exv10w2





Exhibit
10.2



CONFORMED
COPY



SWISHER HYGIENE INC.




- and -



CLARUS SECURITIES INC.



- and -



BROADBAND CAPITAL MANAGEMENT LLC



- and -



TD SECURITIES INC.



- and -



EQUITY FINANCIAL TRUST COMPANY



- and -



CONTINENTAL STOCK TRANSFER & TRUST CO.



SUBSCRIPTION RECEIPT AGREEMENT



Providing for the Issue of

Subscription Receipts



Dated February 23, 2011



 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 

	Article 1 INTERPRETATION	 	 	2	 
	  1.1
	 	Definitions	 	 	2	 
	  1.2
	 	Headings	 	 	6	 
	  1.3
	 	References	 	 	6	 
	  1.4
	 	Certain Rules of Interpretation	 	 	7	 
	  1.5
	 	Day Not a Business Day	 	 	7	 
	  1.6
	 	Applicable Law	 	 	7	 
	  1.7
	 	Conflict	 	 	7	 
	  1.8
	 	Currency	 	 	7	 
	  1.9
	 	Severability	 	 	7	 
	  1.10
	 	English Language	 	 	7	 
	   
	 	 	 	 	 	 
	Article 2 ISSUE OF SUBSCRIPTION RECEIPTS	 	 	8	 
	  2.1
	 	Issue of Subscription Receipts	 	 	8	 
	  2.2
	 	Payment Acknowledgement	 	 	8	 
	  2.3
	 	Terms of Subscription Receipts	 	 	9	 
	  2.4
	 	Fractional Subscription Receipts	 	 	10	 
	  2.5
	 	Register for Subscription Receipts	 	 	10	 
	  2.6
	 	Registers Open for Inspection	 	 	10	 
	  2.7
	 	Receiptholder not a Shareholder	 	 	10	 
	  2.8
	 	Subscription Receipts to Rank Pari Passu	 	 	10	 
	  2.9
	 	Signing of Subscription Receipt Certificates	 	 	11	 
	  2.10
	 	Certification by the Subscription Receipt Agent	 	 	11	 
	  2.11
	 	Issue in Substitution for Subscription Receipt Certificates Lost, etc.	 	 	11	 
	  2.12
	 	Exchange of Subscription Receipt Certificates	 	 	12	 
	  2.13
	 	Transfer and Registration of Subscription Receipts	 	 	12	 
	  2.14
	 	Legends	 	 	14	 
	  2.15
	 	Proceeds to be Placed in Escrow	 	 	16	 
	  2.16
	 	Subscription Receipts and Trading	 	 	16	 
	  2.17
	 	Cancellation of Surrendered Subscription Receipt Certificates	 	 	16	 
	   
	 	 	 	 	 	 
	Article 3 ISSUANCE OF UNDERLYING COMMON SHARES	 	 	17	 
	  3.1
	 	Notice of Acquisition	 	 	17	 
	  3.2
	 	Release of Escrowed Funds	 	 	17	 
	  3.3
	 	Issue of Underlying Common Shares	 	 	18	 
	  3.4
	 	Fractions	 	 	18	 
	  3.5
	 	Payment on Termination	 	 	18	 
	  3.6
	 	Additional Payments by the Company	 	 	19	 
	   
	 	 	 	 	 	 
	Article 4 RIGHTS OF THE COMPANY AND COVENANTS	 	 	19	 
	  4.1
	 	Optional Purchases by the Company	 	 	19	 
	  4.2
	 	General Covenants	 	 	20	 
	  4.3
	 	Remuneration, Expenses and Indemnification	 	 	20	 
	  4.4
	 	Performance of Covenants	 	 	21	 
	  4.5
	 	Accounting	 	 	21	 
	  4.6
	 	Regulatory Matters	 	 	22	 






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	  4.7
	 	Payments by the Subscription Receipt Agent and the U.S. Escrow Agent	 	 	22	 
	   
	 	 	 	 	 	 
	Article 5 ADJUSTMENTS	 	 	23	 
	  5.1
	 	Definitions	 	 	23	 
	  5.2
	 	Adjustment	 	 	23	 
	  5.3
	 	Determination by the Company’s Auditors	 	 	25	 
	  5.4
	 	Certificate of Adjustment	 	 	25	 
	  5.5
	 	Notice of Special Matters	 	 	25	 
	  5.6
	 	No Action after Notice	 	 	25	 
	  5.7
	 	Proceedings Prior to any Action Requiring Adjustment	 	 	25	 
	  5.8
	 	Protection of Subscription Receipt Agent	 	 	26	 
	   
	 	 	 	 	 	 
	Article 6 INVESTMENT OF ESCROWED FUNDS	 	 	26	 
	  6.1
	 	Investment of Escrowed Funds	 	 	26	 
	  6.2
	 	Segregation of Proceeds	 	 	27	 
	  6.3
	 	Third Party Interest	 	 	27	 
	   
	 	 	 	 	 	 
	Article 7 ENFORCEMENT	 	 	27	 
	  7.1
	 	Suits by Receiptholders	 	 	27	 
	  7.2
	 	Immunity of Shareholders, etc.	 	 	28	 
	  7.3
	 	Limitation of Liability	 	 	28	 
	   
