|
Exhibit No.
|
|
Description
|
|
|
|
|
|
EX3.1
|
|
Form of Warrant
|
|
EX3.2
|
Warrant Indenture |
|
FLORA GROWTH CORP.,
an Ontario corporation
|
|||
|
Date: January 22, 2020
|
By:
|
/s/ Damian Lopez
|
|
|
Damian Lopez
|
|||
|
President and Chief Executive Officer
|
|||
|
Certificate Number: __
|
|
**______** Warrants
|
|
FLORA GROWTH CORP.
|
|
|
|
|
|
|
|
|
|
Per:
|
|
|
|
|
Authorized Signatory
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Countersigned and Registered by:
|
|
|
|
|
|
|
|
|
|
TSX TRUST COMPANY
|
|
|
|
|
By:
|
|||
|
Authorized Signatory
|
|||
| Date: |
|
(a)
|
“Company” means Flora Growth Corp. and includes any successor corporations;
|
|
(b)
|
“Company’s auditor” means the accountant duly appointed as auditor of the Company;
|
|
(c)
|
“Exercise Price” means US$1.00 per Share or as may be adjusted as per Part 5;
|
|
(d)
|
“Expiry Date” means the date defined as such on the face page of the Warrant Certificate;
|
|
(e)
|
“Expiry Time” means 5:00 p.m. Ontario time on the Expiry Date;
|
|
(f)
|
“Holder” means the registered holder of a Warrant;
|
|
(g)
|
“Joint Actors” has the meaning ascribed thereto in §7.1;
|
|
(h)
|
“person” means an individual, corporation, partnership, trustee or any unincorporated organization, and words importing persons have
a similar meaning;
|
|
(i)
|
“Shares” or “shares” means the common shares in the capital of the Company as constituted at
the date of issue of a Warrant and any shares resulting from any event referred to in Part 5;
|
|
(j)
|
“Warrant” means a warrant as evidenced by the certificate, one Warrant entitles the holder to purchase one (1) common share of the
Company (subject to adjustment) on or before the Expiry Date at the Exercise Price set forth on the Warrant Certificate;
|
|
(k)
|
“Warrant Certificate” means the certificate evidencing the Warrant;
|
|
(l)
|
“Warrant Exercise Form” means Appendix “B” hereof; and
|
|
(m)
|
“Warrant Indenture” means the warrant indenture to be entered into between the Company and TSX Trust Company, as Warrant Agent, in
respect of the Warrants;
|
|
(n)
|
“Warrant Transfer Form” means Appendix “C” hereof.
|
|
(a)
|
the words “herein”, “hereof”, and “hereunder” and
other words of similar import refer to these Terms and Conditions as a whole and not to any particular Part, clause, subclause or other subdivision;
|
|
(b)
|
a reference to a Part means a Part of these Terms and Conditions and the symbol § followed by a number or some combination of numbers and letters refers to the section,
paragraph or subparagraph of these Terms and Conditions so designated;
|
|
(c)
|
the headings are for convenience only, do not form a part of these Terms and Conditions and are not intended to interpret, define or limit the scope, extent or intent of
these Terms and Conditions or any of its provisions;
|
|
(d)
|
all dollar amounts referred to herein are expressed in United States funds;
|
|
(e)
|
time will be of the essence hereof; and
|
|
(f)
|
words importing the singular number include the plural and vice versa, and words importing the masculine gender include feminine and neuter genders.
|
|
(a)
|
adding to the provisions hereof such additional covenants and enforcement provisions as, in the opinion of counsel for the Company, are necessary or advisable in the
circumstances;
|
|
(b)
|
making such provisions not inconsistent herewith as may be necessary or desirable with respect to matters or questions arising hereunder or for the purpose of obtaining a
listing or quotation of Warrants on any stock exchange or house;
|
|
(c)
|
adding to or altering the provisions hereof in respect of the registration of Warrants making provision for the exchange of Warrant Certificates of different denominations;
and making any modification in the form of Warrant Certificates which does not affect the substance thereof;
|
|
(d)
|
for any other purpose not inconsistent with the terms hereof, including the correction or rectification of any ambiguities, defective provisions, errors or omissions herein;
and
|
|
(e)
|
to evidence any succession of any corporation and the assumption by any successor of the covenants of the Company herein and in the Warrants contained as provided hereafter
in this Part 8.
|
|
TO:
AND TO:
|
Flora Growth Corp.
TSX Trust Company (the “Warrant Agent”)
301-100 Adelaide Street W.
Toronto, Ontario M5H 4H1
|
|
NAME(S) IN FULL
|
ADDRESS(ES)
|
NUMBER OF SHARES
|
|
|
(A) | ☐ | the undersigned Holder at the time of exercise of the Warrant is not in the United States, is not a “U.S. person” as defined in Regulation S under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”), and is not exercising the Warrant for the account or benefit of a U.S. person or a person in the United States (as defined in Regulation S), and did not execute or deliver this exercise form in the United States; OR |
|
|
(B) | ☐ | the undersigned Holder is resident in the United States, is a U.S. person, or is exercising the Warrant for the account or benefit of a U.S. person or a person in the United States (a “U.S. Holder”), and is an “accredited investor”, as defined in Rule 501(a) of Regulation D under the U.S. Securities Act (a “U.S. Accredited Investor”), and has completed the U.S. Accredited Investor Status Certificate in the form attached to this exercise form; OR |
|
|
(C) | ☐ | if the undersigned Holder is a U.S. Holder, the undersigned Holder has delivered to the Company and the Company’s Warrant Agent an opinion of counsel (which will not be sufficient unless it is in form and substance satisfactory to the Company) or such other evidence satisfactory to the Company to the effect that with respect to the Shares to be delivered upon exercise of the Warrant, the issuance of such securities has been qualified pursuant to Regulation A under the U.S. Securities Act and applicable state securities laws, or an exemption from the registration requirements of the U.S. Securities Act and applicable state securities laws is available. |
|
|
1 |
the undersigned Holder has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the undersigned is able to bear the economic risk of loss
of his or her entire investment;
|
|
|
2. |
the undersigned is: (i) purchasing the Shares for his or her own account or for the account of one or more U.S. Accredited Investors with respect to which the undersigned is exercising sole investment discretion, and not on behalf of any
other person; (ii) is purchasing the Shares for investment purposes only and not with a view to resale, distribution or other disposition in violation of United States federal or state securities laws; and (iii) in the case of the purchase
by the undersigned of the Shares as agent or trustee for any other person or persons (each a “Beneficial Owner”), the undersigned Holder has due and proper authority to act as agent or trustee for and
on behalf of each such Beneficial Owner in connection with the transactions contemplated hereby; provided that: (x) if the undersigned Holder, or any Beneficial Owner, is a corporation or a partnership, syndicate, trust or other form of
unincorporated organization, the undersigned Holder or each such Beneficial Owner was not incorporated or created solely, nor is it being used primarily to permit purchases without a prospectus or registration statement under applicable
law; and (y) each Beneficial Owner, if any, is a U.S. Accredited Investor; and
|
|
|
3. |
the undersigned has not exercised the Warrants as a result of any form of general solicitation or general advertising (as such terms are used in Rule 502 of Regulation D under the U.S. Securities Act), including advertisements, articles,
notices or other communications published in any newspaper, magazine or similar media, or broadcast over radio, television, the Internet or other form of telecommunications, or any seminar or meeting whose attendees have been invited by
general solicitation or general advertising.
|
|
|
1. |
the Company has provided to the undersigned the opportunity to ask questions and receive answers concerning the terms and conditions of the offering, and the undersigned has had access to such information concerning the Company as the
undersigned has considered necessary or appropriate in connection with the undersigned’s investment decision to acquire the Shares;
|
|
|
2. |
if the undersigned decides to offer, sell or otherwise transfer any of the Shares, the undersigned must not, and will not, offer, sell or otherwise transfer any of such Shares directly or indirectly, unless:
|
|
|
(a) |
the sale is to the Company;
|
|
|
(b) |
the sale is made outside the United States in a transaction meeting the requirements of Rule 904 of Regulation S under the U.S. Securities Act and in compliance with applicable local laws and regulations;
|
|
|
(d) |
the Shares are sold in a transaction that does not require registration under the U.S. Securities Act or any applicable state laws and regulations governing the offer and sale of securities,
|
|
|
3. |
the Shares are “restricted securities” under applicable federal securities laws and that the U.S. Securities Act and the rules of the United States Securities and Exchange Commission provide in substance that the undersigned may dispose
of the Shares only pursuant to an effective registration statement under the U.S. Securities Act or an exemption therefrom;
|
|
|
4. |
the Company has no obligation to register any of the Shares or to take action so as to permit sales pursuant to the U.S. Securities Act (including Rule 144 thereunder);
|
|
|
5. |
the certificates representing the Shares (and any certificates issued in exchange or substitution for the Shares) will bear a legend stating that such securities have not been registered under the U.S. Securities Act or the securities
laws of any state of the United States, and may not be offered for sale or sold unless registered under the U.S. Securities Act and the securities laws of all applicable states of the United States, or unless an exemption from such
registration requirements is available;
|
|
|
6. |
the legend may be removed by delivery to the registrar and transfer agent of the Company and the Company of an opinion of counsel, reasonably satisfactory to the Company, that such legend is no longer required under applicable
requirements of the U.S. Securities Act or state securities laws;
|
|
|
7. |
there may be material tax consequences to the undersigned of an acquisition or disposition of the Shares;
|
|
|
8. |
the Company gives no opinion and makes no representation with respect to the tax consequences to the undersigned under United States, state, local or foreign tax law of the undersigned’s acquisition or disposition of any Shares; in
particular, no determination has been made whether the Company will be a “passive foreign investment company” (commonly known as a “PFIC”) within the meaning of Section 1297 of the United States Internal Revenue Code;
|
|
|
9. |
funds representing the exercise price for the Shares which will be advanced by the undersigned to the Company upon exercise of the Warrants will not represent proceeds of crime for the purposes of the United States Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (the “PATRIOT Act”), and the undersigned
acknowledges that the Company may in the future be required by law to disclose the undersigned’s name and other information relating to this exercise form and the undersigned’s subscription hereunder, on a confidential basis, pursuant to
the PATRIOT Act. No portion of the exercise price to be provided by the undersigned (i) has been or will be derived from or related to any activity that is deemed criminal under the laws of the United States, or any other jurisdiction, or
(ii) is being tendered on behalf of a person or entity who has not been identified to or by the undersigned, and it shall promptly notify the Company if the undersigned discovers that any of such representations ceases to be true and
provide the Company with appropriate information in connection therewith; and
|
|
|
10. |
the undersigned consents to the Company making a notation on its records or giving instructions to any Warrant Agent and transfer agent of the Company in order to implement the restrictions on transfer set forth and described in this
subscription form.
