Greenbriar Sustainable Living Inc 20-F for FY2023
Greenbriar Sustainable Living Inc. (GEBRF)
About this 20-F
Greenbriar Sustainable Living Inc filed this 20-F on April 30, 2024, covering the fiscal year ended December 31, 2023 (FY2023).
Headline figures
Fiscal year ended December 31, 2023, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Net loss
- 2.63M CAD
- compared with a net loss of 2.76M CAD a year earlier
- Diluted EPS
- -0.08 CAD
- compared with -0.09 CAD a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
OR
For the fiscal year ended
OR
For the transition period from _______________ to _______________
OR
Date of event requiring this shell company report _______________
Commission file number _________________________
(Exact name of Registrant specified in its charter)
Not Applicable
(Translation of Registrant's name into English)
British Columbia,
(Jurisdiction of incorporation or organization)
(Address of principal executive offices)
(Name, Telephone, Email and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act.
|
Title of Each Class |
Trading Symbol(s) |
Name of each exchange on which registered |
|
Not Applicable |
Not Applicable |
Not Applicable |
Securities registered or to be registered pursuant to Section 12(g) of the Act.
Common Shares, without par value
(Title of Class)
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act.
None
(Title of Class)
Number of outstanding shares of each of the issuer's classes of capital or common stock as of the close of business of the period covered by the annual report.
Not Applicable
Indicate by check mark if the Registrant is a well-known seasoned issuer as defined in Rule 405 of the Securities Act.
Yes ☐
If this report is an annual or transition report, indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Yes ☐
Indicate by check mark whether Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company. See definition of "accelerated filer," "large accelerated filer," and "emerging growth company" in Rule 12b-2 of the Exchange Act.
|
Large Accelerated Filer ☐ |
Accelerated Filer ☐ |
|
|
Emerging Growth Company |
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards pursuant to Section 13(a) of the Exchange Act.
Indicate by check mark whether the registrant has filed a report on and attestation to its management's assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive based compensation received by any of the registrant's executive officers during the relevant recovery period pursuant to §240.10D-1(b).
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
|
U.S. GAAP ☐ |
|
Other ☐ |
|
|
by the International Accounting Standards Board ☒ |
|
If "Other" has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow: Item 17 ☐ Item 18 ☐
If this is an annual report, indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b 2 of the Exchange Act):
Yes ☐ No
TABLE OF CONTENTS
Page
GENERAL MATTERS
In this Annual Report on Form 20-F (this "Annual Report"), all references to "Greenbriar" are to Greenbriar Sustainable Living Inc., and all references to the "Company", "our", "us" or "we" refer to Greenbriar Sustainable Living Inc. and its consolidated subsidiaries, unless the context clearly requires otherwise.
We report under International Financial Reporting Standards, as issued by the International Accounting Standards Board ("IFRS"). None of our financial statements were prepared in accordance with generally accepted accounting principles in the United States.
We use the Canadian dollar as our reporting currency. All references to “C$” and “$” are to Canadian dollars and references to “US$” are to United States dollars. On April 29, 2024, the daily average exchange rate for the conversion of Canadian dollars into U.S. dollars as reported by the Bank of Canada was C$1.00 = US$0.73149. See also Item 3, “Key Information” for more detailed currency and conversion information.
FORWARD LOOKING STATEMENTS
This Annual Report contains statements that constitute "forward-looking statements". Any statements that are not statements of historical facts may be deemed to be forward-looking statements. These statements appear in a number of different places in this Annual Report and, in some cases, can be identified by words such as "anticipates", "estimates", "projects", "expects", "contemplates", "intends", "believes", "plans", "may", "will" or their negatives or other comparable words, although not all forward-looking statements contain these identifying words. Forward-looking statements in this Annual Report may include, but are not limited to, statements and/or information related to: strategy, future operations, revenues, earnings, projected costs, expected production capacity, expectations regarding demand and acceptance of our products, trends in the market in which we operate, plans and objectives of management.
Forward-looking statements are based on the reasonable assumptions, estimates, analysis and opinions made in light of our experience and our perception of trends, current conditions and expected developments, as well as other factors that we believe to be relevant and reasonable in the circumstances at the date that such statements are made, but which may prove to be incorrect. Management believes that the assumption and expectations reflected in such forward-looking statements are reasonable. Assumptions have been made regarding, among other things: the Company’s ability to build Sage Ranch and the Montalva Solar Project, and to begin production deliveries within certain timelines; the Company’s labor costs and material costs remaining consistent with the Company’s current expectations; there being no material variations in the current regulatory environment; and the Company’s ability to obtain financing as and when required and on reasonable terms. Readers are cautioned that the foregoing list is not exhaustive of all factors and assumptions which may have been used.
Such risks are discussed in Item 3.D "Risk Factors". In particular, without limiting the generality of the foregoing disclosure, the statements contained in Item 4.B. - "Business Overview", Item 5 - "Operating and Financial Review and Prospects" and Item 11 - "Quantitative and Qualitative Disclosures About Market Risk" are inherently subject to a variety of risks and uncertainties that could cause actual results, performance or achievements to differ significantly. Such risks, uncertainties and other factors include but are not limited to:
Although management has attempted to identify important factors that could cause actual results to differ materially from those contained in forward-looking statements, there may be other factors that cause results not to be as anticipated, estimated or intended. There is no assurance that forward-looking statements will prove to be accurate, as actual results and future events could differ materially from those anticipated in such forward-looking statements. Accordingly, readers should not place undue reliance on forward-looking statements. These cautionary remarks expressly qualify, in their entirety, all forward-looking statements attributable to our Company or persons acting on our Company's behalf. We do not undertake to update any forward-looking statements to reflect actual results, changes in assumptions or changes in other factors affecting such statements, except as, and to the extent required by, applicable securities laws. You should carefully review the cautionary statements and risk factors contained in this Annual Report and other documents that the Company may file from time to time with the securities regulators.
PART I
ITEM 1. IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS
A. Directors and Senior Management
Not applicable.
ITEM 2. OFFER STATISTICS AND EXPECTED TIMETABLE
Not applicable.
ITEM 3. KEY INFORMATION
A. [Reserved]
B. Capitalization and Indebtedness
Not applicable.
C. Reasons for the offer and use of proceeds
Not applicable.
D. Risk Factors
An investment in our shares carries a significant degree of risk. You should carefully consider the following risks, as well as the other information contained in this Annual Report, including our financial statements and related notes included elsewhere in this Annual Report, before you decide to purchase our shares. Any one of these risks and uncertainties has the potential to cause material adverse effects on our business, prospects, financial condition and operating results which could cause actual results to differ materially from any forward-looking statements expressed by us and a significant decrease in the value of our common shares. Refer to "Forward-Looking Statements".
We may not be successful in preventing the material adverse effects that any of the following risks and uncertainties may cause. These potential risks and uncertainties may not be a complete list of the risks and uncertainties facing us. There may be additional risks and uncertainties that we are presently unaware of, or presently consider immaterial, that may become material in the future and have a material adverse effect on us. You could lose all or a significant portion of your investment due to any of these risks and uncertainties.
Risks Related to the Business of the Company
We must successfully develop our real estate and solar projects before we can earn revenue. None of these have any operating history and may not perform as expected.
Our Sage Ranch real estate project and our Montalva Solar Project are all in the early stages of development. None of the projects has any significant infrastructure constructed. If we are unable to complete construction of the projects, we will not be able to realize any revenues from these developments. These projects have no operating history. The ability of such projects to perform as expected will also be subject to risks inherent in newly constructed generation and transmission projects, including, but not limited to, equipment performance below the Corporation’s expectations, unexpected component failures and product defects, and generation and transmission system failures and outages, as well as risks inherent in the marketing and sale of housing. The failure of some or all of the projects to perform as expected could have a material adverse effect on the Corporation’s business, results of operations, financial condition and cash flows.
We may not be able to pay Captiva Verde Wellness Corp. monthly installments as contemplated by the settlement to our joint venture agreement with them, and as a consequence Captiva Verde Wellness Corp. will continue to have a further net profits interest in and to the Sage Ranch project.
We have agreed to settle our joint venture with Captiva Verde Wellness Corp. in relation to our Sage Ranch real estate project, pursuant to which we will pay Captiva Verde Wellness Corp. the outstanding $5,591,588 in expenditures that Captiva Verde Wellness Corp. has spent on the Sage Ranch real estate project in 48 equal monthly installments of $116,491 starting on July 1, 2024, with the last payment on June 1, 2028. Once the amount has been repaid, Captiva Verde Wellness Corp. will no longer have any further net profits interest in and to the Sage Ranch project. If we are unable to meet this ongoing obligation, Captiva Verde Wellness Corp. will continue to have a further net profits interest in and to the Sage Ranch project.
We will need additional capital for future operations and if we are not able to secure any required capital, we may be forced to curtail or discontinue our operations.
Although we expect that our existing funds, together with anticipated upcoming financings, will be sufficient to sustain our operations for the next 12 months, we cannot provide any assurance that we will not require additional financing during that period to provide working capital. Moreover, it is possible that costs associated with operating our business will exceed our projections. If adequate funds are not available on acceptable terms, we may be unable to develop or enhance our products and services, take advantage of future opportunities or respond to competitive pressures, any of which could have a material adverse effect on our business, financial condition and operating results, or we may be forced to curtail or cease our operations.
The Company's development and construction activities are subject to material risks, including expenditures for projects that may prove not to be viable, construction cost overruns and delays, or other factors.
Material delays or cost overruns could be incurred by the Company and its development and construction projects as a result of vendor or contractor non-performance, technical issues with the interconnection utility, disputes with landowners or other parties, severe weather and other causes.
The Company's construction activities relating to its projects - in particular, those related to utility and power generation - utilize a variety of products and materials. The cost to the Company of such products and materials may be impacted by a number of factors beyond the Company's control, including their general availability and the impact of tariffs and duties imposed by various governmental authorities. There is generally no such recovery mechanism available for such costs. The financial condition and results of operations of the Company may be impacted as a result.
The Company's development of the Montalva Solar Project are subject to material risks, including certain estimates about the strength and consistency of the solar radiance at its location, and other factors, that are beyond the Company's control.
The Company's plans include the development and construction of the Montalva Solar Project, a proposed solar and battery photovoltaic renewable solar electricity generating facility to be located in Puerto Rico. The Company's assessment of the feasibility, revenues and profitability of the Montalva Solar Project depends upon estimates regarding the strength and consistency of the solar radiance and other factors which are beyond the Company's control. If weather patterns change or actual data proves to be materially different than estimates, the amount of electricity to be generated by the facility, and resulting revenues and profitability, may differ significantly from expected amounts.
The Company's development of the Montalva Solar Project has not been approved by the Puerto Rico Financial Oversight and Management Board, and there is no assurance that such approval can be obtained on terms acceptable to the Company, or at all.
The initial phase of the Montalva Solar Project would be developed under a revised 80 MW AC Power Purchase and Operating Agreement between the Company and the Puerto Rico Energy Power Authority dated May 28, 2020. On August 7, 2020, the Company received unanimous approval from the Puerto Rico Energy Bureau, and the Agreement was submitted for final approval by the Puerto Rico Financial Oversight and Management Board. On February 26, 2021, the Puerto Rico Financial Oversight and Management Board approved two projects but excluded the approval of the Montalva Solar Project. The Company submitted a new application to the Financial Oversight and Management Board to approve the Montalva Solar Project, and the Company and the Puerto Rico Energy Power Authority worked to resolve the outstanding issues before the Puerto Rico Energy Bureau. On October 4, 2023, the Company announced that, following many years of litigation with the Puerto Rico Energy Power Authority in both the Commonwealth and US Federal Courts, plus litigation before the Puerto Rico Energy Bureau, both parties have executed a formal settlement agreement which proposes to approve the revised 80 MW AC Power Purchase and Operating Agreement. The agreement is with the Puerto Rico Financial Oversight and Management Board for approval. There is no assurance that the approval of the Puerto Rico Financial Oversight and Management Board will be forthcoming on terms acceptable to the Company or the Puerto Rico Energy Power Authority, or at all. If the Puerto Rico Financial Oversight and Management Board rejects the new settlement agreement, the Company intends to seek review of that decision by the United States District Court for the District of Puerto Rico. However, there is no assurance that the District Court will rule in the Company's favor.
In connection with our planned Montalva Solar Project, we have entered into four land lease option agreements in Puerto Rico, the respective terms of which have been extended to December 31, 2024. If the development of the Montalva Solar Project is delayed beyond that date, and we are not successful in negotiating further extensions, we would be required to identify and lease an alternative site. If we are unable to do so, we would be prevented from proceeding with the Montalva Solar Project.
In connection with our planned Montalva Solar Project, we have entered into four land lease option agreements in Puerto Rico (which we refer to in this registration statement as the “Montalva and Lajas Option Agreements”) covering two sites located in close proximity that can be developed as a single project of 100MW AC or five projects of 20MW AC. Since entering into the Montalva and Lajas Option Agreements, we have negotiated extensions of the terms of the agreements several times. Most recently, the Montalva and Lajas Option Agreements were to have expired on December 31, 2023, but have been extended to December 31, 2024. If the development of the Montalva Solar Project is delayed beyond that date, and we are not successful in negotiating further extensions of the Montalva and Lajas Option Agreements on terms that are acceptable to us, we would have to identify an alternative site suitable for the Montalva Solar Project. There is no assurance that we would be able to identify an alternative site, or that we would be able to lease any site that we do identify on terms that are acceptable to us. In either case, we would be prevented from proceeding with the Montalva Solar Project.
The Company and its planned projects, operations and personnel will be exposed to the effects of severe weather, natural disasters, diseases, and other catastrophic and force majeure events beyond the Company's control, as well as those that may be caused by climate change, and such events could result in a material adverse effect on the Company.
The Company's planned real estate development and renewable energy projects and operations will be exposed to potential interruption and damage, and partial or full loss, resulting from environmental disasters, seismic activity, equipment failures and the like. There can be no assurance that in the event of an earthquake, hurricane, tornado, fire, flood, ice storm, tsunami, typhoon, terrorist attack, cyber-attack, act of war or other natural, manmade or technical catastrophe, all or some parts of the Company's planned projects and infrastructure systems will not be disrupted. In particular, the occurrence of a significant event which disrupts the ability of the Company's planned power generation assets to produce or sell power for an extended period could have a material negative impact on the Company's business. The Company's real estate and renewable energy assets could be exposed to effects of severe weather conditions, natural and man-made disasters and potentially other catastrophic events. The occurrence of such an event may not release the Company from performing its obligations pursuant to agreements with third parties.
An outbreak of infectious disease, a pandemic, or a similar public health threat, or a fear of any of the foregoing, could adversely impact the Company by causing operating, supply chain and project development delays and disruptions, labour shortages and shutdowns (including as a result of government regulation and prevention measures), and increased costs to the Company.
Climate change is predicted to lead to increased frequency and intensity of weather events and related impacts such as storms, wildfires, flooding and storm surge. Extreme weather events create a risk of physical damage to the Company's real estate and renewable energy assets. High winds can damage structures, and cause widespread damage to transmission and distribution infrastructure. Increased frequency and severity of weather events increases the likelihood that the duration of power outages and fuel supply disruptions could increase.
The potential impacts of climate change, such as rising sea levels and larger storm surges from more intense hurricanes, can combine to produce greater damage to power generation and other facilities located in coastal areas, such as our Montalva Solar Project. Although the project is planned to be constructed, operated and maintained to minimize such damage, there can be no assurance these measures will fully mitigate the risk.
Climate change is also characterized by increases in global air temperatures. Increased air temperatures could also result in decreased efficiencies over time of both generation and transmission facilities.
These and other operating events and conditions could result in service and operational disruptions and may reduce our revenues, increase costs or both, and may materially affect our business, results of operations, financial position, valuation and cash flows, particularly if a situation is not resolved in a timely manner or the financial impacts of restoration are not alleviated through insurance policies or regulated rate recovery.
Energy generated by the Montalva Solar Project, if completed, will be sold under a long-term power purchase agreement which will be subject to a number of conditions, the failure by the Company to comply with which could result in termination of the agreement. Any such termination could have a material adverse effect on the Company's results of operations and financial position.
Energy generated by the Montalva Solar Project, if completed, will be sold under a long-term power purchase agreement. This agreement contains customary terms including: the amount paid for energy from the project over the term of the agreement (which rate can be materially higher than prevailing market rates) and a requirement for the project to comply with technical standards and to achieve commercial operation within time frames prescribed by the contract. A failure to achieve satisfactory construction progress and/or the occurrence of any permitting or other unanticipated delays at a project could result in a failure to comply with the applicable agreement requirements within the specified time frames. Remedies for failure to comply with material provisions of the agreement generally include, among other things, the potential termination of the agreement by the non-defaulting party. Any such termination could have a material adverse effect on the Company's results of operations and financial position.
Our ability to develop our real estate and renewable energy projects depends on our ability to raise the necessary capital.
Our continued access to capital, through equity financing, project financing, credit facilities or other arrangements with acceptable terms is necessary for the development of our Sage Ranch real estate project and our Montalva Solar Project. Our attempts to secure the necessary capital may not be on favorable terms, or successful at all. In addition, debt financing, if available, may involve restrictive covenants. Our ability to arrange for financing on favorable terms, and the costs of such financing, are dependent on numerous factors, including general economic and capital market conditions, investor confidence, the continued success of current projects, the credit quality of the project being financed and the continued existence of tax laws which are conducive to raising capital. Our inability to raise capital, including on favourable terms, could have a material adverse effect on our growth prospects and financial condition.
Any additional equity financing that we may be required to obtain will be dilutive to our shareholders.
If we are unable to secure capital for our projects through credit facilities or other arrangements, we may have to finance our projects using equity financing which would have a dilutive effect on our Common Shares. We also anticipate that we may need to raise equity financing in the future to provide working capital. Any additional equity financing may be dilutive to shareholders. If additional funds are raised through the issuance of equity securities, the percentage ownership of our shareholders will be reduced, or shareholders may experience additional dilution in net book value per share.
Our Montalva Solar Project will be at financing risk if the project fails to satisfy tax incentive requirements or to meet third-party financing requirements.
The Company expects that it will rely on financing from third party tax equity investors to partially finance the construction of the Montalva Solar Project, the participation of which depends upon qualification of the project for U.S. tax incentives and satisfaction of the investors' investment criteria. These investors typically provide funding upon commercial operation of the facilities in which they invest. Should the Montalva Solar Project fail to meet the conditions required for tax equity funding, returns from the facility expected by such investors may be adversely impacted and the investors may decline to continue financing the project.
Financial leverage and restrictive covenants contained in agreements to which we might become a party may restrict our future indebtedness and limit future business dealings.
We expect that any project financing entered into for the development of our Sage Ranch real estate project and our Montalva Solar Project, will make us subject to contractual restrictions governing our future indebtedness. The degree to which we and our subsidiaries are leveraged could have important consequences to shareholders, including: (i) our ability to obtain additional financing for working capital, capital expenditures, acquisitions or other project developments may be limited; (ii) a significant portion of our future cash flows from operations may be dedicated to the payment of the principal of and interest on this indebtedness, thereby reducing funds available for future operations; and (iii) we may be more vulnerable to economic downturns and be limited in their ability to withstand competitive pressures. We expect to be made subject to operating and financial restrictions through covenants in customary loan and security agreements. These restrictions would usually prohibit or limit our, or our subsidiaries', ability to, among other things, incur additional debt, provide guarantee for indebtedness, create liens, dispose of assets, liquidate, dissolve, amalgamate, consolidate or effect any corporate or capital reorganization, make distributions or pay dividends, issue any equity interests and create subsidiaries. These restrictions may limit our and our subsidiaries' ability to obtain additional financing, withstand downturns in our business and take advantage of business opportunities. If we or a subsidiary defaults in respect of its obligations under any of the loan agreements, including without limitation servicing existing indebtedness, or to refinance any such indebtedness, lenders may be entitled to demand repayment and enforce their security against certain projects or other assets.
The Company's planned power generation facilities, utility systems and other assets involve a variety of risks customary to the power and utilities sector which, if they materialize, could disrupt or adversely affect its business, results of operations, financial position and cash flows.
The Company's ability to safely and reliably operate, maintain, construct and decommission (as applicable) its planned power generation facilities, utility systems and other assets involve a variety of risks customary to the power and utilities sector, many of which are beyond the Company's control, including those that arise from:
• casualty or other significant events such as fires, explosions, security breaches or drinking water contamination;
• commodity supply and transmission constraints or interruptions;
• workplace and public safety events;
• loss of key personnel;
• labour disputes;
• employee performance/workforce effectiveness;
• improper or erroneous acts of employees;
• demand (including seasonality);
• loss of key customers;
• reduction in the price received for services;
• reliance on transmission systems and facilities operated by third parties;
• land use rights/access;
• critical equipment breakdown or failure;
• lower-than-expected levels of efficiency or operational performance;
• acts by third parties, including cyber-attacks, criminal acts, vandalism, war and acts of terrorism;
• projects with a limited operating history;
• opposition by external stakeholders, including local groups, communities and landowners;
• commodity price fluctuations;
• lower prices for alternative fuel sources; and
• the Company's reliance on subsidiaries.
These and other operating events and conditions could result in service and operational disruptions and may reduce the Company's revenues, increase costs or both, and may materially affect its business, results of operations, financial position, valuation and cash flows, particularly if a situation is not resolved in a timely manner or the financial impacts of restoration are not alleviated through insurance policies or regulated rate recovery.
It is costly to construct solar power facilities and bring them into commercial production.
Before the sale of any power can occur, we must construct all the necessary infrastructure to produce power, including a power plan, battery storage system and a transmission line. Considerable construction and administrative costs will need to be incurred before any revenue from power sales is received. To fund expenditures of this magnitude, we will need to seek additional financing and sources of capital. There can be no assurance that additional capital can be found and, even if found, the Company may still have to substantially reduce its interest in the project if the amount of additional capital proves to be inadequate.
It is costly to construct and sell residential real estate developments.
Before the sale of any home at Sage Ranch, we must construct all the necessary infrastructure, including streets, traffic signals, dry and wet utilities, sewer and drainage, and then construct homes after buyers are identified. Considerable construction and administrative costs will need to be incurred before any revenue from home sales is received. To fund expenditures of this magnitude, we may need to seek additional financing and sources of capital. There can be no assurance that additional capital can be found.
The Company is dependent on its operating subsidiaries.
The Company is a holding company with no business operations of its own or material assets other than the shares of its subsidiaries. Accordingly, all of its operations are conducted by indirect subsidiaries. As a holding company, the Company requires dividends and other payments from its subsidiaries to meet cash requirements. While the Company anticipates that its subsidiaries will have sufficient cash flow to enable such subsidiaries to pay dividends or otherwise distribute cash, the terms of loan and security agreements may contain restrictions on the ability of subsidiaries to pay dividends and otherwise transfer cash or other assets in certain circumstances. As such, a decline in the business, financial condition, cash flows or results of operation of any of the Company's subsidiaries may result in restrictions on such subsidiaries' ability to pay dividends or otherwise distribute cash.
Housing prices are subject to fluctuations that are beyond the Company's control.
The market price for housing can be volatile. If the price should drop significantly, the economic prospects of the Company's Sage Ranch real estate project could be significantly reduced. If the cost of constructing each home exceeds the price the market can support, then the construction of new homes will have to cease and be resumed if the market price exceeds the construction costs.
Environmental and other regulatory requirements may add costs and uncertainty.
The Company's existing and planned operations require licenses and permits from various governmental authorities, and such operations are and will be subject to laws and regulations governing development, taxes, labor standards, occupational health, waste disposal, toxic substances, land use, environmental protection, project safety and other matters. The Company can experience increased costs, and delays in production and other schedules, as a result of the need to comply with applicable laws, regulations, licenses and permits. There is no assurance that all approvals or required licenses and permits will be obtained. Failure to comply with applicable laws, regulations, licensing or permitting requirements may result in enforcement actions, including orders issued by regulatory or judicial authorities causing operations to cease or be curtailed, and may include corrective measures requiring capital expenditures, installation of additional equipment or remedial actions. The Company may be required to compensate those suffering loss or damage by reason of its activities, and may have civil or criminal fines or penalties imposed upon it for violations of applicable laws or regulations.
Applicable laws and regulations, including environmental requirements and licensing and permitting processes, may require public disclosure and consultation. It is possible that a legal protest could be triggered through one of these requirements or processes that could delay, or require the suspension of the development of our real estate or renewable energy projects, or the operation of our renewable energy projects, and increase the Company's costs.
No assurance can be given that new laws and regulations will not be enacted or that existing laws and regulations will not be applied in a manner that could limit or curtail the Company's development or operation of our planned projects. Amendments to current laws, regulations, licenses and permits governing operations, or more stringent implementation thereof, could have a material adverse impact on the Company and cause increases in capital expenditures or production costs, or reduction in levels of production.
There can be no assurance that existing permits will be renewed or that new permits required to advance or operate our planned projects will be granted.
The Company's operations are required to maintain permits issued by governments and agencies that govern overall facility construction or operations. If the Company is unable to renew existing permits or obtain new permits, then there may be adverse effects, such as loss of revenue and/or capital expenditures to enable long-term operations, potentially under different operating profiles.
The Company's officers and directors may have conflicts of interest arising out of their relationships with other companies.
Several of the Company's directors and officers serve (or may agree to serve) as directors or officers of other companies, or have significant shareholdings in other companies. To the extent that such other companies may participate in ventures in which the Company participates, the directors and officers may have a conflict of interest in negotiating and concluding terms respecting the extent of such participation, or in resolving disputes that may arise between the Company and the other companies. Although our officers and directors are subject to certain fiduciary duties to our Company under applicable corporate law, they will not necessarily be required to give the Company consideration with respect to every opportunity of which they may become aware. Although the Company is not aware of any specific conflicts of interest involving any of its directors or officers at the present time (other than the involvement of Messrs. Ciachurski, Balic and Boyd in Captiva Verde Wellness Corp., as discussed below), there is a possibility that our directors and/or officers may be in a position of conflict in the future.
Our chief executive officer and our chief financial officer also serve as executive officers of Captiva Verde Wellness Corp., which is a party to a former joint venture with our Company that has recently been settled in relation to the Sage Ranch Real Estate Project, and one of our directors also serves as a director of that company, which could adversely affect their respective abilities to act impartially and in the best interests of our Company should a dispute arise between the Company and Captiva Verde Wellness Corp.
Jeffrey Ciachurski, our Company's chief executive officer, is also the chief executive officer of Captiva Verde Wellness Corp., a Canadian public company listed on the Canadian Securities Exchange which is party to a former joint venture with our Company that has recently been settled in relation to the Sage Ranch Real Estate Project, As part of the settlement of the joint venture, we will pay Captiva Verde Wellness Corp. the outstanding $5,591,588 in expenditures that Captiva Verde Wellness Corp. has spent on the Sage Ranch real estate project in 48 equal monthly installments of $116,491 starting on July 1, 2024, with the last payment on June 1, 2028. Once the amount has been repaid, Captiva Verde Wellness Corp. will no longer have any further net profits interest in and to the Sage Ranch project. Our Company's chief financial officer, Anthony Balic, also serves as the chief financial officer of Captiva Verde Wellness Corp., and Michael Boyd serves as a director of both companies. In accordance with applicable corporate laws, the directors and officers of the Company are required to act honestly, in good faith and in the best interests of the Company. In addition, a director is required to abstain from voting in respect of any matter in which the director has a conflict of interest, after disclosing such interest. Given their involvement with Captiva Verde Wellness Corp., Messrs. Ciachurski, Balic and Boyd, may not be in a position to act impartially and in the sole best interests of the Company if a dispute were to arise between the Company and Captiva Verde Wellness Corp., whether in connection with the ongoing payments to Captiva Verde Wellness Corp. as part of the settlement of the joint venture or otherwise. In addition, the Company's ability to resolve any such dispute could be adversely affected if any of Messrs. Ciachurski, Balic or Boyd were required to abstain from negotiations between the parties or in any Company management or board decision-making in relation thereto.
Insurance policies may be insufficient to cover losses.
As protection against operating hazards, the Company intends to maintain insurance coverage against some, but not all, potential losses. The Company may not fully insure against all risks associated with its business either because such insurance is not available or because the cost of such coverage is considered prohibitive. The occurrence of an event that is not covered, or not fully covered, by insurance could have a material adverse effect on the Company's financial
Security breaches, criminal activity, theft, terrorist attacks, cyber-attacks and other threats or incidents relating to the Company's information security could directly or indirectly interfere with the Company's operations, could expose the Company or its customers or employees to risk of loss, and could expose the Company to liability, regulatory penalties, reputational damage and other harm to its business.
The Company relies upon information technology networks, systems and devices to process, transmit and store electronic information, and to manage and support a variety of business processes and activities. The Company also uses information technology systems to record, process and summarize financial information and results of operations for internal reporting purposes and to comply with financial reporting, legal and tax requirements. The Company's technology networks, systems and devices collect and store sensitive data, including system operating information, proprietary business information belonging to the Company and third parties, as well as personal information belonging to the Company's customers and employees.
The Company's or its third-party vendor's information systems and information technology networks, devices and infrastructure may be vulnerable to damage, disruptions or shutdowns due to attacks by hackers or breaches due to employee error or malfeasance, disruptions during software or hardware upgrades, telecommunication failures, theft, natural disasters or other similar events. In addition, certain sensitive information and data may be stored by the Company in physical files and records on its premises or transmitted to the Company verbally, subjecting such information and data to a risk of loss, theft and misuse. The occurrence of any of these events could impact the reliability of the Company's planned power generation facilities and planned utility distribution systems; could expose the Company, its customers or its employees to a risk of loss or misuse of information; and could result in legal claims or proceedings, liability or regulatory penalties against the Company, damage the Company's reputation or otherwise harm the Company's business.
The Company cannot accurately assess the probability that a security breach may occur or accurately quantify the potential impact of such an event. The Company can provide no assurance that it will be able to identify and remedy all cybersecurity, physical security or system vulnerabilities or that unauthorized access or errors will be identified and remedied.
The loss of key personnel, the inability to engage and retain qualified officers, and labor disruptions could adversely affect the Company's business, financial position and results of operations.
The Company's operations depend on the continued efforts of its officers. Engaging and retaining key personnel and maintaining the ability to attract new personnel are important to the Company's operational and financial performance. The Company cannot guarantee that any member of its management or any one of its key personnel will continue to serve in any capacity for any particular period of time or that any leadership transitions will be successful.
Certain events or conditions, such as an aging workforce, epidemic, pandemic or similar public health emergency, mismatch of skill set or complement to future needs, or unavailability of contract resources may lead to operating challenges, labor disruption and increased costs. The challenges the Company might face as a result of such risks include a lack of resources, losses to its knowledge base and the time required to develop new workers' skills. In any such case, costs, including costs for contractors to replace personnel, productivity costs and safety costs may rise. If the Company is unable to successfully attract and retain an appropriately qualified workforce, its financial position or results of operations could be negatively affected.
The maintenance of a productive and efficient labor environment without disruptions cannot be assured. In the event of a strike, work stoppage or other form of labor disruption, the Company would be responsible for procuring replacement labor and could experience disruptions in its operations and incur additional expense.
There is a risk that our leases will not be renewed.
The Company does not own all of the land on which its projects are located. Such projects generally are, and future projects may be, located on land occupied under long-term easements, leases and rights of way. We generally expect that our leases will be renewed. However, if we are not granted renewal rights, or if our leases are renewed subject to conditions which impose additional costs, or impose additional restrictions such as setting a price ceiling for energy sales, our profitability and operational activity could be adversely impacted. Our use and enjoyment of real property rights for our planned renewable energy facilities may be adversely affected by the rights of lienholders and leaseholders that are superior to those of the grantors of those real property rights to us.
The Company may experience critical equipment breakdown or failure, which could have a material adverse effect on the Company's financial condition, results of operations, liquidity, reputation and ability to make distributions
The Company's planned facilities will be subject to the risk of critical equipment breakdown or failure and lower-than-expected levels of efficiency or operational performance due to the deterioration of assets from use or age, latent defect and design or operator error, among other things. These and other operating events and conditions could result in service disruptions and, to the extent that a facility's equipment requires longer than forecasted down times for maintenance and repair, or suffers disruptions of power generation, distribution or transmission for other reasons, the Company's business, operating results, financial condition or prospects could be adversely affected. In addition, a portion of the Company's infrastructure will be located in remote areas, which may make access to perform maintenance and repairs difficult if such assets become damaged.
Disruption in the Company's supply chain may have a material adverse effect on the Company's business, results of operation, financial condition and cash flows.
The Company's ability to operate effectively is in part dependent upon timely access to equipment, materials and service suppliers. Loss of key equipment, materials and service suppliers, and the reputational and financial risk exposures of key vendors, could affect the Company's operations and execution and profitability of capital projects. Manufacturing and delivery delays could adversely affect its projects, including (a) causing a delay in completion of a project, or (b) adversely impacting the availability of tax equity or other financing.
Challenges to the Company's tax positions, and changes in applicable tax laws, could materially and adversely affect returns to the Company's shareholders.
The Company conducts business and files tax returns in several different tax jurisdictions. The Company regularly assesses its tax positions, as well as the likely outcomes of its tax positions, with the benefit of such advice from its professional tax advisers as management deems appropriate. However, any tax authority could take a position on tax treatment that is contrary to the Company's expectations, which could result in additional tax liabilities. In addition, changes in tax laws or regulations could negatively impact the Company's effective tax rate and results of operations.
The Company makes certain judgments, estimates and assumptions that affect amounts reported in its consolidated financial statements, which, if not accurate, may adversely affect its financial results.
In preparation of the Company's consolidated financial statements, management is required to make significant judgments, estimates and assumptions that affect the reported amounts of assets, liabilities, net earnings (if any) and related disclosures. Although management believes that the amounts reported in its consolidated financial statements are reasonable, some uncertainty is inherent in these judgments, estimates and assumptions. If any material amounts so reported are determined to be inaccurate due to errors in judgment, estimates or assumptions, this could have a material adverse effect on the Company's financial results.
The Company's operations are and will be subject to numerous health and safety laws and regulations that could adversely affect its business, financial condition and results of operations.
The operation of the Company's planned facilities will require adherence to safety standards imposed by regulatory bodies. These laws and regulations will require the Company to obtain approvals and maintain permits, undergo environmental impact assessments and review processes and implement environmental, health and safety programs and procedures to control risks associated with the siting, construction, operation and decommissioning of real estate and renewable energy projects. Failure to develop its projects or, in the case of the Company's renewable energy projects, to operate the facilities, in strict compliance with these regulatory standards may expose the Company to claims and administrative sanctions.
Health and safety laws, regulations and permit requirements may change or become more stringent. Any such changes could require the Company to incur materially higher costs than the Company has incurred to date or that it expects to incur in the future. The Company's costs of complying with current and future health and safety laws, regulations and permit requirements, and any liabilities, fines or other sanctions resulting from violations of them, could adversely affect its business, financial condition and results of operations.
The Company has a single customer for its Montalva Solar Project. The loss of that customer or the failure to secure new power purchase agreements or renew existing agreements could material adversely impact the Company.
All of the proposed output of the Montalva Solar Project is to be sold under a long-term power purchase agreement with a single purchaser obligated to purchase all of the output of the facility. The termination or expiry of that purchase agreement, unless replaced or renewed on equally favourable terms, would adversely affect the Company's results of operations and cash flows and increase the Company's exposure to risks of price fluctuations in the wholesale power market. If, for any reason, the purchaser of our power is unable or unwilling to fulfill their contractual obligations under the power purchase agreement, or if they refuse to accept delivery of power, our assets, liabilities, business, financial condition, results of operations and cash flow could be materially and adversely affected. External events, such as a severe economic downturn, could impair the ability of our customer to pay for electricity received.
The development and completion of the Montalva Solar Project will require the engagement of a third-party engineering, procurement and construction company that the Company will have to rely on to meet the construction timeline and milestones required by the project lenders.
The Company will hire a third-party engineering, procurement and construction ("EPC") company to build and complete the Montalva Solar Project. It is customary that such EPC companies post financial security in the form of cashable letters of credit to mitigate financial risk in the event the EPC company of record cannot complete the project in accordance with the construction timeline and milestones required by the project lenders, and it is determined that the EPC company must be replaced with another EPC company. There is no assurance that any such financial security would be adequate to fully mitigate this risk, or that it would be sufficient to facilitate the replacement of the defaulting EPC company with a suitable successor.
The development and completion of the Sage Ranch real estate project will require the engagement of a general contractor company that the Company will have to rely on to meet the construction timeline and milestones required by the project lenders.
The Company will hire a third-party general contractor ("GC") company to build and complete the Sage Ranch real estate project. It is customary that such GC companies post financial security in the form of cashable letters of credit to mitigate financial risk in the event the GC company of record cannot complete the project in accordance with the construction timeline and milestones required by the project lenders, and it is determined that the GC company must be replaced with another GC company. There is no assurance that any such financial security would be adequate to fully mitigate this risk, or that it would be sufficient to facilitate the replacement of the defaulting GC company with a suitable successor.
Risks Related to Financing
Our ability to finance our operations is subject to various risks, including the state of the capital markets.
We expect to finance the development and construction of our existing real estate and renewable energy projects, future acquisitions and other capital expenditures with debt, possible future issuances of equity, capital recycling, and, once we achieve revenues, cash generated from our operations. Our ability to obtain debt or equity financing to fund our existing operations and future growth is dependent on, among other factors, the overall state of the capital markets (as well as local market conditions, particularly in the case of non-recourse financings), operating performance of our assets, future electricity market prices, the level of future interest rates, lenders' and investors' assessment of our credit risk, and investor appetite for investments in real estate projects and renewable energy and infrastructure assets in general To the extent that external sources of capital become limited or unavailable or available on onerous terms, our ability to make necessary capital investments to construct new or maintain existing facilities will be impaired, and as a result, our business, financial condition, results of operations and prospects may be materially and adversely affected.
Current global financial conditions have been subject to increased volatility.
Current global financial conditions have been subject to increased volatility. If these increased levels of volatility and market turmoil continue, the Company's ability to obtain equity or debt financing in the future and, if obtained, on terms reasonably acceptable to it, and its operations, could be adversely impacted. In addition, the trading price of the Company's Common Shares could be adversely affected.
Risks Related to our Common Shares
If the share price of the Company's Common Shares fluctuates, investors could lose a significant part of their investment.
In recent years, the stock market has experienced significant price and volume fluctuations. This volatility has had a significant effect on the market price of securities issued by many companies for reasons unrelated to the operating performance of these companies. The market price of the Company's Common Shares could similarly be subject to wide fluctuations in response to a number of factors, most of which the Company cannot control, including:
• changes in securities analysts' recommendations and their estimates of the Company's financial performance;
• the public's reaction to the Company's press releases, announcements and filings with securities regulatory authorities, and those of its competitors;
• changes in market valuations of similar companies;
• investor perception of the Company's industry or prospects;
• additions or departures of key personnel;
• commencement of or involvement in litigation;
• changes in environmental and other governmental regulations;
• announcements by the Company or its competitors of strategic alliances, significant contracts, new technologies, acquisitions, commercial relationships, joint ventures or capital commitments;
• variations in the Company's quarterly results of operations or cash flows or those of other companies;
• operating results failing to meet the expectations of securities analysts or investors;
• future issuances and sales of the Common Shares of the Company; and
• changes in general conditions in the domestic and worldwide economies, financial markets or the mining industry.
The impact of any of these risks and other factors beyond the Company's control could cause the market price of the Common Shares to decline significantly. In particular, the market price for the Common Shares may be influenced by variations in electricity prices. This may cause the price of the Common Shares to fluctuate with these underlying commodity prices, which are highly volatile.
As a foreign private issuer, the Company is subject to different U.S. securities laws and rules than a domestic U.S. issuer, which may limit the information publicly available to shareholders.
The Company is a “foreign private issuer,” as such term is defined in Rule 405 under the United States Securities Act of 1933, as amended, and Rule 3b-4 under the United States Securities Exchange Act of 1934, as amended (the “U.S. Exchange Act”), and will be permitted to prepare its financial statements (including those contained in its annual reports filed under the U.S. Exchange Act on Form 20-F or, if available, on Form 40-F) in accordance with IFRS Accounting Standards, as issued by the International Accounting Standards Board. The Company’s financial statements therefore may not be comparable to financial statements of U.S. domestic companies, which are required to be prepared in accordance with United States generally accepted accounting principles. In addition, the Company will not be required to file quarterly reports on Form 10-Q or current reports on Form 8-K that a U.S. domestic issuer would file with the United States Securities and Exchange Commission (the “SEC”), although the Company will be required to file or furnish to the SEC the continuous disclosure documents that it is required to file in Canada under Canadian securities laws.
Furthermore, the Company's officers, directors, and principal shareholders will be exempt from the reporting and "short swing" profit recovery provisions of Section 16 of the U.S. Exchange Act. Therefore, the Company's shareholders may not know on as timely a basis when the Company's officers, directors and principal shareholders purchase or sell shares, as the reporting deadlines under the corresponding Canadian insider reporting requirements are longer.
As a foreign private issuer, the Company will also be exempt from the rules and regulations under the U.S. Exchange Act related to the furnishing and content of proxy statements. The Company will also be exempt from Regulation FD, which prohibits issuers from making selective disclosures of material non-public information. While the Company will comply with the corresponding requirements relating to proxy statements and disclosure of material non-public information under Canadian securities laws, these requirements differ from those under the U.S. Exchange Act and Regulation FD, and shareholders should not expect to receive the same information at the same time as such information is provided by U.S. domestic companies.
As an "emerging growth company" under applicable law, we will be subject to lessened disclosure requirements. Such reduced disclosure may make our common shares less attractive to investors.
We are an "emerging growth company" as defined in the SEC's rules and regulations, and we will remain an emerging growth company until the earlier of: (1) the last day of the fiscal year (a) following the fifth anniversary of the date of the first sale of our common equity securities pursuant to an effective registration statement under the U.S. Securities Act, (b) in which we have total annual gross revenue of at least US$1.07 billion or (c) in which we are deemed to be a large accelerated filer, which means the market value of our common shares that is held by non-affiliates exceeds US$700 million as of the prior June 30th; and (2) the date on which we have issued more than US$1.0 billion in non-convertible debt during the prior three-year period. For so long as we remain an emerging growth company, we are permitted and intend to rely on exemptions from certain disclosure requirements that are applicable to other public companies that are not emerging growth companies. These exemptions include:
• not being required to comply with the auditor attestation requirements under Section 404 of the Sarbanes-Oxley Act in the assessment of our company's internal control over financial reporting;
• not being required to comply with any requirement that has or may be adopted by the Public Company Accounting Oversight Board (PCAOB) regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements; and
Because of these lessened regulatory requirements, our shareholders would be left without information or rights available to shareholders of more mature companies. If some investors find our Common Shares less attractive as a result, there may be a less active trading market for such securities and their market prices may be more volatile.
We will continue to incur increased costs as a result of operating as a U.S. public company, and our management will be required to continue to devote substantial time to compliance initiatives.
As a U.S. public company, and particularly after we are no longer an emerging growth company, we will incur significant legal, accounting and other expenses that we did not incur prior to the registration of our common shares as a class under section 12(g) of the Exchange Act. In addition, the Sarbanes-Oxley Act of 2002, and rules subsequently implemented by the SEC have imposed various requirements on public companies, including establishment and maintenance of effective disclosure and financial controls and corporate governance practices. Our management and other personnel will need to continue to devote a substantial amount of time to these compliance initiatives. Moreover, these rules and regulations have increased our legal and financial compliance costs and have made some activities more time-consuming and costly.
Pursuant to Section 404, we are required to furnish a report by our management on our internal control over financial reporting. However, while we remain an emerging growth company, we will not be required to include an attestation report on internal control over financial reporting issued by our independent registered public accounting firm. To comply with Section 404, we must document and evaluate our internal control over financial reporting, which is both costly and challenging. In this regard, we will need to continue to dedicate internal resources, potentially engage outside consultants and adopt a detailed work plan to assess and document the adequacy of internal control over financial reporting, continue steps to improve control processes as appropriate, validate through testing that controls are functioning as documented and implement a continuous reporting and improvement process for internal control over financial reporting. Despite our efforts, there is a risk we will not be able to conclude within the prescribed timeframe that our internal control over financial reporting is effective as required by Section 404. This could result in an adverse reaction in the financial markets due to a loss of confidence in the reliability of our financial statements.
The issuance of additional equity securities may negatively impact the trading price of Common Shares.
The Company may issue equity securities to finance its activities in the future. In addition, outstanding options or warrants to purchase the Common Shares may be exercised, resulting in the issuance of additional Common Shares. The issuance of additional equity securities or a perception that such an issuance may occur could have a negative impact on the trading price of the Common Shares.