	 	 	 	 	 	 
	Article 8 MEETINGS OF RECEIPTHOLDERS	 	 	28	 
	  8.1
	 	Right to Convene Meetings	 	 	28	 
	  8.2
	 	Notice	 	 	28	 
	  8.3
	 	Chairperson	 	 	29	 
	  8.4
	 	Quorum	 	 	29	 
	  8.5
	 	Power to Adjourn	 	 	29	 
	  8.6
	 	Show of Hands	 	 	29	 
	  8.7
	 	Poll and Voting	 	 	29	 
	  8.8
	 	Regulations	 	 	30	 
	  8.9
	 	Company, Subscription Receipt Agent and U.S. Escrow Agent may be Represented	 	 	31	 
	  8.10
	 	Powers Exercisable by Special Resolution	 	 	31	 
	  8.11
	 	Meaning of Special Resolution	 	 	32	 
	  8.12
	 	Powers Cumulative	 	 	33	 
	  8.13
	 	Minutes	 	 	33	 
	  8.14
	 	Instruments in Writing	 	 	33	 
	  8.15
	 	Binding Effect of Resolutions	 	 	33	 
	   
	 	 	 	 	 	 
	Article 9 SUPPLEMENTAL AGREEMENTS	 	 	34	 
	  9.1
	 	Provision for Supplemental Agreements for Certain Purposes	 	 	34	 
	   
	 	 	 	 	 	 
	Article 10 CONCERNING THE SUBSCRIPTION RECEIPT AGENT AND THE U.S. ESCROW AGENT	 	 	35	 
	  10.1
	 	Rights and Duties	 	 	35	 
	  10.2
	 	Documents, etc. Held	 	 	36	 
	  10.3
	 	Actions to Protect Interest	 	 	36	 
	  10.4
	 	Not Required to Give Security	 	 	36	 






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	  10.5
	 	Protection	 	 	37	 
	  10.6
	 	Replacement; Successor by Acquisition	 	 	38	 
	  10.7
	 	Conflict of Interest	 	 	39	 
	  10.8
	 	Acceptance of Appointment	 	 	39	 
	  10.9
	 	Not to be Appointed Receiver	 	 	40	 
	  10.10
	 	Anti-Money Laundering and Privacy	 	 	40	 
	   
	 	 	 	 	 	 
	Article 11 GENERAL	 	 	41	 
	  11.1
	 	Notice	 	 	41	 
	  11.2
	 	Notice to Receiptholders	 	 	42	 
	  11.3
	 	Ownership of Subscription Receipts	 	 	43	 
	  11.4
	 	Proof of Execution of Instruments	 	 	43	 
	  11.5
	 	Satisfaction and Discharge of Agreement	 	 	44	 
	  11.6
	 	Provisions of Agreement and Subscription Receipts for the Sole Benefit of Parties and Receiptholders	 	 	44	 
	  11.7
	 	Effect of Execution	 	 	44	 
	  11.8
	 	Time of Essence	 	 	44	 
	  11.9
	 	Counterparts	 	 	44	 







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SUBSCRIPTION RECEIPT AGREEMENT



THIS SUBSCRIPTION RECEIPT AGREEMENT made as of the 23rd day of February, 2011.




AMONG:





SWISHER HYGIENE INC., a company existing under the laws of the State of Delaware




(the “Company”)



AND:





CLARUS SECURITIES INC., a company existing under the laws of the Province of Ontario




(“Clarus”)



AND:





BROADBAND CAPITAL MANAGEMENT LLC, a limited liability company existing under the
laws of the State of New York




(“Broadband”)



AND:





TD SECURITIES INC., a company existing under the laws of the Province of Ontario




(“TD Securities”)



AND:





EQUITY FINANCIAL TRUST COMPANY, a trust company existing under the laws of Canada
(hereinafter referred to as the “Subscription Receipt Agent”)



AND:





CONTINENTAL STOCK TRANSFER & TRUST CO., a trust company existing under the laws of
the State of New York (hereinafter referred to as the “U.S. Escrow Agent”)



WHEREAS the Company is proposing to issue and sell Subscription Receipts representing the right to
receive, among other things, Underlying Common Shares;



AND WHEREAS the Company has entered into the Acquisition Agreement;







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AND WHEREAS pending release in accordance with the terms of this Agreement, the Proceeds are to be
delivered, held and invested by the Escrow Agents in the manner set forth herein;



AND WHEREAS the Company and Clarus, Broadband and TD Securities (collectively, the “Agents”), have
agreed that on the Acquisition Closing Date (provided that it occurs prior to the Termination
Time), each holder of Subscription Receipts shall automatically receive, without the payment of any
additional consideration and without any further action, (a) one Underlying Common Share (subject
to adjustment in certain circumstances as herein provided) for each Subscription Receipt held by
the Receiptholder and (b) on the Special Payment Date, the Special Payment, if any, less applicable
withholding taxes, if any;



AND WHEREAS if Termination occurs, each Subscription Receipt shall be automatically terminated and
cancelled and each Receiptholder of record as of the Termination Date shall be entitled to receive
at the Termination Payment Date from the Subscription Receipt Agent or the U.S. Escrow Agent, as
applicable, without any further action, the Subscription Receipt Price in respect of such
Receiptholder’s Subscription Receipts, together with such Receiptholder’s pro rata share of
Canadian Earned Interest or U.S. Earned Interest, as applicable, less applicable withholding taxes,
if any;



AND WHEREAS all things necessary have been done and performed to make the Subscription Receipts,
when certified by the Subscription Receipt Agent and issued as provided in this Agreement, legal,
valid and binding obligations of the Company with the benefits and subject to the terms of this
Agreement;



AND WHEREAS the foregoing recitals are by the Company, and not by the Subscription Receipt Agent or
the U.S. Escrow Agent.



