Organigram Global Inc 6-K, filed Mar 19, 2021
Organigram Global Inc. (OGI)
About this 6-K
Organigram Global Inc filed this 6-K on March 19, 2021.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16 UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of March 2021
Commission File No. 001-38885
ORGANIGRAM HOLDINGS INC.
(Translation of registrant's name into English)
35 English Drive
Moncton, New Brunswick, Canada E1E 3X3
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F
Form 20-F [ ] Form 40-F [X]
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1) [ ]
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7) [ ]
INCORPORATION BY REFERENCE
Exhibit 99.1 to this report on Form 6-K furnished to the SEC is expressly incorporated by reference into the Registration Statement on Form F-10 of ORGANIGRAM HOLDINGS INC. (File No. 333-234564), as amended and supplemented.
SUBMITTED HEREWITH
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
ORGANIGRAM HOLDINGS INC.
/s/ Derrick West
Derrick West
Chief Financial Officer
Date: March 19, 2021
FORM 51-102F3
MATERIAL CHANGE REPORT
Item One - Name and Address of Company
Organigram Holdings Inc. (the "Company")
35 English Drive
Moncton, NB E1E 3X3
Item Two - Date of Material Change
March 10, 2021
Item Three - News Release
The news release reporting the material change described in this report was issued in Moncton, New Brunswick on March 11, 2021 (the "News Release").
The News Release was distributed through Business Wire and filed with each of the relevant Canadian securities regulatory authorities via SEDAR. The News Release is attached hereto as Schedule "A" and incorporated by reference herein.
Item Four - Summary of Material Change
On March 11, 2021, the Company announced a strategic investment from a wholly-owned subsidiary of BAT (LSE: BATS and NYSE: BTI). The BAT subsidiary subscribed for approximately 58.3 million common shares of the Company, which represents a 19.9% equity interest on a post-transaction basis for total proceeds of approximately C$221 million at a price per share of C$3.792, based on the five-day volume weighted average price on the Toronto Stock Exchange ending March 9, 2021.
Item Five - Full Description of Material Change
For a full description of the material change, please see the News Release attached hereto as Schedule "A" which News Release forms an integral part of this material change report.
Item Six - Reliance on subsection 7.1(2) of National Instrument 51-102
Not Applicable.
Item Seven - Omitted Information
Not Applicable.
Item Eight - Executive Officer
Greg Engel, Chief Executive Officer (855) 961-9420
Item Nine - Date of Report
March 19, 2021
Forward-looking Information
This report contains "forward-looking information" and "forward-looking statements" within the meaning of applicable securities legislation (collectively, "forward-looking information"). Often, but not always, forward-looking information can be identified by the use of words such as "plans", "expects", "estimates", "intends", "anticipates", "believes" or variations of such words and phrases or state that certain actions, events, or results "may", "could", "would", "might" or "will" be taken, occur or be achieved.
Forward-looking information involves known and unknown risks, uncertainties and other factors that may cause actual results, events, performance, prospects, opportunities or achievements of the Company to differ materially from current expectations or future results, performance or achievements expressed or implied by the forward-looking information contained in this report. Risks, uncertainties and other factors involved with forward-looking information which could cause actual events, results, performance, prospects and opportunities to differ materially from those expressed or implied by such forward-looking information include factors and risks as disclosed in the Company's most recent annual information form, management's discussion and analysis and other Company documents filed from time to time on SEDAR (see www.sedar.com), or the Company's annual report on Form 40-F and its reports on Form 6-K filed or furnished to the Securities and Exchange Commission (the "SEC") on EDGAR (see www.sec.gov), and such other continuous disclosure materials as may be filed or furnished from time to time by the Company with Canadian securities regulatory authorities and the SEC. Although the Company believes that the assumptions and factors used in preparing the forward-looking information in this report are reasonable, undue reliance should not be placed on such information and no assurance can be given that such events will occur in the disclosed time frames or at all. The forward-looking information included in this report is given as of the date of this report and the Company disclaims any intention or obligation, except to the extent required by law, to update or revise any forward-looking information, whether as a result of new information, future events or otherwise. We seek safe harbor.
SCHEDULE "A"
Organigram and BAT Form Product Development Collaboration - Includes Strategic Investment from BAT for 19.9% Equity Interest
Accelerates Organigram's R&D and product pipeline development, provides meaningful capital injection of ~C$221 million and strengthens Organigram's ability to compete in existing markets and expand into U.S. and internationally
MONCTON, New Brunswick--(BUSINESS WIRE)--March 11, 2021--Organigram Holdings Inc. ("OGI", TSX: OGI and NASDAQ: OGI) is pleased to announce a C$221 million strategic investment from a wholly-owned subsidiary of BAT (LSE:BATS and NYSE:BTI). The BAT subsidiary has subscribed for approximately 58.3 million common shares of OGI, which represents a 19.9% equity interest1 on a post-transaction basis for total proceeds of approximately C$221 million ("Investment Proceeds") at a price per share of C$3.792, based on a five-day volume weighted average price on the TSX ending March 9, 2021.
Organigram Inc., a leading licensed cannabis producer and a subsidiary of Organigram Holdings Inc. (together, "Organigram" or "the Company"), and BAT have also entered into a Product Development Collaboration Agreement (the "PDC Agreement") pursuant to which a "Center of Excellence" will be established to focus on developing the next generation of cannabis products with an initial focus on CBD. The Center of Excellence will be located at Organigram's indoor facility in Moncton, New Brunswick, which holds the Health Canada licenses required to conduct research and development ("R&D") activities with cannabis products. Both companies will contribute scientists, researchers, and product developers to the Center of Excellence which will be governed and supervised by a steering committee consisting of an equal number of senior members from both companies. Under the terms of the PDC Agreement, both Organigram and BAT have access to certain of each other's intellectual property ("IP") and, subject to certain limitations, have the right to independently, globally commercialize the products, technologies and IP created by the Center of Excellence pursuant to the PDC Agreement.
"This is a tremendous milestone in the evolution of Organigram. It is instrumental in advancing our commitment to offering consumers innovative cannabis products and to furthering our long- term international strategy," said Greg Engel, Chief Executive Officer of Organigram. "We have been extremely selective about aligning with a strategic partner and, in BAT, we've found a leading consumer goods business with sophisticated management, innovative product platforms, an impressive dedication to research and development, deep consumer insights, regulatory expertise and a commitment to responsible stewardship and consumer safety among many other enviable attributes. This collaboration is the culmination of extensive discussions and workshops and in-depth due diligence."
Dr. David O'Reilly, Director, Scientific Research at BAT, commented: "Today's announcement underscores BAT's commitment to accelerating our transformation and building A Better Tomorrow. Our multi-category, consumer-centric approach, which is key to our transformation, aims to provide choice and meet the evolving needs of adult consumers. Choice that provides reduced risk alternatives2 to combustible cigarettes, as well as going beyond tobacco and nicotine into new and exciting areas of product innovation.
We believe this collaboration has significant potential to enhance our activities, allowing us to combine our world-class expertise while enabling scientists from both BAT and Organigram to work closely together and share information real-time. We know that in R&D this is how you make real breakthroughs and accelerate progress.
We have been impressed by the strong management team and culture at Organigram. This collaboration aligns with our long-term strategy and will enable us to work with Organigram at an R&D level, as well contributing to their wider operations."
Strategic Rationale for the Deal
BAT's investment in Organigram and the PDC Agreement is expected to strengthen Organigram's balance sheet, accelerate its R&D program and product development activities and bolster its ability to enter the U.S. and other international markets. "In our view, the cannabis industry is still in the nascent stages of product development. We believe that product innovation backed by core fundamental R&D is necessary to establish a long-term competitive advantage in the cannabis industry," stated Paolo De Luca, the Company's Chief Strategic Officer. "This strategic collaboration strengthens our ability to deliver innovative, differentiated products that appeal to adult consumers and we expect it to be transformational for Organigram and its shareholders."
Organigram believes BAT's investment and the PDC will benefit the Company as follows:
• Accelerates and strengthens Organigram's R&D and product development activities, including granting access to certain BAT-owned IP. The Center of Excellence provides Organigram the opportunity to closely collaborate with BAT, a leading global consumer business with extensive expertise and experience in R&D, on the development of innovative and differentiated cannabis products, IP and technologies. The significant injection of capital from BAT also enables Organigram to further invest in its own R&D and product development activities. In addition, Organigram will gain access to certain BAT IP for the purpose of undertaking R&D activities under the PDC Agreement.
• Raises significant capital to invest in growth opportunities, including entering the United States and other international markets. With the significant capital injection, Organigram is even better positioned to expand into the U.S. and further international markets at the appropriate time and subject to applicable law. Upon closing, Organigram will have pro-forma cash and short-term investments of approximately C$296 million (of which approximately C$30 million will be reserved in order to satisfy certain of Organigram's obligations under the PDC Agreement and the balance of which can be used, among other things, for growth opportunities and other strategic investments including advancing Organigram's international strategy). Under the PDC Agreement, the Company will be granted a worldwide, royalty-free, sub-licensable, perpetual license to exploit IP developed under the PDC in any field. This license which is non-exclusive outside of Canada and sole in Canada will also enhance Organigram's ability to enter markets outside of Canada, including through sublicensing arrangements with established operators.
• Allows Organigram to leverage BAT's expertise for its wider operations through the Centre of Excellence and BAT's representation on Organigram's Board of Directors ("Board"). BAT is a leading consumer goods business with tremendous expertise and experience accumulated over more than a century in research and development and product innovation. Organigram will be provided direct access to BAT's expertise through the Center of Excellence staff seconded from BAT (including members of the steering committee which will oversee the Center of Excellence, as well as a group of scientists, researchers, and product developers).
BAT is also entitled to add two Board members to Organigram's Board. At closing, Organigram added one BAT nominee, Mr. Jeyan Heper, to its Board and another nominee is expected to be added in the near term. Mr. Heper, who is a Group Category Director at BAT, has over 23 years of diverse management, strategic leadership, and mergers and acquisitions experience at global companies including BAT, Procter & Gamble, Danone and LifeStyles Healthcare. His expertise includes growing value and volume share through global brand and equity building and consumer marketing. Both nominees are expected to bring deep R&D, product and strategic expertise to further complement Organigram's existing Board capabilities as well as extend its international presence. Further particulars regarding BAT's second nominee and that nominee's credentials will be provided upon appointment.
Key Transaction Terms
Investor Rights
Contemporaneously with the closing, Organigram and BAT entered into an investor rights agreement (the "Investor Rights Agreement") providing BAT with certain rights including its right to participate in equity issuances to maintain its percentage shareholding, subject to customary exceptions, and periodic top-up rights to permit maintenance of its percentage ownership following exempt issuances.
The Investor Rights Agreement also includes customary pro rata piggy-back registration rights in favour of BAT, and certain share transfer restrictions for BAT's shareholding interests in OGI.
Board Representation
BAT's board representation rights under the Investor Rights Agreement, entitle BAT to appoint (i) 20% of the Board for so long as it holds at least 15% of the issued and outstanding common shares in OGI from time to time and (ii) 10% of the Board so long as BAT holds at least 10% of the issued and outstanding common shares of Organigram from time to time.
Product Development Collaboration
Pursuant to the terms of the PDC Agreement, approximately C$30 million of the Investment Proceeds shall be reserved in order to satisfy certain of Organigram's obligations under the PDC Agreement (the "Allocated Investment Proceeds"), including Organigram's portion of its funding obligations under a mutually agreed budget for the Center of Excellence, and then (together with the balance of the net Investment Proceeds) for general corporate purposes, subject to certain proceed restrictions. Costs relating to the Center of Excellence will be funded equally by Organigram and BAT.
Pursuant to the PDC Agreement, Organigram and BAT have agreed to jointly develop cannabis vapour products, cannabis oral products and any other products, IP or technologies the parties mutually agree to develop. BAT will own all IP developed under this collaboration and will grant to Organigram a royalty-free, perpetual, global licence to all such IP. Each party has also agreed to grant to the other a non-exclusive, perpetual and irrevocable license to certain existing IP of such party and its affiliates for purposes of conducting the development activities and exploiting the products, technologies and IP created by the Centre of Excellence pursuant to the PDC Agreement, subject to certain restrictions.
Advisors
BMO Capital Markets acted as exclusive financial advisor to Organigram and Goodmans LLP acted as its primary legal advisor with DLA Piper as its European counsel.
Herbert Smith Freehills LLP and Stikeman Elliott LLP acted as legal advisors to BAT.
Conference Call and Webcast
The Company will host a conference call and webcast to discuss this announcement:
Date: March 11, 2021
Time: 8:00am Eastern Time
To register for the conference call, please use this link:
http://www.directeventreg.com/registration/event/7066166
To ensure you are connected for the full call, we suggest registering a minimum of 10 minutes before the start of the call. After registering, a confirmation will be sent through email, including dial in details and unique conference call codes for entry. Registration is open through the live call.
To access the webcast:
https://event.on24.com/wcc/r/3068403/48F2A5FBA0B5C6B4184DD6205BE8A259
A replay of the webcast will be available within 24 hours after the conclusion of the call at https://www.organigram.ca/investors and will be archived for a period of 90 days following the call.
About Organigram Holdings Inc.
Organigram Holdings Inc. is a NASDAQ Global Select and TSX listed company whose wholly owned subsidiary, Organigram Inc., is a licensed producer of cannabis and cannabis-derived products in Canada.
Organigram is focused on producing high-quality, indoor-grown cannabis for patients and adult recreational consumers in Canada, as well as developing international business partnerships to extend the Company's global footprint. Organigram has also developed a portfolio of legal adult use recreational cannabis brands including The Edison Cannabis Company, SHRED and Trailblazer. Organigram's facility is located in Moncton, New Brunswick and the Company is regulated by the Cannabis Act and the Cannabis Regulations (Canada).
About BAT
BAT is a leading, multi-category consumer goods business, established in 1902. Our purpose is to build A Better Tomorrow™ by reducing the health impact of our business which entails:
• Committing to providing adult consumers with a wide range of enjoyable and less risky products
• Continuing to be clear that combustible cigarettes pose serious health risks, and the only way to avoid these risks is not to start or to quit
• Encouraging those who otherwise continue to smoke, to switch completely to scientifically-substantiated, reduced-risk alternatives**
• Tracking and sharing progress of our transformation
BAT has announced a target of increasing the number of its non-combustible product consumers to 50 million by 2030; and to achieve at least £5 billion in New Categories revenues in 2025.
** Based on the weight of evidence and assuming a complete switch from cigarette smoking. These products are not risk free and are addictive.
Forward-Looking Information
This news release contains forward-looking information. Often, but not always, forward-looking information can be identified by the use of words such as "plans", "expects", "estimates", "intends", "anticipates", "believes" or variations of such words and phrases or state that certain actions, events, or results "may", "could", "would", "might" or "will" be taken, occur or be achieved. Forward-looking information involves known and unknown risks, uncertainties and other factors that may cause actual results, events, performance or achievements of Organigram to differ materially from current expectations or future results, performance or achievements expressed or implied by the forward-looking information contained in this news release. Risks, uncertainties and other factors involved with forward-looking information could cause actual events, results, performance, prospects and opportunities to differ materially from those expressed or implied by such forward-looking information include factors and risks as disclosed in the Company's most recent annual information form, management's discussion and analysis and other Company documents filed from time to time on SEDAR (see www.sedar.com) and filed or furnished to the Securities and Exchange Commission on EDGAR (see www.sec.gov). In addition, there can be no assurance that the collaboration will enhance Organigram's ability to enter international markets, result in the development of successful new products, or otherwise achieve the anticipated benefits. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this press release. Although the Company believes that the assumptions and factors used in preparing the forward-looking information in this news release are reasonable, undue reliance should not be placed on such information and no assurance can be given that such events will occur in the disclosed time frames or at all. The forward-looking information included in this news release are made as of the date of this news release and the Company disclaims any intention or obligation, except to the extent required by law, to update or revise any forward-looking information, whether as a result of new information, future events or otherwise. The descriptions of the terms of the agreements referenced in this release are qualified by the terms of the agreements themselves, copies of which shall be filed under Organigram's profile on SEDAR (see www.sedar.com) and filed or furnished to the Securities and Exchange Commission on EDGAR (see www.sec.gov).
____________________
1 Calculated on a non-diluted basis
2 Reduced Risk is based on the weight of evidence and assuming a complete switch from cigarette smoking to these products. These products are not risk free and are addictive.
Contacts
For Investor Relations enquiries, please contact:
Amy Schwalm
Vice President, Investor Relations
amy.schwalm@organigram.ca
(416) 704-9057
For Media enquiries, please contact:
Marlo Taylor
mtaylor@gagecommunications.ca
SUBSCRIPTION AGREEMENT
between
BT DE INVESTMENTS INC.
and ORGANIGRAM HOLDINGS INC.
March 10, 2021
TABLE OF CONTENTS
(i)
ADDENDA
Schedule A Representations and Warranties of the Company
Schedule B Representations and Warranties and Acknowledgements of the Purchaser
(ii)
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT dated March 10, 2021 (this "Agreement") is made by and between BT DE Investments Inc., a corporation existing under the Laws of the State of Delaware (the "Purchaser"), and Organigram Holdings Inc., a corporation existing under the Act (the "Company").
RECITALS:
A. The Purchaser wishes to subscribe for and purchase from the Company, and the Company wishes to issue and sell to the Purchaser, on a private placement basis (the "Investment"), 58,336,392 Common Shares (collectively, the "Subscription Shares") at a price of $3.792 per Subscription Share (the "Per Share Subscription Price"), for an aggregate subscription price in respect of such Subscription Shares of $221,211,598.46 (such aggregate amount, the "Subscription Price").
B. The Purchaser and the Company wish to enter into this Agreement to record their agreement in respect of the Investment.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by the Parties, the Parties hereby agree as follows:
Section 1.1 Definitions.
ARTICLE 1
DEFINITIONS AND INTERPRETATION
Whenever used in this Agreement, the following terms shall have the meanings set forth
below:
"Act" means the Canada Business Corporations Act. "Affiliate" has the meaning ascribed to such term in NI 45-106.
"Agreement" has the meaning ascribed to such term in the preamble to this Agreement. "Allocated Investment Proceeds" means $31,109,048.
"Anti-Corruption Laws" means the Corruption of Foreign Public Officials Act (Canada) and any other analogous Laws.
"Anti-Spam Laws" means an Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (Canada) and any other analogous Laws.
"Authorization" means, with respect to any Person, any Order, license, permit, certification, approval, registration, consent, authorization, clearance, franchise, qualification, filing, privilege, variance or exemption issued or granted by, or any Contract with, any Governmental Authority having jurisdiction over such Person and/or any of its assets, as the same may have been, or may from time to time be, amended, supplemented or replaced.
"Bankruptcy Event" means, with respect to any Person, such Person: (1) committing an act of bankruptcy; (2) becoming insolvent; (3) proposing a compromise or arrangement to creditors generally; (4) a bankruptcy or receivership Order being granted by a court of competent jurisdiction against it; (5) making a voluntary assignment in bankruptcy; (6) taking any proceedings
(a) with respect to a compromise or arrangement, (b) to be declared bankrupt or wound-up, or (c) to have a receiver appointed for all or any of its property; or (7) having any execution or distress become enforceable against or levied upon all or any of its assets; in each case, under or pursuant to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Laws affecting creditors' rights generally.
"Bankruptcy Laws" means, collectively, all bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Laws affecting creditors' rights generally.
"BMO" means Bank of Montreal.
"Board" means the board of directors of the Company, as the same may be constituted from time to time.
"Business Day" means a day other than a Saturday, Sunday or other day on which commercial banks in Toronto, Ontario, Moncton, New Brunswick, New York City, New York or London, United Kingdom are authorized or required by Law to close.
"Business Sustainability Breach" means, in respect of private business dealings or in dealings with the public or government sector (whether in relation to the affairs of the Company or any of its Subsidiaries or the affairs of the customers or suppliers or contacts of the Company or any of its Subsidiaries), whether directly or indirectly, any of:
(1) giving, making, offering or receiving or agreeing to give, make, offer or receive any payment, gift or other advantage which would violate any Anti-Corruption Laws;
(2) receiving, agreeing or attempting to receive the benefits of or profits from a crime or agreeing to assist any Person to retain the benefits of or profits from a crime; and
(3) involvement in or attempted involvement in modern slavery or human trafficking or agreeing or attempting to assist any Person that is involved in modern slavery or human trafficking in any activity which would violate Human Trafficking Laws.
"Canadian Securities Regulators" means, collectively, the securities commissions or other securities regulatory authorities in each of the Qualifying Jurisdictions.
"Cannabis" has the meaning ascribed to such term in the Cannabis Act, and includes: (1) all living or dead material, plants, seeds, plant parts or plant cells from any cannabis species or subspecies (including sativa, indica and ruderalis), including wet and dry material, trichomes, oil and extracts from cannabis (including cannabinoid or terpene extracts from the cannabis plant); and
(2) biologically or synthetically synthesized analogs of cannabinoids extracted from the cannabis plant using micro-organisms, including: (a) cannabis and marijuana or marihuana (as such term is defined under Law, including the Cannabis Act); and (b) "industrial hemp" (as such term is defined in the Industrial Hemp Regulations issued under the Cannabis Act or other Laws).
"Cannabis Act" means the Cannabis Act (Canada).
"Cannabis Authorizations" means all Authorizations issued or granted, or required to be issued or granted, to a Person under or pursuant to Cannabis Laws, including all Contracts with Governmental Authorities thereunder or relating thereto.
"Cannabis Laws" means all Laws and Contracts with Governmental Authorities, and all other statutory requirements, relating to Cannabis, including the Cannabis Act and all Cannabis Authorizations.
"Change of Control" means:
(1) any acquisition, purchase, subscription or sale (or any lease, long-term supply agreement, exclusive licensing agreement or other arrangement having the same economic effect as an acquisition, purchase or sale), direct or indirect, of:
(a) assets of the Company and/or one or more of its Subsidiaries that, individually or in the aggregate, constitute 20% or more of the consolidated assets or contribute 20% or more of the consolidated revenue of the Company and its Subsidiaries, taken as a whole; or
(b) 20% or more of any voting or equity securities of the Company or any of its Subsidiaries (or rights or interests in such voting or equity securities, including convertible securities that, if exercised or converted would result in a Person or group of Persons beneficially owning 20% or more of any class of voting or equity securities of the Company or one or more of its Subsidiaries);
(2) any direct or indirect take-over bid, tender offer, exchange offer, treasury issuance or similar transaction that, if consummated, would result in a Person or group of Persons beneficially owning 20% or more of any class of voting or equity securities of the Company or one or more of its Subsidiaries;
(3) any plan of arrangement, merger, amalgamation, consolidation, share exchange, share reclassification, business combination, reorganization, recapitalization, liquidation, dissolution, winding up or other similar transaction or series of transactions involving the Company or any of its Subsidiaries that, if consummated, would result in a Person or group of Persons beneficially owning 20% or more of any class of voting or equity securities of the Company or one or more of its Subsidiaries or any successor entity upon completion; or
(4) any other transaction or series of related or unrelated transactions involving the Company and/or any of its Subsidiaries that has a substantially similar effect as any of the foregoing.
"Claim" means any cause of action, action, claim, demand, lawsuit, audit, proceeding or arbitration (including, for greater certainty, any proceeding or investigation by a Governmental Authority).
"Closing" means the closing of the transaction of purchase and sale of the Subscription Shares pursuant to this Agreement.
"Collaboration Agreement" means the Collaboration Agreement entered into contemporaneously herewith between the Purchaser and the Company in respect of the Product Development Collaboration.
"Common Shares" means the common shares in the capital of the Company. "Company" has the meaning ascribed to such term in the preamble to this Agreement.
"Company Fundamental Representations" means, collectively, the representations and warranties relating to the Company and its Subsidiaries in the following Sections of Schedule A: Section (1) (Incorporation and Organizational Matters), Section (2) (Corporate Authorization, Qualification and Power), Section (3) (Execution and Binding Obligation), Section (4) (Authorized and Issued Capital), Section (5) (No Bankruptcy), Section (6) (Organizational Structure and Ownership of Subsidiaries), Section (8) (No Prospectus), and Section (9) (Subscription Shares Issued as Fully Paid).
"Company Intellectual Property" means Intellectual Property owned by, licensed to or used by the Company or any of its Subsidiaries.
"Company DSU" means a deferred share unit issued or issuable pursuant to the Equity Incentive Plans, as the context requires.
"Company Option" means an option to purchase Common Shares issued or issuable pursuant to the Equity Incentive Plans, as the context requires.
"Company PSU" means a preferred share unit issued or issuable pursuant to the Equity Incentive Plans, as the context requires.
"Company RSU" means a restricted share unit issued or issuable pursuant to the Equity Incentive Plans, as the context requires.
"Company Shareholders" means, collectively, all Persons that own and/or control, directly or indirectly, Shares, and "Company Shareholder" means any one of them, as the context requires.
"Company Warrant" means a warrant to purchase Common Shares pursuant to the terms of the Contract governing the issuance or grant thereof.
"Confidential Information" means, with respect to the Company and its Subsidiaries, on the one hand, and the Purchaser and its Affiliates, on the other hand, all confidential or proprietary information, intellectual property and confidential facts relating to the business and affairs of the Company and its Subsidiaries, on the one hand, or the Purchaser and its Affiliates, on the other hand, respectively, including their respective customers, products, services, technology, trade secrets, know-how, systems and operations; provided, that "Confidential Information" does not include any information that: (1) is or becomes generally available to the public other than as a result of disclosure, directly or indirectly, by the Purchaser or any of its Affiliates or any of their respective Representatives, on the one hand, or the Company or any of its Subsidiaries or any of their respective Representatives, on the other hand, in violation of Section 7.13; (2) is or becomes available to the Purchaser or its Affiliates or any of their respective Representatives, on the one hand, or the Company or any of its Subsidiaries or any of their respective Representatives, on the other hand, on a non-confidential basis from a source other than the other or any of its Representatives, as applicable, unless the applicable Person knew, after reasonable inquiry, that such source was prohibited from disclosing the information to it by a contractual, fiduciary or other legal obligation; or (3) the Purchaser, on the one hand, or the Company, on the other hand, can show was independently acquired or developed by or on behalf of the Purchaser or any of its Affiliates or any of their respective Representatives, on the one hand, or by the Company or any of its Subsidiaries or any of their respective Representatives, on the other hand, prior to the disclosure by or on behalf of the other of, and without the use of any, Confidential Information.
"Contract" means any agreement, indenture, contract, lease, deed of trust, license, option, instruments, arrangement, obligation, understanding or other commitment, in each case, whether written or oral.
"COVID Program" has the meaning ascribed to such term in Section (24)(e) of Schedule A.
"Credit Agreement" means the amended and restated credit agreement dated as of November 27, 2020 by and among the Company, BMO, as administrative agent, and the Lenders party thereto.
"Data Protection Authority" means any Governmental Authority responsible for the enforcement of Data Protection Laws.
"Data Protection Laws" means all Laws relating to privacy and/or the processing of Personal Data, including PIPEDA and any similar or analogous Laws of any other jurisdiction.
"Disclosure Letter" means the disclosure letter delivered by the Company to the Purchaser concurrently with the execution of this Agreement.
"Disclosure Record" means, collectively, all documents publicly filed by the Company on under Securities Laws, whether on SEDAR in Canada or on EDGAR in the United States.
"DRS" has the meaning ascribed to such term in Section 2.1(2).
"EDGAR" means the Electronic Data Gathering, Analysis and Retrieval system of the SEC.
"Employee Plans" has the meaning ascribed to such term in Section (24)(j) of Schedule A.
"Encumbrance" means, with respect to any property or asset, any mortgage, lien (statutory or otherwise), pledge, charge, security interest, hypothec, prior Claim, occupancy right, right of first refusal or offer, adverse Claim, lease, easement, license, option, title retention agreement or arrangement, conditional sale, deemed or statutory trust, restrictive covenant or other encumbrance of any nature, in each case, whether contingent or absolute.
"Environmental Laws" means all Laws and Contracts with Governmental Authorities, and all other statutory requirements, relating to public health, the protection of the environment, or the generation, transportation, storage, treatment or disposal of any Hazardous Materials, and all Authorizations issued or granted pursuant to or under such Laws, Contracts and other statutory requirements.
"Equity Incentive Plans" means, collectively, all plans of the Company and/or any of its Subsidiaries in effect from time to time pursuant to which securities of the Company and/or any of its Subsidiaries may be issued, or options or other securities convertible or exercisable into, or exchangeable for, securities of the Company and/or any of its Subsidiaries may be granted, to the Persons set out therein (including the equity incentive plan approved by the Company Shareholders at the annual and special meeting of the Company Shareholders held on February 25, 2020).
"Financial Statements" means, collectively, the: (1) audited consolidated financial statements of the Company and its Subsidiaries as at and for the years ended August 31, 2020 and August 31, 2019, including the notes thereto together with any auditor's report thereon as at and for the periods included therein; and (2) unaudited consolidated financial statements of the Company and its Subsidiaries as at and for the period ended November 30, 2020.
"Governmental Authority" means:
(1) any domestic or foreign government, whether national, federal, provincial, state, regional, territorial, municipal or local (whether administrative, legislative, executive or otherwise);
(2) any domestic or foreign agency, authority, ministry, department, regulatory authority, court, central bank, bureau, board or other instrumentality having legislative, judicial, taxing, regulatory, prosecutorial or administrative powers or functions of, or pertaining to, government, including Health Canada and other applicable regulatory authorities with oversight of the Cannabis industry and any business or operations within the Cannabis industry generally;
(3) any court, commission, individual, arbitrator, arbitration panel or other body having adjudicative, regulatory, judicial, quasi-judicial, administrative or similar functions, including the Securities Regulators; and/or
(4) the TSX, NASDAQ and any other stock or securities exchange.
"Hazardous Materials" means, collectively, petroleum, petroleum hydrocarbons, petroleum products or petroleum by-products, radioactive materials, asbestos or asbestos-containing materials, gasoline, diesel fuel, pesticides, radon, urea formaldehyde, mould, lead or lead- containing materials, and polychlorinated biphenyls, and any other chemical, material, natural or artificial substance, waste or thing (whether in a solid, gas, liquid, gas, vapour or other form) in any amount or concentration that is: (1) now or hereafter becomes defined as or included in the definition of "hazardous substances", "hazardous materials", "hazardous wastes", "extremely hazardous wastes", "restricted hazardous wastes", "toxic substances", "toxic pollutants", "pollutants", "deleterious substances", "dangerous goods", "corrosive substances", "regulated substances", "solid wastes" or "contaminants" or words of similar import under any Environmental Laws; or (2) otherwise regulated under or for which liability can be imposed under Environmental Laws, or that is capable (alone or in combination) of causing harm to humans or any other living organism, or of damaging the environment or public health or welfare (including controlled, clinical, special or hazardous waste, polluting, toxic or dangerous substances, radiation, noise, vibration, electricity and heat).
"Human Trafficking Laws" means the Modern Slavery Act 2015 (United Kingdom), the Criminal Code of Canada and the Immigration and Refugee Protection Act (Canada) and any other analogous Laws.
"IFRS" means the International Financial Reporting Standards as issued by the International Accounting Standards Board (IASB), interpretations issued by the International Financial Reporting Interpretations Committee, International Accounting Standards issued by the International Accounting Standards Committee and the interpretations issued by the Standing Interpretations Committee.
"Indebtedness" means, with respect to any Person, without duplication: (1) all indebtedness for borrowed money; (2) that portion of obligations with respect to capital leases that is properly classified as a liability on a balance sheet prepared in conformity with IFRS; (3) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; (4) any obligation owed for all or any part of the deferred purchase price of property or services; (5) all indebtedness secured by any Encumbrance on any property or asset owned or held by such Person regardless of whether the indebtedness secured thereby shall have been assumed by such Person or is non-recourse to the credit of such Person; (6) the face amount of any letter of credit or banker's acceptance issued or accepted, as the case may be, for the account of such Person or as to which such Person is otherwise liable for reimbursement of drawings or otherwise; (7) the direct or indirect guarantee, endorsement (otherwise than for collection or deposit in the Ordinary Course), co-making, discounting with recourse or sale with recourse by such Person of the obligation of another Person (or such Person in a different capacity); (8) any obligation of such Person the primary purpose or intent of which is to provide assurance to an obligee that the obligation of the obligor thereof will be paid or discharged, or any Contract relating thereto will be complied with, or the holders thereof will be protected (in whole or in part) against loss in respect thereof; (9) all obligations of such Person in respect of which interest charges are customarily paid; and (10) all net obligations, determined on a marked-to- market-basis, of such Person in respect of any exchange traded or over the counter derivative transaction, whether entered into for hedging or speculative purposes or otherwise.
"Information" means, collectively: (1) know-how (including trade secrets and other unpatented or unpatentable proprietary or Confidential Information, systems or procedures); (2) computer software, inventions, designs and other industrial or intellectual property of any nature whatsoever; (3) any information of a scientific, technical, or business nature; (4) pharmacological, medicinal chemistry, biological, chemical, biochemical, toxicological and clinical test data, analytical and quality control data and stability data; (5) process, horticultural and development information, results and data; (6) research, developmental, and demonstration work; (7) data and data files; and (8) all other information, methods, processes, formulations and formulae. For greater certainty, "Information": (a) may be embodied in or on any media, including hardware, software and/or documentation; (b) includes inventions to the extent such inventions are not included in Intellectual Property Rights; and (c) may include elements of public or non-proprietary information (provided, that the compilation of such public or non-proprietary information with or without other proprietary information results in such compilation being considered as proprietary to the Person compiling such information).
"Intellectual Property" means, collectively, all Intellectual Property Rights and Information.
"Intellectual Property Rights" means, collectively, all intellectual property rights as recognized under the Laws of Canada or any other countries or jurisdictions, including rights in and to Patents, Trademarks, copyrights, industrial designs and other intellectual property, and includes all applications or registrations, including any continuations, continuations in part, reissues, re- examinations, renewals and extensions thereof and amendments thereto, and rights to apply in any or all countries of the world for such registrations and applications, rights to bring a Claim, at law, in equity or otherwise, for any past, present and/or future infringement, violation or misappropriation, rights and privileges arising under Laws, and other industrial or intellectual property rights of the same or similar effect or nature in any jurisdiction relating to the foregoing throughout the world, and all goodwill associated with the foregoing.
"Investment" has the meaning ascribed to such term in the recitals to this Agreement.
"Investor Rights Agreement" means the Investor Rights Agreement entered into between the Purchaser and the Company in connection with the Closing.
"Law" means any and all applicable: (1) foreign or domestic constitution, treaty, law, statute, regulation, code, ordinance, principle of common law or equity, rule, municipal bylaw, Order or other requirement having the force of law; (2) policy, practice, protocol, standard or guideline of any Governmental Authority which, although not necessarily having the force of law, is regarded by such Governmental Authority as requiring compliance as if it had the force of law; and (3) rule of the TSX, NASDAQ and any other stock or securities exchange on which the Company has applied to list its securities or on which its securities are listed and/or traded.
"Leased Real Property" means, collectively all leasehold or sub-leasehold estates and other rights to license, use or occupy any land, buildings, structures, improvements, fixtures or other interests in real property held by the Company or any of its Subsidiaries.
"Lenders" means, collectively, BMO, Canadian Western Bank, Concentra Bank and Farm Credit Canada.
"Losses" has the meaning ascribed to such term in Section 6.2.
"Material Adverse Effect" means any change (including a decision to implement such a change made by the Board or by senior management of the Company who believe that confirmation of the decision of the Board is probable), event, occurrence, violation, inaccuracy, circumstance, development or effect that is, individually or in the aggregate, or would reasonably be expected to be, individually or in the aggregate, materially adverse to the business, assets (including intangible assets), capitalization, liabilities (contingent or otherwise), condition (financial or otherwise) or results of operations of the Company and/or its Subsidiaries, taken as a whole, except any such change, event, occurrence, violation, inaccuracy, circumstance, development or effect resulting from or arising in connection with:
(1) any change, development or condition in or relating to global, national or regional political conditions or in general economic, business, banking, regulatory, currency exchange, interest rate, rates of inflation or market conditions or in national or global financial, debt, commodities or capital markets;
(2) any change in the credit, debt, financial or capital markets, or changes in interest or exchange rates, in each case, in Canada and/or the United States;
(3) any change or proposed change in Laws affecting the Company or any of its Subsidiaries or their customers, or changes, or the adoption, proposal or implementation of changes, in IFRS, or the interpretation of any of the foregoing;
(4) any national or international disasters, calamities, emergencies, the continuation or escalation of the COVID-19 pandemic, or any military conflict, outbreak or escalation of hostilities, declared or undeclared war, or act of foreign or domestic terrorism; or
(5) the execution of this Agreement and the public announcement of the transactions contemplated hereby in compliance with the terms of this Agreement and the other Transaction Agreements; provided, that: (a) that with respect to clauses (1) through (4) above, such matter does not have a materially disproportionate effect on the Company and its Subsidiaries, taken as a whole, relative to other comparable Persons operating in the industries and businesses in which the Company and its Subsidiaries operate; and (b) references in this Agreement and the other Transaction Agreements to dollar amounts are not intended to be, and shall not be deemed to be, illustrative for purposes of determining whether a "Material Adverse Effect" has occurred.
"Material Contract" has the meaning ascribed to such term in Section 21(a)(x) of Schedule A.
"Misrepresentation" has the meaning ascribed to such term in Securities Laws.
"Money Laundering Laws" has the meaning ascribed to such term in Section 13 of Schedule A.
"NASDAQ" means the Nasdaq Global Select Market.
"NASDAQ Notification" means the notification provided to NASDAQ in respect of the Company's listing of the Subscription Shares on NASDAQ.
"NI 45-106" means National Instrument 45-106 - Prospectus Exemptions.
"NI 51-102" National Instrument 51-102 - Continuous Disclosure Obligations.
"NI 52-109" means National Instrument 52-109 - Certification of Disclosure in Issuers' Annual and Interim Filings.
"Non-Allocated Investment Proceeds" means an amount equal to: (1) the Subscription Price; less (2) the Allocated Investment Proceeds.
"Notice" has the meaning ascribed to such term in Section 7.3(1).
"OFAC" means the Office of Foreign Assets Control of the Department of Treasury of the United States.
"OHSA" has the meaning ascribed to such term in Section 24(g) of Schedule A.
"Order" means any order, directive, judgment, decree, injunction, decision, ruling, award or writ of any Governmental Authority.
"Ordinary Course" means, with respect to an action taken by a Person, that such action is consistent with the past practices of such Person and is taken in the ordinary course of normal operations of such Person.
"Owned Real Property" means, collectively, all land, together with all buildings, structures, improvements and fixtures located thereon, and all easements and other rights and interests appurtenant thereto, owned by the Company or any of its Subsidiaries.
"Parties" means, collectively, the Purchaser and the Company, and "Party" means any one of them, as context requires.
"Patents" means, collectively, all patents and applications arising or under the Laws of Canada, the United States or any other jurisdiction, country or region, including national and regional patents and applications and international patent applications, including, without limitation: (1) patent applications and issued patents therefor, and equivalent rights under the Patent Act (Canada) and the Patent Act (United States), including (a) utility patents, design patents, originals, provisionals, non-provisionals, divisionals, reissues, renewals, re-examinations, continuations, continuations-in-part, continuing prosecution applications, requests for continuing examinations and extensions, and applications for the foregoing, and (b) patent applications and issued patents for plant patents; (2) applications and issued registrations for plant varietals, including applications and registrations under the Plant Breeders' Rights Act (Canada) and the Plant Variety Protection Act (United States); (3) national and multinational counterparts of such patent and plant varietal applications, and issued patents or registrations applied for or registered in any and/or all countries of the world; (4) all rights to claim priority from and to apply in any and/or all countries of the world for such applications and issued patents or registrations, including all rights provided by multinational treaties or conventions for any of the foregoing; and (5) inventions and plant varietals described in any such applications and issued patents or registrations, including those that are included in any claim, capable of being reduced to a claim or could have been included as a claim in any such pending patent applications and issued patents.
"Permitted Encumbrances" means, collectively, the Encumbrances described in Section 1.1 of the Disclosure Letter under the heading "Permitted Encumbrances", but only to the extent that any such Encumbrance conforms to the description thereof in Section 1.1 of the Disclosure Letter under the heading "Permitted Encumbrances" and has been complied with by the Company and/or its Subsidiaries in all material respects in accordance with the terms thereof.
"Per Share Subscription Price" has the meaning ascribed to such term in the recitals to this Agreement.
"Person" means any individual, corporation, partnership, limited partnership, firm, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Authority or other entity.
"Personal Data" means any "personal information" (within the meaning of PIPEDA), and any other information relating to an identifiable Person that can be directly or indirectly identified in particular by reference to an identifier.
"PIPEDA" means the Personal Information Protection and Electronic Documents Act (Canada).
"Public Official" means any individual (whether appointed or elected) holding a legislative, administrative, or judicial office, including any individual employed by or acting on behalf of a public agency, a public enterprise (including any officer or employee of a state-owned or state- operated entity) or a public international organisation.
"Publicly Available Software" means, collectively: (1) any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as "free software" or "open source software" (e.g., Linux), or pursuant to "open source," "copyleft" or similar licensing and distribution models; and (2) any software that requires as a condition of use, modification and/or distribution of such software that such software or other software incorporated into, derived from, or distributed with such software be (a) disclosed or distributed in source code form, (b) licensed for the purpose of making derivative works or (c) redistributable at no or minimal charge.
"Purchaser" has the meaning ascribed to such term in the preamble to this Agreement.
"Purchaser Board Nominees" means, collectively, the Purchaser's nominees to the Board from time to time as contemplated in the Investor Rights Agreement, which initial Purchaser Board Nominees shall be the individuals set forth in Section 1.1 of the Disclosure Letter under the heading "Initial Purchaser Board Nominees".
"Purchaser Indemnified Persons" has the meaning ascribed to such term in Section 6.2.
"Product Development Collaboration" means the collaboration between the Purchaser and the Company (and one or more of their respective Affiliates) contemplated in the Collaboration Agreement.
"Product Development Collaboration Budget" means the budget relating to the Product Development Collaboration agreed to by the Purchaser and the Company and annexed to the Collaboration Agreement, as the same may be amended from time to time by mutual agreement of the Parties.
"Qualifying Jurisdictions" means, collectively, all of the provinces and territories of Canada.
"Registered Company Intellectual Property" has the meaning ascribed to such term in Section 27(b) of Schedule A.
"Regulation S" means Regulation promulgated under the U.S. Securities Act.
"Regulatory Approvals" means, collectively: (1) the TSX Conditional Approval; and (2) any other consent, waiver, permit, exemption, review, order, decision or approval of, or any registration and/or filing with, any Governmental Authority, or the expiry, waiver or termination of any waiting period imposed by Law or a Governmental Authority, in each case, in connection with the Investment and the transactions contemplated under this Agreement and the other Transaction Agreements, as determined by the Purchaser, acting reasonably.
"Representative" means, with respect to any Person, such Person's directors, officers, employees, agents, consultants, insurers, financing sources, legal counsel, accountants, advisors and other representatives.
"Sanctioned Country" means a country or territory that is the subject of comprehensive country- wide or territory-wide Sanctions from time to time. As of the date hereof, Sanctioned Country means each of the following: Cuba, Iran, North Korea, Syria and the territory of Crimea.
"Sanctions" means any trade, anti-terrorism, economic or financial sanctions Laws, regulations, embargoes or restrictive measures administered, enacted or enforced from time to time by a Sanctions Authority.
"Sanctions Authority" means: (1) the United States; (2) the European Union; (3) the United Kingdom; (4) the United Nations; (5) Canada; and (6) any government and official institution or agency of the foregoing, including OFAC, the US Department of State, Her Majesty's Treasury, the Minister of Foreign Affairs (Canada) and the Governor in Council (Canada).
"Sanctions List" means the Specially Designated Nationals and Blocked Persons List and the Sectoral Sanctions Identification List maintained by OFAC, the Consolidated List of Financial Sanctions Targets maintained by Her Majesty's Treasury, regulations made under the Special Economic Measures Act (Canada), the United Nations Act (Canada), the Criminal Code (Canada), the Sergei Magnitsky Law (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada) or any similar list maintained by, or public announcement of a Sanctions designation made by, a Sanctions Authority.
"Schedule" means a schedule attached to and forming an integral part of this Agreement.
"SEC" means the U.S. Securities and Exchange Commission and any other U.S. Governmental Authority administering the U.S. Securities Act and the U.S. Exchange Act at the time.
"Securities Laws" means, collectively, the securities Laws of each of the provinces and territories of Canada, the U.S. Securities Act, the U.S. Exchange Act, and the respective regulations, instruments and rules made thereunder, together with all applicable published policy statements, notices, blanket orders and rulings of the Securities Regulators, including the applicable rules and requirements of the TSX, NASDAQ, and any stock or securities exchange on which the Company has applied to list its securities or on which its securities are listed and/or traded.
"Securities Regulators" means, collectively, the Canadian Securities Regulators and the SEC. "SEDAR" means the System for Electronic Document Analysis and Retrieval.
"Shares" means all shares in the capital of the Company, including Common Shares and any other shares in the capital of the Company authorized and/or issued and outstanding from time to time.
"Subscription Price" has the meaning ascribed to such term in the recitals to this Agreement.
"Subsidiaries" has the meaning ascribed to such term in the Act and, with respect to the Company on the date hereof, includes the subsidiaries of the Company set out in Section 3.1(6)(a) of the Disclosure Letter under the heading "Subsidiaries", and "Subsidiary" means any one of them, as the context requires.
"Tax Act" means the Income Tax Act (Canada).
"Tax Returns" means all returns, reports, declarations, elections, notices, filings, forms, statements and other documents (whether in tangible, electronic or other form), including any amendments, schedules, attachments, supplements, appendices and/or exhibits thereto, as applicable, made, prepared, filed or required by a Governmental Authority to be made, prepared or filed by Law in respect of Taxes.
"Taxes" means any and all: (1) taxes, duties, fees, premiums, assessments, imposts, levies, expansion fees and other charges of any kind whatsoever imposed by any Governmental Authority, including all interest, penalties, fines, additions to tax or other additional amounts imposed by any Governmental Authority in respect thereof, and including those levied on, or measured by, or referred to as, income, gross receipts, profits, windfall, royalty, capital, transfer, land transfer, sales, goods and services, harmonized sales, use, value-added, excise, stamp, withholding, business, franchising, property, development, occupancy, employer health, payroll, employment, health, social services, education and social security taxes, all surtaxes, all customs duties and import and export taxes, countervail and anti-dumping, all license, franchise and registration fees and all employment insurance, health insurance and other pension plan premiums or contributions imposed by any Governmental Authority; (2) interest, penalties, fines, additions to tax or other additional amounts imposed by any Governmental Authority on or in respect of amounts of the type described in clause (1) or this clause (2); (3) any liability for the payment of any amounts of the type described in clauses (1) or (2) as a result of being a member of an affiliated, consolidated, combined or unitary group for any period; and (4) any liability for the payment of any amounts of the type described in clauses (1) or (2) as a result of any express or implied obligation to indemnify any other Person or as a result of being a transferee or successor in interest to any Person.
"Trademarks" means all trade or brand names, business names, trademarks, service marks, certification marks, logos, slogans, corporate names, uniform resource locators, domain names, trading styles, commercial symbols and other source and business identifiers, trade dress, distinguishing guises, tag lines, designs and general intangibles of like nature, whether or not registered or the subject of an application for registration and whether or not registrable and all goodwill associated therewith.
"Transaction Agreements" means, collectively, this Agreement, the Collaboration Agreement, the Investor Rights Agreement, and all agreements, certificates and other instruments delivered pursuant hereto and thereto.
"TSX" means the Toronto Stock Exchange.
"TSX Conditional Approval" means the conditional approval of the TSX dated as of February 22, 2021, conditionally approving the listing of the Subscription Shares on the TSX and the other transactions contemplated by this Agreement.
"United States" or "U.S." means the United States of America, its territories and possessions, any state of the United States and the District of Columbia.
"U.S. Exchange Act" means the U.S. Securities Exchange Act of 1934.
"U.S. person" has the meaning ascribed to such term in Rule 902 of Regulation S. "U.S. Securities Act" means the U.S. Securities Act of 1933.
Section 1.2 Gender and Number.
Any reference in this Agreement to gender includes all genders. Words importing the singular number only include the plural and vice versa.
Section 1.3 Headings, etc.
The provision of a Table of Contents, the division of this Agreement into Articles and Sections, and the insertion of headings, are for convenience of reference only and do not affect the interpretation of this Agreement.
Section 1.4 Currency.
All references in this Agreement to dollars or to $ are expressed in Canadian currency unless otherwise specifically indicated.
Section 1.5 Certain Phrases, etc.
In this Agreement, unless otherwise specified:
(1) the words "including", "includes" and "include" mean "including (or includes or include) without limitation";
(2) the phrase "the aggregate of", "the total of", "the sum of" or a phrase of similar meaning means "the aggregate (or total or sum), without duplication, of";
(3) the words "Article", "Section", "Schedule" and "Exhibit" followed by a number mean and refer to the specified Article, Section, Schedule or Exhibit of this Agreement; and
(4) in the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding".
