Next Hydrogen Solutions Inc. - Merger & Acquisition 2021

AMALGAMATION AGREEMENT

AMONG:

BIOHEP TECHNOLOGIES LTD.

AND:

2819845 ONTARIO INC.

AND:

1291549 B.C. LTD.

AND:

NEXT HYDROGEN CORPORATION

PART 1 INTERPRETATION .................................................................................................................................... 2 DEFINITIONS .............................................................................................................................................................. 2 INTERPRETATION ....................................................................................................................................................... 8 EXHIBITS .................................................................................................................................................................... 9 PART 2 THE AMALGAMATION ............................................................................................................................ 9 AGREEMENT TO AMALGAMATE ................................................................................................................................. 9 EFFECT OF AMALGAMATION ...................................................................................................................................... 9 NAME ....................................................................................................................................................................... 10 REGISTERED OFFICE ................................................................................................................................................ 10 AUTHORIZED CAPITAL AND RESTRICTIONS ON SHARE TRANSFERS ......................................................................... 10 FISCAL YEAR ........................................................................................................................................................... 10 BUSINESS ................................................................................................................................................................. 10 INITIAL DIRECTORS OF AMALCO .............................................................................................................................. 10 INITIAL OFFICERS OF AMALCO................................................................................................................................. 11 DIRECTORS AND OFFICERS OF BIOHEP POST-CLOSING ............................................................................................ 11 EXCHANGE OF SUBCO SHARES AND NEXT HYDROGEN SHARES .............................................................................. 11 CONVERTIBLE SECURITIES ....................................................................................................................................... 12 DISSENTING SHAREHOLDERS ................................................................................................................................... 12 COMPLETION OF THE AMALGAMATION AND EFFECTIVE DATE ................................................................................ 12 ACKNOWLEDGMENT OF ESCROW AND RESALE RESTRICTIONS ................................................................................ 12 PART 3 COVENANTS ............................................................................................................................................. 13 MUTUAL COVENANTS .............................................................................................................................................. 13 ADDITIONAL COVENANTS OF BIOHEP AND THE BIOHEP SUBSIDIARIES ................................................................... 16 ADDITIONAL COVENANTS OF NEXT HYDROGEN ...................................................................................................... 17 PART 4 REPRESENTATIONS AND WARRANTIES ......................................................................................... 18 REPRESENTATIONS AND WARRANTIES OF BIOHEP AND BIOHEP SUBSIDIARIES ....................................................... 18 REPRESENTATIONS AND WARRANTIES OF NEXT HYDROGEN ................................................................................... 23 SURVIVAL OF REPRESENTATION AND WARRANTIES ................................................................................................ 30 PART 5 AGREEMENTS .......................................................................................................................................... 30 NEXT HYDROGEN RESOLUTION AND TRANSACTION SUMMARY .............................................................................. 30 PROPOSED TRANSACTION ........................................................................................................................................ 31 LISTING APPLICATION .............................................................................................................................................. 31 PREPARATION OF FILINGS ........................................................................................................................................ 31 BIOHEP CONSOLIDATION ......................................................................................................................................... 33 BIOHEP ARRANGEMENT .......................................................................................................................................... 33 CONCURRENT FINANCING ........................................................................................................................................ 33 NAME CHANGE ........................................................................................................................................................ 33 PART 6 INDEMNIFICATION ................................................................................................................................ 34 INDEMNIFICATION BY NEXT HYDROGEN.................................................................................................................. 34 INDEMNIFICATION BY BIOHEP ................................................................................................................................. 34 LIMITATION ON INDEMNIFICATION .......................................................................................................................... 35 PROCEDURE FOR INDEMNIFICATION ......................................................................................................................... 35

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SOLE REMEDY ......................................................................................................................................................... 36

PART 7 CONDITIONS PRECEDENT ................................................................................................................... 36 MUTUAL CONDITIONS PRECEDENT .......................................................................................................................... 36 ADDITIONAL CONDITIONS TO OBLIGATIONS OF BIOHEP AND SUBCO ...................................................................... 38 ADDITIONAL CONDITIONS TO OBLIGATIONS OF NEXT HYDROGEN .......................................................................... 39 NOTICE AND EFFECT OF FAILURE TO COMPLY WITH CONDITIONS ........................................................................... 41 SATISFACTION OF CONDITIONS ................................................................................................................................ 41 PART 8 AMENDMENT ........................................................................................................................................... 41 AMENDMENT ........................................................................................................................................................... 41 PART 9 TERMINATION ......................................................................................................................................... 42 TERMINATION .......................................................................................................................................................... 42 PART 10 GENERAL ................................................................................................................................................. 42 NOTICES ................................................................................................................................................................... 42 BINDING EFFECT ...................................................................................................................................................... 43 ASSIGNMENT............................................................................................................................................................ 43 ENTIRE AGREEMENT ................................................................................................................................................ 44 PUBLIC COMMUNICATIONS ...................................................................................................................................... 44 NO SHOP .................................................................................................................................................................. 44 COSTS ...................................................................................................................................................................... 45 CONFIDENTIALITY ................................................................................................................................................... 45 SEVERABILITY ......................................................................................................................................................... 46 FURTHER ASSURANCES ............................................................................................................................................ 46 TIME OF ESSENCE .................................................................................................................................................... 46 APPLICABLE LAW AND ENFORCEMENT .................................................................................................................... 47 WAIVER ................................................................................................................................................................... 47 COUNTERPARTS ....................................................................................................................................................... 47

EXHIBIT “A” – FORM OF ARTICLES OF AMALCO EXHIBIT “B” – FORM OF AMALGAMATION APPLICATION EXHIBIT “C” – FORM OF AMALGAMATION RESOLUTION

AMALGAMATION AGREEMENT

THIS AMALGAMATION AGREEMENT is dated as of the 3[rd] day of March, 2021.

AMONG:

BIOHEP TECHNOLOGIES LTD. , a corporation incorporated under the laws of the Province of British Columbia

(“ BioHep ”);

AND:

2819845 ONTARIO INC. , corporation incorporated under the laws of the Province of Ontario

(“ SubCo ”);

AND:

1291549 B.C. LTD. , a corporation incorporated under the laws of the Province of British Columbia

(“ POA SubCo ”);

AND:

NEXT HYDROGEN CORPORATION , a corporation incorporated under the laws of the Province of Ontario

(“ Next Hydrogen ”);

WHEREAS:

(A) It is intended that Next Hydrogen, and SubCo, a wholly-owned subsidiary of BioHep, will amalgamate and form one corporation under the provisions of the OBCA (the “ Amalgamation ”);

(B) BioHep is a reporting issuer in the provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Quebec and upon completion the of Amalgamation it is intended that the common shares of BioHep will be listed on the Exchange;

(C) Upon the Amalgamation taking effect, shareholders of Next Hydrogen will receive common shares of BioHep in the proportion and to the extent set out herein;

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

PART 1 INTERPRETATION

Definitions

1.1 In this Agreement, the following defined terms have the meanings hereinafter set forth:
(a) “ Action ” means, with respect to any Person, any litigation, legal action, lawsuit, claim, audit, arbitration or other proceeding (whether civil, administrative, quasicriminal or criminal) before any Governmental Authority against such Person or its business or affecting any of its assets;
(b) “ Affiliate ” has the meaning ascribed thereto in the BCBCA;
(c) “ Agreement ” means this Amalgamation Agreement (including the exhibits hereto) as supplemented, modified or amended, and not to any particular article, section, schedule, exhibit or other portion hereof;
(d) “ Amalco ” means the amalgamated corporation continuing from the Amalgamation;
(e) “ Amalco Shares ” means the common shares in the capital of Amalco;
(f) “ Amalgamation ” means the amalgamation of SubCo and Next Hydrogen under the provisions of the OBCA on the terms and conditions set forth in this Agreement;
(g) “ Amalgamation Application ” means the amalgamation application to be sent to the Director, as contemplated by the OBCA, in substantially the form set out in Exhibit “B” hereto;
(h) “ Amendment ” means the amendment to the Articles of BioHep to remove the consent to transfer restriction in Section 26.3 of the Articles of BioHep;
(i) “ Applicable Canadian Securities Laws ” means, collectively, and as the context may require, the applicable securities legislation of each of the provinces and territories of Canada, and the rules, regulations, instruments, orders and policies published and/or promulgated thereunder, as such may be amended from time to time prior to the Effective Date;
(j) “ Applicable Laws ” means, in the context that refers to one or more Persons, any domestic or foreign, federal, state, provincial or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation,
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order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority, and any terms and conditions of any grant of approval, permission, authority or license of any Governmental Authority, that is binding upon or applicable to such Person or Persons or its or their business, undertaking, property or securities and emanate from a Person having jurisdiction over the Person or Persons or its or their business, undertaking, property or securities;

(k) “ Arrangement Agreement ” means the arrangement agreement dated March 3, 2021, entered into between BioHep and POA SubCo;
(l) “ Articles ” means the Articles of Amalco to be in substantially the form set out in Exhibit “A” to this Agreement;
(m) “ BCBCA ” means the Business Corporations Act (British Columbia), as amended, including the regulations promulgated thereunder;
(n) “ BioHep ” means BioHep Technologies Ltd., a corporation existing under the laws of the Province of British Columbia;
(o) “ BioHep Arrangement ” means the arrangement of BioHep and POA SubCo under the provisions of Section 288 of the BCBCA, on the terms and conditions set forth in the Plan of Arrangement, subject to any amendments or variations thereto made in accordance with the terms of the Plan of Arrangement and the Arrangement Agreement;
(p) “ BioHep Consolidation ” means the consolidation of the BioHep Shares on the basis of one post-consolidation share for every 13.3 pre-consolidation share;
(q) “ BioHep Options ” means options to acquire BioHep Shares;
(r) “ BioHep Shareholders ” means the holders of BioHep Shares;
(s) “ BioHep Shares ” means the common shares in the capital of BioHep;
(t) “ BioHep Subsidiaries ” means SubCo and POA Subco;
(u) “ Business ” means the business and activities carried on by Next Hydrogen;
(v) “ Business Day ” means a day other than a Saturday, Sunday or other day when banks in the City of Vancouver, British Columbia or the City of Toronto, Ontario, are not generally open for business;
(w) “ Claims ” means any and all debts, costs, expenses, liabilities, obligations, losses and damages, penalties, proceedings, actions, suits, assessments, reassessments or claims of whatsoever nature or kind including regulatory or administrative (whether or not under common law, on the basis of contract, negligence, strict or absolute liability or liability in tort, or arising out of requirements of Applicable
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Laws), imposed on, incurred by, suffered by, or asserted against any Person or any property, absolute or contingent, and, except as otherwise expressly provided herein, includes all reasonable out-of-pocket costs, disbursements and expenses paid or incurred by such Person in defending any action;

(x) “ Concurrent Financing ” means a private placement of Next Hydrogen and/or SubCo, as determined by Next Hydrogen, which is anticipated to be completed at a minimum price of $2.00 per security;
(y) “ Constating Documents ” means as to each of the Parties, its respective certificate of incorporation, notice of articles, articles and bylaws, as applicable, as in effect as of the date of this Agreement;
(z) “ Corporate Records ” means, the corporate records of each of the Parties, including its respective Constating Documents, share registers, registers of directors, list of bank accounts and signing authorities and minutes of shareholders’ and directors’ meetings;
(aa)
“ Director ” means the director appointed under Section 278 of the OBCA;
(bb) “ Dissenting Shareholder ” means a registered holder of Next Hydrogen Shares who has validly exercised its dissent rights in respect of the Amalgamation and transactions related thereto under the applicable provisions of the OBCA;
(cc) “ Effective Date ” means the effective date of the Amalgamation as set forth in the Certificate of Amalgamation issued to Amalco;
(dd) “ Effective Time ” means 12:02 a.m. (Vancouver time) on the Effective Date, or such other time as the Parties agree to in writing before the Effective Date;
(ee) “ Encumbrances ” means any encumbrance of any kind whatsoever and includes any pledge, lien, charge, security interest, lease, title retention agreement, mortgage, hypothec, restriction, royalty, right of first refusal, development or similar agreement, option or adverse claim or encumbrance of any kind or character whatsoever or howsoever arising, and any right or privilege capable of becoming any of the foregoing;
(ff)
“ Exchange ” means the TSX Venture Exchange;
(gg) “ Final Exchange Bulletin ” means the Exchange bulletin which is issued following completion of the Proposed Transaction and the submission of all required documentation and that evidences the final Exchange acceptance of the listing of the Post-Consolidation BioHep Shares;
(hh) “ Governmental Authority ” means any federal, state, provincial and municipal government, regulatory authority, governmental department, ministry, agency, commission, bureau, official, minister, crown corporation, court, board, tribunal,
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stock exchange, dispute settlement panel or body or other law, rule or regulation-making entity having jurisdiction;

(ii) “ IFRS ” means International Financial Reporting Standards applicable as of the date of the financial statements, document or event in question;
(jj) “ Intellectual Property ” means all trade or brand names, business names, trademarks, service marks, copyrights, patents, patent rights, licenses, industrial designs, know-how (including trade secrets and other unpatented or unpatentable proprietary or confidential information, systems or procedures), computer software, inventions, designs and other industrial or intellectual property of any nature whatsoever;
(kk) “ ITA ” means the Income Tax Act (Canada), as amended, including the regulations promulgated thereunder, as amended from time to time;
(ll) “ Licensed Intellectual Property ” means any Intellectual Property owned by a person other than Next Hydrogen and used by Next Hydrogen pursuant to a licence, sub licence, lease, sub-lease, royalty, conditional sale, strategic alliance or other similar arrangement;
(mm) “ Listing Application ” means the TSXV Form 2B - Listing Application to be filed by BioHep in respect of the Proposed Transaction pursuant to the policies of the Exchange;
(nn) “ Material Adverse Change ” or “ Material Adverse Effect ” means, with respect to a Person, any matter or action that has an effect or change that is, or would reasonably be expected to be, material and adverse to the business, results of operations, assets, capitalization, financial condition, rights, liabilities or prospects, contractual or otherwise, of such Person and its subsidiaries, if applicable, taken as a whole, other than any matter, action, effect or change relating to or resulting from: (i) a matter that has been publicly disclosed prior to the date of this Agreement or otherwise disclosed in writing by a Party to the other Party prior to the date of this Agreement; (ii) any action or inaction taken by such Person to which the other Person had consented in writing; (iii) the announcement of the transactions contemplated by the Amalgamation or this Agreement; (iv) any commercialization delay; or (v) general economic, financial, currency exchange, securities, banking or commodity market conditions in the United States, Canada or worldwide;
(oo) “ Material Change ” and “ Material Fact ” has the meanings ascribed thereto under the Applicable Canadian Securities Laws;
(pp) “ Material Contract ” means those contracts, agreements, understandings or arrangements entered into by a Party which: (i) have individual payment obligations on the part of BioHep that exceed $20,000 or have individual payment obligations on the part of Next Hydrogen that exceed $100,000; (ii) are for a term extending one year after the Effective Time; (iii) have been entered into out of the
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ordinary course of business; or (iv) are otherwise material to the business of the Party;

(qq) “ misrepresentation ” has the meaning ascribed thereto in the Securities Act;
(rr) “ Next Hydrogen ” means Next Hydrogen Corporation, a corporation organized under the laws of the province of Ontario;
(ss) “ Next Hydrogen Disclosure Letter ” means the disclosure letter executed by Next Hydrogen and delivered to BioHep concurrently with the execution of this Agreement;
(tt) “ Next Hydrogen Financial Statements ” means the audited annual financial statements of Next Hydrogen for the years ended December 31, 2020 and 2019 and the notes thereto and management discussion and analysis in respect thereof;
(uu) “ Next Hydrogen Meeting ” means a special meeting of Next Hydrogen Shareholders to be called to consider and, if thought advisable, authorize, approve and adopt the Next Hydrogen Resolution;
(vv) “ Next Hydrogen Options ” means options to acquire Next Hydrogen Shares;
(ww) “ Next Hydrogen Resolution ” means the special resolution of Next Hydrogen Shareholders to authorize, approve and adopt the Amalgamation and related matters;
(xx) “ Next Hydrogen Shareholders ” means the holders of Next Hydrogen Shares;
(yy) “ Next Hydrogen Shares ” means common shares in the capital of Next Hydrogen;
(zz) “ Name Change ” has the meaning ascribed thereto in Section 5.10;
(aaa) “ OBCA ” means the Business Corporations Act (Ontario), as amended, including the regulations promulgated thereunder;
(bbb) “ Option Allotment ” means the issuance of up to 1,000,000 Next Hydrogen Options;
(ccc) “ Outside Date ” means May 31, 2021;
(ddd) “ Owned Intellectual Property ” means any Intellectual Property owned by Next Hydrogen;
(eee) “ Parties ” means, collectively, the parties to this Agreement, and “ Party ” means any one of them;
(fff) “ Plan of Arrangement ” means the plan of arrangement of BioHep and POA SubCo, substantially in the form set out in Schedule “A” to the Arrangement
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Agreement between BioHep and POA SubCo, as amended or supplemented from time to time;

(ggg) “ Person ” is to be broadly interpreted and means any individual, partnership, limited partnership, limited liability partnership, joint venture, syndicate, sole proprietorship, company or corporation with or without share capital, unincorporated association, trust, trustee, executor, administrator or other legal personal representative, regulatory body or agency, government or governmental agency, authority or entity however designated or constituted;
(hhh) “ POA SubCo ” means 1291549 B.C. Ltd., a wholly-owned subsidiary of BioHep;
(iii) “ Post-Consolidation BioHep Share ” means a common share of BioHep as constituted following the BioHep Consolidation;
(jjj) “ Public Record ” means all information filed by BioHep with any securities commission or similar regulatory authority which are available through the SEDAR website as of the date hereof;
(kkk) “ Proposed Transaction ” means the proposed business combination of BioHep and Next Hydrogen to form the Resulting Issuer;
(lll) “ Resulting Issuer ” means BioHep upon completion of the BioHep Arrangement and the Amalgamation and the listing of the Post-Consolidation BioHep Shares on the Exchange;
(mmm)“ Securities Act ” means the Securities Act (British Columbia), as amended, including the regulations promulgated thereunder;
(nnn) “ Stock Option Plan ” means a stock option plan in the form agreed to by BioHep and Next Hydrogen, acting reasonably;
(ooo) “ SubCo ” means 2819845 Ontario Inc., a wholly-owned subsidiary of BioHep;
(ppp) “ SubCo Shares ” means common shares in the capital of SubCo;
(qqq) “ subsidiary ” has the meaning ascribed thereto in the Securities Act;
(rrr) “ Transaction Summary ” means the summary of the proposed transaction pursuant to the proposed Amalgamation and related matters to be delivered to all of the Next Hydrogen Shareholders in connection with the Next Hydrogen Resolution;
(sss) “ Transfer Agent ” means TSX Trust Company, being the transfer agent for the BioHep Shares;
(ttt) “ U.S. Person ” means a “U.S. person” as such term is defined in Rule 902(k) of Regulation S under the U.S. Securities Act;
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(uuu) “ U.S. Securities Act ” means the United States Securities Act of 1933, as amended, and the rules, regulations and orders promulgated thereunder; and
(vvv) “ Working Capital Requirement ” has the meaning ascribed thereto in Section 7.3(d).

