UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
6-K
Report
of Foreign Private Issuer Pursuant to Rule 13a-16
or 15d-16 of the Securities Exchange Act of 1934
For
the month of |
August
2023 |
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Commission
File Number |
001-41460 |
Bruush
Oral Care Inc.
(Translation
of registrant’s name into English)
128
West Hastings Street, Unit 210
Vancouver,
British Columbia V6B 1G8
Canada
(844)
427-8774
(Address
of principal executive offices)
Indicate
by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7):
INFORMATION
CONTAINED IN THIS FORM 6-K REPORT
As
previously reported on December 20, 2022, Bruush Oral Care Inc. (the “Company”) entered into a $3 million private placement
transaction (the “Private Placement”), pursuant to which the Company issued to certain investors (the “Holders”)
common share purchase warrants (the “Existing Warrants”). On August 22, 2023, the Company issued an offer letter to the Holder
(the “Inducement Letter”), providing the Holders the opportunity to exercise for cash all or some of the Existing Warrants
at an exercise price per common share (the “Warrant Shares”) of $3.33 in consideration for the issuance to each exercising
Holder of a new common share purchase warrant (the “New Warrant”) exercisable for up to a number of common shares (the “New
Warrant Shares”) equal to 250% of the number of Warrant Shares issued in connection with the Inducement Letter to the Holder, at
an exercise price of $3.33 per share. The New Warrant is exercisable up to 5:00 P.M., New York City time, on the termination date of
June 9, 2028. In connection with the Inducement Letter the Holders elected to exercise the Warrants into 633,026 Warrant Shares. As a
result of such of the exercise of Existing Warrants, New Warrants entitling the Holders to purchase an aggregate 1,582,566 New Warrant
Shares were issued.
The
descriptions of the Inducement Letter and New Warrant are set forth in this Report and are qualified in their entirety by reference to
the full text of those documents, which are attached hereto as Exhibits 10.1 and 10.2, respectively.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
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Bruush
Oral Care Inc. |
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(Registrant) |
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Date: |
August
23, 2023 |
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By: |
/s/
Aneil Singh Manhas |
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Name: |
Aneil
Singh Manhas |
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Title: |
Chief
Executive Officer |
Exhibit
10.1
Bruush
Oral Care Inc.
August
22, 2023
Holder
of Common Share Purchase Warrants
Re:
Inducement Offer to Exercise Common Share Purchase Warrants
Dear
Holder:
Bruush
Oral Care Inc. (the “Company”) is pleased to offer to you the opportunity to exercise all or some of the warrants
to purchase the Company’s common shares, no par value per share (the “Common Shares”), issued to you on December
9, 2022 (the “Existing Warrants”), as set forth on the signature page hereto and currently held by you (the “Holder”).
The resale of the Common Shares underlying the Existing Warrants (the “Warrant Shares”) has been registered for resale
pursuant to the registration statement on Form F-1 (File No. 333-269030) (the “Registration Statement”). The Registration
Statement is currently effective and, upon exercise of the Existing Warrants pursuant to this letter agreement, will be effective for
the resale of the Warrant Shares. No later than the first (1st) Trading Day following the date hereof, the Company shall file a prospectus
supplement to the Registration Statement in connection with the Existing Warrants pursuant to the terms hereunder. Capitalized terms
not otherwise defined herein shall have the meanings set forth in the New Warrants (as defined herein).
In
consideration for exercising in full all of the Existing Warrants held by you and set forth on the Holder’s signature page hereto
(the “Warrant Exercise”) at the Exercise Price per Warrant Share as set forth in the Existing Warrants of $3.33, the
Company hereby offers to issue you or your designee a new unregistered Common Share purchase warrant (“New Warrant”)
pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (“Securities Act”), to purchase up to a number
of Common Shares (the “New Warrant Shares”) equal to 250% of the number of Warrant Shares issued pursuant to the Warrant
Exercise hereunder, which New Warrants shall be substantially in the form as reflected in Exhibit A hereto, will be exercisable
from the issue date thereof up to 5:00pm, New York City time on June 9, 2028, and an exercise price per share equal to $3.33, subject
to adjustment therein.
The
New Warrants certificate(s) will be delivered within two (2) Trading Days following the Execution Time. Notwithstanding anything herein
to the contrary, in the event that any Warrant Exercise would otherwise cause the Holder to exceed the beneficial ownership limitations
(“Beneficial Ownership Limitation”) set forth in Section 2(e) of the Existing Warrants (or, if applicable and at the
Holder’s election, 9.99%), the Company shall only issue such number of Warrant Shares to the Holder that would not cause the Holder
to exceed the maximum number of Warrant Shares permitted thereunder, as directed by the Holder, with the balance to be held in abeyance
until notice from the Holder that the balance (or portion thereof) may be issued in compliance with such limitations, which abeyance
shall be evidenced through the Existing Warrants which shall be deemed prepaid thereafter (including the payment in full of the exercise
price), and exercised pursuant to a Notice of Exercise in the Existing Warrant (provided no additional exercise price shall be due and
payable). The parties hereby agree that the Beneficial Ownership Limitation for purposes of the Existing Warrant is as set forth on the
Holder’s signature page hereto.
