Forte Group Holdings Inc. - M&A Activity 2021

ACQUISITION AGREEMENT

THIS AGREEMENT is dated the 19th day of September, 2021.

B E T W E E N:

EMBARK HEALTH INC. , a corporation incorporated under the laws of Canada (the “ Company ”)

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1323977 B.C. LTD , a corporation incorporated under the laws of the Province of British Columbia (“ Subco ”)

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BEVCANNA ENTERPRISES INC. , a corporation incorporated under the laws of the Province of British Columbia (the “ Purchaser ” or “ BevCanna ”)

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BRUCE DAWSON-SCULLY , in his capacity as shareholder representative and not in his personal capacity (“ Shareholder Representative ”)

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THE VENDORS (as defined herein)

WHEREAS the Purchaser and the Company desire to effect the acquisition by the Purchaser of all of the issued and outstanding common shares of the Company, collectively, the “ Embark Common Shares ”) from the holders thereof in exchange for the issuance by the Purchaser of Purchaser Common Shares and Earn-Out Shares (as defined herein) to such holders of Embark Common Shares at Closing (as defined herein) (the “ Acquisition ”);

AND WHEREAS the Company, Subco and the Purchaser intend to effect the Acquisition by way of the continuation of the Company pursuant to the Continuation (as defined herein) and the Amalgamation (as herein defined);

AND WHEREAS it is the express intention of the parties hereto to enter into this Agreement and to effect the transactions contemplated hereof;

NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual covenants and agreements herein contained and of other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree, each with the others, as follows:

ARTICLE I DEFINITIONS AND MISCELLANEOUS

1.01 In this Agreement (including the preamble, recitals and each Schedule hereto), the following terms have the meanings ascribed thereto as follows:

“ 1933 Act ” means the United States Securities Act of 1933, as amended.

“ Acquisition ” has the meaning given to that term in the recitals hereof.

“ Acquisition Proposal ” with respect to the Company means, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry (written or oral) from, or public announcement by, any Person or group of Persons (other than the Purchaser and/or one or more of its wholly-owned Subsidiaries) whether or not delivered to the shareholders of the Company, after the date of this Agreement relating to:

any sale or disposition, direct or indirect, of assets (including voting, equity or other securities of Subsidiaries) or joint venture, partnership or similar transaction representing 50% or more of the consolidated assets or contributing 50% or more of the consolidated revenue of the Company and its Subsidiaries, or of 50% or more of the voting or equity securities (or rights or interests in such voting or equity securities) of the Company or any of its Subsidiaries whose assets, individually or in the aggregate, represent 50% or more of the consolidated assets of the Company and its Subsidiaries;
any direct or indirect take-over bid, exchange offer, issuance of securities or other transaction that, if consummated, would result in a Person or group of Persons beneficially owning or having the right to acquire 50% or more of any class of voting or equity securities of the Company on a fully-diluted basis;
any plan of arrangement, merger, amalgamation, consolidation, share exchange, debt exchange, business combination, reorganization, joint venture, partnership or similar transaction, recapitalization, liquidation, dissolution or winding up or similar transaction involving the Company or any of its Subsidiaries that, if consummated, would result in a Person or group of Persons beneficially owning 50% or more of the voting or equity securities of the Company or of the surviving entity or the resulting direct or indirect parent of the surviving entity; or
any other similar transaction or series of transactions involving the Company or any of its Subsidiaries,

provided that notwithstanding the above the sale of the shares of Embark Woodstock Inc. or the sale of the Woodstock Facility by the Company pursuant to the Woodstock MOA will not constitute an Acquisition Proposal for the purposes of this Agreement.

“ Act ” means the Securities Act (Ontario).

“ Adjusted EBITDA ” means, with respect to any Calculation Period, the net income before interest, income taxes, depreciation and amortization of Amalco for such period, determined in

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accordance with IFRS but applied and calculated in a manner consistent with the EBITDA calculation derived from the Annual Financial Statements for the most recent financial year end, adjusted to deduct (a) Return on Capital Expenditures, and (b) Marketing Expenses.

“ Affiliate ” has the meaning specified in the CBCA on the date of this Agreement.

“ Agreed Amount ” has the meaning specified in Section 15.08.

“ Agreement ” means this Agreement and any instrument supplemental or ancillary hereto; and the expressions “Article, “section”, and “subsection” followed by a number means and refers to the specified Article, section or subsection of this Agreement.

“ Amalco ” means the amalgamated entity to be formed as a result of the Amalgamation under the corporate name of “Embark Health Inc.”.

“ Amalco Articles ” means the articles of Amalco which will be in effect at the Effective Time, substantially in the form attached hereto as Schedule “H”.

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

“ Amalgamating Parties ” means the Company and Subco.

“ Amalgamation ” means the amalgamation of Subco and the Company in accordance with the terms of this Agreement and the BCBCA.

“ Amalgamation Application ” means the amalgamation application substantially in the form attached hereto as Schedule “I”, containing the information that is to be included in the amalgamation application to be filed with the Registrar under Section 275(1)(a) of the BCBCA.

“ Ancillary Agreements ” means all agreements, certificates and other instruments delivered or given pursuant to this Agreement, including the Employment Agreements, the Non-Competition Agreements, the Closing Escrow Agreement and the Indemnity Escrow Agreement.

“ Annual Financial Statements ” means the Company’s 2019 Financial Statements and the Company’s 2020 Financial Statements.

“ Applicable Law ” means any domestic statute, law (including the common law), ordinance, rule, regulation, restriction, by-law, order, or any consent, exemption, approval or licence of any Governmental Authority, including the Cannabis Act (Canada) and its regulations, and Securities Laws that (as the context requires) applies in whole or in part to the Acquisition, the Amalgamation, the Company, the Purchaser or their respective Affiliates and Assets.

“ Assets ” means the property and assets of the Company or the Purchaser and each of their respective Subsidiaries, as the case may be, as a going concern, of every kind and description and wheresoever situated.

“ Authorizations ” means licences, certificates, approvals, consents, notices, clearances, authorizations, permits and supplements or amendments thereto required by Applicable Laws.

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“ BCBCA ” means the Business Corporations Act (British Columbia) Act as may be amended from time to time.

“ BevCanna Resolution ” means the special resolution of the shareholders of BevCanna approving the creation of a new class of preferred shares, issuable in series, substantially in the form attached hereto as Schedule “J”.

“ Business ” means Embark’s Business or Purchaser’s Business, as applicable.

“ Business Day ” means any day, other than a Saturday, Sunday or statutory or civic holiday in the Province of Ontario or the Province of British Columbia.

“ CBCA ” means the Canada Business Corporations Act as may be amended from time to time.

“ Calculation Periods ” means each of the financial years of Amalco ending on December 31, 2022, 2023 and 2024, respectively.

“ Certificate of Amalgamation ” means the certificate of amalgamation issued by the Registrar.

“ Claimed Amount ” has the meaning specified in Section 15.08.

“ Claims ” means any suit, action, dispute, civil or criminal litigation, claim, arbitration or legal, administrative or other proceeding or governmental investigation, including appeals and applications for review.

“ Claim Notice ” has the meaning specified in Section 15.07(a).

“ Closing ” means the completion of the transactions contemplated herein on the Effective Date.

“ Closing Escrow Agent ” means Olympia Trust Company.

“ Closing Escrow Agreement ” means the escrow agreement to be entered into as of the Effective Date between the Purchaser, Subco, the Shareholder Representative and the Closing Escrow Agent in substantially the same form attached hereto as Schedule “C”, with such modifications as reasonably requested by the Closing Escrow Agent and customary for escrow agreements of this nature.

“ Closing Payment Shares ” means the Purchaser Common Shares issued to the Embark Shareholders at Closing as contemplated by this Agreement.

“ Closing Value ” means $21,000,000;

“ Closing Working Capital ” means (a) the Current Assets of the Corporation, less (b) the Current Liabilities of the Corporation, determined as of the Effective Time. Schedule “D” sets out an illustrative example for how Closing Date Working Capital will be calculated for the purposes of Article II.

“ Closing Working Capital Statement ” has the meaning set forth in Section 2.02(a)(i).

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“ Company ” has the meaning given to the term in the preamble hereof.

“ Company Indemnified Parties ” means the Embark Shareholders and the Company’s directors, officers, employees, agents and representatives, and “ Company Indemnified Party ” means any one of them.

“ Continuation ” means the continuation of the Company from the CBCA to the BCBCA in accordance with Section 302 of the BCBCA.

“ Continuation Application ” means the continuation application, substantially in the form attached hereto as Schedule “K”.

“ Continuation Articles ” means the articles, substantially in the form attached hereto as Schedule “L”, that the Company will have once it is continued into British Columbia in accordance with the BCBCA and prior to the Effective Time of the Amalgamation.

“ Company’s 2019 Financial Statements ” means the audited financial statements of the Company together with the auditors’ report thereon and the notes thereto as at and for the year ended December 31, 2019.

“ Company’s 2020 Financial Statements ” means the audited financial statements of the Company together with the auditors’ report thereon and the notes thereto as at and for the year ended December 31, 2020.

“ Company’s Board ” means the board of directors of the Company as may be constituted from time to time.

“ Company’s Board Recommendation ” has the meaning given to the term in section 8.03.

“ Current Assets ” means cash and cash equivalents, accounts receivable, inventory and prepaid expenses, but excluding (a) the portion of any prepaid expense of which Purchaser will not receive the benefit following the Closing; (b) deferred Tax assets; and (c) receivables from any of the Company’s Affiliates, directors, employees, officers or shareholders and any of their respective Affiliates, determined in accordance with IFRS applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the Annual Financial Statements for the most recent financial year end as if such accounts were being prepared on an audited basis as of a financial year end.

“ Current Liabilities ” means accounts payable, accrued Taxes and accrued expenses, but excluding payables to any of the Company’s Affiliates, directors, employees, officers or shareholders and any of their respective Affiliates, deferred Tax liabilities and the current portion of long term debt, determined in accordance with IFRS applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the Annual Financial Statements for the most recent financial year end as if such accounts were being prepared on an audited basis as of a financial year end.

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“ Damages ” means any loss, liability, damage, or out-of-pocket expense, (including reasonable legal fees and expenses), whether or not involving a Third Party Claim.

“ Debt ” means, without duplication, any of the following: (i) indebtedness or guarantees for borrowed money, including all indebtedness of others guaranteed by such Person or any Subsidiary thereof; (ii) all liabilities evidenced by bonds, debentures, notes, or other similar instruments or debt securities (including any debentures or notes that are convertible into any equity interests in such Person or any Subsidiary thereof); (iii) all liabilities under or in connection with letters of credit relating to indebtedness not included in the liabilities or bankers’ acceptances or similar items; (iv) all liabilities under capitalized leases; (v) all liabilities under conditional sale or other title retention agreements; (v) all liabilities with respect to vendor advances or any other advances made to such Person or any Subsidiary thereof; and (vi) all accrued interest, fees and other expenses owed with respect to the indebtedness referred to herein, including prepayment penalties, termination fees, reimbursements, indemnities, letters of credit and bankers’ acceptances and consent fees, “breakage” costs, “break fees” or similar payments or contractual charges incurred by such Persons or any Subsidiary thereof in connection with the transaction contemplated hereof, which would be payable if such indebtedness were paid in full as of the Effective Date.

“ Directed Selling Efforts ” has the meaning ascribed thereto in Regulation S.

“ Disputed Amounts ” has the meaning set forth in Section 2.02(c)(iii).

“ Dissent Rights ” means the dissent rights exercisable by the Embark Shareholders in connection with the Continuation pursuant to Section 190 of the CBCA and in connection with the Amalgamation pursuant to 272 of the BCBCA.

“ Earn-Out Calculation ” has the meaning set forth in Section 2.03(b)(i).

“ Earn-Out Calculation Delivery Date ” has the meaning set forth in Section 2.03(b)(i).

“ Earn-Out Calculation Objection Notice ” has the meaning set forth in Section 2.03(b)(ii).

“ Earn-Out Calculation Statement ” has the meaning set forth in Section 2.03(b)(i).

“ Earn-Out Multiple ” means 0.20.

“ Earn-Out Amount ” has the meaning set forth in Section 2.03(a).

“ Earn-Out Period ” means the period beginning on January 1, 2022 and ending on December 31, 2024.

“ Earn-Out Preferred Shares ” means Series A, Series B and Series C Earn-Out Preferred Shares in the capital of the BevCanna, having provisions in the articles of BevCanna substantially in the form attached hereto as Schedule “M”.

“ Earn-Out Shareholders ” means the holders, from time to time, of the Earn-Out Preferred Shares.

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“ Earnout Shares ” means the Earnout Preferred Shares issued to the Embark Shareholders at Closing as contemplated by this Agreement.

“ EBITDA Threshold ” means, with respect to any Calculation Period, the EBITDA threshold amount for such Calculation Period set forth on Schedule ”G”.

“ Effective Date ” means the effective date of the Amalgamation as evidenced on the Certificate of Amalgamation.

“ Effective Time ” means the effective time of the Amalgamation as evidenced on the Certificate of Amalgamation.

“ Embark’s Business ” means the business of the Company and its Subsidiaries, specifically the business of cannabis and hemp extraction, research and development, product manufacturing and distribution.

“ Embark Circular ” means the management information circular of the Company to be sent to the shareholders of the Company in connection with the Embark Meeting together with all documents enclosed therewith, in such form as agreed upon by the Purchaser and the Company, each acting reasonably, in accordance with Applicable Laws.

“ Embark Closing Documents ” means the documents required to be delivered to the Purchaser by the Company pursuant to section 13.02.

“ Embark Common Shares ” has the meaning given to the term in the recitals hereof.

“ Embark Compensation Securities ” means the issued and outstanding broker warrants and compensation options of the Company (not including the Embark Warrants) issued to certain brokers and finders in connection with the prior sales of the securities of the Company, with each such security exercisable to acquire one Embark Common Share pursuant to the terms of the certificate evidencing such security.

“ Embark Convertible Debentures ” means the outstanding convertible debentures of the Company, the first series of which were issued on October 6, 2020.

“ Embark Disclosure Letter ” means the disclosure letter delivered to the Purchaser concurrently with the execution and delivery of this Agreement.

“ Embark Grid Note ” means the convertible grid promissory note of the Company dated July 18, 2019.

“ Embark Meeting ” means the special meeting of the Embark Shareholders, including any adjournment or postponement thereof, for the purpose of, among other things, considering and approving the Embark Resolution;

“ Embark Options ” means options to purchase Embark Common Shares outstanding pursuant to the Embark Plans.

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“ Embark Plans ” means the 2020 omnibus equity incentive plan of the Company and the stock option plan of the Company dated May 28, 2018.

“ Embark Resolution ” means the special resolution of the Embark Shareholders approving the Continuation, the Amalgamation and the adoption of this Agreement, substantially in the form attached hereto as Schedule A.

“ Embark Shareholders ” means the holders of Embark Common Shares immediately prior to Closing.

“ Embark Shareholder Approval ” means approval of the Amalgamation by the holders of at least 66 2/3 percent of the Embark Common Shares present in person or represented by proxy at the Embark Meeting

“ Embark Warrants ” means the outstanding warrants to acquire Embark Common Shares (other than the Embark Compensation Securities).

“ Environmental Laws ” means all Applicable Laws currently in existence in Canada (whether federal, provincial or municipal) relating to the protection and preservation of the environment, occupational health and safety, product safety, product liability or hazardous substances.

“ Escrowed Closing Shares ” means Closing Payment Shares to be issued to the Embark Shareholders pursuant to this Agreement to be held in escrow by the Closing Escrow Agent subject to and in accordance with the terms of this Agreement and the Closing Escrow Agreement.

“ Escrowed Indemnity Shares ” means Closing Payment Shares to be issued to the Vendors pursuant to this Agreement to be held in escrow by the Indemnity Escrow Agent subject to and in accordance with the terms of this Agreement and the Indemnity Escrow Agreement.

“ Estimated Closing Working Capital ” has the meaning set forth in Section 2.02(a)(i).

“ Estimated Closing Working Capital Statement ” has the meaning set forth in Section 2.02(a)(i).

“ Exchange ” means the Canadian Securities Exchange or such other stock exchange on which the Purchaser Common Shares shall be listed.

“ Exchange Conditional Approval ” has the meaning ascribed thereto in Section 9.03.

“ Exchange Ratio ” means the share exchange ratio to be used in determining the number of Closing Payment Shares to be issued to Embark Shareholders at Closing, such share exchange ratio to equal the Closing Value, subject to adjustment in accordance with Section 2.02, divided by the Purchaser Share Closing Price, divided by the number of Embark Common Shares outstanding immediately prior to the Effective Time.

“ Fraud Claim ” means any claim against any one or more of the Parties resulting from, in respect of, connected with, arising out of, under, or pursuant to fraud or fraudulent misrepresentation,

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intentional misrepresentation, willful or wrongful breach or criminal conduct by such Person or Persons.

“ Governmental Authority ” means and includes, without limitation, any national, federal government, province, state, municipality or other political subdivision of any of the foregoing, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any corporation or other entity owned or controlled (through stock or capital ownership or otherwise) by any of the foregoing.

“ Hazardous Materials ” means chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products that are regulated by Environmental Laws.

“ Incentive Agreements ” means the amended and restated incentive agreements between the Company and each of Andrew Wong and Curtis Leifso dated February 21, 2021.

“ IFRS ” means International Financial Reporting Standards issued by the International Accounting Standards Board and interpretations of the IFRS Interpretations Committee.

“ Indemnified Party ” means a Purchaser Indemnified Party or a Company Indemnified Party, as the context requires.

“ Indemnifying Party ” means a party that is required to indemnify any Indemnified Party pursuant to the terms of this Agreement, provided that the Shareholder Representative shall represent the Vendors for the purposes of Sections 15.07 and 15.08.

“ Indemnity Escrow Agent ” means Clark Wilson LLP.

“ Independent Accountant ” has the meaning set forth in Section 2.02(c)(iii).

“ Intellectual Property ” means all trade or brand names, business names, trademarks, service marks, copyrights, patents, patent rights, licences, industrial designs, know-how (including trade secrets and other unpatented or unpatentable proprietary or confidential information, systems or procedures), plant-breeders rights, computer software, inventions, designs and other industrial or intellectual property of any nature whatsoever.

“ Key Employee Agreements ” means employment agreements with each of the Key Employees, in each case in a form satisfactory to the Purchaser.

“ Key Employees ” means each of the individuals listed in Schedule “B”.

“ knowledge ” in reference to:

the Purchaser or Subco means the actual knowledge of Marcello Leone and John Campbell; and
the Company means the actual knowledge of Bruce Dawson-Scully and Pushp Singh,

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after reasonable inquiry.

“ Leased Premises ” means each premises of the Company and the Purchaser, and any of their respective Subsidiaries which such Person occupies as tenants (other than Owned Premises);

“ Lien ” means any mortgage, charge, pledge, hypothecation, security interest, assignment, lien (statutory or otherwise), charge, title retention agreement or arrangement, restrictive covenant or other encumbrance of any nature or any other arrangement or condition, which, in substance, secures payment, or performance of an obligation.

“ Marketing Expenses ” means the costs incurred by Amalco (including any reasonable fees charged by BevCanna in connection with marketing support) in the sales, promotion and marketing activities related to all product lines.

“ Material Adverse Effect ” means any change, event, violation, circumstance, development or effect that is, or would reasonably be expected to be, taken as a whole, materially adverse to the financial condition or results of operations of the Company, the Purchaser, as the case may be, and their respective Subsidiaries, whether or not arising in the ordinary course of business, provided that none of the following (or any result, occurrence, fact, state of facts, event, circumstance, condition, change or effect resulting from, in connection with or attributable to any of them) will, in each case, be deemed to constitute a “Material Adverse Effect” or be considered in determining whether a “Material Adverse Effect” has occurred:

(a) any failure by the Company, the Purchaser and any of their respective Subsidiaries, the Assets or the Business to meet projections or forecasts or revenue or earnings predictions for any period ending on or after the date hereof, and any reasonable business decisions made with respect thereto, provided that this clause (a) shall not prevent the underlying facts giving rise or contributing to such failure, if not otherwise excluded from the definition of Material Adverse Effect, from being taken into account in determining whether a Material Adverse Effect has occurred;
(b) any natural disaster, pandemic, force majeure event or any acts of terrorism, pandemic (not including any effect of the COVID-19 pandemic prior to the date of this Agreement), sabotage, military action or war (whether or not declared) or any escalation or worsening thereof;
(c) conditions generally affecting (i) the industry in which the Company, the Purchaser or their respective Subsidiaries participates (including, for greater certainty, changes proposed or made by any Governmental Authority to pricing, reimbursement rates or other terms applicable to the Business); or (ii) the Canadian economy as a whole;
(d) general economic or political conditions or financing or the capital markets in general;
(e) the execution, delivery, announcement or pendency of this Agreement or the transactions contemplated hereby, the consummation of the transactions

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contemplated hereby, compliance with the terms of, the taking of any action or omission required by, this Agreement or in connection with the transactions contemplated hereby, or the taking of any action or omission requested, required or approved in writing by the Purchaser (in respect to the Company) or the Company (in respect to the Purchaser or Subco); and

(f) any change in accounting requirements or principles (including IFRS), Applicable Laws or Authorizations (including those forming part of the Assets) or the interpretation thereof by any Governmental Authority,

provided , however, that if any change, event, occurrence, effect, state of facts or circumstance in clauses (b), (c), (d) and (f) above has a disproportionate effect on the Company, the Purchaser, as the case may be, and their respective Subsidiaries, taken as a whole, relative to other comparable companies and entities operating in the industries in which the Company and the Purchaser operate, such effect may be taken into account in determining whether a Material Adverse Effect has occurred.

“ Material Contract ” means any Contract entered into by the Company (or any of its Subsidiaries), (i) which has payment obligations on the part of such Party that exceed $5,000, (ii) which has been entered into out of the ordinary course of business, (iii) for which breach, nonperformance, cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect on the Company, (iv) pursuant to which any payment or third party consent may be triggered in connection with such Party entering into this Agreement or carrying out the transactions contemplated thereby, or (v) which can reasonably be regarded as material to a securityholder of such Party.

“ Material Premises ” means the Leased Premises and the Owned Premises as applicable to each of the Company, and its Subsidiaries.

“ Maximum Earn-Out Amount ” , with respect to any Calculation Period, the maximum Earn-Out amount for such Calculation Period set forth on Schedule “G”.

“ Money Laundering Laws ” has the meaning given to the term in section 5.45.

“ Nano Convertible Debentures ” means the issued and outstanding convertible debentures of Embark Nano Inc. dated August 6, 2019 and September 18, 2019.

“ Nano Warrants ” has the meaning given to the term in Section 5.21(f)(iii).

“ Non-Competition Agreements ” means non-competition agreements with each of the Key Employees, in each case in a form satisfactory to the Purchaser.

“ Outside Date ” means December 17, 2021.

“ Owned Premises ” means the real property owned by the Company, as and any of its Subsidiaries comprised of land and building (excepting mines and minerals).

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“ Payment Shares ” means, collectively, the Closing Payment Shares and Earn-Out Preferred Shares issuable pursuant to the Amalgamation.

“ Parties ” means collectively, the Company, Subco, the Shareholder Representatives, the Vendors and the Purchaser, and “ Party ” means any one of them.

“ Permitted Liens ” means: (i) statutory Liens for current Taxes that are not yet due and payable as of the Effective Date or are being contested in good faith by appropriate proceedings; (ii) other Liens that arise or are incurred in the ordinary course of business (other than in connection with any Debt), are not material in amount and do not adversely affect the title of, materially detract from the value of or materially interfere with any present use of, the assets or properties affected by such Lien.

“ Person ” includes an individual, corporation, partnership, joint venture, trust, unincorporated organization, the Crown or any agency or instrumentality thereof or any other juridical entity.

“ Post-Closing Adjustment ” has the meaning set forth in Section 2.01(b)(ii).

“ Privacy Laws ” means all Laws relating to privacy or data protection, including, the Personal Information Protection and Electronic Documents Act (Canada) and CASL;

“ Proportionate Share ” means, in respect to each Vendor, the quotient, expressed as a percentage, which is obtained when the number of Embark Common Shares owned by the Vendor is divided by the aggregate number of Embark Common Shares held by all of the Vendors.

“ Purchaser ” has the meaning given to the term in the preamble hereof.

“ Purchaser and Subco Closing Documents ” means the documents required to be delivered to the Company by the Purchaser and Subco pursuant to section 13.03.

“ Purchaser Common Shares ” means common shares in the capital of the Purchaser.

“ Purchaser Indemnified Parties ” means (i) the Purchaser and its directors, officers, employees, agents and representatives, and “ Purchaser Indemnified Party ” means any one of them.

“ Purchaser Recoverable Amount ” has the meaning given to the term in Section 15.06(a).

“ Purchaser Share Closing Price ” has the meaning given to that term in Section 2.01(a).

“ Purchaser’s Business ” means the business of the Purchaser and its Subsidiaries, specifically providing cannabis processing and white label manufacturing services and products.

“ Purchaser’s Public Record ” means, collectively, all of the documents that have been filed by or on behalf of the Purchaser on SEDAR since July 2, 2019.

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“ Qualified Offering ” means an equity financing for minimum aggregate gross proceeds of $3,000,000 and completed concurrently or in connection with a transaction contemplated by the definition of a “Go Public Transaction” as set out in the Embark Convertible Debentures.

“ Registrar ” means the person appointed as the Registrar of Companies under section 400 of the BCBCA.

“ Regulation D ” means Regulation D adopted by the SEC under the 1933 Act.

“ Regulation S ” means Regulation S adopted by the SEC under the 1933 Act.

“ Representative ” has the meaning given to the term in section 11.01.

“ Resolution Period ” has the meaning set forth in Section 2.02(c)(ii).

“ Return on Capital Expenses ” means the rate of return on capital expenditures, which is be calculated as 23.5% of the annual capital asset purchases incurred in each Calculation Period.

“ Review Period ” has the meaning set forth in Section 2.02(c)(i).

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

“ Securities Act ” means the Securities Act (British Columbia).

“ Securities Authorities ” means the federal, state and provincial securities commissions and/or other securities regulatory authorities in Canada and the United States, including the SEC, and any stock exchanges or other self-regulatory agencies having authority over BevCanna or Embark (as applicable), including the Exchange.

“ Securities Laws ” means collectively, all securities laws in each of the jurisdictions applicable to the Purchaser or the Company, as applicable, and the respective rules and regulations made thereunder together with applicable multilateral and national instruments, orders, rulings, rules and other regulatory instruments issued or adopted by each securities commission (or similar securities regulatory authority) in each jurisdiction applicable to the Purchaser or the Company, as applicable.

“ Services Agreement ” means the services agreement among the Company, Ontario Marihuana Growers Inc. and Niklas Van Haeren dated July 18, 2019.

“ Settlement Price ” means $0.45 per Purchaser Common Share, provided that if and whenever at any time prior to the Effective Date the Purchaser shall:

(i) subdivide or re-divide the outstanding Purchaser Common Shares into a greater number of Purchaser Common Shares;
(ii) reduce, combine or consolidate the outstanding Purchaser Common Shares into a smaller number of Common Shares; or

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(iii) issue Purchaser Common Shares, or securities convertible into Purchaser Common Shares, to the holders of all or substantially all of the outstanding Purchaser Common Shares by way of stock dividend other than a dividend paid in the ordinary course,

then the price under subsection (i) and (ii) above in effect on the effective date of such subdivision, re-division, reduction, combination or consolidation or on the record date for such issue of Purchaser Common Shares, or securities convertible into or exchangeable for Purchaser Common Shares, by way of a stock dividend, as they case may be, shall:

(iv) in the case of the events referred to in subsections (i) and (iii) above, be adjusted in proportion to the number of outstanding Purchaser Common Shares resulting from such subdivision, re-division or dividend (including, in the case where securities convertible into or exchangeable for Purchaser Common Shares are issued, the number of Purchaser Common Shares that would have been outstanding had such securities been converted into or exchanged for Purchaser Common Shares on such record date); or
(v) in the case of events referred to in subsection (ii) above, be adjusted in proportion to the number of outstanding Purchaser Common Shares resulting from such reduction, combination or consolidation.

“ Shareholder Loans ” means those shareholder loans as set out and described in Section 5.31 of the Embark Disclosure Letter.

“ Shareholder Representative ” means Bruce Dawson-Scully.

“ Statement of Objections ” has the meaning set forth in Section 2.02(c)(ii).

“ Subco ” has the meaning given to the term in the preamble hereof.

“ Subco Common Shares ” means all of the outstanding common shares in the capital of Subco.

“ Subsidiary ” means a Person that is controlled directly or indirectly by another Person and includes a Subsidiary of that Subsidiary. A Person is considered to “ control ” another Person if: (a) the first Person beneficially owns or directly or indirectly exercises control or direction over securities of the second Person carrying votes which, if exercised, would entitle the first Person to elect a majority of the directors of the second Person, unless that first Person holds the voting securities only to secure an obligation; (b) the second Person is a partnership, other than a limited partnership, and the first Person holds more than 50% of the interests of the partnership; or (c) the second Person is a limited partnership, and the general partner of the limited partnership is the first Person.

“ Substantial U.S. Market Interest ” means substantial U.S. market interest as that term is defined in Regulation S;

“ Tax Act ” means the Income Tax Act (Canada).

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“ Taxes ” means taxes (including income tax, capital tax, payroll taxes, employer health tax, workers’ compensation payments, property taxes, custom and land transfer taxes), duties, royalties, levies, imposts, assessments, deductions, charges or withholdings and all liabilities with respect thereto including any penalty and interest payable with respect thereto.

“ Third Party Claim ” means any action, suit, proceeding, arbitration, claim or demand that is instituted or asserted by a third party, including a Governmental Authority, against an Indemnified Party which entitles the Indemnified Party to make a claim for indemnification under this Agreement.

“ Undisputed Amounts ” has the meaning set forth in Section 2.02(c)(iii).

“ United States ” or “ U.S. ” means the United States of America, its territories and possessions, any state of the United States and the District of Columbia.

“ Vendors ” means the persons listed on Schedule “F”.

“ VWAP ” means for an applicable date means the price per Purchaser Common Share based on the volume weighted average trading price of the Purchaser Common Shares on the Exchange, calculated by dividing the total value by the total volume of Purchaser Common Shares traded on the Exchange for the five trading days immediately preceding the applicable date.

“ Woodstock Facility ” means the lands legally described as PART OF LOTS 168C-170C PLAN 293 AND PART OF FIRST STREET PLAN 293 (CLOSED BY 484) BEING PARTS 9 & 10, 41R9639; CITY OF WOODSTOCK together with the building and structure thereon.

“ Woodstock Guarantee ” means the confidential memorandum of agreement dated September 9, 2021 between Embark and Nik Van Haeren.

“ Woodstock MOA ” means the confidential memorandum of agreement dated August 3, 2021 as amended between Embark, WDSK Inc., Trigon Construction Management Inc., Ontario Marihuana Growers Inc. and Niklas Van Haeren.

“ Woodstock Mortgage ” means the loan and related mortgage and charge on the Woodstock Facility in connection with the commitment letter dated August 20, 2021 executed by TriLend Inc. and the Company that contemplates a loan amount of $3M or 50% of the value of the Woodstock Facility, whichever is less, and pursuant to which the Company has, as of the date hereof, received an advance of $1M in gross proceeds.

1.02

Shareholder Representative.

(a) The Shareholder Representative is hereby appointed to act on behalf of the Embark Shareholders with respect to this Agreement, the Earn-Out Preferred Shares and the Closing Escrow Agreement and to take any and all actions and make any decisions required or permitted to be taken by Shareholder Representative under this Agreement or the Escrow Agreement, including the exercise of the power to:
(i) give and receive notices and communications;

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(ii) authorize delivery to Purchaser for cancellation of Payment Shares from the Closing Escrow Agreement in satisfaction of any amounts owed to Purchaser pursuant to Section 2.02(b);
(iii) agree to, negotiate, enter into settlements and compromises of, and comply with orders or otherwise handle any other matters described in Section 2.02(b) and Section 2.03;
(iv) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to claims for indemnification made by Purchaser under Article XV;
(v) litigate, arbitrate, resolve, settle or compromise any claim for indemnification under Article XV;
(vi) execute and deliver all documents necessary or desirable to carry out the intent of this Agreement and any Ancillary Agreements (including the Closing Escrow Agreement);
(vii) make all elections or decisions contemplated by this Agreement and any Ancillary Agreements (including the Closing Escrow Agreement);
(viii) engage, employ or appoint any agents or representatives (including lawyers, accountants and consultants) to assist Shareholder Representative in complying with its duties and obligations; and
(ix) take all actions necessary or appropriate in the good faith judgment of Shareholder Representative for the accomplishment of the foregoing.
(b) Purchaser shall be entitled to deal exclusively with Shareholder Representative on all matters relating to this Agreement and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Embark Shareholder by Shareholder Representative, and on any other action taken or purported to be taken on behalf of any Embark Shareholder by Shareholder Representative, as being fully binding upon such Person.
(c) Notices or communications to or from Shareholder Representative shall constitute notice to or from each Embark Shareholder. Any decision or action by Shareholder Representative under this Agreement, including any agreement between Shareholder Representative and Purchaser relating to the defence, payment or settlement of any claims for indemnification under this Agreement, shall constitute a decision or action of all Vendors and shall be final, binding and conclusive upon each such Person.
(d) No Shareholder shall have the right to object to, dissent from, protest or otherwise contest the same.

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(e) The provisions of this Section are independent and severable, are irrevocable and coupled with an interest and shall not be terminated by any act of any one or more Vendors or by operation of Law, whether by death or other event.
(f) The Shareholder Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Vendors according to each Vendor's Proportionate Share (the " Majority Vendors "); provided that , in no event shall Shareholder Representative resign or be removed without the Majority Vendors having first appointed a new Shareholder Representative who shall assume such duties immediately upon the resignation or removal of Shareholder Representative. In the event of the death, incapacity, resignation or removal of Shareholder Representative, a replacement Shareholder Representative shall be appointed by the vote or written consent of the Majority Vendors. Notice of such vote or a copy of the written consent appointing such new Shareholder Representative shall be sent to Purchaser, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Purchaser; provided that, until such notice is received, Purchaser shall be entitled to rely on the decisions and actions of the prior Shareholder Representative.
(g) Shareholder Representative shall not be liable to the Embark Shareholders for actions taken pursuant to this Agreement or the Closing Escrow Agreement, except to the extent that such actions shall have been determined by a court of competent jurisdiction to have constituted gross negligence or involved fraud, intentional misconduct or bad faith (it being understood that any act done or omitted pursuant to the advice of counsel, accountants and other professionals and experts retained by Shareholder Representative shall be deemed to have been made in good faith).

ARTICLE II PURCHASE PRICE & ADJUSTMENTS

2.01 Subject to the terms and conditions of this Agreement, the purchase price payable by the Purchaser for all of the Embark Common Shares shall be $21,000,000 (the “ Closing Value ”), subject to adjustment as provided herein, plus the contingent value of the Earn-Out Preferred Shares, to be paid and satisfied as follows:
(a) the Payment Shares shall be issued at Closing by the Purchaser in accordance with the Amalgamation, at a deemed price equal to the Settlement Price (the “ Purchaser Share Closing Price ”), and delivered to the Shareholder Representative and to the Closing Escrow Agent for the benefit of the Embark Shareholders; and
(b) the Earn-Out Preferred Shares shall be issued at Closing by the Purchaser in accordance with the Amalgamation, and delivered to the Shareholder Representative and to the Closing Escrow Agent for the benefit of the Embark Shareholders on the basis of one share of each series of Earn-Out Preferred Shares for each Closing Payment Share issued for the benefit of such Embark Shareholder pursuant to Section 2.01(a).
2.02 Purchase Price Adjustment.

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(a) Closing Adjustment.

(i) At least five Business Days before the Closing, the Shareholder Representative shall prepare and deliver to Purchaser a statement setting forth its good faith estimate of Closing Working Capital (the “ Estimated Closing Working Capital ”), which statement shall contain an estimated balance sheet of the Company as of the Closing Date (without giving effect to the transactions contemplated herein), a calculation of Estimated Closing Working Capital (the “ Estimated Closing Working Capital Statement ”), and a certificate of the Shareholder Representative that the Estimated Closing Working Capital Statement was prepared in accordance with IFRS applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the Annual Financial Statements for the most recent financial year end as if such Estimated Closing Working Capital Statement was being prepared on an audited basis as of a financial year end.
(ii) If the Estimated Closing Working Capital is a positive number, the Closing Value shall be increased by the amount of the Estimated Closing Working Capital. If the Estimated Closing Working Capital is a negative number, the Closing Value shall be reduced an amount equal to the Estimated Closing Working Capital.

(b) Post-Closing Adjustment.

(i) Within 90 days after the Closing Date, Purchaser shall prepare and deliver to the Shareholder Representative a statement setting forth Purchaser's calculation of Closing Working Capital, which statement shall contain an unaudited balance sheet of the Company as of the Closing Date (without giving effect to the transactions contemplated herein), a calculation of Closing Working Capital (the “ Closing Working Capital Statement ”) and a certificate of the Chief Financial Officer of Purchaser that the Closing Working Capital Statement was prepared in accordance with IFRS applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the Annual Financial Statements for the most recent financial year end as if such Closing Working Capital Statement was being prepared on an audited basis as of a financial year end.
(ii) The post-closing adjustment shall be an amount equal to the Closing Working Capital minus the Estimated Closing Working Capital (the “ Post-Closing Adjustment ”). If the Post-Closing Adjustment is a positive number upon final determination set forth in Section 2.02(c), Purchaser shall issue Purchaser Common Shares having an aggregate value, calculated using the Settlement Price, equal to the Post-Closing Adjustment (and correlated Earn-Out Shares) and deliver such shares to the Closing Escrow Agent to be held in accordance with the terms and conditions of the Closing Escrow Agreement. If the PostClosing Adjustment is a negative number upon final determination set forth in

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Section 2.02(c), the Escrow Agent shall release to Purchaser for cancellation Purchaser Common Shares having an aggregate value, calculated using the Settlement Price, equal to the Post-Closing Adjustment expressed as a positive number (and correlated Earn-Out Shares).

(c) Examination and Review.
(i) Examination . After receipt of the Closing Working Capital Statement, the Shareholder Representative shall have 30 days (the “ Review Period ”) to review the Closing Working Capital Statement. During the Review Period, the Shareholder Representative and the Shareholder Representative’s accountant shall have full access to the books and records of the Company, the personnel of, and work papers prepared by, Purchaser or Purchaser's accountant, or both, to the extent that they relate to the Closing Working Capital Statement and to such historical financial information (to the extent in Purchaser's possession) relating to the Closing Working Capital Statement as the Shareholder Representative may reasonably request for the purpose of reviewing the Closing Working Capital Statement and to prepare a Statement of Objections (defined below), provided that such access shall be in a manner that does not interfere with the normal business operations of Purchaser or Amalco.
(ii) Objection . On or before the last day of the Review Period, the Shareholder Representative may object to the Closing Working Capital Statement by delivering to Purchaser a written statement setting forth Shareholder Representative's objections in reasonable detail, indicating each disputed item or amount and the basis for Shareholder Representative's disagreement therewith (the “ Statement of Objections ”). If Shareholder Representative fails to deliver the Statement of Objections before the expiration of the Review Period, the Closing Working Capital Statement and the Post-Closing Adjustment, as the case may be, reflected in the Closing Working Capital Statement shall be deemed to have been accepted by Shareholder Representative. If Shareholder Representative delivers the Statement of Objections before the expiration of the Review Period, Purchaser and Shareholder Representative shall negotiate to resolve such objections within 30 days after the delivery of the Statement of Objections (the “ Resolution Period ”), and, if the same are so resolved within the Resolution Period, the Post-Closing Adjustment and the Closing Working Capital Statement with such changes as may have been previously agreed in writing by Purchaser and Shareholder Representative, shall be final and binding.
(iii) Resolution of Disputes . If Shareholder Representative and Purchaser fail to reach an agreement with respect to all of the matters set forth in the Statement of Objections before expiration of the Resolution Period, then any amounts remaining in dispute (“ Disputed Amounts ” and any amounts not so disputed, the “ Undisputed Amounts ”) shall be submitted for resolution to the office of an impartial nationally recognized firm of independent chartered professional accountants other than Shareholder Representative's accountant or Purchaser's accountant appointed by Purchaser and Shareholder Representative by mutual

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agreement (the “ Independent Accountant ”) who, acting as an expert and not as an arbitrator, shall resolve the Disputed Amounts only and make any adjustments to the Post-Closing Adjustment, as the case may be, and the Closing Working Capital Statement. The parties hereto agree that all adjustments shall be made without regard to materiality. The Independent Accountant shall only decide the specific items under dispute by the parties and its decision for each Disputed Amount must be within the range of values assigned to each such item in the Closing Working Capital Statement and the Statement of Objections, respectively.

(iv) Fees of the Independent Accountant . The fees and expenses of the Independent Accountant shall be paid by Shareholder Representative, on the one hand, and by Purchaser, on the other hand, based upon the percentage that the amount actually contested but not awarded to Shareholder Representative or Purchaser, respectively, bears to the aggregate amount actually contested by Shareholder Representative and Purchaser.
(v) Determination by Independent Accountant . The Independent Accountant shall make a determination as soon as practicable within 30 days (or such other time as the parties hereto shall agree in writing) after its engagement, and its resolution of the Disputed Amounts and its adjustments to the Closing Working Capital Statement and the Post-Closing Adjustment shall be conclusive and binding upon the parties hereto.
(vi) Payments of Post-Closing Adjustment . Except as otherwise provided herein, any payment of the Post-closing Adjustment shall (A) be due (x) within five Business Days of acceptance of the applicable Closing Working Capital Statement or (y) if there are Disputed Amounts, then within five Business Days of the resolution described in Section 2.02(c)); and (B) be settled by the issuance of additional Closing Payment Shares (and correlated Earn-Out Shares) for delivery to the Closing Escrow Agent or the release from escrow of Closing Payment Shares (and correlated Earn-Out Shares) for cancellation, as applicable, in a manner consistent with the provisions contemplated in Section 2.02(b)(ii). The amount of any Post-closing Adjustment shall not bear interest.
(d) If the Woodstock Facility is sold by the Company in a bona fide arm’s length transaction at any time within 18 months of Closing, the purchase price shall be further adjusted (the “ Woodstock Adjustment ”) by increasing it by an amount equal to the cash proceeds of disposition received by the Company, net of (i) all amounts payable pursuant to the terms of the Woodstock MOA and/or the Woodstock Guarantee, (ii) all taxes payable by Embark or Embark Woodstock Inc., (iii) all expenses incurred by the Company in connection with such sale, including commissions, legal fees, brokers and agents fees and (iv) any amount owing under the Woodstock Mortgage. Any payment of the Woodstock Adjustment shall be due within 20 Business Days following the closing of the disposition of the Woodstock Facility and shall be settled by the issuance of Purchaser Common Shares having an aggregate value, calculated using the VWAP on the closing date of the disposition of the Woodstock Facility,, equal to the Woodstock

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Adjustment (and correlated Earn-Out Shares) and deliver such shares to the Closing Escrow Agent to be held in accordance with the terms and conditions of the Closing Escrow Agreement. During the 18 month period following Closing, the Purchaser hereby covenants to: (i) use commercially reasonable efforts to sell the Woodstock Facility in a bona fide arm’s length transaction on commercially reasonable terms; and (ii) provide the Shareholder’s Representative reasonable opportunity to review and comment on the material terms and transaction documents of such sale.

(e) Adjustments for Tax Purposes . Any payments made under Section 2.02 shall be treated as an adjustment to the purchase price by the parties for Tax purposes, unless otherwise required by Law.
2.03 Earn-Out
(a) Earn-Out Amount . Pursuant to the terms and conditions of this Agreement and in accordance with the Earn-Out Share Provisions and Section 2.03(c), Purchaser shall cause the Earn-Out Shares to be converted or redeemed, as applicable, with respect to each Calculation Period within the Earn-Out Period in order to satisfy an amount, if any (each, an “ Earn-Out Amount ”), equal to the product of (i) an amount equal to (A) the Adjusted EBITDA for such Calculation Period, minus (B) the EBITDA Threshold for such Calculation Period; multiplied by (ii) the Earn-Out Multiple; provided that in no event shall the Earn-Out Amount be greater than the Maximum Earn-Out Amount for any Calculation Period. If the Adjusted EBITDA for a particular Calculation Period does not exceed the applicable EBITDA Threshold, the Earn-Out Amount for such Calculation Period shall be nil and an amount equal to the amount of such shortfall shall be deducted from the Adjusted EBITDA when calculating the Earn-Out Amount for the next Calculation Period.

(b) Procedures Applicable to Determination of the Earn-Out Payments.

