UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported):
August 11, 2023
Oxus Acquisition Corp.
(Exact name of registrant as specified in its charter)
Cayman Islands |
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001-40778 |
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N/A |
(State or other jurisdiction
of incorporation) |
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(Commission File Number) |
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(I.R.S. Employer
Identification No.) |
300/26 Dostyk Avenue
Almaty, Kazakhstan |
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050020 |
(Address of principal executive offices) |
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(Zip Code) |
+7(727) 355-8021
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K
is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☒ | Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class |
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Trading Symbol(s) |
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Name of each exchange on which registered |
Units, each consisting of one Class A ordinary share and one Warrant |
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OXUSU |
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The Nasdaq Stock Market LLC |
Class A ordinary shares, par value $0.0001 per share |
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OXUS |
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The Nasdaq Stock Market LLC |
Warrants, each whole warrant exercisable for one Class A ordinary share at an exercise price of $11.50 |
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OXUSW |
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The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
Amendment to the Business Combination Agreement
On August 11, 2023, Oxus
Acquisition Corp., an exempted company limited by shares incorporated under the laws of the Cayman Islands (“Oxus”), 1000397116
Ontario Inc., a corporation incorporated under the laws of the Province of Ontario, Canada and a wholly-owned subsidiary of Oxus (“Newco”),
and Borealis Foods Inc., a corporation incorporated under the laws of Canada (“Borealis”), entered into an amendment (the
“Amendment” ) to the Business Combination Agreement, dated February 23, 2023 (the “Business Combination Agreement”),
to amend and restate certain terms of the Business Combination Agreement, including (i) Section 7.18(a), to change the number
of awards of shares of New SPAC Shares to be granted under the New SPAC Equity Plan from 15% to 5%; (ii) to delete the form of the
Plan of Arrangement attached as Exhibit B to the original Business Combination Agreement and replace it with the form attached as Exhibit
A to the Amendment (the “Plan of Arrangement (Amended)”); and (iii) to delete the form of the New SPAC Bylaws attached
as Exhibit G to the Business Combination Agreement and replace it with the form attached as Exhibit B to the Amendment (the “New
SPAC Bylaws (Amended)”). The Plan of Arrangement (Amended) includes, among other things, certain changes to reflect a plan of arrangement
under section 192 of the CBCA and section 182 of the OBCA and certain changes to provisions relating to the New Oxus Amalgamation, and
the effects of such amalgamation. The New SPAC Bylaws (Amended) includes additional provisions relating to the appointment of an audit
committee, and clarification on the quorum requirements for a meeting of shareholders.
Capitalized terms used in
this Current Report on Form 8-K but not otherwise defined herein have the meanings given to them in the Business Combination Agreement.
The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by the terms and conditions
of the Amendment, a copy of which is attached hereto as Exhibit 2.1 and is incorporated herein by reference.
Additional Information and Where to Find
It
This
Current Report on Form 8-K relates to the Business Combination Agreement and other transactions contemplated by the Business Combination
Agreement, the Plan of Arrangement and the ancillary agreements (the “Proposed Transaction”), but does not contain all the
information that should be considered concerning the Proposed Transaction and is not intended to form the basis of any investment decision
or any other decision in respect of the Proposed Transaction. Oxus filed with the Securities and Exchange Commission (the “SEC”)
the Registration Statement relating to the Proposed Transaction, which includes a proxy statement/prospectus of Oxus, on August 14, 2023.
When available, the definitive proxy statement/prospectus and other relevant materials shall be sent to all Oxus shareholders as of a
record date to be established for voting on the Proposed Transaction. Oxus also shall file other documents regarding the Proposed Transaction
with the SEC. Before making any voting decision, investors and securities holders of Oxus are urged to read the Registration Statement,
the proxy statement/prospectus and all other relevant documents filed or that shall be filed with the SEC in connection with the Proposed
Transaction as they become available because they shall contain important information about Oxus, Borealis and the Proposed Transaction.
Investors
and securities holders shall be able to obtain free copies of the proxy statement/prospectus and all other relevant documents filed or
that shall be filed with the SEC by Oxus through the website maintained by the SEC at www.sec.gov. In addition, the documents filed by
Oxus may be obtained free of charge from Oxus’ website at https://www.oxusacquisition.com/or by written request to Oxus at Oxus
Acquisition Corp., 300/26 Dostyk Avenue, Almaty, Kazakhstan 050020.
Participants in Solicitation
Oxus
and Borealis and their respective directors and officers may be deemed to be participants in the solicitation of proxies from Oxus’
shareholders in connection with the Proposed Transaction. Information about Oxus’ directors and executive officers and their ownership
of Oxus’ securities as well as information regarding Borealis’ directors and officers is set forth in Oxus’ filings
with the SEC, including the Registration Statement. Additional information regarding the names and interests in the Proposed Transaction
of Oxus’ and Borealis’ respective directors and officers and other persons who may be deemed participants in the Proposed
Transaction may be obtained by reading the definitive proxy statement/prospectus regarding the Proposed Transaction when it becomes available.
You may obtain free copies of these documents as described in the preceding paragraph.
No Offer or Solicitation
This
Current Report on Form 8-K is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any
securities or in respect of the Proposed Transaction and shall not constitute an offer to sell or a solicitation of an offer to buy the
securities of Oxus, Borealis, or Newco, nor shall there be any sale of any such securities in any state or jurisdiction in which such
offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction.
No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act,
or exemptions therefrom.
Item 9.01. Financial Statements and Exhibits.
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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oxus acquisition corp. |
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By: |
/s/ Kanat Mynzhanov |
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Name: |
Kanat Mynzhanov |
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Title: |
Chief Executive Officer |
Date: August 17, 2023
3
Exhibit 2.1
Execution Version
AMENDMENT NO. 1 TO THE BUSINESS COMBINATION
AGREEMENT
THIS AMENDMENT NO. 1
(this “Amendment”) is dated as of August 11, 2023, to the Business Combination Agreement, dated as of February 23,
2023 (the “Business Combination Agreement”), by and among Oxus Acquisition Corp., an exempted company limited by shares
incorporated under the Laws of the Cayman Islands (“SPAC”), 1000397116 Ontario Inc., a corporation incorporated under
the Laws of the Province of Ontario, Canada (“Newco”), and Borealis Foods Inc., a corporation incorporated under the
Laws of Canada (the “Company”). Each of SPAC, Newco and the Company shall individually be referred to herein as a “Party”
and, collectively, the “Parties”. Capitalized terms used but not otherwise defined in this Amendment shall have the
meaning given to such terms in the Business Combination Agreement.
WHEREAS, Section 9.04
of the Business Combination Agreement and Section 4.1 of the Plan of Arrangement allow the Parties to amend the Business Combination Agreement
and the Plan of Arrangement at any time and from time to time prior to the Company Amalgamation Effective Time in accordance with the
terms and conditions set forth therein;
WHEREAS, the Plan of
Arrangement is attached as Exhibit “B” to the Business Combination Agreement;
WHEREAS, the form of
New SPAC Bylaws is attached as Exhibit “G” to the Business Combination Agreement; and
WHEREAS, the Parties
wish to amend the Business Combination Agreement, the Plan of Arrangement and the form of New SPAC Bylaws as set forth in this Amendment.
NOW, THEREFORE, in
consideration of the foregoing and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows:
ARTICLE I
AMENDMENT TO THE BUSINESS
COMBINATION AGREEMENT
| 1. | Amend and Restate Section 3.01. Section 3.01 of the Business Combination Agreement is hereby amended
and restated in its entirety as follows: |
“SPAC Class
B Share Conversion. At the Company Amalgamation Effective Time, each share of SPAC Class B Shares issued and outstanding immediately
prior to the Continuance Effective Time, if any, shall automatically be converted into and exchanged for a number of validly issued, fully
paid and nonassessable New SPAC Shares equal to the Class B Share Conversion Ratio.”
| 2. | Amend and Restate Section 7.18(a). Section 7.18(a) of the Business Combination Agreement is hereby
amended and restated in its entirety as follows: |
“(a) Prior to
the Company Amalgamation Effective Time, SPAC shall adopt, subject to approval of the shareholders of SPAC: (i) an equity incentive plan
for employees, consultants, independent contractors and directors of New SPAC and its Subsidiaries (the “New SPAC Equity Plan”)
in form and substance to be mutually agreed to by the Company and SPAC prior to the filing of the Registration Statement, which shall
provide for awards for a number of New SPAC Shares equal to five percent (5%) of the number of New SPAC Shares issued and outstanding
as of immediately following the Company Amalgamation Effective Time.”
| 3. | Plan of Arrangement. The Plan of Arrangement attached as Exhibit “B” to the Business
Combination Agreement is hereby deleted and replaced in its entirety with the Plan of Arrangement attached hereto as Schedule “A”. |
| 4. | Form of New SPAC Bylaws. The form of New SPAC Bylaws attached as Exhibit “G” to the
Business Combination Agreement is hereby deleted and replaced in its entirety with the form of New SPAC Bylaws attached hereto as Schedule
“B”. |
ARTICLE II
MISCELLANEOUS
| 5. | Effect of Amendment. Except as set forth in this Amendment, the Parties acknowledge and confirm
that the Business Combination Agreement shall remain in full force and effect, unamended, and, upon the execution of this Amendment, the
Business Combination Agreement and this Amendment shall be deemed to constitute the Business Combination Agreement. |
| 6. | Governing Law. This Amendment shall be binding upon and enure to the benefit of the Parties and
their respective legal representatives, successors and permitted assigns. This Amendment shall be governed by, and construed in accordance
with, the Laws of the State of Delaware applicable to contracts executed in and to be performed in that State. |
| 7. | Severability. If any term or other provision of this Amendment is invalid, illegal or incapable
of being enforced by any rule of law, or public policy, all other conditions and provisions of this Amendment shall nevertheless remain
in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any Party. |
| 8. | Counterparts. This Amendment may be executed and delivered (including by facsimile or portable
document format (.pdf) transmission) in one or more counterparts, and by the different Parties in separate counterparts, each of which
when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. |
[Remainder of this page intentionally left blank;
signature page follows]
IN WITNESS WHEREOF
the Parties have executed this Amendment as of the date first above written.
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OXUS ACQUISITION CORP. |
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By: |
/s/ Kanat Mynzhanov |
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Name: |
Kanat Mynzhanov
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Title: |
Chief Executive Officer |
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1000397116 ONTARIO INC. |
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By: |
/s/ Kanat Mynzhanov |
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Name: |
Kanat Mynzhanov
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Title: |
Director |
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BOREALIS FOODS INC. |
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By: |
/s/ Reza Soltanzadeh |
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Name: |
Reza Soltanzadeh
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Title: |
President |
[Signature Page to Amendment No. 1]
Schedule
“A”
EXHIBIT B TO THE BUSINESS COMBINATION AGREEMENT
PLAN OF ARRANGEMENT
(See attached.)
EXHIBIT B
PLAN OF ARRANGEMENT
PLAN OF ARRANGEMENT
UNDER SECTION 192 OF THE
CANADA BUSINESS CORPORATIONS ACT AND
SECTION 182 OF THE BUSINESS CORPORATIONS
ACT (ONTARIO)
Article
1
INTERPRETATION
Section 1.1 Definitions
Unless indicated otherwise,
any capitalized term used herein but not defined shall have the meaning ascribed thereto in the Business Combination Agreement and the
following terms shall have the respective meanings set out below (and grammatical variations of such terms shall have corresponding meanings):
“Affiliate” of a specified
Person means a Person who, directly or indirectly through one or more intermediaries, Controls, is controlled by, or is under common control
with, such specified person.
“Aggregate Transaction Consideration”
means a number of New SPAC Shares equal to the quotient of (a) the Company Value divided by (b) Ten United States dollars (USD$10.00).
“Amalco” means the corporation
to be formed on the Company Amalgamation.
“Arrangement” means an arrangement
of the Company (i) in respect of the steps described in Section 2.3(a) and (b), under Section 192 of the CBCA, and (ii) in respect of
the steps described in Section 2.3(c) through (e), under Section 182 of the OBCA, in each case on the terms and subject to the conditions
set out in this Plan of Arrangement, subject to any amendments or variations hereto made in accordance with the terms of the Business
Combination Agreement or Section 4.1 or made at the direction of the Court in the Final Order with the prior written consent of the Parties,
acting reasonably.
“Arrangement Effective Date”
means the date shown on each of the CBCA Certificate of Arrangement and the OBCA Certificate of Arrangement giving effect to the Arrangement.
“Arrangement Effective Time”
means 5:01 p.m. (Toronto time) on the Arrangement Effective Date, or such other time as the Parties agree to in writing before the Arrangement
Effective Date.
“Belphar Note Purchase Agreement”
means the note purchase agreement dated February 8, 2023 between the Company and Belphar Ltd. providing for the issuance by the Company
of convertible promissory notes in the aggregate amount of USD$20,000,000, as amended, restated, supplemented or otherwise modified from
time to time.
“Business Combination Agreement”
means the business combination agreement made as of February 23, 2023 by and between SPAC, Newco and the Company (including the Exhibits
thereto) as it may be amended, restated, modified or supplemented from time to time in accordance with its terms.
“Business Day” means any day
on which the principal offices of the SEC in Washington, D.C. are open to accept filings or, in the case of determining a date when any
payment is due, any day on which banks are not required or authorized to close in New York, New York, Toronto, Ontario or the Cayman Islands.
“CBCA” means the Canada
Business Corporations Act.
“CBCA Articles of Arrangement”
means the articles of arrangement of the Company in respect of the Arrangement required to be filed with the Director pursuant to Section
192(6) of the CBCA after the Final Order is made, which shall include this Plan of Arrangement and otherwise be in form and substance
satisfactory to the Parties, acting reasonably.
“CBCA Certificate of Arrangement”
means the certificate of arrangement to be issued by the Director pursuant to Subsection 192(7) of the CBCA in respect of the CBCA Articles
of Arrangement.
“Code” has the meaning ascribed
to such term in Section 3.4.
“Company” means Borealis Foods
Inc., a corporation incorporated under the CBCA.
“Company Amalgamation” means
the amalgamation of Newco and the Company, as described in Section 2.3(c).
“Company Amalgamation Effective Time”
means the time at which the step described in Section 2.3(c) becomes effective hereunder.
“Company Arrangement Resolution”
means the special resolution of the Company Shareholders approving this Plan of Arrangement to be considered and, if thought fit, passed
by the requisite majority of the Company Shareholders, either at the Company Shareholders Meeting or unanimously in writing, in accordance
with applicable Law and the terms of the Interim Order.
“Company Convertible Instruments”
means the convertible financing instruments of the Company, including the Sponsor Convertible Notes, that are being converted into Company
Shares immediately prior to the Company Amalgamation under this Plan of Arrangement as set forth in Section 1.01 of the Company Disclosure
Schedule.