Expressly
subject to the paragraph immediately following this paragraph below, Holder may accept this offer by signing this letter below, with
such acceptance constituting Holder’s exercise in full of the Existing Warrants for an aggregate exercise price set forth on the
Holder’s signature page hereto (the “Warrants Exercise Price”) on or before 10:00 p.m., Eastern Time, on August
22, 2023 (the “Execution Time”).
Additionally,
the Company agrees to the representations, warranties and covenants set forth on Annex A attached hereto. Holder represents and
warrants that, as of the date hereof it is, and on each date on which it exercises any New Warrants it will be, an “accredited
investor” as defined in Rule 501 of the Securities Act, and agrees that the New Warrants will contain restrictive legends when
issued, and neither the New Warrants nor the Common Shares issuable upon exercise of the New Warrants will be registered under the Securities
Act, except as provided in Annex A attached hereto. Also, Holder represents and warrants that it is acquiring the New Warrants
as principal for its own account and has no direct or indirect arrangement or understandings with any other persons to distribute or
regarding the distribution of the New Warrants or the New Warrant Shares (this representation is not limiting Holder’s right to
sell the New Warrant Shares pursuant to an effective registration statement under the Securities Act or otherwise in compliance with
applicable federal and state securities laws).
The
Holder understands that the New Warrants and the New Warrant Shares are not, and, subject to the registration obligations contained in
paragraph (d) of Annex A, may never be, registered under the Securities Act, or the securities laws of any state and, accordingly, each
certificate, if any, representing such securities shall bear a legend substantially similar to the following:
“THIS
SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS.”
Certificates
evidencing the New Warrant Shares shall not contain any legend (including the legend set forth above), (i) while a registration statement
covering the resale of such New Warrant Shares is effective under the Securities Act, (ii) following any sale of such New Warrant Shares
pursuant to Rule 144 under the Securities Act, (iii) if such New Warrant Shares are eligible for sale under Rule 144 (assuming cashless
exercise of the New Warrants), without the requirement for the Company to be in compliance with the current public information requirement
under Rule 144 as to such New Warrant Shares and without volume or manner-of-sale restrictions, (iv) if such New Warrant Shares may be
sold under Rule 144 (assuming cashless exercise of the New Warrant) and the Company is then in compliance with the current public information
requirement under Rule 144 as to such New Warrant Shares, or (v) if such legend is not required under applicable requirements of the
Securities Act (including judicial interpretations and pronouncements issued by the staff of the Securities and Exchange Commission (the
“Commission”) and the earliest of clauses (i) through (v), the “Delegend Date”)). The Company shall
cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Delegend Date if required by the Company and/or the
Transfer Agent to effect the removal of the legend hereunder, or at the request of the Holder, which opinion shall be in form and substance
reasonably acceptable to the Holder. From and after the Delegend Date, such New Warrant Shares shall be issued free of all legends. The
Company agrees that following the Delegend Date or at such time as such legend is no longer required under this Section, it will, no
later than two (2) Trading Days following the delivery by the Holder to the Company or the Transfer Agent of a certificate representing
the New Warrant Shares issued with a restrictive legend (such second (2nd) Trading Day, the “Legend Removal Date”),
deliver or cause to be delivered to the Holder a certificate representing such shares that is free from all restrictive and other legends
or, at the request of the Holder shall credit the account of the Holder’s prime broker with the Depository Trust Company System
as directed by the Holder.
In
addition to the Holder’s other available remedies, the Company shall pay to a Holder, in cash, (i) as partial liquidated damages
and not as a penalty, for each $1,000 of New Warrant Shares (based on the VWAP of the Common Shares on the date such New Warrant Shares
are submitted to the Transfer Agent) delivered for removal of the restrictive legend, $10 per Trading Day (increasing to $20 per Trading
Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date until such certificate
is delivered without a legend and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to the Holder by the
Legend Removal Date a certificate representing the New Warrant Shares so delivered to the Company by the Holder that is free from all
restrictive and other legends and (b) if after the Legend Removal Date the Holder purchases (in an open market transaction or otherwise)
Common Shares to deliver in satisfaction of a sale by the Holder of all or any portion of the number of Common Shares, or a sale of a
number of Common Shares equal to all or any portion of the number of Common Shares that the Holder anticipated receiving from the Company
without any restrictive legend, then, an amount equal to the excess of the Holder’s total purchase price (including brokerage commissions
and other out-of-pocket expenses, if any) for the Common Shares so purchased (including brokerage commissions and other out-of-pocket
expenses, if any) (the “Buy-In Price”) over the product of (A) such number of New Warrant Shares that the Company
was required to deliver to the Holder by the Legend Removal Date and for which the Holder was required to purchase shares to timely satisfy
delivery requirements, multiplied by (B) the weighted average price at which the Holder sold that number of Common Shares.
If
this offer is accepted and this letter agreement is executed by you and the Company by the Execution Time, then on or before 8:00 a.m.,
Eastern Time, on the Trading Day following the date hereof, the Company shall issue a press release and submit to the Commission a Report
of Foreign Issuer on Form 6-K disclosing all material terms of the transactions contemplated hereunder, including this letter agreement
as an exhibit thereto with the Commission within the time required by the Exchange Act. From and after the issuance of such press release
or the filing of such Current Report on Form 6-K, as applicable, the Company represents to you that it shall have publicly disclosed
all material, non-public information delivered to you by the Company, or any of its respective officers, directors, employees or agents
in connection with the transactions contemplated hereunder. In addition, effective upon the issuance of such press release and/or the
filing of such Current Report on Form 6-K, the Company acknowledges and agrees that any and all confidentiality or similar obligations
under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors,
agents, employees or Affiliates on the one hand, and you and your Affiliates on the other hand, shall terminate. The Company represents,
warrants and covenants that, upon acceptance of this offer, the Warrant Shares issuable upon your exercise of the Existing Warrants shall
be issued free of any legends or restrictions on resale by Holder.
