Curaleaf Holdings, Inc 6-K, filed Dec 19, 2023
Curaleaf Holdings, Inc. (CURLF)
About this 6-K
Curaleaf Holdings, Inc filed this 6-K on December 19, 2023.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO
RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of December, 2023.
Commission File Number: 333-249081
CURALEAF HOLDINGS, INC.
(Exact Name of Registrant as Specified in Charter)
666 Burrard Street, Suite 1700, Vancouver, British Columbia V6C 2X8
Canada
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F.
Form 20-F ¨ Form 40-F x
INCORPORATION BY REFERENCE
Exhibit 99.9 to this Form 6-K of Curaleaf Holdings, Inc. (the “Company”) is hereby incorporated by reference into the Registration Statement on Form F-10 (File No. 333-269109) of the Company, as amended or supplemented.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| CURALEAF HOLDINGS, INC. | |||
| (Registrant) | |||
| Date: | December 19, 2023 | By: | /s/ Peter Clateman |
| Name: | Peter Clateman | ||
| Title: | Chief Legal Officer | ||
EXHIBIT INDEX
Exhibit 99.1
Curaleaf Announced
Reorganization
of its U.S. Operations in Connection with TSX Listing
NEW YORK, December 8, 2023 – Curaleaf Holdings, Inc. (CSE: CURA / OTCQX: CURLF) ("Curaleaf" or the "Company"), a leading international provider of consumer products in cannabis, today announced that, in connection with the previously announced conditional approval of the Toronto Stock Exchange (“TSX”) to list the Company’s subordinate voting shares (the “Subordinate Voting Shares”) on the TSX (the “TSX Listing”), the Company proceeded with the necessary internal reorganization (the “Reorganization”) of its U.S. operations. Among other things, Curaleaf, Inc. (“Curaleaf USA”), a wholly owned subsidiary of the Company entered into a subscription agreement (the “Subscription Agreement”) with a third party investor which is not affiliated with the Company, Curaleaf USA or the control person of the Company (the “Investor”), pursuant to which Curaleaf USA issued to the Investor one (1) share of Class A voting and non-participating common stock (the “Class A Voting Stock”), for an aggregate subscription amount of US$1 million (the “Investment”).
Prior to the Investment, the Company held common stock of Curaleaf USA, representing 100% of the issued and outstanding shares of Curaleaf USA. Concurrently with the closing of the Investment and in accordance with the seventh amended and restated certificate of incorporation of Curaleaf USA filed immediately prior to the execution of the Subscription Agreement, such common stock has been automatically exchanged for 999 shares of Class B non-voting and participating common stock (the “Class B Non-Voting Stock”). Following the closing of the Investment in accordance with the terms of the Subscription Agreement, the Investor now holds all of the issued and outstanding Class A Voting Stock and voting rights of Curaleaf USA. The Company holds all of the issued and outstanding Class B Non-Voting Stock, which represent 99.9% of the economic ownership of Curaleaf USA, on an as-converted basis.
The Class B Non-Voting Stock does not provide for voting rights but are exchangeable into shares of Class C voting and participating common stock (the “Class C Voting Stock”) of Curaleaf USA at any time. As a result of the limited rights associated with the Class B Non-Voting Stock, Curaleaf and Curaleaf USA entered into, concurrently with the closing of the Investment, a protection agreement (the “Protection Agreement”) providing for certain negative covenants in order to preserve the value of the Class B Non-Voting Stock held by the Company until such time as the Class B Non-Voting Stock is converted into Class C Voting Stock by the Company, including, among others, prohibitions on Curaleaf USA’s organizational documents amendments, changes to the authorized share capital of Curaleaf USA, changes to the Curaleaf USA’s board of directors, material changes to the business conducted by Curaleaf USA or the making of loans or capital expenditures above certain specified thresholds, the whole except with the prior written consent of Curaleaf or as required by applicable laws.
Concurrently with the Investment, as more fully described in the Consent Solicitation Statement and Information Circular of the Company dated July 14, 2023 and the Management Information Circular of the Company dated August 23, 2023, respectively, and as previously approved by the Company’s securityholders, the Company implemented (A) certain amendments to the indenture among the Company and Odyssey Trust Company dated as of December 15, 2021 (as supplemented from time to time, the “Indenture”) governing the notes thereunder (the “Indenture Amendments”) in order to facilitate the implementation of the Reorganization, and (B) certain amendments to the Company’s articles (the “Articles Amendments”) in order to: (i) create a new class of non-voting and non-participating shares in the capital of the Company exchangeable at the holder’s option into Subordinate Voting Shares (the “Non-Voting Exchangeable Shares”) and authorize the issuance of an unlimited number of Non-Voting Exchangeable Shares; and (ii) restate the rights of the Subordinate Voting Shares to provide for a conversion feature whereby each Subordinate Voting Share may at any time, at the holder’s option, be converted into one (1) Non-Voting Exchangeable Share. The Non-Voting Exchangeable Shares do not carry voting rights, rights to receive dividends or other rights upon dissolution of the Company, and are considered “restricted securities” within the meaning of such term under applicable Canadian securities laws.
The Articles Amendments aim to provide Company’s shareholders with the option to convert their Subordinate Voting Shares into Non-Voting Exchangeable Shares if such shareholders prefer to hold non-voting and non-participating shares given the uncertainty and complexity related to cannabis regulations in the United States.
Concurrently with the closing of the Investment, the Company and the Investor, as shareholders of Curaleaf USA, also entered into a shareholders’ agreement (the “Shareholders’ Agreement”) with respect to Curaleaf USA, to establish, among other things, the rights and obligations arising out of or in connection with the ownership of the Class A Voting Stock and the Class B Non-Voting Stock. Under the Shareholders’ Agreement, Curaleaf USA holds a call right to repurchase all of the Class A Voting Stock issuable to the Investor at any time, and the Investor has the right to appoint a director to the Curaleaf USA’s board of directors and a put right exercisable following the occurrence of certain stated events and after the five (5) year anniversary of the Shareholders’ Agreement subject to certain parameters to ensure the maintaining of the TSX Listing.
The particulars of the Reorganization, as well as the material terms of the Subscription Agreement, the Protection Agreement and the Shareholders’ Agreement will be more fully described in a material change report to be filed by the Company with the Canadian Securities Administrators and which will be available under the Company’s profile on SEDAR+ at www.sedarplus.ca. Copies of the Indenture, as amended, the amended and restated articles of Curaleaf, the Shareholders Agreement and the Protection Agreement will also be made available under the Company’s profile on SEDAR+.
About Curaleaf Holdings
Curaleaf Holdings, Inc. (CSE: CURA) (OTCQX: CURLF) ("Curaleaf") is a leading international provider of consumer products in cannabis with a mission to enhance lives by cultivating, sharing and celebrating the power of the plant. As a high-growth cannabis company known for quality, expertise and reliability, the Company and its brands, including Curaleaf, Select, and Grassroots provide industry-leading service, product selection and accessibility across the medical and adult-use markets. In the United States, Curaleaf brands are sold in 17 states with operations encompassing 147 dispensaries and employing more than 5,200 team members. Curaleaf International is the largest vertically integrated cannabis company in Europe with a unique supply and distribution network throughout the European market, bringing together pioneering science and research with cutting-edge cultivation, extraction and production. Curaleaf is listed on the Canadian Securities Exchange under the symbol CURA and trades on the OTCQX market under the symbol CURLF. For more information, please visit https://ir.curaleaf.com
FORWARD-LOOKING STATEMENTS
This news release contains "forward-looking information" and "forward-looking statements" within the meaning of Canadian securities laws and United States securities laws (collectively, "forward-looking statements"). Forward-looking statements are neither historical facts nor assurances of future performance. Instead, they are based on management's current beliefs, expectations or assumptions regarding the future of the business, plans and strategies, operational results and other future conditions of the Company. In addition, the Company may make or approve certain statements in future filings with Canadian securities regulatory authorities, in press releases, or in oral or written presentations by representatives of the Company that are not statements of historical fact and may also constitute forward-looking statements. All statements, other than statements of historical fact, made by the Company that address activities, events or developments that the Company expects or anticipates will or may occur in the future are forward-looking statements, including, but not limited to, statements preceded by, followed by or that include words such as "assumptions", "assumes", "guidance", "outlook", "may", "will", "would", "could", "should", "believes", "estimates", "projects", "potential", "expects", "plans", "intends", "anticipates", "targeted", "continues", "forecasts", "designed", "goal", or the negative of those words or other similar or comparable words. In particular, but without limiting the foregoing, disclosure in this news release as well as statements regarding the Company's intention and timing to complete the Investment, the Reorganization and the TSX Listing; the Company’s ability to satisfy all listing and regulatory requirements of the TSX and obtain TSX approval for the TSX Listing;; the anticipated benefits to the Company and Curaleaf USA from the Investment, the Reorganization and the TSX Listing and other expectations for other economic, business and/or competitive factors are forward-looking statements. These forward-looking statements speak only as at the date they are made and are based on information currently available and on the then current expectations.
Holders of securities of the Company are cautioned that forward-looking statements are not based on historical facts but instead are based on reasonable assumptions and estimates of management of the Company at the time they were provided or made and involve known and unknown risks, uncertainties and other factors which may cause the actual results, performance or achievements of the Company, as applicable, to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements, including, but not limited to, risks and uncertainties related to the Investment, the Reorganization and the TSX Listing set forth in the prospectus supplement of the Company dated September 28, 2023 to the short form base shelf prospectus of the Company dated December 30, 2022, which is available under the Company’s profile on SEDAR+ at www.sedarplus.ca; as well as those risk factors discussed under "Risk Factors" in the Company's Annual Information Form dated May 1, 2023 for the fiscal year ended December 31, 2022, and additional risks described in the Company's Annual Management's Discussion and Analysis for the year ended December 31, 2022 (both of which documents have been filed on the Company's profile on SEDAR+ at www.sedarplus.ca and on EDGAR at www.sec.gov), and as described from time to time in documents filed by the Company with Canadian securities regulatory authorities. There is no guarantee the Company will complete the TSX Listing as currently proposed, which remain subject to certain closing conditions, including the Company meeting the listing conditions and requirements of the TSX. As a result of the Reorganization, the Company is now subject to significant restrictions on the conduct of the U.S.-based operations of the Company, which such restrictions could have a material adverse effect on the Company, its business and its results of operation.
The purpose of forward-looking statements is to provide the reader with a description of management's expectations, and such forward-looking statements may not be appropriate for any other purpose. Although the Company believes that the expectations reflected in such forward-looking statements are reasonable, it can give no assurance that such expectations will prove to have been correct. A number of factors could cause actual events, performance or results to differ materially from what is projected in the forward-looking statements. You should not place undue reliance on forward-looking statements contained in this press release. Such forward-looking statements are made as of the date of this news release. The Company undertakes no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by applicable law. The Company's forward-looking statements are expressly qualified in their entirety by this cautionary statement.
INVESTOR CONTACT
Curaleaf Holdings, Inc.
Camilo Lyon, Chief Investment Officer
IR@curaleaf.com
MEDIA CONTACT
Curaleaf Holdings, Inc.
Tracy Brady, SVP Corporate Communications
media@curaleaf.com
Exhibit 99.2
Curaleaf Begins Adult Use Wholesale Operations in New York
The Company’s Select and Grassroots Brands Are Now Available at Legal Adult Use Dispensaries in the Empire State
NEW YORK, Dec. 12, 2023 – Curaleaf Holdings, Inc. (CSE: CURA) (OTCQX: CURLF) ("Curaleaf" or the "Company"), a leading international provider of consumer cannabis products, today announced that it has commenced sales of wholesale adult use products across the state of New York as a result of receiving approval from the New York State Office of Cannabis Management (“OCM”) on Friday, December 8.
As of December 12, Curaleaf will offer five premium vape, edible and flower offerings from its Select and Grassroots brand portfolios, including Select Briq Essentials, Select X Bites, Select Nano Bites and Grassroots premium flower. The Company’s wholesale partners include MJ Dispensary, a CAURD licensee which will include Curaleaf products as a part of its Grand Opening event at 4:20 pm ET today, December 12 at 900 Jefferson Rd Suite 902. Rochester, NY. Future products will be produced using local New York-grown flower, including distillate from New York based hemp farm Open Mind Organics (OMO). Led by David Falkowski, a third generation farmer who became one of the first licensed hemp farmers in the state, this year OMO solidified its position as one of the leading adult use cultivators and processors for cannabis in New York.
“Curaleaf has served New York’s medical market with high quality cannabis products and service since 2017, and we are eager to provide that same level of care for the state’s adult use customers,” said Matt Darin, CEO of Curaleaf. “We are pleased that the OCM has taken the next step to allow existing registered operators the opportunity to participate in the adult use market, and we look forward to being among the first as we continue to prioritize our medical patients. We are happy to be working with businesses of all sizes across the state, from hemp farmers to our retail partners, including CAURD licensees, and we aim for statewide distribution by end of year.”
"On our opening day at MJ Dispensary, it's a monumental milestone to be the first licensed New York adult use retail partner to offer our customers access to Select and Grassroots products," said Ryan Martin, CEO of MJ Dispensary, a New York CAURD licensee. “This partnership with Curaleaf is an excellent example of the ways in which the New York market can work together moving forward between large businesses like Curaleaf, and CAURD licensees like MJ Dispensary. Our intention is to support customers with a wide array of products, and we feel we've accomplished that in part due to this partnership."
Curaleaf will join New York’s adult use market with corporate responsibility, inclusivity in hiring practices and community impact at the forefront of operations. The Company’s Rooted in Good program works to address the consequences of the War on Drugs by partnering with and funding community organizations that tackle these issues. Curaleaf will enact its Company-wide workforce and educational initiatives, including a commitment to employing at least 10 percent of all new New York hires from populations touched by low-level cannabis-related offenses and hosting retail activations focused on social justice and equity.
For more information on the Company’s adult use product availability in New York, please visit www.selectelevated.com/find-us and www.grassrootscannabis.com/find-us.
About Curaleaf Holdings
Curaleaf Holdings, Inc. (CSE: CURA) (OTCQX: CURLF) (“Curaleaf”) is a leading international provider of consumer products in cannabis with a mission to enhance lives by cultivating, sharing and celebrating the power of the plant. As a high-growth cannabis company known for quality, expertise and reliability, the Company and its brands, including Curaleaf, Select, and Grassroots provide industry-leading service, product selection and accessibility across the medical and adult-use markets. In the United States, our brands are sold in 17 states with operations encompassing 147 dispensaries and employing more than 5,200 team members. Curaleaf International is the largest vertically integrated cannabis company in Europe with a unique supply and distribution network throughout the European market, bringing together pioneering science and research with cutting-edge cultivation, extraction and production. Curaleaf is listed on the Canadian Securities Exchange under the symbol CURA and trades on the OTCQX market under the symbol CURLF. For more information, please visit https://ir.curaleaf.com.
Forward Looking Statements
This media advisory contains forward-looking statements and forward-looking information within the meaning of applicable securities laws. These statements relate to future events or future performance. All statements other than statements of historical fact may be forward–looking statements or information. Generally, forward-looking statements and information may be identified by the use of forward-looking terminology such as "plans", "expects" or, "proposed", "is expected", "intends", "anticipates", or "believes", or variations of such words and phrases, or by the use of words or phrases which state that certain actions, events or results may, could, would, or might occur or be achieved. More particularly and without limitation, this news release contains forward-looking statements and information concerning the launch of Curaleaf's wholesale operations in New York. Such forward-looking statements and information reflect management's current beliefs and are based on assumptions made by and information currently available to the company with respect to the matter described in this new release. Forward-looking statements involve risks and uncertainties, which are based on current expectations as of the date of this release and subject to known and unknown risks and uncertainties that could cause actual results to differ materially from those expressed or implied by such statements. Additional information about these assumptions and risks and uncertainties is contained under "Risk Factors and Uncertainties" in the Company's latest annual information form filed May 1, 2023, which is available under the Company's SEDAR profile at http://www.sedar.com, and in other filings that the Company has made and may make with applicable securities authorities in the future. Forward-looking statements contained herein are made only as to the date of this press release and we undertake no obligation to update or revise any forward-looking statements whether as a result of new information, future events or otherwise, except as required by law. We caution investors not to place considerable reliance on the forward looking statements contained in this press release. The Canadian Securities Exchange has not reviewed, approved or disapproved the content of this news release.
INVESTOR CONTACT
Curaleaf Holdings, Inc.
Camilo Lyon, Chief Investment Officer
IR@curaleaf.com
MEDIA CONTACT
Curaleaf Holdings, Inc.
Tracy Brady, SVP Corporate Communications
media@curaleaf.com
Exhibit 99.3
Curaleaf Announces Fulfilment of TSX Listing Conditions and Date of Commencement of Trading on the TSX
COMPANY EXECUTIVES IN TORONTO TO RING OPENING BELL ON DECEMBER 14TH
NEW YORK, (December 12, 2023) – Curaleaf Holdings, Inc. (CSE: CURA / OTCQX: CURLF) ("Curaleaf" or the "Company"), a leading international provider of consumer products in cannabis, today announced that it has complied with all the conditions listed in the conditional listing approval delivered by the Toronto Stock Exchange (the “TSX”) in connection with the listing of its subordinate voting shares (the “Shares”) on the TSX.
Executive Chairman Boris Jordan said, “Curaleaf’s official listing on the Toronto Stock Exchange marks an incredible day not just for our company, but the entire global cannabis industry,” said Executive Chairman Boris Jordan. “As Curaleaf is now eligible for inclusion into indexes such as TSX and MSCI, this uplisting will ultimately provide significantly higher access to an even broader set of institutional investors from around the world and increase our stock’s liquidity long term. I am as confident as ever in the direction we are headed and I am grateful to the TSX, our shareholders, partners, and everyone in the company for helping get us here today. We look forward to being in Toronto for tomorrow’s opening bell.”
“This is a monumental week for our team, and for the entire Curaleaf community,” said Curaleaf CEO Matt Darin. “With greater access to global financial institutions and resources for our business, our team is eager to reach new heights as we continue cultivating, distributing, and retailing the best possible cannabis products to consumers the world over. I want to thank everyone – especially our 5200 team members - who have contributed to this achievement. I am thrilled to begin the new year as we continue to work in the best interest of the Company and our stakeholders and explore new ways to enhance lives by cultivating, sharing and celebrating the power of the plant."
The Company further announced that the Shares will commence trading on the TSX on December 14, 2023 under the ticker symbol “CURA” (the “TSX Listing”). No action is required in order to continue trading the Subordinate Voting Shares as a result of the TSX Listing. There will be no change in the Company’s CUSIP.
In connection with the TSX Listing, the Shares will be delisted from the Canadian Securities Exchange (the “CSE”) at the close of markets on December 13, 2023.
Curaleaf will celebrate this milestone by ringing the opening bell of the TSX in Toronto on Thursday, December 14, 2023. The Company’s Chief Executive Officer, Matt Darin, and the Company’s Executive Chairman, Boris Jordan, will be joined by members of Curaleaf’s senior management team at the event.
This news release does not constitute an offer to sell or a solicitation to buy such securities of the Company, and shall not constitute an offer, solicitation or sale in any state or jurisdiction in which an offer, solicitation or sale would be unlawful.
About Curaleaf Holdings
Curaleaf Holdings, Inc. (CSE: CURA) (OTCQX: CURLF) ("Curaleaf") is a leading international provider of consumer products in cannabis with a mission to enhance lives by cultivating, sharing and celebrating the power of the plant. As a high-growth cannabis company known for quality, expertise and reliability, the Company and its brands, including Curaleaf, Select, and Grassroots provide industry-leading service, product selection and accessibility across the medical and adult-use markets. In the United States, Curaleaf brands are sold in 17 states with operations encompassing 147 dispensaries and employing more than 5,200 team members. Curaleaf International is the largest vertically integrated cannabis company in Europe with a unique supply and distribution network throughout the European market, bringing together pioneering science and research with cutting-edge cultivation, extraction and production. Curaleaf is listed on the Canadian Securities Exchange under the symbol CURA and trades on the OTCQX market under the symbol CURLF. For more information, please visit https://ir.curaleaf.com
FORWARD-LOOKING STATEMENTS
This news release contains "forward-looking information" and "forward-looking statements" within the meaning of Canadian securities laws and United States securities laws (collectively, "forward-looking statements"). Forward-looking statements are neither historical facts nor assurances of future performance. Instead, they are based on management's current beliefs, expectations or assumptions regarding the future of the business, plans and strategies, operational results and other future conditions of the Company. In addition, the Company may make or approve certain statements in future filings with Canadian securities regulatory authorities, in press releases, or in oral or written presentations by representatives of the Company that are not statements of historical fact and may also constitute forward-looking statements. All statements, other than statements of historical fact, made by the Company that address activities, events or developments that the Company expects or anticipates will or may occur in the future are forward-looking statements, including, but not limited to, statements preceded by, followed by or that include words such as "assumptions", "assumes", "guidance", "outlook", "may", "will", "would", "could", "should", "believes", "estimates", "projects", "potential", "expects", "plans", "intends", "anticipates", "targeted", "continues", "forecasts", "designed", "goal", or the negative of those words or other similar or comparable words. In particular, but without limiting the foregoing, disclosure in this news release as well as statements regarding the timing to complete the TSX Listing and the delisting of the Shares from the CSE; the Company’s ability to satisfy all listing and regulatory requirements of the TSX and obtain TSX final approval for the TSX Listing; and anticipated benefits to the Company from the TSX Listing, including broader access to institutional investors from around the world and an increased liquidity in the Company’s shares, are forward-looking statements. These forward-looking statements speak only as at the date they are made and are based on information currently available and on the then current expectations.
Holders of securities of the Company are cautioned that forward-looking statements are not based on historical facts but instead are based on reasonable assumptions and estimates of management of the Company at the time they were provided or made and involve known and unknown risks, uncertainties and other factors which may cause the actual results, performance or achievements of the Company, as applicable, to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements, including, but not limited to, risks and uncertainties related to the TSX Listing set forth in the prospectus supplement of the Company dated September 28, 2023 to the short form base shelf prospectus of the Company dated December 30, 2022, which is available under the Company’s profile on SEDAR+ at www.sedarplus.ca; risks and uncertainties related to the legality of cannabis in the U.S., including the fact that cannabis is a controlled substance under the U.S. federal Controlled Substances Act; anti-money laundering laws and regulations; the lack of access to U.S. bankruptcy protections; financing risks, including risks related to additional financing and restricted access to banking; general regulatory and legal risks, including risk of legal, regulatory or political change; general regulatory and licensing risks; liquidity; as well as those risk factors discussed under "Risk Factors" in the Company's Annual Information Form dated May 1, 2023 for the fiscal year ended December 31, 2022, and additional risks described in the Company's Annual Management's Discussion and Analysis for the year ended December 31, 2022 (both of which documents have been filed on the Company's profile on SEDAR+ at www.sedarplus.ca and on EDGAR at www.sec.gov), and as described from time to time in documents filed by the Company with Canadian securities regulatory authorities.
The purpose of forward-looking statements is to provide the reader with a description of management's expectations, and such forward-looking statements may not be appropriate for any other purpose. Although the Company believes that the expectations reflected in such forward-looking statements are reasonable, it can give no assurance that such expectations will prove to have been correct. A number of factors could cause actual events, performance or results to differ materially from what is projected in the forward-looking statements. You should not place undue reliance on forward-looking statements contained in this press release. Such forward-looking statements are made as of the date of this news release. The Company undertakes no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by applicable law. The Company's forward-looking statements are expressly qualified in their entirety by this cautionary statement.
INVESTOR CONTACT
Curaleaf Holdings, Inc.
Camilo Lyon, Chief Investment Officer
IR@curaleaf.com
MEDIA CONTACT
Curaleaf Holdings, Inc.
Tracy Brady, SVP Corporate Communications
media@curaleaf.com
Exhibit 99.4
 | Number: BC1018969 |
CERTIFICATE
OF
INCORPORATION
BUSINESS CORPORATIONS ACT
I Hereby Certify that MACCABI VENTURES INC. was incorporated under the Business Corporations Act on November 13, 2014 at 02:27 PM Pacific Time.
 | Issued
under my hand at Victoria, British Columbia On November 13, 2014  CAROL PREST Registrar
of Companies |
 |
Mailing
Address: PO Box 9431 Stn Prov Govt Victoria BC V8W 9V3 www.corporateonline.gov.bc.ca |
Location: 2nd Floor - 940 Blanshard Street Victoria BC 1 877 526-1526 |
| CERTIFIED COPY Of a Document filed with the Province of British Columbia Registrar of Companies | ||
| Notice of Articles |  | |
| BUSINESS CORPORATIONS ACT | T.K. SPARKS |
| This Notice of Articles was issued by the Registrar on: December 8, 2023 10:43 AM Pacific Time | ||||
| Incorporation Number: BC1018969 | ||||
| Recognition Date and Time: Incorporated on November 13, 2014 02:27 PM Pacific Time | ||||
NOTICE OF ARTICLES
Name of Company:
CURALEAF HOLDINGS, INC.
REGISTERED OFFICE INFORMATION
| Mailing Address: | Delivery Address: |
| SUITE 1700, PARK PLACE | SUITE 1700, PARK PLACE |
| 666 BURRARD STREET | 666 BURRARD STREET |
| VANCOUVER BC V6C 2X8 | VANCOUVER BC V6C 2X8 |
| CANADA | CANADA |
RECORDS OFFICE INFORMATION
| Mailing Address: | Delivery Address: |
| SUITE 1700, PARK PLACE | SUITE 1700, PARK PLACE |
| 666 BURRARD STREET | 666 BURRARD STREET |
| VANCOUVER BC V6C 2X8 | VANCOUVER BC V6C 2X8 |
| CANADA | CANADA |
Page: 1 of 3
DIRECTOR INFORMATION
Last Name, First Name, Middle Name:
Jordan, Boris
| Mailing Address: | Delivery Address: |
| 1175 SPANISH RIVER ROAD | 1175 SPANISH RIVER ROAD |
| BOCA RATON FL 33432 | BOCA RATON FL 33432 |
| UNITED STATES | UNITED STATES |
Last Name, First Name, Middle Name:
Lusardi, Joseph
| Mailing Address: | Delivery Address: |
| 1926 BELLONA STREET | 1926 BELLONA STREET |
| DANIEL ISLAND SC 29492 | DANIEL ISLAND SC 29492 |
| UNITED STATES | UNITED STATES |
Last Name, First Name, Middle Name:
Grover, Jaswinder
| Mailing Address: | Delivery Address: |
| 917 TROPHY HILLS DRIVE | 917 TROPHY HILLS DRIVE |
| LAS VEGAS NV 89134 | LAS VEGAS NV 89134 |
| UNITED STATES | UNITED STATES |
Last Name, First Name, Middle Name:
Bodner, Michelle
| Mailing Address: | Delivery Address: |
| 30 WEST 63RD STREET | 30 WEST 63RD STREET |
| APT 23J | APT 23J |
| NEW YORK NY 10023 | NEW YORK NY 10023 |
| UNITED STATES | UNITED STATES |
Last Name, First Name, Middle Name:
Kahn, Mitchell
| Mailing Address: | Delivery Address: |
| 4740 S. OCEAN BLVD. #801 | 4740 S. OCEAN BLVD. #801 |
| HIGHLAND BEACH FL 33487 | HIGHLAND BEACH FL 33487 |
| UNITED STATES | UNITED STATES |
Last Name, First Name, Middle Name:
Shah, Shasheen
| Mailing Address: | Delivery Address: |
| 1071 GOVERNOR DEMPSEY DRIVE | 1071 GOVERNOR DEMPSEY DRIVE |
| SANTA FE NM 87501 | SANTA FE NM 87501 |
| UNITED STATES | UNITED STATES |
Page: 2 of 3
Last Name, First Name, Middle Name:
Derby, Peter
| Mailing Address: | Delivery Address: |
| 26 DERBY LANE | 26 DERBY LANE |
| IRVINGTON NY 10553 | IRVINGTON NY 10553 |
| UNITED STATES | UNITED STATES |
Last Name, First Name, Middle Name:
Johansson, Karl
| Mailing Address: | Delivery Address: |
| 789 OLD NORTH SHORE ROAD | 789 OLD NORTH SHORE ROAD |
| TWO HARBORS MN 55616 | TWO HARBORS MN 55616 |
| UNITED STATES | UNITED STATES |
RESOLUTION DATES:
Date(s) of Resolution(s) or Court Order(s) attaching or altering Special Rights and Restrictions attached to a class or a series of shares:
October 12, 2018
September 9, 2021
October 4, 2023
AUTHORIZED SHARE STRUCTURE
| 1. | No Maximum | Subordinate Voting Shares | Without Par Value | |
| With Special Rights or | ||||
| Restrictions attached |
| 2. | No Maximum | Multiple Voting Shares | Without Par Value | |
| With Special Rights or | ||||
| Restrictions attached |
| 3. | No Maximum | Exchangeable Shares | Without Par Value | |
| With Special Rights or | ||||
| Restrictions attached |
Page: 3 of 3
Date and Time: December 8, 2023 10:44 AM Pacific Time
|
Mailing
Address: PO Box 9431 Stn Prov Govt Victoria BC V8W 9V3 www.corporateonline.gov.bc.ca |
Location: 2nd Floor - 940 Blanshard Street Victoria BC 1 877 526-1526 |
Notice of Alteration
FORM 11
BUSINESS CORPORATIONS ACT
Section 257
| Filed Date and Time: | December 8, 2023 10:43 AM Pacific Time | ||||
| Alteration Date and Time: | Notice of Articles Altered on December 8, 2023 10:43 AM Pacific Time | ||||
NOTICE OF ALTERATION
| Incorporation Number: | Name of Company: |
| BC1018969 | CURALEAF HOLDINGS, INC. |
ALTERATION EFFECTIVE DATE:
The alteration is to take effect at the time that this application is filed with the Registrar.
ADD A RESOLUTION DATE:
Date(s) of Resolution(s) or Court Order(s) attaching or altering Special Rights and Restrictions attached to a class or a series of shares:
New Resolution Date:
October 4, 2023
AUTHORIZED SHARE STRUCTURE
| 1. | No Maximum | Subordinate Voting Shares | Without Par Value | |
| With Special Rights or | ||||
| Restrictions attached |
BC1018969 Page: 1 of 2
| 2. | No Maximum | Multiple Voting Shares | Without Par Value | |
| With Special Rights or | ||||
| Restrictions attached |
| 3. | No Maximum | Exchangeable Shares | Without Par Value | |
| With Special Rights or | ||||
| Restrictions attached |
BC1018969 Page: 2 of 2
Effective upon filing of Notice of Alteration with the Registrar of Companies on December 8, 2023 at 10:43 A.M. (Pacific Time).
Articles
of
CURALEAF HOLDINGS, INC.
Incorporation number: BC1018969
TABLE OF CONTENTS
Page No.
| 1. | Interpretation | 2 |
| 2. | Shares and Share Certificates | 2 |
| 3. | Issue of Shares | 4 |
| 4. | Share Registers | 5 |
| 5. | Share Transfers | 5 |
| 6. | Transmission of Shares | 6 |
| 7. | Purchase of Shares | 6 |
| 8. | Borrowing Powers | 7 |
| 9. | Alterations | 7 |
| 10. | Meetings of Shareholders | 8 |
| 11. | Proceedings at Meetings of Shareholders | 10 |
| 12. | Votes of Shareholders | 13 |
| 13. | Directors | 16 |
| 14. | Election and Removal of Directors | 18 |
| 15. | Alternate Directors | 20 |
| 16. | Powers and Duties of Directors | 21 |
| 17. | Disclosure of Interest of Directors | 21 |
| 18. | Proceedings of Directors | 23 |
| 19. | Executive and Other Committees | 25 |
| 20. | Officers | 26 |
| 21. | Indemnification | 27 |
| 22. | Dividends | 28 |
| 23. | Documents, Records and Reports | 29 |
| 24. | Notices | 30 |
| 25. | Seal | 31 |
| 26. | Prohibitions | 32 |
| 27. | Special Rights and Restrictions | A-2 |
1. Interpretation
1.1 Definitions
In these Articles, the following words and phrases have the meanings set out beside them:
| (1) | “board of directors”, “directors” and “board” mean the directors or sole director of the Company for the time being; |
| (2) | “Business Corporations Act” means the Business Corporations Act (British Columbia) from time to time in force and all amendments thereto and includes all regulations and amendments thereto made pursuant to that Act; |
| (3) | “Company” means the company whose name is set out at the top of page 1, being the company which has adopted these Articles; |
| (4) | “Interpretation Act” means the Interpretation Act (British Columbia) from time to time in force and all amendments thereto and includes all regulations and amendments thereto made pursuant to that Act; |
| (5) | “legal personal representative” means the personal or other legal representative of the shareholder; |
| (6) | “registered address” of a shareholder means the shareholder's address as recorded in the central securities register; |
| (7) | “seal” means the seal of the Company, if any. |
1.2 Business Corporations Act and Interpretation Act Definitions Applicable
The definitions in the Business Corporations Act and the definitions and rules of construction in the Interpretation Act, with the necessary changes, so far as applicable, and unless the context requires otherwise, apply to these Articles as if they were an enactment. If there is a conflict between a definition in the Business Corporations Act and a definition or rule in the Interpretation Act relating to a term used in these Articles, the definition in the Business Corporations Act will prevail in relation to the use of the term in these Articles. If there is a conflict between these Articles and the Business Corporations Act, the Business Corporations Act will prevail.
2. Shares and Share Certificates
| 2.1 | Authorized Share Structure |
The authorized share structure of the Company consists of shares of the kinds, classes and, if any, series described in the Notice of Articles of the Company.
| 2.2 | Form of Share Certificate |
Each share certificate issued by the Company must comply with, and be signed as required by, the Business Corporations Act.
| 2.3 | Shareholder Entitled to Certificate or Acknowledgment |
Each shareholder is entitled, without charge, to (a) one share certificate representing the shares of each class or series of shares registered in the shareholder's name or (b) a non-transferable written acknowledgment of the shareholder's right to obtain such a share certificate, but in respect of a share held jointly by several persons, the Company is not bound to issue more than one share certificate and delivery of a share certificate for a share to one of several joint shareholders or to one of the shareholders' duly authorized agents will be sufficient delivery to all.
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| 2.4 | Delivery by Mail |
Any share certificate or non-transferable written acknowledgment of a shareholder's right to obtain a share certificate may be sent to the shareholder by mail at the shareholder's registered address and neither the Company nor any director, officer or agent of the Company is liable for any loss to the shareholder because the share certificate or acknowledgement is lost in the mail or stolen.
| 2.5 | Replacement of Worn Out or Defaced Certificate or Acknowledgement |
If the directors are satisfied that a share certificate or a non-transferable written acknowledgment of the shareholder's right to obtain a share certificate is worn out or defaced, they must, on production to them of the share certificate or acknowledgment, as the case may be, and on such other terms, if any, as they think fit:
| (1) | order the share certificate or acknowledgment, as the case may be, to be cancelled; and |
| (2) | issue a replacement share certificate or acknowledgment, as the case may be. |
| 2.6 | Replacement of Lost, Stolen or Destroyed Certificate or Acknowledgment |
If a share certificate or a non-transferable written acknowledgment of a shareholder's right to obtain a share certificate is lost, stolen or destroyed, a replacement share certificate or acknowledgment, as the case may be, must be issued to the person entitled to that share certificate or acknowledgment, as the case may be, if the directors receive:
| (1) | proof satisfactory to them that the share certificate or acknowledgment is lost, stolen or destroyed; and |
| (2) | any indemnity the directors consider adequate. |
| 2.7 | Splitting Share Certificates |
If a shareholder surrenders a share certificate to the Company with a written request that the Company issue in the shareholder's name two or more share certificates, each representing a specified number of shares and in the aggregate representing the same number of shares as the share certificate so surrendered, the Company must cancel the surrendered share certificate and issue replacement share certificates in accordance with that request.
| 2.8 | Certificate Fee |
There must be paid to the Company, in relation to the issue of any share certificate under Articles 2.5, 2.6 or 2.7, the amount, if any and which must not exceed the amount prescribed under the Business Corporations Act, determined by the directors.
| 2.9 | Recognition of Trusts |
Except as required by law or statute or these Articles, no person will be recognized by the Company as holding any share upon any trust, and the Company is not bound by or compelled in any way to recognize (even when having notice thereof) any equitable, contingent, future or partial interest in any share or fraction of a share or (except as by law or statute or these Articles provided or as ordered by a court of competent jurisdiction) any other rights in respect of any share except an absolute right to the entirety thereof in the shareholder.
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3. Issue of Shares
| 3.1 | Directors Authorized |
Subject to the rights of the holders of issued shares of the Company, the Company may allot, sell, issue and otherwise dispose of the unissued shares, and issued shares held by the Company, at the times, to the persons, including directors, in the manner, on the terms and conditions and for the issue prices (including any premium at which shares with par value may be issued) that the directors may determine. The issue price for a share with par value must be equal to or greater than the par value of the share.
| 3.2 | Commissions and Discounts |
The Company may pay at any time a reasonable commission or allow a reasonable discount to any person in consideration of that person purchasing or agreeing to purchase shares of the Company from the Company or any other person or procuring or agreeing to procure purchasers for shares of the Company.
| 3.3 | Brokerage |
The Company may pay such brokerage fee or other consideration as may be lawful for or in connection with the sale or placement of its securities.
| 3.4 | Conditions of Issue |
Except as provided for by the Business Corporations Act, no share may be issued until it is fully paid. A share is fully paid when:
| (1) | consideration is provided to the Company for the issue of the share by one or more of the following: |
| (a) | past services performed for the Company; |
| (b) | property; |
| (c) | money; and |
| (2) | the value of the consideration received by the Company equals or exceeds the issue price set for the share under Article 3.1. |
| 3.5 | Share Purchase Warrants and Rights |
The Company may issue share purchase warrants, options and rights upon such terms and conditions as the directors determine, which share purchase warrants, options and rights may be issued alone or in conjunction with debentures, debenture stock, bonds, shares or any other securities issued or created by the Company from time to time.
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4. Share Registers
| 4.1 | Central Securities Register |
The Company must maintain in British Columbia a central securities register as required by the Business Corporations Act. The directors may appoint:
| (1) | an agent to maintain the central securities register; and |
| (2) | one or more agents, including the agent which keeps the central securities register, as transfer agent for its shares or any class or series of its shares, as the case may be, and the same or another agent as registrar for its shares or such class or series of its shares. |
The directors may terminate such appointment of any agent at any time and may appoint another agent in its place.
| 4.2 | Closing Register |
The Company must not at any time close its central securities register.
5. Share Transfers
| 5.1 | Registering Transfers |
A transfer of a share of the Company must not be registered unless:
| (1) | a duly signed instrument of transfer in respect of the share has been received by the Company; |
| (2) | if a share certificate has been issued by the Company in respect of the share to be transferred, that share certificate has been surrendered to the Company; and |
| (3) | if a non-transferable written acknowledgment of the shareholder's right to obtain a share certificate has been issued by the Company in respect of the share to be transferred, that acknowledgment has been surrendered to the Company. |
| 5.2 | Form of Instrument of Transfer |
The instrument of transfer in respect of any share of the Company must be either in the form, if any, on the back of the Company's share certificates or in any other form that may be approved by the directors from time to time.
| 5.3 | Transferor Remains Shareholder |
Except to the extent that the Business Corporations Act otherwise provides, the transferor of shares is deemed to remain the holder of the shares until the name of the transferee is entered in a securities register of the Company in respect of the transfer.
| 5.4 | Signing of Instrument of Transfer |
If a shareholder, or their duly authorized attorney, signs an instrument of transfer in respect of shares registered in the name of the shareholder, the signed instrument of transfer constitutes a complete and sufficient authority to the Company and its directors, officers and agents to register the number of shares specified in the instrument of transfer or specified in any other manner, or, if no number is specified, all the shares represented by the share certificates or set out in the written acknowledgments deposited with the instrument of transfer:
| (1) | in the name of the person named as transferee in that instrument of transfer; or |
| (2) | if no person is named as transferee in that instrument of transfer, in the name of the person on whose behalf the instrument is deposited for the purpose of having the transfer registered. |
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| 5.5 | Enquiry as to Title Not Required |
Neither the Company nor any director, officer or agent of the Company is bound to inquire into the title of the person named in the instrument of transfer as transferee or, if no person is named as transferee in the instrument of transfer, of the person on whose behalf the instrument is deposited for the purpose of having the transfer registered or is liable for any claim related to registering the transfer by the shareholder or by any intermediate owner or holder of the shares, of any interest in the shares, of any share certificate representing such shares or of any written acknowledgment of a right to obtain a share certificate for such shares.
| 5.6 | Transfer Fee |
There must be paid to the Company, in relation to the registration of any transfer, the amount, if any, determined by the directors.
6. Transmission of Shares
| 6.1 | Legal Personal Representative Recognized on Death |
In case of the death of a shareholder, the legal personal representative, or if the shareholder was a joint holder, the surviving joint holder, will be the only person recognized by the Company as having any title to the shareholder's interest in the shares. Before recognizing a person as a legal personal representative, the directors may require proof of appointment by a court of competent jurisdiction, a grant of letters probate, letters of administration or such other evidence or documents as the directors consider appropriate.
| 6.2 | Rights of Legal Personal Representative |
The legal personal representative has the same rights, privileges and obligations that attach to the shares held by the shareholder, including the right to transfer the shares in accordance with these Articles, provided the documents required by the Business Corporations Act and the directors have been deposited with the Company.
7. Purchase of Shares
| 7.1 | Company Authorized to Purchase Shares |
Subject to Article 7.2 and the special rights and restrictions attached to the shares of any class or series, the Company, if authorized by the directors, may purchase or otherwise acquire any of its shares at the price and upon the terms specified in such resolution.
| 7.2 | Purchase When Insolvent |
The Company must not make a payment or provide any other consideration to purchase or otherwise acquire any of its shares if there are reasonable grounds for believing that:
| (1) | the Company is insolvent; or |
| (2) | making the payment or providing the consideration would render the Company insolvent. |
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| 7.3 | Sale and Voting of Purchased Shares |
If the Company retains a share redeemed, purchased or otherwise acquired by it, the Company may sell, gift or otherwise dispose of the share, but, while such share is held by the Company, it:
| (1) | is not entitled to vote the share at a meeting of its shareholders; |
| (2) | must not pay a dividend in respect of the share; and |
| (3) | must not make any other distribution in respect of the share. |
8. Borrowing Powers
The Company, if authorized by the directors, may:
| (1) | borrow money in the manner and amount, on the security, from the sources and on the terms and conditions that they consider appropriate; |
| (2) | issue bonds, debentures and other debt obligations either outright or as security for any liability or obligation of the Company or any other person and at such discounts or premiums and on such other terms as they consider appropriate; |
| (3) | guarantee the repayment of money by any other person or the performance of any of any other person; and |
| (4) | mortgage, charge, whether by way of specific or floating charge, grant a security interest in, or give other security on, the whole or any part of the present and future assets and undertaking of the Company. |
9. Alterations
| 9.1 | Alteration of Authorized Share Structure |
Subject to Article 9.2, the Company may by:
| (1) | a resolution of its board of directors |
| (a) | increase, reduce or eliminate the maximum number of shares that the Company is authorized to issue out of any class or series of shares or establish a maximum number of shares that the Company is authorized to issue out of any class or series of shares for which no maximum is established; |
| (b) | change all or any of its unissued, or fully paid issued, shares with par value into shares without par value or any of its unissued shares without par value into shares with par value; |
| (c) | alter the identifying name of any of its shares; and |
| (d) | subdivide or consolidate all or any of its unissued, or fully paid issued, shares. |
| (2) | an ordinary resolution: |
| (a) | create one or more classes or series of shares or, if none of the shares of a class or series of shares are allotted or issued, eliminate that class or series of shares; and |
| (b) | if the Company is authorized to issue shares of a class of shares with par value: |
| (i) | decrease the par value of those shares; and |
| (ii) | if none of the shares of that class of shares are allotted or issued, increase the par value of those shares. |
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| (3) | a special resolution, otherwise alter its shares or authorized share structure when required or permitted to do so by the Business Corporations Act. |
| 9.2 | Special Rights and Restrictions |
The Company may by ordinary resolution:
| (1) | create special rights or restrictions for, and attach those special rights or restrictions to, the shares of any class or series of shares, unless any of those shares have been issued in which case the Company may do so only by special resolution; or |
| (2) | or delete any special rights or restrictions attached to the shares of any class or series of unless any of those shares have been issued in which case the Company may do so only by special resolution. |
| 9.3 | Change of Name |
The Company may by a resolution of its board of directors authorize an alteration of its Notice of Articles to change its name or adopt or change any translation of that name.
| 9.4 | Other Alterations |
If the Business Corporations Act does not specify the type of resolution and these Articles do not specify another type of resolution, the Company may by special resolution alter these Articles.
10. Meetings of Shareholders
| 10.1 | Annual General Meetings |
The Company must, unless an annual general meeting is deferred or waived in accordance with the Business Corporations Act, hold its first annual general meeting following incorporation, amalgamation or continuation within 18 months after the date on which it was incorporated or otherwise created and recognized, and after that must hold an annual general meeting at least once in each calendar year and not more than 15 months after the last annual reference date at such time and place as may be determined by the directors.
| 10.2 | Resolution Instead of Annual General Meeting |
If all the shareholders entitled to vote at an annual general meeting consent by a unanimous resolution under the Business Corporations Act to all of the business required to be transacted at that annual general meeting, the meeting is deemed to have been held on the date of the unanimous resolution. The shareholders must, in any unanimous resolution passed under this Article 10.2, select as the Company's annual reference date a date that would be appropriate for the holding of the applicable annual general meeting.
| 10.3 | Calling and Location of Meetings of Shareholders |
The directors may, whenever they think fit, call a meeting of shareholders to be held in British Columbia, Calgary, Alberta or Toronto, Ontario or at such other location as may be approved by the Registar of Companies at such time and place as may be determined by the directors.
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| 10.4 | Notice for Meetings of Shareholders |
The Company must send notice of the date, time and location of any meeting of shareholders, in the manner provided in these Articles, or in such other manner, if any, as may be prescribed by ordinary resolution (whether previous notice of the resolution has been given or not), to each shareholder entitled to attend the meeting, to each director and to the auditor of the Company, unless these Articles otherwise provide, at least the following number of days before the meeting:
| (1) | if and for so long as the Company is a public company, 21 days; |
| (2) | otherwise, 10 days. |
| 10.5 | Record Date for Notice |
The directors may set a date as the record date for the purpose of determining shareholders entitled to notice of any meeting of shareholders. The record date must not precede the date on which the meeting is to be held by more than two months or, in the case of a general meeting requisitioned by shareholders under the Business Corporations Act, by more than four months. The record date must not precede the date on which the meeting is held by fewer than:
| (1) | if and for so long as the Company is a public company, 21 days; |
| (2) | otherwise, 10 days. |
If no record date is set, it is 5:00 p.m. on the business day immediately preceding the first date on which the notice is sent or, if no notice is sent, the beginning of the meeting.
| 10.6 | Record Date for Voting |
The directors may set a date as the record date for the purpose of determining shareholders entitled to vote at any meeting of shareholders. The record date must not precede the date on which the meeting is to be held by more than two months or, in the case of a general meeting requisitioned by shareholders under the Business Corporations Act, by more than four months. If no record date is set, the record date is 5 p.m. on the day immediately preceding the first date on which the notice is sent or, if no notice is sent, the beginning of the meeting.
| 10.7 | Failure to Give Notice and Waiver of Notice |
The accidental omission to send notice of any meeting to, or the non-receipt of any notice by, any of the persons entitled to notice does not invalidate any proceedings at that meeting. Any person entitled to notice of a meeting of shareholders may, in writing or otherwise, waive or reduce the period of notice of such meeting.
| 10.8 | Notice of Special Business at Meetings of Shareholders |
If a meeting of shareholders is to consider special business within the meaning of Article 11.1, the notice of meeting must:
| (1) | state the general nature of the special business; and |
| (2) | if the special business includes considering, approving, ratifying, adopting or authorizing any document or the signing of or giving of effect to any document, have attached to it a copy of the document or state that a copy of the document will be available for inspection by shareholders: |
| (a) | at the Company's records office, or at such other reasonably accessible location in British Columbia as is specified in the notice; and (b) during statutory business hours on any one or more specified days before the day set for the holding of the meeting. |
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11. Proceedings at Meetings of Shareholders
| 11.1 | Special Business |
At a meeting of shareholders, the following business is special business:
| (1) | at a meeting of shareholders that is not an annual general meeting, all business is special business except business relating to the conduct of or voting at the meeting; |
| (2) | at an annual general meeting, all business is special business except for the following: |
| (a) | business relating to the conduct of or voting at the meeting; |
| (b) | consideration of any financial statements of the Company presented to the meeting; |
| (c) | consideration of any reports of the directors or auditor; |
| (d) | the setting or changing of the number of directors; |
| (e) | the election or appointment of directors; |
| (f) | the appointment of an auditor; |
| (g) | the setting of the remuneration of an auditor; |
| (h) | business arising out of a report of the directors not requiring the passing of a special resolution or an exceptional resolution; and |
| (i) | any other business which, under these Articles or the Business Corporations Act, may be transacted at a meeting of shareholders without prior notice of the business being given to the shareholders. |
| 11.2 | Special Majority |
The majority of votes required for the Company to pass a special resolution at a meeting of shareholders is two-thirds of the votes cast on the resolution.
| 11.3 | Quorum |
Subject to the special rights and restrictions attached to the shares of any class or series of shares, the quorum for the transaction of business at a meeting of shareholders is two shareholders who are present in person or represented by proxy.
| 11.4 | One Shareholder May Constitute Quorum |
If there is only one shareholder entitled to vote at a meeting of shareholders:
| (1) | the quorum is one person who is, or who represents by proxy, that shareholder, and |
| (2) | that shareholder, present in person or by proxy, may constitute the meeting. |
| 11.5 | Other Persons May Attend |
The directors, the president (if any), the secretary (if any), the assistant secretary (if any), any lawyer for the Company, the auditor of the Company and any other persons invited by the directors are entitled to attend any meeting of shareholders, but if any of those persons does attend a meeting of shareholders, that person is not to be counted in the quorum and is not entitled to vote at the meeting unless that person is a shareholder or proxy holder entitled to vote at the meeting.
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| 11.6 | Requirement of Quorum |
No business, other than the election of a chair of the meeting and the adjournment of the meeting, may be transacted at any meeting of shareholders unless a quorum of shareholders entitled to vote is present at the commencement of the meeting, but such quorum need not be present throughout the meeting.
| 11.7 | Lack of Quorum |
If, within one-half hour from the time set for the holding of a meeting of shareholders, a quorum is not present:
| (1) | in the case of a general meeting requisitioned by shareholders, the meeting is dissolved, and |
| (2) | in the case of any other meeting of shareholders, the meeting stands adjourned to the same day in the next week at the same time and place. |
| 11.8 | Lack of Quorum at Succeeding Meeting |
If, at the meeting to which the meeting referred to in Article 11.7(2) was adjourned, a quorum is not present within one-half hour from the time set for the holding of the meeting, the person or persons present and being, or representing by proxy, one or more shareholders entitled to attend and vote at the meeting constitute a quorum.
| 11.9 | Chair |
The following individuals are entitled to preside as chair at a meeting of shareholders:
| (1) | the chair of the board, if any; or |
| (2) | if the chair of the board is absent or unwilling to act as chair of the meeting, the first of the following individuals to agree to act as chair: the president, if any. |
| 11.10 | Selection of Alternate Chair |
If, at any meeting of shareholders, the chair of the board or president are not present within 15 minutes after the time set for holding the meeting, or if the chair of the board and the president are unwilling to act as chair of the meeting, or if the chair of the board and the president have advised the secretary, if any, or any director present at the meeting, that they will not be present at the meeting, one of the chief executive officer, the chief financial officer, a vice-president, the secretary or the Company's legal counsel may act as chair of the meeting and, failing them, the directors present must choose one of their number to be chair of the meeting or if all of the directors present decline to take the chair or fail to so choose or if no director is present, the shareholders entitled to vote at the meeting who are present in person or by proxy may choose any person present at the meeting to chair the meeting.
| 11.11 | Adjournments |
The chair of a meeting of shareholders may, and if so directed by the meeting must, adjourn the meeting from time to time and from place to place, but no business may be transacted at any adjourned meeting other than tl1e business left unfinished at the meeting from which the adjournment took place.
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| 11.12 | Notice of Adjourned Meeting |
It is not necessary to give any notice of an adjourned meeting or of the business to be transacted at an adjourned meeting of shareholders except that, when a meeting is adjourned for 30 days or more, notice of the adjourned meeting must be given as in the case of the original meeting.
| 11.13 | Decisions by Show of Hands or Poll |
Every motion put to a vote at a meeting of shareholders will be decided on a show of hands unless a poll, before or on the declaration of the result of the vote by show of hands, is directed by the chair or demanded by at least one shareholder entitled to vote who is present in person or by proxy.
| 11.14 | Declaration of Result |
The chair of a meeting of shareholders must declare to the meeting the decision on every question in accordance with the result of the show of hands or the poll, as the case may be, and that decision must be entered in tl1e minutes of the meeting. A declaration of the chair that a resolution is carried by the necessary majority or is defeated is, unless a poll is directed by the chair or demanded under Article 11.13, conclusive evidence without proof of the number or proportion of the votes recorded in favour of or against the resolution.
| 11.15 | Motion Need Not be Seconded |
No motion proposed at a meeting of shareholders need be seconded unless the chair of the meeting rules otherwise, and the chair of any meeting of shareholders is entitled to propose or second a motion.
| 11.16 | Casting Vote |
In case of an equality of votes, the chair of a meeting of shareholders does not, either on a show of hands or on a poll, have a second or casting vote in addition to the vote or votes to which the chair may be entitled as a shareholder.
| 11.17 | Manner of Taking Poll |
Subject to Article 11.18, if a poll is duly demanded at a meeting of shareholders:
| (1) | the poll must be taken: |
| (a) | at the meeting, or within seven days after the date of the meeting, as the chair of the meeting directs; and |
| (b) | in the manner, at the time and at the place that the chair of the meeting directs; |
| (2) | the result of the poll is deemed to be the decision of the meeting at which the poll is demanded; and |
| (3) | the demand for the poll may be withdrawn by the person who demanded it. |
| 11.18 | Demand for Poll on Adjournment |
A poll demanded at a meeting of shareholders on a question of adjournment must be taken immediately at the meeting.