“Company Fully-Diluted Number”
means, without duplication, the aggregate number of Company Shares issued and outstanding immediately prior to the Company Amalgamation
Effective Time, which, for greater certainty, will include the Company Shares issued pursuant to Section 2.3(a) and Section 2.3(b).
“Company Incentive Plan” means
the Employee Stock Option Plan of the Company, dated January 6, 2022.
“Company Optionholder” means
a holder of Company Options.
“Company Options” means the
options granted by the Company to certain employees, personnel or service providers to purchase Company Shares, whether or not exercisable
and whether or not vested, immediately prior to the Closing under the Company Incentive Plan.
“Company Securityholders” means,
collectively, the Company Shareholders, the Company Optionholders and the holders of Company Convertible Instruments.
“Company Shareholders” means,
collectively, the holders of the Company Shares.
“Company Shareholders Meeting”
means the meeting of the Company Shareholders, including any adjournment or postponement thereof in accordance with the terms of the Business
Combination Agreement, that is to be convened as provided by the Interim Order and applicable Law to consider, and if deemed advisable,
to approve the Company Arrangement Resolution.
“Company Shares” means, collectively,
all of the issued and outstanding Class A, Class B, Class C and Class D common shares of the Company.
“Control” (including the terms
“controlled by” and “under common control with”) means the possession, directly or indirectly, or as trustee or
executor, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting
securities, as trustee or executor, by contract or otherwise.
“Conversion Agreements” means,
as applicable, all agreements, if any, executed and delivered by the Company, SPAC and certain holders of Company Convertible Instruments
prior to Closing, pursuant to which the applicable parties thereto have agreed, among other things, that all or a portion of the outstanding
principal and accrued interest under such Company Convertible Instruments shall, on the terms and subject to the conditions of the Business
Combination Agreement, this Plan of Arrangement and the applicable Conversion Agreement (including, for the avoidance of doubt, the Sponsor
Support Agreement), convert, in whole or in part, into Company Shares, immediately prior to the Company Amalgamation under this Plan of
Arrangement.
“Court” means the Ontario Superior
Court of Justice (Commercial List), or other court as applicable.
“Director” means the Director
appointed pursuant to Section 260 of the CBCA or Section 278 of the OBCA, as the context requires.
“Exchange Act” means the United
States Securities Exchange Act of 1934, as amended.
“Exchange Agent” means the
bank or trust company appointed by New SPAC in accordance with the terms of Section 3.03(a) of the Business Combination Agreement.
“Exchange Fund” has the meaning
ascribed to such term in Section 3.1(1).
“Final Order” means the final
order of the Court pursuant to Subsection 192(4) of the CBCA and Subsection 182(5) of the OBCA in a form acceptable to the Parties, each
acting reasonably, approving the Arrangement, as such order may be amended, modified, supplemented or varied by the Court (with the consent
of the Parties, each acting reasonably) at any time prior to the Arrangement Effective Date or, if appealed, then, unless such appeal
is withdrawn, abandoned or denied, as affirmed or as amended (provided that any such amendment is acceptable to the Parties, each acting
reasonably) on appeal.
“Governmental Authority” means:
(a) any court, tribunal, judicial body or arbitral body or arbitrator; (b) any domestic or foreign government or supranational body or
authority whether multinational, national, federal, provincial, territorial, state, municipal or local and any governmental agency, governmental
authority, governmental body, governmental bureau, governmental department, governmental tribunal or governmental commission of any kind
whatsoever; (c) any subdivision or authority of any of the foregoing; (d) any quasi-governmental or private body or public body exercising
any regulatory, administrative, expropriation or taxing authority under or for the account of the foregoing; (e) any stock or securities
exchange; and (f) any public utility authority.
“Interim Order” means the interim
order of the Court pursuant to Subsection 192(4) of the CBCA and Subsection 182(5) of the OBCA in a form acceptable to the Parties, each
acting reasonably, providing for, among other things, the calling and holding of the Company Shareholders Meeting, as such order may be
amended, modified, supplemented or varied by the Court with the consent of the Parties, each acting reasonably.
“Lien” means any lien, security
interest, mortgage, pledge, adverse claim or other encumbrance of any kind that secures the payment or performance of an obligation (other
than those created under applicable securities Laws).
“New Investor Convertible Notes”
means, collectively, the convertible promissory notes issued by the Company (i) to Belphar Ltd. pursuant to the Belphar Note Purchase
Agreement and (ii) to any other New Investors during the period from the date of the Business Combination Agreement until the Closing
pursuant to the New Investor Note Purchase Agreement.
“New Investor Note Purchase Agreement”
means, collectively, note purchase, subscription or other similar agreements providing for the issuance by the Company of convertible
notes to other New Investors on terms and conditions substantially similar to the terms and conditions of the Sponsor Note Purchase Agreement.
“New SPAC” means SPAC as the
entity that domesticates and continues from the Cayman Islands as a corporation existing under the Laws of the Province of Ontario, Canada
after giving effect to the Continuance.
“New SPAC Amalco” has the meaning
ascribed to such term in Section 2.3(d).
“New SPAC Amalgamation” means
the amalgamation of New SPAC and Amalco, as described in Section 2.3(d).
“New SPAC Amalgamation Effective Time”
means the time at which the step described in Section 2.3(d) becomes effective hereunder.
“New SPAC Shares” means common
shares of New SPAC, after giving effect to the Continuance.
“Newco” means 1000397116 Ontario
Inc., a corporation incorporated under the OBCA.
“OBCA” means the Business
Corporations Act (Ontario).
“OBCA Articles of Arrangement”
means the articles of arrangement of the Company in respect of the Arrangement required to be filed with the Director pursuant to Section
183(1) of the OBCA after the Final Order is made, which shall include this Plan of Arrangement and otherwise be in form and substance
satisfactory to the Parties, acting reasonably.
“OBCA Certificate of Arrangement”
means the certificate of arrangement to be issued by the Director pursuant to Subsection 183(2) of the OBCA in respect of the OBCA Articles
of Arrangement.
“Option Exercise Price” means
$0.0001.
“Parties” means, collectively,
the Company and SPAC, and “Party” means either of them.
“Per Share Exchange Ratio”
means the number obtained by dividing the Aggregate Transaction Consideration by the Company Fully-Diluted Number.
“Person” means an individual,
corporation, partnership, limited partnership, limited liability company, syndicate, person (including, without limitation, a “person”
as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political subdivision, agency or instrumentality
of a government.
“Plan of Arrangement” means
this plan of arrangement, subject to any amendments or variations made in accordance with the Business Combination Agreement or Section
4.1 or made at the direction of the Court in the Final Order with the prior written consent of the Parties, each acting reasonably.
“Remaining Company Convertible Instruments”
means the convertible instruments, set forth in Section 1.01 of the Company Disclosure Schedule, under which the specified portion of
principal and accrued interest will remain outstanding following the completion of the Arrangement in accordance with the Business Combination
Agreement.
“SEC” means the United States
Securities and Exchange Commission.
“SPAC” means Oxus Acquisition
Corp., an exempted company limited by shares incorporated under the Laws of the Cayman Islands.
“SPAC Warrant Agreement” means
that certain warrant agreement dated September 2, 2021, by and between SPAC and Continental Stock Transfer and Trust Company.
“Sponsor” means Oxus Capital
PTE. Ltd.
“Sponsor Convertible Notes”
means the convertible notes issued by the Company to Sponsor pursuant to the Sponsor Note Purchase Agreement.
“Sponsor Note Purchase Agreement”
means, collectively, the Note Purchase Agreement between the Company and Sponsor dated as of October 21, 2022 and the Note Purchase Agreement
between the Company and Sponsor dated as of November 14, 2022, in each case, as amended, restated, supplemented or otherwise modified
from time to time.
“Subsidiary” of the Company,
SPAC, Newco or any other Person means an Affiliate Controlled by such person, directly or indirectly, through one or more intermediaries,
and “Subsidiaries” means more than one Subsidiary.
“Tax” means all federal, state,
provincial, local and non-U.S. income, profits, franchise, receipts, environmental, shares, severances, stamp, payroll, sales, employment,
unemployment, disability, use, property, withholding, excise, production, value added, escheat, unclaimed property, occupancy and other
taxes, duties or assessments of any nature whatsoever, together with all interest, penalties and additions imposed with respect to such
amounts and any interest in respect of such penalties and additions.
Section 1.2 Certain
Rules of Interpretation
In this Plan of Arrangement,
unless otherwise specified:
| (1) | Headings, etc. The division of this Plan of Arrangement into Articles and Sections and the insertion
of headings are for convenient reference only and do not affect the construction or interpretation of this Plan of Arrangement. |
| (2) | Currency. All references to “dollars” or to “$” are references to Canadian
dollars, unless specified otherwise. In the event that any amounts are required to be converted from a foreign currency to Canadian dollars
or vice versa, such amounts shall be converted using the most recent closing exchange rate of The Bank of Canada available before the
relevant calculation date. |
| (3) | Gender and Number. Any reference to gender includes all genders. Words importing the singular number
only include the plural and vice versa. |
| (4) | Certain Phrases, etc. The words (a) “including”, “includes” and “include”
mean “including (or includes or include) without limitation”, (b) “or” is not exclusive, (c) “day”
means “calendar day”, (d) “hereof”, “herein”, “hereunder” and words of similar import,
shall refer to this Plan of Arrangement as a whole and not to any particular provision of this Plan of Arrangement, (e) “the aggregate
of”, “the total of”, “the sum of”, or a phrase of similar meaning means “the aggregate (or total or
sum), without duplication, of”, (f) “extent” in the phrase “to the extent” shall mean the degree to which
a subject or other thing extends and such phrase shall not mean simply “if”, and (g) unless stated otherwise, “Article”
or “Section” followed by a number or letter mean and refer to the specified Article or Section of this Plan of Arrangement. |
| (5) | Statutes and Rules. Any reference to a statute or to a rule of a self-regulatory organization,
including any stock exchange, refers to such statute or rule and all rules, resolutions and regulations, administrative policy statements,
instruments, blanket orders, notices, directions and rulings issued or adopted under it, as it or they may have been or may from time
to time be amended or re-enacted, unless stated otherwise. |
| (6) | Date for Any Action. If the date on which any action is required to be taken hereunder is not a
Business Day, such action shall be required to be taken on the next succeeding day which is a Business Day. Any reference to a number
of days shall refer to calendar days unless Business Days are specified. |
| (7) | Time. Time shall be of the essence in every matter or action contemplated hereunder. All times
expressed herein are local time in Toronto, Ontario unless otherwise stipulated herein. |
Article
2
THE ARRANGEMENT
Section 2.1 Business
Combination Agreement
This Plan of Arrangement is
made pursuant to the Business Combination Agreement. If there is any inconsistency or conflict between the provisions of this Plan of
Arrangement and the provisions of the Business Combination Agreement, the provisions of this Plan of Arrangement shall govern.
Section 2.2 Binding
Effect
This Plan of Arrangement and
the Arrangement shall become effective at the Arrangement Effective Time, and shall be binding on SPAC, Newco, the Company, all Company
Shareholders, all Company Optionholders, all holders of Company Convertible Instruments, all holders of Remaining Company Convertible
Instruments, all holders of New SPAC Shares, the registrar and transfer agent of the Company, the Exchange Agent and all other Persons
at and after the Arrangement Effective Time, without any further act or formality required on the part of any Person.
Section 2.3 Arrangement
Commencing at the Arrangement
Effective Time, each of the following events shall occur sequentially in the order set out below without any further authorization, act
or formality, in each case, unless stated otherwise, effective as at five-minute intervals starting at the Arrangement Effective Time:
| (a) | pursuant to Section 192 of the CBCA, all applicable Company Convertible Instruments outstanding immediately
prior to the Arrangement Effective Time (excluding, for greater certainty, the Remaining Company Convertible Instruments and the New Investor
Convertible Notes) shall, without further action by or on behalf of a holder of Company Convertible Instruments, be converted into Company
Shares pursuant to their terms and the terms of any Conversion Agreements; |
| (b) | pursuant to Section 192 of the CBCA, all Company Options outstanding immediately prior to the Arrangement
Effective Time (whether vested or unvested), notwithstanding the terms of the Company Incentive Plan or any applicable award agreements
in relation thereto, shall be deemed to be unconditionally vested and exercisable, and each Company Optionholder shall, without any further
action by or on behalf of such Company Optionholder, be deemed to have exercised such Company Optionholder’s Company Options in
exchange for such number of Company Shares (rounded down to the nearest whole Company Share) having an aggregate fair market value equal
to (A) the aggregate fair market value of the Company Shares underlying such Company Optionholder’s Company Options, minus
(B) the aggregate Option Exercise Price in respect of such Company Optionholder’s Company Options, and none of the Company or SPAC
shall be obligated to pay such Company Optionholder any amount in respect of such Company Option; and, with respect to each Company Option
that is exercised pursuant to this Section 2.3(b), as of the effective time of such exercise: (i) the holder thereof shall cease to be
the holder of such Company Option, (ii) the holder thereof shall cease to have any rights as a holder in respect of such Company Option
or under the Company Incentive Plan, as applicable, other than the right to receive the consideration to which such holder is entitled
pursuant to this Section 2.3(b), (iii) such holder’s name shall be removed from the applicable register, and (iv) all agreements,
grants and similar instruments relating thereto shall be cancelled; |
| (c) | Newco and the Company shall be amalgamated pursuant to Subsection 182(1)(d) of the OBCA to form Amalco
in such a manner that, upon the Company Amalgamation becoming effective: |
| (i) | Name: the name of Amalco shall be “Borealis Foods Inc.”; |
| (ii) | Registered Office: the registered office of Amalco shall be 1540 Cornwall Road, Suite 104, Oakville,
Ontario L6J 7W5; |
| (iii) | Number of Directors: the number of directors of Amalco shall consist of a minimum number of three
(3) directors and a maximum number of ten (10) directors. Until changed by the shareholders of Amalco, or by directors of Amalco if authorized
to do so, the number of directors of Amalco shall be seven (7); |
| (iv) | Initial
Directors: the initial directors of Amalco shall be Reza Soltanzadeh, Barthelemy Helg,
[■], [■], [■], [■] and [■] and such Persons shall hold
office until the next annual meeting of shareholders of Amalco or until their successors
are appointed or elected; |
| (v) | Restrictions on Business and Powers: there shall be no restrictions on the business Amalco may
carry on or the powers it may exercise; |
| (vi) | Authorized Capital and Rights, Privileges, Restrictions and Conditions: Amalco’s share capital
will be comprised of common shares having the same terms and conditions as the common shares of Newco; |
| (vii) | Restrictions on the Issue, Transfer or Ownership of Shares: there shall be no restrictions on the
issue, transfer or ownership of shares of Amalco; |
| (viii) | By-laws: the by-laws of Amalco shall be the by-laws of Newco, mutatis mutandis; |
| (ix) | Effect of Amalgamation: |
| (A) | Newco and the Company shall cease to exist as entities separate from Amalco; |
| (B) | Amalco shall assume all the property, rights, privileges and franchises and become subject to all liabilities,
including civil, criminal and quasi-criminal, and all contracts, disabilities and debts of each of the predecessor corporations, including
the Company’s obligations under the Remaining Company Convertible Instruments and the New Investor Convertible Notes; |
| (C) | a conviction against, or ruling, order or judgment in favour of or against Newco or the Company may be
enforced by or against Amalco; and |
| (D) | Amalco shall be deemed to be the party plaintiff or the party defendant, as the case may be, in any civil
action commenced by or against Newco and the Company before the amalgamation has become effective; |
| (x) | Articles: the articles of incorporation of Newco shall be deemed to continue to be the articles
of amalgamation of Amalco; |
| (A) | without any action on the part of New SPAC, Newco, the Company or the Company Shareholders, each Company
Share shall be exchanged for, in accordance with the terms of the Business Combination Agreement, this Plan of Arrangement and the Exchange
Spreadsheet, the number of New SPAC Shares equal to the Per Share Exchange Ratio; and |
| (B) | each common share of Newco held by New SPAC shall be exchanged for a common share of Amalco on a one-for-one
basis; |
| (xii) | Stated Capital: the aggregate stated capital of the common shares of Amalco will be an amount equal
to $1.00; |
| (d) | New SPAC and Amalco shall amalgamate to form one corporate entity pursuant to Subsection 182(1)(c) of
the OBCA, including that (x) notwithstanding the continuation of any corporate identification number, the requirement for a new financial
year-end or the administrative implementation of the step described in this Section 2.3(d), the legal existence of New SPAC shall continue,
(y) the separate legal existence of Amalco shall cease without Amalco being liquidated or wound up, and (z) New SPAC shall survive the
amalgamation (New SPAC, as such surviving entity, “New SPAC Amalco”) (and for the avoidance of doubt, the New SPAC
Amalgamation shall qualify as an amalgamation as defined in subsection 87(1) of the ITA). Without limiting the foregoing, upon the New
SPAC Amalgamation becoming effective, the New SPAC Amalgamation will, as elaborated below, be effected in such a manner that by virtue
or because of the New SPAC Amalgamation (1) all of the property of each of New SPAC and Amalco (other than amounts receivable from New
SPAC or Amalco, as applicable, or shares in the capital stock of New SPAC) immediately prior to the New SPAC Amalgamation shall be held
by New SPAC Amalco immediately following the New SPAC Amalgamation, as elaborated below, (2) all of the obligations and the liabilities
of each of New SPAC and Amalco (other than amounts payable to New SPAC or Amalco) immediately before the New SPAC Amalgamation shall be
the obligations and the liabilities of New SPAC Amalco immediately following the New SPAC Amalgamation, as elaborated below, and (3) any
obligation of New SPAC or Amalco to pay an amount to the other party will be settled and extinguished as a result of the New SPAC Amalgamation.