Section 1.6 Knowledge of the Company.
Where any representation or warranty contained in this Agreement is qualified by reference to the "knowledge of the Company", it refers to the actual knowledge of Gregory Engel, Paolo De Luca, Tim Emberg, Helen Martin, Derrick West, Amy Schwalm, Erin McClure and Christy Zhou, in each case, without personal liability and after reasonable inquiry.
Section 1.7 Accounting Terms.
All accounting terms not specifically defined in this Agreement are to be interpreted in accordance with IFRS.
Section 1.8 Schedules.
The Schedules attached to this Agreement form an integral part of this Agreement for all purposes hereof.
Section 1.9 Company Covenants and Agreements.
All covenants or agreements contained in any Transaction Agreement on the part of the Company shall also apply to its Subsidiaries, mutatis mutandis, and each such covenant or agreement shall be construed as a covenant by the Company to cause (to the fullest extent permitted by Law) such Subsidiary to perform or not perform the required action, as applicable, in accordance with the terms of such covenant or agreement, mutatis mutandis.
Section 1.10 References to Persons and Agreements.
Any reference in this Agreement to a Person includes its heirs, administrators, executors, legal representatives, successors and permitted assigns, as applicable. Except as otherwise provided in this Agreement, the term "Agreement" and any reference to this Agreement, or to any other agreement, document or other instrument, includes, and is a reference to, this Agreement or such other agreement, document or other instrument, as the same may have been, or may from time to time be, amended, restated, replaced, supplemented or novated, and includes all schedules hereto.
Section 1.11 Statutes.
Except as otherwise provided in this Agreement, any reference in this Agreement to a statute refers to such statute, and all rules and regulations made thereunder, as the same may have been, or may from time to time be, amended, re-enacted or replaced.
Section 1.12 Non-Business Days.
Whenever payments are to be made, or an action is to be taken, on a day which is not a Business Day, such payment shall be made, or such action shall be taken, on or not later than the next succeeding Business Day.
Section 1.13 No Presumption.
This Agreement is the product of negotiation by the Parties having the assistance of counsel and other advisers. It is the intention of the Parties that neither Party shall be presumed to be the drafter hereof and that this Agreement not be construed more strictly with the regard to one Party than to the other Party.
ARTICLE 2
PURCHASE AND SALE OF SUBSCRIPTION SHARES
Section 2.1 Purchase and Sale of Subscription Shares.
(1) In reliance upon the representations and warranties of the Company set forth in Schedule A, the Purchaser hereby subscribes for, and the Company hereby issues to the Purchaser, the Subscription Shares, free and clear of all Encumbrances other than Encumbrances under (a) Securities Laws and (b) the Investor Rights Agreement.
(2) The Subscription Shares shall be issued contemporaneously herewith to the Purchaser by way of the direct registration system ("DRS") registered in the name of the Purchaser (or in such other name as the Purchaser shall have notified the Company in writing not less than one Business Day prior to the date hereof).
Section 2.2 Subscription Price.
(1) Contemporaneously herewith the Purchaser shall pay or cause to be paid to the Company an amount in cash equal to the Subscription Price by wire transfer of immediately available funds to such account(s) of the Company designated in writing by the Company prior to the date hereof.
Section 2.3 Use of Proceeds and Segregated Bank Account.
(1) Use of Allocated Investment Proceeds - Unless otherwise consented to in writing by the Purchaser in advance (such consent not to be unreasonably withheld or delayed), the Company acknowledges and agrees that: (a) a portion of the proceeds from the Subscription Price equal to the Allocated Investment Proceeds will be used by the Company and/or its Affiliates solely for the purposes of fulfilling their respective obligations in connection with the Product Development Collaboration pursuant to the Collaboration Agreement, as set out in the Collaboration Agreement and the Project Development Collaboration Budget, as applicable, and not for any other purpose; (b) at or immediately following Closing, the Company shall deposit in a segregated bank account of the Company, from the proceeds of the Subscription Price, an amount equal to the Allocated Investment Proceeds; and (c) the Company shall withdraw funds from such segregated bank account only in the agreed amounts, and in accordance with the agreed sequence and timing, set out in the Collaboration Agreement and the Product Development Collaboration Budget, as applicable.
(2) Use of Non-Allocated Investment Proceeds - Unless otherwise consented to in writing by the Purchaser in advance (which consent may be withheld or delayed in the Purchaser's discretion), the Parties acknowledge and agree that the Non-Allocated Investment Proceeds shall be used by the Company for general corporate purposes; provided, that the Non-Allocated Investment Proceeds shall not be used, in whole or in part, for any of the following: (a) the payment of any dividend or other distribution on or in respect of the Shares or any other securities in the capital of the Company; (b) the repurchase, redemption or retraction of Shares or any other securities in the capital of the Company;
(c) the repayment of any Indebtedness of the Company or any of its Subsidiaries; or (d) the payment of bonuses, incentive payments or other similar amounts to directors, officers, members of management, employees or consultants of the Company or any of its Subsidiaries other than in the Ordinary Course.
ARTICLE 3
REPRESENTATION AND WARRANTIES
Section 3.1 Representations and Warranties of the Company.
The Company represents and warrants to the Purchaser as set out in Schedule A as of the date hereof, and acknowledges that the Purchaser and/or its Affiliates, as applicable, is relying on such representations and warranties in connection with entering into the Transaction Agreements and consummating the transactions contemplated thereby.
Section 3.2 Representations and Warranties of the Purchaser.
The Purchaser represents and warrants to the Company as set out in Schedule B as of the date hereof, and acknowledges that the Company and/or its Affiliates, as applicable, is relying on such representations and warranties in connection with entering into the Transaction Agreements and consummating the transactions contemplated thereby.
ARTICLE 4
CLOSING DELIVERIES
Section 4.1 Closing Deliveries.
(1) The Purchaser shall deliver to the Company the following contemporaneously herewith:
(a) Certificate of Status - a certificate of status or equivalent for the Purchaser dated no earlier than one Business day prior to the date hereof; and
(b) Transaction Agreements - the other Transaction Agreements executed by the Purchaser and/or its applicable Affiliates, as applicable.
(2) The Company shall deliver to the Purchaser the following contemporaneously herewith:
(a) Certificate of Status - a certificate of status or equivalent for the Company and each of the Company's Subsidiaries dated no earlier than one Business day prior to the date hereof;
(b) Transaction Agreements - the other Transaction Agreements executed by the Company and/or its applicable Affiliates, as applicable;
(c) DRS Statements - the DRS statements representing the Subscription Shares registered in accordance with Section 2.1(2) against payment by the Purchaser of the Subscription Price payable pursuant to Section 2.2(1);
(d) Transfer Agent Certificate - a certificate from TSX Trust Company, the Company's transfer agent, confirming the issued and outstanding Shares as at the close of business on the Business Day immediately prior to the date hereof;
(e) Third Party Consents, etc. - copies of the consents, waivers, approvals, notices and Authorizations set out in Section 3.1(10)(a) of the Disclosure Letter;
(f) Legal Opinions - opinions from counsel to the Company as to certain corporate Law, Securities Law and Cannabis Law matters; and
(g) Appointment of Initial Purchaser Board Nominees and D&O Insurance - evidence that the initial Purchaser Board Nominees: (i) have been appointed to the Board as contemplated in the Investor Rights Agreement; and (ii) the directors' and officers' insurance policy of the Company and its Subsidiaries remains in full force and effect and the Purchaser Board Nominees are covered thereby.
ARTICLE 5
POST-CLOSING COVENANTS
Section 5.1 Health Canada Security Clearances.
The Company hereby agrees to use commercially reasonable efforts to obtain all such security clearances required by Health Canada in respect of the Purchaser Board Nominees as promptly as practicable; provided, that the Purchaser Board Nominees execute, deliver and complete all necessary documentation and other steps in order to obtain such security clearances, as applicable.
Section 5.2 Credit Agreement Consent.
Provided that the Credit Agreement remains outstanding and is not in the process of being terminated or discharged, the Company hereby agrees to use reasonable commercial efforts to obtain, as promptly as possible and, in any event, on or before May 31, 2021, the written consent of BMO (in its capacity as administrative agent) and the Lenders under the Credit Agreement to release and discharge any Encumbrances which have been granted to BMO (in its capacity as administrative agent) and the Lenders under the Credit Agreement in respect of the PDC Developed Foreground IP (as such term is defined in the Collaboration Agreement) under the terms of the Security (as such term is defined in the Credit Agreement) and to amend or otherwise modify the Credit Agreement to exclude the PDC Developed Foreground IP, the Background IP, the Background IP Licence and the PDC Developed Foreground IP Licence (as each such term is defined in the Collaboration Agreement) from the scope of the Credit Agreement.
ARTICLE 6
SURVIVAL AND INDEMNIFICATION
Section 6.1 Survival of Representations and Warranties.
The representations, warranties and covenants contained in this Agreement and in all certificates and documents delivered pursuant to or contemplated by this Agreement shall survive the Closing and shall terminate at the expiration of 18 months following Closing; provided, however, that (i) the Company Fundamental Representations shall survive indefinitely; (ii) the representations and warranties contained in Section 28 of Schedule A shall survive until 60 days after the date on which the latest applicable limitation period under Law expires with respect to any taxation year that is relevant in determining any liability with respect to those Tax matters.
Section 6.2 Indemnification.
The Purchaser and its Affiliates are relying on the representations and warranties, certificates and covenants contained herein to make the investment in the Subscription Shares contemplated under this Agreement and, subject to the other provisions of this Section 6.2, the Company agrees, as the Purchaser's sole and exclusive remedy (except as otherwise contemplated in this Section 6.2), to indemnify the Purchaser and its Affiliates, and their respective directors, officers, employees, agents and other representatives (collectively, the "Purchaser Indemnified Persons"), against all losses, claims, costs, expenses, damages or liabilities (collectively, "Losses") which any of them may suffer or incur, directly or indirectly, as a result of or arising from a breach of any such representations, warranties, certifications and covenants; provided, that the aggregate liability of the Company for indemnification pursuant to this Section 6.2 shall in no event exceed the Subscription Price. Notwithstanding anything contained in this Section 6.2 or any other provision of this Agreement, the foregoing limitation shall not apply to, and the indemnification contemplated in this Section 6.2 shall not be the sole and exclusive remedy of the Purchaser Indemnified Persons in respect of, any Losses suffered or incurred by any of them as a result of or arising out of the Company's fraud, intentional misrepresentation or willful breach. The calculation of "Losses" and the indemnification provided under this Section 6.2 shall take account of and reflect (to the extent applicable and without restriction): (1) any Losses suffered or incurred directly by the Purchaser Indemnified Persons; and (2) any Losses suffered or incurred indirectly by the Purchaser Indemnified Persons taking into account the ownership interest held by the Purchaser and/or its Affiliates in the Company, including as a result of the indemnification payment being made and consequent diminution in value of the Company.
ARTICLE 7
GENERAL PROVISIONS
Section 7.1 No Obligation to Finance.
Other than the obligation to fund the Subscription Price in accordance with Section 2.2, neither the Purchaser nor any of its Affiliates shall have any obligation to provide any further financing to the Company, its Subsidiaries or any of its or their respective Affiliates, or otherwise to guarantee the fulfillment of any of their respective obligations to any other Person.
Section 7.2 Governing Law and Jurisdiction.
This Agreement shall be governed by, and construed and interpreted in accordance with, the Laws of the Province of Ontario and the federal Laws of Canada applicable therein, without regard to conflict of Laws principles. Each Party irrevocably attorns and submits to the exclusive jurisdiction of the Ontario courts situated in the City of Toronto (and appellate courts therefrom), and waives objection to the venue of any proceeding in such court or that such court provides an inappropriate forum.
Section 7.3 Notices.
(1) Any notice, direction or other communication given regarding the matters contemplated by this Agreement (each, a "Notice") must be in writing, sent by personal delivery, courier or email, and addressed:
(a) to the Company, at:
Organigram Holdings Inc.
Bay Adelaide Centre
1250-333 Bay Street
Toronto, ON, M5H 2R2
Attention: Greg Engel, Chief Executive Officer
Email: greg.engel@organigram.ca
with a copy (which shall not constitute notice) to:
Goodmans LLP
Bay Adelaide Centre - West Tower
333 Bay Street, Suite 3400
Toronto, ON M5H 2S7
Attention: Neill May and Steve Inglis
Email: nmay@goodmans.ca and singlis@goodmans.ca
(b) to the Purchaser, at:
Reynolds 401 North Main Street,
Winston-Salem NC 27101 USA
Attention: John R Whitener
Email: [Redacted]
with a copy (which shall not constitute notice) to:
Herbert Smith Freehills LLP
Exchange House
Primrose Street
London, United Kingdom EC2A 2EG
Attention: Alex Kay
Email: alex.kay@hsf.com
Stikeman Elliott LLP
5300 Commerce Court West
199 Bay Street
Toronto, Ontario M5L 1B9
Attention: Evan Marcus and Colin Burn
Email: emarcus@stikeman.com and cburn@stikeman.com
(2) A Notice is deemed to be given and received on the date of delivery if it is a Business Day and the delivery was made prior to 4:00 p.m. (local time in place of receipt), and otherwise on the next Business Day. A Party may change its address for service from time to time by providing a Notice in accordance with the foregoing. Any subsequent Notice must be sent to the Party at its changed address. Any element of a Party's address that is not specifically changed in a Notice will be assumed not to be changed.
Section 7.4 Time of the Essence.
Time is of the essence in this Agreement.
Section 7.5 Expenses.
Except as otherwise expressly provided in this Agreement or any other Transaction Agreement, each Party will pay for its own costs and expenses incurred in connection with this Agreement and the other Transaction Agreements, and the transactions contemplated hereby and thereby. The fees and expenses referred to in this Section 7.5 are those which are incurred in connection with the negotiation, preparation, execution and performance of this Agreement and the other Transaction Agreements, and the transactions contemplated hereby and thereby, including the fees and expenses of legal counsel, accountants and other advisors.
Section 7.6 Severability.
If any provision of this Agreement is determined to be illegal, invalid or unenforceable by an arbitrator or any court of competent jurisdiction, that provision will be severed from this Agreement, and the remaining provisions will remain in full force and effect. Upon any such determination, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible.
Section 7.7 Entire Agreement.
This Agreement and the other Transaction Agreements constitute the entire agreement among the Parties and their respective Affiliates with respect to the transactions contemplated hereby and thereby, and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties and their respective Affiliates with respect to such transactions. There are no representations, warranties, covenants, conditions or other agreements, express or implied, collateral, statutory or otherwise, among the Parties in connection with the subject matter of this Agreement and the other Transaction Agreements, except as specifically set forth herein and therein. The Parties have not relied and are not relying on any other information, discussion or understanding in entering into and completing the transactions contemplated by this Agreement and the other Transaction Agreements.
Section 7.8 Successors and Assigns.
(1) This Agreement becomes effective only when executed by the Parties. After that time, it is binding on and enures to the benefit of the Parties and their respective successors and permitted assigns, as applicable.
(2) Neither this Agreement, nor any of the rights or obligations hereunder, may be assigned or transferred, in whole or in part, by the Company without the prior written consent of the Purchaser. The Purchaser may assign this Agreement, or any of its rights and/or obligations hereunder, to any of its Affiliates; provided, that the Purchaser shall remain responsible for the covenants, agreements and obligations of the Purchaser under this Agreement notwithstanding any such assignment.
Section 7.9 Third Party Beneficiaries.
Except as expressly provided in this Agreement, the Parties intend that: (1) this Agreement will not benefit or create any right or cause of action in favour of any Person other than the Parties; and (2) no Person other than the Parties shall be entitled to rely on the provisions of this Agreement in any action, suit, proceeding, hearing or other forum. The Parties reserve their right to vary or rescind the rights granted by or under this Agreement to any Person that is not a Party, at any time and in any way whatsoever, without notice to or consent of that Person.
Section 7.10 Amendments.
This Agreement may only be amended, supplemented or otherwise modified by written agreement signed by both Parties.
Section 7.11 Waiver.
No waiver of any of the provisions of this Agreement will constitute a waiver of any other provision (whether or not similar). No waiver will be binding unless executed in writing by the Party to be bound by the waiver. A Party's failure or delay in exercising any right under this Agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a Party from any other or further exercise of that right or the exercise of any other right.
Section 7.12 Further Assurances.
Each Party shall promptly do, make, execute, deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the other Party may reasonably require from time to time for the purpose of giving effect to this Agreement and the other Transaction Agreements, and the transactions contemplated hereby and thereby, and shall use commercially reasonable efforts, and take all such steps as may be reasonably within its power, to implement to their full extent the provisions of this Agreement and the other Transaction Agreements in accordance with the terms hereof and thereof.
Section 7.13 Confidentiality.
(1) The Purchaser (and each of its Affiliates that receives Confidential Information of the Company and/or any of its Subsidiaries), on the one hand, and the Company (and each of its Affiliates that receives Confidential Information of the Purchaser and/or any of its Affiliates), on the other hand, shall keep confidential and not disclose such Confidential Information in any manner whatsoever, in whole or in part, except as permitted by this Section 7.13.
(2) Notwithstanding Section 7.13(1):
(a) the Purchaser may disclose Confidential Information to (i) each of its Affiliates and (ii) its and their respective Representatives; provided, that prior to making any disclosure to a Representative, each such Representative has been informed of the confidential nature of the Confidential Information and has been directed to hold the Confidential Information in accordance with this Section 7.13;
(b) the Company may disclose Confidential Information to (i) each of its Affiliates and (ii) its and their respective Representatives; provided, that prior to making any disclosure to a Representative, each such Representative has been informed of the confidential nature of the Confidential Information and has been directed to hold the Confidential Information in accordance with this Section 7.13; and
(c) the Purchaser (and each of its Affiliates that receives Confidential Information of the Company and/or any of its Subsidiaries), on the one hand, and the Company (and each of its Affiliates that receives Confidential Information of the Purchaser and/or any of its Affiliates), on the other hand, shall use commercially reasonable efforts to cause each of its Representatives that receives Confidential Information to observe the terms of this Section 7.13 in respect thereof.
(3) The disclosure restrictions contained in Section 7.13(1) do not apply to disclosure that is required by Law, any Order or any other legally binding document discovery requests. Prior to making any such disclosure, the applicable Party that received Confidential Information (or which Party's Affiliate and/or Representative received Confidential Information, as applicable) shall, to the extent not prohibited by the Law, Order or legally binding request: (a) give the other Party prompt written notice of the requirement and the proposed content of any disclosure; and (b) at the other Party's request and expense, co- operate with the other Party in limiting the extent of the disclosure and in obtaining an appropriate protective order or pursuing such legal action, remedy or assurance as the other Party deems necessary to preserve the confidentiality of the Confidential Information. If a protective order or other remedy is not obtained or the other Party fails to waive compliance with Section 7.13(1), the applicable Party that received Confidential Information (or which Party's Affiliate and/or Representative received Confidential Information, as applicable) may disclose only that portion of the Confidential Information that it is required to disclose and exercise commercially reasonable efforts to obtain reliable assurance that confidential treatment is given to the Confidential Information disclosed.
(4) For the avoidance of doubt, the disclosure restrictions contained in Section 7.13(1) do not apply to disclosure that is made by a Party with the prior written consent of the other Party.
Section 7.14 Public Notices and Press Releases.
The Company agrees to cooperate in the preparation of presentations, if any, to the Purchaser's Affiliates regarding the transactions contemplated by this Agreement. Neither Party shall: (1) issue any press release or otherwise make public announcements with respect to this Agreement or the other Transaction Agreements, or the transactions contemplated hereby or thereby, without the prior written consent of the other Party (which consent shall not be unreasonably withheld or delayed); or (2) make any regulatory filing with any Governmental Authority with respect thereto without prior consultation with the other Party; provided, that, the Parties' obligations under this section shall be subject to each Party's overriding obligation to make any disclosure or regulatory filing required under Laws, and the Party making such requisite disclosure or regulatory filing shall use all commercially reasonable efforts to give prior oral and written notice to the other Party and a reasonable opportunity to review and comment on the requisite disclosure or regulatory filing before it is made.
Section 7.15 Counterparts.
This Agreement may be executed (including by electronic means) in any number of counterparts, each of which (including any electronic transmission of an executed signature page), is deemed to be an original, and such counterparts together constitute one and the same instrument.
[Signature page follows.]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the date first written above.
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ORGANIGRAM HOLDINGS INC.
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By: |
/s/ "Greg Engel" |
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Name: Greg Engel |
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Title: Chief Executive Officer |
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BT DE INVESTMENTS INC.
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By: |
/s/ "John R. Whitener" |
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Name: John R. Whitener |
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Title: Treasurer |
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Schedule A
Representations and Warranties of the Company
(1) Incorporation and Organizational Matters. The Company and each of the Subsidiaries has been duly incorporated or otherwise organized and is validly existing as a corporation under the Laws of the jurisdiction in which it was incorporated, or otherwise organized, as the case may be, and no steps or proceedings have been taken by any Person, voluntary or otherwise, requiring or authorizing the dissolution or winding up of the Company or any of the Subsidiaries.
(2) Corporate Authorization, Qualification and Power.
(a) The Company has all requisite corporate power and authority and has taken all corporate action necessary in order to execute, deliver and perform under this Agreement and each of the Transaction Agreements to which it is or will be a party and to consummate the transactions contemplated hereby and thereby.
(b) The Company and each of the Subsidiaries is duly qualified to carry on its business in each jurisdiction in which the conduct of its business or the ownership, leasing or operation of its property and assets requires such qualification (except where any failure would not have a Material Adverse Effect) and has all requisite corporate power and authority to conduct its business and to own, lease and operate its properties and assets and, if applicable, to execute, deliver and perform its obligations under the Transaction Agreements.
(c) Each of the Company's Subsidiaries has all requisite corporate power and authority to execute, deliver and perform under each of the Transaction Agreements to which it is or will be a party and to consummate the transactions contemplated thereby.
(3) Execution and Binding Obligation.
(a) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to Bankruptcy Laws, and will not violate or conflict with the constating documents of the Company or the terms of any restriction or Contract to which the Company is subject.
(b) Each of the Transaction Agreements has been or will be duly authorized, executed and delivered by the Company and each of the Subsidiaries that is or will be a party thereto and constitutes (or shall when executed, constitute) a legal, valid and binding obligation of the Company and each of its Subsidiaries enforceable against each of them in accordance with its terms, subject to Bankruptcy Laws, and will not violate or conflict with the constating documents of the Company and each of the Subsidiaries or the terms of any material restriction or material Contract to which the Company or any Subsidiary is subject.
(4) Authorized and Issued Capital.
(a) The authorized share capital of the Company is as set out in Section 3.1(4)(a) of the Disclosure Letter. Section 3.1(4)(a) of the Disclosure Letter sets out, as of the date hereof, the number of issued and outstanding: (i) Shares; and (ii) (A) Company Warrants, (B) Company Options, (C) Company RSUs, (D) Company DSUs and (E) Company PSUs, in each case, setting forth the number of Shares subject to each such Company Option, Company Warrant, Company RSU, Company PSU and Company DSU. Except as disclosed in Section 3.1(4)(a) of the Disclosure Letter, the Company has no other outstanding agreement, subscription, warrant, option, right or commitment or other right or privilege (whether by law, pre-emptive or contractual), nor has it granted any right or privilege capable of becoming an agreement, subscription, warrant, option, right or commitment, obligating it to issue or sell any Shares or other equity or voting securities, including any security or obligation of any kind convertible in to exchangeable or exercisable for any Shares or other equity or voting security of the Company or any of its Subsidiaries.
(b) There are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any Shares.
(c) Each (i) Company Option, Company RSU, Company PSU and Company DSU was granted in compliance with all Laws and all the terms and conditions of the Equity Incentive Plans pursuant to which it was issued, (ii) Company Option has an exercise or reference price per Common Share equal to or greater than the fair market value of a Common Share on the date of such grant, (iii) Company Option, Company RSU, Company PSU and Company DSU has a grant date identical to the date on which the Board actually awarded such Company Option and (iv) Company Option qualifies for the Tax and accounting treatment afforded to such Company Option in the Company's Tax Returns.
(d) All outstanding Shares and other securities of the Company have been issued in compliance with all Laws, including Securities Laws.
(5) No Bankruptcy. No Bankruptcy Event has occurred with respect to the Company or any of its Subsidiaries. The Company and its Subsidiaries has sufficient working capital to satisfy its obligations under this Agreement and has sufficient capital to satisfy the "going concern" test under IFRS.
(6) Organizational Structure and Ownership of Subsidiaries.
(a) Section 3.1(6)(a) of the Disclosure Letter sets forth: (i) each of the Company's Subsidiaries; (ii) whether or not each such Subsidiary is a wholly-owned Subsidiary; (iii) the jurisdiction of organization of each Subsidiary (and, if different, its jurisdiction of Tax residence); (iv) the holders of the equity interests in each Subsidiary; (v) for each non-wholly owned Subsidiary, (A) the percentage of the Company's ownership interest, direct or indirect, and the number and type of shares or other securities owned by the Company, directly or indirectly, in each such Subsidiary, and (B) the percentage of such other Person or Persons' ownership interest and the number and type of shares or other securities owned by such other Person or Persons in each such Subsidiary and the name of such other Person or Persons.
(b) Section 3.1(6)(b) of the Disclosure Letter sets forth the Company's or its Subsidiaries' shares, equity interest or other direct or indirect ownership interest in any Person that is not a Subsidiary of the Company.
(c) All of the outstanding Shares or other securities of the Company (including, for the avoidance of doubt, the Common Shares), have been duly authorized and are validly issued, fully paid and non-assessable and free and clear of any Encumbrance. Upon the issuance of any Shares in accordance with the terms of the Equity Incentive Plans in effect on the date of this Agreement or as otherwise expressly permitted by this Agreement, such Shares will be duly authorized, validly issued, fully paid and non-assessable and free and clear of any Encumbrance. Each of the outstanding shares or other securities of each of the Company's Subsidiaries is duly authorized, validly issued, fully paid and non-assessable and owned by the Company or by a wholly-owned Subsidiary of the Company, free and clear of any Encumbrance other than Permitted Encumbrances.
(d) Except as disclosed in Section 3.1(6)(a) of the Disclosure Letter, neither the Company nor any of its Subsidiaries has any other outstanding Contract, subscription, warrant, option, right or commitment, or other right or privilege (whether by law, pre-emptive or contractual), nor has it granted any right or privilege capable of becoming a Contract, subscription, warrant, option, right or commitment, obligating it to issue or sell any Shares or other equity or voting securities of the Company or any of the Company's Subsidiaries, including any security or obligation of any kind convertible into or exchangeable or exercisable for any Shares or other equity or voting security of the Company or any of its Subsidiaries.
(7) Shareholders' and Similar Agreements. Neither the Company nor any of its Subsidiaries is subject to, or affected by, any unanimous shareholders agreement involving a Person other than the Company or any of its Subsidiaries and is not a party to any shareholder, pooling, voting, or other similar arrangement or agreement (other than the Investment Agreement) relating to the ownership or voting of any of the securities of the Company or of any of its Subsidiaries other than as between the Company and any of its Subsidiaries or pursuant to which any Person other than the Company or any of its Subsidiaries may have any right or claim in connection with any existing or past equity interest in the Company or in any of its Subsidiaries.
(8) No Prospectus.
(a) Assuming the accuracy of the representations of the Purchaser in Schedule B, the offer and sale of the Subscription Shares pursuant to this Agreement is exempt from the prospectus delivery requirements of Securities Laws and no registration of the Subscription Shares under the U.S. Securities Act is required in connection with the offer and sale of the Subscription Shares in the manner contemplated by this Agreement.
(b) The Company has complied in all respects with the requirements of all Laws in relation to the issue of the Subscription Shares, and, forthwith after Closing, the Company shall file such forms and documents as may be required under Securities Laws, including a Form 45-106F1 as prescribed by NI 45-106, if applicable.
(9) Subscription Shares Issued as Fully Paid. The Subscription Shares have been duly authorized, created and reserved for issuance and, when issued, delivered and paid for in full, will be validly issued and fully paid Common Shares free and clear of all Encumbrances.
(10) Consents, etc.
(a) No material consent, waiver, approval, notice or Authorization of, filing with, or notification to, any Governmental Authority or any other Person, as applicable, is required for the execution, delivery and performance by the Company or any of its Subsidiaries of the Transaction Agreements or for the consummation of the transactions contemplated thereby except as set out in Section 3.1(10)(a) of the Disclosure Letter, all of which have been obtained, made or given, as applicable, as of the date hereof.
(b) As of the date hereof, the Board has authorized the entering into of this Agreement and the performance by the Company of its obligations under this Agreement, and no action has been taken to amend or supersede such determinations, resolutions or authorizations.
(11) No Conflict.
(a) Each of the execution and delivery of this Agreement and the other Transaction Agreements, the performance by the Company of its obligations hereunder and thereunder, the sale and issue of the Subscription Shares hereunder by the Company and the consummation of the transactions contemplated in this Agreement and the other Transaction Agreements, (i) do not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), (A) any Law applicable to the Company or the Subsidiaries; (B) the articles, by-laws or resolutions of the directors or shareholders of the Company or the Subsidiaries;
(C) any Contract to which the Company or any of the Subsidiaries is a party or by which any of them is bound except where such conflict, breach, violation or default would not result in a Material Adverse Effect; or (D) any judgment, decree or Order binding the Company or the Subsidiaries or the property or assets thereof; and (ii) do not affect the rights, duties and obligations of any parties to a Contract, nor give a party the right to terminate the Contract, by virtue of the application of terms, provisions or conditions in the Contract, except where those rights, duties or obligations, or rights to terminate, are affected in a manner that would not result in a Material Adverse Effect.
(12) Compliance with Laws and Cannabis Authorizations.
(a) The Company, each of the Subsidiaries: (i) is and at all relevant times has been in compliance with all Laws, in all material respects, including all Cannabis Laws which are applicable to the Company's and the Subsidiaries' business, affairs and operations, and, in the case of the Company, with the by-laws, rules and regulations of the TSX and NASDAQ; (ii) has not received any correspondence or notice from Health Canada or any other Governmental Authority alleging or asserting any material non-compliance with Laws, including Cannabis Laws; (iii) possesses all Cannabis Authorizations required to conduct the business, affairs and operations of the Company and its Subsidiaries as now operated and such Cannabis Authorizations are valid and in full force and effect and the Company and the Subsidiaries are not in violation of any material term of any such Cannabis Authorization in any material respect; (iv) is in material compliance with the terms and conditions of all Cannabis Authorizations, and have made all notifications, certifications and filings with all Governmental Authorities in connection with the Cannabis Authorizations necessary to keep the Cannabis Authorizations in good standing; (v) has not received notice of any pending or threatened Claim, suit, proceeding, charge, hearing, enforcement, audit, investigation, arbitration or other action from any Governmental Authority or third party alleging that any operation or activity of the Company and the Subsidiaries or any of their directors, officers and/or employees is in violation of any Laws or Cannabis Authorizations, or asserting any noncompliance with any Laws or Cannabis Authorizations, that could reasonably be expected to materially and adversely affect the Company, and has no knowledge that any such Governmental Authority or third party is considering or would have reasonable grounds to consider any such Claim, suit, proceeding, charge, hearing, enforcement, audit, investigation, arbitration or other action; (vi) has not received notice that any Governmental Authority has taken, is taking, or intends to take action to limit, suspend, modify or revoke or to not renew any Cannabis Authorizations, and has no knowledge or reason to believe that any such Governmental Authority is considering taking or would have reasonable grounds to take such action, or that the Company or any of its Subsidiaries does not hold a required Cannabis Authorization; and (vii) has, or has had on its behalf, filed, declared, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, Claims, submissions and supplements or amendments as required by any Laws, including Cannabis Laws, or Cannabis Authorizations to keep the Authorizations in good standing and that all such reports, documents, forms, notices, applications, records, Claims, submissions and supplements or amendments were complete and correct in all material respects on the date filed (or were corrected or supplemented by a subsequent submission).
(b) All Cannabis and Cannabis products sold by the Company and its Subsidiaries or in inventory at the Company or its Subsidiaries: (i) meets the applicable specifications for the product; (ii) is fit for the purpose for which it is intended by the Company or its Subsidiaries, and of merchantable quality; (iii) has been cultivated, processed, packaged, labelled, imported, tested, stored, transported and delivered in accordance with the Authorizations and all Laws; (iv) is not adulterated, tainted or contaminated and does not contain any substance not permitted by Laws; and (v) has been cultivated, processed, packaged, labelled, imported, tested, stored and transported in facilities authorized by the applicable Authorization in accordance with the terms thereof, except in each case where a failure would not reasonably be expected to result in a Material Adverse Effect. All of the marketing and promotion activities of the Company and its Subsidiaries relating to its Cannabis and Cannabis products, within the past three years, complies with all Laws in all material respects.
(c) Except as disclosed Section 3.1(12)(c) of the Disclosure Letter, and except as would not, individually or in the aggregate, have a Material Adverse Effect, neither the Company nor any Subsidiary has ever received any notice or communication from any customer or Governmental Authority alleging a material defect, any issue requiring a withdrawal, recall or quarantine of product (whether voluntary, required or otherwise) or claim in respect of any products supplied or sold by the Company or any Subsidiary to a customer and, to the Company's knowledge, there are no circumstances that would give rise to any reports, recalls, public disclosure, announcements or customer communications that are required to be made by the Company or any Subsidiary in respect of any products supplied or sold by any of them.
(d) The Company and the Subsidiaries have only carried on business, affairs or operations or maintained any activities in Canada, Israel, Australia or Germany and only to the extent such business, affairs or operations or activities are legal in such jurisdictions and have not engaged in the production, cultivation, marketing, distribution or sale of Cannabis or any products derived from or intended to be used in connection with Cannabis or services intended to relate to Cannabis in the United States or any other jurisdictions to the extent such activities remain prohibited under Law.
(e) The Company and each of the Subsidiaries has implemented, maintains, regularly audits (as required by the terms of such policies and programs) and complies in all material respects with internal compliance policies and programs, including with respect to governance matters, and those designed to detect and prevent violations of any Laws, including Anti-Corruption Laws, the Cannabis Act and all other Laws related to the Cannabis industry, periodically reviews and updates such internal compliance policies and programs to account for any changes in Laws and/or standards applicable to the Company's and the Subsidiaries' business, affairs and operations, as needed, employs or engages internal personnel and third party consultants to perform routine audits to test the effectiveness of the Company's and the Subsidiaries' internal compliance policies and programs, and processes and controls related thereto. Except as disclosed in Section 3.1(12)(e) of the Disclosure Letter, all directors, officers, internal personnel and third party consultants of the Company and any Subsidiary have, where reasonably required by the position and services rendered by such Persons, sufficient knowledge of Laws relating to Cannabis which are applicable to the Company's and the Subsidiaries' business, affairs and operations (including to the extent applicable, the Cannabis Act and all other Laws applicable to the Company's and the Subsidiaries' business, affairs and operations and the Cannabis industry) and all such Persons have all qualifications, including security clearances, if required by the Cannabis Act, training, experience and technical knowledge required by Laws. The Company has ensured its employees responsible for the Company's or the Subsidiaries' internal compliance programs have sufficient training including ensuring that, where reasonably required by the position and services rendered by such Persons, they are adequately informed: (i) to the extent applicable, the Cannabis Act and all other Laws applicable to the Company's and the Subsidiaries business, operations and affairs and the Cannabis industry, and any changes thereto; and (ii) of the Company's and the Subsidiaries' internal compliance programs and controls related thereto.
(f) Each of the Company and its Subsidiaries' facilities used for the cultivation, processing production, packaging and labelling of Cannabis or related products complies in all material respects with applicable good production and/or manufacturing practices, processes, standards and procedures as required by Governmental Authorities and Cannabis Laws, including the Cannabis Authorizations.
(g) Each individual employed by or associated with the Company and its Subsidiaries that is required to hold security clearance under applicable Cannabis Laws in order to maintain the Cannabis Authorizations holds, or has applied for, such clearance. For any such application pending, the Company and such individual are complying with applicable guidance from the Governmental Authorities in connection with such individual's activities at the Company and its Subsidiaries. Neither the Company nor any Subsidiary is aware of any material circumstance that would negatively affect the granting of such security clearances.
(h) The transactions contemplated by the Transaction Agreements will not have any adverse impact on the Cannabis Authorizations or require the Company, any Subsidiary or any entity in which the Company has an interest to obtain any new Cannabis Authorization other than security clearances related to any proposed director nominees nominated by the Purchaser.
(13) Money Laundering. The operations of the Company and each of its Subsidiaries are, and have been since January 1, 2018, conducted in compliance in all respects with all applicable financial recordkeeping and reporting requirements and money laundering Laws and the rules and regulations thereunder and any related or similar Laws, rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority relating to money laundering (collectively, "Money Laundering Laws"), and no action, suit or proceeding by or before any court or Governmental Authority involving the Company and any of its Subsidiaries with respect to Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(14) Corrupt Practices.
(a) Neither the Company nor any of its Subsidiaries and/or its or their respective Representatives in each case whilst acting on behalf of the Company or any of its Subsidiaries has committed a Business Sustainability Breach.
(b) Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any of its or their Representatives has been investigated (or is being investigated or is subject to a pending or threatened investigation) or is involved in an investigation (as a witness or suspect) in relation to an actual or alleged Business Sustainability Breach by any Governmental Authority or any customer or supplier, or has admitted to, or been found by a court in any jurisdiction to have engaged in, any Business Sustainability Breach, or been debarred from bidding for any contract or business, and to the knowledge of the Company, there are no circumstances which are likely to give rise to any such investigation, admission, finding or disbarment.
(c) Neither the Company nor any of its Subsidiaries has conducted (or is conducting) an internal investigation in relation to any allegations in respect of Business Sustainability Breach and no Representative of the Company or any of its Subsidiaries has reported a violation or suspected violation in respect of any such Business Sustainability Breach to the Company.
(d) The Company and each of its Subsidiaries has conducted due diligence prior to acquiring any business or company, or has conducted post-acquisition due diligence, in either case which would be adequate to seek to identify any Business Sustainability Breach previously committed by the acquired business or company. Any issues identified by such due diligence have been fully investigated and disclosed to the Purchaser together with sufficient information to enable the Purchaser to assess the business and legal risks associated with such Business Sustainability Breach.
(e) Due diligence has been conducted prior to the recruitment, hiring or appointment of any Representative of the Company and each of its Subsidiaries, which would be adequate to seek to identify any Business Sustainability Breach committed by those individuals or entities.
(f) All officers, employees and agents and representatives of the Company and each of its Subsidiaries have been given adequate training or have adequate knowledge of Anti-Corruption Laws and the Human Trafficking Laws in relation to business conduct and ethics.
(15) Sanctions. None of the Company, its Subsidiaries nor any of its or their respective directors or officers or employees (a) is or has been targeted with any Sanctions; (b) is violating or has violated any applicable Sanctions; or (c) is conducting or has conducted any activities (i) targeted by Sanctions, (ii) with or for the benefit of any person targeted directly or indirectly by Sanctions, or (iii) in or with any person in any Sanctioned Country.
(16) Public Disclosure, Securities Law and TSX / NASDAQ Matters.
(i) Upon issuance of the Subscription Shares, the Subscription Shares will represent 19.9% of the issued and outstanding Shares in the capital of the Company as of the date hereof.
(j) The Company is a reporting issuer in each of the Qualifying Jurisdictions and in the United States and is not in default in any material respect under the Securities Laws, is not on the list of defaulting issuers maintained by the applicable Securities Regulators, and has not taken any action to cease to be a reporting issuer in any of those Qualifying Jurisdictions or the United States or received notification from any Securities Regulator seeking to revoke the reporting issuer status of the Company. The Company is not in default of any requirement of Securities Laws or the applicable rules and requirements of the TSX or NASDAQ.
(k) The Company is in compliance in all material respects with its timely and continuous disclosure obligations under all Securities Laws and the policies, rules and regulations of the TSX and NASDAQ and, without limiting the generality of the foregoing, there is no material fact, and there has not occurred any material change (actual, anticipated, contemplated, threatened, financial or otherwise), relating to the assets, liabilities (contingent or otherwise), business, affairs, operations, prospects, capital or control of the Company and the Subsidiaries, taken as a whole, which has not been publicly disclosed on a non-confidential basis in accordance with the requirements of Securities Laws and the policies, rules and regulations of the TSX and NASDAQ, and, except as may have been corrected by subsequent disclosure, all the statements set forth in all documents publicly filed by or on behalf of the Company were true, correct, and complete in all material respects and did not contain any Misrepresentation as of the date of such statements and the Company has not filed any confidential material change reports which remain confidential.
(l) Each of the documents filed or furnished as part of the Disclosure Record since January 1, 2018 and prior to the execution and delivery of this Agreement has complied in all material respects with the guidance set out in Staff Notice 51-357 of the Canadian Securities Regulators, if applicable.
(m) TSX Trust Company of Canada, at its principal office in Toronto, Ontario, has been duly appointed as the registrar and transfer agent of the Company with respect to the Shares.
(n) The Company has not withheld any material facts relating to the Company or any of the Subsidiaries.
(o) The Company has not otherwise completed any "significant acquisition" or "significant disposition", nor are there any "probable acquisitions" (as such terms are used in NI 44-101 and Form 44-101F1) that would require the filing of a business acquisition report pursuant to the Securities Laws of the Qualifying Jurisdictions other than those that are part of the Disclosure Record.
(p) No Order, ruling or determination having the effect of suspending the sale or ceasing the trading in any securities of the Company has been issued by any Governmental Authority and is continuing in effect and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are pending, contemplated or threatened by any Governmental Authority.
(q) The Common Shares are listed and posted for trading on the TSX and NASDAQ.
(r) The TSX Conditional Approval has been obtained by the Company and the Company has completed the NASDAQ Notification. The conditions set forth in the TSX Conditional Approval and any conditions imposed by NASDAQ in relation to the NASDAQ Notification are usual and customary for a transaction of this nature. Subject to the satisfaction of the conditions set forth in the TSX Conditional Approval and any conditions imposed as part of the NASDAQ Notification, the Subscription Shares shall be duly approved for listing and trading on the TSX and NASDAQ.
(17) Financial Statements.
(s) The Financial Statements (i) have been prepared in accordance with IFRS, applied on a consistent basis throughout the periods specified, except as may be expressly stated in the notes thereto, (ii) contain no misrepresentations (within the meaning of Securities Laws), (iii) present fairly, in all material respects, the financial condition of the Company on a consolidated basis as at such dates and the financial performance and cash flows of the Company on a consolidated basis for the periods then ended, (iv) contain and reflect adequate provisions or allowance for all reasonably anticipated liabilities, expenses and losses of the Company on a consolidated basis that are required to be disclosed in the Financial Statements and (v) other than as disclosed in the Financial Statements, there has been no material change in accounting policies or practices of the Company since February 29, 2020. There are no material liabilities of the Company or any Subsidiary whether direct, indirect, absolute, contingent or otherwise required to be disclosed in the Financial Statements which are not disclosed or reflected in the Financial Statements.
(t) The financial books, records and accounts of the Company and each of its Subsidiaries in all material respects have been maintained in accordance with IFRS or the accounting principles generally accepted in the country of domicile of each such entity on a basis consistent with prior years.
(18) Auditor Independence. KPMG LLP is independent with respect to the Company within the Chartered Professional Accountants of Ontario CPA Code of Professional Conduct, is registered with the Canadian Public Accountability Board and is an independent registered public accounting firm within the meaning of Securities Laws and the Public Company Accounting Oversight Board (United States). No "reportable event" (within the meaning of NI 51-102) has occurred with such accountants with respect to audits of the Company, its Subsidiaries or its predecessors.
(19) Disclosure Controls and Internal Controls over Financial Reporting.
(a) Except as disclosed in Section 3.1(19)(a) of the Disclosure Letter or in the Disclosure Record, the Company and its Subsidiaries maintain a system of internal accounting and other controls sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with IFRS and that: (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company and the Subsidiaries; (ii) are designed to provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with IFRS; (iii) are designed to provide reasonable assurance that receipts and expenditures of the Company and the Subsidiaries are being made only in accordance with authorizations of management and directors of the Company; and (iv) are designed to provide reasonable assurance regarding prevention or timely detection of an unauthorized acquisition, use or disposition of the assets of the Company and the Subsidiaries that could have a material effect on the Financial Statements. The Company believes that the Company's internal control over financial reporting (as such term is defined under Securities Laws) is effective. Since the end of the Company's most recent fiscal year, there have been no new material deficiencies or weaknesses in the Company's internal control over financial reporting (whether or not remediated) and there have been no changes in the Company's internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company's internal control over financial reporting. The Company is in compliance with the certification requirements under NI 52-109 with respect to the Company's annual and interim filings with the Canadian Securities Regulators.
(b) The Company has established and maintains disclosure controls and procedures (as defined in Securities Laws) that: (i) are designed to provide reasonable assurance that information required to be disclosed by the Company in its annual filings, interim filings or other reports filed or submitted by it under Securities Laws is recorded, processed, summarized and reported within the time periods specified in Securities Laws, and include controls and procedures designed to ensure that information required to be disclosed by the Company in its annual filings, interim filings or other reports filed or submitted under Securities Laws is accumulated and communicated to the Company's management, including its certifying officers, as appropriate to allow timely decisions regarding required disclosure; (ii) have been evaluated by management of the Company for effectiveness as of the end of the Company's most recent fiscal quarter; and (iii) are effective in all material respects to perform the functions for which they were established.
(20) Absence of Material Changes.
(a) Since August 31, 2020, the Company and its Subsidiaries have conducted their respective businesses in all material respects in the Ordinary Course.
(b) Since August 31, 2020, there has not occurred a Material Adverse Effect.
(21) Material Contracts.
(a) Except as set forth in Section 3.1(21)(a) of the Disclosure Letter, as of the date of this Agreement, neither the Company, any of its Subsidiaries is a party to or bound by, without duplication:
(i) other than Contracts with employees, any Contract that is reasonably expected to require, during the remaining term of such Contract, either (A) annual payments to or from the Company and its Subsidiaries of more than
$1,000,000 or (B) aggregate payments to or from the Company and its Subsidiaries of more than $2,500,000;
(ii) any Contract relating to Indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $2,500,000;
(iii) any Contract related to any settlement of any material Claims;
(iv) any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to the Company or any of its Subsidiaries or in which the Company or any of its Subsidiaries owns more than a 9.9% voting or economic interest, or any interest valued at more than $2,500,000 without regard to percentage voting or economic interest, except for any such agreements or arrangements solely between the Company and its wholly-owned Subsidiaries or solely among the Company's wholly-owned Subsidiaries;
(v) any Contract relating to the, direct or indirect, acquisition or disposition of any assets or business (whether by merger, sale of stock, sale of assets or otherwise), excluding such Contracts that are in the Ordinary Course;
(vi) any Contract that contains a put, call, right of first refusal, right of first offer or similar right or obligation or any other obligation pursuant to which the Company or any of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests or assets of any Person;
(vii) any Contract that prohibits the payment of dividends or distributions in respect of the shares, membership interests, partnership interests or other equity interests of the Company or any of its Subsidiaries, the pledging of the shares, membership interests, partnership interests or other equity interests of the Company or any of its Subsidiaries or the incurrence of Indebtedness by the Company or any of its Subsidiaries;
(viii) any Contract that (A) restricts the ability of the Company or any of its Affiliates or, at or after the Closing, would restrict the Purchaser or any of its Affiliates from (I) engaging in any business or competing in any business with any Person, or (II) operating its business in any manner or location, or
(B) would require the disposition of any material assets or line of business of the Company or its Affiliates or acquisition of any material assets or line of business of any Person or, at or after the Closing, the Purchaser or any of its Affiliates;
(ix) any Contract that contains an exclusivity, "most favoured nation" or other similar provision applicable to the Company, any of its Subsidiaries, or any of its or their respective businesses, assets, products, services or Intellectual Property, or any other provision that restricts the ability of the Company or any of its Subsidiaries to deal as it determines in its discretion with its or their respective businesses, assets, products, services or Intellectual Property (including the sale or licence thereof, as applicable); and
(x) any other Contract or group of related Contracts not otherwise described in the foregoing clauses (i) through (x) of this Section (21)(a) that if terminated or subject to a breach or default by any party thereto, would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect (together with each Contract constituting any of the foregoing types of Contracts described in clauses (i) through (x) of this Section (21)(a), a "Material Contract").
(b) A correct and complete copy of each Material Contract (including, for the avoidance of doubt, any amendments or supplements thereto) has been made available to the Purchaser.