|
|
Legal Name:
|
||
|
Address:
|
||
|
_______ (1)
|
Any bank as defined in Section 3(a)(2) of the United States Securities Act of 1933, as amended (the “U.S. Securities Act”), or any savings and loan association or other
institution as defined in Section 3(a)(5)(A) of the U.S. Securities Act whether acting in its individual or fiduciary capacity; any broker or dealer registered pursuant to Section 15 of the U.S. Securities Exchange Act of 1934; any insurance
company as defined in Section 2(a)(13) of the U.S. Securities Act; any investment company registered under the U.S. Investment Company Act of 1940 or a business development company as defined in Section 2(a)(48) of that Act; any Small Business
Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the U.S. Small Business Investment Act of 1958; any plan established and maintained by a state, its political subdivisions, or any agency or
instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of US$5,000,000; any employee benefit plan within the meaning of the U.S. Employee Retirement Income Security
Act of 1974 if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit
plan has total assets in excess of US$5,000,000, or, if a self-directed plan, with investment decisions made solely by persons that are “accredited investors” (as such term is defined in Rule 501 of Regulation D of the U.S. Securities Act);
|
|
_______ (2)
|
Any private business development company as defined in Section 202(a)(22) of the U.S. Investment Advisers Act of 1940;
|
|
_______ (3)
|
Any organization described in Section 501(c)(3) of the U.S. Internal Revenue Code, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of US$5,000,000;
|
|
_______ (4)
|
Any trust with total assets in excess of US$5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person (being defined as a person who
has such knowledge and experience in financial and business matters that he or she is capable of evaluating the merits and risks of the prospective investment);
|
|
_______ (5)
|
A natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of purchase, exceeds US$1,000,000 (for the purposes of calculating net worth, (i) the person’s primary
residence shall not be included as an asset; (ii) indebtedness that is secured by the person’s primary residence, up to the estimated fair market value of the primary residence at the time of this certification, shall not be included as a
liability (except that if the amount of such indebtedness outstanding at the time of this certification exceeds the amount outstanding 60 days before such time, other than as a result of the acquisition of the primary residence, the amount of
such excess shall be included as a liability); and (iii) indebtedness that is secured by the person’s primary residence in excess of the estimated fair market value of the primary residence shall be included as a liability);
|
|
_______ (6)
|
A natural person who had annual gross income during each of the last two full calendar years in excess of US$200,000 (or together with his or her spouse in excess of US$300,000) and reasonably expects to have
annual gross income in excess of US$200,000 (or together with his or her spouse in excess of US$300,000) during the current calendar year, and no reason to believe that his or her annual gross income will not remain in excess of US$200,000 (or
that together with his or her spouse will not remain in excess of US$300,000) for the foreseeable future;
|
|
_______ (7)
|
Any director or executive officer of the Company; or
|
|
_______ (8)
|
Any entity in which all of the equity owners meet the requirements of at least one of the above categories (if this alternative is selected you must identify each equity owner
and provide statements for each demonstrating how they qualify as an accredited investor).
|
|
NAME IN FULL
|
ADDRESS
|
NUMBER OF WARRANTS
|
|
Signature of Warrant Holder
|
Signature Guaranteed
|
|
•
|
Canada and the USA: A Medallion Signature Guarantee obtained from a member of an acceptable Medallion Signature Guarantee Program (STAMP, SEMP, NYSE MSP). Many commercial banks, savings banks, credit unions,
and all broker dealers participate in a Medallion Signature Guarantee Program. The Guarantor must affix a stamp bearing the actual words “Medallion Guaranteed”, with the correct prefix covering the face value of the certificate.
|
|
•
|
Canada: A Signature Guarantee obtained from the Guarantor must affix a stamp bearing the actual words “Signature Guaranteed”. Signature Guarantees are not accepted from Treasury Branches,
Credit Unions or Caisse Populaires unless they are members of a Medallion Signature Guarantee Program. For corporate holders, corporate signing resolutions, including certificate of incumbency, are also required to accompany the transfer,
unless there is a “Signature & Authority to Sign Guarantee” Stamp affixed to the transfer (as opposed to a “Signature Guarantee” Stamp) obtained from an authorized officer of a major Canadian Schedule 1 chartered bank.
|
|
•
|
Outside North America: For holders located outside North America, present the certificates(s) and/or document(s) that require a guarantee to a local financial institution that has a
corresponding Canadian or American affiliate which is a member of an acceptable Medallion Signature Guarantee Program. The corresponding affiliate will arrange for the signature to be over-guaranteed.