Subject to the foregoing, at and after the New SPAC Amalgamation becoming effective: |
| (i) | Name: the name of New SPAC Amalco shall be “Borealis Foods Inc.”; |
| (ii) | Registered Office: the registered office of New SPAC Amalco shall be 1540 Cornwall Road, Suite
104, Oakville, Ontario L6J 7W5; |
| (iii) | Number of Directors: the number of directors of New SPAC Amalco shall consist of a minimum number
of three (3) directors and a maximum number of thirteen (13) directors. Until changed by the shareholders of New SPAC Amalco, or by directors
of New SPAC Amalco if authorized to do so, the number of directors of New SPAC Amalco shall be seven (7); |
| (iv) | Initial
Directors: the initial directors of New SPAC Amalco shall be Reza Soltanzadeh, Barthelemy
Helg, [■], [■], [■], [■] and [■] and such Persons shall
hold office until the next annual meeting of shareholders of New SPAC Amalco or until their
successors are appointed or elected; |
| (v) | Restrictions on Business and Powers: there shall be no restrictions on the business New SPAC Amalco
may carry on or the powers it may exercise; |
| (vi) | Authorized Capital and Rights, Privileges, Restrictions and Conditions: New SPAC Amalco’s
share capital will be comprised of common shares and preferred shares having the terms and conditions attached as Schedule “A”
hereto; |
| (vii) | Restrictions on the Issue, Transfer or Ownership of Shares: there shall be no restrictions on the
issue, transfer or ownership of shares of New SPAC Amalco; |
| (viii) | By-laws: the by-laws of New SPAC Amalco shall be the by-laws of New SPAC, mutatis mutandis; |
| (ix) | Effect of Amalgamation: |
| (A) | New SPAC Amalco shall continue to own and hold all of the property of New SPAC and shall become the owner
and holder of all of the property of Amalco, and, without limiting the provisions hereof, all rights of creditors or others will be unimpaired
by the New SPAC Amalgamation and all obligations of the Parties, whether arising by contract or otherwise, may be enforced against New
SPAC Amalco to the same extent as if such obligations had been incurred or contracted by New SPAC Amalco; |
| (B) | New SPAC Amalco shall continue to be liable for the obligations of New SPAC and shall become liable for
the obligations of Amalco, including Amalco’s obligations under the Remaining Company Convertible Instruments and the New Investor
Convertible Notes, other than any obligations that are settled and extinguished in accordance with Section 2.3(d)(3); |
| (C) | for greater certainty, and except as otherwise provided for herein in relation to Amalco, the New SPAC
Amalgamation shall not constitute a transfer or assignment of the rights or obligations of any Party under any contracts, permits and
interests of the Parties; |
| (D) | a conviction against, or ruling, order or judgment in favour of or against New SPAC or Amalco may be enforced
by or against New SPAC Amalco; and |
| (E) | New SPAC Amalco shall be deemed to be the party plaintiff or the party defendant, as the case may be,
in any civil action commenced by or against New SPAC and Amalco before the amalgamation has become effective; |
| (x) | Articles: the articles of continuance of New SPAC shall be deemed to continue to be the articles
of amalgamation of New SPAC Amalco; |
| (xi) | Cancellation and Continuation of Shares: |
| (A) | each issued and outstanding share in the capital of Amalco immediately prior to the amalgamation will
be cancelled without any repayment of capital in respect thereof; |
| (B) | no securities will be issued and no assets will be distributed by New SPAC Amalco in connection with the
amalgamation; and |
| (C) | the issued and outstanding common shares of New SPAC immediately prior to the amalgamation will survive
and continue to be common shares of New SPAC Amalco without amendment; |
| (xii) | Stated Capital: the stated capital of the common shares of New SPAC Amalco will be an amount equal
to the stated capital of the common shares of New SPAC immediately before the amalgamation; |
| (e) | the New Investor Convertible Notes shall convert into New SPAC Shares pursuant to the terms of the Belphar
Note Purchase Agreement or the New Investor Note Purchase Agreement, as applicable; |
provided that none of
the foregoing shall occur unless all of the foregoing occur.
Article
3
EXCHANGE OF CERTIFICATES AND PAYMENTS
Section 3.1 Payment
of Aggregate Transaction Consideration
| (1) | Following receipt of the Final Order and prior to the Arrangement Effective Date, SPAC shall deposit,
or shall cause to be deposited, with the Exchange Agent for the benefit of the Company Shareholders, for exchange in accordance with this
Plan of Arrangement, the number of New SPAC Shares sufficient to deliver the Aggregate Transaction Consideration payable pursuant to the
Business Combination Agreement (such certificates for New SPAC Shares being hereinafter referred to as the “Exchange Fund”).
New SPAC shall cause the Exchange Agent pursuant to irrevocable instructions to pay the Aggregate Transaction Consideration out of the
Exchange Fund in accordance with the Business Combination Agreement and this Plan of Arrangement. |
| (2) | The consideration contemplated by Section 3.1(1) shall be held by the Exchange Agent as agent and nominee
for the Company Shareholders in accordance with the provisions of this Article 3. Upon surrender to the Exchange Agent for cancellation
of a certificate (or where applicable, confirmation of book-entry only entries) which immediately prior to the step described in Section
2.3(c) becoming effective represented outstanding Company Shares, together with such additional documents and instruments as the Exchange
Agent may reasonably require, the Exchange Agent shall deliver book-entry only entries representing the New SPAC Shares that such Company
Shareholder is entitled to receive under the Arrangement, less any amounts required to be withheld pursuant to Section 3.4. |
| (3) | Until surrendered for cancellation as contemplated by this Section 3.1, each certificate, agreement or
other instrument (as applicable) which immediately prior to the step described in Section 2.3(c) becoming effective represented outstanding
Company Shares shall be deemed at all times after the Arrangement Effective Time to represent only the right to receive upon such surrender
the New SPAC Shares which such holder is entitled to receive pursuant to Section 3.1(2). |
| (4) | Any certificate, agreement or other instrument that immediately prior to the Arrangement Effective Time
represented outstanding Company Shares (including the right of a former holder of Company Convertible Instruments or a Company Option)
not duly deposited or surrendered with all other documents required by this Section 3.1 on or before the third anniversary of the Effective
Date shall cease to represent a claim by or interest of any former holder thereof of any kind or nature against or in the Company or SPAC.
On such date, all consideration, including any New SPAC Shares, to which such former holder was entitled under this Plan of Arrangement
shall be deemed to have been surrendered and forfeited to New SPAC for no consideration, together with all entitlements to dividends,
distributions and interest thereon held for such former holder, and in respect of such forfeited New SPAC Shares, such New SPAC Shares
shall be cancelled. |
| (5) | No Company Securityholder shall be entitled to receive any consideration with respect to the Company Shares
or the Company Convertible Instruments, as applicable, other than the consideration to which such holder is entitled to receive under
the Arrangement and, for greater certainty, no such holder will be entitled to receive any interest, dividend, premium or other payment
in connection therewith. |
| (6) | All dividends payable with respect to any New SPAC Shares allotted and issued pursuant to this Plan of
Arrangement for which a certificate has not been issued shall be paid or delivered to the Exchange Agent to be held by the Exchange Agent
in trust for the registered holder thereof. The Exchange Agent shall pay and deliver to any such registered holder, as soon as reasonably
practicable after application therefor is made by the registered holder to the Exchange Agent in such form as the Exchange Agent may reasonably
require, such dividends and any interest thereon to which such holder is entitled, net of applicable withholding and other taxes. |
Section 3.2 Lost
Certificates
In the event any certificate
which immediately prior to the Arrangement Effective Time represented one or more outstanding Company Shares that were transferred pursuant
to this Plan of Arrangement shall have been lost, stolen or destroyed, upon the making of an affidavit (in form and substance reasonably
acceptable to New SPAC) of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Exchange Agent shall
issue and deliver, in exchange for such lost, stolen or destroyed certificate, the New SPAC Shares which such holder is entitled to receive
pursuant to Section 3.1(2), less any amounts required to be withheld pursuant to Section 3.4. When authorizing such delivery in exchange
for any lost, stolen or destroyed certificate, the Person to whom such consideration is to be delivered shall, as a condition precedent
to the delivery of such consideration, give a bond or surety satisfactory to New SPAC and the Exchange Agent in such reasonable and customary
sum as SPAC may direct, or otherwise indemnify New SPAC and the Exchange Agent in a manner satisfactory to New SPAC and the Exchange Agent,
against any claim that may be made against New SPAC or the Exchange Agent with respect to the certificate alleged to have been lost, stolen
or destroyed.
Section 3.3 No
Fractional Shares
In no event shall a Company
Securityholder be entitled to a fractional New SPAC Share. Where the aggregate number of New SPAC Shares to be issued to a Company Securityholder
pursuant to the Business Combination Agreement, this Plan of Arrangement and the Exchange Spreadsheet would result in a fraction of a
New SPAC Share being issuable, the number of New SPAC Shares to be received by such Company Securityholder shall be rounded up or down
to the nearest whole New SPAC Share, with a fraction of 0.5 rounded up. No cash settlements shall be made with respect to fractional shares
eliminated by rounding.
Section 3.4 Withholding
Rights
Each of the Company, SPAC
and New SPAC, as applicable, shall be entitled to deduct or withhold from the consideration otherwise payable pursuant to this Plan of
Arrangement to any Person such amounts as it is required to deduct or withhold with respect to the making of such payment under the United
States Internal Revenue Code of 1986, as amended (the “Code”), the ITA and other applicable Canadian Law, or other
provision of U.S. state, local or non-U.S. Tax Law; provided, however, except with respect to the payment or issuance of consideration
as compensation for services, SPAC and New SPAC, as applicable, shall reasonably cooperate with Company Shareholders to establish any
available reduction in or exemption from such intended deduction or withholding, and SPAC and New SPAC, as applicable, shall use commercially
reasonable efforts to provide such Party notice three (3) days prior to any withholding so that such person can provide any documents
necessary; provided further, and notwithstanding the foregoing, SPAC and New SPAC, as applicable, shall withhold such amounts as
may be required to be withheld pursuant to Section 1445 of the Code and shall reasonably cooperate with the Company to reduce or eliminate
any such withholding in accordance with applicable Law. The Company, SPAC or New SPAC, as the case may be, is hereby authorized to dispose
of such portion of any share or other security payable, issuable or transferable pursuant to this Plan of Arrangement as is necessary
to provide sufficient funds to the Company, SPAC or New SPAC, as the case may be, to enable it to comply with such deduction and withholding
requirement and the Company, SPAC or New SPAC, as the case may be, shall use commercially reasonable efforts to notify the other Person
of such disposition and remit the applicable portion of the net proceeds of such sale to the appropriate Governmental Authority and, if
applicable, any portion of such net proceeds that is not required to be so remitted shall be paid to the Person entitled to receive such
consideration. To the extent that amounts are so deducted or withheld by the Company, SPAC or New SPAC, as the case may be, such deducted
or withheld amounts shall be treated for all purposes of this Plan of Arrangement as having been paid to the holder of the Company Shares,
Company Convertible Instruments and/or Company Options (or intended recipients of compensatory payments) in respect of which such deduction
and withholding was made by the Company or New SPAC, as the case may be.
Section 3.5 No
Liens
Any exchange or transfer of
securities pursuant to this Plan of Arrangement shall be free and clear of any Liens or other claims of third parties of any kind.
