AMENDED AND RESTATED SUPPORT AGREEMENT
THIS AGREEMENT made as of the 10th day of April,
2020.
BETWEEN:
INDUS HOLDINGS,
INC., a company organized under the laws of the Province of
British Columbia, Canada (formerly Mezzotin Minerals Inc., a
company organized under the laws of the Province of Ontario,
Canada) (“Pubco”)
and
INDUS HOLDING COMPANY, a corporation
incorporated under the laws of the State of Delaware
(“Indus
US”)
RECITALS:
A.
Indus US is a
subsidiary of Pubco.
B.
On November 12,
2018 Pubco and Indus US entered into a letter agreement and on
March 29, 2019, Pubco, Indus US, 2670995 Ontario Inc.
(“Finco”) and
2670764 Ontario Inc. (“Amalgamation Sub”) entered into a
business combination agreement (the “Business Combination Agreement”).
In connection with the transactions contemplated by the Business
Combination Agreement: (i) Pubco caused the formation of Finco, a
corporation existing under the laws of Ontario, Canada; (ii) Finco
completed a financing pursuant to the issuance of Finco
subscription receipts (the “Finco Subscription Receipts”) in
exchange for proceeds of CDN$53,769,675.30; and (iii) the
outstanding Finco Subscription Receipts were converted pursuant to
their terms into common shares of Finco (the “Finco Subscription Receipt
Conversion”).
C.
Subsequent to the
Finco Subscription Receipt Conversion, the parties effected the
three-cornered amalgamation of Pubco, Finco, and Amalgamation Sub,
a corporation organized under the laws of Ontario, Canada and
wholly-owned by Pubco (such amalgamation, the “Amalgamation”) with the resulting
entity (“Amalco”) constituting a
continuation of Finco and Amalgamation Sub pursuant to applicable
Ontario corporate law and pursuant to which the holders of Finco
shares received “subordinate voting shares” of Pubco
(the “Pubco
Shares”).
D.
Subsequent to the
Amalgamation, Amalco was dissolved and liquidated, pursuant to
which all of the assets of Amalco (which consisted of the net
proceeds from the sale of the Finco Subscription Receipts (the
“Net Proceeds”)
became the property of Pubco. Pubco subscribed for non-redeemable
Class A Common Shares of Indus US (the “Class A Shares”) for an aggregate
purchase price equal to the Net Proceeds.
E.
Substantially
simultaneously with the Amalgamation, the shareholders of Indus US
adopted the seventh amended and restated limited certificate of
incorporation of Indus US, pursuant to which the outstanding shares
of Indus US were reclassified as Class B Common Shares of Indus
US.
F.
As of the date
hereof, (i) the shareholders of Indus US have adopted the eighth
amended and restated limited certificate of incorporation of Indus
US (the “Eighth A&R
Charter”), pursuant to which Indus US has authorized
the issuance of its Class C Common Shares, and (ii) Indus US is
conducting the initial closing of an offering of convertible
debentures (the “Debentures”) and warrants (the
“Warrants”). The
Debentures are convertible into Class C Common Shares and the
Warrants are exercisable for Pubco Shares.
G.
The Class B Common
Shares and the Class C Common Shares have certain redemption rights
as provided in, and subject to the limitations of, the Eighth
A&R Charter and may be exchanged for Pubco Shares under the
circumstances provided therein.
NOW THEREFORE, the parties agree as follows:
ARTICLE 1
DEFINITIONS AND
INTERPRETATION
“Agreement” means this Support
Agreement, including all recitals and schedules, as it may be
amended, supplemented and/or restated in accordance with its terms.
Each term denoted herein by initial capital letters and not
otherwise defined in this Agreement has the respective meaning
given to it in the Eighth A&R Charter, unless the context
requires otherwise.