|
|
Page
|
||
|
ARTICLE 1 INTERPRETATION
|
||
|
1.1 Definitions.
|
6
|
|
|
1.2 Gender and Number.
|
11
|
|
|
1.3 Headings, Etc.
|
11
|
|
|
1.4 Day not a Business Day.
|
11
|
|
|
1.5 Time of the Essence.
|
11
|
|
|
1.6 Monetary References.
|
12
|
|
|
1.7 Applicable Law.
|
12
|
|
|
1.8 Meaning of “outstanding” for Certain Purposes
|
12
|
|
|
1.9 Conflicts
|
13
|
|
|
ARTICLE 2 ISSUE OF WARRANTS
|
||
|
2.1 Creation and Issue of Warrants.
|
13
|
|
|
2.2 Terms of Warrants.
|
13
|
|
|
2.3 Warrantholder not a Shareholder.
|
13
|
|
|
2.4 Warrants to Rank Pari Passu.
|
14
|
|
|
2.5 Form of Warrants.
|
14
|
|
|
2.6 Book Entry Only Warrants.
|
14
|
|
|
2.7 Warrant Certificate.
|
16
|
|
|
2.8 Legends.
|
17
|
|
|
2.9 Register of Warrants
|
21
|
|
|
2.10 Issue in Substitution for Warrant Certificates Lost, etc.
|
21
|
|
|
2.11 Exchange of Warrant Certificates.
|
22
|
|
|
2.12 Transfer and Ownership of Warrants.
|
22
|
|
|
2.13 Cancellation of Surrendered Warrants.
|
24
|
|
|
ARTICLE 3 EXERCISE OF WARRANTS
|
||
|
3.1 Right of Exercise.
|
25
|
|
|
3.2 Warrant Exercise.
|
25
|
|
|
3.3 U.S. Restrictions; Legended Certificates
|
27
|
|
|
3.4 Transfer Fees and Taxes.
|
29
|
|
|
3.5 Warrant Agency.
|
30
|
|
|
3.6 Effect of Exercise of Warrant Certificates.
|
30
|
|
|
3.7 Partial Exercise of Warrants; Fractions.
|
31
|
|
|
3.8 Expiration of Warrants.
|
31
|
|
|
3.9 Accounting and Recording.
|
31
|
|
|
3.10 Securities Restrictions.
|
31
|
|
|
ARTICLE 4 ADJUSTMENT OF NUMBER OF COMMON SHARES AND EXERCISE PRICE
|
||
|
4.1 Adjustment of Number of Common Shares and Exercise Price.
|
32
|
|
|
4.2 Entitlement to Common Shares on Exercise of Warrant.
|
36
|
|
|
4.3 No Adjustment for Certain Transactions.
|
36
|
|
|
4.4 Determination by Independent Firm.
|
36
|
|
|
4.5 Proceedings Prior to any Action Requiring Adjustment.
|
36
|
|
|
4.6 Certificate of Adjustment.
|
37
|
|
|
4.7 Notice of Special Matters.
|
37
|
|
|
4.8 No Action after Notice.
|
37
|
|
|
4.9 Other Action.
|
37
|
|
|
4.10 Protection of Warrant Agent.
|
38
|
|
|
4.11 Participation by Warrantholder.
|
38
|
|
|
ARTICLE 5 RIGHTS OF THE CORPORATION AND COVENANTS
|
||
|
5.1 Optional Purchases by the Corporation.
|
38
|
|
|
5.2 General Covenants.
|
39
|
|
|
5.3 Warrant Agent’s Remuneration and Expenses.
|
40
|
|
|
5.4 Performance of Covenants by Warrant Agent.
|
40
|
|
|
5.5 Enforceability of Warrants.
|
41
|
|
|
ARTICLE 6 ENFORCEMENT
|
||
|
6.1 Suits by Warrantholders.
|
41
|
|
|
6.2 Suits by the Corporation.
|
41
|
|
|
6.3 Immunity of Shareholders, etc.
|
41
|
|
|
6.4 Waiver of Default.
|
42
|
|
|
ARTICLE 7 MEETINGS OF WARRANTHOLDERS
|
||
|
7.1 Right to Convene Meetings.
|
42
|
|
|
7.2 Notice.
|
42
|
|
|
7.3 Chairman.
|
43
|
|
|
7.4 Quorum.
|
43
|
|
|
7.5 Power to Adjourn.
|
43
|
|
|
7.6 Show of Hands.
|
43
|
|
|
7.7 Poll and Voting.
|
44
|
|
|
7.8 Regulations.
|
44
|
|
|
7.9 Corporation and Warrant Agent May be Represented.
|
45
|
|
|
7.10 Powers Exercisable by Extraordinary Resolution.
|
45
|
|
|
7.11 Meaning of Extraordinary Resolution.
|
46
|
|
|
7.12 Powers Cumulative.
|
46
|
|
|
7.13 Minutes.
|
47
|
|
|
7.14 Instruments in Writing.
|
47
|
|
|
7.15 Binding Effect of Resolutions.
|
47
|
|
|
7.16 Holdings by Corporation Disregarded.
|
47
|
|
|
ARTICLE 8 SUPPLEMENTAL INDENTURES
|
||
|
8.1 Provision for Supplemental Indentures for Certain Purposes.
|
48
|
|
|
8.2 Successor Entities.
|
49
|
|
|
ARTICLE 9 CONCERNING THE WARRANT AGENT
|
||
|
9.1 Indenture Legislation.
|
49
|
|
|
9.2 Rights and Duties of Warrant Agent.
|
49
|
|
|
9.3 Evidence, Experts and Advisers.
|
50
|
|
|
9.4 Documents, Monies, etc. Held by Warrant Agent.
|
51
|
|
|
9.5 Actions by Warrant Agent to Protect Interest.
|
51
|
|
|
9.6 Warrant Agent Not Required to Give Security.
|
51
|
|
|
9.7 Protection of Warrant Agent.
|
51
|
|
|
9.8 Replacement of Warrant Agent; Successor by Merger.
|
52
|
|
|
9.9 Conflict of Interest.
|
53
|
|
|
9.10 Acceptance of Agency
|
54
|
|
|
9.11 Warrant Agent Not to be Appointed Receiver.
|
54
|
|
|
9.12 Authorization to Carry on Business
|
54
|
|
|
9.13 Warrant Agent Not Required to Give Notice of Default.
|
54
|
|
|
9.14 Anti-Money Laundering.
|
54
|
|
|
9.15 Compliance with Privacy Code.
|
55
|
|
|
9.16 Securities Exchange Commission Certification.
|
55
|
|
|
ARTICLE 10 GENERAL
|
||
|
10.1 Notice to the Corporation and the Warrant Agent.
|
56
|
|
|
10.2 Notice to Warrantholders.
|
57
|
|
|
10.3 Ownership of Warrants.
|
57
|
|
|
10.4 Counterparts and Electronic Copies.
|
57
|
|
|
10.5 Satisfaction and Discharge of Indenture.
|
58
|
|
|
10.6 Provisions of Indenture and Warrants for the Sole Benefit of Parties and Warrantholders.
|
58
|
|
|
10.7 Warrants Owned by the Corporation - Certificate to be Provided.
|
58
|
|
|
10.8 Severability
|
59
|
|
|
10.9 Force Majeure
|
59
|
|
|
10.10 Assignment, Successors and Assigns
|
59
|
|
|
10.11 Rights of Rescission and Withdrawal for Holders
|
59
|
|
|
SCHEDULE “A” FORM OF WARRANT CERTIFICATE
|
||
|
SCHEDULE “B” FORM OF DECLARATION FOR REMOVAL OF LEGEND
|
|
|
FLORA GROWTH CORP., a corporation existing under the laws
of the Province of Ontario (the “Corporation”),
|
|
|
- and -
|
|
|
TSX TRUST COMPANY, a trust company existing under the laws
of Canada (the “Warrant Agent”)
|
|
(a)
|
a Warrant Certificate that has been partially exercised or exchanged shall be deemed to be outstanding only to the extent of the unexercised or
unexchanged, as the case may be, part of the Warrants evidenced thereby;
|
|
(b)
|
where a Warrant Certificate has been issued in substitution for a Warrant Certificate that has been lost, stolen or destroyed, only one of them
shall be counted for the purpose of determining the Warrants outstanding; and
|
|
(c)
|
for the purpose of any provision of this Indenture entitling holders of outstanding Warrants to vote, sign consents, requests or other instruments
or take any other action under this Indenture, Warrants owned legally or beneficially by the Corporation shall be disregarded, except that:
|
|
(i)
|
for the purpose of determining whether the Warrant Agent will be protected in relying on any vote, consent, request or other instrument or other
action, only the Warrants of which the Warrant Agent has written notice that they are so owned shall be so disregarded; and
|
|
(ii)
|
Warrants so owned that have been pledged in good faith other than to the Corporation shall not be so disregarded if the pledgee establishes to the
satisfaction of the Warrant Agent, relying on the written statement of the Corporation, the pledgee's right to vote the Warrants in the pledgee's discretion free from the control of the Corporation to the terms of the pledge.
|
|
(1)
|
Subject to the applicable conditions for exercise set out in Article 3 having been satisfied and subject to adjustment in accordance with
Article 4, each Warrant shall entitle each Warrantholder thereof, upon exercise at any time after the Issue Date and prior to the Expiry Time, to acquire one Common Share upon payment of the Exercise Price.
|
|
(2)
|
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 Common Shares. Any fractional Warrants or Common Shares shall be rounded down to the nearest whole number and the holder shall not be entitled to any compensation in respect of any fractional Warrant or Common Share which
is not issued.
|
|
(3)
|
Each Warrant shall entitle the holder thereof to such other rights and privileges as are set forth in this Indenture.
|
|
(4)
|
|
(1)
|
Registration of beneficial interests in and transfers of Warrants held by the Depository shall be made only through the book entry registration
system and no Warrant Certificates shall be issued in respect of such Warrants except where physical certificates evidencing ownership in such securities are required or as set out herein or as may be requested by the Depository, as
determined by the Corporation, from time to time. Except as provided in this Section 2.6, owners of beneficial interests in any CDS Global Warrants shall not be entitled to have Warrants registered in their names and shall not receive or be
entitled to receive Warrants in definitive form or to have their names appear in the register referred to in Section 2.9 herein. Notwithstanding any terms set out herein, Warrants having the legend set forth in Section 2.8(1) herein may not
be held in the name of the Depository or in the form of Uncertificated Warrants.
|
|
(a)
|
the Depository notifies the Corporation that it is unwilling or unable to continue to act as depository in connection with the Book Entry Only
Warrants and the Corporation is unable to locate a qualified successor;
|
|
(b)
|
the Corporation determines that the Depository is no longer willing, able or qualified to discharge properly its responsibilities as holder of the
CDS Global Warrants and the Corporation is unable to locate a qualified successor;
|
|
(c)
|
the Depository ceases to be a clearing agency or otherwise ceases to be eligible to be a depository and the Corporation is unable to locate a
qualified successor;
|
|
(d)
|
the Corporation determines that the Warrants shall no longer be held as Book Entry Only Warrants through the Depository;
|
|
(e)
|
such right is required by applicable law, as determined by the Corporation and the Corporation’s Counsel; or
|
|
(f)
|
the Warrant is to be Authenticated to or for the account or benefit of a person in the United States or a U.S. Person (in which case, the Warrant
Certificate shall contain the legend set forth in Section 2.8(1), if applicable);
|
|
(3)
|
Subject to the provisions of this Section 2.6, any transfer of CDS Global Warrants for Warrants which are not CDS Global Warrants may be made in
whole or in part in accordance with the provisions of Section 2.12, mutatis mutandis. All such Warrants issued in exchange for a CDS Global Warrant or any portion thereof shall be registered in such names as the Depository for such CDS
Global Warrants shall direct and shall be entitled to the same benefits and subject to the same terms and conditions (except insofar as they relate specifically to CDS Global Warrants or to any legend required by Section 2.8(1) and the
restrictions set out in such legend) as the CDS Global Warrants or portion thereof surrendered upon such exchange.
|
|
(4)
|
Every Warrant that is Authenticated upon registration or transfer of a CDS Global Warrant, or in exchange for or in lieu of a CDS Global Warrant
or any portion thereof, whether pursuant to this Section 2.6, or otherwise, shall be Authenticated in the form of, and shall be, a CDS Global Warrant, unless such Warrant is registered in the name of a person other than the Depository for
such CDS Global Warrant or a nominee thereof.
|
|
(5)
|
Notwithstanding anything to the contrary in this Indenture, subject to applicable law, the CDS Global Warrant will be issued as an Uncertificated
Warrant, unless otherwise requested in writing by the Depository or the Corporation.
|
|
(6)
|
The rights of beneficial owners of Warrants who hold securities entitlements in respect of the Warrants through the book entry registration system
shall be limited to those established by applicable law and agreements between the Depository and the Book Entry Only Participants and between such Book Entry Only Participants and the beneficial owners of Warrants who hold securities
entitlements in respect of the Warrants through the book entry registration system, and such rights must be exercised through a Book Entry Only Participant in accordance with the rules and procedures of the Depository.
|
|
(7)
|
Notwithstanding anything herein to the contrary, neither the Corporation nor the Warrant Agent nor any agent thereof shall have any responsibility
or liability for:
|
|
(a)
|
the electronic records maintained by the Depository relating to any ownership interests or any other interests in the Warrants or the depository
system maintained by the Depository, or payments made on account of any ownership interest or any other interest of any person in any Warrant represented by an electronic position in the book entry registration system (other than the
Depository or its nominee);
|
|
(b)
|
maintaining, supervising or reviewing any records of the Depository or any Book Entry Only Participant relating to any such interest; or
|
|
(c)
|
any advice or representation made or given by the Depository or those contained herein that relate to the rules and regulations of the Depository
or any action to be taken by the Depository on its own direction or at the direction of any Book Entry Only Participant.
|
|
(8)
|
The Corporation may terminate the application of this Section 2.6 in its sole discretion in which case all Warrants shall be evidenced by Warrant
Certificates registered in the name of a person other than the Depository.
