, the meaning given to the term in this Supplemental Warrant Indenture shall prevail to the extent of the inconsistency. |
(d) | Tilray hereby covenants, acknowledges and agrees that, as and from the date hereof, it shall be bound by the terms of the Warrant Indenture and shall cause HEXO to comply with its obligations under the Warrant Indenture. In particular but without limitation, in accordance with the Plan of Arrangement and Section 5.1(a) thereof, and subject to the terms of the Warrant Indenture, to the extent a Holder of Warrants has not exercised its rights of acquisition thereunder prior to the Effective Time, shall, upon the exercise of such rights thereafter, be entitled to be issued and receive and shall accept for the same aggregate consideration, upon such exercise, in lieu of the number of HEXO Shares to which such holder was theretofore entitled upon exercise of such Warrants, the kind and aggregate number of Common Shares that such holder would have been entitled to be issued and receive if, immediately prior to the Effective Time, such holder had been the registered holder of the number of HEXO Shares to which such holder was theretofore entitled upon exercise of such Warrants. |
(e) | In furtherance of Tilray’s covenant in Section (d) of this Supplemental Warrant Indenture above, Tilray hereby covenants, acknowledges and agrees that, as and from the Arrangement Effective Date, Tilray shall make available or cause to be made available the Common Shares in accordance with and subject to the terms of the Warrant Indenture. |
(f) | For the avoidance of doubt, from and after the Arrangement Effective Date, the Exercise Price payable in accordance with Section 3.2 of the Warrant Indenture shall be payable to Tilray. |
(g) | From and after the Arrangement Effective Date, the following amendments to the Warrant Indenture shall take effect: |
(i) | The definition for “Common Shares” in Section 1.1 of the Warrant Indenture shall be deleted and replaced with the following: |
“Common Shares” means 0.4352 of a fully paid and non-assessable share of common stock in the capital of Tilray as such shares of common stock are presently constituted (provided that in no event shall any fractional share of common stock be issued and where the aggregate number of shares of common stock to be issued to a Holder would result in such a fractional share being issuable, then the number of such shares of common stock to be issued to such Holder shall be rounded down to the closest whole number without any additional compensation or cost), provided that in the event of any adjustment pursuant to Article 4 of the Warrant Indenture, “Common Shares” shall thereafter mean the shares or other securities or property resulting from such adjustment, and “Common Share” means any one of them.
(ii) | The definition for “NYSE” in Section 1.1 of the Warrant Indenture shall be deleted and replaced with the following: |
“Nasdaq” means Nasdaq Capital Market;
and all references to NYSE in the Warrant Indenture shall be to Nasdaq.
(iii) | References to the Corporation in the following sections of the Warrant Indenture shall be to Tilray: Section 1.1 “Auditors”, “Common Shares”, “Convertible Security”, “Counsel”, “Dividends” and “Equity Shares”, “VWAP”, “Warrantholders’ Request”; Section 2.11 (Transfer and Ownership of Warrants); Article 3 (Exercise of Warrants), provided that the words “in accordance with the following wire transfer instructions” and the wire instructions in Section 3.2(b) shall be removed and replaced with the words “as directed in writing by Tilray”; Article 4 (Adjustment of Number of Common Shares and Exercise Price) provided that references to the Corporation in Section 4.10 (Protection of Warrant Agent) shall be to Tilray and HEXO; and Section 6.2 (Suits by the Corporation). |
(iv) | Reference to “or Tilray” shall be added after each reference to the “Corporation” in Sections 2.3 (Warrantholder not a Shareholder), 2.6 (Book Entry Only Warrants), 2.8 (Register of Warrants), 2.12 (Cancellation of Surrendered Warrants), 3.6 (Effect of Exercise of Warrant Certificates), 5.1 (Optional Purchases by the Corporation), 5.2(e) (General Covenants), 5.4 (Performance of Covenants by Warrant Agent), 6.4 (Waiver of Default), 9.3 (Evidence, Experts and Advisers), 9.7 (Protection of Warrant Agent), 10.1 (Notice to the Corporation and the Warrant Agent) and 10.9 (Force Majeure). |
(v) | Reference to “and Tilray” shall be added after each reference to the “Corporation” in Sections 5.2 (General Covenants) other than Subsection 5.2(e), 5.4 (Performance of Covenants by Warrant Agent), 5.5 (Enforceability of Warrants), 7.9 (Corporation and Warrant Agent may be represented), and 7.10 (Powers Exercisable by Extraordinary Resolution); Article 8 (Supplemental Indentures); Sections 9.1 (Indenture Legislation), 9.7 (Protection of Warrant Agent) and 9.14 (Compliance with Privacy Code). |
(vi) | Section 2.14 (Legends) shall be deleted. |
(vii) | Section 5.2 (i) to (m) (General Covenants) are deleted and replaced in their entirety with the following: |
(i) it will engage in cannabis-related activities in Canada in accordance with the Cannabis Act (Canada) and all other applicable laws in Canada;
(j) to the extent it invests or engages (directly or indirectly) in any business or activity that is focused on serving the cannabis market in jurisdictions other than Canada, it will do so in accordance with all applicable laws in the relevant jurisdiction;
(k) it does not and will not specifically target or derive (or reasonably expect to derive) revenues or funds from any of the activities described in Section 5.2(l) above, unless and until such time that any such activities become legal under all applicable laws in the relevant jurisdiction; and
(l) it will provide the Warrant Agent with reasonable prior notice if it decides to engage in any of the activities described in (m) above, and the Corporation and Tilray agree that the Warrant Agent may, in its sole discretion, immediately terminate any contract for services between the Corporation and/or Tilray and the Warrant Agent (as applicable) upon receipt of any information relating to the Corporation’s or Tilray’s marijuana-related business activities, or as otherwise permitted under any such contract for service.
