UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date
of earliest event reported): August 14, 2023
ELECTRAMECCANICA
VEHICLES CORP.
(Exact name of registrant as specified in its charter)
British Columbia, Canada |
001-38612 |
98-1485035 |
(State or other jurisdiction
of incorporation) |
(Commission
File Number) |
(IRS Employer
Identification No.) |
6060
Silver Drive
Third
Floor
Burnaby,
British
Columbia, Canada |
|
V5H 0H5 |
(Address of principal executive offices) |
|
(Zip Code) |
Registrant’s telephone number, including area code: (604)
428-7656
Not applicable.
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
| ¨ | Written communications pursuant
to Rule 425 under the Securities Act (17 CFR 230.425) |
| x | Soliciting material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class |
Trading Symbol (s) |
Name of each exchange on which registered |
Common
Shares, no par value |
SOLO |
The
Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| Item 1.01 | Entry into a Material Definitive Agreement. |
Arrangement Agreement
On
August 14, 2023, ElectraMeccanica Vehicles Corp., a company existing under the laws of the Province of British Columbia (“ElectraMeccanica”
or the “Company”), Tevva Motors Limited, a company registered in England and Wales (“Tevva”), 1432952 B.C.
Ltd., a company existing under the laws of the Province of British Columbia (“Holdco”),
and 1432957 B.C. Ltd., a company existing under the laws of the Province of British Columbia
(“Parentco”), entered into an Arrangement Agreement (the “Arrangement Agreement”), pursuant to which ElectraMeccanica
and Tevva will combine by way of a statutory plan of arrangement (the “Plan of Arrangement”) under the Business Corporations
Act (British Columbia) (the “Arrangement”).
Pursuant to the Arrangement Agreement
and the Plan of Arrangement, (i) Holdco will purchase, and shareholders of Tevva will sell, all of the issued and outstanding shares of
Tevva (the “Tevva Shares”) in consideration for shares of Holdco (the “Holdco Transfer”), following which (ii)
(A) Holdco and Parentco will amalgamate to form the resulting issuer (the “Resulting Issuer”), (B) shareholders of ElectraMeccanica
will transfer their shares of ElectraMeccanica (excluding any shares transferred from a dissenting shareholder, the “ElectraMeccanica
Shares”), free and clear of all liens, to the Resulting Issuer, and in consideration for such transfer, such ElectraMeccanica shareholders
will be issued shares of the Resulting Issuer (the “Resulting Issuer Shares”), and (C) the Resulting Issuer will redomicile
to the United States as a Delaware corporation pursuant to Section 388 of the Delaware General Corporation Law and will operate as Tevva,
Inc.
Following the Arrangement, the
Resulting Issuer will manage and hold the combined business of ElectraMeccanica and Tevva and will own all of the issued and outstanding
ElectraMeccanica Shares and Tevva Shares.
Consideration
Upon completion of the Arrangement,
the Resulting Issuer is expected to be owned approximately 23.5% by former ElectraMeccanica securityholders and 76.5% by former Tevva
securityholders on a fully diluted basis. The exact number of Resulting Issuer Shares to be issued to ElectraMeccanica shareholders and
Tevva shareholders will be determined before the closing of the Arrangement.
At the effective time of the
Arrangement, (i) all ElectraMeccanica deferred share units, ElectraMeccanica performance share units and ElectraMeccanica restricted share
units, whether vested or unvested, shall immediately vest and shall be settled by ElectraMeccanica in exchange for one ElectraMeccanica
Share each; (ii) all ElectraMeccanica in-the-money options, whether vested or unvested, shall be exercised in exchange for a number of
shares ElectraMeccanica Shares equal to the in-the-money value of such options; and (iii) all ElectraMeccanica options out-of-the-money
will be cancelled.
Each of the warrants to acquire
ElectraMeccanica Shares that are outstanding immediately prior to the Arrangement will remain exercisable, in accordance with the terms
of such warrants, for the number of Resulting Issuer Shares that the holder of such warrants would have been entitled to receive as a
result of the transactions contemplated by the Arrangement if, immediately prior to the Arrangement, such holder had been the holder of
the number of ElectraMeccanica Shares to which such holder would have been entitled if such holder had exercised its warrants immediately
prior to the completion of the Arrangement.
Conditions to the Arrangement
The Arrangement Agreement contains
a number of conditions to the completion of the Arrangement, including, but not limited to, (a) obtaining the required approvals of ElectraMeccanica’s
and Tevva’s shareholders, (b) obtaining the approval of the Supreme Court of British Columbia of the terms and conditions of the
Arrangement, (c) obtaining conditional approval for the Resulting Issuer Shares to be listed on the Nasdaq stock exchange, (d) the absence
of any injunction or similar restraint prohibiting or making illegal the consummation of the Arrangement or any of the other transactions
contemplated by the Arrangement Agreement, (e) the required regulatory approvals having been obtained, (f) subject to certain materiality
exceptions, the accuracy of the representations and warranties of each party, (g) the performance in all material respects by each party
of its obligations under the Arrangement Agreement, (h) no material adverse effect having occurred, (i) all key consents being obtained
and (j) no proceeding being pending or threatened against either party that would prevent or materially delay the consummation of the
Arrangement.
Certain Other Terms of the
Arrangement Agreement
The Arrangement Agreement provides
for customary non-solicitation covenants, subject to the right of the board of directors of ElectraMeccanica (the “ElectraMeccanica
Board”) to consider an acquisition proposal and a right to change their recommendation and accept a superior proposal and the right
of Tevva to match any such proposal within five business days.
In addition, ElectraMeccanica
may terminate the Arrangement Agreement prior to approval of the ElectraMeccanica shareholders of the Arrangement if the ElectraMeccanica
Board authorizes ElectraMeccanica to enter into a definitive agreement providing for the implementation of a superior proposal. Either
ElectraMeccanica or Tevva may terminate the Arrangement Agreement if there is a change in the counterparty’s Board recommendation
that the shareholders approve the Arrangement. The Arrangement Agreement may also be terminated by the other party if ElectraMeccanica
shareholders or Tevva shareholders do not approve the transaction, by the mutual written agreement of ElectraMeccanica and Tevva and in
other customary circumstances.
The Arrangement Agreement provides
further that a termination fee will be payable by ElectraMeccanica or Tevva, as the case may be, upon termination of the Arrangement Agreement
under specified circumstances, including: (i) a material breach by the other party of the non-solicitation covenants; (ii) if the effective
time of the Arrangement does not occur on or prior to January 31, 2024 if: (a) prior to such termination, an acquisition proposal meeting
certain requirements has been publicly announced or otherwise communicated to ElectraMeccanica or Tevva, as the case may be, and (b) within
12 months of the date of such termination, an acquisition proposal transaction is agreed or completed by ElectraMeccanica or Tevva, as
the case may be; or (iii) in the event of an adoption of a superior proposal by the ElectraMeccanica Board or by a change in the recommendation
of the ElectraMeccanica Board or the board of directors of Tevva (the “Tevva Board”) and the approval for the transaction
of ElectraMeccanica shareholders or Tevva shareholders, as applicable, is not obtained.
In the event such termination
fee is payable by ElectraMeccanica or Tevva, as the case may be, ElectraMeccanica will be required to pay Tevva or Tevva will be required
to pay ElectraMeccanica a termination fee of $6,000,000.
Upon completion of the Arrangement,
it is anticipated that Susan Docherty, who currently serves as Chief Executive Officer and Interim Chief Operating Officer of ElectraMeccanica,
will be named Chief Executive Officer of the Resulting Issuer, and David Roberts, who currently serves as a member of the Tevva Board,
will become Executive Chairman of the Resulting Issuer.
The foregoing description of
the Arrangement Agreement is not intended to be complete and is qualified in its entirety by reference to the full text of the Arrangement
Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K (“Current Report”) and is incorporated herein
by reference.
Support Agreements
Simultaneously with the execution
of the Arrangement Agreement, Tevva has entered into voting support and lock-up agreements with certain holders of ElectraMeccanica Shares,
including all executive officers and directors of ElectraMeccanica, representing approximately 7.89% of ElectraMeccanica’s current
shares outstanding (the “ElectraMeccanica Support Agreement Shareholders”), pursuant to which the ElectraMeccanica Support
Agreement Shareholders have agreed, among other things, to vote their ElectraMeccanica Shares in favor of adopting the Arrangement Agreement
and, subject to certain exceptions where the trading volume or the market value of the Resulting Issuer Shares achieve certain thresholds
and certain customary exceptions, not to dispose of their Resulting Issuer Shares for a specified period of time following the Arrangement
(the “ElectraMeccanica Support Agreements”).
Also simultaneously with the
execution of the Arrangement Agreement, ElectraMeccanica and certain holders of Tevva Shares representing approximately 49% of Tevva’s
current shares outstanding (the “Tevva Support Agreement Shareholders”) have entered into voting support and lock-up agreements
(the “Tevva Support Agreements”), pursuant to which the Tevva Support Agreement Shareholders agreed, among other things, to
complete the Holdco Transfer, to vote their Tevva Shares in favor of the adoption of the Arrangement Agreement and subject to customary
exceptions, not to dispose of their Resulting Issuer Shares for a specified period of time following the Arrangement.
The ElectraMeccanica Support
Agreements and the Tevva Support Agreements terminate upon the occurrence of certain events, including the termination of the Arrangement
Agreement in accordance with its terms.
The foregoing description of
the ElectraMeccanica Support Agreements and the Tevva Support Agreements is not intended to be complete and is qualified in its entirety
by reference to the full text of the form of ElectraMeccanica Support Agreement and the form of Tevva Support Agreement, which are filed
as Exhibits 10.1 and 10.2, respectively, to this Current Report and are incorporated herein by reference.
Working Capital Facility Agreement
In connection with the Arrangement
Agreement, on August 14, 2023, ElectraMeccanica and Tevva entered into a facility letter (the “Facility Letter”), pursuant
to which ElectraMeccanica has agreed to make available to Tevva a term loan facility of up to an aggregate of $6,000,000 (the “Working
Capital Facility”). Drawdown of the Working Capital Facility is conditional on (a) Tevva granting to ElectraMeccanica an all assets
debenture (“Debenture”) securing Tevva’s obligations under the Working Capital Facility, which is to rank pari passu
with Tevva’s existing security pursuant to the terms of a deed of priority to be entered into among Tevva, ElectraMeccanica and
Tevva’s other secured lenders and (b) Tevva obtaining certain approvals from existing lenders regarding the Working Capital Facility
and Debenture. These conditions must be satisfied no later than 20 business days following the date of the Facility Letter (or such other
date as may be agreed), after which the offer of the Working Capital Facility will lapse. The total amount to be advanced under the Working
Capital Facility includes $1,000,000 of funds that have already been provided by ElectraMeccanica to Tevva in connection with the letter
of intent previously entered into by the parties, which will be governed by the terms of the Working Capital Facility. Subject to the
satisfaction of the abovementioned conditions, the remaining $5,000,000 will be available for advances and can be drawn down by Tevva
in up to three tranches of a minimum $1,000,000 each. Borrowings by Tevva under the Working Capital Facility are required to be used solely
for working capital purposes and may not be used to repay existing debt or to fund distributions to stockholders. Interest on the Working
Capital Facility accrues at 8% per annum, provided that such interest will not accrue depending on, among other things, the timing of
the closing of the Arrangement.
Borrowings under the Working
Capital Facility, including any accrued interest, are repayable on the earliest of (a) July 1, 2024, (b) the closing of the Arrangement
and (c) 90 days after the Arrangement Agreement is terminated for any reason, and may be repaid early without premium or penalty. The
terms of the Working Capital Facility also include customary warranties, events of default provisions and a negative pledge.
Tevva has up to 15 business days
from the satisfaction of the abovementioned condition precedents to avail itself of the Working Capital Facility.
The foregoing description of
the Facility Letter is not intended to be complete and is qualified in its entirety by reference to the full text of the Facility Letter,
which is filed as Exhibit 10.3 to this Current Report and is incorporated herein by reference.
| Item 7.01 | Regulation FD Disclosure. |
On August 15, 2023, the Company issued a press release to announce,
among other things, the Arrangement Agreement and certain matters related thereto. A copy
of the press release is attached hereto as Exhibit 99.1 to this Current Report and is incorporated
herein by reference.
The information in this Item 7.01, including Exhibit 99.1 attached
hereto, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference into any filing
or other document pursuant to the Securities Act of 1933, as amended, or the Exchange Act, regardless of any general incorporation language
in such filing, except as shall be expressly set forth by specific reference in such a filing or document.
Additional Information and Where to Find It
In connection with the proposed transaction, ElectraMeccanica intends
to file with the SEC a preliminary and definitive proxy statement and management information circular (the “Circulars”) relating
to the proposed transaction and other relevant documents. The definitive Circular will be mailed to ElectraMeccanica’s shareholders
as of a record date to be established for voting on the proposed transaction and any other matters to be voted on at the special meeting.
BEFORE MAKING ANY VOTING DECISION, INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE PRELIMINARY AND DEFINITIVE CIRCULARS, ANY AMENDMENTS
OR SUPPLEMENTS THERETO AND ANY OTHER DOCUMENTS TO BE FILED WITH THE SEC IN CONNECTION WITH THE PROPOSED TRANSACTION OR INCORPORATED BY
REFERENCE IN THE CIRCULARS WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT ELECTRAMECCANICA, TEVVA AND
THE PROPOSED TRANSACTION. Investors and security holders may obtain free copies of these documents (when they are available) on the SEC’s
website at www.sec.gov, on the Canadian Securities Administrators website at www.sedar.com, on ElectraMeccanica’s website at https://ir.emvauto.com/
or by contacting ElectraMeccanica’s Investor Relations via email at IR@emvauto.com.
Participants in the Solicitation
ElectraMeccanica and its directors and certain of its executive officers
may be deemed participants in the solicitation of proxies from the shareholders of ElectraMeccanica in connection with the proposed transaction
and any other matters to be voted on at the special meeting. Information regarding the names, affiliations and interests of such directors
and executive officers will be included in the preliminary and definitive Circulars (when available). Additional information regarding
such directors and executive officers is included in ElectraMeccanica’s Annual Report on Form 10-K for the year ended December 31,
2022, which was filed with the SEC on April 17, 2023. Information regarding the persons who may, under SEC rules, be deemed participants
in the solicitation of proxies of ElectraMeccanica’s shareholders in connection with the proposed transaction and any other matters
to be voted upon at the special meeting will be set forth in the preliminary and definitive Circulars (when available).
These documents will be available free of charge as described in the
preceding paragraph.
Cautionary Note Regarding Forward-Looking Statements
This Current Report and the accompanying exhibits include “forward-looking
statements” within the meaning of U.S. federal securities laws and applicable Canadian securities laws. Forward-looking statements
may be identified by words or expressions such as “expects,” “anticipates,” “intends,” “plans,”
“believes,” “estimates,” “may,” “will,” “projects,” “could,” “should,”
“would,” “seek,” “forecast,” or other similar expressions. Forward-looking statements represent current
judgments about possible future events, including, but not limited to statements regarding expectations or forecasts of business, operations,
financial performance, prospects, and other plans, intentions, expectations, estimates, and beliefs relating to the proposed transaction
between ElectraMeccanica and Tevva, such as statements regarding the combined operations and prospects of ElectraMeccanica and Tevva,
the current and projected market, growth opportunities and synergies for the Resulting Issuer, targets for 2028 revenue and EBITDA margins,
geographic expansion plans, expectations and intentions with respect to the Working Capital Facility, the expected composition of the
management and board of directors of the Resulting Issuer, the expected trading of the Resulting Issuer on The Nasdaq Capital Market,
and the timing and completion of the proposed transaction, including the satisfaction or waiver of all the required conditions thereto.
These forward-looking statements are based upon the current beliefs and expectations of the management of ElectraMeccanica and Tevva and
are subject to known and unknown risks and uncertainties. Factors that could cause actual events to differ include, but are not limited
to:
| · | the ability of the Resulting Issuer to further penetrate the U.K. and EU markets, and start operations in the U.S. market with Tevva’s
commercial vehicles without having any prior experience selling Tevva’s vehicles in the U.S. market; |
| · | the total addressable market of ElectraMeccanica, Tevva and of the combined business; |
| · | general economic conditions in the markets where ElectraMeccanica and Tevva operate and where the Resulting Issuer will operate; |
| · | the expected timing of regulatory approvals relating to the proposed transaction, the businesses of ElectraMeccanica and Tevva and
of the Resulting Issuer and product launches of such businesses and companies; |
| · | non-performance of third-party vendors and contractors; |
| · | risks related to the Resulting Issuer’s ability to successfully sell its products and the market reception to and performance
of its products; |
| · | ElectraMeccanica’s and the Resulting Issuer’s compliance with, and changes to, applicable laws and regulations; |
| · | ElectraMeccanica’s and the Resulting Issuer’s limited operating history; |
| · | the Resulting Issuer’s ability to manage growth; |
| · | the Resulting Issuer’s ability to obtain additional financing; |
| · | the Resulting Issuer’s ability to expand product offerings; |
| · | the Resulting Issuer’s ability to compete with others in its industry; |
| · | the Resulting Issuer’s ability to protect our intellectual property; |
| · | ElectraMeccanica’s and the Resulting Issuer’s ability to list the common stock of the Resulting Issuer on Nasdaq; |
| · | ElectraMeccanica’s and the Resulting Issuer’s ability to defend against legal proceedings; |
| · | the Resulting Issuer’s success in retaining or recruiting, or changes required in, our officers, key employees or directors; |
| · | the ability to successfully integrate the businesses of ElectraMeccanica and Tevva after the completion of the proposed transaction; |
| · | the Resulting Issuer’s ability to achieve the expected benefits from the proposed transaction within the expected time frames
or at all; |
| · | the incurrence of unexpected costs, liabilities or delays relating to the proposed transaction; |
| · | the risk that if the proposed transaction does not close that Tevva is unable to repay the $6 million credit facility provided by
ElectraMeccanica; |
| · | the risk that the proposed transaction may not be accretive to ElectraMeccanica’s shareholders; and |
| · | other economic, business, competitive, and regulatory factors affecting the businesses of the companies generally, including but not
limited to those set forth in ElectraMeccanica’s filings with the SEC, including in the “Risk Factors” section of ElectraMeccanica’s
Annual Report on Form 10-K filed with the SEC on April 17, 2023, and its subsequent SEC filings. |
Readers are cautioned not to place undue reliance on forward-looking
statements. It is uncertain whether any of the events anticipated by the forward-looking statements will transpire or occur, or if any
of them do, what impact they will have on the results of operations and financial condition of ElectraMeccanica or the Resulting Issuer.
Forward-looking statements speak only as of the date they are made, and ElectraMeccanica and the Resulting Issuer undertake no obligation
to update publicly or otherwise revise any forward-looking statements, whether as a result of new information, future events, or other
factors that affect the subject of these statements, except where they are expressly required to do so by law.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
Exhibit | |
|
Number | |
Description |
2.1 | |
Arrangement Agreement, dated August 14, 2023, by and among ElectraMeccanica Vehicles Corp., Tevva Motors Limited, 1432952 B.C. Ltd. and 1432957 B.C. Ltd. |
10.1 | |
Form of Voting Support and Lock-Up Agreement for ElectraMeccanica Shareholders |
10.2 | |
Form of Voting Support and Lock-Up Agreement for Tevva Shareholders |
10.3 | |
Facility Letter, dated August 14, 2023, by and between ElectraMeccanica Vehicles Corp. and Tevva Motors Limited |
99.1 | |
Press Release, dated August 15, 2023 |
104 | |
Cover Page Interactive Data File (cover page XBRL tags are embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: August 15, 2023 |
ELECTRAMECCANICA VEHICLES CORP. |
|
|
|
|
By: |
/s/ Michael Bridge |
|
|
Michael Bridge |
|
|
General Counsel and Corporate Secretary |
Exhibit 2.1
ELECTRAMECCANICA VEHICLES CORP.
and
TEVVA MOTORS LIMITED
and
1432952 B.C. LTD.
and
1432957 B.C. LTD.
ARRANGEMENT AGREEMENT
August 14,
2023
|
Table of Contents
Page
Article 1 – INTERPRETATION |
2 |
1.01 |
Defined Terms. |
2 |
1.02 |
Interpretation |
19 |
1.03 |
Computation of Time |
20 |
1.04 |
Currency |
21 |
1.05 |
Accounting Matters |
21 |
1.06 |
Knowledge |
21 |
1.07 |
Schedules |
21 |
1.08 |
Disclosure Letters |
21 |
Article 2 – THE
ARRANGEMENT |
21 |
2.01 |
Arrangement |
21 |
2.02 |
Interim Order |
21 |
2.03 |
EMV Meeting |
23 |
2.04 |
EMV Circular |
24 |
2.05 |
Tevva Meeting |
26 |
2.06 |
Tevva Circular |
27 |
2.07 |
Holdco and Parentco Shareholder Approval |
28 |
2.08 |
Final Order |
28 |
2.09 |
Court Proceedings |
29 |
2.10 |
Arrangement and Effective Date |
29 |
2.11 |
Withholding Taxes |
30 |
2.12 |
Tax Matters |
30 |
2.13 |
Issue of Resulting Issuer Shares |
30 |
2.14 |
U.S. Securities Law Matters |
31 |
2.15 |
Adjustment of Consideration |
32 |
2.16 |
Incentive Plan Matters |
32 |
2.17 |
EMV Warrants |
33 |
Article 3 – REPRESENTATIONS
AND WARRANTIES |
33 |
3.01 |
Representations and Warranties of EMV |
33 |
3.02 |
Representations and Warranties of Tevva |
33 |
3.03 |
Representations and Warranties of Holdco |
34 |
3.04 |
Representations and Warranties of Parentco |
34 |
Article 4 – COVENANTS |
34 |
4.01 |
Conduct of Business of EMV |
34 |
4.02 |
Conduct of Business of Tevva |
38 |
4.03 |
Mutual Covenants |
42 |
4.04 |
Additional Covenants of EMV Regarding the Arrangement |
45 |
4.05 |
Additional Covenants of Tevva Regarding the Arrangement |
46 |
4.06 |
Financing Assistance |
47 |
4.07 |
Access to Information; Confidentiality |
48 |
4.08 |
Notice and Cure Provisions |
49 |
4.09 |
Insurance and Indemnification |
50 |
4.10 |
Holdco Share Transfer |
50 |
Article 5 – ADDITIONAL
COVENANTS REGARDING EMV NON-SOLICITATION |
51 |
5.01 |
EMV Non-Solicitation |
51 |
5.02 |
Notification of EMV Acquisition Proposals |
53 |
5.03 |
Responding to an EMV Acquisition Proposal |
53 |
5.04 |
Tevva Right to Match |
54 |
5.05 |
Breach by Subsidiaries and Representatives |
56 |
Article 6 – ADDITIONAL
COVENANTS REGARdING Tevva NON-SOLICITATION |
57 |
6.01 |
Tevva Non-Solicitation |
57 |
6.02 |
Notification of Tevva Acquisition Proposals |
58 |
6.03 |
Breach by Subsidiaries and Representatives |
58 |
Article 7 – CONDITIONS |
58 |
7.01 |
Mutual Conditions Precedent |
58 |
7.02 |
Additional Conditions Precedent to the Obligations of Tevva |
60 |
7.03 |
Additional Conditions Precedent to the Obligations of EMV |
61 |
7.04 |
Satisfaction of Conditions |
62 |
Article 8 – TERMINATION |
63 |
8.01 |
Termination |
63 |
8.02 |
Effect of Termination |
64 |
8.03 |
EMV Obligation to Pay EMV Termination Amount |
64 |
8.04 |
Tevva Obligation to Pay Tevva Termination Amount |
66 |
Article 9 – GENERAL
PROVISIONS |
67 |
9.01 |
Expenses |
67 |
9.02 |
Amendments |
68 |
9.03 |
Notices |
68 |
9.04 |
Time of the Essence |
70 |
9.05 |
Injunctive Relief |
70 |
9.06 |
Third Party Beneficiaries |
70 |
9.07 |
Waiver |
70 |
9.08 |
Entire Agreement |
70 |
9.09 |
Successors and Assigns |
71 |
9.10 |
Severability |
71 |
9.11 |
Governing law |
71 |
9.12 |
Rules of Construction |
71 |
9.13 |
No Liability |
71 |
9.14 |
Counterparts |
71 |
Schedule A – EMV Arrangement
Resolution |
A-1 |
Schedule B – TEVVA transaction Resolutions |
B-1 |
Schedule C – Holdco Arrangement Resolution |
C-1 |
Schedule D – Parentco Arrangement Resolution |
D-1 |
Schedule E – Plan of Arrangement |
E-1 |
Schedule F – Representations and Warranties
of EMV |
F-1 |
Schedule G – Representations and Warranties
of Tevva |
G-1 |
Schedule H – Representations and Warranties
of Holdco |
H-1 |
Schedule I – Representations
and Warranties of Parentco |
I-1 |
ARRANGEMENT AGREEMENT
THIS AGREEMENT is made as of August 14, 2023,
BETWEEN
ELECTRAMECCANICA VEHICLES CORP., a corporation
existing under the laws of the Province of British Columbia,
(“EMV”)
AND
TEVVA MOTORS LIMITED, a company registered
in England and Wales with company number 08368694,
(“Tevva”)
AND
1432952 B.C. LTD., a corporation existing
under the laws of the Province of British Columbia,
(“Holdco”)
AND
1432957 B.C. LTD., a corporation existing
under the laws of the Province of British Columbia
(“Parentco”).
RECITALS:
| A. | EMV and
Tevva desire to combine and form the Resulting Issuer (as defined herein) to carry on the
businesses of each of EMV and Tevva upon the completion of the transactions contemplated
by this Agreement. |
| B. | The Parties
desire to consummate the business combination contemplated by this Agreement by way of the
Plan of Arrangement (as defined herein) pursuant to the BCBCA (as defined herein), immediately
following which on a fully-diluted basis (i) EMV Securityholders (as defined herein) will
collectively hold or be entitled to hold approximately 23.5% of the issued and outstanding
share capital of the Resulting Issuer (as defined herein) and Tevva Securityholders (as defined
herein) will collectively hold or be entitled to hold approximately 76.5% of the issued and
outstanding share capital of the Resulting Issuer. |
| C. | Holdco
and Parentco have each been incorporated under the laws of British Columbia for the purposes
of facilitating the transactions contemplated in this Agreement and the Plan of Arrangement.
Parentco is a wholly-owned Subsidiary (as defined herein) of Holdco. |
| D. | The EMV
Board (as defined herein), after receiving financial and legal advice, has (i) determined
that the transactions contemplated by this Agreement are in the best interests of EMV and
EMV Shareholders (as defined herein), (ii) approved this Agreement and the transactions contemplated
hereby, and (iii) resolved to recommend that EMV Shareholders vote in favour of the EMV Arrangement
Resolution (as defined herein), all subject to the terms and conditions of this Agreement. |
| E. | The Tevva
Board (as defined herein), after receiving financial and legal advice, has (i) determined
that the transactions contemplated by this Agreement are in the best interests of Tevva and
Tevva Shareholders (as defined herein), (ii) approved this Agreement and the transactions
contemplated hereby, and (iii) resolved to recommend that Tevva Ordinary Shareholders vote
in favour of the Tevva Transaction Resolutions (as defined herein), all subject to the terms
and conditions of this Agreement. |
| F. | EMV has
entered into the Tevva Voting Support Agreements (as defined herein) with the Tevva Locked-Up
Shareholders (as defined herein), pursuant to which, among other things, such shareholders
have agreed, subject to the terms and conditions thereof, to vote their Tevva Ordinary Shares
(as defined herein) in favour of the Tevva Transaction Resolutions. |
| G. | Tevva has
entered into the EMV Voting Support Agreements (as defined herein) with the EMV Locked-Up
Shareholders (as defined herein), pursuant to which, among other things, such shareholders
have agreed, subject to the terms and conditions thereof, to vote their EMV Shares (as defined
herein) in favour of the EMV Arrangement Resolution. |
| H. | The Arrangement
(as defined herein) provided for in the Plan of Arrangement will be carried out with the
intention that all Resulting Issuer Shares (as defined herein) issued under the Arrangement
will be issued by the Resulting Issuer in reliance on the exemption from the registration
requirements of the U.S. Securities Act (as defined herein) provided by Section 3(a)(10)
thereunder. |
| I. | Concurrent
with the execution of this Agreement, EMV has agreed to provide Tevva with a secured loan
facility in an aggregate principal amount of $6,000,000 pursuant to the terms of a facility
agreement dated on or around the date of this Agreement between EMV (as lender) and Tevva
(as borrower) (the “Facility Agreement”). The Facility (as defined in
the Facility Agreement) includes the refundable deposit in the amount of $1,000,000 paid
by EMV to Tevva pursuant to the non-binding letter of intent entered into between EMV and
Tevva, dated June 28, 2023, which EMV and Tevva have agreed under the Facility Agreement
will be treated in all respects as being part of the Facility. |
NOW THEREFORE, in consideration of the
covenants and agreements herein contained, the Parties agree as follows:
Article 1
–
INTERPRETATION
As used in this Agreement, the following terms have the
following meanings:
“AEML” has the meaning specified
in Section (h)(ii) of Schedule G;
“affiliate” has the meaning
specified in National Instrument 45-106 – Prospectus Exemptions;
“Agreement” means this arrangement
agreement together with the Schedules attached hereto and the EMV Disclosure Letter and Tevva Disclosure Letter, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with the provisions hereof;
“Amendment” means the amendments
to be made to Tevva’s articles of association pursuant to Part B of the Tevva Transaction Resolutions;
“Arrangement” means an arrangement
under Division 5 of Part 9 of the BCBCA on the terms and subject to the conditions set out in the Plan of Arrangement, subject to any
amendments or variations to the Plan of Arrangement made in accordance with the terms of this Agreement and the Plan of Arrangement or
made at the direction of the Court in the Final Order;
“Authorization” means, with
respect to any person, any order, permit, approval, consent, waiver, licence or similar authorization of any Governmental Entity having
jurisdiction over the person;
“BCBCA” means the Business
Corporations Act (British Columbia);
“Breaching Party” has the
meaning specified in Section 4.08(c);
“Business Day” means any day
of the year, other than a Saturday, Sunday or any day on which major banks are closed for business in London, England, Phoenix, Arizona
or Vancouver, British Columbia;
“CA 2006” the Companies Act
2006 (United Kingdom);
“CASL” means An Act to
promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic
means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition
Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act;
“Confidentiality Agreement”
means the non-disclosure agreement dated April 10, 2023 between EMV and Tevva;
“Consents” has the meaning
specified in Section (ii)(i) of Schedule G;
“Consideration” means, in
respect of the consideration to be received by:
| (a) | EMV Shareholders (other than EMV Shareholders
that have validly exercised Dissent Rights), the Resulting Issuer Shares to be issued to
EMV Shareholders upon the transfer to the Resulting Issuer of the EMV Shares pursuant to
the Plan of Arrangement; and |
| (b) | Tevva Shareholders, the Resulting Issuer
Shares to be issued to Tevva Ordinary Shareholders following the amalgamation of Holdco and
Parentco to form the Resulting Issuer pursuant to the Plan of Arrangement. |
“Constating Documents” means
notices of articles, articles, articles of incorporation, association, amalgamation, or continuation, as applicable, by-laws, limited
partnership agreements, shareholders’ agreements or other organizational or constating documents;
“Contract” means, with respect
to any person, any legally binding agreement, commitment, engagement, contract, franchise, licence, obligation or undertaking (written
or oral) to which such person or any of its Subsidiaries is a party or by which it or any of its Subsidiaries is bound or affected or
to which any of their respective properties or assets is subject;
“Court” means the Supreme
Court of British Columbia or other court of competent jurisdiction, as applicable;
“Depositary” means Computershare
Trust Company of Canada or any other depositary or trust company, bank or financial institution agreed to between Tevva and EMV, each
acting reasonably, for the purpose of, among other things, exchanging certificates representing EMV Shares for the Consideration in connection
with the Arrangement;
“DGCL” means the General Corporation
Law of the State of Delaware;
“Dissent Rights” means, in
respect of the EMV Shareholders, the rights of dissent in respect of the Arrangement described in the Plan of Arrangement and the Interim
Order;
“Effective Date” has the meaning
ascribed thereto in the Plan of Arrangement;
“Effective Time” has the meaning
ascribed thereto in the Plan of Arrangement;
“EMV” has the meaning specified
in the preamble;
“EMV Acquisition Proposal”
means, other than (x) the transactions contemplated by this Agreement, (y) any transaction involving only EMV and one or more of its
wholly-owned Subsidiaries and (z) any transaction involving the sale of any or all of the EMV Solo Business, any offer, proposal or inquiry
(written or oral) from any person or group of persons other than Tevva (or any affiliate or Subsidiary of Tevva) after the date of this
Agreement, whether or not delivered to the EMV Shareholders, relating to:
| (a) | any sale or disposition (or any long-term
licensing agreement or other arrangement having the same economic effect as a sale), direct
or indirect, of assets representing 20% or more of the consolidated assets or contributing
20% or more of the consolidated revenue of EMV and its Subsidiaries or of 20% or more of
the voting or equity securities of EMV or any of its Subsidiaries (or rights or interests
in such voting or equity securities) whose assets, individually or in aggregate represent
20% or more of the consolidated assets of EMV and its Subsidiaries; |
| (b) | any take-over bid, exchange offer or other
transaction that, if consummated, would result in such person or group of persons beneficially
owning or having the right to acquire 20% or more of any class of voting or equity securities
of EMV on a partially diluted basis; |
| (c) | any plan of arrangement, merger, amalgamation,
consolidation, share exchange, business combination, reorganization, recapitalization, liquidation,
dissolution, winding up or exclusive license involving EMV or any of its Subsidiaries; or |
| (d) | any other similar transaction or series
of transactions involving EMV or any of its Subsidiaries; |
“EMV Arrangement Resolution”
means the special resolution of the EMV Shareholders approving the Arrangement and the transactions contemplated hereby to be considered
at the EMV Meeting, substantially in the form of Schedule A;
“EMV Balance Sheet” has the
meaning specified in Section (l) of Schedule F;
“EMV Board” means the board
of directors of EMV as constituted from time to time;
“EMV Board Recommendation”
has the meaning specified in Section 2.04(b)(iii);
“EMV Change in Recommendation”
occurs or is made when:
| (a) | the EMV Board or any committee thereof
fails to publicly recommend the EMV Board Recommendation; |
| (b) | the EMV Board or any committee thereof
withdraws, amends, modifies or qualifies the EMV Board Recommendation in a manner adverse
to Tevva, or fails to publicly reaffirm (without qualification) the EMV Board Recommendation
within five Business Days (and in any case prior to the EMV Meeting) after having been requested
in writing by Tevva to do so; |
| (c) | the EMV Board or any committee thereof
takes no position or a neutral position with respect to an EMV Acquisition Proposal for more
than five Business Days after first learning of such EMV Acquisition Proposal (or if the
EMV Meeting is scheduled to occur within such five Business Day period, prior to the Business
Day before the EMV Meeting); |
| (d) | the EMV Board or any committee thereof
takes any other action that is or becomes disclosed publicly and which can reasonably be
interpreted to indicate that the EMV Board or a committee thereof does not (i) support this
Agreement or any of the transactions contemplated hereby or (ii) believe that this Agreement
and the transactions contemplated hereby are in the best interests of the EMV Shareholders;
or |
| (e) | the EMV Board or any committee thereof
resolves or proposes to take any of the foregoing actions; |
“EMV Circular” means the notice
of the EMV Meeting and accompanying management information circular, including all schedules, appendices and exhibits thereto and all
information incorporated by reference therein, to be sent to EMV Shareholders in connection with the EMV Meeting, together with any other
proxy statement which may be prepared in connection with the EMV Meeting, each as amended, supplemented or otherwise modified from time
to time in accordance with the terms of this Agreement and applicable law;
“EMV Data” means any and all
information, including Personal Information, collected or otherwise controlled by EMV or its Subsidiaries about EMV’s or any of
its Subsidiaries’ business, customers, independent contractors, temporary workers, EMV Employees or any other person;
“EMV Dilutive Securities”
means, collectively, the EMV Options, the EMV RSUs, the EMV PSUs, the EMV DSUs and the EMV Warrants;
“EMV Disclosure Letter” means
the disclosure letter executed by EMV and delivered to and accepted by Tevva as of the date of this Agreement;
“EMV DSUs” means the outstanding
deferred share units issued pursuant to the EMV Incentive Plan;
“EMV Employee Plan” has the
meaning specified in Section (v)(xv) of Schedule F;
“EMV Employees” means the
employees of EMV and its Subsidiaries;
“EMV Fairness Opinion” means
the opinion of the EMV Financial Advisor to the effect that, as of the date of such opinion based on and subject to the assumptions,
limitations and qualifications set forth therein, the Consideration to be received by the EMV Shareholders pursuant to the Arrangement
is fair, from a financial point of view, to the EMV Shareholders;
“EMV Financial Advisor” means
Greenhill & Co. Canada Ltd., financial advisor to the EMV Board;
“EMV Financial Statements”
means EMV’s audited consolidated financial statements as at and for the fiscal years ended December 31, 2022 and December 31, 2021
(including the notes thereto) and related management’s discussion and analysis included in the EMV Public Record;
“EMV Incentive Plan” means
the stock incentive plan of EMV effective May 29, 2020;
“EMV Key Consents” has the
meaning specified in Section 4.04(b);
“EMV Leased Real Property”
has the meaning specified in Section (n)(ii) of Schedule F;
“EMV Locked-Up Shareholders”
means, collectively, those officers and directors of EMV and other EMV Shareholders who have entered into EMV Voting Support Agreements;
“EMV Meeting” means the meeting
of EMV Shareholders, which may be, at the discretion of EMV, a special meeting or an annual general and special meeting, including any
adjournment or postponement thereof, to be called and held in accordance with the Interim Order to consider, among other things, the
EMV Arrangement Resolution;
“EMV Options” means the outstanding
stock options to purchase EMV Shares issued pursuant to the EMV Incentive Plan;
“EMV Owned IP” means the Intellectual
Property owned or purported to be owned by EMV and all Intellectual Property Rights therein excluding any Intellectual Property and Intellectual
Property Rights relating to the EMV Solo Business that is sold by EMV.
“EMV Owned Real Property”
has the meaning specified in Section (n)(i) of Schedule F;
“EMV Personal Property” has
the meaning specified in Section (n)(vi) of Schedule F;
“EMV Personal Property Lease”
means a chattel or movable property lease, equipment lease, conditional sales contract or other similar agreement to which EMV is a party
or under which EMV has rights to use EMV Personal Property;
“EMV Privacy Policy” means
all external or internal policies (including website and application policies) relating to the processing of Personal Information (including
the collection, use, disclosure, sale, lease or transfer (including cross-border transfer) of Personal Information) by EMV, including
any policy relating to the privacy of Personal Information of EMV Employees, customers, prospective customers and any user of any website
or service operated by or on behalf of EMV;
“EMV PSUs” means the outstanding
performance share units issued pursuant to the EMV Incentive Plan;
“EMV Public Record” has the
meaning specified in Section (j) of Schedule F;
“EMV Real Property” has the
meaning specified in Section (n)(iii) of Schedule F;
“EMV Registered Owned IP”
has the meaning specified in Section (dd)(i) of Schedule F;
“EMV RSUs” means the outstanding
restricted share units issued pursuant to the EMV Incentive Plan;
“EMV Securityholders” means,
collectively, the EMV Shareholders, the holders of EMV Options, the holders of EMV RSUs, the holders of EMV PSUs and the holders of EMV
DSUs;
“EMV Shareholders” means the
holders of the EMV Shares;
“EMV Shares” means the common
shares in the capital of EMV;
“EMV Software” has the meaning
specified in Section (ee)(i) of Schedule F;
“EMV Solo Business” means
EMV’s business of designing and producing Solo G3 vehicles, including but not limited to: all new, demo and used Solo G3 vehicles
(including those that EMV has repurchased from customers or other third parties pursuant to the United States National Highway Traffic
Safety Administration recall); EMV’s inventory of parts, tools and auxiliaries relating to the Solo G3 vehicles; the owner and
service manuals, policies, instructions, specifications, designs and other documentation owned by EMV relating to the Solo G3 vehicles;
all EMV Owned IP relating to the Solo G3 vehicles and brand; and any liabilities relating to or associated with such business;
“EMV Superior Proposal” means
any unsolicited bona fide written EMV Acquisition Proposal from a person who is an arm’s length third party to acquire not less
than all of the outstanding EMV Shares (where such EMV Acquisition Proposal is in respect of the EMV Shares) or all or substantially
all of the assets of EMV on a consolidated basis that:
| (a) | complies with Securities Laws and did
not result from or involve a breach of Article 5; |
| (b) | is reasonably capable of being completed
without undue delay, taking into account, all financial, legal, regulatory and other aspects
of such proposal and the person making such proposal; |
| (c) | is made available to all EMV Shareholders
on the same terms and conditions; |
| (d) | is not subject to any financing condition
and in respect of which adequate arrangements have been made to ensure that the required
funds will be available to effect payment in full; |
| (e) | is not subject to any due diligence or
access condition; and |
| (f) | the EMV Board determines, in its good
faith judgment, after receiving the advice of its outside legal and financial advisors and
after taking into account all the terms and conditions of the EMV Acquisition Proposal, including
all legal, financial, regulatory and other aspects of such EMV Acquisition Proposal and the
party making such EMV Acquisition Proposal, (i) would, if consummated in accordance with
its terms, but without assuming away the risk of non-completion, result in a transaction
which is more favourable, from a financial point of view, to the EMV Shareholders than the
Arrangement (including any amendments to the terms and conditions of the Arrangement proposed
by Tevva pursuant to Section 5.04(b)), and (ii) that failure to recommend such EMV Acquisition
Proposal to the EMV Shareholders would be inconsistent with the fiduciary duties of the EMV
Board; |
“EMV Superior Proposal Notice”
has the meaning specified in Section 5.04(a)(iii);
“EMV Termination Amount” means
$6,000,000;
“EMV Termination Amount Event”
has the meaning specified in Section 8.03(b);
“EMV Third Party Software”
has the meaning specified in Section (ee)(i) of Schedule F;
“EMV Voting Support Agreements”
means the voting agreements dated the date hereof and made between Tevva and the EMV Locked-Up Shareholders setting forth the terms and
conditions on which the EMV Locked-Up Shareholders have agreed to vote their EMV Shares in favour of the EMV Arrangement Resolution;
“EMV Warrants” means the outstanding
purchase warrants to acquire EMV Shares;
“Encumbrances” means any mortgage,
charge, deemed trust, pledge, hypothec, security interest, prior claim, encroachments, option, right of first refusal or first offer,
occupancy right, covenant, assignment, lien (statutory or otherwise), defect of title, or restriction or adverse right or claim, or other
third-party interest or encumbrance of any kind, in each case, whether contingent or absolute;
“Environmental Laws” has the
meaning specified in Section (bb) of Schedule F;
“Facility Agreement” has the
meaning specified in the recitals to this Agreement;
“Final Order” means the final
order of the Court approving the Arrangement, after being informed of the intention to rely upon the exemption from registration pursuant
to Section 3(a)(10) of the U.S. Securities Act with respect to the Resulting Issuer Shares to be issued pursuant to the Arrangement,
in a form acceptable to EMV and Tevva, each acting reasonably, as such order may be amended by the Court (with the consent of both EMV
and Tevva, each acting reasonably) at any time prior to the Effective Date or, if appealed, then, unless such appeal is withdrawn or
denied, as affirmed or as amended (provided that any such amendment is acceptable to both EMV and Tevva, each acting reasonably) on appeal;
“Finance Documents” means:
| (a) | the loan agreement dated October 29, 2020
entered into by Tevva and Barclays Bank plc; |
| (b) | the two loan agreements dated January
10, 2023 and May 2023 entered into by Tevva and Givia Pty Ltd as trustee for Yajilarra Trust; |
| (c) | the loan agreement and supplemental agreement
each dated August 3, 2023 entered into by Tevva and Angel CoFund; |
| (d) | the loan agreement and supplemental agreement
each dated August 3, 2023 and entered into by Tevva and TLG Fund I, LP; and |
| (e) | the deed of priority dated August 3, 2023
and entered into between Tevva, Givia Pty Ltd as trustee for Yajilarra Trust, Angel CoFund
and TLG Fund ILP, and the Security Documents; |
“Financing Approval Date”
has the meaning specified in Section 4.02(c);
“Financing Matter” has the
meaning specified in Section 4.06(a);
“Governmental Entity” means
(a) any international, multinational, national, federal, provincial, state, regional, municipal, local or other government, governmental
or public department, central bank, court, tribunal, arbitral body, commission, board, bureau, ministry, agency or instrumentality, domestic
or foreign, including without limitation the UK Secretary of State in the Cabinet Office, (b) any subdivision or authority of any of
the above, including without limitation the UK Investment Security Unit, (c) any quasi-governmental or private body or person exercising
any regulatory, expropriation or taxing authority under or for the account of any of the foregoing or (d) any stock exchange;
“Hazardous Substances” has
the meaning specified in Section (bb) of Schedule F;
“Holdco” has the meaning specified
in the preamble;
“Holdco Arrangement Resolution”
means a resolution of the sole Holdco shareholder prior to the consummation of the transactions contemplated hereby (being the Initial
Holdco Shareholder), approving the Arrangement and the transactions contemplated hereby, substantially in the form of Schedule C;
“Holdco Share” means a common
share in the capital of Holdco;
“Holdco Share Transfer” has
the meaning specified in Section 4.10;
“Holdco Shareholders” means
the holders of legal and beneficial interest in shares in the capital of Holdco that have conveyed their respective Tevva Shares to Holdco
pursuant to the Holdco Share Transfer;
“IFRS” means International
Financial Reporting Standards as issued by the International Accounting Standards Board;
“Indemnified Parties” has
the meaning specified in Section 4.09(b);
“Initial Holdco Shareholder”
means Michael Bridge, as sole shareholder of Holdco as of the date hereof;
“Intellectual Property” means
intellectual property, technology, and information of whatever nature or kind, in all cases whether or not subject to any Intellectual
Property Rights and whether or not fixed in any medium or reduced to practice, including without limitation (a) software, source code
and source materials; (b) business names, service marks, trade names, domain names, trading styles, logos, Trade Secrets, industrial
designs, social media accounts, and copyrights; (c) inventions, invention disclosures, formulae, product formulations, processes and
processing methods, technology and techniques; (d) know-how, trade secrets, research and technical data; (e) studies, findings, algorithms,
instructions, guides, manuals and designs; and (f) brand names;
“Intellectual Property Rights”
means: (a) any and all worldwide proprietary rights provided under (i) patent law, (ii) copyright law, (iii) trade-mark law, (iv) design
patent or industrial design law, (v) semi-conductor chip or mask work law, or (vi) any other applicable statutory provision or common
law principle, including trade secret law, that may provide a right in ideas, formulae, algorithms, concepts, inventions, works, or know-how,
or the expression or use thereof, and including all past, present, and future causes of action, rights of recovery, and claims for damage,
accounting for profits, royalties, or other relief relating, referring, or pertaining to any of the foregoing, and (b) any and all applications,
registrations, licenses, sublicenses, agreements, or any other evidence of a right in any of the foregoing;
“Interim Order” means the
interim order of the Court pursuant to Section 291 of the BCBCA, after being informed of the intention to rely upon the exemption from
registration pursuant to Section 3(a)(10) of the U.S. Securities Act with respect to the Resulting Issuer Shares to be issued pursuant
to the Arrangement, in a form acceptable to EMV and Tevva, each acting reasonably, providing for, among other things, the calling and
holding of the EMV Meeting, as such order may be amended by the Court with the consent of EMV and Tevva, each acting reasonably;
“Investor Majority Consent”
means the consent required pursuant to Part 1 of Schedule 3 of the Investment Agreement approving the Amendment and all (if any) aspects
of the Arrangement which require such consent;
“Issued Shares” has the meaning
specified in Section (f)(i) of Schedule G;
“IT Systems” means, with respect
to any person, the computer, information technology, data processing, and communications systems, components facilities and services
used by the person in the conduct of their businesses, including all Software, hardware, networks, interfaces, platforms, databases,
operating systems, websites, website content, links, and equipment relating to the transmission, storage, maintenance, organization,
presentation, generation, processing, or analysis of data and information, whether or not in electronic format and related systems and
services;
“ITEPA 2003” has the meaning
specified in Section (t)(ix) of Schedule G;
“law” means, with respect
to any person, any and all applicable laws (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule,
regulation, order, injunction, judgment, decree, ruling, by-law, protocol, policy, guidance, notice and procedure or other similar requirement,
whether domestic or foreign, enacted, adopted, promulgated or applied by a Governmental Entity that is binding upon or applicable to
such person or its business, undertaking, property or securities, as amended;
“Material Adverse Change”
means, in respect of any person, any fact or state of facts, change, event, occurrence, effect or circumstance that, individually or
in the aggregate with other such facts, changes, events, occurrences, effects or circumstances, is or could reasonably be expected to
be material and adverse to the business, operations, results of operations, prospects, assets, properties, capitalization, financial
condition or liabilities (contingent or otherwise) of the person and its Subsidiaries, taken as a whole, except, any such change, event,
occurrence, effect, or circumstance resulting from:
| (a) | any change affecting the industries
in which that person and its Subsidiaries operate; |
| (b) | any change in global, national or regional
political conditions (including the outbreak or escalation of war or acts of terrorism) or
in general economic, business, regulatory, political or market conditions or in national
or global financial or capital markets; |
| (c) | any change in U.S. GAAP or IFRS; |
| (d) | any change in general economic, business
or regulatory conditions or in global financial, credit, currency or securities markets in
Canada, the United Kingdom or the United States; |
| (e) | any adoption, proposed implementation
or change in applicable law or any interpretation thereof by any Governmental Entity; |
| (f) | any action taken by that person or any
of its Subsidiaries which is required to be taken pursuant to this Agreement; |
| (g) | any actions taken (or omitted to be taken)
upon the request of Tevva (in respect of EMV) or EMV (in respect of Tevva) in accordance
with the provisions of this Agreement; |
| (h) | the announcement or performance of this
Agreement or the pendency or consummation of the transactions contemplated hereby; or |
| (i) | any change in the market price or trading
volume of any securities of that person (it being understood that the causes underlying such
change in market price may be taken into account in determining whether a Material Adverse
Change has occurred), or any suspension of trading in securities generally on any securities
exchange on which any securities of that person trade, |
provided, however,
that with respect to clauses (a) through to and including (e), such matter does not have a materially disproportionate effect on that
person and its Subsidiaries, taken as a whole, relative to other comparable companies and entities operating in the relevant industry
or industries in which that person and its Subsidiaries operates;
“Material Contract” means,
in respect of any person, any Contract (whether held by such person or a Subsidiary of such person):
| (a) | that if terminated or modified or if it
ceased to be in effect, would reasonably be expected to have a Material Adverse Change on
such person; |
| (b) | relating to any direct or indirect guarantee
of any liabilities or obligations of a third party (other than Ordinary Course endorsements
for collection) in excess of $150,000 in the aggregate; |
| (c) | relating to indebtedness for borrowed
money, whether incurred, assumed, guaranteed or secured by any asset; |
| (d) | restricting the incurrence of indebtedness
by such person or any of its Subsidiaries (including by requiring the granting of an equal
and rateable Encumbrance) or the incurrence of any Encumbrances on any properties or assets
of the such person or any of its Subsidiaries, or restricting the payment of dividends by
such person; |
| (e) | under which such person or any of its
Subsidiaries is obligated to make or expects to receive payments in excess of $150,000 over
the remaining term, other than employment contracts providing annual remuneration of less
than $150,000; |
| (f) | that creates an exclusive dealing arrangement
or right of first or last offer or refusal; |
| (g) | providing for the purchase, sale or exchange
of, or option to purchase, sell or exchange, any property or asset other than in the Ordinary
Course; |
| (h) | providing for the establishment, organization
or formation of any joint venture or similar arrangement; |
| (i) | that limits or restricts (A) the ability
of such person or any of its Subsidiaries to engage in any line of business or carry on business
in any geographic area, or (B) the scope of third parties to whom such person or any of its
Subsidiaries may sell products or deliver services; |
| (j) | solely with respect to EMV, that it is
required to file as an exhibit to a filing made or required to be made with the SEC pursuant
to Item 601(b)(10) of Regulation S-K promulgated by the SEC; or |
| (k) | that is otherwise material to such person
and its Subsidiaries, taken as a whole; |
“Misrepresentation” means
an untrue statement of a material fact or an omission to state a material fact required or necessary to make the statements contained
therein not misleading in light of the circumstances in which they are made;
“Nasdaq” means The Nasdaq
Stock Market LLC;
“Orders” has the meaning specified
in Section (v)(xi) of Schedule F;
“Ordinary Course” means, with
respect to an action taken by a person, that such action is consistent with the past practices of the person and is taken in the ordinary
course of the normal day-to-day operations of the business of the person;
“Outside Date” means January
31, 2023, or such later date as may be agreed to in writing by the Transacting Parties;
“Parentco” has the meaning
specified in the preamble;
“Parentco Arrangement Resolution”
means a resolution of the sole Parentco shareholder prior to the consummation of the transactions contemplated hereby (being Holdco),
approving the Arrangement and the transactions contemplated hereby, substantially in the form of Schedule D;
“Parties” means EMV, Tevva,
Holdco and Parentco, and “Party” means any one of them;
“Pension Scheme” means The
People’s Pension Scheme provided by B & CE Financial Services Limited;
“Pensionable Employees” has
the meaning specified in Section (s)(xxx) of Schedule G;
“Permit” means any license,
permit, certificate, consent, order, grant, approval, classification, registration or other authorization of or from any Governmental
Entity;
“person” includes any individual,
partnership, association, body corporate, organization, trust, estate, trustee, executor, administrator, legal representative, government
(including Governmental Entity), syndicate or other entity, whether or not having legal status;
“Personal Information” means
information in the possession of or under the control of the applicable Party about an identifiable individual, including personal health
information, and personnel records of employees, but does not include the name, title or business address or business telephone number
of an employee or the business contact information of an individual that is used for the purpose of communicating or facilitating communication
with an individual in relation to their employment, business or profession and for no other purpose;
“Plan of Arrangement” means
the plan of arrangement, substantially in the form of Schedule E, subject to any amendments or variations to such plan made in accordance
with Section 9.01 or made at the direction of the Court in the Final Order with the prior written consent of EMV and Tevva, each acting
reasonably;
“Proceeding” means any court,
tribunal, regulatory or similar proceeding (whether civil, administrative, quasi-criminal or criminal), arbitration and other alternative
dispute settlement procedure, investigation, charge, indictment, demand, appeal, review, request for information or inquiry before or
by any Governmental Entity;
“PSC Register” has the meaning
specified in Section (g)(ii) of Schedule G;
“Regulatory Approval” means
any consent, waiver, permit, exemption, review, order, decision or approval of, or any registration or filing with, any Governmental
Entity, or the expiry, waiver or termination of any waiting period imposed by law or a Governmental Entity, in each case in connection
with the transactions contemplated hereby, including the Arrangement;
“Representative” means, with
respect to a person, any officer, director, employee, representative (including any financial or other advisor) or agent of such person
or of any of its Subsidiaries;
“Resulting Issuer” means the
corporation to be formed under the laws of the Province of British Columbia by the amalgamation of Holdco and Parentco pursuant to the
Arrangement;
“Resulting Issuer Share” means
a common share in the capital of the Resulting Issuer;
“SEC” means the U.S. Securities
and Exchange Commission;
“Securities Authorities” means
the Nasdaq, the British Columbia Securities Commission, the SEC and any other applicable securities commissions or securities regulatory
authority of a province or territory of Canada or in the United States;
“Securities Laws” means the
Securities Act (British Columbia) together with all other applicable Canadian provincial and territorial securities laws, rules
and regulations and published policies thereunder, the U.S Exchange Act, the U.S. Securities Act and all other applicable U.S. federal
and state securities laws and rules and regulations promulgated thereunder, together with the applicable rules of the Nasdaq, the Financial
Services and Markets Act (United Kingdom), Prospectus Regulation (United Kingdom) and other securities laws, rules and regulations
applicable in the United Kingdom;
"Security Documents” means:
| (a) | the debenture created by Tevva on 10 January
2023 in favour of Givia Pty Ltd as trustee for Yajilarra Trust; |
| (b) | the debenture created by Tevva on August
3, 2023 in favour of Angel CoFund; and |
| (c) | the debenture created by Tevva on August
3, 2023 in favour of TLG Fund I, LP; |
“Software” means software
programs, including all versions thereof, and all related documentation, manuals, source code and object code, program files, data files,
computer related data, field and data designations and relationships, data definition specifications, data models, program and system
logic, interfaces, program modules, routines, sub-routines, algorithms, program architecture, design concepts, system designs, program
structure, sequences and organization, screen displays and report layouts;
“Subsidiary” has the meaning
specified in National Instrument 45-106 – Prospectus Exemptions as in effect on the date of this Agreement;
“Tax Act” means the Income
Tax Act (Canada);
“Tax Law” means the Tax Act,
and any other comparable law relating to Taxes, Tax Returns, and/or the administration of either, in each instance, of or by any jurisdiction
or Governmental Entity to which a Party is subject;
“Tax Returns” means any and
all (a) returns, assessments, reports, declarations, elections, claims for refunds, notices, forms, designations, information returns,
statements and other written information, whether in tangible, electronic or other form (including estimated tax returns and reports,
withholding tax returns and reports, and information returns and reports) filed or required to be filed in respect of Taxes, (b) schedules
and attachments to any of the items referred to in clause (a) of this definition, and (c) any amendments to any of the items referred
to in clauses (a) or (b) of this definition;
“Taxes” means all federal,
state, provincial, territorial, county, municipal, local or foreign taxes, duties, fees, excises, premiums, assessments, imposts, levies,
fees, contributions, tariffs and/or other charges, withholdings, liabilities or assessments of any kind whatsoever imposed, assessed
or collected by any Governmental Entity, whether computed on a separate, consolidated, unitary, combined or other basis and whether or
not the same is a primary liability, including but not limited to (a) those levied on, or measured by, or described with respect to,
income, net income, gross income gross receipts, royalty, profits, gains, inventory, windfalls, capital, capital gains, capital stock,
production, recapture, transfer or conveyance, land transfer, license, gift, occupation, wealth, alternative minimum, add-on minimums,
environment or natural resources, net worth, unclaimed property, indebtedness, surplus, sales, sales and use, goods and services, harmonized
sales, use, value-added, excise, special assessment, stamp, recording or documentation, withholding (including backup withholding or
otherwise), business, transactions, privileges, franchising, premium, real or personal property, intangible property, ad valorem, windfall
profits, countervail, health, rent or lease payments, employer health, payroll, workers’ compensation, employment or unemployment,
severance, social services, social security, education, utility, surtaxes, customs, import or export, and including all license and registration
fees and all employment insurance, health insurance and government pension plan premiums or contributions and including any estimations
of any of the foregoing; (b) all interest, penalties, fines, additions to tax or other additional amounts imposed by any Governmental
Entity on or in respect of amounts of the type described in clause (a) above or this clause (b); (c) any liability for the payment of
any amounts of the type described in clauses (a) or (b) as a result of being a member of an affiliated, consolidated, combined or unitary
group for any period or otherwise arises due to or in connection with a relationship for Tax purposes with any person; and (d) any liability
for the payment of any amounts of the type described in clauses (a) or (b) as a result of any express or implied obligation, including
but not limited to any obligation to pay for or to indemnify any other person, and including as a result of being a transferee or successor
in interest to any party;
“Terminating Party” has the
meaning specified in Section 4.08(c);
“Termination Notice” has the
meaning specified in Section 4.08(c);
“Tevva” has the meaning specified
in the preamble;
“Tevva Acquisition Proposal”
means, other than the transactions contemplated by this Agreement and other than any transaction involving only Tevva and one or more
of its wholly-owned Subsidiaries, any offer, proposal or inquiry (written or oral) from any person or group of persons other than EMV
(or any affiliate or Subsidiary of EMV) after the date of this Agreement, whether or not delivered to the Tevva Shareholders, relating
to:
| (a) | any sale or disposition (or any long-term
licensing agreement or other arrangement having the same economic effect as a sale), direct
or indirect, of assets representing 20% or more of the consolidated assets or contributing
20% or more of the consolidated revenue of Tevva and its Subsidiaries or of 20% or more of
the voting or equity securities of Tevva or any of its Subsidiaries (or rights or interests
in such voting or equity securities) whose assets, individually or in aggregate represent
20% or more of the consolidated assets of Tevva and its Subsidiaries; |
| (b) | any take-over bid, exchange offer or other
transaction that, if consummated, would result in such person or group of persons beneficially
owning or having the right to acquire 20% or more of any class of voting or equity securities
of Tevva on a partially diluted basis; |
| (c) | any plan of arrangement, merger, amalgamation,
consolidation, share exchange, business combination, reorganization, recapitalization, liquidation,
dissolution, winding up or exclusive license involving Tevva or any of its Subsidiaries;
or |
| (d) | any other similar transaction or series
of transactions involving Tevva or any of its Subsidiaries; |
“Tevva A Ordinary Shares”
means the A Ordinary Shares of £0.000001538 each in the capital of Tevva;
“Tevva Arrangement Resolution”
means the ordinary resolution of the Tevva Ordinary Shareholders, in their capacity as Tevva Ordinary Shareholders and in their capacity
as, at the Effective Time, Holdco Shareholders, substantially in the form of Part A of Schedule B, which shall adopted only if approved
by not less than 66 2/3% of the votes cast in a poll vote;
“Tevva Balance Sheet” has
the meaning specified in Section (j) of Schedule G;
“Tevva Board” means the board
of directors of Tevva as constituted from time to time;
“Tevva Board Recommendation”
has the meaning specified in Section 2.06(b)(iii)(A);
“Tevva Change in Recommendation”
occurs or is made when:
| (a) | the Tevva Board or any committee thereof
fails to publicly recommend the Tevva Board Recommendation; |
| (b) | the Tevva Board or any committee thereof
withdraws, amends, modifies or qualifies the Tevva Board Recommendation in a manner adverse
to EMV, or fails to publicly reaffirm (without qualification) the Tevva Board Recommendation
within five Business Days (and in any case prior to the EMV Meeting) after having been requested
in writing by EMV to do so; |
| (c) | the Tevva Board or any committee thereof
takes any other action that is or becomes disclosed publicly and which can reasonably be
interpreted to indicate that the Tevva Board or a committee thereof does not (i) support
this Agreement or any of the transactions contemplated hereby or (ii) believe that this Agreement
and the transactions contemplated hereby are in the best interests of the Tevva Shareholders;
or |
| (d) | the Tevva Board or any committee thereof
resolves or proposes to take any of the foregoing actions; |
“Tevva Circular” means the
notice of the Tevva Meeting and accompanying management information circular, including all schedules, appendices and exhibits thereto
and all information incorporated by reference therein, to be sent to the Tevva Shareholders in connection with the Tevva Meeting, as
amended, supplemented or otherwise modified from time to time in accordance with the terms of this Agreement;
“Tevva Data” means any and
all information, including Personal Information, collected or otherwise controlled by Tevva or its Subsidiaries about Tevva’s or
its Subsidiaries’ business, customers, independent contractors, temporary workers, Tevva Employees or any other person;
“Tevva Disclosure Letter”
means the disclosure letter executed by Tevva and delivered to and accepted by EMV as of the date of this Agreement;
“Tevva Eligible Holder” means
a Tevva Shareholder that is (a) a resident of Canada for purposes of the Tax Act and not exempt from tax under Part I of the Tax Act,
or (b) a partnership, any member of which is a resident of Canada for purposes of the Tax Act and not exempt from tax under Part I of
the Tax Act;
“Tevva Employee Plan” has
the meaning specified in Section (s)(xxix) of Schedule G;
“Tevva Employees” means any
person employed by Tevva or any of its Subsidiaries under a contract of employment;
“Tevva Financial Statements”
means Tevva’s audited consolidated financial statements for the accounting periods ended December 31, 2022 and December 31, 2021
(including the notes thereto);
“Tevva Key Consents” has the
meaning specified in Section 4.05(a)(ii);
“Tevva Leased Real Property”
has the meaning specified in Section (l)(ii) of Schedule G;
“Tevva Locked-Up Shareholders”
means collectively, those officers and directors of Tevva and other Tevva Shareholders who have entered into Tevva Voting Support Agreements;
“Tevva Matching Period” has
the meaning specified in Section 5.04(a)(v);
“Tevva Meeting” means the
meeting of Tevva Ordinary Shareholders, including any adjournment or postponement thereof, to be called and held in accordance with the
Interim Order to consider, among other things, the Tevva Arrangement Resolution;
“Tevva Options” means the
outstanding stock options to purchase Tevva Ordinary Shares;
“Tevva Ordinary Shareholders””
means the holders of Tevva Ordinary Shares;
“Tevva Ordinary Shares” means
the ordinary shares of £0.00001538 each in the capital of Tevva;
“Tevva Owned IP” means the
Intellectual Property owned or purported to be owned by Tevva and its Subsidiaries and all Intellectual Property Rights therein;
“Tevva Owned Real Property”
has the meaning specified in Section (l)(i) of Schedule G;
“Tevva Personal Property”
has the meaning specified in Section (l)(viii) of Schedule G;
“Tevva Personal Property Lease”
means a chattel or movable property lease, equipment lease, conditional sales contract or other similar agreement to which Tevva is a
party or under which it has rights to use Tevva Personal Property;
“Tevva Privacy Policy” means
all external or internal policies (including website and application policies) relating to the processing of Personal Information (including
the collection, use, disclosure, sale, lease or transfer (including cross-border transfer) of Personal Information) by Tevva, including
any policy relating to the privacy of Personal Information of Tevva Employees, customers, prospective customers and any user of any website
or service operated by or on behalf of Tevva;
“Tevva Real Property” has
the meaning specified in Section (l)(iii) of Schedule G;
“Tevva Registered Owned IP” has
the meaning specified in Section (aa)(i) of Schedule G;
“Trade Secrets” means confidential
know how, methods, proprietary and non-public supplier and technical information, designs, technology, schematics, patterns, formulae,
compilations, data, processes, or plans used or owned by a person in the development, production or exploitation of any products or services
or related intellectual property rights or other assets, or that otherwise derives independent economic value, actual or potential, from
not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from
its disclosure or use;
“Tevva Shareholders” means
holders of Tevva Shares, including for certainty any person who acquires a Tevva Share (whether by exercise of convertible security or
otherwise) following the execution of this Agreement;
“Tevva Shares” means the Tevva
Ordinary Shares and the Tevva A Ordinary Shares;
“Tevva Securityholders” means
Tevva Shareholders, holders of Tevva Options, holders of Tevva Warrants and holders of Tevva indebtedness that is on its terms convertible
into Tevva Shares;
“Tevva Software” has the meaning
specified in Section (bb)(i) of Schedule G;
“Tevva Termination Amount”
means $6,000,000;
“Tevva Termination Amount Event”
has the meaning specified in Section 8.04(b);
“Tevva Third Party Software”
has the meaning specified in Section (bb)(i) of Schedule G;
“Tevva Transaction Resolutions”
means (a) the resolutions of Tevva Ordinary Shareholders to be considered at the Tevva Meeting approving the Amendment, (b) the Tevva
Arrangement Resolution, (c) the resolutions of Tevva Ordinary Shareholders to be considered at the Tevva Meeting approving the other
transactions contemplated hereby, substantially in the form of Schedule B, and such other resolution as each of Tevva and EMV agree
mutually agree in writing are reasonably necessary in order to give effect to the transactions contemplated by this Agreement;
“Tevva Voting Support Agreements”
means the voting agreements dated the date hereof and made between EMV and the Tevva Locked-Up Shareholders setting forth the terms and
conditions on which the Tevva Locked-Up Shareholders have agreed (a) to vote their Tevva Ordinary Shares in favour of the Tevva Transaction
Resolutions, and (b) to enter into the documents required to effect the transfer of their Tevva Shares to Holdco;
“Tevva Warrants” means the
outstanding warrants to purchase Tevva Shares;
“Tevva Worker” means any person
who personally performs work for Tevva or any of its Subsidiaries but who is not a Tevva Employee, in business on their own account or
in a client/customer relationship with Tevva or any of its Subsidiaries;
“Tilbury Lease” has the meaning
specified in Section 4.05(e);
“Transacting Parties” means
EMV and Tevva, and “Transacting Party” means any one of them;
“UK Employment Laws” means
all laws applying in England and Wales from time to time which affect contractual or other relations between an employer and their employees
or workers including (but not limited to) all legislation and any claim arising under European treaty provisions or directives (as any
such treaties or directives apply in England and Wales from time to time, including as retained, amended, extended, re-enacted or otherwise
given effect on or after 11 p.m. on January 31, 2020) which, in either case, are enforceable against Tevva or its Subsidiaries by any
Tevva Employee or Tevva Worker;
"UK Investment Security Unit"
means the Investment Security Unit in the Cabinet Office, which is responsible for the operation of the UK NSIA;
"UK NSIA" means the National
Security and Investment Act 2021 (United Kingdom);
"UK Secretary of State in the Cabinet
Office" means the Secretary of State in the Cabinet Office acting as decision maker for the purposes of the UK NSIA;
“U.S. Exchange Act” means
the United States Securities Exchange Act of 1934;
“U.S. GAAP” means generally
accepted accounting principles in the United States of America that the SEC has identified as having substantial authoritative support,
as supplemented by Regulation S-X under the 1934 Act, as amended from time to time; and
“U.S. Securities Act” means
the United States Securities Act of 1933.
The following rules of
interpretation shall apply in this Agreement unless something in the subject matter or context is inconsistent therewith:
| (a) | the singular includes the plural and vice
versa; |
| (b) | where a word or phrase is defined, its
other grammatical forms have a corresponding meaning; |
| (c) | the headings in this Agreement form no
part of this Agreement and are deemed to have been inserted for convenience only and shall
not affect the construction or interpretation of any of its provisions; |
| (d) | all references in this Agreement shall
be read with such changes in number and gender that the context may require; |
| (e) | references to “Articles,”
“Sections” and “Recitals” refer to articles, sections and recitals
of this Agreement; |
| (f) | the use of the words “including”
or “includes” followed by a specific example or examples shall not be construed
as limiting the meaning of the general wording preceding it; |
| (g) | the rule of construction that, in the
event of ambiguity, the contract shall be interpreted against the Party responsible for the
drafting or preparation of the Agreement, shall not apply; |
| (h) | the words “herein,” “hereof”
and “hereunder” and other words of similar import refer to this Agreement as
a whole and not to any particular Section or other subdivision; |
| (i) | any reference to a statute is a reference
to the applicable statute and to any rules and regulations made pursuant thereto and includes
all amendments made thereto and in force, from time to time, and any statute, rule or regulation
that has the effect of supplementing or superseding such statute, rule or regulation; |
| (j) | unless something in the subject matter
or context is inconsistent therewith or unless otherwise provided, any reference to a specific
agreement, Contract or document in this Agreement is to that agreement, Contract or document,
including all schedules, appendices and exhibits thereto, in its current form or as it may
from time to time be amended, supplemented, varied, novated, extended, altered, replaced
or changed; |
| (k) | in this Agreement, an agreement, representation
or warranty for two or more persons is for the benefit of them jointly and each of them individually
and an agreement, representation or warranty by two or more persons binds them jointly and
each of them individually. A reference to a group of persons or things is a reference to
them jointly or individually; and |
| (l) | the words “written” or “in
writing” include printing or any electronic means of communication capable of being
visibly reproduced at the point of reception including fax or email. |
In this Agreement, unless
something in the subject matter or context is inconsistent therewith, a “day” shall refer to a calendar day and in calculating
all time periods the first day of a period is not included and the last day is included and in the event that any date on which any action
is required to be taken hereunder is not a Business Day, such action will be required to be taken on the next succeeding day that is
a Business Day.