ITEM 4. INFORMATION ON THE COMPANY
A. History and development of the Company
We were incorporated on April 2, 2009, under the laws of the Province of British Columbia, Canada pursuant to the Business Corporations Act (British Columbia) under the name "Greenbriar Capital Corp." Effective on November 15, 2023, we changed our name to "Greenbriar Sustainable Living Inc."
Our head office is located at, and our principal address is, 632 Foster Avenue Coquitlam, British Columbia, Canada V3J 2L7. Our registered and records office is located at Suite 1500 - 1055 West Georgia Street, Vancouver, BC V6E 4N7.
On September 18, 2009, we completed our initial public offering and our Common Shares were listed on the TSX Venture Exchange (the "TSXV"). We were initially listed as a "Capital Pool Company" (or "CPC") under the policies of the TSXV - that is, a newly-created company with no assets, other than cash, and no established business plan, and listed on the TSXV with the purpose of identifying and evaluating assets or businesses which, if acquired by means of a "Qualifying Transaction" (as defined in TSXV policies), would qualify the CPC for listing as a regular Tier 1 Issuer or Tier 2 Issuer on the TSXV. (Tier 1 is the TSXV's premier tier and is reserved for the TSXV's most advanced listed companies with the most significant financial resources.)
Our principal activity is the acquisition, development, operation and possible sale of commercial, residential, industrial, and renewable energy related real estate and energy projects in North America.
Our most advanced development project is Sage Ranch, a 995 unit entry level housing project, located on 138 acres of residential real estate located in Tehachapi, California, USA. As discussed in more detail below under the heading "Sage Ranch Sustainable Real Estate Development," our arm's length acquisition on September 27, 2011 of the vacant land which now comprises Sage Ranch was approved by the TSXV on October 6, 2011 as our Qualifying Transaction, and qualified us for regular listing on the TSXV as a Tier 2 real estate issuer.
On November 16, 2021 Greenbriar, acting through its subsidiary Greenbriar Alberta Holdco Inc. ("Greenbriar Alberta”), executed an agreement for long-term solar energy supply with West Lake Energy Corp. (“West Lake”), a privately-owned independent Canadian oil and gas producer based in Calgary, Alberta. Under the agreement’s terms Greenbriar will build, own and operate two solar energy production facilities capable of producing a total of up to 90 megawatts (MW) alternating current (AC) of solar energy, with the first solar site having a capacity for 30MW AC. West Lake agreed to purchase all solar power generated from the project and has the option to purchase from the second site which will provide the remaining 60MW AC. During the fiscal year ended December 31, 2023, the agreement terminated as a Power Purchase Agreement was not entered into.
We are also pursuing our Montalva Solar Project, a proposed solar and battery photovoltaic renewable generating facility, to be located in municipalities of Guanica and Lajas, Puerto Rico. However, as described in more detail below, the project has experienced delays and has been subject to ongoing disputes.
The initial phase of the Montalva Solar Project would be developed under a revised 80 MW AC Power Purchase and Operating Agreement (the "PPOA") between the Company and the Puerto Rico Energy Power Authority ("PREPA") dated May 28, 2020. On August 7, 2020, the Company received unanimous approval from the Puerto Rico Energy Bureau (the "PREB") and the Montalva PPOA moved on to final approval by the Puerto Rico Financial Oversight and Management Board (the "FOMB"). On February 26, 2021, the FOMB approved two projects but excluded the approval of the Montalva Solar Project. The Company submitted a new application to the FOMB to approve the Montalva Solar Project, and the Company and the PREPA worked to resolve the outstanding issues before the PREB. On October 4, 2023, the Company announced that, following many years of litigation with the PREPA in both the Commonwealth and US Federal Courts, plus litigation before the PREB, both parties have executed a formal settlement agreement beneficial to both parties and most importantly beneficial for the rate payers of Puerto Rico. The settlement agreement proposes to approve the PPOA and allows us to move forward with the Montalva Solar Project. The settlement agreement is with the FOMB for approval. There is no assurance that the approval of the FOMB will be forthcoming on terms acceptable to the Company or the PREPA, or at all. If the Puerto Rico Financial Oversight and Management Board rejects the new settlement agreement, the Company intends to seek review of that decision by the United States District Court for the District of Puerto Rico].
On January 25, 2021, the Company announced that it, acting through its subsidiary Greenbriar Alberta, had entered into a marketing partnership with Ridge Utilities Ltd., that envisioned the development of multiple microgeneration capacity for various commercial and agricultural sites across southern Alberta. During the fiscal year ended December 31, 2023, the parties mutually decided to terminate their marketing partnership in order to allow them to focus on their respective corporate priorities.
The following table summarizes the current status of our Sage Ranch sustainable real estate project and the Montalva Solar Project:
|
Project |
Current Status |
Next Steps |
|
Sustainable Real Estate Development Project - California |
||
|
Sage Ranch Sustainable Real Estate Project |
|
|
|
Renewable Energy – Puerto Rico |
||
|
Montalva Solar Project |
|
|
|
|
|
|
A real estate blockchain business we launched in November 2017 was sold (including the cancellation of certain royalty rights owed to us) in July 2019 for USD $229,000 cash and the cancellation of certain shares, options and share purchase warrants issued as payment to software developers.
Additional information related to us is available on SEDAR+ at www.sedarplus.ca and www.greenbriarliving.com. We do not incorporate the contents of our website or of sedarplus.ca into this Annual Report. Information on our website does not constitute part of this Annual Report. In addition, the SEC maintains an internet site that contains periodic reports, proxy and information statements (which are furnished to the SEC on Form 6-K, as we are not subject to SEC proxy solicitation rules), and other information regarding issuers that file electronically with the SEC which can be viewed as www.sec.gov.
B. General Description of Business
The Company's business focus is the acquisition, permitting, zoning, management, development and sale of commercial, industrial and sustainable residential real estate; plus the development, financing, construction and operation of renewable energy facilities in North America. Greenbriar is listed as a Tier 2 Issuer on the TSXV under the symbol "GRB".
Sage Ranch Real Estate Project
On September 27, 2011 the Company acquired real property in Tehachapi, California, USA as its Qualifying Transaction under the policies of the TSXV. The purchase price for the property was US $1,040,000 for an aggregate of 161 acres of which 133 acres comprised Sage Ranch, with an approval to be divided into 689 lots on 133 acres. The Company expanded this holding by 5 acres to 138 acres, and received final City Council approval on September 12, 2021 to build 995 homes. On November 26, 2019, we acquired the additional 5-acres from the County Government, for a total of 138 acres (collectively, the "Property"), in consideration for the transfer of the non-Sage Ranch parcel of 28 acres. The Property is held by the Company through its indirect, wholly-owned subsidiary, Greenbriar Capital (U.S.) LLC.
On October 1, 2017, the Company entered into an agreement with Captiva Verde Wellness Corp. ("Captiva") - then known as Captiva Verde Land Corp. - to sell a 50% undivided interest in the Property. Captiva is a Canadian public company whose common shares are listed for trading on the Canadian Securities Exchange under the symbol "PWR"; its common shares are also quoted on the OTC Pink Market under the symbol "CPIVF". The Chief Executive Officer of the Company, Jeffrey Ciachurski, is also the Chief Executive Officer of Captiva. On October 6, 2018, the Company completed the agreement and received 10,687,500 common shares of Captiva and $112,500 in a one-year interest-free promissory note (which has been paid) for total consideration of $1,181,250. On August 10, 2020, the Company modified its agreement with Captiva into a joint venture whereby the Company retained sole title to the Property and Captiva would fund all development expenditures for a 50% net profits interest.
On March 30, 2022, the Company executed a US$40,000,000 mandate agreement with Voya Investment Management (Voya IM), LLC ("Voya"), the asset management business of Voya Financial, Inc., for a senior secured construction loan for the construction of the 995 home Sage Ranch sustainable master planned community project in Tehachapi in Southern California. Voya will receive a bonus of 2 million (3-year) warrants at $1.25 per share at closing, or the same amount plus a US$1,000,000 cash break-up fee if we chose another lender. On April 2, 2024, Voya furnished a letter to the Company that does not constitute a commitment to lend but sets forth certain indicative terms and conditions upon which Voya will use commercially reasonable efforts to structure and provide the proposed financing.
On June 22, 2023 and amended on August 21, 2023, the Company entered into an agreement with Captiva whereby the Company will pay Captiva the outstanding $5,591,588 in 48 equal monthly installments of $116,491 starting on July 1, 2024, with the last payment on June 1, 2028. Once the amount has been repaid, Captiva will no longer have any further net profits interest in and to the Sage Ranch project.
Project Overview
Sage Ranch is being developed on the Property as a sustainable entry-level residential real estate development, and is the Company's most advanced development project. It is to be constructed under a Final Master Development Plan that emphasizes a responsible sustainable approach to the planned community. The following table summarizes the proposed features of Sage Ranch:
| Maximum total number of housing units | 995 |
| Proposed home construction | Mixture of single-family homes, townhomes, cottage homes and apartments |
| Average building size | Single family homes (between 1,650 and 2,500 square feet) Townhomes (between 1,250 and 1,550 square feet) Cottage homes (between 950 and 1,150 square feet) Apartments (2 stories; apartments between 780 and 1,280 square feet) |
| Land area | 138 acres |
| Total square footage of buildings | Approximately 1,600,000 square feet |
| Average density | 7.2 homes per acre |
The Property is located between the parallel arterial roads of Valley Boulevard and Pinon Street near Downtown Tehachapi. The site is within a half mile from the Tehachapi City Hall and central Tehachapi, and in close proximity to the historic downtown including many shops, restaurants, and public spaces in the general downtown district. The Property is also immediately adjacent to Tehachapi High School, Middle School and Elementary School. It is commonly considered as Urban Infill (new development that is sited on vacant or undeveloped land within an existing community) and located within the T4 Transect Neighborhood General zone as identified in the city zoning code. The T4 zone "is applied to Tehachapi's general neighborhood areas to provide for a variety of single-family and multifamily housing choices in a small-town neighborhood setting.
Tehachapi is located in the Tehachapi Valley within Kern County on the edge of the Mojave Desert and the Tehachapi Mountains, approximately 35 miles east-southeast of Bakersfield, California and within 20 miles from Los Angeles County. The location of the Property is identified in the map below:
Project Status
Sage Ranch is located in an area zoned for residential development. The Company has obtained approvals under the City of Tehachapi's Planned Development Zone requirements to accommodate the Sage Ranch's varied density and product types.
Planned Development Zoning requires a variety of approvals from the City Council. We received approval of our Preliminary Development Plan from the Planning Commission in February 11, 2019. In connection with approving the Preliminary Development Plan, the City Council unanimously approved the general project concept and intensity of land uses, subject to formal conditions of development.
We received City Council approval of our Final Master Development Plan, 995 home Tract Map and our Final Environmental Impact Report on September 12, 2021.
We have filed a Precise Development Plan ("Precise Plan") for the first phase of the development. A Precise Plan will be required for each of the project phases and approvals are expected to be granted assuming each Precise Plan is consistent with the previously-approved Final Master Development Plan. Approval of the Phase I Precise Plan was obtained on November 14, 2023, with the result that we may now apply for all the permits needed for construction to begin. We are planning to complete Sage Ranch in six phases over a period of approximately six years at the rate of between 142 to 204 homes per year.
Market Orientation
The Sage Ranch Final Master Development Plan provides for 995 total dwelling units at an overall gross density of 7.2 Homes/Acre. Eight different housing prototypes will be offered for sale ranging from 5,500 square foot single-family lots with 1,650 to 2,500 square foot homes to double story apartments at 780 square feet. The diversity of housing options within the community is expected to appeal to a broader demographic and broader spectrum income groups.
Design Elements
Sage Ranch is designed with a focus on "Complete Streets" running full length North/South and East/West to connected streets throughout the community versus the standard post-war suburban "within the fence" subdivision having non-contiguous streets and cul-de-sacs which can force a neighbor to travel half a mile by car to get to another home only 100 feet away on an opposing street. This allows multiple access points to traffic in all directions and smooth flow of traffic that do not rely on single access points which can create congestion. In addition, with the project being adjacent to the High School, Middle School, and Elementary School, the ability to be within a three block walk to all amenities offer a urban low carbon footprint living environment to a semi-rural mountain valley setting.
All streets are planned with curb-separated sidewalks and tree lined parkways adjacent to the roads. The intent is to create a strong street/tree character allowing abundant shade conditions. The vast majority of garages will be accessed through enhanced alley conditions, allowing architecture to front the streets with parallel guest parking directly in front of homes. Other special features will include a central theme road that ends in both directions from Valley Blvd and Pinon Street to a central park.
Parks and community amenities are part of the development. Community, neighborhood and pocket parks is proposed, including an approximate 4 acre sized central park located in the development. A community building is proposed to allow gathering functions with kitchen, meeting room and bathrooms.
Homes are all two-story maximum heights and approximately 10-15% of the homes will be one story. The architectural character for Sage Ranch will emphasize a regional and local vernacular. Basic tenants of the architecture will be oriented to front porch and entry court design, architecture fronting the streets, alley access garages, and special front elevations. All homes in the community have a majority of direct access two car garages, with a small percentage of one-car garages. Primary building materials will be wood, stone and stucco, with dominant porch front elevations and entry courtyards. Roof materials will likely be composition tile and asphalt, with some standing seam metal roofing.
Responsible Sustainable Approach
In compliance with new State of California policies, all homes will have solar roof panels and include energy savings devices, systems controls, and efficiency components. Water consumption will be reduced for parks and open space areas with reclaimed water connections to nearby non-potable water systems. Low flow irrigation technologies and drought tolerant landscaping will be promoted. Local materials will be sourced, with reclaimed materials promoted. Trash recycling will be included as a community standard with separate bins and receptacles. The intention is to create a community with an emphasis on conservation and sustainability with lower power, energy and water consumption.
Marketing and Sales
The Company has pre-marketed Sage Ranch to potential buyers. Once final development approvals are received, the Company will enter into purchase contracts with buyers and construction will commence only after a purchase agreement has been executed. We will apply for approval from the California Department of Real Estate to accept non-refundable deposits once all development approvals are acquired.
Under an Initial Master Sales and Marketing Agreement dated July 11, 2020, the Company has retained Paul Morris of Keller Williams Forward Living as Independent Head of Sales for Sage Ranch, to market and sell each housing unit in Sage Ranch, at prices and commissions yet to be determined. The target market for the homes sales are the entire region of Kern County and the parallel Antelope Valley of Los Angeles Country.
Construction
We have preliminarily retained Landmark Builders Group as our general contractor to build Sage Ranch under a verbal agreement. In due course, we will convert this to a definitive agreement.
Kern County and the Antelope Valley
Kern County is located in California. As of the 2010 census, the population as 839,631. Its county seat is Bakersfield. The following map shows the location of Kern County in California and the adjacent Antelope Valley.
|
Location in the state of California |
Kern County comprises the Bakersfield, California, Metropolitan statistical area. The county spans the southern end of the Central Valley. Covering 8,161.42 square miles (21,138.0 km2), it ranges west to the southern slope of the Coast Ranges, and east beyond the southern slope of the eastern Sierra Nevada into the Mojave Desert, at the city of Ridgecrest. Its northernmost city is Delano, and its southern reach extends just beyond Lebec to Grapevine, and the northern extremity of the parallel Antelope Valley.
The county's economy is heavily linked to agriculture and to petroleum extraction. There is also a strong aviation, space, and military presence, such as Edwards Air Force Base, the China Lake Naval Air Weapons Station, and the Mojave Air and Space Port. The county is one of the fastest-growing areas in the United States in terms of population.
Sage Ranch is a 40-minute drive from 1,000,000 people who live in Greater Bakersfield and Antelope Valley and a two hour drive from 25,000,000 people of Greater Metropolitan Los Angeles.
The principal regulator of the Sage Ranch project is the City of Tehachapi.
Competition
There are no similar projects like Sage Ranch within a 50-mile radius of the project.
Montalva Solar Project
Overview
The Montalva Solar Farm Project (the "Montalva Solar Project") is a proposed solar and battery photovoltaic ("PV") renewable solar electricity generating facility, to be located in the municipalities of Guanica and Lajas, Puerto Rico. At full buildout, the Montalva Solar Project will be an innovative (very high direct current (DC) to alternating current (AC) ratio) 395 megawatt (MW) DC and 165 MW AC PV station covering approximately 1,800 cuerdas (1,747 acres). The station will include a battery storage facility for up to four hours of evening and nighttime energy delivery.
Our plan calls for the Montalva Solar Project to be built in multiple phases, with the initial phase being for 160 MW DC (to be produced by the solar panels) and, after conversion, 80 MW AC. Upon completion of the initial phase, the station is expected to be capable of producing approximately 280,000,000 kilowatt hours of energy per year - enough power for at least 30,000 homes. We expect that commercial operations could commence a few weeks after completion of the construction of the facility.
Initial construction, consisting of road-building and foundations, was originally expected to be completed by Dec. 31, 2020, with completion of the first phase station originally scheduled for early 2022. However, as discussed in more detail below, this project has experienced delays and has been the subject of litigation.
The initial phase of the Montalva Solar Project would be developed under the PPOA between the Company and PREPA dated May 28, 2020. The PPOA has a 25-year term that would start on the commencement of commercial operations, with options to extend the agreement by mutual agreement for two additional five-year terms (for a total term of up to 35 years). The agreement additionally provides for increases in the power generating capacity by mutual agreement of the parties. The PPOA has been subject to litigation, and a settlement agreement with regards to the litigation has been entered into and is subject to approval of the FOMB, as further described in Item 4A above. The following table summarizes the key terms of the PPOA:
|
Subject |
PPOA Provision |
|
Term |
25 years with two five-year renewal periods |
|
Initial Interconnectivity Capacity |
80 MW |
|
Energy Tariff or Contract Rate |
Starting tariff at $0.088 per kW hour of energy delivered; deliveries above 115% of initial installed capacity at 80% of base price |
|
Requirement for Minimum Deliveries |
Penalties if production falls below 85% of the expected annual deliveries |
|
Reductions in Deliveries |
PREPA may curtail deliveries in emergencies or as a result of system operating problems |
|
Guaranteed Final Notice to Proceed Date |
365 days from the effective date |
|
Guaranteed Commercial Operation Date |
Within 22 months of the final notice to proceed date |
|
Green Credits |
Conveyed to PREPA with no additional charge under the Energy Tariff |
Currently, Puerto Rico relies heavily on imported fossil fuels to generate electricity. In accordance with the Puerto Rico Energy Public Policy Act enacted in 2019, Puerto Rico's Renewable Portfolio Standard (the "RPS") mandates that Puerto Rico source 40% of its electricity from renewables by 2025, 60% by 2040, and 100% by 2050. On August 24, 2020, the PREB issued a Resolution and Order approving a modified Integrated Resources Plan (the "IRP") for PREPA that, among other things, calls on PREPA to create a renewables procurement plan to obtain, by 2025, at least 3,500 MW of solar resources (inclusive of rooftop solar) and at least 1,360 MW of storage resources (inclusive of distributed storage). In addition, PREPA is relying on renewable generation to meet EPA requirements for the reduction of emissions of mercury, sulfur dioxide and greenhouse gases from its aging fossil-fueled electricity generating fleet.
Project Location
Location of the Montalvo Solar Project in Puerto Rico
Project Team
Greenbriar's project team members are experienced in the development, engineering, financing, construction and operation of large and highly successful renewable energy facilities, performing all aspects of land acquisition, project development, permitting, engineering, procurement, financing, operations and administration:
• Jeffrey Ciachurski, Greenbriar's CEO, is the former principal executive officer of Western Wind Energy Corp., which was acquired and merged with Brookfield Renewable Energy Partners in March 2013. Western Wind Energy developed, financed, owned and operated the 120 MW Windstar Wind Energy project in Tehachapi, California, and other solar and wind operating assets in Arizona and California. Western Wind Energy was also involved in the development of the Yabucoa Solar Project in Puerto Rico where $55 Million of equipment was purchased for Yabucoa.
• Clifford Webb, the president of Greenbriar, was formerly the Chief Engineer for the California Energy Commission, and was later directly involved in approving and awarding 2,500 MW of solar and wind contracts as a Director at Southern California Edison Company. He managed the development, permitting, engineering design and construction of the 355 MW Solar Luz SEGS plants constructed in the California, which was the world's largest solar facility at the time.
• In the past three years, the management team and certain advisors to the Company have built or been involved in the financing of 54 new solar, wind and geothermal facilities with other companies.
• Greenbriar's executive and finance team has financed and built over 50,000 MW of solar and wind facilities since 2003, totaling approximately $180 billion, with other companies.
History of Development and Project Overview
In May 2013 the Company acquired a 100% interest in and to PBJL Energy Company, ("PBJL") a Puerto Rican Company that owns a 100 MW solar energy Master Power Purchase and Operation Agreement (the "Master PPOA") with the PREPA dated December 20, 2011, as amended. The consideration for the 100% interest was USD $1,100,000 cash to two arm's length individuals for 66.6% of the shares of PBJL and a commitment to pay USD $500,000 cash to the spouse of a Director who transferred the remaining 33.4% on the same date in 2013.
In September and December 2013, the Company, acting through its subsidiary Greenbriar Capital (US) LLC, entered into four land lease option agreements in Puerto Rico (as amended, the "Montalva and Lajas Option Agreements"). The Montalva and Lajas Option Agreements are for two sites located in close proximity that can be developed as a single project of 100MW AC or five projects of 20MW AC. Since entering into the Montalva and Lajas Option Agreements, the Company has negotiated extensions of the terms of the agreements several times. The option agreements covering the sites were to have expired on December 30, 2021, but have been extended to December 31, 2023. All four option agreements comprising the Montalva and Lajas Option Agreements provide for a lease term of twenty-five years from the date of execution and may be extended for up to four additional consecutive periods of five-years each, at the Company's option.
On April 14, 2014, the Company entered into an agreement with the Land Authority of Puerto Rico to lease an additional 51 acres of land for the construction and operation of the interconnection transmission line for the Solar Facility. The lease agreement provides for a term of 30 years and can be extended for a longer term, at applicable commercial rates, by mutual agreement of the parties.
Under the terms of the Master PPOA, the Company filed its proposal for the 100 MW AC Montalva Solar Project with PREPA on September 5, 2013, requesting an interconnection evaluation and the issuance of a project specific PPOA for the project. In response to a request from PREPA, PBJL submitted a formal proposal to PREPA in May 2019 offering up to 165 MW AC with a larger footprint for the Montalva Solar Project. However, due to transmission constraints identified by PREPA's consultants, the Montalva Solar Project is currently configured to deliver 80 MW AC at the point of interconnection and with a solar field design of up to 160 MW DC.
After delays by PREPA, and in the face of PREPA's failure to respond to the Company's numerous requests for the outstanding interconnection evaluation and the issuance of a project-specific PPOA for the Montalva Solar Project, the Company filed a Notice of Default under the Master PPOA with PREPA on September 24, 2014. PREPA responded to the Notice of Default on November 3, 2014, taking the position that it had other PPOAs issued that would exceed its system renewable capacity and could not accept any additional renewable projects, and, further, that it had met its obligations under the Master PPOA.
On May 15, 2015, the Company filed a legal action against PREPA in the courts of Puerto Rico in order to protect and enforce its rights under the Master Agreement and for monetary damages of US$210 million. This was followed by the filing in May 2018 of a US Federal RICO lawsuit against PREPA for US$951 million. This filing was suspended as a result of PREPA approving the contract on May 28, 2020.
On April 25, 2018, the United States Financial Management and Oversight Board designated the (100 MW) Montalva Solar Project as a Critical Project and approved to proceed to the next stage of the approval process.
In response to a request from PREPA in February 2019, the Company met with PREPA representatives and re-opened negotiations with the view to moving forward with the Montalva Solar Project. On March 2, 2020, the Company received a revised PPOA from PREPA. On May 28, 2020, the Governing Board of PREPA approved a new 80 MW AC/160MWDC PPOA for PBJL. On August 7, 2020 the PREB approved the new PPOA.
On May 19, 2020, the Company announced that it has reached agreement with the PREPA on a 25-year PPOA for the development, construction, and operation of the 80MW to 160MW AC Montalva Solar Project. On August 7, 2020, the Company received unanimous approval from the PREB and the Montalva PPOA moved on to final approval by the FOMB.
N February 26, 2021, the FOMB approved two projects and excluded the approval of the Montalva Solar Project. The Company has submitted a new application to the FOMB to approve the Montalva Solar Project, and the Company and PREPA worked to resolve the outstanding issues before the PREB.
On October 4, 2023, the Company announced that, following many years of litigation with the PREPA in both the Commonwealth and US Federal Courts plus litigation before the PREB, the parties have executed a formal settlement agreement beneficial to both parties and most importantly beneficial for the rate payers of Puerto Rico. The settlement agreement proposes to approve the PPOA and allows us to move forward with the Montalva Solar Project. The settlement agreement remains subject to the approval of the FOMB.
The Site
Located in southwest Puerto Rico in the Municipalities of Guanica and Lajas adjacent to State Highway 116, the Montalva Solar Project will be located approximately four miles west of the city of Guanica and three miles west of the city of Ensenada. Approximately half of the site is in the Municipality of Guanica and half in the Municipality of Lajas straddling both sides of the dividing line between the municipalities. The lands comprising the Montalva Solar Project are a relatively flat coastal plain setting without wetlands or active streams are currently used primarily for cattle grazing and alpha growing.
The Montalva Solar Project is located in an area having among the highest solar irradiance and annual solar insolation in Puerto Rico and is located in an area generally protected from hurricanes by the interior mountains and the counter clockwise rotation of hurricanes making Montalva a superior location for development. It is likewise in a location of low annual cloud cover and rainfall.
An existing 115 kV PREPA transmission line traverses the project site. The site for the Montalva Solar Project is also approximately 18 miles from the Costa Sur 230 kV transmission lines and control center in Guayanilla.
The Montalva Solar Project is being developed on adjacent parcels of land totaling approximately 1,800 cuerdas (1,747 acres) that are covered by the Montalva and Laja Option Agreements. The site consists of three segments being:
• a segment located in the Municipality of Guanica just east of the dividing line separating the Municipalities of Guanica and Lajas, consisting of approximately 555 cuerdas,
• a segment located in the Municipality of Lajas adjacent to and west of the segment above and just west of the dividing line separating the Municipalities of Guanica and Lajas, consisting of approximately 720 cuerdas, and
• a segment located in the Municipality of Lajas adjacent to and north of the segment above in the Municipality of Lajas, consisting of approximately 524 cuerdas.
As described above, since entering into the Montalva and Lajas Option Agreements, the Company has negotiated extensions of the terms of the agreements several times. The option agreements were to have expired on December 31, 2023, but have been extended to various dates ranging from December 31, 2024 and December 31, 2025.
The results of site geotechnical investigations, completed with in situ borings by consultants retained by the Company, indicated that the site has excellent soils condition for foundations and supports and discovered no bedrock that would impede installation of supports for the panel racking structure. Based on the geotechnical investigation and site boring, the Company's consultant also concluded low probability of liquefaction during earthquake events making the site a secure location for critical infrastructure.
Design of the Facility
The Montalva Solar Project is being designed as a fixed-tilt solar field using state-of-the-art commercially available PV panels rated at approximately 400-450 watts DC at 1500 volts and 20.6% efficiency (Jinko Tallman TSM-DE17M(II) or equivalent). In addition to the solar panels and racking support system, the project is being designed incorporating commercially available equipment consisting of inverters, step-up transformers, combiner boxes, DC & AC cabling, collector substation, switchgear, circuit protection devices, substation transformer, interconnection switchyard and associated equipment. The commercially available equipment will be made subject to performance guarantees and long term warranties for the electrical design and delivery of grid quality power to the PREPA electrical system.
Preliminary optimization of project output has indicated a 2.00 DC to AC ratio resulting in an initial phase project size of 160 MW DC at 80 MW AC and up to 395 MW DC for full buildout of the 165 MW AC capacity, together with planned expansion to 100% nameplate (being the intended full-load output of the power facility - 395 MW DC and 165 MW AC) battery storage, in order to meet the demands of PREPA depending on the availability of transmission capacity and electrical system load flows. The initial phase design includes a battery energy storage system sized at 45% of nameplate to store daytime excess energy above the current transmission capacity available of 80 MW AC and to meet all of PREPA's minimum technical standards for frequency and ramp rate control for stability of the electrical grid due to intermittent generation of the solar field.
The initial design of the facility is expected to deliver 280,000,000 KW hours per year. Any unused DC capacity not used in the initial phase will be reserved for future buildout in order to incorporate 100 % nameplate on-site battery storage technology as such technology becomes cost effective, thereby maintaining the Montalva Solar Project at full rated output into the evening and nighttime hours after the solar system generation has decreased due to fading sunlight all with no increase required in available transmission capacity.
The Montalva Solar Project will connect to the existing 115 kV PREPA transmission line that traverses the site to feed power to the Puerto Rican electrical grid. The interconnection point will be an on-site tap or sectionalizer to be designed and constructed by PBJL. The Montalva Solar Project's close (18 miles) access to the Costa Sur 230 kV transmission lines and control center in Guayanilla will provide an opportunity for increased transmission capacity for the project over other locations and has the opportunity to provide superior reliability while minimizing transmission losses to load centers in San Juan. In addition, as part of the Montalva Solar Project, PBJL will be replacing the 7.38-mile segment of the 115 kV transmission line that runs from the project site to the San German Substation. The new segment is intended to improve previous transmission line instability, increase regional reliability and provide microgird connectivity in the event of natural disasters.
JRR Engineers of San Juan, Puerto Rico has engineered the project conceptual design and interconnection design for Montalva and prepared the Project Design and Interconnection Submittal submitted to PREPA.
With land available, the project can also be expanded to provide more peak output to PREPA when planned upgrades to the transmission system are made available and can accept higher capacity output from Montalva up to its planned 165 MW AC design. The PPOA has no limitations on the solar field size or size of the battery energy storage system. A distinct benefit of the Montalva is the efficient use of the transmission system. With incorporating battery storage at 45% of nameplate in the initial phase, the production of Montalva is equivalent as if the project were sized at 120 MW AC and thus saving valuable transmission capacity for future use.
Designing Montalva with high DC/AC ratios not only provides for excess energy during peak times for battery storage, but allows maximum use of the available transmission capacity during daylight hours than at lower ratios by quickly ramping to maximum rated output earlier in the day and maintaining the maximum rated output for longer periods after the peak of daytime solar irradiance has been reached. This allows for maximum throughput of kilowatt ("kW") per hour production for each kW of transmission capacity available. Solar panel output degradation due to clouds, low solar irradiance angles, temperature, soiled panels and natural degradation is also minimized and offset at higher DC/AC ratios for longer-term maximum generation providing less generation swings to the PREPA electrical system.
The design can deliver more than nameplate capacity at peak daytime hours when transmission capacity is available than lower DC/AC ratings. When not deliverable due to the transmission and interconnection constraints or contractual limitations, any excess capacity is either clipped by the inverter or can be stored in batteries for later delivery. Furthermore, adding PV modules (which are relatively cost-effective) to feed a specific sized inverter above a project's rated peak AC nameplate capacity can result in bringing the inverter up to its best efficiency earlier in the day and to the inverter's full capacity for longer periods of time as well as excess generation above the transmission capacity rating to charge battery storage systems for later delivery of the excess generation. Adding modules also offsets the effects and impacts of panel soiling, low solar irradiance angles as the sun passes overhead, passing clouds, reduced output due to temperature effects and degradation as the modules age. Having the facility at maximum output for longer periods of time should more than offset the higher cost of the panels, and the power losses due to clipping, when they occur, can be diverted to battery storage when available. The optimum solution with high DC/AC ratios is to store the excess for later delivery when transmission capacity is available.
A recently completed engineering design of the project site has indicated that, for the initial phase of 80 MW AC and battery storage, 42 solar array blocks of 400-watt panels rated at 3.875 MW DC for each block can be constructed on the two site segments south of Highway 116 for a total of 162.75 MW DC. The two site segments can be later expanded for a total of 70 solar arrays and a total of 271.25 MW DC. Preliminary design of the site segment north of Highway 116 can support 38 solar array blocks of 3.875 MW DC for an additional 124.00 MW DC. At full buildout, all three segments can support up to 395 MW DC of solar modules. Using 400-watt panels, the 395 MW would require 987,500 modules. The first phase of 160 MW DC will require 406,875 panels or modules rated at 400 watts each.
Having three multiple sites over a mile apart center to center provides greater reliability of generation due to separation and offer improved reliability as compared to smaller projects due to the time lapse for clouds to move over the site or to totally cover the site. With leased land available, extra panels will be added to absorb initial generation losses at peak output and will provide more hours of rated generation to PREPA for ease of generation dispatch of PREPA's on-line generation fleet thereby optimizing plant load factors.
Permitting
PBJL has conducted extensive environmental, cultural and archaeological studies and surveys of the project sites and prepared an Environmental Impact Statement (EIS) delineating the environmental setting, the existing socioeconomic setting and the potential construction and operational impacts of a total project size of 395 MW DC. The EIS likewise incorporated mitigation measures to compensate for impacts to flora and fauna and from activities associated with construction and operation of Montalva.
In addition to the environmental surveys conducted and the EIS prepared, PBJL has completed ALTA (American Land Title Association) surveys of both sites and has conducted a preliminary geotechnical investigation together with site borings.
Capital Costs and Financing
Greenbriar has a dedicated team that has been developing the Montalva Solar Project since 2012. A total of $5.5 million has been invested in developing the Montalva Solar Project through December 31, 2023, not including corporate management and overhead costs in excess of $1.0 million.
Project costs including financing costs, development fees, completion fees, O&M (operation and maintenance) reserves, spare parts and working capital will result in a total project cost of approximately $240 million. Final project costs will be dependent on the final cost of PV panels, batteries. Inverters and other major equipment at the exact date of purchase and the construction costs. The project cost estimate is based on prior hard bids and current estimates. The Company expects that it will raise capital for the Montalva Solar Project from the following traditional financing sources: project equity, corporate equity, tax equity, mezzanine capital, institutional debt, and bank debt. No determination has been made on the final form of financing. The following table is illustrative of the type of financing being considered:
• Senior Lender Term Loan $130,000,000
• Tax Equity Investor $ 74,000,000
• Mezzanine Capital $ 24,000,000
• Non-tax Cash Equity $ 12,000,000
• Total Project Cost $240,000,000
Principal ownership of Montalva will remain with Greenbriar and will be operated by Greenbriar or its direct subsidaries.
The Montalva Projects' principal regulator is the PREB. It is the designated regulator to resolve any conflicts between the project and PREPA.
Plan of Operations
Sage Ranch Real Estate Project
The Sage Ranch real estate project is our most advanced development project, and is being managed by Mr. Jeffrey Chiachurski, our chief executive officer. As described above, a Precise Plan will be required for each of the project phases and approvals are expected to be granted assuming each Precise Plan is consistent with the previously-approved Final Master Development Plan.
Phase 1 is planned to comprise 144 residential units (consisting of a mix of single-family homes, townhomes, cottage homes and apartments covering a total of 227,858 square feet, or "SF"). Approval of the Phase I Precise Plan was obtained on November 14, 2023, with the result that we may now apply for all the permits needed for construction to begin. Grading, storm, sewer and water permits for Phase 1 are anticipated to be received by May 31, 2024. We expect that a further two to three months will be required for the approval of permits for home construction.
The following table outlines the anticipated timeline for each of the six phases of development of the Sage Ranch real estate project:
|
Activity |
2024 |
2025 |
2026 |
2027 |
2028 |
2029 |
|
Pre-Construction and Permitting |
►►►► |
|
|
|
|
|
|
Phase 1 (227,868 SF and 144 units) |
►►►► |
|
|
|
|
|
|
Phase 2a and 2b (325,756 SF and 196 units) |
|
►►►► |
|
|
|
|
|
Phase 3 (300,266 SF and 142 units) |
|
|
►►►► |
|
|
|
|
Phase 4a (206,050 SF and 204 units) |
|
|
|
►►►► |
|
|
|
Phase 4b and 5 (365,533 SF and 183 units) |
|
|
|
|
►►►► |
|
|
Phase 6a and 6b (174,300 SF and 126 units) |
|
|
|
|
|
►►►► |
As described above, we are party to a joint venture with Captiva in relation to our Sage Ranch real estate project, pursuant to which Captiva had agreed to fund all development expenditures for a 50% net profits interest. We have agreed to settle our joint venture with Captiva, pursuant to which we will pay Captiva the outstanding $5,591,588 in expenditures that Captiva has spent on the Sage Ranch real estate project in 48 equal monthly installments of $116,491 starting on July 1, 2024, with the last payment on June 1, 2028. Once the amount has been repaid, Captiva will no longer have any further net profits interest in and to the Sage Ranch project. If we are unable to meet this ongoing obligation, Captiva will continue to have a further net profits interest in and to the Sage Ranch project.
Assuming that the development of the Sage Ranch real estate project is advanced in accordance with the anticipated timeline summarized above, we expect that the first sales of units will take place during the year ending December 31, 2024. We do not expect to earn any revenues from the project before then.
Montalva Solar Project
As described above, the initial phase of the Montalva Solar Project would be developed under a revised 80 MW AC Power Purchase and Operating Agreement between the Company and PREPA dated May 28, 2020. On August 7, 2020, the Company received unanimous approval from the PREB, and the Agreement was submitted for final approval by the FOMB. On February 26, 2021, the FOMB approved two projects but excluded the approval of the Montalva Solar Project. The Company has submitted a new application to the FOMB to approve the Montalva Solar Project, and the Company and PREPA worked to resolve the outstanding issues before the PREB. On October 4, 2023, the Company announced that, following many years of litigation with the PREPA in both the Commonwealth and US Federal Courts plus litigation before the PREB, both parties have executed a formal settlement agreement beneficial to both parties and most importantly beneficial for the rate payers of Puerto Rico. The agreement remains subject to the approval of the FOMB.
We have fully pre-paid the costs of advancing our negotiations with the FOMB before the PREB and finalizing our application for final FOMB approval. The timing for the resolution of the outstanding issues remains unclear, and there are no assurances that final FOMB approval can be obtained on terms acceptable to us, or at all. Mr. Clifford Webb, our Company's president has primary carriage of this matter.
Legal Proceedings
We are not involved in, or aware of, any legal or administrative proceedings contemplated or threatened by any governmental authority or any other party that is likely to have a material adverse effect on our business. As of the date of this Annual Report, no director, officer or affiliate is a party adverse to us in any legal proceeding or has an adverse interest to us in any legal proceeding.
C. Organizational structure
We have five subsidiaries: Greenbriar Capital Holdco Inc., a Delaware company; 2587344 Ontario Inc., an Ontario company; Greenbriar Capital (U.S.) LLC, a Delaware company; AG Solar One, LLC, a Delaware company; and PBJL Energy Corporation, a Puerto Rican company. We own 100% of the voting and dispositive control over all of our subsidiaries.
Note - On February 1, 2024, the Company dissolved Greenbriar Albert Holdco which was part of the organization as at December 31, 2023.
D. Property, plant and equipment
Sage Ranch
The Property underpinning the Sage Ranch Practice consists of a total of 143 acres of currently vacant land in Tehachapi, California, located between the parallel arterial roads of Valley Boulevard and Pinon Street near Downtown Tehachapi. The site is within a half mile from the Tehachapi City Hall and central Tehachapi, and in close proximity to the historic downtown including many shops, restaurants, and public spaces in the general downtown district.
On October 1, 2017, the Company entered into an agreement with Captiva to sell a 50% undivided interest in the Property. The Chief Executive Officer of the Company, Jeffrey Ciachurski, is also the Chief Executive Officer of Captiva. On October 6, 2018, the Company completed the agreement and received 10,687,500 common shares of Captiva and $112,500 in a one-year interest-free promissory note (which has been paid) for total consideration of $1,181,250. On August 10, 2020, the Company modified its agreement with Captiva into a joint venture whereby the Company retained sole title to the Property and Captiva would fund all development expenditures for a 50% net profits interest.
On June 22, 2023, the Company entered into an agreement with Captiva which was amended on August 21, 2023, whereby the Company will pay Captiva $5,591,588, which represents the amount that Captiva has invested into Sage Ranch, in 48 equal monthly installments of $116,491 starting on August 22, 2024, with the last payment on June 1, 2028. Subsequent to the amount being repaid, Captiva will no longer have any further net profits interest in and to the Sage Ranch Project.
Sage Ranch is being developed on the Property as a sustainable entry-level residential real estate development. It is to be constructed under a Final Master Development Plan that emphasizes a responsible sustainable approach to the planned community. We received final City Council approval on September 12, 2021 to build 995 homes.
The Company is planning to complete Sage Ranch in six phases over a period of approximately six years at the rate of between 142 to 204 homes per year. As described above under the heading "Sage Ranch Real Estate Project - Project Status," a Precise Plan will be required for each of the project phases and approvals are expected to be granted assuming each Precise Plan is consistent with the previously-approved Final Master Development Plan. Phase 1 is planned to comprise 144 residential units (consisting of a mix of single-family homes, townhomes, cottage homes and apartments covering a total of 227,858 SF). Approval of the Phase I Precise Plan was obtained on November 14, 2023, with the result that we may now apply for all the permits needed for construction to begin.
Montalva Solar Project
The Montalva Solar Project is being developed on adjacent parcels of land totaling approximately 1,800 cuerdas (1,747 acres) that are covered by the Montalva and Laja Option Agreements. The site consists of three segments being:
• a segment located in the Municipality of Guanica just east of the dividing line separating the Municipalities of Guanica and Lajas, consisting of approximately 555 cuerdas,
• a segment located in the Municipality of Lajas adjacent to and west of the segment above and just west of the dividing line separating the Municipalities of Guanica and Lajas, consisting of approximately 720 cuerdas, and
• a segment located in the Municipality of Lajas adjacent to and north of the segment above in the Municipality of Lajas, consisting of approximately 524 cuerdas.
As described above, since entering into the Montalva and Lajas Option Agreements, the Company has negotiated extensions of the terms of the agreements several times. The option agreements – which were to have expired on December 31, 2023 and have been extended to December 31, 2024. All four option agreements comprising the Montalva and Lajas Option Agreements provide for a lease term of twenty-five years from the date of execution and may be extended for up to four additional consecutive periods of five-years each, at the Company’s option.
ITEM 4A. UNRESOLVED STAFF COMMENTS
Not applicable.
ITEM 5. OPERATING AND FINANCIAL REVIEW AND PROSPECTS
General
The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our audited financial statements as at and for the fiscal years ended December 31, 2023, 2022 and 2021, together with the notes thereto. Our financial statements included in this Annual Report were prepared in accordance with IFRS.
The preparation of financial statements in conformity with these accounting principles requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent liabilities at the financial statement date and reported amounts of revenue and expenses during the reporting period. On an on-going basis we review our estimates and assumptions. The estimates were based on historical experience and other assumptions that we believe to be reasonable under the circumstances. Actual results are likely to differ from those estimates or other forward-looking statements under different assumptions or conditions, but we do not believe such differences will materially affect our financial position or results of operations. Our actual results may differ materially as a result of many factors, including those set forth under the headings entitled "Forward-Looking Statements" and "Risk Factors" herein.
Critical accounting policies, the policies we believe are most important to the presentation of our financial statements and require the most difficult, subjective and complex judgments, are outlined below under the heading "Critical Accounting Policies and Estimates", and have not changed significantly since our founding.
Overview
We were incorporated on April 2, 2009, under the laws of the Province of British Columbia, Canada, and our principal activity is the acquisition, permitting, re-zoning, management, development possible sale of commercial, residential, industrial, and renewable energy related real estate and energy projects in North America. On November 15, 2023, we changed our name to "Greenbriar Sustainable Living Inc." Our head office is located at, and our principal address is, 632 Foster Avenue Coquitlam, British Columbia V3J 2L7.
Additional information related us is available on SEDAR+ at www.sedarplus.ca and www.greenbriarliving.com. We do not incorporate the contents of our website or of sedarplus.ca into this Annual Report. Information on our website does not constitute part of this Annual Report.
To date, the Company has no history of earning revenues. If the Company is unable to raise any additional funds to undertake planned development, it could have a material adverse effect on its financial condition and cause significant doubt about the Company's ability to continue as a going concern. In the past, the Company has been successful in obtaining financing, although there is no assurance that it will be able to obtain adequate financing in the future or that such financing will be on terms advantageous to the Company.