(i) On or before the date which is 120 days after the last day of each Calculation Period (each such date, an “ Earn-Out Calculation Delivery Date ”), Purchaser shall prepare and deliver to Shareholder Representative a written statement (in each case, an “ Earn-Out Calculation Statement ”) setting forth in reasonable detail the Purchaser's determination of Adjusted EBITDA for the applicable Calculation Period and calculation of the resulting Earn-Out Payment (in each case, an “ Earn-Out Calculation ”).
(ii) Shareholder Representative shall have 30 days after receipt of the Earn-Out Calculation Statement for each Calculation Period (in each case, the “ Review Period ”) to review the Earn-Out Calculation Statement and the Earn-Out Calculation set forth therein. During the Review Period, Shareholder Representative and its accountants shall have the right to inspect Amalco’s books and records during normal business hours at Amalco’s offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of Adjusted EBITDA and the resulting Earn-Out Payment. Before the expiration of the Review Period, Shareholder Representative may object to

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the Earn-Out Calculation set forth in the Earn-Out Calculation Statement for the applicable Calculation Period by delivering a written notice of objection (an “ Earn-Out Calculation Objection Notice ”) to Purchaser; provided that the only basis on which Shareholder Representative may dispute any matter in the EarnOut Calculation is manifest error. Any Earn-out Calculation Objection Notice shall specify the items in the applicable Earn-Out Calculation disputed by Shareholder Representative and shall describe in reasonable detail the basis for such objection and the amount in dispute. If Shareholder Representative fails to deliver an Earn-Out Calculation Objection Notice to Purchaser before the expiration of the Review Period, then the Earn-Out Calculation set forth in the Earn-Out Calculation Statement shall be final and binding on the parties hereto. If Shareholder Representative timely delivers an Earn-Out Calculation Objection Notice, Purchaser and Shareholder Representative shall negotiate in good faith to resolve the disputed items and agree upon the resulting amount of the Adjusted EBITDA and the Earn-Out Payment for the applicable Calculation Period. If Purchaser and Shareholder Representative have not reached an agreement within 30 days after such an Earn-Out Calculation Objection Notice has been given, all unresolved disputed items shall be promptly referred to an impartial nationally recognized firm of independent chartered professional accountants, other than Shareholder Representative's accountant or Purchaser's accountant, appointed by mutual agreement of Purchaser and Shareholder Representative (the “ Independent Accountant ”). The Independent Accountant shall be directed to render a written report on the unresolved disputed items with respect to the applicable Earn-Out Calculation as promptly as practicable but in no event greater than 30 days after such submission to the Independent Accountant, and to resolve only those unresolved disputed items set forth in the Earn-Out Calculation Objection Notice. If unresolved disputed items are submitted to the Independent Accountant, Purchaser and Shareholder Representative shall each furnish to the Independent Accountant such work papers, schedules and other documents and information relating to the unresolved disputed items as the Independent Accountant may reasonably request. The Independent Accountant shall resolve the disputed items as an expert and not as an arbitrator based solely on the applicable definitions and other terms in this Agreement and the presentations by Purchaser and Shareholder Representative, and not by independent review. The resolution of the dispute and the calculation of Adjusted EBITDA that is the subject of the applicable Earn-Out Calculation Objection Notice by the Independent Accountant shall be final and binding on the parties hereto. The fees and expenses of the Independent Accountant shall be borne by Shareholder Representative and Purchaser in proportion to the amounts by which their respective calculations of Adjusted EBITDA differ from Adjusted EBITDA as finally determined by the Independent Accountant.

(c) Timing of Earn-Out Share Conversion and Redemption . Any Earn-Out Amount calculated under Section 2.03(a) shall be satisfied in full by the conversion or redemption of Earn-Out Shares no later than 20 Business Days following the date upon which the determination of Adjusted EBITDA for the applicable Calculation Period

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becomes final and binding upon the parties as provided in Section 2.03(b)(ii) (including any final resolution of any dispute raised by Shareholder Representative in an Earn-Out Calculation Objection Notice). Purchaser shall cause the applicable Earn-Out Amount to be settled in accordance with the Earn-Out Share Provisions in either cash (via redemption of Earn-Out Shares), or Purchaser Common Shares (via conversion of EarnOut Shares) (the “ Earn-Out Consideration Shares ”), or a combination of both, in the sole discretion of the board of directors of BevCanna. Any Earn-Out Consideration Shares issued to the holders of Earn-Out Shares pursuant to the provisions of this Section 2.03(c) shall be issued at the VWAP of the Earn-Out Consideration Shares in accordance with the Earn-Out Share Provisions.

(d) Post-Closing Operation of Amalco . Subject to the terms of this Agreement, subsequent to the Closing, Purchaser and Amalco shall have exclusive discretion with regard to all matters relating to the operation of Amalco; provided that, during the Earn-Out Period Purchaser shall use reasonable commercial efforts to (i) operate Amalco as a standalone division, cause Amalco to maintain its own audited financial statements in accordance with IFRS, and not transfer any material portion of the assets of Amalco to any other Affiliate of Purchaser; (ii) refrain from taking any action, omit to take any action, engage in any transaction or series of related transactions, or enter into an agreement to do the same with the intention of reducing the ability of Amalco to achieve any of the Earn-Out Payments; and (iii) subject to the Employment Agreements, maintain the management team of Amalco to be comprised of the Key Employees. Notwithstanding the foregoing, Purchaser has no obligation to operate Amalco to achieve any Earn-Out Payment or to maximize the amount of any Earn-Out Payment.

ARTICLE III AMALGAMATION AND RELATED MATTERS

3.01 The Amalgamating Parties hereby agree to amalgamate and continue as one corporation pursuant to the BCBCA and upon the terms and conditions hereinafter set out. In addition, subject to the terms and conditions herein set forth and on the basis of the covenants, representations, warranties and agreements of the Parties herein contained, each of the Company, Subco and the Purchaser covenants and agrees to:
(a) use all commercially reasonable efforts and do all things necessary or reasonably desirable on its part to facilitate the implementation of the Acquisition and all related matters in connection therewith, including without limiting the generality of the foregoing, applying for, obtaining and/or effecting as applicable: (i) the approval of the Exchange for the transactions contemplated hereof; (ii) in the case of the Company, obtain Embark Shareholder Approval; and (iii) obtain such other consents, orders or approvals as counsel to the Company and the Purchaser, acting reasonably, may advise are necessary or desirable to be obtained for the implementation of the Acquisition, including without limitation those referred to in Article VIII, Article IX, Article X, Article XII and Article XIII hereof, and preparing and delivering all necessary documents in connection therewith;

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(b) take and cause to be taken such other steps and actions and execute such other documents, agreements and instruments as may be reasonably necessary or desirable in connection with the consummation of the transactions contemplated hereby; and
(c) as soon as reasonably practicable following the execution and delivery of this Agreement, the Company shall hold the Meeting in compliance with Applicable Laws and the Company’s articles and bylaws.
3.02 Each of the Company and the Purchaser shall:
(a) ensure that all information provided by it or on its behalf that is contained in the Embark Circular (or any other analogous disclosure document) does not contain any misrepresentation or any untrue statement of a material fact or omit to state a material fact required to be stated in the Embark Circular (or any other analogous disclosure document) and necessary to make any statement that it contains not misleading in light of the circumstances in which it is made; and
(b) promptly notify the other Parties if, at any time before the Effective Time, it becomes aware that the Embark Circular (or any other analogous disclosure document) contains a misrepresentation, an untrue statement of material fact, omits to state a material fact required to be stated in the Embark Circular (or any other analogous disclosure document) that is necessary to make any statement it contains not misleading in light of the circumstances in which it is made or that otherwise requires an amendment or a supplement to the Embark Circular (or any other analogous disclosure document).
3.03 As may be required by, and in compliance with, Applicable Laws, upon execution of this Agreement, the Company and the Purchaser shall issue a joint public announcement, announcing the entering into of this Agreement, which announcement shall be in form and substance acceptable to each of them, acting in a commercially reasonable manner, and in accordance with the policies of the Exchange. Except as permitted herein and except as may be required by Applicable Law and the policies of the Exchange, no Party shall issue any news release or public statements inconsistent with such public announcement without the prior written consent of the other party.
3.04 At the Effective Time:
(a) the Amalgamation of the Amalgamating Parties and their continuation as one corporation, Amalco, shall become irrevocable;
(b) Amalco shall be named “Embark Health Inc.” and shall have as its notice of articles the notice of articles contained in the Amalgamation Application;
(c) Amalco shall become capable immediately of exercising the functions of an incorporated company under the BCBCA;
(d) each shareholder of each Amalgamating Party shall be bound by this Agreement;
(e) the property, rights and interests of each of the Amalgamating Parties shall continue to be the property, rights and interests of Amalco;

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(f) Amalco shall continue to be liable for the obligations of each of the Amalgamating Parties;
(g) any existing cause of action, claim or liability to prosecution shall be unaffected;
(h) any conviction against, or a ruling, order or judgement in favour of or against, any of the Amalgamating Parties may be enforced by or against Amalco;
(i) a legal proceeding being prosecuted or pending by or against an Amalgamating Party may be prosecuted, or its prosecution may be continued, as the case may be, by or against Amalco; and
(j) the articles of Amalco shall be the Amalco Articles.
3.05 The registered office of Amalco shall be 900 – 885 West Georgia Street, Vancouver, BC V6C 3H1.
3.06 Upon the terms and subject to the conditions contained in this Agreement, on the Effective Date:
(a) each issued and outstanding Subco Common Share shall be exchanged for one fully paid Amalco Common Share, and all such Subco Common Shares shall be cancelled;
(b) the holders of Embark Common Shares outstanding immediately prior to the Effective Time, other than dissenting shareholders pursuant to Section 3.08, shall receive, in exchange for their Embark Common Shares, (i) that number of fully paid and nonassessable Purchaser Common Shares issued by the Purchaser equal to the product obtained by multiplying the number of Embark Common Shares held by such holders by the Exchange Ratio, and (ii) one fully paid and non-assessable share of each series of Earn-Out Shares for each Purchaser Common Share issued pursuant to item (i) above, and all such Embark Common Shares shall be cancelled;
(c) in consideration of the issuance by the Purchaser of the Purchaser Common Shares, Amalco shall issue to the Purchaser that number of fully paid Amalco Common Shares as is equal to the number of Purchaser Common Shares issued by the Purchaser pursuant to section 3.06(b);
(d) each issued and outstanding Embark Option shall be cancelled; and
(e) each issued and outstanding Embark Compensation Security shall be cancelled.
3.07 Notwithstanding section 3.06, no fractional Purchaser Common Share or Earnout Preferred Share will be issuable to registered security holders of the Company pursuant to the Amalgamation, and no cash payment or other form of consideration will be payable in lieu thereof. Subject to compliance with the policies of the Exchange, any such fractional Purchaser Common Share or Earnout Preferred Share to which a registered security holder of the Company would otherwise be entitled pursuant to the Amalgamation will be rounded down to the nearest whole Purchaser Common Share and Earn-Out Share, respectively.
3.08 Registered Embark Shareholders entitled to vote at the Embark Meeting will be entitled to exercise Dissent Rights with respect to their Embark Shares in connection with the Continuation and the Amalgamation pursuant to and in the manner set forth in the Embark Circular. The Company shall give the Purchaser notice of any written notice of dissent, withdrawal of such

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notice, and any other instruments serviced pursuant to such dissent rights and received by the Company and shall provide the Purchaser with copies of such notices and written objections. Embark Shares which are held by a dissenting Embark Shareholder shall not be exchanged for Purchaser Common Shares or Earn-Out Shares pursuant to the Amalgamation. However, if a dissenting Embark Shareholder fails to perfect or effectively withdraws such dissenting Embark Shareholder’s claim under the CBCA or the BCBCA or forfeits such dissenting Embark Shareholder’s right to make a claim under the CBCA or the BCBCA, or if such dissenting Embark Shareholder’s rights as a Embark Shareholder are otherwise reinstated, such Embark Shareholder’s Embark Shares shall thereupon be deemed to have been exchanged for shares of BevCanna as of the Effective Time as prescribed herein.

3.09 On the Effective Date:
(a) the holders of record of Embark Common Shares shall be, and be deemed to be, the registered holders of the Payment Shares to which they are entitled hereunder, respectively, without any further action on the part of such registered holder of securities in the capital of the Company;
(b) the Purchaser shall, or shall cause or direct its transfer agent to, issue to each holder of record of Embark Common Shares, certificates or other evidence of ownership satisfactory to the Company, acting reasonably (including uncertificated records registered in the name of CDS Clearing and Depository Services Inc. on the book-based securities transfer system administered by it, as directed by the Company, provided that U.S Persons as identified by the Company must be issued physical certificates or DRS Advice), in each case bearing such legends as may be required by the Company, the Exchange or other Governmental Authority, representing the number of Payment Shares to which such holder is entitled, without any further notion on the part of such registered holder of securities in the capital of the Company; and
(c) the Purchaser, as the registered holder of the Subco Common Shares, shall be deemed to be the registered holder of Amalco Common Shares to which it is entitled hereunder and upon surrender of the certificates representing such Subco Common Shares to Amalco, the Purchaser shall be entitled to receive a share certificate representing the number of Amalco Common Shares to which it is entitled as set forth in section 3.06.
3.10 The amount to be added to the stated capital account maintained in respect of Amalco Common Shares in connection with the issue of Amalco Common Shares under section 3.06 on the Effective Date shall be the amount which is the sum of the stated capital of the issued and outstanding Embark Common Shares and of the stated capital of the issued and outstanding Subco Common Shares immediately prior to the Amalgamation.
3.11 Upon the shareholders of the Company and the sole shareholder of Subco approving the Amalgamation on the terms and subject to the conditions set forth in this Agreement and provided that the conditions to the completion of the Amalgamation specified herein have then been satisfied or waived (to the extent such waiver is permitted hereunder), the Company shall file the Continuation Application with the Register and immediately following receipt of the certificate of discontinuance from the Director under the CBCA, Subco and the Company shall jointly file with the Registrar, the Amalgamation Application providing for the Amalgamation and such other documents and instruments as may be required pursuant to the BCBCA.

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3.12 Unless otherwise changed in accordance with the provisions of Amalco’s articles, the board of directors of Amalco from time to time shall be empowered to determine the number of directors of Amalco within the minimum and maximum number set out in Amalco’s articles, as may be amended, restated, supplemented or otherwise modified from time to time.
3.13 As of the Effective Date, the number of directors of Amalco shall be one (1), and the first director of Amalco shall be Marcello Leone and his prescribed address is 1672 West 2nd Avenue, Vancouver, BC V6J 1H4. The director shall hold office until the next annual or annual and special meeting of the sole shareholder of Amalco or until a successor is elected or appointed in accordance with the provisions of Amalco’s articles.
3.14 The fiscal year end of Amalco shall end on December 31 of each year, until changed by resolution of the board of directors of Amalco.
3.15 Treatment of Restricted Securities under the U.S. Securities Act. The Parties agree that the Payment Shares issued in connection with the Amalgamation to or for the account or benefit of any former Embark Shareholders who is a U.S. Person (as defined in Regulation S) or person in the United States will be “restricted securities” within the meaning of Rule 144 under the 1933 Act and each certificate representing such Payment Shares will bear a legend in substantially the form that follows:
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”) OR UNDER ANY STATE SECURITIES LAWS AND ARE “RESTRICTED SECURITIES” AS THAT TERM IS DEFINED IN RULE 144 UNDER THE 1933 ACT. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF BEVCANNA ENTERPRISES INC. (THE “ISSUER”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE ISSUER; (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT AND IN COMPLIANCE WITH APPLICABLE UNITED STATES STATE LAWS AND REGULATIONS AND APPLICABLE LOCAL LAWS AND REGULATIONS; (C) IN ACCORDANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT PROVIDED BY RULE 144 OR RULE 144A THEREUNDER, IF AVAILABLE, AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS; (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS, OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT AND, IN THE CASE OF PARAGRAPH (C) OR (D), THE SELLER FURNISHES TO THE ISSUER AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER TO SUCH EFFECT.”

THE PRESENCE OF THIS LEGEND MAY IMPAIR THE ABILITY OF THE HOLDER HEREOF TO EFFECT “GOOD DELIVERY” OF THE SECURITIES REPRESENTED HEREBY ON A CANADIAN STOCK EXCHANGE.”

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3.16 Consultation. Embark and BevCanna will consult with each other in issuing any press release or otherwise making any public statement with respect to this Agreement or the Amalgamation and in making any filing with any Governmental Entity or Securities Authority with respect thereto. Each of Embark and BevCanna shall use its commercially reasonable efforts to enable the other of them to review and comment on all such press releases and filings prior to the release or filing, respectively, thereof, provided, however, that the obligations herein will not prevent a Party from making, after consultation with the other Party, such disclosure as is required by applicable Laws or the rules and policies of any applicable stock exchange.
3.17 Withholding Taxes. BevCanna and Subco will be entitled to deduct and withhold from the Payment Shares deliverable to any former Embark Shareholder such amounts as BevCanna or Subco may be required to deduct and withhold therefrom under any provision of applicable Laws in respect of Taxes. To the extent that any amounts are so deducted and withheld, such amounts will be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid. BevCanna or Subco may sell or otherwise dispose of (or direct the disposition or sale of) any portion of the Payment Shares issuable to a former Embark Shareholder as is necessary to provide sufficient funds to enable BevCanna or Subco to comply with such deduction and/or withholding requirements, and the former Embark Shareholder will co-operate to complete any such sale or disposition and will lose all rights in respect of the Payment Shares if they do not co-operate as requested.
3.18 Escrow. Embark acknowledges and agrees that in accordance with the policies of the Exchange and any other applicable stock exchange, the BevCanna Shares issued to certain Embark Shareholders who will be directors and/or officers of BevCanna or of Amalco upon Closing may be subject to escrow under the policies of the Exchange and Applicable Laws.
3.19 BevCanna Guarantee. BevCanna hereby unconditionally and irrevocably guarantees the due and punctual performance by Embark of each and every covenant and obligation of Subco arising under the Amalgamation. BevCanna hereby agrees that Embark shall not have to proceed first against Subco before exercising its rights under this guarantee against BevCanna.

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND SUBCO

The Purchaser and Subco hereby jointly and severally represent and warrant to the Company as of the date hereof, and acknowledge that the Company is relying upon each of such representations and warranties in connection with the transactions contemplated hereof, that:

4.01 each of the Purchaser and its Subsidiaries has been duly incorporated or otherwise organized and is validly existing as a corporation under the laws of the applicable jurisdiction, and no steps or proceedings have been taken by any person, voluntary or otherwise, requiring or authorizing the dissolution or winding up of the Company or any Subsidiary;
4.02 each of the Purchaser and its Subsidiaries is duly qualified, registered and in good standing to carry on business in each jurisdiction in which the conduct of its respective business or the ownership of its respective property and Assets requires such qualification (except for such jurisdictions where the failure to be so qualified would not result in a Material Adverse Effect)

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and each has all requisite corporate power and authority to conduct its business and to own, lease and operate its properties and Assets and to execute, deliver and perform its obligations under this Agreement and any other document, filing, instrument or agreement delivered in connection with the transactions contemplated hereof;

4.03 this Agreement has been duly executed and delivered by the Purchaser and Subco and (assuming due authorization, execution and delivery by the Company and the Vendors) constitutes a legal, valid and binding obligation of the Purchaser and Subco, enforceable against the Purchaser and Subco, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting creditors’ rights generally, general principles of equity, and the qualifications that equitable remedies may only be granted in the discretion of a court of competent jurisdiction and except that rights of indemnity, contribution, waiver and the ability to sever unenforceable terms may be limited under Applicable Laws; and when each other Ancillary Agreement to which the Purchaser or Subco is or will be a party has been duly executed and delivered by Purchaser or Subco, as applicable (assuming due authorization, execution and delivery by each other party thereto), such Ancillary Agreement will constitute a legal, valid and binding obligation of the Purchaser and Subco, enforceable against the Purchaser and Subco, as applicable, in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting creditors’ rights generally, general principles of equity, and the qualifications that equitable remedies may only be granted in the discretion of a court of competent jurisdiction and except that rights of indemnity, contribution, waiver and the ability to sever unenforceable terms may be limited under Applicable Laws;
4.04 Subco was formed solely for the purposes of effecting the Amalgamation, has nominal assets and no liabilities and has never conducted any business activities;
4.05 the Purchaser is currently a reporting issuer under Applicable Laws in each of the Provinces of British Columbia and Ontario, and the Purchaser’s name does not appear on a list of defaulting reporting issuers maintained by each of the British Columbia Securities Commission and the Ontario Securities Commission. The Purchaser is in compliance and up to date with all material filings under applicable corporate and Securities Laws since July 2, 2019;
4.06 no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the Purchaser is in effect and no proceedings for such purpose are, to its knowledge, pending or threatened;
4.07 each of the Purchaser and its Subsidiaries owns or has the right to use all Assets necessary to enable the Purchaser and its Subsidiaries, as applicable, to carry on Purchaser’s Business as now conducted and as presently proposed to be conducted as set out in Purchaser’s Public Record;
4.08 each of the Purchaser and its Subsidiaries:
(a) is and at all times has been in compliance with all Applicable Laws in all material respects;

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(b) has not received any correspondence or notice from any Governmental Authority, that have not been addressed to such Governmental Authority’s satisfaction, alleging or asserting material noncompliance with any Applicable Laws or any Authorizations;
(c) possesses all material Authorizations reasonably required for the conduct of Purchaser’s Business as currently conducted, and such Authorizations are valid and in full force and effect and the Purchaser, its Subsidiaries and their respective directors and officers are not in violation of any material term of any such Authorization;
(d) other than as disclosed in writing to the Company or the Company’s counsel or disclosed in Purchaser’s Public Record, has not received notice of any pending or threatened claim, suit, proceeding, charge, hearing, enforcement, audit, investigation, arbitration or other action from any Governmental Authority or third party alleging that any operation or activity of the Purchaser, its Subsidiaries or any of their respective directors and officers is in violation of any Applicable Laws or Authorizations that, if finally determined adversely to the Purchaser would be expected to result in a Material Adverse Effect, and has no knowledge that any such Governmental Authority or third party is considering any such claim, suit, proceeding, charge, hearing, enforcement, audit, investigation, arbitration or other action;
(e) has not received notice that any Governmental Authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any material Authorizations and has no knowledge that any such Governmental Authority is considering such action;
(f) has, or has had on its behalf, filed, declared, obtained, maintained or submitted all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws and to keep all material Authorizations in good standing and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were materially complete and correct on the date filed (or were corrected or supplemented by a subsequent submission); and
(g) is not subject to any judgment, order, writ, injunction, decree or award of any Governmental Authority, which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
4.09 no proceedings have been taken, are pending or authorized by either the Purchaser or its Subsidiaries or, to the Purchaser’s knowledge, by any other Person in respect of the bankruptcy, insolvency, liquidation or winding up of either the Purchaser or its Subsidiaries;
4.10 the Purchaser is authorized to issue an unlimited number of Purchaser Common Shares of which 177,059,763 Purchaser Common Shares are issued and outstanding, prior to giving effect to the Amalgamation. As of the Closing Date, the Purchaser will also be authorized to issue an unlimited number of each series of Earn-Out Shares, or which no Earn-Out Shares will be issued and outstanding prior to giving effect to the Amalgamation. Other than as disclosed in the Purchaser’s Public Record, there are no options, warrants, conversion privileges or other rights, agreements, arrangements or commitments (pre-emptive, contingent or otherwise) obligating the Purchaser to issue or sell any Purchaser Common Shares, Earn-Out Shares or any securities or obligations of any kind convertible into, or exercisable or exchangeable for, any Purchaser Common Shares or Earn-Out Shares;

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4.11 the authorized capital of Subco consists of an unlimited number of common shares of which, as of the date hereof, 100 common shares of Subco are issued and outstanding;
4.12 on the Effective Date the Payment Shares will be duly and validly issued and outstanding as fully paid and non-assessable;
4.13 each of the execution and delivery of this Agreement and the Ancillary Agreements, the performance by the Purchaser of its obligations hereunder and the consummation of the transactions contemplated in this Agreement:
(a) has been duly authorized by all necessary corporate action on the part of the Purchaser, other than the approval of the BevCanna Resolution);
(b) does not require and is not subject to any filing with, notice to or other Authorization of any Governmental Authority or any other Person, other than the approval of the Exchange and any Governmental Authority responsible for licensing and regulating the Purchaser’s Business, filings required under Applicable Securities Laws as are contemplated by this Agreement, corporate filings to be completed in connection with giving effect to the creation of the Earn-Out Shares, the Amalgamation and any other consents, approvals, orders, authorizations, declarations or filings which, if not obtained, would not, individually or in the aggregate, have a Material Adverse Effect on the Purchaser or Subco;
(c) does not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both), (i) any Applicable Law; (ii) the Purchaser’s articles (subject to approval of the BevCanna Resolution and corporate filings relating to the amendment of the Purchaser’s articles to create the Earn-Out Preferred Shares), or resolutions of the directors or shareholders of the Purchaser or any of its Subsidiaries; (iii) any contract to which the Purchaser or any of its Subsidiaries is a party or by which it or any of its Subsidiaries are bound except where such conflict, breach, violation or default would not result in a Material Adverse Effect; or (iv) any judgment, decree or order binding the Purchaser or any of its Subsidiaries or the property or Assets thereof; and
(d) does not give any party the right to terminate any Material Contract, by virtue of the application of terms, provisions or conditions in such contract;
4.14 to the knowledge of the Purchaser, none of the materials filed by, or on behalf of, the Purchaser with the applicable Governmental Authorities (including securities regulatory authorities and the Exchange), contained, at the time filed or, if amended, as of the date of such amendment, a misrepresentation (as defined in Securities Laws) or any untrue statement of a material fact or omit to state a material fact necessary in order to make the statement not misleading in light of the circumstances in which it was made. The Purchaser has not filed any confidential material change report which at the date of this Agreement remains confidential;
4.15 since March 31, 2021, there has been no change in the Assets, liabilities (contingent or otherwise), business, affairs, operations, capital or control of the Purchaser and its Subsidiaries

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that individually or in the aggregate has resulted in a Material Adverse Effect and that has not been disclosed to the Company in writing or available in Purchaser’s Public Record; and

4.16 there is not now pending or, to the Purchaser’s knowledge, threatened or contemplated against or affecting the Purchaser or any of its Subsidiaries, or any of their respective Assets, or, to the Purchaser’s knowledge, any officer or director thereof in their capacity as an officer or director thereof, any litigation, action, suit, investigation, claim, complaint or other proceeding, including appeals and applications for review, by or before any Governmental Authority, which if determined adversely to the Purchaser or any of its Subsidiaries, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.

ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company hereby represents and warrants to the Purchaser and Subco as of the date hereof, and acknowledges that the Purchaser and Subco are relying upon each of such representations and warranties in connection with the transactions contemplated hereof, that:

5.01 each of the Company and its Subsidiaries has been duly incorporated or otherwise organized and is validly existing as a corporation under the laws of the applicable jurisdiction, and no steps or proceedings have been taken by any person, voluntary or otherwise, requiring or authorizing the dissolution or winding up of the Company or any Subsidiary;
5.02 each of the Company and its Subsidiaries is duly qualified to carry on its business in each jurisdiction in which the conduct of its business or the ownership, leasing or operation of its property and Assets requires such qualification (except for such jurisdictions where the failure to be so qualified would not result in a Material Adverse Effect) and each has all requisite corporate power and authority to conduct its business and to own, lease and operate its properties and Assets and to execute, deliver and perform its obligations under this Agreement and any other document, filing, instrument or agreement delivered in connection with the transactions contemplated hereof;
5.03 except as set out in the Embark Disclosure Letter, neither the Company nor any of its Subsidiaries is (a) in violation of its articles of incorporation or by-laws; or (b) in default of the performance or observance of any agreement, covenant or condition contained in any contract, indenture, trust deed, joint venture, mortgage, loan agreement, note, lease or other agreement or instrument to which it is a party or by which it or its property may be bound, except in the case of clause (b) for any such violations or defaults that do not and would not reasonably be expected to result in a Material Adverse Effect;
5.04 except as set out in the Embark Disclosure Letter and other than Embark Woodstock Inc., Embark Delta Inc., Embark Nano Inc. and Embark Health International Inc., of which the Company is the beneficial owner of 100% of the issued and outstanding securities in the capital of each such Subsidiary, the Company has no direct or indirect investment in any person which currently accounts for or which, for the financial year ended December 31, 2019 and the financial quarter ended March 31, 2021, accounted for, more than five percent of the assets or revenues of the Company or would otherwise be material to the business and affairs of the

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Company. Except as set out in the Embark Disclosure Letter, the Company owns all of the issued and outstanding shares of Embark Woodstock Inc., Embark Delta Inc., Embark Nano Inc. and Embark Health International Inc. in each case free and clear of all Liens whatsoever other than Permitted Liens, and other than contemplated by this Agreement, including, for certainty, section 5.21 of this Agreement, no person has any agreement, option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement, for the purchase from the Company or any of the Subsidiaries of the Company of any interest in any of the shares in the capital of the Subsidiaries of the Company;

5.05 each of the Company and its Subsidiaries owns or has the right to use all Assets currently owned or used in Embark’s Business, including: (a) all contracts that are material to its Business; and (b) all Assets necessary to enable the Company to carry on Embark’s Business as now conducted and as presently conducted;
5.06 except as set forth in the Embark Disclosure Letter, and Permitted Liens, no third party has any ownership right, title, interest in, claim in, Lien against or any other right to the Assets purported to be owned by the Company and its Subsidiaries, other than in connection with security interests granted to landlords in connection with the lease agreements entered into by the Company and the landlords in the ordinary course;
5.07 each of the Company, its Subsidiaries and their respective directors and officers (as applicable):
(a) is and at all times has been in compliance with all Applicable Laws in all material respects;
(b) has not received any correspondence or notice from any Governmental Authority, that have not been addressed to such Governmental Authority’s satisfaction, alleging or asserting material noncompliance with any Applicable Laws or any Authorizations;
(c) possesses all material Authorizations reasonably required for the conduct of Embark’s Business as currently conducted, and such Authorizations are valid and in full force and effect and the Company, its Subsidiaries and their respective directors and officers are not in violation of any material term of any such Authorizations;
(d) except as set forth in the Embark Disclosure Letter, has not received notice of any pending or threatened claim, suit, proceeding, charge, hearing, enforcement, audit, investigation, arbitration or other action from any Governmental Authority or third party alleging that any operation or activity of the Company, its Subsidiaries or any of their respective directors and officers is in violation of any Applicable Laws or Authorizations that, if finally determined adversely to the Purchaser would be expected to result in a Material Adverse Effect, and has no knowledge or reason to believe that any such Governmental Authority or third party is considering any such claim, suit, proceeding, charge, hearing, enforcement, audit, investigation, arbitration or other action;
(e) has not received notice that any Governmental Authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any material Authorizations and has no knowledge or reason to believe that any such Governmental Authority is considering such action;

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(f) has, or has had on its behalf, filed, declared, obtained, maintained or submitted all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws and to keep all material Authorizations in good standing and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were materially complete and correct on the date filed (or were corrected or supplemented by a subsequent submission); and
(g) is not subject to any judgment, order, writ, injunction, decree or award of any Governmental Authority, which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
5.08 the Disclosure Letter provides a complete and accurate description of each Cannabis Act license held by the Company or any Subsidiary of the Company as of the date hereof, which includes the date, type, capacity, expiry date and production/distribution authorizations and limitations and all written correspondence or written notice received from Health Canada in relation to the Cannabis Act licences have been provided to or made available to the Purchaser;
5.09 to the knowledge of the Company, there is no legislation, or proposed legislation (published by a legislative body), which it anticipates will have a Material Adverse Effect on the Company;
5.10 all product research and development activities, including quality assurance, quality control, testing, and research and analysis activities, conducted by the Company and its Subsidiaries in connection with its Business is being conducted in accordance with the Company’s internal policies, guidelines and protocols and, in all material respects, with all Applicable Laws and best industry practices applicable to its Business; all processes, procedures and practices, required in connection with such activities, are in place as necessary to satisfy all Applicable Laws and best industry practices applicable to its Business and the Company’s internal policies, guidelines and protocols and are being complied with, in all material respects;
5.11 the Company’s 2019 Financial Statements have been, and the Company’s 2020 Financial Statements will be when delivered, prepared in accordance with IFRS, are consistent in all material respects with the books and records of the Company, present fully, fairly and accurately the Company’s Assets, liabilities (whether accrued, absolute, contingent or otherwise) and financial condition of the Company as of the respective dates thereof and the results of operations and changes in financial position for the respective periods then ended and there are no material off-balance sheet transactions, arrangements or obligations (including contingent obligations) of the Company or other Persons;
5.12 no proceedings have been taken, are pending or authorized by either the Company or its Subsidiaries or, to the Company’s knowledge, by any other Person in respect of the bankruptcy, insolvency, liquidation or winding up of either the Company or its Subsidiaries;
5.13 the Company and each of its Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurances that: (a) transactions are executed in accordance with management’s general or specific authorization; and (b) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain accountability for assets;

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5.14 except for the approval of the Exchange in connection with the Acquisition and the matters contemplated herein, no Authorization or declaration or filing with any Governmental Authority on the part of the Company is required for the valid execution, delivery and performance of its obligations under this Agreement or the completion of the Acquisition pursuant to this Agreement;
5.15 the Company is not a party to or bound or affected by any commitment, agreement or document which would prohibit or restrict the Company from entering into this Agreement and completing the Acquisition;
5.16 except as set forth in the Embark Disclosure Letter and Permitted Liens, each of the Company and its Subsidiaries has good and marketable title to all of its respective Assets free and clear of any Liens;
5.17 except as set forth in the Embark Disclosure Letter, the Company and each of its Subsidiaries has no obligations or commitments to incur any expenses of any sort whatsoever from the date hereof until completion of the Acquisition, other than expenses incurred in the ordinary course of business and expenses relating to the completion of the Acquisition;
5.18 the authorized capital of the Company consists of an unlimited number of Embark Common Shares and an unlimited number of preferred shares of the Company of which, as of the date hereof, 30,941,059 Embark Common Shares and nil preferred shares of the Company are issued and outstanding;
5.19 all outstanding shares of the Company have been duly authorized and validly issued and are fully paid and non-assessable and have been issued in compliance with all Applicable Laws and Securities Laws;
5.20 there are no securities of the Company or of any of its Subsidiaries outstanding which have the right to vote generally (or are convertible into or exchangeable for securities having the right to vote generally) with the holders of the outstanding Company Shares on any matter. There are no outstanding contractual or other obligations of the Company to repurchase, redeem or otherwise acquire any of its securities or with respect to the voting or disposition of any of its outstanding securities. There are no outstanding bonds, debentures or other evidences of Indebtedness of the Company or any of its subsidiaries having the right to vote with the holders of the outstanding shares of the Company on any matters.
5.21 other than:
(a) the
- (i) 4,449,468 Embark Warrants (each exercisable to acquire one Embark Common Share at an exercise price of $1.75);
- (ii) 2,381,473 Embark Warrants (each exercisable to acquire one Embark Common Share at an exercise price of $4.80);

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(iii) 1,200,000 Embark Warrants (each exercisable to acquire one Embark Common Share at an exercise price of $1.75, subject to certain adjustments);
(b) the 96,020 Embark Compensation Securities (each exercisable to acquire one unit of the Company at an exercise price of $3.20, with each such unit consisting of one Embark Common Share and one Embark Warrant, each Embark Warrant exercisable to acquire one Embark Common Share at an exercise price of $4.80);
(c) $5,159,031.56 principal amount of the Embark Grid Note (the principal and accrued interest of such Embark Grid Note is convertible into units of the Company at a conversion price of $1.75, with each such unit consisting of one Embark Common Share and one Embark Warrant, each whole Embark Warrant exercisable to acquire one Embark Common Share at an exercise price of $2.00);
(d) $750,000 principal amount of the Embark Convertible Debentures (the principal and accrued interest of such Embark Convertible Debentures is convertible into Embark Common Shares at a conversion price equal to the lesser of: (i) a 15% discount to the price attributable to the Embark Common Shares issued in connection with a Qualified Offering; and (ii) $2.00);
(e) $375,000 principal amount of the Nano Convertible Debentures (the principal and accrued interest of such Nano Convertible Debentures is convertible into Embark Common Shares at a conversion price of $4.01);
(f)
up to:
(i) 2,500,000 Embark Common Shares issuable upon the satisfaction of the conditions set forth in the Services Agreement; and
(ii) 1,250,000 Embark Warrants issuable upon the satisfaction of the conditions set forth in the Services Agreement (each exercisable to acquire one Embark Common Share at an exercise price of $1.75); and
(iii) 480,750 Embark Common Shares issuable upon the exercise of common share purchase warrants of Embark Nano Inc. (the “ Nano Warrants ”);

(g) the Incentive Agreements,

there are no other options, warrants, stock appreciation rights, restricted stock units, conversion privileges or other rights, agreements, arrangements or commitments (pre-emptive, contingent or otherwise) of any character whatsoever requiring or which may require the issuance, sale or transfer by the Company or its Subsidiaries of any securities of the Company or any Subsidiary, or any securities or obligations convertible into, or exchangeable or exercisable for, or otherwise evidencing a right or obligation to acquire, any securities of the Company or any Subsidiary;

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5.22 each of the execution and delivery of this Agreement and the Ancillary Agreements, the performance by the Company of its obligations hereunder and the consummation of the transactions contemplated in this Agreement:
(a) has been duly authorized by all necessary corporate action on the part of the Company, other than the approval of the Company’s shareholders in respect of the Amalgamation;
(b) does not require and is not subject to any filing with, notice to or other Authorization of any Governmental Authority or any other Person, other than the approval of the Exchange and any Governmental Authority responsible for licensing and regulating Embark’s Business;
(c) does not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under (whether after notice or lapse of time or both): (i) any Applicable Law; (ii) the Company’s articles (as may be amended from time to time), the Company’s by-laws or resolutions of the directors or shareholders of the Company or its Subsidiaries; (iii) any contract to which the Company or its Subsidiaries is a party or by which it is bound except where such conflict, breach, violation or default would not result in a Material Adverse Effect; or (iv) any judgment, decree or order binding the Company or its Subsidiaries or the property or Assets thereof; and
(d) do not give a party the right to terminate any Material Contract;
5.23 each of this Agreement and the Ancillary Agreements has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting creditors’ rights generally, general principles of equity, and the qualifications that equitable remedies may only be granted in the discretion of a court of competent jurisdiction and except that rights of indemnity, contribution, waiver and the ability to sever unenforceable terms may be limited under Applicable Laws;
5.24 each of the Company and its Subsidiaries, and their respective directors and officers:
(a) is and at all times has been in compliance with all Applicable Laws in all material respects;
(b) has not received any correspondence or notice from any Governmental Authority alleging or asserting material non-compliance with any Applicable Laws or any Authorizations;
(c) has not received notice of any pending or threatened claim, suit, proceeding, charge, hearing, enforcement, audit, investigation, arbitration or other action from any Governmental Authority or third party alleging that any operation or activity of the Company or any of its Subsidiaries, or any of their respective directors or officers is in violation of any Applicable Laws, Authorizations or agreements that, if finally determined adversely to the Company or any of its Subsidiaries, or their respective directors or officers would be expected to result in a Material Adverse Effect, and has no

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knowledge or reason to believe that any such Governmental Authority or third party is considering any such claim, suit, proceeding, charge, hearing, enforcement, audit, investigation, arbitration or other action;

(d) has not received notice that any Governmental Authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any material Authorizations and has no knowledge or reason to believe that any such Governmental Authority is considering such action;
(e) has, or has had on its behalf, filed, declared, obtained, maintained or submitted all reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were materially complete and correct on the date filed (or were corrected or supplemented by a subsequent submission); and
(f) is not subject to any judgment, order, writ, injunction, decree or award of any Governmental Authority, which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
5.25 the Embark Disclosure Letter includes a complete and accurate list of all Material Contracts of the Company and its Subsidiaries and the Company has made available to the Purchaser true and complete copies of all such Material Contracts; except as set forth in the Embark Disclosure Letter, all material contracts to which the Company is a party are in good standing in all material respects and in full force and effect and neither the Company nor its Subsidiaries nor, to the knowledge of the Company, any other party thereto is in material default or breach of any material contract and there exists no condition, event or act which, with the giving of notice or lapse of time or both would constitute a material default or breach under any material contract which would give rise to a right of termination on the part of any other party to a contract; the Company has not waived any material rights under such Material Contracts; all such Material Contracts are valid and binding obligations of the Company or the Subsidiary, as applicable, enforceable in accordance with their respective terms, except as may be limited by bankruptcy, insolvency and other laws affecting the enforcement of creditors’ rights generally and subject to the qualification that equitable remedies may only be granted in the discretion of a court of competent jurisdiction; no notice has been received indicating that a party to a Material Contract intends to cancel, terminate or otherwise modify or not renew such Material Contract, and to the Company’s knowledge, no such action has been threatened; except as disclosed in the Embark Disclosure Letter, no consents, approvals or notices are required to be obtained from, or given to, any third party under any Material Contract of the Company or any Subsidiary in order for the Company to proceed with the execution and delivery of this Agreement and the consummation of the Amalgamation and the other transactions contemplated by this Agreement;
5.26 the Company is a “taxable Canadian corporation” for purposes of the Tax Act and, except as set forth in the Embark Disclosure Letter, all Taxes due and payable or required to be collected or withheld and remitted by the Company and each of its Subsidiaries have been paid, collected or withheld and remitted as applicable when due, except where the failure to pay such Taxes

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would not have a Material Adverse Effect. All tax returns, declarations, remittances and filings required to be filed by the Company and its Subsidiaries have been filed with all appropriate authorities and all such returns, declarations, remittances and filings are complete and accurate in all material respects and no material fact or facts have been omitted therefrom which would make any of them misleading, except where the failure to file such documents would not have a Material Adverse Effect. To the knowledge of the Company, no examination of any tax return of the Company or any of its Subsidiaries is currently in progress and there are no issues or disputes outstanding with any Governmental Authority respecting any Taxes that have been paid, or may be payable, by the Company or any of its Subsidiaries, except where such examinations, issues or disputes would not have a Material Adverse Effect; there are no proceedings, investigations or audits pending or, to the knowledge of the Company, threatened against or affecting the Company in respect of any Taxes and no event has occurred or circumstance exists which could reasonably be expected to give rise to or serve as a valid basis for the commencement of any such proceeding, investigation or audit; there are no agreements, waivers or other arrangements with any taxation authority providing for an extension of time for any assessment or reassessment of Taxes with respect to the Company;

5.27 the financial books, records and accounts of the Company: (i) have been maintained in all material respects in accordance with Applicable Laws; (ii) are stated in reasonable detail and accurately and fairly reflect in all material respects the material transactions, acquisitions and dispositions of the assets of the Company; and (iii) accurately and fairly reflect in all material respects the basis for the Company’s 2019 Financial Statements and the Company’s 2020 Financial Statements and, except as set forth in the Embark Disclosure Letter, the Company and each of its Subsidiaries, have established on their books and records reserves that are adequate for the payment of all Taxes not yet due and payable;
5.28 except as set forth in the Embark Disclosure Letter, other than in connection with the Amalgamation, neither the Company nor any of its Subsidiaries is currently party to any agreement in respect of: (a) the purchase of any material property or assets or any interest therein or the sale, transfer or other disposition of any material property or assets or any interest therein currently owned, directly or indirectly, by the Company or its Subsidiaries whether by asset sale, transfer of shares or otherwise; or (b) the change of control of the Company or any of its Subsidiaries (whether by sale or transfer of shares or sale of all or substantially all of the property and Assets of the Company or any of its Subsidiaries or otherwise);
5.29 except as set forth in the Embark Disclosure Letter, there are no termination or severance payments that will become payable to any director, officer, consultant or employee of the Company or any of its Subsidiaries as a result of the consummation of any of the matters contemplated hereby (including as a result of the Acquisition, the Amalgamation or the direct or indirect change of control of the Company or any of its Subsidiaries);
5.30 neither the Company or any of its Subsidiaries has any agreement, plan or practice relating to the payment of any management, consulting, service or other fee or any bonus, stock purchase, pensions, share of profits or retirement allowance, deferred compensation, insurance, legal benefits, unemployment benefits, vacation, incentive, health or other employee benefit other than in the ordinary course of business for a company in the Company’s Business;

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5.31 there is no agreement, plan or practice relating to the payment of any management, consulting, service or other fee or any bonus, stock purchase, pensions, share of profits or retirement allowance, deferred compensation, insurance, legal benefits, unemployment benefits, vacation, incentive, health or other employee benefit other than in the ordinary course of business;
5.32 except as set forth in the Embark Disclosure Letter, none of the directors or officers of the Company or any associate or Affiliate of any of the foregoing has any material interest, direct or indirect, in any material transaction or any proposed material transaction with the Company that materially affects, is material to or will materially affect the Company;
5.33 except as set forth in the Embark Disclosure Letter, neither the Company nor any of its Subsidiaries has, directly or indirectly, declared or paid any dividend or declared or made any other distribution on any of their respective shares or other securities or, directly or indirectly, redeemed, purchased or otherwise acquired any of their respective shares or other securities or agreed to do any of the foregoing;
5.34 the minute books and records of the Company and its Subsidiaries made available to counsel for the Purchaser in connection with its due diligence investigation of the Company for the periods from the respective dates of incorporation or formation of the Company and the Subsidiaries to the date hereof are all of the minute books and records of the Company and its Subsidiaries and contains copies of all significant proceedings of the shareholders, the boards of directors and all committees of the boards of directors of the Company and its Subsidiaries to the date hereof and there have not been any other material formal meetings, resolutions or proceedings of the shareholders, boards of directors or any committees of the boards of directors of the Company or the Subsidiaries to the date hereof not reflected in such minute books and other records other than those which have been disclosed in writing to the Purchaser or at or in respect of which no material corporate matter or business was approved or transacted;
5.35 no order, ruling or determination having the effect of suspending the sale or ceasing the trading in any securities of the Company has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are pending, contemplated or threatened by any regulatory authority;
5.36 the Company has not entered into any agreement, understanding or other commitment or arrangement which could entitle any Person to any valid claim against the Purchaser, Subco or the Company for a broker’s commission, finder’s fee or any like payment or obligation in respect of the Acquisition or any other matters contemplated hereby;
5.37 (a) each of the Company and its Subsidiaries, its Assets and the operation of Embark’s Business, have been and are, to the knowledge of the Company, in compliance in all material respects with all Environmental Laws; (b) neither the Company nor its Subsidiaries are in violation of any regulation relating to the release or threatened release of Hazardous Materials; (c) each of the Company and its Subsidiaries has complied in all material respects with all reporting and monitoring requirements under all Environmental Laws; (d) neither the Company nor its Subsidiaries has ever received any notice of any material non-compliance in respect of any Environmental Laws; and (e) there are no events or circumstances that might reasonably be expected to form the basis of an order for clean up or remediation, or an action, suit or

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proceeding by any private party or governmental body or agency, against or affecting the Company relating to Hazardous Materials or any Environmental Laws;

5.38 other than the lands legally described as PART OF LOTS 168C-170C PLAN 293 AND PART OF FIRST STREET PLAN 293 (CLOSED BY 484) BEING PARTS 9 & 10, 41R9639; CITY OF WOODSTOCK, neither the Company no any of its Subsidiaries are the registered or beneficial holders of any Owned Premises;
5.39 the Company and its Subsidiaries occupy the Material Premises and have the exclusive right to occupy and use the Material Premises (as tenant only in respect of the Leased Premises) and each of the leases pursuant to which the Company or such Subsidiary occupies the Material Premises is in good standing and in full force and effect under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made or proposed to be made of such property and buildings by the Company or such Subsidiary;
5.40 the Company owns or has the right to use all of the Intellectual Property necessary for Embark’s Business as of the date hereof. All registrations (or applications for registrations), if any, and filings that the Company has considered necessary to preserve the rights of the Company in the Intellectual Property have been made and are in good standing. The Company has no pending action or proceeding, nor, to the knowledge of the Company, any threatened action or proceeding, against any person with respect to the use of the Intellectual Property, and there are no circumstances which cast reasonable doubt on the validity or enforceability of the Intellectual Property necessary for Embark’s Business. The conduct of Embark’s Business does not, to the knowledge of the Company, infringe upon the intellectual property rights of any other Person. Other than as disclosed in writing to the Purchaser, the Company has no pending action or proceeding, nor, to the knowledge of the Company, is there any threatened action or proceeding against it with respect to the Company’s use of the Intellectual Property;
5.41 no material labour dispute with current and former employees or consultants of the Company or any of its Subsidiaries exists, or, to the knowledge of the Company, is imminent and the Company is not aware of any existing, threatened or imminent labour disturbance by the employees of any of the principal suppliers, manufacturers or contractors of the Company that would have a Material Adverse Effect;
5.42 the Company and its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; and the Company has no reason to believe that it will not be able to renew the existing insurance coverage of the Company and its Subsidiaries as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect and such insurance coverage is in good standing in all material respects and not in default;
5.43 since March 31, 2021, there has been no change in the Assets, liabilities (contingent or otherwise), business, affairs, operations, capital or control of the Company and its Subsidiaries that has resulted in a Material Adverse Effect and that has not been disclosed in writing to the Purchaser or in the Embark Circular;

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5.44 neither the Company nor any Subsidiary nor, to the knowledge of the Company, any director, officer, employee, consultant, representative or agent of the foregoing, has (a) violated any antibribery or anti-corruption laws applicable to the Company or its Subsidiaries, including but not limited to the Corruption of Foreign Public Officials Act (Canada) and the U.S. Foreign Corrupt Practices Act; or (b) offered, paid, promised to pay, or authorized the payment of any money, or offered, given, promised to give, or authorized the giving of anything of value, that goes beyond what is reasonable and customary and/ or of modest value: (i) to any Governmental Authority, whether directly or through any other Person, for the purpose of influencing any act or decision of a Governmental Authority; inducing a Governmental Authority to do or omit to do any act in violation of its lawful duties; securing any improper advantage; inducing any Person to influence or affect any act or decision of any Governmental Authority; or assisting any representative of the Company or any Subsidiary in obtaining or retaining business for or with, or directing business to, any Person; or (ii) to any Person in a manner which would constitute or have the purpose or effect of public or commercial bribery, or the acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business or any improper advantage. Neither the Company nor any Subsidiary nor, to the knowledge of the Company, any director, officer, employee, consultant, representative or agent of foregoing, has (a) conducted or initiated any review, audit, or internal investigation that concluded the Company or any Subsidiary, or any director, officer, employee, consultant, representative or agent of the foregoing violated such laws or committed any material wrongdoing; or (b) made a voluntary, directed, or involuntary disclosure to any Governmental Authority responsible for enforcing anti-bribery or anti-corruption laws, in each case with respect to any alleged act or omission arising under or relating to non-compliance with any such laws, or received any notice, request, or citation from any Person alleging non-compliance with any such laws;
5.45 the operations of the Company and each Subsidiary are and have been conducted at all times in compliance with applicable financial record-keeping and reporting requirements of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, and the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any Governmental Authority (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or Governmental Authority or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened;
5.46 there is not now in progress, pending or, to the Company’s knowledge, threatened or contemplated against or affecting the Company or any of its Subsidiaries, or any of their respective Assets, or any officer or director thereof in their capacity as an officer or director thereof, any litigation, action, suit, investigation, claim, complaint or other proceeding, including appeals and applications for review, by or before any Governmental Authority, which if determined adversely to the Company or any of its Subsidiaries, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
5.47 except for the shareholders agreement of Embark dated May 28, 2018, the Company is not a party to any shareholder, pooling, voting trust or other similar agreement or arrangement relating to the issued and outstanding shares in the capital of Embark or pursuant to which any

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Person may have any right or claim in connection with any existing or past equity interest in the Company and the Company has not adopted a shareholder rights plan;

5.48 the execution, delivery and performance by the Company of its obligations under this Agreement and the consummation by Company of the Amalgamation and the other transactions contemplated by this Agreement do not require any Authorization or other action by or in respect of, or filing with, or notification to, any Governmental Entity by Embark other than:
(a) the Embark Shareholder Approval;
(b) filings required under the BCBCA;
(c) the approval of the Exchange;
(d) such registrations and other actions required under Applicable Securities Laws as are contemplated by this Agreement and registrations and applications required as a result of the formation of Amalco; and
(e) any other consents, approvals, orders, authorizations, declarations or filings which, if not obtained, would not, individually or in the aggregate, have a Material Adverse Effect on Naturo.
5.49 the Company’s Board of Directors has unanimously:
(a) determined that the Continuance and the Amalgamation are in the best interests of the Company;
(b) determined to recommend that the Embark Shareholders vote in favour of the Embark Resolution; and
(c) authorized the entering into of this Agreement, and the performance of the Company’s obligations hereunder;
5.50 the aggregate value of the Company’s assets in Canada and the annual gross revenues from sales in or from Canada generated by those assets, all as determined as of the time and in the manner that are prescribed in Part IX of the Competition Act and the Notifiable Transactions Regulations thereunder, do not exceed the amount determined under Subsection 110(8) of the Competition Act ; and
5.51 no representation or warranty by the Company in this Agreement and no statement contained in the Disclosure Letter or any certificate or other document furnished or to be furnished to Purchaser under this Agreement contains any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained therein, in the light of the circumstances in which they are made, not misleading.