Unless otherwise stated,
all references in this Agreement to sums of money are expressed in lawful money of the United States and “$” refers to United
States dollars.
Unless otherwise stated,
all accounting terms used in this Agreement in respect of:
| (a) | EMV shall have the meanings attributable
thereto under U.S. GAAP and all determinations of an accounting nature required to be made
shall be made in accordance with U.S. GAAP consistently applied; and |
| (b) | Tevva 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. |
| (a) | Where any representation or warranty is
expressly qualified by reference to the knowledge of EMV it shall be deemed to refer to the
actual knowledge, after making reasonable inquiries regarding the relevant matter, of Susan
Docherty and Conark Shah; and |
| (b) | Where any representation or warranty is
expressly qualified by reference to the knowledge of Tevva it shall be deemed to refer to
the actual knowledge, after making reasonable inquiries regarding the relevant matter, of
Harry Hatchwell and David Mackey. |
The Schedules attached
to this Agreement shall be deemed for all purposes to be and form an integral part of this Agreement.
Each of the EMV Disclosure
Letter and the Tevva Disclosure Letter and all information contained therein constitutes confidential information of EMV and Tevva, respectively,
and is subject to the terms and conditions of the Confidentiality Agreement.
Article 2
–
THE ARRANGEMENT
The Arrangement will be
implemented in accordance with and subject to the terms and conditions of this Agreement and the Plan of Arrangement.
As soon as reasonably practicable
after the date of this Agreement, but in any event in sufficient time to hold the EMV Meeting in accordance with Section 2.03 and the
Tevva Meeting in accordance with Section 2.05, each of EMV on the one hand and Tevva on the other hand shall apply to the Court in a
manner and on terms acceptable to the other, acting reasonably, pursuant to Part 9, Division 5 of the BCBCA and, prepare, file and diligently
pursue an application for the Interim Order, which shall provide, among other things:
| (a) | for the class of persons to whom notice
is to be provided in respect of the Arrangement, the EMV Meeting and the Tevva Meeting, and
for the manner in which such notice is to be provided; |
| (b) | confirmation of the record date for the
purposes of determining (i) the EMV Shareholders entitled to receive of notice of and to
vote at the EMV Meeting and (ii) the Tevva Shareholders entitled to receive of notice of
and to vote at the Tevva Meeting; |
| (c) | that the required level of approval for
the |
| (i) | EMV Arrangement Resolution shall be 66 2⁄3%
of the votes cast on the EMV Arrangement Resolution by EMV Shareholders present in person
or represented by proxy at the EMV Meeting, voting together as a single class and |
| (ii) | the Tevva Transaction Resolutions (without
limiting any other requirement of applicable law) shall be 662⁄3%
or 75% (as applicable) of the votes cast on the Tevva Transaction Resolutions by Tevva Ordinary
Shareholders present in person or represented by proxy at the Tevva Meeting, voting together
as a single class; |
| (d) | that in all other respects, the terms,
restrictions and conditions of EMV’s Constating Documents and Tevva’s Constating
Documents, as applicable, shall apply in respect of the EMV Meeting and the Tevva Meeting,
as the case may be, except that for each of the EMV Meeting and the Tevva Meeting the applicable
quorum for the conduct of business shall be at least one-third of outstanding EMV Shares
or Tevva Shares, as applicable; |
| (e) | for the grant of the Dissent Rights to
those EMV Shareholders who are registered EMV Shareholders; |
| (f) | that the deadline for the submission of
proxies by (i) EMV Shareholders for the EMV Meeting shall be 48 hours (excluding Saturdays,
Sundays and statutory holidays in Vancouver, British Columbia) prior to the EMV Meeting,
subject to waiver by EMV in accordance with the terms of this Agreement and (ii) Tevva Ordinary
Shareholders for the Tevva meeting shall be in accordance with law applicable to Tevva and
Tevva’s Constating Documents but in any event shall be no less favourable to Tevva
Shareholders than the deadline for the submission of proxies applicable to EMV Shareholders; |
| (g) | that either or both of the EMV Meeting
and the Tevva Meeting may be adjourned or postponed from time to time by EMV or Tevva, as
applicable, in accordance with the terms of this Agreement or as otherwise agreed by the
Parties without the need for additional approval of the Court and without the necessity of
first convening the meeting or first obtaining any vote of the EMV Shareholders or the Tevva
Ordinary Shareholders, as applicable respecting an adjournment or postponement; |
| (h) | for the notice requirements with respect
to the presentation of the application to the Court for the Final Order; |
| (i) | that it is the Parties’ intention
to rely upon the exemption from registration provided by Section 3(a)(10) of the U.S. Securities
Act with respect to the issuance of the Resulting Issuer Shares to be issued pursuant to
the Arrangement, subject to and conditioned on the Court’s determination that the Arrangement
is substantively and procedurally fair to persons who are entitled to receive Resulting Issuer
Shares pursuant to the Arrangement and based on the Court’s approval of the Arrangement;
and |
| (j) | for such other matters as EMV or Tevva
may reasonably require, subject to obtaining the prior consent of Tevva or EMV (as applicable),
such consent not to be unreasonably withheld or delayed. |
Subject to receipt of the
Interim Order and the terms of this Agreement, EMV shall:
| (a) | convene
and conduct the EMV Meeting in accordance with the Interim Order, EMV’s Constating
Documents and applicable law as soon as reasonably practicable after the Interim Order is
issued, and shall use its commercially reasonable efforts to hold the EMV Meeting on or before
December 8, 2023, for the purpose of considering the EMV Arrangement Resolution, and not
adjourn, postpone or cancel (or propose the adjournment, postponement or cancellation
of) the EMV Meeting without the prior written consent of Tevva, except: |
| (i) | in the case of an adjournment, as required
for quorum purposes or as permitted by EMV’s Constating Documents or as required under
any applicable law; or |
| (ii) | as required or permitted under Section
4.08(c)(i) or Section 5.04(e); |
| (b) | (i) consult with Tevva in fixing the record
date for, and date of, the EMV Meeting; (ii) not change the record date for the EMV Shareholders
entitled to vote at the EMV Meeting in connection with any adjournment or postponement of
the EMV Meeting unless required by applicable law or with Tevva’s consent; (iii) use
commercially reasonable efforts to schedule the EMV Meeting to occur on the same day and
at the same time (adjusted to account for the difference in time zones between the EMV headquarters
and the Tevva headquarters) as the Tevva Meeting; and (iv) give notice to Tevva of the EMV
Meeting and allow Tevva’s representatives and legal counsel to attend the EMV Meeting; |
| (c) | solicit proxies in favour of the approval
of the EMV Arrangement Resolution and against any resolution submitted by any person that
is inconsistent with, or which seeks to hinder or delay, the EMV Arrangement Resolution and
the completion of any of the transactions contemplated by this Agreement, and EMV may at
its own expense, or will if so requested by Tevva and at Tevva’s expense, retain and
use the services of investment dealers and proxy solicitation services firms to solicit proxies
in favour of the approval of the EMV Arrangement Resolution, provided that in either case
EMV shall retain, manage and direct such investment dealers and proxy solicitation services
firms; |
| (d) | permit Tevva to, at Tevva’s expense,
on behalf of the management of EMV, directly or through a soliciting dealer, actively solicit
proxies in favour of the EMV Arrangement Resolution on behalf of management of EMV in compliance
with applicable law and disclose in the EMV Circular that Tevva may make such solicitations; |
| (e) | provide Tevva with copies of or access
to information regarding the EMV Meeting generated by any dealer or proxy solicitation services
firm, as requested from time to time by Tevva, acting reasonably; |
| (f) | promptly advise Tevva, at such times as
Tevva may reasonably request and at least on a daily basis on each of the last seven Business
Days prior to the date of the EMV Meeting, as to the aggregate tally of the proxies received
by EMV in respect of the EMV Arrangement Resolution; |
| (g) | promptly advise Tevva of any communication
(written or oral) from any EMV Shareholder in opposition to EMV Arrangement Resolution, the
Arrangement or any of the other transactions contemplated hereby, written notice of dissent,
purported exercise or withdrawal of Dissent Rights, and written communications sent by or
on behalf of EMV to any EMV Shareholder exercising or purporting to exercise Dissent Rights; |
| (h) | provide Tevva with an opportunity to review
and comment on any written communication sent by or on behalf of EMV to any EMV Shareholder
exercising or purporting to exercise Dissent Rights and not make any payment or settlement
offer, or agree to any payment or settlement prior to the Effective Time with respect to
Dissent Rights without the prior written consent of Tevva; and |
| (i) | at the reasonable request of Tevva from
time to time, provide Tevva with a list of (i) the EMV Shareholders, together with their
addresses and respective holdings of EMV Shares, (ii) the names, addresses and holdings of
all persons having rights issued by EMV to acquire EMV Shares (including holders of EMV Dilutive
Securities), and (iii) participants and book-based nominee registrants, and non-objecting
beneficial owners of EMV Shares, together with their addresses and respective holdings of
EMV Shares. EMV shall from time to time require that its registrar and transfer agent furnish
Tevva with such additional information, including updated or additional lists of EMV Shareholders,
and lists of securities positions and other assistance as Tevva may reasonably request. |
| (a) | EMV shall prepare and complete, in consultation
with Tevva, the EMV Circular together with any other documents required by applicable law
in connection with the EMV Meeting and the Arrangement, and EMV shall promptly cause the
EMV Circular and such other documents to be filed with the Securities Authorities, as required
by Securities Laws, and sent to each EMV Shareholder and other person as required by the
Interim Order and applicable law, in each case so as to permit the EMV Meeting to be held
by the date specified in Section 2.03(a). |
| (b) | EMV shall ensure that the EMV Circular: |
| (i) | complies in all material respects with applicable
law (including Securities Laws), does not contain any Misrepresentation (provided that EMV
shall not be responsible for any information included in the EMV Circular that was furnished
by Tevva specifically for purposes of inclusion in the EMV Circular) and provides the EMV
Shareholders with sufficient information to permit them to form a reasoned judgement concerning
the matters to be placed before the EMV Meeting; |
| (ii) | includes a copy of the EMV Fairness Opinion; |
| (iii) | includes a statement that the EMV Board
has received the EMV Fairness Opinion and has, after receiving legal and financial advice,
determined that the EMV Arrangement Resolution is in the best interests of EMV and recommends
that the EMV Shareholders vote in favour of the EMV Arrangement Resolution (the “EMV
Board Recommendation”); |
| (iv) | includes a statement that each of the EMV
Locked-Up Shareholders has signed an EMV Voting Support Agreement, pursuant to which, and
subject to the terms of such EMV Voting Support Agreement, they have agreed to, among other
things, vote their EMV Shares in favour of the EMV Arrangement Resolution and against any
resolutions submitted by any person that are inconsistent with the transactions contemplated
by this Agreement; and |
| (v) | includes all statements that, in the reasonable
judgment of the Parties and their legal counsel, are required to allow the Parties to rely
on the exemption from registration provided by Section 3(a)(10) of the U.S. Securities Act. |
| (c) | EMV shall give Tevva and its legal counsel
a reasonable opportunity to review and comment on drafts of the EMV Circular and other related
documents, and shall give reasonable consideration to any comments made by Tevva and its
counsel, and agrees that all information relating solely to Tevva included in the EMV Circular
must be in a form and content satisfactory to Tevva, acting reasonably. |
| (d) | Tevva shall provide all necessary information
concerning Tevva that is required by applicable law to be included by EMV in the EMV Circular
such that the EMV Meeting can be held as contemplated by Section 2.03(a), including the Tevva
Financial Statements, or other related documents to EMV in writing, and shall ensure that
such information (including any information or documentation incorporated by reference therein)
does not contain any Misrepresentation. |
| (e) | Each Transacting Party shall promptly
notify the other Transacting Party if it becomes aware that the EMV Circular contains a Misrepresentation,
or otherwise requires an amendment or supplement. The Parties shall co-operate in the preparation
of any such amendment or supplement as required or appropriate, and EMV shall promptly mail,
file or otherwise publicly disseminate any such amendment or supplement to the EMV Shareholders
and, if required by the Court or by applicable law, file the same with the Securities Authorities
or any other Governmental Entity as required. |
Subject to receipt of the
Interim Order and the terms of this Agreement, Tevva shall:
| (a) | convene and conduct the Tevva Meeting
in accordance with Tevva’s Constating Documents and applicable law as soon as reasonably
practicable after the Interim Order is issued, and
shall use its commercially reasonable efforts to hold the Tevva Meeting on or before December
8, 2023, for the purpose of considering the Tevva Transaction Resolutions and for
any other proper purpose, and not adjourn, postpone or cancel (or propose the adjournment,
postponement or cancellation of) the Tevva Meeting without the prior written consent of EMV,
except: |
| (i) | in the case of an adjournment, as required
for quorum purposes or as permitted by Tevva’s Constating Documents or as required
under any applicable law; or |
| (ii) | as required or permitted under Section
4.08(c)(ii); |
| (b) | (i) consult with EMV in fixing the record
date for, and date of, the Tevva Meeting; (ii) not change the record date for the Tevva Shareholders
entitled to vote at the Tevva Meeting in connection with any adjournment or postponement
of the Tevva Meeting unless required by applicable law or with EMV’s consent; (iii)
use commercially reasonable efforts to schedule the Tevva Meeting to occur on the same day
and at the same time (adjusted to account for the difference in time zones between the Tevva
headquarters and the EMV headquarters) as the EMV Meeting; and (iv) give notice to EMV of
the Tevva Meeting and allow EMV’s representatives and legal counsel to attend the Tevva
Meeting; |
| (c) | solicit proxies in favour of the approval
of the Tevva Transaction Resolutions and against any resolution submitted by any person that
is inconsistent with the Tevva Transaction Resolutions and the completion of any of the transactions
contemplated by this Agreement, and Tevva may at its own expense, or will if so requested
by EMV and at EMV’s expense, retain and use the services of investment dealers and
proxy solicitation services firms to solicit proxies in favour of the approval of the Tevva
Transaction Resolutions, provided that in either case Tevva shall retain, manage and direct
such investment dealers and proxy solicitation services firms; |
| (d) | promptly advise EMV, at such times as
EMV may reasonably request and at least on a daily basis on each of the last seven Business
Days prior to the date of the Tevva Meeting, as to the aggregate tally of the proxies received
by Tevva in respect of the Tevva Transaction Resolutions; |
| (e) | promptly advise EMV of any communication
(written or oral) from any Tevva Shareholder in opposition to the Tevva Transaction Resolutions,
the Arrangement or any of the other transactions contemplated hereby; and |
| (f) | at the reasonable request of EMV from
time to time, provide EMV with a list of (i) the Tevva Shareholders, together with their
addresses and respective holdings of Tevva Shares, (ii) the names, addresses and holdings
of all persons having rights issued by Tevva to acquire Tevva Shares (including holders of
Tevva Options and Tevva Warrants), and (iii) participants and book-based nominee registrants,
and non-objecting beneficial owners of Tevva Shares, together with their addresses and respective
holdings of Tevva Shares. Tevva shall from time to time furnish EMV with such additional
information, including updated or additional lists of Tevva Shareholders, and lists of securities
positions and other assistance as EMV may reasonably request. |
| (a) | Tevva shall prepare and complete, in consultation
with EMV, the Tevva Circular together with any other documents required by applicable law
in connection with the Tevva Meeting, and Tevva shall, promptly cause the Tevva Circular
and such other related documents to be sent to each Tevva Ordinary Shareholder and other
person as required by applicable law and so as to permit the Tevva Meeting to be held by
the date specified in Section 2.05(a). |
| (b) | Tevva shall ensure that the Tevva Circular: |
| (i) | complies in all material respects with applicable
law and provides Tevva Ordinary Shareholders with disclosure regarding the Arrangement and
the Holdco Share Transfer in a manner that is substantively similar to the disclosure delivered
in the EMV Circular; |
| (ii) | provides the Tevva Ordinary Shareholders
with sufficient information to permit them to form a reasoned judgement concerning the matters
to be placed before the Tevva Meeting; |
| (iii) | does not contain any Misrepresentation
(provided that Tevva shall not be responsible for any information included in the Tevva Circular
that was furnished by EMV specifically for purposes of inclusion in the Tevva Circular) and
provides the Tevva Ordinary Shareholders with sufficient information to permit them to form
a reasoned judgement concerning the matters to be placed before the Tevva Meeting. Without
limiting the generality of the foregoing, the Tevva Circular must include: |
| (A) | a statement that the Tevva Board recommends
that the Tevva Ordinary Shareholders vote in favour of the Tevva Transaction Resolutions
(the “Tevva Board Recommendation”); |
| (B) | a statement that each of the Tevva Locked-Up
Shareholders has signed a Tevva Voting Support Agreement, pursuant to which, and subject
to the terms of such Tevva Voting Support Agreement, they have agreed to, among other things,
(i) vote their Tevva Ordinary Shares in favour of the Tevva Transaction Resolutions and against
any resolutions submitted by any person that are inconsistent with the transactions contemplated
by this Agreement (ii) transfer their Tevva Shares to Holdco; |
| (C) | a statement that the Investor Majority
Consent has been obtained; and |
| (D) | a statement that, should any Tevva Shareholders
not execute the relevant documentation to transfer their Tevva Shares to Holdco, it is intended
that the drag along provisions of Tevva’s Constating Documents will be used in order
to enable Holdco to acquire 100% of the Tevva Shares (provided that at least 60% of the holders
of Tevva Ordinary Shares have agreed to transfer their Tevva Shares to Holdco). |
| (c) | Tevva shall give EMV and its legal counsel
a reasonable opportunity to review and comment on drafts of the Tevva Circular and other
related documents, and shall give reasonable consideration to any comments made by EMV and
its counsel, and agrees that all information relating solely to EMV included in the Tevva
Circular must be in a form and content satisfactory to EMV, acting reasonably. |
| (d) | EMV shall provide all necessary information
concerning EMV that is required by applicable law to be included by Tevva in the Tevva Circular
or other related documents to Tevva in writing such that the Tevva Meeting can be held as
contemplated by Section 2.05(a), and shall ensure that such information (including any information
or documentation incorporated by reference therein) does not contain any Misrepresentation. |
| (e) | Each Transacting Party shall promptly
notify the other Transacting Party if it becomes aware that the Tevva Circular contains a
Misrepresentation, or otherwise requires an amendment or supplement. The Parties shall co-operate
in the preparation of any such amendment or supplement as required or appropriate, and Tevva
shall promptly mail and, if required by applicable law, file or otherwise publicly disseminate
any such amendment or supplement to the Tevva Shareholders and, if required by applicable
law, file the same with any applicable securities regulatory authorities or other Governmental
Entity as required. |
| 2.07 | Holdco and Parentco Shareholder
Approval |
Subject to receipt of the
Interim Order, the terms of this Agreement and the adoption by the Tevva Ordinary Shareholders of the Tevva Transaction Resolutions at
the Tevva Meeting, Holdco shall as soon as reasonably practicable, but in any event in sufficient time to apply for the Final Order in
accordance with Section 2.08, take all such steps as are necessary to cause each of the Holdco Arrangement Resolution and the Parentco
Arrangement Resolution to be adopted.
If the Interim Order is
obtained and following the adoption of the EMV Arrangement Resolution at the EMV Meeting and the adoption of the Tevva Transaction Resolutions
at the Tevva Meeting, EMV and Tevva shall as soon as reasonably practicable, but in any event not later than three Business Days (unless
otherwise agreed by EMV and Tevva in writing) after the later of the EMV Arrangement Resolution and the Tevva Transaction Resolutions
to be adopted, take all steps necessary or desirable to submit the Arrangement to the Court and diligently pursue an application for
the Final Order pursuant to Part 9, Division 5 of the BCBCA.
| (a) | Subject to the terms of this Agreement,
Tevva shall use its commercially reasonable efforts to cooperate with and assist EMV in seeking
the Interim Order and the Final Order. |
| (b) | In connection with all Court proceedings
relating to obtaining the Interim Order and the Final Order, and in each case subject to
applicable law, EMV shall: |
| (i) | diligently pursue, and cooperate with Tevva
in diligently pursuing, the Interim Order and the Final Order; |
| (ii) | provide legal counsel to Tevva with a reasonable
opportunity to review and comment upon drafts of all material to be filed with the Court
in connection with the Arrangement, and give reasonable consideration to all such comments; |
| (iii) | provide copies of any notice of appearance,
evidence or other documents served on EMV or its legal counsel in respect of the application
for the Interim Order or the Final Order or any appeal from them, and any notice, written
or oral, indicating the intention of any person to appeal, or oppose the granting of, the
Interim Order or the Final Order; |
| (iv) | ensure that all material filed with the
Court in connection with the Arrangement is consistent with this Agreement and the Plan of
Arrangement; |
| (v) | not file any material with the Court in
connection with the Arrangement or serve any such material, or agree to modify or amend any
material so filed or served, except as contemplated by this Agreement or with Tevva’s
prior written consent, such consent not to be unreasonably withheld, conditioned or delayed,
provided Tevva is not required to agree or consent to any increase in or variation in the
form of the Consideration or other modification or amendment to such filed or served materials
that expands or increases Tevva’s obligations, or diminishes or limits Tevva’s
rights, set forth in any such filed or served materials or under this Agreement; |
| (vi) | oppose any proposal from any person that
the Final Order contain any provision inconsistent with this Agreement; and |
| (vii) | not object to legal counsel to Tevva making
such submissions on the hearing of the motion for the Interim Order and the application for
the Final Order as such counsel considers appropriate, provided Tevva advises EMV of the
nature of any such submissions prior to the hearing and such submissions are reasonable and
consistent with this Agreement and the Plan of Arrangement. |
| 2.10 | Arrangement and Effective
Date |
| (a) | The Effective Date will occur on the date
upon which the Transacting Parties agree in writing as the date upon which the Arrangement
becomes effective or, in the absence of such agreement, on the date that is three Business
Days following the satisfaction or, where not prohibited, the waiver by the applicable Party
in whose favour the condition is, of the conditions set out in Article 7 (excluding conditions
that, by their terms, cannot be satisfied until the Effective Date, but subject to the satisfaction
or, where not prohibited, the waiver by the applicable Party in whose favour the condition
is, of those conditions as of the Effective Date), and the Arrangement shall be effective
at the Effective Time on the Effective Date and will have all of the effects provided by
applicable law. |
| (b) | The closing of the Arrangement will take
place via electronic document exchange or at the offices of McCarthy Tétrault LLP
in Vancouver, British Columbia, or at such other location as may be agreed upon by the Parties. |
EMV, Tevva, Holdco, Parentco,
the Resulting Issuer and the Depositary shall be entitled to deduct, withhold from and remit or pay any consideration payable or otherwise
deliverable to any person hereunder or under the Plan of Arrangement and from all dividends or other distributions or other payments
otherwise payable to any former securityholders of any of EMV or Tevva, such amounts as EMV, Tevva, Holdco, Parentco, the Resulting Issuer
or the Depositary may be permitted, entitled, or required by applicable law to deduct, withhold and pay or remit therefrom under any
provision of applicable laws in respect of Taxes. To the extent that such amounts are so deducted, withheld and remitted or paid to the
applicable Governmental Entity, such amounts shall be treated for all purposes under this Agreement as having been paid or delivered
to the person to whom, or with respect to which, such amounts would otherwise have been paid. To the extent necessary, such deductions
and withholdings may be effected by selling any Resulting Issuer Shares to which such holder or recipient may otherwise be entitled under
the Plan of Arrangement, and any amount remaining following the sale, deduction and remittance shall be paid to the holder or recipient
entitled thereto as soon as reasonably practicable.
Notwithstanding any representations
and covenants set forth in this Agreement, it is understood and agreed that none of EMV, Tevva, Holdco or Parentco provides any assurances
to any security holder of any of EMV or Tevva regarding the income tax consequences of the Arrangement, the Holdco Share Transfer or
any of the other transactions contemplated hereby to any security holder of EMV or Tevva, except as may otherwise be provided in the
EMV Circular and Tevva Circular.
| 2.13 | Issue of Resulting Issuer
Shares |
Following receipt of the
Final Order and prior to the Effective Time, the Parties shall cause a treasury direction to be delivered to the Resulting Issuer’s
transfer agent (with a copy to the Depositary) and irrevocable to issue sufficient Resulting Issuer Shares to (a) former EMV Securityholders
(other than any EMV Shareholders that have validly exercised, and not withdrawn, Dissent Rights) and (b) former Holdco securityholders
under the Arrangement at the Effective Time, all as provided for in the Plan of Arrangement.
| 2.14 | U.S. Securities Law Matters |
The Parties agree that the Arrangement will be
carried out with the intention that all Resulting Issuer Shares issued under the Arrangement will be issued by the Resulting Issuer in
reliance on the exemption from the registration requirements of the U.S. Securities Act provided by Section 3(a)(10) thereunder. In order
to ensure the availability of the exemption under Section 3(a)(10) of the U.S. Securities Act and to facilitate the Resulting Issuer’s
compliance with other United States federal and state securities laws, the Parties agree that the Arrangement will be carried out on
the following basis:
| (a) | the procedural and substantive fairness
of the terms and conditions of the Arrangement will be subject to the approval of the Court; |
| (b) | pursuant to Section 2.02(h), prior to
the issuance of the Interim Order, the Court will be advised as to the intention of the Parties
to rely on the exemption from registration provided by Section 3(a)(10) of the U.S. Securities
Act with respect to the issuance of Resulting Issuer Shares pursuant to the Arrangement,
based on the Court’s approval of the Arrangement; |
| (c) | prior to the issuance of the Interim Order,
EMV will file with the Court a draft copy of the proposed text of the EMV Circular together
with any other documents required by applicable law in connection with the EMV Meeting; |
| (d) | the Court will be required to satisfy
itself as to the procedural and substantive fairness of the terms and conditions of the Arrangement
to all persons who are entitled to receive Resulting Issuer Shares pursuant to the Arrangement; |
| (e) | each person entitled to receive Resulting
Issuer Shares pursuant to the Arrangement will be given adequate and appropriate notice advising
them of their right to attend the hearing of the Court to approve the procedural and substantive
fairness of the terms and conditions of the Arrangement and providing them with sufficient
information necessary for them to exercise that right; |
| (f) | all persons entitled to receive Resulting
Issuer Shares pursuant to the Arrangement will be advised that the issuance of the Resulting
Issuer Shares issued pursuant to the Arrangement have not been registered under the U.S.
Securities Act and will be issued by the Resulting Issuer in reliance on the exemption from
registration provided by Section 3(a)(10) of the U.S. Securities Act; |
| (g) | the Final Order will expressly include: |
| (i) | a recital substantially to the following
effect: |
“It is the intention of the parties
to rely on Section 3(a)(10) of the United States Securities Act of 1933, as amended (the “U.S. Securities Act”),
and that the declaration of the fairness of, and the approval of, the Arrangement contemplated in the Plan of Arrangement, a copy of
which is attached to the final order, by the Court will serve as the basis for an exemption from the registration requirements of the
U.S. Securities Act pursuant to section 3(a)(10) thereof, for the issuance and distribution of the shares of Tevva Motors, Inc. in connection
with the Arrangement”; and
| (ii) | a statement substantially to the following
effect: |
“The Arrangement as provided
for in the Plan of Arrangement, including the terms and conditions thereof and the issuances and exchanges of securities contemplated
therein, is fair and reasonable to the EMV Shareholders and the Tevva Shareholders”;
| (h) | the Interim Order will specify that each
person entitled to receive Resulting Issuer Shares pursuant to the Arrangement will have
the right to appear before the Court at the hearing of the Court to give approval of the
Arrangement so long as they enter an appearance within a reasonable time; and |
| (i) | the Court will hold a hearing before approving
the procedural and substantive fairness of the terms and conditions of the Arrangement and
issuing the Final Order. |
| 2.15 | Adjustment of Consideration |
| (a) | Notwithstanding anything in this Agreement
to the contrary, if between the date of this Agreement and the earlier of the Effective Date
and the time that this Agreement is terminated in accordance with its terms, EMV declares,
sets aside or pays any dividend or other distribution (whether in cash, stock or other property
or combination thereof) on the EMV Shares with a record date on or prior to the Effective
Date, then the Consideration to be paid to the EMV Shareholders as a result of this Agreement
and the Plan of Arrangement shall be equitably adjusted to provide EMV and the EMV Shareholders
the same economic effect as contemplated by this Agreement prior to such action and as so
adjusted shall, from and after the date of such event, form part of the Consideration to
be paid per EMV Share transferred under this Agreement and the Plan of Arrangement. |
| (b) | Notwithstanding anything in this Agreement
to the contrary, if between the date of this Agreement and the earlier of the Effective Date
and the time that this Agreement is terminated in accordance with its terms, Tevva declares,
sets aside or pays any dividend or other distribution (whether in cash, stock, or other property
or combination thereof) on the Tevva Shares with a record date on or prior to the Effective
Date, then the Consideration to be paid to the Tevva Shareholders as a result of this Agreement
and the Plan of Arrangement shall be equitably adjusted to provide Tevva and the Tevva Shareholders
the same economic effect as contemplated by this Agreement prior to such action and as so
adjusted shall, from and after the date of such event, form part of the Consideration to
be paid per Tevva Share transferred under this Agreement and the Plan of Arrangement. |
| 2.16 | Incentive Plan Matters |
| (a) | The Parties acknowledge that the EMV Options,
EMV DSUs, EMV PSUs, and EMV RSUs shall be treated in accordance with the provisions of the
Plan of Arrangement. |
| (b) | The Parties acknowledge that no deduction
will be claimed in any taxation year by EMV or any person not dealing at arm’s length
(for purposes of the Tax Act) with EMV, in computing its income under the Tax Act, in respect
of any payment made to or for the benefit of a holder of EMV Options in exchange for the
surrender of EMV Options pursuant to the Plan of Arrangement who: (i) is a resident of Canada
or who is (or was) employed in Canada (all within the meaning of the Tax Act) and (ii) would,
if the election and other actions contemplated by this Section 2.16(b) were made or taken
(as the case may be), be entitled to a deduction pursuant to paragraph 110(1)(d) of the Tax
Act in respect of such payment, and EMV shall: (iii) where applicable, make and timely file
an election pursuant to subsection 110(1.1) of the Tax Act in respect of each such payment
made in exchange for the surrender of EMV Options, and (iv) provide evidence in writing of
such election to each such holder of EMV Options. |
Each Transacting Party acknowledges
that certain EMV Warrants shall remain outstanding following the closing of the Arrangement and that such EMV Warrants shall remain exercisable
pursuant to the terms and conditions of the warrant certificates representing such EMV Warrants. Each Transacting Party shall take all
such steps are necessary steps to give effect to the EMV Warrants.
Article 3
–
REPRESENTATIONS AND WARRANTIES
| 3.01 | Representations and Warranties
of EMV |
| (a) | EMV represents and warrants to the other
Parties as set forth in Schedule E and acknowledges and agrees that the other Parties
are relying upon such representations and warranties in connection with the entering into
of this Agreement. Notwithstanding anything in the EMV Disclosure Letter to the contrary,
any disclosure in the EMV Disclosure Letter shall be a disclosure for purposes of all representations
and warranties in Schedule E to the extent the relevance of such disclosure to any such
representation or warranty is reasonably clear on the face of such disclosure. |
| (b) | The representations and warranties of
EMV contained in this Agreement shall not survive the completion of the Arrangement and shall
expire and be terminated on the earlier of the Effective Time and the date on which this
Agreement is terminated in accordance with its terms. |
| 3.02 | Representations and Warranties
of Tevva |
| (a) | Tevva represents and warrants to the other
Parties as set forth in Schedule G and acknowledges and agrees that the other Parties
are relying upon such representations and warranties in connection with the entering into
of this Agreement. Notwithstanding anything in the Tevva Disclosure Letter to the contrary,
any disclosure in the Tevva Disclosure Letter shall be a disclosure for purposes of all representations
and warranties in Schedule G to the extent the relevance of such disclosure to any such
representation or warranty is reasonably clear on the face of such disclosure. |
| (b) | The representations and warranties of
Tevva contained in this Agreement shall not survive the completion of the Arrangement and
shall expire and be terminated on the earlier of the Effective Time and the date on which
this Agreement is terminated in accordance with its terms. |
| 3.03 | Representations and Warranties
of Holdco |
| (a) | Holdco represents and warrants to the
other Parties as set forth in Schedule H and acknowledges and agrees that the other
Parties are relying upon such representations and warranties in connection with the entering
into of this Agreement. |
| (b) | The representations and warranties of
Holdco contained in this Agreement shall not survive the completion of the Arrangement and
shall expire and be terminated on the earlier of the Effective Time and the date on which
this Agreement is terminated in accordance with its terms. |
| 3.04 | Representations and Warranties
of Parentco |
| (a) | Parentco represents and warrants to the
other Parties as set forth in Schedule I and acknowledges and agrees that the other
Parties are relying upon such representations and warranties in connection with the entering
into of this Agreement. |
| (b) | The representations and warranties of
Parentco contained in this Agreement shall not survive the completion of the Arrangement
and shall expire and be terminated on the earlier of the Effective Time and the date on which
this Agreement is terminated in accordance with its terms. |
Article 4
–
COVENANTS
| 4.01 | Conduct of Business of
EMV |
Except as set forth in
Section 4.01 of the EMV Disclosure Letter, EMV covenants and agrees that during the period from the date of this Agreement until the
earlier of the Effective Date and the time that this Agreement is terminated in accordance with its terms, except as expressly permitted
or required by this Agreement or the Plan of Arrangement, as required by applicable law or a Governmental Entity, or unless Tevva otherwise
consents in writing, such consent not to be unreasonably withheld, conditioned or delayed:
| (a) | to conduct business, and cause its Subsidiaries
to conduct business, in the Ordinary Course and in compliance, in all material respects,
with all applicable laws and Material Contracts of EMV; |
| (b) | without limiting the generality of Section
4.01(a), to use commercially reasonable efforts to preserve intact the current business organization
of EMV and its Subsidiaries, and maintain good relations with, and the goodwill of, suppliers,
customers, landlords, creditors, distributors and all other persons having business relationships
with EMV and its Subsidiaries; |
| (c) | without restricting in any way its
ability to prosecute the actions or transactions contemplated in this Agreement, to use commercially
reasonable efforts to maintain and preserve its unrestricted cash balance; and |
| (d) | except for transactions involving EMV
and one or more of its Subsidiaries or between Subsidiaries of EMV, or for transactions necessary
or desirable to effect a sale of the EMV Solo Business, to not, and not permit any of its
Subsidiaries to, directly or indirectly: |
| (i) | amend the Constating Documents of the applicable
entity; |
| (ii) | split, combine or reclassify any of its
shares, declare, set aside or pay any dividend or other distribution (whether in cash, stock
or property or any combination thereof) or amend any term of any outstanding debt security; |
| (iii) | adopt or materially amend or make any
contribution to or any award under any stock option plan, restricted share unit plan, deferred
share unit plan, performance share unit plan or other bonus, profit sharing, option, pension,
retirement, deferred compensation, insurance, incentive compensation, compensation or other
similar plan, agreement, trust, fund or arrangement for the benefit of directors or officers
or former directors or officers of EMV or its Subsidiaries; |
| (iv) | redeem, repurchase, or otherwise acquire
or offer to redeem, repurchase or otherwise acquire any shares of its capital stock; |
| (v) | issue, deliver, sell, pledge or otherwise
encumber, or authorize the issuance, delivery, sale, pledge or other encumbrance of any shares
of its capital stock or other equity or voting interests, or any options, warrants or similar
rights exercisable or exchangeable for or convertible into such capital stock or other equity
or voting interests, or any stock appreciation rights, phantom stock awards or other rights
that are linked to the price or the value of EMV Shares, except for the issuance of EMV Shares
issuable upon the exercise or vesting of the EMV Dilutive Securities outstanding on the date
of this Agreement in accordance with the terms thereof; |
| (vi) | acquire (by merger, consolidation, acquisition
of stock or assets or otherwise), directly or indirectly, in one transaction or in a series
of related transactions, any material assets, securities, properties, interests or businesses; |
| (vii) | sell, lease, transfer, encumber or otherwise
dispose of any of its assets or any interest therein except for assets which are obsolete
and which individually or in the aggregate do not exceed $150,000; |
| (viii) | enter into any lease or sublease of real
property (whether as a lessor, sublessor, lessee or sublessee), or modify, amend or exercise
any right to renew any lease or sublease of real property or acquire any interest in real
property; |
| (ix) | make any capital expenditure or capital
commitment to do so which individually or in the aggregate exceeds $150,000; |
| (x) | prepay any indebtedness before it falls
due or increase, create, incur, assume or otherwise become liable for any indebtedness for
borrowed money or guarantees thereof; |
| (xi) | make any loan or advance to, or any capital
contribution or investment in, or assume, guarantee or otherwise become liable with respect
to the liabilities or obligations of, any person; |
| (xii) | enter into any interest rate, currency,
equity or commodity swaps, hedges, derivatives, forward sales contracts or similar financial
instruments; |
| (xiii) | engage in any new business, enterprise
or other activity that is inconsistent with the existing business of EMV or its applicable
Subsidiary in the manner such existing business generally has been carried on or planned
or proposed to be carried on prior to the date of this Agreement; |
| (xiv) | create any Subsidiary or enter into any
Contracts or other arrangements regarding the control or management of the operations, or
the appointment of governing bodies or enter into any joint ventures; |
| (xv) | (A) make, amend or rescind any Tax election,
(B) amend any Tax Return or take any position on any Tax Return that results in an increased
Tax liability, (C) settle or compromise any material liability for Taxes, (D) enter into
any Tax allocation, Tax sharing, Tax indemnity or other agreement relating to any Taxes,
or (E) surrender or forfeit any right to claim a Tax refund; |
| (xvi) | take any action with respect to the computation
of Taxes or the preparation of Tax Returns that is in any material respect inconsistent with
past practice; |
| (xvii) | other than in the Ordinary Course, make
any bonus or profit sharing distribution or similar payment of any kind; |
| (xviii) | make any change in EMV’s or any
of its Subsidiaries’ methods of accounting, except as required by concurrent changes
in U.S. GAAP or Public Company Accounting Oversight Board rules or requirements; |
| (xix) | (A) increase any severance, change of
control or termination pay to (or amend any existing arrangement with) any EMV Employee or
director or officer of EMV or any of its Subsidiaries; (B) increase the benefits payable
under any existing severance or termination pay policies with any EMV Employee or director
or officer of EMV or any of its Subsidiaries; (C) increase the benefits payable under any
employment or other agreements with any EMV Employee or director or officer of EMV or any
of its Subsidiaries; (D) enter into any employment, deferred compensation or other similar
agreement (or amend any such existing agreement) with any director or officer of EMV or any
of its Subsidiaries; (E) enter into any employment or other similar agreement with any person
which includes any change of control provision or any provision for severance or termination
pay in excess of the statutory minimum; (F) increase compensation, bonus levels or other
benefits payable to any EMV Employee or director or officer of EMV or any of its Subsidiaries
(other than, in the case of an EMV Employee who is not a director or officer of EMV or any
of its Subsidiaries, in a manner consistent with past practice); or (G) take any action to
accelerate the time of payment of any compensation or benefits, amend or waive any performance
or vesting criteria or accelerate vesting under any compensation plan; |
| (xx) | cancel, waive, release, assign, settle
or compromise any claims or rights, except in the Ordinary Course (provided that any such
cancellation, waiver, release, assignment, settlement or compromise is not individually in
an amount of more than $250,000); |
| (xxi) | compromise or settle any Proceeding (A)
with a compromise or settlement value in excess of $250,000 (exclusive of amounts not covered
by insurance), (B) that imposes injunctive or other non-monetary relief on EMV or any Subsidiary
of EMV or (C) that is otherwise material to EMV or any Subsidiary of EMV; |
| (xxii) | commence any action, claim or other Proceeding
(other than to enforce the terms of this Agreement, to enforce other obligations of Tevva
or as a result of litigation commenced against EMV); |
| (xxiii) | amend or modify in any material respect,
or terminate or waive any right under, any Material Contract of EMV or enter into any Contract
that would be a Material Contract of EMV if in effect on the date hereof; |
| (xxiv) | make an application to amend, terminate,
allow to expire or lapse or otherwise modify any of its material Permits or take any action
or fail to take any action which action or failure to act would result in the material loss,
expiration or surrender of, or the loss of any material benefit under, or reasonably be expected
to cause any Governmental Entity to institute proceedings for the suspension, revocation
or limitation of rights under, any material Permit necessary to conduct its businesses as
now being conducted; |
| (xxv) | enter into any Contract containing any
provision restricting or triggered by the transactions contemplated by this Agreement; |
| (xxvi) | except as contemplated in Section 4.09,
amend, modify, terminate or allow to lapse any insurance policy of EMV or any of its Subsidiaries
in effect on the date hereof, unless simultaneously with any such termination or lapse, a
replacement policy underwritten by an insurance company of similar standing having comparable
deductions and providing coverage equal to or greater than the coverage under the terminated
or lapsed policy for substantially similar premiums or less is in full force and effect; |
| (xxvii) | engage in any reorganization, reclassification,
or similar transaction or adopt a plan of liquidation or resolution providing for the liquidation,
dissolution or winding up of EMV or any of its Subsidiaries; |
| (xxviii) | take any action which would render,
or which reasonably may be expected to render, any representation or warranty made by EMV
in this Agreement untrue or inaccurate in any material respect (disregarding for this purpose
all materiality or Material Adverse Change qualifications contained therein) at any time
prior to the Effective Date if then made; |
| (xxix) | dispose of all or any part of the EMV
Solo Business; or |
| (xxx) | authorize, agree, resolve or otherwise
commit, whether or not in writing, to do any of the foregoing. |
| 4.02 | Conduct of Business of
Tevva |
Except as set forth in
Section 4.02 of the Tevva Disclosure Letter, Tevva covenants and agrees that during the period from the date of this Agreement until
the earlier of the Effective Date and the time that this Agreement is terminated in accordance with its terms, except as expressly permitted
or required by this Agreement or the Plan of Arrangement, as required by applicable law or a Governmental Entity, or unless EMV otherwise
consents in writing, such consent not to be unreasonably withheld, conditioned or delayed:
| (a) | to conduct business, and cause its Subsidiaries
to conduct business, in the Ordinary Course and in compliance, in all material respects,
with all applicable laws and Material Contracts of Tevva; |
| (b) | without limiting the generality of Section
4.02(a), to use commercially reasonable efforts to preserve intact the current business organization
of Tevva and its Subsidiaries, keep available the services of the present employees and agents
of Tevva and its Subsidiaries and maintain good relations with, and the goodwill of, suppliers,
customers, landlords, creditors, distributors and all other persons having business relationships
with Tevva; |
| (c) | to use commercially reasonable efforts
to secure such financing (provided that, except as may be agreed by Tevva and EMV, such financing
does not involve the issuance or potential issuance of any equity securities of Tevva, or
securities or instruments that are convertible into equity securities of Tevva, following
the Effective Time) as is necessary to continue normal operations until the Effective Time
and to promptly (and in any event within two Business Days) notify EMV of (i) the execution
of any non-disclosure agreement with a potential investor, (ii) the receipt of an initial
or subsequent term sheet, or any amendment thereto, from such potential investor, and (iii)
the expected date of approval by the Tevva Board (the “Financing Approval Date”)
of such term sheet (with the Financing Approval Date to be at least three Business Days after
EMV is notified of the Financing Approval Date pursuant to this Section 4.02(c)). Tevva shall
promptly provide to EMV any information reasonably requested by EMV with respect to such
financing, including but not limited to (i) the identity of the investor or proposed investor,
(ii) a copy of any term sheet, (iii) the aggregate and per share valuation of Tevva upon
which such financing is or is to be based and (iv) details of any other key terms of such
financing, including the terms of any convertible securities proposed to be issued pursuant
to such financing; |
| (d) | except for transactions involving Tevva
and one or more of its Subsidiaries or between Subsidiaries of Tevva, to not, and not permit
any of its Subsidiaries to, directly or indirectly: |
| (i) | other than pursuant to the Tevva Transaction
Resolutions, amend the Constating Documents of the applicable entity; |
| (ii) | split, combine or reclassify any of its
shares, declare, set aside or pay any dividend or other distribution (whether in cash, stock
or property or any combination thereof) or amend any term of any outstanding debt security; |
| (iii) | adopt or materially amend or make any
contribution to or any award under any stock option plan, restricted share unit plan, deferred
share unit plan, performance share unit plan or other bonus, profit sharing, option, pension,
retirement, deferred compensation, insurance, incentive compensation, compensation or other
similar plan, agreement, trust, fund or arrangement for the benefit of directors or officers
or former directors or officers of Tevva or its Subsidiaries; |
| (iv) | redeem, repurchase, or otherwise acquire
or offer to redeem, repurchase or otherwise acquire any shares of its capital stock; |
| (v) | issue, deliver, sell, pledge or otherwise
encumber, or authorize the issuance, delivery, sale, pledge or other encumbrance of any shares
of its capital stock or other equity or voting interests, or any options, warrants or similar
rights exercisable or exchangeable for or convertible into such capital stock or other equity
or voting interests, or any stock appreciation rights, phantom stock awards or other rights
that are linked to the price or the value of Tevva Shares, except for the issuance of Tevva
Shares issuable upon the exercise or vesting of Tevva Options, Tevva Warrants or other convertible
securities of Tevva outstanding on the date of this Agreement in accordance with the terms
thereof or pursuant to a financing contemplated in Section 4.02(c); |
| (vi) | acquire (by merger, consolidation, acquisition
of stock or assets or otherwise), directly or indirectly, in one transaction or in a series
of related transactions, any material assets, securities, properties, interests or businesses; |
| (vii) | sell, lease, transfer, encumber or otherwise
dispose of any of its assets or any interest therein except for assets which are obsolete
and which individually or in the aggregate do not exceed $150,000; |
| (viii) | enter into any lease or sublease of real
property (whether as a lessor, sublessor, lessee or sublessee) with an annual rental amount
in excess of $150,000, or modify, amend or exercise any right to renew any lease or sublease
of real property or acquire any interest in real property; |
| (ix) | make any capital expenditure or capital
commitment to do so which individually or in the aggregate exceeds $500,000; |
| (x) | prepay any indebtedness before it falls
due or increase, create, incur, assume or otherwise become liable for any indebtedness for
borrowed money or guarantees thereof; |
| (xi) | make any loan or advance to, or any capital
contribution or investment in, or assume, guarantee or otherwise become liable with respect
to the liabilities or obligations of, any person; |
| (xii) | enter into any interest rate, currency,
equity or commodity swaps, hedges, derivatives, forward sales contracts or similar financial
instruments; |
| (xiii) | engage in any new business, enterprise
or other activity that is inconsistent with the existing business of Tevva or its applicable
Subsidiary in the manner such existing business generally has been carried on or planned
or proposed to be carried on prior to the date of this Agreement; |
| (xiv) | create any Subsidiary or enter into any
Contracts or other arrangements regarding the control or management of the operations, or
the appointment of governing bodies or enter into any joint ventures; |
| (xv) | (A) make, amend or rescind any Tax election,
(B) amend any Tax Return or take any position on any Tax Return that results in an increased
Tax liability, (C) settle or compromise any material liability for Taxes, (D) enter into
any Tax allocation, Tax sharing, Tax indemnity or other agreement relating to any Taxes,
or (E) surrender or forfeit any right to claim a Tax refund; |
| (xvi) | take any action with respect to the computation
of Taxes or the preparation of Tax Returns that is in any material respect inconsistent with
past practice; |
| (xvii) | other than in the Ordinary Course, make
any bonus or profit sharing distribution or similar payment of any kind; |
| (xviii) | make any change in Tevva’s or
any of its Subsidiaries’ methods of accounting, except as required by concurrent changes
in IFRS; |
| (xix) | (A) increase any severance, change of
control or termination pay to (or amend any existing arrangement with) any Tevva Employee
or director or officer of Tevva or any of its Subsidiaries; (B) increase the benefits payable
under any existing severance or termination pay policies with any Tevva Employee or director
or officer of Tevva or any of its Subsidiaries; (C) increase the benefits payable under any
employment or other agreements with any Tevva Employee or director or officer of Tevva or
any of its Subsidiaries; (D) enter into any employment, deferred compensation or other similar
agreement (or amend any such existing agreement) with any director or officer of Tevva or
any of its Subsidiaries; (E) enter into any employment or other similar agreement with any
person which includes any change of control provision or any provision for severance or termination
pay in excess of the statutory minimum; (F) increase compensation, bonus levels or other
benefits payable to any Tevva Employee or director or officer of Tevva or any of its Subsidiaries
(other than, in the case of a Tevva Employee who is not a director or officer of Tevva, in
a manner consistent with past practice); or (G) take any action to accelerate the time of
payment of any compensation or benefits, amend or waive any performance or vesting criteria
or accelerate vesting under any compensation plan; |
| (xx) | cancel, waive, release, assign, settle
or compromise any claims or rights, except in the Ordinary Course (provided that any such
cancellation, waiver, release, assignment, settlement or compromise is not individually in
an amount of more than $250,000); |
| (xxi) | compromise or settle any Proceeding (A)
with a compromise or settlement value in excess of $250,000 (exclusive of amounts not covered
by insurance), (B) that imposes injunctive or other non-monetary relief on Tevva or any Subsidiary
of Tevva or (c) that is otherwise material to Tevva or any Subsidiary of Tevva; |
| (xxii) | commence any action, claim or other Proceeding
(other than to enforce the terms of this Agreement, to enforce other obligations of EMV or
as a result of litigation commenced against Tevva); |
| (xxiii) | amend or modify in any material respect,
or terminate or waive any right under, any Material Contract of Tevva or enter into any Contract
that would be a Material Contract of Tevva if in effect on the date hereof; |
| (xxiv) | make an application to amend, terminate,
allow to expire or lapse or otherwise modify any of its material Permits or take any action
or fail to take any action which action or failure to act would result in the material loss,
expiration or surrender of, or the loss of any material benefit under, or reasonably be expected
to cause any Governmental Entity to institute proceedings for the suspension, revocation
or limitation of rights under, any material Permit necessary to conduct its businesses as
now being conducted; |
| (xxv) | enter into any Contract containing any
provision restricting or triggered by the transactions contemplated by this Agreement; |
| (xxvi) | except as contemplated in Section 4.09,
amend, modify, terminate or allow to lapse any insurance policy of Tevva or any of its Subsidiaries
in effect on the date hereof, unless simultaneously with any such termination or lapse, a
replacement policy underwritten by an insurance company of similar standing having comparable
deductions and providing coverage equal to or greater than the coverage under the terminated
or lapsed policy for substantially similar premiums or less is in full force and effect; |
| (xxvii) | engage in any reorganization, reclassification,
or similar transaction or adopt a plan of liquidation or resolution providing for the liquidation,
dissolution or winding up of Tevva or any of its Subsidiaries; |
| (xxviii) | take any action which would render,
or which reasonably may be expected to render, any representation or warranty made by Tevva
in this Agreement untrue or inaccurate in any material respect (disregarding for this purpose
all materiality or Material Adverse Change qualifications contained therein) at any time
prior to the Effective Date if then made; |
| (xxix) | grant, modify, agree to terminate or
permit the lapse of any of the Tevva Owned IP, or enter into any agreement relating
to any such rights;or |
| (xxx) | authorize, agree, resolve or otherwise
commit, whether or not in writing, to do any of the foregoing. |
| (a) | Each Transacting Party covenants and agrees
that, except as expressly contemplated in this Agreement, during the period from the date
of this Agreement until the earlier of the Effective Time and the time that this Agreement
is terminated in accordance with its terms: |
| (i) | it shall, and shall cause its Subsidiaries
to, use commercially reasonable efforts to satisfy (or cause the satisfaction of) the conditions
precedent to its obligations hereunder as set forth in Article 7 to the extent the same
is within its control and to take, or cause to be taken, all other actions and to do, or
cause to be done, all other things necessary, proper or advisable under all applicable laws
to complete the transactions contemplated by this Agreement, including using commercially
reasonable efforts to: |
| (A) | co-operate with the other Party in connection
with the performance by it and its Subsidiaries of their obligations hereunder; |
| (B) | carry out such actions as are necessary
to ensure the availability of the exemption from registration under Section 3(a)(10) of the
U.S. Securities Act; and |
| (C) | oppose, lift or rescind any injunction,
restraining or other order, decree or ruling seeking to restrain, enjoin or otherwise prohibit
or adversely affect the consummation of the Arrangement and defend, or cause to be defended,
any Proceedings to which it is a party or brought against it or its directors or officers
challenging the Arrangement or this Agreement; |
| (ii) | it shall not take any action, or refrain
from taking any commercially reasonable action, or permit any action to be taken or not taken,
which is inconsistent with this Agreement or which would reasonably be expected to, individually
or in the aggregate, prevent, materially delay or otherwise materially impede the consummation
of the transactions contemplated by this Agreement; |
| (iii) | it shall forthwith carry out the terms
of the Interim Order and Final Order to the extent applicable to it and take all necessary
actions to give effect to the transactions contemplated by this Agreement, and comply promptly
with all requirements imposed by applicable law on it or its Subsidiaries with respect to
this Agreement or the Arrangement; and |
| (iv) | it will use commercially reasonable efforts
to execute and do all acts, further deeds, things and assurances as may be required in the
reasonable opinion of the other Party’s legal counsel to permit the consummation of
the transactions contemplated by this Agreement. |
| (b) | Each Transacting Party, as applicable
to that Transacting Party, covenants and agrees with respect to obtaining all Regulatory
Approvals required for the completion of the transactions contemplated by this Agreement,
subject to the terms and conditions of this Agreement, to use its commercially reasonable
efforts to make, or cause to be made, all filings and applications with, and give all notices
and submissions to Governmental Entities as soon as reasonably practicable upon execution
of this Agreement, and in any event within any time period specified by any Governmental
Entities. For greater certainty and without limiting the generality of the foregoing, each
Transacting Party shall: |
| (i) | use its commercially reasonable efforts
to obtain all required Regulatory Approvals and shall cooperate with the other Transacting
Party in connection with all Regulatory Approvals sought by the other Transacting Party; |
| (ii) | use its commercially reasonable efforts
to respond promptly to any request or notice from any Governmental Entity requiring that
Transacting Party to supply additional information that is relevant to the review of the
transactions contemplated by this Agreement in respect of obtaining or concluding the Regulatory
Approvals sought by either Transacting Party, and each Transacting Party shall cooperate
with the other Transacting Party and shall furnish to the other Transacting Party such information
and assistance as the other Transacting Party may reasonably request in connection with preparing
any submission or responding to such request or notice from a Governmental Entity; |
| (iii) | permit the other Transacting Party an
opportunity to review in advance any proposed substantive applications, notices, filings,
submissions, undertakings, correspondence and communications (including responses to requests
for information and inquiries from any Governmental Entity) in respect of obtaining or concluding
all required Regulatory Approvals, and shall provide the other Transacting Party with a reasonable
opportunity to comment thereon and agree to consider those comments in good faith; |
| (iv) | shall provide the other Transacting Party
with any substantive applications, notices, filings, submissions, undertakings or other substantive
correspondence provided to a Governmental Entity, or any substantive communications received
from a Governmental Entity, in respect of obtaining or concluding the required Regulatory
Approvals; and |
| (v) | keep the other Transacting Party reasonably
informed on a timely basis of the status of discussions relating to obtaining or concluding
the required Regulatory Approvals sought by such Transacting Party and, for greater certainty,
no Transacting Party shall participate in any substantive meeting (whether in person, by
telephone or otherwise) with a Governmental Entity in respect of obtaining or concluding
the required Regulatory Approvals unless it advises the other Transacting Party in advance
and gives such other Transacting Party an opportunity to attend. |
save that in relation
to all disclosures between the Transacting Parties under this Section 4.03(b), any confidential or commercially sensitive information
shall be disclosed on a confidential "counsel to counsel" basis only between the outside counsel of the Transacting Parties.
| (c) | Each Transacting Party (in this Section
4.03(c), the “informing Party”) shall promptly inform the other Transacting
Party of: |
| (i) | any Material Adverse Change in respect of
the informing Party or any change, effect, event, development, occurrence, circumstance or
state of facts which would reasonably be expected to have a Material Adverse Change in respect
of the informing Party; |
| (ii) | any notice or other communication from
any person alleging that the consent (or waiver, permit, exemption, order, approval, agreement,
amendment or confirmation) of such person is required in connection with this Agreement or
the Arrangement; |
| (iii) | any notice or other communication from
any Governmental Entity in connection with this Agreement (and the informing Party shall
contemporaneously provide a copy of any such written notice or communication to the other
Party); or |
| (iv) | any material Proceeding commenced or, to
its knowledge, threatened against, relating to or involving or otherwise affecting the informing
Party, its Subsidiaries or its or their respective assets. |
| (d) | The Transacting Parties shall meet at
a mutually agreeable time each week prior to the Effective Date to review the cash forecasts
of each Transacting Party. |
| (e) | The Parties shall maintain the confidentiality
of any information received from each other in connection with the Arrangement, whether received
before or after the Effective Date. If the Arrangement is not completed, each Party shall
return any and all such information, including but not limited to personal information, confidential
information, data, documents, and other written and electronic information obtained from
another Party in connection with this Agreement whether received before or after the Effective
Time, and the Parties agree that, except as otherwise authorized by the Party that provided
such information, no Party (or any of its representatives, agents or employees) will disclose
to third parties any such information, or any matter related thereto discovered by a Party
or its representatives as a result of the disclosure of such information. |
| (f) | The Transacting Parties shall take commercially
reasonable steps to ensure that prior to the Effective Time either: (i) all or some of the
Tevva Options, Tevva Warrants and Tevva indebtedness that are convertible into Tevva Shares
are converted into Tevva Shares in sufficient time to ensure that such Tevva Shares participate
in the Holdco Share Transfer, or (ii)if the Transacting Parties are unable to ensure that
the conversion of Tevva Options, Tevva Warrants and Tevva indebtedness contemplated in the
foregoing sentence can be achieved, then prior to the Effective Time the Transacting Parties
will take commercially reasonable steps to procure that agreement is reached with each applicable
Tevva Securityholder providing for either (iii) the conversion of his, her or its Tevva Options,
Tevva Warrants and convertible Tevva indebtedness into Resulting Issuer Shares following
the Effective Time in a manner that does not dilute holders of Resulting Issuer Shares that
were EMV Shareholders immediately prior to the issuance to EMV Shareholders of Resulting
Issuer Shares under the Plan of Arrangement, or (iv) the release, surrender or waiver of
or some other arrangement relating to their rights in respect of their Tevva Options, Tevva
Warrants and Tevva indebtedness which allow such to be converted into Tevva Shares (which
may be in return for consideration which may be satisfied by options, warrants or some other
rights in relation to other shares or equity securities). For certainty, in this Section
4.3(f), any reference to Tevva Options, Tevva Warrants and Tevva indebtedness refers to options,
warrants and indebtedness of Tevva, respectively, issued and outstanding at any time before
the Effective Time. |
| 4.04 | Additional Covenants
of EMV Regarding the Arrangement |
Subject to the terms and
conditions of this Agreement, EMV shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to perform all obligations
required to be performed by EMV or its Subsidiaries under this Agreement, cooperate with Tevva in connection therewith, and use commercially
reasonably efforts to take or cause to be taken all actions and to do or cause to be done all things necessary, proper or advisable under
applicable law to consummate the Arrangement and the other transactions contemplated by this Agreement as soon as practicable, including:
| (a) | immediately after the execution of this
Agreement, or such later time prior to the next opening of markets in New York as is agreed
to by EMV and Tevva, issuing a news release announcing the entering into of this Agreement
and the matters described in Sections 2.04(b)(iii) and 2.04(b)(iv), which news release shall
be satisfactory in form and substance to each of EMV and Tevva, each acting reasonably, and,
thereafter, file such news release and a corresponding material change report in prescribed
form in accordance with applicable Securities Laws; |
| (b) | obtaining and maintaining all other third
party or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments
or confirmations that are (i) required to be obtained under the Material Contracts of EMV
in order to complete the Arrangement or (ii) required in order to maintain the Material Contracts
of EMV in full force and effect following completion of the Arrangement (the “EMV
Key Consents”); and |
| (c) | obtaining any necessary approvals for
the listing of the Resulting Issuer Shares on the Nasdaq following the Effective Date. |
| 4.05 | Additional Covenants
of Tevva Regarding the Arrangement |
| (a) | Subject to the terms and conditions of
this Agreement, Tevva shall, and shall cause its Subsidiaries to, use commercially reasonable
efforts to perform all obligations required to be performed by Tevva or its Subsidiaries
under this Agreement, cooperate with EMV in connection therewith, and use commercially reasonably
efforts to take or cause to be taken all actions and to do or cause to be done all things
necessary, proper or advisable under applicable law to consummate the Arrangement and the
other transactions contemplated by this Agreement as soon as practicable, including: |
| (i) | procuring the completion of the Holdco Share
Transfer in accordance with Section 4.10; and |
| (ii) | obtaining and maintaining all third party
or other consents, waivers, permits, exemptions, orders, approvals, agreements, amendments
or confirmations that are (A) required to be obtained under the Finance Documents in connection
with the transactions contemplated by this Agreement, including the Arrangement and the Holdco
Share Transfer, (B) required to be obtained under the Material Contracts of Tevva in connection
with the transactions contemplated by this Agreement, (C) required in order to maintain the
Material Contracts of Tevva in full force and effect following completion of the transactions
contemplated by this Agreement or (D) required to be obtained under or in relation to any
agreement of Tevva with a party other than EMV following the execution of this Agreement
(the “Tevva Key Consents”). |
| (b) | Tevva shall use its best efforts to: |
| (i) | complete and file at Companies House (UK)
or cause to be completed and filed at Companies House (UK) the Tevva Financial Statements; |
| (ii) | complete or cause to be completed Tevva’s
interim unaudited financial statements for the fiscal period ended June 30, 2023; |
| (iii) | complete and file at HM Revenue &
Customs or cause to be completed and filed at HM Revenue & Customs Tevva’s 2021
Corporation Tax Return and 2022 Corporation Tax Return, and to pay any penalties in respect
of the late filing thereof; and |
| (iv) | provide EMV with all subscription agreements
entered into by Alexander Capital in relation to subscriptions by Alexander Capital for Tevva
Ordinary Shares, including any such agreements entered into between the date of this Agreement
and the Effective Time, |
in each case as soon
as reasonably practicable after the date of this Agreement.
| (c) | Tevva shall procure that its register
of members is up to date and compliant with section 113 of CA 2006 immediately prior to the
Holdco Share Transfer. |
| (d) | Tevva shall provide EMV or the Nasdaq
with any documents or disclosures reasonably required by EMV or the Nasdaq in connection
with the listing of the Resulting Issuer Shares on the Nasdaq after consummation of the Arrangement. |
| (e) | Tevva shall procure that all rents which
were due to have been paid pursuant to the lease dated September 28, 2021 between (i) Travis
Perkins (Properties) Limited and (ii) Tevva relating to Unit 6 London Distribution Park Lying
to the East of Dock Road, Tilbury (the “Tilbury Lease”) up to and including
the date of completion of the Holdco Share Transfer are paid to the landlord of the Tilbury
Lease (or as the landlord so directs) in cleared funds including, for the avoidance of doubt,
all arrears. |
| (f) | Tevva shall (as soon as reasonably practicable
after August 14, 2023) carry out relevant due diligence on the Tevva Shareholders and obtain
necessary UK tax advice to determine whether or not an HM Revenue and Customs clearance is
required or advisable. |
| (a) | Subject to Section 4.06(b), EMV shall
use its commercially reasonable efforts to, and to cause its Representatives to, provide
such cooperation to Tevva as Tevva may reasonably request in connection with the arrangements
by Tevva to obtain new or amend any existing credit facilities, issue securities privately,
or waive or amend the terms of, exchange, or seek or solicit consents in respect of existing
debt securities (each a “Financing Matter”), subject to the terms hereof
(provided that: (A) to the extent reasonably practicable, such request is made on reasonable
notice; (B) such cooperation does not unreasonably interfere with the ongoing operations
of EMV and its Subsidiaries or unreasonably interfere with or hinder or delay the performance
by EMV or any of its Subsidiaries of their obligations hereunder; and (C) any actions taken
hereunder are in compliance with Sections 4.01 and 4.02), including one or more of the following
cooperative actions as so requested: |
| (i) | participating in meetings (including meetings
with rating agencies), drafting sessions and due diligence sessions; |
| (ii) | furnishing Tevva and its proposed lenders
or underwriters with such financial and other pertinent information regarding itself as may
be reasonably requested by Tevva; |
| (iii) | cooperating with Tevva in facilitating
site visits of potential investors at EMV’s facility in Mesa, Arizona; |
| (iv) | cooperating with Tevva in connection with
applications to obtain such consents, approvals or authorizations which may be reasonably
necessary or desirable in connection with such Financing Matter; |
| (v) | using its commercially reasonable efforts
to obtain customary accountants’ comfort letters, legal opinions and other documentation
and items relating to such Financing Matter as may be reasonably requested by Tevva and,
if requested by Tevva, to cooperate with and assist Tevva in obtaining such documentation
and items; and |
| (vi) | taking all corporate actions reasonably
requested by Tevva that are necessary or customary to permit the consummation of such Financing
Matter. |
| (b) | Notwithstanding
Section 4.06(a), neither EMV nor any of its Subsidiaries shall be required by Tevva to (i)
pay any commitment, consent or other similar fee or incur any other liability in connection
with any Financing Matter, (ii) take or omit to take any action that would (A) contravene
any applicable law, (B) contravene any agreement that relates to borrowed money or (C) be
capable of impairing or preventing the satisfaction of any condition set forth in Article 7,
(iii) commit to take any action that is not contingent on the consummation of the transactions
contemplated by this Agreement at the Effective Time, or (iv) except as required to comply
with applicable laws, disclose any information that in the reasonable judgment of EMV would
result in the disclosure of any Trade Secrets or similar information or violate any obligations
of EMV or any other person with respect to confidentiality. |
| (c) | Tevva
agrees to indemnify and save harmless EMV and its Subsidiaries and their respective officers,
directors, employees, agents, advisors and other Representatives from and against any and
all liabilities, losses, damages, claims, costs, expenses, interest awards, judgments and
penalties suffered or incurred by any of them in connection with any actions or omissions
by any of them in connection with any request by Tevva made pursuant to this Section 4.06,
except that Tevva shall not be liable in any such case to the extent that any such liabilities,
losses, damages, claims, costs, expenses, interest awards, judgments and penalties arise
out of the fraud, negligence or willful misconduct of EMV. Tevva shall promptly upon request
by EMV and from time to time reimburse EMV and its Subsidiaries for all reasonable out-of-pocket
costs (including legal fees) incurred by EMV or its Subsidiaries and their Representatives
in connection with any of the actions contemplated by this Section 4.06. |
| 4.07 | Access to Information;
Confidentiality |
| (a) | Subject to applicable law, each Transacting
Party shall, and shall cause its Subsidiaries to, provide the other Transacting Party and
its Representatives: |
| (i) | upon reasonable notice, reasonable access
during normal business hours to its (A) premises, (B) property and assets (including all
books and records, whether retained internally or otherwise), (C) copies of Contracts, and
(D) senior personnel, so long as the access does not unduly interfere with the Ordinary Course
conduct of its business; and |
| (ii) | with such financial and operating data
or other information with respect to the assets or business of such Transacting Party and
its Subsidiaries as the other Transacting Party from time to time reasonably requests. |
| (b) | Investigations made by or on behalf of
a Transacting Party, whether under this Section 4.07 or otherwise, will not waive, diminish
the scope of, or otherwise affect any representation or warranty made by the other Transacting
Party in this Agreement. |
| (c) | Each Transacting Party acknowledges that
the Confidentiality Agreement continues to apply and that any information provided to a Transacting
Party under this Section 4.07 that is non-public or proprietary in nature to the other Transacting
Party shall be subject to the terms of the Confidentiality Agreement. If this Agreement is
terminated in accordance with its terms, the obligations under the Confidentiality Agreement
shall survive the termination of this Agreement. |
| 4.08 | Notice and Cure Provisions |
| (a) | Each Party shall promptly notify the other
Parties of the occurrence, or failure to occur, of any event or state of facts that would,
or would be reasonably likely to, result in the failure to comply with or satisfy any closing
condition to be complied with or satisfied by such Party under this Agreement. |
| (b) | Notification provided under this Section
4.08 shall not affect the representations, warranties, covenants, agreements or obligations
of the Parties (or remedies with respect thereto) or the conditions to the obligations of
the Parties under this Agreement. |
| (c) | EMV may not elect to exercise its right
to terminate this Agreement pursuant to Section 8.01(c)(i) and Tevva may not elect to exercise
its right to terminate this Agreement pursuant to Section 8.01(d)(i) unless the Transacting
Party seeking to terminate this Agreement (the “Terminating Party”) has
delivered a written notice (“Termination Notice”) to the other Transacting
Party (the “Breaching Party”) specifying in reasonable detail all breaches
of covenants, representations and warranties or other matters which the Terminating Party
asserts as the basis for termination. After delivering a Termination Notice, provided the
Breaching Party is proceeding diligently to cure such matter and such matter is capable of
being cured prior to the Outside Date (with any intentional breach being deemed to be incurable),
the Terminating Party may not exercise such termination right until the earlier of (i) the
Outside Date, and (ii) the date that is 10 Business Days following receipt of such Termination
Notice by the Breaching Party, if such matter has not been cured by such date. Unless the
Transacting Parties agree otherwise, if the Terminating Party delivers a Termination Notice
prior to: |
| (i) | the date of the EMV Meeting, EMV shall postpone
or adjourn the EMV Meeting to the earlier of (A) five Business Days prior to the Outside
Date and (B) the date that is 10 Business Days following receipt of such Termination Notice
by the Breaching Party; and |
| (ii) | the date of the Tevva Meeting, Tevva shall
postpone or adjourn the Tevva Meeting to the earlier of (A) five Business Days prior to the
Outside Date and (B) the date that is 10 Business Days following receipt of such Termination
Notice by the Breaching Party. |
| 4.09 | Insurance and Indemnification |
| (a) | Prior to the Effective Date, each Transacting
Party shall purchase customary “tail” policies of directors’ and officers’
liability insurance providing protection no less favourable in the aggregate to the protection
provided by the policies maintained by such Transacting Party and its Subsidiaries which
are in effect immediately prior to the Effective Date and providing protection in respect
of claims arising from facts or events which occurred on or prior to the Effective Date and
such Transacting Party shall maintain such tail policies in effect without any reduction
in scope or coverage for six years from the Effective Date. |
| (b) | The Transacting Parties agree that all
rights to indemnification existing in favour of the present and former directors and officers
of each Transacting Party (such persons collectively being referred to as the “Indemnified
Parties”) as provided by contracts or agreements to which such Transacting Party
is a party and in effect as of the date of this Agreement, that are fully and completely
disclosed in the EMV Disclosure Letter or Tevva Disclosure Letter, as the case may be, and
copies of which are provided to the other Transacting Party prior to the date of this Agreement,
and, as of the Effective Time, will survive and will continue in full force and effect and
without modification, and such Transacting Party and any successor to such Transacting Party
shall continue to honour such rights of indemnification and indemnify the Indemnified Parties
pursuant thereto, with respect to actions or omissions of the Indemnified Parties occurring
prior to the Effective Time, for six years following the Effective Date. |
| 4.10 | Holdco Share Transfer |
| (a) | Prior to the completion of the Holdco
Share Transfer in accordance with this Section 4.10, Holdco and Parentco shall, if jointly
requested by both EMV and Tevva, cause the Constating Documents of Holdco and Parentco to
be amended on such terms as are requested by EMV and Tevva. |
| (b) | Subject to the conditions in Article 7
(excluding the condition set forth in Section 7.01(e)) having been satisfied or waived by
the Parties, as applicable, to the extent capable of being satisfied or waived prior to the
Effective Time, the Parties shall cause: |
| (i) | Holdco to purchase, and the Tevva Shareholders
to sell, prior to the Effective Time, all of the issued Tevva Shares, in the case of the
Tevva A Ordinary Shares for nil consideration and in the case of the Tevva Ordinary Shares
in consideration for the issuance to the holders of such Tevva Ordinary Shares by Holdco
of Holdco Shares (the “Holdco Share Transfer”); Tevva and Holdco hereby
acknowledge their intentions that the Holdco Share Transfer is to be undertaken, at the request
of a Tevva Eligible Holder, on a tax deferred basis under the Tax Act. Holdco shall execute
any joint tax election under subsections 85(1) or 85(2) of the Tax Act and any equivalent
provincial legislation prepared and executed by such Tevva Eligible Holder, in prescribed
form and within the time referred to in subsection 85(6) of the Tax Act, and any equivalent
provincial legislation, to exchange the Tevva Shares for the Holdco Shares at the elected
amount as determined by such Tevva Eligible Holder, in its sole discretion, within the limits
of the Tax Act; and |
| (ii) | contemporaneously with the Holdco Share
Transfer, Holdco to repurchase for cancellation all of the Holdco Shares held by the Initial
Holdco Shareholder for the issue price of such Holdco Shares, |
such that, upon completion of the Holdco Share Transfer and
prior to, and as a condition precedent to, the commencement of the Arrangement, (A) the Tevva Ordinary Shareholders have obtained legal
and beneficial ownership of Holdco Shares, (B) Holdco is the sole registered and beneficial owner of all Tevva Shares, and (C) the Initial
Holdco Shareholder has no legal or beneficial interest in the capital of Holdco.