(viii) | Notices to the Corporation or Tilray pursuant to Section 10.1(1) shall be delivered to HEXO care of / Tilray, respectively, at: |
Tilray Brands, Inc.
655 Madison Avenue
19th Floor
New York, New York
10065
Attention: Mitchell Gendel
Email: mitchell.gendel@tilray.com
With a copy (which will not constitute notice) to:
DLA Piper (Canada) LLP
Suite 6000, 1 First Canadian Place
PO Box 367, 100 King Street West
Toronto, ON
M5X 1E2
Attention: Russel Drew
Email: russel.drew@dlapiper.com
(h) | Tilray shall not have any responsibility or liability for any matter for which the liability of the Corporation does not have liability or responsibility under the Warrant Indenture. |
(i) | In connection with Section 5.2(e) of the Warrant Indenture, Tilray represents and warrants that the shares of common stock in the capital of Tilray are listed on the NASDAQ under the trading symbol “TLRY” and Tilray has filed a registration statement in respect of its shares of common stock with the SEC. |
(j) | Notwithstanding anything in the Warrant Indenture, HEXO, Tilray and the Warrant Agent hereby confirm that no Warrants shall be issued following the Arrangement Effective Date without the prior written consent of Tilray. |
(k) | This Supplemental Warrant Indenture shall be governed by and be construed in accordance with the laws of the Province of Ontario and shall be binding upon the parties hereto and their respective successors and assigns. |
(l) | This Supplemental Warrant Indenture may be simultaneously executed (including by electronic signature) in several counterparts, each of which when so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument and notwithstanding their date of execution shall be deemed to bear the date set out at the top of the first page of this Supplement Indenture. Delivery of an executed copy of this Supplemental Warrant Indenture by electronic facsimile transmission or other means of electronic communication capable of producing a printed copy will be deemed to be execution and delivery of this Supplemental Warrant Indenture as of the date hereof, acceptance of which shall be legally effective to create a valid and binding agreement between the parties hereto in accordance with the terms hereof. |
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF the parties hereto have executed this Supplemental Warrant Indenture as of the date first above written.
TILRAY BRANDS, INC. | ||
Per: | /s/ Mitchell Gendel |
|
Name: Mitchell Gendel Title: Global General Counsel |
||
TSX TRUST COMPANY | ||
Per: | /s/ Dalisha Dyal |
|
Name: Dalisha Dyal Title: Corporate Trust Officer |
||
Per: | /s/ Donald Crawford |
|
Name: Donald Crawford Title: Senior Manager, Corporate Trust |
||
HEXO CORP. | ||
Per: | /s/ Rob Godfrey |
|
Name: Rob Godfrey Title: Director |
Exhibit 4.16
THIS SUPPLEMENTAL WARRANT INDENTURE is made as of June 22, 2023.