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ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE VENDORS

As an inducement to Purchaser and Subco to enter into this Agreement and to complete the transactions contemplated hereby, each Vendor, severally and not jointly with the other Vendors, represents and warrants to the Purchaser and Subco as follows.

6.01 It has the requisite legal capacity to execute and deliver this Agreement and each Ancillary Agreement to which it is a party, to perform its obligations hereunder and thereunder and to complete the Amalgamation. This Agreement has been, and each Ancillary Agreement to be executed and delivered at the Closing will be, duly and validly executed and delivered by it, and (assuming due authorization, execution and delivery by the Purchaser and Subco) this Agreement constitutes, and each such Ancillary Agreement when so executed and delivered (assuming due authorization, execution and delivery by the other parties thereto) will constitute, the legal, valid and binding obligation of it, enforceable against it in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws affecting creditors’ rights generally, general principles of equity, and the qualifications that equitable remedies may only be granted in the discretion of a court of competent jurisdiction and except that rights of indemnity, contribution, waiver and the ability to sever unenforceable terms may be limited under Applicable Laws;
6.02 The execution and delivery by it of this Agreement and each Ancillary Agreement to which it is a party do not, and the completion by it of the transactions contemplated hereby and thereby will not: (i) conflict with or violate any Applicable Laws binding upon or applicable to it or any of its Embark Common Shares; or (ii) result in a breach of the terms, conditions or provisions of, constitute a default or an event that, with notice or lapse of time or both, would become a default under, give to others any rights of acceleration, termination or cancellation or a loss of rights under, or result in the creation or imposition of any Lien upon its Embark Common Shares;
6.03 It owns, beneficially and of record, and has good and valid title to, the number of Embark Common Shares set forth opposite such Vendor’s name in Schedule “A”, free and clear of any and all Liens; and
6.04 There is no action pending or, to its knowledge, threatened against or affecting it that, if determined or resolved adversely to it, would have a material adverse effect on its ability to perform its obligations hereunder.

ARTICLE VII SURVIVAL OF REPRESENTATIONS AND WARRANTIES

7.01 The representations and warranties of the Purchaser, the Company and Subco contained in this Agreement shall survive Closing for a period of 15 months after the Effective Date.

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ARTICLE VIII COVENANTS OF THE COMPANY

Until the earlier of the Closing Date and the date of termination of this Agreement in accordance with Article XIV, the Company hereby covenants and agrees with the Purchaser as follows:

8.01 The Purchaser and/or its directors, officers, auditors, counsel and other authorized representatives shall be permitted to make such commercially reasonable investigations of the properties, Assets and business of the Company and of its financial and legal condition as the Purchaser reasonably deems necessary or desirable, provided always that such investigations shall not unduly interfere with the operations of the Company. If reasonably requested, the Company shall provide copies, at the cost of the Purchaser, of the Company’s corporate records, including its minute books, share ledgers and the records maintained in connection with the business of the Company. Such investigations will not, however, affect or mitigate in any way the representations and warranties contained in this Agreement, which representations and warranties shall continue in full force and effect for the benefit of the Purchaser.
8.02 The Company shall use commercially reasonable efforts to obtain from the Company’s directors and shareholders and from all applicable Governmental Authorities such approvals or consents as are required (if any) to complete the transactions contemplated herein.
8.03 The Company shall deliver to the Purchaser executed Voting Support Agreements, in the form attached as Schedule “N” hereto, from Embark Shareholders representing at least 40% of the issued and outstanding Embark Shares as of the date hereof, as soon as reasonably practicable but in any event prior to the record date for the Embark Meeting.
8.04 The Company shall ensure that the Embark Circular complies in all material respects with Applicable Law, does not contain any “misrepresentation” (as such term is defined under the Securities Act (Ontario)) regarding the Company or its Subsidiaries and provides shareholders of the Company with sufficient information to permit them to form a reasoned judgment concerning the matters to be placed before the Meeting. Without limiting the generality of the foregoing, the Embark Circular must include: (a) a statement that the Company’s Board has unanimously determined that the Continuation and the Amalgamation is in the best interests of the Company and its security holders and that the Company’s Board unanimously recommends that the shareholders of the Company vote in favour of the Continuation and the Amalgamation (the “ Company’s Board Recommendation ”); and (b) a statement that each director and officer of the Company intends to vote all of such individual’s Embark Common Shares in favour of each of the Continuation and the Amalgamation and against any resolution submitted by any shareholder of the Purchaser that is inconsistent with the Continuation, the Amalgamation or any matters inconsistent with the Acquisition.
8.05 Subject to the conditions therefor being satisfied, the Company shall use commercially reasonable efforts to ensure that, at or prior to the Effective Date, all outstanding Embark Convertible Debentures and Shareholder Loans have been duly converted, exchanged, exercised or deemed converted, exchanged or exercised, as applicable, by the holders thereof for the applicable securities of the Company in accordance with the terms of the Embark Convertible Debentures and Shareholder Loans, as may be amended from time to time.

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8.06 The Company will maintain its corporate status and comply with all Applicable Laws (including Securities Laws) in all material respects prior to Closing.
8.07 The Company shall provide prompt and full disclosure to the Purchaser of any material information, change or event in the business, operations, financial condition or other affairs of the Company prior to the Closing.
8.08 The Company acknowledges that upon completion of the Acquisition, the Purchaser shall be the sole shareholder of Amalco and as of the Effective Time, the Company shall be under no contractual obligations to issue Embark Common Shares to any third parties, other than the Embark Warrants.
8.09 The Company shall not, without the prior approval of the Purchaser, such approval not to be unreasonably withheld, conditioned or delayed, issue or amend any securities, options, debt or financial instruments of any kind, other than:
(a) as contemplated in this Agreement;
(b) as summarized in the Embark Disclosure Letter; and
(c) in connection with the issuance of Embark Shares pursuant to the exchange, transfer, conversion, satisfaction or exercise of existing outstanding securities or existing contractual commitments to issue Embark Shares,

in each case, subject to such issuance being in compliance with Applicable Law and the policies of the Exchange.

8.10 Without limiting the generality of the foregoing, except as expressly permitted or required by this Agreement or as approved in writing by the Purchaser, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, the Company will not, and will not authorize or take any other action to cause or permit any Subsidiary to, and will not authorize or take any other action to cause or permit any Subsidiary to:
(a) amend or otherwise change the articles or by-laws of the Company or any of its Subsidiaries;
(b) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or other property) in respect of any share capital or other equity interests of the Company or any of its Subsidiaries;
(c) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;
(d) make any material change in the operation of business, except such changes as may be required to comply with this Agreement, any Ancillary Agreement or any Applicable Laws;

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(e) waive or release any material right or claim of the Business, including any write-off or other compromise of any account receivable, other than in the ordinary course of business consistent with past practice
(f) enter into any transaction with any of its Affiliates, except transactions that are at prices and on terms and conditions not less favorable to the Company or any of its Subsidiaries than could be obtained on an arm’s-length basis from unrelated third parties and except for transactions solely between Company and any of its Subsidiaries;
(g) make any change in the accounting methods, principles or policies of the Company, other than any change required by Applicable Laws or a change in IFRS;
(h) fail to use its best efforts to take all required steps and actions (including the payment of all fees and expenses) necessary to obtain, and maintain in good standing, any Authorizations; or
(i) enter into any contract or agreement with respect to any of the foregoing.
8.11 The Company shall:
(a) use commercially reasonable efforts to obtain the approval of the Embark Resolution;
(b) promptly advise BevCanna of the number of Embark Shares for which the Company receives notices of dissent or written objections to the Continuation or the Amalgamation;
(c) have a senior officer execute an Affidavit to be delivered in connection with the Amalgamation Application and take all actions required in relation to the swearing of such Affidavit; and
(d) convene and conduct the Embark Meeting on or before November 15, 2021, or such later date as may be mutually agreed to by BevCanna and the Company, and not adjourn, postpone or cancel (or propose the adjournment, postponement or cancellation of) the Embark Meeting without the prior written consent of BevCanna, except in the case of an adjournment, as required for quorum purposes.
8.12 The Company shall use commercially reasonable efforts to cause each of the conditions precedent in sections 12.01 and 12.02 to be complied with.

ARTICLE IX COVENANTS OF THE PURCHASER

Until the earlier of the Closing Date and the date of termination of this Agreement in accordance with Article XIV, the Purchaser hereby covenants and agrees with the Company as follows:

9.01 The Company and/or its directors, officers, auditors, counsel and other authorized representatives shall be permitted to make such commercially reasonable investigations of the property, Assets and business of the Purchaser and of its financial and legal condition as the

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Company reasonably deems necessary or desirable, provided that such investigations shall not unduly interfere with the operations of the Purchaser. If reasonably requested, the Purchaser shall provide copies, at the cost of the Company, of the Purchaser’s corporate records, including its minute books, share ledgers and the records maintained in connection with the business of the Purchaser. Such investigations will not, however, affect or mitigate in any way the representations and warranties contained in this Agreement, which representations and warranties shall continue in full force and effect for the benefit of the Company.

9.02 The Purchaser shall use commercially reasonable efforts to obtain from the Purchaser’s directors and shareholders and from all applicable Governmental Authorities (including the Exchange) or any other Person such approvals or consents as are required to complete the transactions contemplated herein, provided that the Company complies with its covenants under section 9.03 and section 8.08, and for clarity, the Purchaser shall not be responsible for the rejection of the Acquisition and other matters contemplated in this section 9.02 by the Exchange for reasons that are outside of its reasonable control, including, but not limited to, the inability of the Company to meet the listing requirements of the Exchange or the requirement under the listing requirements or rules of the Exchange that the Purchaser obtain shareholder approval in order to obtain the Exchange Conditional Approval.
9.03 The Purchaser shall obtain the requisite Exchange conditional approval for the Acquisition, including the issuance of the Payment Shares.
9.04 The Purchaser will maintain its corporate status and comply with all Applicable Laws (including Securities Laws) in all material respects and Exchange requirements (including any applicable filing requirements) until the Closing.
9.05 The Purchaser agrees to provide prompt and full disclosure to the Company of any material information, change or event in the business, operations, financial condition or other affairs of the Purchaser prior to the Closing.
9.06 The Purchaser will prepare or cause to be prepared and file or cause to be filed all tax returns of the Company for all taxable periods to the extent such Tax Returns are filed or required to be filed on or after the Effective Date. Such tax returns will be prepared in accordance with past practice of the Company, subject to any advice regarding the preparation of such tax returns received from the Purchaser’s professional advisors. The Purchaser will provide drafts of the tax returns described in the preceding sentence to the Shareholder Representative not less than thirty (30) days before the due date for the filing of those tax returns (including applicable extensions) to allow the Shareholder Representative to review and comment on each such tax return prepared or caused to be prepared by the Purchaser, such review at the Shareholder Representative’s sole cost and expense. The Purchaser will permit the Shareholder Representative and its authorized representatives reasonable access to the books and records of the Company and its Subsidiaries as the Shareholder Representative may reasonably require for the purpose of reviewing the tax returns. At least ten (10) days prior to the filing date for such tax returns, the Shareholder Representative, acting reasonably, will provide any comments on the tax returns to the Purchaser. The Purchaser will consider in good faith all reasonable comments of the Shareholder Representative with respect to such tax returns prior to filing.

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9.07 The Purchaser shall use commercially reasonable efforts to cause each of the conditions precedent in sections 12.01 and 12.03 to be complied with.

ARTICLE X COVENANTS OF SUBCO

Until the earlier of the Closing Date and the date of termination of this Agreement in accordance with Article XIV, Subco hereby covenants and agrees with the Company as follows:

10.01 Use commercially reasonable efforts to cause each of the conditions precedent in section 12.03 to be complied with.
10.02 Until the Effective Date,
(a) not conduct any business (other than as required in connection with the Amalgamation), and maintain and preserve its corporate existence; and
(b) except as contemplated in this Agreement, not directly or indirectly, amend its constating documents, declare, set aside or pay any dividend or other distribution or payment or otherwise to or for the benefit of its shareholders or reduce its stated capital (other than as may be agreed to in writing by the Parties).
10.03 Subject to the approval of the Embark Shareholder Resolution and subject to the obtaining of all applicable regulatory approvals, including the conditional approval of the Exchange, thereafter jointly with the Company, file the articles of amalgamation and such other documents as may be required to give effect to the Amalgamation upon and subject to the terms and conditions of this Agreement.

ARTICLE XI ADDITIONAL COVENANTS REGARDING NON-SOLICITATION

11.01 The Vendors and the Company shall not, and the Company shall cause its Subsidiaries not to, directly or indirectly, through any officer, director, employee, shareholder, consultant, representative (including any financial or other adviser) or an agent of it or any of its Subsidiaries (collectively “Representatives”), or otherwise, and shall not permit or authorize any such Person to:
(a) solicit, initiate, knowingly facilitate, encourage or promote (including by way of furnishing or providing copies of, access to, or disclosure of, any Confidential Information, properties, facilities, books or records of the Company or any Subsidiary 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 Acquisition Proposal;
(b) enter into or otherwise engage or participate in any discussions or negotiations with any Person (other than the Purchaser or any of its Affiliates) regarding any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an

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Acquisition Proposal, it being acknowledged and agreed that it may communicate with any Person for purposes of advising such Person of the restrictions in this Agreement; or

(c) accept or enter into or publicly propose to enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal.

Notwithstanding any other provision of this Agreement, nothing shall prevent or otherwise restrict the Company from completing any acquisition or disposition of assets provided that such transaction shall not involve any assets or securities of the Company and that copies of any material agreements related to such transaction are made available to the Purchaser.

11.02 The Vendors and the Company shall not, directly or indirectly, through any Representative or otherwise, and shall not permit such Person to, 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 publicly announced or otherwise publicly disclosed Acquisition Proposal in respect of the Company (it being understood that taking no position or a neutral position with respect to a publicly announced or otherwise publicly disclosed Acquisition Proposal for a period of no more than five (5) Business Days following the announcement or disclosure of such Acquisition Proposal will not be considered to be in violation of this Article XI provided the Company’s Board has rejected such Acquisition Proposal and affirmed the Company’s Board Recommendation before the end of such five (5) Business Day period).
11.03 The Vendors and the Company shall, and the Company shall cause its Subsidiaries and its Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiations, or other activities commenced prior to the date of this Agreement with any Person (other than the Purchaser or its Affiliates) with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal, and in connection with such termination shall no longer provide access to any data room or provide any new disclosure of information, or access to properties, facilities, books and records of the Company or any of its Subsidiaries outside the ordinary course of business.
11.04 If, after the date of this Agreement, any of the Vendors, the Company or any of its Subsidiaries or 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 Acquisition Proposal, or any request for copies of, access to, or disclosure of, confidential information that is made, or that may reasonably be perceived to be made, in connection with an Acquisition Proposal, including but not limited to information, access, or disclosure relating to the properties, facilities, books or records of it or any of its Subsidiaries, it shall immediately notify the Purchaser, at first orally, and then promptly and in any event within 48 hours in writing, of such Acquisition Proposal, inquiry, proposal, offer or request, including a description of its material terms and conditions and the identity of all Persons making the Acquisition Proposal, inquiry, proposal, offer or request, and shall provide the Purchaser with copies of all documents, correspondence or other material received in respect of, from or on behalf of any such Person. The Vendors and the Company shall keep the Purchaser informed on a current basis of the status of developments and negotiations with respect to such Acquisition Proposal, inquiry, proposal, offer or request, including any changes, modifications or other amendments to any such Acquisition Proposal, inquiry, proposal, offer or request.

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ARTICLE XII CONDITIONS PRECEDENT

12.01 The transactions contemplated herein are subject to the following conditions to be fulfilled or performed on or prior to the Effective Date, which conditions are for the mutual respective benefit of the Purchaser and the Company and may be waived, in whole or in part, by the Purchaser and the Company upon mutual written consent:
(a) the Embark Shareholder Approval shall have been obtained;
(b) the Amalgamation shall be approved by the sole shareholder of Subco; and
(c) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement (other than any order or decree initiated or obtained by any Party, directly or indirectly).
12.02 The transactions contemplated herein are subject to the following conditions to be fulfilled or performed on or prior to the Effective Date, which conditions are for the exclusive benefit of the Purchaser and may be waived, in whole or in part, by the Purchaser, in its sole discretion:
(a) the representations and warranties of the Company contained in this Agreement or in any Ancillary Agreement shall have been 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, the accuracy of which shall be determined as of such date), in each case in all material respects (and, for this purpose, any reference to “Material”, “Material Adverse Effect” or any other concept of materiality in such representations and warranties shall be ignored), with the same force and effect as if such representations and warranties had been made on and as of such Effective Date, as certified by a senior executive officer of the Company on the Effective Date;
(b) the representations and warranties of the Vendors contained in this Agreement or in any Ancillary Agreement shall have been 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, the accuracy of which shall be determined as of such date), in each case in all material respects, with the same force and effect as if such representations and warranties had been made on and as of such Effective Date, as certified by each Vendor on the Effective Date;
(c) the Company shall have performed, fulfilled or complied with, in all material respects, all of its obligations, covenants and agreements contained in this Agreement and in any Ancillary Agreement to be fulfilled or complied with by them at or prior to the Effective Date, as certified by a senior executive officer of the Company on the Effective Date;
(d) all approvals, consents and authorizations of third parties in respect of the transactions contemplated herein required to be obtained by the Company and/or its Subsidiaries, including without limitation approvals of Governmental Authorities (other than the

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Exchange), shall have been obtained on terms acceptable to the Purchaser acting reasonably;

(e) the Company’s 2020 Financial Statements shall have been delivered to the Purchaser on or before October 6, 2021, and shall be substantially in the form as set out in the Embark Disclosure Letter;
(f) the Embark Common Shares held by the dissenting shareholders of the Company shall not constitute more than five percent (5%) of all issued and outstanding Embark Common Shares;
(g) the Company shall deliver or cause to be delivered to the Purchaser the Embark Closing Documents as set forth in section 13.02 in a form satisfactory to the Purchaser, acting reasonably;
(h) between the date of this Agreement and the Effective Date, there will have been no Material Adverse Effect for the Company or its Subsidiaries;
(i) all proceedings to be taken in connection with the transactions contemplated in this Agreement and any Ancillary Agreement shall be satisfactory in form and substance to the Purchaser, acting reasonably, and the Purchaser shall have received copies of all instruments and other evidence as it may reasonably request in order to establish the consummation or completion of such transactions and the taking of all necessary proceedings in connection therewith;
(j) the issuance of Payment Shares to U.S. Persons (as defined in Regulation S) or persons in the United States pursuant to the Amalgamation shall be exempt from registration requirements under the 1933 Act under Section 4(a)(2) of or Rule 903 of Regulation S under the 1933 Act, and the Company shall have obtained and delivered to the Purchaser, on or before the Closing Date, a fully completed and executed Certificate of U.S. Shareholder in a form reasonably satisfactory to the Purchaser from each Embark Shareholder that is a U.S. Person entitled to receive Payment Shares pursuant to the Amalgamation in order to, among other things, evidence the availability of such exemptions;
(k) the transactions and formal documentation contemplated by the Woodstock MOA and the Woodstock Guarantee shall have been completed on terms and conditions satisfactory to BevCanna in its sole discretion;
(l) the terms and conditions of the Embark Convertible Debentures shall have been amended to provide that all principal and accrued and unpaid interest shall be automatically converted into Embark Shares immediately prior to the Effective Time;
(m) no action or proceeding shall be pending or threatened by any Person (other than by the Purchaser or Subco, directly or indirectly) in any jurisdiction, to enjoin, restrict or prohibit any of the transactions contemplated by this Agreement or the right of the Company to conduct its business after the Effective Time on substantially the same basis as operated immediately prior to the date hereof or the Effective Time, as applicable.

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12.03 The transactions contemplated herein are subject to the following conditions to be fulfilled or performed on or prior to the Effective Date, which conditions are for the exclusive benefit of the Company and may be waived, in whole or in part, by the Company in its sole discretion:
(a) the representations and warranties of the Purchaser and Subco contained in this Agreement or in any Ancillary Agreement shall have been 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, the accuracy of which shall be determined as of such date), in each case in all material respects (and, for this purpose, any reference to “Material”, “Material Adverse Effect” or any other concept of materiality in such representations and warranties shall be ignored), with the same force and effect as if such representations and warranties had been made on and as of such Effective Date as certified by a senior executive officer of the Purchaser and a senior executive officer of Subco on the Effective Date;
(b) the Purchaser and Subco shall have performed, fulfilled or complied with, in all material respects, all of their obligations, covenants and agreements contained in this Agreement and in any Ancillary Agreement to be fulfilled or complied with by the Purchaser and Subco at or prior to the Effective Date; as certified by a senior executive officer of the Purchaser and a senior executive officer of Subco on the Effective Date;
(c) all approvals, consents and authorizations of third parties in respect of the transactions contemplated herein required to be obtained by the Purchaser and/or Subco, shall have been obtained on terms acceptable to the Company acting reasonably;
(d) the Purchaser and Subco shall deliver or cause to be delivered to the Company, the Purchaser and Subco Closing Documents as set forth in section 13.03 in a form satisfactory to the Company acting reasonably;
(e) between the date of this Agreement and the Effective Date, there will have been no Material Adverse Effect for the Purchaser or its Subsidiaries;
(f) all proceedings to be taken in connection with the transactions contemplated in this Agreement and any Ancillary Agreement shall be satisfactory in form and substance to the Company, acting reasonably, and the Company shall have received copies of all instruments and other evidence as it may reasonably request in order to establish the consummation or completion of such transactions and the taking of all necessary proceedings in connection therewith; and
(g) no action or proceeding shall be pending or threatened by any Person (other than by the Company, directly or indirectly) in any jurisdiction, to enjoin, restrict or prohibit any of the transactions contemplated by this Agreement or the right of the Purchaser and Subco to conduct its business after the Effective Time on substantially the same basis as operated immediately prior to the date hereof.

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ARTICLE XIII CLOSING

13.01 The Closing shall be completed electronically at the Effective Time on the Effective Date or at such other time and/or place as may be mutually agreed upon by the Parties, but in any event not later than the Outside Date.
13.02 On the day of Closing, the Company shall deliver to the Purchaser the following documents:
(a) a certified copy of the resolutions of the directors approving and authorizing the Acquisition and of the Embark Shareholder Approval;
(b) a certificate of status for the Company and its of its Subsidiaries;
(c) a certificate of discontinuance under the CBCA;
(d) the officer’s certificate contemplated in section 12.02;
(e) an officer’s certificate with respect to the constating documents and by-laws of the Company;
(f) the Closing Escrow Agreement, duly executed by the Shareholder Representative;
(g) the Indemnity Escrow Agreement, duly executed by the Vendors;
(h) executed copies of the Key Employee Agreements;
(i) executed copies of the Non-Competition Agreements with each of the Key Employees;
(j) resignations and mutual releases duly signed and delivered by each of the directors and officers of the Company and each of its Subsidiaries, in form and substance satisfactory to the Purchaser, acting reasonably;
(k) duly executed copies of the U.S. Representation Letter attached hereto as Schedule “E”, including accredited investor certifications if applicable, for each Embark Shareholder that is resident in the United States or otherwise a U.S. Person, or consents to the Amalgamation from within the United States; and
(l) such other documents and instruments as may be required by the Purchaser to comply with the Exchange policies and listing requirements.
13.03 On the day of Closing, the Purchaser and Subco shall deliver to the Company the following documents:
(a) the Closing Escrow Agreement, duly executed by the Closing Escrow Agent and the Purchaser;
(b) the Indemnity Escrow Agreement, duly executed by the Indemnity Escrow Agent and the Purchaser;
(c) duly executed certificates in form and substance satisfactory to the Company, acting reasonably, or other evidence of ownership satisfactory to the Company, acting reasonably (including uncertificated records registered in the name of CDS Clearing and Depository Services Inc. on the book-based securities transfer system administered by it,

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registered as directed by the Company, provided that, U.S. Persons as identified by the Company must be issued physical certificates or DRS Advice), in each case bearing such legends as may be required by the Company, the Exchange or any other Governmental Authority and in the respective names of each holder of record) of the Payment Shares, delivered to the Closing Escrow Agent or the Indemnity Escrow Agent, as applicable, to be held in accordance with the terms of the applicable Escrow Agreement, which shall bear a legend restricting the holders thereof from trading such Payment Shares except in accordance with the terms and conditions of the Closing Escrow Agreement; and

(d) a certified copy of the resolutions of the directors of the Purchaser approving and authorizing the transactions herein contemplated;
(e) a certified copy of the resolutions of the directors and shareholders, as applicable, of Subco approving and authorizing, as applicable, (i) any necessary filings as contemplated herein; and (ii) the transactions and issuances, creation, reservation and delivery of shares and other securities contemplated herein;
(f) a certificate of status for each of the Purchaser and Subco;
(g) an officer’s certificate with respect to the articles of the Purchaser and Subco;
(h) the officer’s certificate contemplated in section 12.03;
(i)
executed copies of the Key Employee Agreements;
(j) evidence that the Purchaser is a reporting issuer in each of the Provinces of British Columbia and Ontario and that the Purchaser is not included on a list of defaulting reporting issuers maintained by any of the securities commissions or similar regulatory authority in such province; and
(k) such other documents and instruments as may be required by the Exchange or to otherwise comply with the Exchange policies and listing requirements.

ARTICLE XIV TERM AND TERMINATION

14.01 This Agreement shall be effective from the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms.
14.02 This Agreement may be terminated prior to the Effective Time (notwithstanding any approval of the Embark Resolution) by:
(a) the mutual written agreement of the Parties.
(b) either the Purchaser or of the Company if the Effective Time has not occurred by Outside Date, provided that a Party may not terminate this Agreement pursuant to this 14.02(b) if the failure of the Effective Time to so occur has been caused by, or is a result of, a breach by such Party of any of its representations or warranties or the failure of such Party to perform any of its covenants or agreements under this Agreement.
(c) the Purchaser or Subco if:

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(i) a breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Company or the Vendors under this Agreement occurs that would cause any condition in sections 12.01 or 12.02 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, provided that the Purchaser or Subco is not then in breach of this Agreement so as to cause any condition in section 12.03 not to be satisfied; or
(ii) any condition set forth in sections 12.01 and 12.02 is not satisfied, and such condition is incapable of being satisfied at the completion of the Acquisition;

If the Purchaser and/or Subco waive compliance with any of the conditions, obligations or covenants contained in this Agreement, the waiver will be without prejudice to any of their rights of termination in the event of non-fulfilment, non-observance or nonperformance by the Company or the Vendors of any other condition, obligation, or covenant in whole or in part.

(d) the Company or any of the Vendors if:
(i) a breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Purchaser or Subco under this Agreement occurs that would cause any condition in 12.01 or 12.03 not to be satisfied, and such breach or failure is incapable of being cured on or prior to the Outside Date, provided that the Company and each of the Vendors is not then in breach of this Agreement so as to cause any condition in 12.02 not to be satisfied; or
(ii) any condition set forth in sections 12.01 or 12.03 is not satisfied, and such condition is incapable of being satisfied at the completion of the Acquisition.

If the Company and the Vendors waive compliance with any of the conditions, obligations or covenants contained in this Agreement, the waiver will be without prejudice to any of their rights of termination in the event of non-fulfilment, non-observance or non-performance by the Purchaser and/or Subco of any other condition, obligation or covenant in whole or in part.

14.03 If this Agreement is terminated pursuant to section 14.02, this Agreement shall become void and of no further force or effect without liability of any Party (or any shareholder, director, officer, employee, agent, consultant or representative of such Party) to any other Party to this Agreement, except that this section 14.03, section 14.04 and Article XV shall survive in accordance with their terms.
14.04 Each Party’s right of termination under this Article XIV is in addition to any other rights it may have under this Agreement or otherwise, and the exercise of a right of termination will not be an election of remedies. Nothing in this Article XIV shall limit or affect any other rights or causes of action the Purchaser, the Vendors the Company or Subco may have with respect to the representations, warranties, covenants and indemnities in its favour contained in this Agreement.

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ARTICLE XV INDEMNIFICATION

15.01 Indemnification by the Vendors . Subject to the terms and conditions of this Article XV, each Vendor will, severally as to itself only and not jointly with any other Vendor, indemnify and hold harmless the Purchaser Indemnified Parties from and against any and all Damages incurred or suffered by the Purchaser Indemnified Parties (whether or not involving a Third Party Claim) resulting from, in connection with or arising out of:
(a) any failure of the Company to perform or fulfill any of its covenants under this Agreement;
(b) any breach, default or violation of any representation or warranty given by such Vendor in Article VI; or
(c) any breach, default or violation of any representation or warranty given by the Company in Article V.
15.02 Indemnification by the Purchaser . The Purchaser shall indemnify and hold harmless the Company Indemnified Parties from and against any and all Damages incurred or suffered by the Company Indemnified Parties (whether or not involving a Third Party Claim) resulting from, in connection with or arising out of:
(a) any failure of the Purchaser or Subco to perform or fulfill any of its covenants under this Agreement; or
(b) any breach, default or violation of any representation or warranty given by the Purchaser or Subco.
15.03 Deductibles for Breaches of Representations and Warranties – Vendors. The Purchaser Indemnified Parties will not be entitled to indemnification from the Vendors pursuant to Section 15.01(b) with respect to breaches or inaccuracies of the representations and warranties of the Company and the Vendors contained in this Agreement unless and until the amount of Damages incurred or suffered by the Purchaser Indemnified Parties in respect of all such matters (determined in the aggregate for all such breaches and inaccuracies and not on the basis of any single breach or inaccuracy) exceeds $100,000, whereupon the Vendors will be liable for such Damages from the first dollar.
15.04 Deductibles for Breaches of Representations and Warranties – Purchaser. The Company Indemnified Parties will not be entitled to indemnification from the Purchaser pursuant to Section 15.02(b) with respect to breaches or inaccuracies of the representations and warranties of the Purchaser contained in this Agreement unless and until the amount of Damages incurred or suffered by the Company Indemnified Parties in respect of all such matters (determined in the aggregate for all such breaches and inaccuracies and not on the basis of any single breach or inaccuracy) exceeds $100,000, whereupon the Purchaser will be liable for such Damages from the first dollar.

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15.05 Caps for Breaches of Representations and Warranties.

(a) The maximum aggregate liability of each Vendor under this Agreement will not exceed an amount equal to that particular Vendor’s Proportionate Share of the maximum liability set forth in 15.05(b);
(b) The maximum aggregate collective liability of the Vendors under this Agreement will be 75% of the Payment Shares issued to the Vendors pursuant to the Amalgamation.
(c) The maximum aggregate liability of the Purchaser under this Agreement will be $1,000,000.

15.06 Satisfaction/Payment of Indemnity.

(a) In the event that a Purchaser Indemnified Party is entitled to indemnification pursuant to Section 15.01 (the “ Purchaser Recoverable Amount ”), the Purchaser Recoverable Amount shall, subject to Section 15.05, be satisfied by the transfer, for cancellation or otherwise, of title to such number of Escrowed Indemnity Shares as is required to satisfy the Purchaser Recoverable Amount, where the value attributable to each such Escrowed Indemnity Share shall be equal to the 10-day volume weighted average price of the Purchaser Common Shares listed on the primary stock exchange on which the Purchaser Common Shares are listed on the most recent trading day ended prior to the determination of such Purchaser Recoverable Amount. If requested by Vendor on reasonable notice, the Purchaser shall use reasonable commercial efforts to facilitate settlement of a Purchaser Recoverable Amount by a cash payment equivalent to the deemed value of the Escrowed Indemnity Shares that would otherwise be transferred for cancellation in which case such shares shall be released to the Purchaser Indemnified Party.
(b) A claim shall be deemed to be “determined” for the purposes of this Section 15.06, (i) in the case of any Third Party Claim which the Indemnifying Party(ies) elects to defend, by any settlement agreement between such Indemnifying Party(ies) and the applicable Indemnified Party(ies) asserting such Third Party Claim, or otherwise by order of a court, tribunal or arbitrator of competent jurisdiction, or (ii) in the case of all other claims for indemnification, by written acknowledgement of liability by the Indemnifying Party, by settlement agreement between the Indemnifying Party and the applicable Indemnified Party(ies), or otherwise by order of a court, tribunal or arbitrator of competent jurisdiction.

15.07 Third Party Claims Procedure.

(a) If any Indemnified Party receives written notice of the assertion of any claim or the commencement of any Third Party Claim, the Indemnified Party will give the Indemnifying Party prompt notice (a “ Claim Notice ”) describing in reasonable detail the Third Party Claim and, if ascertainable, the amount in dispute under the Third Party Claim; provided, however, that the failure of the Indemnified Party to give a Claim Notice will not relieve the Indemnifying Party of its obligations to provide

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indemnification hereunder except to the extent (and only to the extent) that the Indemnifying Party will have been materially prejudiced by such failure.

(b) Subject to the limitations set forth in this Section 15.07(b), in the event of a Third Party Claim, the Indemnifying Party will have the right to elect to conduct and control the defense, compromise or settlement of such Third Party Claim, with counsel of its choice reasonably acceptable to the Indemnified Party and at the Indemnifying Party’s sole cost and expense, if the Indemnifying Party: (i) has acknowledged and agreed in writing that, if the same is adversely determined, the Indemnifying Party will provide indemnification to the Indemnified Party in respect thereof; and (ii) if requested by the Indemnified Party, has provided evidence reasonably satisfactory to the Indemnified Party of the Indemnifying Party’s financial ability to pay any Damages resulting from the Third Party Claim; provided, however, that the Indemnified Party may participate therein through separate counsel chosen by it and at its sole cost and expense. Notwithstanding the foregoing, if (A) the Indemnifying Party has not given notice of its election to conduct and control the defense of the Third Party Claim within thirty (30) days after the Indemnified Party has given a Claim Notice thereof, (B) the Indemnifying Party has failed to conduct such defense diligently and in good faith, (C) the Indemnified Party reasonably determines, based on the advice of its counsel, that use of counsel selected by the Indemnifying Party to represent the Indemnified Party would present such counsel with a conflict of interest, (D) the Indemnifying Party is also a party to the Third Party Claim and the Indemnified Party determines in good faith that joint representation would be inappropriate; (E) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its financial capacity to defend the Third Party Claim and provide indemnification with respect to the Third Party Claim; (F) in the reasonable judgment of the Indemnified Party, the estimated amount of likely recoverable Damages in connection with such claim is greater than the unused portion of the maximum liability the Indemnifying Party is liable for under this Agreement; (G) in the reasonable judgment of the Indemnified Party, such claim involves or is in respect of any criminal law matter or Tax Contest, or otherwise gives rise to material reputational risks to the Indemnified Party; or (H) the Third Party Claim seeks relief against the Indemnified Party other than monetary damages or the Indemnified Party determines in good faith that there is a reasonable probability that the Third Party Claim may adversely affect it or its Affiliates and the Indemnified Party has notified the Indemnifying Party that it will exercise its exclusive right to defend, compromise or settle the Third Party Claim, then, in each such case, the Indemnified Party will have the right to control the defense, compromise or settlement of the Third Party Claim with counsel of its choice at the Indemnifying Party’s sole cost and expense, not to exceed one law firm, provided such costs and expenses are reasonable.
(c) In connection with any Third Party Claim, from and after delivery of a Claim Notice, the Indemnifying Party and the Indemnified Party will, and will cause their respective Affiliates and associates to, use commercially reasonable efforts to cooperate in connection with the defense or prosecution of such Third Party Claim, including furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying Party or the Indemnified Party in connection therewith. In addition,

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the party controlling the defense of any Third Party Claim will keep the non-controlling party advised of the status thereof and will consider in good faith any recommendations by the non-controlling party with respect thereto.

(d) Except as set forth below, no Third Party Claim may be settled or compromised: (i) by the Indemnified Party without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed); or (ii) by the Indemnifying Party without the prior written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing: (A) the Indemnified Party will have the right to pay, settle or compromise any Third Party Claim, provided that in such event the Indemnified Party will waive all rights against the Indemnifying Party to indemnification under this Article 9 with respect to such Third Party Claim unless the Indemnified Party has sought the consent of the Indemnifying Party to such payment, settlement or compromise and such consent has been unreasonably withheld, conditioned or delayed; and (B) the Indemnifying Party will have the right to consent to the entry of a judgment or enter into a settlement with respect to any Third Party Claim without the prior written consent of the Indemnified Party if the judgment or settlement (1) involves only the payment of money damages (all of which will be paid in full by the Indemnifying Party concurrently with the effectiveness thereof), (2) will not encumber any of the assets of the Indemnified Party and will not contain any restriction or condition that would apply to or adversely affect the Indemnified Party or the conduct of its business, and (3) includes, as a condition to any settlement or other resolution, a complete and irrevocable release of the Indemnified Party from all liability in respect of such Third Party Claim and includes no admission of wrong doing.
15.08 Direct Claims Procedure. In the event the Indemnified Party should have a claim for indemnification hereunder that does not involve a Third Party Claim, the Indemnified Party will, as promptly as practicable, deliver to the Indemnifying Party a written notice that contains: (i) a description and the amount (the “ Claimed Amount ”) of any Damages incurred or suffered by the Indemnified Party; (ii) a statement that the Indemnified Party is entitled to indemnification under this Article XV and a reasonable explanation of the basis therefore; and (iii) a demand for payment by the Indemnifying Party. Within thirty (30) days following the delivery of such written notice, the Indemnifying Party will deliver to the Indemnified Party a written response in which the Indemnifying Party will: (A) agree that the Indemnified Party is entitled to receive all of the Claimed Amount (in which case such response will be accompanied by a payment by the Indemnifying Party of the Claimed Amount); (B) agree that the Indemnified Party is entitled to receive part, but not all, of the Claimed Amount (the “ Agreed Amount ”) (in which case such response will be accompanied by payment by the Indemnifying Party of the Agreed Amount); or (C) contest that the Indemnified Party is entitled to receive any of the Claimed Amount. If the Indemnifying Party contests the payment of all or part of the Claimed Amount, the Indemnifying Party and the Indemnified Party will use good faith efforts to resolve such dispute as promptly as practicable. If such dispute is not resolved within thirty (30) days following the delivery by the Indemnifying Party of such response, the Indemnified Party and the Indemnifying Party will each have the right to commence a proceeding in a court having competent jurisdiction.
15.09 Insurance and Other Recoveries. For purposes of determining the amount of Damages subject to an indemnification claim made pursuant to this Article XV, the amount of such Damages shall be

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reduced by the amount of any insurance proceeds or other recoveries from third parties (net of any deductible or other reasonable costs or expenses of recovery, including attorney costs and any increases in premiums or retro-premiums) actually received by the applicable Indemnified Party in respect of such Damages. If an indemnification payment is received by any Indemnified Party, and such Indemnified Party later receives insurance proceeds or other third party recoveries described in the previous sentence in respect of the related Damages that were not previously credited against such indemnification payment when made, such Indemnified Party shall promptly pay to the Indemnifying Party, a sum equal to the lesser of: (i) the actual amount of such insurance proceeds or third party recoveries actually received (net of any deductible or other reasonable costs or expenses of recovery); or (ii) the actual amount of the indemnification payment previously paid to the Indemnified Party by or on behalf of the Indemnifying Party with respect to such Damages. Each Indemnified Party shall, in good faith, use its commercially reasonable efforts to collect amounts available under insurance coverages, relating to any Damages for which it is seeking indemnification.

