BUSINESS COMBINATION AGREEMENT

 

BETWEEN:

 

MEZZOTIN MINERALS INC.

- and -

INDUS HOLDING COMPANY

- and -

2670995 ONTARIO INC.

- and -

2670764 ONTARIO INC.

 

 

 

Dated March 29, 2019

 

 

TABLE OF CONTENTS

ARTICLE I GENERAL		2
1.1	Defined Terms	2
1.2	Pre-Business Combination – Name Change, Reclassification and Creation of Shares	2
1.3	Business Combination – Subscription of Super Voting Shares	2
1.4	Business Combination – Financing of Canadian Finco	2
1.5	Business Combination – Exchange of Subscription Receipts	3
1.6	Business Combination - Amalgamation	3
1.7	Business Combination – Wind up of Amalco	5
1.8	Business Combination – Subscription by Mezzotin	5
1.9	Business Combination – Contribution of Shares to Mezzotin by Indus Shareholders	5
1.10	Business Combination – Continuance	5
1.11	Business Combination – Completion of Transactions	6
1.12	U.S. Tax Matters	6
1.13	Board of Directors and Officers	6
ARTICLE II REPRESENTATIONS AND WARRANTIES OF INDUS AND cANADIAN FINCO		7
2.1	Organization and Good Standing	7
2.2	Consents, Authorizations, and Binding Effect	7
2.3	Litigation and Compliance	8
2.4	Financial Statements	9
2.5	Contracts	9
2.6	Capitalization	9
2.7	US Tax Status As A Non-USRPHCo.	10
2.8	No Other Representations	10
ARTICLE III REPRESENTATIONS AND WARRANTIES OF MEZZOTIN and Mezzotin subco		10
3.1	Organization and Good Standing	11
3.2	Consents, Authorizations, and Binding Effect	11
3.3	Litigation and Compliance	12
3.4	Public Filings; Financial Statements	13
3.5	Taxes	14
3.6	Pension and Other Employee Plans and Agreement	15
3.7	Labour Relations	15
3.8	Contracts, Etc	15
3.9	Absence of Certain Changes, Etc.	15
3.10	Subsidiaries	16
3.11	Capitalization	16
3.12	Environmental Matters	17
3.13	Licence and Title	17
3.14	Indebtedness	18
3.15	Undisclosed Liabilities	18
3.16	Brokers	18
3.17	Anti-Bribery Laws	18
3.18	No Other Representations	19
ARTICLE IV COVENANTS		19
4.1	Covenants of Indus	19
4.2	Covenants of Mezzotin	20

 

 

4.3	Covenants of Canadian Finco	22
4.4	Covenants of Mezzotin Subco	22
ARTICLE V CONDITIONS TO OBLIGATIONS OF MEZZOTIN		23
5.1	Conditions Precedent to Completion of the Business Combination	23
ARTICLE VI CONDITIONS TO OBLIGATIONS OF Indus AND CANADIAN FINCO		24
6.1	Conditions Precedent to Completion of the Business Combination	24
ARTICLE VII MUTUAL CONDITIONS PRECEDENT		26
7.1	Mutual Conditions Precedent	26
ARTICLE VIII CLOSING		27
8.1	Closing	27
8.2	Termination of this Agreement	27
8.3	Dissenting Shareholders	28
8.4	Survival of Representations and Warranties; Limitation	28
8.5	Good Faith	28
ARTICLE IX standstill		28
9.1	Indus Standstill	28
9.2	Mezzotin Standstill	29
ARTICLE X MISCELLANEOUS		29
10.1	Further Actions	29
10.2	Entire Agreement	29
10.3	Descriptive Headings	29
10.4	Notices	30
10.5	Costs and Expenses	31
10.6	Governing Law	31
10.7	Enurement and Assignability	31
10.8	Confidentiality	31
10.9	Remedies	31
10.10	Waivers and Amendments	32
10.11	Illegalities	32
10.12	Currency	32
10.13	Third-Party Beneficiaries	32
10.14	Counterparts	32
SCHEDULE A DEFINITIONS		A-1
SCHEDULE B		B-1
SCHEDULE C SUBORDINATE VOTING SHARE TERMS		C-1
SCHEDULE D CONVERTIBLE SHARE AND INDUS VOTING COMMON SHARE TERMS		D-1
SCHEDULE E SUPER VOTING SHARE TERMS		E-1

 

 

BUSINESS COMBINATION AGREEMENT

THIS AGREEMENT dated March 29, 2019 is made

BETWEEN:

MEZZOTIN MINERALS INC., a corporation existing under the laws of Ontario

(hereinafter referred to as “Mezzotin”)

- and -

INDUS HOLDING COMPANY, a corporation existing under the laws of Delaware

(hereinafter referred to as “Indus”)

-and -

2670764 ONTARIO INC., a corporation existing under the laws of Ontario

(hereinafter referred to as “Mezzotin Subco”)

-and -

2670995 ONTARIO INC., a corporation existing under the laws of Ontario

(hereinafter referred to as “Canadian Finco”)

WHEREAS the Parties (as hereinafter defined) have agreed, subject to the satisfaction of certain conditions precedent, that prior to or concurrently with the Amalgamation (as hereinafter defined), (A) Indus will create the Indus Voting Common Shares and the Convertible Shares (as hereinafter defined) and the outstanding Indus Shares will be reclassified, directly or indirectly, as Convertible Shares at a rate of one (1) Convertible Share for every one (1) Indus Share held, (B) non-U.S. shareholders of Indus (and such U.S. shareholders of Indus as may elect to participate) will contribute their Convertible Shares to Mezzotin in exchange for Subordinate Voting Shares (as hereinafter defined) at a rate of one (1) Subordinate Voting Share for every one (1) Convertible Share contributed (the “Indus Exchange”), (C) certain shareholders of Indus will purchase Super Voting Shares (as hereinafter defined), all as further described herein and (D) outstanding compensatory Indus Options will be amended (to the extent their terms are not self-operative) to entitle the holders thereof to acquire Subordinate Voting Shares in lieu of Indus Shares on a 1:1 basis, and otherwise on the same terms and conditions as the compensatory Indus Options ((A) through (D), the “Indus Reorganization”);

AND WHEREAS the Parties have agreed, subject to the satisfaction of certain conditions precedent, that Mezzotin, Canadian Finco and Mezzotin Subco will carry out a three-cornered Amalgamation pursuant to Section 174 of the Business Corporations Act (Ontario) (the “OBCA”) pursuant to which, among other things:

 

 

AND WHEREAS prior to or at the Effective Time (as hereinafter defined), Mezzotin will (A) complete the Name Change (as hereinafter defined); (B) create the Subordinate Voting Shares and the Super Voting Shares; (C) complete the Reclassification (as hereinafter defined) whereby the Mezzotin Shares will be reclassified as a smaller number of Subordinate Voting Shares; and (D) complete the Continuance (as hereinafter defined) pursuant to which Mezzotin will continue from the Province of Ontario to the Province of British Columbia, all as further set forth herein;

AND WHEREAS, the Parties wish to make certain representations, warranties, covenants and agreements in connection with the Business Combination (as hereinafter defined);

NOW THEREFORE, in consideration of the mutual benefits to be derived and the representations and warranties, conditions and promises herein contained and other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged) and intending to be legally bound hereby, the Parties agree as follows:

ARTICLE I

GENERAL

Capitalized terms used herein and not otherwise defined have the meanings ascribed to such terms in Schedule A.

Prior to the steps in sections 1.3, 1.6, 1.8 and 1.10, (i) Mezzotin shall take all necessary steps to give effect to and implement the creation of the Subordinate Voting Shares and Super Voting Shares, the removal of the Mezzotin Shares as an authorized class of shares of Mezzotin, the Name Change and the Reclassification upon and subject to the terms of this Agreement; and (ii) Indus shall take all necessary steps to give effect to the creation of the Convertible Shares and Indus Voting Common Shares, and the outstanding Indus Shares will be reclassified, directly or indirectly, as Convertible Shares at a rate of one (1) Convertible Share for every one (1) Indus Share held.