Interpretation

1.2 For the purposes of this Agreement, except as otherwise expressly provided:
(a) the division of this Agreement into articles, sections and subsections is for convenience of reference only and does not affect the construction or interpretation of this Agreement. The terms “this Agreement”, “hereto”, “herein” and “hereunder” and similar expressions refer to this Agreement (including exhibits hereto) and not to any particular article, section or other portion hereof and include any agreement or instrument supplementary or ancillary hereto;
(b) words importing the singular number include the plural and vice versa, and words importing the use of any gender include all genders;
(c) the word “including”, when following any general statement or term, is not to be construed as limiting the general statement or term to the specific items or matters set forth or to similar items or matters, but rather as permitting the general statement or term to refer to all other items or matters that could reasonably fall within its broadest possible scope;
(d) if any date on which any action is required to be taken hereunder by any of the Parties is not a Business Day in the place where an action is required to be taken, such action is required to be taken on the next succeeding day which is a Business Day in such place;
(e) any reference in this Agreement to any statute or any section thereof shall, unless otherwise expressly stated, be deemed to be a reference to such statute or section as amended, restated or re-enacted from time to time, and to any regulations promulgated thereunder. References to any agreement or document shall be to such agreement or document (together with all schedules and exhibits thereto), as it may have been or may hereafter be amended, supplemented, replaced or restated from time to time;
(f) all sums of money that are referred to in this Agreement are expressed in lawful money of Canada unless otherwise noted;
(g) unless otherwise stated, all accounting terms used in this Agreement shall have the meanings attributable thereto under IFRS and all determinations of an accounting nature are required to be made shall be made in a manner consistent with IFRS;
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(h) all representations, warranties, covenants and opinions in or contemplated by this Agreement as to the enforceability of any covenant, agreement or document are subject to enforceability being limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally, and the discretionary nature of certain remedies (including specific performance and injunctive relief and general principals of equity);
(i) where any representation or warranty contained in this Agreement is expressly qualified by reference to the knowledge of a Party, with respect to Next Hydrogen it refers to the actual knowledge of the Chief Executive Officer and the Chief Financial Officer and with respect to BioHep it refers to the actual knowledge of Chief Executive Officer and the Chief Financial Officer, in each case after due inquiry; and
(j) the Parties hereto acknowledge that their respective legal counsel have reviewed and participated in settling the terms of this Agreement, and the Parties 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.

Exhibits

1.3 The following exhibits attached hereto are incorporated into and form an integral part of this Agreement:

Exhibit “A” – Form of Articles and By-Laws of Amalco

Exhibit “B” – Form of Amalgamation Application

Exhibit “C” – Form of Amalgamation Resolution

PART 2 THE AMALGAMATION

Agreement to Amalgamate

2.1 The Parties agree that SubCo and Next Hydrogen shall amalgamate pursuant to the provisions of the OBCA as of the Effective Date and continue as one corporation on the terms and conditions set out in this Agreement.

Effect of Amalgamation

2.2 Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time:
(a) Next Hydrogen and SubCo shall be amalgamated and continue as one corporation;
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(b) each of Next Hydrogen and SubCo shall cease to exist as entities separate from Amalco;
(c) the property of each of SubCo and Next Hydrogen shall continue to be the property of Amalco;
(d) Amalco shall continue to be liable for the obligations of each of SubCo and Next Hydrogen; and
(e) the Articles and Bylaws attached hereto as Exhibit “A” shall be the articles and bylaws of Amalco.

Name

2.3 The name of Amalco shall be “Next Hydrogen Corporation ” or such other name as determined by the directors of Next Hydrogen.

Registered Office

2.4 The registered office of Amalco shall be 102-2680 Matheson Blvd. E, Mississauga, Ontario L4W 0A5.

Authorized Capital and Restrictions on Share Transfers

2.5 The authorized capital of Amalco shall consist of an unlimited number of common shares without par value, which shall have the rights, privileges, restrictions and conditions set out in the Articles. No shares of Amalco may be transferred except in compliance with the restrictions set out in the Articles.

Fiscal Year

2.6 The fiscal year end of Amalco shall be December 31 of each calendar year.

Business

2.7 There shall be no restriction on the business which Amalco is authorized to carry on.

Initial Directors of Amalco

2.8 The first director of Amalco shall be the persons whose names and addresses appear below or such other person(s) as BioHep may determine:

Name Raveel Afzaal	Address
	c/o 102-2680 Matheson Blvd. E, Mississauga, ON L4W 0A5

Such director shall hold office until the first annual meeting of shareholders of Amalco or until his successor is elected or appointed.

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Initial Officers of Amalco

2.9 The first officer of Amalco shall be the persons whose names and positions appear below or such other person(s) as BioHep may determine:

Name Raveel Afzaal Kasia Malz	Position
	President and Chief Executive Officer Chief Financial Officer and Corporate Secretary

Directors and Officers of BioHep Post-Closing

2.10 At or prior to the Effective Date, BioHep shall use commercially reasonable efforts to cause:
(a) the board of directors of BioHep post-closing to consist of four directors, or such other number of directors as determined by Next Hydrogen, all of whom will be nominated by Next Hydrogen; and
(b) its officers to resign without payment by or any liability to Next Hydrogen or BioHep, including any change in control or bonus payments and commitments.
2.11 Next Hydrogen and BioHep shall enter into mutual releases with all former directors and officers of BioHep, in a form acceptable to BioHep and Next Hydrogen, acting reasonably, at the Effective Time.

Exchange of SubCo Shares and Next Hydrogen Shares

2.12 Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time:
(a) each Next Hydrogen Shareholder will receive one Post-Consolidation BioHep Share in exchange for each Next Hydrogen Share held by such holder and the Next Hydrogen Shares will be cancelled;
(b) each holder of SubCo Shares other than BioHep will receive one PostConsolidation BioHep Share in exchange for each SubCo Share held by such holder and the SubCo Shares will be cancelled;
(c) BioHep will receive one Amalco Share in exchange for each SubCo Share held by it and the SubCo Shares will be cancelled; and
(d) in consideration for BioHep’s issuance of Post-Consolidation BioHep Shares referenced in Section 2.12(a) and Section 2.12(b), Amalco shall issue to BioHep one Amalco Share for each Post-Consolidation BioHep Share issued by BioHep under Section 2.12(a) and Section 2.12(b).
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Convertible Securities

2.13 The Parties acknowledge that, as at the Effective Time, all securities of Next Hydrogen convertible into Next Hydrogen Shares will cease to represent a right to acquire Next Hydrogen Shares and will provide the right to acquire BioHep Shares, all in accordance with the adjustment provisions provided in the certificates representing such securities. It is intended that the provisions of subsection 7(1.4) of the Income Tax Act (Canada) apply to any exchange of options to acquire Next Hydrogen Shares for options to acquire PostConsolidation BioHep Shares.

Dissenting Shareholders

2.14 Registered Next Hydrogen Shareholders will be entitled to exercise dissent rights with respect to their Next Hydrogen Shares in connection with the Amalgamation pursuant to and in the manner set forth in the OBCA. Next Hydrogen shall give BioHep notice of any written notice of a dissent, withdrawal of such notice, and any other instruments served pursuant to such dissent rights and received by Next Hydrogen and shall provide BioHep with copies of such notices and written objections. Next Hydrogen Shares which are held by a Dissenting Shareholder shall not be exchanged for BioHep Shares pursuant to the Amalgamation. However, if a Dissenting Shareholder fails to perfect or effectively withdraws such Dissenting Shareholder’s claim under the OBCA or forfeits such Dissenting Shareholder’s right to make a claim under the OBCA, or if such Dissenting Shareholder’s rights as a Next Hydrogen Shareholder are otherwise reinstated, such Next Hydrogen Shareholder’s Next Hydrogen Shares shall thereupon be deemed to have been exchanged for BioHep Shares as of the Effective Time as prescribed herein.

Completion of the Amalgamation and Effective Date

2.15 Upon the satisfaction or waiver of the conditions herein contained in favour of each Party, Next Hydrogen and SubCo shall deliver to the Director the Amalgamation Application and such other documents as may be required to give effect to the Amalgamation. The Amalgamation shall become effective at the Effective Time.

Acknowledgment of Escrow and Resale Restrictions

2.16 Next Hydrogen acknowledges and agrees that in accordance with the policies of the Exchange, the BioHep Shares issued to certain Next Hydrogen Shareholders will be subject to escrow, seed share resale restrictions or both under the policies of the Exchange and Applicable Laws.
2.17 In addition to any other resale restrictions that may be imposed, any Next Hydrogen Shareholder who is a U.S. Person will receive BioHep Shares in exchange for such Next Hydrogen Shareholder’s Next Hydrogen Shares which will bear a legend substantially in the following form:

“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES

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ACT”) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE COMPANY THAT SUCH SECURITIES MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE COMPANY; (B) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT; (C) IN ACCORDANCE WITH THE EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY (I) RULE 144 OR (II) RULE 144A, 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 PARAGRAPH (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.”

Agency Agreement

2.18 The Parties acknowledge that Next Hydrogen, and if required by the Agents BioHep and SubCo, will enter into an agency agreement with a reputable investment bank in respect of the Concurrent Financing, as applicable.

PART 3 COVENANTS

Mutual Covenants

3.1 From the date of this Agreement until the earlier of the Effective Date and the termination of this Agreement in accordance with Part 9, except as otherwise expressly permitted or specifically contemplated by this Agreement, as set out in the Next Hydrogen Disclosure Letter or as required by Applicable Laws, each of the Parties shall:
(a) carry on its business in the usual, regular and ordinary course of business consistent with its past practice;
(b) not incur any indebtedness other than in the ordinary course of business consistent with its past practice, or as required in connection with the transactions contemplated by this Agreement;
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(c) not alter or amend its Constating Documents as the same exist at the date of this Agreement, except as required in connection with the transactions contemplated by this Agreement;
(d) take, or cause to be taken, all action and to do, or cause to be done, all other things necessary, proper or advisable under Applicable Laws to complete the Amalgamation, including using reasonable commercial efforts:
(e) to obtain all necessary consents, assignments, waivers and amendments to or terminations of any agreements and take such measures as may be appropriate to fulfill its obligations hereunder and to carry out the transactions contemplated hereby;
(i) to effect all necessary registrations, filings and submissions of information requested by Governmental Authorities required to be effected by it in connection with the Amalgamation;
(ii) to obtain Exchange acceptance of the Proposed Transaction and the listing of the Resulting Issuer as a Tier 2 Industrial or Technology Issuer;
(iii) to oppose, lift or rescind any injunction or restraining or other order seeking to stop, or otherwise adversely affecting its ability to consummate, the Amalgamation and to defend, or cause to be defended, any proceedings to which it is a party or brought against it or its directors or officers challenging this Agreement or the consummation of the transactions contemplated hereby; and
(iv) to reasonably cooperate with the other Parties and their tax advisors in structuring the Amalgamation and other transactions contemplated to occur in conjunction with the Amalgamation in a tax effective manner and assist the other Parties and their tax advisors in making such investigations and enquiries with respect to such Parties in that regard, as the other Parties and its tax advisors shall consider necessary, acting reasonably;
(f) not take any action that would render, or may reasonably be expected to render, any representation or warranty made by such Party in this Agreement untrue in any material respect;
(g) use reasonable commercial efforts to obtain and maintain the third-party approvals applicable to them and provide the same to the other Parties on or prior to the Effective Date;
(h) use reasonable commercial efforts to complete the Amalgamation by April 15, 2021, or as soon as reasonably practicable thereafter, but in any event no later than the Outside Date;
(i) except as provided in this Agreement, and other than the BioHep Arrangement, not amalgamate or consolidate with, or enter into any other corporate
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reorganization with, any other corporation or Person or perform any act or enter into any transaction or negotiation which, in the opinion of Next Hydrogen or BioHep acting reasonably, interferes or is inconsistent with the completion of the transactions contemplated hereby. Without limiting the foregoing, except as provided in this Agreement and other than the BioHep Arrangement, none of the Parties shall (i) make any distribution by way of dividend, return of capital or otherwise to or for the benefit of its shareholders, (ii) subdivide, consolidate or reclassify their share capital, other than the BioHep Consolidation, or (iii) issue any of its shares or other securities convertible into shares or enter into any commitment or agreement (other than on the exercise of convertible securities, including without limitation the Next Hydrogen Options and the BioHep Options) except with the prior written consent of the other party or pursuant to the Concurrent Financing or the Option Allotment;
(j) furnish to the other Parties such information, in addition to the information contained in this Agreement, relating to its financial condition, business, properties and affairs as may reasonably be requested by another Party, which information shall be true and complete in all material respects and shall not contain an untrue statement of any Material Fact or omit to state any Material Fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances in which they are made, not misleading and will notify the other Parties of any significant development or Material Change relating to it promptly after becoming aware of any such development or change;
(k) promptly notify the other Parties in writing of any change in any representation or warranty provided in this Agreement which change is or may be of such a nature as to render any representation or warranty misleading or untrue in any material respect and the Parties shall in good faith discuss with the other Parties such change in circumstances (actual, anticipated, contemplated, or to its knowledge, threatened) which is of such a nature that there may be a reasonable question as to whether notice need to be given to the other Parties pursuant to this Section 3.1(k);
(l) promptly notify the other Parties in writing of any material breach by such Party of any covenant, obligation or agreement contained in this Agreement; and
(m) not, except for the BioHep Arrangement, directly or indirectly, solicit, initiate, assist, facilitate, promote or knowingly encourage the initiation of proposals or offers from, entertain or enter into discussions or negotiations with any Person other than the other Parties hereto, with respect to any amalgamation, merger, consolidation, arrangement, restructuring, sale of any material assets or part thereof of such Party, unless such action, matter or transaction is part of the transactions contemplated in this Agreement or is required as a result of the duties of directors and officers of the applicable Party in compliance with Applicable Laws.
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Additional Covenants of BioHep and the BioHep Subsidiaries

3.2 From the date of this Agreement until the earlier of the Effective Date and the termination of this Agreement in accordance with Part 9, except as expressly permitted or specifically contemplated by this Agreement or required by Applicable Laws, each of BioHep and the BioHep Subsidiaries covenant and agree that:
(a) BioHep and the BioHep Subsidiaries shall use their reasonable commercial efforts to satisfy or cause the satisfaction of the conditions set forth in Section 7.1 and Section 7.3 as soon as reasonably practicable, to the extent the fulfillment of the same is within the control of BioHep, SubCo or POA Subco, as the case may be;
(b) BioHep shall, as the sole shareholder of SubCo, approve by special resolution the Amalgamation, together with such matters as are required to effect the Amalgamation;
(c) BioHep shall use reasonable commercial efforts to seek shareholder approval of the Arrangement, the BioHep Consolidation, the Name Change, the Stock Option Plan, and the election of six (6) directors, together with the approval of any other matters as are required to effect the Amalgamation;
(d) BioHep shall cause the Amendment to become effective prior to the Effective Time;
(e) BioHep shall cause, as of the Effective Time, the BioHep Board of Directors and BioHep management to be reconstituted with such directors and officers as determined by Next Hydrogen in accordance with Section 2.10 and Section 2.11;
(f) BioHep shall, on the Effective Date, provide to the Transfer Agent a direction authorizing and directing the Transfer Agent to issue the BioHep Shares issuable under the Amalgamation to holders of the Next Hydrogen Shares and shall direct the Transfer Agent to distribute the BioHep Shares to the holders of the Next Hydrogen Shares in accordance with the terms of the Amalgamation;
(g) BioHep and POA SubCo shall use reasonable commercial efforts to seek shareholder, court and any required regulatory approvals of the BioHep Arrangement;
(h) neither BioHep nor POA Subco shall amend the Arrangement Agreement without the prior written consent of Next Hydrogen;
(i) they will promptly advise Next Hydrogen in writing: (i) on any change to the BioHep Arrangement or the anticipated closing of the BioHep Arrangement; (ii) of any formal notice delivered pursuant to or in connection with the BioHep Arrangement; and (iii) of any breach by BioHep or POA Subco of any covenant or agreement or act to be taken in respect of the BioHep Arrangement; and
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(j) each of BioHep and SubCo shall use all commercially reasonable efforts to assist Next Hydrogen to complete the Concurrent Financing including entering into an agency agreement with a reputable investment bank in respect of the Concurrent Financing, on terms acting reasonably.

