TerrAscend Corp PRE 14A, filed Apr 21, 2023
TerrAscend Corp. (TSNDF)
Preliminary Proxy
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
(Amendment No. )
Filed by the Registrant Filed by a Party other than the Registrant
Check the appropriate box:
Preliminary Proxy Statement
Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
Definitive Proxy Statement
Definitive Additional Materials
Soliciting Material Pursuant to §240.14a-12
TERRASCEND CORP.
(Name of Registrant as Specified In Its Charter)
Not Applicable
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check all boxes that apply):
No fee required.
Fee paid previously with preliminary materials.
Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11
PRELIMINARY COPY – SUBJECT TO COMPLETION
NOTICE OF MEETING,
MANAGEMENT INFORMATION CIRCULAR
AND PROXY STATEMENT
FOR THE ANNUAL GENERAL AND SPECIAL MEETING OF SHAREHOLDERS OF
TERRASCEND CORP.
TO BE HELD ON
June 22, 2023
These materials are important and require your immediate attention. If you have questions as to how to deal with these documents or the matters to which they refer, please contact your financial, legal or other professional advisor.
If you have any questions or require further information with regard to voting your shares or completing your documentation, please contact Odyssey Trust Company, our transfer agent, toll free within North America at 1-888-290-1175 or 1-587-885-0960, or via www.odysseycontact.com.
, 2023
NOTICE OF ANNUAL GENERAL AND SPECIAL MEETING OF SHAREHOLDERS OF TERRASCEND CORP.
TO BE HELD ON June 22, 2023
TO: The holders of common shares of TerrAscend Corp.
NOTICE IS HEREBY GIVEN that the annual and special meeting of the holders (the “Shareholders”) of common shares (the “Common Shares”) of TerrAscend Corp. (the “Corporation”) will be held virtually at https://web.lumiagm.com/239473997 (password: “terrascend2023” (case-sensitive)) on June 22, 2023, at 1:00 p.m. (Eastern Time) (the “Meeting”), for the following purposes:
The specific details of the foregoing matters to be put before the Meeting are set forth in the Circular accompanying this Notice of Meeting.
The record date for determining the Shareholders entitled to receive notice of and vote at the Meeting is the close of business on April 27, 2023 (the “Record Date”). Only Shareholders whose names have been entered in the applicable register of Shareholders as of 5:00 p.m. (Eastern Time) on the Record Date are entitled to receive notice of and vote at the Meeting. Those Shareholders of record will be included in the list of Shareholders prepared as of the Record Date and will be entitled to vote the Common Shares recorded therein at the Meeting.
Each Common Share entitled to be voted at the Meeting will entitle the holder thereof to one vote at the Meeting.
A Shareholder may attend the Meeting or may be represented by proxy through the Lumi platform. Registered Shareholders who are unable to attend the Meeting are requested to complete, sign and date the enclosed form of proxy and send it to Odyssey Trust Company (“Odyssey”), the Corporation’s transfer agent, at its offices located at Trader’s Bank Building, 702, 67 Yonge Street, Toronto, Ontario, M5E 1J8, or to vote over the Internet as specified in the form of proxy. To be effective, such proxy must be received by Odyssey by 1:00 p.m. (Eastern Time) on June 20, 2023, or not less than 48 hours (excluding Saturdays, Sundays and holidays) before the time fixed for the Meeting or any adjournment(s) or postponement(s) thereof.
Non-registered Shareholders who receive these materials through their broker or other intermediary should complete
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and return the voting instruction form provided by their broker or other intermediary in accordance with the instructions provided.
Virtual Meeting Logistics
As noted above, the Corporation is holding the Meeting as a completely virtual meeting, which will be conducted via live webcast. Shareholders will not be able to attend the Meeting in person. In order to attend, participate or vote at the Meeting, Shareholders must have a valid username.
Registered Shareholders and duly appointed proxyholders will be able to attend, participate and vote at the Meeting online at https://web.lumiagm.com/239473997. Such persons may then enter the Meeting by clicking “I have a login” and entering a username and password before the start of the Meeting.
• Registered Shareholders: The control number located on the form of proxy (or in the email notification you received if you have previously consented to receiving Shareholder materials via email) is the username. The password to the Meeting is “terrascend2023” (case sensitive). If as a registered Shareholder you are using your control number to login to the Meeting and you have previously voted, you do not need to vote again when the polls open during the Meeting. By voting at the Meeting, you will revoke your previous voting instructions received prior to the proxy voting cut-off.
• Duly appointed proxyholders: A Shareholder who wishes to appoint a person other than the management nominee(s) identified in the form of proxy to attend, participate or vote at the Meeting (including a non-registered Shareholder who wishes to appoint themselves) must register the appointed proxyholder by sending an email to appointee@odysseytrust.com by 1:00 p.m. (Eastern Time) on June 20, 2023, providing Odyssey with the required proxyholder contact as set out in the enclosed instructions, so that Odyssey may provide the proxyholder with a username via email. Without a username, proxyholders will not be able to attend, participate in or vote at the Meeting. Odyssey will provide the proxyholder with a username by e-mail after the voting deadline has passed. The password to the Meeting is “terrascend2023” (case sensitive).
Only registered Shareholders and duly appointed proxyholders will be entitled to attend, participate and vote at the Meeting.
DATED at Toronto, Ontario, this , 2023.
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Important Notice Regarding the Availability of Proxy Materials for the Shareholders’ Meeting to Be Held on June 22, 2023 at 1:00p.m. Eastern Time.
The proxy statement and annual report to shareholders are available at https://ir.terrascend.com. As permitted by the rules of the US Securities and Exchange Commission (“SEC”) and the Canadian securities regulators, the Corporation is providing meeting-related materials to Shareholders over the internet (rather than in paper form) in accordance with the rules of the SEC and the “notice-and-access” provisions provided for under National Instrument 54-101 – Communication with Beneficial Owners of Securities of a Reporting Issuer. This means that, rather than receiving paper copies of the proxy materials in connection with the Meeting in the mail, Shareholders will have access to them online.
Shareholders may request to receive paper copies of the proxy materials related to the above referenced meeting by mail at no cost. Shareholders may request to receive a paper copy of the Materials for up to one year from the date the Materials were filed on www.sedar.com.
For more information regarding notice-and-access or to obtain a paper copy of the Materials you may contact our transfer agent, Odyssey Trust Company, via www.odysseycontact.com or by phone at 1-888-290-1175 (toll-free within North America) or 1-587-885-0960 (direct from outside North America).
BY ORDER OF THE BOARD OF DIRECTORS
We have filed our Management Discussion & Analysis and Annual Report on Form 10-K for the fiscal year ended December 31, 2022 under the Corporation’s profile on the System for Electronic Document Analysis and Retrieval (“SEDAR”) at www.sedar.com and with the United States Securities and Exchange Commission (the “SEC”) through EDGAR at www.sec.gov/edgar, respectively. Such documents can be accessed free of charge. Shareholders can also access this proxy statement and our Annual Report on Form 10-K at https://ir.terrascend.com. A copy of our Annual Report on Form 10-K for the fiscal year ended December 31, 2022 is also available without charge upon written request to us via email at IR@terrascend.com.
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MANAGEMENT INFORMATION CIRCULAR and proxy statement
FOR 2023 ANNUAL GENERAL AND SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON June 22, 2023
at 1:00 P.M. (EASTERN TIME)
This management information circular and proxy statement (the “Circular”) is being furnished to holders (“Shareholders”) of common shares (the “Common Shares”) in the capital of TerrAscend Corp. (“TerrAscend” or the “Corporation”) in connection with the solicitation of proxies by management of the Corporation for use at the annual general and special meeting of Shareholders to be held virtually at https://web.lumiagm.com/239473997 (password: “terrascend2023” (case-sensitive)) on June 22, 2023, at 1:00 p.m. (Eastern Time) (the “Meeting”), or any adjournment(s) or postponement(s) thereof, for the purposes set forth in the accompanying notice of meeting (the “Notice of Meeting”).
INFORMATION CONTAINED IN THIS CIRCULAR
Information contained in this Circular is given as at , 2023, unless otherwise specifically stated. Unless otherwise indicated herein as Canadian dollars (C), all dollar amounts are in United States (US) dollars.
The Corporation is a reporting issuer or equivalent in the provinces of British Columbia, Alberta and Ontario and files its continuous disclosure documents with the provincial securities regulatory authorities of those provinces. The continuous disclosure documents of the Corporation are filed under the Corporation’s profile on the System for Electronic Document Analysis and Retrieval (“SEDAR”) at www.sedar.com and with the United States Securities and Exchange Commission (the “SEC”) through EDGAR at www.sec.gov/edgar.
CAUTION REGARDING CANNABIS OPERATIONS IN THE UNITED STATES
Investors should note that there are significant legal restrictions and regulations that govern the cannabis industry in the US. Cannabis remains a Schedule I drug under the US Controlled Substances Act, making it illegal under federal law in the US to, among other things, cultivate, distribute or possess cannabis in the US. Financial transactions involving proceeds generated by, or intended to promote, cannabis-related business activities in the US may form the basis for prosecution under applicable US federal money laundering legislation.
While the approach to enforcement of such laws by the federal government in the US has trended toward non-enforcement against individuals and businesses that comply with medical- or adult-use cannabis programs in states where such programs are legal, strict compliance with state laws with respect to cannabis will neither absolve the Corporation of liability under US federal law, nor will it provide a defense to any federal proceeding which may be brought against the Corporation. The enforcement of federal laws in the US is a significant risk to the business of the Corporation and any proceedings brought against the Corporation thereunder may adversely affect the Corporation’s operations and financial performance.
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INFORMATION CONCERNING THE CORPORATION
General Information
The Corporation was incorporated under the Business Corporations Act (Ontario) (“OBCA”) as “TerrAscend Corp.” on March 7, 2017. The Corporation’s registered and head office is located at 3610 Mavis Road, Mississauga, Ontario L5C 1W2. The Board has determined to move the Corporation's registered office to 77 City Centre Drive, East Tower - Suite 501, Mississauga, ON L5B 1M5. In accordance with the OBCA, on April , 2023, the Board resolved to change the registered office to 77 City Centre Drive, East Tower - Suite 501, Mississauga, ON L5B 1M5 to be effective May , 2023.The Common Shares are listed and posted for trading on the Canadian Securities Exchange (the “CSE”) under the symbol “TER” and on the OTCQX® Best Market under the symbol “TRSSF”.
Voting Securities and Principal Holders of Voting Securities
The Corporation is authorized to issue an unlimited number of Common Shares, an unlimited number of proportionate voting shares (“Proportionate Voting Shares”), an unlimited number of non-participating, non-voting, unlisted exchangeable shares (“Exchangeable Shares”), and an unlimited number of preferred shares, issuable in series (“Preferred Shares”). As of the close of business on April 27, 2023 (the “Record Date”), there were a total of Common Shares, no Proportionate Voting Shares, Exchangeable Shares and Preferred Shares issued and outstanding. Each Common Share entitles the holder thereof to one vote on all matters to be acted upon at the Meeting, and each Proportionate Voting Share would entitle the holder thereof to 1,000 votes on all matters to be acted upon at the Meeting. The Exchangeable Shares and the Preferred Shares are not entitled to vote at the Meeting. Therefore, there are a total of votes eligible to be cast at the Meeting.
To the knowledge of the directors and executive officers of the Corporation, as of the Record Date, no person or company beneficially owns, or controls or directs, directly or indirectly, Common Shares carrying 10% or more of the voting rights attached to the Common Shares except for the following:
Name of Shareholder |
Number of Votes Held |
Percentage of Total Eligible Votes (1) |
Jason Wild |
88,621,984 (2) |
|
_______________
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GENERAL PROXY MATTERS
Solicitation of Proxies
Management of the Corporation is using this Circular to solicit proxies from Shareholders for use at the Meeting. TerrAscend will bear all costs associated with the preparation and mailing of this Circular, the Notice of Meeting and the accompanying form of proxy, as well as the cost of the solicitation of proxies. Solicitations of proxies will be primarily made by mail, but may also be made by telephone, by email, by other means of electronic transmission or in person by directors, officers and employees of TerrAscend. TerrAscend will pay for the delivery of its proxy-related materials indirectly to all Non-Registered Shareholders (as defined below). Banks, brokerage houses and other custodians and nominees or fiduciaries will be requested to forward proxy solicitation material to their principals and to obtain authorizations for the execution of proxies.
As permitted by the rules of the SEC and the Canadian securities regulators, the Corporation is providing meeting related materials to Shareholders over the internet (rather than in paper form) in accordance with the rules of the SEC and the “notice-and-access” provisions provided for under National Instrument 54-101 – Communication with Beneficial Owners of Securities of a Reporting Issuer. This means that, rather than receiving paper copies of the proxy materials in connection with the Meeting in the mail, Shareholders will have access to them online.
Record Date
The Board fixed the close of business on April 27, 2023 as the Record Date for determining which Shareholders shall be entitled to receive notice of, and to vote at, the Meeting. Only Shareholders of record as of the Record Date are entitled to receive notice of, and to vote at, the Meeting or any adjournment(s) or postponement(s) thereof. Persons who acquire Common Shares after the Record Date will not be entitled to vote such shares at the Meeting.
Appointment and Revocation of Proxies
The persons named in the enclosed form of proxy are directors and/or officers of the Corporation. A Shareholder has the right to appoint a person, persons or entity (who need not be a Shareholder) other than the persons designated in the form of proxy provided by the Corporation to attend and act on behalf of the Shareholder at the Meeting. A Shareholder wishing to exercise this right may do so by inserting the name(s) of the desired person, persons or entity in the blank space provided in the form of proxy or by completing another proper form of proxy. This is an additional step to be completed once you have submitted your form of proxy or voting instruction form (see section below entitled “Virtual Meeting Protocols: Registering a Proxyholder to Attend the Meeting”). In order to be effective, a proxy must be received by the Corporation’s transfer agent, Odyssey Trust Company (“Odyssey”), at Trader’s Bank Building, 702, 67 Yonge Street, Toronto, Ontario, M5E 1J8, or over the Internet as specified in the form of proxy, by 1:00 p.m. (Eastern Time) on June 20, 2023, or not less than 48 hours (excluding Saturdays, Sundays and holidays) before the time fixed for the Meeting or any adjournment(s) or postponement(s) thereof. The Chair of the Meeting may waive or extend the proxy cut-off without notice and in his sole discretion. The proxy must be in writing and executed by the Shareholder, or such Shareholder’s attorney authorized in writing, or if such Shareholder is a corporation, under its corporate seal or by a duly authorized officer or attorney thereof.
A registered Shareholder who has given a proxy may revoke it by an instrument in writing executed by such registered Shareholder, by such registered Shareholder’s attorney authorized in writing or, if the registered Shareholder is a corporation, under its corporate seal or by a duly authorized officer or attorney thereof, and delivered either to the Corporation or to Odyssey at the address specified above at any time up to and including the last business day preceding the day of the Meeting, or any adjournment(s) or postponement(s) thereof, or with the Chair of the Meeting on the day of the Meeting before the commencement of the Meeting or the reconvening of any adjournment or postponement of the Meeting. A revocation of a proxy will not affect a matter on which a vote is taken before the revocation.
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If you are a Non-Registered Shareholder who has voted by proxy through your Intermediary (as defined below) and would like to change or revoke your vote, contact your Intermediary to discuss whether this is possible and what procedures you need to follow. The change or revocation of voting instructions by a Non-Registered Shareholder can take several days or longer to complete and, accordingly, any such action should be completed well in advance of the deadline given in the proxy or Voting Instruction Form (as defined below) by the Intermediary or its service company to ensure it is effective.
Proxy Voting
The persons named in the form of proxy will vote (or withhold from voting) the Common Shares in respect of which they are appointed in accordance with the instructions of the Shareholder appointing them, and if the Shareholder specifies a choice with respect to any matter to be acted upon at the Meeting, the persons appointed as proxyholders shall vote accordingly. In the absence of such direction, such Common Shares will be voted FOR the passing of all matters and resolutions described herein. The form of proxy confers discretionary authority upon the persons named therein with respect to amendments or variations to the matters identified in the Notice of Meeting and with respect to other matters which may properly come before the Meeting or any adjournment(s) or postponement(s) thereof. The persons named in the enclosed proxy will have discretionary authority with respect to any amendments or variations of the matters of business to be acted on at the Meeting or any other matters properly brought before the Meeting or any adjournment(s) or postponement(s) thereof, in each instance, to the extent permitted by law, whether or not the amendment, variation or other matter that comes before the Meeting is routine and whether or not the amendment, variation or other matter that comes before the Meeting is contested. As of the date of this Circular, management of the Corporation knows of no such amendments, variations or other matters to come before the Meeting. However, if any other matters should properly come before the Meeting, or any adjournment(s) or postponements(s) thereof, the form of proxy will be voted on such matters in accordance with the best judgment of the persons named in the form of proxy.
Non-Registered Shareholders
Only registered Shareholders or the person(s) they appoint as their proxies are permitted to vote at the Meeting. However, in many cases, Common Shares beneficially owned by a holder whose Common Shares are held by an Intermediary (“Non-Registered Shareholder”) are registered either: (i) in the name of a broker or other intermediary (“Intermediary”) with whom the Non-Registered Shareholder deals in respect of the Common Shares; or (ii) in the name of a clearing agency (such as CDS & Co.) of which the Intermediary is a participant.
In accordance with the requirements of National Instrument 54-101 – Communication with Beneficial Owners of Securities of a Reporting Issuer, the Corporation has elected to send the Notice of Meeting, this Circular and the voting instruction form (“Voting Instruction Form”, and together with the Notice of Meeting and this Circular, “Meeting Materials”) directly to Non-Registered Shareholders through the services of their Intermediary. Typically, Intermediaries will use a service company (such as Broadridge Investor Communications Corporation (“Broadridge”)) to forward Meeting Materials to Non-Registered Shareholders. The Corporation will pay for Intermediaries to deliver the Meeting Materials to Non-Registered Shareholders who have objected to their Intermediary disclosing ownership information about themselves to the Corporation.
These Meeting Materials are being sent to both registered Shareholders and Non-Registered Shareholders. If you are a Non-Registered Shareholder, and the Corporation or its agent has sent the Meeting Materials directly to you, your name, address and information about your holdings of Common Shares have been obtained in accordance with applicable securities regulatory requirements from the Intermediary holding the Common Shares on your behalf. By choosing to send the Meeting Materials to you directly, the Corporation (and not the Intermediary holding the Common Shares on your behalf) has assumed responsibility for (i) delivering the Meeting Materials to you, and (ii) executing your proper voting instructions. Please return your voting instructions as specified in the Voting Instruction Form.
Non-Registered Shareholders will be given, in substitution for the form of proxy otherwise contained in the proxy-related materials, a Voting Instruction Form which, when properly completed and, if applicable, signed by the Non-Registered Shareholder and returned to the Intermediary, as applicable, will constitute voting instructions which the Intermediary, as applicable, must follow. The purpose of this procedure is to permit Non-Registered Shareholders to
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direct the voting of the Common Shares they beneficially own. Should a Non-Registered Shareholder who receives the Voting Instruction Form wish to vote at the Meeting in person (or have another person attend the vote on behalf of the Non-Registered Shareholder), the Non-Registered Shareholder should so indicate in the place provided for that purpose in the Voting Instruction Form and a form of legal proxy will be sent to the Non-Registered Shareholder. Every Intermediary has its own mailing procedures and provides its own return instructions, which should be carefully followed by Non-Registered Shareholders in order to ensure that their Common Shares are voted at the Meeting. If you have any questions with respect to the voting of Common Shares held through a broker or other Intermediary, please contact the broker or other Intermediary for assistance.
The Corporation may utilize Broadridge’s QuickVoteTM system to assist Shareholders with voting their Common Shares. Certain Non-Registered Shareholders who have not objected to the Corporation knowing who they are (non-objecting beneficial owners) may be contacted by the Corporation, to conveniently obtain a vote directly over the phone.
Voting Thresholds Required for Approval
In order to approve a motion proposed at the Meeting, the affirmative vote of a simple majority of the votes cast by TerrAscend shareholders present virtually or represented by proxy and entitled to vote at the Meeting will be required (an “Ordinary Resolution”) unless the motion requires a special resolution (a “Special Resolution”), in which case the affirmative vote of not less than two-thirds (66⅔%) of the votes cast by TerrAscend shareholders present virtually or represented by proxy and entitled to vote at the Meeting will be required. The following table summarizes the type of resolution needed to approve each proposal outlined below:
Proposal |
Type of Resolution |
Proposal No. 1: Re-election of the Corporation’s Board until the close of the next annual meeting of Shareholders. |
Ordinary Resolution |
Proposal No. 2: Ratification of the appointment of MNP LLP, Chartered Professional Accountants, as auditor of the Corporation at remuneration to be fixed by the Board. |
Ordinary Resolution |
Proposal No. 3: Approval of the amendments to the Corporation’s Stock Option Plan (including all unallocated stock options issuable thereunder). |
Ordinary Resolution |
Proposal No. 4: Approval of the amendments to the Corporation’s Restricted Share Unit Plan (including all unallocated awards issuable thereunder). |
Ordinary Resolution |
Proposal No. 5: Approval of the issuance and sale on a private placement basis of TerrAscend Growth Common Shares for aggregate gross proceeds of US$1,000,000, which shall be deemed, for the purposes of section 184(3) of the Business Corporations Act (Ontario), to be a sale of all or substantially all of the assets of the Corporation. |
Special Resolution |
Virtual Meeting Protocols: Attending and Participating in the Meeting
The Corporation is holding the Meeting as a completely virtual meeting, which will be conducted via live webcast.
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Shareholders will not be able to attend the Meeting in person. In order to attend, participate in or vote at the Meeting, Shareholders must have a valid username.
Registered Shareholders and duly appointed proxyholders will be able to attend, participate in and vote at the Meeting online at https://web.lumiagm.com/239473997 (password: “terrascend2023” (case-sensitive)). Such persons may then enter the Meeting by clicking “I have a login” and entering a username and password before the start of the Meeting:
• Registered Shareholders: The control number located on the form of proxy (or in the email notification you received if you have previously consented to receiving shareholder materials via email) is the username. The password to the Meeting is “terrascend2023” (case sensitive). If, as a registered Shareholder you are using your control number to login to the Meeting and you have previously voted, you do not need to vote again when the polls open during the Meeting. By voting at the Meeting, you will revoke your previous voting instructions received prior to voting cut-off.
• Duly appointed proxyholders: Odyssey will provide the proxyholder with a username by e-mail after the voting deadline has passed (see section below entitled “Virtual Meeting Protocols: Registering a Proxyholder to Attend the Meeting”). The password to the Meeting is “terrascend2023” (case sensitive). Only registered Shareholders and duly appointed proxyholders will be entitled to attend, participate in and vote at the Meeting. Non-Registered Shareholders who have not duly appointed themselves as proxyholder will be able to attend the Meeting as a guest but will not be able to participate in or vote at the Meeting. Shareholders who wish to appoint a third party proxyholder to represent them at the Meeting (including Non-Registered Shareholders who wish to appoint themselves as proxyholder to attend, participate in or vote at the Meeting) MUST submit their duly completed proxy or Voting Instruction Form AND register the proxyholder.
Virtual Meeting Protocols: Registering a Proxyholder to Attend the Meeting
The following applies to Shareholders who wish to appoint a person (a “Third Party Proxyholder”) other than the management nominees set forth in the form of proxy or Voting Instruction Form as proxyholder, including Non-Registered Shareholders who wish to appoint themselves as proxyholder to attend, participate in or vote at the Meeting.
Shareholders who wish to appoint a Third Party Proxyholder to attend, participate in or vote at the Meeting as their proxy and vote their Common Shares MUST submit their proxy or Voting Instruction Form (as applicable) appointing such Third Party Proxyholder AND register the Third Party Proxyholder, as described below. Registering your proxyholder is an additional step to be completed AFTER you have submitted your proxy or Voting Instruction Form. Failure to register the proxyholder will result in the proxyholder not receiving a username to attend, participate in or vote at the Meeting.
• Step 1: Submit your proxy or Voting Instruction Form: To appoint a Third Party Proxyholder, insert such person’s name in the blank space provided in the form of proxy or Voting Instruction Form (if permitted) and follow the instructions for submitting such form of proxy or Voting Instruction Form. This must be completed prior to registering such proxyholder, which is an additional step to be completed once you have submitted your form of proxy or Voting Instruction Form. If you are a Non-Registered Shareholder located in the US, you must also provide Odyssey with a duly completed legal proxy if you wish to attend, participate in or vote at the Meeting or, if permitted, appoint a third party as your proxyholder.