15.10 Fraud and Other Remedies. Notwithstanding any other provision of this Agreement, and except as hereinafter set forth, the Company, the Vendors and Purchaser acknowledge that in the event that the Closing shall take place, the rights to indemnification under this Article XV are the sole and exclusive remedy through which the Embark Shareholders, the Purchaser, or an Indemnified Party, may make any claim for Damages suffered or incurred in connection with any breach of this Agreement transactions contemplated herein, but excluding any Fraud Claim.
15.11 Requirement to Set-Off. The Purchaser covenants and agrees that all or any portion of any amounts that any Vendor is required to pay pursuant to any claim for indemnification made by a Purchaser Indemnified Party under this Article XV will first be satisfied by cancellation of some or all of the Escrowed Indemnity Shares registered in the name of such Vendor.
15.12 Treatment of Indemnification Payments. Any payment made by a Vendor as an Indemnifying Party pursuant to this Article XV will constitute a decrease of the value of consideration payable by the Purchaser and any payment made by the Purchaser as an Indemnifying Party pursuant to this Article XV will constitute an increase of the value of consideration payable by the Purchaser.

ARTICLE XVI GENERAL

16.01 Counterparts. This Agreement may be executed in several counterparts (by original or electronic signature), each of which when so executed shall be deemed to be an original and each of such counterparts, if executed by each of the Parties, shall constitute a valid and enforceable agreement among the Parties.
16.02 Confidentiality . All information provided to or received by the Parties shall be treated as confidential (“ Confidential Information ”). Subject to the provisions of this section 16.02, no Confidential Information shall be published, disclosed or used, directly or indirectly, in any manner whatsoever, by any Party without the prior written consent of the others, not be unreasonably withheld, delayed or conditioned. The consent required by this section shall not apply to a disclosure to:

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(a) comply with any Applicable Laws;
(b) a director, officer or employee of a Party;
(c) an Affiliate of a Party;
(d) legal counsel, auditors or other professional advisors of a Party;
(e) a consultant, contractor or subcontractor of a Party that has a bona fide need to be informed; or
(f) a bank or other financial institution from which the disclosing party is seeking equity or debt financing,

provided, however , that the third party or parties to whom Confidential Information is disclosed as permitted by this section 16.02 agree to maintain in confidence all such Confidential Information so disclosed to them, and provided further that, the obligations of confidence and prohibitions against disclosure, publication or use of Confidential Information in this section 16.02 shall not apply to information that the disclosing party can show by reasonable documentary evidence or otherwise:

(x) as of the date of this Agreement, was in the public domain other than as a result of a breach of any agreement with the disclosing Party or any other third party subject to a contractual obligation of non-disclosure;
(y) after the date of this Agreement, was published or otherwise became part of the public domain through no fault of the receiving Party or an Affiliate thereof (but only after, and only to the extent that, it is published or otherwise becomes part of the public domain); or
(z) was information that the disclosing party or its Affiliates were required to disclose pursuant to the order of any Governmental Authority or judicial authority.
16.03 Severability. In the event that any provision or part of this Agreement is determined by any court or other judicial or administrative body to be illegal, null, void, invalid or unenforceable, that provision shall be severed to the extent that it is so declared and the other provisions of this Agreement shall continue in full force and effect.
16.04 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein.
16.05 Successors and Assigns. This Agreement shall accrue to the benefit of and be binding upon each of the parties hereto and their respective heirs, executors, administrators and assigns, provided that this Agreement shall not be assigned by any one of the parties without the prior written consent of each of the other parties.
16.06 Costs and Expenses. Each of the Parties shall be responsible for its own costs and charges incurred with respect to the consummation of the transactions contemplated hereby including, without limitation, all costs and charges incurred prior to the date hereof and all legal and accounting fees and disbursements relating to preparing this Agreement, or otherwise relating to the transactions contemplated hereby. For certainty, the Company shall be responsible for its

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own printing and mailing costs associated with the holding of the Meeting and for the purposes of calculating Closing Date Working Capital current liabilities shall exclude any such costs prior to the Closing Date.

Notwithstanding anything to the contrary herein, in the event that the Acquisition is not completed either as result of:

(a) the Company’s (i) failure to satisfy the closing conditions contemplated in Section 12.01 (solely as result of the Company) or Section 12.02; or (ii) breach of its obligations under this Agreement, the Company shall reimburse the Purchaser for all of the Purchaser’s costs reasonably incurred in connection with the Acquisition (including the Purchaser’s legal costs and expenses); and
(b) the Purchaser’s (i) failure to satisfy the closing conditions contemplated in Section 12.01 (solely as result of the Purchaser) or Section 12.03; or (ii) breach of its obligations under this Agreement, the Purchaser shall reimburse the Company for all of the Company’s costs reasonably incurred in connection with the Acquisition (including the Company’s legal costs and expenses).

16.07 Interpretation.

(a) Schedules. Schedules and other documents attached or referred to in this Agreement are an integral part of this Agreement.
(b) Sections and Headings. The division of this Agreement into Articles, sections and subsections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation hereof.
16.08 Further Assurances. Each of the Parties hereto will from time to time after the Effective Date at the other’s request and expense and without further consideration, execute and deliver such other instruments of transfer, conveyance and assignment and take such further action as the other may reasonably require to give to any matter provided for herein.
16.09 Entire Agreement. This Agreement and the schedules referred to herein constitute the entire agreement among the Parties hereto and supersede all prior agreements, representations, warranties, statements, promises, information, arrangements and understandings, whether oral or written, express or implied, with respect to the subject matter hereof. None of the Parties hereto shall be bound or charged with any oral or written agreements, representations, warranties, statements, promises, information, arrangements or understandings not specifically set forth in this Agreement or in the schedules, documents and instruments to be delivered on the Effective Date pursuant to this Agreement. The Parties hereto further acknowledge and agree that, in entering into this Agreement and in delivering the schedules, documents and instruments to be delivered on the Effective Date, they have not in any way relied, and will not in any way rely, upon any oral or written agreements, representations, warranties, statements, promises, information, arrangements or understandings, express or implied, not specifically set forth in this Agreement or in such schedules, documents or instruments.

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16.10 Notices. Any notice required or permitted to be given hereunder shall be in writing and shall be effectively given if (a) delivered personally; (b) sent prepaid courier service or mail; or (c) sent by e-mail or other similar means of electronic communication (confirmed on the same or following day by prepaid mail) addressed as follows:

in the case of notice to the Company and the Vendors:

77 King Street, Suite 400 Toronto, Ontario M5K 0A1

Attention: Bruce Dawson-Scully, CEO E-mail: [email protected]

with copies to:

Dentons Canada LLP 77 King Street, Suite 400 Toronto, Ontario M5K 0A1

Attention: Eric Foster Email: [email protected]

in the case of notice to the Purchaser or Subco:

Suite 200 – 1672 West 2nd Avenue

Vancouver, British Columbia V6J 1H4 Attention: John Campbell, CFO Email: [email protected]

with copies to:

Clark Wilson LLP 900 – 885 West Georgia Street Vancouver, British Columbia V6C 3H1

Attention: Cam McTavish and Craig Hoskins Email: [email protected] and [email protected]

Any notice, designation, communication, request, demand or other document given or sent or delivered as aforesaid shall:

(a) if delivered as aforesaid, be deemed to have been given, sent, delivered and received on the date of delivery, unless sent after business hours or on a day that is not a Business Day, in which case receipt shall be deemed to be the immediately following Business Day; and

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(b) if sent by mail as aforesaid, be deemed to have been given, sent, delivered and received on the fourth Business Day following the date of mailing, unless at any time between the date of mailing and the fourth Business Day thereafter there is a discontinuance or interruption of regular postal service, whether due to strike or lockout or work slowdown, affecting postal service at the point of dispatch or delivery or any intermediate point, in which case the such notice shall be deemed to have been given, sent, delivered and received in the ordinary course of the mail, allowing for such discontinuance or interruption of regular postal service.
16.11 Waiver. Any Party hereto which is entitled to the benefits of this Agreement may, and has the right to, waive any term or condition hereof at any time on or prior to the Effective Date, provided however that such waiver shall be evidenced by written instrument duly executed on behalf of such Party.
16.12 Amendments. No modification or amendment to this Agreement may be made unless agreed to by the Parties hereto in writing.
16.13 Currency. Unless otherwise indicated, all dollar amounts referred to in this Agreement are in the lawful money of Canada.
16.14 Number and Gender. In this Agreement, unless there is something in the subject matter or context inconsistent therewith:
(a) words in the singular number include the plural and such words shall be construed as if the plural had been used;
(b) words in the plural include the singular and such words shall be construed as if the singular had been used; and
(c) words importing the use of any gender shall include all genders where the context or the party referred to so requires, and the rest of the sentence shall be construed as if the necessary grammatical and terminological changes had been made.

16.15 Time of Essence. Time shall be of the essence hereof.

[ Signature Page Follows ]

CW17369373.1

IN WITNESS WHEREOF this agreement has been executed by the parties hereto as of the date first above written.

EMBARK HEALTH INC.

Per: / Bruce Dawson-Scully / Name: Bruce Dawson-Scully Title: Chief Executive Officer

BEVCANNA ENTERPRISES INC.

Per: / Marcello Leone / Name: Marcello Leone Title: Chief Executive Officer Per: / John Campbell / Name: John Campbell Title: Chief Financial Officer

1323977 B.C. LTD.

Per: / Marcello Leone / Name: Marcello Leone Title: Director Per: / John Campbell / Name: John Campbell Title: Chief Financial Officer

- / Bruce Dawson Scully / Witness (please print name under BRUCE DAWSON-SCULLY signature)

/ Marcus Richardson / Witness (please print name under MARCUS RICHARDSON signature)

/ Michael Curtis / Witness (please print name under MICHAEL CURTIS signature)

CW17370820.1

Schedule "A"

EMBARK RESOLUTION

BE IT RESOLVED as a special resolution THAT:

Embark Health Inc. (the “ Corporation ”) is authorized to apply to the Registrar of Corporations appointed under the Business Corporations Act (British Columbia) (the “ BCBCA ”) to effect the continuation of the Corporation to the BCBCA and such continuation is hereby approved;
The amalgamation involving BevCanna Enterprises Inc., the Corporation and 1323977 B.C. Ltd. (the “ Amalgamation ”) pursuant to the terms and conditions of the acquisition agreement dated September 19, 2021 (the “ Acquisition Agreement ”), be and the same is hereby approved;
The Acquisition Agreement, substantially in the form provided to the shareholders, including all schedules thereto, is hereby ratified, confirmed and approved for adoption and any director or officer of the Corporation is hereby authorized to hereafter amend or revise the Acquisition Agreement without any further consent of the shareholders;
Any director or officer of the Corporation be and is hereby authorized and empowered, for and on behalf of the Corporation, to execute and deliver, or cause to be delivered and filed, a continuation application, amalgamation application and such other documents and instruments, and to do or cause to be done, such other actions as such director or officer may determine to be necessary or desirable in order to implement these special resolutions and the matters authorized herein, such determination to be conclusively evidenced by the execution and delivery of any such documents or instruments or taking of such actions; and
Notwithstanding that these special resolutions have been duly approved by the shareholders of the Corporation, the directors of the Corporation, in their sole discretion and without the requirement to obtain any further approval from the shareholders of the Corporation, are hereby authorized and empowered to revoke these special resolutions at any time before they are acted upon without further approval from the shareholders.

CW17369373.1

KEY EMPLOYEES

Schedule “B”

Bruce Dawson-Scully
David Curtis
Marcus Richardson
Tamara Gilpin
Andrew Wong
Michael West
Pushp Singh
Curtis Leifso
Craig Flaman

CW17369373.1

Schedule “C”

FORMS OF CLOSING ESCROW AGREEMENT AND INDEMNITY ESCROW AGREEMENT

CW17369373.1

CLOSING ESCROW AGREEMENT

THIS CLOSING ESCROW AGREEMENT (this “ Agreement ”) is made effective as of  , 2021.

AMONG :

BEVCANNA ENTERPRISES INC. , a company incorporated pursuant to the laws of British Columbia and having an address at PO Box 33957, Vancouver, BC V6J 4L7

(the “ Company ”)

AND :

OLYMPIA TRUST COMPANY, having an address at 

(the “ Escrow Agent ”)

AND :

THE UNDERSIGNED SHAREHOLDER REPRESENTATIVE

(the “ Shareholder ”)

WHEREAS:

A. The Company, Embark Health Inc. (“ Target ”), 1323977 B.C. Ltd. (“ Subco ”), a wholly-owned subsidiary of the Company, Bruce Dawson-Scully and the Shareholders have entered into a acquisition agreement (the “ Acquisition Agreement ”) dated September 19, 2021 pursuant to which the Target and Subco will amalgamate and will continue as a wholly-owned subsidiary of the Company (the “ Transaction ”) and, in connection therewith an as contemplated in the Acquisition Agreement, the Company will issue shares of the Company to the shareholders of as herein provided;

B. The Shareholder is, or will be, the holder of common shares in the capital of the Company, in the amount set out in the signature page to this Agreement (each, a “ Share ” and collectively, the “ Shares ”), which the Shareholder acquired, or will acquire in connection with, or hold as a result of, the Transaction; and

C. Pursuant to the terms of the Acquisition Agreement, the Shareholder has agreed to deposit their respective Shares with the Escrow Agent, to be released only in accordance with the terms and conditions of this Agreement.

NOW THEREFORE , in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the Company, the Escrow Agent and the Shareholder (each, a “ Party ”, and two or more being, “ Parties ”) covenant and agree as follows:

ARTICLE 1 INTERPRETATION

1.1 In this Agreement:
(a) the headings have been inserted for convenience of reference only and in no way define, limit, or enlarge the scope or meaning of the provisions of this Agreement;
(b) all references to any Party, whether a Party to this Agreement or not, will be read with such changes in number and gender as the context or reference requires; and
(c) when the context hereof makes it possible, the word “person” includes in its meaning any firm and any body corporate or politic.

ARTICLE 2 DEPOSIT INTO ESCROW

2.1 The Shareholder will deliver to the Escrow Agent certificate(s) representing the Shares (collectively, the “ Certificates ”) issued to the Shareholder, and executed stock power(s) (signature guaranteed as required by the Company’s transfer agent) with respect to any Shares (the “ Stock Powers ”). Thereafter, the Shares, the Certificates and the Stock Powers will be subject to the terms and conditions of this Agreement.
2.2 The Shareholder hereby appoints the Escrow Agent as the agent and attorney-in-fact for and on behalf of the Shareholder in respect of the Shares, on the terms and subject to the conditions set forth herein.

ARTICLE 3 ESCROW PROVISIONS

3.1 The Shareholder and the Company hereby direct the Escrow Agent to retain the Shares, the Certificates and the Stock Powers and not to cause anything to be done to release the same from escrow except in accordance with this Agreement. The Escrow Agent accepts its responsibilities hereunder and agrees to perform them in accordance with the terms hereof.
3.2 Unless prohibited by an order of a court of competent jurisdiction, the Escrow Agent will release from escrow the Shares and deliver, or cause to be delivered, to the Shareholder its Certificates or other valid evidence of the Shares, including direct registration statements, over a period of 12 months from the date of closing of the Transaction (the “ Closing Date ”), in twelve equal releases on the last day of each month beginning on the last day of the month in which the Closing Date occurs.
3.3 The Escrow Agent is authorized by the Shareholder and the Company to make the deliveries required by 2.1 of this Agreement.
3.4 If, at any time after the date of this Agreement, the Company subdivides (by any share split, stock dividend, recapitalization or otherwise) its outstanding common shares into a greater number of common shares, any Shares held in escrow immediately prior to such subdivision will be proportionately increased. If, at any time after the date of this Agreement, the Company

CW17327039.3

combines (by combination, consolidation or otherwise) its outstanding common shares into a smaller number of common shares, any Shares held in escrow immediately prior to such combination will be proportionately decreased. Any adjustment under this Section 3.4 shall become effective at the close of business on the date the subdivision or combination becomes effective.

ARTICLE 4 OTHER ESCROW PROVISIONS

4.1 If, from time to time during the term of this Agreement, there is any stock dividend, stock split, stock consolidation or other change in the character or amount of any of the outstanding securities of the Company, all new or additional securities to which the Shareholder is entitled by reason of his ownership of Shares, as of the date of any such occurrence, shall be appropriately adjusted to reflect any such occurrence and may be made by the Company after the effective date of any such occurrence. In the event of any such occurrence, certificates for such securities to which the Shareholder is entitled by reason of his ownership of Shares shall be held by the Escrow Agent in accordance with the terms of this Agreement and such securities will be included thereafter as “Shares” for the purposes of this Agreement.

ARTICLE 5

VOTING RIGHTS AND DIVIDENDS

5.1 Subject to the terms thereof, the Shareholder shall have all the rights of a shareholder with respect to the Shares while they are held in escrow including without limitation, the right to vote the Shares and receive any cash dividends declared thereon.

ARTICLE 6 ESCROW AGENT

6.1 In exercising the rights, duties and obligations prescribed or confirmed by this Agreement, the Escrow Agent will act honestly and in good faith and will exercise that degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
6.2 The Shareholder and the Company agree from time to time and at all times hereafter well and truly to save, defend and keep harmless and fully indemnify the Escrow Agent, its successors and assigns from and against all loss, costs, charges, suits, demands, claims, damages and expenses which the Escrow Agent, its successors or assigns may at any time or times hereafter bear, sustain, suffer or be put unto for or by reason or on account of its acting pursuant to this Agreement or anything in any manner relating thereto or by reason of the Escrow Agent’s compliance in good faith with the terms hereof; provided that the Shareholder and the Company shall not be obligated to save, defend and keep harmless and fully indemnify the Escrow Agent against any loss, costs, charges, suits, demands, claims, damages or expenses arising out of the gross negligence or willful misconduct of the Escrow Agent.
6.3 In case proceedings should hereafter be taken in any court respecting the Shares, the Certificates or the Stock Powers, the Escrow Agent will not be obliged to defend any such action or submit its rights to the court until it has been indemnified by other good and sufficient security in addition to the indemnity given in Section 6.2 against its costs of such proceedings.

CW17327039.3

6.4 The Escrow Agent will have no responsibility in respect of loss of the Certificates and the Stock Powers except the duty to exercise such care in the safekeeping thereof as it would exercise if the Certificates and the Stock Powers belonged to the Escrow Agent. The Escrow Agent may act on the advice of counsel but will not be responsible for acting or failing to act on the advice of counsel.
6.5 The Escrow Agent will not be bound in any way by any contract between the other Parties whether or not it has notice thereof or of its terms and conditions and the only duty, liability and responsibility of the Escrow Agent will be to hold the Certificates and the Stock Powers as herein directed and to deliver the same to such persons and other such conditions as are herein set forth. The Escrow Agent will not be required to pass upon the sufficiency of any of the Certificates or the Stock Powers or to ascertain whether or not the person or persons who have executed, signed or otherwise issued or authenticated the said documents have authority to so execute, sign or authorize, issue or authenticate the said documents or any of them, or that they are the same persons named therein or otherwise to pass upon any requirement of such instruments that may be essential for their validity, but it shall be sufficient for all purposes under this Agreement insofar as the Escrow Agent is concerned that the said documents are deposited with it as herein specified by the Parties with the Escrow Agent.
6.6 In the event that the Shares are attached, garnished or levied upon under any court order, or if the delivery of such property is stayed or enjoined by any court order or if any court order, judgment or decree is made or entered affecting such property or affecting any act by the Escrow Agent, the Escrow Agent will obey and comply with all writs, orders, judgments or decrees so entered or issued, whether with or without jurisdiction, notwithstanding any provision of this Agreement to the contrary. If the Escrow Agent obeys and complies with any such writs, orders, judgments or decrees, it will not be liable to any of the Parties or to any other person by reason of such compliance, notwithstanding that such writs, orders, judgments or decrees may be subsequently reversed, modified, annulled, set aside or vacated.
6.7 Except as herein otherwise provided, the Escrow Agent is authorized and directed to disregard any and all notices and warnings which may be given to it by any of the Parties or by any other person, firm, association or corporation. It will, however obey the order, judgment or decree of any court of competent jurisdiction, and it is hereby authorized to comply with and obey such orders, judgments or decrees and in case of such compliance, it shall not be liable by reason thereof to any of the Parties or to any other person, firm, association or corporation, even if thereafter any such order, judgment or decree may be reversed, modified, annulled, set aside or vacated.
6.8 If the Escrow Agent receives any valid court order contrary to the instructions contained in this Agreement, the Escrow Agent may continue to hold the Certificates until the lawful determination of the issue between the Parties.
6.9 If written notice of protest is made by any of the Shareholder and/or the Company to the Escrow Agent to any action contemplated by the Escrow Agent under this Agreement, and such notice sets out reasons for such protest, the Escrow Agent may at its sole discretion continue to hold the Certificates and the Stock Powers until the right to the documents is legally determined by a court of competent jurisdiction or otherwise.

CW17327039.3

6.10 The Escrow Agent may resign as Escrow Agent by giving not less than five days’ notice thereof to the Shareholder and the Company. The Shareholder and the Company may terminate the Escrow Agent by giving not less than five days’ notice to the Escrow Agent. The resignation or termination of the Escrow Agent will be effective and the Escrow Agent will cease to be bound by this Agreement on the date that is five days after the date of receipt of the termination notice given hereunder or on such other date as the Escrow Agent, the Shareholder and the Company may agree upon. All indemnities granted to the Escrow Agent herein will survive the termination of this Agreement or the termination or resignation of the Escrow Agent. In the event of termination or resignation of the Escrow Agent for any reason, the Escrow Agent shall, within that five days’ notice period deliver the Certificates to the new escrow agent to be named by the Shareholder and the Company.
6.11 The Escrow Agent may act upon any written instructions given jointly by the Shareholder and the Company.
6.12 Notwithstanding anything to the contrary contained herein, in the event of any dispute arising between any of the Shareholder and/or the Company, this Agreement or any matters arising thereto, the Escrow Agent may in its sole discretion deliver and interplead the Certificates and the Stock Powers into court and such delivery and interpleading will be an effective discharge to the Escrow Agent.

ARTICLE 7 FEES

7.1 The Company will pay all of the reasonable and customary compensation of the Escrow Agent and will reimburse the Escrow Agent for any and all reasonable expenses, disbursements and advances made by the Escrow Agent in the performance of its duties hereunder, including reasonable fees, expenses and disbursements incurred by its counsel.

ARTICLE 8 OTHER CONTRACTUAL ARRANGEMENTS

8.1 The Escrow Agent accepts duties and responsibilities under this Agreement, and the escrow securities and any share certificates or other evidence of these securities, solely as a custodian, bailee and agent. No trust is intended to be, or is or will be, created hereby and the Escrow Agent shall owe no duties hereunder as a trustee.
8.2 The Escrow Agent will not be responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of any escrow security deposited with it.
8.3 The Escrow Agent will have no responsibility for seeking, obtaining, compiling, preparing or determining the accuracy of any information or document, including the representative capacity in which a party purports to act, that the Escrow Agent receives as a condition to a release from escrow or a transfer of escrow securities within escrow under this Agreement.
8.4 The Escrow Agent will have no responsibility for escrow securities that it has released to a Shareholder or at a Shareholder’s direction according to this Agreement.

CW17327039.3

8.5 The Company and each Shareholder hereby jointly and severally agree to indemnify and hold harmless the Escrow Agent, its affiliates, and their current and former directors, officers, employees and agents from and against any and all claims, demands, losses, penalties, costs, expenses, fees and liabilities, including, without limitation, legal fees and expenses, directly or indirectly arising out of, in connection with, or in respect of, this Agreement, except, subject to section 8.7, where same result directly and principally from gross negligence, willful misconduct or bad faith on the part of the Escrow Agent. This indemnity survives the release of the escrow securities, the resignation or termination of the Escrow Agent and the termination of this Agreement.
8.6 Additional Provisions:
(a) The Escrow Agent will be protected in acting and relying reasonably upon any notice, direction, instruction, order, certificate, confirmation, request, waiver, consent, receipt, statutory declaration or other paper or document (collectively referred to as “ Documents ”) furnished to it and purportedly signed by any officer or person required to or entitled to execute and deliver to the Escrow Agent any such Document in connection with this Agreement, not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth or accuracy of any information therein contained, which it in good faith believes to be genuine.
(b) The Escrow Agent will not be bound by any notice of a claim or demand with respect thereto, or any waiver, modification, amendment, termination or rescission of this Agreement unless received by it in writing, and signed by the other Parties and approved by securities regulators with jurisdiction as set out in the Escrow Agreement, and, if the duties or indemnification of the Escrow Agent in this Agreement are affected, unless it has given its prior written consent.
(c) The Escrow Agent may consult with or retain such legal counsel and advisors as it may reasonably require for the purpose of discharging its duties or determining its rights under this Agreement and may rely and act upon the advice of such counsel or advisor. The Escrow Agent will give written notice to the Company as soon as practicable that it has retained legal counsel or other advisors. The Company will pay or reimburse the Escrow Agent for any reasonable fees, expenses and disbursements of such counsel or advisors.
(d) In the event of any disagreement arising under the terms of this Agreement, the Escrow Agent will be entitled, at its option, to refuse to comply with any and all demands whatsoever until the dispute is settled either by a written agreement among the Parties or by a court of competent jurisdiction.
(e) The Escrow Agent will have no duties or responsibilities except as expressly provided in this Agreement and will have no duty or responsibility under the Policy or arising under any other agreement, including any agreement referred to in this Agreement, to which the Escrow Agent is not a party.
(f) The Escrow Agent will have the right not to act and will not be liable for refusing to act unless it has received clear and reasonable documentation that complies with the terms

CW17327039.3

of this Agreement. Such documentation must not require the exercise of any discretion or independent judgment.

(g) The Escrow Agent is authorized to cancel any share certificate delivered to it and hold such Shareholder’s escrow securities in electronic or uncertificated form only, pending release of such securities from escrow.
(h) The Escrow Agent will have no responsibility with respect to any escrow securities in respect of which no share certificate or other evidence or electronic or uncertificated form of these securities has been delivered to it, or otherwise received by it.
8.7 The Escrow Agent will not be liable to any of the Parties hereunder for any action taken or omitted to be taken by it under or in connection with this Agreement, except for losses directly, principally and immediately caused by its bad faith, wilful misconduct or gross negligence. Under no circumstances will the Escrow Agent be liable for any special, indirect, incidental, consequential, exemplary, aggravated or punitive losses or damages hereunder, including any loss of profits, whether foreseeable or unforeseeable. Notwithstanding the foregoing or any other provision of this Agreement, in no event will the collective liability of the Escrow Agent under or in connection with this Agreement to any one or more Parties, except for losses directly caused by its bad faith or willful misconduct, exceed the amount of its annual fees under this Agreement or the amount of $[] whichever amount shall be greater.
8.8 The Company will pay the Escrow Agent reasonable remuneration for its services under this Agreement, which fees are subject to revision from time to time on 30 days’ written notice. The Company will reimburse the Escrow Agent for its expenses and disbursements. Any amount due under this section and unpaid 30 days after request for such payment, will bear interest from the expiration of such period at a rate per annum equal to the then current rate charged by the Escrow Agent, payable on demand.

In the event the Company or the Shareholders fail to pay the Escrow Agent any amounts owing to the Escrow Agent hereunder, the Escrow Agent shall have the right not to act (including the right not to release any additional securities from escrow) and will not be liable for refusing to act until it has been fully paid all amounts owing to it hereunder. Further, in the event the Company fails to pay the Escrow Agent its reasonable remuneration for its services hereunder, the Escrow Agent shall be entitled to charge the Shareholders for any further release of escrowed securities and shall have the right not to act (including the right not to release any additional securities from escrow) until the Shareholders have paid such amounts to the Escrow Agent.

In the event the Company or the Shareholders have failed to pay the amounts owing the Escrow Agent hereunder, the Escrow Agent shall not be liable for any loss caused by a delay in the release of the escrowed securities.

8.9 The Company shall forthwith provide a copy of the Exchange Bulletin, confirmation of listing and posting for trading of the subject escrowed shares or such other relevant document to the Escrow Agent as it shall require in order to make the required releases. No duty shall rest with the Escrow Agent to obtain this information independently nor shall it be held liable for any loss, claim, suit or action, howsoever caused by any delay in providing this information to it.

CW17327039.3

ARTICLE 9 GENERAL

9.1 Except as herein otherwise provided, no subsequent alteration, amendment, change, or addition to this Agreement will be binding upon the Parties unless reduced to writing and signed by the Parties. Further, the Company agrees that it will not consent to any alteration, amendment, change or addition to this Agreement unless such instructions have been unanimously agreed to by all directors of the Company who were not directors or officers of Spark prior to the Closing Date.
9.2 This Agreement will enure to the benefit of and be binding upon the Parties and their respective heirs, executors, administrators and successors.
9.3 The Parties will execute and deliver all such further documents, do or cause to be done all such further acts and things, and give all such further assurances as may be necessary to give full effect to the provisions and intent of this Agreement.
9.4 This Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia and any federal laws of Canada applicable therein.
9.5 Any notice required or permitted to be given under this Agreement will be in writing and may be given by delivering, sending by email or other means of electronic communication capable of producing a printed copy, or sending by prepaid registered mail, the notice, if to the Company or the Escrow Agent, the address set forth on the first page of the Agreement, or if to the Shareholder, to the address of the Shareholder set forth on the signature page to this Agreement (or to such other address as any Party may specify by notice in writing to another Party). Any notice delivered or sent by email or other means of electronic communication capable of producing a printed copy on a business day will be deemed conclusively to have been effectively given on the day the notice was delivered, or the electronic communication was successfully transmitted, as the case may be. Any notice sent by prepaid registered mail will be deemed conclusively to have been effectively given on the third business day after posting; but if at the time of posting or between the time of posting and the third business day thereafter there is a strike, lockout, or other labour disturbance affecting postal service, then the notice will not be effectively given until actually delivered.
9.6
Time is of the essence of this Agreement.
9.7 It is understood and agreed by the Parties that the only duties and obligations of the Escrow Agent are those specifically stated herein and no other.
9.8 This Agreement may be executed in one or more counterparts, all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. This Agreement may be executed by delivery of executed signature pages by fax and such fax execution will be effective for all purposes.

CW17327039.3

IN WITNESS WHEREOF, the Parties have executed this Voluntary Escrow Agreement effective as of the date first above written.

BEVCANNA ENTERPRISES INC.

Per:

Authorized Signatory

OLYMPIA TRUST COMPANY

Per:

Authorized Signatory

SIGNATURE PAGES FOR THE SHAREHOLDER TO FOLLOW.

CW17327039.3

SHAREHOLDER REPRESENTATIVE SIGNATURE PAGE

Witness (please print name under BRUCE DAWSON-SCULLY, as Shareholder signature) Representative for the shareholders listed on the attached Register of Shareholders

REGISTER OF SHARHOLDERS

Name of Shareholder:

Signatory of Shareholder (if Shareholder is an individual):

Signature of Authorized Signatory (if Shareholder is not an individual)

Print Name of Authorized Signatory

Phone Number of Shareholder:

Email of Shareholder:

Address of Shareholder for Notice:

Address for Delivery of Shareholder’s Certificates Number of Shares

Share certificate number (if applicable)

CW17327039.3

INDEMNITY ESCROW AGREEMENT

THIS AGREEMENT is dated ____

, 2021.

AMONG:

BEVCANNA ENTERPRISES INC. , a company incorporated under the laws of the Province of British Columbia

(the “ Purchaser ”)

AND:

1323977 B.C. LTD. , a company incorporated under the laws of the Province of British Columbia

(“ Subco ”)

AND:

Bruce Dawson-Scully , in his capacity as shareholder representative and not in his personal capacity

(the “ Vendor Representative ”)

AND:

CLARK WILSON LLP , a limited liability partnership formed under the laws of British Columbia, having a place of business at 900 – 885 West Georgia Street, Vancouver, British Columbia V6C 3H1

(the “ Escrow Agent ”)

WHEREAS:

A. The Purchaser, Subco, Shareholder Representative, Embark Health Inc. (“ Embark ”) and the Vendors named therein (the “ Company ”) entered into an acquisition agreement dated September 19, 2021 (the “ Acquisition Agreement ”) pursuant to which, inter alia , and Subco will amalgamate and will continue as a wholly-owned subsidiary of the Purchaser (the “ Transaction ”) and, in connection therewith an as contemplated in the Acquisition Agreement, the Purchaser will issue shares of the Purchaser to the holders of Embark common shares, including the Vendors; and
B. Pursuant to the terms of the Acquisition Agreement, the parties have agreed that the Purchaser will deposit into escrow with the Escrow Agent the Escrowed Indemnity Shares (as defined in the Acquisition Agreement), which are to be held in escrow from and after Closing on the terms and conditions set out herein.

CW17323934.4

NOW, THEREFORE, in consideration of the respective covenants, agreements, representations, warranties and indemnities herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby covenant and agree as follows:

ARTICLE I INTERPRETATION

1.1 Defined Terms

All capitalized terms used in this Agreement, but not otherwise defined herein are given the meanings set forth in the Acquisition Agreement.

1.2 Currency

All dollar amounts referred to in this Agreement are stated in Canadian currency.

1.3 Choice of Law

This Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein (without reference to conflicts of laws principles).

1.4 Interpretation Not Affected by Headings or Party Drafting

The division of this Agreement into articles, sections, paragraphs, subsections and clauses and the insertion of headings are for convenience of reference only and will not affect the construction or interpretation of this Agreement. The terms “ this Agreement ”, “ hereof ”, “ herein ”, “ hereunder ” and similar expressions refer to this Agreement and not to any particular article, section, paragraph, clause or other portion hereof and include any agreement or instrument supplementary or ancillary hereto. Unless otherwise indicated, any reference in this Agreement to an Article, Section, Recital, subsection or clause refers to the specified Article, Section, Recital, subsection or clause of this Agreement. The term “ including ” will mean including without limitation. The Parties acknowledge that their respective legal counsel have reviewed and participated in settling the terms of this Agreement, and the Parties hereby agree that any rule of construction to the effect that any ambiguity is to be resolved against the drafting Party will not be applicable in the interpretation of this Agreement.

1.5 Number and Gender

Where the context so requires in this Agreement, unless there is something in the subject matter or context inconsistent therewith:

(a) words importing the singular number include the plural and vice versa ; and
(b) words importing the use of any gender will include all genders including the neutral gender “ it ”.
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1.6 Reference to Time and Day

References to time of day or date in this Agreement will mean the local time or date in Vancouver, British Columbia.

1.7 Time of Essence

Time will be of the essence hereof.

1.8 Actions on Non-Business Days

If any payment is required to be made or other action (including the giving of notice) is required to be taken pursuant to this Agreement on a day which is not a Business Day, then such payment or action will be considered to have been made or taken in compliance with this Agreement if made or taken on the next succeeding Business Day.

1.9 Entire Agreement

This Agreement, together with the Acquisition Agreement, constitutes the entire agreement between the Parties and supersedes all prior agreements, representations, warranties, statements, promises, information, arrangements and understandings, whether oral or written, express or implied, with respect to the subject matter hereof. In the event of any conflict or inconsistency between this Agreement and the Acquisition Agreement then the terms of this Agreement will govern and supersede the terms of the Acquisition Agreement. For certainty, the absence from this Agreement of any term contained in the Acquisition Agreement will not be deemed to be a conflict or inconsistency for the purposes of this Section 1.9.

ARTICLE II APPOINTMENT OF ESCROW AGENT AND DEPOSIT AND RETENTION OF ESCROWED SHARES

2.1 Appointment of Escrow Agent

The Purchaser and the Vendors hereby appoint the Escrow Agent to act as escrow agent on the terms and conditions set forth in this Agreement and the Escrow Agent hereby accepts such appointment on such terms and conditions and agrees to hold the Escrowed Shares in accordance with the terms and conditions of this Agreement.

2.2 Deposit and Retention of Escrow Funds

(a) At the Closing, the Purchaser will deposit with the Escrow Agent the Escrowed Shares. The Escrowed Shares will be held and released by the Escrow Agent solely in accordance with the terms and conditions of this Agreement.
(b) The Escrow Agent accepts the duties and obligations under this Agreement, and the Escrowed Shares, solely as custodian, bailee and agent. No trust is intended to be, is or will be created hereby and the Escrow Agent will owe no duties hereunder as trustee.
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ARTICLE III RELEASE OF ESCROWED SHARES

3.1 Release Upon Joint Instruction, Claim Notice or Final Decision

The Escrowed Shares shall only be only distributed and released as follows:

(a) Indemnification Related Claims .
(i) At any time and from the time on or before the end of the period set out in Section 7.01 of the Acquisition Agreement (the “ Escrow Release Date ”), if the Purchaser makes a claim for indemnity under and in accordance with Article XV of the Acquisition Agreement (each, a “ Claim ”), the Purchaser may deliver to the Escrow Agent and Vendor Representative a written notice (each, an “ Escrow Notice ”) setting forth in reasonable detail the amount, nature and basis of the Claim. If Escrow Agent has not received a written objection to such Claim or portion thereof, specifying in reasonable detail the portion of the Claim at dispute and particulars in support thereof (each, a " Dispute Notice ") from Vendor Representative within 30 days following receipt by both Escrow Agent and Vendor Representative of such Escrow Notice, then within 5 Business Days of the expiry of the aforementioned 15-day period, Escrow Agent shall release, an number of Escrowed Shares equal to the amount of such Claim.
(ii) If the Vendor Representative delivers to the Escrow Agent and Purchaser a Dispute Notice within 15 days following receipt by both Escrow Agent and Vendors of such Escrow Notice, then Escrow Agent shall not distribute to Purchaser any portion of the Escrowed Shares that is the subject of the Dispute Notice until Escrow Agent receives either:
- A. joint written instructions signed by the Vendor Representative and Purchaser (the “ Joint Instruction ”); or
- B. a final and unappealed order of any court of competent jurisdiction or arbitral award (in respect of which the time for appeal has expired) directing the release to Purchaser of the portion of the Escrowed Shares that is determined to be the amount recoverable in respect of the Dispute Notice;

provided that, notwithstanding the foregoing, if the Dispute Notice specifies that the Vendor Representative object to a portion of the Claim (but not the entire Claim), Escrow Agent shall, after the lapse of the aforementioned 15-day period, deliver to Purchaser an amount from the Escrowed Shares equal to the portion of the Claim not objected to by the Vendor Representative. Upon receipt of such Joint Instructions or such final and unappealed order or arbitral award (in respect of which the time for appeal has expired), as the case may be, Escrow Agent shall release to Purchaser such number of the Escrowed Shares in accordance with such written instructions or final and unappealed order or arbitral award.

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(b) Release of Remaining Escrow Funds. Within 10 Business Days of the end of the period set out in Section 7.01 of the Acquisition Agreement, Escrow Agent shall release to Vendor Representative the remaining number of the Escrowed Shares.
(c) Court Order. Notwithstanding any other provision in this Agreement to the contrary, Escrow Agent shall disburse the Escrowed Shares (or any portion thereof) in accordance with a notice from either Purchaser or Vendor Representative of a final and unappealed order from a court of competent jurisdiction or arbitral award (in respect of which all rights of appeal have expired), along with a copy of the order, under which such court or arbitrator has determined whether and to what extent Purchaser or Vendor Representative are entitled to the Escrowed Shares (or any portion thereof) (the “ Final Decision ”).

ARTICLE IV LIABILITY AND INDEMNIFICATION

4.1 Responsibility of Escrow Agent; Indemnification

(a) The Purchaser and the Vendor Representative acknowledge and agree that the Escrow Agent acts under this Agreement as a depositary only and:
(i) will not be responsible or liable in any manner whatsoever for the sufficiency, correctness, genuineness or validity of any instrument deposited with it, for the form or execution of such instruments, for the identity, authority or right of any person or party executing or depositing such instruments or for determining or compelling compliance therewith, and will not otherwise be bound thereby;
(ii) will be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, and no implied duties or obligations of any kind will be read into this Agreement against or on the part of the Escrow Agent;
(iii) will not be required to take notice of any claim, demand or default with respect to, or any waiver, modification, amendment, termination or rescission of, this Agreement unless received by it in writing and signed by the Parties and if its duties herein are affected, unless it has given its prior written consent thereto, nor will the Escrow Agent be required to take any action with respect to such claim, demand or default involving any expense or liability, unless notice in writing of such default is formally given to the Escrow Agent and unless the Escrow Agent is indemnified, in a manner satisfactory to it, against such expense or liability;
(iv) may rely on and will be protected in acting or refraining from acting upon any written notice, instruction (including wire transfer or other payment instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and will have no responsibility for determining the accuracy thereof; and
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(v) will not be responsible for delays or failures in performance resulting from acts beyond its control, including strikes, lock-outs, riots, acts of war, epidemics, governmental regulations imposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters.
(b) The Escrow Agent will disburse the Escrowed Shares according to this Agreement only to the extent that the Escrowed Shares have been deposited with it made pursuant to Section 3.1(a).
(c) The Escrow Agent may employ such counsel, accountants, appraisers, other experts, agents, agencies or advisors as it may reasonably require for the purpose of discharging its duties under this Agreement, and the Escrow Agent may act and will be protected in acting in good faith on the opinion or advice or on information obtained from any such parties and will not be responsible for any misconduct on the part of any of them. The reasonable costs of such services will be added paid by the Purchaser and Vendor Representative equally.
(d) The Escrow Agent will retain the right not to act and will not be held liable for refusing to act unless it has received clear and reasonable documentation which complies with the terms of this Agreement. Such documentation must not require the exercise of any discretion or independent judgment.
(e) No provision of this Agreement will require the Escrow Agent to expend or risk its own funds or otherwise incur financial liability in the performance of its duties or the exercise of any of its rights or powers unless indemnified as provided for herein, other than as a result of its own negligence, bad faith or wilful misconduct.
(f) The Escrow Agent will not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, except for its own negligence, bad faith or wilful misconduct.
(g) The Escrow Agent will incur no liability with respect to the delivery or non-delivery of any cash, whether delivered by hand, wire transfer, registered mail or bonded courier, other than as a result of its own negligence, bad faith or wilful misconduct.
(h) The Purchaser (as to 50%) and the Vendor Representative (as to 50%) will be liable to indemnify and hold harmless the Escrow Agent and its successors and assigns from and against any loss, fee, claim, demand, penalty, liability, damage, cost and expense of any nature incurred by the Escrow Agent or any of its successors or assigns arising out of or in connection with this Agreement or with the administration of its duties hereunder, including reasonable legal fees and other costs and expenses of defending or preparing to defend against any claim of liability, unless and except to the extent such loss, liability, damage, cost or expense is caused by the Escrow Agent’s negligence, bad faith or wilful misconduct.
(i) This Section 4.1, including the foregoing indemnification, will survive notwithstanding any termination of the Agreement or the resignation or removal of the Escrow Agent.
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4.2 Privacy and Anti-Money Laundering

The Purchaser and the Vendor Representative acknowledge that the Escrow Agent may, in the course of providing services hereunder, collect or receive financial and other personal information about such Parties or their representatives, as individuals, or about other individuals related to the subject matter hereof, and use such information for the following purposes:

(i) to provide the services required under this Agreement and other services that may be requested from time to time by the Purchaser and the Vendors Representative;
(ii) to meet the Escrow Agent’s legal and regulatory requirements; and
(iii) if social insurance numbers are collected by the Escrow Agent, to perform tax reporting and to assist in verification of an individual’s identity for security purposes.

Each of the Purchaser and the Vendor Representative agree that it will not provide or cause to be provided to the Escrow Agent any personal information relating to an individual who is not a party to this Agreement unless the Purchaser or the Vendor Representative, as applicable, has assured itself that such individual understands and has consented to the aforementioned uses and disclosures.

The Escrow Agent will retain the right not to act and will not be liable for refusing to act if, due to a lack of information or for any other reason whatsoever, the Escrow Agent, in its sole judgment, determines that such act might cause it to be in non-compliance with any applicable anti-money laundering or anti-terrorist legislation, regulation or guideline. If the Escrow Agent, in its sole judgment, determines at any time that its acting under this Agreement has resulted in its being in non-compliance with any applicable anti-money laundering or anti-terrorist legislation, regulation or guideline, then it will have the right to resign on 15 Business Days’ written notice to the other Parties, provided that:

(i) the Escrow Agent’s written notice will describe the circumstances of such noncompliance;
(ii) if such circumstances are rectified to the Escrow Agent’s reasonable satisfaction within such 15-Business Day period, then such resignation will not be effective; and
(iii) except as explicitly provided otherwise in this Section 4.2, the Escrow Agent will comply with Section 5.2.

ARTICLE V TERMINATION

5.1 Termination of Agreement

This Agreement may be terminated only as follows:

(a) automatically upon the release of the entirety of the Escrowed Shares; or
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(b) by an instrument in writing executed by the Vendor Representative, the Purchaser, and the Escrow Agent.

5.2 Resignation of Escrow Agent

(a) The Escrow Agent may at any time resign as such, subject to this Section 5.2(a), by delivering written notice of resignation to the other Parties and by delivering the Escrowed Shares and the, or what remains thereof, to any successor escrow agent designated by the Purchaser and the Vendors or by a court of competent jurisdiction, whereupon the Escrow Agent will be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Escrow Agent will take effect on the earlier to occur of:
(i) the appointment of a successor escrow agent; and
(ii) the day which is 30 days after the date of delivery of the Escrow Agent’s written notice of resignation to the other Parties, or such shorter notice as the Purchaser and the Vendors accept as sufficient

(the “ Resignation Date ”).