(c) Except for expirations in the Ordinary Course and in accordance with the terms of such Material Contract, each Material Contract is valid and binding on the Company and/or one or more of its Subsidiaries, as the case may be, and, to the knowledge of the Company, each other party thereto, and is in full force and effect, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) As of the date of this Agreement, there is no breach or violation of or default under any Material Contract by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto, and no event has occurred that with or without notice, lapse of time or both, would constitute or result in a breach or violation of or default under any such Contracts by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto or would permit or cause the termination or modification thereof or acceleration or creation of any right or obligation thereunder, in each case, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(22) Non-Arm's Length Transactions. Neither the Company nor any of its Subsidiaries is indebted to any director, officer, or employee of the Company or any of its Subsidiaries or any of their respective Affiliates or associates (except for amounts due in the Ordinary Course or pursuant to any Law or Contract such as salaries, bonuses, director's fees or the reimbursement of Ordinary Course expenses). There are no Contracts (other than employment arrangements or other terms of engagement) with, or advances, loans, guarantees, liabilities or other obligations to, on behalf or for the benefit of, any officer or director of the Company or any of its Subsidiaries, or any of their respective Affiliates or associates.
(23) Employment Matters.
(a) Except as set out in Section 3.1(23)(a) of the Disclosure Letter, there is no unfair labour practice complaint, grievance or arbitration proceeding in progress or, to the knowledge of the Company, threatened against the Company or its Subsidiaries.
(b) Except as disclosed in the Company's management information circular dated January 18, 2021, no employee of the Company or any Subsidiary has any agreement as to length of notice or severance payment required to terminate his or her employment (other than such as results by Law from the employment of an employee without an agreement as to notice or severance), nor are there any change of control payments or severance payments or agreements with employees of the Company or any Subsidiary providing for cash or other compensation or benefits upon the consummation of, or relating to, the Investment or any other transaction contemplated by this Agreement.
(c) There is no strike, lockout, slowdown, work stoppage, unfair labour practice or other material labour dispute, or material arbitration or grievance pending or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to the Company or any of its Subsidiaries. The Company and each of its Subsidiaries is in compliance in all material respects with all Laws regarding labour, employment and employment practices, terms and conditions of employment, wages and hours (including classification of independent contractors, employees and equitable pay practices), pay equity, human rights, privacy, harassment (including sexual harassment), layoffs, mass termination, overtime and vacation pay, workplace safety, and occupational safety and health, and there are no outstanding or threatened claims, complaints, investigations or Orders under any such Laws and, to the knowledge of the Company, there is no basis for any such claim, complaint, investigation or Order.
(d) Except as set out in Section 3.1(23)(d) of the Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or other agreement with a labour union, labour organization, works council or similar organization, and to the knowledge of the Company, there are no threatened or pending union organizing activities involving any employees. There is no labour strike, dispute, work slowdown or stoppage pending or involving or, to the knowledge of the Company, threatened against the Company in respect of the Company and no such event has occurred within the last three years.
(e) The Disclosure Record contains a complete and accurate list of any of the material business support measures or government programs (including any supplemental employment plan or wage subsidy program) the Company and its Subsidiaries have applied for with any Governmental Authority as a result of the COVID-19 pandemic (each, a "COVID Program"), including the date of the application and status of the application. The Company and its Subsidiaries have performed all of the obligations required to be performed by them in all material respects and are entitled to all benefits pursuant to such COVID Programs. There exists no actual, alleged or anticipated default or event of default or event or condition (including the transaction contemplated by this Agreement) which would with the giving of notice, the lapse of time, or both, or the happening of any other event or condition, result in (i) the Company or any of its Subsidiaries no longer being eligible for the relevant COVID Program, or (ii) a breach, default or violation of any Law related to the relevant COVID Program by the Company or any of its Subsidiaries.
(f) There are no material outstanding assessments, penalties, fines, liens, charges, surcharges, or other amounts due or owing pursuant to any workplace safety and insurance Laws, and neither the Company nor any of its Subsidiaries has been reassessed in any material respect under such Law during the past three years and, to the knowledge of the Company, no audit of the Company is currently being performed pursuant to any workplace safety and insurance Laws. There are no claims or potential claims which may materially adversely affect the Company's or any of its Subsidiaries' accident cost experience.
(g) There are no charges pending under occupational health and safety legislation ("OHSA") in respect of the Company or any of its Subsidiaries. Each of the Company and its Subsidiaries is in compliance in all material respects with any orders issued under OHSA and there are no appeals of any orders under OHSA currently outstanding.
(h) The Company and its Subsidiaries have promptly and thoroughly investigated all relevant occupational health and safety issues related to the COVID-19 pandemic. With respect to each relevant occupational health and safety issue related to the COVID-19 pandemic, the Company and its Subsidiaries have taken prompt corrective action that is reasonably calculated to prevent further spread of COVID- 19 within the workplace.
(i) There are no pending or anticipated layoffs or terminations of employment in respect of any of the Company's or any of its Subsidiaries' employees as a result of the COVID-19 pandemic.
(j) Section 3.1(23)(j) of the Disclosure Letter lists each plan, program, policy, agreement or arrangement providing for compensation, benefits, retirement, pension, bonus, stock purchase, profit sharing, stock option or other equity award, deferred compensation, severance or termination pay, insurance, medical, hospital, dental, vision care, drug, sick leave, disability, salary continuation, legal benefits, unemployment benefits, vacation, incentive or otherwise sponsored, maintained or contributed to, or required to be sponsored, maintained or contributed to, by the Company or the Subsidiaries for the benefit of any current or former director, officer, employee or consultant of the Company or any Subsidiary (the "Employee Plans"). Each Employee Plan has been established, registered (where required), administered, maintained and funded in all material respects with its terms and with the requirements prescribed by any and all statutes, Orders, rules and regulations that are applicable to such Employee Plans.
(k) All material accruals for unpaid vacation pay, premiums for unemployment insurance, health premiums, pension plan premiums, accrued wages, salaries and commissions and employee benefit plan payments of the Company and the Subsidiaries have been recorded in accordance with IFRS and are reflected on the books and records of the Company and its Subsidiaries. There are no material Claims or proceedings pending or, to the knowledge of the Company, threatened by any Governmental Authority, any Person or by any employee or dependent or beneficiary thereof by, on behalf of, in respect of or against any Employee Plan (except routine claims for benefits payable under the Employee Plans) and there exists no state of facts which could reasonably be expected to give rise to any such Claim or proceeding, including with respect to coverage for long-term disability benefits.
(l) Except as disclosed in Section 3.1(23)(l) of the Disclosure Letter, there is no agreement, plan or practice relating to the payment of any management, consulting, service or other fee or any bonus, pensions, share of profits or retirement allowance, insurance, health or other employee benefit.
(m) Except as disclosed in Section 3.1(23)(m) of the Disclosure Letter, no Employee Plan provides health insurance, life insurance, death benefits or other health and welfare benefits to current or former employees of the Company or any of its Subsidiaries beyond their retirement or other termination of service, other than as required by Law. No Employee Plan provides supplemental retirement income benefits.
(n) Neither the execution and delivery of this Agreement or any other Transaction Agreement, nor the consummation of the transactions contemplated hereby and thereby, will, either alone or in conjunction with any other event: (i) entitle any current or former employee, officer, director or independent contractor of the Company or any of its Subsidiaries to any payment or benefit (or result in the funding of any such payment or benefit) under any Employee Plan; (ii) increase the amount of any compensation or benefits otherwise payable by the Company or any of its Subsidiaries under any Employee Plan; (iii) result in the acceleration of the time of payment, funding or vesting of any compensation or benefits under any Employee Plan; or (iv) limit or restrict the right of the Company or any of its Subsidiaries to merge, amend or terminate any Employee Plan.
(o) Neither the Company nor any of its Subsidiaries has any liability with respect to an Employee Plan which is a "registered pension plan" or a "retirement compensation arrangement" as defined in the Tax Act. No Employee Plan contains or has ever contained a "defined benefit provision" as such term is defined in subsection 147.1(1) of the Tax Act.
(24) Real Property.
(a) Section 3.1(24)(a) of the Disclosure Letter sets forth a correct and complete list of all Owned Real Property and Leased Real Property, together with (i) a description of the principal functions conducted at each parcel of Owned Real Property and material Leased Real Property and (ii) a correct street address and such other information as is reasonably necessary to identify each parcel of Owned Real Property and Leased Real Property.
(b) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company or its Subsidiaries, with respect to Owned Real Property, (i) the Company and its Subsidiaries, as applicable, has sufficient title to such property, free and clear of any Encumbrance, and (ii) there are no outstanding options or rights of first refusal to purchase such property, or any portion thereof or interest therein.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, with respect to Leased Real Property: (i) the lease or sublease for such property is valid, legally binding, enforceable and in full force and effect in accordance with its terms; (ii) there is no breach or violation of or default under any such leases or subleases by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto, and no event has occurred that with or without notice, lapse of time or both, would constitute or result in a breach or violation of or default under any such leases or subleases by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto or would permit or cause the termination or modification thereof or acceleration or creation of any right or obligation thereunder; (iii) no event has occurred that with or without notice, lapse of time or both, would prevent or materially impair the consummation of the transactions contemplated by this Agreement; (iv) the Company or its Subsidiaries, as applicable, has obtained any and all head landlord consents required to enter into sublease agreements; (v) the Purchaser has been provided complete and accurate copies of all documents with respect to the Leased Real Property; and
(vi) there are no written or oral subleases, concessions or other Contracts or arrangements granting to any Person other than the Company or its Subsidiaries the right to use or occupy any such property.
(d) The current use of the Owned Real Property and the Leased Real Property complies, in all material respects, with Laws. The Companies and its Subsidiaries have not received any written notice from a Governmental Authority to the effect that the Owned Real Property or the Leased Real Property or the buildings, works or fixtures thereon, violates in any material respect any provision of any Law, including planning, zoning and building codes, fire regulations, or other restrictions relating to the use or construction of the Owned Real Property or the Leased Real Property.
(25) Environmental Matters. Except as disclosed in Section 3.1(25) of the Disclosure Letter:
(a) each of the Company and the Subsidiaries and their respective assets and properties and the business, affairs and operations of each of the Company and the Subsidiaries have been and are in compliance in all material respects with all Environmental Laws; (b) neither the Company nor the Subsidiaries are in violation of any regulation relating to the release or threatened release of Hazardous Materials; (c) no property currently owned or operated by the Company nor any of its Subsidiaries (including soils, groundwater, surface water, buildings and surface and subsurface structures) is contaminated with any Hazardous Materials which would reasonably be expected to require remediation or other action pursuant to any Environmental Law; (d) each of the Company and the Subsidiaries has complied in all material respects with all reporting and monitoring requirements under all Environmental Laws; (e) neither the Company nor the Subsidiaries has ever received any notice of any non-compliance in respect of any Environmental Laws; (f) there are no events or circumstances that might reasonably be expected to form the basis of an order for clean up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company and the Subsidiaries relating to Hazardous Materials or any Environmental Laws; (g) there are no Licences required pursuant to any applicable Environmental Laws necessary to conduct the business, affairs and operations of each of the Company and the Subsidiaries; and (h) neither the Company nor any of its Subsidiaries is subject to any Order or other agreement with any Governmental Authority or any indemnity or other agreement with any third party relating to obligations or liabilities under any Environmental Law.
(26) Intellectual Property.
(a) The Company and its Subsidiaries owns or have sufficient rights to use all of the Company Intellectual Property.
(b) Section 3.1(26)(b) of the Disclosure Letter sets forth a true, correct, and complete list of all registered Company Intellectual Property owned by the Company and its Subsidiaries and pending applications for registration of such Company Intellectual Property, including listing (i) the jurisdictions in which each such item of Company Intellectual Property has been issued, registered, otherwise arises or in which any such application for such issuance and registration has been filed and (ii) the registration or application number and date, as applicable ("Registered Company Intellectual Property"). All of such Registered Company Intellectual Property has been properly maintained and renewed in accordance with all Laws and has not been used or enforced, or failed to be used or enforced, in a manner that would result in the abandonment, cancellation or unenforceability of any material rights in such Company Intellectual Property. Section 3.1(26)(b) further sets forth a true, correct, and complete list of all unregistered Company Intellectual Property owned by the Company and its Subsidiaries that is material to the Company and/or its Subsidiaries. All Company Intellectual Property owned by the Company and its Subsidiaries that is material to the conduct of their respective businesses is subsisting, valid and enforceable. Except as disclosed in Section 3.1(26)(b) of the Disclosure Letter, neither the Company nor any of its Subsidiaries has, within the six years prior to the date of this Agreement, received any unresolved written claim contesting the validity, enforceability or ownership of any such owned registered Company Intellectual Property. To the knowledge of the Company, neither the Company nor any of its Subsidiaries is aware that Company Intellectual Property owned by the Company or its Subsidiaries is being used by third parties other than under terms of a written licence.
(c) Except as disclosed in Section 3.1(26)(c) of the Disclosure Letter, except as has not resulted in, and would not reasonably be expected to result in, material liability to the Company or any of its Subsidiaries, within the six years prior to the date of this Agreement, (i) the Company's and its Subsidiaries' conduct of their respective businesses has not, infringed, misappropriated or otherwise violated any Intellectual Property of any Person, and (ii) neither the Company nor any of its Subsidiaries has received any written third party claim alleging any such infringement, misappropriation or other violation. To the knowledge of the Company, no Person has infringed, misappropriated or violated or is infringing, misappropriating or otherwise violating any Company Intellectual Property owned by the Company or any of its Subsidiaries.
(d) The Company and its Subsidiaries have taken commercially reasonable measures to protect the confidentiality of their trade secrets, proprietary know-how, non- public information and Confidential Information included in Company Intellectual Property, and none of their respective trade secrets, proprietary know-how, non- public information and Confidential Information included in Company Intellectual Property have been disclosed to or discovered by any third party other than pursuant to reasonable terms of non-disclosure.
(e) Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (i) the information technology assets owned or used by the Company and its Subsidiaries operate and perform as required by the Company and its Subsidiaries in connection with their respective businesses and (ii) the Company and its Subsidiaries have implemented commercially reasonable backup and disaster recovery technology and procedures in a manner that is substantially consistent with applicable industry practices.
(f) Except as would not reasonably be expected to have a Material Adverse Effect, none of the software owned by the Company or any of its Subsidiaries or any software products distributed by the Company or any of its Subsidiaries incorporates or is comprised of or distributed with any Publicly Available Software in a manner which: (i) requires the distribution of the software source code in connection with the distribution of such software in object code form; (ii) materially limits the Company or any of its Subsidiaries' freedom to seek full compensation in connection with making, using, marketing, licensing and/or distributing such software; or (iii) allows a Person or requires that a Person have the right to decompile, disassemble or otherwise reverse engineer such software.
(g) The Company and of its Subsidiaries has no pending action or proceeding, nor, to the knowledge of the Company, is there any threatened action or proceeding against it with respect to the Company's or each of its Subsidiaries' use of Intellectual Property or the validity, enforceability or ownership of Company Intellectual Property.
(h) There are no outstanding judgments, orders, decrees, stipulations or Laws that restrict the use of Company Intellectual Property.
(i) Except as set out in Section 3.1(26)(i) of the Discloser Letter, all Persons that have been involved in the creation or development of Company Intellectual Property purported to be owned by the Company or one of its Subsidiaries have irrevocably assigned all of their right, title and interest in and to that Intellectual Property to the Company or one of its Subsidiaries and irrevocably waived any authors' moral rights that they may have in any such Intellectual Property in favour of the Company and its Subsidiaries.
(27) No Undisclosed Liabilities. Except for obligations and liabilities (a) reflected or reserved against in the Financial Statements, (b) incurred in the Ordinary Course since the date of the Financial Statements, or (c) incurred in connection with actions taken pursuant to the terms of this Agreement, there are no obligations or liabilities of the Company or any of its Subsidiaries, whether or not accrued, contingent or otherwise and whether or not required to be disclosed or any other facts or circumstances that, to the knowledge of the Company, would reasonably be expected to result in any claims against, or obligations or liabilities of, the Company or any of its Subsidiaries that is required by IFRS to be set forth in a consolidated statement of financial position of the Company, except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(28) Taxes.
(j) All Taxes due and payable by the Company and the Subsidiaries have been duly and timely paid, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. All Tax Returns required to be filed by the Company and the Subsidiaries have been duly and timely filed with all appropriate authorities and all such returns, declarations, remittances and filings are complete and accurate and no fact or facts have been omitted therefrom which would make any of them misleading, except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. No examination of any Tax Return of the Company or any Subsidiaries is currently in progress and there are no issues or disputes outstanding with any Governmental Authority respecting any Taxes that have been paid, or may be payable, by the Company and any Subsidiaries, except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. No material Tax refunds or credits have been claimed or received by the Company and its Subsidiaries to which they are not entitled.
(b) The Company and, as applicable, each of the Subsidiaries, have established on their books and records reserves that are adequate for the payment of all Taxes not yet due and payable and there are no Encumbrances for Taxes on the assets of the Company or any of the Subsidiaries other than for Taxes not yet due and payable, and, to the knowledge of the Company, there are no audits, examinations, investigations or administrative or judicial proceedings concerning any Tax matters with respect to the Company or any of its Subsidiaries pending or being conducted or, to the knowledge of the Company, that have been threatened in writing. There are no Claims which have been or, to the knowledge of the Company, may be asserted relating to any Tax Returns of the Company or any of the Subsidiaries (whether federal, state, provincial, local or foreign). No written claim has been made by any Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries has not filed a Tax Return that the Company or any of its Subsidiaries are or may be subject to Tax by such jurisdiction. Neither the Company nor any of its Subsidiaries is or has been subject to Tax in any jurisdiction other than its jurisdiction of incorporation by virtue of having a permanent establishment or other place of business or taxable presence in that jurisdiction. All Taxes that the Company or any of its Subsidiaries are obligated to withhold from amounts paid or owing to any employee, independent contractor, creditor, stockholder, non-resident or other third party have been duly and timely withheld and remitted to the appropriate taxing authority, and all applicable forms with respect thereto have been properly completed and timely filed or provided to the payee (in each case, as required by Law). The Company and its Subsidiaries have charged, collected and remitted on a timely basis all Taxes as required by Law (including under Part IX of the Excise Tax Act (Canada) and any analogous provincial legislation) on any sale, supply or deliver whatsoever made by each of the Company and its Subsidiaries. There is no outstanding waiver or extension of any statute of limitations with respect to the assessment or collection of material Taxes from the Company or any of the Subsidiaries.
(c) Neither the Company nor any of its Subsidiaries is a party to or bound by any Tax allocation or Tax sharing agreement or similar agreement with any Person, other than any such agreements solely between or among the Company and its Subsidiaries (excluding, in each case, any commercial agreement entered into in the Ordinary Course and not principally related to Taxes, such as a lease or credit agreement). Neither the Company nor any of its Subsidiaries (i) has been a member of any affiliated, consolidated, combined, unitary or other group for Tax purposes (other than a group of which the Company is the common parent) or (ii) has any liability for Taxes of any Person (or in connection with previously being, or ceasing to be, a member of any affiliated, consolidated, combined, unitary or other group for Tax purposes), as transferee (including for purposes of section 160 of the Tax Act), successor or otherwise.
(d) Neither the Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the date hereof as a result of (i) any change in method of accounting for a taxable period (or portion thereof) ending on or before the date hereof or (ii) any action taken or transaction entered into before the date hereof. Neither the Company nor any of its Subsidiaries has received or applied for a Tax ruling from any Governmental Authority or entered into any closing agreement or other written agreement with a Governmental Authority regarding Taxes or Tax matters. The Company and each of its Subsidiaries has complied with all applicable rules regarding transfer pricing, including the execution and maintenance of documentation required to substantiate transfer pricing practices of the Company and its Subsidiaries.
(e) There are no circumstances existing which could result in the application of section 17, section 78 or sections 80 to 80.04 of the Tax Act, or any equivalent provision under Canadian provincial Law, to the Company or any of its Subsidiaries. Other than in the Ordinary Course, the Company and its Subsidiaries have not claimed nor will they claim any reserve under any provision of the Tax Act or any equivalent provincial provision, if any amount could be included in the income of the Company or its Subsidiaries for any period ending after the Closing.
(f) The Subscription Shares will not be "taxable Canadian property" for purposes of the Tax Act at the time they are issued.
(29) Litigation.
(a) Except as disclosed in Section 3.1(29)(a) of the Disclosure Letter, there are no claims, actions, suits, arbitrations, inquiries, judgments, investigations, charges or proceedings pending, or, to the knowledge of the Company threatened, against or relating to the Company or any of its Subsidiaries, the business of the Company or of any of its Subsidiaries or affecting any of their respective current or former properties or assets by or before any Governmental Authority that, if determined adversely to the interests of the Company or any of its Subsidiaries would (i) be expected to be material to the Company or its Subsidiaries or (ii) prevent, hinder or materially delay the consummation of the Investment or the transactions contemplated hereby, nor, to the knowledge of the Company are there any events or circumstances which could reasonably be expected to give rise to any such claim, action, suit, arbitration, inquiry, judgment, investigation, charge or proceeding.
(b) The Company or its Subsidiaries are not subject to any judgment, Order, writ, injunction, decree or award of any Governmental Authority, which, either individually or in the aggregate, would reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole or that would be reasonably expected to prevent, hinder or materially delay the consummation of the Investment or the transactions contemplated hereby.
(30) No Brokers. Except as disclosed in Section 3.1(30) of the Disclosure Letter, no investment banker, dealer, broker, finder, financial advisor or other intermediary has been retained by or is authorized to act on behalf of the Company or any of its Subsidiaries or is entitled to any fee, commission or other payment from the Company or any of its Subsidiaries in connection with the issue and sale of the Subscription Shares or any other transaction contemplated by the Transaction Agreements.
(31) Privacy and Data Protection.
(a) Each of the Company and its Subsidiaries is, and has been, conducting its business in compliance in all material respects with all Data Protection Laws.
(b) There have been no breaches, security incidents, misuse of or unauthorized access to or disclosure of, or any instances of accidental or unlawful destruction, loss or alteration of, any Personal Data in the possession or control of the Company or any of its Subsidiaries and, to the knowledge of the Company, there is no fact or matter which may give rise to the occurrence of any of the foregoing. None of the Company or any of its Subsidiaries has received any written or other notice of any claims or investigations related to alleged violations of Data Protection Laws, applicable privacy policies or Contracts with respect to Personal Data, and, to the knowledge of Company, there are no facts or circumstances which could form the basis for any such claim or investigation.
(c) True, correct and complete copies of all material correspondence between the Company or any of its Subsidiaries, on the one hand, and any Data Protection Authority, on the other hand, have been provided to the Purchaser.
(32) Anti-Spam Laws. Each of the Company and its Subsidiaries is, and has been, conducting its business in compliance with all Anti-Spam Laws, other than acts of non-compliance which individually or in the aggregate are not material.
Schedule B
Representations and Warranties and Acknowledgements of the Purchaser
(1) Incorporation and Organizational Matters. The Purchaser is a valid and subsisting company existing under the Laws of its jurisdiction of formation and no steps or proceedings have been taken by any Person, voluntary or otherwise, requiring or authorizing the dissolution or winding up of the Purchaser.
(2) Corporate Authorization and Power. The Purchaser has all requisite corporate power and authority and has taken all corporate action necessary in order to execute, deliver and perform under this Agreement and each of the Transaction Agreements to which it is or will eb a party and to consummate the transactions contemplated hereby and thereby.
(3) Execution and Binding Obligations.
(a) This Agreement has been duly authorized, executed and delivered by the Purchaser and constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, subject to Bankruptcy Laws, and will not violate or conflict with the constating documents of the Purchaser or the terms of any restriction or Contract to which the Purchaser is subject.
(b) Each of the Transaction Agreements has been or will be duly authorized, executed and delivered by the Purchaser and such Affiliates (as applicable) that is or will be a party thereto and shall constitute a legal, valid and binding obligation of the Purchaser and each of its applicable Affiliates enforceable against such of them in accordance with its terms, subject to Bankruptcy Laws, and will not violate or conflict with the constating documents of the Purchaser and its applicable Affiliates or the terms of any restriction, agreement or undertaking to which the Purchaser or its applicable Affiliates is subject.
(4) No Bankruptcy. There has not been a Bankruptcy Event with respect to the Purchaser. The Purchaser has sufficient funds to satisfy its obligations under this Agreement.
(5) Securities Laws Matters.
(a) The Purchaser is an "accredited investor" as defined in NI 45-106.
(b) The Purchaser is an "accredited investor" as defined in Rule 501(a) of Regulation D under the U.S. Securities Act.
(c) The Purchaser is purchasing as principal or is deemed to be purchasing as principal in accordance with Securities Laws, for its own account and not as agent for the benefit of another Person.
(d) The Purchaser is not purchasing the Subscription Shares as a result of any form of "general solicitation" or "general advertising" (as such terms are defined in Regulation D under the U.S. Securities Act) including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media (including any press release of the Company) or broadcast over the Internet, radio, or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising.
(e) The Purchaser was not created or used solely to purchase or hold securities in reliance on: (i) the exemption from the prospectus requirement in Section 2.10 of NI 45-106; or (ii) the registration exemption provided by section 4(a)(2) of the U.S. Securities Act and/or Rule 506(b) of Regulation D thereunder, or any similar registration exemptions under any U.S. state Securities Laws.
(f) The Purchaser is acquiring the Subscription Shares without a view to immediate resale or distribution of any part thereof and will not resell or otherwise transfer or dispose of the Subscription Shares or any part thereof except in accordance with the provisions of Securities Laws.
(g) The Purchaser acknowledges and understands that:
(i) the Subscription Shares will be issued as "restricted securities" (as defined in Rule 144(a)(3) under the U.S. Securities Act); and
(ii) the Company may make a notation on its records or give instructions to the Company's registrar and transfer agent in order to implement the restrictions on transfer set forth and described herein.
(6) Security Ownership. The Purchaser currently holds no securities in the capital of the Company.
(7) Offering Memorandum. The Purchaser has not been provided with, has not requested, and does not need to receive an offering memorandum as defined in Securities Laws.
INVESTOR RIGHTS AGREEMENT
between
BT DE INVESTMENTS INC.
and
ORGANIGRAM HOLDINGS INC.
March 10, 2021
TABLE OF CONTENTS
(i)
ADDENDA
Schedule A [Redacted]
Schedule B [Redacted]
Schedule C Registration Rights Procedures
( ii )
INVESTOR RIGHTS AGREEMENT
This INVESTOR RIGHTS AGREEMENT dated March 10, 2021 (this "Agreement") is made by and between BT DE Investments Inc., a corporation existing under the Laws of the State of Delaware (the "BAT Shareholder"), and Organigram Holdings Inc., a corporation existing under the Act (the "Company").
RECITALS:
A. The BAT Shareholder subscribed for 58,336,392 common shares in the capital of the Company ("Common Shares") pursuant to a Subscription Agreement dated March 10, 2021 (the "Subscription Agreement") by and between the BAT Shareholder and the Company (the "Investment").
B. In connection with the closing of the Investment, the BAT Shareholder and the Company wish to set forth their agreements regarding the BAT Shareholder's rights as a shareholder of the Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by the Parties, the Parties hereby agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions.
Whenever used in this Agreement, the following terms shall have the meanings set forth below: "Act" means the Canada Business Corporations Act.
[Redacted]
"Affiliate" has the meaning ascribed to such term in NI 45-106.
"Agreement" has the meaning ascribed to such term in the preamble to this Agreement. "Allocated Investment Proceeds" means $31,109,048.
"At-the-Market Distribution" means a distribution of Shares pursuant to an at-the-market program implemented by the Company pursuant to NI 44-102.
"Available Nominees" means, at any time, the maximum number of Directors based on the size of the Board at such time.
"Audit Committee" means the Audit Committee of the Board, as the same may be constituted from time to time.
"Authorization" means, with respect to any Person, any Order, license, permit, certification, approval, registration, consent, authorization, clearance, franchise, qualification, filing, privilege, variance or exemption issued or granted by, or any Contract with, any Governmental Authority having jurisdiction over such Person and/or any of its assets, as the same may have been, or may from time to time be, amended, supplemented or replaced.
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"BAT Director Nominees" means, collectively, the Nominees designated as such, initially pursuant to Section 2.1, and thereafter by the BAT Group Representative pursuant to Section 2.4, and "BAT Director Nominee" means any one of them, as the context requires.
"BAT Group Representative" has the meaning ascribed to such term in Section 4.1(1).
"BAT Group" means, collectively, BAT Parent and its Affiliates, and "member of the BAT Group" means any one of them, as the context requires.
"BAT Group Permitted Holders" means, collectively, the BAT Shareholder and any other member of the BAT Group.
"BAT Parent" means British American Tobacco plc.
"BAT Shareholder" has the meaning ascribed to such term in the preamble to this Agreement.
"Board" means the board of directors of the Company, as the same may be constituted from time to time.
"bought deal" means a public offering of securities as described in the definition of "bought deal agreement" in Section 7.1 of National Instrument 44-101 - Short Form Prospectus Distributions.
"Business Day" means a day other than a Saturday, Sunday or other day on which commercial banks in Toronto, Ontario, Moncton, New Brunswick, New York City, New York or London, United Kingdom are authorized or required by Law to close.
"Canadian Securities Regulators" means, collectively, the securities commissions or other securities regulatory authorities in each of the Qualifying Jurisdictions.
"Cannabis" has the meaning ascribed to such term in the Cannabis Act, and includes: (1) all living or dead material, plants, seeds, plant parts or plant cells from any cannabis species or subspecies (including sativa, indica and ruderalis), including wet and dry material, trichomes, oil and extracts from cannabis (including cannabinoid or terpene extracts from the cannabis plant); and (2) biologically or synthetically synthesized analogs of cannabinoids extracted from the cannabis plant using micro-organisms, including:
(a) cannabis and marijuana or marihuana (as such term is defined under Law, including the Cannabis Act); and (b) "industrial hemp" (as such term is defined in the Industrial Hemp Regulations issued under the Cannabis Act or other Laws).
"Cannabis Act" means the Cannabis Act (Canada).
"Cannabis Authorizations" means all Authorizations issued or granted, or required to be issued or granted, to a Person under or pursuant to Cannabis Laws, including all Contracts with Governmental Authorities thereunder or relating thereto.
"Cannabis Laws" means all Laws and Contracts with Governmental Authorities, and all other statutory requirements, relating to Cannabis, including the Cannabis Act and all Cannabis Authorizations.
"Collaboration Agreement" means the Collaboration Agreement entered into contemporaneously herewith between the BAT Shareholder and the Company in respect of the Product Development Collaboration.
"Company" has the meaning ascribed to such term in the preamble to this Agreement.
[Redacted]
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"Company Shareholders" means, collectively, all Persons that own and/or control, directly or indirectly, Shares.
"Committee" means each of the Audit Committee, the Investment Committee and any other committee of the Board established by the Board from time to time.
"Common Shares" has the meaning ascribed to such term in the recitals to this Agreement. "Conditions" has the meaning ascribed to such term in Section 2.4.
"Confidential Information" means, with respect to the Company and its Subsidiaries, on the one hand, and the BAT Group, on the other hand, all confidential or proprietary information, intellectual property and confidential facts relating to the business and affairs of the Company and its Subsidiaries, on the one hand, or the BAT Group, on the other hand, respectively, including their respective customers, products, services, technology, trade secrets, know-how, systems and operations; provided, that "Confidential Information" does not include any information that: (1) is or becomes generally available to the public other than as a result of disclosure, directly or indirectly, by a member of the BAT Group or any of its Representatives, on the one hand, or the Company or any of its Subsidiaries or any of their respective Representatives, on the other hand, in violation of Section 3.2; (2) is or becomes available to any member of the BAT Group or any of its Representatives, on the one hand, or the Company or any of its Subsidiaries or any of their respective Representatives, on the other hand, on a non-confidential basis from a source other than the other or any of its Representatives, as applicable, unless the applicable Person knew after reasonable inquiry that such source was prohibited from disclosing the information to it by a contractual, fiduciary or other legal obligation; or (3) the BAT Shareholder, on the one hand, or the Company, on the other hand, can show was independently acquired or developed by or on behalf of the BAT Group or any of its Representatives, on the one hand, or by the Company or any of its Subsidiaries or any of their respective Representatives, on the other hand, prior to the disclosure by or on behalf of the other of, and without the use of any, Confidential Information.
"Constating Documents" means, collectively, the certificate and articles of incorporation, amendment, amalgamation or continuance, or other similar formation documents, as applicable, the by-laws or other similar governance documents, as applicable, organizational documents and other constating documents of the Company and its Subsidiaries, in each case, as the same may be amended, restated, replaced, modified and/or supplemented from time to time.
"Contract" means any agreement, indenture, contract, lease, deed of trust, license, option, instruments, arrangement, understanding or other commitment, in each case, whether written or oral.
"control" means the possession, directly or indirectly, of the power to direct, or cause the direction of, the management and policies of a Person, whether through the ownership of voting securities, by Contract or otherwise, and "controlled", "controls", "controlling", "under common control with" and other similar phrases shall have the corresponding meaning.
"Convertible Securities" means any securities in the capital of the Company or any of its Subsidiaries that are convertible into, exercisable or exchangeable for, or otherwise grant the right to acquire, Shares (for greater certainty, including any subscription receipts and any share units issued pursuant to the Equity Incentive Plans from time to time).
"Director" means a director on the Board.
"Directors Election Meeting" means any meeting of Company Shareholders at which individuals are proposed for election as Directors.
"Distributed Securities" means any Shares or Convertible Securities distributed or issued pursuant to a Distribution.
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"Distribution" means any distribution or issuance by the Company or any of its Subsidiaries of Shares and/or Convertible Securities (for greater certainty, including any Prospectus Distribution and the payment of any dividend in Shares and/or Convertible Securities), other than any (1) Exempt Distribution and (2) issuance of Convertible Securities in the Ordinary Course pursuant to the Equity Incentive Plans.
"Distribution Notice" has the meaning ascribed to such term in Section 5.1(2).
"Equity Incentive Plans" means, collectively, all plans of the Company and/or any of its Subsidiaries in effect from time to time pursuant to which securities of the Company and/or any of its Subsidiaries may be issued, or options or other securities convertible or exercisable into, or exchangeable for, securities of the Company and/or any of its Subsidiaries may be granted, to the Persons set out therein (including the equity incentive plan approved by the Company Shareholders at the annual and special meeting of the Company Shareholders held on February 25, 2020).
"Exempt Distribution" means any distribution or issuance by the Company or any of its Subsidiaries approved by the Board of: (1) Convertible Securities issued, and Shares issued on the exercise, conversion or exchange of such Convertible Securities, in each case pursuant to the Equity Incentive Plans in accordance with the terms thereof; (2) Shares pursuant to the exercise, conversion or exchange of any issued and outstanding Convertible Securities on the date hereof in accordance with the terms thereof, as applicable; (3) Shares pursuant to the exercise, conversion or exchange of Convertible Securities in accordance with the terms thereof, in each case, where such Convertible Securities were issued pursuant to the Pre-Emptive Right in accordance with Section 5.1;(4) Shares as purchase price consideration in connection with any business acquisition by the Company or any of its Subsidiaries, whether structured as a purchase of shares or assets and/or effected pursuant to an amalgamation, arrangement, merger or other business combination transaction; (5) Shares or Convertible Securities as de minimis equity kickers to bona fide third party debt financing sources of the Company or any of its Subsidiaries; (6) Shares pursuant to any At-the-Market Distribution; and (7) distributions or issuances which, pursuant to Securities Laws, would require shareholder approval (but only to the extent that the participation of the BAT Group Permitted Holders triggers such requirement).
"Form F-1" means Form F-1 under the U.S. Securities Act or any successor registration form under the
U.S. Securities Act subsequently adopted by the SEC.
"Form F-3" means Form F-3 under the U.S. Securities Act or any registration form under the U.S. Securities Act subsequently adopted by the SEC that permits incorporation of substantial information by reference to other documents filed by the issuer with the SEC.
"Governance and Nominating Committee" means the Governance and Nominating Committee of the Board, as the same may be constituted from time to time.
"Governmental Authority" means:
(1) any domestic or foreign government, whether national, federal, provincial, state, territorial, municipal or local (whether administrative, legislative, executive or otherwise);
(2) any domestic or foreign agency, authority, ministry, department, regulatory authority, court, central bank, bureau, board or other instrumentality having legislative, judicial, taxing, regulatory, prosecutorial or administrative powers or functions of, or pertaining to, government, including Health Canada and other applicable regulatory authorities with oversight of the Cannabis industry and any business or operations within the Cannabis industry generally;
(3) any court, commission, individual, arbitrator, arbitration panel or other body having adjudicative, regulatory, judicial, quasi-judicial, administrative or similar functions, including the Securities Regulators; and/or
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(4) the TSX, the NASDAQ and any other stock or securities exchange.
"IFRS" means the International Financial Reporting Standards as issued by the International Accounting Standards Board (IASB), interpretations issued by the International Financial Reporting Interpretations Committee, International Accounting Standards issued by the International Accounting Standards Committee and the interpretations issued by the Standing Interpretations Committee.
"Indemnified Person" has the meaning ascribed to such term in Section 7.3.
"Investment" has the meaning ascribed to such term in the recitals to this Agreement.
"Investment Committee" means the Investment Committee of the Board, as the same may be constituted from time to time.
"Law" means any and all applicable: (1) foreign or domestic constitution, treaty, law, statute, regulation, code, ordinance, principle of common law or equity, rule, municipal bylaw, Order or other requirement having the force of law; (2) policy, practice, protocol, standard or guideline of any Governmental Authority which, although not necessarily having the force of law, is regarded by such Governmental Authority as requiring compliance as if it had the force of law; and (3) rule of the TSX, the NASDAQ and any other stock or securities exchange on which the Company's securities are listed and/or traded.
"NASDAQ" means the Nasdaq Global Select Market.
"NI 44-102" means National Instrument 44-102 - Shelf Distributions.
"NI 45-106" means National Instrument 45-106 - Prospectus Exemptions.
"Nomination Letter" has the meaning ascribed to such term in Section 2.4.
"Nominees" means, collectively, the nominees that are proposed for election as Directors by the Company and included in a management information circular of the Company relating to the election of Directors at a Directors Election Meeting, and "Nominee" means any one of them, as the context requires.
"Notice" has the meaning ascribed to such term in Section 10.10(1).
"Order" means any order, directive, judgment, decree, injunction, decision, ruling, award or writ of any Governmental Authority.
"Ordinary Course" means, with respect to an action taken by a Person, that such action is consistent with the past practices of such Person and is taken in the ordinary course of normal operations of such Person.
"Partially Diluted Ownership Percentage" means, at any time, the direct and/or indirect aggregate ownership interest of the BAT Group Permitted Holders in the Company, expressed as a percentage, calculated as follows: (1)(a) the aggregate number of issued and outstanding Shares owned and/or controlled by the BAT Group Permitted Holders at such time, plus (b) the aggregate number of Shares represented by any issued and outstanding Convertible Securities owned and/or controlled by the BAT Group Permitted Holders at such time, if applicable (assuming the conversion, exercise and/or exchange thereof); divided by (2)(a) the aggregate number of issued and outstanding Shares at such time, plus (b) the aggregate number of Shares represented by any issued and outstanding Convertible Securities owned and/or controlled by the BAT Group Permitted Holders at such time, if applicable (assuming the conversion, exercise and/or exchange thereof) and excluding, for greater certainty, the Shares represented by any other issued and outstanding Convertible Securities owned and/or controlled by any other Person at such time.
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"Parties" means, collectively, the BAT Shareholder and the Company, and "Party" means any one of them, as the context requires.
"Person" means any individual, corporation, partnership, limited partnership, firm, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Authority or other entity.
"Piggyback Shareholder" has the meaning ascribed to such term in Section 6.1.
"Piggyback Notice" has the meaning ascribed to such term in Section 6.1.
"Piggyback Registration" has the meaning ascribed to such term in Section 6.1.
"Pre-Emptive Right" has the meaning ascribed to such term in Section 5.1(1).
"Pre-Emptive Right Subscription Notice" has the meaning ascribed to such term in Section 5.1(3).
"Product Development Collaboration" means the collaboration between the BAT Shareholder and the Company (and one or more of their respective Affiliates) contemplated in the Collaboration Agreement.
"Product Development Collaboration Budget" means the budget relating to the Product Development Collaboration agreed to by the BAT Shareholder and the Company and annexed to the Collaboration Agreement, as the same may be amended from time to time by mutual agreement of the Parties.
"Prospectus" means a prospectus (as such term is used in National Instrument 41-101 - General Prospectus Requirements), as varied in accordance with National Instrument 44-102 - Shelf Distributions, as the same may be required under applicable Securities Laws.
"Prospectus Distribution" means a distribution of Shares to the public under Securities Laws by way of a Prospectus in one or more Qualifying Jurisdictions and/or by way of a Registration Statement in the United States, except for any At-the-Market Distribution.
"Qualifying Jurisdictions" means, collectively, all of the provinces and territories of Canada.
"Representative" means, with respect to any Person, such Person's directors, officers, employees, agents, consultants, insurers, financing sources, legal counsel, accountants, advisors and other representatives; provided, that, with respect to the BAT Shareholder and each other member of the BAT Group for purposes of Section 3.2, "Representative" shall also include a prospective purchaser of Shares from the BAT Shareholder (or any other BAT Group Permitted Holder) that agrees to be bound by the provisions of Section 3.2(1), mutatis mutandis.
"Registrable Securities" means: (1) any Shares; (2) any Shares issuable upon the exercise, conversion or exchange of any Convertible Securities, in each case, to the extent exercisable, convertible or exchangeable; and (3) all Shares directly or indirectly issued or issuable with respect to the securities referred to in the foregoing (1) and (2) by way of share dividend or share split, or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization (it being understood that a Person shall be deemed to be a holder of Registrable Securities whenever such Person has the right to then acquire or obtain any Registrable Securities, whether or not such acquisition has actually been effected).
"Registration Statement" means a registration statement under the U.S. Securities Act, on Form F-1 or Form F-3, as applicable, and any prospectus or prospectuses included therein, as amended or supplemented (including any post-effective amendments) and any materials incorporated by reference therein.
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"SEC" means the U.S. Securities and Exchange Commission and any other U.S. federal agency administering the U.S. Securities Act and the U.S. Exchange Act at the time.
"Securities Act" means the Securities Act (Ontario).
"Securities Laws" means, collectively, the securities Laws of each of the provinces and territories of Canada, the U.S. Securities Act, the U.S. Exchange Act, and the respective regulations, instruments and rules made thereunder, together with all applicable published policy statements, notices, blanket orders and rulings of the Securities Regulators, including the applicable rules and requirements of the TSX, the NASDAQ, and any other stock or securities exchange on which the Company has applied to list its securities or on which its securities are listed and/or traded.
"Securities Regulators" means, collectively the Canadian Securities Regulators and the SEC. "Share Buyback" has the meaning ascribed to such term in Section 10.3.
"Shares" means all shares in the capital of the Company, including Common Shares and any other shares in the capital of the Company authorized and/or issued and outstanding from time to time.
"Subscription Agreement" has the meaning ascribed to such term in the recitals to this Agreement. "Subsidiaries" has the meaning ascribed to such term in the Act.
"Tax Act" means the Income Tax Act (Canada).
"Top-Up Right" has the meaning ascribed to such term in Section 5.2(1).
"Top-Up Right Subscription Notice" has the meaning ascribed to such term in Section 5.2(3).
"Transaction Agreements" means, collectively, this Agreement, the Subscription Agreement, the Collaboration Agreement, and all agreements, certificates and other instruments delivered pursuant hereto and thereto.
"Transfer" has the meaning ascribed to such term in Section 8.2(1).
"Transfer Shares" has the meaning ascribed to such term in Section 8.2(2).
"TSX" means the Toronto Stock Exchange.
"underwriter" and all terms which are derivatives thereof shall be deemed to include "best efforts agent" and all terms which are derivatives thereof, as appropriate.
"Underwriters' Cutback" has the meaning ascribed to such term in Section 6.2.
"U.S. Exchange Act" means the U.S. Securities Exchange Act of 1934.
"U.S. Securities Act" means the U.S. Securities Act of 1933.
Section 1.2 Gender and Number.
Any reference in this Agreement to gender includes all genders. Words importing the singular number only include the plural and vice versa.
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Section 1.3 Headings, etc.
The division of this Agreement into Articles and Sections, and the insertion of headings, are for convenience of reference only and do not affect the interpretation of this Agreement.
Section 1.4 Currency.
All references in this Agreement to dollars or to $ are expressed in Canadian currency unless otherwise specifically indicated.
Section 1.5 Certain Phrases, etc.
In this Agreement, unless otherwise specified:
(1) the words "including", "includes" and "include" mean "including (or includes or include) without limitation";
(2) the phrase "the aggregate of", "the total of", "the sum of" or a phrase of similar meaning means "the aggregate (or total or sum), without duplication, of";
(3) the words "Article", "Section" and "Schedule" followed by a number mean and refer to the specified Article, Section or Schedule of this Agreement; and
(4) in the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding".
Section 1.6 Accounting Terms.
All accounting terms not specifically defined in this Agreement are to be interpreted in accordance with IFRS.
Section 1.7 Schedules.
The Schedules attached to this Agreement form an integral part of this Agreement for all purposes hereof.
Section 1.8 Company Covenants.
All covenants or agreements contained in this Agreement on the part of the Company shall also apply to its Subsidiaries, mutatis mutandis, and each such covenant or agreement shall be construed as a covenant by the Company to cause (to the fullest extent permitted by Law) such Subsidiary to perform or not perform the required action, as applicable, in accordance with the terms of such covenant or agreement, mutatis mutandis.
Section 1.9 References to Persons and Agreements.
Any reference in this Agreement to a Person includes its heirs, administrators, executors, legal representatives, successors and permitted assigns, as applicable. Except as otherwise provided in this Agreement, the term "Agreement" and any reference to this Agreement, or to any other agreement, document or other instrument, includes, and is a reference to, this Agreement or such other agreement, document or other instrument, as the same may have been, or may from time to time be, amended, restated, replaced, supplemented or novated, and includes all schedules hereto.
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Section 1.10 Statutes.
Except as otherwise provided in this Agreement, any reference in this Agreement to a statute refers to such statute, and all rules and regulations made thereunder, as the same may have been, or may from time to time be, amended, re-enacted or replaced.
Section 1.11 Non-Business Days.
Whenever payments are to be made, or an action is to be taken, on a day which is not a Business Day, such payment shall be made, or such action shall be taken, on or not later than the next succeeding Business Day.
Section 1.12 No Presumption.
This Agreement is the product of negotiation by the Parties having the assistance of counsel and other advisers. It is the intention of the Parties that neither Party shall be presumed to be the drafter hereof and that this Agreement not be construed more strictly with the regard to one Party than to the other Party.
ARTICLE 2
NOMINATION RIGHTS
Section 2.1 Board of Directors.
On the date hereof, the Company's Board consists of 9 Directors, which Directors shall be: Peter Amirault (Independent Chair), Gregory Engel, Dexter John, Geoffrey Machum, Ken Manget, Sherry Porter, Stephen Smith, Marni Wieshofer, and Jeyan Heper. The initial BAT Director Nominee shall be Jeyan Heper.
Section 2.2 Board Nomination Rights.
(1) The BAT Group Permitted Holders shall be entitled to designate in accordance with the nomination procedures contained in Section 2.4:
(a) 20% of the Available Nominees, rounding up to the nearest whole member (e.g., 2 of 10), for so long as the Partially Diluted Ownership Percentage of the BAT Group Permitted Holders is at least 15%; and
(b) 10% of the Available Nominees, rounding up to the nearest whole member (e.g., 1 of 10), for so long as the Partially Diluted Ownership Percentage of the BAT Group Permitted Holders is at least 10% (but less than 15%).
(2) In the event that the number of BAT Director Nominees serving on the Board exceeds the number of Nominees that the BAT Group Permitted Holders are entitled to nominate under Section 2.2(1)(a) or Section 2.2(1)(b), as the case may be, because the Partially Diluted Ownership Percentage of the BAT Group Permitted Holders was less than the applicable minimum percentage threshold set forth in Section 2.2(1)(a) or Section 2.2(1)(b) for a period equal to 120 days, provided that (i) if a Top-Up Right is then exercisable, the period shall not end prior to the expiry of the period for exercise thereof, and (ii) if there is a blackout period imposed by the Company during such 120-day period, the period shall not expire until the 120th day following the expiry of the last such blackout, the BAT Group Permitted Holders shall notify the Company promptly thereof and: (a) upon the written request of the Company, cause such number of the BAT Director Nominee(s) in excess of the number of Nominee(s) that BAT Group Permitted Holders are entitled to nominate to forthwith resign; and (b) if no such request is made by the Company, the BAT Director Nominee(s) shall continue until his, her or their term expires at the next Directors Election Meeting, as applicable, or, if earlier, such Director Nominee(s) otherwise resign(s), become(s) incapacitated, die(s) or cease(s) to be qualified to act as a Director.