|
|
(1)
|
For Warrants issued in certificated form, the form of certificate representing Warrants shall be substantially as set out in Schedule “A” attached
hereto or such other form as is authorized from time to time by the Warrant Agent. Each Warrant Certificate shall be Authenticated manually on behalf of the Warrant Agent. Each Warrant Certificate shall be signed by either of the Chief
Executive Officer or Chief Financial Officer of the Corporation whose signature shall appear on the Warrant Certificate and may be printed, lithographed or otherwise mechanically reproduced thereon and, in such event, certificates so signed
are as valid and binding upon the Corporation as if it had been signed manually. Any Warrant Certificate which has the applicable signatures as hereinbefore provided shall be valid notwithstanding that one or more of the persons whose
signature is printed, lithographed or mechanically reproduced no longer holds office at the date of issuance of such certificate. The Warrant Certificates may be engraved, printed or lithographed, or partly in one form and partly in
another, as the Warrant Agent may determine.
|
|
(2)
|
The Warrant Agent shall Authenticate Uncertificated Warrants by completing its Internal Procedures and the Corporation shall, and hereby
acknowledges that it shall, thereupon be deemed to have duly and validly issued such Uncertificated Warrants under this Indenture. Such Authentication shall be conclusive evidence that such Uncertificated Warrant has been duly issued
hereunder and that the holder or holders are entitled to the benefits of this Indenture. The register shall be final and conclusive evidence as to all matters relating to Uncertificated Warrants with respect to which this Indenture requires
the Warrant Agent to maintain records or accounts. In case of differences between the register at any time and any other time the register at the later time shall be controlling, absent manifest error and such Uncertificated Warrants are
binding on the Corporation.
|
|
(3)
|
Any Warrant Certificate validly issued in accordance with the terms of this Indenture in effect at the time of issue of such Warrant Certificate
shall, subject to the terms of this Indenture and applicable law, validly entitle the holder to acquire Common Shares, notwithstanding that the form of such Warrant Certificate may not be in the form currently required by this Indenture.
|
|
(4)
|
No Warrant shall be considered issued and shall be valid or obligatory or shall entitle the holder thereof to the benefits of this Indenture,
until it has been Authenticated by the Warrant Agent. Authentication by the Warrant Agent shall not be construed as a representation or warranty by the Warrant Agent as to the validity of this Indenture or of such Warrant Certificates or
Uncertificated Warrants (except the due Authentication thereof) or as to the performance by the Corporation of its obligations under this Indenture and the Warrant Agent shall in no respect be liable or answerable for the use made of the
Warrants or any of them or of the consideration thereof. Authentication by the Warrant Agent shall be conclusive evidence as against the Corporation that the Warrants so Authenticated have been duly issued hereunder and that the holder
thereof is entitled to the benefits of this Indenture.
|
|
(5)
|
No Certificated Warrant shall be considered issued and shall be obligatory or shall entitle the holder thereof to the benefits of this Indenture,
until it has been Authenticated by manual signature by or on behalf of the Warrant Agent. Such Authentication on any such Certificated Warrant shall be conclusive evidence that such Certificated Warrant is duly Authenticated and is valid
and a binding obligation of the Corporation and that the holder is entitled to the benefits of this Indenture.
|
|
(6)
|
No Uncertificated Warrant shall be considered issued and shall be obligatory or shall entitle the holder thereof to the benefits of this
Indenture, until it has been Authenticated by entry on the register of the particulars of the Uncertificated Warrant. Such entry on the register of the particulars of an Uncertificated Warrant shall be conclusive evidence that such
Uncertificated Warrant is a valid and binding obligation of the Corporation and that the beneficial owner is entitled to the benefits of this Indenture.
|
|
(3)
|
Each CDS Global Warrant if issued as a Certificated Warrant originally issued in Canada and held by the Depository and each
Warrant Certificate issued in exchange therefor or in substitution thereof shall bear the following legend or such variations thereof as the Corporation may prescribe from time to time:
|
|
(4)
|
Notwithstanding any other provisions of this Indenture, in processing and registering transfers of Warrants, no duty or responsibility whatsoever shall rest upon
the Warrant Agent to determine the compliance by any transferor or transferee with the terms of the legend contained in subsections 2.8(1), 2.8(2) or 2.8(3), or with the relevant securities laws or regulations, including, without
limitation, Regulation S and the Warrant Agent shall be entitled to assume that all transfers that are processed in accordance with this Indenture are legal and proper.
|
|
(a)
|
the name and address of the holder of the Warrants, the date of Authentication thereof and the number of Warrants;
|
|
(b)
|
whether such Warrant is a Certificated Warrant or an Uncertificated Warrant and, if a Warrant Certificate, the unique number or code assigned to
and imprinted thereupon and, if an Uncertificated Warrant, the unique number or code assigned thereto if any;
|
|
(c)
|
whether such Warrant has been cancelled; and
|
|
(d)
|
a register of transfers in which all transfers of Warrants and the date and other particulars of each transfer shall be entered.
|
|
(1)
|
If any Warrant Certificate becomes mutilated or is lost, destroyed or stolen, the Corporation, subject to applicable law, shall issue and
thereupon the Warrant Agent shall certify and deliver, a new Warrant Certificate of like tenor, and bearing the same legend, if applicable, as the one mutilated, lost, destroyed or stolen in exchange for and in place of and upon
cancellation of such mutilated Warrant Certificate, or in lieu of and in substitution for such lost, destroyed or stolen Warrant Certificate, and the substituted Warrant Certificate shall be in a form approved by the Warrant Agent and the
Warrants evidenced thereby shall be entitled to the benefits hereof and shall rank equally in accordance with its terms with all other Warrants issued or to be issued hereunder.
|
|
(2)
|
The applicant for the issue of a new Warrant Certificate pursuant to this Section 2.10 shall bear the cost of the issue thereof and in case of
mutilation shall, as a condition precedent to the issue thereof, deliver to the Warrant Agent the mutilated Warrant Certificate, and in case of loss, destruction or theft shall, as a condition precedent to the issuance thereof, furnish to
the Corporation and to the Warrant Agent such evidence of ownership and of the loss, destruction or theft of the Warrant Certificate so lost, destroyed or stolen as shall be satisfactory to the Corporation and to the Warrant Agent, in their
sole discretion, acting reasonably, and such applicant shall also be required to furnish an indemnity and surety bond in amount and form satisfactory to the Corporation and the Warrant Agent, in their sole discretion, and shall pay the
reasonable charges of the Corporation and the Warrant Agent in connection therewith.
|
|
(1)
|
Any one or more Warrant Certificates representing any number of Warrants may, upon compliance with the reasonable requirements of the Warrant
Agent (including compliance with applicable securities legislation), be exchanged for one or more other Warrant Certificates representing the same aggregate number of Warrants, and bearing the same legend, if applicable, as represented by
the Warrant Certificate or Warrant Certificates so exchanged.
|
|
(2)
|
Warrant Certificates may be exchanged only at the Warrant Agency or at any other place that is designated by the Corporation with the approval of
the Warrant Agent. Any Warrant Certificate tendered for exchange shall be cancelled and surrendered to the Warrant Agent.
|
|
(1)
|
The Warrants may only be transferred on the register kept by the Warrant Agent at the Warrant Agency by the holder or its legal representatives or
its attorney duly appointed by an instrument in writing in form and execution satisfactory to the Warrant Agent only upon:
|
|
|
(a) |
in the case of a Warrant Certificate, surrendering to the Warrant Agent at the Warrant Agency the Warrant Certificates representing the Warrants to be transferred together with a duly
executed transfer form as set forth in Schedule “A” attached hereto (together with a declaration for removal of legend or opinion of counsel, if required by Sections 2.8(1));
|
|
|
(b) |
in the case of Book Entry Only Warrants, in accordance with procedures prescribed by the Depository under the book entry registration system;
|
|
|
(c) |
in the case of DRS Advices, in accordance with the procedures prescribed by the Warrant Agent; and
|
|
|
(d) |
upon compliance with:
|
|
(i)
|
the conditions herein;
|
|
(ii)
|
such reasonable requirements as the Warrant Agent may prescribe; and
|
|
(2)
|
If a Warrant Certificate tendered for transfer bears the legend set forth in 2.8(1), the Warrant Agent shall not register such transfer unless the
transferor has provided the Warrant Agent with the Warrant Certificate and such securities may be transferred only (A) to the Corporation, (B) outside the United States in accordance with Rule 904 of Regulation S and in compliance with
applicable local securities laws and regulations, if available, (C) within the United States in accordance with the exemption from registration under the U.S. Securities Act provided by (i) Rule 144 or (ii) Rule 144A and in compliance with
applicable local laws and regulations, if available, or (D) with the prior written consent of the Corporation pursuant to another exemption from registration under the U.S. Securities Act and applicable state securities laws after first
providing to the Corporation and the Warrant Agent (1) in the case of a transfer pursuant to clause B, a declaration in the form of Schedule “B” attached hereto together with such additional documentation as the Corporation and the Warrant
Agent may reasonably prescribe, OR (2) in the case of a transfer pursuant to clause C(i) or clause D, an opinion of U.S. counsel of recognized standing in form and substance satisfactory to the Corporation and the Warrant Agent that the
offer, sale, pledge or other transfer does not require registration under the U.S. Securities Act or applicable state securities laws, or after first providing to the Corporation such other evidence of compliance with applicable securities
laws as the Corporation shall reasonably request. Warrants and, if applicable, Warrant Shares, issued to, or for the account or benefit of, a U.S. Purchaser (and any certificates issued in replacement thereof or in substitution therefor)
must be issued only in individually certificated form.