(b) If the Escrow Agent has not received written notice of the designation of a successor escrow agent by the Resignation Date, the Escrow Agent’s sole responsibility after such time will be to retain and safeguard the Escrowed Shares until receipt of written notice of the designation of a successor escrow agent hereunder or pursuant to a final nonappealable order of a court of competent jurisdiction. If a successor escrow agent has not been appointed within 90 days after the date of the delivery of its written notice of resignation, the Escrow Agent may deliver the Escrowed Shares (less any portion thereof previously distributed in accordance with this Agreement) to the British Columbia Supreme Court whereupon this Agreement will terminate and the Escrow Agent will have no further duties and obligations under this Agreement.
(c) The Purchaser and the Vendor Representative will have power at any time to remove the existing Escrow Agent and to appoint a successor escrow agent.
(d) If the Escrowed Shares are to be released hereunder to a party who, after the delivery of a Joint Instruction or a Final Decision, has become bankrupt, has gone into liquidation or has otherwise become incapable of performing their rights and responsibilities under this Agreement, the Escrow Agent may deliver the Escrowed Shares, to the British Columbia Supreme Court. Upon such delivery of the Escrowed Shares to the British Columbia Supreme Court pursuant to this Section 5.2(d), this Agreement will terminate and the Escrow Agent will have no further duties or obligations.
(e) In the event of the Escrow Agent resigning or being removed or becoming bankrupt, going into liquidation or otherwise becoming incapable of acting under this Agreement, the Purchaser and the Vendor Representative will immediately appoint a successor escrow agent. Failing such appointment by the Purchaser and the Vendor Representative, the Escrow Agent, acting alone, may apply, at the expense of the
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Vendors, to the British Columbia Supreme Court for the appointment of a successor escrow agent.

(f) Any successor escrow agent appointed under any provision of this Section 5.2 will be vested with the same powers, rights, duties and responsibilities as if it had been originally named in this Agreement as Escrow Agent. At the request of the Purchaser, the Vendors, or the successor escrow agent, the Escrow Agent will duly assign, transfer and deliver to the successor escrow agent the Escrowed Shares and all records kept relating to the Escrowed Shares.

5.3 Capacity of Escrow Agent

The Parties acknowledge that the Escrow Agent is a firm of barristers and solicitors that acts for the Purchaser and that it may continue to act as such during the term of this Agreement and before and after any assignment of its rights and obligations under this Agreement to a successor escrow agent. The Escrow Agent will not be deemed to be in conflict by virtue of its holding the Escrowed Shares or performing its duties under this Agreement.

ARTICLE VI GENERAL PROVISIONS

6.1 Notice

Any notice, designation, communication, request, demand or other document, required or permitted to be given or sent or delivered hereunder to any Party will be in writing and will be sufficiently given or sent or delivered if it is:

(i) delivered personally to such Party or to an officer or director of such Party;
(ii) sent to the Party entitled to receive it by registered mail, postage prepaid, mailed in Canada; or
(iii) sent by facsimile or email.

Any notice, designation, communication, request, demand or other document, required or permitted to be given or sent or delivered hereunder to any Party will be sent to the following addresses or facsimile numbers:

(i) in the case of the Vendors or the Vendor Representative:
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77 King Street, Suite 400 Toronto, Ontario M5K 0A1

Attention: Bruce Dawson-Scully, CEO Email: [email protected]

with copies to:

Dentons Canada LLP 77 King Street, Suite 400 Toronto, Ontario M5K 0A1

Attention: Eric Foster Email: [email protected]

(ii) in the case of the Purchaser or Subco:

Suite 200 – 1672 West 2nd Avenue Vancouver, British Columbia V6J 1H4

Attention: John Campbell, CFO Email: [email protected]

with copies to: Clark Wilson LLP 900 – 885 West Georgia Street Vancouver, British Columbia V6C 3H1

Attention: Cam McTavish and Craig Hoskins Email: [email protected] and [email protected]

(iii) in the case of the Escrow Agent:

900 – 885 West Georgia Street Vancouver, British Columbia V6C 3H1

Attention: Cam McTavish and Craig Hoskins Email: [email protected] and [email protected]

or to such other address, facsimile number or email address as the Party entitled to or receiving such notice, designation, communication, request, demand or other document will, by a notice given in accordance with this Section 6.1, have communicated to the Party giving or sending or delivering such notice, designation, communication, request, demand or other document.

Any notice, designation, communication, request, demand or other document given or sent or delivered as aforesaid will:

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(i) if delivered as aforesaid, be deemed to have been given, sent, delivered and received on the date of delivery;
(ii) if sent by mail as aforesaid, be deemed to have been given, sent, delivered and received on the fourth Business Day following the date of mailing, unless at any time between the date of mailing and the fourth Business Day thereafter there is a discontinuance or interruption of regular postal service, whether due to strike or lockout or work slowdown, affecting postal service at the point of dispatch or delivery or any intermediate point, in which case the same will be deemed to have been given, sent, delivered and received in the ordinary course of the mails, allowing for such discontinuance or interruption of regular postal service; or
(iii) if sent by facsimile or email as aforesaid, be deemed to have been given, sent, delivered and received on the date the sender receives the confirmation of transmission or the date the email is sent, as applicable.

6.2 Severability

Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, the illegality, invalidity or unenforceability of that provision will not affect:

(a) the legality, validity or enforceability of the remaining provisions of this Agreement, or
(b) the legality, validity or enforceability of that provision in any other jurisdiction, except that if:
(i) on the reasonable construction of this Agreement, as a whole, the applicability of the other provision presumes the validity and enforceability of the particular provision, the other provision will be deemed also to be invalid or unenforceable; and
(ii) as a result of the determination by a court of competent jurisdiction that any part of this Agreement is unenforceable or invalid and, as a result of this Section 6.2, the basic intentions of the Parties in this Agreement are entirely frustrated, the Parties will use all reasonable efforts to amend, supplement or otherwise vary this Agreement to confirm their mutual intention in entering into this Agreement.

6.3 Further Assurances

Each of the Parties hereby covenants and agrees that, at any time and from time to time after the date hereof, it will, at its expense and upon the request of any other Party, do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered all such further acts, deeds, assignments, transfers, conveyances and assurances as may be required for the better carrying out and performance of all the terms of this Agreement.

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6.4 Waiver

Except as expressly provided in this Agreement, no waiver of this Agreement will be binding unless executed in writing by the Party to be bound thereby. No waiver of any provision of this Agreement will constitute a waiver of any other provision nor will any waiver of any provision of this Agreement constitute a continuing waiver unless expressly provided.

6.5 Amendments

No modification or amendment to this Agreement may be made unless agreed to by the Parties in writing.

6.6 Successors and Assigns

This Agreement will be binding upon and enure to the benefit of the Parties and their respective successors and permitted assigns. Subject to Section 5.2, neither this Agreement nor any of the rights, interests or obligations under this Agreement will be assigned by any Party without the prior written consent of the other Parties, which consent will not be unreasonably withheld.

6.7 Execution and Delivery

This Agreement may be executed in counterpart and such counterparts together shall be effective to constitute a single instrument. Delivery of an executed counterpart of this Agreement by electronic means (whether that signature is by the hand of the signatory or is computer or machine generated) shall be equally effective as delivery of a manually executed counterpart hereof . The Parties agree that copies of this Agreement containing such signatures shall be admissible in court without further authentication.

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

BEVCANNA ENTERPRISES INC.

Per: Name: Title: 1323977 B.C. LTD. Per: Name: Title:

Bruce Dawson-Scully

Signature Page to Escrow Agreement

CLARK WILSON LLP

Per:

Authorized Signatory

Signature Page to Escrow Agreement

Schedule “D”

ILLUSTRATIVE WORKING CAPITAL CALCULATION

Initial Purchase Price *Incremental Indebtedness + Working Capital Adjustment* Government Loan (Draft FS 2020) Convertible Debenture (Draft FS 2020) Increase in Cash Mortgage Total Debt Adjusted Purchase Price	$21,000,000 $100,000 $392,191 -$3,000,000 $3,000,000
	$492,191 $20,507,809

CW17369373.1

Schedule “E”

U.S. REPRESENTATION LETTER

TO: BEVCANNA ENTERPRISES INC. (“BevCanna”)

RE: ACQUISITION AGREEMENT DATED SEPTEMBER 19, 2021 (the “Agreement”) AMONG BEVCANNA AND EMBARK HEALTH INC. AND CERTAIN OTHER PARTIES

Capitalized terms not specifically defined in this certification have the meaning ascribed to them in the Agreement to which this Schedule is attached. In the event of a conflict between the terms of this certification and such Agreement, the terms of this certification will prevail.

In addition to the covenants, representations and warranties contained in the Agreement to which this Schedule is attached, the undersigned (the “ U.S. Embark Securityholder ”) covenants, represents and warrants to BevCanna that:

(a) It has such knowledge, skill and experience in financial, investment and business matters as to be capable of evaluating the merits and risks of an investment in the Closing Payment Shares and the Earn-Out Preferred Shares (such shares and any BevCanna common shares issued upon conversion of the Earn-Out Shares collectively referred to herein as the “ BevCanna Shares ”) and it is able to bear the economic risk of loss of its entire investment. To the extent necessary, the U.S. Embark Securityholder has retained, at his or her own expense, and relied upon, appropriate professional advice regarding the investment, tax and legal merits and consequences of the Agreement and owning the BevCanna Shares.
(b) BevCanna has provided to it the opportunity to ask questions and receive answers concerning the terms and conditions of the Amalgamation and it has had access to such information concerning BevCanna as it has considered necessary or appropriate in connection with its investment decision to acquire the BevCanna Shares, and that any answers to questions and any request for information have been complied with to the U.S. Embark Securityholder’s satisfaction.
(c) It is acquiring the BevCanna Shares for its own account, for investment purposes only and not with a view to any resale or distribution and, in particular, it has no intention to distribute either directly or indirectly the BevCanna Shares in the United States or to, or for the account or benefit of, a U.S. Person or a person in the United States; provided, however, that this paragraph will not restrict the U.S. Embark Securityholder from selling or otherwise disposing of the BevCanna Shares pursuant to registration thereof pursuant to the U.S. Securities Act and any applicable state securities laws or under an exemption from such registration requirements.
(d) The address of the U.S. Embark Securityholder set out in the signature block below is the true and correct principal address of the U.S. Embark Securityholder and can be relied on by BevCanna for the purposes of state blue-sky laws, and the U.S. Embark Securityholder has not been formed for the specific purpose of purchasing the BevCanna Shares.
(e) It understands (i) the BevCanna Shares have not been and will not be registered under the U.S. Securities Act or the securities laws of any state of the United States; and (ii) the offer and sale contemplated hereby is being made in reliance on an exemption from such registration requirements in reliance on Rule 506(b) of Regulation D of the U.S. Securities Act.
(f) The U.S. Embark Securityholder is
(i) an “accredited investor” as defined in Rule 501(a) of Regulation D of the U.S. Securities Act by virtue of meeting one of the following criteria set forth in Appendix “A” hereto ( please hand-write your initials on the appropriate lines on Appendix “A” ), which Appendix “A” forms an integral part hereof; or
(ii) is not an “accredited investor” as defined in Rule 501(a) of Regulation D of the U.S. Securities Act, has a pre-existing substantive relationship with BevCanna, and has completed Appendix “B” hereto, which forms an integral part hereof.
(g) The U.S. Embark Securityholder has not purchased the BevCanna Shares as a result of any form of “general solicitation” or “general advertising” (as those terms are used in Regulation D under the U.S. Securities Act), including advertisements, articles, press releases, notices or other communications published in any newspaper, magazine or similar media or on the Internet, or broadcast over radio or television, or the Internet or other form of telecommunications, including electronic display, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising.
(h) It acknowledges that the BevCanna Shares will be “restricted securities”, as such term is defined in Rule 144(a)(3) under the U.S. Securities Act, and may not be offered, sold, pledged, or otherwise transferred, directly or indirectly, without prior registration under the U.S. Securities Act and applicable state securities laws, and it agrees that if it decides to offer, sell, pledge or otherwise transfer, directly or indirectly, any of the BevCanna Shares, it will not offer, sell or otherwise transfer, directly or indirectly, the BevCanna Shares except:
- (i) to BevCanna;
- (ii) outside the United States in an “offshore transactions” meeting the requirements of Rule 904 of Regulation S under the U.S. Securities Act, if available, and in compliance with applicable local laws and regulations;
- (iii) in compliance with the exemption from the registration requirements under the U.S. Securities Act provided by Rule 144 thereunder, if available, and in accordance with any applicable state securities or “blue sky” laws; or (iv) in a transaction that does not require registration under the U.S. Securities Act or any applicable state securities laws governing the offer and sale of securities, and, in the case of each of (iii) and (iv) above, it has prior to such sale furnished to BevCanna an opinion of counsel in form and substance reasonably satisfactory to BevCanna stating that such transaction is exempt from registration under applicable securities laws and that the legend referred to in paragraph (k) below may be removed.
(i) It understands and agrees that the BevCanna Shares may not be acquired in the United States or by a U.S. Person or on behalf of, or for the account or benefit of, a U.S. Person or a person in the United States unless registered under the U.S. Securities Act and any applicable state securities laws or unless an exemption from such registration requirements is available.
(j) It acknowledges that it has not purchased the BevCanna Shares as a result of, and will not itself engage in, any “directed selling efforts” (as defined in Regulation S under the U.S. Securities Act) in the United States in respect of the BevCanna Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the BevCanna Shares.
(k) The certificates representing the BevCanna Shares issued hereunder, as well as all certificates issued in exchange for or in substitution of the foregoing, until such time as the same is no longer required under the applicable requirements of the U.S. Securities Act or applicable state securities laws and regulations, will bear, on the face of such certificate, the following legend:
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF BEVCANNA ENTERPRISES INC. (THE “COMPANY”) THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY; (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT AND IN ACCORDANCE WITH ALL LOCAL LAWS AND REGULATIONS; (C) IN ACCORDANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER, IF AVAILABLE, AND IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS; OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, AND, IN THE CASE OF CLAUSE (C) OR (D), THE SELLER FURNISHES TO THE COMPANY AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY TO SUCH EFFECT. THE PRESENCE OF THIS LEGEND MAY IMPAIR THE ABILITY OF THE HOLDER HEREOF TO EFFECT “GOOD DELIVERY” OF THE SECURITIES REPRESENTED HEREBY ON A CANADIAN STOCK EXCHANGE.”

provided, that if the BevCanna Shares were issued at a time when BevCanna qualifies as a “foreign private issuer” as defined in Rule 405 under the U.S. Securities Act, and are being sold outside the United States in compliance with the requirements of Rule 904 of Regulation S and in compliance with Canadian local laws and regulations, the legend set forth above may be removed by providing an executed declaration to the registrar and transfer agent of BevCanna, in substantially the form set forth as Appendix “C” attached hereto (or in such other forms as BevCanna may prescribe from time to time) and, if requested by BevCanna or the transfer agent, an opinion of counsel of recognized standing in form and substance reasonably satisfactory to BevCanna and the transfer agent to the effect that such sale is being made in compliance with Rule 904 of Regulation S; and provided, further, that, if any BevCanna Shares are being sold otherwise than in accordance with Regulation S and other than to BevCanna, the legend may be removed by delivery to the registrar and transfer agent and BevCanna of an opinion of counsel, of recognized standing reasonably satisfactory to BevCanna, that such legend is no longer required under applicable requirements of the U.S. Securities Act or state securities laws.

(l) The certificates representing the BevCanna Shares will also be imprinted with a restrictive legend substantially in the following form pursuant to Canadian securities laws:

“UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE THE DATE THAT IS 4 MONTHS AND A DAY AFTER THE LATER OF (I) [ THE CLOSING DATE ] AND (II) THE DATE THE ISSUER BECAME A REPORTING ISSUER IN ANY PROVINCE OR TERRITORY OF CANADA.”

(m) It understands and agrees that there may be material tax consequences to the U.S. Embark Securityholder of an acquisition, holding or disposition of any of the BevCanna Shares. BevCanna gives no opinion and makes no representation with respect to the tax consequences to the U.S. Embark Securityholder under United States, state, local or foreign tax law of the undersigned’s acquisition, holding or disposition of such BevCanna Shares. In particular, no determination has been made whether BevCanna will be a “passive foreign investment company” within the meaning of Section 1297 of the United States Internal Revenue Code of 1986, as amended.
(n) It consents to BevCanna making a notation on its records or giving instructions to any transfer agent of BevCanna in order to implement the restrictions on transfer set forth and described in this certification and the Agreement.
(o) It understands and agrees that the financial statements of BevCanna have been or will be prepared in accordance with International Financial Reporting Standards and therefore may be materially different from financial statements prepared under U.S. generally accepted accounting principles and therefore may not be comparable to financial statements of United States companies.
(p) It understands and acknowledges that BevCanna is incorporated outside the United States, consequently, it may be difficult to provide service of process on BevCanna and it may be difficult to enforce any judgment against BevCanna.
(q) It understands that BevCanna does not have any obligation to register the BevCanna Shares under the U.S. Securities Act or any applicable state securities or “blue-sky” laws or to take action so as to permit resales of the BevCanna Shares. Accordingly, the U.S. Embark Securityholder understands that absent registration, it may be required to hold the BevCanna Shares indefinitely. As a consequence, the U.S. Embark Securityholder understands it must bear the economic risks of the investment in the BevCanna Shares for an indefinite period of time.

The foregoing representations contained in this certificate are true and accurate as of the date of this certificate and will be true and accurate as of the Effective Time. If any such representations will not be true and accurate prior to the Effective Time, the undersigned will give immediate written notice of such fact to BevCanna prior to the Effective Time.

ONLY U.S. SECURITYHOLDERS NEED COMPLETE AND SIGN

Dated _______.

X Signature of individual (if U.S. Embark Securityholder is an individual)

X Authorized signatory (if U.S. Embark Securityholder is not an individual)

Name of U.S. Embark Securityholder ( please print )

Address of U.S. Embark Securityholder ( please print )

Name of authorized signatory (if applicable) ( please print )

Official capacity of authorized signatory (if applicable) ( please print )

Appendix “A” to

U.S. REPRESENTATION LETTER FOR U.S. EMBARK SECURITYHOLDERS

TO BE COMPLETED BY U.S. EMBARK SECURITYHOLDERS THAT ARE U.S. ACCREDITED INVESTORS

In addition to the covenants, representations and warranties contained in the Agreement and the Schedule “C” to which this Appendix is attached, the undersigned (the “ U.S. Embark Securityholder ”) covenants, represents and warrants to BevCanna that the U.S. Embark Securityholder is an “accredited investor” as defined in Rule 501(a) of Regulation D of the U.S. Securities Act by virtue of meeting one of the following criteria ( please hand-write your initials on the appropriate lines ):

Initials _

Any bank as defined in Section 3(a)(2) of the United States Securities Act of 1933, as amended (the “U.S. Securities Act”), or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of the U.S. Securities Act whether acting in its individual or fiduciary capacity; any broker or dealer registered pursuant to Section 15 of the U.S. Securities Exchange Act of 1934; any investment adviser registered pursuant to section 203 of the Investment Advisers Act of 1940 or registered pursuant to the laws of a state; any investment adviser relying on the exemption from registering with the Commission under section 203(l) or (m) of the Investment Advisers Act of 1940; any insurance company as defined in Section 2(a)(13) of the U.S. Securities Act; any investment company registered under the U.S. Investment Company Act of 1940 or a business development company as defined in Section 2(a)(48) of that Act; any Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the U.S. Small Business Investment Act of 1958; any Rural Business Investment Company as defined in section 384A of the Consolidated Farm and Rural Development Act; any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of US$5,000,000; any employee benefit plan within the meaning of the U.S. Employee Retirement Income Security Act of 1974 if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of US$5,000,000, or, if a self-directed plan, with investment decisions made solely by persons that are “accredited investors” (as such term is defined in Rule 501 of Regulation D of the U.S. Securities Act);

Initials _

Any private business development company as defined in Section 202(a)(22) of the U.S. Investment Advisers Act of 1940 ;

Any organization described in Section 501(c)(3) of the U.S. Internal Initials _ Revenue Code , corporation, Massachusetts or similar business trust, partnership, or limited liability company, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of US$5,000,000;

Initials _

Any trust with total assets in excess of US$5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person (being defined as a person who has such knowledge and experience in financial and business matters that he or she is capable of evaluating the merits and risks of the prospective investment);

Initials _
A natural person whose individual net worth, or joint net worth with that person’s spouse or spousal equivalent, at the time of purchase, exceeds US$1,000,000 (for the purposes of calculating net worth), (i) the person’s primary residence will not be included as an asset; (ii) indebtedness that is secured by the person’s primary residence, up to the estimated fair market value of the primary residence at the time of this certification, will not be included as a liability (except that if the amount of such indebtedness outstanding at the time of this certification exceeds the amount outstanding 60 days before such time, other than as a result of the acquisition of the primary residence, the amount of such excess will be included as a liability); and (iii) indebtedness that is secured by the person’s primary residence in excess of the estimated fair market value of the primary residence will be included as a liability;
Initials _
A natural person who had annual gross income during each of the last two full calendar years in excess of US$200,000 (or together with his or her spouse or spousal equivalent in excess of US$300,000) and reasonably expects to have annual gross income in excess of US$200,000 (or together with his or her spouse or spousal equivalent in excess of US$300,000) during the current calendar year, and no reason to believe that his or her annual gross income will not remain in excess of US$200,000 (or that together with his or her spouse or spousal equivalent will not remain in excess of US$300,000) for the foreseeable future;
Initials _

Any director or executive officer of BevCanna; or

Any entity in which all of the equity owners meet the requirements of at Initials _ least one of the above categories – if this category is selected, you must identify each equity owner and provide statements from each demonstrating how they qualify as an accredited investor .

ONLY U.S. SECURITYHOLDERS WHO ARE ACCREDITED INVESTORS NEED TO COMPLETE AND SIGN

Dated ___.

X Signature of individual (if U.S. Embark Securityholder is an individual)

Authorized signatory (if U.S. Embark Securityholder is not an individual)

Name of U.S. Embark Securityholder ( please print )

Address of U.S. Embark Securityholder ( please print )

Name of authorized signatory (if applicable) ( please print )

Official capacity of authorized signatory (if applicable) ( please print )

Appendix “B” to

U.S. REPRESENTATION LETTER FOR U.S. EMBARK SECURITYHOLDERS

TO BE COMPLETED BY U.S. EMBARK SECURITYHOLDERS THAT ARE NOT U.S. ACCREDITED INVESTORS

In addition to the covenants, representations and warranties contained in the Agreement and the Representation Letter to which this Appendix is attached, the undersigned (the “ U.S. Embark Securityholder ”) covenants, represents and warrants to BevCanna Enterprises Inc. (also referred to herein as the “ Company ”) that the U.S. Embark Securityholder understands that the BevCanna Shares have not been and will not be registered under the U.S. Securities Act and that the offer and sale of the BevCanna Shares to the U.S. Embark Securityholder contemplated by the Agreement is intended to be a private offering pursuant to Rule 506(b) of Regulation D of the U.S. Securities Act and/or section 4(a)(2) thereunder.

Your answers will at all times be kept strictly confidential. However, by signing this suitability questionnaire (the “ Questionnaire ”) the U.S. Embark Securityholder agrees that the Company may present this Questionnaire to such parties as may be appropriate if called upon to verify the information provided or to establish the availability of an exemption from registration of the private offering under the federal or state securities laws or if the contents are relevant to issue in any action, suit or proceeding to which the Company is a party or by which it is or may be bound. A false statement by the U.S. Embark Securityholder may constitute a violation of law, for which a claim for damages may be made against the U.S. Embark Securityholder. Otherwise, your answers to this Questionnaire will be kept strictly confidential. Please complete the following questionnaire:

Educational Background
(a) Briefly describe educational background, relevant institutions attended, dates, degrees:
(b) Briefly describe business involvement or employment during the past 10 years or since graduation from school, whichever period is shorter. (Specific employers need not be named. A sufficient description is needed to assist the Company in determining the extent of vocationally related experience in financial and business matters).
Investment experience
(a) Please indicate the frequency of your investment in marketable securities:
( ) Often; ( ) Occasionally; ( ) Seldom; ( ) Never.
(b) Please indicate the frequency of your investment in commodities futures:
( ) Often; ( ) Occasionally; ( ) Seldom; ( ) Never.
(c) Please indicate the frequency of your investment in options:
( ) Often; ( ) Occasionally; ( ) Seldom; ( ) Never.
(d) Please indicate the frequency of your investment in securities purchased on margin:
( ) Often; ( ) Occasionally; ( ) Seldom; ( ) Never.
(e) Please indicate the frequency of your investment in unmarketable securities;
( ) Often; ( ) Occasionally; ( ) Seldom; ( ) Never.
(f) Have your purchased securities sold in reliance on the private offering exemptions from registration pursuant to the U.S. Securities Act or any state laws during the past three years?
Yes No
(g) If you answered “Yes,” please provide the following information:

Year Security Nature of Issuer Business Invested Total Amount

(h) Do you believe you have sufficient knowledge and experience in financial and business affairs that you can evaluate the merits and risks of a purchase of the BevCanna Shares?

Yes No

(i) Do you believe you have sufficient knowledge of investments in general, and investments similar to a purchase of the BevCanna Shares in particular, to evaluate the risks associated with a purchase of the BevCanna Shares?

Yes

No

You hereby acknowledge that the foregoing statements are true and accurate to the best of your information and belief and that you will promptly notify the Company of any changes in the foregoing answers.

ONLY U.S. SECURITYHOLDERS WHO ARE NOT ACCREDITED INVESTORS NEED TO COMPLETE AND SIGN

Dated _______.

X Signature of individual (if U.S. Embark Securityholder is an individual)

Authorized signatory (if U.S. Embark Securityholder is not an individual)

Name of U.S. Embark Securityholder ( please print )

Address of U.S. Embark Securityholder ( please print )

Name of authorized signatory (if applicable) ( please print )

Official capacity of authorized signatory (if applicable) ( please print )

Appendix “C” to

U.S. REPRESENTATION LETTER FOR U.S. EMBARK SECURITYHOLDERS

Form of Declaration for Removal of Legend

TO: Registrar and transfer agent for the shares of BevCanna Enterprises Inc. (the “ Company

The undersigned (A) acknowledges that the sale of the __common shares in the capital of the Shareholder Represented by certificate number _______, to which this declaration relates, is being made in reliance on Rule 904 of Regulation S under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”), and (B) certifies that (1) the undersigned is not an “affiliate” (as defined in Rule 405 under the U.S. Securities Act) of the Company (except solely by virtue of being an officer or director of the Company) or a “distributor”, as defined in Regulation S, or an affiliate of a “distributor”; (2) the offer of such securities was not made to a person in the United States and either (a) at the time the buy order was originated, the buyer was outside the United States, or the seller and any person acting on its behalf reasonably believe that the buyer was outside the United States, or (b) the transaction was executed on or through the facilities of the Canadian Securities Exchange or a designated offshore securities market within the meaning of Rule 902(b) of Regulation S under the U.S. Securities Act, and neither the seller nor any person acting on its behalf knows that the transaction has been prearranged with a buyer in the United States; (3) neither the seller nor any affiliate of the seller nor any person acting on their behalf has engaged in any directed selling efforts in connection with the offer and sale of such securities; (4) the sale is bona fide and not for the purpose of “washing off” the resale restrictions imposed because the securities are “restricted securities” (as such term is defined in Rule 144(a)(3) under the U.S. Securities Act); (5) the seller does not intend to replace the securities sold in reliance on Rule 904 of Regulation S under the U.S. Securities Act with fungible unrestricted securities; and (6) the contemplated sale is not a transaction, or part of a series of transactions which, although in technical compliance with Regulation S, is part of a plan or a scheme to evade the registration provisions of the U.S. Securities Act. Unless otherwise specified, terms used herein have the meanings given to them by Regulation S under the U.S. Securities Act.

Dated: ____

Signature of individual (if Seller is an individual)

Authorized signatory (if Seller is not an individual)

Name of Seller ( please print )

Name of authorized signatory (if applicable) ( please print )

Official capacity of authorized signatory (if applicable) ( please print )

Affirmation by Seller’s Broker-Dealer (Required for sales pursuant to Section (B)(2)(b) above)

We have read the representations of our customer ____ (the “ Seller ”) contained in the foregoing Declaration for Removal of Legend, dated __, 20_, with regard to the sale, for such Seller’s account, of ___ common shares (the “ Securities ”) of the Shareholder Represented by certificate number __. We have executed sales of the Securities pursuant to Rule 904 of Regulation S under the United States Securities Act of 1933, as amended (the “ U.S. Securities Act ”), on behalf of the Seller. In that connection, we hereby represent to you as follows:

(1) no offer to sell Securities was made to a person in the United States;
(2) the sale of the Securities was executed in, on or through the facilities of the Toronto Stock Exchange, the TSX Venture Exchange or another designated o f shore secur i tes market (as d e find inRule 902(b) of Regulation S under the U . S Secur i tes Act), and, to the best of our knowledge, the sale was not pre-arranged with a buyer in the United States;
(3) no “directed selling efforts” were made in the United States by the undersigned, any affiliate of the undersigned, or any person acting on behalf of the undersigned; and
(4) we have done no more than execute the order or orders to sell the Securities as agent for the Seller and will receive no more than the usual and customary broker’s commission that would be received by a person executing such transaction as agent.

For purposes of these representations: “ affiliate ” means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the undersigned; “ directed selling efforts ” means any activity undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the Securities (including, but not be limited to, the solicitation of offers to purchase the Securities from persons in the United States); and “ United States ” means the United States of America, its territories or possessions, any State of the United States, and the District of Columbia.

Legal counsel to the Company shall be entitled to rely upon the representations, warranties and covenants contained herein to the same extent as if this affirmation had been addressed to them.

Name of Firm

By: Authorized Signatory

SCHEDULE “F”

VENDORS

Bruce Dawson-Scully: 2,466,667 Embark Shares.

Marcus Richardson: 2,366,667 Embark Shares. Michael Curtis: 2,984,005 Embark Shares.

SCHEDULE “G”

EBITDA THRESHOLDS AND

MAXIMUM EARN-OUT AMOUNTS

The Maximum Earn-Out Amount for each period is determined as 20% of the difference between " Capped " and " Threshold " case annual Adjusted EBITDA.

Period Ending: 2022-12-31 2023-12-31 2024-12-31	Period Ending: 2022-12-31 2023-12-31 2024-12-31	Period Ending: 2022-12-31 2023-12-31 2024-12-31	Period Ending: 2022-12-31 2023-12-31 2024-12-31
Annual Adjusted EBITDA Threshold	$14,668,592	$15,776,314	$15,745,166

Annual Adjusted EBITDA (Capped Amount)	$28,474,110	$31,867,659	$31,836,511

CW17369373.1

SCHEDULE “H”

AMALCO ARTICLES

CW17369373.1

Incorporation No. BC_____

BUSINESS CORPORATIONS ACT

ARTICLES

OF

EMBARK HEALTH INC.

Part 1 – Interpretation .......................................................................................... 1 Part 2 – Shares and Share certificates .................................................................. 2 Part 3 – Issue of Shares ........................................................................................ 3 Part 4 – Share Transfers ....................................................................................... 3 Part 5 – Acquisition of Shares ............................................................................... 4 Part 6 – Borrowing Powers ................................................................................... 4 Part 7 – General Meetings .................................................................................... 4 Part 8 – Proceedings at Meetings of Shareholders .............................................. 6 Part 9 – Alterations and Resolutions .................................................................... 9 Part 10 – Votes of Shareholders ......................................................................... 10 Part 11 – Directors .............................................................................................. 13 Part 12 – Election and Removal of Directors ...................................................... 14 Part 13 – Proceedings of Directors ..................................................................... 20 Part 14 – Committees of Directors ..................................................................... 22 Part 15 – Officers ................................................................................................ 23 Part 16 – Certain Permitted Activities of Directors ............................................ 23 Part 17 – Indemnification ................................................................................... 24 Part 18 – Auditor ................................................................................................ 24 Part 19 – Dividends ............................................................................................. 24 Part 20 – Accounting Records............................................................................. 25 Part 21 – Execution of Instruments .................................................................... 25 Part 22 – Notices ................................................................................................ 26 Part 23 – Restriction on Share Transfer .............................................................. 27

CW17326221.1

Incorporation No. BC___

BUSINESS CORPORATIONS ACT

ARTICLES

EMBARK HEALTH INC.

(the “ Company ”)

PART 1– INTERPRETATION

1.1 Definitions

Without limiting Article 1.2, in these Articles, unless the context requires otherwise:

(a) “adjourned meeting” means the meeting to which a meeting is adjourned under Article 8.6 or 8.9;
(b) “board” and “directors” mean the board of directors of the Company for the time being;
(c) “ Business Corporations Act ” means the Business Corporations Act , S.B.C. 2002, c.57, and includes its regulations;
(d) “Company” means Embark Health Inc.;
(e) “ Interpretation Act ” means the Interpretation Act , R.S.B.C. 1996, c. 238; and
(f) “trustee”, in relation to a shareholder, means the personal or other legal representative of the shareholder, and includes a trustee in bankruptcy of the shareholder.

1.2 Business Corporations Act definitions apply

The definitions in the Business Corporations Act apply to these Articles.

1.3 Interpretation Act applies

The Interpretation Act applies to the interpretation of these Articles as if these Articles were an enactment.

1.4 Conflict in definitions

If there is a conflict between a definition in the Business Corporations Act and a definition or rule in the Interpretation Act relating to a term used in these Articles, the definition in the Business Corporations Act will prevail in relation to the use of the term in these Articles.

1.5 Conflict between Articles and legislation

If there is a conflict between these Articles and the Business Corporations Act , the Business Corporations Act will prevail.

CW17326221.1

PART 2 – SHARES AND SHARE CERTIFICATES

2.1 Form of share certificate

Each share certificate issued by the Company must comply with, and be signed as required by, the Business Corporations Act .

2.2 Shareholder Entitled to Certificate or Acknowledgement

Unless the shares are uncertificated shares, each shareholder is entitled, without charge, to (a) one share certificate representing the shares of each class or series of shares registered in the shareholder’s name or (b) a non-transferable written acknowledgement of the shareholder’s right to obtain such a share certificate, provided that in respect of a share held jointly by several persons, the Company is not bound to issue more than one share certificate and delivery of a share certificate for a share to one of several joint shareholders or to one of the shareholders’ duly authorized agents will be sufficient delivery to all.

2.3 Sending of share certificate

Any share certificate to which a shareholder is entitled may be sent to the shareholder by mail and neither the Company nor any agent is liable for any loss to the shareholder because the certificate sent is lost in the mail or stolen.

2.4 Replacement of worn out or defaced certificate

If the directors are satisfied that a share certificate is worn out or defaced, they must, on production to them of the certificate and on such other terms, if any, as they think fit:

(a) order the certificate to be cancelled; and
(b) issue a replacement share certificate.

2.5 Replacement of lost, stolen or destroyed certificate

If a share certificate is lost, stolen or destroyed, a replacement share certificate must be issued to the person entitled to that certificate if the directors receive:

(a) proof satisfactory to them that the certificate is lost, stolen or destroyed; and
(b) any indemnity the directors consider adequate.

2.6 Splitting share certificates

If a shareholder surrenders a share certificate to the Company with a written request that the Company issue in the shareholder’s name two (2) or more certificates, each representing a specified number of shares and in the aggregate representing the same number of shares as the certificate so surrendered, the Company must cancel the surrendered certificate and issue replacement share certificates in accordance with that request.

2.7 Shares may be uncertificated

Notwithstanding any other provisions of this Part, the directors may, by resolution, provide that:

(a) the shares of any or all of the classes and series of the Company’s shares may be uncertificated shares; or
(b) any specified shares may be uncertificated shares.

CW17326221.1

PART 3 – ISSUE OF SHARES

3.1 Directors authorized to issue shares

The directors may, subject to the rights of the holders of the issued shares of the Company, issue, allot, sell, grant options on or otherwise dispose of the unissued shares, and issued shares held by the Company, at the times, to the persons, including directors and officers, in the manner, on the terms and conditions and for the issue prices that the directors, in their absolute discretion, may determine.

3.2 Company need not recognize unregistered interests

Except as required by law or these Articles, the Company need not recognize or provide for any person’s interests in or rights to a share unless that person is the shareholder of the share.

PART 4 – SHARE TRANSFERS

4.1 Recording or registering transfer

A transfer of shares of the Company must not be registered:

(a) unless a duly signed instrument of transfer in respect of the shares has been received by the Company and the certificate (or acceptable documents pursuant to Article 2.5 hereof) representing the shares to be transferred has been surrendered and cancelled; or
(b) if no certificate has been issued by the Company in respect of the shares, unless a duly signed instrument of transfer in respect of the shares has been received by the Company.

4.2 Form of instrument of transfer

The instrument of transfer in respect of any share of the Company must be either in the form, if any, on the back of the Company’s share certificates or in any other form that may be approved by the directors from time to time.

4.3 Signing of instrument of transfer

If a shareholder, or its, his or her duly authorized attorney, signs an instrument of transfer in respect of shares registered in the name of the shareholder, the signed instrument of transfer constitutes a complete and sufficient authority to the Company and its directors, officers and agents to register the number of shares specified in the instrument of transfer, or, if no number is specified, all the shares represented by share certificates deposited with the instrument of transfer:

(a) in the name of the person named as transferee in that instrument of transfer; or
(b) if no person is named as transferee in that instrument of transfer, in the name of the person on whose behalf the share certificate is deposited for the purpose of having the transfer registered.

4.4 Enquiry as to title not required

Neither the Company nor any director, officer or agent of the Company is bound to inquire into the title of the person named in the instrument of transfer as transferee or, if no person is named as transferee in the instrument of transfer, of the person on whose behalf the instrument is deposited for the purpose of having the transfer registered or is liable for any claim related to registering the transfer by the shareholder or by any intermediate owner or holder of the shares, of any interest in the shares, of any share certificate representing such shares or of any written acknowledgment of a right to obtain a share certificate for such shares.

CW17326221.1

4.5 Transfer fee

There must be paid to the Company, in relation to the registration of any transfer, the amount determined by the directors from time to time.

PART 5 – ACQUISITION OF SHARES

5.1 Company authorized to purchase shares

Subject to the special rights and restrictions attached to any class or series of shares, the Company may, if it is authorized to do so by the directors, purchase or otherwise acquire any of its shares.

5.2 Company authorized to accept surrender of shares

The Company may, if it is authorized to do so by the directors, accept a surrender of any of its shares.

5.3 Company authorized to convert fractional shares into whole shares

The Company may, if it is authorized to do so by the directors, convert any of its fractional shares into whole shares in accordance with, and subject to the limitations contained in, the Business Corporations Act .

PART 6 – BORROWING POWERS

6.1 Powers of directors

The directors may from time to time on behalf of the Company:

(a) borrow money in the manner and amount, on the security, from the sources and on the terms and conditions that they consider appropriate;
(b) issue bonds, debentures and other debt obligations either outright or as security for any liability or obligation of the Company or any other person, and at any discount or premium and on such other terms as they consider appropriate;
(c) guarantee the repayment of money by any other person or the performance of any obligation of any other person; and
(d) mortgage or charge, whether by way of specific or floating charge, or give other security on the whole or any part of the present and future assets and undertaking of the Company.

PART 7 – GENERAL MEETINGS

7.1 Annual general meetings

Unless an annual general meeting is deferred or waived in accordance with section 182(2)(a) or (c) of the Business Corporations Act , the Company must hold its first annual general meeting within 18 months after the date on which it was incorporated or otherwise recognized, and after that must hold an annual general meeting at least once in each calendar year and not more than 15 months after the last annual general meeting.

7.2 When annual general meeting is deemed to have been held

If all of the shareholders who are entitled to vote at an annual general meeting consent by a unanimous resolution under the Business Corporations Act to all of the business that is required to be transacted at that annual general meeting, the annual general meeting is deemed to have been held on the date of the unanimous resolution. The shareholders must, in any unanimous resolution passed

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under this Article 7.2, select as the Company’s annual reference date a date that would be appropriate for the holding of the applicable annual general meeting.

7.3 Calling of shareholder meetings

The directors may, whenever they think fit, call a meeting of shareholders.

7.4 Notice for meetings of shareholders

The Company must send notice of the date, time and location of any meeting of shareholders, in the manner provided in these Articles, or in such other manner, if any, as may be prescribed by ordinary resolution (whether previous notice of the resolution has been given or not), to each shareholder entitled to attend the meeting and to each director, unless these Articles otherwise provide, at least the following number of days before the meeting:

(a) if and for so long as the Company is a public company, 21 days;
(b) otherwise, 10 days.

7.5 Record date for notice

The directors may set a date as the record date for the purpose of determining shareholders entitled to notice of any meeting of shareholders. The record date must not precede the date on which the meeting is to be held by more than two months or, in the case of a general meeting requisitioned by shareholders under the Business Corporations Act , by more than four months. The record date must not precede the date on which the meeting is held by fewer than:

(a) if and for so long as the Company is a public company, 21 days;
(b) otherwise, 10 days.

If no record date is set, the record date is 5 p.m. on the day immediately preceding the first date on which the notice is sent or, if no notice is sent, the beginning of the meeting.

7.6 Record date for voting

The directors may set a date as the record date for the purpose of determining shareholders entitled to vote at any meeting of shareholders. The record date must not precede the date on which the meeting is to be held by more than two months or, in the case of a general meeting requisitioned by shareholders under the Business Corporations Act , by more than four months. If no record date is set as provided above, the record date for determining the shareholders entitled to vote at the meeting shall be 5:00 p.m. the day before the meeting.

7.7 Failure to give notice and waiver of notice

The accidental omission to send notice of any meeting to, or the non-receipt of any notice by, any of the persons entitled to notice does not invalidate any proceedings at that meeting. Any person entitled to notice of a meeting of shareholders may, in writing or otherwise, waive or reduce the period of notice of such meeting.

7.8 Notice of special business at meetings of shareholders

If a meeting of shareholders is to consider special business within the meaning of Article 8.1, the notice of meeting must:

(a) state the general nature of the special business; and

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(b) if the special business includes considering, approving, ratifying, adopting or authorizing any document or the signing of or giving of effect to any document, have attached to it a copy of the document or state that a copy of the document will be available for inspection by shareholders:
(i) at the Company’s records office, or at such other reasonably accessible location in British Columbia as is specified in the notice, and
(ii) during statutory business hours on any one or more specified days before the day set for the holding of the meeting.

PART 8 – PROCEEDINGS AT MEETINGS OF SHAREHOLDERS

8.1 Special business

At a meeting of shareholders, the following business is special business:

(a) at a meeting of shareholders that is not an annual general meeting, all business is special business except business relating to the conduct of or voting at the meeting or the election or appointment of directors;
(b) at an annual general meeting, all business is special business except for the following:
(i) business relating to the conduct of or voting at the meeting,
(ii) consideration of any financial statements of the Company presented to the meeting,
(iii) consideration of any reports of the directors or auditor,
(iv) the setting or changing of the number of directors,
(v) the election or appointment of directors,
(vi) the appointment of an auditor,
(vii) the setting of the remuneration of an auditor,
(viii) business arising out of a report of the directors not requiring the passing of a special resolution or an exceptional resolution, and
(ix) any other business which, under these Articles or the Business Corporations Act , may be transacted at a meeting of shareholders without prior notice of the business being given to the shareholders.

8.2 Special resolution

The votes required for the Company to pass a special resolution at a meeting of shareholders is twothirds of the votes cast on the resolution.

8.3 Quorum

Subject to the special rights and restrictions attached to the shares of any affected class or series of shares, the quorum for the transaction of business at a meeting of shareholders is one or more persons, present in person or by proxy.

8.4 Other persons may attend

The directors, the president, if any, the secretary, if any, and any lawyer or auditor for the Company are entitled to attend any meeting of shareholders, but if any of those shareholders do attend a

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meeting of shareholders, that person is not to be counted in the quorum, and is not entitled to vote at the meeting, unless that person is a shareholder or proxy holder entitled to vote at the meeting.

8.5 Requirement of quorum

No business, other than the election of a chair of the meeting and the adjournment of the meeting, may be transacted at any meeting of shareholders unless a quorum of shareholders entitled to vote at the meeting is present at the commencement of the meeting.

8.6 Lack of quorum

If, within 1/2 hour from the time set for the holding of a meeting of shareholders, a quorum is not present:

(a) in the case of a general meeting convened by requisition of shareholders, the meeting is dissolved; and
(b) in the case of any other meeting of shareholders, the shareholders entitled to vote at the meeting who are present, in person or by proxy, at the meeting may adjourn the meeting to a set time and place.

8.7 Chair

The following individual is entitled to preside as chair at a meeting of shareholders:

(a) the chair of the board, if any;
(b) if the chair of the board is absent or unwilling to act as chair of the meeting, the president, if any.

8.8 Alternate chair

At any meeting of shareholders, the directors present must choose one of their number to be chair of the meeting if:

(a) there is no chair of the board or president present within 15 minutes after the time set for holding the meeting;
(b) the chair of the board and the president are unwilling to act as chair of the meeting; or
(c) if the chair of the board and the president have advised the secretary, if any, or any director present at the meeting, that they will not be present at the meeting. If, in any of the foregoing circumstances, all of the directors present decline to accept the position of chair or fail to choose one of their number to be chair of the meeting, or if no director is present, the shareholders present in person or by proxy must choose any person present at the meeting to chair the meeting.

8.9 Adjournments

The chair of a meeting of shareholders may, and if so directed by the meeting must, adjourn the meeting from time to time and from place to place, but no business may be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.

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8.10 Notice of adjourned meeting

It is not necessary to give any notice of an adjourned meeting or of the business to be transacted at an adjourned meeting of shareholders except that, when a meeting is adjourned for 30 days or more, notice of the adjourned meeting must be given as in the case of the original meeting.

8.11 Motion need not be seconded

No motion proposed at a meeting of shareholders need be seconded unless the chair of the meeting rules otherwise, and the chair of any meeting of shareholders is entitled to propose or second a motion.