• Step 2: Register your proxyholder: To register a proxyholder, Shareholders must send an email to appointee@odysseytrust.com by 1:00 p.m. (Eastern Time) on June 20, 2023 and provide Odyssey with their proxyholder’s contact information, amount of Common Shares appointed, name in which the Common Shares are registered if they are a registered Shareholder, or name of broker where the Common Shares are held if a Non-Registered Shareholder, so that Odyssey may provide the proxyholder with a username via email. Without a username, proxyholders will not be able to attend, participate in or vote at the Meeting.
If you are a Non-Registered Shareholder and wish to attend, participate in or vote at the Meeting, you have to insert your own name in the space provided on the Voting Instruction Form sent to you by your Intermediary, follow all of the applicable instructions provided by your Intermediary AND register yourself as your proxyholder, as described
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above. By doing so, you are instructing your Intermediary to appoint you as proxyholder. It is important that you comply with the signature and return instructions provided by your Intermediary.
Virtual Meeting Protocols: Legal Proxy – US Non-Registered Shareholders
If you are a Non-Registered Shareholder located in the United States and wish to attend, participate in or vote at the Meeting or, if permitted, appoint a Third Party Proxyholder, in addition to the steps described above, you must obtain a valid legal proxy from your Intermediary. Follow the instructions from your Intermediary included with the legal proxy form and the Voting Information Form sent to you, or contact your Intermediary to request a legal proxy form or a legal proxy if you have not received one. After obtaining a valid legal proxy from your Intermediary, you must then submit such legal proxy to Odyssey. Requests for registration from Non-Registered Shareholders located in the United States that wish to attend, participate in or vote at the Meeting or, if permitted, appoint a third party as their proxyholder must be sent by email to appointee@odysseytrust.com and received by 1:00 p.m. (Eastern time) on June 20, 2023.
Virtual Meeting Protocols: Voting at the Meeting
Any Shareholder who has already submitted a duly completed form of proxy or Voting Instruction Form does not need to vote again when the polls open during the Meeting. By voting at the Meeting, you will revoke your previous voting instructions received prior to voting cut-off.
Registered Shareholders and proxyholders who have registered prior to the Meeting by following the steps above may vote at the Meeting by completing the poll online during the Meeting.
Questions at the Meeting
The Corporation believes that the ability to participate in the Meeting in a meaningful way, including asking questions, remains important despite the decision to hold this year’s Meeting virtually. It is anticipated that registered Shareholders and proxyholders (including Non-Registered Shareholders who have appointed themselves as proxyholder) will have substantially the same opportunity to ask questions related to the matters of business to be considered at the Meeting as in past years when the annual meeting of Shareholders was held in person. Only registered Shareholders and duly appointed proxyholders will be able to submit questions. Guests will not be able to submit questions. To ask a question, please follow the steps outlined on the virtual meeting platform.
Questions related to the matters to be considered at the Meeting will be addressed at the relevant time during the Meeting. As at an in-person meeting, to ensure fairness for all attendees, the Chair of the Meeting will decide on the amount of time allocated to each question and will have the right to limit or consolidate questions and to reject questions that do not relate to the business of the Meeting or which are determined to be inappropriate, do not directly relate to the matters to be considered at the Meeting, or are otherwise out of order.
Difficulties Accessing the Meeting
If you are accessing the Meeting you must remain connected to the Internet at all times during the Meeting in order to vote when balloting commences. It is your responsibility to ensure Internet connectivity for the duration of the Meeting. Note that if you lose connectivity once the Meeting has commenced, there may be insufficient time to resolve your issue before ballot voting is completed. Therefore, even if you currently plan to access the Meeting and vote during the live webcast, you should consider voting your shares in advance or by proxy so that your vote will be counted in the event you experience any technical difficulties or are otherwise unable to access the Meeting.
Quorum
A quorum of Shareholders is required to transact business at the Meeting. Pursuant to the by-laws of the Corporation, the quorum requirement for the Meeting will be satisfied, and the Meeting will be properly constituted, where the holders of shares representing, in the aggregate, 5% of the shares entitled to vote at a Meeting, whether present or by proxy.
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Shareholder Proposals and Director Nominations
Shareholder Proposals for 2023
The final date and time by which the Corporation must receive a proposal for any matter that a Shareholder proposes to raise at the annual meeting of Shareholders to be held on June 22, 2023 must be received by April 23, 2023.
Shareholder Proposals for 2024
To be considered for inclusion in next year’s proxy materials, a shareholder proposal must be submitted in writing on or before (i) December 30, 2023 for proposals submitted pursuant to Rule 14a-8 promulgated under the Exchange Act or (ii) April 23, 2024 for proposals submitted pursuant to the OBCA, and provided such shareholder proposal satisfies all other requirements for shareholder proposals under Rule 14a-8 or the OBCA, as applicable. Any such proposals should be submitted to: TerrAscend Corp. ATT: Corporate Secretary, 77 City Centre Drive, East Tower - Suite 501, Mississauga, ON L5B 1M5. If you wish to bring a matter before the shareholders at next year’s annual meeting by a shareholder proposal and you do not submit a valid shareholder proposal to the Corporation before April 23, 2024, then (i) the Corporation will not be required to include such proposal in the proxy materials for the 2024 Annual Meeting and (ii) for all proxies we receive, the proxyholders will have discretionary authority to vote on the matter, including discretionary authority to vote in opposition to the matter.
Advance Notice Provision
The Corporation’s by-laws include an advance notice provision (the “Advance Notice Provision”). The Advance Notice Provision requires advance notice to the Corporation if nominations of persons for election to the Board are to be made by Shareholders of the Corporation other than pursuant to (i) a requisition of a meeting made pursuant to the provisions of the Corporation’s enacting statute or (ii) a Shareholder proposal made pursuant to the provisions of the Corporation’s enacting statute.
The purpose of the Advance Notice Provision is to ensure that all Shareholders – including those participating in a given meeting by proxy rather than in person – receive adequate notice of the nominations to be considered at the given meeting and can thereby exercise their voting rights in an informed manner. Among other things, the Advance Notice Provision fixes a deadline by which holders of Common Shares must submit director nominations to the Corporation prior to any annual or special meeting of Shareholders and sets forth the minimum information that a Shareholder must include in the notice to the Corporation for the notice to be in proper written form.
To be timely, a Shareholder’s notice must be received by the Corporation:
i. in the case of an annual (or annual and special) meeting to be held on a date that is 50 days or more after the date on which the first public announcement of the date of that meeting is made, not later than 5:00 p.m. (EST time) on the date that is 30 days before the date of that meeting;
ii. in the case of an annual (or annual and special meeting) to be held on a date that is less than 50 days after the date on which the first public announcement of the date of that meeting is made, not later than 5:00 p.m. (EST time) on the 10th day following the date on which the first public announcement of the date of that meeting is made;
iii. in the case of a special meeting (which is not also an annual meeting) called for the purpose of electing directors (whether or not called for other purposes), not later than 5:00 p.m. (EST time) on the 15th day following the date on which the first public announcement of the date of that meeting is made.
The foregoing is merely a summary of the Advance Notice Provision, is not comprehensive and is qualified by the full text of such provision contained in the Corporation’s by-laws which are available under the Corporation’s profile on SEDAR at www.sedar.com and with the SEC through EDGAR at www.sec.gov/edgar.
The Corporation has not received notice of any nominations in respect of the Meeting in compliance with the Advance Notice Provision at the date of this Circular.
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In addition, to comply with the universal proxy rules, shareholders who intend to solicit proxies in support of director nominees other than the Corporation’s nominees must provide notice that sets forth the information required by Rule 14a-19 under the Exchange Act no later than April 23, 2024.
Dissenters’ Rights
Under the OBCA, dissenters rights are not available to our Shareholders with respect to matters to be voted on at the Meeting, other than with respect to the Transaction Proposal. A description of a registered shareholder’s Dissent Rights is included under the heading “Dissent Rights”.
[Remainder of this page intentionally left blank]
13
GLOSSARY OF TERMS
14
The following terms used in this Circular have the following meanings:
15
“Advance Notice Provision” |
has the meaning ascribed thereto under the heading “General Proxy Matters – Advance Notice Provision”. |
“Advanced Put Notice” |
has the meaning ascribed thereto under the heading “Proposal No.5: Transaction Proposal – Background”. |
“Aggregate Repurchase Price” |
means the sum of: (a) the Repurchase/Put Price; plus (b) the amount equal to 40% of the Subscription Amount less the aggregate Dividend Amounts paid to the Investor as of the date of the Exercise Notice. |
“AIP” |
has the meaning ascribed thereunder under the heading “Compensation of Named Executive Officers”. |
“Arbor” |
means Arbor Pharmaceuticals. |
“Arrangement Agreement” |
has the meaning ascribed thereto under the heading “Transactions With Related Persons”. |
“Arthouse” |
means Arthouse Entertainment. |
“Audit Committee” |
means the Audit Committee of the Corporation. |
“Break Fee” |
means the amount determined by calculating the interest payable on the Subscription Amount from the date of the Subscription Agreement equal to 20% per annum calculated on the basis of a 365-day year whereby the rate used in such calculation is equivalent to the rate so used multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by 365. |
“Board” |
means the board of directors of the Corporation. |
“Broadridge” |
has the meaning ascribed thereto under the heading “General Proxy Matters – Non-Registered Shareholders”. |
“Canopy USA Entities” |
has the meaning ascribed thereto under the heading “Audit Committee – Audit Committee Report”. |
“Circular” |
has the meaning ascribed thereto under the heading “Management Information Circular And Proxy Statement For 2023 Annual General And Special Meeting Of Shareholders”. |
“Closing Document” |
means any document delivered at or subsequent to the Time of Closing as provided in or pursuant the Subscription Agreement. |
“Common Shares” |
means the common shares of the Corporation. |
“Cookies” |
means Cookies Retail Canada Corp. |
“Corporation” |
means TerrAscend Corp. |
“Court” |
means the Ontario Superior Court of Justice (Commercial List). |
“Credit Agreements” |
means, collectively, the Michigan Agreement, the TerrAscend NJ LLC Agreement and the WBD Holding PA Agreement. |
“CSA” |
means the Controlled Substances Act. |
16
“CSE” |
means the Canadian Securities Exchange. |
“Director Nominees” |
has the meaning ascribed thereto under the heading “Matters To Be Acted Upon At The Meeting – Proposal No. 1: Election of Directors”. |
“Dissent Notice” |
has the meaning ascribed thereto under the heading “Dissent Rights”. |
“Dissent Rights” |
means the right of a registered shareholder to dissent to the Transaction Resolution and to be paid the fair value of its shares in respect of which the holder dissents, all in accordance with Section 185 of the OBCA. |
“Dissenting Shareholders” |
means a registered shareholder who has duly and validly exercised the Dissent Rights and has not withdrawn or been deemed to have withdrawn such exercise of Dissent Rights, but only in respect of shares in respect of which Dissent Rights are validly exercised by such registered shareholder, and “Dissenting Shareholder” means any one of them. |
“Dividend Amount” |
has the meaning ascribed thereto under the heading “Proposal No. 5: Transaction Proposal – The Transaction Proposal”. |
“Eligible Persons” |
has the meaning ascribed thereto under the heading “Matters To Be Acted Upon At The Meeting – Proposal No. 3: Approval of the Stock Option Plan Resolution”. |
“Exchange Rate” |
has the meaning ascribed thereto under the heading “Matters To Be Acted Upon At The Meeting – Proposal No. 2: Ratification of Selection of MNP as Auditor”. |
“Exchangeable Shares” |
has the meaning ascribed thereto under the heading “Information Concerning The Corporation - Voting Securities and Principal Holders of Voting Securities”. |
“Exercise Notice” |
has the meaning ascribed thereto under the heading “Proposal No. 5: Transaction Proposal – Background”. |
“Gage” |
means Gage Growth Corp. |
“Grant Date” |
has the meaning ascribed thereto under the heading “Matters To Be Acted Upon At The Meeting –2023 Stock Option Plan Amendments”. |
“Intermediary” |
has the meaning ascribed thereto under the heading “General Proxy Matters – Non-Registered Shareholders”. |
17
“Investment” |
has the meaning ascribed thereto under the heading “Proposal No. 5: Transaction Proposal – Background”. |
“Investor” |
means TERINVEST LLC. |
“Investor Nominee” |
has the meaning ascribed thereto under the heading “Proposal No. 5: Transaction Proposal – Structure of TerrAscend Growth”. |
“ISOs” |
has the meaning ascribed thereto under the heading “Matters To Be Acted Upon At The Meeting –2021 Stock Option Plan Amendments”. |
“Lender Consents” |
means, collectively, the consent, waiver or other agreement of the Lenders, as applicable, pursuant to the Credit Agreements as is necessary to permit the Investment as determined by TerrAscend Growth, acting reasonably. |
“Lenders” |
means, collectively, the Michigan Lenders, the TerrAscend NJ Lenders and the WBD Lenders. |
“Meeting” |
has the meaning ascribed thereto under the heading “Notice Of Annual General And Special Meeting Of Shareholders Of Terrascend Corp. To Be Held On June 22, 2023”. |
“Meeting Materials” |
has the meaning ascribed thereto under the heading “General Proxy Matters – Non-Registered Shareholders”. |
“MI 61-101” |
has the meaning ascribed thereto under the heading “Transactions With Related Persons”. |
“Michigan Agreement” |
means the credit agreement made by and among, inter alios, TerrAscend Growth, as parent and co-borrower, the credit parties and lenders party thereto and Chicago Atlantic Admin, LLC dated as of November 22, 2021, as amended by that certain Joinder, First Amendment to Credit Agreement and Security Agreements and Consent dated as of August 10, 2022 and Joinder and Second Amendment to Credit Agreement and Security Agreements dated as of November 29, 2022. |
“Michigan Lenders” |
means the lenders party to the Michigan Agreement. |
“MNP” |
has the meaning ascribed thereto under the heading “Matters To Be Acted Upon At The Meeting – Proposal No. 2: Ratification of Selection of MNP as Auditor”. |
“Named Executive Officers” |
has the meaning ascribed thereto under the heading “Executive Compensation”. |
18
“NEOs” |
has the meaning ascribed thereto under the heading “Executive Compensation”. |
“NI 52-110” |
has the meaning ascribed thereto under the heading “Corporate Governance – Board of Directors”. |
“Non-Registered Shareholder” |
has the meaning ascribed thereto under the heading “General Proxy Matters – Non-Registered Shareholders”. |
“Non-Voting Shares” |
has the meaning ascribed thereto under the heading “Proposal No. 5: Transaction Proposal – Background”. |
“Notice of Meeting” |
means the 2023 Notice of Annual General and Special Meeting of Shareholders of the Corporation |
“NP 58-201” |
has the meaning ascribed thereto under the heading “Corporate Governance”. |
“NQSOs” |
has the meaning ascribed thereto under the heading “Matters To Be Acted Upon At The Meeting –2021 Stock Option Plan Amendments”. |
“OBCA” |
has the meaning ascribed thereto under the heading “Information Concerning the Corporation – General Information”. |
“Odyssey” |
has the meaning ascribed thereto under the heading “Notice Of Annual General And Special Meeting Of Shareholders Of Terrascend Corp. To Be Held On June 22, 2023”. |
“Offer to Pay” |
has the meaning ascribed thereto under the heading “Dissent Rights”. |
“Options” |
has the meaning ascribed thereto under the heading “Matters To Be Acted Upon At The Meeting – Proposal No. 3: Approval of the Stock Option Plan Resolution”. |
“Ordinary Resolution” |
has the meaning ascribed thereto under the heading “General Proxy Matters – Voting Thresholds Required for Approval”. |
“Outside Date” |
means August 31, 2023 or such later date as may be agreed to in writing by TerrAscend Growth and the Investor. |
“Payment Demand” |
has the meaning ascribed thereto under the heading “Dissent Rights”. |
“PCAOB” |
means Public Company Accounting Oversight Board. |
19
“Pinnacle” |
means KISA Enterprises MI Inc. |
“Preferred Shares” |
has the meaning ascribed thereto under the heading “Information Concerning The Corporation - Voting Securities and Principal Holders of Voting Securities”. |
“Proportionate Voting Shares” |
has the meaning ascribed thereto under the heading “Information Concerning The Corporation - Voting Securities and Principal Holders of Voting Securities”. |
“Protection Agreement” |
means the protection agreement between the Corporation and TerrAscend Growth dated April 18, 2023. |
“Put Option” |
has the meaning ascribed thereto under the heading “Proposal No. 5: Transaction Proposal – Background”. |
“Record Date” |
has the meaning ascribed thereto under the heading “Notice Of Annual General And Special Meeting Of Shareholders Of Terrascend Corp. To Be Held On June 22, 2023”. |
“Repurchase Option” |
has the meaning ascribed thereto under the heading “Proposal No. 5: Transaction Proposal – Background”. |
“Repurchase/Put Price” |
means, on a per TerrAscend Growth Common Share basis, the greater of: (i) the Subscription Price; and (ii) the fair market value of a TerrAscend Growth Common Share, which shall be equal to the product obtained by multiplying 322,580.65 by the volume-weighted average price of the Common Shares on the principal Canadian national or regional securities exchange on which the Common Shares are then listed, or, if the Common Shares are not then listed on a Canadian national or regional securities exchange, the principal other market on which the Common Shares are then traded during the 20 consecutive trading days ending on the day immediately preceding the Exercise Notice or Advanced Put Notice, as the case may be. |
“RSU Plan” |
means the RSU Plan of the Corporation. |
“RSU Plan Resolution” |
has the meaning ascribed thereto under the heading “Matters To Be Acted Upon At The Meeting - 2023 RSU Plan Amendments”. |
“SEC” |
means the United States Securities and Exchange Commission. |
20
“Securities Laws” |
means, as applicable, the securities laws, regulations, rules, rulings and orders in each of the provinces and territories of Canada and the United States, the applicable policy statements, notices, blanket rulings, orders and all other regulatory instruments of the securities regulators in each of the provinces/states and territories of Canada and the United States. |
“SEDAR” |
means System for Electronic Document Analysis and Retrieval. |
“Shareholders” |
has the meaning ascribed thereto under the heading “Notice Of Annual General And Special Meeting Of Shareholders Of Terrascend Corp. To Be Held On June 22, 2023”. |
“Side Letter” |
means the side letter agreement dated April 19, 2023 among TerrAscend, TerrAscend Growth and the Investor. |
“Special Resolution” |
has the meaning ascribed thereto under the heading “General Proxy Matters – Voting Thresholds Required for Approval”. |
“Stock Option Plan” |
means the Stock Option Plan of the Corporation. |
“Stock Option Plan Amendments” |
has the meaning ascribed thereto under the heading “Matters To Be Acted Upon At The Meeting –2023 Stock Option Plan Amendments”. |
“Stock Option Plan Resolution” |
has the meaning ascribed thereto under the heading “Matters To Be Acted Upon At The Meeting –2023 Stock Option Plan Amendments”. |
“Subscription Agreement” |
means the subscription agreement dated April 19, 2023 between TerrAscend Growth and the Investor. |
“Subscription Amount” |
has the meaning ascribed thereto under the heading “Proposal No.5: Transaction Proposal – Background”. |
“TerrAscend” |
means TerrAscend Corp. |
“TerrAscend Canada” |
means TerrAscend Canada Inc. |
“TerrAscend Canada Transfer” |
has the meaning ascribed thereto under the heading “Proposal No. 5: Transaction Proposal”. |
“TerrAscend Growth” |
means TerrAscend Growth Corp. (formerly Gage Growth Corp.). |
“TerrAscend Growth Articles” |
has the meaning ascribed thereto under the heading “Proposal No. 5: Transaction Proposal – Background”. |
21
“TerrAscend Growth Board” |
means the board of directors of TerrAscend Growth. |
“TerrAscend Growth Class B Shares” |
has the meaning ascribed thereto under the heading “Proposal No. 5: Transaction Proposal – Background”. |
“TerrAscend Growth Common Shares” |
has the meaning ascribed thereto under the heading “Proposal No. 5: Transaction Proposal – Background”. |
“TerrAscend NJ LLC Agreement” |
means the loan agreement made by and among, inter alios, TerrAscend NJ LLC, HMS Processing LLC, HMS Hagerstown, LLC and HMS Health, LLC, collectively as borrower, the guarantors party thereto and Pelorus. |
“TerrAscend NJ Lenders” |
means the lenders party to the TerrAscend NJ LLC Agreement. |
“TerrAscend Nominee” |
has the meaning ascribed thereto under the heading “Proposal No. 5: Transaction Proposal – Structure of TerrAscend Growth”. |
“Third Party Proxyholder” |
Has the meaning ascribed thereto under the heading “General Proxy Matters – Virtual Meeting Protocols: Registering a Proxyholder to Attend the Meeting”. |
“Time of Closing” |
means 8:00 a.m. (Eastern Time) on the date on which the closing of the Investment occurs, or such other time as may be agreed to by TerrAscend Growth and the Investor. |
“Transaction Documents” |
means the Subscription Agreement, the Protection Agreement, the Side Letter and the Closing Documents. |
“Transaction Proposal” |
has the meaning ascribed thereto under the heading “Proposal No. 5: Transaction Proposal”. |
“Transaction Resolution” |
has the meaning ascribed thereto under the heading “Proposal No. 5: Transaction Proposal”. |
“TSX” |
means the Toronto Stock Exchange. |
“TSX Listing” |
means the Corporation’s proposed listing of its Common Shares on the TSX. |
“TSX Requirements” |
has the meaning ascribed thereto under the heading “Proposal No. 5: Transaction Proposal – Background”. |
22
“TSX Staff Notice” |
has the meaning ascribed thereto under the heading “Proposal No. 5: Transaction Proposal – Background”. |
“US GAAP” |
has the meaning ascribed thereto under the heading “Matters To Be Acted Upon At The Meeting – Proposal No. 2: Ratification of Selection of MNP as Auditor”. |
“Veloxis” |
means Veloxis Pharmaceuticals, Inc. |
“Voting Instruction Form” |
Has the meaning ascribed thereto under the heading “General Proxy Matters – Non-Registered Shareholders”. |
“WBD Holding PA Agreement” |
means the credit agreement by and among, inter alios, WDB Holding PA, Inc., as borrower, the loan parties party thereto and Acquiom Agency Services LLC, dated as of December 18, 2020, as amended by Amendment No. 1 thereto, dated as of April 28, 2022 and Amendment No. 2, dated as of November 11, 2022. |
“WBD Lenders” |
means the lenders party to the WBD Holding PA Agreement. |
MATTERS TO BE ACTED UPON AT THE MEETING
Presentation of Financial Statements
The audited consolidated financial statements of the Corporation for the year ended December 31, 2022 and the report of the auditor thereon will be presented at the Meeting. The financial statements of the Corporation and the report of the auditor thereon are publicly available under the Corporation’s profile on SEDAR at www.sedar.com and on the SEC’s website through EDGAR at www.sec.gov/edgar. No vote by the Shareholders with respect to the audited consolidated financial statements is required.
Proposal No. 1: Election of Directors
The Board of the Corporation currently consists of six directors, five of whom have been recommended for re-election to the Board by the Nominating and Corporate Governance Committee: Craig Collard, Kara DioGuardi, Ira Duarte, Ed Schutter, and Jason Wild (the “Director Nominees”). Mr. Collard, Ms. DioGuardi, Mr. Schutter, and Mr. Wild are each a current director of the Corporation who was previously elected by the Shareholders. Ms. Duarte, a member of the Board of the Corporation since December 2, 2022, was recommended by Craig Collard, a non-management director, to be a member of the Board of the Corporation. Each elected director will hold office until the close of the next annual meeting of Shareholders following his or her election, or any postponement(s) or adjournment(s) thereof, unless his or her office is vacated earlier or until his or her successor is elected or appointed. Effective immediately prior to the Meeting, upon Ms. Swartzman ceasing to be a director of the Corporation, the Board shall consist of five directors.
Management does not contemplate that any of the Director Nominees will be unable to serve as a director, but if that should occur for any reason prior to the Meeting, it is intended that discretionary authority shall be exercised by the persons named in the accompanying form of proxy to vote the proxy for the election of any other person or persons in place of any Director Nominee(s) unable to serve.
23
Unless otherwise indicated, the persons designated as proxyholders in the accompanying form of proxy will vote the Common Shares represented by such form of proxy, properly executed, FOR the election of each of the Director Nominees.
The following table sets forth information about each Director Nominee, including (i) his or her name, age, and province or state and country of residence, (ii) the period during which each has served as a director, (iii) memberships on committees of the Board, (iv) present principal occupation, business or employment, and (v) the number of Common Shares of the Corporation or any of its subsidiaries beneficially owned, or controlled or directed, directly or indirectly.
Information regarding the number of Common Shares beneficially owned, or controlled or directed, directly or indirectly, by the Director Nominees, not being within the knowledge of the Corporation, is based upon information furnished by the applicable Director Nominee and is as at the date hereof.