Additional Covenants of Next Hydrogen

3.3 From the date of this Agreement until the earlier of the Effective Date and the termination of this Agreement in accordance with Part 9, except as expressly permitted or specifically contemplated by this Agreement or required by Applicable Laws, Next Hydrogen covenants and agrees that:
(a) Next Hydrogen will use its reasonable commercial efforts to satisfy or cause the satisfaction of the conditions set forth in Section 7.1 and Section 7.2 as soon as reasonably practicable, to the extent the fulfillment of the same is within the control of Next Hydrogen;
(b) Next Hydrogen shall use reasonable commercial efforts to seek approval of Next Hydrogen Shareholders pursuant to the Next Hydrogen Resolution, together with the approval of such matters as are required to effect the Amalgamation, by way of written unanimous resolution or as permitted under its shareholder agreement or special resolution at the Next Hydrogen Meeting;
(c) If required in the reasonable, mutual opinion of BioHep and Next Hydrogen, as soon as reasonably practicable after execution of this Agreement, Next Hydrogen will convene the Next Hydrogen Meeting for the purpose of approving the Amalgamation and to solicit proxies to be voted at the Next Hydrogen Meeting in favour of the approval of the Amalgamation;
(d) If the Next Hydrogen Meeting is convened, Next Hydrogen will prepare and distribute to the Next Hydrogen Shareholders in a timely and expeditious manner the information circular, and any amendments or supplements to the circular, all as required by applicable law, in all jurisdictions where the same is required complying in all material respects with all applicable legal requirements on the date of issue thereof;
(e) If the Next Hydrogen Meeting is convened, Next Hydrogen will include in the information circular the recommendation of the board of directors of Next Hydrogen that the Next Hydrogen Shareholders vote in favour of the Amalgamation;
(f) Except for proxies and other non-substantive communications with security holders, Next Hydrogen will provide promptly to BioHep a copy of each notice, report, schedule or other document delivered, filed or received by it in connection with: (i) the Amalgamation; (ii) any filings under applicable laws; and (iii) any dealings with regulatory agencies in connection with the transactions contemplated herein;
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(g) Next Hydrogen shall promptly advise BioHep of the number of Next Hydrogen Shares for which Next Hydrogen receives notices of dissent or written objections to the Amalgamation;
(h) Next Hydrogen shall use all commercially reasonable efforts to complete the Concurrent Financing; and
(i) Next Hydrogen shall make all necessary filings and applications under applicable foreign, federal and provincial laws and regulations required on its part in connection with the transactions contemplated in this Agreement, and take all reasonable action necessary to be in compliance with such laws and regulations.

PART 4 REPRESENTATIONS AND WARRANTIES

Representations and Warranties of BioHep and BioHep Subsidiaries

4.1 BioHep and the BioHep Subsidiaries represent and warrant, jointly and severally, to Next Hydrogen as follows, and acknowledge that Next Hydrogen is relying upon such representations and warranties in connection with the matters contemplated by this Agreement:
(a) each of BioHep, SubCo and POA SubCo has good and sufficient right and authority to enter into this Agreement and carry out its intentions hereunder;
(b) BioHep is duly incorporated under the BCBCA, is currently in good standing, has all corporate powers required to carry on its business as now conducted and is not subject to any regulatory decision or order prohibiting or restricting trading in its shares;
(c) SubCo is duly incorporated under the OBCA, is currently in good standing, has all corporate powers required to carry on its business as now conducted and is not subject to any regulatory decision or order prohibiting or restricting trading in its shares;
(d) POA SubCo is duly incorporated under the BCBCA, is currently in good standing, has all corporate powers required to carry on its business as now conducted;
(e) BioHep is a “reporting issuer” (as such term is defined in the Securities Act) in good standing in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Quebec and has not been placed on the list of defaulting issuers as maintained by the securities commissions of such jurisdictions;
(f) BioHep is authorized to issue an unlimited number of BioHep Shares, of which 9,448,708 pre-Consolidation BioHep Shares are issued and outstanding as at the date hereof;
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(g) SubCo is authorized to issue an unlimited number of SubCo Shares and an unlimited number of preferred shares issuable in series, and all of the issued and outstanding shares of SubCo are held by BioHep;
(h) POA SubCo is authorized to issue an unlimited number of common shares and an unlimited number of preferred shares issuable in series, and all of the issued and outstanding shares of POA SubCo are held by BioHep;
(i) except for the BioHep Options to purchase a maximum of 504,000 BioHep Shares, there are no other shares, options, warrants, convertible notes or debentures, agreements, documents, instruments or other writings of any kind whatsoever which constitute a “security” of BioHep, SubCo or POA Subco (as that term is defined in the Securities Act) and, except as provided in this Agreement or in the Plan of Arrangement, neither BioHep nor any of the BioHep Subsidiaries has any agreement or commitment of any character whatsoever convertible into, or exchangeable or exercisable for or otherwise requiring the issuance, sale or transfer by BioHep of any BioHep Shares or any securities convertible into, or exchangeable or exercisable for, or otherwise evidencing a right to acquire, any BioHep Shares;
(j) there are no outstanding actions, suits, judgments, investigations or proceedings of any kind whatsoever against or affecting BioHep, SubCo or POA SubCo at law or in equity or before or by any Governmental Authority, nor are there, to their knowledge, any pending or threatened;
(k) this Agreement is a binding agreement on BioHep, SubCo and POA SubCo, enforceable against each of them in accordance with its terms and conditions (subject to such limitations and prohibitions as may exist or may be enacted in applicable laws relating to bankruptcy, insolvency, liquidation, moratorium, reorganization, arrangement or winding-up and other laws, rules and regulations of general application affecting the rights, powers, privileges, remedies and/or interests of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to waiver, indemnity and contribution, and the ability to sever unenforceable terms, may be limited by applicable law);
(l) neither BioHep nor any BioHep Subsidiary is party to any Material Contracts other than this Agreement and the Arrangement Agreement;
(m) all registrations (or applications for registrations), if any, and filings that BioHep has considered necessary to preserve the rights of BioHep in its Intellectual Property have been made and are in good standing. BioHep does not have any pending action or proceeding, nor, to the knowledge of BioHep, any threatened action or proceeding, against any person with respect to the use of its Intellectual Property, and there are no circumstances which cast reasonable doubt on the validity or enforceability of its Intellectual Property. BioHep has not, to the
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knowledge of BioHep, infringed upon the intellectual property rights of any other Person;

(n) neither the execution and delivery of this Agreement, nor the consummation of the Amalgamation or the BioHep Arrangement, will conflict with or result in any breach of any of the terms or provisions of, or constitute a default under, the material contracts and the Constating Documents of BioHep, director or shareholder minutes of BioHep, any agreement or instrument to which BioHep is a party or by which BioHep is bound, or any order, decree, statute, regulation, covenant or restriction applicable to BioHep;
(o) the investments of BioHep consist entirely of such items disclosed in the disclosure letter executed by BioHep and delivered to Next Hydrogen concurrently with the execution of this Agreement, which shall be sold to POA Subco pursuant to the Plan of Arrangement;
(p) BioHep has good title to its assets free and clear of all Encumbrances;
(q) neither BioHep nor any BioHep Subsidiary has any liabilities, obligations or indebtedness (whether accrued, absolute, contingent or otherwise) of any kind whatsoever, and, there is no basis for assertion against BioHep nor any BioHep Subsidiary of any liabilities, obligations or indebtedness (whether accrued, absolute, contingent or otherwise) of any kind, other than liabilities disclosed or reflected in the financial statements of BioHep, incurred in the ordinary course of business following the dates of the most recent financial statements of BioHep or for professional fees accrued but not yet invoiced, and neither BioHep nor any BioHep Subsidiary has granted general security over its assets or security in any particular asset;
(r) the financial statements of BioHep are prepared in accordance with IFRS and present fairly, in all material respects, the financial position of BioHep as at such date, and do not omit to state any material fact that is required by applicable Laws to be stated or reflected therein or which is necessary to make the statements contained therein not misleading;
(s) since the date of the most recent financial statements of BioHep, BioHep has carried on its business and conducted its operations and affairs only in the ordinary course;
(t) BioHep has never had any employees and it is a party to no written or verbal contracts of employment and BioHep does not have any obligations or liabilities to pay any amount to its officers or directors including but not limited to the obligations of BioHep for severance, retention, termination or bonus payments as a result of the Proposed Transaction;
(u) there has never been a “disagreement” (within the meaning of National Instrument 51-102 – Continuous Disclosure Obligations) with the past or present auditors of BioHep;
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(v) the documents and materials comprising the Public Record of BioHep are, to BioHep’ knowledge, in all material respects accurate and up to date and contain no misrepresentation, nor omit any facts, the omission of which makes the Public Record or any particulars therein, materially misleading or incorrect;
(w) the information in the Listing Application relating to BioHep and the BioHep Subsidiaries will be true, correct and complete in all material respects and not contain any untrue statement of any material fact, nor omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading in light of the context in which they are to be made;
(x) BioHep is up to date and current with all filings and fees required by the Securities Commissions of the jurisdictions in which it is a reporting issuer and all such filings were true and accurate in all material respects as at the respective dates thereof and BioHep has not filed any confidential material change reports;
(y) neither BioHep nor any BioHep Subsidiary has made any tax filings and to the knowledge of BioHep and each BioHep Subsidiary no such tax filings are currently outstanding;
(z) the Corporate Records of BioHep and the BioHep Subsidiaries are complete and accurate in all material respects and all corporate proceedings and actions reflected in the Corporate Records have been conducted or taken in compliance with all Applicable Laws and with the Constating Documents of BioHep, SubCo and POA SubCo, as applicable. Without limiting the generality of the foregoing, in respect of the Corporate Records of BioHep (i) the minute books contain complete and accurate minutes of all meetings of the directors and shareholders held since incorporation and all such meetings were properly called and held, (ii) the minute books contain all resolutions passed by the directors and shareholders (and committees, if any) and all such resolutions were properly passed, (iii) the share certificate books, register of shareholders and register of transfers are complete and accurate, all transfers have been properly completed and approved and any tax payable in connection with the transfer of any securities has been paid, and (iv) the registers of directors and officers are complete and accurate and all former and present directors and officers were properly elected or appointed, as the case may be;
(aa) no proceedings have been taken, are pending or authorized by BioHep or any BioHep Subsidiary or by any other Person, in respect of the bankruptcy, insolvency, liquidation or winding up of BioHep or any BioHep Subsidiary;
(bb) as at the date hereof, there are no reasonable grounds for believing that any creditor of BioHep or SubCo will be prejudiced by the Amalgamation;
(cc) as at the date hereof, BioHep has no subsidiaries, except for SubCo and POASubCo;
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(dd) there are no agreements, covenants, undertakings, rights of first refusal or other commitments of either BioHep, SubCo or POA Subco or any instruments binding on it or its assets:
(i) which would preclude it from entering into this Agreement;
(ii) under which the Amalgamation would have the effect of imposing restrictions or obligations on Amalco greater than those imposed upon BioHep or SubCo;
(iii) which would give a third party, as a result of the transactions contemplated in this Agreement, the right to terminate any material agreement to which BioHep, SubCo or POA Subco is a party or to purchase any of BioHep’s, SubCo’s or Amalco’s assets; or
(iv) which would impose restrictions on the ability of Amalco:
- (A) to carry on any business which it might choose to carry on within any geographical area;
- (B) to acquire property or dispose of its property and assets as an entirety;
- (C) to pay dividends, redeem shares or make other distributions to its shareholders;
- (D) to borrow money or to mortgage and pledge its property as security therefore; or
- (E) to change its corporate status;
(ee) neither BioHep nor any of the BioHep Subsidiaries is a party to any agreement, nor is BioHep aware of any agreement, which in any manner affects the voting control of any of the BioHep Shares or other securities of BioHep or the BioHep Subsidiaries;
(ff) all information supplied by BioHep or its representatives to Next Hydrogen in the course of Next Hydrogen’s due diligence review in respect of the transactions contemplated by this Agreement, is accurate and correct in all material respects; and
(gg) the representations, warranties or statements of fact made in this section do not contain any untrue statement of a material fact or omit to state any material fact necessary to make any such warranty or representation not misleading to Next Hydrogen in seeking full information as to BioHep, SubCo, POA SubCo and their assets, liabilities and business.
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Representations and Warranties of Next Hydrogen

4.2 Next Hydrogen represents and warrants to BioHep and SubCo as follows, and acknowledges that BioHep and SubCo are relying upon such representations and warranties in connection with the matters contemplated by this Agreement:
(a) it has good and sufficient right and authority to enter into this Agreement and carry out its intentions hereunder;
(b) it is duly incorporated under the OBCA and is currently in good standing, has all corporate powers required to carry on its Business as now conducted and is not subject to any regulatory decision or order prohibiting or restricting trading in its shares;
(c) it is authorized to issue an unlimited number of Next Hydrogen Shares, of which 16,580,608 Next Hydrogen Shares are issued and outstanding as at the date hereof. All Next Hydrogen Shares have been duly issued and have been issued in compliance with all Applicable Laws including, without limitation, Applicable Securities Laws;
(d) other than the 1,760,000 Next Hydrogen Options and the securities which may be issued in connection with the Concurrent Financing or pursuant to the Option Allotment there are no other shares, options, warrants, convertible notes or debentures, agreements, documents, instruments or other writings of any kind whatsoever which constitute a “security” of Next Hydrogen (as that term is defined in the Securities Act) and Next Hydrogen has no agreements or commitments of any character whatsoever convertible into, or exchangeable or exercisable for or otherwise requiring the issuance, sale or transfer by Next Hydrogen of any Next Hydrogen Shares or any securities convertible into, or exchangeable or exercisable for, or otherwise evidencing a right to acquire, any Next Hydrogen Shares;
(e) Next Hydrogen has no subsidiaries and Next Hydrogen is not a partner, co-tenant, joint venture or otherwise in any partnership, co-tenancy or other similarly joint owned business;
(f) Next Hydrogen is not a “reporting issuer” nor an associate of a “reporting issuer” (as such term is defined in the Securities Act) and the Next Hydrogen Shares do not trade on any exchange;
(g) there are no outstanding actions, suits, judgments, investigations or proceedings of any kind whatsoever against or affecting Next Hydrogen at law or in equity or before or by any Governmental Authority nor are there, to its knowledge, any pending or threatened;
(h) this Agreement is a binding agreement on Next Hydrogen, enforceable against it in accordance with its terms and conditions (subject to such limitations and prohibitions as may exist or may be enacted in applicable laws relating to
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bankruptcy, insolvency, liquidation, moratorium, reorganization, arrangement or winding-up and other laws, rules and regulations of general application affecting the rights, powers, privileges, remedies and/or interests of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to waiver, indemnity and contribution, and the ability to sever unenforceable terms, may be limited by applicable law);

(i) Section 3.1 of the Next Hydrogen Disclosure Letter provides a complete and accurate list of all Material Contracts of Next Hydrogen other than Material Contracts that have been entered into with employees, consultants or vendors of Next Hydrogen in the normal course. Each of the Material Contracts constitutes the valid and legally binding obligation of Next Hydrogen, enforceable in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general principles of equity). There is no material default under any Material Contract by Next Hydrogen or, to the knowledge of Next Hydrogen, by any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by Next Hydrogen or, to the knowledge of Next Hydrogen, any other party, in any such case in which such default or event constitutes a Material Adverse Effect. No party to any such Material Contract has given written notice to Next Hydrogen of or made a claim against Next Hydrogen with respect to any breach or default thereunder, in any such case in which such breach or default constitutes a Material Adverse Effect;
(j) all registrations (or applications for registrations), if any, and filings that Next Hydrogen has considered necessary to preserve the rights of Next Hydrogen in its Intellectual Property have been made and are in good standing. Next Hydrogen does not have any pending action or proceeding, nor, to the knowledge of Next Hydrogen, any threatened action or proceeding, against any person with respect to the use of its Intellectual Property, and there are no circumstances which cast reasonable doubt on the validity or enforceability of its Intellectual Property. Next Hydrogen has not, to the knowledge of Next Hydrogen, infringed upon the intellectual property rights of any other Person;
(k) neither the execution and delivery of this Agreement, nor the consummation of the Amalgamation, will conflict with or result in any breach of: (i) any of the terms or provisions of, or constitute a default under, the Material Contracts, the Constating Documents of Next Hydrogen, director or shareholder minutes of Next Hydrogen, any agreement or instrument to which Next Hydrogen is a party or by which Next Hydrogen is bound or any order, decree, statue regulation, covenant or restriction applicable to Next Hydrogen;
(l) Next Hydrogen is not in material default under any Material Contract to which it is a party and there has not occurred any event which, with the lapse of time or giving of notice or both, would constitute a default under any Material Contract
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by Next Hydrogen. Each Material Contract is in full force and effect, unamended by written or oral agreement, and Next Hydrogen is entitled to the full benefit and advantage of each Material Contract in accordance with its terms;