No
later than the second (2nd) Trading Day following the date of the public disclosure of the transactions hereunder, the closing (“Closing”)
shall occur at such location as the parties shall mutually agree. Settlement of the Warrant Shares shall occur via “Delivery Versus
Payment” (“DVP”) (i.e., on the Closing Date, the Company shall issue the Warrant Shares registered in the Holders’
names and addresses and released by the Transfer Agent directly to the account(s) identified by each Holder; upon receipt of such Warrant
Shares, the clearing firm shall promptly electronically deliver such Warrant Shares to the applicable Holder, and payment therefor shall
be made by the clearing firm by wire transfer to the Company in accordance with the following wire instructions: [_____].
The
date of the Closing of the exercise of the Existing Warrants shall be referred to as the “Closing Date”.
The
Company acknowledges and agrees that the obligations of the Holders under this letter agreement are several and not joint with the obligations
of any other holder or holders of warrants to purchase Common Shares of the Company that were issued concurrently with the Existing Warrants
(each, an “Other Holder”) under any other agreement related to the exercise of such warrants (“Other Warrant
Exercise Agreement”), and the Holder shall not be responsible in any way for the performance of the obligations of any Other
Holder or under any such Other Warrant Exercise Agreement. Nothing contained in this letter agreement, and no action taken by the Holders
pursuant hereto, shall be deemed to constitute the Holder and the Other Holders as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the Holder and the Other Holders are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by this letter agreement and the Company acknowledges that the Holder
and the Other Holders are not acting in concert or as a group with respect to such obligations or the transactions contemplated by this
letter agreement or any Other Warrant Exercise Agreement. The Company and the Holder confirm that the Holder has independently participated
in the Company’s solicitation of, and mutual negotiation of, the transactions contemplated hereby with the advice of its own counsel
and advisors. The Holder shall be entitled to independently protect and enforce its rights, including, without limitation, the rights
arising out of this letter agreement, and it shall not be necessary for any Other Holder to be joined as an additional party in any proceeding
for such purpose.
The
Company hereby represents and warrants as of the date hereof and covenants and agrees from and after the date hereof until six (6) months
after the date hereof, that none of the terms offered to any Other Holder with respect to any Other Warrant Exercise Agreement (or any
amendment, modification or waiver thereof) relating to warrants that were sold concurrently with the Existing Warrants, is or will be
more favorable to such Other Holder than those of the Holder and this letter agreement unless such terms are concurrently offered to
the Holder. If, and whenever on or after the date hereof until six (6) months after the date hereof, the Company enters into an Other
Warrant Exercise Agreement relating to warrants that were sold concurrently with the Existing Warrants, then (i) the Company shall provide
notice thereof to the Holder promptly following the occurrence thereof and (ii) the terms and conditions of this letter agreement shall
be, without any further action by the Holder or the Company, automatically amended and modified in an economically and legally equivalent
manner such that the Holder shall receive the benefit of the more favorable terms and/or conditions (as the case may be) set forth in
such Other Warrant Exercise Agreement (including the issuance of additional Warrant Shares), provided that upon written notice to the
Company at any time the Holder may elect not to accept the benefit of any such amended or modified term or condition, in which event
the term or condition contained in this letter agreement shall apply to the Holder as it was in effect immediately prior to such amendment
or modification as if such amendment or modification never occurred with respect to the Holder. The provisions of this paragraph shall
apply similarly and equally to each such Other Warrant Exercise Agreement.