Name, Age, Province or State and Country of Residence |
Principal Occupation |
Current Position(s) with the Corporation |
Director Since |
Number of Common Shares Beneficially Owned, or Controlled or Directed, Directly or Indirectly |
Craig Collard, 57 |
CEO and Director, Heron Therapeutics |
Lead Independent Director Chair of the Nominating and Corporate Governance Committee Member of the Audit Committee and Compensation Committee |
December 6, 2018 |
408,579 Common Shares(1) |
Kara DioGuardi, 52 Maine, United States |
Co-Founder, Arthouse Entertainment |
Director Member of Compensation Committee Member of Nominating and Corporate Governance Committee |
March 3, 2022 |
60,827 Common Shares (2) |
24
Name, Age, Province or State and Country of Residence |
Principal Occupation |
Current Position(s) with the Corporation |
Director Since |
Number of Common Shares Beneficially Owned, or Controlled or Directed, Directly or Indirectly |
Ira Duarte, 54 North Carolina, United States
|
Chief Financial Officer, Veloxis Pharmaceuticals |
Director Chair of the Audit Committee Member of Nominating and Corporate Governance Committee |
December 2, 2022 |
Nil |
Ed Schutter, 71 |
Director |
Director Chair of the Compensation Committee |
November 2, 2020 |
1,123,645 Common Shares (3) |
Jason Wild, 50 |
President and Chief Investment Officer, JW Asset Management, LLC |
Director, Chairman of the Board, Executive Chairman |
December 8, 2017 |
88,621,984 Common Shares (4) |
________________
Director Biographies
The following are brief profiles of our Director Nominees, including a description of each individual’s principal occupation within the past five years.
Craig Collard
Craig A. Collard has served as a member of our Board since December 2018. Mr. Collard is currently the Chief Executive Officer and a member of the board of Heron Therapeutics, Inc., a commercial-stage biotechnology company, positions he has held since April 2023 and February 2023, respectively. He served as the Chief Executive Officer of Veloxis Pharmaceuticals, Inc. (“Veloxis”) from December 2015 until December 2021. Mr. Collard is a member of the board of directors of Sierra Oncology, Inc. Mr. Collard holds a Bachelor of Science in Engineering from the Southern College of Technology (now Southern Polytechnic State University) in Marietta, Georgia. The
25
Corporation believes that Mr. Collard is qualified to serve on the Board of Directors because of his extensive experience as an executive, his experience as a director and his industry experience in pharmaceuticals.
Kara DioGuardi
Kara DioGuardi has served as a member of our Board since March 2022. Ms. DioGuardi co-founded Arthouse Entertainment (“Arthouse”), a music publishing company, in 2000 and is currently the Chief Executive Officer of Arthouse. Ms. DioGuardi graduated from Duke University in 1992 with a Bachelor of Political Science and Government. The Corporation believes that Ms. DioGuardi is qualified to serve on the Board because of her extensive industry experience in the music and publishing industry that brings a strong understanding of people, marketing and culture.
Ira Duarte
Ira Duarte has served as a member of our Board since December 2022. Ms. Duarte currently serves as Chief Financial Officer of Veloxis, a position she has held since October 2018, and has held other finance roles at Veloxis from 2009 to 2018. A Certified Public Accountant, Ms. Duarte holds a B.S. in Accounting from Florida Atlantic University. The Corporation believes that Ms. Duarte is qualified to serve on the Board because of her extensive experience as an executive, her financial expertise as a CFO and her industry experience in pharmaceuticals.
Ed Schutter
Ed Schutter has served as a member of our Board since November 2020. Mr. Schutter was Chief Executive Officer of Arbor Pharmaceuticals (“Arbor”) from 2010 to 2021. Mr. Schutter is a registered pharmacist with a B.S. degree in Pharmaceutical Sciences from Mercer University and an M.B.A. from Kennesaw State University. He has also completed graduate studies in International Business at Njienrode University, Amsterdam, Netherlands. Mr. Schutter is currently a board member of Vitruvias Therapeutics, Intrance Medical Systems and Establishment Labs. The Corporation believes that Mr. Schutter is qualified to serve on the Board because of his extensive experience as an executive, his experience as a director and his industry experience in pharmaceuticals.
Jason Wild
Jason Wild has served as Chairman of our Board since December 2017. Mr. Wild is the President and Chief Investment Officer of JW Asset Management, LLC, an investment fund that he founded in 2003. Mr. Wild has also worked as a professional portfolio manager at JW Asset Management, LLC since 2003. Mr. Wild received a Bachelor’s Degree in Pharmacy from the Arnold and Marie Schwartz College of Pharmacy. The Corporation believes that Mr. Wild is qualified to serve on the Board because of his extensive experience in capital markets, the cannabis industry and his experience in pharmaceuticals.
Director Skills Matrix
In addition to the information provided in our directors’ biographies and elsewhere in this Circular, the following matrix summarizes certain skills and experience of our current directors, taking into account a number of qualifications we believe are important for service on our Board. This matrix is based on self-reported data collected from our directors. The matrix is intended to provide a summary of our directors’ self-reported qualifications and should not be considered to be a complete list of each director’s strengths and contributions to our Board.
26
Director |
|
Board Experience |
Cannabis Industry |
Capital Markets, Corporate Finance, M&A, Private Equity |
Pharmaceutical / Biomedical Industry |
General Management and Operations Experience (CEO / CFO / CPA designation / Consulting) |
Marketing / Branding / Customer Service |
Strategy |
Craig Collard |
|
✓ |
✓ |
✓ |
✓ |
✓ |
✓ |
✓ |
Kara DioGuardi |
|
✓ |
|
|
|
✓ |
✓ |
✓ |
Ira Duarte |
|
✓ |
|
✓ |
✓ |
✓ |
✓ |
✓ |
Ed Schutter |
|
✓ |
|
✓ |
✓ |
✓ |
✓ |
✓ |
Jason Wild |
|
✓ |
✓ |
✓ |
✓ |
✓ |
✓ |
✓ |
Family Relationships
There are no family relationships between any of our executive officers, directors or Director Nominees.
Cease Trade Orders
To the knowledge of the Corporation, no proposed director of the Corporation is, or within the ten years before the date of this Circular, has been, a director or officer of any company that:
Bankruptcies
To the knowledge of the Corporation, no proposed director of the Corporation is, or within ten years before the date of this Circular, has been, a director or an executive officer of any company that, while the person was acting in that capacity, or within a year of that person ceasing to act in the capacity, became bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency, or was subject to or instituted any proceedings, arrangement or compromise with creditors, or had a receiver, receiver manager or trustee appointed to hold its assets or made a proposal under any legislation relating to bankruptcies or insolvency.
To the knowledge of the Corporation, no proposed director of the Corporation has, within the ten years before the date of this Circular, become bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency, or become subject to or instituted any proceedings, arrangement or compromise with creditors, or had a receiver, receiver manager or trustee appointed to hold the assets of the proposed director.
Penalties and Sanctions
To the knowledge of the Corporation, no proposed director of the Corporation has been subject to: (a) any penalties or sanctions imposed by a court relating to securities legislation or by a securities regulatory authority or has entered into a settlement agreement with a securities regulatory authority; or (b) any other penalties or sanctions imposed by a court or regulatory body that would likely be considered important to a reasonable securityholder in deciding whether
27
to vote for a proposed director.
Proposal No. 2: Ratification of Appointment of MNP as Auditor
Management proposes the ratification of the appointment by the audit committee of MNP LLP (“MNP”), Chartered Professional Accountants, of Toronto, Ontario, as auditor of the Corporation at remuneration to be fixed by the Board. MNP was first appointed as auditor of the Corporation on March 7, 2017. To the Corporation’s knowledge, a representative of MNP will not be present at the Meeting, although the firm will be permitted to make a statement if it so desires.
The following table sets out the fees for services provided to the Corporation by our independent registered public accounting firm for the years ended December 31, 2022 and December 31, 2021.
Nature of Services |
|
|
December 31, 2022(1) |
December 31, 2021 (1) |
||
Audit Fees(2) |
$ |
|
2,286,914 |
|
$ |
1,414,961 |
Audit-Related Fees(3) |
$ |
|
5,758 |
|
$ |
114,197 |
Tax Fees(4) |
$ |
|
193,216 |
|
$ |
48,616 |
All Other Fees |
$ |
|
-- |
|
$ |
-- |
Total |
$ |
|
2,485,888 |
|
$ |
1,577,774 |
________________
(1) Such fees were paid in Canadian dollars and translated into U.S. dollars using the daily average exchange rate as reported by the H.10 statistical release of the Board of Governors of the Federal Reserve System on December 31, 2022 of C$1.3014 = US$1.00 and on December 31, 2021 of C$1.2753 = US$1.00 for the respective periods (the “Exchange Rate”, as applicable).
(2) Consists of fees for audit services. This includes, among other things, quarterly reviews and audit of the annual financial statements, including audit of historical financial statements converted from International Financial Reporting Standards to U.S. generally accepted accounting principles (“US GAAP”), and services that are normally provided in connection with statutory and regulatory filings or engagements. Included in audit fees are audit services of $636,335 relating to the Company’s Form 8-K for the acquisition of Gage Growth Corp. The 8-K filing included the December 31, 2021 audited standalone financial statements of Gage Growth Corp.
(3) Consists of fees that traditionally are performed by the independent accountant. This includes, among other things, review of the Registration Statement on Form 10 and the Registration Statements on Form S-8 and S-3 filings.
(4) Consists of fees billed for tax planning, tax advice and various taxation matters.
The Corporation’s audit committee (the “Audit Committee”) pre-approved all services provided by MNP in 2022. The Audit Committee has pre-approved all services anticipated to be provided by MNP during 2023.
On March 15, 2023, the Corporation adopted an Audit Committee Pre-approval Policy for the approval of services of the independent registered accounting firm. The Policy sets forth the particular services that may be pre-approved on a collective basis as well as the procedures for such pre-approval. The policy generally pre-approves specified services in the defined categories of audit-services, audit-related services and tax services up to specified amounts. Pre-approval may also be given as part of the Audit Committee’s approval of the scope of the engagement of the independent auditor or on an individual, explicit, case-by-case basis before the independent auditor is engaged to provide each service. The pre-approval of services may be delegated to one or more of the Audit Committee’s members, but the decision must be reported to the full Audit Committee at its next scheduled meeting.
Unless otherwise indicated, the persons designated as proxyholders in the accompanying form of proxy will vote the Common Shares represented by such form of proxy, properly executed, FOR the re-appointment of MNP as auditor of the Corporation to hold office until the close of the next annual meeting of Shareholders and the authorization of the Board to fix their remuneration.
Proposal No. 3: Approval of the Stock Option Plan Resolution and Unallocated Options
At the Meeting, management is seeking Shareholder approval of certain amendments to the Corporation’s stock option plan (the “Stock Option Plan”) and the approval of all unallocated stock options issuable thereunder in anticipation of the Corporation’s proposed TSX Listing pursuant to the Transaction Proposal as described further in this Circular.
The Stock Option Plan was originally adopted and approved by the Board effective March 8, 2017, was further amended and restated on November 2, 2021 and on April 19, 2023 as further described below. The Stock Option Plan
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governs the grant, administration and exercise of options to purchase Common Shares (“Options”) which may be granted to employees, directors or consultants (“Eligible Persons”) of the Corporation. A copy of the Stock Option Plan, including the recent amendments, is attached as Schedule “B” of the Circular and available under the Corporation’s profile on SEDAR at www.sedar.com and on the SEC’s website at www.sec.gov. For a description of the key features of the Stock Option Plan see the section below entitled “Stock Option Plan and RSU Plan – Stock Option Plan”.
2021 Stock Option Plan Amendments
In November 2021, the Corporation undertook certain normal course revisions to the Stock Option Plan to: (i) extend the standard vesting provisions of options granted under the Stock Option Plan from 33.3% on each of the first three anniversary dates from the date of grant to 25% on each of the first four anniversary dates from the date of grant; (ii) clarify that in the case of a voluntary resignation of employment from the Corporation or a subsidiary, any vested portion of options held by a participant will expire on the earlier of the expiry date of the option and the date which is 90 days after the termination date; and (iii) make other conforming changes to the plan for the participation of U.S. participants, including to permit the award of Options to U.S. taxpayers that can be either non-qualified stock options that do not meet the requirements of Section 422 of the United States Internal Revenue Code (“NQSOs”) or incentive stock options (referred to herein as “ISOs”) that are qualified under Section 422 of the United States Internal Revenue Code.
ISOs allow more favorable U.S. federal income tax treatment, in some circumstances, for participants in the Stock Option Plan who are subject to United States federal income tax. However, the Corporation may not be entitled to a compensation expense deduction when ISOs are exercised for purposes of the Corporation’s United States corporate income taxes. The Stock Option Plan does not require that Options awarded to United States participants in the Plan be ISOs; the Corporation has discretion to award either ISOs or NQSOs under the Stock Option Plan, as amended.
The Corporation has not granted any ISOs under the Stock Option Plan, and will not do so unless and until shareholder approval for the amendments is obtained at the Meeting. Other than the revisions to permit the award of ISOs to U.S. taxpayers, the other amendments to the Stock Option Plan in 2021 were within the authority of the Board to make without Shareholder approval under the terms of the Stock Option Plan.
2023 Stock Option Plan Amendments
In anticipation of the Corporation’s proposed TSX Listing pursuant to the Transaction Proposal as described further in this Circular, on April 19, 2023 the Board approved certain revisions to the Stock Option Plan to bring it into conformity with the provisions of the TSX Company Manual.
The Stock Option Plan also includes a number of “housekeeping” amendments, including conforming certain definitions with the Corporation’s RSU Plan for consistency (definitions of: “Corporation”, “Shares” and “Plan”) and updating certain other definitions to conform with TSX requirements (definitions of: “Exchange”, “Insider”, “Investor Relations Activities”, “NI 45-106” and “Share Compensation Arrangement”), all which were within the authority of the Board to make without Shareholder approval under the terms of the Stock Option Plan.
The key substantive amendments to the Stock Option Plan are summarized below:
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The Board may amend, suspend or discontinue the Plan or any Option at any time at its discretion, in good faith, acting reasonably, without obtaining the approval of the shareholders of the Corporation or Participants, provided, however, that no amendment, suspension or discontinuance of the Plan or of any Option may (i) materially and adversely affect any Option previously granted under the Plan without the consent of the Participant; or (ii) contravene the requirements (if any) of the Exchange (including, without limitation, the requirement that disinterested shareholder approval will be required to be obtained in certain circumstances) or any securities commission or regulatory body to which the Plan or the Corporation is subject to. Termination of the Plan shall not affect the ability of the Board to exercise the powers granted to it hereunder with respect to Options granted under the Plan prior to the date of such termination.
The above description of the amendments contained in the Stock Option Plan is qualified in its entirety by the full text of the Stock Option Plan which is attached as Schedule “B” to this Circular and will be available under the Corporation’s profile on SEDAR at www.sedar.com and on the SEC’s website at www.sec.gov.
For a summary of key terms of the Stock Option Plan, see “Statement of Named Executive Officer – Stock Option Plan and RSU Plan”.
Approval of Unallocated Options under the Stock Option Plan
Section 613(a) of the TSX Company Manual provides that all unallocated options, rights or other entitlements under a listed issuer’s security based compensation arrangements which do not have a fixed maximum aggregate number of securities issuable must be approved by a majority of the issuer's directors and by the issuer's security holders every three years. Given that the Stock Option Plan is a rolling 10% or “evergreen” plan, and in anticipation of the Corporation’s proposed TSX Listing pursuant to the Transaction Proposal as described further in this Circular, management is seeking Shareholder approval of all unallocated Options issuable under the Stock Option Plan.
Options (or any awards under share based compensation plans) are considered to be “allocated” under a plan when they are granted to a participant, and stock options or awards that remain available for grant under a plan are referred to as “unallocated”.
The Stock Option Plan provides that the number of Common Shares that may be reserved for issuance upon the exercise of Options to purchase Common Shares (together with any other share compensation arrangement of the Corporation, including the RSU Plan) will not exceed (in the aggregate) 10% of the outstanding Common Shares on each date on which the Option or other award, as applicable, is granted (including any Common Shares issuable on exchange of the outstanding proportionate voting shares and exchangeable shares of the Corporation, but otherwise on a non-diluted basis).
The number of “unallocated” Options is calculated by subtracting (i) the number of Common Shares issuable pursuant to outstanding Options under the Stock Option Plan from (ii) the number calculated as 10% of the issued and outstanding Common Shares at the time, including any Common Shares issuable on exchange of the outstanding proportionate voting shares and exchangeable shares of the Corporation. The Stock Option Plan requires the approval by the Board of Directors for all unallocated Options under the Stock Option Plan, and is subject to receipt of Shareholder approval.
As at the Record Date, the Corporation has Common Shares issued and outstanding, and Common Shares issuable on exchange of the outstanding proportionate voting shares and exchangeable shares of the Corporation. Therefore, the aggregate maximum of Common Shares available for issuance pursuant to awards made under both the Stock Option Plan and RSU Plan is . As of the Record Date, there were Options outstanding under the
30
Stock Option Plan, leaving up to unallocated Options available for grant (assuming no further grants of RSUs).
If Shareholder approval is not obtained at the Meeting, the Stock Option Plan will continue to be in full force and effect and all Options issued thereunder will continue unaffected. However, pursuant to the rules of the TSX, all unallocated Options under the Stock Option Plan will be cancelled and the Corporation will not be able to issue any additional Options under the Stock Option Plan, if and only to the extent that the Corporation is subject to the policies of the TSX at the applicable time. If the Stock Option Plan is not approved by Shareholders by April 19, 2024, the Corporation will not be able to issue ISOs under the Stock Option Plan and options granted to U.S. participants and will continue to be treated as NQSOs.
To be effective, the Stock Option Plan resolution set out below (the “Stock Option Plan Resolution”) requires the affirmative vote of not less than a majority of the votes cast by Shareholders present in person or represented by proxy and entitled to vote at the Meeting. The Board recommends that Shareholders vote FOR the Stock Option Plan Resolution. Common Shares represented by proxies in favor of the person designated on the form of proxy will be voted FOR the Stock Option Plan Resolution, unless a Shareholder has specified in the form of proxy that his, her or its Common Shares are to be voted against the Stock Option Plan Resolution.
The text of the Stock Option Plan Resolution to be submitted to Shareholders at the Meeting is set forth below:
“IT IS HEREBY RESOLVED, THAT:
Proposal No. 4: Approval of Amended and Restated Share Unit Plan
The Corporation has a share unit plan which was approved by the Board (the “RSU Plan”) effective November 19, 2019 that governs the grant, administration and release of share units which may be granted to Eligible Persons of the Corporation.
The purpose of the RSU Plan is to (i) to promote a further alignment of interests between directors, officers, consultants and key employees of the Corporation, and the shareholders of the Corporation; (ii) associate a portion of such persons’
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compensation with the returns achieved by shareholders of the Corporation; and (iii) attract and retain directors, officers, consultants and key employees with the knowledge, experience and expertise required by the Corporation.
2021 RSU Plan Amendments
In November 2021, the Corporation undertook certain normal course revisions to the RSU Plan to make conforming changes to the plan for the participation of U.S. participants, which were within the authority of the Board to make without Shareholder approval under the terms of the RSU Plan.
2023 RSU Plan Amendments
On April 19, 2023 the Corporation made certain “housekeeping” and other amendments to the RSU Plan in anticipation of the Corporation’s proposed TSX Listing pursuant to the Transaction Proposal as described further in this Circular, to bring the RSU Plan into conformity with the provisions of the TSX Company Manual.
Like the Stock Option Plan, the RSU Plan conforms certain definitions between the two plans for consistency (definition of: “Plan”), and updates certain other definitions to conform with TSX requirements (definitions of: “Exchange”, “Insider”, “NI 45-106” and “Share Compensation Arrangement”), all which were within the authority of the Board to make without Shareholder approval under the terms of the RSU Plan.
The only substantive amendment to the Amended and Restated RSU Plan was the replacement of the amendment provision applicable to the RSU Plan or any grants of awards under the RSU Plan with the following provision to ensure consistency with same definition in the Stock Option Plan and bring it into conformity with the provisions of the TSX Company Manual:
The Board may amend, suspend or discontinue the Plan or any Grant at any time at its discretion, in good faith, acting reasonably, without obtaining the approval of the shareholders of the Corporation or Participants, provided, however, that no amendment, suspension or discontinuance of the Plan or of any Grant may (i) materially and adversely affect any rights of a Participant in respect of any Grant previously made under the Plan without the consent of the Participant; or (ii) contravene the requirements (if any) of the Exchange (including, without limitation, the requirement that disinterested shareholder approval will be required to be obtained in certain circumstances) or any securities commission or regulatory body to which the Plan or the Corporation is subject to. Termination of the Plan shall not affect the ability of the Board to exercise the powers granted to it hereunder with respect to Grants made under the Plan prior to the date of such termination.
The above description of the amendments contained in the RSU Plan is qualified in its entirety by the full text of the RSU Plan which is attached as Schedule “C” to this Circular and will be available under the Corporation’s profile on SEDAR at www.sedar.com and on the SEC’s website at www.sec.gov.
For a summary of key terms of the RSU Plan, see “Statement of Named Executive Officer – Stock Option Plan and RSU Plan”.
Approval of Unallocated RSUs under the RSU Plan
As noted above in “Approval of Unallocated Options under the Stock Option Plan”, given that the RSU Plan is a rolling 10% or “evergreen” plan, and in anticipation of the Corporation’s proposed TSX Listing pursuant to the Transaction Proposal as described further in this Circular, management is seeking Shareholder approval of all unallocated RSUs issuable under the RSU Plan.
The RSU Plan provides that the number of Common Shares that may be reserved for issuance under the RSU Plan and under any other share compensation plans of the Corporation, including the Stock Option Plan, will not exceed (in the aggregate) 10% of the outstanding Common Shares on the grant date (including any Common Shares issuable on exchange of the outstanding proportionate voting shares and exchangeable shares of the Corporation, but otherwise
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on a non-diluted basis).
The number of “unallocated” RSUs is calculated by subtracting (i) the number of Common Shares issuable pursuant to outstanding RSUs under the RSU Plan from (ii) the number calculated as 10% of the issued and outstanding Common Shares at the time, including any Common Shares issuable on exchange of the outstanding proportionate voting shares and exchangeable shares of the Corporation. The RSU Plan requires the approval by the Board of Directors for all unallocated Options under the Stock Option Plan, and is subject to receipt of Shareholder approval.
As noted above in “Approval of Unallocated Options under the Stock Option Plan”, the aggregate maximum of Common Shares available for issuance pursuant to awards made under both the RSU Plan and the Stock Option Plan is . As of the Record Date, there were RSUs outstanding under the RSU Plan, leaving up to unallocated RSUs available for grant (assuming no further grants of Stock Options).
If Shareholder approval is not obtained at the Meeting, the RSU Plan will continue to be in full force and effect and all RSUs issued thereunder will continue unaffected. However, pursuant to the rules of the TSX, all unallocated RSUs under the RSU Plan will be cancelled and the Corporation will not be able to issue any additional RSUs under the RSU Plan, if and only to the extent that the Corporation is subject to the policies of the TSX at the applicable time.
To be effective, the RSU Plan resolution (the “RSU Plan Resolution”) requires the affirmative vote of not less than a majority of the votes cast by Shareholders present in person or represented by proxy and entitled to vote at the Meeting. The Board recommends that Shareholders vote FOR the RSU Plan Resolution. Common Shares represented by proxies in favor of the person designated on the form of proxy will be voted FOR the RSU Plan Resolution, unless a Shareholder has specified in the form of proxy that his, her or its Common Shares are to be voted against the RSU Plan Resolution.
The text of the RSU Plan Resolution to be submitted to Shareholders at the Meeting is set forth below:
“IT IS HEREBY RESOLVED, THAT:
Proposal No. 5: Transaction Proposal
At the Meeting, Shareholders will be asked to consider, and if deemed advisable, pass a special resolution authorizing TerrAscend Growth, a wholly-owned subsidiary of the Corporation, to issue and sell on a private placement basis TerrAscend Growth Common Shares for aggregate gross proceeds of US$1,000,000 (the “Transaction Resolution”),
33
as further described herein, which shall be deemed, for the purposes of section 184(3) of the OBCA, to be a sale of all or substantially all of the assets of the Corporation (the “Transaction Proposal”).