1.2
Interpretation
Not Affected by Headings
The division
of this Agreement into Articles, Sections, subsections and
paragraphs and the insertion of headings are for convenience of
reference only and shall not affect in any way the meaning or
interpretation of this Agreement. Unless the contrary intention
appears, references in this Agreement to an Article, Section,
subsection, paragraph or Schedule by number or letter or both refer
to the Article, Section, subsection, paragraph or Schedule,
respectively, bearing that designation in this
Agreement.
Where
the word “including” or “includes” is used
in this Agreement, it means “including (or includes) without
limitation”.
1.4
No
Strict Construction
The
language used in this Agreement is the language chosen by the
parties to express their mutual intent, and no rule of strict
construction shall be applied against any party.
In this
Agreement, unless the contrary intention appears, words importing
the singular include the plural and vice versa, and words importing
gender include all genders.
A
reference to a statute includes all registrations and rules made
pursuant to such statute and, unless otherwise specified, the
provisions of any statute, regulation or rule which amends,
supplements or supersedes any such statute, regulation or
rule.
If the date
on which any action is required to be taken hereunder by any person
is not a Business Day, such action shall be required to be taken on
the next succeeding day which is a Business Day.
Unless
otherwise stated, all accounting terms used in this Agreement shall
have the meanings attributable thereto under IFRS and all
determinations of an accounting nature required to be made shall be
made in accordance with IFRS consistently applied.
ARTICLE 2
COVENANTS OF PUBCO
AND INDUS US
2.1
Covenants
Regarding Indus US Shares Exchangeable or Redeemable for Pubco
Shares
So long
as any shares of stock of Indus US not owned by Pubco or its
affiliates which are redeemable for Pubco Shares
(“Redeemable Corporation
Shares” and together with the Class A Shares, the
“Indus US
Shares”) are outstanding or any Redeemable Corporation
Shares are issuable pursuant to the exercise, conversion or
exchange of any outstanding securities of Indus US, Pubco
will:
(a)
take all such
actions and do all such things as are reasonably necessary or
desirable to enable and permit Indus US, in accordance with
applicable law, to pay and otherwise perform its obligations with
respect to the satisfaction of a redemption of Redeemable
Corporation Shares by a holder thereof (a “Redeemable Share Shareholder”) in
respect of each issued and outstanding Redeemable Corporation Share
upon a redemption of such Redeemable Corporation Shares by Indus US
and, without limiting the generality of the foregoing, take all
such actions and do all such things as are necessary or desirable
to enable and permit Indus US to cause to be delivered Pubco Shares
and/or amounts in cash, as applicable, to the holders of Redeemable
Corporation Shares in accordance with the Eighth A&R Charter,
together with an amount in cash sufficient to pay any amount to be
paid in respect of unpaid distributions with respect to such
Redeemable Corporation Shares (if any); and
(b)
in the event any
Pubco Shares are issued (whether upon a redemption of Redeemable
Corporation Shares by Indus US, upon an exchange of Redeemable
Corporation Shares for Pubco Shares, in accordance with the terms
of Pubco securities that are exercisable or exchangeable for or
convertible into Pubco Shares, upon a primary issuance of Pubco
Shares or otherwise), subscribe for a number of Class A Shares
equal to the number of Pubco Shares so issued (with the
consideration therefor payable by Pubco (i) in connection with a
redemption of Redeemable Corporation Shares by Indus US, in (A)
Pubco Shares delivered to the holder of such Redeemable Corporation
Shares or, in the case of the Class B Common Shares, (B) cash in
amount equal to the Redeemed Shares Equivalent (as defined in the
Eighth A&R Charter), if Indus US elects to pay the redemption
price for such Redeemable Corporation Shares in cash and (ii) in
connection with a primary issuance of Pubco Shares, in cash to
Indus US.