(m) Next Hydrogen does not have any liabilities, obligations or indebtedness (whether accrued, absolute, contingent or otherwise) of any kind whatsoever, and, there is no basis for assertion against Next Hydrogen of any liabilities, obligations or indebtedness (whether accrued, absolute, contingent or otherwise) of any kind, other than liabilities disclosed or reflected in or provided for in the Next Hydrogen Financial Statements or incurred in the ordinary course of business following the dates of the Next Hydrogen Financial Statements;
(n) the Next Hydrogen Financial Statements are prepared in accordance with ASPE and present fairly, in all material respects, the financial position of Next Hydrogen as at such date, and do not omit to state any material fact that is required by applicable Laws to be stated or reflected therein or which is necessary to make the statements contained therein not misleading;
(o) since the date of the most recent Next Hydrogen Financial Statements, Next Hydrogen has carried on its Business and conducted its operations and affairs only in the ordinary course;
(p) policies of insurance are in force as of the date hereof naming Next Hydrogen as an insured that adequately cover all risks as are customarily covered in the industry in which Next Hydrogen operates. Next Hydrogen’s assets are insured in such amounts and against such risks adequately cover all risks as are customarily covered by companies in the industry in which Next Hydrogen operates. Next Hydrogen is not in default with respect to any of the provisions contained in the insurance policies, the payment of any premiums under any insurance policy and has not failed to give any notice or to present any claim under any insurance policy in a due and timely fashion. There has not been any Material Adverse Change in the relationship of Next Hydrogen with any insurers, the availability of coverage, or in the premiums payable pursuant to the policies. Next Hydrogen maintains all insurance coverage as may be required by any Material Contract;
(q) Next Hydrogen is not aware of any legislation, or proposed legislation published by a legislative body as at the date of this Agreement, which it anticipates will materially and adversely affect the Business, affairs, operations, assets, liabilities (contingent or otherwise) or prospects of Next Hydrogen;
(r) Next Hydrogen owns and possesses adequate enforceable rights to use all trademarks, patents, copyrights and trade secrets used or proposed to be used in the conduct of the Business thereof and, to the knowledge of Next Hydrogen, Next Hydrogen is not infringing upon the rights of any other Person with respect to any such trademarks, patents, copyrights or trade secrets and, no Person has infringed any such trademark, patents, copyrights or trade secrets;
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(s) the information in the Listing Application relating to Next Hydrogen will be true, correct and complete in all material respects and will not contain any untrue statement of any material fact, nor omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading in light of the context in which they are to be made;
(t) immediately prior to the Amalgamation, no non-resident of Canada (as such term is defined in the Income Tax Act) nor any group of non-resident persons, each member of which does not deal at arm’s length with the other members, either individually or collectively, will hold over 50% of the voting shares of Next Hydrogen;
(u) Next Hydrogen does not have any outstanding taxes due and payable and there exist no facts or circumstances which may reasonably be expected to result in the issuance of assessment or reassessment of tax;
(v) Next Hydrogen has duly and on a timely basis prepared and filed all tax returns required to be filed by it prior to the date hereof and such returns and documents are complete and correct. Next Hydrogen has no knowledge of any contingent tax liabilities or any ground which would prompt an assessment or reassessment of any of such returns or reports, including aggressive treatment of income and expenses in filing any tax returns;
(w) the Corporate Records of Next Hydrogen are complete and accurate in all material respects and all corporate proceedings and actions reflected in the Corporate Records have been conducted or taken in compliance in all material respects with all Applicable Laws and with the Constating Documents of Next Hydrogen. Without limiting the generality of the foregoing, in respect of the Corporate Records of Next Hydrogen (i) the minute books contain complete and accurate minutes of all meetings of the directors and shareholders held since incorporation and all such meetings were properly called and held, (ii) the minute books contain all resolutions passed by the directors and shareholders (and committees, if any) and all such resolutions were properly passed, (iii) the share certificate books, register of shareholders and register of transfers are complete and accurate, all transfers have been properly completed and approved and any tax payable in connection with the transfer of any securities has been paid, and (iv) the registers of directors and officers are complete and accurate and all former and present directors and officers were properly elected or appointed, as the case may be;
(x) no proceedings have been taken, are pending or authorized by Next Hydrogen or by any other Person, in respect of the bankruptcy, insolvency, liquidation or winding up of Next Hydrogen;
(y) as at the date hereof there are no reasonable grounds for believing that any creditor of Next Hydrogen will be prejudiced by the Amalgamation;
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(z) there are no outstanding labour disputes, (whether filed or lodged with Next Hydrogen or any other Person or organization), and to the knowledge of Next Hydrogen there are no pending labour disruptions or pending unionization with respect to Next Hydrogen;
(aa) Next Hydrogen is not bound by or a party to any collective bargaining agreement;
(bb) Next Hydrogen has been and is being operated in compliance, in all material respects, with Applicable Laws relating to employment, including employment standards, occupational health and safety, human rights, labour relations, workers compensation, pay equity and employment equity and Next Hydrogen has not received notice of any outstanding assessments, penalties, fines, liens, charges, surcharges, or other amounts due or owing pursuant to any workers’ compensation legislation and Next Hydrogen has not been reassessed in any material respect under such legislation;
(cc) there are no agreements, covenants, undertakings, rights of first refusal or other commitments of Next Hydrogen or any instruments binding on their assets:
(i) which would preclude Next Hydrogen from entering into this Agreement;
(ii) under which the Amalgamation would have the effect of imposing restrictions or obligations on Amalco greater than those imposed upon Next Hydrogen;
(iii) which would give a third party, as a result of the transactions contemplated in this Agreement, the right to terminate any material agreement to which Next Hydrogen is a party or to purchase any of Next Hydrogen’s or Amalco’s assets; or
(iv) which would impose restrictions on the ability of Amalco:
- (A) to carry on any business which it might choose to carry on within any geographical area;
- (B) to acquire property or dispose of its property and assets as an entirety;
- (C) to pay any dividends, redeem shares or make other distributions to its shareholders;
- (D) to borrow money or to mortgage and pledge its property as security therefore; or
- (E) to change its corporate status;
(dd) at the Effective Time, Next Hydrogen will have good and valid title to all material real estate and personal property owned or leased by it, free and clear of any
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Encumbrances, except as would not have a Material Adverse Effect with respect to Next Hydrogen;

(ee) all information supplied by Next Hydrogen or its representatives to BioHep in the course of BioHep’s due diligence review in respect of the transactions contemplated by this Agreement, is accurate and correct in all material respects; and
(ff) the representations, warranties or statements of fact made in this section do not contain any untrue statement of a material fact or omit to state any material fact necessary to make any such warranty or representation not misleading to BioHep or SubCo in seeking full information as to Next Hydrogen and its assets, liabilities and Business.

Further Intellectual Property Representations and Warranties of Next Hydrogen

4.3 Next Hydrogen hereby represents to BioHep and the BioHep Subsidiaries as follows, and will be deemed to have so represented again at the Effective Time:
(a) except for Licensed Intellectual Property, all of the material Intellectual Property of Next Hydrogen or used, in whole or in part, by Next Hydrogen in connection with its business, is Owned Intellectual Property;
(b) all Owned Intellectual Property is owned by Next Hydrogen is free and clear of encumbrances, covenants, conditions, options to purchase and restrictions or other adverse claims or interests of any kind or nature. To the knowledge of the directors and officers of Next Hydrogen, all Licensed Intellectual Property is free and clear of encumbrances, covenants, conditions, options to purchase and restrictions or other adverse claims or interests of any kind or nature;
(c) to the extent that any Owned Intellectual Property used by, or developed on behalf of, Next Hydrogen was created by an employee of, or independent contractor or consultant to, Next Hydrogen, such persons have each irrevocably assigned to Next Hydrogen in writing all rights to such Owned Intellectual Property; Next Hydrogen has not received any notice or claim challenging ownership of or rights by Next Hydrogen to such Owned Intellectual Property or suggesting that such person has any claim of legal or beneficial ownership or other claim or interest with respect thereto nor, to the knowledge of the directors and officers of Next Hydrogen, is there a reasonable basis for such a claim;
(d) Next Hydrogen has documented procedures in place to protect the confidentiality of and all rights to the Owned Intellectual Property. Key directors, officers, employees, consultants and independent contractors of Next Hydrogen have entered into confidentiality agreements with Next Hydrogen in form adequate to protect the Owned Intellectual Property;
(e) to the knowledge of the directors and officers of Next Hydrogen, all rights to the Owned Intellectual Property or Licensed Intellectual Property are valid and
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enforceable. Next Hydrogen has not received any notice or claim challenging or questioning the validity or enforceability of any Owned Intellectual Property or Licensed Intellectual Property. There is no proceeding which is ongoing or, to the knowledge of the directors and officers of Next Hydrogen, alleged, which might result in the Owned Intellectual Property being invalidated, revoked or the subject of a compulsory licence. To the knowledge of the directors and officers of Next Hydrogen, there is no proceeding which is ongoing or alleged which might result in the Licensed Intellectual Property being invalidated or revoked or the subject of a compulsory licence;

(f) in the case of Licensed Intellectual Property, Next Hydrogen has entered into valid and enforceable written agreements (the “Licence Agreements”) pursuant to which Next Hydrogen has been granted all material licenses to develop manufacture, import, export, use, reproduce, sub-license, sell, offer for sale, or otherwise exploit the Licensed Intellectual Property to the extent required to operate all material aspects of the Business. All Licence Agreements are in full force and effect and neither Next Hydrogen nor any licensor is in default of its obligations thereunder. Correct and complete copies of all Licence Agreements have been provided to BioHep;
(g) all fees payable in respect of the maintenance of Owned Intellectual Property have been paid and all registrations and applications for registration of any Owned Intellectual Property are in good standing; Next Hydrogen has prosecuted, and is prosecuting, such applications diligently. To the knowledge of the directors and officers of Next Hydrogen, all fees payable in respect of the maintenance of the Licensed Intellectual Property have been paid and all registrations and applications for registration of any Licensed Intellectual Property are in good standing; to the knowledge of the directors and officers of Next Hydrogen, the licensors of the Licensed Intellectual Property have prosecuted, and are prosecuting, such applications diligently;
(h) to the knowledge of the directors and officers of Next Hydrogen, the conduct of its business does not infringe any other person's rights to Intellectual Property. Next Hydrogen is not or has not been a party to any action or proceeding nor, to the knowledge of the directors and officers of Next Hydrogen, has any action or proceeding been threatened, that alleges that the conduct of the business of Next Hydrogen infringes any other person's rights to the Owned Intellectual Property or the Licensed Intellectual Property, nor to the knowledge of the directors and officers of Next Hydrogen is there a reasonable basis for such a claim. To the knowledge of the directors and officers of Next Hydrogen, no person has infringed or is infringing the right of Next Hydrogen in or to any Owned Intellectual Property or Licensed Intellectual Property; and
(i) Next Hydrogen is not a party to any agreement involving the grant by Next Hydrogen to any person of any right to the Owned Intellectual Property.
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Survival of Representation and Warranties

4.4 The representations and warranties herein shall survive the performance of the Parties respective obligations hereunder and the termination of this Agreement but shall expire one year after the Effective Date.

PART 5 AGREEMENTS

Next Hydrogen Resolution and Transaction Summary

5.1 As promptly as practical following the execution of this Agreement and in compliance with Applicable Laws (including Applicable Canadian Securities Laws and applicable corporate laws) Next Hydrogen shall:
(a) prepare the Transaction Summary in the form and containing the information required by all Applicable Laws, including the Applicable Canadian Securities Laws and all applicable corporate laws, and not containing any misrepresentation with respect thereto, other than with respect to any information relating to and provided by BioHep;
(b) provide BioHep with adequate time to review and comment on the Transaction Summary;
(c) take all commercially reasonable lawful action to obtain the approval of all of the Next Hydrogen Shareholders on the Next Hydrogen Resolution; and
(d) promptly advise BioHep of any material communication (written or oral) from or claims brought by (or threatened to be brought by) any Dissenting Shareholders in opposition to the Amalgamation.
5.2 In the event Next Hydrogen becomes aware that it will not be able to obtain the approval of the requisite number the Next Hydrogen Shareholders on a written form of the Next Hydrogen Resolution, Next Hydrogen will promptly:
(a) provide written notice of same to BioHep;
(b) take all actions necessary to call and properly hold the Next Hydrogen Meeting, if applicable, as promptly as practical;
(c) prepare an information circular in the form and containing the information required by all Applicable Laws, including the Applicable Canadian Securities Laws and all applicable corporate laws, and not containing any misrepresentation with respect thereto, other than with respect to any information relating to and provided by BioHep;
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(d) provide BioHep with adequate time to review and comment on the information circular to be sent to Next Hydrogen Shareholders in connection with the Next Hydrogen Meeting, if applicable;
(e) take all commercially reasonable lawful action to solicit proxies in favour of the Amalgamation; and
(f) promptly advise BioHep of any material communication (written or oral) from or claims brought by (or threatened to be brought by) any Dissenting Shareholders in opposition to the Amalgamation.

Proposed Transaction

5.3 Next Hydrogen and BioHep shall:
(a) as soon as practicable apply to the Exchange and diligently seek the approval of the Exchange for the Proposed Transaction and the listing of the PostConsolidation BioHep Shares;
(b) as soon as practicable deliver to the Exchange the Listing Application as contemplated by this Agreement;
(c) use their reasonable commercial efforts to consummate the transactions contemplated by this Agreement; and
(d) in the event that the Resulting Issuer is not able to obtain an exemption from the sponsorship requirements of the Exchange, mutually agree upon the appointment of a sponsor for the Proposed Transaction.

Listing Application

5.4 As soon as practicable following the execution of this Agreement, and in compliance with Applicable Laws (including Applicable Canadian Securities Laws) and the policies of the Exchange:
(a) Next Hydrogen and BioHep shall cooperate in the preparation of the Listing Application, in a form mutually acceptable to the Parties, acting reasonably, and BioHep shall provide to Next Hydrogen the necessary information in respect of BioHep to ensure that the Listing Application provides information in compliance in all material respects with Exchange policies on the date of filing thereof; and
(b) Next Hydrogen and BioHep shall make commercially reasonable efforts to cause the Listing Application to be filed with applicable regulatory authorities in all jurisdictions where the same is required to be filed.

Preparation of Filings

5.5 (a) BioHep and Next Hydrogen shall cooperate in the taking of all such action as may
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be required under the BCBCA, the OBCA, Applicable Canadian Securities Laws, Exchange policies and other Applicable Laws in connection with the transactions contemplated by this Agreement.

(b) BioHep shall promptly furnish to Next Hydrogen all information concerning BioHep as may be required for inclusion in: (i) any information circular or other disclosure document sent to the shareholders of Next Hydrogen in respect of the Proposed Transaction; (ii) the Listing Application; or (iii) for the effectuation of the actions described in this Agreement and the provisions of this Section 5.5 (collectively in this Section 5.5(b) a “ Disclosure Document ”). BioHep agrees that all information provided by BioHep to Next Hydrogen for inclusion in a Disclosure Document will not, at the time the Disclosure Document is filed or delivery to third parties (as applicable), contain any misrepresentation and BioHep agrees to indemnify and save harmless Next Hydrogen and its directors, officers, employees, advisors and agents from and against any and all liabilities, claims, demands, losses, costs, damages and expenses (excluding any loss of profits or consequential damages) to which Next Hydrogen or its directors, officers, employees advisors and agents may be subject or which Next Hydrogen or its directors, officers, employees, advisors or agents may suffer, whether under the provisions of any statute or otherwise, in any way caused by, or arising, directly or indirectly, from or in consequence of: (y) any misrepresentation or alleged misrepresentation contained in any information provided to Next Hydrogen by BioHep for inclusion in any Disclosure Document; or (z) any order made or any inquiry, investigation or proceeding by any securities commission or other competent authority based upon any misrepresentation or alleged misrepresentation contained in any information provided to Next Hydrogen by BioHep for inclusion in any Disclosure Document.
(c) Next Hydrogen shall promptly furnish to BioHep all information concerning Next Hydrogen as may be required for inclusion in: (i) any information circular or other disclosure document sent to the shareholders of BioHep in respect of the Proposed Transaction; (ii) the Listing Application; or (iii) for the effectuation of the actions described in this Agreement and the provisions of this Section 5.5 (collectively in this Section 5.5(c) a “ Disclosure Document ”). Next Hydrogen agrees that all information provided by Next Hydrogen to BioHep for inclusion in a Disclosure Document will not, at the time the Disclosure Document is filed or delivery to third parties (as applicable), contain any misrepresentation and Next Hydrogen agrees to indemnify and save harmless BioHep and its directors, officers, employees, advisors and agents from and against any and all liabilities, claims, demands, losses, costs, damages and expenses (excluding any loss of profits or consequential damages) to which BioHep or its directors, officers, employees advisors and agents may be subject or which BioHep or its directors, officers, employees, advisors or agents may suffer, whether under the provisions of any statute or otherwise, in any way caused by, or arising, directly or indirectly, from or in consequence of: (y) any misrepresentation or alleged misrepresentation contained in any information provided to BioHep by Next Hydrogen for inclusion in any Disclosure Document; or (z) any order made or any inquiry, investigation
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or proceeding by any securities commission or other competent authority based upon any misrepresentation or alleged misrepresentation contained in any information provided to BioHep by Next Hydrogen for inclusion in any Disclosure Document.

BioHep Consolidation

5.6 Prior to the Effective Time, BioHep shall effect the BioHep Consolidation. All outstanding securities of BioHep will be adjusted accordingly.

BioHep Arrangement

5.7 Prior to the Effective Time, BioHep and POA Subco shall effect the BioHep Arrangement.
5.8 POA SubCo hereby covenants and agrees with BioHep and Next Hydrogen and their directors, officers, employees, agents, advisors and representatives (the Persons being indemnified by POA Subco are hereinafter individually referred to as the “ Arrangement Indemnified Party ”), to indemnify and save harmless the Arrangement Indemnified Party from and against any and all Claims which may be suffered or incurred by the Arrangement Indemnified Party, directly or indirectly, from or in consequence of the BioHep Arrangement. The provisions set forth in Section 6.4 hereof shall apply to any Claims for which POA Subco may be obligated to indemnify an Arrangement Indemnified Party pursuant to this Agreement.

Concurrent Financing

5.9 Next Hydrogen and/or SubCo may complete a Concurrent Financing prior to the Effective Date. It is currently anticipated that the Concurrent Financing will consist of the issuance of subscription receipts at price of not less than $2.00 per subscription receipt which will automatically convert into Next Hydrogen Shares or shares of SubCo immediately prior to the Effective Time in accordance with their terms on the basis of one Next Hydrogen Share or share of SubCo for each outstanding subscription receipt. In connection with the Concurrent Financing, Next Hydrogen and/or SubCo may pay cash fees in connection with the Concurrent Financing.

Name Change

5.10 On or prior to the Effective Date, BioHep shall change its name to “ Next Hydrogen Solutions Inc. ” or such other name as may be agreed by the Parties, subject to the approval of the Exchange and as may be accepted by the Companies Registrar (the “ Name Change ”).
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PART 6 INDEMNIFICATION

Indemnification by Next Hydrogen

6.1 Subject to Section 6.3, Next Hydrogen hereby covenants and agrees with each of BioHep and SubCo, and their respective directors, officers, employees, agents, advisors and representatives (the Persons being indemnified by Next Hydrogen are hereinafter individually referred to as the “ BioHep Indemnified Party ”), to indemnify and save harmless the BioHep Indemnified Party from and against any and all Claims which may be suffered or incurred by the BioHep Indemnified Party as a result of, or arising out of:
(a) any non-fulfillment of any covenant or agreement on the part of the Indemnifying Party under this Agreement; or
(b) any incorrectness in or breach of any representation or warranty of the Indemnifying Party contained in this Agreement,

except that Next Hydrogen shall not be liable in any such case to the extent that any such Claims arise out of or are based upon the negligence of a BioHep Indemnified Party or the material non-compliance by a BioHep Indemnified Party with any requirement of Applicable Laws in connection with the transactions contemplated by this Agreement.