Robert Weakley will subscribe for Super Voting Shares carrying voting rights that would, in aggregate, represent approximately 85% of the voting rights of Mezzotin upon completion of the Business Combination on a fully diluted basis for a purchase price of US$40,000.

Pursuant to the Financing, investors will invest cash for subscription receipts (the “Subscription Receipts”) of Canadian Finco, with each Subscription Receipt representing the right of the holder thereof to receive, in certain circumstances set forth in the terms attached to the Subscription Receipts, one Canadian Finco Share, without any further act or formality, and for no additional consideration.

The Subscription Receipts will automatically be exchanged for Canadian Finco Shares pursuant to the terms and conditions of the Subscription Receipts and the Subscription Receipt Agreement.

 

 

Amalco will be wound up into Mezzotin and as a result, the assets of Amalco (which will consist of the Transferred Funds) will become the property of Mezzotin.

Mezzotin will subscribe for Indus Voting Common Shares for an aggregate purchase price equal to the amount of the Transferred Funds.

Indus will enter into the Contribution Agreement in a form to be agreed between Indus and Mezzotin, each acting reasonably, and at the Effective Time, applicable holders of Convertible Shares and Mezzotin will complete the Indus Exchange, and thereafter U.S. shareholders of Indus may from time to time elect to redeem their Convertible Shares in exchange for Subordinate Voting Shares at the same rate (or under certain circumstances for the cash value of such shares as provided in the share terms for the Convertible Shares) or, to the extent permitted by Mezzotin following the Effective Time, exchange their Convertible Shares directly with Mezzotin for Subordinate Voting Shares at the same rate.

Indus will complete the applicable filings to effect the Continuance.

 

 

The Parties intend and agree that the transactions set forth in Sections 1.3 through 1.10 shall be completed as specified and that no single transaction of Sections 1.3 through 1.10 shall be completed without the intent of the Parties to complete the remaining transactions.

Each Party agrees that: (a) the transactions set forth in Section 1.3 through 1.10 are intended to constitute a single integrated transaction qualifying as a tax-deferred contribution pursuant to Section 351 of the Code; (b) such Party shall retain such records and file such information as is required to be retained and filed pursuant to U.S. Treasury Regulations section 1.351-3 in connection with each of the transactions set forth in subsection (a); and (c) such Party shall otherwise use its best efforts to cause the transactions set forth in subsection (a) to qualify as a tax-deferred contribution, in each case pursuant to Section 351 of the Code. In connection with transactions described in subsection (a), the Parties agree to treat Mezzotin as a United States domestic corporation for all U.S. federal income tax purposes under Section 7874(b) of the Code. Except as otherwise required by this Agreement, no Party shall knowingly take any action, fail to take any action, cause any action to be taken or cause any action to fail to be taken that could reasonably be expected to prevent (1) the transactions described in subsection (a) from each qualifying as a tax-deferred contribution within the meaning of Section 351 of the Code, or (2) Mezzotin from being treated as a United States domestic corporation for U.S. federal income tax purposes under Section 7874(b) of the Code. Notwithstanding the above, each Party intends that the portion of the Indus Reorganization applicable to the U.S. shareholders constitutes a tax-free recapitalization under Section 368(a)(1)(E) of the Code of their Indus Shares into new Indus voting common shares (herein, the Convertible Shares). Each Party hereto agrees to act in good faith, consistent with the terms of this Agreement and the intent of the Parties and the intended treatment of such transactions as set forth in this Section 1.12. Notwithstanding the foregoing, no Party makes any representation, warranty or covenant to any other party or to any shareholder of Indus or Canadian Finco or other holder of Indus or Canadian Finco securities (including, without limitation, stock options, warrants, subscription receipts, debt instruments or other similar rights or instruments) regarding the tax treatment of the transactions contemplated by this Agreement, including, but not limited to, (i) whether the transactions described in subsection (a) will each qualify as a tax-deferred contribution within the meaning of Section 351 of the Code, (ii) whether the U.S. shareholders of Indus may receive the Convertible Shares and their inherent exchange rights on a tax-free basis as a tax-free recapitalization under Section 368(a)(1)(E) of the Code, or (iii) or whether Mezzotin will be treated as a United States domestic corporation for U.S. federal income tax purposes under Section 7874(b) of the Code as a result of the transactions set forth in subsection (a).

Each of the Parties hereby agrees that concurrently with the completion of the Business Combination, all of the current directors and officers of Mezzotin and Mezzotin Subco shall resign without payment by or any liability of Mezzotin, Canadian Finco, Mezzotin Subco, Amalco or Indus, and each such director and officer shall execute and deliver a release in favour of Mezzotin, Mezzotin Subco, Canadian Finco, Amalco and Indus, in a form acceptable to Mezzotin and Indus, each acting reasonably, and the board of directors of Mezzotin shall consist of seven directors, and the directors and officers of Mezzotin shall be comprised of persons nominated by Indus and conditionally elected at the Mezzotin Meeting (collectively, the “New Mezzotin Nominees”).

 

 

ARTICLE II

REPRESENTATIONS AND WARRANTIES OF INDUS AND CANADIAN FINCO

Each of Indus and Canadian Finco jointly and severally represents and warrants to and in favour of Mezzotin and Mezzotin Subco and acknowledges that Mezzotin and Mezzotin Subco are relying on such representations and warranties in connection with this Agreement and the transactions contemplated herein:

 

 

Indus is not a U.S. real property holding corporation as that term is defined in Section 897(c) of the Code.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF MEZZOTIN AND MEZZOTIN SUBCO

Each of Mezzotin and Mezzotin Subco hereby jointly and severally represents and warrants to Indus and Canadian Finco as follows and acknowledges that each of Indus and Canadian Finco is relying on such representations and warranties in entering into this Agreement and completing the transactions contemplated herein:

 

nor is Mezzotin aware of any basis for any such action, suit, claim, proceeding or investigation.

Each Mezzotin Group Member has timely filed, or has caused to be timely filed on its behalf, all Tax Returns required to be filed by it prior to the date hereof, all such Tax Returns are complete and accurate in all material respects. All Taxes shown to be due on such Tax Returns, required to be shown or otherwise owed, have been timely paid, other than those which are being contested in good faith and in respect of which adequate reserves have been provided in the most recently published financial statements of Mezzotin. Mezzotin's most recent audited consolidated financial statements reflect a reserve in accordance with IFRS for all Taxes payable by the Mezzotin Group Members for all taxable periods and portions thereof through the date of such financial statements. No deficiency with respect to any Taxes has been proposed, asserted or assessed in writing against any Mezzotin Group Member, there are no actions, suits, proceedings, investigations or claims pending or threatened against any Mezzotin Group Member in respect of Taxes or any matters under discussion with any Government relating to Taxes, and no waivers or written requests for waivers of the time to assess any such Taxes are outstanding or pending. Each Mezzotin Group Member has withheld from each payment made to any of their past or present employees, officers or directors, and to any non-resident of Canada, the amount of all Taxes required to be withheld therefrom and have paid the same to the proper tax or receiving officers within the time required under applicable Law. Each Mezzotin Group Member has remitted to the appropriate tax authorities within the time limits required all amounts collected by it in respect of Taxes. There are no Liens for Taxes upon any asset of the Mezzotin Group except Liens for Taxes not yet due.

Other than the Mezzotin Stock Option Plan, Mezzotin does not maintain or contribute to any Employee Plan. The Mezzotin Stock Option Plan has been approved by the TSX-V and was adopted by Mezzotin in accordance with the requirements of the TSX-V and complies in all material respects with the applicable policies of the TSX-V.