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| 11.19 | Chair Must Resolve Dispute |
In the case of any dispute as to the admission or rejection of a vote given on a poll, the chair of the meeting must determine the dispute, and their determination made in good faith is final and conclusive.
| 11.20 | Casting of Votes |
On a poll, a shareholder entitled to more than one vote need not cast all the votes in the same way.
| 11.21 | Demand for Poll |
No poll may be demanded in respect of the vote by which a chair of a meeting of shareholders is elected.
| 11.22 | Demand for Poll |
Not to Prevent Continuance of Meeting The demand for a poll at a meeting of shareholders does not, unless the chair of the meeting so rules, prevent the continuation of a meeting for the transaction of any business other than the question on which a poll has been demanded.
| 11.23 | Retention of Ballots and Proxies |
The Company must, for at least three months after a meeting of shareholders, keep each ballot cast on a poll and each proxy voted at the meeting at its records office, and, during that period, make them available for inspection during normal business hours by any shareholder or proxyholder entitled to vote at the meeting. At the end of such three month period, the Company may destroy such ballots and proxies.
12. Votes of Shareholders
| 12.1 | Number of Votes by Shareholder or by Shares |
Subject to any special rights or restrictions attached to any shares and to the restrictions imposed on joint shareholders under Article 12.3:
| (1) | on a vote by show of hands, every person present who is a shareholder or proxy holder and entitled to vote on the matter has one vote; and |
| (2) | on a poll, every shareholder entitled to vote on the matter has one vote in respect of each share entitled to be voted on the matter and held by that shareholder and may exercise that vote either in person or by proxy. |
| 12.2 | Votes of Persons in Representative |
Capacity A person who is not a shareholder may vote at a meeting of shareholders, whether on a show of hands or on a poll, and may appoint a proxy holder to act at the meeting, if, before doing so, the person satisfies the chair of the meeting, or the directors, that the person is a legal personal representative or a trustee in bankruptcy for a shareholder who is entitled to vote at the meeting.
| 12.3 | Votes by Joint Holders |
If there are joint shareholders registered in respect of any share:
| (1) | any one of the joint shareholders may vote at any meeting, either personally or by proxy, in respect of the share as if that joint shareholder were solely entitled to it; or |
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| (2) | if more than one of the joint shareholders is present at any meeting, personally or by proxy, and more than one of them votes in respect of that share, then only the vote of the joint shareholder present whose name stands first on the central securities register in respect of the share will be counted. |
| 12.4 | Legal Personal Representatives as Joint Shareholders |
Two or more legal personal representatives of a shareholder in whose sole name any share is registered are, for the purposes of Article 12.3, deemed to be joint shareholders.
| 12.5 | Representative of a Corporate Shareholder |
If a corporation, that is not a subsidiary of the Company, is a shareholder, that corporation may appoint a person to act as Its representative at any meeting of shareholders of the Company, and:
| (1) | for that purpose, the instrument appointing a representative must: |
| (a) | be received at the registered office of the Company or at any other place specified, in the notice calling the meeting, for the receipt of proxies, at least the number of business days specified in the notice for the receipt of proxies, or if no number of days is specified, two business days before the day set for the holding of the meeting; or |
| (b) | be provided, at the meeting, to the chair of the meeting or to a person designated by the chair of the meeting; |
| (2) | if a representative is appointed under this Article 12.5: |
| (a) | the representative is entitled to exercise in respect of and at that meeting the same rights on behalf of the corporation that the representative represents as that corporation could exercise if it were a shareholder who is an individual, including, without limitation, the right to appoint a proxy holder; and |
| (b) | the representative, if present at the meeting, is to be counted for the purpose of forming a quorum and is deemed to be a shareholder present in person at the meeting. |
Evidence of the appointment of any such representative may be sent to the Company by written instrument, fax or any other method of transmitting legibly recorded messages.
| 12.6 | Proxy Provisions Do Not Apply to All Companies |
Articles 12.9 and 12.12 do not apply to the Company if and for so long as it is a public company or a pre-existing reporting company which has the Statutory Reporting Company Provisions as part of its Articles or to which the Statutory Reporting Company Provisions apply.
| 12.7 | Appointment of Proxy Holders |
Every shareholder of the Company, including a corporation that is a shareholder but not a subsidiary of the Company, entitled to vote at a meeting of shareholders of the Company may, by proxy, appoint one or more (but not more than five) proxy holders to attend and act at the meeting in the manner, to the extent and with the powers conferred by the proxy.
| 12.8 | Alternate Proxy Holders |
A shareholder may appoint one or more alternate proxy holders to act in the place of an absent proxy holder.
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| 12.9 | When Proxy Holder Need Not Be Shareholder |
Subject to Article 12.6 a person must not be appointed as a proxy holder unless the person is a shareholder, although a person who is not a shareholder may be appointed as a proxy holder if:
| (1) | the person appointing the proxy holder is a corporation or a representative of a corporation appointed under Article 12.5; |
| (2) | the Company has at the time of the meeting for which the proxy holder is to be appointed only one shareholder entitled to vote at the meeting; or |
| (3) | the shareholders present in person or by proxy at and entitled to vote at the meeting for which the proxy holder is to be appointed, by a resolution on which the proxy holder is not entitled to vote but in respect of which the proxy holder is to be counted in the quorum, permit the proxy holder to attend and vote at the meeting. |
| 12.10 | Deposit of Proxy |
A proxy for a meeting of shareholders must:
| (1) | be received at the registered office of the Company or at any other place specified, in the notice calling the meeting, for the receipt of proxies, at least the number of business days specified in the notice, or if no number of days is specified, two business days before the day set for the holding of the meeting; or |
| (2) | unless the notice provides otherwise, be provided, at the meeting, to the chair of the meeting or to a person designated by the chair of the meeting. A proxy may be sent to the Company by written instrument, fax or any other method of transmitting legibly recorded messages. |
| 12.11 | Validity of Proxy Vote |
A vote given in accordance with the terms of a proxy is valid notwithstanding the death or incapacity of the shareholder giving the proxy and despite the revocation of the proxy or the revocation of the authority under which the proxy is given, unless notice in writing of that death, incapacity or revocation is received:
| (1) | at the registered office of the Company, at any time up to and including the last business day before the day set for the holding of the meeting at which the proxy is to be used; or |
| (2) | by the chair of the meeting, before the vote is taken. |
| 12.12 | Form of Proxy |
| (1) | Subject to Article 12.6, a proxy, whether for a specified meeting or otherwise, must be either in the following form or in any other form approved by the directors or the chair of the meeting: |
[name of company]
(the “Company”)
The undersigned, being a shareholder of the Company, hereby appoints [name] or, failing that person, [name], as proxy holder for the undersigned to attend, act and vote for and on behalf of the undersigned at the meeting of shareholders of the Company to be held on [month, day, year] and at any adjournment of that meeting.
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Number of shares in respect of which this proxy is given (if no number is specified, then this proxy if given in respect of all shares registered in the name of the shareholder):
| Signed [month, day, year] | |
| [Signature of shareholder] | |
| [Name of shareholder-printed] |
| 12.13 | Revocation of Proxy |
Every proxy may be revoked by an instrument in writing that is:
| (1) | received at the registered office of the Company at any time up to and including the last business day before the day set for the holding of the meeting at which the proxy is to be used; or |
| (2) | provided, at the meeting, to the chair of the meeting. |
| 12.14 | Revocation of Proxy Must Be Signed |
An instrument referred to in Article 12.13 must be signed as follows:
| (1) | if the shareholder for whom the proxy holder is appointed is an individual, the instrument must be signed by the shareholder or their legal personal representative or trustee in bankruptcy; |
| (2) | if the shareholder for whom the proxy holder is appointed is a corporation, the instrument must be signed by the corporation or by a representative appointed for the corporation under Article 12.5. |
| 12.15 | Production of Evidence of Authority to Vote |
The chair of any meeting of shareholders may, but need not, inquire into the authority of any person to vote at the meeting and may, but need not, demand from that person production of evidence as to the existence of the authority to vote.
13. Directors
| 13.1 | First Directors; Number of Directors |
The directors, or the first directors after the Company being incorporated, amalgamated or continued, are the persons designated as directors of the Company in the Notice of Articles that applies to the Company when it is recognized under the Business Corporations Act. The number of directors, excluding additional directors appointed under Article 14.8, is set at:
| (1) | subject to paragraphs (2) and (3), the number of directors that is equal to the number of the Company's first directors; |
| (2) | if the Company is a public company, the greater of three and the most recently set of: |
| (a) | the number of directors set by ordinary resolution (whether or not previous notice of the resolution was given);and |
| (b) | the number of directors set under Article 14.4; |
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| (3) | if the Company is not a public company, the most recently set of: |
| (a) | the number of directors set by ordinary resolution (whether or not previous notice of the resolution was given); and |
| (b) | the number of directors set under Article 14.4. |
| 13.2 | Change in Number of Directors |
If the number of directors is set under Articles 13.1(2)(a) or 13.1(3)(a):
| (1) | the shareholders may elect or appoint the directors needed to fill any vacancies in the board of directors up to that number; |
| (2) | if the shareholders do not elect or appoint the directors needed to fill any vacancies in the board of directors up to that number contemporaneously with the setting of that number, then the directors may appoint, or the shareholders may elect or appoint, directors to fill those vacancies. |
| 13.3 | Directors' Acts Valid Despite Vacancy |
An act or proceeding of the directors is not invalid merely because fewer than the number of directors set or otherwise required under these Articles is in office.
| 13.4 | Qualifications of Directors |
A director is not required to hold a share in the capital of the Company as qualification for their office but must be qualified as required by the Business Corporations Act to become, act or continue to act as a director.
| 13.5 | Remuneration of Directors |
The directors are entitled to the remuneration for acting as directors, if any, as the directors may from time to time determine. If they so decide, the remuneration, if any, of the directors will be determined by the shareholders. That remuneration may be in addition to any salary or other remuneration paid to any officer or employee of the Company as such, who is also a director.
| 13.6 | Reimbursement of Expenses of Directors |
The Company must reimburse each director for the reasonable expenses they may incur in and about the business of the Company.
| 13.7 | Special Remuneration for Directors |
If any director performs any professional or other services for the Company that in the opinion of the directors are outside the ordinary duties of a director, or if any director is otherwise specially occupied in or about the Company's business, they may be paid remuneration fixed by the directors, or, at the option of that director, fixed by ordinary resolution, and such remuneration may be either in addition to, or in substitution for, any other remuneration that they may be entitled to receive.
| 13.8 | Gratuity, Pension or Allowance on Retirement of Director |
Unless otherwise determined by ordinary resolution, the directors on behalf of the Company may pay a gratuity or pension or allowance on retirement to any director who has held any salaried office or place of profit with the Company or to their spouse or dependants and may make contributions to any fund and pay premiums for the purchase or provision of any such gratuity, pension or allowance.
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14. Election and Removal of Directors
| 14.1 | Election at Annual General Meeting |
At every annual general meeting and in every unanimous resolution contemplated by Article 10.2:
| (1) | the shareholders entitled to vote at the annual general meeting for the election of directors must elect, or in the unanimous resolution appoint, a board of directors consisting of the number of directors for the time being set under these Articles; and |
| (2) | the directors cease to hold office immediately before the election or appointment of directors under paragraph (1) but are eligible for re-election or re-appointment. |
| 14.2 | Consent to be a Director |
No election, appointment or designation of an individual as a director is valid unless:
| (1) | that individual consents to be a director in the manner provided for in the Business Corporations Act; |
| (2) | that individual is elected or appointed at a meeting at which the individual is present and the individual does not refuse, at the meeting, to be a director; or |
| (3) | with respect to first directors, the designation is otherwise valid under the Business Corporations Act. |
| 14.3 | Failure to Elect or Appoint Directors |
If:
| (1) | the Company fails to hold an annual general meeting, and all the shareholders who are entitled to vote at an annual general meeting fail to pass the unanimous resolution contemplated by Article 10.2, on or before the date by which the annual general meeting is required to be held under the Business Corporations Act; or |
| (2) | the shareholders fail, at the annual general meeting or in the unanimous resolution contemplated by Article 10.2, to elect or appoint any directors; then each director then in office continues to hold office until the earlier of: |
| (3) | the date on which their successor is elected or appointed; and |
| (4) | the date on which they otherwise cease to hold office under the Business Corporations Act or these Articles. |
| 14.4 | Places of Retiring Directors Not Filled |
If, at any meeting of shareholders at which there should be an election of directors, the places of any of the retiring directors are not filled by that election, those retiring directors who are not re-elected and who are asked by the newly elected directors to continue in office will, if willing to do so, continue in office to complete the number of directors for the time being set pursuant to these Articles until further new directors are elected at a meeting of shareholders convened for that purpose . If any such election or continuance of directors does not result in the election or continuance of the number of directors for the time being set pursuant to these Articles, the number of directors of the Company is deemed to be set at the number of directors actually elected or continued in office.
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| 14.5 | Directors May Fill Casual Vacancies |
Any casual vacancy occurring in the board of directors may be filled by the directors.
| 14.6 | Remaining Directors Power to Act |
The directors may act notwithstanding any vacancy in the board of directors, but if the Company has fewer directors in office than the number set pursuant to these Articles as the quorum of directors, the directors may only act for the purpose of appointing directors up to that number or of summoning a meeting of shareholders for the purpose of filling any vacancies on the board of directors or for any other purpose.
| 14.7 | Shareholders May Fill Vacancies |
If the Company has no directors or fewer directors in office than the number set pursuant to these Articles as the quorum of directors, the shareholders may elect or appoint directors to fill any vacancies on the board of directors.
| 14.8 | Additional Directors |
Notwithstanding Articles 13.1 and 13.2, between annual general meetings or unanimous resolutions contemplated by Article 10.2, the directors may appoint one or more additional directors, but the number of additional directors appointed under this Article 14.8 must not at any time exceed:
| (1) | one-third of the number of first directors, if, at the time of the appointments, one or more of the first directors have not yet completed their first term of office; or |
| (2) | in any other case, one-third of the number of the current directors who were elected or appointed as directors other than under this Article 14.8. |
Any director so appointed ceases to hold office immediately before the next election or appointment of directors under Article 14.1(1), but is eligible for re-election or re-appointment.
| 14.9 | Ceasing to be a Director |
A director ceases to be a director when:
| (1) | the term of office of the director expires; |
| (2) | the director dies; |
| (3) | the director resigns as a director by notice in writing provided to the Company or a lawyer for the Company; or |
| (4) | the director is removed from office pursuant to Articles 14.10 or 14.11. |
| 14.10 | Removal of Director by Shareholders |
The Company may remove any director before the expiration of their term of office by special resolution. In that event, the shareholders may elect, or appoint by ordinary resolution, a director to fill the resulting vacancy. If the shareholders do not elect or appoint a director to fill the resulting vacancy contemporaneously with the removal, then the directors may appoint or the shareholders may elect, or appoint by ordinary resolution, a director to fill that vacancy.
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| 14.11 | Removal of Director by Directors |
The directors may remove any director before the expiration of their term of office if the director is convicted of an indictable offence, convicted by a court of an offence under or found in breach and sanctioned by a securities regulatory authority of any Canadian or United States securities legislation, or if the director ceases to be qualified to act as a director of a company and does not promptly resign, and the directors may appoint a director to fill the resulting vacancy.
15. Alternate Directors
| 15.1 | Appointment of Alternate Director |
Any director (an “appointor”) may by notice in writing received by the Company appoint any person (an “appointee”) who is qualified to act as a director to be their alternate to act in their place at meetings of the directors or committees of the directors at which the appointor is not present unless (in the case of an appointee who is not a director) the directors have reasonably disapproved the appointment of such person as an alternate director and have given notice to that effect to the appointor within a reasonable time after the notice of appointment is received by the Company.
| 15.2 | Notice of Meetings |
Every alternate director so appointed is entitled to notice of meetings of the directors and of committees of the directors of which their appointor is a member and to attend and vote as a director at any such meetings at which their appointor is not present.
| 15.3 | Alternate for More Than One Director Attending Meetings |
A person may be appointed as an alternate director by more than one director, and an alternate director:
| (1) | will be counted in determining the quorum for a meeting of directors once for each of their appointors and, in the case of an appointee who is also a director, once more in that capacity; |
| (2) | has a separate vote at a meeting of directors for each of their appointors and, in the case of an appointee who is also a director, an additional vote in that capacity; |
| (3) | will be counted in determining the quorum for a meeting of a committee of directors once for each of their appointors who is a member of that committee and, in the case of an appointee who is also a member of that committee as a director, once more in that capacity; |
| (4) | has a separate vote at a meeting of a committee of directors for each of their appointors who is a member of that committee and, in the case of an appointee who is also a member of that committee as a director, an additional vote in that capacity. |
| 15.4 | Consent Resolutions |
Every alternate director, if authorized by the notice appointing them, may sign in place of their appointor any resolutions to be consented to in writing.
| 15.5 | Alternate Director Not an Agent |
Every alternate director is deemed not to be the agent of their appointor.
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| 15.6 | Revocation of Appointment of Alternate Director |
An appointor may at any time, by notice in writing received by the Company, revoke the appointment of an alternate director appointed by them.
| 15.7 | Ceasing to be an Alternate Director |
The appointment of an alternate director ceases when:
| (1) | their appointor ceases to be a director and is not promptly re-elected or re-appointed; |
| (2) | the alternate director dies; |
| (3) | the alternate director resigns as an alternate director by notice in writing provided to the Company or a lawyer for the Company; |
| (4) | the alternate director ceases to be qualified to act as a director; or |
| (5) | their appointor revokes the appointment of the alternate director. |
| 15.8 | Remuneration and Expenses of Alternate Director |
The Company must reimburse an alternate director for the reasonable expenses that would be properly reimbursed if they were a director, and the alternate director is entitled to receive from the Company such proportion, if any, of the remuneration otherwise payable to the appointor as the appointor may from time to time direct.
16. Powers and Duties of Directors
| 16.1 | Powers of Management |
The directors must, subject to these Articles, manage or supervise the management of the business and affairs of the Company and have the authority to exercise all such powers of the Company as are not, by the Business Corporations Act or by these Articles, required to be exercised by the shareholders of the Company.
| 16.2 | Appointment of Attorney of Company |
The directors may from time to time, by power of attorney or other instrument, under seal if so required by law, appoint any person to be the attorney of the Company for such purposes, and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the directors under these Articles and excepting the power to fill vacancies in the board of directors, to remove g. director, to change the membership of, or fill vacancies in, any committee of the directors, to appoint or remove officers appointed by the directors and to declare dividends) and for such period, and with such remuneration and subject to such conditions as the directors may think fit. Any such power of attorney may contain such provisions for the protection or convenience of persons dealing with such attorney as the directors think fit. Any such attorney may be authorized by the directors to sub-delegate all or any of the powers, authorities and discretions for the time being vested in them.
17. Disclosure of Interest of Directors
| 17.1 | Obligation to Account for Profits |
A director or senior officer who holds a disclosable interest (as that term is used in the Business Corporations Act) in a contract or transaction into which the Company has entered or proposes to enter is liable to account to the Company for any profit that accrues to the director or senior officer under or as a result of the contract or transaction only if and to the extent provided in the Business Corporations Act.
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17.2 Restrictions on Voting by Reason of Interest
A director who holds a disclosable interest in a contract or transaction into which the Company has entered or proposes to enter is not entitled to vote on any directors' resolution to approve that contract or transaction, unless all the directors have a disclosable interest in that contract or transaction, in which case any or all of those directors may vote on such resolution.
17.3 Interested Director Counted in Quorum
A director who holds a disclosable interest in a contract or transaction into which the Company has entered or proposes to enter and who is present at the meeting of directors at which the contract or transaction is considered for approval may be counted in the quorum at the meeting whether or not the director votes on any or all of the resolutions considered at the meeting.
17.4 Disclosure of Conflict of Interest or Property
A director or senior officer who holds any office or possesses any property, right or interest that could result, directly or indirectly, in the creation of a duty or interest that materially conflicts with that individual's duty or interest as a director or senior officer, must disclose the nature and extent of the conflict as required by the Business Corporations Act.
17.5 Director Holding Other Office in the Company
A director may hold any office or place of profit with the Company, other than the office of auditor of the Company, in addition to their office of director for the period and on the terms (as to remuneration or otherwise) that the directors may determine.
17.6 No Disqualification
No director or intended director is disqualified by their office from contracting with the Company either with regard to the holding of any office or place of profit the director holds with the Company or as vendor, purchaser or otherwise, and no contract or transaction entered into by or behalf of the Company in which a director is in any way interested is liable to be voided for that reason.
17.7 Professional Services by Director or Officer
A director or officer, or any person in which a director or officer has an interest, may act in a professional capacity for the Company, except as auditor of the Company, and the director or officer or such person is entitled to remuneration for professional services as if that director or officer were not a director or officer.
17.8 Director or Officer in Other Corporations
A director or officer may be or become a director, officer or employee of, or otherwise interested in, any person in which the Company may be interested as a shareholder or otherwise, and the director or officer is not accountable to the Company for any remuneration or other benefits received by them as director, officer or employee of, or from their interest in, such other person.
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18. Proceedings of Directors
18.1 Meetings of Directors
The directors may meet together for the conduct of business, adjourn and otherwise regulate their meetings as they think fit, and meetings of the directors held at regular intervals may be held at the place, at the time and on the notice, if any, as the directors may from time to time determine.
18.2 Voting at Meetings
Questions arising at any meeting of directors are to be decided by a majority of votes and, in the case of an equality of votes, the chair of the meeting does not have a second or casting vote.
18.3 Chair of Meetings
The following individual is entitled to preside as chair at a meeting of directors:
| (1) | the chair of the board, if any; |
| (2) | in the absence of the chair of the board, the president, if any, if the president is a director; or |
| (3) | any other director chosen by the directors if: |
| (a) | neither the chair of the board nor the president, if a director, is present at the meeting within 15 minutes after the time set for holding the meeting; |
| (b) | neither the chair of the board nor the president, if a director, is willing to chair the meeting; or |
| (c) | the chair of the board and the president, if a director, have advised the secretary, if any, or any other director, that they will not be present at the meeting. |
| 18.4 | Meetings by Telephone or Other Communications Medium |
A director may participate in a meeting of the directors or of any committee of the directors in person or by telephone if all directors participating in the meeting, whether in person or by telephone or other communications medium, are able to communicate with each other. A director may participate in a meeting of the directors or of any committee of the directors by a communications medium other than telephone if all directors participating in the meeting, whether in person or by telephone or other communications medium, are able to communicate with each other and if all directors who wish to participate in the meeting agree to such participation. A director who pru1icipates in a meeting in a manner contemplated by this Article 18.4 is deemed for all purposes of the Business Corporations Act and these Articles to be present at the meeting and to have agreed to participate in that manner.
18.5 Calling of Meetings
A director may, and the secretary or an assistant secretary of the Company, if any, on the request of a director must, call a meeting of the directors at any time.
18.6 Notice of Meetings
Other than for meetings held at regular intervals as determined by the directors pursuant to Article 18.1, reasonable notice of each meeting of the directors, specifying the place, day and time of that meeting must be given to each of the directors and the alternate directors by any method set out in Article 24 1.
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18.7 When Notice Not Required
It is not necessary to give notice of a meeting of the directors to a director or an alternate director if:
| (1) | the meeting is to be held immediately following a meeting of shareholders at which that director was elected or appointed, or is the meeting of the directors at which that director is appointed; or |
| (2) | the director or alternate director, as the case may be, has waived notice of the meeting. |
| 18.8 | Meeting Valid Despite Failure to Give Notice |
The accidental omission to give notice of any meeting of directors to, or the non-receipt of any notice by, any director or alternate director, does not invalidate any proceedings at that meeting.
18.9 Waiver of Notice of Meetings
Any director or alternate director may send to the Company a document signed by them waiving notice of any past, present or future meeting or meetings of the directors and may at any time withdraw that waiver with respect to meetings held after that withdrawal. After sending a waiver with respect to all future meetings and until that waiver is withdrawn, no notice of any meeting of the directors need be given to that director and, unless the director otherwise requires by notice in writing to the Company, to their alternate director, and all meetings of the directors so held are deemed not to be improperly called or constituted by reason of notice not having been given to such director or alternate director.
18.10 Quorum
The quorum necessary for the transaction of the business of the directors may be set by the directors and, if not so set, is deemed to be set at two directors or, if the number of directors is set at one, is deemed to be set at one director, and that director may constitute a meeting.
18.11 Validity of Acts Where Appointment Defective
An act of a director or officer is not invalid merely because of an irregularity in the election or appointment or a defect in the qualification of that director or officer.
18.12 Consent Resolutions in Writing
A resolution of the directors or of any committee of the directors may be passed without a meeting:
| (1) | in all cases, if each of the directors entitled to vote on the resolution consents to it in writing; or |
| (2) | in the case of a resolution to approve a contract or transaction in respect of which a director has disclosed that they have or may have a disclosable interest, if each of the other directors who are entitled to vote on the resolution consents to it in writing. |
A consent in writing under this Article may be by signed document, fax, e-mail or any other method of transmitting legibly recorded messages. A consent in writing may be in two or more counterparts which together are deemed to constitute one consent in writing. A resolution of the directors or of any committee of the directors passed in accordance with this Article 18.12 is effective on the date stated in the consent in writing or on the latest date stated on any counterpart and is deemed to be a proceeding at a meeting of directors or of the committee of the directors and to be as valid and effective as if it had been passed at a meeting of the directors or of the committee of the directors that satisfies all the requirements of the Business Corporations Act and all the requirements of these Articles relating to meetings of the directors or of a committee of the directors.
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19. Executive and Other Committees
| 19.1 | Appointment and Powers of Executive Committee |
The directors may, by resolution, appoint an executive committee consisting of the director or directors that they consider appropriate, and this committee has, during the intervals between meetings of the board of directors, all of the directors' powers, except:
| (1) | the power to fill vacancies in the board of directors; |
| (2) | the power to remove a director; |
| (3) | the power to change the membership of, or fill vacancies in, any committee of the directors; and |
| (4) | such other powers, if any, as may be set out in the resolution or any subsequent directors' resolution. |
| 19.2 | Appointment and Powers of Other Committees |
The directors may, by resolution:
| (1) | appoint one or more committees (other than the executive committee) consisting of the director or directors that they consider appropriate; |
| (2) | delegate to a committee appointed under paragraph (1) any of the directors ' powers, except: |
| (a) | the power to fill vacancies in the board of directors; |
| (b) | the power to remove a director; |
| (c) | the power to change the membership of, or fill vacancies in, any committee of the directors; and |
| (d) | the power to appoint or remove officers appointed by the directors; and |
| (3) | make any delegation referred to in paragraph (2) subject to the conditions set out in the resolution or any subsequent directors ' resolution. |
| 19.3 | Obligations of Committees |
In the exercise of the powers delegated to a committee appointed under Articles 19.1 or 19.2, the committee must:
| (1) | confirm to any rules that may from time to time be imposed on it by the directors; and |
| (2) | report every act or thing done in exercise of those powers at such times as the directors may require. |
| 19.4 | Powers of Board |
The directors may, at any time, with respect to a committee appointed under Articles 19.1 or 19.2:
| (1) | revoke or alter the authority given to the committee, or override a decision made by the committee, except as to acts done before such revocation, alteration or overriding; |
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| (2) | terminate the appointment of, or change the membership of, the committee; and |
| (3) | fill vacancies in the committee. |
| 19.5 | Committee Meetings |
Subject to Article 19.3(1) and unless the directors otherwise provide in the resolution appointing the committee or in any subsequent resolution, with respect to a committee appointed under Articles 19.1 or 19.2:
| (1) | the committee may meet and adjourn as it thinks proper; |
| (2) | the committee may elect a chair of its meetings but, if no chair of a meeting is elected, or if at a meeting the chair of the meeting is not present within 15 minutes after the time set for holding the meeting, the directors present who are members of the committee may choose one of their number to chair the meeting; |
| (3) | a majority of the members of the committee constitutes a quorum of the committee; and |
| (4) | questions arising at any meeting of the committee are determined by a majority of votes of the members present, and in case of an equality of votes, the chair of the meeting does not have a second or casting vote. |
20. Officers
20.1 Directors May Appoint Officers
The directors may, from time to time, appoint such officers, if any, as the directors determine and the directors may, at any time, terminate any such appointment.
20.2 Functions, Duties and Powers of Officers
The directors may, for each officer:
| (1) | determine the functions and duties of the officer; |
| (2) | entrust to and confer on the officer any of the powers exercisable by the directors on such terms and conditions and with such restrictions as the directors think fit; and |
| (3) | revoke, withdraw, alter or vary all or any of the functions, duties and powers of the officer. |
| 20.3 | Qualifications |
An officer is not required to hold a share in the capital of the Company as qualification for their office but must be qualified as required by the Business Corporations Act to become, act or continue to act as an officer. One person may hold more than one position as an officer of the Company. Any person appointed as the chair of the board or as a managing director must be a director. Any other officer need not be a director.
20.4 Remuneration and Terms of Appointment
All appointments of officers are to be made on the terms and conditions and at the remuneration (whether by way of salary, fee, commission, participation in profits or otherwise) that the directors think fit and are subject to termination at the pleasure of the directors, and an officer, in addition to such remuneration, may receive, after they cease to hold such office or leaves the employment of the Company, a pension or gratuity.
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21. Indemnification
21.1 Definitions
In this Article 21:
| (1) | “eligible penalty” means a judgment, penalty or fine awarded or imposed in, or an amount paid in settlement of, an eligible proceeding; |
| (2) | “eligible proceeding” means a legal proceeding or investigative action, whether current, threatened, pending or completed, in which a director, former director or alternate director of the Company (an “eligible party”) or any of the heirs and legal personal representatives of the eligible party, by reason of the eligible party being or having been a director or alternate director of the Company: |
| (a) | is or may be joined as a party; or |
| (b) | is or may be liable for or in respect of a judgment, penalty or fine in, or expenses related to, the proceeding; |
| (3) | “expenses” has the meaning set out in the Business Corporations Act. |
21.2 Mandatory Indemnification of Directors and Officers and Former Directors and Officers
The Company must indemnify a director, officer, former director or officer or alternate director of the Company and their heirs and legal personal representatives, as set out in the Business Corporations Act, against all eligible penalties to which such person is or may be liable, and the Company must, after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by such person in respect of that proceeding. Each director, officer, former director and officer and alternate director is deemed to have contracted with the Comp any on the terms of the indemnity contained in this Article 21.2.
21.3 Mandatory Advancement of Expenses
The Company must pay, as they are incurred in advance of the final disposition of an eligible proceeding, the expenses actually and reasonably incurred by an eligible party in respect of that proceeding but the Company must first receive from the eligible party a written undertaking that, if it is ultimately determined that the payment of expenses is prohibited by the Business Corporations Act, the eligible party will repay the amounts advanced.
21.4 Indemnification of Other Persons
The Company may indemnify any other person in accordance with the Business Corporations Act.
21.5 Non-Compliance with Business Corporations Act
The failure of a director, alternate director or officer of the Comp any to comply with the Business Corporations Act or these Articles does not invalidate any indemnity to which they are entitled under this Part.
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21.6 Company May Purchase Insurance
The Company may purchase and maintain insurance for the benefit of any person (or their heirs or legal personal representatives) who:
| (1) | is or was a director, alternate director, officer, employee or agent of the Company; |
| (2) | is or was a director, alternate director, officer, employee or agent of a corporation at a time when the corporation is or was an affiliate of the Company; |
| (3) | at the request of the Company, is or was a director, alternate director, officer, employee or agent of a corporation or of a partnership, trust, joint venture or other unincorporated entity; |
| (4) | at the request of the Company, holds or held a position equivalent to that of a director, alternate director or officer of a partnership, trust, joint venture or other unincorporated entity; |
against any liability incurred by them as such director, alternate director, officer, employee or agent or person who holds or held such equivalent position.
22. Dividends
| 22.1 | Payment of Dividends Subject to Special Rights |
The provisions of this Article 22 are subject to the rights, if any, of shareholders holding shares with special rights as to dividends.
22.2 Declaration of Dividends
The directors may from time to time declare and authorize payment of such dividends as they may deem advisable.
22.3 No Notice Required
The directors need not give notice to any shareholder of any declaration under Article 22.2.
22.4 Record Date
The directors may set a date as the record date for the purpose of determining shareholders entitled to receive payment of a dividend. The record date must not precede the date on which the dividend is to be paid by more than two months. If no record date is set, the record date is 5:00 p .m. on the date on which the directors pass the resolution declaring the dividend.
22.5 Manner of Paying Dividend
A resolution declaring a dividend may direct payment of the dividend wholly or partly by the distribution of specific assets or of fully paid shares or of bonds, debentures or other securities of the Company, or in any one or more of those ways.
22.6 Settlement of Difficulties
If any difficulty arises in regard to a distribution under Article 22.5, the directors may settle the difficulty as they deem advisable, and, in particular, may:
| (1) | set the value for distribution of specific assets; |
| (2) | determine that cash payments in substitution for all or any part of the specific assets to which any shareholders are entitled may be made to any shareholders on the basis of the value so fixed in order to adjust the rights of all parties; and |
| (3) | vest any such specific assets in trustees for the persons entitled to the dividend. |
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22.7 When Dividend Payable
Any dividend may be made payable on such date as is fixed by the directors.
22.8 Dividends to be Paid in Accordance with Number of Shares
All dividends on shares of any class or series of shares must be declared and paid according to the number of such shares held.
22.9 Receipt by Joint Shareholders
If several persons are joint shareholders of any share, any one of them may give an effective receipt for any dividend, bonus or other money payable in respect of the share.
22.10 Dividend Bears No Interest
No dividend bears interest against the Company.
22.11 Fractional Dividends
If a dividend to which a shareholder is entitled includes a fraction of the smallest monetary unit of the currency of the dividend, that fraction may be disregarded in making payment of the dividend and that payment represents full payment of the dividend.
22.12 Payment of Dividends
Any dividend or other distribution payable in cash in respect of shares may be paid by cheque, made payable to the order of the person to whom it is sent, and mailed to the ad dress of the shareholder, or in the case of joint shareholders, to the address of the joint shareholder who is first named on the central securities register, or to the person and to the address the shareholder or joint shareholders may direct in writing. The mailing of such cheque will, to the extent of the sum represented by the cheque (plus the amount of the tax required by law to be deducted), discharge all liability for the dividend unless such cheque is not paid on presentation or the amount of tax so deducted is not paid to the appropriate taxing authority.
22.13 Capitalization of Surplus
Notwithstanding anything contained in these Articles, the directors may from time to time capitalize any surplus of the Company and may from time to time issue, as fully paid, shares or any bonds, debentures or other securities of the Company as a dividend representing the surplus or any part of the surplus.
23. Documents, Records and Reports
| 23.1 | Recording of Financial Affairs |
The directors must cause adequate accounting records to be kept to record properly the financial affairs and condition of the Company and to comply with the Business Corporations Act.
23.2 Inspection of Accounting Records
Unless the directors determine otherwise, or unless otherwise determined by ordinary resolution, no shareholder of the Company is entitled to inspect or obtain a copy of any accounting records of the Company.
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24. Notices
24.1 Method of Giving Notice
Unless the Business Corporations Act or these Articles provides otherwise, a notice, statement, report or other record required or permit ted by the Business Corporations Act or these Articles to be sent by or to a person may be sent by any one of the following methods:
| (1) | prepaid mail addressed to the person at the applicable address for that person as follows: |
| (a) | for a record mailed to a shareholder, the shareholder's registered address; |
| (b) | for a record mailed to a director or officer, the prescribed address for mailing shown for the director or officer in the records kept by the Company or the mailing address provided by the recipient for the sending of that record or records of that class; |
| (c) | in any other case, the mailing address of the intended recipient; |
| (2) | delivery at the applicable address for that person as follows, addressed to the person: |
| (a) | for a record delivered to a shareholder, the shareholder's registered address; |
| (b) | for a record delivered to a director or officer, the prescribed address for delivery shown for the director or officer in the records kept by the Company or the delivery address provided by the recipient for the sending of that record or records of that class; |
| (c) | in any other case, the delivery address of the intended recipient; |
| (3) | fax to the fax number provided by the intended recipient for the sending of that record or records of that class; |
| (4) | e -mail to the e-mail address provided by the intended recipient for the sending of that record or records of that class; or |
| (5) | physical delivery to the intended recipient. |
| 24.2 | Deemed Receipt of Mailing |
A record that is mailed to a person by ordinary mail to the applicable address for that person referred to in Article 24.1 is deemed to be received by the person to whom it was mailed on the day, Saturdays, Sundays and holidays excepted, following the date of mailing. A record that is delivered to a person or their applicable address is deemed to be received by the person on receipt by that person or delivery to that address. A record that is sent to a person by fax or e-mail is deemed to be received by the person on transmission if sent during business hours at the place of intended receipt by that person and, if not sent during their business hours, on the next business day of the place of intended receipt of that person.
24.3 Certificate of Sending
A certificate signed by the secretary, if any, or other officer of the Company or of any other corporation acting in that behalf for the Company stating that a notice, statement, report or other record was addressed as required, and sent as permitted, by Article 24.1 is conclusive evidence of that fact.
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24.4 Notice to Joint Shareholders
A notice, statement, report or other record may be provided by the Company to the joint shareholders of a share by providing the notice to the joint shareholder first named in the central securities register in respect of the share.
24.5 Notice to Trustees
A notice, statement, report or other record may be provided by the Company to the persons entitled to a share in consequence of the death, bankruptcy or incapacity of a shareholder by:
| (1) | mailing the record, addressed to them: |
| (a) | by name, by the title of the legal personal representative of the deceased or incapacitated shareholder, by the title of trustee of the bankrupt shareholder or by any similar description; and |
| (b) | at the address, if any, supplied to the Company for that purpose by the persons claiming to be so entitled; or |
| (2) | if an address referred to in paragraph 24.5(1)(b) has not been supplied to the Company, by giving the notice in a manner in which it might have been given if the death, bankruptcy or incapacity had not occurred. |
25. Seal
25.1 Who May Attest Seal
Except as provided in Articles 25.2 and 25.3, the Company's seal, if any, must not be impressed on any record except when that impression is attested by the signatures of:
| (1) | any t wo directors; |
| (2) | any officer, together with any director; |
| (3) | if the Company only has one director, that director; or |
| (4) | any one or more directors or officers or persons as may be determined by the directors. |
| 25.2 | Sealing Copies |
For the purpose of certifying under seal a certificate of incumbency of the directors or officers of the Company or a true copy of any resolution or other document, despite Article 25.1, the impression of the seal may be attested by the signature of any director or officer.
25.3 Mechanical Reproduction of Seal
The directors may authorize the seal to be impressed by third p arties on share certificates or bonds, debentures or other securities of the Company as they may determine appropriate from time to time. To enable the seal to be impressed on any share certificates or bonds, debentures or other securities of the Company, whether in definitive or interim form, on which facsimiles of any of the signatures of the directors or officers of the Company are, in accordance with the Business Corporations Act or these Articles, printed or otherwise mechanically reproduced, there may be delivered to the person employed to engrave, lithograph or print such definitive or interim share certificates or bonds, debentures or other securities one or more unmounted dies reproducing the seal and the chair of the board or any senior officer together with the secretary, treasurer, secretary-treasurer, an assistant secretary, an assistant treasurer or an assistant secretary-treasurer may in writing authorize such person to cause the seal to be impressed on such definitive or interim share certificates or bonds, debentures or other securities by the use of such dies . Share certificates or bonds, debentures or other securities to which the seal has been so impressed are for all purposes deemed to be under and to bear the seal impressed on them.
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26. Prohibitions
26.1 Definitions
In this Article 26:
| (1) | “designated security” means: |
| (a) | a voting security of the Company; |
| (b) | a security of the Company that is not a debt security and that carries a residual right to participate in the earnings of the Company or, on the liquidation or winding up of the Company, in its assets; or |
| (c) | a security of the Company convertible, directly or indirectly, into a security described in paragraph (a) or (b); |
| (2) | “security” has the meaning assigned in the Securities Act (British Columbia); |
| (3) | “voting security” means a security of the Company that: |
| (a) | is not a debt security, and |
| (b) | carries a voting right either under all circumstances or under some circumstances that have occurred and are continuing. |
| 26.2 | Application |
Article 26.3 does not apply to the Company if and for so long as it is a public company or its designated securities are beneficially owned, directly or indirectly, by more than 50 persons or companies, counting any two or more joint registered owners as one beneficial owner, and not counting employees and former employees of the Company or its affiliates.
26.3 Consent Required for Transfer of Shares or Designated Securities
No share or designated security may be sold, transferred or otherwise disposed of without the consent of the directors and the directors are not required to give any reason for re fusing to consent to any such sale, transfer or other disposition.
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Part 27
Special Rights and Restrictions
27.1 Subordinate Voting Shares
An unlimited number of Subordinate Voting Shares, without nominal or par value, having attached thereto the special rights and restrictions as set forth below:
| (a) | Voting Rights. |
Holders of Subordinate Voting Shares shall be entitled to notice of and to attend at any meeting of the shareholders of the Company, except a meeting of which only holders of another particular class or series of shares of the Company shall have the right to vote. At each such meeting, holders of Subordinate Voting Shares shall be entitled to one vote in respect of each Subordinate Voting Share held.
| (b) | Alteration to Rights of Subordinate Voting Shares. |
As long as any Subordinate Voting Shares remain outstanding, the Company will not, without the consent of the holders of the Subordinate Voting Shares by separate special resolution, prejudice or interfere with any right or special right attached to the Subordinate Voting Shares.
| (c) | Dividends. |
Holders of Subordinate Voting Shares shall be entitled to receive, as and when declared by the directors, dividends in cash or property of the Company. No dividend will be declared or paid on the Subordinate Voting Shares unless the Company simultaneously declares or pays, as applicable, equivalent dividends (on an as-converted to Subordinate Voting Share basis) on the Multiple Voting Shares. In the event of the payment of a dividend in the form of shares, holders of Subordinate Voting Shares shall receive Subordinate Voting Shares, unless otherwise determined by the Board of Directors of the Company.
| (d) | Liquidation, Dissolution or Winding-Up. |
In the event of the liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary, or in the event of any other distribution of assets of the Company among its shareholders for the purpose of winding up its affairs, the holders of Subordinate Voting Shares shall, subject to the prior rights of the holders of any shares of the Company ranking in priority to the Subordinate Voting Shares, be entitled to participate rateably along with all other holders of Multiple Voting Shares (on an as-converted to Subordinate Voting Share basis) and Subordinate Voting Shares.
| (e) | Rights to Subscribe; Pre-Emptive Rights. |
The holders of Subordinate Voting Shares are not entitled to a right of first refusal to subscribe for, purchase or receive any part of any issue of Subordinate Voting Shares, or bonds, debentures or other securities of the Company now or in the future.
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| (f) | Subdivision or Consolidation. |
No subdivision or consolidation of the Subordinate Voting Shares shall occur unless, simultaneously, the Multiple Voting Shares and Exchangeable Shares are subdivided or consolidated in the same manner or such other adjustment is made so as to maintain and preserve the relative rights of the holders of the shares of each of the said classes.
| (g) | Conversion of Subordinate Voting Shares Upon an Offer. |
In the event that an offer is made to purchase Multiple Voting Shares, and the offer is one which is required, pursuant to applicable securities legislation or the rules of the Toronto Stock Exchange if the stock exchange on which the Multiple Voting Shares of the Company are listed has not implemented any rules with respect to "coattail protections", or if the Multiple Voting Shares are not then listed, to be made to all or substantially all the holders of Multiple Voting Shares in a province or territory of Canada to which the requirement applies, each Subordinate Voting Share shall become convertible at the option of the holder into Multiple Voting Shares at the inverse of the Conversion Ratio (as defined in Article 27.2(1)(f)(i)) then in effect, at any time while the offer is in effect until one day after the time prescribed by applicable securities legislation for the offeror to take up and pay for such shares as are to be acquired pursuant to the offer. The conversion right may only be exercised in respect of Subordinate Voting Shares for the purpose of depositing the resulting Multiple Voting Shares under the offer, and for no other reason. In such event, the Company shall deposit or cause the transfer agent for the Subordinate Voting Shares to deposit under the offer the resulting Multiple Voting Shares, on behalf of the holder. To exercise such conversion right, the holder or his or its attorney duly authorized in writing shall:
| (i) | give written notice to the transfer agent of the exercise of such right, and of the number of Subordinate Voting Shares in respect of which the right is being exercised; |
| (ii) | deliver to the transfer agent the share certificate or certificates representing the Subordinate Voting Shares in respect of which the right is being exercised, if applicable; and |
| (iii) | pay any applicable stamp tax or similar duty on or in respect of such conversion. |
No share certificates representing the Multiple Voting Shares, resulting from the conversion of the Subordinate Voting Shares will be delivered to the holders on whose behalf such deposit is being made. If Multiple Voting Shares, resulting from the conversion and deposited pursuant to the offer, are withdrawn by the holder or are not taken up by the offeror, or the offer is abandoned, withdrawn or terminated by the offeror or the offer otherwise expires without such Multiple Voting Shares being taken up and paid for, the Multiple Voting Shares resulting from the conversion will be re- converted into Subordinate Voting Shares at the then Conversion Ratio and the Company shall send or cause the transfer agent to send to the holder a share certificate representing the Subordinate Voting Shares. In the event that the offeror takes up and pays for the Multiple Voting Shares resulting from conversion, the Company shall cause the transfer agent to deliver to the holders thereof the consideration paid for such shares by the offeror.
| - A-3 - |
| (h) | Conversion of Subordinate Voting Shares into Non-Voting Exchangeable Shares. |
Each issued and outstanding Subordinate Voting Share may at any time, at the option of the holder, be converted into one Exchangeable Share. The conversion right may be exercised at any time and from time to time by notice in writing delivered to the transfer agent accompanied by the certificate or certificates representing the Subordinate Voting Shares or, if uncertificated, such other evidence of ownership as the transfer agent may require, in respect of which the holder wishes to exercise the right of conversion. The notice must be signed by the registered holder of the Subordinate Voting Shares in respect of which the right of conversion is being exercised or by his, her or its duly authorized attorney and must specify the number of Subordinate Voting Shares which the holder wishes to have converted, and shall be accompanied by sufficient monies necessary to pay any applicable stamp tax or similar duty on or in respect of such conversion. Upon receipt of the conversion notice and share certificate(s) or other evidence of ownership satisfactory to the transfer agent, the Company will issue a share certificate or other evidence of ownership representing Proportionate Voting Shares on the basis set out above to the registered holder of the Subordinate Voting Shares. If fewer than all of the Subordinate Voting Shares represented by a certificate accompanying the notice are to be converted, the holder is entitled to receive a new certificate representing the shares comprised in the original certificate which are not to be converted. Subordinate Voting Shares converted into Exchangeable Shares hereunder will automatically be cancelled.
27.2 Multiple Voting Shares
An unlimited number of Multiple Voting shares, without nominal or par value, having attached thereto the special rights and restrictions as set forth below:
| (a) | Voting Rights. |
Holders of Multiple Voting Shares shall be entitled to notice of and to attend at any meeting of the shareholders of the Company, except a meeting of which only holders of another particular class or series of shares of the Company shall have the right to vote. At each such meeting, holders of Multiple Voting Shares will be entitled to 15 votes in respect of each Subordinate Voting Share into which such Multiple Voting Share could ultimately then be converted, which for greater certainty, shall initially equal 15 votes per Multiple Voting Share.
| (b) | Alteration to Rights of Multiple Voting Shares. |
As long as any Multiple Voting Shares remain outstanding, the Company will not, without the consent of the holders of the Multiple Voting Shares by separate special resolution, prejudice or interfere with any right or special right attached to the Multiple Voting Shares. Consent of the holders of a majority of the outstanding Multiple Voting Shares shall be required for any action that authorizes or creates shares of any class having preferences superior to or on a parity with the Multiple Voting Shares. In connection with the exercise of the voting rights contained in this paragraph (b), each holder of Multiple Voting Shares will have one vote in respect of each Multiple Voting Share held.
| (c) | Dividends. |
The holder of Multiple Voting Shares shall have the right to receive dividends, out of any cash or other assets legally available therefor, pari passu (on an as converted to Subordinate Voting Share basis, assuming conversion of all Multiple Voting Shares into Subordinate Voting Shares at the Conversion Ratio (as defined in Article 27.2(1)(f)(i))) as to dividends and any declaration or payment of any dividend on the Subordinate Voting Shares. No dividend will be declared or paid on the Multiple Voting Shares unless the Company simultaneously declares or pays, as applicable, equivalent dividends (on an as-converted to Subordinate Voting Share basis) on the Subordinate Voting Shares. In the event of the payment of a dividend in the form of shares, holders of Multiple Voting Shares shall receive Multiple Voting Shares, unless otherwise determined by the Board of Directors of the Company.
| - A-4 - |
| (d) | Liquidation, Dissolution or Winding-Up. |
In the event of the liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary, or in the event of any other distribution of assets of the Company among its shareholders for the purpose of winding up its affairs, the holders of Multiple Voting Shares will, subject to the prior rights of the holders of any shares of the Company ranking in priority to the Multiple Voting Shares, be entitled to participate rateably along with all other holders of Multiple Voting Shares (on an as-converted to Subordinate Voting Share basis) and Subordinate Voting Shares.
| (e) | Rights to Subscribe; Pre-Emptive Rights. |
The holders of Multiple Voting Shares are not entitled to a right of first refusal to subscribe for, purchase or receive any part of any issue of Subordinate Voting Shares, or bonds, debentures or other securities of the Company now or in the future.
| (f) | Conversion. |
Holders of Multiple Voting Shares shall have conversion rights as follows (the "Conversion Rights"):
| (i) | Right to Convert. |
Each Multiple Voting Share shall be convertible, at the option of the holder thereof, at any time after the date of issuance of such share at the office of the Company or any transfer agent for such shares, into such number of fully paid and non- assessable Subordinate Voting Shares as is determined by multiplying the number of Multiple Voting Shares by the Conversion Ratio applicable to such share, determined as hereafter provided, in effect on the date the Multiple Voting Share is surrendered for conversion. The initial "Conversion Ratio" for shares of Multiple Voting Shares shall be one Subordinate Voting Share for each Multiple Voting Share; provided, however, that the Conversion Ratio shall be subject to adjustment as set forth in Sections 27.2(1)(f)(iv) and 27.2(1)(f)(v).
| (ii) | Automatic Conversion. |
| (A) | On the first business day following the first annual meeting of the shareholders of the Company held after the Subordinate Voting Shares become listed or quoted on a United States national securities exchange such as The NASDAQ Stock Market or The New York Stock Exchange, each Multiple Voting Share shall be automatically converted, without any further action, into such number of fully paid and non-assessable Subordinate Voting Shares as is determined by multiplying the number of Multiple Voting Shares by the Conversion Ratio, and each Permitted Holder of Multiple Voting Shares shall automatically be deemed to have exercised his, her or its rights under subsection 27.2(1)(f)(i) to convert such Multiple Voting Share into one fully paid and non-assessable Subordinate Voting Share. |
| - A-5 - |
| (B) | Upon the first date that any Multiple Voting Share shall be held by a person other than by a Permitted Holder, the Permitted Holder which held such Multiple Voting Share until such date, without any further action, shall automatically be deemed to have exercised his, her or its rights under subsection 27.2(1)(f)(i) to convert such Multiple Voting Share into one fully paid and nonassessable Subordinate Voting Share. |
| (C) | In addition, all Multiple Voting Shares held by a Permitted Holder will convert automatically, without any further action, into Subordinate Voting Shares at such time as the Permitted Holders that hold Multiple Voting Shares no longer as a group beneficially own, directly or indirectly and in the aggregate, at least 5% of the issued and outstanding shares of the Company on a non-diluted basis. |
| (D) | A Multiple Voting Share that is converted into Subordinate Voting Shares as provided for in subsection 27.2(1)(f)(ii)(A) or 27.2(1)(f)(ii)(B) will automatically be cancelled. |
| (E) | For the purposes hereof: |
| (i) | "Members of the Immediate Family" means with respect to any individual, each parent (whether by birth or adoption), spouse or child (including any step-child) or other descendants (whether by birth or adoption) of such individual, each spouse of any of the aforementioned persons, each trust created solely for the benefit of such individual and/or one or more of the aforementioned persons, and each legal representative of such individual or of any aforementioned persons (including without limitation a tutor, curator, mandatary due to incapacity, custodian, guardian or testamentary executor), acting in such capacity under the authority of the law, an order from a competent tribunal, a will or a mandate in case of incapacity or similar instrument. For the purposes of this definition, a person shall be considered the spouse of an individual if such person is legally married to such individual, lives in a civil union with such individual or is the common law partner (as defined in the Income Tax Act (Canada) as amended from time to time) of such individual. A person who was the spouse of an individual within the meaning of this paragraph immediately before the death of such individual shall continue to be considered a spouse of such individual after the death of such individual; and |
| (ii) | "Permitted Holders" means (a) Boris Jordan and any Members of the Immediate Family of Boris Jordan, and (b) any Person controlled, directly or indirectly by one or more of the Persons referred to in clause (a) above. |
| - A-6 - |
| (iii) | Mechanics of Conversion. |
Before any holder of Multiple Voting Shares shall be entitled to convert Multiple Voting Shares into Subordinate Voting Shares, the holder thereof shall surrender the certificate or certificates therefor, duly endorsed, at the office of the Company or of any transfer agent for Subordinate Voting Shares or the equivalent in any non-certificated inventory system (such as, for example, a Direct Registration System) administered by any applicable depository or transfer agent of the Company, and shall give written notice to the Company at its principal corporate office, of the election to convert the same (each, a "Conversion Notice") and the Subordinate Voting Shares resulting therefrom shall be registered in the name of the registered holder of the Multiple Voting Shares converted or, subject to payment by the registered holder of any stock transfer or applicable taxes and compliance with any other reasonable requirements of the Company in respect of such transfer, in such name or names as such registered holder may direct in writing. Upon receipt of such notice and certificate or certificates and, as applicable, compliance with such other requirements, the Company shall (or shall cause its transfer agent to), at its expense, as soon as practicable thereafter, remove or cause the removal of such holder from the register of holders in respect of the Multiple Voting Shares for which the conversion right is being exercised, add the holder (or any person or persons in whose name or names such converting holder shall have directed the resulting Subordinate Voting Shares to be registered) to the securities register of holders in respect of the resulting Subordinate Voting Shares, cancel or cause the cancellation of the certificate or certificates representing such Multiple Voting Shares and issue and deliver at such office to such holder, or to the nominee or nominees of such holder, a certificate or certificates or the equivalent in any non-certificated inventory system (such as, for example, a Direct Registration System) administered by any applicable depository or transfer agent of the Company, representing the Subordinate Voting Shares issued upon the conversion of such Multiple Voting Shares. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such surrender of the Multiple Voting Shares to be converted, and the person or persons entitled to receive the Subordinate Voting Shares issuable upon such conversion shall be treated for all purposes as the record holder or holders of such Subordinate Voting Shares as of such date. If less than all of the Multiple Voting Shares represented by any certificate are to be converted, the holder shall be entitled to receive a new certificate representing the Multiple Voting Shares represented by the original certificate which are not to be converted. A Multiple Voting Share that is converted into Subordinate Voting Shares as provided for in this subsection 27.2(1)(f) will automatically be cancelled.
| (iv) | Adjustments for Distributions. |
In the event the Company shall declare a distribution to holders of Subordinate Voting Shares payable in securities of other persons, evidences of indebtedness issued by the Company or other persons, assets (excluding cash dividends) or options or rights not otherwise causing adjustment to the Conversion Ratio (a "Distribution"), then, in each such case for the purpose of this Section 27.2(1)(f)(iv), the holders of Multiple Voting Shares shall be entitled to a proportionate share of any such Distribution as though they were the holders of the number of Subordinate Voting Shares into which their Multiple Voting Shares are convertible as of the record date fixed for the determination of the holders of Subordinate Voting Shares entitled to receive such Distribution.
| (v) | Recapitalizations; Stock Splits. |
If at any time or from time-to-time, the Company shall (i) effect a recapitalization of the Subordinate Voting Shares; (ii) issue Subordinate Voting Shares as a dividend or other distribution on outstanding Subordinate Voting Shares; (iii) subdivide the outstanding Subordinate Voting Shares into a greater number of Subordinate Voting Shares; (iv) consolidate the outstanding Subordinate Voting Shares into a smaller number of Subordinate Voting Shares; or (v) effect any similar transaction or action (each, a "Recapitalization"), provision shall be made so that the holders of Multiple Voting Shares shall thereafter be entitled to receive, upon conversion of Multiple Voting Shares, the number of Subordinate Voting Shares or other securities or property of the Company or otherwise, to which a holder of Subordinate Voting Shares deliverable upon conversion would have been entitled on such Recapitalization. In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 27.2(1)(f) with respect to the rights of the holders of Multiple Voting Shares after the Recapitalization to the end that the provisions of this Section 27.2(1)(f) (including adjustment of the Conversion Ratio then in effect and the number of Multiple Voting Shares issuable upon conversion of Multiple Voting Shares) shall be applicable after that event as nearly equivalent as may be practicable.
| - A-7 - |
| (vi) | No Fractional Shares and Certificate as to Adjustments. |
No fractional Subordinate Voting Shares shall be issued upon the conversion of any Multiple Voting Shares and the number of Subordinate Voting Shares to be issued shall be rounded down to the nearest whole Subordinate Voting Share. Whether or not fractional Subordinate Voting Shares are issuable upon such conversion shall be determined on the basis of the total number of Multiple Voting Shares the holder is at the time converting into Subordinate Voting Shares and the number of Subordinate Voting Shares issuable upon such aggregate conversion.
| (vii) | Adjustment Notice. |
Upon the occurrence of each adjustment or readjustment of the Conversion Ratio pursuant to this Section 27.2(1)(f), the Company, at its expense, shall promptly compute such adjustment or readjustment in accordance with the terms hereof and prepare and furnish to each holder of Multiple Voting Shares a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Company shall, upon the written request at any time of any holder of Multiple Voting Shares, furnish or cause to be furnished to such holder a like certificate setting forth (A) such adjustment and readjustment, (B) the Conversion Ratio for Multiple Voting Shares at the time in effect, and (C) the number of Subordinate Voting Shares and the amount, if any, of other property which at the time would be received upon the conversion of a Multiple Voting Share.
| (viii) | Effect of Conversion. |
All Multiple Voting Shares which shall have been surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares shall immediately cease and terminate at the time of conversion (the "Conversion Time"), except only the right of the holders thereof to receive Subordinate Voting Shares in exchange therefor and to receive payment in lieu of any fraction of a share otherwise issuable upon such conversion.
| (ix) | Retirement of Shares. |
Any Multiple Voting Share converted shall be retired and cancelled and may not be reissued as shares of such class or any other class or series, and the Company may thereafter take such appropriate action (without the need for shareholder action) as may be necessary to reduce the authorized number of Multiple Voting Shares accordingly.
| (x) | Disputes. |
Any holder of Multiple Voting Shares that beneficially owns more than 5% of the issued and outstanding Multiple Voting Shares may submit a written dispute as to the determination of the Conversion Ratio or the arithmetic calculation of the Conversion Ratio (as defined herein) by the Company to the Board of Directors with the basis for the disputed determinations or arithmetic calculations. The Company shall respond to the holder within five (5) business days of receipt, or deemed receipt, of the dispute notice with a written calculation of the Conversion Ratio, as applicable. If the holder and the Company are unable to agree upon such determination or calculation of the Conversion Ratio, as applicable, within five (5) business days of such response, then the Company and the holder shall, within one (1) business day thereafter, submit the disputed arithmetic calculation of the Conversion Ratio, as applicable, to the Company's independent, outside accountant. The Company, at the Company's expense, shall cause the accountant to perform the determinations or calculations and notify the Company and the holder of the results no later than five (5) business days from the time it receives the disputed determinations or calculations. Such accountant's determination or calculation, as the case may be, shall be binding upon all parties absent demonstrable error.
