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 |
November
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
Waiver
Letter
As
previously disclosed on a Report of Foreign Issuer on Form 6-K submitted to the Securities and Exchange Commission on October 6, 2023,
Bruush Oral Care Inc. (the “Company”) entered into a private placement transaction (the “Private Placement”),
pursuant to a Securities Purchase Agreement (the “SPA”) with Generating Alpha Ltd. (the “Purchaser”),
dated October 2, 2023, for aggregate gross proceeds of $5,010,000.
In
connection with the Private Placement, on November 15, 2023, the Company entered into a letter agreement (the
“Waiver”) with the Purchaser. Pursuant to the Waiver, the obligation of the Company to change its transfer agent
from Endeavor Trust Corporation to VStock Transfer LLC or Continental Stock Transfer & Trust Company within 30 days of October
2, 2023 pursuant to Section 4(b) of the SPA will be deemed satisfied if the Company changes its transfer agent from Endeavor Trust
Corporation to Odyssey Transfer US Inc. by December 31, 2023 (the “Modifications”). Further to the
foregoing, the Purchaser agreed to pay $380,000 to the Company (the “Additional Funding Amount”) and waive the
payment by the Company to the Purchaser of the $120,000.00 in penalty amounts that would have been owing under Section 4(b) of the
SPA for failure to have changed its transfer agent as previously required (the “Fee Waiver”). In consideration
for the Modifications, the Additional Funding Amount and the Fee Waiver, the Company agreed to (i) issue to the Purchaser a
prefunded warrant (the “Pre-Funded Warrant”) to purchase 6,250,000 common shares of the Company (the
“Waiver Shares”), and (ii) and cause the Waiver Shares to be included in a registration statement of the Company
filed with the Securities and Exchange Commission with five business days of the date of the Waiver.
The
description of the Waiver and Pre-Funded Warrant set forth above is qualified in its entirety by reference to the full text of the Waiver
and Pre-Funded Warrant, respectively, which are attached hereto as Exhibits 10.1 and 10.2, respectively.
Minimum
Bid Price
On
November 15, 2023, the Company received written notice (the “Notice”) from the Listing Qualifications Department of the Nasdaq
Stock Market, LLC (“Nasdaq”) notifying the Company that, based on the closing bid price of the Company’s common shares,
for the last 30 consecutive trading days, the Company no longer complies with the minimum bid price requirement for continued listing
on the Nasdaq Capital Market. Nasdaq Listing Rule 5550(a)(2) requires listed securities to maintain a minimum bid price of $1.00 per
share (the “Minimum Bid Price Requirement”), and Nasdaq Listing Rule 5810(c)(3)(A) provides that a failure to meet
the Minimum Bid Price Requirement exists if the deficiency continues for a period of 30 consecutive trading days.
The
Notice has no immediate effect on the listing of the Company’s common shares on the Nasdaq Capital Market. Pursuant to the Nasdaq
Listing Rules, the Company has been provided an initial compliance period of 180 calendar days to regain compliance with the Minimum
Bid Price Requirement. To regain compliance, the closing bid price of the Company’s common shares must be at least $1.00 per share
for a minimum of 10 consecutive trading days prior to May 13, 2024, and the Company must otherwise satisfy The Nasdaq Capital Market’s
requirements for listing.
If
the Company does not regain compliance by May 13, 2024, the Company may be eligible for an additional time. To qualify, the Company would
be required, among other things, to meet the continued listing requirement for the market value of its publicly held shares, as well
as all other standards for initial listing on the Nasdaq Capital Market, with the exception of the Minimum Bid Price Requirement, and
would need to provide written notice of its intention to cure the bid price deficiency during the second compliance period. If the Company
does not regain compliance within the allotted compliance period(s), including any extensions that may be granted by Nasdaq, Nasdaq will
provide notice that the Company’s common shares will be subject to delisting. The Company would then be entitled to appeal Nasdaq’s
determination to a Nasdaq Listing Qualifications Panel and request a hearing.
The
Company intends to monitor the closing bid price of the common shares and consider its available options to resolve the noncompliance
with the Minimum Bid Price Requirement. There can be no assurance that the Company will be able to regain compliance with the Nasdaq
Capital Market’s continued listing requirements or that Nasdaq will grant the Company a further extension of time to regain compliance,
if applicable.