| (c) | Without limiting Section 4.10(b), Tevva
shall prepare, prior to the Effective Time, all documentation necessary and shall do such
other acts and things as are necessary to give effect to the Holdco Share Transfer immediately
prior to the Effective Time, including: |
| (i) | incorporating, to the extent reasonably
necessary, the steps of the Holdco Share Transfer into the Tevva Circular; and |
| (ii) | ensuring that the steps of the Holdco Share
Transfer that Tevva is responsible for are carried out in accordance with applicable law. |
| (d) | Each Party acknowledges and agrees that
the implementation of the Holdco Share Transfer shall not be considered a breach of any covenant
of a Party under this Agreement and shall not be considered in determining whether a representation
or warranty of a Party under this Agreement has been breached. |
| (e) | Holdco will take, and Tevva (to the extent
reasonably able) and EMV shall procure that Holdco takes, all reasonable steps to
expedite the payment to HM Revenue and Customs of any UK stamp duty payable on the Tevva
Share stock transfer forms arising from the Holdco Share Transfer once stock transfer forms
in respect of the Tevva Shares duly executed in favour of Holdco have been provided to Holdco,
and write up the statutory books and registers of Tevva as soon as practicable after HM Revenue
and Customs has confirmed that such stock transfer forms have been duly stamped. EMV, Holdco
and Tevva shall cooperate to seek confirmation from HMRC that no UK stamp duty is payable
as a result of the amalgamation of Parentco and Holdco pursuant to the Arrangement. |
Article 5
–
ADDITIONAL COVENANTS REGARDING EMV NON-SOLICITATION
| (a) | Except as expressly otherwise provided
in this Article 5, EMV shall not, directly or indirectly, through any Representative,
or otherwise, and shall not permit any such person to: |
| (i) | solicit, initiate, encourage or otherwise
facilitate (including by way of furnishing or providing copies of, access to, or disclosure
of, any confidential information, properties, facilities, books or records of EMV or any
of its Subsidiaries or entering into any form of agreement, arrangement or understanding)
any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute
or lead to, an EMV Acquisition Proposal; |
| (ii) | enter into or otherwise engage or participate
in any discussions or negotiations with any person (other than Tevva) regarding any inquiry,
proposal or offer that constitutes, or may reasonably be expected to constitute or lead to,
an EMV Acquisition Proposal; |
| (iii) | make an EMV Change in Recommendation; |
| (iv) | accept, approve, endorse or recommend,
or publicly propose to accept, approve, endorse or recommend, or take no position or remain
neutral with respect to, any EMV Acquisition Proposal (it being understood that publicly
taking no position or a neutral position with respect to an EMV Acquisition Proposal for
a period of no more than five Business Days following the formal announcement of such EMV
Acquisition Proposal will not be considered to be in violation of this Section 5.01, provided
the EMV Board has rejected such EMV Acquisition Proposal and affirmed the EMV Board Recommendation
before the end of such five Business Day period (or in the event that the EMV Meeting is
scheduled to occur within such five Business Day period, prior to the third Business Day
prior to the date of the EMV Meeting)); or |
| (v) | enter into or publicly propose to enter
into any agreement in respect of an EMV Acquisition Proposal (other than a confidentiality
agreement permitted by and in accordance with Section 5.03). |
| (b) | EMV shall confirm, and shall cause its
Subsidiaries and its Representatives to confirm, that it has ceased and terminated any solicitation,
encouragement, discussion, negotiations, or other activities commenced prior to the date
of this Agreement with any person (other than Tevva) with respect to any inquiry, proposal
or offer that constitutes, or may reasonably be expected to constitute or lead to, an EMV
Acquisition Proposal, and in connection with such termination: |
| (i) | has discontinued access to and disclosure
of all information, including any data room and any confidential information, properties,
facilities, books and records of EMV or any of its Subsidiaries including by way of such
online data room or other electronic delivery method; and |
| (ii) | shall, as soon as practicable and within
three Business Days after the date of this Agreement, request and exercise all rights it
has to require (A) the return or destruction of all copies of any confidential information
regarding EMV or any of its Subsidiaries provided to any person (other than Tevva), and (B)
the destruction of all material including or incorporating or otherwise reflecting such confidential
information regarding EMV or any of its Subsidiaries, using its commercially reasonable efforts
to ensure that such requests are fully complied with in accordance with the terms of such
rights or entitlements. |
| (c) | EMV represents and warrants that EMV has
not waived any confidentiality, standstill or similar provision or restriction in any agreement
to which EMV or any of its Subsidiaries is a party, except to permit submissions of expressions
of interest prior the date of this Agreement, and covenants and agrees that: |
| (i) | EMV shall take all necessary action to enforce
each confidentiality, standstill or similar provision or restriction in any agreement to
which EMV or any of its Subsidiaries is a party; and |
| (ii) | neither EMV, nor any of its Subsidiaries
nor any of their respective Representatives have released or will, without the prior written
consent of Tevva (which may be withheld or delayed in Tevva’s sole and absolute discretion),
release any person from, or waive, amend, suspend or otherwise modify such person’s
obligations respecting EMV or any of its Subsidiaries, under any confidentiality, standstill
or similar provision or restriction in any agreement to which EMV or any of its Subsidiaries
is a party. |
| 5.02 | Notification of EMV Acquisition
Proposals |
If EMV or any of its Subsidiaries
or any of their respective Representatives receives or otherwise becomes aware of any inquiry, proposal or offer that constitutes or
may reasonably be expected to constitute or lead to an EMV Acquisition Proposal, or any request for copies of, access to, or disclosure
of, confidential information relating to EMV or any of its Subsidiaries, including but not limited to information, access, or disclosure
relating to the properties, facilities, books or records of EMV or any of its Subsidiaries, EMV shall immediately notify Tevva, at first
orally, and then promptly and in any event within 48 hours in writing, of such EMV Acquisition Proposal, inquiry, proposal, offer or
request, including a description of its material terms and conditions, the identity of all persons making such EMV Acquisition Proposal,
inquiry, proposal, offer or request, and copies of all material or substantive documents, correspondence or other material received in
respect of, from or on behalf of any such person. EMV will keep Tevva fully informed on a current basis of the status of developments
and (to the extent EMV is permitted by Section 5.03 to enter into discussions and negotiations) discussions and negotiations with respect
to such EMV Acquisition Proposal, inquiry, proposal, offer or request, including any material changes, modifications or other amendments
thereto.
| 5.03 | Responding to an EMV
Acquisition Proposal |
Notwithstanding Section
5.01, provided EMV is in compliance with Sections 5.01 and 5.02, if at any time, prior to obtaining the approval by the EMV Shareholders
of the EMV Arrangement Resolution, EMV receives from any person a bona fide written EMV Acquisition Proposal that did not result from
a breach of Section 5.01, EMV may engage in or participate in discussions or negotiations with such person regarding such EMV Acquisition
Proposal, and may provide copies of, access to or disclosure of confidential information, properties, facilities, books or records of
EMV or its Subsidiaries, if and only if:
| (a) | the EMV Board (i) first determines in
good faith, after consultation with its financial advisors and its outside counsel, that
such EMV Acquisition Proposal is or may reasonably be expected to result in an EMV Superior
Proposal, and (ii) has received written advice from its outside counsel that the failure
to engage in such discussions or negotiations would be inconsistent with its fiduciary duties; |
| (b) | such person was not restricted from making
such EMV Acquisition Proposal pursuant to an existing standstill, confidentiality, non-disclosure,
business purpose, use or similar restriction or agreement and no waiver of any such provision
was granted to the person; |
| (c) | EMV has been, and continues to be, in
compliance with its obligations under this Article 5; |
| (d) | prior to providing any such copies, access,
or disclosure, EMV enters into a confidentiality and standstill agreement with such person
in substantially the same form as the Confidentiality Agreement (and without limitation such
agreement may not include any provision calling for an exclusive right to negotiate with
EMV and may not restrict EMV or its Subsidiaries from complying with this Section 5.01);
and |
| (e) | EMV promptly provides Tevva with: |
| (i) | two Business Days’ prior written notice
stating EMV’s intention to participate in such discussions or negotiations regarding
such EMV Acquisition Proposal and to provide such copies, access or disclosure, together
with a copy of written advice from EMV’s outside counsel that the failure to engage
in such discussions or negotiations would be inconsistent with the EMV Board’s fiduciary
duties; and |
| (ii) | prior to providing any such copies, access
or disclosure, a true, complete and final unredacted executed copy of the confidentiality
and standstill agreement referred to in Section 5.03(d), |
provided that, EMV shall not, and shall not allow
its Representatives to, disclose any non-public information with respect to EMV or any of its Subsidiaries to such person if such non-public
information has not been previously provided to, or is not concurrently provided to, Tevva.
| (a) | Provided that EMV is in compliance with
Sections 5.01, 5.02 and 5.03, if EMV receives an EMV Acquisition Proposal that constitutes
an EMV Superior Proposal prior to approval by EMV Shareholders of the EMV Arrangement Resolution,
the EMV Board may, subject to compliance with Article 5 and Section 8.03, enter into
a definitive agreement with respect to such EMV Acquisition Proposal, if and only if: |
| (i) | the person making the EMV Superior Proposal
was not restricted from making such EMV Superior Proposal pursuant to an existing standstill,
use of information, or similar restriction and no waiver of any such provision was granted
to the person; |
| (ii) | EMV has been, and continues to be, in compliance
with its obligations under this Article 5 in respect of such EMV Superior Proposal; |
| (iii) | EMV has delivered to Tevva a written notice
of the determination of the EMV Board that such EMV Acquisition Proposal constitutes an EMV
Superior Proposal and of the intention of the EMV Board to enter into such definitive agreement,
together with a written notice from the EMV Board regarding the value and financial terms
that the EMV Board, in consultation with its financial advisors, has determined should be
ascribed to any non-cash consideration offered under such EMV Acquisition Proposal and that
the failure to enter into such definitive agreement would be inconsistent with the EMV Board’s
fiduciary duties (the “EMV Superior Proposal Notice”); |
| (iv) | EMV has provided Tevva a copy of the proposed
definitive agreement for the EMV Superior Proposal and all supporting materials, including
any financing documents supplied to EMV in connection therewith; |
| (v) | at least five Business Days (the “Tevva
Matching Period”) have elapsed from the date that is the later of the date on which
Tevva received the EMV Superior Proposal Notice and the date on which Tevva received all
of the materials set out in Section 5.04(a)(iv) from EMV; |
| (vi) | during any Tevva Matching Period, Tevva
has had the opportunity (but not the obligation), in accordance with Section 5.04(b), to
offer to amend this Agreement and the Arrangement in order for such EMV Acquisition Proposal
to cease to be an EMV Superior Proposal; |
| (vii) | if Tevva has offered to amend this Agreement
and the Arrangement under Section 5.04(b) and, following the end of the Tevva Matching Period,
the EMV Board has determined in good faith, after consultation with EMV’s outside legal
counsel and financial advisors, that such EMV Acquisition Proposal continues to constitute
an EMV Superior Proposal compared to the terms of the Arrangement as proposed to be amended
by Tevva under Section 5.04(b); |
| (viii) | the EMV Board has determined in good
faith, after consultation with EMV’s outside legal counsel, that it is necessary for
the EMV Board to enter into a definitive agreement with respect to such EMV Superior Proposal
in order to properly discharge its fiduciary duties; and |
| (ix) | prior to or concurrently with the entering
into such definitive agreement EMV terminates this Agreement pursuant to Section 8.01(c)(ii)
and pays the EMV Termination Amount pursuant to Section 8.03. |
| (b) | During the Tevva Matching Period, or such
longer period as EMV may approve in writing for such purpose: (i) the EMV Board shall review
any offer made by Tevva under Section 5.04(a)(vi) to amend the terms of this Agreement and
the Arrangement in good faith in order to determine whether such proposal would, upon acceptance,
result in the EMV Acquisition Proposal previously constituting an EMV Superior Proposal ceasing
to be an EMV Superior Proposal; and (ii) EMV shall negotiate in good faith with Tevva to
make such amendments to the terms of this Agreement and the Arrangement as would enable Tevva
to proceed with the transactions contemplated by this Agreement on such amended terms. If
the EMV Board determines that such EMV Acquisition Proposal would cease to be an EMV Superior
Proposal as a result of the amendments proposed by Tevva, EMV shall promptly so advise Tevva
and promptly thereafter accept the offer by Tevva, and the Parties shall amend this Agreement
to reflect such offer made by Tevva, and shall take and cause to be taken all such actions
as are necessary to give effect to the foregoing. |
| (c) | Each successive amendment to any EMV Acquisition
Proposal that results in an increase in, or modification of, the consideration (or value
of such consideration) to be received by the EMV Shareholders or other material terms or
conditions thereof, shall constitute a new EMV Acquisition Proposal for the purposes of this
Section 5.04, and Tevva shall be afforded a new five Business Day Tevva Matching Period from
the later of the date on which Tevva received the EMV Superior Proposal Notice and the date
on which Tevva received all of the materials set out in Section 5.04(a)(iv) in respect of
such new EMV Superior Proposal from EMV. |
| (d) | The EMV Board shall promptly reaffirm
the EMV Board Recommendation by press release after any EMV Acquisition Proposal which is
not determined to be an EMV Superior Proposal is publicly announced or the EMV Board determines
that a proposed amendment to the terms of this Agreement as contemplated under Section 5.04(b)
would result in an EMV Acquisition Proposal ceasing to be an EMV Superior Proposal. EMV shall
provide Tevva and its outside legal with a reasonable opportunity to review the form and
content of any such press release and shall make all reasonable amendments to such press
release as requested by Tevva and its counsel. Nothing contained in this Agreement shall
prohibit the EMV Board from responding, through a directors’ circular or otherwise,
as required by applicable law to an EMV Acquisition Proposal that it determined not to be
an EMV Superior Proposal. |
| (e) | If EMV provides an EMV Superior Proposal
Notice to Tevva on a date that is less than five Business Days before the EMV Meeting, EMV
shall either proceed with or postpone the EMV Meeting, as directed by Tevva acting reasonably,
to a date that is not more than five Business Days after the scheduled date of the EMV Meeting,
and EMV shall not otherwise propose to adjourn or postpone the EMV Meeting. |
| 5.05 | Breach by Subsidiaries
and Representatives |
Without limiting the generality
of the foregoing, EMV shall advise its Subsidiaries and its and their Representatives of the prohibitions set out in this Article 5
and any violation of the restrictions set forth in this Article 5 by EMV, its Subsidiaries or their respective Representatives is
deemed to be a breach of this Article 5 by EMV.
Article 6
–
ADDITIONAL COVENANTS REGARdING Tevva NON-SOLICITATION
| 6.01 | Tevva Non-Solicitation |
| (a) | Tevva shall not, directly or indirectly,
through any Representative, or otherwise, and shall not permit any such person to: |
| (i) | solicit, initiate, encourage or otherwise
facilitate (including by way of furnishing or providing copies of, access to, or disclosure
of, any confidential information, properties, facilities, books or records of Tevva or any
of its Subsidiaries or entering into any form of agreement, arrangement or understanding)
any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute
or lead to, a Tevva Acquisition Proposal; |
| (ii) | enter into or otherwise engage or participate
in any discussions or negotiations with any person (other than EMV) regarding any inquiry,
proposal or offer that constitutes, or may reasonably be expected to constitute or lead to,
a Tevva Acquisition Proposal; |
| (iii) | accept, approve, endorse or recommend,
or publicly propose to accept, approve, endorse or recommend, or take no position or remain
neutral with respect to, any Tevva Acquisition Proposal; or |
| (iv) | enter into or publicly propose to enter
into any agreement in respect of a Tevva Acquisition Proposal. |
| (b) | Tevva shall confirm, and shall cause its
Subsidiaries and its Representatives to confirm, that it has ceased and terminated any solicitation,
encouragement, discussion, negotiations, or other activities commenced prior to the date
of this Agreement with any person (other than EMV) with respect to any inquiry, proposal
or offer that constitutes, or may reasonably be expected to constitute or lead to, a Tevva
Acquisition Proposal, and in connection with such termination: |
| (i) | has discontinued access to and disclosure
of all information, including any data room and any confidential information, properties,
facilities, books and records of Tevva or any of its Subsidiaries including by way of online
data room or other electronic delivery system; and |
| (ii) | shall, as soon as practicable and within
three Business Days after the date of this Agreement, request and exercise all rights it
has to require (A) the return or destruction of all copies of any confidential information
regarding Tevva or any of its Subsidiaries provided to any person (other than EMV), and (B)
the destruction of all material including or incorporating or otherwise reflecting such confidential
information regarding Tevva or any of its Subsidiaries, using its commercially reasonable
efforts to ensure that such requests are fully complied with in accordance with the terms
of such rights or entitlements. |
| (c) | Tevva represents and warrants that Tevva
has not waived any confidentiality, standstill or similar provision or restriction in any
agreement to which Tevva or any of its Subsidiaries is a party, except to permit submissions
of expressions of interest prior the date of this Agreement, and covenants and agrees that: |
| (i) | Tevva shall take all necessary action to
enforce each confidentiality, standstill or similar provision or restriction in any agreement
to which Tevva or any of its Subsidiaries is a party; and |
| (ii) | neither Tevva, nor any of its Subsidiaries
nor any of their respective Representatives have released or will, without the prior written
consent of EMV (which may be withheld or delayed in EMV’s sole and absolute discretion),
release any person from, or waive, amend, suspend or otherwise modify such person’s
obligations respecting Tevva or any of its Subsidiaries, under any confidentiality, standstill
or similar provision or restriction in any agreement to which Tevva or any of its Subsidiaries
is a party. |
| 6.02 | Notification of Tevva
Acquisition Proposals |
If Tevva or any of its
Subsidiaries or any of their respective Representatives receives or otherwise becomes aware of any inquiry, proposal or offer that constitutes
or may reasonably be expected to constitute or lead to a Tevva Acquisition Proposal, or any request for copies of, access to, or disclosure
of, confidential information relating to Tevva or any of its Subsidiaries, including but not limited to information, access, or disclosure
relating to the properties, facilities, books or records of Tevva or any of its Subsidiaries, Tevva shall immediately notify EMV, at
first orally, and then promptly and in any event within 48 hours in writing, of such Tevva Acquisition Proposal, inquiry, proposal, offer
or request, including a description of its material terms and conditions, the identity of all persons making such Tevva Acquisition Proposal,
inquiry, proposal, offer or request, and copies of all material or substantive documents, correspondence or other material received in
respect of, from or on behalf of any such person. Tevva will keep EMV fully informed on a current basis of the status of developments
with respect to such Tevva Acquisition Proposal, inquiry, proposal, offer or request, including any material changes, modifications or
other amendments thereto.
| 6.03 | Breach by Subsidiaries
and Representatives |
Without limiting the generality of the foregoing,
Tevva shall advise its Subsidiaries and its and their Representatives of the prohibitions set out in this Article 6 and any violation
of the restrictions set forth in this Article 6 by Tevva, its Subsidiaries or their respective Representatives is deemed to be a
breach of this Article 6 by Tevva.
Article 7
–
CONDITIONS
| 7.01 | Mutual Conditions Precedent |
The Parties are not required
to complete the Arrangement, unless each of the following conditions is satisfied on or prior to the Effective Time, which conditions
(other than the condition at 7.01(e) which may not be waived in any circumstances) may only be waived, in whole or in part, by the mutual
consent of the Transacting Parties:
| (a) | EMV Shareholders shall have adopted the
EMV Arrangement Resolution at the EMV Meeting in accordance with the Interim Order; |
| (b) | the Tevva Ordinary Shareholders shall
have approved the Tevva Transaction Resolutions at the Tevva Meeting in accordance with the
Interim Order, Tevva Constating Documents and applicable laws; |
| (c) | each of the Holdco Arrangement Resolution
and the Parentco Arrangement Resolution shall have been adopted in accordance with the Interim
Order, following adoption of the Tevva Transaction Resolutions; |
| (d) | the Interim Order and the Final Order
shall have each been obtained on terms consistent with this Agreement, and shall not have
been set aside or modified in a manner unacceptable to either EMV or Tevva, each acting reasonably,
on appeal or otherwise; |
| (e) | the Holdco Share Transfer shall have been
completed such that all Tevva Ordinary Shareholders have obtained legal and beneficial ownership
of all the share capital of Holdco and Holdco is the sole registered and beneficial holder
of Tevva Shares; |
| (f) | the issuance of the Resulting Issuer Shares
under the Arrangement shall (i) be exempt from the registration requirements of the U.S.
Securities Act pursuant to Section 3(a)(10) thereof and (ii) be exempt from the prospectus
requirements of applicable Securities Laws in Canada and the United Kingdom either by virtue
of exemptive relief from the applicable Securities Authorities or by virtue of applicable
exemptions under Securities Laws; |
| (g) | the Resulting Issuer Shares to be issued
under the Arrangement shall be conditionally approved for listing on the Nasdaq following
the Effective Time, subject to customary listing conditions; |
| (h) | no Governmental Entity of competent jurisdiction
located in a jurisdiction where either Transacting Party has material assets shall have enacted,
issued, promulgated, enforced or entered any law or order which is then in effect and has
the effect of making the transactions contemplated hereby, including the Arrangement, illegal
or otherwise preventing or prohibiting consummation of the transactions contemplated hereby,
including the Arrangement; |
| (i) | all Regulatory Approvals required for
the completion of the transactions contemplated by this Agreement (including without limitation,
any and all Regulatory Approvals required to be obtained from the UK Secretary of State in
the Cabinet Office to enable the lawful completion of all or any part of the Arrangement
pursuant to the UK NSIA) shall have been obtained on terms that are reasonably satisfactory
to each of the Transacting Parties (which for the avoidance of doubt in relation to any Regulatory
Approvals required to be obtained pursuant to the UK NSIA means following the notification
of any transaction contemplated by this Agreement in accordance with the requirements of
the UK NSIA, either: |
| (i) | the UK Secretary of State in the Cabinet
Office notifying Holdco pursuant to section 14(8)(b)(ii) of the UK NSIA that no further action
will be taken in relation to the transaction; or |
| (ii) | in the event that a call-in notice is given
in relation to the transaction pursuant to section 14(8)(b)(i) of the UK NSIA, the UK Secretary
of State in the Cabinet Office either: |
| (A) | giving a final notification pursuant to
section 26(1)(b) of the UK NSIA confirming that no further action will be taken in relation
to the transactions; or |
| (B) | making a final order pursuant to section
26(1)(a) of the UK NSIA permitting the transaction to proceed subject to such remedies or
requirements that are in all respects reasonably satisfactory to EMV, and such order not
being revoked or varied before completion of the Arrangement); |
| (j) | Tevva, if it chooses to seek clearance,
shall have received clearance from HM Revenue & Customs that it is satisfied that the
Holdco Share Transfer and the Arrangement has been effected for bona fide commercial reasons
and will not form part of a scheme or arrangements of which the main purpose, or one of the
main purposes, is the avoidance of liability to UK capital gains tax or UK corporation tax;
and |
| (k) | all actions shall have been taken to ensure
that the Resulting Issuer will be continued out of British Columbia and concurrently domesticated
in the State of Delaware and continued as a corporation under the DGCL in accordance with
the Plan of Arrangement, subject only to customary filings with the British Columbia Registrar
of Companies and the Delaware Secretary of State. |
| 7.02 | Additional Conditions
Precedent to the Obligations of Tevva |
The obligation of Tevva
to complete the transactions contemplated by this Agreement will be subject to the satisfaction, or waiver by Tevva, on or before the
Effective Time, of each of the following conditions, each of which is for the exclusive benefit of Tevva and which may be waived by Tevva
at any time, in whole or in part, in its sole discretion and without prejudice to any other rights that Tevva may have:
| (a) | the representations and warranties of
EMV set forth in Section 5.01(c) and Schedule E are true and correct as of the date
of this Agreement and shall be true and correct as of the Effective Date (except for representations
and warranties made as of a specified date, which shall be true and correct as of such specified
date) except where the failure of such representations and warranties to be true and correct,
individually or in the aggregate, would not result or would not reasonably be expected to
result in a Material Adverse Change in respect of EMV; |
| (b) | EMV shall have performed and complied
in all material respects with each of the covenants contained in this Agreement to be performed
and complied with (without giving effect to any “in all material respects” qualifiers
contained therein) by it on or prior to the Effective Time; |
| (c) | there shall not have occurred a Material
Adverse Change in respect of EMV since the date of this Agreement; |
| (d) | the number of EMV Shares in respect of
which EMV Shareholders have validly exercised Dissent Rights (and not withdrawn such exercise)
shall not exceed 10% of the EMV Shares issued and outstanding as of the date hereof; |
| (e) | there shall be no Proceeding pending or
threatened by any person in any jurisdiction that would be reasonably likely to: |
| (i) | cease trade, enjoin, prohibit, or impose
any limitations, damages or conditions on (A) the ability of Tevva Ordinary Shareholders
to acquire, hold, or exercise full rights of ownership over any Resulting Issuer Shares,
including the right to vote the Resulting Issuer Shares or (B) the ability of Resulting Issuer
to acquire, hold, or exercise full rights of ownership over any EMV Shares, including the
right to vote the EMV Shares; |
| (ii) | prohibit, impair or restrict the Arrangement,
or the ownership or operation by the Resulting Issuer of any material portion of the business
or assets of Tevva, EMV or any of their respective Subsidiaries, or compel the Resulting
Issuer to dispose of or hold separate any material portion of the business or assets of Tevva,
EMV or any of their respective Subsidiaries following the Arrangement; or |
| (iii) | prevent or materially delay the consummation
of the Arrangement, or if the Arrangement is consummated, have a Material Adverse Change
in respect of EMV or Tevva; |
| (f) | the EMV Key Consents shall have been obtained
on terms that are acceptable to Tevva, acting reasonably, and not withdrawn or modified;
and |
| (g) | Tevva shall have received a certificate
of EMV signed by a senior officer of EMV and dated the Effective Date certifying (without
personal liability) that the conditions set out in Sections 7.02(a), 7.02(b), 7.02(c), 7.02(d)
and 7.02(f) (other than with respect to acceptability to Tevva) have been satisfied. |
| 7.03 | Additional Conditions
Precedent to the Obligations of EMV |
The obligation of EMV to
complete the transactions contemplated by this Agreement will be subject to the satisfaction, or waiver by EMV, on or before the Effective
Date, of each of the following conditions, each of which is for the exclusive benefit of EMV and which may be waived by EMV at any time,
in whole or in part, in its sole discretion and without prejudice to any other rights that EMV may have:
| (a) | the representations and warranties of
Tevva set forth in Section 6.01(c) and Schedule G are true and correct as of the date
of this Agreement and shall be true and correct as of the Effective Date (except for representations
and warranties made as of a specified date, which shall be true and correct as of such specified
date) except where the failure of such representations and warranties to be true and correct,
individually or in the aggregate, would not result or would not reasonably be expected to
result in a Material Adverse Change in respect of Tevva; |
| (b) | Tevva shall have performed and complied
in all material respects with each of the covenants contained in this Agreement to be performed
and complied with (without giving effect to any “in all material respects” qualifiers
contained therein) by it on or prior to the Effective Time; |
| (c) | there shall not have occurred a Material
Adverse Change in respect of Tevva since the date of this Agreement; |
| (d) | no Tevva Shareholder shall have applied
to court for a remedy in connection with a claim that they have been unfairly prejudiced
as a result of the conduct of Tevva’s affairs; |
| (e) | there shall be no Proceeding pending or
threatened by any person in any jurisdiction that would be reasonably likely to: |
| (i) | cease trade, enjoin, prohibit, or impose
any limitations, damages or conditions on (A) the ability of EMV Shareholders to acquire,
hold, or exercise full rights of ownership over any Resulting Issuer Shares, including the
right to vote the Resulting Issuer Shares or (B) the ability of the Resulting Issuer to acquire,
hold, or exercise full rights of ownership over any Tevva Shares, including the right to
vote the Tevva Shares; |
| (ii) | prohibit, impair or restrict the Arrangement,
or the ownership or operation by the Resulting Issuer of any material portion of the business
or assets of Tevva, EMV or any of their respective Subsidiaries, or compel the Resulting
Issuer to dispose of or hold separate any material portion of the business or assets of Tevva,
EMV or any of their respective Subsidiaries following the Arrangement; or |
| (iii) | prevent or materially delay the consummation
of the Arrangement, or if the Arrangement is consummated, have a Material Adverse Change
in respect of EMV or Tevva; |
| (f) | the Tevva Key Consents shall have been
obtained on terms that are acceptable to EMV, acting reasonably, and not withdrawn or modified; |
| (g) | the Investor Majority Consent shall have
been obtained; |
| (h) | the Tevva Financial Statements shall have
been approved by Tevva and filed at Companies House; and |
| (i) | EMV shall have received a certificate
of Tevva signed by a senior officer of Tevva and dated the Effective Date certifying (without
personal liability) that the conditions set out in Sections 7.03(a), 7.03(b), 7.03(c), 7.03(d)
and 7.03(f) (other than with respect to acceptability to EMV) have been satisfied. |
| 7.04 | Satisfaction of Conditions |
The conditions precedent set out in Sections
7.01, 7.02 and 7.03 will be conclusively deemed to have been satisfied, waived or released at the Effective Time.
Article 8
–
TERMINATION
This Agreement may be terminated prior to the
Effective Time by:
| (a) | the mutual written agreement of the Transacting
Parties; |
| (b) | either EMV or Tevva if: |
| (i) | the EMV Arrangement Resolution is not approved
at the EMV Meeting in accordance with the Interim Order, except that the right to terminate
this Agreement under this Section 8.01(b)(i) shall not be available to any Party whose failure
to fulfil any of its obligations or breach of any of its representations and warranties under
this Agreement has been a principal cause of, or resulted in, the failure of the EMV Arrangement
Resolution to have been approved; |
| (ii) | the Tevva Transaction Resolutions are not
approved at the Tevva Meeting in accordance with the Interim Order, except that the right
to terminate this Agreement under this Section 8.01(b)(ii) shall not be available to any
Party whose failure to fulfil any of its obligations or breach of any of its representations
and warranties under this Agreement has been a principal cause of, or resulted in, the failure
of the Tevva Transaction Resolutions to have been approved; |
| (iii) | any law makes the completion of the Arrangement
or the transactions contemplated by this Agreement illegal or otherwise prohibited, and such
law has become final and non-appealable, except that the right to terminate this Agreement
under this Section 8.01(b)(iii) shall not be available to any Party whose failure to fulfil
any of its obligations or breach of any of its representations and warranties under this
Agreement has been a principal cause of, or resulted in, the enactment, making or enforcement
of such law; or |
| (iv) | the Effective Time does not occur on or
prior to the Outside Date, except that the right to terminate this Agreement under this Section
8.01(b)(iv) shall not be available to any Party whose failure to fulfil any of its obligations
or breach of any of its representations and warranties under this Agreement has been a principal
cause of, or resulted in, the failure of the Effective Time to occur by such date; |
| (i) | a breach of any representation or warranty
or failure to perform any covenant or agreement on the part of Tevva under this Agreement
occurs that would, individually or when taken together with any other such breaches or failures,
be reasonably expected to cause any condition in Sections 7.01 or 7.03 not to be satisfied,
and such breach or failure is incapable of being cured or is not cured on or prior to the
Outside Date in accordance with the terms of Section 4.08(c) (and any intentional breach
shall be deemed to be incurable); provided however that EMV is not then in breach of this
Agreement so as to cause any condition in Sections 7.01 or 7.02 not to be satisfied; |
| (ii) | prior to the approval by the EMV Shareholders
of the EMV Arrangement Resolution, the EMV Board authorizes EMV to enter into a definitive
agreement providing for the implementation of an EMV Superior Proposal, provided EMV is then
in compliance with Article 5 and that prior to or concurrent with such termination EMV
pays the EMV Termination Amount in accordance with Section 8.03; or |
| (iii) | Tevva fails to perform, in any material
respect, any covenant or agreement on the part of Tevva under Article 6. |
| (i) | a breach of any representation or warranty
or failure to perform any covenant or agreement on the part of EMV under this Agreement occurs
that would, individually or when taken together with any other such breaches or failures,
be reasonably expected to cause any condition in Sections 7.01 or 7.02 not to be satisfied,
and such breach or failure is incapable of being cured or is not cured on or prior to the
Outside Date in accordance with the terms of Section 4.08(c) (and any intentional breach
shall be deemed to be incurable); provided however that Tevva is not then in breach of this
Agreement so as to cause any condition in Sections 7.01 or 7.03 not to be satisfied; |
| (ii) | EMV fails to perform, in any material respect,
any covenant or agreement on the part of EMV under Article 5; or |
| (iii) | there shall have occurred an EMV Change
in Recommendation. |
| 8.02 | Effect of Termination |
If this Agreement is terminated pursuant to Section
8.01, this Agreement shall become void and of no further force or effect without liability of any Party (or any shareholder, consultant
or Representative of such Party) to any other Party to this Agreement, except that the provisions of Section, this Section 8.02, Section
8.03, Section 8.04, Section 9.01 and Article 9 shall survive any termination of this Agreement, and provided further that no Party
shall be relieved of any liability arising on or prior to the date of such termination.
| 8.03 | EMV Obligation to Pay
EMV Termination Amount |
| (a) | Despite any other provision in this Agreement
relating to the payment of fees and expenses, if an EMV Termination Amount Event occurs,
in consideration for the disposition of its rights under this Agreement, EMV shall pay Tevva
the EMV Termination Amount in accordance with Section 8.03(c). |
| (b) | For the purposes of this Agreement, “EMV
Termination Amount Event” means the termination of this Agreement under any of
the following circumstances: |
| (i) | by Tevva, pursuant to Section 8.01(d)(ii)
[Breach of EMV Non-Solicitation Covenants]; |
| (ii) | by EMV, pursuant to Section 8.01(c)(ii)
[EMV Superior Proposal]; |
| (iii) | by EMV or Tevva pursuant to Section 8.01(b)(i)
[Failure to obtain approval of EMV Arrangement Resolution] or Section 8.01(b)(iv)
[Effective Time not prior to Outside Date], if: |
| (A) | prior to such termination, an EMV Acquisition
Proposal is made or publicly announced by any person, or any person shall have publicly announced
an intention to make an EMV Acquisition Proposal; and |
| (B) | within 12 months following the date of
such termination, (1) an EMV Acquisition Proposal (whether or not such EMV Acquisition Proposal
is the same EMV Acquisition Proposal referred to in clause (A) above) is consummated, or
(2) EMV enters into a definitive agreement providing for the implementation of an EMV Acquisition
Proposal (whether or not such EMV Acquisition Proposal is the same EMV Acquisition Proposal
referred to in clause (A) above) and such EMV Acquisition Proposal is later consummated (whether
or not within 12 months after such termination), |
provided that, for
purposes of this Section 8.03(b)(iii), all references in the definition of “EMV Acquisition Proposal” under Section 1.01
to “20%” shall be deemed to be references to “50%”; or
| (iv) | by EMV or Tevva pursuant to Section 8.01(b)(i)
[Failure to obtain approval of EMV Arrangement Resolution] if prior to the EMV Meeting
there has occurred an EMV Change in Recommendation. |
| (c) | If an EMV Termination Amount Event occurs,
EMV shall pay to Tevva the EMV Termination Amount by wire transfer of immediately available
funds to an account designated by Tevva in consideration for the disposition of Tevva’s
rights under this Agreement. EMV shall pay the EMV Termination Amount: |
| (i) | in the case of a termination of this Agreement
described in Section 8.03(b)(i) or Section 8.03(b)(iv), within three Business Days of the
occurrence of such EMV Termination Amount Event; |
| (ii) | in the case of a termination of this Agreement
described in Section 8.03(b)(ii), prior to or concurrent with the occurrence of such EMV
Termination Amount Event; and |
| (iii) | in the case of a termination of this Agreement
described in Section 8.03(b)(iii), on or prior to the consummation of the transaction implementing
the applicable EMV Acquisition Proposal. |
| (d) | The Transacting Parties acknowledge that:
(i) the agreements contained in this Section 8.03 are an integral part of the transactions
contemplated by this Agreement; (ii) the EMV Termination Amount represents liquidated damages
which are a genuine pre-estimate of the damages, including opportunity costs, which Tevva
will suffer or incur as a result of the event giving rise to such damages and resultant termination
of this Agreement; and (iii) the EMV Termination Amount represents consideration for Tevva’s
disposition of its rights under this Agreement, and is not a penalty. EMV irrevocably waives
any right it may have to raise as a defence that any such liquidated damages are excessive
or punitive. For greater certainty, the Transacting Parties agree that the payment of an
amount pursuant to this Section 8.03 in the manner provided in this Agreement is the sole
and exclusive remedy of Tevva in respect of the event giving rise to such payment (and under
no circumstances is the EMV Termination Amount payable more than once), provided, however,
that nothing contained in this Section 8.03, and no payment of any such amount, shall relieve
or have the effect of relieving EMV in any way from liability for damages incurred or suffered
by Tevva as a result of fraud or an intentional or wilful breach of this Agreement and nothing
contained in this Section 8.03 shall preclude Tevva from seeking injunctive relief in accordance
with Section 9.05. |
| 8.04 | Tevva Obligation to Pay
Tevva Termination Amount |
| (a) | Despite any other provision in this Agreement
relating to the payment of fees and expenses, if a Tevva Termination Amount Event occurs,
in consideration for the disposition of its rights under this Agreement, Tevva shall pay
EMV the Tevva Termination Amount in accordance with Section 8.04(c). |
| (b) | For the purposes of this Agreement, “Tevva
Termination Amount Event” means the termination of this Agreement under any of
the following circumstances: |
| (i) | by EMV, pursuant to Section 8.01(c)(iii)
[Breach of Tevva Non-Solicitation Covenants]; |
| (ii) | by EMV or Tevva pursuant to Section 8.01(b)(iv)
[Effective Time not prior to Outside Date], if: |
| (A) | prior to such termination, a Tevva Acquisition
Proposal is made or publicly announced by any person, or any person shall have publicly announced
an intention to make a Tevva Acquisition Proposal; and |
| (B) | within 12 months following the date of
such termination, (1) a Tevva Acquisition Proposal (whether or not such Tevva Acquisition
Proposal is the same Tevva Acquisition Proposal referred to in clause (A) above) is consummated,
or (2) Tevva enters into a definitive agreement providing for the implementation of a Tevva
Acquisition Proposal (whether or not such Tevva Acquisition Proposal is the same Tevva Acquisition
Proposal referred to in clause (A) above) and such Tevva Acquisition Proposal is later consummated
(whether or not within 12 months after such termination), |
provided that, for
purposes of this Section 8.04(b)(ii), all references in the definition of “Tevva Acquisition Proposal” under Section 1.01
to “20%” shall be deemed to be references to “50%”; or
| (iii) | by EMV or Tevva pursuant to Section 8.01(b)(ii)
[Failure to obtain approval of Tevva Transaction Resolutions] if prior to the Tevva
Meeting there has occurred a Tevva Change in Recommendation. |
| (c) | If a Tevva Termination Amount Event occurs,
Tevva shall pay to EMV the Tevva Termination Amount by wire transfer of immediately available
funds to an account designated by EMV in consideration for the disposition of EMV’s
rights under this Agreement. Tevva shall pay the EMV Termination Amount: |
| (i) | in the case of a termination of this Agreement
described in Section 8.04(b)(i) or Section 8.04(b)(iii), within three Business Days of the
occurrence of such Tevva Termination Amount Event; and |
| (ii) | in the case of a termination of this Agreement
described in Section 8.04(b)(ii), on or prior to the consummation of the transaction implementing
the applicable Tevva Acquisition Proposal. |
| (d) | The Transacting Parties acknowledge that:
(i) the agreements contained in this Section 8.04 are an integral part of the transactions
contemplated by this Agreement; (ii) the Tevva Termination Amount represents liquidated damages
which are a genuine pre-estimate of the damages, including opportunity costs, which EMV will
suffer or incur as a result of the event giving rise to such damages and resultant termination
of this Agreement; and (iii) the Tevva Termination Amount represents consideration for EMV’s
disposition of its rights under this Agreement, and is not a penalty. Tevva irrevocably waives
any right it may have to raise as a defence that any such liquidated damages are excessive
or punitive. For greater certainty, the Transacting Parties agree that the payment of an
amount pursuant to this Section 8.04 in the manner provided in this Agreement is the sole
and exclusive remedy of EMV in respect of the event giving rise to such payment (and under
no circumstances is the Tevva Termination Amount payable more than once), provided, however,
that nothing contained in this Section 8.04, and no payment of any such amount, shall relieve
or have the effect of relieving Tevva in any way from liability for damages incurred or suffered
by EMV as a result of fraud or an intentional or wilful breach of this Agreement and nothing
contained in this Section 8.04 shall preclude Tevva from seeking injunctive relief in accordance
with Section 9.05. |
Article 9
–
GENERAL PROVISIONS
Except as otherwise specified
in this Agreement, each Party will pay its respective legal and accounting costs, fees and expenses incurred in connection with the preparation,
execution and delivery of this Agreement and all documents and instruments executed pursuant to this Agreement and any other costs, fees
and expenses whatsoever and howsoever incurred, and will indemnify and save harmless the other Parties from and against any claim for
any broker’s, finder’s or placement fee or commission alleged to have been incurred as a result of any action by it in connection
with the transactions contemplated by this Agreement.
Subject to the provisions
of the Interim Order, this Agreement and the Plan of Arrangement may, at any time and from time to time, but not later than the Effective
Time, be amended by mutual written agreement of the parties hereto, without further notice to or authorization on the part of the EMV
Shareholders or Tevva Shareholders, and any such amendment may, without limitation:
| (a) | change the time for performance of any
of the obligations or acts of the Parties; |
| (b) | modify any representation or warranty
contained in this Agreement or in any document delivered pursuant to this Agreement; |
| (c) | modify any of the covenants contained
in this Agreement and waive or modify performance of any of the obligations of the Parties;
or |
| (d) | modify any mutual conditions contained
in this Agreement. |
| (a) | Any notice, or other communication given
regarding the matters contemplated by this Agreement must be in writing, sent by personal
delivery, courier or electronic mail and addressed: |
8057 North Fraser Way
Burnaby, British Columbia
Canada V5J 5M8
Attention: Michael Bridge,
General Counsel
Email: mike.bridge@electrameccanica.com
with a copy to:
McCarthy Tétrault LLP
2400 – 743 Thurlow Street
Vancouver, British Columbia
Canada V6E 0C5
Attention: David
Frost; Gerald Gaunt
Email: dfrost@mccarthy.ca; ggaunt@mccarthy.ca
Tevva Motors Limited
Tevva London Unit 1 London Distribution Park
Windrush Road, Tilbury, Essex,
England RM18 7EW
Attention: David
Mackey
Email: David.Mackey@tevva.com
with a copy to:
Gowling WLG (Canada) LLP
421 7 Ave SW #1600
Calgary, Alberta
Canada T2P 4K9
Attention: Sharagim Habibi
Email: Sharagim.habibi@gowlingwlg.com
and to:
Lucosky Brookman LLP
101 Wood Avenue, 5th Floor
Woodbridge, NJ 08830
Attention: Christopher Haunschild
Email: chaunschild@lucbro.com
2400 – 743 Thurlow Street
Vancouver, British Columbia
Canada V6E 0C5
Attention: Michael
Bridge, Director
Email: mike.bridge@electrameccanica.com
2400 – 743 Thurlow Street
Vancouver, British Columbia
Canada V6E 0C5
Attention: Michael
Bridge, Director
Email: mike.bridge@electrameccanica.com
| (b) | Any notice or other communication is deemed
to be given and received (i) if sent by personal delivery or same day courier, on the date
of delivery if it is a Business Day and the delivery was made prior to 5:00 p.m. (local time
in place of receipt) and otherwise on the next Business Day, (ii) if sent by overnight courier,
on the next Business Day, (iii) if sent by electronic mail, on the Business Day on the date
of transmission if it is a Business Day and the transmission was sent prior to 5:00 p.m.
(local time in place of receipt) and otherwise on the next Business Day. A Party may change
its address for service from time to time by providing a notice in accordance with the foregoing.
Any subsequent notice or other communication must be sent to the Party at its changed address.
Any element of a Party’s address that is not specifically changed in a notice will
be assumed not to be changed. Sending a copy of a notice or other communication to a Party’s
legal counsel as contemplated above is for information purposes only and does not constitute
delivery of the notice or other communication to that Party. The failure to send a copy of
a notice or other communication to legal counsel does not invalidate delivery of that notice
or other communication to a Party. |
Time is of the essence
in this Agreement.
The Parties agree that
irreparable harm would occur for which money damages would not be an adequate remedy at law in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the
Parties shall be entitled to injunctive and other equitable relief to prevent breaches of this Agreement, and to enforce compliance with
the terms of this Agreement without any requirement for the securing or posting of any bond in connection with the obtaining of any such
injunctive or other equitable relief, this being in addition to any other remedy to which the Parties may be entitled at law or in equity.
Such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available
at law or equity to each of the Parties.
| 9.06 | Third Party Beneficiaries |
Except as provided in Section
4.09, which, without limiting its terms, is intended as a stipulation for the benefit of the Indemnified Parties, EMV and Tevva intend
that this Agreement will not benefit or create any right or cause of action in favour of any person, other than the Parties and that
no person, other than the Parties, shall be entitled to rely on the provisions of this Agreement in any action, suit, proceeding, hearing
or other forum.
No waiver of any of the
provisions of this Agreement will constitute a waiver of any other provision of this Agreement (whether or not similar). No waiver will
be binding unless executed in writing by the Party to be bound by the waiver. A Party’s failure or delay in exercising any right
under this Agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a Party
from any other or further exercise of that right or the exercise of any other right.
This Agreement, together
with the Confidentiality Agreement, constitutes the entire agreement between the Parties with respect to the transactions contemplated
by this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the
Parties. There are no representations, warranties, covenants, conditions or other agreements, express or implied, collateral, statutory
or otherwise, between the Parties in connection with the subject matter of this Agreement, except as specifically set forth in this Agreement.
The Parties have not relied and are not relying on any other information, discussion or understanding in entering into and completing
the transactions contemplated by this Agreement.
| 9.09 | Successors and Assigns |
This Agreement shall enure
to the benefit of and be binding upon the respective heirs, executors, administrators, successors and permitted assigns of the Parties.
Neither this Agreement nor any of the rights or obligations under this Agreement are assignable or transferable by (a) any Transacting
Party without the prior written consent of the other Transacting Party and (b) by Holdco or Parentco without the prior written consent
of both EMV and Tevva.
If any provision of this
Agreement is determined to be illegal, invalid or unenforceable by an arbitrator or any court of competent jurisdiction, that provision
will be severed from this Agreement and the remaining provisions shall remain in full force and effect. Upon such determination that
any term or other provision is invalid, illegal or incapable of being enforced, the Parties 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.
This Agreement will be
governed by and interpreted and enforced in accordance with the laws of the Province of British Columbia and the federal laws of Canada
applicable therein. Each of the Parties to this Agreement irrevocably attorns to the non-exclusive jurisdiction of the courts of the
Province of British Columbia in respect of all matters arising under and in relation to this Agreement or the Arrangement and waives,
to the fullest extent possible, the defence of an inconvenient forum or any similar defence to the maintenance of proceedings in such
courts.
| 9.12 | Rules of Construction |
The Parties to this Agreement
waive the application of any law or rule of construction providing that ambiguities in any agreement or other document shall be construed
against the party drafting such agreement or other document.
No director or officer
of Tevva or any of its Subsidiaries, or any Tevva Employee, shall have any personal liability whatsoever to EMV under this Agreement
or any other document delivered in connection with the transactions contemplated hereby on behalf of Tevva or any of its Subsidiaries.
No director or officer of EMV or any of its Subsidiaries, or any EMV Employee, shall have any personal liability whatsoever to Tevva
under this Agreement or any other document delivered in connection with the transactions contemplated hereby on behalf of EMV or any
of its Subsidiaries.
This Agreement may be executed
in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same instrument. The
Parties shall be entitled to rely upon delivery of an executed electronic copy of this Agreement, and such executed electronic copy shall
be legally effective to create a valid and binding agreement between the Parties.
[Remainder of page intentionally left blank.
Signature pages follow.]
IN WITNESS WHEREOF the Parties have executed this Arrangement
Agreement.
|
ELECTRAMECCANICA VEHICLES CORP.
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By: |
/s/ Susan Docherty |
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Name: |
Susan Docherty |
|
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Title: |
Chief Executive Officer |
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TEVVA MOTORS LIMITED
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By: |
/s/ David Roberts |
|
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Name: |
David Roberts |
|
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Title: |
Director |
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1432952 B.C. LTD.
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By: |
/s/ Michael Bridge |
|
|
Name: |
Michael Bridge |
|
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Title: |
Director |
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1432957 B.C. LTD.
|
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By: |
/s/ Michael Bridge |
|
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Name: |
Michael Bridge |
|
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Title: |
Director |
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|
Signature Page to Arrangement Agreement
Schedule A
–
EMV Arrangement Resolution
BE IT RESOLVED, AS A SPECIAL RESOLUTION THAT:
| 1. | The arrangement
(the “Arrangement”) under Division 5 of Part 9 of the Business Corporations
Act (British Columbia) (the “BCBCA”) involving ElectraMeccanica Vehicles
Corp. (“EMV”), pursuant to the arrangement agreement between EMV, Tevva
Motors Limited (“Tevva”), 1432952 B.C. Ltd. and 1432957 B.C. Ltd., dated
August 14, 2023, as amended or supplemented from time to time (the “Arrangement
Agreement”), as more particularly described and set forth in the management information
circular (the “Circular”) of EMV dated [●], 2023, and all other
transactions contemplated by the Arrangement Agreement, is hereby authorized, approved and
adopted. |
| 2. | The plan
of arrangement involving EMV, as it has been or may be amended or supplemented in accordance
with the Arrangement Agreement or at the direction of the Supreme Court of British Columbia
(the “Court”) with the consent of EMV and Tevva, the full text of which
is set out in Schedule [●] to the Circular (the “Plan of Arrangement”),
is hereby authorized, approved and adopted. |
| 3. | The Arrangement
Agreement and all the transactions contemplated therein, the actions of the directors of
EMV in approving the Arrangement and any amendments thereto and the actions of the officers
of EMV in executing and delivering the Arrangement Agreement and any amendments thereto are
hereby confirmed, ratified, authorized and approved. |
| 4. | Notwithstanding
that this resolution has been passed (and the Arrangement adopted) or that the Arrangement
has been approved by the Supreme Court of British Columbia, the directors of EMV are hereby
authorized and empowered, without further notice to, or approval of, any securityholders
of EMV: |
| (a) | to
amend the Arrangement Agreement or the Plan of Arrangement to the extent permitted by the
Arrangement Agreement or the Plan of Arrangement; or |
| (b) | subject
to the terms of the Arrangement Agreement, not to proceed with the Arrangement. |
| 5. | Any one
or more directors or officers of EMV is hereby authorized, for and on behalf and in the name
of EMV, to execute and deliver, whether under corporate seal of EMV or not, all such agreements,
applications, forms, waivers, notices, certificates, confirmations and other documents and
instruments and to do or cause to be done all such other acts and things as in the opinion
of such director or officer may be necessary, desirable or useful for the purpose of giving
effect to these resolutions, the Arrangement Agreement and the completion of the Plan of
Arrangement in accordance with the terms of the Arrangement Agreement, including: |
| (a) | all
actions required to be taken by or on behalf of EMV, and all necessary filings and obtaining
the necessary approvals, consents and acceptances of appropriate regulatory authorities;
and |
| (b) | the
signing of the certificates, consents and other documents or declarations required under
the Arrangement Agreement or otherwise to be entered into by EMV, such determination to be
conclusively evidenced by the execution and delivery of such document, agreement or instrument
or the doing of any such act or thing. |
Schedule B
–
TEVVA transaction Resolutions
PART A – TEVVA ARRANGEMENT RESOLUTION
BE IT RESOLVED, AS AN ORDINARY RESOLUTION (but
which shall only be effective if approved by not less than 66 2/3% of the votes cast in a poll vote) THAT:
| 1. | The arrangement
(the “Arrangement”) under Division 5 of Part 9 of the Business Corporations
Act (British Columbia) (the “BCBCA”) involving Tevva Motors Limited
(“Tevva”), pursuant to the arrangement agreement between ElectraMeccanica
Vehicles Corp. (“EMV”), Tevva, 1432952 B.C. Ltd. (“Holdco”)
and 1432957 B.C. Ltd., dated August 14, 2023, as amended or supplemented from time to time
(the “Arrangement Agreement”), as more particularly described and set
forth in the management information circular (the “Circular”) of Tevva
dated [●], 2023 is hereby authorized, approved and adopted. |
| 2. | The plan
of arrangement involving Tevva Ordinary Shareholders (as Holdco Shareholders at the effective
time of the Arrangement), as it has been or may be amended or supplemented in accordance
with the Arrangement Agreement or at the direction of the Supreme Court of British Columbia
(the “Court”) with the consent of Tevva and EMV, the full text of which
is set out in Schedule [●] to the Circular (the “Plan of Arrangement”),
is hereby authorized, approved and adopted. |
| 3. | The Arrangement
Agreement, the actions of the directors of Tevva in approving the Arrangement and any amendments
thereto and the actions of the officers of Tevva in executing and delivering the Arrangement
Agreement and any amendments thereto are hereby confirmed, ratified, authorized and approved. |
| 4. | Notwithstanding
that this resolution has been passed (and the Arrangement adopted) or that the Arrangement
has been approved by the Supreme Court of British Columbia, the directors of Tevva are hereby
authorized and empowered, without further notice to, or approval of, any securityholders
of Tevva: |
| (a) | to
amend the Arrangement Agreement or the Plan of Arrangement to the extent permitted by the
Arrangement Agreement or the Plan of Arrangement; or |
| (b) | subject
to the terms of the Arrangement Agreement, not to proceed with the Arrangement. |
| 5. | Any one
or more directors or officers of Tevva is hereby authorized, for and on behalf and in the
name of Tevva, to execute and deliver, whether under corporate seal of Tevva or not, all
such agreements, applications, forms, waivers, notices, certificates, confirmations and other
documents and instruments and to do or cause to be done all such other acts and things as
in the opinion of such director or officer may be necessary, desirable or useful for the
purpose of giving effect to these resolutions, the Arrangement Agreement and the completion
of the Plan of Arrangement in accordance with the terms of the Arrangement Agreement, including: |
| (a) | all
actions required to be taken by or on behalf of Tevva, and all necessary filings and obtaining
the necessary approvals, consents and acceptances of appropriate regulatory authorities;
and |
| (b) | the
signing of the certificates, consents and other documents or declarations required under
the Arrangement Agreement or otherwise to be entered into by Tevva, such determination to
be conclusively evidenced by the execution and delivery of such document, agreement or instrument
or the doing of any such act or thing. |
PART B – AMENDMENT RESOLUTION
BE IT RESOLVED, AS A SPECIAL RESOLUTION THAT:
| 1. | With effect
from the conclusion of the meeting the draft articles of association produced to
the meeting [appended hereto as Annex B-1] and, for the purposes of identification, initialled
by the Chairman be adopted as the articles of association of Tevva in substitution
for, and to the exclusion of, Tevva’s existing articles of association. |
PART C – PRE-EMPTION WAIVER RESOLUTIONS
BE IT RESOLVED, AS A SPECIAL RESOLUTION THAT:
| 1. | the pre-emption
rights contained in article 9.3 of Tevva’s existing articles of association or any
equivalent provision in the Tevva’s previous articles of association from time to time
be and are hereby retrospectively waived and disapplied in relation to each and every issue
and allotment of shares in the capital of Tevva prior to the date hereof to the extent such
disapplication and waiver was not obtained at the applicable time and that each and every
decision taken by the directors of Tevva to approve and register such issues of shares be
and are hereby fully ratified and approved. |
ANNEX B-1
ARTICLES OF ASSOCIATION
(see attached)
THE COMPANIES ACT 2006
PRIVATE COMPANY LIMITED BY SHARES
NEW
ARTICLES OF ASSOCIATION
of
TEWA MOTORS LIMITED 08368694
(the "Company")
(Adopted by a special resolution passed
on 5 August 2021 and amended by special resolution
passed on 2 March 2022)
1. Introduction
| 1.1 | The model articles for private companies
limited by shares contained or incorporated in Schedule 1 to the Companies (Model Articles)
Regulations 2008 (SI 2008/3229) as amended prior to the date of adoption of these articles
(the "Model Articles") shall apply to the Company, save insofar as they
are varied or excluded by, or are inconsistent with, the following Articles. |
| 1.2 | In these Articles and the Model Articles
any reference to any statutory provision shall be deemed to include a reference to each and
every statutory amendment, modification, reenactment and extension thereof from time to time. |
| 1.3 | In these Articles article headings are
used for convenience only and shall not affect the construction or interpretation of these
Articles. |
2. Defined
terms
In these Articles the following words and expressions shall
have the following meanings:
"A Ordinary Shares" means
the A ordinary shares of £0.0000015385 each in the capital of the Company, from time to time;
"A Ordinary Shareholders"
means the holders from time to time of A Ordinary Shares and an "A Ordinary Shareholder" shall have a corresponding
meaning;
"Act" means the Companies Act 2006 (as
amended from time to time);
"Acting in Concert" has the meaning given
to it in The City Code on Takeovers and Mergers
published by the Panel on Takeovers and Mergers (as amended
from time to time);
"Angel CoFund" means Angel CoFund (company
number: 07864831);
"Asset Sale" means
the completion of a sale by the Company (or another member of the Group) on bona fide arms' length terms of all, or substantially all,
of the business and assets of the Group (other than pursuant to a Holding Company Reorganisation);
"Asset Sale Price" means
an amount in USD$ equal to $95 multiplied by the number of Ordinary Shares in issue at Exit. By way of example, based on an issued ordinary
share capital of 7,208,751 at Exit, the Asset Sale Price would be $684,831,345 (being $95 x 7,208,751);
"Associated Government Entities" means:
| (a) | any UK Government departments, including
their executive agencies, other subsidiary bodies and other parts of UK Government; |
| (b) | companies wholly or partly owned by
UK Government departments and their subsidiaries; |
| (c) | non-departmental public bodies, other
public bodies, public corporations and their subsidiary bodies sponsored by UK Government
departments; and/or |
| (d) | any successors to any of the entities
set out in (a), (b) and (c) above or any new bodies which fall within the same criteria; |
"Auditors" means the auditors of
the Company from time to time;
"Bad Leaver" means an A Ordinary
Shareholder who ceases (or, if earlier, gives or receives notice to so cease) to be employed by the Company or another member
of the Group (and who does not continue as an employee of another Group member):
| (a) | in circumstances of gross misconduct,
fraud, negligence or a breach of confidentiality; |
| (b) | to become employed or engaged by, or
provide services to, a business or entity which is a Competitor; |
| (c) | where they have committed a major disciplinary
breach; or |
| (d) | in circumstances constituting fair
dismissal pursuant to section 98(2)(a) of the Employment Rights Act 1996; |
"Board" means the board of Directors
and any committee of the board constituted for the purpose of taking any action or decision contemplated by these Articles;
"Business Day" means a day on which
English clearing banks are ordinarily open for the transaction of normal banking business in the City of London (other than a Saturday
or Sunday);
"Civil Partner" means in relation
to a Shareholder, a civil partner (as defined in the Civil Partnership Act 2004) of the Shareholder;
"Competitor" means a company, partnership
or other entity which is included in the current Competitor List;
"Competitor List" means a list of
competitors of the Company (which shall be determined by the Board from time to time) maintained by the Company, a copy of which is available
to A Ordinary Shareholders on request;
"Controlling Interest" means an interest
in shares giving to the holder or holders control of the Company within the meaning of section 1124 of the Corporation Tax Act 2010;
"Date of Adoption" means the date
on which these Articles were adopted; "Director(s)" means a director or directors of the Company from time to time;
"Effective Termination
Date" means the date on which the A Ordinary Shareholder's employment terminates;
"Employee" means
an individual who is an employee or executive director of the Company or any member of the Group;
"Encumbrance" means
any mortgage, charge, security, interest, lien, pledge, assignment by way of security, equity, claim, right of pre-emption, option, covenant,
restriction, reservation, lease, trust, order, decree, judgment, title defect (including without limitation any retention of title claim),
conflicting claim of ownership or any other encumbrance of any nature whatsoever (whether or not perfected other than liens arising by
operation of law);
"Excluded Options"
means the option over 39,780 Ordinary Shares in the capital of the Company granted by the Company to Kulwant Sandher on 26 July 2021
and the option or warrant over 198,900 Ordinary Shares in the capital of the Company granted or to be granted by the Company to Bill
Calsbeck;
"Excluded Securities"
(i) securities to be issued pursuant to the conversion of the Future Fund convertible loan agreement; (ii) securities to be issued
or granted in connection with any Share Incentive Arrangement approved in accordance with the Investment Agreement; (iii) securities
to be issued under options and warrants approved by the Board; and (iv) securities to be issued in connection with any of the Company's
shares becoming listed on a recognised stock exchange on in connection with a special-purposes acquisition company transaction;
"Exit" means any of the following:
(a) a Listing;
(b) a Share
Sale; or
(c) an Asset
Sale;
"Family Trusts" means
trust(s) under which no immediate beneficial interest in any of the shares in question is for the time being vested in any person other
than a Shareholder who is an individual and/or Privileged Relations of that individual;
"Future Fund" means
UK FF Nominees Limited (registered in England and Wales with number 12591650);
"FF CLA" means
the convertible loan agreement dated 15 December 2020 between, amongst other, the Company and the Future Fund;
"Financial Hurdle"
means the price per Ordinary Share at an Exit (calculated on the basis of the Ordinary Shares in issue at Exit) being equal to, or
exceeding, the Hurdle Share Price, other than in the case of an Exit that is an Asset Sale where it means the consideration for such
a sale being equal to, or exceeding the Asset Sale Price. In the case of an Exit that is a Listing where a new holding company is put
on top of the Company as part of the structuring for the Listing, it means the price per Ordinary Share (calculated on the basis of the
Ordinary Shares in issue immediately prior to the new holding company being put on top of the Company) being equal to, or exceeding,
the Hurdle Share Price immediately prior to that new holding company being put on top of the Company;
"Fund Manager" means
a person whose principal business is to make, manage or advise upon investments in securities;
"Good Leaver" means
an A Ordinary Shareholder who ceases (or, if earlier, gives or receives notice to so cease) to be employed by the Company or another
member of the Group (and who does not continue as an employee of another Group member) and is not a Bad Leaver;
"Group" means the
Company and its subsidiary undertaking(s) (if any) from time to time;
"Hurdle Share Price" means
$95.00 per Ordinary Share, ignoring in every case any price impact that the A Ordinary Shares might otherwise have by virtue of their
issue and/or vesting;
"Institutional Investor"
means any fund, partnership, body corporate, trust or other person or entity whose principal business is to make investments or a
person whose business is to make, manage or advise upon investments for any of the foregoing, other than an Institutional Investor who
the Board determines in its reasonable discretion is a competitor with the business of the Company;
"a Member of the same Fund
Group" means if the Shareholder is a fund, partnership, company, syndicate or other entity whose business is managed by a Fund
Manager (an "Investment Fund") or a nominee of that person:
| (a) | any participant or partner in or member
of any such Investment Fund or the holders of any unit trust which is a participant or partner
in or member of any Investment Fund (but only in connection with the dissolution of the Investment
Fund or any distribution of assets of the Investment Fund pursuant to the operation of the
Investment Fund in the ordinary course of business); |
| (b) | any Investment Fund managed by that Fund
Manager; |
| (c) | any parent undertaking or subsidiary
undertaking of that Fund Manager, or any subsidiary undertaking of any parent undertaking
of that Fund Manager; or |
| (d) | any trustee, nominee or custodian of
such Investment Fund and vice versa; |
"a Member of the same Group"
means as regards any company, a company which is from time to time a parent undertaking or a subsidiary undertaking of that company
or a subsidiary undertaking of any such parent undertaking;
"Holding Company Reorganisation"
means any transaction involving the issue of shares in the capital of a New Holding Company to the Shareholders, the object or intent
of which is to interpose the New Holding Company as the sole owner of the Company such that immediately subsequent to such transaction:
| (a) | the number and class of shares comprised
in the issued share capital of the New Holding Company, the identity of the shareholders
of the New Holding Company, and the number and class of shares held by each such person matches
the issued share capital of the Company and the identity of Shareholders and the number and
class of Shares held by each such person immediately prior to such transaction (save for
the fact that such shares are issued by a different company); |
| (b) | the rights attaching to each class of
share comprised in the New Holding Company matches those rights attaching to the like class
of share comprised in the share capital of the Company immediately prior to such transaction
(save for the fact that such shares are issued by a different company and/or in a different
jurisdiction with attendant differences in company law); and |
| (c) | the constitutional documents of the New
Holding Company are the same in substantive effect as the articles of association of
the Company immediately prior to such transaction (save for the fact that they apply in respect
of a different company, and as to matters and modifications to reflect that the New Holding
Company may be incorporated in a jurisdiction other than England and Wales); |
"Investment Agreement"
means the investment agreement dated 11 August 2020 between the Investors, Tevva Jersey and the Company (each such term as defined
therein) as amended from time to time;
"Investor Majority Consent"
has the meaning given to that term in the Investment Agreement;
"Leaver" means a Good Leaver or a Bad Leaver,
as applicable;
"Listing" means admission
of any of the Company's ordinary share capital to the Official List of the Financial Conduct Authority (with consequent admission to
trading to the Main Market of the London Stock Exchange) or admission of any of the Company's ordinary share capital to any other internationally
recognised investment exchange (which shall for these purposes be construed as the stock exchanges that are determined to be "recognised
stock exchanges" in accordance with Section 1005 of the Income Tax Act 2007 plus the Alternative Investment Market of the London
Stock Exchange);
"London Stock Exchange"
means London Stock Exchange plc or any successor body carrying on the business of the London Stock Exchange;
"Market Value" takes
the same meaning that it has for the purposes of Part VIII of the Taxation of Chargeable Gains Act 1992 as modified by section 431(1)
of the Income Tax (Earnings and Pensions) Act 2003;
"New Holding Company"
means a newly formed holding company incorporated in any jurisdiction which has resulted from a Holding Company Reorganisation;
"New Securities" means
any shares or other securities in the Company or shares, or other securities convertible into, or carrying the right to subscribe for,
shares in the Company, in each case issued by the Company after the Date of Adoption (other than options to subscribe for Shares under
any Share Incentive Arrangement);
"Ordinary Shareholders"
means the holders from time to time of Ordinary Shares and an "Ordinary Shareholder" shall have a corresponding
meaning;
"Ordinary Shares" means
the ordinary shares of £0.0000015385 each in the capital of the Company, from time to time and for the avoidance of doubt shall
not include the A Ordinary Shares;
"Permitted Transfer" means a transfer
of Shares in accordance with Article 11; "Permitted Transferee" means:
| (a) | in relation to a Shareholder (other than
an A Ordinary Shareholder) who is an individual, any of his Privileged Relations, Trustees
or Qualifying Company; |
| (b) | in relation to a Shareholder which is
an undertaking means any Member of the same Group; |
| (c) | in relation to a Shareholder which is
an Investment Fund means any Member of the same Fund Group; |
| (d) | in relation to Angel Co Fund means (in
connection only with a restructuring of Angel Co Fund and/or a sale of some or all of its
portfolio): |
| (i) | any person, body, firm or partnership
whose business comprises to a material extent the holding for investment purposes of securities
in and/or the provision of debt and other financial facilities to United Kingdom unlisted
companies and includes any subsidiary, nominee, custodian or manager used by such person,
firm or partnership to hold such investments or to make available such facilities; or |
| (ii) | any investment trust company whose shares
are listed on a recognised investment exchange which is also managed by Angel Co Fund or
the manager of Angel Co Fund or by a holding company of such management company or any subsidiary
company of such holding company; or |
| (iii) | any partner of a limited partnership
(or their nominees) acting in such capacity (provided such transfer is made in accordance
with the fund or partnership agreement governing such entity or partnership) or to the holders
of units in a unit trust (or their nominees) on a distribution in kind or otherwise under
the relevant partnership agreement or trust instrument; or |
| (iv) | in respect of any Shares which are held
by Angel Co Fund on behalf of any collective investment scheme (within the meaning of section
235 of Financial Services and Markets Act 2000), may be transferred to participants (within
the meaning of that section), in the scheme in question; or |
| (v) | the beneficial owner of the Shares, including,
without limitation, to any person who becomes a general partner, nominee or trustee for a
limited partnership, until trust or investment trust in place of, or in addition to, Angel
Co Fund; |
"Privileged Relation"
in relation to a Shareholder who is an individual member or deceased or former member means a spouse, Civil Partner, child or grandchild
(including step or adopted or illegitimate child and their issue);
"Proceeds of Sale" means
the consideration payable whether in cash or otherwise to Shareholders in respect of their Shares under or pursuant to an Exit less any
fees, costs and expenses payable as approved by the Board and with Investor Majority Consent;
"Qualifying Company" means
a company in which a Shareholder or Trustee(s) hold the whole of the share capital and which they control;
"Shareholder" means any holder of any Shares;
"Share Incentive Arrangement"
means any share award, share option award, share option plan or other share incentive arrangement of the Company for or to its Employees,
non-executive directors and/or consultants (other than the Excluded Options and shares acquired at the same price as a third party investor),
the terms of which have been approved by the Board and, for the avoidance of doubt, shall include the award of A Ordinary Shares to Employees
in accordance with these Articles;
"Shares" means the Ordinary Shares
and the A Ordinary Shares from time to time;
“Share Sale” means
the completion of the sale of (or the grant of a right to acquire or to dispose of) any of the Shares in the capital of the Company (in
one transaction or as a series of transactions) which will result in the purchaser of those shares (or grantee of that right) and persons
Acting in Concert with him together acquiring a Controlling Interest in the Company, except where following completion of the sale and
(in the case of a series of transactions) any other connected transactions the shareholders in the purchasing company and the proportion
of shares held by each of them are the same as the Shareholders and their shareholdings in the Company immediately prior to the sale.