Section 3.6 Paramountcy
From and after the Arrangement
Effective Time: (a) this Plan of Arrangement shall take precedence and priority over any and all Company Shares, Company Options and Company
Convertible Instruments issued or outstanding prior to the Arrangement Effective Time; and (b) the rights and obligations of the
Company Shareholders, the Company Optionholders, the holders of Company Convertible Instruments, the Company and its Subsidiaries, SPAC
and its Affiliates, the Exchange Agent and any transfer agent or other depositary therefor in relation to this Plan of Arrangement shall
be solely as provided for in this Plan of Arrangement.
Article
4
AMENDMENTS
Section 4.1 Amendments
to Plan of Arrangement
| (1) | The Parties may amend, modify and/or supplement this Plan of Arrangement at any time and from time to
time prior to the Arrangement Effective Time; provided that each such amendment, modification and/or supplement must be (a) set
out in writing, (b) approved by the Parties, each acting reasonably, (c) filed with the Court and, if made following the Company Shareholders
Meeting, approved by the Court, and (d) communicated to the Company Securityholders if and as required by the Court. |
| (2) | Any amendment, modification or supplement to this Plan of Arrangement may be proposed by either of the
Parties at any time prior to the Company Shareholders Meeting or the SPAC Shareholders’ Meeting (provided that the other Party has
consented thereto) with or without any other prior notice or communication, and if so proposed and accepted by the Persons voting at the
Company Shareholders Meeting or the SPAC Shareholders’ Meeting, as applicable (other than as may be required under the Interim Order),
shall become part of this Plan of Arrangement for all purposes. |
| (3) | Any amendment, modification or supplement to this Plan of Arrangement that is approved or directed by
the Court following the Company Shareholders Meeting and the SPAC Shareholders’ Meeting shall be effective only if (a) it is consented
to in writing by each of the Parties (in each case, acting reasonably), and (b) if required by the Court, it is consented to by some or
all of the Company Securityholders or the SPAC Shareholders voting in the manner directed by the Court. |
| (4) | Any amendment, modification or supplement to this Plan of Arrangement may be made following the granting
of the Final Order without filing such amendment, modification or supplement with the Court or seeking Court approval; provided
that (i) it concerns a matter which, in the reasonable opinion of the Parties, is of an administrative nature required to better give
effect to the implementation of this Plan of Arrangement and is not adverse to the interest of any Company Securityholder or (ii) is an
amendment contemplated in Section 4.1(5). |
| (5) | Any amendment, modification or supplement to this Plan of Arrangement may be made following the Arrangement
Effective Date unilaterally by New SPAC; provided that it concerns a matter which, in the reasonable opinion of New SPAC, is of
an administrative nature required to better give effect to the implementation of this Plan of Arrangement and is not adverse to the economic
interest of any former Company Securityholder. |
| (6) | This Plan of Arrangement may be withdrawn prior to the Arrangement Effective Time in accordance with the
terms of the Business Combination Agreement. |
Article
5
FURTHER ASSURANCES
Section 5.1 Further
Assurances
Notwithstanding that the transactions
and events set out in this Plan of Arrangement shall occur and shall be deemed to occur in the order set out in this Plan of Arrangement
without any further act or formality, following the Arrangement Effective Time, each of the Parties shall make, do and execute, or cause
to be made, done and executed, all such further acts, deeds, agreements, transfers, assurances, instruments or documents as may reasonably
be required or advisable by either of them in order to further document or evidence any of the transactions or events set out in this
Plan of Arrangement.
SCHEDULE “A”
TERMS AND CONDITIONS OF
COMMON SHARES AND PREFERRED SHARES OF NEW SPAC AMALCO
(See attached.)
SCHEDULE OF SHARE CAPITAL
The authorized capital of the Corporation shall
consist of:
| (a) | one class of shares, to be designated as “Common Shares”, in an unlimited number; and |
| (b) | one class of shares, to be designated as “First Preferred Shares”, issuable in series, to
be limited in number to an amount equal to not more than 20% of the number of issued and outstanding Common Shares at the time of issuance
of any First Preferred Shares, |
such shares having attached thereto the following
rights, privileges, restrictions and conditions.
COMMON SHARES
The rights, privileges, restrictions and conditions
attaching to the Common Shares shall be as follows:
The holders of the Common Shares shall be entitled
to receive notice of and to attend any meeting of the shareholders of the Corporation, except meetings at which only holders of a different
class or series of shares of the Corporation are entitled to vote, and shall be entitled to one vote for each Common Share.
Subject to the prior rights and privileges attached
to any other class or series of shares of the Corporation, the holders of the Common Shares shall be entitled to receive dividends at
such times and in such amounts as the directors of the Corporation may in their discretion from time to time declare.
Subject to the prior rights and privileges attached
to any other class or series of shares of the Corporation, upon the voluntary or involuntary liquidation, dissolution or winding-up of
the Corporation or any other distribution of its assets among its shareholders for the purpose of winding up its affairs (such event referred
to herein as a “Distribution”), each holder of Common Shares shall have the right to receive, in cash or other assets,
for each Common Share held, from out of (but only to the extent of) the remaining property of the Corporation legally available for distribution
to shareholders, its pro rata share of such remaining property based on the number of Common Shares held thereby, and shall rank equally
with all holders of Common Shares with respect to such Distribution.
FIRST PREFERRED SHARES
The rights, privileges, restrictions and conditions
attaching to the First Preferred Shares, as a class, shall be as follows:
| (a) | Subject to the filing of Articles of Amendment in accordance with the Business Corporations Act
(Ontario) (the “Act”), the Board of Directors may at any time and from time to time issue the First Preferred Shares
in one or more series, each series to consist of such number of shares as may, before the issuance thereof, be determined by the Board
of Directors. |
| (b) | Subject to the filing of Articles of Amendment in accordance with the Act and the provisions, the Board
of Directors may from time to time fix, before issuance, the designation, rights, privileges, restrictions and conditions attaching to
each series of First Preferred Shares including, without limiting the generality of the foregoing, the amount, if any, specified as being
payable preferentially to such series on a Distribution; the extent, if any, of further participation on a Distribution; voting rights,
if any; and dividend rights (including whether such dividends be preferential, or cumulative or non-cumulative), if any. |
The holders of each series of First Preferred
Shares shall be entitled, in priority to holders of Common Shares and any other shares of the Corporation ranking junior to the First
Preferred Shares from time to time with respect to the payment of dividends, to be paid rateably with holders of each other series of
First Preferred Shares, the amount of accumulated dividends, if any, specified as being payable preferentially to the holders of such
series.
In the event of a Distribution, holders of each
series of First Preferred Shares shall be entitled, in priority to holders of Common Shares and any other shares of the Corporation ranking
junior to the First Preferred Shares from time to time with respect to payment on a Distribution, to be paid rateably with holders of
each other series of First Preferred Shares the amount, if any, specified as being payable preferentially to the holders of such series
on a Distribution.
Schedule
“B”
EXHIBIT G TO THE BUSINESS COMBINATION AGREEMENT
FORM OF NEW SPAC BYLAWS
(See attached.)
BOREALIS FOODS
INC.
BY-LAW NO. 1
Table
of Contents
|
Page |
Section 1 DEFINITIONS |
1 |
|
|
Section 2 REGISTERED OFFICE |
2 |
|
|
Section 3 SEAL |
3 |
|
|
Section 4 DIRECTORS |
3 |
|
|
|
4.1 |
Number |
3 |
|
4.2 |
Vacancies |
3 |
|
4.3 |
Powers |
3 |
|
4.4 |
Duties |
3 |
|
4.5 |
Qualification |
3 |
|
4.6 |
Term of Office |
4 |
|
4.7 |
Election |
4 |
|
4.8 |
Consent to Election |
4 |
|
4.9 |
Removal |
4 |
|
4.10 |
Vacation of Office |
4 |
|
4.11 |
Validity of Acts |
5 |
|
|
|
|
Section 5 MEETINGS OF DIRECTORS |
5 |
|
|
|
|
|
5.1 |
Place of Meeting |
5 |
|
5.2 |
Notice |
5 |
|
5.3 |
Waiver of Notice |
5 |
|
5.4 |
Omission of Notice |
6 |
|
5.5 |
Electronic, Telephone Participation Etc. |
6 |
|
5.6 |
Adjournment |
6 |
|
5.7 |
Quorum and Voting |
6 |
|
5.8 |
Resolution in Lieu of Meeting |
6 |
|
|
|
|
Section 6 COMMITTEES OF DIRECTORS |
7 |
|
|
|
|
|
6.1 |
General |
7 |
|
6.2 |
Audit Committee |
8 |
|
|
|
|
Section 7 REMUNERATION OF DIRECTORS, OFFICERS AND EMPLOYEES |
8 |
|
|
Section 8 SUBMISSION OF CONTRACTS OR TRANSACTIONS TO SHAREHOLDERS FOR APPROVAL |
9 |
|
|
Section 9 CONFLICT OF INTEREST |
9 |
|
|
Section 10 FOR THE PROTECTION OF DIRECTORS AND OFFICERS |
9 |
|
|
Section 11 INDEMNITIES TO DIRECTORS AND OTHERS |
10 |
|
|
Section 12 OFFICERS |
11 |
|
|
|
|
|
12.1 |
Appointment of Officers |
11 |
|
12.2 |
Removal of Officers and Vacation of Office |
11 |
|
12.3 |
Vacancies |
11 |
|
12.4 |
Chair of the Board |
11 |
|
12.5 |
President |
12 |
|
12.6 |
Vice-President |
12 |
|
12.7 |
Secretary |
12 |
|
12.8 |
Treasurer |
12 |
|
12.9 |
Assistant Secretary and Assistant Treasurer |
12 |
|
12.10 |
Managing Director |
13 |
|
12.11 |
Duties of Officers may be Delegated |
13 |
|
12.12 |
Agents and Attorneys |
13 |
Table
of Contents
(continued)
|
Page |
Section 13 SHAREHOLDERS’ MEETINGS |
13 |
|
|
|
|
|
13.1 |
Annual Meeting |
13 |
|
13.2 |
Special Meetings |
13 |
|
13.3 |
Meeting on Requisition of Shareholders |
13 |
|
13.4 |
Meetings held by Electronic Means and Electronic Voting |
14 |
|
13.5 |
Notice |
14 |
|
13.6 |
Waiver of Notice |
14 |
|
13.7 |
Omission of Notice |
14 |
|
13.8 |
Record Dates |
14 |
|
13.9 |
Chair of the Meeting |
15 |
|
13.10 |
Votes |
15 |
|
13.11 |
Right to Vote |
15 |
|
13.12 |
Proxies |
16 |
|
13.13 |
Adjournment |
17 |
|
13.14 |
Quorum |
17 |
|
13.15 |
Persons Entitled to be Present |
17 |
|
13.16 |
Resolution in Lieu of Meeting |
17 |
|
13.17 |
Advance Notice Advance Notice of Shareholder Nominations and Proposals |
18 |
|
|
|
|
Section 14 SHARES AND TRANSFERS |
20 |
|
|
|
|
|
14.1 |
Issuance |
20 |
|
14.2 |
Security Certificates |
20 |
|
14.3 |
Agent |
21 |
|
14.4 |
Dealings with Registered Holder |
21 |
|
14.5 |
Defaced, Destroyed, Stolen or Lost Security Certificates |
21 |
|
14.6 |
Enforcement of Lien for Indebtedness |
21 |
|
14.7 |
Electronic, Book-Based or Other Non-Certificated Registered Positions |
22 |
|
|
|
|
Section 15 DIVIDENDS |
22 |
|
|
|
|
|
15.1 |
Dividends |
22 |
|
15.2 |
Joint Shareholders |
22 |
|
15.3 |
Dividend Payments |
23 |
|
|
|
|
Section 16 VOTING SECURITIES IN OTHER BODIES CORPORATE |
23 |
|
|
Section 17 NOTICES, ETC. |
23 |
|
|
|
|
|
17.1 |
Service |
23 |
|
17.2 |
Failure to Locate Shareholder |
24 |
|
17.3 |
Shares Registered in More than one Name |
24 |
|
17.4 |
Persons Becoming Entitled by Operation of Law |
24 |
|
17.5 |
Signatures upon Notices |
24 |
|
17.6 |
Computation of Time |
24 |
|
17.7 |
Proof of Service |
24 |
|
|
|
|
Section 18 CUSTODY OF SECURITIES |
24 |
|
|
Section 19 EXECUTION OF CONTRACTS, ETC. |
25 |
|
|
Section 20 FISCAL PERIOD |
25 |
|
|
Section 21 REPEAL OF PREVIOUS BY-LAWS |
25 |
BY-LAW NO. 1
A by-law relating generally to the conduct of
the business and affairs of BOREALIS FOODS INC., a corporation amalgamated under the Business Corporations Act (Ontario)
(hereinafter called the “Corporation”) is made as follows:
Section
1
DEFINITIONS
In this by-law and all other by-laws of the Corporation,
unless the context otherwise specifies or requires:
| (a) | “Act” means the Business Corporations Act (Ontario) and the regulations made thereunder,
as from time to time amended, and in the case of such amendment any reference in the by-laws shall be read as referring to the amended
provisions thereof; |
| (b) | “Affiliate” has the meaning given to it in the Act; |
| (c) | “Applicable Securities Laws” means the applicable securities legislation of each relevant
province and territory of Canada, as amended from time to time, the written rules, regulations and forms made or promulgated under any
such legislation and the published national instruments, multilateral instruments, policies, bulletins and notices of the securities commissions
and similar regulatory authorities of each province or territory of Canada; |
| (d) | “Associate” has the meaning given to it in the Act; |
| (e) | “articles” means the original or restated articles of incorporation, or articles of amendment,
amalgamation or continuance of the Corporation, as applicable; |
| (f) | “Beneficial Ownership” has the meaning given to it in the Act, and “beneficially
owns” and “beneficially owned” have corresponding meanings; |
| (g) | “Board” or “board” means the board of directors of the Corporation; |
| (h) | “by-laws” or “By-laws” means this by-law and all other by-laws of the
Corporation from time to time in force and effect; |
| (i) | “Close of Business” means 5:00 p.m. (Toronto time) on a business day in that city; |
| (j) | “Chair of the Board” means the chairperson of the Board appointed from time to time; |
| (k) | “Designated Stock Exchange” means any United States national securities exchange on which
the securities of the Corporation are listed for trading, including the Nasdaq Capital Market. |
| (l) | “Director Nomination” means the nomination of one or more individuals for the election
of directors to the Board made (a) by or at the direction of the Board in a notice of meeting or any supplement thereto; (b) before the
meeting by or at the direction of the Board; or (c) by a shareholder of the Corporation in accordance with Section 13.17; |
| (m) | “Meeting” means an annual meeting, an annual and special meeting or a special meeting
(which is not an annual and special meeting) called for the purpose of electing directors by the Corporation’s shareholders entitled to
vote on such matters; |
| (n) | “Meeting Notice Date” means the date on which the first notice to the shareholders or
first Public Announcement of the date of the meeting was issued by the Corporation; |
| (o) | “NI 51-102” means National Instrument 51-102 Continuous Disclosure Obligations
of the Canadian Securities Administrators; |
| (p) | “Nominating Shareholder” has the meaning given to it in Section 13.17(b); |
| (q) | “Nomination Notice” has the meaning given to it in Section 13.17(b); |
| (r) | “person” has the meaning given to it in the Act; |
| (s) | “Public Announcement” means disclosure in a (a) press release reported in a national
news service in Canada or (b) a document publicly filed by the Corporation or its transfer agent and registrar under the Corporation’s
profile on SEDAR; |
| (t) | “SEDAR” means the System for Electronic Document Analysis and Retrieval at www.sedar.com; |
| (u) | “STA” means the Securities Transfer Act (Ontario) and the regulations made thereunder,
as from time to time amended, and in the case of such amendment any reference in the by-laws shall be read as referring to the amended
provisions thereof; |
| (v) | all terms used in the by-laws that are defined in the Act and are not otherwise defined in the by-laws
shall have the meanings given to such terms in the Act; |
| (w) | words importing the singular number only shall include the plural and vice versa; words importing the
masculine gender shall include the feminine and neuter genders; |
| (x) | the headings used in the by-laws are inserted for reference purposes only and are not to be considered
or taken into account in construing the terms or provisions thereof or to be deemed in any way to clarify, modify or explain the effect
of any such terms or provisions; |
| (y) | the term “including”, “includes” and “include” means “including (or
includes or include) without limitation”; and |
| (z) | any reference to “Section” is to a section, sub-section or paragraph of these by-laws, unless
otherwise indicated. |
Section
2
REGISTERED OFFICE
The Corporation shall at all times have a registered
office in Ontario. The initial registered office of the Corporation shall be 1540 Cornwall Road, Suite 104, Oakville, Ontario L6J 7W5.