A. Operating Results
Results of Operations for the Year ended December 31, 2023 as Compared to the Year Ended December 31, 2022 and to the Year Ended December 31, 2021
The Company had a net loss of $2,628,248 for the year ended December 31, 2023, compared to a net loss of $2,763,134 for the year ended December 31, 2022, and net loss of $9,325,226 in 2021. The decreased loss compared to 2022 was the result or lower marketing and donations offset by higher consulting fees and finance costs, no loss on disposition of shares or consulting fees recorded in the current year although there was a gain on settlement of accounts payable and gain on fair value of derivative liability. The decreased loss compared to 2021 was the result of lower marketing and donations, no bonus accrual and no unrealized loss of marketable securities in the current year.
| Year ended December 31, 2023 |
Year ended December 31, 2022 |
Year ended December 31, 2021 |
|||||||
| $ | $ | $ | |||||||
| Consulting and management fees | (620,682 | ) | (515,752 | ) | (4,058,133 | ) | |||
| General and administrative | (493,930 | ) | (478,126 | ) | (460,978 | ) | |||
| Marketing and donations | (61,614 | ) | (750,043 | ) | (760,887 | ) | |||
| Finance cost | (210,035 | ) | (34,130 | ) | (55,500 | ) | |||
| Professional Fees | (580,180 | ) | (539,228 | ) | (401,003 | ) | |||
| Share-based payment expense | (1,176,190 | ) | (954,465 | ) | (990,448 | ) | |||
| (3,142,631 | ) | (3,271,744 | ) | (6,726,949 | ) | ||||
| Foreign exchange (loss) gain | 134,068 | (324,349 | ) | (39,161 | ) | ||||
| Unrealized gain (loss) on marketable securities | - | 400,781 | (2,538,281 | ) | |||||
| Share of loss on investment in associate | - | (102,756 | ) | - | |||||
| Gain on settlement of accounts payable and accrued liabilities | 321,115 | 1,098 | 31,329 | ||||||
| Loss on shares for debt settlement | - | - | (52,164 | ) | |||||
| Gain on settlement of loans receivable | - | 774,000 | - | ||||||
| Interest income | 29,333 | 33,887 | - | ||||||
| Loss on disposition of shares | - | (2,093,851 | ) | - | |||||
| Other income | - | 1,819,800 | - | ||||||
| Transaction costs expensed on convertible debt | (87,781 | ) | - | - | |||||
| Fair value adjustment on derivative liability | 117,648 | - | - | ||||||
| Loss | (2,628,248 | ) | (2,763,134 | ) | (9,325,226 | ) | |||
| Other comprehensive gain (loss) | (380,197 | ) | 602,372 | 4,110 | |||||
| Net loss and comprehensive loss | (3,008,445 | ) | (2,160,762 | ) | (9,321,116 | ) | |||
| Basic/Diluted (loss) income per share | (0.08 | ) | (0.09 | ) | (0.34 | ) |
B. Liquidity and Capital Resources
| Consolidated Statement of Financial Position | |||||||||
| Year ended December 31, 2023 |
Year ended December 31, 2022 |
Year ended December 31, 2021 |
|||||||
| $ | $ | $ | |||||||
| Cash and cash equivalents | 47,098 | 24,950 | 9,273 | ||||||
| Current Assets | 2,550,909 | 1,918,143 | 1,819,364 | ||||||
| Total Assets | 22,110,851 | 15,053,130 | 10,436,177 | ||||||
| Current Liabilities | 9,029,429 | 5,573,985 | 6,183,832 | ||||||
| Total Liabilities | 13,112,699 | 5,573,985 | 6,183,832 | ||||||
The Company had a cash balance of $47,098 as of December 31, 2023. Cash outflow from operating activities was $2.2 million, compared to outflow of $2.5 million in 2022 and outflow of $2.0 million in 2021. The change in outflow was primarily attributable to decreased corporate activity during the current year.
Cash inflow from financing activities in the current year ended December 31, 2023, was $5.9 million which is the result of the Company receiving net funds of $386,000 from a private placement, receiving cash for option exercises in the amount of $379,500, issuing a $1,000,000 unsecured convertible debenture and a USD$3,000,000 unsecured convertible debenture private placement, and received additional loans of $109,580.
Cash outflow from investing activities in the current year ended December 31, 2023, was $3.6 million as the Company increased corporate activity in Sage Ranch.
C. Research and Development, Patents and Licenses, etc.
The company does not conduct any research or development and holds no patents or licenses.
D. Trend Information
Potential Impact of the COVID-19 Pandemic
In March 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus ("COVID-19") and resulted in governments worldwide enacting emergency measures to combat its spread. These measures, which included the implementation of travel restrictions, quarantine periods and physical distancing requirements, affected economies and disrupted business operations for the Company and its suppliers.
On May 5, 2023, the World Health Organization ended the global COVID-19 emergency. However, there is ongoing uncertainty regarding new and potential variants and continued global spread. The extent to which COVID-19 may impact the Company's business, including its operations, market for its securities and its financial condition, will depend on future developments which are highly uncertain and cannot be predicted at this time. The Company will continue to monitor and assess the impact of COVID-19 on its operations.
E. Critical Accounting Estimates
The preparation of the consolidated financial statements in conformity with IFRS requires management to make judgments and estimates and form assumptions that affect the reporting amounts of assets and liabilities at the date of the financial statements and reported amounts of revenues and expenses during the reporting period.
On an ongoing basis, management evaluates its judgments and estimates in relation to assets, liabilities, revenue, and expenses. Management uses historical experience and various other factors it believes to be reasonable under the given circumstances as the basis for its judgments and estimates. Actual outcomes may differ from these estimates under different assumptions and conditions. Revisions to estimates and the resulting effects on the carrying amounts of the Company's assets and liabilities are accounted for prospectively.
We did not have during the periods presented, and we do not currently have, any off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on our financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources.
Areas that often require significant management estimates and judgment are as follows:
Key areas of judgment
Functional currency
The functional currency for the Company and its subsidiaries is the currency of the primary economic environment in which each operates. The Company's functional and local currency is the Canadian dollar. The functional currency of the Company's subsidiaries is the US dollar. The determination of functional currency may require certain judgments to determent the primary economic environment. The Company reconsiders the functional currency used when there is a change in events and conditions which determined the primary economic environment.
Assets' carrying values and impairment charges
In determining carrying values and impairment charges the Company looks at recoverable amounts, defined as the higher of value in use or fair value less cost to sell in the case of assets, and at objective evidence that identifies significant or prolonged decline of fair value on financial assets indicating impairment. These determinations and their individual assumptions require that management make a decision based on the best available information at each reporting period.
Going concern of operations
These consolidated financial statements do not give effect to adjustments, if any, that would be necessary should the Company be unable to continue as a going concern. If the going concern assumption was not used, then the adjustments required to report the Company's assets and liabilities on a liquidation basis could be material to these financial statements.
Marketable securities
The determination of the fair value requires significant judgement by the Company, on the date of purchase, and at each reporting date thereafter, consistent with fair value accounting guidance in accordance with IFRS 13, Fair Value Measurement.
Tax
Uncertainties exist with respect to the interpretation of complex tax regulations and the amount and timing of future taxable income. Deferred tax assets are recognized for all unused tax losses to the extent that it is probable that taxable earnings will be available against which the losses can be utilized. Significant management judgment is required to determine the amount of deferred tax assets that can be recognized, based upon the likely timing and the level of future taxable earnings together with future tax planning strategies.
Key sources of estimation uncertainty
Share-based payments
Amounts recorded for share-based payments are subject to the inputs used in the Black-Scholes option pricing model, including estimates such as volatility, forfeiture, dividend yield and expected option life.
Convertible debentures
Convertible debentures are separated into their liability and equity components on the statement of financial position. The liability component is initially recognized at fair value, calculated as the net present value of the liability, using estimated interest rates based upon non-convertible debentures issued by comparable issuers, and accounted for at amortized cost using the effective interest rate method.
Derivative Liability
The Company measures the fair value of the derivative by reference to the fair value on the convertible debenture issuance date with an estimated life ending on the convertible debenture maturity date and revalues them at each reporting date. In determining the fair value for the derivative liability, the Company used the Geometric Brownain motion model with the following assumptions: annualized volatility rate; market price of shares at the reporting date; risk-free interest rate; the remaining expected life of the embedded derivatives and an exchange rate at the reporting date. Changes to these estimates could result in the fair value of the derivative liability being less than or greater than the amount recorded.
Joint venture settlement obligation
The liability is initially recognized at fair value, calculated as the net present value of the liability, using estimated interest rates based upon debt issued by comparable issuers, and accounted for at amortized cost using the effective interest rate method.
ITEM 6. DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES
A. Directors and Senior Management
| Name, Province/State and Country of Residence | Age | Position | Director/Officer Since | |||
| Jeffrey J. Ciachurski, British Columbia, Canada | 63 | Chief Executive Officer and Director | April 2, 2009 | |||
| Clifford M. Webb(1)(2)(3) , California, U.S. | 78 | President and Director | February 18, 2013 | |||
| Anthony Balic, British Columbia, Canada | 41 | Chief Financial Officer and Corporate Secretary | January 28, 2020(4) | |||
| Daniel Kunz, Idaho, U.S. | 71 | Director and Chairman of the Board | October 30, 2013 | |||
| J. Michael Boyd(1)(2)(3), Arizona, U.S. | 68 | Director | September 8, 2011 | |||
| William Sutherland(1)(2)(3), Ontario, Canada | 71 | Director | August 21, 2017 | |||
| Chris Harvey, New York, U.S. | 61 | Director | November 27, 2023 |
___________________________
Notes
(1) Member of the Audit Committee
(2) Member of the Compensation Committee
(3) Member of the Corporate Governance Committee
(4) On February 25, 2020, the Company appointed Anthony Balic as Chief Financial Officer and Corporate Secretary effective January 28, 2020.
Business Experience
The following summarizes the occupation and business experience during the past five years or more for our directors and executive officers as of the date of this Annual Report:
Jeffrey J. Ciachurski, Chief Executive Officer and Director
Mr. Ciachurski launched Greenbriar after a 11-year career as founder, CEO and Director of Western Wind Energy Corp, where he built a vertically integrated, renewable energy owner and operator which was then sold to Brookfield Renewable Energy Partners for $420 million in March 2013. Mr. Ciachurski established the operating and development assets in California, Arizona, and the Commonwealth of Puerto Rico and financially led and built over 165 MW of solar and wind production and 360 MW of advanced staged assets all wholly owned by the company. Mr. Ciachurski is currently the CEO and Director of the Company and spends approximately 70 percent of his working time with the Company, at a minimum of 40 hours per week. Mr. Ciachurski is also the CEO and Director of Captiva Verde Wellness Corp., but spends a lesser amount of time in that capacity. Captiva is an infrastructure company focused on the ownership of wellness infrastructure, pharmaceutical buildings, processing facilities and sustainable real estate. Mr. Ciachurski has been a director of Captiva since 2017. Mr. Ciachurski is also privately involved in real estate, sustainable technologies, and financial media as a private investor.
Clifford M. Webb, President and Director
Mr. Webb devotes a minimum of 40 hours per week to the Company. He is an experienced executive and engineering management professional with over 45 years of professional engineering experience and over 35 years of experience in utility-scale renewable energy. Mr. Webb has held executive positions at various renewable energy companies engaged in solar, wind, biomass, cogeneration and geothermal energy. Mr. Webb worked with utility-scale solar generation as Executive Vice President of Luz Development and Finance where Mr. Webb was directly responsible for the development, permitting and construction oversight of the Luz SEGS units, a large solar generating facility with over 300 MW of installed capacity. In addition, Mr. Webb has extensive utility experience both with Southern California Edison Company where he developed and managed its renewable energy procurement program and as a project developer negotiating utility power purchase and transmission interconnection agreements. Mr. Webb is also a former Division Chief of the Engineering and Environmental Siting Division of the California Energy Commission and was a nuclear advisor to Governor Jerry Brown including working directly with the Governor and representing the State of California at hearings before the Nuclear Regulatory Commission. Mr. Webb has a Bachelor of Science degree in Mechanical Engineering from University of California at Berkeley, various graduate studies in engineering at the University of Houston and Colorado State University and is a Registered Professional Engineer.
Anthony Balic, Chief Financial Officer and Secretary
Mr. Anthony Balic spends a minimum of 20 hours per week with the Company. Mr. Balic is Principal of Katuni Capital Corp., a private company providing corporate finance, accounting and capital advisory services to private and public companies and has worked in a range of senior roles during the past 15 years. He is the current CFO of Goldgroup Mining Inc. Fidelity Minerals Corp. and Lions Bay Capital Inc. Mr. Balic has also been the CFO of Captiva Verde Wellness Corp. since 2017.
Daniel Kunz, Chairman of the Board and Director
Mr. Daniel Kunz MBA, B.Sc. Eng. has more than 35 years of experience in areas of engineering, management, accounting, finance and operations. In 2014, Mr. Kunz founded and is currently managing member of Daniel Kunz & Associates, LLC an engineering services company in natural resources. He was Director, President and COO of Ivanhoe Mines Ltd. In 1998, Mr. Kunz led Ivanhoe into Mongolia where, in 2001 he was part of the team that discovered Oyu Tolgoi, one of the largest copper-gold deposits in the world. Mr. Kunz is founder, and from 2004 until April 2013 was President, CEO and Director, of U.S. Geothermal Inc., a renewable energy company acquired by Ormat Technologies in 2018 for an enterprise value of US$200 million. U.S. Geothermal Inc. developed, owns and operates 50 MW of base load power from three geothermal power plants. In 1993 as president, CEO and director, Mr. Kunz led the IPO of MK Gold Company on the NASDAQ, a gold company he co-founded with worldwide gold mining operations and production of some 200,000 ounces of gold per year from the mines it owned and operated. For 17 years, Mr. Kunz worked for and ultimately served as a senior executive of Morrison Knudsen Corp (now AECOM), including Vice President & Controller. Mr. Kunz is currently the CEO and Chairman of Prime Metals Corporation, a precious metals company. Mr. Kunz has been a director of Prime Metals since 2019.
In 1995, Mr. Kunz was named a Distinguished Alumni from the University of Montana Tech (formerly the Montana College of Mineral Science and Technology) and was a member of the advisory board for the Engineering Department at the University of Montana Tech. He currently serves on the board of directors of several public companies involved in natural resource development.
J. Michael Boyd, Director
Before joining Greenbriar Sustainable Living Inc., Mr. Boyd held the position of Executive Vice President of Development for Western Wind Energy Corp., until the company was purchased by Brookfield Renewable Energy Partners. He assisted Western Wind Energy in acquiring, leasing and zoning real estate suitable for the development of wind and solar farms in Arizona and California. In addition, Mr. Boyd served on the company's Board of Directors. Prior to joining Western Wind, he served as an elected member of the Central Arizona Water Conservation District, a large water utility in the state of Arizona and its biggest electrical consumer. Prior to that, Mr Boyd served two terms on the Pima County (Arizona) Board of Supervisors. Mr. Boyd has also been a director of Captiva Verde Wellness Corp. since 2017. Mr. Boyd graduated from UCLA.
William Sutherland, Director
Mr. William Sutherland was Vice President & Senior Managing Director at Manulife Financial where he headed the firm's Project Finance & Infrastructure Team. He and his team at Manulife have been leading arrangers and providers of debt and equity financing to the independent power sector for over 18 years. He is a seasoned corporate banker with over 37 years of business development, relationship management and corporate and project finance experience. Bill started as an analyst within The Bank of Nova Scotia's International Corporate Finance Group in 1980 where he focused on project finance. He later created and led project and corporate finance teams at Chase Manhattan Bank, Mitsubishi Bank and Deutsche Bank where he specialized in financing projects and mergers and acquisitions within the mining and metals, forestry, oil & gas, pipeline and power sectors. In 1998, Bill acted as a consultant to Barrick Gold Company as Barrick explored the possibilities of creating a mine finance business in competition with the major commercial banks. Bill joined Clarica Life Insurance Company in 1998 where he created and headed a project finance team dedicated to financing power and infrastructure projects in Canada. Following its success in the Canadian market, the group broadened its focus and became a pioneering and leading arranger and provider of financing to the Canadian and U.S. wind power industries. The team moved to Manulife in 2002 and since that time expanded its leadership role within the Canadian independent power and U.S. renewable power markets. Bill is a Professional Engineer (AEPO) and holds a BSc. (Mechanical Engineering) and MBA from Queen's University, Kingston.
Chris Harvey, Director
Mr. Harvey was previously CEO of JP Morgan Securities (part of JP Morgan Chase NYSE: JPM USD $4 Trillion AUM). Chris began his career at JP Morgan 39 years ago and helped build out the firm's overall investment banking capabilities. His roles included client banker, head of foreign exchange options, emerging markets derivatives, and then building an advisory and solutions team focused on corporate finance valuation, as well as tax and accounting efficiency. He was also responsible for reputational risk for the firm's investment bank in the Americas. After spending several years as the Chief Country Officer for Japan, Chris then ran the Wealth Management business for all of Latin America, with his final position as the CEO of JP Morgan Securities for four years.
Family Relationships
There are no family relationships among any of our directors and executive officers.
Term of Office
Each director of our company is to serve for a term of one year ending on the date of the subsequent annual meeting of stockholders following the annual meeting at which such director was elected. Notwithstanding the foregoing, each director is to serve until his successor is elected and qualified or until his death, resignation or removal. Our Board of Directors appoints our officers and each officer is to serve until his successor is appointed and qualified or until his or her death, resignation or removal.
Involvement in Certain Legal Proceedings
During the past ten years, none of our directors or executive officers have been the subject of the following events:
1. a petition under the Federal bankruptcy laws or any state insolvency law was filed by or against, or a receiver, fiscal agent or similar officer was appointed by a court for the business or property of such person, or any partnership in which he was a general partner at or within two years before the time of such filing, or any Company or business association of which he was an executive officer at or within two years before the time of such filing;
2. convicted in a criminal proceeding or is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses);
3. the subject of any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining him from, or otherwise limiting, the following activities:
(a) acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity;
(b) engaging in any type of business practice; or
(c) engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of Federal or State securities laws or Federal commodities laws;
4. the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any Federal or State authority barring, suspending or otherwise limiting for more than 60 days the right of such person to engage in any activity described in paragraph 3(a) in the preceding paragraph or to be associated with persons engaged in any such activity;
5. was found by a court of competent jurisdiction in a civil action or by the SEC to have violated any Federal or State securities law, and the judgment in such civil action or finding by the SEC has not been subsequently reversed, suspended, or vacated;
6. was found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any Federal commodities law, and the judgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended or vacated;
7. was the subject of, or a party to, any Federal or State judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of:
(a) any Federal or State securities or commodities law or regulation;
(b) any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order, or
(c) any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or
8. was the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the Exchange Act (15 U.S.C. 78c(a)(26))), any registered entity (as defined in Section 1(a)(29) of the Commodity Exchange Act (7 U.S.C. 1(a)(29))), or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member.
Director Independence
Our Board of Directors has determined that the following directors are "independent" as such directors do not have a direct or indirect material relationship with our Company. A material relationship is a relationship which could, in the view of our Board of Directors, be reasonably expected to interfere with the exercise of a director's independent judgment.
• J. Michael Boyd;
• Chris Harvey
• Daniel Kunz; and
• William Sutherland.
Code of Business Conduct and Ethics
The Board adopted a formal written Code of Business Conduct and Ethics on May 10, 2022. In recruiting new board members, the Board considers only persons with a demonstrated record of ethical business conduct.
B. Compensation
Compensation Discussion and Analysis
This section sets out the objectives of our Company's executive compensation arrangements, our Company's executive compensation philosophy and the application of this philosophy to our Company's executive compensation arrangements. It also provides an analysis of the compensation design, and the decisions that the Board of Directors will make in fiscal 2023 with respect to its Named Executive Officers (as herein defined).
The Board is responsible for determining all forms of compensation, including long-term incentives in the form of stock options to be granted to directors, officers, and consultants of the Company. The Board is also responsible for reviewing recommendations from the Compensation Committee for compensation of the Chief Executive Officer and other officers of the Company, to ensure such arrangements reflect the responsibilities and risks associated with each position. When determining the compensation of its officers, the Compensation Committee will consider: (i) recruiting and retaining officers critical to the success of the Company and the enhancement of shareholder value; (ii) providing fair and competitive compensation; (iii) balancing the interests of management and the Company's shareholders; and (iv) rewarding performance, both on an individual basis and with respect to operations in general. Greenbriar's compensation program currently relies heavily on the granting of stock options and performance bonuses.
The long-term incentive program is intended to align the interests of the Named Executive Officers (as defined below), directors, consultants and employees with those of Greenbriar's shareholders over the longer term and to provide a retention incentive for each Named Executive Officer. This component of the compensation package consists of grants of options to purchase common shares. Numerous factors are taken into consideration by the Board in determining grants of options, including: a review of the previous grants (including value both at the current share prices and potential future prices), the remaining time to expiry, overall corporate performance, share price performance, the business environment and the role and performance of the individual in question.
Summary Compensation Table
The following table sets forth all compensation paid, payable, awarded, granted, given or otherwise provided, directly or indirectly, by Greenbriar or its subsidiaries, to each of the executive officers set out below (each, a "Named Executive Officer") and director of Greenbriar, in any capacity, including, for greater certainty, all plan and non‐plan compensation, direct or indirect pay, remuneration, economic or financial award, reward, benefit, gift or perquisite paid, payable, awarded, granted, given or otherwise provided to the Named Executive Officer or a director of Greenbriar for services provided and for services to be provided, directly or indirectly, to Greenbriar or its subsidiaries in the two most recently completed financial years ended December 31, 2023 and December 31, 2022.
| Executive Officer and Principal Position | Year | Salary, consulting fee, retainer or commission ($) |
Bonus ($) | Committee or meeting fees ($) |
Value of perquisites ($) |
Value of all other compensation ($) |
Total Compensation ($) |
||||||||||||||
| Jeffrey J. Ciachurski | 2023 | $ | 337,448 | Nil | Nil | Nil | Nil | $ | 337,448 | ||||||||||||
| Chief Executive Officer and Director | 2022 | $ | 324,753 | Nil | Nil | Nil | Nil | $ | 324,753 | ||||||||||||
| Clifford M. Webb | 2023 | $ | 179,514 | Nil | Nil | Nil | Nil | $ | 179,514 | ||||||||||||
| President and Director | 2022 | $ | 170,841 | Nil | Nil | Nil | Nil | $ | 170,841 | ||||||||||||
| Anthony Balic | 2023 | $ | 140,429 | Nil | Nil | Nil | Nil | $ | 140,429 | ||||||||||||
| Chief Financial Officer | 2022 | $ | 132,000 | $ | 53,600 | Nil | Nil | Nil | $ | 185,600 |
Stock Options and Other Compensation Securities
The following table sets forth details for all compensation securities granted to each of the Named Executive Officers and directors during the year ended December 31, 2023:
| Name and Position | Type of compensation security |
Number of |
Date of issue or grant (m/d/y) |
Issue, conversion or exercise price ($) |
Closing price of security or underlying security on date of grant ($) |
Closing price of security underlying security at year end(1) ($) |
Expiry date (m/d/y) |
| Jeffrey J. Ciachurski | Stock Options | 200,000 | 11/15/2023 | $1.10 | $1.10 | $0.87 | 11/15/2028 |
| Chief Executive Officer and Director | |||||||
| Clifford M. Webb | Stock Options | 200,000 | 11/15/2023 | $1.10 | $1.10 | $0.87 | 11/15/2028 |
| President and Director | |||||||
| Anthony Balic | Stock Options | 200,000 | 11/15/2023 | $1.10 | $1.10 | $0.87 | 11/15/2028 |
| Chief Financial Officer | |||||||
| J. Michael Boyd | Stock Options | 200,000 | 11/15/2023 | $1.10 | $1.10 | $0.87 | 11/15/2028 |
| Director | |||||||
| Daniel Kunz | Stock Options | 200,000 | 11/15/2023 | $1.10 | $1.10 | $0.87 | 11/15/2028 |
| Director | |||||||
| William Sutherland | Stock Options | 200,000 | 11/15/2023 | $1.10 | $1.10 | $0.87 | 11/15/2028 |
| Director | |||||||
| Chris Harvey | Stock Options | 200,000 | 11/30/2023 | $1.10 | $1.05 | $0.87 | 11/30/2028 |
| Director |
_____________________
Notes
(1) Closing price on December 30, 2023, the last day of trading for the year ended December 31, 2023.
Executive Compensation Agreements
Pursuant to a consulting agreement dated July 1, 2014, the President of Greenbriar, Clifford M. Webb, agreed to lead all the wind and solar development in obtaining permitting, environmental compliance and raising of capital to construct Greenbriar's renewable energy facilities for an annual fee of US $120,000. The agreement was amended on October 18, 2016 to provide for an annual fee of US $60,000. In addition to the annual fee, Greenbriar agreed to reimburse all reasonable expenses incurred related to office expenses, daily travel per diem, mileage expense and health and life insurance premium expense. The agreement also provided for a bonus of US $250,000 in recognition of the President's unpaid work in support of Greenbriar's projects since March 2013 which was awarded to the President during the year ended December 31, 2014. The bonus will be paid from available funds upon Greenbriar closing certain development milestones allowing for an equity raise of at least US$2,000,000 or the sale of any Greenbriar assets or project rights including the Tehachapi project, whichever occurs first. The President will also be paid a US$1,950,000 development completion bonus at the time the Montalva Solar Project completes all key milestones necessary for Greenbriar to obtain project financing for the Montalva Solar Project.
Stock Option Plan and Stock Options
Greenbriar's amended and restated Stock Option Plan, dated for reference September 14, 2012 (the "Stock Option Plan"), was most recently amended on May 16, 2022 to reflect certain amendments to the Policies of the TSXV, and last approved by Greenbriar's shareholders at the annual general meeting held on June 15, 2022. The purpose of the Stock Option Plan is to encourage ownership of the common shares of Greenbriar by persons ("Eligible Persons") who are directors, senior officers and Employees of, as well as Consultants and employees of management companies providing services to, Greenbriar. Given the competitive environment in which Greenbriar operates its business, the Stock Option Plan will assist it to attract and retain valued directors, senior officers, Employees, Consultants and employees of management companies.
The aggregate number of Greenbriar's common shares reserved for issuance under the Stock Option Plan is a maximum of 10% of the issued and outstanding share capital at the date of grant. If any options granted under the Stock Option Plan expire or terminate for any reason without having been exercised in full, the unpurchased shares will again be available under the Stock Option Plan. As the Stock Option Plan is a "rolling plan", the policies of the Exchange provide that Greenbriar must seek shareholder approval of the Stock Option Plan annually. "Consultant", "Employee", "Eligible Person", "Investor Relations Activities" and "Discounted Market Price" all have the same definition as in the Policies of the TSXV.
The following summary is a brief description of the Stock Option Plan and is qualified in its entirety by the full text of the Stock Option Plan:
1. The maximum number of shares that may be issued upon the exercise of stock options previously granted and those granted under the Stock Option Plan will be a maximum of 10% of the issued and outstanding common shares at the time of the grant.
2. Stock options can be issued to persons who are directors, senior officers, Employees, advisory board members and Consultants of, or employees of management companies providing services to, Greenbriar.
3. The minimum exercise price of a stock option cannot be less than the Discounted Market Price of Greenbriar's common shares.
4. The number of options granted to any one individual may not exceed 5% of the outstanding listed shares in any 12 month period, unless Greenbriar obtains disinterested shareholder approval.
5. The number of options granted to any one Consultant may not exceed 2% of Greenbriar's outstanding listed shares in any 12 month period.
6. The number of options granted to any Employee conducting Investor Relations Activities in any 12 month period may not exceed 2% of Greenbriar's outstanding listed shares in any 12 month period.
7. All options granted under the Stock Option Plan may not have an expiry date exceeding ten years from the date on which the Board grants the option.
8. If the optionee is a director, senior officer, Employee, Consultant or management company employee and ceases to be (other than by reason of death) an Eligible Person, then the option granted shall expire within a reasonable period of time, as determined by the Board, following the date that the option holder ceases to be an Eligible Person, subject to the terms and conditions set out in the Stock Option Plan.
9. If an optionee ceases to be an Eligible Person by reason of death, an optionee's heirs or administrators shall have until the earlier of:
(a) one year from the death of the option holder; and
(b) the expiry date of the options
in which to exercise any portion of options outstanding at the time of death of the optionee.
10. The Stock Option Plan will be administered by Greenbriar's Board who will have the full authority and sole discretion to grant options under the Stock Option Plan to any Eligible Person, including themselves.
11. The options are non-assignable and non-transferable.
12. Greenbriar shall have the authority to deduct and withhold, or require the Optionee to remit to Greenbriar, the amount of any taxes or other required source deductions which Greenbriar is required by law or regulation of any governmental authority whatsoever to remit in connection with any issuance of shares upon the exercise of options.
13. The Board may from time to time, subject to regulatory approval, amend or revise the terms of the Stock Option Plan.
In addition to the Stock Option Plan, the Company has established a Performance Share Plan dated effective May 6, 2021, in connection with the issue of the Performance Shares under the Sandford Solar Projects Consulting Agreement. Mr. Sandford is the only participant under the Performance Share Plan. The Performance Share Plan was approved by the Company's shareholders at the Company's annual general meeting held on June 8, 2021. It is contemplated that the Company will issue 100,000 Performance Shares on a project achieving a commercial operations date (the date solar power is delivered to a buyer under a power purchase agreement), up to a currently approved maximum of 2,600,000 Performance Shares.
Projects being developed under the Alberta Solar Property Agreement are at various stages of development, including late stage, mid stage and early stage projects, but none have reached the stage where Mr. Sandford is entitled to compensation under the Sandford Solar Projects Consulting Agreement, which is premised on commercial operations.
Pension Disclosure
Greenbriar does not have any pension, defined benefit, defined contribution or deferred compensation plan in place.
Securities Authorized For Issuance Under Equity Compensation Plans
The only equity compensation plans which Greenbriar currently has in place are: (a) the Stock Option Plan which was approved by Greenbriar's shareholders on June 15, 2022; and (b) the Performance Share Plan which was approved by the Company's shareholders on June 8, 2021. The following table sets forth, as at December 31, 2023, the equity compensation plans pursuant to which equity securities of the Company may be issued:
| Plan Category | Number of securities covered by awards granted(1) (a) |
Weighted-average exercise price of outstanding options ($) (b) |
Number of securities remaining available for future issuance under equity compensation plans(2)(3) (c) |
||||||
| Equity compensation plans approved by securityholders | 3,391,500 | $ | 1.21 | 16,336 | |||||
| Equity compensation plans not approved by securityholders | N/A | N/A | N/A | ||||||
| Total | 3,391,500 | $ | 1.20 | 16,336 |
__________________________
Notes
(1) A total of 3,391,500 options are outstanding which have been granted pursuant to Greenbriar's Stock Option Plan.
(2) Greenbriar currently has a "rolling" Stock Option Plan. The aggregate number of common shares reserved for issuance is a maximum of 10% of the issued and outstanding share capital of Greenbriar as at the date of grant.
(3) Excludes securities reflected in column (a), and includes 2,600,000 common shares reserved for issuance under the Performance Share Plan.
C. Board Practices
Board of Directors
The Articles of the Company provide that the number of directors is set at:
(a) subject to paragraphs (b) and (c), the number of directors that is equal to the number of our first directors;
(b) if we are a public company, the greater of three and the number most recently elected by ordinary resolution (whether or not previous notice of the resolution was given); and
(c) if we are not a public company, the number most recently elected by ordinary resolution (whether or not previous notice of the resolution was given).
Our Board of Directors currently consists of six directors. Our directors are elected annually at each annual meeting of our Company's shareholders. The Board of Directors assesses potential Board candidates to fill perceived needs on the Board of Directors for required skills, expertise, independence and other factors.
Our Board of Directors is responsible for appointing our Company's officers.
Board of Director Committees
At this time the Company has the following committees:
• the Audit and Finance Committee (the "Audit Committee"), consisting of Clifford M. Webb, J. Michael Boyd and William Sutherland, of whom Mr. Boyd and Mr. Sutherland are independent.
• the Corporate Governance Committee, consisting of Clifford M. Webb, J. Michael Boyd and William Sutherland, of whom Mr. Boyd and Mr. Sutherland are independent.
• the Compensation Committee, consisting of Clifford M. Webb, J. Michael Boyd and William Sutherland, of whom Mr. Boyd and Mr. Sutherland are independent.
Audit Committee
The Audit Committee assists the Board in fulfilling its financial oversight responsibilities by reviewing the financial reporting process, the system of internal controls and the audit process. The Audit Committee's responsibilities include:
• Reviewing the annual audited financial statements to satisfy itself that they are presented in accordance with applicable generally accepted accounting principles ("GAAP") and report thereon to the Board and recommend to the Board whether or not same should be approved prior to their being filed with the appropriate regulatory authorities. The Committee shall also review the interim financial statements;
• With respect to the annual audited financial statements, discussing significant issues regarding accounting principles, practices, and judgments of management with management and the external auditors and having meetings with the Company's auditors without management present, as and when the Committee deems it appropriate to do so. The Committee shall satisfy itself that the information contained in the annual audited financial statements is not significantly erroneous, misleading or incomplete and that the audit function has been effectively carried out;
• Reviewing any internal control reports prepared by management and the evaluation of such report by the external auditors, together with management's response;
• Reviewing and satisfying itself that adequate procedures are in place for the review of the Company's public disclosure of financial information extracted or derived from the Company's financial statements, management's discussion and analysis and interim earnings press releases, and periodically assess the adequacy of these procedures;
• Review management's discussion and analysis relating to annual and interim financial statements and any other public disclosure documents, including interim earnings press releases, that are required to be reviewed by the Committee under any applicable laws, before the Company publicly discloses this information;
• Inquire of management and the external auditors about significant financial risks or exposures, both internal and external, to which the Company may be subject, and assess the steps management has taken to minimize such risks;
• Review the post-audit or management letter containing the recommendations of the external auditors and management's response and subsequent follow-up to any identified weaknesses; and
• Establish procedures for:
o the receipt, retention and treatment of complaints received by the Company regarding accounting, internal accounting controls or auditing matters; and
o the confidential, anonymous submission by employees of the Company of concerns regarding questionable accounting or auditing matters.
Corporate Governance Committee
The Corporate Governance Committee is responsible for the development and supervision of Greenbriar's approach to corporate governance issues. The Corporate Governance Committee assists the Board in developing corporate governance guidelines, including the constitution and independence of the Board, and makes recommendations to the Board with respect to corporate governance practices.
Compensation Committee
The Board is responsible for determining all forms of compensation, including long-term incentives in the form of stock options to be granted to directors, officers, and consultants of the Company. The Board is also responsible for reviewing recommendations from the Compensation Committee for compensation of the Chief Executive Officer and other officers of the Company, to ensure such arrangements reflect the responsibilities and risks associated with each position. When determining the compensation of its officers, the Compensation Committee will consider: (i) recruiting and retaining officers critical to the success of the Company and the enhancement of shareholder value; (ii) providing fair and competitive compensation; (iii) balancing the interests of management and the Company's shareholders; and (iv) rewarding performance, both on an individual basis and with respect to operations in general.
The Company has established a Real Estate Advisory Board. The members of the board are Mr. Tommy Sullivan (Chairman) and Mr. Paul Morris. The Real Estate Advisory Board has been established to industry advice and best practises, as well as mentoring and business referrals. The board meets by phone several times a week and there is no compensation paid.
D. Employees
We have no full-time or part-time employees, as of December 31, 2023. However, Mr. Jeffrey Ciarchurski, Mr. Clifford Webb and Mr. Anthony Balic serve as the Company's chief executive officer, president and chief financial officer, respectively. Each provide their respective services under consulting agreements.
E. Share Ownership
Shares
The shareholdings of our officers and directors are set out in Item 7 below.
Options
The following table sets forth details for all stock options held by our officers and directors as at April 29, 2024:
| Name and Position | Type of compensation security |
Number of compensation securities, number of underlying securities and percentage of class |
Date of issue or grant (m/d/y) |
Issue, conversion or exercise price ($) |
Closing price of security or underlying security on date of grant ($) |
Expiry date (m/d/y) |
||||||||||||
| Daniel Kunz | Stock Options | 200,000 | 11/15/2023 | $ | 1.10 | $ | 1.10 | 11/15/2028 | ||||||||||
| Director | ||||||||||||||||||
| Anthony Balic | Stock Options | 200,000 | 11/15/2023 | $ | 1.10 | $ | 1.10 | 11/15/2028 | ||||||||||
| Chief Financial Officer |
| Name and Position | Type of compensation security |
Number of compensation securities, number of underlying securities and percentage of class |
Date of issue or grant (m/d/y) |
Issue, conversion or exercise price ($) |
Closing price of security or underlying security on date of grant ($) |
Expiry date (m/d/y) |
||||||||||||
| Chris Harvey | Stock Options | 200,000 | 11/30/2023 | $ | 1.10 | $ | 1.05 | 11/30/2028 | ||||||||||
| Director | ||||||||||||||||||
| William Sutherland | Stock Options | 200,000 | 11/15/2023 | $ | 1.10 | $ | 1.10 | 11/15/2028 | ||||||||||
| Director | ||||||||||||||||||
| Clifford M. Webb | Stock Options | 200,000 | 11/15/2023 | $ | 1.10 | $ | 1.10 | 11/15/2028 | ||||||||||
| President and Director | ||||||||||||||||||
| J. Michael Boyd | Stock Options | 200,000 | 11/15/2023 | $ | 1.10 | $ | 1.10 | 11/15/2028 | ||||||||||
| Director | ||||||||||||||||||
| Jeffrey J. Ciachurski | Stock Options | 137,000 | 11/15/2023 | $ | 1.10 | $ | 1.10 | 11/15/2028 | ||||||||||
| Chief Executive Officer and Director |
Warrants
As of April 30, 2024, there are no Warrants, exercisable into common shares of the Company, held by our officers and directors.
F. Disclosure of a Registrant's Action to Recover Erroneously Awarded Compensation
Not applicable.
ITEM 7. MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS
A. Major Shareholders
Security Ownership of Certain Beneficial Owners and Management
The following table sets forth certain information regarding the beneficial ownership of our common share as of April 29, 2024, by (a) each stockholder who is known to us to own beneficially 5% or more of our outstanding common share; (b) all directors; (c) our executive officers, and (d) all executive officers and directors as a group. Except as otherwise indicated, all persons listed below have (i) sole voting power and investment power with respect to their common shares, except to the extent that authority is shared by spouses under applicable law, and (ii) record and beneficial ownership with respect to their common shares.
| Name | Common Shares of the Company Beneficially Owned (1) |
Percentage of Common Shares Beneficially Owned (2) |
||||
| Directors and Executive Officers: | ||||||
| Jeffrey J. Ciachurski(3), Chief Executive Officer and Director | 4,501,900 | 12.80% | ||||
| J. Michael Boyd(4), Director | 275,000 | 0.78% | ||||
| Daniel Kunz(5), Director | 451,900 | 1.28% | ||||
| Clifford Webb(6), President and a director | 2,416,039 | 6.87% | ||||
| William Sutherland (7), a director | 616,400 | 1.75% | ||||
| Anthony Balic(8), Chief Financial Officer and Corporate Secretary | 350,000 | 1.00% | ||||
| Chris Harvey(9), Director | 218,000 | 0.62% | ||||
| Directors and Executive Officers as a Group (Seven Persons) | 8,829,239 | 25.10% |
|
Other 5% or more Shareholders: |
|
|
|
N/A |
|
|
* Less than 1%.
__________________
Notes
(1) Under Rule 13d-3, a beneficial owner of a security includes any person who, directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise has or common shares: (i) voting power, which includes the power to vote, or to direct the voting of common shares; and (ii) investment power, which includes the power to dispose or direct the disposition of common shares. Certain shares may be deemed to be beneficially owned by more than one person (if, for example, persons share the power to vote or the power to dispose of the common shares). In addition, shares are deemed to be beneficially owned by a person if the person has the right to acquire the shares (for example, upon exercise of an option) within 60 days of the date as of which the information is provided. In computing the percentage ownership of any person, the amount of shares outstanding is deemed to include the amount of shares beneficially owned by such person (and only such person) by reason of these acquisition rights. As a result, the percentage of outstanding shares of any person as shown in this table does not necessarily reflect the person's actual ownership or voting power with respect to the number of common shares actually outstanding on April 29, 2024.
(2) The percentage is calculated based on 35,172,355 common shares that were outstanding as of April 29, 2024.
(3) Shares beneficially owned consists of (i) 2,649,600 Common Shares held directly by Mr. Ciachurski, (ii) 1,715,300 Common Shares held of record by Mr. Ciachurski's wife
(4) Shares beneficially owned consists of (i) 74,936 Common Shares held directly by Mr. Boyd.
(5) Shares beneficially owned consists of (i) 1,900 Common Shares held directly by Mr. Kunz, and (ii) stock options to purchase 250,000 Common Shares which have vested.
(6) Shares beneficially owned consists of (i) 1,776,039 Common Shares held directly by Mr. Webb, and (ii) 350,000 Common Shares issuable upon the exercise of warrants registered directly to Mr. Webb.
(7) Shares beneficially owned consists of (i) 345,000 Common Shares held directly by Mr. Sutherland.
(8) Shares beneficially owned consists of 150,000 Common Shares held directly by Mr. Balic.
(9) Shares beneficially owned consists of (i) 18,000 Common Shares held directly by Mr. Harvey, and (ii) stock options to purchase 200,000 Common Shares which have vested.
The information as to shares beneficially owned, not being within our knowledge, has been furnished by the officers and directors.
As at April 29, 2024 there were 29 holders of record of our common shares.
Transfer Agent
Our shares of common stock are recorded in registered form on the books of our transfer agent, Computershare Investor Services Inc., located at 3rd Floor, 510 Burrard Street, Vancouver, British Columbia Canada V6C 3B9.
B. Related Party Transactions
As at April 29, 2024, the Company had $2,096,787 (December 31, 2023 - $2,258,825; December 31, 2022 - $2,743,252; December 31, 2021 - $3,508,784) in accounts payable and accrued liabilities to related parties. During the year ended December 31, 2023, related party loan interest of US $68,961 (December 31, 2022 - US $63,341; December 31, 2021 – US $58,488) was capitalized to power project acquisition and development costs.
On November 15, 2023, the Company granted an aggregate of 1,200,000 incentive stock options to certain directors and officers of the Company pursuant to the Company's previously approved Stock Option Plan. The stock options are exercisable at a price of $1.10 per share for a period of 5 years. See "Stock Options and Other Compensation Securities" above.
Clifford M. Webb
Consulting Agreement
On July 1, 2014, the Company entered into a consulting contract with Clifford M. Webb, a Director and the President of the Company. The agreement provides for an annual fee of US $120,000 in which the President will lead all the wind and solar development in obtaining permitting, environmental compliance and raising of capital to construct the renewable energy facilities. In addition, the Company agrees to reimburse all reasonable expense incurred related to office expenses, daily travel per diem, mileage expense and health and life insurance premium expense. Further, upon the Company closing certain development milestones allowing for an equity raise of at least US $2 Million or the sale of any Company assets or project rights including the Tehachapi land whichever comes first, the agreement provides for a one-time payment of US $250,000 in recognition of the President's unpaid work in support of the Company's projects since March 2013. Lastly, the President will be paid a US$3 Million development completion bonus at the time the Montalva Solar Project completes all key milestones necessary for the Company to obtain project financing for the Montalva Solar Project.
On October 15, 2016, the President entered into an amended compensation agreement with the Company. Under this new agreement, the President agreed to settle all unpaid fees and late penalties with a US$168,750 loan at interest of 8% per annum compounded semi-annually. His base fee will be reduced to US$5,000 per month until such time as a PPOA for a project has been executed with PREPA or other such milestone has occurred as determined by the board. The fee will then be reverted back to US$10,000 per month. Further the development completion award for the Montalva solar project will be reduced to US$1.95 million from the initial US$3 million.
During the year ended December 31, 2022, the President charged the Company $179,514 (2022 - $170,841; 2021 - $114,499) under the contract. As at December 31, 2023, included in accounts payable are fees and expenses due to the President of the Company of $577,511 (December 31, 2022 - $491,231; December 31, 2021 - $41,938).
Loan
On August 13, 2018, the Company renegotiated the terms of an outstanding loan comprising certain debt due to Mr. Webb, for services rendered to the Company in his capacity as the Company's President. Mr. Webb agreed to extend the term of the loan until June 15, 2021.
On December 31, 2018, the Company agreed to convert $322,534 of the loan outstanding from Mr. Webb into a convertible debenture pursuant to which Mr. Webb was given the ability to convert the loan and interest into units of the Company at the conversion price of $1.25 per unit until June 15, 2021. Each unit is comprised of one share and one-half of one share purchase warrant. Each whole warrant entitles the holder to purchase one additional share of the Company at a price of $1.50 on or prior to August 21, 2021. The entire principal balance of $322,534 was converted before expiry on June 15, 2021.
Anthony Balic
During the year ended December 31, 2023, a Company controlled by Anthony Balic, the Company's CFO, charged the Company $140,429 (2022 - $8185,600; 2021 - $80,000) related to services.