"Tevva Jersey" means
Tevva Motors (Jersey) Limited (company number: 124393); and "Trustees" means the trustee(s) of a Family Trust.
| 3. | Proceedings of
Directors |
| 3.1 | The quorum for Directors'
meetings shall be two Directors including the director appointed pursuant to clause 8.2 of
the Investment Agreement (save that where an interest of a Director is being authorised by
other Directors in accordance with section 175(5)(a) of the Act, the interested Director
shall not be included in the quorum required for the purpose of such authorisation but shall
otherwise be included for the purpose of forming the quorum at the meeting). Article 11(2)
of the Model Articles shall not apply to the Company. |
| 3.2 | In the case of any
equality of votes, the chairman shall not have a second or casting vote. Article 13 of the
Model Articles shall not apply to the Company. |
Articles 15 and 25 to 27 of the
model articles for public companies limited by shares contained in Schedule 3 of the Companies (Model Articles) Regulations 2008 (SI
2008/3229) shall apply to the Company.
| 5.1 | Subject to the provisions
of the Act, and provided that he has declared to the Directors the nature and extent of his
interest, a Director may vote at a meeting of the Directors or of a committee of the Directors
on any resolution concerning a matter in which he has an interest, whether a direct or an
indirect interest, or in relation to which he has a duty and shall also be counted in reckoning
whether a quorum is present at such a meeting. Article 14 of the Model Articles shall not
apply to the Company. |
Specific interests of a Director
| 5.2 | Subject to the provisions
of the Act, and provided that he has declared to the Directors the nature and extent of his
interest, a Director may (save as to the extent not permitted by law from time to time),
notwithstanding his office, have an interest of the following kind: |
| (a) | where a Director
(or a person connected with him) is party to or in any way directly or indirectly interested
in, or has any duty in respect of, any existing or proposed contract, arrangement or transaction
with the Company or any other undertaking in which the Company is in any way interested; |
| (b) | where a Director
(or a person connected with him) is a director, employee or other officer of, or a party
to any contract, arrangement or transaction with, or in any way interested in, any body corporate
promoted by the Company or in which the Company is in any way interested; |
| (c) | where a Director
(or a person connected with him) is a Shareholder or a shareholder in, employee, director,
member or other officer of, or consultant to, a parent undertaking of, or a subsidiary undertaking
of a parent undertaking of, the Company; |
| (d) | where a Director
(or a person connected with him) holds and is remunerated in respect of any office
or place of profit (other than the office of auditor) in respect of the Company or
body corporate in which the Company is in any way interested; |
| (e) | where a Director is given a guarantee,
or is to be given a guarantee, in respect of an obligation incurred by or on behalf of the
Company or any body corporate in which the Company is in any way interested; or |
| (f) | where a Director (or a person connected
with him or of which he is a member or employee) acts (or any body corporate promoted by
the Company or in which the Company is in any way interested of which he is a director, employee
or other officer may act) in a professional capacity for the Company or any body corporate
promoted by the Company or in which the Company is in any way interested (other than as auditor)
whether or not he or it is remunerated for this. |
| 6.1 | The Ordinary Shares and
the A Ordinary Shares constitute separate classes of shares. |
| 6.2 | Whenever the share capital of the Company
is divided into different classes of Shares, the special rights attached to any such class
may only be varied or abrogated (either whilst the Company is a going concern or during or
in contemplation of a winding up) with the consent in writing of the holders of at least
75% in nominal value of the issued Shares of that class and with Investor Majority Consent. |
| 7. | Rights attaching
to Shares |
| 7.1 | The A Ordinary Shares shall not entitle any
holder thereof to receive notice of, to attend, to speak or to vote at any general meeting
of the Company nor to receive or vote on, or otherwise constitute an eligible member for
the purposes of, proposed written resolutions of the Company. |
| 7.2 | The A Ordinary Shares shall
carry no right to receive: |
| (a) | dividends or other distributions out of the revenues or profits of
the Company; or |
| (b) | a distribution of assets on a liquidation or a return of capital. |
Notwithstanding this Article, in the
event of any distribution constituting a distribution of Proceeds of Sale, such Proceeds of Sale shall be distributed in accordance with
Article 8.
| 7.3 | The Ordinary Shares shall
carry full voting rights and rights to dividends and distributions. |
| 8.1 | On an Exit the Proceeds
of Sale shall be distributed as set out in this Article 8. |
| 8.2 | On an Exit that is a Share
Sale: |
| (a) | where the Financial Hurdle is satisfied,
the Proceeds of Sale shall be distributed among the Ordinary Shareholders and the A Ordinary
Shareholders pro rata to the number of Ordinary Shares and A Ordinary Shares held by each
of them (as if the Ordinary Shares and A Ordinary Shares constituted one and the same class);
and |
| (b) | where the Financial Hurdle is not satisfied,
the Proceeds of Sale shall be distributed among the Ordinary Shareholders pro rata to the
number of Ordinary Shares held by each of them. |
| 8.3 | Where the Financial
Hurdle is not satisfied (such that Article 8.2(a) applies), the A Ordinary Shares shall have
no right to participate in, or in a distribution of, such Proceeds of Sale. |
| 8.4 | On an Exit that is
an Asset Sale, the Proceeds of Sale shall be distributed (to the extent the Company is lawfully
permitted to do so) on the basis, and in the order of priority, set out in Article 8.2 provided
always that if it is not lawful for the Company to distribute the Proceeds of Sale in accordance
with the provisions of these Articles, the Shareholders shall take any action reasonably
required by the Board so that Article 8 applies or is given effect to. |
| 8.5 | On an Exit that is
a Listing, the A Ordinary Shares shall benefit from the economic effect of the Listing to
the same extent that they would have done pursuant to Article 8.2 had the Exit at that time
been a Share Sale (such economic benefit to be delivered by way of reorganisation of the
Company's share capital so that they become ordinary shares, or by being exchanged into shares
in any new vehicle that is to be listed, or otherwise and in these circumstances the number
of shares delivered shall be rounded down to the nearest number of whole shares). |
| 8.6 | For the avoidance
of doubt and, notwithstanding anything to the contrary in these Articles, the economic value
of A Ordinary Shares shall be as solely provided in this Article 8. |
| 8.7 | For the purposes of
this Article 8, the Board shall confirm as soon as reasonably practicable whether the Financial
Hurdle has been satisfied prior to an Exit. |
| 9. | Allotment of new
shares or other securities: pre-emption |
| 9.1 | Subject to the remaining
provisions of this Article 9, the Directors are generally and unconditionally authorised
for the purpose of section 551 of the Act to exercise any power of the Company to: |
| (c) | grant rights to subscribe
for or convert any securities into Shares, |
to any persons, at any times
and subject to any terms and conditions as the Directors think proper, provided that:
| (1) | in relation to the Ordinary Shares,
this authority shall be limited to a maximum nominal amount of £7.6925; |
| (2) | in relation to the A Ordinary Shares,
this authority shall be limited to a maximum nominal amount of £1.4882; |
| (3) | this authority
shall only apply insofar as the Company has not by resolution waived or revoked it; |
| (4) | this authority
may only be exercised for a period of five years commencing upon the Date of Adoption, save
that the Directors may make an offer or agreement which would or might require Shares to
be allotted or rights granted to subscribe for or convert any security into Shares after
the expiry of such authority (and the Directors may allot Shares or grant such rights in
pursuance of an offer or agreement as if such authority had not expired). |
This authority is in addition to all subsisting authorities
to the extent unused.
| 9.2 | In accordance with
section 567(1) of the Act, sections 561 and 562 of the Act do not apply to an allotment of
equity securities made by the Company. |
| 9.3 | Unless otherwise determined by special resolution,
any New Securities shall, before they are allotted or granted on any terms, be first offered
by the Company in writing to each Ordinary Shareholder by: |
| (a) | giving details of the number and subscription price of the New Securities; |
| (b) | inviting him to apply for the New Securities
at the subscription price (being on no less favourable terms); |
| (c) | stating that he will have a period of
at least 5 days from the date of the notice in which to apply; |
| (d) | subject to Article 9.8, stating
that, if there is competition among the Ordinary Shareholders for the New Securities, the
New Securities will be allocated to him in proportion (as nearly as may be) to his
existing holdings of Ordinary Shares (his "Proportionate Allocation"); |
| (e) | subject to Article 9.8, inviting him
to indicate if he is willing to purchase New Securities in excess of his Proportionate Allocation
("Extra Securities") and, if so, the number of Extra Securities. |
| 9.4 | Subject to Article 9.8, on expiry of an offer
made in accordance with Article 9.3 (or sooner if applications or refusals have been received
from all Ordinary Shareholders and all requisite approvals have been given), the Company
shall allot or grant (as the case may be) the New Securities as follows: |
| (a) | if the total number of New Securities
applied for is equal to or less than the New Securities offered, each Ordinary Shareholder
shall be allocated the number applied for by him; or |
| (b) | if the total number of New Securities
applied for is more than the New Securities offered, each Shareholder shall be allocated
his Proportionate Allocation or, if less, the number of New Securities for which he has applied;
and |
| (c) | applications for Extra Securities shall
be allocated in accordance with such applications or, in the event of competition, among
those Ordinary Shareholders applying for Extra Securities in proportion to their Proportionate
Allocations but so that no applicant shall be allocated more Extra Securities than he has
applied for and so that if there is a surplus further allocations shall be made on the same
basis (and if necessary more than once) until all New Securities have been allocated; |
| (d) | fractional entitlements shall be rounded
to the nearest whole number; |
following which the Directors may,
subject to these Articles and the Act, allot or grant (as the case may be) such New Securities as have not been taken up in such manner
as they think fit, but on no less favourable terms.
| 9.5 | No Shares shall be allotted to any Employee,
Director, prospective Employee or prospective director of the Company who in the opinion
of the Board is: |
| (a) | subject to taxation in the United Kingdom,
unless such person has entered into a joint section 431(1) Income Tax (Earnings and Pensions)
Act 2003 election with the Company (or their employer if different); or |
| (b) | subject to taxation in the United States
of America, unless such person has entered into an election under section 83(b) of the Internal
Revenue Code as amended, in each case if so required by the Company. |
| 9.6 | The Company may issue Shares which are to
be redeemed, or are liable to be redeemed at the option of the Company or the holder. The
Directors are not authorised to determine the terms, conditions and manner of redemption
unless express authorisation to do so is given by the Shareholders by ordinary resolution.
Article 22(2) of the Model Articles shall not apply to the Company. |
| 9.7 | Subject to the provisions of Article 9.8,
any New Securities offered under this Article 9 to Tevva Jersey shall be offered directly
to the shareholders of Tewa Jersey on a "look through basis". A "look through
basis" shall mean that the pre-emption rights of Tevva Jersey shall be offered to the
shareholders of Tevva Jersey pro-rata to the number of shares in Tevva Jersey held by such
shareholders. |
| 9.8 | Notwithstanding the provisions of Articles
9.1 - 9.7, in the event that any New Securities are issued by the Company, the Company shall
ensure that the pre-emption rights offered to Bharat Forge Limited shall not be less than
10% of the total amount of New Securities to be issued. In the event that the total number
of New Securities to be issued to Bharat Forge Limited are less than 10% (on a pro rata basis),
then additional pre-emption rights shall be offered to Bharat Forge Limited by means of re-allocating
to Bharat Forge Limited, the preemption rights held by other Tevva Jersey shareholders calculated
on a "look through" basis as follows: |
| (a) | firstly, by reallocating any such pre-emption
rights not taken up by other shareholders; and |
| (b) | secondly, by scaling down any such pre-emption
rights held by other shareholders in Tevva Jersey on a pro rata basis, such that the rights
afforded to Bharat Forge Limited under this Article 9 shall not be less than 10%. |
| 9.9 | The provisions of Articles
9.2 - 9.8 (inclusive) shall not apply to: |
| (a) | any New Securities issued by the Company
to comply with its obligations under any instrument or agreement relating to convertible
debt; |
| (b) | any New Securities issued by the Company
in accordance with the terms of the Investment Agreement; or |
| (c) | any New Securities which are Excluded
Securities. |
| 10. | Transfers of
Shares — general |
| 10.1 | Other than in relation to a grant or the
subsistence of a floating charge over shares held by Angel CoFund in favour of its funders,
reference to the transfer of a Share in these Articles includes the transfer or assignment
of a beneficial or other interest in that Share or the creation of a trust or Encumbrance
over that Share and reference to a Share includes a beneficial or other interest in a Share. |
| 10.2 | Save as set out in Article 11.5 and Articles
13 to 16 (inclusive), no A Ordinary Shares may be transferred by an A Ordinary Shareholder. |
| 10.3 | If a Shareholder transfers or purports to
transfer a Share otherwise than in accordance with these Articles he will be deemed immediately
to have served a Transfer Notice in respect of all Shares held by him. |
| 10.4 | The Directors may refuse
to register a transfer of a Share if: |
| (a) | a Shareholder transfers a Share other
than in accordance with these Articles; |
| (b) | the transfer is to an Employee, Director
or prospective Employee or prospective director of the Company and such person has not entered
into a joint section 431(1) Income Tax (Earnings and Pensions) Act 2003 election with the
Company (or their employer if different) and/or a section 83(b) election if requested to
do so by the Company; or |
| (c) | the transferee is a person (or a nominee
for a person) who is a competitor with (or an associate (as determined in accordance with
section 435 of the Insolvency Act 1986) of a competitor with) the business of the Company
or with a subsidiary undertaking of the Company. |
Article 26(5) of the Model Articles shall be modified accordingly.
| 10.5 | The Directors may, as a condition to the
registration of any transfer of Shares, require the transferee to execute and deliver to
the Company a deed agreeing to be bound by the terms of any shareholders' agreement or similar
agreement in force between some or all of the Shareholders and the Company. |
| 10.6 | Articles 27 to 29 of the Model Articles
regarding transmission of shares shall not apply to the Company. |
| 10.7 | Any transfer of a Share by way of sale which
is required to be made under Articles 13 to 16 (inclusive) will be deemed to include a warranty
that the transferor sells with full title guarantee. |
| 11.1 | An Ordinary Shareholder (the "Original
Shareholder") may transfer all or any of his or its Shares to a Permitted Transferee
without restriction as to price or otherwise. |
| 11.2 | Shares previously transferred as permitted
by Article 11.1 may be transferred by the transferee to the Original Shareholder or any other
Permitted Transferee of the Original Shareholder without restriction as to price or otherwise. |
| 11.3 | Where, upon death of a Shareholder, the
persons legally or beneficially entitled to any Shares are Permitted Transferees of that
deceased Shareholder, the legal representative of the deceased Shareholder may transfer any
Share to those Permitted Transferees without restriction as to price or otherwise. |
| 11.4 | A transfer of any Shares approved by the
Board may be made without restriction as to price or otherwise and each transfer shall be
registered by the Directors. |
| 11.5 | Any Shares may at any time be transferred
where there is a sale of the entire issued share capital of the Company to a New Holding
Company, which has been approved by the Board and the holders of at least 60% of the Shares. |
| 11.6 | The Future Fund shall at any time be entitled
to transfer any shares in the capital of the Company that are held by the Future Fund, without
restriction as to price or otherwise and free of pre-emption rights howsoever expressed to: |
| (a) | any Associated Government Entities; or |
| (b) | an Institutional Investor that is acquiring
the whole or part (being not fewer than 10 companies, including the Company) of the
Future Fund's interest in a portfolio of investments which comprise or result from the conversion
of unsecured convertible loans substantially on the same terms as the FF CLA, provided always
that such transaction(s) is bona fide in all respects. |
| 12. | Transfers of Shares
subject to pre-emption rights |
| 12.1 | Save where the provisions
of Articles 11, 13 to 16 (inclusive) and 23 apply, any transfer of Shares by a Shareholder
shall be subject to the pre-emption rights contained in this Article 12. |
| 12.2 | A Shareholder who
wishes to transfer Shares (a "Seller") shall, except as otherwise provided
in these Articles, before transferring or agreeing to transfer any Shares give notice in
writing (a "Transfer Notice") to the Company specifying: |
| (c) | the number of Shares which he wishes
to transfer (the "Sale Shares"); |
| (d) | if he wishes to sell the Sale Shares to
a third party, the name of the proposed transferee; |
| (e) | the price at which he wishes to transfer
the Sale Shares; and |
| (f) | whether the
Transfer Notice is conditional on all or a specific number of the Sale Shares being sold
to Shareholders ( a "Minimum Transfer Condition"). |
If no cash price is specified
by the Seller, the price at which the Sale Shares are to be transferred (the "Transfer Price") must be agreed by the
Board (including Investor Director Consent). In addition, if the price is not specified in cash, an equivalent cash value price must
be agreed between the Seller and the Board (including Investor Director Consent). In both cases, the price will be deemed to be the Fair
Value of the Sale Shares if no price is agreed within 5 Business Days of the Company receiving the Transfer Notice.
| 12.3 | Except with the consent
of the Board or as otherwise specified in these Articles, no Transfer Notice once given or
deemed to have been given under these Articles may be withdrawn. |
| 12.4 | A Transfer Notice
constitutes the Company the agent of the Seller for the sale of the Sale Shares at the Transfer
Price. |
| 12.5 | As soon as practicable
following the receipt of a Transfer Notice, the Board shall offer the Sale Shares for sale
to the Ordinary Shareholders in the manner set out in Article 12.6. Each offer must be in
writing and give details of the number and Transfer Price of the Sale Shares offered. |
| (a) | The Board shall
offer the Sale Shares pursuant to the Priority Rights to all Ordinary Shareholders specified
in the offer other than the Seller (the "Continuing Shareholders") inviting
them to apply in writing within the period from the date of the offer to the date 10 Business
Days after the offer (inclusive) (the "Offer Period") for the maximum number
of Sale Shares they wish to buy. |
| (b) | If the Sale Shares
are subject to a Minimum Transfer Condition then any allocation made under Article 12.6 will
be conditional on the fulfilment of the Minimum Transfer Condition. |
| (c) | If, at the end
of the Offer Period, the number of Sale Shares applied for is equal to or exceeds the number
of Sale Shares, the Board shall allocate the Sale Shares to each Continuing Shareholder who
has applied for Sale Shares in the proportion (fractional entitlements being rounded to the
nearest whole number) which his existing holding of the relevant class(es) of Shares bears
to the total number of the relevant class(es) of Shares held by those Continuing Shareholders
who have applied for Sale Shares which procedure shall be repeated until all Sale Shares
have been allocated but no allocation shall be made to a Shareholder of more than the maximum
number of Sale Shares which he has stated he is willing to buy. |
| (d) | If, at the end
of the Offer Period, the number of Sale Shares applied for is less than the number of Sale
Shares, the Board shall allocate the Sale Shares to the Continuing Shareholders in accordance
with their applications and the balance will be dealt with in accordance with Article 12.8(e). |
| 12.7 | Completion of transfer
of Sale Shares |
| (a) | If the Transfer Notice
includes a Minimum Transfer Condition and the total number of Shares applied for does not
meet the Minimum Transfer Condition the Board shall notify the Seller and all those to whom
Sale Shares have been conditionally allocated under Article 12.6 stating the condition has
not been met and that the relevant Transfer Notice has lapsed with immediate effect. |
| (i) | the Transfer Notice
does not include a Minimum Transfer Condition; or |
| (ii) | the Transfer Notice
does include a Minimum Transfer Condition and allocations have been made in respect of all
or the minimum required number of the Sale Shares, |
| | the Board shall, when
no further offers are required to be made under Article 12, give written notice of allocation
(an "Allocation Notice") to the Seller and each Shareholder to whom Sale
Shares have been allocated (an "Applicant") specifying the number of Sale
Shares allocated to each Applicant and the place and time (being not less than 5 Business
Days nor more than 10 Business Days after the date of the Allocation Notice) for completion
of the transfer of the Sale Shares. |
| (c) | Upon service of
an Allocation Notice, the Seller must, against payment of the Transfer Price, transfer the
Sale Shares in accordance with the requirements specified in it. |
| (c) | If the Seller fails to
comply with the provisions of Article 12.8(c): |
| (i) | the chairman of
the Company or, failing him, one of the directors, or some other person nominated by a resolution
of the Board, may on behalf of the Seller: |
| (A) | complete, execute
and deliver in his name all documents necessary to give effect to the transfer of
the relevant Sale Shares to the Applicants; |
| (B) | receive the Transfer
Price and give a good discharge for it; and |
| (C) | (subject to the
transfer being duly stamped) enter the Applicants in the register of Shareholders as the
holders of the Shares purchased by them; and |
| (ii) | the Company shall
pay the Transfer Price into a separate bank account in the Company's name on trust (but without
interest) or otherwise hold the Transfer Price on trust for the Seller until he has delivered
to the Company his certificate or certificates for the relevant Shares (or an indemnity
for lost certificate in a form acceptable to the Board). |
| (d) | If an Allocation
Notice does not relate to all the Sale Shares then, subject to Article 12.8(f), the
Seller may, within eight weeks after service of the Allocation Notice, transfer the
unallocated Sale Shares to any person at a price at least equal to the Transfer Price. |
| (e) | The right of the Seller to transfer Shares
under Article 12.8(e) does not apply if the Board is of the opinion on reasonable grounds
that: |
| (i) | the transferee is a person (or a nominee
for a person) who the Board determines in their absolute discretion is a competitor with
(or an Associate of a competitor with) the business of the Company or with a Subsidiary Undertaking
of the Company; |
| (ii) | the sale of the Sale Shares is not bona
fide or the price is subject to a deduction, rebate or allowance to the transferee; or |
| (iii) | the Seller has failed or refused to
provide promptly information available to it or him and reasonably requested by the Board
for the purpose of enabling it to form the opinion mentioned above. |
| 13. | Compulsory transfers
— general |
| 13.1 | A person entitled to a Share in consequence
of the bankruptcy of a Shareholder shall be deemed to have given a Transfer Notice in respect
of that Share at a time determined by the Directors. |
| 13.2 | If a Shareholder which is a company, either
suffers or resolves for the appointment of a liquidator, administrator or administrative
receiver over it or any material part of its assets, the relevant Shareholder (and all its
Permitted Transferees) shall be deemed to have given a Transfer Notice in respect of all
the Shares held by the relevant Shareholder and its Permitted Transferees save to the extent
that, and at a time, the Directors may determine. |
| 13.3 | If a Permitted Transferee ceases to be a
Permitted Transferee of the Original Shareholder, the Permitted Transferee must not later
than five Business Days after the date on which the Permitted Transferee so ceases, transfer
the Shares held by it to the Original Shareholder or another Permitted Transferee of the
Original Shareholder without restriction as to price or otherwise, failing which it will
be deemed to have given a Transfer Notice in respect of those Shares. |
| 13.4 | On the death, bankruptcy, liquidation, administration
or administrative receivership of a Permitted Transferee (other than a joint holder) his
personal representatives or trustee in bankruptcy, or its liquidator, administrator or administrative
receiver must within five Business Days after the date of the grant of probate, the making
of the bankruptcy order or the appointment of the liquidator, administrator or the administrative
receiver execute and deliver to the Company a transfer of the Shares held by the Permitted
Transferee without restriction as to price or otherwise. The transfer shall be to the Original
Shareholder if still living (and not bankrupt or in liquidation) or, if so directed by the
Original Shareholder, to any Permitted Transferee of the Original Shareholder. If the transfer
is not executed and delivered within five Business Days of such period or if the Original
Shareholder has died or is bankrupt or is in liquidation, administration or administrative
receivership, the personal representative or trustee in bankruptcy or liquidator, administrator
or administrative receiver will be deemed to have given a Transfer Notice. |
| 13.5 | If a Share remains registered in the name
of a deceased Shareholder for longer than one year after the date of his death the Directors
may require the legal personal representatives of that deceased Shareholder either: |
| (a) | to effect a Permitted Transfer of such
Shares (including for this purpose an election to be registered in respect of the Permitted
Transfer); or |
| (b) | to show to the satisfaction of the Directors
that a Permitted Transfer will be effected before or promptly upon the completion of the
administration of the estate of the deceased Shareholder. |
If either requirement in this Article
13.5 shall not be fulfilled to the satisfaction of the Directors a Transfer Notice shall be deemed to have been given in respect of each
such Share save to the extent that, the Directors may otherwise determine.
| 13.6 | If there is a change in control (as control
is defined in section 1124 of the Corporation Tax Act 2010) of any Shareholder which is a
company (other than Angel CoFund), it shall be bound at any time, if and when required in
writing by the Directors to do so, to give (or procure the giving in the case of any Permitted
Transferee and/or nominee) a Transfer Notice in respect of all the Shares registered in its
name, its Permitted Transferee name and their respective nominees' names save that, in the
case of the Permitted Transferee, it shall first be permitted to transfer those Shares back
to the Original Shareholder from whom it received its Shares or to any other Permitted Transferee
of the Original Shareholder before being required to serve a Transfer Notice. |
| 14. | Drag-along and New
Holding Company
Drag-along |
| 14.1 | If the holders of more than 60% of the Ordinary
Shares (the “Selling Shareholders”) wish to transfer all their Shares
(the “Sellers' Shares”) to a proposed purchaser who has made an offer
on arm's length terms (the “Proposed Purchaser”), the Selling Shareholders
shall have the option (the “Drag Along Option”) to require all other holders
of Shares (the “Called Shareholders”) to sell and transfer all their Shares
(the “Called Shares”) to the Proposed Purchaser or as the Proposed Purchaser
shall direct in accordance with the provisions of this Article 14. |
| 14.2 | The Selling Shareholders may exercise the
Drag Along Option by giving written notice to that effect (a “Drag Along Notice”)
to the Company (which the Company shall promptly send to the Called Shareholders) at any
time before the transfer of the Sellers' Shares to the Proposed Purchaser. The Drag Along
Notice shall specify that the Called Shareholders are required to transfer all their Called
Shares pursuant to this Article 14, the person to whom the Called Shares are to be transferred,
the consideration for which the Called Shares are to be transferred and the proposed date
of the transfer. |
| 14.3 | Drag Along Notices shall be irrevocable but
will lapse if for any reason there is not a sale of the Sellers' Shares by the Selling Shareholders
to the Proposed Purchaser within 40 Business Days of service of the Drag Along Notice (“Lapse
Date”). The Selling Shareholders shall be entitled to serve further Drag Along
Notices following the lapse of any particular Drag Along Notice and this Article 14 shall
apply mutatis mutandis and the term “Lapse Date” shall be construed accordingly. |
| 14.4 | The consideration (in cash of otherwise)
for which the Called Shareholders shall be obliged to sell each of the Called Shares shall,
after taking into account the provisions of Article 8 to determine the quantum of the Proceeds
of Sale due to the Called Shareholders, be on terms no less favourable than those obtained
by the Selling Shareholders from the Proposed Purchaser (it being understood (i) that the
form of consideration received by the Called Shareholders holding A Ordinary Shares may be
different to that received by the other Shareholders (for example cash instead of shares
or securities), and (ii) that the Called Shareholders holding A Ordinary Shares will not
be entitled to receive any consideration if the Financial Hurdle is not satisfied). |
| 14.5 | No Drag Along Notice shall require a Called
Shareholder to agree to any terms except those specifically provided for in this Article
14. |
| 14.6 | Completion of the sale of the Called Shares
to the Proposed Purchaser (or as it may direct) shall take place on the Completion Date.
Completion Date means the date of completion of the sale of the Sellers' Shares to the Proposed
Purchaser (or as it may direct) ("Completion"). |
| 14.7 | Within five Business Days of the Company
serving a Drag Along Notice on the Called Shareholders (the “Deadline”),
the Called Shareholders shall deliver (and, as applicable, execute completed but undated
(it being agreed that any Director be authorised to date the same with the Completion Date))
the following to the Company: |
| 14.7.1 | stock transfer forms for their Shares
in favour of the Proposed Purchaser or as the Proposed Purchaser shall direct; |
14.7.2 the
relevant share certificate(s) (or an indemnity for lost share certificate);
14.7.3 if
requested by the Company, a voting power of attorney;
| 14.7.4 | if requested by the Company, a declaration
of trust in favour of the Proposed Purchaser (or as the Proposed Purchaser shall direct)
in respect of the beneficial ownership of their Called Shares, whereby the Called Shareholder(s)
shall irrevocably declare that (a) the entire beneficial interest in the Called Shares and
(b) all rights attaching to the Called Shares and all dividends and other distributions and
money and such assets from time to time received or arising in respect of the Called Shares
are held from the date of the declaration of trust absolutely by the Called Shareholder(s)
on bare trust for the Proposed Purchaser; and |
| 14.7.5 | power of attorney appointing two Directors
as their joint and several attorneys with authority to execute and deliver on their behalf
such offer documents, consents on approvals required in connection with the transfer of their
Called Shares; |
in each case in
a form acceptable to the Directors.
| 14.8 | To the extent that Completion has not taken
place by the Lapse Date, the Called Shareholders shall be entitled to the return of the stock
transfer forms, powers of attorney (if requested), declaration of trust (if requested) and
share certificates (or the indemnity) for their relevant Shares and subject to Article 14.3
the Called Shareholders shall have no further rights or relevant obligations under this Article
14 in respect of their Shares in respect of the relevant Drag Along Notice served before
the relevant Lapse Date. |
| 14.9 | If a Called Shareholder fails to deliver
stock transfer form(s); powers of attorney (if requested), declaration of trust (if requested)
and share certificate(s) (or a suitable indemnity) for its Shares to the Company by the Deadline,
any Director is authorised to transfer the Called Shareholder’s Shares as agent and
/ or attorney on the Called Shareholder’s behalf (including without limitation entering
into the closest equivalent documentation to give the Proposed Purchaser the benefits and
rights in the voting power of attorney to the Proposed Purchaser (or as it may direct) to
the extent the Proposed Purchaser has, on the Completion Date, satisfied the Proceeds of
Sale due to such Called Shareholder (if any). The Board shall then authorise registration
of the transfer once appropriate stamp duty (if any) has been paid. After the Proposed Purchaser
(or such other person as it may direct) has been registered as the holder of the Called Shares,
the validity of such proceedings shall not be questioned by any person. Failure to produce
a share certificate (or a suitable indemnity) or any powers of attorney (if requested) or
any declarations of trust (if requested) shall not impede the registration of shares under
this Article 14. |
| 14.10 | On any person, following the issue of a
Drag Along Notice (the "Initial Drag Along Notice"), becoming a Shareholder
(or increasing an existing shareholding) including, without limitation, pursuant to the exercise
of any option, warrant or other right to acquire or subscribe for, or to convert any debt
or security into, Shares (a “New Shareholder”), a Drag Along Notice shall
be deemed to have been served on the New Shareholder on the same terms as the previous Drag
Along Notice who shall then be bound to sell and transfer all Shares so acquired to the Proposed
Purchaser or as the Proposed Purchaser may direct and the provisions of this Article 14 shall
apply, with the necessary changes, to the New Shareholder except that completion of the sale
of the Shares shall take place on the Completion Date for the Called Shares the subject of
the Initial Drag Along Notice or immediately upon the New Shareholder becoming a Shareholder,
if later. |
New Holding Company
| 14.10 | In the event of a
Holding Company Reorganisation approved by the Board and the holders of at least 60% of the
Ordinary Shares (a "Proposed Reorganisation"), all Shareholders shall (a)
to the extent entitled to do so, consent to, vote for, raise no objections to
and waive any applicable rights in connection with the Proposed Reorganisation and (b) take
all such actions to tender their Shares as required pursuant to the Proposed Reorganisation
(the "Reorganisation Actions"). The Shareholders shall be required to take
all Reorganisation Actions with respect to the Proposed Reorganisation as are required by
the Board to facilitate the Proposed Reorganisation. If any Shareholder fails to comply with
the provisions of this Article, the Company shall be constituted the agent of each defaulting
Shareholder for taking the Reorganisation Actions as are necessary to effect the Proposed
Reorganisation and the Directors may authorise an officer or member to execute and deliver
on behalf of such defaulting Shareholder the necessary documents to effect the Proposed Reorganisation,
including, without limitation, any share exchange agreement and/or stock transfer form. |
| 14.11 | The Company shall
procure that the New Holding Company shall ensure that the shares issued by it to the Shareholders
(or a subsequent holder, as the case may be) pursuant to the Holding Company Reorganisation
will be credited as fully paid as to the amount determined in accordance with this Article
and which new shares shall be subject to the constitutional documents of the New Holding
Company and otherwise (subject to the express provisions of such constitutional documents)
have the same rights as all other New Holding Company shares of the same class in issue at
the time (other than as regards any dividend or other distribution payable by reference to
a record date preceding the date of allotment and issue of such New Holding Company shares). |
| 14.12 | On any person, following the date of completion
of a Holding Company Reorganisation, becoming a Shareholder pursuant to the exercise of a
pre-existing option or warrant to acquire shares in the Company or pursuant to the conversion
of any convertible security of the Company or otherwise (a "New Reorganisation Shareholder"),
the New Reorganisation Shareholder shall then be bound to do all such acts and things necessary
in order to transfer all such resulting shares to the New Holding Company, and the provisions
of this Article shall apply with the necessary changes to the New Reorganisation Shareholder. |
| 15. | Mandatory Offer on a Change of Control |
| 15.1 | Except in the case of Permitted Transfers
and transfers pursuant to Article 14, after going through the procedure in Article 12, the
provisions of Article 15.2 will apply if one or more Proposed Sellers propose to transfer
in one or a series of related transactions any Shares (the "Proposed Transfer")
which would, if put into effect, result in any Proposed Purchaser (and Associates of
his or persons Acting in Concert with him) acquiring a Controlling Interest in the
Company. |
| 15.2 | A Proposed Seller must, before making a
Proposed Transfer procure the making by the Proposed Purchaser of an offer (the "Offer")
to the other Shareholders to acquire all of the Shares for a consideration per share
the value of which is at least equal to the Specified Price (as defined in Article 15.7). |
| 15.3 | The Offer must be given by written notice
(a "Proposed Sale Notice") at least 10 Business Days (the "Offer
Period") prior to the proposed sale date ("Proposed Sale Date"). The
Proposed Sale Notice must set out, to the extent not described in any accompanying documents,
the identity of the Proposed Purchaser, the purchase price and other terms and conditions
of payment, the Proposed Sale Date and the number of Shares proposed to be purchased by the
Proposed Purchaser (the "Proposed Sale Shares"). |
| 15.4 | If any other holder of Shares is not given
the rights accorded him by this Article, the Proposed Sellers will not be entitled to complete
their sale and the Company will not register any transfer intended to carry that sale into
effect. |
| 15.5 | If the Offer is accepted by any Shareholder
(an "Accepting Shareholder") within the Offer Period, the completion of
the Proposed Transfer will be conditional upon the completion of the purchase of all the
Shares held by Accepting Shareholders. |
| 15.6 | The Proposed Transfer is subject to the
pre-emption provisions of Article 12 but the purchase of the Accepting Shareholders' shares
shall not be subject to Article 12. |
| 15.7 | For the purpose of this
Article: |
| (a) | the expression "Specified
Price" shall mean: |
| (i) | in respect of the A Ordinary Shares where
the Financial Hurdle is not met, the fair market value of the A Ordinary Shares; and |
| (ii) | in respect of each Ordinary Share and,
where the Financial Hurdle is met, in respect of each A Ordinary Share, a sum in cash equal
to the highest price per Share offered or paid by the Proposed Purchaser: |
| (iii) | in the Proposed Transfer; or
|
| (iv) | in any related or
previous transaction by the Proposed Purchaser or any person Acting in Concert with the Proposed
Purchaser in the 12 months preceding the date of the Proposed Transfer, |
plus an amount equal to the Relevant
Sum, as defined in Article 15.7(b), of any other consideration (in cash or otherwise) paid or payable by the Proposed Purchaser or any
other person Acting in Concert with the Proposed Purchaser, which having regard to the substance of the transaction as a whole, can reasonably
be regarded as an addition to the price paid or payable for the Shares (the "Supplemental Consideration");
Relevant Sum = C ÷ A
| where: | A = number of Shares being sold
in connection with the relevant Proposed Transfer; |
| | |
| | C = the Supplemental Consideration. |
| 16.1 | Within the period
of six months commencing on the relevant Effective Termination Date the Board (with
Investor Majority Consent) may direct the Company to serve a notice on a Leaver notifying
them that they are, with immediate effect, deemed to have served one or more Transfer
Notices in respect of such number of A Ordinary Shares as is specified in the notice. The
provisions of Article 12 shall apply to any such Transfer Notice save as provided for in
this Article 16. |
| 16.2 | For the purposes of Article
16: |
| (a) | the Sale Shares shall comprise the above-mentioned Shares; |
| (b) | no proposed transferee shall be specified in the Transfer Notice; |
| (c) | the Transfer Price
at which the Shares are transferred shall be determined by Article 16.3; and |
| (d) | there shall be no Minimum Transfer Condition. |
| 16.3 | The Transfer Price shall
be: |
| (a) | in the case of a Good
Leaver, the nominal value of the relevant Shares or, if higher, the Market Value of the relevant
Shares (subject to the Board deciding otherwise); |
| (b) | in the case of a Bad
Leaver, the nominal value of the relevant Shares (subject to the Board deciding otherwise). |
16.4 The Sale Shares shall
be offered in the following order of priority:
| (a) | first to the Company (subject always to the provisions of the Act);
and |
| (b) | second, to any person(s) approved by the Board (with Investor Majority
Consent). |
| 16.5 | If any shareholder
does not execute transfer(s) in respect of shares registered in their name in accordance
with this Article 16, the defaulting shareholder will be deemed to have irrevocably appointed
any person nominated for the purpose by the Board to be their agent to execute, complete
and deliver a transfer of those shares in favour of the proposed purchaser against receipt
by the Company of the consideration due for the relevant shares. |
The Company's receipt of the consideration
due will be a good discharge to the purchaser, who will not be bound to see its application. The Company will hold the consideration
on trust for the relevant shareholder(s) without obligation to pay interest. Subject to stamping, the directors will without delay register
the transfer(s), after which the validity of such proceedings will not be questioned by any person. Each shareholder will surrender his
share certificate(s) (or, where appropriate provide an indemnity in respect of it in a form satisfactory to the directors), although
it will be no impediment to registration of shares under this Article that no share certificate has been produced. On (but not before)
such surrender or provision, the defaulting shareholder(s) will be entitled to the consideration for the shares transferred on their
behalf, without interest.
| 16.6 | Any transfer of Shares made in accordance
with this Article 16 will not be subject to any other restrictions on transfer contained
in these Articles. |
| 17. | Purchase of own
Shares |
Subject to the Act, the Company may
purchase its own Shares out of capital otherwise than in accordance with Chapter 5 of Part 18 of the Act, to the extent permitted
by section 692(1ZA) of the Act.
Subject to the provisions of the Act,
the Directors may appoint a secretary for such term, at such remuneration and upon such conditions as they may think fit; and any secretary
so appointed may be removed by them.
| 19.1 | Article 21 of the Model
Articles shall not apply to the Company. |
| 19.2 | Paragraph (c) of article 24(2) of the Model
Articles shall be amended by the replacement of the words "that the shares are fully
paid; and" with the words "the amount paid up on them. |
| 19.3 | The Company shall have a first and paramount
lien (the "Company's Lien") over every Share (whether or not a fully paid
share) for all and any indebtedness of any holder of it to the Company (whether a sole holder
or one of two or more joint holders), whether or not that indebtedness or liability is in
respect of the Shares concerned and whether or not it is presently payable. |
| 19.4 | The Company's Lien over
a Share: |
| (a) | shall take priority over any third party's interest in that Share;
and |
| (b) | extends to any dividend or other money
payable by the Company in respect of that Share and (if the lien is enforced and the Share
is sold by the Company) the proceeds of sale of that Share. |
The Directors may at any time decide
that a Share which is, or would otherwise be, subject to the Company's Lien shall not be subject to it, either wholly or in part.
| 19.5 | Subject to the provisions
of this Article 19, if: |
| (a) | a notice complying with Article 19.6
(a "Lien Enforcement Notice") has been given by the Company in respect of
a Share; and |
(b) the
person to whom the notice was given has failed to comply with it, the Company shall be entitled to sell that Share in such manner as
the Directors decide.
| 19.6 | A Lien Enforcement Notice: |
(a) may
only be given by the Company in respect of a Share which is subject to the Company's Lien, in respect of which a sum is payable and the
due date for payment of that sum has passed;
(b) must
specify the Share concerned;
(c) must
require payment of the sum payable within 14 days of the notice;
(d) must
be addressed either to the holder of the Share or to a person entitled to it by reason of the holder's death, bankruptcy or otherwise;
and
(e) must
state the Company's intention to sell the Share if the notice is not complied with.
| 19.7 | Where any Share is sold
pursuant to this Article 19: |
(a) the
Directors may authorise any person to execute an instrument of transfer of the Share to the purchaser or a person nominated by the purchaser;
and
(b) the
transferee shall not be bound to see to the application of the consideration, and the transferee's title shall not be affected by any
irregularity in or invalidity of the process leading to the sale.
| 19.8 | The net proceeds of any such sale (after
payment of the costs of sale and any other costs of enforcing the lien) must be applied: |
(a) first,
in payment of so much of the sum for which the lien exists as was payable at the date of the Lien Enforcement Notice;
(b) secondly,
to the person entitled to the Share at the date of the sale, but only after the certificate for the Share sold has been surrendered to
the Company for cancellation or an indemnity for lost certificate in a form acceptable to the Board has been given for any lost certificate,
and subject to a lien equivalent to the Company's Lien for any money payable (whether or not it is presently payable) as existing upon
the Share before the sale in respect of all Shares registered in the name of that person (whether as the sole registered holder or as
one of several joint holders) after the date of the Lien Enforcement Notice.
| 19.9 | A statutory declaration by a Director or
the company secretary that the declarant is a Director or the company secretary and that
a Share has been sold to satisfy the Company's Lien on a specified date: |
(a) shall
be conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the Share; and
(b) subject
to compliance with any other formalities of transfer required by these Articles or by law, shall constitute a good title to the Share.
| 20.1 | Subject to these Articles and the terms on
which Shares are allotted, the Directors may send a notice (a "Call Notice")
to a Shareholder who has not fully paid for that Shareholder's Share(s) requiring the
Shareholder to pay the Company a specified sum of money (a "call") which is payable
to the Company by that Shareholder when the Directors decide to send the Call Notice. |
(a) may
not require a Shareholder to pay a call which exceeds the total sum unpaid on that Shareholder's Shares (whether as to the Share's nominal
value or any sum payable to the Company by way of premium);
(b) shall
state when and how any call to which it relates it is to be paid; and
(c) may
permit or require the call to be paid by instalments.
| 20.3 | A Shareholder shall comply with the requirements
of a Call Notice, but no Shareholder shall be obliged to pay any call before 14 days have
passed since the notice was sent. |
| 20.4 | Before the Company has
received any call due under a Call Notice the Directors may: |
(a) revoke it wholly
or in part; or
(b) specify
a later time for payment than is specified in the Call Notice, by a further notice in writing to the Shareholder in respect of whose
Shares the call is made.
| 20.5 | Liability to pay a call shall not be extinguished
or transferred by transferring the Shares in respect of which it is required to be paid.
Joint holders of a Share shall be jointly and severally liable to pay all calls in respect
of that Share. |
| 20.6 | Subject to the terms on which Shares are
allotted, the Directors may, when issuing Shares, provide that Call Notices sent to the holders
of those Shares may require them to: |
(a) pay calls which
are not the same; or
(b) pay calls at
different times.
| 20.7 | A Call Notice need not be issued in respect
of sums which are specified, in the terms on which a Share is issued, as being payable to
the Company in respect of that Share (whether in respect of nominal value or premium): |
(a) on allotment;
(b) on the occurrence
of a particular event; or
(c) on a date fixed
by or in accordance with the terms of issue.
| 20.8 | If the due date for payment of such a sum
as referred to in Article 20.7 has passed and it has not been paid, the holder of the Share
concerned shall be treated in all respects as having failed to comply with a Call Notice
in respect of that sum, and shall be liable to the same consequences as regards the payment
of interest and forfeiture. |
| 20.9 | If a person is liable to pay a call and fails
to do so by the Call Payment Date (as defined below): |
(a) the Directors
may issue a notice of intended forfeiture to that person; and
(b) until
the call is paid, that person shall be required to pay the Company interest on the call from the Call Payment Date at the Relevant Rate
(as defined below).
| 20.10 | For the purposes of Article
20.9: |
(a) the
"Call Payment Date" shall be the time when the call notice states that a call is payable, unless the Directors give
a notice specifying a later date, in which case the "Call Payment Date" is that later date;
(b) the
"Relevant Rate" shall be:
| (1) | the rate fixed by the terms on which
the Share in respect of which the call is due was allotted; |
| (2) | such other rate as was fixed in the
Call Notice which required payment of the call, or has otherwise been determined by the Directors;
or |
| (3) | if no rate is fixed in either of these
ways, five per cent. a year, |
provided that the Relevant Rate
shall not exceed by more than five percentage points the base lending rate most recently set by the Monetary Policy Committee of the
Bank of England in connection with its responsibilities under Part 2 of the Bank of England Act 1998(a).
| 20.11 | The Directors may waive
any obligation to pay interest on a call wholly or in part. |
| 20.12 | The Directors may accept
full payment of any unpaid sum in respect of a Share despite payment not being called under
a Call Notice. |
| 21.1 | A notice of intended forfeiture: |
(a) may
be sent in respect of any Share for which there is an unpaid sum in respect of which a call has not been paid as required by a Call Notice;
(b) shall
be sent to the holder of that Share or to a person entitled to it by reason of the holder's death, bankruptcy or otherwise;
(c) shall
require payment of the call and any accrued interest and all expenses that may have been incurred by the Company by reason of such non-payment
by a date which is not fewer than 14 days after the date of the notice;
(d) shall
state how the payment is to be made; and
(e) shall
state that if the notice is not complied with, the Shares in respect of which the call is payable will be liable to be forfeited.
| 21.2 | If a notice of intended
forfeiture is not complied with before the date by which payment of the call is required
in the notice of intended forfeiture, then the Directors may decide that any Share in
respect of which it was given is forfeited, and the forfeiture is to include all dividends
or other moneys payable in respect of the forfeited Shares and not paid before the forfeiture. |
| 21.3 | Subject to these Articles,
the forfeiture of a Share extinguishes: |
(a) all
interests in that Share, and all claims and demands against the Company in respect of it; and
(b) all
other rights and liabilities incidental to the Share as between the person whose Share it was prior to the forfeiture and
the Company.
| 21.4 | Any Share which is forfeited
in accordance with these Articles: |
(a) shall
be deemed to have been forfeited when the Directors decide that it is forfeited;
(b) shall
be deemed to be the property of the Company; and
(c) may be
sold, re-allotted or otherwise disposed of as the Directors think fit.
| 21.5 | If a person's Shares have
been forfeited then: |
(a) the Company
shall send that person notice that forfeiture has occurred and record it in the register of members;
(b) that person
shall cease to be a Shareholder in respect of those Shares;
(c) that person
shall surrender the certificate for the Shares forfeited to the Company for cancellation;
(d) that person
shall remain liable to the Company for all sums payable by that person under the Articles at the date of forfeiture in respect of those
Shares, including any interest (whether accrued before or after the date of forfeiture); and
(e) the Directors
shall be entitled to waive payment of such sums wholly or in part or enforce payment without any allowance for the value of the Shares
at the time of forfeiture or for any consideration received on their disposal.
| 21.6 | At any time before the Company disposes
of a forfeited Share, the Directors shall be entitled to decide to cancel the forfeiture
on payment of all calls and interest and expenses due in respect of it and on such other
terms as they think fit. |
| 21.7 | If a forfeited Share is to be disposed
of by being transferred, the Company shall be entitled to receive the consideration for the
transfer and the Directors shall be entitled to authorise any person to execute the instrument
of transfer. |
| 21.8 | A statutory declaration by a Director or
the company secretary that the declarant is a Director or the company secretary and that
a Share has been forfeited on a specified date: |
(a) shall
be conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the Share; and
(b) subject
to compliance with any other formalities of transfer required by the articles or by law, constitutes a good title to the Share.
| 21.9 | A person to whom a forfeited Share is transferred
shall not be bound to see to the application of the consideration (if any) nor shall that
person's title to the Share be affected by any irregularity in or invalidity of the process
leading to the forfeiture or transfer of the Share. |
| 21.10 | If the Company sells a
forfeited Share, the person who held it prior to its forfeiture shall be entitled to receive
the proceeds of such sale from the Company, net of any commission, and excluding any sum
which: |
(a) was, or
would have become, payable; and
(b) had not,
when that Share was forfeited, been paid by that person in respect of that Share,
but no interest shall be payable to such a person in
respect of such proceeds and the Company shall not be required to account for any money earned on such proceeds.
| 22.1 | A Shareholder shall be
entitled to surrender any Share: |
| (a) | in respect of which the Directors issue a notice of intended forfeiture; |
| (b) | which the Directors forfeit; or |
| (c) | which has been forfeited. |
The Directors shall be entitled to accept the surrender
of any such Share.
22.2 The effect of surrender
on a Share shall be the same as the effect of forfeiture on that Share.
| 22.3 | The Company shall be entitled to deal with
a Share which has been surrendered in the same way as a Share which has been forfeited. |
| 23.1 | In the event that it is determined by the
Future Fund (in its absolute discretion) that it would be prejudicial to the reputation of
the Future Fund and/or the UK Government to continue holding any shares in the capital of
the Company, the Future Fund shall have the option to require the Company to purchase all
of the shares in the capital of the Company held by the Future Fund for an aggregate price
of £1.00 at any time (the "Put Option"), provided that: |
| (a) | the Put Option shall be exercisable
by irrevocable notice in writing from the Future Fund to the Company (the "Put Option
Notice"); |
| (b) | the terms of the completion of the Put
Option have been authorised by a resolution of the Company; |
| (c) | completion of the Put Option shall take
place as soon as reasonably practicable and in any event no later than 20 Business Days following
the Company's receipt of the Put Option Notice; and |
| (d) | each of the shareholders of the Company
and the Company shall execute, and the Company shall procure so far as it lies within its
power to do so the execution of, all such documents and deeds and do all such acts and things
as may be reasonably required from time to time to implement the Put Option and transfer
the legal and beneficial ownership of the relevant shares being sold to the Company under
this paragraph, including waiving any pre-emption rights relating to such transfer. |
Schedule C
–
Holdco Arrangement Resolution
BE IT RESOLVED, AS A SPECIAL RESOLUTION THAT:
| 1. | The arrangement
(the “Arrangement”) under Division 5 of Part 9 of the Business Corporations
Act (British Columbia) (the “BCBCA”) involving 1432952 B.C. Ltd. (“Holdco”),
pursuant to the arrangement agreement between ElectraMeccanica Vehicles Corp. (“EMV”),
Tevva Motors Limited (“Tevva”), Holdco and 1432957 B.C. Ltd., dated August
14, 2023, as amended or supplemented from time to time (the “Arrangement Agreement”)
and all other transactions contemplated by the Arrangement Agreement are hereby authorized,
approved and adopted. |
| 2. | The plan
of arrangement involving Holdco, as it has been or may be amended or supplemented in accordance
with the Arrangement Agreement or at the direction of the Supreme Court of British Columbia
(the “Court”) with the consent of EMV and Tevva, the full text of which
is set out in Schedule C to the Arrangement Agreement (the “Plan of Arrangement”),
is hereby authorized, approved and adopted. |
| 3. | The Arrangement
Agreement and all the transactions contemplated therein, the actions of the sole director
of Holdco in approving the Arrangement and any amendments thereto and the actions of the
sole director of Holdco in executing and delivering the Arrangement Agreement and any amendments
thereto are hereby confirmed, ratified, authorized and approved. |
| 4. | Notwithstanding
that this resolution has been passed (and the Arrangement adopted) or that the Arrangement
has been approved by the Supreme Court of British Columbia, the sole director of Holdco is
hereby authorized and empowered, without further notice to, or approval of, any securityholders
of Holdco: |
| (a) | to
amend the Arrangement Agreement or the Plan of Arrangement to the extent permitted by the
Arrangement Agreement or the Plan of Arrangement; or |
| (b) | subject
to the terms of the Arrangement Agreement, not to proceed with the Arrangement. |
| 5. | Any one
or more directors or officers of Holdco is hereby authorized, for and on behalf and in the
name of Holdco, to execute and deliver, whether under corporate seal of Holdco or not, all
such agreements, applications, forms, waivers, notices, certificates, confirmations and other
documents and instruments and to do or cause to be done all such other acts and things as
in the opinion of such director or officer may be necessary, desirable or useful for the
purpose of giving effect to these resolutions, the Arrangement Agreement and the completion
of the Plan of Arrangement in accordance with the terms of the Arrangement Agreement, including: |
| (a) | all
actions required to be taken by or on behalf of Holdco, and all necessary filings and obtaining
the necessary approvals, consents and acceptances of appropriate regulatory authorities;
and |
| (b) | the
signing of the certificates, consents and other documents or declarations required under
the Arrangement Agreement or otherwise to be entered into by Holdco, such determination to
be conclusively evidenced by the execution and delivery of such document, agreement or instrument
or the doing of any such act or thing. |
Schedule D
–
Parentco Arrangement Resolution
BE IT RESOLVED, AS A SPECIAL RESOLUTION THAT:
| 1. | The arrangement
(the “Arrangement”) under Division 5 of Part 9 of the Business Corporations
Act (British Columbia) (the “BCBCA”) involving 1432957 B.C. Ltd. (“Parentco”),
pursuant to the arrangement agreement between ElectraMeccanica Vehicles Corp. (“EMV”),
Tevva Motors Limited (“Tevva”), 1432952 B.C. Ltd. and Parentco, dated
August 14, 2023, as amended or supplemented from time to time (the “Arrangement
Agreement”) and all other transactions contemplated by the Arrangement Agreement
are hereby authorized, approved and adopted. |
| 2. | The plan
of arrangement involving Parentco, as it has been or may be amended or supplemented in accordance
with the Arrangement Agreement or at the direction of the Supreme Court of British Columbia
(the “Court”) with the consent of EMV and Tevva, the full text of which
is set out in Schedule C to the Arrangement Agreement (the “Plan of Arrangement”),
is hereby authorized, approved and adopted. |
| 3. | The Arrangement
Agreement and all the transactions contemplated therein, the actions of the sole director
of Holdco in approving the Arrangement and any amendments thereto and the actions of the
sole director of Holdco in executing and delivering the Arrangement Agreement and any amendments
thereto are hereby confirmed, ratified, authorized and approved. |
| 4. | Notwithstanding
that this resolution has been passed (and the Arrangement adopted) or that the Arrangement
has been approved by the Court, the sole director of Parentco is hereby authorized and empowered,
without further notice to, or approval of, any securityholders of Parentco: |
| (a) | to
amend the Arrangement Agreement or the Plan of Arrangement to the extent permitted by the
Arrangement Agreement or the Plan of Arrangement; or |
| (b) | subject
to the terms of the Arrangement Agreement, not to proceed with the Arrangement. |
| 5. | Any one
or more directors or officers of Parentco is hereby authorized, for and on behalf and in
the name of Parentco, to execute and deliver, whether under corporate seal of Parentco or
not, all such agreements, applications, forms, waivers, notices, certificates, confirmations
and other documents and instruments and to do or cause to be done all such other acts and
things as in the opinion of such director or officer may be necessary, desirable or useful
for the purpose of giving effect to these resolutions, the Arrangement Agreement and the
completion of the Plan of Arrangement in accordance with the terms of the Arrangement Agreement,
including: |
| (a) | all
actions required to be taken by or on behalf of Parentco, and all necessary filings and obtaining
the necessary approvals, consents and acceptances of appropriate regulatory authorities;
and |
| (b) | the
signing of the certificates, consents and other documents or declarations required under
the Arrangement Agreement or otherwise to be entered into by Parentco, such determination
to be conclusively evidenced by the execution and delivery of such document, agreement or
instrument or the doing of any such act or thing. |
Schedule E
–
Plan of Arrangement
[see attached]
Schedule
E
Plan of Arrangement
PLAN OF ARRANGEMENT UNDER THE PROVISIONS
OF DIVISION 5 OF PART 9 OF THE BUSINESS CORPORATIONS ACT (BRITISH COLUMBIA)
ARTICLE 1
INTERPRETATION
In this Plan of Arrangement,
unless there is something in the subject matter or context inconsistent therewith, the following terms shall have the respective meanings
set out below and grammatical variations of such terms shall have corresponding meanings:
| (a) | “Arrangement”
means an arrangement under Division 5 of Part 9 of the BCBCA on the terms and subject to
the conditions set out in this Plan of Arrangement, subject to any amendments or variations
to this Plan of Arrangement made in accordance with the terms of the Arrangement Agreement
and this Plan of Arrangement or made at the direction of the Court in the Final Order; |
| (b) | “Arrangement
Agreement” means the arrangement agreement dated August 14, 2023 among EMV, Tevva,
Holdco and Parentco, as it may be amended from time-to-time; |
| (c) | “BCBCA”
means the Business Corporations Act (British Columbia); |
| (d) | “Business
Day” means any day of the year, other than a Saturday, Sunday or any day on which
major banks are closed for business in London, England, Phoenix, Arizona or Vancouver, British
Columbia; |
| (e) | “Continuance”
means the continuance of the Resulting Issuer out from the jurisdiction of the BCBCA and
the concurrent domestication of the Resulting Issuer in the State of Delaware pursuant to
the provisions of Section 388 of the DGCL and, to the extent applicable, the provisions of
Section 368(a) of the US Tax Code and the Treasury Regulations promulgated thereunder; |
| (f) | “Court”
means the Supreme Court of British Columbia or other court of competent jurisdiction, as
applicable; |
| (g) | “Depositary”
means Computershare Trust Company of Canada or any other depositary or trust company, bank
or financial institution agreed to between Tevva and EMV for the purpose of, among other
things, exchanging certificates representing EMV Shares in connection with the Arrangement; |
| (h) | “DGCL”
means the General Corporation Law of the State of Delaware; |
| (i) | “Dissent
Procedures” has the meaning set out in Section 4.01; |
| (j) | “Dissent
Rights” has the meaning set out in Section 4.01; |
| (k) | “Dissenting
Shareholder” means a holder of EMV Shares who dissents in respect of the Arrangement
in strict compliance with the Dissent Procedures; |
| (l) | “Effective
Date” means (i) the date designated by EMV and Tevva by notice in writing as the
effective date of the Arrangement, after all of the conditions to the completion of the Arrangement
as set out in the Arrangement Agreement and the Final Order have been satisfied (to the extent
capable of being satisfied prior to the Effective Time) or waived or (ii) in the absence
of such agreement, the date that is three Business Days following the satisfaction or, where
not prohibited, the waiver by the applicable party in whose favour the condition is, of the
conditions set out in the Arrangement Agreement (excluding conditions that, by their terms,
cannot be satisfied until the Effective Date, but subject to the satisfaction or, where not
prohibited, the waiver by the applicable party in whose favour the condition is, of those
conditions as of the Effective Date); |
| (m) | “Effective
Time” means 12:01 a.m. (Vancouver time) on the Effective Date or such other time
as EMV and Tevva agree in writing before the Effective Date; |
| (n) | “EMV”
means ElectraMeccanica Vehicles Corp., a corporation existing under the laws of the Province
of British Columbia; |
| (o) | “EMV
Arrangement Resolution” means the special resolution of the EMV Shareholders approving
the Arrangement and the transactions contemplated by the Arrangement Agreement to be considered
at the EMV Meeting, substantially in the form of Schedule A to the Arrangement Agreement; |
| (p) | “EMV
Consideration” means the number of Resulting Issuer Shares to be issued to each
EMV Shareholder under this Plan of Arrangement in exchange for the transfer to the Resulting
Issuer of one EMV Share, being the number that is obtained by multiplying (i) the product
of (A) 0.235 and (B) the Resulting Issuer I/O Share Amount by (ii) the quotient of (A) one
and (B) the EMV I/O Share Amount; |
| (q) | “EMV
DSUs” means the outstanding deferred share units issued pursuant to the EMV Incentive
Plan; |
| (r) | “EMV
In-the-Money Amount” means the numerical value that is equal to (i) the price of
an EMV Share on Nasdaq at the close of trading on Nasdaq on the last Nasdaq trading day prior
to the Effective Time, minus (ii) the exercise price for an EMV In-the-Money Option, minus
(iii) the amount of any Taxes required to be withheld pursuant to applicable law in respect
of the transfer, disposal, and cancellation of such EMV In-the-Money Option; |
| (s) | “EMV
In-the-Money Option” means an EMV Option in respect of which the EMV In-the-Money
Amount is a positive amount; |
| (t) | “EMV
Incentive Plan” means the stock incentive plan of EMV effective May 29, 2020; |
| (u) | “EMV
I/O Share Amount” means the number of EMV Shares issued and outstanding or issuable
(including those deemed by the Arrangement to be issued and outstanding) on a fully-diluted
basis immediately following the completion of the matters provided for in Section 3.02(b); |
| (v) | “EMV
Meeting” means the meeting of EMV Shareholders, which may be, at the discretion
of EMV, a special meeting or an annual general and special meeting, including any adjournment
or postponement thereof, to be called and held in accordance with the Interim Order to consider,
among other things, the EMV Arrangement Resolution; |
| (w) | “EMV
Options” means the outstanding stock options to purchase EMV Shares issued pursuant
to the EMV Incentive Plan; |
| (x) | “EMV
Out-of-the-Money Option” means each EMV Option other than an EMV In-the-Money Option; |
| (y) | “EMV
PSUs” means the outstanding performance share units issued pursuant to the EMV
Incentive Plan; |
| (z) | “EMV
RSUs” means the outstanding restricted share units issued pursuant to the EMV Incentive
Plan; |
| (aa) | “EMV
Securityholders” means, collectively, the EMV Shareholders, the holders of EMV
DSUs, the holders of EMV PSUs, the holder of EMV RSUs and the holders of EMV Options; |
| (bb) | “EMV
Shareholders” means the holders of the EMV Shares; |
| (cc) | “EMV
Shares” means the common shares in the capital of EMV; |
| (dd) | “Final
Order” means the final order of the Court approving the Arrangement, after being
informed of the intention to rely upon the exemption from registration pursuant to Section
3(a)(10) of the U.S. Securities Act with respect to the Resulting Issuer Shares to be issued
pursuant to the Arrangement, in a form acceptable to EMV and Tevva, each acting reasonably,
as such order may be amended by the Court (with the consent of both EMV and Tevva, each acting
reasonably) at any time prior to the Effective Date or, if appealed, then, unless such appeal
is withdrawn or denied, as affirmed or as amended (provided that any such amendment is acceptable
to both EMV and Tevva, each acting reasonably) on appeal; |
| (ee) | “Governmental
Entity” means (i) any international, multinational, national, federal, provincial,
state, regional, municipal, local or other government, governmental or public department,
central bank, court, tribunal, arbitral body, commission, board, bureau, ministry, agency
or instrumentality, domestic or foreign, including without limitation the UK Secretary of
State in the Cabinet Office, (ii) any subdivision or authority of any of the above, including
without limitation the UK Investment Security Unit (iii) any quasi-governmental or private
body or person exercising any regulatory, expropriation or taxing authority under or for
the account of any of the foregoing or (iv) any stock exchange; |
| (ff) | “Holdco”
means 1432952 B.C. Ltd., a corporation formed under the laws of the Province of British Columbia
for the purposes of consummating the transactions contemplated by the Arrangement Agreement
and this Plan of Arrangement; |
| (gg) | “Holdco
Shares” means common shares in the capital of Holdco; |
| (hh) | “Holdco
Shareholders” means the owners of Holdco Shares that have conveyed their respective
Tevva Shares to Holdco as contemplated by Section 3.01; |
| (ii) | “Initial
Holdco Shareholder” means the shareholder of Holdco immediately prior to the actions
contemplated by Section 3.01; |
| (jj) | “Interim
Order” means the interim order of the Court pursuant to Section 291 of the BCBCA,
after being informed of the intention to rely upon the exemption from registration pursuant
to Section 3(a)(10) of the U.S. Securities Act with respect to the Resulting Issuer Shares
to be issued pursuant to the Arrangement, in a form acceptable to EMV and Tevva, each acting
reasonably, providing for, among other things, the calling and holding of the EMV Meeting,
as such order may be amended by the Court with the consent of EMV and Tevva, each acting
reasonably; |
| (kk) | “Letter
of Transmittal” means the Letter of Transmittal delivered by EMV to the EMV Shareholders; |
| (ll) | “Nasdaq”
means The Nasdaq Stock Market LLC; |
| (mm) | “Parentco”
means 1432957 B.C. Ltd., a corporation formed under the laws of the Province of British Columbia
for the purposes of consummating the transactions contemplated by the Arrangement Agreement
and this Plan of Arrangement and, immediately prior to the Effective Time, a wholly-owned
subsidiary of Holdco; |
| (nn) | “Parentco
Shares” means common shares in the capital of Parentco; |
| (oo) | “person”
includes any individual, partnership, association, body corporate, organization, trust, estate,
trustee, executor, administrator, legal representative, government (including Governmental
Entity), syndicate or other entity, whether or not having legal status; |
| (pp) | “Plan
of Arrangement” means this plan of arrangement, subject to any amendments or variations
hereto made in accordance with Article 6 hereto or the Arrangement Agreement or made at the
direction of the Court in the Final Order with the prior written consent of EMV and Tevva,
each acting reasonably; |
| (qq) | “Regulatory
Approval” means any consent, waiver, permit, exemption, review, order, decision
or approval of, or any registration or filing with, any Governmental Entity, or the expiry,
waiver or termination of any waiting period imposed by law or a Governmental Entity, in each
case in connection with the transactions contemplated within the Arrangement Agreement; |
| (rr) | “Resulting
Issuer” has the meaning set out in Section 3.02(a); |
| (ss) | “Resulting
Issuer I/O Share Amount” means the amount which EMV and Tevva agree in writing
prior to the Effective Time to be the aggregate number of Resulting Issuer Shares to be issued
and outstanding immediately following the completion of the transactions contemplated under
Section 3.02; |
| (tt) | “Resulting
Issuer Shares” means common shares in the capital of the Resulting Issuer; |
| (uu) | “Tax
Act” means the Income Tax Act (Canada); |
| (vv) | “Tax
Returns” means any and all (i) returns, assessments, reports, declarations, elections,
claims for refunds, notices, forms, designations, information returns, statements and other
written information, whether in tangible, electronic or other form (including estimated tax
returns and reports, withholding tax returns and reports, and information returns and reports)
filed or required to be filed in respect of Taxes, (ii) schedules and attachments to any
of the items referred to in clause (i) of this definition, and (iii) any amendments to any
of the items referred to in clauses (i) or (ii) of this definition; |
| (ww) | “Taxes”
means all federal, state, provincial, territorial, county, municipal, local or foreign taxes,
duties, fees, excises, premiums, assessments, imposts, levies, fees, contributions, tariffs
and/or other charges, withholdings, liabilities or assessments of any kind whatsoever imposed,
assessed or collected by any Governmental Entity, whether computed on a separate, consolidated,
unitary, combined or other basis and whether or not the same is a primary liability, including
but not limited to (i) those levied on, or measured by, or described with respect to, income,
net income, gross income gross receipts, royalty, profits, gains, inventory, windfalls, capital,
capital gains, capital stock, production, recapture, transfer or conveyance, land transfer,
license, gift, occupation, wealth, alternative minimum, add-on minimums, environment or natural
resources, net worth, unclaimed property, indebtedness, surplus, sales, sales and use, goods
and services, harmonized sales, use, value-added, excise, special assessment, stamp, recording
or documentation, withholding (including backup withholding or otherwise), business, transactions,
privileges, franchising, premium, real or personal property, intangible property, ad valorem,
windfall profits, countervail, health, rent or lease payments, employer health, payroll,
workers’ compensation, employment or unemployment, severance, social services, social
security, education, utility, surtaxes, customs, import or export, and including all license
and registration fees and all employment insurance, health insurance and government pension
plan premiums or contributions and including any estimations of any of the foregoing; (ii)
all interest, penalties, fines, additions to tax or other additional amounts imposed by any
Governmental Entity on or in respect of amounts of the type described in clause (i) above
or this clause (ii); (iii) any liability for the payment of any amounts of the type described
in clauses (i) or (ii) as a result of being a member of an affiliated, consolidated, combined
or unitary group for any period or otherwise arises due to or in connection with a relationship
for Tax purposes with any person; and (iv) any liability for the payment of any amounts of
the type described in clauses (i) or (ii) as a result of any express or implied obligation,
including but not limited to any obligation to pay for or to indemnify any other person,
and including as a result of being a transferee or successor in interest to any party; |
| (xx) | “Tevva”
means Tevva Motors Limited, a company registered in England and Wales with company number
08368694, whose registered office is at Tevva London Unit 1 London Distribution Park, Windrush
Road, Tilbury, Essex, England, RM18 7EW; |
| (yy) | “Tevva
A Ordinary Shares” means the A Ordinary Shares of £0.0000015385 each in the
capital of Tevva; |
| (zz) | “Tevva
Arrangement Resolution” means the ordinary resolution of the Tevva Ordinary Shareholders,
in their capacity as Tevva Ordinary Shareholders and in their capacity as, at the Effective
Time, Holdco Shareholders, substantially in the form of Part A of Schedule B to the Arrangement
Agreement, which shall be adopted only if approved by not less than 66 2/3% of the votes
cast in a poll vote; |
| (aaa) | “Tevva
Consideration” means the number of Resulting Issuer Shares to be issued to each
Holdco Shareholder in connection with the formation of the Resulting Issuer pursuant to Section
3.02(a) of this Plan of Arrangement, being the number that is obtained by multiplying (i)
the product of (A) 0.765 and (B) the Resulting Issuer I/O Share Amount by (ii) the quotient
of (A) one and (B) the Tevva I/O Share Amount; |
| (bbb) | “Tevva
I/O Share Amount” means the number of Tevva Shares issued and outstanding on a
fully-diluted basis immediately prior to the actions contemplated by Section 3.01; |
| (ccc) | “Tevva
Meeting” means the meeting of Tevva Shareholders, including any adjournment or
postponement thereof, to be called and held in accordance with the Interim Order to consider,
among other things, the Tevva Arrangement Resolution; |
| (ddd) | “Tevva
Ordinary Shareholders” means the holders of Tevva Ordinary Shares; |
| (eee) | “Tevva
Ordinary Shares” means the ordinary shares of £0.00001538 each in the capital
of Tevva; |
| (fff) | “Tevva
Shareholders” means the holders of Tevva Shares; |
| (ggg) | “Tevva
Shares” means the Tevva Ordinary Shares and the Tevva A Ordinary Shares; |
| (hhh) | “Transacting
Parties” means EMV and Tevva, and “Transacting Party” means
any one of them; |
| (iii) | “UK
Investment Security Unit” means the Investment Security Unit in the Cabinet Office,
which is responsible for the operation of the UK NSIA; |
| (jjj) | “UK
NSIA” means the National Security and Investment Act 2021 (United Kingdom); |
| (kkk) | “UK
Secretary of State in the Cabinet Office” means the Secretary of State in the Cabinet
Office acting as decision maker for the purposes of the UK NSIA; |
| (lll) | “U.S.