NOW THEREFORE THIS AGREEMENT WITNESSES that for good and valuable consideration mutually given and
received, the receipt and sufficiency of which is hereby acknowledged, it is hereby agreed and
declared as follows:




ARTICLE 1

INTERPRETATION





	1.1	 	Definitions




In this Agreement and the recitals, unless there is something in the subject matter or context
inconsistent therewith or unless otherwise expressly provided, the following terms shall have the
respective meanings set out below and grammatical variations of such terms shall have corresponding
meanings:





	 	(a)	 	“1933 Act” means the United States Securities Act of 1933, as amended;
	 
	 	(b)	 	“Acquisition” means the acquisition of Choice Environmental Services, Inc. with
and into a subsidiary of the Company pursuant to the Acquisition Agreement and
announced by the Company on February 14, 2011;




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	 	(c)	 	“Acquisition Agreement” means the agreement and plan of merger dated as of
February 13, 2011 between the Company, a subsidiary of the Company and Choice
Environmental Services, Inc.;
	 
	 	(d)	 	“Acquisition Closing Date” means the date on which the proposed Acquisition is
completed;
	 
	 	(e)	 	“Acquisition Closing Time” means the time on the Acquisition Closing Date at
which the Acquisition is completed;
	 
	 	(f)	 	“Acquisition Notice” means a notice in substantially the form set forth in
Schedule B hereto, executed by the Company and Clarus, on behalf of the Agents;
	 
	 	(g)	 	“Affiliate” has the meaning set out in National Instrument 45-106 — Prospectus
and Registration Exemptions;
	 
	 	(h)	 	“Agency Agreement” means the agency agreement dated February 23, 2011 among the
Company and the Agents in respect of the Private Placement;
	 
	 	(i)	 	“Agents” has the meaning attributed thereto in the recitals to this Agreement;
	 
	 	(j)	 	“Agreement” means this agreement, as amended, supplemented or otherwise
modified from time to time in accordance with the provisions hereof;
	 
	 	(k)	 	“Applicable Securities Laws” means the Canadian Securities Laws and the U.S.
Securities Laws;
	 
	 	(l)	 	“Broadband” has the meaning attributed thereto in the preamble to this
Agreement;
	 
	 	(m)	 	“Business Day” means a day other than a Saturday, Sunday or any other day on
which the principal chartered banks located in Toronto, Ontario or Charlotte, North
Carolina are not open for business;
	 
	 	(n)	 	“Canadian Earned Interest” means the interest or other income actually earned
and paid on the investment of the Canadian Proceeds from the date hereof to, but not
including, the earlier to occur of (i) the Acquisition Closing Date and (ii) the
Termination Date;
	 
	 	(o)	 	“Canadian Escrowed Funds” means an amount equal to the sum of (i) the Canadian
Proceeds and (ii) any investments acquired from time to time with such funds, including
the Canadian Earned Interest;
	 
	 	(p)	 	“Canadian Proceeds” means the aggregate Subscription Receipt Price for the
offering of Subscription Receipts from Canadian and non-U.S. resident Receiptholders;




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	 	(q)	 	“Canadian Securities Laws” means the securities laws, regulations, rules,
rulings and orders in each of the provinces of Canada, and the notices, policies and
written interpretations issued by the securities regulatory authorities in each of the
provinces of Canada;
	 
	 	(r)	 	“Clarus” has the meaning attributed thereto in the preamble to this Agreement;
	 
	 	(s)	 	“Closing Date” means February 23, 2011, or such other date as may be agreed
upon by the Company and the Agents as the closing date of the Private Placement;
	 
	 	(t)	 	“Common Shares” means the shares of common stock of the Company, U.S. $0.001
par value per share and evidencing an equal undivided beneficial interest in the
Company;
	 
	 	(u)	 	“Company” has the meaning attributed thereto in the preamble to this Agreement;
	 
	 	(v)	 	“Designated Office” means the principal stock transfer office of the
Subscription Receipt Agent from time to time in Toronto, Ontario;
	 
	 	(w)	 	“Escrowed Agents’ Fee” means the amount of $0.2375 per Subscription Receipt,
representing the total fee payable to the Agents pursuant to the Agency Agreement;
	 
	 	(x)	 	“NASDAQ” means the NASDAQ Global Market;
	 
	 	(y)	 	“Person” means and includes individuals, corporations, limited partnerships,
general partnerships, joint stock companies, limited liability companies, joint
ventures, associations, trusts, banks, trust companies, pension funds, business trusts
or other organizations, whether or not legal entities and governments, governmental
agencies and political subdivisions thereof;
	 