Michael Boyd
During the year ended December 31, 2023, consulting fees of $nil were paid to a director (2022 - $13,716; 2021 - $nil) related to services.
Jeff Ciachurski
During the year ended December 31, 2023, the Chief Executive Officer of the Company charged the Company $337,448 (2022 - $324,753; 2021 - $131,161) under the contract.
Captiva Verde Wellness Corp.
As at December 31, 2023, the Company had a loan receivable of $206,947 (December 31, 2022 - $644,990; December 31, 2021 - $1,833,979) from Captiva. The loan is non-interest bearing and is repayable upon demand. The loan represents a non-arm's length transaction as the Chief Executive Officer of the Company, Jeffrey Ciachurski, is also the Chief Executive Officer of Captiva.
On February 17, 2022, the Company settled $1,290,000 of the loan receivable through a shares for debt settlement pursuant to which Captiva issued the Company a total of 25,800,000 common shares at a fair value of $0.08 per common share. On April 20, 2022, the Company entered into a promissory note with Captiva for the remainder of the receivable accruing interest at the rate of 8% per annum for a term of 24 months.
On June 22, 2023 and amended on August 21, 2023, the Company entered into an agreement with Captiva whereby the Company will pay Captiva $5,591,588, which represents the amount that Captiva has invested into Sage Ranch, in 48 equal monthly installments of $116,491 starting on August 22, 2024, with the last payment on June 1, 2028.
Bonus Awards
On August 4, 2021, the Company declared USD $2,740,000 in bonus awards (each, a "Bonus") to executives and directors of the Company in recognition of receiving full entitlement approval by local authorities for the Sage Ranch project. The awards were approved by the Company's board of directors, on the recommendation of the Compensation Committee (comprised of Clifford Webb, Michael Boyd and William Sutherland), in recognition of the many years of perseverance and effort involved in getting the project approved, in the face of materially reduced management salaries and director fees, and other efforts by the board and the management team to conserve the Company's cash. The expense was recorded as consulting fees in the statement of loss and comprehensive loss.
To the extent that a Bonus was proposed to be awarded to a director, such director was deemed to have had a "disclosable interest" in the award for the purposes of section 147 of the Business Corporations Act (British Columbia). Therefore, as described below under the heading "Memorandum and Articles of Association - Potential Conflicts of Interest - Fiduciary Duties," each such director, after declaring his disclosable interest, abstained from voting on his own Bonus. The Bonuses were approved by the board of directors on the recommendation of the Compensation Committee, independent of any compensatory plan maintained by the Company, as extraordinary awards merited by the recipients in the unique circumstances surrounding the approval of the Final Master Development Plan for the Sage Ranch project by the City of Tehachapi.
C. Interests of Experts and Counsel
Not Applicable.
ITEM 8. FINANCIAL INFORMATION
A. Consolidated Statements and Other Financial Information
Financial Statements
Our audited consolidated financial statements as at December 31, 2023 and 2022 and for the years ended December 31, 2023, 2022 and 2021 are attached hereto and found immediately following the text of this Annual Report, beginning on page F-1. The financial statements of the Company have been prepared in accordance with IFRS Accounting Standards as issued by the International Accounting Standards Board and are included under Item 18 of this Annual Report. The financial statements including related notes are accompanied by the report of the Company’s independent registered public accounting firm, Davidson & Company LLP.
Legal Proceedings
As of the date of this Annual Report, in the opinion of our management, we are not currently a party to any litigation or legal proceedings which are material, either individually or in the aggregate, and, to our knowledge, no legal proceedings of a material nature involving us currently are contemplated by any individuals, entities or governmental authorities.
Dividends
We have not paid any dividends on our common shares since in Company. Our management anticipates that we will retain all future earnings and other cash resources for the future operation and development of our business. We do not intend to declare or pay any cash dividends in the foreseeable future. Payment of any future dividends will be at the Board of Directors' discretion, subject to applicable law, after taking into account many factors including our operating results, financial condition and current and anticipated cash needs.
B. Significant Changes
We have not experienced any significant changes since the date of the financial statements included with this Annual Report except as disclosed in this Annual Report.
ITEM 9. THE OFFER AND LISTING DETAILS
A. Offer and Listing Details
Our Common Shares are listed for trading on the TSXV under the trading symbol "GRB".
As of the date of this Annual Report, our authorized capital consisted of an unlimited number of Common Shares without par value. Our issued and outstanding Common Shares are fully paid. We have no other authorized class of equity securities.
Our Common Shares are in registered form and the transfer of our Common Shares is managed by our transfer agent, Computershare Investor Services Inc., 510 Burrard Street, 3rd Floor, Vancouver, British Columbia, V6C 3B9 (Tel: (604) 661-9400). Our transfer agent in the United States is expected to be Computershare Trust Company, N.A., Canton, MA.
For additional details regarding our Common Shares, see Item 10.A, "Share Capital".
B. Plan of Distribution
Not applicable.
C. Markets
See Item 9.A "Offer and Listing Details". Our common shares trade on the TSXV under the symbol "GRB" and our CUSIP number is 39364R. Our common shares also trade on the OTC Pink Market under the symbol "GEBRF".
D. Selling Shareholders
Not applicable.
E. Dilution
Not applicable.
F. Expenses of the Issue
Not applicable.
ITEM 10. ADDITIONAL INFORMATION
A. Share Capital
Not applicable.
B. Memorandum and Articles of Association
The following is a summary of our Notice of Articles and Articles. You should read those documents for a complete understanding of the rights and limitations set out therein. Our Company number, as assigned by the British Columbia Registry Services, is BC0849070.
Remuneration of Directors
Our directors are entitled to the remuneration, if any, for acting as directors as the directors may from time to time determine. If the directors so decide, the remuneration of the directors will be determined by the shareholders. That remuneration may be in addition to any salary or other remuneration paid to a director in such director's capacity as an officer or employee of ours.
Number of Directors
According to Article 13.1 of our Articles, the number of directors, excluding additional directors appointed under Article 14.8 is set at:
(a) subject to paragraphs (b) and (c), the number of directors that is equal to the number of our first directors;
(b) if we are a public company, the greater of three and the most recently set of (i) the number of directors set by ordinary resolution (whether or not previous notice of the resolution was given); and (ii) the number of directors set under Article 14.4; and
(c) if we are not a public company, the number most recently set of: (i) the number of directors set by ordinary resolution (whether or not previous notice of the resolution was given); and (ii) the number of directors set under Article 14.4.
Directors
Our directors are elected annually at each annual meeting of our Company's shareholders. Article 14.8 provides that the Board of Directors may, between annual general meetings or unanimous resolutions contemplated by Article 10.2, appoint one or more additional directors to serve until the next annual meeting, but the number of additional directors must not at any time exceed:
(a) 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
(b) in any other case, one-third of the number of the current directors who were elected or appointed as directors under Article 14.8.
Our Articles provide that our directors may from time to time, on behalf of our Company, without shareholder approval:
• 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;
• increase, reduce or eliminate the maximum number of shares that we are authorized to issue out of any class or series of shares or establish a maximum number of shares that we are authorized to issue out of any class or series of shares for which no maximum is established;
• if we are authorized to issue shares of a class of shares with par value;
• decrease the par value of those shares;
• if none of the shares of that class of shares are allotted or issued, increase the par value of those shares;
• subdivide all or any of its unissued or fully paid issued shares with par value into shares of smaller par value;
• consolidate all or any of its unissued or fully paid issued shares with par value into share of larger par value;
• subdivide all or any of its unissued or fully paid issued shares without par value;
• change all or any of its unissued or fully paid issued shares with par value into shares without par value or all or any of its unissued shares without par value into shares with par value;
• alter the identifying name of any of its shares;
• consolidate all or any of its unissued or fully paid issued shares without par value;
• otherwise alter it shares or authorized share structure when required or permitted to do so by the Business Corporations Act (British Columbia);
• borrow money in the manner and amount, on the security, from the sources and on the terms and conditions that they consider appropriate;
• 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 any discount or premium and on such terms as they consider appropriate;
• guarantee the repayment of money by any other person or the performance of any obligation of any other person; and
• mortgage or charge, whether by way of specific or floating charge, or give other security on the whole or any part of the present and future assets and undertaking of the Company.
Our Articles also provide that we may by resolution of the directors authorize an alteration to our Notice of Articles in order to change our name.
Our Articles provide that the directors may meet together for the conduct of business, adjourn and otherwise regulate their meetings as they think fit, and meetings of the Board of Directors held at regular intervals may be held at the place and at the time that the Board of Directors may by resolution from time to time determine. 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. A director may participate in a meeting of the directors or of any committee of the directors in person, or by telephone or other communications medium, if all directors participating in the meeting 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 communication 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 participates in a meeting in a manner contemplated by such provisions of our Articles is deemed for all purposes of the Business Corporations Act (British Columbia) and our Articles to be present at the meeting and to have agreed to participate in that manner.
Our Articles provide that 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.
Our Articles do not set out a mandatory retirement age for our directors. Our directors are not required to own securities of our Company to serve as directors.
Potential Conflicts of Interest - Fiduciary Duties
As disclosed under the heading "Risk Factors - The Company's officers and Directors may have conflicts of interest out of their relationships with other companies":
(a) several of the Company's directors and officers serve (or may agree to serve) as directors or officers of other companies, or have significant shareholdings in other companies;
(b) to the extent that such other companies may participate in ventures in which the Company participates, the directors and officers may have a conflict of interest in negotiating and concluding terms respecting the extent of such participation; and
(c) in particular: (i) Jeffrey Ciachurski, our Company's chief executive officer, is also the chief executive officer of Captiva, which is party to a settlement agreement in respect of its joint venture with our Company in relation to the Sage Ranch Real Estate Project discussed elsewhere in this annual report; (ii) our Company's chief financial officer, Anthony Balic, also serves as the chief financial officer of Captiva; and (iii) Michael Boyd serves as a director of both companies.
Although the Company is not aware of any specific conflicts of interest involving any of its directors or officers at the present time (other than the involvement of Messrs. Ciachurski, Balic and Boyd in Captiva), there is a possibility that our directors and/or officers may be in a position of conflict of interest in the future. Our Articles and By-laws do not expressly address this possibility. However, as a general principle under British Columbia corporate law, our directors and officers are under fiduciary obligations to our Company, and section 142(1) of the Business Corporations Act (British Columbia) requires that every director and officer of our Company, in exercising his or her powers and discharging his or her duties, shall:
(a) act honestly and in good faith with a view to the best interests of our Company; and
(b) exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
In addition, under section 147 of the Business Corporations Act (British Columbia), a director or officer of our Company who
(a) is a party to a material contract or material transaction, or a proposed material contract or proposed material transaction, with our Company, or
(b) is a director or an officer of, or has a material interest in, any entity that is a party to a material contract or material transaction, or a proposed material contract or proposed material transaction, with our Company,
must, on a timely basis, disclose in writing to our Company, or request to have entered in the minutes of meetings of directors, the nature and extent of his or her "disclosable interest" in the contract or transaction. If the material contract or material transaction is one that, in the ordinary course of our Company's business, would not require approval by our directors or our shareholders, the interested director or interested officer must nevertheless disclose in writing to our Company, or request to have entered in the minutes of a meeting of our directors, the nature and extent of his or her disclosable interest forthwith after he or she becomes aware of the contract or transaction.
Generally, under section 140 of the Business Corporations Act (British Columbia), a director must abstain from voting on any resolution to approve an existing or proposed contract or transaction involving our Company in which he or she is interested, or in which a company of which he or she is a director or officer is interested, 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. 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.
Under section 147 of the Business Corporations Act (British Columbia), if a material contract or material transaction is entered into between our Company and one or more of our directors or officers, or between our Company and another entity of which any of our directors or officers is a director or officer or in which any of our directors or officers has a material interest:
(a) the contract is neither void nor voidable by reason only of that relationship, or by reason only that a director with an interest in the contract or transaction was present at or was counted to determine the presence of a quorum at a meeting of directors or committee of directors that authorized the contract or transaction, and
(b) a director or officer or former director or officer of our Company to whom a profit accrues as a result of the making of the contract or transaction is not liable to account to our Company for that profit by reason only of holding office as a director or officer of our Company,
if the director or officer disclosed his or her interest in accordance with section 147 of the Business Corporations Act (British Columbia), and the contract or transaction was not only approved by our directors or our shareholders but was also reasonable and fair to our Company at the time it was approved. Further, even if the foregoing conditions of section 147 of the Business Corporations Act (British Columbia) are not met, section 147 of the Business Corporations Act (British Columbia) provides that a director or officer acting honestly and in good faith is not accountable to our Company or to our shareholders for any profit realized from a material contract or material transaction for which disclosure is required under section 147 of the Business Corporations Act (British Columbia), and the material contract or material transaction is not void or voidable by reason only of the interest of the director or officer in the material contract or material transaction, if:
(a) the material contract or material transaction is approved or confirmed by special resolution at a meeting of our shareholders,
(b) disclosure of the interest was made to the shareholders in a manner sufficient to indicate its nature before the material contract or material transaction was approved or confirmed, and
(c) the material contract or material transaction was reasonable and fair to our Company when it was approved or confirmed.
Section 150 of the Business Corporations Act (British Columbia) provides that if a director or an officer of a corporation fails to comply with section 147 of that Act, the Supreme Court of British Columbia may, on application of the corporation or any of its shareholders, set aside the material contract or material transaction on any terms that it thinks fit, or require the director or officer to account to the corporation for any profit or gain realized on it, or both.
Pursuant to our Articles, a director or senior officer who holds a disclosable interest 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 (British Columbia).
One example of a conflict of interest that could potentially arise is where one of our directors or officers finds himself or herself in a position where he or she might benefit from a contract or business opportunity which could be obtained for our Company. Such corporate opportunities potentially could be usurped by the director or officer directly, or diverted to another entity of which he or she is a director or officer or in which he or she is otherwise interested. A number of Canadian court decisions have addressed these kinds of situations, and have established the principle that the fiduciary duties owed by directors and senior officers to their corporations prohibit them from personally usurping or diverting to another entity any maturing business opportunity which the corporation is actively pursuing. A director or senior officer cannot escape his or her fiduciary duties in this regard simply by resigning his or her positions with the corporation, where the resignation can be reasonably seen to have been prompted by his or her wish to pursue the corporate opportunity personally or on behalf of another entity. Further, the courts have held that a director or senior officer who breaches his or her fiduciary duties by usurping or diverting a corporate opportunity must account for their profit even if a third party had refused to deal with the corporation, or that the corporation itself could not have profited from the opportunity.
In light of the foregoing principles and statutory provisions, each of our directors and officers is expected to comply with the disclosure and abstention requirements of section 147 of the Business Corporations Act (British Columbia) if he or she becomes aware of any material contract or material transaction, or a proposed material contract or proposed material transaction, involving our Company in which:
(a) he or she is interested, or
(b) in which an entity of which he or she is a director or an officer, or in which he or she has a material interest, is interested.
Further, if any of our directors or officers becomes aware of any contract or business opportunity that he or she reasonably believes would be of benefit to our Company, he or she is expected to bring that contract or opportunity to the attention of our board of directors for consideration, and, if applicable, to (i) give notice that if the board resolves not to pursue it then he or she may wish to do so in his or her own capacity or to bring it before another entity with which he or she is associated, and (ii) if he or she is a director of our Company, abstain from voting on the proposal. If any director or officer improperly usurps or diverts a corporate opportunity, the Company reserves the right to seek such remedies as it deems appropriate.
Authorized Capital
Our Notice of Articles provide that our authorized capital consists of an unlimited number of common shares, without par value.
Shareholder Meetings
Our Articles provide that the directors may, whenever they think fit, call a meeting of shareholders. A meeting of the Company may be held at a location outside British Columbia if that location is: (i) approved by resolution of the directors before the meeting is held; or (ii) approved in writing by the Registrar of Companies before the meeting is held. The Company must send notice of the date, time and location of any meeting of shareholders, in the manner provided in our Articles, or in such other manner, if any, as may be prescribed by ordinary resolution, to each shareholder entitled to attend the meeting, to each director and to the auditor of the Company, unless the Articles provide, at least the following number of days before the meeting: (i) if and for so long as the Company is a public company, 21 days; or (ii) otherwise, 10 days.
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: (i) if for so long as the Company is a public company, 21 days; or (ii) otherwise, 10 days. 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 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.
Subject to 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 persons who are, or who represent by proxy, shareholders who, in the aggregate, hold at least 5% of the issued shares entitled to be voted at the meeting. If there is only one shareholder entitled to vote at a meeting of shareholders: (i) the quorum is one person who is, or who represents by proxy, that shareholder, and (ii) that shareholder, present in person or by proxy, may constitute the meeting. 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.
Pursuant to Article 11.24 of our Articles, a shareholder or proxy holder who is entitled to participate in, including vote at, a meeting of shareholders may do so in person, or by telephone or other communications medium, if all shareholders and proxy holders participating in the meeting are able to communicate with each other; provided, however, that nothing in Article 11.24 shall obligate the Company to take any action or provide any facility to permit or facilitate the use of any communications medium at a meeting of shareholders. If one or more shareholders or proxy holders participate in a meeting of shareholders in a manner contemplated by Article 11.24: (i) each such shareholder or proxy holder shall be deemed to be present at the meeting; and (ii) the meeting shall be deemed to be held at the location specified in the notice of meeting.
Limitations on Rights of Non-Canadians
Our Company is incorporated pursuant to the laws of the Province of British Columbia, Canada. There is no law or governmental decree or regulation in Canada that restricts the export or import of capital, or affects the remittance of dividends, interest or other payments to a non-resident holder of common shares, other than withholding tax requirements. Any such remittances to United States residents are generally subject to withholding tax, however, no such remittances are likely in the foreseeable future. See "Canadian Federal Income Tax Considerations for United States Residents" below.
There is no limitation imposed by Canadian law or by our Articles or other constituent documents of our Company on the right of a non-resident to hold or vote common shares of our Company. However, the Investment Canada Act (Canada) (the "Investment Act") has rules regarding certain acquisitions of shares by non-Canadians, along with other requirements under that legislation.
The following discussion summarizes the principal features of the Investment Act for a non-Canadian (as defined under the Investment Act) who proposes to acquire common shares of our Company. The discussion is general only; it is not a substitute for independent legal advice from an investor's own advisor; and it does not anticipate statutory or regulatory amendments.
The Investment Act is a federal statute of broad application regulating the establishment and acquisition of Canadian businesses by non-Canadians, including individuals, governments or agencies thereof, corporations, partnerships, trusts or joint ventures (each an "entity"). Investments by non-Canadians to acquire control over existing Canadian businesses or to establish new ones are either reviewable or notifiable under the Investment Act. If an investment by a non-Canadian to acquire control over an existing Canadian business is reviewable under the Investment Act, the Investment Act generally prohibits implementation of the investment unless, after review, the Minister of Innovation, Science and Industry (the "Minister") is satisfied that the investment is likely to be of net benefit to Canada.
A non-Canadian would acquire control of our Company for the purposes of the Investment Act through the acquisition of common shares if the non-Canadian acquired a majority of the voting interests in our Company.
Further, the acquisition of less than a majority but one-third or more of the voting interests in our Company by a non-Canadian would be presumed to be an acquisition of control of our Company unless it could be established that, on the acquisition, our Company was not controlled in fact by the acquirer through the ownership of such voting interests.
For a direct acquisition that would result in an acquisition of control of our Company, subject to the exception for "WTO investors" that are controlled by persons who are nationals or permanent residents of World Trade Organization ("WTO") member nations, a proposed investment generally would be reviewable where the value of the acquired assets is $5 million or more.
For a proposed indirect acquisition by an investor other than a so-called "WTO investor" that would result in an acquisition of control of our Company through the acquisition of a non-Canadian parent entity, the investment generally would be reviewable where the value of the assets of the entity carrying on the Canadian business, and of all other entities in Canada, the control of which is acquired, directly or indirectly, is $50 million or more.
In the case of a direct acquisition by a WTO investor that is not a state-owned enterprise, the threshold is significantly higher. An investment in common shares of our Company by a WTO investor that is not a state-owned enterprise would be reviewable only if it was an investment to acquire control of the Company and the enterprise value of the assets of the Company was equal to or greater than a specified amount, which is published by the Minister after its determination for any particular year. For 2024, this amount is $1.326 billion (unless the investor is controlled by persons who are nationals or permanent residents of countries that are party to one of a list of certain free trade agreements, in which case the amount is $1.989 billion for 2024); each year, both thresholds are adjusted by a GDP (Gross Domestic Product) based index.
The higher WTO threshold for direct investments and the exemption for indirect investments do not apply where the relevant Canadian business is carrying on a "cultural business". The acquisition of a Canadian business that is a cultural business is subject to lower review thresholds under the Investment Act because of the perceived sensitivity of the cultural sector.
If the Minister has reasonable grounds to believe that an investment by a non-Canadian "could be injurious to national security", the Minister may send the non-Canadian a notice indicating that an order for review of the investment may be made. The review of an investment on the grounds of national security may occur whether or not an investment is otherwise subject to review on the basis of net benefit to Canada or otherwise subject to notification under the Investment Act.
Certain transactions, except those to which the national security provisions of the Investment Act may apply, relating to common shares of our Company are exempt from the Investment Act, including:
(a) the acquisition of our common shares by a person in the ordinary course of that person's business as a trader or dealer in securities;
(b) the acquisition of control of our Company in connection with the realization of security granted for a loan or other financial assistance and not for a purpose related to the provisions of the Investment Act, if the acquisition is subject to approval under the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act; and
(c) the acquisition of control of our Company by reason of an amalgamation, merger, consolidation or corporate reorganization following which the ultimate direct or indirect control in fact of our Company, through the ownership of voting interests, remains unchanged.
C. Material Contracts
Except for contracts entered into in the ordinary course of business, the following are our only material agreements (the "Material Contracts"):
• Option and Joint Venture Agreement dated August 10, 2020 between Greenbriar Capital (U.S.) LLC ("Greenbriar U.S."), as optionor, and Captiva, as optionee, whereby Captiva has been granted an option to earn a 50% net profits interest in the Property comprising the Sage Ranch Project in Tehachapi, California. Pursuant to the Option and Joint Venture Agreement, Capitva agreed to: (a) pay the sum of C$2,250,000 to Greenbriar U.S.; and (b) fully fund the permitting and development of the Property. Five percent of the amount payable by Captiva to Greenbriar U.S. under the Option and Joint Venture Agreement was originally evidenced by a one-year interest-free promissory note, which has been paid; the balance was paid by the issuance by Capitva to Greenbriar U.S. of 10,687,500 fully-paid and non-assessable common shares in the capital of Captiva.
• On June 22, 2023 and amended on August 21, 2023, the Company entered into an agreement with Captiva whereby the Company will pay Captiva the outstanding $5,591,588 in 48 equal monthly installments of $116,491 starting on July 1, 2024, with the last payment on June 1, 2028. Once the amount has been repaid, Captiva will no longer have any further net profits interest in and to the Sage Ranch Project.
D. Exchange Controls
We are incorporated pursuant to the laws of the Province of British Columbia, Canada. There is no law or governmental decree or regulation in Canada that restricts the export or import of capital, or affects the remittance of dividends, interest or other payments to a non-resident holder of common shares, other than withholding tax requirements. Any such remittances to United States residents are generally subject to withholding tax, however no such remittances are likely in the foreseeable future. See "Certain Canadian Federal Income Tax Information for United States Residents" below.
There is no limitation imposed by Canadian law or by the charter or other constituent documents of our Company on the right of a non-resident to hold or vote common shares of our Company. However, as discussed above in Item 10.B, "Memorandum and Articles of Association," under the heading "Limitations on Rights of Non-Canadians," the Investment Act has rules regarding certain acquisitions of shares by non-residents, along with other requirements under that legislation.
E. Taxation
Certain Canadian Federal Income Tax Considerations for United States Residents
The following is a summary of certain Canadian federal income tax considerations generally applicable to the holding and disposition of our securities acquired by a holder who, at all relevant times, (a) for the purposes of the Income Tax Act (Canada) (the "Tax Act") (i) is not resident, or deemed to be resident, in Canada, (ii) deals at arm's length with us and underwriters that we have recently used, and is not affiliated with us or the underwriters that we have recently used, (iii) holds our common shares as capital property, (iv) does not use or hold the common shares in the course of carrying on, or otherwise in connection with, a business carried on or deemed to be carried on in Canada and (v) is not a "registered non-resident insurer" or "authorized foreign bank" (each as defined in the Tax Act), or other holder of special status, and (b) for the purposes of the Canada-U.S. Tax Convention (the "Tax Treaty"), is a resident of the United States, has never been a resident of Canada, does not have and has not had, at any time, a permanent establishment or fixed base in Canada, and who otherwise qualifies for the full benefits of the Tax Treaty. Holders who meet all the criteria in clauses (a) and (b) above are referred to herein as "U.S. Holders", and this summary only addresses such U.S. Holders.
This summary does not deal with special situations, such as the particular circumstances of traders or dealers, tax exempt entities, insurers or financial institutions, or other holders of special status or in special circumstances. Such holders, and all other holders who do not meet the criteria in clauses (a) and (b) above, should consult their own tax advisors.
This summary is based on the current provisions of the Tax Act, the regulations thereunder in force at the date hereof (the "Regulations"), the current provisions of the Tax Treaty, and our understanding of the administrative and assessing practices of the Canada Revenue Agency published in writing prior to the date hereof. This summary takes into account all specific proposals to amend the Tax Act and Regulations publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof (the "Proposed Amendments") and assumes that such Proposed Amendments will be enacted in the form proposed. However, such Proposed Amendments might not be enacted in the form proposed, or at all. This summary does not otherwise take into account or anticipate any changes in law or administrative or assessing practices, whether by legislative, governmental or judicial decision or action, nor does it take into account tax laws of any province or territory of Canada or of any other jurisdiction outside Canada, which may differ significantly from those discussed in this summary.
For the purposes of the Tax Act, all amounts relating to the acquisition, holding or disposition of our securities must generally be expressed in Canadian dollars. Amounts denominated in United States currency generally must be converted into Canadian dollars using the rate of exchange that is acceptable to the Canada Revenue Agency.
This summary is of a general nature only and is not intended to be, nor should it be construed to be, legal or tax advice to any particular U.S. Holder, and no representation with respect to the Canadian federal income tax consequences to any particular U.S. Holder or prospective U.S. Holder is made. This summary is not exhaustive of all Canadian federal income tax considerations. Accordingly, all prospective purchasers (including U.S. Holders as defined above) should consult with their own tax advisors for advice with respect to their own particular circumstances.
Withholding Tax on Dividends
Amounts paid or credited or deemed to be paid or credited as, on account or in lieu of payment of, or in satisfaction of, dividends on our common shares to a U.S. Holder will be subject to Canadian withholding tax. Under the Tax Treaty, the rate of Canadian withholding tax on dividends paid or credited by us to a U.S. Holder that beneficially owns such dividends and substantiates eligibility for the benefits of the Tax Treaty is generally 15% (unless the beneficial owner is a company that owns at least 10% of our voting stock at that time, in which case the rate of Canadian withholding tax is generally reduced to 5%)
Dispositions
A U.S. Holder will not be subject to tax under the Tax Act on a capital gain realized on a disposition or deemed disposition of a security, unless the security is "taxable Canadian property" to the U.S. Holder for purposes of the Tax Act and the U.S. Holder is not entitled to relief under the Tax Treaty.
Generally, the common shares will not constitute "taxable Canadian property" to a U.S. Holder at a particular time unless, at any time during the 60 month period immediately preceding the disposition, more than 50% of the fair market value of such security was derived, directly or indirectly, from one or any combination of: (i) real or immovable property situated in Canada, (ii) "Canadian resource properties" (as defined in the Tax Act), (iii) "timber resource properties" (as defined in the Tax Act), and (iv) options in respect of, or interests in, or for civil law rights in, property described in any of the foregoing whether or not the property exists. Notwithstanding the foregoing, in certain other circumstances set out in the Tax Act, common shares could also be deemed to be "taxable Canadian property".
Provided that the common shares are listed on a "designated stock exchange" as defined in the Tax Act (which includes the TSXV) at the time of disposition, the common shares generally will not constitute "taxable Canadian property" of a U.S. Holder at that time unless, at any time during the 60 month period immediately preceding the disposition, the following two conditions are met concurrently: (i) the U.S. Holder, persons with whom the U.S. Holder did not deal at arm's length, partnerships in which the U.S. Holder or such non-arm's length person holds a membership interest (either directly or indirectly through one or more partnerships), or the U.S. Holder together with all such persons, owned 25% or more of the issued shares of any class or series of shares of our company; and (ii) more than 50% of the fair market value of the shares of the company was derived directly or indirectly from one or any combination of real or immovable property situated in Canada, Canadian resource properties (as defined in the Tax Act), timber resource properties (as defined in the Tax Act) or options in respect of, or interests in, or for civil law rights in, property described in any of the foregoing whether or not the property exists. Notwithstanding the foregoing, in certain other circumstances set out in the Tax Act, common shares could also be deemed to be "taxable Canadian property".
U.S. Holders who may hold common shares as "taxable Canadian property" should consult their own tax advisors with respect to the application of Canadian capital gains taxation, any potential relief under the Tax Treaty, and special compliance procedures under the Tax Act, none of which is described in this summary.
F. Dividends and Paying Agents
Not applicable.
G. Statements by Experts
Not applicable.
H. Documents on Display
Upon the effectiveness of this filing, we will be subject to the informational requirements of the Securities Exchange Act of 1934, as amended, and we will thereafter file reports and other information with the SEC. You may read and copy any of our reports and other information at, and obtain copies upon payment of prescribed fees from, the Public Reference Room maintained by the SEC at 100 F Street, N.E., 450 Fifth Street, N.W., Room 1024, Washington, DC 20549. In addition, the SEC maintains a web site that contains reports and other information regarding registrants that file electronically with the SEC at HTTP://www.sec.gov. The public may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330.
The documents concerning our Company referred to in this Annual Report may be viewed at our principal executive offices, 6323 Foster Avenue, Coquitlam, British Columbia, Canada V3J 2L7 (Telephone: (604) 608-9572), during normal business hours. Copies of our financial statements and other continuous disclosure documents required under the Securities Act (British Columbia) are available for viewing on SEDAR+ at www.sedarplus.ca. All of the documents referred to are in English.
I. Subsidiary Information
See Item 4.C, "Organizational Structure", for the Company's active subsidiaries as at the date of this Annual Report.
J. Annual Report to Security Holders
Under Canadian continuous disclosure requirements, we are required to file annually on SEDAR+ within 120 days following the end of each fiscal year, Management's Discussion and Analysis in respect of such fiscal year on Form 51-102F1 (the "MD&A"), the audited annual financial statements (the "Annual Financial Statements") prescribed by Section 4.1 of National Instrument 51-102 - Continuous Disclosure Obligations (as adopted by the Canadian Securities Administrators), and officer certifications on Form 52-109V1 (collectively with the MD&A and Annual Financial Statements, the "Annual Filings") executed by, respectively, our Chief Executive Officer and our Chief Financial Officer. If we do not elect to file our annual report on Form 20-F as an alternate form of MD&A for the relevant fiscal year, or if any Canadian Securities Administrator objects to the filing of our annual report on Form 20-F as an alternate form of MD&A, we will be required to provide the Annual Filings to the holders of our common shares in response to the requirements of Form 6-K. In such circumstances, we will submit the Annual Filings to such security holders in electronic format in accordance with the EDGAR Filer Manual.
ITEM 11. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We are exposed in varying degrees to a variety of financial instrument related risks. The Board of Directors approves and monitors the risk management processes, inclusive of controlling and reporting structures. The type of risk exposure and the way in which such exposure is managed is provided as follows:
Interest Rate Risk
Interest rate risk is the risk that the fair value or future cash flows of a financial instrument will fluctuate because of changes in market interest rates. The Company is exposed to interest rates through the interest earned on cash balances, deposits, convertible debentures and loans; however, management does not believe this exposure is significant as most items are at fixed interest rates.
Credit Risk
The Company is exposed to credit risk through its cash, which is held in large Canadian financial institutions with high credit rating, other receivables and the loan receivable. The Company believes the credit risk is insignificant for the cash and other receivables and moderate for the loan receivable with Captiva. The Company's exposure is limited to amounts reported within the statement of financial position.
Liquidity Risk
Liquidity is the risk that the Company will not be able to meet its financial obligations as they fall due. The Company manages liquidity risk through the management of its capital structure. In order to meet its financial obligations, the Company will need to generate cash flow from the sale or otherwise disposition of property or raise additional funds. The following table summarizes the remaining contractual maturities of the Company's financial liabilities and operating commitments:
| At December 31, 2023 | Within one year | Over 1 year | Total | |||||||
| Accounts payable and accrued liabilities | $ | 3,822,969 | $ | - | $ | 3,822,969 | ||||
| Loan payables and promissory notes | 781,322 | - | 781,322 | |||||||
| Joint venture settlement obligation | 698,950 | 3,298,141 | 3,997,091 | |||||||
| Convertible debenture | - | 3,483,890 | 3,483,890 | |||||||
| Convertible debenture derivative | - | 1,027,427 | 1,027,427 | |||||||
| $ | 5,303,241 | $ | 7,809,458 | $ | 13,112,699 |
| At December 31, 2022 | Within one year | Over 1 year | Total | ||||||
| Accounts payable and accrued liabilities | $ | 4,855,747 | $ | - | $ | 4,855,747 | |||
| Loan payables | 718,238 | - | 718,238 | ||||||
| $ | 5,573,985 | $ | - | $ | 5,573,985 |
| At December 31, 2021 | Within one year | Over 1 year | Total | ||||||
| Accounts payable and accrued liabilities | $ | 5,536,070 | $ | - | $ | 5,536,070 | |||
| Loan payables | 647,762 | - | 647,762 | ||||||
| $ | 6,183,832 | $ | - | $ | 6,183,832 |
Foreign Exchange Risk
The Company operates in Canada and the United States and is exposed to foreign exchange risk arising from transactions denominated in foreign currencies.
The operating results and the financial position of the Company are reported in Canadian dollars. Fluctuations of the operating currencies in relation to the Canadian dollar will have an impact upon the reported results of the Company and may also affect the value of the Company's assets and liabilities.
The Company's financial assets and liabilities as at December 31, 2023 are denominated in Canadian Dollars and United States Dollars and are set out in the following table:
| Financial Assets | Canadian Dollars | U.S. Dollars | Total | ||||||
| $ | $ | $ | |||||||
| Cash | 14,936 | 32,162 | 47,098 | ||||||
| Other receivables | 3,476 | - | 3,476 | ||||||
| Related company loan receivable | 206,947 | - | 206,947 | ||||||
| Marketable securities | - | 1,785,510 | 1,785,510 | ||||||
| 225,359 | 1,817,672 | 2,043,031 | |||||||
| Financial Liabilities | |||||||||
| Other financial liabilities | |||||||||
| Accounts payable and accrued liabilities | (285,915 | ) | (3,537,054 | ) | (3,822,969 | ) | |||
| Loan payable | (30,000 | ) | (751,322 | ) | (781,322 | ) | |||
| Joint venture settlement obligation | (3,997,091 | ) | - | (3,997,091 | ) | ||||
| Convertible debenture | (785,129 | ) | (2,698,761 | ) | (3,483,890 | ) | |||
| Convertible debenture derivative | - | (1,027,427 | ) | (1,027,427 | ) | ||||
| Net Financial Liabilities | (4,872,776 | ) | (6,196,892 | ) | (11,069,668 | ) |
The Company's financial assets and liabilities as at December 31, 2022 are denominated in Canadian Dollars and United States Dollars and are set out in the following table:
| Financial Assets | Canadian Dollars | U.S. Dollars | Total | ||||||
| $ | $ | $ | |||||||
| Cash | 23,983 | 967 | 24,950 | ||||||
| Other receivables | 8,780 | - | 8,780 | ||||||
| Related company loan receivable | 644,990 | - | 644,990 | ||||||
| Marketable securities | - | 1,819,800 | 1,819,800 | ||||||
| 677,753 | 1,820,767 | 2,498,520 | |||||||
| Financial Liabilities | |||||||||
| Other financial liabilities | |||||||||
| Accounts payable and accrued liabilities | (253,651 | ) | (4,602,096 | ) | (4,855,747 | ) | |||
| Loan payable | - | (718,238 | ) | (718,238 | ) | ||||
| Net Financial Liabilities | 424,102 | (3,499,567 | ) | (3,075,465 | ) |
The Company's financial assets and liabilities as at December 31, 2021 are denominated in Canadian Dollars and United States Dollars and are set out in the following table:
| Financial Assets | Canadian Dollars | U.S. Dollars | Total | ||||||
| $ | $ | $ | |||||||
| Cash | 9,402 | (129 | ) | 9,273 | |||||
| Other receivables | 3,750 | - | 3,750 | ||||||
| Related company loan receivable | 1,261,853 | 572,126 | 1,833,979 | ||||||
| Marketable securities | 454,219 | - | 454,219 | ||||||
| 1,729,224 | 571,997 | 2,301,221 | |||||||
| Financial Liabilities | |||||||||
| Other financial liabilities | |||||||||
| Accounts payable and accrued liabilities | (561,752 | ) | (4,974,318 | ) | (5,536,070 | ) | |||
| Loan payable | (147,637 | ) | (500,125 | ) | (647,762 | ) | |||
| Net Financial Liabilities | 1,019,835 | (4,902,446 | ) | (3,882,611 | ) |
Classification of Financial Instruments
The Company examines the various financial instrument risks to which it is exposed and assesses the impact and likelihood of those risks.
The following tables summarize the valuation of the Company's financial assets and liabilities reported at fair value by the fair value hierarchy levels:
| December 31, 2023 |
December 31, 2022 |
December 31, 2021 |
||||||||||
| Financial Assets | Fair Value Hierarchy Level |
Fair Value $ | Fair Value $ | Fair Value $ | ||||||||
| Fair value through profit and loss ("FVTPL") | ||||||||||||
| Cash | Level 1 | 47,098 | 24,950 | 9,273 | ||||||||
| Marketable securities - public | Level 1 | - | - | 454,219 | ||||||||
| Marketable securities - Private | Level 2 | 1,785,510 | 1,819,800 | - | ||||||||
| Financial Liabilities | ||||||||||||
| Other financial liabilities | ||||||||||||
| Convertible debenture derivative | Level 3 | 1,027,427 | - | - |
Fair value
Financial instruments measured at fair value are grouped into Level 1 to 3 based on the degree to which fair value is observable:
• Level 1 - quoted prices in active markets for identical securities
• Level 2 - significant observable inputs other than quoted prices included in Level 1
• Level 3 - significant unobservable inputs
The Company did not move any instruments between levels of the fair value hierarchy in 2023 or during the years ended December 31, 2022 and December 31, 2021.
Convertible debenture derivative is considered to be a Level 3 classification as certain inputs are not based on observable market data.
The Company's financial instruments include cash, marketable securities, other receivables, related party loan receivable, accounts payable and accrued liabilities, loan payable and promissory notes, joint venture settlement obligation, convertible debentures and convertible debenture derivatives. The carrying values of other receivables, related company loan receivable and accounts payable and accrued liabilities and loan payable and promissory notes approximate their fair values due to their relatively short periods to maturity.
The fair value of the marketable securities is based on recent transaction prices.
The fair value of the joint venture settlement obligation and convertible debentures are initially recorded at fair value and are evaluated by the Company based on level 2 inputs such as discounted future interest and principal payments using current market interest rates of instruments using similar terms. These instruments are subsequently measured through amortized cost, with accretion and interest income recognized through the statement of loss and comprehensive loss.
ITEM 12. DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES
Not applicable.
PART II
ITEM 13. DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES
There have not been any defaults with respect to dividends, arrearages or delinquencies since incorporation of the Company on April 2, 2009.
ITEM 14. MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS
Not applicable.
ITEM 15. CONTROLS AND PROCEDURES
A. Disclosure Controls and Procedures
Disclosure controls and procedures are defined in Rule 13a-15(e) and 15d-15(e) under the Exchange Act to mean controls and other procedures of an issuer that are designed to ensure that information required to be disclosed by the issuer in the reports that it files or submits under the Exchange Act is recorded, processed, summarized, and reported, within the time periods specified in the SEC's rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by an issuer in the reports that it files or submits under the Exchange Act is accumulated and communicated to the issuer's management, including principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure.
As of the end of the period covered by this report, as required by Rule 13a-15 under the Exchange Act, our management carried out an evaluation, under the supervision of our Chief Executive Officer ("CEO") and Chief Financial Officer ("CFO"), of the effectiveness of the Company's disclosure controls and procedures. Based upon that evaluation, our CEO and CFO concluded that, as of the end of the period covered by this report, the Company's disclosure controls and procedures were effective in providing reasonable assurance that the information required to be disclosed by the Company in reports that we file or submit to the SEC under the Exchange Act is:
• recorded, processed, summarized and reported within the time periods specified in the SEC's rules and forms, and
• accumulated and communicated to our management, including our CEO and CFO, as appropriate, to allow timely decisions regarding required disclosure.
It should be noted that while our CEO and CFO believe that the Company's disclosure controls and procedures provide a reasonable level of assurance that they are effective, they do not expect that the Company's disclosure controls and procedures or internal control over financial reporting will prevent all errors and fraud. A control system, no matter how well conceived or operated, can provide only reasonable, not absolute, assurance that the objectives of the control system will be met.
B. Management's Annual Report On Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Exchange Act Rules 13a-15(f) and 15d-15(f) define this as a process designed by, or under the supervision of, the Company's principal executive and principal financial officers and effected by the Board of Directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and includes those policies and procedures that:
• pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company;
• provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the Company; and
• provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the company's assets that may have a material effect on the financial statements.
Under the supervision and with the participation of our CEO and CFO, our management assessed the effectiveness of our internal control over financial reporting as at December 31, 2023. In making this assessment, our management used the criteria, established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based upon this assessment, our management concluded that our internal control over financial reporting was effective as at December 31, 2023.
C. Attestation Report of the Registered Public Accounting Firm
This Annual Report does not include an attestation report of the Company's registered public accounting firm regarding internal control over financial reporting. Management's report is not subject to attestation by the Company's registered public accounting firm pursuant to rules of the SEC that permit the Company to provide only the management's report in this Annual Report.
D. Changes in Internal Control Over Financial Reporting
During the period ended December 31, 2023, there were no changes in our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
ITEM 16A. AUDIT COMMITTEE FINANCIAL EXPERT
Our audit and finance committee (the "Audit Committee") consists of three of our directors, J. Michael Boyd, William Sutherland and Clifford M. Webb. Mr. Boyd currently serves as Chair of the Audit Committee.
Our Board of Directors has determined that Mr. Sutherland is an "Audit Committee Financial Expert" using the criteria prescribed by Item 16A of Form 20-F under the Exchange Act, and is also an "independent" director using the definition of audit committee member independence contained in the NASDAQ Marketplace Rules.
ITEM 16B. CODE OF ETHICS
The Board of Directors has recently adopted a Code of Business Conduct and Ethics (the "Code of Ethics") that applies to all of our employees and officers, including our principal executive officer, principal financial officer, principal accounting officer or controller or persons performing similar functions. The Code of Ethics meets the requirements for a "code of ethics" within the meaning of that term in Item 16B of Form 20-F. A copy of our Code of Ethics will be provided to any person without charge upon request. All requests for a copy of our Code of Ethics should be directed in writing to the attention of Jeffrey Ciachurski, CEO, at 632 Foster Avenue, Coquitlam, British Columbia, Canada, V3J 2L7, or by email at westernwind@shaw.ca.
ITEM 16C. PRINCIPAL ACCOUNTANT FEES AND SERVICES
The following table sets forth information regarding the amount billed and accrued to us by Davidson & Company LLP for the fiscal years ended December 31, 2023 and 2022:
| Year Ended December 31 | ||||||
| 2023 | 2022 | |||||
| Audit Fees: | $ | 76,500 | $ | 75,000 | ||
| Audit Related Fees: | Nil | Nil | ||||
| Tax Fees: | Nil | Nil | ||||
| Total: | $ | 76,500 | $ | 75,000 | ||
Audit Fees
This category includes the aggregate fees billed by our independent auditor for the audit of our annual financial statements, reviews of interim financial statements that are provided in connection with statutory and regulatory filings or engagements.
Audit Related Fees
This category includes the aggregate fees billed in each of the last two fiscal years for assurance and related services by our independent auditor that are reasonably related to the performance of the audits or reviews of the financial statements and are not reported above under "Audit Fees", and generally consist of fees for other engagements under professional auditing standards, accounting and reporting consultations.
Tax Fees
This category includes the aggregate fees billed in each of the last two fiscal years for professional services rendered by our independent auditor for tax compliance, tax planning and tax advice.