Securities Act” means the United States Securities Act of 1933; and; |
| (mmm) | “US
Tax Code” means the United States Internal Revenue Code of 1986, as amended. |
| 1.02 | Interpretation
Not Affected by Headings, etc. |
The division of this Plan
of Arrangement into sections and other portions and the insertion of headings are for convenience of reference only and shall not affect
the construction or interpretation hereof. Unless otherwise indicated, all references in this Plan of Arrangement to a “Section”
followed by a number and/or a letter refer to the specified section of this Plan of Arrangement. Unless otherwise indicated, the terms
“this Plan of Arrangement”, “hereof”, “herein”, “hereunder” and “hereby”
and similar expressions refer to this Plan of Arrangement as amended or supplemented from time to time pursuant to the applicable provisions
hereof, and not to any particular section or other portion hereof.
Unless the context otherwise
requires, words importing the singular shall include the plural and vice versa and words importing any gender shall include all genders.
If the date on which any
action is required to be taken hereunder is not a Business Day, such action shall be required to be taken on the next succeeding day
which is a Business Day.
In this Plan of Arrangement
unless otherwise indicated:
| (a) | the
words “include”, “including” or “in particular”, when
following any general term or statement, shall not be construed as limiting the general term
or statement to the specific items or matters set forth or to similar items or matters, but
rather as permitting the general term or statement to refer to all other items or matters
that could reasonably fall within the broadest possible scope of the general term or statement; |
| (b) | a
reference to a statute means that statute, as amended and in effect as of the date of this
Plan of Arrangement, and includes each and every regulation and rule made thereunder and
in effect as of the date hereof; |
| (c) | where
a word, term or phrase is defined, its derivatives or other grammatical forms have a corresponding
meaning; and |
| (d) | time
is of the essence. |
ARTICLE 2
ARRANGEMENT AGREEMENT AND BINDING EFFECT
| 2.01 | Arrangement
Agreement. |
This Plan of Arrangement
is made pursuant to the Arrangement Agreement.
This Plan of Arrangement
will become effective and be binding at and after the Effective Time on EMV, EMV Securityholders, Tevva, Holdco, Holdco Shareholders,
Parentco, the registrar and transfer agent of EMV, the Depositary and all other persons at and after the Effective Time, without any
further act or formality required on the part of any person.
ARTICLE 3
ARRANGEMENT
| 3.01 | Holdco
Acquisition of Tevva Shares. |
Prior to the Effective Time,
and as a condition precedent to the Arrangement becoming effective:
| (a) | Holdco
shall have purchased, and all Tevva Shareholders shall have sold to Holdco, all issued Tevva
Shares; and |
| (b) | contemporaneously
with the transaction described under Section 3.01(a), Holdco shall have repurchased all of
the Holdco Shares held by the Initial Holdco Shareholder for the issue price of such Holdco
Shares; |
such that immediately prior
to the Effective Time, (x) Tevva Shareholders own all Holdco Shares, (y) Holdco owns all of the Tevva Shares, and (z) the Initial Holdco
Shareholder does not own any shares in the capital of Holdco.
Subject to the satisfaction
or waiver of the conditions set out within Article 7 of the Arrangement Agreement in accordance with the relevant provisions of the Arrangement
Agreement, the following transactions shall occur and shall be deemed to occur and be completed in the following order on the Effective
Date without any further act or formality, in each case effective as at five minute intervals starting at the Effective Time (unless
stated otherwise), provided that the purchase and sale provided for in Section 3.01 shall have occurred prior to the Effective Time:
| (a) | Holdco
shall amalgamate with Parentco to form one corporation, with the same effect as if Holdco
and Parentco had amalgamated under Section 269 of the BCBCA, except that the separate legal
existence of Parentco shall not cease and Parentco will survive the amalgamation (Parentco,
as such surviving entity, the “Resulting Issuer”), in accordance with
the following, all of which shall occur and become effective simultaneously at the time of
the amalgamation: |
| (i) | the
separate legal existence of Holdco shall cease without Parentco being liquidated or wound
up and Holdco and Parentco shall continue as one company; |
| (ii) | the
notice of articles and articles of the Resulting Issuer shall be substantially in the form
of the notice of articles and articles of Parentco, subject to the other terms of this Plan
of Arrangement; |
| (iii) | (A)
each Holdco Share issued and outstanding immediately prior to the amalgamation shall automatically
be exchanged for the Tevva Consideration; (B) the authorized capital of the Resulting Issuer
shall be the same as the authorized capital of Parentco immediately prior to the amalgamation;
and (C) in connection with the foregoing, the capital of the Resulting Issuer in respect
of the Resulting Issuer Shares shall be equal to the capital of Holdco in respect of the
Holdco Shares immediately before the Effective Time; |
| (iv) | the
property, rights and interests of Holdco and Parentco shall be the property, rights and interests
of the Resulting Issuer; |
| (v) | the
Resulting Issuer shall be liable for the liabilities and obligations of Holdco and Parentco; |
| (vi) | any
existing cause of action, claim or liability to prosecution of Holdco or Parentco shall be
unaffected and any legal proceeding being prosecuted or pending by or against either Holdco
or Parentco may be prosecuted, or by its prosecution may be continued, as the case may be,
by or against the Resulting Issuer; |
| (vii) | a
conviction against, or ruling, order or judgment in favour of or against either Holdco or
Parentco may be enforced by or against the Resulting Issuer; |
| (viii) | the
name of the Resulting Issuer shall be “Tevva Motors, Inc.”; |
| (ix) | the
first directors of the Resulting Issuer following the amalgamation shall be: |
|
Name |
|
(A) |
Susan Docherty |
|
(B) |
Dietmar Ostermann |
|
(C) |
Michael Richardson |
|
(D) |
Luisa Ingargiola |
|
(E) |
David Roberts |
|
(F) |
Laura Brown |
|
(G) |
Ian Harnett |
|
(H) |
David Morris |
|
(I) |
Ralph Speth |
| (x) | the
first officers of the Resulting Issuer following the amalgamation shall be Susan Docherty,
Chief Executive Officer, and the other officers approved in writing by the first directors
at the Effective Time; |
| (xi) | the
first auditor of the Resulting Issuer shall be KPMG LLP, which shall hold office until the
first annual meeting of the Resulting Issuer following the amalgamation or until its successor
is elected or appointed, |
and for the purposes
of Section 270 of the BCBCA, the provisions of this section shall constitute the amalgamation agreement between Holdco and Parentco;
and for United States federal income tax purposes, the provisions of Section 3.01 and this Section 3.02(a) are intended to be viewed
together as a contribution by the Tevva Shareholders of the Tevva Shares to Parentco in exchange for Parentco Shares in a transaction
governed by US Tax Code Section 351 and the Treasury Regulations promulgated thereunder.
| (b) | notwithstanding
the terms of the EMV Incentive Plan, at the Effective Time: |
| (i) | (A)
each EMV DSU that is outstanding immediately prior to the Effective Time, whether vested
or unvested, shall unconditionally and immediately vest and shall be settled by EMV in exchange
for one EMV Share, less applicable withholdings; (B) each holder of an EMV DSU shall be entered
in the register of EMV Shareholders maintained by or on behalf of EMV as the holder of the
EMV Share issued therefor and such EMV Share shall be deemed to be issued to such holder
of the EMV DSU as a fully paid share in the capital of EMV, provided that no certificate
or book-entry statement shall be issued with respect to such EMV Share; (C) each EMV DSU
shall be immediately cancelled and the holder of such EMV DSU shall cease to be the holder
thereof and to have any right as a holder of an EMV DSU; and (D) the name of each holder
of each EMV DSU shall be removed from the register of EMV DSUs maintained by or on behalf
of EMV and all agreements relating to EMV DSUs shall be terminated and shall be of no further
force and effect; |
| (ii) | (A)
each EMV PSU that is outstanding immediately prior to the Effective Time, whether vested
or unvested, shall unconditionally and immediately vest and shall be settled by EMV in exchange
for one EMV Share, less applicable withholdings; (B) each holder of an EMV PSU shall be entered
in the register of EMV Shareholders maintained by or on behalf of EMV as the holder of the
EMV Share issued therefor and such EMV Share shall be deemed to be issued to such holder
of the EMV PSU as a fully paid share in the capital of EMV, provided that no certificate
or book-entry statement shall be issued with respect to such EMV Share; (C) each EMV PSU
shall be immediately cancelled and the holder of such EMV PSU shall cease to be the holder
thereof and to have any right as a holder of an EMV PSU; and (D) the name of each holder
of each EMV PSU shall be removed from the register of EMV PSUs maintained by or on behalf
of EMV and all agreements relating to EMV PSUs shall be terminated and shall be of no further
force and effect; |
| (iii) | (A)
each EMV RSU that is outstanding immediately prior to the Effective Time, whether vested
or unvested, shall unconditionally and immediately vest and shall be settled by EMV in exchange
for one EMV Share, less applicable withholdings; (B) each holder of an EMV RSU shall be entered
in the register of EMV Shareholders maintained by or on behalf of EMV as the holder of the
EMV Share issued therefor and such EMV Share shall be deemed to be issued to such holder
of the EMV RSU as a fully paid share in the capital of EMV, provided that no certificate
or book-entry statement shall be issued with respect to such EMV Share; (C) each EMV RSU
shall be immediately cancelled and the holder of such EMV RSU shall cease to be the holder
thereof and to have any right as a holder of an EMV RSU; and (D) the name of each holder
of each EMV RSU shall be removed from the register of EMV RSUs maintained by or on behalf
of EMV and all agreements relating to EMV RSUs shall be terminated and shall be of no further
force and effect; |
| (iv) | (A)
each EMV In-the-Money Option that is outstanding immediately prior to the Effective Time,
whether vested or unvested, shall unconditionally and immediately vest and become exercisable,
and each holder of an EMV In-the-Money Option shall be deemed to have elected to assign and
transfer each such EMV In-the-Money Option, without any further action by or on behalf of
the holder of such EMV Option, to EMV in exchange for such number of EMV Shares as is equal
to the quotient obtained by dividing (1) the sum of the EMV In-the-Money Amount for all EMV
In-the-Money Options held by such holder by (2) the price of an EMV Share on Nasdaq at the
close of trading on Nasdaq on the last Nasdaq trading day prior to the Effective Time, which
quotient shall be rounded down to the nearest whole number; (B) each holder of any EMV In-the-Money
Option that receives one or more EMV Shares pursuant to this Section 3.02(b)(iv) shall be
entered in the register of EMV Shareholders maintained by or on behalf of EMV as the holder
of any such EMV Share and every such EMV Share shall be deemed to be issued to such holder
of EMV In-the-Money Options as a fully paid share in the capital of EMV, provided that no
certificate or book-entry statement shall be issued with respect to such EMV Share; (C) each
EMV In-the-Money Option shall immediately be cancelled and any holder of such EMV In-the-Money
Option shall cease to be the holder thereof and to have any right as a holder of an EMV In-the-Money
Option; and (D) the name of each holder of any EMV In-the-Money Option shall be removed from
the register of EMV Options maintained by or on behalf of EMV and all agreements relating
to EMV In-the-Money Options shall be terminated and shall be of no further force and effect;
and |
| (v) | (A)
each EMV Out-of-the-Money Option issued and outstanding immediately prior to the Effective
Time shall, without any further action by or on behalf of any holder of such EMV Out-of-the-Money
Option, be cancelled without any payment therefor; (B) each EMV Out-of-the-Money Option shall
immediately be cancelled and any holder of such EMV Out-of-the-Money Option shall cease to
be the holder thereof and to have any right as a holder of an EMV Out-of-the-Money Option;
and (C) the name of each holder of each EMV Out-of-the-Money Option shall be removed from
the register of EMV Options maintained by or on behalf of EMV and all agreements relating
to EMV Out-of-the-Money Options shall be terminated and shall be of no further force and
effect; |
| (c) | each
EMV Share held by a Dissenting Shareholder in respect of which the EMV Shareholder has validly
exercised his, her or its Dissent Rights shall be transferred and assigned by such Dissenting
Shareholder to the Resulting Issuer (free and clear of all liens, charges and encumbrances
of any nature whatsoever) in accordance with, and for the consideration contemplated by,
Section 4.01 and (i) the registered holder thereof shall cease to be the registered holder
of such EMV Share and the name of such registered holder shall be removed from the register
of EMV Shareholders as of the Effective Time; and (ii) the registered holder thereof shall
be deemed to have executed and delivered all consents, releases, assignments and waivers,
statutory or otherwise, required to transfer and assign such EMV Share; |
| (d) | each
EMV Share (including EMV Shares issued pursuant to Sections 3.02(b)(i), 3.02(b)(ii), 3.02(b)(iii)
and 3.02(b)(iv), but excluding any EMV Share transferred from a Dissenting Shareholder pursuant
to Section 3.02(c)) shall be transferred by the EMV Shareholder, free and clear of all liens,
to the Resulting Issuer and in consideration for such transfer, such EMV Shareholder shall
be issued the EMV Consideration and: (i) such EMV Shareholder shall cease to be the holder
of the transferred EMV Share and to have any right as a holder thereof, other than the right
to be issued the EMV Consideration by the Resulting Issuer in accordance with this Plan of
Arrangement; (ii) such EMV Shareholder’s name shall be removed from the register of
EMV Shareholders maintained by or on behalf of EMV; (iii) the Resulting Issuer shall be the
transferee of such EMV Share, free and clear of all liens; (iv) the Resulting Issuer shall
be entered in the register of EMV Shareholders maintained by or on behalf of the EMV as the
holder of such EMV Share; (v) the Resulting Issuer will add an amount equal to the “paid-up
capital” (as defined in the Tax Act) of the transferred EMV Shares to the capital of
the common shares of the Resulting Issuer; and (vi) for United States federal income tax
purposes, the provisions of this Section 3.02(d) are intended to be viewed together as a
contribution by the EMV Shareholders of the EMV Shares to Parentco in exchange for Parentco
Shares in a transaction governed by US Tax Code Section 351 and the Treasury Regulations
promulgated thereunder; and |
| (e) | at
least one day following the consummation of the transactions contemplated in Section 3.02(d),
(i) the Continuance shall be effective and the Resulting Issuer shall be domesticated in
the State of Delaware and shall continue as a corporation under the DGCL under the name “Tevva
Motors, Inc.”; (ii) to the extent applicable the Continuance and related transactions
contemplated in this Plan of Arrangement shall be treated as a “plan of reorganization”
as such term is contemplated in Section 368(a) of the US Tax Code and the Treasury Regulations
promulgated thereunder, including Treas. Reg. Sec. 1.368-2(g); and (iii) each of EMV, the
EMV Securityholders, Tevva, Holdco, the Holdco Shareholders, and Parentco shall reasonably
cooperate with the other(s) in causing the Continuance to be treated, to the fullest extent
permitted by law, as a reorganization pursuant to Section 368(a)(1)(F) of the US Tax Code
and the Treasury Regulations promulgated thereunder, and such cooperation shall include timely
filing all Tax Returns. |
| 3.03 | No
Fractional Shares. |
In no event shall any action
or step provided for in this Plan of Arrangement entitle any person to receive any fractional share amount. Where any action or step
provided for in this Plan of Arrangement would imply that a person should be issued a fractional share amount, such amount shall be rounded
down to the nearest whole number of shares.
| 3.04 | U.S.
Securities Laws. |
Notwithstanding any provision
herein to the contrary, EMV, Tevva, Holdco and Parentco agree that this Plan of Arrangement will be carried out with the intention, and
they will use their commercially reasonable efforts to ensure, that all Resulting Issuer Shares to be issued in connection with the Arrangement
shall be issued and exchanged in reliance on the exemption from the registration requirements of the U.S. Securities Act provided by
Section 3(a)(10) thereof.
ARTICLE 4
RIGHTS OF DISSENT
| (a) | Registered
holders of EMV Shares may exercise rights of dissent (“Dissent Rights”)
with respect to such shares pursuant to and in the manner set forth in Section 237 to 247
of the BCBCA and this Section 4.01 (the “Dissent Procedures”) in connection
with the Arrangement; provided that, notwithstanding subsection 242(a) of the BCBCA, the
written objection to the EMV Arrangement Resolution referred to in subsection 242(a) of the
BCBCA must be received by EMV not later than 5:00 p.m. (Vancouver time) on the day that is
two business days before the date of the EMV Meeting or any date to which the EMV Meeting
may be postponed or adjourned and provided further that Dissenting Shareholders who: |
| (i) | are
ultimately entitled to be paid fair value for their EMV Shares shall be deemed to have transferred
such EMV Shares to the Resulting Issuer as provided for in Section 3.02(c) without any further
act or formality and free and clear of all liens, claims and encumbrances, in consideration
for the payment by the Resulting Issuer of the fair value thereof, in cash; or |
| (ii) | are
ultimately not entitled, for any reason, to be paid fair value for their EMV Shares shall
be deemed to have participated in the Arrangement on the same basis as a non-dissenting holder
of EMV Shares and shall receive consideration for their EMV Shares as provided for in Section
3.02(d), |
but in no case shall EMV, the Resulting Issuer or any other
person be required to recognize such persons as holders of EMV Shares after the Effective Time, and the names of such persons shall be
removed from the registers of holders of EMV Shares at the Effective Time as provided for in Section 3.02.
| (b) | In
addition to any other restrictions set forth in the BCBCA and the Interim Order, none of
the following shall be entitled to Dissent Rights: |
| (i) | EMV
Shareholders who vote in favour of the EMV Arrangement Resolution; and |
| (ii) | any
holder of any EMV DSUs, EMV PSUs, EMV RSUs and EMV Options. |
ARTICLE 5
DELIVERY OF RESULTING ISSUER SHARES
| 5.01 | Delivery
of Resulting Issuer Shares. |
| (a) | Upon
return to the Depositary of a properly completed Letter of Transmittal by a registered former
EMV Shareholder together with any certificate, that immediately before the Effective Time
represented one or more outstanding EMV Shares that were exchanged for Resulting Issuer Shares
in accordance with Section 3.02(d) hereof and such additional documents and instruments as
the Depositary may reasonably require, the holder of such surrendered certificate shall be
entitled to receive in exchange therefor, and the Depositary shall deliver to such holder
following the Effective Time, certificates or book-entry statements representing the Resulting
Issuer Shares that such holder is entitled to receive in accordance with Section 3.02(d)
hereof. |
| (b) | After
the Effective Time and until surrendered for cancellation as contemplated by Section 3.02(d)
hereof, each certificate, if any, that immediately prior to the Effective Time represented
one or more EMV Shares shall be deemed at all times to represent only the right to receive
in exchange therefor the Resulting Issuer Shares that the holder of such certificate is entitled
to receive in accordance with Section 3.02(d) hereof. |
| 5.02 | Distributions
with Respect to Unsurrendered Certificates. |
No dividends or other distributions
declared or made after the Effective Time with respect to Resulting Issuer Shares with a record date after the Effective Time shall be
paid to the holder of any unsurrendered certificate that immediately prior to the Effective Time represented outstanding EMV Shares that
were exchanged pursuant to Section 3.01 unless and until the holder of record of such certificate has surrendered such certificate in
accordance with Section 5.01. Subject to applicable law, at the time of surrender of any such certificate (or in the case of clause (b)
below, at the appropriate payment date), there shall be paid to the holder of record of the certificates formerly representing whole
EMV Shares, without interest, (a) the amount of dividends or other distributions with a record date after the Effective Time theretofore
paid with respect to such whole Resulting Issuer Share and (b) on the appropriate payment date, the amount of dividends or other distributions
with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to
such whole Resulting Issuer Share.
In the event any certificate
which immediately prior to the Effective Time represented one or more outstanding EMV Shares that were exchanged pursuant to Section
3.02(d) has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such certificate to be
lost, stolen or destroyed, the Depositary shall issue in exchange for such lost, stolen or destroyed certificate, one or more certificates
representing one or more Resulting Issuer Shares (and any dividends or distributions with respect thereto) deliverable in accordance
with such holder’s Letter of Transmittal. When authorizing such payment in exchange for any lost, stolen or destroyed certificate,
the person to whom certificates or book-entry statements representing Resulting Issuer Shares are to be issued shall, as a condition
precedent to the issuance thereof, give a bond satisfactory to the Resulting Issuer and its transfer agent and the Depositary in such
sum as the Resulting Issuer may direct or otherwise indemnify the Resulting Issuer, its transfer agent and the Depositary in a manner
satisfactory to the Resulting Issuer, its transfer agent and the Depositary against any claim that may be made against the Resulting
Issuer, its transfer agent and/or the Depositary with respect to the certificate alleged to have been lost, stolen or destroyed.
| 5.04 | Extinction
of Rights. |
Any certificate or book-entry
statement that immediately prior to the Effective Time represented outstanding EMV Shares that were exchanged pursuant to Section 3.02(d)
and not deposited with all other instruments required by Section 5.01 on or prior to the sixth anniversary of the Effective Date shall
cease to represent a claim or interest of any kind or nature as a shareholder of the Resulting Issuer or as a former shareholder of EMV.
On such date, the Resulting Issuer Shares to which the former registered holder of the certificate referred to in the preceding sentence
was ultimately entitled shall be deemed to have been surrendered to the Resulting Issuer together with all entitlements to dividends,
distributions and interest thereon held for such former registered holder. None of the Resulting Issuer, Tevva, EMV or the Depositary
shall be liable to any person in respect of any Resulting Issuer Shares (or dividends, distributions and interest in respect thereof)
delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
The Resulting Issuer, EMV,
Tevva, Holdco, Parentco the Depositary and any other person shall be entitled to deduct, withhold and remit or pay from any Resulting
Issuer Shares or other consideration otherwise issuable or payable pursuant to this Plan of Arrangement to any holder or recipient of
Resulting Issuer Shares, or any dividend or consideration otherwise payable to any holder or recipient of Holdco Shares, EMV Shares,
Tevva Shares, or Parentco Shares such amounts as the Resulting Issuer, EMV, Tevva, Holdco, Parentco or the Depositary, respectively,
is required by law to deduct, withhold and remit or pay with respect to such issuance or payment, as the case may be, under the Tax Act,
the US Tax Code (and the Treasury Regulations promulgated thereunder), or any provision of provincial, state, local or foreign tax law,
in each case as amended. To the extent that amounts are so withheld and remitted or paid to the applicable Governmental Entity, such
withheld amounts shall be treated for all purposes hereof as having been paid to the payee or recipient in respect of which such deduction
and withholding was made, provided that such withheld amounts are actually remitted to the appropriate taxing authority. To the extent
necessary, such deductions and withholdings may be effected by selling any Resulting Issuer Shares to which such holder or recipient
may otherwise be entitled under this Plan of Arrangement, and any amount remaining following the sale, deduction and remittance shall
be paid to the holder or recipient entitled thereto as soon as reasonably practicable.
ARTICLE 6
AMENDMENTS
| (a) | EMV
and Tevva shall be entitled to amend, modify or supplement this Plan of Arrangement at any
time and from time to time prior to the Effective Date, provided that each such amendment,
modification /or supplement is (a) agreed to in writing by EMV and Tevva, (b) filed with
the Court and, if made following the EMV Meeting and the Tevva Meeting, approved by the Court
(to the extent required by the Court) and (c) communicated to EMV Shareholders and Tevva
Shareholders if and as required by the Court. |
| (b) | Any
amendment, modification or supplement to this Plan of Arrangement may be proposed by either
EMV or Tevva at any time prior to the earlier of the EMV Meeting or the Tevva Meeting (provided
that the other party shall have previously consented in writing thereto) with or without
any other prior notice or communication, and if so proposed and accepted by the persons voting
at the EMV Meeting and the Tevva Meeting (other than as may be required under the Interim
Order), shall become part of this Plan of Arrangement for all purposes. |
| (c) | Any
amendment, modification or supplement to this Plan of Arrangement that is approved by the
Court following the earlier of the EMV Meeting and the Tevva Meeting shall be effective only
if (a) it is consented to in writing by each of EMV and Tevva, and (b) if required by the
Court, it is consented to by EMV Shareholders and Tevva Shareholders voting in the manner
directed by the Court. |
| (d) | Any
amendment, modification or supplement to this Plan of Arrangement may be made following the
Effective Date by EMV and Tevva, provided that it concerns a matter which, in the reasonable
opinions of EMV and Tevva, is of an administrative nature required to better give effect
to the implementation of this Plan of Arrangement and is not adverse to the financial or
economic interests of EMV Securityholders or Tevva Shareholders. |
ARTICLE 7
FURTHER ASSURANCES
Notwithstanding that the
transactions and events set out herein shall occur and be deemed to occur in the order set out in this Plan of Arrangement without any
further act or formality, each of the parties to the Arrangement Agreement shall make, do and execute, or cause to be made, done or executed,
all such further acts, deeds, agreements, transfers, assurances, instruments or documents as may reasonably be required by any of them
in order further to document or evidence any of the transactions or events set out herein.
Schedule F
–
Representations and Warranties of EMV
| (a) | Organization
and Qualification. EMV is a corporation duly incorporated and existing under the laws
of the Province of British Columbia and is up-to-date in respect of all material corporate
filings and is in good standing under the Business Corporations Act (British Columbia).
EMV has the corporate power and authority to own and operate its assets and conduct its business
as now owned and conducted. EMV is duly qualified, licensed or registered to carry on business
and is in good standing in each jurisdiction in which the character of its assets and properties
owned, leased, licensed or otherwise held, or the nature of its activities, makes such qualification
necessary, and has all Authorizations required to own, lease and operate its assets and to
carry on its business as now conducted, except where the failure to be so qualified will
not, individually or in the aggregate, have a Material Adverse Change in respect of EMV. |
| (b) | Corporate
Authority. EMV has the requisite corporate power and authority to enter into and perform
its obligations under this Agreement and to consummate the transactions contemplated hereby
subject to approval of the EMV Arrangement Resolution by the EMV Shareholders. The execution
and delivery and performance by EMV of this Agreement and the consummation of the transactions
contemplated hereby, including the Arrangement, have been duly authorized by all necessary
corporate action on the part of EMV and no other corporate proceedings on the part of EMV
are necessary to authorize this Agreement or the consummation of the transactions contemplated
hereby, including the Arrangement, other than (i) approval by the EMV Board of the EMV Circular
and (ii) approval by the EMV Shareholders of the EMV Arrangement Resolution in the manner
required by the Interim Order, EMV Constating Documents and applicable law. |
| (c) | Enforcement
and Binding Obligation. This Agreement has been duly executed and delivered by EMV, and,
assuming the due authorization, execution and delivery by each of the other Parties, constitutes
a legal, valid and binding agreement of EMV enforceable against it in accordance with its
terms subject only to any limitation under bankruptcy, insolvency or other law affecting
the enforcement of creditors’ rights generally and the discretion that a court may
exercise in the granting of equitable remedies such as specific performance and injunction. |
| (d) | Government
Authorization. The execution, delivery and performance by EMV of this Agreement and the
consummation by EMV of the transactions contemplated hereby, including the Arrangement, do
not require any Authorization or other action by or in respect of, or filing, recording,
registering or publication with, or notification to, any Governmental Entity other than (i)
the Interim Order and any approvals required by the Interim Order and (ii) the Final Order. |
| (e) | No
Conflict. Subject to obtaining the EMV Key Consents, the execution, delivery and performance
by EMV of this Agreement and the consummation of the transactions contemplated hereby or
by any document referred to or contemplated in connection with this Agreement, including
the Arrangement, does not and will not (or would not with the giving of notice, the lapse
of time or the happening of any other event or condition): (i) contravene, conflict with,
or result in any violation or breach of EMV’s Constating Documents; (ii) contravene,
conflict with or result in a violation or breach of any law applicable to EMV; (iii) allow
any person to exercise any rights, require any consent, or other action by any person, or
constitute a default or breach under, or cause or permit the termination, cancellation, acceleration
or other change of any right or obligation or the loss of any benefit to which EMV is entitled
(including by triggering any rights of first refusal or first offer, change in control provision
or other restriction or limitation) under any Contract or Authorization to which EMV or any
of its Subsidiaries is a party or by which EMV or any of its Subsidiaries is bound, which
would have a Material Adverse Change in respect of EMV or its Subsidiaries; or (iv) result
in the creation or imposition of any Encumbrance upon any of EMV’s assets or the assets
of any of its Subsidiaries which would have a Material Adverse Change in respect of EMV or
its Subsidiaries. The EMV Disclosure Letter sets out all of the EMV Key Consents. |
| (i) | The
authorized capital of EMV consists of an unlimited number of EMV Shares and an unlimited
number of preferred shares. As of the close of business on the date of this Agreement, there
were 119,377,917 issued and outstanding EMV Shares, all of which have been duly authorized
and are validly issued, fully paid and non-assessable, and no issued and outstanding preferred
shares. In addition, as of the close of business on the date of this Agreement, there were
14,163,577 EMV Options, 1,875,000 EMV RSUs, no EMV PSUs, 112,231 EMV DSUs and 5,395,481 EMV
Warrants issued and outstanding. All EMV Dilutive Securities have been duly authorized and
validly issued and, upon issuance in accordance with the respective terms of such EMV Dilutive
Securities, the EMV Shares underlying such EMV Dilutive Securities will be validly issued,
fully paid and non-assessable and are not and will not be subject to or issued in violation
of any pre-emptive rights or any law. All of the issued and outstanding EMV Shares and EMV
Dilutive Securities have been offered, issued, sold and transferred in compliance with applicable
law, including applicable Securities Laws. |
| (ii) | The
EMV Disclosure Letter sets forth, in respect of each EMV Option outstanding as of the date
of this Agreement: (A) the number of EMV Shares issuable upon exercise thereof; (B) the purchase
price payable; (C) the date of grant; (D) the name of the registered holder; and (E) the
extent to which such EMV Option is vested and exercisable. |
| (iii) | The
EMV Disclosure Letter sets forth, in respect of the EMV RSUs outstanding as of the date of
this Agreement: (A) the amount of EMV Shares or cash, as applicable, issuable upon vesting;
(B) the date of grant; (C) the name of the registered holder; and (D) the general vesting
schedule of EMV RSUs. |
| (iv) | The
EMV Disclosure Letter sets forth, in respect of the EMV PSUs outstanding as of the date of
this Agreement: (A) the amount of EMV Shares or cash, as applicable, issuable upon vesting;
(B) the date of grant; (C) the name of the registered holder; and (D) the general vesting
schedule of EMV PSUs. |
| (v) | The
EMV Disclosure Letter sets forth, in respect of the EMV DSUs outstanding as of the date of
this Agreement: (A) the amount of EMV Shares or cash, as applicable, issuable upon vesting;
(B) the date of grant; (C) the name of the registered holder; and (D) the general vesting
schedule of EMV DSUs. |
| (vi) | The
EMV Disclosure Letter sets forth, in respect of the EMV Warrants outstanding as of the date
of this Agreement: (A) the name of the registered holder, (B) the number of EMV Shares issuable
upon exercise thereof; (C) the purchase price payable; and (D) the date of expiry. |
| (vii) | Except
for the outstanding EMV Options, EMV RSUs, EMV PSUs, EMV DSUs and EMV Warrants, there are
no issued, outstanding or authorized options, warrants, calls, conversion, pre-emptive, redemption,
repurchase, stock appreciation or other rights, or any other agreements, arrangements, instruments
or commitments of any kind that obligate EMV or any of its Subsidiaries to, directly or indirectly,
issue or sell any securities of EMV or any of its Subsidiaries, or give any person a right
to subscribe for or acquire, any securities of EMV or any of its Subsidiaries, or the value
of which is based on the value of the securities of EMV or any of its Subsidiaries. |
| (i) | The
minute books of EMV have been maintained in accordance in all material respects with applicable
laws and contain true, correct and complete copies of its articles and by-laws, the minutes
of every meeting of the EMV Board and every committee thereof and of its shareholders and
every written resolution of its directors and shareholders. All meetings of directors and
shareholders of EMV and its Subsidiaries have been duly called and held and all resolutions
have been duly passed in accordance in all material respects with applicable laws (except
as would not reasonably be expected to have a Material Adverse Change) at such meetings or
by written resolution. The share certificate book, register of shareholders, register of
transfers and register of directors and officers of EMV are complete and accurate in all
respects. |
| (ii) | Except
as set out in the EMV Disclosure Letter, there are no shareholders agreements governing the
affairs of EMV or the relationship, rights and duties of its shareholders, nor are there
any voting trusts, pooling arrangements or other similar agreements with respect to the ownership
or voting of any shares of EMV. |
| (h) | Subsidiaries.
The EMV Disclosure Letter sets out all of the Subsidiaries of EMV. All securities of such
Subsidiaries are held, directly or indirectly, by EMV and are held free and clear of all
Encumbrances, except as disclosed in the EMV Disclosure Letter. All equity securities held
by EMV, directly or indirectly, in the capital of its Subsidiaries have been duly authorized
and are validly issued and are outstanding as fully paid and non-assessable and no person
(other than pursuant to the Arrangement) has any right, agreement or option, present or future,
contingent or absolute, or any right capable of becoming a right, agreement or option, for
the purchase from EMV of any interest in any of such securities or for the issue or allotment
of any unissued securities in the capital of the Subsidiaries of EMV or any other security
convertible into or exchangeable for any such equity securities. Each of the Subsidiaries
of EMV (i) has been duly formed in its respective jurisdiction of formation and is up-to-date
in respect of all material corporate filings and is in good standing under the laws of such
jurisdiction and (ii) is duly qualified, licensed or registered to carry on business and
is in good standing in each jurisdiction in which the character of its assets and properties
owned, leased, licensed or otherwise held, or the nature of its activities, makes such qualification
necessary and has all requisite corporate power, authority and capacity and all Authorizations
required to carry on its business as now conducted and to own, lease and operate its properties
and assets, except as would not reasonably be expected to have a Material Adverse Change
on EMV. |
| (i) | Securities
Law Matters. |
| (i) | EMV
is a “reporting issuer” under Securities Laws in British Columbia. The EMV Shares
are listed for trading on the Nasdaq under the symbol “SOLO”. EMV is not in default
of Securities Laws or the rules or regulations of the Nasdaq. EMV has not taken any action
to cease to be a reporting issuer in any province or territory nor has EMV received notification
from any Securities Authority seeking to revoke the reporting issuer status of EMV. No delisting,
suspension of trading or cease trade or other order or restriction with respect to any securities
of EMV is pending, in effect, has been threatened, or to the knowledge of EMV, is expected
to be implemented or undertaken, and to the knowledge of EMV, EMV is not subject to any formal
or informal review, enquiry, investigation or other proceeding relating to any such order
or restriction. |
| (ii) | Since
it has been required to do so in accordance with the U.S. Exchange Act, (A) EMV has established
and maintained a system of internal control over financial reporting (as defined in Rule
13a-15 and Rule 15d-15 under the U.S. Exchange Act) sufficient to provide reasonable assurance
regarding the reliability of EMV’s financial reporting and the preparation of its financial
statements for external purposes in accordance with U.S. GAAP and (B) EMV has established
and maintained disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15
under the U.S. Exchange Act) reasonably designed to ensure that all material information
concerning EMV and its Subsidiaries and other material information required to be disclosed
by EMV in the reports that it files or furnishes under the U.S. Exchange Act is made known
on a timely basis to the individuals responsible for the preparation of EMV’s SEC filings
and other public disclosure documents. |
| (j) | EMV
Public Record. Since January 1, 2023, EMV has timely filed or delivered all documents
and instruments required to be filed or furnished by it under Securities Laws (including
“documents affecting the rights of securityholders” and “material contracts”
required to be filed by Part 12 of National Instrument 51-102 – Continuous Disclosure
Obligations) (the “EMV Public Record”). Each of the documents and
instruments constituting the EMV Public Record were prepared in all material respects in
accordance with the requirements of the Securities Laws and did not, as of the date filed
(or, if amended or superseded by a subsequent filing prior to the date of this Agreement,
on the date of such filing), contain any Misrepresentation. EMV has not filed or furnished
any confidential material change report (which at the date of this Agreement remains confidential)
or any other confidential filings (including redacted filings) with any Securities Authority.
There are no outstanding or unresolved comments in comment letters from any Securities Authority
with respect to any of document or instrument in the EMV Public Record. |
| (i) | Except
as disclosed in the EMV Disclosure Letter, the EMV Financial Statements: (A) were prepared
in accordance with U.S. GAAP consistently applied (except (1) as otherwise indicated in such
financial statements and the notes thereto or, in the case of audited statements, in the
related report of EMV’s independent auditors, or (2) in the case of unaudited interim
statements, are subject to normal period-end adjustments and may omit notes which are not
required by applicable law in the unaudited statements) and applicable law; (B) fairly present,
in all material respects, the assets, liabilities (whether accrued, absolute, contentment
or otherwise), consolidated financial position, results of operations or financial performance
and cash flows of EMV and its Subsidiaries as of their respective dates and the consolidated
financial position, results of operations or financial performance and cash flows of EMV
and its Subsidiaries for the respective periods covered by such financial statements; and
(C) reflect reserves required by U.S. GAAP in respect of all material contingent liabilities,
if any, of EMV and its Subsidiaries on a consolidated basis. |
| (ii) | There
are no off-balance sheet transactions, arrangements, obligations (including contingent obligations)
or other relationships of EMV or any of its Subsidiaries with unconsolidated entities or
other persons. |
| (iii) | The
financial books, records and accounts of EMV and each of its Subsidiaries: (A) have been
maintained, in all material respects, in accordance with U.S. GAAP, (B) are stated in reasonable
detail, (C) accurately and fairly reflect all the material transactions, acquisitions and
dispositions of EMV and its Subsidiaries, and (D) accurately and fairly reflect the basis
for the EMV Financial Statements. |
| (iv) | Except
as disclosed in the EMV Disclosure Letter, since January 1, 2021, neither EMV nor any of
its Subsidiaries nor, to the knowledge of any director, officer, employee, auditor, accountant
or representative of EMV or any of its Subsidiaries, has received or otherwise had or obtained
knowledge of any complaint, allegation, assertion, or claim, whether written or oral, regarding
the accounting or auditing practices, procedures, methodologies or methods of EMV or any
of its Subsidiaries or their respective internal accounting controls, including any complaint,
allegation, assertion, or claim that EMV or any of its Subsidiaries has engaged in questionable
accounting or auditing practices. |
| (l) | Undisclosed
Liabilities. Neither EMV nor any of its Subsidiaries has any material liabilities or
obligations of any nature, whether or not accrued, contingent, absolute, determined, determinable
or otherwise, required to be disclosed in the liabilities column of a balance sheet prepared
in accordance with U.S. GAAP, except for (A) liabilities and obligations that are specifically
presented on the audited consolidated balance sheet of EMV as of December 31, 2022 (the “EMV
Balance Sheet”) or disclosed in the notes thereto; (B) those incurred in the Ordinary
Course since the date of the EMV Balance Sheet and consistent with past practice; and (C)
those incurred in connection with the execution of this Agreement. |
| (m) | Bankruptcy,
Insolvency and Reorganization. |
| (i) | EMV
is not an insolvent person within the meaning of the Bankruptcy and Insolvency Act
(Canada), nor has EMV made an assignment in favour of its creditors nor a proposal in bankruptcy
to its creditors or any class thereof nor had any petition for a receiving order presented
in respect of it. |
| (ii) | No
EMV Subsidiary is insolvent pursuant to their respective jurisdictions of formation, nor
has any EMV Subsidiary made an assignment in favour of their creditors nor a proposal in
bankruptcy to their creditors or any class thereof nor had any petition for a receiving order
presented in respect of them. |
| (iii) | Neither
EMV nor its Subsidiaries have initiated proceedings with respect to a compromise or arrangement
with their creditors or for their winding up, liquidation or dissolution. No receiver has
been appointed in respect of EMV or its Subsidiaries, or any of their respective property
or assets and no execution or distress has been levied upon any of their property or assets.
No act or proceeding has been taken or authorized by or against EMV or any of its Subsidiaries
with respect to any amalgamation, merger, consolidation, arrangement or reorganization of,
or relating to, EMV nor, to the knowledge of EMV, have any such proceedings been authorized
by any other person. |
| (n) | Real
Property and Personal Property. |
| (i) | Neither
EMV nor its Subsidiaries own, use or occupy any real property or hold an ownership interest
in any real property, or have owned or held such ownership interest in the past five years,
save and except as set out in the EMV Disclosure Letter (the “EMV Owned Real Property”). |
| (ii) | Neither
EMV nor its Subsidiaries use, occupy or lease any real property, hold a leasehold interest
in any real property, or have a licence to use or occupy any real property save and except
as listed in the EMV Disclosure Letter (the “EMV Leased Real Property”). |
| (iii) | EMV
and its Subsidiaries are solely legally and beneficially entitled to, and have good, valid
and marketable title to, or a valid and enforceable interest and tenure (whether a leasehold,
licenced or otherwise) in, the EMV Owned Real Property and EMV Leased Real Property, as applicable,
including in and to the fixtures thereto (collectively, the “EMV Real Property”). |
| (iv) | Neither
EMV nor its Subsidiaries has sub-leased, licensed or otherwise granted to, or agreed to sub-lease,
licence or grant to, any person the right to use or occupy any EMV Leased Real Property. |
| (v) | EMV
and its Subsidiaries, as applicable, enjoy exclusive, peaceful, and quiet possession of the
EMV Leased Real Property in accordance with the terms of the lease thereof. With respect
to each such lease: (A) it is valid and binding on and enforceable against EMV or its Subsidiary
that is a party to such lease, as applicable, and, to the knowledge of EMV, the counterparties
thereto, in each case in accordance with its terms subject only to any limitation under bankruptcy,
insolvency or other law affecting the enforcement of creditors’ rights generally and
the discretion that a court may exercise in the granting of equitable remedies such as specific
performance and injunction; (B) it is in full force and effect; (C) EMV or the applicable
Subsidiary of EMV has paid all rents and additional rents and other sums, expenses and charges
due and payable by it thereunder; (D) EMV or the applicable Subsidiary has performed all
material obligations imposed on it under such lease and there exists no default or breach
under such lease by EMV or the applicable Subsidiary or, to the knowledge of EMV, by any
other party thereto; (E) no event has occurred which, whether now or after the giving of
notice, with lapse of time or both, would constitute or reasonably be expected to become
a default or breach by EMV or the applicable Subsidiary, as the case may be; (F) to the knowledge
of EMV, there are no outstanding claims of breach or indemnification or notice of default
or termination thereunder; and (G) EMV or the applicable Subsidiary has not exercised early
termination options, if any, under such lease. |
| (vi) | The
EMV Real Property is in a state of maintenance and repair in all material respects adequate
and suitable for the purposes for which it is presently being used and, to the knowledge
of EMV, there are no material repair or restoration works likely to be required in connection
with such EMV Real Property. |
| (vii) | EMV
and its Subsidiaries own, lease or licence all personal property (including all assets, equipment,
plant, inventory, machinery, vehicles, office and other
equipment) as is necessary for them to conduct their business as presently conducted
(collectively, the “EMV Personal Property”), and EMV and its Subsidiaries
have good and valid title to, or a valid and enforceable interest (whether a leasehold interest
or otherwise) in, all of such EMV Personal Property. |
| (viii) | The
EMV Disclosure Letter lists each item of EMV Personal Property owned by EMV and its Subsidiaries
which had a book value of more than $150,000 as of the date of the most recent EMV Financial
Statement or is otherwise material to the business of EMV and its Subsidiaries, taken as
a whole. |
| (ix) | No
EMV Personal Property owned by EMV or its Subsidiaries is in the possession of a third party
or is on consignment. |
| (x) | Each
item of EMV Personal Property owned by EMV or its Subsidiaries is in good operating condition
and repair, ordinary wear and tear excepted, and is suitable and adequate for the purpose
for which it is being used. |
| (xi) | There
are no Proceedings pending or, to the knowledge of EMV, threatened, against or affecting
any of the EMV Real Property or EMV Personal Property and neither EMV nor its Subsidiaries
are aware of any matter which could lead to any such Proceeding being issued or made. |
| (xii) | There
are no pending, or to the knowledge of EMV, threatened, condemnation or expropriation proceedings
with respect to any of the EMV Real Property. |
| (xiii) | No
person has any right of first refusal, option, contractual obligation, undertaking or commitment
or any other legal or equitable right, interest, estate or privilege capable of becoming
such, to purchase any of the EMV Real Property (or any portion thereof or interest therein)
or any of the material assets owned or leased or otherwise held by EMV or its Subsidiaries,
or any part thereof or interest therein, except in connection with the Arrangement. |
| (xiv) | No
material breaches of any covenant or other obligation by any party affecting title to any
EMV Real Property are outstanding or would entitle any third party to exercise a right of
entry to, or take possession of, any EMV Real Property. |
| (xv) | There
are no disputes regarding boundaries, easements, covenants or other matters relating to any
of the EMV Real Property. |
| (xvi) | The
current uses of the EMV Real Property are lawful and valid under all applicable law and any
permission authorizing such uses are unconditional and permanent or, if subject to conditions,
all conditions have been satisfied and, in respect of ongoing conditions, are being complied
with. |
| (xvii) | There
are no claims, liabilities or levies under any planning acts or statutory agreements affecting
the EMV Real Property. All required consents and approvals (whether from any local authority,
Governmental Entity or any landlord or licensor) have been obtained in respect of the development
of, the current use of and any dealing with the EMV Real Property and any alteration, extension
or other improvement thereof. |
| (xviii) | Neither
EMV nor its Subsidiaries has any actual or contingent liability in respect of any land and
buildings which were previously owned, occupied or used by either EMV or its Subsidiaries,
but no longer are. |
| (o) | Personal
Property Leases. The EMV Disclosure Letter lists all the EMV Personal Property Leases
and identifies those which cannot be terminated by EMV or its Subsidiary that is a party
thereto without liability at any time upon less than 90 days’ notice or which involve
payment by EMV or its Subsidiary that is a party thereto in the future of more than $150,000.
Each such EMV Personal Property Lease is in full force and effect and has not been amended,
and EMV is entitled to the full benefit and advantage of each EMV Personal Property Lease
in accordance with its terms. To the knowledge of EMV, each such EMV Personal Property Lease
is in good standing and there has not been any material default by EMV, as applicable, or,
to the knowledge of EMV, any other party under any EMV Personal Property Lease nor any dispute
between EMV and any other party under any such EMV Personal Property Lease. |
| (i) | Except
as disclosed in the EMV Disclosure Letter, EMV and each of its Subsidiaries is, and has been,
in compliance in all material respects with applicable law, other than acts of non-compliance
or violations which would not, individually or in the aggregate, have a Material Adverse
Change in respect of EMV. |
| (ii) | Neither
EMV nor any of its Subsidiaries have received any written notice of any Proceeding relating
to any violation of any applicable laws, except where such violation has not been and would
not be material to the business of EMV and its Subsidiaries, taken as a whole. |
| (iii) | EMV
and its Subsidiaries maintain a program of policies, procedures and internal controls reasonably
designed and implemented to provide reasonable assurance that violation of applicable laws
by any of EMV’s or its Subsidiaries’ Representatives, or other persons acting
on behalf of EMV or any of its Subsidiaries, will be prevented, detected and deterred. |
| (q) | Complete
and Accurate Responses. All information provided to Tevva (or its agents or advisors)
by EMV (or its agents or advisors) in connection with Tevva’s due diligence in relation
to this Agreement is complete and accurate in all material respects and is not misleading
in any material respect, whether by way of omission or otherwise. |
| (r) | Opinion
of Financial Advisor. The EMV Board has received the EMV Fairness Opinion and confirmation
from the EMV Financial Advisor that the Consideration to be received by EMV Shareholders
is fair, from a financial point of view, to the EMV Shareholders. |
| (s) | Finder’s
Fees; Commission. Except as disclosed in the EMV Disclosure Letter, no investment banker,
broker, finder, financial advisor or other intermediary has been retained by or is authorized
to act on behalf of EMV, the EMV Board, or any of its Subsidiaries, or any of their respective
officers, directors or employees, or is entitled to any fee, commission or other payment
from EMV or any of its Subsidiaries, or any of their respective Representatives, in connection
with this Agreement or the transactions contemplated by this Agreement. |
| (t) | EMV
Board. The EMV Board, after consultation with its financial and legal advisors, has:
(i) determined that the Consideration to be received by the EMV Shareholders pursuant to
the Arrangement and the other transactions contemplated by this Agreement is fair to such
holders and that the Arrangement is in the best interests of EMV and the EMV Shareholders;
(ii) resolved to recommend that the EMV Shareholders vote in favour of the EMV Arrangement
Resolution; and (iii) authorized the entering into of this Agreement and the performance
by EMV of its obligations under this Agreement, and no action has been taken to amend, or
supersede such determinations, resolutions, or authorizations. Each of the EMV Locked-Up
Shareholders has advised EMV that it will vote or cause to be voted all EMV Shares beneficially
held by it in favour of the EMV Arrangement Resolution and each has entered into an EMV Voting
Support Agreement with Tevva. |
| (u) | Litigation.
Except as disclosed in the EMV Disclosure Letter, there is no Proceeding against or involving
EMV or any of its Subsidiaries or any of their respective properties or assets or any
person for whose acts EMV or any of its Subsidiaries may be vicariously liable pending
or, to the knowledge of EMV, threatened and, to the knowledge of EMV, no event has occurred,
or state of facts exists, which would reasonably be expected to give rise to any such Proceeding,
in each case which, if adversely determined, would reasonably be expected to have a Material
Adverse Change in respect of EMV. |
| (i) | EMV
and its Subsidiaries are in compliance with all applicable laws respecting employment and
employment practices, terms and conditions of employment, employment/labour standards, wages
and hours, immigration, privacy, workers compensation and occupational health and safety
and has not received any notice (written or oral) of infraction of any such applicable employment-related
laws or of any claim or any investigation thereof. |
| (ii) | All
EMV Employees are legally entitled to work for EMV or the Subsidiary by which they are employed
in the jurisdiction in which they work, and all foreign workers employed by EMV or a Subsidiary
of EMV have valid work permits permitting them to perform the work they are carrying out
for EMV or such Subsidiary. EMV and each of its Subsidiaries has complied with all applicable
immigration laws in connection with any EMV Employees who are not permanent residents or
citizens in the jurisdiction in which they work, and there are no audits, orders, investigations,
charges or claims pending or, to the knowledge of EMV, threatened or reasonably anticipated,
against EMV or any of its Subsidiaries in connection with any immigration laws. |
| (iii) | The
EMV Disclosure Letter lists all the EMV Employees as of the date of this Agreement and the
position (including whether the EMV Employee is employed by EMV or one of its Subsidiaries
and, if the latter, which Subsidiary), status, as employee or independent contractor, and
if employee, whether full or part time, commencement date of employment with EMV or the applicable
Subsidiary thereof, principal location of employment, base salary, or hourly wage rate, bonus
and commission and other incentives and variable compensation, work permit status (if any)
and expiry date, and leave status of each EMV Employee (including reason for leave, last
date of active service, and their expected date of return to work). Except as disclosed in
the EMV Disclosure Letter, no EMV Employee is receiving benefits under workers’ compensation
legislation, on disability leave, statutory leave under any applicable laws, or on temporary
layoff. |
| (iv) | The
EMV Disclosure Letter lists details of any person who is not an EMV Employee and who provides
services to EMV or any of its Subsidiaries under an agreement that is not a contract of employment
with EMV or the relevant Subsidiary (including where the individual acts as a consultant
or is on secondment from another employer) and the particulars of the terms on which the
individual provides services, including the commencement date of each contract with EMV or
its Subsidiary, the length of notice necessary to terminate each contract (or if a fixed
term, the expiry date of the fixed term, location in which they provide services and their
remuneration), |
| (v) | In respect
of each EMV Employee, EMV and its Subsidiaries have: |
| (A) | performed
all obligations and duties they are required to perform (and settled all outstanding claims),
whether or not legally binding; and |
| (B) | maintained
adequate, suitable and up-to-date records. |
| (vi) | There
are no sums owing to any current or former EMV Employee other than reimbursement of expenses,
wages for the current payroll period and accrued vacation. |
| (vii) | There
are no loans to any current or former director of EMV or its Subsidiaries or EMV Employee
(or to any nominees or associates of such directors or EMV Employees) made or arranged by
EMV, any of its subsidiaries or any employee benefit trust (or similar arrangement) established
by EMV or its Subsidiaries |
| (viii) | Except
as disclosed in the EMV Disclosure Letter, none of EMV nor any of its Subsidiaries is a party
to or bound by any Contract with any director, officer or employee of EMV or any of the Subsidiaries
of EMV that includes any clauses in relation to job severance, job security or similar provisions
(other than such as results by law from the employment of an employee without an agreement
as to notice or severance), nor are there any change of control payments, golden parachutes,
severance payments, retention payments, Contracts or other agreements with current or former
directors, officers or employees providing for cash or other compensation or benefits of
any nature upon the consummation of, or relating to, the Arrangement, including a change
of control of EMV. |
| (ix) | No
EMV Employee will be entitled to any bonus, payment, accelerated vesting or other benefit
as a result of the terms of this Agreement or the transactions contemplated hereby. |
| (x) | Neither
EMV nor any of its Subsidiaries is a party, either directly or by operation of law, to any
collective agreement. No trade union, council of trade unions, employee bargaining agency
or affiliated bargaining agent holds bargaining rights with respect to any EMV Employees
by way of certification, interim certification, voluntary recognition, related employer or
successor employer rights, or, to the knowledge of EMV, has applied or threatened to apply
to be certified as the bargaining agent of any of the EMV Employees. To the knowledge of
EMV, (A) there have been no actual or threatened and there are no pending union organizing
activities involving the employees and (B) neither EMV nor any of its Subsidiaries has any
labour problems that might adversely affect the business of EMV and its Subsidiaries or lead
to an interruption of operations. |
| (xi) | Neither
EMV nor any of its Subsidiaries has received any material inspection reports under applicable
occupational health and safety legislation relating to EMV or any of its Subsidiaries in
the past three years. There are no outstanding inspection occupational health and safety
orders (“Orders”) nor, to the knowledge of EMV, any pending or threatened
charges made under applicable occupational health and safety legislation relating to EMV
or any of its Subsidiaries. There have been no fatal or critical accidents within the last
three years which could reasonably be expected to lead to charges involving EMV or any of
its Subsidiaries under applicable occupational health and safety legislation. |
| (xii) | Except
as disclosed in the EMV Disclosure Letter, no offer of employment or engagement has been
made by EMV or any of its Subsidiaries that has not yet been accepted, or that has been accepted
but where the employment or engagement has not yet started. |
| (xiii) | Neither
EMV nor any of its Subsidiaries has incurred any actual or contingent liability in connection
with any termination of employment of any EMV Employee (including redundancy payments) or
for failure to comply with any order for the reinstatement or re-engagement of any EMV Employee. |
| (xiv) | Except
as disclosed in the EMV Disclosure Letter, neither EMV nor any of its Subsidiaries has: |
| (A) | in
the last 12 months, altered any of the terms of employment or engagement of any EMV Employee;
or |
| (B) | offered,
promised or agreed to any future variation in the terms of employment or engagement of any
EMV Employee. |
| (xv) | Neither
EMV nor any of its Subsidiaries has any commitment to establish or enter into any new EMV
Employee Plan, to modify any EMV Employee Plan or the terms of any EMV Employee Plan or to
introduce any new cash incentive scheme or arrangement. EMV has made available to Tevva (A)
current, correct and complete copies of all written EMV Employee Plans, and where unwritten,
a written summary of the current terms of each EMV Employee Plan, and (B) all material written
Contracts relating to each EMV Employee Plan, including administrative service Contracts
and group insurance Contracts. Except as would not be reasonably expected to have a Material
Adverse Change on EMV, EMV and its Subsidiaries have performed all material obligations required
to be performed by them under, are not in default or violation of, and, as of the date hereof,
EMV has no knowledge of any default or violation by any other party to, any EMV Employee
Plan, and each EMV Employee Plan has been established and has been and is maintained and
administered in accordance with its terms and in compliance with all applicable laws. There
are no claims pending or, to the knowledge of EMV, threatened or reasonably anticipated (other
than routine claims for benefits) against any EMV Employee Plan or against the assets of
any EMV Employee Plan, other than as would not be expected to have a Material Adverse Change
on EMV. For the purposes of this Section (xv), “EMV Employee Plan” means
EMV’s and its Subsidiaries’ health and other medical benefit plans, including
medical or dental treatment or expenses, life and other insurance including accident insurance,
vision, legal, long-term and short-term disability. |
| (xvi) | No
EMV Employee Plan provides health insurance, life insurance or death benefits to current
or former employees of EMV beyond their retirement or other termination of service (including
to the spouses, beneficiaries, dependents or survivors of such individuals), other than as
required under applicable laws including during any statutory or contractual severance or
notice period. |
| (xvii) | The
administrator of each EMV Employee Plan is in possession of all documents and employee data
necessary to administer the EMV Employee Plan in accordance with its terms and applicable
law, and such data is complete, correct and in a form that is sufficient for the proper administration
of the EMV Employee Plan. |
| (i) | EMV
and each of its Subsidiaries has: (A) duly and timely filed, or caused to be filed, with
the required Governmental Entity all Tax Returns required to be filed by it pursuant to applicable
law prior to the date hereof, and all such Tax Returns are true and correct in all material
respects; (B) paid on a timely basis all Taxes and all assessments and reassessments of Taxes
required to have been paid to any Governmental Entity pursuant to applicable law due on or
before the date hereof, other than Taxes not yet due and payable and Taxes which are being
or have been contested in good faith and in respect of which adequate reserves have been
provided in the EMV Financial Statements; and (C) duly and timely withheld, or caused to
be withheld, all Taxes and other amounts required by law to be withheld by it (including
Taxes and other amounts required to be withheld by it in respect of any amount paid or credited
or deemed to be paid or credited by it to or for the account of any person, including any
employees, officers or directors and any non-resident person) and duly and timely paid or
remitted, or caused to be paid or remitted, to the appropriate Governmental Entity such Taxes
and other amounts required by law to be paid or remitted by it, except to the extent that
such failure has or would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Change in respect of EMV, Tevva, Holdco, Parentco or the Resulting
Issuer. |
| (ii) | All
Taxes due and owing by EMV and each of its Subsidiaries, in each instance whether or not
shown as due on any Tax Return, have been timely paid. No written claim has ever been made
by any Governmental Entity where EMV or its Subsidiaries do not file Tax Returns that such
person is subject to taxation in, or required to file Tax Returns in, such jurisdiction. |
| (iii) | All
Taxes payable by EMV or any of its Subsidiaries that are not yet due have been adequately
reserved for in the EMV Financial Statements. |
| (iv) | There
are no Encumbrances for Taxes upon (A) any assets of EMV or any of its Subsidiaries, and/or
(B) any equity securities of EMV or its Subsidiaries. |
| (v) | There
are no outstanding elections, agreements, arrangements or waivers in respect of which EMV
or any of its Subsidiaries are a party extending the statutory period or providing for an
extension of time with respect to the assessment or reassessment of any Taxes of, or the
filing of any Tax Return or any payment of any Taxes by, EMV or any of its Subsidiaries. |
| (vi) | Each
of EMV and its Subsidiaries is in material compliance with all Tax Laws applicable to such
person. Neither EMV nor its Subsidiaries has received written notice of any Tax-related Proceeding
which has not been fully resolved. |
| (vii) | None
of EMV, its Subsidiaries, or the Resulting Issuer will be required to include any item of
income in, or exclude any item of deduction from, taxable income for any taxable period (or
portion thereof) ending after the Effective Date as a result of any: (A) change in method
of accounting or use of an improper method of accounting, in each instance relating to transactions
entered into or undertaken by EMV or its Subsidiaries or accounting methods employed by EMV
or its Subsidiaries, in each instance prior to the Effective Time, (B) settlement arrangements,
closing arrangement, or agreement regarding the resolution of any Tax matter with any Governmental
Entity, which arrangement or agreement was executed on or prior to the Effective Date by
EMV or any of its Subsidiaries, (C) intercompany transaction involving EMV or its Subsidiaries
that occurred or was reported on or prior to the Effective Date, (D) installment sale or
open transaction disposition or arrangement made by EMV or its Subsidiaries on or prior to
the Effective Date, (E) prepaid amount received by EMV or its Subsidiaries on or prior to
the Effective Date, or (F) election made by EMV or its Subsidiaries pursuant to any Tax Law. |
| (x) | Transactions
with Affiliates. Other than those agreements listed in the EMV Disclosure Letter,
none of the EMV Shareholders, any affiliate of any EMV Shareholder, any officer, director
or affiliate of EMV and any immediate family member of any of the foregoing persons is a
party to or beneficiary of any Contract or transaction with EMV or its Subsidiaries or has
any interest in any property used or owned by EMV or its Subsidiaries. |
| (i) | EMV
maintains on behalf of itself and its Subsidiaries fire (with extended risk and casualty
coverage), general liability, use and occupancy and other forms of insurance with reputable
and sound insurers covering its property and assets in the province of British Columbia and
the state of Arizona and protecting the business in such amounts and against such losses
and claims as are generally maintained for comparable businesses and properties. The EMV
Disclosure Letter sets forth and describes all insurance policies currently maintained by
EMV and its Subsidiaries. Each such insurance policy is valid and subsisting and in good
standing, all premiums due thereunder have been paid, no notice of cancellation, nonrenewal
or termination has been received by EMV or any of its Subsidiaries with respect to any such
policy, there is no existing default thereunder or event that, with or without the passage
of time or the giving of notice or both, would constitute noncompliance with, or a default
under, any such policy or entitle any insurer to terminate or cancel any such policy, and
EMV and/or one of its Subsidiaries is entitled to all rights and benefits thereunder. |
| (ii) | There
are no pending claims under any of such insurance policies and no recent inspection reports,
if any, received from insurance underwriters as to the condition or insurance value of the
insured property and assets. Neither EMV nor any of its Subsidiaries has failed to give any
notice or present any claim under any of such insurance policies in due and timely fashion.
To the knowledge of EMV, there are no circumstances which might entitle EMV or its Subsidiaries
to make a claim under any of such insurance policies or which might be required under any
of such insurance policies to be notified to the insurers. |
Since January 1, 2021 and except as disclosed in the EMV Public
Record or the EMV Disclosure Letter:
| (i) | other
than the transactions contemplated in this Agreement, EMV and each of its Subsidiaries has
conducted their respective business only in the Ordinary Course; |
| (ii) | there
has not been any event, circumstance or occurrence which has had, or is reasonably likely
to give rise to, individually or in the aggregate, a Material Adverse Change in respect of
EMV; |
| (iii) | except
for Ordinary Course adjustments to employees (other than directors or officers), there has
not been any material increase in the salary, bonus, or other remuneration payable to any
officer or executive employees of any of EMV or any of its Subsidiaries; |
| (iv) | there
has not been any redemption, repurchase or other acquisition of EMV Shares by EMV, or any
declaration, setting aside or payment of any dividend or other distribution (whether in cash
or otherwise) with respect to the EMV Shares; and |
| (v) | there
has not been any entering into, or an amendment of, any Material Contract of EMV, other than
in the Ordinary Course. |
| (aa) | EMV
Material Contracts. |
| (i) | The
EMV Disclosure Letter contains material details of each Material Contract of EMV. |
| (ii) | Each
Material Contract of EMV is legal, valid, binding and in full force and effect and is enforceable
by EMV or a Subsidiary of EMV, as applicable, and, to the knowledge of EMV, each counterparty
thereto, in accordance with its terms (subject to bankruptcy, insolvency and other laws affecting
creditors’ rights generally, and to general principles of equity) and is the product
of fair and arms’ length negotiations between each of the parties to such Material
Contract of EMV. |
| (iii) | EMV
and each of its Subsidiaries have performed in all material respects all respective obligations
required to be performed by them to date under the Material Contracts of EMV and neither
EMV nor any of its Subsidiaries nor, to the knowledge of EMV, any other party to any Material
Contract, is in breach or default under any such Material Contract, nor does EMV have knowledge
of any condition that with the passage of time or the giving of notice or both would result
in such a breach or default. |
| (iv) | None
of EMV or any of its Subsidiaries knows of, or has received any notice (whether written or
oral) of, any breach or default under nor, to the knowledge of EMV, does there exist any
condition which with the passage of time or the giving of notice or both would result in
a breach or default of any Material Contract by any other party to a Material Contract of
EMV. |
| (v) | Neither
EMV nor its Subsidiaries has received any notice (whether written or oral) that any party
to a Material Contract of EMV intends to cancel, terminate or otherwise modify or not renew
its relationship with EMV or any of its Subsidiaries, and, to the knowledge of EMV, no such
action has been threatened. |
| (vi) | Provided
the EMV Key Consents are obtained, no party to a Material Contract of EMV, other than a Contract
listed in the EMV Disclosure Letter, is entitled to terminate or amend such Material Contract
in connection with or as a result of, or is otherwise entitled to a payment in connection
with, the Arrangement or the transactions contemplated by this Agreement. |
| (bb) | Environmental
Matters. |
| (i) | EMV
and its Subsidiaries are and, except for matters that have been fully resolved, have been,
in compliance, in all material respects, with all laws orders, directives, determinations,
requirements and decisions rendered by any Governmental Entity relating to the protection
of the environment, investigation and remediation of soils, groundwater, sediment, water,
or air, occupational health and safety or the processing, use, treatment, storage, disposal,
discharge, transport, handling, release, spill, emission or presence in the environment of
any pollutant, contaminant, chemical, industrial, toxic or hazardous waste (“Hazardous
Substances”), or any element, compound, material or substance in respect of which
there are prescribed standards (the “Environmental Laws”), and neither
EMV nor its Subsidiaries have received any enforcement, prohibition, stop, remediation, improvement
or any other notice from, or been subject to any civil sanction imposed by, any enforcement
authority with regard to any breach of Environmental Laws or in connection with any Hazardous
Substances. There has been no material release of any Hazardous Substances by EMV or its
Subsidiaries at, in, on or under any EMV Real Property or in connection with EMV’s
and its Subsidiaries’ operations off-site of the EMV Real Property. |
| (ii) | All
permits required in connection with Environmental Laws in connection with the EMV Real Property
have been obtained and are in full force and effect and there are no facts or circumstances
that may lead to the revocation, suspension, variation or non-renewal of any such permits
and there are no conditions of such permits which require or are likely to require any material
expenditure. |
| (iii) | There
are no Hazardous Substances at, on or under, nor have any Hazardous Substances been emitted,
escaped or migrated from, any of the EMV Real Properties. |
| (iv) | Neither
EMV nor its Subsidiaries has given any warranties or indemnities or entered into any other
agreement in respect of any liabilities, duties or obligations that arise under Environmental
Laws. |
| (cc) | Money
Laundering; Anti-Terrorism; Anti-Corruption. |
| (i) | None
of EMV, its Subsidiaries nor, to the knowledge of EMV, any Representative thereof, has made
any unlawful contribution or other payment to any official of, or candidate for, any federal,
state, provincial or foreign office, failed to disclose fully any contribution, or otherwise
not been in compliance with applicable laws in all applicable jurisdictions related to anti-corruption
or anti-bribery, including the United States Foreign Corrupt Practices Act, the Corruption
of Foreign Public Officials Act (Canada) or is in violation of any other similar law,
or made any payment to any foreign or Canadian, governmental officer or official, or other
person charged with similar public or quasi-public duties, other than payments required or
permitted by applicable laws. |
| (ii) | Each
of EMV and its Subsidiaries currently is and, since January 1, 2020, has been, in compliance
with applicable laws in all applicable jurisdictions related to (A) economic sanctions administered,
enacted or enforced by any Governmental Entity, (B) export controls, (C) anti-money laundering,
including the Money Laundering Control Act of 1986, 18 U.S.C. §§ 1956, 1957, and
any other equivalent or comparable laws of other countries, (D) anti-boycott regulations,
as administered by the U.S. Department of Commerce, and (E) the importation of goods. |
| (iii) | Neither
EMV nor any of its Subsidiaries has received written notice of nor, to the knowledge of EMV,
any of its Representatives is or has been the subject of, any Proceedings regarding any offense
or alleged offense under any of the laws set forth in Sections (cc)(i) or (ii) (including
by virtue of having made any disclosure relating to any offense or alleged offense) and,
to the knowledge of EMV, there are no circumstances likely to give rise to any such Proceeding. |
| (dd) | Intellectual
Property. |
| (i) | The
EMV Disclosure Letter sets forth a complete and correct list of all: (A) applied for or registered
EMV Owned IP, including all registrations and all pending applications for all, patents,
provisional and patent applications, trademarks, trade names, corporate names, domain names,
social media accounts, and copyrights (the “EMV Registered Owned IP”);
(B) material unregistered EMV Owned IP, including all material common law, unregistered trademarks;
and (C) all Material Contracts regarding any Intellectual Property Rights of any person that
are licensed for use by EMV or any Subsidiary of EMV in its business and operations, as presently
conducted. |
| (ii) | The
EMV Registered Owned IP are subsisting and unexpired, and have not been abandoned or cancelled.
