lowell_ex105





  Exhibit 10.5











 



UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS
SECURITY MUST NOT TRADE THE SECURITY BEFORE AUGUST 11,
2020.

 



THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE “ACT”), AS
AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE
SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR AN EXEMPTION THEREFROM. THE ISSUER OF
THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE OR TRANSFER,
PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.

 



INDUS HOLDINGS, INC.

 



WARRANT TO PURCHASE STOCK


 


	
No.
W-20

	
  April
10, 2020











For
value received, this Warrant is issued to
[                
], located at
[          ]
(“Holder”) and
entitles Holder to subscribe for and purchase at the Exercise Price
(as defined below) from Indus Holdings, Inc., a British Columbia
corporation (the “Company”), the
Exercise Shares (as defined below) upon the terms and subject to
the adjustments as provided herein. This Warrant is one of a series
of similar Warrants (collectively, the
“Warrants”)
issued pursuant to that certain Debenture and Warrant Purchase
Agreement, dated as of April 10, 2020 and executed by Holder and
the Purchasers identified on Schedule I attached thereto
(the “Purchase
Agreement”).

 

1. Definitions.
As used herein, the following terms shall have the following
respective meanings:

 


(a) “Change of
Control” has the meaning
given such term in Section 5 of the Debentures.

 


(b) “Conversion
Price” has the meaning
set forth in the Debentures.

 


(c) “Debentures”
means, collectively, the Senior Secured Convertible Debentures
issued pursuant to the Purchase Agreement.

 


(a) “Equivalent
Amount” means, in
relation to an amount in one currency, the amount in another
currency that could be purchased by the amount in the first
currency, determined by reference to the applicable Exchange Rate
at the time of such determination.

 


(b) “Exchange
Rate” means, on the date
of determination of any amount of Canadian Dollars to be converted
into another currency pursuant to this certificate for any reason,
or vice-versa, the spot rate of exchange for converting Canadian
Dollars into such other currency or vice-versa, as the case may be,
established by Thomson Reuters pursuant to the WM/Reuters 12 noon
ET FIX FX Benchmark at approximately 12:30 p.m. (Toronto time) on
the date of such determination (or such other date as may be
specified herein).

 


(c) “Exercise
Period” means the time
period commencing on the earlier of July 1, 2020 and a Change of
Control and ending on the earlier to occur of (i) immediately prior
to a Change of Control or (ii)
the 42 month anniversary of the Initial Closing
Date.

 


(d)  “Exercise
Price” means $0.28 USD
per share, subject to adjustment as provided in Section 3
hereof.

 



 







 





 


(e) “Exercise
Shares” means
[                 
] Warrant Shares, subject to
adjustment as provided in Section 3 of this
Warrant.

 


(f) “Holders”
means (as the context requires) more than one of the holders of the
Warrants or all of the holders of the Warrants
collectively.

 


(g) “Required
Holders” means one or
more Holders holding Warrants exercisable for a majority of the
total Exercise Shares issuable at the time.

 


(h) “Warrant
Shares” means subordinate
voting shares of the Company.

 


Any
capitalized term used but not defined herein shall have the meaning
assigned to such term in or by reference in the Purchase
Agreement.

 

2. Exercise
of Warrant.

 


2.1 Cash
Exercise. The rights
represented by this Warrant may be exercised in whole or in part at
any time during the Exercise Period, by delivery of the following
to the Company at its address set forth above (or at such other
address as the Company may designate in writing to the
Holder):

 


(a) an executed Notice of Exercise in the form
attached hereto as Exhibit
A;

 


(b) payment
equal to the Exercise Price multiplied by the number of Exercise
Shares for which the Warrant is being exercised, (i) in cash, by
wire transfer or by check to the Company or (ii) by cancellation of
indebtedness of the Company to the Holder; and

 


(c) this
Warrant.

 


Upon
the exercise of the rights represented by this Warrant, a
certificate or certificates for the Exercise Shares so purchased,
registered in the name of the Holder shall be issued and delivered
to the Holder as soon as practicable after the rights represented
by this Warrant shall have been so exercised. The person in whose
name any certificate or certificates for Exercise Shares are to be
issued upon exercise of this Warrant shall be deemed to have become
the holder of record of such shares on the date on which this
Warrant was surrendered and payment of the Exercise Price was made,
irrespective of the date of delivery of such certificate or
certificates, except that, if the date of such surrender and
payment is a date when the stock transfer books of the Company are
closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on
which the stock transfer books are open.

 


Any
certificates representing shares issued upon exercise of the
Warrants prior to the date that is four months and one day after
the date of issue of the Warrants, and any shares issued in
exchange for such shares, will bear the following
legend:

 


“UNLESS
PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY
MUST NOT TRADE THE SECURITY BEFORE AUGUST 11,
2020.”