|
|
(3)
|
Subject to the provisions of this Indenture and applicable law, the Warrantholder shall be entitled to the rights and privileges attaching to the
Warrants, and the issue of Common Shares by the Corporation upon the exercise of Warrants in accordance with the terms and conditions herein contained shall discharge all responsibilities of the Corporation and the Warrant Agent with
respect to such Warrants and neither the Corporation nor the Warrant Agent shall be bound to inquire into the title of any such holder.
|
|
(4)
|
The Corporation will be entitled, and may direct the Warrant Agent, to refuse to recognize any transfer, or enter the name of any transferee, of
any Warrant on the register kept by the Warrant Agent, if such transfer would constitute a violation of securities laws or the rules, regulations or policies of any regulatory authority having jurisdiction. The Warrant Agent is entitled to
assume compliance with all applicable Securities Laws unless otherwise notified in writing by the Corporation. No duty shall rest with the Warrant Agent to determine compliance of the transferee or transferor of any Warrant with securities
laws.
|
|
(5)
|
The Corporation will be entitled, and may direct the Warrant Agent, to refuse to allow the exercise of Warrants, in whole or in part, and the
Corporation and the Warrant Agent acting on the direction of the Corporation will not give effect to any such exercise, if, after giving effect to such exercise, the Warrantholder, together with any person or company acting jointly or in
concert with the Warrantholder (the “Joint Actors”) would in the aggregate beneficially own, or exercise control or direction over that number of voting securities of the Corporation which is 20% or
greater of the total issued and outstanding voting securities of the Corporation, immediately after giving effect to such exercise. For greater certainty, a Warrantholder may not exercise their Warrants in whole or in part, and the Warrant
Agent and the Corporation will not give effect to any such exercise, if, after giving effect to such exercise, the Holder, together with its Joint Actors, would be deemed to hold a number of voting securities sufficient to materially affect
the control of the Corporation.
|
|
(6)
|
Notwithstanding any provision to the contrary contained herein, no Shares will be issued pursuant to the exercise of any Warrant if the issuance
of such securities would constitute a violation of the securities laws of any applicable jurisdiction, and the certificates evidencing the Shares thereby issued may bear such legend as may, in the opinion of legal counsel to the Company, be
necessary in order to avoid a violation of any securities laws of any applicable jurisdiction or to comply with the requirements of any Recognized Stock Exchange on which the Shares of the Company are listed, provided that, at any time, in
the opinion of legal Counsel to the Company, such legends are no longer necessary in order to avoid a violation of any such laws, or the holder of any such legended certificate, at that holder's expense, provides the Company with evidence
satisfactory in form and substance to the Company (which may include an opinion of legal counsel satisfactory to the Company) to the effect that such holder is entitled to sell or otherwise transfer such Shares in a transaction in which
such legends are not required, such legended certificate may thereafter be surrendered to the Company in exchange for a certificate which does not bear such legend.
|
|
(3)
|
Payment representing the aggregate Exercise Price must be provided to the appropriate office of the Book Entry Only Participant in a manner
acceptable to it. A notice in form acceptable to the Book Entry Only Participant and payment from such beneficial holder should be provided to the Book Entry Only Participant sufficiently in advance so as to permit the Book Entry Only
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 the Warrant Agent will execute the exercise by issuing to the Depository through the book entry registration system the Common 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 and/or the Book Entry Only Participant exercising the Warrants on
its behalf.
|
|
(4)
|
By causing a Book Entry Only Participant to deliver notice to the Depository, a Warrantholder shall be deemed to have irrevocably surrendered his
or her Warrants so exercised and appointed such Book Entry Only Participant to act as his or her exclusive settlement agent with respect to the exercise and the receipt of Common Shares in connection with the obligations arising from such
exercise.
|
|
(5)
|
Any notice which the Depository determined to be incomplete, not in proper form or not duly executed shall for all purposes be void and of no
effect and the exercise to which it relates shall be considered for all purposes not to have been exercised thereby. A failure by a Book Entry Only Participant to exercise or to give effect to the settlement thereof in accordance with the
Warrantholder’s instructions will not give rise to any obligations or liability on the part of the Corporation or Warrant Agent to the Book Entry Only Participant or the beneficial owner.
|
|
(6)
|
The Exercise Notice referred to in this Section 3.2 shall be signed by the Warrantholder, or its executors or administrators or other legal
representatives or an attorney of the Warrantholder, duly appointed by an instrument in writing satisfactory to the Warrant Agent but such Exercise Notice need not be executed by the Depository.
|
|
(7)
|
Any exercise referred to in this Section 3.2 shall require that the entire Exercise Price for Common Shares subscribed for must be paid at the
time of subscription and such Exercise Price and original Exercise Notice executed by the Warrantholder or the Confirmation from the Depository must be received by the Warrant Agent prior to the Expiry Time.
|
|
(8)
|
Notwithstanding the foregoing in this Section 3.2, Warrants may only be exercised pursuant to this Section 3.2 by or on behalf of a Warrantholder
(excluding the Depository), who is permitted to and makes one of the certifications set forth on the Exercise Notice and delivers, if applicable, any opinion or other evidence as required by the Corporation.
|
|
(9)
|
If the form of Exercise Notice set forth in the Warrant Certificate shall have been amended, the Corporation shall cause the amended Exercise
Notice to be forwarded to all Warrantholders.
|
|
(10)
|
Exercise Notices and Confirmations must be delivered to the Warrant Agent at any time during the Warrant Agent’s actual business hours on any Business Day prior to the Expiry Time. Any
Exercise Notice or Confirmations received by the Warrant Agent after business hours on any Business Day will be deemed to have been received by the Warrant Agent on the next following Business Day.
|
|
(11)
|
Any Warrant with respect to which an Exercise Notice or Confirmation is not received by the Warrant Agent before the Expiry Time shall be deemed to have expired and become void and all
rights with respect to such Warrants shall terminate and be cancelled.
|
|
(iv)
|
|
(2)
|
No certificates representing Common Shares will be registered or delivered to an address in the United States unless the Warrantholder complies
with the requirements set forth in subsection 3.3(1)(ii), 3.3(1)(iii) or 3.3(1)(iv) and, in the case of 3.3(1)(iv), the Corporation has confirmed in writing to the Warrant Agent that the opinion of counsel and such other evidence required
by the Corporation is reasonably satisfactory to the Corporation. The certificates representing any Common Shares issued in connection with the exercise of Warrants pursuant to subsection 3.3(1)(ii), 3.3(1)(iii) or 3.3(1)(iv) shall bear the
legend set forth in subsection 3.3(3) of this Indenture. Certificates representing Common Shares issued in connection with the exercise of Warrants pursuant to subsection 3.3(1)(i) shall not bear the legend set forth in subsection 3.3(3).
Warrant Shares, issued to, or for the account or benefit of, a U.S. Purchaser that is an “accredited investor” (and any certificates issued in replacement thereof or in substitution therefor) must be issued only in individually certificated
form.
|
|
(3)
|
Certificates representing Common Shares issued upon the exercise of Warrants which bear the legend set forth in 2.8(1) and which are issued and
delivered pursuant to Section 3.3(1)(ii), 3.3(1)(iii) and 3.3(1)(iv) (and each certificate issued in exchange therefor or in substitution thereof) shall bear the following legend:
|
|
|
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE COMPANY THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY; (B) TO NON-“U.S. PERSONS” (AS DEFINED IN
RULE 902 OF REGULATION S PROMULGATED UNDER THE U.S. SECURITIES ACT) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S PROMULGATED UNDER THE U.S. SECURITIES ACT AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND
REGULATIONS; (C) IN ACCORDANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE 144 PROMULGATED THEREUNDER, IF AVAILABLE, AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS; OR (D) IN A
TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF CLAUSE (C) OR (D), THE SELLER FURNISHES TO THE COMPANY AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE COMPANY TO SUCH EFFECT. THE PRESENCE OF THIS LEGEND MAY IMPAIR THE ABILITY OF THE HOLDER HEREOF TO EFFECT “GOOD DELIVERY” OF THE SECURITIES REPRESENTED HEREBY ON A CANADIAN STOCK EXCHANGE.”
|
|
(4)
|
Common Shares issued upon the exercise of Warrants prior to the expiration of applicable hold periods shall bear or be deemed to bear the
following legend:
|
|
(5)
|
Any unexercised Warrants must be re-issued in certificated form and bear the legend set out in Section 2.8(1) and Section 2.8(2), as applicable.
|
|
(1)
|
Upon the exercise of Warrants pursuant to and in compliance with Section 3.2 and subject to Section 3.3 and Section 3.4, the Common Shares to be
issued pursuant to the Warrants exercised shall be deemed to have been issued and the person or persons to whom such Common Shares are to be issued upon exercise of the Warrants shall be deemed to have become the holder or holders of such
Common Shares as of the Exercise Date, unless the registers shall be closed on such date, in which case the Common Shares subscribed for shall be deemed to have been issued and such person or persons deemed to have become the holder or
holders of record of such Common Shares, on the date on which such registers are reopened. It is hereby understood that in order for persons to whom Common Shares are issued to become holders of Common Shares of record on the Exercise Date,
beneficial holders must commence the exercise process sufficiently in advance so that the Warrant Agent is in receipt of all items of exercise at least one Business Day prior to such Exercise Date.
|
|
(2)
|
As soon as practicable, and in any event no later than within 10 Business Days after the Exercise Date with respect to a Warrant, the Warrant
Agent shall cause to be delivered or mailed to the person or persons in whose name or names the Warrant is registered or, if so specified in writing by the holder, cause to be delivered to such person or persons at the Warrant Agency where
the Warrant Certificate was surrendered, a certificate or certificates for the appropriate number of Common Shares subscribed for, or any other appropriate evidence of the issuance of Common Shares to such person or persons in respect of
Common Shares issued under the book entry registration system.