***************
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Sincerely
yours, |
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Bruush
Oral Care Inc. |
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By:
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Name:
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Title:
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Accepted
and Agreed to:
Name
of Holder: ________________________________________________________
Signature
of Authorized Signatory of Holder: _________________________________
Name
of Authorized Signatory: _______________________________________________
Title
of Authorized Signatory: ________________________________________________
Number
of Existing Warrants: __________________
Aggregate
Exercise Price of Holder’s Existing Warrants being exercised: _________________
Existing
Warrants Beneficial Ownership Blocker: ☐ 4.99% or ☐ 9.99%
New
Warrants: (250% of total Existing Warrants being exercised): ___________
New
Warrants Beneficial Ownership Blocker: ☐ 4.99% or ☐ 9.99%
DTC
Instructions:
Annex
A
Representations,
Warranties and Covenants of the Company. The Company hereby makes the following representations and warranties to the Holder:
a) |
SEC
Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company
under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such
shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits
thereto and documents incorporated by reference therein “SEC Reports”). As of their respective dates, the SEC Reports
complied in all material respects with the requirements of the Exchange Act and none of the SEC Reports, when filed, contained any
untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has never been an
issuer subject to Rule 144(i) under the Securities Act. |
b) |
Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this letter agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this letter
agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly authorized by all
necessary action on the part of the Company and no further action is required by the Company, its board of directors or its stockholders
in connection therewith. This letter agreement has been duly executed by the Company and, when delivered in accordance with the terms
hereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms,
except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability
of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions
may be limited by applicable law. |
c) |
No
Conflicts. The execution, delivery and performance of this letter agreement by the Company and the consummation by the Company
of the transactions contemplated hereby do not and will not: (i) conflict with or violate any provision of the Company’s certificate
or articles of incorporation, bylaws or other organizational or charter documents; or (ii) conflict with, or constitute a default (or
an event that with notice or lapse of time or both would become a default) under, result in the creation of any liens, claims, security
interests, other encumbrances or defects upon any of the properties or assets of the Company in connection with, or give to others
any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any material
agreement, credit facility, debt or other material instrument (evidencing Company debt or otherwise) or other material understanding
to which such Company is a party or by which any property or asset of the Company is bound or affected; or (iii) conflict with or result
in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company is subject (including federal and state securities laws and regulations), or by which any property or
asset of the Company is bound or affected, except, in the case of each of clauses (ii) and (iii), such as could not have or reasonably
be expected to result in a material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise)
or results of operations of the Company, taken as a whole, or in its ability to perform its obligations under this letter agreement. |
d) |
Registration
Obligations. Within 20 calendar days after the Closing Date, the Company shall file a registration statement on Form S-3 (or other
appropriate form if the Company is not then S-3 eligible) providing for the resale of the New Warrant Shares by the holders of the
New Warrants (the “Resale Registration Statement”). The Company shall use commercially reasonable efforts to cause
the Resale Registration Statement to become effective within 45 calendar days following the Closing Date (or, in the event of a “full
review” by the Commission, within 75 calendar days following the Closing Date) and to keep the Resale Registration Statement
effective at all times until no holder of the New Warrants owns any New Warrants or New Warrant Shares. |
e) |
Trading
Market. The transactions contemplated under this letter agreement comply with all the rules and regulations of the Nasdaq Capital
Market. |
f) |
Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in
connection with the execution, delivery and performance by the Company of this letter agreement, other than: (i) the filings required
pursuant to this letter agreement; (ii) application(s) or notice to each applicable Trading Market for the listing of the New Warrants
and New Warrant Shares for trading thereon in the time and manner required thereby, and (iii) the filing of Form D with the Commission,
if applicable, and such filings as are required to be made under applicable state securities laws. |
g) |
Listing
of Common Shares. The Company hereby agrees to use best efforts to maintain the listing or quotation of the Common Shares on the
Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list or quote all of
the New Warrant Shares on such Trading Market and promptly secure the listing of all of the New Warrant Shares on such Trading Market.
The Company further agrees, if the Company applies to have the Common Shares traded on any other Trading Market, it will then include
in such application all of the New Warrant Shares, and will take such other action as is necessary to cause all of the New Warrant
Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company will then take all action reasonably
necessary to continue the listing and trading of its Common Shares on a Trading Market and will comply in all respects with the Company’s
reporting, filing and other obligations under the bylaws or rules of the Trading Market. The Company agrees to maintain the eligibility
of the Common Shares for electronic transfer through the Depository Trust Company or another established clearing corporation, including,
without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection
with such electronic transfer. |
h) |
Subsequent
Equity Sales. From the date hereof until the Effective Date, neither the Company nor any Subsidiary shall (A) issue, enter into
any agreement to issue or announce the issuance or proposed issuance of any Common Shares or Common Share Equivalents or (B) file any
registration statement or any amendment or supplement to any existing registration statement (other than (x) the Resale Registration
Statement referred to herein or (y) prospectus supplement to the Registration Statement to reflect the transactions contemplated hereby).
Notwithstanding the foregoing, this paragraph (h) shall not apply in respect of an Exempt Issuance. “Effective Date”
means the earliest of the date that (a) the initial Resale Registration Statement registering for resale all New Warrant Shares has
been declared effective by the Commission, (b) all of the New Warrant Shares have been sold pursuant to Rule 144 or may be sold pursuant
to Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144
and without volume or manner-of-sale restrictions, (c) following the one year anniversary of the Closing Date provided that a holder
of New Warrant Shares is not an Affiliate of the Company, or (d) all of the New Warrant Shares may be sold pursuant to an exemption
from registration under Section 4(a)(1) of the Securities Act without volume or manner-of-sale restrictions and legal counsel to the
Company has delivered to such holders a standing written unqualified opinion that resales may then be made by such holders of the New
Warrant Shares pursuant to such exemption which opinion shall be in form and substance reasonably acceptable to such holders. “Exempt
Issuance” means the issuance of (a) Common Shares or options to employees, officers or directors of the Company pursuant
to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a
majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company,
(b) warrants in connection with the transactions pursuant to this letter agreement and any Common Shares upon exercise of such warrants
and the Common Shares issuable upon the exercise or exchange of or conversion of any securities issued hereunder and/or other securities
exercisable or exchangeable for or convertible into Common Shares issued and outstanding on the date of this letter agreement, provided
that such securities have not been amended since the date of this letter agreement to increase the number of such securities or to
decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations)
or to extend the term of such securities, (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority
of the disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as
defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection
therewith during the prohibition period set forth in this paragraph (h), and provided that any such issuance shall only be to a Person
(or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in
a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment
of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital
or to an entity whose primary business is investing in securities, and (d) after thirty (30) days after the date hereof, Common Shares
or Common Share Equivalents in a private placement, provided that such securities are issued as “restricted securities”
(as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection
therewith during the prohibition period set forth in this paragraph (h). “Person” means an individual or corporation,
partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government
(or an agency or subdivision thereof) or other entity of any kind, for purposes of this paragraph (h). |
i) |
Form
D; Blue Sky Filings. If required, the Company agrees to timely file a Form D with respect to the New Warrants and New Warrant Shares
as required under Regulation D and to provide a copy thereof, promptly upon request of any Purchaser. The Company shall take such action
as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the New Warrants and New
Warrant Shares for, sale to the Holder at Closing under applicable securities or “Blue Sky” laws of the states of the United
States, and shall provide evidence of such actions promptly upon request of any Holder. |
Exhibit
10.2
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
COMMON
SHARE PURCHASE WARRANT
Bruush
Oral Care Inc.