Indemnification by BioHep

6.2 Subject to Section 6.3, BioHep hereby covenants and agrees with Next Hydrogen and its directors, officers, employees, agents, advisors and representatives (the Persons being indemnified by BioHep are hereinafter individually referred to as the “ Next Hydrogen Indemnified Party ”), to indemnify and save harmless the Next Hydrogen Indemnified Party from and against any and all Claims which may be suffered or incurred by the Next Hydrogen Indemnified Party as a result of, or arising out of:
(a) any non-fulfillment of any covenant or agreement on the part of the BioHep under this Agreement; or
(b) any incorrectness in or breach of any representation or warranty of BioHep contained in this Agreement; or
(c) the BioHep Arrangement,

except that BioHep shall not be liable in any such case to the extent that any such Claims arise out of or are based upon the negligence of a Next Hydrogen Indemnified Party or the material non-compliance by a Next Hydrogen Indemnified Party with any requirement of Applicable Laws in connection with the transactions contemplated by this Agreement.

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Limitation on Indemnification

6.3 The indemnification obligations of Next Hydrogen pursuant to Section 6.1 and the indemnification obligations of BioHep pursuant to Section 6.2 (each an “ Indemnifying Party ”) shall be subject to the following:
(a) the Claim shall have been made in writing in accordance with Section 6.4 within one year of the Effective Date; and
(b) an Indemnifying Party shall not be required to indemnify a BioHep Indemnified Party or a Next Hydrogen Indemnified Party, as applicable (each an “ Indemnified Party ”) until the aggregate Claims sustained by that Indemnified Party exceeds a value of $50,000, in which case, the Indemnifying Party shall be obligated to the Indemnified Party for all Claims.

Procedure for Indemnification

6.4 The following provisions shall apply to any Claims for which the Indemnifying Party may be obligated to indemnify an Indemnified Party pursuant to this Agreement:
(a) upon receipt from a third party by the Indemnified Party of notice of a Claim or the Indemnified Party becoming aware of any Claims in respect of which the Indemnified Party proposes to demand indemnification from the Indemnifying Party, the Indemnified Party shall give notice to that effect to the Indemnifying Party with reasonable promptness, provided that failure to give such notice shall not relieve the Indemnifying Party from any liability it may have to the Indemnified Party except to the extent that the Indemnifying Party is prejudiced thereby;
(b) in the case of Claims arising from third parties, the Indemnifying Party shall have the right by notice to the Indemnified Party not later than 30 days after receipt of the notice described in Section 6.4(a) above to assume the control of the defense, compromise or settlement of the Claims, provided that such assumption shall, by its terms, be without costs to the Indemnified Party and the Indemnifying Party shall at the Indemnified Party’s request furnish it with reasonable security against any costs or other liabilities to which it may be or become exposed by reason of such defense, compromise or settlement;
(c) upon the assumption of control by the Indemnifying Party as aforesaid, the Indemnifying Party shall diligently proceed with the defense, compromise or settlement of the Claims at its sole expense, including employment of counsel reasonably satisfactory to the Indemnified Party and, in connection therewith, the Indemnified Party shall co-operate fully, but at the expense of the Indemnifying Party, to make available to the Indemnifying Party all pertinent information and witnesses under the Indemnified Party’s control, make such assignments and take such other steps as in the opinion of counsel for the Indemnifying Party are necessary to enable the Indemnifying Party to conduct such defense; provided always that the Indemnified Party shall be entitled to reasonable security from the
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Indemnifying Party for any expense, costs or other liabilities to which it may be or may become exposed by reason of such co-operation;

(d) the final determination of any such Claims arising from third parties, including all related costs and expenses, will be binding and conclusive upon the Parties as to the validity or invalidity, as the case may be, of such Claims against the Indemnifying Party hereunder; and
(e) should the Indemnifying Party fail to give notice to the Indemnified Party as provided in Section 6.4(b) above, the Indemnified Party shall be entitled to make such settlement of the Claims as in its sole discretion may appear reasonably advisable, and such settlement or any other final determination of the Claims shall be binding upon the Indemnifying Party.

Sole Remedy

6.5 No Party may make any Claim against any other Party except by making a Claim pursuant to and in accordance with the provisions of this Part 6; provided, however, that if the provisions of this Article 6 shall be invalid or unenforceable, the Parties shall have any other rights and remedies available to them under law or in equity.

PART 7 CONDITIONS PRECEDENT

Mutual Conditions Precedent

7.1 The respective obligations of the Parties to consummate the transactions contemplated hereby, and in particular the completion of the Amalgamation, are subject to the satisfaction, on or before the Effective Date or such other time specified, of the following conditions:
(a) the Next Hydrogen Resolution shall have been executed by the requisite number of Next Hydrogen Shareholders or passed by a special majority of all the Next Hydrogen Shareholders at the Next Hydrogen Meeting, as the case may be;
(b) BioHep shall have received all shareholder and/or board approvals necessary or desirable in connection with the Amalgamation, including, without limitation, approval of the Arrangement, the BioHep Consolidation, the Name Change, the Stock Option Plan, and the election of six (6) directors;
(c) BioHep shall have effected the Arrangement, the BioHep Consolidation, the Name Change, the Amendment, the Stock Option Plan, and the election of six (6) directors on or prior to the Effective Date;
(d) the Amalgamation shall have become effective on or prior to the Outside Date;
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(e) BioHep and Next Hydrogen shall have executed and delivered a copy of the Listing Application to the Exchange and such Listing Application shall have been conditionally accepted by the Exchange subject only to customary conditions of closing, provided that if the Amalgamation is rejected by the Exchange, (i) all recourse or rights of appeal as contemplated hereby will have been exhausted, and (ii) the Party wishing to terminate this Agreement on this basis will have first used commercially reasonable efforts to negotiate the terms of the Proposed Transaction objectionable to the Exchange on terms acceptable to the Parties, acting reasonably;
(f) BioHep shall not be in default of the requirements of the Exchange and any securities commission and no order shall have been issued and currently in effect preventing the Amalgamation or the trading of any securities of BioHep;
(g) all other consents, orders and approvals, including regulatory and third-party approvals and orders, necessary or desirable for the completion of the transactions provided for in this Agreement and the Amalgamation shall have been obtained or received from the Persons, authorities or bodies having jurisdiction in the circumstances;
(h) this Agreement shall not have been terminated under Part 9;
(i) dissent rights shall not have been exercised with respect to the Amalgamation by Next Hydrogen Shareholders which in the aggregate represent 10% or more of issued and outstanding Next Hydrogen Shares on the execution date of the Next Hydrogen Resolution or the record date of the Next Hydrogen Meeting, as applicable;
(j) the availability of prospectus exemptions for the Amalgamation under Applicable Canadian Securities Laws and the availability of registration exemptions for the Amalgamation under applicable securities laws of the United States in respect of any BioHep Shares to be issued in the United States;
(k) the Exchange shall have granted an exemption from the Sponsorship requirement or a Sponsor shall have filed an acceptable Sponsor’s report with the Exchange; and
(l) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and the Amalgamation.

The foregoing conditions are for the mutual benefit of BioHep and SubCo on the one hand and Next Hydrogen on the other hand and may be waived, in whole or in part, jointly by the Parties at any time. If any of the foregoing conditions are not satisfied or waived on or before the Effective Date then a Party may terminate this Agreement by written notice to the other Parties in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of such terminating Party’s breach of this Agreement.

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Additional Conditions to Obligations of BioHep and SubCo

7.2 The obligations of BioHep and SubCo to consummate the transactions contemplated hereby, and in particular to complete the Amalgamation, are subject to the satisfaction, on or before the Effective Date or such other time specified, of the following conditions:
(a) Next Hydrogen shall have performed, satisfied and complied with all obligations, covenants and agreements to be performed and complied with by it on or before the Effective Date pursuant to the terms of this Agreement and that the representations and warranties of Next Hydrogen made in this Agreement shall be true and correct in all material respects as at the Effective Date with the same force and effect as if such representations and warranties had been made on and as of such date;
(b) Next Hydrogen shall have furnished BioHep with:
- (i) certified copies of the resolutions duly passed by the board of directors of Next Hydrogen approving this Agreement and the consummation of the transactions contemplated hereby;
- (ii) certified copies of the Next Hydrogen Resolution approved by the Next Hydrogen Shareholders;
- (iii) certified copies of Next Hydrogen’s Constating Documents;
- (iv) a certificate of good standing of Next Hydrogen dated within two days of the Effective Date;
- (v) if applicable, duly executed investment agreements, including accredited investor certifications, for any shareholders of Next Hydrogen resident in the United States, in a form satisfactory to BioHep and its counsel, acting reasonably;
- (vi) a certificate of Next Hydrogen addressed to BioHep and dated the Effective Date, signed on behalf of Next Hydrogen by two senior officers of Next Hydrogen, confirming that the conditions in Section 7.2(a), (c), (d) and (e) have been satisfied;
(c) at or prior to the Effective Date and effective upon completion of the Amalgamation, the Resulting Issuer and Next Hydrogen shall have executed and delivered releases to the resigning directors and officers of BioHep, in a form acceptable to such directors and officers;
(d) no act, action, suit, proceeding, objection or opposition shall have been taken against or affecting Next Hydrogen before or by any domestic or foreign court, tribunal or Governmental Agency or other regulatory or administrative agency or commission by any elected or appointed public official or private Person in Canada or elsewhere, whether or not having the force of law and no law,
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regulation, policy, judgment, decision, order, ruling or directive (whether or not having the force of law) shall have been enacted, promulgated, amended or applied, which in the sole judgment of BioHep, acting reasonably, in either case has had or, if the Amalgamation was consummated, would result in a Material Adverse Change respecting Next Hydrogen taken as a whole or would materially impede the ability of the Parties to complete the Amalgamation;

(e) there shall not have occurred any Material Adverse Change of Next Hydrogen taken as a whole;
(f) the Exchange escrow agreement shall be duly executed and delivered by all Parties thereto;
(g) BioHep shall have received consents from the Next Hydrogen nominees to act as directors of BioHep with effect as of the Effective Date; and
(h) the holders of the issued and outstanding Next Hydrogen Shares holding marketable title thereto, free and clear of any and all Encumbrances, liens, charges and demands of whatsoever nature.

The conditions in this Section 7.2 are for the exclusive benefit of BioHep and may be asserted by BioHep regardless of the circumstances or may be waived by BioHep in its sole discretion, in whole or in part, at any time and from time to time without prejudice to any other rights which BioHep may have. If any of the foregoing conditions in this Section 7.2 are not satisfied or waived on or before the Effective Date then BioHep may terminate this Agreement by written notice to Next Hydrogen in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of BioHep’s breach of this Agreement.

Additional Conditions to Obligations of Next Hydrogen

7.3 The obligations of Next Hydrogen to consummate the transactions contemplated hereby, and in particular to complete the Amalgamation, is subject to the satisfaction, on or before the Effective Date or such other time specified, of the following conditions:
(a) BioHep and SubCo shall have performed, satisfied and complied with all obligations, covenants and agreements to be performed and complied with by them on or before the Effective Date pursuant to the terms of this Agreement and that the representations and warranties of BioHep and SubCo made in this Agreement shall be true and correct in all material respects as at the Effective Date with the same force and effect as if such representations and warranties had been made on and as of such date;
(b) the shares of BioHep to be issued to the Next Hydrogen Shareholders shall be issued as fully paid and non-assessable common shares in the capital of BioHep, free and clear of any and all Encumbrances, liens, charges, demands of whatsoever nature, except those pursuant to any relevant Exchange policies or applicable securities laws;
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(c) between the date of this Agreement and the Effective Time, BioHep shall not have incurred or otherwise accepted liability for any contractual obligation, liability or expense out of the ordinary course of its business in excess of $25,000, other than a contractual obligation, liability or expense of BioHep directly related to the Proposed Transaction;
(d) BioHep having the Estimated Working Capital Amount (as such term is defined in the Arrangement Agreement);
(e) BioHep shall have furnished Next Hydrogen with:
(i) certified copies of the resolutions duly passed by the boards of directors of BioHep and SubCo approving this Agreement and the consummation of the transactions contemplated hereby;
(ii) certified copies of the resolutions of BioHep, as the sole shareholder of SubCo, approving this Agreement and the consummation of the transactions contemplated hereby;
(iii) certified copies of BioHep and SubCo’s Constating Documents;
(iv) evidence that BioHep is a reporting issuer in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Quebec and is not in default of any of the provisions therein;
(v) certificates of good standing of BioHep and SubCo dated within two days of the Effective Date; and
(vi) a certificate of BioHep addressed to Next Hydrogen and dated the Effective Date, signed on behalf of BioHep by a senior officer of BioHep, confirming that the conditions in Section 7.3(a), (d), (f), and (g) have been satisfied;
(f) no act, action, suit, proceeding, objection or opposition shall have been taken against or affecting BioHep before or by any domestic or foreign court, tribunal or Governmental Agency or other regulatory or administrative agency or commission by any elected or appointed public official or private Person in Canada or elsewhere, whether or not having the force of law and no law, regulation, policy, judgment, decision, order, ruling or directive (whether or not having the force of law) shall have been enacted, promulgated, amended or applied, which in the sole judgment of Next Hydrogen, acting reasonably, in either case has had or, if the Amalgamation was consummated, would result in a Material Adverse Change respecting BioHep or would materially impede the ability of the Parties to complete the Amalgamation;
(g) there shall not have occurred any Material Adverse Change of BioHep or SubCo;
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(h) at the time of the closing of the Amalgamation, each of the current directors and officers of BioHep and SubCo as at the date hereof, shall have provided a resignation and mutual release in form and substance satisfactory to Next Hydrogen, acting reasonably, and BioHep shall have taken all necessary action to cause the board of directors and officers of BioHep post-closing to be comprised of the directors and officers set forth in Section 2.10 and Section 2.11; and
(i) at the time of Closing BioHep shall be up to date and current in respect of all corporate and tax filings.

The conditions in this Section 7.3 are for the exclusive benefit of Next Hydrogen and may be asserted by Next Hydrogen regardless of the circumstances or may be waived by Next Hydrogen in its sole discretion, in whole or in part, at any time and from time to time without prejudice to any other rights which Next Hydrogen may have. If any of the foregoing conditions in this Section 7.3 are not satisfied or waived on or before the Effective Date then Next Hydrogen may terminate this Agreement by written notice to BioHep in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of Next Hydrogen’s breach of this Agreement.

Notice and Effect of Failure to Comply with Conditions

7.4 Each of BioHep and Next Hydrogen shall give prompt notice to the other of the occurrence, or failure to occur, at any time from the date hereof to the Effective Date of any event or state of facts which occurrence or failure would, or would be likely to: (i) cause any of the representations or warranties of such Party contained herein to be untrue or inaccurate in any material respect; or (ii) result in the failure to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by any Party hereunder; provided, however, that no such notification will affect the representations or warranties of the Parties or the conditions to the obligations of the Parties hereunder.

Satisfaction of Conditions

7.5 The conditions set out in this Part 7 are conclusively deemed to have been satisfied, waived or released when, with the agreement of the Parties, the Amalgamation Application and Articles are filed under the CBCA to give effect to the Amalgamation.

PART 8 AMENDMENT

Amendment

8.1 This Agreement may at any time and from time to time on or before the Effective Date be amended by written agreement of the Parties hereto.
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PART 9 TERMINATION

Termination

9.1 (a) This Agreement may be terminated at any time in each of the following circumstances (each then being, a “ Termination Date ”):
- (i) by written agreement executed and delivered by BioHep, SubCo and Next Hydrogen;
- (ii) by any Party if the Effective Date shall not have occurred by the Outside Date unless the failure to complete the Amalgamation by such date is the result, directly or indirectly, of a breach of this Agreement by the Party seeking to terminate the Agreement, in which case this Agreement shall not be terminated pursuant to this Section 9.1(b);
- (iii) as set out in Sections 7.1, 7.2 and 7.3 of this Agreement; or
- (iv) by a non-breaching Party, in the event of a material breach of a material representation, warranty or covenant contained herein which is not cured within 10 Business Days of a non-breaching Party providing written notice of the breach to the breaching Party.
(b) If this Agreement is terminated in accordance with the foregoing provisions of this Section 9.1, this Agreement shall forthwith become void and no Party shall have any liability or further obligation to the other Parties hereunder except for each Party’s obligations under Sections 5.8, 6.1, 6.2, 6.3, 6.4, 6.5, 10.7, 10.8, 10.8, 10.9, 10.10 and 10.11 hereunder, which shall survive such termination, and provided that neither the termination of this Agreement nor anything contained in this Section 9.1 shall relieve any Party from any liability for any breach by it of this Agreement, including from any inaccuracy in any of its representations and warranties and any non-performance by it of its covenants made herein, prior to the date of such termination.

PART 10 GENERAL

Notices

10.1 All notices that may be or are required to be given pursuant to any provision of this Agreement are to be given or made in writing and served personally, delivered by courier or sent by electronic transmission:
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(a) in the case of BioHep, SubCo or POA Subco, to:

BioHep Technologies Ltd. 440-890 West Pender Street Vancouver, B.C. V6C 1J9 Attention: Donald Gordon Email: [email protected]

with a copy to:

Buttonwood Law Corporation Suite 1510-789 West Pender Street Vancouver, B.C. V6C 1H2 Attention: Mouane Sengsavang Email: [email protected]

(b) in the case of Next Hydrogen, to:

Next Hydrogen Corporation 102-2680 Matheson Blvd. E, Mississauga, ON L4W 0A5 Attention: Raveel Afzaal Email: [email protected]

with a copy to:

Borden Ladner Gervais LLP Suite 1900, 520 3[rd] Ave. SW Calgary, AB T2P 0R3 Attention: Louise Lee Email: [email protected]

or such other address as the Parties may, from time to time, advise the other Parties hereto by notice in writing. The date or time of receipt of any such notice will be deemed to be the date of delivery or the time such facsimile or other electronic transmission is received.