Policy on Pre-Approval by Audit Committee of Services Performed by Independent Auditors
The policy of our Audit Committee is to pre-approve all audit and permissible non-audit services to be performed by our independent auditors during the fiscal year.
ITEM 16D. EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES
Not applicable.
ITEM 16E. PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS
Not applicable.
ITEM 16F. CHANGE IN REGISTRANT'S CERTIFYING ACCOUNTANT
Not applicable.
ITEM 16G. CORPORATE GOVERNANCE
Not applicable.
ITEM 16H. MINE SAFETY DISCLOSURE
Not applicable.
ITEM 16I. DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS
Not applicable.
ITEM 16J. INSIDER TRADING POLICIES
Not applicable.
ITEM 16K. CYBERSECURITY
As an early stage company, we have limited operations and our business activity to date has been identifying and permitting real estate and renewable energy projects, and have not yet adopted formal cybersecurity risk management programs or formal processes for assessing cybersecurity risks. We understand the importance of managing material risks from cybersecurity threats and are committed, as part of our continuing growth, to implementing and maintaining an adequate information security program to manage such risks and safeguard our systems and data.
We currently manage our cybersecurity risk through a variety of practices that are applicable to all users of our information technology and information assets, including our contractors. We use a combination of technology, policies, training, and monitoring to promote security awareness and prevent security incidents.
Due to the early stage of development of our projects, we believe have limited exposure to cyber threats other than emails and project data storage. Financial transactions are enabled through well-established financial institutions and accounting and employee information storage are outsourced to an external service providers.
We have not, as of the date of this report, experienced a cybersecurity threat or incident in the last three years, that materially affected or is reasonably likely to affect our business, results of operations, or financial condition. However, there can be no guarantee that we will not experience such an incident in the future. Refer to our risk factor "The Company is exposed to information systems and cybersecurity risks" on page 10.
PART III
ITEM 17. FINANCIAL STATEMENTS
Not applicable.
ITEM 18. FINANCIAL STATEMENTS
Our consolidated financial statements are stated in Canadian dollars and are prepared in accordance with International Financial Reporting Standards, as issued by the International Accounting Standards Board. The following financial statements, as required under this Item 18, are attached hereto and found immediately following the text of this Annual Report.
• Audited consolidated statements of financial position of the Company as at December 31, 2023 and 2022, and the audited consolidated statements of loss and comprehensive loss, changes in shareholders’ equity, and cash flows for the years ended December 31, 2023, 2022 and 2021, and notes to the audited consolidated financial statements, including a summary of significant accounting policies.
ITEM 19. EXHIBITS
Exhibits Required by Form 20-F
The following exhibits are filed as part of this Annual Report on Form 20-F:
|
* |
Filed herewith |
|
** |
Furnished herewith |
|
(1) |
Certain portions of this exhibit have been redacted as they are both not material and are of the type of information that the registrant treats as private or confidential. The Company agrees to furnish supplementally an unredacted copy of the exhibit to the SEC upon its request. |
|
(2) |
Filed as an exhibit to our registration statement on Form 20-F, as filed with the SEC on January 28, 2022, and incorporated herein by reference. |
|
(3) |
Filed as an exhibit to our registration statement on Form 20-F/A (Amendment No. 2), as filed with the SEC on May 10, 2022, and incorporated herein by reference. |
SIGNATURES
The Registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this Annual Report on its behalf.
| GREENBRIAR SUSTAINABLE LIVING INC. | ||
| Dated: April 29, 2024 | By: | /s/ Jeff Ciachurski |
| Jeff Ciachurski | ||
| Chief Executive Officer | ||
Greenbriar Sustainable Living Inc.
(Formerly "Greenbriar Capital Corp.")
Consolidated Financial Statements
Years Ended December 31, 2023, 2022 and 2021
(amounts expressed in Canadian dollars, except where indicated)
Report of Independent Registered Public Accounting Firm
To the Shareholders and Directors of
Greenbriar Sustainable Living Inc. (formerly Greenbriar Capital Corp.)
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated statements of financial position of Greenbriar Sustainable Living Inc. (formerly Greenbriar Capital Corp.) (the “Company”) as of December 31, 2023 and 2022, and the related consolidated statements of loss and comprehensive loss, changes in shareholders’ equity, and cash flows for the years ended December 31, 2023, 2022, and 2021 and the related notes (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2023 and 2022, and the results of its operations and its cash flows for the years ended December 31, 2023, 2022, and 2021 in conformity with IFRS Accounting Standards as issued by the International Accounting Standards Board.
Going Concern
The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 1 to the consolidated financial statements, the Company has no history of earning revenues from operations, has a working capital deficiency of $6,478,520 and an accumulated deficit of $27,470,722. These matters raise substantial doubt about its ability to continue as a going concern. Management's plans in regard to these matters are also described in Note 1. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) ("PCAOB") and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the entity’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
We have served as the Company’s auditor since 2019.
/s/
|
|
Chartered Professional Accountants |
April 29, 2024
| Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Consolidated Statements of Financial Position For the years ended December 31, 2023 and 2022 (amounts expressed in Canadian dollars, except where indicated) |
| Note | As at December 31, 2023 |
As at December 31, 2022 |
|||||
| Assets | |||||||
| Current assets | |||||||
| Cash | $ | $ | |||||
| Deposits and prepaid expenses - short term | |||||||
| Other receivables | |||||||
| Marketable securities | 7 | ||||||
| Loan receivable | 5 | ||||||
| Non-current assets | |||||||
| Deposits and prepaid expenses - long term | |||||||
| Loan receivable | 5 | ||||||
| Sage Ranch | 6 | ||||||
| Power project acquisition and development costs | 8 | ||||||
| Total assets | $ | $ | |||||
| Liabilities | |||||||
| Current liabilities | |||||||
| Accounts payable and accrued liabilities | 9 | ||||||
| Loans payable and promissory note | 10 | ||||||
| Joint venture settlement obligation | 12 | ||||||
| Convertible debenture | 11 | ||||||
| Convertible debenture derivative | 11 | ||||||
| Non-current liabilities | |||||||
| Joint venture settlement obligation | 12 | ||||||
| Convertible debenture | 11 | ||||||
| Total liabilities | |||||||
| Shareholders' equity | |||||||
| Share capital | 13 | ||||||
| Reserves | 13 | ||||||
| Accumulated other comprehensive income | |||||||
| Deficit | ( |
) | ( |
) | |||
| Total shareholders' equity | |||||||
| Total liabilities and shareholders' equity | $ | $ |
Nature of operations and going concern (note 1)
Commitments and contingencies (note 18)
Approved by the Board of Directors
| “Jeff Ciachurski” | Director | “Cliff Webb” | Director |
The accompanying notes are an integral part of these consolidated financial statements.
| Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Consolidated Statements of Loss and Comprehensive Loss For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
| Notes |
Year EndedDecember 31, | |||||||||
| 2023 | 2022 | 2021 | ||||||||
| General and administration expenses | ||||||||||
| Consulting and management fees | 17 | $ | ( |
) | $ | ( |
) | ( |
) | |
| General and administrative | ( |
) | ( |
) | ( |
) | ||||
| Marketing and donations | ( |
) | ( |
) | ( |
) | ||||
| Finance cost | ( |
) | ( |
) | ( |
) | ||||
| Share-based payment expense | 13 | ( |
) | ( |
) | ( |
) | |||
| Professional fees | ( |
) | ( |
) | ( |
) | ||||
| ( |
) | ( |
) | ( |
) | |||||
| Other (expenses) income, net | ||||||||||
| Foreign exchange gain (loss) | ( |
) | ( |
) | ||||||
| Unrealized gain (loss) on marketable securities | ( |
) | ||||||||
| Share of loss on investment in associate | ( |
) | ||||||||
| Gain on settlement of accounts payable and accrued liabilities | 9 | |||||||||
| Gain on settlement of loans receivable | 5 | |||||||||
| Loss on shares for debt settlement | ( |
) | ||||||||
| Interest income | 5 | |||||||||
| Loss on disposition of shares | ( |
) | ||||||||
| Other income | ||||||||||
| Transaction costs expensed on convertible debentures | 11 | ( |
) | |||||||
| Fair value adjustment on derivative liability | 11 | |||||||||
| Loss | ( |
) | ( |
) | ( |
) | ||||
| Other comprehensive income (loss) | ||||||||||
| Cumulative translation adjustment | ( |
) | ||||||||
| Total comprehensive loss | $ | ( |
) | $ | ( |
) | ( |
) | ||
| Loss per share-basic and diluted | $ | ( |
) | $ | ( |
) | $ | ( |
) | |
| Weighted average shares outstanding-basic and diluted | ||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
| Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Consolidated Statements of Changes in Shareholders' Equity For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
| Notes | Shares |
Share capital |
Option reserves |
Warrants reserves |
Convertible debenture reserves |
Accumulated other comprehensive income |
Deficit | Total Shareholders' Equity |
|||||||||||||||||
| Balance at December 31, 2022 | $ | $ | $ | $ | $ | $ | ( |
) | $ | ||||||||||||||||
| Loss for the year | - | - | - | - | - | - | ( |
) | ( |
) | |||||||||||||||
| Private placement | 13 | - | - | - | - | ||||||||||||||||||||
| Share issuance cost | 13 | ( |
) | - | - | - | - | - | ( |
) | |||||||||||||||
| Options exercised | 13 | ( |
) | - | - | - | - | ||||||||||||||||||
| Warrants exercised | 13 | - | ( |
) | - | - | - | ||||||||||||||||||
| Cumulative translation adjustment | - | - | - | - | - | ( |
) | - | ( |
) | |||||||||||||||
| Share-based payment expense | 13 | - | - | - | - | - | - | ||||||||||||||||||
| Convertible debenture issuance | 11 | - | - | - | - | - | - | ||||||||||||||||||
| Convertible debenture bonus warrants | 11 | - | - | - | - | - | - | ||||||||||||||||||
| Balance at December 31, 2023 | $ | $ | $ | $ | $ | $ | ( |
) | $ | ||||||||||||||||
| Balance at December 31, 2021 | $ | $ | $ | $ | $ | $ | ( |
) | $ | ||||||||||||||||
| Loss for the year | - | - | - | - | - | - | ( |
) | ( |
) | |||||||||||||||
| Private placement | 13 | - | - | - | - | ||||||||||||||||||||
| Options exercised | 13 | ( |
) | - | - | - | - | ||||||||||||||||||
| Warrants exercised | 13 | - | ( |
) | - | - | - | ||||||||||||||||||
| Share issuance cost | - | ( |
) | - | - | - | - | - | ( |
) | |||||||||||||||
| Share-based payment expense | 13 | - | - | - | - | - | - | ||||||||||||||||||
| Cumulative translation adjustment | - | - | - | - | - | - | |||||||||||||||||||
| Shares issued on acquisition of water rights | 13 | - | - | - | - | ||||||||||||||||||||
| Balance at December 31, 2022 | $ | $ | $ | $ | $ | $ | ( |
) | $ |
The accompanying notes are an integral part of these consolidated financial statements.
| Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Consolidated Statements of Changes in Shareholders' Equity For the years ended December 31, 2023, 2022 and 2021 (amounts expressed in Canadian dollars, except where indicated) |
| Notes | Shares |
Share capital |
Share-based payment reserves |
Warrants reserves |
Convertible debenture reserves |
Accumulated other comprehensive income |
Deficit | Total Shareholders' Equity |
|||||||||||||||||
| Balance at December 31, 2020 | $ | $ | $ | $ | $ | $ | ( |
) | $ | ||||||||||||||||
| Loss for the year | - | - | - | - | - | - | ( |
) | ( |
) | |||||||||||||||
| Private placement | - | - | - | - | |||||||||||||||||||||
| Options exercised | ( |
) | - | - | - | - | |||||||||||||||||||
| Warrants exercised | - | ( |
) | - | - | - | |||||||||||||||||||
| Share issuance cost | - | ( |
) | - | - | - | - | - | ( |
) | |||||||||||||||
| Finder's shares | - | - | - | - | - | ||||||||||||||||||||
| Shares issued for debt settlement | - | - | - | - | - | ||||||||||||||||||||
| Convertible debenture converted | - | ( |
) | - | - | ||||||||||||||||||||
| Share-based payment expense | - | - | - | - | - | - | |||||||||||||||||||
| Cumulative translation adjustment | - | - | - | - | - | - | |||||||||||||||||||
| Balance at December 31, 2021 | $ | $ | $ | $ | $ | $ | ( |
) | $ |
The accompanying notes are an integral part of these consolidated financial statements.
| Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Consolidated Statements of Cash Flows For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
| Note |
Year Ended December 31, | |||||||||
| 2023 | 2022 | 2021 | ||||||||
| Cash used from operating activities | ||||||||||
| Loss for the year | $ | ( |
) | $ | ( |
) | $ | ( |
) | |
| Items not affecting cash | ||||||||||
| Unrealized foreign exchange gain (loss) | ( |
) | ||||||||
| Gain on settlement of account payable and accrued liabilities | 9 | ( |
) | ( |
) | ( |
) | |||
| Loss on shares for debt settlement | ||||||||||
| Gain on settlement of loans receivable | ( |
) | ||||||||
| Share-based payment expense | 13 | |||||||||
| Unrealized gain on marketable securities | ( |
) | ||||||||
| Loss on disposal of marketable securities | ||||||||||
| Share of loss on investment in associate | ||||||||||
| Accrued interest income | 5 | ( |
) | ( |
) | |||||
| Other income | ( |
) | ||||||||
| Accretion on convertible debenture | 11 | ( |
) | |||||||
| Fair value of derivative liability | 11 | ( |
) | |||||||
| Transaction costs expensed on convertible debentures | 11 | |||||||||
| ( |
) | ( |
) | ( |
) | |||||
| Change in non-cash operating working capital | ||||||||||
| Decrease (increase) in receivables and prepaid expenses | ( |
) | ( |
) | ||||||
| Increase (decrease) in accounts payable and accrued liabilities | ( |
) | ( |
) | ||||||
| ( |
) | ( |
) | ( |
) | |||||
| Cash flows used in investing activities | ||||||||||
| Sage ranch | 6 | ( |
) | ( |
) | ( |
) | |||
| Power project development and construction costs | 8 | ( |
) | ( |
) | ( |
) | |||
| Proceeds on sale of marketable securities | ||||||||||
| Deposits and long-term expenses | ( |
) | ||||||||
| ( |
) | ( |
) | ( |
) | |||||
| Cash flows used in financing activities | ||||||||||
| Cash paid on executive loans | ( |
) | ( |
) | ( |
) | ||||
| Cash received on executive loans | 10 | |||||||||
| Convertible debenture issuance | 11 | |||||||||
| Transaction costs on convertible debt | 11 | ( |
) | |||||||
| Private placement proceeds | 13 | |||||||||
| Share issuance cost | 13 | ( |
) | ( |
) | ( |
) | |||
| Options exercises | 13 | |||||||||
| Warrants exercises | 13 | |||||||||
| Related company loan | 5 | ( |
) | ( |
) | |||||
| Effect of foreign exchange on cash | ( |
) | ||||||||
| Increase (decrease) in cash | $ | $ | $ | ( |
) | |||||
| Cash - beginning of year | ||||||||||
| Cash - end of year | $ | $ | $ | |||||||
Supplemental cash flow information (Note 20)
The accompanying notes are an integral part of these consolidated financial statements.
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
1 Nature of operations and going concern
Greenbriar Sustainable Living Inc. (formerly "Greenbriar Capital Corp.") ("Greenbriar" or the "Company") is a leading developer of entry-level housing, renewable energy, green technology and sustainable investment projects. Greenbriar was incorporated under the British Columbia Business Corporations Act on April 2, 2009 and is a real estate issuer on the TSX Venture Exchange. The Company's registered records office is located at Suite 1500 - 1055 West Georgia Street, Vancouver, BC, V6E 4N7. The Company is listed as a Tier 2 real estate issuer. The Company's shares trade on the exchange under the symbol "GRB". The Company changed its name from Greenbriar Capital Corp. to Greenbriar Sustainable Living Inc. effective November 15, 2023.
These consolidated financial statements have been prepared on the basis that the Company is a going concern, which assumes that the Company will be able to realize its assets and discharge its liabilities in the normal course of business. The nature of the Company's primary business is the acquisition, management, development, and possible sale of real estate and renewable energy projects. The Company had a loss of $
Recent global issues, including the ongoing COVID-19 pandemic and political conflict in other regions have adversely affected workplaces, economies, supply chains, and financial markets globally. It is not possible for the Company to predict the duration or magnitude of the adverse results of these issues and their effects on the Company's business or results of operations this time.
2 Basis of presentation
These consolidated financial statements have been prepared in accordance with IFRS Accounting Standards as issued by the International Accounting Standards Board effective as at December 31, 2023. The policies set out below were consistently applied to all periods presented.
These financial statements were authorized for issue by the Board of Directors on April 29, 2024.
These consolidated financial statements have been prepared on the historical cost basis, except for certain financial instruments that are measured at fair value. In addition, the consolidated financial statements have been prepared using the accrual basis of accounting, except for cash flow information. All information is expressed in Canadian dollars unless otherwise stated and are prepared in accordance with the material accounting policies outlined below.
3 Material accounting policies
Principles of consolidation
Subsidiaries
These consolidated financial statements include the accounts of Greenbriar and its subsidiaries. All intercompany balances, transactions, income and expenses, and profits or losses have been eliminated on consolidation. The Company consolidates where there is ability to exercise control. Control of an investee is defined to exist when the Company is exposed to variable returns from its involvement with the investee and has the ability to affect those returns through the Company's power over the investee. Specifically, the Company controls an investee if and only if, it has all of the following: power over the investee (i.e., existing rights that give it the current ability to direct the relevant activities of the investee); exposure, or rights, to variable returns from its involvement with the investee; and the ability to use its power over the investee to affect its returns.
Joint Arrangements
A joint arrangement is defined as one over which two or more parties have joint control, which is the contractually agreed sharing of control over an arrangement. This exists only when the decisions about the relevant activities (being those that significantly affect the returns of the arrangement) require unanimous consent of the parties sharing control. There are two types of joint arrangement, joint operations ("JO") and joint ventures ("JV").
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
A JO is a joint arrangement whereby the parties that have joint control of the arrangement have rights to assets and obligations for the liabilities, relating to the arrangement. The Company has no JO's.
A JV is a joint arrangement whereby the parties that have joint control of the arrangement have rights to the net assets of the joint venture. Investments in JV's are accounted for using the equity method. On acquisition, an equity method investment is initially recognized at cost. The carrying amount of equity method investments includes goodwill identified on acquisition, net of any accumulated impairment losses. The carrying amount of the investment is adjusted by the Company's share of post-acquisition net income or loss, depreciation, amortization or impairment of the fair value adjustments made at the date of acquisition, dividends, cash contributions and the Company's share of post acquisition movements in Other Comprehensive Income ("OCI").
Associates
An associate is an entity over which the investor has significant influence but not control and that is neither a subsidiary nor an interest in a joint arrangement. Significant influence is presumed to exist where the Company has between
Outlined below is information related to the Company's subsidiaries at December 31, 2023:
| Place of business | Entity type | Economic interest | Method | |
| Greenbriar Capital Holdco Inc. | USA | Subsidiary | Consolidation | |
| Greenbriar Capital (U.S.) LLC | USA | Subsidiary | Consolidation | |
| AG Solar One, LLC | USA | Subsidiary | Consolidation | |
| 2587344 Ontario Inc. | Canada | Subsidiary | Consolidation | |
| Greenbriar Alberta Holdco Inc. | Canada | Subsidiary | Consolidation | |
| PBJL Energy Corporation | Puerto Rico | Subsidiary | Consolidation |
Foreign currency translation
The Company's functional and local currency is the Canadian dollar and its subsidiaries located in the USA and Puerto Rico have a functional currency of the United States dollar and its subsidiaries in Canada have a functional currency of the Canadian dollar.
Transactions and balances
Foreign currency transactions are translated into the relevant functional currency using the exchange rates prevailing at the dates of the transactions. Foreign exchange gains and losses resulting from the settlement of such transactions and from the translation at period-end exchange rates of monetary assets and liabilities denominated in foreign currencies are recognized in profit or loss.
Translation of subsidiary results into the presentation currency
The operating results and statements of financial position of the Company's subsidiaries are translated into the presentation currency as follows:
-
Assets and liabilities for each statement of financial position presented are translated at the closing rate at the date of the statement of financial position;
-
Income and expenses for each statement of loss and comprehensive loss are translated at average exchange rates, unless the average is not a reasonable approximation of the cumulative effect of the rates prevailing on the transaction dates; in which case income and expenses are translated at the rate on the dates of the transaction; and
-
All resulting exchange differences are recognized directly in OCI and accumulated in the foreign currency translation reserve.
On consolidation, exchange differences arising from the transaction of the net investment in foreign entities are recognized in a separate component of equity, foreign currency translation reserve. When a foreign operation is sold, such exchange differences are reclassified to profit or loss on disposal.
Cash
Cash includes cash on deposit.
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
Intangible assets
Intangible assets can be acquired by separate purchase, as part of a business combination, by government grant, by exchange of assets and by self-creation.
Intangible assets are classified as those with finite useful lives and those with indefinite useful lives. The carrying amount of an intangible asset with a finite useful life is reduced by depreciation and impairments. Depreciation of intangible assets begins to be calculated when the asset is available for use. The adequacy of the depreciation period and the depreciation method are reviewed at least at each financial year-end. Any adjustments necessary are accounted for as a change in an accounting estimate.
Intangible assets with an indefinite useful life, or those not yet available for use, are tested for impairment at least on the statement of financial position date. These assets are not subject to amortization. The useful life is reassessed to determine whether the assets need not be treated as having finite useful life, and the effect is accounted for as a change in an accounting estimate.
Power project acquisition and development cots
The Company is in the preliminary stage of development with respect to its activities and accordingly follows the practice of capitalizing all costs related to the acquisition, environmental assessment, feasibility studies, security of property rights, financing, and initial construction as part of the intangible asset. The costs will be amortized over the terms of the Power Purchasing Agreement (the "PPA") once the project commences commercial operations. The recoverability of the capitalized costs is dependent on the Company's ability to complete construction of the projects, meet its obligations under various agreements, and complete future operations and dispositions.
Financial instruments - recognition and measurements
(i) Non-derivative financial assets
On initial recognition, financial assets are recognized at fair value and are subsequently classified and measured at: (i) amortized cost; (ii) fair value through other comprehensive income ("FVOCI"); or (iii) fair value through profit or loss ("FVTPL"). The classification of financial assets is generally based on the business model in which a financial asset is managed and its contractual cash flow characteristics. A financial asset is measured at fair value net of transaction costs that are directly attributable to its acquisition except for financial assets at FVTPL where transaction costs are expensed. All financial assets not classified and measured at amortized cost or FVOCI are classified as FVTPL. On initial recognition of an equity instrument that is not held for trading, the Company may irrevocably elect to present subsequent changes in the investment's fair value in other comprehensive income/loss.
The classification determines the method by which the financial assets are carried on the statement of financial position subsequent to inception and how changes in value are recorded. Loan and other receivables are measured at amortized cost with subsequent impairments recognized in profit or loss. Cash and marketable securities are classified as FVTPL.
Impairment
An 'expected credit loss' impairment model applies which requires a loss allowance to be recognized based on expected credit losses. The estimated present value of future cash flows associated with the asset is determined and an impairment loss is recognized for the difference between this amount and the carrying amount as follows: the carrying amount of the asset is reduced to its estimated present value of the future cash flows associated with the asset, discounted at the financial asset's original effective interest rate, either directly or through the use of an allowance account and the resulting loss is recognized in profit or loss for the period.
In a subsequent period, if the amount of the impairment loss related to financial assets measured at amortized cost decreases, the previously recognized impairment loss is reversed through profit or loss to the extent that the carrying amount of the investment at the date the impairment is reversed does not exceed what the amortized cost would have been had the impairment not been recognized.
(ii) Non-derivative financial liabilities
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
Financial liabilities, other than derivatives, are initially recognized at fair value less directly attributable transaction costs. Subsequently, financial liabilities are measured at amortized cost using the effective interest method. The effective interest method is a method of calculating the amortized cost of a financial liability and allocating the interest expense over the relevant period. The effective interest rate is the rate that exactly discounts estimated future cash payments through the expected life of the financial liability, or, where appropriate, a shorter period. The Company's accounts payable and accrued liabilities, joint venture settlement obligation, convertible debenture and loans payable and promissory note are measured at amortized cost.
Financial liabilities classified as FVTPL include financial liabilities held for trading and financial liabilities designated upon recognition as FVTPL. Fair value changes on these liabilities are recognized in profit or loss. The Company's convertible debenture derivative is measured at fair value.
(iii) Derivative financial instruments
Derivative financial instruments are initially recognized at fair value and subsequently measured at fair value with changes in fair value recognized in profit or loss. Transaction costs are recognized in profit or loss as incurred.
Investment property held for development - Sage Ranch
An investment property is an immovable property held by the Company to earn rentals or for capital appreciation, or both, rather than for use in the production or supply of goods and services or for administrative purposes, or for sale in the ordinary course of business. Investment properties include income properties, properties under development and land held for future development.
Properties under development are measured at cost. Capitalized costs for land under development and sale includes property taxes, land appraisals, engineering and architect fees, development fees and other general and administrative expenses costs relating to the development of the property. The Company begins capitalizing costs once the property title is obtained until the property is developed to a point of lease or sale. Such capitalized costs also include borrowing costs that are directly attributable to the property concerned. The Company begins capitalizing borrowing costs when it incurs expenditures for the properties in question and when it undertakes activities that are necessary to prepare these properties for their intended use.
An investment property is derecognized upon disposal or when the investment property is permanently withdrawn from use and no future economic benefits are expected from the disposal. Prior to its disposal, the carrying value of the investment property is adjusted to reflect its fair value. This adjustment shall be recorded as a fair value gain or loss. Any remaining gain or loss arising on derecognition of the property (calculated as the difference between the net disposal proceeds and the carrying amount of the asset) is included in profit or loss in the period in which the property is derecognized.
Impairment of long-lived assets
The Company assesses at each reporting date whether there is an indication that an asset may be impaired. If any indication exists, or when annual impairment testing for an asset is required - when intangible assets are not yet available for use, the Company estimates the asset's recoverable amount.
The recoverable amount is the higher of an asset's or cash-generating unit's fair value less costs of disposal and value in use. In assessing value in use, the estimated future cash flows are discounted to their present value using a pre-tax discount rate that reflects current market assessments of the time value of money and the risks specific to the asset. For an asset that does not generate largely independent cash inflows, the recoverable amount is determined for the cash-generating unit to which the asset belongs.
An impairment loss is recognized when the carrying amount of an asset, or its cash-generating unit, exceeds its recoverable amount. A cash-generating unit is the smallest identifiable group of assets that generates cash inflows that are largely independent of the cash inflows from other assets of groups of assets. Impairment losses are recognized in profit or loss.
Taxation
Income tax expense represents the sum of tax currently payable and deferred tax.
Current income tax
Current income tax assets and liabilities are measured at the amount expected to be recovered from or paid to the taxation authorities. The tax rates and tax laws used to compute the amount are those that are substantively enacted at the end of each reporting period.
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
Deferred income tax
Deferred income tax is provided using the liability method on temporary differences, at the end of each reporting period, between the tax basis of assets and liabilities and their carrying amounts for financial reporting purposes.
Deferred income tax assets and liabilities are recognized for all taxable temporary differences, except:
-
where the deferred income tax assets or liability arises from the initial recognition of goodwill or of an asset or liability in a transaction that is not a business combination and, at the time of the transaction, affects neither the accounting profit nor taxable profit or loss; and
-
in respect of taxable or deductible temporary differences associated with investments in subsidiaries, associates and joint ventures, where the timing of the reversal of the temporary differences can be controlled by the parent, investor or venture and it is probable that the temporary differences will not reverse in the foreseeable future.
Deferred income tax assets are recognized for all deductible temporary differences, carry forward of unused tax credits and unused tax losses, to the extent that it is probable that taxable profit will be available against which the deductible temporary differences and the carry forward of unused tax credits and unused tax losses can be utilized.
The carrying amount of deferred tax assets is reviewed at the end of each reporting period and reduced to the extent that it is no longer probable that sufficient taxable profits will be available to allow all or part of the deferred income tax asset to be utilized. Unrecognized deferred income tax assets are reassessed at the end of each reporting period and are recognized to the extent that it has become probable that future taxable profit will allow the deferred tax asset to be recovered.
Current and deferred income tax relating to items recognized in OCI or directly in equity is recognized in OCI or in the consolidated statements of changes in equity and not in profit or loss.
Deferred income tax assets and deferred income tax liabilities are offset if, and only if, a legally enforceable right exists to set off current tax assets against current tax liabilities and the deferred tax assets and liabilities relate to income taxes levied by the same taxation authority on either the same taxable entity or different taxable entities which intend to either settle current tax liabilities and assets on a net basis, or to realize the assets and settle the liabilities simultaneously, in each future period in which significant amounts of deferred tax assets or liabilities are expected to be settled or recovered.
Share-based payments
The Company accounts for share-based payment expense using the Black-Scholes option pricing model. Accordingly, the fair value of the options at the date of grant is accrued with a corresponding credit to share-based payment reserves, and charged to earnings over the vesting period. If and when the stock options are exercised, the applicable amounts of equity compensation reserve are transferred to share capital. In situations where equity instruments are issued to non-employees and some or all of the goods or services received by the entity as consideration cannot be specifically identified, they are measured at the fair value of the stock-based compensation. Otherwise, stock-based compensation is measured at the fair value of the goods or services received.
Share capital
Common shares are classified as equity. Transaction costs directly attributable to the issue of common shares and share options are recognized as a deduction from equity, net of any tax effects.
The Company has adopted a relative fair value method with respect to the measurement of shares and warrants issued as units. Under the relative fair value method, the Company first determines the fair values of the shares and warrants included in the units, then allocates the unit price based on the relative fair value of the instruments included in the unit. The Company considers the fair value of common shares issued in these types of transactions to be determined by the closing quoted bid price on the issuance date. The fair value of the warrants included is determined using the Black-Scholes option pricing model. Any fair value attributed to the warrants is recorded to reserves.
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
Provisions
Provisions are recognized when the Company has a present obligation (legal or constructive) that has arisen as a result of a past event and it is probable that a future outflow of resources will be required to settle the obligation, provided that a reliable estimate can be made of the amount of the obligation.
Provisions are measured at the present value of the expenditures expected to be required to settle the obligation using a pre-tax rate that reflects current market assessments of the time value of money and the risk specific to the obligation. The increase in the provision due to passage of time is recognized as interest expense.
Loss per share
Loss per share is calculated based on the weighted average number of shares outstanding during the period. The Company follows the treasury stock method for the calculation of diluted loss per share. Under this method, dilution is calculated based upon the net number of common shares issued should "in-the-money" options and warrants be exercised and the proceeds be used to repurchase common shares at the average market price in the year. Dilution from convertible securities is calculated based on the number of shares to be issued after taking into account the reduction of the related after-tax interest expense.
Basic loss per share is computed by dividing net loss by the weighted average number of common shares outstanding during the reporting period. Diluted earnings per share is computed similar to basic loss per share except that the weighted average shares outstanding are increased to include additional shares from the assumed exercise of share options and warrants, if dilutive.
Segmented reporting
In identifying its operating segments, management generally follows the Company's activities. An operating segment is a component of the Company that engages in business activities from which it may earn revenues and incur expenses, including revenues and expenses that relate to transactions with any of the Company's other components. The operating results of the segments are reviewed regularly by the Company's Chief Executive Officer (who is considered the chief operating decision maker) to make decisions about resources to be allocated to the segment and assess its performance, and for which discrete financial information is available.
Convertible debentures
The Company has issued convertible debentures which, on conversion, must be satisfied entirely in common shares of the Company.
The Company reviews the terms of its convertible debentures to determine whether there are embedded derivatives, including the embedded conversion option that is required to be separated and accounted for as individual derivative financial instrument or equity component.
The debenture host contracts are subsequently recorded at amortized cost at each reporting date, using the effective interest method. The embedded derivatives are subsequently recorded at fair value at each reporting date, with changes in fair value recognized in profit (loss).
The Company presents its embedded derivative liability and related debenture host contracts as separate instruments on the statement of financial position.
New accounting pronouncements
IAS 1 Presentation of Financial Statements
As at January 1, 2023, the Company adopted amendments made to IAS 1 and IFRS Practice Statement 2 Making Materiality Judgements in which guidance and examples are provided to help entities apply materiality judgments to accounting policy disclosures. The adoption of this amendment did not have a material impact on the audited consolidated financial statements.
IAS 8 Accounting Policies, Changes in Accounting Estimates and Errors
As at January 1, 2023, the Company adopted amendments made to International Accounting Standard 8 Accounting Policies, Changes in Accounting Estimates and Errors ("IAS 8") which introduces a new definition of 'accounting estimates'. The amendments clarify the distinction between changes in accounting estimates and changes in accounting policies and the correction of errors. Also, the amendments clarify how entities use measurement techniques and inputs to develop accounting estimates. The adoption of this amendment did not have a material impact on the audited consolidated financial statements.
IAS 12 Income taxes
As at January 1, 2023, the Company adopted amendments made to International Accounting Standard 12 Income Taxes ("IAS 12"). IAS 12 was amended so that it no longer applies to transactions that give rise to equal and offsetting temporary differences. As a result, companies will need to recognize a deferred tax asset and a deferred tax liability for temporary differences arising on initial recognition of a lease and a decommissioning provision. The amendments apply to annual reporting periods beginning on or after January 1, 2023, with earlier application permitted. The adoption of this amendment did not have a material impact on the audited consolidated financial statements.
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
IAS 1 Presentation of Financial Statements
As at January 1, 2023, the Company early adopted amendments made to IAS 1, Classification of Liabilities as Current or Non-Current, which provides a more rigorous approach to the classification of liabilities as current or non-current based on the contractual arrangements in place at the reporting date. The amendment introduces a definition of 'settlement' to make clear that settlement refers to the transfer to the counterparty of cash, equity instruments, other assets or services. The adoption of this amendment resulted in certain convertible debentures, and related convertible debenture derivatives, being classified as current liabilities because the company does not have the contractual right to defer settlement for at least twelve months from the reporting date.
New accounting pronouncements not yet effective
There are no new accounting pronouncements not yet effective which are expected to have a material impact on the consolidated financial statements.
4 Material accounting estimates and judgments
The preparation of these consolidated financial statements in conformity with IFRS requires management to make judgments and estimates and form assumptions that affect the reporting amounts of assets and liabilities at the date of the financial statements and reported amounts of revenues and expenses during the reporting period.
On an ongoing basis, management evaluates its judgments and estimates in relation to assets, liabilities, revenue, and expenses. Management uses historical experience and various other factors it believes to be reasonable under the given circumstances as the basis for its judgments and estimates. Actual outcomes may differ from these estimates under different assumptions and conditions. Revisions to estimates and the resulting effects on the carrying amounts of the Company's assets and liabilities are accounted for prospectively.
Key areas of judgment
Functional currency
The functional currency for the Company and its subsidiaries is the currency of the primary economic environment in which each operates. The Company's functional and local currency is the Canadian dollar. The functional currency of the Company's subsidiaries is the US dollar. The determination of functional currency may require certain judgments to determent the primary economic environment. The Company reconsiders the functional currency used when there is a change in events and conditions which determined the primary economic environment.
Assets' carrying values and impairment charges
In determining carrying values and impairment charges the Company looks at recoverable amounts, defined as the higher of value in use or fair value less cost to sell in the case of assets, and at objective evidence that identifies significant or prolonged decline of fair value on financial assets indicating impairment. These determinations and their individual assumptions require that management make a decision based on the best available information at each reporting period.
Going concern of operations
These consolidated financial statements do not give effect to adjustments, if any, that would be necessary should the Company be unable to continue as a going concern. If the going concern assumption was not used, then the adjustments required to report the Company's assets and liabilities on a liquidation basis could be material to these financial statements.
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
Marketable securities
The determination of the fair value requires significant judgement by the Company, on the date of purchase, and at each reporting date thereafter, consistent with fair value accounting guidance in accordance with IFRS 13, Fair Value Measurement.
Tax
Uncertainties exist with respect to the interpretation of complex tax regulations and the amount and timing of future taxable income. Deferred tax assets are recognized for all unused tax losses to the extent that it is probable that taxable earnings will be available against which the losses can be utilized. Significant management judgment is required to determine the amount of deferred tax assets that can be recognized, based upon the likely timing and the level of future taxable earnings together with future tax planning strategies.
Key sources of estimation uncertainty
Share-based payments
Amounts recorded for share-based payments are subject to the inputs used in the Black-Scholes option pricing model, including estimates such as volatility, forfeiture, dividend yield and expected option life.
Convertible debentures
Convertible debentures are separated into their liability and equity components on the statement of financial position. The liability component is initially recognized at fair value, calculated as the net present value of the liability, using estimated interest rates based upon non-convertible debentures issued by comparable issuers, and accounted for at amortized cost using the effective interest rate method.
Derivative Liability
The Company measures the fair value of the derivative by reference to the fair value on the convertible debenture issuance date with an estimated life ending on the convertible debenture maturity date and revalues them at each reporting date. In determining the fair value for the derivative liability, the Company used the Geometric Brownain motion model with the following assumptions: annualized volatility rate; market price of shares at the reporting date; risk-free interest rate; the remaining expected life of the embedded derivatives and an exchange rate at the reporting date. Changes to these estimates could result in the fair value of the derivative liability being less than or greater than the amount recorded.
Joint venture settlement obligation
The liability is initially recognized at fair value, calculated as the net present value of the liability, using estimated interest rates based upon debt issued by comparable issuers, and accounted for at amortized cost using the effective interest rate method.
5 Loan Receivable
| December 31, 2023 | December 31, 2022 | |||||
| Opening balance | $ | $ | ||||
|
Funds received, net of advances granted |
( |
) | ||||
| Shares for debt | ( |
) | ||||
| Interest receivable | ||||||
| Ending receivable balance - classified as current | $ | $ |
As at December 31, 2023, the Company had a loan receivable of $
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
On February 17, 2022, the Company settled $
On April 20, 2022, the Company entered into a promissory note with Captiva for $
6 Sage Ranch
| December 31, 2023 | December 31, 2022 | |||||
| Opening balance | $ | $ | ||||
| Land appraisal & related fees | ||||||
| Captiva Joint Venture Settlement | ||||||
| Accretion | ||||||
| Water rights | ||||||
| Unrealized foreign exchange | ( |
) | ||||
| $ | $ |
On September 27, 2011, the Company acquired property in Tehachapi, California (the "Sage Ranch Project" or "Tehachapi Property") with the intent to develop a residential subdivision. The Company applies the cost model for its investment property and has recorded $depreciation as the project is still under development.
On October 6, 2018, the Company entered into an agreement to sell a
On August 10, 2020, the Company entered into an option and joint venture agreement (the "Option and Joint Venture Agreement") with Captiva amending the terms of the Sale Agreement.
Pursuant to the terms of the Option and Joint Venture Agreement, Captiva's
1. Captiva paying the Company a cash payment of $
2. Captiva issuing the Company common shares (the "Share Payment") (Captiva satisfied this payment in 2018 through the issuance of
3. Captiva funding the applicable permitting and development costs for the Sage Ranch Project (Captiva was in default on such funding obligations).
Captiva had until the earlier of: (i) August 20, 2025 and (ii) the date the Company receives final approval from the City of Tehachapi (and other required regulatory approval) to build houses on the Tehachapi Property, to exercise the Option.
If Captiva made the payments summarized above by the required time, Captiva would have exercised the Option and automatically acquired a
On June 22, 2023 and amended on August 21, 2023, the Company entered into an agreement with Captiva whereby the Company will pay Captiva $
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
On November 13, 2023, the Sage Ranch Project received Planning Commission approval for the Sage Ranch Precise Development Plan ("PDP").
During the year ended December 31, 2023, the Company entered into an option agreement to purchase up to 115 acre-feet of water rights at USD $
The fair value of the development project as a whole is not possible to reliably estimate as of yet, given we have not yet received all necessary permits or begun construction.
7 Marketable securities and investment in associate
| December 31, 2022 Fair value |
Acquired | Disposed | FX Adjusted | December 31, 2023 Fair value |
|||||||||||
|
Green Matters |
$ | $ | $ | $ | ( |
) | $ | ||||||||
|
Total |
$ | $ | $ | $ | ( |
) | $ |
| December 31, 2021 Fair value |
Acquired | Disposed | Gain/(Loss) | December 31, 2022 Fair value |
|||||||||||
|
Captiva |
$ | $ | $ | ( |
) | $ | $ | ||||||||
|
Green Matters |
|||||||||||||||
|
Total |
$ | $ | $ | ( |
) | $ | $ |
During the year ended December 31, 2022, the Company received
On February 15, 2022, the Company settled $
During the year ended December 31, 2022, the Company sold
| Investment in associate | December 31, 2023 | December 31, 2022 | ||||
| Opening balance | $ | $ | ||||
| Transition from marketable security to equity method | ||||||
| Shares for debt transaction | ||||||
| Equity pick-up | ( |
) | ||||
| Disposition | ( |
) | ||||
| $ | $ |
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
8 Power project acquisition and development costs
| Development Costs | Acquisition Costs | Total | |||||||
| December 31, 2021 | $ | $ | $ | ||||||
| Additions | |||||||||
| Unrealized foreign exchange | |||||||||
| December 31, 2022 | $ | $ | $ | ||||||
| Additions | |||||||||
| Unrealized foreign exchange | ( |
) | ( |
) | ( |
) | |||
| December 31, 2023 | $ | $ | $ |
Montalva Project
In April 2013, the Company entered into a 50/50 arrangement to create AG Solar One LLC ("AG Solar") with Alterra Power Corp. ("Alterra") (the "Arrangement"). The Arrangement was created to develop 100 Megawatts ("MW's") of solar generation capacity in Puerto Rico under a Master Renewable Power Purchasing and Operating Agreement ("PPOA"), dated December 20, 2011, and amended on March 16, 2012 (the "Master Agreement"), with Puerto Rico Electric Power Authority ("PREPA") which the partnership through its wholly owned subsidiary, PBJL Energy Corporation ("PBJL"), currently has rights to.
On July 12, 2013, the Company signed a Membership Interest Purchase and Sale Agreement ("MIPSA") with Magma Energy (U.S.) Corp. ("Magma"), a subsidiary of Alterra, and amended on October 11, 2013 whereby the Company will purchase from Alterra its
Under the terms of the Master Agreement, the Company filed its 100 MW AC Montalva Solar Project with PREPA ("Montalva" or the "Montalva Project")) on September 5, 2013, requesting an interconnection evaluation and issuance of a project specific PPOA for Montalva. After numerous delays by PREPA and failed attempts by the Company requesting the interconnection evaluation and issuance of a project specific PPOA for Montalva, the Company filed a Notice of Default under the Master Agreement with PREPA on September 24, 2014. PREPA responded to the Notice of Default on November 3, 2014, taking the position that it had other PPOAs issued that would exceed its system renewable capacity and could not accept any additional renewable projects and further had met its obligations under the Master Agreement.
On May 15, 2015, the Company, filed a legal action against PREPA in the courts of Puerto Rico in order to protect and enforce its rights under the Master Agreement. On September 9, 2016, the Superior Court of Puerto Rico denied an application by PREPA to have the case for contractual enforcement and damages dismissed. The Company may now proceed to have the court enforce the agreement, or in lieu of enforcement, direct PREPA to pay US $
On February 6, 2019, the Company announced that PREPA wanted to re-open negotiations to move forward the Montalva Project. The Company met with PREPA representatives in 2019 and commenced negotiations.
On May 19, 2020, the Company announced that it has reached agreement with the PREPA on a
On August 7, 2020, the Company received unanimous approval from the Puerto Rico Energy Bureau and the Montalva PPOA moved on to final approval by the Puerto Rico Financial Oversight and Management Board (FOMB). On February 26, 2021, the FOMB approved two projects and excluded the approval of the Montalva Project. The Company began the process of seeking avenues to have the FOMB decision overturned or to have the FOMB approve the projects approved by PREPA. As part of this process, the Company together with PREPA entered into negotiations in front of the Puerto Rico Energy Bureau ( "PREB").
On October 3, 2023, the Company announced that further to many years of litigation with the PREPA in both the Commonwealth and US Federal Courts, plus litigation in front of the PREB, both parties have executed a formal settlement agreement beneficial to both parties.
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
The agreement will then head to the FOMB for approval. The perfunctory technical work on interconnection with Luma Energy, LLC, who is the power company responsible for power distribution and power transmission in the Commonwealth of Puerto Rico, will happen after PREB and FOMB approval.
Land Lease Option Agreements
Included in the power project development and construction costs balance for AG Solar are costs related to land lease option payments.