AMONG:
HEXO CORP., a corporation incorporated under the laws of Ontario (hereinafter called “HEXO”),
AND
TILRAY BRANDS, INC., a corporation incorporated under the laws of Delaware (hereinafter called “Tilray”),
AND
TSX TRUST COMPANY, a trust company existing under the laws of Ontario (hereinafter called the “Warrant Agent”)
RECITALS
WHEREAS:
1. | HEXO and the Warrant Agent executed a warrant indenture, dated as of May 21, 2020 (the “Warrant Indenture”), a copy of which is included in Schedule “A” hereto, providing for the issue, and governing the terms, of certain common share purchase warrants (the “Warrants”). |
2. | On the date hereof (the “Arrangement Effective Date”), Tilray acquired all of HEXO’s issued and outstanding common shares by way of a plan of arrangement (the “Plan of Arrangement”) under the Business Corporations Act (Ontario) (the “Arrangement”). |
3. | Section 5.1 of the Plan of Arrangement, each holder of a Warrant, to the extent such Warrant has not expired by 12:01a.m. (Toronto time) on the Arrangement Effective Date (the “Effective Time”) and the holder of such Warrant has not exercised its rights of acquisition thereunder prior to the Effective Time, shall, upon the exercise of such rights, be entitled to be issued and receive and shall accept, for the same aggregate consideration, upon such exercise, in lieu of the number of common shares in the capital of HEXO (“HEXO Shares”) to which such holder was theretofore entitled upon exercise of such Warrants, the kind and aggregate number of shares of capital stock of Tilray (“Tilray Shares” or “Common Shares”) that such holder would have been entitled to be issued and receive if, immediately prior to the Effective Time, such holder had been the registered holder of the number of HEXO Shares to which such holder was theretofore entitled upon exercise of such Warrants. |
4. | The Plan of Arrangement will trigger an adjustment under Article 4 (and, more specifically, Section 4.1(d)) of the Warrant Indenture, and as such, the Warrant Agent, relying on advice of Counsel, has determined it appropriate to give effect to or evidence the provisions of Section 4.1(d) of the Warrant Indenture by way of this Supplemental Warrant Indenture in order to provide for the application of the provisions of the Warrant Indenture with respect to the rights and interests of the Registered Warrantholders on and after the Arrangement Effective Date, and pursuant to Section 5.2 of the Plan of Arrangement. |
5. | Under Section 8.1 of the Warrant Indenture, subject to the prior approval of the TSX, HEXO and the Warrant Agent may execute and deliver indentures supplemental to the Warrant Indenture setting forth any adjustments resulting from the application of the provisions of Article 4 (Adjustments); |
6. | The foregoing recitals are made as representations of HEXO and Tilray, and not by the Warrant Agent. |
7. | The Warrant Agent has agreed to enter into this Supplemental Warrant Indenture and to hold all rights, interests and benefits contained herein for and on behalf of those persons who are holders of Warrants issued pursuant to the Warrant Indenture as modified by this Supplemental Warrant Indenture from time to time. |
NOW THEREFORE THIS INDENTURE WITNESSES that for good and valuable consideration mutually given and received, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed and declared as follows:
(a) | This Supplemental Warrant Indenture is supplemental to the Warrant Indenture and the Warrant Indenture shall henceforth be read in conjunction with this Supplemental Warrant Indenture and all the provisions of the Warrant Indenture, except only insofar as the same may be inconsistent with the express provisions hereof, shall apply and have the same effect as if all the provisions of the Warrant Indenture and of this Supplemental Warrant Indenture were contained in one instrument and the expressions used herein shall have the same meaning as is ascribed to the corresponding expressions in the Warrant Indenture. |
(b) | On and after the date hereof, each reference to the Warrant Indenture, as amended by this Supplemental Warrant Indenture, “this Warrant Indenture”, “this indenture”, “herein”, “hereby”, and similar references, and each reference to the Warrant Indenture in any other agreement, certificate, document or instrument relating thereto, shall mean and refer to the Warrant Indenture as amended hereby. Except as specifically amended by the Supplemental Warrant Indenture, all other terms and conditions of the Warrant Indenture shall remain in full force and unchanged. |
(c) | All terms which are defined in the Warrant Indenture and are used but not defined in this Supplemental Warrant Indenture shall have the meanings ascribed to them in the Warrant Indenture as such meanings may be amended or supplemented with respect to the Warrants by this Supplemental Warrant Indenture. In the event of any inconsistency between the meaning given to a term in the Warrant Indenture and the meaning given to the same term in this Supplemental Warrant Indenture, the meaning given to the term in this Supplemental Warrant Indenture shall prevail to the extent of the inconsistency. |
(d) | Tilray hereby covenants, acknowledges and agrees that, as and from the date hereof, it shall be bound by the terms of the Warrant Indenture and shall cause HEXO to comply with its obligations under the Warrant Indenture. In particular but without limitation, in accordance with the Plan of Arrangement and Section 5.1(a) thereof, and subject to the terms of the Warrant Indenture, to the extent a Holder of Warrants has not exercised its rights of acquisition thereunder prior to the Effective Time, shall, upon the exercise of such rights thereafter, be entitled to be issued and receive and shall accept for the same aggregate consideration, upon such exercise, in lieu of the number of HEXO Shares to which such holder was theretofore entitled upon exercise of such Warrants, the kind and aggregate number of Common Shares that such holder would have been entitled to be issued and receive if, immediately prior to the Effective Time, such holder had been the registered holder of the number of HEXO Shares to which such holder was theretofore entitled upon exercise of such Warrants. |
(e) | In furtherance of Tilray’s covenant in Section (d) of this Supplemental Warrant Indenture above, Tilray hereby covenants, acknowledges and agrees that, as and from the Arrangement Effective Date, Tilray shall make available or cause to be made available the Common Shares in accordance with and subject to the terms of the Warrant Indenture. |
(f) | For the avoidance of doubt, from and after the Arrangement Effective Date, the Exercise Price payable in accordance with Section 3.2 of the Warrant Indenture shall be payable to Tilray. |
(g) | From and after the Arrangement Effective Date, the following amendments to the Warrant Indenture shall take effect: |
(i) | The definition for “Common Shares” in Section 1.1 of the Warrant Indenture shall be deleted and replaced with the following: |
“Common Shares” means 0.4352 of a fully paid and non-assessable share of common stock in the capital of Tilray as such shares of common stock are presently constituted (provided that in no event shall any fractional share of common stock be issued and where the aggregate number of shares of common stock to be issued to a Holder would result in such a fractional share being issuable, then the number of such shares of common stock to be issued to such Holder shall be rounded down to the closest whole number without any additional compensation or cost), provided that in the event of any adjustment pursuant to Article 4 of the Warrant Indenture, “Common Shares” shall thereafter mean the shares or other securities or property resulting from such adjustment, and “Common Share” means any one of them.