Exhibits:
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: |
November
17, 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
November
15, 2023
Generating
Alpha, Ltd.
Delivered
Via Email
Reference
is made to that certain Securities Purchase Agreement, dated as of October 2, 2023 (the “Purchase Agreement”), between
the Company and Generating Alpha Ltd. (together with any of its successors and assigns, the “Investor”), pursuant
to which the Company issued to the Investor certain common shares of the Company, having no par value (the “Common Shares”),
and certain warrants to purchase Common Shares.
Pursuant
to this letter agreement (this “Letter Agreement”), the Company is requesting the Investor’s agreement to the
modification of certain provisions of the Purchase Agreement, as follows: the obligation of the Company to change its transfer agent
from Endeavor Trust Corporation to VStock Transfer LLC or Continental Stock Transfer & Trust Company within 30 days of October 2,
2023 pursuant to Section 4(b) of the Agreement will be deemed satisfied if the Company changes its transfer agent from Endeavor Trust
Corporation to Odyssey Trust Company by December 31, 2023 (the “Modifications”). For the avoidance of doubt, failure
by the Company to appoint Odyssey Trust Company as its transfer agent by December 31, 2023 shall result in the Company being required
to pay the Investor a sum of $100,000 and then a weekly sum of $10,000 for every week the Company has failed to appointment Odyssey Trust
Company thereafter in accordance with Section 4(b) of the Purchase Agreement.
Further
to the foregoing the Investor shall pay to the Company on the date hereof or soon thereafter the following wire instructions the net
amount of $380,000.00 (the “Additional Funding Amount”) and waive the payment by the Company to the Investor of the
$120,000.00 in penalty amounts that would have been owing under Section 4(b) for failure to have changed its transfer agent as previously
required to VStock Transfer LLC or Continental Stock Transfer & Trust Company (the “Fee Waiver”):
In
consideration for the Modifications, the Additional Funding Amount and the Fee Waiver the Company shall (i) issue to the Investor a prefunded
warrant (in the form attached hereto as Exhibit A, the “Waiver Warrant”) to receive 6,250,000 Common Shares the “Waiver
Shares”) in accordance with the terms thereof, and (ii) and cause the Waiver Shares to be included in a registration statement
of the Company filed with the Securities and Exchange Commission with five business days of the date hereof. The Exhibit C Irrevocable
Instructions shall be updated to include the Waiver Warrant.
By
signing below, you hereby represent on behalf of the Investor that you agree to the above items.
This
Letter Agreement contains the entire understanding between and among the parties and supersedes any prior understandings and agreements
among them respecting the subject matter of this Letter Agreement. In case any provision of this Letter Agreement shall be held to be
invalid, illegal or unenforceable, such provision shall be severable from the rest of this Letter Agreement, and the validity legality
and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
The
parties hereby consent and agree that if this Letter Agreement shall at any time be deemed by the parties for any reason insufficient,
in whole or in part, to carry out the true intent and spirit hereof or thereof, the parties will execute or cause to be executed such
other and further assurances and documents as in the reasonable opinion of the parties may be reasonably required in order more effectively
to accomplish the purposes of this Letter Agreement. By signing below, the parties hereto represent and agree that, prior to executing
this Letter Agreement, they have had the opportunity to consult with independent counsel concerning the terms of this Letter Agreement.
This
Letter Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including .pdf or any electronic
signature complying with the U.S. federal ESIGN Act of 2000, for example, www.docusign.com) or other transmission method and any counterpart
so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
Please
indicate confirmation of the terms provided herein by executing and returning this Letter Agreement in the space provided below.
[SIGNATURE
PAGE FOLLOWS]
Very
truly yours,
BRUUSH ORAL CARE, INC. |
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By:
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Name:
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Aneil
Manhas |
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Title:
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CEO |
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Acknowledged and Agreed: |
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GENERATING ALPHA LTD. |
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By:
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Name:
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Maria
Cano |
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Title:
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Director |
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[Signature Page to Target Waiver]
EXHIBIT
A
FORM
OF WAIVER WARRANT
Exhibit
10.2
NEITHER
THIS SECURITY NOR THE SECURITIES AS TO WHICH THIS SECURITY MAY BE EXERCISED 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 AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. 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.