Warrant
Shares: _______ |
Initial
Exercise Date: _______, 2023 |
THIS
COMMON SHARE PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _____________ or its assigns (the
“Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set
forth, at any time on or after the date hereof (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York
City time) on June 9, 2028 (the “Termination Date”) but not thereafter, to subscribe for and purchase from Bruush
Oral Care Inc., a corporation incorporated under the law of the Province of British Columbia, Canada (the “Company”),
up to ______ Common Shares (as subject to adjustment hereunder, the “Warrant Shares”). The purchase price of one Common
Share under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section
1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated
in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally
are open for use by customers on such day.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Shares” means the common shares of the Company, no par value, and any other class of securities into which such securities
may hereafter be reclassified or changed.
“Common
Share Equivalents” means any securities of the Company which would entitle the holder thereof to acquire at any time Common
Shares, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof.
“Trading
Day” means a day on which the Common Shares are traded on a Trading Market.
“Trading
Market” means any of the following markets or exchanges on which the Common Shares are listed or quoted for trading on the
date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New
York Stock Exchange (or any successors to any of the foregoing).
“Transfer
Agent” means Endeavor Trust Corporation, the current transfer agent of the Company, with a mailing address of 702 - 777 Hornby
Street, Vancouver, BC, V6Z 1S4, and an email address of admin@endeavortrust.com, and any successor transfer agent of the Company.
“Warrants”
means this Warrant and other Common Share purchase warrants issued by the Company.
Section
2. Exercise.
a)
Exercise of Warrant. Subject to the provisions of Section 2(e) herein, exercise of the purchase rights represented by this Warrant
may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by
delivery to the Company of a duly executed PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise substantially
in the form annexed hereto as Exhibit A (the “Notice of Exercise”). Within the earlier of (i) two (2) Trading Days
and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date
of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice
of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified
in Section 2(c) below is specified in the applicable Notice of Exercise. For clarification purposes, any reference to a cashless exercise
in this Warrant shall include, without limitation, an “alternative cashless exercise,” as contemplated in Section 2(c) below.
No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization)
of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically
surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has
been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading
Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases
of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant
Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall
maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection
to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this
Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated
on the face hereof.
b)
Exercise Price. The exercise price per Common Share under this Warrant shall be $3.33, subject to adjustment hereunder
(the “Exercise Price”).
c)
Cashless Exercise. If at any time after the six month anniversary of the Initial Exercise Date, there is no effective registration
statement registering, or the prospectus contained therein is not available for the resale of the Warrant Shares by the Holder, then
this Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the Holder
shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
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(A)
= |
as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of
Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed
and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined
in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder,
either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of
the Common Shares on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of
the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading
hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of
“regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable
Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered
pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
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(B)
= |
the
Exercise Price of this Warrant, as adjusted hereunder; and |
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(X)
= |
the
number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such
exercise were by means of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the characteristics of the Warrants being exercised, and the holding period of the Warrant
Shares being issued may be tacked on to the holding period of this Warrant. Without limiting any other provision in the Transaction Documents,
assuming (i) the Holder is not an Affiliate of the Company, and (ii) all of the applicable conditions of Rule 144 promulgated under the
Securities Act with respect to Holder and the Warrant Shares are met in the case of such a cashless exercise, the Company agrees that
the Company will cause the removal of the legend from such Warrant Shares (including by delivering an opinion of the Company’s
counsel to the Company’s transfer agent at its own expense to ensure the foregoing), and the Company agrees that the Holder is
under no obligation to sell the Warrant Shares issuable upon the exercise of the Warrant prior to removing the legend. The Company agrees
not to take any position contrary to this Section 2(c). The Company agrees not to take any position contrary to this Section 2(c).
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Shares
are then listed or quoted on a Trading Market, the bid price of the Common Shares for the time in question (or the nearest preceding
date) on the Trading Market on which the Common Shares are then listed or quoted as reported by Bloomberg (based on a Trading Day from
9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted
average price of the Common Shares for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Shares
are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Shares are then reported on The Pink Open Market
(or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per Common Share so
reported, or (d) in all other cases, the fair market value of a Common Share as determined by an independent appraiser selected in good
faith by the Holders of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Shares are then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Shares for such date (or the nearest preceding date)
on the Trading Market on which the Common Shares are then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from
9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted
average price of the Common Shares for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Shares
are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Shares are then reported on The Pink Open Market
(or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per Common Share so
reported, or (d) in all other cases, the fair market value of a Common Share as determined by an independent appraiser selected in good
faith by the Holders of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.