(ii) | The definition for “NYSE” in Section 1.1 of the Warrant Indenture shall be deleted and replaced with the following: |
“Nasdaq” means Nasdaq Capital Market;
and all references to NYSE in the Warrant Indenture shall be to Nasdaq.
(iii) | References to the Corporation in the following sections of the Warrant Indenture shall be to Tilray: Section 1.1 “Auditors”, “Common Shares”, “Convertible Security”, “Counsel”, “Dividends” and “Equity Shares”, “VWAP”, “Warrantholders’ Request”; Section 2.11 (Transfer and Ownership of Warrants); Article 3 (Exercise of Warrants), provided that the words “in accordance with the following wire transfer instructions” and the wire instructions in Section 3.2(b) shall be removed and replaced with the words “as directed in writing by Tilray”; Article 4 (Adjustment of Number of Common Shares and Exercise Price) provided that references to the Corporation in Section 4.10 (Protection of Warrant Agent) shall be to Tilray and HEXO; and Section 6.2 (Suits by the Corporation). |
(iv) | Reference to “or Tilray” shall be added after each reference to the “Corporation” in Sections 2.3 (Warrantholder not a Shareholder), 2.6 (Book Entry Only Warrants), 2.8 (Register of Warrants), 2.12 (Cancellation of Surrendered Warrants), 3.6 (Effect of Exercise of Warrant Certificates), 5.1 (Optional Purchases by the Corporation), 5.2(e) (General Covenants), 5.4 (Performance of Covenants by Warrant Agent), 6.4 (Waiver of Default), 9.3 (Evidence, Experts and Advisers), 9.7 (Protection of Warrant Agent), 10.1 (Notice to the Corporation and the Warrant Agent) and 10.9 (Force Majeure). |
(v) | Reference to “and Tilray” shall be added after each reference to the “Corporation” in Sections 5.2 (General Covenants) other than Subsection 5.2(e), 5.4 (Performance of Covenants by Warrant Agent), 5.5 (Enforceability of Warrants), 7.9 (Corporation and Warrant Agent may be represented), and 7.10 (Powers Exercisable by Extraordinary Resolution); Article 8 (Supplemental Indentures); Sections 9.1 (Indenture Legislation), 9.7 (Protection of Warrant Agent) and 9.14 (Compliance with Privacy Code). |
(vi) | Section 5.2 (k) to (o) (General Covenants) are deleted and replaced in their entirety with the following: |
(k) it will engage in cannabis-related activities in Canada in accordance with the Cannabis Act (Canada) and all other applicable laws in Canada;
(l) to the extent it invests or engages (directly or indirectly) in any business or activity that is focused on serving the cannabis market in jurisdictions other than Canada, it will do so in accordance with all applicable laws in the relevant jurisdiction;
(m) it does not and will not specifically target or derive (or reasonably expect to derive) revenues or funds from any of the activities described in Section 5.2(l) above, unless and until such time that any such activities become legal under all applicable laws in the relevant jurisdiction; and
(n) it will provide the Warrant Agent with reasonable prior notice if it decides to engage in any of the activities described in (m) above, and the Corporation and Tilray agree that the Warrant Agent may, in its sole discretion, immediately terminate any contract for services between the Corporation and/or Tilray and the Warrant Agent (as applicable) upon receipt of any information relating to the Corporation’s or Tilray’s marijuana-related business activities, or as otherwise permitted under any such contract for service.
(vii) | Notices to the Corporation or Tilray pursuant to Section 10.1(1) shall be delivered to HEXO c/o Tilray at: |
Tilray Brands, Inc.