PREFUNDED
COMMON SHARE PURCHASE WARRANT
BRUUSH
ORAL CARE, INC.
Warrant
Shares: 6,250,000
Date
of Issuance: November 15, 2023 (“Issuance Date”)
This
PREFUNDED COMMON SHARE PURCHASE WARRANT (the “Warrant”) certifies that, for value received (in connection with the
issuance of the Shares (as defined in the Purchase Agreement (as defined below) to the Holder (as defined below), Generating Alpha Ltd.,
a Saint Kitts and Nevis Company (including any permitted and registered 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 of issuance
hereof, BRUUSH ORAL CARE, INC., a corporation incorporated in British Columbia, Canada, with principal executive offices located
at 128 West Hastings Street, Unit 210 Vancouver, British Columbia V6B 1G8 (the “Company”), 6,250,000
Common Shares (the “Warrant Shares”) (whereby such number may be adjusted from time to time pursuant to the
terms and conditions of this Warrant) at the Exercise Price per share then in effect. This Warrant is issued by the Company as of the
date hereof in connection with that certain letter agreement dated as of November 15, 2023, relating to that certain securities purchase
agreement dated as of October 2, 2023, by and among the Company and the Holder (the “Purchase Agreement”).
Capitalized
terms used in this Warrant shall have the meanings set forth in the Purchase Agreement unless otherwise defined in the body of this Warrant
or in Section 12 below. For purposes of this Warrant, the term “Exercise Price” shall mean $0.0001, subject to adjustment
as provided herein, and the term “Exercise Period” shall mean the period commencing on the Issuance Date and ending
on 5:00 p.m. eastern standard time on the five-year anniversary thereof. The amount of funds to be paid to the Company upon the exercise
of this Warrant shall be zero as this is a warrant which has been fully paid for.
1. EXERCISE
OF WARRANT.
(a) Mechanics
of Exercise. Subject to the terms and conditions hereof, the rights represented by this Warrant may be exercised in whole or in part
at any time or times during the Exercise Period by delivery of a written notice, in the form attached hereto as Exhibit A (the
“Exercise Notice”), of the Holder’s election to exercise this Warrant. The Holder shall not be required to deliver
the original Warrant in order to effect an exercise hereunder. Partial exercises of this Warrant resulting in issuance of a portion of
the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares issued
hereunder in an amount equal to the applicable number of Warrant Shares issued. On or before the second Trading Day (the “Warrant
Share Delivery Date”) following the date on which the Holder sent the Exercise Notice to the Company or the Company’s
transfer agent together with the Exercise Notice, the “Exercise Delivery Documents”), the Company shall (or direct
its transfer agent to) issue and dispatch by overnight courier to the address as specified in the Exercise Notice, a certificate, registered
in the Company’s share register in the name of the Holder or its designee, for the number of Common Shares to which the Holder
is entitled pursuant to such exercise (or deliver such Common Shares in electronic format if requested by the Holder). Upon delivery
of the Exercise Delivery Documents, 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 certificates evidencing
such Warrant Shares. If this Warrant is submitted in connection with any exercise and the number of Warrant Shares represented by this
Warrant submitted for exercise is greater than the number of Warrant Shares being acquired upon an exercise, then the Company shall as
soon as practicable and in no event later than three Business Days after any exercise and at its own expense, issue a new Warrant (in
accordance with Section 6) representing the right to issue the number of Warrant Shares issuable immediately prior to such exercise under
this Warrant, less the number of Warrant Shares with respect to which this Warrant is exercised.
If
the Company fails to cause its transfer agent to transmit to the Holder the respective Common Shares by the respective Warrant Share
Delivery Date, then the Holder will have the right to rescind such exercise in Holder’s sole discretion in addition to all other
rights and remedies at law, under this Warrant, or otherwise, and such failure shall also be deemed a material breach of this Warrant
and the Agreement.
(b) No
Fractional Shares. No fractional shares shall be issued upon the exercise of this Warrant as a consequence of any adjustment pursuant
hereto. All Warrant Shares (including fractions) issuable upon exercise of this Warrant may be aggregated for purposes of determining
whether the exercise would result in the issuance of any fractional share. If, after aggregation, the exercise would result in the issuance
of a fractional share, the Company shall, in lieu of issuance of any fractional share, pay the Holder otherwise entitled to such fraction
a sum in cash equal to the product resulting from multiplying the then-current fair market value of a Warrant Share by such fraction.