	 	(z)	 	“Private Placement” means the private placement of Subscription Receipts
contemplated by the Agency Agreement;
	 
	 	(aa)	 	“Proceeds” means the Canadian Proceeds and the U.S. Proceeds;
	 
	 	(bb)	 	“Receiptholders” or “holders” means the persons who are registered owners of
Subscription Receipts;
	 
	 	(cc)	 	“Receiptholders’ Request” means an instrument signed in one or more
counterparts by Receiptholders representing in the aggregate not less than 25% of the
aggregate number of Subscription Receipts then outstanding, requesting the Subscription
Receipt Agent to take some action or proceeding specified therein;
	 
	 	(dd)	 	“Shareholders” means the holders from time to time of Common Shares;




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	 	(ee)	 	“Special Payment” means an amount per Subscription Receipt equal to the amount
per Common Share of any cash dividends for which record dates have occurred during the
period from and including the date hereof to the Acquisition Closing Date, if any;
	 
	 	(ff)	 	“Special Payment Date” means the later of (i) the second Business Day following
the Acquisition Closing Date and (ii) the date of payment of the relevant cash dividend
on the Common Shares as determined by the board of directors of the Company;
	 
	 	(gg)	 	“Subscription Receipt Agent” has the meaning attributed thereto in the preamble
to this Agreement;
	 
	 	(hh)	 	“Subscription Receipt Certificate” means certificates evidencing Subscription
Receipts substantially in the form attached as Schedule A hereto with such
appropriate insertions, deletions, substitutions and variations as may be required or
permitted by the terms of this Agreement or as may be required to comply with any law
or the rules of any securities exchange or as may be consistent with the terms of this
Agreement and as the Company may deem necessary or desirable;
	 
	 	(ii)	 	“Subscription Receipt Price” means $4.75 per Subscription Receipt for all
Subscription Receipts issued under the Private Placement;
	 
	 	(jj)	 	“Subscription Receipts” means the subscription receipts of the Company issued
and certified hereunder and from time to time outstanding, each Subscription Receipt
evidencing the rights provided for herein;
	 
	 	(kk)	 	“TD Securities” has the meaning attributed thereto in the preamble to this
Agreement;
	 
	 	(ll)	 	“Termination” means if (i) the Company announces to the public that it no
longer intends to complete the Acquisition prior to the Termination Time, (ii) the
Acquisition Closing Date does not occur on or before the Termination Time or (iii) the
Acquisition Agreement or any amendment has been terminated at any time prior to the
Termination Time for any reason;
	 
	 	(mm)	 	“Termination Date” means the date on which any event of Termination occurs;
	 
	 	(nn)	 	“Termination Payment Date” means the second Business Day following the
Termination Date;
	 
	 	(oo)	 	“Termination Time” means 11:59 p.m. (Toronto time) on March 31, 2011;
	 
	 	(pp)	 	“TSX” means the Toronto Stock Exchange;
	 
	 	(qq)	 	“Underlying Common Shares” means the Common Shares issuable to holders of
Subscription Receipts without payment of additional consideration on the Acquisition
Closing Date (provided that it occurs prior to the Termination Time);





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	 	(rr)	 	“United States” means the United States of America, its territories and
possessions, any State of the United States of America and the District of Columbia;
	 
	 	(ss)	 	“U.S. Earned Interest” means the interest or other income actually earned and
paid on the investment of the U.S. Proceeds from the date hereof to, but not including,
the earlier to occur of (i) the Acquisition Closing Date and (ii) the Termination Date;
	 
	 	(tt)	 	“U.S. Escrow Agent” has the meaning attributed thereto in the preamble to this
Agreement;
	 
	 	(uu)	 	“U.S. Escrowed Funds” means an amount equal to the sum of (i) the U.S. Proceeds
and (ii) any investments acquired from time to time with such funds, including the U.S.
Earned Interest;
	 
	 	(vv)	 	“U.S. Proceeds” means the aggregate Subscription Receipt Price for the offering
of Subscription Receipts from U.S. resident Receiptholders;
	 
	 	(ww)	 	“U.S. Securities Laws” means all applicable securities legislation in the
United States, including without limitation, the 1933 Act, the United States Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder,
and any applicable state securities laws; and
	 
	 	(xx)	 	“written request of the Company”, “written consent of the Company”, “written
direction of the Company” and “certificate of the Company” means, respectively, a
written request, consent, direction or certificate signed in the name of the Company by
any one or more of the officers or directors of the Company and may consist of one or
more instruments so executed and any other documents referred to herein which is
required or contemplated to be provided or given by the Company.






	1.2	 	Headings




The headings, the table of contents and the division of this Agreement into Articles and Sections
are for convenience of reference only and shall not affect the interpretation of this Agreement.





	1.3	 	References




Unless otherwise specified in this Agreement:





	 	(a)	 	references to Articles, Sections and Schedules are to Articles Sections, and
Schedules in this Agreement;
	 
	 	(b)	 	“hereto”, “herein”, “hereby”, “hereunder”, “hereof” and similar expressions,
without reference to a particular provision, refer to this Agreement; and




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	 	(c)	 	where the word “including” or “includes” is used in this Agreement, it means
“including (or includes) without limitation”.