655 Madison Avenue
19th Floor
New York, New York
10065
Attention: Mitchell Gendel
Email: mitchell.gendel@tilray.com
With a copy (which will not constitute notice) to:
DLA Piper (Canada) LLP
Suite 6000, 1 First Canadian Place
PO Box 367, 100 King Street West
Toronto, ON
M5X 1E2
Attention: Russel Drew
Email: russel.drew@dlapiper.com
(h) | Tilray shall not have any responsibility or liability for any matter for which the liability of the Corporation does not have liability or responsibility under the Warrant Indenture. |
(i) | In connection with Section 5.2(e) of the Warrant Indenture, Tilray represents and warrants that the shares of common stock in the capital of Tilray are listed on the NASDAQ under the trading symbol “TLRY” and Tilray has filed a registration statement in respect of its shares of common stock with the SEC. |
(j) | Notwithstanding anything in the Warrant Indenture, HEXO, Tilray and the Warrant Agent hereby confirm that no Warrants shall be issued following the Arrangement Effective Date without the prior written consent of Tilray. |
(k) | This Supplemental Warrant Indenture shall be governed by and be construed in accordance with the laws of the Province of Ontario and shall be binding upon the parties hereto and their respective successors and assigns. |
(l) | This Supplemental Warrant Indenture may be simultaneously executed (including by electronic signature) in several counterparts, each of which when so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument and notwithstanding their date of execution shall be deemed to bear the date set out at the top of the first page of this Supplement Indenture. Delivery of an executed copy of this Supplemental Warrant Indenture by electronic facsimile transmission or other means of electronic communication capable of producing a printed copy will be deemed to be execution and delivery of this Supplemental Warrant Indenture as of the date hereof, acceptance of which shall be legally effective to create a valid and binding agreement between the parties hereto in accordance with the terms hereof. |
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF the parties hereto have executed this Supplemental Warrant Indenture as of the date first above written.
TILRAY BRANDS, INC. | ||
Per: | /s/ Mitchell Gendel |
|
Name: Mitchell Gendel Title: Global General Counsel |
||
TSX TRUST COMPANY | ||
Per: | /s/ Dalisha Dyal |
|
Name: Dalisha Dyal Title: Corporate Trust Officer |
||
Per: | /s/ Donald Crawford |
|
Name: Donald Crawford Title: Senior Manager, Corporate Trust |
||
HEXO CORP. | ||
Per: | /s/ Rob Godfrey |
|
Name: Rob Godfrey Title: Director |
Exhibit 4.18
THIS SUPPLEMENTAL WARRANT INDENTURE is made as of June 22, 2023.
AMONG:
HEXO CORP., a corporation incorporated under the laws of Ontario (hereinafter called “HEXO”),
AND
TILRAY BRANDS, INC., a corporation incorporated under the laws of Delaware (hereinafter called “Tilray”),
AND
TSX TRUST COMPANY, a trust company existing under the laws of Ontario (hereinafter called the “Warrant Agent”)
RECITALS
WHEREAS:
1. | HEXO and the Warrant Agent executed a warrant indenture, dated as of April 13, 2020 (the “Warrant Indenture”), a copy of which is included in Schedule “A” hereto, providing for the issue, and governing the terms, of certain common share purchase warrants (the “Warrants”). |
2. | On the date hereof (the “Arrangement Effective Date”), Tilray acquired all of HEXO’s issued and outstanding common shares by way of a plan of arrangement (the “Plan of Arrangement”) under the Business Corporations Act (Ontario) (the “Arrangement”). |
3. | In accordance with Section 5.1 of the Plan of Arrangement, each holder of a Warrant, to the extent such Warrant has not expired by 12:01a.m. (Toronto time) on the Arrangement Effective Date (the “Effective Time”) and the holder of such Warrant has not exercised its rights of acquisition thereunder prior to the Effective Time, shall, upon the exercise of such rights, be entitled to be issued and receive and shall accept, for the same aggregate consideration, upon such exercise, in lieu of the number of common shares in the capital of HEXO (“HEXO Shares”) to which such holder was theretofore entitled upon exercise of such Warrants, the kind and aggregate number of shares of capital stock of Tilray (“Tilray Shares” or “Common Shares”) that such holder would have been entitled to be issued and receive if, immediately prior to the Effective Time, such holder had been the registered holder of the number of HEXO Shares to which such holder was theretofore entitled upon exercise of such Warrants. |
4. | The Plan of Arrangement will trigger an adjustment under Article 4 (and, more specifically, Section 4.1(d)) of the Warrant Indenture, and as such, the Warrant Agent, relying on advice of Counsel, has determined it appropriate to give effect to or evidence the provisions of Section 4.1(d) of the Warrant Indenture by way of this Supplemental Warrant Indenture in order to provide for the application of the provisions of the Warrant Indenture with respect to the rights and interests of the Registered Warrantholders on and after the Arrangement Effective Date, and pursuant to Section 5.2 of the Plan of Arrangement. |
5. | Under Section 8.1 of the Warrant Indenture, subject to the prior approval of the TSX, HEXO and the Warrant Agent may execute and deliver indentures supplemental to the Warrant Indenture setting forth any adjustments resulting from the application of the provisions of Article 4 (Adjustments); |