2.2
Reservation
of Pubco Shares
Pubco
hereby represents, warrants and covenants in favour of Indus US
that Pubco will, at all times while any Redeemable Corporation
Shares (or other rights pursuant to which Redeemable Corporation
Shares may be acquired upon the exercise, conversion or exchange
thereof) other than Redeemable Corporation Shares held by Indus US
or its affiliates are outstanding, authorize for issuance such
number of Pubco Shares (or other shares or securities into which
Pubco Shares may be reclassified or changed) without duplication:
(a) as is equal to the sum of (i) the number of Redeemable
Corporation Shares issued and outstanding from time to time; and
(ii) the number of Redeemable Corporation Shares issuable upon the
exercise, conversion or exchange of all rights to acquire
Redeemable Corporation Shares outstanding from time to time; and
(b) as are now and may hereafter be required to enable and permit
Pubco and Indus US to meet their respective obligations under the
Eighth A&R Charter. Nothing contained herein shall be construed
to preclude Pubco from satisfying its obligations in respect of (i)
any redemption contemplated in Section 2.1 herein by delivery of
purchased Pubco Shares (which may or may not be held in the
treasury of Pubco) or the delivery of cash pursuant to a redemption
or exchange of Redeemable Corporation Shares or (ii) any exchange
contemplated in Section 2.1 herein by delivery of purchased Pubco
Shares (which may or may not be held in the treasury of Pubco).
Pubco covenants that all Pubco Shares issued upon such a redemption
or exchange will, upon issuance, be validly issued, fully paid and
non-assessable.
2.3
Stock
Exchange Listing
Pubco
covenants and agrees in favour of Indus US that, as long as any
outstanding Redeemable Corporation Shares (or other rights pursuant
to which Redeemable Corporation Shares may be acquired) are owned
by any person other than Indus US or any of its affiliates, Pubco
will use its reasonable efforts to maintain a listing for
Pubco Shares on a stock exchange which is a designated stock
exchange within the meaning of the Income Tax Act (Canada) and to ensure
that Pubco is a “public corporation” within the meaning
of the Income Tax Act
(Canada).
2.4
Notification
by Pubco of Certain Events
In
order to assist Indus US in complying with its obligations
hereunder, Pubco will notify Indus US of each of the following
events at the time set forth below:
(a)
promptly, upon the
earlier of receipt by Pubco of notice of and Pubco otherwise
becoming aware of any threatened or instituted claim, suit,
petition or other proceedings; and
(b)
as soon as
practicable upon the split, consolidation, reclassification,
recapitalization or other change in the outstanding securities of
Pubco and the issuance by Pubco of any Pubco Shares or rights to
acquire Pubco Shares.
2.5
Notification
by Indus US of Certain Events
In
order to assist Pubco in complying with its obligations hereunder,
Indus US will notify Pubco of each of the following events at the
time set forth below:
(a)
promptly, upon the
earlier of receipt by Indus US of notice of and Indus US otherwise
becoming aware of any threatened or instituted claim, suit,
petition or other proceedings with respect to the involuntary
liquidation, dissolution or winding-up of Indus US or to effect any
other distribution of the assets of Indus US among its members for
the purpose of winding up its affairs;
(b)
immediately, upon
receipt by Indus US of a request by a Redeemable Share Shareholder
to redeem such shareholder’s Redeemable Corporation Shares,
as contemplated in the articles of incorporation of Indus US;
and
(c)
as soon as
practicable upon the split, consolidation, reclassification,
recapitalization or other change in the outstanding securities of
Indus US and the issuance by Indus US of any Redeemable Corporation
Shares or rights to acquire Redeemable Corporation
Shares.
2.6
Delivery
of Pubco Shares
In
furtherance of its obligations under Section 2.1(a), upon notice
from Indus US of any event that requires Indus US to cause to be
delivered Pubco Shares to any holder of Redeemable Corporation
Shares, Pubco shall forthwith deliver, or cause to be delivered
through its transfer agent or otherwise, as Indus US may direct,
the requisite number of Pubco Shares to be received by, or to the
order of, the former holder of the surrendered Redeemable
Corporation Shares as Indus US shall direct (and which Pubco Shares
shall, in the case of a redemption that is to be satisfied in whole
or in part in Pubco Shares in accordance with the Eighth A&R
Charter, be contributed to Indus US substantially simultaneously
with the payment of the redemption price to the former holder of
the surrendered Redeemable Corporation Shares), and shall if
necessary, and subject to obtaining all necessary shareholder
approvals (if any), issue new Pubco Shares for such purpose. All
such Pubco Shares shall be duly authorized and validly issued as
fully paid and non-assessable and shall be free and clear of any
lien, claim and encumbrance.