(c)
Holder’s Exercise Limitations. Notwithstanding anything to the contrary contained herein, 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 1 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 (the “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 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, nonexercised 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 1(c), 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 Holder is solely responsible for any schedules
required to be filed in accordance therewith. 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
1(c), 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 Company’s transfer agent setting forth the
number of Common Shares outstanding. Upon the written or oral request of a Holder, the Company shall within two Trading Days 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% of the number of Common Shares outstanding at the time of the respective calculation hereunder.
The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
(d)
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 Company’s transfer agent to transmit to the Holder the Warrant Shares in accordance
with the provisions of this Warrant (including but not limited to Section 1(a) above pursuant to an exercise on or before the respective
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, within one (1) business day of Holder’s request, the amount, if any, by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the Common Shares so purchased exceeds (y) the product of (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 within one (1) business day of Holder’s request 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, or effectuates a cashless exercise hereunder for, 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.
2. ADJUSTMENTS.
The Exercise Price and the number of Warrant Shares shall be adjusted from time to time as follows:
(a) Distribution
of Assets. If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets)
to holders of Common Shares, by way of return of capital or otherwise (including without limitation any distribution of cash, stock or
other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement or other similar transaction
(a “Distribution”), at any time after the issuance of this Warrant, then, in each such case:
(i) any
Exercise Price in effect immediately prior to the close of business on the record date fixed for the determination of holders of Common
Shares entitled to receive the Distribution shall be reduced, effective as of the close of business on such record date, to a price determined
by multiplying such Exercise Price by a fraction (i) the numerator of which shall be the Closing Sale Price of the Common Shares on the
Trading Day immediately preceding such record date minus the value of the Distribution (as determined in good faith by the Company’s
Board of Directors) applicable to one Common Share, and (ii) the denominator of which shall be the Closing Sale Price of the Common Shares
on the Trading Day immediately preceding such record date; and
(ii) the
number of Warrant Shares shall be increased to a number of shares equal to the number of Common Shares obtainable immediately prior to
the close of business on the record date fixed for the determination of holders of Common Shares entitled to receive the Distribution
multiplied by the reciprocal of the fraction set forth in the immediately preceding clause (i); provided, however, that in the event
that the Distribution is of shares of common stock of a company (other than the Company) whose common stock is traded on a national securities
exchange or a national automated quotation system (“Other Shares of Common Stock”), then the Holder may elect to receive
a warrant to have issued Other Shares of Common Stock in lieu of an increase in the number of Warrant Shares, the terms of which shall
be identical to those of this Warrant, except that such warrant shall be exercisable into the number of shares of Other Shares of Common
Stock that would have been payable to the Holder pursuant to the Distribution had the Holder exercised this Warrant immediately prior
to such record date and with an aggregate exercise price equal to the product of the amount by which the exercise price of this Warrant
was decreased with respect to the Distribution pursuant to the terms of the immediately preceding clause (i) and the number of Warrant
Shares calculated in accordance with the first part of this clause (ii).
(b) Anti-Dilution
Adjustments to Exercise Price. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding,
shall sell or grant any option to purchase, or sell or grant any right to reprice, or otherwise dispose of or issue (or announce any
offer, sale, grant or any option to purchase or other disposition) any Common Shares or securities entitling any person or entity (which,
for purposes of clarification, shall not include any Common Shares issued to the Holder pursuant to (i) any other security of the Company
currently held by Holder, (ii) any other security of the Company issued to Holder on or after the Issuance Date, or (iii) any other agreement
entered into between the Company and Holder) to acquire Common Shares (upon conversion, exercise or otherwise), at an effective price
per share less than the then Exercise Price (such lower price, the “Base Share Price” and such issuances collectively, a
“Dilutive Issuance”) (if the holder of the Common Shares or Common Share Equivalents so issued shall at any time, whether
by operation of purchase price adjustments, elimination of an applicable floor price for any reason in the future (including but not
limited to the passage of time or satisfaction of certain condition(s)), reset provisions, floating conversion, exercise or exchange
prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled or
potentially entitled to receive Common Shares at an effective price per share which is less than the Exercise Price at any time while
such Common Shares or Common Share Equivalents are in existence, such issuance shall be deemed to have occurred for less than the Exercise
Price on such date of the Dilutive Issuance (regardless of whether the Common Shares or Common Share Equivalents are (i) subsequently
redeemed or retired by the Company after the date of the Dilutive Issuance or (ii) actually converted or exercised at such Base Share
Price), then the Exercise Price shall be reduced at the option of the Holder and only reduced to equal the Base Share Price. The Company
shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Shares or Common Share Equivalents
subject to this Section 2(b), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion
price and other pricing terms (such notice the “Dilutive Issuance Notice”). For purposes of clarification, whether or not
the Company provides a Dilutive Issuance Notice pursuant to this Section 2(b), upon the occurrence of any Dilutive Issuance, after the
date of such Dilutive Issuance the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless
of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise.