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| (g) | Notices of Record Date. |
Except as otherwise provided under applicable law, in the event of any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend (other than a cash dividend) or other distribution, any right to subscribe for, purchase or otherwise acquire any shares of any class or any other securities or property, or to receive any other right, the Company shall mail to each holder of Multiple Voting Shares, at least 20 days prior to the date specified therein, a notice specifying the date on which any such record is to be taken for the purpose of such dividend, distribution or right, and the amount and character of such dividend, distribution or right.
| (h) | Conversion of Multiple Voting Shares Upon an Offer. |
In addition to the conversion rights set out in Section 27.2(1)(f), in the event that an offer is made to purchase Subordinate Voting Shares, and the offer is one which is required, pursuant to applicable securities legislation or the rules of the Toronto Stock Exchange if the stock exchange on which the Subordinate Voting Shares of the Company are then listed has not implemented any rules with respect to "coattail protections", or if the Subordinate Voting Shares are not then listed, to be made to all or substantially all the holders of Subordinate Voting Shares in a province or territory of Canada to which the requirement applies, each Multiple Voting Share shall become convertible at the option of the holder into Subordinate Voting Shares at the Conversion Ratio then in effect, at any time while the offer is in effect until one day after the time prescribed by applicable securities legislation for the offeror to take up and pay for such shares as are to be acquired pursuant to the offer. The conversion right in this Section 27.2(1)(h) may only be exercised in respect of Multiple Voting Shares for the purpose of depositing the resulting Subordinate Voting Shares under the offer, and for no other reason. In such event, the Company shall or shall cause its transfer agent for the Subordinate Voting Shares to deposit under the offer the resulting Subordinate Voting Shares, on behalf of the holder.
To exercise such conversion right, the holder or his or its attorney duly authorized in writing shall:
| (i) | give written notice to the transfer agent of the exercise of such right, and of the number of Multiple Voting Shares in respect of which the right is being exercised; |
| (ii) | deliver to the transfer agent the share certificate or certificates representing the Multiple Voting Shares in respect of which the right is being exercised, if applicable; and |
| (iii) | pay any applicable stamp tax or similar duty on or in respect of such conversion. |
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No share certificates representing the Subordinate Voting Shares, resulting from the conversion of the Multiple Voting Shares will be delivered to the holders on whose behalf such deposit is being made. If Subordinate Voting Shares, resulting from the conversion and deposited pursuant to the offer, are withdrawn by the holder or are not taken up by the offeror, or the offer is abandoned, withdrawn or terminated by the offeror or the offer otherwise expires without such Subordinate Voting Shares being taken up and paid for, the Subordinate Voting Shares resulting from the conversion will be re-converted into Multiple Voting Shares at the inverse of Conversion Ratio then in effect and the Company shall send, or cause its transfer agent to send, to the holder a share certificate representing the Multiple Voting Shares. In the event that the offeror takes up and pays for the Subordinate Voting Shares resulting from conversion, the Company shall or shall cause its transfer agent to deliver to the holders thereof the consideration paid for such shares by the offeror.
27. 3 Rights, Privileges, Restrictions and Conditions Applicable to Subordinate Voting Shares – Redemption Provisions
Redemption
For the purposes of this Section 27.3, the following terms will have the meaning specified below:
| 1.1 | "Board" means the board of directors of the Company. |
| 1.2 | "Business" means the conduct of any activities relating to the cultivation, manufacturing and dispensing of cannabis and cannabis - derived products in the United States, which include the owning and operating of cannabis licenses. |
| 1.3 | "Fair Market Value" will equal: (i) the volume weighted average trading price (VWAP) of the Shares to be redeemed for the five (5) Trading Day period immediately after the date of the Redemption Notice on the Canadian Securities Exchange or other national or regional securities exchange on which such Shares are listed, or (ii) if no such quotations are available, the fair market value per share of such Shares as set forth in the Valuation Opinion. |
| 1.4 | "Governmental Authority" or "Governmental Authorities" means any United States or foreign, federal, state, county, regional, local or municipal government, any agency, administration, board, bureau, commission, department, service, or other instrumentality or political subdivision of the foregoing, and any Person with jurisdiction exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government or monetary policy (including any court or arbitration authority). |
| 1.5 | "Licenses" means all licenses, permits, approvals, orders, authorizations, registrations, findings of suitability, franchises, exemptions, waivers and entitlements issued by a Governmental Authority required for, or relating to, the conduct of the Business. |
| 1.6 | "Ownership" (and derivatives thereof) means (i) ownership of record as evidenced in the Company's share register, (ii) "beneficial ownership" as defined in Section 1 of the Business Corporations Act (British Columbia), or (iii) the power to exercise control or direction over a security; |
| 1.7 | "Person" means an individual, partnership, Company, limited liability Company, trust or any other entity. |
| 1.8 | "Redemption" has the meaning ascribed thereto in Section 27.3(5). |
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| 1.9 | "Redemption Date" means the date on which the Company will redeem and pay for the Shares pursuant to Section 27.3(5). The Redemption Date will be not less than thirty (30) Trading Days following the date of the Redemption Notice unless a Governmental Authority requires that the Shares be redeemed as of an earlier date, in which case, the Redemption Date will be such earlier date and if there is an outstanding Redemption Notice, the Company will issue an amended Redemption Notice reflecting the new Redemption Date forthwith. |
| 1.10 | "Redemption Notice" has the meaning ascribed thereto in Section 27.3(6). |
| 1.11 | "Redemption Price" means the price per Share to be paid by the Company on the Redemption Date for the redemption of Shares pursuant to Section 27.3(5) and will be equal to the Fair Market Value of a Share, unless otherwise required by any Governmental Authority; |
| 1.12 | "Shares" means the Subordinate Voting Shares of the Company. |
| 1.13 | "Significant Interest" means ownership of five percent (5%) or more of all of the issued and outstanding shares of the Company. |
| 1.14 | "Subject Shareholder" means a person, a group of persons acting in concert or a group of persons who, the Board reasonably believes, are acting jointly or in concert. |
| 1.15 | "Trading Day" means a day on which trades of the Shares are executed on the Canadian Securities Exchange or any national or regional securities exchange on which the Shares are listed. |
1.16 "Unsuitable Person" means
any person (including a Subject Shareholder) with a Significant Interest who a Governmental Authority granting the Licenses has determined to be unsuitable to own Shares; or
| (ii) | any person (including a Subject Shareholder) with a Significant Interest whose ownership of Shares may result in the loss, suspension or revocation (or similar action) with respect to any Licenses or in the Company being unable to obtain any new Licenses in the normal course, including, but not limited to, as a result of such person's failure to apply for a suitability review from or to otherwise fail to comply with the requirements of a Governmental Authority, as determined by the Board, in its sole discretion, after consultation with legal counsel and if a license application has been filed, after consultation with the applicable Governmental Authority. |
| 1.17 | "Valuation Opinion" means a valuation and fairness opinion from an investment banking firm of nationally recognized standing in Canada (qualified to perform such task and which is disinterested in the contemplated redemption and has not in the then past two years provided services for a fee to the Company or its affiliates) or a disinterested nationally recognized accounting firm. |
| (2) | Subject to Section 27.3(4), no Subject Shareholder will acquire or dispose of a Significant Interest, directly or indirectly, in one or more transactions, without providing 15 days' advance written notice to the Company by mail sent to the Company's registered office to the attention of the Corporate Secretary. |
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| (3) | If the Board reasonably believes that a Subject Shareholder may have failed to comply with the provisions of Section 27.3(2), the Company may apply to the Supreme Court of British Columbia, or such other court of competent jurisdiction for an order directing that the Subject Shareholder disclose the number of Shares held. |
| (4) | The provisions of Sections 27.3(2) and 27.3(3) will not apply to the ownership, acquisition or disposition of Shares as a result of: |
| 4.1 | any transfer of Shares occurring by operation of law including, inter alia, the transfer of Shares of the Company to a trustee in bankruptcy; |
| 4.2 | an acquisition or proposed acquisition by one or more underwriters or portfolio managers who hold Shares for the purposes of distribution to the public or for the benefit of a third party provided that such third party is in compliance with Section 27.3(2); or |
| 4.3 | the conversion, exchange or exercise of securities of the Company (other than the Shares) duly issued or granted by the Company, into or for Shares, in accordance with their respective terms. |
| (5) | At the option of the Company, Shares owned by an Unsuitable Person may be redeemed by the Company (the "Redemption") for the Redemption Price out of funds lawfully available on the Redemption Date. Shares redeemable pursuant to this Section 27.3(5) will be redeemable at any time and from time to time pursuant to the terms hereof. |
| (6) | In the case of a Redemption, the Company will send a written notice to the holder of the Shares called for Redemption, which will set forth: (i) the Redemption Date, (ii) the number of Shares to be redeemed on the Redemption Date, (iii) the formula pursuant to which the Redemption Price will be determined and the manner of payment therefor, (iv) the place where such Shares (or certificate thereto, as applicable) will be surrendered for payment, duly endorsed in blank or accompanied by proper instruments of transfer, (v) a copy of the Valuation Opinion (if the Resulting Issuer is no longer listed on the Canadian Securities Exchange or another recognized securities exchange), and (vi) any other requirement of surrender of the Shares to be redeemed (the "Redemption Notice"). The Redemption Notice may be conditional such that the Company need not redeem the Shares owned by an Unsuitable Person on the Redemption Date if the Board determines, in its sole discretion, that such Redemption is no longer advisable or necessary on or before the Redemption Date. The Company will send a written notice confirming the amount of the Redemption Price as soon as possible following the determination of such Redemption Price. |
| (7) | The Company may pay the Redemption Price by using its existing cash resources, incurring debt, issuing additional Shares, issuing a promissory note in the name of the Unsuitable Person, or by using a combination of the foregoing sources of funding. |
| (8) | To the extent required by applicable laws, the Company may deduct and withhold any tax from the Redemption Price. To the extent any amounts are so withheld and are timely remitted to the applicable Governmental Authority, such amounts shall be treated for all purposes herein as having been paid to the Person in respect of which such deduction and withholding was made. |
| (9) | On and after the date the Redemption Notice is delivered, any Unsuitable Person owning Shares called for Redemption will cease to have any voting rights with respect to such Shares and on and after the Redemption Date specified therein, such holder will cease to have any rights whatsoever with respect to such Shares other than the right to receive the Redemption Price, without interest, on the Redemption Date; provided, however, that if any such Shares come to be owned solely by persons other than an Unsuitable Person (such as by transfer of such Shares to a liquidating trust, subject to the approval of any applicable Governmental Authority), such persons may exercise voting rights of such Shares and the Board may determine, in its sole discretion, not to redeem such Shares. Following any Redemption in accordance with the terms of this Section 27.3, the redeemed Shares will be cancelled. |
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| (10) | All notices given by the Company to holders of Shares pursuant to this Schedule, including the Redemption Notice, will be in writing and will be deemed given when delivered by personal service, overnight courier or first-class mail, postage prepaid, to the holder's registered address as shown on the Company's share register. |
| (11) | The Company's right to redeem Shares pursuant to this Schedule will not be exclusive of any other right the Company may have or hereafter acquire under any agreement or any provision of the articles or the bylaws of the Company or otherwise with respect to the acquisition by the Company of Shares or any restrictions on holders thereof. |
| (12) | In connection with the conduct of its Business, the Company may require that a Subject Shareholder provide to one or more Governmental Authorities, if and when required, information and fingerprints for a criminal background check, individual history form(s), and other information required in connection with applications for Licenses. |
| (13) | In the event that any provision (or portion of a provision) of this Section 27.3 or the application thereof becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of Section 27.3 (including the remainder of such provision, as applicable) will continue in full force and effect. |
| 27.4 | Exchangeable Shares |
An unlimited number of Exchangeable shares, without nominal or par value, having attached thereto the special rights and restrictions as set forth below:
| (a) | Voting Rights. |
Except as otherwise required by the Business Corporations Act or these Articles, the holders of Exchangeable Shares shall not be entitled to receive notice of, attend, or vote at meetings of the shareholders of the Company; provided that the holders of Exchangeable Shares shall, however, be entitled to receive notice of meetings of shareholders called for the purpose of authorizing the dissolution of the Company or the sale of its undertaking or assets, or a substantial part thereof, but holders of Exchangeable Shares shall not be entitled to vote at such meetings of the shareholders of the Company.
| (b) | Dividends. |
The holders of the Exchangeable Shares shall not be entitled to receive any dividends.
| (c) | Dissolution. |
In the event of the dissolution, liquidation or winding-up of the Company, whether voluntary or involuntary, or any other distribution of assets of the Company among its shareholders for the purpose of winding-up its affairs, the holders of the Exchangeable Shares shall not be entitled to receive any amount, property or assets of the Company.
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| (d) | Exchange Right. |
Each issued and outstanding Exchangeable Share may at any time, at the option of the holder, be exchanged for one Subordinate Voting Share. The conversion right may be exercised at any time and from time to time by notice in writing delivered to the transfer agent accompanied by the certificate or certificates representing the Exchangeable Shares or, if uncertificated, such other evidence of ownership as the transfer agent may require, in respect of which the holder wishes to exercise the right of conversion. The notice must be signed by the registered holder of the Exchangeable Shares in respect of which the right of conversion is being exercised or by his, her or its duly authorized attorney and must specify the number of Exchangeable Shares which the holder wishes to have converted, and shall be accompanied by sufficient monies necessary to pay any applicable stamp tax or similar duty on or in respect of such conversion. Upon receipt of the conversion notice and share certificate(s) or other evidence of ownership satisfactory to the transfer agent, the Company will issue a share certificate or other evidence of ownership representing Subordinate Voting Shares on the basis set out above to the registered holder of the Exchangeable Shares. If fewer than all of the Exchangeable Shares represented by a certificate accompanying the notice are to be exchanged, the holder is entitled to receive a new certificate representing the shares comprised in the original certificate which are not to be converted. Exchangeable Shares converted into Subordinate Voting Shares hereunder will automatically be cancelled.
| (e) | Change of Control Adjustment. |
Upon any consolidation, amalgamation, arrangement, merger, redemption, compulsory acquisition or similar transaction of or involving the Subordinate Voting Shares, or a sale or conveyance of all or substantially all the assets of the Company to any other body corporate, trust, partnership or other entity (each a "Change of Control"), each Exchangeable Share that is outstanding on the effective date of a Change of Control shall remain outstanding and, upon the exchange of such Exchangeable Share thereafter, shall be entitled to receive and shall accept, in lieu of the number of Subordinate Voting Shares that the holder thereof would have been entitled to receive prior to such effective date, the number of shares or other securities or property (including cash) that such holder would have been entitled to receive on such Change of Control, if, on the effective date of such Change of Control, the holder had been the registered holder of the number of Subordinate Voting Shares which it was entitled to acquire upon the exchange of the Exchangeable Share as of such date (the "Adjusted Exchange Consideration"), provided that, in the event that, in connection with a Change of Control, the Exchangeable Shares are to be exchanged for securities of another body corporate, trust, partnership or other entity that are substantially equivalent in all respects to the terms of the Exchangeable Shares (the “Alternative Exchangeable Security”), as determined by the board of directors of the Company, acting reasonably, using the same exchange ratio as is applicable for the Subordinate Voting Shares in connection with such Change of Control, then in such circumstances, each Exchangeable Share that is outstanding on the effective date of a Change of Control shall be exchanged for the Alternative Exchangeable Security.
If the Adjusted Exchange Consideration includes cash, then the Company shall, or shall cause the other body corporate, trust, partnership or other entity resulting from or party to such Change of Control to, deposit with an escrow agent appointed by the Company on the closing date of the Change of Control the aggregate cash that would be payable to holders of Exchangeable Shares if all of the outstanding Exchangeable Shares were exchanged immediately following the Change of Control. All such funds shall be held by the escrow agent in a segregated interest-bearing account for the benefit of the holders of Exchangeable Shares, and shall solely be used to satisfy the cash portion of the Adjusted Exchange Consideration upon exchanges of Exchangeable Shares from time to time (with holders of Exchangeable Shares being entitled to any accumulated interest on the funds from the date of initial deposit to and including the business day immediately preceding the date of exchange, on a pro rata basis).
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If, in connection with a Change of Control, a holder of a Subordinate Voting Share may elect a form of consideration (including, without limitation, shares, other securities, cash or other property) from options made available, then all holders of Exchangeable Shares shall be deemed to have elected to receive an equal percentage of each of the different types of consideration offered, unless otherwise agreed in writing by all holders of Exchangeable Shares in accordance with the terms of the transaction and prior to any applicable election deadline, provided that if the option made available is between two securities, one of which is an Alternative Exchangeable Security, then all holders of Exchangeable Shares shall be deemed to have elected to receive solely Alternative Exchangeable Securities. In such case, the Adjusted Exchange Consideration shall equal the consideration that a holder of Subordinate Voting Shares making an election on the terms set forth in the preceding sentence would have received in the transaction.
After any adjustment pursuant to these terms, the term "Subordinate Voting Shares", where used above, 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, the holder is entitled to receive upon the exchange of Exchangeable Shares, and the number of Subordinate Voting Shares indicated by any exchange of an Exchangeable Share shall be interpreted to mean the number of Subordinate Voting Shares or other property or securities the holder of the Exchangeable Share is entitled to receive upon the exchange of an Exchangeable Share as a result of such adjustment and all prior adjustments pursuant to these terms.
| (f) | Subdivision or Consolidation. |
No subdivision or consolidation of the Exchangeable Shares may be carried out unless, at the same time, the Multiple Voting Shares and Subordinate Voting Shares are subdivided or consolidated in a manner so as to preserve the relative rights of the holders of each class of securities.
| (g) | Alteration to Rights of Exchangeable Shares. |
As long as any Exchangeable Shares remain outstanding, the Company will not, without the consent of the holders of the Exchangeable Shares by separate special resolution, prejudice or interfere with any right or special right attached to the Exchangeable Shares.
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Exhibit 99.5
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF THE 8TH DAY OF DECEMBER, 2023
BETWEEN
CURALEAF hOLDINGS, INC., AS ISSUER
AND
ODYSSEY TRUST COMPANY, AS TRUSTEE
THIS SECOND SUPPLEMENTAL INDENTURE made as of the 8th day of December, 2023
BETWEEN:
CURALEAF HOLDINGS, INC., a company incorporated under the laws of the Province of British Columbia (hereinafter called the “Issuer”);
AND
ODYSSEY TRUST COMPANY, a trust company existing under the laws of the Province of Alberta authorized to carry on the business of a trust company in British Columbia (hereinafter called the “Trustee”).
WITNESSETH THAT:
WHEREAS the Issuer has heretofore executed and delivered to the Trustee an indenture (the “Base Indenture”), dated as of December 15, 2021, providing for the issuance of Notes, as supplemented by a first supplemental indenture executed and delivered to the Trustee dated as of December 21, 2021 (the “First Supplemental Indenture”).
AND WHEREAS in connection with the proposed listing of the Issuer’s subordinate voting shares on the Toronto Stock Exchange, the Issuer wishes to implement a reorganization of its U.S. cannabis assets.
AND WHEREAS in order to facilitate the implementation of such reorganization, the Issuer wishes to amend the Indenture as further described herein.
AND WHEREAS Section 12.1 of the Indenture provides that with the affirmative votes of the Holders of at least a majority in principal amount of the Notes outstanding under the Indenture represented and voting at a meeting of Holders (including, without limitation, Holders of Additional Notes, if any), or by a resolution in writing of the Holders of at least a majority in principal amount of the Notes then outstanding, the Indenture, the Notes and the Guarantees may each be amended in order to implement the amendments herein provided.
AND WHEREAS the amendments described herein have been approved by a resolution in writing of the Holders of at least a majority in principal amount of the Notes outstanding.
AND WHEREAS the execution, acknowledgement and delivery of this second supplemental indenture (the “Second Supplemental Indenture”) has been duly authorized by a resolution of the directors of the Issuer.
AND WHEREAS the foregoing recitals are made as representations and statements of fact by the Issuer and not by the Trustee.
NOW THEREFORE in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Issuer and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
Article 1
INTERPRETATION
| 1.1 | Definitions and Interpretation |
In this Second Supplemental Indenture, except as otherwise defined herein or unless the context otherwise requires, all terms used but not defined in this Second Supplemental Indenture (including the recitals hereto) shall have the meanings specified in the Indenture. This Second Supplemental Indenture shall, unless otherwise required, be subject to the interpretation provisions contained in Article 1 of the Indenture. When entered into by the parties, this Second Supplemental Indenture shall be supplemental to, part of and read together with the Indenture as a single instrument.
If any term or provision contained in this Second Supplemental Indenture shall conflict or be inconsistent with any term or provision of the Indenture, the terms and provisions of this Second Supplemental Indenture shall govern.
When used in this Second Supplemental Indenture, the term “Indenture” means the Base Indenture as supplemented by the First Supplemental Indenture.
Article 2
AMENDMENTS
The Indenture shall be amended in accordance with
the amendments set forth in this Article 2 (language being inserted is evidenced by bold and underline formatting (indicated textually
in the same manner as the following example: bold and underline formatting) and language being deleted from is evidenced
by strike-through formatting (indicated textually in the same manner as the following example: strike-through
formatting).
| 2.1 | Amendments to Article 1 “Interpretation” of the Indenture |
Section 1.1 “Definitions” of the Indenture is amended as follows:
| (1) | The definition of “Asset Sales” in Section 1.1 of the Indenture is amended by adding, after paragraph (r) and before paragraph (s) of such definition, the following new paragraph (r.1): |
“(r.1) any transaction undertaken or completed in connection with or as a result of the Reorganization;”
| (2) | The definition of “Change of Control” in Section 1.1 of the Indenture is amended by adding the following sentence at the end of such definition: |
“Notwithstanding anything to the contrary in this Indenture, the transactions undertaken or completed in connection with or as a result of the Reorganization shall not, for any purposes hereof, constitute a Change of Control.”
| (3) | The definition of “Disqualified Stock” in Section 1.1 of the Indenture is amended and restated in its entirety as follows: |
“Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is one year after the date on which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Issuer or a Restricted Subsidiary thereof to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Issuer or a Restricted Subsidiary thereof may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 6.9. The term “Disqualified Stock” will also include any options, warrants or other rights that are convertible into Disqualified Stock or that are redeemable at the option of the holder, or required to be redeemed, prior to the date that is one year after the date on which the Notes mature. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Issuer and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.
| (4) | After the definition of “Lien” and before the definition of “LVTS” in Section 1.1 of the Indenture, the following definition is added: |
““Listing” means the listing and posting for trading of the subordinate voting shares of the Issuer on the Toronto Stock Exchange, and transactions ancillary thereto.”
| (5) | The definition of “Permitted Investments” in Section 1.1 of the Indenture is amended by adding, after paragraph (z) and before paragraph (aa) of such definition, the following new paragraph (z.1): |
“(z.1) any transaction undertaken or completed in connection with or as a result of the Reorganization;”
| (6) | The definition of “Subsidiary” in Section 1.1 of the Indenture is amended and restated in its entirety as follows: |
“Subsidiary” means, with respect to any specified Person:
(a) any
corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election of directors, managers or Trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a combination
thereof); and
(b) any partnership (i) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (ii) the only general partners of which are such Person or one or more Subsidiaries of such Person (or any combination thereof); or
(c) any other Person whose financial results are consolidated in the financial statement of that specified Person.”
| (7) | After the definition of “Remaining Scheduled Payments” and before the definition of “Replacement Assets” in Section 1.1 of the Indenture, the following definition is added: |
““Reorganization” means any transaction or series of transactions pursuant to which (a) the Issuer would exchange or replace the Voting Stock it holds in Curaleaf, Inc. (or any parent company thereof or subsidiary thereof) for non-voting Capital Stock, (b) Voting Stock of Curaleaf, Inc. (or any parent company thereof or subsidiary thereof) would be issued to, or held by, a third-party investor (including, as applicable, through the exchange of Equity Interests held in the Issuer for such Voting Stock), and (iii) transactions ancillary thereto or with a view of implementing the foregoing or otherwise required to consummate or maintain the Listing; provided that, further to such transactions, the financial results of Curaleaf, Inc. (or such parent company or subsidiary thereof) would continue to be consolidated with the Issuer’s financial statements; and further provided that any transaction undertaken to unwind the aforementioned transaction, including any repurchase, exchange or transfer of the Voting Stock held by the third-party investor, shall be deemed to form part of the Reorganization.”
| 2.2 | Amendments to Article 2 “The Notes” of the Indenture |
Article 2 “The Notes” of the Indenture is amended as follows:
| (1) | Section 2.12(e) of the Indenture is amended and restated in its entirety as follows: |
“(e) Wherever in this Indenture, any Supplemental Indenture or any Note there is a mention, in any context, of the payment of interest, such mention is deemed to include the payment of interest on amounts in default to the extent that, in such context, such interest is, was or would be payable pursuant to this Indenture, the Supplemental Indenture or the Note, and express mention of interest on amounts in default in any of the provisions of this Indenture will not be construed as excluding such interest in those provisions of this Indenture where such express mention is not made. In addition, wherever in this Indenture, any Supplemental Indenture or any Note (including for greater certainty under Sections 6.1 and 7.3) there is a mention, in any context, of the payment of interest by the Issuer or the taking by the Issuer of any action relating to the payment of interest, such mention is deemed to allow the payment of interest or the taking of any such action to be made directly or indirectly by a Restricted Subsidiary of the Issuer in lieu of the Issuer.”
| (2) | Section 2.13 “Payments of Amounts due on Maturity” is amended by adding a new subsection 2.13(c) to read as follows: |
“(c) Wherever in this Indenture, any Supplemental Indenture or any Note (including for greater certainty under Sections 6.1 and 7.3) there is a mention, in any context, of the payment of principal by the Issuer or the taking by the Issuer of any action relating to the payment of principal, such mention is deemed to allow the payment of principal or the taking of any such action to be made directly or indirectly by a Restricted Subsidiary of the Issuer in lieu of the Issuer.”
| (3) | Section 2.17 of the Indenture is amended and restated in its entirety as follows: |
“2.17 Representation Regarding Third Party Interest
The Issuer hereby represents to the Trustee that any account to be opened by, or interest to be held by, the Trustee in connection with this Indenture, for or to the credit of the Issuer or any Restricted Subsidiary thereof, either (a) is not intended to be used by or on behalf of any third party; or (b) is intended to be used by or on behalf of a third party, in which case the Issuer or the applicable Restricted Subsidiary thereof hereby agrees to complete, execute and deliver forthwith to the Trustee a declaration, in the Trustee’s prescribed form or in such other form as may be reasonably satisfactory to it, as to the particulars of such third party.”
| 2.3 | Amendments to Article 3 “Terms of the 2026 Notes” of the Indenture |
Section 3.7 “Optional Redemption” is amended by adding a new subsection 3.7(f) to read as follows:
“(f) Wherever in this Section 3.7 there is a mention, in any context, of the redemption by the Issuer of the 2026 Notes or of any action relating to such redemption, such mention is deemed to allow the payment of the relevant redemption price for the 2026 Notes or the taking of any such action, directly or indirectly, by any Restricted Subsidiary of the Issuer in lieu of the Issuer.”
| 2.4 | Amendments to Article 5 “Redemption and Purchase of Notes” of the Indenture |
Article 5 “Redemption and Purchase of Notes” is amended by adding a new Section 5.11 to read as follows:
“5.11 Redemption by a Restricted Subsidiary
Wherever in this Article 5 or elsewhere in this Indenture, any Supplemental Indenture or any Note there is a mention, in any context, of the redemption or purchase by the Issuer of Notes or of any action relating to such redemption, such mention is deemed to allow the payment of the relevant redemption price for any such Notes or the taking of any such action, directly or indirectly, by any Restricted Subsidiary of the Issuer in lieu of the Issuer.”
| 2.5 | Amendments to Article 6 “Covenants of the Issuer” of the Indenture |
Article 6 “Covenants of the Issuer” is amended as follows:
| (1) | Section 6.1 “Payment of Principal, Premium, and Interest” is amended by adding a new subsection (c) to read as follows: |
“(c) For greater certainty, any Restricted Subsidiary of the Issuer may, directly or indirectly, fulfill any of the obligations of the Issuer under this Section 6.1.”
| (2) | Section 6.11(b) is amended by adding, after paragraph (iii) and before paragraph (iv) of such Section, the following new paragraph (iii.1): |
“(iii.1) existing as a result of the Reorganization or otherwise existing under, by reason of or with respect to the rules, policies or guidelines of any stock exchange on which any class of Capital Stock of the Issuer is listed for trading;”
| (3) | Section 6.15 “Repurchase at the Option of Holders – Change of Control” is amended by adding a new subsection (k) to read as follows: |
“(k) Wherever in this Section 6.15 there is a mention, in any context, of a Change of Control Offer or a Change of Control Payment or of any action relating thereto, such mention is deemed to allow the making of any such Change of Control Offer, the payment for such Change of Control Payment, or the taking of any such action, in each case, directly or indirectly, by any Restricted Subsidiary of the Issuer in lieu of the Issuer.”
| (4) | Section 6.16 “Repurchase at the Option of Holders – Asset Sales” is amended by adding a new subsection (i) to read as follows: |
“(i) Wherever in this Section 6.16 there is a mention, in any context, of an Asset Sale Offer or an Advance Offer or of any action relating thereto, such mention is deemed to allow the making of any such Asset Sale Offer or Advance Offer, the payment for such Asset Sale Offer or Advance Offer, or the taking of any such action, in each case, directly or indirectly, by any Restricted Subsidiary of the Issuer in lieu of the Issuer.”
| 2.6 | Amendments to Article 10 “Successors to the Issuer and the Restricted Subsidiaries” of the Indenture |
Section 10.1(c)(ii) of the Indenture is amended and restated in its entirety as follows:
“(ii) any consolidation, amalgamation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets (A) between or among the Issuer and/or its Restricted Subsidiaries, that are Guarantors, or (B) any transaction undertaken or completed in connection with or as a result of the Reorganization.”
Article 3
MISCELLANEOUS PROVISIONS
| 3.1 | Confirmation of Indenture |
On the date hereof, the Indenture shall be supplemented in accordance with this Second Supplemental Indenture, and this Second Supplemental Indenture shall form part of the Indenture for all purposes, and the holder of every Note heretofore or hereafter authenticated and delivered under the Indenture shall be bound thereby. The Indenture, as supplemented by this Second Supplemental Indenture, shall remain in full force and effect as supplemented by this Second Supplemental Indenture and is in all respects ratified and confirmed.
| 3.2 | Acceptance of Trusts |
The Trustee hereby accepts the trusts in the Indenture, as amended and supplemented by this Second Supplemental Indenture, and agrees to perform the same upon the terms and conditions and subject to the provisions set forth in the Indenture as supplemented by this Second Supplemental Indenture.
| 3.3 | Execution |
This Second Supplemental Indenture may be simultaneously executed 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. Delivery of an executed signature page to this Second Supplemental Indenture by any party hereto by facsimile transmission or PDF shall be as effective as delivery of a manually executed copy of this Second Supplemental Indenture by such party.
| 3.4 | Formal Date |
For the purpose of convenience, this Second Supplemental Indenture may be referred to as bearing the formal date of the 8th day of December, 2023 irrespective of the actual date of execution hereof.
| 3.5 | Applicable Law |
This Second Supplemental Indenture and the New Notes shall be construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein and shall be treated in all respects as British Columbia contracts.
[The remainder of this page is intentionally left blank]
IN WITNESS whereof the parties hereto have executed these presents under their respective corporate seals and the hands of their proper officers in that behalf.
| Issuer | CURALEAF HOLDINGS, INC. | ||
| By: | (signed) “Matt Darin” | ||
| Name: | Matt Darin | ||
| Title: | Chief Executive Officer | ||
| Trustee | ODYSSEY TRUST COMPANY | ||
| By: | (signed) “Dan Sander” | ||
| Name: | Dan Sanders | ||
| Title: | President, Corporate Trust | ||
| By: | (signed) “Amy Douglas” | ||
| Name: | Amy Douglas | ||
| Title: | Director, Corporate Trust | ||
[Signature Page to Second Supplemental Indenture]
Exhibit 99.6
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SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT made as of December 8, 2023 (the “Agreement Date”) between:
CURALEAF, INC., a company incorporated under the laws of the state of Delaware
(the “Company”)
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LIFEBROOK INVESTMENTS LTD., an entity formed under the laws of England and Wales
(the “Subscriber”).
WHEREAS, in connection with the Proposed Transaction (as defined herein), on or prior to the Closing Date (as defined herein), the Company shall adopt and file with the Secretary of State of the State of Delaware its Seventh Amended and Restated Certificate of Incorporation in substantially the form attached hereto as Exhibit A (the “Restated Certificate”) to (i) authorize one (1) share of Class A Voting Common Stock, $0.0001 par value per share (the “Class A Common Stock”), 999 shares of Class B Non-Voting Common Stock, $0.0001 par value per share (the “Class B Common Stock”), and 1,000 shares of Class C Voting Common Stock, $0.0001 par value per share (the “Class C Common Stock”); and (ii) reclassify the 100 shares of the Company’s Common Stock, $0.00001 par value per share, currently held by Curaleaf Holdings, as 999 shares of Class B Common Stock of the Company, such that Curaleaf Holdings will no longer have voting control of the Company.
WHEREAS the Subscriber wishes to purchase from the Company, and the Company wishes to sell to the Subscriber, one (1) share of Class A Common Stock (the “Share”) for an aggregate subscription amount of USD $1,000,000 (the “Subscription Amount”) payable in the manner set forth below, in consideration of the transfer, assignment and surrender of the Consideration Shares (as defined herein) in favor of the Company.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the respective covenants and agreements of the Parties hereinafter contained and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each Party), the Parties agree as follows:
Article 1
INTERPRETATION
| 1.1 | Definitions |
Whenever used in this Agreement, unless there is something in the subject matter or context inconsistent therewith, the following words and phrases shall have the respective meanings ascribed to them as follows:
“Accredited Investor Status Certificate” has the meaning provided in Section 4.1(c).
“Act” has the meaning provided in Section 4.3(h).
“Affiliate” means, with respect to any Person, any other Person who, directly or indirectly (including through one or more intermediaries), controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control,” when used with respect to any specified Person, shall mean the power, direct or indirect, to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or partnership or other ownership interests, by contract or otherwise; provided, however, that a Person that, directly or indirectly, owns or controls over 50% or more of any voting securities, partnership, or other interests that provide the ability to cause the direction of the management and policies of such Person shall be deemed to control such other Person; and the terms “controlling” and “controlled” shall have correlative meanings.
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“Agreement” means this subscription agreement and all exhibits and schedules attached to it, as each may be amended, modified, supplemented, or restated from time to time.
“Agreement Date” has the meaning provided in the preamble of this Agreement.
“Board” means the board of directors of the Company.
“Business Day” means a day other than a Saturday, Sunday or any other day on which the principal banks located in the City of New York, New York are not open for business.
“Cannabis Code” means any laws or regulations promulgated or enacted by any state or local jurisdiction in which the Company and its Subsidiaries have operations pertaining to cannabis cultivation, dispensing, sale, storage, manufacturing, distribution, transporting, testing or other commercial cannabis activities.
“Cannabis Regulatory Body” means all applicable state and local licensing authorities with authority under a Cannabis Code, as the case may be.
“Class A Common Stock” has the meaning provided in the recitals to this Agreement.
“Class B Common Stock” has the meaning provided in the recitals to this Agreement.
“Class C Common Stock” has the meaning provided in the recitals to this Agreement.
“Closing” means the closing of the purchase and sale of the Share hereunder.
“Closing Date” means the date on which the Closing occurs.
“Closing Document” means any document delivered at or subsequent to the Time of Closing as provided in or pursuant this Agreement.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company” has the meaning provided in the preamble of this Agreement.
“Consideration Shares” has the meaning provided in Section 2.2(a).
“CSA” means the Controlled Substances Act.
“Curaleaf Holdings” means Curaleaf Holdings, Inc., a corporation governed by the laws of the province of British Columbia, Canada.
“DEA” has the meaning provided in Section 4.3(a).
“DOJ” has the meaning provided in Section 4.3(a).
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“Exchange” means the principal Canadian national or regional securities exchange on which the Subordinate Voting Shares are then listed, or, if the Subordinate Voting Shares are not then listed on a Canadian national or regional securities exchange, the principal other market on which the Subordinate Voting Shares are then traded.
“FDA” has the meaning provided in Section 4.3(d).
“FinCEN” has the meaning provided in Section 4.3(e).
“GAAP” means generally accepted accounting principles in effect from time to time in the United States as set forth in pronouncements, statements and opinions of the Financial Accounting Standards Board (and its predecessors).
“Government Authority” means (i) any governmental or public department, central bank, court, minister, governor-in-council, cabinet, commission, tribunal, board, bureau, agency, commissioner or instrumentality, whether international, multinational, national, federal, provincial, state, municipal, local, or other; (ii) any subdivision or authority of any of the above; (iii) any stock exchange; and (iv) any quasi-governmental or private body exercising any regulatory, expropriation or taxing authority under or for the account of any of the above.
“Indenture” means the trust indenture dated as of the 15th day of December 2021 between Curaleaf Holdings, as issuer, and Odyssey Trust Company, as trustee, providing for the issuance of Notes, as supplemented pursuant to a First Supplemental Indenture dated as of the 21st day of December 2021 between Curaleaf Holdings, as issuer, and Odyssey Trust Company, as trustee, providing for the issue of additional Notes, and as the same may be further amended, supplemented or modified from time to time.
“IRS” has the meaning provided in Section 4.3(a).
“Law” means any domestic or foreign federal, state or local statute, law, ordinance or code, or any written rules, regulations or administrative interpretations issued by any Governmental Authority pursuant to any of the foregoing, and any order, writ, injunction, directive, judgment or decree of a court of competent jurisdiction applicable to the Parties or their respective properties, assets, officers, directors, managers, employees or agents, as the case may be.
“Material Adverse Effect” means any event that has had or would reasonably be expected to have a material adverse effect on the business, financial condition or results of operations of the Company and/or its Subsidiaries, taken as a whole.
“Memorandum” has the meaning provided in Section 4.3(h).
“Noteholder Approval” means the required approval of the Noteholders of at least a majority in principal amount of the Notes represented and voting at the Noteholder meeting scheduled for August 18, 2023 at 9:00 a.m. (New York time), or through a written consent provided in accordance with the terms of the Indenture, with respect to certain proposed amendments to the Indenture in connection with the Proposed Transaction, all as more fully described in the notice of meeting and consent solicitation statement and information circular of Curaleaf Holdings dated July 14, 2023.
“Noteholders” means the holders of Notes.
“Notes” means the senior secured notes due December 15, 2026 issued by Curaleaf Holdings under the Indenture.
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“Offering” means the offering of the Share to be issued and sold by the Company to the Subscriber pursuant to this Agreement on the Closing Date.
“Outside Date” means March 31, 2024 or such later date as may be agreed to in writing by the Parties.
“Parties” means the parties to this Agreement and “Party” means any one of them.
“PATRIOT Act” has the meaning provided in Section 4.1(s).
“PCMLTFA” has the meaning provided in Section 4.1(s).
“Person” includes any individual (whether acting as an executor, trustee administrator, legal representative or otherwise), company, firm, partnership, sole proprietorship, syndicate, joint venture, trustee, trust, unincorporated organization or association, and pronouns have a similar extended meaning.
“POCA” has the meaning provided in Section 4.1(s).
“Proposed Transaction” means Curaleaf Holdings’ and the Company’s proposed internal reorganization in order for Curaleaf Holdings to list the Subordinate Voting Shares on the TSX (the “TSX Listing”).
“Protection Agreement” means the protection agreement to be entered into by the Company and Curaleaf Holdings, in the form attached hereto as Exhibit B.
“SEC” means the United States Securities and Exchange Commission.
“Section 280(E)” has the meaning provided in Section 4.3(l).
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Securities Laws” means, as applicable, the securities laws, regulations, rules, rulings and orders in each of the states and territories the United States, the applicable policy statements, notices, blanket rulings, orders and all other regulatory instruments of the securities regulators in each of the states and territories of the United States.
“Share” has the meaning provided in the recitals to this Agreement.
“Shareholders Agreement” means the shareholders agreement with respect to the Company, to be entered into by and among the Company, Curaleaf Holdings and the Subscriber, in the form attached hereto as Exhibit C.
“State and/or Local Cannabis License” means any license required by a U.S. state or municipality in order to operate a cannabis business or to own or lease property used by a cannabis business within that state or municipality’s jurisdiction.
“Subordinate Voting Shares” means the Subordinate Voting Shares in the capital of Curaleaf Holdings or, in the event that Curaleaf Holdings is acquired by a third-party, the shares of such Person, provided that the shares of such Person shall be listed on a recognized stock exchange in Canada or the United States.
“Subscriber” has the meaning provided in the preamble of this Agreement.
“Subscription Amount” has the meaning provided in the recitals to this Agreement.
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“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association, or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; or (ii) if a limited liability company, partnership, association, or other business entity (other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof and for this purpose, a Person or Persons owns a majority ownership interest in such a business entity if such Person or Persons shall control any board of managers or similar of such business entity. The term “Subsidiary” shall include all Subsidiaries of any such Subsidiary.
“Time of Closing” means 8:00 a.m. (Toronto time) on the Closing Date, or such other time as may be agreed to by the Parties;
“Trade Sanctions” has the meaning provided in Section 4.1(t).
“Transaction Documents” means this Agreement, the Protection Agreement, the Shareholders Agreement, the Accredited Investor Status Certificate, and the Closing Documents.
“TSX” means the Toronto Stock Exchange.
“U.S. Federal Cannabis Laws” means any U.S. Federal law, civil, criminal or otherwise, that prohibits or penalizes, the advertising, cultivation, harvesting, production, distribution, sale and possession of marijuana (as defined in the CSE) and/or related substances or products containing or relating to the same, and related activities.