Since December 31, 2017, other than as disclosed in Mezzotin Securities Documents filed by Mezzotin on SEDAR since such date, the Mezzotin Group has not carried on any material business activities, there has been no Material Adverse Change in the Mezzotin Group, and except as contemplated by the Business Combination and this Agreement:

 

 

Each Mezzotin Group Member is in compliance with all applicable Environmental Laws and has not violated any then current Environmental Laws as applied at the relevant time. All operations of the Mezzotin Group, past or present, conducted on any real property, leased or owned by any member of the Mezzotin Group, past or present, and such properties themselves while occupied by a member of the Mezzotin Group have been and are in compliance with all Environmental Laws. No Mezzotin Group Member is the subject of: (i) any proceeding, application, order or directive which relates to any environmental, health or safety matter; or (ii) any demand or notice with respect to any Environmental Laws. Each Mezzotin Group Member has made adequate reserves for all reclamation obligations and has made appropriate arrangements, through obtaining reclamation bonds or otherwise to discharge such reclamation obligations, to the extent applicable. No member of the Mezzotin Group has caused or permitted the release of any Hazardous Substances on or to any of the assets or any other real property owned, leased or occupied by any member of the Mezzotin Group, either past or present (including underlying soils and substrata, surface water and groundwater) in such a manner as: (A) would be reasonably likely to impose liability for cleanup, natural resource damages, loss of life, personal injury, nuisance or damage to other property; (B) would be reasonably likely to result in imposition of a Lien on or the expropriation of any of the assets of any member of the Mezzotin Group; or (C) at levels which exceed remediation and/or reclamation standards under any Environmental Laws or standards published or administered by those Governmental Authorities responsible for establishing or applying such standards. There is no environmental liability and there are no factors likely to give rise to any environmental liability affecting any of the current or former properties leased, owned or operated by any Mezzotin Group Member, including without limitation, properties disposed of pursuant to the Sabi Star Sale.

Mezzotin is the absolute legal and beneficial owner of, and has good and marketable title to, all of its material property or assets (real and personal, tangible and intangible, including leasehold interests) including all the properties and assets reflected in the most recent financial statements of Mezzotin included in the Mezzotin Securities Documents and such properties and assets are not subject to any Lien or defect in title.

 

No Mezzotin Group Member has any Indebtedness other than the Max Mind Promissory Notes.

There are no material Liabilities of any Mezzotin Group Member or in respect of which any Mezzotin Group Member may become liable on or after the consummation of the transactions contemplated hereby other than:

Other than the Mezzotin Finder’s Fee, no Mezzotin Group Member or, to the knowledge of Mezzotin, any of their respective Associates, Affiliates or Advisers have retained any broker or finder in connection with the transactions contemplated hereby, nor have any of the foregoing incurred any Liability to any broker or finder by reason of any such transaction.

Neither Mezzotin nor any Mezzotin Group Member nor to the knowledge of Mezzotin, any director, officer, employee or consultant of the foregoing, has (i) violated any anti-bribery or anti-corruption laws applicable to Mezzotin or any Mezzotin Group Member, including but not limited to the U.S. Foreign Corrupt Practices Act and Canada’s Corruption of Foreign Public Officials Act, or (ii) offered, paid, promised to pay, or authorized the payment of any money, or offered, given, promised to give, or authorized the giving of anything of value, that goes beyond what is reasonable and customary and/or of modest value: (X) to any Government Official, whether directly or through any other Person, for the purpose of influencing any act or decision of a Government Official in his or her official capacity; inducing a Government Official to do or omit to do any act in violation of his or her lawful duties; securing any improper advantage; inducing a Government Official to influence or affect any act or decision of any Governmental Authority; or assisting any representative of Mezzotin or any Mezzotin Group Member in obtaining or retaining business for or with, or directing business to, any Person; or (Y) to any Person, in a manner which would constitute or have the purpose or effect of public or commercial bribery, or the acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business or any improper advantage. Neither Mezzotin nor any Mezzotin Group Member nor to the knowledge of Mezzotin, any director, officer, employee, consultant, representative or agent of foregoing, has (i) conducted or initiated any review, audit, or internal investigation that concluded Mezzotin or any Mezzotin Group Member or any director, officer, employee, consultant, representative or agent of the foregoing violated such laws or committed any material wrongdoing, or (ii) made a voluntary, directed, or involuntary disclosure to any Governmental Authority responsible for enforcing anti-bribery or anti-corruption Laws, in each case with respect to any alleged act or omission arising under or relating to non-compliance with any such Laws, or received any notice, request, or citation from any person alleging non-compliance with any such Laws.

 

ARTICLE IV 

COVENANTS

Indus hereby covenants and agrees with Mezzotin and Mezzotin Subco that it will:

For greater certainty, the Parties agree and acknowledge that Indus may undertake such debt and equity financings in connection with the Business Combination as it determines in its sole discretion, if any, including the Financing, and that a secondary offering of Indus Shares may occur concurrently with or subsequent to the Financing.

Mezzotin hereby covenants and agrees with Indus and Canadian Finco as follows:

 

 

Canadian Finco hereby covenants and agrees with Mezzotin and Mezzotin Subco that it will:

Mezzotin Subco hereby covenants and agrees with Indus and Canadian Finco that it will:

 

 

ARTICLE V

CONDITIONS TO OBLIGATIONS OF MEZZOTIN

The obligation of Mezzotin and Mezzotin Subco to complete the Business Combination is subject to the satisfaction of the following conditions on or prior to the Effective Date, each of which may be waived by Mezzotin and Mezzotin Subco:

 

ARTICLE VI

CONDITIONS TO OBLIGATIONS OF INDUS AND CANADIAN FINCO

The obligation of Indus and Canadian Finco to complete the Business Combination is subject to the satisfaction of the following conditions on or prior to the Effective Date, each of which may be waived by Indus:

 

 

 

ARTICLE VII 

MUTUAL CONDITIONS PRECEDENT

The obligations of Mezzotin, Mezzotin Subco, Indus and Canadian Finco to complete the Business Combination are subject to the satisfaction of the following conditions on or prior to the Effective Date, each of which may be waived only with the consent in writing of Mezzotin and Indus:

 

 

ARTICLE VIII 

CLOSING

Subject to the satisfaction of the conditions in Articles 5, 6 and 7 or waiver thereof by the Parties entitled to waive such conditions, the Closing shall take place at the offices of Indus’s counsel, Cassels Brock & Blackwell LLP at 11:00 a.m. (Toronto time) on the Effective Date or on such other date as Indus and Mezzotin may agree.

This Agreement may be terminated at any time prior to the Effective Time, whether before or after approval of the Mezzotin Subco Amalgamation Resolution by Mezzotin or the matters set out in the Mezzotin Circular by the Mezzotin Shareholders or any other matters presented in connection with the Business Combination:

 

 

In the event of a termination of this Agreement pursuant to this Section 8.2, this Agreement shall become null and void and no Party shall have any Liability with respect hereto other than for any breach by such Party prior to the termination, provided that the provisions of Sections 10.5 (Costs and Expenses) and 10.8 (Confidentiality) shall survive.

The representations and warranties set forth in herein shall expire and be terminated on the earlier of the Effective Date or the termination of this Agreement.

The Parties agree to proceed diligently and in good faith to complete all transactions contemplated herein as soon as possible.

ARTICLE IX 

STANDSTILL

Indus hereby agrees from the date hereof until the date this Agreement is terminated pursuant to its terms, subject to the terms of this Agreement not to initiate, propose, assist or participate in any activities or solicitations in opposition to or in competition with the Business Combination and, without limiting the generality of the foregoing, not to induce or attempt to induce any other Person to initiate any shareholder proposal, acquisition of securities or any other form of transaction inconsistent with completion of the Business Combination and not to take actions of any kind which may reduce the likelihood of success of the Business Combination, except as required by statutory law.