	1.4	 	Certain Rules of Interpretation




Unless otherwise specified in this Agreement:





	 	(a)	 	the singular includes the plural and vice versa; and
	 
	 	(b)	 	references to any gender shall include references to all genders.






	1.5	 	Day Not a Business Day




In the event that any day on or before which any action is required to be taken hereunder is not a
Business Day, then such action shall be required to be taken at or before the requisite time on the
next succeeding day that is a Business Day.





	1.6	 	Applicable Law




This Agreement and the Subscription Receipts shall be governed by and construed in accordance with
the laws of the Province of Ontario and the laws of Canada applicable therein.





	1.7	 	Conflict




In the event of a conflict or inconsistency between a provision in the body of this Agreement and
in any Subscription Receipt Certificate issued hereunder, the provision in the body of this
Agreement shall prevail to the extent of the inconsistency.





	1.8	 	Currency




All dollar amounts expressed in this Agreement and in the Subscription Receipts are in lawful money
of Canada and all payments required to be made hereunder and thereunder shall be made in Canadian
dollars, except for as specifically set out herein.





	1.9	 	Severability




Each of the provisions in this Agreement is distinct and severable and a declaration of invalidity
or unenforceability of any such provision or part thereof by a court of competent jurisdiction
shall not affect the validity or enforceability of any of the other provisions hereof.





	1.10	 	English Language




Each of the parties hereto hereby acknowledges that it has consented to and requested that this
Agreement and all documents relating hereto, including, without limiting the generality of the
foregoing, the form of Subscription Receipt Certificate attached hereto as Schedule A, be
drawn up in the English language only. Les parties aux présentes reconnaissent avoir accepté et
exigé que la présente convention et tous les documents s’y rapportant, y compris, sans restreindre
la portée générale de ce qui précède, le certificat représentant les reçus de souscription qui
figurent à l’annexe A, soient rédigés en langue anglaise seulement.







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ARTICLE 2

ISSUE OF SUBSCRIPTION RECEIPTS





	2.1	 	Issue of Subscription Receipts




An aggregate of up to 12,262,500 Subscription Receipts providing for the right, in certain
circumstances, as provided herein, to acquire an aggregate of up to 12,262,500 Underlying Common
Shares (subject to adjustment in certain circumstances as herein provided) are hereby created and
authorized to be issued by the Company for a price per Subscription Receipt equal to the
Subscription Receipt Price, and Subscription Receipt Certificates shall be executed by or on behalf
of the Company, certified by or on behalf of the Subscription Receipt Agent and delivered in
accordance with this Agreement.





	2.2	 	Payment Acknowledgement






	 	(a)	 	The Subscription Receipt Agent hereby:






	 	(i)	 	acknowledges the receipt of Canadian Proceeds in the amount of
$51,596,875 from Clarus;
	 
	 	(ii)	 	confirms that the Canadian Proceeds referred to in Section
2.2(a)(i) shall be immediately deposited by the Subscription Receipt Agent in
one or more interest-bearing trust accounts in accordance with Section 6.1 and,
pending the Acquisition Closing Date, will be invested in accordance with
Section 6.1; and
	 
	 	(iii)	 	confirms that Subscription Receipt Certificates have been
issued, in accordance with written directions of the Company, representing the
Subscription Receipts created and issued pursuant to Section 2.1.






	 	(b)	 	The U.S. Escrow Agent hereby:






	 	(i)	 	acknowledges the receipt of U.S. Proceeds in the amount of
$6,650,000; and
	 
	 	(ii)	 	confirms that the U.S. Proceeds referred to in Section
2.2(b)(i) shall be immediately deposited by the U.S. Escrow Agent in one or
more interest-bearing trust accounts in accordance with Section 6.1 and,
pending the Acquisition Closing Date, will be invested in accordance with
Section 6.1.






	 	(c)	 	The Company hereby:






	 	(i)	 	acknowledges that the amount received by the Subscription
Receipt Agent pursuant to Section 2.2(a)(i) and the amount received by the U.S.
Escrow Agent pursuant to Section 2.2(b)(i) represent payment in full by the
Agents of the Subscription Receipt Price for an aggregate of 12,262,500
Subscription Receipts;




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	 	(ii)	 	irrevocably directs the Subscription Receipt Agent to retain
the Canadian Proceeds and the U.S. Escrow Agent to retain the U.S. Proceeds,
each in accordance with the terms of this Agreement pending payment of such
amounts in accordance with the terms of this Agreement; and
	 
	 	(iii)	 	irrevocably directs the Subscription Receipt Agent,
concurrently with the execution and delivery of this Agreement, to certify,
countersign and deliver Subscription Receipt Certificates representing an
aggregate of 12,262,500 Subscription Receipts, in accordance with written
directions from the Company.






	 	(d)	 	The Agents hereby:






	 	(i)	 	acknowledge receipt of the Subscription Receipt Certificates
representing 12,262,500 Subscription Receipts;
	 
	 	(ii)	 	irrevocably direct the Subscription Receipt Agent to retain the
total amount received by the Subscription Receipt Agent in respect of
10,862,500 Subscription Receipts in accordance with the terms of this Agreement
pending payment of such amount in accordance with the terms of this Agreement;
and
	 
	 	(iii)	 	irrevocably direct the U.S. Escrow Agent to retain the total
amount received by the U.S. Escrow Agent in respect of 1,400,000 Subscription
Receipts in accordance with the terms of this Agreement pending payment of such
amount in accordance with the terms of this Agreement.