Pubco
will in good faith take all such reasonable actions and do all such
things as are reasonably necessary or desirable to cause all Pubco
Shares to be delivered hereunder to be listed, quoted or posted for
trading on the Canadian Securities Exchange and any other stock
exchanges and quotation systems on which outstanding Pubco Shares
have been listed by Pubco and remain listed, quoted or posted for
trading at such time (it being understood that any such Pubco
Shares may be subject to transfer restrictions under applicable
securities laws). Nothing in this Agreement shall require Pubco to
register any securities pursuant to the United States Securities Exchange Act of
1933, as amended, or the United States Securities Exchange Act of
1934, as amended, or to register or qualify any securities
for distribution under a prospectus pursuant to any applicable
Canadian securities laws or United States federal securities or
state “blue sky” laws.
2.8
Proceeds
from Public Issuance of Pubco Shares
Without
limitation of Section 2.1(b), the net proceeds, if any, received by
Pubco from the issuance of Pubco Shares may be contributed by Pubco
to Indus US in exchange for a number of Class A Shares equal to the
number of Pubco Shares issued by Pubco.
2.9
Reimbursement
of Expenses
The
parties hereto agree that certain actions taken by Pubco will inure
to the benefit of Indus US and the shareholders of Indus US.
Therefore, Indus US will reimburse Pubco for all reasonable
out-of-pocket expenses incurred on behalf of Indus US, including
all fees, expenses and costs of being a public company (including
expenses incurred in connection with public reporting obligations,
information circulars, shareholder meetings, stock exchange fees,
transfer agent fees, securities commission filing fees and offering
expenses, including investment banking, brokerage or finder’s
fees) and maintaining its corporate existence, except in each case
to the extent adequate net proceeds received by Pubco from the
issuance of Pubco Shares are retained for such
purpose.
So long
as any Redeemable Corporation Shares not owned by Pubco or its
affiliates are outstanding, in the event that a tender offer, share
exchange offer, issuer bid, take-over bid, arrangement, business
combination or similar transaction with respect to Pubco Shares (an
“Offer”) is
proposed by Pubco or is proposed to Pubco or its shareholders and
is recommended by the board of directors of Pubco, or is otherwise
effected or to be effected with the consent or approval of the
board of directors of Pubco, Pubco will use its reasonable efforts
in good faith to take all such actions and do all such things as
are necessary or desirable to enable and permit holders of
Redeemable Corporation Shares (other than Pubco and its affiliates)
to participate in such Offer to the same extent and on an
economically equivalent basis as the holders of Pubco Shares,
without discrimination. Without limiting the generality of the
foregoing, Pubco will use its reasonable efforts in good faith to
ensure that holders of Redeemable Corporation Shares may
participate in each such Offer without being required to
redeem Redeemable
Corporation Shares as against Indus US (or, if so required, to
ensure that any such redemption, shall be effective only upon, and
shall be conditional upon, the closing of such Offer and only to
the extent necessary to tender or deposit to the
Offer).
2.11
Ordinary
Market Purchases
For
greater certainty, nothing contained in this Agreement shall limit
the ability of Pubco (or any of its subsidiaries, including without
limitation, Indus US) to make ordinary market purchases of Pubco
Shares in accordance with applicable laws and regulatory and stock
exchange requirements.
ARTICLE 3
PUBCO
SUCCESSORS
3.1
Certain
Requirements in Respect of Combination, etc.