 

 

Mezzotin hereby agrees from the date hereof until the date this Agreement is terminated pursuant to its terms, subject to the terms of this Agreement:

ARTICLE X

MISCELLANEOUS

From time to time, as and when requested by any Party, the other Parties shall execute and deliver, and use all commercially reasonable efforts to cause to be executed and delivered, such documents and instruments and shall take, or cause to be taken, such further or other actions as may be reasonably requested in order to:

This Agreement, which includes the Schedules hereto and the other documents, agreements, and instruments executed and delivered pursuant to or in connection with this Agreement, contains the entire Agreement between the Parties with respect to matters dealt within herein and, except as expressly provided herein, supersedes all prior arrangements or understandings with respect thereto, including the Letter of Intent.

The descriptive headings of this Agreement are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement.

 

 

All notices or other communications which are required or permitted hereunder shall be in writing and sufficient if delivered personally or sent by electronic mail, nationally recognized overnight courier, or registered or certified mail, postage prepaid, addressed as follows:

Mezzotin Minerals Inc.

150 York Street

Suite 1600

Toronto, ON M5H 3S5

Canada

 

with a copy (which shall not constitute notice) to:

 

Kirsh Securities Law Professional Corporation

181 University Avenue

Suite 800

Toronto, ON M5H 2X7

Email:     [email address redacted]

Indus Holding Company

19 Quail Run Circle

Unit B

Salinas, CA 93907

United States

 

with a copy (which shall not constitute notice) to:

 

Cassels Brock & Blackwell LLP

2100 Scotia Plaza, 40 King Street West

Toronto, ON M5H 3C2

 

Any such notices or communications shall be deemed to have been received: (i) if delivered personally or sent by nationally recognized overnight courier or by electronic mail, on the date of such delivery; or (ii) if sent by registered or certified mail, on the third Business Day following the date on which such mailing was postmarked. Any Party may by notice change the address to which notices or other communications to it are to be delivered or mailed.

The Parties acknowledge and agree that, whether or not the transactions contemplated hereby are completed, all costs and expenses relating to the transactions contemplated by this Agreement will be paid by the Party incurring same, provided that Indus and its counsel shall be primarily responsible for preparation, printing and mailing of all documentation and filings in connection with the Business Combination and the payment of all related costs and fees, all shareholder meetings and the application to the CSE for the listing of the Subordinate Voting Shares following completion of the Business Combination, while Mezzotin and its counsel shall perform a review function and cooperate and assist in the preparation of such documentation and required filings; however, each Party shall permit the other Party and its counsel to review the preparation of all documentation to be sent to shareholders of such Party or otherwise used in connection with the approval of the Business Combination by the shareholders of such Party and the CSE. The Parties agree that Mezzotin’s unpaid costs and expenses relating to the Business Combination as of the Effective Time (the “Mezzotin Transaction Costs”) will not exceed $75,000 (exclusive of HST).

This Agreement shall be governed by and construed in accordance with the Laws of the Province of Ontario and the federal laws of Canada applicable therein, but references to such laws shall not, by conflict of laws, rules or otherwise require application of the law of any jurisdiction other than the Province of Ontario and the Parties hereby further irrevocably attorn to the jurisdiction of the Courts of the Province of Ontario in respect of any matter arising hereunder or in connection with the transactions contemplated in this Agreement.

This Agreement shall be binding upon and shall enure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns, provided that this Agreement shall not be assignable otherwise than by operation of law by any Party without the prior written consent of the other Parties, and any purported assignment by any Party without the prior written consent of the other Parties shall be void.

The Parties agree that no disclosure or announcement, public or otherwise, in respect of the Business Combination, this Agreement or the transactions contemplated herein shall be made by any Party or its representatives without the prior agreement of the other Parties as to timing, content and method, hereto, provided that the obligations herein will not prevent any Party from making, after consultation with the other Parties, such disclosure as its counsel advises is required by applicable Law or the rules and policies of the CSE or the TSX-V (or any other relevant stock exchange). If any of Mezzotin, Indus, Canadian Finco or Mezzotin Subco is required by applicable Law or regulatory instrument, rule or policy to make a public announcement with respect to the Business Combination, such Party hereto will provide as much notice to the other of them as reasonably possible, including the proposed text of the announcement.

The remedies of the Parties with respect to the Business Combination and this Agreement, whether prior to, following or in connection with any termination of this Agreement, shall be solely monetary in nature and no Party shall have a right of specific performance or to any similar equitable remedy.

 

Any waiver of any term or condition of this Agreement, or any amendment or supplementation of this Agreement, shall be effective only if in writing. A waiver of any breach or failure to enforce any of the terms or conditions of this Agreement shall not in any way affect, limit, or waive a Party's rights hereunder at any time to enforce strict compliance thereafter with every term or condition of this Agreement.

In the event that any provision contained in this Agreement shall be determined to be invalid, illegal, or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and the remaining provisions of this Agreement shall not, at the election of the Party for whose benefit the provision exists, be in any way impaired, and such invalid, illegal, or unenforceable provision shall be deemed to be replaced by a valid, legal, and enforceable provision that most nearly matches the intent of the Parties with respect to such invalid, illegal, or unenforceable provision.

Except as otherwise set forth herein, all references to amounts of money in this Agreement are to Canadian Dollars.

This Agreement is strictly between the Parties and, except as specifically provided herein, no other person or entity and no director, officer, stockholder, employee, agent, independent contractor or any other person or entity shall be deemed to be a third-party beneficiary of this Agreement.

This Agreement may be executed in any number of counterparts by original or telefacsimile or other electronic signature, each of which will be an original as regards any party whose signature appears thereon and all of which together will constitute one and the same instrument. This Agreement will become binding when one or more counterparts hereof, individually or taken together, bears the signatures of all the parties reflected hereon as signatories.

[REMAINDER OF THE AGREEMENT IS INTENTIONALLY BLANK]

 

IN WITNESS WHEREOF, the undersigned have executed and delivered this Agreement as of the day and year first above written.

		MEZZOTIN MINERALS INC.
		By:	/s/ Lawrence Schreiner
			Name:
			Title: CFO
		INDUS HOLDING COMPANY
		By:	/s/ Robert Weakley
			Name:
			Title: CEO
		2670764 ONTARIO INC.
		By:	/s/ Lawrence Schreiner
			Name:
			Title: President
		2670995 ONTARIO INC.
		By:	/s/ Eric Klein
			Name:
			Title: Director

 

SCHEDULE A

DEFINITIONS

“Adsani” means Adsani Exploration (Proprietary) Limited, a company existing under the laws of the Republic of South Africa.

“Advisers” when used with respect to any Person, shall mean such Person's directors, officers, employees, representatives, agents, counsel, accountants, advisers, engineers, and consultants.

“Affiliate” has the meaning ascribed to such term in National Instrument 45-106 – Prospectus Exemptions of the Canadian Securities Administrators.

“Agreement” means this Business Combination Agreement, as it may be amended or supplemented at any time and from time to time after the date hereof.

“Amalco” means the corporation resulting from Amalgamation.

“Amalco Shares” means common shares in the capital of Amalco.

“Amalgamation” means an amalgamation of Mezzotin Subco and Canadian Finco pursuant to Section 174 of the OBCA, on the terms and subject to the conditions set out in the Amalgamation Agreement and this Agreement, subject to any amendments or variations thereto made in accordance with the provisions of the Amalgamation Agreement and this Agreement.