TerrAscend is a cannabis operator with vertically integrated licensed operations in Pennsylvania, New Jersey, Michigan, Maryland and California, and is a cannabis retailer in Ontario, Canada with a dispensary in Toronto, Ontario. TerrAscend’s cultivation and manufacturing practices yield consistent and high-quality cannabis, providing industry-leading product selection to both the medical and legal adult-use markets. Notwithstanding the fact that various states in the U.S. have implemented laws or that have otherwise legalized the use of cannabis, the use of cannabis remains illegal under U.S. federal law for any purpose, by way of the CSA. Given the Corporation’s cannabis activities in the U.S. it has been precluded from listing its securities on certain stock exchanges with more rigorous regulatory restrictions, such as the TSX, as further described below. The Common Shares are currently listed on the CSE under the ticker symbol “TER”.
On October 16, 2017, the TSX provided clarity regarding the application of Sections 306 (Minimum Listing Requirements) and 325 (Management) and Part VII (Halting of Trading, Suspension and Delisting of Securities) of the TSX Company Manual (collectively, the “TSX Requirements”) to issuers with business activities in the cannabis sector. In TSX Staff Notice 2017-0009 (the “TSX Staff Notice”), the TSX stated that issuers with ongoing business activities that violate U.S. federal law regarding cannabis are not in compliance with the TSX Requirements. The TSX noted that these non-compliant business activities may include (i) direct or indirect ownership of, or investment in, entities engaging in activities related to the cultivation, distribution or possession of cannabis in the United States, (ii) commercial interests or arrangements with such entities, (iii) providing services or products specifically targeted to such entities, or (iv) commercial interests or arrangements with entities engaging in providing services or products to U.S. cannabis companies. The TSX reminded issuers that, among other things, should the TSX find that a listed issuer is engaging in activities contrary to the TSX Requirements, the TSX has the discretion to initiate a delisting review.
As part of the Corporation’s overall Canadian strategy, TerrAscend increased its ownership interest in Cookies to 95% of the issued and outstanding shares and such ownership interest will be transferred to TerrAscend Canada in order to sever its Canadian cannabis operations and interests from its U.S. cannabis operations and interests (the “TerrAscend Canada Transfer”). Following the TerrAscend Canada Transfer, TerrAscend will own (i) indirectly through TerrAscend Canada, the Canadian cannabis business, including the Cookies retail cannabis business as well as TerrAscend’s intellectual property portfolio, and (ii) through TerrAscend Growth, all of the U.S. cannabis interests.
On March 14, 2023, the Corporation announced its intention to list on the TSX.
In connection with the Corporation’s strategic initiatives, including its proposed listing of the Common Shares on the TSX, TerrAscend Growth has amended its articles of incorporation, as amended (the “TerrAscend Growth Articles”) to, among other things, reconstitute its share structure such that the authorized share capital of TerrAscend Growth consists of an unlimited number of Class A shares (the “TerrAscend Growth Common Shares”), an unlimited number of Class B shares (the “TerrAscend Growth Class B Shares”) and an unlimited number of non-voting non-participating exchangeable shares (the “Non-Voting Shares”). TerrAscend currently holds all of the TerrAscend Growth Class B Shares.
On April 19, 2023, TerrAscend Growth entered into the Subscription Agreement with the Investor pursuant to which TerrAscend Growth has agreed, subject to the terms and conditions contained therein, to issue TerrAscend Growth Common Shares to the Investor (the “Investment”) in exchange for US$1,000,000 (the “Subscription Amount”). Following the closing of the Investment, the TerrAscend Growth Class B Shares held by the Corporation will automatically be exchanged for Non-Voting Shares, representing approximately 99.8% of the issued and outstanding shares in TerrAscend Growth on an as-converted basis.
TerrAscend Growth will retain an option (the “Repurchase Option”), at any time, to repurchase all of the TerrAscend Growth Common Shares that are held by the Investor at a price per TerrAscend Growth Common Share equal to the Aggregate Repurchase Price. The Aggregate Repurchase Price will be payable by TerrAscend Growth to the Investor in either cash or Common Shares, as determined in the sole discretion of the Investor, subject to compliance with applicable law.
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In addition, the Investor will retain an option (the “Put Option”), at any time after four months’ advanced written notice (the “Advanced Put Notice”), with such Advanced Put Notice to be effective only on or after the five year anniversary of the closing of the Investment, to sell all of its TerrAscend Growth Common Shares to TerrAscend Growth at the Repurchase/Put Price, which will be payable in either cash or Common Shares, as determined in the sole discretion of the Investor, subject to compliance with applicable law. The Investor has also been granted the right to appoint one director to the two-person board of directors of TerrAscend Growth.
On April 20, 2023, the Corporation announced the entering into of the Subscription Agreement and the filing of the preliminary Circular with the SEC in order to consider the Transaction Proposal.
In the event the Investment closes and if the Corporation satisfies the listing and regulatory requirements of the TSX and the TSX Listing is complete, the Corporation will be a TSX-listed issuer that will become subject to the TSX Requirements and accordingly will be prohibited from owning or investing, either directly or indirectly, in entities engaging in activities related to the cultivation, distribution or possession of cannabis in the United States that could be deemed to violate applicable federal laws relating to cannabis.
Capital Structure
TerrAscend currently holds TerrAscend Growth Class B Shares, representing 100% of the issued and outstanding shares of TerrAscend Growth. In accordance with the TerrAscend Growth Articles, such TerrAscend Growth Class B Shares will automatically, without any action on behalf of the Corporation, be exchanged for Non-Voting Shares immediately upon issuance of the TerrAscend Growth Common Shares to the Investor upon closing of the Investment. The Non-Voting Shares do not carry voting rights, rights to receive dividends or other rights upon dissolution of TerrAscend Growth, but are exchangeable into TerrAscend Growth Common Shares at any time. The Corporation intends to execute an undertaking to the TSX prohibiting it from exchanging the Non-Voting Shares into TerrAscend Growth Common Shares for so long as the Common Shares are listed on the TSX or such exchange is permitted in accordance with the rules and policies of the TSX.
Upon the closing of the Investment in accordance with the terms of the Subscription Agreement, the Investor will hold all of the issued and outstanding TerrAscend Growth Common Shares and the Corporation will hold all of the issued and outstanding Non-Voting Shares.
The following table sets forth the ownership of all issued and outstanding shares in TerrAscend Growth (including the TerrAscend Growth Common Shares, TerrAscend Growth Class B Shares and the Non-Voting Shares):
(a) as of the date of this Circular:
Name |
Number |
Class |
Pro Forma Ownership Percentage |
|
|
|
TerrAscend |
1,100 |
TerrAscend Class B Shares |
100% |
|
|
|
(b) as of the closing date of the Investment:
Name |
Number |
Class |
Pro Forma Ownership Percentage |
|
|
|
Investor |
2 |
TerrAscend Growth Common Shares |
0.2% |
|
|
|
TerrAscend |
1,100 |
Non-Voting Shares |
99.8% |
|
|
|
If the conditions to closing the Investment are not met, including, in the event the Transaction Proposal does not receive the requisite Shareholder approval, the Investment will not close, the TerrAscend Growth Common Shares will not be issued to the Investor and the TerrAscend Growth Class B Shares held by the Corporation will not be
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exchanged for Non-Voting Shares. In such circumstances, the Subscription Agreement will be terminated, TerrAscend Growth will be required to pay the Break Fee to the Investor and the TSX Listing will not be completed. See risk factors “No Certainty that All of the Conditions Precedent will be Satisfied or Waived” and “The Subscription Agreement May be Terminated in Certain Circumstances”.
Ownership Interests of TerrAscend Growth
TerrAscend Growth currently holds, directly or indirectly, or controls all or substantially all of the assets of TerrAscend. In connection with the Corporation’s strategic initiatives in connection with the TSX Listing, the Corporation will complete the TerrAscend Canada Transfer in order to sever the Corporation’s Canadian cannabis operations and interests from its U.S. cannabis operations and interests. Accordingly, following the TerrAscend Canada Transfer, TerrAscend Growth will no longer directly, or indirectly, own or control the Canadian cannabis business of TerrAscend Canada, including the Cookies retail cannabis business or TerrAscend’s intellectual property portfolio.
In the event that the Investment does not close, TerrAscend will continue to hold TerrAscend Growth Class B Shares and as a result TerrAscend will retain control over TerrAscend Growth. In such circumstances, the TSX Listing will not be completed. See risk factor “No Certainty that All of the Conditions Precedent will be Satisfied or Waived”.
Governance and Restrictions
The Investor has the right to appoint one director to the TerrAscend Growth Board (the “Investor Nominee”) until such time as the Investor holds less than 10% of the issued and outstanding TerrAscend Growth Common Shares. The Corporation has the right to appoint one director to the TerrAscend Growth Board (the “TerrAscend Nominee”). The TerrAscend Growth Board currently consists of two directors, Ari Unterman and Keith Stauffer. Prior to closing of the Investment, both directors are expected to resign from the TerrAscend Growth Board and their respective vacancies will be filled by the Investor Nominee and the TerrAscend Nominee. The directors of TerrAscend Growth do not, and will not, have any fiduciary or other duties to TerrAscend’s shareholders.
As a result of the limited rights associated with the Non-Voting Shares that TerrAscend will hold following the closing of the Investment, TerrAscend and TerrAscend Growth have entered into the Protection Agreement to provide for certain negative covenants in order to preserve the value of the Non-Voting Shares until such time as the Non-Voting Shares are converted into TerrAscend Growth Common Shares but does not provide TerrAscend with the ability to direct the business, operations or activities of TerrAscend Growth.
The Protection Agreement requires TerrAscend Growth to maintain and preserve its business organizations, properties, assets, rights, employees, goodwill and business relationships and provides TerrAscend with the ability to restrict the operations of TerrAscend Growth, including, among other things, prohibitions on the following activities without the prior consent of TerrAscend:
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In addition, the Protection Agreement requires TerrAscend Growth to, among other things: (a) maintain its good standing and qualification to conduct business in its jurisdiction of incorporation and in any other jurisdiction in which it is so qualified; and (b) obtain and maintain all third party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments or confirmations that are required in order to maintain material contracts and in order to permit the conversion of the Non-Voting Shares into TerrAscend Growth Common Shares.
The Protection Agreement also includes various information rights that require TerrAscend Growth to notify the Corporation of certain specified developments and provide ongoing monthly and annual financial information. TerrAscend Growth is also required to prepare and operate in accordance with an approved annual budget that complies with certain mandatory requirements for liquidity, EBITDA and cash flow as set forth in the Protection Agreement.
Following the closing of the Investment, the Corporation will not have the ability to unilaterally make decisions with respect to the business, operations or activities of TerrAscend Growth as the Corporation only has the right to appoint one of the two directors of the TerrAscend Growth Board and the Protection Agreement only provides for negative covenants. Nonetheless, from an accounting perspective, the Corporation expects that it will consolidate the financial statements of TerrAscend Growth.
The Transaction Proposal
At the Meeting, the Shareholders will be asked to consider and, if deemed advisable, to pass, with or without variation, the Transaction Proposal, the full text of which is set forth in Appendix 2 to this Circular, authorizing TerrAscend Growth, to issue and sell on a private placement basis TerrAscend Growth Common Shares for aggregate gross proceeds of US$1,000,000, which shall be deemed, for purposes of section 184(3) of the OBCA, to be a sale of all or substantially all of the assets of the Corporation.
The following summarizes the terms of the Subscription Agreement. The following description of the Subscription Agreement is qualified in its entirety by reference to the full text of the Subscription Agreement, which is publicly available under the Corporation’s profile on SEDAR at www.sedar.com and on the SEC’s website at www.sec.gov.
On April 19, 2023, TerrAscend Growth entered into the Subscription Agreement with the Investor, pursuant to which TerrAscend Growth has agreed to issue and sell TerrAscend Growth Common Shares to the Investor for an aggregate subscription amount of US$1,000,000. The Subscription Agreement contains customary covenants, representations and warranties of and from each of TerrAscend Growth and the Investor and various conditions precedent, with respect to each party. The representations, warranties and covenants contained in the Subscription Agreement were made only for purposes of that agreement and as of specific dates, were solely for the benefit of the parties to the Subscription Agreement, may be subject to limitations agreed upon by the parties and may be subject to standards of materiality applicable to the parties that differ from those applicable to investors.
Representations, Warranties and Covenants
Each of TerrAscend Growth and the Investor has made certain customary representations and warranties relating to the TerrAscend Growth Common Shares being issued and sold pursuant to the Subscription Agreement, and has agreed to certain customary covenants in the Subscription Agreement for a transaction of this nature.
Conditions in Favour of TerrAscend Growth
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The obligations of TerrAscend Growth to complete the Investment are subject to the satisfaction or waiver by TerrAscend Growth of each of the following conditions on or before the Time of Closing, in accordance with the Subscription Agreement:
Conditions in Favour of the Investor
The obligations of the Investor to complete the Investment are subject to the satisfaction or wavier by the Investor of each of the following conditions on or before the Time of Closing, in accordance with the Subscription Agreement:
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Repurchase Option
Pursuant to the terms of the Subscription Agreement, TerrAscend Growth will retain the Repurchase Option to repurchase all TerrAscend Growth Common Shares that are held by the Investor at a price per TerrAscend Growth Common Share equal to the Aggregate Repurchase Price. The Aggregate Repurchase Price may be payable in either cash or Common Shares entirely at the Investor’s election, subject to compliance with applicable law. TerrAscend Growth may exercise the Repurchase Option by delivering written notice (the “Exercise Notice”) to the Investor. Upon due exercise of the Repurchase Option in accordance with the terms of the Subscription Agreement, TerrAscend Growth will satisfy the Aggregate Repurchase Price payable to the Investor by paying either: (i) an amount in cash equal to the Aggregate Repurchase Price payable to the Investor by wire transfer of immediately available funds; or (ii) TerrAscend Growth will (A) cause TerrAscend to issue the number of Common Shares having an aggregate value equal to the aggregate Repurchase/Put Price payable to the Investor, to be determined by dividing such aggregate Repurchase/Put Price by the fair market value of a Common Share measured as of the second trading day immediately preceding the date of issuance and (B) pay to the Investor an amount in cash equal to 40% of the Subscription Amount less the aggregate Dividend Amounts paid to the Investor as of the date of the Exercise Notice.
Put Option
Pursuant to the terms of the Subscription Agreement, the Investor will retain the Put Option, which is exercisable at any time following the five-year anniversary of the closing of the Investment, to sell all of its TerrAscend Growth Common Shares to TerrAscend Growth at a price equal to the Repurchase/Put Price. The Repurchase/Put Price may be payable in either cash or Common Shares entirely at the Investor’s election, subject to compliance with applicable law. The Investor may exercise the Put Option by delivering written notice to TerrAscend Growth. Upon due exercise of the Put Option in accordance with the terms of the Subscription Agreement, TerrAscend Growth will satisfy the Repurchase/Put Price payable to the Investor by paying either: (i) an amount in cash equal to the aggregate amount of the Repurchase/Put Price payable to the Investor by wire transfer of immediately available funds; or (ii) TerrAscend Growth will cause TerrAscend to issue the number of Common Shares having an aggregate value equal to aggregate Repurchase/Put Price payable to the Investor to be determined by dividing such aggregate Repurchase/Put Price by the fair market value of a Common Share measured as of the second trading day immediately preceding the date of issuance.
Director Nominee Rights
Upon the closing of the Investment, the Investor will be entitled to nominate one independent director to the two person TerrAscend Growth Board; provided that such director is acceptable to TerrAscend and in accordance with the terms of the Side Letter and the Protection Agreement.
Dividend Rights
Commencing on the date of the Subscription Agreement until such time as the Investor no longer owns any TerrAscend Growth Common Shares, the Investor has the right, to the extent permitted under applicable law, to receive dividends, paid annually in cash, in an amount equal to 20% of the Subscription Amount (the “Dividend Amount”); provided that in the event the Subscription Agreement is terminated in accordance with the terms thereof and closing of the Investment does not occur, the Dividend Amount will not be payable to the Subscriber.
Termination Rights
The Subscription Agreement contains termination rights in favour of each of TerrAscend Growth and the Investor, in the event that the conditions in favour of each such party are not fulfilled by the other party on or prior to the Outside Date.
Break Fee
TerrAscend Growth is required to pay the Investor the Break Fee if the Subscription Agreement is terminated in accordance with the terms thereof. In such circumstances, the Break Fee will be payable to the Investor within five business days of the obligation to pay the Break Fee arising.
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Subject to the provisions of the OBCA, closing of the Investment as contemplated in the Subscription Agreement may occur if the Transaction Resolution is authorized by not less than 66 2/3% of the votes cast by Shareholders, present in person or represented by proxy and entitled to vote at the Meeting.
Required Vote
You may select “For”, “Against” or “Abstain” with respect to the Transaction Proposal. The affirmative vote of 66 2/3% of the votes cast by Shareholders, present in person or represented by proxy, will constitute approval of the Transaction Proposal. Broker non-votes, if any, and abstentions will not be counted as votes cast and will have no effect on the outcome of the voting on this proposal.
THE BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE “FOR” THE TRANSACTION PROPOSAL. Unless otherwise instructed, the persons designated in the enclosed proxy form intend to vote “FOR” the Transaction Proposal.
It is a condition precedent to the closing of the Investment, that the Shareholders approve the Transaction Proposal. If the Transaction Proposal does not receive the requisite approval, the Investment will not close. In the event that the Investment does not close, TerrAscend will be required to pay the Break Fee to the Investor and the TSX Listing will not be completed. See risk factor “No Certainty that All of the Conditions Precedent will be Satisfied or Waived” and “The Subscription Agreement May be Terminated in Certain Circumstances”.
Risk Factors Relating to the Transaction Proposal
In assessing the resolution approving the Transaction Proposal, Shareholders should carefully consider the risks described below. Shareholders should also carefully consider the risks described under the heading “Risk Factors” in TerrAscend’s annual report on Form 10-K for TerrAscend’s fiscal year ended December 31, 2022 filed with Canadian securities regulators and available under the Corporation’s profile on SEDAR at www.sedar.com and with the SEC through EDGAR at www.sec.gov/edgar, which risk factors are incorporated herein by reference. Readers are cautioned that such risk factors are not exhaustive and additional risks and uncertainties, including those currently unknown or considered immaterial to the Corporation may also adversely affect the Corporation.
The failure to approve the Transaction Proposal could negatively impact us and our future operations, financial condition and prospects.
The resolution to approve the Transaction Proposal requires approval by 66 2⁄3% of the votes cast by the Shareholders present in person or represented by proxy at the Meeting. There can be no certainty, nor can we provide any assurance, that the required Shareholder approval will be obtained. If the Transaction Proposal is not approved, the Investment will not close and the TSX Listing will not be completed. There are risks that the dedication of substantial resources by our management to the completion of these transactions could have a negative impact on our current business relationships (including with current and prospective employees, customers, distributors, suppliers and partners) and could have a material adverse effect on our current and future business, operations, results of operations, financial condition and prospects. In addition, failure to approve the Transaction Proposal for any reason could materially and negatively impact the market price of our Common Shares.
No Certainty that All of the Conditions Precedent will be Satisfied or Waived
The completion of the Investment is subject to a number of conditions precedent, certain of which are outside the control of the Corporation and the Investor, including receipt of Shareholder Approval and the consent of counterparties to certain contracts, including the Lenders. There can be no certainty, nor can the parties to the Subscription Agreement provide any assurance, that all conditions precedent to the Investment will be satisfied or waived, nor can there be any certainty as to the timing of their satisfaction or waiver. Moreover, a substantial delay in obtaining satisfactory approvals and consents could result in the Investment and the TSX Listing not being completed. Certain costs relating to the Investment, such as legal, accounting and advisory fees must be paid by the Corporation even if the Investment is not completed. This may have a material adverse effect upon the business, financial condition and results of operations of the Corporation and may cause the value of the Common Shares to decline. In addition, if the Investment is not completed, the market price of the Common Shares may be negatively impacted to the extent that the market price reflects a market assumption that the Investment will be completed.
The Subscription Agreement May be Terminated in Certain Circumstances
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TerrAscend Growth and the Investor have the right to terminate the Subscription Agreement in certain circumstances. Accordingly, there is no certainty, nor can the Corporation provide any assurance, that the Subscription Agreement will not be terminated before completion of the Investment. In such circumstances, the Corporation will not qualify for the TSX’s minimum listing requirements and the listing of the Common Shares on the TSX will not be completed. In addition, in such circumstances, TerrAscend Growth will be required to pay the Break Fee to the Investor.
The Investment and proposed TSX Listing may divert the attention of the Corporation’s management
The Investment and the proposed TSX Listing could cause the attention of the Corporation’s management to be diverted from the day-to-day operations. These disruptions could be exacerbated by a delay in the completion of the Investment and/or the TSX Listing and could have an adverse effect on the business, operating results or prospects of the Corporation regardless of whether the Investment is ultimately completed.
TSX Listing
The Corporation has applied to list the Common Shares on the TSX. In connection with the Corporation’s proposed listing on the TSX and in order to qualify for the TSX’s minimum listing requirements, the Corporation has structured an internal reorganization, which involves the closing of the Investment. In the event the Investment closes, the listing of the Common Shares on the TSX remains subject to the review of the TSX and is contingent on the satisfaction of all listing and regulatory requirements of the TSX. There is no assurance that the TSX will approve the Corporation’s listing application and the listing on the TSX as currently proposed by the Corporation.
In the event the Investment closes and the TSX Listing is completed the Corporation will be subject to certain restrictions of the TSX, which may constrain our ability to expand our business in the United States.
Our Common Shares are currently listed on the CSE. In the event the Investment closes, the Corporation satisfies the listing and regulatory requirements of the TSX, the TSX approves our listing application and the TSX Listing is complete, we will be required to comply with the TSX requirements or guidelines when conducting business, especially when pursuing opportunities in the United States.
On October 16, 2017, the TSX provided clarity regarding the application of the TSX Requirements to TSX-listed issuers with business activities in the cannabis sector. In the TSX Staff Notice, the TSX notes that issuers with ongoing business activities that violate U.S. federal law regarding cannabis are not in compliance with the TSX Requirements. The TSX reminded issuers that, among other things, should the TSX find that a listed issuer is engaging in activities contrary to the TSX Requirements, the TSX has the discretion to initiate a delisting review. Although we expect to be able to comply with the TSX Requirements following the TSX Listing, there is a risk that our interpretation may differ from the TSX and failure to comply with the TSX Requirements could result in a delisting of our Shares from the TSX or the denial of an application for certain approvals, such as to have additional securities listed on the TSX, which could have a material adverse effect on the trading price of our Common Shares and could have a material adverse effect on our business, financial condition and results of operations.
We may be subject to heightened scrutiny by regulatory authorities
Any future investments, joint ventures or operations in the United States, may become the subject of heightened scrutiny by regulators, stock exchanges and other authorities in Canada. As a result, we may be subject to significant direct and indirect interaction with public officials. There can be no assurance that this heightened scrutiny will not in turn lead to the imposition of certain restrictions on our ability to invest in the United States or any other jurisdiction, in addition to those described herein.
The trading price of our Common Shares cannot be guaranteed and may be volatile due to various market-related and other factors.
Securities markets have a high level of price and volume volatility, and the market price of securities of many companies have experienced wide fluctuations in price which have not necessarily been related to the operating performance, underlying asset values or prospects of such companies. Securities of companies in the cannabis industry have experienced substantial volatility often based on factors unrelated to the financial performance or prospects of the companies involved. These factors include global economic developments and market perceptions of the industry. There can be no assurance that continuing fluctuations in price will not occur. The market price of the Common Shares
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is also likely to be affected by changes in our financial condition or results of operations. Other factors unrelated to our performance that may have an effect on the price of our Common Shares include: (a) current events affecting the economic situation in Canada, the United States and internationally; (b) trends in the cannabis industry; (c) regulatory and/or government actions, rulings or policies; (d) changes in financial estimates and recommendations by securities analysts or rating agencies; (e) acquisitions and financings; (f) quarterly variations in operating results; (g) the operating and share price performance of other companies, including those that investors may deem comparable; and (h) the issuance of additional equity securities or the perception that such issuance may occur.
Changes in Laws, Regulations and Guidelines
The operations of TerrAscend Growth and its subsidiaries are subject to a variety of laws, including, among other things, state and local regulations and guidelines relating to the cultivation, manufacture, management, transportation, distribution, sale, storage and disposal of cannabis. Changes to such laws, regulations and guidelines due to matters beyond our control may cause adverse effects to our business, financial condition and result of operations. Local, state and federal laws and regulations governing cannabis for medicinal and recreational purposes are broad in scope and are subject to evolving interpretations, which could require TerrAscend Growth to incur substantial costs associated with bringing its operations into compliance. In addition, violations of these laws, or allegations of such violations, could disrupt our operations and result in a material adverse effect on our financial performance. It is beyond the Corporation’s scope to predict the nature of any future change to the existing laws, regulations, policies, interpretations or applications, nor can the Corporation determine what effect such changes, when and if promulgated, could have on our business. The Cannabis Act came into force in Canada on October 17, 2018 along with various related regulations. In addition, government policy changes or public opinion may also result in a significant influence over the regulation of the cannabis industry. A negative shift in the public’s perception of medical or recreational cannabis could affect future legislation or regulation. Among other things, a shift could cause state and local jurisdictions to abandon initiatives or proposals to legalize medical or recreational cannabis, thereby limiting the number of new state jurisdictions into which TerrAscend Growth could expand. Any inability to fully implement TerrAscend Growth’s expansion strategy may have a material adverse effect on our business, financial condition and results of operations.