Notwithstanding
anything herein to the contrary, in the event that, on the Termination Date, there is no effective registration statement registering,
or no current prospectus available for the issuance of, the Warrant Shares to the Holder, this Warrant shall be automatically exercised
via cashless exercise pursuant to this Section 2(c) on such Termination Date.
Notwithstanding
anything to the contrary herein, the Holder may also effect an “alternative cashless exercise” on or after the Initial Exercise
Date. In such event, the aggregate number of Warrant Shares issuable in such alternative cashless exercise pursuant to any given Notice
of Exercise electing to effect an alternative cashless exercise shall equal the product of (x) the aggregate number of Warrant Shares
that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a
cash exercise rather than a cashless exercise and (y) 0.5.
d)
Mechanics of Exercise.
i.
Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by
the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale
of the Warrant Shares by the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale
limitations pursuant to Rule 144 (assuming cashless exercise of the Warrants), and otherwise by physical delivery of a certificate, registered
in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder
is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earliest
of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the
aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery
to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice
of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect
to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate
Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) two (2) Trading Days and (ii) the
number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails for
any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company
shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise
(based on the VWAP of the Common Shares on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per
Trading Day on the third (3rd) Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant
Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer
agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard
Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary
Trading Market with respect to the Common Shares as in effect on the date of delivery of the Notice of Exercise.
ii.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of
a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant
evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
iii.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section
2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to
the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, Common
Shares to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise
(a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the Common Shares purchased exceeds (y) the amount obtained by multiplying
(1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times
(2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either
reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such
exercise shall be deemed rescinded) or deliver to the Holder the number of Common Shares that would have been issued had the Company
timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common Shares having a total
purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of Common Shares with an aggregate sale price giving
rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to
pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of
the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to
pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance
and/or injunctive relief with respect to the Company’s failure to timely deliver Common Shares upon exercise of the Warrant as
required pursuant to the terms hereof.
v.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.
vi.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company,
and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto as Exhibit B duly executed by the Holder and the
Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto.
The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository
Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of
the Warrant Shares.
vii.
Closing of Books. The Company will not close its shareholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
e)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the
right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance
after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other
Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of Common Shares beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of Common
Shares issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of
Common Shares which would be issuable upon (i) exercise of the remaining, unexercised portion of this Warrant beneficially owned by the
Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of
any other securities of the Company (including, without limitation, any other Common Share Equivalents) subject to a limitation on conversion
or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties.
Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance
with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that
the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder
is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in
this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder
together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion
of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant
is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which
portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation
to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall
be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes
of this Section 2(e), in determining the number of outstanding Common Shares, a Holder may rely on the number of outstanding Common Shares
as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more
recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the
number of Common Shares outstanding. Upon the written or oral request of a Holder, the Company shall within one (1) Trading Day confirm
orally and in writing to the Holder the number of Common Shares then outstanding. In any case, the number of outstanding Common Shares
shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder
or its Affiliates or Attribution Parties since the date as of which such number of outstanding Common Shares was reported. The “Beneficial
Ownership Limitation” shall be [4.99/9.99%] of the number of Common Shares outstanding immediately after giving effect to the
issuance of Common Shares issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the
Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds
9.99% of the number of Common Shares outstanding immediately after giving effect to the issuance of Common Shares upon exercise of this
Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership
Limitation will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this
paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct
this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein
contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained
in this paragraph shall apply to a successor holder of this Warrant.
Section
3. Certain Adjustments.
a)
Share Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a share dividend or otherwise
makes a distribution or distributions on Common Shares or any other equity or equity equivalent securities payable in Common Shares (which,
for avoidance of doubt, shall not include any Common Shares issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding
Common Shares into a larger number of shares, (iii) combines (including by way of reverse share split) outstanding Common Shares into
a smaller number of shares, or (iv) issues by reclassification of Common Shares any shares of capital stock of the Company, then in each
case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of Common Shares (excluding treasury
shares, if any) outstanding immediately before such event and of which the denominator shall be the number of Common Shares outstanding
immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such
that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become
effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution and
shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
b)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants,
issues or sells any Common Share Equivalents or rights to purchase shares, warrants, securities or other property pro rata to all (or
substantially all) of the record holders of any class of Common Shares (the “Purchase Rights”), then the Holder will
be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have
acquired if the Holder had held the number of Common Shares acquirable upon complete exercise of this Warrant (without regard to any
limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which
a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record
holders of Common Shares are to be determined for the grant, issue or sale of such Purchase Rights (provided, however,
that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the
Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial
ownership of such Common Shares as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held
in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation).
c)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets) to all (or substantially all) holders of Common Shares, by way of
return of capital or otherwise (including, without limitation, any distribution of cash, shares or other securities, property or options
by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of Common Shares acquirable upon
complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of Common Shares are to be determined for the participation in such Distribution (provided,
however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent
(or in the beneficial ownership of any Common Shares as a result of such Distribution to such extent) and the portion of such Distribution
shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder
exceeding the Beneficial Ownership Limitation).