 



 







 





 


2.2 Net
Exercise. Notwithstanding any
provisions herein to the contrary, if the fair market value of one
share of the class and series of the Company’s capital stock
to which the Exercise Shares belong (the “Stock”)
is greater than the Exercise Price (at the date of calculation as
set forth below), in lieu of exercising this Warrant by payment of
cash or forgiveness of indebtedness pursuant to Section 2.1(b)
above, the Holder may at any time on
or after the 18 month anniversary of the Initial Closing Date and
at any time in connection with a Change of Control elect to receive
shares equal to the value (as determined below) of this Warrant (or
the portion thereof being canceled) by surrender of this Warrant at
the principal office of the Company together with the properly
endorsed Notice of Exercise, in which event the Company shall issue
to the Holder a number of shares of the applicable class and series
of Stock computed using the following formula:

 


X =
Y
(A-B)


A

 



Where X
= 

the number of
shares of Stock to be issued to the Holder





 



Y
= 

the number of
shares of Stock then purchasable under the Warrant





 



A
= 

the fair market
value of one share of the Stock as determined in accordance with
Section 2.3 below
(at the date of such calculation)





 



B
= 

Exercise Price (as
adjusted to the date of such calculation)





 


2.3 Determination of Fair
Market Value. For purposes of
this Warrant, the fair market value of one share of the Stock shall
be determined by the Company’s Board of Directors in good
faith as of the date of such calculation; provided,
however,
that:

 


(a) (i) if the Stock is traded on a securities
exchange or through the Nasdaq National Market or Canadian
Securities Exchange, the fair market value per share shall be
deemed to be the average of the closing prices of the Stock on such
exchange or quotation system (or the Equivalent Amount in United
States dollars if the closing prices are quoted in Canadian
dollars) over the 
10 trading-day period
ending three trading days prior to the exercise of the Warrant;
(ii) if the Stock is actively traded over-the-counter, the fair
market value shall be deemed to be the average of the closing bid
or sale prices (whichever is applicable) over the 10 trading-day
period ending three days prior to the exercise of the Warrant; and
(iii) if there is no active public market, the value shall be the
fair market value thereof, as determined by the Company’s
Board of Directors in good faith; and

 


(b) in the event that this Warrant is exercised
pursuant to this Section 2.2
in connection with a Change of Control
of the Company, the fair market value per share of Stock shall be
the price paid for such share of Stock (in cash or in property, as
determined by the Company’s Board of Directors) in connection
with the Change of Control.

 


2.4 Conversion by the
Company. At any time (a) on or
after the 12-month anniversary of the Initial Closing Date (as
defined in the Purchase Agreement) and prior to the 18-month
anniversary of the Initial Closing Date, and provided that the
closing price for the Warrant Shares has been at least 6 times the
Exercise Price on each trading day of the immediately preceding
30-trading day period, (b) on or after the 18-month anniversary of
the Initial Closing Date and prior to the 24-month anniversary of
the Initial Closing Date, and provided that the closing price for
the Warrant Shares has been at least 4 times the Exercise Price on
each trading day of the immediately preceding 30-trading day
period, and (c) on or after the 24-month anniversary of the Initial
Closing Date, and provided that the closing price for the Warrant
Shares has been at least USD $0.90 per share (adjusted on the same
basis as provided in Section 3) on each trading day of the
immediately preceding 30-trading day period, the Company may
deliver a written notice to the Holder of this Warrant requiring
that this Warrant be exercised for Exercise Shares. Effective as of
the fifth business day following delivery of such Notice, this
Warrant shall be converted into a number of Exercise Shares
determined pursuant to the formula set forth in Section
2.2.

 

3. Adjustment
of Exercise Price. Subject to the requirements of the
Canadian Securities Exchange (or such other exchange on which the
Exercise Shares are then listed), the Exercise Price and Exercise
Shares shall be subject to adjustment from time to time as
follows:

 


3.1 If and whenever at any time prior to end of the
Exercise Period the outstanding Stock shall be subdivided,
redivided or changed into a greater or consolidated into a lesser
number of Stock or reclassified into different shares of capital
stock of the Company (a “Reclassification”),
or the Company shall issue additional Stock (or securities
convertible into additional Stock or different shares of capital
stock of the Company) to the holders of all or substantially all of
its outstanding Stock by way of a stock dividend or otherwise
(other than an issue of additional Stock to holders of Stock who
have elected to receive dividends in the form of Stock in lieu of
receiving cash dividends paid in the ordinary course) (a
“Stock
Dividend”), Holder shall
be entitled to receive and shall accept, upon the exercise of such
right and payment of the aggregate Exercise Price at any time on
the effective date of such Reclassification or Stock Dividend or
thereafter, in lieu of the number of Stock to which he was
theretofore entitled upon exercise, the aggregate number of Stock,
different shares of capital stock of the Company and/or securities
convertible into Stock or different shares of capital stock of the
Company that Holder would have held immediately following such
Reclassification or Stock Dividend had he been the registered
holder of the number of Stock to which he was theretofore entitled
upon exercise as of the applicable record date or effective date
for such action.