Cannabis is a controlled substance in the United States and therefore subject to the Controlled Substances Act.
TerrAscend Growth and its subsidiaries engage in cannabis-related activities in jurisdictions in the United States where local state law permits such activities. In the United States, cannabis is regulated at both the federal and state levels. To our knowledge, there are to date a total of 38 states, and the District of Columbia, that have now legalized cannabis in some form, including California, Nevada, New York, New Jersey, Washington and Florida. Although several states allow the sale of cannabis at the state level, cannabis continues to be categorized as a controlled substance under the CSA and, as such, cultivation, distribution, sale and possession of cannabis violates federal law in the United States. The inconsistency between federal and state laws and regulations may result in a loss of the value of our investments and alliances in these businesses.
While state regulation in certain U.S. states may take a permissive approach to medical and/or recreational use of cannabis, the CSA may still be enforced by U.S. federal law enforcement officials against individuals and companies operating in those states for activity that is legal under state law. If the United States Department of Justice opted to pursue a policy of aggressively enforcing U.S. federal law against financiers or equity owners of cannabis-related businesses, then the Corporation and/or TerrAscend Growth, could face (i) seizure of their cash and other assets used to support or derived from their business activities; and/or (ii) the arrest of its employees, directors, officers, managers and/or investors, who could face charges of ancillary criminal violations of the CSA for aiding and abetting and conspiring to violate the CSA by virtue of providing financial support to state- licensed or permitted cultivators, processors, distributors, and/or retailers of cannabis.
In the event of an aggressive enforcement policy, the United States Department of Justice could allege that we and the Board, and potentially our Shareholders, “aided and abetted” violations of U.S. federal law. In these circumstances, we may lose our entire investment and directors, officers and/or our Shareholders may be required to defend any criminal charges against them at their own expense and, if convicted, be sent to federal prison. Violations of any federal laws and regulations could result in significant fines, penalties, administrative sanctions, convictions or settlements arising from civil proceedings initiated by either the federal government or private citizens, or criminal charges, including, but not limited to, disgorgement of profits, cessation of business activities or divestiture. This could have a material adverse effect on us, including our reputation and ability to conduct business, the proposed
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listing of Common Shares on the TSX, or other exchanges, our financial position, operating results, profitability or liquidity or the market price of our listed securities. Overall, an investor’s contribution to and involvement in our activities may result in federal civil and/or criminal prosecution, including forfeiture of his or her entire investment.
The exercise of Dissent Rights could impact the Corporation’s liquidity.
If a large number of shareholders exercise Dissent Rights, it will limit the capital available to the Corporation to execute its business strategy.
DISSENT RIGHTS
The following is only a summary of the Dissent Rights provisions of the OBCA, which are technical and complex. A copy of section 185 of the OBCA is attached as Appendix 3 to this Circular. It is recommended that any shareholder wishing to exercise Dissent Rights seek legal advice as the failure to comply strictly with the provisions of the OBCA may result in the loss or unavailability of the Dissent Rights. Dissent Rights are only available to Shareholders with respect to the Transaction Resolution, and not other matters of business to be conducted at the Meeting.
Each registered shareholder will have the right to dissent and, if the Transaction Resolution is adopted, to have his, her or its shares cancelled in exchange for a cash payment from TerrAscend equal to the fair value of his, her or its shares as of the close of business on the day before the Meeting in accordance with the provisions of section 185 of the OBCA. In order to validly exercise Dissent Rights, any such registered shareholder must not vote any shares in respect of which Dissent Rights have been exercised in favour of the Transaction Resolution, must provide TerrAscend with written objection to the Transaction Resolution by 1:00 p.m. (Eastern Time) on June 20, 2023, or by 1:00 p.m. (Eastern Time) on the date that is two business days immediately prior to any adjournment or postponement of the Meeting, and must otherwise strictly comply with the dissent procedures provided in section 185 of the OBCA. A non-registered shareholder who wishes to exercise Dissent Rights must arrange for the registered shareholder(s) holding its shares to deliver the Dissent Notice.
Registered shareholders have the right to dissent to the Transaction Resolution in the manner provided in section 185 of the OBCA. The following summary is qualified in its entirety by reference to the provisions of section 185 of the OBCA. If for any reason, a Dissenting Shareholder is not entitled to be paid fair value, such Dissenting Shareholder shall be deemed to have voted in favor of the Transaction Resolution as a non-dissenting holder of shares.
A Dissenting Shareholder may be entitled to be paid by TerrAscend the fair value of the shares held by such Dissenting Shareholder determined as of the close of business on the day before the Meeting. There can be no assurance as to the fair value of the shares.
Eligible shareholders may exercise Dissent Rights only in respect of the shares registered in their name. In addition, a registered shareholder may exercise Dissent Rights only with respect to all shares held by that shareholder on behalf of any one beneficial owner. In many cases, the shares beneficially owned by a non-registered shareholder are registered either:
Accordingly, a non-registered shareholder will not be entitled to exercise Dissent Rights directly (unless the shares are re-registered in the non-registered shareholder’s name). A non-registered shareholder who wishes to exercise Dissent Rights should immediately contact the Intermediary with whom the non-registered shareholder deals in respect of its shares and either:
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A registered shareholder who wishes to exercise Dissent Rights in respect of the Transaction Resolution must provide a written objection to the Transaction Resolution (a “Dissent Notice”) to TerrAscend Corp., legal@terrascend.com Attention: Chief Legal Officer prior to 1:00 p.m. (Eastern Time) on June 20, 2023, or by 1:00 p.m. (Eastern Time) on the date that is two business days immediately prior to any adjournment or postponement of the Meeting. The filing of a Dissent Notice does not deprive a registered shareholder of the right to vote at the Meeting; however, a registered shareholder who has submitted a Dissent Notice and who votes in favour of the Transaction Resolution will no longer be considered a Dissenting Shareholder with respect to the shares voted in favour of the Transaction Resolution. The execution or exercise of a proxy or a vote against the Transaction Resolution or an abstention will not constitute a Dissent Notice, but a registered shareholder need not vote its shares against the Transaction Resolution in order to exercise Dissent Rights.
Similarly, the revocation of a proxy conferring authority on the proxyholder to vote in favor of the Transaction Resolution does not constitute a Dissent Notice; however, any proxy granted by a registered shareholder who intends to dissent, other than a proxy that instructs the proxyholder to vote against the Transaction Resolution, should be validly revoked in order to prevent the proxyholder from voting such shares in favour of the Transaction Resolution and thereby causing the registered shareholder to forfeit such registered shareholder’s right to dissent.
TerrAscend is required, within 10 days after the adoption of the Transaction Resolution, to notify each Dissenting Shareholder that the Transaction Resolution has been adopted, but such notice is not required to be sent to any registered shareholder who voted in favour of the Transaction Resolution or who has withdrawn such registered shareholder’s Dissent Notice.
A registered shareholder who wishes to exercise Dissent Rights must, within 20 days after receipt of notice that the Transaction Resolution has been adopted, or, if such registered shareholder does not receive such notice, within 20 days after the registered shareholder learns that the Transaction Resolution has been adopted, send to TerrAscend a written notice (a “Payment Demand”) containing the registered shareholder’s name and address, the number of shares in respect of which the registered shareholder dissented, and a demand for payment of the fair value of such shares. Within 30 days after a Payment Demand, the registered shareholder must send to TerrAscend’s Transfer Agent, Odyssey Trust Company at Trader’s Bank Building, 702 – 67 Yonge Street, Toronto, Ontario M5E 1J8, the share certificates representing the shares in respect of which the registered shareholder has dissented. A registered shareholder who fails to send the share certificates representing the shares in respect of which the registered shareholder has dissented forfeits such Shareholder’s Dissent Right for such shares. TerrAscend or its Transfer Agent will endorse on share certificates received from a registered shareholder exercising a Dissent Right a notice that the registered shareholder is a Dissenting Shareholder and will forthwith return the share certificates to the Dissenting Shareholder.
Upon filing a Dissent Notice that is not withdrawn prior to the termination of the Meeting, provided that the Investment does close, a Dissenting Shareholder will cease to have any rights as a holder of shares, other than the right to be paid the fair value of its shares, unless:
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in all of which cases the Dissenting Shareholder’s rights as a holder of shares will be reinstated.
TerrAscend is required, not later than seven days after the later of the date of closing the Investment or the date on which TerrAscend received the Payment Demand of a Dissenting Shareholder, to send to each Dissenting Shareholder who has sent a Payment Demand to it an Offer to Pay for its shares in an amount considered by the Board to be the fair value of the shares, accompanied by a statement showing the manner in which the fair value was determined. Every Offer to Pay must be on the same terms. The amount specified in the Offer to Pay which has been accepted by a Dissenting Shareholder will be paid by TerrAscend within 10 days after the acceptance by the Dissenting Shareholder of the Offer to Pay, but any such Offer to Pay lapses if TerrAscend does not receive an acceptance thereof within 30 days after the Offer to Pay has been made.
If TerrAscend fails to make an Offer to Pay or if a Dissenting Shareholder fails to accept an offer that has been made, TerrAscend may, within 50 days after the closing date of the Investment or within such further period as the Court may allow, apply to the Court to fix a fair value for the shares of Dissenting Shareholders. If TerrAscend fails to apply to the Court, a Dissenting Shareholder may apply to the Court for the same purpose within a further period of 20 days or within such further period as the Court may allow. A Dissenting Shareholder is not required to give security for costs in such an application.
Upon an application to the Court, all Dissenting Shareholders whose shares have not been paid for by TerrAscend will be joined as parties and bound by the decision of the Court, and TerrAscend will be required to notify each affected Dissenting Shareholder of the date, place and consequences of the application and of the Dissenting Shareholder’s right to appear and be heard in person or by counsel. Upon any such application to the Court, the Court may determine whether any person is a Dissenting Shareholder who should be joined as a party, and the Court will then fix a fair value for the shares of all Dissenting Shareholders. The final order of a Court will be rendered against TerrAscend in favor of each Dissenting Shareholder and for the amount of the fair value of such Dissenting Shareholder’s shares as fixed by the Court. The Court may, in its discretion, allow a reasonable rate of interest on the amount payable to each Dissenting Shareholder from the date of closing the Investment until the date of payment.
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EXECUTIVE OFFICERS
Our executive officers, and their respective ages as of the date hereof, are as follows:
Ziad Ghanem: Ziad Ghanem has served as our President since January 2022 and as our Chief Executive Officer since March 2023. From January 2022 to March 2023, Mr. Ghanem served as our Chief Operating Officer. Mr. Ghanem served as President of all markets at Parallel, a privately held, vertically integrated, multi-state cannabis operator in the U.S, from November 2020 to December 2021. Mr. Ghanem has also previously served in senior leadership roles at Walgreens Boots Alliance. Mr. Ghanem received a Doctor of Pharmacy from the University of Houston.
Keith Stauffer: Keith Stauffer has served as our Chief Financial Officer since April 2020. Mr. Stauffer previously served as Senior Vice President of Finance and Chief Financial Officer of the Global Consumer Beauty Division at Coty, Inc. from August 2018 to March 2020. From January 2008 to May 2018, Mr. Stauffer worked at The Hershey Company, most recently as Vice President of Finance and Chief Financial Officer for Hershey’s International business. Prior to working at The Hershey Company, Mr. Stauffer held various finance positions, both domestically and internationally, at Dell Technologies and Proctor & Gamble.
Lynn Gefen: Lynn Gefen has served as our Chief Legal Officer and Corporate Secretary since May 2022. From July 2014 to May 2022, Ms. Gefen served as Deputy General Counsel, Chief Risk and Compliance Officer and Assistant Secretary at HomeServe, a publicly traded, independent provider of home repair service solutions. Prior to her role at HomeServe, Ms. Gefen worked for Diageo North America, an alcoholic beverage company, from January 2011 to June 2014 and was Associate General Counsel, Chief Compliance Officer and Assistant Secretary at Citrix Systems, a technology company, from 2000-2009. Ms. Gefen received a J.D. from American University and a Bachelor of Arts from the University of Florida.
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EXECUTIVE COMPENSATION
As an “emerging growth company,” TerrAscend is required to provide a Summary Compensation Table and an Outstanding Equity Awards at Fiscal Year End Table, as well as limited narrative disclosures regarding executive compensation for our last completed fiscal year. These reporting obligations extend only to our “named executive officers”, who are the individuals who (i) served as our principal executive officer, (ii) our two other most highly compensated executive officers other than the principal executive officer, and (iii) up to two additional individuals for whom disclosure would have been required but for the fact that the individual was not serving as one of our executive officers during the last completed fiscal year (the “Named Executive Officers” or “NEOs”).
Each of the NEOs are employed in their respective NEO role for an indefinite period time, in accordance with each NEO’s employment agreement as outlined in “Compensation of Named Executive Officers”. All arrangements for NEOs are as outlined in their respective employment agreement and as otherwise determined by the Board.
For the financial year ended December 31, 2022, the Corporation’s Named Executive Officers were:
Name |
Age |
Position |
Jason Wild |
50 |
Executive Chairman(1) |
Ziad Ghanem |
45 |
President and Chief Executive Officer(2) |
Keith Stauffer |
53 |
Chief Financial Officer |
Lynn Gefen |
51 |
Chief Legal Officer and Corporate Secretary(3) |
________________
(1) Jason Wild, as Executive Chairman, performed certain functions of an executive officer until the Corporation appointed Ziad Ghanem as President and Chief Operating Officer on January 5, 2022.
(2) Mr. Ghanem was appointed President and Chief Operating Officer on January 5, 2022 and was promoted to President and Chief Executive Officer on March 29, 2023.
(3) Ms. Gefen was appointed Chief Legal Officer and Corporate Secretary on May 23, 2022.
The following disclosure outlines the Corporation’s pay decisions in 2022 for the NEOs and directors and provides context for the data presented in the accompanying compensation tables.
Compensation Philosophy and Goals
The Board makes decisions regarding all forms of compensation, including salaries, bonuses and equity incentive compensation, paid to the Corporation’s CEO, CFO and other executive officers, as applicable, as well as approves corporate goals and objectives relevant to their compensation. The Board also administers employee incentive compensation, including the Corporation’s Stock Option Plan and RSU Plan.
The Corporation’s compensation practices are designed to retain, motivate and reward its executive officers and directors for their performance and contribution to the long-term success of the Corporation. The Board seeks to compensate executive officers by combining short-term and long-term cash and equity incentives. It also seeks to reward the achievement of corporate and individual performance objectives and to align executive officers’ incentives with the Corporation’s performance. The Corporation seeks to tie individual goals to the area of the executive officer’s primary responsibility. These goals may include the achievement of specific financial, strategic or business development goals. Corporate performance goals are tied to the Corporation’s financial performance during the applicable financial year.
In order to achieve the Corporation’s growth objectives, attracting and retaining the right team members is critical. A key part of this is providing compensation that attracts high performers and compensates them for their continued achievements. Employee participation in the Stock Option Plan and the RSU Plan drives employee retention, entrepreneurial behavior and share ownership. The Corporation’s communication of clear and concrete criteria and process for merit-based increases and bonuses also motivates its employees to achieve individual and corporate goals.
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Summary Compensation Table
The following table sets out all compensation paid, payable, awarded, granted, given, or otherwise provided, directly or indirectly, by the Corporation to each NEO who performed such functions, in any capacity, during the financial years ended December 31, 2022 and December 31, 2021. All NEOs were paid in US dollars.
Name and principal position |
Year |
Salary ($) |
Bonus ($) |
Stock awards ($)(4) |
Option awards ($) |
Value of all other compensation ($) |
Total ($) |
Jason Wild(1) Executive Chairman |
2022 |
Nil |
Nil |
Nil |
Nil |
500,000 |
500,000 |
2021 |
Nil |
Nil |
Nil |
1,762169 |
516,216 |
2,278,385 |
|
Ziad Ghanem (2) |
2022 |
412,468 |
170,000 |
166,500 |
1,857,684 |
Nil
|
2,606,652 |
Keith Stauffer(3) |
2022 |
404,266
|
145,600 |
421,312 |
106,567 |
Nil |
1,077,745 |
2021 |
400,000
|
137,989 |
140,299 |
Nil |
Nil |
678,288 |
|
Lynn Gefen |
2022 |
191,441
|
79,068 |
Nil |
1,167,122 |
Nil |
1,437,631 |
Compensation of Named Executive Officers
In order to achieve the Corporation’s executive compensation objectives, the compensation paid to NEOs consists primarily of three elements: base salary, annual bonuses and long-term equity incentives. The Board conducts reviews with respect to officer compensation at least once a year.
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Compensation for executive officers is established based on the scope of their responsibilities and their prior relevant experience, taking into account compensation paid by other companies in the industry for similar positions and the overall market demand for such executives. The Board, through the Compensation Committee, reviews the public disclosure available for other comparable cannabis companies to assist in determining the competitiveness of the base salary, bonuses, benefits and stock options paid to the executive officers of the Corporation, to ensure that the executive officer’s total compensation is in line with the Corporation’s overall total rewards philosophy. The Compensation Committee may, but is not obligated to, benchmark compensation to members of its peer group or similar companies as the Corporation matures.
Base salaries are reviewed annually and are increased for merit reasons, based on the executive’s success in meeting or exceeding individual objectives and/or for market competitiveness. Additionally, base salaries can be adjusted as warranted throughout the year to reflect promotions or other changes in the scope or breadth of an executive’s role or responsibilities, as well as for market competitiveness. See section below entitled “Employment, Consulting and Management Agreements” for details related to each NEO.
(ii) Bonus Plans
The Corporation’s employee compensation program includes eligibility for annual incentive cash bonuses. Parameters for NEO bonuses are set out in each executive’s employment agreement and the Corporation’s annual incentive plan (“AIP”). See section below entitled “Employment, Consulting and Management Agreements” for details related to each NEO. Each NEO has defined performance objectives determined with consideration to the role of the executive. Bonuses paid pursuant to the AIP are based on financial and non-financial results of the Corporation. Financial parameters used to determine the financial performance of the Corporation are the revenue and EBITDA of the Corporation and revenues and EBITDA at the divisional level each as compared with the budget. For each of these parameters and levels, there are minimum and maximum expectations annually. In 2022, bonus determinations were based largely on the financial performance of the Corporation. However, there was recognition by the Board, through the Compensation Committee, that NEOs should be compensated based on progress for strategic initiatives to be implemented beyond the current fiscal year, in addition to the financial performance of the Corporation. This permits the Corporation to acknowledge contributions which will have delayed financial value. As formally introduced into the Corporation’s AIP on April 25, 2022, NEOs are assessed on the forward-looking strategic initiatives. This has been reviewed and subsequently detailed further by the Compensation Committee at the end of 2022. As a result, for 2023, NEO bonuses have the following breakdown: 60% is based on the Corporation’s performance and 40% is based on progress for strategic initiatives for the future. The Compensation Committee has discretion to adjust bonuses as they deem appropriate.
(iii) Long-Term Equity Incentives
The Corporation currently has in place a rolling 10% Stock Option Plan and an RSU Plan. See section below entitled “Stock Option Plan and RSU Plan” for a description of the Stock Option Plan and RSU Plan.
Stock Option Plan and RSU Plan
Stock Option Plan
The purpose of the Stock Option Plan is to (i) provide the Corporation with the advantages of the incentive inherent in equity ownership in the Corporation by directors, officers, consultants and key employees of the Corporation and its subsidiaries; (ii) create in such persons a proprietary interest in, and a greater concern for, the welfare and success of the Corporation; (iii) encourage such persons to remain with the Corporation and its subsidiaries; and (iv) attract employees, directors and consultants of the highest calibre by offering them an opportunity to share in any increase in value of the Common Shares resulting from their efforts.
The following is a summary of the Stock Option Plan and is qualified in its entirety by reference to the full text of the Stock Option Plan, as amended incorporating the Stock Option Plan Amendments, which is attached as Schedule “B”
50
of the Circular and available under the Corporation’s profile on SEDAR at www.sedar.com and on the SEC’s website at www.sec.gov.
The Corporation currently has in place a rolling 10% Stock Option Plan, pursuant to which approximately 20,111,246 Options were outstanding as of December 31, 2022. The Board is responsible for administering the Stock Option Plan.
The Stock Option Plan provides that the number of Common Shares that may be reserved for issuance upon the exercise of options to purchase Common Shares (and together with any other share compensation arrangement of the Corporation, including the RSU Plan) will not exceed (in the aggregate) 10% of the outstanding Common Shares on each date on which the Option or other award, as applicable, is granted (the “Grant Date”) (including any Common Shares issuable on exchange of the outstanding proportionate voting shares and exchangeable shares of the Corporation, but otherwise on a non-diluted basis). The Corporation is required, at all times during the term of the Stock Option Plan, to reserve and keep available the number of Common Shares necessary to satisfy the requirements of the Stock Option Plan.
The number of Common Shares reserved for issuance to any one person under an Option granted pursuant to the Stock Option Plan, when combined with the number of Common Shares reserved for issuance under all awards granted within the one-year period prior to the Grant Date under all other share compensation plans, including the Stock Option Plan and the RSU Plan, may not exceed 5% of the issued and outstanding Common Shares at the Grant Date (including any Common Shares issuable on exchange of the outstanding proportionate voting shares and exchangeable shares of the Corporation, but otherwise on a non-diluted basis), unless the Corporation has obtained disinterested shareholder approval. The number of Common Shares reserved for issuance under an award granted pursuant to the Stock Option Plan to any (i) consultant, or (ii) party providing investor relation services, when combined with the number of Common Shares reserved for issuance under all Options granted within the one-year period prior to the Grant Date to (i) all consultants, or (ii) all parties providing investor relation services, respectively, cannot exceed 2% of the issued and outstanding Common Shares on the Grant Date (including any Common Shares issuable on exchange of the outstanding proportionate voting shares and exchangeable shares of the Corporation, but otherwise on a non-diluted basis).
Unless disinterested shareholder approval is obtained, the number of Common Shares that may be reserved for issuance to insiders pursuant to the grant of Options under the Stock Option Plan and under any other share compensation arrangement, including the RSU Plan, will not exceed, in the aggregate, 10% of the outstanding Common Shares (including any Common Shares issuable on exchange of the outstanding proportionate voting shares and exchangeable shares of the Corporation, but otherwise on a non-diluted basis) at any point in time.
Unless disinterested shareholder approval is obtained, an Option may only be granted to an insider under the Stock Option Plan if the number of Common Shares reserved for issuance under that Option, when combined with the number of Common Shares reserved for issuance under awards granted within the one-year period before the Grant Date by the Corporation to insiders under all other share compensation plans, including the Stock Option Plan and the RSU Plan, does not exceed, in the aggregate, 10% of the outstanding Common Shares on the Grant Date (including any Common Shares issuable on exchange of the outstanding proportionate voting shares and exchangeable shares of the Corporation, but otherwise on a non-diluted basis).
Options to purchase Common Shares granted under the Stock Option Plan will have an exercise price not less than the “fair market value” of a Common Share on the Grant Date, being the five (5) day volume weighted average price of the Common Shares based on the Grant Date of the Option. The exercise price, term and vesting of options to purchase Common Shares shall otherwise be as approved by the Board. Unless otherwise determined by the Board, options to purchase Common Shares typically vest and become exercisable at a rate of 25% on each of the first four anniversary dates from the date of grant.
Common Shares which have been issued on the exercise of an option will again be available for grants under the Stock Option Plan, and will be considered to be part of the pool of Common Shares available for options to purchase Common Shares under the Stock Option Plan. Any Common Share subject to an option granted under the Stock Option Plan that expires or terminates without having been exercised shall again be available for a grant of options under the Stock Option Plan. The term of the Options to purchase Common Shares granted under the Stock Option Plan shall not exceed ten years from the date of grant. Options granted pursuant to the Stock Option Plan are non-transferable.
51
RSU Plan
The purpose of the RSU Plan is to: (i) promote a further alignment of interests between directors, officers, consultants and key employees of the Corporation, or a subsidiary, and the shareholders of the Corporation; (ii) associate a portion of such persons’ compensation with the returns achieved by shareholders of the Corporation; and (iii) attract and retain such directors, officers, consultants and key employees with the knowledge, experience and expertise required by the Corporation.