The Corporation may at any time by special resolution of its directors change the location of its registered office within Ontario.
Section
3
SEAL
The directors may by resolution from time to time
adopt and change a corporate seal of the Corporation.
Section
4
DIRECTORS
The number of directors shall be the number fixed
by the articles, or where the articles specify a variable number, the number shall not be less than the minimum and not more than the
maximum number so specified, and in either case shall not be fewer than three individuals so long as the Corporation remains an “offering
corporation” (as defined in the Act). Where a minimum and maximum number of directors of the Corporation is provided for in its
articles, the number of directors of the Corporation and the number of directors to be elected at the annual meeting of the shareholders
shall be such number as shall be determined from time to time by special resolution or, if the special resolution empowers the directors
to determine the number, by resolution of the directors. So long as the Corporation remains an “offering corporation”
(as defined in the Act), at least one third of the directors shall not be officers or employees of the Corporation or any of its affiliates.
Subject to section 124 of the Act, a quorum of
directors may fill a vacancy among the directors. If there is not a quorum of directors, or if there has been a failure to elect the number
of directors required by the articles or the Act, the directors then in office shall forthwith call a special meeting of shareholders
to fill the vacancy and, if they fail to call a meeting or if there are no directors then in office, the meeting may be called by any
shareholder. A director appointed or elected to fill a vacancy holds office for the unexpired term of his or her predecessor.
The directors shall manage or supervise the management
of the business and affairs of the Corporation and may exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation and are not expressly directed or required to be done in some other manner by the Act, the articles, the by-laws,
any special resolution of the shareholders of the Corporation, or by statute.
Every director and officer of the Corporation
in exercising his or her powers and discharging his or her duties to the Corporation shall:
| (a) | act honestly and in good faith with a view to the best interests of the Corporation; and |
| (b) | exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. |
The following persons are disqualified from being
a director of the Corporation:
| (a) | a person who is less than 18 years of age; |
| (b) | a person who has been found under the Substitute Decisions Act, 1992 or under the Mental Health
Act to be incapable of managing property or who has been found to be incapable by a court in Canada or elsewhere; |
| (c) | a person who is not an individual; and |
| (d) | a person who has the status of bankrupt. |
Unless the articles otherwise provide, a director
of the Corporation is not required to hold shares issued by the Corporation.
A director’s term of office (subject to any applicable
provisions of the Corporation’s articles and subject to the election of such director for an expressly stated term) shall be from the
date such director is elected or appointed until the close of the first annual meeting of shareholders following such director’s election
or appointment or until a successor to such director is elected or appointed.
Subject to sections 119, 120 and 124 of the Act,
the shareholders of the Corporation shall, at the first meeting of shareholders and at each succeeding annual meeting at which an election
of directors is required, elect directors to hold office for a term expiring not later than the close of the third annual meeting of shareholders
following the election. A director not elected for an expressly stated term ceases to hold office at the close of the first annual meeting
of shareholders following his or her election but, if qualified, is eligible for re-election. Notwithstanding the foregoing, if directors
are not elected at a meeting of shareholders, the incumbent directors continue in office until their successors are elected.
If a meeting of shareholders fails to elect the
number or the minimum number of directors required by the articles or by section 125 of the Act by reason of the disqualification, incapacity
or death of any candidates, the directors elected at that meeting if they constitute a quorum, may exercise all the powers of the directors,
pending the holding of a meeting of shareholders in accordance with subsection 124(3) of the Act.
Subject to section 119 of the Act, the election
or appointment of a director is not effective unless the person elected or appointed consents in writing before or within 10 days after
the election or appointment.
Subject to sections 120 and 122 of the Act, the
shareholders of the Corporation may by ordinary resolution at an annual or special meeting remove any director or directors from office
before the expiration of his or her term of office and may, subject to section 124 of the Act, elect any person in his or her stead for
the remainder of the director’s term.
A director of the Corporation ceases to hold office
when:
| (a) | the director dies or, subject to subsection 119(2) of the Act, resigns; |
| (b) | the director is removed from office in accordance with section 122 of the Act; or |
| (c) | the director becomes disqualified under subsection 118(1) of the Act. |
A resignation of a director becomes effective
at the time a written resignation is received by the Corporation, or at the time specified in the resignation, whichever is later.
An act done by a director or by an officer is
not invalid by reason only of any defect that is thereafter discovered in his or her appointment, election or qualification.
Section
5
MEETINGS OF DIRECTORS
Unless the articles otherwise provide, meetings
of directors and of any committee of directors may be held at any place within or outside Ontario except where the Corporation is a non-resident
Corporation, and in any financial year of the Corporation, a majority of the meetings of the board of directors need not be held at a
place within Canada. A meeting of directors may be convened by the Chair of the Board (if any), the President (if any) or any director
at any time and the Secretary (if any) or any other officer or any director shall, as soon as reasonably practicable following receipt
of a direction from any of the foregoing, send a notice of the applicable meeting to the directors. A quorum of the directors may, at
any time, call a meeting of the directors for the transaction of any business the general nature of which is specified in the notice calling
the meeting.
Notice of the time and place for the holding of
any meeting of directors or of any committee of directors shall be sent to each director, or each director who is a member of such committee,
as the case may be, not less than 48 hours before the time of the meeting; provided that a meeting of directors, or of any committee of
directors, may be held at any time without notice if all the directors or members of such committee are present (except where a director
attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully
called) or if all the absent directors waive notice of the meeting.
For the first meeting of directors to be held
following the election of directors at an annual or special meeting of the shareholders or for a meeting of directors at which a director
is appointed to fill a vacancy in the board, no notice of such meeting need be given to the newly elected or appointed director or directors
in order for the meeting to be duly constituted, provided a quorum of the directors is present.
Notice of any meeting of directors or of any committee
of directors or the time for the giving of any such notice or any irregularity in any meeting or in the notice thereof may be waived by
any director in writing or by facsimile or electronic mail addressed to the Corporation or in any other manner, and any such waiver may
be validly given either before or after the meeting to which such waiver relates. Attendance of a director at any meeting of directors
or of any committee of directors is a waiver of notice of such meeting, except when a director attends a meeting for the express purpose
of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.
The accidental omission to give notice of any
meeting of directors or of any committee of directors or the non-receipt of any notice by any person shall not invalidate any resolution
passed or any proceeding taken at such meeting.
5.5 | Electronic, Telephone Participation Etc. |
If all of the directors of the Corporation consent,
a director may participate in a meeting of directors or of any committee of directors by means of a telephonic, electronic or other communication
facility that permits all persons participating in the meeting to communicate with each other simultaneously and instantaneously. A director’s
consent shall be effective whether given before or after the meeting to which it relates and may be given with respect to all meetings
of the board or a committee thereof held while the director holds office. A director participating in such a meeting by such means is
deemed for the purposes of the Act and this by-law to be present at that meeting.
Any meeting of directors or of any committee of
directors may be adjourned from time to time by the chair of the meeting, with the consent of the meeting, to a fixed time and place.
Notice of an adjourned meeting of directors or committee of directors is not required to be given if the time and place of the adjourned
meeting is announced at the original meeting. Any adjourned meeting shall be duly constituted if held in accordance with the terms of
the adjournment and a quorum is present thereat. The directors who formed a quorum at the original meeting are not required to form the
quorum at the adjourned meeting. If there is no quorum present at the adjourned meeting, the original meeting shall be deemed to have
terminated forthwith after its adjournment. Any business may be brought before or dealt with at the adjourned meeting that might have
been brought before or dealt with at the original meeting in accordance with the notice calling the same.
Subject to the articles, a majority of the number
of directors or minimum number of directors required by the articles constitutes a quorum at any meeting of directors and, notwithstanding
any vacancy among the directors, a quorum of directors may exercise all the powers of the directors, but in no case shall a quorum be
less than two-fifths of the number of directors. If the Corporation has fewer than three directors, all of the directors must be present
at any meeting of directors to constitute a quorum. Subject to subsection 124(1) of the Act, directors shall not transact business at
a meeting of directors unless a quorum is present. Questions arising at any meeting of directors shall be decided by a majority of votes.
In the case of an equality of votes, the chair of the meeting in addition to his or her original vote shall not have a second or casting
vote.
5.8 | Resolution in Lieu of Meeting |
A resolution in writing, signed by all the directors
entitled to vote on that resolution at a meeting of directors or a committee of directors, is as valid as if it had been passed at a meeting
of directors or a committee of directors. A resolution in writing dealing with all matters required by the Act or this by-law to be dealt
with at a meeting of directors, and signed by all the directors entitled to vote at that meeting, satisfies all the requirements of the
Act and this by-law relating to meetings of directors.
Section
6
COMMITTEES OF DIRECTORS
The directors may from time to time appoint from
their number a managing director, or a committee of directors, and may delegate to such managing director or such committee any of the
powers of the directors, except that (unless the Act otherwise permits) no managing director or committee shall have the authority to:
| (a) | submit to the shareholders any question or matter requiring the approval of the shareholders; |
| (b) | fill a vacancy among the directors or appoint or remove any of the chief executive officers, however designated,
the chief financial officer, however designated, the chair or the president of the Corporation; |
| (c) | subject to section 184 of the Act, issue securities except in the manner and on the terms authorized by
the directors; |
| (e) | purchase, redeem or otherwise acquire shares issued by the Corporation; |
| (f) | pay a commission referred to in section 37 of the Act; |
| (g) | approve a management information circular referred to in Part VIII of the Act; |
| (h) | approve a take-over bid circular, directors’ circular or issuer bid circular referred to in Part XX of
the Securities Act (Ontario); |
| (i) | approve any financial statements referred to in clause 154(1)(b) of the Act and Part XVIII of the Securities
Act (Ontario); |
| (j) | approve an amalgamation under section 177 of the Act or an amendment to the articles under subsection
168(2) or (4) of the Act; |
| (k) | adopt, amend or repeal by-laws of the Corporation; or |
| (l) | exercise any other power which under the Act a committee of directors has no authority to exercise. |
Notwithstanding the foregoing and subject to the
articles, the directors may, by resolution, delegate to a director, a committee of directors, or an officer the power to:
| (a) | borrow money upon the credit of the Corporation; |
| (b) | issue, reissue, sell or pledge debt obligations of the Corporation; |
| (c) | give a guarantee on behalf of the Corporation to secure performance of an obligation of any person; and |
| (d) | mortgage, hypothecate, pledge or otherwise create a security interest in all or any property of the Corporation,
owned or subsequently acquired, to secure any obligation of the Corporation. |
Subject to subsection 158(1.1) of the Act, so
long as the Corporation remains an “offering corporation” (as defined in the Act), the board shall appoint from among
their number an audit committee to be composed of not fewer than three directors, a majority of whom are not officers or employees of
the Corporation or any of its affiliates, to hold office until the next annual meeting of shareholders. At any time when the Corporation
is not an offering corporation, the directors may (but shall not be required to) appoint from among their number an audit committee to
be composed of such number of directors as may be determined by the board from time to time in accordance with the Act.
The directors shall adopt a formal written audit
committee charter and review and assess the adequacy of the formal written charter on an annual basis. For so long as the shares of the
Corporation are listed or quoted on the Designated Stock Exchange, the composition and responsibilities of the Audit Committee shall comply
with the rules and regulations of the Securities and Exchange Commission and the Designated Stock Exchange.
Each member of the audit committee shall serve
at the pleasure of the board and, in any event, only so long as such member is a director of the Corporation. The directors may fill vacancies
in the audit committee by election from among their number. The audit committee shall have power to fix its quorum at not less than a
majority of its members and to determine its own rules of procedure subject to any requirements imposed by the board from time to time.
The auditor of the Corporation is entitled to
receive notice of every meeting of the audit committee and, at the expense of the Corporation, to attend and be heard thereat. If requested
by a member of the audit committee, the auditor shall attend every meeting of the audit committee held during the term of office of the
auditor. The auditor of the Corporation or any member of the audit committee may call a meeting of the audit committee.
The audit committee shall review the financial
statements of the Corporation referred to in section 154 of the Act, and shall report thereon to the board before such financial statements
are approved under section 159 of the Act, and shall have such other powers and duties as may from time to time by resolution be assigned
to it by the board, including those required by the Designated Stock Exchange.
Section
7
REMUNERATION OF DIRECTORS, OFFICERS AND EMPLOYEES
Subject to the articles and the rules and regulations
of the Securities and Exchange Commission and the Designated Stock Exchange, the directors of the Corporation may fix the remuneration
of the directors, officers and employees of the Corporation. Any remuneration paid to a director of the Corporation shall be in addition
to the salary paid to such director in his or her capacity as an officer or employee of the Corporation. Subject to section 132 of the
Act, the directors may also by resolution award special remuneration to any director in undertaking any special services on the Corporation’s
behalf other than the routine work ordinarily required of a director of the Corporation. The confirmation of any such resolution by the
shareholders shall not be required. The directors, officers and employees shall also be entitled to be paid their travelling and other
expenses properly incurred by them in connection with the affairs of the Corporation.