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(3) In the event that the BAT Group Permitted Holders have designated fewer BAT Director Nominees than the total number of Nominees that the BAT Group Permitted Holders are entitled to designate pursuant to Section 2.2(1)(a) or Section 2.2(1)(b), as the case may be, then the BAT Group Permitted Holders shall have the right, at any time and from time to time, to designate such additional BAT Director Nominee(s) to which they are entitled hereunder, in which case, the Company and the Directors shall take all necessary corporate action, to the fullest extent permitted by Law, to promptly: (a) enable the BAT Group Permitted Holders to designate and effect the election or appointment of such additional BAT Director Nominee(s); and (b) appoint such BAT Director Nominee(s) to fill any available vacancies or, to the extent not so permitted, nominate any such BAT Director Nominee for election as a Director at the next Directors Election Meeting in accordance with Section 2.4.
(4) The BAT Group Permitted Holders may, at any time and from time to time, upon written notice to the Company, designate any or all of the BAT Director Nominees as non-voting Board observers. In such an event, the BAT Group Permitted Holders shall use commercially reasonable efforts to cause such BAT Director Nominee(s) to resign from the Board and the Company shall record such resignation(s) in the Company's books and records. All non-voting Board observers designated as such by the BAT Group Permitted Holders shall be entitled to attend all Board meetings, and to receive all notices, correspondence and materials associated therewith, as if such non-voting Board observers were Directors; provided, that they shall not: (a) hold any voting authority attributable to the Directors whatsoever; (b) count towards the quorum of the Board for the purposes of any Board meeting; or (c) hold any of the legal responsibilities attributable to Directors under Law.
(5) For greater certainty, the selection of Nominees other than the BAT Director Nominees designated by the BAT Group Permitted Holders pursuant to this Section 2.2 (including in the event that any designation right has not been exercised pursuant thereto), shall rest with the Board, or the Governance and Nominating Committee, if so determined by the Board.
(6) Each Party acknowledges that a breach or threatened breach by a Party of any provision of this Section 2.2 will result in the other Party suffering irreparable harm which cannot be calculated or fully or adequately compensated by recovery of damages alone. Accordingly, each Party agrees that in connection with any breach or threatened breach by such Party of any provision of this Section 2.2, the other Party shall be entitled to interim and permanent injunctive relief, specific performance and other equitable remedies, in addition to any other relief to which the other Party may become entitled.
(7) If the Company is at any time a Subsidiary of another body corporate, then the BAT Group Permitted Holders shall have the right to representation on the board of directors or other similar governing body of such body corporate in the same proportion as their representation on the Board under Section 2.2(1)(a) or Section 2.2(1)(b), as the case may be, subject to the terms and condition of this Article 2, mutatis mutandis. For greater certainty, this Section 2.2(7) shall not apply to the board of directors or other similar governing body of a third party, if such third party acquires more than 50% of the Shares from time to time.
Section 2.3 Board Committees.
(1) For so long as the BAT Group Permitted Holders have the right to designate at least one Nominee pursuant to Section 2.2(1), the BAT Group Permitted Holders shall have the right to designate: (a) one voting member to the Investment Committee (or any successor Committee thereto established by the Board from time to time); and (b) one non-voting observer to any other Committee to the extent that a BAT Director Nominee is not already a voting member of such Committee. All non-voting Committee observers shall be entitled to attend all Committee meetings, and to receive all notices, correspondence and materials associated therewith, as if such non-voting Committee observers were members of the applicable Committee; provided, that they shall not: (a) hold any voting authority attributable to Committee members whatsoever; (b) count towards the quorum of the Committee for the purposes of any Committee meeting; or (c) hold any of legal responsibilities attributable to Committee members under Law.
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(2) All BAT Director Nominees shall be eligible to be appointed to all of the Committees from time to time; provided, that each such individual (a) has the expertise for the applicable Committee and
(b) meets applicable independence standards, in each case, required by Securities Laws.
Section 2.4 Nomination Procedures.
(1) The Company shall notify the BAT Group Representative (on behalf of the BAT Group Permitted Holders having a right to designate one or more Nominees under Section 2.2) of any Directors Election Meeting at least 60 days prior to the date of such Directors Election Meeting.
(2) At least 45 days, and no more than 75 days, before each Directors Election Meeting, the BAT Group Representative (on behalf of the BAT Group Permitted Holders having a right to designate one or more Nominees) will deliver to the Company (c/o the Governance and Nomination Committee) in writing the name of its respective Nominee(s) together with the information regarding such Nominee(s) (including the number of Shares beneficially owned or controlled by such Nominee) that the Company is required by the Act and Securities Laws to include in a management information circular of the Company to be sent to Company Shareholders in respect of such Directors Election Meeting, and such other information, including a biography of such Nominee(s), that is consistent with the information the Company intends to publish about Nominees as Directors of the Company in such management information circular (the "Nomination Letter").
(3) If the BAT Group Representative (on behalf of the BAT Group Permitted Holders) fails to deliver the Nomination Letter to the Company at least 45 days before the Directors Election Meeting, the BAT Group Representative shall be deemed to have designated the same BAT Director Nominee that serves (or each of the same BAT Director Nominees that serve) as a Director of the Company at such time, subject to such individual(s) satisfying the Conditions for re-election to the Board.
(4) Notwithstanding anything to the contrary in this Agreement, each BAT Director Nominee shall, at all times while serving on the Board, meet the qualification requirements to serve as a Director under the Act, Securities Laws and the Constating Documents (collectively, the "Conditions"). No BAT Director Nominee may be an individual who: (a) has been convicted of a felony or a crime involving moral turpitude; or (b) is not acceptable to the TSX, the NASDAQ, any of the Securities Regulators or the Company (acting reasonably).
(5) The BAT Director Nominee(s) shall be nominated by or at the direction of the Board or an authorized officer of the Company, including pursuant to a notice of meeting, to stand for election to the Board at the Directors Election Meeting and the Company shall solicit proxies from the holders of Shares in respect thereof, which solicitation obligation will be satisfied by delivery of a form of proxy to the holders of Shares following standard procedures and, where applicable, consistent with past practice.
(6) The Company shall: (a) nominate for election and include in any management information circular relating to any Directors Election Meeting (or submit to Company Shareholders by written consent, if applicable) each individual designated as a BAT Director Nominee under Section 2.2 in accordance with Section 2.4; (b) recommend (and reflect such recommendation in any management information circular relating to any Directors Election Meeting or in any written consent submitted to Company Shareholders for the purpose of electing Directors of the Company) that the Company Shareholders vote to elect such BAT Director Nominee(s) as a Director for a term of office expiring at the closing of the subsequent annual meeting of the Company Shareholders; (c) solicit, obtain proxies in favour of and otherwise support the election of such Nominee(s) at the applicable Directors Election Meeting, each in a manner no less favourable than the manner in which the Company supports its own Nominees for election at the applicable Directors Election Meeting; (d) take all steps which may be necessary or appropriate to recognize, enforce and comply with the rights of the BAT Group Permitted Holders under this Article 2; and (e) not take, authorize or approve any action, including the adoption of any amendments to any of its Constating Documents, that would or would reasonably be expected to, individually or in the aggregate, eliminate, limit or otherwise frustrate in any way the rights of the BAT Group Permitted Holders under this Article 2.
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(7) For greater certainty, any BAT Director Nominee that receives a number of proxy votes withheld that is greater than the votes for such BAT Director Nominee, shall submit his or her resignation to the Board promptly following the applicable Directors Election Meeting pursuant to the Company's majority voting policy.
Section 2.5 Replacement Appointment.
(1) In the event of the resignation, death or incapacity of a BAT Director Nominee that is serving on the Board, or in the event that a BAT Director Nominee that is serving on the Board at any time ceases to satisfy any of the Conditions, the BAT Group Permitted Holders shall be entitled to designate an individual satisfying each of the Conditions to replace such BAT Director Nominee to serve on the Board by delivery of a written notice by the BAT Group Representative to the Company within 45 days after the BAT Director Nominee resigns, dies or becomes incapacitated, or ceases to satisfy any of the Conditions, as applicable, and to the extent permitted by the Act and the Constating Documents, the Board shall promptly appoint such individual as a Director, or to the extent not so permitted, nominate such individual for election as a Director at the next Directors Election Meeting in accordance with Section 2.4.
(2) For the avoidance of doubt, for so long as the BAT Group Permitted Holders have the right to designate at least one Nominee pursuant to Section 2.2(1), without the BAT Shareholder's prior written consent, the Company shall ensure that no action is taken, authorized or approved by or on behalf of the Company or the Board, to remove a BAT Director Nominee from the Board, other than in the event (a) of the resignation, death or incapacity of a BAT Director Nominee that is serving on the Board, or (b) that a BAT Director Nominee that is serving on the Board at any time ceases to satisfy any of the Conditions, in each of which case the provisions of Section 2.5(1) shall apply.
Section 2.6 Director Compensation.
No BAT Director Nominee who is an officer, employee or consultant of the BAT Group will be entitled to any compensation for his or her service as a Director or member of any Committee; provided, that any individual who serves as an advisory director or consultant to the BAT Group shall be entitled to such compensation for his or her service as a Director and member of any Committee, if applicable.
Section 2.7 Director Insurance and Indemnification.
(1) The Company shall obtain and maintain customary directors' and officers' liability insurance on commercially reasonable terms.
(2) The Company and each BAT Director Nominee that has been elected or appointed to the Board, as the case may be, shall, upon request from such BAT Director Nominee, enter into a customary director indemnity agreement.
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Section 2.8 Permitted Disclosure.
Each BAT Director Nominee shall be permitted to disclose to any member of the BAT Group information about the Company and its Subsidiaries that he or she receives as a result of being a Director, subject to his or her fiduciary duties under Law; provided, that the recipient of such disclosure is directed to keep confidential and not disclose any Confidential Information, in each case, in accordance with Section 3.2.
ARTICLE 3
INFORMATION RIGHTS AND ACCESS; CONFIDENTIALITY
Section 3.1 Information Rights and Access.
Subject to compliance with anti-trust Laws, the Company shall provide to the BAT Shareholder (or such other member of the BAT Group that so requests): (1) any financial or other information relating to the Company, its Subsidiaries and their respective businesses and operations; and (2) reasonable access to the books, records, properties, employees and management of the Company and its Subsidiaries during normal business hours, upon reasonable advance notice, and without causing undue interference to the operation of the Company's and its Subsidiaries' business in the Ordinary Course), in each case, as is necessary or reasonably required by the BAT Group in order to: (a) comply with the legal, regulatory and/or tax obligations, returns or filings of the BAT Group; (b) review the use by the Company and its Subsidiaries of the Allocated Investment Proceeds; and (c) review the Company's and its Subsidiaries' compliance with the Product Development Collaboration Budget and the Subscription Agreement. Without limiting the generality of the foregoing, the Company shall and shall cause its Subsidiaries to: (i) maintain at all times complete and accurate records relating to (A) the segregated bank account in which the Allocated Investment Proceeds are held and (B) the use by the Company and its Subsidiaries of the Allocated Investment Proceeds; and (ii) provide to the BAT Shareholder (or such other member of the BAT Group that so requests) all documents (including bank statements, invoices, receipts, and other books and records), information and explanations relating to such segregated bank account and use of the Allocated Investment Proceeds by the Company and its Subsidiaries as may be reasonably requested from time to time.
Section 3.2 Confidentiality.
(1) The BAT Shareholder (and each other member of the BAT Group that receives Confidential Information of the Company and/or any of its Subsidiaries), on the one hand, and the Company (and each of its Affiliates that receives Confidential Information of the BAT Group), on the other hand, shall keep confidential and not disclose such Confidential Information in any manner whatsoever, in whole or in part, except as permitted by this Section 3.2.
(2) Notwithstanding Section 3.2(1):
(a) the BAT Shareholder may disclose Confidential Information to (i) each other member of the BAT Group and (ii) its and their respective Representatives; provided, that prior to making any disclosure to a Representative, each such Representative has been informed of the confidential nature of the Confidential Information and has been directed to hold the Confidential Information in accordance with this Section 3.2; and, provided, further, that the BAT Shareholder and its permitted transferee(s) shall remain responsible for the compliance by such other members of the BAT Group with the requirements of this Article 3;
(b) the Company may disclose Confidential Information to (i) each of its Affiliates and (ii) its and their respective Representatives; provided, that prior to making any disclosure to a Representative, each such Representative has been informed of the confidential nature of the Confidential Information and has been directed to hold the Confidential Information in accordance with this Section 3.2; and
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(c) the BAT Shareholder (and each other member of the BAT Group that receives Confidential Information of the Company and/or any of its Subsidiaries), on the one hand, and the Company (and each of its Affiliates that receives Confidential Information of the BAT Group), on the other hand, shall use commercially reasonable efforts to cause each of its Representatives that receives Confidential Information to observe the terms of this Section 3.2 in respect thereof.
(3) The disclosure restrictions contained in Section 3.2(1) do not apply to disclosure that is required by Law, any Order or any other legally binding document discovery requests. Prior to making any such disclosure, the applicable Party that received Confidential Information (or which Party's Subsidiary, Affiliate and/or Representative received Confidential Information, as applicable) shall, to the extent not prohibited by the Law, Order or legally binding request: (a) give the other Party prompt written notice of the requirement and the proposed content of any disclosure; and (b) at the other Party's request and expense, co-operate with the other Party in limiting the extent of the disclosure and in obtaining an appropriate protective order or pursuing such legal action, remedy or assurance as the other Party deems necessary to preserve the confidentiality of the Confidential Information. If a protective order or other remedy is not obtained or the other Party fails to waive compliance with Section 3.2(1), the applicable Party that received Confidential Information (or which Party's Subsidiary, Affiliate and/or Representative received Confidential Information, as applicable) may disclose only that portion of the Confidential Information that it is required to disclose and exercise commercially reasonable efforts to obtain reliable assurance that confidential treatment is given to the Confidential Information disclosed.
(4) For the avoidance of doubt, the disclosure restrictions contained in Section 3.2(1) do not apply to disclosure that is made by a Party with the prior written consent of the other Party.
ARTICLE 4
BAT GROUP REPRESENTATIVE
Section 4.1 BAT Group Representative.
(1) The BAT Shareholder (for and on behalf of the BAT Group Permitted Holders), hereby appoints John R Whitener as its representative (together with any replacement representative appointed in accordance with this Section 4.1, the "BAT Group Representative") to act in its name and on its and their behalf:
(a) with respect to all matters relating to this Agreement, including exercising any rights of the BAT Group Permitted Holders under this Agreement, executing and delivering any amendment, restatement, supplement or modification to or of this Agreement, and any waiver of any claim or right arising out of this Agreement; and
(b) in general, to do all other things and to perform all other acts, including executing and delivering all agreements, certificates, receipts, instructions and other instruments, contemplated by, or deemed advisable in connection with, this Agreement.
(2) The Company will be entitled to rely upon any document or other instrument delivered by the BAT Group Representative as being authorized or directed to be delivered by each of the BAT Group Permitted Holders, and the Company will not be liable to the BAT Group Permitted Holders for any action taken or omitted to be taken based on such reliance.
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(3) The BAT Group Permitted Holders shall be entitled to replace the BAT Group Representative at any time, and from time to time, by delivering a written notice to the Company signed by each BAT Group Permitted Holder that is at the applicable time a shareholder of the Company.
ARTICLE 5
PRE-EMPTIVE RIGHT AND TOP-UP RIGHT
Section 5.1 Pre-Emptive Right.
(1) In connection with any Distribution, all or any of the BAT Group Permitted Holders shall have the right, but not the obligation (the "Pre-Emptive Right"), exercisable in accordance with Section 5.1(3), to subscribe for up to an aggregate number of Distributed Securities, on the same terms and conditions as all other participants in the Distribution (including the same price but, in each case, excluding any underwriting commissions and discounts, to the extent not payable by the Company in relation to the securities issued on the exercise of the Pre-Emptive Right, it being agreed that the Company shall use its commercially reasonable efforts to have such charges not apply to the BAT Group Permitted Holders), mutatis mutandis, determined in accordance with the following formula:
A = B X C
For purposes of the foregoing formula, the following definitions shall apply:
A means the aggregate number of Distributed Securities for which the BAT Group Permitted Holders have the right to subscribe pursuant to the Pre-Emptive Right, expressed as a positive number;
B means the Partially Diluted Ownership Percentage of the BAT Group Permitted Holders, calculated as of immediately prior to the closing of the Distribution (for greater certainty, expressed for purposes of this formula as a number - e.g., 19.9% shall be expressed as 0.199), subject to a limit of 19.9%; and
C means the aggregate number of Distributed Securities to be issued in connection with the Distribution (assuming the conversion, exercise and/or exchange of any Convertible Securities issued pursuant thereto, if applicable), expressed as a positive number.
(2) The Company shall deliver to the BAT Group Representative a notice in writing, as soon as practicable following a determination by the Company to effect a Distribution and in no event less than 20 Business Days prior to closing of any proposed Distribution (a "Distribution Notice"), which Distribution Notice shall: (a) specify the total number and type of Distributed Securities which are being offered in the Distribution; (b) specify the rights, privileges, restrictions, terms and conditions of such Distributed Securities; (c) specify the price at which the Distributed Securities are being offered in the Distribution, to the extent known; (d) specify the maximum number of Distributed Securities for which the BAT Group Permitted Holders have the right to subscribe pursuant to Section 5.1(1) and the aggregate subscription price therefor; (e) specify the date (which shall not be less than 20 Business Days after the date on which the Distribution Notice is delivered) on which the Distribution is to be completed; and (f) state the reasons for the issuance of the Distributed Securities.
(3) The BAT Group Permitted Holders shall have the right, exercisable by the BAT Group Representative (for and on behalf of the BAT Group Permitted Holders) within 20 Business Days after receipt by the BAT Group Representative of a Distribution Notice pursuant to Section 5.1(2), by delivering a subscription notice to the Company (the "Pre-Emptive Right Subscription Notice") setting out the number of Distributed Securities for which each applicable BAT Group Permitted Holder wishes to subscribe; provided, that if the Company proposed to effect a bought deal Distribution, the BAT Group Representative shall use commercially reasonable efforts to deliver a Pre-Emptive Right Subscription Notice consistent with the customary time periods for bought deal transactions.
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(4) In the event that the Company expects to complete the applicable Distribution, no later than five Business Days prior to the expected closing date thereof, the Company shall deliver a written notice to the BAT Group Representative confirming: (a) the expected closing date thereof; and
(b) the number of Distributed Securities allocated to the applicable BAT Group Permitted Holders and the aggregate subscription price therefor. The BAT Group Representative (for and on behalf of the BAT Group Permitted Holders) shall, on or prior to the closing date of the Distribution, deliver or cause to be delivered to the Company (or as the Company may otherwise direct) a certified cheque, bank draft or wire transfer of immediately available funds in the amount of the aggregate subscription price for the Distributed Securities allocated to the BAT Group Permitted Holders, and the Company shall issue, or shall cause the issuance of, such Distributed Securities to the applicable BAT Group Permitted Holders concurrently with the closing of the Distribution.
Section 5.2 Top-Up Right.
(1) In connection with any (a) Exempt Distribution or (b) bought deal Distribution in respect of which the BAT Group Representative (for and on behalf of the BAT Group Permitted Holders) was unable to deliver a Pre-Emptive Right Subscription Notice pursuant to Section 5.1(3) prior to the execution of a definitive bought deal letter in respect thereof, all or any of the BAT Group Permitted Holders shall have the right, but not the obligation (the "Top-Up Right"), exercisable in accordance with Section 5.2(3), to subscribe for up to an aggregate number of Shares and/or Convertible Securities, as applicable, on the same terms and conditions as all other participants in the Exempt Distribution or bought deal Distribution, as applicable (including (i) for any Exempt Distribution, at the same price or, if such price is not permitted pursuant to Securities Laws, at the lowest price permitted thereunder, and (ii) for any bought deal Distribution, at the same price, but, in each case, excluding any underwriting commissions and discounts to the extent not payable by the Company in relation to the securities issued on the exercise of the Pre-Emptive Right, it being agreed that the Company shall use its commercially reasonable efforts to have such charges not apply to the BAT Group Permitted Holders), mutatis mutandis, determined in accordance with the following formula:
A = (B / 1 - C) - B
For purposes of the foregoing formula, the following definitions shall apply:
A means the aggregate number of Shares and/or Convertible Securities for which the BAT Group Permitted Holders have the right to subscribe pursuant to the Top-Up Right, expressed as a positive number;
B means the aggregate number of Shares and/or Convertible Securities issued in connection with the Exempt Distribution or bought deal Distribution, as applicable, expressed as a positive number; and
C means the Partially Diluted Ownership Percentage of the BAT Group Permitted Holders, calculated as of immediately prior to the closing of the Exempt Distribution or bought deal Distribution, as applicable (for greater certainty, expressed for purposes of this formula as a number - e.g., 19.9% shall be expressed as 0.199), subject to a limit of 19.9%.
(2) Concurrently with and, in any event, no later than two Business Days following (a) the end of each calendar quarter or (b) if the BAT Group Permitted Holders' Partially Diluted Ownership Percentage is reduced by more than 1% in the aggregate solely as a result of one or more Exempt Distributions and/or bought deal Distributions contemplated in Section 5.2(1) that have been completed since the end of the most recent calendar quarter, the closing of the most recent Exempt Distribution or bought deal Distribution, or (c) if applicable Securities Laws do not permit the exercise in full of the Top-Up Right until the passage of a prescribed period of time, the later of: (i) the time implied by (a) and (b) above; and (ii) 20 Business Days prior to the expiry of such prescribed period of time, as applicable, the Company shall deliver to the BAT Group Representative a Distribution Notice, which Distribution Notice shall: (A) specify the total number and type of Shares and/or Convertible Securities which were issued in connection with the Exempt Distribution or bought deal Distribution, as applicable; (B) specify the rights, privileges, restrictions, terms and conditions of such Shares and/or Convertible Securities; (C) specify the price at which such Shares and/or Convertible Securities were issued; (D) specify the maximum number of Shares and/or Convertible Securities for which the BAT Group Permitted Holders have the right to subscribe pursuant to Section 5.2(1) and the aggregate subscription price therefor; and (E) in the case of an Exempt Distribution, state with reasonable supporting details the specific clause of the definition of "Exempt Distribution" hereunder applicable thereto.
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(3) The BAT Group Permitted Holders shall have the right, exercisable by the BAT Group Representative (for and on behalf of the BAT Group Permitted Holders) within 30 Business Days after receipt by the BAT Group Representative of a Distribution Notice pursuant to Section 5.2(2), by delivering a subscription notice to the Company (the "Top-Up Right Subscription Notice") setting out: (a) the number of Shares and/or Convertible Securities for which the BAT Group Permitted Holders wish to subscribe; and (b) the desired closing date for the issuance of such Shares and/or Convertible Securities (which date shall not be earlier than five Business Days after receipt by the Company of the Top-Up Right Subscription Notice and not earlier than, if applicable, the passage of the prescribed period of time referenced in Section 5.2(2)).
(4) The BAT Group Representative (for and on behalf of the BAT Group Permitted Holders) shall, on or prior to the desired closing date for the issuance of the Shares and/or Convertible Securities set out in the Top-Up Right Subscription Notice, deliver or cause to be delivered to the Company (or as the Company may otherwise direct) a certified cheque, bank draft or wire transfer of immediately available funds in the amount of the aggregate subscription price in respect of such Shares and/or Convertible Securities, and the Company shall issue, or shall cause the issuance of, such Shares and/or Convertible Securities to the applicable BAT Group Permitted Holders on the desired closing date for such issuance as set out in the Top-Up Right Subscription Notice.
Section 5.3 Required Approvals.
In the event that the approval of the TSX, the NASDAQ or any other Governmental Authority is required in connection with (1) any exercise by the BAT Group Representative (for and on behalf of the BAT Group Permitted Holders) of the Pre-Emptive Right or the Top-Up Right, or (2) any issuance of Shares and/or Convertible Securities by the Company or any of its Subsidiaries to the BAT Group Permitted Holders pursuant thereto, the Company shall use its commercially reasonable efforts to obtain any such approval as promptly as practicable. For clarity, the Company shall not be required to seek shareholder approval for issuances pursuant to this Article 5 that would require shareholder approval pursuant to Securities Laws (but only to the extent that the participation of the BAT Group Permitted Holders triggers such requirement).
ARTICLE 6
PIGGYBACK REGISTRATION RIGHTS
Section 6.1 Piggyback Registration Rights.
If, at any time and from time to time from and after the date hereof, the Company proposes to make a Prospectus Distribution, whether for its own account or for the account of any Shareholders (or both), the Company shall, at that time, promptly give the BAT Group Representative written notice (the "Piggyback Notice") of the proposed Prospectus Distribution, which Piggyback Notice shall include the proposed timing of, and the price and number of Shares subject to, the proposed Prospectus Distribution. Upon the written request of the BAT Group Representative to the Company specifying that the BAT Group Permitted Holders wish to include all or a specified portion of the Registrable Securities held by the BAT Group Permitted Holders (each, a "Piggyback Shareholder") in the Prospectus Distribution, which request must be delivered by the BAT Group Representative to the Company within 15 Business Days after receipt of the Piggyback Notice (provided, that if the Company proposes to effect the Prospectus Distribution as a bought deal, the BAT Group Representative shall undertake commercially reasonable efforts to respond consistent with the customary time periods for bought deal transactions), the Company will cause the Registrable Securities requested to be qualified by such Piggyback Shareholders to be included in the Prospectus Distribution (a "Piggyback Registration"), and the procedures in Schedule C shall apply to any Piggyback Registration.
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Section 6.2 Underwriters' Cutback.
If, in connection with a Piggyback Registration, the lead underwriter or underwriters shall impose a limitation on the number of securities which may be included in any such Prospectus Distribution because, in its or their reasonable judgment, as applicable, the inclusion of securities requested to be included in such Prospectus Distribution exceeds the number of securities which can be sold in an orderly manner in such Prospectus Distribution within a price range reasonably acceptable to the BAT Group Permitted Holders, then the Company shall be obligated to include in such Prospectus Distribution such Registrable Securities to be qualified allocated on a pro rata basis as between the Company, the Piggyback Shareholders and any other Shareholders participating in the Prospectus Distribution.
Section 6.3 Withdrawal of Registrable Securities.
(1) Each Piggyback Shareholder will have the right to withdraw its request for inclusion of all or any portion of its Registrable Securities in any Piggyback Registration pursuant to Section 6.1 by the BAT Group Representative (for and on behalf of the applicable Piggyback Shareholder(s)) providing written notice to the Company of such request to withdraw; provided, that:
(a) subject to Section 6.3(2), such written notice must be delivered by the BAT Group Representative prior to the execution of the definitive bought deal letter or underwriting agreement, as applicable, with respect to such Prospectus Distribution; and
(b) such withdrawal will be irrevocable and, after making such withdrawal, such Piggyback Shareholder will no longer have any right to include such withdrawn Registrable Securities in the Prospectus Distribution pertaining to which such withdrawal was made.
(2) Notwithstanding Section 6.3(1)(a), if a Piggyback Shareholder becomes aware of a material adverse change in the condition, business and/or prospects of the Company and/or any of its Subsidiaries at any time prior to the closing of the applicable Prospectus Distribution to which a Piggyback Registration relates, such Piggyback Shareholder will have the right to withdraw its request for inclusion of all or any portion of its Registrable Securities in such Piggyback Registration pursuant to Section 6.1 by the BAT Group Representative (for and on behalf of such Piggyback Shareholder) providing written notice to the Company of such request to withdraw at any time prior to the closing of such Prospectus Distribution. If a Piggyback Shareholder validly withdraws its request for inclusion of all of its Registrable Securities from a Piggyback Registration pursuant to this Section 6.3(2), such Piggyback Shareholder shall be deemed not to have participated in or requested such Piggyback Registration.
(3) The Company shall, and shall cause its Subsidiaries to, provide notice in writing to the BAT Group Representative promptly upon becoming aware of any material adverse change in the condition, business and/or prospects of the Company and/or any of its Subsidiaries in order to enable the Piggyback Shareholders to properly exercise their withdrawal rights pursuant to Section 6.3(2).
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Section 6.4 Expenses.
All fees and expenses incurred in connection with a Piggyback Registration pursuant to Section 6.1 (excluding underwriters' discounts and commissions attributable to the Piggyback Shareholders' Registrable Securities sold in the Prospectus Distribution, if any, applicable transfer taxes attributable to the Piggyback Shareholders' Registrable Securities sold in the Prospectus Distribution, if any, and all fees and disbursements of counsel to the Piggyback Shareholders) shall be borne by the Company, including: (1) Securities Regulators, the TSX, the NASDAQ, registration, listing and filing fees relating to the Registrable Securities; (2) fees and expenses of compliance with Securities Laws; (3) printing and copying expenses; (4) messenger and delivery expenses; (5) expenses incurred in connection with any road show and marketing activities; (6) fees and disbursements of counsel to the Company; (7) fees and disbursements of all independent public accountants (including the expenses of any audit and/or "comfort" letter), and fees and expenses of any other special experts retained by or on behalf of the Company; (8) translation expenses; and (9) any other fees and disbursements of underwriters customarily paid by issuers or sellers of securities.
Section 6.5 Rule 144 Compliance.
To the extent necessary or desirable to make available to the BAT Group Permitted Holders the benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit a BAT Group Permitted Holder to sell Registrable Securities of the Company to the U.S. public without registration, the Company shall:
(1) make and keep public information available, as those terms are understood and defined in Rule 144;
(2) use best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the U.S. Securities Act and the U.S. Exchange Act; and
(3) furnish to any BAT Group Permitted Holder, so long as the BAT Group Permitted Holder owns Registrable Securities, promptly upon request, a written statement by the Company as to its compliance with the reporting requirements of Rule 144 and of the U.S. Securities Act and the
U.S. Exchange Act, a copy of the most recent annual or quarterly report of the Company (or the Canadian equivalents), and such other reports and documents so filed or furnished by the Company as such holder may reasonably request in connection with any sale of Registrable Securities without U.S. registration.
ARTICLE 7
DUE DILIGENCE; INDEMNIFICATION
Section 7.1 Preparation; Reasonable Investigation.
In connection with the preparation and filing of any Prospectus and/or Registration Statement in connection with a Piggyback Registration pursuant to Section 6.1, as applicable, the Company shall give the Piggyback Shareholders and the underwriter(s) of such Prospectus Distribution, if any, and their respective counsel, auditors and other representatives, the opportunity to participate in the preparation of the Prospectus and/or Registration Statement, as applicable, and all related documents (including each amendment thereof or supplement thereto), and shall insert therein such material furnished to the Company in writing, which in the reasonable judgment of the Company and its counsel should be included, and shall give them such reasonable and customary (1) access to the Company's books and records, (2) opportunity to discuss the business of the Company and its Subsidiaries with its officers and auditors, and (3) opportunity to conduct all due diligence which the underwriter(s), if any, and their respective counsel may reasonably require in order to conduct an investigation to enable such underwriter(s) to execute any certificate required to be executed by it or them for inclusion in the Prospectus and/or Registration Statement, as applicable and all related documents; provided, that the underwriter(s), if any, agree to maintain the confidentiality of such information in accordance with Section 3.2.
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Section 7.2 Indemnification by the Company.
(1) In connection with any Piggyback Registration pursuant to Article 6, the Company will indemnify and hold harmless, to the fullest extent permitted by Law, each Piggyback Shareholder and its Affiliates, and each of their respective directors, officers, employees, agents, shareholders, partners and underwriters, from and against any loss, liability, claim, damage and expense whatsoever (including legal fees and expenses), including any amounts paid in settlement of any investigation, order, litigation, proceeding or claim, joint or several, incurred, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Prospectus and/or Registration Statement, as applicable, or any amendment or supplement thereto, including all documents incorporated therein by reference, or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or as incurred, arising out of or based upon any failure to comply with Securities Laws (other than any failure to comply with Securities Laws by such Piggyback Shareholder or underwriter, as applicable); provided, that the Company shall not be liable under this Section 7.2(1) for any settlement of any action effected without its written consent (which consent shall not be unreasonably withheld, conditioned or delayed); and, provided, further, that the indemnity provided for in this Section 7.2(1) in respect of a Piggyback Shareholder or underwriter shall not apply to any loss, liability, claim, damage or expense to the extent incurred, arising out of or based upon any untrue statement or omission, or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to the Company by such Piggyback Shareholder or underwriter stating that such information is being provided for use in the Prospectus and/or Registration Statement, as applicable. Any amounts advanced by the Company to an Indemnified Person pursuant to this Section 7.2(1) as a result of such losses will be returned to the Company if it is finally determined by a court of competent jurisdiction in a judgment not subject to appeal or final review that such Indemnified Person was not entitled to indemnification by the Company hereunder.
(2) For greater certainty, the rights to indemnification provided in Section 7.2(1) may be exercised by each Piggyback Shareholder individually and separately from the rights to indemnification of the other Piggyback Shareholders provided in Section 7.2(1), and shall not be affected in any way by the exercise, non-exercise or waiver, in whole or in part, by any other Piggyback Shareholder of such rights to indemnification.
Section 7.3 Defence of Claim by Company.
Each Person entitled to indemnification from the Company under Section 7.2(1) (each, an "Indemnified Person") shall give or cause to be given written notice to the Company promptly after such Indemnified Person becomes aware of any claim in respect of which indemnification may be sought under Section 7.2(1); provided, that the failure or delay to so notify the Company shall not relieve the Company from any liability which it may have to the Indemnified Person pursuant to Section 7.2(1) except to the extent that the Company is prejudiced by such failure or delay, as applicable. The Company shall assume the defence of any claim, action or other proceeding giving rise to any such claim for indemnification, including the engagement of counsel selected by the Company (to the reasonable satisfaction of the Indemnified Person) and the payment of all costs, fees and expenses relating thereto. The Indemnified Person will have the right to engage its own counsel in connection with any such claim, action or proceeding, at the expense of the Indemnified Person unless the engagement of such counsel is
(1) authorized in writing by the Company in connection with the defence of such claim, action or proceeding, (2) the Company shall not have engaged counsel to take charge of the defence of such claim, action or proceeding in a reasonably timely manner, or (3) the Indemnified Person reasonably determines, based on the advice of counsel, that there may be defences available to it which are different from, or in addition to or conflict with, those available to the Company, that such claim, action or proceeding involves or could have an effect upon matters beyond the scope of the indemnity provided hereunder or such claim, action or proceeding seeks an injunction or equitable relief against the Indemnified Person or involves actual or alleged criminal activity (in which case the Company shall not have the right to direct the defence of such claim, action or proceeding on behalf of the Indemnified Person), in any of which events the costs, fees and expenses of such counsel will be borne by the Company; provided, that in no event shall the Company be required to pay the costs, fees and expenses of more than one law firm as counsel for all Indemnified Persons pursuant to this Section 7.3, unless in the reasonable judgment of any Indemnified Person a conflict of interest may exist between such Indemnified Person and any other of such Indemnified Person with respect to such claim, action or proceeding. The Company shall not, in the defence of any claim, action or proceeding assumed by the Company pursuant to this Section 7.3, except with the prior written consent of each Indemnified Person (which may not be unreasonably withheld, conditioned or delayed), consent to the entry of any judgment, or enter into any settlement, which does not include as an unconditional term thereof the giving by the claimant or plaintiff, as applicable, to such Indemnified Person of a full and final release from all liability in respect to such claim, action or proceeding.
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Section 7.4 Contribution.
If the indemnification provided for in Section 7.2 is unavailable to a Person that would have been an Indemnified Person under Section 7.2 in respect of any losses, liabilities, claims, damages and/or expenses referred to in this Article 7, then the Company shall, in lieu of indemnifying such Indemnified Person, contribute to the amount paid or payable by such Indemnified Person as a result of such losses, liabilities, claims, damages and/or expenses in such proportion as is appropriate to reflect the relative fault of the Company, on the one hand, and such Indemnified Person, on the other hand, in connection with the statement or omission which resulted in such losses, liabilities, claims, damages and/or expenses, as well as any other relevant equitable considerations; provided, that the maximum amount of liability for such a Person who would have been an Indemnified Person shall be limited to an amount equal to the net proceeds (after underwriting fees, commissions or discounts) actually received by such Person from the sale of Registrable Securities effected pursuant to the relevant Piggyback Registration. The relative fault will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact, or the omission or alleged omission to state a material fact, relates to information supplied by the Company or such Indemnified Person, and their relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission. The amount paid or payable by a Person under this Section 7.4 as a result of the losses, liabilities, claims, damages and/or expenses referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such Person in connection with any investigation or proceeding. The Company and the Piggyback Shareholder agree that it would not be just and equitable if contribution pursuant to this Section 7.4 were determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to above in this Section 7.4. No Person guilty or liable of fraudulent misrepresentation within the meaning of Section 11(f) of the U.S. Securities Act shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
Section 7.5 Survival.
The indemnification provided for under this Article 7 will survive the expiration or termination of this Agreement, and will remain in full force and effect regardless of any investigation made by or on behalf of any Indemnified Person, or any officer, director or controlling Person of such Indemnified Person, and will survive any transfer of Shares and/or Convertible Securities held by such Indemnified Person or any of its Affiliates.
Section 7.6 Piggyback Shareholder as Trustee.
The Company hereby acknowledges and agrees that, with respect to this Article 7, each Piggyback Shareholder is contracting on its own behalf and as agent for the other Indemnified Persons referred to in this Article 7. In this regard, each Piggyback Shareholder will act as trustee for such Indemnified Persons of the covenants of the Company under this Article 7 with respect to such Indemnified Persons and accepts these trusts, and will hold and enforce those covenants, on behalf of such Indemnified Persons
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ARTICLE 8
OTHER COVENANTS
Section 8.1 Standstill.
(1) From the date hereof until the second anniversary of the date hereof, the BAT Shareholder will not, and will cause its Affiliates not to, directly or indirectly, whether individually or by acting jointly or in concert with any other Person, without the express prior written consent of the Company:
(a) purchase, offer or agree to purchase any voting or equity securities of the Company or any of its Subsidiaries that would result in ownership of 19.9% or more of the voting or equity securities of the Company or any of its Subsidiaries (or rights or interests in such voting or equity securities, including convertible securities that, if exercised or converted, would result in ownership by the BAT Shareholder or any of its Affiliates, whether acting jointly or in concert with any other Person, of 19.9% or more of the voting or equity securities of the Company or any of its Subsidiaries);
(b) enter into, offer, or agree to enter into any acquisition of, or other business combination involving, the Company or any of its Subsidiaries;
(c) solicit or join in or in any way participate in a solicitation of proxies from the Company Shareholders or otherwise attempt to influence the conduct of the Company Shareholders, other than in connection with the election of the BAT Director Nominees to the Board from time to time;
(d) make any public announcement with respect to any of the foregoing; or
(e) advise, assist or encourage any other Person to do, or take any action inconsistent with, any of the foregoing.
(2) The restrictions contained in Section 8.1(1) shall automatically lapse and be of no further force or effect, and nothing contained in Section 8.1(1) or any other provision of this Agreement or any other Transaction Agreement, shall prohibit any of the actions contained in Section 8.1(1) by the BAT Shareholder or any of its Affiliates in the event that, without any breach of Section 8.1(1) on the part of the BAT Shareholder or any of its Affiliates:
(a) a third party, together with any Persons acting jointly or in concert with such third party: (i) purchases, offers or agrees to purchase any voting or equity securities of the Company or any of its Subsidiaries that would result in ownership by such third party or any of its Affiliates (together with any such Persons acting jointly or in concert with such third party or any of its Affiliates) of 19.9% or more of the voting or equity securities of the Company or any of its Subsidiaries (or rights or interests in such voting or equity securities, including convertible securities that, if exercised or converted, would result in ownership by such third party or any of its Affiliates, whether acting jointly or in concert with any other Person, of 19.9% or more of the voting or equity securities of the Company or any of its Subsidiaries); (ii) acquires assets of the Company or any of its Subsidiaries with a value of at least 20% of the aggregate value of the assets of the Company and its Subsidiaries, calculated on a consolidated basis; (iii) enters into, offers or agrees to enter into any acquisition of, or other business combination involving, the Company or any of its Subsidiaries; or (iv) makes any public announcement with respect to any of the foregoing; provided, that, in each case, the Board publicly supports and/or approves the purchase, offer, agreement or acquisition by such third party, as the case may be; or
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(b) the Collaboration Agreement is terminated in accordance with its terms by: (i) the BAT Shareholder due to (A) a material breach thereof by the Company and/or its Affiliates, (B) a Change of Control (as defined in the Collaboration Agreement) or (C) the occurrence of an Insolvency Event (as defined in the Collaboration Agreement) with respect to the Company or any of its Subsidiaries; or (ii) the Company other than due to (A) a material breach thereof by the BAT Shareholder and/or its Affiliates, or (B) the occurrence of an Insolvency Event (as defined under the Collaboration Agreement) with respect to the BAT Shareholder.
(3) For the avoidance of doubt, nothing contained in Section 8.1(1) or any other provision of this Agreement or any other Transaction Agreement shall prohibit or otherwise restrict the BAT Shareholder or any of its Affiliates from subscribing for and purchasing Shares from treasury.
Section 8.2 Transfer of Shares.
(1) From the date hereof until the first anniversary of the date hereof, the BAT Shareholder shall not sell, assign, transfer or otherwise dispose of (collectively, a "Transfer") Shares to any Person, other than:
(a) Transfers to Affiliates; provided, that the BAT Shareholder shall remain responsible for the covenants, agreements and obligations of the BAT Shareholder under this Agreement notwithstanding any such Transfer;
(b) Transfers: (i) by way of deposit under a bona fide take-over bid in respect of the Shares made in compliance with Securities Laws; or (ii) in connection with a statutory plan of arrangement or other business combination involving the Company;
(c) in the event that the Company and/or any of its Affiliates breaches any of the Transaction Agreements in any material respect and such breach is not cured within the applicable cure period set forth therein, Transfers to any Person following the expiration of such cure period;
(d) in the event that a change in Law or interpretation thereof gives rise to a reasonable prospect that the BAT Shareholder's continued holding of Shares will be in breach of such Law, Transfers to any Person following such change in Law or interpretation thereof; or
(e) in the event that the Company and/or any of its Affiliates has repeatedly or persistently acted in a manner which materially contravenes the Company's obligations in Section 8.3, Transfers to any Person following written notice delivered by the BAT Shareholder to the Company of such non-contravention.
(2) From and after the one year anniversary of the date hereof, the BAT Shareholder may Transfer all or any portion of the Shares held by it via: (a) non-prearranged trades through the facilities of the TSX; (b) bona fide widely distributed marketed transactions; or (c) pre-arranged trades only after giving the Company 10 Business Days' prior written notice of any such proposed Transfer and an opportunity to identify and arrange for one or more purchasers to acquire all (but not less than all) of the Shares proposed to be Transferred by the BAT Shareholder (the "Transfer Shares"); provided, that, (i) if the Company cannot identify and arrange one or more purchasers to acquire all (but not less than all) of the Transfer Shares within such 10 Business Day period, or
(ii) the BAT Shareholder (acting reasonably) elects not to Transfer all or any portion of the Transfer Shares to any one or more purchasers identified by the Company within such 10 Business Day period, then, in either such case, the BAT Shareholder shall have the right to Transfer all or any portion of the Transfer Shares to any one or more Persons following the expiration of such 10 Business Day period (and, for greater certainty, notwithstanding anything contained herein, the BAT Shareholder shall not be obligated to Transfer all or any portion of the Transfer Shares to any purchaser(s) identified by the Company or any other Person). [Redacted]
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Section 8.3 Compliance Matters.
(1) From and after the date hereof, the Company shall and shall cause its Subsidiaries to:
(a) comply with all Laws, including all Cannabis Laws; and
(b) use commercially reasonable efforts to comply with the policies of the BAT Group (as modified and disclosed to the Company from time to time), including the BAT Group's Standards of Business Conduct and International Marketing Principles, true, correct and complete copies of which have been provided by or on behalf of the BAT Shareholder to the Company prior to the date hereof.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES
Section 9.1 Representations and Warranties.
Each Party represents and warrants to the other Party that:
(1) it is duly formed and organized and validly existing under the Laws of its jurisdiction of incorporation, and has the corporate power and capacity to own its assets, and to enter into and perform its obligations under this Agreement in accordance with the terms hereof;
(2) this Agreement has been duly authorized, and duly executed and delivered by, such Party and constitutes a legal, valid and binding obligation of such Party enforceable against such Party in accordance with its terms (assuming the due authorization, execution and delivery thereof by the other Party), subject to all bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors' rights generally; and
(3) the execution, delivery and performance of this Agreement does not and will not contravene the provisions of such Party's constating or other organizational documents, or the provisions of any Contract to which such Party is a party or by which such Party or any of its assets may be bound.
ARTICLE 10
GENERAL PROVISIONS
Section 10.1 No Obligation to Finance.
None of the BAT Group Permitted Holders shall have any obligation to provide any financing to the Company, its Subsidiaries or any of its or their respective Affiliates, or otherwise to guarantee the fulfillment of any of their respective obligations to any other Person.
Section 10.2 Governing Law and Jurisdiction.
This Agreement shall be governed by, and construed and interpreted in accordance with, the Laws of the Province of Ontario and the federal Laws of Canada applicable therein, without regard to conflict of Laws principles. Each Party irrevocably attorns and submits to the exclusive jurisdiction of the Ontario courts situated in the City of Toronto (and appellate courts therefrom), and waives objection to the venue of any proceeding in such court or that such court provides an inappropriate forum.
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Section 10.3 Share Buybacks.
The Company shall not, without the prior written consent of the BAT Group Representative, acting reasonably, redeem, repurchase or otherwise acquire for cancellation, or offer to redeem, repurchase or otherwise acquire for cancellation, any Shares (a "Share Buyback"), where such Share Buyback would be reasonably likely to result in the BAT Group Permitted Holders beneficially owning and/or controlling, directly or indirectly, 20% or more of the voting rights attached to all of the issued and outstanding Shares.
Section 10.4 All Shares Subject to this Agreement.
The BAT Shareholder (for and on behalf of itself and each BAT Group Permitted Holder) agrees that it shall be bound by the terms of this Agreement with respect to all Shares owned and/or controlled, directly or indirectly, by the BAT Shareholder and each other BAT Group Permitted Holder from time to time.
Section 10.5 Changes in Capital of the Company.
At all times after the occurrence of any event which results in a change to the Shares and/or Convertible Securities, this Agreement will forthwith be amended and modified as necessary in order that it will apply with full force and effect, with appropriate changes, to all new securities into which the Shares and/or Convertible Securities are so changed, and the Parties will execute and deliver a supplemental agreement giving effect to and evidencing such necessary amendments and modifications.
Section 10.6 BAT Group Permitted Holders Agreement to be Bound.
Each BAT Group Permitted Holder that becomes a Company Shareholder must concurrently with becoming a Company Shareholder execute and deliver to the Company a counterpart copy of this Agreement, or a written agreement in form and substance satisfactory to the Parties, agreeing to be bound by this Agreement.
Section 10.7 Constating Documents.
So long as this Agreement shall remain in effect, subject to Laws, the Constating Documents shall accommodate and be subject to, and not in any respect conflict with, the rights and obligations set forth herein. In the event of any conflict or inconsistency between the terms of this Agreement, on the one hand, and the Constating Documents, on the other hand, the terms of this Agreement shall prevail to the extent of the conflict or inconsistency.
Section 10.8 Term and Termination.
(1) This Agreement shall come into force and effect as of the date set out on the first page of this Agreement and, except as provided below, shall continue in full force and effect until the earlier of:
(a) the date on which the BAT Group Permitted Holders cease to hold any Shares;
(b) the date on which this Agreement is terminated by the mutual consent of the Parties; or
(c) the dissolution or liquidation of the Company.
(2) Notwithstanding the valid termination of this Agreement pursuant to Section 10.8(1):
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(a) the provisions of Article 1, Section 3.2, Article 7 and Article 10 shall survive such termination and continue in full force and effect in accordance with their terms; and
(b) any rights or obligations which have accrued or arisen under this Agreement prior to the effective time of such termination shall survive such termination unimpaired in accordance with the terms hereof.
Section 10.9 Dividends and Distributions.
(1) The Company shall provide reasonable prior written notice to the BAT Group Representative, in advance of the timelines required under Securities Laws, of the proposed declaration of any dividend or other distribution on or in respect of the Shares, including the applicable record and payment dates and the proposed form of dividend or other distribution (i.e., cash, Shares and/or other property).
(2) The Parties shall discuss in good faith the manner by which the BAT Group Permitted Holders may defer their receipt of all or a portion of any dividends or other distributions declared on or in respect of the Shares held by them from time to time.
Section 10.10 Notices.
(1) Any notice, direction or other communication given regarding the matters contemplated by this Agreement (each, a "Notice") must be in writing, sent by personal delivery, courier or email, and addressed:
(a) to the Company, at:
Organigram Holdings Inc.