The below Montalva and Lajas Farm Option Agreements provide the option to enter into a series of land leases with a term of
The Company entered into an option agreement dated September 9, 2013, which gives the Company the exclusive right and option to lease land in Puerto Rico (the "Montalva Option Agreement"). On December 1, 2013, the Company entered into an option agreement with renewal options which gives the Company the exclusive right and option to lease an additional site in Puerto Rico for the Montalva Project ("Original Lajas Farm Option"). On January 1, 2014, the Company entered into two additional option agreements for five years each (the "Secondary Lajas Farm Option"), which gives the Company the exclusive right and option to lease additional land in Lajas, Puerto Rico to further expand the Montalva Project (collectively, the "Lajas Farm Option Agreements").
On various dates since execution of the land lease option agreement, the parties have executed separate amendments to extend the expiration date. During the year ending December 31, 2023, the Company made payment totalling USD$
Annual Impairment Test
As the intangible asset is not yet ready for use, management performs an annual impairment test on the statement of financial position date. The recoverable amount of the Montalva Project was determined based on a fair value less costs of disposal ("FVLCD") model utilizing a replacement cost approach.
Significant assumptions used in the determination of the recoverable amount were estimated costs to a market participant of acquiring a similarly advanced project at current market rates.
As a result of the impairment test performed, the recoverable amount was determined to be higher than the carrying value of the asset, which did not result in an impairment (December 31, 2022 - $
9 Accounts payable and accrued liabilities
| December 31, 2023 | December 31, 2022 | |||||
| Accounts payable | $ | $ | ||||
| Accrued liabilities | ||||||
| Accrued interest | ||||||
| Total accounts payable and accrued liabilities | $ | $ |
During the year ended December 31, 2023, the Company recorded a gain on reversal of accounts payable of $
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
10 Loans payable
| Shareholder loans | December 31, 2023 | December 31, 2022 | ||||
| Principal opening balance | $ | $ | ||||
| Net Addition | ||||||
| Unrealized foreign exchange | ( |
) | ||||
| Principal ending balance | $ |
In September 2014, the Company received two loans from an independent shareholder that bear interest of
| Director loans | December 31, 2023 | December 31, 2022 | ||||
| Principal opening balance | $ | $ | ||||
| Repayment | ( |
) | ||||
| Unrealized foreign exchange | ( |
) | ||||
| Principal ending balance | $ | $ |
The loans bear interest of between
| Executive loans | December 31, 2023 | December 31, 2022 | ||||
| Principal opening balance | $ | $ | ||||
| Addition loan | ||||||
| Net repayments | ( |
) | ( |
) | ||
| Unrealized foreign exchange | ||||||
| Principal ending balance | $ | $ |
As at December 31, 2023, the Company had outstanding loans from the CEO and the CEO's spouse of $
| Promissory note | December 31, 2023 | December 31, 2022 | ||||
| Principal opening balance | $ | $ | ||||
| Additions | ||||||
| Settled by shares | ( |
) | ||||
| Principal ending balance | $ | $ |
During the year ended December 31, 2022, the Company settled $
During the year ended December 31, 2023, the Company received a $
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
11 Convertible debenture
On June 30, 2023, the Company issued $
Based on the discount factor of
| December 31, 2023 | December 31, 2022 | |||||
| Opening balance | $ | $ | ||||
| Principal issued | ||||||
| Equity portion | ( |
) | ||||
| Capitalized transaction costs | ( |
) | ||||
| Detachable warrants | ( |
) | ||||
| Accretion | ||||||
| Ending balance, classified as long-term | $ | $ |
On December 13, 2023, the Company issued a USD$
The Company estimated the fair value of the embedded derivative, representing the conversion option, by reference to a Geometric Brownain motion model. Based on the following key weighted average inputs: annualized volatility of
| Convertible Debenture | December 31, 2023 | December 31, 2022 | ||||
| Opening balance | $ | $ | ||||
| Principal issued | ||||||
| Capitalized transaction costs | ( |
) | ||||
| Detachable warrants | ( |
) | ||||
| Derivative liability | ( |
) | ||||
| Accretion | ||||||
| Foreign exchange | ( |
) | ||||
| Ending balance, classified as short-term | $ | $ |
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
| Derivative Liability | December 31, 2023 | December 31, 2022 | ||||
| Opening balance | $ | $ | ||||
| Original valuation | ||||||
| Foreign exchange | ( |
) | ||||
| Fair value adjustment | ( |
) | ||||
| Ending balance, classified as short-term | $ | $ |
12 Joint venture settlement obligation
On June 22, 2023 and amended on August 21, 2023, the Company entered into an agreement with Captiva to settle the outstanding joint-venture agreement on Sage Ranch between the Company and Captiva, whereby the Company will pay Captiva $
| December 31, 2023 | December 31, 2022 | |||||
| Opening balance | $ | $ | ||||
| Joint-venture settlement obligation | ||||||
| Accretion | ||||||
| Ending balance | $ | $ | ||||
| Classified as current | $ | $ | ||||
| Classified at non-current | $ | $ |
13 Share capital and reserves
a) Authorized and outstanding
As at December 31, 2023, the Company had unlimited authorized common shares without par value and
b) Share issuances
Fiscal 2023
- On May 10, 2023, the Company closed a non-brokered private placement and issued
- During the year,
- During the year,
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
Fiscal 2022
- On March 28, 2022, the Company closed a non-brokered private placement and issued
- On November 29, 2022, the Company closed a non-brokered private placement and issued
- During the year ended December 31, 2022, the Company issued
- During the year ended December 31, 2022,
- During the year ended December 31, 2022, the Company issued
Fiscal 2021
- On January 27, 2021, the Company closed a non-brokered private placement and issued
- On February 24, 2021, the Company issued
- On April 22, 2021, the Company settled debt in the total amount of $
- On June 8, 2021, $
- On July 12, 2021, $
On July 12, 2021, a principal amount of $
- On September 14, 2021, the Company closed a non-brokered private placement and issued
- On November 8, 2021, the Company closed a non-brokered private placement and issued
- During the year ended December 31, 2021,
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
- During year ended December 31, 2021,
c) Stock options
The Board of Directors may grant options to purchase shares from time to time, subject to the aggregate number of common shares of the Company issuable under all outstanding stock options of the Company not exceeding 10% of the issued and outstanding common shares of the Company at the time of the grant. The options are exercisable over a period established at the time of issuance to buy shares of the Company for a period not exceeding ten years, at a price not less than the minimum price permitted by the exchange. The vesting schedule for an option, if any, shall be determined by the Board of Directors at the time of issuance.
In addition to the Stock Option Plan, the Company has established a Performance Share Plan dated effective May 6, 2021, in connection with the issue of the Performance Shares under the Sandford Solar Projects Consulting Agreement. Mr. Sandford is the only participant under the Performance Share Plan. It is contemplated that the Company will issue
- On February 9, 2023, the Company issued
- On February 9, 2023, the Company issued
- On November 15, 2023, the Company issued
- On November 30, 2023, the Company issued
- On January 25, 2022, the Company issued
- On June 23, 2022, the Company issued
- On October 11, 2022, the Company issued
- On July 7, 2021, the Company issued
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
- On May 25, 2021, the Company issued
- On January 20, 2021, the Company issued
- Total stock options granted during the year ended December 31, 2023 were
A summary of stock option information as at December 31, 2023, December 31, 2022 and December 31, 2021 is as follows:
| December 31, 2023 | December 31, 2022 | |||||||||||
| Number of shares |
Weighted average exercise price |
Number of shares |
Weighted average exercise price |
|||||||||
| Outstanding - beginning of year | $ | $ | ||||||||||
| Granted | ||||||||||||
| Exercised | ( |
) | ( |
) | ||||||||
| Expired | ( |
) | ( |
) | ||||||||
| Outstanding - end of year | $ | $ | ||||||||||
| December 31, 2021 | ||||||
| Number of shares |
Weighted average exercise price |
|||||
| Outstanding - beginning of year | $ | |||||
| Granted | ||||||
| Exercised | ( |
) | ||||
| Expired | ||||||
| Outstanding - end of year | $ | |||||
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
The following table discloses the number of options and vested options outstanding as at December 31, 2023:
| Number of options outstanding and exercisable |
Weighted average exercise price |
Weighted average remaining contractual life (years) |
| $ |
|
|
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
| $ |
|
* these options were exercised subsequent to year end
** these options expired unexercised subsequent to year end
***
d) Warrants
Fiscal 2023
- On May 10, 2023, the Company issued
- On June 30, 2023, as part of the terms of the convertible debenture offering, the Company issued
- On December 13, 2023, as part of the terms of the convertible debenture offering, the Company agreed to issue
Fiscal 2022
- On March 28, 2022, the Company issued
- On November 29, 2022, the Company issued
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
- During the year ended December 31, 2022, the Company issued
Fiscal 2021
- On January 27, 2021, the Company issued
- On June 8, 2021, $
The fair value of these warrants at the date of grant was estimated at $
- On July 12, 2021, $
On July 12, 2021, a principal amount of $
The fair value of these warrants at the date of grant was estimated at $
- On September 14, 2021, the Company issued
The fair value of these warrants at the date of grant was estimated at $
- On November 8, 2021, the Company issued
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
The following table discloses the number of warrants outstanding as at:
| December 31, 2023 | December 31, 2022 | |||||||||||
| Number of shares |
Weighted average exercise price |
Number of shares |
Weighted average exercise price |
|||||||||
| Outstanding - beginning of year | $ | $ | ||||||||||
| Granted | ||||||||||||
| Exercised | ( |
) | ( |
) | ||||||||
| Expired | ( |
) | ( |
) | ||||||||
| Outstanding - end of year | $ | $ | ||||||||||
| December 31, 2021 | ||||||
| Number of shares |
Weighted average exercise price |
|||||
| Outstanding - beginning of year | $ | |||||
| Granted | ||||||
| Exercised | ( |
) | ||||
| Expired | ( |
) | ||||
| Outstanding - end of year | $ | |||||
| Outstanding warrants | Expiry Date | Exercise price |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
*these warrants were exercised subsequent to year end
**
e) Convertible equity reserve
| December 31, 2023 | December 31, 2022 | December 31, 2021 | |||||||
| Opening balance | $ | $ | $ | ||||||
| Equity reserve related to convertible debenture (note 11) | |||||||||
| Ending balance | $ | $ | $ |
On June 30, 2023, the Company issued an $
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
14 Financial instruments
The Company examines the various financial instrument risks to which it is exposed and assesses the impact and likelihood of those risks.
The following tables summarize the valuation of the Company's financial assets and liabilities reported at fair value by the fair value hierarchy levels:
| December 31, 2023 | December 31, 2022 | ||||||
| Fair Value Hierarchy |
Fair value $ |
Fair value $ |
|||||
| Financial assets | |||||||
| Fair value through profit and loss ("FVTPL") | |||||||
| Cash | Level 1 | ||||||
| Marketable securities | Level 2 | ||||||
| Financial liabilities | |||||||
| Other financial liabilities | |||||||
| Convertible debenture derivative | Level 3 |
Fair value
Financial instruments measured at fair value are grouped into Level 1 to 3 based on the degree to which fair value is observable:
Level 1 - quoted prices in active markets for identical securities
Level 2 - significant observable inputs other than quoted prices included in Level 1
Level 3 - significant unobservable inputs.
Convertible debenture derivative is considered to be a Level 3 classification as certain inputs are not based on observable market data. See Note 11 for details on inputs utilized in the valuation.
The Company did not move any instruments between levels of the fair value hierarchy during the years ended December 31, 2023, 2022, and 2021.
The Company's financial instruments include cash, marketable securities, other receivables, related party loan receivable, accounts payable and accrued liabilities, loan payable and promissory notes, joint venture settlement obligation, convertible debentures and convertible debenture derivatives. The carrying values of other receivables, related company loan receivable and accounts payable and accrued liabilities and loan payable and promissory notes approximate their fair values due to their relatively short periods to maturity.
The fair value of the marketable securities is based on recent transaction prices.
The fair value of the joint venture settlement obligation and convertible debentures are initially recorded at fair value and are evaluated by the Company based on level 2 inputs such as discounted future interest and principal payments using current market interest rates of instruments using similar terms. These instruments are subsequently measured through amortized cost, with accretion and interest income recognized through the statement of loss and comprehensive loss.
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
Interest rate risk
Interest rate risk is the risk that the fair value or future cash flows of a financial instrument will fluctuate because of changes in market interest rates. The Company is exposed to interest rates through the interest earned on cash balances, deposits, convertible debentures and loans; however, management does not believe this exposure is significant as most items are at fixed interest rates.
Credit risk
The Company is exposed to credit risk through its cash, which is held in large Canadian financial institutions with high credit rating, other receivables and the loan receivable. The Company believes the credit risk is insignificant for the cash and other receivables and moderate for the loan receivable with Captiva. The Company's exposure is limited to amounts reported within the statement of financial position.
Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they fall due. The Company manages liquidity risk through the management of its capital structure. In order to meet its financial obligations, the Company will need to generate cash flow from the sale or otherwise disposition of property or raise additional funds. The following table summarizes the remaining contractual maturities of the Company's financial liabilities and operating commitments:
| Less than 1 year | Over 1 year | Total | |||||||
| Accounts payable and accrued liabilities | $ | $ | $ | ||||||
| Loan payables and promissory notes | |||||||||
| Joint venture settlement obligation | |||||||||
| Convertible debenture | |||||||||
| Convertible debenture derivative | |||||||||
| Total | $ | $ | $ |
Foreign exchange risk
The Company operates in Canada and the United States and is exposed to foreign exchange risk arising from transactions denominated in foreign currencies.
The operating results and the financial position of the Company are reported in Canadian dollars. Fluctuations of the operating currencies in relation to the Canadian dollar will have an impact upon the reported results of the Company and may also affect the value of the Company's assets and liabilities.
The Company's financial assets and liabilities as at December 31, 2023 are denominated in Canadian Dollars and United States Dollars and are set out in the following table:
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
| Canadian Dollars | US Dollars | Total | |||||||
| Financial assets | |||||||||
| Cash | $ | $ | $ | ||||||
| Other receivables | |||||||||
| Related company loan receivable | |||||||||
| Marketable securities | |||||||||
| Financial liabilities | |||||||||
| Accounts payable and accrued liabilities | $ | ( |
) | $ | ( |
) | $ | ( |
) |
| Loan payable | ( |
) | ( |
) | ( |
) | |||
| Joint venture settlement obligation | ( |
) | ( |
) | |||||
| Convertible debenture | ( |
) | ( |
) | ( |
) | |||
| Convertible debenture derivative | ( |
) | ( |
) | |||||
| Net financial liabilities | $ | ( |
) | $ | ( |
) | $ | ( |
) |
The Company's financial assets and liabilities as at December 31, 2022 are denominated in Canadian Dollars and United States Dollars and are set out in the following table:
| Canadian Dollars | US Dollars | Total | |||||||
| Financial assets | |||||||||
| Cash | $ | $ | $ | ||||||
| Other receivables | |||||||||
| Related company loan receivable | |||||||||
| Marketable securities | |||||||||
| Financial liabilities | |||||||||
| Accounts payable and accrued liabilities | $ | ( |
) | $ | ( |
) | $ | ( |
) |
| Loan payable | ( |
) | ( |
) | |||||
| Net financial liabilities | $ | $ | ( |
) | $ | ( |
) |
The Company's reported results will be affected by changes in the US dollar to Canadian dollar exchange rate. As of December 31, 2023, a
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
15 Capital management
The Company's objective when managing capital is to safeguard the Company's ability to continue as a going concern such that it can continue to provide returns for shareholders and benefits for other stakeholders. The primary use of capital will be used for the development of its properties and acquisitions.
The Company considers the items included in convertible debentures, short-term loans and shareholders' equity as capital. The Company manages the capital structure and makes adjustments to it in light of changes in economic conditions, business opportunity and the risk characteristics of the underlying assets. In order to maintain or adjust its capital structure, the Company may issue new shares or return capital to its shareholders. The Company is not exposed to externally imposed capital requirements.
Management reviews its capital management approach on an ongoing basis. During the year ended December 31, 2023, there has been no change in the Company's management of capital policies.
16 Segment disclosures
The Company operations are conducted in three reportable segments: real estate development in the United States (“Real Estate”), solar energy projects in Puerto Rico (“Solar Energy”) and corporate headquarters located in Canada (“Corporate”). The Company reports information about its operating segments based on the manner in which the Company's chief decision maker views and evaluates the Company's business.
As the Company capitalizes all directly attributable costs related to its Real Estate and Solar Energy segments in accordance with the accounting policy for investment properties and intangibles assets, all material items of profit and loss are attributable to the Corporate segment.
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
| |
As at December 31, 2023 | As at December 31, 2022 | ||||||||||||||||||||||
| Real Estate |
Solar Energy |
Corporate | Total | Real Estate |
Solar Energy |
Corporate | Total | |||||||||||||||||
| Assets | $ | $ | $ | $ | $ | $ | $ | $ | ||||||||||||||||
| Total assets | ||||||||||||||||||||||||
|
Net additions to non-current, non-financial assets |
||||||||||||||||||||||||
|
Total liabilities |
|
|
|
|
|
|
|
|
||||||||||||||||
| Loss | ||||||||||||||||||||||||
| Interest expense | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||||||
| Interest income | ||||||||||||||||||||||||
| Loss | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ( |
) | ||||||||
| |
As at December 31, 2021 | |||||||||||
| Real Estate |
Renewable Energy |
Corporate | Total | |||||||||
| Assets | $ | $ | $ | $ | ||||||||
| Total assets | ||||||||||||
|
Additions to non-current, non-financial assets |
||||||||||||
|
Total liabilities |
|
|
|
|
||||||||
| Loss | ||||||||||||
| Interest expense | ( |
) | ( |
) | ( |
) | ||||||
| Loss | ( |
) | ( |
) | ( |
) | ( |
) | ||||
Entity wide disclosures
Information about geographical areas:
| Canada | California | Puerto Rico | Total | |||||||||
| As at December 31, 2023 | ||||||||||||
| Non-current assets | $ | $ | $ | $ | ||||||||
| As at December 31, 2022 | ||||||||||||
| Non-current assets | $ | $ | $ | $ | ||||||||
| As at December 31, 2021 | ||||||||||||
| Non-current assets | $ | $ | $ | $ |
17 Related party transactions
Key management personnel are those persons having the authority and responsibility for planning, directing and controlling the activities of the Company, directly or indirectly. Key management personnel include officers, directors or companies with common directors of the Company.
The Company incurred the following expenses with key management personnel during the year ended December 31:
| 2023 | 2022 | 2021 | |||||||
| Consulting and management fees | $ | $ | $ | ||||||
| Share-based compensation expense | |||||||||
| Total | $ | $ | $ |
During the year ended December 31, 2023, the President of the Company charged the Company $
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
During the year ended December 31, 2023, a Company controlled by the CFO of the Company charged the Company $
During the year ended December 31, 2023, the Chief Executive Officer of the Company charged the Company $
During the year ended December 31, 2023, related party loan interest of US $
As at December 31, 2023, the Company had a receivable of $
On August 4, 2021, the Company declared USD $
As at December 31, 2023, the Company had $
18 Commitments and contingencies
As at December 31, 2023, the Company had the following commitments and contingencies outstanding:
| Within 1 year | Over 1 year | Total | |||||||
| PBJL Share transfer (ii) | $ | $ | $ |
i) The Company entered into four separate land lease options agreements with Jose Arturo Acosta, to lease land in the Municipality of Lajas and Guanica of Puerto Rico. The Company made initial payments on the execution date of each option agreement and will thereafter make certain payments over the term of the option periods. Subsequent to year end, the Company entered into additional extension agreements extending the option term on all agreements to December 31, 2024, and agreeing to make future payments totalling US$
ii) On April 23, 2013,
iii) On March 30, 2022, the Company executed a USD $
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
iv) Upon the Company closing certain development milestones allowing for an equity raise of at least US $
v) The Company is a party to a lawsuit with a former contractor. Both parties have filed complaints seeking damages and the outcome is uncertain at this time.
19 Income taxes
A reconciliation of the (provision) recovery for income taxes is as follows:
| Year ended December 31, | |||||||||
| 2023 | 2022 | 2021 | |||||||
| Loss before income taxes | $ | ( |
) | $ | ( |
) | $ | ( |
) |
| Statutory tax rate | |||||||||
| Recovery of income tax taxes based on combined federal and provincial statutory rates | ( |
) | ( |
) | ( |
) | |||
| Change in statutory, foreign tax, foreign exchange rates and other | ( |
) | |||||||
| Permanent differences | |||||||||
| Share issue cost | ( |
) | ( |
) | ( |
) | |||
| Adjustment to prior years provision versus statutory tax returns and expiry of non-capital losses | |||||||||
| Changes in unrecognized deductible differences | |||||||||
| Total income tax expense (recovery) | $ | $ | $ | ||||||
The significant components of the Company's deferred tax assets that have not been included on the consolidated statement of financial position are as follows:
| 2023 | 2022 | 2021 | |||||||
| Deferred tax assets | |||||||||
| Allowable capital losses | $ | $ | $ | ||||||
| Debt with accretion | |||||||||
| Marketable securities | |||||||||
| Joint venture settlement obligation | |||||||||
| Non-capital and net operating loss carry forward | |||||||||
| Unrecognized deferred tax assets | ( |
) | ( |
) | ( |
) | |||
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
The significant components of the Company's temporary differences, unused tax credits and unused tax losses that have not been included on the consolidated statement of financial position as deferred tax assets are as follows:
| December 31, 2023 | December 31, 2022 | |||||||||||
| Temporary Differences | $ | Expiry | $ | Expiry | ||||||||
| Share issue costs |
|
|
||||||||||
| Allowable capital losses |
|
|
||||||||||
| Marketable securities |
|
|
||||||||||
| Joint venture settlement obligation |
|
|
||||||||||
| Non-capital losses available for future periods |
|
|
||||||||||
| Canada |
|
|
||||||||||
| USA |
|
|
||||||||||
| USA |
|
|
||||||||||
| December 31, 2021 | ||||||
| Temporary Differences | $ | Expiry | ||||
| Share issue costs |
|
|||||
| Allowable capital losses |
|
|||||
| Marketable securities |
|
|||||
| Non-capital losses available for future periods |
|
|||||
| Canada |
|
|||||
| USA |
|
|||||
20 Supplemental cash flow information
| Supplemental cash flow information | 2023 | 2022 | 2021 | ||||||
| $ |
$ |
$ |
|||||||
| Shares issued to reduce accounts payable | |||||||||
|
Bonus warrants issued on convertible debt |
|
||||||||
|
Equity portion of convertible debt |
|
||||||||
|
Recognition of derivative liability |
|
||||||||
|
Capitalized joint venture liability |
|
||||||||
| Shares issued to reduce promissory note | |||||||||
| Shares and warrants issued for water rights | |||||||||
| Shares issued on convertible debt and interest conversion | |||||||||
| Promissory note converted into shares | |||||||||
|
Accrued investment property through accounts payable |
|||||||||
| Accrued power project development costs through accounts payable | |||||||||
|
Cash interest paid |
|||||||||
|
Taxes paid |
|
Greenbriar Sustainable Living Inc. (formerly “Greenbriar Capital Corp.”) Notes to the Consolidated Financial Statements For the years ended December 31, 2023, 2022, and 2021 (amounts expressed in Canadian dollars, except where indicated) |
21 Subsequent events
- Subsequent to year end, the Company issued
- Subsequent to year end, the Company issued
[Certain portions of this exhibit have been redacted as they are both not material and are of the type of information that the Company treats as private or confidential. The Company agrees to furnish supplementally an unredacted copy of the exhibit to the SEC upon its request.]
AMENDMENT NO. 11
TO
OPTION AGREEMENT FOR
LEASE OF REAL ESTATE PROPERTY (FIRST AND SEPARATE)
BETWEEN
GREENBRIAR CAPITAL (US) LLC
AND
AG & FM FARMS, LLC
(Formerly DR. JOSE ARTURO ACOSTA AND HIS WIFE DENISA FRANCO MOLINI)
This Amendment No. 11 to the Option Agreement for Lease of Real Estate Property (First and Separate) (the "Amendment No. 11") is made effective as of January 1, 2024, (the "Amendment No. 11 Effective Date"), by and between AG & FM FARMS, LLC, a Limited Liability Company duly organized under the laws of the Commonwealth of Puerto Rico, (formerly Dr. JOSE ARTURO ACOSTA GREGORY AND HIS WIFE DENISA FRANCO MOLINI who assigned their rights, title, interests and obligations in the Option Agreement for Lease of Real Estate Property (First and Separate) to AG & FM Farms, LLC under an assignment agreement approved by all parties thereto (the "Former Owners")), with AG & FM Farms, LLC represented herein by its Resident Agent, DENISA HERCILIA FRANCO MOLINI, of legal age, widow and resident of Lajas, Puerto Rico, who represents to have been duly authorized to execute and deliver this Amendment No. 11 which authority, or ratification thereof, she shall establish whenever necessary (the "Owner"), and GREENBRIAR CAPITAL (US) LLC, a limited liability company organized in accordance with the laws of Delaware, USA, and a wholly owned subsidiary of GREENBRIAR CAPITAL CORP recently renamed as GREENBRIAR SUSTAINABLE LIVING INC. (collectively "GREENBIAR"), duly represented by the President of Greenbriar Sustainable Living Inc., MR. CLIFF M. WEBB (the "Tenant"), with reference to the following facts. Owner and Tenant are sometimes referred to herein individually as a "Party" and together as the "Parties."
RECITALS
A. Former Owners and Tenant entered into a certain Lease Option Agreement for Lease of Real Estate Property dated as of September 9, 2013, and as modified by Amendments 1 through 10 (the "Amendments") (collectively, including the Amendments, the "First and Separate Montalva Lease Option Agreement" or the "Agreement"), to lease certain real estate property consisting of a single parcel of property identified as CRIM Tax ID (Catastro) Number 428-000-004-01-000, and as shown on the Montalva Solar Farm Parcel Map (included here as Exhibit I) as Parcel No. 2 (the "Original Property"), and in accordance with Amendment No. 9 to the Agreement, including two additional parcels of property identified as CRIM Tax ID (Catastro) Number 406-000-003-07-000 and shown on the Montalva Solar Farm Parcel Map as Parcel No. 7 and the property identified as CRIM Tax ID (Catastro) Number 406-000-008-03-000 and shown on the Montalva Solar Farm Parcel Map as Parcel No. 8, with Parcels No. 7 and No. 8 subject to the conclusion of a successful negotiation of an extension agreement as discussed in Recitals D and E, (collectively the "Expansion Parcels") and including the Original Property collectively hereinafter the "Properties".
B. An Agreement to assign the Former Owners' rights, title, interests and obligations, as such rights, title, interests and obligations are set forth in a certain Lease Option Agreement for Lease of Real Estate Property (First and Separate) and Amendments thereto, to AG & FM FARMS, LLC (the "Assignee"), a newly formed Limited Liability Company duly organized under the laws of the Commonwealth of Puerto Rico was made and entered into effective as of September 15, 2021, by and between the Former Owners (collectively, the "Assignors") and Tenant.
C. In regard to the Original Property, the Owner has an irrevocable and exclusive option to purchase the Original Property in accordance with a land purchase option agreement dated as of September 9, 2013 between the Owner and the ESTATES OF JOSE B. RAMIREZ ACOSTA AND AURORA ELISA TIO NAZARIO COMPOSED AND REPRESENTED BY THEIR LEGAL HEIRS JOSE BRUNO RAMIREZ TIO, LAURA DEL ROSARIO RAMIREZ TIO, FERNANDO ENRIQUE RAMIREZ TIO AND ALBERTO EUGENIO RAMIREZ TIO ("Landowner No. 1"), and as further amended and restated on April 1, 2020, (collectively including all amendments, the "Parcel No. 2 Land Purchase Option Agreement"), and with amendments thereto, and further in accordance with Amendment No. 3 thereto has extended the Parcel No. 2 Land Purchase Option Agreement to December 31, 2023. A new agreement with Landowner No. 1 was executed effective February 20, 2024, extending the land purchase option to December 31, 2024, with an additional six-month extension option if more time is needed to arrange financing for the purchase.
D. Regarding the Expansion Parcels, Owner has an irrevocable and exclusive option to purchase the property identified as CRIM Tax ID (Catastro) Number 406-000-003-07-000, and shown on the Montalva Solar Farm Parcel Map as Parcel No. 7, in accordance with a land purchase option agreement dated as of June 1, 2020, by and between the Owner and ZORAIDA ESTHER RAMIREZ SOTO (the seller and landowner of Parcel No. 7) ("Landowner No. 2") (collectively including all amendments, the "Parcel No. 7 Land Purchase Option Agreement", together with a replacement agreement dated as of May 5, 2021, restating and extending the Parcel No. 7 Land Purchase Option Agreement to May 5. 2024. The Owner and Landowner No. 2 are in negotiations for an extension to May 5, 2025. This agreement has not yet been agreed and there is no guarantee that one will be agreed and consummated.
E. In addition regarding the Expansion Parcels, Owner has an additional irrevocable and exclusive option to purchase the property identified as CRIM Tax ID (Catastro) Number 406-000-008-03-000, and shown on the Montalva Solar Farm Parcel Map as Parcel No. 8, in accordance with a land purchase option agreement dated as of May 1, 2020, by and between the Owner and ILEANA RIVERA SOTO also known as ILEANA RIVERA SOTO, HECTOR MIGUEL SANCHEZ RIVERA, LUIS MANUEL GERARDO SANCHEZ RIVERA AND MARINES SANCHEZ RIVERA (the sellers and landowners of Parcel No. 8) ("Landowner No. 3") (collectively including all amendments, the "Parcel No. 8 Land Purchase Option Agreement") together with Amendment No. 1 thereto dated as of April 30, 2021, extending the Parcel No. 8 Land Purchase Option Agreement to May 1, 2022. As of the Amendment No. 11 Effective Date, an extension to this agreement has not been agreed and there is no guarantee that one will be agreed and consummated.
F. The Parcel No. 2 Land Purchase Option Agreement, the Parcel No. 7 Land Purchase Option Agreement and the Parcel No. 8 Land Purchase Option Agreement, together will all amendments thereto, shall be collectively referred to as the "Land Purchase Option Agreements".
G. Landowner No. 1, 2 and 3 shall be collectively referred to as the "Landowners"
H. In accordance with the First and Separate Lease Option Agreement, and Amendments thereto, Owner has agreed to provide Tenant with an irrevocable and exclusive option to lease all or part of the Properties to develop, construct and operate thereon a solar energy park known as the Montalva Solar Farm, consisting of, but not limited to, solar panels, inverters, transformers, racking equipment, substations, access roads, fencing, underground and overhead electrical utilities and collection systems, transmission and communication lines, metering, measurement devices, energy storage, batteries, power conditioning equipment and other equipment and facilities for the operation of a solar electrical generation and energy storage project (collectively the "Montalva Solar Farm") with the Tenant agreeing to timely pay and reimburse the Owner for all of Owner's costs, expenses and purchase option payments due and required to be paid by Owner to the Landowners under the Land Purchase Option Agreements (the "Lease Option Payments") with no additional payments due from Tenant, other than as may be due for late fees charged by Landowners for any late payments by Tenant, in accordance with the terms for such late fees as set forth in this Agreement.
I. Owner desire to grant, and Tenant desires to continue to accept, an irrevocable and exclusive option to lease the Properties together with an easement on, over, under and across the Properties for the purpose of locating, constructing and operating the Montalva Solar Farm.
J. In recognition of the delays caused by the outbreak of the coronavirus known as COVID-19 and the continuing delays being experienced with the Puerto Rico Electric Power Authority ("PREPA") delaying the authorization for the construction of new solar energy generating facilities in Puerto Rico, the lengthy and complex bankruptcy proceeding dealing with PREPA's debts, the reorganization of PREPA under PROMESA Title III, and the recovery from the damage of hurricane Maria and the COVID pandemic; the Parties herewith and herein desire to further extending the Option Term of the First and Separate Montalva Lease Option Agreement pursuant to the terms of this Amendment No. 11 to December 31, 2025.
K. Further to the terms of this Amendment No. 11, as of the Amendment No. 11 Effective Date, Owner and Tenant agree that there are no outstanding payments or debts owed by either Party to the other Party.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereby agree and amend the First and Separate Montalva Lease Option Agreement together with all prior amendments and assignments as follows:
1. Capitalized Terms and Dollar Amounts: Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the First and Separate Montalva Lease Option Agreement and any amendments thereto. All dollar amounts referenced in this Agreement are US dollars.
2. Amendment: The Parties hereby agree to amend the First and Separate Montalva Lease Option Agreement as set forth herein.
3. Option Payments: As of the Amendment No. 11 Effective Date, Tenant agrees to pay Owner, when due, the Lease Option Payments as set forth in Recital H, including reimbursement of any late fees charged by the Landowners under any of the Land Purchase Option Agreements caused solely by any late payment by Tenant to Owner of the Lease Option Payments when due, and Owner agrees to accept these payments as payment-in-full for the Lease Option Payments and further agrees to make timely payments to the Landowners under the Land Purchase Option Agreements following payments by Tenant.
4. Extension of the Option Term: In exchange for Tenant agreeing to make the Lease Option Payments as set forth in Article 3, including any reimbursement of any late fees assessed as set forth in Article 3, the Owner agrees to extend the First and Separate Montalva Lease Option Agreement Option Term and termination date to December 31, 2025 (the "Option Term"). Tenant recognizes that Owner may need to extend the term of some, or all, of the Land Purchase Option Agreements during the Option Term and Owner shall make all reasonable efforts to extend the Land Purchase Option Agreements in a timely manner. Owner shall keep Tenant informed as to the status of all the Land Purchase Option Agreements. Owner and Tenant shall work together as needed and Tenant recognizes that Owner may not be successful in extending some, or all, of the Land Purchase Option Agreements in which case Tenant acknowledges that the Owner would not be able to fulfill its obligations to lease some, or all, of the Properties to the Tenant.
5. Forgiveness of any Prior Amounts: Further, in exchange for Tenant agreeing to make the Lease Option Payments, including any reimbursement of any late fees assessed as set forth in Article 3, Owner agrees to accept these payments as payment-in-full for (i) any and all, if any, unpaid and outstanding Lease Option Payments due from Tenant to Owner as of the Amendment No. 11 Effective Date and (ii) for any and all, if any. accumulated and unpaid late fees due Owner; with no additional Lease Option Payments or late fees due from Tenant other than as agreed in this Amendment No. 11.
6. Good Standing: Subject to the terms and conditions of this Amendment No. 11, and Tenant making the payments as set forth in Article 3, the Parties agree that the First and Separate Montalva Lease Option Agreement including all amendments, riders and exhibits thereto are ratified and confirmed in each and every respect and are agreed, together with Amendment Nos. 1 through 10 and hereby, to be in good standing and shall remain in full force and effect in accordance with the provisions stated herein.
7. Termination Rights: If for any reason Tenant does not make the payments set forth in Article 3, Owner at its discretion and option may terminate the First and Separate Montalva Lease Option Agreement by giving thirty (30) days' written notice to Tenant of an event of default thereto. Such notice if given shall be provided to Tenant deposited in overnight mail or delivery service with signature delivery addressed to Greenbriar Sustainable Living Inc. to the attention of Jeff Ciachurski at 9 Landport, Newport Beach, California 92660 and shall "additionally" be emailed to Jeff Ciachurski at both [REDACTED] and westernwind@shaw.ca and to Cliff Webb at [REDACTED]. Tenant shall have thirty (30) business days from such notice to cure the default without penalty except for any late fees that may be assessed and due in accordance with Article 3.
8. Exercise of Option, Offset Amounts and Credits: If Tenant exercise its option to lease the Properties or any portion thereof under the First and Separate Montalva Lease Option Agreement, then any and all Lease Option Payments made in accordance with the First and Separate Montalva Lease Option Agreement and Amendments by Tenant which "qualify" for offset of the land purchase price under the Land Purchase Option Agreements, together with any and all qualifying offset payments made in accordance with this Amendment No. 11, shall be applied as an offset and reduction of the Annual Rent payments as such payments and offset provisions are set forth in the First and Separate Montalva Lease Option Agreement. Any payment of late fees under Article 3 shall not apply as offset and reduction of the Annual Rent. If subsequent to this Amendment, either Party's records indicate a discrepancy or errors in the record of Lease Option Payments made by Tenant which payments are applicable to offset, then the Parties shall work in good faith to adjust and correct said records.
9. Compliance with Obligations: As amended and agreed hereby under this Amendment No. 11, each Party has complied in all material respects with its obligations under the First and Separate Montalva Lease Option Agreement with the acknowledgement that certain payments and late fees due Owner from Tenant in prior periods were not, or possibly not, made and Owner agrees to accept the payments from Tenant as set forth in Article 3, and going forward, as payment-in-full for all prior amounts. There shall be no other obligation of payments due Owner by Tenant except as set forth in this Amendment No. 11 and Article 3.
10. References to Agreement: All references in the First and Separate Montalva Lease Option Agreement, amendments thereto and this Amendment No. 11 (collectively the "Agreement") shall be deemed to refer to the First and Separate Montalva Lease Option Agreement as amended in accordance with Amendment Nos. 1 through 10 and hereby.
11. Interpreted under the Laws of Puerto Rico: The Agreement will be interpreted in accordance with the laws of Puerto Rico and as governed by them.
12. Litigation: The Parties agree to submit themselves to the exclusive jurisdiction of the Courts of the Commonwealth of Puerto Rico in the event of any litigation related to the Agreement or this Amendment No. 11. In the event of such litigation, all legal costs, fees and expenses of both parties shall be paid by the losing party.
13. Formal Agreements: The Owner acknowledges that Tenant may be required by financial lenders or financial partners to execute more formal agreements and will cooperate with Tenant to promptly enter into more formal agreements in a timely manner as may be requested by Tenant. Any such new formal agreements shall contain all of the rights, obligations and financial terms of the Agreement, this Amendment No. 11 and Amendments 1 through 10 as applicable, unless agreed otherwise upon mutually agreement of the Parties.
14. Entire Understanding: This Amendment No. 11 taken together with the First and Separate Montalva Lease Option Agreement and Amendments No. 1 through 10 constitutes the entire understanding between the Parties with respect to the subject matter hereof, and no representations, warranties, inducements, promises or agreements, oral or otherwise, between the Parties relating to the subject matter contained herein not embodied in this Amendment No. 11 shall be of any force or effect.
15. Modifications: This Amendment No. 11 shall not be modified in any respect, except in a writing executed by both Parties.
16. Invalid Provisions: If any provision of this Amendment No. 11 is held to be invalid or unenforceable, such provisions will not affect in any respect the validity or enforceability of the remainder of this Amendment No. 11 or the First and Separate Montalva Lease Option Agreement together with Amendments Nos. 1 through 10. If practicable, the Parties shall substitute for any invalid provision, a valid provision that most closely approximates the economic effect and intent of the invalid provision.
17. Execution: This Amendment No. 11 may be executed in one or more counterparts, each of which when so executed shall be an original, but all of which together shall constitute one agreement. The Parties further agree that each page shall be appropriately initialed and dated by the signing party, although failure to initial and date each page, or date the signing of the Agreement, shall not invalid this Amendment. This Amendment shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signature of all the Parties hereto. Signatures may be exchanged by courier, overnight delivery, mail, fax or email (the "Facsimile Signature(s)"). Upon a request by a Party, original signatures including original initialed and dated pages shall be promptly forwarded by Priority US Mail or overnight delivery to addresses provided by each requesting Party. Each Party to this Amendment agrees that it will be bound by its own Facsimile Signature and that it accepts the Facsimile Signatures of the other Party to this Amendment No. 11.
IN WITNESS WHEREOF, Tenant and Owner have executed this Amendment No. 11 on the date set forth below their respective names and effective as of the date first written (the Amendment No. 11 Effective Date).
|
TENANT: |
OWNER: |
|
|
|
|
By: /s/ Cliff M. Webb GREENBRIAR SUSTAINABLE LIVING
Date: _____________________________________
|
By: /s/ Denise Hercilia Franco Molini DENISE HERCILIA FRANCO
Date: _____________________________________
|
EXHIBIT I
MONTALVA SOLAR FARM PARCEL MAP
[Certain portions of this exhibit have been redacted as they are both not material and are of the type of information that the Company treats as private or confidential. The Company agrees to furnish supplementally an unredacted copy of the exhibit to the SEC upon its request.]
AMENDMENT NO. 7
TO
OPTION AGREEMENT FOR
SECOND AND SEPARATE LEASE OF REAL ESTATE PROPERTY
BETWEEN
GREENBRIAR CAPITAL (US) LLC
AND
AG & FM FARMS, LLC
(Formerly DR. JOSE ARTURO ACOSTA AND HIS WIFE DENISA FRANCO MOLINI)
This Amendment No. 7 to the Second and Separate Option Agreement for Lease of Real Estate Property (the "Amendment No. 7") is made effective as of January 1, 2024, (the "Amendment No. 7 Effective Date"), by and between AG & FM FARMS, LLC, a Limited Liability Company duly organized under the laws of the Commonwealth of Puerto Rico, (formerly Dr. JOSE ARTURO ACOSTA GREGORY AND HIS WIFE DENISA FRANCO MOLINI who assigned their rights, title, interests and obligations in the Second and Separate Option Agreement for Lease of Real Estate Property to AG & FM Farms, LLC under an assignment agreement approved by all parties thereto (the "Former Owners")), with AG & FM Farms, LLC represented herein by its Resident Agent, DENISA HERCILIA FRANCO MOLINI, of legal age, widow and resident of Lajas, Puerto Rico, who represents to have been duly authorized to execute and deliver this Amendment No. 7 which authority, or ratification thereof, she shall establish whenever necessary (the "Owner"), and GREENBRIAR CAPITAL (US) LLC, a limited liability company organized in accordance with the laws of Delaware, USA, and a wholly owned subsidiary of GREENBRIAR CAPITAL CORP, recently renamed as GREENBRIAR SUSTAINABLE LIVING INC. (collectively "GREENBIAR"), duly represented by the President of Greenbriar Sustainable Living Inc., MR. CLIFF M. WEBB (the "Tenant"), with reference to the following facts. Owner and Tenant are sometimes referred to herein individually as a "Party" and together as the "Parties."
RECITALS
A. Former Owners and Tenant entered into a certain Second and Separate Lease Option Agreement for Lease of Real Estate Property dated as of November 22, 2013, and effective as of December 1, 2013, and as modified by Amendments 1 through 6 (the "Amendments") (collectively, including the Amendments, the "Second and Separate Montalva Lease Option Agreement" or the "Agreement"), to lease certain real estate property consisting of a two parcels of property identified as CRIM Tax ID (Catastro) Number 406-000-008-22-000 and shown on the Montalva Solar Farm Parcel Map ( included here as Exhibit I) as Parcel No. 3 and the property identified as CRIM Tax ID (Catastro) Number 406-000-008-23-000 and shown on the Montalva Solar Farm Parcel Map as Parcel No. 4, with Parcels No. 3 and No. 4 subject to the conclusion of a successful negotiation of an extension agreement as discussed in Recital C, (collectively hereinafter the "Properties").
B. An Agreement to assign the Former Owners' rights, title, interests and obligations, as such rights, title, interests and obligations are set forth in a certain Second and Separate Lease Option Agreement for Lease of Real Estate Property and Amendments thereto, to AG & FM FARMS, LLC (the "Assignee"), a newly formed Limited Liability Company duly organized under the laws of the Commonwealth of Puerto Rico was made and entered into effective as of September 15, 2021, by and between the Former Owners (collectively, the "Assignors") and Tenant.
C. In regard to the Properties, the Owner has an irrevocable and exclusive option to purchase the Properties in accordance with a land purchase option agreement dated as of November 22, 2013, and effective as of December 1, 2013, between the Owner and ALBERTO RAMIREZ TIO (the "Landowner"), and as further amended and restated on May 1, 2020, and further extended in accordance with Amendment No. 3 thereto to December 31, 2023 (collectively including all amendments, the "Land Purchase Option Agreement"). A current amendment to the Land Purchase Option Agreement has been drafted and provided to Landowner extending the land purchase option therein to December 31, 2024. This amendment has not yet been signed and negotiations are ongoing as of the Effective Date.
D. In accordance with the Second and Separate Lease Option Agreement, and Amendments thereto, Owner has agreed to provide Tenant with an irrevocable and exclusive option to lease all or part of the Properties to develop, construct and operate thereon a solar energy park known as the Montalva Solar Farm, consisting of, but not limited to, solar panels, inverters, transformers, racking equipment, substations, access roads, fencing, underground and overhead electrical utilities and collection systems, transmission and communication lines, metering, measurement devices, energy storage, batteries, power conditioning equipment and other equipment and facilities for the operation of a solar electrical generation and energy storage project (collectively the "Montalva Solar Farm") with the Tenant agreeing to timely pay and reimburse the Owner for all of Owner's costs, expenses and purchase option payments due and required to be paid by Owner to the Landowner under the Parcels No. 3 and 4 Land Purchase Option Agreement (the "Lease Option Payments") with no additional payments due from Tenant, other than as may be due for late fees charged by Landowner for any late payments by Tenant, in accordance with the terms for such late fees as set forth in this Agreement.