“Amalgamation Agreement” means the amalgamation agreement in the form attached hereto as Schedule B to be entered into between Mezzotin Subco, Mezzotin and Canadian Finco, to effect the Amalgamation.

“Articles of Amalgamation” means the articles of amalgamation to be jointly completed and filed by Mezzotin and Canadian Finco with the Director under the OBCA, giving effect to the Amalgamation of Mezzotin Subco and Canadian Finco upon and subject to the terms of this Agreement.

“Associate” has the meaning ascribed to such term in the Securities Act (Ontario).

“BCBCA” means the Business Corporations Act (British Columbia).

“Breaching Party” has the meaning ascribed to such term in Section 8.2(d).

“Business Combination” means the completion of the steps set out in Article 1 on the basis set out in this Agreement.

“Business Day” means any day other than a Saturday or Sunday or other day on which Canadian Chartered Banks located in the City of Toronto are required or permitted to close.

“Canadian Finco Compensation Options” means options to acquire Canadian Finco Shares granted to certain agents as compensation pursuant to the Financing.

“Canadian Finco Shareholders” means the holders of the issued and outstanding Canadian Finco Shares.

“Canadian Finco Shares” means the common shares in the capital of Canadian Finco.

 

 

“Canadian Securities Laws” means the Securities Act (or equivalent legislation) in each of the provinces and territories of Canada and the respective regulations under such legislation together with applicable published rules, regulations, policy statements, national instruments and memoranda of understanding of the Canadian Provincial Securities Administrators and the securities regulatory authorities in such provinces and territories.

“Certificate of Amalgamation” means the certificate of amalgamation to be used by the Director under the OBCA following the filing of the Articles of Amalgamation.

“Code” means the U.S. Internal Revenue Code of 1986, as amended.

“Confidential Information” means any information concerning the Disclosing Party or its business, properties and assets made available to the Receiving Party; provided that it does not include information which: (a) is generally available to or known by the public other than as a result of improper disclosure by the Receiving Party or pursuant to a breach of Section 10.8 by the Receiving Party; (b) is obtained by the Receiving Party from a source other than the Disclosing Party, provided that, to the reasonable knowledge of the Receiving Party, such source was not bound by a duty of confidentiality to the Disclosing Party or another party with respect to such information; (c) is developed by the Receiving Party independently of any disclosure by the Disclosing Party; or (d) was in the Receiving Party’s possession prior to its disclosure by the Disclosing Party.

“Continuance” means the continuance of Mezzotin from the Province of Ontario to the Province of British Columbia, pursuant to which Mezzotin will thereafter be governed by the provisions of the BCBCA instead of the OBCA;

“Contract” means any contract, lease, agreement, instrument, license, commitment, order, or quotation, written or oral.

“Contribution Agreement” means the contribution agreement to be entered into between Indus and Mezzotin giving effect to the Indus Exchange.

“Convertible Shares” means a newly created class of non-voting common shares of Indus having the terms and conditions set out in Schedule D.

“CSE” means the Canadian Securities Exchange.

“Director” means the Director appointed pursuant to Section 278 of the OBCA.

“Disclosing Party” means any Party or its representatives disclosing Confidential Information to the Receiving Party.

“Dissenting Mezzotin Shareholder” means a registered holder of Mezzotin Shares who validly exercises the right of dissent available to such holder under section 185 of the OBCA in respect of the resolution approving the Reclassification, Continuance or both;

“Dissenting Mezzotin Shares” means the Mezzotin Shares held by Dissenting Mezzotin Shareholders;

 “Effective Date” has the meaning ascribed to such term in Section 1.6(e).

“Effective Time” means the time of filing of the Articles of Amalgamation with the Director under the OBCA on the Effective Date.

 

 

“Employee Plans” means all plans, arrangements, agreements, programs, policies or practices, whether oral or written, formal or informal, funded or unfunded, maintained for employees, including, without limitation:

 “Environmental Laws” means Laws regulating or pertaining to the generation, discharge, emission or release into the environment (including without limitation ambient air, surface water, groundwater or land), spill, receiving, handling, use, storage, containment, treatment, transportation, shipment, disposition or remediation or clean-up of any Hazardous Substance, as such Laws are amended and in effect as of the date hereof.

“Financing” means the private placement of Subscription Receipts to be completed prior to the Effective Date.

“Government” means:

“Government Official” means:

 

 

“Governmental” means pertaining to any Government.

“Governmental Authority” means and includes, without limitation, any Government or other political subdivision of any Government, judicial, public or statutory instrumentality, court, tribunal, commission, board, agency (including those pertaining to health, safety or the environment), authority, body or entity, or other regulatory bureau, authority, body or entity having legal jurisdiction over the activity or Person in question and, for greater certainty, includes the TSX-V and the CSE.

“Hazardous Substance” means any pollutant, contaminant, waste or chemical or any toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous or deleterious substance, waste or material, including hydrogen sulphide, arsenic, cadmium, copper, lead, mercury, petroleum, polychlorinated biphenyls, asbestos and urea-formaldehyde insulation, and any other material, substance, pollutant or contaminant regulated or defined pursuant to, or that could result in liability under, any applicable Environmental Law.

“IFRS” means International Financial Reporting Standards.

 “Income Tax” means any Tax based on or measured by income (including without limitation, based on net income, gross income, income as specifically defined, earnings, profits or selected items of income, earnings or profits); and any interest, penalties and additions to tax with respect to any such tax (or any estimate or payment thereof).

“Indebtedness” of any Person means, without duplication, (i) the principal of and premium (if any) in respect of (A) indebtedness of such Person for money borrowed (which shall include the outstanding balances of any corporate credit card accounts) and (B) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible or liable; (ii) all obligations of such Person issued or assumed as the deferred purchase price of property or services, all conditional sale obligations of such Person and all obligations of such Person under any title retention agreement (but excluding trade accounts payable arising in the ordinary course of business that are not more than 60 days past due); (iii) all obligations of such Person under leases that would be required to be capitalized in accordance with IFRS (including any such liabilities that are not capitalized); (iv) all obligations of such Person under any letter of credit, banker’s acceptance or similar credit transaction or any book overdraft; (v) all obligations of such Person under interest rate cap, swap, collar or similar transactions or currency hedging transactions; (vi) the liquidation value of all redeemable preferred securities of such Person; (vii) any accrued interest, penalties and other obligations relating to the foregoing; (viii) all obligations of the type referred to in clauses (i) through (vii) of any Persons for the payment of which such Person is responsible or liable, directly or indirectly, as obligor, guarantor, surety or otherwise, including guarantees of such obligations; and (ix) all obligations of the type referred to in clauses (i) through (viii) of other Persons secured by any Lien on any property or asset of such Person (whether or not such obligation is assumed by such Person).

 “Indemnifying Shareholders” has the meaning ascribed to such term in Section 6.1(n).

“Indemnity” has the meaning ascribed to such term in Section 6.1(n).

 “Indus Common Shares” means the shares of common stock of Indus, as constituted on the date of this Agreement.

“Indus Exchange” has the meaning ascribed to such term in the recitals to this Agreement.

“Indus Financial Statements” has the meaning ascribed to such term in Section 2.4(a).

 

 

“Indus Options” means stock options to acquire Indus Shares, including outstanding compensation options held by the placement agent for the Indus Series B Shares.

“Indus Related Agreements” means, collectively, the Second Amended and Restated Investors Rights Agreement, the Second Amended and Restated Voting Agreement, and the Amended and Restated Right of First Refusal and Co-Sale Agreement, in each case between Indus and the Investors, in effect as of the date of this Agreement.

 

“Indus Reorganization” has the meaning ascribed to such term in the recitals to this Agreement.

 “Indus Series A Shares” means the series A preferred stock of Indus, as constituted on the date of this Agreement.

“Indus Series A2 Shares” means the series A2 preferred stock of Indus, as constituted on the date of this Agreement.