Binding Effect

10.2 This Agreement shall be binding upon and enure to the benefit of the Parties hereto and their respective successors and permitted assigns.

Assignment

10.3 Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the Parties hereto without the prior written consent of the other Parties hereto.
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Entire Agreement

10.4 This Agreement, together with the agreements and documents referred to herein, constitute the entire agreement among the Parties pertaining to the subject matter hereof and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, among the Parties with respect to the subject matter hereof.

Public Communications

10.5 Each of BioHep and Next Hydrogen agree to consult with each other prior to issuing any press releases or otherwise making public statements with respect to this Agreement or the Amalgamation or making any filing with any Governmental Authority with respect thereto. Without limiting the generality of the foregoing, no Party shall issue any press release regarding the Amalgamation, this Agreement or any transaction relating to this Agreement without first providing a draft of such press release to the other Party and reasonable opportunity for comment and for such comments to be incorporated into such press release; provided, however, that the foregoing shall be subject to each Party’s overriding obligation to make any such disclosure required in accordance with Applicable Laws. If such disclosure is required and the other Party has not reviewed or commented on the disclosure, the Party making such disclosure shall use all commercially reasonable efforts to give prior oral or written notice to the other Party, and if such prior notice is not possible, to give such notice promptly following such disclosure.

No Shop

10.6 BioHep agrees that it will not, nor will it permit any of its respective directors, officers, affiliates, employees, representatives or agents (including and without limitation, investment bankers, attorneys and accountants) directly or indirectly to, solicit, discuss, encourage or accept any offer for the purchase of BioHep, or the business or the assets BioHep, whether as a primary or backup offer, or take any other action with the intention or reasonable foreseeable effect of leading to any commitment or agreement to sell BioHep, or the business or the assets of such BioHep (an “ alternative transaction ”). In addition, BioHep will conduct its operations according to its ordinary and usual course of business consistent with past practices and will not enter into any material transactions or incur any material liabilities (including without limitation, issuing or agreeing to issue any securities other than as expressly contemplated in this Agreement) without obtaining the consent of Next Hydrogen, which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, nothing herein will restrict BioHep from taking such actions as may be required in order to discharge their obligations pursuant to applicable corporate laws.

BioHep represents and warrants to Next Hydrogen that it is not currently in any discussions or negotiations with any other Person with respect to any alternative transaction. BioHep will promptly notify Next Hydrogen of any alternative transaction of which any director, senior officer or agent of BioHep, is or becomes aware of, any amendment to any of the foregoing or any request for non-public information relating to

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BioHep. Such notice will include a description of the material terms and conditions of any such proposal and the identity of the Person making such proposal, inquiry, request or contact.

Costs

10.7 Each Party shall be responsible for its own costs and expenses incurred with respect to the transactions contemplated herein. Notwithstanding the foregoing and for the purposes of clarity, Next Hydrogen shall be responsible for paying the costs and fees payable to the Exchange regarding their review of the Proposed Transaction and the Personal Information Forms to be submitted by the proposed executive officers and directors of the Resulting Issuer following the completion of the Proposed Transaction and Next Hydrogen shall be primarily responsible for the expenses for the preparation of the Listing Application related to the Proposed Transaction.

Confidentiality

10.8 Each Party acknowledges that all information to be disclosed by the other Party in connection with the Proposed Transaction is highly sensitive, confidential and proprietary in nature. Except as and to the extent required by law, each Party and its affiliates and Representatives (as applicable, the “ Receiving Party ”) shall not disclose or use, and it shall cause its affiliates and Representatives not to disclosure or use, any Confidential Information (as defined below) with respect to the other Party, its affiliates or Representatives (the “ Disclosing Party ”) furnished, or to be furnished, by the Disclosing Party to the Receiving Party in connection herewith at any time or in any manner, other than in connection with the evaluation of the Proposed Transaction and in accordance with this Agreement.
10.9 “ Confidential Information ” means all information of a Party that a prudent business person would deem to be of such sensitive nature that its unauthorized dissemination would cause material harm, including, without limitation: information concerning or relating to the Disclosing Party’s business, affairs, financial position, assets, operations, activities, prospects, trade secrets, technology, technical, information, marketing information and marketing plans and strategies, customer and prospective customer lists, records, and information, together with all compilations, notes, or other documents prepared by or for the Disclosing Party containing or based upon such information, but shall not include:
(a) information, which is or becomes available to the public, other than as a result of disclosure by the Receiving Party;
(b) information which the Receiving Party can prove was, at the time of disclosure, already in the possession of the Receiving Party on a non-confidential and lawful basis; or
(c) has become available to the Receiving Party or its Representatives on a nonconfidential basis from a person who is not, to the knowledge of the Receiving Party or its Representatives, otherwise bound by confidentiality obligations to the
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provider of such information or otherwise prohibited from transmitting the information to the Receiving Party or its Representatives.

10.10 Except with the prior written consent of the Disclosing Party, each Receiving Party will hold all Confidential Information in strictest confidence, except such information and documents that are required to be disclosed by applicable law.
10.11 If this Agreement is terminated pursuant to Section 9.1: (a) each Receiving Party shall promptly upon request return to the Disclosing Party any Confidential Information in the Receiving Party’s possession; and (b) the terms of Sections 10.9, 10.10 and 10.11 shall survive termination of this Agreement for a period of two years from the Termination Date.

Severability

10.12 If any one or more of the provisions or parts thereof contained in this Agreement should be or become invalid, illegal or unenforceable in any respect, the remaining provisions or parts thereof contained herein shall be and shall be conclusively deemed to be severable therefrom and the validity, legality or enforceability of such remaining provisions or parts thereof shall not in any way be affected or impaired by the severance of the provisions or parts thereof severed. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.

Further Assurances

10.13 Each Party hereto shall, from time to time and at all times hereafter, at the request of the other Parties hereto, but without further consideration, do all such further acts, and execute and deliver all such further documents and instruments and provide all such further assurances as may be reasonably required in order to fully perform and carry out the terms and intent hereof.
10.14 The Parties acknowledge that the Listing Application and the listing of the PostConsolidation BioHep Shares will require the acceptance of the Exchange and the Parties intend, at the appropriate time, to use all reasonable commercial efforts to obtain such acceptance. BioHep and Next Hydrogen will fully cooperate in the compilation and drafting of the Listing Application, to be submitted by BioHep to the Exchange to list the Post-Consolidation BioHep Shares on the Exchange upon completion of the Proposed Transaction.

Time of Essence

10.15 Time shall be of the essence of this Agreement.
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Applicable Law and Enforcement

10.16 This Agreement shall be governed, including as to validity, interpretation and effect, by the laws of the Province of British Columbia and the laws of Canada applicable therein. The Parties hereby irrevocably submit and attorn to the non-exclusive jurisdiction of the courts of the Province of British Columbia.

Waiver

10.17 Any Party may, on its own behalf only, (i) extend the time for the performance of any of the obligations or acts of the other Parties, (ii) waive compliance with the other Parties’ agreements or the fulfillment of any conditions to its own obligations contained herein, or (iii) waive inaccuracies in the other Parties’ representations or warranties contained herein or in any document delivered by the other Parties; provided, however, that any such extension or waiver shall be valid only if set forth in an instrument in writing and, unless otherwise provided in the written waiver, will be limited to the specific breach or condition waived.

Counterparts

10.18 This Agreement and any amendments thereto (and any other agreements, notices or documents contemplated thereby) may be executed and delivered by facsimile transmission or other form of electronic recorded transmission (including via electronic mail via the Internet) and in any number of counterparts and all such facsimile or other electronically transmitted copies and counterparts shall be deemed to be an original hereof and for all purposes constitute one agreement, be binding on the Parties, provided each Party has executed and delivered at least one counterpart to the other Parties, and each may be relied upon by each Party as such for any and all purposes.

[remainder of page intentionally left blank - signature page immediately follows]

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IN WITNESS WHEREOF the Parties have executed this Amalgamation Agreement as of the date first above written.

BIOHEP TECHNOLOGIES LTD.

Per: (signed) “ Don Gordon ” Authorized Signatory

2819845 ONTARIO INC.

Per: (signed) “ Don Gordon ” Authorized Signatory

1291549 B.C. LTD.

Per: (signed) “ Don Gordon ” Authorized Signatory

NEXT HYDROGEN CORPORATION

Per: (signed) “ Raveel Afzaal” Authorized Signatory

EXHIBIT “A”

FORM OF ARTICLES AND BY-LAWS OF AMALCO

BY-LAW NO. 1

A by-law relating generally to the transaction of the business and affairs of

XXXXXXX ONTARIO INC.

Section	1	-	Interpretation
Section	2	-	Business of the Corporation
Section	3	-	Borrowing and Securities
Section	4	-	Directors
Section	5	-	Delegation
Section	6	-	Officers
Section	7	-	Protection of Directors, Officers and Others
Section	8	-	Shares
Section	9	-	Dividends and Rights
Section	10	-	Meetings of Shareholders
Section	11	-	Notices
Section	12	-	Effective Date

BE IT ENACTED as a by-law of the Corporation as follows:

SECTION 1 INTERPRETATION

1.1 Definitions - In the by-laws of the Corporation, unless the context otherwise requires, capitalized terms used but not defined in this By-Law shall have the meanings attributed to them in the Act, except that:

" Act " means the Business Corporations Act (Ontario), and any statute that may be substituted therefor, by way of re-enactment, remaking, amendment, or changing, as in effect from time to time;

" appoint " (and terms derived from it) includes " elect " and vice-versa;

" articles " means the original or restated articles of incorporation, articles of amendment, articles of amalgamation, articles of continuance, articles of reorganization, articles of arrangement, articles of dissolution or articles of revival and includes any amendments thereto;

" Board " means the board of directors of the Corporation;

" by-laws " means this by-law and all other by-laws of the Corporation from time to time in force and effect;

" Corporation " means XXXXXXX Ontario Inc.;

" meeting of shareholders " includes an annual meeting of shareholders or a special meeting of shareholders; " special meeting of shareholders " includes a meeting of any class or classes of shareholders and a special meeting of all shareholders entitled to vote at an annual meeting of shareholders;

" non-business day " means Saturday, Sunday and any other day that is a holiday as defined in the Interpretation Act (Canada) and any statute that may be substituted therefor, as amended, restated or in effect from time to time;

" recorded address " means:

(a) in the case of a shareholder, that person's address as recorded in the securities register;
(b) in the case of joint shareholders, the address recorded in the securities register in respect of such joint holding or the first address so recorded if there are more than one; and
(c) in the case of a director, officer, auditor or member of a committee of the Board, that individual's latest address as recorded in the records of the Corporation;

" Regulations " means the regulations made under the Act, as they may be amended or revised, as in effect from time to time;

" signing officer " means, in relation to any instrument, any person authorized to sign the instrument on behalf of the Corporation by Section 2.2 or by a resolution passed pursuant thereto; and

" unanimous shareholder agreement " means:

(a) an otherwise lawful written agreement among all the shareholders of the Corporation, or among all the shareholders and one or more persons who are not shareholders, that restricts, in whole or in part, the powers of the directors to manage, or supervise the management of, the business and affairs of the Corporation, as amended, supplemented, restated and replaced from time to time in accordance with its provisions; or
(b) a written declaration made by a person who is the beneficial owner of all of the issued shares of the Corporation that restricts in whole or in part, the powers of the directors to manage, or supervise the management of, the business and affairs of the Corporation, as amended, supplemented, restated and replaced from time to time in accordance with its provisions.

1.2 Interpretation – Words in the singular include the plural and vice-versa, words in one gender include all genders, and words importing persons include individuals, bodies corporate, partnerships, trusts and unincorporated organizations.

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SECTION 2 BUSINESS OF THE CORPORATION

2.1 Corporate Seal - The Corporation may have one or more different corporate seals which may be adopted or changed from time to time by the Board, on which the name of the Corporation appears in the language or one or more of the languages set out in the articles.

2.2 Execution of Instruments - Deeds, transfers, assignments, contracts, obligations, certificates and other instruments may be signed on behalf of the Corporation by any one of the directors or officers. In addition, the Board may from time to time direct the manner in which and the person or persons by whom any particular instrument or class of instruments may or shall be signed. Any signing officer may affix the corporate seal (if any) to any instrument. Any signing officer may certify a copy of any instrument, resolution, by-law or other document of the Corporation to be a true copy thereof.

2.3 Execution in Counterpart - Any articles, notice, resolution, requisition, statement or other document executed in several documents of like form each of which is executed by one or more of the persons required or permitted, as the case may be, to do so, and all of which, taken together, bear the signatures of all such persons, shall be deemed to constitute one document and to bear date as of the date of execution thereof by the last such person.

2.4 Banking Arrangements - The banking business of the Corporation including, without limitation, the borrowing of money and the giving of security therefore, shall be transacted with such banks, trust companies or other bodies corporate or organizations as may from time to time be designated by or under the authority of the Board. Such banking business or any part thereof shall be transacted under such agreements, instructions and delegations of powers as the Board may from time to time prescribe or authorize.

2.5 Voting Rights in Other Bodies Corporate - The signing officers of the Corporation may execute and deliver proxies and arrange for the issuance of voting certificates or other evidence of the right to exercise the voting rights attaching to any securities held by the Corporation. Such instruments, certificates or other evidence shall be in favour of such person or persons as may be determined by the signing officers executing such proxies or arranging for the issuance of voting certificates or such other evidence of the right to exercise such voting rights. In addition, the Board may from time to time direct the manner in which and the person or persons by whom any particular voting rights or class of voting rights may or shall be exercised.

2.6 Withholding Information from Shareholders - Subject to the Act, no shareholder shall be entitled to access to any information respecting the Corporation's business which, in the opinion of the Board, it would not be in the interests of the shareholders or the Corporation to communicate to the public. The Board may from time to time determine whether and to what extent and at what time and place and under what conditions or regulations the accounts, records and documents of the Corporation or any of them shall be open to the inspection of shareholders and no shareholder shall have any right of inspecting any account, record or document of the Corporation except as conferred by the Act or authorized by the Board or by resolution passed at a meeting of shareholders.

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SECTION 3 BORROWING AND SECURITIES

3.1 Borrowing Power - Without limiting the borrowing powers of the Corporation as provided by the Act, but subject to the articles and any unanimous shareholder agreement, the Board may from time to time on behalf of the Corporation, without authorization of the shareholders:

(a) borrow money on the credit of the Corporation;
(b) issue, reissue, sell, pledge or hypothecate bonds, debentures, notes or other evidences of indebtedness of the Corporation, whether secured or unsecured;
(c) give a guarantee on behalf of the Corporation to secure payment or performance of any present or future indebtedness, liability or obligation of any person; and
(d) mortgage, hypothecate, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired real or personal, movable or immovable, property of the Corporation including book debts, rights, powers, franchises and undertakings, to secure any such bonds, debentures, notes or other evidences of indebtedness or guarantee or any other present or future indebtedness, liability or obligation of the Corporation.

Nothing in this Section limits or restricts the borrowing of money by the Corporation on bills of exchange or promissory notes made, drawn, accepted or endorsed by or on behalf of the Corporation.

3.2 Delegation - Subject to any unanimous shareholder agreement, the Board may from time to time delegate to a committee of the Board or to a director or an officer of the Corporation as may be designated by the Board all or any of the powers conferred on the Board by Section 3.1 or by the Act to such extent and in such manner as the Board shall determine at the time of each such delegation.

SECTION 4 DIRECTORS

4.1 Number of Directors and Quorum – Subject to the articles, the Board shall consist of the number of directors specified in the articles, except that if the articles provide for a minimum and maximum number of directors, the board shall consist of the number of directors determined from time to time by a special resolution of the shareholders (or, if the directors are empowered by a special resolution to determine the number, by a resolution of the Board) within such minimum and maximum. Subject to Section 4.18, a majority of the number of directors so specified or determined shall constitute a quorum at any meeting of the Board.

4.2 Qualification - No person shall be qualified for election as a director:
(a) if the person is less than 18 years of age;

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(b) if the person has been found under the Substitute Decisions Act, 1992 (Ontario) or under the Mental Health Act (Ontario) to be incapable of managing property or who has been found to be incapable by a court in Canada or elsewhere;
(c) if the person is not an individual; or
(d) if the person has the status of a bankrupt.

Subject to the articles, a director need not be a shareholder. Subject to the Act, at least 25% of the directors must be resident Canadians. If the Corporation has less than four directors, at least one of them, or the sole director, as the case may be, must be a resident Canadian.

4.3 Election and Term - The election of directors shall take place at the first meeting of shareholders and at each annual meeting of shareholders and all the directors then in office shall cease to hold office but, if qualified, shall be eligible for re-election. The election shall be by resolution. If an election of directors is not held at the proper time, the incumbent directors shall continue in office until their successors are elected.

4.4 Removal of Directors - Subject to the Act, the shareholders may by ordinary resolution passed at an annual or special meeting remove any director from office and the vacancy created by such removal may be filled at the same meeting failing which it may be filled by the Board.

4.5 Vacation of Office - A director ceases to hold office when such director: (a) dies or, subject to the Act, resigns; (b) is removed from office by the shareholders in accordance with the Act; or (c) ceases to be qualified for election as a director in accordance with the Act. A resignation of a director becomes effective at the time a written resignation is received by the Corporation or at the time specified in such resignation if it is later than the time of receipt.

4.6 Vacancies - Subject to the Act and the articles, a quorum of the Board may fill a vacancy in the Board, except a vacancy resulting from:

(a) an increase in the number of directors, unless the directors are authorized to determine the number of directors and the appointment of an additional director would not result in a total number of directors greater than one and one-third times the number of directors required to have been elected at the last annual meeting of shareholders;
(b) an increase in the maximum number of directors; or
(c) a failure of the shareholders to elect the number of directors required to be elected at any meeting of shareholders.

In the absence of a quorum of the Board, or if the vacancy has arisen from a failure of the shareholders to elect the number of directors required to be elected at any meeting of shareholders, the Board shall forthwith call a special meeting of shareholders to fill the vacancy. If the Board fails to call such meeting or if there are no directors then in office, any shareholder may call the meeting.