d)
Fundamental Transaction. If, at any time while the Warrants are outstanding,
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(i) |
the
Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into
another person; |
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(ii) |
the
Company (and all of the Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer,
conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions; |
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(iii) |
any
direct or indirect purchase offer, tender offer or exchange offer (whether by the Company or another person) is completed pursuant
to which holders of Common Shares are permitted to sell, tender or exchange their shares for other securities, cash or property and
has been accepted by the holders of 50% or more of the Company’s Common Shares or 50% or more of the total voting power of
the Company’s Common Shares; |
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(iv) |
the
Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization
of Common Shares or any compulsory share exchange pursuant to which the Common Shares are effectively converted into or exchanged
for other securities, cash or property, or |
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(v) |
the
Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another person
or group of persons whereby such other person or group acquires 50% or more of the Company’s Common Shares or 50% or more of
the total voting power of the Company’s Common Shares (each a “Fundamental Transaction”), |
then,
upon any subsequent exercise of a Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable
upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to
any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, or depositary shares representing those shares, and any additional
consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of
the number of Common Shares for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to
any Beneficial Ownership Limitation in Section 2(e)). For purposes of any such exercise, the determination of the Exercise Price shall
be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect
of one Common Share in such Fundamental Transaction and the Company shall apportion the Exercise Price among the Alternate Consideration
in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common
Shares are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall
be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction.
Notwithstanding
anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at
the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction
(or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder
by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of
this Warrant on the date of the consummation of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction
is not within the Company’s control, including not approved by the Company’s Board of Directors, Holder shall only be entitled
to receive from the Company or any Successor Entity the same type or form of consideration (and in the same proportion), at the Black
Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of Common Shares of the Company
in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof,
or whether the holders of Common Shares are given the choice to receive from among alternative forms of consideration in connection with
the Fundamental Transaction; provided, further, that if holders of Common Shares of the Company are not offered or paid any consideration
in such Fundamental Transaction, such holders of Common Shares will be deemed to have received common shares of the Successor Entity
(which Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction.
“Black
Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV”
function on Bloomberg determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting
(A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement
of the applicable contemplated Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100%
and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the
Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying
price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus
the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period
beginning on the Trading Day immediately preceding the public announcement of the applicable contemplated Fundamental Transaction (or
the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant
to this Section 3(d) and (D) a remaining option time equal to the time between the date of the public announcement of the applicable
contemplated Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will
be made by wire transfer of immediately available funds (or such other consideration) within the later of (i) five (5) Business Days
of the Holder’s election and (ii) the date of consummation of the Fundamental Transaction.
The
Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor
Entity”), to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents
in accordance with the provisions of this Section 3(d) pursuant to written agreements in form and substance reasonably satisfactory to
the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of
the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially
similar in form and substance to this Warrant that is exercisable for a corresponding number of shares of capital stock of such Successor
Entity (or its parent entity) equivalent to the Common Shares acquirable and receivable upon exercise of this Warrant (without regard
to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction and with an exercise price which applies the
exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Common Shares pursuant to
such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise
price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental
Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction,
the Successor Entity shall be added to the term “Company” under this Warrant (so that from and after the occurrence or consummation
of such Fundamental Transaction, each and every provision of this Warrant and the other Transaction Documents referring to the “Company”
shall refer instead to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor
Entity or Successor Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto
and the Successor Entity or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant and
the other Transaction Documents with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally,
had been named as the Company herein. For the avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this
Section 3(d) regardless of whether the Company has sufficient authorized Common Shares for the issuance of Warrant Shares.
e)
Share Combination Event Adjustment. In addition to the adjustments set forth in Section 3(a) above, if at any time and from time
to time on or after the Issuance Date there occurs any share split, share dividend, share combination recapitalization or other similar
transaction involving the Common Shares (each, a “Share Combination Event”, and such date thereof, the “Share
Combination Event Date”) and the lowest VWAP during the 5 consecutive Trading Days commencing on the Share Combination Event
Date (the “Event Market Price”) (provided if the Share Combination Event is effective after close of Trading on the
primary Trading Market, then commencing on the next Trading Day which period shall be the “Share Combination Adjustment Period”)
is less than the Exercise Price then in effect (after giving effect to the adjustment in clause 3(a) above), then at the close of trading
on the primary Trading Market on the last day of the Share Combination Adjustment Period, the Exercise Price then in effect on such fifth
(5th) Trading Day shall be reduced (but in no event increased) to the Event Market Price and the number of Warrant Shares issuable hereunder
shall be increased such that the aggregate Exercise Price payable hereunder, after taking into account the decrease in the Exercise Price,
shall be equal to the aggregate Exercise Price on the Issuance Date. For the avoidance of doubt, if the adjustment in the immediately
preceding sentence would otherwise result in an increase in the Exercise Price hereunder, no adjustment shall be made, and if this Warrant
is exercised, on any given Exercise Date during the Share Combination Adjustment Period, solely with respect to such portion of this
Warrant exercised on such applicable Exercise Date, such applicable Share Combination Adjustment Period shall be deemed to have ended
on, and included, the Trading Day immediately prior to such Exercise Date and the Event Market Price on such applicable Exercise Date
will be the lowest VWAP of the Common Shares immediately during such the Share Combination Adjustment Period prior to such Exercise Date
and ending on, and including the Trading Day immediately prior to such Exercise Date.
f)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of Common Shares deemed to be issued and outstanding as of a given date shall
be the sum of the number of Common Shares (excluding treasury shares, if any) issued and outstanding.