As long
as any outstanding Redeemable Corporation Shares are owned by any
person other than Pubco or any of its affiliates, Pubco shall not
consummate any transaction (whether by way of reconstruction,
recapitalization, reorganization, consolidation, arrangement,
merger, amalgamation, transfer, sale, lease or otherwise) whereby
all or substantially all of its property and assets would become
the property of any other person or of the continuing corporation
resulting therefrom unless:
(a)
such other person
or continuing corporation (the “Pubco Successor”) by operation of
law, becomes, without more, bound by the terms and provisions of
this Agreement or, if not so bound, executes, before or
contemporaneously with the consummation of such transaction, an
agreement supplemental hereto and such other instruments (if any)
as are reasonably necessary or advisable to evidence the assumption
by Pubco Successor of liability for all moneys payable and property
deliverable hereunder and the covenant of such Pubco Successor to
pay and deliver or cause to be paid and delivered the same and its
agreement to observe and perform all the covenants and obligations
of Pubco under this Agreement; and
(b)
such transaction
shall be upon such terms and conditions as to substantially
preserve and not to impair in any material respect any of the
rights, duties, powers and authorities of the other parties
hereunder or the holders of the Redeemable Corporation
Shares.
3.2
Vesting
of Powers in Successor
Whenever the
conditions of Section 3.1 have been duly observed and performed,
the parties, if required by Section 3.1, shall execute and deliver
the supplemental agreement provided for in Section 3.1(a) and
thereupon Pubco Successor shall possess and from time to time may
exercise each and every right and power of Pubco under this
Agreement in the name of Pubco or otherwise and any act or
proceeding by any provision of this Agreement required to be done
or performed by the board of directors of Pubco or any officers of
Pubco may and shall be done and performed with like force and
effect by the directors or officers of such Pubco
Successor.
3.3
Wholly-Owned
Subsidiaries
Nothing
herein shall be construed as preventing the amalgamation or merger
of any wholly-owned direct or indirect subsidiary of Pubco with or
into Pubco or the winding-up, liquidation or dissolution of any
wholly-owned direct or indirect subsidiary of Pubco or any other
distribution of the assets of any wholly-owned direct or indirect
subsidiary of Pubco among the shareholders or members of such
subsidiary for the purpose of winding up its affairs, and any such
transactions are expressly permitted by this Article
3.
ARTICLE 4
GENERAL
This
Agreement shall come into force and be effective as of the date
hereof and shall terminate and be of no further force and effect at
such time as no Redeemable Corporation Shares (or securities or
rights convertible into or exchangeable for or carrying rights to
acquire Redeemable Corporation Shares) are held by any person other
than Pubco and any of its affiliates.
4.2
Changes
in Capital of Pubco or Indus US
(a)
In the event of a
reclassification, consolidation, split, dividend of securities or
other recapitalization of Pubco Shares or Indus US Shares, Pubco
and/or Indus US, as applicable, shall undertake all actions
necessary and appropriate to maintain the same ratios between the
number Pubco Shares and the number Redeemable Corporation Shares
issued and outstanding immediately prior to any such
reclassification, consolidation, split, dividend of securities or
other recapitalization, including, without limitation, also
effecting a reclassification, consolidation, split, dividend of
securities or other recapitalization with respect to, as
applicable, the Pubco Shares and/or Redeemable Corporation
Shares.
(b)
At all times after
the occurrence of any event as a result of which Pubco Shares or
Redeemable Corporation Shares (or any combination of the foregoing)
are in any way changed, this Agreement shall forthwith be amended
and modified as necessary in order that it shall apply with full
force and effect, mutatis
mutandis, to all new securities into which Pubco Shares or
Redeemable Corporation Shares (or any combination of the foregoing)
are so changed and the parties hereto shall execute and deliver an
agreement in writing evidencing such necessary amendments and
modifications.
If any
term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule or law, or public policy,
all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby
are not affected in any manner materially adverse to any party.
Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in
an acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the fullest extent possible.