E. Owner desire to grant, and Tenant desires to continue to accept, an irrevocable and exclusive option to lease the Properties together with an easement on, over, under and across the Properties for the purpose of locating, constructing and operating the Montalva Solar Farm.
F. In recognition of the delays caused by the outbreak of the coronavirus known as COVID-19 and the continuing delays being experienced with the Puerto Rico Electric Power Authority ("PREPA") delaying the authorization for the construction of new solar energy generating facilities in Puerto Rico, the lengthy and complex bankruptcy proceeding dealing with PREPA's debts, the reorganization of PREPA under PROMESA Title III, and the recovery from the damage of hurricane Maria and the COVID pandemic; the Parties herewith and herein desire to further extending the Option Term of the Second and Separate Montalva Lease Option Agreement pursuant to the terms of this Amendment No. 7 to December 31, 2025.
G. Further to the terms of this Amendment No. 7, as of the Amendment No. 7 Effective Date, Owner and Tenant agree that there are no outstanding payments or debts owed by either Party to the other Party.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereby agree and amend the Second and Separate Montalva Lease Option Agreement together with all prior amendments and assignments as follows:
1. Capitalized Terms and Dollar Amounts: Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Second and Separate Montalva Lease Option Agreement and any amendments thereto. All dollar amounts referenced in this Agreement are US dollars.
2. Amendment: The Parties hereby agree to amend the Second and Separate Montalva Lease Option Agreement as set forth herein.
3. Option Payments: As of the Amendment No. 7 Effective Date, Tenant agrees to pay Owner, when due, the Lease Option Payments as set forth in Recital D, including reimbursement of any late fees charged by the Landowner under the Parcels No. 3 and 4 Land Purchase Option Agreement caused solely by any late payment by Tenant to Owner of the Lease Option Payments when due, and Owner agrees to accept these payments as payment-in-full for the Lease Option Payments and further agrees to make timely payments to the Landowner under the Parcels No. 3 and 4 Land Purchase Option Agreement following payments by Tenant.
4. Extension of the Option Term: In exchange for Tenant agreeing to make the Lease Option Payments as set forth in Article 3, including any reimbursement of any late fees assessed as set forth in Article 3, the Owner agrees to extend the Second and Separate Montalva Lease Option Agreement Option Term and termination date to December 31, 2025 (the "Option Term"). Tenant recognizes that Owner may need to extend the term of the Land Purchase Option Agreement during the Option Term and Owner shall make all reasonable efforts to extend the Land Purchase Option Agreement in a timely manner. Owner shall keep Tenant informed as to the status of the Land Purchase Option Agreement. Owner and Tenant shall work together as needed and Tenant recognizes that Owner may not be successful in extending the Land Purchase Option Agreement in which case Tenant acknowledges that the Owner would not be able to fulfill its obligations to lease some, or all, of the Properties to the Tenant.
5. Forgiveness of any Prior Amounts: Further, in exchange for Tenant agreeing to make the Lease Option Payments, including any reimbursement of any late fees assessed as set forth in Article 3, Owner agrees to accept these payments as payment-in-full for (i) any and all, if any, unpaid and outstanding Lease Option Payments due from Tenant to Owner as of the Amendment No. 7 Effective Date and (ii) for any and all, if any, accumulated and unpaid late fees due Owner; with no additional Lease Option Payments or late fees due from Tenant other than as agreed in this Amendment No. 7.
6. Good Standing: Subject to the terms and conditions of this Amendment No. 7, and Tenant making the payments as set forth in Article 3, the Parties agree that the Second and Separate Montalva Lease Option Agreement including all amendments, riders and exhibits thereto are ratified and confirmed in each and every respect and are agreed, together with Amendment Nos. 1 through 6 and hereby, to be in good standing and shall remain in full force and effect in accordance with the provisions stated herein.
7. Termination Rights: If for any reason Tenant does not make the payments set forth in Article 3, Owner at its discretion and option may terminate the Second and Separate Montalva Lease Option Agreement by giving thirty (30) days' written notice to Tenant of an event of default thereto. Such notice if given shall be provided to Tenant and Greenbriar deposited in overnight mail or delivery service with signature delivery addressed to Greenbriar to the attention of Jeff Ciachurski at 9 Landport, Newport Beach, California 92660 and shall "additionally" be emailed to Jeff Ciachurski at both [REDACTED] and westernwind@shaw.ca and to Cliff Webb at [REDACTED]. Tenant shall have thirty (30) business days from such notice to cure the default without penalty except for any late fees that may be assessed and due in accordance with Article 3.
8. Exercise of Option, Offset Amounts and Credits: If Tenant exercise its option to lease the Properties or any portion thereof under the Second and Separate Montalva Lease Option Agreement, then any and all Lease Option Payments made in accordance with the Second and Separate Montalva Lease Option Agreement and Amendments by Tenant which "qualify" for offset of the land purchase price at closing under the Land Purchase Option Agreement, together with any and all qualifying offset payments made in accordance with this Amendment No. 7, shall be applied as an offset and reduction of the Annual Rent payments as such payments and offset provisions are set forth in the Second and Separate Montalva Lease Option Agreement. Any payment of late fees under Article 3 shall not apply as offset and reduction of the Annual Rent. If subsequent to this Amendment, either Party's records indicate a discrepancy or errors in the record of Lease Option Payments made by Tenant which payments are applicable to offset, then the Parties shall work in good faith to adjust and correct said records.
9. Compliance with Obligations: As amended and agreed hereby under this Amendment No. 7, each Party has complied in all material respects with its obligations under the Second and Separate Montalva Lease Option Agreement with the acknowledgement that certain payments and late fees due Owner from Tenant in prior periods were not, or possibly not, made and Owner agrees to accept the payments from Tenant as set forth in Article 3, and going forward, as payment-in-full for all prior amounts. There shall be no other obligation of payments due Owner by Tenant except as set forth in this Amendment No. 7 and Article 3.
10. References to Agreement: All references in the Second and Separate Montalva Lease Option Agreement, amendments thereto and this Amendment No. 7 (collectively the "Agreement") shall be deemed to refer to the Second and Separate Montalva Lease Option Agreement as amended in accordance with Amendment Nos. 1 through 6 and hereby.
11. Interpreted under the Laws of Puerto Rico: The Agreement will be interpreted in accordance with the laws of Puerto Rico and as governed by them.
12. Litigation: The Parties agree to submit themselves to the exclusive jurisdiction of the Courts of the Commonwealth of Puerto Rico in the event of any litigation related to the Agreement or this Amendment No. 7. In the event of such litigation, all legal costs, fees and expenses of both parties shall be paid by the losing party.
13. Formal Agreements: The Owner acknowledges that Tenant may be required by financial lenders or financial partners to execute more formal agreements and will cooperate with Tenant to promptly enter into more formal agreements in a timely manner as may be requested by Tenant. Any such new formal agreements shall contain all of the rights, obligations and financial terms of the Agreement, this Amendment No. 7 and Amendments 1 through 6 as applicable, unless agreed otherwise upon mutually agreement of the Parties.
14. Entire Understanding: This Amendment No. 7 taken together with the Second and Separate Montalva Lease Option Agreement and Amendments No. 1 through 6 constitutes the entire understanding between the Parties with respect to the subject matter hereof, and no representations, warranties, inducements, promises or agreements, oral or otherwise, between the Parties relating to the subject matter contained herein not embodied in this Amendment No. 7 shall be of any force or effect.
15. Modifications: This Amendment No. 7 shall not be modified in any respect, except in a writing executed by both Parties.
16. Invalid Provisions: If any provision of this Amendment No. 7 is held to be invalid or unenforceable, such provisions will not affect in any respect the validity or enforceability of the remainder of this Amendment No. 7 or the Second and Separate Montalva Lease Option Agreement together with Amendments Nos. 1 through 6. If practicable, the Parties shall substitute for any invalid provision, a valid provision that most closely approximates the economic effect and intent of the invalid provision.
17. Execution: This Amendment No. 7 may be executed in one or more counterparts, each of which when so executed shall be an original, but all of which together shall constitute one agreement. The Parties further agree that each page shall be appropriately initialed and dated by the signing party, although failure to initial and date each page, or date the signing of the Agreement, shall not invalid this Amendment. This Amendment shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signature of all the Parties hereto. Signatures may be exchanged by courier, overnight delivery, mail, fax or email (the "Facsimile Signature(s)"). Upon a request by a Party, original signatures including original initialed and dated pages shall be promptly forwarded by Priority US Mail or overnight delivery to addresses provided by each requesting Party. Each Party to this Amendment agrees that it will be bound by its own Facsimile Signature and that it accepts the Facsimile Signatures of the other Party to this Amendment No. 7.
IN WITNESS WHEREOF, Tenant and Owner have executed this Amendment No. 7 on the date set forth below their respective names and effective as of the date first written (the Amendment No. 7 Effective Date).
| TENANT: |
OWNER: |
|||
| By: | /s/ Cliff M. Webb | By: | /s/ Denise Hercilia Franco Molini | |
| CLIFF M. WEBB, PRESIDENT GREENBRIAR SUSTAINABLE LIVING INC On Behalf of: GREENBRIAR CAPITAL (US) LLC |
DENISE HERCILIA FRANCO MOLINI for AG & FM FARMS, LLC |
|||
| Date: | Date: | |||
EXHIBIT I
MONTALVA SOLAR FARM PARCEL MAP
[Certain portions of this exhibit have been redacted as they are both not material and are of the type of information that the Company treats as private or confidential. The Company agrees to furnish supplementally an unredacted copy of the exhibit to the SEC upon its request.]
AMENDMENT NO. 7
TO
OPTION AGREEMENT FOR
THIRD AND SEPARATE LEASE OF REAL ESTATE PROPERTY
BETWEEN
GREENBRIAR CAPITAL (US) LLC
AND
AG & FM FARMS, LLC
(Formerly DR. JOSE ARTURO ACOSTA AND HIS WIFE DENISA FRANCO MOLINI)
This Amendment No. 7 to the Third and Separate Option Agreement for Lease of Real Estate Property (the "Amendment No. 7") is made effective as of January 1, 2024, (the "Amendment No. 7 Effective Date"), by and between AG & FM FARMS, LLC, a Limited Liability Company duly organized under the laws of the Commonwealth of Puerto Rico, (formerly Dr. JOSE ARTURO ACOSTA GREGORY AND HIS WIFE DENISA FRANCO MOLINI who assigned their rights, title, interests and obligations in the Third and Separate Option Agreement for Lease of Real Estate Property to AG & FM Farms, LLC under an assignment agreement approved by all parties thereto (the "Former Owners")), with AG & FM Farms, LLC represented herein by its Resident Agent, DENISA HERCILIA FRANCO MOLINI, of legal age, widow and resident of Lajas, Puerto Rico, who represents to have been duly authorized to execute and deliver this Amendment No. 7 which authority, or ratification thereof, she shall establish whenever necessary (the "Owner"), and GREENBRIAR CAPITAL (US) LLC, a limited liability company organized in accordance with the laws of Delaware, USA, and a wholly owned subsidiary of GREENBRIAR CAPITAL CORP, recently renamed as GREENBRIAR SUSTAINABLE LIVING INC. (collectively "GREENBIAR"), duly represented by the President of Greenbriar Sustainable Living Inc., MR. CLIFF M. WEBB (the "Tenant"), with reference to the following facts. Owner and Tenant are sometimes referred to herein individually as a "Party" and together as the "Parties."
RECITALS
A. Former Owners and Tenant entered into a certain Third and Separate Lease Option Agreement for Lease of Real Estate Property dated as of January 1, 2014, and as modified by Amendments 1 through 6 (the "Amendments") (collectively, including the Amendments, the "Third and Separate Montalva Lease Option Agreement" or the "Agreement"), to lease certain real estate property consisting of a two parcels of property identified as CRIM Tax ID (Catastro) Number 406-000-003-42-000 and shown on the Montalva Solar Farm Parcel Map ( included here as Exhibit I) as Parcel No. 1 and the property identified as CRIM Tax ID (Catastro) Number 406-000-003-35-000 and shown on the Montalva Solar Farm Parcel Map as Parcel No. 6, with Parcel No. 6 subject to the conclusion of a successful negotiation of an extension agreement as discussed in Recital D, (collectively hereinafter the "Properties").
B. An Agreement to assign the Former Owners' rights, title, interests and obligations, as such rights, title, interests and obligations are set forth in a certain Third and Separate Lease Option Agreement for Lease of Real Estate Property and Amendments thereto, to AG & FM FARMS, LLC (the "Assignee"), a newly formed Limited Liability Company duly organized under the laws of the Commonwealth of Puerto Rico was made and entered into effective as of September 15, 2021, by and between the Former Owners (collectively, the "Assignors") and Tenant.
C. In regard to the Properties, the Owner owns the property identified as CRIM Tax ID (Catastro) Number 406-000-003-42-000 and shown on the Montalva Solar Farm Parcel Map as Parcel No. 1.
D. In regard to the property identified as CRIM Tax ID (Catastro) Number 406-000-003-35-000 and shown on the Montalva Solar Farm Parcel Map as Parcel No. 6, Owner held an irrevocable and exclusive option to purchase the property in accordance with a land purchase option agreement dated and effective as of January 1, 2022, between the Owner and FERNANDO ENRIQUE RAMIREZ TIO (the "Landowner") (collectively including all amendments, the "Parcel No. 6 Land Purchase Option Agreement") valid until December 31, 2022. As of Amendment No. 7 Effective Date, although offered to the Landowner, an extension to this purchase option agreement has not been agreed and Tenant acknowledges that there is no guarantee that one will be agreed and consummated.
E. In accordance with the Third and Separate Lease Option Agreement, and Amendments thereto, Owner has agreed to provide Tenant with an irrevocable and exclusive option to lease all or part of the Properties to develop, construct and operate thereon a solar energy park known as the Montalva Solar Farm, consisting of, but not limited to, solar panels, inverters, transformers, racking equipment, substations, access roads, fencing, underground and overhead electrical utilities and collection systems, transmission and communication lines, metering, measurement devices, energy storage, batteries, power conditioning equipment and other equipment and facilities for the operation of a solar electrical generation and energy storage project (collectively the "Montalva Solar Farm") with the Tenant agreeing to timely pay Ten Thousand Dollars ($10,000) per year in equal installments of Three Thousand Dollars and Thirty Three Cents ($3,333.33) every four months commencing January 1, 2024, to Owner for Parcel No. 1 and to further reimburse the Owner for all of Owner's costs, expenses and purchase option payments due and required to be paid by Owner to the Landowner under the Parcel No. 6 Land Purchase Option Agreement, if successfully extended, (collectively, the "Lease Option Payments"), with no additional payments due from Tenant, other than as may be due for late fees charged by Landowner for any late payments by Tenant, in accordance with the terms for such late fees as set forth in this Agreement.
F. Owner desire to grant, and Tenant desires to continue to accept, an irrevocable and exclusive option to lease the Properties together with an easement on, over, under and across the Properties for the purpose of locating, constructing and operating the Montalva Solar Farm.
G. In recognition of the delays caused by the outbreak of the coronavirus known as COVID-19 and the continuing delays being experienced with the Puerto Rico Electric Power Authority ("PREPA") delaying the authorization for the construction of new solar energy generating facilities in Puerto Rico, the lengthy and complex bankruptcy proceeding dealing with PREPA's debts, the reorganization of PREPA under PROMESA Title III, and the recovery from the damage of hurricane Maria and the COVID pandemic; the Parties herewith and herein desire to further extending the Option Term of the Third and Separate Montalva Lease Option Agreement pursuant to the terms of this Amendment No. 7 to December 31, 2025.
H. Further to the terms of this Amendment No. 7, as of Amendment No. 7 Effective Date, Owner and Tenant agree that there are no outstanding payments or debts owed by either Party to the other Party.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereby agree and amend the Third and Separate Montalva Lease Option Agreement together with all prior amendments and assignments as follows:
1. Capitalized Terms and Dollar Amounts: Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Third and Separate Montalva Lease Option Agreement and any amendments thereto. All dollar amounts referenced in this Agreement are US dollars.
2. Amendment: The Parties hereby agree to amend the Third and Separate Montalva Lease Option Agreement as set forth herein.
3. Option Payments: As of the Amendment No. 7 Effective Date, Tenant agrees to pay Owner, when due, the Lease Option Payments as set forth in Recital E, including reimbursement of any late fees under Article 4 plus any late fees charged by the Landowner under the Parcel No. 6 Land Purchase Option Agreement caused solely by any late payment by Tenant to Owner of the Lease Option Payments when due, and Owner agrees to accept these payments as payment-in-full for the Lease Option Payments and further agrees to make timely payments to the Landowner under the Parcel No. 6 Land Purchase Option Agreement, if extended as discussed in Recital D, following such payments by Tenant for Parcel No. 6 as applicable.
4. Late Payments: For any payments due Owner for Parcel No. 1 under this Agreement, if such payment is not paid within fifteen (15) business days of the date any payment is due, then late fees shall be assessed at the rate of one percent (1%) per month on any portion thereof that such amount is more than fifteen (15) business days late or on the anniversary of such date each month thereafter for each payment or amounts outstanding as of that date and shall be due and payable at the time when said late payment amount is paid, or if not paid, shall be due and payable at the signing of the deed of sale thereunder with no credit applied against the Annual Rent payments for such payment of late fees in accordance with Article 9. Any late fees for Parcel No. 6 due Owner shall be as stated in Article 3.
5. Extension of the Option Term: In exchange for Tenant agreeing to make the Lease Option Payments as set forth in Article 3, including any reimbursement of any late fees assessed as set forth in Articles 3 or 4, the Owner agrees to extend the Third and Separate Montalva Lease Option Agreement Option Term and termination date to December 31, 2025 (the "Option Term"). Tenant recognizes that Owner may need to extend the term of the Parcel No. 6 Land Purchase Option Agreement during the Option Term and Owner shall make all reasonable efforts to extend the Parcel No. 6 Land Purchase Option Agreement in a timely manner. Owner shall keep Tenant informed as to the status of the Parcel No. 6 Land Purchase Option Agreement. Owner and Tenant shall work together as needed and Tenant recognizes that Owner may not be successful in extending the Parcel No. 6 Land Purchase Option Agreement in which case the Tenant acknowledges that the Owner would not be able to fulfill its obligations to lease the Parcel No. 6 property to Tenant.
6. Forgiveness of any Prior Amounts: Further, in exchange for Tenant agreeing to make the Lease Option Payments, including any reimbursement of any late fees assessed as set forth in Articles 3 or 4, Owner agrees to accept these payments as payment-in-full for (i) any and all, if any, unpaid and outstanding Lease Option Payments due from Tenant to Owner for the Properties as of the Amendment No. 7 Effective Date and (ii) for any and all, if any, accumulated and unpaid late fees due Owner; with no additional Lease Option Payments or late fees due from Tenant other than as agreed in this Amendment No. 7.
7. Good Standing: Subject to the terms and conditions of this Amendment No. 7, and Tenant making the payments as set forth in Articles 3 and 4, the Parties agree that the Third and Separate Montalva Lease Option Agreement including all amendments, riders and exhibits thereto are ratified and confirmed in each and every respect and are agreed, together with Amendment Nos. 1 through 6 and hereby, to be in good standing and shall remain in full force and effect in accordance with the provisions stated herein.
8. Termination Rights: If for any reason Tenant does not make the payments set forth in Articles 3 and 4, Owner at its discretion and option may terminate the Third and Separate Montalva Lease Option Agreement by giving thirty (30) days' written notice to Tenant of an event of default thereto. Such notice if given shall be provided to Tenant and Greenbriar deposited in overnight mail or delivery service with signature delivery addressed to Greenbriar to the attention of Jeff Ciachurski at 9 Landport, Newport Beach, California 92660 and shall "additionally" be emailed to Jeff Ciachurski at both [REDACTED] and westernwind@shaw.ca and to Cliff Webb at [REDACTED]. Tenant shall have thirty (30) business days from such notice to cure the default without penalty except for any late fees that may be assessed and due in accordance with Articles 3 and 4.
9. Exercise of Option, Offset Amounts and Credits: If Tenant exercise its option to lease the Properties or any portion thereof under the Third and Separate Montalva Lease Option Agreement, then any and all Lease Option Payments made under this Amendment No. 7 for Parcel No. 1, and any purchase option payments made for Parcel No. 6 which "qualify" for offset of the Parcel No. 6 land purchase price, shall be applied as an offset and reduction of the Annual Rent payments as such payments and offset provisions are set forth in the Third and Separate Montalva Lease Option Agreement. Any payment of late fees under Articles 3 or 4, shall not apply as offset and reduction of the Annual Rent. If subsequent to this Amendment, either Party's records indicate a discrepancy or errors in the record of Lease Option Payments made by Tenant which payments are applicable to offset, then the Parties shall work in good faith to adjust and correct said records.
10. Compliance with Obligations: As amended and agreed hereby under this Amendment No. 7, each Party has complied in all material respects with its obligations under the Third and Separate Montalva Lease Option Agreement with the acknowledgement that certain payments and late fees due Owner from Tenant in prior periods were not, or possibly not, made and Owner agrees to accept the payments from Tenant as set forth in Articles 3 and 4, and going forward, as payment-in-full for all prior amounts. There shall be no other obligation of payments due Owner by Tenant except as set forth in this Amendment No. 7 and Articles 3 and 4.
11. References to Agreement: All references in the Third and Separate Montalva Lease Option Agreement, amendments thereto and this Amendment No. 7 (collectively the "Agreement") shall be deemed to refer to the Third and Separate Montalva Lease Option Agreement as amended in accordance with Amendment Nos. 1 through 6 and hereby.
12. Interpreted under the Laws of Puerto Rico: The Agreement will be interpreted in accordance with the laws of Puerto Rico and as governed by them.
13. Litigation: The Parties agree to submit themselves to the exclusive jurisdiction of the Courts of the Commonwealth of Puerto Rico in the event of any litigation related to the Agreement or this Amendment No. 7. In the event of such litigation, all legal costs, fees and expenses of both parties shall be paid by the losing party.
14. Formal Agreements: The Owner acknowledges that Tenant may be required by financial lenders or financial partners to execute more formal agreements and will cooperate with Tenant to promptly enter into more formal agreements in a timely manner as may be requested by Tenant. Any such new formal agreements shall contain all of the rights, obligations and financial terms of the Agreement, this Amendment No. 7 and Amendments 1 through 6 as applicable, unless agreed otherwise upon mutually agreement of the Parties.
15. Entire Understanding: This Amendment No. 7 taken together with the Third and Separate Montalva Lease Option Agreement and Amendments No. 1 through 6 constitutes the entire understanding between the Parties with respect to the subject matter hereof, and no representations, warranties, inducements, promises or agreements, oral or otherwise, between the Parties relating to the subject matter contained herein not embodied in this Amendment No. 7 shall be of any force or effect.
16. Modifications: This Amendment No. 7 shall not be modified in any respect, except in a writing executed by both Parties.
17. Invalid Provisions: If any provision of this Amendment No. 7 is held to be invalid or unenforceable, such provisions will not affect in any respect the validity or enforceability of the remainder of this Amendment No. 7 or the Third and Separate Montalva Lease Option Agreement together with Amendments Nos. 1 through 6. If practicable, the Parties shall substitute for any invalid provision, a valid provision that most closely approximates the economic effect and intent of the invalid provision.
18. Execution: This Amendment No. 7 may be executed in one or more counterparts, each of which when so executed shall be an original, but all of which together shall constitute one agreement. The Parties further agree that each page shall be appropriately initialed and dated by the signing party, although failure to initial and date each page, or date the signing of the Agreement, shall not invalid this Amendment. This Amendment shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signature of all the Parties hereto. Signatures may be exchanged by courier, overnight delivery, mail, fax or email (the "Facsimile Signature(s)"). Upon a request by a Party, original signatures including original initialed and dated pages shall be promptly forwarded by Priority US Mail or overnight delivery to addresses provided by each requesting Party. Each Party to this Amendment agrees that it will be bound by its own Facsimile Signature and that it accepts the Facsimile Signatures of the other Party to this Amendment No. 7.
IN WITNESS WHEREOF, Tenant and Owner have executed this Amendment No. 7 on the date set forth below their respective names and effective as of the date first written (the Amendment No. 7 Effective Date).
|
TENANT: |
OWNER: |
|
|
|
|
By: /s/ Cliff M. Webb GREENBRIAR SUSTAINABLE LIVING
Date: _____________________________________
|
By: /s/ Denise Hercilia Franco Molini DENISE HERCILIA FRANCO MOLINI
Date: _____________________________________
|
EXHIBIT I
MONTALVA SOLAR FARM PARCEL MAP
[Certain portions of this exhibit have been redacted as they are both not material and are of the type of information that the Company treats as private or confidential. The Company agrees to furnish supplementally an unredacted copy of the exhibit to the SEC upon its request.]
AMENDMENT NO. 7 TO
OPTION AGREEMENT FOR
FOURTH AND SEPARATE LEASE OF REAL ESTATE PROPERTY
BETWEEN
GREENBRIAR CAPITAL (US) LLC
AND
AG & FM FARMS, LLC
(Formerly DR. JOSE ARTURO ACOSTA AND HIS WIFE DENISA FRANCO MOLINI)
This Amendment No. 7 to the Fourth and Separate Option Agreement for Lease of Real Estate Property (the "Amendment No. 7") is made effective as of January 1, 2024, (the "Amendment No. 7 Effective Date"), by and between AG & FM FARMS, LLC, a Limited Liability Company duly organized under the laws of the Commonwealth of Puerto Rico, (formerly Dr. JOSE ARTURO ACOSTA GREGORY AND HIS WIFE DENISA FRANCO MOLINI who assigned their rights, title, interests and obligations in the Fourth and Separate Option Agreement for Lease of Real Estate Property to AG & FM Farms, LLC under an assignment agreement approved by all parties thereto (the "Former Owners")), with AG & FM Farms, LLC represented herein by its Resident Agent, DENISA HERCILIA FRANCO MOLINI, of legal age, widow and resident of Lajas, Puerto Rico, who represents to have been duly authorized to execute and deliver this Amendment No. 7 which authority, or ratification thereof, she shall establish whenever necessary (the "Owner"), and GREENBRIAR CAPITAL (US) LLC, a limited liability company organized in accordance with the laws of Delaware, USA, and a wholly owned subsidiary of GREENBRIAR CAPITAL CORP, recently renamed as GREENBRIAR SUSTAINABLE LIVING INC. (collectively "GREENBIAR"), duly represented by the President of Greenbriar Sustainable Living Inc., MR. CLIFF M. WEBB (the "Tenant"), with reference to the following facts. Owner and Tenant are sometimes referred to herein individually as a "Party" and together as the "Parties."
RECITALS
A. Former Owners and Tenant entered into a certain Fourth and Separate Lease Option Agreement for Lease of Real Estate Property dated as of January 1, 2014, and as modified by Amendments 1 through 6 (the "Amendments") (collectively, including all Amendments, the "Fourth and Separate Montalva Lease Option Agreement" or the "Agreement"), to lease certain real estate property consisting of single parcel of property identified as CRIM Tax ID (Catastro) Number 406-000-003- 05-000, and as shown on the Montalva Solar Farm Parcel Map ( included here as Exhibit I) as Parcel No. 5 (the "Property").
B. An Agreement to assign the Former Owners' rights, title, interests and obligations, as such rights, title, interests and obligations are set forth in a certain Fourth and Separate Lease Option Agreement for Lease of Real Estate Property and Amendments thereto, to AG & FM FARMS, LLC (the "Assignee"), a newly formed Limited Liability Company duly organized under the laws of the Commonwealth of Puerto Rico was made and entered into effective as of September 15, 2021, by and between the Former Owners (collectively, the "Assignors") and Tenant.
C. In regard to the Property, the Owner has an irrevocable and exclusive option to purchase the Property in accordance with a land purchase option agreement dated as of December 13, 2013, and effective as of January 1, 2014, between the Owner and LAURA DEL ROSARIO RAMIREZ TIO (the "Landowner"), and as further extended in accordance with Amendment No. 4 thereto to December 31, 2024 (collectively, including all amendments, the "Land Purchase Option Agreement").
D. In accordance with the Fourth and Separate Lease Option Agreement, and Amendments thereto, Owner has agreed to provide Tenant with an irrevocable and exclusive option to lease all or part of the Property to develop, construct and operate thereon a solar energy park known as the Montalva Solar Farm, consisting of, but not limited to, solar panels, inverters, transformers, racking equipment, substations, access roads, fencing, underground and overhead electrical utilities and collection systems, transmission and communication lines, metering, measurement devices, energy storage, batteries, power conditioning equipment and other equipment and facilities for the operation of a solar electrical generation and energy storage project (collectively the "Montalva Solar Farm") with the Tenant agreeing to timely pay and reimburse the Owner for all of Owner's costs, expenses and purchase option payments due and required to be paid by Owner to the Landowner under the Land Purchase Option Agreement (the "Lease Option Payments") with no additional payments due from Tenant, other than as may be due for late fees charged by Landowner for any late payments by Tenant, in accordance with the terms for such late fees as set forth in this Agreement.
E. Owner desire to grant, and Tenant desires to continue to accept, an irrevocable and exclusive option to lease the Property together with an easement on, over, under and across the Property for the purpose of locating, constructing and operating the Montalva Solar Farm.
F. In recognition of the delays caused by the outbreak of the coronavirus known as COVID- 19 and the continuing delays being experienced with the Puerto Rico Electric Power Authority ("PREPA") delaying the authorization for the construction of new solar energy generating facilities in Puerto Rico, the lengthy and complex bankruptcy proceeding dealing with PREPA's debts, the reorganization of PREPA under PROMESA Title III, and the recovery from the damage of hurricane Maria and the COVID pandemic; the Parties herewith and herein desire to further extending the Option Term of the Fourth and Separate Montalva Lease Option Agreement pursuant to the terms of this Amendment No. 7 to December 31, 2025.
G. Further to the terms of this Amendment No. 7, as of Amendment No. 7 Effective Date, Owner and Tenant agree that there are no outstanding payments or debts owed by either Party to the other Party.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereby agree and amend the Fourth and Separate Montalva Lease Option Agreement together with all prior amendments and assignments as follows:
1. Capitalized Terms and Dollar Amounts: Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Fourth and Separate Montalva Lease Option Agreement and any amendments thereto. All dollar amounts referenced in this Agreement are US dollars.
2. Amendment: The Parties hereby agree to amend the Fourth and Separate Montalva Lease Option Agreement as set forth herein.
3. Option Payments: As of the Amendment No. 7 Effective Date, Tenant agrees to pay Owner, when due, the Lease Option Payments as set forth in Recital D, including reimbursement of any late fees charged by the Landowner under the Land Purchase Option Agreement caused solely by any late payment by Tenant to Owner of the Lease Option Payments when due, and Owner agrees to accept these payments as payment-in- full for the Lease Option Payments and further agrees to make timely payments to the Landowner under the Land Purchase Option Agreement following payments by Tenant.
4. Extension of the Option Term: In exchange for Tenant agreeing to make the Lease Option Payments as set forth in Article 3, including any reimbursement of any late fees assessed as set forth in Article 3, the Owner agrees to extend the Fourth and Separate Montalva Lease Option Agreement Option Term and termination date to December 31, 2025 (the "Option Term"). Tenant recognizes that Owner may need to extend the term of the Land Purchase Option Agreement during the Option Term and Owner shall make all reasonable efforts to extend the Land Purchase Option Agreement in a timely manner. Owner shall keep Tenant informed as to the status of the Land Purchase Option Agreement. Owner and Tenant shall work together as needed and Tenant acknowledges that Owner may not be successful in extending the Land Purchase Option Agreement in which case Tenant acknowledges Owner would not be able to fulfill its obligations to lease some, or all, of the Property to the Tenant.
5. Forgiveness of any Prior Amounts: Further, in exchange for Tenant agreeing to make the Lease Option Payments, including any reimbursement of any late fees assessed as set forth in Article 3, Owner agrees to accept these payments as payment-in-full for (i) any and all, if any, unpaid and outstanding Lease Option Payments for the Property due from Tenant to Owner as of the Amendment No. 7 Effective Date and (ii) for any and all, if any, accumulated and unpaid late fees due Owner; with no additional Lease Option Payments or late fees due from Tenant other than as agreed in this Amendment No. 7.
6. Good Standing: Subject to the terms and conditions of this Amendment No. 7, and Tenant making the payments as set forth in Article 3, the Parties agree that the Fourth and Separate Montalva Lease Option Agreement including all amendments, riders and exhibits thereto are ratified and confirmed in each and every respect and are agreed, together with Amendment Nos. 1 through 6 and hereby, to be in good standing and shall remain in full force and effect in accordance with the provisions stated herein as applicable.
7. Termination Rights: If for any reason Tenant does not make the payments set forth in Article 3, Owner at its discretion and option may terminate the Fourth and Separate Montalva Lease Option Agreement by giving thirty (30) days' written notice to Tenant of an event of default thereto. Such notice if given shall be provided to Tenant and Greenbriar deposited in overnight mail or delivery service with signature delivery addressed to Greenbriar to the attention of Jeff Ciachurski at 9 Landport, Newport Beach, California 92660 and shall "additionally" be emailed to Jeff Ciachurski at both [REDACTED] and westernwind@shaw.ca and to Cliff Webb at [REDACTED]. Tenant shall have thirty (30) business days from such notice to cure the default without penalty except for any late fees that may be assessed and due in accordance with Article 3.
8. Exercise of Option, Offset Amounts and Credits: If Tenant exercise its option to lease the Property or any portion thereof under the Fourth and Separate Montalva Lease Option Agreement, then any and all Lease Option Payments made in accordance with the Fourth and Separate Montalva Lease Option Agreement and Amendments by Tenant, together with any and all payments made in accordance with this Amendment No. 7, which "qualify" for offset of the land purchase price at closing under the Land Purchase Option Agreement, shall be applied as an offset and reduction of the Annual Rent payments as such payments and offset provisions are set forth in the Fourth and Separate Montalva Lease Option Agreement. Any payment of late fees under Article 3 shall not apply as offset and reduction of the Annual Rent. If subsequent to this Amendment, either Party's records indicate a discrepancy or errors in the record of Lease Option Payments made by Tenant which payments are applicable to offset, then the Parties shall work in good faith to adjust and correct said records.
9. Compliance with Obligations: As amended and agreed hereby under this Amendment No. 7, each Party has complied in all material respects with its obligations under the Fourth and Separate Montalva Lease Option Agreement with the acknowledgement that certain payments and late fees due Owner from Tenant in prior periods were not, or possibly not, made and Owner agrees to accept the payments from Tenant as set forth in Article 3, and going forward, as payment-in-full for all prior amounts. There shall be no other obligation of payments due Owner by Tenant except as set forth in this Amendment No. 7 and Article 3.
10. References to Agreement: All references in the Fourth and Separate Montalva Lease Option Agreement, amendments thereto and this Amendment No. 7 (collectively the "Agreement") shall be deemed to refer to the Fourth and Separate Montalva Lease Option Agreement as amended in accordance with Amendment Nos. 1 through 6 and hereby.
11. Interpreted under the Laws of Puerto Rico: The Agreement will be interpreted in accordance with the laws of Puerto Rico and as governed by them.
12. Litigation: The Parties agree to submit themselves to the exclusive jurisdiction of the Courts of the Commonwealth of Puerto Rico in the event of any litigation related to the Agreement or this Amendment No. 7. In the event of such litigation, all legal costs, fees and expenses of both parties shall be paid by the losing party.
13. Formal Agreements: The Owner acknowledges that Tenant may be required by financial lenders or financial partners to execute more formal agreements and will cooperate with Tenant to promptly enter into more formal agreements in a timely manner as may be requested by Tenant. Any such new formal agreements shall contain all of the rights, obligations and financial terms of the Agreement, this Amendment No. 7 and Amendments 1 through 6 as appliable, unless agreed otherwise upon mutually agreement of the Parties.
14. Entire Understanding: This Amendment No. 7 taken together with the Fourth and Separate Montalva Lease Option Agreement and Amendments No. 1 through 6 constitutes the entire understanding between the Parties with respect to the subject matter hereof, and no representations, warranties, inducements, promises or agreements, oral or otherwise, between the Parties relating to the subject matter contained herein not embodied in this Amendment No. 7 shall be of any force or effect.
15. Modifications: This Amendment No. 7 shall not be modified in any respect, except in a writing executed by both Parties.
16. Invalid Provisions: If any provision of this Amendment No. 7 is held to be invalid or unenforceable, such provisions will not affect in any respect the validity or enforceability of the remainder of this Amendment No. 7 or the Fourth and Separate Montalva Lease Option Agreement together with Amendments Nos. 1 through 6. If practicable, the Parties shall substitute for any invalid provision, a valid provision that most closely approximates the economic effect and intent of the invalid provision.
17. Execution: This Amendment No. 7 may be executed in one or more counterparts, each of which when so executed shall be an original, but all of which together shall constitute one agreement. The Parties further agree that each page shall be appropriately initialed and dated by the signing party, although failure to initial and date each page, or date the signing of the Agreement, shall not invalid this Amendment. This Amendment shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signature of all the Parties hereto. Signatures may be exchanged by courier, overnight delivery, mail, fax or email (the "Facsimile Signature(s)"). Upon a request by a Party, original signatures including original initialed and dated pages shall be promptly forwarded by Priority US Mail or overnight delivery to addresses provided by each requesting Party. Each Party to this Amendment agrees that it will be bound by its own Facsimile Signature and that it accepts the Facsimile Signatures of the other Party to this Amendment No. 7.
IN WITNESS WHEREOF, Tenant and Owner have executed this Amendment No. 7 on the date set forth below their respective names and effective as of the date first written (the Amendment No. 7 Effective Date).
| TENANT: | OWNER: | |||
| By: | /s/ Cliff M. Webb | By: | /s/ Denise Hercilia Franco Molini | |
| CLIFF M. WEBB, PRESIDENT GREENBRIAR SUSTAINABLE LIVING INC On Behalf of: GREENBRIAR CAPITAL (US) LLC |
DENISE HERCILIA FRANCO MOLINI for AG & FM FARMS, LLC |
|||
| Date: | Date: | |||
EXHIBIT I
MONTALVA SOLAR FARM PARCEL MAP
GREENBRIAR CAPITAL (U.S.) LLC
AND
CAPTIVA VERDE LAND CORP.
JOINT VENTURE SETTLEMENT AGREEMENT
June 22, 2023
- 2 -
Settlement Agreement
THIS AGREEMENT is dated effective June 22, 2023.
BETWEEN:
GREENBRIAR CAPITAL (U.S.) LLC, a Delaware limited liability company
(the "Company")
AND:
CAPTIVA VERDE LAND CORP., a corporation duly incorporated under the laws of the Province of British Columbia
WHEREAS:
A. On October 6, 2018, the Company entered into an agreement to sell a 50% undivided interest in the Sage Ranch project to Captiva, which represents a non-arm's length transaction. The Company received 10,687,500 common shares of the Captiva which had a fair value of $1,068,750 and $112,500 in cash for total consideration of $1,181,250 ("Sale Agreement").
On August 10, 2020, the Company entered into an option and joint venture agreement (the "Option and Joint Venture Agreement") with Captiva amending the terms of the original agreement.
Pursuant to the terms of the Option and Joint Venture Agreement, Captiva's 50% interest in the Sage Ranch Project was converted into an option to earn (the "Option") a 50% net profits interest in the Sage Ranch project by:
1. Captiva paying the Company a cash payment of $112,500 (the "Cash Payment") (Captiva satisfied this payment in 2018 under the terms of the Sale Agreement);
2. Captiva issuing the Company common shares (the "Share Payment") (Captiva satisfied this payment in 2018 through the issuance of 10,687,500 common shares under the terms of the Sale Agreement); and
3. Captiva funding the applicable permitting and development costs for the Sage Ranch Project (Captiva is in default on such funding obligations as no funding has been provided since November 2021)
NOW THEREFORE THIS AGREEMENT WITNESSES in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
- 3 -
1. SETTLEMENT OF OUTSTANIDNG OPTION
1.1 Greenbriar and Captiva have agreed to sever the Option and Joint Venture Agreement in exchange for Greenbriar paying Captiva 10% of Sage Ranch's net profit per year until the $5,591,588 that Captiva has spent on the property is repaid. Subsequent to the amount being repaid, Captiva will no longer have any further interest in the Sage Ranch project.
2. NOTICES
2.1 Each notice, demand or other communication required or permitted to be given under this Agreement will be in writing and will be sent by prepaid registered mail deposited in a post office in Canada addressed to the party entitled to receive the same, or delivered to such party, at the address for such party specified or by facsimile, in each case addressed as applicable as follows:
(a) If to the Optionee at:
Captiva Verde Land Corp.
Attn: Anthony Balic, CFO
1201-1166 Alberni Street
Vancouver, BC Canada
V6E 3Z3 604-312-2425
(b) If to the Optionor at:
Greenbriar Capital (U.S.) LLC
Attn: Jeffrey Ciachurski, CEO
9 Landport Newport Beach, CA
92660 Tel: 949-903-5906
or to such other address as is specified by the particular party by notice to the others.
2.2 The date of receipt of such notice, demand or other communication will be the date of delivery thereof if delivered or the date of sending it by facsimile, or, if given by registered mail as aforesaid, will be deemed conclusively to be the third day after the same will have been so mailed except in the case of interruption of postal services for any reason whatever, in which case the date of receipt will be the date on which the notice, demand or other communication is actually received by the addressee.
- 4 -
2.3 Either party may at any time and from time to time notify the other party in writing of a change of address and the new address to which notice will be given to it thereafter until further change.
3. GENERAL
3.1 This Agreement will supersede and replace any other agreement or arrangement, whether oral or written, heretofore existing between the parties in respect of the subject matter of this Agreement.
3.2 No consent or waiver expressed or implied by either party in respect of any breach or default by the other in the performance of such other of its obligations hereunder will be deemed or construed to be a consent to or a waiver of any other breach or default.
3.3 The parties will promptly execute or cause to be executed all documents, deeds, conveyances and other instruments of further assurance which may be reasonably necessary or advisable to carry out fully the intent of this Agreement or to record wherever appropriate the respective interests from time to time of the parties in the Property.
3.4 This Agreement and any other writing delivered pursuant hereto may be executed in any number of counterparts with the same effect as if all parties to this Agreement or such other writing had signed the same document and all counterparts will be construed together and will constitute one and the same instrument.
3.5 This Agreement will be governed and construed according to the laws of the Province of British Columbia and the laws of Canada applicable therein and the parties hereby attorn to the jurisdiction of the Courts of British Columbia in respect of all matters arising hereunder.
3.6 This Agreement will enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
- 5 -
Signatures:
IN WITNESS WHEREOF Greenbriar and Captiva have caused this Agreement to be executed by their duly authorized officers.
CAPTIVA VERDE LAND CORP.
Per: /s/ Anthony Balic
Anthony Balic
CFO
GREENBRIAR CAPITAL (U.S.) LLC
Per: /s/ Jeff Ciachurski
Jeff Ciachurski
CEO
GREENBRIAR CAPITAL (U.S.) LLC
AND
CAPTIVA VERDE LAND CORP.
|
|
August 21, 2023
- 2 -
Settlement Agreement
THIS AGREEMENT is dated effective August 21, 2023.
BETWEEN:
GREENBRIAR CAPITAL (U.S.) LLC, a Delaware limited liability company
(the "Company")
AND:
CAPTIVA VERDE LAND CORP., a corporation duly incorporated under the laws of the Province of British Columbia
WHEREAS:
A. On October 6, 2018, the Company entered into an agreement to sell a 50% undivided interest in the Sage Ranch project to Captiva, which represents a non-arm's length transaction. The Company received 10,687,500 common shares of the Captiva which had a fair value of $1,068,750 and $112,500 in cash for total consideration of $1,181,250 ("Sale Agreement").
On August 10, 2020, the Company entered into an option and joint venture agreement (the "Option and Joint Venture Agreement") with Captiva amending the terms of the original agreement.