	2.3	 	Terms of Subscription Receipts




Each Subscription Receipt shall evidence the right of the holder of record as of the Acquisition
Closing Date or the Termination Date, as applicable, to receive, without payment of additional
consideration and without any further action:





	 	(a)	 	if the Acquisition Closing Time occurs on or before the Termination Time: (i)
at the Acquisition Closing Time, one Underlying Common Share (subject to adjustments in
certain circumstances as herein provided) from the Company, and (ii) on the Special
Payment Date, the Special Payment, if any, less applicable withholding taxes, if any;
and
	 
	 	(b)	 	if Termination occurs, on the Termination Payment Date, an amount equal to the
sum of the Subscription Receipt Price and a pro rata share of the Canadian Earned
Interest in the case of Canadian and non-U.S. resident Receiptholders or the U.S.
Earned Interest in the case of U.S. resident Receiptholders less applicable withholding
taxes, if any,




all in the manner and on the terms and conditions set forth in this Agreement. References in this
Agreement to the issuance of Underlying Common Shares “in exchange” for Subscription Receipts are
intended only to reflect the issuance of such Underlying Common Shares in






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accordance with the rights of Receiptholders to receive such Underlying Common Shares hereunder.





	2.4	 	Fractional Subscription Receipts




Notwithstanding anything herein contained, the Company shall not be required to issue fractions of
Subscription Receipts. In lieu of fractional Subscription Receipts, the total number of
Subscription Receipts to be issued to a holder shall be rounded down to the nearest whole number of
Subscription Receipts, with no cash payment being made for the fractional Subscription Receipt.





	2.5	 	Register for Subscription Receipts




The Company hereby appoints the Subscription Receipt Agent as registrar of the Subscription
Receipts, and the Company shall cause to be kept by the Subscription Receipt Agent at the
Designated Office, a securities register in which shall be entered the names and addresses of
holders of Subscription Receipts and the other particulars, prescribed by law, of the Subscription
Receipts held by them. The Company shall also cause to be kept by the Subscription Receipt Agent at
the Designated Office, the register of transfers, and may also cause to be kept by the Subscription
Receipt Agent, branch registers of transfers in which shall be recorded the particulars of the
transfers of Subscription Receipts, registered in that branch register of transfers.





	2.6	 	Registers Open for Inspection




The registers hereinbefore referred to shall be open at all reasonable times during regular
business hours of the Subscription Receipt Agent on any Business Day for inspection by the Company,
the Agents or any Receiptholder. The Subscription Receipt Agent shall, from time to time when
requested to do so by the Company, furnish the Company with a list of the names and addresses of
Receiptholders entered in the registers kept by the Subscription Receipt Agent and showing the
number of Subscription Receipts held by each such holder.





	2.7	 	Receiptholder not a Shareholder




Nothing in this Agreement or in the holding of a Subscription Receipt, other than the Special
Payment and other than as set forth in Section 5.2, shall at any time confer or be construed as
conferring upon a Receiptholder any right or interest whatsoever as a Shareholder, including, but
not limited to, the right to vote at, to receive notice of, or to attend meetings of Shareholders,
or the right to receive dividends, distributions or any continuous disclosure materials of the
Company. Receiptholders are entitled to exercise only those rights expressly provided for in the
Subscription Receipt Certificates and this Agreement on the terms and conditions set forth herein.





	2.8	 	Subscription Receipts to Rank Pari Passu




All Subscription Receipts shall rank pari passu amongst themselves whatever may be the actual
date(s) of issue of same.







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	2.9	 	Signing of Subscription Receipt Certificates




The Subscription Receipt Certificates shall be signed by any director or officer of the Company on
behalf of the Company. The signature of such director or officer of the Company may be
mechanically reproduced in facsimile and Subscription Receipt Certificates bearing such facsimile
signature shall, subject to Section 2.10, be binding upon the Company as if they had been manually
signed by such director or officer of the Company. Notwithstanding that the Person whose manual or
facsimile signature appears on any Subscription Receipt Certificate, as such director or officer
may no longer hold such position at the date of such Subscription Receipt Certificate or at the
date of certification or delivery thereof, any Subscription Receipt Certificate signed as aforesaid
shall, subject to Section 2.10, be valid and binding upon the Company and the Receiptholder thereof
shall be entitled to the benefits of this Agreement.





	2.10	 	Certification by the Subscription Receipt Agent






	 	(a)	 	No Subscription Receipt Certificate shall be issued or, if issued, shall be
valid for any purpose or entitle the holder to the benefits hereof until it has been
certified by manual or facsimile signature by or on behalf of the Subscription Receipt
Agent, and such certification by the Subscription Receipt Agent upon any Subscription
Receipt Certificate shall be conclusive evidence as against the Company that the
Subscription Receipt Certificate so certified has been duly issued hereunder and that
the holder is entitled to the benefits hereof.
	 