6. | The foregoing recitals are made as representations of HEXO and Tilray, and not by the Warrant Agent. |
7. | The Warrant Agent has agreed to enter into this Supplemental Warrant Indenture and to hold all rights, interests and benefits contained herein for and on behalf of those persons who are holders of Warrants issued pursuant to the Warrant Indenture as modified by this Supplemental Warrant Indenture from time to time. |
NOW THEREFORE THIS INDENTURE WITNESSES that for good and valuable consideration mutually given and received, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed and declared as follows:
(a) | This Supplemental Warrant Indenture is supplemental to the Warrant Indenture and the Warrant Indenture shall henceforth be read in conjunction with this Supplemental Warrant Indenture and all the provisions of the Warrant Indenture, except only insofar as the same may be inconsistent with the express provisions hereof, shall apply and have the same effect as if all the provisions of the Warrant Indenture and of this Supplemental Warrant Indenture were contained in one instrument and the expressions used herein shall have the same meaning as is ascribed to the corresponding expressions in the Warrant Indenture. |
(b) | On and after the date hereof, each reference to the Warrant Indenture, as amended by this Supplemental Warrant Indenture, “this Warrant Indenture”, “this indenture”, “herein”, “hereby”, and similar references, and each reference to the Warrant Indenture in any other agreement, certificate, document or instrument relating thereto, shall mean and refer to the Warrant Indenture as amended hereby. Except as specifically amended by the Supplemental Warrant Indenture, all other terms and conditions of the Warrant Indenture shall remain in full force and unchanged. |
(c) | All terms which are defined in the Warrant Indenture and are used but not defined in this Supplemental Warrant Indenture shall have the meanings ascribed to them in the Warrant Indenture as such meanings may be amended or supplemented with respect to the Warrants by this Supplemental Warrant Indenture. In the event of any inconsistency between the meaning given to a term in the Warrant Indenture and the meaning given to the same term in this Supplemental Warrant Indenture, the meaning given to the term in this Supplemental Warrant Indenture shall prevail to the extent of the inconsistency. |
(d) | Tilray hereby covenants, acknowledges and agrees that, as and from the date hereof, it shall be bound by the terms of the Warrant Indenture and shall cause HEXO to comply with its obligations under the Warrant Indenture. In particular but without limitation, in accordance with the Plan of Arrangement and Section 5.1(a) thereof, and subject to the terms of the Warrant Indenture, to the extent a Holder of Warrants has not exercised its rights of acquisition thereunder prior to the Effective Time, shall, upon the exercise of such rights thereafter, be entitled to be issued and receive and shall accept for the same aggregate consideration, upon such exercise, in lieu of the number of HEXO Shares to which such holder was theretofore entitled upon exercise of such Warrants, the kind and aggregate number of Common Shares that such holder would have been entitled to be issued and receive if, immediately prior to the Effective Time, such holder had been the registered holder of the number of HEXO Shares to which such holder was theretofore entitled upon exercise of such Warrants. |
(e) | In furtherance of Tilray’s covenant in Section (d) of this Supplemental Warrant Indenture above, Tilray hereby covenants, acknowledges and agrees that, as and from the Arrangement Effective Date, Tilray shall make available or cause to be made available the Common Shares in accordance with and subject to the terms of the Warrant Indenture. |
(f) | For the avoidance of doubt, from and after the Arrangement Effective Date, the Exercise Price payable in accordance with Section 3.2 of the Warrant Indenture shall be payable to Tilray. |
(g) | From and after the Arrangement Effective Date, the following amendments to the Warrant Indentures shall take effect: |
(i) | The definition for “Common Shares” in Section 1.1 of the Warrant Indenture shall be deleted and replaced with the following: |
“Common Shares” means 0.4352 of a fully paid and non-assessable share of common stock in the capital of Tilray as such shares of common stock are presently constituted (provided that in no event shall any fractional share of common stock be issued and where the aggregate number of shares of common stock to be issued to a Holder would result in such a fractional share being issuable, then the number of such shares of common stock to be issued to such Holder shall be rounded down to the closest whole number without any additional compensation or cost), provided that in the event of any adjustment pursuant to Article 4 of the Warrant Indenture, “Common Shares” shall thereafter mean the shares or other securities or property resulting from such adjustment, and “Common Share” means any one of them.
(ii) | The definition for “NYSE” in Section 1.1 of the Warrant Indenture shall be deleted and replaced with the following: |
“Nasdaq” means Nasdaq Capital Market;
and all references to NYSE in the Warrant Indenture shall be to Nasdaq.