Except as would not reasonably be expected to, individually or in the aggregate, have a Material
Adverse Change on EMV, EMV and each of its Subsidiaries owns or possesses sufficient and
legally enforceable licenses or other rights to all Intellectual Property and Intellectual
Property Rights necessary for the conduct of its business as currently conducted, free and
clear of Encumbrances. |
| (iii) | To
the knowledge of EMV, all of the EMV Registered Owned IP are valid and, other than any EMV
Registered Owned IP comprising applications, enforceable. |
| (iv) | To
the knowledge of EMV, the conduct of the business of EMV, as currently carried on and proposed
to be carried on, and the EMV Owned IP, or the use and commercial exploitation thereof, does
not infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any
person. Neither EMV nor any of its Subsidiaries has received written or oral notice asserting
that EMV or any of its Subsidiaries has infringed on any Intellectual Property Rights of
any person. To the knowledge of EMV, no person is infringing, misappropriating, or otherwise
violating the EMV Owned IP. |
| (v) | EMV
has taken all commercially reasonable steps to protect the EMV Owned IP comprising confidential
information in each case in accordance with industry practice for companies of a similar
size and nature. To the knowledge of EMV, none of the EMV Owned IP was developed using funding
from the government, universities, or other academic institutions. |
| (vi) | EMV
is not a party to or bound by any Material Contract or other obligation that limits or impairs
its ability to use, sell, transfer, assign or convey, or that otherwise affects (A) any of
the EMV Owned IP or (B) any of the Intellectual Property Rights licensed to or used by EMV,
the loss of which would have a Material Adverse Change on EMV. Neither EMV nor any of its
Subsidiaries has granted to any person any right, license or permission to use all or any
portion of, or otherwise encumbered any of its rights in, or to, any of the EMV Owned IP.
Neither EMV nor any of its Subsidiaries is obligated to pay any royalties, fees or other
compensation to any person in respect of its use or license of any material Intellectual
Property or Intellectual Property Rights in the operation of its business, other than license,
maintenance or other fees for software paid in the Ordinary Course. |
| (vii) | The
transactions contemplated by this Agreement and the EMV Arrangement Resolution will not affect
EMV’s or any of its Subsidiaries’ rights in any EMV Owned IP, trigger any additional
obligations on EMV or any of its Subsidiaries, or otherwise adversely affect EMV’s
or any of its Subsidiaries’ rights to commercialize the EMV Owned IP. |
| (viii) | To
the knowledge of EMV, no material confidential information of EMV or any of its Subsidiaries
has been disclosed to any third party other than pursuant to a confidentiality agreement
pursuant to which such third party agrees to protect such confidential information or otherwise
in accordance with EMV’s reasonable business practices. |
| (ix) | Each
Trade Secret material to EMV and/or its Subsidiaries is appropriately documented and the
documentation in possession of EMV and/or its Subsidiaries related to such Trade Secrets
is current, accurate and sufficient in detail and content to identify and explain the Trade
Secrets and allow their full and proper use by EMV without reliance on the knowledge or memory
of any individual. EMV has taken reasonable precautions to protect the secrecy, confidentiality
and value of its and its Subsidiaries’ Trade Secrets. Any disclosures of Trade Secrets
have been made under a written agreement which includes contractual provisions to protect
unauthorized disclosure and use of the Trade Secret. No Trade Secret of EMV or its Subsidiaries
is currently subject to any adverse claim or has been challenged or to the knowledge of EMV,
threatened in any way. No Trade Secrets of EMV or its Subsidiaries are co-owned or jointly-owned
with any person. To the knowledge of EMV, no confidential or proprietary information owned
by any person (other than EMV, its directors, officers or employees) has been incorporated
into any Trade Secret of EMV or its Subsidiaries. No Trade Secret of EMV or its Subsidiaries
is the subject of any escrow or similar arrangement which may provide the release of such
Trade Secrets to persons other than EMV under any conditions. |
| (x) | EMV
has taken commercially reasonable measures to ensure that confidential information of EMV
and its Subsidiaries and EMV Data are protected against unauthorized access, use, modification,
disclosure or other misuse, in a manner which is proportional to the risks associated with
such information and, to the knowledge of EMV, no material unauthorized access to or unauthorized
use, modification, disclosure or other material misuse of such confidential information or
EMV Data has occurred within the past three years. |
| (xi) | All
persons, including current and former founders, executives, employees and contractors of
EMV, who contributed in any material respect to any Intellectual Property Rights on behalf
of EMV or any of its Subsidiaries, including any EMV Owned IP, during the course of their
employment or engagement or other association with EMV or any of its Subsidiaries have executed
enforceable assignment agreements that assign to EMV or its Subsidiaries all of such founders’,
executives’, employees’ or contractors’ rights in such Intellectual Property
Rights to the extent that such Intellectual Property Rights do not otherwise automatically
vest initially in EMV or its Subsidiaries as a work-made-for-hire or otherwise by operation
of applicable employment law. All such persons have waived all moral rights in and to the
EMV Owned IP. |
| (i) | The
EMV Disclosure Letter sets forth a full, complete and true list of the Software used in EMV’s
or its Subsidiaries’ business, including and identifying all Software components owned
by EMV or its Subsidiaries (“EMV Software”) and all Software licensed
from third parties, including without limitation identifying all open source software (“EMV
Third Party Software”) excluding any off-the-shelf Software that is generally commercially
available to the retail public. |
| (ii) | The
Software used in EMV’s (and any of its Subsidiaries’) businesses is in good working
order and condition, conform to the applicable specifications and documentation, and performs
the functions and operations intended by EMV or the applicable third party. |
| (iii) | Except
for the EMV Third Party Software listed in the EMV Disclosure Letter: |
| (A) | EMV
(or any of its Subsidiaries) is the sole and exclusive owner of, or has valid and enforceable
rights to use, sell, license, and assign all EMV Software free and clear of any liens, encumbrances,
claims, or restrictions of any kind; and |
| (B) | the
EMV Software neither contains nor embodies nor uses nor requires any third party software,
including development tools and utilities. |
| (iv) | Copies
of all material license and maintenance agreements for the EMV Third Party Software have
been made available by EMV to Tevva. |
| (v) | No person
has been provided a copy of the EMV Software except pursuant to a license. |
| (vi) | Other
than components made available to EMV under permissive open source code licenses, all copies
of the source code and related documentation for all EMV Software are securely located at
EMV’s premises at the applicable address specified in the EMV Disclosure Letter. No
source code or related documentation forming part of the EMV Software is subject to escrow. |
| (vii) | The
source code or related documentation of any EMV Software has not been disclosed to any third
party. None of the EMV Software is subject to a ‘copyleft’ open source code license
or to any license requiring the present or future public disclosure of its source code. None
of the EMV Software used in EMV’s business is subject to a ‘copyleft’ open
source code license or to any license that as used by EMV or its Subsidiaries requires (A)
the present or future public disclosure of its source code or (B) the license or other provision
of any EMV Software used in EMV’s (and any of its Subsidiaries’) business on
a royalty-free basis, or (C) allow any person to decompile, disassemble or otherwise reverse
engineer any EMV Software, and EMV and its Subsidiaries are in compliance with any restrictions
and requirements for any copyleft open source code licenses. As of the date hereof, there
has been no unauthorized theft, reverse engineering, decompiling, disassembling, or other
unauthorized disclosure of or access to any source code for any Software used in EMV’s
(and any of its Subsidiaries’) business. As of the date hereof, there has been no unauthorized
theft, reverse engineering, decompiling, disassembling, or other unauthorized disclosure
of or access to any source code for any Software used in EMV’s (and any of its Subsidiaries’)
business. |
| (viii) | Except
as listed in the EMV Disclosure Letter, there are no material problems or material defects
in the Software used in EMV’s (and any of its Subsidiaries’) business including
bugs, logic errors or failures of the Software used in EMV’s (and any of its Subsidiaries’)
business to operate as described in the related documentation, and, except for such disclosed
material problems or material defects, the Software used in EMV’s (and any of its Subsidiaries’)
business operates substantially in accordance with its documentation and specifications and
has no other material problems or defects. |
| (ix) | The
finished and commercially ready Software used in EMV’s (or any of its Subsidiaries)
businesses does not contain any undocumented code, disabling mechanism or protection feature
intentionally designed to prevent its use, including any clock, timer, counter, computer
virus, worm, software lock, drop dead device, Trojan-horse routine, trap door, time bomb
or any other codes or instructions that may be used to access, modify, replicate, distort,
delete, damage or disable or otherwise impair Software or data, other software, operating
systems, computers, networks or equipment with which the finished and commercially ready
Software interacts. |
| (ff) | Information
Technology Systems. The IT Systems of EMV and its Subsidiaries are in good working condition
to effectively perform all computing, information technology and data processing operations
necessary for the operation of the business of EMV and its Subsidiaries. In the three years
prior to the date of this Agreement, there has been no unauthorized access, use, intrusion,
or failure, breakdown or continued substandard performance of any IT System that has caused
(i) a material disruption or interruption in or to the operation of any business of EMV or
any of its Subsidiaries or (ii) material loss, destruction, damage, or harm of or to EMV
(or any of its Subsidiaries) or its operations, personnel, property, or other assets. EMV
has taken steps consistent with applicable industry best practices, to protect the integrity
and security of the IT Systems of EMV and the data and other information stored thereon.
EMV has taken commercially reasonable steps to provide for the remote-site back-up of data
and information critical to the conduct of its business in an attempt to avoid material disruption
to, or material interruption in, the conduct of such business. EMV has taken appropriate
measures in accordance with industry practices to ensure disaster recovery and business continuity
plans in the event of disaster or emergency. |
| (gg) | Finance
and Guarantees. |
| (i) | The
EMV Disclosure Letter contains full particulars of all money borrowed by EMV and each of
its Subsidiaries in an amount greater than $150,000, and all financial facilities currently
outstanding or available to EMV or any of its Subsidiaries in an amount greater than $150,000,
including copies of all related documentation. |
| (ii) | To
the knowledge of EMV, there are no circumstances or matters which could affect the continuance
of any of the financial facilities that are currently available to EMV or any of its Subsidiaries
or which may result in an amendment of their terms. |
| (iii) | No
Encumbrance over any of the assets of EMV or its Subsidiaries is now enforceable and there
are no circumstances likely to give rise to such enforcement. |
| (iv) | No
Encumbrance, guarantee, indemnity or other similar security arrangement in an amount in excess
of $150,000 has been entered into, given or agreed to be given by: |
| (A) | EMV,
any of its Subsidiaries or any third party for any indebtedness or other obligations of EMV
or any of its Subsidiaries; or |
| (B) | EMV
or any of its Subsidiaries for any indebtedness or other obligations of any third party. |
| (i) | The
EMV Disclosure Letter identifies each EMV Privacy Policy currently in effect. EMV and each
of its Subsidiaries is and, in the three years prior to the date of this Agreement, has been,
in compliance with each applicable EMV Privacy Policy. |
| (ii) | To
the knowledge of EMV, EMV and each of its Subsidiaries is and, in the three years prior to
the date of this Agreement, has been, in material compliance with all applicable laws regarding
the collection, retention, use, processing, disclosure, transfer and protection of Personal
Information. |
| (iii) | None
of EMV nor any of its Subsidiaries has received any request, correspondence, notice or other
communication pursuant to applicable privacy laws, or been subject to any enforcement action
(including any fines or other sanctions) relating to a breach or alleged breach of their
obligations under applicable laws, and none of EMV or any of its Subsidiaries has received
any claim, complaint, correspondence or other communication from an individual or any other
person making a claim under applicable privacy laws or alleging any breach of any applicable
privacy laws and there is no fact or circumstances that may lead to any such notice, request,
correspondence, communication, claim, complaint or enforcement action. |
| (iv) | To
the knowledge of EMV, EMV and each of its Subsidiaries has all necessary consents and authorizations
to collect, use, disclose, retain, process and transfer any Personal Information in its possession
or under its control to the extent required in connection with the operation of the business
as currently conducted. |
| (v) | EMV
and each of its Subsidiaries has taken commercially reasonable measures to ensure that confidential
information of EMV and EMV Data are protected against unauthorized access, use, modification,
disclosure or other misuse, in a manner which is proportional to the risks associated with
such information. |
| (vi) | The
execution, delivery and performance of this Agreement and the consummation of the contemplated
transactions, including any use, transfer or disclosure of Personal Information resulting
from such transactions, will not violate any applicable privacy law or the EMV Privacy Policies. |
| (ii) | Canada’s
Anti-Spam Legislation. |
| (i) | EMV
is currently in compliance with and has always complied with all applicable CASL provisions
since the effective date of such provisions. |
| (ii) | EMV
has implemented policies and procedures that comply with CASL, and EMV has operated in accordance
with such policies and procedures at all times. |
| (iii) | No
person (including any Governmental Entity) has commenced any complaint, claim, proceeding,
litigation, investigation, inquiry, or enforcement action relating to EMV’s CASL compliance,
or, to the knowledge of EMV, threatened any such complaint, claim, proceeding, litigation,
investigation, inquiry, or enforcement action. |
Schedule G
–
Representations and Warranties of Tevva
For the purpose of this
Schedule G, in relation to any assets owned, liabilities incurred, companies incorporated in, or business carried on in any jurisdiction
other than England and Wales, reference to any English statute, bye-law, regulation, rule, delegated legislation or order is deemed to
refer to the statute, bye-law, regulation, rule, delegated legislation or order approximating it in the other jurisdiction or where there
is more than one, that which most nearly approximates it.
| (a) | Organization
and Qualification. Tevva is a private limited company duly formed and validly existing
under the laws of England and Wales and is up-to-date in respect of all material corporate
filings and is in good standing under the laws of England and Wales. Tevva has the corporate
power and authority to own and operate its assets and conduct its business as now owned and
conducted. Tevva is duly qualified, licensed or registered to carry on business and is in
good standing in each jurisdiction in which the character of its assets and properties owned,
leased, licensed or otherwise held, or the nature of its activities, makes such qualification
necessary, and has all Authorizations required to own, lease and operate its assets and to
carry on its business as now conducted, except where the failure to be so qualified will
not, individually or in the aggregate, have a Material Adverse Change in respect of Tevva. |
| (b) | Corporate
Authority. Tevva has the requisite corporate power and authority to enter into and, as
applicable, subject to approval of the Tevva Transaction Resolutions by the Tevva Ordinary
Shareholders, perform its obligations under this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery and performance by Tevva of this Agreement,
the Holdco Share Transfer and the consummation of the transactions contemplated hereby, including
the Arrangement, have been duly authorized by all necessary corporate action on the part
of Tevva and no other corporate proceedings on the part of Tevva are necessary to authorize
this Agreement, the Holdco Share Transfer or the consummation of the transactions contemplated
hereby, including the Arrangement, other than (i) approval by the Tevva Board of the Tevva
Circular and (ii) approval by the Tevva Ordinary Shareholders of the Tevva Transaction Resolutions. |
| (c) | Enforcement
and Binding Obligation. This Agreement has been duly executed and delivered by Tevva,
and, assuming the due authorization, execution and delivery by each of the other Parties,
constitutes a legal, valid and binding agreement of Tevva enforceable against it in accordance
with its terms. |
| (d) | Government
Authorization. The execution, delivery and performance by Tevva of this Agreement, the
Holdco Share Transfer and the consummation by Tevva of the transactions contemplated hereby,
including the Arrangement, does not require any Authorization or other action by or in respect
of, or filing, recording, registering or publication with, or notification to, any Governmental
Entity, other than (i) the Interim Order and any approvals required by the Interim Order
and (ii) the Final Order. |
| (e) | No
Conflict. Subject to obtaining the Tevva Key Consents, the execution, delivery and performance
by Tevva of this Agreement, the Holdco Share Transfer and the consummation of the transactions
contemplated hereby or by any document referred to or contemplated in connection with this
Agreement, including the Arrangement, does not and will not (or would not with the giving
of notice, the lapse of time or the happening of any other event or condition): (i) contravene,
conflict with, or result in any violation or breach of Tevva’s Constating Documents;
(ii) contravene, conflict with or result in a violation or breach of any law applicable to
Tevva; (iii) allow any person to exercise any rights, require any consent, or other action
by any person, or constitute a default or breach under, or cause or permit the termination,
cancellation, acceleration or other change of any right or obligation or the loss of any
benefit to which Tevva is entitled (including by triggering any rights of first refusal or
first offer, change in control provision or other restriction or limitation) under any Contract
or Authorization to which Tevva or any of its Subsidiaries is a party or by which Tevva or
any of its Subsidiaries is bound, which would have a Material Adverse Change in respect of
Tevva or its Subsidiaries; or (iv) result in the creation or imposition of any Encumbrance
upon any of Tevva’s assets or the assets of any of its Subsidiaries which would have
a Material Adverse Change in respect of Tevva or its Subsidiaries. The Tevva Disclosure Letter
sets out all of the Tevva Key Consents (other than consents provided for in clause (D) of
the definition of Tevva Key Consents). |
| (i) | As of
the close of business on the date of this Agreement, there were 8,576,124 issued and allotted
Tevva Ordinary Shares of £0.0001538 each in the capital of Tevva and 722,883 issued
and allotted Tevva A Ordinary Shares of £0.0001538 in the capital of Tevva (the “Issued
Shares”). In addition, as of the close of business on the date of this Agreement,
there were 112,000 Tevva Options and 202,758 Tevva Warrants issued and outstanding. All Tevva
Options and Tevva Warrants have been duly authorized and validly issued and, upon issuance
in accordance with the respective terms of such Tevva Options and Tevva Warrants, the Tevva
Shares underlying such Tevva Options and Tevva Warrants will be validly issued as fully paid
and are not and will not be subject to or issued in violation of any pre-emptive rights or
any law. All of the Issued Shares and issued and outstanding Tevva Options and Tevva Warrants
have been offered, issued, sold and transferred in compliance with applicable law, including
applicable Securities Laws. |
| (ii) | The
Issued Shares constitute the whole of the allotted and issued share capital of
Tevva and are fully paid or credited as fully paid. |
| (iii) | No equity
securities in the capital of Tevva or any of its Subsidiaries have been issued, and
no transfer of any such equity securities has been registered, except in accordance
with all applicable laws and the memorandum and articles of association of Tevva or its relevant
Subsidiary (as the case may be), and all such transfers have been duly stamped (where applicable). |
| (iv) | The
Tevva Disclosure Letter sets forth, in respect of each Tevva Option and Tevva Warrant outstanding
as of the date of this Agreement: (A) the number of Tevva Shares issuable upon exercise thereof;
(B) the purchase price payable; (C) the date of grant; (D) the date of expiry; (E) the name
of the registered holder, identifying whether such holder is not an employee of Tevva or
its Subsidiaries; and (F) the extent to which such Tevva Options and Tevva Warrants are vested
and are exercisable. |
| (v) | Except
for the outstanding Tevva Options and Tevva Warrants, there are no issued, outstanding or
authorized options, warrants, calls, conversion, pre-emptive, redemption, repurchase, stock
appreciation or other rights, or any other agreements, arrangements, instruments or commitments
of any kind that obligate Tevva or any of its Subsidiaries to, directly or indirectly, issue
or sell any securities of Tevva or any of its Subsidiaries, or give any person a right to
subscribe for or acquire, any securities of Tevva or any of its Subsidiaries, or the value
of which is based on the value of the securities of Tevva or any of its Subsidiaries. |
| (i) | The
minute books of Tevva have been maintained in accordance in all material respects with applicable
laws and contain true, correct and complete copies of its articles and by-laws, the minutes
of every meeting of the Tevva Board and every committee thereof and of its shareholders and
every written resolution of its directors and shareholders. All meetings of directors and
shareholders of Tevva and its Subsidiaries have been duly called and held and all resolutions
have been duly passed in accordance in all material respects with applicable laws (except
as would not reasonably be expected to have a Material Adverse Change) at such meetings or
by written resolution. The share certificate book, register of shareholders, register of
transfers and register of directors and officers of Tevva are complete and accurate in all
respects. |
| (ii) | The
register of people with significant control (“PSC Register”) and all other
statutory books and registers of Tevva and each of its Subsidiaries have been properly kept
in accordance with all applicable laws, are correctly written up to date and contain a true
record of matters and information which should be contained therein. No notice or allegation
has been received that any such registers or books are incorrect or should be rectified. |
| (iii) | In
relation to its PSC Register, Tevva and each of its Subsidiaries has at all times complied
with its duties under section 790D (Duty to investigate and obtain information) and section
790E (Duty to keep information up-to-date) of the CA 2006. |
| (iv) | All
returns, particulars, resolutions and other documents that Tevva or any of its Subsidiaries
is required by applicable law to file with, or deliver to, any authority in any jurisdiction
(including, in particular, the Registrar of Companies in England and Wales) have been correctly
made up and duly filed or delivered. |
| (v) | All
dividends or distributions declared, made or paid by Tevva or any of its Subsidiaries have
been declared, made or paid in accordance with its memorandum and articles of association,
all applicable laws and regulations and any agreements or arrangements made with
any third party regulating the payment of dividends and distributions. |
| (vi) | Except
as set out in the Tevva Disclosure Letter, there are no shareholders agreements governing
the affairs of Tevva or the relationship, rights and duties of its shareholders, nor are
there any voting trusts, pooling arrangements or other similar agreements with respect to
the ownership or voting of any shares of Tevva. Pursuant to Tevva’s Articles of Association
the holders of the Tevva A Ordinary Shares do not have any voting rights and will not receive
any consideration in exchange for the transfer of such Tevva A Ordinary Shares to Holdco. |
| (i) | The
Tevva Disclosure Letter sets out all of the Subsidiaries of Tevva. All securities of such
Subsidiaries are held, directly or indirectly, by Tevva and are held free and clear of all
Encumbrances, except as disclosed in the Tevva Disclosure Letter. All equity securities held
by Tevva, directly or indirectly, in the capital of its Subsidiaries have been duly authorized
and are validly issued and allotted as fully paid and no person (other than pursuant to the
Arrangement) has any right, agreement or option, present or future, contingent or absolute,
or any right capable of becoming a right, agreement or option, for the purchase from Tevva
of any interest in any of such securities or for the issue or allotment of any unissued securities
in the capital of the Subsidiaries of Tevva or any other security convertible into or exchangeable
for any such equity securities. Each of the Subsidiaries of Tevva (A) has been duly formed
in its respective jurisdiction of formation and is up-to-date in respect of all material
corporate filings and is in good standing under the laws of such jurisdiction and (B) is
duly qualified, licensed or registered to carry on business and is in good standing in each
jurisdiction in which the character of its assets and properties owned, leased, licensed
or otherwise held, or the nature of its activities, makes such qualification necessary and
has all requisite corporate power, authority and capacity and all Authorizations required
to carry on its business as now conducted and to own, lease and operate its properties and
assets, except as would not reasonably be expected to have a Material Adverse Change on Tevva. |
| (ii) | The
Tevva Disclosure Letter sets out details of Advanced Electric Machines Limited’s (company
number 10480941) (“AEML”) memorandum and articles of association and any
shareholders agreement (or other similar agreements) governing the affairs of AEML or the
relationship, rights and duties of its shareholders. |
| (iii) | Neither
Tevva nor any of its Subsidiaries shares or jointly owns any of its assets with AEML (and
vice versa) and there is no partnership, joint venture, consortium, joint development or
similar arrangement between Tevva or its Subsidiaries with AEML. |
| (i) | The
Tevva Financial Statements: (A) were prepared in accordance with IFRS consistently applied
(except (1) as otherwise indicated in such financial statements and the notes thereto or,
in the case of audited statements, in the related report of Tevva’s independent auditors,
or (2) in the case of unaudited statements, are subject to normal period-end adjustments
and may omit notes which are not required by applicable law in the unaudited statements)
and applicable law; (B) fairly present, in all material respects, the assets, liabilities
(whether accrued, absolute, contentment or otherwise), consolidated financial position, results
of operations or financial performance and cash flows of Tevva and its Subsidiaries as of
their respective dates and the consolidated financial position, results of operations or
financial performance and cash flows of Tevva and its Subsidiaries for the respective periods
covered by such financial statements; and (C) reflect reserves required by IFRS in respect
of all material contingent liabilities, if any, of Tevva and its Subsidiaries on a consolidated
basis. |
| (ii) | There
are no off-balance sheet transactions, arrangements, obligations (including contingent obligations)
or other relationships of Tevva or any of its Subsidiaries with unconsolidated entities or
other persons. |
| (iii) | The
financial books, records and accounts of Tevva and each of its Subsidiaries: (A) have been
maintained, in all material respects, in accordance with IFRS; (B) are stated in reasonable
detail; (C) accurately and fairly reflect all the material transactions, acquisitions and
dispositions of Tevva and its Subsidiaries; and (D) accurately and fairly reflect the basis
for the Tevva Financial Statements. |
| (iv) | Since
January 1, 2021, neither Tevva nor any of its Subsidiaries nor, to the knowledge of any director,
officer, employee, auditor, accountant or representative of Tevva or any of its Subsidiaries,
has received or otherwise had or obtained knowledge of any complaint, allegation, assertion,
or claim, whether written or oral, regarding the accounting or auditing practices, procedures,
methodologies or methods of Tevva or any of its Subsidiaries or their respective internal
accounting controls, including any complaint, allegation, assertion, or claim that Tevva
or any of its Subsidiaries has engaged in questionable accounting or auditing practices. |
| (j) | Undisclosed
Liabilities. Neither Tevva nor any of its Subsidiaries has any material liabilities or
obligations of any nature, whether or not accrued, contingent, absolute, determined, determinable
or otherwise, required to be disclosed in the liabilities column of a balance sheet prepared
in accordance with IFRS, except for (A) liabilities and obligations that are specifically
presented on the audited consolidated balance sheet of Tevva as of December 31, 2022 (the
“Tevva Balance Sheet”) or disclosed in the notes thereto; (B) those incurred
in the Ordinary Course since the date of the Tevva Balance Sheet and consistent with past
practice; and (C) those incurred in connection with the execution of this Agreement. |
| (i) | Neither
Tevva nor any of its Subsidiaries is insolvent or unable to pay its debts within the meaning
of the Insolvency Act 1986 or any other applicable insolvency legislation or has stopped
paying its debts as they fall due. |
| (ii) | No
step has been taken or proposal made in any applicable jurisdiction to initiate any process
by or under which: |
| (A) | the
ability of the creditors of Tevva or any of its Subsidiaries to take any action to enforce
their debts is suspended, restricted or prevented, including (without limitation) pursuant
to a moratorium under Part A1 of the Insolvency Act 1986; |
| (B) | some
or all of the creditors of Tevva or of any of its Subsidiaries accept, by agreement or
in pursuance of a court order, an amount less than the sums owing to them in satisfaction
of those sums, or make any other compromise or arrangement with Tevva or its Subsidiaries
(including, without limitation, a company voluntary arrangement under Part 1 of the Insolvency
Act 1986, a scheme of arrangement under Part 26 of the CA 2006 or a restructuring plan
under Part 26A of the CA 2006); |
| (C) | a
person is appointed to manage the affairs, business and assets of Tevva or any of its Subsidiaries
on behalf of their creditors; or |
| (D) | the
holder of a charge over any of the assets of Tevva or any of its Subsidiaries is appointed
to control the business and/or any assets of Tevva or any of its Subsidiaries. |
| (iii) | In
relation to Tevva and each of its Subsidiaries: |
| (A) | no
administrator has been appointed; |
| (B) | no
documents have been filed with, and no application has been made to, the court for the appointment
of an administrator; and |
| (C) | no
notice of an intention to appoint an administrator has been given by the relevant company,
its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule
B1 to the Insolvency Act 1986). |
| (iv) | No
petition has been presented or order made for the winding up of Tevva or any of its Subsidiaries,
no resolution has been passed or proposed for the winding up of Tevva or any of its Subsidiaries
and no other process has been initiated which could lead to Tevva or any of its Subsidiaries
being wound up or its assets being distributed among its creditors, shareholders or other
contributors or Tevva or any of its Subsidiaries being dissolved. |
| (v) | No distress,
execution or other process has been commenced, levied or enforced on, and no creditor or
encumbrancer has taken possession or control of, any goods or assets of Tevva or any of its
Subsidiaries. |
| (vi) | No
event has occurred, and no proceedings have been taken, in relation to Tevva or any of its
Subsidiaries in any jurisdiction other than the UK, which has an effect equivalent or similar
to any of the matters referred to in paragraph (iii) to paragraph (v) (inclusive)
above. |
| (l) | Real
Property and Personal Property. |
| (i) | Neither
Tevva nor its Subsidiaries own, use or occupy any real property or hold an ownership interest
in any real property, or have owned or held such ownership interest in the past five years,
save and except as set out in the Tevva Disclosure Letter (the “Tevva Owned Real
Property”). |
| (ii) | Neither
Tevva nor its Subsidiaries use, occupy or lease any real property, hold a leasehold interest
in any real property, or have a licence to use or occupy any real property save and except
as set out in the Tevva Disclosure Letter (the “Tevva Leased Real Property”). |
| (iii) | Tevva
and its Subsidiaries are solely legally and beneficially entitled to, and have good, valid
and marketable title to, or a valid and enforceable interest and tenure (whether a leasehold,
licenced or otherwise) in, the Tevva Owned Real Property and Tevva Leased Real Property,
as applicable, including in and to the fixtures thereto (collectively, the “Tevva
Real Property”). |
| (iv) | Neither
Tevva nor its Subsidiaries has sub-leased, licensed or otherwise granted to, or agreed to
sub-lease, licence or grant to, any person the right to use or occupy any Tevva Leased Real
Property. |
| (v) | Tevva
and its Subsidiaries, as applicable, enjoy exclusive, peaceful, and quiet possession of the
Tevva Leased Real Property in accordance with the terms of the lease thereof. With respect
to each such lease: (A) it is valid and binding on, and enforceable against, Tevva or its
Subsidiary that is a party to such lease, as applicable, and, to the knowledge of Tevva,
the counterparties thereto, in each case in accordance with its terms subject only to any
limitation under bankruptcy, insolvency or other law affecting the enforcement of creditors’
rights generally and the discretion that a court may exercise in the granting of equitable
remedies such as specific performance and injunction (details of any such limitations, if
known, are disclosed in the Tevva Disclosure Letter); (B) it is in full force and effect;
(C) Tevva or the applicable Subsidiary of Tevva has paid all rents and additional rents and
other sums, expenses and charges due and payable by it thereunder; (D) Tevva or the applicable
Subsidiary has performed all material obligations imposed on it under such lease and there
exists no default or breach under such lease by Tevva or the applicable Subsidiary or, to
the knowledge of Tevva, by any other party thereto; (E) no event has occurred which, whether
now or after the giving of notice, with lapse of time or both, would constitute or reasonably
be expected to become a default or breach by Tevva or the applicable Subsidiary, as the case
may be; (F) to the knowledge of Tevva, there are no outstanding claims of breach or indemnification
or notice of default or termination thereunder; and (G) neither Tevva nor the applicable
Subsidiary, nor any counterparty has exercised early termination options, if any, under such
lease. Tevva and its Subsidiaries, as applicable, have timely paid all rent and other sums
due and payable under the lease(s) for the Tevva Leased Real Property. |
| (vi) | The
Tevva Real Property is in a state of maintenance and repair in all material respects adequate
and suitable for the purposes for which it is presently being used and, to the knowledge
of Tevva, there are no material repair or restoration works likely to be required in connection
with such Tevva Real Property. |
| (vii) | The
Tevva Real Property is used in connection with the business of Tevva and its Subsidiaries
only. |
| (viii) | Tevva
and its Subsidiaries own, lease or licence all personal property (including all assets, equipment,
plant, inventory, machinery, vehicles, office and other
equipment) as is necessary for them to conduct their business as presently conducted
(collectively, the “Tevva Personal Property”), and Tevva and its Subsidiaries
have good and valid title to, or a valid and enforceable interest (whether a leasehold interest
or otherwise) in, all of such Tevva Personal Property. |
| (ix) | The
Tevva Disclosure Letter lists each item of Tevva Personal Property owned by Tevva and its
Subsidiaries which had a book value of more than $150,000 as of the date of the most recent
Tevva Financial Statement or is otherwise material to the business of Tevva and its Subsidiaries,
taken as a whole. |
| (x) | No Tevva
Personal Property owned by Tevva or its Subsidiaries is in the possession of a third party
or is on consignment. |
| (xi) | Each
item of Tevva Personal Property owned by Tevva or its Subsidiaries which has a book value
in excess of $150,000 is in good operating condition and repair, ordinary wear and tear excepted,
and is suitable and adequate for the purpose for which it is being used. |
| (xii) | There
are no letters of claim, letters before action, notices or Proceedings pending or outstanding
or, to the knowledge of Tevva, threatened against or affecting any of the Tevva Real Property
or Tevva Personal Property and neither Tevva nor its Subsidiaries are aware of any matter
which could lead to any claim, action or Proceeding being issued or made. |
| (xiii) | No
person has any right of first refusal, option, contractual obligation, undertaking or commitment
or any other legal or equitable right, interest, estate or privilege capable of becoming
such, to purchase any of the Tevva Real Property (or any portion thereof or interest therein)
or any of the material assets owned or leased or otherwise held by Tevva or its Subsidiaries,
or any part thereof or interest therein, except in connection with the Arrangement. |
| (xiv) | No
material breaches of any covenant or other obligation by any party affecting title to any
Tevva Real Property are outstanding or would entitle any third party to exercise a right
of entry to, or take possession of, any Tevva Real Property. |
| (xv) | There
are no disputes regarding boundaries, easements, covenants or other matters relating to any
of the Tevva Real Property. |
| (xvi) | The
current uses of the Tevva Real Property are lawful and valid under all applicable UK planning
acts, laws, orders and regulations and any permission authorizing such uses are unconditional
and permanent or, if subject to conditions, all conditions have been satisfied and, in respect
of ongoing conditions, are being complied with. |
| (xvii) | Except
as disclosed in the Tevva Disclosure Letter, all necessary building regulation consents have
been obtained both in relation to the current use of the Tevva Real Property and any alterations
made to them. |
| (xviii) | There
are no claims, liabilities or levies under any planning acts or statutory agreements affecting
the Tevva Real Property. All required consents and approvals (whether from any local authority,
Governmental Entity or any landlord or licensor) have been obtained in respect of the development
of, the current use of and any dealing with the Tevva Real Property and any alteration, extension
or other improvement thereof. |
| (xix) | Neither
Tevva nor its Subsidiaries has any right of ownership, right of use, option, right of first
refusal or contractual obligation to purchase or any other legal or equitable right, interest
in, or affecting any land and buildings other than the Tevva Real Property. |
| (xx) | Neither
Tevva nor its Subsidiaries has any actual or contingent liability in respect of any land
and buildings which were previously owned, occupied or used by either Tevva or its Subsidiaries,
but no longer are. |
| (xxi) | Tevva
has provided and disclosed to EMV all title deeds and material documents and consents, of
which it is aware, ancillary to any lease or register of title in connection with the Tevva
Real Property. |
| (xxii) | Where
title to any of the Tevva Real Property is not registered at HM Land Registry, there is no
caution against first registration of title and no event has occurred in consequence of which
a caution against first registration could have been effected, and all applications for registration
have been made within the requisite timeframe and within the priority period afforded by
a HM Land Registry official search. Tevva has responded promptly and properly to any requisitions
raised by HM Land Registry in connection with such applications. |
| (xxiii) | There
are, appurtenant to all Tevva Real Property, all rights and easements necessary for their
use and enjoyment in connection with the business of Tevva and its Subsidiaries as presently
conducted. |
| (xxiv) | Except
as disclosed in the Tevva Disclosure Letter, all Tevva Real Property is free from any mortgage,
debenture, charge, rent charge, lien or other right in the nature of security. |
| (xxv) | Tevva
has no knowledge of any instance where Tevva, or its Subsidiaries, as the case may be, have
failed and continue to fail to comply with all statutory obligations in respect of the Tevva
Real Property. |
| (xxvi) | Tevva
has no knowledge of any circumstance that could render any transaction affecting the title
of Tevva or any of the Subsidiaries to any of the Tevva Real Property liable to be set aside
under the Insolvency Act 1986. |
| (xxvii) | There
are no insurance policies relating to an issue of title affecting any of the Tevva Real Property
of which Tevva or the Subsidiaries are aware. |
| (xxviii) | To
the best of Tevva’s knowledge, the Tevva Real Property is not subject to any matters
which are unregistered interests which override dispositions under Schedule 3 to the Land
Registration Act 2002 or (where title to any Tevva Real Property is not registered) which
are unregistered interests which override first registration under Schedule 1 to the Land
Registration Act 2002. |
| (xxix) | Tevva
has no knowledge of any development works, redevelopment works or fitting out works outstanding
in respect of any of the Tevva Real Property. |
| (m) | Personal
Property Leases. The Tevva Disclosure Letter lists all the Tevva Personal Property Leases
and identifies those which cannot be terminated by Tevva or its Subsidiary that is a party
thereto without liability at any time upon less than 90 days’ notice or which involve
payment by Tevva or its Subsidiary that is a party thereto in the future of more than $150,000.
Each such Tevva Personal Property Lease is in full force and effect and has not been amended,
and Tevva is entitled to the full benefit and advantage of each Tevva Personal Property Lease
in accordance with its terms. To the knowledge of Tevva, each such Tevva Personal Property
Lease is in good standing and there has not been any material default by Tevva, as applicable,
or, to the knowledge of Tevva, any other party under any Tevva Personal Property Lease nor
any dispute between Tevva and any other party under any such Tevva Personal Property Lease. |
| (n) | Compliance
with laws and UK NSIA. |
| (i) | Tevva
and each of its Subsidiaries is, and has been, in compliance in all material respects with
applicable law, other than acts of non-compliance or violations which would not, individually
or in the aggregate, have a Material Adverse Change in respect of Tevva. |
| (ii) | Neither
Tevva nor any of its Subsidiaries has completed a transaction that has taken place on or
after November 12, 2020, or is currently in progress (save in relation to any transactions
contemplated by this Agreement), and which constitutes a trigger event within the meaning
of section 5 of the National Security and Investment Act 2021. |
| (iii) | Where
Tevva has purchased, redeemed, reduced, forfeited or repaid any of its own share capital,
it has done so in accordance with all applicable laws and the provisions of its Constating
Documents. |
| (iv) | Neither
Tevva nor any of its Subsidiaries have received any written notice of any Proceeding relating
to any violation of any applicable laws, except where such violation has not been and would
not be material to the business of Tevva and its Subsidiaries, taken as a whole. |
| (v) | Tevva
and its Subsidiaries maintain a program of policies, procedures and internal controls reasonably
designed and implemented to provide reasonable assurance that violation of applicable laws
by any of Tevva’s or its Subsidiaries’ Representatives, or other persons acting
on behalf of Tevva or any of its Subsidiaries, will be prevented, detected and deterred. |
| (o) | Complete
and Accurate Responses. All information provided to EMV (or its agents or advisors) by
Tevva (or its agents or advisors) in connection with EMV’s due diligence in relation
to this Agreement is complete and accurate in all material respects and is not misleading
in any material respect, whether by way of omission or otherwise. |
| (p) | Finder’s
Fees; Commission. Except as disclosed in the Tevva Disclosure Letter, no investment banker,
broker, finder, financial advisor or other intermediary has been retained by or is authorized
to act on behalf of Tevva, the Tevva Board, or any of its Subsidiaries, or any of their respective
officers, directors or employees, or is entitled to any fee, commission or other payment
from Tevva or any of its Subsidiaries, or any of their respective Representatives, in connection
with this Agreement or the transactions contemplated by this Agreement. |
| (q) | Tevva
Board. The Tevva Board, after consultation with its financial and legal advisors, has:
(i) determined that the Consideration to be received by the Tevva Shareholders pursuant to
the Arrangement and the other transactions contemplated by this Agreement is fair to such
holders and that the Arrangement is in the best interests of Tevva and the Tevva Shareholders;
(ii) resolved to recommend that the Tevva Ordinary Shareholders vote in favour of the Tevva
Transaction Resolutions; and (iii) authorized the entering into of this Agreement and the
performance by Tevva of its obligations under this Agreement, and no action has been taken
to amend, or supersede such determinations, resolutions, or authorizations. Each of the Tevva
Locked-Up Shareholders has advised Tevva that they will vote or cause to be voted all Tevva
Shares beneficially held by them in favour of the Tevva Transaction Resolutions and each
has entered into a Tevva Voting Support Agreement with EMV. |
| (r) | Litigation.
There is no Proceeding against or involving Tevva or any of its Subsidiaries or any of their
respective properties or assets or any person for whose
acts Tevva or any of its Subsidiaries may be vicariously liable pending or, to the
knowledge of Tevva, threatened and, to the knowledge of Tevva, no event has occurred, or
state of facts exists, which would reasonably be expected to give rise to any such Proceeding,
in each case which, if adversely determined, would reasonably be expected to have a Material
Adverse Change in respect of Tevva. |
| (s) | Employment
and Pension Matters. |
| (i) | Tevva
and its Subsidiaries are in compliance with all applicable laws respecting employment and
employment practices, terms and conditions of employment, employment/labour standards, wages
and hours, immigration, privacy, workers compensation and occupational health and safety
and has not received any notice (written or oral) of infraction of any such applicable employment-related
laws or of any claim or any investigation thereof. |
| (ii) | All
Tevva Employees are legally entitled to work for Tevva (or any of its Subsidiaries) in the
jurisdiction in which they work, and all foreign workers employed by Tevva (or any of its
Subsidiaries) have valid work permits permitting them to perform the work they are carrying
out for Tevva (or any of its Subsidiaries). Tevva and its Subsidiaries have complied
with all applicable immigration laws in connection with any Tevva Employees who are not permanent
residents or citizens in the jurisdiction in which they work, and there are no audits, orders,
investigations, charges or claims pending or, to the knowledge of Tevva, threatened or reasonably
anticipated against Tevva or any of its Subsidiaries in connection with any immigration laws. |
| (iii) | The
Tevva Disclosure Letter lists all the Tevva Employees and Tevva Workers as of the date of
this Agreement and the position, type of contract whether full or part time, commencement
date of each contract with Tevva or its Subsidiaries (and if a Tevva Employee, the date on
which their continuous service began), length of notice necessary to terminate each contract
(or if a fixed term, the expiry date of the fixed term), their age, principal location of
employment, base salary, or hourly wage rate, bonus and commission and other incentives and
variable compensation, work permit status (if any) and expiry date, and leave status of each
Tevva Employee (including reason for leave, last date of active service, and their expected
date of return to work). Except as disclosed in the Tevva Disclosure Letter, no Tevva Employee
or Tevva Worker is receiving benefits or statutory leave under any applicable laws. |
| (iv) | The
Tevva Disclosure Letter lists details of any person who is not a Tevva Employee or a Tevva
Worker and who provides services to Tevva or any of its Subsidiaries under an agreement that
is not a contract of employment with Tevva or the relevant Subsidiary (including where the
individual acts as a consultant via a Personal Service Company or is on secondment from another
employer) and the particulars of the terms on which the individual provides services, including
the commencement date of each contract with Tevva or its Subsidiary, the length of notice
necessary to terminate each contract (or if a fixed term, the expiry date of the fixed term,
location in which they provide services and their remuneration). |
| (v) | The
Tevva Disclosure Letter includes copies of all template contracts used to employ or engage
any Tevva Employee or Tevva Worker (together with details of any terms that are materially
different from the template contracts provided) and all handbooks, policies and other documents
which apply to any Tevva Employee or Tevva Worker. |
| (vi) | In
respect of any person who provides services to Tevva or any of its Subsidiaries under an
agreement that is not a contract of employment with Tevva or the relevant Subsidiary (including
where the individual acts as a consultant via a Personal Service Company or is on secondment
from another employee) Tevva and its Subsidiaries have obtained all necessary assignments,
undertakings and transfers to ensure that such person is party to the same confidentiality
and intellectual property obligations as are set out within such agreement. |
| (vii) | In
respect of each Tevva Employee and Tevva Worker, Tevva and its Subsidiaries have: |
| (A) | performed
all obligations and duties they are required to perform (and settled all outstanding claims),
whether or not legally binding; and |
| (B) | maintained
adequate, suitable and up-to-date records. |
| (viii) | There
are no sums owing to any current or former Tevva Employee or Tevva Worker other than reimbursement
of expenses, wages for the current salary period and holiday pay for the current holiday
year. |
| (ix) | There
are no loans to any current or former director of Tevva or its Subsidiaries or Tevva Employee
or Tevva Workers (or to any nominees or associates of such directors or Tevva Employees)
made or arranged by Tevva, any of its subsidiaries or any employee benefit trust (or similar
arrangement) established by Tevva or its Subsidiaries |
| (x) | None
of Tevva nor any of its Subsidiaries is a party to or bound by any Contract with any director,
officer or employee of Tevva or any of the Subsidiaries of Tevva that includes any termination,
length of notice or pay in lieu of notice clause which provides for more than three months’
notice pay. |
| (xi) | None
of Tevva nor any of its Subsidiaries is a party to or bound by any Contract with any director,
officer or employee of Tevva or any of its Subsidiaries that includes any clauses in relation
to severance, job security or similar provisions (other than such as results by law from
the employment of an employee without an agreement as to notice or severance), nor are there
any change of control payments, golden parachutes, severance payments, retention payments,
Contracts or other agreements with current or former directors, officers or employees providing
for cash or other compensation or benefits of any nature upon the consummation of, or relating
to, the Arrangement, including a change of control of Tevva. |
| (xii) | Except
as disclosed in the Tevva Disclosure Letter, no Tevva Employee or Tevva Worker will be entitled
to terminate their employment or engagement, or be entitled to any bonus, payment, accelerated
vesting or other benefit as a result of the terms of this Agreement or the transactions contemplated
hereby. |
| (xiii) | Neither
Tevva nor any of its Subsidiaries is a party, either directly or by operation of law, to
any collective agreement. No trade union, council of trade unions, employee bargaining agency
or affiliated bargaining agent holds bargaining rights with respect to any Tevva Employees
by way of certification, interim certification, voluntary recognition, related employer or
successor employer rights, or, to the knowledge of Tevva, has applied or threatened to apply
to be certified as the bargaining agent of any of the Tevva Employees. To the knowledge of
Tevva, (A) there have been no actual or threatened and there are no pending union organizing
activities involving the Tevva Employees or Tevva Workers and (B) neither Tevva nor any of
its Subsidiaries has any labour problems that might adversely affect the business of Tevva
and its Subsidiaries or lead to an interruption of operations. |
| (xiv) | Except
as disclosed in the Tevva Disclosure Letter, no Tevva Employee or Tevva Worker has given
or received notice of termination of their employment or engagement and, so far as Tevva
is aware, no Tevva Employee or Tevva Worker intends or is likely to terminate such employment
or engagement as a result of the Parties entering into this Agreement or the transactions
contemplated hereby. |
| (xv) | Except
as disclosed in the Tevva Disclosure Letter, no Tevva Employee or Tevva Worker is subject
to a current disciplinary warning or procedure. |
| (xvi) | No
dispute under any UK Employment Laws or otherwise is outstanding between Tevva or any of
its Subsidiaries and any current or former Tevva Employee or Tevva Worker. |
| (xvii) | No
questions have been submitted to Tevva or any of its Subsidiaries by a Tevva Employee or
Tevva Worker in relation to potential claims under equal pay or discrimination legislation
that remain unanswered in full or in part. |
| (xviii) | Every
Tevva Employee or Tevva Worker who requires permission to work in the UK has current and
appropriate permission to work in the UK. |
| (xix) | Except
as disclosed in the Tevva Disclosure Letter, no offer of employment or engagement has been
made by Tevva or any of its Subsidiaries that has not yet been accepted, or that has been
accepted but where the employment or engagement has not yet started. |
| (xx) | All
contracts between Tevva or any of its Subsidiaries and its or their directors and officers,
Tevva Employees or Tevva Workers comply with any relevant requirements of section 188 of
the Companies Act 2006. |
| (xxi) | Neither
Tevva nor its Subsidiaries is a party to, bound by or proposing to introduce in respect of
any of its directors or the Tevva Employees or Tevva Workers any redundancy payment scheme
in addition to statutory redundancy pay, nor is there any agreed procedure for redundancy
selection. |
| (xxii) | In
the period of ten years preceding the date of this Agreement, neither Tevva nor any of its
Subsidiaries (nor any predecessor or owner of any part of their respective businesses) has
been a party to a relevant transfer for the purposes of the Transfer of Undertakings (Protection
of Employment) Regulations 2006 affecting any Tevva Employee or any other persons engaged
in the business and no event has occurred that may involve such persons in the future being
a party to such a transfer. No such persons have had their terms of employment varied for
any reason as a result of or connected with such a transfer. |
| (xxiii) | Neither
Tevva nor any of its Subsidiaries has incurred any actual or contingent liability in connection
with: |
| (A) | any
termination of employment of any Tevva Employee (including redundancy payments) or for failure
to comply with any order for the reinstatement or re-engagement of any Tevva Employee; or |
| (B) | a
failure to provide information or to consult with Tevva Employees or Tevva Workers under
any UK Employment Laws. |
| (xxiv) | Neither
Tevva nor any of its Subsidiaries has transferred or agreed to transfer any Tevva Employee
or Tevva Worker from working for Tevva or any of its Subsidiaries or induced any Tevva Employee
or Tevva Worker to resign their employment with Tevva or any of its Subsidiaries. |
| (xxv) | Except
as disclosed in the Tevva Disclosure Letter, neither Tevva nor any of its Subsidiaries has: |
| (A) | in
the last 12 months, altered any of the terms of employment or engagement of any Tevva Employee
or Tevva Worker; or |
| (B) | offered,
promised or agreed to any future variation in the terms of employment or engagement of any
Tevva Employee or Tevva Worker. |
| (xxvi) | Tevva
and its Subsidiaries have afforded all Tevva Employees and Tevva Workers the right to paid
holiday under regulations 13 and 13A of the Working Time Regulations 1998 (WTR 1998)
and have not deterred or prevented any Tevva Employee or Tevva Worker from taking such holiday
whether or not requested. |
| (xxvii) | In
the two years preceding the date of this agreement, in respect of each Tevva Employee and
Tevva Worker, all holiday pay has been calculated and paid in accordance with the WTR 1998
and Directive 2003/88/EC of the European Parliament and of the Council of November 4, 2003
as applicable. |
| (xxviii) | Neither
Tevva nor any of its Subsidiaries has received any material inspection reports under applicable
occupational health and safety legislation relating to Tevva or any of its Subsidiaries in
the past three years. There are no outstanding Orders nor, to the knowledge of Tevva, any
pending or threatened charges made under applicable occupational health and safety legislation
relating to Tevva or any of its Subsidiaries. There have been no fatal or critical accidents
within the last three years which could reasonably be expected to lead to charges involving
Tevva or any of its Subsidiaries under applicable occupational health and safety legislation. |
| (xxix) | Neither
Tevva nor any of its Subsidiaries has any commitment to establish or enter into any new Tevva
Employee Plan, to modify any Tevva Employee Plan or the terms of any Tevva Employee Plan
or to introduce any new cash incentive scheme or arrangement. Tevva has made available to
EMV (A) current, correct and complete copies of all written Tevva Employee Plans, and where
unwritten, a written summary of the current terms of each Tevva Employee Plan, and (B) all
material written Contracts relating to each Tevva Employee Plan, including administrative
service Contracts and group insurance Contracts. Except as would not be reasonably expected
to have a Material Adverse Change on Tevva and its Subsidiaries, taken as a whole, Tevva
and its Subsidiaries have performed all material obligations required to be performed by
them under, are not in default or violation of, and, as of the date hereof, Tevva has no
knowledge of any default or violation by any other party to, any Tevva Employee Plan, and
each Tevva Employee Plan has been established and has been and is maintained and administered
in accordance with its terms and in compliance with all applicable laws. There are no claims
pending or, to the knowledge of Tevva, threatened or reasonably anticipated (other than routine
claims for benefits) against any Tevva Employee Plan or against the assets of any Tevva Employee
Plan, other than as would not be expected to have a Material Adverse Change on Tevva and
its Subsidiaries, taken as a whole. For the purposes of this Section (xxix), “Tevva
Employee Plan” means Tevva’s (and its Subsidiaries’) health and other
medical benefit plans, including medical or dental treatment or expenses, life and other
insurance including accident insurance, vision, legal, long-term and short-term disability. |
| (xxx) | The
Pension Scheme is the only arrangement under which Tevva or any of its Subsidiaries has or
may have any obligation (whether or not legally binding) to provide or contribute towards
pension, lump-sum, death, ill-health, disability or accident benefits in respect of its past
or present officers and employees (“Pensionable Employees”). No proposal
or announcement has been made to any Tevva Employee or Tevva Worker or officer of Tevva or
any of its Subsidiaries as to the introduction, continuance, increase or improvement of,
or the payment of a contribution towards, any other pension, lump-sum, death, ill-health,
disability or accident benefit. |
| (xxxi) | Full
details of the Pension Scheme are set out in the Tevva Disclosure Letter, including: |
| (A) | copies
of all documents governing the Pension Scheme and of any related announcements and explanatory
booklets; and |
| (B) | an
anonymised list of all Pensionable Employees who are members of the Pension Scheme with all
details relevant to their membership and necessary to establish their entitlements under
the Pension Scheme. |
| (xxxii) | The
documents listed above contain full details of all benefits payable in respect of the Pensionable
Employees under the Pension Scheme (including any benefits payable to any Pensionable Employee
on early retirement or redundancy under the Pension Scheme, or any previous scheme of which
the Pensionable Employee was a member). No power to increase those benefits or to provide
different benefits has been exercised, and there are no circumstances in which there is a
practice of exercising such a power under the Pension Scheme. |
| (xxxiii) | Tevva
and its Subsidiaries have complied with their automatic enrolment obligations as required
by the Pensions Act 2008 (PA 2008) and associated legislation. No notices, fines,
or other sanctions have been issued by the Pensions Regulator and no instances of non-compliance
with the automatic enrolment obligations have been notified to the Pension Regulator in respect
of Tevva or any of its Subsidiaries. Full details of this compliance are set out in the Tevva
Disclosure Letter including details of any Tevva Employees who have opted out and copies
of any opt-out letters in respect of those Tevva Employees. |
| (xxxiv) | All
contributions, insurance premiums, tax and expenses due to and in respect of the Pension
Scheme have been duly paid. There are no liabilities outstanding in respect of the Pension
Scheme at the date of this agreement. The contributions in respect of the Pension Scheme
have been paid at the rates set out in the most recent schedule of contributions or the most
recent payment schedule. The Tevva Disclosure Letter contains details of the rates at which
contributions to the Pension Scheme are being paid and how they are calculated, and whether
they are paid in advance or in arrears. |
| (xxxv) | Each
Tevva Employee Plan that provides death, disability, health or other medical benefits is
fully insured by an insurance policy with an insurer of good repute. Tevva is not aware of
any reason why these policies might be invalidated, or why the insurer might try to set them
aside. No Tevva Employee Plan is self-insured or administered on an administrative services
only (ASO) basis. |
| (xxxvi) | No
contribution notice or financial support direction under the Pensions Act 2004 has
been issued to Tevva, any of its Subsidiaries or to any other person in respect of Pension
Scheme and there is no fact or circumstance likely to give rise to any such notice or direction. |
| (xxxvii) | The
Pension Scheme is a registered pension scheme for the purposes of Chapter 2 of Part 4 of
the Finance Act 2004 and there is no reason why HM Revenue & Customs might de-register
the scheme. |
| (xxxviii) | No
claims or complaints have been made or are pending or threatened in relation to the Pension
Scheme or otherwise in respect of the provision of (or failure to provide) pension, lump-sum,
death, ill-health, disability or accident benefits by Tevva or its Subsidiaries in relation
to any of the Pensionable Employees. There are no facts or circumstances likely to give rise
to such claims or complaints. |
| (xxxix) | None
of the Pension Schemes is a defined benefit pension scheme. |
| (xl) | No
Tevva Employee Plan provides health insurance, life insurance or death benefits to current
or former employees of Tevva beyond their retirement or other termination of service (including
to the spouses, beneficiaries, dependents or survivors of such individuals), other than as
required under applicable laws including during any statutory or contractual severance or
notice period. |
| (xli) | No
Tevva Employee Plan is, and Tevva does not sponsor, administer or contribute to a (i) “registered
pension plan” as defined in subsection 248(1) of the Tax Act; (ii) a “retirement
compensation arrangement” as defined in subsection 248(1) of the Tax Act; (iii) an
“employee life and health trust” as such term is defined in subsection 248(1)
of the Tax Act; (iv) a “health and welfare trust” within the meaning of
Canada Revenue Agency Income Tax Folio S2-F1-C1; or (v) a “salary deferral arrangement”
as such term is defined in subsection 248(1) of the Tax Act. |
| (xlii) | The
administrator of each Tevva Employee Plan is in possession of all documents and employee
data necessary to administer the Tevva Employee Plan in accordance with its terms and applicable
law, and such data is complete, correct and in a form that is sufficient for the proper administration
of the Tevva Employee Plan. |
| (i) | Tevva
and each of its Subsidiaries has: (A) duly and timely filed, or caused to be filed, with
the required Governmental Entity all Tax Returns required to be filed by it pursuant to applicable
law prior to the date hereof, including but not limited to all United Kingdom Tax Returns
for Tevva’s 2021 and 2022 tax years and all such Tax Returns are true and correct in
all material respects; (B) paid on a timely basis all Taxes and all assessments and reassessments
of Taxes required to have been paid to any Governmental Entity pursuant to applicable law
due on or before the date hereof, other than Taxes not yet due and payable and, to the extent
disclosed in the Tevva Disclosure Letter, Taxes which are being or have been contested in
good faith and in respect of which adequate reserves have been provided in the Tevva Financial
Statements; (C) duly and timely withheld, or caused to be withheld, all Taxes and other amounts
required by law to be withheld by it (including Taxes and other amounts required to be withheld
by it in respect of any amount paid or credited or deemed to be paid or credited by it to
or for the account of any person, including any employees, officers or directors and any
non-resident person) and duly and timely paid or remitted, or caused to be paid or remitted,
to the appropriate Governmental Entity such Taxes and other amounts required by law to be
paid or remitted by it, except to the extent that such failure has or would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Change in respect
of EMV, Tevva, Holdco, Parentco or the Resulting Issuer; and (D) maintained in their possession
and control complete and accurate records, invoices, elections, statements and other information
in relation to Tax that meet all legal requirements and enable their Tax liabilities to be
calculated accurately in all material respects. |
| (ii) | All
Taxes due and owing by Tevva and each of its Subsidiaries, in each instance whether or not
shown as due on any Tax Return, have been timely paid. No written claim has ever been made
by any Governmental Entity where Tevva or its Subsidiaries do not file Tax Returns that such
person is subject to taxation in, or required to file Tax Returns in, such jurisdiction. |
| (iii) | All
Taxes payable by Tevva or any of its Subsidiaries that are not yet due have been adequately
reserved for in the Tevva Financial Statements. |
| (iv) | There
are no Encumbrances for Taxes upon (A) any assets of Tevva or any of its Subsidiaries, and/or
(B) any equity securities of Tevva or its Subsidiaries. |
| (v) | There
are no outstanding elections, agreements, arrangements or waivers in respect of which Tevva
or any of its Subsidiaries are a party extending the statutory period or providing for an
extension of time with respect to the assessment or reassessment of any Taxes of, or the
filing of any Tax Return or any payment of any Taxes by, Tevva or any of its Subsidiaries. |
| (vi) | The
Tevva Shares are not “taxable Canadian property” for purposes of the Tax Act. |
| (vii) | None
of Tevva, its Subsidiaries, or the Resulting Issuer will be required to include any item
of income in, or exclude any item of deduction from, taxable income for any taxable period
(or portion thereof) ending after the Effective Date as a result of any: (A) change in method
of accounting or use of an improper method of accounting, in each instance relating to transactions
entered into or undertaken by Tevva or its Subsidiaries, or accounting methods employed by
Tevva or its Subsidiaries, in each instance prior to the Effective Time, (B) settlement arrangements,
closing arrangement, or agreement regarding the resolution of any Tax matter with any Governmental
Entity, which arrangement or agreement was executed on or prior to the Effective Date by
Tevva or any of its Subsidiaries, (C) intercompany transaction involving Tevva or its Subsidiaries
that occurred or was reported on or prior to the Effective Date, (D) installment sale or
open transaction disposition or arrangement made by Tevva or its Subsidiaries on or prior
to the Effective Date, (E) prepaid amount received by Tevva or its Subsidiaries on or prior
to the Effective Date, or (F) election made by Tevva or its Subsidiaries pursuant to any
Tax Law. |
| (viii) | Tevva
and each of its Subsidiaries is and has always been resident for Tax purposes in the United
Kingdom, has not, at any time, been treated as resident in any other jurisdiction for the
purposes of any double taxation arrangements or for any other tax purpose, has not had a
permanent establishment, or been liable to register or account for Tax, in any other jurisdiction. |
| (ix) | No
employment related securities (as defined in sections 420 and 421B(8) of the Income Tax
(Earnings and Pensions Act 2003) (“ITEPA 2003”)) have been issued
or transferred (other than the Tevva Options) and there are no agreements, schemes or promises
to make any such issues or transfers by, or under arrangements established by, Tevva or any
of its Subsidiaries or any other party, to any current, former or proposed employees or directors
of Tevva or any of its Subsidiaries (or to associates of such employees or directors). |
| (x) | No securities
options (as defined in section 420(8) of ITEPA 2003) (other than the Tevva Options) have
been granted to any current, former or proposed employees or directors of Tevva or any of
its Subsidiaries (or to any nominees or associates of such employees or directors) and there
are no agreements, schemes or promises to make any such grant. |
| (xi) | No
liability of Tevva or any of its Subsidiaries to account for PAYE, income tax, national insurance
contributions or apprenticeship levy (or equivalent liabilities in any other jurisdiction)
will arise on the exercise of the Tevva Options or the disposal of the shares acquired on
the exercise of the Tevva Options to Holdco. |
| (u) | Transactions
with Affiliates. Other than those agreements listed in the Tevva Disclosure Letter,
none of the Tevva Shareholders, any affiliate of any Tevva Shareholder, any officer, director
or affiliate of Tevva and any immediate family member of any of the foregoing persons is
a party to or beneficiary of any Contract or transaction with Tevva or its Subsidiaries or
has any interest in any property used or owned by Tevva or its Subsidiaries. |
| (i) | Tevva
maintains on behalf of itself and its Subsidiaries fire (with extended risk and casualty
coverage), general liability, use and occupancy and other forms of insurance with reputable
and sound insurers covering its property and assets in the jurisdiction of the United Kingdom
and protecting the business in such amounts and against such losses and claims as are generally
maintained for comparable businesses and properties. The Tevva Disclosure Letter sets forth
and describes all insurance policies currently maintained by Tevva and its Subsidiaries.
Each such insurance policy is valid and subsisting and in good standing, all premiums due
thereunder have been paid, no notice of cancellation, nonrenewal or termination has been
received by Tevva or any of its Subsidiaries with respect to any such policy, there is no
default thereunder or event that, with or without the passage of time or the giving of notice
or both, would constitute noncompliance with, or a default under, any such policy or entitle
any insurer to terminate or cancel any such policy, and Tevva and/or one or more of its Subsidiaries
is entitled to all rights and benefits thereunder. |
| (ii) | There
are no pending claims under any of such insurance policies and no recent inspection reports,
if any, received from insurance underwriters as to the condition or insurance value of the
insured property and assets. Neither Tevva nor any of its Subsidiaries has failed to give
any notice or present any claim under any of such insurance policies in due and timely fashion.