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4.7 Action by the Board - Subject to any unanimous shareholder agreement, the Board shall manage, or supervise the management of, the business and affairs of the Corporation. Subject to Section 4.8, the powers of the Board may be exercised by resolution passed at a meeting at which a quorum is present or by resolution in writing signed by all the directors entitled to vote on that resolution at a meeting of the Board. Where there is a vacancy in the Board, the remaining directors may exercise all the powers of the Board so long as a quorum remains in office. Where the Corporation has only one director, that director may constitute a meeting.

4.8 Meeting by Communications Facilities - If all the directors present at or participating in the meeting consent, a meeting of the Board or of a committee of the Board may be held by means of such telephone, electronic or other communication facilities as permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously, and a director participating in such a meeting by such means is deemed to be present at the meeting. Any such consent shall be effective whether given before or after the meeting to which it relates and may be given with respect to all meetings of the Board and committees of the Board. If a majority of directors participating in a meeting held under this Section are then in Canada, the meeting shall be deemed to be held in Canada.

4.9 Place of Meetings - Meetings of the Board may be held at any place within or outside Ontario. In any financial year of the Corporation, a majority of the meetings of the Board need not be held in Canada.

4.10 Calling of Meetings - Meetings of the Board shall be held at such time and at such place as the Board, the chair of the Board, [the chief executive officer, the president, the chief financial officer, the general counsel, any two vice-presidents or any two directors] may determine.

4.11 Notice of Meeting - Notice of the time and place of each meeting of the Board shall be given in the manner provided in Section 11.1 to each director not less than 48 hours before the time when the meeting is to be held. A notice of a meeting of directors need not specify the purpose of or the business to be transacted at the meeting except where the Act requires such purpose or business to be specified. A director may in any manner waive notice of a meeting of the Board, and attendance of a director at a meeting constitutes a waiver of notice, except where the director attends a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.

4.12 First Meeting of New Board - Provided a quorum of directors is present, each newly elected Board may without notice hold its first meeting immediately following the meeting of shareholders at which such Board is elected.

4.13 Adjourned Meeting - Notice of an adjourned meeting of the Board is not required if the time and place of the adjourned meeting is announced at the original meeting.

4.14 Regular Meetings - The Board may appoint a day or days in any month or months for regular meetings of the Board at a place and hour to be named. A copy of any resolution of the Board fixing the place and time of such regular meetings shall be sent to each director forthwith after being passed, but no other notice shall be required for any such regular meeting except

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where the Act requires the purpose thereof or the business to be transacted thereat to be specified.

4.15 Meetings Without Notice - A meeting of the Board may be held at any time and place permitted by the Act or the articles or the by-laws without notice or on shorter notice than that provided for in this by-law, and proceedings at such meeting shall not be invalidated if all the directors are present in person (except where a director attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called) or if not so present, before or after the meeting, in writing waive notice of or accept short notice of such meeting.

4.16 Chair - The chair of any meeting of the Board shall be the first mentioned of such of the following officers as have been appointed and who is a director and is present at the meeting: chair of the Board, chief executive officer, or president. If no such officer is present, the directors present shall choose one of their number to be chair.

4.17 Votes to Govern - At all meetings of the Board every question shall be decided by a majority of the votes cast on the question of those directors entitled to vote. In case of an equality of votes the chair of the meeting shall not be entitled to a second or casting vote.

4.18 Conflict of Interest - A director or officer who:

(a) is a party to; or
(b) is a director or an officer of, or has a material interest in, any person who is a party to;

a material contract or transaction or proposed material contract or transaction with the Corporation shall disclose the nature and extent of such director's or officer's interest at the time and in the manner provided by the Act. Any such contract or transaction or proposed material contract or transaction shall be referred to the Board or shareholders for approval in accordance with the Act even if such contract or proposed material contract or transaction is one that in the ordinary course of the Corporation's business would not require approval by the Board or shareholders, and a director interested in a contract or transaction so referred to the Board shall not attend any part of a meeting of the Board during which the contract or transaction is discussed and shall not vote on any resolution to approve such contract or transaction except as provided by the Act.

4.19 Remuneration and Expenses - Subject to the articles and any unanimous shareholder agreement, the directors shall be paid such remuneration for their services as the Board may from time to time determine. The directors shall also be entitled to be reimbursed for travelling and other expenses properly incurred by them in attending meetings of the Board or any committee thereof. Nothing herein contained shall preclude any director from serving the Corporation in any other capacity and receiving remuneration therefor in that capacity.

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SECTION 5 DELEGATION

5.1 Committee of Directors - The Board may appoint a committee of directors and delegate to such committee any of the powers of the Board except those which, under the Act, a committee of directors has no authority to exercise.

5.2 Transaction of Business - The powers of a committee of directors may be exercised by a meeting at which a quorum is present or by resolution in writing signed by all the members of such committee who would have been entitled to vote on that resolution at a meeting of the committee. Meetings of such committee may be held at any place within or outside Ontario.

5.3 Procedure - Unless otherwise determined by the Board, each committee shall have the power to fix its quorum at not less than a majority of its members, to elect its chair and to regulate its procedure. SECTION 6 OFFICERS

6.1 Appointment - Subject to the articles and any unanimous shareholder agreement, the Board may from time to time appoint a chief executive officer, president, chief financial officer, one or more vice-presidents (to which title may be added words indicating seniority or function), a secretary, a treasurer and such other officers as the Board may determine, including one or more assistants to any of the officers so appointed. The Board may specify the duties of and, in accordance with this by-law and subject to the Act, the articles and any unanimous shareholder agreement, delegate to such officers powers to manage the business and affairs of the Corporation. Subject to Section 6.2, an officer may but need not be a director and one person may hold more than one office.

6.2 Chair of the Board - The Board may from time to time also appoint a chair of the Board who shall be a director. If appointed, the Board may assign to the chair any of the powers and duties that are by any provision of this by-law assigned to the chief executive officer; and the chair shall, subject to the Act, have such other powers and duties as the Board may specify. During the absence or disability of the chair of the Board, the chair's duties shall be performed and the chair's powers exercised by the chief executive officer.

6.3 Chief Executive Officer – If appointed, the chief executive officer, subject to the authority of the Board, shall be responsible for implementing the strategic plans and policies of the Corporation as established by the Board; and the chief executive officer shall have such other powers and duties as the Board may specify. During the absence or disability of the chair, or if no chair has been appointed, the chief executive officer shall have the powers and duties of that office.

6.4 President - If appointed, the president shall have general supervision of the business of the Corporation and shall have such other powers and duties as the Board may specify. During the absence or disability of the chief executive officer, or if no chief executive officer has been appointed, the president shall also have the powers and duties of that office.

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6.5 Chief Financial Officer – If appointed, the chief financial officer shall keep proper accounting records in compliance with the Act and shall be responsible for the deposit of money, the safekeeping of securities and the disbursement of the funds of the Corporation; the chief financial officer shall render to the Board whenever required an account of all transactions and of the financial position of the Corporation; and shall have such other powers and duties as the Board or the chief executive officer may specify.

6.6 Vice-President - If appointed, a vice-president shall have such powers and duties as the Board or the chief executive officer may specify.

6.7 Secretary - If appointed, the secretary shall attend and be the secretary of all meetings of the Board, shareholders and committees of the Board and shall enter or cause to be entered in records kept for that purpose minutes of all proceedings thereat; the secretary shall give or cause to be given, as and when instructed, all notices to shareholders, directors, officers, auditors and members of committees of the Board; the secretary shall be the custodian of the stamp or mechanical device generally used for affixing the corporate seal of the Corporation and of all books, papers, records, documents and instruments belonging to the Corporation, except when some other officer or agent has been appointed for that purpose; and the secretary shall have such other powers and duties as the Board or the chief executive officer may specify.

6.8 Treasurer - If appointed, the treasurer shall have such powers and duties as the Board or the chief financial officer may specify. During the absence or disability of the chief financial officer, or if no chief financial officer has been appointed, the treasurer shall have the powers and duties of that office.

6.9 Powers and Duties of Other Officers - The powers and duties of all other officers shall be such as the terms of their engagement call for or as the Board or the chief executive officer may specify. Any of the powers and duties of an officer to whom an assistant has been appointed may be exercised and performed by such assistant, unless the Board or the chief executive officer otherwise directs.

6.10 Variation of Powers and Duties - The Board may from time to time and subject to the Act, vary, add to or limit the powers and duties of any officer.

6.11 Term of Office - The Board, in its discretion, may remove any officer of the Corporation, without prejudice to such officer's rights under any employment contract. Otherwise each officer appointed by the Board shall hold office until such officer's successor is appointed, or until such officer's earlier resignation.

6.12 Terms of Employment and Remuneration - The Board shall settle from time to time the terms of employment and the remuneration of officers appointed by the Board.

6.13 Conflict of Interest - An officer who has a conflict of interest described in Section 4.18 shall comply with that section.

6.14 Agents and Attorneys - The Board shall have power from time to time to appoint agents or attorneys for the Corporation in or outside Canada with such powers of management or otherwise (including the power to sub-delegate) as may be thought fit.

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6.15 Fidelity Bonds - The Board may require such officers, employees and agents of the Corporation as the Board deems advisable to furnish bonds for the faithful discharge of their powers and duties, in such form and issued by such insurer as the Board may from time to time determine.

SECTION 7 PROTECTION OF DIRECTORS, OFFICERS AND OTHERS

7.1 Limitation of Liability - No director or officer shall be liable for the acts, receipts, neglects or defaults of any other director or officer or employee, or for any loss, damage or expense happening to the Corporation through the insufficiency or deficiency of title to any property acquired for or on behalf of the Corporation, or for the insufficiency or deficiency of any security in or on which any of the moneys of the Corporation shall be invested, or for any loss or damage arising from the bankruptcy, insolvency or tortious acts of any person with whom any of the moneys, securities or effects of the Corporation shall be deposited, or for any loss occasioned by any error of judgment or oversight on such individual's part, or for any other loss, damage or misfortune whatever which shall happen in the execution of the duties of such individual's office or in relation thereto; provided that nothing herein shall relieve any director or officer from the duty to act in accordance with the Act, the Regulations and the by-laws of the Corporation, or from liability for any breach thereof.

7.2 Indemnity - Subject to the Act, the Corporation shall indemnify a director or officer of the Corporation, a former director or officer of the Corporation or another individual who acts or acted at the Corporation's request as a director or officer, or an individual acting in a similar capacity, of another entity against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of that association with the Corporation or other entity, if:

(a) the individual acted honestly and in good faith with a view to the best interests of the Corporation or, as the case may be, to the best interests of the other entity for which the individual acted as a director or officer or in a similar capacity at the Corporation's request;
(b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the individual had reasonable grounds for believing that his or her conduct was lawful; and
(c) the individual was not judged by a court or other competent authority to have committed any fault or omitted to do anything that the individual ought to have done;

provided that if the conditions set out in Sections 7.2(a) and (b) are met but the condition set out in Section 7.2(c) is not met, the Corporation may indemnify the individual, but the individual shall have no right to such indemnification.

7.3 Advance of Costs - The Corporation shall advance moneys to an individual referred to in Section 7.2 for the costs, charges and expenses of a proceeding referred to in that Section,

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provided that the individual shall repay the moneys if he or she does not fulfil the conditions set out in Section 7.2(a) and Section 7.2(b)

7.4 Insurance - Subject to the Act, the Corporation may purchase and maintain such insurance for the benefit of an individual referred to in Section 7.2 against any liability incurred by the individual, in the individual's capacity as a director or officer of the Corporation, or in the individual's capacity as a director or officer, or a similar capacity, of another entity, if the individual acts or acted in that capacity at the Corporation's request, as the Board may from time to time determine.

7.5 Continuing Application - The provisions of this Section 7 as in force at the time of any alleged act(s) or omission(s) giving rise to any action or other proceeding therein referred to shall apply to such action or proceeding, regardless of:

(a) any subsequent amendment(s) (unless made with the express written consent of the individual in question); or
(b) when such act(s) or omission(s) are discovered, investigated or litigated.

SECTION 8 SHARES

8.1 Allotment - Subject to the Act, the articles and any unanimous shareholder agreement, the Board may from time to time allot or grant options to purchase the whole or any part of the authorized and unissued shares of the Corporation at such times and to such persons and for such consideration as the Board shall determine, provided that no share shall be issued until it is fully paid as provided by the Act.

8.2 Commissions - The Board may from time to time authorize the Corporation to pay a reasonable commission to any person in consideration of such person purchasing or agreeing to purchase shares of the Corporation, whether from the Corporation or from any other person, or procuring or agreeing to procure purchasers for any such shares.

8.3 Registration of Transfer - Subject to the Act, no transfer of shares shall be registered in a securities register except on presentation of the certificate representing such shares with an endorsement which complies with the Act, together with such reasonable assurance or evidence of signature, identification and authority to transfer as the Board may from time to time prescribe, on payment of all applicable taxes and any fees prescribed by the Board, on compliance with such restrictions on transfer as are authorized by the articles and on satisfaction of any lien referred to in Section 8.5.

8.4 Transfer Agents and Registrars - The Board may from time to time appoint a registrar to maintain the securities register and a transfer agent to maintain the register of transfers and may also appoint one or more branch registrars to maintain branch securities registers and one or more branch transfer agents to maintain branch registers of transfers, but one person may be appointed both registrar and transfer agent. The Board may at any time terminate any such appointment.

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8.5 Lien for Indebtedness - If the articles provide that the Corporation shall have a lien on shares registered in the name of a shareholder indebted to the Corporation, such lien may be enforced, subject to any other provision of the articles and to any unanimous shareholder agreement, by the sale of the shares thereby affected or by any other action, suit, remedy or proceeding authorized or permitted by law or by equity and, pending such enforcement, the Corporation may refuse to register a transfer of the whole or any part of such shares.

8.6 Non-recognition of Trusts - Subject to the Act, the Corporation may treat the person in whose name a share is registered in the securities register as the person exclusively entitled to vote, to receive notices, to receive any dividend or other payments in respect of the share and otherwise to exercise all the rights and powers of a holder of the security.

8.7 Security Certificates - A security issued by the Corporation may be represented by a security certificate or may be an uncertificated security. Unless otherwise provided in the articles, the Board may by resolution provide that any or all classes and series of shares or other securities of the Corporation shall be uncertificated securities, provided that such resolution shall not apply to securities represented by a certificate until such certificate is surrendered to the Corporation. Subject to the Act, security certificates shall be in such form as the Board shall from time to time approve. Any security certificate shall be signed in accordance with Section 2.2 and need not be under the corporate seal; provided that, unless the Board otherwise determines, certificates representing securities in respect of which a transfer agent and/or registrar has been appointed shall not be valid unless countersigned by or on behalf of such transfer agent and/or registrar. The signature of one of the signing officers or, in the case of security certificates which are not valid unless countersigned by or on behalf of a transfer agent and/or registrar, the signatures of both signing officers, may be printed or mechanically reproduced in facsimile on security certificates and every such facsimile signature shall for all purposes be deemed to be the signature of the officer whose signature it reproduces and shall be binding on the Corporation. A security certificate executed as aforesaid shall be valid notwithstanding that one or both of the officers whose facsimile signature appears thereon no longer holds office at the date of issue of the certificate.

8.8 Replacement of Security Certificates - The Board or any officer or agent designated by the Board may in its or such person's discretion direct the issue of a new security certificate in lieu of and on cancellation of a security certificate that has been mutilated or in substitution for a security certificate claimed to have been lost, destroyed or wrongfully taken on payment of such fee, not exceeding the amount prescribed by the Regulations, and on such terms as to indemnity, reimbursement of expenses and evidence of loss and of title as the Board may from time to time prescribe, whether generally or in any particular case.

8.9 Joint Security Holders - If two or more persons are registered as joint holders of any security, the Corporation shall not be bound to issue more than one certificate in respect thereof, and delivery of such certificate to one of such persons shall be sufficient delivery to all of them. Any one of such persons may give effectual receipts for the certificate issued in respect thereof or for any dividend, bonus, return of capital or other money payable or warrant issuable in respect of such security.

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8.10 Deceased Security Holders - In the event of the death of a holder, or of one of the joint holders, of any security, the Corporation shall not be required to make any entry in the securities register in respect thereof or to make payment of any dividends thereon except on production of all such documents as may be required by law and on compliance with the reasonable requirements of the Corporation and its transfer agents.

SECTION 9 DIVIDENDS AND RIGHTS

9.1 Dividends - Subject to the Act, the Board may from time to time declare dividends payable to the shareholders according to their respective rights and interests in the Corporation. Dividends may be paid in money or property or by issuing fully paid shares of the Corporation.

9.2 Payment of Dividends – Any dividend payable in money to shareholders shall be paid by cheque or by electronic means or by such other method as the Board may determine. The payment shall be made to or to the order of each registered holder of shares in respect of which the payment is to be made. Cheques shall be sent to the registered holder's recorded address, unless the holder otherwise directs. In the case of joint holders, the payment shall be made to the order of all of such joint holders and, if applicable, sent to them at their recorded address, unless such joint holders otherwise direct. The sending of the cheque or the sending of the payment by electronic means or the sending of the payment by a method determined by the Board in an amount equal to the dividend to be paid less any tax that the Corporation is required to withhold shall satisfy and discharge the liability for the payment, unless the payment is not made upon presentation, if applicable.

9.3 Non-Receipt of Payment - In the event of non-receipt of any payment as contemplated by Section 9.2 by the person to whom it is sent, the Corporation may issue re-payment to such person for a like amount. The Board may determine, whether generally or in any particular case, the terms on which any re-payment may be made, including terms as to indemnity, reimbursement of expenses and evidence of non-receipt and of title.