“Indus Series B Shares” means the series B preferred stock of Indus, as constituted on the date of this Agreement.

“Indus Shares” means the Indus Common Shares, Indus Series A Shares, Indus Series A2 Shares and Indus Series B Shares, collectively.

“Indus Voting Common Shares” means a newly created class of voting common shares of Indus having the terms and conditions set out in Schedule D.

 

“Indus Warrants” means share purchase warrants to acquire Indus Shares.

“Investors” means, collectively, the holders of the Indus Series A Shares, the Indus Series A2 Shares, the Indus Series B Shares, the Indus Warrants to purchase Indus Common Shares issued together with the senior notes of Indus, and the convertible notes of Indus.

 

“ITA” means the Income Tax Act (Canada), as amended and all regulations thereunder.

“knowledge of Indus” means the actual knowledge of Robert Weakley, without additional inquiry.

“Law” means any of the following of, or issued by, any Government, in effect on or prior to the date hereof, including any amendment, modification or supplementation of any of the following from time to time subsequent to the original enactment, adoption, issuance, announcement, promulgation or granting thereof and prior to the date hereof: any statute, law, act, ordinance, code, rule or regulation of any writ, injunction, award, decree, judgment or order.

“Letter of Intent” means the letter of intent, dated November 12, 2018, between Indus and Mezzotin related to the Business Combination.

“Liability” means any liability, obligation or commitment of any nature whatsoever (whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, matured or unmatured, or due or to become due, or otherwise), including any liability for Taxes.

“Lien” means any mortgage, pledge, assignment, charge, lien, claim, security interest, adverse interest, adverse claim, other third party interest or encumbrance of any kind, whether contingent or absolute, and any agreement, option, right or privilege (whether by Law, contract or otherwise) capable of becoming any of the foregoing.

 

 

“Material Adverse Change” or “Material Adverse Effect” means, with respect to any Party any change, event, effect, occurrence or state of facts that has, or could reasonably be expected to constitute a material adverse change in respect of or to have a material adverse effect on, the business, properties, assets, liabilities (including contingent liabilities), results of operations or financial condition of the Party and its subsidiaries, as applicable, taken as a whole. The foregoing shall not include any change or effects attributable to: (i) any matter that has been disclosed in writing to the other Party or any of its Advisers by a Party or any of its Advisers in connection with this Agreement; (ii) changes relating to general economic, political or financial conditions; or (iii) relating to the state of securities markets in general.

“Max Mind Promissory Notes” means the promissory notes issued by Mezzotin in favour of Max Mind Investment Limited (with an aggregate principal amount remaining outstanding of US$50,000 as of March 26, 2019) and bearing interest at the rate of 5% per annum.

 “Measurement Date” means the date which is two Business Days prior to the date of this Agreement.

“Mezzotin” means Mezzotin Minerals Inc., a corporation existing under the OBCA.

“Mezzotin Bonuses” means the bonuses proposed to be granted and accrued for certain directors and officers of Mezzotin at and for the year ended December 31, 2018 in the aggregate amount of C$75,000.

 “Mezzotin CFO Contract” means the oral contract between Mezzotin and Management Bandwith Corporation for the provision of Chief Financial Officer and related corporate services on a month-to-month basis at the rate of C$3,500 per month and terminable at any time upon written notice.

“Mezzotin Circular” means the management information circular of Mezzotin dated December 17, 2018 in respect of the Mezzotin Meeting.

“Mezzotin Compensation Options” means options to acquire Subordinate Voting Shares to be issued to former holders of Canadian Finco Compensation Options, which options will be substantially on the same terms and conditions as the Canadian Finco Compensation Options except for the right to receive Subordinate Voting Shares in lieu of Canadian Finco Shares upon, among other things, payment of the applicable exercise price.

“Mezzotin Finder’s Fee” means a finder’s fee payable by Mezzotin in connection with the Amalgamation in Mezzotin Shares in an amount equal to 9.99% of the Pre-Transaction Mezzotin Shares (after giving effect to the issuance of such finder’s fee shares).

“Mezzotin Finder’s Fee Agreement” means the agreement between Mezzotin and Kirsh Securities Law Professional Corporation in respect of the Mezzotin Finder’s Fee.

“Mezzotin Group” means and includes Mezzotin and Mezzotin Subco.

“Mezzotin Group Member” means and includes any member of the Mezzotin Group.

“Mezzotin Investments” means Mezzotin Investments (Private) Limited, a company existing under the laws of Zimbabwe.

“Mezzotin Meeting” means the special meeting of the Mezzotin Shareholders held on January 16, 2019, which approved the Mezzotin Meeting Matters as set out in the Mezzotin Circular.

 

 

“Mezzotin Meeting Matters” means, collectively, the creation of the Subordinate Voting Shares and Super Voting Shares, the Name Change, Reclassification, Continuance, delisting of the Mezzotin Shares from the TSX-V, election of the board of directors, appointment of new auditors and adoption of a new equity compensation plan of Mezzotin effective on completion of the Business Combination, and such other matters as Indus may reasonably request in connection with the completion of the Business Combination.

“Mezzotin Securities Documents” has the meaning ascribed to such term in Section 3.4(a).

“Mezzotin Shareholders” means the holders of Mezzotin Shares.

“Mezzotin Shares” means the common shares in the capital of Mezzotin prior to giving effect to the Reclassification.

“Mezzotin Stock Option Plan” means the stock option plan of Mezzotin as most recently approved by Mezzotin Shareholders at an annual and special meeting held on June 25, 2018.

“Mezzotin Subco” means 2670764 Ontario Inc., a wholly-owned subsidiary of Mezzotin, created for the purpose of effecting the Business Combination.

“Mezzotin Subco Amalgamation Resolution” means the resolution of Mezzotin, as sole shareholder of Mezzotin Subco, approving the Amalgamation.

“Mezzotin Subco Shares” means the common shares in the capital of Mezzotin Subco.

“Mezzotin Transaction Costs” has the meaning ascribed to such term in Section 10.5.

 “Name Change” means the change of Mezzotin’s name to “Indus Holdings, Inc.”, or such other name designated by Indus and that is acceptable to the regulatory authorities.

“New Mezzotin Nominees” has the meaning ascribed to such term in Section 1.11.

“OBCA” has the meaning ascribed to such term in the recitals to this Agreement;

“Offering Price” means the offering price per Subscription Receipt pursuant to the Financing.

 “Parties” and “Party” means the parties to this Agreement.

 “Person” means any corporation, partnership, limited liability company or partnership, joint venture, trust, unincorporated association or organization, business, enterprise or other entity; any individual; and any Government.

“Pre-Transaction Mezzotin Share Value” means $2.25 million, less the Working Capital Deficiency.

“Pre-Transaction Mezzotin Shareholders” means holders of Pre-Transaction Mezzotin Shares.

“Pre-Transaction Mezzotin Shares” means Mezzotin Shares as of immediately prior to the Effective Time (including, without limitation, any Mezzotin Shares issued as contemplated in Section 4.2(e)(v) of this Agreement).

“Pro Forma Balance Sheet” shall have the meaning ascribed to such term in Section 4.2(g).

 

 

“Receiving Party” means any Party or its representatives receiving Confidential Information from a Disclosing Party.

“Reclassification” means the reclassification of the Mezzotin Shares into Subordinate Voting Shares on a basis that results in the Pre-Transaction Mezzotin Shareholders holding, in the aggregate, Subordinate Voting Shares having a value equal to the Pre-Transaction Mezzotin Share Value, such valuation to be determined on the basis of a deemed price per Subordinate Voting Share equal to the Offering Price, and, if the Offering Price is denominated in US dollars, as converted to Canadian dollars based on the one week average exchange rate published by the Bank of Canada on the Measurement Date.