|
|
(1)
|
The holder of any Warrants may exercise his right to acquire a number of whole Common Shares less than the aggregate number which the holder is
entitled to acquire. In the event of any exercise of a number of Warrants less than the number which the holder is entitled to exercise, the holder of Warrants upon such exercise shall, in addition, be entitled to receive, without charge
therefor, a new Warrant Certificate(s), bearing the same legend, if applicable, or other appropriate evidence of Warrants, in respect of the balance of the Warrants held by such holder and which were not then exercised.
|
|
(2)
|
Notwithstanding anything herein contained including any adjustment provided for in Article 4, the Corporation shall not be required, upon the
exercise of any Warrants, to issue fractions of Common Shares. Warrants may only be exercised in a sufficient number to acquire whole numbers of Common Shares. Any fractional Common Shares 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 Common Share which is not issued.
|
|
(1)
|
|
(1)
|
The Warrant Agent shall promptly account to the Corporation with respect to Warrants exercised, and shall promptly forward to the Corporation (or
into an account or accounts of the Corporation with the bank or trust company designated by the Corporation for that purpose), all monies received by the Warrant Agent on the subscription of Common Shares through the exercise of Warrants
and any securities or other instruments, from time to time received by the Warrant Agent shall be received for the benefit of, and shall be segregated and kept apart by the Warrant Agent for, the Warrantholders and the Corporation as their
interests may appear.
|
|
(2)
|
The Warrant Agent shall record the particulars of Warrants exercised, which particulars shall include the names and addresses of the persons who
become holders of Common Shares on exercise and the Exercise Date, in respect thereof. The Warrant Agent shall provide such particulars in writing to the Corporation within five Business Days of any request by the Corporation therefor.
|
|
(i)
|
|
(ii)
|
|
(iii)
|
|
(b)
|
if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or
warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities
|
|
|
less the excess, if any, of the fair market value on such record date, as determined by the Directors (whose determination shall be
conclusive), of such securities or other assets so issued or distributed over the fair market value of any consideration received therefor by the Corporation from the holders of the Common Shares, and of which the denominator shall be
the total number of Common Shares outstanding on such record date multiplied by such Current Market Price; and Common Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of
any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that such distribution is not so made, the Exercise Price shall be readjusted to the Exercise Price which would then be
in effect if such record date had not been fixed. Upon any adjustment of the Exercise Price pursuant to this Section 4.1(c), the Exchange Rate will be adjusted immediately after such record date so that it will equal the rate determined
by multiplying the Exchange Rate in effect on such record date by a fraction, of which the numerator shall be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting
from such adjustment;
|
|
|
the Warrantholders to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as nearly as
may reasonably be, with respect to any shares, other securities or property to which a Warrantholder is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Warrant
Agent pursuant to the provisions of this Section 4.1(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 8 hereof. Any indenture entered into between the Corporation, any successor to the Corporation or
such purchasing body corporate, partnership, trust or other entity and the Warrant Agent shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 4.1 and which
shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, sales or conveyances;
|
|
(f)
|
in any case in which Section 4.1(a)(iii), Section 4.1(b) or Section 4.1(c) require that an adjustment be made to the Exercise Price, no such
adjustment shall be made if the Warrantholders of the outstanding Warrants receive, subject to the approval of the Recognized Stock Exchange on which the Common Shares are listed if required, the rights or warrants referred to in
Section 4.1(a)(iii), Section 4.1(b) or the shares, rights, options, warrants, evidences of indebtedness or assets referred to in Section 4.1(c), as the case may be, in such kind and number as they would have received if they had been
holders of Common Shares on the applicable record date or effective date, as the case may be, by virtue of their outstanding Warrant having then been exercised into Common Shares at the Exercise Price in effect on the applicable record date
or effective date, as the case may be;
|
|
(h)
|
after any adjustment pursuant to this Section 4.1, the term “Common Shares” where used in this Indenture shall be interpreted to mean securities
of any class or classes which, as a result of such adjustment and all prior adjustments pursuant to this Section 4.1, the Warrantholder is entitled to receive upon the exercise of his Warrant, and the number of Common Shares indicated by
any exercise made pursuant to a Warrant shall be interpreted to mean the number of Common Shares or other property or securities a Warrantholder is entitled to receive, as a result of such adjustment and all prior adjustments pursuant to
this Section 4.1, upon the full exercise of a Warrant.
|
|
(a)
|
at any time be under any duty or responsibility to any Warrantholder to determine whether any facts exist which may require any adjustment
contemplated by Section 4.1, or with respect to the nature or extent of any such adjustment when made, or with respect to the method employed in making the same;
|
|
(b)
|
be accountable with respect to the validity or value (or the kind or amount) of any Common Shares or of any other securities or property which may
at any time be issued or delivered upon the exercise of the rights attaching to any Warrant;
|
|
(c)
|
be responsible for any failure of the Corporation to issue, transfer or deliver Common Shares or certificates for the same upon the surrender of
any Warrants for the purpose of the exercise of such rights or to comply with any of the covenants contained in this Article; and
|
|
(d)
|
incur any liability or be in any way responsible for the consequences of any breach on the part of the Corporation of any of the representations,
warranties or covenants herein contained or of any acts of the directors, officers, employees, agents or servants of the Corporation.
|
|
(a)
|
it will reserve and keep available a sufficient number of Common Shares for the purpose of enabling it to satisfy its obligations to issue Common
Shares upon the exercise of the Warrants;
|
|
(b)
|
it will cause the Common Shares from time to time acquired pursuant to the exercise of the Warrants to be duly issued and delivered in accordance
with the Warrants and the terms hereof;
|
|
(c)
|
all Common Shares which shall be issued upon exercise of the right to acquire provided for herein shall be fully paid and non-assessable;
|
|
(d)
|
it will use reasonable commercial efforts to maintain its existence and carry on its business in the ordinary course, provided that this clause
shall not be construed as limiting or restricting the Corporation from agreeing to a consolidation, amalgamation, arrangement, takeover bid or merger that would result in the Corporation winding up, dissolving or ceasing to exist, so long
as the holders of Common Shares receive securities of an entity which is listed on a Recognized Stock Exchange, or cash, or the holders of Common Shares have approved the transaction in accordance with the requirements of applicable
corporate and securities laws;
|
|
(e)
|
it will make all requisite filings under applicable Canadian and U.S. securities legislation, including those necessary to remain a reporting
issuer not in default in each of the provinces and other jurisdictions where it is or becomes a reporting issuer;
|
|
(f)
|
it will give notice to the Warrant Agent and Warrantholders of a default under the terms of the Indenture which remains unrectified for a period
of 5 Business Days;
|
|
(g)
|
generally, it will well and truly perform and carry out all of the acts or things to be done by it as provided in this Indenture;
|
|
(h)
|
it will engage in cannabis-related activities in Canada only in accordance with the Cannabis Act
(Canada) and all other applicable laws in Canada;
|
|
(i)
|
it does not and will not invest or engage (directly or indirectly) in any business or activity that is focused on serving the non-medical or
medical cannabis market internationally unless and until such time as the production and sale of non-medical and/or medical cannabis, as applicable, becomes legal under the applicable laws in the respective international jurisdiction;
|
|
(j)
|
it does not and will not invest or engage (directly or indirectly) in any business or activity that is focused on serving the medical or
non-medical cannabis market in the United States unless and until such time as the production and sale of medical and/or non-medical cannabis, as applicable, becomes legal under applicable state and federal laws in the United States;
|
|
(k)
|
it does not and will not specifically target or derive (or reasonably expect to derive) revenues or funds from any of the prohibited activities
described in items (h) and (i), above, unless and until such time that any such activities become legal under all applicable laws in the United States and/or internationally, as applicable; and
|
|
(l)
|
it will provide the Warrant Agent with reasonable prior notice if it decides to engage in any of the activities described in items (h), (i) or
(j), above, and the Corporation agrees that the Warrant Agent may, in its sole discretion, immediately terminate any contract for services between the Corporation and the Warrant Agent upon receipt of any information relating to the
Corporation’s cannabis-related business activities, or as otherwise permitted under any such contract for service.
|
|
(a)
|
the Warrantholders of not less than 51% of the Warrants then outstanding shall have power (in addition to the powers exercisable by Extraordinary
Resolution) by requisition in writing to instruct the Warrant Agent to waive any default hereunder and the Warrant Agent shall thereupon waive the default upon such terms and conditions as shall be prescribed in such requisition; or
|
|
(b)
|
the Warrant Agent shall have power to waive any default hereunder upon such terms and conditions as the Warrant Agent may deem advisable, on the
advice of Counsel, if, in the Warrant Agent’s opinion, based on the advice of Counsel, the same shall have been cured or adequate provision made therefor;
|
|
(1)
|
On every Extraordinary Resolution, and on any other question submitted to a meeting and after a vote by show of hands when demanded by the
chairman or by one or more of the Warrantholders acting in person or by proxy and holding in the aggregate at least 5% of all the Warrants then outstanding, a poll shall be taken in such manner as the chairman shall direct. Questions other
than those required to be determined by Extraordinary Resolution shall be decided by a majority of the votes cast on the poll.
|
|
(2)
|
On a show of hands, every person who is present and entitled to vote, whether as a Warrantholder or as proxy for one or more absent
Warrantholders, or both, shall have one vote. On a poll, each Warrantholder present in person or represented by a proxy duly appointed by instrument in writing shall be entitled to one vote in respect of each Warrant then held or
represented by it. A proxy need not be a Warrantholder. The chairman of any meeting shall be entitled, both on a show of hands and on a poll, to vote in respect of the Warrants, if any, held or represented by him or her.