“United States” or “U.S.” means the United States of America, its territories and possessions, any State of the United States and the District of Columbia.
| 1.2 | Interpretation |
| (a) | The words “hereof,” “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. |
| (b) | Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words or words of like import. |
| (c) | Words importing the singular number only shall include the plural and vice versa, words importing the masculine gender shall include the feminine gender and words importing Persons shall include firms and corporations and vice versa. |
| (d) | Unless otherwise specified, all dollar amounts in this Agreement and the schedules attached hereto, including the symbol “$”, are expressed in United States dollars. |
| (e) | The division of this Agreement into Articles, Sections, schedules and other subdivisions and the inclusion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The headings in this Agreement are not intended to be full or precise descriptions of the text to which they refer. Unless something in the subject matter or context is inconsistent therewith, references herein to an Article, Section, Subsection, paragraph, clause or schedule are to the applicable article, section, subsection, paragraph, clause or schedule of this Agreement. |
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| (f) | Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be applied in the construction or interpretation of this Agreement. No prior draft of this Agreement nor any course of performance or course of dealing shall be used in the interpretation or construction of this Agreement. No parole evidence shall be introduced in the construction or interpretation of this Agreement unless the ambiguity or uncertainty in issue is plainly discernable from a reading of this Agreement without consideration of any extrinsic evidence. Although the same or similar subject matters may be addressed in different provisions of this Agreement, the Parties intend that, except as reasonably apparent on the face of the Agreement or as expressly provided in this Agreement, each such provision shall be read separately, be given independent significance and not be construed as limiting any other provision of this Agreement (whether or not more general or more specific in scope, substance or content). The doctrine of election of remedies shall not apply in constructing or interpreting the remedies provisions of this Agreement or the equitable power of a court considering this Agreement, or the transactions contemplated hereby. |
| 1.3 | Schedules |
The following Exhibits are attached to and form an integral part of this Agreement:
Exhibit A - Restated Certificate
Exhibit B - Form of Protection Agreement
Exhibit C - Form of Shareholders Agreement
Exhibit D - Accredited Investor Status Certificate
Exhibit E - Restated Bylaws
Article 2
SUBSCRIPTION AND DESCRIPTION OF SECURITIES
| 2.1 | Subscription for the Share |
The Subscriber agrees to subscribe for and purchase from the Company and the Company agrees to issue and sell to the Subscriber the Share, on and subject to the terms and conditions set out in this Agreement, for the Subscription Amount which is payable as described in this Article 2.
| 2.2 | Satisfaction of the Subscription Amount |
| (a) | In full satisfaction of the aggregate Subscription Amount for the Share, the Subscriber shall cause the payment for the Share through the transfer, assignment and surrender in favor of the Company of Subordinate Voting Shares the Subscriber owns in the capital of Curaleaf Holdings, having an aggregate fair market value of USD $1,000,000 (determined based on the volume weighted average trading price of the Subordinate Voting Shares on the Canadian Securities Exchange for the five trading days prior to the Closing Date, and converted into U.S. dollars using the exchange rate published by the Bank of Canada for the conversion of Canadian dollars into U.S. dollars on the Business Day prior to the Closing Date) (the “Consideration Shares”), or in any other manner mutually agreed upon by the Parties; the Parties acknowledge and agree that such Consideration Shares have a fair market value equal to the Subscription Amount. The Subscriber hereby covenants and agrees to deliver the Consideration Shares to the Company at the Closing or promptly following the Closing, and in no event more than ten (10) Business Days following the Closing Date. |
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| (b) | On the Closing Date, at the Time of Closing, and subject to the filing of the Restated Certificate with the State of Delaware, the Company shall record on the books and records of the Company the issuance of the Share subscribed for hereunder and register such Share in the name of the Subscriber. |
Article 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
| 3.1 | Representations, Warranties and Covenants of the Company |
The Company hereby represents and warrants to, and covenants with the Subscriber as follows and acknowledges that the Subscriber is relying on such representations, warranties and covenants in connection with the transactions contemplated herein:
| (a) | The Company has: (i) been duly incorporated and is validly existing and in good standing under the Laws of the jurisdiction in which it was incorporated; (ii) all requisite corporate power and capacity to carry on the business of the Company as now conducted and to own, lease and operate its properties and assets; and (iii) all requisite corporate power and authority to execute and deliver this Agreement, documents and instruments to be executed and delivered by it pursuant to this Agreement, to perform its obligations hereunder and thereunder, to complete the transactions contemplated herein and therein, and to issue and sell the Share. No proceedings have been taken by any person, voluntary or otherwise, requiring or authorizing its dissolution or winding up. |
| (b) | The Company is not in breach or default of, and the execution and delivery by the Company of this Agreement, documents and instruments to be executed and delivered by it pursuant to this Agreement, the performance by the Company of its obligations hereunder and thereunder, and the completion of the transactions contemplated herein and therein will not (whether after the passage of time or notice or both), constitute a violation or breach of or default under, or conflict with, or cause the acceleration of any provision of: (i) the governing documents of the Company or the resolutions of the Board, or any committee thereof, or the stockholders thereof; or (ii) any Law applicable to the Company. |
| (c) | All necessary corporate action has been taken or will have been taken prior to the Time of Closing by the Company so as to: (i) authorize the execution, delivery and performance of this Agreement; and (ii) validly issue and sell the Share. |
| (d) | The execution and delivery of this Agreement and the performance by the Company of its obligations hereunder and the transactions contemplated hereby have been duly authorized by all necessary corporate action of the Company and upon the execution and delivery of this Agreement shall constitute a valid and binding obligation of the Company, enforceable against the Company in accordance with their respective terms, provided that enforcement thereof may be limited by: (i) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar Laws from time to time in effect affecting creditors’ rights and remedies generally; and (ii) general principles of equity (regardless of whether such principles are considered in a proceeding in equity or at Law). |
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| (e) | At the Time of Closing, all consents, approvals, permits, authorizations or filings as may be required by the Company under applicable Securities Laws necessary for the execution and delivery of this Agreement and the issuance and sale of the Share and the consummation of the transactions contemplated hereby shall have been made or obtained, as applicable, other than filings required to be submitted within the applicable time frame pursuant to applicable corporate Laws and Securities Laws. |
| (f) | The Share has been duly and validly authorized for issuance and when issued and delivered by the Company pursuant to this Agreement, the Share will be validly issued, fully paid and nonassessable. |
Article 4
ACKNOWLEDGEMENTS, REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SUBSCRIBER
| 4.1 | Acknowledgements, Representations, Warranties and Covenants of the Subscriber |
The Subscriber hereby acknowledges, represents and warrants to, and covenants with, the Company as follows and acknowledges that the Company is relying on such acknowledgements, representations, warranties and covenants in connection with the transactions contemplated herein:
| (a) | The Subscriber confirms that it: |
| (i) | has such knowledge in financial and business affairs as to be capable of evaluating the merits and risks of its investment in the Share, including the potential loss of its entire investment; |
| (ii) | is aware of the characteristics of the Share and understands the risks relating to an investment therein; and |
| (iii) | is able to bear the economic risk of loss of its investment in the Share. |
| (b) | The Subscriber further confirms that it has had an opportunity to receive, review and understand all information related to the Company requested by it and to ask questions of and receive answers from the Company regarding the Company, its business and the terms and conditions of the offering of the Share, and has conducted and completed its own independent due diligence. Such Subscriber acknowledges that copies of the Curaleaf Holdings’ filings with the Canadian securities regulatory authorities are publicly available on SEDAR+, including those relevant to the Company, and that the Subscriber has had the opportunity to review such filings. Based on the information such Subscriber has deemed appropriate, it has independently made its own analysis and decision to enter into this Agreement. Such Subscriber is relying exclusively on its own investment analysis and due diligence (including professional advice it deems appropriate) with respect to the execution, delivery and performance of this Agreement, the Share and the business, condition (financial and otherwise), management, operations, properties and prospects of the Company, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Neither such inquiries nor any other due diligence investigation conducted by such Subscriber shall modify, limit or otherwise affect the Subscriber’s right to rely on the Company’s representations and warranties contained in this Agreement. |
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| (c) | The Subscriber acknowledges that it has been provided with drafts of the rights and privileges of the Share, as set forth in the Restated Certificate, and drafts of the Protection Agreement and Shareholders Agreement, and that it understands such terms, including the fact that (i) the Share will be subject to put and call rights in favor of the Company and exercisable at the discretion of the Company in certain circumstances, and (ii) Curaleaf Holdings has certain rights to convert its shares of Class B Common Stock into shares of Class C Common Stock, in each case in accordance with the terms of the Shareholders Agreement. |
| (d) | The Subscriber is resident of, or if the Subscriber is not an individual, has its head office in the jurisdiction set out in the preamble of this Agreement and intends that the Securities Laws of that jurisdiction do and shall govern this subscription by the Subscriber, and is not aware of any reason why the Laws of such jurisdiction would not govern such subscription. Such address was not created and is not used solely for the purpose of acquiring the Share and the Subscriber was solicited to purchase in only such jurisdiction. |
| (e) | If the Subscriber is not a United States Person (as defined by Section 7701(a)(30) of the Code), the Subscriber hereby represents that it has satisfied itself as to the full observance of the Laws of its jurisdiction in connection with any invitation to subscribe for the Share or any use of this Agreement, including (i) the legal requirements within its jurisdiction for the purchase of the Share, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental or other consents that may need to be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale, or transfer of the Share. The Subscriber’s subscription and payment for and continued beneficial ownership of the Share will not violate any applicable securities or other Laws of the Subscriber’s jurisdiction. |
| (f) | The Subscriber is an “accredited investor”, as such term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act, the Subscriber has properly completed, executed and delivered to the Company this Agreement and Exhibit D (the “Accredited Investor Status Certificate”), as applicable, and the acknowledgements, representations, warranties covenants and information contained herein and therein are true and correct as of the date hereof and will be true and correct as of the Time of Closing. The Subscriber was not created, and is not being used, solely to purchase and hold securities in reliance on an exemption from prospectus requirements under applicable Securities Laws. The Subscriber covenants to provide prompt written notice to the Company in the event it ceases to be an accredited investor at any time in the future during which the Subscriber continues to hold the Share or any other securities of the Company. The Subscriber is purchasing the Share for investment purposes only and not with a view to resale or distribution of the Share, and not in a transaction or series of transactions involving a purchase and sale or a repurchase and resale in the course of or incidental to a distribution that would be in violation of the Securities Act. The Subscriber has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the Securities Act without prejudice, however, to such Subscriber’s right at all times to sell or otherwise dispose of all or any part of the Share in compliance with applicable Securities Laws and the Shareholders Agreement. |
| (g) | The Subscriber is aware that the Share has not been and will not be registered under the Securities Act or the Securities Laws of any state and that the Share may not be offered or sold, directly or indirectly, in the United States without registration under the Securities Act and applicable state Securities Laws or compliance with the requirements of an exemption from registration therefrom and it acknowledges that the Company has no present intention of filing a registration statement under the Securities Act or applicable state Securities Laws in respect of such securities. |
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| (h) | The Subscriber understands that the Company is uncertificated and therefore no certificate will be issued representing the Share or any securities issued in respect of or exchange for the Share. |
| (i) | The Subscriber confirms that the current structure of this transaction and all transactions and activities contemplated hereunder is not a scheme to avoid the registration requirements of the Securities Act. |
| (j) | The Subscriber is not purchasing the Share as the result of any “directed selling efforts” (as defined in Rule 902(c) of Regulation S of the Securities Act). |
| (k) | The execution and delivery of this Agreement, the performance and compliance with the terms hereof, the subscription for the Share and the completion of the transactions described herein by the Subscriber will not result in any material breach of, or be in conflict with or constitute a material default under, or create a state of facts which, after notice or lapse of time, or both, would constitute a material default under any term or provision of the constating documents, bylaws or resolutions of the Subscriber, if applicable, the Securities Laws or any other Laws applicable to the Subscriber, any agreement to which the Subscriber is a party, or any judgment, decree, order, statute, rule or regulation applicable to the Subscriber. |
| (l) | The Subscriber is subscribing for the Share as principal for its own account and not for the benefit of any other Person (within the meaning of applicable Securities Laws). |
| (m) | The Subscriber is duly incorporated and is validly subsisting under the Laws of its jurisdiction of incorporation and has all requisite legal and corporate power and authority to execute and deliver this Agreement, to subscribe for the Share as contemplated herein and to carry out and perform its covenants and obligations under the terms of this Agreement and has obtained all necessary approvals in respect thereof, and the individual signing this Agreement has been duly authorized to execute and deliver this Agreement. |
| (n) | The Subscriber will execute and deliver within the applicable time periods all documentation as may be required by applicable Securities Laws to permit the purchase of the Share on the terms set forth herein and the Subscriber will execute, deliver and file or assist the Company in filing such reports, undertakings and other documents with respect to the issue of the Share as may be required by applicable Securities Laws or any securities regulatory authority, stock exchange or other regulatory authority. |
| (o) | The Subscriber has been advised to consult its own legal advisors with respect to the execution, delivery and performance by it of this Agreement and the transactions contemplated herein, including trading in the Share with respect to the hold periods imposed by the Securities Laws and other applicable Laws of the jurisdiction in which the Subscriber resides, and acknowledges that no representation has been made by the Company respecting the applicable hold periods imposed by the Securities Laws or other resale restrictions applicable to such securities which restrict the ability of the Subscriber (or others for whom it is contracting hereunder) to resell such securities, that the Subscriber (or others for whom it is contracting hereunder) is solely responsible to find out what these restrictions are, that the Subscriber is solely responsible (and the Company is not in any way responsible) for compliance with applicable resale restrictions and that the Subscriber (or others for whom it is contracting hereunder) is aware that it may not resell such securities except in accordance with limited exemptions under the Securities Laws and other applicable securities Laws. |
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| (p) | The Subscriber has not received or been provided with a prospectus, offering memorandum or any material that in the aggregate may be reasonably deemed to constitute an offering memorandum (within the meaning of the Securities Laws) or any sales or advertising literature in connection with the Offering or any document purporting to describe the business and affairs of the Company, and the Subscriber’s decision to subscribe for the Share was not based upon, and the Subscriber has not relied upon, any oral or written representations as to facts made by or on behalf of the Company, or any employee, agent or Affiliate thereof or any other person associated therewith, except as set forth herein. The Subscriber’s decision to subscribe for the Share was based solely upon this Agreement and any information about the Company which is publicly available (any such information having been obtained by the Subscriber without independent investigation or verification by the Company), and not upon any verbal or written representation as to any fact or otherwise made by or on behalf of the Company or any of its directors, officers, employees, agents or representatives. |
| (q) | Neither the Company, nor any of its directors, employees, officers, Affiliates or agents has made any written or oral representations: |
| (i) | that any Person will resell or repurchase the Share; |
| (ii) | that any Person will refund all or any part of the Subscription Amount; or |
| (iii) | as to the future price or value of Shares. |
| (r) | The subscription for the Share has not been made through or as a result of, and the distribution of the Share is not being accompanied by any general or public solicitation or general advertisement, or publicly disseminated advertisements or sales literature, including without limitation in printed public media, radio, television or telecommunications or similar media, including electronic display, or any seminar or meeting to which the Subscriber was invited by any of the foregoing means of communications. |
| (s) | The funds representing the Subscription Amount which will be advanced by the Subscriber to the Company hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) (the “PCMLTFA”), the United Kingdom’s Proceeds of Crime Act 2002 (the “POCA”) or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (the “PATRIOT Act”), and the Subscriber acknowledges that the Company may in the future be required by applicable Law to disclose the Subscriber’s name and other information relating to this Agreement and the Subscriber’s subscription hereunder, on a confidential basis, pursuant to the PCMLTFA, POCA or the PATRIOT Act. To the best of its knowledge (a) none of the subscription funds to be provided by the Subscriber (i) have been or will be derived from or related to any activity that is deemed criminal under the Laws of Canada, the United States, or any other jurisdiction, or (ii) are being tendered on behalf of a Person or entity who has not been identified to the Subscriber, and (b) the Subscriber shall promptly notify the Company if the Subscriber discovers that any of such representations ceases to be true, and to provide the Company with appropriate information in connection therewith. |
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| (t) | The Subscriber is not a Person or entity identified in the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism, the United Nations Al- Qaida and Taliban Regulations, the Regulations Implementing the United Nations Resolution on the Democratic People’s Republic of Korea, the Regulations Implementing the United Nations Resolution on Iran, the United Nations Cote d’Ivoire Regulations, the United Nations Democratic Republic of the Congo Regulations, the United Nations Liberia Regulations, the United Nations Sudan Regulations, the Special Economic Measures (Zimbabwe) Regulations or the Special Economic Measures (Burma) Regulations, the Special Economic Measures (Ukraine) Regulations, the Special Economic Measures (Russia) Regulations, or the Freezing Assets of Corrupt Foreign Officials Act (collectively, the “Trade Sanctions”). The Subscriber acknowledges that the Company may in the future be required by Law to disclose the name and other information of the Subscriber related to the acquisition of the Share hereunder pursuant to the Trade Sanctions. |
| 4.2 | Acknowledgments and Covenants of the Subscriber |
The Subscriber hereby acknowledges to, and covenants with, the Company as follows and acknowledges that the Company is relying on such acknowledgements and covenants in connection with the transactions contemplated herein:
| (a) | It has had the opportunity to ask and have answered any and all questions which the Subscriber wished to have answered with respect to the subscription for the Share made hereunder. |
| (b) | The offer of the Share does not constitute a recommendation to purchase the Share or financial product advice and the Subscriber acknowledges that the Company has not had regard to the Subscriber’s particular objectives, financial situation or needs. |
| (c) | There are risks associated with the purchase of the Share and no securities commission, agency, governmental authority, regulatory body, stock exchange or similar regulatory authority has reviewed or passed on the merits of the Share nor have any such agencies or authorities made any recommendations or endorsement with respect to the Share. |
| (d) | The Subscriber understands that the Share is a “restricted security” under applicable Securities Laws and that, pursuant to these Laws, the Subscriber must hold the Share indefinitely unless it is registered with the Securities and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualification requirements is available. The Subscriber acknowledges that the Company has no obligation to register or qualify the Share. |
| (e) | The Subscriber’s ability to transfer the Share is limited by, among other things, applicable Securities Laws. |
| (f) | The Share purchased hereunder shall have imprinted on or attached to any certificate, instrument, or book entry issued in respect thereof, a legend setting out resale restrictions under applicable Securities Laws with one or all of the following legends (and with the necessary information inserted), and the Subscriber consents to the Company making a notation on its records in order to implement the restriction on transfer set forth and described herein: |
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| (i) | “THESE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE OF THE UNITED STATES OF AMERICA BUT HAVE BEEN OR WILL BE ISSUED IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND, ACCORDINGLY, MAY NOT BE TRANSFERRED UNLESS (I) SUCH SECURITIES HAVE BEEN REGISTERED FOR RESALE PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, (II) SUCH SECURITIES MAY BE SOLD PURSUANT TO RULE 144, (III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (IV) THE SECURITIES ARE TRANSFERRED WITHOUT CONSIDERATION TO AN AFFILIATE OF SUCH HOLDER OR A CUSTODIAL NOMINEE (WHICH FOR THE AVOIDANCE OF DOUBT SHALL REQUIRE NEITHER CONSENT NOR THE DELIVERY OF AN OPINION).” |
| (ii) | Any legend required by the Securities Laws of any state to the extent such Laws are applicable to the Share represented by the certificate, instrument, or book entry so legended. |
| (g) | The Company is a private company and does not have any of its securities listed on a stock exchange, and there is no assurance that its securities will ever become publicly listed. |
| (h) | There is no market for the Share and there is no assurance that a market will ever develop. |
| (i) | The Company is relying on an exemption from the requirement to provide the Subscriber with a prospectus under the Securities Laws and, as a consequence of acquiring the Share pursuant to such exemption: |
| (i) | certain protections, rights and remedies provided by the Securities Laws, including statutory rights of rescission, or damages and certain statutory remedies against an issuer, underwriters, auditors, directors and officers that are available to investors who acquire securities offered by a prospectus, will not be available to the Subscriber; |
| (ii) | the common law may not provide investors with an adequate remedy in the event that they suffer investment losses in connection with securities acquired in a private placement; |
| (iii) | the Subscriber may not receive information that would otherwise be required to be given under the Securities Laws; and |
| (iv) | the Company is relieved from certain obligations that would otherwise apply under the Securities Laws. |
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| (j) | The Share is being offered for sale only on a private placement basis offer, and the issuance, sale and delivery of the Share is conditional upon such sale being exempt from the prospectus filing or registration requirements and the requirement to deliver an offering memorandum in connection with the distribution of the Share under applicable Securities Laws or upon the issuance of such orders, consents or approvals as may be required to permit such sale without the requirement of filing a prospectus. |
| (k) | The Company may complete additional financings in the future in order to develop the business of the Company and fund its ongoing development, and such future financings may have a dilutive effect on current stockholders or securityholders of the Company, including the Subscriber. However, there is no assurance that any future financings will be available, on reasonable terms or at all, and if not so available, could have a Material Adverse Effect on the Company’s business, financial condition, performance or prospects. |
| (l) | The Subscriber is responsible for obtaining such legal and tax advice as it considers appropriate in connection with the execution, delivery and performance of this Agreement and the transactions contemplated under this Agreement. |
| (m) | This offer to subscribe is made for valuable consideration and may not be withdrawn, cancelled, terminated or revoked by the Subscriber without the consent of the Company. |
| (n) | There is no government or other insurance covering the Share. |
| (o) | Legal counsel retained by Curaleaf Holdings is acting as counsel to the Company and Curaleaf Holdings, and not as counsel to the Subscriber. |
| (p) | The Subscriber acknowledges that this Agreement and the schedules hereto require the Subscriber to provide certain personal information to the Company. Such information is being collected by the Company for the purposes of completing the Offering, which includes, without limitation determining the Subscriber’s eligibility to purchase the Share under the Securities Laws and other applicable Laws. The Subscriber’s personal information may be disclosed by the Company to: (i) stock exchanges or securities regulatory authorities, if applicable; (ii) certain Cannabis Regulatory Bodies with oversight over the Company and its Subsidiaries; and (iii) any of the other parties involved in the Offering, including legal counsel to the Company and may be included in record books in connection with the Offering. By executing this Agreement, the Subscriber is deemed to be consenting to the foregoing collection, use and disclosure of the Subscriber’s personal information. The Subscriber also consents to the filing of copies or originals of any of the Subscriber’s documents described herein as may be required to be filed with any stock exchange or securities regulatory authority in connection with the transactions contemplated hereby. |
| 4.3 | Industry Specific Acknowledgements and Risks of the Subscriber |
The Subscriber acknowledges and agrees that the Company is and will continue to be subject to, among other things, the following risks and uncertainties:
| (a) | Nature of the business model. Since the cultivation, manufacturing, processing, possession, transportation, distribution, and sale of cannabis for medical, adult-use (i.e., recreational) or otherwise, that is not related to research sanctioned by the United States federal government, is prohibited under U.S. Federal Cannabis Laws, it is possible that the Company may be forced to cease certain of the Company’s proposed activities. The United States federal government, through, among others, the Department of Justice (“DOJ”), its sub-agency the Drug Enforcement Agency (“DEA”), and the Internal Revenue Service (“IRS”), have the right to actively investigate, audit and shutdown cannabis growing facilities, processors and retailers. The United States federal government may also attempt to seize Company or shareholder property. Any action taken by the DOJ, the DEA and/or the IRS to impede, seize or shutdown the Company’s future operations will have an adverse effect on the Company’s business, operating results and financial condition. |
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| (b) | The majority of the Company’s planned business activities, while believed to be compliant with Cannabis Codes, are prohibited under U.S. Federal Cannabis Laws. The Subscriber is cautioned that in the United States, medical and adult-use cannabis industry operations are largely regulated at the state and local levels. Although certain states and territories of the United States authorize medical and/or adult-use cannabis cultivation, manufacturing, processing, possession, transportation, distribution, and sale by operating entities licensed or registered under Cannabis Codes, under U.S. Federal Cannabis Laws, the cultivation, manufacturing, processing, possession, transportation, distribution, and sale of cannabis, for any purpose other than DEA- sanctioned research, and any related drug paraphernalia, is prohibited, and constitute criminal acts under U.S. Federal Cannabis Laws, including the CSA. The Subscriber’s contribution to and involvement in such activities may result in federal civil and/or criminal prosecution, incarceration, penalty and/or forfeiture of his, her or its entire investment. |
Violations of any U.S. Federal Cannabis Laws could result in significant fines, penalties, administrative sanctions, convictions or settlements arising from civil proceedings conducted by either the federal government or private citizens, or criminal charges, including but not limited to disgorgement of profits, cessation of business activities or divestiture. This could have a Material Adverse Effect on the Company, including the Company’s reputation and ability to conduct business, the Company’s holding (directly or indirectly) of State and/or Local Cannabis Licenses, the Company’s financial position, operating results, profitability or liquidity or the market price of the Share. In addition, it is difficult to estimate the time or resources that would be needed for the investigation of any such matters or its final resolution because, in part, the time and resources that may be needed are dependent on the nature and extent of any information requested by the applicable authorities involved, and such time or resources could be substantial.
In addition, since the cultivation, manufacturing, processing, possession, transportation, distribution, and sale of cannabis and any related drug paraphernalia is prohibited under U.S. Federal Cannabis Laws, the Company may be deemed to be aiding-and-abetting criminal activities through the contracts the Company has entered into and the products that the Company distributes. The Company cultivates, manufactures, processes, possesses, transports, distributes, and sells cannabis products through operating facilities and dispensaries, and otherwise, leases intellectual property and/or real property in a number of states. As a result, law enforcement authorities, in their attempt to regulate the illicit distribution of cannabis and any related drug paraphernalia, may seek to bring an action or actions against the Company, including, but not limited to, aiding and abetting another’s criminal activities. The federal aiding and abetting statute provides that anyone who “commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” As a result of such an action, the Company may be forced to cease certain operations and the Subscriber could lose its entire investment. Such an action would have a Material Adverse Effect on the Company’s business and operations.
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Cannabis Codes are relatively new and constantly evolving, so there are uncertainties as to how the applicable Cannabis Regulatory Bodies will interpret and administer applicable regulatory requirements. Any determination that the Company fails to comply with Cannabis Codes would require the Company either to significantly change or terminate lines of business, or the business as a whole, which would have a Material Adverse Effect on the Company’s business.
| (c) | Regulatory risks are inherent to the Company. The activities of the Company are subject to regulation by Cannabis Regulatory Bodies. The Company’s business objectives are contingent upon, in part, compliance with regulatory requirements enacted by these Cannabis Regulatory Bodies and obtaining all regulatory approvals, where necessary, in each jurisdiction in which the Company proposes to operate. The Company cannot predict the time required to secure all appropriate regulatory approvals, or the extent of testing and documentation that may be required by Cannabis Regulatory Bodies. Any delays in obtaining, or failure to obtain regulatory approvals would significantly delay the development of markets and products and could have a Material Adverse Effect. |
No assurance can be given that new rules and regulations will not be enacted or that existing rules and regulations will not be applied in a manner which could limit or curtail the Company’s ability to cultivate, manufacture, process, possess, transport, distribute, and sell cannabis. Amendments to current Laws governing the cultivation, manufacturing, or distribution of cannabis, or more stringent implementation thereof could have a Material Adverse Effect on the Company.
Moreover, the Proposed Transaction requires approval from Cannabis Regulatory Bodies in most of the jurisdictions in which the Company operates. There is no guaranty that such approvals will be obtained in a timely manner or at all, or that the conditions precedent to such approvals will be on terms satisfactory to the Company. A substantial delay in obtaining satisfactory approvals and consents from the applicable Cannabis Regulatory Bodies could result in the Proposed Transaction not being completed. Moreover, certain costs relating to the Proposed Transaction and the subscription contemplated herein, such as legal, accounting and advisory fees, must be paid by the Company even if the Proposed Transaction is not completed.
| (d) | Regulatory scrutiny of the Company’s industry may negatively impact its ability to raise additional capital. The Company’s business activities are expected to rely on newly established and developing Laws, including in a number of states. These Laws are rapidly evolving and subject to change with minimal notice. Regulatory changes may adversely affect the Company’s profitability or cause it to cease operations entirely. The cannabis industry may come under the scrutiny or further scrutiny of the Food and Drug Administration (the “FDA”), the Alcohol and Tobacco Tax and Trade Bureau; the Bureau of Alcohol, Tobacco, Firearms, and Explosives; Securities and Exchange Commission; DOJ; the Financial Industry Regulatory Advisory or other federal, state or other applicable state or non-governmental regulatory authorities or self- regulatory organizations that supervise or regulate the cultivation, manufacturing, processing, possession, transportation, distribution, and sale of cannabis for medical or adult-use purposes in the United States. It is impossible to determine the extent of the impact of any new Laws, regulations or initiatives that may be proposed, or whether any proposals will become Law. The regulatory uncertainty surrounding the Company’s industry may adversely affect the business and operations of the Company, including without limitation, the costs to remain compliant with applicable Laws and the impairment of the Company’s business or the ability to raise additional capital, which could reduce, delay or eliminate any return on investment in the Company. |
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| (e) | The Company may have difficulty accessing the service of banks and processing credit card payments in the United States, which may make it difficult for the Company to operate. In February 2014, the Financial Crimes Enforcement Network (“FinCEN”) bureau of the Treasury Department issued guidance (which is not Law) with respect to financial institutions providing banking services to cannabis businesses, including burdensome due diligence expectations and reporting requirements. This guidance does not provide any safe harbors or legal defenses from examination or regulatory or criminal enforcement actions by the DOJ, FinCEN or other federal regulators. Thus, most banks and other financial institutions are not comfortable providing banking services to cannabis-related businesses, or relying on this guidance, which can be amended or revoked at any time. In addition to the foregoing, banks may refuse to process debit card payments and credit card companies generally refuse to process credit card payments for cannabis-related businesses. As a result, the Company may have limited or no access to banking or other financial services in the United States and may have to operate the Company’s business on an all-cash basis. The inability or limitation in the Company’s ability to open or maintain bank accounts, obtain other banking services and/or accept credit card and debit card payments in the United States may make it difficult for the Company to operate and conduct business as planned. |
| (f) | Federal trademark and patent protection may not be available for the intellectual property of the Company due to the current classification of marijuana as a Schedule I controlled substance. As long as marijuana remains illegal under U.S. Federal Cannabis Laws as a Schedule I controlled substance pursuant to the CSA, the benefit of certain federal Laws and protections which may be available to most businesses, such as federal trademark and patent protection regarding the intellectual property of a business, may not be available to the Company. As a result, the Company’s intellectual property may never be adequately or sufficiently protected against the use or misappropriation by third parties. In addition, since the regulatory framework of the cannabis industry is in a constant state of flux, the Company can provide no assurance that it will ever obtain any protection of its intellectual property, whether on a federal, state or local level. |
| (g) | The Company’s contracts may not be legally enforceable in the United States. Because certain of the Company’s contracts involve cannabis and other activities that are not legal under U.S. Federal Cannabis Laws and in certain state jurisdictions, the Company may face difficulties enforcing such contracts in federal and certain state courts. |
| (h) | There is uncertainty surrounding the policies of the United States federal government. As a result of the conflict of Laws that currently exists between U.S. Federal Cannabis Laws and the Cannabis Codes, investments in cannabis business in the United States are subject to inconsistent Laws. The response to this inconsistency was addressed in August 2013 when then Deputy Attorney General, James Cole, authored the Cole Memorandum (the “Memorandum”). The Memorandum was addressed to all U.S. Attorneys acknowledging that, notwithstanding the designation of cannabis as a controlled substance at the federal level in the United States, several U.S. states enacted Cannabis Codes for medical and adult-use purposes. The Memorandum outlined certain priorities for the DOJ relating to the prosecution of cannabis offenses. In particular, the Memorandum noted that in jurisdictions that enacted Cannabis Codes and that have also implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale and possession of cannabis, conduct in compliance with those Cannabis Codes is less likely to be a priority at the federal level. In light of limited investigative and prosecutorial resources, the Memorandum concluded that the DOJ should be focused on addressing only the most significant threats related to cannabis. Cannabis Codes had been enacted were not characterized as a high priority. |
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On January 4, 2018, then U.S. Attorney General Jeff Sessions issued a memorandum to U.S. Attorneys which rescinded the Memorandum. With the Memorandum rescinded, U.S. federal prosecutors can exercise their discretion, without regard to the priorities enumerated in the Memorandum, in determining whether to prosecute cannabis-related operations that are compliant with Cannabis Codes but that violate U.S. Federal Cannabis Laws.
On March 11, 2021, Merrick Garland was appointed as U.S. Attorney General. At his confirmation hearing, he said, “It does not seem to me a useful use of limited resources that we have, to be pursuing prosecutions in states that have legalized and that are regulating the use of marijuana, either medically or otherwise”. He has not yet reissued the Cole Memorandum, however, or issued substitute guidance. In the 2023 Consolidated Appropriations Act (the “Act”), Congress included the Rohrabacher-Farr amendment which prohibits the Department of Justice from spending funds authorized under the Act to interfere with the implementation of state Laws that authorize the use, distribution, possession, or cultivation of medical cannabis until September 30, 2023.
Multiple legislative and executive administrative reforms related to cannabis and cannabis-related banking and taxation are currently being considered by the federal government in the United States. Examples include President Biden’s mandate for administrative review of rescheduling cannabis to a lower schedule on the CSA; the States Reform Act; the Cannabis Administration and Opportunity Act; the Marijuana Opportunity, Reinvestment and Expungement Act; the Secure and Fair Enforcement (SAFE) Banking Act; and the Capital Lending and Investment for Marijuana Businesses (CLIMB) Act; H.R. 9702 to amend the Internal Revenue Code of 1986 to allow deductions and credits relating to expenditures in connection with marijuana sales conducted in compliance with state Law. There can be no assurance that the administrative review of cannabis will result in rescheduling of cannabis under the CSA, or that any of the above pieces of legislation will be reintroduced in the 118th Congress or ultimately become Law in the United States.
| (i) | Due to the classification of marijuana as a Schedule I controlled substance under the CSA, banks and other financial institutions which service the cannabis industry are at risk of violating certain financial Laws, including anti-money laundering statutes. Because the cultivation, manufacturing, processing, possession, transportation, distribution, and sale of cannabis is prohibited under the CSA, banks and other financial institutions providing services to cannabis-related businesses risk violation of federal anti-money laundering statutes (18 U.S.C. §§ 1956 and 1957), the unlicensed money-remitter statute (18 U.S.C. § 1960) and the Bank Secrecy Act. These statutes can impose criminal liability for engaging in certain financial and monetary transactions with the proceeds of a “specified unlawful activity” such as distributing controlled substances which are illegal under federal Law, including cannabis, and for failing to identify or report financial transactions that involve the proceeds of cannabis- related violations of the CSA. The Company may also be exposed to the foregoing risks. In the event that any of the Company’s investments, or any proceeds thereof, any dividends or distributions therefrom, or any profits or revenues accruing from such investments in the United States were found to be in violation of money laundering legislation or otherwise, such transactions may be viewed as proceeds of crime under one or more of the statutes noted above or any other applicable legislation. |
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| (j) | Third-party service providers to the Company may withdraw or suspend their service under threat of prosecution. Since under U.S. Federal Cannabis Laws the cultivation, manufacturing, processing, possession, transportation, distribution, and sale of cannabis and any related drug paraphernalia is prohibited, and any such acts are criminal acts under U.S. Federal Cannabis Laws, companies that provide goods and/or services to companies engaged in cannabis-related activities may, under threat of federal civil and/or criminal prosecution, suspend or withdraw their services. Any suspension of service and inability to procure goods or services from an alternative source, even on a temporary basis, that causes interruptions in the Company’s operations could have a Material Adverse Effect on the Company’s business. |
| (k) | FDA regulation of medical-use cannabis and the possible registration of facilities where cannabis is cultivated, manufactured, and/or distributed could negatively affect the medical-use cannabis industry, which would directly affect the Company’s financial condition. Should the federal government legalize cannabis for medical or adult-use use, it is possible that the FDA, would seek to regulate it under the Federal Food, Drug and Cosmetic Act. Additionally, the FDA may issue rules and regulations including, but not limited to, good manufacturing practice, related to the cultivation, manufacturing, processing, possession, transportation, distribution, advertising and sale of cannabis. Clinical trials may be needed to demonstrate efficacy and safety to support medical claims. It is also possible that the FDA would require that facilities where cannabis is cultivated, manufactured, processed, possessed, transported, distributed, and/or sold to register with the FDA and comply with certain federally prescribed regulations. In the event that some or all of these regulations are imposed, it is unknown what the impact would be on the cannabis industry, including what costs, requirements and possible prohibitions may be enforced. If the Company is unable to comply with the regulations or registration as prescribed by the FDA it may have a Material Adverse Effect on the Company’s business, operating results and financial condition. |
| (l) | The Company is likely subject to Section 280E of the Code because of its business activities and the resulting disallowance of tax deductions could cause it to incur more than anticipated U.S. federal income tax. Under Section 280E of the Code (“Section 280E”), “no deduction or credit shall be allowed for any amount paid or incurred during the taxable year in carrying on any trade or business if such trade or business (or the activities which comprise such trade or business) consists of trafficking in controlled substances (within the meaning of schedules I and II of the CSA) which is prohibited by Federal law or the law of any State in which such trade or business is conducted.” Cannabis is classified under schedule I of the CSA. Consequently, this provision has been applied by the IRS to cannabis operations, prohibiting them from deducting ordinary business expenses directly associated with the sale of cannabis. Section 280E therefore has a significant impact on the retail side of cannabis operations, but a lesser impact on cultivation and manufacturing operations. A result of Section 280E is that the effective tax rate on cannabis businesses may be extraordinarily high, and an otherwise profitable business may, in fact, operate at a loss, after taking into account its income tax expenses. |
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| (m) | The Company’s operations in the United States may become the subject of heightened scrutiny by regulators and other authorities. The Company may be subject to significant direct and indirect interaction with public officials as a result of such heightened scrutiny. There can be no assurance that this heightened scrutiny will not in turn lead to the imposition of certain restrictions on the Company’s ability to operate or invest in the United States or any other jurisdiction. Government policy changes or public opinion may also result in a significant influence over the regulation of the cannabis industry. A negative shift in the public’s perception of medical-use and/or adult-use cannabis in the United States or any other applicable jurisdiction could affect future legislation or regulation. Among other things, such a shift could cause state jurisdictions to abandon initiatives or proposals to regulate medical and/or adult-use cannabis, thereby limiting the number of new state jurisdictions into which the Company could expand. Any inability to fully implement the Company’s expansion strategy may have a Material Adverse Effect. |
| (n) | Subscriber’s investment in the Company may itself be illegal under federal Law; changes in federal enforcement affecting the cannabis industry may cause adverse effects on the Company’s business. Overall, an investor’s contribution to and involvement in the Company’s activities may result in federal civil and/or criminal prosecution, including forfeiture of his, her or its entire investment. |
The Company is materially complying with state-regulated cannabis programs, regardless of its legal status under federal Law, and Subscriber’s investment has been designed to be compliant with all applicable state Laws and regulations to which the Company are subject; however, under federal Law, such investments may be considered illegal under the CSA (particularly 21 U.S.C. § 854) or other indirect criminal liability theories such as aiding and abetting or conspiracy. Additionally, financial transactions involving proceeds generated by cannabis-related conduct can form the basis for prosecution under the federal money laundering statutes (18 U.S.C. § 1956), the unlicensed money transmitter statute and the U.S. Bank Secrecy Act. If the federal government were to reverse its long-standing hands-off approach to the state legal cannabis markets and start more broadly enforcing federal Laws regarding cannabis, investors or the Company itself could also face criminal liability; in the event that investors or the Company faces enforcement it would likely be unable to execute its business plan, and its business and financial results would be adversely affected.
| (o) | The Company, its officers, investors or other stakeholders may be required to disclose personal information to government or regulatory entities; failing to do so could negatively impact the Company’s business, financial conditions or results of operations. The Company operates U.S. state-licensed cannabis businesses. Acquiring even a minimal or indirect interest in a U.S. state-licensed cannabis business can trigger requirements to disclose officers’, investors’ and other stakeholders’ personal information. While these requirements vary by jurisdiction, some require interest holders to apply for regulatory approval and to provide tax returns, compensation agreements, fingerprints for background checks, criminal history records and other documents and information. Some states require disclosures of directors, officers and holders of more than a specified percentage of equity of the applicant. While some states include exceptions for investments in publicly traded entities, not all states do so, and some such exceptions are confined to companies traded on a U.S. securities exchange. If these regulations apply to the Company, investors, officers and other stakeholders are required to comply with such regulations or face the possibility that any relevant cannabis license indirectly held by the Company could be revoked or cancelled by the state licensing authority. |
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| 4.4 | Reliance on Representations, Warranties, Covenants and Acknowledgements of the Subscriber |
The Subscriber acknowledges and agrees that the representations, warranties, covenants and acknowledgements made by the Subscriber in this Agreement are made with the intention that they may be relied upon by the Company and its legal counsel in determining the Subscriber’s eligibility to purchase the Share. The Subscriber agrees to promptly provide, upon request, any additional information that the Company determines is necessary for determining or substantiating the Subscriber’s eligibility to participate in this Offering.
The Subscriber further agrees that by accepting the Share, the Subscriber shall be representing and warranting that such representations, warranties, covenants and acknowledgements are true as at the Time of Closing with the same force and effect as if they had been made by the Subscriber at the Time of Closing.
Article 5
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
| 5.1 | Survival of Representations, Warranties and Covenants of the Company |
The representations, warranties and covenants of the Company contained in this Agreement shall survive the Closing and continue in full force and effect for the benefit of the Subscriber for a period of twelve months following Closing, in each case notwithstanding such Closing or any investigation made by or on behalf of the Subscriber with respect thereto.
| 5.2 | Survival of Representations, Warranties and Covenants of the Subscriber |
The representations, warranties and covenants of the Subscriber contained in this Agreement shall survive the Closing and continue in full force and effect for the benefit of the Company for a period of twelve months following the Closing, in each case notwithstanding such Closing or any investigation made by or on behalf of the Company with respect thereto and notwithstanding any subsequent disposition by the Subscriber of the Share.
Article 6
CONDITIONS PRECEDENT
| 6.1 | Mutual Conditions Precedent for Closing |
The obligations of each of the Company and the Subscriber to complete the transactions contemplated herein are subject to the fulfilment prior to or at the Time of Closing of each of the following conditions:
| (a) | the Noteholder Approval shall have been obtained; |
| (b) | Curaleaf Holdings shall have obtained conditional approval from the TSX for the listing of the Subordinate Voting Shares on the TSX; |
| (c) | the Restated Certificate shall have been adopted and filed substantially in the form attached as Exhibit A hereto, and the bylaws of the Company shall have been amended and restated in substantially the form attached hereto as Exhibit E; |
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| (d) | no action shall have been taken by any Government Authority prohibiting or making illegal the execution and delivery of this Agreement or the subscription of the Share by the Subscriber; and |
| (e) | no action, suit or proceeding shall have been instituted and be continuing by any Person to restrain, modify or prevent the consummation of the transactions contemplated by this Agreement. |
| 6.2 | Company’s Conditions Precedent for Closing |
The obligations of the Company to complete the transactions contemplated herein are subject to the fulfilment prior to or at the Time of Closing of each of the following conditions:
| (a) | the representations and warranties made by the Subscriber under this Agreement shall be true in all material respects as of the Time of Closing (or, if the Closing Date is the same as the Agreement Date, shall be true in all respects as of the Time of Closing), other than those representations and warranties which are qualified by materiality, which shall be true in all respects as of the Time of Closing, provided that those representations and warranties which are expressly made only as of an earlier fixed date will be assessed only as of such earlier date; |
| (b) | the issue and sale and delivery of the Share being exempt from the requirement to file a prospectus, registration statement or similar document and the requirement to deliver an offering memorandum or similar document under applicable Securities Laws relating to the sale of the Share; |
| (c) | the Subscriber shall have complied in all material respects with all covenants and agreements herein agreed to be performed or caused to be performed by it; |
| (d) | the Subscriber shall have properly completed, signed and delivered to the Company the Accredited Investor Status Certificate; and |
| (e) | the Subscriber shall have executed and delivered each of the Transaction Documents to which it is a party. |
In case any of the conditions provided in Section 6.1 or this Section 6.2 cannot be fulfilled on or before the Outside Date to the satisfaction of the Company, acting reasonably, the Company may terminate this Agreement by notice to the Subscriber and in such event the Subscriber and the Company shall be released from all obligations hereunder; provided, however, that the Company may waive compliance with any condition, in whole or in part, without prejudice to its rights of termination in the event of the non-fulfillment of any other condition or conditions, and that the Closing of the transactions contemplated by this Agreement shall be deemed to be a waiver of any unfulfilled conditions.
| 6.3 | Subscriber’s Conditions Precedent for Closing |
All obligations of the Subscriber to purchase the Share under this Agreement are subject to the fulfillment prior to or at the Time of Closing of each of the following conditions:
| (a) | the representations and warranties made by the Company under this Agreement shall be true in all material respects as of the Time of Closing (or, if the Closing Date is the same as the Agreement Date, shall be true in all respects as of the Time of Closing), other than those representations and warranties which are qualified by materiality or reference to Material Adverse Effect, which shall be true in all respects as of the Time of Closing, provided that those representations and warranties which are expressly made only as of an earlier fixed date will be assessed only as of such earlier date; |
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| (b) | the Company shall have complied in all material respects with all covenants and agreements herein agreed to be performed or caused to be performed by it; and |
| (c) | the Company shall have executed and delivered each of the Transaction Documents to which it is a party. |
In case any of the conditions provided in Section 6.1 or this Section 6.3 cannot be fulfilled on or before the Outside Date to the satisfaction of the Subscriber, acting reasonably, the Subscriber may terminate this Agreement by notice to the Company and in such event the Company and the Subscriber shall be released from all obligations hereunder; provided, however, that the Subscriber may waive compliance with any condition, in whole or in part, without prejudice to its rights of termination in the event of the non-fulfillment of any other condition or conditions, and that the Closing of the transactions contemplated by this Agreement shall be deemed to be a waiver of any unfulfilled conditions.
Article 7
CLOSING
| 7.1 | Closing |
The Closing will take place at the Time of Closing on the Closing Date electronically via email or by such other means as may be agreed upon by the Parties.
| 7.2 | Company Closing Deliveries |
At or prior to the Closing, the Company shall deliver or cause to be delivered to the Subscriber the following Closing Documents, each in form and substance satisfactory to the Subscriber, acting reasonably:
| (a) | a certificate of compliance, of good standing or of a similar nature with respect to the Company issued by the Delaware Division of Corporations dated within five (5) Business Days prior to the Closing Date; |
| (b) | a written instrument evidencing that the Share has been recorded on the books and records of the Company in the name of the Subscriber; |
| (c) | an executed copy of the Shareholders Agreement; |
| (d) | an executed copy of the Protection Agreement; |
| (e) | a certificate of the Company signed on behalf of the Company, without personal liability, by an executive officer of the Company, addressed to the Subscriber and dated the Closing Date, certifying that (i) the representations and warranties of the Company set forth in this Agreement are true and correct in all material respects as at the Closing Date (except (A) to the extent that such representations and warranties are qualified by materiality or by reference to Material Adverse Effect, such representations and warranties shall be true and correct in all respects; and (B) to the extent that such representations and warranties expressly speak of an earlier date, in which event, such representations and warranties shall be assessed as of such earlier date) and (ii) the Company has in all material respects performed its obligations and complied with the terms and conditions of this Agreement required to be performed or complied with on or prior to the Closing Date; provided that the certificate described in this paragraph (e) shall not be required in the event that the Closing Date is the same as the Agreement Date; and |
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| (f) | such other instruments or documents, in registrable form or otherwise, as the Subscriber may reasonably require to complete the transactions contemplated by this Agreement. |
| 7.3 | Subscriber Closing Deliveries |
At or prior to Closing, the Subscriber shall deliver or cause to be delivered to the Company, the following:
| (a) | evidence acceptable to the Company of ownership of the Consideration Shares and that the ownership of the Consideration Shares has been or will be transferred to and registered in the name of the Company (or as the Company may direct) by the Subscriber, in accordance with Section 2.2; |
| (b) | a properly completed and signed Accredited Investor Status Certificate; |
| (c) | an executed copy of the Shareholders Agreement; |
| (d) | a certificate of the Subscriber, signed on behalf of the Subscriber, without personal liability, by an executive officer of the Subscriber, addressed to the Company and dated the Closing Date certifying that (i) all representations and warranties of the Subscriber set forth in this Agreement are true and correct in all material respects as at the Closing Date, with the same force and effect as if made by the Subscriber as at the Closing Date (except (A) to the extent that such representations and warranties are qualified by materiality such representations and warranties shall be true and correct in all respects; and (B) to the extent that such representations and warranties expressly speak of an earlier date, in which event, such representations and warranties will be assessed as of such earlier date) and (ii) the Subscriber has, in all material respects, performed all of its obligations and complied with the terms and conditions of this Agreement required to be performed or complied with on or prior to the Closing Date; provided that the certificate described in this paragraph (d) shall not be required in the event that the Closing Date is the same as the Agreement Date; and |
| (e) | such other instruments or documents, in registrable form or otherwise, as the Company may reasonably require to complete the transactions contemplated by this Agreement. |
Article 8
MISCELLANEOUS
| 8.1 | Further Assurances |
Each of the Parties hereto upon the request of the other Party hereto, whether before or after the Closing Date, shall do, execute, acknowledge, and deliver or cause to be done, executed, acknowledged and delivered all such further acts, deeds, documents, assignments, transfers, conveyances, powers of attorney and assurances as may reasonably be necessary or desirable to complete the transactions contemplated herein.
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| 8.2 | Notices |
Except as otherwise provided in this Agreement or required by Law, any notice, demand or other communication required or permitted to be given pursuant to this Agreement shall have been sufficiently given for all purposes if, upon the earlier of actual receipt, or: (i) personal delivery to the Party to be notified; (ii) when sent, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next Business Day; (iii) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one Business Day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next Business Day delivery, with written verification of receipt. All communications shall be sent to the respective Parties’ address specified below or to such other address as subsequently notified by written notice given in accordance with this Section 8.2.
| (i) | If to the Company, at: | ||
| Curaleaf, Inc. | |||
| 420 Lexington Avenue, Suite 2305 | |||
| New York, New York 10170-0052 | |||
| Attention: Matthew Darin, President | |||
| Email: [Redacted – Personal Information] | |||
| with a copy to (which shall not constitute notice): | |||
| Stikeman Elliott LLP | |||
| 1155 Rene-Levesque Boulevard West, 41st Floor | |||
| Montreal, Quebec | |||
| H3B 3V2 | |||
| Attention: Vanessa Coiteux and Julien Robitaille-Rodriguez | |||
| Email: vcoiteux@stikeman.com and jrobitaillerodriguez@stikeman.com | |||
| (ii) | If to the Subscriber, at: | |
| Lifebrook Investments Ltd. | ||
| [Redacted – Personal Information] | ||
| Attention: [Redacted – Personal Information] | ||
| Email: [Redacted – Personal Information] | ||
| with a copy to (which shall not constitute notice): | ||
| DLA Piper (Canada) LLP | ||
| 1 First Canadian Place, Suite 6000 | ||
| 100 King Street West | ||
| Toronto, ON | ||
| M5X 1E2 | ||
| Attention: Russel Drew | ||
| Email: russel.drew@dlapiper.com |
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| 8.3 | Time of the Essence |
Time shall be of the essence of this Agreement and every part hereof.
| 8.4 | Costs and Expenses |
Except as otherwise expressly provided in this Agreement, each Party will pay for its own costs and expenses incurred in connection with this Agreement and the transactions contemplated by it. The fees and expenses referred to in this Section are those which are incurred in connection with the negotiation, preparation, execution and performance of this Agreement, and the transactions contemplated by this Agreement, including the fees and expenses of legal counsel, investment advisers and accountants.
| 8.5 | Governing Law |
All issues and questions concerning the application, construction, validity, interpretation, and enforcement of this Agreement shall be governed by and construed in accordance with the internal Laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Delaware.
| 8.6 | Submission to Jurisdiction |
The Parties hereby agree that any suit, action, or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby, whether in contract, tort, or otherwise, shall be brought in the United States District Court for the District of Delaware or in the Court of Chancery of the State of Delaware (or, if such court lacks subject matter jurisdiction, in the Superior Court of the State of Delaware), so long as one of such courts shall have subject matter jurisdiction over such suit, action, or proceeding, and that any cause of action arising out of this Agreement shall be deemed to have arisen from a transaction of business in the State of Delaware. Each of the Parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action, or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action, or proceeding in any such court or that any such suit, action, or proceeding which is brought in any such court has been brought in an inconvenient form. Service of process, summons, notice, or other document by registered mail to the address set forth in Section 8.2 shall be effective service of process for any suit, action, or other proceeding brought in any such court.
| 8.7 | WAIVER OF JURY TRIAL |
AS A SPECIFICALLY BARGAINED INDUCEMENT FOR EACH OF THE PARTIES TO ENTER INTO THIS AGREEMENT (WITH EACH PARTY HAVING HAD OPPORTUNITY TO CONSULT COUNSEL), EACH PARTY HERETO EXPRESSLY AND IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR LEGAL PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN, AND ANY LAWSUIT OR LEGAL PROCEEDING RELATING TO OR ARISING IN ANY WAY TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN SHALL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
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| 8.8 | Entire Agreement |
This Agreement, the Shareholders Agreement, the Protection Agreement and those documents expressly referred to herein and therein (or attached thereto) and other documents of even date herewith embody the complete agreement and understanding among the Parties with respect to the transactions contemplated herein and cancels and supersedes any prior understandings, agreements, negotiations, and discussions between the Parties. There are no representations, warranties, terms, conditions, undertakings or collateral agreements or understandings, express or implied, between the Parties hereto other than those expressly set forth in this Agreement, the Shareholders Agreement or in any such agreement, certificate, affidavit, statutory declaration, or other document as aforesaid.
| 8.9 | Amendments |
This Agreement may only be amended, supplemented, or otherwise modified by written agreement signed by all of the Parties hereto.
| 8.10 | Severability |
If any term or provision of this Agreement is held to be invalid, illegal, or unenforceable under applicable Law in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
| 8.11 | Indemnity |
The Subscriber, or any authorized agent thereof, hereby agrees to indemnify and hold harmless the Company and its directors, officers, employees, agents, advisers, stockholders and Affiliates from and against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all fees, costs and expenses whatsoever reasonably incurred in investigating, preparing or defending against any claim, lawsuit, administrative proceeding or investigation whether commenced or threatened) arising out of or based upon any representation or warranty of the Subscriber contained herein or in any document furnished by the Subscriber to the Company in connection herewith being untrue in any material respect or any breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber herein or in any document furnished by the Subscriber to the Company in connection herewith.
| 8.12 | Assignment |
Neither this Agreement nor any of the rights or obligations under this Agreement are assignable or transferable by any Party without the prior written consent of the other Party hereto.
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| 8.13 | Inurement |
This Agreement becomes effective only when executed by all of the Parties. After that time, it is binding on and inures to the benefit of the Parties and their respective heirs, administrators, executors, legal representatives, successors and permitted assigns.
| 8.14 | Counterparts |
This Agreement may be executed (including by electronic means) in any number of counterparts, each of which (including any electronic transmission of an executed signature page), is deemed to be an original, and such counterparts together constitute one and the same Agreement.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF this Agreement has been executed by the Parties.
| CURALEAF, INC. | ||
| Per: | (signed) “Matthew Darin” | |
| Name: Matthew Darin | ||
| Title: President |
| LIFEBROOK INVESTMENTS LTD. | ||
| Per: | (signed) “[Redacted]” | |
| Name: [Redacted – Personal Information] | ||
| Title: Authorized Signatory |
Exhibit A
Restated Certificate
(see attached.)
Seventh
Amended and Restated
CERTIFICATE OF INCORPORATION
OF
Curaleaf, Inc.
* * * * * *
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
Curaleaf, Inc., a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware (the “General Corporation Law”),
DOES HEREBY CERTIFY:
1. That the name of this corporation is Curaleaf, Inc., and that this corporation was originally incorporated pursuant to the General Corporation Law on October 5, 2010 under the name PalliaTech, Inc.
2. Pursuant to Section 245 of the General Corporation Law, this Seventh Amended and Restated Certificate of Incorporation restates and integrates and amends the provisions of the Sixth Amended and Restated Certificate of Incorporation of the corporation dated as of October 15, 2018.
3. Effective upon the filing of this Seventh Amended and Restated Certificate of Incorporation (the “Effective Date”), and without any action on the part of any holder of capital stock, each of the following shares of capital stock outstanding immediately prior to the Effective Date shall be combined, reclassified and changed (the “Reclassification”) into the number of fully paid and non-assessable shares of capital stock set forth in the table below:
| Prior to Effective Date | After Effective Date |
| One Share of Common Stock, $0.00001 par value per share | 9.99 shares of Class B Common Stock, $0.0001 par value per share |
On and after the Effective Date, each outstanding certificate that prior thereto represented shares of capital stock theretofore shall be deemed for all purposes to evidence ownership of and to represent that lesser whole number of shares in which they have been combined, reclassified and changed as herein provided. Until any such outstanding stock certificate shall have been surrendered for transfer or otherwise accounted for to the Corporation, the registered owner thereof on the books and records of the Corporation shall have and be entitled to exercise any voting and other rights with respect to, and to receive any dividend and other distributions upon, the lesser number of shares of capital stock evidenced by such outstanding certificate as above provided.
RESOLVED, that the Sixth Amended and Restated Certificate of Incorporation of this corporation be amended and restated in its entirety to read as follows:
FIRST. The name of the corporation is Curaleaf, Inc. (the “Corporation”).
1
SECOND. The address of the registered office of the Corporation in the State of Delaware is 251 Little Falls Drive, City of Wilmington, County of New Castle, 19808 and the name of its registered agent at that address is Corporation Service Company.
THIRD. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law.
FOURTH. The total number of shares of all classes of stock which the Corporation shall have authority to issue is (i) 1 share of Class A Voting Common Stock, $0.0001 par value per share (“Class A Common Stock”), (ii) 999 shares of Class B Non-Voting Common Stock, $0.0001 par value per share (“Class B Common Stock”), and (iii) 1,000 shares of Class C Voting Common Stock, $0.0001 par value per share (“Class C Common Stock”).
The following is a statement of the designations and the powers, privileges and rights, and the qualifications, limitations or restrictions thereof in respect of each class of capital stock of the Corporation.
| A. | CLASS A COMMON STOCK. |
1. General. The voting, dividend, and liquidation rights of the holders of the Class A Common Stock, as applicable, are subject to and qualified by the rights, powers and preferences of the holders of the Class B Common Stock and Class C Common Stock set forth herein.
2. Voting Rights. The holders of the Class A Common Stock are entitled to one vote for each share of Class A Common Stock held at all meetings of stockholders (and written actions in lieu of meetings). Unless required by law, there shall be no cumulative voting.
3. Dividends. The holders of Class A Common Stock shall not be entitled to receive any other dividends or distributions declared, made or paid by the Corporation (except as provided below upon the liquidation, dissolution or winding up of the Corporation) in respect of the shares of Class A Common Stock held by such holders.
4. Liquidation. In the event of any voluntary or involuntary liquidation, dissolution, or winding up of the Corporation or any Deemed Liquidation Event (as defined below), the holders of Class A Common Stock shall be entitled to receive no more than $0.0001 per share in connection with such event (“Class A Liquidation Amount”). In no event shall any holder of Class A Common Stock be entitled to seek or obtain any consideration, value, dividends, distributions, proceeds or economics in respect of the Class A Common Stock from the Corporation or any other person (including, without limitation, by merger and thus through the exercise of dissenters, appraisal or other similar rights in respect of the Class A Common Stock) in excess of the Class A Liquidation Amount with respect to any share of Class A Common Stock.