 



 







 





 


3.2 If and whenever at any time prior to the end of
the Exercise Period the Company shall issue rights, options or
warrants to all or substantially all the holders of its outstanding
Stock entitling them to subscribe for or purchase additional
Stock, different shares of capital
stock of the Company or securities convertible into Stock or
different shares of capital stock of the Company, and if such
issuance has or is reasonably likely to have a material adverse
effect on rights of Holder hereunder, then the Exercise Price shall
be adjusted appropriately as determined by the directors of the
Company, acting reasonably. If all such rights, options or warrants
are not exercised prior to the expiration thereof, the Conversion
Price shall be readjusted based upon the number of additional
Stock, different shares of capital stock of the Company or
securities convertible into Stock or different shares of capital
stock of the Company actually issued upon the exercise of such
rights, options or warrants, as the case may
be.

 


3.3 No
adjustments of the Exercise Price shall be made pursuant to Section
3.1 or Section 3.2 if the Holder is permitted to participate in
such Reclassification or Stock Dividend or in the issue of such
options, rights or warrants, as the case may be, as though and to
the same effect as if it had exercised this Warrant into Exercise
Shares prior to the applicable record date or effective date for
such Reclassification or Stock Dividend or the issue of such
options, rights or warrants, as the case may be.

 


3.4 The
adjustments provided for in this Section 3 are cumulative and shall
be computed to the nearest one-tenth of one cent and will be made
successively whenever an event referred to therein occurs.
Notwithstanding the foregoing, no adjustment of the Exercise Price
shall be made in any case in which the resulting increase or
decrease in the Exercise Price would be less than one percent of
the then prevailing Exercise Price. Any adjustment that would
otherwise have been required to be made, but for the minimum
percentage threshold, shall be carried forward and made at the time
of and together with the next subsequent adjustment to the Exercise
Price which, together with any and all such adjustments so carried
forward, shall result in an increase or decrease in the Exercise
Price by not less than one percent.

 

4. Fractional
Shares; Effect of Exercise. Notwithstanding anything herein contained, the
Company shall in no case be required to issue fractional Exercise
Shares upon the exercise of this Warrant. If any fractional
interest in an Exercise Share would, except for the provisions of
this 4, be deliverable upon the exercise of this Warrant, the
aggregate number of Exercise Shares to which such holder shall be
entitled shall be rounded down to the nearest whole number if the
fraction is less than 0.5 and rounded up to the nearest whole
number if the fraction is 0.5 or greater.

 

5. No
Stockholder Rights. This Warrant shall not
entitle the Holder to any right to receive dividends, voting rights
or other rights as a stockholder of the Company.

 

6. Lost,
Stolen, Mutilated or Destroyed Warrant. The Company covenants to
the Holder hereof that, upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant or any stock certificate and, in the
case of any such loss, theft or destruction, upon receipt of an
indemnity reasonably satisfactory to the Company, or in the case of
any such mutilation, upon surrender and cancellation of such
Warrant or stock certificate, the Company shall make and deliver a
new Warrant or stock certificate, of like tenor, in lieu of the
lost, stolen, destroyed or mutilated Warrant or stock
certificate.

 

7. Notices.
 Any notice
required or permitted under this Warrant shall be given in
accordance with Section 9(g) of the Purchase
Agreement.

 

8. Acceptance. Receipt
of this Warrant by the Holder shall constitute acceptance of and
agreement to all of the terms and conditions contained
herein.

 

9. Amendment
and Waiver.
Any provision of this Warrant may be amended or waived in a writing
signed by both the Company and the Required Holders and such
amendment or waiver shall be binding on all Holders.

 

10. Governing
Law; Venue.

 


10.1 This
Warrant and all actions arising out of or in connection with this
Warrant shall be governed by and construed in accordance with the
laws of the State of Delaware, without regard to its internal rules
governing the conflict of laws.