|
|
(1)
|
The Warrant Agent, or the Corporation with the approval of the Warrant Agent, may from time to time make and from time to time vary such
regulations as it shall think fit for:
|
|
(a)
|
the setting of the record date for a meeting for the purpose of determining Warrantholders entitled to receive notice of and to vote at the
meeting;
|
|
(b)
|
the deposit of instruments appointing proxies at such place and time as the Warrant Agent, the Corporation or the Warrantholders convening the
meeting, as the case may be, may in the notice convening the meeting direct;
|
|
(c)
|
the deposit of instruments appointing proxies at some approved place or places other than the place at which the meeting is to be held and
enabling particulars of such instruments appointing proxies to be mailed or telecopied before the meeting to the Corporation or to the Warrant Agent at the place where the same is to be held and for the voting of proxies so deposited as
though the instruments themselves were produced at the meeting;
|
|
(d)
|
the form of the instrument of proxy; and
|
|
(e)
|
generally for the calling of meetings of Warrantholders and the conduct of business thereat.
|
|
(2)
|
Any regulations so made shall be binding and effective and the votes given in accordance therewith shall be valid and shall be counted. Save as
such regulations may provide, the only persons who shall be recognized at any meeting as a Warrantholder, or be entitled to vote or be present at the meeting in respect thereof (subject to Section 7.9), shall be Warrantholders or proxies of
Warrantholders.
|
|
(a)
|
to agree to any modification, abrogation, alteration, compromise or arrangement of the rights of Warrantholders or the Warrant Agent in its
capacity as warrant agent hereunder (subject to the Warrant Agent’s prior consent, acting reasonably) or on behalf of the Warrantholders against the Corporation whether such rights arise under this Indenture or otherwise;
|
|
(b)
|
to amend, alter or repeal any Extraordinary Resolution previously passed or sanctioned by the Warrantholders;
|
|
(c)
|
to direct or to authorize the Warrant Agent, subject to Section 9.2(2) hereof, to enforce any of the covenants on the part of the Corporation
contained in this Indenture or to enforce any of the rights of the Warrantholders in any manner specified in such Extraordinary Resolution or to refrain from enforcing any such covenant or right;
|
|
(d)
|
to waive, and to direct the Warrant Agent to waive, any default on the part of the Corporation in complying with any provisions of this Indenture
either unconditionally or upon any conditions specified in such Extraordinary Resolution;
|
|
(e)
|
to restrain any Warrantholder from taking or instituting any suit, action or proceeding against the Corporation for the enforcement of any of the
covenants on the part of the Corporation in this Indenture or to enforce any of the rights of the Warrantholders;
|
|
(f)
|
to direct any Warrantholder who, as such, has brought any suit, action or proceeding to stay or to discontinue or otherwise to deal with the same
upon payment of the costs, charges and expenses reasonably and properly incurred by such Warrantholder in connection therewith;
|
|
(g)
|
to assent to any change in or omission from the provisions contained in this Indenture or any ancillary or supplemental instrument which may be
agreed to by the Corporation, and to authorize the Warrant Agent to concur in and execute any ancillary or supplemental indenture embodying the change or omission;
|
|
(h)
|
with the consent of the Corporation, such consent not to be unreasonably withheld, to remove the Warrant Agent or its successor in office and to
appoint a new warrant agent or warrant agents to take the place of the Warrant Agent so removed; and
|
|
(i)
|
to assent to any compromise or arrangement with any creditor or creditors or any class or classes of creditors, whether secured or otherwise, and
with holders of any shares or other securities of the Corporation.
|
|
(2)
|
If, at the meeting at which an Extraordinary Resolution is to be considered, Warrantholders holding at least 25% of the aggregate number of all
then outstanding Warrants are not present in person or by proxy within 30 minutes after the time appointed for the meeting, then the meeting, if convened by Warrantholders or on a Warrantholders’ Request, shall be dissolved; but in any
other case it shall stand adjourned to such day, being not less than 15 or more than 60 days later, and to such place and time as may be appointed by the chairman. Not less than 14 days’ prior notice shall be given of the time and place of
such adjourned meeting in the manner provided for in Section 10.2. Such notice shall state that at the adjourned meeting the Warrantholders present in person or by proxy shall form a quorum but it shall not be necessary to set forth the
purposes for which the meeting was originally called or any other particulars. At the adjourned meeting the Warrantholders present in person or by proxy shall form a quorum and may transact the business for which the meeting was originally
convened and a resolution proposed at such adjourned meeting and passed by the requisite vote as provided in Section 7.11(1) shall be an Extraordinary Resolution within the meaning of this Indenture notwithstanding that Warrantholders
holding at least 25% of the aggregate number of all the then outstanding Warrants are not present in person or by proxy at such adjourned meeting.
|
|
(3)
|
Subject to Section 7.14, votes on an Extraordinary Resolution shall always be given on a poll and no demand for a poll on an Extraordinary
Resolution shall be necessary.
|
|
(a)
|
providing for the issuance of additional Warrants hereunder and any consequential amendments hereto as may be required by the Warrant Agent
relying on the advice of Counsel;
|
|
(b)
|
setting forth any adjustments resulting from the application of the provisions of Article 4;
|
|
(c)
|
adding to the provisions hereof such additional covenants and enforcement provisions as, in the opinion of Counsel, are necessary or advisable in
the premises, provided that the same are not in the opinion of the Warrant Agent, relying on the advice of Counsel, prejudicial to the interests of the Warrantholders;
|
|
(d)
|
giving effect to any Extraordinary Resolution passed as provided in Section 7.11;
|
|
(e)
|
making such provisions not inconsistent with this Indenture as may be necessary or desirable with respect to matters or questions arising
hereunder or for the purpose of obtaining a listing or quotation of the Warrants on any stock exchange, provided that such provisions are not, in the opinion of the Warrant Agent, relying on the advice of Counsel, prejudicial to the
interests of the Warrantholders;
|
|
(f)
|
adding to or altering the provisions hereof in respect of the transfer of Warrants, making provision for the exchange of Warrants, and making any
modification in the form of the Warrant Certificates which does not affect the substance thereof;
|
|
(g)
|
modifying any of the provisions of this Indenture, including relieving the Corporation from any of the obligations, conditions or restrictions
herein contained, provided that such modification or relief shall be or become operative or effective only if, in the opinion of the Warrant Agent, relying on the advice of Counsel, such modification or relief in no way prejudices any of
the rights of the Warrantholders or of the Warrant Agent, and provided further that the Warrant Agent may in its sole discretion decline to enter into any such supplemental indenture which in its opinion may not afford adequate protection
to the Warrant Agent when the same shall become operative; and
|
|
(h)
|
for any other purpose not inconsistent with the terms of this Indenture, including the correction or rectification of any ambiguities, defective
or inconsistent provisions, errors, mistakes or omissions herein, provided that in the opinion of the Warrant Agent, relying on the advice of Counsel, the rights of the Warrant Agent and of the Warrantholders are in no way prejudiced
thereby.
|
|
(1)
|
If and to the extent that any provision of this Indenture limits, qualifies or conflicts with a mandatory requirement of Applicable Legislation,
such mandatory requirement shall prevail.
|
|
(2)
|
The Corporation and the Warrant Agent agree that each will, at all times in relation to this Indenture and any action to be taken hereunder,
observe and comply with and be entitled to the benefits of Applicable Legislation.
|
|
(1)
|
In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Warrant Agent shall act honestly and in good
faith and exercise that degree of care, diligence and skill that a reasonably prudent warrant agent would exercise in comparable circumstances. No provision of this Indenture shall be construed to relieve the Warrant Agent from liability
for its own gross negligent action, wilful misconduct, bad faith or fraud under this Indenture.
|
|
(3)
|
The Warrant Agent may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Warrantholders,
at whose instance it is acting to deposit with the Warrant Agent the Warrants Certificates held by them, for which Warrant Certificates the Warrant Agent shall issue receipts.
|
|
(4)
|
Every provision of this Indenture that by its terms relieves the Warrant Agent of liability or entitles it to rely upon any evidence submitted to
it is subject to the provisions of Applicable Legislation.
|
|
(1)
|
In addition to the reports, certificates, opinions and other evidence required by this Indenture, the Corporation shall furnish to the Warrant
Agent such additional evidence of compliance with any provision hereof, and in such form, as may be prescribed by Applicable Legislation or as the Warrant Agent may reasonably require by written notice to the Corporation.
|
|
(2)
|
In the exercise of its rights and duties hereunder, the Warrant Agent may, if it is acting in good faith, rely as to the truth of the statements
and the accuracy of the opinions expressed in statutory declarations, opinions, reports, written requests, consents, or orders of the Corporation, certificates of the Corporation or other evidence furnished to the Warrant Agent pursuant to
a request of the Warrant Agent, provided that such evidence complies with Applicable Legislation and that the Warrant Agent complies with Applicable Legislation and that the Warrant Agent examines the same and determines that such evidence
complies with the applicable requirements of this Indenture.
|
|
(3)
|
Whenever it is provided in this Indenture or under Applicable Legislation that the Corporation shall deposit with the Warrant Agent resolutions,
certificates, reports, opinions, requests, orders or other documents, it is intended that the truth, accuracy and good faith on the effective date thereof and the facts and opinions stated in all such documents so deposited shall, in each
and every such case, be conditions precedent to the right of the Corporation to have the Warrant Agent take the action to be based thereon.
|
|
(4)
|
The Warrant Agent may employ or retain such Counsel, accountants, appraisers or other experts or advisers as it may reasonably require for the
purpose of discharging its duties hereunder and may pay reasonable remuneration for all services so performed by any of them, without taxation of costs of any Counsel, and shall not be responsible for any misconduct or negligence on the
part of any such experts or advisers who have been appointed with due care by the Warrant Agent.
|
|
(5)
|
The Warrant Agent may act and rely and shall be protected in acting and relying in good faith on the opinion or advice of or information obtained
from any Counsel, accountant, appraiser, engineer or other expert or adviser, whether retained or employed by the Corporation or by the Warrant Agent, in relation to any matter arising in the administration of the agency hereof.