Bay Adelaide Centre
1250-333 Bay Street
Toronto, ON, M5H 2R2
Attention: Greg Engel, Chief Executive Officer
Email: greg.engel@organigram.ca
with a copy (which shall not constitute notice) to:
Goodmans LLP
Bay Adelaide Centre - West Tower
333 Bay Street, Suite 3400 Toronto, ON M5H 2S7
Attention: Neill May and Steve Inglis
Email: nmay@goodmans.ca and singlis@goodmans.ca
(b) to the BAT Group Representative, at:
Reynolds 401 North Main Street,
Winston-Salem NC 27101 USA
Attention: John R Whitener
Email: [Redacted]
with a copy (which shall not constitute notice) to:
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Herbert Smith Freehills LLP
Exchange House
Primrose Street
London, United Kingdom EC2A 2EG
Attention: Alex Kay
Email: alex.kay@hsf.com
Stikeman Elliott LLP
5300 Commerce Court West
199 Bay Street
Toronto, Ontario M5L 1B9
Attention: Evan Marcus and Colin Burn
Email: emarcus@stikeman.com and cburn@stikeman.com
(2) A Notice is deemed to be given and received on the date of delivery if it is a Business Day and the delivery was made prior to 4:00 p.m. (local time in place of receipt), and otherwise on the next Business Day. A Party may change its address for service from time to time by providing a Notice in accordance with the foregoing. Any subsequent Notice must be sent to the Party at its changed address. Any element of a Party's address that is not specifically changed in a Notice will be assumed not to be changed.
Section 10.11 Time of the Essence.
Time is of the essence in this Agreement.
Section 10.12 Expenses.
Except as otherwise expressly provided in this Agreement, each Party will pay for its own costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby. The fees and expenses referred to in this Section 10.12 are those which are incurred in connection with the negotiation, preparation, execution and performance of this Agreement and the transactions contemplated hereby, including the fees and expenses of legal counsel, accountants and other advisors.
Section 10.13 Severability.
If any provision of this Agreement is determined to be illegal, invalid or unenforceable by an arbitrator or any court of competent jurisdiction, that provision will be severed from this Agreement, and the remaining provisions will remain in full force and effect. Upon any such determination, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible.
Section 10.14 Entire Agreement.
This Agreement and the Subscription Agreement, and the other Contracts by and among the Parties and certain of their respective Affiliates contemplated hereby and thereby, constitute the entire agreement among the Parties and their respective Affiliates with respect to the transactions contemplated hereby and thereby, and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties and their respective Affiliates with respect to such transactions. There are no representations, warranties, covenants, conditions or other agreements, express or implied, collateral, statutory or otherwise, among the Parties in connection with the subject matter of this Agreement and the Subscription Agreement, and the other Contracts contemplated hereby and thereby, except as specifically set forth herein and therein. The Parties have not relied and are not relying on any other information, discussion or understanding in entering into and completing the transactions contemplated by this Agreement.
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Section 10.15 Successors and Assigns.
(1) This Agreement becomes effective only when executed by the Parties. After that time, it is binding on and enures to the benefit of the Parties and their respective successors and permitted assigns, as applicable.
(2) Neither this Agreement, nor any of the rights or obligations hereunder, may be assigned or transferred, in whole or in part, by the Company without the prior written consent of the BAT Shareholder. The BAT Shareholder may assign this Agreement, or any of its rights and/or obligations hereunder, to any of its Affiliates; provided, that the BAT Shareholder shall remain responsible for the covenants, agreements and obligations of the BAT Shareholder under this Agreement notwithstanding any such assignment.
Section 10.16 Third Party Beneficiaries.
Except as expressly provided in this Agreement (including Article 7), the Parties intend that: (1) this Agreement will not benefit or create any right or cause of action in favour of any Person other than (a) the BAT Group Permitted Holders, and (b) the Company; and (2) no Person other than the BAT Group Permitted Holders, on the one hand, and the Company, on the other hand, shall be entitled to rely on the provisions of this Agreement in any action, suit, proceeding, hearing or other forum. The Parties reserve their right to vary or rescind the rights granted by or under this Agreement to any Person that is not a Party, at any time and in any way whatsoever, without notice to or consent of that Person.
Section 10.17 Amendments.
This Agreement may only be amended, supplemented or otherwise modified by written agreement signed by both Parties.
Section 10.18 Waiver.
No waiver of any of the provisions of this Agreement will constitute a waiver of any other provision (whether or not similar). No waiver will be binding unless executed in writing by the Party to be bound by the waiver. A Party's failure or delay in exercising any right under this Agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a Party from any other or further exercise of that right or the exercise of any other right.
Section 10.19 Injunctive Relief.
The Parties agree that irreparable harm would occur for which money damages alone would not be an adequate remedy at law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Parties agree that, in the event of any breach or threatened breach of this Agreement by a Party, the non- breaching Party will be entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance, and the Parties shall not object to the granting of injunctive or other equitable relief on the basis that there exists an adequate remedy at law. Such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at law or equity to each of the Parties.
Section 10.20 Further Assurances.
Each Party shall promptly do, make, execute, deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the other Party may reasonably require from time to time for the purpose of giving effect to this Agreement, and the transactions contemplated hereby, and shall use commercially reasonable efforts, and take all such steps as may be reasonably within its power, to implement to their full extent the provisions of this Agreement in accordance with the terms hereof.
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Section 10.21 Counterparts.
This Agreement may be executed (including by electronic means) in any number of counterparts, each of which (including any electronic transmission of an executed signature page), is deemed to be an original, and such counterparts together constitute one and the same instrument.
[Signature page follows.]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be on the date first above
written.
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ORGANIGRAM HOLDINGS INC.
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By: |
/s/ "Greg Engel" |
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Name: Greg Engel |
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Title: Chief Executive Officer |
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BT DE INVESTMENTS INC.
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By: |
/s/ "John R. Whitener" |
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Name: John R. Whitener |
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Title: Treasurer |
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[SIGNATURE PAGE TO INVESTOR RIGHTS AGREEMENT]
Schedule A
[Redacted]
A - 1
Schedule B
[Redacted]
B - 1
Schedule C
Registration Rights Procedures
1.1 Registration Procedures.
(1) In connection with the Piggyback Registration obligations pursuant to the Agreement, the Company will use commercially reasonable efforts in accordance with the Agreement to effect the qualification for the offer and sale of the Prospectus Distribution of Registrable Securities of the Piggyback Shareholders in one or more Canadian jurisdictions, and in connection therewith, the Company will as expeditiously as possible:
(a) to the extent not already prepared and filed, prepare and file in the English language and, if required, French language, with the Canadian Securities Regulators a Prospectus in compliance with Securities Laws, relating to the Piggyback Registration, including all exhibits, financial statements and such other related documents required by the Canadian Securities Regulators to be filed therewith, and use its commercially reasonable efforts to cause the applicable Canadian Securities Regulator or Canadian Securities Regulators to issue a receipt for such Prospectus, if applicable; and the Company will furnish to the Piggyback Shareholders and the lead underwriter or underwriters, if any, copies of such Prospectus and any amendments or supplements thereto in the form filed with the Canadian Securities Regulators, promptly after the filing of such Prospectus and any amendment or supplement thereto;
(b) prepare and file with the Canadian Securities Regulators such amendments or supplements to the Prospectus as may be necessary to complete the Prospectus Distribution of all such Registrable Securities and as required under the Securities Act or under any applicable provisions of Securities Laws;
(c) notify the Piggyback Shareholders and the lead underwriter or underwriters, if any, and (if requested) confirm such advice in writing, as soon as practicable after notice thereof is received by the Company: (i) when the Prospectus or any amendment or supplement thereto has been filed or a receipt has been issued, and furnish to the Piggyback Shareholders and lead underwriter or underwriters, if any, with copies thereof; (ii) of any request by the Canadian Securities Regulators for amendments to the Prospectus or for additional information; (iii) of the issuance by the Canadian Securities Regulators of any stop order or cease trade order relating to the Prospectus or any order preventing or suspending the use of any Prospectus or the initiation or threatening of any proceedings for such purposes; and (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in jurisdiction or the initiation or threatening of any proceeding for such purpose;
(d) promptly notify the Piggyback Shareholders and the lead underwriter or underwriters, if any, when the Company becomes aware of the happening of any event as a result of which the Prospectus contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement therein (in the case of the Prospectus in light of the circumstances under which they were made) when such Prospectus was delivered not misleading, fails to constitute full, true and plain disclosure of all material facts regarding the Registrable Securities when such Prospectus was delivered or if for any other reason it will be necessary during such time period to amend the Prospectus in order to comply with Securities Laws and, in either case as promptly as practicable, prepare and file with the Canadian Securities Regulators, and furnish to the Piggyback Shareholders and the managing underwriters or underwriters, if any, a supplement or amendment to such Prospectus which will correct such statement or omission or effect such compliance;
C - 1
(e) use commercially reasonable efforts to obtain the withdrawal of any stop order, cease trade order or other order against the Company or affecting the securities of the Company suspending the use of any Prospectus or suspending the qualification of any Registrable Securities covered by the Prospectus, or the initiation or the threatening of any proceedings for such purposes;
(f) furnish to the Piggyback Shareholders and each lead underwriter or underwriters, if any, without charge, one executed copy and as many conformed copies as they may reasonably request, of the Prospectus, including financial statements and schedules and all documents incorporated therein by reference, and provide the Piggyback Shareholders and their respective counsel with a reasonable opportunity to review and provide comments to the Company on the Prospectus;
(g) deliver to the Piggyback Shareholders and the underwriters, if any, without charge, as many commercial copies of the Prospectus and any amendment or supplement thereto as such Persons may reasonably request (it being understood that the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the Piggyback Shareholders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto) and such other documents as the Piggyback Shareholders may reasonably request in order to facilitate the disposition of the Registrable Securities by such Person;
(h) on or prior to the date on which a receipt is issued for the Prospectus by the applicable Canadian Securities Regulators, use commercially reasonable efforts to qualify, and cooperate with the Piggyback Shareholders, the lead underwriter or underwriters, if any, and their respective counsel in connection with the qualification of, such Registrable Securities for offer and sale under the Securities Laws of each Qualifying Jurisdiction, as any such Person or underwriter reasonably requests in writing provided that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject;
(i) in connection with any underwritten offering enter into customary agreements, including an underwriting or agency agreement with the underwriter or underwriters, such agreements to contain such representations and warranties by the Company and such other terms and provisions as are customarily contained in underwriting or agency agreements, as applicable, with respect to secondary distributions and indemnification provisions and/or agreements substantially consistent with Article 5 of the Agreement, but in any event, which agreements will contain provisions for the indemnification by the underwriter or underwriters in favour of the Company with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Prospectus included in reliance upon and in conformity with written information furnished to the Company by any underwriter in writing;
(j) as promptly as practicable after filing with the Canadian Securities Regulators any document which is incorporated by reference into the Prospectus, provide copies of such document to the Piggyback Shareholders and their respective counsel and to the lead underwriter or underwriters, if any;
(k) file, and to not withdraw, a notice declaring its intention to be qualified to file a short form prospectus as soon as permitted by Securities Laws;
(l) use its commercially reasonable efforts to obtain a customary legal opinion, in the form and substance as is customarily given by external company counsel in securities offerings, addressed to the Piggyback Shareholders and the underwriters, if any, and such other Persons as the underwriting agreement may reasonably specify, and a customary "comfort letter" from the Company's auditor and/or the auditors of any financial statements included or incorporated by reference in a Prospectus;
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(m) furnish to the Piggyback Shareholders and the lead underwriter or underwriters, if any, and such other Persons as the Piggyback Shareholders may reasonably specify, such corporate certificates, satisfactory to the Piggyback Shareholders acting reasonably, as are customarily furnished in securities offerings, and, in each case, covering substantially the same matters as are customarily covered in such documents in the relevant jurisdictions and such other matters as the Piggyback Shareholders may reasonably request;
(n) provide and cause to be maintained a transfer agent and registrar for such Common Shares not later than the date a receipt is issued for the final Prospectus by the applicable Canadian Securities Regulators and use its best efforts to cause all Common Shares covered by the Prospectus to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
(o) participate in such marketing efforts as the Piggyback Shareholders or lead underwriter or underwriters, if any, determine are reasonably necessary, such as "roadshows", institutional investor meetings and similar events;
(p) take such other actions and execute and deliver such other documents as may be reasonably necessary to give full effect to the rights of each Piggyback Shareholder under the Agreement; and
(q) take no direct or indirect action prohibited by OSC Rule 48-501 - Trading during Distributions, Formal Bids and Share Exchange Transactions; provided, that, to the extent that any prohibition is applicable to the Company, the Company will take all reasonable action to make any such prohibition inapplicable.
(2) In connection with the Piggyback Registration obligations pursuant to the Agreement, the Company may, at its option, elect to file a Registration Statement with the SEC in order to qualify the offer and sale of Registrable Securities of the Piggyback Shareholders in the United States (and other Securities Laws or "blue sky" Laws). In such an event, the Company shall notify the Piggyback Shareholders and the lead underwriter or underwriters of such election, and this Schedule C shall apply to the filing thereof and Prospectus Distribution pursuant thereto, mutatis mutandis.
1.2. Piggyback Shareholders' Obligations.
(1) The Company may require the Piggyback Shareholders to furnish to the Company such information regarding the Prospectus Distribution of such Registrable Securities and such other information relating to the Piggyback Shareholders and their respective beneficial ownership of Shares as the Company may from time to time reasonably request in writing in order to comply with Securities Laws in each jurisdiction in which a Piggyback Registration is to be effected. The Piggyback Shareholders agree to furnish such information to the Company and to cooperate with the Company as necessary to enable the Company to comply with the provisions of the Agreement and Securities Laws. The Piggyback Shareholders will promptly notify the Company when a Piggyback Shareholder becomes aware of the happening of any event (insofar as it relates to such Piggyback Shareholder or information provided by such Piggyback Shareholder in writing for inclusion in the applicable Prospectus and, if applicable, Registration Statement) as a result of which the Prospectus and, if applicable, Registration Statement contains any untrue statement of a material fact or omits to state a material fact necessary to make the statement therein (in the case of the Prospectus and, if applicable, Registration Statement in light of the circumstances under which they were made) when such Prospectus and, if applicable, Registration Statement was delivered not misleading or, if for any other reason it will be necessary during such time period to amend or supplement the Prospectus and, if applicable, Registration Statement in order to comply with Securities Laws.
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(2) Each Piggyback Shareholder, if requested by the underwriter or underwriters of such Prospectus Distribution, if any, agrees to become bound by and to execute and deliver a lock-up agreement restricting such Piggyback Shareholder's right, for a period of time not to exceed 90 days, to: (a) transfer, directly or indirectly, any Shares or any securities convertible into or exercisable or exchangeable for such Shares; or (b) enter into any swap or other arrangement that transfers to another any of the economic consequences of beneficially ownership of Shares. Notwithstanding the foregoing, such lock-up agreement shall not apply to: (i) transfers to an Affiliate; provided, however, that in any such case, it shall be a condition to the transfer that such transferee execute an agreement stating that the transferee is receiving and holding such Shares subject to the provisions of the lock-up agreement; (ii) conversions of Shares into other classes of shares without change of beneficial ownership; (iii) transactions relating to Registrable Securities in open market transactions after the date hereof; or (iv) any Registrable Securities sold pursuant to a Prospectus and, if applicable, Registration Statement for such Prospectus Distribution.
(3) In addition, the Piggyback Shareholders shall, if required under Securities Laws, execute any certificate forming part of a Prospectus and, if applicable, Registration Statement to be filed with the applicable Securities Regulators.
(4) In connection with any underwritten offering in connection with a Piggyback Registration, the Piggyback Shareholder shall enter into customary agreements, including an underwriting or agency agreement with the lead underwriter or underwriters, such agreements to contain such representations and warranties by the Piggyback Shareholder and such other terms and provisions as are customarily contained in underwriting or agency agreements, as applicable, with respect to secondary distributions and indemnification provisions and/or agreements substantially consistent with Article 7, but in any event, which agreements will contain provisions for the indemnification by the underwriter or underwriters in favour of the Piggyback Shareholder with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Prospectus and, if applicable, Registration Statement included in reliance upon and in conformity with written information furnished to the Company by the underwriter in writing.
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March 10, 2021
BT DE INVESTMENTS INC.
and
ORGANIGRAM INC.
COLLABORATION AGREEMENT
Herbert Smith Freehills LLP
TABLE OF CONTENTS
1
2
THIS AGREEMENT is made on March 10, 2021.
BETWEEN:
(1) BT DE INVESTMENTS INC., a company incorporated and registered in the State of Delaware and whose offices are located at 103 Foulk Road, Suite 111, Wilmington, Delaware 19803 ("BAT"); and
(2) ORGANIGRAM INC., a company incorporated and registered in Canada (with corporation number 668961 and business number 822317442 RC0001) and whose registered office is at 35 English Drive, Moncton, NB E1E 3X3, New Brunswick, Canada ("OGI"),
each of which is referred to in this Agreement as a "Party" or, together, the "Parties".
RECITALS:
(A) The Parties wish to collaborate in the research and development of Future Cannabis Products (as defined below) and have agreed to do so via the PDC (as defined below), on the terms set out herein.
(B) The purpose of the PDC will be:
(i) to undertake the Development Activities (as defined below);
(ii) for each Party to gain access to, and a licence of, the other Party's rights to the Background IP (as defined below), for the purposes of undertaking the Development Activities; and
(iii) to provide to each Party access to, and a licence of, the other Party's rights to the Background IP and the PDC Developed Foreground IP (as defined below) for Exploitation (as defined below), according to the terms of the Background IP Licence and the PDC Developed Foreground IP Licence (as each term is defined below),
in each case on the terms and subject to the conditions set out in this Agreement, the Background IP Licence and the PDC Developed Foreground IP Licence.
(C) BAT and OGI Holdings (as defined below) entered into the Investor Rights Agreement and the Subscription Agreement (as each term is defined below).
(D) The Parties have each agreed to contribute their respective expertise and Know-How with respect to the PDC, on the terms set out herein.
(E) Each Party has agreed to grant to the other Party a licence of its respective rights to the Background IP, on the terms of the Background IP Licence.
(F) To reflect the shared and equal development of the PDC Developed Foreground IP and to create a framework resembling that arrangement to the extent possible, the Parties have agreed that BAT shall own the PDC Developed Foreground IP and shall grant to OGI a licence of the PDC Developed Foreground IP, on the terms of the PDC Developed Foreground IP Licence.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
Each of the following words and expressions has the following meanings, unless expressly stated otherwise:
"Acquired Background IP" has the meaning given to it in the Background IP Licence;
"Agreement" means this Agreement;
"Annual Partner Funds" means the amount allocated in the PDC Budget as the responsibility of a particular Party, in respect of the applicable financial year;
"Applicable Law(s)" means all laws, regulations, regulatory requirements and authorisations, directives, statutes, subordinate legislation, common law and civil codes of any jurisdiction, all judgments, orders, notices, instructions, decisions and awards of any court or competent authority or tribunal and all codes of practice having force of law, statutory guidance and policy notes, in each case to the extent applicable to any work carried out pursuant to this Agreement or applicable to the Parties (including each Party's Group Companies) or either of them or either Party's (or either Party's Group Companies') obligations under the Project Agreements, including the Data Protection Legislation;
"Approvals" means, together, any Marketing Authorisation(s) and/or Regulatory Approval(s);
"Background IP" means, in respect of each Party, respectively, such Intellectual Property Rights (but excluding Trade Mark Rights):
(a) that the Party, or any of the Party's Group Companies, owns or in respect of which the Party, and/or any of the Party's Group Companies, has been granted rights and, in each case, may freely and without cost, consent, authorisation, notification, obligation or any other obligation, requirement or restriction, sub-licence (excluding Acquired Background IP); or
(b) creates or develops, or is created or developed on its behalf, during the Term, that is divisible from and separate to the PDC Developed Foreground IP; and
in each case, are necessary and required by the other Party (or any of that Party's Group Companies or Representatives) solely for the purposes of the Development Activities;
"Background IP Licence" means the Background IP Licence entered into between BAT and OGI, on the Effective Date, as set out in Schedule 8;
"BAT Competitor" means each of the entities listed in Part 1 of Schedule 7, as may be reviewed in good faith and updated by mutual written agreement between the Parties (which shall not be by email), from time to time, in accordance with the terms of this Agreement;
"BAT Party" means any of BAT's Group Companies and/or any of BAT's permitted Representatives;
"Board Representative" means each individual specified in Clause 7.25, together being the "Board Representatives";
"Business Day" has the meaning given to it in the Subscription Agreement;
"Cannabis Oral Products" means:
(a) any delivery platform that is designed for:
(i) [Redacted]
(ii) [Redacted]
and in which substance the dominant active ingredient is cannabis or a cannabis extract (including, for the avoidance of doubt, all cannabinoids and hemp extracts), including:
(iii) [Redacted]; and
(iv) [Redacted]; and
(b) any related consumables and accessories;
"Cannabis Vapour Products" means:
(a) [Redacted]:
(i) [Redacted]; and
(ii) [Redacted]; and
(b) any related consumables and accessories;
"Claim" has the meaning given to it in Clause 15.4;
"Commercialisation Activities" means product stewardship, product and consumer testing, the application for, obtaining and other activities required in relation to Approvals, manufacture for sale, brand marketing, trade marketing, distribution, import, export, supply, offer for sale, sale, provision of product support and other commercialisation activities in relation to Future Cannabis Products, including arranging for any of these activities to be carried out by a Group Company or other permitted Representative;
"Commercially Reasonable Efforts" of a Party (or a Party's Group Companies) shall mean such efforts as a reasonable and prudent party, acting properly in its own commercial interest and applying its mind to its contractual obligations, would take to attempt to fulfil an obligation, but shall not include any obligation on that Party (or a Party's Group Companies) to pay cash or other value to a third party, to incur incremental costs or to take any such steps which may be commercially detrimental to that Party (or a Party's Group Companies), in any way;
"Competing Activities" means:
(a) [Redacted]
(b) [Redacted]
"Competitor" means, with respect to OGI, an OGI Competitor and, with respect to BAT, a BAT Competitor;
"Confidential Information" of a Party means all confidential information, Know-how or other information reasonably considered to be confidential because it is deemed to be secret and has been subject to reasonable steps to keep it secret (and whether in writing or otherwise and no matter in what form or what medium held or generated, recorded or preserved) disclosed by or on behalf of such Party or any of its Group Companies or Representatives or otherwise made available to the other Party or any of its Group Companies or Representatives, whether made available orally, visually, in writing, in electronic form or by any other means, regardless of whether any of the foregoing are marked "confidential" or "proprietary", and whether before or after the date of this Agreement, in connection with this Agreement, including:
(a) the terms of this Agreement, each of the other Project Agreements and any other agreement or arrangement contemplated by this Agreement or any of the other Project Agreements;
(b) the existence, nature or status of any discussions between the Parties or between the Parties, respectively, and any of the Parties' Group Companies;
(c) any information provided by one Party (or any of a Party's Group Companies) to the other under Clauses: 8.7 or 11.5.4, in relation to Improvements;
(d) any information of whatever nature (and whether or not technical) and which relates to:
(i) financial, marketing and technical information, specifications, ideas, concepts, technology, processes and knowledge, research and development; or
(ii) the business, or any other business, finances, assets, liabilities, dealings, customers, suppliers, processes, affairs, prices, discounts, margins, current trading performance or future business strategy,
of either Party, or any member of their respective Groups, from time to time; and
(e) any other information (whether or not technical) that would be regarded as confidential by a reasonable business person;
"Control" means:
(a) in the case of BAT, the beneficial ownership of twenty percent (20%) or more of the issued share capital of BAT where such term is used in reference to a change of Control in favour of a Competitor of OGI; and otherwise the beneficial ownership of more than fifty percent (50%) of the issued share capital of BAT; and
(b) in the case of OGI, the beneficial ownership of twenty percent (20%) or more of the issued share capital of OGI where such term is used in reference to a change of Control in favour of a Competitor of BAT; and otherwise the beneficial ownership of more than fifty percent (50%) of the issued share capital of OGI; or
(c) in the case of either Party, the legal power to direct or cause the direction of the general management of that Party, and controls, controlled and the expression Change of Control shall be construed accordingly;
"Costs Clauses" shall mean: (i) Clauses 9.2; 10.4 and 11.5 of this Agreement; (ii) Clauses 2.5; 5.4 and 6.2.6 of the Background IP Licence; and/or (iii) Clauses 2.6; 2.8; 4.1.2, 4.2; 4.5; 6.2.6; 6.4.5 and 6.4.7 of the PDC Developed Foreground IP Licence;
"Data Protection Legislation" means all relevant legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data and data protection (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a Party (or any of a Party's Group Companies);
"Dealing" has the meaning given to it in Clause 16.2, and "Deal" shall be construed accordingly;
"Development Activities" means scientific research, product development, product stewardship and product and consumer testing related to Future Cannabis Products, pursuant to the relevant Product Development Plan;
"Disclosing Party" has the meaning given to it in Clause 14.3;
"Dispute" means any dispute, claim, controversy or difference arising out of or in connection with this Agreement, including any question regarding its existence, validity, subject matter, interpretation, negotiation, termination or enforceability, the performance of it and any dispute, claim, controversy or difference regarding any non-contractual obligations arising out of or in connection with it;
"Dispute Notice" has the meaning given to it in Clause 35.1.1;
"Effective Date" means the date of this Agreement;
"Encumbrance" means any claim, option, mortgage, pledge, lien, charge (fixed or floating), hypothecation, equity, right to acquire, right of pre-emption, right of first refusal, title retention, security interest or other agreement or arrangement which has the same or a similar effect to the granting of security;
"Existing Background IP" has the meaning given to it in Clause 19.1.4(A);
"Existing PDC Developed Foreground IP" has the meaning given to it in Clause 19.1.3;
"Exploitation" or "Exploit" means research, development, testing, conduct of clinical trials, application for and/or obtaining Approvals in relation to Future Cannabis Products and other Commercialisation Activities, including arranging for any of these activities to be carried out by a Group Company or other permitted third party;
"FDA" means the US Food and Drug Administration;
"Final Report" means the written report prepared and agreed by the PDC Steering Group at the completion of each project under the relevant Product Development Plan, as more fully described in Clause 6.2;
"Force Majeure" in relation to either Party or any of its Group Companies or Representatives means any circumstances beyond the reasonable control of that Party or any of its Group Companies or Representatives, as applicable, including, without prejudice to the generality of the foregoing, any act of God, war, riot, civil commotion, fire, explosion, flood, adverse weather, epidemic, pandemic or other natural physical disaster, strike, lockout or other form of industrial action (other than a strike, lock-out or other form of industrial action on the part of employees of the Party, Group Company or Representative concerned) or any form of Government or supra-national authority intervention;
"Funding" means all funding associated with the Product Development Plans and the Development Activities;
"Future Cannabis Products" means: (i) Cannabis Vapour Products; (ii) Cannabis Oral Products; and (iii) any other products which the Parties may mutually agree in writing, pursuant to the terms of this Agreement;
"Future Product Development Plan" has the meaning given to it in Clause 2.3;
"Group" means, in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company (and any of the same shall be a "member of the Group");
"Group Company" means any company within any Group;
"Head of the Centre of Excellence" has the meaning given to it in Clause 7.7;
"Holding company" and "subsidiary" mean a "holding company" and "subsidiary" as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in subsections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of: (a) another person (or its nominee), whether by way of security or in connection with the taking of security; or (b) its nominee. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sub sections 1159(1)(a) and (c) to voting rights are to the members' rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights;
"Improvement" means any improvement, enhancement, modification, alteration, development, translation, derivation, amendment, alteration or other change to the technology or Intellectual Property Rights that are comprised within the PDC Developed Foreground IP and which is not subject, when acquired, generated, developed, derived, conceived or first reduced to practice, to obligations of confidence to, or any other restriction on use from, any third party, or by any Applicable Law;
"Indemnified Party" has the meaning given to it in Clause 15.6;
"Indemnifying Party" has the meaning given to it in Clause 15.6.1;
"Independent Exploitation and Commercialisation Activities" means product stewardship; product and consumer testing; research; development; testing; conduct of clinical trials; application for, obtaining and other activities required in relation to Approvals; manufacture for sale; brand marketing; trade marketing; distribution; import; export; supply; offer for sale; sale; provision of product support and other commercialisation activities, in relation to products (whether Future Cannabis Products or otherwise), including arranging for any of these activities to be carried out by a Group Company or a third party;
"Initial Product Development Plan" has the meaning given to it in Clause 2.1;
"Insolvency Event", in respect of a Party, means:
(a) the Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (or equivalent Applicable Laws);
(b) the Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that Party with one or more other companies or the solvent reconstruction of that Party, provided that if such scheme is for the purpose of inclusion of any part of that Party's share capital on any Relevant Investment Exchange, termination shall not be permitted under Clause 18.6;
(c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding-up of the Party other than for the sole purpose of a scheme for a solvent amalgamation of that Party with one or more other companies or the solvent reconstruction of that Party, provided that if such scheme is for the purpose of inclusion of any part of the Party's share capital on any Relevant Investment Exchange, termination shall not be permitted under Clause 18.6;
(d) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given, or if an administrator is appointed over the Party;
(e) a floating charge holder over the assets of the Party has become entitled to appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over the assets of the Party or a receiver is appointed over the assets of the Party;
(g) a creditor or encumbrancer of the Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within fourteen (14) days;
(h) any event occurs, or proceeding is taken, with respect to the Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in sub-paragraphs (a) to (h) above (inclusive); or
(i) the other Party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
"Intellectual Property Rights" means rights to inventions (whether patentable or not), patents, supplementary protection certificates, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off and unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including Know-how) and any other intellectual property rights and proprietary rights, including all applications for (and rights to apply for and be granted) registrations, renewals or extensions of, and rights to claim priority from, such rights, Know-how and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;
"Investor Rights Agreement" means the Investor Rights Agreement entered into between BAT and OGI Holdings, on the Effective Date;
"Invoice" has the meaning given to it in Clause 10.5;
"IP Costs" means all reasonable external costs, fees and expenses in connection with: (i) the drafting, filing, prosecution and protection of all applications for the registration of Intellectual Property Rights or supplementary protection certificate applications comprised within the PDC Developed Foreground IP; and (ii) the maintenance and extension of all registrable Intellectual Property Rights comprised within the PDC Developed Foreground IP; and (iii) the enforcement of the PDC Developed Foreground IP in connection with this Agreement or the PDC Developed Foreground IP Licence, including:
(a) the filing and prosecution of applications for and the maintenance and renewal of patents and other registrable Intellectual Property Rights;
(b) the defence and enforcement of the Intellectual Property Rights comprised within the PDC Developed Foreground IP;
(c) proceedings before any of the Canadian Intellectual Property Office, the United States Patent and Trademark Office, the UK Intellectual Property Office, the EU Intellectual Property Office, the European Patent Office or other appropriate forum for the grant of registrable Intellectual Property Rights or any appeal tribunal therefrom in any country;
(d) professional advice on intellectual property matters relating to Intellectual Property Rights comprised within the PDC Developed Foreground IP;
(e) attorney's and agent's fees and commissions; and
(f) any other expenditure which may be agreed between the Parties from time to time,
in each case on a pure costs recovery basis, with no uplift, and excluding any internal costs, fees and expenses incurred in relation to the relevant Party's (or the relevant Party's Group Companies') employees and personnel;
"Key Project Points" means an outline description of each of the following, as a minimum, in respect of and for each proposed project comprised within any Future Product Development Plan: (i) proposed scope: (ii) project brief; (iii) key deliverables; (iv) key activities expected to be undertaken by each of the Parties, respectively, and (if required) by third parties; (v) expected timings and milestones; (vi) responsible roles; and (vii) expected costings;
"Know-how" means all Materials, know-how, trade secrets and other unpatented, technical and other information which is not in the public domain, in any form (including paper, electronically stored data, magnetic media, film and microfilm), including information comprising or relating to concepts, inventions, ideas, discoveries, data, formulae, research models, specifications, methods, research plans, processes, procedures, technical information, drawings, formulae, designs for experiments, test results or reports and results of experimentation and testing (including results of research or development), project reports, information relating to the working of any product, process, invention, improvement or development, instruction and training manuals, tables of operating conditions, information relating to research and development and planning reports and safety information, including all or any equivalent or similar rights arising or subsisting in the Territory, and any information derived from any of them together with all Intellectual Property Rights in any of the foregoing, but excluding: (i) Patents; (ii) information or data contained in submissions to Regulatory Authorities and/or otherwise relating to a Party's application for grant of and maintenance of any Approvals (save insofar as relevant to the definition of Confidential Information herein and Clauses 14 (Confidentiality) and 18.6.5, for which purposes this part (ii) shall be included within the definition of Know-how); and (iii) market forecasts, lists or particulars of customers and suppliers, sales targets, sales statistics, prices, discounts, margins, future business strategy, tenders, price sensitive information and market research reports, and noting that the fact that an item is known to the public shall not be taken to preclude the possibility that a compilation including the item, and/or a development relating to the item, is not known to the public;
"Launch" means the first commercial sale of a Product developed as part of the Development Activities in the relevant market, country or region in the Territory by a Party, any Group Company of a Party or any permitted Representative of a Party and "Launching" shall be construed accordingly;
"Licences" means, together, the Background IP Licence and the PDC Developed Foreground IP Licence;
"Marketing Authorisation" means, in respect of the Future Cannabis Products, an authorisation to place a cannabis, medicinal or healthcare product on the market in the any part of the Territory, whether centrally or nationally authorised, or any equivalent authorisation granted by any Regulatory Authority in any country or region of the Territory;
"Material Breach" has the meaning given to it in Clause 18.7;
"Materials" means compounds, fragments, proteins, biologic reagents, substances, solutions and any other chemical or biological substance and any fragments, derivatives and/or progeny thereof, pharmacological, toxicological, clinical, analytical and quality control data, clinical and non-clinical trial data, reports or summaries and information contained in submissions to and information from ethics committees and any Know-how associated with any such items;
"Minor Breach" means either Party's failure to perform or comply in any material respect with any of the following Clauses (none of which shall amount to a Material Breach):
(a) Sections 3.1 (Information Rights and Access); 3.2 (Confidentiality), in the case of a substantive breach only; 5.1 (Pre-Emptive Right); 5.2 (Top-Up Right); 6.1 (Piggyback Registration Rights); 8.1 (Standstill) or 8.2 (Transfer of Shares) of the Investor Rights Agreement;
(b) Clauses 3.1; 3.2; 3.3; 3.4; 4.1; 4.2.1; 5.2; 6.1; 7.5.4; 7.18; 7.19; 8.2; 8.3; 8.6; 8.7; 8.8; 9.2; 10.7; 10.11; 11.1; 11.3; 11.5; 11.6; 11.7; 11.9; 12.1; 14.1; 14.3; 14.5; 15.8; 28; 32; 33.1 or 33.2 of this Agreement;
(c) Clauses 5.4.2 or 5.4.3 (Protection and Maintenance of Background IP); 9.1 (Limitation of Liability); 23 (Non-Solicitation); 26 (Statements and Announcements); or 27 (Compliance with Laws and Regulations) of the Background IP Licence; or Clauses 14.1; 14.3 or 14.5 (Confidentiality) of this Agreement, as incorporated into Clause 4 (Confidentiality) of the Background IP Licence; or
(d) Clauses 4.1; 4.2 or 4.5 (Protection and Maintenance of PDC Developed Foreground IP); 6.3 or 6.4.1 (Enforcement of the PDC Developed Foreground IP); 22 (Non-Solicitation); 25 (Statements and Announcements); or 26 (Compliance with Laws and Regulations) of the PDC Developed Foreground IP Licence; or Clauses 14.1; 14.3 or 14.5 (Confidentiality) of this Agreement, as incorporated into Clause 3 (Confidentiality) of the PDC Developed Foreground IP Licence;
"Minority Shareholding" means equity securities carrying nine point nine percent (9.9%) or less of the voting and/or economic interests in a legal entity;
"Net Proceeds" means revenue earned from a Third Party Assignment by BAT (or any BAT Group Company), but excluding and after the subtraction of: (i) duty, excise and other taxes that may be applicable to any such Third Party Assignment; (ii) all IP Costs incurred by BAT (and/or any BAT Group Company) over time (both current and historic), relating to or in connection with the relevant PDC Developed Foreground IP that is the subject of the Third Party Assignment; and (iii) all costs that may have been incurred, or any sums paid to OGI, by BAT (or any BAT Group Company) to release OGI's rights in respect of the relevant PDC Developed Foreground IP that is the subject of the Third Party Assignment;
"OFAC" means the Office of Foreign Assets Control of the Department of Treasury of the United States of America;
"OGI Competitor" means each of the entities listed in Part 2 of Schedule 7, as may be reviewed in good faith and updated by mutual written agreement between the Parties (which shall not be by email), from time to time, in accordance with the terms of this Agreement;
"OGI Holdings" means Organigram Holdings Inc., a company incorporated and registered in Canada (with corporation number 969981-3 and business number 804424059RC0001) and whose registered office is at 35 English Drive, Moncton, NB E1E 3X3, New Brunswick, Canada;
"OGI Party" means any of OGI's Group Companies and/or any of OGI's permitted Representatives;
"Ordinary Meetings" has the meaning given to it in Clause 7.12;
"Patents" means:
(a) all patents, utility models, certificates of invention, applications for certificates of invention, priority patent filings and patent applications, and similar statutory rights for the protection of inventions; and
(b) any renewals, divisions, continuations (in whole or in part), or requests for continued examination of any of such patents, certificates of invention and patent applications, any and all patents or certificates of invention issuing thereon, and any and all reissuances, re-examinations, extensions, divisions, renewals, substitutions, confirmations, registrations, revalidations, revisions, and additions of or to any of the foregoing,
which are comprised within PDC Developed Foreground IP;
"PDC" means the Product Development Collaboration between the Parties carried on under the terms and conditions set out in this Agreement;
"PDC Budgets" means the budgets for the expected costings related to the applicable Product Development Plan, approved by the Parties from time to time and including the Initial PDC Budget, as set out in Schedule 2;
"PDC Developed Foreground IP" means any: (i) Know-how; (ii) Intellectual Property Rights; and (ii) Improvements, that are in each case generated, developed, derived, conceived, or first reduced to practice in the course of Development Activities performed by or on behalf of either Party or both Parties, or any member of either Party's Group, pursuant to or under the terms of this Agreement, during the Term including, for clarity, any patents and patent applications relating to any territory requested by OGI under Clause 4.1.2 of the PDC Developed Foreground IP Licence;
"PDC Developed Foreground IP Licence" means the licence agreement entered into between BAT and OGI, on the Effective Date, set out in Schedule 9, pursuant to which BAT grants to OGI a licence of the PDC Developed Foreground IP, on the terms set out therein;
"PDC Mandate" means the mandate set out in Schedule 3;
"PDC Steering Group" means the committee appointed in accordance with Clause 7 of this Agreement, in order to coordinate the Development Activities;
"PDC Steering Group Member" has the meaning given to it in Clause 7.5.1; "PDC Suspension Notice" has the meaning given to it in Clause 4.5.2; "Post-Termination Competing Activities" means:
(a) [Redacted]
(b) [Redacted]
in each case, throughout the Territory;
"Product Development Plans" means the applicable Initial Product Development Plan and/or Future Product Development Plans, as approved by the Parties from time to time;
"Products" means any Future Cannabis Product or component of the same which:
(a) falls, or utilises any method or process which falls, within the scope of any of the claims of any Patents; or
(b) is made, developed or used in accordance with, embodies, incorporates or utilises, any other PDC Developed Foreground IP;
"Project Agreements" means, together: (i) the Investor Rights Agreement; (ii) the Subscription Agreement; (iii) the Background IP Licence; (iv) the PDC Developed Foreground IP Licence; and (v) this Agreement;
"Project Leader" has the meaning given to it in Clause 4.4;
"Relevant Investment Exchange" means an investment exchange recognised under Part XVIII of the Financial Services and Markets Act 2000 or the following stock markets outside the United Kingdom: the New York Stock Exchange; NASDAQ; Toronto Stock Exchange; TSX Venture Exchange; Canadian Securities Exchange; NASDAQ Canada and NEO Exchange;
"Regulatory Approval" means [Redacted]
"Regulatory Authority" means any competent governmental authority in any country or region within the Territory, including any such authority which regulates cannabis, medicines and healthcare and life sciences products, including the Medicines and Healthcare products Regulatory Agency, the European Medicines Agency, Health Canada and the FDA;
"Relevant Claim" has the meaning given to it in Clause 15.6;
"Relevant Requirements" has the meaning given to it in Clause 33.2.1;
"Representatives" means, in relation to a Party or any of its Group Companies, its or their employees, directors, officers, representatives, agents, principals, advisers, consultants, direct or indirect suppliers, permitted sub-licensees, permitted sub-contractors or other permitted third parties and/or each of their respective permitted subcontractors save that, for the purposes of: (i) Clause 33 of this Agreement; (ii) Clause 27 the Background IP Licence; and (iii) Clause 26 of the PDC Developed Foreground IP Licence (Compliance with Laws and Regulations), only, the definition of "Representatives" shall exclude suppliers and the permitted sub-contractors of permitted Representatives;
"Reserved Matters" means the non-exhaustive list of matters set out in Schedule 4, which may not be agreed, approved or decided upon by the PDC Steering Group and require the prior, written agreement and approval of both Parties, before implementation, in accordance with Clause 7.3;
"Special Meetings" has the meaning given to it in Clause 7.14;
"Standing Agenda" means an agenda to be provided in respect of each meeting of the PDC Steering Group which shall provide, as a minimum, for discussion of the topics listed in Schedule 5;
"Subscription Agreement" means the Subscription Agreement entered into between BAT and OGI Holdings, on the Effective Date;
"Term" means the indefinite duration of this Agreement, subject to the provisions of Clause 18 (Duration and Termination);
"Territory" means all regions, countries and territories of the world;
"Third Party Assignment" has the meaning given to it in Clause 16.2;
"Trade Mark Rights" means trade marks and service marks, trade names and domain names, rights in get-up, packaging and social media handles and identifiers, goodwill and the right to sue for passing off and unfair competition, including all applications for (and rights to apply for and be granted) renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;
"UK" means the United Kingdom; and
"VAT" means value added tax.
1.2 References to this Agreement and other Agreements
In this Agreement, except where the context otherwise requires:
1.2.1 a reference to this Agreement includes a reference to the Schedules to it, each of which forms part of this Agreement;
1.2.2 a reference to a Clause or Schedule (other than to a schedule to a statutory provision) is a reference to a Clause or Schedule (as the case may be) of, or to, this Agreement and reference to a paragraph is to a paragraph of the relevant Schedule;
1.2.3 the contents page and headings are for convenience only and shall not affect the interpretation of this Agreement;
1.2.4 a reference to this Agreement includes this Agreement as amended or supplemented in accordance with its terms; and
1.2.5 a reference to any agreement or other instrument (other than an enactment or statutory provision) is to that agreement or instrument as from time to time amended, varied, supplemented, substituted, novated or assigned otherwise than in breach of this Agreement.
1.3 Precedence
In this Agreement, except where the context otherwise requires:
1.3.1 subject to Clause 1.3.2, to the extent that a provision of a Schedule to this Agreement conflicts with a provision of the main body of this Agreement, the relevant provision of the main body of this Agreement takes precedence; and
1.3.2 to the extent that the terms of this Agreement conflict with the provisions of any of the other Project Agreements, the terms of this Agreement take precedence, to the extent of the inconsistency, except to the extent that the applicable Project Agreement expressly and specifically states an intent to supersede this Agreement on a specific matter.
1.4 Singular, plural and gender
Words in the singular include the plural and vice versa and a reference to one gender includes other genders.
1.5 References to persons and companies
In this Agreement, except where the context otherwise requires:
1.5.1 a reference to a person includes a reference to any individual, firm, company, government, state or agency of a state, local or municipal authority or government body or any joint venture, association or partnership (whether or not having separate legal personality);
1.5.2 a reference to a company includes any company, corporation or other body corporate wherever and however incorporated or established;
1.5.3 a reference to an individual includes that individual's estate and personal representatives; and
1.5.4 a person shall be deemed to be connected with another if that person is connected with another within the meaning of section 1122 of the Corporation Tax Act 2010.
1.6 References to time periods
In this Agreement, except where the context otherwise requires:
1.6.1 a reference to a time of day is to London, United Kingdom time;
1.6.2 a reference to a day (including within the defined term "Business Day") means a period of twenty-four (24) hours ending at midnight; and
1.6.3 any period of time is calculated exclusive of the day from which the time period is expressed to run or the day upon which the event occurs which causes the period to start running.
1.7 References to legislation and legal terms
In this Agreement, except where the context otherwise requires:
1.7.1 a reference to an enactment, EU instrument or statutory provision shall include a reference to any subordinate legislation made under the relevant enactment, EU instrument or statutory provision and is a reference to that enactment, EU instrument, statutory provision or subordinate legislation as from time to time amended, modified, incorporated or reproduced and to any enactment, EU instrument, statutory provision or subordinate legislation that from time to time (with or without modifications) re-enacts, replaces, consolidates, incorporates or reproduces it;
1.7.2 a reference to any English statute or enactment includes any equivalent or analogous laws or rules in any other jurisdiction to the extent that such jurisdiction is relevant to the transactions contemplated by this Agreement; and
1.7.3 a reference to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept includes what most nearly approximates the English legal term in any jurisdiction other than England to the extent that such jurisdiction is relevant to the transactions contemplated by this Agreement.
1.8 Includes and including
In this Agreement, except where the context otherwise requires:
1.8.1 the words and phrases "includes", "including", "in particular" (or any terms of similar effect) shall not be construed as implying any limitation; and
1.8.2 general words shall not be given a restrictive meaning because they are preceded or followed by particular examples.
1.9 Writing
A reference to writing includes any modes of reproducing words in any legible form and, except where expressly stated otherwise, shall include email.
2. PRODUCT DEVELOPMENT PLANS
2.1 The Parties have agreed an initial programme of work as described in Schedule 1 (the "Initial Product Development Plan").
2.2 The Parties have also agreed the Initial PDC Budget, as set out in Schedule 2.
2.3 The Parties acknowledge that, as a master form of agreement, this Agreement allows (but does not oblige) the Parties to propose and agree to further and additional Development Activities from time to time during the Term, through the issuance of separate Product Development Plans (each a "Future Product Development Plan"), as a Reserved Matter, without having to re-negotiate the basic terms and conditions contained in this Agreement.
2.4 Each Future Product Development Plan shall include, as a minimum, the Key Project Points and shall be subject to, and shall be deemed to incorporate by reference, all of the terms and conditions of this Agreement, in addition to the specific details set out in the applicable Future Product Development Plan. To the extent that any terms or provisions of a Future Product Development Plan conflict with the terms and provisions of this Agreement, the terms and provisions of this Agreement shall prevail to the extent of the inconsistency, except to the extent that the applicable Future Product Development Plan expressly and specifically states an intent to supersede this Agreement on a specific matter.
3. DEVELOPMENT ACTIVITIES
3.1 [Redacted].
3.2 The Parties are jointly responsible for conducting the tasks identified in the applicable Product Development Plan and the Parties shall, in each case using their respective Commercially Reasonable Efforts, complete, or procure that any respectively relevant Group Company or permitted Representative completes, such tasks by such dates and/or within the applicable timeline set out in the applicable Product Development Plan, or otherwise within a period of time which will be agreed between the Parties in writing, in each case with all skill and care, in a good scientific manner and in accordance with the terms of this Agreement, Applicable Laws and the Regulatory Approvals.
3.3 The Parties may subcontract any work relating to the Product Development Plans to any third party, on the terms set out in this Agreement, provided that any subcontract is in accordance with Applicable Laws and the Regulatory Approvals.
3.4 Each Party agrees to use Commercially Reasonable Efforts to make available to the other Party any and all information which is required for the performance of the applicable Product Development Plans.
4. PERFORMANCE OF THE DEVELOPMENT ACTIVITIES
4.1 In respect of the Development Activities each Party agrees that it shall, using Commercially Reasonable Efforts and at its own cost (except where expressly provided otherwise in this Agreement or the applicable PDC Plan or PDC Budget):
4.1.1 apply, or procure the application of, such time, attention, resources, trained personnel and skill as may be reasonably necessary for the due and proper performance of its parts of the Development Activities; and
4.1.2 provide, or procure the provision of, all computers and other equipment and resources reasonably required to perform its parts of the relevant Development Activities, where appropriate; and hold and maintain all Regulatory Approvals necessary for it to perform the Development Activities.
4.2 Without limiting Clause 4.1, OGI agrees that it shall, at its own cost (except where expressly provided otherwise in this Agreement or the applicable PDC Plan or PDC Budget) and during the Term:
4.2.1 make available, or procure that an OGI Group Company shall make available, to BAT or any BAT Party, access to such areas of OGI's (or the OGI Group's) licensed site(s) in Canada and all work spaces and laboratories as may be reasonably necessary or required by BAT or any BAT Party, for the purposes of the Development Activities and day-to-day operations under the Product Development Plans or as may be reasonably required to comply with Applicable Laws; and
4.2.2 maintain, or procure the maintenance of, its licence from Health Canada in respect of its facility in Moncton, New Brunswick, Canada.
4.3 Although the Parties shall carry out the Development Activities in accordance with their respective obligations under this Clause 4 and the applicable Product Development Plan and using Commercially Reasonable Efforts to achieve the objectives of the applicable Product Development Plan, the Parties acknowledge and agree that neither Party undertakes that the Development Activities or the conduct or undertaking of any Product Development Plan will lead to any particular conclusion and nor does it guarantee a successful outcome to the Development Activities or any Product Development Plan.