(c)
Subdivision or Combination of the Common Shares. If the Company at any time on or after the issuance date of this Warrant (“Issuance
Date”), subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its outstanding Common
Shares into a greater number of shares, the Exercise Price in effect immediately prior to such subdivision will be proportionately reduced
and the number of Warrant Shares will be proportionately increased. Any adjustment under this section shall become effective at the close
of business on the date the subdivision or combination becomes effective. Each such adjustment of the Exercise Price shall be calculated
to the nearest one-hundredth of a cent. Such adjustment shall be made successively whenever any event covered by this section shall occur.
3. FUNDAMENTAL
TRANSACTIONS. If, at any time while this Warrant is outstanding, (i) the Company effects any merger of the Company with or into another
entity and the Company is not the surviving entity (such surviving entity, the “Successor Entity”), (ii) the Company
effects any sale of all or substantially all of its assets in one or a series of related transactions, (iii) any tender offer or exchange
offer (whether by the Company or by another individual or entity, and approved by the Company) is completed pursuant to which holders
of the Common Shares are permitted to tender or exchange their Common Shares for other securities, cash or property and the holders of
at least 50% of the Common Shares accept such offer, or (iv) the Company effects any reclassification of the 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
(other than as a result of a subdivision or combination of Common Shares) (in any such case, a “Fundamental Transaction”),
then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive the number of Common Shares of the Successor
Entity or of the Company and any additional consideration (the “Alternate Consideration”) receivable upon or as a
result of such reorganization, reclassification, merger, consolidation or disposition of assets by a holder of the number of Common Shares
for which this Warrant is exercisable immediately prior to such event (disregarding any limitation on exercise contained herein solely
for the purpose of such determination). 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. To the
extent necessary to effectuate the foregoing provisions, any Successor Entity in such Fundamental Transaction shall issue to the Holder
a new warrant consistent with the foregoing provisions and evidencing the Holder’s right to exercise such warrant into Alternate
Consideration.
4. NON-CIRCUMVENTION.
The Company covenants and agrees that it will not, by amendment of its certificate of incorporation, bylaws or through any reorganization,
transfer of assets, consolidation, merger, scheme of arrangement, 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, and will at all times in good faith carry out
all the provisions of this Warrant and take all action as may be required to protect the rights of the Holder. Without limiting the generality
of the foregoing, the Company (i) shall not increase the par value of any Common Shares receivable upon the exercise of this Warrant
above the Exercise Price then in effect, (ii) shall take all such actions as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and non-assessable Common Shares upon the exercise of this Warrant, and (iii) shall, for so
long as this Warrant is outstanding, have authorized and reserved, free from preemptive rights, ten times the number of Common Shares
into which the Warrants are then exercisable into to provide for the exercise of the rights represented by this Warrant (without regard
to any limitations on exercise).
5. WARRANT
HOLDER NOT DEEMED A STOCKHOLDER. Except as otherwise specifically provided herein, this Warrant, in and of itself, shall not entitle
the Holder to any voting rights or other rights as a stockholder of the Company. In addition, nothing contained in this Warrant shall
be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as
a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors of the Company.