Section
8
SUBMISSION OF CONTRACTS OR TRANSACTIONS TO SHAREHOLDERS FOR APPROVAL
The directors in their discretion may submit any
contract, act or transaction for approval, ratification or confirmation at any annual meeting of the shareholders or at any special meeting
of the shareholders called for the purpose of considering the same and subject to the Act, any contract, act or transaction that shall
be approved, ratified or confirmed by resolution passed by a majority of the votes cast at any such meeting (unless any different or additional
requirement is imposed by the Act or other applicable law or by the Corporation’s articles or any other by-law) shall be as valid and
as binding upon the Corporation and upon all the shareholders as though it had been approved, ratified and/or confirmed by every shareholder
of the Corporation.
Section
9
CONFLICT OF INTEREST
A director or officer of the Corporation who is
a party to a material contract or transaction or proposed material contract or proposed transaction with the Corporation, or who is a
director or an officer of, or has a material interest in, any person who is a party to a material contract or transaction or proposed
material contract or proposed transaction with the Corporation, shall disclose, in writing to the Corporation or by requesting to have
entered in the minutes of meetings of directors, the nature and extent of his or her interest at the time and in the manner provided in
the Act. Except as provided in the Act, no such director of the Corporation shall attend any part of a meeting of directors during which
the contract or transaction is discussed, and no such director shall vote on any resolution to approve such contract or transaction. If
a material contract is made or a material transaction is entered into between the Corporation and one or more of its directors or officers,
or between the Corporation and another person of which a director or officer of the Corporation is a director or officer or in which he
or she has a material interest, the director or officer is not accountable to the Corporation or its shareholders for any profit or gain
realized from the contract or transaction, and the contract is neither void nor voidable, by reason only of that relationship or by reason
only that a director is present at or is counted to determine the presence of a quorum at the meeting of directors that authorized the
contract or transaction, if the director or officer disclosed his or her interest in accordance with the Act, and the contract or transaction
was reasonable and fair to the Corporation at the time it was approved.
Even if these conditions are not met, a director
or officer, acting honestly and in good faith, shall not be not accountable to the Corporation or to its shareholders for any profit or
gain realized from any such contract or transaction, by reason only of his or her holding the office of director or officer, and the contract
or transaction, if it was reasonable and fair to the Corporation at the time it was approved, is not by reason only of the director’s
or officer’s interest therein void or voidable, where the contract or transaction is confirmed or approved by special resolution at a
meeting of the shareholders duly called for that purpose, and the nature and extent of the director’s or officer’s interest in the contract
or transaction are disclosed in reasonable detail in the notice calling the meeting or in the information circular.
Section
10
FOR THE PROTECTION OF DIRECTORS AND OFFICERS
No director or officer of the Corporation shall
be liable to the Corporation for the acts, receipts, neglects or defaults of any other director or officer or employee or for joining
in any receipt or act for conformity or for any loss, damage or expense happening to the Corporation through the insufficiency or deficiency
of title to any property acquired by the Corporation or for or on behalf of the Corporation or for the insufficiency or deficiency of
any security in or upon which any of the monies of or belonging to the Corporation shall be placed out or invested or for any loss or
damage arising from the bankruptcy, insolvency or tortious act of any person, firm or corporation including any person, firm or corporation
with whom or which any monies, securities or effects shall be lodged or deposited or for any loss, conversion, misapplication or misappropriation
of or any damage resulting from any dealings with any monies, securities or other assets belonging to the Corporation or for any other
loss, damage or misfortune whatever that may happen in the execution of the duties of such director’s or officer’s respective office of
trust or in relation thereto, unless the same shall happen by or through the director’s or officer’s failure to exercise the powers and
to discharge the duties of office honestly, in good faith with a view to the best interests of the Corporation, and in connection therewith
to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances, provided that nothing
herein contained shall relieve a director or officer from the duty to act in accordance with the Act or relieve such director or officer
from liability under the Act. If any director or officer of the Corporation shall be employed by or shall perform services for the Corporation
otherwise than as a director or officer or shall be a member of a firm or a shareholder, director or officer of a body corporate which
is employed by or performs services for the Corporation, the fact that the director or officer is a shareholder, director or officer of
the Corporation or body corporate or member of the firm shall not disentitle such director or officer or such firm or body corporate,
as the case may be, from receiving proper remuneration for such services.
Section
11
INDEMNITIES TO DIRECTORS AND OTHERS
(1) | The Corporation shall indemnify a director or officer of the Corporation, a former director or officer
of the Corporation or another individual who acts or acted at the Corporation’s request as a director or officer, or an individual acting
in a similar capacity, of another entity, or any other individual permitted by the Act to be so indemnified in the manner and to the fullest
extent permitted by the Act. Without limiting the generality of the foregoing, subject to section 136 of the Act, the Corporation shall
indemnify a director or officer of the Corporation, a former director or officer of the Corporation or another individual who acts or
acted at the Corporation’s request as a director or officer, or an individual acting in a similar capacity, of another entity, against
all costs, charges and expenses, including costs reasonably incurred in the defence of an action or proceeding and an amount paid to settle
an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative
or other proceeding in which the individual is involved because of that association with the Corporation or other entity. |
(2) | The Corporation shall advance moneys to a director, officer or other individual for the costs, charges
and expenses of a proceeding referred to in Section 11(1). The individual shall repay the money if the individual does not fulfill the
conditions of Section 11(3). |
(3) | The Corporation shall not indemnify an individual under Section 11(1) unless the individual: |
| (i) | acted honestly and in good faith with a view to the best interests of the Corporation, or, as the case
may be, to the best interests of the other entity for which the individual acted as a director or officer or in a similar capacity at
the Corporation’s request; and |
| (ii) | in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty,
the individual had reasonable grounds for believing that the individual’s conduct was lawful. |
(4) | The Corporation shall, subject to the Act, with the approval of a court, indemnify an individual referred
to in Section 11(1), or advance moneys under Section 11(2), in respect of an action by or on behalf of the Corporation or other entity
to obtain a judgment in its favour, to which the individual is made a party because of the individual’s association with the Corporation
or other entity as described in Section 11(1), against all costs, charges and expenses reasonably incurred by the individual in connection
with such action, if the individual fulfils the conditions set out in Section 11(3). |
(5) | The Corporation may purchase and maintain insurance for the benefit of an individual referred to in Section
11(1) against any liability incurred by that individual to the extent permitted by the Act. |
Section
12
OFFICERS
12.1 | Appointment of Officers |
Subject to the articles, the directors annually
or as often as may be required may appoint from among themselves a Chair of the Board (either on a full-time or part-time basis) and may
appoint a President, one or more Vice- Presidents (to which title may be added words indicating seniority or function), a Secretary, a
Treasurer and one or more assistants to any of the officers so appointed. None of such officers except the Chair of the Board needs to
be a director of the Corporation although a director may be appointed to any office of the Corporation. Two or more offices of the Corporation
may be held by the same person. The directors may from time to time appoint such other officers, employees and agents as they shall deem
necessary who shall have such authority and shall perform such functions and duties as may from time to time be prescribed by resolution
of the directors. The directors may from time to time and subject to the provisions of the Act, vary, add to or limit the duties and powers
of any officer, employee or agent.
12.2 | Removal of Officers and Vacation of Office |
Subject to the articles, all officers, employees
and agents shall be subject to removal by resolution of the directors at any time, with or without cause.
An officer of the Corporation ceases to hold office
when such officer dies, resigns or is removed from office. A resignation of an officer becomes effective at the time a written resignation
is sent to the Corporation, or at the time specified in the resignation, whichever is later.
If the office of Chair of the Board, President,
Vice-President, Secretary, Treasurer, or any other office created by the directors pursuant to Section 12.1 hereof shall be or become
vacant by reason of death, resignation, removal from office or in any other manner whatsoever, the directors may appoint an individual
to fill such vacancy.
The Chair of the Board (if any) shall, if present,
preside as chair at all meetings of the board and at all meetings of the shareholders of the Corporation. The Chair of the Board shall
have such other powers and shall perform such other duties as may from time to time be assigned to him or her by resolution of the directors.
The President (if any) shall, unless otherwise
determined by resolution of the board, be the chief executive officer of the Corporation and shall, subject to the direction of the board,
exercise general supervision and control over the business and affairs of the Corporation. In the absence of the Chair of the Board (if
any), and if the President is also a director of the Corporation, the President shall, when present, preside as chair at all meetings
of directors and the shareholders of the Corporation. The President shall have such other powers and shall perform such other duties as
may from time to time be assigned to him or her by resolution of the directors or as are incident to his or her office.
The Vice-President (if any) or, if more than one,
the Vice-Presidents in order of seniority, shall be vested with all the powers and shall perform all the duties of the President in the
absence or inability or refusal to act of the President, provided, however, that a Vice-President who is not a director shall not preside
as chair at any meeting of directors or shareholders. The Vice-President or, if more than one, the Vice-Presidents shall have such other
powers and shall perform such other duties as may from time to time be assigned to him, her or them by resolution of the directors.
Unless another officer has been appointed for
that purpose, the Secretary (if any) shall give or cause to be given notices for all meetings of directors, any committee of directors
and shareholders when directed to do so and shall, subject to the provisions of the Act, maintain the records referred to in section 140
of the Act. The Secretary shall have such other powers and shall perform such other duties as may from time to time be assigned to the
Secretary by resolution of the directors or as are incident to the office of the Secretary.
Subject to the provisions of any resolution of
the directors, the Treasurer (if any) or such other officer who has been appointed for that purpose shall have the care and custody of
all the funds and securities of the Corporation and shall deposit the same in the name of the Corporation in such bank or banks or with
such other depositary or depositaries as the directors may by resolution direct; provided that the Treasurer may from time to time arrange
for the temporary deposit of moneys of the Corporation in banks, trust companies or other financial institutions within or outside Canada
not so directed by the board for the purpose of facilitating transfer thereof to the credit of the Corporation in a bank, trust company
or other financial institution so directed. Unless another officer has been appointed for that purpose, the Treasurer shall prepare and
maintain adequate accounting records. The Treasurer shall have such other powers and shall perform such other duties as may from time
to time be assigned to such person by resolution of the directors or as are incident to the office of the Treasurer. The Treasurer may
be required to give such bond for the faithful performance of his or her duties as the directors in their sole discretion may require
and no director shall be liable for failure to require any such bond or for the insufficiency of any such bond or for any loss by reason
of the failure of the Corporation to receive any indemnity thereby provided.
12.9 | Assistant Secretary and Assistant Treasurer |
The Assistant Secretary (if any) or, if more than
one, the Assistant Secretaries in order of seniority, and the Assistant Treasurer (if any) or, if more than one, the Assistant Treasurers
in order of seniority, shall assist the Secretary and Treasurer, respectively, in the performance of his or her duties and shall be vested
with all the powers and shall perform all the duties of the Secretary and Treasurer, respectively, in the absence or inability or refusal
to act of the Secretary or Treasurer as the case may be. The Assistant Secretary or, if more than one, the Assistant Secretaries and the
Assistant Treasurer or, if more than one, the Assistant Treasurers shall sign such contracts, documents or instruments in writing as require
his, her or their signatures, respectively, and shall have such other powers and shall perform such other duties as may from time to time
be assigned to him, her or them by resolution of the directors.
The Managing Director (if any) shall conform to
all lawful orders given to him or her by the directors and shall at all reasonable times give to the directors or any of them all information
they may require regarding the affairs of the Corporation.
12.11 | Duties of Officers may be Delegated |
In case of the absence or inability or refusal
to act of any officer of the Corporation or for any other reason that the directors may deem sufficient, the directors may delegate all
or any of the powers of such officer to any other officer or to any director for the time being.
12.12 | Agents and Attorneys |
The Corporation shall have power from time to
time to appoint agents or attorneys for the Corporation in or outside Canada with such powers (including the power to subdelegate) of
management, administration or otherwise as may be thought fit.
Section
13
SHAREHOLDERS’ MEETINGS
Subject to the articles, the annual meeting of
the shareholders of the Corporation shall be held at such place in or outside Ontario as the directors determine or, in the absence of
such a determination, at the place where the registered office of the Corporation is located.
The directors of the Corporation may at any time
call a special meeting of shareholders to be held at such place in or outside Ontario as the directors may determine.
13.3 | Meeting on Requisition of Shareholders |
The holders of not less than 5% of the issued
shares of the Corporation that carry the right to vote at a meeting sought to be held may requisition the directors to call a meeting
of shareholders for the purposes stated in the requisition. The requisition shall state the business to be transacted at the meeting and
shall be sent to each director and to the registered office of the Corporation. Subject to subsection 105(3) of the Act, upon receipt
of the requisition, the directors shall call a meeting of shareholders to transact the business stated in the requisition. If the directors
are obligated to call a meeting and do not do so within 21 days after receiving the requisition call a meeting, any shareholder who signed
the requisition may call the meeting.
13.4 | Meetings held by Electronic Means and Electronic Voting |
Subject to the articles, a meeting of the shareholders
of the Corporation may be held by telephonic or electronic means (as defined in the Act) and a shareholder who, through those means, votes
at the meeting or establishes a communications link to the meeting shall be deemed, for purposes of the Act and this by-law, to be present
at the meeting.
A notice in writing of a meeting of shareholders,
stating the day, hour and place of the meeting and if special business is to be transacted thereat, stating (i) the nature of that business
in sufficient detail to permit the shareholder to form a reasoned judgment on that business and (ii) the text of any special resolution
or by-law to be submitted to the meeting, shall be sent to each shareholder entitled to vote at the meeting, who on the record date for
notice is registered on the records of the Corporation or its transfer agent as a shareholder, to each director of the Corporation and
to the auditor of the Corporation not less than 21 days so long as the Corporation remains an “offering corporation”
(as defined in the Act), or in the case of a non-offering corporation not less than 10 days, but in either case not more than 50 days
before the meeting.
Notice of any meeting of shareholders or the time
for the giving of any such notice or any irregularity in any meeting or in the notice thereof may be waived by any shareholder, the duly
appointed proxy of any shareholder, any director or the auditor of the Corporation in writing or by facsimile or other form of recorded
electronic transmission addressed to the Corporation or in any other manner and any such waiver may be validly given either before or
after the meeting to which such waiver relates. Attendance of a shareholder or any other person entitled to attend at a meeting of shareholders
is a waiver of notice of such meeting, except where such person attends a meeting for the express purpose of objecting to the transaction
of any business on the grounds that the meeting is not lawfully called.
The accidental omission to give notice of any
meeting of shareholders to or the non-receipt of any notice by any person shall not invalidate any resolution passed or any proceeding
taken at any such meeting.