(iii) | References to the Corporation in the following sections of the Warrant Indenture shall be to Tilray: Section 1.1 “Auditors”, “Common Shares”, “Convertible Security”, “Counsel”, “Dividends” and “Equity Shares”, “VWAP”, “Warrantholders’ Request”; Section 2.11 (Transfer and Ownership of Warrants); Article 3 (Exercise of Warrants), provided that the words “in accordance with the following wire transfer instructions” and the wire instructions in Section 3.2(b) shall be removed and replaced with the words “as directed in writing by Tilray”; Article 4 (Adjustment of Number of Common Shares and Exercise Price) provided that references to the Corporation in Section 4.10 (Protection of Warrant Agent) shall be to Tilray and HEXO; and Section 6.2 (Suits by the Corporation). |
(iv) | Reference to “or Tilray” shall be added after each reference to the “Corporation” in Sections 2.3 (Warrantholder not a Shareholder), 2.6 (Book Entry Only Warrants), 2.8 (Register of Warrants), 2.12 (Cancellation of Surrendered Warrants), 3.6 (Effect of Exercise of Warrant Certificates), 5.1 (Optional Purchases by the Corporation), 5.2(e) (General Covenants), 5.4 (Performance of Covenants by Warrant Agent), 6.4 (Waiver of Default), 9.3 (Evidence, Experts and Advisers), 9.7 (Protection of Warrant Agent), 10.1 (Notice to the Corporation and the Warrant Agent) and 10.9 (Force Majeure). |
(v) | Reference to “and Tilray” shall be added after each reference to the “Corporation” in Sections 5.2 (General Covenants) other than Subsection 5.2(e), 5.4 (Performance of Covenants by Warrant Agent), 5.5 (Enforceability of Warrants), 7.9 (Corporation and Warrant Agent may be represented), and 7.10 (Powers Exercisable by Extraordinary Resolution); Article 8 (Supplemental Indentures); Sections 9.1 (Indenture Legislation), 9.7 (Protection of Warrant Agent) and 9.14 (Compliance with Privacy Code). |
(vi) | Section 5.2 (k) to (o) (General Covenants) are deleted and replaced in their entirety with the following: |
(k) it will engage in cannabis-related activities in Canada in accordance with the Cannabis Act (Canada) and all other applicable laws in Canada;
(l) to the extent it invests or engages (directly or indirectly) in any business or activity that is focused on serving the cannabis market in jurisdictions other than Canada, it will do so in accordance with all applicable laws in the relevant jurisdiction;
(m) it does not and will not specifically target or derive (or reasonably expect to derive) revenues or funds from any of the activities described in Section 5.2(l) above, unless and until such time that any such activities become legal under all applicable laws in the relevant jurisdiction; and
(n) it will provide the Warrant Agent with reasonable prior notice if it decides to engage in any of the activities described in (m) above, and the Corporation and Tilray agree that the Warrant Agent may, in its sole discretion, immediately terminate any contract for services between the Corporation and/or Tilray and the Warrant Agent (as applicable) upon receipt of any information relating to the Corporation’s or Tilray’s marijuana-related business activities, or as otherwise permitted under any such contract for service.
(vii) | Notices to the Corporation or Tilray pursuant to Section 10.1(1) shall be delivered to HEXO c/o Tilray at: |
Tilray Brands, Inc.
655 Madison Avenue
19th Floor
New York, New York
10065
Attention: Mitchell Gendel
Email: mitchell.gendel@tilray.com
With a copy (which will not constitute notice) to:
DLA Piper (Canada) LLP
Suite 6000, 1 First Canadian Place
PO Box 367, 100 King Street West
Toronto, ON
M5X 1E2
Attention: Russel Drew
Email: russel.drew@dlapiper.com
(h) | Tilray shall not have any responsibility or liability for any matter for which the liability of the Corporation does not have liability or responsibility under the Warrant Indenture. |
(i) | In connection with Section 5.2(e) of the Warrant Indenture, Tilray represents and warrants that the shares of common stock in the capital of Tilray are listed on the NASDAQ under the trading symbol “TLRY” and Tilray has filed a registration statement in respect of its shares of common stock with the SEC. |
(j) | Notwithstanding anything in the Warrant Indenture, HEXO, Tilray and the Warrant Agent hereby confirm that no Warrants shall be issued following the Arrangement Effective Date without the prior written consent of Tilray. |
(k) | This Supplemental Warrant Indenture shall be governed by and be construed in accordance with the laws of the Province of Ontario and shall be binding upon the parties hereto and their respective successors and assigns. |
(l) | This Supplemental Warrant Indenture may be simultaneously executed (including by electronic signature) in several counterparts, each of which when so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument and notwithstanding their date of execution shall be deemed to bear the date set out at the top of the first page of this Supplement Indenture. Delivery of an executed copy of this Supplemental Warrant Indenture by electronic facsimile transmission or other means of electronic communication capable of producing a printed copy will be deemed to be execution and delivery of this Supplemental Warrant Indenture as of the date hereof, acceptance of which shall be legally effective to create a valid and binding agreement between the parties hereto in accordance with the terms hereof. |
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF the parties hereto have executed this Supplemental Warrant Indenture as of the date first above written.