6. REISSUANCE.
(a) Lost,
Stolen or Mutilated Warrant. If this Warrant is lost, stolen, mutilated or destroyed, the Company will, on such terms as to indemnity
or otherwise as it may reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new
Warrant of like denomination and tenor as this Warrant so lost, stolen, mutilated or destroyed.
(b) Issuance
of New Warrants. Whenever the Company is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant
shall be of like tenor with this Warrant, and shall have an issuance date, as indicated on the face of such new Warrant which is the
same as the Issuance Date.
7. NOTICES.
Whenever notice is required to be given under this Warrant, unless otherwise provided herein, such notice shall be given in accordance
with the notice provisions contained in the Purchase Agreement. The Company shall provide the Holder with prompt written notice (i) immediately
upon any adjustment of the Exercise Price, setting forth in reasonable detail, the calculation of such adjustment and (ii) at least 20
days prior to the date on which the Company closes its books or takes a record (A) with respect to any dividend or distribution upon
the Common Shares, (B) with respect to any grants, issuances or sales of any stock or other securities directly or indirectly convertible
into or exercisable or exchangeable for Common Shares or other property, pro rata to the holders of Common Shares or (C) for determining
rights to vote with respect to any Fundamental Transaction, dissolution or liquidation, provided in each case that such information shall
be made known to the public prior to or in conjunction with such notice being provided to the Holder.
8.
TRANSFER. This Warrant shall be binding upon the Company and its successors and assigns, and shall inure to be the benefit of
the Holder and its successors and assigns. Notwithstanding anything to the contrary herein, the rights, interests or obligations of the
Company hereunder may not be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior signed
written consent of the Holder, which consent may be withheld at the sole discretion of the Holder (any such assignment or transfer shall
be null and void if the Company does not obtain the prior signed written consent of the Holder). This Warrant or any of the severable
rights and obligations inuring to the benefit of or to be performed by Holder hereunder may be assigned by Holder to a third party, in
whole or in part, without the need to obtain the Company’s consent thereto. Any transferee of all or a portion of this Warrant
shall succeed to the rights and benefits of the initial Holder of this Warrant and the Securities Purchase Agreement.
9. AMENDMENT
AND WAIVER. The terms of this Warrant may be amended or waived (either generally or in a particular instance and either retroactively
or prospectively) only with the written consent of the Company and the Holder.
10.
GOVERNING LAW. This Warrant shall be deemed executed, delivered and performed in Saint Kitts and Nevis (“Nevis”).
This Warrant shall be solely and exclusively governed by and construed in accordance with the laws of Nevis without regard to principles
of conflicts of laws. The parties hereby warrant and represent that the selection of Nevis law as the sole and exclusive governing law
under this Warrant (i) has a reasonable nexus to each of the parties and to the transactions contemplated by the Warrant; and (ii) does
not offend any public policy of the Nevis, or of any other jurisdiction. The Company irrevocably and exclusively consents to and expressly
agrees that binding arbitration in Nevis conducted by the Arbitrator Conflict Resolution Centre shall be their sole and exclusive remedy
for any dispute arising out of or relating to this Warrant, Agreement, Irrevocable Instructions or any other agreement between the parties,
the Company’s transfer agent or the relationship of the parties or their affiliates, and that the arbitration shall be conducted
via telephone or teleconference. If the Arbitrator is not available, a different arbitrator or law firm in Nevis shall be chosen by the
Lender and agreed upon by the Company. Company covenants and agrees to provide written notice to Lender via email prior to bringing any
action or arbitration action against the Company’s transfer agent or any action against any person or entity that is not a party
to this Agreement that is related in any way to this Agreement or any of the Exhibits under this Agreement or any transaction contemplated
herein or therein, and further agrees to timely notify Lender to any such action. Company acknowledges that the governing law and venue
provisions set forth in this Agreement are material terms to induce Lender to enter into the Transaction Documents and that but for Company’s
agreements set forth in this section, Lender would not have entered into the Transaction Documents. In the event that the Lender needs
to take action to protect their rights under the Loan, the Lender may commence action in any jurisdiction needed with the understanding
that the Agreement shall still be solely and exclusively construed and enforced in accordance with, and all questions concerning the
construction, validity, interpretation and performance of this Agreement shall be governed solely and exclusively by the internal laws
of Nevis, without giving effect to any choice of law or conflict of law provision or rule (whether of Nevis or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the Nevis.