Subject to subsection 95(4) of the Act, the directors
may fix in advance a date as the record date for the determination of shareholders (i) entitled to receive payment of a dividend, (ii)
entitled to participate in a liquidation or distribution or (iii) for any other purpose except the right to receive notice of or to vote
at a meeting of shareholders, but such record date shall not precede by more than 50 days the particular action to be taken.
Subject to subsection 95(4) of the Act, the directors
may also fix in advance a date as the record date for the determination of shareholders entitled to receive notice of a meeting of shareholders,
but such record date shall not precede by more than 60 days or by less than 30 days the date on which the meeting is to be held.
If no record date is fixed,
| (a) | the record date for the determination of shareholders entitled to receive notice of a meeting of shareholders
shall be, |
| (i) | at the close of business on the last business day preceding the day on which the notice is given, or |
| (ii) | if no notice is given, the day on which the meeting is held; and |
| (b) | the record date for the determination of shareholders for any purpose other than to establish a shareholder’s
right to receive notice of a meeting or to vote shall be at the close of business on the day on which the directors pass the resolution
relating to that purpose. |
In the absence of the Chair of the Board (if any),
the President (if any) and any Vice-President (who is a director), the shareholders present and entitled to vote shall elect a director
of the Corporation as chair of the meeting and if no director is present or if all the directors present decline to take the chair then
the shareholders present shall elect one of their number to be chair.
Votes at meetings of shareholders may be cast
either personally or by proxy. Subject to the Act and Section 13.11, every question submitted to any meeting of shareholders shall be
decided on a show of hands, except when a ballot is required by the chair of the meeting or is demanded by a shareholder or proxyholder
entitled to vote at the meeting or is otherwise required by the Act. A shareholder or proxyholder may demand a ballot either before or
after any vote by a show of hands. At every meeting at which shareholders are entitled to vote, each shareholder present on his or her
own behalf and every proxyholder present shall have one vote. Upon any ballot at which shareholders are entitled to vote, each shareholder
present on his or her own behalf or by proxy shall (subject to the provisions, if any, of the articles) have one vote for every share
registered in the name of such shareholder. In the case of an equality of votes under this Section, the chair of the meeting shall not
have a second or casting vote in addition to the vote or votes to which he or she may be entitled as a shareholder or proxyholder.
At any meeting of shareholders, unless a ballot
is demanded, an entry in the minutes of a meeting of shareholders, following a vote on the applicable motion by a show of hands, to the
effect that the chair of the meeting declared a motion to be carried is admissible in evidence as proof of the fact, in the absence of
evidence to the contrary, without proof of the number or proportion of the votes recorded in favour of or against the motion, although
the chair may direct that a record be kept of the number or proportion of votes in favour of or against the motion for any purpose the
chair of the meeting considers appropriate.
If at any meeting a ballot is demanded on the
election of a chair for the meeting or on the question of adjournment or termination, the ballot shall be taken forthwith without adjournment.
If a ballot is demanded on any other question or as to the election of directors, the ballot shall be taken in such manner and either
at once or later at the meeting or after adjournment as the chair of the meeting directs. The result of a ballot shall be deemed to be
the resolution of the meeting at which the ballot was demanded. A demand for a ballot may be withdrawn.
Unless the articles otherwise provide, each share
of the Corporation entitles the holder thereof to one vote at a meeting of shareholders.
Where a body corporate or a trust, association
or other unincorporated organization is a shareholder of the Corporation, any individual authorized by a resolution of the directors of
the body corporate or the directors, trustees or other governing body of the association, trust or unincorporated organization, to represent
it at meetings of shareholders of the Corporation shall be recognized as the person entitled to vote at all such meetings of shareholders
in respect of the shares held by such body corporate or by such trust, association or other unincorporated organization and the chair
of the meeting may establish or adopt rules or procedures in relation to the recognition of a person to vote shares held by such body
corporate or by such trust, association or other unincorporated organization.
Where a person holds shares as a personal representative,
such person or his or her proxy is the person entitled to vote at all meetings of shareholders in respect of the shares so held by him
or her, and the chair of the meeting may establish or adopt rules or procedures in relation to the recognition of such person to vote
the shares in respect of which such person has been appointed as a personal representative.
Where a person mortgages, pledges or hypothecates
his or her shares, such person or such person’s proxy is the person entitled to vote at all meetings of shareholders in respect of such
shares so long as such person remains the registered owner of such shares unless, in the instrument creating the mortgage, pledge or hypothec,
the person has expressly empowered the person holding the mortgage, pledge or hypothec to vote in respect of such shares, in which case,
subject to the articles, such holder or such holder’s proxy is the person entitled to vote in respect of the shares and the chair of the
meeting may establish or adopt rules or procedures in relation to the recognition of the person holding the mortgage, pledge or hypothec
as the person entitled to vote in respect of the applicable shares.
Where two or more persons hold shares jointly,
one of those holders present at a meeting of shareholders may in the absence of the others vote the shares, but if two or more of those
persons are present on their own behalf or by proxy, vote, they shall vote as one on the shares jointly held by them and the chair of
the meeting may establish or adopt rules or procedures in that regard.
Every shareholder, including a shareholder that
is a body corporate or a trust, association or other unincorporated organization, entitled to vote at a meeting of shareholders may by
means of a proxy appoint a proxyholder or one or more alternate proxyholders, who are not required to be shareholders, to attend and act
at the meeting in the manner and to the extent authorized by the proxy and with the authority conferred by the proxy.
An instrument appointing a proxyholder shall be
in written or printed form or a format generated by telephonic or electronic means and shall be completed and executed, in writing or
electronic signature, by the shareholder or by his or her duly authorized attorney and shall conform with the requirements of the Act
and is valid only at the meeting in respect of which it is given or any adjournment of that meeting. So long as the Corporation remains
an “offering corporation” (as defined in the Act), a proxy appointing a proxyholder to attend and act at a meeting or
meetings of shareholders ceases to be valid one year from its date.
The directors may, by resolution, fix a time and
specify in a notice calling a meeting of shareholders the time not exceeding 48 hours, excluding Saturdays and holidays, preceding the
meeting of shareholders or an adjournment of the meeting of shareholders before which time proxies to be used at that meeting must be
deposited with the Corporation or its agent.
The chair shall conduct the proceedings at the
meeting and the chair’s decision in any matter or thing, including, without limitation, any question regarding the validity or invalidity
of any instruments of proxy and any question as to the admission or rejection of a vote, shall be conclusive and binding upon the shareholders.
Subject to the Act or the articles, the chair
of the meeting may, with the consent of the meeting and subject to such conditions as the meeting decides, adjourn the meeting of shareholders
from time to time and from place to place. If the meeting of shareholders is adjourned by one or more adjournments for an aggregate of
less than 30 days, it is not necessary to give notice of the adjourned meeting other than by announcement at the earliest meeting that
is adjourned. If the meeting of shareholders is adjourned by one or more adjournments for an aggregate of 30 days or more, notice of the
adjourned meeting shall be given as for an original meeting but, unless the meeting is adjourned by one or more adjournments for an aggregate
of more than 90 days, section 111 of the Act does not apply.
Any adjourned meeting shall be duly constituted
if held in accordance with the terms of the adjournment and a quorum is present thereat. The persons who formed a quorum at the original
meeting are not required to form the quorum at the adjourned meeting. If there is no quorum present at the adjourned meeting, the original
meeting shall be deemed to have terminated forthwith after its adjournment. Any business may be brought before or dealt with at any adjourned
meeting that might have been brought before or dealt with at the original meeting in accordance with the notice calling the same.
At all meetings of shareholders, except where
otherwise provided by statute or by the articles, or by these By-laws, the presence, in person, or by proxy duly authorized, of the holders
of thirty three and one third percent (33 1/3 percent) in voting power of the outstanding shares entitled to vote shall constitute a quorum
for the transaction of business. If a quorum is present at the opening of a meeting of shareholders, the shareholders present may proceed
with the business of the meeting until adjournment, notwithstanding that a quorum is not present throughout the meeting. If a quorum is
not present at the time appointed for a meeting of shareholders, or within such reasonable time thereafter as the shareholders present
may determine, the shareholders present may adjourn the meeting to a fixed time and place but may not transact any other business. Where
a separate vote by a class or classes or series is required, except where otherwise provided by the statute or by the articles or these
By-laws, thirty three and one third percent (33 1/3 percent) in voting power of the outstanding shares of such class or classes or series,
present in person, or represented by proxy duly authorized, shall constitute a quorum entitled to take action with respect to that vote
on that matter. Except where otherwise provided by statute or by the articles or these By-laws, the affirmative vote of the majority (plurality,
in the case of the election of directors) of shares of such class or classes or series present in person, or represented by proxy at the
meeting shall be the act of such class or classes or series.
13.15 | Persons Entitled to be Present |
The only persons entitled to be present at a meeting
of shareholders shall be those entitled to vote thereat, the directors and auditor of the Corporation and others who, although not entitled
to vote, are entitled or required under any provision of the Act or the articles or the by-laws to be present at the meeting. Any other
person may be admitted only on the invitation of the chair of the meeting or with the consent of the meeting.
13.16 | Resolution in Lieu of Meeting |
A resolution in writing signed by all the shareholders
or their attorney authorized in writing entitled to vote on that resolution at a meeting of shareholders is as valid as if it had been
passed at a meeting of the shareholders, except where a written statement is submitted by a director under subsection 123(2) of the Act,
or where representations in writing are submitted by an auditor under subsection 149(6) of the Act.
13.17 | Advance Notice of Shareholder Nominations and Proposals |
| (a) | Nomination Requirements. Subject to the Act, Applicable Securities Laws and the articles of the
Corporation, only those individuals named in the Director Nominations will be eligible for the election of directors to the board. |
| (b) | Timely Notice. A shareholder (the “Nominating Shareholder”) must give written
notice of its Director Nominations, the contents of such notice are set out in Section 13.17(d) (such notice, a “Nomination Notice”),
to the secretary of the Corporation even if such matter is already the subject of a notice to the shareholders or a Public Announcement.
The Nomination Notice must be received by the Corporation: |
| (i) | in the case of an annual meeting (or an annual and special meeting), not less than 30 days nor more than
65 days before the date of such meeting (except that, if the meeting is to be held on a date that is less than 50 days after the Meeting
Notice Date, notice by the Nominating Shareholder shall be made not less than the Close of Business on the 10th day after the Meeting
Notice Date); and |
| (ii) | in the case of a special meeting (which is not an annual and special meeting) called for the purpose of
electing directors (whether or not also called for the purpose of conducting other business) not later than the Close of Business on the
15th day after the Meeting Notice Date. |
| (c) | Delivery of Notice. Notwithstanding any other provision of this by-law, a Nominating Shareholder
shall deliver the Nomination Notice to the Corporation’s registered office. A Nomination Notice shall be delivered by personal delivery,
nationally recognized overnight courier (with all fees prepaid), facsimile or e-mail of a PDF document (with confirmation of transmission)
or certified or registered mail (in each case, return receipt requested, postage prepaid). |
| (d) | Shareholder Nominations. A Nomination Notice must include the following information respecting
each of the Nominating Shareholder’s nominees: |
| (i) | each nominee’s name, age, business address and residential address; |
| (ii) | a statement indicating whether each nominee is a “resident Canadian” (as defined in the
Act) and the regulations made under the Act; |
| (iii) | each nominee’s present principal occupation, business or employment; |
| (iv) | each nominee’s principal occupation, business or employment for the five years preceding the notice; |
| (v) | the number of securities of each class or series of shares of the Corporation (or any of its subsidiaries)
beneficially owned, or controlled or directed, directly or indirectly, by each nominee, as of the record date for the meeting (provided
that such date shall have then have been made publicly available and shall have occurred) and as of the date of such Nomination Notice; |
| (vi) | a description of any relationship, agreement, arrangement or understanding (including financial, compensation
or indemnity related or otherwise) between the proposed nominee and the Nominating Shareholder, or any affiliates or associates of, or
any person or entity acting jointly or in concert with, the proposed nominee or the Nominating Shareholder, in connection with the proposed
nominee’s nomination and election as a director; |
| (vii) | such other information concerning each nominee as would be required to be disclosed in an information
circular soliciting proxies for the election of each nominee as a director in an election contest (even if an election contest is not
involved) or that is otherwise required to be disclosed, under the regulations under the Act, NI 51-102 or Form 51-102F5 Information
Circular; |
| (viii) | the consent of each nominee to being named in the information circular to serve as a director if elected;
and |
| (ix) | any such other information as the Corporation may reasonably require to determine the eligibility of each
nominee to serve as an independent director of the Corporation or that could be material to a reasonable shareholder’s understanding of
the independence, or lack thereof, of each nominee. |
| (e) | Additional Nomination Notice Information. A Nomination Notice must include the following information
respecting the Nominating Shareholder: |
| (i) | the name, business address and residential address of the Nominating Shareholder; |
| (ii) | the number of securities of each class and series of the Corporation (or any of its subsidiaries) beneficially
owned, or controlled or directed, directly or indirectly, by the Nominating Shareholder or any other person with whom such Nominating
Shareholder is acting jointly or in concert with respect to the Corporation or any of its securities, as of the record date for the meeting
(provided that such date shall have been made publicly available and shall have occurred) and as of the date of the Nomination Notice; |
| (iii) | a description of any agreement, arrangement or understanding with respect to between or among the Nominating
Shareholder and any of its affiliates or associates, and any others (including their names) acting in concert with any of the foregoing
relating to the Nominating Shareholder’s Director Nominations; |
| (iv) | full particulars of any direct or indirect interest of the Nominating Shareholder in any contract or transaction
(existing or proposed) with the Corporation or any affiliate thereof; |
| (v) | a description of any agreement, arrangement or understanding (including any derivative or short positions,
options, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of the Nomination Notice by, or
on behalf of, the Nominating Shareholder or any of its affiliates or associates, the effect or intent of which is to mitigate loss to,
manage risk or benefit of share price changes for, or increase or decrease the voting power of the Nominating Shareholder or any of its
affiliates or associates with respect to shares of the Corporation; |
| (vi) | any other information relating to the Nominating Shareholder that would be required to be made in a dissident’s
information circular in connection with solicitations of proxies for election of directors under the Act or any Applicable Securities
Laws; |
| (vii) | a representation that the Nominating Shareholder is a registered or beneficial shareholder of the Corporation
entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to nominate the individual or individuals specified
in the Nomination Notice; and |
| (viii) | a representation whether the Nominating Shareholder intends to deliver an information circular or form
of proxy to holders of the Corporation’s outstanding shares or otherwise to solicit proxies from shareholders in support of its Director
Nominations. |
| (f) | Effect of Non-Compliance. Notwithstanding anything in this by-law to the contrary: (i) no Director
Nominations shall be made at any meeting except in accordance with the procedures set forth in this Section 13.17. The requirements of
this Section 13.17 shall apply to any Director Nominations to be brought before a meeting by a shareholder whether such Director Nominations
are to be included in the Corporation’s management information circular under the Act and NI 51-102 or presented to shareholders by means
of an independently financed proxy solicitation. The requirements of this Section 13.17 are included to provide the Corporation notice
of a shareholder’s intention to bring one or more Director Nominations before a meeting and shall in no event be construed as imposing
upon any shareholder the requirement to seek approval from the Corporation as a condition precedent to make such Director Nominations
before a meeting. |
| (g) | Waiver. The board may, in its sole discretion, waive any requirement in this Section 13.17. |
Section
14
SHARES AND TRANSFERS
Subject to the articles and to section 26 of the
Act, shares in the Corporation may be issued at the times and to the persons and for the consideration that the directors determine; provided
that a share shall not be issued until the consideration for the share is fully paid in money or in property or past service that is not
less in value than the fair equivalent of the money that the Corporation would have received if the share had been issued for money.