8.12 Manner of taking a poll

Subject to Article 8.13, if a poll is duly demanded at a meeting of shareholders:

(a) the poll must be taken:
(i) at the meeting, or within 7 days after the date of the meeting, as the chair of the meeting directs, and
(ii) in the manner, at the time and at the place that the chair of the meeting directs;
(b) the result of the poll is deemed to be a resolution of, and passed at, the meeting at which the poll is demanded; and
(c) the demand for the poll may be withdrawn.

8.13 Demand for a poll on adjournment

A poll demanded at a meeting of shareholders on a question of adjournment must be taken immediately at the meeting.

8.14 Demand for a poll not to prevent continuation of meeting

The demand for a poll at a meeting of shareholders does not, unless the chair of the meeting so rules, prevent the continuation of a meeting for the transaction of any business other than the question on which a poll has been demanded.

8.15 Poll not available in respect of election of chair

No poll may be demanded in respect of the vote by which a chair of a meeting of shareholders is elected.

8.16 Casting of votes on poll

On a poll, a shareholder entitled to more than one vote need not cast all the votes in the same way.

8.17 Chair must resolve dispute

In the case of any dispute as to the admission or rejection of a vote given on a poll, the chair of the meeting must determine the same, and his or her determination made in good faith is final and conclusive.

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8.18 Chair has no second vote

In case of an equality of votes, the chair of a meeting of shareholders does not, either on a show of hands or on a poll, have a casting or second vote in addition to the vote or votes to which the chair may be entitled as a shareholder.

8.19 Declaration of result

The chair of a meeting of shareholders must declare to the meeting the decision on every question in accordance with the result of the show of hands or the poll, as the case may be, and that decision must be entered in the minutes of the meeting.

8.20 Meetings by telephone or other communications medium

A shareholder or proxy holder who is entitled to participate in a meeting of shareholders may do so in person, or by telephone or other communications medium, if all shareholders and proxy holders participating in the meeting are able to communicate with each other; provided, however, that nothing in this Section shall obligate the Company to take any action or provide any facility to permit or facilitate the use of any communications medium at a meeting of shareholders. If one or more shareholders or proxy holders participate in a meeting of shareholders in a manner contemplated by this Article 8.20:

(a) each such shareholder or proxy holder shall be deemed to be present at the meeting; and
(b) the meeting shall be deemed to be held at the location specified in the notice of the meeting.

PART 9 – ALTERATIONS AND RESOLUTIONS

9.1 Alteration of Authorized Share Structure

Subject to Article 9.2 and the Business Corporations Act , the Company may by resolution of the directors:

(a) create one or more classes or series of shares or, if none of the shares of a class or series of shares are allotted or issued, eliminate that class or series of shares;
(b) increase, reduce or eliminate the maximum number of shares that the Company is authorized to issue out of any class or series of shares or establish a maximum number of shares that the Company is authorized to issue out of any class or series of shares for which no maximum is established;
(c) if the Company is authorized to issue shares of a class of shares with par value:
(i) decrease the par value of those shares,
(ii) if none of the shares of that class of shares are allotted or issued, increase the par value of those shares,
(iii) subdivide all or any of its unissued or fully paid issued shares with par value into shares of smaller par value, or
(iv) consolidate all or any of its unissued or fully paid issued shares with par value into shares of larger par value;
(d) subdivide or consolidate all or any of its unissued or fully paid issued shares without par value;
(e) change all or any of its unissued or fully paid issued shares with par value into shares without par value or all or any of its unissued shares without par value into shares with par value;

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(f) alter the identifying name of any of its shares; or
(g) otherwise alter its shares or authorized share structure when required or permitted to do so by the Business Corporations Act .

9.2 Change of Name

The Company may by resolution of the directors authorize an alteration to its Notice of Articles in order to change its name or adopt or change any translation of that name.

9.3 Other Alterations or Resolutions

If the Business Corporations Act does not specify:

(a) the type of resolution and these Articles do not specify another type of resolution, the Company may by resolution of the directors authorize any act of the Company, including without limitation, an alteration of these Articles; or
(b) the type of shareholders’ resolution and these Articles do not specify another type of shareholders’ resolution, the Company may by ordinary resolution authorize any act of the Company.

PART 10 – VOTES OF SHAREHOLDERS

10.1 Voting rights

Subject to any special rights or restrictions attached to any shares and to the restrictions imposed on joint registered holders of shares under Article 10.3:

(a) on a vote by show of hands, every person present who is a shareholder or proxy holder and entitled to vote at the meeting has one vote; and
(b) on a poll, every shareholder entitled to vote has one vote in respect of each share held by that shareholder that carries the right to vote on that poll and may exercise that vote either in person or by proxy.

10.2 Trustee of shareholder may vote

A person who is not a shareholder may vote on a resolution at a meeting of shareholders, whether on a show of hands or on a poll, and may appoint a proxy holder to act at the meeting in relation to that resolution, if, before doing so, the person satisfies the chair of the meeting at which the resolution is to be considered, or satisfies all of the directors present at the meeting, that the person is a trustee for a shareholder who is entitled to vote on the resolution.

10.3 Votes by joint shareholders

If there are joint shareholders registered in respect of any share:

(a) any one of the joint shareholders, but not both or all, may vote at any meeting, either personally or by proxy, in respect of the share as if that joint shareholder were solely entitled to it; or
(b) if more than one of the joint shareholders is present at any meeting, personally or by proxy, the joint shareholder present whose name stands first on the central securities register in respect of the share is alone entitled to vote in respect of that share.

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10.4 Trustees as joint shareholders

Two or more trustees of a shareholder in whose sole name any share is registered are, for the purposes of Article 10.3, deemed to be joint shareholders.

10.5 Representative of a corporate shareholder

If a corporation that is not a subsidiary of the Company is a shareholder, that corporation may appoint a person to act as its representative at any meeting of shareholders of the Company, and:

(a) for that purpose, the instrument appointing a representative must
(i) be received at the registered office of the Company or at any other place specified, in the notice calling the meeting, for the receipt of proxies, at least two (2) business days before the day set for the holding of the meeting, or
(ii) unless the notice of the meeting provides otherwise, be provided, at the meeting, to the chair of the meeting; and
(b) if a representative is appointed under this Article 10.5:
(i) the representative is entitled to exercise in respect of and at that meeting the same rights on behalf of the corporation that the representative represents as that corporation could exercise if it were a shareholder who is an individual, including, without limitation, the right to appoint a proxy holder, and
(ii) the representative, if present at the meeting, is to be counted for the purpose of forming a quorum and is deemed to be a shareholder present in person at the meeting.

10.6 When proxy provisions do not apply

Articles 10.7 to 10.13 do not apply to the Company if and for so long as it is a public company.

10.7 Appointment of proxy holder

Every shareholder of the Company, including a corporation that is a shareholder but not a subsidiary of the Company, entitled to vote at a meeting of shareholders of the Company may, by proxy, appoint a proxy holder to attend and act at the meeting in the manner, to the extent and with the powers conferred by the proxy.

10.8 Alternate proxy holders

A shareholder may appoint one or more alternate proxy holders to act in the place of an absent proxy holder.

10.9 When proxy holder need not be shareholder

A person must not be appointed as a proxy holder unless the person is a shareholder, although a person who is not a shareholder may be appointed as a proxy holder if:

(a) the person appointing the proxy holder is a corporation or a representative of a corporation appointed under Article 10.5;
(b) the Company has at the time of the meeting for which the proxy holder is to be appointed only one shareholder entitled to vote at the meeting; or

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(c) the shareholders present in person or by proxy at and entitled to vote at the meeting for which the proxy holder is to be appointed, by a resolution on which the proxy holder is not entitled to vote but in respect of which the proxy holder is to be counted in the quorum, permit the proxy holder to attend and vote at the meeting.

10.10 Form of proxy

A proxy, whether for a specified meeting or otherwise, must be either in the following form or in any other form approved by the directors or the chair of the meeting:

(Name of Company)

The undersigned, being a shareholder of the above named Company, hereby appoints ....................................... or, failing that person, ......................................., as proxy

holder for the undersigned to attend, act and vote for and on behalf of the undersigned at the meeting of shareholders to be held on the day of and at any adjournment of that meeting.

Signed this .......... day of .............................................., .................

...............................................................

Signature of shareholder

10.11 Provision of proxies

A proxy for a meeting of shareholders must:

(a) be received at the registered office of the Company or at any other place specified in the notice calling the meeting for the receipt of proxies, at least the number of business days specified in the notice or, if no number of days is specified, two (2) business days before the day set for the holding of the meeting; or
(b) unless the notice of the meeting provides otherwise, be provided at the meeting to the chair of the meeting.

10.12 Revocation of proxies

Subject to Article 10.13, every proxy may be revoked by an instrument in writing that is:

(a) received at the registered office of the Company at any time up to and including the last business day before the day set for the holding of the meeting at which the proxy is to be used; or
(b) provided at the meeting to the chair of the meeting.

10.13 Revocation of proxies must be signed

An instrument referred to in Article 10.12 must be signed as follows:

(a) if the shareholder for whom the proxy holder is appointed is an individual, the instrument must be signed by the shareholder or his or her trustee; or
(b) if the shareholder for whom the proxy holder is appointed is a corporation, the instrument must be signed by the corporation or by a representative appointed for the corporation under Article 10.5.

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10.14 Validity of proxy votes

A vote given in accordance with the terms of a proxy is valid despite the death or incapacity of the shareholder giving the proxy and despite the revocation of the proxy or the revocation of the authority under which the proxy is given, unless notice in writing of that death, incapacity or revocation is received:

(a) at the registered office of the Company, at any time up to and including the last business day before the day set for the holding of the meeting at which the proxy is to be used; or
(b) by the chair of the meeting, before the vote is taken.

10.15 Production of evidence of authority to vote

The chair of any meeting of shareholders may, but need not, inquire into the authority of any person to vote at the meeting and may, but need not, demand from that person production of evidence as to the existence of the authority to vote.

10.16 Chair May Determine Validity of Proxy

Unless prohibited by applicable law, the chair of any meeting of shareholders may determine whether or not a proxy deposited for use at the meeting, which may not strictly comply with the requirements of this Article 10 as to form, execution, accompanying documentation, time of filing or otherwise, shall be valid for use at the meeting and any such determination made in good faith shall be final, conclusive and binding upon the meeting.

PART 11 – DIRECTORS

11.1 First directors; number of directors

The first directors are the persons designated as directors of the Company in the Notice of Articles that applies to the Company when it is recognized under the Business Corporations Act . The number of directors, excluding additional directors appointed under Article 12.7, is set at:

(a) subject to paragraphs (b) and (c), the number of directors that is equal to the number of the Company’s first directors;
(b) if the Company is a public company, the greater of three and the number most recently elected by ordinary resolution (whether or not previous notice of the resolution was given); and
(c) if the Company is not a public company, the number most recently elected by ordinary resolution (whether or not previous notice of the resolution was given).

11.2 Change in number of directors

If the number of directors is set under Articles 11.1(b) or 11.1(c):

(a) the shareholders may elect or appoint the directors needed to fill any vacancies in the board of directors up to that number;
(b) if, contemporaneously with setting that number, the shareholders do not elect or appoint the directors needed to fill vacancies in the board of directors up to that number, then the directors may appoint, or the shareholders may elect or appoint, directors to fill those vacancies.

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11.3 Directors’ acts valid despite vacancy

An act or proceeding of the directors is not invalid merely because fewer directors have been appointed or elected than the number of directors set or otherwise required under these Articles.

11.4 Qualifications of directors

A director is not required to hold a share in the capital of the Company as qualification for his or her office but must be qualified as required by the Business Corporations Act to become, act or continue to act as a director.

11.5 Remuneration of directors

The directors are entitled to the remuneration, if any, for acting as directors as the directors may from time to time determine. If the directors so decide, the remuneration of the directors will be determined by the shareholders. That remuneration may be in addition to any salary or other remuneration paid to a director in such director’s capacity as an officer or employee of the Company.

11.6 Reimbursement of expenses of directors

The Company must reimburse each director for the reasonable expenses that he or she may incur in and about the business of the Company.

11.7 Special remuneration for directors

If any director performs any professional or other services for the Company that in the opinion of the directors are outside the ordinary duties of a director, or if any director is otherwise specially occupied in or about the Company’s business, he or she may be paid remuneration fixed by the directors, or, at the option of that director, fixed by ordinary resolution, and such remuneration may be either in addition to, or in substitution for, any other remuneration that he or she may be entitled to receive.

11.8 Gratuity, pension or allowance on retirement of director

Unless otherwise determined by ordinary resolution, the directors on behalf of the Company may pay a gratuity or pension or allowance on retirement to any director who has held any salaried office or place of profit with the Company or to his or her spouse or dependants and may make contributions to any fund and pay premiums for the purchase or provision of any such gratuity, pension or allowance.

PART 12 – ELECTION AND REMOVAL OF DIRECTORS

12.1 Election at annual general meeting

At every annual general meeting and in every unanimous resolution contemplated by Article 7.2:

(a) the shareholders entitled to vote at the annual general meeting for the election of directors may elect, or in the unanimous resolution appoint, a board of directors consisting of up to the number of directors for the time being set under these Articles; and
(b) all the directors cease to hold office immediately before the election or appointment of directors under paragraph (a), but are eligible for re-election or re-appointment.

12.2 Consent to be a director

No election, appointment or designation of an individual as a director is valid unless:

(a) that individual consents to be a director in the manner provided for in the Business Corporations Act ;

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(b) that individual is elected or appointed at a meeting at which the individual is present and the individual does not refuse, at the meeting, to be a director; or
(c) with respect to first directors, the designation is otherwise valid under the Business Corporations Act .

12.3 Failure to elect or appoint directors

If:

(a) the Company fails to hold an annual general meeting, and all the shareholders who are entitled to vote at an annual general meeting fail to pass the unanimous resolution contemplated by Article 7.2, on or before the date by which the annual general meeting is required to be held under the Business Corporations Act ; or
(b) the shareholders fail, at the annual general meeting or in the unanimous resolution contemplated by Article 7.2, to elect or appoint any directors;

then each director in office at such time continues to hold office until the earlier of:

(c) the date on which his or her successor is elected or appointed; and
(d) the date on which he or she otherwise ceases to hold office under the Business Corporations Act or these Articles.

12.4 Directors may fill casual vacancies

Any casual vacancy occurring in the board of directors may be filled by the remaining directors.

12.5 Remaining directors’ power to act

The directors may act notwithstanding any vacancy in the board of directors, but if the Company has fewer directors in office than the number set pursuant to these Articles as the quorum of directors, the directors may only act for the purpose of appointing directors up to that number or for the purpose of summoning a meeting of shareholders to fill any vacancies on the board of directors or for any other purpose permitted by the Business Corporations Act .

12.6 Shareholders may fill vacancies

If the Company has no directors or fewer directors in office than the number set pursuant to these Articles as the quorum of directors, and the directors have not filled the vacancies pursuant to Article 12.5 above, the shareholders may elect or appoint directors to fill any vacancies on the board of directors.

12.7 Additional directors

Notwithstanding Articles 11.1 and 11.2, between annual general meetings or unanimous resolutions contemplated by Article 7.2, the directors may appoint one or more additional directors, but the number of additional directors appointed under this Article 12.7 must not at any time exceed:

(a) one-third of the number of first directors, if, at the time of the appointments, one or more of the first directors have not yet completed their first term of office; or
(b) in any other case, one-third of the number of the current directors who were elected or appointed as directors other than under this Article 12.7.

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Any director so appointed ceases to hold office immediately before the next election or appointment of directors under Article 12.1(a), but is eligible for re-election or re-appointment.

12.8 Ceasing to be a director

A director ceases to be a director when:

(a) the term of office of the director expires;
(b) the director dies;
(c) the director resigns as a director by notice in writing provided to the Company or a lawyer for the Company; or
(d) the director is removed from office pursuant to Articles 12.9 or 12.10.

12.9 Removal of director by shareholders

The Shareholders may, by special resolution, remove any director before the expiration of his or her term of office, and may, by ordinary resolution, elect or appoint a director to fill the resulting vacancy. If the shareholders do not contemporaneously elect or appoint a director to fill the vacancy created by the removal of a director, then the directors may appoint, or the shareholders may elect or appoint by ordinary resolution, a director to fill that vacancy.

12.10 Removal of director by directors

The directors may remove any director before the expiration of his or her term of office if the director is convicted of an indictable offence, or if the director ceases to be qualified to act as a director of a company and does not promptly resign, and the directors may appoint a director to fill the resulting vacancy.

12.11 Nominations of directors

(a) Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Company.
(b) Nominations of persons for election to the board may be made at any annual meeting of shareholders or at any special meeting of shareholders (if one of the purposes for which the special meeting was called was the election of directors):
(i) by or at the direction of the board, including pursuant to a notice of meeting,
(ii) by or at the direction or request of one or more shareholders pursuant to a proposal made in accordance with the provisions of the Business Corporations Act , or a requisition of the shareholders made in accordance with the provisions of the Business Corporations Act , or
(iii) by any person (a “ Nominating Shareholder ”): (A) who, at the close of business on the date of the giving of the notice provided for below in this Article 12.11 and on the record date for notice of such meeting, is entered in the securities register as a holder of one or more shares carrying the right to vote at such meeting or who beneficially owns shares that are entitled to be voted at such meeting; and (B) who complies with the notice procedures set forth below in this Article 12.11.
(c) In addition to any other applicable requirements, for a nomination to be made by a Nominating Shareholder, the Nominating Shareholder must have given timely notice thereof

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(as provided for in Article 12.11(d)) in proper written form to the secretary of the Company at the principal executive offices of the Company.

(d) To be timely, a Nominating Shareholder’s notice to the secretary of the Company must be given:
(i) in the case of an annual meeting of shareholders, not less than 30 nor more than 65 days prior to the date of the annual meeting of shareholders; provided, however, that in the event that the annual meeting of shareholders is to be held on a date that is less than 50 days after the date (the “ Notice Date” ) on which the first public announcement (as defined below) of the date of the annual meeting was made, notice by the Nominating Shareholder may be given not later than the close of business on the tenth (10th) day after the Notice Date in respect of such meeting; and
(ii) in the case of a special meeting (which is not also an annual meeting) of shareholders called for the purpose of electing directors (whether or not called for other purposes), not later than the close of business on the fifteenth (15th) day following the day on which the first public announcement of the date of the special meeting of shareholders was made.

In no event shall any adjournment or postponement of a meeting of shareholders or the announcement thereof commence a new time period for the giving of a Nominating Shareholder’s notice as described above.

(e) To be in proper written form, a Nominating Shareholder’s notice to the secretary of the Company must set forth:
(i) as to each person whom the Nominating Shareholder proposes to nominate for election as a director: (A) the name, age, business address and residential address of the person; (B) the principal occupation or employment of the person during the past five years; (C) the class or series and number of shares in the capital of the Company which are controlled or which are owned beneficially or of record by the person as of the record date for the meeting of shareholders (if such date shall then have been made publicly available and shall have occurred) and as of the date of such notice; (D) a statement as to whether such person would be “independent” of the Company (as such term is defined under Applicable Securities Laws (as defined below)) if elected as a director at such meeting and the reasons and basis for such determination; (E) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such Nominating Shareholder and beneficial owner, if any, and their respective affiliates and associates, or others acting jointly or in concert therewith, on the one hand, and such nominee, and his or her respective associates, or others acting jointly or in concert therewith, on the other hand; and (F) any other information relating to the person that would be required to be disclosed in a dissident’s proxy circular in connection with solicitations of proxies for election of directors pursuant to the Business Corporations Act and Applicable Securities Laws (as defined below); and
(ii) as to the Nominating Shareholder giving the notice: (A) any proxy, contract, arrangement, understanding or relationship pursuant to which such Nominating Shareholder has a right to vote any shares of the Company; (B) the class or series and number of shares in the capital of the Company which are controlled or which are owned beneficially or of the record by the Nominating Shareholder as of the record

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date for the meeting of shareholders (if such date shall then have been made publicly available and shall have occurred) and as of the date of such notice, and (C) any other information relating to such Nominating Shareholder that would be required to be made in a dissident’s proxy circular in connection with solicitations of proxies for election of directors pursuant to the Business Corporations Act and Applicable Securities Laws (as defined below).

(f) The Company may require any proposed nominee to furnish such other information as may reasonably be required by the Company to determine the eligibility of such proposed nominee to serve as an independent director of the Company or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such proposed nominee.
(g) The chair of the meeting shall have the power and duty to determine whether a nomination was made in accordance with the provisions set forth in this Article 12.11 and, if any proposed nomination is not in compliance with such provisions, to declare that such defective nomination shall be disregarded.
(h) For purposes of this Article 12.11:
(i) “ Affiliate ”, when used to indicate a relationship with a person, means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such specified person;
(ii) “ Applicable Securities Laws ” means the applicable securities legislation of each relevant province and territory of Canada, as amended from time to time, the rules, regulations and forms made or promulgated under any such statute and the published national instruments, multilateral instruments, policies, bulletins and notices of the securities commission and similar regulatory authority of each province and territory of Canada;
(iii) “ Associate ”, when used to indicate a relationship with a specified person, means:
- A. any corporation or trust of which such person beneficially owns, directly or indirectly, voting securities carrying more than 10% of the voting rights attached to all voting securities of such corporation or trust for the time being outstanding,
- B. any partner of that person,
- C. any trust or estate in which such person has a substantial beneficial interest or as to which such person serves as trustee or in a similar capacity,
- D. a spouse of such specified person,
- E. any person of either sex with whom such specified person is living in a conjugal relationship outside marriage, or
- F. any relative of such specified person or of a person mentioned in clauses D or E of this definition if that relative has the same residence as the specified person;
(iv) “ Derivatives Contract ” means a contract between two parties (the “ Receiving Party ” and the “ Counterparty ”) that is designed to expose the Receiving Party to economic benefits and risks that correspond substantially to the ownership by the Receiving Party of a number of shares in the capital of the Company or securities convertible

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into such shares specified or referenced in such contract (the number corresponding to such economic benefits and risks, the “ Notional Securities ”), regardless of whether obligations under such contract are required or permitted to be settled through the delivery of cash, shares in the capital of the Company or securities convertible into such shares or other property, without regard to any short position under the same or any other Derivatives Contract. For the avoidance of doubt, interests in broadbased index options, broad-based index futures and broad-based publicly traded market baskets of stocks approved for trading by the appropriate governmental authority shall not be deemed to be Derivatives Contracts;

(v) “ owned beneficially ” or “ owns beneficially ” means, in connection with the ownership of shares in the capital of the Company by a person:
A. any such shares as to which such person or any of such person’s Affiliates or Associates owns at law or in equity, or has the right to acquire or become the owner at law or in equity, where such right is exercisable immediately or after the passage of time and whether or not on condition or the happening of any contingency or the making of any payment, upon the exercise of any conversion right, exchange right or purchase right attaching to any securities, or pursuant to any agreement, arrangement, pledge or understanding whether or not in writing,
B. any such shares as to which such person or any of such person’s Affiliates or Associates has the right to vote, or the right to direct the voting, where such right is exercisable immediately or after the passage of time and whether or not on condition or the happening of any contingency or the making of any payment, pursuant to any agreement, arrangement, pledge or understanding whether or not in writing,
C. any such shares which are beneficially owned, directly or indirectly, by a Counterparty (or any of such Counterparty’s Affiliates or Associates) under any Derivatives Contract (without regard to any short or similar position under the same or any other Derivatives Contract) to which such person or any of such person’s Affiliates or Associates is a Receiving Party; provided, however, that the number of shares that a person owns beneficially pursuant to this clause in connection with a particular Derivatives Contract shall not exceed the number of Notional Securities with respect to such Derivatives Contract; provided, further, that the number of securities owned beneficially by each Counterparty (including their respective Affiliates and Associates) under a Derivatives Contract shall for purposes of this clause be deemed to include all securities that are owned beneficially, directly or indirectly, by any other Counterparty (or any of such other Counterparty’s Affiliates or Associates) under any Derivatives Contract to which such first Counterparty (or any of such first Counterparty’s Affiliates or Associates) is a Receiving Party and this proviso shall be applied to successive Counterparties as appropriate, and
D. any such shares which are owned beneficially within the meaning of this definition by any other person with whom such person is acting jointly or in concert with respect to the Company or any of its securities, and
(vi) “ public announcement ” shall mean disclosure in a press release reported by a national news service in Canada, or in a document publicly filed by the Company under its profile on the System of Electronic Document Analysis and Retrieval at www.sedar.com.

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(i) Notwithstanding any other provision of this Article 12.11, notice given to the secretary of the Company pursuant to this Article 12.11 may only be given by personal delivery, facsimile transmission or by email (at such email address as stipulated from time to time by the secretary of the Company for purposes of this notice), and shall be deemed to have been given and made only at the time it is served by personal delivery, email (at the address as aforesaid, provided that receipt of confirmation of such transmission has been received) or sent by facsimile transmission (provided that receipt of confirmation of such transmission has been received) to the secretary at the address of the principal executive offices of the Company; provided that if such delivery or electronic communication is made on a day which is a not a business day or later than 5:00 p.m. (Vancouver time) on a day which is a business day, then such delivery or electronic communication shall be deemed to have been made on the subsequent day that is a business day.
(j) Notwithstanding the foregoing, the board may, in its sole discretion, waive any requirement in this Article 12.11.

PART 13 – PROCEEDINGS OF DIRECTORS

13.1 Meetings of directors

The directors may meet together for the conduct of business, adjourn and otherwise regulate their meetings as they think fit, and meetings of the board held at regular intervals may be held at the place and at the time that the board may by resolution from time to time determine.

13.2 Chair of meetings

Meetings of directors are to be chaired by:

(a) the chair of the board, if any;
(b) in the absence of the chair of the board, the president, if any, if the president is a director; or
(c) any other director chosen by the directors if:
(i) neither the chair of the board nor the president, if a director, is present at the meeting within 15 minutes after the time set for holding the meeting,
(ii) neither the chair of the board nor the president, if a director, is willing to chair the meeting, or
(iii) the chair of the board and the president, if a director, have advised the secretary, if any, or any other director, that they will not be present at the meeting.

13.3 Voting at meetings

Questions arising at any meeting of directors are to be decided by a majority of votes and, in the case of an equality of votes, the chair of the meeting does not have a second or casting vote.

13.4 Meetings by telephone or other communications medium

A director may participate in a meeting of the directors or of any committee of the directors in person, or by telephone or other communications medium, if all directors participating in the meeting are able to communicate with each other. A director who participates in a meeting in a manner contemplated by this Article 13.4 is deemed for all purposes of the Business Corporations Act and these Articles to be present at the meeting and to have agreed to participate in that manner .

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13.5 Who may call extraordinary meetings

A director may call a meeting of the board at any time. The secretary, if any, must on request of a director, call a meeting of the board.

13.6 Notice of extraordinary meetings

Subject to Articles 13.7 and 13.8, if a meeting of the board is called under Article 13.5, reasonable notice of that meeting, specifying the place, date and time of that meeting, must be given to each of the directors:

(a) by mail addressed to the director’s address as it appears on the books of the Company or to any other address provided to the Company by the director for this purpose;
(b) by leaving it at the director’s prescribed address or at any other address provided to the Company by the director for this purpose; or
(c) orally, by delivery of written notice or by telephone, voice mail, e-mail, fax or any other method of legibly transmitting messages.

13.7 When notice not required

It is not necessary to give notice of a meeting of the directors to a director if:

(a) the meeting is to be held immediately following a meeting of shareholders at which that director was elected or appointed or is the meeting of the directors at which that director is appointed;
(b) the director has filed a waiver under Article 13.9; or
(c) the director attends such meeting.

13.8 Meeting valid despite failure to give notice

The accidental omission to give notice of any meeting of directors to any director, or the non-receipt of any notice by any director, does not invalidate any proceedings at that meeting.

13.9 Waiver of notice of meetings

Any director may file with the Company a notice waiving notice of any past, present or future meeting of the directors and may at any time withdraw that waiver with respect to meetings of the directors held after that withdrawal.

13.10 Effect of waiver

After a director files a waiver under Article 13.9 with respect to future meetings of the directors, and until that waiver is withdrawn, notice of any meeting of the directors need not be given to that director unless the director otherwise requires in writing to the Company.

13.11 Quorum

The quorum necessary for the transaction of the business of the directors may be set by the directors and, if not so set, is a majority of the directors.

13.12 If only one director

If, in accordance with Article 11.1, the number of directors is one, the quorum necessary for the transaction of the business of the directors is one director, and that director may constitute a meeting.

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PART 14 – COMMITTEES OF DIRECTORS

14.1 Appointment of committees

The directors may, by resolution:

(a) appoint one or more committees consisting of the director or directors that they consider appropriate;
(b) delegate to a committee appointed under paragraph (a) any of the directors’ powers, except:
(i) the power to fill vacancies in the board,
(ii) the power to change the membership of, or fill vacancies in, any committee of the board, and
(iii) the power to appoint or remove officers appointed by the board; and
(c) make any delegation referred to in paragraph (b) subject to the conditions set out in the resolution.

14.2 Obligations of committee

Any committee formed under Article 14.1, in the exercise of the powers delegated to it, must:

(a) conform to any rules that may from time to time be imposed on it by the directors; and
(b) report every act or thing done in exercise of those powers to the earliest meeting of the directors to be held after the act or thing has been done.

14.3 Powers of board

The board may, at any time:

(a) revoke the authority given to a committee, or override a decision made by a committee, except as to acts done before such revocation or overriding;
(b) terminate the appointment of, or change the membership of, a committee; and
(c) fill vacancies in a committee.

14.4 Committee meetings

Subject to Article 14.2(a):

(a) the members of a directors’ committee may meet and adjourn as they think proper;
(b) a directors’ committee may elect a chair of its meetings but, if no chair of the meeting is elected, or if at any meeting the chair of the meeting is not present within 15 minutes after the time set for holding the meeting, the directors present who are members of the committee may choose one of their number to chair the meeting;
(c) a majority of the members of a directors’ committee constitutes a quorum of the committee; and
(d) questions arising at any meeting of a directors’ committee are determined by a majority of votes of the members present, and in case of an equality of votes, the chair of the meeting has no second or casting vote.

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PART 15 – OFFICERS

15.1 Appointment of officers

The board may, from time to time, appoint a president, secretary or any other officers that it considers necessary or desirable, and none of the individuals appointed as officers need be a member of the board.

15.2 Functions, duties and powers of officers

The board may, for each officer:

(a) determine the functions and duties the officer is to perform;
(b) entrust to and confer on the officer any of the powers exercisable by the directors on such terms and conditions and with such restrictions as the directors think fit; and
(c) from time to time revoke, withdraw, alter or vary all or any of the functions, duties and powers of the officer.

15.3 Remuneration

All appointments of officers are to be made on the terms and conditions and at the remuneration (whether by way of salary, fee, commission, participation in profits or otherwise) that the board thinks fit and are subject to termination at the pleasure of the board.

PART 16 – CERTAIN PERMITTED ACTIVITIES OF DIRECTORS

16.1 Other office of director

A director may hold any office or place of profit with the Company (other than the office of auditor of the Company) in addition to his or her office of director for the period and on the terms (as to remuneration or otherwise) that the directors may determine.

16.2 No disqualification

No director or intended director is disqualified by his or her office from contracting with the Company either with regard to the holding of any office or place of profit the director holds with the Company or as vendor, purchaser or otherwise.

16.3 Professional services by director or officer

Subject to compliance with the provisions of the Business Corporations Act , a director or officer of the Company, or any corporation or firm in which that individual has an interest, may act in a professional capacity for the Company, except as auditor of the Company, and the director or officer or such corporation or firm is entitled to remuneration for professional services as if that individual were not a director or officer.

16.4 Remuneration and benefits received from certain entities

A director or officer may be or become a director, officer or employee of, or may otherwise be or become interested in, any corporation, firm or entity in which the Company may be interested as a shareholder or otherwise, and, subject to compliance with the provisions of the Business Corporations Act , the director or officer is not accountable to the Company for any remuneration or other benefits received by him or her as director, officer or employee of, or from his or her interest in, such other corporation, firm or entity.

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PART 17 – INDEMNIFICATION

17.1 Indemnification of directors

The directors must cause the Company to indemnify its directors and former directors, and their respective heirs and personal or other legal representatives to the greatest extent permitted by Division 5 of Part 5 of the Business Corporations Act .

17.2 Deemed contract

Each director is deemed to have contracted with the Company on the terms of the indemnity referred to in Article 17.1.

PART 18 – AUDITOR

18.1 Remuneration of an auditor

The directors may set the remuneration of the auditor of the Company without the prior approval of the shareholders.

18.2 Waiver of appointment of an auditor

The Company shall not be required to appoint an auditor if all of the shareholders of the Company, whether or not their shares otherwise carry the right to vote, resolve by a unanimous resolution to waive the appointment of an auditor. Such waiver may be given before, on or after the date on which an auditor is required to be appointed under the Business Corporations Act , and is effective for one financial year only.

PART 19 – DIVIDENDS

19.1 Declaration of dividends

Subject to the rights, if any, of shareholders holding shares with special rights as to dividends, the directors may from time to time declare and authorize payment of any dividends the directors consider appropriate.

19.2 No notice required

The directors need not give notice to any shareholder of any declaration under Article 19.1.

19.3 Directors may determine when dividend payable

Any dividend declared by the directors may be made payable on such date as is fixed by the directors.

19.4 Dividends to be paid in accordance with number of shares

Subject to the rights of shareholders, if any, holding shares with special rights as to dividends, all dividends on shares of any class or series of shares must be declared and paid according to the number of such shares held.

19.5 Manner of paying dividend

A resolution declaring a dividend may direct payment of the dividend wholly or partly by the distribution of specific assets or of paid up shares or fractional shares, bonds, debentures or other debt obligations of the Company, or in any one or more of those ways, and, if any difficulty arises in regard to the distribution, the directors may settle the difficulty as they consider expedient, and, in particular, may set the value for distribution of specific assets.

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19.6 Dividend bears no interest

No dividend bears interest against the Company.

19.7 Fractional dividends

If a dividend to which a shareholder is entitled includes a fraction of the smallest monetary unit of the currency of the dividend, that fraction may be disregarded in making payment of the dividend and that payment represents full payment of the dividend.

19.8 Payment of dividends

Any dividend or other distribution payable in cash in respect of shares may be paid by cheque, made payable to the order of the person to whom it is sent, and mailed:

(a) subject to paragraphs (b) and (c), to the address of the shareholder;
(b) subject to paragraph (c), in the case of joint shareholders, to the address of the joint shareholder whose name stands first on the central securities register in respect of the shares; or
(c) to the person and to the address as the shareholder or joint shareholders may direct in writing.

19.9 Receipt by joint shareholders

If several persons are joint shareholders of any share, any one of them may give an effective receipt for any dividend, bonus or other money payable in respect of the share.

PART 20 – ACCOUNTING RECORDS

20.1 Recording of financial affairs

The board must cause adequate accounting records to be kept to record properly the financial affairs and condition of the Company and to comply with the provisions of the Business Corporations Act .

PART 21 – EXECUTION OF INSTRUMENTS

21.1 Who may attest seal

The Company’s seal, if any, must not be impressed on any record except when that impression is attested by the signature or signatures of:

(a) any two (2) directors;
(b) any officer, together with any director;
(c) if the Company has only one director, that director; or
(d) any one or more directors or officers or persons as may be determined by resolution of the directors.

21.2 Sealing copies

For the purpose of certifying under seal a true copy of any resolution or other document, the seal must be impressed on that copy and, despite Article 21.1, may be attested by the signature of any director or officer.

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21.3 Execution of documents not under seal

Any instrument, document or agreement for which the seal need not be affixed may be executed for and on behalf of and in the name of the Company by any one director or officer of the Company, or by any other person appointed by the directors for such purpose.

PART 22 – NOTICES

22.1 Method of giving notice

Unless the Business Corporations Act or these Articles provides otherwise, a notice, statement, report or other record required or permitted by the Business Corporations Act or these Articles to be sent by or to a person may be sent by any one of the following methods:

(a) mail addressed to the person at the applicable address for that person as follows:
(i) for a record mailed to a shareholder, the shareholder’s registered address,
(ii) for a record mailed to a director or officer, the prescribed address for mailing shown for the director or officer in the records kept by the Company or the mailing address provided by the recipient for the sending of that record or records of that class, or
(iii) in any other case, the mailing address of the intended recipient;
(b) delivery at the applicable address for that person as follows, addressed to the person:
(i) for a record delivered to a shareholder, the shareholder’s registered address,
(ii) for a record delivered to a director or officer, the prescribed address for delivery shown for the director or officer in the records kept by the Company or the delivery address provided by the recipient for the sending of that record or records of that class,
(iii) in any other case, the delivery address of the intended recipient;
(c) sending the record by fax to the fax number provided by the intended recipient for the sending of that record or records of that class;
(d) sending the record by email to the email address provided by the intended recipient for the sending of that record or records of that class;
(e) physical delivery to the intended recipient; or
(f) such other manner of delivery as is permitted by applicable legislation governing electronic delivery.

22.2 Deemed receipt of mailing

A record that is mailed to a person by ordinary mail to the applicable address for that person referred to in Article 22.1 is deemed to be received by the person to whom it was mailed on the day, Saturdays, Sundays and holidays excepted, following the date of mailing.

22.3 Certificate of sending

A certificate signed by the secretary, if any, or other officer of the Company or of any other corporation acting in that behalf for the Company stating that a notice, statement, report or other record was addressed as required by Article 22.1, prepaid and mailed or otherwise sent as permitted by Article 22.1 is conclusive evidence of that fact.

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22.4 Notice to joint shareholders

A notice, statement, report or other record may be provided by the Company to the joint registered shareholders of a share by providing the notice to the joint registered shareholder first named in the central securities register in respect of the share.

22.5 Notice to trustees

A notice, statement, report or other record may be provided by the Company to the persons entitled to a share in consequence of the death, bankruptcy or incapacity of a shareholder by:

(a) mailing the record, addressed to them:
(i) by name, by the title of the legal personal representative of the deceased or incapacitated shareholder, by the title of trustee of the bankrupt shareholder or by any similar description, and
(ii) at the address, if any, supplied to the Company for that purpose by the persons claiming to be so entitled; or
(b) if an address referred to in Article 22.5(a)(ii) has not been supplied to the Company, by giving the notice in a manner in which it might have been given if the death, bankruptcy or incapacity had not occurred.

PART 23 – RESTRICTION ON SHARE TRANSFER

23.1 Application

Article 23.2 does not apply to the Company if and for so long as it is a public company.

23.2 Consent required for transfer

No shares may be sold, transferred or otherwise disposed of without the consent of the directors and the directors are not required to give any reason for refusing to consent to any such sale, transfer or other disposition.

	Full Name and Signature of Director	Date of Signing
	MARCELLO LEONE	____, 2021

CW17326221.1

SCHEDULE “I”

AMALGAMATION APPLICATION

CW17369373.1

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Telephone: 1 877 526-1526 www.bcreg.ca

Mailing Address: PO Box 9431 Stn Prov Govt Victoria BC V8W 9V3

�ourier Address: 200 – 940 Blanshard Street Victoria BC V8W 3E6

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�� �� When the amalgamation is complete, your company will be a BC limited company.

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(Check all applicable boxes.)

✔ ��

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� �� Choose �� of the following:

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Embark Health Inc.

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Please note: If you want the name of an amalgamating corporation that is a foreign corporation, you must obtain a name approval before completing this amalgamation application.

�� �� Please indicate the statement applicable to this amalgamation.

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�� �� �� Marcello Leone	�� �� X	�� ��
�� �� �� Bruce Dawson-Scully	�� �� X	�� ��
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Embark Health Inc.

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Common	✔		✔			✔

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SCHEDULE “J”

BEVCANNA RESOLUTION

CW17369373.1

BE IT RESOLVED THAT, as a special resolution of the shareholders of the Company:

the authorized share capital of the Company be altered by the creation of an unlimited number of Preferred Shares without par value, issuable in series;
there be created and attached to the Common shares and Preferred Shares the special rights and restrictions set out in Part 24 of the articles of the Company as adopted by paragraph 3 of these resolutions;
the articles of the Company be altered by deleting and cancelling the existing Part 24 thereof and by creating and adopting as Part 24 of the articles of the Company the Part 24 attached hereto as Appendix “A”;
the notice of articles and articles of the Company be amended to reflect the above changes;
the amendment to the notice of articles and articles of the Company will take effect immediately after the alteration of the notice of articles of the Company is filed with the British Columbia Registrar of Companies; and
any director or officer of the Company is hereby authorized to execute and deliver the amended notice of articles and amended articles of the corporation and to execute, whether under corporate seal or otherwise, and deliver all such other documents and to do all such acts and things that such director or officer may, in his or her sole discretion, deem to be necessary or desirable to give effect to the foregoing.”

Appendix A:

Part 24 - Special Rights and Restrictions

24.1 Definitions

(a) “ Common Shares ” means the common shares in the capital of the Company; and

(b) “ Preferred Shares ” means the Preferred shares in the capital of the Company, issuable in series.

24.2 Common Shares

(a) General. The voting, dividend and liquidation rights of the holders of Common Shares are subject to and qualified by the rights, powers and preferences of the holders of Preferred Shares.

(b) Voting. The holders of Common Shares are entitled to one vote for each Common Share held at all meetings of shareholders (and written actions in lieu of meetings).

(c) Dividends. The holders of Common Shares are entitled, subject to the rights, privileges, restrictions and conditions attaching to any other class or series of shares of the Company, to receive dividends if, as and when declared by the board of directors of the Company.

(d) Liquidation, Dissolution or Winding-Up. The holders of the Common Shares are entitled, subject to the rights, privileges, restrictions and conditions attaching to any other class or series of shares of the

Company, to receive the remaining property of the Company on a liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary.

24.3 Preferred shares issuable in series

The Preferred Shares may include one or more series and, subject to the Business Corporations Act , the directors may, by resolution, if none of the shares of that particular series are issued, alter the Articles of the Company and authorize the alteration of the Notice of Articles of the Company, as the case may be, to do one or more of the following:

(a) create a series of the shares;

(b) create an identifying name for the shares of that series, or alter any such identifying name;

(c) determine the maximum number of shares of that series that the Company is authorized to issue, determine that there is no such maximum number, or alter any such determination; and

(d) attach special rights or restrictions to the shares of that series, or alter any such special rights or restrictions.

SCHEDULE “K”

CONTINUATION APPLICATION

CW17369373.1

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Telephone: 1 877 526-1526 www.bcreg.ca

Mailing Address: PO Box 9431 Stn Prov Govt �ourier Address: 200 – 940 Blanshard Street Victoria BC V8W 9V3 Victoria BC V8W 3E6

DO NOT MAIL THIS FORM to BC Registry Services unless you are instructed to do so by registry staff. The Regulation under the Business Corporations Act requires the electronic version of this form to be filed on the Internet at www.corporateonline.gov.bc.ca

Freedom of Information and Protection of Privacy Act (FOIPPA): Personal information provided on this form is collected, used and disclosed under the authority of the FOIPPA and the Business Corporations Act for the purposes of assessment. Questions regarding the collection, use and disclosure of personal information can be directed to the �� at 1 877 526-1526, PO Box 9431 Stn Prov Govt, Victoria BC V8W 9V3.

If you are continuing a company into BC and want the BC incorporation number as its name, you will need to file this form on paper. Complete this form and mail to the Corporate Registry, along with a letter from the corporation’s home jurisdiction authorizing the continuation in. For information on the content of the authorization letter, see the Corporate Online Help Centre at www.corporateonline.gov.bc.ca for “Continuation Application” and “Authorization for Continuation In.”

A NAME OF COMPANY – �� one ��

Embark Health Inc.

✔ The name

The name is the name reserved for the foreign corporation to be continued in. The name reservation number is: , ��

The foreign corporation is to be continued in with a name created by adding “B.C. Ltd.” after the incorporation number of the company.

B FOREIGN CORPORATION’S CURRENT JURISDICTION

1080330-8

Corporate number assigned by the foreign corporation’s jurisdiction
Corporation’s name in the foreign corporation’s jurisdiction

Embark Health Inc.

Foreign corporation’s date of incorporation or the most recent date of amalgamation or continuation

YYYY / MM / DD 2018/05/28

Foreign corporation’s jurisdiction of incorporation, amalgamation or continuation
Federal

C AUTHORIZATION FOR CONTINUATION

Authorization for the continuation from the foreign corporation’s jurisdiction is:

✔ ATTACHED ALREADY FILED

D REGISTRATION AS AN EXTRAPROVINCIAL COMPANY

Is the foreign corporation currently registered in BC as an extraprovincial company?

✔ YES NO

If YES, enter the BC registration number and name of the extraprovincial company below:

A0106949

Extraprovincial Registration Number in BC

Embark Health Inc.

Extraprovincial Company Name in BC

(Including assumed name, if any, approved for use in BC)

E

CERTIFIED CORRECT – I have read this form and found it to be correct.

NAME OF AUTHORIZED SIGNING AUTHORITY FOR SIGNATURE OF AUTHORIZED SIGNING AUTHORITY FOR DATE SIGNED THE FOREIGN CORPORATION THE FOREIGN CORPORATION YYYY / MM / DD

Bruce Dawson-Scully

Page 1

FORM 16��

NOTICE OF ARTICLES

A NAME OF COMPANY

Set out the name of the company as set out in Item A of the Continuation Application.

Embark Health Inc.

B TRANSLATION OF COMPANY NAME

Set out every translation of the company name that the company intends to use outside of Canada.

C DIRECTOR NAME(S) AND ADDRESS(ES)

Set out the full name, delivery address and mailing address (if different) of every director of the company. The director may select to provide either (a) the delivery address and, if different, the mailing address for the office at which the individual can usually be served with records between 9 a.m. and 4 p.m. on business days or (b) the delivery address and, if different, the mailing address of the individual’s residence. The delivery address must not be a post office box. Attach an additional sheet if more space is required.