TILRAY BRANDS, INC. | ||
Per: | /s/ Mitchell Gendel |
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Name: Mitchell Gendel Title: Global General Counsel |
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TSX TRUST COMPANY | ||
Per: | /s/ Dalisha Dyal |
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Name: Dalisha Dyal Title: Corporate Trust Officer |
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Per: | /s/ Donald Crawford |
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Name: Donald Crawford Title: Senior Manager, Corporate Trust |
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HEXO CORP. | ||
Per: | /s/ Rob Godfrey |
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Name: Rob Godfrey Title: Director |
Exhibit 5.1
June 22, 2023
Tilray Brands, Inc.
265 Talbot Street West
Leamington, Ontario, Canada
Ladies and Gentlemen:
We are acting as counsel to Tilray Brands, Inc., a Delaware corporation (the “Company”), in connection with the offering of up to 1,471,295 shares of its common stock, par value $0.0001 per share (“Common Stock”), issuable upon the exercise of warrants (the “Warrants”) to purchase shares of Common Stock (the “Shares”) that were assumed by the Company pursuant to an arrangement agreement, dated as of April 10, 2023, as amended on June 1, 2023 (as amended, the “Arrangement Agreement”), by and between the Company and HEXO Corp. a corporation existing under the laws of the Province of Ontario, as described in the Prospectus (as defined below), pursuant to a Registration Statement on Form S-3 (Registration Statement No. 333-267788) (the “Registration Statement”), filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), the prospectus included in the Registration Statement (the “Base Prospectus”), and the prospectus supplement dated June 22, 2023, filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations of the Act (the “Prospectus Supplement” and together with the Base Prospectus, the “Prospectus”). The Registration Statement was filed with the Commission and became automatically effective on October 7, 2022.
As counsel for the Company, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary for the purposes of rendering this opinion and we are familiar with the proceedings taken and proposed to be taken by the Company in relation to the registration of the issuance and sale of the Shares. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the originals of all documents submitted to us as copies. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of laws of the State of Delaware. We express no opinion herein as to any other laws, statutes, ordinances, rules, or regulations. As used herein, the term “laws of the State of Delaware” includes the Delaware laws and rules, regulations and orders thereunder that are currently in effect, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws.
With respect to our opinion expressed below, we have assumed that at or prior to the time of issuance of the Shares, the Registration Statement will not have been modified, withdrawn or deregistered and that there will not have occurred any change in law affecting the validity of the issuance of the Shares.
Based upon, subject to and limited by the foregoing, we are of the opinion that the Shares, when issued and delivered upon exercise and payment of the exercise price of the applicable Warrants, and in accordance with the terms of the applicable Warrants, will be validly issued, fully paid and nonassessable.
This opinion letter has been prepared for use in connection with the Prospectus Supplement. The foregoing opinion is rendered as of the date hereof. We assume no obligation to update or supplement this opinion if any laws change after the date hereof or if any facts or circumstances come to our attention after the date hereof that might change this opinion.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Company’s Current Report on Form 8-K to be filed with the Commission on or about June 22, 2023, which will be incorporated by reference in the Registration Statement, and the reference to us under the caption “Legal Matters” in the Prospectus Supplement, which is a part of the Registration Statement. In giving such consent, we do not hereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Commission thereunder.
Very truly yours, | |
/s/ DLA Piper LLP (US) |
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Creates Largest Canadian Cannabis
LP by Revenue1, Strengthening Tilray’s #1 Market Share Position. Tilray
expands its leading cannabis market share position in Canada with pro-forma cannabis market share increasing by 467 basis points to ~13% for the quarter ended May 31, 2023, including the #1 position in almost all markets.
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Establishes Unrivaled Portfolio of
High-Growth Brands. Tilray amplifies its market-leading offering and substantially expands its base of consumers and patients with a portfolio consisting of the highest growth consumer and medical
brands in the Canadian cannabis market across the premium, mainstream, and value segments.
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Enhances Tilray’s Position in
Growing Premium Pre-Roll Segment. HEXO’s state-of-the-art production process provides significant opportunities for Tilray to meet growing consumer demand for premium pre-roll and cone-style cannabis
products, representing a significant margin opportunity in a category which is expected to surpass flower on a revenue basis.
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Fortifies Commercial Network
Through Collective Sales, Marketing and Distribution Force. Tilray and HEXO will optimize their sales, marketing, and distribution networks to strengthen Tilray’s commercial footprint and hasten
market share growth.
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Enables Accelerated Cost Savings
and Earnings Growth. With this acquisition, Tilray expects to achieve additional cost savings in excess of US$27M on an annualized pre-tax basis, driven by synergies across production, sales,
marketing, distribution, and corporate savings, with potential incremental upside resulting from consolidating packaging, procurement, freight, and logistics. This work builds on Tilray’s substantial progress optimizing its operations
including improving distribution capabilities while also achieving significant reductions in costs related to transportation, waste, and other factors, and growing cannabis potencies to 25% on average.
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Scaled Platform Empowers
Tilray to Stay Ahead in Rapidly Consolidating Market. The combined organization is expected to result in increased economies of scale to succeed in today’s increasingly competitive and rapidly consolidating cannabis market.
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