The following information is a summary of the material terms of the Corporation’s RSU plan and is qualified in its entirety by reference to the full text of the RSU Plan which is attached as Schedule “C” to the management information circular of the Corporation dated April 27, 2023, which is available under the Corporation’s profile on SEDAR at www.sedar.com and on the SEC’s website at www.sec.gov.
The Corporation currently has in place a RSU Plan, pursuant to which 415,640 RSUs were outstanding as of December 31, 2022. The Board is responsible for administering the RSU Plan.
Pursuant to the RSU Plan, the number of Common Shares that may be reserved for issuance under the RSU Plan and under any other share compensation plans of the Corporation, including the Stock Option Plan, will not exceed (in the aggregate) 10% of the outstanding Common Shares on the grant date (including any Common Shares issuable on exchange of the outstanding proportionate voting shares and exchangeable shares of the Corporation, but otherwise on a non-diluted basis). The Corporation is required, at all times during the term of the RSU Plan, to reserve and keep available the number of Common Shares necessary to satisfy the requirements of the RSU Plan.
The number of Common Shares reserved for issuance to any one person pursuant to the grant of awards under the RSU Plan, when combined with the number of Common Shares reserved for issuance under all awards granted within the one-year period prior to the Grant Date under all other share compensation plans, including the Stock Option Plan and the RSU Plan, may not exceed 5% of the issued and outstanding Common Shares at the Grant Date (including any Common Shares issuable on exchange of the outstanding proportionate voting shares and exchangeable shares of the Corporation, but otherwise on a non-diluted basis), unless the Corporation has obtained disinterested shareholder approval. The number of Common Shares reserved for issuance under an award granted pursuant to the RSU Plan to any: (i) consultant, or (ii) party providing investor relation services, when combined with the number of Common Shares reserved for issuance under all awards granted under the RSU Plan within the one-year period prior to the Grant Date to (i) all consultants, or (ii) all parties providing investor relation services, respectively, cannot exceed 2% of the issued and outstanding Common Shares on the Grant Date (including any Common Shares issuable on exchange of the outstanding proportionate voting shares and exchangeable shares of the Corporation, but otherwise on a non-diluted basis).
Unless disinterested shareholder approval is obtained, the number of Common Shares that may be reserved for issuance to insiders pursuant to the grant of awards under the RSU Plan and under any other share compensation arrangement, including the Stock Option Plan, will not exceed, in the aggregate, 10% of the outstanding Common Shares (including any Common Shares issuable on exchange of the outstanding proportionate voting shares and exchangeable shares of the Corporation, but otherwise on a non-diluted basis) at any point in time.
Unless disinterested shareholder approval is obtained, an award under the RSU Plan may only be granted to an insider under the RSU Plan if the number of Common Shares reserved for issuance under that award, when combined with the number of Common Shares reserved for issuance under awards granted within the one-year period before the Grant Date by the Corporation to insiders under all other share compensation plans, including the Stock Option Plan and the RSU Plan, does not exceed, in the aggregate, 10% of the outstanding Common Shares on the Grant Date (including any Common Shares issuable on exchange of the outstanding proportionate voting shares and exchangeable shares of the Corporation, but otherwise on a non-diluted basis).
Any vested RSUs will be settled in the form of Common Shares as provided in the applicable award agreement. Unless otherwise determined by the Board, RSUs typically vest over a four year period and are settled on each of the first four anniversary dates from the date of grant. Awards granted under the RSU Plan will have a market value on any given date of the closing price of the Common Shares on any exchange the Corporation is then listed on the trading
52
day prior to the relevant date. The term, vesting and any performance conditions applicable to an award of RSUs shall be as approved by the Board. RSUs awarded pursuant to the RSU Plan are non-transferable.
Employment, Consulting and Management Agreements
As of the date of this Circular, the Corporation has employment agreements with each of its Named Executive Officers, Ziad Ghanem, its President and Chief Executive Officer (“CEO”) (who joined the Corporation effective as of January 5, 2022 as its President and Chief Operating Officer, and subsequently promoted to CEO on March 29, 2023, in addition to continuing in his existing role as President), Keith Stauffer, its Chief Financial Officer and Lynn Gefen, its Chief Legal Officer (who joined the Corporation effective May 23, 2022). Such employment agreements provide for, among other things, the continuation of the employment for an indefinite term, subject to termination as provided for in the employment agreements.
Employment Agreement – Ziad Ghanem – President and CEO
Pursuant to an employment agreement dated January 10, 2022 (“January 2022 Employment Agreement”). Mr. Ghanem was entitled to an annual salary of $425,000 and is eligible to participate in a bonus plan whereby he will have an annual bonus opportunity of 40% of his annual salary payable in cash, with the full amount guaranteed in the first year, and long term incentive (“LTI”) in the form of RSUs of up to 40% of his annual salary pursuant to the Corporation’s Share Unit Plan and as determined by the Board from time to time. Mr. Ghanem received a one-time grant of 30,000 RSUs and 325,000 stock options, subject to the Corporation’s policies and received a further grant of 350,000 stock options on September 23, 2022. In the event that the Corporation terminates Mr. Ghanem’s employment without cause, Mr. Ghanem would be entitled to: (i) continued pay and benefits for a twelve months period, less applicable deductions (“Severance Pay”); and (ii) the accelerated vesting of unvested options (granted subject to the provisions of the Stock Option Plan) on a pro-rata basis. Pursuant to the terms of his employment agreement, Mr. Ghanem agreed that he shall not engage in any activity which is in competition with the Corporation during his employment and for a period of twelve months thereafter. Mr. Ghanem is also precluded from soliciting the Corporation’s customers or employees for a twelve-month period following his last day of active employment.
On March 29, 2023, the Board of Directors promoted Mr. Ghanem to President and Chief Executive Officer. In connection with his appointment, the Corporation, entered into an executive employment agreement with Mr. Ghanem (the “New Employment Agreement”), dated and effective as of March 29, 2023. Pursuant to the New Employment Agreement, Mr. Ghanem will receive an annual base salary of US$500,000 and will be eligible, among other things: (i) to receive an annual discretionary performance bonus of 75% of his then-current base salary, (ii) to continue participating in employee benefit programs and plans and (iii) to receive LTI in the form of RSUs of up to 100% of his then-current base salary pursuant to the Corporation’s Share Unit Plan and as determined by the Board from time to time. In the event that the Corporation terminates Mr. Ghanem’s employment without cause, Mr. Ghanem would be entitled to: (i) continued pay and benefits for a twelve months period, less applicable deductions (“Severance Pay”); and (ii) the accelerated vesting of unvested options (granted subject to the provisions of the Stock Option Plan) on a pro-rata basis.
In the event of a change of control, 100% of Mr. Ghanem’s unvested options and RSUs will accelerate and vest immediately. In addition, if Mr. Ghanem’s employment is terminated without cause or for good reason within 12 months following a change of control, Mr. Ghanem will be entitled to two times his Severance Pay and, if not yet paid, his full bonus for the prior calendar year and full bonus for the current calendar year.
Employment Agreement – Keith Stauffer – Chief Financial Officer
Pursuant to an employment agreement dated April 22, 2020, and as subsequently amended, Mr. Stauffer is entitled to an annual salary of $416,000 and is eligible to participate in a bonus plan whereby he will have an annual bonus opportunity of 50% of his annual salary, payable in cash or RSUs that will vest immediately upon award, and long term incentive of up to 100% of his annual salary payable in RSUs. In the event of a change of control (as defined in the employment agreement), Mr. Stauffer would be entitled to the accelerated vesting of unvested options (granted subject to the provisions of the Stock Option Plan). In the event that the Corporation terminates Mr. Stauffer’s employment without cause, Mr. Stauffer would be entitled to: (i) a lump sum payment of an amount equal to six months’ annual salary (nine months in the case of termination related to a non-performance issue), less applicable
53
deductions; and (ii) the accelerated vesting of unvested options (granted subject to the provisions of the Stock Option Plan) on a pro-rata basis. Pursuant to the terms of his employment agreement, Mr. Stauffer agreed that he shall not engage in any activity which is in competition with the Corporation during his employment and for a period of twelve months thereafter. Mr. Stauffer is also precluded from soliciting the Corporation’s customers or employees for a twelve-month period following his last day of active employment. In April 2023, the Board of Directors in its discretion increased Mr. Stauffer’s annual base salary to $433,000, effective April 3rd, 2023.
Employment Agreement – Lynn Gefen – Chief Legal Officer and Corporate Secretary
Pursuant to an employment agreement dated May 23, 2023, Ms. Gefen is entitled to an annual salary of $325,000 and is eligible to participate in a bonus plan whereby she will have an annual bonus opportunity of 40% of her annual salary payable in cash, and long term incentive in the form of RSUs of up to 40% of her annual salary. In 2022, Ms. Gefen received 275,000 stock options on May 25, 2022 and 281,250 on September 23, 2022, subject to the Corporation’s policies. In the event that the Corporation terminates Ms. Gefen’s employment without cause, Ms. Gefen would be entitled to: (i) continued pay and benefits for a twelve (12) month period, less applicable deductions; and (ii) the accelerated vesting of unvested options (granted subject to the provisions of the Stock Option Plan) on a pro-rata basis. Pursuant to the terms of her employment agreement, Ms. Gefen agreed that she shall not engage in any activity which is in competition with the Corporation during her employment and for a period of twelve months thereafter. Ms. Gefen is also precluded from soliciting the Corporation’s customers or employees for a twelve-month period following her last day of active employment. In April 2023, the Board of Directors in its discretion increased Ms. Gefen’s annual base salary to $350,000, effective April 3rd, 2023.
Outstanding Equity Awards at 2022 Fiscal Year-End
The following table reflects information regarding outstanding equity-based awards that were held by our NEOs as of December 31, 2022.
Outstanding Equity Awards |
|
|
||||||||||||||||
|
|
Option Awards |
|
|
|
Stock Awards |
|
|
||||||||||
Named Executive Officer |
|
Number of |
|
Number of |
|
Equity |
|
Option |
|
Option |
|
Number |
|
Market |
|
Equity |
|
Equity incentive |
Jason Wild |
|
1,000,000 50,000 |
|
Nil 150,000(1) |
|
Nil Nil |
|
3.16 10.79 |
|
6/19/23 3/25/31 |
|
35,885 Nil |
|
40,550 Nil |
|
Nil Nil |
|
Nil Nil |
Ziad Ghanem
|
|
Nil Nil |
|
325,000(1) 350,000(1) |
|
Nil Nil |
|
5.43 1.47 |
|
1/5/32 9/23/32 |
|
30,000 Nil |
|
33,900 Nil |
|
Nil Nil |
|
Nil Nil |
Keith Stauffer |
|
666,666 Nil |
|
333,334(2) 100,000(1) |
|
Nil Nil |
|
2.11 1.47 |
|
4/27/25 9/23/32 |
|
8,669 75,912 |
|
9,796 85,781 |
|
Nil Nil |
|
Nil Nil |
Lynn Gefen |
|
Nil Nil |
|
275,000(1) 281,250(1) |
|
Nil Nil |
|
3.90 1.32 |
|
5/25/32 9/23/32 |
|
Nil Nil |
|
Nil Nil |
|
Nil Nil |
|
Nil Nil |
(1) Such Stock Options vest annually over four (4) years from the grant date.
(2) Such Stock Options vest annually over three (3) years from the grant date.
Pension Benefits
The Corporation does not have a pension plan that provides for payments or benefits to the NEOs or directors at, following, or in connection with retirement.
Directors’ and Officers’ Liability Insurance
The Corporation holds director and officer liability insurance in the aggregate amount of $10,000,000, subject to a
54
$1,000,000 deductible payable by the Corporation. The annual premium paid by the Corporation for this coverage is $1,267,266 for the 13 month period ended May 5, 2023.
No indemnification under section 136 of the OBCA was paid or became payable in 2022.
STATEMENT OF DIRECTOR COMPENSATION
Director Compensation Table
The following table sets forth a summary of the compensation paid to TerrAscend’s non-employee directors during 2022. Mr. Wild was an executive officer of the company through January 5, 2022, after which date Mr. Wild continued to serve as a director of the Corporation. Mr. Wild did not receive any additional compensation for his services as an executive officer.
Name |
Stock Awards ($)(1) (2) |
Total ($) |
Jason Wild(3) |
500,000 |
500,000 |
Craig Collard |
313,500 |
313,500 |
Kara DioGuardi |
166,600 |
166,600 |
Ira Duarte(4) |
Nil |
Nil |
Lisa Swartzman |
250,500 |
250,500 |
Ed Schutter |
252,000 |
252,000 |
(1) The amounts in the Stock Awards column reflect the grant date fair value of each RSU award granted during the year ended December 31, 2022, computed in accordance with ASC Topic 718. This calculation assumes that the director will perform the requisite service for the award to vest in full as required by SEC rules. These amounts do not reflect the actual economic value that will be realized by the director upon vesting of the RSUs or the sale of the common stock underlying such RSUs.
(2) The table below shows the aggregate number of stock awards outstanding for each of our directors who is not a named executive officer, as of December 31, 2022:
(3) Payments for Mr. Wild’s service as a non-employee director for the portion of 2022 subsequent to the cessation of his employment with the Corporation is set forth in the Summary Compensation Table. The outstanding equity awards held by Mr. Wild are set forth in the Outstanding Equity Awards at December 31, 2022 Fiscal Year-End.
(4) Ms. Duarte joined the Board in December 2022 but did not receive any grants in compensation for her service until 2023. Accordingly, Ms. Duarte’s equity compensation is considered 2023 compensation and is not included in this table.
________________
Compensation of Directors
The Compensation Committee conducts reviews with respect to director compensation at least once a year. In 2022, the annual base compensation for directors was an aggregate of $200,000 per director, paid entirely in RSUs (or the pro rata amount thereof based on time served in a year). Additional compensation for participation in the committees of the Board is as follows (all of which shall be paid in RSUs): an additional remuneration of $19,500 for the Audit Committee Chair, $7,500 for Audit Committee members, $12,000 for the Compensation Committee Chair, and $6,000 for Compensation Committee members. The Corporation has yet to determine compensation for the Nominating and Corporation Governance Committee. The Chair (or Executive Chair) of the Board is paid an additional $300,000 (in RSUs). Directors are issued RSUs on the date of the Meeting, with each RSU vesting on the last calendar day of the year. Additionally, all directors are reimbursed for the out-of-pocket expenses related to their attendance at Board and
55
committee meetings.
For more information regarding the Corporation’s pay decisions in 2022 please see section above entitled “Compensation Philosophy and Goals.”
SECURITIES AUTHORIZED FOR ISSUANCE UNDER EQUITY COMPENSATION PLANS
The following table sets out certain details as at December 31, 2022 with respect to the Stock Option Plan and the RSU Plan, being the sole equity compensation plans pursuant to which equity securities of the Corporation are authorized for issuance. As of December 31, 2022, none of the equity based awards have been approved by the Shareholders of the Corporation. A description of the Stock Option Plan and RSU Plan can be found in the section above entitled “Stock Option Plan and RSU Plan”.
Plan |
Number of securities to be issued upon exercise of outstanding options, warrants and rights (a) |
Weighted-average exercise price of outstanding options, warrants and rights |
Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a)(c)) (1) |
Stock Option Plan |
20,111,246 |
$3.63 |
|
RSU Plan |
415,640 |
N/A |
|
Equity Compensation plans not approved by security holders |
0 |
N/A |
|
INDEBTEDNESS OF DIRECTORS AND EXECUTIVE OFFICERS
As of the date hereof, none of the current or former directors, executive officers or employees of the Corporation or any of its subsidiaries is indebted to the Corporation, and, as at the date hereof, the indebtedness, if any, of such persons to other entities is not the subject of a guarantee, support agreement, letter of credit or similar arrangement or understanding provided by the Corporation or any of its subsidiaries.
TRANSACTIONS WITH RELATED PERSONS
The following includes a summary of transactions since January 1, 2022 to which the Corporation has been a party, in which the amount involved in the transaction or proposed transaction is in excess of $120,000 and in which any of our directors, executive officers or, to our knowledge, any person or company who beneficially owns, controls or directs directly or indirectly, more than 5% of our voting securities or any associate or affiliate (including member of the immediate family) of any of the forgoing persons had or will have a direct or indirect material interest by way of beneficial ownership of securities or otherwise. Other than as described below, there have not been, nor are there
56
currently any proposed, transactions or series of similar transactions to which the Corporation has been or will be a party other than compensation arrangements, which include equity and other compensation, termination, or change in control and other arrangements, which are described under “Executive Compensation” and “Statement of Director Compensation".
Indemnification Agreements
The Corporation indemnifies its directors and officers to the fullest extent permitted by law pursuant to indemnification agreements entered between the Corporation and each of its directors and officers. Each indemnification agreement also provides that, on satisfaction of certain conditions, the Corporation will advance expenses incurred by a director or officer prior to the final disposition of any action or proceeding, and permit us to secure insurance on behalf of any officer or director for any liability arising out of his or her actions in that capacity regardless of whether the Corporation would otherwise be permitted to indemnify him or her under the provisions of Ontario law.
Related Party Transactions Policy
The Corporation adopted a related person transaction policy on January 25, 2023 that sets forth our procedures for the identification, review, consideration and approval or ratification of related person transactions. For purposes of our policy only, a related person transaction is a transaction, arrangement or relationship, or any series of similar transactions, arrangements or relationships, in which we and any related person are, were or will be participants in which the amount involved exceeds $120,000. Transactions involving compensation for services provided to us as an employee or director are not covered by this policy. A related person is any executive officer, director or beneficial owner of more than 5% of any class of our voting securities, including any of their immediate family members and any entity owned or controlled by such persons.
Under the policy, if a transaction has been identified as a related person transaction, including any transaction that was not a related person transaction when originally consummated, any transaction that was not initially identified as a related person transaction prior to consummation, our management must present information regarding the related person transaction to our Audit Committee, or, if Audit Committee approval would be inappropriate, to another independent body of our Board of Directors, for review, consideration and approval, ratification, or rejection. The presentation must include a description of, among other things, (a) all of the parties thereto, (b) the interests, direct or indirect, of any related person in the transaction, (c) a description of the purpose of the transaction, (d) all of the materials facts of the proposed transaction, including the proposed aggregate value of such transaction, or, in the case of indebtedness, that amount of principal that would be involved, (e) the benefits to the Corporation of the proposed
57
transaction, (f) if applicable, the availability of other sources of comparable products or services, (g) an assessment of whether the proposed transaction is on terms that are comparable to the terms available to or from, as the case may be, an unrelated third party or to employees generally, and (h) management’s recommendation with respect to the proposed transaction. In considering related person transactions, our Audit Committee, or other independent body of our Board of Directors, will take into account the relevant available facts and circumstances including, but not limited to:
• the risks, costs and benefits to us;
• the impact on a director's independence in the event that the related person is a director, immediate family member of a director or an entity with which a director is affiliated;
• the terms of the transaction;
• the availability of other sources for comparable services or products; and
• the terms available to or from, as the case may be, unrelated third parties or to or from employees generally.
The policy requires that, in determining whether to approve, ratify or reject a related person transaction, our Audit Committee, or other independent body of our Board of Directors, shall approve only those transactions that, in light of known circumstances, it determines in the good faith exercise of its discretion are in, or are not inconsistent with, our best interests and our stockholders' best interests.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS and management
The following table shows information regarding the beneficial ownership of the Common Shares as of the March 31, 2023 by:
• each Shareholder known by the Corporation to own beneficially 5% or more of our Common Shares;
• each of the Corporation’s directors;
• each of the Named Executive Officers; and
• all current directors and executive officers as a group.
Unless otherwise indicated, the address for each beneficial owner listed in the table below is, before May , 2023, c/o TerrAscend Corp., 3610 Mavis Road, Mississauga, Ontario L5C 1W2, and after May , 2023, c/o TerrAscend Corp., 77 City Centre Drive, East Tower - Suite 501, Mississauga, ON L5B 1M5.
Name and Address of |
Amount and Nature of Beneficial Ownership |
Percent of Class(1) |
5% Shareholders |
||
Jason Wild Michael Hermiz (3) 3663 Piccadilly Drive Rochester Hills, MI 48309 United States |
88,621,984(2)
14,044,680
|
32.27%
5.1% |
Current Directors and Named Executive Officers |
||
Craig Collard |
408,579 |
* |
Kara DioGuardi |
60,827 |
* |
Ira Duarte |
-- |
* |
58
Name and Address of |
Amount and Nature of Beneficial Ownership |
Percent of Class(1) |
Ed Schutter |
1,123,645 |
* |
Lisa Swartzman |
151,141 |
* |
Jason Wild |
88,621,984 |
32.27% |
Ziad Ghanem |
58,600 |
* |
Keith Stauffer |
58,670 |
* |
Lynn Gefen |
-- |
* |
All current directors and executive officers as a group (8 persons) |
90,433,446 |
32.93% |
________________
*Represents ownership of less than 1.0%.
Delinquent Section 16(a) Reports
Section 16(a) of the Exchange Act requires the Corporation’s directors and executive officers, and persons who own more than ten percent of a registered class of the Corporation’s equity securities, to file with the SEC initial reports of ownership and reports of changes in ownership of common stock and other equity securities of the Corporation. Officers, directors and greater than ten percent shareholders are required by SEC regulation to furnish the Corporation with copies of all Section 16(a) forms they file.
To the Corporation’s knowledge, based solely on a review of the copies of such reports filed on the SEC’s EDGAR system and written representations that no other reports were required, during the fiscal year ended December 31, 2022, all Section 16(a) filing requirements applicable to its officers, directors and greater than ten percent beneficial owners were complied with; except that (i) due to administrative error JW Asset Management LLC was late filing one Form 4 with respect to one transaction, (ii) Lisa Swartzman, a Director of the Corporation, was late filing one Form 4 with respect to one transaction, and (iii) Richard Mavrinac, a former Director of the Corporation, was late filing one Form 4 with respect to one transaction.
MANAGEMENT CONTRACTS
No management functions of the Corporation or its subsidiaries are performed to any substantial degree by a person other than the directors or executive officers of the Corporation or its subsidiaries.
CORPORATE GOVERNANCE
National Policy 58-201 – Corporate Governance Guidelines (“NP 58-201”) establishes corporate governance guidelines which apply to all public corporations. The Corporation has reviewed its own corporate governance practices in light of these guidelines. National Instrument 58-101 – Disclosure of Corporate Governance Practices mandates disclosure of corporate governance practices, which disclosure is set out below.
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Board of Directors
Pursuant to National Instrument 52-110 – Audit Committees (“NI 52-110”), a director is considered to be independent if he or she has no direct or indirect material relationship with the Corporation that the Board believes could reasonably be perceived to materially interfere with his or her ability to exercise independent judgment. NI 52-110 sets out certain situations where a director is deemed to have a material relationship with the Corporation.
As of the date of this Circular, the Board consists of six persons, three of whom the Corporation believes to be independent based upon the tests for independence set forth in NI 52-110: Mr. Craig Collard, Ms. Ira Duarte and Ms. Kara DioGuardi. Mr. Jason Wild is not an independent director as he served as an executive officer of the Corporation. Ms. Lisa Swartzman is not an independent director as she has accepted a consulting, advisory or other compensatory fee from the Corporation, other than as remuneration for acting in her capacity as a member of the Board. Mr. Ed Schutter is not an independent director as he is the former Chief Executive Officer of Arbor, a privately held company in respect of which Mr. Wild was also a director and served as a member of the Arbor compensation committee (although this is no longer the case given the sale of Arbor in September 2021; Mr. Wild and Mr. Schutter are no longer involved with Arbor). In 2021, the Board appointed Mr. Collard as the lead independent director of the Board.
We meet the director independence for our listing with the OTCQX Best Market, being a minimum of two independent directors and a majority of the audit committee being comprised of independent directors. Our Common Shares are not currently quoted or listed on any U.S. national exchange or interdealer quotation system that has a requirement that a majority of our Board be independent.
The Board facilitates independent supervision of management of the Corporation through meetings of the Board and through frequent informal discussions among independent members of the Board and management. In addition, the Board has access to the Corporation’s external auditors, the Corporation’s legal counsel, and to any of the Corporation’s officers. The Board has a stewardship responsibility to supervise the management of, and to oversee the conduct of the business of, the Corporation, to provide leadership and direction to management, to evaluate management, to set policies appropriate for the business of the Corporation, and to approve corporate strategies and goals.
The Board recommends nominees to the Shareholders for election as directors, and immediately following each annual general meeting of the Corporation, appoints the Audit Committee.
The Board exercises its independent supervision over management by way of its policies that (a) periodic meetings of the Board be held to obtain an update on significant corporate activities and plans, and (b) all material transactions of the Corporation are subject to prior approval of the Board. To facilitate open and candid discussion among its independent directors, such directors are encouraged to communicate with each other directly to discuss ongoing issues pertaining to the Corporation.