LAST NAME DELIVERY ADDRESS MAILING ADDRESS LAST NAME DELIVERY ADDRESS MAILING ADDRESS LAST NAME DELIVERY ADDRESS MAILING ADDRESS LAST NAME DELIVERY ADDRESS MAILING ADDRESS POSTAL CODE/ZIP CODE FIRST NAME MIDDLE NAME POSTAL CODE/ZIP CODE FIRST NAME MIDDLE NAME COUNTRY PROVINCE/STATE COUNTRY PROVINCE/STATE POSTAL CODE/ZIP CODE POSTAL CODE/ZIP CODE COUNTRY PROVINCE/STATE COUNTRY PROVINCE/STATE FIRST NAME MIDDLE NAME FIRST NAME MIDDLE NAME POSTAL CODE/ZIP CODE POSTAL CODE/ZIP CODE COUNTRY PROVINCE/STATE COUNTRY PROVINCE/STATE POSTAL CODE/ZIP CODE POSTAL CODE/ZIP CODE COUNTRY PROVINCE/STATE COUNTRY PROVINCE/STATE Dawson-Scully Bruce	LAST NAME DELIVERY ADDRESS MAILING ADDRESS LAST NAME DELIVERY ADDRESS MAILING ADDRESS LAST NAME DELIVERY ADDRESS MAILING ADDRESS LAST NAME DELIVERY ADDRESS MAILING ADDRESS POSTAL CODE/ZIP CODE FIRST NAME MIDDLE NAME POSTAL CODE/ZIP CODE FIRST NAME MIDDLE NAME COUNTRY PROVINCE/STATE COUNTRY PROVINCE/STATE POSTAL CODE/ZIP CODE POSTAL CODE/ZIP CODE COUNTRY PROVINCE/STATE COUNTRY PROVINCE/STATE FIRST NAME MIDDLE NAME FIRST NAME MIDDLE NAME POSTAL CODE/ZIP CODE POSTAL CODE/ZIP CODE COUNTRY PROVINCE/STATE COUNTRY PROVINCE/STATE POSTAL CODE/ZIP CODE POSTAL CODE/ZIP CODE COUNTRY PROVINCE/STATE COUNTRY PROVINCE/STATE Dawson-Scully Bruce	LAST NAME DELIVERY ADDRESS MAILING ADDRESS LAST NAME DELIVERY ADDRESS MAILING ADDRESS LAST NAME DELIVERY ADDRESS MAILING ADDRESS LAST NAME DELIVERY ADDRESS MAILING ADDRESS POSTAL CODE/ZIP CODE FIRST NAME MIDDLE NAME POSTAL CODE/ZIP CODE FIRST NAME MIDDLE NAME COUNTRY PROVINCE/STATE COUNTRY PROVINCE/STATE POSTAL CODE/ZIP CODE POSTAL CODE/ZIP CODE COUNTRY PROVINCE/STATE COUNTRY PROVINCE/STATE FIRST NAME MIDDLE NAME FIRST NAME MIDDLE NAME POSTAL CODE/ZIP CODE POSTAL CODE/ZIP CODE COUNTRY PROVINCE/STATE COUNTRY PROVINCE/STATE POSTAL CODE/ZIP CODE POSTAL CODE/ZIP CODE COUNTRY PROVINCE/STATE COUNTRY PROVINCE/STATE Dawson-Scully Bruce	LAST NAME DELIVERY ADDRESS MAILING ADDRESS LAST NAME DELIVERY ADDRESS MAILING ADDRESS LAST NAME DELIVERY ADDRESS MAILING ADDRESS LAST NAME DELIVERY ADDRESS MAILING ADDRESS POSTAL CODE/ZIP CODE FIRST NAME MIDDLE NAME POSTAL CODE/ZIP CODE FIRST NAME MIDDLE NAME COUNTRY PROVINCE/STATE COUNTRY PROVINCE/STATE POSTAL CODE/ZIP CODE POSTAL CODE/ZIP CODE COUNTRY PROVINCE/STATE COUNTRY PROVINCE/STATE FIRST NAME MIDDLE NAME FIRST NAME MIDDLE NAME POSTAL CODE/ZIP CODE POSTAL CODE/ZIP CODE COUNTRY PROVINCE/STATE COUNTRY PROVINCE/STATE POSTAL CODE/ZIP CODE POSTAL CODE/ZIP CODE COUNTRY PROVINCE/STATE COUNTRY PROVINCE/STATE Dawson-Scully Bruce

Page �

FORM 16��

D REGISTERED OFFICE ADDRESSES

D	REGISTERED OFFICE ADDRESSES
	DELIVERY ADDRESS OF THE COMPANY’S REGISTERED OFFICE	PROVINCE	POSTAL CODE
	800 - 885 West Georgia Street, Vancouver	BC	V6C 3H1
	MAILING ADDRESS OF THE COMPANY’S REGISTERED OFFICE	PROVINCE	POSTAL CODE
	800 - 885 West Georgia Street, Vancouver	BC	V6C 3H1


E	DELIVERY ADDRESS OF THE COMPANY’S RECORDS OFFICE RECORDS OFFICE ADDRESSES	PROVINCE	POSTAL CODE
	800 - 885 West Georgia Street, Vancouver	BC
			V6C 3H1
	MAILING ADDRESS OF THE COMPANY’S RECORDS OFFICE	PROVINCE	POSTAL CODE
	800 - 885 West Georgia Street, Vancouver	BC	V6C 3H1

F AUTHORIZED SHARE STRUCTURE

Identifying name of class or series of shares	Maximum number of shares of this class or series of shares that the company is authorized to issue, or indicate there is no maximum number.	Maximum number of shares of this class or series of shares that the company is authorized to issue, or indicate there is no maximum number.	Kind of shares of this class or series of shares.	Kind of shares of this class or series of shares.	Are there special rights or restrictions attached to the shares of this class or series of shares?	Are there special rights or restrictions attached to the shares of this class or series of shares?
	THERE IS NO MAXIMUM (✔)	MAXIMUM NUMBER OF SHARES AUTHORIZED	WITHOUT PAR VALUE (✔)	Type of currency WITH A PAR VALUE OF ($)	YES (✔) NO (✔)
Common	✔		✔			✔
Preferred	✔		✔		✔
						✔

Page �

FORM 16��

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Telephone: 1 877 526-1526 www.bcreg.ca

Mailing Address:

PO Box 9431 Stn Prov Govt Victoria BC V8W 9V3

�ourier Address: 200 – 940 Blanshard Street Victoria BC V8W 3E6

INSTRUCTIONS:

Please type or print clearly in block letters.

The Province of British Columbia has entered into a partnership with the Canada Revenue Agency (CRA) to use the national Business Number (BN) as a convenient way for corporations to identify themselves when communicating with federal and provincial governments.

The Corporate Registry, under the authority of the Business Number Act , is therefore collecting the BN from both corporations applying for registration in British Columbia and corporations currently registered in British Columbia. This will allow corporations to use their BN as an identifier the next time they communicate with the Corporate Registry.

You will already have a BN if you have been incorporated federally or if you are incorporated in another Canadian jurisdiction.

You may have also received a BN from CRA if you:

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Freedom of Information and Protection of Privacy Act (FOIPPA): Personal information provided on this form is collected, used and disclosed under the authority of the FOIPPA and the Business Number Act for the purposes of assessment. Questions regarding the collection, use and disclosure of personal information can be directed to the �� at 1 877 526-1526, ��฀��฀��฀��฀ ��฀��฀��฀��฀฀��฀��

COMPLETE ITEM A OR B

A BUSINESS NUMBER

Your Business Number ฀��฀��฀��฀��฀��฀��฀��฀�฀��฀��฀��฀��฀��฀ 82123 5679 RT 0001 . The first nine numbers uniquely identify your business – it’s those numbers we need.

Please enter the first 9 digits here:

752480087

B DIRECTOR NAME

If you do not have a Business Number please enter the name of a director of your corporation (as per CRA requirements) so that we can request one for you. The director’s name is confidential information and is collected under the authority of the Business Number Act .

LAST NAME

FIRST NAME

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SCHEDULE “L”

CONTINUATION ARTICLES

CW17369373.1

Incorporation No. C____

BUSINESS CORPORATIONS ACT

ARTICLES

OF

EMBARK HEALTH INC.

Part 1 – Interpretation ......................................................................................... 1 Part 2 – Shares and Share certificates.................................................................. 2 Part 3 – Issue of Shares ........................................................................................ 3 Part 4 – Share Transfers ....................................................................................... 3 Part 5 – Acquisition of Shares .............................................................................. 4 Part 6 – Borrowing Powers .................................................................................. 4 Part 7 – General Meetings ................................................................................... 4 Part 8 – Proceedings at Meetings of Shareholders .............................................. 6 Part 9 – Alterations and Resolutions .................................................................... 9 Part 10 – Votes of Shareholders ........................................................................ 10 Part 11 – Directors ............................................................................................. 13 Part 12 – Election and Removal of Directors ..................................................... 14 Part 13 – Proceedings of Directors..................................................................... 20 Part 14 – Committees of Directors..................................................................... 22 Part 15 – Officers ............................................................................................... 23 Part 16 – Certain Permitted Activities of Directors ............................................ 23 Part 17 – Indemnification ................................................................................... 24 Part 18 – Auditor ................................................................................................ 24 Part 19 – Dividends ............................................................................................ 24 Part 20 – Accounting Records ............................................................................ 25 Part 21 – Execution of Instruments .................................................................... 25 Part 22 – Notices ................................................................................................ 26 Part 23 – Restriction on Share Transfer ............................................................. 27 Part 24 - Special Rights and Restrictions ............................................................ 28

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Incorporation No. C___

BUSINESS CORPORATIONS ACT

ARTICLES

EMBARK HEALTH INC.

(the “ Company ”)

PART 1– INTERPRETATION

1.1 Definitions

Without limiting Article 1.2, in these Articles, unless the context requires otherwise:

(a) “adjourned meeting” means the meeting to which a meeting is adjourned under Article 8.6 or 8.9;
(b) “board” and “directors” mean the board of directors of the Company for the time being;
(c) “ Business Corporations Act ” means the Business Corporations Act , S.B.C. 2002, c.57, and includes its regulations;
(d) “Company” means Embark Health Inc.;
(e) “ Interpretation Act ” means the Interpretation Act , R.S.B.C. 1996, c. 238; and
(f) “trustee”, in relation to a shareholder, means the personal or other legal representative of the shareholder, and includes a trustee in bankruptcy of the shareholder.

1.2 Business Corporations Act definitions apply

The definitions in the Business Corporations Act apply to these Articles.

1.3 Interpretation Act applies

The Interpretation Act applies to the interpretation of these Articles as if these Articles were an enactment.

1.4 Conflict in definitions

1.5 Conflict between Articles and legislation

If there is a conflict between these Articles and the Business Corporations Act , the Business Corporations Act will prevail.

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PART 2 – SHARES AND SHARE CERTIFICATES

2.1 Form of share certificate

Each share certificate issued by the Company must comply with, and be signed as required by, the Business Corporations Act .

2.2 Shareholder Entitled to Certificate or Acknowledgement

2.3 Sending of share certificate

2.4 Replacement of worn out or defaced certificate

If the directors are satisfied that a share certificate is worn out or defaced, they must, on production to them of the certificate and on such other terms, if any, as they think fit:

(a) order the certificate to be cancelled; and
(b) issue a replacement share certificate.

2.5 Replacement of lost, stolen or destroyed certificate

If a share certificate is lost, stolen or destroyed, a replacement share certificate must be issued to the person entitled to that certificate if the directors receive:

(a) proof satisfactory to them that the certificate is lost, stolen or destroyed; and
(b) any indemnity the directors consider adequate.

2.6 Splitting share certificates

2.7 Shares may be uncertificated

Notwithstanding any other provisions of this Part, the directors may, by resolution, provide that:

(a) the shares of any or all of the classes and series of the Company’s shares may be uncertificated shares; or
(b) any specified shares may be uncertificated shares.

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PART 3 – ISSUE OF SHARES

3.1 Directors authorized to issue shares

3.2 Company need not recognize unregistered interests

Except as required by law or these Articles, the Company need not recognize or provide for any person’s interests in or rights to a share unless that person is the shareholder of the share.

PART 4 – SHARE TRANSFERS

4.1 Recording or registering transfer

A transfer of shares of the Company must not be registered:

(a) unless a duly signed instrument of transfer in respect of the shares has been received by the Company and the certificate (or acceptable documents pursuant to Article 2.5 hereof) representing the shares to be transferred has been surrendered and cancelled; or
(b) if no certificate has been issued by the Company in respect of the shares, unless a duly signed instrument of transfer in respect of the shares has been received by the Company.

4.2 Form of instrument of transfer

4.3 Signing of instrument of transfer

(a) in the name of the person named as transferee in that instrument of transfer; or
(b) if no person is named as transferee in that instrument of transfer, in the name of the person on whose behalf the share certificate is deposited for the purpose of having the transfer registered.

4.4 Enquiry as to title not required

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4.5 Transfer fee

There must be paid to the Company, in relation to the registration of any transfer, the amount determined by the directors from time to time.

PART 5 – ACQUISITION OF SHARES

5.1 Company authorized to purchase shares

5.2 Company authorized to accept surrender of shares

The Company may, if it is authorized to do so by the directors, accept a surrender of any of its shares.

5.3 Company authorized to convert fractional shares into whole shares

PART 6 – BORROWING POWERS

6.1 Powers of directors

The directors may from time to time on behalf of the Company:

(a) borrow money in the manner and amount, on the security, from the sources and on the terms and conditions that they consider appropriate;
(b) issue bonds, debentures and other debt obligations either outright or as security for any liability or obligation of the Company or any other person, and at any discount or premium and on such other terms as they consider appropriate;
(c) guarantee the repayment of money by any other person or the performance of any obligation of any other person; and
(d) mortgage or charge, whether by way of specific or floating charge, or give other security on the whole or any part of the present and future assets and undertaking of the Company.

PART 7 – GENERAL MEETINGS

7.1 Annual general meetings

7.2 When annual general meeting is deemed to have been held

CW17326508.1

under this Article 7.2, select as the Company’s annual reference date a date that would be appropriate for the holding of the applicable annual general meeting.

7.3 Calling of shareholder meetings

The directors may, whenever they think fit, call a meeting of shareholders.

7.4 Notice for meetings of shareholders

(a) if and for so long as the Company is a public company, 21 days;
(b) otherwise, 10 days.

7.5 Record date for notice

(a) if and for so long as the Company is a public company, 21 days;
(b) otherwise, 10 days.

If no record date is set, the record date is 5 p.m. on the day immediately preceding the first date on which the notice is sent or, if no notice is sent, the beginning of the meeting.

7.6 Record date for voting

7.7 Failure to give notice and waiver of notice

7.8 Notice of special business at meetings of shareholders

If a meeting of shareholders is to consider special business within the meaning of Article 8.1, the notice of meeting must:

(a) state the general nature of the special business; and

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(b) if the special business includes considering, approving, ratifying, adopting or authorizing any document or the signing of or giving of effect to any document, have attached to it a copy of the document or state that a copy of the document will be available for inspection by shareholders:
(i) at the Company’s records office, or at such other reasonably accessible location in British Columbia as is specified in the notice, and
(ii) during statutory business hours on any one or more specified days before the day set for the holding of the meeting.

PART 8 – PROCEEDINGS AT MEETINGS OF SHAREHOLDERS

8.1 Special business

At a meeting of shareholders, the following business is special business:

(a) at a meeting of shareholders that is not an annual general meeting, all business is special business except business relating to the conduct of or voting at the meeting or the election or appointment of directors;
(b) at an annual general meeting, all business is special business except for the following:
(i) business relating to the conduct of or voting at the meeting,
(ii) consideration of any financial statements of the Company presented to the meeting,
(iii) consideration of any reports of the directors or auditor,
(iv) the setting or changing of the number of directors,
(v) the election or appointment of directors,
(vi) the appointment of an auditor,
(vii) the setting of the remuneration of an auditor,
(viii) business arising out of a report of the directors not requiring the passing of a special resolution or an exceptional resolution, and
(ix) any other business which, under these Articles or the Business Corporations Act , may be transacted at a meeting of shareholders without prior notice of the business being given to the shareholders.

8.2 Special resolution

The votes required for the Company to pass a special resolution at a meeting of shareholders is twothirds of the votes cast on the resolution.

8.3 Quorum

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8.4 Other persons may attend

The directors, the president, if any, the secretary, if any, and any lawyer or auditor for the Company are entitled to attend any meeting of shareholders, but if any of those shareholders do attend a meeting of shareholders, that person is not to be counted in the quorum, and is not entitled to vote at the meeting, unless that person is a shareholder or proxy holder entitled to vote at the meeting.

8.5 Requirement of quorum

8.6 Lack of quorum

If, within 1/2 hour from the time set for the holding of a meeting of shareholders, a quorum is not present:

(a) in the case of a general meeting convened by requisition of shareholders, the meeting is dissolved; and
(b) in the case of any other meeting of shareholders, the shareholders entitled to vote at the meeting who are present, in person or by proxy, at the meeting may adjourn the meeting to a set time and place.

8.7 Chair

The following individual is entitled to preside as chair at a meeting of shareholders:

(a) the chair of the board, if any;
(b) if the chair of the board is absent or unwilling to act as chair of the meeting, the president, if any.

8.8 Alternate chair

At any meeting of shareholders, the directors present must choose one of their number to be chair of the meeting if:

(a) there is no chair of the board or president present within 15 minutes after the time set for holding the meeting;
(b) the chair of the board and the president are unwilling to act as chair of the meeting; or
(c) if the chair of the board and the president have advised the secretary, if any, or any director present at the meeting, that they will not be present at the meeting. If, in any of the foregoing circumstances, all of the directors present decline to accept the position of chair or fail to choose one of their number to be chair of the meeting, or if no director is present, the shareholders present in person or by proxy must choose any person present at the meeting to chair the meeting.

8.9 Adjournments

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8.10 Notice of adjourned meeting

8.11 Motion need not be seconded

8.12 Manner of taking a poll

Subject to Article 8.13, if a poll is duly demanded at a meeting of shareholders:

(a) the poll must be taken:
(i) at the meeting, or within 7 days after the date of the meeting, as the chair of the meeting directs, and
(ii) in the manner, at the time and at the place that the chair of the meeting directs;
(b) the result of the poll is deemed to be a resolution of, and passed at, the meeting at which the poll is demanded; and
(c) the demand for the poll may be withdrawn.

8.13 Demand for a poll on adjournment

A poll demanded at a meeting of shareholders on a question of adjournment must be taken immediately at the meeting.

8.14 Demand for a poll not to prevent continuation of meeting

8.15 Poll not available in respect of election of chair

No poll may be demanded in respect of the vote by which a chair of a meeting of shareholders is elected.

8.16 Casting of votes on poll

On a poll, a shareholder entitled to more than one vote need not cast all the votes in the same way.

8.17 Chair must resolve dispute

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8.18 Chair has no second vote

8.19 Declaration of result

8.20 Meetings by telephone or other communications medium

(a) each such shareholder or proxy holder shall be deemed to be present at the meeting; and
(b) the meeting shall be deemed to be held at the location specified in the notice of the meeting.

PART 9 – ALTERATIONS AND RESOLUTIONS

9.1 Alteration of Authorized Share Structure

Subject to Article 9.2 and the Business Corporations Act , the Company may by resolution of the directors:

(a) create one or more classes or series of shares or, if none of the shares of a class or series of shares are allotted or issued, eliminate that class or series of shares;
(b) increase, reduce or eliminate the maximum number of shares that the Company is authorized to issue out of any class or series of shares or establish a maximum number of shares that the Company is authorized to issue out of any class or series of shares for which no maximum is established;
(c) if the Company is authorized to issue shares of a class of shares with par value:
(i) decrease the par value of those shares,
(ii) if none of the shares of that class of shares are allotted or issued, increase the par value of those shares,
(iii) subdivide all or any of its unissued or fully paid issued shares with par value into shares of smaller par value, or
(iv) consolidate all or any of its unissued or fully paid issued shares with par value into shares of larger par value;
(d) subdivide or consolidate all or any of its unissued or fully paid issued shares without par value;

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(e) change all or any of its unissued or fully paid issued shares with par value into shares without par value or all or any of its unissued shares without par value into shares with par value;
(f) alter the identifying name of any of its shares; or
(g) otherwise alter its shares or authorized share structure when required or permitted to do so by the Business Corporations Act .

9.2 Change of Name

The Company may by resolution of the directors authorize an alteration to its Notice of Articles in order to change its name or adopt or change any translation of that name.

9.3 Other Alterations or Resolutions

If the Business Corporations Act does not specify:

(a) the type of resolution and these Articles do not specify another type of resolution, the Company may by resolution of the directors authorize any act of the Company, including without limitation, an alteration of these Articles; or
(b) the type of shareholders’ resolution and these Articles do not specify another type of shareholders’ resolution, the Company may by ordinary resolution authorize any act of the Company.

PART 10 – VOTES OF SHAREHOLDERS

10.1 Voting rights

Subject to any special rights or restrictions attached to any shares and to the restrictions imposed on joint registered holders of shares under Article 10.3:

(a) on a vote by show of hands, every person present who is a shareholder or proxy holder and entitled to vote at the meeting has one vote; and
(b) on a poll, every shareholder entitled to vote has one vote in respect of each share held by that shareholder that carries the right to vote on that poll and may exercise that vote either in person or by proxy.

10.2 Trustee of shareholder may vote

10.3 Votes by joint shareholders

If there are joint shareholders registered in respect of any share:

(a) any one of the joint shareholders, but not both or all, may vote at any meeting, either personally or by proxy, in respect of the share as if that joint shareholder were solely entitled to it; or

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(b) if more than one of the joint shareholders is present at any meeting, personally or by proxy, the joint shareholder present whose name stands first on the central securities register in respect of the share is alone entitled to vote in respect of that share.

10.4 Trustees as joint shareholders

Two or more trustees of a shareholder in whose sole name any share is registered are, for the purposes of Article 10.3, deemed to be joint shareholders.

10.5 Representative of a corporate shareholder

If a corporation that is not a subsidiary of the Company is a shareholder, that corporation may appoint a person to act as its representative at any meeting of shareholders of the Company, and:

(a) for that purpose, the instrument appointing a representative must
(i) be received at the registered office of the Company or at any other place specified, in the notice calling the meeting, for the receipt of proxies, at least two (2) business days before the day set for the holding of the meeting, or
(ii) unless the notice of the meeting provides otherwise, be provided, at the meeting, to the chair of the meeting; and
(b) if a representative is appointed under this Article 10.5:
(i) the representative is entitled to exercise in respect of and at that meeting the same rights on behalf of the corporation that the representative represents as that corporation could exercise if it were a shareholder who is an individual, including, without limitation, the right to appoint a proxy holder, and
(ii) the representative, if present at the meeting, is to be counted for the purpose of forming a quorum and is deemed to be a shareholder present in person at the meeting.

10.6 When proxy provisions do not apply

Articles 10.7 to 10.13 do not apply to the Company if and for so long as it is a public company.

10.7 Appointment of proxy holder

10.8 Alternate proxy holders

A shareholder may appoint one or more alternate proxy holders to act in the place of an absent proxy holder.

10.9 When proxy holder need not be shareholder

A person must not be appointed as a proxy holder unless the person is a shareholder, although a person who is not a shareholder may be appointed as a proxy holder if:

(a) the person appointing the proxy holder is a corporation or a representative of a corporation appointed under Article 10.5;

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(b) the Company has at the time of the meeting for which the proxy holder is to be appointed only one shareholder entitled to vote at the meeting; or
(c) the shareholders present in person or by proxy at and entitled to vote at the meeting for which the proxy holder is to be appointed, by a resolution on which the proxy holder is not entitled to vote but in respect of which the proxy holder is to be counted in the quorum, permit the proxy holder to attend and vote at the meeting.

10.10 Form of proxy

A proxy, whether for a specified meeting or otherwise, must be either in the following form or in any other form approved by the directors or the chair of the meeting:

(Name of Company)

The undersigned, being a shareholder of the above named Company, hereby appoints ....................................... or, failing that person, ......................................., as proxy

holder for the undersigned to attend, act and vote for and on behalf of the undersigned at the meeting of shareholders to be held on the day of and at any adjournment of that meeting.

Signed this .......... day of .............................................., .................

...............................................................

Signature of shareholder

10.11 Provision of proxies

A proxy for a meeting of shareholders must:

(a) be received at the registered office of the Company or at any other place specified in the notice calling the meeting for the receipt of proxies, at least the number of business days specified in the notice or, if no number of days is specified, two (2) business days before the day set for the holding of the meeting; or
(b) unless the notice of the meeting provides otherwise, be provided at the meeting to the chair of the meeting.

10.12 Revocation of proxies

Subject to Article 10.13, every proxy may be revoked by an instrument in writing that is:

(a) received at the registered office of the Company at any time up to and including the last business day before the day set for the holding of the meeting at which the proxy is to be used; or
(b) provided at the meeting to the chair of the meeting.

10.13 Revocation of proxies must be signed

An instrument referred to in Article 10.12 must be signed as follows:

(a) if the shareholder for whom the proxy holder is appointed is an individual, the instrument must be signed by the shareholder or his or her trustee; or

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(b) if the shareholder for whom the proxy holder is appointed is a corporation, the instrument must be signed by the corporation or by a representative appointed for the corporation under Article 10.5.

10.14 Validity of proxy votes

(a) at the registered office of the Company, at any time up to and including the last business day before the day set for the holding of the meeting at which the proxy is to be used; or
(b) by the chair of the meeting, before the vote is taken.

10.15 Production of evidence of authority to vote

10.16 Chair May Determine Validity of Proxy

PART 11 – DIRECTORS

11.1 First directors; number of directors

(a) subject to paragraphs (b) and (c), the number of directors that is equal to the number of the Company’s first directors;
(b) if the Company is a public company, the greater of three and the number most recently elected by ordinary resolution (whether or not previous notice of the resolution was given); and
(c) if the Company is not a public company, the number most recently elected by ordinary resolution (whether or not previous notice of the resolution was given).

11.2 Change in number of directors

If the number of directors is set under Articles 11.1(b) or 11.1(c):

(a) the shareholders may elect or appoint the directors needed to fill any vacancies in the board of directors up to that number;
(b) if, contemporaneously with setting that number, the shareholders do not elect or appoint the directors needed to fill vacancies in the board of directors up to that number, then the

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directors may appoint, or the shareholders may elect or appoint, directors to fill those vacancies.

11.3 Directors’ acts valid despite vacancy

An act or proceeding of the directors is not invalid merely because fewer directors have been appointed or elected than the number of directors set or otherwise required under these Articles.

11.4 Qualifications of directors

11.5 Remuneration of directors

11.6 Reimbursement of expenses of directors

The Company must reimburse each director for the reasonable expenses that he or she may incur in and about the business of the Company.

11.7 Special remuneration for directors

11.8 Gratuity, pension or allowance on retirement of director

PART 12 – ELECTION AND REMOVAL OF DIRECTORS

12.1 Election at annual general meeting

At every annual general meeting and in every unanimous resolution contemplated by Article 7.2:

(a) the shareholders entitled to vote at the annual general meeting for the election of directors may elect, or in the unanimous resolution appoint, a board of directors consisting of up to the number of directors for the time being set under these Articles; and
(b) all the directors cease to hold office immediately before the election or appointment of directors under paragraph (a), but are eligible for re-election or re-appointment.

12.2 Consent to be a director

No election, appointment or designation of an individual as a director is valid unless:

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(a) that individual consents to be a director in the manner provided for in the Business Corporations Act ;
(b) that individual is elected or appointed at a meeting at which the individual is present and the individual does not refuse, at the meeting, to be a director; or
(c) with respect to first directors, the designation is otherwise valid under the Business Corporations Act .

12.3 Failure to elect or appoint directors

If:

(a) the Company fails to hold an annual general meeting, and all the shareholders who are entitled to vote at an annual general meeting fail to pass the unanimous resolution contemplated by Article 7.2, on or before the date by which the annual general meeting is required to be held under the Business Corporations Act ; or
(b) the shareholders fail, at the annual general meeting or in the unanimous resolution contemplated by Article 7.2, to elect or appoint any directors;

then each director in office at such time continues to hold office until the earlier of:

(c) the date on which his or her successor is elected or appointed; and
(d) the date on which he or she otherwise ceases to hold office under the Business Corporations Act or these Articles.

12.4 Directors may fill casual vacancies

Any casual vacancy occurring in the board of directors may be filled by the remaining directors.

12.5 Remaining directors’ power to act

12.6 Shareholders may fill vacancies

12.7 Additional directors

(a) one-third of the number of first directors, if, at the time of the appointments, one or more of the first directors have not yet completed their first term of office; or

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(b) in any other case, one-third of the number of the current directors who were elected or appointed as directors other than under this Article 12.7.

Any director so appointed ceases to hold office immediately before the next election or appointment of directors under Article 12.1(a), but is eligible for re-election or re-appointment.

12.8 Ceasing to be a director

A director ceases to be a director when:

(a) the term of office of the director expires;
(b) the director dies;
(c) the director resigns as a director by notice in writing provided to the Company or a lawyer for the Company; or
(d) the director is removed from office pursuant to Articles 12.9 or 12.10.

12.9 Removal of director by shareholders

12.10 Removal of director by directors

12.11 Nominations of directors

(a) Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Company.
(b) Nominations of persons for election to the board may be made at any annual meeting of shareholders or at any special meeting of shareholders (if one of the purposes for which the special meeting was called was the election of directors):
(i) by or at the direction of the board, including pursuant to a notice of meeting,
(ii) by or at the direction or request of one or more shareholders pursuant to a proposal made in accordance with the provisions of the Business Corporations Act , or a requisition of the shareholders made in accordance with the provisions of the Business Corporations Act , or
(iii) by any person (a “ Nominating Shareholder ”): (A) who, at the close of business on the date of the giving of the notice provided for below in this Article 12.11 and on the record date for notice of such meeting, is entered in the securities register as a holder of one or more shares carrying the right to vote at such meeting or who beneficially owns shares that are entitled to be voted at such meeting; and (B) who complies with the notice procedures set forth below in this Article 12.11.

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(c) In addition to any other applicable requirements, for a nomination to be made by a Nominating Shareholder, the Nominating Shareholder must have given timely notice thereof (as provided for in Article 12.11(d)) in proper written form to the secretary of the Company at the principal executive offices of the Company.
(d) To be timely, a Nominating Shareholder’s notice to the secretary of the Company must be given:
(i) in the case of an annual meeting of shareholders, not less than 30 nor more than 65 days prior to the date of the annual meeting of shareholders; provided, however, that in the event that the annual meeting of shareholders is to be held on a date that is less than 50 days after the date (the “ Notice Date” ) on which the first public announcement (as defined below) of the date of the annual meeting was made, notice by the Nominating Shareholder may be given not later than the close of business on the tenth (10th) day after the Notice Date in respect of such meeting; and
(ii) in the case of a special meeting (which is not also an annual meeting) of shareholders called for the purpose of electing directors (whether or not called for other purposes), not later than the close of business on the fifteenth (15th) day following the day on which the first public announcement of the date of the special meeting of shareholders was made.

(e) To be in proper written form, a Nominating Shareholder’s notice to the secretary of the Company must set forth:
(i) as to each person whom the Nominating Shareholder proposes to nominate for election as a director: (A) the name, age, business address and residential address of the person; (B) the principal occupation or employment of the person during the past five years; (C) the class or series and number of shares in the capital of the Company which are controlled or which are owned beneficially or of record by the person as of the record date for the meeting of shareholders (if such date shall then have been made publicly available and shall have occurred) and as of the date of such notice; (D) a statement as to whether such person would be “independent” of the Company (as such term is defined under Applicable Securities Laws (as defined below)) if elected as a director at such meeting and the reasons and basis for such determination; (E) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such Nominating Shareholder and beneficial owner, if any, and their respective affiliates and associates, or others acting jointly or in concert therewith, on the one hand, and such nominee, and his or her respective associates, or others acting jointly or in concert therewith, on the other hand; and (F) any other information relating to the person that would be required to be disclosed in a dissident’s proxy circular in connection with solicitations of proxies for election of directors pursuant to the Business Corporations Act and Applicable Securities Laws (as defined below); and
(ii) as to the Nominating Shareholder giving the notice: (A) any proxy, contract, arrangement, understanding or relationship pursuant to which such Nominating

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Shareholder has a right to vote any shares of the Company; (B) the class or series and number of shares in the capital of the Company which are controlled or which are owned beneficially or of the record by the Nominating Shareholder as of the record date for the meeting of shareholders (if such date shall then have been made publicly available and shall have occurred) and as of the date of such notice, and (C) any other information relating to such Nominating Shareholder that would be required to be made in a dissident’s proxy circular in connection with solicitations of proxies for election of directors pursuant to the Business Corporations Act and Applicable Securities Laws (as defined below).

(f) The Company may require any proposed nominee to furnish such other information as may reasonably be required by the Company to determine the eligibility of such proposed nominee to serve as an independent director of the Company or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such proposed nominee.
(g) The chair of the meeting shall have the power and duty to determine whether a nomination was made in accordance with the provisions set forth in this Article 12.11 and, if any proposed nomination is not in compliance with such provisions, to declare that such defective nomination shall be disregarded.
(h) For purposes of this Article 12.11:
(i) “ Affiliate ”, when used to indicate a relationship with a person, means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such specified person;
(ii) “ Applicable Securities Laws ” means the applicable securities legislation of each relevant province and territory of Canada, as amended from time to time, the rules, regulations and forms made or promulgated under any such statute and the published national instruments, multilateral instruments, policies, bulletins and notices of the securities commission and similar regulatory authority of each province and territory of Canada;
(iii) “ Associate ”, when used to indicate a relationship with a specified person, means:
- A. any corporation or trust of which such person beneficially owns, directly or indirectly, voting securities carrying more than 10% of the voting rights attached to all voting securities of such corporation or trust for the time being outstanding,
- B. any partner of that person,
- C. any trust or estate in which such person has a substantial beneficial interest or as to which such person serves as trustee or in a similar capacity,
- D. a spouse of such specified person,
- E. any person of either sex with whom such specified person is living in a conjugal relationship outside marriage, or
- F. any relative of such specified person or of a person mentioned in clauses D or E of this definition if that relative has the same residence as the specified person;

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(iv) “ Derivatives Contract ” means a contract between two parties (the “ Receiving Party ” and the “ Counterparty ”) that is designed to expose the Receiving Party to economic benefits and risks that correspond substantially to the ownership by the Receiving Party of a number of shares in the capital of the Company or securities convertible into such shares specified or referenced in such contract (the number corresponding to such economic benefits and risks, the “ Notional Securities ”), regardless of whether obligations under such contract are required or permitted to be settled through the delivery of cash, shares in the capital of the Company or securities convertible into such shares or other property, without regard to any short position under the same or any other Derivatives Contract. For the avoidance of doubt, interests in broadbased index options, broad-based index futures and broad-based publicly traded market baskets of stocks approved for trading by the appropriate governmental authority shall not be deemed to be Derivatives Contracts;
(v) “ owned beneficially ” or “ owns beneficially ” means, in connection with the ownership of shares in the capital of the Company by a person:
A. any such shares as to which such person or any of such person’s Affiliates or Associates owns at law or in equity, or has the right to acquire or become the owner at law or in equity, where such right is exercisable immediately or after the passage of time and whether or not on condition or the happening of any contingency or the making of any payment, upon the exercise of any conversion right, exchange right or purchase right attaching to any securities, or pursuant to any agreement, arrangement, pledge or understanding whether or not in writing,
B. any such shares as to which such person or any of such person’s Affiliates or Associates has the right to vote, or the right to direct the voting, where such right is exercisable immediately or after the passage of time and whether or not on condition or the happening of any contingency or the making of any payment, pursuant to any agreement, arrangement, pledge or understanding whether or not in writing,
C. any such shares which are beneficially owned, directly or indirectly, by a Counterparty (or any of such Counterparty’s Affiliates or Associates) under any Derivatives Contract (without regard to any short or similar position under the same or any other Derivatives Contract) to which such person or any of such person’s Affiliates or Associates is a Receiving Party; provided, however, that the number of shares that a person owns beneficially pursuant to this clause in connection with a particular Derivatives Contract shall not exceed the number of Notional Securities with respect to such Derivatives Contract; provided, further, that the number of securities owned beneficially by each Counterparty (including their respective Affiliates and Associates) under a Derivatives Contract shall for purposes of this clause be deemed to include all securities that are owned beneficially, directly or indirectly, by any other Counterparty (or any of such other Counterparty’s Affiliates or Associates) under any Derivatives Contract to which such first Counterparty (or any of such first Counterparty’s Affiliates or Associates) is a Receiving Party and this proviso shall be applied to successive Counterparties as appropriate, and
D. any such shares which are owned beneficially within the meaning of this definition by any other person with whom such person is acting jointly or in concert with respect to the Company or any of its securities, and

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(vi) “ public announcement ” shall mean disclosure in a press release reported by a national news service in Canada, or in a document publicly filed by the Company under its profile on the System of Electronic Document Analysis and Retrieval at www.sedar.com.
(i) Notwithstanding any other provision of this Article 12.11, notice given to the secretary of the Company pursuant to this Article 12.11 may only be given by personal delivery, facsimile transmission or by email (at such email address as stipulated from time to time by the secretary of the Company for purposes of this notice), and shall be deemed to have been given and made only at the time it is served by personal delivery, email (at the address as aforesaid, provided that receipt of confirmation of such transmission has been received) or sent by facsimile transmission (provided that receipt of confirmation of such transmission has been received) to the secretary at the address of the principal executive offices of the Company; provided that if such delivery or electronic communication is made on a day which is a not a business day or later than 5:00 p.m. (Vancouver time) on a day which is a business day, then such delivery or electronic communication shall be deemed to have been made on the subsequent day that is a business day.
(j) Notwithstanding the foregoing, the board may, in its sole discretion, waive any requirement in this Article 12.11.

PART 13 – PROCEEDINGS OF DIRECTORS

13.1 Meetings of directors

13.2 Chair of meetings

Meetings of directors are to be chaired by:

(a) the chair of the board, if any;
(b) in the absence of the chair of the board, the president, if any, if the president is a director; or
(c) any other director chosen by the directors if:
(i) neither the chair of the board nor the president, if a director, is present at the meeting within 15 minutes after the time set for holding the meeting,
(ii) neither the chair of the board nor the president, if a director, is willing to chair the meeting, or
(iii) the chair of the board and the president, if a director, have advised the secretary, if any, or any other director, that they will not be present at the meeting.

13.3 Voting at meetings

Questions arising at any meeting of directors are to be decided by a majority of votes and, in the case of an equality of votes, the chair of the meeting does not have a second or casting vote.

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13.4 Meetings by telephone or other communications medium

13.5 Who may call extraordinary meetings

A director may call a meeting of the board at any time. The secretary, if any, must on request of a director, call a meeting of the board.

13.6 Notice of extraordinary meetings

(a) by mail addressed to the director’s address as it appears on the books of the Company or to any other address provided to the Company by the director for this purpose;
(b) by leaving it at the director’s prescribed address or at any other address provided to the Company by the director for this purpose; or
(c) orally, by delivery of written notice or by telephone, voice mail, e-mail, fax or any other method of legibly transmitting messages.

13.7 When notice not required

It is not necessary to give notice of a meeting of the directors to a director if:

(a) the meeting is to be held immediately following a meeting of shareholders at which that director was elected or appointed or is the meeting of the directors at which that director is appointed;
(b) the director has filed a waiver under Article 13.9; or
(c) the director attends such meeting.

13.8 Meeting valid despite failure to give notice

The accidental omission to give notice of any meeting of directors to any director, or the non-receipt of any notice by any director, does not invalidate any proceedings at that meeting.

13.9 Waiver of notice of meetings

13.10 Effect of waiver

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13.11 Quorum

The quorum necessary for the transaction of the business of the directors may be set by the directors and, if not so set, is a majority of the directors.

13.12 If only one director

PART 14 – COMMITTEES OF DIRECTORS

14.1 Appointment of committees

The directors may, by resolution:

(a) appoint one or more committees consisting of the director or directors that they consider appropriate;
(b) delegate to a committee appointed under paragraph (a) any of the directors’ powers, except:
(i) the power to fill vacancies in the board,
(ii) the power to change the membership of, or fill vacancies in, any committee of the board, and
(iii) the power to appoint or remove officers appointed by the board; and
(c) make any delegation referred to in paragraph (b) subject to the conditions set out in the resolution.

14.2 Obligations of committee

Any committee formed under Article 14.1, in the exercise of the powers delegated to it, must:

(a) conform to any rules that may from time to time be imposed on it by the directors; and
(b) report every act or thing done in exercise of those powers to the earliest meeting of the directors to be held after the act or thing has been done.

14.3 Powers of board

The board may, at any time:

(a) revoke the authority given to a committee, or override a decision made by a committee, except as to acts done before such revocation or overriding;
(b) terminate the appointment of, or change the membership of, a committee; and
(c) fill vacancies in a committee.

14.4 Committee meetings

Subject to Article 14.2(a):

(a) the members of a directors’ committee may meet and adjourn as they think proper;
(b) a directors’ committee may elect a chair of its meetings but, if no chair of the meeting is elected, or if at any meeting the chair of the meeting is not present within 15 minutes after

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the time set for holding the meeting, the directors present who are members of the committee may choose one of their number to chair the meeting;

(c) a majority of the members of a directors’ committee constitutes a quorum of the committee; and
(d) questions arising at any meeting of a directors’ committee are determined by a majority of votes of the members present, and in case of an equality of votes, the chair of the meeting has no second or casting vote.

PART 15 – OFFICERS

15.1 Appointment of officers

15.2 Functions, duties and powers of officers

The board may, for each officer:

(a) determine the functions and duties the officer is to perform;
(b) entrust to and confer on the officer any of the powers exercisable by the directors on such terms and conditions and with such restrictions as the directors think fit; and
(c) from time to time revoke, withdraw, alter or vary all or any of the functions, duties and powers of the officer.

15.3 Remuneration

PART 16 – CERTAIN PERMITTED ACTIVITIES OF DIRECTORS

16.1 Other office of director

16.2 No disqualification

16.3 Professional services by director or officer

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16.4 Remuneration and benefits received from certain entities

PART 17 – INDEMNIFICATION

17.1 Indemnification of directors

17.2 Deemed contract

Each director is deemed to have contracted with the Company on the terms of the indemnity referred to in Article 17.1.

PART 18 – AUDITOR

18.1 Remuneration of an auditor

The directors may set the remuneration of the auditor of the Company without the prior approval of the shareholders.

18.2 Waiver of appointment of an auditor

PART 19 – DIVIDENDS

19.1 Declaration of dividends

19.2 No notice required

The directors need not give notice to any shareholder of any declaration under Article 19.1.

19.3 Directors may determine when dividend payable

Any dividend declared by the directors may be made payable on such date as is fixed by the directors.

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19.4 Dividends to be paid in accordance with number of shares

19.5 Manner of paying dividend

19.6 Dividend bears no interest

No dividend bears interest against the Company.

19.7 Fractional dividends

19.8 Payment of dividends

Any dividend or other distribution payable in cash in respect of shares may be paid by cheque, made payable to the order of the person to whom it is sent, and mailed:

(a) subject to paragraphs (b) and (c), to the address of the shareholder;
(b) subject to paragraph (c), in the case of joint shareholders, to the address of the joint shareholder whose name stands first on the central securities register in respect of the shares; or
(c) to the person and to the address as the shareholder or joint shareholders may direct in writing.

19.9 Receipt by joint shareholders

If several persons are joint shareholders of any share, any one of them may give an effective receipt for any dividend, bonus or other money payable in respect of the share.

PART 20 – ACCOUNTING RECORDS

20.1 Recording of financial affairs

PART 21 – EXECUTION OF INSTRUMENTS

21.1 Who may attest seal

The Company’s seal, if any, must not be impressed on any record except when that impression is attested by the signature or signatures of:

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(a) any two (2) directors;
(b) any officer, together with any director;
(c) if the Company has only one director, that director; or
(d) any one or more directors or officers or persons as may be determined by resolution of the directors.

21.2 Sealing copies

21.3 Execution of documents not under seal

PART 22 – NOTICES

22.1 Method of giving notice

(a) mail addressed to the person at the applicable address for that person as follows:
(i) for a record mailed to a shareholder, the shareholder’s registered address,
(ii) for a record mailed to a director or officer, the prescribed address for mailing shown for the director or officer in the records kept by the Company or the mailing address provided by the recipient for the sending of that record or records of that class, or
(iii) in any other case, the mailing address of the intended recipient;
(b) delivery at the applicable address for that person as follows, addressed to the person:
(i) for a record delivered to a shareholder, the shareholder’s registered address,
(ii) for a record delivered to a director or officer, the prescribed address for delivery shown for the director or officer in the records kept by the Company or the delivery address provided by the recipient for the sending of that record or records of that class,
(iii) in any other case, the delivery address of the intended recipient;
(c) sending the record by fax to the fax number provided by the intended recipient for the sending of that record or records of that class;
(d) sending the record by email to the email address provided by the intended recipient for the sending of that record or records of that class;
(e) physical delivery to the intended recipient; or

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(f) such other manner of delivery as is permitted by applicable legislation governing electronic delivery.

22.2 Deemed receipt of mailing

22.3 Certificate of sending

22.4 Notice to joint shareholders

22.5 Notice to trustees

A notice, statement, report or other record may be provided by the Company to the persons entitled to a share in consequence of the death, bankruptcy or incapacity of a shareholder by:

(a) mailing the record, addressed to them:
(i) by name, by the title of the legal personal representative of the deceased or incapacitated shareholder, by the title of trustee of the bankrupt shareholder or by any similar description, and
(ii) at the address, if any, supplied to the Company for that purpose by the persons claiming to be so entitled; or
(b) if an address referred to in Article 22.5(a)(ii) has not been supplied to the Company, by giving the notice in a manner in which it might have been given if the death, bankruptcy or incapacity had not occurred.