5. Subdivision or Consolidation. No subdivision or consolidation of the Class A Common Stock may be carried out unless, at the same time, the Class B Common Stock and Class C Common Stock are subdivided or consolidated in a manner so as to preserve the relative rights of the holders of each class of securities.
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| B. | CLASS B COMMON STOCK. |
1. General. The voting, dividend, and liquidation rights of the holders of the Class B Common Stock, as applicable, are subject to and qualified by the rights, powers and preferences of the holders of the Class A Common Stock and Class C Common Stock set forth herein.
2. Voting Rights. Except as required by applicable law, the Class B Common Stock shall be non-voting.
3. Dividends. The Corporation shall not declare, pay or set aside any dividends on shares of Class B Common Stock of the Corporation unless the holders of the Class C Common Stock then outstanding shall simultaneously receive a dividend on each outstanding share of Class C Common Stock in the same amount.
4. Liquidation.
(a) Payments to Holders of Class B Common Stock. In the event of any voluntary or involuntary liquidation, dissolution, or winding up or Deemed Liquidation Event of the Corporation, after the payment of the Class A Liquidation Amount, the remaining Available Proceeds (as defined below) will be distributed among the holders of shares of Class B Common Stock on a pari passu basis with the holders of shares of Class C Common Stock, pro rata based on the number of shares of Class B Common Stock and Class C Common Stock held by each such holder.
(b) Deemed Liquidation Events. Definition. Each of the following events is a “Deemed Liquidation Event” unless the Board elects otherwise at least five (5) days prior to the effective date of any such event:
(i) a merger or consolidation in which (i) the Corporation is a constituent party or (ii) a subsidiary of the Corporation is a constituent party and the Corporation issues shares of its capital stock pursuant to such merger or consolidation, except any such merger or consolidation involving the Corporation or a subsidiary in which the shares of capital stock of the Corporation outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or exchanged for equity securities that represent, immediately following such merger or consolidation, at least a majority, by voting power, of the equity securities of (1) the surviving or resulting party or (2) if the surviving or resulting party is a wholly owned subsidiary of another party immediately following such merger or consolidation, the parent of such surviving or resulting party; or
(ii) the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the Corporation or any subsidiary of the Corporation of all or substantially all the assets of the Corporation and its subsidiaries taken as a whole, or, if substantially all of the assets of the Corporation and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, the sale or disposition (whether by merger or otherwise) of one or more subsidiaries of the Corporation, except where such sale, lease, transfer or other disposition is to the Corporation or one or more wholly owned subsidiaries of the Corporation.
3
(c) Amount Deemed Paid or Distributed. The funds and assets deemed paid or distributed to the holders of capital stock of the Corporation upon any such merger, consolidation, sale, transfer or other disposition described in this Section C.4 will be the cash or the value of the property, rights or securities paid or distributed to such holders by the Corporation or the acquiring person, firm or other entity (“Available Proceeds”). In the event of any voluntary or involuntary liquidation, dissolution, or winding up of the Corporation, Available Proceeds shall be the cash and the value of the property, rights or securities available for distribution to the holders of capital stock of the Corporation. The value of such property, rights or securities shall be determined in good faith by the Board of Directors.
5. Subdivision or Consolidation. No subdivision or consolidation of the Class B Common Stock may be carried out unless, at the same time, the Class A Common Stock and Class C Common Stock are subdivided or consolidated in a manner so as to preserve the relative rights of the holders of each class of securities.
| C. | CLASS C COMMON STOCK. |
1. General. The voting, dividend, and liquidation rights of the holders of the Class C Common Stock, as applicable, are subject to and qualified by the rights, powers and preferences of the holders of the Class A Common Stock and Class B Common Stock set forth herein.
2. Voting Rights. The holders of the Class C Common Stock are entitled to one vote for each share of Class C Common Stock held at all meetings of stockholders (and written actions in lieu of meetings). Unless required by law, there shall be no cumulative voting.
3. Dividends. The Corporation shall not declare, pay or set aside any dividends on shares of Class C Common Stock of the Corporation unless the holders of the Class B Common Stock then outstanding shall simultaneously receive a dividend on each outstanding share of Class B Common Stock in the same amount.
4. Liquidation. In the event of any voluntary or involuntary liquidation, dissolution, or winding up or Deemed Liquidation Event of the Corporation, after the payment of the Class A Liquidation Amount, the remaining Available Proceeds will be distributed among the holders of shares of Class C Common Stock on a pari passu basis with the holders of shares of Class B Common Stock, pro rata based on the number of shares of Class B Common Stock and Class C Common Stock held by each such holder.
5. Subdivision or Consolidation. No subdivision or consolidation of the Class C Common Stock may be carried out unless, at the same time, the Class A Common Stock and Class B Common Stock are subdivided or consolidated in a manner so as to preserve the relative rights of the holders of each class of securities.
FIFTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware:
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A. Subject to any additional vote required by this Seventh Amended and Restated Certificate of Incorporation or the bylaws, the board of directors of the Corporation is expressly authorized to adopt, amend or repeal the bylaws of the Corporation.
B. Subject to any additional vote required by this Seventh Amended and Restated Certificate of Incorporation, the number of directors of the Corporation shall be determined in the manner set forth in the bylaws of the Corporation.
C. Elections of directors need not be by written ballot unless the bylaws of the Corporation shall so provide.
D. The books of the Corporation may be kept at such place within or without the State of Delaware as the bylaws of the Corporation may provide or as may be designated from time to time by the board of directors of the Corporation.
E. Meetings of stockholders may be held within or without the State of Delaware, as the bylaws of the Corporation may provide.
SIXTH. Each director shall be entitled to cast one (1) vote on all matters and resolutions presented to the board of directors. In the event that the requisite affirmative vote on any matter or resolution presented to the board of directors cannot otherwise be obtained by directors entitled to cast one (1) vote, the duly elected chairperson (excluding any temporary chairperson or member of the board acting as chairperson in the absence of the elected chairperson) of the board shall thereupon instead be entitled to cast two (2) votes on such matter or resolution.
SEVENTH. Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of the Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under the provisions of Section 279 of Title 8 of the Delaware Code, order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of the Corporation, as the case may be, and also on the Corporation.
EIGHTH. To the fullest extent permitted by law, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. If the General Corporation Law or any other law of the State of Delaware is amended after approval by the stockholders of this Article Eighth to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended.
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Any repeal or modification of the foregoing provisions of this Article Eighth by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of, or increase the liability of any director of the Corporation with respect to any acts or omissions of such director occurring prior to, such repeal or modification.
NINTH. The following indemnification provisions shall apply to the persons enumerated below.
A. Right to Indemnification of Directors and Officers. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (an “Indemnified Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that such person, or a person for whom such person is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, limited liability company, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Indemnified Person in such Proceeding. Notwithstanding the preceding sentence, except as otherwise provided in Section C of this Article Ninth, the Corporation shall be required to indemnify an Indemnified Person in connection with a Proceeding (or part thereof) commenced by such Indemnified Person only if the commencement of such Proceeding (or part thereof) by the Indemnified Person was authorized in advance by the board of directors.
B. Prepayment of Expenses of Directors and Officers. The Corporation shall pay the expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any Proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the Indemnified Person to repay all amounts advanced if it should be ultimately determined that the Indemnified Person is not entitled to be indemnified under this Article Ninth or otherwise.
C. Claims by Directors and Officers. If a claim for indemnification or advancement of expenses under this Article Ninth is not paid in full within 30 days after a written claim therefor by the Indemnified Person has been received by the Corporation, the Indemnified Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the Indemnified Person is not entitled to the requested indemnification or advancement of expenses under applicable law.
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D. Indemnification of Employees and Agents. The Corporation may indemnify and advance expenses to any person who was or is made or is threatened to be made or is otherwise involved in any Proceeding by reason of the fact that such person, or a person for whom such person is the legal representative, is or was an employee or agent of the Corporation or, while an employee or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, limited liability company, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorney’s fees) reasonably incurred by such person in connection with such Proceeding. The ultimate determination of entitlement to indemnification of persons who are non-director or officer employees or agents shall be made in such manner as is determined by the board of directors in its sole discretion. Notwithstanding the foregoing sentence, the Corporation shall not be required to indemnify a person in connection with a Proceeding initiated by such person if the Proceeding was not authorized in advance by the board of directors.
E. Advancement of Expenses of Employees and Agents. The Corporation may pay the expenses (including attorney’s fees) incurred by an employee or agent in defending any Proceeding in advance of its final disposition on such terms and conditions as may be determined by the board of directors.
F. Non-Exclusivity of Rights. The rights conferred on any person by this Article Ninth shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, other provision of this Seventh Amended and Restated Certificate of Incorporation, bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
G. Other Indemnification. The Corporation’s obligation, if any, to indemnify any person who was or is serving at its request as a director, officer or employee of another corporation, partnership, limited liability company, joint venture, trust, organization or other enterprise shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, limited liability company, joint venture, trust, organization or other enterprise.
H. Insurance. The board of directors may, to the full extent permitted by applicable law as it presently exists, or may hereafter be amended from time to time, authorize an appropriate officer or officers to purchase and maintain at the Corporation’s expense insurance: (a) to indemnify the Corporation for any obligation which it incurs as a result of the indemnification of directors, officers and employees under the provisions of this Article Ninth; and (b) to indemnify or insure directors, officers and employees against liability in instances in which they may not otherwise be indemnified by the Corporation under the provisions of this Article Ninth.
I. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article Ninth shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification. The rights provided hereunder shall inure to the benefit of any Indemnified Person and such person’s heirs, executors and administrators.
* * *
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4. That the foregoing amendment and restatement was approved by the holders of the requisite number of shares of this corporation in accordance with Section 228 of the General Corporation Law.
5. That this Seventh Amended and Restated Certificate of Incorporation, which restates and integrates and further amends the provisions of this Corporation’s Sixth Amended and Restated Certificate of Incorporation, has been duly adopted in accordance with Sections 242 and 245 of the General Corporation Law.
[signature page follows]
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IN WITNESS WHEREOF, this Seventh Amended and Restated Certificate of Incorporation has been executed by a duly authorized officer of this corporation on this ___ day of _________________, 2023.
| By: | ||
| Matthew Darin, President |
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Exhibit B
Form of Protection Agreement
[Voluntarily omitted – Filed separately.]
Exhibit C
Form of Shareholders Agreement
[Voluntarily omitted – Filed separately.]
Exhibit D
Accredited Investor Status Certificate
ACCREDITED INVESTOR STATUS CERTIFICATE
CURALEAF, INC.
This Certificate is being distributed to certain individuals and/or entities which may be offered the opportunity to purchase securities (the “Securities”) of CURALEAF INC., a Delaware corporation (the “Company”). The purpose of this Certificate is to assure the Company that all such offers and purchases will meet the standards imposed by the Securities Act of 1933, as amended (the “Securities Act”), and applicable state securities laws.
All answers will be kept confidential. However, by signing this Certificate, the undersigned agrees that this information may be provided by the Company to its legal and financial advisors (including Stikeman Elliott LLP and Gesmer Updegrove LLP), and the Company and such advisors may rely on the information set forth in this Certificate for purposes of complying with all applicable securities laws and may present this Certificate to such parties as it reasonably deems appropriate if called upon to establish its compliance with such securities laws. The undersigned represents that the information contained herein is complete and accurate and will notify the Company of any material change in any of such information prior to the undersigned’s investment in the Company.
For Individual Investors
Accredited Investor Certification. The undersigned makes one of the following representations regarding its income, net worth, status as a “family client” of a “family office,” and/or certain professional certifications or designations and certain related matters and has checked the applicable representation:
| ¨ | The undersigned’s incomei during each of the last two years exceeded $200,000 or, if the undersigned is married or has a spousal equivalenti, the joint income of the undersigned and the undersigned’s spouse or spousal equivalent, as applicable, during each of the last two years exceed $300,000, and the undersigned reasonably expects the undersigned’s income, from all sources during this year, will exceed $200,000 or, if the undersigned is married or has a spousal equivalent, the joint income of undersigned and the undersigned’s spouse or spousal equivalent, as applicable, from all sources during this year will exceed $300,000. |
| ¨ | The undersigned’s net worth,ii including the net worth of the undersigned’s spouse or spousal equivalent, as applicable, is in excess of $1,000,000 (excluding the value of the undersigned’s primary residence). |
| ¨ | The undersigned is a holder in good standing of one or more of the following certifications or designations administered by the Financial Industry Regulatory Authority, Inc. (FINRA): the Licensed General Securities Representative (Series 7), Licensed Investment Adviser Representative (Series 65), or Licensed Private Securities Offerings Representative (Series 82). |
| ¨ | The undersigned is a “family client,” as defined in rule 202(a)(11)(G)-1 under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), of a family office as defined in rule 202(a)(11)(G)-1 under the Advisers Act, (i) with assets under management in excess of $5,000,000, (ii) that is not formed for the specific purpose of acquiring the securities offered, and (iii) whose prospective investment is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of the prospective investment, and whose prospective investment is directed by such family office pursuant to clause (iii) of this sentence. |
| ¨ | The undersigned cannot make any of the representations set forth above. |
For Entity Investors
Accredited Investor Certification. The undersigned makes one of the following representations regarding its net worth and certain related matters and has checked the applicable representation:
| ¨ | The undersigned is a trust with total assets in excess of $5,000,000 whose purchase is directed by a person with such knowledge and experience in financial and business matters that such person is capable of evaluating the merits and risks of the prospective investment. |
| ¨ | The undersigned is a bank, an investment adviser registered pursuant to Section 203 of the Advisers Act or registered pursuant to the laws of a state, any investment adviser relying on the exemption from registering with the SEC under Section 203(l) or (m) of the Advisers Act, an insurance company, an investment company registered under the United States Investment Company Act of 1940, as amended, a broker or dealer registered pursuant to Section 15 of the United States Securities Exchange Act of 1934, as amended, a business development company, a Small Business Investment Company licensed by the United States Small Business Administration, a Rural Business Investment Company as defined in Section 384A of the Consolidated Farm and Rural Development Act, as amended, a plan with total assets in excess of $5,000,000 established and maintained by a state for the benefit of its employees, or a private business development company as defined in Section 202(a)(22) of the Advisers Act. |
| ¨ | The undersigned is an employee benefit plan and either all investment decisions are made by a bank, savings and loan association, insurance company, or registered investment advisor, or the undersigned has total assets in excess of $5,000,000 or, if such plan is a self-directed plan, investment decisions are made solely by persons who are accredited investors. |
| ¨ | The undersigned is a corporation, limited liability company, partnership, business trust, not formed for the purpose of acquiring the Securities, or an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), in each case with total assets in excess of $5,000,000. |
| ¨ | The undersigned is an entity in which all of the equity owners (in the case of a revocable living trust, its grantor(s)) qualify under any of the above subparagraphs, or, if an individual, each such individual has a net worth,2 either individually or upon a joint basis with such individual’s spouse or spousal equivalent, as applicable, in excess of $1,000,000 (within the meaning of such terms as used in the definition of “accredited investor” contained in Rule 501 under the Securities Act), or has had an individual income1 in excess of $200,000 for each of the two most recent years, or a joint income with such individual’s spouse or spousal equivalent, as applicable, in excess of $300,000 in each of those years, and has a reasonable expectation of reaching the same income level in the current year. |
| ¨ | The undersigned is an entity, of a type not listed in any of the paragraphs above, which was not formed for the specific purpose of acquiring the securities offered, owning investments in excess of $5,000,000. |
| ¨ | The undersigned is a “family office,” as defined in rule 202(a)(11)(G)-1 under the Advisers Act, (i) with assets under management in excess of $5,000,000, (ii) that is not formed for the specific purpose of acquiring the securities offered, and (iii) whose prospective investment is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of the prospective investment. |
| ¨ | The undersigned is a “family client,” as defined in rule 202(a)(11)(G)-1 under the Advisers Act, of a family office meeting the requirements in the above paragraph and whose prospective investment is directed by such family office pursuant to clause (iii) of the above paragraph. |
| ¨ | The undersigned cannot make any of the representations set forth above. |
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the date written below.
| Name of Investor | |
| (Signature) | |
| Name of Signing Party (Please Print) | |
| Title of Signing Party (Please Print) | |
| Address | |
| Date Signed |
| i | For purposes of this Certificate, “income” means adjusted gross income, as reported for federal income tax purposes, increased by the following amounts: (a) the amount of any tax exempt interest income received, (b) the amount of losses claimed as a limited partner in a limited partnership, (c) any deduction claimed for depletion, (d) amounts contributed to an IRA or Keogh retirement plan, (e) alimony paid, and (f) any amounts by which income from long-term capital gains has been reduced in arriving at adjusted gross income pursuant to the provisions of Section 1202 of the Code. | |
| ii | For purposes of this Certificate, “net worth” means the excess of total assets, excluding your primary residence, at fair market value over total liabilities, including your mortgage or any other liability secured by your primary residence only if and to the extent that it exceeds the value of your primary residence. Net worth should include the value of any other shares of stock or options held by you and your spouse or spousal equivalent and any personal property owned by you or your spouse or spousal equivalent (e.g. furniture, jewelry, other valuables, etc.). For the purposes of calculating joint net worth: joint net worth can be the aggregate net worth of you and your spouse or spousal equivalent; assets need not be held jointly to be included in the calculation. | |
| iii | For purposes of this Certificate, “spousal equivalent” means a cohabitant occupying a relationship generally equivalent to that of a spouse. |
Exhibit E
Form of Restated Bylaws
(see attached.)
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THIRD AMENDED AND RESTATED BYLAWS
OF CURALEAF, INC.
* * * * *
Article i.
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. All meetings of stockholders may be held at such place, either within or without the State of Delaware, as determined by the board of directors (the “Board”) or the chief executive officer, or if not so designated, at the registered office of Curaleaf, Inc. (the “Corporation”). The Board may, in its sole discretion, determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication.
Section 2. Annual Meeting. Annual meetings of stockholders shall be held on the second Tuesday in August in each year following the first fiscal year end of the Corporation if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 a.m., or at such other date and time as shall be designated from time to time by the Board or the chief executive officer, at which meeting the holders of a majority of the shares of the capital stock of the Corporation issued and outstanding and entitled to vote shall elect the members of the Board in accordance with the shareholders agreement entered into by the stockholders of the Corporation (as amended and in effect, the “Shareholders Agreement”) and shall transact such other business as may properly be brought before the meeting. If no date for the annual meeting is established or said meeting is not held on the date established as provided above, a special meeting in lieu thereof may be held or there may be action by written consent of the stockholders on matters to be voted on at the annual meeting, and such special meeting or written consent shall have for the purposes of these third amended and restated bylaws (as amended and in effect, these “Bylaws”) or otherwise all the force and effect of an annual meeting.
Section 3. Special Meetings. Special meetings of the stockholders, for any purpose or purposes, may, unless otherwise prescribed by statute or by the certificate of incorporation of the Corporation, as amended (as so amended and in effect, the “Certificate of Incorporation”), be called by the Board or the chief executive officer or secretary at the request in writing of a majority of the Board. The notice of meeting shall state the purpose or purposes of the proposed meeting. Business transacted at any special meeting shall be limited to matters relating to the purpose or purposes stated in the notice of meeting.
Section 4. Notice of Meetings. Except as otherwise provided by law, written notice of each meeting of stockholders, annual or special, stating the place, if any, date and hour of the meeting, the means of remote communication by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given not less than ten or more than sixty days before the date of the meeting, in the manner set forth in Article IV of these Bylaws, to each stockholder entitled to vote at such meeting and to each other stockholder who, under the Certificate of Incorporation, these Bylaws or the Shareholders Agreement is entitled to such notice.
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Section 5. Voting List. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Nothing contained in this Section shall require the Corporation to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.
Section 6. Quorum. Holders of a majority of the shares of the capital stock of the Corporation issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business, except as otherwise provided by statute, the Certificate of Incorporation, these Bylaws or the Shareholders Agreement. Notwithstanding the forgoing, if proper notice of a stockholders’ meeting is given, and a quorum of stockholders is not present, a second stockholders’ meeting may be held on 48 hours written notice to transact the business specified in the original notice; provided, that, such other meeting is either (i) announced at the meeting at which the adjournment for lack of a quorum is taken, or (ii) displayed, during the time scheduled for the meeting, on the same electronic network used to enable stockholders and proxy holders to participate in the meeting by means of remote communication. If there is only one stockholder entitled to vote at a meeting of stockholders, the quorum for such meeting shall be such stockholder, present in person or represented by proxy, and such stockholder may constitute the meeting.
Section 7. Adjournments. Any meeting of stockholders may be adjourned from time to time to any other time and to any other place, if any, at which a meeting of stockholders may be held under these Bylaws, which time and place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting shall be announced at the meeting, by holders of a majority of the shares of the capital stock of the Corporation, issued and outstanding and entitled to vote thereat, present in person or by proxy, though less than a quorum, or, if no stockholder is present or represented by proxy, by any officer entitled to preside at or to act as secretary of such meeting, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of the Corporation in the manner set forth in Section 4 of this Article I and in Article IV of these Bylaws.
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Section 8. Action at Meetings. When a quorum is present at any meeting, the vote of the holders of a majority of the shares present in person or represented by proxy, and entitled to vote on the question shall decide any question brought before such meeting, unless the question is one upon which by express provision of law, the Certificate of Incorporation, these Bylaws or the Shareholders Agreement, a different vote is required, in which case such express provision shall govern and control the decision of such question.
Section 9. Voting and Proxies. Unless otherwise provided in the Certificate of Incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote for each share of capital stock having voting power held of record by such stockholder. Each stockholder entitled to vote at a meeting of stockholders, or to express consent or dissent to corporate action in writing without a meeting, may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period.
Section 10. Action Without Meeting. Unless otherwise provided in the Certificate of Incorporation or the Shareholders Agreement, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Prompt notice of the taking of the corporate action without a meeting shall be given to the other stockholders of the Corporation, including those stockholders who were not entitled to vote on the matter.
An electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of this section, provided that any such electronic transmission sets forth or is delivered with information from which the Corporation can determine (A) that the electronic transmission was transmitted by the stockholder or proxyholder or by a person or persons authorized to act for the stockholder or proxyholder and (B) the date on which such stockholder or proxyholder or authorized person or persons transmitted such electronic transmission. The date on which such electronic transmission is transmitted shall be deemed to be the date on which such consent was signed. No consent given by electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be made by hand or by certified or registered mail, return receipt requested. Notwithstanding the foregoing limitations on delivery, consents given by electronic transmission may be otherwise delivered to the principal place of business of the Corporation or to an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded if, to the extent and in the manner provided by resolution of the Board of the Corporation.
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Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.
Section 11. Action Held by Remote Communication. Subject to any guidelines and procedures as the Board may adopt, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication: (A) participate in a meeting of stockholders; and (B) be deemed present in person and vote at a meeting of stockholders whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (i) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (ii) the Corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (iii) if any stockholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Corporation.
ARTICLE II.
DIRECTORS
Section 1. Number, Election, Tenure and Qualification. The number of directors which shall constitute the entire board shall be fixed at four (4) unless and until the provisions of the Shareholders Agreement provide otherwise and, after termination of the Shareholders Agreement, the number of directors shall be determined (i) by resolution of the majority of the Board or (ii) by the stockholders at the annual meeting or at any special meeting of stockholders by vote of the holders of a majority of the shares of the capital stock of the Corporation issued and outstanding and entitled to vote for the election of any. Each director shall comply with the qualification requirements set forth in the Shareholders Agreement. Except as otherwise provided by law, the Certificate of Incorporation, these Bylaws or the Shareholders Agreement, the directors shall be elected at the annual meeting or at any special meeting of the stockholders, except as provided in Section 2 of this Article II, and each director elected shall hold office until his successor is elected and qualified, unless sooner replaced. Directors need not be stockholders. Holders of capital stock of the Corporation issued and outstanding and entitled to vote for the election of directors shall vote their shares of capital stock for the election of the directors in accordance with the terms of the Shareholders Agreement. Directors may be elected by written consent of the stockholders in lieu of an annual meeting; provided, that if such consent is less than unanimous, such action by written consent may be in lieu of holding an annual meeting only if all of the directorships to which directors could be elected at an annual meeting held at the effective time of such action are vacant and are filled by such action.
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Section 2. Vacancies. Vacancies shall be filled in the manner set forth in the Shareholders Agreement, subject to the requirements of the General Corporation Law of the State of Delaware. Following termination of the Shareholders Agreement, vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. Subject to the Shareholders Agreement, in the event of a vacancy in the Board, the remaining directors, except as otherwise provided by law or these Bylaws, may exercise the powers of the full Board until the vacancy is filled.
Section 3. Resignation and Removal. Any director may resign at any time upon notice given in writing or by electronic transmission to the Corporation at its principal place of business or to the chief executive officer or secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. Any director or the entire Board may be removed, with or without cause, in accordance with the terms provided for under the Shareholders Agreement, unless otherwise specified by law or the Certificate of Incorporation.
Section 4. General Powers. The business and affairs of the Corporation shall be managed by its Board, which may exercise all powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws directed or required to be exercised or done by the stockholders, provided, however, that the business and affairs of the Corporation shall be managed at all times in accordance with the restrictions set forth in the Shareholders Agreement.
Section 5. Chairman of the Board. If the Board appoints a chairman of the Board, he shall, when present in person, preside at all meetings of the stockholders and the Board. Subject to the provisions of the Shareholders Agreement, the chairman of the Board shall perform such duties and possess such powers as are customarily vested in the office of the chairman of the Board or as may be vested in him by the Board.
Section 6. Place of Meetings. The Board may hold meetings, both regular and special, either within or without the State of Delaware.
Section 7. Regular Meetings. Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board; provided that any director who is absent when such a determination is made shall be given prompt notice of such determination, which may be delivered by electronic transmission.
Section 8. Special Meetings. Subject to the provisions of the Shareholders Agreement, special meetings of the Board may be called by the chief executive officer, secretary, or on the written request of any director. Two days’ prior notice shall be given to each director by the secretary or by the officer or director calling the meeting in accordance with Article IV of these Bylaws.
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Section 9. Quorum, Action at Meeting, Adjournments. Subject to the terms of the Shareholders Agreement, at all meetings of the Board, a majority of directors then in office shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as may be otherwise specifically provided by law, the Certificate of Incorporation or the Shareholders Agreement. For purposes of this section the term “entire board” shall mean the number of directors last fixed by the stockholders or directors, as the case may be, in accordance with law, these Bylaws and the Shareholders Agreement; provided, however, that if less than all the number so fixed of directors were elected, the “entire board” shall mean the greatest number of directors so elected to hold office at any one time pursuant to such authorization. If a quorum shall not be present at any meeting of the Board, a majority of the directors present at such meeting may adjourn the meeting, subject to providing at least twenty-four (24) hours’ notice to the remaining directors of the time and place of such adjourned meeting. At such reconvened meeting, the quorum shall be at least two (2) directors, subject to applicable law, the Certificate of Incorporation and the Shareholders Agreement; provided that only matters contained in the original notice of meeting delivered pursuant to these Bylaws and the General Corporation Law of the State of Delaware shall be transacted at such adjourned meeting. Subject to the Certificate of Incorporation, each director shall be entitled to cast one (1) vote on all matters and resolutions presented to the Board. In the event that the requisite affirmative vote on any matter or resolution presented to the Board cannot otherwise be obtained by directors entitled to cast one (1) vote, the duly elected chairman (excluding any temporary chairman or member of the Board acting as chairman in the absence of the elected chairman) of the Board shall thereupon instead be entitled to cast two (2) votes on such matter or resolution.
Section 10. Action by Consent. Unless otherwise restricted by the Certificate of Incorporation, these Bylaws or the Shareholders Agreement, any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board or a committee thereof. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section 11. Telephonic Meetings. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, members of the Board or of any committee thereof may participate in a meeting of the Board or of any committee, as the case may be, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 12. Committees. The Board may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, any decision regarding the hiring, termination of employment or material change in the responsibilities of any executive officer, or amending the Bylaws of the Corporation; or to declare a dividend or to authorize the issuance of stock. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. Each committee shall keep regular minutes of its meetings and make such reports to the Board as the Board may request. Except as the Board may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided by the directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these Bylaws for the conduct of its business by the Board.
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Section 13. Compensation. Unless otherwise restricted by the Certificate of Incorporation, these Bylaws or the Shareholders Agreement, the Board shall have the authority to fix from time to time the compensation of directors. The directors may be paid their reasonable expenses, if any, of attendance of each meeting of the Board and the performance of their responsibilities as directors and may be paid a fixed sum for attendance at each meeting of the Board and/or a stated salary as director. No such payment shall preclude any director from serving the Corporation or its parent or subsidiary corporations in any other capacity and receiving compensation therefor. The Board may also allow compensation for members of special or standing committees for service on such committees.
ARTICLE III.
OFFICERS
Section 1. Enumeration. The officers of the Corporation shall be chosen by the Board and shall be a president, a secretary and a treasurer and such other officers with such titles, terms of office and duties as the Board may from time to time determine, including a chairman of the Board, one or more vice-presidents, and one or more assistant secretaries and assistant treasurers. If authorized by resolution of the Board, the chief executive officer may be empowered to appoint from time to time assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the Certificate of Incorporation or these Bylaws otherwise provide.
Section 2. Election. The Board at its first meeting after each annual meeting of stockholders shall choose a president, a secretary and a treasurer. Other officers may be appointed by the Board at such meeting, at any other meeting, or by written consent.
Section 3. Tenure. Each officer of the Corporation shall hold office until his successor is chosen and qualifies, unless a different term is specified in the vote choosing or appointing him, or until his earlier death, resignation or removal. Any officer elected or appointed by the Board or by the chief executive officer may be removed at any time by the affirmative vote of a majority of the Board or a committee duly authorized to do so, except that any officer appointed by the chief executive officer may also be removed at any time by the chief executive officer. Any vacancy occurring in any office of the Corporation may be filled by the Board, at its discretion. Any officer may resign by delivering his written resignation to the Corporation at its principal place of business or to the chief executive officer or the secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.
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Section 4. President. The president shall be the chief operating officer of the Corporation. He shall also be the chief executive officer unless the Board otherwise provides. The president shall, unless the Board provides otherwise in a specific instance or generally, have general and active management of the business of the Corporation and see that all orders and resolutions of the Board are carried into effect. The president shall execute bonds, mortgages, and other contracts requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board to some other officer or agent of the Corporation.
Section 5. Vice-Presidents. In the absence of the president or in the event of his inability or refusal to act, the vice-president, or if there be more than one vice-president, the vice- presidents in the order designated by the Board or the chief executive officer (or in the absence of any designation, then in the order determined by their tenure in office) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice-presidents shall perform such other duties and have such other powers as the Board or the chief executive officer may from time to time prescribe.
Section 6. Secretary. The secretary shall have such powers and perform such duties as are incident to the office of secretary. He shall maintain a stock ledger and prepare lists of stockholders and their addresses as required and shall be the custodian of corporate records. The secretary shall attend all meetings of the Board and all meetings of the stockholders and record all the proceedings of the meetings of the Corporation and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board, and shall perform such other duties as may be from time to time prescribed by the Board or chief executive officer, under whose supervision he shall be. He shall have custody of the corporate seal of the Corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The Board may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature.
Section 7. Assistant Secretaries. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the Board, the chief executive officer or the secretary (or if there be no such determination, then in the order determined by their tenure in office), shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the Board, the chief executive officer or the secretary may from time to time prescribe. In the absence of the secretary or any assistant secretary at any meeting of stockholders or directors, the person presiding at the meeting shall designate a temporary or acting secretary to keep a record of the meeting.
Section 8. Treasurer. The treasurer shall perform such duties and shall have such powers as may be assigned to him by the Board or the chief executive officer. In addition, the treasurer shall perform such duties and have such powers as are incident to the office of treasurer. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board, taking proper vouchers for such disbursements, and shall render to the chief executive officer and the Board, when the chief executive officer or Board so requires, an account of all his transactions as treasurer and of the financial condition of the Corporation.
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Section 9. Assistant Treasurers. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the Board, the chief executive officer or the treasurer (or if there be no such determination, then in the order determined by their tenure in office), shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the Board, the chief executive officer or the treasurer may from time to time prescribe.
Section 10. Bond. If required by the Board, any officer shall give the Corporation a bond in such sum and with such surety or sureties and upon such terms and conditions as shall be satisfactory to the Board, including without limitation a bond for the faithful performance of the duties of his office and for the restoration to the Corporation of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control and belonging to the Corporation.
ARTICLE IV.
NOTICES
Section 1. Delivery. Whenever, under the provisions of law, or of the Certificate of Incorporation or these Bylaws, written notice is required to be given to any director or stockholder, such notice may be given by mail, addressed to such director or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Unless written notice by mail is required by law, written notice may also be given by telegram, cable, telecopy, commercial delivery service, telex, other electronic transmission or similar means, addressed to such director or stockholder at his address as it appears on the records of the Corporation, in which case such notice shall be deemed to be given when delivered into the control of the persons charged with effecting such transmission, the transmission charge to be paid by the Corporation or the person sending such notice and not by the addressee. Oral notice or other in-hand delivery (in person or by telephone) shall be deemed given at the time it is actually given.
Section 2. Waiver of Notice. Whenever any notice is required to be given under the provisions of law or of the Certificate of Incorporation or of these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any meeting needs to be specified in any written waiver or any waiver by electronic transmission.
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Section 3. Electronic Notice.
(a) Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under any provision of law, the Certificate of Incorporation, or these Bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice to the Corporation. Any such consent shall be deemed revoked if (1) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent and (2) such inability becomes known to the secretary or an assistant secretary of the Corporation or to the transfer agent, or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.
(b) Notice given pursuant to subsection (a) of this section shall be deemed given: (1) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (2) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (3) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (4) if by any other form of electronic transmission, when directed to the stockholder. An affidavit of the secretary or an assistant secretary or of the transfer agent or other agent of the Corporation that the notice has been given by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
(c) For purposes of these Bylaws, (1) “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process, (2) “electronic mail” means an electronic transmission directed to a unique electronic mail address (which electronic mail shall be deemed to include any files attached thereto and any information hyperlinked to a website if such electronic mail includes the contact information of an officer or agent of the Corporation who is available to assist with accessing such files and information), and (3) “electronic mail address” means a destination, commonly expressed as a string of characters, consisting of a unique user name or mailbox (commonly referred to as the “local part” of the address) and a reference to an internet domain (commonly referred to as the “domain part” of the address), whether or not displayed, to which electronic mail can be sent or delivered.
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ARticle
v.
INDEMNIFICATION
The following indemnification provisions shall apply to the persons enumerated below.
Section 1. Right to Indemnification of Directors and Officers. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (an “Indemnified Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that such person, or a person for whom such person is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, limited liability company, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Indemnified Person in such Proceeding. Notwithstanding the preceding sentence, except as otherwise provided in Section 3 of this Article V, the Corporation shall be required to indemnify an Indemnified Person in connection with a Proceeding (or part thereof) commenced by such Indemnified Person only if the commencement of such Proceeding (or part thereof) by the Indemnified Person was authorized in advance by the Board.
Section 2. Prepayment of Expenses of Directors and Officers. The Corporation shall pay the expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any Proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the Indemnified Person to repay all amounts advanced if it should be ultimately determined that the Indemnified Person is not entitled to be indemnified under this Article V or otherwise.
Section 3. Claims by Directors and Officers. If a claim for indemnification or advancement of expenses under this Article V is not paid in full within 30 days after a written claim therefor by the Indemnified Person has been received by the Corporation, the Indemnified Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the Indemnified Person is not entitled to the requested indemnification or advancement of expenses under applicable law.
Section 4. Indemnification of Employees and Agents. The Corporation may indemnify and advance expenses to any person who was or is made or is threatened to be made or is otherwise involved in any Proceeding by reason of the fact that such person, or a person for whom such person is the legal representative, is or was an employee or agent of the Corporation or, while an employee or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, limited liability company, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorney’s fees) reasonably incurred by such person in connection with such Proceeding. The ultimate determination of entitlement to indemnification of persons who are non-director or officer employees or agents shall be made in such manner as is determined by the Board in its sole discretion. Notwithstanding the foregoing sentence, the Corporation shall not be required to indemnify a person in connection with a Proceeding initiated by such person if the Proceeding was not authorized in advance by the Board.
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Section 5. Advancement of Expenses of Employees and Agents. The Corporation may pay the expenses (including attorney’s fees) incurred by an employee or agent in defending any Proceeding in advance of its final disposition on such terms and conditions as may be determined by the Board.
Section 6. Non-Exclusivity of Rights. The rights conferred on any person by this Article V shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, the Certificate of Incorporation, other provisions of these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
Section 7. Other Indemnification. The Corporation’s obligation, if any, to indemnify any person who was or is serving at its request as a director, officer or employee of another corporation, partnership, limited liability company, joint venture, trust, organization or other enterprise shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, limited liability company, joint venture, trust, organization or other enterprise.
Section 8. Insurance. The Board may, to the full extent permitted by applicable law as it presently exists, or may hereafter be amended from time to time, authorize an appropriate officer or officers to purchase and maintain at the Corporation’s expense insurance: (a) to indemnify the Corporation for any obligation which it incurs as a result of the indemnification of directors, officers and employees under the provisions of this Article V; and (b) to indemnify or insure directors, officers and employees against liability in instances in which they may not otherwise be indemnified by the Corporation under the provisions of this Article V.
Section 9. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article V shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification. The rights provided hereunder shall inure to the benefit of any Indemnified Person and such person’s heirs, executors and administrators.
ARTICLE VI.
CAPITAL STOCK
Section 1. Register of Stockholders. A record shall be kept of the respective names of the persons or entities owning the stock of the Corporation, the number of shares held by such persons or entities, and the respective dates of issuance, and in the case of cancellation, the respective dates of cancellation.
Section 2. Certificates of Stock; Uncertificated Shares. Shares of stock of the Corporation may be certificated or uncertificated, as provided under the General Corporation Law of the State of Delaware. Certificates for the shares of stock, if any, shall be in such form as is consistent with the Certificate of Incorporation and applicable law. Every holder of stock in the Corporation represented by certificates shall be entitled to have a certificate, signed by or in the name of the Corporation by, the chairman or vice-chairman of the Board, or the president or a vice-president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the Corporation, certifying the number of shares owned by him in the Corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.
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Within a reasonable time after the issuance or transfer of uncertificated stock, the Corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to the General Corporation Law of the State of Delaware or that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Except as otherwise expressly provided by law, the rights and obligations of the holders of uncertificated stock and the rights and obligations of the holders of certificates representing stock of the same class and series shall be identical.
The Corporation may issue the whole or any part of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor. Upon the face or back of each stock certificate (if any) issued to represent any such partly paid shares, or upon the books and records of the Corporation in the case of uncertificated partly paid shares, the total amount of the consideration to be paid therefor and the amount paid thereon shall be stated. Upon the declaration of any dividend on fully paid shares, the Corporation shall declare a dividend upon partly paid shares of the same class, but only upon the basis of the percentage of the consideration actually paid thereon.
Section 3. Lost Certificates. The Board may direct a new certificate or certificate, or uncertificated stock, to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, or such uncertificated stock, the Board may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to give reasonable evidence of such loss, theft or destruction, to advertise the same in such manner as it shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed or the issuance of such new certificate or uncertificated stock.
Section 4. Transfer of Stock. Any transfer of shares of the stock of the Corporation shall be made in accordance with the Certificate of Incorporation and the Shareholders Agreement. Transfers of shares of the stock of the Corporation shall be made by, in the case of certificated shares of stock, surrender of the certificate or certificates for such shares properly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, in which case the Corporation shall issue to the person entitled thereto a new certificate or uncertificated stock, cancel the old certificate and record the transaction upon its books. Transfers of uncertificated stock shall be made in compliance with appropriate procedures for transferring stock in uncertificated form, which shall include receipt of appropriate evidence of succession, assignment or authority to transfer.
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Section 5. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than sixty days nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action to which such record date relates. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting. If no record date is fixed, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day before the day on which notice is given, or, if notice is waived, at the close of business on the day before the day on which the meeting is held. The record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board is necessary, shall be the day on which the first written consent is expressed. The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board adopts the resolution relating to such purpose.
Section 6. Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.
Section 7. Regulations. The Board may make such rules and regulations as it may deem expedient, not inconsistent with these Bylaws and the Shareholders Agreement, concerning the issue, transfer and registration of shares of stock of the Corporation. The Board may appoint or authorize any officer or officers to appoint one or more transfer clerks, any of whom may be employees of the Corporation, or one or more transfer agents and one or more registrars, and may require all certificates for stock to bear the signature or signatures of any of them; provided, however, that the signature of any transfer clerk, transfer agent, or registrar may be facsimile. In case any transfer clerk, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such transfer clerk, transfer agent, or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such transfer clerk, transfer agent, or registrar at the date of issue.
ARTICLE VII.
CERTAIN TRANSACTIONS
Section 1. Transactions with Interested Parties. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board or committee thereof which authorizes the contract or transaction or solely because his or their votes are counted for such purpose, if:
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(a) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or
(b) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board, a committee thereof, or the stockholders.
Section 2. Quorum. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board or of a committee that authorizes the contract or transaction.
ARTICLE VIII.
GENERAL PROVISIONS
Section 1. Dividends. Subject to the provisions of the Certificate of Incorporation and the Shareholders Agreement, dividends upon the capital stock of the Corporation, if any, may be declared by the Board at any regular or special meeting or by written consent, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation and the Shareholders Agreement.
Section 2. Reserves. Subject to the provisions of the Certificate of Incorporation and the Shareholders Agreement, the directors may set apart out of any funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve.
Section 3. Checks and Other Instruments. Subject to any limitations which may be set forth in a resolution of the Board, all checks, demands for money, notes, deeds, leases, transfers, contracts, bonds, notes and other obligations to be entered into by the Corporation in the ordinary course of its business without Board action may be signed on behalf of the Corporation by the chief executive officer, a president, or any other officer or officers or other person or persons as the Board may from time to time authorize.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board.
Section 5. Seal. The Board may, by resolution, adopt a corporate seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the word “Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. The seal may be altered from time to time by the Board.
Section 6. Form of Records. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device, or method provided that the records so kept can be converted into clearly legible paper form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to any provision of the General Corporation Law of the State of Delaware. When records are kept in such manner, a clearly legible paper form produced from or by means of the information storage device or method shall be admissible in evidence, and accepted for all other purposes, to the same extent as an original paper record of the same information would have been, provided the paper form accurately portrays the record.
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article
ix.
AMENDMENTS
These Bylaws may be altered, amended or repealed or new Bylaws may be adopted by the Board at any regular meeting of the Board or at any special meeting of the Board, and provided further such alteration, amendment, repeal or adoption shall be subject to the express limitations in Section 9 of Article V and the General Corporation Law of the State of Delaware
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Exhibit 99.7
PROTECTION AGREEMENT
CURALEAF HOLDINGS, INC.
- and -
CURALEAF, INC.
December 8, 2023
TABLE OF CONTENTS
| 1. | Definitions | 1 | |
| 2. | Conduct of Business of the Company | 6 | |
| (a) | Conduct | 6 | |
| (b) | Restrictions | 6 | |
| (c) | Obligations | 10 | |
| (d) | Notices | 10 | |
| (e) | Annual Business Plan | 11 | |
| (f) | Director Designation Rights | 11 | |
| (g) | Information Rights | 11 | |
| (h) | Access | 12 | |
| (i) | Audit | 12 | |
| (j) | Investigations | 12 | |
| (k) | Public Announcements | 12 | |
| (l) | Interpretation | 12 | |
| 3. | Representations and Warranties | 13 | |
| 4. | Miscellaneous | 14 | |
| (a) | Successors and Assigns | 14 | |
| (b) | Governing Law | 14 | |
| (c) | Counterparts | 15 | |
| (d) | Headings, etc. | 15 | |
| (e) | Notices | 15 | |
| (f) | Amendments and Waivers | 15 | |
| (g) | Further Assurances | 15 | |
| (h) | Publicity | 16 | |
| (i) | Severability | 16 | |
| (j) | Entire Agreement | 16 | |
| (k) | Injunctive Relief | 16 | |
| (l) | Remedies Cumulative | 16 | |
| (m) | Costs and Expenses | 16 | |
| (n) | Construction | 16 | |
| (O) | WAIVER OF JURY TRIAL | 17 | |
| (p) | SUBMISSION TO JURISDICTION | 17 | |
| (q) | Acknowledgement | 18 | |
| (r) | Control of the Business | 18 | |
PROTECTION AGREEMENT
THIS PROTECTION AGREEMENT is made effective the 8th day of December, 2023 (the “Agreement Date”), by and between CURALEAF HOLDINGS, INC., a corporation existing under the laws of the Province of British Columbia, Canada (“Curaleaf Holdings”), and CURALEAF, INC., a corporation existing under the laws of the State of Delaware, United States (the “Company”). Curaleaf Holdings and the Company are referred to herein collectively as the “Parties” or, individually, as a “Party”, as the context requires.
RECITALS
WHEREAS, the outstanding capital stock of the Company consists of (i) 999 shares of Class B Non-Voting Common Stock, $0.0001 par value per share (the “Class B Non-Voting Shares”), which are held by Curaleaf Holdings, and (ii) 1 share of Class A Voting Common Stock, $0.0001 par value per share (the “Class A Voting Shares”), which is held by Lifebrook Investments Ltd., an entity formed under the laws of England and Wales (the “Investor”);
WHEREAS, the Company, Curaleaf Holdings and the Investor executed that certain Shareholders Agreement dated as of the Agreement Date (the “Shareholders Agreement”);
WHEREAS, the Class B Non-Voting Shares held by Curaleaf Holdings are convertible into Class C Voting Shares (as defined below) in accordance with the Shareholders Agreement and the Organizational Documents (as defined below) of the Company;
WHEREAS, Curaleaf Holdings is seeking assurances from the Company that it will not intentionally erode the value of the Class B Non-Voting Shares until all of the Class B Non-Voting Shares it owns are converted into Class C Voting Shares, in accordance with the Shareholders Agreement and Organizational Documents of the Company; and
WHEREAS, the Parties have entered into this Agreement to address the concerns raised by Curaleaf Holdings.