9.4 Record Date for Dividends and Rights - The Board may fix in advance a date, preceding by not more than 50 days, the date for the payment of any dividend or the date for the issue of any warrant or other evidence of the right to subscribe for securities of the Corporation, as a record date for the determination of the persons entitled to receive payment of such dividend or to exercise the right to subscribe for such securities, provided that notice of any such record date shall be given, not less than 7 days before such record date. Where no record date is so fixed, the record date for the determination of the persons entitled to receive payment of any dividend or to exercise the right to subscribe for securities of the Corporation shall be at the close of business on the day on which the resolution relating to such dividend or right to subscribe is passed by the Board.

9.5 Unclaimed Dividends - Any dividend that remains unclaimed after the expiry of the applicable limitation period shall be forfeited and shall revert to the Corporation.

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SECTION 10 MEETINGS OF SHAREHOLDERS

10.1 Annual Meetings - The annual meeting of shareholders shall be held at such time in each year and, subject to Section 10.3, at such place as the Board, may from time to time determine, for the purpose of considering the financial statements and reports required by the Act to be placed before the annual meeting, electing directors, appointing auditors and for the transaction of such other business as may properly be brought before the meeting.

10.2 Special Meetings - The Board, the chair of the Board, the chief executive officer, or the president shall have power to call a special meeting of shareholders at any time.

10.3 Place of Meetings – Subject to the articles and any unanimous shareholder agreement, meetings of shareholders shall be held at the registered office of the Corporation or, if the Board shall so determine, at some other place in Ontario or, if all the shareholders entitled to vote at the meeting so agree, at some place outside Ontario. A meeting of shareholders held under Section 10.4 is deemed to be held at the place where the registered office is located.

10.4 Participation by Electronic Means - If the Corporation chooses to make available a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during a meeting of shareholders, any shareholder entitled to attend such meeting may participate in the meeting by means of such telephonic, electronic or other communication facility. A shareholder, who through such means votes at the meeting or establishes a communications link to the meeting is deemed to be present at the meeting.

10.5 Notice of Meetings - Notice of the time and place of each meeting of shareholders shall be given in the manner provided in Section 11.1 not less than 10 nor more than 50 days before the date of the meeting, or within such other period as may be provided by the Act or prescribed by the Regulations to each director, to the auditor and to each shareholder who at the close of business on the record date for notice, is entered in the securities register as the holder of one or more shares carrying the right to vote at the meeting. Notice of a meeting of shareholders called for any purpose other than consideration of the financial statements and auditors report, election of directors and reappointment of the incumbent auditors shall state the nature of such business in sufficient detail to permit the shareholder to form a reasoned judgment thereon and shall state the text of any special resolution to be submitted to the meeting.

10.6 List of Shareholders Entitled to Notice - For every meeting of shareholders, the Corporation shall prepare within the time specified by the Act a list of shareholders entitled to receive notice of the meeting, arranged in alphabetical order and showing the number of shares held by each shareholder. If a record date for notice is fixed pursuant to Section 10.7, the shareholders listed shall be those registered at the close of business on such record date. If no record date for notice is so fixed, the shareholders listed shall be those registered (a) at the close of business on the day immediately preceding the day on which notice of the meeting is given, or (b) on the day on which the meeting is held where no such notice is given. The list shall be available for examination by any shareholder during usual business hours at the registered office

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of the Corporation or at the place where the central securities register is maintained and at the meeting for which the list was prepared.

10.7 Record Date for Notice - The Board may fix in advance a date, preceding the date of any meeting of shareholders by not less than 30 days and not more than 60 days, as a record date for the determination of the shareholders entitled to notice of the meeting, and notice of any such record date shall be given not less than 7 days before such record date by newspaper advertisement and written notice in the manner provided by the Act. If no record date for notice is so fixed, the record date for the determination of the shareholders entitled to notice of the meeting shall be (a) at the close of business on the day immediately preceding the day on which notice of the meeting is given, or (b) on the day on which the meeting is held where no such notice is given.

10.8 Meetings without Notice - A meeting of shareholders may be held at any time and place permitted by the Act without notice or on shorter notice than that provided for herein, and proceedings thereat shall not be invalidated (a) if all the shareholders entitled to vote thereat are present in person or represented by proxy (other than for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called) or if those not present in person or represented by proxy, before or after the meeting, in writing waive notice of or accept short notice of such meeting, and (b) if the auditors and the directors are present or if those not present, waive notice of or otherwise consent to such meeting being held. At such a meeting any business may be transacted which the Corporation at a meeting of shareholders may transact. If the meeting is held at a place outside Ontario, shareholders not present in person or represented by proxy, but who have waived notice of such meeting, shall also be deemed to have consented to the meeting being held at such place.

10.9 Chair, Secretary and Scrutineers - The chair of any meeting of shareholders shall be the first mentioned of such of the following officers as have been appointed and who is present at the meeting: chief executive officer, president, chair of the Board, or a vice-president who is a director. If no such officer is present within 15 minutes from the time fixed for holding the meeting, the persons present and entitled to vote shall choose one of their number to be chair. If the secretary of the Corporation is absent, the chair shall appoint some person, who need not be a shareholder, to act as secretary of the meeting. If desired, one or more scrutineers, who need not be shareholders, may be appointed by a resolution or by the chair with the consent of the meeting.

10.10 Persons Entitled to be Present - The only persons entitled to attend a meeting of shareholders shall be those entitled to vote thereat, the directors and auditor of the Corporation and others who, although not entitled to vote, are entitled or required under the Act or the articles or by-laws to be present at the meeting. Any other person may be admitted only on the invitation of the chair of the meeting or with the consent of the meeting.

10.11 Quorum - Subject to the Act, a quorum for the transaction of business at any meeting of shareholders shall be one person present in person, being a shareholder entitled to vote thereat or a duly appointed representative or proxyholder for an absent shareholder so entitled, and holding or representing in the aggregate not less than a majority of the outstanding shares of the Corporation entitled to vote at the meeting. If a quorum is present at the opening of any meeting

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of shareholders, the shareholders present in person or represented by proxy may proceed with the business of the meeting notwithstanding that a quorum is not present throughout the meeting. If a quorum is not present at the opening of any meeting of shareholders, the shareholders present in person or represented by proxy may adjourn the meeting to a fixed time and place, but may not transact any other business.

10.12 Right to Vote - Subject to the Act as to authorized representatives of any other body corporate or association, at any meeting of shareholders for which the Corporation must prepare a list referred to in Section 10.6, every person who is named in such list shall be entitled to vote the shares shown opposite such person's name.

10.13 Proxies - Every shareholder entitled to vote at a meeting of shareholders may appoint a proxyholder, or one or more alternate proxyholders, who need not be shareholders, to attend and act at the meeting in the manner and to the extent authorized and with the authority conferred by the proxy. A proxy shall be in writing executed by the shareholder or such shareholder's attorney and shall conform with the Act. Every such shareholder which is a body corporate or association may by resolution of its directors or governing body authorize an individual who need not be a shareholder to represent it at a meeting of shareholders and such individual may exercise on the shareholder's behalf all the powers it could exercise if it were an individual shareholder. The authority of such an individual shall be established by depositing with the Corporation a certified copy of such resolution, or in such other manner as may be satisfactory to the secretary of the Corporation or the chair of the meeting.

10.14 Time for Deposit of Proxies - The Board may specify in a notice calling a meeting of shareholders a time, preceding the time of such meeting by not more than 48 hours exclusive of non-business days, before which time proxies to be used at such meeting must be deposited. A proxy shall be acted on only if, prior to the time so specified, it shall have been deposited with the Corporation or an agent thereof specified in such notice or, if no such time is specified in such notice, unless it has been received by the secretary of the Corporation or by the chair of the meeting or any adjournment thereof prior to the time of voting.

10.15 Joint Shareholders - If two or more persons hold shares jointly, one of them present in person or represented by proxy at a meeting of shareholders may, in the absence of the other or others, vote the shares; but if two or more of those persons are present in person or represented by proxy and vote, they shall vote as one on the shares jointly held by them.

10.16 Votes to Govern - At any meeting of shareholders every question shall, unless otherwise required by the articles or by-laws or by law, be determined by a majority of the votes cast on the question. In case of an equality of votes either on a show of hands or on a ballot or on results of electronic voting, the chair of the meeting shall not be entitled to a second or casting vote.

10.17 Show of Hands - Subject to the Act, any question at a meeting of shareholders shall be decided by a show of hands unless a ballot thereon is required or demanded as hereinafter provided. On a show of hands every person who is present and entitled to vote shall have one vote. Whenever a vote by show of hands shall have been taken on a question, unless a ballot thereon is so required or demanded, a declaration by the chair of the meeting that the vote on the question has been carried or carried by a particular majority or not carried and an entry to that

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effect in the minutes of the meeting shall be prima facie evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against any resolution or other proceeding in respect of the question, and the result of the vote so taken shall be the decision of the shareholders on the question.

10.18 Ballots - On any question proposed for consideration at a meeting of shareholders, and whether or not a show of hands has been taken thereon, the chair may require a ballot of any person present or any shareholder or proxyholder entitled to vote on such question at the meeting may demand a ballot. A ballot so demanded shall be taken in such manner as the chair shall direct. A demand for a ballot may be withdrawn at any time prior to the taking of the ballot. If a ballot is taken each person present shall be entitled, in respect of the shares which such person is entitled to vote at the meeting on the question, to that number of votes provided by the Act or the articles, and the result of the ballot so taken shall be the decision of the shareholders on the question.

10.19 Adjournment - If a meeting of shareholders is adjourned by one or more adjournments for an aggregate of less than 30 days it is not necessary to give notice of the adjourned meeting other than by announcement at the time of an adjournment. If a meeting of shareholders is adjourned by one or more adjournments for an aggregate of 30 days or more but not more than 90 days, notice of the adjourned meeting shall be given as for an original meeting but the management of the Corporation shall not be required to send a form of proxy in the form provided by the Act to each shareholder who is entitled to receive notice of the meeting.

10.20 Resolution in Writing - A resolution in writing signed by all the shareholders entitled to vote on that resolution at a meeting of shareholders is as valid as if it had been passed at a meeting of the shareholders unless a written statement with respect to the subject matter of the resolution is submitted by a director or the auditors in accordance with the Act.

10.21 Only One Shareholder - Where the Corporation has only one shareholder or only one holder of any class or series of shares, the shareholder present in person or by proxy constitutes a meeting.

SECTION 11 NOTICES

11.1 Method of Giving Notices - Any notice (which term includes any communication or document) to be given (which term includes sent, delivered or served) pursuant to the Act, the Regulations, the articles, the by-laws or otherwise to a shareholder, director, officer or member of a committee of the Board or to the auditors shall be sufficiently given if delivered personally to the person to whom it is to be given or if delivered to such person's recorded address or if mailed to such person at such person's recorded address by prepaid ordinary or air mail or if sent to such person at such person's recorded address by facsimile transmission, with confirmation of transmission by the transmitting equipment or if provided to such person by electronic means in accordance with the Electronic Commerce Act, 2000 (Ontario). A notice so delivered shall be deemed to have been given when it is delivered personally or to the recorded address as aforesaid; a notice so mailed shall be deemed to have been received by the addressee on the fifth day after mailing; a notice so transmitted by facsimile shall be deemed to have been received at

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the time of receipt shown on a transmission report from the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the relevant facsimile number; and a notice so provided by electronic means shall be deemed to have been sent and received in the manner and at the time specified in the Electronic Commerce Act, 2000 (Ontario). The secretary may change or cause to be changed the recorded address of any shareholder, director, officer, auditor or member of a committee of the Board in accordance with any information believed by the secretary to be reliable.

11.2 Notice to Joint Shareholders - If two or more persons are registered as joint holders of any share, any notice shall be addressed to all of such joint holders but notice to one of such persons shall be sufficient notice to all of them.

11.3 Computation of Time - In computing the date when notice must be given under any provision requiring a specified number of days notice of any meeting or other event, the date of giving the notice shall be excluded and the date of the meeting or other event shall be included.

11.4 Undelivered Notices – If any notice given to a shareholder pursuant to Section 11.1 is returned on three consecutive occasions because such shareholder cannot be found, the Corporation shall not be required to give any further notices to such shareholder until such shareholder informs the Corporation in writing of such shareholder's new address.

11.5 Omissions and Errors - The accidental omission to give any notice to any shareholder, director, officer, auditor or member of a committee of the Board or the non-receipt of any notice by any such person or any error in any notice not affecting the substance thereof shall not invalidate any action taken at any meeting held pursuant to such notice or otherwise founded thereon.

11.6 Persons Entitled by Death or Operation of Law - Every person who, by operation of law, transfer, death of a shareholder or any other means whatsoever, shall become entitled to any share, shall be bound by every notice in respect of such share which shall have been duly given to the shareholder from whom such person derives title to such share prior to such person's name and address being entered on the securities register (whether such notice was given before or after the happening of the event on which such person became so entitled) and prior to such person furnishing to the Corporation the proof of authority or evidence of entitlement provided by the Act.

11.7 Waiver of Notice - Any shareholder, (or such shareholder's duly appointed proxyholder), director, officer, auditors or member of a committee of the Board may at any time waive any notice, or waive or abridge the time for any notice, required to be given to such person under the Act, the Regulations, the articles, the by-laws or otherwise and such waiver or abridgement, whether given before or after the meeting or other event of which notice is required to be given, shall cure any default in the giving or in the time of such notice, as the case may be. Any such waiver or abridgement shall be in writing or by electronic means in accordance with the Electronic Commerce Act, 2000 (Ontario) except a waiver of notice of a meeting of shareholders or of the Board or of a committee of the Board which may be given in any manner.

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SECTION 12 EFFECTIVE DATE

12.1 Effective Date - This by-law shall be effective when made by the Board.

CERTIFIED to be By-Law No. 1 of the Corporation, as enacted by the sole director of the Corporation by resolution dated the day of , 2021 and confirmed by the shareholder of the Corporation by resolution dated the day of , 2021.

Dated as of the day of , 2021.

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EXHIBIT “B”

FORM OF AMALGAMATION APPLICATION

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EXHIBIT “C”

FORM OF AMALGAMATION RESOLUTION

AMALGAMATION AGREEMENT

WHEREAS on March 3, 2021, Next Hydrogen Corporation (the “ Corporation ”) entered into an amalgamation agreement (the “ Amalgamation Agreement ”) with BioHep Technologies Inc. (“ BioHep ”) and its wholly owned-subsidiaries, 2819845 Ontario Ltd. (“ Subco ”) and 1291549 B.C. Ltd. to carry out a three-cornered amalgamation; and

WHEREAS BioHep is a reporting issuer in the provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec; and

WHEREAS pursuant to the Amalgamation Agreement, Subco and the Corporation will amalgamate under the name Next Hydrogen Corporation (“ Amalco ”) and as a result of the amalgamation each holder of common shares of the Corporation and SubCo (other than BioHep) shall receive common shares of BioHep and BioHep shall receive common shares of Amalco.

THEREFORE IT IS RESOLVED as a special resolution that:

The Amalgamation Agreement with such amendments, deletions or alterations as may be considered necessary or advisable by any director or officer of the Corporation, is hereby approved.
The amalgamation of Subco and the Corporation in accordance with the terms and conditions of the Amalgamation Agreement is approved.
Any director or officer of the Corporation be and is hereby authorized to sign and deliver Articles of Amalgamation, on behalf of the Corporation and to file them with the Director appointed under the Business Corporations Act (Ontario).
Notwithstanding that this special resolution has been duly passed by the shareholders of the Corporation, the board of directors of the Corporation may, at its discretion, and without further approval of the shareholders of the Corporation, revoke this resolution before it is acted upon and not proceed with the Amalgamation.
Any director or officer of the Corporation is hereby authorized to execute and deliver, on behalf of the Corporation, all such documents and instruments, and to do all such acts and things as such director or officer may consider to be necessary or advisable in order to carry out the terms of this resolution.

AI assistant

Next Hydrogen Solutions Inc. — Merger & Acquisition 2021

47206_rns_2021-03-05_48417b37-a257-4e8d-ae77-b3eabb9b992c.pdf

AMALGAMATION AGREEMENT

TABLE OF CONTENTS

AMALGAMATION AGREEMENT

AMONG:

AND:

AND:

AND:

(“ Next Hydrogen ”);

WHEREAS:

PART 1 INTERPRETATION

Definitions

Interpretation

Exhibits

PART 2 THE AMALGAMATION

Agreement to Amalgamate

Effect of Amalgamation

Name

Registered Office

Authorized Capital and Restrictions on Share Transfers

Fiscal Year

Business

Initial Directors of Amalco

Initial Officers of Amalco

Directors and Officers of BioHep Post-Closing

Exchange of SubCo Shares and Next Hydrogen Shares

Convertible Securities

Dissenting Shareholders

Completion of the Amalgamation and Effective Date

Acknowledgment of Escrow and Resale Restrictions

Agency Agreement

PART 3 COVENANTS

Mutual Covenants

Additional Covenants of BioHep and the BioHep Subsidiaries

Additional Covenants of Next Hydrogen

PART 4 REPRESENTATIONS AND WARRANTIES

Representations and Warranties of BioHep and BioHep Subsidiaries

Representations and Warranties of Next Hydrogen

Further Intellectual Property Representations and Warranties of Next Hydrogen

Survival of Representation and Warranties

PART 5 AGREEMENTS

Next Hydrogen Resolution and Transaction Summary

Proposed Transaction

Listing Application

Preparation of Filings

BioHep Consolidation

BioHep Arrangement

Concurrent Financing

Name Change

PART 6 INDEMNIFICATION

Indemnification by Next Hydrogen

Indemnification by BioHep

Limitation on Indemnification

Procedure for Indemnification

Sole Remedy

PART 7 CONDITIONS PRECEDENT

Mutual Conditions Precedent

Additional Conditions to Obligations of BioHep and SubCo

Additional Conditions to Obligations of Next Hydrogen

Notice and Effect of Failure to Comply with Conditions

Satisfaction of Conditions

PART 8 AMENDMENT

Amendment

PART 9 TERMINATION

Termination

PART 10 GENERAL

Notices

Binding Effect

Assignment

Entire Agreement

Public Communications

No Shop

Costs

Confidentiality

Severability

Further Assurances

Time of Essence

Applicable Law and Enforcement

Next Hydrogen Solutions Inc. Merger & Acquisition 2021