To the knowledge of Tevva, there are no circumstances which might entitle Tevva or its Subsidiaries
to make a claim under any of such insurance policies or which might be required under any
of such insurance policies to be notified to the insurers. |
Since January 1, 2021 and except as disclosed in the Tevva
Disclosure Letter:
| (i) | other
than the transactions contemplated in this Agreement, Tevva and each of its Subsidiaries
has conducted their respective business only in the Ordinary Course; |
| (ii) | there
has not been any event, circumstance or occurrence which has had, or is reasonably likely
to give rise to, individually or in the aggregate, a Material Adverse Change in respect of
Tevva; |
| (iii) | except
for Ordinary Course adjustments to employees (other than directors or officers), there has
not been any material increase in the salary, bonus, or other remuneration payable to any
officer or executive employees of any of Tevva or any of its Subsidiaries; |
| (iv) | there
has not been any redemption, repurchase or other acquisition of Tevva Shares by Tevva, or
any declaration, setting aside or payment of any dividend or other distribution (whether
in cash or otherwise) with respect to the Tevva Shares; and |
| (v) | there
has not been any entering into, or an amendment of, any Material Contract of Tevva, other
than in the Ordinary Course. |
| (x) | Tevva
Material Contracts. |
| (i) | The
Tevva Disclosure Letter contains material details of each Material Contract of Tevva and
its Subsidiaries. |
| (ii) | Each
Material Contract of Tevva and its Subsidiaries, is legal, valid, binding and in full force
and effect and is enforceable by Tevva or a Subsidiary of Tevva, as applicable, and, to the
knowledge of Tevva, each counterparty thereto, in accordance with its terms and is the product
of fair and arms’ length negotiations between each of the parties to such Material
Contract of Tevva and its Subsidiaries. |
| (iii) | Tevva
and each of its Subsidiaries have performed in all material respects all respective obligations
required to be performed by them to date under the Material Contracts of Tevva and its Subsidiaries
and neither Tevva nor any of its Subsidiaries nor, to the knowledge of Tevva, any other party
to any Material Contract, is in breach or default under any such Material Contract, nor does
Tevva have knowledge of any condition that with the passage of time or the giving of notice
or both would result in such a breach or default. |
| (iv) | Neither
Tevva nor any of its Subsidiaries knows of, or has received any notice (whether written or
oral) of, any breach or default under nor, to the knowledge of Tevva, does there exist any
condition which with the passage of time or the giving of notice or both would result in
a breach or default of any Material Contract by any other party to a Material Contract of
Tevva or its Subsidiaries. |
| (v) | Neither
Tevva nor its Subsidiaries has received any notice (whether written or oral) that any party
to a Material Contract of Tevva or its Subsidiaries intends to cancel, terminate or otherwise
modify or not renew its relationship with Tevva or any of its Subsidiaries, and, to the knowledge
of Tevva, no such action has been threatened. |
| (vi) | Provided
the Tevva Key Consents are obtained, no party to a Material Contract of Tevva or its Subsidiaries,
other than a Contract listed in the Tevva Disclosure Letter, is entitled to terminate or
amend such Material Contract in connection with or as a result of, or is otherwise entitled
to a payment in connection with, the Arrangement, the Holdco Share Transfer or the transactions
contemplated by this Agreement. |
| (vii) | To
the knowledge of Tevva, any orders agreed to by Tevva under the Material Contracts have either
been fulfilled or are in the process of being fulfilled and shall not be affected by the
Arrangement. |
| (viii) | To
the knowledge of Tevva, Tevva has not agreed to indemnify any third party in respect of any
issue other than those contained in the Material Contracts. |
| (y) | Environmental
Matters. |
| (i) | Tevva
and its Subsidiaries are and, except for matters that have been fully resolved with no continuing
or future liabilities (and details of any resolved material matters have been disclosed in
the Tevva Disclosure Letter), have been, in compliance in all material respects with all
Environmental Laws and neither Tevva nor its Subsidiaries have received any enforcement,
prohibition, stop, remediation, improvement or any other notice from, or been subject to
any civil sanction imposed by, any enforcement authority with regard to any breach of Environmental
Laws or in connection with any Hazardous Substances. There has been no material release of
any Hazardous Substances by Tevva or its Subsidiaries at, in, on or under any Tevva Real
Property or in connection with Tevva’s and its Subsidiaries’ operations off-site
of the Tevva Real Property. |
| (ii) | There
have been no claims, investigations, prosecutions or other proceedings threatened against
Tevva or any Subsidiaries or any of their respective directors, officers or employees in
respect of the breach of any Environmental Laws or in connection with any Hazardous Substances
arising from their use of the Tevva Real Property. |
| (iii) | All
permits required in connection with Environmental Laws in connection with the Tevva Real
Property have been obtained and are in full force and effect and there are no facts or circumstances
that may lead to the revocation, suspension, variation or non-renewal of any such permits
and there are no conditions of such permits which require or are likely to require any material
expenditure. |
| (iv) | There
are no Hazardous Substances at, on or under, nor have any Hazardous Substances been emitted,
escaped or migrated from, any of the Tevva Real Properties. |
| (v) | Neither
Tevva nor its Subsidiaries has given any warranties or indemnities or entered into any other
agreement in respect of any liabilities, duties or obligations that arise under Environmental
Laws. |
| (z) | Money
Laundering; Anti-Terrorism; Anti-Corruption. |
| (i) | In this
Section (z), “Associated
Person” means,
in relation to a company, a person (including an employee, agent or subsidiary) who performs
or has performed services for or on behalf of that company. |
| (ii) | None
of Tevva, its Subsidiaries nor, to the knowledge of Tevva, any Representative thereof, has
made any unlawful contribution or other payment to any official of, or candidate for, any
federal, state, provincial or foreign office, failed to disclose fully any contribution,
or otherwise not been in compliance with applicable laws in all applicable jurisdictions
related to anti-corruption or anti-bribery, including the United States Foreign Corrupt
Practices Act, the Corruption of Foreign Public Officials Act (Canada) or is in
violation of any other similar law, or made any payment to any foreign or Canadian governmental
officer or official, or other person charged with similar public or quasi-public duties,
other than payments required or permitted by applicable laws. |
| (iii) | Neither
Tevva nor any of its Subsidiaries is or has at any time engaged in any activity, practice
or conduct which would constitute an offence under the Bribery Act 2010. |
| (iv) | No
Associated Person of Tevva or any of its Subsidiaries has bribed another person (within the
meaning given in section 7(3) of the Bribery Act 2010) intending to obtain or retain
business or an advantage in the conduct of business for Tevva and/or any of its Subsidiaries,
and Tevva and each of its Subsidiaries has in place adequate procedures, in line with the
guidance published by the Secretary of State under section 9 of the Bribery Act 2010,
designed to prevent their Associated Persons from undertaking any such conduct. |
| (v) | Neither
Tevva nor any of its Subsidiaries nor any of their Associated Persons is or has been the
subject of any investigation, inquiry or enforcement proceedings by any Governmental Entity
or any governmental, administrative or regulatory body or any customer regarding any offence
or alleged offence under the Bribery Act 2010, and no such investigation, inquiry or proceedings
have been threatened or are pending and there are no circumstances likely to give rise to
any such investigation, inquiry or proceedings. |
| (vi) | Neither
Tevva nor any of its Subsidiaries has been excluded from participation in a public contract
as a result of being convicted of bribery or corruption. |
| (vii) | Neither
Tevva nor any of its Subsidiaries has or may have committed an offence under the Criminal
Finance Act 2017. |
| (viii) | The
Tevva Disclosure Letter contains details of the prevention procedures (as defined in sections
45(3) and 46(4) of the Criminal Finance Act 2017) that Tevva and each of its Subsidiaries
has in place or, if no prevention procedures are in place, evidence of why it is reasonable
for Tevva and each of its Subsidiaries to have no such procedures in place. |
| (ix) | Each
of Tevva and its Subsidiaries currently is and, since January 1, 2020, has been, in compliance
with applicable laws in all applicable jurisdictions related to (A) economic sanctions administered,
enacted or enforced by any Governmental Entity, (B) export controls, (C) anti-money laundering,
including the Money Laundering Control Act of 1986, 18 U.S.C. §§ 1956, 1957, and
any other equivalent or comparable laws of other countries, (D) anti-boycott regulations,
as administered by the U.S. Department of Commerce, and (E) the importation of goods. |
| (x) | Neither
Tevva nor any of its Subsidiaries has received written notice of nor, to the knowledge of
Tevva, any of its Representatives is or has been the subject of, any Proceedings regarding
any offense or alleged offense under any of the laws set forth in Sections (z)(i) or (ii)
(including by virtue of having made any disclosure relating to any offense or alleged offense)
and, to the knowledge of Tevva, there are no circumstances likely to give rise to any such
Proceeding. |
| (aa) | Intellectual
Property. |
| (i) | The
Tevva Disclosure Letter sets forth a complete and correct list of all: (A) applied for or
registered Tevva Owned IP, including all registrations and all pending applications for all,
patents, provisional and patent applications, trademarks, trade names, corporate names, domain
names, social media accounts, and copyrights (the “Tevva Registered Owned IP”);
(B) material unregistered Tevva Owned IP, including all material common law, unregistered
trademarks; and (C) all Material Contracts regarding any Intellectual Property Rights of
any person that are licensed for use by Tevva or any Subsidiary of Tevva in its business
and operations, as presently conducted. |
| (ii) | The
Tevva Registered Owned IP are subsisting and unexpired, and have not been abandoned, cancelled
or challenged by any third party. Except as would not reasonably be expected to, individually
or in the aggregate, have a Material Adverse Change on Tevva, Tevva and each of its Subsidiaries
owns or possesses sufficient and legally enforceable licenses or other rights to all Intellectual
Property and Intellectual Property Rights necessary for the conduct of its business as currently
conducted, free and clear of Encumbrances. |
| (iii) | To
the knowledge of Tevva, Tevva has not received any notice terminating its license to use
any licensed Intellectual Property Rights. |
| (iv) | To
the knowledge of Tevva, all of the Tevva Registered Owned IP are valid and, other than any
Tevva Registered Owned IP comprising applications, enforceable. |
| (v) | To the
knowledge of Tevva, the conduct of the business of Tevva, as currently carried on and proposed
to be carried on, and the Tevva Owned IP, or the use and commercial exploitation thereof,
does not infringe, misappropriate, or otherwise violate any Intellectual Property Rights
of any person. Neither Tevva nor any of its Subsidiaries has received written or oral notice
asserting that Tevva or any of its Subsidiaries has infringed on any Intellectual Property
Rights of any person. To the knowledge of Tevva, no person is infringing, misappropriating,
or otherwise violating the Tevva Owned IP. |
| (vi) | Tevva
has taken all commercially reasonable steps to protect the Tevva Owned IP and use of Intellectual
Property Rights licensed by Tevva comprising confidential information in each case in accordance
with industry practice for companies of a similar size and nature, including but not limited
to carrying out a freedom to operate analysis where necessary, executing any necessary assignment
and paying any license fees. To the knowledge of Tevva, none of the Tevva Owned IP was developed
using funding from the government, universities, or other academic institutions. |
| (vii) | Tevva
is not a party to or bound by any Material Contract or other obligation that limits or impairs
its ability to use, sell, transfer, assign or convey, or that otherwise affects (A) any of
the Tevva Owned IP or (B) any of the Intellectual Property Rights licensed to or used by
Tevva, the loss of which would have a Material Adverse Change on Tevva. Neither Tevva nor
any of its Subsidiaries has granted to any person any right, license or permission to use
all or any portion of, or otherwise encumbered any of its rights in, or to, any of the Tevva
Owned IP. Neither Tevva nor any of its Subsidiaries is obligated to pay any royalties, fees
or other compensation to any person in respect of its use or license of any material Intellectual
Property or Intellectual Property Rights in the operation of its business, other than license,
maintenance or other fees for software paid in the Ordinary Course. |
| (viii) | The
transactions contemplated by this Agreement and the Tevva Transaction Resolutions will not
affect Tevva’s or any of its Subsidiaries’ rights in any Tevva Owned IP, trigger
any additional obligations on Tevva or any of its Subsidiaries, or otherwise adversely affect
Tevva’s or any of its Subsidiaries’ rights to commercialize the Tevva Owned IP. |
| (ix) | To
the knowledge of Tevva, no material confidential information of Tevva or any of its Subsidiaries
has been disclosed to any third party other than pursuant to a confidentiality agreement
pursuant to which such third party agrees to protect such confidential information or otherwise
in accordance with Tevva’s reasonable business practices. |
| (x) | Each
Trade Secret material to Tevva and/or its Subsidiaries is appropriately documented and the
documentation in possession of Tevva and/or its Subsidiaries related to such Trade Secrets
is current, accurate and sufficient in detail and content to identify and explain the Trade
Secrets and allow their full and proper use by Tevva without reliance on the knowledge or
memory of any individual. Tevva has taken reasonable precautions to protect the secrecy,
confidentiality and value of its and its Subsidiaries’ Trade Secrets. Any disclosures
of Trade Secrets have been made under a written agreement which includes contractual provisions
to protect unauthorized disclosure and use of the Trade Secret. No Trade Secret of Tevva
or its Subsidiaries is currently subject to any adverse claim or has been challenged or to
the knowledge of Tevva, threatened in any way. No Trade Secrets of Tevva or its Subsidiaries
are co-owned or jointly-owned with any person. To the knowledge of Tevva, no confidential
or proprietary information owned by any person (other than Tevva, its directors, officers
or employees) has been incorporated into any Trade Secret of Tevva or its Subsidiaries. No
Trade Secret of Tevva or its Subsidiaries is the subject of any escrow or similar arrangement
which may provide the release of such Trade Secrets to persons other than Tevva under any
conditions. |
| (xi) | Tevva
has taken commercially reasonable measures to ensure that confidential information of Tevva
and its Subsidiaries and Tevva Data are protected against unauthorized access, use, modification,
disclosure or other misuse, in a manner which is proportional to the risks associated with
such information and, to the knowledge of Tevva, no material unauthorized access to or unauthorized
use, modification, disclosure or other material misuse of such confidential information or
Tevva Data has occurred within the past three years. |
| (xii) | All
persons, including current and former founders, executives, employees and contractors of
Tevva, who contributed in any material respect to any Intellectual Property Rights on behalf
of Tevva or any of its Subsidiaries, including any Tevva Owned IP, during the course of their
employment or engagement or other association with Tevva or any of its Subsidiaries have
executed enforceable assignment agreements that assign to Tevva or its Subsidiaries all of
such founders’, executives’, employees’ or contractors’ rights in
such Intellectual Property Rights to the extent that such Intellectual Property Rights do
not otherwise automatically vest initially in Tevva or its Subsidiaries as a work-made-for-hire
or otherwise by operation of applicable employment law. All such persons have waived all
moral rights in and to the Tevva Owned IP. |
| (xiii) | To
the knowledge of Tevva, there are no competitor patents currently in force or application
stage which prevent Tevva from exploiting the Tevva Intellectual Property Rights necessary
for the conduct of its business as currently conducted. |
| (i) | The
Tevva Disclosure Letter sets forth a full, complete and true list of the Software used in
Tevva’s or its Subsidiaries’ business, including and identifying all Software
components owned by Tevva or its Subsidiaries (“Tevva Software”) and all
Software licensed from third parties, including without limitation identifying all open source
software (“Tevva Third Party Software”) excluding any off-the-shelf Software
that is generally commercially available to the retail public. |
| (ii) | The
Software used in Tevva’s (and any of its Subsidiaries’) businesses is in good
working order and condition, conform to the applicable specifications and documentation,
and performs the functions and operations intended by Tevva or the applicable third party. |
| (iii) | Except
for the Tevva Third Party Software listed in the Tevva Disclosure Letter: |
| (A) | Tevva
(or any of its Subsidiaries) is the sole and exclusive owner of, or has valid and enforceable
rights to use, sell, license, and assign all Tevva Software free and clear of any liens,
encumbrances, claims, or restrictions of any kind; and |
| (B) | the
Tevva Software neither contains nor embodies nor uses nor requires any third party software,
including development tools and utilities. |
| (iv) | Copies
of all material license and maintenance agreements for the Tevva Third Party Software have
been made available by Tevva to EMV. |
| (v) | No person
has been provided a copy of the Tevva Software except pursuant to a license. |
| (vi) | Other
than components made available to Tevva under permissive open source code licenses, all copies
of the source code and related documentation for all Tevva Software are securely located
at Tevva’s premises at the applicable address specified in the Tevva Disclosure Letter.
No source code or related documentation forming part of the Tevva Software is subject to
escrow. |
| (vii) | The
source code or related documentation of any Tevva Software has not been disclosed to any
third party. None of the Tevva Software is subject to a ‘copyleft’ open source
code license or to any license requiring the present or future public disclosure of its source
code. None of the Tevva Software used in Tevva’s business is subject to a ‘copyleft’
open source code license or to any license that as used by Tevva or its Subsidiaries requires
(A) the present or future public disclosure of its source code or (B) the license or other
provision of any Tevva Software used in Tevva’s (and any of its Subsidiaries’)
business on a royalty-free basis, or (C) allow any person to decompile, disassemble or otherwise
reverse engineer any Tevva Software, and Tevva and its Subsidiaries are in compliance with
any restrictions and requirements for any copyleft open source code licenses. As of the date
hereof, there has been no unauthorized theft, reverse engineering, decompiling, disassembling,
or other unauthorized disclosure of or access to any source code for any Software used in
Tevva’s (and any of its Subsidiaries’) business. As of the date hereof, there
has been no unauthorized theft, reverse engineering, decompiling, disassembling, or other
unauthorized disclosure of or access to any source code for any Software used in Tevva’s
(and any of its Subsidiaries’) business. |
| (viii) | Except
as listed in the Tevva Disclosure Letter, there are no material problems or material defects
in the Software used in Tevva’s (and any of its Subsidiaries’) business including
bugs, logic errors or failures of the Software used in Tevva’s (and any of its Subsidiaries’)
business to operate as described in the related documentation, and, except for such disclosed
material problems or material defects, the Software used in Tevva’s (and any of its
Subsidiaries’) business operates substantially in accordance with its documentation
and specifications and has no other material problems or defects. |
| (ix) | The
finished and commercially ready Software used in Tevva’s (or any of its Subsidiaries)
businesses does not contain any undocumented code, disabling mechanism or protection feature
intentionally designed to prevent its use, including any clock, timer, counter, computer
virus, worm, software lock, drop dead device, Trojan-horse routine, trap door, time bomb
or any other codes or instructions that may be used to access, modify, replicate, distort,
delete, damage or disable or otherwise impair Software or data, other software, operating
systems, computers, networks or equipment with which the finished and commercially ready
Software interacts. |
| (cc) | Information
Technology Systems. The IT Systems of Tevva and its Subsidiaries are in good working
condition to effectively perform all computing, information technology and data processing
operations necessary for the operation of the business of Tevva and its Subsidiaries. In
the three years prior to the date of this Agreement, there has been no unauthorized access,
use, intrusion, or failure, breakdown or continued substandard performance of any IT System
that has caused (i) a material disruption or interruption in or to the operation of any business
of Tevva or any of its Subsidiaries or (ii) material loss, destruction, damage, or harm of
or to Tevva (or any of its Subsidiaries) or its operations, personnel, property, or other
assets. Tevva has taken steps consistent with applicable industry best practices, to protect
the integrity and security of the IT Systems of Tevva and the data and other information
stored thereon. Tevva has taken commercially reasonable steps to provide for the remote-site
back-up of data and information critical to the conduct of its business in an attempt to
avoid material disruption to, or material interruption in, the conduct of such business.
Tevva has taken appropriate measures in accordance with industry practices to ensure disaster
recovery and business continuity plans in the event of disaster or emergency. |
| (i) | The
following definitions apply to this Section (dd): |
| (A) | “Data
Protection Laws” means the EU GDPR, the UK GDPR,
the Data Protection Act 2018, the Privacy and Electronic Communications (EC
Directive) Regulations 2003 and all other laws (whether of the UK or any other jurisdiction)
relating to the use, protection and privacy of Personal Data or privacy of electronic communications
which are from time to time applicable to Tevva or any of its Subsidiaries (or any part of
their business) and any laws that replace, extend, re-enact, consolidate or amend any of
the foregoing; |
| (B) | “EU
GDPR” means the General Data Protection Regulation (EU) 2016/679; |
| (C) | “International
Organisation” has the meaning given to it in applicable Data Protection Laws from
time to time; |
| (D) | “Personal
Data” has the
meaning given to that term in the UK GDPR; |
| (E) | “Personal
Data Breach” has the meaning given to it in applicable Data Protection Laws from
time to time; |
| (F) | “Processor”
has the meaning given to that term in applicable Data Protection Laws from time to time;
and |
| (G) | “UK
GDPR” has the meaning
given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection
Act 2018. |
| (ii) | Tevva
and its Subsidiaries have complied at all times and in all respects with the Data Protection
Laws and there are no facts or circumstances likely to give rise to any allegation of non-compliance
with such Data Protection Laws. |
| (iii) | Tevva
and its Subsidiaries have complied with all data subject requests, including any requests
for access to Personal Data, the cessation of specified processing activities or the rectification
or erasure of any Personal Data, in each case in accordance with the requirements of the
Data Protection Laws, and there are no such requests outstanding at the date of this Agreement. |
| (iv) | Except
as set forth in the Tevva Disclosure Letter, neither Tevva nor its Subsidiaries have suffered
any breach of security or unauthorized access to, loss of, theft of, or unauthorized use,
modification, disclosure or other material misuse of confidential information, Tevva Data
or Personal Data. |
| (v) | Neither
Tevva nor any of its Subsidiaries has received any: |
| (A) | notice,
request, correspondence or other communication from any governmental or state agency, body,
department, board, official or entity exercising regulatory or supervisory authority pursuant
to any Data Protection Laws, or been subject to any enforcement action (including any fines
or other sanctions), in each case relating to a breach or alleged breach of their obligations
under the Data Protection Laws and there is no threatened such notice, request, correspondence
or other communication or enforcement action and neither Tevva nor any of its Subsidiaries
are aware of any facts or circumstances which could lead to any such notice, request, correspondence
or other communication or enforcement action; or |
| (B) | claim,
complaint, correspondence or other communication from a data subject or any other person
claiming a right to compensation under the Data Protection Laws, or alleging any breach of
the Data Protection Laws, to the knowledge of Tevva there is no fact or circumstance that
may lead to any such notice, request, correspondence, communication, claim, complaint or
enforcement action and to the knowledge of Tevva there is no threatened such notice, request,
correspondence, communication, claim, complaint or enforcement action and neither Tevva nor
any of its Subsidiaries are aware of any facts or circumstances which could lead to any such
notice, request, correspondence, communication, claim, complaint or enforcement action. |
| (vi) | Tevva
and its Subsidiaries have: |
| (A) | not
processed Personal Data without having a legal basis under Data Protection Laws to carry
out such processing; |
| (B) | only
collected Personal Data for specified, explicit and legitimate purposes in accordance with
Data Protection Laws and has not further processed such Personal Data in a manner inconsistent
with those purposes; |
| (C) | maintained
complete, accurate and up to date written records of all categories of processing activities
that it has carried out as required under Data Protection Laws, copies of which are included
in the Tevva Disclosure Letter; |
| (D) | ensured,
as required pursuant to applicable law, that Personal Data that it has processed is accurate
and, where necessary, kept up to date; |
| (E) | ensured
that the period for which Personal Data is stored is limited to a strict minimum in accordance
with Data Protection Laws; |
| (F) | ensured
that it is only processing such Personal Data as is adequate, relevant and limited to what
is necessary for the purpose for which it is processing the Personal Data in accordance with
Data Protection Laws; |
| (G) | attached
to the Tevva Disclosure Letter complete, accurate and up-to-date copies of all data protection
impact assessments; |
| (H) | in
place arrangements in respect of its business to respond to any Personal Data Breach in accordance
with the requirements of the Data Protection Laws; |
| (I) | where
the EU GDPR applies, disclosed or transferred Personal Data outside the European Economic
Area or to any International Organisation (as defined in the EU GDPR) in accordance with
all applicable requirements under the EU GDPR; |
| (J) | where
the UK GDPR applies, disclosed or transferred Personal Data outside the UK or to any International
Organisation (as defined in the UK GDPR) in accordance with all applicable requirements under
the UK GDPR; |
| (K) | complied
with all applicable requirements under the Data Protection Laws relating to the disclosure
or transfer of Personal Data outside the UK; |
| (L) | undertaken
appropriate due diligence on any third parties they have appointed to process any Personal
Data; |
| (M) | an
agreement is in place with all data Processors in accordance with Article 28 of the UK GDPR
or (as applicable) EU GDPR and have disclosed in the Tevva Disclosure Letter full details
of, and provided to EMV copies of, all agreements and arrangements under which Personal Data
is shared by Tevva or its Subsidiaries with any data Processor or by any data Processor with
Tevva or its Subsidiaries with regard to its business; |
| (N) | an
agreement or arrangement is in place with all joint Controllers in accordance with Article
26 of the UK GDPR or (as applicable) EU GDPR and have disclosed in the Tevva Disclosure Letter
full details of, and provided to EMV copies of, all agreements and arrangements under which
Personal Data is shared by Tevva or its Subsidiaries with any data Controller or by any data
Controller with Tevva or its Subsidiaries with regard to its business; |
| (O) | implemented
appropriate technical and organisational measures to protect against the unauthorised or
unlawful processing of, or accidental loss or damage to, any Personal Data processed by Tevva
or the Processors, and ensure a level of security appropriate to the risk represented by
the processing and the nature of the Personal Data to be protected; |
| (P) | put
in place an adequate data breach response plan (including maintaining a record of personal
data breaches) that enables Tevva and the Processors to comply with the related requirements
of the Data Protection Laws; |
| (Q) | having
carried out an audit or investigations into the processing activities carried out by any
data Processor processing Personal Data on its behalf, not revealed any suspected, actual
or threatened occurrence of breach of Data Protection Laws; |
| (R) | introduced
and applied appropriate data protection policies and procedures concerning the collection,
use, storage, retention and security of Personal Data (details of which are included in the
Tevva Disclosure Letter), and implemented regular staff training, use testing, audits or
other documented mechanisms to ensure and monitor compliance with such policies and procedures; |
| (S) | obtained
all necessary consents and authorizations to store, gain access to, collect, use, disclose,
retain, process and transmit any data including Personal Data to the extent required by Data
Protection Laws in connection with the operation of the business as currently conducted; |
| (T) | appointed
a data protection officer if required to do so under the Data Protection Laws, and details
of such appointment are set out in the Tevva Disclosure Letter; and |
| (U) | issued
appropriate privacy notices to data subjects which comply with all applicable requirements
of the Data Protection Laws and at all times have complied with such privacy notices. The
Tevva Disclosure Letter identifies each Tevva Privacy Policy currently in effect. |
| (vii) | The
execution, delivery and performance of this Agreement and the consummation of the transactions
contemplated hereby, including any use, transfer or disclosure of Personal Information and
Personal Data resulting from such transactions, will not violate any applicable privacy law
or the Tevva Privacy Policies. |
| (ee) | Canada’s
Anti-Spam Legislation. |
| (i) | Tevva
is currently in compliance with and has always complied with all applicable CASL provisions
since the effective date of such provisions. |
| (ii) | Tevva
has implemented policies and procedures that comply with CASL, and Tevva has operated in
accordance with such policies and procedures at all times. |
| (iii) | No
person (including any Governmental Entity) has commenced any complaint, claim, proceeding,
litigation, investigation, inquiry, or enforcement action relating to Tevva’s CASL
compliance, or, to the knowledge of Tevva, threatened any such complaint, claim, proceeding,
litigation, investigation, inquiry, or enforcement action. |
| (ff) | Finance
and Guarantees. |
| (i) | The
Tevva Disclosure Letter contains full particulars of all money borrowed by Tevva and each
of its Subsidiaries in an amount greater than $150,000, and all financial facilities currently
outstanding or available to Tevva or any of its Subsidiaries in an amount greater than $150,000,
including copies of all related documentation. |
| (ii) | To
the knowledge of Tevva, there are no circumstances or matters which could affect the continuance
of any of the financial facilities that are currently available to Tevva or any of its Subsidiaries
or which may result in an amendment of their terms. |
| (iii) | No
Encumbrance over any of the assets of Tevva or its Subsidiaries is now enforceable and there
are no circumstances likely to give rise to such enforcement. |
| (iv) | Other
than the Security Document (full details of which are contained in the Tevva Disclosure Letter),
no Encumbrance, guarantee, indemnity or other similar security arrangement has been entered
into, given or agreed to be given by: |
| (A) | Tevva,
any of its Subsidiaries or any third party for any indebtedness or other obligations of Tevva
or any of its Subsidiaries; or |
| (B) | Tevva
or any of its Subsidiaries for any indebtedness or other obligations of any third party. |
| (v) | Neither
Tevva nor any of its Subsidiaries has any outstanding loan capital, nor has it lent any money
that has not been repaid, and there are no debts owing to Tevva or any of its Subsidiaries
other than debts that have arisen in the normal course of business. |
| (gg) | Consents
and Authorizations. |
| (i) | Tevva
and each of its Subsidiaries holds all (i) Authorizations and (ii) licences, consents, permits
and authorities, other than the Authorizations, necessary to carry on its business in the
places and in the manner in which it is carried on at the date of this Agreement (“Consents”).
Details of the Consents and Authorizations, and copies of all related documentation, have
been included in the Tevva Disclosure Letter. |
| (ii) | Each
of the Consents and Authorizations is valid and subsisting, and neither Tevva nor any of
its Subsidiaries is in breach of the terms or conditions of the Consents and Authorizations
(or any of them). |
| (iii) | There
is no reason why any of the Consents or Authorizations may be revoked, suspended or cancelled
(in whole or in part), or may not be renewed on the same terms |
| (hh) | Defective
Products and Services. |
| (i) | Neither
Tevva nor any of its Subsidiaries has manufactured or sold any products or supplied any services
that were at the time they were manufactured, sold or supplied or are, or to the knowledge
of Tevva will become, faulty or defective, or that did not or do not comply with any: |
| (A) | warranties
or representations expressly or impliedly made by or on behalf of Tevva or any of its Subsidiaries
in connection with such products or services; or |
| (B) | laws,
regulations, standard and requirements applicable to such products or services. |
| (ii) | No
proceedings have been started, are pending or, to the knowledge of Tevva, have been threatened
against Tevva or any of its Subsidiaries: |
| (A) | in
which it is claimed that any product manufactured or sold by Tevva or any of its Subsidiaries
is defective, not appropriate for its intended use or has caused bodily injury or material
damage to any person or property when applied or used as intended; or |
| (B) | in
respect of any services supplied by Tevva or any of its Subsidiaries. |
| (iii) | There
are no disputes between Tevva or any of its Subsidiaries and any of their respective customers,
clients or any other third parties in connection with any products or services manufactured,
sold or supplied by Tevva or any of its Subsidiaries. |
| (i) | The
assets included in the Tevva Balance Sheet, together with any assets acquired since the date
of the Tevva Balance Sheet and all other assets used by Tevva or any of its Subsidiaries
in connection with its business (except for those disposed of in the normal course of business)
are: |
| (A) | legally
and beneficially owned by either Tevva or its Subsidiaries, and the relevant owner has good
and marketable title to such assets; and |
| (B) | in
the possession and control of Tevva or its Subsidiaries. |
| (ii) | In
all material respects, the inventory (including work-in-progress) of Tevva and its Subsidiaries: |
| (A) | is
in good condition and is capable of being sold in the Ordinary Course of Tevva and/or its
Subsidiary’s business in accordance with its current price list without discount, rebate
or allowance; |
| (B) | is
not excessive and is adequate in relation to the current trading requirements of its business
and none of the inventory is obsolete, slow moving, unusable or unmarketable or includes
returned goods; and |
| (C) | fully
complies with all applicable laws, regulations, standards (including British and European
standards) and specifications agreed with customers. |
| (i) | The
following definition applies to this Section (ii): |
“Competition
Laws” means the national and directly effective legislation of any jurisdiction in which Tevva or its Subsidiaries conduct
business which from time to time governs the conduct of companies or individuals in relation to restrictive or other anti-competitive agreements or
practices (including, but not limited to, cartels, pricing, resale pricing, market sharing, bid rigging, terms of trading, purchase or
supply and joint ventures), dominant or monopoly market positions (whether held individually or collectively) and the control of acquisitions
or mergers.
| (ii) | Neither
Tevva nor any of its Subsidiaries is or has been engaged in any agreement, arrangement,
practice or conduct which involves or constitutes an infringement of the Competition Laws
and none of their respective directors, officers or employees is or has been engaged in any
activity involving or constituting an offence or infringement under the Competition Laws. |
Schedule H
–
Representations and Warranties of Holdco
| (a) | Organization
and Qualification. Holdco is a corporation duly incorporated and existing under the laws
of the Province of British Columbia and is up-to-date in respect of all material corporate
filings and is in good standing under the Business Corporations Act (British Columbia).
Holdco has the corporate power and authority to own and operate its assets and conduct its
business as now owned and conducted. Holdco is duly qualified, licensed or registered to
carry on business and is in good standing in each jurisdiction in which the character of
its assets and properties owned, leased, licensed or otherwise held, or the nature of its
activities, makes such qualification necessary, and has all Authorizations required to own,
lease and operate its assets and to carry on its business as now conducted, except where
the failure to be so qualified will not, individually or in the aggregate, have a Material
Adverse Change in respect of it. |
| (b) | Corporate
Authority. Holdco has the requisite corporate power and authority to enter into and perform
its obligations under this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery and performance by Holdco of this Agreement and the consummation
of the transactions contemplated hereby, including the Arrangement, have been duly authorized
by all necessary corporate action on the part of Holdco and no other corporate proceedings
on the part of Holdco is necessary to authorize this Agreement or the consummation of the
transactions contemplated hereby, including the Arrangement, other than the Holdco Arrangement
Resolution. |
| (c) | Enforcement
and Binding Obligation. This Agreement has been duly executed and delivered by Holdco,
and, assuming the due authorization, execution and delivery by each of the other Parties,
constitutes a legal, valid and binding agreement of Holdco enforceable against it in accordance
with its terms subject only to any limitation under bankruptcy, insolvency or other law affecting
the enforcement of creditors’ rights generally and the discretion that a court may
exercise in the granting of equitable remedies such as specific performance and injunction. |
| (d) | Government
Authorization. The execution, delivery and performance by Holdco of this Agreement and
the consummation by Holdco of the transactions contemplated hereby or by any document referred
to or contemplated in connection with this Agreement, including the Arrangement, does not
require any Authorization or other action by or in respect of, or filing, recording, registering
or publication with, or notification to, any Governmental Entity other than (i) the Interim
Order and any approvals required by the Interim Order and (ii) the Final Order. |
Schedule I
–
Representations and Warranties of Parentco
| (a) | Organization
and Qualification. Parentco is a corporation duly incorporated and existing under the
laws of the Province of British Columbia and is up-to-date in respect of all material corporate
filings and is in good standing under the Business Corporations Act (British Columbia).
Parentco has the corporate power and authority to own and operate its assets and conduct
its business as now owned and conducted. Parentco is duly qualified, licensed or registered
to carry on business and is in good standing in each jurisdiction in which the character
of its assets and properties owned, leased, licensed or otherwise held, or the nature of
its activities, makes such qualification necessary, and has all Authorizations required to
own, lease and operate its assets and to carry on its business as now conducted, except where
the failure to be so qualified will not, individually or in the aggregate, have a Material
Adverse Change in respect of it. |
| (b) | Corporate
Authority. Parentco has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery and performance by Parentco of this Agreement and the
consummation of the transactions contemplated hereby, including the Arrangement, have been
duly authorized by all necessary corporate action on the part of Parentco and no other corporate
proceedings on the part of Parentco is necessary to authorize this Agreement or the consummation
of the transactions contemplated hereby, including the Arrangement. |
| (c) | Enforcement
and Binding Obligation. This Agreement has been duly executed and delivered by Parentco,
and, assuming the due authorization, execution and delivery by each of the other Parties,
constitutes a legal, valid and binding agreement of Parentco enforceable against it in accordance
with its terms subject only to any limitation under bankruptcy, insolvency or other law affecting
the enforcement of creditors’ rights generally and the discretion that a court may
exercise in the granting of equitable remedies such as specific performance and injunction. |
| (d) | Government
Authorization. The execution, delivery and performance by Parentco of this Agreement
and the consummation by Parentco of the transactions contemplated hereby or by any document
referred to or contemplated in connection with this Agreement, including the Arrangement,
does not require any Authorization or other action by or in respect of, or filing, recording,
registering or publication with, or notification to, any Governmental Entity other than (i)
the Interim Order and any approvals required by the Interim Order and (ii) the Final Order. |
Exhibit 10.1
FORM OF VOTING SUPPORT AND LOCK-UP AGREEMENT
FOR ELECTRAMECCANICA SHAREHOLDERS
THIS AGREEMENT is made
as of August ___, 2023.
BETWEEN
Steven Sanders (the “EMV Shareholder”)
AND
TEVVA MOTORS LIMITED, a corporation existing under the laws
of England and Wales (“Tevva”)
RECITALS:
| A. | The EMV Shareholder is the registered and/or beneficial owner of the Subject Securities (as defined herein)
set out in Schedule A attached hereto. |
| B. | Tevva, ElectraMeccanica Vehicles Corp. (“EMV”), 1432952 B.C. Ltd. (“Holdco”)
and 1432957 B.C. Ltd. (i.e. Parentco) have entered into an arrangement agreement (the “Arrangement Agreement”)
concurrently with entering into this Voting Support and Lock-Up Agreement (the “Agreement”) pursuant to which EMV and
Tevva have agreed to combine their businesses by way of a statutory plan of arrangement under the provisions of the Business Corporations
Act (British Columbia) (the “Arrangement”). |
| C. | In connection with the execution of the Arrangement Agreement Tevva has requested that the EMV Shareholder
enter into this Agreement and the EMV Shareholder is willing to do so, subject to the terms and conditions hereof. |
NOW THEREFORE in consideration
of the covenants and agreements herein contained, the parties agree as follows:
Article 1
–
Interpretation
| (a) | Terms used but not defined in this Agreement that are defined in the Arrangement Agreement shall have
the respective meanings ascribed to them in the Arrangement Agreement. |
| (b) | In this Agreement, “Subject Securities” means, collectively, the EMV Shares, EMV Options,
EMV DSUs, EMV PSUs and EMV Warrants set out in Schedule A to this Agreement and any other equity or debt securities of EMV held by
the EMV Shareholder on the date hereof or acquired by the EMV Shareholder after the date hereof. |
| (c) | “Benchmark VWAP” means the volume weighted average price of the Resulting Issuer Shares
on Nasdaq for the first 10 trading days of the Resulting Issuer Shares on Nasdaq following the Effective Time. |
| (d) | “immediate family” means with respect to any Person, such Person’s spouse or
domestic partner (or former spouse or former domestic partner), ancestors, descendants (whether by blood, marriage or adoption) or spouse
of a descendant of such Person, brothers and sisters (whether by blood, marriage or adoption). |
| (e) | “Pro Rata Locked-Up Share Amount” means (i) the number of Locked-Up Shares (defined
below) owned by the EMV Shareholder immediately following the consummation of all of the share exchange transactions provided for in the
Plan of Arrangement divided by (ii) the number of Resulting Issuer Shares subject to lock-up covenants immediately following the consummation
of all of the share exchange transactions provided for in the Plan of Arrangement. |
Article 2
–
VOTING AND SUPPORT Covenants of the EMV Shareholder
The EMV Shareholder hereby
covenants and agrees in favour of Tevva that, from the date hereof until the earlier of (x) the Effective Date, and (y) the
termination of this Agreement in accordance with Article 6, except as permitted by this Agreement:
| (a) | at the EMV Meeting (including in connection with any separate vote of any sub-group of securityholders
of EMV that may be required to be held and of which sub-group the EMV Shareholder forms a part) or at any adjournment or postponement
thereof or in any other circumstances upon which a vote, consent or other approval (including by written consent in lieu of a meeting)
with respect to the EMV Arrangement Resolution (or any other matter necessary to complete the transactions contemplated by the Arrangement
Agreement) is sought from the EMV Shareholder, the EMV Shareholder shall cause its Subject Securities (as applicable) to be counted as
present for purposes of establishing quorum and shall vote (or cause to be voted) its Subject Securities (that have a right to vote at
such meeting) in favour of (i) the EMV Arrangement Resolution and (ii) any other matter necessary for the consummation of the transactions
contemplated by the Arrangement Agreement; |
| [(b) | at any other meeting of EMV Securityholders (including in connection with any separate vote of any sub-group
of EMV Securityholders that may be required to be held and of which sub-group the EMV Shareholder forms a part) or at any adjournment
or postponement thereof or in any other circumstances upon which a vote, consent or other approval of all or some of the EMV Securityholders
is sought (including by written consent in lieu of a meeting), the EMV Shareholder shall: |
| (i) | consult with Tevva as to how its Subject Securities are to be voted; |
| (ii) | if and as instructed in writing by Tevva, cause its Subject Securities (that have a right to vote at
such meeting) to be counted or not to be counted as present for purposes of establishing quorum and vote (or cause to be voted) its
Subject Securities (that have a right to vote at a meeting considering such) in the manner instructed by Tevva regarding (A) any EMV Acquisition Proposal and any matter
that could reasonably be expected to delay, prevent or frustrate the successful completion of the Arrangement; and (B) the opposition
of any action or agreement (including, without limitation, any amendment of any agreement) that would result in a breach of any representation,
warranty, covenant, agreement or other obligation of the EMV Shareholder in this Agreement (any of the foregoing, an “Alternative
Matter”); and |
| (iii) | if instructed in writing by Tevva, deliver or cause to be delivered to EMV, with a copy to Tevva concurrently,
as soon as practicable following the mailing of the information circular pertaining to any meeting where an Alternative Matter is to be
considered, and in any event no later than 10 Business Days prior to the date on which such meeting is to be held (unless instructed otherwise
by Tevva), duly executed proxies or voting information forms directing those individuals as may be designated by Tevva to vote in the
manner as instructed by Tevva regarding any Alternative Matter (and for certainty, such proxies or voting information forms shall direct
the designated individuals to vote against any Alternative Matter if instructed by Tevva), and each not revoke or vary in any manner any
such proxy or voting information form without the prior written consent of Tevva;] |
| (c) | as soon as practicable following the mailing of the EMV Circular and in any event no later than five Business
Days prior to the date of the EMV Meeting, the EMV Shareholder shall deliver or cause to be delivered to EMV, with a copy to Tevva concurrently,
duly executed proxies or voting information forms directing those individuals as may be designated by Tevva to vote (i) in favour
of the approval of the EMV Arrangement Resolution, and (ii) in favour of any other matter necessary for the consummation of the transactions
contemplated by the Arrangement Agreement, and each such proxy or voting information form shall not be revoked or varied in any manner
without the written consent of Tevva unless this Agreement is terminated in accordance with Article 6 prior to the EMV Meeting; |
| (d) | the EMV Shareholder shall not directly or indirectly: (i) sell, transfer, gift, assign, grant a participation
interest in, option, pledge, hypothecate, encumber, grant a security or voting interest in or otherwise convey or encumber (each, a “Transfer”),
or enter into any agreement, option or other arrangement (including any profit sharing arrangement) with respect to the Transfer of any
of its Subject Securities to any person, other than pursuant to the Arrangement Agreement and the transactions provided for therein or
with the prior written consent of Tevva, (ii) grant any proxies or power of attorney, deposit any of its Subject Securities into
any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to its Subject Securities,
other than in accordance with this Agreement, or (iii) agree to take any of the actions described in the foregoing clauses (i) and
(ii); |
| (e) | subject to Section 2.2, the EMV Shareholder shall not take any other action of any kind, directly
or indirectly, which might reasonably be regarded as likely to reduce the success of, or delay or interfere with the completion of the
transactions contemplated by the Arrangement Agreement; |
| (f) | the EMV Shareholder shall not exercise any rights of appraisal or rights of dissent provided under any
applicable laws or otherwise in connection with the Arrangement or the transactions contemplated by the Arrangement Agreement; |
| (g) | the EMV Shareholder shall promptly, and in any event in sufficient time to comply with the other covenants
and agreements made herein, revoke any and all previous proxies granted or voting instruction forms or other voting documents delivered
that may conflict or be inconsistent with the obligations of EMV Shareholder under this Agreement; |
| (h) | from the date hereof until the termination of this Agreement in accordance with Article 6, subject
to Section 2.2, the EMV Shareholder shall not, and shall ensure that its Representatives and affiliates do not, directly or indirectly: |
| (i) | solicit proxies or become a participant in a solicitation in opposition to the EMV Arrangement Resolution; |
| (ii) | assist any person in taking or planning any action that would compete with, restrain or otherwise serve
to interfere with or inhibit the transactions contemplated by the EMV Arrangement Resolution or the Arrangement Agreement; |
| (iii) | act jointly or in concert with others with respect to voting securities of EMV for the purpose of opposing
or competing with the transactions contemplated by the EMV Arrangement Resolution or the Arrangement Agreement; or |
| (iv) | knowingly solicit, initiate, encourage or otherwise facilitate any inquiry, proposal or offer that constitutes
or may reasonably be expected to constitute or lead to, an EMV Acquisition Proposal; |
| (i) | the EMV Shareholder shall not bring, or threaten to bring, any Proceedings for the purpose of, or which
has or may have the effect of, directly or indirectly, frustrating, stopping, preventing, impeding, delaying or varying any of the transactions
contemplated by the Arrangement Agreement; and |
| (j) | the EMV Shareholder (i) shall promptly notify Tevva of the amount of any securities of EMV other
than the Subject Securities acquired by the EMV Shareholder after the execution of this Agreement and (ii) acknowledges that any
such securities shall be subject to the terms of this Agreement as though owned by the EMV Shareholder on the date hereof. |
The EMV Shareholder shall
promptly advise Tevva, at first orally and then in writing, of any development that causes, or that would reasonably be expected to cause,
a breach by the EMV Shareholder of any representation, warranty or covenant contained in this Agreement.
Article 3 –
No Restrictions on Fiduciary Duties
as Director or Officer of EMV
Notwithstanding any provision
of this Agreement to the contrary, if the EMV Shareholder is a director or officer of EMV, the EMV Shareholder (and its representatives
and affiliates and their officers, directors, employees, representatives or agents, as applicable) shall not be limited or restricted
in the exercise of his or her fiduciary duties as a director or officer of EMV. Tevva acknowledges and agrees that the EMV Shareholder
is not making any agreement or understanding herein in any capacity other than in the capacity as holder of the Subject Securities. Nothing
contained herein shall result in any liability to the EMV Shareholder as a result of any action taken by the EMV Shareholder as a director
or officer of EMV in connection with matters contemplated in or otherwise permitted by the Arrangement Agreement, including in connection
with an EMV Acquisition Proposal.
Article 4
–
Restrictions on transfer
| 4.1 | Restriction on Transfer of Resulting Issuer Shares |
| (a) | Subject to Section 4.1(b) and Section 4.1(f), the EMV Shareholder covenants and agrees in favour of Tevva
and the Resulting Issuer that, commencing on and including the Effective Date and for a period of 180 days thereafter (with the Effective
Date being counted as the first day) the EMV Shareholder will not, directly or indirectly, offer to sell, sell, contract to sell, lend,
swap, or enter into any other agreement to transfer the economic consequences of, or otherwise dispose of or deal with, or publicly announce
any intention to offer to sell, sell, contract to sell or grant any option to purchase, hypothecate, pledge, transfer, assign, purchase
any option or sell, contract to sell, lend, swap, or enter into any agreement to transfer the economic consequences of, or otherwise dispose
of or deal with, whether through the facilities of a stock exchange, by private placement or otherwise, any Resulting Issuer Shares or
any other securities of the Resulting Issuer acquired by the EMV Shareholder as a result of the Arrangement (collectively the “Locked-Up
Securities”), unless the EMV Shareholder first obtains the written consent of the Resulting Issuer. |
| (b) | Notwithstanding Section 4.1(a) but subject in all cases to applicable law and regulatory policy including
that relating to material non-public information, the EMV Shareholder may sell Locked-Up Securities that are Resulting Issuer Shares (the
“Locked-Up Shares”) after the date that is 30 days from the Effective Time upon receiving written notice from the Resulting
Issuer that: |
| (i) | the value of the trading volume of the Resulting Issuer Shares on Nasdaq on any past trading day (the
“Trading Volume”) was equal to or greater than US$50,000,000 (the “Trading Volume Condition”); or |
| (ii) | the volume weighted average price of the Resulting Issuer Shares on Nasdaq has been equal to or
greater than the Benchmark VWAP on no less than eight of the 10 most recent trading days (the “Market Value
Condition”), |
in which case the EMV
Shareholder may sell such number of Locked-Up Shares as is equal to (I) 10% of the Trading Volume as set out in the Sale Eligibility Notice
(defined below), multiplied by (II) the EMV Shareholder’s Pro Rata Locked-Up Share Amount.
| (c) | Following completion by the EMV Shareholder of the sale of all of the Resulting Issuer Shares that may
be sold by the EMV Shareholder pursuant to the Trading Volume Condition or the Market Value Condition, as applicable, the provisions of
Section 4.1(b) shall once again apply mutatis mutandis for successive tranches of sales by the EMV Shareholder on a repeating basis. |
| (d) | Subject to Section 4.1(e), from the completion of the 30 day period provided for in Section 4.1(b) until
the expiry of the 180 period provided for in Section 4.1, Tevva shall (or shall cause the Resulting Issuer to) promptly (and in any event
before the opening of the next trading day on Nasdaq) notify the EMV Shareholder if the Trading Volume Condition or the Market Value Condition
has been satisfied during the most recently completed trading day in respect of which Tevva or the Resulting Issuer has access to trading
data, acting reasonably (a “Sale Eligibility Notice”). A Sale Eligibility Notice shall be delivered by email to the
email address of the EMV Shareholder set forth in Section 7.5, provided that notwithstanding such section notice shall be deemed to have
been validly given at the time that the email is delivered. |
| (e) | Upon the sale of all of the Locked-Up Shares that may be sold following delivery of a Sale Eligibility
Notice, the EMV Shareholder shall deliver notice as provided for in Section 7.5 (provided that notwithstanding such section notice shall
be deemed to have been validly given at the time that the relevant email is delivered and notification to legal counsel shall not be required)
that all sales that may be made pursuant to the notice have been completed (a “Full Sale Notice”). If a Sale Eligibility
Notice has been delivered by Tevva or the Resulting Issuer pursuant to Section 4.1(d) and a corresponding Full Sale Notice has not been
delivered to Tevva or the Resulting Issuer pursuant to this Section 4.1(e), Tevva and the Resulting Issuer shall not deliver any further
Sale Eligibility Notice until such time as the EMV Shareholder has delivered a Full Sale Notice to Tevva or the Resulting Issuer. |
| (f) | Notwithstanding Section 4.1(a), and subject to the conditions below, the EMV Shareholder may transfer
the Locked-Up Securities without the prior written consent of the Resulting Issuer in the following cases: |
| (i) | pursuant to the exercise or conversion, as applicable, of securities of the Resulting Issuer that are
exercisable for or convertible into Resulting Issuer Shares in accordance with their terms, and any related transfer of Resulting Issuer
Shares in connection therewith (A) deemed to occur upon the “cashless” or “net” exercise of any options or warrants
or (B) for the purpose of paying the exercise price of any options or warrants or for paying taxes due as a result of the exercise of
any options or warrants, the vesting of any options, warrants or stock awards, or as a result of the vesting of any underlying Resulting
Issuer Shares, it being understood that all Resulting Issuer Shares received upon such exercise, vesting or transfer will remain subject
to the restrictions of this Agreement; |
| (ii) | a transfer of Locked-Up Securities by the EMV Shareholder as part of a distribution to members, partners,
shareholders or equity holders of the EMV Shareholder; |
| (iii) | pursuant to a bona fide take-over bid made to all holders of Resulting Issuer Shares, arrangement,
merger, amalgamation or other business combination or similar transaction in which other holders of Resulting Issuer Shares are entitled
to participate and that is approved or supported by the board of directors of the Resulting Issuer, provided that in the event that such
transaction is not completed, the Locked-Up Securities subject to this Agreement shall remain subject to this Agreement; |
| (iv) | where the EMV Shareholder has become liable to pay tax as a result of the transactions provided for in
the Plan of Arrangement, to the extent necessary to generate sufficient proceeds to satisfy such tax liability; |
| (v) | in the case of an entity other than an individual, (A) to one or more corporations or other entities directly
or indirectly owned or controlled by, or under common control with the EMV Shareholder and (B) transfers by virtue of the laws of the
jurisdiction of the EMV Shareholder’s organization or the EMV Shareholder’s organizational documents upon dissolution of the
EMV Shareholder; |
| (vi) | in the case of an individual, transfers (A) to a partnership, limited liability company or other entity
of which the EMV Shareholder and/or the immediate family (as defined below) of the EMV Shareholder are the legal and beneficial owner
of all of the outstanding equity securities or similar interests, (B) by bona fide gift to a member of the EMV Shareholder’s immediate
family or to a trust, the beneficiary of which is the EMV Shareholder or a member of the EMV Shareholder’s immediate family, or
an Affiliate of such person, (C) by virtue of will, intestate succession or the laws of descent and distribution upon death of the EMV
Shareholder or (D) by operation of law or pursuant to a court order, including a qualified domestic relations order, divorce decree, divorce
settlement or separation agreement; or |
| (vii) | transfers in connection with any bona fide mortgage, encumbrance or pledge to a financial institution
in connection with any bona fide loan or debt transaction or enforcement thereunder, including foreclosure thereof; |
provided, however, that
in the case of clauses (ii), (v) and (vi), it shall be a condition to the transfer or distribution that each applicable permitted transferee,
trustee, donee or distributee enter into a written agreement, providing substantially similar lock-up restrictions as are set out in this
Section 4.1 in respect of the Locked-Up Securities subject to the transfer (it being understood that any references to “immediate
family” in the agreement executed by such permitted transferee shall expressly refer only to the immediate family of the applicable
EMV Shareholder and not to the immediate family of such permitted transferee).
| 4.2 | Resulting Issuer as Beneficiary |
The EMV Shareholder acknowledges
to both Tevva and the Resulting Issuer that the Resulting Issuer has direct rights against the EMV Shareholder under Section 4.1 of this
Agreement, which rights are intended for the benefit of, and shall be enforceable by either the Resulting Issuer or Tevva on behalf of
the Resulting Issuer and for such purpose, Tevva confirms that it is acting as trustee on behalf of the Resulting Issuer and agrees to
enforce such provisions on behalf of the Resulting Issuer if and as necessary, subject to bankruptcy, insolvency and other similar laws
affecting creditors’ rights generally, and to general principles of equity.
Article 5
–
Representations and Warranties
| 5.1 | Representations and Warranties of the EMV Shareholder |
The EMV Shareholder hereby
represents and warrants to Tevva as follows, and acknowledges that Tevva is relying upon such representations and warranties in entering
into this Agreement:
| (a) | Incorporation; Capacity; Authorization. The EMV Shareholder has the power and capacity, and if
not an individual has received all requisite approvals, to execute and deliver this Agreement and to perform its obligations hereunder. |
| (b) | Enforceable. This Agreement has been duly executed and delivered by the EMV Shareholder and constitutes
a legal, valid and binding obligation, enforceable against the EMV Shareholder in accordance with its terms, subject to bankruptcy, insolvency
and other similar laws affecting creditors’ rights generally, and to general principles of equity. |
| (c) | Ownership of Securities. The EMV Shareholder is the registered and/or beneficial owner of the Subject
Securities described herein and has control and direction, directly or indirectly, over the Subject Securities. The EMV Shareholder is
and will be immediately prior to the Effective Date, the registered and/or beneficial owner of the Subject Securities, with good and marketable
title thereto, free and clear of any and all mortgages, liens, charges, restrictions, security interests, adverse claims, pledges, encumbrances
and demands or rights of others of any nature or kind whatsoever. |
| (d) | Exercise of Control or Direction. Other than the Subject Securities, the EMV Shareholder does not
legally own, own of record or beneficially, or exercise control or direction over, or hold any right to acquire, any securities of EMV. |
| (e) | No Breach. Neither the execution and delivery of this Agreement by the EMV Shareholder, nor the
compliance by the EMV Shareholder with any of the provisions hereof will: |
| (i) | result in any breach of, or constitute a default (or an event which with notice or lapse of time or
both would become a default) (or give rise to any third party right of termination, cancellation, material modification,
acceleration, purchase or right of first refusal) under any term or provision of any constating or governing documents, by-laws
or resolutions of the EMV Shareholder, or under any of the terms,
conditions or provisions of any note, loan agreement, bond, mortgage, indenture, contract, license, agreement, lease, permit or other
instrument or obligation to which the EMV Shareholder is a party or by which the EMV Shareholder or any of its properties or assets (including
the Subject Securities) may be bound; |
| (ii) | require on the part of the EMV Shareholder any filing with (other than pursuant to the requirements of
applicable securities legislation, which filings the EMV Shareholder will undertake) or require any permit, authorization, consent or
approval of, any Governmental Entity or any other person; or |
| (iii) | subject to compliance with any approval contemplated by the Arrangement Agreement, violate or conflict
with any judgement, order, notice, decree, statute, law, ordinance, rule, regulation or other restriction applicable to the EMV Shareholder
or any of its properties or assets. |
| (f) | Voting. The EMV Shareholder has the sole and exclusive right to enter into this Agreement and to
vote, or cause the voting of, the Subject Securities as contemplated herein. Other than this Agreement, none of the Subject Securities
is subject to any proxy, power of attorney, attorney-in-fact, voting trust, vote pooling or other agreement with respect to the
right to vote, call meetings of EMV Shareholders or give consents or approvals of any kind. |
| (g) | Arrangement Agreement. The EMV Shareholder acknowledges having received an execution copy of the
Arrangement Agreement prior to the EMV Shareholder’s execution of this Agreement. |
| 5.2 | Representations and Warranties of Tevva |
Tevva hereby represents and
warrants to the EMV Shareholder as follows, and acknowledges that the EMV Shareholder is relying upon such representations and warranties
in entering into this Agreement that:
| (a) | Capacity. It is validly existing under the laws of its jurisdiction of incorporation and has the
requisite corporate power and capacity to execute and deliver this Agreement and the Arrangement Agreement and to perform its obligations
hereunder. |
| (b) | Authorization. The execution, delivery and performance of this Agreement and the Arrangement Agreement
by Tevva have been duly authorized by its board of directors and no other internal proceedings on its part is necessary to authorize this
Agreement and the Arrangement Agreement. |
| (c) | Enforceable. Each of this Agreement and the Arrangement Agreement has been duly executed and delivered
by Tevva and constitutes a legal, valid and binding obligation of Tevva, enforceable against Tevva in accordance with its terms, subject
to bankruptcy, insolvency and other similar laws affecting creditors’ rights generally, and to general principles of equity. |
Article 6 –
Termination
This Agreement shall automatically
terminate upon [the earlier of (a)] the valid termination of the Arrangement Agreement in accordance with its terms [and (b) the day that
is 180 days following the Effective Date.]
| 6.2 | Termination by the EMV Shareholder or Tevva |
This Agreement may be terminated
by notice in writing:
| (a) | at any time prior to the Effective Time, by the mutual agreement of the parties; |
| (b) | by Tevva, if (i) the EMV Shareholder breaches or is in default of any of its covenants or obligations
under this Agreement and such breach or such default has or may reasonably be expected to have an adverse effect on the consummation of
the transactions contemplated by the Arrangement Agreement, or (ii) any of the representations or warranties of the EMV Shareholder
under this Agreement shall have been at the date hereof, or subsequently become, untrue or incorrect in any material respect; provided
in each case that Tevva has notified the EMV Shareholder in writing of any of the foregoing events and the same has not been cured by
the EMV Shareholder within five Business Days of the date of such notice was received by the EMV Shareholder; or |
| (c) | by the EMV Shareholder if, without the EMV Shareholder’s prior written consent (such consent not
to be unreasonably withheld, conditioned or delayed), the Arrangement Agreement is amended in a manner that would result (i) in the
transactions contemplated by the Arrangement Agreement being completed in a manner that would be materially adverse to the EMV Shareholder
as compared to the transactions contemplated by the Arrangement Agreement prior to such amendment, or (ii) in an extension of the
Outside Date beyond the ultimate Outside Date contemplated in the Arrangement Agreement entered into as of the date hereof. |
If this Agreement is terminated
in accordance with this Article 6, the provisions of this Agreement will become void and no party shall have liability to any other
party, except in respect of a breach of a representation, warranty or covenant of this Agreement which occurred prior to such termination.
The EMV Shareholder shall be entitled to withdraw any form of proxy in respect of the EMV Arrangement Resolution in the event this Agreement
is duly terminated in accordance with this Article 6.
Article 7 –
General
The EMV Shareholder and Tevva
will, from time to time, execute and deliver all such further documents and instruments and do all such acts and things as the other party
may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.
Except as required by applicable
laws or regulations or by any Governmental Entity or in accordance with the requirements of any stock exchange, the EMV Shareholder shall
not make any public announcement or statement with respect to this Agreement without the approval of Tevva, which shall not be unreasonably
conditioned, withheld or delayed. Moreover, the EMV Shareholder agrees to consult with Tevva prior to issuing each public announcement
or statement with respect to this Agreement, subject to the overriding obligations of applicable laws. The EMV Shareholder consents to
the details of this Agreement being described in any information circular or press release prepared by EMV or Tevva in connection with
the Arrangement and in any other public disclosure document required by any applicable laws, and this Agreement being made publicly available,
including by filing on SEDAR.
Each of the parties shall
pay its respective legal, financial advisory and accounting costs and expenses incurred in connection with the preparation, execution
and delivery of this Agreement and all documents and instruments executed or prepared pursuant hereto and any other costs and expenses
whatsoever and howsoever incurred.
| 7.4 | Amendments and Waivers |
Any provision of this Agreement
may be amended, modified, altered, supplemented or waived only if such amendment, modification, alteration, supplement or waiver is in
writing and signed, in the case of an amendment, modification, alteration or supplement, by all of the parties hereto, or in the case
of a waiver, by the party against whom the waiver is to be effective, and no failure or delay by any party in exercising any right, power
or privilege hereunder will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. No waiver of any of the provisions of this Agreement will be
deemed to constitute a waiver of any other provision (whether or not similar).
| (a) | Any notice, or other communication given regarding the matters contemplated by this Agreement must be
in writing, sent by personal delivery, courier or electronic mail and addressed: |
Tevva Motors Limited
Tevva London Unit 1 London Distribution Park,
Windrush Road, Tilbury, Essex, England, RM18 7EW
Attention: |
David Mackey |
Email: |
David.Mackey@tevva.com |
with a copy to:
Gowling WLG (Canada) LLP
421 7 Ave SW #1600
Calgary, AB T2P 4K9
Attention: |
Sharagim Habibi |
Email: |
Sharagim.habibi@gowlingwlg.com |
If to the EMV Shareholder:
______________________________
______________________________
______________________________
| (b) | Any notice or other communication is deemed to be given and received (i) if sent by personal delivery
or same day courier, on the date of delivery if it is a Business Day and the delivery was made prior to 5:00 p.m. (local time in place
of receipt) and otherwise on the next Business Day, (ii) if sent by overnight courier, on the next Business Day, (iii) if sent by electronic
mail, on the Business Day on the date of transmission if it is a Business Day and the transmission was sent prior to 5:00 p.m. (local
time in place of receipt) and otherwise on the next Business Day. A party may change its address for service from time to time by providing
a notice in accordance with the foregoing. Any subsequent notice or other communication must be sent to the party at its changed address.
Any element of a party’s address that is not specifically changed in a notice will be assumed not to be changed. Sending a copy
of a notice or other communication to a party’s legal counsel as contemplated above is for information purposes only and does not
constitute delivery of the notice or other communication to that party. The failure to send a copy of a notice or other communication
to legal counsel does not invalidate delivery of that notice or other communication to a party. |
Time is of the essence in
this Agreement.
| 7.7 | Specific Performance and other Equitable Rights |
| (a) | The parties hereby agree that irreparable damage would occur in the event that any provision of this
Agreement were not performed in accordance with its specific terms or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy
for any such damages. Accordingly, the parties acknowledge and hereby agree that in the event of any breach or threatened breach by the
EMV Shareholder, on the one hand, or Tevva, on the other hand, of any of their respective covenants or obligations set forth in this Agreement,
Tevva, on the one hand, or the EMV Shareholder, on the other hand, shall be entitled to an injunction or injunctions to prevent or restrain
breaches or threatened breaches of this Agreement by the other, and to specifically enforce the terms and provisions of this Agreement
to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of the other under this Agreement,
without any requirement to prove actual damages and without any requirement for the securing or posting of any bond in connection with
the obtaining of any such injunction. Each of the parties hereby agrees not to raise any objections to the availability of the equitable
remedy of specific performance to prevent or restrain breaches or threatened breaches of this Agreement by it, and to specifically enforce
the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants
and obligations of the other parties under this Agreement. |
| (b) | The parties hereto further agree that (i) by seeking the remedies provided for in this Section 7.7,
a party shall not in any respect waive its right to seek any other form of relief that may be available to a party under this Agreement
in the event that this Agreement has been terminated or in the event that the remedies provided for in this Section 7.7 are not available
or otherwise are not granted, and (ii) nothing set forth in this Section 7.7 shall require any party hereto to institute any
proceeding for (or limit any party’s right to institute any proceeding for) specific performance under this Section 7.7 prior
or as a condition to exercising any termination right under Section 6.1 or Section 6.2 (and pursuing damages after such termination),
nor shall the commencement of any legal proceeding restrict or limit any party’s right to terminate this Agreement in accordance
with the terms of Section 6.1 or Section 6.2 or pursue any other remedies under this Agreement that may be available then or
thereafter. |
This Agreement and the provisions
of the Arrangement Agreement constitute the entire agreement and understanding between and among the parties hereto with respect to the
subject matter hereof and supersede any prior agreement, representation or understanding with respect thereto.
This Agreement shall enure
to the benefit of and be binding upon the parties hereto and their respective successors, permitted assigns and legal personal representatives,
provided that no party may assign, delegate or otherwise transfer any of its rights, interests or obligations under this Agreement without
the prior written consent of the other parties hereto, except that Tevva may assign, delegate or otherwise transfer any of their respective
rights, interests or obligations under this Agreement to an affiliate, without reducing their own respective obligations hereunder.
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, that provision will be severed
from this Agreement and 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 is 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 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.
This Agreement will be governed
by and interpreted and enforced in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable
therein. Each of the parties to this Agreement irrevocably attorns to the non-exclusive jurisdiction of the courts of the Province of
British Columbia in respect of all matters arising under and in relation to this Agreement or the Arrangement and waives, to the fullest
extent possible, the defence of an inconvenient forum or any similar defence to the maintenance of proceedings in such courts.
The division of this Agreement
into Articles, Sections and Schedules and the insertion of the recitals and headings are for convenience of reference only and will not
affect the construction or interpretation of this Agreement and, unless otherwise stated, all references in this Agreement or in the Schedules
hereto to Articles, Sections and Schedules refer to Articles, Sections and Schedules of and to this Agreement or of the Schedules in which
such reference is made, as applicable.
| 7.13 | Independent Legal Advice |
Each of the parties hereby
acknowledges that it has been afforded the opportunity to obtain independent legal advice and confirms by the execution and delivery of
this Agreement that they have either done so or waived their right to do so in connection with the entering into of this Agreement.
This Agreement may be executed
in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same instrument. The
parties shall be entitled to rely upon delivery of an executed electronic copy of this Agreement, and such executed electronic copy shall
be legally effective to create a valid and binding agreement between the parties.
[Remainder of page intentionally left blank.
Signature pages follow.]
IN WITNESS WHEREOF the
parties have executed this Agreement as of the date first written above.
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TEVVA MOTORS LIMITED |
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Per: |
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Name: |
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Title: |
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[Signature Page to Voting and Support Agreement
– EMV Shareholder]
Schedule A
Subject Securities
Type of Subject Securities |
Number of Subject Securities |
EMV Shares |
|
EMV Options |
|
EMV DSUs |
|
EMV PSUs |
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EMV RSUs |
|
EMV Warrants |
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Exhibit 10.2
FORM OF VOTING SUPPORT AND LOCK-UP AGREEMENT
FOR TEVVA SHAREHOLDERS
THIS AGREEMENT is made
as of August ___, 2023.
BETWEEN
___________________ (the “Tevva Shareholder”)
AND
ELECTRAMECCANICA VEHICLES CORP., a corporation
existing under
the laws of the Province of British Columbia
(“EMV”)
RECITALS:
| A. | The Tevva Shareholder is the registered and/or beneficial owner of the Subject Securities (as defined
herein) set out in Schedule A attached hereto. |
| B. | EMV, Tevva Motors Limited (“Tevva”), 1432952 B.C. Ltd. (“Holdco”)
and 1432957 B.C. Ltd. (i.e. Parentco) have entered into an arrangement agreement (the “Arrangement Agreement”)
concurrently with entering into this Voting Support and Lock-Up Agreement (the “Agreement”) pursuant to which Tevva
and EMV have agreed to combine their businesses by way of a statutory plan of arrangement under the provisions of the Business Corporations
Act (British Columbia) (the “Arrangement”). |
| C. | In connection with the execution of the Arrangement Agreement EMV has requested that the Tevva Shareholder
enter into this Agreement and the Tevva Shareholder is willing to do so, subject to the terms and conditions hereof. |
| D. | Pursuant to this Agreement, the Tevva Shareholder will agree, amongst other things, to approve the Arrangement
and the amendments (substantially in the form set forth in Schedule B) to be made to Tevva’s articles of association pursuant to
Part B of the Tevva Transaction Resolutions (as defined in the Arrangement Agreement), to accept the Offer (as defined herein) and to
sign such documents as are required or desirable to facilitate (i) the sale and purchase of the Tevva Shares (including, if required,
to exercise the drag along right under Tevva’s Articles), and (ii) the Arrangement. |
NOW THEREFORE in consideration
of the covenants and agreements herein contained, the parties agree as follows:
Article 1
–
Interpretation
| (a) | Terms used but not defined in this Agreement that are defined in the Arrangement Agreement shall have
the respective meanings ascribed to them in the Arrangement Agreement. |
| (b) | In this Agreement, “Subject Securities” means, collectively, the Tevva Shares, Tevva
Options, Tevva Warrants and Tevva Shares set out in Schedule A to this Agreement and any other equity or debt securities of Tevva
held by the Tevva Shareholder on the date hereof or acquired by the Tevva Shareholder after the date hereof. |
| (c) | “Benchmark VWAP” means the volume weighted average price of the Resulting Issuer Shares
on Nasdaq for the first 10 trading days of the Resulting Issuer Shares on Nasdaq following the Effective Time. |
| (d) | “immediate family” means with respect to any Person, such Person’s spouse or
domestic partner (or former spouse or former domestic partner), ancestors, descendants (whether by blood, marriage or adoption) or spouse
of a descendant of such Person, brothers and sisters (whether by blood, marriage or adoption). |
| (e) | “Offer” means an offer made by Holdco to all Tevva securityholders, including the Tevva
Shareholder, to acquire all Tevva Shares held by the recipients of such offer (along with any Tevva Shares acquired by such recipient
after the date of such offer and prior to the Effective Time) on arms’ length terms in connection and in accordance with the terms
of the Arrangement Agreement and the Arrangement, in a form satisfactory to EMV (acting reasonably); |
| (f) | “Pro Rata Locked-Up Share Amount” means (i) the number of Locked-Up Shares (defined
below) owned by the Tevva Shareholder immediately following the consummation of all of the share exchange transactions provided for in
the Plan of Arrangement divided by (ii) the number of Resulting Issuer Shares subject to lock-up covenants immediately following the consummation
of all of the share exchange transactions provided for in the Plan of Arrangement. |
| (g) | “Tevva’s Articles” means the articles of association of Tevva from time to time. |
Article 2
–
VOTING AND SUPPORT Covenants of the Tevva Shareholder
The Tevva Shareholder
hereby covenants and agrees in favour of EMV that, from the date hereof until the earlier of (x) the Effective Date, and (y) the
termination of this Agreement in accordance with Article 5, except as permitted by this Agreement:
| (a) | at the Tevva Meeting (including in connection with any separate vote of any sub-group of securityholders
of Tevva that may be required to be held and of which sub-group the Tevva Shareholder forms a part) or at any adjournment or postponement
thereof or in any other circumstances upon which a vote, consent or other approval (including by written consent in lieu of a meeting)
with respect to the Tevva Transaction Resolutions (or any other matter necessary to complete the transactions contemplated by the Arrangement
Agreement) is sought from the Tevva Shareholder, the Tevva Shareholder shall cause its Subject Securities (as applicable) to be counted
as present for purposes of establishing quorum and shall vote (or cause to be voted) its Subject Securities (that have a right to vote
at such meeting) in favour of (i) the Tevva Transaction Resolutions and (ii) any other matter necessary for the consummation of the
transactions contemplated by the Arrangement Agreement; |
| (b) | at any other meeting of Tevva securityholders (including in connection with any separate vote of any sub-group
of Tevva securityholders that may be required to be held and of which sub-group the Tevva Shareholder forms a part) or at any adjournment
or postponement thereof or in any other circumstances upon which a vote, consent or other approval of all or some of the Tevva securityholders
is sought (including by written consent in lieu of a meeting), the Tevva Shareholder shall: |
| (i) | consult with EMV as to how its Subject Securities are to be voted; |
| (ii) | if and as instructed in writing by EMV, cause its Subject Securities (that have a right to vote at such
meeting) to be counted or not to be counted as present for purposes of establishing quorum and vote (or cause to be voted) its Subject
Securities (that have a right to vote at a meeting considering such) in the manner instructed by EMV regarding (A) any matter that could
reasonably be expected to delay, prevent or frustrate the successful completion of the Arrangement; and (B) the opposition of any action
or agreement (including, without limitation, any amendment of any agreement) that would result in a breach of any representation, warranty,
covenant, agreement or other obligation of the Tevva Shareholder in this Agreement (any of the foregoing, an “Alternative Matter”);
and |
| (iii) | if instructed in writing by EMV, deliver or cause to be delivered to Tevva, with a copy to EMV concurrently,
as soon as practicable following the mailing of the information circular pertaining to any meeting where an Alternative Matter is to be
considered, and in any event no later than 10 Business Days prior to the date on which such meeting is to be held (unless instructed otherwise
by EMV), duly executed proxies or voting information forms directing those individuals as may be designated by EMV to vote in the manner
as instructed by EMV regarding any Alternative Matter (and for certainty, such proxies or voting information forms shall direct the designated
individuals to vote against any Alternative Matter if instructed by EMV), and each not revoke or vary in any manner any such proxy or
voting information form without the prior written consent of EMV; |
| (c) | as soon as practicable following the mailing of the Tevva Circular and in any event no later than five
Business Days prior to the date of the Tevva Meeting, the Tevva Shareholder shall deliver or cause to be delivered to Tevva, with a copy
to EMV concurrently, duly executed proxies or voting information forms directing those individuals as may be designated by EMV to vote
(i) in favour of the approval of the Tevva Transaction Resolutions, and (ii) in favour of any other matter necessary for the
consummation of the transactions contemplated by the Arrangement Agreement, and each such proxy or voting information form shall not be
revoked or varied in any manner without the written consent of EMV unless this Agreement is terminated in accordance with Article 5
prior to the Tevva Meeting; |
| (d) | the Tevva Shareholder shall not directly or indirectly: (i) sell, transfer, gift, assign, grant a participation
interest in, option, pledge, hypothecate, encumber, grant a security or voting interest in or otherwise
convey or encumber (each, a “Transfer”), or enter into any agreement, option or other arrangement (including any profit
sharing arrangement) with respect to the Transfer of any of its Subject Securities to any person, other than (A) pursuant to the Arrangement
Agreement and the transactions provided for therein or with the prior written consent of EMV and (B) in respect of a Transfer of Subject
Securities by the Tevva Shareholder as part of a distribution to members, partners, shareholders or equity holders of the Tevva Shareholder
or as part of a reorganization of the Tevva Shareholder that is completed by the later to occur of (x) 30 days from the date hereof and
(y) the initial filing of the EMV Circular with the SEC, provided that any transferee of Subject Securities executes a voting support
and lock-up agreement substantially in the form of this Agreement (ii) grant any proxies or power of attorney, deposit any of its
Subject Securities into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect
to its Subject Securities, other than in accordance with this Agreement, or (iii) agree to take any of the actions described in the
foregoing clauses (i) and (ii); |
| (e) | subject to Section 2.2, the Tevva Shareholder shall not take any other action of any kind, directly
or indirectly, which might reasonably be regarded as likely to reduce the success of, or delay or interfere with the completion of the
transactions contemplated by the Arrangement Agreement; |
| (f) | the Tevva Shareholder shall not exercise any rights of appraisal or rights of dissent provided under any
applicable laws or otherwise in connection with the Arrangement or the transactions contemplated by the Arrangement Agreement; |
| (g) | the Tevva Shareholder shall promptly, and in any event in sufficient time to comply with the other covenants
and agreements made herein, revoke any and all previous proxies granted or voting instruction forms or other voting documents delivered
that may conflict or be inconsistent with the obligations of Tevva Shareholder under this Agreement; |
| (h) | from the date hereof until the termination of this Agreement in accordance with Article 5, subject
to Section 2.2, the Tevva Shareholder shall not, and shall ensure that its Representatives and affiliates do not, directly or indirectly: |
| (i) | solicit proxies or become a participant in a solicitation in opposition to the Tevva Transaction Resolutions; |
| (ii) | assist any person in taking or planning any action that would compete with, restrain or otherwise serve
to interfere with or inhibit the transactions contemplated by the Tevva Transaction Resolutions or the Arrangement Agreement; or |
| (iii) | act jointly or in concert with others with respect to voting securities of Tevva for the purpose of opposing
or competing with the transactions contemplated by the Tevva Transaction Resolutions or the Arrangement Agreement; |
| (i) | the Tevva Shareholder shall not bring, or threaten to bring, any Proceedings for the purpose of, or which
has or may have the effect of, directly or indirectly, frustrating, stopping, preventing, impeding,
delaying or varying any of the transactions contemplated by the Arrangement Agreement; and |
| (j) | the Tevva Shareholder (i) shall promptly notify EMV of the amount of any securities of Tevva other
than the Subject Securities acquired by the Tevva Shareholder after the execution of this Agreement and (ii) acknowledges that any
such securities shall be subject to the terms of this Agreement as though owned by the Tevva Shareholder on the date hereof. |
The Tevva Shareholder shall
promptly advise EMV, at first orally and then in writing, of any development that causes, or that would reasonably be expected to cause,
a breach by the Tevva Shareholder of any representation, warranty or covenant contained in this Agreement.