NOW THEREFORE in consideration of the foregoing premises, which are an integral part hereof, and in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
| 1. | Definitions. |
In addition to the terms defined elsewhere in this Agreement, for purposes of this Agreement:
| (a) | “Affiliate” means, with respect to any Person, any other Person who, directly or indirectly (including through one or more intermediaries), controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control,” when used with respect to any specified Person, shall mean the power, direct or indirect, to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or partnership or other ownership interests, by contract or otherwise; provided, however, that a Person that, directly or indirectly, owns or controls over 50% or more of any voting securities, partnership, or other interests that provide the ability to cause the direction of the management and policies of such Person shall be deemed to control such other Person; and the terms “controlling” and “controlled” shall have correlative meanings. |
| (b) | “Agreement Date” has the meaning set forth in the preamble to this Agreement. |
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| (c) | “Annual Business Plan” means, in respect of a Fiscal Year, the annual business plan of the Company, as adopted or modified. |
| (d) | “Approved Annual Business Plan” means, in respect of a Fiscal Year, the Annual Business Plan that is approved by Curaleaf Holdings. |
| (e) | “Authorization” means, with respect to a Person, any order, permit, approval, consent, waiver, license or similar authorization of any Governmental Authority having jurisdiction over the Person. |
| (f) | “Board” means the board of directors of the Company. |
| (g) | “Business Day” means any day of the year, other than a Saturday, Sunday or a day on which commercial banks in New York, NY are authorized or required to close. |
| (h) | “Class A Voting Shares” has the meaning set forth in the preamble to this Agreement. |
| (i) | “Class B Non-Voting Shares” has the meaning set forth in the preamble to this Agreement. |
| (j) | “Class C Voting Shares” means the shares of Class C Voting Common Stock, $0.0001 par value per share, of the Company. |
| (k) | “Company” has the meaning ascribed thereto in the preamble to this Agreement. |
| (l) | “Company Shares” means, collectively, the Class B Non-Voting Shares and the Voting Shares. |
| (m) | “Contract” means any oral or written contract, obligation, understanding, commitment, lease, license, instrument, purchase order, bid or other agreement. |
| (n) | “Copyrights” means any and all works of authorship, copyrightable subject matter, copyrights, mask works, and database rights, together with all website content, source code, computer programs, digital content, forms, manuals, reports, guidelines, labels, documents, advertising materials, promotional materials, and marketing materials, all translations, derivative works, adaptations, compilations and combinations of the foregoing, and all applications, registrations and renewals in connection therewith. |
| (o) | “Curaleaf Holdings” has the meaning ascribed thereto in the preamble to this Agreement. |
| (p) | “Curaleaf Holdings Subordinate Voting Shares” means the subordinate voting shares in the capital of Curaleaf Holdings. |
| (q) | “Curaleaf USA Group” means the Company and its Subsidiaries. |
| (r) | “Debt” means any (i) obligations relating to indebtedness for borrowed money; (ii) obligations evidenced by bonds, notes, debentures or similar instruments; (iii) obligations in respect of capitalized leases (calculated in accordance with GAAP); (iv) obligations for the deferred purchase price of property or services; (v) obligations in the nature of guarantees of obligations of the type described in clauses (i) through (iv) above of any other Person; and (vi) all accrued interest in respect of any of the foregoing and any applicable prepayment, redemption, breakage, make- whole or other premiums, fees or penalties. |
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| (s) | “Director(s)” means the Persons who are elected as directors of the Company in accordance with the Shareholders Agreement. |
| (t) | “Domain Names” means any and all Internet addresses and domain names, together with all applications, registrations and renewals in connection therewith. |
| (u) | “Fiscal Year” means the twelve-month period commencing on January 1st of each year and ending December 31st of such year. |
| (v) | “GAAP” means generally accepted accounting principles in effect from time to time in the United States as set forth in pronouncements of the Financial Accounting Standards Board (and its predecessors) and the American Institute of Certified Public Accountants. |
| (w) | “Governmental Authority” means any United States, Canadian or other applicable (i) governmental or public department, central bank, court, minister, governor-in-council, cabinet, commission, tribunal, board, bureau, agency, commissioner or instrumentality, whether international, multinational, national, federal, provincial, state, municipal, local, or other; (ii) subdivision or authority of any of the above; (iii) stock exchange; and (iv) quasi-governmental or private body exercising any regulatory, expropriation or taxing authority under or for the account of any of the above. |
| (x) | “Intellectual Property” means all intellectual property, intellectual property rights and all proprietary rights of any type in any jurisdiction throughout the world, whether registered or unregistered, whether published or not published, including the following and all rights of the following types, together with all rights, title and interests otherwise pertaining to or deriving from: (i) Patents; (ii) Trademarks; (iii) Copyrights; (iv) Proprietary Information; (v) Domain Names; (vi) Social Media Identifiers; (vii) all design rights, economic rights, moral rights, publicity rights, privacy rights and shop rights; (vii) all Software; (ix) all intellectual property licenses and sublicenses; (x) all rights to claim priority to, file an application for, and obtain a grant, renewal and extension in connection with any of the foregoing; (xi) all applications, registrations and renewals in connection with any of the foregoing; (xii) all rights to assert, defend and recover title in connection with any of the foregoing; (xiii) all rights to sue and recover for any past, present and future infringement, misappropriation, violation, damages, lost profits, royalties, payments and proceeds in connection with any of the foregoing; (xiv) all other intellectual property or proprietary rights; and (xv) all copies and tangible embodiments of any of the foregoing. |
| (y) | “Investor” has the meaning set forth in the preamble to this Agreement. |
| (z) | “Law” means any domestic or foreign federal, state or local statute, law, ordinance or code, or any written rules, regulations or administrative interpretations issued by any Governmental Authority pursuant to any of the foregoing, and any order, writ, injunction, directive, judgment or decree of a court of competent jurisdiction applicable to the Parties or their respective properties, assets, officers, directors, managers, employees or agents, as the case may be, with the exception of any of the foregoing as they relate to U.S. Federal Cannabis Laws. |
| (aa) | “Liability” means any liability, whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due. |
| (bb) | “Lien” means (i) any mortgage, charge, pledge, hypothecation, security interest, assignment by way of security, encumbrance, lien (statutory or otherwise), hire purchase agreement, conditional sale agreement, deposit arrangement, title retention agreement or arrangement; (ii) any trust arrangement, (iii) any arrangement which creates a right of set-off out of the ordinary course of business, (iv) any option, warrant, right or privilege capable of becoming a Transfer or (v) any agreement to grant any such rights or interests. |
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| (cc) | “Ordinary Course of Business” means the ordinary course of business consistent with past custom and practice (including with respect to quantity and frequency). |
| (dd) | “Organizational Documents” means the certificate of incorporation, amalgamation or amendment, bylaws, memorandum of association, operating agreement, partnership agreement, shareholders agreement, and/or similar constituting documents of a Person, in each case as amended and as applicable. |
| (ee) | “Parties” or “Party” has the meaning ascribed thereto in the preamble to this Agreement. |
| (ff) | “Patents” means any and all patents and patent applications, including all reissuances, continuations, continuations-in-part, divisions, provisionals, non-provisionals, extensions, re- examinations, inter partes review applications, post grant review applications, covered business method applications, applications claiming or providing priority thereto, applications based on any inventions, and all certificates and patents issued therefrom. |
| (gg) | “Person” means an individual, partnership, limited partnership, limited liability partnership, corporation, limited liability company, unlimited liability company, joint stock company, trust, unincorporated association, joint venture or other entity or Governmental Authority, and pronouns have a similarly extended meaning. |
| (hh) | “Proprietary Information” means any and all trade secrets, know-how, confidential or proprietary information, any information that derives economic value from not being generally known, inventions, ideas, discoveries, research, development, improvements, processes, methods, formulas, compositions, substances, models, materials, parameters, procedures, techniques, therapies, treatments, technologies, devices, systems, modules, studies, protocols, budgets, tests, test and study results, diagnoses, analyses, data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and technical, clinical, operational, financial and business information. |
| (ii) | “Regulatory Approval” means any consent, waiver, permit, exemption, review, order, decision or approval of, or any registration and filing with, any Governmental Authority, or the expiry, waiver or termination of any waiting period imposed by Law or a Governmental Authority, and with respect to such consent, waiver, permit, exemption, review, order, decision or approval of, or any registration and filing with, any Governmental Authority, it shall not have been withdrawn, terminated, lapsed, expired or is otherwise no longer effective. |
| (jj) | “Representatives” means a Party’s directors, officers, employees, agents and financial and legal advisors. |
| (kk) | “Shareholders Agreement” has the meaning set forth in the preamble to this Agreement. |
| (ll) | “Shares” means (i) the Company Shares, (ii) any securities of the Company into which such Company Shares may be converted, reclassified, re-designated, subdivided, consolidated or otherwise changed (including without limitation the Class C Voting Shares), (iii) any securities of the Company or of any other Person received by the holders of such shares as a result of any merger, amalgamation, reorganization, arrangement or other similar transaction involving the Company, and one or more wholly-owned subsidiary(ies), (iv) any securities of the Company which are received by any one or more Persons as a share dividend or distribution on or in respect of such shares, and (v) any security, other instrument or right that is exercisable, exchangeable or convertible into, or evidences the right to acquire, any shares of the Company or any of the other above securities. |
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| (mm) | “Social Media Identifiers” means all social media accounts, corporate identifiers, website addresses, pages, profiles, handles, feeds, registrations, and presences, together with all content and data thereof and all account information, user names and passwords necessary to access, transfer, use and update any of the foregoing. |
| (nn) | “Software” means all (i) software, computer programs, applications, systems, code, data, databases, and information technology, including firmware, middleware, drivers, system monitoring software, algorithms, models, methodologies, program interfaces, source code, object code, html code, and executable code; (ii) Internet and intranet websites, databases and compilations, including data and collections of data, whether machine-readable or otherwise; (iii) development and design tools, utilities, and libraries; (iv) technology supporting websites, digital contents, user interfaces, and the contents and audiovisual displays of websites; (v) versions, updates, corrections, enhancements, and modifications thereto; and (vi) media, documentation and other works of authorship, including forms, user manuals, developer notes, comments, support, maintenance and training materials, relating to or embodying any of the foregoing or on which any of the foregoing is recorded. |
| (oo) | “State and/or Local Cannabis License” means any license required by a state or municipality in order to operate a cannabis business or to own or lease property used by a cannabis business within that state or municipality’s jurisdiction. |
| (pp) | “Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association, or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; or (ii) if a limited liability company, partnership, association, or other business entity (other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof and for this purpose, a Person or Persons owns a majority ownership interest in such a business entity if such Person or Persons shall control any board of managers or similar of such business entity. The term “Subsidiary” shall include all Subsidiaries of any such Subsidiary. |
| (qq) | “Tax Return” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof. |
| (rr) | “Tax” or “Taxes” means any federal, state, local and foreign net income, alternative or add-on minimum, estimated, gross income, gross receipts, sales, use, ad valorem, value added, transfer, franchise, capital profits, lease, service, license, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, abandoned property or escheat, environmental or windfall profit tax, customs duty or other tax, governmental fee or other like assessment or charge (and any Liability incurred or borne by virtue of the application of Treasury Regulation Section 1.1502-6 (or any similar or corresponding provision of state, local or foreign Law), as a transferee or successor, by contract or otherwise), together with all interest, penalties, additions to tax and additional amounts with respect thereto, whether disputed or not. |
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| (ss) | “Trademarks” means any and all trademarks, service marks, certification marks, collective marks, logos, symbols, slogans, trade dress, trade names, brand names, corporate or business names, and all other source or business identifiers, together with all translations, adaptations, derivations and combinations of the foregoing, all goodwill of the business associated with each of the foregoing, all common law rights thereto, and all applications, registrations and renewals in connection therewith. |
| (tt) | “Transfer” means to, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any Shares owned by a Person or any interest (including a beneficial interest) in any Shares owned by a Person. |
| (uu) | “U.S. Federal Cannabis Laws” means any U.S. Federal law, civil, criminal or otherwise, that prohibits or penalizes, the advertising, cultivation, harvesting, production, distribution, sale and possession of marijuana (as defined in the Controlled Substances Act) and/or related substances or products containing or relating to the same, and related activities. |
| (vv) | “Voting Shares” means, collectively, the Class A Voting Shares and the Class C Voting Shares. |
| 2. | Conduct of Business of the Company. |
| (a) | Conduct. Except as expressly required or permitted by this Agreement, the Shareholders Agreement or the Organizational Documents of the Company or its Subsidiaries, as the case may be, the Company covenants and agrees that the Company shall, and shall cause each of its Subsidiaries to conduct its business in the Ordinary Course of Business and in accordance with its Organizational Documents and all applicable Laws. The Company shall maintain and preserve its and its Subsidiaries’ business organizations, properties, assets, rights, employees, goodwill and business relationships with customers, suppliers, partners and other Persons with which the Company or any of its Subsidiaries has material business relations; provided that the foregoing shall not limit the Company’s and its Subsidiaries’ rights to modify or terminate business relationships, terminate employees, transfer properties, assets and rights and take similar actions, in each case in the Ordinary Course of Business. |
| (b) | Restrictions. Without limiting the generality of Section 2(a), the Company covenants and agrees that, except: (i) with the prior written consent of Curaleaf Holdings, (ii) as expressly required or permitted by this Agreement, the Shareholders Agreement or the Organizational Documents of the Company or applicable Subsidiaries, (iii) as required by applicable Laws, or (iv) as required for the Company or any Subsidiary to obtain or maintain any State and/or Local Cannabis License, the Company shall not, and, as applicable, shall not permit any of its Subsidiaries to, directly or indirectly: |
| (i) | amend the Organizational Documents of the Company or its Subsidiaries; |
| (ii) | change the authorized capital of the Company or any of its Subsidiaries, change the number of issued and outstanding securities or increase or reduce the capitalization of the Company or any of its Subsidiaries, by way of stock split, reverse stock split, conversion, exchange of securities or otherwise; |
| (iii) | change the size of the Board from four (4) members; |
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| (iv) | remove and/or replace a Director on the Board or the board of directors (or similar body) of any Subsidiary of the Company, except in accordance with the Shareholders Agreement; |
| (v) | appoint any individual, other than an individual currently serving as an executive officer of Curaleaf Holdings, to serve as an executive officer of the Company or any of the Subsidiaries, including, without limitation, the chief executive officer, chief financial officer and executive chairman or any executive officer in an equivalent position, or remove, dismiss or terminate any such individual from his or her position unless in connection with such individual’s resignation of employment with the Company or such Subsidiary; |
| (vi) | change the location of the registered or head office of the Company; |
| (vii) | determine or materially amend any annual compensation of any executive officer of the Company or any of its Subsidiaries (including salary, bonus, option or equity participation) unless such modification of compensation is pursuant to the terms of an existing employment agreement, or enter into or materially amend any employment agreements with any such executive officer outside the Ordinary Course of Business; |
| (viii) | make any material change in the nature of the business of the Company or any of its Subsidiaries, including acquiring, establishing or entering new lines of business or exiting current lines of business, it being acknowledged and agreed that any business related to the cultivation, processing, distributing, marketing, and/or selling of cannabis or hemp or cannabis- or hemp-derived products shall not constitute a new line of business or a change in the nature of any existing business; |
| (ix) | approve any Transfer of shares or securities of the Company or any Subsidiary, except Transfers within the Curaleaf USA Group; |
| (x) | redeem, repurchase, or otherwise acquire, or offer to redeem, repurchase or otherwise acquire, any securities of the Company or any of its Subsidiaries; |
| (xi) | issue additional securities (x) of the Company to any Person other than Curaleaf Holdings, provided that any such issuance of additional securities to Curaleaf Holdings must include a conversion right to convert such additional securities into Class C Voting Shares (as applicable) on the same terms and conditions as its conversion rights with respect to its Class B Non-Voting Shares, or (y) of any Subsidiary to any Person other than the Company or another Subsidiary; |
| (xii) | create any new Subsidiaries other than Subsidiaries that are wholly owned by the Company or another wholly-owned Subsidiary; |
| (xiii) | declare, set aside or pay any dividend or other distribution of any kind or nature (whether in cash, stock or property or any combination thereof) in respect of any securities, other than dividends between wholly-owned Subsidiaries of the Company or between wholly-owned Subsidiaries of the Company and the Company; |
| (xiv) | approve the Annual Business Plan or any budget increases thereunder which (x) are more than [Redacted]% for any specific budget item or (y) exceed the Approved Annual Business Plan by more than [Redacted]% in the aggregate; |
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| (xv) | appoint, change or remove the auditors of Curaleaf Holdings, the Company and its Subsidiaries; |
| (xvi) | reorganize, amalgamate or merge the Company or any Subsidiary with a third-party; |
| (xvii) | undertake any voluntary dissolution, liquidation or winding-up of the Company or any Subsidiary or any other distribution of assets of the Company or any Subsidiary for the purpose of winding-up its affairs; |
| (xviii) | adopt a plan of liquidation or resolution providing for the liquidation or dissolution of the Company or any of its Subsidiaries; |
| (xix) | incur or commit to incur, or enter into any Contract which provides for, capital expenditures in excess of $[Redacted] during any Fiscal Year, either individually or in the aggregate, other than as contemplated by the Approved Annual Business Plan or as already committed to or existing as of the Agreement Date; |
| (xx) | make any loan or advance to any Person, other than (w) any loan or advance made by the Company or any of its wholly-owned Subsidiaries to the Company or any of its wholly-owned Subsidiaries, (x) as contemplated in the Approved Annual Business Plan, (y) as already committed to or existing as of the Agreement Date, or (z) advances made in the Ordinary Course of Business; |
| (xxi) | assume or guarantee in any way the payment or performance (or payment of damages in the event of non-performance) of any indebtedness or other Liability or obligation of any other Person other than any existing obligations as of the Agreement Date or obligations of wholly-owned Subsidiaries; |
| (xxii) | sell, transfer, lease, exchange or otherwise dispose of any material equipment, business or asset of the Company or any Subsidiary, other than in the Ordinary Course of Business; |
| (xxiii) | grant or permit to exist any new Lien on the assets of the Company or any of its Subsidiaries other than (i) Liens for taxes, assessments or governmental charges or levies on property not yet due and delinquent, (ii) easements, encroachments and other minor imperfections of title which do not, individually or in the aggregate, materially detract the value of or impair the use or marketability of any real property, or (iii) mechanics’, carriers’, workmen’s, repairmen’s or other similar Liens arising or incurred in the Ordinary Course of Business; |
| (xxiv) | enter into any agreement for the acquisition of, or investment in, a business (whether by purchase of shares or assets, or otherwise) if the purchase price or subscription price, as applicable, in connection with such agreement would exceed $[Redacted] (as converted into U.S. dollars using the exchange rate for the conversion of a given currency into U.S. dollars published by the Wall Street Journal on the date of determination if the purchase price or subscription price is denominated in another currency, and/or, if the purchase price for such acquisition or investment is payable in Curaleaf Holdings Subordinate Voting Shares, using the volume weighted average price of the Curaleaf Holdings Subordinate Voting Shares on the Toronto Stock Exchange or such other exchange on which the Curaleaf Holdings Subordinate Voting Shares are then traded for the five (5) trading days prior to the date of determination); |
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| (xxv) | enter into any interested party transaction, (i.e., any Contract or arrangement with any officer or director of the Company or any Subsidiary), unless such transaction is on arm’s-length, fair market value terms; |
| (xxvi) | enter into any Contract for Debt or incur Debt in excess of $[Redacted] either individually or in the aggregate during any Fiscal Year, other than (x) as contemplated by the Annual Business Plan, or (y) obligations existing as of the Agreement Date; |
| (xxvii) | enter into any agreement or arrangement that would limit or restrict in any material respect the Company or any of its current or future Subsidiaries from competing in any manner; |
| (xxviii) | knowingly take any action or fail to take any action which action or failure to act would reasonably be expected to result in the loss, expiration or surrender of, or the loss of any material benefit under, or would reasonably be expected to cause any Governmental Authority to institute proceedings for the suspension, revocation or limitation of rights under, any material Authorizations necessary to conduct its businesses as now conducted, or fail to prosecute any pending applications to any Governmental Authorities for material Authorizations; |
| (xxix) | abandon or fail to diligently pursue any renewal application for any Authorizations necessary to conduct the business of the Company or any of its Subsidiaries as now conducted; |
| (xxx) | grant or commit to grant a license or otherwise transfer, abandon, or permit to become abandoned any material Intellectual Property or exclusive rights in or in respect thereof; |
| (xxxi) | (w) commence any action, suit or proceeding, including a defense to a claim or counterclaim, where the amount in dispute is over $[Redacted], (x) compromise or settle any action, suit, proceeding where the amount in dispute is over $[Redacted], (y) compromise or settle any material administrative proceeding or investigation, or (z) submit to binding arbitration where the amount in dispute is over $[Redacted]; |
| (xxxii) | take any action, or refrain from taking any action, or permit any action to be taken or not taken, which could reasonably be expected to prevent, materially delay or otherwise impede the ability for Curaleaf Holdings to convert the Class B Non-Voting Shares into Class C Voting Shares; |
| (xxxiii) | (v) acknowledge the insolvency of the Company or any of its Subsidiaries or the inability of the Company or any of its Subsidiaries to pay its debts as they become due; (w) make an assignment for the benefit of the creditors of the Company or any of its Subsidiaries; (x) appoint or allow the appointment of any receiver, receiver-manager, trustee, liquidator or other Person acting in a similar capacity; (y) institute any proceeding seeking to have the Company or any of its Subsidiaries adjudicated a bankrupt or insolvent; or (z) take any action or instituting any proceeding for the purpose of, or leading to, the liquidation, dissolution, winding-up, reorganization, arrangement, adjustment, protection, relief or composition of the Company or any of its Subsidiaries or their respective debts under any Law relating to bankruptcy, insolvency, reorganization or relief of debtors; or |
| (xxxiv) | authorize, agree, resolve or otherwise commit, whether or not in writing, to do any of the foregoing. |
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| (c) | Obligations. Without limiting the generality of Section 2(a), the Company covenants and agrees that, except: (i) with the prior written consent of Curaleaf Holdings, (ii) as expressly required or permitted by this Agreement, the Shareholders Agreement or the Organizational Documents of the Company or applicable Subsidiaries, (iii) as required by applicable Laws, or (iv) as required for the Company or any Subsidiary to obtain or maintain any State and/or Local Cannabis License, the Company shall, and shall cause its Subsidiaries to, directly or indirectly: |
| (i) | do or cause to be done all things reasonably necessary to preserve and maintain the existence of the Company and its Subsidiaries; |
| (ii) | take all actions reasonably necessary or desirable to maintain the Company’s and its Subsidiaries’ good standing and qualification to conduct business in its jurisdiction of formation and in any other jurisdiction in which it is required to be so qualified, including but not limited to filing all applicable annual reports, paying all applicable franchise or similar Taxes, and maintaining all applicable franchises, permits and qualifications; |
| (iii) | prepare and file when due all Tax Returns required to be filed by the Company and its Subsidiaries (except for any Tax Return for which an extension has been granted, in which case, such Tax Return shall be filed on or prior to the extended deadline), and pay, or cause to be paid, all Taxes (including estimated Taxes) due on such Tax Return (or due with respect to Tax Returns for which an extension has been granted) or which are otherwise required to be paid; |
| (iv) | take all reasonable steps and actions that are within its power and control to obtain and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are reasonably required in order to (i) conduct the business of the Company and its Subsidiaries as now conducted or as proposed to be conducted in all material respects, (ii) maintain the Company’s and its Subsidiaries’ material Contracts in full force and effect, without limiting the right or ability of the Company or any Subsidiary to amend or terminate any Contract when such amendment or termination is in the Company’s or such Subsidiary’s, as the case may be, best interest, and (iii) permit the conversion of the Class B Non-Voting Shares into Class C Voting Shares in accordance with the terms of this Agreement; and |
| (v) | maintain, or cause to be maintained, public liability and casualty insurance, all in such form, coverages and amounts as are reasonably consistent with industry practices. |
| (d) | Notices. The Company covenants and agrees that it shall: |
| (i) | promptly notify Curaleaf Holdings of the occurrence, or failure to occur, of any event or state of facts which the Company becomes aware of which occurrence or failure would, or would be reasonably likely to result in the material failure to comply with or satisfy any material covenant, condition or agreement to be complied with or satisfied by the Company under this Agreement or would require Curaleaf Holdings to make a public disclosure under applicable Law; |
| (ii) | promptly notify Curaleaf Holdings of any notice or other communication from any Person that is a counterparty to a material Contract of the Company or any Subsidiary to the effect that such Person is terminating or otherwise materially modifying a material Contract of the Company or any of its Subsidiaries, where such termination or modification would reasonably be expected to be adverse to the Company or such Subsidiary in any material respect; |
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| (iii) | promptly notify Curaleaf Holdings of any notice or other communication received by the Company from any Governmental Authority regarding the revocation or threatened revocation of any material Authorization or Regulatory Approval; |
| (iv) | promptly notify Curaleaf Holdings of any filings, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise materially affecting the Company or any of its Subsidiaries, where such filing, action, suit, claim, investigation or proceeding would reasonably be expected to be adverse to the Company or such Subsidiary in any material respect; and |
| (v) | notify Curaleaf Holdings in writing of any material change in insurance coverages within 30 days of binding or cancellation. |
| (e) | Annual Business Plan. |
| (i) | [Redacted] the Company shall prepare and submit to Curaleaf Holdings a proposed Annual Business Plan for the next Fiscal Year. [Redacted]. |
| (ii) | Notwithstanding the foregoing, if Curaleaf Holdings adopts a business plan that includes the Company and its Subsidiaries and provides the same to the Company, the Company agrees to adopt such business plan and such business plan shall be deemed to be the Approved Annual Business Plan. In such event, the requirements of Section 2(e)(i) shall be deemed to be waived. |
| (iii) | The Company shall promptly notify Curaleaf Holdings of any reasonably anticipated overruns in excess of the expenditures authorized in an Approved Annual Business Plan (including contingency expenditures) if such overruns are anticipated to be in excess of [Redacted]%, individually or in the aggregate. The Company shall not incur expenditures (on a consolidated basis) in any quarter that exceed the expenditures authorized in an Approved Annual Business Plan by more than [Redacted]%, individually or in the aggregate. |
| (iv) | In the event that the Company and Curaleaf Holdings are unable to approve any Annual Business Plan in whole or in part prior to the start of a Fiscal Year in accordance with this Section 2(e), the financial budget contained in the Annual Business Plan for the preceding Fiscal Year will continue to apply to the extent of such disagreement until a complete Annual Business Plan for the then-current Fiscal Year is approved in accordance with this Section 2(e), with necessary changes. |
| (f) | Director Designation Rights. The Company shall take all actions within the Company’s power in order to cause the Directors to be designated and elected on the Board or the board of directors (or similar body) of any Subsidiary as set forth in the Shareholders Agreement. The Company covenants and agrees with Curaleaf Holdings that, upon the election to the Board of any Director designated by Curaleaf Holdings, the Company shall provide such Director with an indemnity on terms at least as favorable to such Director as those provided to all other Directors of the Company and the Company shall ensure that such Director has the benefit of any director or officer insurance policy in effect for the Company, as applicable, such benefits to be at least as favorable as those available to all other members of the Board. |
| (g) | Information Rights. The Company covenants and agrees that it shall: |
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| (i) | provide Curaleaf Holdings with any information related to the Company or any Subsidiary required for Curaleaf Holdings to prepare the annual and interim consolidated financial statements of Curaleaf Holdings, the Company and its Subsidiaries; |
| (ii) | promptly notify Curaleaf Holdings of any material change or material fact with respect to the respective businesses and operations of the Company and its Subsidiaries and any other material information, in each case as required by Curaleaf Holdings to comply with its disclosure obligations under applicable Law and the rules and regulations of any applicable stock exchange, as described below; and |
| (iii) | provide Curaleaf Holdings with any other material information relating to the business or financial condition of the Company and any Subsidiary as Curaleaf Holdings may request, including, without limitation, any material information and documentation required by Curaleaf Holdings’ board of directors in order to comply with their fiduciary duties. |
The foregoing information shall be provided in a timely manner and sufficiently in advance to ensure timely compliance by Curaleaf Holdings of its continuous disclosure obligations under applicable Laws and the rules and regulations of any stock exchange on which the Curaleaf Holdings Subordinate Voting Shares are then traded.
| (h) | Access. In order to ensure compliance with the terms of this Agreement, the Company shall give Curaleaf Holdings and its Representatives, upon reasonable notice, reasonable access during normal business hours to its and its Subsidiaries’ books and records. |
| (i) | Audit. In order to ensure compliance with the terms of this Agreement, the Company shall permit, and cause each of its Subsidiaries to permit, Curaleaf Holdings and its Representatives to enter upon, inspect and audit each of their respective properties, assets, books and records from time to time, at reasonable times during normal business hours and upon reasonable notice; provided that any such inspection shall be at the sole expense of Curaleaf Holdings. |
| (j) | Investigations. In order to ensure compliance with the terms of this Agreement, the Company shall provide, and cause each of its Subsidiaries to provide, reasonable access upon reasonable notice during normal business hours, to the Company’s and its Subsidiaries’ executive management so that Curaleaf Holdings may conduct reasonable investigations relating to the information provided by the Company pursuant to this Agreement as well as to the internal controls and operations of the Company and its Subsidiaries. |
| (k) | Public Announcements. The Company shall not issue any press release or make any other public statement or disclosure concerning the Company or in connection with this Agreement without the prior written consent of Curaleaf Holdings. |
| (l) | Interpretation. Notwithstanding anything to the contrary contained herein, and for the avoidance of doubt, (i) with respect to (x) any Subsidiary that is not wholly-owned (directly or indirectly) by the Company, or (y) any Subsidiary that is managed (pursuant to Contract or otherwise) or controlled by any Person that is not the Company or a wholly-owned Subsidiary, then in such case it shall not be deemed a breach of this Agreement if the Company fails to cause such Subsidiary to take any action or refrain from taking any action, as required herein, so long as the Company has used commercially reasonable efforts to cause such Subsidiary to do so, and (ii) in the event that the prior consent of Curaleaf Holdings is required for the Company or any of its Subsidiaries to take any action pursuant to this Agreement, (x) Curaleaf Holdings will be deemed to have provided its prior consent if the board of directors of Curaleaf Holdings ratifies, or Curaleaf Holdings’ senior management retroactively approves (subject to compliance by such senior management with the internal policies and procedures of Curaleaf Holdings, including any delegation of authority in effect from time to time), the action within six (6) months of the date thereof, and (y) the Company will not be deemed to be in breach of this Agreement with respect to such action unless and until six (6) months have expired without such ratification. |
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| 3. | Representations and Warranties. |
| (a) | The Company represents and warrants to Curaleaf Holdings as follows and acknowledges that Curaleaf Holdings is relying on such representations and warranties in entering into this Agreement: |
| (i) | Formation and Organization of the Company. The Company is duly organized, validly existing and in good standing as a corporation under the laws of its jurisdiction of formation with the power to own or lease its property. |
| (ii) | Qualification. The Company has the requisite power and capacity to enter into this Agreement and to perform its obligations hereunder. |
| (iii) | Due Authorization. All requisite acts and proceedings have been done and taken by the Company to authorize the execution and delivery of this Agreement and the performance of the Company’s obligations hereunder. |
| (iv) | Validity of Agreement. The execution and delivery of this Agreement and the performance of the Company’s obligations hereunder do not, in any material respect, conflict with or cause a default under any indenture, mortgage, deed of trust, loan agreement or any other agreement or instrument to which the Company is a party or by which the Company or any of its property or assets is bound and do not conflict with nor result in any violation of any of the provisions of the Company’s Organizational Documents or any resolution of the Company’s board of directors or shareholders or any Laws of the Company’s jurisdiction of formation or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its property or assets. |
| (v) | Enforceability of Agreement. This Agreement constitutes and will constitute a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, liquidation, reorganization, moratorium or similar laws affecting the rights of the creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and the qualification that the enforceability of rights of indemnity, contribution and waiver and the ability to sever unenforceable terms may be limited by applicable Laws. |
| (b) | Curaleaf Holdings represents and warrants to the Company as follows and acknowledges that the Company is relying on such representations and warranties in entering into this Agreement: |
| (i) | Incorporation and Organization of Curaleaf Holdings. Curaleaf Holdings is duly organized, validly existing and in good standing as a corporation under the laws of its jurisdiction of formation with the corporate power to own or lease its property. |
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| (ii) | Qualification. Curaleaf Holdings has the requisite corporate power and capacity to enter into this Agreement and to perform its obligations hereunder. |
| (iii) | Due Authorization. All requisite corporate acts and proceedings have been done and taken by Curaleaf Holdings to authorize the execution and delivery of this Agreement and the performance of Curaleaf Holdings’ obligations hereunder. |
| (iv) | Validity of Agreement. The execution and delivery of this Agreement and the performance of Curaleaf Holdings’ obligations hereunder do not, in any material respect, conflict with or cause a default under any indenture, mortgage, deed of trust, loan agreement or any other agreement or instrument to which Curaleaf Holdings is a party or by which Curaleaf Holdings or any of its property or assets is bound and do not conflict with nor result in any violation of any of the provisions of Curaleaf Holdings’ Organizational Documents or any resolution of Curaleaf Holdings’ shareholders or directors or any laws of Curaleaf Holdings’ jurisdiction of incorporation or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Curaleaf Holdings or any of its property or assets. |
| (v) | Enforceability of Agreement. This Agreement constitutes a legal, valid and binding obligation of Curaleaf Holdings enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, liquidation, reorganization, moratorium or similar laws affecting the rights of the creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and the qualification that the enforceability of rights of indemnity, contribution and waiver and the ability to sever unenforceable terms may be limited by applicable Laws. |
| 4. | Miscellaneous. |
| (a) | Successors and Assigns. The rights under this Agreement may not be assigned in whole or in part by any Party without the prior written consent of the other Party. The terms and conditions of this Agreement inure to the benefit of and are binding upon the respective successors and permitted assignees of the Parties. Nothing in this Agreement, express or implied, is intended to confer upon any Person, other than the Parties, their Representatives or their respective successors and permitted assignees, any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided herein. Any assignment or attempted assignment of any rights under this Agreement in violation of this Section 4(a) shall be null and void, no such assignment shall be recorded on the Company’s books or records, and the purported assignee in any such assignment shall not be treated (and the purported assignor shall continue to be treated) as if the purported assignment never occurred. |
| (b) | Governing Law. This Agreement and any claim, controversy or dispute arising out of or related to this Agreement, the relationship of the Parties and/or the interpretation and enforcement of the rights and duties of the Parties, whether arising in contract, tort, equity or otherwise, shall be governed by and construed, enforced and governed in accordance with the domestic Laws of the State of Delaware (including in respect of the statute of limitations or other limitations period applicable to any such claim, controversy or dispute), without giving effect to any choice or conflict of Law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware. |
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| (c) | Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument and shall become effective when one or more such counterparts has been signed by each of the Parties and delivered to the other Parties. Counterparts may be delivered via electronic mail (including portable document format (PDF) or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com). |
| (d) | Headings, etc. The use of headings (e.g., Article, Section, etc.) in this Agreement is for reference only and is not to affect the interpretation of this Agreement. References in the Agreement to Article, Section etc., unless otherwise specified, shall mean the applicable Article, Section, etc. of this Agreement. |
| (e) | Notices. Except as otherwise provided in this Agreement or required by Law, any notice, demand or other communication required or permitted to be given pursuant to this Agreement shall have been sufficiently given for all purposes if, upon the earlier of actual receipt, or: (i) personal delivery to the Party to be notified; (ii) when sent, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next Business Day; (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) Business Day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next Business Day delivery, with written verification of receipt. All communications shall be sent to the respective Parties’ address specified below or to such other address as subsequently notified by written notice given in accordance with this Section 4(e). |
| (i) | If to the Company, at; | |
| 420 Lexington Avenue, Suite 2035 | ||
| New York, NY 10170-0052 | ||
| Attention: Matt Darin, Chief Executive Officer | ||
| Telephone: [Redacted – Personal Information] | ||
| Email: [Redacted – Personal Information] |
| (ii) | If to Curaleaf Holdings, at: | |
| 420 Lexington Avenue, Suite 2035 | ||
| New York, NY 10170-0052 | ||
| Attention: Matt Darin, Chief Executive Officer | ||
| Telephone: [Redacted – Personal Information] | ||
| Email: [Redacted – Personal Information] |
| (f) | Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of the Parties. No waiver of any of the provisions of this Agreement will constitute a waiver of any other provision (whether or not similar). A Party’s failure or delay in exercising any right under this Agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a Party from any other or further exercise of that right or the exercise of any other right. |
| (g) | Further Assurances. In case at any time after the date hereof any further action is necessary to carry out the purposes of this Agreement, each of the Parties will take such further action (including the execution and delivery of such further instruments and documents) as any other Party reasonably may request, all at the sole cost and expense of the requesting Party. |
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| (h) | Publicity. Each Party shall treat and hold as confidential all of the terms and conditions of this Agreement; provided, however, that each Party may disclose such information to such Party’s legal counsel, accountants, financial planners and/or other advisors on an as-needed basis so long as any such Person is bound by a confidentiality obligation with respect thereto. In addition, Curaleaf Holdings may disclose such information as necessary for Curaleaf Holdings to comply with applicable Law and the rules and regulations of any stock exchange upon which the Curaleaf Holdings Subordinate Voting Shares are traded. |
| (i) | Severability. If any term or provision of this Agreement is held to be invalid, illegal, or unenforceable under applicable Law in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. |
| (j) | Entire Agreement. This Agreement, together with the Organizational Documents of the Company, the Shareholders Agreement and all related exhibits and schedules, constitutes the entire agreement between the Parties with respect to the matters contemplated by this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties related to such matters. There are no representations, warranties, covenants, conditions or other agreements, express or implied, collateral, statutory or otherwise, between the Parties in connection with the subject matter of this Agreement, except as specifically set forth in this Agreement and the Shareholders Agreement. The Parties have not relied and are not relying on any other information, discussion or understanding in entering into this Agreement. |
| (k) | Injunctive Relief. The Parties hereby agree that, in the event of breach of this Agreement (including the documents attached hereto or referred to herein), damages would be difficult, if not impossible, to ascertain, that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, in addition to and without limiting any other remedy or right it may have, Curaleaf Holdings shall be entitled to an injunction or other equitable relief in any court of competent jurisdiction, without any necessity of proving damages or any requirement for the posting of a bond or other security, enjoining any such breach, and enforcing specifically the terms and provisions hereof. The Parties hereby waive any and all defenses they may have on the ground of lack of jurisdiction or competence of the court to grant such an injunction or other equitable relief. |
| (l) | Remedies Cumulative. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise. |
| (m) | Costs and Expenses. Except as otherwise expressly provided in this Agreement, each Party will bear its own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement. |
| (n) | Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any Law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. References in this Agreement to any gender include references to all genders, and references to the singular include references to the plural and vice versa. The words “include”, “includes” and “including” when used in this Agreement shall be deemed to be followed by the phrase “without limitation” or “but not limited to”. Unless the context otherwise requires, references in this Agreement to Sections, Schedules and Exhibits shall be deemed references to Sections of, and Schedules and Exhibits to, this Agreement. Unless the context otherwise requires, the words “hereof”, “hereby” and “herein” and words of similar meaning when used in this Agreement refer to this Agreement in its entirety and not to any particular Article, Section or provision of this Agreement. When calculating the period of time before which, within which or following which any act is to be done or any step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall not be calculated as the first day of such period of time. If the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day. All monetary figures or references to “$” in this Agreement shall be U.S. dollars unless otherwise specified. |
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| (o) | Waiver of Jury Trial. AS A SPECIFICALLY BARGAINED INDUCEMENT FOR EACH OF THE PARTIES TO ENTER INTO THIS AGREEMENT (WITH EACH PARTY HAVING HAD OPPORTUNITY TO CONSULT COUNSEL), EACH PARTY HERETO EXPRESSLY AND IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR LEGAL PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN, AND ANY LAWSUIT OR LEGAL PROCEEDING RELATING TO OR ARISING IN ANY WAY TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN SHALL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. |
| (p) | SUBMISSION TO JURISDICTION. THE PARTIES HEREBY AGREE THAT ANY SUIT, ACTION, OR PROCEEDING SEEKING TO ENFORCE ANY PROVISION OF, OR BASED ON ANY MATTER ARISING OUT OF OR IN CONNECTION WITH, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL BE BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE OR IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE (OR, IF SUCH COURT LACKS SUBJECT MATTER JURISDICTION, IN THE SUPERIOR COURT OF THE STATE OF DELAWARE), SO LONG AS ONE OF SUCH COURTS SHALL HAVE SUBJECT MATTER JURISDICTION OVER SUCH SUIT, ACTION, OR PROCEEDING, AND THAT ANY CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT SHALL BE DEEMED TO HAVE ARISEN FROM A TRANSACTION OF BUSINESS IN THE STATE OF DELAWARE. EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION, OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION, OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION, OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORM. SERVICE OF PROCESS, SUMMONS, NOTICE, OR OTHER DOCUMENT BY REGISTERED MAIL TO THE ADDRESS SET FORTH IN SECTION 4(E) SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION, OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. |
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| (q) | Acknowledgement. Each of the Parties acknowledges and agrees on its own behalf and on behalf of any of its Subsidiaries, that the terms and conditions of this Agreement do not violate public policy and agrees to waive on such Party’s own behalf and on behalf of any of such Party’s Subsidiaries illegality as a defense to contractual claims arising out of this Agreement or in any other document, instrument, or agreement entered into in connection with this Agreement. |
| (r) | Control of the Business. Notwithstanding anything in this Agreement to the contrary, Curaleaf Holdings shall not have, nor shall be deemed to have control, or the right to direct, the Company, the Subsidiaries or their operations. |
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF the Parties have executed this Agreement as of the date first written above.
| CURALEAF HOLDINGS, INC. | ||
| By: (signed) “Matthew Darin” | ||
| Name: Matthew Darin | ||
| Title: CEO | ||
| CURALEAF, INC. | ||
| By: (signed) “Ed Kremer” | ||
| Name: Ed Kremer | ||
| Title: Treasurer and Secretary | ||
[Signature Page – Protection Agreement]
Exhibit 99.8
CURALEAF HOLDINGS, INC.
and
LIFEBROOK INVESTMENTS LTD.
as Shareholders
and
Curaleaf, Inc.
as the Company
SHAREHOLDERS AGREEMENT
December 8, 2023
TABLE OF CONTENTS
| Article
1 INTERPRETATION |
||
| Section 1.1 | Defined Terms | 1 |
| Section 1.2 | References and Usage | 7 |
| Section 1.3 | Headings, etc. | 8 |
| Article
2 IMPLEMENTATION OF AGREEMENT AND TERM |
||
| Section 2.1 | Actions in Accordance with Agreement | 8 |
| Section 2.2 | Conflicts | 8 |
| Section 2.3 | Subsidiary Actions | 9 |
| Section 2.4 | Share Certificates or Instruments | 9 |
| Section 2.5 | Term of Agreement | 10 |
| Section 2.6 | Agreement to be Bound | 10 |
| Section 2.7 | Deemed Consent | 10 |
| Article
3 DIRECTORS AND SHAREHOLDERS |
||
| Section 3.1 | Directors of the Company | 11 |
| Section 3.2 | Directors’ Meetings | 13 |
| Section 3.3 | Removal of Affected Director | 13 |
| Section 3.4 | Right of Affected Director to Withdraw or Recuse | 14 |
| Section 3.5 | Board Observers | 14 |
| Section 3.6 | Shareholder Meetings | 15 |
| Section 3.7 | Exercise of Authority | 16 |
| Section 3.8 | Indemnification | 16 |
| Section 3.9 | Insurance | 16 |
| Section 3.10 | Protection Agreement | 16 |
| Article
4 BUSINESS AND MANAGEMENT OF THE COMPANY |
||
| Section 4.1 | Business of the Company | 16 |
| Section 4.2 | Management of the Company | 16 |
| Section 4.3 | Shareholder Approvals | 16 |
| Section 4.4 | Financial Statements | 17 |
| Section 4.5 | Books and Records | 17 |
| Article
5 FINANCING THE COMPANY |
||
| Section 5.1 | Additional Capital | 17 |
| Article
6 Distributions |
||
| Section 6.1 | Limitation on Distributions | 17 |
| Article
7 RESTRICTIONS ON TRANSFER |
||
| Section 7.1 | Restrictions on Transfer by Shareholders | 17 |
| Section 7.2 | Encumbering of Shares | 18 |
| Section 7.3 | Conversion Right | 18 |
( i )
| Section 7.4 | Call Right | 19 |
| Section 7.5 | Put Right | 20 |
| Section 7.6 | Roll-Up Shares | 21 |
| Section 7.7 | Compliance Put Right | 22 |
| Article
8 Procedure for Sale of Shares |
||
| Section 8.1 | Pre-Closing Covenants of the Parties | 25 |
| Section 8.2 | Conditions for the Benefit of the Purchaser | 25 |
| Section 8.3 | Conditions for the Benefit of the Seller | 26 |
| Section 8.4 | Closing Procedures | 26 |
| Section 8.5 | Non-Completion of Sale Transaction | 27 |
| Section 8.6 | As Is, Where Is | 27 |
| Article
9 REPRESENTATIONS AND WARRANTIES |
||
| Section 9.1 | Representations and Warranties of the Shareholders | 27 |
| Section 9.2 | Survival | 29 |
| Article
10 CONFIDENTIALITY |
||
| Section 10.1 | Confidentiality Obligation | 29 |
| Section 10.2 | Confidentiality Exceptions | 29 |
| Section 10.3 | Ownership of Confidential Information | 29 |
| Section 10.4 | Non-Disparagement | 29 |
| Section 10.5 | Continuing Obligation | 29 |
| Article
11 MISCELLANEOUS |
||
| Section 11.1 | Protection Agreement | 30 |
| Section 11.2 | Notices | 30 |
| Section 11.3 | Time of the Essence | 31 |
| Section 11.4 | Third Party Beneficiaries | 31 |
| Section 11.5 | No Agency or Partnership | 31 |
| Section 11.6 | Expenses | 31 |
| Section 11.7 | Amendments | 31 |
| Section 11.8 | Waiver | 31 |
| Section 11.9 | Entire Agreement | 31 |
| Section 11.10 | Further Assurances | 32 |
| Section 11.11 | Successors and Assigns | 32 |
| Section 11.12 | Severability | 32 |
| Section 11.13 | Governing Law | 32 |
| Section 11.14 | Submission to Jurisdiction | 32 |
| Section 11.15 | WAIVER OF JURY TRIAL | 33 |
| Section 11.16 | Independent Legal Advice | 33 |
| Section 11.17 | Injunctive Relief | 33 |
| Section 11.18 | Remedies Cumulative | 33 |
| Section 11.19 | Counterparts | 34 |
( ii )
| EXHIBITS | |
| EXHIBIT A Joinder Agreement | |
| EXHIBIT B Protection Agreement | |
| EXHIBIT C Form of Call Right Notice | |
| EXHIBIT D Form of Put Right Notice | |
| EXHIBIT E Form of Compliance Put Right Exercise Notice | |
( iii )
SHAREHOLDERS AGREEMENT
Shareholders Agreement dated December 8, 2023 (the “Agreement Date”) between Curaleaf Holdings, Inc., a corporation incorporated under the laws of the province of British Columbia, Canada (“Curaleaf Holdings”), Lifebrook Investments Ltd., an entity formed under the laws of England and Wales (the “Investor”), Curaleaf, Inc., a corporation incorporated under the laws of the State of Delaware, United States (the “Company”), and each other Person who after the Agreement Date become a Shareholder of the Company and becomes a party to this Agreement by executing a Joinder Agreement.
RECITALS
WHEREAS, Curaleaf Holdings and the Investor are the registered and beneficial owners of the Shares of the Company as set out below:
| Shareholder | Number and Class of Shares |
| Curaleaf Holdings, Inc. | 999 Class B Non-Voting Shares |
| Lifebrook Investments Ltd. | 1 Class A Voting Share |
WHEREAS, the Parties have entered into this Agreement to establish, among other things, the rights and obligations arising out of or in connection with the ownership of Shares.
NOW THEREFORE, in consideration of the foregoing premises, which are an integral part hereof, and in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Article 1
INTERPRETATION
Section 1.1 Defined Terms.
As used in this Agreement, the following terms have the following meanings:
“Act” means the Delaware General Corporation Law.
“Additional Board Criteria” means that the applicable Director is independent (as defined in the National Instrument 52-110 – Audit Committees (Canada)) of Curaleaf Holdings and the Company.
“Affected Director” has the meaning specified in Section 3.3(1).
“Affiliate” means, with respect to any Person, any other Person who, directly or indirectly (including through one or more intermediaries), controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control,” when used with respect to any specified Person, shall mean the power, direct or indirect, to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or partnership or other ownership interests, by contract or otherwise; provided, however, that a Person that, directly or indirectly, owns or controls over 50% or more of any voting securities, partnership, or other interests that provide the ability to cause the direction of the management and policies of such Person shall be deemed to control such other Person; and the terms “controlling” and “controlled” shall have correlative meanings.
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“Agreement” means this shareholders agreement and all exhibits and schedules attached to it, as each may be amended, modified, supplemented or restated from time to time.
“Agreement Date” has the meaning specified in the preamble to this Agreement.
“Attribution Party” has the meaning specified in Section 7.6(2).
“Auditor” means [Redacted], or such other firm of chartered professional accountants appointed as the auditors of the Company.
“Authorization” means, with respect to a Person, any order, permit, approval, consent, waiver, license, or similar authorization of any Governmental Authority having jurisdiction over the Person.
“Beneficial Ownership Limitation” has the meaning specified in Section 7.6(2).
“Beneficial Ownership Limitation Note” has the meaning specified in Section 7.6(3).
“Board” means the board of directors of the Company.
“Business” has the meaning specified in Section 4.1.
“Business Day” means any day of the year, other than a Saturday, Sunday, or day on which commercial banks in New York, NY are authorized or required to close.
“Bylaws” means the Bylaws of the Company, as may be amended and/or restated from time to time.
“Call Right” has the meaning specified in Section 7.4(1).
“Call Right Notice” has the meaning specified in Section 7.4(2).
“Call Shares” has the meaning specified in Section 7.4(1).
“Cannabis Laws” means any laws or regulations promulgated or enacted by state or local jurisdictions in which the Curaleaf USA Group has operations pertaining to cannabis cultivation, dispensing, sale, storage, manufacturing, distribution, transporting, testing or other commercial cannabis activities.
“Cannabis Regulatory Body” means all applicable state and local licensing authorities with authority under a Cannabis Law, as the case may be.
“Certificate” means the Certificate of Incorporation of the Company, as amended and restated from time to time.
“Chair” means the chairman of the Board.
“Change in Control” means, with respect to any Person, (i) the sale, transfer or other disposition of all or substantially all of the assets of such Person to a Third Party Entity, (ii) a merger or consolidation of such Person with a Third Party Entity, or (iii) a transfer of more than fifty percent (50%) of the outstanding voting equity of such Person to a Third Party Entity; provided that no financing transaction involving the issuance of additional securities of such Person to a Third Party Entity shall constitute a Change in Control unless so determined by the Board.
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“Class A Voting Share” means the share of Class A Voting Common Stock, $0.0001 par value per share, of the Company.
“Class B Non-Voting Shares” means the shares of Class B Non-Voting Common Stock, $0.0001 par value per share, of the Company.
“Class C Voting Shares” means the shares of Class C Voting Common Stock, $0.0001 par value per share, of the Company.
“Closing” with respect to a Sale Transaction means the consummation of the sale of the applicable Shares in such Sale Transaction.
“Closing Date” with respect to a Sale Transaction, means the date of Closing of the sale of the applicable Shares in such Sale Transaction.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Company” has the meaning specified in the preamble to this Agreement.
“Compliance Put Closing Date” has the meaning specified in Section 7.7(1).
“Compliance Put Closing Notice” has the meaning specified in Section 7.7(6).
“Compliance Put Exercise Notice” has the meaning specified in Section 7.7(4).
“Compliance Put Note” has the meaning specified in Section 7.7(2).
“Compliance Put Right” has the meaning specified in Section 7.7(1).
“Compliance Put Roll-Up Shares” has the meaning specified in Section 7.7(1).
”Compliance Put Roll-Up Share Value” has the meaning specified in Section 7.7(2).
“Compliance Put Shares” has the meaning specified in Section 7.7(1).
“Consideration Shares” has the meaning specified in the Subscription Agreement.
“Conversion” has the meaning specified in Section 7.3.
“Curaleaf Holdings” has the meaning specified in the preamble to this Agreement.
“Curaleaf Holdings Designated Directors” has the meaning specified in Section 3.1.
“Curaleaf USA Group” means the Company and its Subsidiaries.
“Director(s)” means the Persons who are elected as directors of the Company in accordance with this Agreement.
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“Distribution” means a distribution made by the Company to a Shareholder, whether in cash, property, or securities of the Company and whether by dividend, liquidating distribution or otherwise; provided, that none of the following shall be deemed to be a Distribution: (a) any redemption or repurchase by the Company from any Shareholder of any Shares; (b) any recapitalization or exchange of securities of the Company; or (c) any subdivision (by a split of Shares or otherwise) or any combination (by a reverse split of Shares or otherwise) of any outstanding Shares. “Distribute” when used as a verb shall have a correlative meaning.
“Exchange Rate” means the exchange rate for the conversion of a given currency into Canadian Dollars published by the Bank of Canada on the applicable date.
“Fiscal Year” means the twelve-month period commencing on January 1st of each year and ending December 31st of such year.
“GAAP” means the United States generally accepted accounting principles in effect from time to time.
“Governmental Authority” means any United States, Canadian or other applicable (i) governmental or public department, central bank, court, minister, governor-in-council, cabinet, commission, tribunal, board, bureau, agency, commissioner or instrumentality, whether international, multinational, national, federal, provincial, state, municipal, local, or other; (ii) subdivision or authority of any of the above; (iii) stock exchange; and (iv) quasi-governmental or private body exercising any regulatory, expropriation or taxing authority under or for the account of any of the above.
“Initial Investment” means USD$1,000,000, as further described in the Subscription Agreement.
“Investor” has the meaning specified in the preamble to this Agreement.
“Investor Designated Director” has the meaning specified in Section 3.1.
“Joinder Agreement” means the joinder agreement in form and substance attached hereto as Exhibit A.
“Jointly Designated Director” has the meaning specified in Section 3.1.
“Law” means any domestic or foreign, federal, state, provincial, or local statute, law, ordinance or code, or any written rules, regulations or administrative interpretations issued by any Governmental Authority pursuant to any of the foregoing, and any order, writ, injunction, directive, judgment or decree of a court of competent jurisdiction applicable to the Parties or their respective properties, assets, officers, directors, managers, employees or agents, as the case may be, with the exception of any of the foregoing as they relate to U.S. Federal Cannabis Laws.
“Lien” means (i) any mortgage, charge, pledge, hypothecation, security interest, assignment by way of security, encumbrance, lien (statutory or otherwise), hire purchase agreement, conditional sale agreement, deposit arrangement, title retention agreement or arrangement; (ii) any trust arrangement, (iii) any arrangement which creates a right of set-off outside the Ordinary Course of Business, (iv) any option, warrant, right or privilege capable of becoming a Transfer or (v) any agreement to grant any such rights or interests.
“Notice” has the meaning specified in Section 11.1.
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“Observers” has the meaning specified in Section 3.5(1).
“Order” has the meaning specified in Section 7.7.
“Ordinary Course of Business” means the ordinary course of business consistent with past custom and practice (including with respect to quantity and frequency).
“Organizational Documents” means the certificate of incorporation, amalgamation or amendment, bylaws, memorandum of association, operating agreement, partnership agreement, shareholders agreement, and/or similar constituting documents of a Person, in each case as amended and as applicable.
“Parties” means the Company and the Shareholders.
“Person” means an individual, partnership, limited partnership, limited liability partnership, corporation, limited liability company, unlimited liability company, joint stock company, trust, unincorporated association, joint venture or other entity or Governmental Authority, and pronouns have a similarly extended meaning.
“Protection Agreement” means that certain Protection Agreement entered into on the date hereof between the Company and Curaleaf Holdings, a copy of which is attached hereto as Exhibit C.
“Purchased Shares” means the Shares being Transferred pursuant to a Sale Transaction, including Shares being redeemed by the Company pursuant to Section 7.4 or Section 7.5 below.
“Purchaser” means any Person or Persons purchasing, acquiring, or in the case of the Company, redeeming Shares pursuant to a Sale Transaction.
“Put Right” has the meaning specified in Section 7.5(1).
“Put Right Notice” has the meaning specified in Section 7.5(2).
“Put Shares” has the meaning specified in Section 7.5(1).
“Removal Event” has the meaning specified in Section 3.3(1).
“Replacement Investor” has the meaning specified in Section 7.7(5).
“Required Board Criteria” means an individual who (i) meets the qualification requirements to serve as a director under applicable Laws and the rules of any stock exchange on which the Subordinate Voting Shares are then listed; (ii) is not subject to any of the “bad actor” disqualifying events described in Rule 506(d)(1)(i)-(viii) under the Securities Act; (iii) is not subject to any (A) criminal convictions, court injunction, or restraining orders; (B) order of a state or federal regulator; (C) SEC disciplinary order; (D) SEC cease-and-desist order; (E) SEC stop order; (F) suspension or expulsion from membership in a self-regulatory organization; or (G) U.S. Postal Service false representation orders; (iv) has not had a State and/or Local Cannabis License revoked by a Cannabis Regulatory Body; and (v) has not been determined to be unfit to have a management interest or role in a cannabis business by a Cannabis Regulatory Body.
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“Roll-Up Shares” has the meaning specified in Section 7.4(1), and shall be determined in accordance with Section 7.6(1).
“Sale Transaction” means any transaction of purchase and sale (including redemption) for Shares contemplated by the provisions of this Agreement.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Securities Laws” means, as applicable, the securities Laws, regulations, rules, rulings and orders in each of the provinces/states and territories of Canada and the United States, the applicable policy statements, notices, blanket rulings, orders and all other regulatory instruments of the securities regulators in each of the provinces/states and territories of Canada and the United States.
“Seller” means any Person or Persons selling or otherwise selling, Transferring or disposing of Shares pursuant to a Sale Transaction.
“Shareholders” means Curaleaf Holdings and the Investor and each other Person who after the Agreement Date becomes a Shareholder of the Company and becomes a party to this Agreement by executing a Joinder Agreement.
“Shares” means the Class B Non-Voting Shares and the Voting Shares, and includes (i) any securities of the Company into which such shares may be converted, reclassified, re-designated, subdivided, consolidated or otherwise changed, (ii) any securities of the Company or of any other Person received by the holders of such shares as a result of any merger, amalgamation, consolidation, reorganization, arrangement or other similar transaction involving the Company and one or more wholly-owned Subsidiary(ies), (iii) any securities of the Company which are received by any one or more Persons as a share dividend or distribution on or in respect of such shares, and (iv) any security, other instrument or right that is exercisable, exchangeable or convertible into, or evidences the right to acquire, any shares of the Company or any of the other above securities.
“State and/or Local Cannabis License” means any license required by a state or municipality in order to operate a cannabis business or to own or lease property used by a cannabis business within that state or municipality’s jurisdiction.
“Subordinate Voting Shares” means the subordinate voting shares in the capital of Curaleaf Holdings.
“Subscription Agreement” means that certain Subscription Agreement between the Investor and the Company, providing for the subscription for one (1) Class A Voting Share of the Company by the Investor, dated as of December 8, 2023.
“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association, or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; or (ii) if a limited liability company, partnership, association, or other business entity (other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof and for this purpose, a Person or Persons owns a majority ownership interest in such a business entity if such Person or Persons shall control any board of managers or similar of such business entity. The term “Subsidiary” shall include all Subsidiaries of any such Subsidiary.
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“Third Party Entity” means any other Person other than the Parties hereto, except (i) any legal entity (other than a natural person) that directly or indirectly controls, is controlled by, or is under common control with the Company or (ii) any entity with respect to which, following the transaction in question, a majority of the voting equity is owned directly or indirectly by the Shareholders of the Company prior to the transaction.
“Time of Closing” means 12:00 p.m. (Eastern Time) on the Closing Date of a Sale Transaction, or such other time as may be mutually agreed upon between the Seller and the Purchaser under such Sale Transaction.
“Transfer” means to, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any Shares owned by a Person or any interest (including a beneficial interest) in any Shares owned by a Person.
“TSX” means the Toronto Stock Exchange.
“Underlying Company Subject Matter” has the meaning specified in Section 3.3(1).
“U.S. Federal Cannabis Laws” means any U.S. Federal law, civil, criminal, or otherwise, that prohibits or penalizes, the advertising, cultivation, harvesting, production, distribution, sale and possession of marijuana (as defined in the Controlled Substances Act) and/or related substances or products containing or relating to the same, and related activities.
“Voting Shareholder” means any Shareholder holding Voting Shares.
“Voting Shares” means, collectively, the Class A Voting Share and the Class C Voting Shares.
“VWAP” means volume weighted average trading price.
Section 1.2 References and Usage.