4.4 [Redacted]
4.5 [Redacted]
4.5.1 [Redacted]
4.5.2 [Redacted]
5. PERSONNEL
5.1 Each Party shall be responsible for the selection and allocation of personnel to perform its parts of the Development Activities.
5.2 Each Party shall ensure that its personnel are suitable and willing to carry out the obligations set out in the Product Development Plans, and shall ensure that the personnel have the appropriate skills and sufficient availability and capacity to perform such obligations, and that they perform their obligations with all due care and diligence, in a professional and ethical manner and in accordance with Applicable Laws, the Regulatory Approvals and other guidelines which may be agreed from time to time between the Parties.
6. RECORD-KEEPING AND REPORTING
6.1 [Redacted]:
6.1.1 [Redacted]
(A) [Redacted]
(B) [Redacted]
(C) [Redacted]
6.1.2 [Redacted]
6.2 [Redacted]
7. PDC STEERING GROUP Establishment
7.1 [Redacted]
Mandate
7.2 Subject to Clause 7.3 and save with respect to the Reserved Matters, the PDC Steering Group shall operate in accordance with the PDC Mandate.
7.3 Notwithstanding Clause 7.2, the PDC Steering Group shall not be entitled to decide upon, approve and/or agree any of the Reserved Matters, which require the prior, written agreement and approval of both Parties, before implementation.
7.4 The PDC Steering Group shall be entitled to make amendments to the Product Development Plans under the terms of Clause 7.2 and subject to Clause 7.3. Save where otherwise provided in this Agreement, the PDC Steering Group shall have no authority to amend this Agreement, and no decision or conduct of the PDC Steering Group shall be deemed to constitute an amendment or waiver under this Agreement.
Number of members
7.5 The PDC Steering Group shall comprise six (6) representatives (or their nominated alternatives):
7.5.1 three (3) of whom will be appointed by BAT (or by a Group Company or Companies of BAT) and three (3) of whom will be appointed by OGI (each being a "PDC Steering Group Member"); and
7.5.2 each Party shall be entitled, subject to the approval of the other Party (not to be unreasonably withheld, conditioned or delayed), to change its PDC Steering Group Members on giving not less than thirty (30) calendar days' notice in writing to the other Party,
provided that:
7.5.3 no PDC Steering Group Member shall be employed or otherwise have any connection with a Competitor of either Party;
7.5.4 each PDC Steering Group Member shall be appropriate for the primary function of the PDC Steering Group from time to time, in terms of their seniority, availability, function in their respective organisation, training and experience; and
7.5.5 each Party shall ensure that it arranges for an appropriate individual with expertise in intellectual property rights to attend any applicable meetings of the PDC Steering Group at which it considers that guidance on specialist matters relating to intellectual property rights will be required;
[Redacted]
7.6 [Redacted]
[Redacted]
7.7 [Redacted]
Proxies
7.8 Each PDC Steering Group Member may appoint a proxy to attend a meeting of the PDC Steering Group in their place if they are unable to attend due to illness, holiday or some other short term commitment.
7.9 Notice of an intention to appoint a proxy must be circulated by the PDC Steering Group Member in question to the remaining PDC Steering Group Members not less than twenty- four (24) hours in advance of the proposed PDC Steering Group meeting date and time or, if the event preventing the PDC Steering Group Member from attending the meeting occurs within this twenty-four (24) hour period, the PDC Steering Group Member shall give as much notice as they are able to, in the circumstances.
7.10 The provisions of this Clause 7 and the remainder of this Agreement, as applicable, apply to proxies as they do to PDC Steering Group Members.
[Redacted]
7.11 [Redacted]
[Redacted]
7.12 [Redacted]
7.13 The PDC Steering Group shall meet at such other times as may be necessary or reasonably requested by either of the Parties.
7.14 [Redacted]
7.15 [Redacted]
7.16 [Redacted]
7.17 The PDC Steering Group Chair is responsible for taking minutes of any decisions made at any meeting of the PDC Steering Group.
7.18 The PDC Steering Group Members shall, as a minimum, discuss fully and give proper consideration to each agenda item during each and every meeting of the PDC Steering Group. Each PDC Steering Group Member shall use their reasonable efforts to answer, either during the meeting or, if necessary, after the meeting, any questions that the other PDC Steering Group Member(s) or other Party's representatives may pose during a meeting of the PDC Steering Group.
7.19 [Redacted]
[Redacted]
7.20 [Redacted]
[Redacted]
7.21 [Redacted]
7.22 [Redacted]
[Redacted]
7.23 [Redacted]
7.24 [Redacted]
[Redacted]
7.25 [Redacted]
7.26 [Redacted]
8. PROVISION OF TECHNICAL AND OTHER ASSISTANCE
8.1 Any information disclosed under this Clause 8 shall be used by the applicable Party solely for the purpose of carrying out the Development Activities during the Term.
8.2 Each Party will use Commercially Reasonable Efforts to provide to the other Party (or procure such provision of) the Materials specified in the applicable Product Development Plans or which a Party notifies the other Party it requires to undertake the tasks and obligations within the Development Activities assigned to it and shall grant to the other Party a non-exclusive, perpetual, non-transferable, royalty-free licence to use the Materials solely for the purposes of the Development Activities for the Term, subject to the terms and conditions set out in Clauses 14 (Confidentiality) and 18 (Duration and Termination) and the Licences, as applicable.
8.3 Each Party shall comply with any Applicable Laws, any applicable Regulatory Approvals and any written instructions issued by the other Party with respect to the storage, handling, transportation, use and/or disposal of such Materials. Without limitation to the foregoing, the other Party shall keep the Materials in a secure environment, protected against theft, damage, loss, misuse and unauthorised access and in compliance with any security or storage requirements specified by the other Party or in the applicable Product Development Plan.
8.4 Each Party's rights to use the Materials shall cease at the end of the Term, in accordance with Clause 18 (Duration and Termination) and each Party shall return to the other Party or at the other Party's direction destroy all remaining Materials and shall certify in writing that the same has been done.
8.5 Each Party acknowledges that the other Party's Materials are supplied on an "as is" basis. To the maximum extent permitted at law, all representations, undertakings, warranties, terms and conditions that might but for this Clause 8.5 have been implied or incorporated into this Agreement with respect to the Materials, whether by statute, common law or otherwise, are expressly excluded (including any implied terms that the Materials are of satisfactory quality and/or fit for purpose).
8.6 As soon as reasonably possible following its identification in each case, during the Term, each Party shall disclose and make available to the other Party:
8.6.1 such of that Party's Background IP, for the purposes of the Development Activities (using Commercially Reasonable Efforts to do so); and
8.6.2 in the form of reports to the PDC Steering Group, all PDC Developed Foreground IP, as it arises.
8.7 If either Party makes, creates, develops, devises or discovers any Improvement during the Term, such Party shall, to the extent that it is not prohibited by law or by any obligation to any other person (other than to a Group Company), promptly notify the other Party in writing giving details of the Improvement, and shall, if the other Party so requests, provide such further information as is reasonably required to be able to evaluate the Improvement effectively.
8.8 In the event that one Party's personnel visit the other Party's premises or a location determined by the other Party, such personnel shall be furnished by the other Party with suitable facilities, services, equipment, tools and appropriate training, as applicable, to enable proper and efficient performance of the first Party's duties.
8.9 Any of a Party's personnel sent to the other Party's premises to provide technical or other assistance in accordance with Clause 8.8 shall not be considered for any purpose to be employees, agents or representatives of the other Party nor shall they assume any responsibility for the work they carry out, save as specified in Clause 5.2.
9. APPROVALS
9.1 [Redacted]
9.2 [Redacted]
9.3 [Redacted]
9.4 [Redacted]
10. FUNDING AND INVOICING
10.1 All Funding shall be provided by the Parties on an equal basis unless otherwise agreed in writing between the Parties, as set out and agreed in the PDC Budgets.
10.2 No Party will be required to provide funding in excess of the Annual Partner Funds.
10.3 [Redacted]
10.4 Except to the extent otherwise provided for in the applicable PDC Budget, or any of the Project Agreements, each Party shall be responsible for its own costs incurred in connection with the PDC, including all costs of labour and relevant employees. Where this is not provided for in the applicable PDC Budget, or the Project Agreements, the Parties shall discuss and agree in advance of the commencement of and, where necessary, during any project or task which forms part of the PDC, their respective responsibilities for the costs of materials and samples, and any costs relating to the procurement or conversion of machinery or equipment.
10.5 [Redacted]
10.6 [Redacted]
10.7 In respect of each Invoice issued by one Party to the other Party, the receiving Party may, in its discretion:
10.7.1 [Redacted]
10.7.2 [Redacted]
10.8 [Redacted]
Foreground IP and OGI use such Credits during the Term, fifty percent (50%) of the portion of the refundable SR&ED investment tax credits earned (or, if non-refundable, fifty percent (50%) of the utilisation benefit derived by OGI) shall be credited to BAT within the earlier of: (a) forty-five (45) calendar days of cash receipt by OGI; or (b) within twelve (12) months of the fiscal year end date.
10.9 Payments made under this Agreement are inclusive of VAT and any other taxes and duties.
10.10 Each Party shall be solely responsible for all taxes, national insurance or other withholdings or contributions which may be payable as a result of the receipt of any monies paid or payable to it in respect of the Development Activities.
10.11 Subject to a Party's rights to credit under Clause 10.7, if a Party fails to make any payment due to the other Party under this Agreement by the due date for payment, then the defaulting Party shall pay interest on the overdue amount at the rate of three percent (3%) per annum above the base rate of Barclays Bank PLC from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The defaulting Party shall pay the interest together with the overdue amount.
10.12 Save as expressly provided in this Clause 10, all amounts due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by Applicable Laws).
11. INTELLECTUAL PROPERTY RIGHTS
11.1 In accordance with and subject to Clauses 8.6.1 and the remainder of this Clause 11, each Party shall give full disclosure to the other Party of all of its Background IP.
11.2 All Background IP (and rights to Background IP) is/are and shall remain the exclusive property of the Party owning it (or, where applicable, the Group Company or third party from whom that Party's right to use the Background IP has derived) and nothing in this Agreement or the Licences shall operate to transfer the ownership (whether legal or beneficial) of any Background IP of one Party (or any of one Party's Group Companies or any third parties) to the other Party.
11.3 Each Party has agreed to grant to the other Party a licence of its rights to the Background IP, on the terms and subject to the conditions set out in the Background IP Licence.
11.4 The Parties hereby agree that all rights, title and interest in and to the PDC Developed Foreground IP shall be owned by (and, to the extent required, assigned and transferred to) BAT, for the full duration of such rights in the Territory, and that BAT shall grant to OGI a licence of the PDC Developed Foreground IP, on the terms and subject to the conditions set out in the PDC Developed Foreground IP Licence. Without limiting the foregoing, OGI hereby irrevocably assigns, and will assign (or procure the assignment), to BAT, its successors and assigns, all right, title and interest in and to the PDC Developed Foreground IP, including all Intellectual Property Rights therein.
11.5 OGI shall, or shall procure that its applicable Group Companies shall:
11.5.1 at BAT's cost, execute all documents and assignments and do all such things as may be reasonably necessary to establish or perfect BAT's title to the PDC Developed Foreground IP or to register BAT as the owner of such registrable rights; and
11.5.2 use Commercially Reasonable Efforts to procure that, so far as is legally permissible:
(A) all PDC Developed Foreground IP made, created, devised or developed by any OGI Party or which may vest in any participants in any trials or studies carried out by OGI or any OGI Party in respect of or in connection with the Development Activities shall, directly or indirectly, vest in or be assigned to BAT;
(B) all OGI Parties execute all documents and assignments and do all such things as may be necessary to establish or perfect BAT's title to such PDC Developed Foreground IP or to register BAT as the owner of such registrable rights; and
(C) take reasonable steps to enforce. and shall not waive or release, the provisions set out in this Clause 11.5.2, without the prior written consent of BAT;
11.5.3 disclose all such PDC Developed Foreground IP in writing to BAT, in accordance with Clause 8.6.2; and
11.5.4 disclose all Improvements in writing to BAT, in accordance with Clause 8.7, during the Term. For the avoidance of doubt, in the event this Agreement is terminated pursuant to Clause 18 (Duration and Termination), this obligation on the OGI Parties will come to an end and, following termination, no OGI Party will be obliged to: (i) disclose any Improvements to BAT; or (ii) grant an exclusive licence or assign to BAT its rights (in whole or in part) to any Improvements it makes thereafter, as BAT's licensee.
11.6 During the Term, BAT shall, or shall procure that its applicable Group Companies shall, use Commercially Reasonable Efforts to procure that, so far as is legally permissible:
11.6.1 all PDC Developed Foreground IP made, created, devised or developed by any BAT Party or which may vest in any participants in any trials or studies carried out by BAT or any BAT Party in respect of or in connection with the Development Activities shall, directly or indirectly, vest in or be assigned to BAT, and that BAT is duly authorised to grant to OGI a licence of such rights, as contemplated under the Project Agreements;
11.6.2 BAT or BAT's Group Companies and/or Representatives execute all documents, assignments or licences and do all such things as may be necessary to establish or perfect BAT's title or rights to such PDC Developed Foreground IP or to register BAT as the owner of such registrable rights; and
11.6.3 take reasonable steps to enforce, and shall not waive or release, the provisions set out in this Clause 11.6, without the prior written consent of OGI.
11.7 To the full extent permissible by Applicable Laws, each Party shall procure from its Group Companies and its (or any of its Group Companies') respective Representatives (including, in the case of OGI, from OGI Representatives) irrevocable waivers of all non-assignable rights, including moral rights arising as a result of the Development Activities (including any such rights in and to the Future Cannabis Products or the PDC Developed Foreground IP), in favour of BAT, its successors and assigns.
11.8 Confidential Information provided by either Party to the other Party under this Clause 11 shall be subject to the provisions of Clause 14 (Confidentiality).
11.9 Each Party shall refrain from any action prejudicial to the subsistence of the Background IP and/or PDC Developed Foreground IP and from action prejudicial to the assignments in Clause 11.5.1 of this Agreement, without prejudice to its right to challenge the validity of any such Background IP and/or PDC Developed Foreground IP.
11.10 The Parties will use Commercially Reasonable Efforts (including by conducting searches of all relevant public registers), during the course of the Development Activities, to ensure that the Parties' use of the PDC Developed Foreground IP will not infringe the rights of any third party.
12. COMMERCIALISATION
12.1 Each Party and its respective Group Companies may Exploit Future Cannabis Products and/or the PDC Developed Foreground IP:
12.1.1 with complete commercial freedom, at their discretion and as they see fit; and
12.1.2 under any of their own respective Trade Mark Rights, in each case subject to the terms of Clauses 14 (Confidentiality), 16 (Assignment and Other Dealings), 17 (Restrictive Covenants), 18 (Duration and Termination), 19 (Effect of Termination) of this Agreement and as such applicable Clauses have been incorporated by reference into each of the Licences and provided that:
12.1.3 each Party (and its respective Group Companies, where applicable) shall comply with all Applicable Laws and Approvals in respect of the same;
12.1.4 each Party (together with its respective Group Companies, where applicable) shall take the sole commercial and legal risk in respect of its Independent Exploitation and Commercialisation Activities; and
12.1.5 each Party (together with its respective Group Companies, where applicable) is individually responsible for and shall take the sole commercial and legal risk in respect of its use of the other Party's Background IP and the PDC Developed Foreground IP in connection with the Development Activities and its Independent Exploitation and Commercialisation Activities.
12.2 [Redacted]
13. WARRANTIES
13.1 Each of the Parties warrants that as at the Effective Date, and throughout the Term, it has and shall have, full power and authority to carry out the actions contemplated under this Agreement, and the Licences, or to procure their carrying out, and that its entry into and performance under the terms of this Agreement and the Licences, including that it holds all required Approvals and will not cause it to be in breach of any obligations to a third party.
13.2 BAT warrants that:
13.2.1 it holds or, to the extent applicable, has secured from applicable BAT Group Companies such rights as are required to allow it to perform its obligations under this Agreement and each of the Licences and that it will not, throughout the Term, take any steps which prevent it from being able to do so (save as otherwise expressly permitted under the terms of this Agreement); and
13.2.2 it holds or, to the extent applicable, has secured from applicable BAT Group Companies, such rights as are required to grant to OGI the licensed rights under each of the Licences, and it has not granted, and is not under any obligation to grant, to any third party any licence, lien, option, Encumbrance, or other contingent or non-contingent right, title, or interest in or to the Background IP or the PDC Developed Foreground IP, that conflicts with the licences granted to OGI under either of the Licences (save as otherwise expressly permitted under the Licences, or either of them).
13.3 OGI warrants that:
13.3.1 it holds or, to the extent applicable, has secured from applicable OGI Group Companies such rights as are required to allow it to perform its obligations under this Agreement and each of the Licences and that it will not, throughout the Term, take any steps to prevent it from being able to do so (save as otherwise expressly permitted under the terms of this Agreement); and
13.3.2 it holds or, to the extent applicable, has secured from applicable OGI Group Companies, such rights as are required to grant to BAT the licensed rights under the Background IP Licence, and it has not granted, and is not under any obligation to grant, to any third party any licence, lien, option, Encumbrance, or other contingent or non-contingent right, title, or interest in or to the Background IP or the PDC Developed Foreground IP, that conflicts with the licences granted to BAT under either of the Licences (save as otherwise expressly permitted under the Licences, or either of them).
13.4 Nothing in this Agreement shall constitute any representation or warranty by either Party that:
13.4.1 any Background IP or PDC Developed Foreground IP is valid or relevant to the Future Cannabis Products or the Development Activities;
13.4.2 any application for registration of any Background IP or PDC Developed Foreground IP shall proceed to grant or, if granted, shall be valid; or
13.4.3 the exercise by either Party of the rights granted to each of them, respectively and as applicable, in the Licences will not infringe the rights (including Intellectual Property Rights) of any person.
13.5 Except where expressly provided otherwise in any of the Project Agreements, neither Party, nor any of a Party's Group Companies, shall be under any obligation:
13.5.1 to file, prosecute, maintain or extend any Background IP or PDC Developed Foreground IP; or
13.5.2 to prosecute or defend any legal proceedings, whether for infringement or otherwise, in respect of any Background IP or PDC Developed Foreground IP.
14. CONFIDENTIALITY
14.1 Each Party shall comply with applicable industry best practice for data security and maintaining confidentiality and shall take appropriate measures to maintain confidentiality in respect of any Background IP or PDC Developed Foreground IP that it makes available to any permitted third party for any permitted reason (including for the purposes of any permitted licence arrangement or Exploitation), in accordance with the terms of this Agreement.
14.2 Each Party shall, and shall procure that their Group Companies and Representatives shall, before and after the expiry or termination of this Agreement:
14.2.1 keep the Confidential Information of the other Party confidential and not disclose such Confidential Information to any third party except as permitted by Clauses 14.3 and 14.4; and
14.2.2 use the Confidential Information only for the purposes of exercising or performing its rights and obligations under this Agreement or any of the other Project Agreements and any other agreement or arrangement contemplated by the Project Agreements;
Disclosure to Representatives
14.3 Subject to Clause 14.4, Clause 14.2 shall not prevent a Party (the "Disclosing Party") from disclosing any Confidential Information to any of its Group Companies or Representatives to the extent reasonably required for purposes connected with this Agreement, any of the other Project Agreements or any other agreement or arrangement contemplated by the Project Agreements, provided that the Disclosing Party:
14.3.1 informs the Group Companies or Representatives concerned of the confidential nature of the Confidential Information; and
14.3.2 procures that the Group Companies or Representatives concerned observe the restrictions contained in this Clause 14.
Permitted disclosures
14.4 Clause 14.2 shall not prevent a Disclosing Party or its Group Companies or Representatives from disclosing any Confidential Information:
14.4.1 pursuant to the terms of this Agreement;
14.4.2 subject to Clause 14.5:
(A) if the other Party has given prior written approval to the disclosure;
(B) that was known or available on a non-confidential basis to a Party or any of its Group Companies or Representatives before it was disclosed to it by the other Party or any of its Group Companies or Representatives;
(C) which is disclosed to the Disclosing Party or the relevant Representative by a third party who is not in breach of any undertaking or duty as to confidentiality whether express or implied;
(D) to the extent required by either Applicable Law or for the purposes of arbitral or judicial proceedings arising out of or in connection with this Agreement, any of the other Project Agreements or any other agreement or arrangement contemplated by the Project Agreements;
(E) a Party is required to disclose by law, court order or any governmental or regulatory authority (including, for example, any disclosure required by any Regulatory Authority when applying for an Approval or by any relevant intellectual property registry), provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible and takes into account the reasonable requests of the other Party in relation to the content of such disclosure;
(F) a Party is required to disclose by the regulations of any stock exchange or regulatory or supervisory authority to which the Disclosing Party or the relevant Representative is subject (whether or not having the force of law but, if not having the force of law, being of a type with which persons to which it applies are accustomed to comply);
(G) a Party is required to disclose to any tax authority to the extent reasonably required for the purposes of the tax affairs of the Party concerned or a member of its Group;
(H) a Party is required to disclose in order to effect, or take the benefit of, Clause 2.5 of the Background IP Licence and/or Clauses 2.6 or 2.7 of the PDC Foreground IP Licence, subject to the terms of Clause 2.6 of the Background IP Licence and Clause 2.9 of the PDC Developed Foreground IP Licence, as applicable; or
(I) which is information contemplated in Clause 16.2 that a prudent prospective purchaser of the relevant rights might reasonably require to know and which is disclosed to any such person pursuant to bona fide negotiations for the contemplated transaction, and for this purpose "bona fide negotiations" shall mean negotiations for an arm's length sale to such a prudent prospective purchaser, provided that:
(1) before any information is disclosed, the intended recipient of such information shall have given a confidentiality undertaking (in terms which are no less strict than this Clause 14) to the Disclosing Party; and
(2) before any information is disclosed, the Disclosing Party shall have given notice to the other Party specifying the information which is to be disclosed and taken such steps as the other Party may reasonably require in order to enable it to mitigate the effects of, or avoid the requirements for, any such disclosure;
(3) and further provided that no information shall be disclosed pursuant to this Clause 14.4.2 to any Competitor of either Party, without the prior written consent of the other Party;
14.4.3 which is, or becomes available, in the public domain otherwise than by:
(A) breach by the Disclosing Party of this Agreement;
(B) failure by any of the Disclosing Party's Group Companies or Representatives to observe the restrictions contained in this Clause 14; or
(C) breach by the Disclosing Party or any of its Group Companies or Representatives of any other undertaking of confidentiality howsoever arising.
14.5 The relevant Party will immediately inform the other Party of the full circumstances of any disclosure upon becoming aware that Confidential Information has been disclosed in breach of the terms of this Agreement.
14.6 The provisions of this Clause 14 shall remain in force notwithstanding expiry or earlier termination of this Agreement.
14.7 Notwithstanding any other obligation contained in this Agreement, each Party shall be entitled to retain a copy or copies of the other Party's Confidential Information for the purposes of abiding by its legal obligations and in complying with its established document retention policies (provided that such Party shall notify the other Party in writing of such retention and shall treat such retained Confidential Information in accordance with the obligations imposed upon it by this Clause 14.
15. LIABILITY, INDEMNITY AND INSURANCE
15.1 The Parties acknowledge that the work being carried out by or on behalf of each Party as part of the Development Activities is inherently unpredictable and, provided that it has complied with its relevant obligations under each of the Project Agreements, neither Party shall have any liability for any failure to achieve any desired or anticipated result in relation to the Development Activities.
15.2 Each Party acknowledges that:
15.2.1 the technology contemplated to be comprised within the Background IP and the PDC Developed Foreground IP is at an early stage of development;
15.2.2 any results, conclusions and statements comprised within the Background IP and/or within the PDC Developed Foreground IP cannot be guaranteed and accordingly are licensed on an "as is" basis;
15.2.3 the use and interpretation of the Background IP and PDC Developed Foreground IP requires specialist skill and knowledge;
15.2.4 it has that skill and knowledge and undertakes that it will exercise that skill and knowledge and appropriate judgment when using the Background IP and the PDC Developed Foreground IP;
15.2.5 it shall be solely responsible, as against the other Party, for any opinions, recommendations, forecasts or other conclusions made or actions taken by it or any of its Group Companies or Representatives based (wholly or in part) on the Background IP or the PDC Developed Foreground IP, unless otherwise set out in this Clause 15; and
15.2.6 it is in the best position to ascertain any likely loss it may suffer in connection with this Agreement, that it is therefore responsible for making appropriate insurance arrangements to address the risk of any such loss and that the provisions of this Clause 15 are reasonable in these circumstances.
15.3 To the fullest extent permitted by law:
15.3.1 neither Party shall be liable to the other Party for any costs, expenses, loss or damage (whether direct, indirect or consequential and whether economic or other) arising from the other Party's exercise of the rights granted to it under the Licences, provided that it has complied with its obligations under this Agreement and the Licences;
15.3.2 neither Party shall be liable to the other Party for any costs, expenses, loss or damage (whether direct, indirect or consequential and whether economic or other) arising out of the way in which the other Party, its employees, consultants or agents chooses to exercise its discretion relating to any of the activities under Clauses 9.1 or 9.4 (Approvals) or 11 (Intellectual Property Rights), provided that it has complied with its obligations under this Agreement and the Licences; and
15.3.3 notwithstanding that the Parties have agreed to share information concerning data or analyses derived from activities undertaken under the terms of this Agreement, pursuant to the terms hereof, each Party is nevertheless individually responsible for the satisfaction of its (and its Group Companies' and Representatives') own duty of care and product stewardship decisions relating to product safety and quality when conducting Commercialisation Activities (or otherwise commercialising or utilising any activities undertaken under the terms of this Agreement and the Licences). Neither Party shall be responsible or liable to the other Party, in any way, in respect of the other Party's use of any such data or analyses for the purposes of satisfying its duty of care in relation to the safety and quality of any products or technologies when conducting Commercialisation Activities (or otherwise commercialising or utilising any activities undertaken under the terms of this Agreement and the Licences);
15.3.4 any warranties, conditions and other terms implied by statute or common law are excluded from this Agreement, except as expressly provided in this Agreement.
15.4 [Redacted]
15.5 [Redacted]
15.6 [Redacted]
15.6.1 [Redacted]
15.6.2 [Redacted]
15.7 [Redacted]
15.8 [Redacted]
15.9 [Redacted]
15.10 Nothing in this Agreement shall have the effect of excluding or limiting any liability for death or personal injury caused by negligence or for fraud (including fraudulent misrepresentation).
15.11 The provisions of this Clause 15 shall remain in effect notwithstanding termination or expiry of this Agreement.
16. ASSIGNMENT AND OTHER DEALINGS
16.1 Subject to Clause 17 (Restrictive Covenants) of this Agreement and Clause 13 of the Background IP Licence (Right of First Refusal), OGI shall not, other than to an OGI Group Company, without the prior written consent of BAT (such consent not to be unreasonably withheld or delayed), assign, transfer, dispose of, create any Encumbrance in relation to or deal in any other manner with any of its rights or obligations (in whole or in part) under this Agreement and, in either case, only provided that the assignee, transferee, mortgagee, chargee or other relevant party undertakes in writing to BAT to be bound by the obligations of OGI under this Agreement. For the avoidance of doubt (and subject to the terms of the Project Agreements), this Clause 16.1 shall not affect OGI's rights to deal in any such manner with its rights in its own Background IP, nor its own rights in and to the PDC Developed Foreground IP.
16.2 [Redacted]
16.3 In the event of a Third Party Assignment, OGI shall be entitled to fifty percent (50%) of any Net Proceeds of such Third Party Assignment, to the extent that the Net Proceeds relates specifically to the PDC Developed Foreground IP, with the valuation of the Net Proceeds to be agreed between the Parties in writing or, if not agreed, to be determined by an independent accountant to be identified and agreed between the Parties.
16.4 Notwithstanding Clause 14 (Confidentiality) of this Agreement, but subject, in each case, to the obligations under Clauses 14.1; 14.3 and 14.5, either Party when assigning or dealing with any or all of its rights under this Agreement may disclose to a permitted proposed assignee, transferee, mortgagee, chargee or other relevant party any information in its possession that relates to this Agreement, the other Project Agreements or their subject matter, the negotiations relating to it and the other Party which is reasonably necessary to disclose for the purposes of the proposed assignment or other dealing, provided that no disclosure pursuant to this Clause 16.4 shall be made until notice of the identity of the proposed assignee, transferee, mortgagee, chargee or other relevant party has been given to the other Party, and takes into account the reasonable requests of the other Party in relation to such disclosure.
16.2 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
16.3 Save as otherwise permitted under this Clause 16, this Agreement shall be personal to each of the Parties but shall bind and enure to the benefit of permitted successors in title and permitted assignees of each Party. Each Party shall and shall procure that any successor or permitted assign of such Party is notified of the terms of this Agreement.
16.4 Each Party shall, and shall procure that its Group Companies shall, upon reasonable request from the other Party, execute, or use Commercially Reasonable Efforts to procure the execution of, any agreements or other instruments (including any supplement or amendment to this Agreement) which may be reasonably required in order to give effect to or perfect any permitted assignment, transfer, mortgage, charge, trust or other dealing referred to in this Clause 16.
17. RESTRICTIVE COVENANTS
17.1 Without the prior, written consent of the other Party (not to be unreasonably withheld, conditioned or delayed), neither Party shall, and each Party shall procure that none of their respective Group Companies shall, under any circumstances during the Term, engage in any Competing Activities, but shall remain free to:
17.1.1 [Redacted]
17.1.2 [Redacted]
17.1.3 [Redacted]
17.1.4 [Redacted]
17.1.5 [Redacted]
17.1.6 [Redacted]
17.2 In the event that this Agreement is terminated pursuant to Clause 18 (Duration and Termination), without the prior, written consent of the other Party (not to be unreasonably withheld, conditioned or delayed), neither Party shall, and each Party shall procure that none of their respective Group Companies shall, under any circumstances following termination of this Agreement, engage in any of the Post-Termination Competing Activities. This Clause 7.2 shall not prevent any Party from, following termination pursuant to Clause 18, undertaking the following arrangements, provided that such Party and its respective Group Companies shall continue to be prohibited from: (i) disclosing the PDC Developed Foreground IP or the other Party's Background IP to a third party; or (ii) utilising the PDC Developed Foreground IP or the other Party's Background IP in connection with any such arrangement, except as permitted under the Background IP Licence or the PDC Developed Foreground IP Licence (as applicable):
17.2.1 [Redacted]
17.2.2 [Redacted]
17.2.3 [Redacted]
17.2.4 [Redacted]
17.2.5 [Redacted]
17.3 [Redacted]
17.4 [Redacted]
17.5 Subject to Clauses 17.2 and 17.3 (save as otherwise expressly permitted by this Agreement, the Background IP Licence and/or the PDC Developed Foreground IP Licence), without the prior, written consent of the other Party, neither Party shall assign, licence, sub-licence, sub- contract, create any Encumbrance in relation to, or otherwise dispose of:
17.5.1 any of its (or any of its Group Companies') rights or obligations under this Agreement, the Background IP Licence and/or the PDC Developed Foreground IP Licence; or
17.5.2 its rights (in whole or in part) in relation to: (i) the Background IP; (ii) the PDC Developed Foreground IP; or (iii) the Products, or any part thereof,
to a Competitor of the other Party, nor enter into any joint venture or other similar arrangement with a Competitor of the other Party in relation to: (i) the PDC Developed Foreground IP; or (ii) the Products, or any part thereof. For the purpose of this Clause 17.5, a Change of Control transaction shall be deemed to be an assignment. Each Party shall procure that the restrictions in this Clause 17.5 apply to its Group Companies.
18. DURATION AND TERMINATION
18.1 This Agreement shall come into force on the Effective Date and, unless terminated earlier in accordance with this Clause 18, shall remain in force for the Term.
No fault termination
18.2 Without prejudice to any rights that have accrued under the Project Agreements (or any of them) or any of their respective rights or remedies, the Parties may terminate this Agreement immediately:
18.2.1 in the event that both Parties jointly decide to end their mutual collaboration via the PDC and under this Agreement; or
18.2.2 upon the conclusion of all tasks and agreed milestones set out under the Initial Product Development Plan and in the event that the Parties choose not to renew the PDC or enter into any new agreement or arrangement under a Future Product Development Plan,
in each case by mutual decision of the Parties recorded in writing and signed by representatives of both Parties.
18.3 Without prejudice to any rights that have accrued under this Agreement or any of the Party's respective rights or remedies, either Party may terminate this Agreement immediately or upon receipt of the PDC Suspension Notice in the event that the Parties choose not to renew the PDC.
Termination by either Party for Minor Breach that is remediable
18.4 Without prejudice to any rights that have accrued under the Project Agreements (or any of them) or any of the Party's respective rights or remedies, either Party may terminate this Agreement immediately in the event that the other Party commits a Minor Breach of any of the Project Agreements (excluding failure to pay any amounts due under any of the Project Agreements), where such breach is remediable and the other Party fails to remedy that breach within sixty (60) days of being notified in writing of the breach and requiring that it be remedied, or within such longer period of time as may be agreed between the Parties in writing (each Party acting reasonably).
Termination by either Party in the event of a Competitor Change of Control
18.5 Without prejudice to any rights that have accrued under the Project Agreements (or any of them) or any of the Party's respective rights or remedies, either Party may terminate this Agreement immediately in the event that the other Party is acquired by, or is subject to a permitted Change of Control in favour of, a Competitor of the other Party.
Termination by either Party for Material Breach, an Insolvency Event or Force Majeure
18.6 Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, the Party which has not committed the breach in question and which is not subject to the applicable Insolvency Event or Force Majeure (the "No-Fault Party") may terminate this Agreement at its discretion and with immediate effect by giving written notice to the other Party (or, in the case of Force Majeure, by giving fourteen (14) days' notice in writing to the other Party), if any of the following circumstances occurs:
18.6.1 the other Party commits a Material Breach of any of the Project Agreements (excluding failure to pay any amounts due under any of the Project Agreements) and, if such breach is remediable, fails to remedy that breach within ten (10) days of being notified in writing to do so;
18.6.2 the other Party suffers or is subject to an Insolvency Event;
18.6.3 except where it arises from the inclusion of any part of the other Party's share capital on any Relevant Investment Exchange, there is a Change of Control of the other Party;
18.6.4 the other Party challenges the validity of any of the PDC Developed Foreground IP or the other Party's Background IP;
18.6.5 the other Party contests the secret or substantial nature of the Know-how comprised within the PDC Developed Foreground IP or the other Party's Background IP;
18.6.6 if any event or events of Force Majeure prevents the other Party from performing any of its obligations under any of the Project Agreements for a continuous period exceeding six (6) months, in accordance with the terms of Clause 29 of this Agreement; or
18.6.7 in the event that this Agreement terminates, solely with respect to any PDC Developed Foreground IP not yet in existence at the date of termination.
18.7 For the purposes of Clause 18.6.1, "Material Breach" means a breach of:
18.7.1 in respect of the Investor Rights Agreement, Section 2.2 (Board Nomination Rights) or Section 8.3 (Compliance Matters);
18.7.2 in respect of this Agreement, any of the obligations or restrictions set out in Clauses 4.2.2 (Performance of the Development Activities); 8.1 (Provision of Technical and Other Assistance); 11.4 (Intellectual Property Rights); 14.2 (Confidentiality); 16.1 (Assignment and Other Dealings) or 17.1, 17.4 or 17.5 (Restrictive Covenants) herein;
18.7.3 in respect of the Background IP Licence, any of the obligations or restrictions set out in: (i) Clauses 2.1 or 2.3 (Grant); Clause 5.3 (Protection and Maintenance of Background IP); Clause 10 (Sub-Licensing); Clause 11.1.1 (Assignment and Other Dealings); or Clause 13.1 (Right of First Refusal) therein; or (ii) Clauses 14.2 (Confidentiality) or 17.1, 17.4 or 17.5 (Restrictive Covenants) of this Agreement, as incorporated into Clauses 4 (Confidentiality) and 12 (Restrictive Covenants), respectively, of the Background IP Licence; or
18.7.4 in respect of the PDC Developed Foreground IP Licence, any of the obligations or restrictions set out in: (i) Clauses 2.1, 2.3 or 2.4 (Grant); Clause 4.3 (Protection and Maintenance of PDC Developed Foreground IP); Clause 10 (Sub-Licensing), other than Clause 10.1.1; Clauses 11.1, 11.3 or 11.5 (Assignment and Other Dealings) therein; or (ii) Clauses 14.2 (Confidentiality) or 17.1, 17.4 or 17.5 (Restrictive Covenants) of this Agreement, as incorporated into Clauses 3 (Confidentiality) and 12 (Restrictive Covenants), respectively, of the PDC Developed Foreground IP Licence.
19. EFFECT OF TERMINATION
19.1 In the event that the Parties terminate this Agreement under either of Clauses 18.2 or 18.3:
19.1.1 the Development Activities shall cease with immediate effect; but
19.1.2 the provisions of Clauses 14 (Confidentiality) and 17.2 to 17.5 (inclusive) (Restrictive Covenants) shall continue in full force and effect;
19.1.3 the PDC Developed Foreground IP Licence shall continue in full force and effect on its terms as in effect at the date of termination, with respect to the PDC Developed Foreground IP that is in existence at the date of termination (the "Existing PDC Developed Foreground IP"); and
19.1.4 the Background IP Licence shall continue in full force and effect on its terms as in effect at the date of termination, solely:
(A) with respect to the Background IP that is in existence at the date of termination (the "Existing Background IP"); and
(B) to the extent necessary for the purpose of allowing the Parties to Exploit the Existing PDC Developed Foreground IP, pursuant to the terms of the Background IP Licence.
19.2 In the event that either of the Parties terminates this Agreement under Clause 18.4, in respect of breaches that remain unremedied after the cure period set out therein:
19.2.1 the Party which has not committed the breach in question (the "No-Fault Party") may terminate the Development Activities, at its discretion and with immediate effect, by written notice to the other Party (the "Breaching Party");
19.2.2 the No-Fault Party shall have the right to request from the Breaching Party payment in full of the damages in question, within forty-five (45) calendar days of the last date of the cure period set out in Clause 18.4 or such other reasonable period as the Parties may agree in writing;
19.2.3 the provisions of Clauses 14 (Confidentiality) and 17.2 to 17.5 (inclusive) (Restrictive Covenants) shall continue in full force and effect;
19.2.4 the PDC Developed Foreground IP Licence shall:
(A) continue in full force and effect, in the event that the Development Activities continue and are not terminated in accordance with Clause 19.2.1, both with respect to the Existing PDC Developed Foreground IP and any PDC Developed Foreground IP that comes into existence after the date of termination; and
(B) in the event that the Development Activities are terminated under Clause 19.2.1, continue only with respect to Existing PDC Developed Foreground IP; and
19.2.5 the Background IP Licence shall:
(A) continue in full force and effect on its terms as in effect at the date of termination, in the event that the Development Activities continue and are not terminated in accordance with Clause 19.2.1; or
(B) in the event that the Development Activities are terminated under Clause 19.2.1, continue in full force and effect on its terms as in effect at the date of termination, but solely with respect to Existing Background IP, solely for the purposes of Exploiting Existing PDC Developed Foreground IP;
19.3 In the event that either of the Parties terminates this Agreement under Clause 18.5:
19.3.1 the Party which has not committed the breach in question (the "No-Fault Party") may terminate the Development Activities, at its discretion and with immediate effect, by written notice to the other Party (the "Breaching Party");
19.3.2 the provisions governing the interactions of the Parties under Clauses 14 (Confidentiality) and 17.2 to 17.5 (inclusive) (Restrictive Covenants) shall continue in full force and effect;
19.3.3 in the event of a Competitor Change of Control of BAT, the PDC Developed Foreground IP Licence shall continue in full force and effect on its terms as in effect at the date of termination, in respect of the Existing PDC Developed Foreground IP, save in the event that OGI has acquired the relevant Existing PDC Developed Foreground IP in accordance with its right of first refusal under Clause 17.3; and/or
19.3.4 in the event of a Competitor Change of Control of OGI, the licences granted to OGI under the PDC Developed Foreground IP Licence shall terminate with immediate effect;
19.3.5 the licences granted under the Background IP Licence to the Party which is subject to the Competitor Change of Control in question shall terminate with immediate effect; and
19.3.6 the licences granted under the Background IP Licence to the Party which is not subject to the Competitor Change of Control shall continue in full force and effect, solely for the purposes of Exploiting the PDC Developed Foreground IP.
19.4 In the event that either of the Parties terminates this Agreement under Clause 18.6:
19.4.1 in the event that OGI is the Party in breach or which is subject to the applicable Insolvency Event or Force Majeure (the "Breaching Party"), the PDC Developed Foreground IP Licence shall terminate with immediate effect;
19.4.2 in the event that BAT is the Breaching Party, the PDC Developed Foreground IP Licence shall continue with full force and effect, subject to the terms and conditions set out therein, and, in the event of termination for an Insolvency Event, the licence rights granted to OGI under the PDC Developed Foreground IP Licence will not be affected, including by BAT's rejection of the PDC Developed Foreground IP Licence;
19.4.3 the Background IP Licence shall terminate with immediate effect, solely with respect to the licences and rights granted to the Breaching Party, and shall continue in full force and effect with respect to the licences and rights granted to the No-Fault Party, solely for the purposes of Exploiting the PDC Developed Foreground IP; and
19.4.4 the No-Fault Party shall have the right to request from the Breaching Party payment in full of the damages in question, within forty-five (45) calendar days of the date the Breaching Party received notice of the breach under Clause 18.6, or such other reasonable period as the Parties may agree in writing.
19.5 Upon the expiry or termination of the Project Agreements for any reason and subject to any express provisions set out elsewhere in the Project Agreements:
19.5.1 each Party shall have the right to request from the other Party all outstanding sums payable to it, within forty-five (45) calendar days of the date of expiry or termination, or such other reasonable period as the Parties may agree in writing (subject to BAT utilising the credit option granted to it under Clause 10.7.1);
19.5.2 the Licences, together with any and all sub-licences granted thereunder, shall cease with immediate effect;
19.5.3 OGI, and all OGI Parties, shall cease all Exploitation of the PDC Developed Foreground IP, except insofar as any Know-how comprised within the PDC Developed Foreground IP ceases or has ceased to be confidential, unless this is or was as a consequence of the default of OGI or an OGI Party;
19.5.4 OGI shall promptly return (or shall procure the return) to BAT, at OGI's expense or, if BAT so elects and, where relevant, permanently delete, all records and copies (including electronic copies) of the Know-how comprised within the PDC Developed Foreground IP, and of any Confidential Information communicated to it by BAT or any BAT Party, either preparatory to, or as a result of, this Agreement, to the extent such material remains confidential.
19.6 Upon the expiry or termination of this Agreement for any reason other than termination by BAT under any right provided by Clause 18.6, OGI and its permitted OGI Parties shall for a period of ninety (90) days after the date of termination have the right to dispose of all stocks of Products in its or their possession and all Products in the course of manufacture at the date of termination.
19.7 The expiry or termination of this Agreement, for any reason, shall not affect any provision of the Project Agreements which is expressed to survive or operate in the event of expiry or termination therein, in addition to Clauses 1 (Definitions and Interpretation), 10.10 to 10.12 (inclusive) (Funding and Invoicing); 11.2 and 11.8 (Intellectual Property Rights); 14 (Confidentiality); 15 (Liability, Indemnity and Insurance); 19 (Effect of Termination); 20 (Further Assurance); 24 (Severance); 26 (Third Party Rights); 27 (No Partnership or Agency); 28 (Non-Solicitation), for the period of six (6) months following termination set out therein; 30 (Notices); 31 (Service of Process); 34 (Inadequacy of Damages); 35 (Dispute Resolution Procedure); and 36 (Governing Law) of this Agreement, and shall be without prejudice to the provisions of this Clause 19 and to any rights of either Party under this Agreement or any of the other Project Agreements which may have accrued by, at, or up to, the date of such expiry or termination.
19.8 The provisions of this Clause 19 shall remain in effect notwithstanding termination or expiry of this Agreement.
20. FURTHER ASSURANCE
Save as stated otherwise in this Agreement, at its own cost and expense, each Party shall, and shall use Commercially Reasonable Efforts to procure that any necessary third party shall, promptly execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
21. WAIVER
No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
22. ENTIRE AGREEMENT
22.1 Together with the Investor Rights Agreement, the Subscription Agreement and the Licences, this Agreement and the documents referred to in it constitute the whole Agreement between the Parties and supersede any previous agreement between the Parties relating to its subject matter.
22.2 Each of the Parties acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether negligently or innocently made) other than as expressly set out in the Project Agreements.
22.3 Nothing in this Clause 22 shall limit or exclude any liability for fraud (including fraudulent misrepresentation).
23. VARIATION
No variation of this Agreement shall be effective unless it is in writing (which shall not include email) and signed by the Parties (or their authorised representatives).
24. SEVERANCE
24.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
24.2 If any provision or part-provision of this Agreement is deemed deleted under Clause 24.1, the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
25. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same Agreement. No counterpart shall be effective until each Party has executed at least one counterpart.
26. THIRD PARTY RIGHTS
26.1 The Group Companies and Representatives of each Party may enforce all Clauses of this Agreement pursuant to which they are granted rights (whether expressly or by implication), in accordance with the Contracts (Rights of Third Parties) Act 1999 (the "Act").
26.2 Except as provided in Clause 26.1, no person other than a Party to this Agreement, and their respective successors and permitted assigns, shall have any rights to enforce any term of this Agreement, whether under the Act or otherwise.
26.3 The rights of the Parties to rescind or vary this Agreement are not subject to the consent of any other person.
27. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute either Party the agent of the other Party, nor authorise either Party to make or enter into any commitments for or on behalf of the other Party.
28. NON-SOLICITATION
Each Party agrees that it shall not (and shall procure that no member of its Group shall), without the prior written consent of the other Party, during the Term and for a period of six
(6) months following its termination, solicit or induce any director, officer, employee, agent or contractor of the other Party or any of its Group, involved with the Development Activities or the rights and obligations granted under this Agreement, to terminate their employment or engagement with the other Party or such member of its Group (as applicable). This Clause shall not prevent any Party nor any of its Group Companies from considering or accepting the application of any person who: (i) independently initiates employment or engagement discussions without any prior direct or indirect solicitation; or (ii) is recruited solely through the placing of a public advertisement of a post available to a member of the public generally or solely through an employment agency (provided that neither the relevant Party nor any of its Group Companies encouraged the agency to approach the relevant individual).
29. FORCE MAJEURE
Neither Party (nor any of a Party's Group Companies or Representatives) shall be in breach of any of the Project Agreements nor liable for delay in performing, or failure to perform, any of that Party's obligations under any of the Project Agreements if such delay or failure results from Force Majeure, and in such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed, provided that if the period of delay or non-performance continues for six months, the Party not affected may terminate any of the Project Agreements by giving fourteen (14) days' written notice to the other Party, in accordance with the terms of Clauses 18.6.6 and 19.4.
30. NOTICES
30.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered personally, or sent by prepaid first-class post or recorded delivery or by commercial courier, to each Party required to receive the notice at its address as set out below:
30.1.1 BAT: James Barrett, Head of M&A, at Globe House, 4 Temple Place, London WC2R 2PG; [Redacted]; and
30.1.2 OGI: Greg Engel at 333 Bay Street, Suite 1250, Toronto, Ontario; [Redacted], with a copy to Neill May at 333 Bay Street, Suite 3400, Toronto, Ontario; [Redacted],
or as otherwise specified by the relevant Party by notice in writing to the other Party.
30.2 Any notice shall be deemed to have been duly received:
30.2.1 if delivered personally, when left at the address and for the contact referred to in Clause 30.1;
30.2.2 if sent by prepaid first-class post or recorded delivery, at 9.00 am on the Business Day after posting;
30.2.3 if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or
30.2.4 if delivered by email (where permitted), four (4) hours after the time at which the email is sent (in the time zone of the postal address specified for the recipient in Clause 30.1) to the email address(es) specified for that Party in Clause 30.1, provided that the sender does not within that four (4) hour period receive a delivery failure or delay notification in respect of the email address (or, if more than one email address is specified for that Party, in respect of all of the email addresses).
30.3 Unless otherwise stated herein, a notice required to be given under this Agreement shall be validly given if sent by e-mail.
31. SERVICE OF PROCESS
Each Party agrees that, without preventing any other mode of service, any documents in an action (including any claim form or other originating process or any third or other party notice) may be served on any Party by being delivered to or left for that Party at its address for service of notices under Clause 30.1 and each Party undertakes to maintain such an address for service and to notify the other Party in advance of any change from time to time of the details of such address in accordance with the manner prescribed for service of notices under this Clause 31.