Pursuant to the terms of the Option and Joint Venture Agreement, Captiva's 50% interest in the Sage Ranch Project was converted into an option to earn (the "Option") a 50% net profits interest in the Sage Ranch project by:
1. Captiva paying the Company a cash payment of $112,500 (the "Cash Payment") (Captiva satisfied this payment in 2018 under the terms of the Sale Agreement);
2. Captiva issuing the Company common shares (the "Share Payment") (Captiva satisfied this payment in 2018 through the issuance of 10,687,500 common shares under the terms of the Sale Agreement); and
3. Captiva funding the applicable permitting and development costs for the Sage Ranch Project (Captiva is in default on such funding obligations as no funding has been provided since November 2021)
B. On June 22, 2023, the Company enter into an agreement with Captiva whereby the Company will pay Captiva 10% of Sage Ranch's net profit per year until the $5,591,588 that Captiva has spent on the property is repaid. Subsequent to the amount being repaid, Captiva will no longer have any further interest in the Sage Ranch project.
NOW THEREFORE THIS AGREEMENT WITNESSES in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
- 3 -
1. AMENDMENT TO SETTLEMENT PAYMENT
1.1 The Company's wish to enter into an amended agreement whereby Greenbriar will pay Captiva the outstanding $5,591,588 in 48 equal monthly installments of $116,491.42 starting on July 1, 2024, with the last payment on June 1, 2028. Subsequent to the amount being repaid, Captiva will no longer have any further interest in the Sage Ranch project.
2. NOTICES
2.1 Each notice, demand or other communication required or permitted to be given under this Agreement will be in writing and will be sent by prepaid registered mail deposited in a post office in Canada addressed to the party entitled to receive the same, or delivered to such party, at the address for such party specified or by facsimile, in each case addressed as applicable as follows:
(a) If to the Optionee at:
Captiva Verde Land Corp.
Attn: Anthony Balic, CFO
1201-1166 Alberni Street
Vancouver, BC Canada
V6E 3Z3 604-312-2425
(b) If to the Optionor at:
Greenbriar Capital (U.S.) LLC
Attn: Jeffrey Ciachurski, CEO
9 Landport Newport Beach, CA
92660 Tel: 949-903-5906
or to such other address as is specified by the particular party by notice to the others.
2.2 The date of receipt of such notice, demand or other communication will be the date of delivery thereof if delivered or the date of sending it by facsimile, or, if given by registered mail as aforesaid, will be deemed conclusively to be the third day after the same will have been so mailed except in the case of interruption of postal services for any reason whatever, in which case the date of receipt will be the date on which the notice, demand or other communication is actually received by the addressee.
- 4 -
2.3 Either party may at any time and from time to time notify the other party in writing of a change of address and the new address to which notice will be given to it thereafter until further change.
3. GENERAL
3.1 This Agreement will supersede and replace any other agreement or arrangement, whether oral or written, heretofore existing between the parties in respect of the subject matter of this Agreement.
3.2 No consent or waiver expressed or implied by either party in respect of any breach or default by the other in the performance of such other of its obligations hereunder will be deemed or construed to be a consent to or a waiver of any other breach or default.
3.3 The parties will promptly execute or cause to be executed all documents, deeds, conveyances and other instruments of further assurance which may be reasonably necessary or advisable to carry out fully the intent of this Agreement or to record wherever appropriate the respective interests from time to time of the parties in the Property.
3.4 This Agreement and any other writing delivered pursuant hereto may be executed in any number of counterparts with the same effect as if all parties to this Agreement or such other writing had signed the same document and all counterparts will be construed together and will constitute one and the same instrument.
3.5 This Agreement will be governed and construed according to the laws of the Province of British Columbia and the laws of Canada applicable therein and the parties hereby attorn to the jurisdiction of the Courts of British Columbia in respect of all matters arising hereunder.
3.6 This Agreement will enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
- 5 -
Signatures:
IN WITNESS WHEREOF Greenbriar and Captiva have caused this Agreement to be executed by their duly authorized officers.
CAPTIVA VERDE LAND CORP.
Per: ______________________________________
Anthony Balic
CFO
GREENBRIAR CAPITAL (U.S.) LLC
Per: ______________________________________
Jeff Ciachurski
CEO
GREENBRIAR SUSTAINABLE LIVING INC.
(the "Corporation")
CODE OF BUSINESS CONDUCT AND ETHICS
Objectives
The Corporation's commitment to ethical and lawful business conduct is a fundamental shared value of our Board of Directors (the "Board of Directors"), management and employees and critical to our success. Our standards for business conduct provide that we will uphold ethical and legal standards vigorously as we pursue our financial objectives, and that honesty and integrity will not be compromised by us anywhere at any time. Consistent with these principles, the Board of Directors had adopted this Code of Business Conduct and Ethics (the "Code") as a guide to the high ethical and legal standards expected of its directors, officers and employees.
Application of the Code
This Code applies to all directors, officers and employees of the Corporation and its subsidiaries (who are referred to collectively as "Corporation Personnel").
Monitoring Compliance and Waivers
The Board of Directors is responsible for monitoring compliance with this Code. A waiver of this Code will be granted only in exceptional circumstances. Any waivers from this Code that are granted for the benefit of the Corporation's directors or executive officers shall be granted by the Board of Directors only. Any waiver for employees will be granted only upon approval by the Corporation's Chief Executive Officer (the "CEO").
Conflicts of Interest
Corporation Personnel must act honestly, in good faith and in the best interests of the Corporation. Corporation Personnel must avoid situations involving a conflict or the potential for a conflict between their personal interests and the interests of the Corporation. Questions or reports regarding any conflict of interest or potential conflict of interest should be directed to the CEO.
The following are examples of conflicts that may arise in the course of carrying out the Corporation's business.
1. Outside Business Interests. Corporation Personnel are free to take on employment and other activities outside of their work responsibilities with the Corporation. However, in doing so, Corporation Personnel must ensure that any "outside" activities do not present a real or perceived conflict with the interests of the Corporation or with their duties as Corporation Personnel.
- 2 -
2. Outside Directorships. Corporation Personnel are free to take on directorships, however, Corporation Personnel must be aware of any potential for conflicts with the interests of the Corporation.
3. Financial Interests in Suppliers, Contractors or Competitors. Any proposed affiliation between Corporation Personnel and any entity that has a relationship with the Corporation is subject to review by the Board of Directors.
4. Outside Personal Loan or Guarantee from the Corporation. Corporation Personnel should not accept, whether directly or indirectly, any loan or guarantee of obligations from the Corporation for personal benefit.
5. Giving and Receiving Gifts. Corporation Personnel are prohibited from soliciting or receiving any gift, loan, reward or benefit from a supplier or customer in exchange for any decision, act or omission by any Corporation Personnel in the course of carrying out their functions. Similarly, Corporation Personnel should not try to influence the decisions of a supplier or customer by giving gifts. Anyone receiving any such gift, loan, reward or benefit must report the same to the CEO. The giving and receiving of modest gifts or entertainment as a part of normal business courtesy and hospitality is permitted. However, the use of expense accounts to deviate from any policy described herein is strictly forbidden.
Protection and Proper Use of Corporate Assets and Opportunities
All Corporation Personnel must handle the physical and intellectual assets of the Corporation with integrity and with due regard to the interests of all of the Corporation's stakeholders. Corporation Personnel cannot appropriate a corporate opportunity or corporate property, arising out of their relationship with the Corporation, for their own personal benefit.
Corporation Personnel must have authorization to enter into business transactions on behalf of the Corporation. All corporate transactions must be accounted for in the Corporation's books. Records must not be manipulated or destroyed for the purpose of impeding or obstructing any investigation undertaken by the Corporation or a governmental body.
No action shall be taken to fraudulently influence or mislead anyone engaged in the performance of an audit of the Corporation's financial statements.
Theft, carelessness and waste have a direct impact on the Corporation's profitability. Any suspected incident of fraud or theft should be immediately reported to any member of Corporation management, including the CEO. The Corporation's assets should be used for legitimate business purposes, though incidental personal use may be authorized from time to time.
Email and Internet systems are provided primarily for business use. Personal use of these resources should be kept to a minimum. As email may not be entirely secure, Corporation Personnel must exercise caution and etiquette when sending email correspondence.
- 3 -
Confidentiality of Corporate Information
Confidential information is any information that is not known to the general public and includes business research, market plans, strategic objectives, unpublished financial information, customer, supplier and personnel lists and all intellectual property, including trade secrets, software, trademarks, copyrights and patents. Confidential information may not be given or released without proper authority and appropriate protection to anyone not employed by the Corporation or to Corporation Personnel who have no need for such information.
Corporation Personnel are prohibited from trading or encouraging others to trade in the securities of the Corporation where the person trading is in possession of material non-public information.
Fair Dealing
Corporation Personnel shall not obtain or use information or trade secrets from any other corporation. Corporation Personnel shall not undertake any activities that could reasonably be expected to result in an unreasonable restraint of trade, unfair trade practice or any other anticompetitive behaviour in violation of any law. However, in the normal course of business, it is not unusual for Corporation Personnel to acquire information about other organizations. In doing so, Corporation Personnel must not use illegal means to acquire a competitor's trade secrets or other confidential information. Any Corporation Personnel who work in an area that requires frequent contacts with competitors, customers or suppliers should be particularly sensitive to the requirements of competition laws.
The Corporation undertakes to deal fairly with all Corporation Personnel. There is a "no tolerance" policy in place for any form of discrimination or harassment against Corporation Personnel with respect to race, religion, age, gender, marital and family status, sexual orientation, ethnic or national origin or disability or any other grounds enumerated in applicable human rights legislation.
Compliance with Laws, Rules and Regulations
All Corporation Personnel must comply with all health and safety laws, regulations and Corporation policies.
All Corporation Personnel, in discharging their duties, must comply with the laws of the countries in which the Corporation and its subsidiaries carry on business. All Corporation Personnel are charged with the responsibility for acquiring sufficient knowledge of the laws involved in each area relating to their particular duties.
Corporation Personnel are prohibited from making payments or giving gifts to a public official in any country in which the Corporation and its subsidiaries operate, in order to obtain a business advantage or is in violation of applicable anti-corruption legislation.
- 4 -
Reporting of any Illegal or Unethical Behaviour
Corporation Personnel are each responsible for being aware of and understanding and complying with this Code when making business decisions. Corporation Personnel must promptly report any problems or concerns and any actual or potential violation of this Code. To do otherwise will be viewed as condoning a violation of this Code.
There shall be no reprisal or other action taken against any Corporation Personnel who, in good faith, bring forward concerns about actual or potential violations of laws or this Code. Anyone engaging in any form of retaliatory conduct will be subject to disciplinary action, which may include termination.
Corporation Personnel should first raise a complaint or concern with his or her supervisor. If that is not possible for some reason or if this does not resolve the matter, Corporation Personnel must take the matter up the chain of management within the Corporation. Ultimately, unresolved complaints and concerns should be referred to the Chair of the Corporation's Audit Committee who will treat all disclosures in confidence and will involve only those individuals who need to be involved in order to conduct an investigation. Any complaint regarding accounting, internal accounting or auditing matters or a concern regarding questionable accounting or auditing matters should be referred to the Chair of the Audit Committee.
Consequences of Violating this Code
Failure to comply with this Code will be considered by this Corporation to be a very serious matter. Depending on the nature and severity of the violation, disciplinary action may be taken by the Corporation, including termination. In addition, the Corporation may make claims for reimbursement of losses or damages and/or the Corporation may refer the matter to the authorities. Anyone who fails to report a violation upon discovery or otherwise condones the violation of this Code may also be subject to disciplinary action.
__________
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Jeff Ciachurski, certify that:
1. I have reviewed this annual report on Form 20-F of Greenbriar Sustainable Living Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
4. The company's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the company's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the company's internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company's internal control over financial reporting.
5. The company's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company's auditor and the audit committee of the company's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the company's internal control over financial reporting.
Date: April 29, 2024
/s/ Jeff Ciachurski
_______________________
Jeff Ciachurski
Chief Executive Officer
(Principal Executive Officer)
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Anthony Balic, certify that:
1. I have reviewed this annual report on Form 20-F of Greenbriar Sustainable Living Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
4. The company's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the company's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the company's internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company's internal control over financial reporting.
5. The company's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company's auditor and the audit committee of the company's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the company's internal control over financial reporting.
Date: April 29, 2024
/s/ Anthony Balic
_______________________
Anthony Balic
Chief Financial Officer
(Principal Financial Officer)
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Greenbriar Capital Corp. on Form 20-F for the fiscal year ended December 31, 2023 filed with the Securities and Exchange Commission on the date hereof (the "Report"), the undersigned hereby certify that to the best of our knowledge:
|
|
1. |
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
|
|
2. |
The information contained in the Report fairly presents, in all material respects, the financial conditions and results of operations of Greenbriar Capital Corp. |
| Date: April 29, 2024 | |||
| /s/ Jeff Ciachurski | |||
| Name: Jeffrey Ciachurski | |||
| Title: Chief Executive Officer | |||
| (Principal Executive Officer) | |||
| Date: April 29, 2024 | |||
| /s/ Anthony Balic | |||
| Name: Anthony Balic | |||
| Title: Chief Financial Officer | |||
| (Principal Financial Officer) |
GREENBRIAR CAPITAL CORP.
(the "Company")
STOCK OPTION PLAN
Dated for Reference September 14, 2012, as amended May 16, 2022
ARTICLE 1
PURPOSE AND INTERPRETATION
Purpose
1.1 The purpose of this Plan is to advance the interests of the Company by encouraging equity participation in the Company through the acquisition of Common Shares of the Company. It is the intention of the Company that this Plan will at all times be in compliance with TSX Venture Policies (or, if applicable, NEX Policies) and any inconsistencies between this Plan and TSX Venture Policies (or, if applicable, NEX Policies) will be resolved in favour of the latter.
Definitions
1.2 In this Plan
(a) Affiliate means a company that is a parent or subsidiary of the Company, or that is controlled by the same entity as the Company;
(b) Associate has the meaning set out in the Securities Act;
(c) Black-out Period means an interval of time during which the Company has determined that one or more Participants may not trade any securities of the Company because they may be in possession of undisclosed material information pertaining to the Company, or when in anticipation of the release of quarterly or annual financials, to avoid potential conflicts associated with a company's insider-trading policy or applicable securities legislation, (which, for greater certainty, does not include the period during which a cease trade order is in effect to which the Company or in respect of an Insider, that Insider, is subject);
(d) Board means the board of directors of the Company or any committee thereof duly empowered or authorized to grant Options under this Plan;
(e) Change of Control means the occurrence of any of:
(i) any transaction at any time and by whatever means pursuant to which any person or any group of two or more persons acting jointly or in concert (other than the Company or any of its affiliates or subsidiary) thereafter acquires the direct or indirect "beneficial ownership" (as defined in the Business Corporations Act (British Columbia)) of, or acquires the right to exercise control or direction over, securities of the Company representing 50% or more of the then issued and outstanding voting
- 2 -
securities of the Company in any manner whatsoever, including, without limitation, as a result of a take-over bid, an issuance or exchange of securities, an amalgamation of the Company with any other person, an arrangement, a capital reorganization or any other business combination or reorganization
(ii) the sale, assignment or other transfer of all or substantially all of the assets of the Company to a person or any group of two or more persons acting jointly or in concert (other than a wholly-owned subsidiary of the Company);
(iii) the occurrence of a transaction requiring approval of the Company's security holders whereby the Company is acquired through consolidation, merger, exchange of securities, purchase of assets, amalgamation, statutory arrangement or otherwise by any person or any group of two or more persons acting jointly or in concert (other than an exchange of securities with a wholly-owned subsidiary of the Company;
(iv) a majority of the Board consists of individuals which management of the Company has not nominated for election or appointment as directors; or
(v) the Board passes a resolution to the effect that an event comparable to an event set forth in this definition has occurred;
(f) Cause means "Just Cause" as defined in the Participant's employment agreement or agreement for services with the Company or one of its Affiliates, or if such term is not defined or if the Participant has not entered into an employment agreement or agreement for services with the Company or one of its Affiliates, then as such term is defined by applicable law, and shall include, without limitation, the occurrence of one of the following events with respect to the Participant: (i) has materially breached any written agreement between the Participant and the Company; (ii) is convicted of a criminal offence relating to duties of the Participant, including any for breach of trust or fraud; (iii) has refused to comply with a lawful order or direction of the Company or the Board; (iv) has engaged in negligence or incompetence in carrying out the duties and responsibilities of his or her position in a diligent, professional and efficient manner; or (v) has been involved in any other act, omission, or misconduct which constitutes just cause at common law;
(g) Common Shares means the common shares without par value in the capital of the Company providing such class is listed on the TSX Venture (or, NEX, as the case may be);
(h) Company means the company named at the top hereof and includes, unless the context otherwise requires, all of its Affiliates and successors according to law;
(i) Consultant means, in relation to the Company, an individual (other than a Director, Officer or Employee of the Company or any of its subsidiaries) or Company that:
(i) is engaged to provide on an ongoing bona fide basis, consulting, technical, management or other services to the Company or to any of its subsidiaries, other than services provided in relation to a Distribution;
- 3 -
(ii) provides the services under a written contract between the Company or any of its subsidiaries and the individual or the Company, as the case may be; and
(iii) in the reasonable opinion of the Company, spends or will spend a significant amount of time and attention on the affairs and business of the Company or of any of its subsidiaries.
(j) Consultant Company means a consultant that is a company;
(k) Directors means a director (as defined under applicable securities laws) of the Company or any of its subsidiaries;
(l) Discounted Market Price has the meaning assigned by Policy 1.1 of the TSX Venture Policies;
(m) Disinterested Shareholder Approval has the meaning assigned by Policy 4.4 Sections 5.3(b) and (c) of the TSX Venture Policies;
(n) Distribution has the meaning assigned by the Securities Act, and generally refers to a distribution of securities by the Company from treasury;
(o) Effective Date for an Option means the date of grant thereof by the Board;
(p) Employee means:
(i) an individual who is considered an employee of the Company or of its subsidiary under the Income Tax Act (Canada) and for whom income tax, employment insurance and Canada Pension Plan deductions must be made at source;
(ii) an individual who works full-time for the Company or its subsidiary providing services normally provided by an employee and who is subject to the same control and direction by the Company or its subsidiary over the details and methods of work as an employee of the Company or of the subsidiary, as the case may be, but for whom income tax deductions are not made at source; or
(iii) an individual who works for the Company or its subsidiary on a continuing and regular basis for a minimum amount of time per week (the number of hours should be disclosed in the submission) providing services normally provided by an employee and who is subject to the same control and direction by the Company or its subsidiary over the details and methods of work as an employee of the Company or of the subsidiary, as the case may be, but for whom income tax deductions are not made at source;
(q) Exchange Hold Period has the meaning assigned by Policy 1.1 of the TSX Venture Policies;
(r) Exercise Price means the amount payable per Common Share on the exercise of an Option, as determined in accordance with the terms hereof;
- 4 -
(s) Expiry Date means the day on which an Option lapses as specified in the Option Commitment therefor or in accordance with the terms of this Plan;
(t) Insider means an insider as defined in the TSX Venture Policies or as defined in securities legislation applicable to the Company;
(u) Investor Relations Activities has the meaning assigned by Policy 1.1 of the TSX Venture Policies;
(v) Investor Relations Service Provider means any Consultant that performs Investor Relations Activities for the Company and any other Service Provider whose role and duties primarily consist of Investor Relations Activities;
(w) Management Company Employee means an individual employed by a company providing management services to the Company which services are required for the ongoing successful operation of the business enterprise of the Company;
(x) Market Price has the meaning assigned by Policy 1.1 of the TSX Venture Policies;
(y) NEX means a separate board of the TSX Venture for companies previously listed on the TSX Venture or the Toronto Stock Exchange which have failed to maintain compliance with the ongoing financial listing standards of those markets;
(z) NEX Policies means the rules and policies of NEX as amended from time to time;
(aa) Officer means an officer (as defined under applicable securities laws) of the Company or any of its subsidiaries;
(bb) Option means the right to purchase Common Shares granted hereunder to a Service Provider;
(cc) Option Commitment means the notice of grant of an Option delivered by the Company hereunder to a Service Provider and substantially in the form of Schedule A attached hereto;
(dd) Optioned Shares means Common Shares that may be issued in the future to a Service Provider upon the exercise of an Option;
(ee) Optionee means the recipient of an Option hereunder;
(ff) Outstanding Shares means at the relevant time, the number of issued and outstanding Common Shares of the Company from time to time;
(gg) Participant means a Service Provider that becomes an Optionee;
(hh) Person includes a company, any unincorporated entity, or an individual;
(ii) Plan means this share option plan, the terms of which are set out herein or as may be amended;
- 5 -
(jj) Plan Shares means the total number of Common Shares which may be reserved for issuance as Optioned Shares under the Plan as provided in §2.2;
(kk) Regulatory Approval means the approval of the TSX Venture and any other securities regulatory authority that has lawful jurisdiction over the Plan and any Options issued hereunder;
(ll) Securities Act means the Securities Act, R.S.B.C. 1996, c. 418, or any successor legislation;
(mm) Service Provider means a Person who is a bona fide Director, Officer, Employee, Management Company Employee, Consultant or Consultant Company, and also includes a company, 100% of the share capital of which is beneficially owned by one or more Service Providers;
(nn) Share Compensation Arrangement means any Option under this Plan but also includes any other stock option, stock option plan, performance share unit plan, restricted share unit plan, deferred share unit plan, phantom stock plan, or any other compensation or incentive mechanism involving the issuance or potential issuance of Common Shares from treasury to a Service Provider;
(oo) Shareholder Approval means approval by a majority of the votes cast by eligible shareholders of the Company at a duly constituted shareholders' meeting;
(pp) Take Over Bid means a take over bid as defined in National Instrument 62-104 (Take-over Bids and Issuer Bids) or the analogous provisions of securities legislation applicable to the Company;
(qq) TSX Venture means the TSX Venture Exchange and any successor thereto;
(rr) TSX Venture Policies means the rules and policies of the TSX Venture as amended from time to time; and
(ss) VWAP means the volume weighted average trading price of the Company's Common Shares on the TSX Venture calculated by dividing the total value by the total volume of such securities traded for the five trading days immediately preceding the exercise of the subject Option.
Other Words and Phrases
1.3 Words and phrases used in this Plan but which are not defined in the Plan, but are defined in the TSX Venture Policies (and, if applicable, the NEX Policies), will have the meaning assigned to them in the TSX Venture Policies (and, if applicable, NEX Policies).
- 6 -
Gender
1.4 Words importing the masculine gender include the feminine or neuter, words in the singular include the plural, words importing a corporate entity include individuals, and vice versa.
ARTICLE 2
SHARE OPTION PLAN
Establishment of Share Option Plan
2.1 The Plan is hereby established to recognize contributions made by Service Providers and to create an incentive for their continuing assistance to the Company and its Affiliates.
Maximum Plan Shares
2.2 The maximum aggregate number of Plan Shares that may be reserved for issuance under the Plan at any point in time is equal to 10% of the Outstanding Shares at the time Plan Shares are reserved for issuance as a result of the grant of an Option, less any Common Shares reserved for issuance under Share Compensation Arrangements unless this Plan is amended pursuant to the requirements of the TSX Venture Policies (and, if applicable, NEX Policies).
Eligibility
2.3 Options to purchase Common Shares may be granted hereunder to Service Providers of the Company, or its affiliates, from time to time by the Board. Service Providers that are not individuals will be required to undertake in writing not to effect or permit any transfer of ownership or option of any of its securities, or to issue more of its securities (so as to indirectly transfer the benefits of an Option), as long as such Option remains outstanding, unless the written permission of the TSX Venture and the Company is obtained.
Options Granted Under the Plan
2.4 All Options granted under the Plan will be evidenced by an Option Commitment in the form attached as Schedule A, showing the number of Optioned Shares, the term of the Option, a reference to vesting terms, if any, and the Exercise Price.
2.5 Subject to specific variations approved by the Board, all terms and conditions set out herein will be deemed to be incorporated into and form part of an Option Commitment made hereunder.
Limitations on Issue
2.6 Subject to §2.10, the following restrictions on issuances of Options are applicable under the Plan, together with all other Share Compensation Arrangements:
- 7 -
(a) no Service Provider can be granted an Option if that Option would result in the total number of Options, together with all other Share Compensation Arrangements granted to such Service Provider in the previous 12 months, exceeding 5% of the Outstanding Shares, unless the Company has obtained Disinterested Shareholder Approval to do so;
(b) the aggregate number of Options, together with any other Share Compensation Arrangements, granted to all Investor Relations Service Providers in any 12-month period cannot exceed 2% of the Outstanding Shares, calculated at the time of grant, without the prior consent of the TSX Venture (or NEX, as the case may be);
(c) the aggregate number of Options, together with any other Share Compensation Arrangements, granted to any one Consultant in any 12 month period cannot exceed 2% of the Outstanding Shares, calculated at the time of grant, without the prior consent of the TSX Venture (or the NEX, as the case may be); and
(d) for so long as such limitation is required by the TSX Venture, the maximum number of Options which may be granted within any twelve (12) months period to Service providers who perform investor relations activities must not exceed 2% of the issued and outstanding Common Shares, and such Options must vest in stages over twelve (12) months with no more than 25% vesting in any three month period. In addition, the maximum number of Common Shares that may be granted to any one Consultant under this Plan, together with any other Share Compensation Arrangements, within a twelve (12) month period, may not exceed 2% of the issued Common Shares calculated on the date of grant.
Investor Relations Services Providers cannot receive any security based compensation other than Options.
Exercised and Unexercised Options
2.7 In the event an Option granted under the Plan is exercised, expires unexercised or is otherwise lawfully cancelled prior to exercise of the Option, the Optioned Shares that were issuable thereunder will be returned to the Plan and will be eligible for re-issuance.
Powers of the Board
2.8 The Board will be responsible for the general administration of the Plan and the proper execution of its provisions, the interpretation of the Plan and the determination of all questions arising hereunder. Without limiting the generality of the foregoing, the Board has the power to
(a) allot Common Shares for issuance in connection with the exercise of Options;
(b) grant Options hereunder;
(c) subject to any necessary Regulatory Approval, amend, suspend, terminate or discontinue the Plan, or revoke or alter any action taken in connection therewith, except that no general amendment or suspension of the Plan will, without the prior written consent of all Optionees, alter or impair any Option previously granted under the Plan unless the alteration or impairment occurred as a result of a change in the TSX Venture Policies or the Company's tier classification thereunder; and
- 8 -
(d) delegate all or such portion of its powers hereunder as it may determine to one or more committees of the Board, either indefinitely or for such period of time as it may specify, and thereafter each such committee may exercise the powers and discharge the duties of the Board in respect of the Plan so delegated to the same extent as the Board is hereby authorized so to do.
Amendment of the Plan by the Board of Directors
2.9 Subject to the requirements of the TSX Venture Policies and the prior receipt of any necessary Regulatory Approval, the Board may in its absolute discretion, amend or modify the Plan or any Option granted as follows:
(a) it may make amendments which are of a typographical, grammatical, clerical nature only;
(b) amendments of a housekeeping nature;
(c) it may change the vesting provisions of an Option granted hereunder, subject to prior written approval of the TSX Venture, if applicable;
(d) it may change the termination provision of an Option granted hereunder which does not entail an extension beyond the lesser of the original Expiry Date of such Option or 12 months from termination;
(e) it may make amendments necessary as a result in changes in securities laws applicable to the Company or any requested changes by the TSX Venture;
(f) if the Company becomes listed or quoted on a stock exchange or stock market senior to the TSX Venture, it may make such amendments as may be required by the policies of such senior stock exchange or stock market; and
(g) it may make such amendments as reduce, and do not increase, the benefits of this Plan to Service Providers.
Amendments Requiring Disinterested Shareholder Approval
2.10 The Company will be required to obtain Disinterested Shareholder Approval prior to any of the following actions becoming effective:
(a) the Plan, together with all of the Company's other previous Share Compensation Arrangements, could result at any time in:
(i) the aggregate number of Common Shares reserved for issuance to Insiders exceeding 10% of the Outstanding Shares;
- 9 -
(ii) the aggregate number of Common Shares reserved for issuance to Insiders within a 12-month period exceeding 10% of the Outstanding Shares; or
(iii) the aggregate number of Common Shares reserved for issuance to any one Optionee, within any 12-month period, exceeding 5% of the Outstanding Shares;
(b) any reduction in the Exercise Price of an Option, or extension to the Expiry Date of an Option held by an Insider at the time of the proposed amendment, is subject to Disinterested Shareholder Approval in accordance with the policies of the TSX Venture.
Options Granted Under the Company's Previous Share Option Plans
2.11 Any option granted pursuant to a stock option plan previously adopted by the Board which is outstanding at the time this Plan comes into effect shall be deemed to have been issued under this Plan and shall, as of the date this Plan comes into effect, be governed by the terms and conditions hereof.
ARTICLE 3
TERMS AND CONDITIONS OF OPTIONS
Exercise Price
3.1 The Exercise Price of an Option will be set by the Board at the time such Option is allocated under the Plan, and cannot be less than the Discounted Market Price.
Term of Option
3.2 The term of an Option will be set by the Board at the time such Option is allocated under the Plan. An Option can be exercisable for a maximum of 10 years from the Effective Date.
Option Amendment
3.3 Subject to §2.10(b), the Exercise Price of an Option may be amended only if at least six (6) months have elapsed since the later of the date of commencement of the term of the Option, the date the Common Shares commenced trading on the TSX Venture, or the date of the last amendment of the Exercise Price.
3.4 An Option must be outstanding for at least one year before the Company may extend its term, subject to the limits contained in §3.2.
3.5 Except as provided under TSX Venture Policies:
(a) any proposed amendment to the terms of an Option must be approved by the TSX Venture, and subject to shareholder approval where applicable, prior to the exercise of such Option;
(b) the Company issue a news release outlining the terms of the amendment; and
- 10 -
(c) if the amendment is in respect of Share Based Compensation held by an Insider of the Company, the Company obtains Disinterested Shareholder Approval.
Vesting of Options
3.6 Subject to §3.7, vesting of Options shall be at the discretion of the Board and, with respect to any particular Options granted under the Plan, in the absence of a vesting schedule being specified at the time of grant, all such Options shall vest immediately. Where applicable, vesting of Options will generally be subject to:
(a) the Service Provider remaining employed by or continuing to provide services to the Company or any of its Affiliates as well as, at the discretion of the Board, achieving certain milestones which may be defined by the Board from time to time or receiving a satisfactory performance review by the Company or any of its Affiliates during the vesting period; or
(b) the Service Provider remaining as a Director of the Company or any of its Affiliates during the vesting period.
Vesting of Options Granted to Investor Relations Service Providers
3.7 Notwithstanding §3.6, Options granted to Investor Relations Service Providers will vest such that:
(a) no more than 25% of the Options vest no sooner than three months after the Options were granted;
(b) no more than another 25% of Options vest no sooner than six months after the Options were granted;
(c) no more than 25% of Options vest no sooner than nine months after the Options were granted; and
(d) the remainder of the Options vest no sooner than 12 months after the Options were granted.
Effect of Take-Over Bid
3.8 If a Take Over Bid is made to the shareholders generally then the Company shall immediately upon receipt of notice of the Take Over Bid, notify each Optionee currently holding an Option of the Take Over Bid, with full particulars thereof whereupon such Option may, notwithstanding §3.6 and §3.7 or any vesting requirements set out in the Option Commitment, be immediately exercised in whole or in part by the Optionee, subject to approval of the TSX Venture (or the NEX, as the case may be) for vesting requirements imposed by the TSX Venture Policies.
Acceleration of Vesting on Change of Control
3.9 In the event of a Change of Control occurring, Options granted and outstanding, which are subject to vesting provisions, shall be deemed to have immediately vested upon the occurrence of the Change of Control, excluding Options granted to a Person engaged in Investor Relations Activities.
- 11 -
Extension of Options Expiring During Blackout Period
3.10 Should the Expiry Date for an Option fall within a Blackout Period, such Expiry Date shall, subject to approval of the TSX Venture (or the NEX, as the case may be), be automatically extended without any further act or formality to that day which is the tenth (10th) Business Day after the end of the Blackout Period, such tenth Business Day to be considered the Expiry Date for such Option for all purposes under the Plan. Notwithstanding §2.8, the tenth Business Day period referred to in this §3.10 may not be extended by the Board.
Optionee Ceasing to be Director, Employee or Service Provider
3.11 Options may be exercised after the Service Provider has left his/her employ/office or has been advised by the Company that his/her services are no longer required or his/her service contract has expired, until the term applicable to such Options expires, except as follows:
(a) in the case of the death of an Optionee, any vested Option held by him at the date of death will become exercisable by the Optionee's lawful personal representatives, heirs or executors until the earlier of one year after the date of death of such Optionee and the date of expiration of the term otherwise applicable to such Option;
(b) an Option granted to any Service Provider (excluding Service Providers conducting Investor Relations Activities) will expire 90 days (or such other time, not to exceed one year, as shall be determined by the Board as at the date of grant or agreed to by the Board and the Optionee at any time prior to expiry of the Option) after the date the Optionee ceases to be employed by or provide services to the Company, and only to the extent that such Option was vested at the date the Optionee ceased to be so employed by or to provide services to the Company;
(c) an Option granted to any Investor Relations Service Provider will expire 30 days after the date the Optionee ceases to be employed by or provide services to the Company, and only to the extent that such Option was vested at the date the Optionee ceased to be so employed by or to provide services to the Company; and
(d) in the case of an Optionee being dismissed from employment or service for Cause, such Optionee's Options, whether or not vested at the date of dismissal will immediately terminate without right to exercise same.
Non Assignable
3.12 Subject to §3.11(a), all Options will be exercisable only by the Optionee to whom they are granted and will not be assignable or transferable.
- 12 -
Adjustment of the Number of Optioned Shares
3.13 The number of Common Shares subject to an Option will, subject to the approval of the TSX Venture, where applicable, be subject to adjustment in the events and in the manner following:
(a) in the event of a subdivision of Common Shares as constituted on the date hereof, at any time while an Option is in effect, into a greater number of Common Shares, the Company will thereafter deliver at the time of purchase of Optioned Shares hereunder, in addition to the number of Optioned Shares in respect of which the right to purchase is then being exercised, such additional number of Common Shares as result from the subdivision without an Optionee making any additional payment or giving any other consideration therefor;
(b) in the event of a consolidation of the Common Shares as constituted on the date hereof, at any time while an Option is in effect, into a lesser number of Common Shares, the Company will thereafter deliver and an Optionee will accept, at the time of purchase of Optioned Shares hereunder, in lieu of the number of Optioned Shares in respect of which the right to purchase is then being exercised, the lesser number of Common Shares as result from the consolidation;
(c) in the event of any change of the Common Shares as constituted on the date hereof, at any time while an Option is in effect, the Company will thereafter deliver at the time of purchase of Optioned Shares hereunder the number of shares of the appropriate class resulting from the said change as an Optionee would have been entitled to receive in respect of the number of Common Shares so purchased had the right to purchase been exercised before such change;
(d) in the event of a capital reorganization, reclassification or change of outstanding equity shares (other than a change in the par value thereof) of the Company, a consolidation, merger or amalgamation of the Company with or into any other company or a sale of the property of the Company as or substantially as an entirety at any time while an Option is in effect, an Optionee will thereafter have the right to purchase and receive, in lieu of the Optioned Shares immediately theretofore purchasable and receivable upon the exercise of the Option, the kind and amount of shares and other securities and property receivable upon such capital reorganization, reclassification, change, consolidation, merger, amalgamation or sale which the holder of a number of Common Shares equal to the number of Optioned Shares immediately theretofore purchasable and receivable upon the exercise of the Option would have received as a result thereof. The subdivision or consolidation of Common Shares at any time outstanding (whether with or without par value) will not be deemed to be a capital reorganization or a reclassification of the capital of the Company for the purposes of this §3.13;
(e) an adjustment will take effect at the time of the event giving rise to the adjustment, and the adjustments provided for in this section are cumulative;
(f) the Company will not be required to issue fractional shares in satisfaction of its obligations hereunder. Any fractional interest in a Common Share that would, except for the provisions of this §3.13, be deliverable upon the exercise of an Option will be cancelled and not be deliverable by the Company; and
- 13 -
(g) if any questions arise at any time with respect to the Exercise Price or number of Optioned Shares deliverable upon exercise of an Option in any of the events set out in this §3.13, such questions will be conclusively determined by the Company's auditors, or, if they decline to so act, any other firm of Chartered Accountants, in Vancouver, British Columbia (or in the city of the Company's principal executive office) that the Company may designate and who will be granted access to all appropriate records and such determination will be binding upon the Company and all Optionees.
ARTICLE 4
COMMITMENT AND EXERCISE PROCEDURES
Option Commitment
4.1 Upon grant of an Option hereunder, an authorized officer of the Company will deliver to the Optionee an Option Commitment detailing the terms of such Options and upon such delivery the Optionee will be subject to the Plan and have the right to purchase the Optioned Shares at the Exercise Price set out therein subject to the terms and conditions hereof, including any additional requirements contemplated with respect to the payment of required withholding taxes on behalf of Optionees.
Manner of Exercise
4.2 An Optionee who wishes to exercise his Option may do so by delivering:
(a) a written notice to the Company specifying the number of Optioned Shares being acquired pursuant to the Option; and
(b) a certified cheque, wire transfer or bank draft payable to the Company for the aggregate Exercise Price for the Optioned Shares being acquired, plus any required withholding tax amount subject to §4.4.
Cashless Exercise
4.3 Subject to the provisions of this Plan (including, without limitation, Section 4.4) and, upon prior approval of the Board, once an Option has vested and become exercisable, an Optionee may elect to exercise such Option by either:
(a) excluding Options held by any Investor Relations Service Provider, a "net exercise" procedure in which the Company issues to the Optionee, Common Shares equal to the number determined by dividing (i) the product of the number of Options being exercised multiplied by the difference between the VWAP of the underlying Common Shares and the exercise price of the subject Options by (ii) the VWAP of the underlying Common Shares; or
- 14 -
(b) a broker assisted "cashless exercise" in which the Company delivers a copy of irrevocable instructions to a broker engaged for such purposes by the Company to sell the Common Shares otherwise deliverable upon the exercise of the Options and to deliver promptly to the Company an amount equal to the Exercise Price and all applicable required withholding obligations a determined by the Company against delivery of the Common Shares to settle the applicable trade.
An Option may be exercised pursuant to this §4.3 from time to time by delivery to the Company, at its head office or such other place as may be specified by the Company of (i) written notice of exercise specifying that the Optionee has elected to effect such a cashless exercise of such Option, the method of cashless exercise, and the number of Options to be exercised and
(ii) the payment of an amount for any tax withholding or remittance obligations of the Optionee or the Company arising under applicable law and verified by the Company to its satisfaction (or by entering into some other arrangement acceptable to the Company in its discretion, if any). The Participant shall comply with Section 4.4 of this Plan with regard to any applicable required withholding obligations and with such other procedures and policies as the Company may prescribe or determine to be necessary or advisable from time to time including prior written consent of the Board in connection with such exercise.
In the event of a Cashless Exercise or Net Exercise, the number of Options exercised, surrendered or converted, and not the number of Common Shares actually issued by the Company, must be included in calculating the limits set forth in §2.2, §2.6 and §2.10 of this Plan.
Tax Withholding and Procedures
4.4 Notwithstanding anything else contained in this Plan, the Company may, from time to time, implement such procedures and conditions as it determines appropriate with respect to the withholding and remittance of taxes imposed under applicable law, or the funding of related amounts for which liability may arise under such applicable law. Without limiting the generality of the foregoing, an Optionee who wishes to exercise an Option must, in addition to following the procedures set out in§4.2 and elsewhere in this Plan, and as a condition of exercise:
(a) deliver a certified cheque, wire transfer or bank draft payable to the Company for the amount determined by the Company to be the appropriate amount on account of such taxes or related amounts; or
(b) otherwise ensure, in a manner acceptable to the Company (if at all) in its sole and unfettered discretion, that the amount will be securely funded;
and must in all other respects follow any related procedures and conditions imposed by the Company.
- 15 -
Delivery of Optioned Shares and Hold Periods
4.5 As soon as practicable after receipt of the notice of exercise described in §4.2 or §4.3 as applicable, and payment in full for the Optioned Shares being acquired, the Company will direct its transfer agent to issue to the Optionee the appropriate number of Optioned Shares. An Exchange Hold Period will be applied from the date of grant for all Options granted to:
(a) Insiders of the Company; or
(b) where Options are granted to any Service Provider, including Insiders, where the Exercise Price is at a discount to the Market Price.
4.6 Pursuant to TSX Venture Policies, where the Exchange Hold Period is applicable, the certificate representing the Optioned Shares or written notice in the case of uncertificated shares will include a legend stipulating that the Optioned Shares issued are subject to a four-month Exchange Hold Period commencing the date of the Option Commitment.
ARTICLE 5
GENERAL
Employment and Services
5.1 Nothing contained in the Plan will confer upon or imply in favour of any Optionee any right with respect to office, employment or provision of services with the Company, or interfere in any way with the right of the Company to lawfully terminate the Optionee's office, employment or service at any time pursuant to the arrangements pertaining to same. Participation in the Plan by an Optionee is voluntary.
No Representation or Warranty
5.2 The Company makes no representation or warranty as to the future market value of Common Shares issued in accordance with the provisions of the Plan or to the effect of the Income Tax Act (Canada) or any other taxing statute governing the Options or the Common Shares issuable thereunder or the tax consequences to a Service Provider. Compliance with applicable securities laws as to the disclosure and resale obligations of each Participant is the responsibility of each Participant and not the Company.
Interpretation
5.3 The Plan will be governed and construed in accordance with the laws of the Province of British Columbia.
Continuation of Plan
5.4 The Plan will become effective from and after June 15, 2022, and will remain effective provided that the Plan, or any amended version thereof, receives Shareholder Approval at each annual general meeting of the holders of Common Shares of the Company subsequent to June 15, 2022.
- 16 -
Amendment of the Plan
5.5 The Board reserves the right, in its absolute discretion, to at any time amend, modify or terminate this Plan with respect to all Common Shares in respect of Options which have not yet been granted hereunder. Any amendment to any provision of this Plan will be subject to any necessary Regulatory Approvals and Shareholder Approval unless the effect of such amendment is intended to reduce (but not to increase) the benefits of this Plan to Service Providers; AND THAT the Company issue a news release outlining the terms of the amendment.
SCHEDULE A
SHARE OPTION PLAN
OPTION COMMITMENT
Notice is hereby given that, effective this ______________ day of ___________________, ____________ (the "Effective Date") Greenbriar Capital Corp. (the "Company") has granted to ________________________________________________ (the "Optionee"), an Option to acquire ________________ Common Shares ("Optioned Shares") up to 5:00 p.m. Vancouver Time on the ____________ day of __________________, ______________ (the "Expiry Date") at an Exercise Price of Cdn$_________per share.
Optioned Shares are to vest immediately.
OR
Optioned Shares will vest [INSERT VESTING SCHEDULE AND TERMS]
The Option shall expire ________days after the Optionee ceases to be employed by or provide services to the Company.
The grant of the Option evidenced hereby is made subject to the terms and conditions of the Plan, which are hereby incorporated herein and form part hereof.
To exercise your Option, deliver a written notice specifying the number of Optioned Shares you wish to acquire, together with a certified cheque, wire transfer or bank draft payable to the Company for the aggregate Exercise Price. A certificate, or written notice in the case of uncertificated shares, for the Optioned Shares so acquired will be issued by the transfer agent as soon as practicable thereafter and may bear a minimum four month non-transferability legend from the date of this Option Commitment, the text of which is as follows. [Note: If a four month hold period is applicable, the following legend must be placed on the certificate or the written notice in the case of uncertificated shares.]
"WITHOUT PRIOR WRITTEN APPROVAL OF THE TSX VENTURE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE TSX VENTURE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL
12:00 A.M. (MIDNIGHT) ON [insert date 4 months from the date of grant]".
The Company and the Optionee represent that the Optionee under the terms and conditions of the Plan is a bona fide Service Provider (as defined in the Plan), entitled to receive Options under TSX Venture Policies.
The Optionee also acknowledges and consents to the collection and use of Personal Information (as defined in the Policies of the TSX Venture Exchange) by both the Company and the TSX Venture (or the NEX, as the case may be) as more particularly set out in the Acknowledgement - Personal Information in use by the TSX Venture (or the NEX, as the case may be) on the date of this Option Commitment.
GREENBRIAR CAPITAL CORP.
| Authorized Signatory |
| [insert name of optionee] |
| Signature of Optionee |
SCHEDULE B
TO STOCK OPTION PLAN
[●]
Re: Employee Stock Option Exercise
Attn: Stock Option Plan Administrator, Greenbriar Capital Corp. (the "Company")
This letter is to inform [●] that I,________________________________, wish to exercise____________ options, at per share, on this day of , 20 .
Payment issued in favour of [●] for the amount of $____________________will be forwarded, including withholding tax amounts.
Please register the share certificate in the name of:
| Name of Optionee: |
| Address: | |
Please send share certificate to:
| Name: |
| Address: | |
Sincerely,
| Signature of Optionee | Date | SIN Number (for T4) |