 “Sabi Star Sale” means the sale of Mezzotin’s previously indirectly owned Sabi Star rare earth property located in Zimbabwe, which constituted the sale of substantially all of the assets of Mezzotin, as disclosed in the Mezzotin Securities Documents.

“SEC” means the United States Securities and Exchange Commission.

[commercially sensitive information redacted]

“Subordinate Voting Shares” means the Subordinate Voting Shares into which the Mezzotin Shares will be reclassified pursuant to the Reclassification, having the terms and conditions set out in Schedule C.

“Subscription Receipt Agreement” means the subscription receipt agreement among Canadian Finco, Indus, Beacon Securities Limited and Odyssey Trust Company setting out the terms and conditions of the Subscription Receipts.

“Subscription Receipts” has the meaning ascribed to such term in Section 1.4.

“subsidiary” means, with respect to a specified corporation, any corporation of which more than fifty per cent (50%) of the outstanding shares ordinarily entitled to elect a majority of the board of directors thereof (whether or not shares of any other class or classes shall or might be entitled to vote upon the happening of any event or contingency) are at the time owned directly or indirectly by such specified corporation, and shall include any corporation in like relation to a subsidiary.

“Super Voting Shares” means the Super Voting Shares of Mezzotin having the terms and conditions set out in Schedule E.

“Support Agreements” has the meaning ascribed to such term in Section 4.2(b).

 “Tax” means any tax, levy, charge or assessment imposed by or due any Government, together with any interest, penalties, and additions to tax relating thereto, including without limitation, any of the following:

 

 

“Tax Return” means all returns, amended returns and reports (including elections, declarations, disclosures, schedules, estimates and information returns) required to be supplied to a Tax authority with jurisdiction over the applicable party.

“Transfer Restrictions” has the meaning ascribed to such term in Section 4.2(b).

“Transferred Funds” means the net proceeds of the Financing retained by FinanceCo, after deduction of expenses of the Financing.

“TSX-V” means the TSX Venture Exchange.

“Working Capital Deficiency” the amount by which the current liabilities of Mezzotin (including an accrual for the Mezzotin Bonuses, if awarded, and related employer payroll Tax) exceeds the current assets of Mezzotin, calculated as of the date which is two Business Days prior to the Effective Date excluding (a) Mezzotin Transaction Costs; and (b) [commercially sensitive information redacted].

SCHEDULE B

AMALGAMATION AGREEMENT

THIS AGREEMENT made as of the ● day of ●, 2019

AMONG:

2670995 ONTARIO INC.

a corporation incorporated under the laws of the Province of Ontario ("Finco")

- and -

2670764 ONTARIO INC.

a corporation incorporated under the laws of the Province of Ontario ("Mezzotin Subco")

- and -

MEZZOTIN MINERALS INC.

a corporation incorporated under the laws of the Province of Ontario

("Mezzotin")

RECITALS:

WHEREAS Mezzotin, Mezzotin Subco, Finco and Indus Holding Company have entered into a business combination agreement dated as of March 29, 2019 pursuant to which the parties thereto have agreed, amongst other matters, that the business and assets of Finco will be combined with those of Mezzotin (the "Business Combination Agreement");

AND WHEREAS it is desirable for Mezzotin Subco and Finco to amalgamate (the "Amalgamation") under the OBCA (as hereinafter defined) upon the terms and conditions hereinafter set out;

NOW THEREFORE in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged) the parties hereto do hereby agree as follows:

In this Agreement including the recitals:

"Acquisition" means the acquisition by Mezzotin of Finco pursuant to the terms of the Business Combination Agreement;

"Agreement" means this agreement and any amendment made to this Agreement;

"Amalco" means the corporation resulting from the Amalgamation and continuing the corporate existence of the Amalgamating Corporations;

 

 

"Amalco Shares" means the common shares in the capital of Amalco;

"Amalgamating Corporation" means each of Mezzotin Subco and Finco and "Amalgamating Corporations" means both of them;

"Amalgamation" means the amalgamation of the Amalgamating Corporations pursuant to the provisions of section 178 of the OBCA in the manner contemplated in and pursuant to this Agreement;

"Business Combination Agreement" has the meaning ascribed thereto in the recitals to this Agreement;

"Finco Shares" means common shares in the capital of Finco;

"Finco Shareholder" means a registered holder of Finco Shares, from time to time, and "Finco Shareholders" means all of such holders;

"Certificate of Amalgamation" means the certificate of amalgamation to be issued by the Director in respect of the Amalgamation;

"Director" means the director appointed under section 278 of the OBCA;

"Effective Date" means the date shown on the Certificate of Amalgamation;

"Effective Time" has the meaning ascribed to it in Section 10;

"Financing" means the private placement offering by Finco of Subscription Receipts for gross proceeds of up to US$40,000,000;

 "Government Authority" means any foreign, national, provincial, local or state government, any political subdivision or any governmental, judicial, public or statutory instrumentality, court, tribunal, commission, board, agency (including those pertaining to health, safety or the environment), authority, body or entity, or other regulatory bureau, authority, body or entity having legal jurisdiction over the activity or Person in question and, for greater certainty, includes the Canadian Securities Exchange;

"OBCA" means the Business Corporations Act (Ontario), as the same has been and may hereafter from time to time be amended;

"Paid-up Capital" means paid-up capital within the meaning of subsection 89(1) of the Income Tax Act (Canada);

"Parties" means Mezzotin, Mezzotin Subco and Finco;

"Person" includes any individual, sole proprietorship, firm, partnership, joint venture, venture capital fund, limited liability company, unlimited liability company, association, trust, trustee, executor, administrator, legal personal representative, estate, group, body corporate, corporation, unincorporated association or organization, union, Government Authority, syndicate or other entity, whether or not having legal status;

 

 

"Mezzotin Shares" means subordinate voting shares in the capital of Mezzotin;

"Subscription Receipts" means the subscription receipts issued by Finco in the Financing, each Subscription Receipt entitling the holder thereof to receive, upon exchange, one Finco Share; and

"Transfer Agent" means Odyssey Trust Company.

In the event of any conflict between the provisions of this Agreement and the provisions of the Business Combination Agreement, the provisions of the Business Combination Agreement shall prevail.

Each of the Parties hereby agrees to the Amalgamation. The Amalgamating Corporations shall amalgamate to create Amalco on the terms and conditions set out in this Agreement.

The Parties shall cause the Articles of Amalgamation to be filed pursuant to section 178 of the OBCA to effect the Amalgamation. Under the Amalgamation:

 

 

In accordance with normal commercial practice, as soon as practicable following the Effective Date, Mezzotin, directly or through the Transfer Agent, shall issue certificates representing the appropriate number of Mezzotin Shares to the former holders of Finco Shares.

From the date hereof to and including the Effective Date, each of Finco and Mezzotin Subco covenants that it will not:

 

 

The Amalgamation is subject to the satisfaction, on or before the Effective Date, of the following conditions precedent, each of which is for the benefit of each of the parties hereto and may be waived by any of the parties hereto at any time, in whole or in part, in its sole discretion without prejudice to any other right that it may have:

A certificate signed by a senior officer of each of Mezzotin, Finco and Mezzotin Subco confirming the satisfaction or waiver of such conditions shall be conclusive evidence that such conditions have been satisfied and that Mezzotin, Finco and Mezzotin Subco may amalgamate in accordance with Section 3 hereof.

No fractional Mezzotin Shares will be issued or delivered to any Finco Shareholders otherwise entitled thereto as a result of the Amalgamation, if any. Instead, the number of Mezzotin Shares issued to each exchanging holder of Finco Shares will be rounded down to the nearest whole number.