|
|
(6)
|
Proof of the execution of an instrument in writing, including a Warrantholders' Request, by any Warrantholder may be made by the certificate of a
notary, solicitor or commissioner for oaths, or other officer with similar powers, that the person signing such instrument acknowledged to him the execution thereof, or by an affidavit of a witness to such execution or in any other manner
which the Warrant Agent may consider adequate and in respect of a corporate Warrantholder, shall include a certificate of incumbency of such Warrantholder together with a certified resolution authorizing the person who signs such instrument
to sign such instrument.
|
|
(7)
|
Whenever Applicable Legislation requires that evidence referred to in subsection 9.3(3) be in the form of a statutory declaration, the Warrant
Agent may accept such statutory declaration in lieu of a certificate of the Corporation required by any provision hereof. Any such statutory declaration may be made by any one or more duly authorized representative of the Corporation.
|
|
(a)
|
the Warrant Agent shall not be liable for or by reason of any statements of fact or recitals in this Indenture or in the Warrant Certificates
(except the representation contained in Section 9.9) or be required to verify the same, but all such statements or recitals are and shall be deemed to be made by the Corporation;
|
|
(b)
|
nothing herein contained shall impose any obligation on the Warrant Agent to see to or to require evidence of the registration or filing (or
renewal thereof) of this Indenture or any instrument ancillary or supplemental hereto;
|
|
(c)
|
the Warrant Agent shall not be bound to give notice to any person or persons of the execution hereof;
|
|
(d)
|
the Warrant Agent shall not incur any liability or responsibility whatever or be in any way responsible for the consequence of any breach on the
part of the Corporation of any of its covenants herein contained or of any acts of any directors, officers, employees, agents or servants of the Corporation;
|
|
(e)
|
the Corporation hereby indemnifies and agrees to hold harmless the Warrant Agent, its affiliates, their current and former officers, directors,
employees, agents, successors and assigns from and against any and all liabilities, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements, including legal fees and disbursements of whatever kind and nature
which may at any time be imposed on or incurred by or asserted against the Warrant Agent, whether groundless or otherwise, arising from or out of any act, omission or error of the Warrant Agent, provided that the Corporation shall not be
required to indemnify the Warrant Agent in the event of the gross negligence, wilful misconduct or fraud of the Warrant Agent, and this provision shall survive the resignation or removal of the Warrant Agent or the termination or discharge
of this Indenture;
|
|
(f)
|
notwithstanding the foregoing or any other provision of this Indenture, any liability of the Warrant Agent, other than gross negligence, wilful
misconduct and fraud, shall be limited, in the aggregate, to the amount of annual retainer fees paid by the Corporation to the Warrant Agent under this Indenture in the 12 months immediately prior to the Warrant Agent receiving the first
notice of the claim. Notwithstanding any other provision of this Indenture, and whether such losses or damages are foreseeable or unforeseeable, the Warrant Agent shall not be liable under any circumstances whatsoever for any (a) breach by
any other party of securities law or other rule of any securities regulatory authority, (b) lost profits or (c) special, indirect, incidental, consequential, exemplary, aggravated or punitive losses or damages; and
|
|
(g)
|
the forwarding of a cheque or the sending of funds by wire transfer by the Warrant Agent will satisfy and discharge the liability of any amounts
due to the extent of the sum represented thereby unless such cheque is not honoured on presentation, provided that in the event of the non-receipt of such cheque by the payee, or the loss or destruction thereof, the Warrant Agent, upon
being furnished with reasonable evidence of such non-receipt, loss or destruction and indemnity reasonably satisfactory to it, will issue to such payee a replacement cheque for the amount of such cheque.
|
|
(2)
|
Upon the appointment of a successor Warrant Agent, the Corporation shall promptly notify the Warrantholders thereof in the manner provided for in
Section 10.2.
|
|
(3)
|
Any Warrant Certificates Authenticated but not delivered by a predecessor Warrant Agent may be Authenticated by the successor Warrant Agent in the
name of the predecessor or successor Warrant Agent.
|
|
(4)
|
Any corporation in to which the Warrant Agent may be merged or consolidated or amalgamated or to which all or substantially all of its corporate
trust business is sold or otherwise transferred, or any corporation resulting therefrom to which the Warrant Agent shall be a party, or any corporation succeeding to substantially the corporate trust business of the Warrant Agent shall be
the successor to the Warrant Agent hereunder without any further act on its part or any of the parties hereto, provided that such corporation would be eligible for appointment as successor Warrant Agent under Section 9.8(1).
|
|
(2)
|
Subject to Section 9.9(1), the Warrant Agent, in its personal or any other capacity, may buy, lend upon and deal in securities of the Corporation
and generally may contract and enter into financial transactions with the Corporation without being liable to account for any profit made thereby.
|
|
(1)
|
Each party to this Indenture other than the Warrant Agent hereby represents to the Warrant Agent that any account to be opened by, or interest to
be held by the Warrant Agent in connection with this Indenture, for or to the credit of such party, either (i) is not intended to be used by or on behalf of any third party; or (ii) is intended to be used by or on behalf of a third party,
in which case such party hereto agrees to complete and execute forthwith a declaration in the Warrant Agent’s prescribed form as to the particulars of such third party.
|
|
(2)
|
The Warrant Agent shall retain the right not to act and shall not be liable for refusing to act if, due to a lack of information or for any other
reason whatsoever, the Warrant Agent, in its sole judgment, determines that such act might cause it to be in non-compliance with any applicable anti-money laundering or anti-terrorist legislation, economic sanction, regulation or guideline.
Further, should the Warrant Agent, in its sole judgment, determine at any time that its acting under this Indenture has resulted in its being in non-compliance with any applicable anti-money laundering or anti-terrorist legislation,
economic sanction, regulation or guideline, then it shall have the right to resign on 10 days written notice to the other parties to this Indenture, provided (i) that the Warrant Agent’s written notice shall describe the circumstances of
such non-compliance; and (ii) that if such circumstances are rectified to the Warrant Agent’s satisfaction within such 10 day period, then such resignation shall not be effective.
|
|
(a)
|
to provide the services required under this Indenture and other services that may be requested from time to time;
|
|
(b)
|
to help the Warrant Agent manage its servicing relationships with such individuals;
|
|
(c)
|
to meet the Warrant Agent’s legal and regulatory requirements; and
|
|
(d)
|
if Social Insurance Numbers are collected by the Warrant Agent, to perform tax reporting and to assist in verification of an individual’s identity
for security purposes.
|
|
(1)
|
|
(a)
|
If to the Corporation:
Flora Growth Corp.
65 Queen Street West, Suite 800
Toronto, Ontario M5H 2M5
Attention: Damian Lopez
Email: damian.lopez@floragrowth.ca
If to the Warrant Agent:
Attention: Vice-President, Trust Services
Facsimile: (416) 361-0470 |
|
(2)
|
The Corporation or the Warrant Agent, as the case may be, may from time to time notify the other in the manner provided in Section 10.1(1) of a
change of address which, from the effective date of such notice and until changed by like notice, shall be the address of the Corporation or the Warrant Agent, as the case may be, for all purposes of this Indenture.
|
|
(3)
|
If, by reason of a strike, lockout or other work stoppage, actual or threatened, involving postal employees, any notice to be given to the Warrant
Agent or to the Corporation hereunder could reasonably be considered unlikely to reach its destination, such notice shall be valid and effective only if it is delivered to the named officer of the party to which it is addressed, as provided
in Section 10.1(1), or given by fax, email or other means of prepaid, transmitted and recorded communication.
|
|
(1)
|
Unless otherwise provided herein, notice to the Warrantholders under the provisions of this Indenture shall be valid and effective if delivered or
sent by ordinary post addressed to such holders at their post office addresses appearing on the register hereinbefore mentioned and shall be deemed to have been effectively received and given on the date of delivery or, if mailed, on the
third Business Day following the date of mailing such notice. In the event that Warrants are held in the name of the Depository, a copy of such notice shall also be sent by electronic communication to the Depository and shall be deemed
received and given on the day it is so sent.
|
|
(2)
|
If, by reason of a strike, lockout or other work stoppage, actual or threatened, involving postal employees, any notice to be given to the
Warrantholders hereunder could reasonably be considered unlikely to reach its destination, such notice shall be valid and effective only if it is delivered to such Warrantholders to the address for such Warrantholders contained in the
register maintained by the Warrant Agent or such notice may be given, at the Corporation’s expense, by means of publication in the Globe and Mail, National Edition, or any other English language daily newspaper or newspapers of general
circulation in Canada, in each two successive weeks, and any so notice published shall be deemed to have been received and given on the latest date the publication takes place.
|
|
(3)
|
Accidental error or omission in giving notice or accidental failure to mail notice to any Warrantholder will not invalidate any action or
proceeding founded thereon.
|
|
(a)
|
the date by which there shall have been delivered to the Warrant Agent for exercise or cancellation all Warrants theretofore Authenticated
hereunder, in the case of Certificated Warrants or by way of standard processing through the book entry only system in the case of a CDS Global Warrant; and
|
|
(b)
|
the Expiry Time;
|
|
(a)
|
the names (other than the name of the Corporation) of the Warrantholders which, to the knowledge of the Corporation, are owned by or held for the
account of the Corporation; and
|
|
(b)
|
the number of Warrants owned legally or beneficially by the Corporation;
|
|
FLORA GROWTH CORP.
|
||
|
By:/s/Damian Lopez
|
||
|
Name: Damian Lopez
|
||
|
Title: President & CEO
|
||
|
TSX TRUST COMPANY
|
||
|
By: /s/Brett Higgs
|
||
|
Authorized Signatory
|
||
|
By: /s/Donald Crawford
|
||
|
Authorized Signatory
|
||
| TO: |
TSX TRUST COMPANY
|
|
|
||
|
(Name of Seller)
|
||
|
|
||
|
By:
|
||
| Name: | ||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|