	 	(b)	 	The certification of the Subscription Receipt Agent on Subscription Receipt
Certificates issued hereunder shall not be construed as a representation or warranty by
the Subscription Receipt Agent as to the validity of this Agreement or the Subscription
Receipt Certificates (except the due certification thereof) and the Subscription
Receipt Agent shall in no respect be liable or answerable for the use made of the
Subscription Receipt Certificates or any of them or of the consideration therefor
except as otherwise specified herein. The certificate by or on behalf of the
Subscription Receipt Agent on Subscription Receipt Certificates shall constitute a
representation and warranty by the Subscription Receipt Agent that the said
Subscription Receipt Certificates have been duly certified by or on behalf of the
Subscription Receipt Agent pursuant to the provisions of this Agreement.






	2.11	 	Issue in Substitution for Subscription Receipt Certificates Lost, etc.






	 	(a)	 	In case any of the Subscription Receipt Certificates shall become mutilated or
be lost, destroyed or stolen, the Company, subject to applicable law (including
Applicable Securities Laws) and compliance with Section 2.11(b), shall issue and
thereupon the Subscription Receipt Agent shall certify and deliver, a new Subscription
Receipt Certificate of like tenor as the one mutilated, lost, destroyed or stolen in
exchange for and in place of and upon cancellation of such mutilated Subscription
Receipt Certificate, or in lieu of and in substitution for such lost, destroyed or
stolen Subscription Receipt Certificate, and the substituted Subscription Receipt
Certificate shall be in a form approved by the Subscription




-11-









 






	 	 	 	Receipt Agent and shall be entitled to the benefits hereof and shall rank equally in
accordance with its terms with all other Subscription Receipt Certificates issued or
to be issued hereunder.
	 
	 	(b)	 	The applicant for the issue of a new Subscription Receipt Certificate pursuant
to this Section 2.11 shall bear the cost of the issue thereof and in case of loss,
destruction or theft shall, as a condition precedent to the issue thereof, furnish to
the Company and to the Subscription Receipt Agent such evidence of ownership and of the
loss, destruction or theft of the Subscription Receipt Certificate so lost, destroyed
or stolen as shall be satisfactory to the Company and to the Subscription Receipt Agent
each in their sole discretion, and such applicant may also be required to furnish an
indemnity or surety bond in an amount and form satisfactory to the Company and the
Subscription Receipt Agent, each in their sole discretion, and shall pay the reasonable
charges of the Company and the Subscription Receipt Agent in connection therewith.






	2.12	 	Exchange of Subscription Receipt Certificates






	 	(a)	 	Subscription Receipt Certificates may, upon compliance with the reasonable
requirements of the Subscription Receipt Agent, be exchanged for another Subscription
Receipt Certificate(s) entitling the holder thereof to, in the aggregate, the same
number of Subscription Receipts as represented by the Subscription Receipt Certificates
so exchanged.
	 
	 	(b)	 	Subscription Receipt Certificates may be surrendered for exchange only at the
Designated Office of the Subscription Receipt Agent during regular business hours of
the Subscription Receipt Agent.
	 
	 	(c)	 	Except as otherwise herein provided, the Subscription Receipt Agent may charge
to the holder requesting an exchange a reasonable sum for each new Subscription Receipt
Certificate issued in exchange for the existing Subscription Receipt Certificate(s).
Payment of such charges and reimbursement of the Subscription Receipt Agent or the
Company for any and all stamp taxes or governmental or other charges required to be
paid shall be made by such holder as a condition precedent to such exchange.






	2.13	 	Transfer and Registration of Subscription Receipts






	 	(a)	 	The Subscription Receipts may only be transferred on the register kept at the
Designated Office of the Subscription Receipt Agent by the holder or its legal
representatives or its attorney duly appointed by an instrument in writing. Upon
surrender for registration of transfer of Subscription Receipts at the Designated
Office of the Subscription Receipt Agent, the Company shall issue and thereupon the
Subscription Receipt Agent shall certify and deliver a new Subscription Receipt
Certificate of like tenor in the name of the designated transferee. If less than all
the Subscription Receipts evidenced by the Subscription Receipt Certificate(s) so
surrendered are transferred, the transferor shall be entitled to




-12-









 






	 	 	 	receive, in the same manner, a new Subscription Receipt Certificate registered in
its name evidencing the Subscription Receipts not transferred. However,
notwithstanding the foregoing, Subscription Receipts shall only be transferred upon:






	 	(i)	 	payment to the Subscription Receipt Agent of a reasonable sum
for each new Subscription Receipt Certificate issued upon such transfer, and
reimbursement of the Subscription Receipt Agent or the Company for any and all
stamp taxes or governmental or other charges required to be paid in respect of
such transfer;
	 
	 	(ii)	 	compliance with the legends set out in Section 2.14, and with
the requirements set out in Section 2.14 for the removal of such legends, as
the case may be; and
	 
	 	(iii)	 	such reasonable requirements as the Subscription Receipt Agent
may prescribe and as may be required by the terms of this Agreement,
	 
	 	and all such transfers shall be duly noted in such register by the Subscription
Receipt Agent.






	 	(b)	 	The Company and the Subscription Receipt Agent will deem and treat the
registered owner of any Subscription Receipt as the beneficial owner thereof for all
purposes and neither the Company nor the Subscription Receipt Agent shall be affected
by any notice to the contrary.
	 