g)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on
the Common Shares, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Shares, (C) the
Company shall authorize the granting to all holders of the Common Shares rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights, (D) the approval of any shareholders of the Company shall be required in connection with
any reclassification of the Common Shares, any consolidation or merger to which the Company is a party, any sale or transfer of all or
substantially all of its assets, or any compulsory share exchange whereby the Common Shares are converted into other securities, cash
or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of
the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email address as it shall
appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter
specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption,
rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Shares of record to be entitled
to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected
that holders of the Common Shares of record shall be entitled to exchange their Common Shares for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver
such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified
in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding
the Company, the Company shall simultaneously file such notice with the Commission pursuant to a Report of Foreign Private Issuer on
Form 6-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective
date of the event triggering such notice except as may otherwise be expressly set forth herein.
h)
Voluntary Adjustment by Company. Subject to the rules and regulations of the Trading Market and the consent of the Holder, the
Company may at any time during the term of this Warrant reduce the then current Exercise Price to any amount and for any period of time
deemed appropriate by the board of directors of the Company.
Section
4. Transfer of Warrant.
a)
Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof
and to the provisions of Section 4.1 of the Purchase Agreement, this Warrant and all rights hereunder (including, without limitation,
any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company
or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by
the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such
surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee
or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to
the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding
anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder
has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days
of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned
in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of
the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by
the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Initial Exercise Date of
this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the
“Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
d)
Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer
of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities Act and under
applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public
information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the Holder or
transferee of this Warrant, as the case may be, comply with the provisions of Section 5.7 of the Purchase Agreement.
e)
Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant
and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to
or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities
law, except pursuant to sales registered or exempted under the Securities Act.
Section
5. Miscellaneous.
a)
No Rights as Shareholder until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting the rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments contemplated pursuant to Sections 2(d)(i) and 2(d)(iv), in no event, including if the Company
is for any reason unable to issue and deliver Warrant Shares upon exercise of this Warrant as required pursuant to the terms hereof,
shall the Company be required to net cash settle an exercise of this Warrant or cash settle in any other form.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any share certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or share certificate, if mutilated, the
Company will make and deliver a new Warrant or share certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or share certificate.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading
Day.
d)
Authorized Shares.
The
Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Shares
a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all
such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Trading Market upon which the Common Shares may be listed. The Company covenants
that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise
of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly
issued, fully paid and nonassessable (which means that no further sums are required to be paid by the holders thereof in connection with
the issue thereof) and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes
in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof,
as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action that would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e)
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed
by and construed and enforced in accordance with the law of the State of New York. Each party agrees that all legal proceedings concerning
the interpretations, enforcement and defense of the transactions contemplated by this Warrant (whether brought against a party hereto
or their respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively
in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts sitting in the City and County of New York, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action
or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process
and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail
or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Warrant and agrees
that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence an action, suit or
proceeding to enforce any provisions of this Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by
the other party for their reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding. Notwithstanding the foregoing, nothing in this paragraph shall limit or restrict the federal
district court in which a Holder may bring a claim under the federal securities laws.
f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and
the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. No provision of this Warrant
shall be construed as a waiver by the Holder of any rights which the Holder may have under the federal securities laws and the rules
and regulations of the Commission thereunder. Without limiting any other provision of this Warrant or the Purchase Agreement, if the
Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder,
the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to,
reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant
hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h)
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without
limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight
courier service, addressed to the Company, at Bruush Oral Care Inc., 128 West Hastings Street, Unit 210, Vancouver, British Columbia
V6B 1G8, Canada, Attention: Aneil Singh Manhas, Chief Executive Officer, E-mail: aneil@bruush.com, or such other email address or address
as the Company may specify for such purposes by notice to the Holders. Any and all notices or other communications or deliveries to be
provided by the Company hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight
courier service addressed to each Holder at the e-mail address or address of such Holder appearing on the books of the Company. Any notice
or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if
such notice or communication is delivered via e-mail at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City
time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication is delivered via e-mail
at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any
Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service,
or (iv) upon actual receipt by the party to whom such notice is required to be given. To the extent that any notice provided hereunder
constitutes, or contains, material, non-public information regarding the Company, the Company shall simultaneously file such notice with
the Commission pursuant to a Report of Foreign Private Issuer on Form 6-K.
i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Shares or as a shareholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by the Holder or holder of Warrant Shares.
l)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on
the one hand, and the Holder of this Warrant, on the other hand.
m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
n)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
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NOTICE
OF EXERCISE
To:
bruush oral care inc.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
[
] in lawful money of the United States; or
[
] if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
(4)
Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the
Securities Act of 1933, as amended.
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: ________________________________________________________________________
Signature
of Authorized Signatory of Investing Entity: _________________________________________________
Name
of Authorized Signatory: ___________________________________________________________________
Title
of Authorized Signatory: ____________________________________________________________________
Date:
________________________________________________________________________________________
EXHIBIT
B
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase
shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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Phone
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Email
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Dated:
_______________ __, ______
Holder’s
Signature: ______________________
Holder’s
Address: _______________________
Bruush Oral Care (NASDAQ:BRSH)
過去 株価チャート
から 5 2024 まで 6 2024
Bruush Oral Care (NASDAQ:BRSH)
過去 株価チャート
から 6 2023 まで 6 2024