Risk Oversight
The Board has overall responsibility for the oversight of the Corporation’s risk management process, which is designed to support the achievement of organizational objectives, including strategic objectives, improve long-term organizational performance and enhance shareholder value. Risk management includes not only understanding Corporation-specific risks and the steps management implements to manage those risks, but also what level of risk is acceptable and appropriate for the Corporation. Management is responsible for establishing our business strategy, identifying and assessing the related risks and implementing appropriate risk management practices. The Board periodically reviews our business strategy and management’s assessment of the related risks and discusses with management the appropriate level of risk for the Corporation. Each of our Board committees also oversees the management of risk that falls within that committee’s areas of responsibility. For example, the Audit Committee assists the Board in fulfilling its risk oversight responsibilities relating to our financial and accounting risk management policies and procedures. As part of this process, the Audit Committee meets periodically with management to review, discuss and provide oversight with respect to our processes and controls to assess, monitor and mitigate potential risk exposure. In providing such oversight, the Audit Committee may also discuss such processes and controls with our independent registered public accounting firm. The Compensation Committee likewise assists the Board in fulfilling its risk oversight responsibilities associated with, among other things, compensation program design by reviewing
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whether there are risks arising from our compensation programs and practices that are reasonably likely to have a material adverse effect on the Corporation.
Board Leadership Structure
As of the Record Date, the Corporation does not have the same individual serving as the Chair of its Board and its Principal Executive Officer. Mr. Wild, the Corporation’s Executive Chairman, is Chair of the Board. The Corporation believes that separation of the positions of Board Chair and Chief Executive Officer reinforces the independence of the Board in its oversight of the business and affairs of the Corporation. In 2021, the Board appointed Mr. Collard as the lead independent director of the Board to help reinforce the independence of the Board as a whole. The lead independent director is empowered to, among other duties and responsibilities, approve agendas and meeting schedules for regular Board meetings, preside over Board meetings in the absence of the Chair, preside over and establish the agendas for meetings of the independent directors, act as liaison between the Chair and the independent directors, approve information sent to the Board, preside over any portion of Board meetings at which the evaluation or compensation of the Chief Executive Officer is presented or discussed and, as appropriate upon request, act as a liaison to shareholders. In addition, it is the responsibility of the lead independent director to coordinate between the Board and management with regard to the determination and implementation of responses to any problematic risk management issues. As a result, the Corporation believes that the lead independent director can help ensure the effective independent functioning of the Board in its oversight responsibilities. In addition, the Corporation believes that the lead independent director is better positioned to build a consensus among directors and to serve as a conduit between the other independent directors and the Board Chair, for example, by facilitating the inclusion on meeting agendas of matters of concern to the independent directors.
Hedging Policies or Practices
The Corporation does not currently have any hedging policies or practices in place.
Our NEOs and directors are discouraged from purchasing financial instruments designed to hedge or offset a decrease in market value of equity securities granted as compensation or held, directly or indirectly, by the NEO or director, and, to the knowledge of the Corporation, no NEO or director has undertaken such hedging transactions. However, the Corporation does not have a policy expressly prohibiting such transactions.
Other Public Company Directorships
In addition to acting as a director of the Corporation, the following current members of the Board hold a directorship in the other reporting issuers (or equivalent in other jurisdictions) set forth below:
Ed Schutter has served as a member of our Board since November 2020. Mr. Schutter was Chief Executive Officer of Arbor Pharmaceuticals (“Arbor”) from 2010 to 2021. Mr. Schutter is a registered pharmacist with a B.S. degree in Pharmaceutical Sciences from Mercer University and an M.B.A. from Kennesaw State University. He has also completed graduate studies in International Business at Njienrode University, Amsterdam, Netherlands. Mr. Schutter is currently a board member of Vitruvias Therapeutics, Intrance Medical Systems and Establishment Labs. The Corporation believes that Mr. Schutter is qualified to serve on the Board because of his extensive experience as an executive, his experience as a director and his industry experience in pharmaceuticals.
Name of Director |
Name of Issuer |
Market |
Craig Collard |
Heron Therapeutics |
Nasdaq Stock Market |
Ed Schutter |
Establishment Labs S.A. |
Nasdaq Stock Market |
Orientation and Continuing Education
The Corporation has created a formal orientation for new Board members which consist of briefings by management,
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and the provision of copies of or access to the Corporation’s documents.
The Corporation has not adopted formal policies respecting continuing education for Board members. However, Board members are encouraged to communicate with the Corporation’s management, legal counsel, external auditors and consultants to keep themselves current on industry trends and developments and changes in legislation (with management’s assistance), and to attend related industry seminars and to visit the Corporation’s operations. Board members have full access to the Corporation’s records.
Ethical Business Conduct
The Corporation has recently adopted a formal written code of business conduct and ethics (the “Code”) which is available on the Corporation’s external website at www.TerrAscend.com.
The Code sets out the Corporation’s commitment to conduct its business activities and transactions with the highest level of integrity and ethical standards and in accordance with all applicable laws. This Code reflects the business practices and principles of behavior that support this commitment. The Corporation expects every director, officer and employee to read and understand this Code and its application to the performance of his or her business responsibilities. Under the OBCA, a director of a corporation is required to act honestly and in good faith with a view to the best interests of such corporation and to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. In addition, directors must comply with the conflict of interest provisions of the OBCA, as well as the relevant securities regulatory instruments, in order to ensure the director exercises independent judgment in considering transactions and agreements in respect of which the director or an officer has a material interest. Any interested director would be required to declare the nature and extent of his or her interest and should not attend any part of a meeting of directors where such actions and agreements in respect of which such director has a material interest is discussed and would not be entitled to vote at meetings of directors that evoke such a conflict. If the Corporation makes any substantive amendments to the Code or grants any waiver from a provision of the Code to any executive officer or director, the Corporation will promptly disclose the nature of the amendment or waiver on its website.
Nomination of Directors
For information regarding the steps taken to determine compensation for directors, see the sections above entitled “Statement of Director Compensation”. The NCGC is governed by a charter defining its responsibilities, powers and operations. A copy of the NCGC Charter is available on the Corporation’s external website at www.TerrAscend.com.
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Compensation Committee
The Compensation Committee is currently comprised of Mr. Schutter (Chair) as well as Mr. Collard and Ms. DioGuardi, the latter two of whom are independent directors within the meaning of NI 52-110. The principal duties and responsibilities of the Compensation Committee include, among other things:
The Compensation Committee conducts reviews with respect to officer compensation at least once a year. The Compensation Committee may, in its sole discretion, retain the services of a compensation consultant, independent legal counsel and other advisors. For information regarding the steps taken to determine compensation for executive officers, see the section above entitled “Statement of Named Executive Officer Compensation”. The Compensation Committee is governed by a charter defining its responsibilities, powers and operations. A copy of Compensation Committee Charter is available on the Corporation’s external website at www.TerrAscend.com.
Compensation Committee Interlocks and Insider Participation
None of the members of the Compensation Committee are currently nor have been at any time an officer or employee of the Corporation. None of our executive officers currently serve as members of the Board or compensation committee of any entity that has one or more executive officers serving as a member of our Board or Compensation Committee.
Other Board Committees
The Board has a Compensation Committee, an Audit Committee and a NCGC (see below for more details regarding the Audit Committee charter). As the Corporation grows, and its operations and management structure became more complex, the Corporation may appoint additional standing committees, and will ensure that such committees are governed by written charters and are composed of at least a majority of independent directors. Charters for each of the Compensation Committee, Audit Committee and NCGC are available at www.TerrAscend.com.
Director Attendance(1)
Director |
|
Board |
|
Audit |
|
Compensation |
|
Total |
Craig Collard |
|
10/10 |
|
7/8 |
|
7/7 |
|
24/25 |
Ira Duarte(2) |
|
1/1 |
|
1/1 |
|
-- |
|
2/2 |
Ed Schutter |
|
7/10 |
|
-- |
|
6/7 |
|
13/17 |
Lisa Swartzman |
|
10/10 |
|
8/8 |
|
-- |
|
18/18 |
Jason Wild |
|
9/10 |
|
-- |
|
-- |
|
9/10 |
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Kara DioGuardi(3) |
|
8/8 |
|
-- |
|
2/3 |
|
10/11 |
________________
Although the Corporation does not have a formal policy pertaining to Director attendance at the Corporation’s Meeting, all Directors are encouraged to attend the Meeting. At the Corporation’s annual meeting held on June 27, 2022, Jason Wild, Ed Schutter, Lisa Swartzman, Kara DioGuardi were in attendance.
Assessments
The Board monitors the adequacy of information given to directors, communications between the Board and management and the strategic direction and processes of the Board and the committees of the Board. On an annual basis, the Board informally assesses the performance of the Board as a whole, each of the individual directors and each committee of the Board in order to satisfy itself that each is functioning effectively. The NCGC of the Corporation plans to implement a formal Board and Committee assessment process with regard to performance in 2023.
AUDIT COMMITTEE
Audit Committee Charter
The Audit Committee is governed by its charter that is attached as Schedule “A” to this Circular. A copy of the Audit Committee Charter is available on the Corporation’s external website at www.TerrAscend.com.
The principal duties and responsibilities of the Audit Committee include, among other things:
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Composition of the Audit Committee
The Audit Committee is currently comprised of Ms. Swartzman, Ms. Duarte (Chair), and Mr. Collard. Ms. Swartzman will not be standing for re-election to the Board. Ms. Duarte and Mr. Collard have been determined by the Board to be independent for the purposes of NI 52-110. Ms. Swartzman is not considered by the Board to be independent within the meaning of NI 52-110. Our listing with the OTCQX Best Market requires a majority of the audit committee be comprised of independent directors. Based on the education and breadth of experience of each member of the Audit Committee, the Board has determined each such member to be financially literate within the meaning of NI 52-110.
Relevant Education and Experience
For the purposes of NI 52-110, an individual is financially literate if he or she has the ability to read and understand a set of financial statements that present a breadth and level of complexity of accounting issues that are generally comparable to the breadth and complexity of the issues that can reasonably be expected to be raised by the issuer’s financial statements. All members of the Audit Committee have experience reviewing financial statements and dealing with related accounting and auditing issues. The education and experience of each member of the Audit Committee relevant to the performance of his duties as a member of the Audit Committee can be found under the section above entitled “Proposal No. 2: Election of Directors”. The Corporation has determined that Ira Duarte, Chair of the Audit Committee, qualifies as an “audit committee financial expert” as defined in the applicable SEC rules and has been determined by the Board to be independent for the purposes of the Securities Act of 1933.
Audit Committee Oversight
At no time since the commencement of the Corporation’s most recently completed financial year was a recommendation of the Audit Committee to nominate or compensate an external auditor not adopted by the Board.
Reliance on Certain Exemptions
At no time since the commencement of the Corporation’s most recently completed financial year has the Corporation relied on the following exemptions contained in NI 52-110:
Exemption for Venture Issuers
The Corporation is a “venture issuer” as defined in NI 52-110 and is relying on the exemption in section 6.1 of NI 52-110 relating to Parts 3 (Composition of Audit Committee) and 5 (Reporting Obligations) of NI 52-110.
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Pre-Approval Policies and Procedures
On March 15, 2023, the Corporation adopted an Audit Committee Pre-approval Policy for the approval of services of the independent registered accounting firm. The Policy sets forth the particular services that may be pre-approved on a collective basis as well as the procedures for such pre-approval.
Audit Fees
See section above entitled “Proposal No. 3: Re-Appointment of Auditor” for the table setting forth the fees paid by the Corporation and its subsidiaries to MNP for services rendered for the years ended December 31, 2022 and December 31, 2021.
Audit Committee Report
The following report of the Audit Committee of the Board does not constitute soliciting material and should not be deemed filed or incorporated by reference into any future filings under the U.S. Securities Act of 1933 or the Exchange Act, except to the extent we specifically incorporate this report by reference.
Management has the primary responsibility for establishing and maintaining adequate internal financial controls, for preparing the financial statements and for the public reporting process. MNP, the Corporation’s independent registered public accounting firm, is responsible for expressing opinions on the conformity of the Corporation’s audited financial statements with US GAAP.
The Audit Committee has reviewed and discussed with management and MNP the Corporation’s audited consolidated financial statements for the fiscal year ended December 31, 2022. The Audit Committee oversaw the Company’s acquisitions of Gage Growth Corp. (“Gage”) and KISA Enterprises MI, LLC and KISA Holdings, LLC (collectively, "Pinnacle") during 2022 and the subsequent impairment of the related Goodwill and certain intangible assets during the year. In addition, the Audit Committee oversaw the debt settlement agreement with Canopy USA, LLC, Canopy USA I Limited Partnership and Canopy USA III Limited Partnership (collectively, the "Canopy USA Entities").
The Audit Committee has also discussed with MNP the matters required to be discussed by the applicable requirements of the Public Company Accounting Oversight Board (the “PCAOB”) and the SEC.
The Audit Committee also received the written disclosures and the letter from MNP that are required by applicable requirements of the PCAOB regarding MNP’s communications with the Audit Committee concerning independence and has discussed with MNP its independence. On the basis of the foregoing, the Audit Committee concluded that MNP is independent from the Corporation, its affiliates and management.
Based upon its review of the Corporation’s audited financial statements and the discussions noted above, the Audit Committee recommended to the Board that the Corporation’s audited consolidated financial statements for the fiscal year ended December 31, 2022 be included in the Corporation’s Annual Report on Form 10-K for such fiscal year, which was filed with the SEC.
This report has been furnished by the members of the Audit Committee.
Submitted by the Audit Committee of the Board of Directors
Ira Duarte (Chair)
Lisa Swartzman
Craig Collard
OTHER MATTERS
Management of the Corporation is not aware of any matters to come before the Meeting other than those set forth in the Notice of Meeting. If any other matters do properly come before the Meeting, the person named in the form of
66
proxy intends to vote the Common Shares represented thereby in accordance with his or her best judgement on such matter.
SHAREHOLDER COMMUNICATIONS
We have not adopted a formal process for shareholder communications with the Board. Nevertheless, we regularly communicate with Shareholders and try to ensure that the views of Shareholders are heard by the Board or individual directors, as applicable, and that appropriate responses are provided to Shareholders in a timely manner. We believe our responsiveness to shareholder communications to the Board and engagement with Shareholders has been good. We will review each communication and will forward such communications to our Board, or to any individual director to whom the given communication is addressed, unless the given communication consists of general surveys and mailings to solicit business or advertise products; job applications or resumes; general questions and inquiries; or any material that is threatening, illegal or that does not relate to the responsibilities of our Board. Shareholders may provide feedback through a number of channels, including email at info@terrascend.com, at our mailing address (before May , 2023, 3610 Mavis Road, Mississauga, Ontario L5C 1W2, and after May , 2023, 77 City Centre Drive, East Tower - Suite 501, Mississauga, ON), or by calling our phone number (1-855-837-7295).
ADDITIONAL INFORMATION
Additional information relating to the Corporation is available on the Corporation’s SEDAR profile at www.sedar.com and on the SEC’s website at www.sec.gov. Financial information about the Corporation is provided in the Corporation’s consolidated annual financial statements and management’s discussion and analysis for the year ended December 31, 2022.
Shareholders may request copies of the Corporation’s financial statements and management’s discussion and analysis free of charge by contacting the Corporation at 1-855-837-7295.
BOARD APPROVAL
The Board has approved the contents of this Circular and the mailing thereof to the Corporation’s Shareholders.
DATED at Toronto, Ontario, the , 2023.
On Behalf of the Board of Directors
________________
Jason Wild
Executive Chairman, Chairman of the Board and Director
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SCHEDULE “A”
AUDIT COMMITTEE CHARTER
TOR_LAW\ 9132253\1
TERRASCEND CORP. AUDIT COMMITTEE CHARTER
The purpose of the Audit Committee (the “Committee”) is to assist the board of directors (the “Board”) of TerrAscend Corp. (the “Company”) in fulfilling its oversight responsibilities relating to:
The Committee will be composed of a minimum of three members.
TOR_LAW\ 9132253\1
Audit Committee Charter
Page 2
Members of the Committee will hold office until the next annual meeting of the shareholders.
Each year, the Board will appoint one member of the Committee to act as Chair of the Committee. The Chair of the Committee may be removed at any time at the discretion of the Board. If, in any year, the Board does not appoint a Chair, the incumbent Chair will continue in office until a successor is appointed.
If the Chair of the Committee is absent from any meeting, the Committee will select one of the other members of the Committee to preside at that meeting.
The Chair of the Committee will be responsible for developing and setting the agenda for Committee meetings. The Chair, in consultation with the Committee members, will determine the schedule and frequency of the Committee meetings. However, the Committee will meet at least four times per year.
A majority of the Committee will constitute a quorum. No business may be transacted by the Committee except at a meeting of its members at which a quorum of the Committee is present in person or by means of such telephonic, electronic or other communications facilities as permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously.
TOR_LAW\ 9132253\1
Audit Committee Charter
Page 3
The Committee may invite any of the directors, officers and employees of the Company and any advisors as it sees fit to attend meetings of the Committee.
During each meeting of the Committee, the Committee will meet with only Committee members present in person or by other permitted means.
Unless otherwise determined by resolution of the Board, the corporate secretary of the Company, or his or her nominee, will act as the Secretary to the Committee.
Minutes of meetings of the Committee will be recorded and maintained by the Secretary to the Committee and will be subsequently presented to the Committee for review and approval.
The Chief Financial Officer will act as management liaison with the Committee.
The Committee will conduct an annual review and assessment of its performance, effectiveness and contribution, including a review of its compliance with this Charter, in accordance with the process developed by the Board. The Committee will conduct that review and assessment in such manner as it deems appropriate and report the results to the Board.
The Committee will also review and assess the adequacy of this Charter on an annual basis, taking into account all legislative and regulatory requirements applicable to the Committee, as well as any best practice guidelines recommended by regulators or an applicable stock exchange, and will recommend any required or desirable changes to the Board.
The Committee will report to the Board in a timely manner with respect to each of its meetings held. This report may take the form of circulating copies of the minutes of each meeting held.
TOR_LAW\ 9132253\1
Audit Committee Charter
Page 4
TOR_LAW\ 9132253\1
Audit Committee Charter
Page 5
The Committee is responsible for:
TOR_LAW\ 9132253\1
Audit Committee Charter
Page 6
TOR_LAW\ 9132253\1
Audit Committee Charter
Page 7
assigning to the applicable Board committee those policies for implementation and ongoing monitoring.
TOR_LAW\ 9132253\1
Audit Committee Charter
Page 8
TOR_LAW\ 9132253\1
Audit Committee Charter
Page 9
TOR_LAW\ 9132253\1
The Committee is responsible for pre-approving all non-audit services to be provided to the Company or its subsidiary entities by the Company’s external auditor.
The Committee will review the following disclosures in advance of their public release by the Company:
The Committee is responsible for being satisfied that adequate procedures are in place for the review of the Company’s public disclosure of financial information extracted or derived from the Company’s financial statements and must periodically assess the adequacy of those procedures.
The Committee is responsible for establishing procedures for:
The Committee is responsible for reviewing and approving the Company’s hiring policies regarding partners, employees and former partners and employees of the present and former external auditor of the Company.
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SCHEDULE “B”
STOCK OPTION PLAN
3
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TERRASCEND CORP.
AMENDED AND RESTATED STOCK OPTION PLAN
(Adopted by the Board as of March 8, 2017, as amended and restated on November 2, 2021 and April 19, 2023)
DEFINITIONS AND INTERPRETATION
For the purposes of this Plan, the following terms have the following meanings:
4
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1.2.1 In this Plan, words signifying the singular number include the plural and vice versa, and words signifying gender include all genders. Every use of the words “including” or “includes” in this Plan is to be construed as meaning “including, without limitation” or “includes, without limitation”, respectively.
1.2.2 The division of this Plan into Articles and Sections and the insertion of headings are for convenience of reference only and do not affect the construction or interpretation of this Plan.
1.2.3 References in this Plan to an Article or Section are to be construed as references to an Article or Section of or to this Plan unless otherwise specified.
1.2.4 Unless otherwise specified in this Plan, time periods within which or following which any calculation or payment is to be made, or action is to be taken, will be calculated by excluding the day on which the period begins and including the day on which the period ends. If the last day of a time period is not a Business Day, the time period will end on the next Business Day. Unless otherwise determined by the Board, if an Option would, under the terms of this Plan or the Option Agreement, otherwise expire or terminate on a day which is not a Business Day, the Option will expire or terminate on the next Business Day. Notwithstanding the forgoing, with respect to an Incentive Stock Option, this Section 1.2.4 will not extend any termination or expiry date determined under Section 4.4, 4.10, or 4.14.
1.2.5 Unless otherwise specified, any reference in this Plan to any statute, rule or policy includes all regulations and subordinate legislation made under or in connection with that statute at any time, and is to be construed as a reference to that statute, rule or policy as amended, modified, restated, supplemented, extended, re-enacted, replaced or superseded at any time.
This Plan and each Option Agreement is governed by, and is to be construed and interpreted in accordance with, the laws of the Province of Ontario and the laws of Canada applicable in that Province.
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ESTABLISHMENT OF PLAN
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Any number of Shares which have been issued on the exercise of an Option will again be available for grants under this Plan, and will be considered to be part of the pool of Shares available for Options under this Plan.
If and to the extent any Option granted under this Plan expires or is terminated without having been exercised in whole or in part, the number of Shares then subject to that Option will be considered to be part of the pool of Shares available for Options under this Plan.
Nothing contained in this Plan will prevent the Board from adopting other or additional incentive compensation arrangements, whether Share Compensation Arrangements or otherwise.
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ADMINISTRATION OF PLAN
All determinations made in good faith on the matters referred to in this Section 3.1.1 will be final, conclusive, and binding on the Corporation and the relevant Participant.
The Corporation will maintain a register in which will be recorded:
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The Board may terminate this Plan at any time in its absolute discretion (without shareholder approval). If this Plan is terminated, no further Options will be granted but the Options then outstanding will continue in full force and effect in accordance with the provisions of this Plan, until the time they are exercised or terminated or expire under the terms of this Plan and the applicable Option Agreements.
The existence of any Option will not affect, in any way, the right or power of the Corporation to:
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ARTICLE 4 TERMS OF OPTIONS
4.1.1 Subject to the provisions of this Plan, the Board will have the authority to grant Options to Eligible Persons, and to determine the terms and conditions applicable to the exercise of those Options, including, for each Option:
An Eligible Person may be granted Options on more than one occasion under this Plan and be granted separate Options on any one occasion.
The Board will set the option exercise price (the “Option Exercise Price”) in respect of each Share issuable under an Option granted to a Participant. The Option Exercise Price will not be less than the “fair market value” of a Share on the Grant Date and, if the Shares are listed on an Exchange, will be subject to the minimum Option Exercise Price permitted by the Exchange. For the purposes of this Section 4.3, “fair market value” means:
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The Board will, on the Grant Date, set the option expiry date (the “Option Expiry Date”) of each Option granted to a Participant. The Option Expiry Date set under this Section 4.4 will be no later than ten (10) years after the Grant Date, and will be subject to earlier expiry in accordance with Section 4.10 and Section 4.11, and later expiry in accordance with Section 4.7.
No Option may be exercised during a Blackout Period, if the Participant is then restricted from trading in Shares pursuant to any policy of the Corporation or Applicable Laws. If an Option Expiry Date set under Section 4.4 falls on a date within a Blackout Period or within ten (10) Business Days following the expiration of a Blackout Period, the expiry date for that Option will be automatically extended, without any further act or formality, to that date which is the tenth Business Day after the end of the Blackout Period. This Section 4.7 will not extend any termination or expiry date determined under Section 4.4., 4.10, 4.11, or 4.14.
The Board may amend, suspend or discontinue the Plan or any Option at any time at its discretion, in good faith, acting reasonably, without obtaining the approval of the shareholders of the Corporation or Participants, provided, however, that no amendment, suspension or discontinuance of the Plan or of any Option may (i) materially and adversely affect
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any Option previously granted under the Plan without the consent of the Participant; or (ii) contravene the requirements (if any) of the Exchange (including, without limitation, the requirement that disinterested shareholder approval will be required to be obtained in certain circumstances) or any securities commission or regulatory body to which the Plan or the Corporation is subject to. Termination of the Plan shall not affect the ability of the Board to exercise the powers granted to it hereunder with respect to Options granted under the Plan prior to the date of such termination.
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(the date determined under Sections 4.10.1.2.1 to 4.10.1.2.4, the “Early Expiry Date”).
A: equals the total number of Options relating to such vesting period that have not previously vested in respect of such vesting period,
B: equals the total number of days between the first day of such vesting period relating to such Grant and the Participant’s Termination Date, and
C: equals total number of days in the vesting period relating to such vesting period,
shall become vested Options on the Participant’s Termination Date.
