Item 6. Indemnification of Directors and Officers
Under
the Business Corporations Act (British Columbia) (“BCA”), a company may indemnify a director or officer, a former
director or officer, or a person who acts or acted at the company’s request as a director or officer, or an individual acting
in a similar capacity, of another entity, which we refer to as an eligible party, against all costs, charges and expenses, including
an amount paid to settle an action or satisfy a judgment, reasonably incurred by him or her in respect of any civil, criminal,
administrative, investigative or other proceeding in which he or she is involved because of that association with the company
or other entity, if: (1) the individual acted honestly and in good faith with a view to the best interests of such company or
the other entity, as the case may be; and (2) in the case of a proceeding other than a civil proceeding, the individual had reasonable
grounds for believing that the individual’s conduct was lawful. A company cannot indemnify an eligible party if it is prohibited
from doing so under its articles, even if it had agreed to do so by an indemnification agreement (provided that the articles prohibited
indemnification when the indemnification agreement was made). A company may advance the expenses of an eligible party as they
are incurred in an eligible proceeding only if the eligible party has provided an undertaking that, if it is ultimately determined
that the payment of expenses was prohibited, the eligible party will repay any amounts advanced. On application from an eligible
party, a court may make any order the court considers appropriate in respect of an eligible proceeding, including the indemnification
of penalties imposed or expenses incurred in any such proceedings and the enforcement of an indemnification agreement.
The
Registrant’s amended and restated articles (the “Articles”) require the Registrant to indemnify an eligible
party and his or her heirs and legal personal representatives against all eligible penalties to which such person is or may be
liable, and the Registrant must after final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred
by such person in respect of that proceeding. Each eligible party is deemed to have contracted with the Registrant on the terms
of the indemnity contained in the Articles. Subject to the BCA, the Registrant may also indemnify any other person. In addition,
the Articles specify that failure of an eligible party to comply with the provisions of the BCA or the Articles, or if applicable,
any former legislation or articles, will not invalidate any indemnity to which he or she is entitled. The Articles also allow
for the Registrant to purchase and maintain insurance for the benefit of specified eligible parties.
The
Registrant entered into indemnity agreements with the Registrant’s directors and certain officers (the “Nominees”).
Subject to certain limited exceptions, the indemnity agreements provide indemnification for all liabilities or obligations imposed
upon or incurred by each Nominee and his or her heirs, executors, administrators and personal representatives (each, an “indemnitee”
and, collectively, the “indemnitees”) at law, in equity or under any statute or regulation and all expenses in relation
to any claim, action, proceeding, investigation, or order whether civil, criminal or administrative and whether made or commenced
by any person by reason of: (i) the Nominee being or having been a director, alternate director, officer or a person in an equivalent
position of the Registrant or any associated corporation (as defined in the BCA), or (ii) any act or omission, whether or not
negligent, of the Nominee acting as a director, alternate director, officer or a person in an equivalent position of the Registrant
or any associated corporation, including without limitation, legal fees and disbursements and all costs of investigation and defense
incurred by the indemnitees as permitted by applicable law and pursuant to the indemnity agreement.
The
Registrant may purchase insurance policies relating to certain liabilities that our directors and officers may incur in such capacity.
Item
9. Undertakings
(a)
The undersigned Registrant hereby undertakes:
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(1)
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To
file, during any period in which offers or sales are being made, a post-effective amendment to this Post-Effective Amendment:
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(i)
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to
include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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to
reflect in the prospectus any facts or events arising after the effective date of this Post-Effective Amendment (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in this Post-Effective Amendment; and
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(iii)
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to
include any material information with respect to the plan of distribution not previously disclosed in this Post-Effective Amendment
or any material change to such information in this Post-Effective Amendment.
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provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Post-Effective Amendment.
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(2)
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That,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
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(3)
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To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at
the termination of the offering.
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(b)
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing
of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in this Post-Effective Amendment shall be deemed to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
The undersigned Registrant hereby undertakes that, insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Registrant, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant
of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
EXHIBITS
Exhibit No.
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Description
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3.1
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Amended and Restated Articles of Clever Leaves Holdings Inc. (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K (File No. 001-39820) filed with the Commission by the Registrant on December 23, 2020).
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4.1
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Specimen Common Share Certificate of Clever Leaves Holdings Inc. (incorporated by reference to Exhibit 4.4 to Amendment No. 2 to the Registration Statement on Form S-4 (File No. 333-241707) filed with the Commission by the Registrant on November 9, 2020).
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4.2
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Specimen Warrant Certificate of Clever Leaves Holdings Inc. (incorporated by reference to Exhibit 4.5 to Amendment No. 2 to the Registration Statement on Form S-4 (File No. 333-241707) filed with the Commission by the Registrant on November 9, 2020).
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4.3
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Warrant Agreement, dated December 10, 2018, between Schultze Special Purpose Acquisition Corp. and Continental Stock Transfer & Trust Company (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-38760) filed with the Commission by Schultze Special Purpose Acquisition Corp. on December 14, 2018).
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4.4
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Assignment, Assumption and Amendment Agreement, dated as of December 18, 2020, among Clever Leaves Holdings Inc., Schultze Special Purpose Acquisition Corp. and Continental Stock Transfer & Trust Company (incorporated by reference to Exhibit 4.4 of the Current Report on Form 8-K (File No. 001-39820) filed with the Commission by the Registrant on December 28, 2020).
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5.1*
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Opinion of Dentons Canada LLP, counsel to the Registrant, regarding the legality of the securities being offered hereby (including consent).
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10.1
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Clever Leaves International Inc. (f/k/a Northern Swan Holdings, Inc.) 2018 Omnibus Incentive Compensation Plan (incorporated by reference to Exhibit 10.31 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-241707) filed with the Commission by the Registrant on September 11, 2020).
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10.2
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Amendment No. 1 to Clever Leaves International Inc. (f/k/a Northern Swan Holdings, Inc.) 2018 Omnibus Incentive Compensation Plan (incorporated by reference to Exhibit 10.32 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-241707) filed with the Commission by the Registrant on September 11, 2020).
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10.3
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Amendment No. 2 to Clever Leaves International Inc. (f/k/a Northern Swan Holdings, Inc.) 2018 Omnibus Incentive Compensation Plan (incorporated by reference to Exhibit 10.33 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-241707) filed with the Commission by the Registrant on September 11, 2020).
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10.4*
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Form of Non-Plan Stock Option Grant Agreement.
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23.1*
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Consent of BDO Canada LLP.
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23.2*
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Consent of Marcum LLP.
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23.3*
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Consent of Dentons Canada LLP (included in Exhibit 5.1).
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24.1
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Power of Attorney (incorporated by reference to the signature page to the Post-Effective Amendment No. 1 on Form S-8 (File No. 333-241707) filed with the Commission by the Registrant on February 26, 2021).
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