4.4
Amendments,
Modifications
Subject to
Sections 4.2, 4.3 and 4.5, this Agreement may not be amended or
modified except by an agreement in writing executed by Indus US and
Pubco and, if such amendment or modification would materially and
adversely affect the Redeemable Corporation Shares, approved by the
holders of a majority of the outstanding Redeemable Corporation
Shares.
4.5
Ministerial
Amendments
Notwithstanding the
provisions of Section 4.4, the parties to this Agreement may in
writing at any time and from time to time, without the approval of
the holders of the Redeemable Corporation Shares, amend or modify
this Agreement for the purposes of:
(a)
adding to the
covenants of any or all parties if the board of directors of Indus
US and the board of directors of Pubco shall be of the good faith
opinion that such additions will not be prejudicial to the rights
or interests of the holders of the Redeemable Corporation Shares as
a whole; or
(b)
making such changes
or corrections which, on the advice of counsel to Indus US and
Pubco, are required for the purpose of curing or correcting any
ambiguity or defect or inconsistent provision or clerical omission
or mistake or manifest error, provided that the board of directors
of Indus US and the board of directors of Pubco shall be of the
good faith opinion that such changes or corrections will not be
prejudicial to the interests of the holders of the Redeemable
Corporation Shares as a whole.
4.6
Meeting
to Consider Amendments
Indus
US, at the request of Pubco, shall submit to the holders of the
Indus US Shares a written consent or otherwise call a meeting of
the holders of Indus US Shares, for the purpose of considering any
proposed amendment or modification requiring approval under Section
4.4. Any such meeting or meetings shall be called and held in
accordance with the articles of incorporation of Indus US, and all
applicable laws.
It is
hereby acknowledged by the parties that references herein to
affiliates of Pubco or Indus US shall not include for the purpose
of such references holders of Super Voting Shares of
Pubco.
4.8
Enurement
& Assignment
This
Agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and permitted
assigns; provided that any
attempted assignment of the rights and obligations of this
Agreement by any party hereto to a third-party shall be null and
void ab initio unless the
requirements of Article III are satisfied in connection with such
assignment.
All
notices and other communications between the parties to this
Agreement shall be in writing and shall be deemed to have been
given if delivered personally or by electronic communication to the
parties at the following addresses (or at such other address for
any such party as shall be specified in like notice):
Attention:
Mark
Ainsworth
Email:
mark@indusholdingco.com
Any
notice or other communication given personally shall be deemed to
have been given and received upon delivery thereof and if given by
electronic communication shall be deemed to have been given and
received on the date of receipt thereof unless such day is not a
Business Day or the notice or other communication was sent after
5:00 p.m. (Pacific Time), in which case it shall be deemed to have
been given and received upon the immediately following Business
Day.
This
Agreement, may be executed in counterparts, each of which shall be
deemed an original, and all of which taken together shall
constitute one and the same instrument.
This
Agreement shall be construed and enforced in accordance with the
laws of the Province of British Columbia and the laws of Canada
applicable therein.
Each of
the parties hereto agrees that any action or proceeding arising out
of or relating to this Agreement may be instituted in the courts of
British Columbia, waives any objection which it may have now or
hereafter to the venue of any such action or proceeding,
irrevocably submits to the jurisdiction of the said courts in any
such action or proceeding, agrees to be bound by any judgment of
the said courts and not to seek, and hereby waives, any review of
the merits of any such judgment by the courts of any other
jurisdiction and Indus US hereby appoints Pubco at its registered
office in the Province of British Columbia as attorney for service
of process.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above
written.
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INDUS HOLDINGS, INC.
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By:
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/s/ Robert
Weakley
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Name:
Robert Weakley
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Title:
Chief Executive Officer
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INDUS HOLDING COMPANY
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By:
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/s/ Robert
Weakley
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Name:
Robert Weakley
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Title:
Chief Executive Officer
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Signature Page –Support Agreement