The Tevva
Shareholder hereby irrevocably undertakes, covenants and agrees in favour of EMV to:
| (a) | accept the Offer within five Business Days of receiving the Offer and (so far as it is within the Tevva
Shareholder’s power to do so) to procure to be done all such things as may be required to give effect to such acceptance; |
| (b) | procure that a Drag Along Notice (as such term is defined in Tevva’s Articles) is executed and delivered
to Tevva as soon as reasonably possible after, and in any event within five Business Days of the requisite number of Tevva shareholders
having accepted the Offer; |
| (c) | complete, execute and deliver (subject to completion of the sale of the entire issued share capital in
Tevva to Holdco as envisaged in the Offer and the Arrangement) to Tevva the following documents within two Business Days of the same being
sent to the Tevva Shareholder (the "Documents”), provided such Documents are in a reasonable form, in order to give
effect to the transactions contemplated by the Arrangement Agreement: |
| (i) | a stock transfer form or stock transfer forms in respect of all Tevva Shares owned by the Tevva Shareholder
to be sold to Holdco pursuant to the Tevva Shareholder’s acceptance of the Offer (which, for the avoidance of doubt, will include
without limitation any Tevva Shares acquired by or issued to the Tevva Shareholder after acceptance of the Offer and prior to the Effective
Time) (the “Sale Shares”); |
| (ii) | if requested by EMV, a declaration of trust in favour of Holdco in respect of the beneficial ownership
of the Sale Shares, whereby the Tevva Shareholder shall irrevocably declare that (a) the entire beneficial interest in the Sale Shares
and (b) all rights attaching to the Sale Shares and all dividends and other distributions and money and such assets from time to time
received or arising in respect of the Sale Shares are held from the date of the declaration of trust absolutely by the Tevva Shareholder
on bare trust for the Holdco; |
| (iii) | a share sale and purchase agreement or minority sale letter between the Tevva Shareholder and Holdco setting
out the terms of the sale and purchase of the Sale Shares and including warranties in respect of the Tevva Shareholder’s title to,
and capacity to sell, the Sale Shares with full title guarantee and free from any encumbrances and otherwise on the same terms as section
4.1(a)-(f) of this Agreement; |
| (iv) | if requested by EMV, a voting power of attorney in relation to the Sale Shares in favour of the Buyer
pending, and to expire upon, the due stamping of the relevant stock transfer forms and the entry of Holdco (or the Resulting Issuer) in
to Tevva’s register of members as the holder of the Sale Shares; |
| (v) | if applicable, an election pursuant to section 431 of the Income Tax (Earnings & Pensions) Act
2003; |
| (vi) | if requested, an indemnity to be given to Tevva and/or its directors for any lost share certificate(s)
relating to the Sale Shares; and |
| (vii) | any other agreement, deed, release, waiver (including waiver of pre-emption rights), consent or other
document which is reasonably required to enable, implement or register the transfer of the Sale Shares to Holdco or which is preparatory
to the sale and purchase of the Sale Shares or the Arrangement or otherwise necessary to implement of facilitate the sale and purchase
of the Sale Shares or the Arrangement; |
| (d) | not in any circumstances whilst the Arrangement Agreement is in force withdraw the Tevva Shareholder’s
acceptance of the Offer; |
| (e) | promptly complete, execute and deliver all such other documents and do all such other things as may be
reasonably necessary and reasonably requested of the Tevva Shareholder to give full effect to each of the Tevva Shareholder’s undertakings,
agreements, warranties, representations appointments and consents set out in this Agreement. |
| 2.4 | Investor Majority Consent |
The Tevva Shareholder hereby
irrevocably consents, for the purposes of clause 7.1 and 7.2 of the Investment Agreement, to Tevva proposing the amendment pursuant to
the Tevva Transaction Resolutions.
Article 3
–
Restrictions on transfer
| 3.1 | Restriction on Transfer of Resulting Issuer Shares |
| (a) | Subject to Section 3.1(b) and Section 3.1(f), the Tevva Shareholder covenants and agrees in favour of
EMV and the Resulting Issuer that, commencing on and including the Effective Date and for a period of 180 days thereafter (with the Effective
Date being counted as the first day) the Tevva Shareholder will not, directly or indirectly, offer to sell, sell, contract to sell, lend,
swap, or enter into any other agreement to transfer the economic
consequences of, or otherwise dispose of or deal with, or publicly announce any intention to offer to sell, sell, contract to sell or
grant any option to purchase, hypothecate, pledge, transfer, assign, purchase any option or sell, contract to sell, lend, swap, or enter
into any agreement to transfer the economic consequences of, or otherwise dispose of or deal with, whether through the facilities of a
stock exchange, by private placement or otherwise, any Resulting Issuer Shares or any other securities of the Resulting Issuer acquired
by the Tevva Shareholder as a result of the Arrangement (collectively the “Locked-Up Securities”), unless the Tevva
Shareholder first obtains the written consent of the Resulting Issuer. |
| (b) | Notwithstanding Section 3.1(a) but subject in all cases to applicable law and regulatory policy including
that relating to material non-public information, the Tevva Shareholder may sell Locked-Up Securities that are Resulting Issuer Shares
(the “Locked-Up Shares”) after the date that is 30 days from the Effective Time upon receiving written notice from
the Resulting Issuer that: |
| (i) | the value of the trading volume of the Resulting Issuer Shares on Nasdaq on any past trading day (the
“Trading Volume”) was equal to or greater than US$50,000,000 (the “Trading Volume Condition”); or |
| (ii) | the volume weighted average price of the Resulting Issuer Shares on Nasdaq has been equal to or greater
than the Benchmark VWAP on no less than eight of the 10 most recent trading days (the “Market Value Condition”), |
in which case the Tevva
Shareholder may sell such number of Locked-Up Shares as is equal to (I) 10% of the Trading Volume as set out in the Sale Eligibility Notice
(defined below), multiplied by (II) the Tevva Shareholder’s Pro Rata Locked-Up Share Amount.
| (c) | Following completion by the Tevva Shareholder of the sale of all of the Resulting Issuer Shares that may
be sold by the Tevva Shareholder pursuant to the Trading Volume Condition or the Market Value Condition, as applicable, the provisions
of Section 3.1(b) shall once again apply mutatis mutandis for successive tranches of sales by the Tevva Shareholder on a repeating
basis. |
| (d) | Subject to Section 3.1(e), from the completion of the 30 day period provided for in Section 3.1(b) until
the expiry of the 180 period provided for in Section 3.1(a), EMV shall (or shall cause the Resulting Issuer to) promptly (and in any event
before the opening of the next trading day on Nasdaq) notify the Tevva Shareholder if the Trading Volume Condition or the Market Value
Condition has been satisfied during the most recently completed trading day in respect of which EMV or the Resulting Issuer has access
to trading data, acting reasonably (a “Sale Eligibility Notice”). A Sale Eligibility Notice shall be delivered by email
to the email address of the Tevva Shareholder set forth in Section 6.5, provided that notwithstanding such section notice shall be deemed
to have been validly given at the time that the email is delivered. |
| (e) | Upon the sale of all of the Locked-Up Shares that may be sold following delivery of a Sale Eligibility
Notice, the Tevva Shareholder shall deliver notice as provided for in Section 6.5 (provided that notwithstanding
such section notice shall be deemed to have been validly given at the time that the relevant email is delivered and notification to legal
counsel shall not be required) that all sales that may be made pursuant to the notice have been completed (a “Full Sale Notice”).
If a Sale Eligibility Notice has been delivered by EMV or the Resulting Issuer pursuant to Section 3.1(d) and a corresponding Full Sale
Notice has not been delivered to EMV or the Resulting Issuer pursuant to this Section 3.1(e), EMV and the Resulting Issuer shall not deliver
any further Sale Eligibility Notice until such time as the Tevva Shareholder has delivered a Full Sale Notice to EMV or the Resulting
Issuer. |
| (f) | Notwithstanding Section 3.1(a), and subject to the conditions below, the Tevva Shareholder may transfer
the Locked-Up Securities without the prior written consent of the Resulting Issuer in the following cases: |
| (i) | pursuant to the exercise or conversion, as applicable, of securities of the Resulting Issuer that are
exercisable for or convertible into Resulting Issuer Shares in accordance with their terms, and any related transfer of Resulting Issuer
Shares in connection therewith (A) deemed to occur upon the “cashless” or “net” exercise of any options or warrants
or (B) for the purpose of paying the exercise price of any options or warrants or for paying taxes due as a result of the exercise of
any options or warrants, the vesting of any options, warrants or stock awards, or as a result of the vesting of any underlying Resulting
Issuer Shares, it being understood that all Resulting Issuer Shares received upon such exercise, vesting or transfer will remain subject
to the restrictions of this Agreement; |
| (ii) | a transfer of Locked-Up Securities by the Tevva Shareholder as part of a distribution to members, partners,
shareholders or equity holders of the Tevva Shareholder; |
| (iii) | pursuant to a bona fide take-over bid made to all holders of Resulting Issuer Shares, arrangement,
merger, amalgamation or other business combination or similar transaction in which other holders of Resulting Issuer Shares are entitled
to participate and that is approved or supported by the board of directors of the Resulting Issuer, provided that in the event that such
transaction is not completed, the Locked-Up Securities subject to this Agreement shall remain subject to this Agreement; |
| (iv) | where the Tevva Shareholder has become liable to pay tax as a result of the transactions provided for
in the Plan of Arrangement, to the extent necessary to generate sufficient proceeds to satisfy such tax liability; |
| (v) | in the case of an entity other than an individual, (A) to one or more corporations or other entities directly
or indirectly owned or controlled by, or under common control with the Tevva Shareholder and (B) transfers by virtue of the laws of the
jurisdiction of the Tevva Shareholder’s organization or the Tevva Shareholder’s organizational documents upon dissolution
of the Tevva Shareholder; |
| (vi) | in the case of an individual, transfers (A) to a partnership, limited liability company or other entity
of which the Tevva Shareholder and/or the immediate family (as defined below) of the Tevva Shareholder are the legal and beneficial owner
of all of the outstanding equity securities or similar interests, (B) by bona fide gift to a member of the Tevva Shareholder’s immediate
family or to a trust, the beneficiary of which is the Tevva Shareholder or a member of the Tevva Shareholder’s immediate family,
or an Affiliate of such person, (C) by virtue of will, intestate succession or the laws of descent and distribution upon death of the
Tevva Shareholder or (D) by operation of law or pursuant to a court order, including a qualified domestic relations order, divorce decree,
divorce settlement or separation agreement; or |
| (vii) | transfers in connection with any bona fide mortgage, encumbrance or pledge to a financial institution
in connection with any bona fide loan or debt transaction or enforcement thereunder, including foreclosure thereof; |
provided, however, that
in the case of clauses (ii), (v) and (vi) it shall be a condition to the transfer or distribution that each applicable permitted transferee,
trustee, donee or distributee enter into a written agreement, providing substantially similar lock-up restrictions as are set out in this
Section 3.1 in respect of the Locked-Up Securities subject to the transfer (it being understood that any references to “immediate
family” in the agreement executed by such permitted transferee shall expressly refer only to the immediate family of the applicable
Tevva Shareholder and not to the immediate family of such permitted transferee).
| 3.2 | Resulting Issuer as Beneficiary |
The Tevva Shareholder acknowledges
to both EMV and the Resulting Issuer that the Resulting Issuer has direct rights against the Tevva Shareholder under Section 3.1 of this
Agreement, which rights are intended for the benefit of, and shall be enforceable by either the Resulting Issuer or EMV on behalf of the
Resulting Issuer and for such purpose, EMV confirms that it is acting as trustee on behalf of the Resulting Issuer and agrees to enforce
such provisions on behalf of the Resulting Issuer if and as necessary, subject to bankruptcy, insolvency and other similar laws affecting
creditors’ rights generally, and to general principles of equity.
Article 4
–
Representations and Warranties
| 4.1 | Representations and Warranties of the Tevva Shareholder |
The Tevva Shareholder hereby
represents and warrants to EMV as follows, and acknowledges that EMV is relying upon such representations and warranties in entering into
this Agreement:
| (a) | Incorporation; Capacity; Authorization. The Tevva Shareholder has the power and capacity, and if
not an individual has received all requisite approvals, to execute and deliver this Agreement and to perform its obligations hereunder. |
| (b) | Enforceable. This Agreement has been duly executed and delivered by the Tevva Shareholder and constitutes
a legal, valid and binding obligation, enforceable against the Tevva Shareholder in accordance with its terms. |
| (c) | Ownership of Securities. The Tevva Shareholder is the registered and/or beneficial owner of the
Subject Securities described herein and has control and direction, directly or indirectly, over the Subject Securities. The Tevva Shareholder
is and will be immediately prior to the Effective Date, the registered and/or beneficial owner of the Subject Securities, with good and
marketable title thereto, free and clear of any and all mortgages, liens, charges, restrictions, security interests, adverse claims, pledges,
encumbrances and demands or rights of others of any nature or kind whatsoever. |
| (d) | Exercise of Control or Direction. Other than the Subject Securities, the Tevva Shareholder does
not legally own, own of record or beneficially, or exercise control or direction over, or hold any right to acquire, any securities of
Tevva. |
| (e) | No Breach. Neither the execution and delivery of this Agreement by the Tevva Shareholder, nor the
compliance by the Tevva Shareholder with any of the provisions hereof will: |
| (i) | result in any breach of, or constitute a default (or an event which with notice or lapse of time or both
would become a default) (or give rise to any third party right of termination, cancellation, material modification, acceleration, purchase
or right of first refusal) under any term or provision of any constating or governing documents, by-laws or resolutions of the Tevva
Shareholder, or under any of the terms, conditions or provisions of any note, loan agreement, bond, mortgage, indenture, contract, license,
agreement, lease, permit or other instrument or obligation to which the Tevva Shareholder is a party or by which the Tevva Shareholder
or any of its properties or assets (including the Subject Securities) may be bound; |
| (ii) | require on the part of the Tevva Shareholder any filing with (other than pursuant to the requirements
of applicable securities legislation, which filings the Tevva Shareholder will undertake) or require any permit, authorization, consent
or approval of, any Governmental Entity or any other person (save in relation to any and all Regulatory Approvals that may be required
to be obtained from the UK Secretary of State in the Cabinet Office in order to enable the lawful completion of all or any part of the
Arrangement pursuant to the UK NSIA, as contemplated by the Arrangement Agreement and the Plan of Arrangement); or |
| (iii) | subject to compliance with any approval contemplated by the Arrangement Agreement, violate or conflict
with any judgement, order, notice, decree, statute, law, ordinance, rule, regulation or other restriction applicable to the Tevva Shareholder
or any of its properties or assets. |
| (f) | Voting. The Tevva Shareholder has the sole and exclusive right to enter into this Agreement and
to vote, or cause the voting of, the Subject Securities as contemplated herein. Other than this Agreement, none of the Subject Securities
is subject to any proxy, power of attorney, attorney-in-fact, voting trust, vote pooling or other agreement with respect to the
right to vote, call meetings of Tevva Shareholders or give consents or approvals of any kind. |
| (g) | Arrangement Agreement. The Tevva Shareholder acknowledges having received an execution copy of
the Arrangement Agreement prior to the Tevva Shareholder’s execution of this Agreement. |
| 4.2 | Representations and Warranties of EMV |
EMV hereby represents and
warrants to the Tevva Shareholder as follows, and acknowledges that the Tevva Shareholder is relying upon such representations and warranties
in entering into this Agreement that:
| (a) | Capacity. It is validly existing under the laws of its jurisdiction of incorporation and has the
requisite corporate power and capacity to execute and deliver this Agreement and the Arrangement Agreement and to perform its obligations
hereunder. |
| (b) | Authorization. The execution, delivery and performance of this Agreement and the Arrangement Agreement
by EMV have been duly authorized by its board of directors and no other internal proceedings on its part is necessary to authorize this
Agreement and the Arrangement Agreement. |
| (c) | Enforceable. Each of this Agreement and the Arrangement Agreement has been duly executed and delivered
by EMV and constitutes a legal, valid and binding obligation of EMV, enforceable against EMV in accordance with its terms, subject to
bankruptcy, insolvency and other similar laws affecting creditors’ rights generally, and to general principles of equity. |
Article 5
–
Termination
This Agreement shall
automatically terminate upon the valid termination of the Arrangement Agreement in accordance with its terms.
| 5.2 | Termination by the Tevva Shareholder or EMV |
This Agreement may be terminated
by notice in writing:
| (a) | at any time prior to the Effective Time, by the mutual agreement of the parties; |
| (b) | by EMV, if (i) the Tevva Shareholder breaches or is in default of any of its covenants or
obligations under this Agreement and such breach or such default has or may reasonably be expected to have an adverse effect on the
consummation of the transactions contemplated by the Arrangement Agreement, or (ii) any of the representations or warranties of
the Tevva Shareholder under this Agreement shall have been at the date hereof, or subsequently become, untrue or incorrect in any
material respect; provided in each case that EMV has notified the Tevva Shareholder in writing of any of the foregoing events and
the same has not been cured by the Tevva Shareholder within
five Business Days of the date of such notice was received by the Tevva Shareholder; or |
| (c) | by the Tevva Shareholder if, without the Tevva Shareholder’s prior written consent (such consent
not to be unreasonably withheld, conditioned or delayed), the Arrangement Agreement is amended in a manner that would result (i) in
the transactions contemplated by the Arrangement Agreement being completed in a manner that would be materially adverse to the Tevva Shareholder
as compared to the transactions contemplated by the Arrangement Agreement prior to such amendment, or (ii) in an extension of the
Outside Date beyond the ultimate Outside Date contemplated in the Arrangement Agreement entered into as of the date hereof. |
If this Agreement is terminated
in accordance with this Article 5, the provisions of this Agreement will become void and no party shall have liability to any other
party, except in respect of a breach of a representation, warranty or covenant of this Agreement which occurred prior to such termination.
The Tevva Shareholder shall be entitled to withdraw any form of proxy in respect of the Tevva Transaction Resolutions in the event this
Agreement is duly terminated in accordance with this Article 5.
Article 6
–
General
The Tevva Shareholder and
EMV will, from time to time, execute and deliver all such further documents and instruments and do all such acts and things as the other
party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.
Except as required by applicable
laws or regulations or by any Governmental Entity or in accordance with the requirements of any stock exchange, the Tevva Shareholder
shall not make any public announcement or statement with respect to this Agreement without the approval of EMV, which shall not be unreasonably
conditioned, withheld or delayed. Moreover, the Tevva Shareholder agrees to consult with EMV prior to issuing each public announcement
or statement with respect to this Agreement, subject to the overriding obligations of applicable laws. The Tevva Shareholder consents
to the details of this Agreement being described in any information circular or press release prepared by Tevva or EMV in connection with
the Arrangement and in any other public disclosure document required by any applicable laws, and this Agreement being made publicly available,
including by filing on SEDAR.
Each of the parties shall
pay its respective legal, financial advisory and accounting costs and expenses incurred in connection with the preparation, execution
and delivery of this Agreement and all documents and instruments executed or prepared pursuant hereto and any other costs and expenses
whatsoever and howsoever incurred.
| 6.4 | Amendments and Waivers |
Any provision of this Agreement
may be amended, modified, altered, supplemented or waived only if such amendment, modification, alteration, supplement or waiver is in
writing and signed, in the case of an amendment, modification, alteration or supplement, by all of the parties hereto, or in the case
of a waiver, by the party against whom the waiver is to be effective, and no failure or delay by any party in exercising any right, power
or privilege hereunder will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. No waiver of any of the provisions of this Agreement will be
deemed to constitute a waiver of any other provision (whether or not similar).
| (a) | Any notice, or other communication given regarding the matters contemplated by this Agreement must be
in writing, sent by personal delivery, courier or electronic mail and addressed: |
8057 North Fraser Way
Burnaby, British Columbia
Canada V5J 5M8
Attention: |
Michael Bridge, General Counsel |
Email: |
mike.bridge@electrameccanica.com |
with a copy to:
McCarthy Tétrault LLP
2400 – 743 Thurlow Street
Vancouver, British Columbia
Canada V6E 0C5
Attention: |
David Frost; Gerald Gaunt |
Email: |
dfrost@mccarthy.ca; ggaunt@mccarthy.ca |
If to the Tevva Shareholder:
______________________________
______________________________
______________________________
| (b) | Any notice or other communication is deemed to be given and received (i) if sent by personal delivery
or same day courier, on the date of delivery if it is a Business Day and the delivery was made prior to 5:00 p.m. (local time in place
of receipt) and otherwise on the next Business Day, (ii) if sent by overnight courier, on the next Business Day, (iii) if sent by electronic
mail, on the Business Day on the date of transmission if it is a Business Day
and the transmission was sent prior to 5:00 p.m. (local time in place of receipt) and otherwise on the next Business Day. A party may
change its address for service from time to time by providing a notice in accordance with the foregoing. Any subsequent notice or other
communication must be sent to the party at its changed address. Any element of a party’s address that is not specifically changed
in a notice will be assumed not to be changed. Sending a copy of a notice or other communication to a party’s legal counsel as contemplated
above is for information purposes only and does not constitute delivery of the notice or other communication to that party. The failure
to send a copy of a notice or other communication to legal counsel does not invalidate delivery of that notice or other communication
to a party. |
Time is of the essence in
this Agreement.
| 6.7 | Specific Performance and other Equitable Rights |
| (a) | The parties hereby agree that irreparable damage would occur in the event that any provision of this Agreement
were not performed in accordance with its specific terms or were otherwise breached, and that money damages or other legal remedies would
not be an adequate remedy for any such damages. Accordingly, the parties acknowledge and hereby agree that in the event of any breach
or threatened breach by the Tevva Shareholder, on the one hand, or EMV, on the other hand, of any of their respective covenants or obligations
set forth in this Agreement, EMV, on the one hand, or the Tevva Shareholder, on the other hand, shall be entitled to an injunction or
injunctions to prevent or restrain breaches or threatened breaches of this Agreement by the other, and to specifically enforce the terms
and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations
of the other under this Agreement, without any requirement to prove actual damages and without any requirement for the securing or posting
of any bond in connection with the obtaining of any such injunction. Each of the parties hereby agrees not to raise any objections to
the availability of the equitable remedy of specific performance to prevent or restrain breaches or threatened breaches of this Agreement
by it, and to specifically enforce the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce
compliance with, the covenants and obligations of the other parties under this Agreement. |
| (b) | The parties hereto further agree that (i) by seeking the remedies provided for in this Section 6.7,
a party shall not in any respect waive its right to seek any other form of relief that may be available to a party under this Agreement
in the event that this Agreement has been terminated or in the event that the remedies provided for in this Section 6.7 are not available
or otherwise are not granted, and (ii) nothing set forth in this Section 6.7 shall require any party hereto to institute any
proceeding for (or limit any party’s right to institute any proceeding for) specific performance under this Section 6.7 prior
or as a condition to exercising any termination right under Section 5.1 or Section 5.2 (and pursuing damages after such termination),
nor shall the commencement of any legal proceeding restrict or limit any party’s right to terminate this Agreement in accordance
with the terms of Section 5.1 or Section 5.2 or
pursue any other remedies under this Agreement that may be available then or thereafter. |
This Agreement and the provisions
of the Arrangement Agreement constitute the entire agreement and understanding between and among the parties hereto with respect to the
subject matter hereof and supersede any prior agreement, representation or understanding with respect thereto.
This Agreement shall enure
to the benefit of and be binding upon the parties hereto and their respective successors, permitted assigns and legal personal representatives,
provided that no party may assign, delegate or otherwise transfer any of its rights, interests or obligations under this Agreement without
the prior written consent of the other parties hereto, except that EMV may assign, delegate or otherwise transfer any of their respective
rights, interests or obligations under this Agreement to an affiliate, without reducing their own respective obligations hereunder.
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, that provision will be severed
from this Agreement and 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 is 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 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.
This Agreement will be governed
by and interpreted and enforced in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable
therein. Each of the parties to this Agreement irrevocably attorns to the non-exclusive jurisdiction of the courts of the Province of
British Columbia in respect of all matters arising under and in relation to this Agreement or the Arrangement and waives, to the fullest
extent possible, the defence of an inconvenient forum or any similar defence to the maintenance of proceedings in such courts.
The division of this Agreement
into Articles, Sections and Schedules and the insertion of the recitals and headings are for convenience of reference only and will not
affect the construction or interpretation of this Agreement and, unless otherwise stated, all references in this Agreement or in the Schedules
hereto to Articles, Sections and Schedules refer to Articles, Sections and Schedules of and to this Agreement or of the Schedules in which
such reference is made, as applicable.
| 6.13 | Independent Legal Advice |
Each of the parties hereby
acknowledges that it has been afforded the opportunity to obtain independent legal advice and confirms by the execution and delivery of
this Agreement that they have either done so or waived their right to do so in connection with the entering into of this Agreement.
This Agreement may be executed
in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same instrument. The
parties shall be entitled to rely upon delivery of an executed electronic copy of this Agreement, and such executed electronic copy shall
be legally effective to create a valid and binding agreement between the parties.
[Remainder of page intentionally left blank.
Signature pages follow.]
IN WITNESS WHEREOF the
parties have executed this Agreement as of the date first written above.
|
ELECTRAMECCANICA VEHICLES CORP. |
|
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Per: |
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Name: |
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Title: |
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[Signature Page to Voting and Support Agreement
– Tevva Shareholder]
Schedule A
Subject Securities
Type of Subject Securities |
Number of Subject Securities |
Tevva Ordinary Shares |
|
Tevva Options |
|
Tevva Warrants |
|
Tevva A Ordinary Shares |
|
Schedule B
Amendments to articles of association
Exhibit 10.3
EXECUTION VERSION
Facility Letter
August 14 2023
The Directors
Tevva Motors Limited,
Tevva London Unit
1 London Distribution Park,
Windrush Road,
Tilbury,
Essex,
England, RM18 7EW
Dear Sirs,
Re. Loan Facility in the sum of up to $6,000,000.00
(the "Facility")
We are pleased to place at your disposal the
above secured Dollar term loan Facility subject to the following terms and conditions.
In this Facility Letter the following
words shall have the following meanings:
the
"Lender", "us" or “we” |
Electrameccanica
Vehicles Corp., a company incorporated and registered in British Columbia Canada whose registered office is at Suite 1500, 1055 West
Georgia Street, P.O. Box 11117, Vancouver, British Columbia, Canada, V6E 4NZ; |
"Borrower"
or "you" |
Tevva
Motors Limited incorporated and registered in England with company number 08368694 whose registered office is stated above; |
“Account” |
such
bank account in your name as you shall notify to us in writing; |
“Arrangement
Agreement” |
an
arrangement agreement entered into on even or near date herewith between inter alia, the parties to this Letter, pursuant to which
the parties to that agreement have agreed to combine their businesses by way of a statutory plan of arrangement under the provisions
of the Business Corporations Act (British Columbia) the closing of such transaction taking place being referred to herein as “Closing”;
|
“Availability
Period” |
the
period from and including the Facility Closing Date to and including 15 Business Days thereafter (or such later date as the Lender
may agree); |
"Business
Day" |
a
day when banks in London and Vancouver are open for business; |
"Change
of Control" |
means
any person or group of persons acting in concert gains direct or indirect control of the Borrower. For the purposes of this definition: |
|
(a)
control of the Borrower means:
(i)
the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
(A)
cast, or control the casting of, more than 50 per cent of the maximum number of votes that might be cast at a general meeting
of the Borrower;
(B)
appoint or remove all, or the majority, of the directors or other equivalent officers of the Borrower; or
(C)
give directions with respect to the operating and financial policies of the Borrower with which the directors or other equivalent
officers of the Borrower are obliged to comply;
(ii)
the holding beneficially of more than 50 per cent of the issued share capital of the Borrower (excluding any part of that
issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital);
and
(b)
acting in concert means, a group of persons who, pursuant to an agreement or understanding (whether formal or informal),
actively co operate, through the acquisition directly or indirectly of shares in the Borrower by any of them, either directly or
indirectly, to obtain or consolidate control of the Borrower;
|
"Debenture” |
an
all-assets debenture to be granted by you in favour of us on or around the Facility Closing Date to secure your obligations hereunder
to rank pari passu with the Existing Security under the terms of the Deed of Priority; |
“Deed
of Priority” |
means
a deed of priority to be entered into between the parties and the other lenders who hold the Existing Security on or around Facility
Closing Date; |
“Dollar
and $” |
the
lawful currency for the time being of the United States of America; |
“Existing
Security” and “Permitted Security” |
means:
a)
the debenture dated 10 January 2023 between the Chargor and Givia Pty Limited as trustee for Yajilarra Trust;
b)
the debenture dated 3 August 2023 between the Chargor and TLG Fund I, LP; and
c)
the debenture dated 3 August 2023 between the Chargor and ANGEL COFUND;
|
"Facility
Closing Date" |
means
the date on which the conditions in paragraph 11.2 are satisfied; |
"Facility
Signing Date" |
means
the date of this letter; |
“Finance
Documents” |
means
this Facility Letter, the Debenture and the Deed of Priority, each a “Finance Document”; |
"Interest
Rate" |
means
the interest rate specified in paragraph 5.1; |
“LoI” |
the
non-binding letter of intent dated 28 June 2023 made between you and us; |
"Material
Adverse Effect" |
in
the reasonable opinion of the Lender, a material adverse effect on your business, operations or financial position or your ability
to perform your obligations under any Finance Document |
"Outside
Date" |
has
the meaning given to it in the Arrangement Agreement; |
“Repayment
Date” |
the earliest of:
a)
1 July 2024;
b)
the date of Closing; and
c)
the date which is 90 days from and including the date on which the Arrangement Agreement is terminated for any reason; and
|
“Term” |
the
period commencing on the Facility Closing Date and ending on the Repayment Date. |
| 2.1 | The total amount to be advanced (the "Loan")
under this Facility shall be restricted to $6,000,000.00 (it being acknowledged that the
Initial Payment (as defined below) has already been advanced. |
| 2.2 | You may utilise the rest of the Loan on any
Business Day during the Availability Period following the satisfaction of the conditions
set out in paragraph 11.2 below in not more than 3 drawdowns of a minimum of $1,000,000.00
each. If any amount of the Loan is not drawn during the Availability Period, that undrawn
amount shall be cancelled automatically at the end of the Availability Period. |
| 2.3 | You hereby irrevocably agree with us that
with effect from the Facility Closing Date: |
| 2.3.1 | the sum of $1,000,000.00 (“Initial
Payment”) which was paid to you in the form of a refundable deposit in accordance
with the terms of the LoI shall now be treated in all respects as being part of the Facility
and shall hereafter be dealt with in accordance with the terms of this Facility Letter; and |
| 2.3.2 | the LoI shall be deemed amended
such that the entire text of Section 10 of the same shall be deleted but the remainder of
the LoI will continue in full force and effect. |
| 2.4 | Any drawings under the Loan will be paid
in dollars into the Account by us following receipt of a written drawdown notice (such notice
to be received no later than two Business Days before the date of the proposed drawdown)
specifying the amount of the Loan to be drawn down and confirming that no Event of Default
(as hereinafter defined) is extant and the warranties and representations made by you below
continue to be true and accurate. |
| 3.1 | The Facility is to be utilised by you solely
for the purpose of general working capital which includes (but is not limited to) expenditure
on the production and delivery of trucks for customers but for the avoidance of doubt shall
exclude any payment (or repayment) of any and all existing debt, dividends, stock purchase
and like payments. |
| 3.2 | We are not obliged to monitor or verify how
any amount borrowed under this Facility Letter is used. |
| 4.1 | Repayment of the Facility (together with
any accrued interest and other sums due) shall be made to us in full on the Repayment Date
save that we may (in our sole discretion) decide that the Facility shall be deemed repaid
or written off in whole or in part on Closing. |
| 4.2 | You may repay the Facility (together with
any accrued interest and other sums due) or any part of it early (without premium or penalty)
on the giving of two Business Days' notice but may not reborrow any amount so repaid. |
| 4.3 | All sums from time to time payable by you
in connection with the Facility whether principal, interest or otherwise shall be paid to
us in dollars on the due date no later than 12 noon in immediately available cleared funds
free and clear of any present or future taxes (other than any deduction or withholding of
tax required by law), duties, charges or fees and without any set off or counterclaim or
any condition or deduction whatsoever. If any deductions or withholdings are required by
law to be made from any of the sums payable under this Facility Letter or the Debenture,
you shall provide any evidence of the relevant withholding as we may reasonably require. |
| 5.1 | Subject to paragraph 5.2, interest on the
Facility will accrue at a rate which is 8 per cent per annum calculated on a day-to-day basis
and a 365 day year on amounts outstanding from and including the date of drawdown of the
relevant part of the Loan (and in respect of the Initial Payment, the date it was paid into
your account). Such accrued interest shall be payable on the Repayment Date. |
| 5.2 | Subject to and conditional on (i) Closing
taking place on or prior to the Outside Date and (ii) the Arrangement Agreement not being
terminated prior to the date of Closing, paragraph 5.1 shall not apply and no interest shall
accrue on the Loan. |
| 5.3 | Interest payable under this paragraph 5 shall
be paid after as well as before judgement and whether or not demand for repayment has been
made by us. |
| 6.1 | Your obligations hereunder shall be secured
by the Debenture which shall be continuing security for, inter alia, all moneys, liabilities
and obligations certain or contingent now or hereafter owing or incurred by you to us under
this Facility. |
| 6.2 | You hereby undertake to comply with any priority
requirements of the Existing Security and the Deed of Priority. |
| 6.3 | You hereby confirm that you will comply with
clause 10.1 (Negative pledge and disposals) of the Debenture as if it was in force and incorporated
into this Facility Letter until the Debenture is signed and dated. |
| 7.1 | Notwithstanding the above provisions of this
Facility Letter, the Facility (and all interest and other sums due on it) will become due
and payable or repayable forthwith on demand by us and all our obligations to advance any
undrawn part of the Loan (if any) shall be terminated forthwith if any of the following events
occur: |
| 7.1.1 | you fail to pay any sum under any
Finance Document when due; or |
| 7.1.2 | you are in breach of any other provision
of any Finance Document and such default is not remedied within 14 days of the earlier of
(i) us notifying you of the default and remedy required and (ii) you becoming aware of the
default; or |
| 7.1.3 | any representation, warranty or statement
made, repeated or deemed made by you in, or pursuant to, this Facility Letter is (or proves
to have been) incomplete, untrue, incorrect or misleading when made, repeated or deemed made;
or |
| 7.1.4 | you are in default under any other
financial obligation to any person and such default is not remedied within any relevant grace
period provided that there shall be no Event of Default under this paragraph 7.1.4 if the
aggregate amount of the financial obligation is less than £250,000; or |
| 7.1.5 | a liquidator, administrator, receiver,
sequestrator or similar officer is appointed in respect of all or any of your assets and/or
undertaking; or |
| 7.1.6 | you suspend or cease to carry on
(or threaten to suspend or cease to carry on) all or a material part of your business; or |
| 7.1.7 | you commence negotiations, or enter
into any composition, compromise, assignment or arrangement, with any of your creditors with
a view to rescheduling any of your indebtedness; or |
| 7.1.8 | any petition is presented or any other
steps or proceedings are taken which may lead to any such occurrence referred to in paragraph
7.1.5 above; or |
| 7.1.9 | any distress or execution is levied
on or affects any of your property or assets having an aggregate value of £250,000
and is not discharged within 14 days; or |
| 7.1.10 | there is a Change of Control other
than pursuant to Closing; or |
| 7.1.11 | any event occurs (or circumstances
exist) which the Lender reasonably believes has or is reasonably likely to have a Material
Adverse Effect; or |
| 7.1.12 | all or any part of any Finance Document
becomes invalid, unlawful, unenforceable or ceases to be effective or to have full force
and effect, |
(each, an "Event of Default").
| 7.2 | In the event that default is made in the
payment of any sum under any Finance Document, interest shall accrue on the amount in respect
of which such default has been made from the date of default until payment (as well after
as before judgment) at the rate of 2% per annum above the Interest Rate (“Default
Rate”) and will be payable on demand. |
| 7.3 | On demand you shall indemnify us against
any loss, costs or expenses (including legal fees) which we may sustain or incur as a consequence
of any default by you (including all costs of enforcement or preservation of our rights hereunder)
in the performance of any provision hereof or the occurrence of any Event of Default or as
a consequence of us receiving any sum by way of repayment of any part of a utilisation other
than on the due date for payment thereof. |
| 7.4 | You will promptly notify us in writing of
the occurrence of any Event of Default and of the occurrence of any event which with the
lapse of time will or may constitute an Event of Default. |
| 8. | REPRESENTATIONS
AND WARRANTIES |
| 8.1 | Your acceptance of this Facility constitutes
your continuing representation and warranty to us that: |
| 8.1.1 | you are a duly incorporated limited
liability company validly existing under the law of your jurisdiction of incorporation; |
| 8.1.2 | you have the power to own your assets
and carry on your business as it is being conducted; |
| 8.1.3 | no limit on its powers will be exceeded
as a result of the borrowing or grant of security contemplated by the Finance Documents; |
| 8.1.4 | you have obtained and made all necessary
governmental approvals, consents, licences and registrations required to enter into the agreement
constituted by acceptance of the Finance Documents and the exercise of your rights and performance
of your obligations thereunder; |
| 8.1.5 | no litigation or, arbitration is current
or pending or, so far as you are aware, threatened, which has or could have a Material Adverse
Effect; |
| 8.1.6 | there is no provision in any document
or agreement binding on you which would conflict with or prevent your accepting this Facility
or the entering into of any other Finance Document on the terms and conditions stated herein
or therein or which would prevent your observance of any of the terms herein or therein including,
without limitation, any borrowing limit in your memorandum or articles of association; |
| 8.1.7 | save as disclosed in writing to the
Lender prior to Facility Signing Date, all information which you have provided to us in whatever
format in connection with the Facility was, when given, true and accurate in all material
respects and not misleading in any material respect; |
| 8.1.8 | save as disclosed in writing to the
Lender prior to Facility Signing Date, there has been no material adverse change in your
business, assets or financial condition since the publication of your most recent statutory
accounts; |
| 8.1.9 | no Event of Default and, on the Facility
Signing Date, potential Event of Default, is continuing or might be expected to result from
the making of any part of the Facility; |
| 8.1.10 | no other event or circumstance is
outstanding which constitutes (or, with the expiry of a grace period, the giving of notice,
the making of any determination or any combination thereof, would constitute) a default or
termination event (howsoever described) under any other agreement or instrument which is
binding on you or to which any of your assets are subject which has or is reasonably likely
to have a Material Adverse Effect; |
| 8.1.11 | you have not breached any law or
regulation (including any law aimed at the protection of the environment) which breach has
or is likely to have a Material Adverse Effect; |
| 8.1.12 | your payment obligations under this
Facility Letter rank at least pari passu with all existing and future unsecured and unsubordinated
obligations (including contingent obligations), except for those mandatorily preferred by
law applying to companies generally; and |
| 8.1.13 | you are the sole legal and beneficial
owner of, and have good, valid and marketable title to, all your assets and no security exists
over your assets except for the Existing Security. |
| 9.1 | Time is of the essence but no failure or
delay on our part in exercising any right, power or remedies hereunder shall operate as a
waiver thereof nor shall any single or any partial exercise or waiver of any such right,
power or remedies preclude its further exercise or the exercise of any other right, power
or remedy. The rights and remedies herein expressly specified are cumulative and not exclusive
of any rights or remedies which we may otherwise have. |
| 9.2 | If, at any time, any provision of a Finance
Document is or becomes illegal, invalid or unenforceable in any respect under any law of
any jurisdiction, neither the legality, validity or enforceability of the remaining provisions
nor the legality, validity or enforceability of such provision under the law of any other
jurisdiction will in any way be affected or impaired. |
| 9.3 | A person who is not a party to this Facility
Letter has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce, or
enjoy the benefit of, any term of this Facility Letter. |
| 9.4 | No amendment of any Finance Document shall
be effective unless it is in writing and signed by, or on behalf of, each party to it (or
its authorised representative). |
| 9.5 | You may not assign your rights hereunder,
but the Facility shall enure for the benefit of our successors and assigns. |
| 9.6 | Nothing herein shall prejudice any other
right we may have arising at common law or otherwise. |
| 9.7 | In addition to any right we may have at law,
we may at anytime and without any notice to you set-off any monies which we may hold on your
behalf (in any currency and on any account whatsoever) against monies arising hereunder. |
| 9.8 | Any demand or notice to be given hereunder
shall either be delivered personally or sent by first class pre-paid post, email to your
address last known to us. A notice shall be deemed to have been served as follows: |
| 9.8.1 | if delivered personally, at the time
of such delivery; or |
| 9.8.2 | if sent by air mail, first class,
pre-paid post, at the expiration of 7 days after the envelope containing the same was delivered
into the custody of the postal authorities; or |
| 9.8.3 | if sent by email, at the time of transmission; |
In proving such service, it shall
be sufficient to prove that personal delivery was made, or that the envelope containing such notice was properly addressed and posted
as a first class, pre-paid letter, or that the email was sent to the correct email address, as the case may be. If deemed receipt under
paragraph 9.8 would occur outside business hours in the place of receipt, it shall be deferred until business hours resume. In this paragraph,
business hours means 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt. This paragraph
9.8 does not apply to the service of any proceedings or other documents in any legal action.
| 9.9 | Each party shall be responsible for the payment
of their own costs and expenses incurred in respect of the negotiation and execution of this
Facility. |
| 9.10 | This Facility Letter (together with the
other Finance Documents) constitutes the entire agreement between the parties and supersedes
and extinguishes all previous and contemporaneous agreements, promises, assurances, warranties,
representations and understandings between them, whether written or oral, relating to their
subject matter. |
| 9.11 | We irrevocably appoint Fox Williams LLP
of 10 Finsbury Square, London, EC2A 1AF as our agent to receive on our behalf in England
and Wales in respect of the service of any legal proceedings to settle any dispute or claim
arising out of or in connection with this Facility Letter or its subject matter or formation. |
| 10. | GOVERNING
LAW AND JURISDICTION |
| 10.1 | This Facility Letter and any dispute or
claim arising out of, or in connection with it, its subject matter or formation (including
non-contractual disputes or claims) shall be governed by, and construed in accordance with,
the laws of England and Wales. |
| 10.2 | Subject to paragraph 10.3, you irrevocably
agree, for our sole benefit, that the courts of England and Wales shall have exclusive jurisdiction
to settle any dispute or claim arising out of, or in connection with, this Facility Letter,
its subject matter or formation (including non-contractual disputes or claims). |
| 10.3 | Notwithstanding paragraph 10.2, you irrevocably
agree that we shall have the right to take, and shall not be prevented from taking, proceedings
against you to settle any dispute or claim arising out of, or in connection with, this Facility
Letter, its subject matter or formation (including non-contractual disputes or claims) in
any other court of competent jurisdiction and that we may take such proceedings in any number
of jurisdictions, whether concurrently or not, to the extent permitted by law. |
| 11.1 | If you wish to accept this Facility on
the terms and conditions set out in this Facility Letter, please so indicate to us by signing
and returning to us the enclosed copy of this Facility Letter together with copies of board
minutes of a meeting of your board of directors approving, inter alia, the acceptance of
the Finance Documents within 5 Business Days of the date of this letter. |
| 11.2 | The Borrower shall deliver to the Lender
as soon as practicable (and in any event no later than 20 Business Days of the date of this
letter (or such later date as the Lender may in its sole discretion agree) otherwise the
offer of the Facility shall be deemed to lapse):- |
| 11.2.1 | the Debenture and Deed of Priority
in the agreed form duly executed; and |
| 11.2.2 | approval of the lenders in respect
of the Existing Security (save to the extent covered in the Deed of Priority) and also Barclays
Bank plc, to the extent it has not already been repaid in full. |
| 11.3 | Our obligations under this Facility Letter
shall at all times remain conditional until we shall have received all documents referred
to in paragraph 11.2 and found them to be satisfactory in form and substance (and documents
delivered in the agreed form shall be deemed to be satisfactory). |
Yours faithfully, |
|
|
|
/s/ Susan E. Docherty |
|
|
|
for and on behalf of |
|
|
|
Electrameccanica Vehicles Corp. |
|
We confirm our agreement to the terms and conditions
contained herein.
/s/ David Roberts
for and on behalf of
Tevva Motors Limited
Date 14th August 2023
Exhibit 99.1
MEDIA ALERT
AUGUST 15, 2023
ElectraMeccanica and Tevva Announce Proposed
Merger Agreement Intended to Create a Market Leader in Zero-Emission Commercial Vehicles - Focusing First in the United Kingdom, then
in Europe and the United States
| ● | Proposed Combination with
ElectraMeccanica Expected to Accelerate Tevva’s Expansion in the Electric Medium- and
Heavy-Duty Commercial Vehicle Industry, Which is Growing Rapidly and Expected to Reach $67
Billion in 2030 [1] |
| ● | Tevva has Leading Proprietary
Electric Truck Technology and has Recently Commenced Deliveries to Fleet Customers |
| ● | Proposed Combination Expected
to Accelerate Tevva’s Growth in the UK and Europe and Speed Its Entry into the Highly
Attractive U.S. Market by Leveraging ElectraMeccanica’s U.S. Expertise, State-of-the-Art
U.S. Manufacturing Facility and Capital |
| ● | Proposed Combined Company’s
Financial Targets for 2028 Include Revenue of $1.3-$1.5 billion[2]
and EBITDA Margins in the Mid-Teens |
MESA, AZ and LONDON, UK -- August 15, 2023 (BUSINESSWIRE) -- ElectraMeccanica,
(NASDAQ: SOLO) (“ElectraMeccanica”), a designer and assembler of electric vehicles, and Tevva, a pioneer in electric medium-
and heavy-duty commercial vehicles (“Tevva”), today announced that they have entered into a definitive arrangement agreement,
pursuant to which ElectraMeccanica and Tevva have agreed to combine by way of a British Columbia statutory plan of arrangement.
The attending members of the Boards of Directors of both companies
unanimously approved the proposed transaction. The proposed transaction is intended to accelerate their combined ability to capture the
growing opportunity in commercial electric trucks.
Tevva recently commenced deliveries of its 7.5t battery-electric truck
to commercial fleet customers focused on urban delivery – a critical and high-growth segment of the overall commercial truck market
for delivery-dependent urban areas. Tevva supports its current product with a unique and purpose-built, commercial-grade electric battery
system, and its future product portfolio is being developed to include a proprietary hydrogen range-extender technology, which delivers
a differentiated and sustainable dual-energy solution. Tevva’s existing 110,000-square-foot EV manufacturing facility in Tilbury,
United Kingdom, would be complemented by ElectraMeccanica's recently-commissioned 235,000-square-foot facility in Mesa, Arizona, which
is expected to enable the combined company to scale its production to serve the U.K., European and U.S. markets.
1 [2030E
figures based on Morgan Stanley equity research estimates]
2 [Based
on current foreign exchange rates]
David Roberts, current Director of Tevva and anticipated incoming
Executive Chairman upon the closing of the proposed transaction, said, “Since Tevva's founding more than ten years ago, we have
focused our engineering and product development capabilities on developing a portfolio of zero-emission commercial vehicles that have
generated significant customer interest. Our vehicles have undertaken more than 300,000 miles of testing and operating experience in
real-world conditions by demanding fleet operators. We are excited to merge with ElectraMeccanica and accelerate the growth of the combined
company. Throughout the process, we have been impressed with ElectraMeccanica's management team and strongly believe that ElectraMeccanica’s
complementary assets, skills and capital will further enhance our advantages in this large and rapidly growing market.”
Susan Docherty, Chief Executive Officer of ElectraMeccanica, added,
“We are incredibly excited to partner with Tevva given their unique engineering expertise in an essential segment of a large and
growing market. We believe this is the right time and Tevva is the right partner with which to pivot from consumer vehicles to commercial
vehicles and respond to commercial fleet customer demand for superior, reliable and cost-efficient trucks. The complementary operations
of the two companies and our similar values and mission give me complete confidence we can jointly create significant shareholder value.
Tevva is extremely well positioned in the U.K. and European market and our world-class manufacturing facilities, combined experienced
senior executive team and balance sheet will help take our combined company to the next level.”
Steven Sanders, Chairman of the ElectraMeccanica Board of Directors,
added, “By partnering with Tevva, we are providing our shareholders with a unique opportunity to participate in the accelerated
and technology-driven growth prospects of the combined company in ways that also logically extend and leverage ElectraMeccanica’s
existing assets and strengths.”
Tevva’s Focus on the Commercial Truck Market
Since its founding in 2013, Tevva has
focused on providing innovative zero-emission technology solutions for the urban delivery market. Tevva targeted this market given its
size, rapid growth rate and its impact on the environment. Commercial vehicles, which stop frequently and largely operate in urban areas,
are a significant source of greenhouse gas emissions. Transportation is one of the largest contributors to CO2 emissions globally,
and medium- and heavy-duty vehicles account for 22% of the transportation industry’s emissions. While many fleet operators
recognize the benefits zero-emission vehicles deliver, they also need reliable and cost-effective solutions. Tevva’s products have
demonstrated their reliability and ability to provide customers with a compelling return on investment. Tevva has built a commercial
vehicle ecosystem alongside its technical partners, including strategic investor Bharat Forge, with which it has worked with since 2018,
to tailor its products to the needs of its customers accordingly.
Proposed Transaction Details
The proposed transaction with ElectraMeccanica and Tevva is the culmination
of a formal process initiated by ElectraMeccanica’s Board of Directors (“ElectraMeccanica Board”) to explore a range
of possible strategic alternatives for optimizing ElectraMeccanica’s assets and generating sustained shareholder value while still
managing potential risks. Following the completion of a comprehensive process in which Tevva and others were thoroughly evaluated, the
Strategic Committee of the Board of Directors of ElectraMeccanica, comprising Steven Sanders (Chairman), Mike Richardson (Vice Chairman)
and Dietmar Ostermann (Director), made a unanimous, formal recommendation to ElectraMeccanica’s Board of Directors to pursue a
combination with Tevva and proceed with the proposed transaction.
Upon the closing of the proposed transaction, ElectraMeccanica shareholders
will own 23.5% of the combined company and Tevva shareholders will own 76.5% of the combined company on a fully diluted basis. The combined
company expects to have a cash balance of approximately $70 - 80 million, with debt of approximately $26 million.
At closing of the proposed transaction, the combined company will
operate as Tevva, Inc., and is expected to be domiciled in Delaware. It is anticipated that the combined company and its shares will
trade on The Nasdaq Capital Market under the ticker symbol TVVA, subject to the receipt of all applicable Nasdaq approvals.
The combined company is expected to benefit from the acceleration
of Tevva’s U.S. market entry, supported by the complementary platform, team, and assets of ElectraMeccanica, in addition to anticipated
long-term reductions in material costs. The transaction is also expected to deliver approximately $5 million in run-rate annual cost
savings by year-end 2024.
The Board of Directors of the combined company will consist of nine
directors, comprising five directors from Tevva and four directors from ElectraMeccanica, of which seven are expected to be deemed independent.
The senior executive team of the combined company will reflect the
significant talent and experience at the leadership level of both companies. Following the completion of the proposed transaction, it
is expected that Susan E. Docherty will become Chief Executive Officer of the combined company. Ms. Docherty joined ElectraMeccanica
in December 2022 as CEO and has over 40 years of senior leadership experience, including 30 years of international automotive experience
at General Motors where she held a number of senior roles including President and Managing Director of Chevrolet/Cadillac Europe, Vice
President of International Operations, Sales, Marketing and Aftersales in China, and Vice President of U.S. Sales, Service and Marketing.
Ms. Docherty also serves as a Board Director of The Brink’s Company. It is also expected that David Roberts, who has served as
a Board Director for Tevva for three years, will become Executive Chairman of the combined company. Mr. Roberts is a recognized expert
in the industrial, transportation and clean energy sectors and in addition to his role at Tevva, Mr. Roberts chairs the Board of Directors
of TAE Technologies (a commercial fusion energy developer) and Evtec Group (an automotive supply chain company). Previously, he held
executive positions with Chrysler and Aston Martin Lagonda. During his time at Tevva, Mr. Roberts has overseen Tevva’s rapid growth
through commercialization and managed key supplier, partner, and customer relationships globally.
The proposed transaction will be completed, subject to the definitive
arrangement agreement, by way of a court-approved plan of arrangement under the Business Corporations Act (British Columbia), whereby
a newly formed British Columbia corporation (“Tevva, Inc.”), created to manage and hold the combined business of ElectraMeccanica
and Tevva, will, directly and indirectly, acquire all of the issued and outstanding equity securities of ElectraMeccanica and Tevva.
In addition, concurrent with the announcement of the proposed merger,
the Board of ElectraMeccanica has approved, under certain conditions, the provision of a $6 million credit facility to Tevva which can
be drawn in whole or in part until the closing of the proposed transaction. If drawn, the credit facility is intended to provide
Tevva with additional working capital to accelerate delivery of commercial vehicles to fleet customers.
The proposed transaction is expected to close in the fourth quarter
of 2023, following the satisfaction or waiver of closing conditions, including, among others, required approvals of ElectraMeccanica’s
and Tevva’s shareholders of the proposed transaction, the approval of the Supreme Court of British Columbia of the proposed transaction,
and the conditional approval for the shares of the Resulting Issuer to be listed on of Nasdaq.
All Officers and Directors of ElectraMeccanica
support the transaction and have entered into support and voting agreements (subject to certain rights of withdrawal) for all of their
shares, including ElectraMeccanica’s founder and largest shareholder. This cumulatively represents 9.67 million shares, or approximately
7.89% of ElectraMeccanica’s outstanding shares. In addition, the aforementioned ElectraMeccanica shareholders and key shareholders
of Tevva (representing 49% of Tevva’s current shares outstanding), have entered into lock-up agreements in connection with the
proposed transaction, which will subject them to a 180-day restricted period, subject to certain release exemptions based on the trading
level of the combined company’s stock price.
In connection with the proposed transaction, ElectraMeccanica anticipates
filing a proxy statement and management information circular (the “Circular”) in connection with a special meeting of holders
of ElectraMeccanica common shares expected to be held in the third quarter of this year to approve the proposed transaction.
Advisors
Greenhill & Co. Canada Ltd. is serving as financial advisor to
ElectraMeccanica and also provided a fairness opinion to the ElectraMeccanica Board in connection with the proposed transaction. Snell
& Wilmer L.L.P., McCarthy Tétrault LLP and Fox Williams LLP are serving as legal counsel to ElectraMeccanica in connection
with the proposed transaction.
Lucosky Brookman LLP and Gowling WLG are acting as legal counsel to
Tevva in connection with the proposed transaction.
Joint Investor Call Information
https://app.webinar.net/O5BjxP7wgpW
Proxy Solicitor Information and Shareholder Questions
ElectraMeccanica shareholders who have
questions should contact ElectraMeccanica’s strategic shareholder advisors and proxy solicitation agents: Mackenzie Partners (for
the United States) or Laurel Hill Advisory Group (for Canada), or reach out to John Franklin, Investor Relations Counsel to ElectraMeccanica
at: IR@emvauto.com
United States |
Canada |
Mackenzie Partners
1-800-322-2885 (toll-free in North America)
1-212-929-5500 (outside of North America)
proxy@mackenziepartners.com |
Laurel Hill Advisory Group
1-877-452-7184 (toll-free in North America)
1-416-304-0211 (outside of North America)
assistance@laurelhill.com |
About Tevva
Tevva is disrupting zero-emission commercial transport with revolutionary
battery electric and hydrogen fuel-cell range extender technology. Tevva trucks optimize range, safety, driver experience, and total
ownership cost while significantly reducing the environmental impact of urban delivery. Tevva has designed a range of electric vehicles
across the medium- to heavy-duty commercial vehicle space, and already has vehicles in operation on public roads with customers.
About ElectraMeccanica
ElectraMeccanica (NASDAQ: SOLO)
is a designer and assembler of environmentally efficient electric vehicles that will enhance the urban driving experience, including
commuting, delivery and shared mobility. ElectraMeccanica recently commissioned its state-of-the-art 235,000 square-foot manufacturing
facility in Mesa, Arizona to produce and assemble electric vehicles, including through contract manufacturing.
Additional Information and Where to Find It
In connection with the proposed merger,
ElectraMeccanica intends to file with the U.S. Securities and Exchange Commission (the “SEC”) preliminary and definitive
Circulars relating to the proposed transaction and other relevant documents. The definitive Circular will be mailed to ElectraMeccanica’s
shareholders as of a record date to be established for voting on the proposed transaction and any other matters to be voted on at the
special meeting. BEFORE MAKING ANY VOTING DECISION, INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE PRELIMINARY AND DEFINITIVE CIRCULARS,
ANY AMENDMENTS OR SUPPLEMENTS THERETO AND ANY OTHER DOCUMENTS TO BE FILED WITH THE SEC IN CONNECTION WITH THE PROPOSED TRANSACTION OR
INCORPORATED BY REFERENCE IN THE CIRCULARS WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT ELECTRAMECCANICA,
TEVVA AND THE PROPOSED TRANSACTION. Investors and security holders may obtain free copies of these documents (when they are available)
on the SEC’s website at www.sec.gov, on the Canadian Securities Administrators website at www.sedar.com, on
ElectraMeccanica’s website at https://ir.emvauto.com/ or by contacting ElectraMeccanica’s Investor Relations via email
at IR@emvauto.com.
Participants in the Solicitation
ElectraMeccanica and its Directors and certain of its Executive Officers
may be deemed participants in the solicitation of proxies from the shareholders of ElectraMeccanica in connection with the proposed transaction
and any other matters to be voted on at the special meeting. Information regarding the names, affiliations and interests of such Directors
and Executive Officers will be included in the preliminary and definitive Circulars (when available). Additional information regarding
such Directors and Executive Officers is included in ElectraMeccanica’s Annual Report on Form 10-K for the year ended December
31, 2022, which was filed with the SEC on April 17, 2023. Information regarding the persons who may, under SEC rules, be deemed participants
in the solicitation of proxies of ElectraMeccanica’s shareholders in connection with the proposed transaction and any other matters
to be voted upon at the special meeting will be set forth in the preliminary and definitive Circulars (when available).
These documents will be available free of charge as described in the
preceding paragraph.
Non-Solicitation
This communication will not constitute an offer to sell or the solicitation
of an offer to sell or the solicitation of an offer to buy any securities, nor will there be any sale of securities in any jurisdiction
in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such
jurisdiction.
Safe Harbor Statement
This press release and related comments by Management of ElectraMeccanica
and Tevva include “forward-looking statements” within the meaning of U.S. federal securities laws and applicable Canadian
securities laws. Forward-looking statements may be identified by words or expressions such as “expects,” “anticipates,”
“intends,” “plans,” “believes,” “estimates,” “may,” “will,” “projects,”
“could,” “should,” “would,” “seek,” “forecast,” or other similar expressions.
Forward-looking statements represent current judgments about possible future events, including, but not limited to statements regarding
expectations or forecasts of business, operations, financial performance, prospects, and other plans, intentions, expectations, estimates,
and beliefs relating to the proposed transaction between ElectraMeccanica and Tevva, such as statements regarding the combined operations
and prospects of ElectraMeccanica and Tevva, the current and projected market, growth opportunities and synergies for the combined company,
targets for 2028 revenue and EBITDA margins, geographic expansion plans, expectations and intentions with respect to the $6
million credit facility provided by ElectraMeccanica to Tevva, the expected composition of the Management and Board of Directors
of the combined company, the expected trading of the combined company on The Nasdaq Capital Market, and the timing and completion of
the proposed transaction, including the satisfaction or waiver of all the required conditions thereto. These forward-looking statements
are based upon the current beliefs and expectations of the management of ElectraMeccanica and Tevva and are subject to known and unknown
risks and uncertainties. Factors that could cause actual events to differ include, but are not limited to:
| ● | the ability of the combined
company to further penetrate the U.K. and EU markets, and start operations in the U.S. market
with Tevva’s commercial vehicles without having any prior experience selling Tevva’s
vehicles in the U.S. market; |
| ● | the total addressable market
of ElectraMeccanica, Tevva and of the combined business; |
| ● | general economic conditions
in the markets where ElectraMeccanica and Tevva operate and where the combined company will
operate; |
| ● | the expected timing of regulatory
approvals relating to the proposed transaction, the businesses of ElectraMeccanica and Tevva
and of the combined company and product launches of such businesses and companies; |
| ● | non-performance of third-party
vendors and contractors; |
| ● | risks related to the combined
company’s ability to successfully sell its products and the market reception to and
performance of its products; |
| ● | ElectraMeccanica’s
and the combined company’s compliance with, and changes to, applicable laws and regulations; |
| ● | ElectraMeccanica’s
and the combined company’s limited operating history; |
| ● | the combined company’s
ability to manage growth; |
| ● | the combined company’s
ability to obtain additional financing; |
| ● | the combined company’s
ability to expand product offerings; |
| ● | the combined company’s
ability to compete with others in its industry; |
| ● | the combined company’s
ability to protect our intellectual property; |
| ● | ElectraMeccanica’s
and the combined company’s ability to list the common stock of the combined company
on Nasdaq; |
| ● | ElectraMeccanica’s
and the combined company’s ability to defend against legal proceedings; |
| ● | the combined company’s
success in retaining or recruiting, or changes required in, our Officers, key employees or
Directors; |
| ● | the ability to successfully
integrate the businesses of ElectraMeccanica and Tevva after the completion of the proposed
transaction; |
| ● | the combined company’s
ability to achieve the expected benefits from the proposed transaction within the expected
time frames or at all; |
| ● | the incurrence of unexpected
costs, liabilities or delays relating to the proposed transaction; |
| ● | the
risk that if the proposed transaction does not close that Tevva is unable to repay the $6
million credit facility provided by ElectraMeccanica; |
| ● | the risk that the proposed
transaction may not be accretive to ElectraMeccanica’s shareholders; and |
| ● | other economic, business,
competitive, and regulatory factors affecting the businesses of the companies generally,
including but not limited to those set forth in ElectraMeccanica’s filings with the
SEC, including in the “Risk Factors” section of ElectraMeccanica’s Annual
Report on Form 10-K filed with the SEC on April 17, 2023, and its subsequent SEC filings. |
Readers are cautioned not to place undue reliance on forward-looking
statements. It is uncertain whether any of the events anticipated by the forward-looking statements will transpire or occur, or if any
of them do, what impact they will have on the results of operations and financial condition of ElectraMeccanica or the combined company.
Forward-looking statements speak only as of the date they are made, and ElectraMeccanica, Tevva and the combined company undertake no
obligation to update publicly or otherwise revise any forward-looking statements, whether as a result of new information, future events,
or other factors that affect the subject of these statements, except where they are expressly required to do so by law.
Contacts
Investors:
ElectraMeccanica Contact:
John Franklin
ir@emvauto.com
Tevva Contact:
investment@Tevva.com
Media:
ElectraMeccanica Contact:
John Franklin
ir@emvauto.com
Tevva Contact:
pr@Tevva.com
Board of Directors Upon Closing of Proposed
Transaction
Upon the closing of the proposed transaction, it is anticipated that
the Board of Directors of the combined company will include:
| ● | Laura Dempsey Brown,
who has served on the Tevva Board of Directors since 2021 and chairs the Audit and Remuneration
Committees, also currently serves on the Board of Directors of Helios Technologies, a U.S
listed global hydraulics and electronics manufacturer. She chairs the Audit committee and
serves on the Nominating committee, previously serving on ESG and Compensation. She retired
from Grainger in 2018. She was named Senior Vice President, Communications and Investor Relations
in 2010. Prior to her SVP role, Ms. Brown served as Vice President of Marketing and various
Vice President of Finance roles since joining in 2000. Prior to Grainger, Ms. Brown was a
Vice President at Alliant Foodservice and at Dietary Products at Baxter. |
| ● | Susan E. Docherty,
who joined ElectraMeccanica in December 2022 as Chief Executive Officer and interim COO,
is expected to become CEO of the combined company. Ms. Docherty has a unique understanding
of how to connect consumer behaviors to brands and business models inside the auto/EV industries
as well as outside. She forged a storied global career at GM with over three decades at the
automaker, during which she launched, breathed new life into dozens of vehicle brands ranging
from Cadillac to Hummer, to the Electric Chevrolet Volt across the US, the EU and China.
She added significant depth to her experience starting in 2008 as one of the most senior
frontline sales executives to help lead the company through its emergence from the financial
crisis, a government bailout and bankruptcy. |
Beginning with her appointment as the first-ever auto industry
female Vice President of Sales, Service & Marketing in 2009, Susan’s diverse responsibilities came to include overseeing sales,
service, marketing, product and manufacturing operations in various countries. While overseeing International Operations for GM starting
in 2010, she was responsible for its largest growth region, driving volume and revenue increases to 700k units and $45 billion respectively.
More recently, Susan diversified her credentials by engineering
the turnaround and expansion of Canyon Ranch, the iconic 40-year-old lifestyle and wellness brand. During her four-year tenure at the
company as CEO, she restructured operations and pursued new adjacent growth opportunities. Her initiatives improved top-line growth by
over 30% and improved profits by 80%. Susan also broadened her governance and oversight credentials and currently serves on the Board
of Directors for NYSE-listed Brinks Company as well as the private-equity-backed J&J Ventures Gaming. Susan is a graduate of Stanford
University with a Master of Science in Business.
| ● | Ian Harnett, who
has served as Chairman of the Tevva Board or Directors since August 2021. Mr. Harnett has
more than 40 years’ experience in the automotive industry. Prior to joining Tevva,
he served as Executive Director of Human Resources and Global Purchasing at Jaguar Land Rover.
Previously he was responsible for the establishment of the new Strategic Business Office
at Jaguar Land Rover, as well as heading the Transition Team as Jaguar Land Rover (JLR) was
divested from Ford Motor Company. Mr. Harnett joined British Leyland in 1982 starting in
the Purchasing Department at Longbridge and spent the next 25 years in various Purchasing/Project
roles--including assignments with subsequent owners of Rover Group. For a number of years
Ian was responsible for Honda Contracts and later headed a joint Purchasing team in BMW/Rover.
During his time within the Ford organization, Ian spent three years based in Cologne (Germany)
managing the Chassis and Raw Materials Purchasing team for Ford of Europe, Volvo and JLR. |
| ● | Luisa Ingargiola,
who has a diverse experience in capital markets with public companies. Luisa is currently
the Chief Financial Officer of Avalon GloboCare, a leading biotech healthcare company that
is developing cell-based therapeutic and diagnostic technologies for cancer and other diseases.
Luisa also serves as a Director and Audit Chair of AgEagle, a leading provider of innovative
technology-orientated solutions for drone delivery systems. Luisa also serves as Board Director
and Audit Chair for BioCoreX a biotech company developing innovative solutions for treatments
of addictions. In addition, Luisa has served as Audit Chair for several public companies
in the technology, environmental and energy industries. Luisa is a graduate of the University
of Boston with a Bachelor of Science in Finance. Luisa also has a Master of Health Administration
from the University of South Florida. |
| ● | David Morris, who
has served as a non-executive director at Tevva since August 2020. He is a senior executive
with deep financial expertise and a strong background in managing an extensive international
property portfolio. David began his business career at Bankers Trust before playing an instrumental
role in establishing Brewin Dolphin’s Investment Trust Division. He spent 20 years
as the Principal in his family office, acting as a Director or advisor to private and publicly
listed companies in the UK, US, and Israel across FMCG, clothing, technology, and finance. |
| ● | Dietmar Ostermann,
who brings 33 years of automotive consulting experience to ElectraMeccanica. Mr. Ostermann
consulted to many of the top OEMs, including GM, Ford, Stellantis, Rivian, BMW, Mercedes,
VW, Nissan and Hyundai as well as many auto suppliers on topics of business strategy, product
development and operations improvement. Mr. Ostermann served as PWC’s Global and US
Auto Advisory Leader based in Detroit, MI for 11 years. Prior to PwC, he led the global auto
practice of management consulting firm PRTM in Boston. Prior to that he spent 17 years at
top management consulting firm A.T.Kearney in the US and Germany, which he also led as their
CEO for three years. Mr. Ostermann serves as an independent director for auto suppliers Shape
Corp in Grand Haven, MI and North American Stamping Group in Nashville, TN. |
| ● | Mike Richardson,
who brings four decades of global automotive experience, working in Original Equipment Manufacturers
and Tier 1 system suppliers. Prior to joining ElectraMeccanica, Mike served as president
and Board Director of Nexteer Automotive. He worked regionally in Europe & Asia for eight
years, overseeing a comprehensive restructuring of both product portfolio & manufacturing
footprint. Mike retired from Nexteer Automotive as President and Executive Board Director
in 2019. He continues to serve on the boards of Dura Automotive and Shape Corporation. Mr.
Richardson holds a bachelor’s degree in mechanical engineering from Kettering University
and a master’s degree in business administration from Central Michigan University.
He also holds a Master Level Professional Board Director Certification from the American
College of Corporate Directors. He has been recognized as a Professional Engineer, Certified
Quality Engineer and unlimited-rating Stationary Power Engineer. Mike has authored numerous
intellectual properties impacting both product & process. He is a Boss Kettering Innovation
Award recipient, GM President’s Award winner and Delphi Inventors Hall of Fame inductee. |
| ● | David Roberts, who
has been a Director at Tevva since 2020 and will be named Executive Chairman of the combined
company. Mr. Roberts is a veteran industrialist with over 40 years in the automotive and
aerospace sectors. He is a Black Belt Lean Sensei and one of the founders of the LEI. His
key strengths are prescriptive and evolutionary strategy with strong strategic vision and
motivation skills ideally suited for resolving business issues with a Global network of business
relationships. He has strong experience with international operations and markets, commercialization
of nascent technologies, MBOs/MBIs and Mergers & Acquisitions. He has a close working
relationship with UK Government on UK automotive sector, especially supply chain growth and
expansion. |
David has over 30 years’ experience
in manufacturing, particularly within the automotive and aerospace sectors. He is Chair of TAE Power Solutions (the world’s leading
technology ecosystem that enables the most versatile, powerful, efficient and reliable Electric Vehicles, ePowertrains, Ultrafast Charging
systems for home and commercial use and Energy Storage Systems). He Chairs a number of companies including Evtec Group (the UK's largest
employer of disabled people), Tevva Trucks, Evera Recruitment Ltd (Europe's leading recruitment company in the EV and battery sector)
and Evtec Energy PLC (a green renewables provider of energy systems).
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