32. STATEMENTS AND ANNOUNCEMENTS
32.1 Subject always to Clause 14 (Confidentiality), save in respect of statements that may be objectively considered to be fair, legitimate and not malicious or that constitute lawful comparative advertising, neither Party shall make, publish or cause to be published any statement or do or say anything that may harm or otherwise damage or be detrimental to the other Party or the other Party's Group.
32.2 No Party, nor any of a Party's Group Companies, shall release any announcement or despatch any circular relating to this Agreement, unless the form and content of such announcement or circular have been submitted to, and agreed by, the other Party. Subject always to Clause 14 (Confidentiality), nothing in this Clause 32 shall prohibit any Party from making any announcement or despatching any circular as required by Applicable Law or by any Regulatory Authority, in which case, the announcement shall only be released or the circular despatched after consultation with the other Party and after taking into account the reasonable requirements of the other Party as to the contents of such announcement or circular. Notwithstanding the foregoing, either Party may release or despatch any announcement or circular previously approved by the other Party for use publicly: (i) where required to comply with Applicable Laws; (ii) for corporate governance purposes; or (iii) for the purposes of engagement with investors, provided, in each case, that the content thereof is not amended or altered and that the republication is not rendered inaccurate or misleading by a change of circumstances or the effluxion of time.
33. COMPLIANCE WITH LAWS AND REGULATIONS
33.1 Each Party shall observe and abide by, and shall require its Group Companies and Representatives to observe and abide by, all Applicable Laws as may apply in relation to the matters contemplated by this Agreement, including any Approvals, both before and after the Approval. Neither Party shall do anything or omit to do anything which will cause the other to be in breach of any Applicable Laws, Regulatory Approval or regulations which have been notified by the other Party.
33.2 Each Party shall (and shall use Commercially Reasonable Efforts to procure that any of its applicable Group Companies and Representatives shall):
33.2.1 comply with all applicable laws, statutes, regulations, and codes relating to anti- bribery and anti-corruption including but not limited to the Bribery Act 2010, OFAC and the BAT Group's Standards of Business Conduct, a true, correct and complete copy of which has been provided by or on behalf of BAT to OGI prior to the Effective Date and, insofar as such Standards may be amended thereafter, as notified by BAT to OGI from time to time during the Term, and insofar as they may reasonably be deemed not to be in conflict with other mandatory legal or regulatory requirements to which the Party in question is subject (together, the "Relevant Requirements");
33.2.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
33.2.3 have and shall maintain in place throughout the Term its own policies and procedures including, but not limited to, adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements; and
33.2.4 promptly report to the other Party any request or demand for any undue financial or other advantage of any kind received by the Party in connection with the performance of this Agreement.
33.3 For the avoidance of doubt, either Party's acceptance or approval of any action taken by or on behalf of the other Party under this Agreement shall not be construed to mean that the Party has considered the application of, or compliance with, any Applicable Law, Approval or other requirement.
34. INADEQUACY OF DAMAGES
Without prejudice to any other rights or remedies that the other Party may have, each Party acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this Agreement by the other Party. Accordingly, each Party shall be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement.
35. DISPUTE RESOLUTION PROCEDURE
35.1 If a Dispute arises then, except as expressly provided in this Agreement, the Parties shall follow the dispute resolution procedure set out in this Clause 35.1 (save in the circumstances of Clause 16.3, which expressly provides for the use of an independent accountant):
35.1.1 either Party shall give to the other Party written notice of the Dispute, setting out its nature and full particulars ("Dispute Notice"), together with relevant supporting documents. On service of the Dispute Notice, the PDC Steering Group shall attempt in good faith to resolve the Dispute; and
35.1.2 if the PDC Steering Group is for any reason unable to resolve the Dispute, or fails to meet, within thirty (30) days of service of the Dispute Notice, the Dispute shall be referred to the Head of M&A for BAT and Chief Executive Officer of OGI, who shall attempt in good faith to resolve it.
35.2 Subject to Clause 35.3 and without prejudice to the right to terminate this Agreement pursuant to Clause 18 (Duration and Termination), if the Head of M&A for BAT and the Chief Executive Officer of OGI are for any reason unable to resolve the Dispute, or fail to meet, within thirty (30) days of it being referred to them, any Dispute shall be referred to and finally resolved by confidential, binding arbitration under the Rules of Arbitration of the International Chamber of Commerce (the "ICC Rules"), which ICC Rules are deemed incorporated into this Agreement, in accordance with the following sub-clauses:
35.2.1 the number of arbitrators shall be three (3);
35.2.2 the language of the arbitration shall be English;
35.2.3 the arbitration agreement shall be governed by the laws of England and Wales;
35.2.4 each Party shall nominate one (1) arbitrator, and the two (2) arbitrators nominated by the Parties shall within thirty (30) calendar days of the nomination of the second arbitrator agree upon a third arbitrator who shall act as Chairman of the Tribunal;
35.2.5 the place of the arbitration shall be New York, United States;
35.2.6 judgment upon any award rendered by the arbitrators may be entered in any court of competent jurisdiction.
35.3 Disputes arising under or in connection with one or more of the Project Agreements at the same time shall be consolidated into a single arbitration, in accordance with the terms of Clause 35.2.
35.4 Nothing contained in this Agreement shall deny either Party the right to seek injunctive, equitable or other interim relief from a court of competent jurisdiction in the context of an emergency or prospective irreparable harm, and such an action may be filed and maintained notwithstanding any ongoing dispute resolution discussions or arbitration proceedings under Clauses 35.1 or 35.2. In addition:
35.4.1 either Party may bring an action in any court of competent jurisdiction to resolve any Dispute pertaining to the ownership, validity, construction, scope, enforceability, infringement or other violations of the PDC Developed Foreground IP or Background IP; and
35.4.2 either Party may bring an action in the courts of England and Wales to resolve any Dispute arising under, out of or relating to the Agreement's formation, validity, binding effect or interpretation,
and no such matter shall be subject to arbitration pursuant to this Clause 35.
36. GOVERNING LAW
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
This Agreement has been entered into on the Effective Date.
SCHEDULE 1
[REDACTED]
SCHEDULE 2
[REDACTED]
SCHEDULE 3
PDC MANDATE
Subject to Clause 7.3 and save with respect to the Reserved Matters and the overall authority of the Head of the Centre of Excellence with respect to the day-to-day decisions itemised in Schedule 6, the PDC Steering Group shall:
[Redacted]
SCHEDULE 4
RESERVED MATTERS
The Reserved Matters shall include the matters listed below, which comprise a non-exhaustive list which may be added to, reduced or amended by prior written agreement between the Parties (which may not be by email):
[Redacted]
SCHEDULE 5
STANDING AGENDA
[Redacted]
SCHEDULE 6
DELEGATED DECISIONS FOR THE HEAD OF THE CENTRE OF EXCELLENCE
Subject to Clause 7.3 and save with respect to the Reserved Matters, the Head of the Centre of Excellence shall be permitted to take certain day-to-day decisions related to the PDC, as set out below, without the need to refer such decisions to the PDC Steering Group:
[Redacted]
SCHEDULE 7
[REDACTED]
SCHEDULE 8
BACKGROUND IP LICENCE
March 10, 2021
BT DE INVESTMENTS INC.
and
ORGANIGRAM INC.
BACKGROUND IP LICENCE
Herbert Smith Freehills LLP
TABLE OF CONTENTS
THIS AGREEMENT is made on March 10, 2021.
BETWEEN:
(1) BT DE INVESTMENTS INC., a company incorporated and registered in the State of Delaware and whose offices are located at 103 Foulk Road, Suite 111, Wilmington, Delaware 19803 ("BAT"); and
(2) ORGANIGRAM INC., a company incorporated and registered in Canada (with corporation number 668961 and business number 822317442 RC0001) and whose registered office is at 35 English Drive, Moncton, NB E1E 3X3, New Brunswick, Canada ("OGI"),
each of which is referred to in this Agreement as a "Party" or, together, the "Parties". RECITALS:
(A) BAT and OGI Holdings (as defined below) entered into the Investor Rights Agreement and the Subscription Agreement (as each term is defined below) on the Effective Date.
(B) The Parties entered into the Collaboration Agreement and the PDC Developed Foreground IP Licence (as each term is defined below) on the Effective Date.
(C) Pursuant to the Collaboration Agreement, the Parties agreed that each Party (and each of a Party's applicable Group Companies) shall retain all rights, title and ownership in and to its respective Background IP (as defined below) and that each Party shall grant to the other Party a licence of its rights to such Background IP.
(D) Each Party has therefore agreed to grant, and the other Party has agreed to take, a licence of its respective rights to the Background IP, on the terms and subject to the conditions set out in this Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
Each of the following words and expressions has the following meanings, unless expressly stated otherwise:
"Acquired Background IP" means any Intellectual Property Rights which a Party (or one or more of a Party's Group Companies) acquires or to which a Party or one or more of a Party's Group Companies) is granted rights as part of any M&A Activity, which would otherwise be considered to fall within the definition of Background IP;
"Agreement" means this Agreement;
"Applicable Law(s)" means all laws, regulations, regulatory requirements and authorisations, directives, statutes, subordinate legislation, common law and civil codes of any jurisdiction, all judgments, orders, notices, instructions, decisions and awards of any court or competent authority or tribunal and all codes of practice having force of law, statutory guidance and policy notes, in each case to the extent applicable to any work carried out pursuant to the Collaboration Agreement or applicable to the Parties (including each Party's Group Companies) or either of them or either Party's (or either Party's Group Companies') obligations under the Project Agreements, including the Data Protection Legislation;
"Approvals" means, together, any Marketing Authorisation(s) and/or Regulatory Approval(s);
"Background IP" means, in respect of each Party, respectively, such Intellectual Property Rights (but excluding Trade Mark Rights):
(a) that the Party, or any of the Party's Group Companies, owns or in respect of which the Party, and/or any of the Party's Group Companies, has been granted rights and, in each case, may freely and without cost, consent, authorisation, notification, obligation or any other obligation, requirement or restriction, sub-licence (excluding Acquired Background IP); or
(b) creates or develops, or is created or developed on its behalf, during the Term, that is divisible from and separate to the PDC Developed Foreground IP; and
in each case, are necessary and required by the other Party (or any of that Party's Group Companies or Representatives) solely for the purposes of the Development Activities;
"Business Day" has the meaning given to it in the Subscription Agreement;
"Collaboration Agreement" means the Collaboration Agreement entered into between BAT and OGI, on the Effective Date, pursuant to which BAT and OGI agreed, amongst other things, to collaborate to undertake the Development Activities;
"Commercialisation Activities" means product stewardship, product and consumer testing, the application for, obtaining and other activities required in relation to Approvals, manufacture for sale, brand marketing, trade marketing, distribution, import, export, supply, offer for sale, sale, provision of product support and other commercialisation activities in relation to Future Cannabis Products, including arranging for any of these activities to be carried out by a Group Company or other permitted Representative;
"Commercially Reasonable Efforts" of a Party (or a Party's Group Companies) shall mean such efforts as a reasonable and prudent party, acting properly in its own commercial interest and applying its mind to its contractual obligations, would take to attempt to fulfil an obligation, but shall not include any obligation on that Party (or a Party's Group Companies) to pay cash or other value to a third party, to incur incremental costs or to take any such steps which may be commercially detrimental to that Party (or a Party's Group Companies), in any way;
"Competitor" has the meaning given to it in the Collaboration Agreement;
"Confidential Information" of a Party means all confidential information, Know-how or other information reasonably considered to be confidential because it is deemed to be secret and has been subject to reasonable steps to keep it secret (and whether in writing or otherwise and no matter in what form or what medium held or generated, recorded or preserved) disclosed by or on behalf of such Party or any of its Group Companies or Representatives or otherwise made available to the other Party or any of its Group Companies or Representatives, whether made available orally, visually, in writing, in electronic form or by any other means, regardless of whether any of the foregoing are marked "confidential" or "proprietary", and whether before or after the date of this Agreement, in connection with this Agreement, including:
(a) the terms of this Agreement, each of the other Project Agreements and any other agreement or arrangement contemplated by this Agreement or any of the other Project Agreements;
(b) the existence, nature or status of any discussions between the Parties or between the Parties, respectively, and any of the Parties' Group Companies;
(c) any information of whatever nature (and whether or not technical) and which relates to:
(i) financial, marketing and technical information, specifications, ideas, concepts, technology, processes and knowledge, research and development; or
(ii) the business, or any other business, finances, assets, liabilities, dealings, customers, suppliers, processes, affairs, prices, discounts, margins, current trading performance or future business strategy,
of either Party, or any member of their respective Groups, from time to time; and
(d) any other information (whether or not technical) that would be regarded as confidential by a reasonable business person;
"Control" has the meaning given to it in the Collaboration Agreement, save that, with respect only to its use in relation to Sub-Licensees in Clause 10.1.4 hereof:
(a) references to "BAT" in sub-paragraph (a) of the definition shall be understood to mean "a Sub-Licensee of BAT";
(b) references to "OGI" in sub-paragraph (b) of the definition shall be understood to mean "a Sub-Licensee of OGI"; and
(c) references to "either Party" in sub-paragraph (c) of the definition shall be understood to mean "a Sub-Licensee of the applicable Party";
"Data Protection Legislation" means all relevant legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data and data protection (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a Party (or any of a Party's Group Companies);
"Dealing Party" has the meaning given to it in Clause 11.1.2;
"Development Activities" has the meaning given to it in the Collaboration Agreement;
"Dispute" means any dispute, claim, controversy or difference arising out of or in connection with this Agreement, including any question regarding its existence, validity, subject matter, interpretation, negotiation, termination or enforceability, the performance of it and any dispute, claim, controversy or difference regarding any non-contractual obligations arising out of or in connection with it;
"Dispute Notice" has the meaning given to it in Clause 29.1.1;
"Effective Date" means the date of this Agreement;
"Encumbrance" means any claim, option, mortgage, pledge, lien, charge (fixed or floating), hypothecation, equity, right to acquire, right of pre-emption, right of first refusal, title retention, security interest or other agreement or arrangement which has the same or a similar effect to the granting of security;
"Enforcement Action" has the meaning given to it in Clause 6.2.1;
"Exploitation" or "Exploit" has the meaning given to it in the Collaboration Agreement;
"Field of Use" means all fields of use related to the Exploitation of Future Cannabis Products;
"Future Cannabis Products" has the meaning given to it in the Collaboration Agreement;
"Good Industry Practice" means the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a leading company within the relevant sector;
"Group" means, in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company (and any of the same shall be a "member of the Group");
"Group Company" means any company within any Group;
"Holding company" and "subsidiary" have the meanings given to them in the Collaboration Agreement;
"Intellectual Property Rights" means rights to inventions (whether patentable or not), patents, supplementary protection certificates, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off and unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including Know-how) and any other intellectual property rights and proprietary rights, including all applications for (and rights to apply for and be granted) registrations, renewals or extensions of, and rights to claim priority from, such rights, Know-how and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;
"Investor Rights Agreement" means the Investor Rights Agreement entered into between BAT and OGI Holdings, on the Effective Date;
"IP Costs" means all reasonable external costs, fees and expenses in connection with: (i) the drafting, filing, prosecution and protection of all applications for the registration of Intellectual Property Rights or supplementary protection certificate applications comprised within the Background IP; (ii) the maintenance and extension of all registrable Intellectual Property Rights comprised within the Background IP; and (iii) the enforcement of the Background IP, in connection with this Agreement, including:
(a) the filing and prosecution of applications for and the maintenance and renewal of patents and other registrable Intellectual Property Rights;
(b) the defence and enforcement of the Intellectual Property Rights comprised within the Background IP;
(c) proceedings before any of the Canadian Intellectual Property Office, the United States Patent and Trademark Office, the UK Intellectual Property Office, the EU Intellectual Property Office, the European Patent Office or other appropriate forum for the grant of registrable Intellectual Property Rights or any appeal tribunal therefrom in any country;
(d) professional advice on intellectual property matters relating to Intellectual Property Rights comprised within the Background IP;
(e) attorney's and agent's fees and commissions; and
(f) any other expenditure which may be agreed between the Parties from time to time,
in each case on a pure costs recovery basis, with no uplift, and excluding any internal costs, fees and expenses incurred in relation to the relevant Party's (or the relevant Party's Group Companies') employees and personnel;
"IP Owner" has the meaning given to it in Clause 13.1;
"Know-how" has the meaning given to it in the Collaboration Agreement;
"Licences" means the licences and other rights granted or to be granted under Clause 2 (Grant) of this Agreement that may be exercised by a Party from time to time under this Agreement;
"M&A Activity" means any transaction in which any Intellectual Property Rights (other than Trade Marks) are: (i) acquired from a third party by one of the Parties (or one or more of a Party's Group Companies); or (ii) licensed from a third party by one of the Parties (or one or more of a Party's Group Companies), in each case in return for value;
"Marketing Authorisation" has the meaning given to it in the Collaboration Agreement;
"Material Breach" has the meaning given to it in the Collaboration Agreement;
"OFAC" means the Office of Foreign Assets Control of the Department of Treasury of the United States of America;
"OGI Holdings" means Organigram Holdings Inc., a company incorporated and registered in Canada (with corporation number 969981-3 and business number 804424059RC0001) and whose registered office is at 35 English Drive, Moncton, NB E1E 3X3, New Brunswick, Canada;
"PDC" has the meaning given to it in the Collaboration Agreement;
"PDC Developed Foreground IP" has the meaning given to it in the Collaboration Agreement;
"PDC Developed Foreground IP Licence" has the meaning given to it in the Collaboration Agreement;
"PDC Steering Group" has the meaning given to it in the Collaboration Agreement;
"Project Agreements" means, together: (i) the Investor Rights Agreement; (ii) the Subscription Agreement; (iii) the Collaboration Agreement; (iv) the PDC Developed Foreground IP Licence; and (v) this Agreement;
"Regulatory Approval" has the meaning given to it in the Collaboration Agreement;
"Regulatory Authority" has the meaning given to it in the Collaboration Agreement;
"Relevant Requirements" has the meaning given to it in Clause 27.2.1;
"Representatives" has the meaning given to it in the Collaboration Agreement and, for the purposes of this Agreement, shall (for the avoidance of doubt) include Sub-Licensees;
"ROFR" means the right of first refusal described in Clause 13;
"ROFR Offer" has the meaning given to it in Clause 13.1.2;
"Sub-Licensor" has the meaning given to it in Clause 10;
"Sub-Licensee" has the meaning given to it in Clause 10;
"Subscription Agreement" means the Subscription Agreement entered into between BAT and OGI Holdings, on the Effective Date;
"Term" means the indefinite duration of this Agreement, subject to the provisions of Clause 14 of this Agreement (Duration, Termination and Effect of Termination) and Clause 18 of the Collaboration Agreement (Duration and Termination);
"Territory" means all regions, countries and territories of the world;
"Third Party Assignment" has the meaning given to it in Clause 11.1.2;
"Third Party Offer" has the meaning given to it in Clause 13.1;
"Trade Mark Rights" has the meaning given to it in the Collaboration Agreement; and
"UK" means the United Kingdom.
1.2 References to this Agreement and other Agreements
In this Agreement, except where the context otherwise requires:
1.2.1 a reference to a Clause is a reference to a Clause of, or to, this Agreement;
1.2.2 the contents page and headings are for convenience only and shall not affect the interpretation of this Agreement;
1.2.3 a reference to this Agreement includes this Agreement as amended or supplemented in accordance with its terms; and
1.2.4 a reference to any agreement or other instrument (other than an enactment or statutory provision) is to that agreement or instrument as from time to time amended, varied, supplemented, substituted, novated or assigned otherwise than in breach of this Agreement.
1.3 Precedence
In this Agreement, except where the context otherwise requires, to the extent that the terms of this Agreement conflict with the provisions of any of the other Project Agreements, the terms of this Agreement take precedence, to the extent of the inconsistency, except to the extent that: (i) a defined term or Clause of another Project Agreement is expressly incorporated herein, by reference; or (ii) the applicable Project Agreement expressly and specifically states an intent to supersede this Agreement on a specific matter.
1.4 Singular, plural and gender
Words in the singular include the plural and vice versa and a reference to one gender includes other genders.
1.5 References to persons and companies
In this Agreement, except where the context otherwise requires:
1.5.1 a reference to a person includes a reference to any individual, firm, company, government, state or agency of a state, local or municipal authority or government body or any joint venture, association or partnership (whether or not having separate legal personality);
1.5.2 a reference to a company includes any company, corporation or other body corporate wherever and however incorporated or established;
1.5.3 a reference to an individual includes that individual's estate and personal representatives; and
1.5.4 a person shall be deemed to be connected with another if that person is connected with another within the meaning of section 1122 of the Corporation Tax Act 2010.
1.6 References to time periods
In this Agreement, except where the context otherwise requires:
1.6.1 a reference to a time of day is to London, United Kingdom time;
1.6.2 a reference to a day (including within the defined term "Business Day") means a period of twenty-four (24) hours ending at midnight; and
1.6.3 any period of time is calculated exclusive of the day from which the time period is expressed to run or the day upon which the event occurs which causes the period to start running.
1.7 References to legislation and legal terms
In this Agreement, except where the context otherwise requires:
1.7.1 a reference to an enactment, EU instrument or statutory provision shall include a reference to any subordinate legislation made under the relevant enactment, EU instrument or statutory provision and is a reference to that enactment, EU instrument, statutory provision or subordinate legislation as from time to time amended, modified, incorporated or reproduced and to any enactment, EU instrument, statutory provision or subordinate legislation that from time to time (with or without modifications) re-enacts, replaces, consolidates, incorporates or reproduces it;
1.7.2 a reference to any English statute or enactment includes any equivalent or analogous laws or rules in any other jurisdiction to the extent that such jurisdiction is relevant to the transactions contemplated by this Agreement; and
1.7.3 a reference to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept includes what most nearly approximates the English legal term in any jurisdiction other than England to the extent that such jurisdiction is relevant to the transactions contemplated by this Agreement.
1.8 Includes and including
In this Agreement, except where the context otherwise requires:
1.8.1 the words and phrases "includes", "including", "in particular" (or any terms of similar effect) shall not be construed as implying any limitation; and
1.8.2 general words shall not be given a restrictive meaning because they are preceded or followed by particular examples.
1.9 Writing
A reference to writing includes any modes of reproducing words in any legible form and, except where expressly stated otherwise, shall include email.
2. GRANT
2.1 Subject to the terms of this Agreement and in consideration for the mutual promises, covenants and obligations of the Parties pursuant to the Project Agreements, each Party hereby grants to the other Party, throughout the Term and throughout the Territory, in each case on a royalty-free basis, a non-exclusive, fully paid-up, perpetual, irrevocable, non- transferable licence under and to its respective Background IP solely to the extent necessary for the purposes of:
2.1.1 undertaking the Development Activities; and
2.1.2 allowing the other Party to Exploit the PDC Developed Foreground IP, Exploit the Future Cannabis Products and conduct Commercialisation Activities, in each case pursuant to the terms of this Agreement and the PDC Developed Foreground IP Licence,
in respect of the Field of Use, only.
2.2 Subject to Clauses 2.1 and 12 (Restrictive Covenants), each Party shall have the right to grant sub-licences and to sub-contract the rights granted to it under this Agreement, in accordance with the terms of Clause 10 (Sub-Licensing).
2.3 Each Party undertakes only to make use of the other Party's Background IP for the purposes expressly authorised in this Agreement.
2.4 All Background IP (and rights to Background IP) is/are and shall remain the exclusive property of the Party owning it (or, where applicable, the Group Company or third party from whom its right to use the Background IP has derived) and nothing in this Agreement, the Collaboration Agreement or the PDC Developed Foreground IP Licence shall operate to transfer the ownership (whether legal or beneficial) of any Background IP of one Party (or any of one Party's Group Companies or any third parties) to the other Party.
2.5 Subject to Clause 2.6, either Party may, at its sole discretion and its own cost and expense, record (or procure the recordal of) any or all of the licences granted to it under this Clause 2, in some or all of the relevant intellectual property registries in the Territory, as far as reasonably practicable, but neither of the Parties shall be obliged to do so. Each Party shall provide reasonable assistance to the other Party (or the other Party's Group Companies or authorised representatives), upon written request of the other Party, to enable the other Party to do so, at the requesting Party's sole cost and expense, including in the drafting and execution of short-form licences and any applicable recordal forms, if required.
2.6 For the avoidance of doubt, the Parties acknowledge and agree that this Agreement is considered to be Confidential Information and neither Party (nor any of its Group Companies or Representatives) shall file, record or register a copy of this Agreement (whether in redacted form or otherwise) with any intellectual property registry.
2.7 For the avoidance of doubt:
2.7.1 nothing in this Agreement, nor any of the other Project Agreements, will impact upon, constrain, limit or prevent a Party (or any of that Party's Group Companies) from using or Exploiting its own, respective rights, title or interest in or to, its own respective Background IP at that Party's discretion and as that Party sees fit, inside or outside the Field of Use;
2.7.2 save as expressly provided herein, or in the PDC Developed Foreground IP Licence, nothing in this Agreement, nor any of the other Project Agreements, shall be construed as granting to either Party any claim over, or right, title or interest in, any Intellectual Property Rights that the other Party (or that Party's Group Companies) may own or to which the other Party (or that Party's Group Companies) may have rights; and
2.7.3 subject to Clause 12 (Restrictive Covenants), the rights granted to a Party under this Agreement will remain and be subject to all then existing rights of any Group Companies or third parties to access, use or deal with the other Party's Background IP and each Party shall upon reasonable request notify the other Party of any such rights as have been granted (to the exclusion of any licences or other rights granted by a Party (or any of a Party's Group Companies) in the ordinary course to its suppliers, distributors, agents and/or manufacturers, for the purposes of allowing such third parties to undertake ordinary course commercialisation activities on the behalf of a Party (or any of its Group Companies).
3. ACQUIRED BACKGROUND IP
3.1 Acquired Background IP of either Party shall not, for the purposes of this Agreement or the PDC Developed Foreground IP Licence, be considered to be Background IP.
3.2 Each Party may (but shall not be obliged to):
3.2.1 notify the other Party of any Acquired Background IP to which it (or any of its Group Companies) has gained or gains ownership or other rights; and
3.2.2 discuss in good faith whether, and the terms on which, such Acquired Background IP may be made available to the other Party for the purposes of the PDC.
4. CONFIDENTIALITY
4.1 Subject to Clause 5.3, the provisions of Clause 14 of the Collaboration Agreement (Confidentiality) shall apply mutatis mutandis, as if set out in this Agreement.
4.2 The provisions of this Clause 4 shall remain in force notwithstanding expiry or earlier termination of this Agreement.
5. PROTECTION AND MAINTENANCE OF BACKGROUND IP
5.1 Each Party (and, as applicable, each Party's Group Companies) shall be responsible, at its sole discretion, for drafting, filing and prosecuting applications for and maintaining and renewing its respective Background IP that is capable of registration (or for procuring the same) and the other Party shall have no right, liability and/or obligation with respect thereto.
5.2 Either Party (or the Party's applicable Group Companies) shall be permitted to abandon or let lapse any of its registrations with respect to Background IP, at that Party's (or that Party's applicable Group Company's) sole discretion and without any requirement to seek or obtain consent from the other Party to the same.
5.3 Without limiting the scope of Clause 4 (Confidentiality), neither Party, nor any Party's Group Companies or Representatives, shall disclose any Background IP of the other Party or its Group Companies that is Confidential Information, without the prior written consent of the other Party.
5.4 Each Party shall:
5.4.1 promptly provide to the other Party (or any of the other Party's relevant Group Companies) any assistance, information and/or instructions which the other Party (or any of its Group Companies) reasonably requires to allow it to comply with its obligations under Clause 5.1;
5.4.2 comply with all Applicable Laws to safeguard the other Party's (or the Party's applicable Group Companies') rights in the Background IP; and
5.4.3 not, nor directly or indirectly assist any other person to, do or omit to do anything to, diminish the rights of the other Party (or the Party's applicable Group Companies) in its Background IP or impair any registration of any of the other Party's (or the Party's applicable Group Companies) Background IP, provided that each Party (or any of the Party's Group Companies) is free to challenge the validity of the other Party's (or the Party's applicable Group Companies) Background IP or the secrecy or substantiality of the Know-how comprised within the other Party's (or the Party's applicable Group Companies) Background IP,
provided that each Party shall reimburse to the other Party all reasonable out-of-pocket expenses incurred by (or on behalf of) the other Party in complying with its obligations under Clause 5.4.1.
6. ENFORCEMENT OF THE BACKGROUND IP
6.1 Each Party shall use its Commercially Reasonable Efforts to notify (or procure the notification of) the other Party in writing, giving full particulars, if any of the following matters come to its attention:
6.1.1 any actual, suspected or threatened infringement of any of its own Background IP;
6.1.2 any actual, suspected or threatened unauthorised disclosure, misappropriation or misuse of any Know-how comprised within its own Background IP;
6.1.3 any actual or threatened claim that any of its own Background IP is invalid;
6.1.4 any actual or threatened opposition to any of its own Background IP; or
6.1.5 any claim made or threatened that Exploitation of any of its own Background IP infringes the rights (including Intellectual Property Rights) of any third party;
6.1.6 any other form of attack, challenge, charge or claim to which its own Background IP may be subject.
6.2 In respect of any of the matters listed in Clause 6.1:
6.2.1 each Party shall have the right, in its absolute discretion, to decide what action, if any, to take in respect of its own Background IP (the "Enforcement Action");
6.2.2 if a Party decides, in its absolute discretion, to institute proceedings, it may do so in its name alone or in the name of any of its Group Companies, to the fullest extent possible under Applicable Laws;
6.2.3 each Party (or any of that Party's Group Companies) shall have exclusive control over, and conduct of, any Enforcement Action (including all claims, disputes, proceedings and settlements) in respect of its own Background IP;
6.2.4 the other Party shall not make any admissions, other than to the first Party;
6.2.5 each Party shall bear the costs and expenses of any such Enforcement Action it undertakes or which is undertaken by any of that Party's Group Companies, on its behalf (including any IP Costs); and
6.2.6 each Party shall provide to the other Party, upon the other Party's reasonable request, any assistance, information and/or instructions which the other Party may reasonably require to allow it to take any Enforcement Action contemplated by this Clause 6.2 or in the conduct of any such claims or proceedings, at reasonable cost and expense to be borne by the requesting Party (or one of its Group Companies).
6.3 For the avoidance of doubt, in the event that a Party or one of that Party's Group Companies does not:
6.3.1 initiate any relevant Enforcement Action; or
6.3.2 initiates, but decides not to proceed with, any such Enforcement Action,
the other Party shall not have any right to initiate and/or proceed with any such Enforcement Action.
6.4 Any sums recovered in any action taken by either of the Parties (or any of their respective Group Companies, on that Party's behalf) pursuant to Clauses 6.2 or 6.3 (respectively, the "Enforcing Party") shall belong to the Enforcing Party.
7. FINANCIAL CONTRIBUTIONS
In respect of payments to be made by one Party to the other under this Agreement, the provisions of Clauses 10.6 to 10.12 of the Collaboration Agreement (Funding and Invoicing), inclusive, shall apply mutatis mutandis, as if set out in this Agreement.
8. NOTIFICATION AND CONSULTATION RELATING TO ENFORCEMENT ACTIONS
Each Party shall keep the other Party reasonably informed of any Enforcement Action, through scheduled meetings of the PDC Steering Group and prescribed periodic reporting of all material developments in connection with the same.
9. LIMITATION OF LIABILITY
9.1 Each Party shall, or shall procure that its applicable Group Companies shall, use Commercially Reasonable Efforts to procure that, so far as is legally permissible:
9.1.1 all Background IP either, directly or indirectly, vests in or is assigned to it, or that it is otherwise duly authorised to grant to the other Party a licence of such rights under the terms of this Agreement;
9.1.2 all of such Party's Group Companies and/or Representatives execute all documents, assignments or licences and do all such things as may be necessary to establish or perfect its title or rights to such Background IP or to register it as the owner of such registrable rights; and
9.1.3 take reasonable steps to enforce, and shall not waive or release, the provisions set out in this Clause 9.1, without the prior written consent of the other Party.
9.2 Nothing in this Agreement shall constitute any representation or warranty by either Party that:
9.2.1 any Background IP is valid or relevant to the Future Cannabis Products or the Development Activities;
9.2.2 any application for registration of any Background IP shall proceed to grant or, if granted, shall be valid; or
9.2.3 the exercise by the other Party of the Licences granted to it will not infringe the rights (including Intellectual Property Rights) of any person.
9.3 To the fullest extent permitted by law:
9.3.1 neither Party shall be liable to the other Party for any costs, expenses, loss or damage (whether direct, indirect or consequential and whether economic or other) arising out of the way in which the Party, any of the Party's applicable Group Companies, or any of its or their employees, consultants or agents chooses to exercise its discretion relating to any of the activities under Clauses 5.1, 5.2 or 6.2.1, provided that it has complied with its obligations under this Agreement; and
9.3.2 any warranties, conditions and other terms implied by statute or common law are excluded from this Agreement, except as expressly provided in this Agreement.
9.4 Nothing in this Agreement shall have the effect of excluding or limiting any liability for death or personal injury caused by negligence or for fraud (including fraudulent misrepresentation).
9.5 The provisions of this Clause 9 shall remain in effect notwithstanding termination or expiry of this Agreement.
10. SUB-LICENSING
10.1 Subject to Clause 12 (Restrictive Covenants), the terms of the Collaboration Agreement and the provisions set out in Schedule 7 thereof, each Party (each a "Sub-Licensor", respectively) shall have the right to grant to: (i) any of its respective Group Companies; and
(ii) any other person (including any subcontractor) (each a "Sub-Licensee"), a sub-licence of any of its rights under this Agreement, for the purposes of assisting with the Sub-Licensor's (or any of its applicable Group Companies or Representatives) own Development Activities and Commercialisation Activities, in order to allow the applicable Sub-Licensor to Exploit appropriately the PDC Developed Foreground IP, provided that:
10.1.1 each Party acknowledges that the rights granted to it under this Agreement are personal to it and neither Party shall be permitted to grant any sub-licence thereof to any third party, other than as permitted under Clause 10.1;
10.1.2 if a Party requests prior written consent to grant any further sub-licences of the rights granted to it under this Agreement, in accordance with Clause 10.1.1 sub- section (i), the Parties will engage in good faith discussions regarding the nature of the requested consent, with a view to accommodating the relevant Party's request;
10.1.3 all sub-licences granted shall terminate automatically on termination or expiry of this Agreement;
10.1.4 in the event that any Sub-Licensee is subject to a Change of Control in favour of a Competitor of the other Party, the Sub-Licensor shall procure that the sub-licence granted to such Sub-Licensee pursuant to this Clause 10 shall terminate immediately on, or prior to, such Change of Control taking effect, with failure to do so constituting a Material Breach by the Sub-Licensor and subject to the terms of Clause 14 (Duration, Termination and Effect of Termination).
10.1.5 each Sub-Licensor shall be liable for all acts and omissions of its respective Sub- Licensees; and
10.1.6 any Sub-Licensee of a Sub-Licensor shall first enter into an agreement with the Sub-Licensor in writing and containing terms equivalent to the terms of this Agreement, the Sub-Licensor shall provide information in respect of and/or a copy of which to the other Party, upon reasonable request and subject to Applicable Laws, and each Sub-Licensor agrees to monitor its Sub-Licensees' compliance with such agreement and, if necessary, promptly enforce such agreement either on its own motion or at the request of the other Party.
11. ASSIGNMENT AND OTHER DEALINGS
11.1 Subject to Clauses 10 (Sub-Licensing), 12 (Restrictive Covenants) and 13 (Right of First Refusal):
11.1.1 neither Party shall, without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed), assign, transfer, dispose of, create any Encumbrance in relation to or deal in any other manner with any of its rights or obligations (in whole or in part) under this Agreement and, where the other Party grants consent to any such dealing, only provided that the assignee, transferee, mortgagee, chargee or other relevant party undertakes in writing to the other Party to be bound by the obligations of the first Party under this Agreement; however,
11.1.2 either Party (the "Dealing Party") (or any of that Party's applicable Group Companies) may at any time and without the consent of the other Party assign, transfer, dispose of, create any Encumbrance in relation to or deal in any other manner with:
(A) any of its rights or obligations (in whole or in part) under this Agreement to any of its Group Companies; and/or
(B) subject to Clause 13 (Right of First Refusal), its Background IP (in whole or in part), to any of its Group Companies and/or any third party (the latter being a "Third Party Assignment"), provided that: (i) the Dealing Party shall notify the other Party as soon as possible after any such dealing, and include particulars of the assignee, mortgagee, chargee or other relevant third party; and (ii) the other Party's rights under this Agreement shall continue and the assignee, transferee, mortgagee, chargee or other relevant third party undertakes in writing to the other Party to be bound by the obligations of the Dealing Party under this Agreement.
11.2 Notwithstanding Clause 4 (Confidentiality), but subject, in each case, to the obligations under Clauses 14.1; 14.3 and 14.5 of the Collaboration Agreement (as incorporated into this Agreement by reference, pursuant to Clause 4.1), either Party when assigning or dealing with any or all of its rights under this Agreement may disclose to a permitted proposed assignee, transferee, mortgagee, chargee or other relevant party any information in its possession that relates to this Agreement, the other Project Agreements or their subject matter, the negotiations relating to it and the other Party which is reasonably necessary to disclose for the purposes of the proposed assignment or other dealing, provided that no disclosure pursuant to this Clause 11.2 shall be made until notice of the identity of the proposed assignee, transferee, mortgagee, chargee or other relevant party has been given to the other Party, and takes into account the reasonable requests of the other Party in relation to such disclosure.
11.3 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
11.4 Save as otherwise permitted under this Clause 11, this Agreement shall be personal to each of the Parties but shall bind and enure to the benefit of permitted successors in title and permitted assignees of each Party. Each Party shall and shall procure that any successor or permitted assign of such Party is notified of the terms of this Agreement.
11.5 Each Party shall, and shall procure that its Group Companies shall, upon reasonable request from the other Party, execute, or use Commercially Reasonable Efforts to procure the execution of, any agreements or other instruments (including any supplement or amendment to this Agreement) which may be reasonably required in order to give effect to or perfect any permitted assignment, transfer, mortgage, charge, trust or other dealing referred to in this Clause 11.
12. RESTRICTIVE COVENANTS
The provisions of Clause 17 of the Collaboration Agreement (Restrictive Covenants) shall apply mutatis mutandis, as if set out in this Agreement.
13. [Redacted]
13.1 [Redacted]
13.1.1 [Redacted]
13.1.2 [Redacted]
13.2 [Redacted]
13.2.1 [Redacted]
13.2.2 [Redacted]
13.3 [Redacted]
13.3.1 [Redacted]
13.3.2 [Redacted]
14. DURATION, TERMINATION AND EFFECT OF TERMINATION
14.1 This Agreement shall come into force on the Effective Date and, unless terminated earlier in accordance with Clause 18 of the Collaboration Agreement (Duration and Termination), shall remain in force for the Term and the provisions of Clauses 18 (Duration and Termination) and 19 (Effect of Termination) of the Collaboration Agreement shall apply mutatis mutandis, as if set out in this Agreement.
14.2 The expiry or termination of this Agreement, for any reason, shall not affect any provision of the Project Agreements which is expressed to survive or operate in the event of expiry or termination, in addition to Clauses 1 (Definitions and Interpretation), 4 (Confidentiality); 5.2 and 5.3 (Protection and Maintenance of Background IP); 7 (Financial Contributions); 9 (Limitation of Liability); 10.1.3 (Sub-Licensing); 15 (Further Assurance); 19 (Severance); 21 (Third Party Rights); 22 (No Partnership or Agency); 23 (Non-Solicitation); 24 (Notices); 25 (Service of Process); 28 (Inadequacy of Damages); 29 (Dispute Resolution Procedure); and 30 (Governing Law) of this Agreement, and shall be without prejudice to the provisions of this Clause 14 and to any rights of either Party under this Agreement or any of the other Project Agreements which may have accrued by, at, or up to, the date of such expiry or termination.
14.3 The provisions of Clause 14.2 shall remain in effect notwithstanding termination or expiry of this Agreement.
15. FURTHER ASSURANCE
Save as stated otherwise in this Agreement, at its own cost and expense, each Party shall, and shall use Commercially Reasonable Efforts to procure that any necessary third party shall, promptly execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
16. WAIVER
No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
17. ENTIRE AGREEMENT
17.1 Together with the Investor Rights Agreement, the Subscription Agreement, the Collaboration Agreement and the PDC Developed Foreground IP Licence, this Agreement and the documents referred to in it constitute the whole Agreement between the Parties and supersede any previous agreement between the Parties relating to its subject matter.
17.2 Each of the Parties acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether negligently or innocently made) other than as expressly set out in the Project Agreements.
17.3 Nothing in this Clause 17 shall limit or exclude any liability for fraud (including fraudulent misrepresentation).
18. VARIATION
No variation of this Agreement shall be effective unless it is in writing (which shall not include email) and signed by the Parties (or their authorised representatives).
19. SEVERANCE
19.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
19.2 If any provision or part-provision of this Agreement is deemed deleted under Clause 19.1, the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
20. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same Agreement. No counterpart shall be effective until each Party has executed at least one counterpart.
21. THIRD PARTY RIGHTS
21.1 The Group Companies and Representatives of each Party may enforce all Clauses of this Agreement pursuant to which they are granted rights (whether expressly or by implication), in accordance with the Contracts (Rights of Third Parties) Act 1999 (the "Act").
21.2 Except as provided in Clause 21.1, no person other than a Party to this Agreement, and their respective successors and permitted assigns, shall have any rights to enforce any term of this Agreement, whether under the Act or otherwise.
21.3 The rights of the Parties to rescind or vary this Agreement are not subject to the consent of any other person.
22. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute either Party the agent of the other Party, nor authorise either Party to make or enter into any commitments for or on behalf of the other Party.
23. NON-SOLICITATION
Each Party agrees that it shall not (and shall procure that no member of its Group shall), without the prior written consent of the other Party, during the Term and for a period of six
(6) months following its termination, solicit or induce any director, officer, employee, agent or contractor of the other Party or any of its Group, involved with the Development Activities or the rights and obligations granted under this Agreement, to terminate their employment or engagement with the other Party or such member of its Group (as applicable). This Clause shall not prevent any Party nor any of its Group Companies from considering or accepting the application of any person who: (i) independently initiates employment or engagement discussions without any prior direct or indirect solicitation; or (ii) is recruited solely through the placing of a public advertisement of a post available to a member of the public generally or solely through an employment agency (provided that neither the relevant Party nor any of its Group Companies encouraged the agency to approach the relevant individual).
24. NOTICES
24.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered personally, or sent by prepaid first-class post or recorded delivery or by commercial courier, to each Party required to receive the notice at its address as set out below:
24.1.1 BAT: James Barrett, Head of M&A, at Globe House, 4 Temple Place, London WC2R 2PG; [Redacted]; and
24.1.2 OGI: Greg Engel at 333 Bay Street, Suite 1250, Toronto, Ontario; [Redacted], with a copy to Neill May at 333 Bay Street, Suite 3400, Toronto, Ontario; [Redacted],
or as otherwise specified by the relevant Party by notice in writing to the other Party.
24.2 Any notice shall be deemed to have been duly received:
24.2.1 if delivered personally, when left at the address and for the contact referred to in Clause 24.1;
24.2.2 if sent by prepaid first-class post or recorded delivery, at 9.00 am on the Business Day after posting;
24.2.3 if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or
24.2.4 if delivered by email (where permitted), four (4) hours after the time at which the email is sent (in the time zone of the postal address specified for the recipient in Clause 24.1) to the email address(es) specified for that Party in Clause 24.1, provided that the sender does not within that four (4) hour period receive a delivery failure or delay notification in respect of the email address (or, if more than one email address is specified for that Party, in respect of all of the email addresses).
24.3 Unless otherwise stated herein, a notice required to be given under this Agreement shall be validly given if sent by e-mail.
25. SERVICE OF PROCESS
Each Party agrees that, without preventing any other mode of service, any documents in an action (including any claim form or other originating process or any third or other party notice) may be served on any Party by being delivered to or left for that Party at its address for service of notices under Clause 24.1 and each Party undertakes to maintain such an address for service and to notify the other Party in advance of any change from time to time of the details of such address in accordance with the manner prescribed for service of notices under this Clause 25.
26. STATEMENTS AND ANNOUNCEMENTS
26.1 Subject always to Clause 4 (Confidentiality), save in respect of statements that may be objectively considered to be fair, legitimate and not malicious or that constitute lawful comparative advertising, neither Party shall make, publish or cause to be published any statement or do or say anything that may harm or otherwise damage or be detrimental to the other Party or the other Party's Group.
26.2 No Party, nor any of a Party's Group Companies, shall release any announcement or despatch any circular relating to this Agreement, unless the form and content of such announcement or circular have been submitted to, and agreed by, the other Party. Subject always to Clause 4 (Confidentiality), nothing in this Clause 26 shall prohibit any Party from making any announcement or despatching any circular as required by law or regulation or any Regulatory Authority, in which case, the announcement shall only be released or the circular despatched after consultation with the other Party and after taking into account the reasonable requirements of the other Party as to the contents of such announcement or circular. Notwithstanding the foregoing, either Party may release or despatch any announcement or circular previously approved by the other Party for use publicly: (i) where required to comply with Applicable Laws; (ii) for corporate governance purposes; or (iii) for the purposes of engagement with investors, provided, in each case, that the content thereof is not amended or altered and that the republication is not rendered inaccurate or misleading by a change of circumstances or the effluxion of time.
27. COMPLIANCE WITH LAWS AND REGULATIONS
27.1 Each Party shall observe and abide by, and shall require its Group Companies and Representatives to observe and abide by, all Applicable Laws as may apply in relation to the matters contemplated by this Agreement, including any Approvals, both before and after the Approval. Neither Party shall do anything or omit to do anything which will cause the other to be in breach of any Applicable Laws, Regulatory Approval or regulations which have been notified by the other Party.
27.2 Each Party shall (and shall use Commercially Reasonable Efforts to procure that any of its applicable Group Companies and Representatives shall):
27.2.1 comply with all applicable laws, statutes, regulations, and codes relating to anti- bribery and anti-corruption including but not limited to the Bribery Act 2010, OFAC and the BAT Group's Standards of Business Conduct, a true, correct and complete copy of which has been provided by or on behalf of BAT to OGI prior to the Effective Date and, insofar as such Standards may be amended thereafter, as notified by BAT to OGI from time to time during the Term, and insofar as they may reasonably be deemed not to be in conflict with other mandatory legal or regulatory requirements to which the Party in question is subject (together, the "Relevant Requirements");
27.2.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
27.2.3 have and shall maintain in place throughout the Term its own policies and procedures including, but not limited to, adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements; and
27.2.4 promptly report to the other Party any request or demand for any undue financial or other advantage of any kind received by the Party in connection with the performance of this Agreement.
27.3 Each Party acknowledges and agrees that the exercise of the rights granted to it under the Licences is subject to all Applicable Laws in the Territory, codes of practice, Good Industry Practice and the Approvals, and each Party understands and agrees that it shall at all times be solely liable and responsible for such due observance and performance of all (or the highest) of these.
27.4 For the avoidance of doubt, either Party's acceptance or approval of any action taken by or on behalf of the other Party under this Agreement shall not be construed to mean that the Party has considered the application of, or compliance with, any Applicable Law, Approval or other requirement.
28. INADEQUACY OF DAMAGES
Without prejudice to any other rights or remedies that the other Party may have, each Party acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this Agreement by the other Party. Accordingly, each Party shall be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement.
29. DISPUTE RESOLUTION PROCEDURE
29.1 If a Dispute arises then, except as expressly provided in this Agreement, the Parties shall follow the dispute resolution procedure set out in this Clause 29.1:
29.1.1 either Party shall give to the other Party written notice of the Dispute, setting out its nature and full particulars ("Dispute Notice"), together with relevant supporting documents. On service of the Dispute Notice, the PDC Steering Group shall attempt in good faith to resolve the Dispute; and
29.1.2 if the PDC Steering Group is for any reason unable to resolve the Dispute, or fails to meet, within thirty (30) days of service of the Dispute Notice, the Dispute shall be referred to the Head of M&A for BAT and Chief Executive Officer of OGI, who shall attempt in good faith to resolve it.
29.2 Subject to Clause 29.3 and without prejudice to the right to terminate this Agreement pursuant to Clause 14 (Duration, Termination and Effect of Termination), if the Head of M&A for BAT and Chief Executive Officer of OGI are for any reason unable to resolve the Dispute, or fail to meet, within thirty (30) days of it being referred to them, any Dispute shall be referred to and finally resolved by confidential, binding arbitration under the Rules of Arbitration of the International Chamber of Commerce (the "ICC Rules"), which ICC Rules are deemed incorporated into this Agreement, in accordance with the following sub-clauses:
29.2.1 the number of arbitrators shall be three (3);
29.2.2 the language of the arbitration shall be English;
29.2.3 the arbitration agreement shall be governed by the laws of England and Wales;
29.2.4 each Party shall nominate one (1) arbitrator, and the two (2) arbitrators nominated by the Parties shall within thirty (30) calendar days of the nomination of the second arbitrator agree upon a third arbitrator who shall act as Chairman of the Tribunal;
29.2.5 the place of the arbitration shall be New York, United States;
29.2.6 judgment upon any award rendered by the arbitrators may be entered in any court of competent jurisdiction.