 



 







 





 


10.2 Each of the
Company and the Holder hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction
of any Delaware State court or Federal court of the United States
of America sitting in Delaware, in Wilmington, and any appellate
court from any thereof, in any action or proceeding arising out of
or relating to this Warrant or the transactions contemplated hereby
or for recognition or enforcement of any judgment relating hereto,
and each of the Company and the Holder hereby irrevocably and
unconditionally (a) agrees not to commence any such action or
proceeding except in such courts; (b) agrees that any claim in
respect of any such action or proceeding may be heard and
determined in such courts; (c) waives any objection or defense
which it may now or hereafter have based on personal jurisdiction;
(d) waives any objection which it may now or hereafter have to the
laying of venue of any such action or proceeding in any such court;
and (e) waives the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court. Each of
the Company and the Holder agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner
provided by law. Each of the Company and the Holder irrevocably
consents to service of process in the manner provided for notices
in Section 7(g)
of the Purchase
Agreement.

 


10.3 EACH
OF THE COMPANY AND THE HOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHTS
TO TRIAL BY JURY IN ANY PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE
BETWEEN THE COMPANY AND THE HOLDER (WHETHER ARISING IN CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THIS WARRANT, THE TRANSACTIONS CONTEMPLATED HEREBY OR
THE RELATIONSHIPS ESTABLISHED BETWEEN THE COMPANY, THE HOLDER, ANY
OTHER HOLDER(S) OF WARRANTS.

 


 



(Signature page follows)


 



 







 






 


In Witness Whereof, the Company has
caused this Warrant to be executed by its duly authorized officer
as of the date first above written.

 


COMPANY:

 



INDUS HOLDINGS, INC.

 



By:                                                                            






 


 


 


Accepted:


 


[If
Purchaser is an entity:


 


PURCHASER:


 



[Purchaser]


By:                                                                                 
]


[Name]



[Title]                                                                              








 


 


[If
Purchaser is an individual:


 


PURCHASER:


 


 



                                                                               
         


[Purchaser]


 


 




Signature
Page to Warrant









 










 



Exhibit a

 



NOTICE OF EXERCISE


 



TO: Indus Holdings, Inc.

 


(1)          
The
undersigned hereby elects to purchase __ shares of ______ of Indus
Holdings, Inc. (the “Company”)
pursuant to the terms of the attached Warrant, and tenders herewith
payment of the Exercise Price in full, together with all applicable
transfer taxes, if any by; Check all that apply:

 


(a)           
payment of US$_________ by wire transfer, federal reference number
_________,

 


(b)           
cancellation of indebtedness in the amount of US$_________,
represented by the note enclosed herewith; or

 


The
undersigned hereby elects to purchase ______ shares of __________of
the Company pursuant to the terms of the net exercise provisions
set forth in Section 2.2 of the attached Warrant, and shall tender
payment of all applicable transfer taxes, if any.

 


(2)           Please
issue a certificate or certificates representing said shares of
Stock in the name of the undersigned or in such other name as is
specified below:

 



_____________________________________


Holder

 


_____________________________________


Address


 


(3)           The
undersigned represents that (i) the aforesaid shares of Stock are
being acquired for the account of the undersigned for investment
and not with a view to, or for resale in connection with, the
distribution thereof and that the undersigned has no present
intention of distributing or reselling such shares; (ii) the
undersigned is aware of the Company’s business affairs and
financial condition and has acquired sufficient information about
the Company to reach an informed and knowledgeable decision
regarding the undersigned’s investment in the Company; (iii)
the undersigned is experienced in making investments of this type
and has such knowledge and background in financial and business
matters that the undersigned is capable of evaluating the merits
and risks of this investment and protecting the undersigned’s
own interests; (iv) the undersigned understands that the shares of
Stock issuable upon exercise of this Warrant have not been
registered under the Securities Act, by reason of a specific
exemption from the registration provisions of the Securities Act,
which exemption depends upon, among other things, the bona fide
nature of the investment intent as expressed herein, and, because
such securities have not been registered under the Securities Act,
they must be held indefinitely unless subsequently registered under
the Securities Act or an exemption from such registration is
available; (v) the undersigned is aware that the aforesaid shares
of Stock may not be sold pursuant to Rule 144 adopted under the
Securities Act unless certain conditions are met and until the
undersigned has held the shares for the number of years prescribed
by Rule 144, that among the conditions for use of the Rule is the
availability of current information to the public about the Company
and the Company has not made such information available and has no
present plans to do so; (vi) the undersigned is an
“accredited investor” (as defined in Rule 501
promulgated pursuant to the Securities Act); and (vii) the
undersigned agrees not to make any disposition of all or any part
of the aforesaid shares of Stock unless and until there is then in
effect a registration statement under the Securities Act covering
such proposed disposition and such disposition is made in
accordance with said registration statement, or the undersigned has
provided the Company with an opinion of counsel satisfactory to the
Company, stating that such registration is not
required.

 


	
 

	
 

	
 


	Date	
 

	
(Signature)



	
 

	
 

	
 


	
 

	
 

	
(Print name)








 


 




Exhibit
A-1