PART 23 – RESTRICTION ON SHARE TRANSFER

23.1 Application

Article 23.2 does not apply to the Company if and for so long as it is a public company.

23.2 Consent required for transfer

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PART 24 - SPECIAL RIGHTS AND RESTRICTIONS

24.1 Preferred shares issuable in series

The Preferred shares may include one or more series and, subject to the Business Corporations Act , the directors may, by resolution, if none of the shares of that particular series are issued, alter the Articles of the Company and authorize the alteration of the Notice of Articles of the Company, as the case may be, to do one or more of the following:

(a) create a series of shares;
(b) create an identifying name for the shares of that series, or alter any such identifying name;
(c) determine the maximum number of shares of that series that the Company is authorized to issue, determine that there is no such maximum number, or alter any such determination; and
(d) attach special rights or restrictions to the shares of that series, or alter any such special rights or restrictions.

	Full Name and Signature of Director	Date of Signing
	BRUCE DAWSON-SCULLY	____, 2021

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SCHEDULE “M”

EARN-OUT PREFERRED SHARE PROVISIONS

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Schedule “A”

Part 24 - Special Rights and Restrictions

24.1 Definitions

(a) “ Common Shares ” means the common shares in the capital of the Company; and
(b) “ Preferred Shares ” means the Preferred shares in the capital of the Company, issuable in series.

24.2 Common Shares

(a) General. The voting, dividend and liquidation rights of the holders of Common Shares are subject to and qualified by the rights, powers and preferences of the holders of Preferred Shares.
(b) Voting. The holders of Common Shares are entitled to one vote for each Common Share held at all meetings of shareholders (and written actions in lieu of meetings).
(c) Dividends. The holders of Common Shares are entitled, subject to the rights, privileges, restrictions and conditions attaching to any other class or series of shares of the Company, to receive dividends if, as and when declared by the board of directors of the Company.
(d) Liquidation, Dissolution or Winding Up. The holders of the Common Shares are entitled, subject to the rights, privileges, restrictions and conditions attaching to any other class or series of shares of the Company, to receive the remaining property of the Company on a liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary.

24.3 Preferred shares issuable in series

(a) create a series of the shares;
(b) create an identifying name for the shares of that series, or alter any such identifying name;
(c) determine the maximum number of shares of that series that the Company is authorized to issue, determine that there is no such maximum number, or alter any such determination; and
(d) attach special rights or restrictions to the shares of that series, or alter any such special rights or restrictions.

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24.4 Series A Earn-Out Non-Voting, Redeemable, Convertible Preferred Shares (“Series A Shares”)

(a) Designation. There shall be a series of Preferred Shares that shall be designated as "Series A Earn-Out Non-Voting, Redeemable, Convertible Preferred Shares " (the " Series A Shares ") consisting of an unlimited number of shares. The rights, privileges, restrictions and conditions of the Series A Shares shall be as set forth herein.
(b) Defined Terms. The terms defined within the Series A Shares shall have the meaning specified and the following terms shall have the meanings indicated:

“ Acquisition Agreement ” means the Acquisition Agreement dated September 19, 2021 between the Company, Embark Health Inc., 1323977 B.C. Ltd., Bruce Dawson-Scully and the Vendors specified therein, as amended and restated from time to time and filed on SEDAR.

“ Conversion Rate ” means the number of Common Shares issuable upon the conversion of each Series A Share, calculated by dividing the Redemption Price by the VWAP Amount.

“ Earn-Out Amount ” the amount calculated for the Embark financial year ended 2022, calculated in accordance with Section 2.03(a) of the Acquisition Agreement.

“ Earn-Out Calculation Objection Notice ” means a notice, if any, delivered in accordance with Section 2.03(b) of the Acquisition Agreement.

“ Earn-Out Determination Date ” means the date upon which the determination of the Earn-Out Amount for the Embark financial year ended 2022 becomes final and binding in accordance with Section 2.03(b)(ii)] of the Acquisition Agreement (including any final resolution of any dispute raised in an Earn-Out Calculation Objection Notice).

“ Earn-Out Payment Date ” means a date not later than 20 Business Days following the Earn-Out Determination Date.

“ Embark ” means Embark Health Inc., the company formed by the amalgamation completed pursuant to the terms and conditions of the Acquisition Agreement.

“ Exchange ” means the Canadian Securities Exchange or such other stock exchange on which the Common Shares shall be listed.

“ Redemption Price ” means an amount equal to the quotient obtained by dividing the Earn-Out Amount by the number of Series A Shares issued and outstanding on the EarnOut Payment Date.

“ VWAP Amount ” means the price per Common Share based on the volume weighted average trading price of the Common Shares on the Exchange, calculated by dividing the total value by the total volume of Common Shares traded on the Exchange for the five trading days immediately preceding the Earn-Out Determination Date.

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(c) Voting. Holders of Series A Shares shall not be entitled to vote with respect to any and all matters presented to the shareholders of the Company for their action or consideration (whether at a meeting of shareholders of the Company, by written resolution of shareholders in lieu of a meeting or otherwise), except as provided by law.
(d) Dividends. Holders of Series A Shares shall not be entitled to receive dividends.
(e) Liquidation, Dissolution or Winding Up. Holders of Series A Shares shall not be entitled to receive any of the remaining property of the Company on a liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary.
(f) Earn-Out Notice.
(i) Earn-Out Notice. Not later than three days following the Earn-Out Determination Date, the Company shall deliver a notice to all holders of record of Series A Shares (the “ Earn-Out Notice ”) specifying the Earn-Out Amount and the Earn-Out Payment Date. If the Earn-Out Amount is a positive number, then the Company shall specify in the Earn-Out Notice whether the Earn-Out Amount will be settled by way of conversion of the Series A Shares into Common Shares, by redemption of the Series A Shares, or a combination of conversion and redemption. Any conversion or redemption shall be conducted in accordance with Sections (g) and (i), respectively.
(ii) Earn-Out Cancellation. If the Earn-Out Amount specified in the Earn-Out Notice is zero or a negative number, then on the Earn-Out Payment Date the Company shall cancel all Series A Shares for no consideration.
(g) Conversion Procedure. On the Earn-Out Payment Date (I) any outstanding Series A Shares specified for conversion in the Earn-Out Notice shall be converted into Common Shares, at the Conversion Rate, and (II) such shares may not be reissued by the Company. The Earn-Out Notice shall specify the place designated for mandatory conversion, if applicable. Upon receipt of such notice, each holder of Series A Shares in certificated form shall surrender his, her or its certificate or certificates for all Series A Shares (or, if such holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Company to indemnify the Company against any claim that may be made against the Company on account of the alleged loss, theft or destruction of such certificate) to the Company at the place designated in the notice. If so required by the Company, any certificates surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Company, duly signed by the registered holder or by his, her or its attorney duly authorized in writing. All rights with respect to the Series A Shares converted hereunder will terminate on the Earn-Out Payment Date (notwithstanding the failure of the holder or holders thereof to surrender any certificates at or before such time), except only the rights of the holders of Series A Shares, upon surrender of any certificate or certificates of such holders (or lost certificate affidavit and agreement) therefor, to receive the items provided for in the next sentence of this Section. As soon as practicable after the Earn-Out Payment Date and, if applicable, the surrender of any certificate or certificates (or lost certificate

CW17278805.2

affidavit and agreement) for Series A Shares, the Company shall issue and deliver to their holder, or to his, her or its nominees, a certificate or certificates for the number of full Common Shares issuable on conversion in accordance with these provisions. The converted Series A Shares shall be retired and cancelled and may not be reissued as shares of such class, and the Company may thereafter take such appropriate action (without the need for shareholder action) as may be necessary to reduce the authorized number of Series A Shares accordingly.

(h) Fractional Shares. No fractional Common Shares shall be issued upon conversion of the Series A Shares. In lieu of any fractional shares to which the holder would otherwise be entitled, the number of Common Shares to be issued upon conversion of the Series A Shares shall be rounded down to the next whole share.
(i) Redemption Procedure.
(i) Pursuant to the details specified in the Earn-Out Notice, the Company shall have the right to elect to redeem, out of funds legally available therefor, all or any portion of the then outstanding Series A Shares held by the holder of the Series A Shares (a " Redemption ") for a price per Series A Share equal to the Redemption Price. Any such Redemption shall occur not more than 20 days following delivery of the Earn-Out Notice (the " Redemption Date ") and the manner and place designated for surrender by the holder to the Company of its certificate or certificates representing the Series A Shares to be redeemed. Upon receipt of the Earn-Out Notice specifying a Redemption, the holder of Series A Shares shall be deemed to have elected to have that number of their Series A Shares so specified redeemed under this Section (i) and such election shall bind such holder of Series Shares.
(ii) On or before the Redemption Date, the holder of the Series A Shares shall surrender the certificate or certificates representing such Series A Shares to the Company, in the manner and place designated in the Earn-Out Notice, duly assigned or endorsed for transfer to the Company (or accompanied by duly executed share transfers relating thereto). Each surrendered certificate shall be cancelled, and the Company shall thereafter make payment of the applicable Redemption Price by certified cheque, bank draft or wire transfer to the registered holder of such certificate; provided that , if less than all the Series A Shares represented by a surrendered certificate are redeemed, then the balance of such Series A Shares shall be converted in accordance with Section (g).
(iii) If on the Redemption Date, the Redemption Price is paid (or tendered for payment) for any of the Series A Shares to be redeemed on such Redemption Date, then on such date all rights of the holder in the Series A Shares so redeemed and paid or tendered shall cease and such Series A Shares shall no longer be deemed issued and outstanding.
(j) Acceleration. Notwithstanding the foregoing, at any time the board of directors of the Company may, in its sole discretion, declare an acceleration of the Earn-Out Determination Date by delivering a notice to all holders of record of Series A Shares (the

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“ Accelerated Earn-Out Notice ”) in accordance with Section (f)(i), specifying (i) that the Earn-Out Amount is $2,761,104 (the “ Accelerated Earn-Out Amount ”) (ii) the Earn-Out Payment Date, and (iii) whether the Accelerated Earn-Out Amount will be settled by way of conversion of the Series A Shares, by redemption of the Series A Shares, or a combination of conversion and redemption. Any conversion or redemption shall be conducted in accordance with Sections (g) and (i), respectively, mutatis mutandi s.

(k) Communications. Except as otherwise provided herein, all notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee, if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email of a PDF document (with confirmation of transmission), if sent during normal business hours of the recipient and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent (i) to the Company, at its principal executive offices and (ii) to any shareholder, at such holder's address as it appears in the securities register of the Company (or at such other address for a shareholder as shall be specified in a notice given in accordance with this Section).

24.5 Series B Earn-Out Non-Voting, Redeemable, Convertible Preferred Shares (“Series B Shares”)

(a) Designation. There shall be a series of Preferred Shares that shall be designated as "Series B Earn-Out Non-Voting, Redeemable, Convertible Preferred Shares " (the " Series B Shares ") consisting of an unlimited number of shares. The rights, privileges, restrictions and conditions of the Series B Shares shall be as set forth herein.
(b) Defined Terms. The terms defined within the Series B Shares shall have the meaning specified and the following terms shall have the meanings indicated:

“ Conversion Rate ” means the number of Common Shares issuable upon the conversion of each Series A Share, calculated by dividing the Redemption Prcie by the VWAP Amount.

“ Earn-Out Amount ” the amount calculated for the Embark financial year ended 2023, calculated in accordance with Section 2.03(a) of the Acquisition Agreement.

“ Earn-Out Calculation Objection Notice ” means a notice, if any, delivered in accordance with Section 2.03(b) of the Acquisition Agreement.

“ Earn-Out Determination Date ” means the date upon which the determination of the Earn-Out Amount for the Embark financial year ended 2023 becomes final and binding

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in accordance with Section 2.03(b)(ii)] of the Acquisition Agreement (including any final resolution of any dispute raised in an Earn-Out Calculation Objection Notice).

“ Earn-Out Payment Date ” means a date not later than 20 Business Days following the Earn-Out Determination Date.

“ Embark ” means Embark Health Inc., the company formed by the amalgamation completed pursuant to the terms and conditions of the Acquisition Agreement.

“ Exchange ” means the Canadian Securities Exchange or such other stock exchange on which the Common Shares shall be listed.

“ Redemption Price ” means an amount equal to the quotient obtained by dividing the Earn-Out Amount by the number of Series A Shares issued and outstanding on the EarnOut Payment Date.

(c) Voting. Holders of Series B Shares shall not be entitled to vote with respect to any and all matters presented to the shareholders of the Company for their action or consideration (whether at a meeting of shareholders of the Company, by written resolution of shareholders in lieu of a meeting or otherwise), except as provided by law.
(d) Dividends. Holders of Series B Shares shall not be entitled to receive dividends.
(e) Liquidation, Dissolution or Winding Up. Holders of Series B Shares shall not be entitled to receive any of the remaining property of the Company on a liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary.
(f) Earn-Out Notice.
(i) Earn-Out Notice. Not later than three days following the Earn-Out Determination Date, the Company shall deliver a notice to all holders of record of Series A Shares (the “ Earn-Out Notice ”) specifying the Earn-Out Amount and the Earn-Out Payment Date. If the Earn-Out Amount is a positive number, then the Company shall specify in the Earn-Out Notice whether the Earn-Out Amount will be settled by way of conversion of the Series B Shares into Common Shares, by redemption of the Series B Shares, or a combination of conversion and redemption. Any conversion or redemption shall be conducted in accordance with Sections (g) and (i), respectively.
(ii) Earn-Out Cancellation. If the Earn-Out Amount specified in the Earn-Out Notice is zero or a negative number, then on the Earn-Out Payment Date the Company shall cancel all Series B Shares for no consideration.

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(g) Conversion Procedure. On the Earn-Out Payment Date (I) any outstanding Series B Shares specified for conversion in the Earn-Out Notice shall be converted into Common Shares, at the Conversion Rate, and (II) such shares may not be reissued by the Company. The Earn-Out Notice shall specify the place designated for mandatory conversion, if applicable. Upon receipt of such notice, each holder of Series B Shares in certificated form shall surrender his, her or its certificate or certificates for all Series B Shares (or, if such holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Company to indemnify the Company against any claim that may be made against the Company on account of the alleged loss, theft or destruction of such certificate) to the Company at the place designated in the notice. If so required by the Company, any certificates surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Company, duly signed by the registered holder or by his, her or its attorney duly authorized in writing. All rights with respect to the Series B Shares converted hereunder will terminate on the Earn-Out Payment Date (notwithstanding the failure of the holder or holders thereof to surrender any certificates at or before such time), except only the rights of the holders of Series B Shares, upon surrender of any certificate or certificates of such holders (or lost certificate affidavit and agreement) therefor, to receive the items provided for in the next sentence of this Section. As soon as practicable after the Earn-Out Payment Date and, if applicable, the surrender of any certificate or certificates (or lost certificate affidavit and agreement) for Series B Shares, the Company shall issue and deliver to their holder, or to his, her or its nominees, a certificate or certificates for the number of full Common Shares issuable on conversion in accordance with these provisions. The converted Series B Shares shall be retired and cancelled and may not be reissued as shares of such class, and the Company may thereafter take such appropriate action (without the need for shareholder action) as may be necessary to reduce the authorized number of Series A Shares accordingly.
(h) Fractional Shares. No fractional Common Shares shall be issued upon conversion of the Series B Shares. In lieu of any fractional shares to which the holder would otherwise be entitled, the number of Common Shares to be issued upon conversion of the Series B Shares shall be rounded down to the next whole share.

(i) Redemption Procedure.

(i) Pursuant to the details specified in the Earn-Out Notice, the Company shall have the right to elect to redeem, out of funds legally available therefor, all or any portion of the then outstanding Series A Shares held by the holder of the Series B Shares (a " Redemption ") for a price per Series B Share equal to the Redemption Price. Any such Redemption shall occur not more than 20 days following delivery of the Earn-Out Notice (the " Redemption Date ") and the manner and place designated for surrender by the holder to the Company of its certificate or certificates representing the Series B Shares to be redeemed. Upon receipt of the Earn-Out Notice specifying a Redemption, the holder of Series B Shares shall be deemed to have elected to have that number of their Series B Shares so specified redeemed under this Section (i) and such election shall bind such holder of Series Shares.

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(ii) On or before the Redemption Date, the holder of the Series B Shares shall surrender the certificate or certificates representing such Series B Shares to the Company, in the manner and place designated in the Earn-Out Notice, duly assigned or endorsed for transfer to the Company (or accompanied by duly executed share transfers relating thereto). Each surrendered certificate shall be cancelled, and the Company shall thereafter make payment of the applicable Redemption Price by certified cheque, bank draft or wire transfer to the registered holder of such certificate; provided that , if less than all the Series A Shares represented by a surrendered certificate are redeemed, then the balance of such Series B Shares shall be converted in accordance with Section (g).
(iii) If on the Redemption Date, the Redemption Price is paid (or tendered for payment) for any of the Series B Shares to be redeemed on such Redemption Date, then on such date all rights of the holder in the Series B Shares so redeemed and paid or tendered shall cease and such Series B Shares shall no longer be deemed issued and outstanding.
(j) Acceleration. Notwithstanding the foregoing, at any time the board of directors of the Company may, in its sole discretion, declare an acceleration of the Earn-Out Determination Date by delivering a notice to all holders of record of Series A Shares (the “ Accelerated Earn-Out Notice ”) in accordance with Section (f)(i), specifying (i) that the Earn-Out Amount is $3,220,069 (the “ Accelerated Earn-Out Amount ”) (ii) the Earn-Out Payment Date, and (iii) whether the Accelerated Earn-Out Amount will be settled by way of conversion of the Series A Shares, by redemption of the Series A Shares, or a combination of conversion and redemption. Any conversion or redemption shall be conducted in accordance with Sections (g) and (i), respectively, mutatis mutandi s.
(k) Communications. Except as otherwise provided herein, all notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee, if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email of a PDF document (with confirmation of transmission), if sent during normal business hours of the recipient and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent (i) to the Company, at its principal executive offices and (ii) to any shareholder, at such holder's address as it appears in the securities register of the Company (or at such other address for a shareholder as shall be specified in a notice given in accordance with this Section).

24.6 Series C Earn-Out Non-Voting, Redeemable, Convertible Preferred Shares (“Series C Shares”)

(a) Designation. There shall be a series of Preferred Shares that shall be designated as "Series C Earn-Out Non-Voting, Redeemable, Convertible Preferred Shares " (the " Series C Shares ") consisting of an unlimited number of shares. The rights, privileges, restrictions and conditions of the Series C Shares shall be as set forth herein.

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(b) Defined Terms. The terms defined within the Series C Shares shall have the meaning specified and the following terms shall have the meanings indicated:

“ Conversion Rate ” means the number of Common Shares issuable upon the conversion of each Series C Share, calculated by dividing the Redemption Price by the VWAP Amount.

“ Earn-Out Amount ” the amount calculated for the Embark financial year ended 2024, calculated in accordance with Section 2.03(a) of the Acquisition Agreement.

“ Earn-Out Calculation Objection Notice ” means a notice, if any, delivered in accordance with Section 2.03(b) of the Acquisition Agreement.

“ Earn-Out Determination Date ” means the date upon which the determination of the Earn-Out Amount for the Embark financial year ended 2024 becomes final and binding in accordance with Section 2.03(b)(ii)] of the Acquisition Agreement (including any final resolution of any dispute raised in an Earn-Out Calculation Objection Notice).

“ Earn-Out Payment Date ” means a date not later than 20 Business Days following the Earn-Out Determination Date.

“ Embark ” means Embark Health Inc., the company formed by the amalgamation completed pursuant to the terms and conditions of the Acquisition Agreement.

“ Exchange ” means the Canadian Securities Exchange or such other stock exchange on which the Common Shares shall be listed.

“ Redemption Price ” means an amount equal to the quotient obtained by dividing the Earn-Out Amount by the number of Series A Shares issued and outstanding on the EarnOut Payment Date.

(c) Voting. Holders of Series C Shares shall not be entitled to vote with respect to any and all matters presented to the shareholders of the Company for their action or consideration (whether at a meeting of shareholders of the Company, by written resolution of shareholders in lieu of a meeting or otherwise), except as provided by law.
(d) Dividends. Holders of Series C Shares shall not be entitled to receive dividends.

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(e) Liquidation, Dissolution or Winding Up. Holders of Series C Shares shall not be entitled to receive any o the remaining property of the Company on a liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary.
(f) Earn-Out Notice.
(i) Earn-Out Notice. Not later than three days following the Earn-Out Determination Date, the Company shall deliver a notice to all holders of record of Series C Shares (the “ Earn-Out Notice ”) specifying the Earn-Out Amount and the Earn-Out Payment Date. If the Earn-Out Amount is a positive number, then the Company shall specify in the Earn-Out Notice whether the Earn-Out Amount will be settled by way of conversion of the Series C Shares into Common Shares, by redemption of the Series A Shares, or a combination of conversion and redemption. Any conversion or redemption shall be conducted in accordance with Sections (g) and (i), respectively.
(ii) Earn-Out Cancellation. If the Earn-Out Amount specified in the Earn-Out Notice is zero or a negative number, then on the Earn-Out Payment Date the Company shall cancel all Series C Shares for no consideration.
(g) Conversion Procedure. On the Earn-Out Payment Date (I) any outstanding Series C Shares specified for conversion in the Earn-Out Notice shall be converted into Common Shares, at the Conversion Rate, and (II) such shares may not be reissued by the Company. The Earn-Out Notice shall specify the place designated for mandatory conversion, if applicable. Upon receipt of such notice, each holder of Series C Shares in certificated form shall surrender his, her or its certificate or certificates for all Series C Shares (or, if such holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Company to indemnify the Company against any claim that may be made against the Company on account of the alleged loss, theft or destruction of such certificate) to the Company at the place designated in the notice. If so required by the Company, any certificates surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Company, duly signed by the registered holder or by his, her or its attorney duly authorized in writing. All rights with respect to the Series C Shares converted hereunder will terminate on the Earn-Out Payment Date (notwithstanding the failure of the holder or holders thereof to surrender any certificates at or before such time), except only the rights of the holders of Series C Shares, upon surrender of any certificate or certificates of such holders (or lost certificate affidavit and agreement) therefor, to receive the items provided for in the next sentence of this Section. As soon as practicable after the Earn-Out Payment Date and, if applicable, the surrender of any certificate or certificates (or lost certificate affidavit and agreement) for Series C Shares, the Company shall issue and deliver to their holder, or to his, her or its nominees, a certificate or certificates for the number of full Common Shares issuable on conversion in accordance with these provisions. The converted Series C Shares shall be retired and cancelled and may not be reissued as shares of such class, and the Company may thereafter take such appropriate action (without the need for shareholder action) as may be necessary to reduce the authorized number of Series C Shares accordingly.

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(h) Fractional Shares. No fractional Common Shares shall be issued upon conversion of the Series C Shares. In lieu of any fractional shares to which the holder would otherwise be entitled, the number of Common Shares to be issued upon conversion of the Series C Shares shall be rounded down to the next whole share.
(i) Redemption Procedure.
(i) Pursuant to the details specified in the Earn-Out Notice, the Company shall have the right to elect to redeem, out of funds legally available therefor, all or any portion of the then outstanding Series C Shares held by the holder of the Series C Shares (a " Redemption ") for a price per Series C Share equal to the Redemption Price. Any such Redemption shall occur not more than 20 days following delivery of the Earn-Out Notice (the " Redemption Date ") and the manner and place designated for surrender by the holder to the Company of its certificate or certificates representing the Series C Shares to be redeemed. Upon receipt of the Earn-Out Notice specifying a Redemption, the holder of Series C Shares shall be deemed to have elected to have that number of their Series C Shares so specified redeemed under this Section (i) and such election shall bind such holder of Series Shares.
(ii) On or before the Redemption Date, the holder of the Series C Shares shall surrender the certificate or certificates representing such Series C Shares to the Company, in the manner and place designated in the Earn-Out Notice, duly assigned or endorsed for transfer to the Company (or accompanied by duly executed share transfers relating thereto). Each surrendered certificate shall be cancelled, and the Company shall thereafter make payment of the applicable Redemption Price by certified cheque, bank draft or wire transfer to the registered holder of such certificate; provided that , if less than all the Series A Shares represented by a surrendered certificate are redeemed, then the balance of such Series A Shares shall be converted in accordance with Section (g).
(iii) If on the Redemption Date, the Redemption Price is paid (or tendered for payment) for any of the Series C Shares to be redeemed on such Redemption Date, then on such date all rights of the holder in the Series C Shares so redeemed and paid or tendered shall cease and such Series C Shares shall no longer be deemed issued and outstanding.
(j) Acceleration. Notwithstanding the foregoing, at any time the board of directors of the Company may, in its sole discretion, declare an acceleration of the Earn-Out Determination Date by delivering a notice to all holders of record of Series A Shares (the “ Accelerated Earn-Out Notice ”) in accordance with Section (f)(i), specifying (i) that the Earn-Out Amount is $3,218,269 (the “ Accelerated Earn-Out Amount ”) (ii) the Earn-Out Payment Date, and (iii) whether the Accelerated Earn-Out Amount will be settled by way of conversion of the Series A Shares, by redemption of the Series A Shares, or a combination of conversion and redemption. Any conversion or redemption shall be conducted in accordance with Sections (g) and (i), respectively, mutatis mutandi s.

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(k) Communications. Except as otherwise provided herein, all notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee, if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email of a PDF document (with confirmation of transmission), if sent during normal business hours of the recipient and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent (i) to the Company, at its principal executive offices and (ii) to any shareholder, at such holder's address as it appears in the securities register of the Company (or at such other address for a shareholder as shall be specified in a notice given in accordance with this Section).

CW17278805.2

SCHEDULE “N”

VOTING SUPPORT AGREEMENT

Voting Agreement

This Voting Agreement (this " Agreement "), dated as of September ___,2021 is entered into between the undersigned shareholder (" Shareholder ") of Embark Health Inc., a corporation incorporated under the Business Corporations Act (Canada) (" Company ") and BevCanna Enterprises Inc., a corporation incorporated under the Business Corporations Act (British Columbia) (" Buyer ");

WHEREAS the Buyer intends to acquire all of the outstanding common shares of the Company (" Company Shares ") on the terms and subject to the conditions set forth in the acquisition agreement (the " Acquisition Agreement ") among the Company, the Buyer, 1323977 B.C. LTD., a wholly owned subsidiary of Embark (“ SubCo ”), Bruce Dawson-Scully, in his presence as shareholder representative and not in his/her personal capacity, and the Vendors;

WHEREAS the Shareholder is the registered and/or direct or indirect beneficial owner of, or exercises control or direction over: (i) the Company Shares (such Company Shares, together with any Company Shares acquired by the Shareholder during the term of this Agreement, being referred to in this Agreement as the " Subject Shares ") and (ii) the other securities (" Subject Securities ") of the Company as set forth below the Shareholder's signature on the signature page of this Agreement; and

WHEREAS as a condition to the willingness of the Buyer to enter into the Acquisition Agreement and incur the obligations set forth in the Acquisition Agreement, the Buyer has required that the Shareholder enter into this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Definitions and Interpretive Provisions.

In this Agreement:

(a) all terms used and not defined herein that are defined in the Acquisition Agreement shall have the respective meanings given to them in the Acquisition Agreement;

(b) the division of this Agreement into Sections and the insertion of headings are for convenient reference only and do not affect the construction or interpretation of this Agreement;

(c) any reference to gender includes all genders and words importing the singular number include the plural and vice versa;

(d) if the date on which any action is required to be taken by a party to this Agreement is not a Business Day in the place where the action is required to be taken,

CW17195218.4

such action shall be required to be taken on the next succeeding day which is a Business Day in such place;

(e) the words "including", "includes" and "include" mean "including (or includes or include) without limitation";

(f) the term "Agreement" and any reference in this Agreement to this Agreement or any other agreement or document includes, and is a reference to, this Agreement or such other agreement or document as it may have been, or may from time to time be, amended, restated, replaced, supplemented or novated and includes all schedules to it; and

(g) any reference to a particular statute refers to such statute and all rules and regulations made under it, as it or they may have been or may from time to time be amended, consolidated, replaced or re-enacted.

2. Representations and Warranties of the Shareholder.

The Shareholder represents and warrants to the Buyer as follows as at the date of this Agreement and immediately prior to the time at which the Subject Shares are acquired pursuant to the Acquisition and acknowledges that the Buyer is relying upon such representations and warranties in connection with the matters contemplated by this Agreement:

(a) Organization and Authority and Capacity . If the Shareholder is not an individual: (i) the Shareholder is a corporation or entity incorporated or organized, as applicable, and existing under the laws of its jurisdiction of incorporation or organization; (ii) the execution and delivery of this Agreement by the Shareholder and the consummation by it of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate action and no other corporate proceedings on the part of the Shareholder are necessary to authorize this Agreement or the transactions contemplated by this Agreement; and (iii) the Shareholder has the requisite corporate power and authority to enter into and perform its obligations under this Agreement. If the Shareholder is an individual, the Shareholder is of the age of majority and has the capacity to enter into and perform its obligations under this Agreement.

(b) Execution and Binding Obligation . This Agreement has been duly executed and delivered by the Shareholder and constitutes a legal, valid and binding agreement of the Shareholder enforceable against it in accordance with its terms subject only to any limitation on bankruptcy, insolvency or other laws 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.

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(c) Non-Contravention . The execution and delivery of this Agreement by the Shareholder, the performance of its obligations under this Agreement and the consummation of the transactions contemplated by this Agreement do 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) contravene, conflict with, or result in the violation of: (i) the articles, by-laws or other constating documents of the Shareholder (as applicable); (ii) any other agreement or instrument to which the Shareholder is a party or by which the Shareholder or any of the Shareholder's property or assets is bound; and (iii) any applicable laws.

(d) Ownership of Subject Shares and Subject Securities . The Shareholder is the legal and beneficial owner of, or the beneficial owner exercising control or direction over, all of the Subject Shares and the Subject Securities, free and clear of any Liens. The Subject Shares and the Subject Securities are the only securities of the Company owned, directly or indirectly, or over which control or direction is exercised by the Shareholder. The Shareholder has sole dispositive power and the sole power to agree to the matters set forth in this Agreement with respect to the Subject Shares and the Subject Securities. None of the Subject Shares is subject to any agreement, Acquisition or restriction with respect to the voting thereof, except as contemplated by this Agreement. Except for the Company’s unanimous shareholders’ agreement dated May 28, 2018 and for the Subject Securities, the Shareholder has no agreement or option or right or privilege (whether by law, pre-emptive or contractual) capable of becoming an agreement or option, for the purchase or acquisition or transfer to the Shareholder of additional securities of the Company. No Person has any agreement or option, or any right or privilege (whether by law, pre-emptive or contractual), capable of becoming an agreement or option for the purchase, acquisition or transfer from the Shareholder of any of the Subject Shares or the Subject Securities except pursuant to this Agreement and, in the case of the Subject Securities, as expressly provided in the terms of the Company's plans governing such securities.

(e) Litigation . There is no claim, action, lawsuit, arbitration, mediation or other Proceeding in progress, pending or ongoing, or, to the knowledge of the Shareholder, threatened against or affecting the Shareholder that would reasonably be expected to have an adverse impact on the validity of this Agreement or any action taken or to be taken by the Shareholder in connection with this Agreement.

3. Representations and Warranties of the Buyer.

The Buyer represents and warrants to the Shareholder as follows as at the date of this Agreement and immediately prior to the time at which the Subject Shares are acquired pursuant to the Acquisition and acknowledges that the Shareholder is relying upon such representations and warranties in connection with the matters contemplated by this Agreement:

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(a) Organization and Authority . The Buyer is a corporation incorporated and existing under the laws of British Columbia and has the requisite corporate power and authority to enter into and perform its obligations under this Agreement. The execution and delivery of this Agreement by the Buyer and the consummation by it of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate action and no other corporate proceedings on the part of the Buyer are necessary to authorize this Agreement or the transactions contemplated by this Agreement.

(b) Execution and Binding Obligation . This Agreement has been duly executed and delivered by the Buyer and constitutes a legal, valid and binding agreement of the Buyer enforceable against it in accordance with its terms subject only to any limitation on bankruptcy, insolvency or other laws 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.

4. Covenants of the Shareholder.

The Shareholder covenants and agrees that during the period from the date of this Agreement until the earlier of the Effective Time and the date on which this Agreement is terminated in accordance with its terms, unless otherwise required or expressly permitted by this Agreement:

(a) Agreement to Vote in Favour . At any meeting of security holders of the Company called to vote upon the Acquisition (including the Embark Meeting) or any of the other transactions contemplated by the Acquisition Agreement 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 Acquisition or any of the transactions contemplated by the Acquisition Agreement is sought, the Shareholder shall cause its Subject Shares and Subject Securities (which have a right to vote at such meeting) to be counted as present (in person or by proxy) for purposes of establishing quorum and shall vote (or cause to be voted) its Subject Shares and Subject Securities (which have a right to vote at such meeting): (i) in favour of the approval of the Acquisition and each of the other transactions contemplated by the Acquisition Agreement (including the Embark Resolution) and (ii) in favour of any other matter necessary for the consummation of the Acquisition or any other transaction contemplated by the Acquisition Agreement.

(b) Agreement to Vote Against . At any meeting of security holders of the Company (including the Embark Meeting) or at any adjournment or postponement thereof or in any other circumstance upon which a vote, consent or other approval of all or some of the security holders of the Company is sought (including by written consent in lieu of a meeting), the Shareholder shall cause its Subject Shares and Subject Securities (which have a right to vote at such meeting) to be counted as present (in person or by proxy)

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for purposes of establishing quorum and shall vote (or cause to be voted) its Subject Shares and Subject Securities (which have a right to vote at such meeting) against: (i) any Acquisition Proposal other than the Acquisition and (ii) any action, proposal, transaction or agreement that could reasonably be expected to (A) result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Acquisition Agreement or of the Shareholder under this Agreement or (B) impede, interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the Acquisition or the fulfillment of the Buyer's or the Company's conditions under the Acquisition Agreement or change in any manner the voting rights of any class of shares of the Company (including any amendments to the Company's articles or by-laws).

(c) Restriction on Transfer . The Shareholder agrees not to directly or indirectly: (i) sell, transfer, assign, gift-over, grant a participation interest in, option, pledge, hypothecate, grant a security interest in or otherwise convey or encumber (each, a " Transfer "), or enter into any agreement, option or other Acquisition with respect to the Transfer of, any of its Subject Shares or Subject Securities to any Person other than pursuant to the Acquisition Agreement or (ii) grant any proxies or power of attorney, deposit any of its Subject Shares or Subject Securities into any voting trust or enter into any voting arrangement, whether by proxy, voting agreement or otherwise, with respect to any of its Subject Shares or Subject Securities.

(d) Additional Company Shares . The Shareholder: (i) agrees promptly to notify the Buyer of any new Company Shares or Subject Securities acquired by the Shareholder after the execution of this Agreement and (ii) acknowledges that any such new Company Shares or Subject Securities will be subject to the terms of this Agreement as though owned by the Shareholder on the date of this Agreement.

(e) Delivery of Proxy . The Shareholder agrees that it will, on or before the fifth Business Day prior to the Embark Meeting: (i) with respect to any Subject Shares (and any other Subject Securities entitled to vote) that are registered in the name of the Shareholder, the Shareholder shall deliver or cause to be delivered, in accordance with the instructions set out in the Embark Circular and with a copy to the Buyer concurrently with such delivery, a duly executed proxy or proxies directing the holder of such proxy or proxies to vote in favour of the approval of the Acquisition and each of the other transactions contemplated by the Acquisition Agreement (including the Embark Resolution) and (ii) with respect to any Subject Shares (and any other Subject Securities entitled to vote) that are beneficially owned by the Shareholder but not registered in the name of the Shareholder, the Shareholder shall deliver or cause to be delivered voting instructions to the intermediary through which the Shareholder holds its beneficial interest in the Shareholder's Subject Shares (and any other Subject Securities entitled to vote), with a copy to the Buyer concurrently, instructing that the Shareholder's Subject Shares (and any other Subject Securities entitled to vote) be voted in favour of the approval of the Acquisition and each of the other transactions

CW17195218.4

contemplated by the Acquisition Agreement. Such proxy or proxies shall name those individuals as may be designated by the Company in the Company Circular and such proxy or proxies or voting instructions shall not be revoked, withdrawn or modified without the prior written consent of the Buyer.

(f) Non-Solicitation . If the Shareholder is a representative of the Company or any of its subsidiaries, the Shareholder hereby acknowledges and agrees to comply with the terms of Article XI of the Acquisition Agreement.

(g) Other Covenants . The Shareholder hereby:
(i) agrees not to exercise any dissent rights (as set out in Section 3.20 of the Acquisition Agreement) with respect to the Acquisition;
(ii) consents to: (A) details of, or a summary of, this Agreement being set out in any news release, information circular and court documents or other public disclosure produced by the Company or the Buyer in connection with the transactions contemplated by this Agreement and the Acquisition Agreement and (B) this Agreement being made publicly available, including by filing on SEDAR; and
(iii) acknowledges and agrees that a summary of the negotiations leading to the execution and delivery of this Agreement may appear in the Embark Circular and in any other public disclosure document required by any applicable laws and further agrees that it will, as promptly as practicable, notify the Buyer of any required corrections with respect to any written information supplied by it specifically for use in any such disclosure documents if and to the extent that the Shareholder becomes aware that any such information shall have become false or misleading in any material respect.

5. Termination.

This Agreement shall terminate upon the earliest to occur of:

(a) the written agreement of the Buyer and the Shareholder;

(b) notice being delivered to the Buyer if, without the prior written consent of the Shareholder, there is any decrease in the amount of, or change in the form of, the consideration payable for the outstanding Company Shares as set out in the Acquisition Agreement; provided that, a decrease in the market price of the Buyer common shares will not constitute a decrease in the amount of the consideration payable for the outstanding Company Shares as set out in the Acquisition Agreement;

CW17195218.4

(c) the Effective Time; and
(d) the termination of the Acquisition Agreement in accordance with its terms.

6. No Agreement as Director or Officer.

The Buyer acknowledges that the Shareholder is bound hereunder solely in its capacity as a security holder of the Company and, if the Shareholder is a director or officer of the Company, that the provisions hereof shall not be deemed or interpreted to bind the Shareholder in his or her capacity as a director or officer of the Company. Nothing in this Agreement shall: (a) limit or affect any actions or omissions taken by the Shareholder in his or her capacity as a director or officer of the Company, including in exercising rights under the Acquisition Agreement and no such actions or omissions shall be deemed a breach of this Agreement or (b) be construed to prohibit, limit or restrict the Shareholder from fulfilling his or her fiduciary duties as a director or officer of the Company.

7. Injunctive Relief.

The parties to this Agreement 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 to this Agreement shall be entitled to injunctive and other equitable relief to prevent breaches or threatened 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 remedies to which the parties to this Agreement may be entitled at law or in equity.

8. Entire Agreement.

This Agreement constitutes the entire agreement between parties hereto 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 hereto.

9. Amendment and Waiver .

This Agreement may not be amended or supplemented, and no provisions hereof may be modified or waived, except by an instrument in writing signed by both of the parties hereto. No waiver of any provisions hereof by either party shall be deemed a waiver of any other

CW17195218.4

provisions hereof by such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof by such party.

10. Notices.

Any notice or other communication given regarding the matters contemplated in this Agreement will be sufficient if in writing and (a) hand delivered, (b) sent by certified or registered mail, (c) sent by express courier or (d) if notice is also contemporaneously sent by one of the other methods, sent by facsimile or email, and addressed as follows:

If to the Buyer: BevCanna Enterprises, Inc. Address: PO Box 33957, Vancouver, BC V6J 4L7 Attention: John Campbell, CFO Email: [email protected]

If to the Shareholder, to the address or facsimile number or email address set forth for Shareholder on the signature page hereof.

Any notice or other communication is deemed to be given and received on the day on which it was delivered or, in the case of notices or other communications transmitted by facsimile or email, transmitted (or if such day is not a Business Day or if such notice or communication was delivered or transmitted after 5:00 p.m. (local time in the place of receipt) on the next following Business Day).

11. Miscellaneous .

(a) This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein.

(b) Each of the parties hereto irrevocably attorns and submits to the exclusive jurisdiction of the courts of the Province of British Columbia and waives objection to the venue of any proceeding in such court or that such court provides an inconvenient forum.

(c) 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 provision is illegal, invalid or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable

CW17195218.4

manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.

(d) Subject to the provisions of this Agreement, the parties hereto will, from time to time, do all acts and things and execute and deliver all such further documents and instruments, as the other party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.

(e) Time is of the essence in this Agreement.

(f) Each of the Shareholder and the Buyer will pay its own expenses (including the fees and disbursements of legal counsel and other advisers) incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated by this Agreement.

(g) This Agreement will be binding upon and enure to the benefit of the parties hereto and their successors and permitted assigns. Neither party to this Agreement may assign its rights or obligations under this Agreement without the prior written consent of the other party hereto; provided, however, that, the Buyer may assign all or any part of its rights under this Agreement to one or more of the Buyer's direct or indirect wholly owned subsidiaries, but no such assignment shall relieve the Buyer of its obligations under this Agreement. No assignment shall relieve the assigning party of any of its obligations hereunder.

(h) This Agreement may be executed in any number of counterparts (including counterparts by email) and all such counterparts taken together shall be deemed to constitute one and the same instrument. The parties to this Agreement shall be entitled to rely upon delivery of an executed PDF or similar executed electronic copy of this Agreement, and such PDF or similar executed electronic copy shall be legally effective to create a valid and binding agreement between the parties hereto.

[SIGNATURE PAGE FOLLOWS]

CW17195218.4

IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written above.

BevCanna Enterprises, Inc.

By: ___

Name:

Title:

[SHAREHOLDER]

By: ___

Name:

Number of Company Shares Beneficially Owned as of the Date of this Agreement:

[Number of Embark Options Beneficially Owned as of the Date of this Agreement:]

[Number of  Beneficially Owned as of the Date of this Agreement:]

Address:

Facsimile:

Email:

CW17195218.4

AI assistant

Forte Group Holdings Inc. — M&A Activity 2021

47683_rns_2021-09-21_acca8416-a6b1-4684-bde4-f0e0760e296e.PDF

ACQUISITION AGREEMENT

ARTICLE I DEFINITIONS AND MISCELLANEOUS

ARTICLE II PURCHASE PRICE & ADJUSTMENTS

(a) Closing Adjustment.

(b) Post-Closing Adjustment.

(b) Procedures Applicable to Determination of the Earn-Out Payments.

ARTICLE III AMALGAMATION AND RELATED MATTERS

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND SUBCO

ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY

(g) the Incentive Agreements,

ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE VENDORS

ARTICLE VII SURVIVAL OF REPRESENTATIONS AND WARRANTIES

ARTICLE VIII COVENANTS OF THE COMPANY

ARTICLE IX COVENANTS OF THE PURCHASER

ARTICLE X COVENANTS OF SUBCO

ARTICLE XI ADDITIONAL COVENANTS REGARDING NON-SOLICITATION

ARTICLE XII CONDITIONS PRECEDENT

ARTICLE XIII CLOSING

ARTICLE XIV TERM AND TERMINATION

ARTICLE XV INDEMNIFICATION

15.05 Caps for Breaches of Representations and Warranties.

15.06 Satisfaction/Payment of Indemnity.

15.07 Third Party Claims Procedure.

ARTICLE XVI GENERAL

16.07 Interpretation.

EMBARK HEALTH INC.

BEVCANNA ENTERPRISES INC.

1323977 B.C. LTD.

Schedule "A"

EMBARK RESOLUTION

Schedule “B”

Schedule “C”

FORMS OF CLOSING ESCROW AGREEMENT AND INDEMNITY ESCROW AGREEMENT

CLOSING ESCROW AGREEMENT

THE UNDERSIGNED SHAREHOLDER REPRESENTATIVE

WHEREAS:

ARTICLE 1 INTERPRETATION

ARTICLE 2 DEPOSIT INTO ESCROW

ARTICLE 3 ESCROW PROVISIONS

ARTICLE 4 OTHER ESCROW PROVISIONS

ARTICLE 5

VOTING RIGHTS AND DIVIDENDS

ARTICLE 6 ESCROW AGENT

ARTICLE 7 FEES

ARTICLE 8 OTHER CONTRACTUAL ARRANGEMENTS

ARTICLE 9 GENERAL

BEVCANNA ENTERPRISES INC.

OLYMPIA TRUST COMPANY

SIGNATURE PAGES FOR THE SHAREHOLDER TO FOLLOW.

SHAREHOLDER REPRESENTATIVE SIGNATURE PAGE

REGISTER OF SHARHOLDERS

INDEMNITY ESCROW AGREEMENT

ARTICLE I INTERPRETATION

1.1 Defined Terms

1.2

Currency

1.3 Choice of Law

1.4 Interpretation Not Affected by Headings or Party Drafting

1.5

Number and Gender

1.6 Reference to Time and Day

1.7 Time of Essence

1.8 Actions on Non-Business Days

1.9 Entire Agreement

ARTICLE II APPOINTMENT OF ESCROW AGENT AND DEPOSIT AND RETENTION OF ESCROWED SHARES

2.1 Appointment of Escrow Agent

2.2

Deposit and Retention of Escrow Funds

ARTICLE III RELEASE OF ESCROWED SHARES

3.1 Release Upon Joint Instruction, Claim Notice or Final Decision

ARTICLE IV LIABILITY AND INDEMNIFICATION

4.1 Responsibility of Escrow Agent; Indemnification

4.2 Privacy and Anti-Money Laundering

ARTICLE V TERMINATION

5.1 Termination of Agreement

5.2 Resignation of Escrow Agent

(the “ Resignation Date ”).

Forte Group Holdings Inc. M&A Activity 2021