Unless expressly stated otherwise, in this Agreement:
| (a) | reference to a gender includes all genders; | |
| (b) | the singular includes the plural and vice versa; | |
| (c) | “or” is used in the inclusive sense of “and/or”; | |
| (d) | “any” means “any and all”; | |
| (e) | the words “including”, “includes” and “include” mean “including (or includes or include) without limitation”; |
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| (f) | the phrase “the aggregate of”, “the total of”, “the sum of”, or a phrase of similar meaning means “the aggregate (or total or sum), without duplication, of”; | |
| (g) | $ or dollars refers to the United States currency unless otherwise specifically indicated; | |
| (h) | accounting terms not specifically defined in this Agreement are to be interpreted in accordance with GAAP; | |
| (i) | a statute includes all rules and regulations made under it, if and as amended, re-enacted or replaced from time to time; | |
| (j) | a Person includes its heirs, administrators, executors, legal representatives, predecessors, successors and permitted assigns; | |
| (k) | the term “notice” refers to oral or written notices except as otherwise specified; | |
| (l) | the term “Agreement” and any reference in this Agreement to this Agreement or any other agreement or document includes, and is a reference to, this Agreement or such other agreement or document as it may have been, or may from time to time be amended, restated, replaced, supplemented or novated and all schedules to it, except as otherwise provided in this Agreement; and | |
| (m) | whenever payments are to be made or an action is to be taken on a day which is not a Business Day, such payment will be required to be made or such action will be required to be taken on or not later than the next succeeding Business Day and in the computation of periods of time, unless otherwise stated, the word “from” means “from and excluding” and the words “to” and “until” each means “to and including”. |
Section 1.3 Headings, etc.
The use of headings (e.g., Article, Section, etc.) in this Agreement is for reference only and is not to affect the interpretation of this Agreement. References in the Agreement to Article, Section etc., unless otherwise specified, shall mean the applicable Article, Section, etc. of this Agreement.
Article 2
IMPLEMENTATION OF AGREEMENT AND TERM
Section 2.1 Actions in Accordance with Agreement.
Each Voting Shareholder will vote its Shares to give effect to this Agreement whether at a meeting of the Shareholders or by written consent of the Shareholders.
Section 2.2 Conflicts.
| (1) | In the event of any conflict between the provisions of this Agreement and the provisions of the Organizational Documents of the Company, the provisions of this Agreement will prevail to the extent permitted by Law. Each of the Shareholders and the Company will, upon request by any other Party, take such steps and proceedings as may be required to amend the Organizational Documents of the Company to resolve any such conflicts in favor of this Agreement, to the extent permitted by Law. |
| (2) | In the event of any conflict between this Agreement and the Organizational Documents of a Subsidiary, the provisions of this Agreement will prevail to the extent permitted by Law. Upon request by any other Party, the Company shall take or cause to be taken such steps and proceedings to amend the Organizational Documents of the applicable Subsidiary to resolve any such conflicts in favor of this Agreement, to the extent permitted by Law. |
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| (3) | In the event of any conflict between this Agreement and the Protection Agreement, the provisions of the Protection Agreement will prevail to the extent permitted by Law. Each of the Parties will, upon request by any other Party, take such steps and proceedings as may be required to amend this Agreement to resolve any such conflicts in favor of the Protection Agreement, to the extent permitted by Law. |
Section 2.3 Subsidiary Actions.
| (1) | The Company consents to this Agreement and agrees to be governed by its terms. The Company agrees to vote its shares or other equity interests in each of the Subsidiaries (as applicable) and to take all steps reasonably necessary and desirable to govern such Subsidiaries in accordance with the terms of this Agreement. The Company shall cause such Subsidiaries to act at all times in compliance with the provisions of this Agreement to the maximum extent permitted by Law. |
| (2) | Notwithstanding anything to the contrary contained herein, and for the avoidance of doubt, with respect to (i) any Subsidiary that is not wholly-owned (directly or indirectly) by the Company, or (ii) any Subsidiary that is managed (pursuant to Contract or otherwise) or controlled by any Person that is not the Company or a wholly-owned Subsidiary, then in such case it shall not be deemed a breach of this Agreement if the Company fails to cause such Subsidiary to take any action or refrain from taking any action, as required herein, so long as the Company has used commercially reasonable efforts to cause such Subsidiary to do so. |
Section 2.4 Share Certificates or Instruments.
| (1) | In addition to any legends required by applicable Securities Laws, all certificates, instruments or book entries representing Shares must bear a legend substantially in the following form: |
“The shares represented hereby are subject to a shareholders agreement among the Company and its shareholders, as may be amended from time to time, and such shares may not be pledged, sold or otherwise transferred except in accordance with the terms of that agreement. Any transfer made in contravention of such restrictions is null and void. A copy of the agreement is on file at the registered office of the Company and available for inspection on request and without charge.
THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, OR OTHERWISE DISPOSED EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER SUCH ACT AND LAWS OR (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREUNDER.”
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| (2) | Upon the execution of this Agreement and throughout the term of this Agreement, the Investor shall deposit any original share certificates representing its issued Shares with the secretary from time to time of the Company, duly executed for transfer in blank on the reverse of such share certificates, or, if the Company is uncertificated, a stock assignment duly executed in blank. The Investor acknowledges that in the event that it fails to execute or cause to be executed all such agreements and documents as may be necessary under this Agreement, the Protection Agreement, the Act, the Organizational Documents of the Company or otherwise to enable the completion of a Sale Transaction in accordance with the terms hereof, the secretary from time to time may execute and deliver all such agreements and documents (including all transfers, share certificates, resignations and releases) as may be necessary to permit such Sale Transaction to be completed as provided in this Agreement and reflected on the books of the Company (and for such purposes the Investor irrevocably constitutes and appoints the secretary from time to time as the true and lawful attorney for the Investor with full power of substitution in the name of and on behalf of the Investor, with no restriction or limitation in that regard). This power of attorney is irrevocable, is coupled with an interest, has been given for valuable consideration (the receipt and adequacy of which are acknowledged) and survives, and does not terminate upon, the legal or mental incapacity, death, bankruptcy, dissolution, winding-up or insolvency of the Investor. This power of attorney extends to and is binding upon the Investor’s successors and permitted assigns. This power of attorney supersedes any prior delegation of authority that conflicts with it. |
Section 2.5 Term of Agreement.
| (1) | Subject to Section 2.5(2), this Agreement terminates on the earlier of the date on which: |
| (a) | one Person acquires all of the issued and outstanding securities of the Company; or |
| (b) | this Agreement is terminated by written agreement of all Parties. |
| (2) | The obligations of the Parties in Article 10 continue in full force and effect after termination of this Agreement. Even if this Agreement is terminated, each Party is responsible for paying all amounts owing by it under this Agreement prior to the date of termination, including any amounts owing for Shares purchased under this Agreement. |
Section 2.6 Agreement to be Bound.
Each Person who becomes a Shareholder in accordance with the terms of this Agreement (including pursuant to a Transfer of Shares in accordance with the terms of this Agreement) must concurrently with, and as a condition to, becoming a Shareholder execute and deliver to the Company a Joinder Agreement, agreeing to be bound by this Agreement. Without limiting any other requirement under this Agreement, no Transfer shall be effective until such time as the Company receives a Joinder Agreement executed by the transferee.
Section 2.7 Deemed Consent.
The Investor (i) hereby consents to any Transfer of Shares made in accordance with this Agreement, and (ii) agrees that this consent satisfies any Investor consent requirement with respect to the Transfer of the Shares contained in this Agreement, the Protection Agreement and/or the Organizational Documents, as applicable, and that no further consent of the Investor is required under the Certificate or Bylaws or any other Organizational Document with respect to any such Transfer.
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Article 3
DIRECTORS AND SHAREHOLDERS
Section 3.1 Directors of the Company.
| (1) | Subject to this Section 3.1 and the Bylaws of the Company, the Board shall consist of four (4) Directors at all times. |
| (2) | Each Voting Shareholder agrees to vote, or cause to be voted, all Voting Shares owned by such Voting Shareholder, or over which such Voting Shareholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special meeting of the Shareholders at which an election of directors is held or pursuant to any written consent of the Shareholders, the following persons shall be elected to the Board: |
| (a) | For so long as Curaleaf Holdings is a Shareholder of the Company, two (2) Directors designated by Curaleaf Holdings (the “Curaleaf Holdings Designated Directors”), provided that such Curaleaf Holdings Designated Directors must meet the Required Board Criteria. The Curaleaf Holdings Designated Directors shall initially be Matthew Darin and Ed Kremer. |
| (b) | For so long as the Investor owns the Shares registered in its name as listed in the preamble hereof, one (1) Director designated by the Investor (the “Investor Designated Director”), subject to Section 3.1(3) below, provided that such Investor Designated Director must meet the Required Board Criteria and the Additional Board Criteria. The Investor Designated Director shall initially be [Redacted]. |
| (c) | One (1) Director designated unanimously by Curaleaf Holdings and the Investor (the “Jointly Designated Director”), provided that such Jointly Designated Director must meet the Required Board Criteria and the Additional Board Criteria. Such Jointly Designated Director shall initially be [Redacted]. |
| (3) | Any Investor Designated Director must be approved by Curaleaf Holdings prior to such Investor Designated Director’s election to the Board, such approval not to be unreasonably withheld. In the event that any Investor Designated Director proposed by the Investor is not approved by Curaleaf Holdings, the Investor shall be entitled to nominate another Person as the Investor Designated Director, provided that such designee is subject to the prior approval of Curaleaf Holdings, such approval not to be unreasonably withheld, and meets the Required Board Criteria and the Additional Board Criteria. |
| (4) | In the absence of any designation from the Person with the right to designate a Director as specified above, the Director previously designated by such Person and then serving shall be reelected if willing to serve unless such individual has been removed as provided herein, and otherwise such Board seat shall remain vacant until otherwise filled as provided above. Except as otherwise required by applicable Law, the Board shall not take any action, whether at a meeting or by written consent, during such time as any Curaleaf Holdings Designated Director seat remains vacant. |
| (5) | The Chair shall be a Curaleaf Holdings Designated Director selected by Curaleaf Holdings and shall initially be Matthew Darin. In the event of a tie vote among the Directors of the Company at any meeting of Directors, the Chair of the Board shall have a second or casting vote, as set forth in the Organizational Documents of the Company. |
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| (6) | Each Voting Shareholder also agrees to vote, or cause to be voted, all Voting Shares owned by such Voting Shareholder, or over which such Voting Shareholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that: |
| (a) | no Director elected pursuant to Section 3.1(2) of this Agreement may be removed from office unless (i) such removal is directed or approved by the Person(s) entitled under Section 3.1(2) to designate that Director, without limiting Section 3.1(3); or (ii) the Person(s) originally entitled to designate such Director pursuant to Section 3.1(2) is or are no longer so entitled to designate such Director; |
| (b) | any vacancies created by the resignation, removal or death of a Director elected pursuant to Section 3.1(2) shall be filled pursuant to the provisions of this Section 3.1; and |
| (c) | upon the request of any Person(s) entitled to designate a Director as provided in this Section 3.1 to remove such Director, such Director shall be removed. |
| (7) | All Voting Shareholders agree to execute any written consents required to perform the obligations of this Section 3.1, and the Company agrees at the request of any Person entitled to designate Directors to call a special meeting of Shareholders for the purpose of electing Directors. |
| (8) | A Director may resign at any time from the Board by delivering such Director’s written resignation to the Board. Any such resignation shall be effective upon receipt thereof unless it is specified to be effective at some other time or upon the occurrence of some other event. The Board’s acceptance of a resignation shall not be necessary to make it effective. |
| (9) | The Directors may determine from time to time the remuneration, if any, to be paid to a Director for his or her services as a director of the Company. Each Director is entitled to be reimbursed by the Company for reasonable out-of-pocket expenses incurred in attending Directors’ meetings, Board committee meetings, and Shareholders’ meetings and in performing other duties of Directors of the Company upon presentation of receipts evidencing such expenses. |
| (10) | No Shareholder shall have any liability as a result of designating a person for election as a Director for any act or omission by such designated person in his or her capacity as a Director of the Company, nor shall any Shareholder have any liability as a result of voting for any such designee in accordance with the provisions of this Agreement. |
| (11) | Each Voting Shareholder hereby constitutes and appoints as the proxies of the party and hereby grants a power of attorney to the Chair of the Company, with full power of substitution, with respect to the matters set forth herein, including, without limitation, votes regarding the size and composition of the Board pursuant to this Section 3.1, and hereby authorizes the Chair to represent and vote, if and only if the Voting Shareholder (i) fails to vote, or (ii) attempts to vote (whether by proxy, in person or by written consent), in a manner which is inconsistent with the terms of this Agreement, all of such Party’s Voting Shares in favor of the election of persons as members of the Board determined pursuant to and in accordance with the terms and provisions of this Agreement or to take any action reasonably necessary to effect this Agreement. Each of the proxy and power of attorney granted pursuant to this Section 3.1(11) is given in consideration of the agreements and covenants of the Company and the Parties in connection with the transactions contemplated by this Agreement and, as such, each is coupled with an interest and shall be irrevocable unless and until this Agreement terminates pursuant to Section 2.5 hereof. Each Voting Shareholder hereto hereby revokes any and all previous proxies or powers of attorney with respect to the Voting Shares and shall not hereafter, unless and until this Agreement terminates or expires pursuant to Section 2.5 hereof, purport to grant any other proxy or power of attorney with respect to any of the Voting Shares, deposit any of the Voting Shares into a voting trust or enter into any agreement (other than this Agreement), arrangement or understanding with any person, directly or indirectly, to vote or grant any proxy or give instructions with respect to the voting of any of the Voting Shares, in each case, with respect to any of the matters set forth herein. |
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Section 3.2 Directors’ Meetings.
| (1) | Meetings of the Directors shall be held at such time and place and in such manner as shall be set forth in the Bylaws of the Company and under applicable Law. It is the intention of the Company that meetings of the Directors of the Company shall be held on the same date and at the same place as the meetings of the board of directors of Curaleaf Holdings, immediately following such meetings. |
| (2) | At all meetings of the Board, a majority of Directors then in office shall constitute a quorum for the transaction of business; provided that any such quorum shall be required to include (the “Required Quorum”) (a) both Curaleaf Holdings Designated Directors and (b) the Investor Designated Director. |
| (3) | If a Required Quorum is not obtained at any meeting of the Board, a majority of the Directors present at such meeting may adjourn the meeting, subject to providing at least 24 hours’ notice to the remaining Directors of the time and place of such adjourned meeting. At such reconvened meeting, the quorum shall be at least two (2) Directors, which quorum must include both Curaleaf Holdings Designated Directors; provided that only matters contained in the original notice of meeting delivered pursuant to Bylaws of the Company and the Act shall be transacted at such adjourned meeting. |
Section 3.3 Removal of Affected Director.
| (1) | If, during any time while the Company or any Company Subsidiary holds any State and/or Local Cannabis License, any of the following occur, as determined in accordance with and subject to Section 3.4 below, the Voting Shareholders shall immediately take all such action and execute all such consents and documentation as may be required to immediately remove such Director (the “Affected Director”) from such position, and the Company and Non-Voting Shareholders shall fully cooperate in the taking of such action and execution of such documentation, upon which the Affected Director will cease to be a Director (each, a “Removal Event”): |
| (a) | a Director does not comply with the Required Board Criteria or, if applicable, the Additional Board Criteria; |
| (b) | a Director does not comply with State and/or Local Cannabis License requirements as reasonably determined by the Chair, including the failure to timely and thoroughly complete regulatory submissions and filings; |
| (c) | a Cannabis Regulatory Body issues a recommendation or advises the Company’s counsel that the Affected Director is unfit to have a management interest or role in a cannabis business; |
| (d) | a Cannabis Regulatory Body issues a recommendation against the issuance to the Company of a State and/or Local Cannabis License or revokes a State and/or Local Cannabis License, which recommendation cites the participation of the Affected Director as a material factor in the decision, or a Cannabis Regulatory Body conditions the issuance of a State and/or Local Cannabis License on the removal of the Affected Director as a Director of the Company; |
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| (e) | a Cannabis Regulatory Body advises the Company or any Subsidiary in writing, or it is otherwise determined by court order, that a decision on the Company’s or any Subsidiary’s State and/or Local Cannabis License is being delayed beyond one (1) year following the filing of the Company’s or such Subsidiary’s application for a State and/or Local Cannabis License, and the Company or such Subsidiary is advised before or after said date that the sole reason for such delay is the participation of or concerns about the Affected Director; |
| (f) | the Affected Director demonstrates a repeated failure to attend meetings with a Cannabis Regulatory Body as may be required for the Company’s or any Subsidiary’s business to be conducted. As used herein, repeated failure to attend shall be demonstrated by the failure to attend any meeting without good cause, or any two (2) meetings with or without cause, with any Cannabis Regulatory Body; or |
| (g) | the Affected Director fails to provide information to a Cannabis Regulatory Body which is requested by or required by such Cannabis Regulatory Body. |
Section 3.4 Right of Affected Director to Withdraw or Recuse.
Prior to the removal of an Affected Director described above, if the Removal Event is the result of the Affected Director’s involvement with a specific and distinct part of the Company or a Subsidiary (such as operation of a subset of the Company’s or Subsidiaries’ State and/or Local Cannabis Licenses) (in any case, “Underlying Company Subject Matter”), then, the Affected Director may withdraw or recuse themselves from such Underlying Company Subject Matter if the recusal or withdrawal is permitted by the applicable Cannabis Regulatory Body and has the same effect on the Company and/or applicable Subsidiary as it relates to the Underlying Company Subject Matter as the Affected Director being removed as a Director. Whether a Removal Event has occurred and, if so, whether the Affected Director may withdraw or recuse himself or herself from the Underlying Company Subject Matter instead of being removed as a Director, shall be determined by a majority of the Directors who are not Affected Directors; provided that before such Directors permit a recusal or withdrawal by the Affected Director from the Underlying Company Subject Matter, they must first receive advice of Company’s counsel that recusal or withdrawal will have the same effect on the Underlying Company Subject Matter as a removal from the Board would have. Such recusal or withdrawal shall be set forth in a written resolution of the Board. In the event a Removal Event occurs but does not affect the Underlying Company Subject Matter (which shall be determined by the acceptance or approval by the relevant Cannabis Regulatory Body of either (i) the Affected Director acting as a Director of the Company or (ii) the Underlying Company Subject Matter irrespective of the involvement of the Affected Director therewith), then the majority of the Directors who are not Affected Directors may waive the removal by the Voting Shareholders of the Affected Director.
Section 3.5 Board Observers.
| (1) | Curaleaf Holdings shall have the right to appoint any and all of the members of its board of directors who are not otherwise Directors as non-voting observers to the Company’s Board (“Observers”). The initial Observers are: |
| (a) | [Redacted]; |
| (b) | [Redacted]; |
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| (c) | [Redacted]; |
| (d) | [Redacted]; |
| (e) | [Redacted]; |
| (f) | [Redacted]; |
| (g) | [Redacted]; and |
| (h) | [Redacted]. |
| (2) | Each Observer shall be entitled to attend meetings of the Board and any committee of the Board, to receive all information provided to the members of the Board or its committees (including minutes of previous meetings of the Board or such committees, written consents of the Board, and any notice of meeting of the Board or such committees) at the time such information is provided to the Board, and to contribute to the discussions taking place at such meetings; provided that (i) the Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees; (ii) the Company may withhold information or materials from the Observer and exclude such Observer from any meeting or portion thereof if (as reasonably determined by the Board) access to such information or materials or attendance at such meeting (A) would adversely affect the attorney-client or litigation privilege between the Company and its counsel; (B) would reasonably be expected to result in a conflict of interest, (C) is required to be restricted by any agreement with another Person; or (D) would reasonably be expected to result in an adverse effect on the Company or its Subsidiaries; and (iii) the Observer shall be subject to the same obligations as Directors with respect to confidentiality, conflicts of interest, and misappropriation of corporate opportunities. |
| (3) | Each Observer shall be entitled to be reimbursed for reasonable out-of-pocket expenses incurred in attending Directors’ meetings and Board committee meetings of the Company upon presentation of receipts evidencing such expenses. |
Section 3.6 Shareholder Meetings.
| (1) | Meetings of Shareholders of the Company shall be held at such time and place, and in such manner, as shall be set forth in the Company’s Bylaws, and as required under applicable Law. |
| (2) | Curaleaf Holdings shall be entitled to receive notice of all Shareholder meetings, including the date, time and location of any meeting of Shareholders, which such notice shall include the details and a summary description of any matters to be deliberated at such Shareholder meeting. |
| (3) | Curaleaf Holdings shall be entitled to receive copies of all Shareholder consents. |
| (4) | Except as otherwise required by Law, the Directors, the President (if any), the Secretary (if any), the Assistant Secretary (if any), any lawyer for the Company, the auditor of the Company, Curaleaf Holdings, and any other Persons invited by the Directors, are entitled to attend any meeting of Shareholders; provided that, for the avoidance of doubt, any such Person (i) shall not be counted toward a quorum for such meeting, (ii) is not entitled to vote at the meeting unless such Person is a Voting Shareholder or proxy holder entitled to vote at such meeting, and (iii) shall be subject to confidentiality obligations with respect to such meeting, except as required by Law. |
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Section 3.7 Exercise of Authority.
Unless otherwise expressly required in this Agreement or applicable Law, all decisions, approvals, determinations and consents of the Directors or the Shareholders required by this Agreement shall be decided, approved, determined or consented to in the manner set forth in the Company’s Bylaws.
Section 3.8 Indemnification.
The Company will indemnify any Director to the fullest extent permitted by the Act. Nothing in this Agreement limits the right of any Director to claim indemnity apart from the provisions of this Agreement, if the Director is entitled to such indemnity.
Section 3.9 Insurance.
The Company may purchase and maintain insurance for the benefit of any person (or their heirs or legal personal representatives) who: (1) is or was a director, officer, manager, employee or agent of the Company or any Subsidiary; (2) is or was a director, officer, manager, employee or agent of a corporation or limited liability company at a time when such entity is or was an Affiliate of the Company or any Subsidiary; (3) at the request of the Company, is or was a director, officer, manager, employee or agent of a corporation, limited liability company partnership, trust, joint venture or other unincorporated entity; (4) at the request of the Company, holds or held a position equivalent to that of a director or officer of a corporation, limited liability company, partnership, trust, joint venture or other unincorporated entity; in each case, against any liability incurred by them as such director, officer, manager, employee or agent or person who holds or held such equivalent position.
Section 3.10 Protection Agreement.
No Party shall take any action or fail to take an action, or shall cause the Company to take any action or fail to take an action, of which the result is a contravention or breach of any term of the Protection Agreement.
Article 4
BUSINESS AND MANAGEMENT OF THE COMPANY
Section 4.1 Business of the Company.
The business of the Company will be to carry on any business or activity, and to have and exercise all of the powers, rights and privileges which a corporation incorporated pursuant to the Act may have and exercise (the “Business”). As of the Agreement Date, the Business of the Company is more particularly described as the cultivation, processing, distributing, marketing, and selling of cannabis and hemp and cannabis- and hemp-derived products.
Section 4.2 Management of the Company.
Subject to Section 4.3, the Directors will manage, or supervise the management of, the Business and affairs of the Company in accordance with this Agreement, the Protection Agreement, the Act and the Organizational Documents of the Company.
Section 4.3 Shareholder Approvals.
| (1) | In addition to any other approval required by Law, the Parties will not take any action or fail to take any action which could result in a violation or breach of any term of the Protection Agreement, including making a decision about, taking action on or implementing any of the activities listed in Section 2(b) of the Protection Agreement without Curaleaf Holdings’ prior written consent pursuant to Section 2(b) of the Protection Agreement. |
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| (2) | The approval required under Section 4.3(1) is in addition to any other approvals required by Law. In the event other Shareholder approvals are required to make a decision about, take action on or implement the Protection Agreement, each Voting Shareholder shall fully co-operate in and vote in favor of, and shall not dissent from, the proposed decision or action and to the maximum extent permitted by applicable Law (including waiving, or causing to be waived, any dissent rights in respect of such proposed decision or action). |
Section 4.4 Financial Statements.
Each Shareholder hereby waives its right (if any) to be provided with standalone audited financial statements of the Company so long as audited consolidated financial statements of Curaleaf Holdings are provided.
Section 4.5 Books and Records.
The Company will maintain accurate and complete books and records of all transactions and other matters as are usually entered into books of account in accordance with GAAP. Each Shareholder or its nominee or other authorized agent or representative is entitled to examine and make copies of such books and records during normal business hours on reasonable notice and at its own expense.
Article 5
FINANCING THE COMPANY
Section 5.1 Additional Capital.
Except as approved under Section 4.3, or as otherwise provided in this Agreement, the Shareholders have no obligation to (i) loan or advance any amount to the Company, (ii) otherwise finance the Company or any of its Subsidiaries, or (iii) secure or guarantee in any way the payment or performance of any indebtedness of the Company.
Article 6
Distributions
Section 6.1 Limitation on Distributions.
Notwithstanding any provision to the contrary in this Agreement, the Company shall not make any Distribution if such Distribution would violate the Protection Agreement, the Organizational Documents of the Company, the Act or other applicable Law.
Article 7
RESTRICTIONS ON TRANSFER
Section 7.1 Restrictions on Transfer by Shareholders.
| (1) | The Investor agrees that, notwithstanding anything to the contrary contained herein, the Investor will not, directly or indirectly (including through the Transfer of equity securities of the Investor), voluntarily or involuntarily, Transfer any of its Shares without the prior written consent of Curaleaf Holdings, which consent may be withheld or conditioned in its sole and absolute discretion. The Investor agrees to ensure that all equity holders in the Investor agree in writing to be bound by the provisions of this Section 7.1(1). For the avoidance of doubt, Curaleaf Holdings may Transfer its Shares without the consent of the Investor, provided that such Transfer complies with the remaining provisions of this Agreement. |
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| (2) | Without limiting Section 7.1(1) above, any Transfer of Shares by a Shareholder shall be in compliance with the terms of this Agreement, the Protection Agreement and the Organizational Documents of the Company. |
| (3) | Without limiting Section 7.1(1) above, no proposed Transfer to a proposed transferee in accordance with this Agreement shall be effective unless and until such transferee complies with Section 2.6. |
| (4) | To the maximum extent permitted by Law: |
| (a) | any purported Transfer of Shares in violation of this Agreement or the Protection Agreement shall be null and void; |
| (b) | the Company will not permit such a purported Transfer to be recorded on the share register of the Company maintained for the Shares, and the purported transferee in any such Transfer shall not be treated (and the purported transferor shall continue to be treated) as the owner of such Shares for all purposes of this Agreement; and |
| (c) | from the date of any purported Transfer of Shares in violation of this Agreement or the Protection Agreement, all rights attaching to such Shares and all rights attaching to any other Shares of the Shareholders involved with the purported Transfer are suspended and are inoperative until the purported Transfer is rescinded. During such time such Shares may not be voted and no dividends or other distributions may be paid or made on such Shares. These rights are in addition to and not in lieu of any other remedies. |
Section 7.2 Encumbering of Shares.
The Investor may not grant a Lien on any of its Shares without the prior written consent of Curaleaf Holdings in its sole and absolute discretion.
Section 7.3 Conversion Right.
| (1) | At any time and from time to time, Curaleaf Holdings shall have the right by written election to the Company to convert all or any portion of its Class B Non-Voting Shares (including any fraction of a Share) into Class C Voting Shares, on a one-for-one basis, along with the aggregate accrued or accumulated and unpaid dividends thereon, without the payment of additional consideration (the “Conversion”). |
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| (2) | To effectuate a Conversion under Section 7.3(1), Curaleaf Holdings shall (i) submit a written election to the Company that such holder elects to convert Class B Non-Voting Shares, the number of Class B Non-Voting Shares elected to be converted, and, if applicable, the name of Curaleaf Holdings’ nominee to receive the Class C Voting Shares, and (ii) surrender, along with such written election, to the Company (x) if the Company’s Shares are certificated, the certificate or certificates representing the Class B Non-Voting Shares being converted, duly assigned or endorsed for transfer to the Company if requested by the Company (or accompanied by duly executed stock powers relating thereto if requested by the Company) or, (y) if the stock certificate or certificates are lost, stolen or missing, accompanied by an affidavit of loss executed by Curaleaf Holdings, or (z) if the Company’s Shares are uncertificated, such duly executed written instrument or instruments of transfer as may be requested by the Company. The conversion of such Class B Non-Voting Shares hereunder shall be deemed effective as of the date of surrender of such Class B Non-Voting Shares certificate(s), or delivery of such affidavit of loss or instrument of transfer, as set forth above. Upon the receipt by the Company of a written election and the surrender of such certificate(s) (if applicable) and related materials, the Company shall as promptly as practicable (but in any event within five (5) Business Days after the effective date of Conversion) deliver to Curaleaf Holdings (A) a certificate or other instrument reflecting ownership in Curaleaf Holdings’ name (or the name Curaleaf Holdings’ nominee as stated in the written election) for the number of Class C Voting Shares (including any fractional share) to which Curaleaf Holdings shall be entitled upon Conversion of the applicable Class B Non-Voting Shares as calculated under Section 7.3(1) and, if applicable, (B) a certificate or other instrument reflecting ownership in Curaleaf Holdings’ name (or the name of Curaleaf Holdings’ nominee as stated in the written election) for the number of Class B Non-Voting Shares (including any fractional Class B Non-Voting Share) represented by the certificate(s) or instrument of ownership delivered to the Company for Conversion, but otherwise not elected to be converted under the written election. All Class C Voting Shares issued hereunder by the Company shall be duly and validly issued, fully paid and non-assessable, free and clear of all taxes, adverse claims, security interests, Liens, charges and encumbrances with respect to the issuance thereof. |
| (3) | All Class B Non-Voting Shares converted as provided in Section 7.3 shall no longer be deemed outstanding as of the effective time of the applicable Conversion, and all rights of Curaleaf Holdings with respect to such Class B Non-Voting Shares shall immediately cease and terminate as of such time. |
| (4) | Notwithstanding anything to the contrary contained herein, in the event of any Conversion pursuant to this Section 7.3 (a) such Conversion shall result in the automatic exercise of the Call Right and Put Right, (b) the closing of the Call Right and Put Right, and the resulting issuance of the Roll-Up Shares, shall occur simultaneously with the closing of the Conversion, in accordance with the provisions of this Article 7, and (c) each Party shall be deemed to have provided such notice, and each Party shall take such action, as shall be necessary to effectuate such simultaneous closings. |
Section 7.4 Call Right.
| (1) | During the term of this Agreement, the Company shall have the right (but not the obligation) (the “Call Right”) to acquire and redeem from the Investor and to require the Investor to sell, assign and Transfer to the Company all (but not less than all) of the Shares of the Company held by the Investor (the “Call Shares”), in consideration for the issuance by Curaleaf Holdings of Subordinate Voting Shares (the “Roll-Up Shares”) as set forth in, and subject to, Section 7.6, in all respects in compliance with applicable Laws and the rules of the TSX or any other stock exchange on which the Subordinate Voting Shares are then listed for trading. |
| (2) | The Call Right may be exercised by the Company at any time by delivering a Call Right exercise notice to the Investor and Curaleaf Holdings in the form attached as Exhibit C (a “Call Right Notice”), in accordance with Section 11.2, specifying that the Company wishes to exercise the Call Right and the desired date of such exercise, and requiring the Investor to sell, assign and Transfer the Call Shares to the Company on such date. Notwithstanding the foregoing, in the event that the Company exercises (or is deemed to have exercised) its Call Right upon a Conversion by Curaleaf Holdings, the Closing of the Call Right shall occur simultaneous with the closing of the Conversion. |
| (3) | Upon receipt of a Call Right Notice by the Investor, the Investor shall be obligated to sell, assign and Transfer to the Company the Call Shares, and Curaleaf Holdings shall be obligated to issue to the Investor the Roll-Up Shares in accordance with Section 7.6, in each case on the date set forth in the Call Right Notice. |
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| (4) | The Closing of the Sale Transaction in connection with the exercise of the Call Right shall be effectuated on the date set forth in the Call Right Notice, in accordance with the Closing procedures set forth in Article 8, subject to Section 1.2(m). |
Section 7.5 Put Right.
| (1) | Subject to the terms and conditions set out in this Agreement, from the earliest of: (i) the effective date of the Conversion by Curaleaf Holdings pursuant to Section 7.3; (ii) the announcement by Curaleaf Holdings of (x) any Change in Control of Curaleaf Holdings, (y) any transaction that would result in the Investor no longer owning all of the Voting Shares in the Company, or (z) the securities of Curaleaf Holdings becoming subject to a take-over bid or equivalent; (iii) any insolvency, bankruptcy or similar event involving Curaleaf Holdings or the Company that has not been vacated, discharged, stayed or bonded pending appeal within sixty (60) days from the entry thereof; (iv) the issuance of any financial statements by Curaleaf Holdings containing a going concern qualification for two (2) consecutive quarters; (v) the date that Curaleaf Holdings becomes listed on any nationally recognized stock exchange in the United States, which listing is not contingent on maintaining the corporate structure of the Company; or (vi) the five (5)-year anniversary of the Agreement Date, the Investor shall have the right (but not the obligation, subject to Section 7.3(4)) (the “Put Right”) to require the Company to purchase and redeem from the Investor all (but not less than all) of its Shares (the “Put Shares”) in consideration for the issuance of the Roll-Up Shares by Curaleaf Holdings, as set forth in, and subject to, Section 7.6, in all respects in compliance with the applicable Laws and the rules of the TSX or any other stock exchange on which the Subordinate Voting Shares are then listed for trading. |
| (2) | The Put Right may be exercised by the Investor by delivering a Put Right exercise notice to the Company and Curaleaf Holdings in the form attached as Exhibit D (a “Put Right Notice”), in accordance with Section 11.2. The Put Right Notice shall specify that the Investor wishes to exercise the Put Right and the date of such desired exercise, and requiring the Company to purchase and redeem the Put Shares from the Investor on such date, as specified in the Put Right Notice, subject to and in accordance with the requirements of Section 7.5(3) below. |
| (3) |
| (a) | In the event that the Investor exercises (or is deemed to have exercised) its Put Right pursuant to clause (i) of Section 7.5(1) above upon a Conversion by Curaleaf Holdings, the Closing of the Put Right shall occur simultaneous with the closing of the Conversion. |
| (b) | In the event that the Investor delivers a Put Right Notice pursuant to any of clauses (ii), (iii) or (v) of Section 7.5(1) above, the Closing of the Put Right shall occur on such date as is specified in the Put Right Notice; provided that such Closing Date shall be no earlier than five (5) Business Days following the date of delivery of the Put Right Notice. |
| (c) | In the event that the Investor exercises its Put Right prior to the effective date of Conversion pursuant to either clause (iv) or (vi) of Section 7.5(1) above, the Closing of the Put Right shall occur on such date as is specified in the Put Right Notice; provided that such Closing Date shall be no earlier than six (6) months after the date of delivery of the Put Right Notice. For the avoidance of doubt, the Closing Date of the Put Right Sale Transaction may occur on the five (5)-year anniversary of the Agreement Date even if a Conversion has not occurred by such date, so long as the Investor has delivered the Put Right Notice on or prior to the date that is four and one-half (4 ½) years from the Agreement Date. |
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| (4) | Upon receipt of a Put Right Notice, the Company shall be obligated to purchase and redeem from the Investor and the Investor shall be obligated to sell, assign and Transfer to the Company the Put Shares, and Curaleaf Holdings shall be obligated to issue to the Investor the Roll-Up Shares in accordance with Section 7.6. |
| (5) | The Closing of the Sale Transaction in connection with the exercise of the Put Right shall be effectuated on the applicable date set forth in the Put Right Notice, in accordance with this Section 7.5, Section 7.6 and the Closing procedures set forth in Article 8, subject to Section 1.2(m); provided, however, that notwithstanding anything to the contrary in this Agreement, in the event that the completion of a Sale Transaction following and in connection with the exercise of the Put Right by the Investor would jeopardize the listing of the Subordinate Voting Shares on the TSX or another nationally recognized stock exchange in the United States, the Company shall be entitled, in its sole and absolute discretion, to delay the Closing Date of such Sale Transaction until such time as it receives (a) a confirmation by the TSX or such other nationally recognized stock exchange in the United States to the effect that the listing of the Subordinate Voting Shares on the TSX or such other nationally recognized stock exchange in the United States would not be affected by such Sale Transaction, and (b) a confirmation by the Auditors that it will not affect the consolidation of Curaleaf Holdings and the Company for the purposes of Curaleaf Holdings’ consolidated financial statements. |
Section 7.6 Roll-Up Shares.
| (1) | For purposes of Section 7.4 and Section 7.5, the number of Roll-Up Shares issuable to the Investor pursuant to the Call Right or Put Right, as applicable, shall equal the greater of: |
| (a) | (i) (x) the amount of the Initial Investment (as converted based on the Exchange Rate on the Business Day prior to the Agreement Date) plus (y) the amount equal to [Redacted]% per annum on the Initial Investment for the time period between the Agreement Date and the date of issuance of such Roll-Up Shares (as converted based on the Exchange Rate on the Business Day prior to such date of issuance), divided by (ii) the VWAP of the Subordinate Voting Shares on the TSX for the five (5) trading days prior to such date of issuance of the Roll-Up Shares; and |
| (b) | (i) the number of Consideration Shares, plus (ii) (x) the amount equal to [Redacted]% per annum on the Initial Investment for the time period between the Agreement Date and the date of issuance of such Roll-Up Shares (as converted based on the Exchange Rate on the Business Day prior to such date of issuance) divided by (y) the VWAP of the Subordinate Voting Shares on the TSX for the five (5) trading days prior to the applicable date of issuance of the Roll-Up Shares; |
provided, however, that the issuance of the Subordinate Voting Shares to the Investor shall be made in compliance with the rules of the TSX.
| (2) | Notwithstanding anything to the contrary in this Agreement, the Investor shall not be entitled to receive Subordinate Voting Shares, and Curaleaf Holdings shall not issue to the Investor Subordinate Voting Shares, to the extent that, in the reasonable determination of Curaleaf Holdings, after giving effect to such issuance, the Investor (together with its Affiliates, and any other Persons acting together with the Investor or any of the Investor’s Affiliates (such Persons, the “Attribution Parties”)), would beneficially own, or have control or direction over, Subordinate Voting Shares in excess of the Beneficial Ownership Limitation. For purposes of the foregoing sentence, “beneficial ownership” shall have the meaning ascribed thereto in National Instrument 62-104 – Take Over Bids and Special Transactions (Canada) and “acting together” shall mean acting together to influence the outcome of a vote of security holders as such concept is used in the context of the definition of “materially affect control” in Part I of the TSX Company Manual. The “Beneficial Ownership Limitation” shall equal 19.99% of the number of Subordinate Voting Shares outstanding immediately after giving effect to the issuance of the Subordinate Voting Shares issuable hereunder. The provisions of this paragraph shall be construed and implemented so as to ensure strict compliance with the Beneficial Ownership Limitation, and the Parties acknowledge and agree that in no event shall any ambiguity with respect to this Section 7.6(2) be resolved in favor of the Investor if such interpretation would provide the Investor with beneficial ownership of Subordinate Voting Shares in excess of the Beneficial Ownership Limitation. The Parties further acknowledge and agree that this Section 7.6(2) shall be deemed amended or construed so as to correct this paragraph (or any portion of this paragraph) that may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Beneficial Ownership Limitation. |
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| (3) | In the event the issuance of Subordinate Voting Shares to the Investor as contemplated by this Agreement would have the effect of providing any Attribution Party with beneficial ownership, direction or control over Subordinate Voting Shares in excess of the Beneficial Ownership Limitation, Curaleaf Holdings shall only issue the number of Subordinate Voting Shares to the Investor required to ensure strict compliance with the Beneficial Ownership Limitation. In such event, the Company shall issue the Investor a promissory note, with all principal due at the maturity date of three (3) years from the issuance thereof, with simple interest equal to the prime interest rate then in effect, as reported by the Wall Street Journal, plus [Redacted] (the “Beneficial Ownership Limitation Note”). The principal under such Beneficial Ownership Limitation Note shall equal (i) the value of the aggregate Roll-Up Shares which would have been issuable to the Investor by Curaleaf Holdings pursuant to Section 7.6(1) but for the Beneficial Ownership Limitation, minus (ii) the value of the Subordinate Voting Shares actually issued to the Investor. For purposes of this Section 7.6(3), the value of the applicable Subordinate Voting Shares shall be calculated based on the VWAP of the Subordinate Voting Shares on the TSX for the five (5) trading days prior to the date of issuance of the portion of the Roll-Up Shares actually issued. |
| (4) | Within sixty (60) days after the end of each Fiscal Year, Curaleaf Holdings shall remit to the Investor a statement showing the calculation for the number of Roll-Up Shares issuable to the Investor as of December 31st of such Fiscal Year, assuming the Put Right or the Call Right had been exercised (or deemed exercised) by the Investor or the Company, as applicable, effective as of such date. |
Section 7.7 Compliance Put Right.
(1)
| (a) | Without limiting and in addition to the provisions of Section 7.5, if at any time the Investor receives a bona fide written order, writ, injunction, directive, judgment or decree of a Governmental Authority applicable to the Investor (collectively, an “Order”), and such Order prohibits the Investor from holding the Shares or would otherwise cause the Investor to be in violation of applicable Law as a result of the Investor holding the Shares, (i) the Investor shall promptly provide the Company with a copy of such Order, and (ii) the Investor shall have the right (the “Compliance Put Right”) to require the Company to purchase and redeem from the Investor all (but not less than all) of its Shares (the “Compliance Put Shares”) in consideration for the issuance by Curaleaf Holdings to the Investor of the Compliance Put Roll-Up Shares on the Closing Date of the Compliance Put Right (the “Compliance Put Closing Date”), subject to the remaining provisions of this Section 7.7. |
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| (b) | The “Compliance Put Roll-Up Shares” shall mean the number of Subordinate Voting Shares equal to the number of Roll-Up Shares calculated in accordance with the provisions of Section 7.6(1). |
| (c) | For the avoidance of doubt, the obligations of Curaleaf Holdings to issue the Compliance Put Roll-Up Shares are subject to the same limitations and restrictions related to the Beneficial Ownership Limitation as are set forth in Section 7.6(2) and Section 7.6(3), which includes without limitation the right of the Company to issue a Beneficial Ownership Limitation Note in lieu of Curaleaf Holdings’ issuance of some or all of the Compliance Put Roll-Up Shares, to the extent set forth in Section 7.6(2) and Section 7.6(3). |
| (2) | Notwithstanding the foregoing, solely in the event that the Investor receives an Order that prohibits the Investor from receiving or holding the Compliance Put Roll-Up Shares or would otherwise cause the Investor to be in violation of applicable Law as a result of the Investor holding the Compliance Put Roll-Up Shares, then (x) the Investor shall promptly provide the Company with a copy of such Order, and (y) in lieu of causing Curaleaf Holdings to issue the Compliance Put Roll-Up Shares, the Company shall pay the Investor (or cause the payment of) the Compliance Put Roll-Up Share Value. Such payment shall be made on the Compliance Put Closing Date, at the Company’s sole election, either (i) in cash, or (ii) by issuance of a promissory note in the principal amount equal to the Compliance Put Roll-Up Share Value, with all principal due at the maturity date of three (3) years from the issuance thereof, with simple interest equal to the prime interest rate then in effect, as reported by the Wall Street Journal, plus [Redacted] (the “Compliance Put Note”). |
| (3) | For the avoidance of doubt, for purposes of Section 7.7(2) above, the “Compliance Put Roll-Up Share Value” shall equal the greater of: |
| (a) | (i) the amount of the Initial Investment, plus (ii) the amount equal to [Redacted]% per annum on the Initial Investment for the time period between the Agreement Date and the Compliance Put Closing Date; and |
| (b) | (i) (x) the number of Consideration Shares, divided by (y) the VWAP of the Subordinate Voting Shares on the TSX for the five (5) trading days prior to the Compliance Put Closing Date, plus (ii) the amount equal to [Redacted]% per annum on the Initial Investment for the time period between the Agreement Date and the Compliance Put Closing Date. |
| (4) | The Compliance Put Right may be exercised by the Investor by delivering a Compliance Put Right exercise notice to the Company and Curaleaf Holdings substantially in the form attached as Exhibit E (a “Compliance Put Exercise Notice”), in accordance with Section 11.2. The Compliance Put Exercise Notice shall specify that the Investor wishes to exercise the Compliance Put Right, and shall include reasonable detail regarding the bona fide compliance reasons for such desired exercise. In the event that the Investor is required under applicable Law to receive the Compliance Put Roll-Up Share Value in lieu of the Compliance Put Roll-Up Shares, as described in Section 7.7(2) above, then the Investor shall specify in the Compliance Put Exercise Notice reasonable detail regarding the bona fide compliance reasons for such requirement. The Investor shall provide all such supporting documentation and information related to such compliance concerns as the Company and/or Curaleaf Holdings may reasonably request. |
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| (5) | Upon receipt of the Compliance Put Exercise Notice, without limiting the Company’s and Curaleaf Holdings’ rights as set forth in Section 7.7(8), the Company and Curaleaf Holdings shall have the right to delay the Compliance Put Closing in order to identify, and obtain regulatory approval of, a replacement investor (the “Replacement Investor”) to hold the Compliance Put Shares in lieu of the Investor, subject to and in compliance with applicable Law. In such event, the Company agrees to use best efforts to identify a Replacement Investor candidate and to file an application or applications with the applicable Governmental Authorities (as determined by the Company) for regulatory approval of such Replacement Investor candidate within sixty (60) days of the Company’s receipt of the Compliance Put Exercise Notice. In the event that any Governmental Authority notifies the Company in writing of a final rejection of any Replacement Investor candidate, the Company shall have the right to identify, and seek regulatory approval for, one or more other Replacement Investor candidates. In such event, the Company shall use best efforts to identify another Replacement Investor candidate and file an application or applications with the applicable Governmental Authorities (as determined by the Company) for regulatory approval of such Replacement Investor candidate within sixty (60) days of the Company’s receipt of written notice of a final rejection of the previous Replacement Investor candidate. In the event that the Company does not receive regulatory approval of any Replacement Investor candidate from all applicable Governmental Authorities and the Compliance Put Closing does not occur within one hundred eighty (180) days of the Company’s receipt of the Compliance Put Exercise Notice delivered in accordance with this Section 7.7 (the “Replacement Investor Deadline”), the Company shall indemnify and hold the Investor harmless from all regulatory fines and other direct costs actually incurred by the Investor and its Affiliates as a direct result of the Company’s failure to identify and obtain regulatory approval for a Replacement Investor prior to the Replacement Investor Deadline. |
| (6) | Upon the Company’s receipt of regulatory approval of any Replacement Investor candidate from all applicable Governmental Authorities, the Company shall send written notice to the Investor of such approval within five (5) Business Days of receipt thereof (the “Compliance Put Closing Notice”). The Compliance Put Closing Notice shall include the Company’s proposed Compliance Put Closing Date, which shall be no later than fifteen (15) Business Days from the date of such Compliance Put Closing Notice. In the event that the Investor is required under applicable Law to receive the Compliance Put Roll-Up Share Value in lieu of Compliance Put Roll-Up Shares, the Company shall specify in the Compliance Put Closing Notice whether it elects to pay such Compliance Put Roll-Up Share Value in cash or by a Compliance Put Note. |
| (7) | At the Compliance Put Closing, the Company shall be obligated to purchase and redeem from the Investor and the Investor shall be obligated to sell, assign and Transfer to the Company the Compliance Put Shares, and the Company shall be obligated to, as applicable, (i) cause Curaleaf Holdings to issue to the Investor the Compliance Put Roll-Up Shares, (ii) pay or cause to be paid to the Investor the Compliance Put Roll-Up Share Value in cash, or (iii) issue to the Investor the Compliance Put Note, in each case in accordance with and subject to the terms of this Section 7.7. Notwithstanding the foregoing, at the Compliance Put Closing, the Company may, in lieu of redeeming the Compliance Put Shares, direct the Investor to Transfer the Compliance Put Shares to the Replacement Investor, using such reasonable assignment documentation as shall be provided by the Company. |
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| (8) | The Closing of the Sale Transaction in connection with the exercise of the Compliance Put Right shall be effectuated on the applicable Closing Date set forth in the Compliance Put Closing Notice, in accordance with this Section 7.7 and the Closing procedures set forth in Article 8, subject to Section 1.2(m); provided, however, that notwithstanding anything to the contrary contained in this Agreement, in the event that the Closing of the Compliance Put Right on such Closing Date would jeopardize the listing of the Subordinate Voting Shares on the TSX or another nationally recognized stock exchange in the United States, the Company shall be entitled, in its sole and absolute discretion, to further delay the Closing Date until such time as it receives (a) a confirmation by the TSX or such other nationally recognized stock exchange in the United States to the effect that the listing of the Subordinate Voting Shares on the TSX or such other nationally recognized stock exchange in the United States would not be affected by such Sale Transaction, and (b) a confirmation by the Auditors that it will not affect the consolidation of Curaleaf Holdings and the Company for the purposes of Curaleaf Holdings’ consolidated financial statements. |
Article 8
Procedure for Sale of Shares
Section 8.1 Pre-Closing Covenants of the Parties.
| (1) | From the date that a Sale Transaction is agreed to, until the Closing Date for the applicable Sale Transaction, the Company will not, and the Shareholders will not permit the Company to, do anything that is not in the Ordinary Course of Business; provided that the foregoing limitation shall not apply during the notice period applicable to a Put Right Sale Transaction that is effectuated pursuant to Section 7.5(1)(ii), Section 7.5(1)(iii), Section 7.5(1)(v) or Section 7.5(1)(vi) or during the notice period(s) applicable to a Compliance Put Right Sale Transaction that is effectuated pursuant to Section 7.7. |
| (2) | Subject to Section 8.1(4), each party to a Sale Transaction will take all actions that are within its power to control, and use its commercially reasonable efforts to cause other actions to be taken which are not within its power to control, to ensure compliance with the conditions in Section 8.2 and Section 8.3. |
| (3) | Each Seller to a Sale Transaction will take all necessary steps and corporate proceedings, if applicable, to permit good title to the Purchased Shares to be duly and validly Transferred and assigned to the Purchaser at the Time of Closing, free of all Liens other than the restrictions on Transfer, if any, contained in the Company’s Organizational Documents, this Agreement and the Protection Agreement (as applicable). |
| (4) | Each party to a Sale Transaction will use its commercially reasonable efforts to make or give, or cause to be made or given, all filings with and notifications to any Governmental Authority and obtain or cause to be obtained all Authorizations, necessary or advisable in order to complete the Sale Transaction. However, no party to a Sale Transaction is required to take any steps or action that would, in the sole discretion of that party, affect its right to own, use or exploit any of its assets or carry on its business. |
Section 8.2 Conditions for the Benefit of the Purchaser.
| (1) | The completion of a Sale Transaction is subject to the following conditions to be fulfilled or performed, on or before the Closing Date, which conditions are for the exclusive benefit of the Purchaser and may be waived, in whole or in part, by the Purchaser in its sole discretion: |
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| (a) | the Seller must represent and warrant to the Purchaser that (i) on the Closing Date the Purchased Shares are owned by the Seller as the registered and beneficial owner with good title, free and clear of all Liens other than those restrictions on Transfer, if any, contained in the Organizational Documents of the Company, this Agreement and the Protection Agreement (as applicable), and (ii) upon completion of the Sale Transaction, the Purchaser will have good and valid title to the Purchased Shares sold by the Seller (or the Purchased Shares shall be cancelled, in the case of redemption), free and clear of all Liens other than (A) those restrictions on Transfer, if any, contained in the Organizational Documents of the Company, this Agreement and the Protection Agreement (as applicable), and (B) Liens granted by the Purchaser; |
| (b) | all filings, notices and Authorizations necessary to complete the Sale Transaction must be made, given or obtained; and |
| (c) | the Closing of the Sale Transaction will not result in the violation of any Law. |
Section 8.3 Conditions for the Benefit of the Seller.
The completion of a Sale Transaction is further subject to the following conditions to be fulfilled or performed on or before the Closing Date, which conditions are for the exclusive benefit of the Seller and may be waived, in whole or in part, by the Seller in its sole discretion:
| (a) | all filings, notices and Authorizations necessary to complete the Sale Transaction must be made, given or obtained; and |
| (b) | the Closing of the Sale Transaction will not result in the violation of any Law. |
Section 8.4 Closing Procedures.
| (1) | The Closing of a Sale Transaction will take place through the electronic exchange of documents, at the Time of Closing on the Closing Date or at such other place, on such other date and at such other time as the parties to the Sale Transaction may agree to in writing. |
| (2) | Subject to satisfaction or waiver by the relevant party to the Sale Transaction of the conditions of Closing, at the Closing of the Sale Transaction: |
| (a) | The Seller will assign and Transfer title and deliver actual possession of the Purchased Shares to the Purchaser and endorse the share certificates or other instrument representing the Purchased Shares for Transfer to the Purchaser or for cancellation by the Purchaser in the case of redemption by the Company, as the case may be; |
| (b) | The Purchaser will pay or satisfy the purchase price for the Purchased Shares by delivering to the Seller: (i) if the consideration for the Purchased Shares is cash, i.e. pursuant to Section 7.7(2), a certified check, bank draft or wire transfer of immediately available funds in the full amount of the purchase price for the Purchased Shares, (ii) if the consideration for the Purchased Shares is the Roll-Up Shares, i.e. pursuant to Section 7.4 or Section 7.5, by causing the issuance of the Roll-Up Shares and the registration and issuance of such Roll-Up Shares in the name of the Seller, and/or issuing the Beneficial Ownership Limitation Note, if applicable, as contemplated by this Agreement, (iii) if the consideration for the Purchased Shares is the Compliance Put Roll-Up Shares, i.e. pursuant to Section 7.7(1), by causing the issuance of the Compliance Put Roll-Up Shares and the registration and issuance of such Compliance Put Roll-Up Shares in the name of the Seller, and/or issuing the Beneficial Ownership Limitation Note, if applicable, as contemplated by this Agreement, (iv) if the consideration for the Purchased Shares is the Compliance Put Note, i.e. pursuant to Section 7.7(2), by issuing the Compliance Put Note as contemplated by this Agreement, or (v) if the consideration for the Purchased Shares is other assets or securities, by delivering such assets or securities to the Seller; |
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| (c) | The Seller will deliver releases to the Company and the other Shareholder(s), releasing all claims that the Seller may have against the Company, the other Shareholder(s) and their Affiliates with respect to any matter or thing up to and including the Time of Closing, except for any claims which might arise out of the Sale Transaction, in the form satisfactory to the Company and the other Shareholder(s), acting reasonably. |
| (d) | If the Investor is the Seller, all indebtedness owing by the Investor to the Company or the other Shareholder will be repaid on or prior to the Time of Closing. If the Seller fails to repay such indebtedness, the Purchaser will deduct the amount of such indebtedness from the purchase price and the amount of the purchase price payable to the Investor will be reduced accordingly. |
Section 8.5 Non-Completion of Sale Transaction.