If this Agreement is adopted by each of the Amalgamating Corporations as required by the OBCA, the Amalgamating Corporations agree that they will, jointly and together, file with the Director, agreed upon Articles of Amalgamation in the form prescribed under the OBCA.

 

 

The Amalgamation shall take effect and go into operation at 12:01 a.m. on the effective date of the Articles of Amalgamation (the “Effective Time”), if this Agreement has been adopted as required by law and all necessary filings have been made with the Director before that time, or at such later time, or time and date, as may be determined by the directors or by special resolutions of the Amalgamating Corporations when this Agreement shall have been adopted as required by law; provided, however, that if the respective directors of either of the Amalgamating Corporations determine that it is in the best interests of the Amalgamating Corporations, or either of them, or of Amalco, not to proceed with the Amalgamation, then either of the Amalgamating Corporations may, by written notice to the other parties, terminate this Agreement at any time prior to the Amalgamating Corporations being amalgamated, and in such event, the Amalgamation shall not take place notwithstanding the fact that this Agreement may have been adopted by the shareholders of the Amalgamating Corporations.

The registered office of Amalco shall be in the Province of Ontario.

There will be no limitations on the activities of Amalco. The directors of Amalco shall be authorized to borrow money on the credit of Amalco. The articles of Mezzotin Subco shall be the articles of Amalco.

The authorized capital of Amalco shall consist of an unlimited number of common shares without nominal or par value.

The amount to be added to the stated capital in respect of the Amalco Shares issuable by Amalco pursuant to Sections 4(c) and 4(d) of this Agreement shall be the aggregate of: (i) the Paid-up Capital, determined immediately before the Effective Time, of the Mezzotin Subco Shares converted into Amalco Shares pursuant to section 4(c); and (ii) the Paid-up Capital, determined immediately before the Effective Time, of all of the issued and outstanding Finco Shares immediately before the Effective Time (other than any Finco Shares held by Mezzotin Subco, if any).

The board of directors of Amalco shall consist of not less than one and not more than 10 directors, the exact number of which shall be determined by the directors from time to time.

 

 

The first director of Amalco shall be the person whose names and residential addresses appear below:

Name	Prescribed Address
●	●

The above director will hold office from the Effective Date until the first annual meeting of shareholders of Amalco or until their successors are elected or appointed.

This Agreement may be terminated by the board of directors of each of the Amalgamating Corporations, notwithstanding the approval of this Agreement by the shareholders of the Amalgamating Corporations, at any time prior to the issuance of the Certificate of Amalgamation and following the termination of the Business Combination Agreement, without, except as provided in the Business Combination Agreement, any recourse by any Party hereto or any of their shareholders or other Persons.

This Agreement shall be governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein. Each Party hereby irrevocably attorns to the jurisdiction of the courts of the Province of Ontario in respect of all matters arising under or in relation to this Agreement.

Each of the Parties agrees to execute and deliver such further instruments and to do such further reasonable acts and things as may be necessary or appropriate to carry out the intent of this Agreement.

Time shall be of the essence of this Agreement.

This Agreement may only be amended or otherwise modified by written agreement executed by the Parties.

This Agreement may be signed in counterparts (including counterparts by facsimile), and all such signed counterparts, when taken together, shall constitute one and the same agreement, effective on this date.

 

IN WITNESS WHEREOF the Parties have executed this Agreement.

 

2670995 ONTARIO INC.
By:
	Authorized Signatory
2670764 ONTARIO INC.
By:
	Authorized Signatory
MEZZOTIN MINERALS INC.
By:
	Authorized Signatory

 

 

 

SCHEDULE C

SUBORDINATE VOTING SHARE TERMS

 

 

SCHEDULE D

CONVERTIBLE SHARE AND INDUS VOTING COMMON SHARE TERMS

 

 

SEVENTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

INDUS HOLDING COMPANY

Robert Weakley hereby certifies that:

ONE:             He is the duly elected and acting Chief Executive Officer of Indus Holding Company, a Delaware corporation.

TWO:            The date of filing of the original Certificate of Incorporation of this company with the Secretary of State of the State of Delaware was January 2, 2015.

THREE:       The First Amended and Restated Certificate of Incorporation was filed with the Secretary of State of Delaware on February 2, 2015, a Certificate of Amendment was filed with the Secretary of State of Delaware on March 2, 2015, the Second Amended and Restated Certificate of Incorporation was filed with the Secretary of State of Delaware on May 6, 2016, the Third Amended and Restated Certificate of Incorporation was filed with the Secretary of State of Delaware on October 28, 2016, the Fourth Amended and Restated Certificate of Incorporation was filed with the Secretary of State of Delaware on March 14, 2018, the Fifth Amended and Restated Certificate of Incorporation was filed with the Secretary of State of Delaware on June 26, 2018 and the Sixth Amended and Restated Certificate of Incorporation was filed with the Secretary of State of Delaware on October 25, 2018.

The Certificate of Incorporation of this company is hereby further amended and restated to read in its entirety as follows:

I.

The name of this company is Indus Holding Company (the “Company” or the “Corporation”).

II.

The address of the registered office of the Corporation in the State of Delaware is 251 Little Falls Drive, in the City of Wilmington 19808, County of New Castle. The name of its registered agent at such address is Corporation Service Company.

III.

The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the Delaware General Corporation Law (“DGCL”).

 

 

IV.

 

 

 

 

 

 

 

 

 

 

V.

 

 

VI.

For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation, of its directors and of its stockholders or any class thereof, as the case may be, it is further provided that:

* * * *

FOUR:     This Seventh Amended and Restated Certificate of Incorporation has been duly approved by the Board.

FIVE:      This Seventh Amended and Restated Certificate of Incorporation was approved by the holders of the requisite number of shares of said corporation in accordance with Section 228 of the DGCL. This Seventh Amended and Restated Certificate of Incorporation has been duly adopted in accordance with the provisions of Sections 242 and 245 of the DGCL by the stockholders of the Corporation.

 

In Witness Whereof, Indus Holding Company has caused this Seventh Amended and Restated Certificate of Incorporation to be signed by its Chief Executive Officer as of __, 2019.

INDUS HOLDING COMPANY,

a Delaware corporation

 

 

 

 

SCHEDULE E

SUPER VOTING SHARE TERMS

 

 

In the event of a redemption of the Super Voting Shares, the Corporation shall provide two days prior written notice to the holder or holders of such Super Voting Shares and make a payment to the holder of an amount equal to the original purchase price for each Super Voting Share, payable in cash to the holders of the Super Voting Shares so redeemed. The Corporation need not redeem Super Voting Shares on a pro-rata basis among the holders of Super Voting Shares. Holders of Super Voting Shares to be redeemed by the Corporation shall surrender the certificate or certificates representing such Super Voting Shares to the Corporation at its records office duly assigned or endorsed for transfer to the Corporation (or accompanied by duly executed share transfers relating thereto). Each surrendered certificate shall be cancelled, and the Corporation shall thereafter make payment of the applicable redemption amount by certified cheque, bank draft or wire transfer to the registered holder of such certificate; provided that, if less than all the Super Voting Shares represented by a surrendered certificate are redeemed then a new share certificate representing the unredeemed balance of Super Voting Shares represented by such certificate shall be issued in the name of the applicable registered holder of the cancelled share certificate. If on the applicable redemption date the redemption price is paid (or tendered for payment) for any of the Super Voting Shares to be redeemed then on such date all rights of the holder in the Super Voting Shares so redeemed and paid or tendered shall cease and such redeemed Super Voting Shares shall no longer be deemed issued and outstanding, regardless of whether or not the holder of such Super Voting Shares has delivered the certificate(s) representing such securities to the Corporation, and from and after such date the certificate formerly representing the retracted Super Voting Shares shall evidence only the right of the former holder of such Super Voting Shares to receive the redemption price to which such holder is entitled.