4.11.1 Despite any other provision of this Plan or any Option Agreement, in the event of an actual or potential Change of Control Transaction, the Board has the right, in its sole discretion and on the terms it sees fit, without any action or consent required on the part of any Participant, to deal with any Options (or any portion of any Options) in the manner it deems equitable and appropriate in the circumstances, including the right to:
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MISCELLANEOUS PROVISIONS
The holder of an Option will not have any rights as a shareholder of the Corporation with respect to any of the Shares issuable on exercise of that Option until that holder has exercised that Option in accordance with the terms of this Plan and has been issued the Shares.
Nothing in this Plan or any Option will confer on a Participant any right to continue in the employment or service of the Corporation or any Subsidiary or affect in any way the right of the Corporation or any Subsidiary to terminate the Participant’s employment or service at any time; nor will anything in this Plan or any Option be deemed or construed to constitute an agreement, or an expression of intent, on the part of the Corporation or any Subsidiary to extend the
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employment or service of any Participant beyond the date on which the Participant’s relationship with the Corporation or any Subsidiary would otherwise be terminated due to Retirement or pursuant to the provisions of any employment, consulting or other contract for services with the Corporation or any Subsidiary.
The Participants, by participating in this Plan, will be deemed to have accepted all risks associated with acquiring Shares pursuant to this Plan. Each Participant acknowledges that the Shares are subject to, and may be required to be held indefinitely under, applicable securities laws. The Corporation and the Subsidiaries make no undertaking, representation, warranty or guarantee as to the future value or price, or as to the listing on any stock exchange or other market, of any Shares issued under this Plan, and will not be liable to any Participant for any loss resulting from that Participant’s participation in this Plan or as a result of the amendment, suspension or termination of this Plan or any Option in accordance with its terms.
The Options issued under this Plan, and the Shares issuable upon exercise of the Options, may, in certain circumstances be subject to a 4 month hold period, or other resale restriction, commencing on the Grant Date of the Option in accordance with the polices of the Exchange and/or applicable securities laws.
All written notices to be given by a Participant to the Corporation will be delivered personally or by registered mail, postage prepaid, addressed as follows:
330-357 South Gulph Road
King of Prussia, Pennsylvania 19406
Attn: Chief Executive Officer
Any notice given by a Participant pursuant to the terms of an Option will not be effective until actually received by the Corporation at the above address.
Each Participant will, when requested to do so by the Corporation, sign and deliver all documents relating to the granting or exercise of Options deemed necessary or desirable by the Corporation. Each Participant will provide the Corporation with all information (including personal information) which is necessary for the administration of this Plan, and each Participant consents to the collection, use and disclosure of information by the Corporation necessary for the administration of this Plan.
The Corporation and each Participant irrevocably and unconditionally submits and attorns to the exclusive jurisdiction of the courts of the Province of Ontario to determine all issues, whether at law or in equity, arising from this Plan and each Option Agreement. To the extent permitted by Applicable Laws, the Corporation and each Participant:
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SCHEDULE 1
CALIFORNIA SUPPLEMENT
The Board has adopted this California Supplement for purposes of satisfying the requirements of Section 25102(o). All capitalized terms used but not defined in this California Supplement shall have the meanings ascribed to them in the TerrAscend Corp. Stock Option Plan, as the same may be amended or varied from time to time (the “Plan”).
Notwithstanding anything to the contrary contained in the Plan, and except as otherwise determined by the Corporation, the provisions set forth in this California Supplement shall apply to any Options granted under the Plan to a U.S. Participant who is a resident of the State of California on the date of the Grant (each, a “California Optionholder”) and which are intended to be exempt from registration in California pursuant to Section 25102(o).
All California Optionholders will be subject to the following additional limitations, terms and conditions:
1. Minimum Exercise Period Following Termination
Unless a California Optionholder’s employment is terminated for cause (as defined by applicable law or the terms of any contract of employment between the Corporation and such California Optionholder), in the event of any other termination of employment of such California Optionholder, such California Optionholder shall have the right to exercise an Option, to the extent that he or she was otherwise entitled to exercise such Option on the date employment terminated, until the earlier of: (i) at least six (6) months from the date of termination, if termination was caused by such California Optionholder’s death or “permanent and total disability” (within the meaning of Section 22(e)(3) of the Code), (ii) at least thirty (30) days from the date of termination, if termination was caused other than by such California Optionholder’s death or “permanent and total disability” (within the meaning of Section 22(e)(3) of the Code), and (iii) the Option Expiry Date.
2. Additional Limitations on Timing of Awards
No Option granted to a California Optionholder shall become exercisable, vested or realizable unless the Plan has been approved by the holders of a majority of the Corporation’s outstanding voting securities (i) within twelve (12) months before or after the date the Plan was adopted by the Board or (ii) prior to or within twelve (12) months following the granting of any Option to a California Optionholder.
3. Additional Limitations on Options; Adjustments
No Option granted to a California Optionholder will be granted for a term in excess of ten (10) years. The terms of all Options granted to a California Optionholder shall comply, to the extent applicable, with Section 260.140.41 or Section 260.140.42 of the California Code of Regulations. The Corporation will make such adjustments to an Option held by a California Optionholder as may be required by Section 260.140.41 or Section 260.140.42 of the California Code of Regulations.
4. Additional Requirement to Provide Information to California Optionholders
To the extent required by Section 260.140.46 of the California Code of Regulations (or any successor provision thereto), the Corporation shall provide to each California Optionholder and to each California Optionholder who acquires Shares pursuant to the Plan, not less frequently than annually, copies of annual financial statements (which need not be audited). The Corporation shall not be required to provide such statements to key persons whose duties in connection with the Corporation assure their access to equivalent information. In addition, this information requirement shall not apply to the Plan to the extent that it complies with all conditions of Rule 701, as determined by the Board; provided that, for purposes of determining such compliance, any registered domestic partner shall be considered a “family member” as that term is defined in Rule 701.
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SCHEDULE “C”
RSU PLAN
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TERRASCEND CORP.
AMENDED AND RESTATED SHARE UNIT PLAN
(Adopted by the Board as of November 19, 2019, as amended and restated on April 19, 2023)
The Plan described in this document shall be called the “TerrAscend Corp. Share Unit Plan”.
The purposes of the Plan are:
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Notwithstanding the foregoing, to the extent that a Share Unit granted to a U.S. Participant is subject to the requirements for Section 409A and the occurrence of a Disability (as defined above) is a settlement event for such Share Unit, then such Disability shall not be a “Disability” for purposes of such Share Unit unless such Disability also constitutes a “disability” as defined in U.S. Treasury Regulation Section 1.409A-3(i)(4).
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The Plan shall be administered by the Board. The Board shall have the authority in its sole and absolute discretion to administer the Plan and to exercise all the powers and authorities either specifically granted to it under the Plan or necessary or advisable in the administration of the Plan subject to and not inconsistent with the express provisions of this Plan, including, without limitation, the authority:
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A equals the total number of RSUs relating to such Grant that have not previously Vested and dividend equivalent RSUs in respect of such RSUs,
B equals the total number of days between the first day of the Vesting Period
relating to such Grant and the Participant’s date of Termination (including due to death), or Disability Date, as the case may be, and
C equals total number of days in the Vesting Period relating to such Grant,
shall become Vested RSUs on the Participant’s date of Termination or Disability Date, as the case may be; and
A equals the total number of PSUs recorded in the Participant’s Share Unit Account relating to such Grant that have not previously Vested, including dividend equivalent PSUs, adjusted by the Board based on the extent to which the Performance Conditions set out in the Grant Agreement applicable to such Grant would have been met if the Performance Period for the Grant had ended as of the last day of the month immediately preceding the Participant’s date of Termination (including due to death) or Disability Date, as the case may be,
B equals the total number of days between the first day of the Performance Period relating to such Grant and the Participant’s date of Termination or Disability Date, as the case may be, and
C equals the total number of days in the Performance Period relating to such Grant,
shall become Vested PSUs on the Participant’s date of Termination or Disability Date, as the case may be.
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Notwithstanding the foregoing, the Board shall not have any discretion under this Section 6.6 to take any action with respect to a U.S. Participant’s Share Units that would cause a violation of Section 409A.
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Subject to Section 9.7, the assignment or transfer of the Share Units, or any other benefits under this Plan, shall not be permitted other than by operation of law.
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CALIFORNIA SUPPLEMENT
The Board has adopted this California Supplement for purposes of satisfying the requirements of Section 25102(o). All capitalized terms used but not defined in this California Supplement shall have the meanings ascribed to them in the TerrAscend Corp. Share Unit Plan, as the same may be amended or varied from time to time (the “Plan”).
Notwithstanding anything to the contrary contained in the Plan, and except as otherwise determined by the Corporation, the provisions set forth in this California Supplement shall apply to any Grants made under the Plan to a U.S. Participant who is a resident of the State of California on the date of the Grant (each, a “California Holder”) and which are intended to be exempt from registration in California pursuant to Section 25102(o).
All California Holders will be subject to the following additional limitations, terms and conditions:
No Share Units granted to a California Holder shall become vested or realizable unless the Plan has been approved by the holders of a majority of the Corporation’s outstanding voting securities (i) within twelve (12) months before or after the date the Plan was adopted by the Board or (ii) prior to or within twelve (12) months following the Grant to a California Holder.
No Share Units granted to a California Holder will be granted for a term in excess of ten (10) years. The terms of all Share Units granted to a California Holder shall comply with Section 260.140.42 of the California Code of Regulations. The Corporation will make such adjustments to any Share Units held by a California Holder as may be required by Section 260.140.42 of the California Code of Regulations.
To the extent required by Section 260.140.46 of the California Code of Regulations (or any successor provision thereto), the Corporation shall provide to each California Holder and to each California Holder who acquires Shares pursuant to the Plan, not less frequently than annually, copies of annual financial statements (which need not be audited). The Corporation shall not be required to provide such statements to key persons whose duties in connection with the Corporation assure their access to equivalent information. In addition, this information requirement shall not apply to the Plan to the extent that it complies with all conditions of Rule 701, as determined by the Board; provided that, for purposes of determining such compliance, any registered domestic partner shall be considered a “family member” as that term is defined in Rule 701.
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LEGAL*58485063.2
APPENDIX 1
TRANSACTION PROPOSAL
“BE IT RESOLVED THAT:
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APPENDIX 2
SECTION 185 OF THE BUSINESS CORPORATIONS ACT (ONTARIO)
185. (1) Rights of dissenting shareholders — Subject to subsection (3) and to sections 186 and 248, if a corporation resolves to,
(a) amend its articles under section 168 to add, remove or change restrictions on the issue, transfer or ownership of shares of a class or series of the shares of the corporation;
(b) amend its articles under section 168 to add, remove or change any restriction upon the business or businesses that the corporation may carry on or upon the powers that the corporation may exercise;
(c) amalgamate with another corporation under sections 175 and 176;
(d) be continued under the laws of another jurisdiction under section 181; or
(e) sell, lease or exchange all or substantially all its property under subsection 184(3), a holder of shares of any class or series entitled to vote on the resolution may dissent.
(2) Idem — If a corporation resolves to amend its articles in a manner referred to in subsection 170(1), a holder of shares of any class or series entitled to vote on the amendment under section 168 or 170 may dissent, except in respect of an amendment referred to in,
(a) clause 170(1)(a), (b) or (e) where the articles provide that the holders of shares of such class or series are not entitled to dissent; or
(b) subsection 170(5) or (6).
(2.1) One class of shares — The right to dissent described in subsection (2) applies even if there is only one class of shares.
(3) Exception— A shareholder of a corporation incorporated before the 29th day of July, 1983 is not entitled to dissent under this section in respect of an amendment of the articles of the corporation to the extent that the amendment,
(a) amends the express terms of any provision of the articles of the corporation to conform to the terms of the provision as deemed to be amended by section 277; or
(b) deletes from the articles of the corporation all of the objects of the corporation set out in its articles, provided that the deletion is made by the 29th day of July, 1986.
(4) Shareholder’s right to be paid fair value — In addition to any other right the shareholder may have, but subject to subsection (30), a shareholder who complies with this section is entitled, when the action approved by the resolution from which the shareholder dissents becomes effective, to be paid by the corporation the fair value of the shares held by the shareholder in respect of which the shareholder dissents, determined as of the close of business on the day before the resolution was adopted.
(5) No partial dissent — A dissenting shareholder may only claim under this section with respect to all the shares of a class held by the dissenting shareholder on behalf of any one beneficial owner and registered in the name of the dissenting shareholder.
(6) Objection — A dissenting shareholder shall send to the corporation, at or before any meeting of shareholders at which a resolution referred to in subsection (1) or (2) is to be voted on, a written objection to the resolution,
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unless the corporation did not give notice to the shareholder of the purpose of the meeting or of the shareholder’s right to dissent.
(7) Idem — The execution or exercise of a proxy does not constitute a written objection for purposes of subsection (6).
(8) Notice of adoption of resolution — The corporation shall, within ten days after the shareholders adopt the resolution, send to each shareholder who has filed the objection referred to in subsection (6) notice that the resolution has been adopted, but such notice is not required to be sent to any shareholder who voted for the resolution or who has withdrawn the objection.
(9) Idem — A notice sent under subsection (8) shall set out the rights of the dissenting shareholder and the procedures to be followed to exercise those rights.
(10) Demand for payment of fair value — A dissenting shareholder entitled to receive notice under subsection (8) shall, within twenty days after receiving such notice, or, if the shareholder does not receive such notice, within twenty days after learning that the resolution has been adopted, send to the corporation a written notice containing,
(a) the shareholder’s name and address;
(b) the number and class of shares in respect of which the shareholder dissents; and
(c) a demand for payment of the fair value of such shares.
(11) Certificates to be sent in — Not later than the thirtieth day after the sending of a notice under subsection (10), a dissenting shareholder shall send the certificates, if any, representing the shares in respect of which the shareholder dissents to the corporation or its transfer agent.
(12) Idem — A dissenting shareholder who fails to comply with subsections (6), (10) and (11) has no right to make a claim under this section.
(13) Endorsement on certificate — A corporation or its transfer agent shall endorse on any share certificate received under subsection (11) a notice that the holder is a dissenting shareholder under this section and shall return forthwith the share certificates to the dissenting shareholder.
(14) Rights of dissenting shareholder — On sending a notice under subsection (10), a dissenting shareholder ceases to have any rights as a shareholder other than the right to be paid the fair value of the shares as determined under this section except where,
(a) the dissenting shareholder withdraws notice before the corporation makes an offer under subsection (15);
(b) the corporation fails to make an offer in accordance with subsection (15) and the dissenting shareholder withdraws notice; or
(c) the directors revoke a resolution to amend the articles under subsection 168(3), terminate an amalgamation agreement under subsection 176(5) or an application for continuance under subsection 181(5), or abandon a sale, lease or exchange under subsection 184(8),
in which case the dissenting shareholder’s rights are reinstated as of the date the dissenting shareholder sent the notice referred to in subsection (10).
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(14.1) A dissenting shareholder whose rights are reinstated under subsection (14) is entitled, upon presentation and surrender to the corporation or its transfer agent of any share certificate that has been endorsed in accordance with subsection (13),
(a) to be issued, without payment of any fee, a new certificate representing the same number, class and series of shares as the certificate so surrendered; or
(b) if a resolution is passed by the directors under subsection 54(2) with respect to that class and series of shares,
(i) to be issued the same number, class and series of uncertificated shares as represented by the certificate so surrendered, and
(ii) to be sent the notice referred to in subsection 54 (3).
(14.2) A dissenting shareholder whose rights are reinstated under subsection (14) and who held uncertificated shares at the time of sending a notice to the corporation under subsection (10) is entitled,
(a) to be issued the same number, class and series of uncertificated shares as those held by the dissenting shareholder at the time of sending the notice under subsection (10); and
(b) to be sent the notice referred to in subsection 54 (3).
(15) Offer to pay — A corporation shall, not later than seven days after the later of the day on which the action approved by the resolution is effective or the day the corporation received the notice referred to in subsection (10), send to each dissenting shareholder who has sent such notice,
(a) a written offer to pay for the dissenting shareholder’s shares in an amount considered by the directors of the corporation to be the fair value thereof, accompanied by a statement showing how the fair value was determined; or
(b) if subsection (30) applies, a notification that it is unable lawfully to pay dissenting shareholders for their shares.
(16) Idem — Every offer made under subsection (15) for shares of the same class or series shall be on the same terms.
(17) Idem — Subject to subsection (30), a corporation shall pay for the shares of a dissenting shareholder within ten days after an offer made under subsection (15) has been accepted, but any such offer lapses if the corporation does not receive an acceptance thereof within thirty days after the offer has been made.
(18) Application to court to fix fair value — Where a corporation fails to make an offer under subsection (15) or if a dissenting shareholder fails to accept an offer, the corporation may, within fifty days after the action approved by the resolution is effective or within such further period as the court may allow, apply to the court to fix a fair value for the shares of any dissenting shareholder.
(19) Idem — If a corporation fails to apply to the court under subsection (18), a dissenting shareholder may apply to the court for the same purpose within a further period of twenty days or within such further period as the court may allow.
(20) Idem — A dissenting shareholder is not required to give security for costs in an application made under subsection (18) or (19).
(21) Costs — If a corporation fails to comply with subsection (15), then the costs of a shareholder application under subsection (19) are to be borne by the corporation unless the court otherwise orders.
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(22) Notice to shareholders — Before making application to the court under subsection (18) or not later than seven days after receiving notice of an application to the court under subsection (19), as the case may be, a corporation shall give notice to each dissenting shareholder who, at the date upon which the notice is given,
(a) has sent to the corporation the notice referred to in subsection (10); and
(b) has not accepted an offer made by the corporation under subsection (15), if such an offer was made, of the date, place and consequences of the application and of the dissenting shareholder’s right to appear and be heard in person or by counsel, and a similar notice shall be given to each dissenting shareholder who, after the date of such first mentioned notice and before termination of the proceedings commenced by the application, satisfies the conditions set out in clauses (a) and (b) within three days after the dissenting shareholder satisfies such conditions.
(23) Parties joined — All dissenting shareholders who satisfy the conditions set out in clauses (22)(a) and (b) shall be deemed to be joined as parties to an application under subsection (18) or (19) on the later of the date upon which the application is brought and the date upon which they satisfy the conditions, and shall be bound by the decision rendered by the court in the proceedings commenced by the application.
(24) Idem — Upon an application to the court under subsection (18) or (19), the court may determine whether any other person is a dissenting shareholder who should be joined as a party, and the court shall fix a fair value for the shares of all dissenting shareholders.
(25) Appraisers — The court may in its discretion appoint one or more appraisers to assist the court to fix a fair value for the shares of the dissenting shareholders.
(26) Final order — The final order of the court in the proceedings commenced by an application under subsection (18) or (19) shall be rendered against the corporation and in favour of each dissenting shareholder who, whether before or after the date of the order, complies with the conditions set out in clauses (22)(a) and (b).
(27) Interest — The court may in its discretion allow a reasonable rate of interest on the amount payable to each dissenting shareholder from the date the action approved by the resolution is effective until the date of payment.
(28) Where corporation unable to pay — Where subsection (30) applies, the corporation shall, within ten days after the pronouncement of an order under subsection (26), notify each dissenting shareholder that it is unable lawfully to pay dissenting shareholders for their shares.
(29) Idem — Where subsection (30) applies, a dissenting shareholder, by written notice sent to the corporation within thirty days after receiving a notice under subsection (28), may,
(a) withdraw a notice of dissent, in which case the corporation is deemed to consent to the withdrawal and the shareholder’s full rights are reinstated; or
(b) retain a status as a claimant against the corporation, to be paid as soon as the corporation is lawfully able to do so or, in a liquidation, to be ranked subordinate to the rights of creditors of the corporation but in priority to its shareholders.
(30) Idem — A corporation shall not make a payment to a dissenting shareholder under this section if there are reasonable grounds for believing that,
(a) the corporation is or, after the payment, would be unable to pay its liabilities as they become due; or
(b) the realizable value of the corporation’s assets would thereby be less than the aggregate of its liabilities.
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(31) Court order — Upon application by a corporation that proposes to take any of the actions referred to in subsection (1) or (2), the court may, if satisfied that the proposed action is not in all the circumstances one that should give rise to the rights arising under subsection (4), by order declare that those rights will not arise upon the taking of the proposed action, and the order may be subject to compliance upon such terms and conditions as the court thinks fit and, if the corporation is an offering corporation, notice of any such application and a copy of any order made by the court upon such application shall be served upon the Commission.
(32) Commission may appear — The Commission may appoint counsel to assist the court upon the hearing of an application under subsection (31), if the corporation is an offering corporation.
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Form of Proxy – Annual and Special Meeting to be held on June 22, 2023 |
Trader’s Bank Building 702, 67 Yonge St. Toronto, ON M5E 1J8 |
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Appointment of Proxyholder I/We being the undersigned holder(s) of Voting Shares (as defined below) hereby appoint Ari Unterman, Associate General Counsel (the “Management Nominee”) |
OR |
Print the name of the person you are appointing if this person is someone other than the Management Nominees listed herein: |
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as my/our proxyholder with full power of substitution and to attend, act, and to vote for and on behalf of the holder in accordance with the following direction (or if no directions
have been given, as the proxyholder sees fit) and all other matters that may properly come before the annual general meeting of the holders (each a “Holder”) of Common Shares of TerrAscend (the “Voting Shares”) to be held virtually at https://web.lumiagm.com/239473997 on June 22, 2022, at 1:00pm (Eastern Time) or at any adjournment or postponement thereof (the “Meeting”).
This form of proxy is to be read in conjunction with TerrAscend’s notice of meeting and management information circular dated , 2022 (the “Circular”). Capitalized terms
used but not defined in this form of proxy shall have the meanings given to them in the Circular.
1. Number of Directors. To set the number of directors to be elected at the Meeting to at five (5). |
For Against ☐ ☐ |
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2. Election of Directors. |
For Withhold |
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For Withhold |
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For Withhold |
a. Craig Collard |
☐ ☐ |
b. Kara DioGuardi |
☐ ☐ |
c. Ira Duarte |
☐ ☐ |
d. Edward Schutter |
☐ ☐ |
e. Jason Wild |
☐ ☐ |
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3. Appointment of Auditors. To ratify the selection of MNP LLP by the audit committee as our independent public accounting firm for the fiscal year ended December 31, 2023. |
For Withhold ☐ ☐ |
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4. Special Resolution. To consider and, if deemed advisable, to approve, with or without variation, an ordinary resolution, the text of which is set forth in the accompanying Circular, to approve certain amendments to the stock option plan of TerrAscend Corp., including all unallocated stock options issuable thereunder, as further described in the Circular. |
For Against ☐ ☐ |
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5. Special Resolution. To consider and, if deemed advisable, to approve, with or without variation, an ordinary resolution, the text of which is set forth in the Circular, to approve certain amendments to the share unit plan of TerrAscend Corp., including all unallocated awards issuable thereunder, as further described in the Circular; |
For Against ☐ ☐ |
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6. Special Resolution. To consider and, if deemed advisable, to pass a special resolution, the text of which is set forth in the Circular, authorizing TerrAscend Growth Corp. (formerly known as Gage Growth Corp.), a wholly-owned subsidiary of the Corporation, to issue and sell on a private placement basis common shares of TerrAscend Growth Corp. for aggregate gross proceeds of |
For Against ☐ |
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US$1,000,000, as further described in the Circular, which shall be deemed, for the purposes of Section 184(3) of the Business Corporations Act (Ontario), Canada, to be a sale of all or substantially all of the assets of TerrAscend Corp.. |
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Authorized Signature(s) – This section must be completed for your instructions to be executed.
I/we authorize you to act in accordance with my/our instructions set out above. I/We hereby revoke any proxy previously given with respect to the Meeting. If no voting instructions are indicated above, this Proxy will be voted as recommended by Management. |
Signature(s): |
Date
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This form of proxy is solicited by and on behalf of Management.
Proxies must be received by 1:00pm, Eastern Time, on June 20, 2023.
Notes to Proxy
INSTEAD OF MAILING THIS PROXY, YOU MAY SUBMIT YOUR PROXY USING SECURE ONLINE VOTING AVAILABLE ANYTIME:
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https://login.odysseytrust.com/pxlogin You will require the CONTROL NUMBER printed with your address to the right. If you vote by Internet, do not mail this proxy. To Virtually Attend the Meeting:
To request the receipt of future documents via email and/or to sign up for Securityholder Online services, you may contact Odyssey Trust Company at www.odysseycontact.com
Voting by mail may be the only method for securities held in the name of a corporation or securities being voted on behalf of another individual. A return envelope has been enclosed for voting by mail. |
Shareholder Address and Control Number Here
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To Vote Your Proxy Online please visit:
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