14.2 | Security Certificates |
Security certificates (if any) shall (subject
to compliance with section 56 of the Act) be in such form as the directors may from time to time by resolution approve and such certificates
shall be signed manually, or the signature shall be printed or otherwise mechanically reproduced on the certificate, by at least one director
or officer of the Corporation or by a registrar, transfer agent or branch transfer agent of the Corporation or an individual on their
behalf, or by a trustee who certifies it in accordance with a trust indenture, and any additional signatures required on a security certificate
may be printed or otherwise mechanically reproduced thereon. If a security certificate contains a printed or mechanically reproduced signature
of a person, the Corporation may issue the security certificate, notwithstanding that the person has ceased to be a director or an officer
of the Corporation, and the security certificate is as valid as if he or she were a director or an officer at the date of its issue.
For each class of securities and warrants issued
by the Corporation, the directors may from time to time by resolution appoint or remove,
| (a) | a trustee, transfer agent or other agent to keep the securities register and the register of transfer
and one or more persons or agents to keep branch registers; and |
| (b) | a registrar, trustee or agent to maintain a record of issued certificates and warrants, |
and, subject to section 48 of the Act, one person
may be appointed for the purposes of both clauses (a) and (b) in respect of all securities and warrants of the Corporation or any class
or classes thereof.
14.4 | Dealings with Registered Holder |
Subject to the Act, the STA and this by-law, the
Corporation may treat the registered holder of a security as the person exclusively entitled to vote, to receive notices, to receive any
interest, dividend or other payments in respect of the security, and otherwise to exercise all the rights and powers of a holder of the
security.
14.5 | Defaced, Destroyed, Stolen or Lost Security Certificates |
In the event of the defacement, destruction, theft
or loss of a security certificate, the fact of such defacement, destruction, theft or loss shall be reported by the owner to the Corporation
or to an agent of the Corporation (if any), on behalf of the Corporation, with a statement verified by oath or statutory declaration as
to the defacement, destruction, theft or loss and the circumstances concerning the same and with a request for the issuance of a new security
certificate to replace the one so defaced (together with the surrender of the defaced security certificate), destroyed, stolen or lost.
Upon the giving to the Corporation (or if there be an agent, hereinafter in this Section 14.5 referred to as the “Corporation’s
agent”, then to the Corporation and the Corporation’s agent) of an indemnity bond (or other security approved by the directors)
in such form as is approved by the directors or by any officer of the Corporation, indemnifying the Corporation (and the Corporation’s
agent if any) against all loss, damage or expense, which the Corporation and/or the Corporation’s agent may suffer or be liable for by
reason of the issuance of a new security certificate to such owner, and subject to the STA, a new security certificate shall be issued
in replacement of the one defaced, destroyed, stolen or lost, and such issuance may be ordered and authorized by any officer of the Corporation
or by the directors.
14.6 | Enforcement of Lien for Indebtedness |
Subject to subsection 40(2) of the Act and section
66 of the STA, if the articles of the Corporation provide that the Corporation has a lien on the shares registered in the name of a shareholder
or the shareholder’s legal representative for a debt of that shareholder to the Corporation, such lien may be enforced by the sale of
the shares thereby affected or by any other action, suit, remedy or proceeding authorized or permitted by law or by equity and, pending
such enforcement, the Corporation may refuse to register a transfer of the whole or any part of such shares. No sale shall be made until
such time as the debt ought to be paid and until a demand and notice in writing stating the amount due and demanding payment and giving
notice of intention to sell on default shall have been served on the holder or such shareholder’s legal representative of the shares subject
to the lien and default shall have been made in payment of such debt for seven days after service of such notice. Upon any such sale,
the proceeds shall be applied, firstly, in payment of all costs of such sale, and, secondly, in satisfaction of such debt and the residue
(if any) shall be paid to the shareholder or as such shareholder shall direct. Upon any such sale, the directors may enter or cause to
be entered the purchaser’s name in the securities register of the Corporation as holder of the shares, and the purchaser shall not be
bound to see to the regularity or validity of, or be affected by, any irregularity or invalidity in the proceedings, or be bound to see
to the application of the purchase money, and after the purchaser’s name or the name of the purchaser’s legal representative has been
entered in the securities register, the validity of the sale shall not be impeached by any person.
14.7 | Electronic, Book-Based or Other Non-Certificated Registered Positions |
For greater certainty, but subject to section
54 of the Act and the STA, a registered securityholder may have his or her holdings of securities of the Corporation evidenced by an electronic,
book-based, direct registration service or other non-certificated entry or position on the register of securityholders to be kept by the
Corporation in place of a physical security certificate pursuant to a registration system that may be adopted by the Corporation, in conjunction
with its transfer agent (if any). This by-law shall be read such that a registered holder of securities of the Corporation pursuant to
any such electronic, book-based, direct registration service or other non-certificated entry or position shall be entitled to all of the
same benefits, rights, entitlements and shall incur the same duties and obligations as a registered holder of securities evidenced by
a physical security certificate. The Corporation and its transfer agent (if any) may adopt such policies and procedures and require such
documents and evidence as they may determine necessary or desirable in order to facilitate the adoption and maintenance of a security
registration system by electronic, book- based, direct registration system or other non-certificated means.
Section
15
DIVIDENDS
Subject to the articles, the directors may from
time to time by resolution declare and the Corporation may pay dividends on its issued shares.
The directors shall not declare and the Corporation
shall not pay a dividend if there are reasonable grounds for believing that:
| (a) | the Corporation is, or would after the payment be, unable to pay its liabilities as they become due; or |
| (b) | the realizable value of the Corporation’s assets would thereby be less than the aggregate of its liabilities
and its stated capital of all classes. |
The Corporation may pay a dividend by issuing
fully paid shares of the Corporation and, subject to section 38 of the Act, the Corporation may pay a dividend in money or property.
In case several persons are registered as the
joint holders of any securities of the Corporation, any one of such persons may give effectual receipts for all dividends and payments
on account of dividends, principal, interest and/or redemption payments in respect of such securities.
A dividend payable in money shall be paid by cheque
to the order of each registered holder of shares of the class or series in respect of which it has been declared and mailed by prepaid
ordinary mail to such registered holder at the recorded address of such registered holder, or, paid by electronic funds transfer to the
bank account designated by the registered holder, unless such holder otherwise directs. In the case of joint holders, the cheque or payment
shall, unless such joint holders otherwise direct, be made payable to the order of all such joint holders and, if more than one address
is recorded in the Corporation’s security register in respect of such joint holding, the cheque shall be mailed to the first address so
appearing. The mailing of such cheque as aforesaid, unless the same is not paid on due presentation, or the electronic funds transfer
as aforesaid, shall satisfy and discharge the liability for the dividend to the extent of the sum represented thereby plus the amount
of any tax which the Corporation is required to and does withhold. In the event of non-receipt of any dividend cheque or payment by the
person to whom it is sent as aforesaid, the Corporation shall issue to such person a replacement cheque or payment for a like amount on
such terms as to indemnity, reimbursement of expenses and evidence of non-receipt and of title as any officer or the directors may from
time to time prescribe, whether generally or in any particular case.
Section
16
VOTING SECURITIES IN OTHER BODIES CORPORATE
All securities of or other interests in (i) any
other body corporate or (ii) any trust, association or other unincorporated organization carrying voting rights and held from time to
time by the Corporation may be voted at all meetings of shareholders, unitholders, bondholders, debenture holders or holders of such securities
or other interests, as the case may be, of such other (i) body corporate or (ii) trust, association or other unincorporated organization,
and in such manner and by such person or persons as the directors of the Corporation shall from time to time determine and authorize by
resolution. Any officer of the Corporation may also from time to time execute and deliver for and on behalf of the Corporation proxies
and arrange for the issuance of voting certificates or other evidence of the right to vote in such names as such officer may determine,
without the necessity of a resolution or other action by the directors.
Section
17
NOTICES, ETC.
Any notice or document required by the Act, the
articles, the by-laws or otherwise to be sent to any shareholder or director of the Corporation may be delivered personally to, or sent
by pre-paid mail addressed to:
| (a) | the shareholder at the shareholder’s latest address as shown in the records of the Corporation or its
transfer agent; and |
| (b) | the director at the director’s latest address as shown in the records of the Corporation or in the most
recent notice filed under the Corporations Information Act, whichever is the more current. |
A notice or document sent by mail to a shareholder
or director of the Corporation is deemed to be received by the addressee on the fifth day after mailing.
Notwithstanding the foregoing, a notice or document
required or permitted to be sent under sections 262 and 263 of the Act may be sent by electronic means in accordance with the Electronic
Commerce Act, 2000.
17.2 | Failure to Locate Shareholder |
If the Corporation sends a notice or document
to a shareholder and the notice or document is returned on three consecutive occasions because the shareholder cannot be found, the Corporation
is not required to send any further notices or documents to the shareholder until the shareholder informs the Corporation in writing of
the shareholder’s new address.
17.3 | Shares Registered in More than one Name |
All notices or documents shall, with respect to
any shares in the capital of the Corporation registered in more than one name, be sent to whichever of such persons is named first in
the records of the Corporation and any notice or document so sent shall be sufficient notice of delivery of such document to all the holders
of such shares.
17.4 | Persons Becoming Entitled by Operation of Law |
Every person who by operation of law, transfer
or by any other means whatsoever shall become entitled to any shares in the capital of the Corporation shall be bound by every notice
or document in respect of such shares which prior to his or her name and address being entered on the records of the Corporation in respect
of such shares shall have been duly sent to the person or persons from whom such person derives his or her title to such shares.
17.5 | Signatures upon Notices |
The signature of any director or officer of the
Corporation upon any notice need not be a manual signature.
Where a given number of days’ notice or notice
extending over any period is required to be given under any provisions of the articles or by-laws of the Corporation, the day the notice
is sent shall, unless it is otherwise provided by applicable law, be counted in such number of days or other period.
A certificate of any officer of the Corporation
in office at the time of the making of the certificate or of an agent of the Corporation as to facts in relation to the mailing or delivery
or sending of any notice or document to any shareholder, director, officer or auditor of the Corporation or any other person or publication
of any notice or document shall be conclusive evidence thereof and shall be binding on every shareholder, director, officer or auditor
of the Corporation or other person, as the case may be.
Section
18
CUSTODY OF SECURITIES
All securities (including warrants) owned by the
Corporation may be lodged (in the name of the Corporation) with a chartered bank or a trust company or in a safety deposit box or with
such other depositaries or in such other manner as may be determined from time to time by any officer or director.
All securities (including warrants) belonging
to the Corporation may be issued and held in the name of a nominee or nominees of the Corporation (and if issued or held in the names
of more than one nominee shall be held in the names of the nominees jointly with right of survivorship) and shall be endorsed in blank
with endorsement guaranteed in order to enable transfer thereof to be completed and registration thereof to be effected.
Section
19
EXECUTION OF CONTRACTS, ETC.
Contracts, documents or instruments requiring
the signature of the Corporation may be signed by any director or officer alone or any person or persons authorized by resolution of the
directors and all contracts, documents or instruments so signed shall be binding upon the Corporation without any further authorization
or formality. The directors are authorized from time to time by resolution to appoint any officer or officers or any other person or persons
on behalf of the Corporation either to sign contracts, documents or instruments generally or to sign specific contracts, documents or
instruments.
The corporate seal (if any) of the Corporation
may be affixed by any director or officer to contracts, documents or instruments signed by such director or officer as aforesaid or by
an officer or officers, person or persons appointed as aforesaid by resolution of the directors.
The term “contracts, documents or instruments”
as used in this by-law shall include notices, deeds, mortgages, hypothecs, charges, cheques, drafts, orders for the payment of money,
notes, acceptances, bills of exchange, conveyances, transfers and assignments of property, real or personal, immovable or movable, agreements,
releases, receipts and discharges for the payment of money or other obligations, conveyances, transfers and assignments of securities
and all paper writings.
The signature or signatures of any director or
officer or any other person or persons appointed as aforesaid by resolution of the directors may be printed, engraved, lithographed or
otherwise mechanically or electronically reproduced upon all contracts, documents or instruments executed or issued by or on behalf of
the Corporation and all contracts, documents or instruments on which the signature or signatures of any of the foregoing persons shall
be so reproduced, shall be as valid to all intents and purposes as if they had been signed manually and notwithstanding that the persons
whose signature or signatures is or are so reproduced may have ceased to hold office at the date of the delivery or issue of such contracts,
documents or instruments. The delivery of an executed copy of any and all by-laws, minutes of meetings, resolutions, consents, instruments
or like documents required by the Act to be kept with the records of the Corporation in counterparts, by facsimile or by electronic transmission
shall be deemed to be the equivalent of the delivery of an original executed copy thereof and the counterparts together shall constitute
one and the same document.
Section
20
FISCAL PERIOD
The fiscal period of the Corporation shall terminate
on such day in each year as the board may from time to time by resolution determine.
Section
21
REPEAL OF PREVIOUS BY-LAWS
The Corporation’s former By-Law No. 1 (the “Former
By-Law No. 1”) is repealed as of the coming into force of this new By-Law No. 1 (the “New By-Law No. 1”). The
repeal shall not affect the previous operation of the Former By- Law so repealed or affect the validity of any act done or right, privilege,
obligation or liability acquired or incurred under, or the validity of any contract or agreement made pursuant to, the repealed Former
By-Law before its repeal.
This By-Law No. 1 was made
by the directors of the Corporation on [●], 2023 and confirmed by the shareholders of the Corporation on [●], 2023.
Oxus Acquisition (NASDAQ:OXUSU)
過去 株価チャート
から 4 2024 まで 5 2024
Oxus Acquisition (NASDAQ:OXUSU)
過去 株価チャート
から 5 2023 まで 5 2024