29.3 Disputes arising under or in connection with one or more of the Project Agreements at the same time shall be consolidated into a single arbitration, in accordance with the terms of Clause 29.2.
29.4 Nothing contained in this Agreement shall deny either Party the right to seek injunctive, equitable or other interim relief from a court of competent jurisdiction in the context of an emergency or prospective irreparable harm, and such an action may be filed and maintained notwithstanding any ongoing dispute resolution discussions or arbitration proceedings under Clauses 29.1 or 29.2. In addition:
29.4.1 either Party may bring an action in any court of competent jurisdiction to resolve any Dispute pertaining to the ownership, validity, construction, scope, enforceability, infringement or other violations of the Background IP; and
29.4.2 either Party may bring an action in the courts of England and Wales to resolve any Dispute arising under, out of or relating to the Agreement's formation, validity, binding effect or interpretation,
and no such matter shall be subject to arbitration pursuant to this Clause 29.
30. GOVERNING LAW
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
This Agreement has been entered into on the Effective Date.
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SIGNED by |
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John R. Whitener |
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for and on behalf of |
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BT DE INVESTMENTS INC. |
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/s/ "John R. Whitener" "……………………………..…………………… |
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Treasurer |
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SIGNED by |
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Greg Engel |
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for and on behalf of |
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ORGANIGRAM INC. |
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/s/ "Greg Engel" |
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Director |
SCHEDULE 9
PDC DEVELOPED FOREGROUND IP LICENCE
March 10, 2021
BT DE INVESTMENTS INC.
and
ORGANIGRAM INC.
PDC DEVELOPED FOREGROUND IP LICENCE
Herbert Smith Freehills LLP
TABLE OF CONTENTS
THIS AGREEMENT is made on March 10, 2021.
BETWEEN:
(1) BT DE INVESTMENTS INC., a company incorporated and registered in the State of Delaware and whose offices are located at 103 Foulk Road, Suite 111, Wilmington,
Delaware 19803 ("BAT"); and
(2) ORGANIGRAM INC., a company incorporated and registered in Canada (with corporation number 668961 and business number 822317442 RC001) and whose registered office is at 35 English Drive, Moncton, NB E1E 3X3, New Brunswick, Canada ("OGI"),
each of which is referred to in this Agreement as a "Party" or, together, the "Parties". RECITALS:
(A) BAT and OGI Holdings (as defined below) entered into the Investor Rights Agreement and the Subscription Agreement (as each term is defined below) on the Effective Date.
(B) The Parties entered into the Collaboration Agreement and the Background IP Licence (as each term is defined below) on the Effective Date.
(C) Pursuant to the Collaboration Agreement, the Parties agreed that BAT shall own the PDC Developed Foreground IP (as defined below) and shall grant to OGI a licence of the PDC Developed Foreground IP, on the terms of this Agreement.
(D) BAT has therefore agreed to grant, and OGI has agreed to take, a licence of the PDC Developed Foreground IP, on the terms and subject to the conditions set out in this Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
Each of the following words and expressions has the following meanings, unless expressly stated otherwise:
"Agreement" means this Agreement;
"Applicable Law(s)" means all laws, regulations, regulatory requirements and authorisations, directives, statutes, subordinate legislation, common law and civil codes of any jurisdiction, all judgments, orders, notices, instructions, decisions and awards of any court or competent authority or tribunal and all codes of practice having force of law, statutory guidance and policy notes, in each case to the extent applicable to any work carried out pursuant to the Collaboration Agreement or applicable to the Parties (including each Party's Group Companies) or either of them or either Party's (or either Party's Group Companies) obligations under the Project Agreements, including the Data Protection Legislation;
"Approvals" means, together, any Marketing Authorisation(s) and/or Regulatory Approval(s);
"Background IP" has the meaning given to it in the Background IP Licence;
"Background IP Licence" means the Background IP Licence entered into between BAT and OGI, on the Effective Date;
"BAT Competitor" has the meaning given to it in the Collaboration Agreement;
"Business Day" has the meaning given to it in the Subscription Agreement;
"Collaboration Agreement" means the Collaboration Agreement entered into between BAT and OGI, on the Effective Date, pursuant to which BAT and OGI agreed, amongst other things, to collaborate to undertake the Development Activities;
"Commercialisation Activities" means product stewardship, product and consumer testing, the application for, obtaining and other activities required in relation to Approvals, manufacture for sale, brand marketing, trade marketing, distribution, import, export, supply, offer for sale, sale, provision of product support and other commercialisation activities in relation to Future Cannabis Products, including arranging for any of these activities to be carried out by a Group Company or other permitted Representative;
"Commercially Reasonable Efforts" of a Party (or a Party's Group Companies) shall mean such efforts as a reasonable and prudent party, acting properly in its own commercial interest and applying its mind to its contractual obligations, would take to attempt to fulfil an obligation, but shall not include any obligation on that Party (or a Party's Group Companies) to pay cash or other value to a third party, to incur incremental costs or to take any such steps which may be commercially detrimental to that Party (or a Party's Group Companies), in any way;
"Competitor" has the meaning given to it in the Collaboration Agreement;
"Confidential Information" of a Party means all confidential information, Know-how or other information reasonably considered to be confidential because it is deemed to be secret and has been subject to reasonable steps to keep it secret (and whether in writing or otherwise and no matter in what form or what medium held or generated, recorded or preserved) disclosed by or on behalf of such Party or any of its Group Companies or Representatives or otherwise made available to the other Party or any of its Group Companies or Representatives, whether made available orally, visually, in writing, in electronic form or by any other means, regardless of whether any of the foregoing are marked "confidential" or "proprietary", and whether before or after the date of this Agreement, in connection with this Agreement, including:
(a) the terms of this Agreement, each of the other Project Agreements and any other agreement or arrangement contemplated by this Agreement or any of the other Project Agreements;
(b) the existence, nature or status of any discussions between the Parties or between the Parties, respectively, and any of the Parties' Group Companies;
(c) any information of whatever nature (and whether or not technical) and which relates to:
(i) financial, marketing and technical information, specifications, ideas, concepts, technology, processes and knowledge, research and development; or
(ii) the business, or any other business, finances, assets, liabilities, dealings, customers, suppliers, processes, affairs, prices, discounts, margins, current trading performance or future business strategy,
of either Party, or any member of their respective Groups, from time to time; and
(d) any other information (whether or not technical) that would be regarded as confidential by a reasonable business person;
"Control" has the meaning given to it in the Collaboration Agreement, save that, with respect only to its use in relation to Sub-Licensees of OGI in Clause 10.1.3 hereof:
(a) sub-paragraph (a) of the definition shall not apply;
(b) references to "OGI" in sub-paragraph (b) of the definition shall be understood to mean "a Sub-Licensee of OGI"; and
(c) references to "either Party" in sub-paragraph (c) of the definition shall be understood to mean "a Sub-Licensee of OGI";
"Data Protection Legislation" means all relevant legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data and data protection (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a Party (or any of a Party's Group Companies);
"Development Activities" has the meaning given to it in the Collaboration Agreement;
"Dispute" means any dispute, claim, controversy or difference arising out of or in connection with this Agreement, including any question regarding its existence, validity, subject matter, interpretation, negotiation, termination or enforceability, the performance of it and any dispute, claim, controversy or difference regarding any non-contractual obligations arising out of or in connection with it;
"Dispute Notice" has the meaning given to it in Clause 28.1.1;
"Effective Date" means the date of this Agreement;
"Encumbrance" means any claim, option, mortgage, pledge, lien, charge (fixed or floating), hypothecation, equity, right to acquire, right of pre-emption, right of first refusal, title retention, security interest or other agreement or arrangement which has the same or a similar effect to the granting of security;
"Enforcement Action" has the meaning given to it in Clause 6.2.1;
"Exploitation" or "Exploit" has the meaning given to it in the Collaboration Agreement;
"Field of Use" means all fields of use related to the Exploitation of Future Cannabis Products;
"Future Cannabis Products" has the meaning given to it in the Collaboration Agreement;
"Good Industry Practice" means the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a leading company within the relevant sector;
"Group" means, in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company (and any of the same shall be a "member of the Group");
"Group Company" means any company within any Group;
"Holding company" and "subsidiary" have the meanings given to them in the Collaboration Agreement;
"Independent Exploitation and Commercialisation Activities" has the meaning given to it in the Collaboration Agreement;
"Intellectual Property Rights" means rights to inventions (whether patentable or not), patents, supplementary protection certificates, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off and unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including Know-how) and any other intellectual property rights and proprietary rights, including all applications for (and rights to apply for and be granted) registrations, renewals or extensions of, and rights to claim priority from, such rights, Know-how and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;
"Investor Rights Agreement" means the Investor Rights Agreement entered into between BAT and OGI Holdings, on the Effective Date;
"IP Costs" means all reasonable external costs, fees and expenses in connection with: (i) the drafting, filing, prosecution and protection of all applications for the registration of Intellectual Property Rights or supplementary protection certificate applications comprised within the PDC Developed Foreground IP; (ii) the maintenance and extension of all registrable Intellectual Property Rights comprised within the PDC Developed Foreground IP; and (iii) the enforcement of the PDC Developed Foreground IP in connection with this Agreement, including:
(a) the filing and prosecution of applications for and the maintenance and renewal of Patents and other registrable Intellectual Property Rights;
(b) the defence and enforcement of the Intellectual Property Rights comprised within the PDC Developed Foreground IP;
(c) proceedings before any of the Key Registries or other appropriate forum for the grant of registrable Intellectual Property Rights or any appeal tribunal therefrom in any country;
(d) professional advice on intellectual property matters relating to Intellectual Property Rights comprised within the PDC Developed Foreground IP;
(e) attorney's and agent's fees and commissions; and
(f) any other expenditure which may be agreed between the Parties from time to time,
in each case on a pure costs recovery basis, with no uplift, and excluding any internal costs, fees and expenses incurred in relation to the relevant Party's (or the relevant Party's Group Companies') employees and personnel;
"Key Registries" means the Canadian Intellectual Property Office, the United States Patent and Trademark Office, the UK Intellectual Property Office, the EU Intellectual Property Office and the European Patent Office;
"Know-how" has the meaning given to it in the Collaboration Agreement;
"Licences" means the licences and other rights granted or to be granted under Clause 2 (Grant) of this Agreement that may be exercised by OGI from time to time under this Agreement;
"Marketing Authorisation" has the meaning given to it in the Collaboration Agreement;
"Material Breach" has the meaning given to it in the Collaboration Agreement;
"Net Proceeds" has the meaning given to it in the Collaboration Agreement;
"OFAC" means the Office of Foreign Assets Control of the Department of Treasury of the United States of America;
"Offer" has the meaning given to it in Clause 11.3.1;
"OGI Holdings" means Organigram Holdings Inc., a company incorporated and registered in Canada (with corporation number 969981-3 and business number 804424059RC0001) and whose registered office is at 35 English Drive, Moncton, NB E1E 3X3, New Brunswick, Canada;
"Patents" means:
(a) all patents, utility models, certificates of invention, applications for certificates of invention, priority patent filings and patent applications, and similar statutory rights for the protection of inventions; and
(b) any renewals, divisions, continuations (in whole or in part), or requests for continued examination of any of such patents, certificates of invention and patent applications, any and all patents or certificates of invention issuing thereon, and any and all reissuances, re-examinations, extensions, divisions, renewals, substitutions, confirmations, registrations, revalidations, revisions, and additions of or to any of the foregoing,
which are comprised within PDC Developed Foreground IP;
"PDC" has the meaning given to it in the Collaboration Agreement;
"PDC Developed Foreground IP" has the meaning given to it in the Collaboration Agreement, including, for clarity, any patents and patent applications relating to any territory requested by OGI under Clause 4.1.2;
"PDC Steering Group" has the meaning given to it in the Collaboration Agreement;
"Products" has the meaning given to it in the Collaboration Agreement;
"Project Agreements" means, together: (i) the Investor Rights Agreement; (ii) the Subscription Agreement; (iii) the Collaboration Agreement; (iv) the Background IP Licence; and (v) this Agreement;
"Prosecution Action" has the meaning given to it in Clause 4.1;
"Regulatory Approval" has the meaning given to it in the Collaboration Agreement;
"Regulatory Authority" has the meaning given to it in the Collaboration Agreement;
"Relevant Requirements" has the meaning given to it in Clause 26.2.1;
"Representatives" has the meaning given to it in the Collaboration Agreement and, for the purposes of this Agreement, shall (for the avoidance of doubt) include Sub-Licensees;
"Sub-Licensee" has the meaning given to it in Clause 10.1;
"Subscription Agreement" means the Subscription Agreement entered into between BAT and OGI Holdings, on the Effective Date;
"Term" means the indefinite duration of this Agreement, subject to the provisions of Clause 13 of this Agreement (Duration, Termination and Effect of Termination) and Clause 18 of the Collaboration Agreement (Duration and Termination);
"Territory" means all regions, countries and territories of the world;
"Third Party Assignment" has the meaning given to it in Clause 11.2.4; and
"UK" means the United Kingdom.
1.2 References to this Agreement and other Agreements
In this Agreement, except where the context otherwise requires:
1.2.1 a reference to a Clause is a reference to a Clause of, or to, this Agreement;
1.2.2 the contents page and headings are for convenience only and shall not affect the interpretation of this Agreement;
1.2.3 a reference to this Agreement includes this Agreement as amended or supplemented in accordance with its terms; and
1.2.4 a reference to any agreement or other instrument (other than an enactment or statutory provision) is to that agreement or instrument as from time to time amended, varied, supplemented, substituted, novated or assigned otherwise than in breach of this Agreement.
1.3 Precedence
In this Agreement, except where the context otherwise requires, to the extent that the terms of this Agreement conflict with the provisions of any of the other Project Agreements, the terms of this Agreement take precedence, to the extent of the inconsistency, except to the extent that: (i) a defined term or Clause of another Project Agreement is expressly incorporated herein, by reference; or (ii) the applicable Project Agreement expressly and specifically states an intent to supersede this Agreement on a specific matter.
1.4 Singular, plural and gender
Words in the singular include the plural and vice versa and a reference to one gender includes other genders.
1.5 References to persons and companies
In this Agreement, except where the context otherwise requires:
1.5.1 a reference to a person includes a reference to any individual, firm, company, government, state or agency of a state, local or municipal authority or government body or any joint venture, association or partnership (whether or not having separate legal personality);
1.5.2 a reference to a company includes any company, corporation or other body corporate wherever and however incorporated or established;
1.5.3 a reference to an individual includes that individual's estate and personal representatives; and
1.5.4 a person shall be deemed to be connected with another if that person is connected with another within the meaning of section 1122 of the Corporation Tax Act 2010.
1.6 References to time periods
In this Agreement, except where the context otherwise requires:
1.6.1 a reference to a time of day is to London, United Kingdom time;
1.6.2 a reference to a day (including within the defined term "Business Day") means a period of twenty-four (24) hours ending at midnight; and
1.6.3 any period of time is calculated exclusive of the day from which the time period is expressed to run or the day upon which the event occurs which causes the period to start running.
1.7 References to legislation and legal terms
In this Agreement, except where the context otherwise requires:
1.7.1 a reference to an enactment, EU instrument or statutory provision shall include a reference to any subordinate legislation made under the relevant enactment, EU instrument or statutory provision and is a reference to that enactment, EU instrument, statutory provision or subordinate legislation as from time to time amended, modified, incorporated or reproduced and to any enactment, EU instrument, statutory provision or subordinate legislation that from time to time (with or without modifications) re-enacts, replaces, consolidates, incorporates or reproduces it;
1.7.2 a reference to any English statute or enactment includes any equivalent or analogous laws or rules in any other jurisdiction to the extent that such jurisdiction is relevant to the transactions contemplated by this Agreement; and
1.7.3 a reference to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept includes what most nearly approximates the English legal term in any jurisdiction other than England to the extent that such jurisdiction is relevant to the transactions contemplated by this Agreement.
1.8 Includes and including
In this Agreement, except where the context otherwise requires:
1.8.1 the words and phrases "includes", "including", "in particular" (or any terms of similar effect) shall not be construed as implying any limitation; and
1.8.2 general words shall not be given a restrictive meaning because they are preceded or followed by particular examples.
1.9 Writing
A reference to writing includes any modes of reproducing words in any legible form and, except where expressly stated otherwise, shall include email.
2. GRANT
2.1 Subject to the terms of this Agreement and in consideration for the mutual promises, covenants and obligations of the Parties pursuant to the Project Agreements, BAT hereby grants to OGI, throughout the Term, in each case on a royalty-free basis:
2.1.1 a non-exclusive, perpetual, non-transferable licence under and to the PDC Developed Foreground IP for all and any purposes within and outside the Field of Use, throughout the Territory (subject to the terms set out in Clause 2.1.2, in respect of purposes within and outside the Field of Use in Canada); and
2.1.2 a sole, perpetual, non-transferable licence under and to the PDC Developed Foreground IP for all and any purposes within and outside the Field of Use in Canada (which, for the avoidance of doubt, shall be subject to: (i) BAT's rights to grant licences to its Group Companies; and (ii) BAT's (and any applicable BAT Group Company's) rights to grant sub-licences to Representatives, in each case with respect to BAT's (or the applicable BAT Group Company's) own Independent Exploitation and Commercialisation Activities in Canada with respect to BAT's (or a BAT Group Company's) own products). Further, and subject to and in accordance with the terms of Clause 12 (Restrictive Covenants), in no event shall BAT (or any applicable Group Company) grant a sub-licence under or to the PDC Developed Foreground IP to any OGI Competitor, with the exception of Medipharm or Valens to the extent that these parties are engaged in the provision of manufacturing services to BAT (or any applicable BAT Group Company).
2.2 Subject to Clauses 2.1 and 12 (Restrictive Covenants), OGI shall have the right to grant sub- licences and to sub-contract the rights granted to it under this Agreement, in accordance with the terms of Clause 10 (Sub-Licensing).
2.3 OGI undertakes only to make use of the PDC Developed Foreground IP for the purposes expressly authorised in this Agreement and the Background IP Licence.
2.4 Subject to Clause 2.5 and BAT's (and BAT's applicable Group Companies') rights to grant licences and sub-licences as clarified in Clause 2.1.2, BAT undertakes not to otherwise grant to any third party any right or licence to the PDC Developed Foreground IP within and outside the Field of Use in Canada.
2.5 During the Term, the Parties agree that the sole nature of the licence granted under Clause
2.1.2 and BAT's undertaking under Clause 2.4 shall endure until the registrable Intellectual Property Rights comprised within the PDC Developed Foreground IP relating to Canada have expired, lapsed, been abandoned or been held unenforceable, at which point any residual licensed rights in respect of the non-registrable Intellectual Property Rights comprised within the PDC Developed Foreground IP granted under Clause 2.1.2 shall otherwise continue as granted.
2.6 Subject to Clause 2.9, BAT shall record the licence granted to OGI under this Clause 2 in respect of the Patents at the Key Registries, in each case as far as reasonably practicable and at OGI's sole cost and expense.
2.7 Subject to Clause 2.9, OGI may, but shall not be obliged to, record the licence granted to it under this Clause 2 in respect of any other Intellectual Property Rights within the PDC Developed Foreground IP, to the extent such rights are granted to OGI under this Clause 2, at such other intellectual property registries in such other jurisdictions as the Parties may agree in writing, in each case at OGI's sole cost and expense.
2.8 Each Party shall provide reasonable assistance to the other Party, upon the other Party's reasonable written request, to enable the other Party to record the licence granted to OGI pursuant to Clauses 2.6 or 2.7, in each case at the requesting Party's sole cost and expense, including in the drafting and execution of short-form licences and any applicable recordal forms, if required.
2.9 For the avoidance of doubt, the Parties acknowledge and agree that this Agreement is considered to be Confidential Information and neither Party (nor any of its Group Companies or Representatives) shall file, record or register a copy of this Agreement (whether in redacted form or otherwise) with any intellectual property registry.
3. CONFIDENTIALITY
3.1 Subject to Clause 4.3, the provisions of Clause 14 of the Collaboration Agreement (Confidentiality) shall apply mutatis mutandis, as if set out in this Agreement.
3.2 The provisions of this Clause 3 shall remain in force notwithstanding expiry or earlier termination of this Agreement.
4. PROTECTION AND MAINTENANCE OF PDC DEVELOPED FOREGROUND IP
4.1 BAT shall (or shall procure that one of BAT's Group Companies or Representatives shall) be responsible for and shall use its Commercially Reasonable Efforts to draft, file and prosecute applications for, maintain and renew the PDC Developed Foreground IP that is capable of registration ("Prosecution Action"), during the Term, in each case in such jurisdictions as either:
4.1.1 BAT shall determine, in its discretion, acting reasonably and in consultation with OGI (via meetings of the PDC Steering Group, in the first instance, or otherwise with OGI directly), at BAT's (or a BAT Group Company's) sole cost and expense (to include all IP Costs); or
4.1.2 where BAT determines not to apply to register any PDC Developed Foreground IP, as OGI requires, upon request and notification by OGI to BAT in writing, in each case with all related IP Costs being the sole responsibility of OGI.
4.2 OGI shall reimburse BAT, in accordance with Clause 7 (Financial Contributions), all IP Costs incurred by BAT (or a BAT Group Company) pursuant to Clause 4.1.2.
4.3 Without limiting the scope of Clause 3 (Confidentiality), neither OGI nor any OGI Group Company shall disclose any PDC Developed Foreground IP that is Confidential Information without the prior written consent of BAT, not to be unreasonably withheld or delayed, save to the extent that OGI is required to disclose such information in connection with or in furtherance of its Commercialisation Activities (subject always to the terms of Clause 3 (Confidentiality)).
4.4 With respect to the PDC Developed Foreground IP registered or maintained in accordance with BAT's obligations under Clauses 4.1.1 and 4.1.2, BAT shall not abandon or let lapse any such PDC Developed Foreground IP, except with the prior written consent of OGI, not to be unreasonably withheld or delayed.
4.5 OGI shall:
4.5.1 promptly provide to BAT (or any relevant BAT Group Company) any assistance, information and/or instructions which BAT (or the applicable Group Company) reasonably requires to allow BAT to comply with its obligations under Clause 4.1;
4.5.2 comply with all Applicable Laws to safeguard BAT's (or any applicable BAT Group Company's) rights in the PDC Developed Foreground IP;
4.5.3 not, nor directly or indirectly assist any other person to, do or omit to do anything to diminish the rights of BAT (or any applicable BAT Group Company) in the PDC Developed Foreground IP or impair any registration of any of the PDC Developed Foreground IP, provided that OGI is free to challenge the validity of the PDC Developed Foreground IP or the secrecy or substantiality of the Know-how comprised within the PDC Developed Foreground IP; and
4.5.4 promptly take all necessary steps to facilitate BAT's application for any supplementary protection certificates, or any extension of, any patents comprised within the PDC Developed Foreground IP, under any Applicable Law,
provided that BAT shall reimburse to OGI all reasonable out-of-pocket expenses incurred by OGI in complying with its obligations under Clauses 4.5.1 or 4.5.4.
4.6 Without limiting the effect of Clause 4.5, OGI shall:
4.6.1 promptly notify BAT of the number and date of the first and any subsequent Approval to place Products on the market in any jurisdiction in which BAT may be able to apply for any supplementary protection certificate;
4.6.2 promptly and free of charge provide to BAT:
(A) a copy of every Approval meeting the requirements of Article 8.1(b) of Council Regulation (EC) 469/2009 (and of any additional applicable requirements imposed by relevant national law) in respect of all Products;
(B) information meeting the requirements of Article 8.1(c) of Council Regulation (EC) 469/2009 and a copy of the notice publishing the Approval in the appropriate official publication (and information and documents meeting any additional requirements imposed by relevant national law); and
(C) any additional information and documents which OGI has or which it can reasonably obtain and which is necessary for applying for any supplementary protection certificate; and
4.6.3 permit use of documents and information provided under this Clause 4.6 for the purpose of applying for a supplementary protection certificate or certificates.
5. SUPPLEMENTARY PROTECTION CERTIFICATES
5.1 BAT may disclose any Approval to any appropriate Regulatory Authority or applicable patent office for the purpose of obtaining a supplementary protection certificate in respect of the Products, to the extent that such protection becomes available during the Term.
5.2 BAT shall promptly notify OGI of the application for and grant of every supplementary protection certificate in respect of Products.
5.3 Following consultation with OGI (via meetings of the PDC Steering Group, in the first instance, or otherwise with OGI directly), BAT shall not be obliged to apply for the grant of any supplementary protection certificates or for the extension of any Patents.
5.4 OGI may participate in negotiations with any appropriate or applicable Regulatory Authority or applicable patent office (save where, or to the extent that, such negotiations are not applicable or such participation is precluded), for the grant of any supplementary protection certificate relating to any Product, whether such negotiation is required by Law or where OGI has requested advance written consent from BAT, which shall not be unreasonably denied or delayed.
6. ENFORCEMENT OF THE PDC DEVELOPED FOREGROUND IP
6.1 Each Party shall use its Commercially Reasonable Efforts to notify (or procure the notification of) the other Party in writing, giving full particulars, if any of the following matters come to its attention:
6.1.1 any actual, suspected or threatened infringement of any of the PDC Developed Foreground IP;
6.1.2 any actual, suspected or threatened unauthorised disclosure, misappropriation or misuse of any Know-how comprised within the PDC Developed Foreground IP;
6.1.3 any actual or threatened claim that any of the PDC Developed Foreground IP is invalid;
6.1.4 any actual or threatened opposition to any of the PDC Developed Foreground IP; or
6.1.5 any claim made or threatened that Exploitation of any of the PDC Developed Foreground IP infringes the rights (including Intellectual Property Rights) of any third party;
6.1.6 any other form of attack, challenge, charge or claim to which the PDC Developed Foreground IP may be subject.
6.2 In respect of any of the matters listed in Clause 6.1:
6.2.1 BAT shall have the first right, in its discretion, to decide what action, if any, to take (the "Enforcement Action");
6.2.2 if BAT decides, in its discretion, to institute proceedings, it may do so in its name alone or in the name of BAT (and/or any BAT Group Company) and/or with OGI (provided that OGI shall only be named in any such proceedings with OGI's prior written consent);
6.2.3 BAT (or any applicable BAT Group Company) shall have exclusive control over, and conduct of, all claims, disputes, proceedings and settlements;
6.2.4 OGI shall not make any admissions, other than to BAT;
6.2.5 BAT (or any applicable BAT Group Company) shall bear the costs and expenses of any such Enforcement Action (including any IP Costs);
6.2.6 OGI shall provide to BAT, upon BAT's reasonable request, any assistance, information and/or instructions which BAT may reasonably require to allow BAT to take any Enforcement Action contemplated by this Clause 6.2 or in the conduct of any such claims or proceedings, at reasonable cost and expense to be borne by BAT (or one of BAT's Group Companies); and
6.2.7 BAT shall provide to OGI, upon OGI's reasonable request, such information as BAT is not prevented by law or any obligations of confidentiality from disclosing to OGI, in respect of any such Enforcement Action.
6.3 In the event that BAT or one of BAT's Group Companies does not:
6.3.1 initiate any relevant Enforcement Action in respect of Intellectual Property Rights comprised within the PDC Developed Foreground IP within sixty (60) days of notification of the relevant matter under Clause 6.1; or
6.3.2 initiates, but decides not to proceed with, any such Enforcement Action in respect of Intellectual Property Rights comprised within PDC Developed Foreground IP,
OGI shall have the right to (but shall not be obliged to) initiate and/or proceed with any such Enforcement Action as OGI determines is necessary, to the extent that there will otherwise be some detriment to OGI's business or commercial interests, in OGI's absolute discretion. OGI shall not institute any claim, registry proceedings or other legal proceedings in respect of the PDC Developed Foreground IP, save as permitted by this Clause 6.3 or as otherwise expressly authorised in writing by BAT.
6.4 In the event that OGI elects to proceed with any Enforcement Action pursuant to its rights under Clause 6.3:
6.4.1 OGI shall do so in its name alone, with BAT (or any of BAT's Group Companies) being unnamed in any such Enforcement Action, to the fullest extent possible under Applicable Laws;
6.4.2 OGI shall have exclusive control over, and conduct of, all such claims and proceedings;
6.4.3 BAT shall not make any admissions, other than to OGI;
6.4.4 OGI shall bear the costs and expenses of initiating or continuing any such Enforcement Action (including any IP Costs);
6.4.5 BAT shall provide to OGI, upon OGI's reasonable request, any assistance, information and/or instructions which BAT is not prevented by law or any obligations of confidentiality from disclosing to OGI and which OGI reasonably requires to allow OGI to take or continue any Enforcement Action contemplated by Clause 6.2 or in the conduct of any such claims or proceedings, at reasonable cost and expense to be borne by OGI (or one of OGI's Group Companies);
6.4.6 OGI shall provide to BAT, upon BAT's reasonable request, such information as OGI is not prevented by law or any obligations of confidentiality from disclosing to BAT, in respect of any such Enforcement Action; and
6.4.7 OGI shall reimburse to BAT all costs incurred by BAT (or any of BAT's Group Companies) relating to any Enforcement Action contemplated or taken by OGI pursuant to Clauses 6.3 and 6.4.
6.5 Any sums recovered in any action taken by either of BAT or OGI (or any of their respective Group Companies on their behalf) pursuant to Clauses 6.2 or 6.3 (respectively, the "Enforcing Party") shall: (i) first be applied to pay the IP Costs incurred by the other Party in providing the assistance and cooperation provided for under Clauses 6.2.6 and 6.4.5; (ii) secondly, applied to pay the IP Costs incurred by the Enforcing Party, for its own account; and (iii) to the extent any sums remain after those payments have been made, shall be shared pro-rata between the Parties, to reflect their respective business losses.
7. FINANCIAL CONTRIBUTIONS
In respect of payments to be made by one Party to the other under this Agreement, the provisions of Clauses 10.6 to 10.12 of the Collaboration Agreement (Funding and Invoicing), inclusive, shall apply mutatis mutandis, as if set out in this Agreement.
8. NOTIFICATION AND CONSULTATION RELATING TO ENFORCEMENT ACTIONS
The Parties shall keep each other reasonably informed of any Prosecution Action, Enforcement Action and any action undertaken pursuant to Clause 5 (Supplementary Protection Certificates), through scheduled meetings of the PDC Steering Group and prescribed periodic reporting of all material developments in connection with the same.
9. LIMITATION OF LIABILITY
9.1 Nothing in this Agreement shall constitute any representation or warranty by either Party that:
9.1.1 any PDC Developed Foreground IP is valid or relevant to the Future Cannabis Products or the Development Activities;
9.1.2 any application for registration of any PDC Developed Foreground IP shall proceed to grant or, if granted, shall be valid; or
9.1.3 the exercise by OGI of the Licences granted to it will not infringe the rights (including Intellectual Property Rights) of any person.
9.2 To the fullest extent permitted by law:
9.2.1 BAT shall not be liable to OGI for any costs, expenses, loss or damage (whether direct, indirect or consequential and whether economic or other) arising out of the way in which BAT, any of BAT's applicable Group Companies, or any of its or their employees, consultants or agents chooses to exercise its discretion relating to any of the activities under Clauses 4.1, 4.4 or 6.2, provided that it has complied with its obligations under this Agreement; and
9.2.2 any warranties, conditions and other terms implied by statute or common law are excluded from this Agreement, except as expressly provided in this Agreement.
9.3 Nothing in this Agreement shall have the effect of excluding or limiting any liability for death or personal injury caused by negligence or for fraud (including fraudulent misrepresentation).
9.4 The provisions of this Clause 9 shall remain in effect notwithstanding termination or expiry of this Agreement.
10. SUB-LICENSING
10.1 Subject to Clause 12 (Restrictive Covenants), the terms of the Collaboration Agreement and the provisions set out in Schedule 7 thereof, OGI shall have the right to grant to: (i) any Group Company of OGI; and (ii) any other person (including any subcontractor) (each a "Sub- Licensee"), a sub-licence of any of its rights under this Agreement for the purposes of assisting with any Commercialisation Activities OGI sees fit to undertake, provided that:
10.1.1 prior to granting any such sub-licence under part (ii) above, for the purposes of permitted Commercialisation Activities, OGI shall enter into discussions with BAT, in good faith, regarding the terms on which BAT may seek exclusive rights to the applicable PDC Developed Foreground IP in any particular market(s) (provided that such obligation upon OGI shall not require OGI to continue such discussions, where doing so may risk impeding OGI's ability to conclude an available sub- licensing opportunity);
10.1.2 all sub-licences granted shall terminate automatically on termination or expiry of this Agreement;
10.1.3 in the event that any Sub-Licensee is subject to a Change of Control in favour of a BAT Competitor, OGI shall procure that the sub-licence granted to it pursuant to this Clause 10 shall terminate immediately on, or prior to, such Change of Control taking effect, with failure to do so constituting a Material Breach by OGI and subject to the terms of Clause 13 (Duration, Termination and Effect of Termination);
10.1.4 OGI shall be liable for all acts and omissions of any Sub-Licensee; and
10.1.5 any Sub-Licensee shall first enter into an agreement with OGI in writing and containing terms equivalent to the terms of this Agreement, information in respect of and/or a copy of which OGI shall provide to BAT upon reasonable request and subject to Applicable Laws, and OGI agrees to monitor the Sub-Licensee's compliance with such agreement and, if necessary, promptly enforce such agreement either on its own motion or at the request of BAT.
11. ASSIGNMENT AND OTHER DEALINGS
11.1 Subject to Clauses 10 (Sub-Licensing), 11.3.2 and 12 (Restrictive Covenants), OGI shall not, without the prior written consent of BAT (such consent not to be unreasonably withheld or delayed), assign, transfer, dispose of, create any Encumbrance in relation to or deal in any other manner with any of its rights or obligations (in whole or in part) under this Agreement and, where BAT grants consent to any such dealing, only provided that the assignee, transferee, mortgagee, chargee or other relevant party undertakes in writing to BAT to be bound by the obligations of OGI under this Agreement.
11.2 Subject to Clause 11.3 and 12 (Restrictive Covenants), BAT may at any time and without the consent of OGI assign, transfer, dispose of, create any Encumbrance in relation to or deal in any other manner with:
11.2.1 any of its rights or obligations (in whole or in part) under this Agreement; and/or
11.2.2 the PDC Developed Foreground IP (in whole or in part), to:
11.2.3 any BAT Group Company, provided that BAT shall notify OGI as soon as possible after any such dealing and include particulars of the assignee, mortgagee, chargee or other party; and/or
11.2.4 subject to Clause 11.3, any third party (each such assignment, transfer or disposal being a "Third Party Assignment"),
in each case without requiring the consent of OGI and provided that OGI's rights under this Agreement shall continue and the assignee, transferee, mortgagee, chargee or other relevant third party undertakes in writing to OGI to be bound by the obligations of BAT under this Agreement.
11.3 [Redacted]
11.3.1 [Redacted]
11.3.2 [Redacted]
11.4 [Redacted]
11.4.1 [Redacted]
11.4.2 [Redacted]
11.4.3 [Redacted]
11.5 [Redacted]
11.6 Notwithstanding Clause 3 (Confidentiality) of this Agreement, but subject, in each case, to the obligations under Clauses 14.1; 14.3 and 14.5 of the Collaboration Agreement (as incorporated into this Agreement by reference, pursuant to Clause 3.1), either Party when assigning or dealing with any or all of its rights under this Agreement may disclose to a permitted proposed assignee, transferee, mortgagee, chargee or other relevant party any information in its possession that relates to this Agreement, the other Project Agreements or their subject matter, the negotiations relating to it and the other Party which is reasonably necessary to disclose for the purposes of the proposed assignment or other dealing, provided that no disclosure pursuant to this Clause 11.6 shall be made until notice of the identity of the proposed assignee, transferee, mortgagee, chargee or other relevant party has been given to the other Party, and takes into account the reasonable requests of the other Party in relation to such disclosure.
11.7 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
11.8 Save as otherwise permitted under this Clause 11, this Agreement shall be personal to each of the Parties but shall bind and enure to the benefit of permitted successors in title and permitted assignees of each Party. Each Party shall and shall procure that any successor or permitted assign of such Party is notified of the terms of this Agreement.
11.9 Each Party shall, and shall procure that its Group Companies shall, upon reasonable request from the other Party, execute, or use Commercially Reasonable Efforts to procure the execution of, any agreements or other instruments (including any supplement or amendment to this Agreement) which may be reasonably required in order to give effect to or perfect any permitted assignment, transfer, mortgage, charge, trust or other dealing referred to in this Clause 11.
12. RESTRICTIVE COVENANTS
The provisions of Clause 17 of the Collaboration Agreement (Restrictive Covenants) shall apply mutatis mutandis, as if set out in this Agreement.
13. DURATION, TERMINATION AND EFFECT OF TERMINATION
13.1 This Agreement shall come into force on the Effective Date and, unless terminated earlier in accordance with Clause 18 of the Collaboration Agreement (Duration and Termination), shall remain in force for the Term and the provisions of Clauses 18 (Duration and Termination) and 19 (Effect of Termination) of the Collaboration Agreement shall apply mutatis mutandis, as if set out in this Agreement.
13.2 The expiry or termination of this Agreement, for any reason, shall not affect any provision of the Project Agreements which is expressed to survive or operate in the event of expiry or termination, in addition to Clauses 1 (Definitions and Interpretation), 3 (Confidentiality); 4.3 (Protection and Maintenance of PDC Developed Foreground IP); 7 (Financial Contributions); 9 (Limitation of Liability); 10.1.2 (Sub-Licensing); 14 (Further Assurance); 18 (Severance); 20 (Third Party Rights); 21 (No Partnership or Agency); 22 (Non-Solicitation); 23 (Notices); 24 (Service of Process); 27 (Inadequacy of Damages); 28 (Dispute Resolution Procedure); and 29 (Governing Law) of this Agreement, and shall be without prejudice to the provisions of this Clause 13 and to any rights of either Party under this Agreement or any of the other Project Agreements which may have accrued by, at, or up to, the date of such expiry or termination.
13.3 The provisions of Clause 13.2 shall remain in effect notwithstanding termination or expiry of this Agreement.
14. FURTHER ASSURANCE
Save as stated otherwise in this Agreement, at its own cost and expense, each Party shall, and shall use Commercially Reasonable Efforts to procure that any necessary third party shall, promptly execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
15. WAIVER
No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
16. ENTIRE AGREEMENT
16.1 Together with the Investor Rights Agreement, the Subscription Agreement, the Collaboration Agreement and the Background IP Licence, this Agreement and the documents referred to in it constitute the whole Agreement between the Parties and supersede any previous agreement between the Parties relating to its subject matter.
16.2 Each of the Parties acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether negligently or innocently made) other than as expressly set out in the Project Agreements.
16.3 Nothing in this Clause 16 shall limit or exclude any liability for fraud (including fraudulent misrepresentation).
17. VARIATION
No variation of this Agreement shall be effective unless it is in writing (which shall not include email) and signed by the Parties (or their authorised representatives).
18. SEVERANCE
18.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
18.2 If any provision or part-provision of this Agreement is deemed deleted under Clause 18.1, the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
19. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same Agreement. No counterpart shall be effective until each Party has executed at least one counterpart.
20. THIRD PARTY RIGHTS
20.1 The Group Companies and Representatives of each Party may enforce all Clauses of this Agreement pursuant to which they are granted rights (whether expressly or by implication), in accordance with the Contracts (Rights of Third Parties) Act 1999 (the "Act").
20.2 Except as provided in Clause 20.1, no person other than a Party to this Agreement, and their respective successors and permitted assigns, shall have any rights to enforce any term of this Agreement, whether under the Act or otherwise.
20.3 The rights of the Parties to rescind or vary this Agreement are not subject to the consent of any other person.
21. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute either Party the agent of the other Party, nor authorise either Party to make or enter into any commitments for or on behalf of the other Party.
22. NON-SOLICITATION
Each Party agrees that it shall not (and shall procure that no member of its Group shall), without the prior written consent of the other Party, during the Term and for a period of six
(6) months following its termination, solicit or induce any director, officer, employee, agent or contractor of the other Party or any of its Group, involved with the Development Activities or the rights and obligations granted under this Agreement, to terminate their employment or engagement with the other Party or such member of its Group (as applicable). This Clause shall not prevent any Party nor any of its Group Companies from considering or accepting the application of any person who: (i) independently initiates employment or engagement discussions without any prior direct or indirect solicitation; or (ii) is recruited solely through the placing of a public advertisement of a post available to a member of the public generally or solely through an employment agency (provided that neither the relevant Party nor any of its Group Companies encouraged the agency to approach the relevant individual).
23. NOTICES
23.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered personally, or sent by prepaid first-class post or recorded delivery or by commercial courier, to each Party required to receive the notice at its address as set out below:
23.1.1 BAT: James Barrett, Head of M&A, at Globe House, 4 Temple Place, London WC2R 2PG; [Redacted]; and
23.1.2 OGI: Greg Engel at 333 Bay Street, Suite 1250, Toronto, Ontario; [Redacted], with a copy to Neill May at 333 Bay Street, Suite 3400, Toronto, Ontario; [Redacted],
or as otherwise specified by the relevant Party by notice in writing to the other Party.
23.2 Any notice shall be deemed to have been duly received:
23.2.1 if delivered personally, when left at the address and for the contact referred to in Clause 23.1;
23.2.2 if sent by prepaid first-class post or recorded delivery, at 9.00 am on the Business Day after posting;
23.2.3 if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or
23.2.4 if delivered by email (where permitted), four (4) hours after the time at which the email is sent (in the time zone of the postal address specified for the recipient in Clause 23.1) to the email address(es) specified for that Party in Clause 23.1, provided that the sender does not within that four (4) hour period receive a delivery failure or delay notification in respect of the email address (or, if more than one email address is specified for that Party, in respect of all of the email addresses).
23.3 Unless otherwise stated herein, a notice required to be given under this Agreement shall be validly given if sent by e-mail.
24. SERVICE OF PROCESS
Each Party agrees that, without preventing any other mode of service, any documents in an action (including any claim form or other originating process or any third or other party notice) may be served on any Party by being delivered to or left for that Party at its address for service of notices under Clause 23.1 and each Party undertakes to maintain such an address for service and to notify the other Party in advance of any change from time to time of the details of such address in accordance with the manner prescribed for service of notices under this Clause 24.
25. STATEMENTS AND ANNOUNCEMENTS
25.1 Subject always to Clause 3 (Confidentiality), save in respect of statements that may be objectively considered to be fair, legitimate and not malicious or that constitute lawful comparative advertising, neither Party shall make, publish or cause to be published any statement or do or say anything that may harm or otherwise damage or be detrimental to the other Party or the other Party's Group.
25.2 No Party, nor any of a Party's Group Companies, shall release any announcement or despatch any circular relating to this Agreement, unless the form and content of such announcement or circular have been submitted to, and agreed by, the other Party. Subject always to Clause 3 (Confidentiality), nothing in this Clause 25 shall prohibit any Party from making any announcement or despatching any circular as required by law or regulation or any Regulatory Authority, in which case, the announcement shall only be released or the circular despatched after consultation with the other Party and after taking into account the reasonable requirements of the other Party as to the contents of such announcement or circular. Notwithstanding the foregoing, either Party may release or despatch any announcement or circular previously approved by the other Party for use publicly: (i) where required to comply with Applicable Laws; (ii) for corporate governance purposes; or (iii) for the purposes of engagement with investors, provided, in each case, that the content thereof is not amended or altered and that the republication is not rendered inaccurate or misleading by a change of circumstances or the effluxion of time.
26. COMPLIANCE WITH LAWS AND REGULATIONS
26.1 Each Party shall observe and abide by, and shall require its Group Companies and Representatives to observe and abide by, all Applicable Laws as may apply in relation to the matters contemplated by this Agreement, including any Approvals, both before and after the Approval. Neither Party shall do anything or omit to do anything which will cause the other to be in breach of any Applicable Laws, Regulatory Approval or regulations which have been notified by the other Party.
26.2 Each Party shall (and shall use Commercially Reasonable Efforts to procure that any of its applicable Group Companies and Representatives shall):
26.2.1 comply with all applicable laws, statutes, regulations, and codes relating to anti- bribery and anti-corruption including but not limited to the Bribery Act 2010, OFAC and the BAT Group's Standards of Business Conduct, a true, correct and complete copy of which has been provided by or on behalf of BAT to OGI prior to the Effective Date and, insofar as such Standards may be amended thereafter, as notified by BAT to OGI from time to time during the Term and insofar as they may reasonably be deemed not to be in conflict with other mandatory legal or regulatory requirements to which the Party in question is subject (together, the "Relevant Requirements");
26.2.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
26.2.3 have and shall maintain in place throughout the Term its own policies and procedures including, but not limited to, adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements; and
26.2.4 promptly report to the other Party any request or demand for any undue financial or other advantage of any kind received by the Party in connection with the performance of this Agreement.
26.3 OGI acknowledges and agrees that the exercise of the rights granted to it under the Licences is subject to all Applicable Laws in the Territory, codes of practice, Good Industry Practice and the Approvals, and OGI understands and agrees that it shall at all times be solely liable and responsible for such due observance and performance of all (or the highest) of these.
26.4 For the avoidance of doubt, either Party's acceptance or approval of any action taken by or on behalf of the other Party under this Agreement shall not be construed to mean that the Party has considered the application of, or compliance with, any Applicable Law, Approval or other requirement.
27. INADEQUACY OF DAMAGES
Without prejudice to any other rights or remedies that the other Party may have, each Party acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this Agreement by the other Party. Accordingly, each Party shall be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement.
28. DISPUTE RESOLUTION PROCEDURE
28.1 If a Dispute arises then, except as expressly provided in this Agreement, the Parties shall follow the dispute resolution procedure set out in this Clause 28.1 (save in the circumstances of Clause 11.5, which expressly provides for the use of an independent accountant):
28.1.1 either Party shall give to the other Party written notice of the Dispute, setting out its nature and full particulars ("Dispute Notice"), together with relevant supporting documents. On service of the Dispute Notice, the PDC Steering Group shall attempt in good faith to resolve the Dispute; and
28.1.2 if the PDC Steering Group is for any reason unable to resolve the Dispute, or fails to meet, within thirty (30) days of service of the Dispute Notice, the Dispute shall be referred to the Head of M&A for BAT and Chief Executive Officer of OGI, who shall attempt in good faith to resolve it.
28.2 Subject to Clause 28.3 and without prejudice to the right to terminate this Agreement pursuant to Clause 13 (Duration, Termination and Effect of Termination), if the Head of M&A for BAT and Chief Executive Officer of OGI are for any reason unable to resolve the Dispute, or fail to meet, within thirty (30) days of it being referred to them, any Dispute shall be referred to and finally resolved by confidential, binding arbitration under the Rules of Arbitration of the International Chamber of Commerce (the "ICC Rules"), which ICC Rules are deemed incorporated into this Agreement, in accordance with the following sub-clauses:
28.2.1 the number of arbitrators shall be three (3);
28.2.2 the language of the arbitration shall be English;
28.2.3 the arbitration agreement shall be governed by the laws of England and Wales;
28.2.4 each Party shall nominate one (1) arbitrator, and the two (2) arbitrators nominated by the Parties shall within thirty (30) calendar days of the nomination of the second arbitrator agree upon a third arbitrator who shall act as Chairman of the Tribunal;
28.2.5 the place of the arbitration shall be New York, United States;
28.2.6 judgment upon any award rendered by the arbitrators may be entered in any court of competent jurisdiction.
28.3 Disputes arising under or in connection with one or more of the Project Agreements at the same time shall be consolidated into a single arbitration, in accordance with the terms of Clause 28.2.
28.4 Nothing contained in this Agreement shall deny either Party the right to seek injunctive, equitable or other interim relief from a court of competent jurisdiction in the context of an emergency or prospective irreparable harm, and such an action may be filed and maintained notwithstanding any ongoing dispute resolution discussions or arbitration proceedings under Clauses 28.1 or 28.2. In addition:
28.4.1 either Party may bring an action in any court of competent jurisdiction to resolve any Dispute pertaining to the ownership, validity, construction, scope, enforceability, infringement or other violations of the PDC Developed Foreground IP; and
28.4.2 either Party may bring an action in the courts of England and Wales to resolve any Dispute arising under, out of or relating to the Agreement's formation, validity, binding effect or interpretation,
and no such matter shall be subject to arbitration pursuant to this Clause 28.
29. GOVERNING LAW
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
This Agreement has been entered into on the Effective Date.
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SIGNED by |
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John R. Whitener |
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for and on behalf of |
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BT DE INVESTMENTS INC. |
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/s/ "John R. Whitener" "……………………………..…………………… |
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Treasurer |
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SIGNED by |
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Greg Engel |
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for and on behalf of |
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ORGANIGRAM INC. |
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/s/ "Greg Engel" |
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Director |