11. ACCEPTANCE.
Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to all of the terms and conditions contained herein.
12. CERTAIN
DEFINITIONS. For purposes of this Warrant, the following terms shall have the following meanings:
(a) “Nasdaq”
means www.Nasdaq.com.
(b) “Closing
Sale Price” means, for any security as of any date, (i) the last closing trade price for such security on the Principal Market,
as reported by Nasdaq, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing trade
price, then the last trade price of such security prior to 4:00 p.m., New York time, as reported by Nasdaq, or (ii) if the foregoing
does not apply, the last trade price of such security in the over-the-counter market for such security as reported by Nasdaq, or (iii)
if no last trade price is reported for such security by Nasdaq, the average of the bid and ask prices of any market makers for such security
as reported by the OTC Markets. If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing
bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and
the Holder. All such determinations to be appropriately adjusted for any stock dividend, stock split, stock combination or other similar
transaction during the applicable calculation period.
(c) “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.
(d) “Common
Share Equivalents” means any securities of the Company that would entitle the holder thereof to acquire at any time Common
Shares, including without limitation any debt, preferred stock, rights, options, warrants 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.
(e)
“Person” and “Persons” means an individual, a limited liability company, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization, any other entity and any governmental entity or any department or agency
thereof.
(g) “Principal
Market” means the primary national securities exchange on which the Common Shares are then traded.
(h) “Market
Price” means the volume weighted average price of the Common Shares one Trading Day prior to the date of the respective Exercise
Notice.
(i) “Trading
Day” means (i) any day on which the Common Shares are listed or quoted and traded on its Principal Market, (ii) if the Common
Shares are not then listed or quoted and traded on any national securities exchange, then a day on which trading occurs on any over-the-counter
markets, or (iii) if trading does not occur on the over-the-counter markets, any Business Day.
*
* * * * * *
IN WITNESS WHEREOF, the Company has caused this
Warrant to be duly executed as of the Issuance Date set forth above.
BRUUSH ORAL CARE, INC. |
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By: |
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Name: |
Aneil Singh Manhas |
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Title: |
Chief Executive Officer |
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EXHIBIT
A
EXERCISE
NOTICE
(To
be executed by the registered holder to exercise this Common Share Purchase Warrant)
| 1. | The
Undersigned holder
hereby exercises the right to have issued _________________ of the Common Shares (“Warrant
Shares”) of BRUUSH ORAL CARE, INC., a corporation incorporated in British Columbia,
Canada, the “Company”), evidenced by the attached copy of the Common Share Purchase
Warrant (the “Warrant”). Capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Warrant. The amount of funds to be paid
to the Company upon the exercise of this Warrant shall be zero as this is a prefunded warrant
which has already been fully paid for. |
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| 2. | Delivery
of Warrant Shares. The Company shall deliver to the holder __________________ Warrant
Shares in accordance with the terms of the Warrant. |
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(Print Name of Registered Holder) |
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By: |
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Name: |
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Title: |
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EXHIBIT
B
ASSIGNMENT
OF WARRANT
(To
be signed only upon authorized transfer of the Warrant)
For
Value Received, the undersigned hereby sells, assigns,
and transfers unto ____________________ the right to purchase _______________ shares of common shares of BRUUSH ORAL CARE, INC.,
to which the Common Share Purchase Warrant relates and appoints ____________________, as attorney-in-fact, to transfer said right on
the books of BRUUSH ORAL CARE, INC. with full power of substitution and re-substitution in the premises. By accepting such transfer,
the transferee has agreed to be bound in all respects by the terms and conditions of the within Warrant.
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(Signature) * |
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(Name) |
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(Address) |
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(Social Security or Tax Identification No.) |
*
The signature on this Assignment of Warrant must correspond to the name as written upon the face of the Common Share Purchase Warrant
in every particular without alteration or enlargement or any change whatsoever. When signing on behalf of a corporation, partnership,
trust or other entity, please indicate your position(s) and title(s) with such entity.
Bruush Oral Care (NASDAQ:BRSH)
過去 株価チャート
から 8 2024 まで 9 2024
Bruush Oral Care (NASDAQ:BRSH)
過去 株価チャート
から 9 2023 まで 9 2024