In addition to and without limiting any remedy that may be available at Law to the Seller, in the event that the Purchaser fails to complete the Sale Transaction in accordance with the requirements of this Agreement, and such failure does not result, directly or indirectly, from any fault or breach of the Seller, the Seller may, at its option, by written notice to the Purchaser, Company and other Shareholder(s), terminate all of its obligations relating to the Sale Transaction and, upon the giving of such notice, such obligations will be terminated without prejudice to the continued effectiveness of this Agreement.
Section 8.6 As Is, Where Is.
Except for any representations and certifications to be provided pursuant to this Article 8 and any post-Closing covenants expressly set forth in this Agreement, any Sale Transaction contemplated by this Agreement shall be completed on an “as is, where is” basis as of the relevant Closing Date, and without any representation, warranties, covenants or undertakings of any nature whatsoever, whether express or implied, as to any matter, condition or thing pertaining to or affecting the relevant party’s assets or business, or any information or documentation disclosed to the parties to the Sale Transaction.
Article 9
REPRESENTATIONS AND WARRANTIES
Section 9.1 Representations and Warranties of the Shareholders.
Each Shareholder represents and warrants as follows and acknowledges and confirms that the other Parties are relying on such representations and warranties in entering into this Agreement:
| (a) | Qualification. It is a corporation incorporated and existing under the laws of its jurisdiction of incorporation and has the corporate power to enter into and perform its obligations under this Agreement. |
| (b) | Authorization. The execution and delivery of and performance by it of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate or other action on the part of the Shareholder. |
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| (c) | Validity of Agreement. The execution and delivery of and performance by the Shareholder of this Agreement: |
| (i) | will not (or would not with the giving of notice, the lapse of time or the happening of any other event or condition) result in a breach or violation of or a conflict with, or allow any other Person to exercise any rights under, any of the terms or provisions of the Shareholder’s Organizational Documents; |
| (ii) | will not (or would not with the giving of notice, the lapse of time or the happening of any other event or condition) result in a breach or violation of or a conflict with, or allow any other Person to exercise any rights under any contracts or instruments to which the Shareholder is a party or pursuant to which any of the Shareholder’s assets may be affected; |
| (iii) | will not result in a breach of, or cause the termination or revocation of, any authorization held by the Shareholder or necessary to the ownership of Shares by the Shareholder; and |
| (iv) | will not result in the violation of any Law. |
| (d) | Authorizations and Consents. There is no requirement on the part of the Shareholder to make any filing with or give any notice to any Governmental Authority, or obtain any Authorization, in connection with the completion of the transactions contemplated by this Agreement, except for filings and notifications required by applicable Securities Laws and the rules or regulations of any stock exchange on which the securities of Curaleaf Holdings are posted for trading, or pursuant to Cannabis Laws or required by Cannabis Regulatory Bodies. There is no requirement on the part of the Shareholder to obtain any consent, approval or waiver of any Person under any contracts or instruments to which the Shareholder is a party or pursuant to which any of the Shareholder’s assets may be affected in connection with the completion of the transactions contemplated by this Agreement, other than consents, approvals or waivers required by applicable Securities Laws and the rules or regulations of any stock exchange on which the securities of Curaleaf Holdings are posted for trading, and pursuant to Cannabis Laws or by Cannabis Regulatory Bodies. |
| (e) | Execution and Binding Obligation. This Agreement has been duly executed and delivered by the Shareholder and constitutes a legal, valid and binding agreement of each of the Shareholder enforceable against it in accordance with its terms subject only to any limitation under applicable Laws relating to (i) bankruptcy, winding-up, insolvency, arrangement and other Laws of general application affecting the enforcement of creditors’ rights, and (ii) the discretion that a court may exercise in the granting of equitable remedies such as specific performance and injunction. |
| (f) | Title to Shares. The Shares set out opposite the Shareholder’s name in the preamble of this Agreement are owned by the Shareholder as the registered and beneficial owner with good title, free and clear of all Liens, other than those restrictions on Transfer, if any, contained in the Organizational Documents of the Company, this Agreement and the Protection Agreement (as applicable). |
| (g) | Protection Agreement. Each Shareholder has reviewed the Protection Agreement and acknowledges and agrees to the restrictions set forth in the Protection Agreement. |
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Section 9.2 Survival.
The representations, warranties and covenants of the Parties contained in this Article are given as of the Agreement Date and remain in full force and effect during the term of the Agreement until such Shareholder is no longer a party to this Agreement.
Article 10
CONFIDENTIALITY
Section 10.1 Confidentiality Obligation.
The Shareholders will keep all Confidential Information confidential and will not disclose any Confidential Information to any Person or use any Confidential Information except as permitted by this Agreement or as required by Law, including pursuant to Canadian or US securities laws or any recognized stock exchange on which Curaleaf Holdings may be listed from time to time. The Shareholders may disclose Confidential Information to their respective employees and advisors but only to the extent that they need to know the Confidential Information, they have been informed of the confidential nature of the Confidential Information and they agree to be bound by and act in accordance with this Section 10.1. “Confidential Information” means all information relating to the business, operations, assets, liabilities, plans, prospects and other affairs of the Company, its Subsidiaries, the Shareholders, and their officers, directors and managers, this Agreement, the Protection Agreement or the transactions contemplated by this Agreement, in whatever form.
Section 10.2 Confidentiality Exceptions.
The restrictions set out in Section 10.1 do not apply to Confidential Information or any part of it that:
| (a) | is or becomes generally available to the public; |
| (b) | is required to be disclosed by Law; or |
| (c) | is permitted in writing to be disclosed by the Person who owns such Confidential Information. |
Section 10.3 Ownership of Confidential Information.
To the extent that any Confidential Information is owned by a Party it will remain the exclusive property of that Party. Nothing in this Agreement or in the disclosure of any Confidential Information will confer any interest in the Confidential Information on a receiving party.
Section 10.4 Non-Disparagement.
The Parties shall not, whether directly or indirectly, disparage or make any statement or publication that is intended to or has the effect of disparaging, impugning or injuring the reputation or interests of the Company, its Subsidiaries or Affiliates, the Business, or any other Party to this Agreement, as well as their respective affairs, products, services, shareholders, officers or employees, without limiting any statement or publication that is required by Law, including pursuant to Canadian or US securities laws or any recognized stock exchange on which Curaleaf Holdings may be listed from time to time.
Section 10.5 Continuing Obligation.
Each Party continues to be bound by the applicable provisions set out in this Article 10 even after it ceases to be a party to this Agreement.
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Article 11
MISCELLANEOUS
Section 11.1 Protection Agreement.
Except as required by applicable Law, any action taken by the Company, a Shareholder, the Board, or any officer of the Company that constitutes a material breach of the Protection Agreement in accordance with its terms, shall be considered null and void, and the Company and all Shareholders agree that (1) neither the Company nor any Shareholder has authority to take any such action and (2) notwithstanding anything to the contrary in this Agreement, this Section 11.1 shall be for the benefit of and enforceable solely by Curaleaf Holdings or its permitted assigns, as applicable, which shall be entitled to seek any relief or remedy (including specific performance) permissible under applicable Law in connection therewith. The Company and each Shareholder acknowledge and agree that the Protection Agreement shall remain in full force and effect upon a Transfer of Shares to the extent set forth therein, and each holder of Shares now or in the future shall be entitled to the benefits and protections set forth in the Protection Agreement, to the extent applicable to such holder.
Section 11.2 Notices.
Except as otherwise provided in this Agreement or required by Law, any notice, demand or other communication required or permitted to be given pursuant to this Agreement shall have been sufficiently given for all purposes if, upon the earlier of actual receipt, or: (i) personal delivery to the Party to be notified; (ii) when sent, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next Business Day; (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) Business Day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next Business Day delivery, with written verification of receipt. All communications shall be sent to the respective Parties’ address specified below or to such other address as subsequently notified by written notice given in accordance with this Section 11.2.
| (a) | If to the Company, at: | |||
| 420 Lexington Avenue, Suite 2035 | ||||
| New York, NY 10170-0052 | ||||
| Attention: | Matthew Darin, President | |||
| Telephone: | [Redacted – Personal Information] | |||
| Email: | [Redacted – Personal Information] | |||
| (b) | If to Curaleaf Holdings, at: | |||
| 420 Lexington Avenue, Suite 2035 | ||||
| New York, NY 10170-0052 | ||||
| Attention: | Matthew Darin, President | |||
| Telephone: | [Redacted – Personal Information] | |||
| Email: | [Redacted – Personal Information] | |||
| (c) | If to the Investor, at: | |||
| [Redacted – Personal Information] | ||||
| Attention: | [Redacted – Personal Information] | |||
| Telephone: | [Redacted – Personal Information] | |||
| Email: | [Redacted – Personal Information] | |||
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Section 11.3 Time of the Essence.
Time is of the essence in this Agreement.
Section 11.4 Third Party Beneficiaries.
The Parties intend that this Agreement will not benefit or create any right or cause of action in favor of any Person, other than the Parties. No Person, other than the Parties, is entitled to rely on the provisions of this Agreement in any action, suit, proceeding, hearing or other forum. The Parties reserve their right to vary or rescind the rights at any time and in any way whatsoever, if any, granted by or under this Agreement to any Person who is not a Party, without notice to or consent of that Person.
Section 11.5 No Agency or Partnership.
Nothing contained in this Agreement makes or constitutes any Party, or any of its directors, officers or employees, the trustee, fiduciary, representative, agent, principal, partner, joint venturer, employer, employee of any other Party. It is understood that no Party has the capacity to make commitments of any kind or incur obligations or liabilities binding upon any other Party.
Section 11.6 Expenses.
Except as otherwise expressly provided in this Agreement, each Party will pay for its own costs and expenses incurred in connection with this Agreement and the transactions contemplated by it. The fees and expenses referred to in this Section are those which are incurred in connection with the negotiation, preparation, execution and performance of this Agreement, and the transactions contemplated by this Agreement, including the fees and expenses of legal counsel, investment advisers and accountants.
Section 11.7 Amendments.
This Agreement may only be amended, supplemented or otherwise modified by written agreement signed by all of the Parties.
Section 11.8 Waiver.
No waiver of any of the provisions of this Agreement will constitute a waiver of any other provision (whether or not similar). No waiver will be binding unless executed in writing by the Party to be bound by the waiver. A Party’s failure or delay in exercising any right under this Agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a Party from any other or further exercise of that right or the exercise of any other right.
Section 11.9 Entire Agreement.
This Agreement, together with the Organizational Documents of the Company, the Protection Agreement, the Subscription Agreement and all related exhibits and schedules, constitutes the entire agreement between the Parties with respect to the matters contemplated by this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties related to such matters. There are no representations, warranties, covenants, conditions or other agreements, express or implied, collateral, statutory or otherwise, between the Parties in connection with the subject matter of this Agreement, except as specifically set forth in this Agreement, the Subscription Agreement and the Protection Agreement. The Parties have not relied and are not relying on any other information, discussion or understanding in entering into this Agreement.
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Section 11.10 Further Assurances.
In case at any time after the Agreement Date any further action is necessary to carry out the purposes of this Agreement, each of the Parties will take such further action (including the execution and delivery of such further instruments and documents) as any other Party reasonably may request, all at the sole cost and expense of the requesting Party.
Section 11.11 Successors and Assigns.
| (1) | This Agreement becomes effective as of the Agreement Date only when executed by all of the Parties. After that time, it is binding on and inures to the benefit of the Parties and their respective heirs, administrators, executors, legal representatives, successors and permitted assigns. |
| (2) | Except as otherwise provided in this Agreement, and except for any assignment executed in connection with a Transfer of Shares effectuated in accordance with the requirements of this Agreement, including without limitation Section 2.6, neither this Agreement nor any of the rights or obligations under this Agreement are assignable or transferable by any Party without the prior written consent of the other Parties. |
Section 11.12 Severability.
If any term or provision of this Agreement is held to be invalid, illegal, or unenforceable under applicable Law in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Section 11.13 Governing Law.
This Agreement and any claim, controversy or dispute arising out of or related to this Agreement, the relationship of the Parties and/or the interpretation and enforcement of the rights and duties of the Parties, whether arising in contract, tort, equity or otherwise, shall be governed by and construed, enforced and governed in accordance with the domestic Laws of the State of Delaware (including in respect of the statute of limitations or other limitations period applicable to any such claim, controversy or dispute), without giving effect to any choice or conflict of Law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.
Section 11.14 Submission to Jurisdiction
The Parties hereby agree that any suit, action, or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby, whether in contract, tort, or otherwise, shall be brought in the United States District Court for the District of Delaware or in the Court of Chancery of the State of Delaware (or, if such court lacks subject matter jurisdiction, in the Superior Court of the State of Delaware), so long as one of such courts shall have subject matter jurisdiction over such suit, action, or proceeding, and that any cause of action arising out of this Agreement shall be deemed to have arisen from a transaction of business in the State of Delaware. Each of the Parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action, or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action, or proceeding in any such court or that any such suit, action, or proceeding which is brought in any such court has been brought in an inconvenient form. Service of process, summons, notice, or other document by registered mail to the address set forth in Section 11.2 shall be effective service of process for any suit, action, or other proceeding brought in any such court.
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Section 11.15 WAIVER OF JURY TRIAL.
AS A SPECIFICALLY BARGAINED INDUCEMENT FOR EACH OF THE PARTIES TO ENTER INTO THIS AGREEMENT (WITH EACH PARTY HAVING HAD OPPORTUNITY TO CONSULT COUNSEL), EACH PARTY HERETO EXPRESSLY AND IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR LEGAL PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN, AND ANY LAWSUIT OR LEGAL PROCEEDING RELATING TO OR ARISING IN ANY WAY TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN SHALL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
Section 11.16 Independent Legal Advice.
Each of the Shareholders acknowledges that each has been advised that independent legal advice should be obtained in respect of this Agreement and has had an opportunity to seek such advice prior to execution of this Agreement.
Section 11.17 Injunctive Relief.
The Parties hereby agree that, in the event of breach of this Agreement (including the documents attached hereto or referred to herein), damages would be difficult, if not impossible, to ascertain, that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, in addition to and without limiting any other remedy or right it may have, each Party shall be entitled to an injunction or other equitable relief in any court of competent jurisdiction, without any necessity of proving damages or any requirement for the posting of a bond or other security, enjoining any such breach, and enforcing specifically the terms and provisions hereof. The Parties hereby waive any and all defenses they may have on the ground of lack of jurisdiction or competence of the court to grant such an injunction or other equitable relief.
Section 11.18 Remedies Cumulative.
The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
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Section 11.19 Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument and shall become effective when one or more such counterparts has been signed by each of the Parties and delivered to the other Parties. Counterparts may be delivered via electronic mail (including portable document format (PDF) or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com).
[The remainder of this page is intentionally blank.]
IN WITNESS WHEREOF the Parties have executed this Shareholders’ Agreement effective as of the Agreement Date.
| CURALEAF HOLDINGS, INC. | ||
| By: | (signed) “Matthew Darin” | |
| Name: Matthew Darin | ||
| Title: CEO | ||
| LIFEBROOK INVESTMENTS LTD. | ||
| By: | (signed) “[Redacted]” | |
| Name: [Redacted – Personal Information] | ||
| Title: Authorized Signatory | ||
| CURALEAF, INC. | ||
| By: | (signed) “Ed Kremer” | |
| Name: Ed Kremer | ||
| Title: Treasurer and Secretary | ||
EXHIBIT A
Joinder Agreement
The undersigned is executing and delivering this Joinder Agreement pursuant to that certain Shareholders Agreement dated as of December 8, 2023 by and among Curaleaf Holdings, Inc., a corporation incorporated under the laws of the province of British Columbia, Canada, Lifebrook Investments Ltd., an entity formed under the laws of England and Wales, and Curaleaf, Inc., a corporation incorporated under the laws of the State of Delaware, United States (the “Company”), as it may be amended, modified, restated, replaced or supplemented from time to time (the “Shareholders Agreement”). Capitalized terms not otherwise defined herein shall have the meaning ascribed to such terms in the Shareholders Agreement.
By executing and delivering this Joinder Agreement to the Company, the undersigned hereby (i) agrees to become, and shall as of the date hereof be deemed to be, a party to and bound by, and agrees to comply with, the provisions of the Shareholders Agreement as a holder of Shares in the same manner as if the undersigned were an original signatory to the Shareholders Agreement, (ii) affirms and acknowledges that the undersigned shall be deemed to be a “Shareholder” for all purposes of the Shareholders Agreement, (iii) acknowledges having received and reviewed a copy of the Shareholders Agreement and the Protection Agreement referred to therein, and (iv) represents and warrants that the representations and warranties contained in the Shareholders Agreement on the part of the Shareholders are deemed to be made by the undersigned and are true and correct with respect to the undersigned as of the date hereof.
This Joinder Agreement shall inure to the benefit of and be binding on the undersigned and the successors and permitted assigns of the undersigned. A signed copy of this Joinder Agreement delivered by email or other means of electronic transmission, including an electronic signature, will be deemed to have the same legal effect as delivery of an original signed copy of this Joinder Agreement.
Accordingly, the undersigned has executed and delivered this Joinder Agreement as of [month] [day], [year].
Signature:
| |
| Name of entity (if applicable): | |
| Name of Signatory: | |
| Title of Signatory (if applicable): | |
| Address: | |
Acknowledged and agreed:
| CURALEAF, INC. | |
| Name: ● | |
| Title: ● | |
EXHIBIT B
Protection Agreement
[Voluntarily omitted – Filed separately.]
EXHIBIT C
Form of Call Right Notice
TO: LIFEBROOK INVESTMENTS LTD.
AND TO: CURALEAF HOLDINGS, INC.
The undersigned hereby refers to that certain Shareholders Agreement dated as of December 8, 2023 by and among Curaleaf Holdings, Inc., a corporation incorporated under the laws of the province of British Columbia, Canada, Lifebrook Investments Ltd., an entity formed under the laws of England and Wales, and the undersigned, a Delaware corporation, as it may be amended, modified, restated, replaced or supplemented from time to time (the “Shareholders Agreement”). All terms used but not otherwise defined in this Call Right Notice have the meanings given to them in the Shareholders Agreement.
The undersigned is exercising its Call Right in respect of the Shares currently held by the Investor pursuant to Section 7.4 of the Shareholders Agreement, and is hereby requiring that the Investor sell to the undersigned such Investor Shares in accordance with the Shareholders Agreement, with the Closing to occur on [DATE]. Upon tender of the Investor Shares in accordance with Article 7, Curaleaf Holdings Inc. shall issue to the Investor the Roll-Up Shares on such date, subject to the requirements of the Shareholders Agreement.
The undersigned acknowledges that this Call Right Notice is irrevocable and binding on it and that the resulting Sale Transaction shall take place on and subject to the terms of the Shareholders Agreement.
DATED [month] [day], [year].
CURALEAF, INC.
| By: | ||
| Name: | ||
| Title: |
EXHIBIT D
Form of Put Right Notice
TO: CURALEAF, INC.
AND TO: CURALEAF HOLDINGS, INC.
The undersigned refers to that certain Shareholders Agreement dated as of December 8, 2023 by and among the undersigned, Curaleaf, Inc., a Delaware corporation, and Curaleaf Holdings, Inc., a corporation incorporated under the laws of the province of British Columbia, Canada, as it may be amended, modified, restated, replaced or supplemented from time to time (the “Shareholders Agreement”). All terms used but not otherwise defined in this Put Right Notice have the meanings given to them in the Shareholders Agreement.
The undersigned is exercising its Put Right in respect of the Put Shares currently held by the Investor pursuant to Section 7.5 of the Shareholders Agreement, and is hereby requiring that the Company acquire and redeem from the Investor such Put Shares in accordance with the Shareholders Agreement, with the Closing to occur on [DATE], subject to the requirements of the Shareholders Agreement.
Upon tender of such Put Shares in accordance with Article 7, Curaleaf Holdings shall issue to the Investor the Roll-Up Shares on such date, subject to the requirements of the Shareholders Agreement.
The undersigned acknowledges that this Put Right Notice is irrevocable and binding on it and that the resulting Sale Transaction shall take place on and subject to the terms of the Shareholders Agreement.
DATED [month] [day], [year].
LIFEBROOK INVESTMENTS LTD.
| By: | ||
| Name: | ||
| Title: |
EXHIBIT E
Form of Compliance Put Exercise Notice
TO: CURALEAF, INC.
AND TO: CURALEAF HOLDINGS, INC.
The undersigned refers to that certain Shareholders Agreement dated as of December 8, 2023 by and among the undersigned, Curaleaf, Inc., a Delaware corporation, and Curaleaf Holdings, Inc., a corporation incorporated under the laws of the province of British Columbia, Canada, as it may be amended, modified, restated, replaced or supplemented from time to time (the “Shareholders Agreement”). All terms used but not otherwise defined in this Compliance Put Exercise Notice have the meanings given to them in the Shareholders Agreement.
The undersigned is exercising its Compliance Put Right in respect of the Compliance Put Shares currently held by the Investor pursuant to Section 7.7 of the Shareholders Agreement, and is hereby requiring that the Company acquire and redeem from the Investor such Compliance Put Shares in accordance with the Shareholders Agreement.
The undersigned hereby represents and warrants to the Company and Curaleaf Holdings that the undersigned is required to exercise its Compliance Put Right pursuant to the Order attached as Exhibit A hereto.
[Upon tender of the Compliance Put Shares in accordance with the provisions of Section 7.7, Curaleaf Holdings shall issue to the Investor the Compliance Put Roll-Up Shares, in accordance with Section 7.7.]
[The undersigned hereby further represents and warrants to the Company and Curaleaf Holdings that in connection with its exercise of its Compliance Put Right in accordance with the provisions of Section 7.7, the undersigned is required to receive the Compliance Put Roll-Up Share Value in lieu of the Compliance Put Roll-Up Shares, pursuant to the Order attached as Exhibit B hereto.]
The undersigned acknowledges that this Compliance Put Exercise Notice is irrevocable and binding on it and that the resulting Sale Transaction shall take place on and subject to the terms of the Shareholders Agreement.
DATED [month] [day], [year].
LIFEBROOK INVESTMENTS LTD.
| By: | ||
| Name: | ||
| Title: |
Exhibit A: Order
[Exhibit B: Order]
Exhibit 99.9
FORM 51-102F3
MATERIAL CHANGE REPORT
Item 1 Name and Address of Company
Curaleaf Holdings, Inc. ("Curaleaf" or the "Company")
420 Lexington Avenue
Suite 2035
New York, New York
10170-0052
Item 2 Date of Material Change
December 8, 2023
Item 3 News Release
A news release with respect to the nature and substance of the material change was disseminated on December 8, 2023 through prnewswire.com and subsequently filed under the Company's profile on SEDAR+ at www.sedarplus.ca.
Item 4 Summary of Material Change
On December 8, 2023, in connection with listing of the Company’s subordinate voting shares (the "Subordinate Voting Shares") on the Toronto Stock Exchange (the "TSX"), the Company proceeded with the necessary internal reorganization (the "Reorganization") of its U.S. operations. Among other things, Curaleaf, Inc (“Curaleaf USA”), a wholly-owned subsidiary of the Company, signed a subscription agreement (the "Subscription Agreement"), with Lifebrook Investments Ltd., a third party investor which is not affiliated with the Company, Curaleaf USA or the control person of the Company (the "Investor") pursuant to which Curaleaf USA issued to the Investor one (1) share of Class A voting and non-participating common stock (the "Class A Voting Stock") for an aggregate subscription amount of US$1,000,000 (the "Investment "). Concurrently with the closing of the Investment, the Common Stock (as defined below) of Curaleaf USA held by the Company prior to the Investment was automatically exchanged for Class B Non-Voting Stock (as defined below), representing approximately 99.9% of the issued and outstanding shares in Curaleaf USA. In connection with the Reorganization, the Company also entered into (i) a shareholders’ agreement (the "Shareholders’ Agreement") with the Investor and Curaleaf USA, to establish, among other things, the rights and obligations arising out of or in connection with the ownership of the Class A Voting Stock and the Class B Non-Voting Stock, and (ii) a protection agreement (the "Protection Agreement") providing for certain negative covenants in order to preserve the value of the Class B Non-Voting Stock held by the Company until a Conversion (as defined herein), as more fully described below.
Item 5 Full Description of Material Change
5.1 Full Description of Material Change
Background
The Company is a leading producer and distributor of consumer products in cannabis, with a mission to improve lives by providing clarity around cannabis and confidence around consumption. As a vertically integrated, high-growth cannabis operator known for quality, expertise and reliability, the Company and its brands, including Curaleaf, Select and Grassroots, provide industry-leading services, product selection and accessibility across the medical and adult-use markets in the U.S. and is headquartered in New York, New York. In the United States, the Company operates in 17 states with 147 dispensaries and employes nearly 5,200 team members. The Company currently operates its business in the United States through its wholly-owned subsidiary, Curaleaf USA.
In April 2021, the Company completed, through its 68.5% equity interest in Curaleaf International Holdings Limited (“International Holdings”), the acquisition of EMMAC Life Sciences Limited, which has since been renamed Curaleaf International Limited (“Curaleaf International”), and thereby entered what the Company considers to be key European medical cannabis markets, including the United Kingdom, Germany, Spain and Portugal. International Holdings operates its business through two subsidiaries, namely its wholly owned subsidiary Curaleaf International, as well as its German subsidiary Four 20 Pharma GmbH, in which International Holdings owns a 55% equity interest. Curaleaf International is the largest vertically integrated cannabis company in Europe with a unique supply and distribution network throughout the European market, bringing together pioneering science and research with cutting-edge cultivation, extraction and production.
Notwithstanding the fact that various states in the U.S. have implemented laws or have otherwise legalized the use of cannabis, the use of cannabis remains illegal under U.S. federal law for any purpose, pursuant to the U.S. federal Controlled Substances Act (the "CSA"). Given the Company's cannabis activities in the U.S., it has been precluded from listing its securities on certain stock exchanges with more rigorous regulatory restrictions, such as the TSX, as further described below.
On October 16, 2017, the TSX provided clarity regarding the application of Sections 306 (Minimum Listing Requirements) and 325 (Management) and Part VII (Halting of Trading, Suspension and Delisting of Securities) of the TSX Company Manual (collectively, the "TSX Requirements") to issuers with business activities in the cannabis sector. In TSX Staff Notice 2017-0009, the TSX stated that issuers with ongoing business activities that violate U.S. federal law regarding cannabis are not in compliance with the TSX Requirements. The TSX noted that these non-compliant business activities may include (i) direct or indirect ownership of, or investment in, entities engaging in activities related to the cultivation, distribution or possession of cannabis in the United States, (ii) commercial interests or arrangements with such entities, (iii) providing services or products specifically targeted to such entities, or (iv) commercial interests or arrangements with entities engaging in providing services or products to U.S. cannabis companies.
On October 10, 2023, the Company announced it had filed an application to list the Subordinate Voting Shares on the TSX. On December 6, 2023, the Company obtained conditional approval from the TSX to list its Subordinate Voting Shares on the TSX subject to meeting certain customary conditions. Following satisfaction of such conditions, the Subordinate Voting Shares of the Company started trading on the TSX on December 14, 2023 under the ticker symbol "CURA", and the Subordinate Voting Shares were delisted from the Canadian Securities Exchange as at the close of business on December 13, 2023.
On December 8, 2023, Curaleaf USA entered into the Subscription Agreement with the Investor pursuant to which Curaleaf USA issued to the Investor one (1) share of Class A Voting Stock for an aggregate subscription amount of US$1,000,000.
Prior to the Investment, the Company held Common Stock of Curaleaf, Inc., representing 100% of the issued and outstanding shares of Curaleaf, Inc. Concurrently with the closing of the Investment and in accordance with the seventh amended and restated certificate of incorporation of Curaleaf USA filed concurrently with the execution of the Subscription Agreement, such Common Stock was automatically exchanged for 999 shares of Class B non-voting and participating common stock (the "Class B Non-Voting Stock"). Following the closing of the Investment in accordance with the terms of the Subscription Agreement, the Investor now holds all of the issued and outstanding Class A Voting Stock and voting rights of Curaleaf USA. The Company now holds all of the issued and outstanding Class B Non-Voting Stock, which represent 99.9% of the economic ownership of Curaleaf USA, on an as-converted basis.
Prior to the closing of the Investment, the Company held or exercised control over all or substantially all of its U.S. cannabis assets through Curaleaf USA and its subsidiaries. As a result of the Reorganization, considering the Class B Non-Voting Stock does not provide for voting rights, the Company no longer has legal control over Curaleaf USA and only retained an economic interest in the Company's U.S. cannabis operations. The Company continues to have legal and economic control over International Holdings and its subsidiaries, through which the Company operates its international business.
The Class B Non-Voting Stock is exchangeable by the Company into shares of Class C voting and participating common stock (the "Class C Voting Stock") of Curaleaf USA at any time. In connection with the TSX Listing, the Company executed an undertaking to the TSX prohibiting it from exchanging the Class B Non-Voting Stock into Class C Voting Stock for so long as the Subordinate Voting Shares are listed on the TSX or such exchange is permitted in accordance with the rules and policies of the TSX (the "Undertaking"). As a result of the limited rights associated with the Class B Non-Voting Stock, Curaleaf and Curaleaf USA also entered into, concurrently with the closing of the Investment, the Protection Agreement providing for certain negative covenants in order to preserve the value of the Class B Non-Voting Stock held by the Company until such time as the Class B Non-Voting Stock is converted into Class C Voting Stock by the Company, including, among others, prohibitions on Curaleaf USA’s organizational documents amendments, changes to the authorized share capital of Curaleaf USA, changes to the Curaleaf USA’s board of directors, material changes to the business conducted by Curaleaf USA or the making of loans or capital expenditures above certain specified thresholds, the whole except with the prior written consent of Curaleaf or as required by applicable laws. The Protection Agreement is more fully described below under the heading "Protection Agreement".
Concurrently with the Investment, as more fully described in the Consent Solicitation Statement and Information Circular of the Company dated July 14, 2023 and the Management Information Circular of the Company dated August 23, 2023, respectively, and as previously approved by the Company’s securityholders, the Company implemented (A) certain amendments to the indenture among the Company and Odyssey Trust Company dated as of December 15, 2021 (as supplemented from time to time, the "Indenture") governing the notes thereunder (the "Indenture Amendments") in order to facilitate the implementation of the Reorganization, and (B) certain amendments to the Company’s articles (the "Articles Amendments") in order to: (i) create a new class of non-voting and non-participating shares in the capital of the Company exchangeable at the holder’s option into Subordinate Voting Shares (the "Non-Voting Exchangeable Shares") and authorize the issuance of an unlimited number of Non-Voting Exchangeable Shares; and (ii) restate the rights of the Subordinate Voting Shares to provide for a conversion feature whereby each Subordinate Voting Share may at any time, at the holder’s option, be converted into one (1) Non-Voting Exchangeable Share. The Non-Voting Exchangeable Shares do not carry voting rights, rights to receive dividends or other rights upon dissolution of the Company, and are considered "restricted securities" within the meaning of such term under applicable Canadian securities laws. The Articles Amendments aim to provide Company’s shareholders with the option to convert their Subordinate Voting Shares into Non-Voting Exchangeable Shares if such shareholders prefer to hold non-voting and non-participating shares given the uncertainty and complexity related to cannabis regulations in the United States.
Concurrently with the closing of the Investment, the Company and the Investor, as shareholders of Curaleaf USA, also entered into the Shareholders’ Agreement with respect to Curaleaf USA, to establish, among other things, the rights and obligations arising out of or in connection with the ownership of the Class A Voting Stock and the Class B Non-Voting Stock. Under the Shareholders’ Agreement, Curaleaf USA holds a call right to repurchase all of the Class A Voting Stock issuable to the Investor at any time, and the Investor has the right to appoint a director to the Curaleaf, Inc.’s board of directors and a put right exercisable following the occurrence of certain stated events and after the five (5) year anniversary of the Shareholders’ Agreement subject to certain parameters to ensure the maintaining of the TSX Listing. The Shareholders’ Agreement is more fully described below under the heading "Shareholders’ Agreement".
Following completion of the TSX Listing, the Company is now subject to the TSX Requirements and accordingly is prohibited from owning or investing, either directly or indirectly, in entities engaging in activities related to the cultivation, distribution or possession of cannabis in the United States that could be deemed to violate applicable federal laws relating to cannabis. As a result of the TSX Listing, Curaleaf USA and the Company is subject to certain restrictions on cash or cash-equivalent transfers, whereby, amongst other things, (i) the Company is prohibited from flowing any cash to Curaleaf USA and its U.S. subsidiaries with ongoing business activities that violate U.S. federal law regarding cannabis, and (ii) Curaleaf USA and such U.S. subsidiaries is prohibited from flowing any cash to the Company, whether by way of dividend or otherwise.
The Company’s Reorganisation, and the entering into of the Shareholders’ Agreement and the Protection Agreement, are aimed at alleviating such concerns and ensuring compliance by the Company with the TSX Requirements following completion of the TSX Listing. Copies of the Indenture, as amended, the Subscription Agreement, the Shareholders Agreement and the Protection Agreement have all been filed under the Company’s profile on SEDAR+ at www.sedarplus.ca.
Shareholders’ Agreement
The following summarizes the terms of the Shareholders’ Agreement, which summary is qualified in its entirety by reference to the full text of the Shareholders’ Agreement, a copy of which has been filed under Curaleaf's profile on SEDAR+ at www.sedarplus.ca.
Director Nominee Rights
Under the Shareholders’ Agreement, the Investor is entitled to nominate one (1) out of four (4) directors on the board of directors of Curaleaf USA (“Curaleaf USA Board”); provided that such director is acceptable to the Company and nominated in accordance with the terms of the Shareholders' Agreement. The Company is entitled to nominate two (2) out of four (4) directors on the Curaleaf USA Board and a fourth director is nominated unanimously by the Company and the Investor, the whole subject to the terms of the Shareholders’ Agreement.
Additionally, the Company has the right to nominate any and all of the members of the Company’s board of directors who are not otherwise directors of Curaleaf USA as non-voting observers to the Curaleaf USA Board .
Restrictions on Transfers and Encumbrances of Shares
During the term of the Shareholders’ Agreement, the Investor shall not, directly or indirectly, voluntarily or involuntarily, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any of its Class A Voting Shares or any interest (including beneficial interest) in any Class A Voting Shares without the Company’s prior written consent, which consent may be withheld or conditioned in its sole and absolute discretion.
Limitation on Distributions
During the term of the Shareholders’ Agreement, Curaleaf USA shall not make any distribution to its shareholders, whether in cash, property or securities of the Company and whether by dividend, liquidating distribution or otherwise, if such distribution would violate the Protection Agreement, the organizational documents of Curaleaf USA or applicable law.
Conversion
At any time and from time to time, subject to the Undertaking, the Company has the right by written election to Curaleaf USA to convert (a "Conversion") all or any portion of its Class B Non-Voting Stock (including any fraction of a share) into Class C Voting Stock, on a one-for-one basis, along with the aggregate accrued or accumulated and unpaid dividends thereon, without the payment of additional consideration. The Conversion shall result in the deemed exercise of the call right and put rights described below.
Call Right
During the term of the Shareholders’ Agreement, at any time by delivering a call right exercise notice to the Investor and the Company, Curaleaf USA has the right (but not the obligation) to acquire and redeem from the Investor and to require the Investor to sell, assign and transfer to Curaleaf USA all (but not less than all) of the shares of Curaleaf USA held by the Investor, in consideration for the issuance by the Company of a certain number of Subordinate Voting Shares (the "Roll-Up Shares"), as determined in accordance with and subject to the Shareholders’ Agreement, and in all respects in compliance with applicable laws and the rules of the TSX or any other stock exchange on which the Subordinate Voting Shares are then listed for trading.
For purposes of the Shareholders’ Agreement, subject to compliance with the rules of the TSX, the number of Roll-Up Shares issuable to the Investor pursuant to the call right or the put right, as applicable, shall be determined based on the following: the amount of the Investment, plus an amount equal to 10% per annum on the Investment for the period between the date of the Shareholders’ Agreement and the date of issuance of the Roll-Up Shares, the whole divided by weighted average trading price of the Subordinate Voting Shares on the TSX for the five days prior to the issuance of the Roll-Up Shares. Notwithstanding the foregoing, in no circumstances the exercise of the call right or the put right under the Shareholders’ Agreement shall result in the Investor receiving Subordinate Voting Shares in excess of 19.99% of the Subordinate Voting Shares outstanding immediately after giving effect to the issuance of the Subordinate Voting Shares issuable thereunder.
Put Right
Subject to the terms and conditions of the Shareholders’ Agreement, upon delivering a put right exercise notice to Curaleaf USA and the Company, from the earliest of: (i) the effective date of a Conversion by the Company; (ii) the announcement by the Company of (x) any change in control of Curaleaf, (y) any transaction that would result in the Investor no longer owning all of the Voting Stock in Curaleaf USA, or (z) the securities of the Company becoming subject to a take-over bid or equivalent; (iii) any insolvency, bankruptcy or similar event involving the Company or Curaleaf USA that has not been vacated, discharged, stayed or bonded pending appeal within sixty (60) days from the entry thereof; (iv) the issuance of any financial statements by the Company containing a going concern qualification for two (2) consecutive quarters; (v) the date that the Company becomes listed on any nationally recognized stock exchange in the United States, which listing is not contingent on maintaining the corporate structure of Curaleaf USA; or (vi) the five (5)-year anniversary of the Shareholders’ Agreement, the Investor shall have the right (but not the obligation) to require Curaleaf USA to purchase and redeem from the Investor all (but not less than all) of its shares in Curaleaf USA in consideration for the issuance of Roll-Up Shares by the Company, as determined in accordance with and subject to the Shareholders’ Agreement, and in all respects in compliance with the applicable laws and the rules of the TSX or any other stock exchange on which the Subordinate Voting Shares are then listed for trading (a “Put Transaction”).
Compliance Put Right
Without limiting and in addition to any right of the Investor to effect a Put Transaction, upon delivering a compliance put right exercise notice to Curaleaf USA and the Company, in the event the Investor receives a bona fide written order, writ, injunction, directive, judgment or decree of a governmental authority applicable to the Investor (collectively, an “Order”), and such Order prohibits the Investor from holding shares in Curaleaf USA or would otherwise cause the Investor to be in violation of applicable Laws as a result of the Investor holding shares in Curaleaf USA, (i) the Investor shall promptly provide the Company with a copy of such Order, and (ii) the Investor shall have the right to require the Company to purchase and redeem from the Investor all (but not less than all) of its shares in Curaleaf USA in consideration for the issuance by Curaleaf Holdings to the Investor of the Roll-Up Shares (a “Compliance Put Transaction”). Solely in the event that the Investor receives an Order that prohibits the Investor from receiving or holding the Roll-Up Shares or would otherwise cause the Investor to be in violation of applicable Law as a result of the Investor holding the Roll-Up Shares, Curaleaf USA shall have the right to pay such value in cash or by issuing the Investor a promissory note, with all principal due at the maturity date of three (3) years from the issuance thereof, with simple interest equal to the prime interest rate then in effect, as reported by the Wall Street Journal, plus five percent (5%).
Upon receipt of a compliance put right exercise notice, the Company and Curaleaf USA shall have the right to delay the closing of the Compliance Put Transaction in order to identify, and obtain regulatory approval of, a replacement investor, subject to and in compliance with applicable Law. In such event, Curaleaf USA shall use commercially reasonable efforts to identify a replacement investor candidate and to file an application or applications with the applicable governmental authorities (as determined by Curaleaf USA) for regulatory approval of such Replacement Investor candidate within sixty (60) days of the Curaleaf USA’s receipt of the compliance put right exercise notice.
Notwithstanding anything to the contrary in the Shareholders’ Agreement, in the event that the completion of a Put Transaction or a Compliance Put Transaction would jeopardize the listing of the Subordinate Voting Shares on the TSX or another nationally recognize exchange in the United States, Curaleaf USA shall be entitled, in its sole and absolute discretion, to further delay the closing date of such Put Transaction or Compliance Put Transaction until such time as it receives (a) a confirmation by the TSX or such other nationally recognized exchange in the United States to the effect that the listing of the Subordinate Voting Shares on the TSX or such other nationally recognized exchange in the United States would not be affected by such Put Transaction or Compliance Put Transaction, and (b) a confirmation by the auditors of Curaleaf USA that it would not affect the consolidation of the Company and Curaleaf USA for the purposes of the Company’s consolidated financial statements.
Protection Agreement
The following summarizes the terms of the Protection Agreement, which summary is qualified in its entirety by reference to the full text of the Protection Agreement, a copy of which has been filed under Curaleaf's profile on SEDAR+ at www.sedarplus.ca.
The Protection Agreement requires Curaleaf USA to maintain and preserve its business organizations, properties, assets, rights, employees, goodwill and business relationships with customers, suppliers, partners and other persons with which Curaleaf USA has material business relations (provided that the foregoing shall not limit Curaleaf USA’s and its subsidiaries’ rights to modify or terminate business relationships, terminate employees, transfer properties, assets and rights and to take similar actions, in each case in the ordinary course of business).
The Protection Agreement further provides the Company with the ability to restrict the operations of Curaleaf USA and its subsidiaries. Among other things, except: (i) with the prior consent of the Company, (ii) as expressly required or permitted by the Protection Agreement, the Shareholders’ Agreement or the organizational documents of Curaleaf USA or applicable subsidiaries, (iii) as required by applicable laws, or (iv) as required for Curaleaf USA or any of its subsidiaries to obtain or maintain any U.S. state and/or local cannabis license, Curaleaf USA shall not, and, as applicable, shall not permit any of its subsidiaries to, directly or indirectly (subject to the limitations and exceptions provided in the Protection Agreement), among other things:
| (a) | amend Curaleaf USA’s or its subsidiaries’ constating or similar organizational documents; | |
| (b) | change the size of the Curaleaf USA Board from four (4) members; | |
| (c) | make any material change in the nature of the business of Curaleaf USA or any of its subsidiaries; | |
| (d) | declare, set aside or pay any dividend or other distribution of any kind or nature; | |
| (e) | redeem, repurchase or otherwise acquire, or offer to redeem, repurchase or otherwise acquire, any securities of Curaleaf USA or its subsidiaries; | |
| (f) | issue additional securities to any person other than the Company; | |
| (g) | appoint, change or remove the auditors of the Company, Curaleaf USA and its subsidiaries; | |
| (h) | reorganize, amalgamate or merge Curaleaf USA or any subsidiary with a third-party; | |
| (i) | undertake any voluntary dissolution, liquidation or winding-up or any other distribution of assets for the purpose of winding-up its affairs; | |
| (j) | incur or commit to incur, or enter into a contract which provides for, capital expenditures in excess of a specified threshold during any fiscal year, individually or in the aggregate; | |
| (k) | make any loan or advance to any person other than to any of its wholly-owned subsidiaries; | |
| (l) | assume or guarantee in any way the payment or performance (or payment of damages in the event of non-performance) of any indebtedness or other liability or obligation of any other person other than obligations of wholly-owned subsidiaries; |
| (m) | sell, transfer, lease, exchange or otherwise dispose of any material equipment, business or asset of Curaleaf USA or any subsidiary, other than in the ordinary course of business; | |
| (n) | grant or permit the existence of any lien on the assets of Curaleaf USA or any of its subsidiaries, subject to certain exceptions; | |
| (o) | enter into any agreement for the acquisition of, or investment in, a business (whether by purchase of shares or assets, or otherwise) if the purchase price or subscription price, as applicable, in connection with such agreement would exceed a specified threshold; | |
| (p) | enter into any interested party transaction, unless such transaction is on arm’s length, fair market value terms; | |
| (q) | take any action, or refrain from taking any action, or permit any action to be taken or not taken, which could reasonably be expected to prevent, materially delay or otherwise impede the ability to convert the Class B Non-Voting Stock into Class C Voting Stock; | |
| (r) | abandon or fail to diligently pursue any renewal application for any authorizations necessary to conduct the business of Curaleaf USA or any of its subsidiaries as now conducted; | |
| (s) | commence any action, suit or proceeding, including a defense to a claim or counterclaim, or compromise or settle any action, suit or proceeding, where the amount in dispute is over a specified threshold; and | |
| (t) | authorize, agree, resolve or otherwise commit, whether or not in writing, to do any of the foregoing. |
In addition, the Protection Agreement requires Curaleaf USA to, among other things: (a) preserve and maintain the existence of the Company and its subsidiaries; (b) take all actions reasonably necessary or desirable to maintain Curaleaf USA’s and its subsidiaries’ good standing and qualification to conduct business in its jurisdiction of formation and in any other jurisdiction in which it is required to be so qualified; (c) prepare and file when due all tax returns required to be filed by Curaleaf USA and its subsidiaries, and pay or cause to be paid all taxes due on such tax returns; (d) take all reasonable steps and actions that are within its power and control to obtain and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are reasonably required in order to (i) conduct its and its subsidiaries’ business as now conducted or as proposed to be conducted in all material respects, (ii) maintain its and its subsidiaries’ material contracts in full force and effect, without limiting the right or ability of Curaleaf USA or any subsidiary to amend or terminate any contract when such amendment or termination is in Curaleaf USA or such subsidiary’s, as the case may be, best interest, and (iii) permit the conversion of the Class B Non-Voting Shares into Class C Voting Shares in accordance with the terms of the Protection Agreement; and (e) maintain, or cause to be maintained, public liability and casualty insurance, all in such form, coverages and amounts as are reasonably consistent with industry practices.
The Protection Agreement also includes various information rights that require Curaleaf USA to notify the Company of certain specified developments and provide ongoing monthly and annual financial information. Curaleaf USA is also required to prepare and operate in accordance with an approved annual budget prepared in accordance with U.S. generally accepted accounting principles and other requirements as set forth in the Protection Agreement.
Following the closing of the Investment, the Company does not have the ability to unilaterally make decisions with respect to the business, operations or activities of Curaleaf USA as the Company only has the right to appoint two (2) directors of the Curaleaf USA board of directors and the Protection Agreement provides mostly for negative covenants and limited positive obligations. Nonetheless, from an accounting perspective, the Company expects that it will consolidate the financial statements of Curaleaf USA.
Risk Factors Relating to the TSX Listing
Shareholders should carefully consider the risks described below. Shareholders should also carefully consider the risks described under the heading "Risk Factors" in the section of our annual management's discussion and analysis of financial condition and results of operations for the years ended December 31, 2022 and 2021 dated May 1, 2023, and of our annual information form for the year ended December 31, 2022 dated May 1, 2023, both of which are available under the Company's profile on SEDAR+ at www.sedarplus.ca, which risk factors are incorporated herein by reference. Readers are cautioned that such risk factors are not exhaustive and additional risks and uncertainties, including those currently unknown or considered immaterial to the Company may also adversely affect the Company.
Certain Restrictions of the TSX May Constrain the Company’s Ability to Expand its Business in the United States
Following completion of the TSX Listing, the Company is required to comply with the TSX Requirements or guidelines when conducting business, especially when pursuing opportunities in the United States.
On October 16, 2017, the TSX provided clarity regarding the application of the TSX Requirements to TSX-listed issuers with business activities in the cannabis sector. In the TSX Staff Notice, the TSX notes that issuers with ongoing business activities that violate U.S. federal law regarding cannabis are not in compliance with the TSX Requirements. The TSX reminded issuers that, among other things, should the TSX find that a listed issuer is engaging in activities contrary to the TSX Requirements, the TSX has the discretion to initiate a delisting review.
Following completion of the TSX Listing, Curaleaf USA and the Company is now subject to certain restrictions on cash or cash-equivalent transfers, whereby, amongst other things, (i) the Company would be prohibited from flowing any cash to Curaleaf USA and its U.S. subsidiaries with ongoing business activities that violate U.S. federal law regarding cannabis, and (ii) Curaleaf USA and such U.S. subsidiaries would be prohibited from flowing any cash to the Company, whether by way of dividend or otherwise. Such restrictions may restrict the ability of the Company to make and finance acquisitions of U.S. cannabis related assets or businesses, which may limit Curaleaf USA’s ability to grow and have a material adverse effect on the business, financial condition and results of operations of Curaleaf USA and the Company.
Although the Company expects to be able to comply with the TSX Requirements following the TSX Listing, there is a risk that the Company’s interpretation may differ from the TSX and failure to comply with the TSX Requirements could result in the denial of an application for certain approvals, such as to have additional securities listed on the TSX, and could even lead to a delisting from the TSX, which could have a material adverse effect on the trading price of the Subordinate Voting Shares and could have a material adverse effect on the Company’s business, financial condition and results of operations.
Potential Heightened Scrutiny by Regulatory Authorities
Following completion of the TSX Listing, any investments, joint ventures or operations thereafter in the United States, may become the subject of heightened scrutiny by regulators, stock exchanges and other authorities in Canada. As a result, the Company may be subject to significant direct and indirect interaction with public officials. There can be no assurance that this heightened scrutiny will not in turn lead to the imposition of certain restrictions on the Company’s ability to invest in the United States or any other jurisdiction, in addition to those described herein.
5.2 Disclosure for Restructuring Transactions
Refer to Item 5.1 above.
Item 6 Reliance on subsection 7.1(2) of National Instrument 51-102
Not applicable.
Item 7 Omitted Information
Not applicable.
Item 8 Executive Officer
Peter Clateman
Chief Legal Officer
IR@curaleaf.com
Item 9 Date of Report
December 15, 2023
Forward-Looking Information
This material change report contains "forward-looking information" and "forward-looking statements" within the meaning of Canadian securities laws and United States securities laws (collectively, "forward-looking statements"). Forward-looking statements are neither historical facts nor assurances of future performance. Instead, they are based on management's current beliefs, expectations or assumptions regarding the future of the business, plans and strategies, operational results and other future conditions of the Company. In addition, the Company may make or approve certain statements in future filings with Canadian securities regulatory authorities, in press releases, or in oral or written presentations by representatives of the Company that are not statements of historical fact and may also constitute forward-looking statements. All statements, other than statements of historical fact, made by the Company that address activities, events or developments that the Company expects or anticipates will or may occur in the future are forward-looking statements, including, but not limited to, statements preceded by, followed by or that include words such as "assumptions", "assumes", "guidance", "outlook", "may", "will", "would", "could", "should", "believes", "estimates", "projects", "potential", "expects", "plans", "intends", "anticipates", "targeted", "continues", "forecasts", "designed", "goal", or the negative of those words or other similar or comparable words. In particular, but without limiting the foregoing, disclosure in this material change report as well as statements regarding the anticipated benefits to the Company and Curaleaf USA of the Investment, Reorganization and TSX Listing and other expectations for other economic, business and/or competitive factors are forward-looking statements. These forward-looking statements speak only as at the date they are made and are based on information currently available and on the then current expectations.
Holders of securities of the Company are cautioned that forward-looking statements are not based on historical facts but instead are based on reasonable assumptions and estimates of management of the Company at the time they were provided or made and involve known and unknown risks, uncertainties and other factors which may cause the actual results, performance or achievements of the Company, as applicable, to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements, including, but not limited to, risks and uncertainties related to the TSX Listing described above; as well as those risk factors discussed under "Risk Factors" in the Company's Annual Information Form dated May 1, 2023 for the fiscal year ended December 31, 2022, and additional risks described in the Company's Annual Management's Discussion and Analysis for the year ended December 31, 2022 (both of which documents have been filed on the Company's profile on SEDAR+ at www.sedarplus.ca and on EDGAR at www.sec.gov/edgar/html), and as described from time to time in documents filed by the Company with Canadian securities regulatory authorities.
The purpose of forward-looking statements is to provide the reader with a description of management's expectations, and such forward-looking statements may not be appropriate for any other purpose. Although the Company believes that the expectations reflected in such forward-looking statements are reasonable, it can give no assurance that such expectations will prove to have been correct. A number of factors could cause actual events, performance or results to differ materially from what is projected in the forward-looking statements. You should not place undue reliance on forward-looking statements contained in this press release. Such forward-looking statements are made as of the date of this material change report. The Company undertakes no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by applicable law. The Company's forward-looking statements are expressly qualified in their entirety by this cautionary statement.
Exhibit 99.10
CHANGE OF STATUS REPORT
SECTION 11.2 OF NATIONAL INSTRUMENT 51-102
| TO: | British Columbia Securities Commission Alberta Securities Commission Financial and Consumer Affairs Authority of Saskatchewan The Manitoba Securities Commission Ontario Securities Commission Autorité des Marchés Financiers Financial and Consumer Services Commission (New Brunswick) Nova Scotia Securities Commission Office of the Superintendent of Securities, Prince Edward Island Office of the Superintendent of Securities, Newfoundland and Labrador Office of the Superintendent of Securities, Northwest Territories Office of the Yukon Superintendent of Securities Nunavut Securities Office |
| RE: | Curaleaf Holdings, Inc. (the "Corporation") |
Pursuant to Part 11.2 of National Instrument 51-102 – Continuous Disclosure Obligations ("NI 51-102"), notice is hereby given that the subordinate voting shares of the Corporation have been listed for trading on the Toronto Stock Exchange and that as a result, effective December 14, 2023, the Corporation ceased to be a "venture issuer", for the purposes of National Instrument 51-102.
Dated this 15th day of December 2023.
| CURALEAF HOLDINGS, INC. | ||
| By: | (signed) “Peter Clateman” | |
| Name: | Peter Clateman | |
| Title: | Chief Legal Officer | |