	 	(c)	 	The transfer register in respect of Subscription Receipts shall be closed
effective as of the Acquisition Closing Time, or, as the case may be, 5:00 p.m.
(Toronto time) on the Termination Date at the Designated Office. Trades settling after
the Acquisition Closing Date will be completed by the delivery of Underlying Common
Shares.
	 
	 	(d)	 	The Subscription Receipt Agent will promptly advise the Company of any
requested transfer of Subscription Receipts. The Company will be entitled, and may
direct, the Subscription Receipt Agent, to refuse to recognize any transfer, or enter
the name of any transferee, of any Subscription Receipts on the registers referred to
in this Article 2, if the Company determines, acting reasonably, such transfer would
constitute a violation of the securities laws of any jurisdiction or the rules,
regulations or policies of any regulatory authority having jurisdiction, or would be
contrary to the terms of this Agreement.
	 
	 	(e)	 	Subject to the provisions of this Agreement and applicable law (including
Applicable Securities Laws), Receiptholders shall be entitled to the rights and
privileges attaching to the Subscription Receipts. Either (i) the issue of Underlying
Common Shares by the Company and the payment by the Subscription Receipt Agent and the
U.S. Escrow Agent, as applicable, of the applicable Special Payment, if any, each less
applicable withholding taxes, if any, as provided in Section 3.2 or (ii)(A) in the case
of a Canadian or non-U.S. resident




-13-









 






	 	 	 	Receiptholder, the reimbursement of the Canadian Proceeds and the payment of the
Canadian Earned Interest by the Subscription Receipt Agent, less applicable
withholding taxes, if any, as provided in Section 3.5 or (B) in the case of a U.S.
resident Receiptholder, the reimbursement of the U.S. Proceeds and the payment of
the U.S. Earned Interest by the U.S. Escrow Agent, less applicable withholding
taxes, if any, as provided in Section 3.5, all in accordance with the terms and
conditions herein contained, shall discharge all responsibilities of the Company,
the Subscription Receipt Agent and the U.S. Escrow Agent with respect to such
Subscription Receipts, and none of the Company, the Subscription Receipt Agent or
the U.S. Escrow Agent shall be bound to inquire into the title of a Receiptholder.






	2.14	 	Legends






	 	 	 	Each Subscription Receipt Certificate and each Subscription Receipt Certificate
issued in exchange therefor or in substitution thereof will bear, as of the Closing
Date, the following legends substantially in the following form:
	 
	 	 	 	THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR ANY STATE
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE
BENEFIT OF THE COMPANY THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY: (A) TO THE COMPANY (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE U.S. SECURITIES ACT, (C) OUTSIDE THE UNITED STATES
IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT IF
AVAILABLE, (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES
ACT PROVIDED BY RULE 144, IF AVAILABLE, AND IN COMPLIANCE WITH ANY STATE SECURITIES
LAWS, OR (E) WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY, PURSUANT TO ANOTHER
EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS; PROVIDED THAT, IN CONNECTION WITH A TRANSFER PURSUANT TO (C), (D)
OR (E) ABOVE, AN OPINION OF COUNSEL, OF RECOGNIZED STANDING REASONABLY SATISFACTORY
TO THE COMPANY HAS BEEN PROVIDED TO THE COMPANY TO SUCH EFFECT.
	 
	 	 	 	UNLESS PERMITTED UNDER SECURITIES LEGISLATION AND CONSENTED TO BY SWISHER HYGIENE
INC. AND CLARUS SECURITIES INC., THE HOLDER OF THIS SECURITY MUST NOT TRADE THE
SECURITY BEFORE JUNE 24, 2011.




-14-









 












	 	(a)	 	Each certificate representing Underlying Common Shares issued to Receiptholders
will bear, the following legend substantially in the following form:
	 
	 	 	 	THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR ANY STATE
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE
BENEFIT OF THE COMPANY THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY: (A) TO THE COMPANY, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE U.S. SECURITIES ACT, (C) OUTSIDE THE UNITED STATES
IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT IF
AVAILABLE, (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES
ACT PROVIDED BY RULE 144, IF AVAILABLE, AND IN COMPLIANCE WITH ANY STATE SECURITIES
LAWS, OR (E) WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY, PURSUANT TO ANOTHER
EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS; PROVIDED THAT, IN CONNECTION WITH A TRANSFER PURSUANT TO (C), (D)
OR (E) ABOVE, AN OPINION OF COUNSEL, OF RECOGNIZED STANDING REASONABLY SATISFACTORY
TO THE COMPANY HAS BEEN PROVIDED TO THE COMPANY TO SUCH EFFECT.
	 
	 	(b)	 	Each certificate representing Underlying Common Shares issued to Receiptholders
will bear, if issued prior to the date that is four months after the Closing Date, the
following legends substantially in the following form:
	 
	 	 	 	THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE LISTED ON THE TORONTO STOCK
EXCHANGE (“TSX”); HOWEVER, THE SAID SECURITIES CANNOT BE TRADED THROUGH THE
FACILITIES OF THE TSX SINCE THEY ARE NOT FREELY TRANSFERABLE, AND CONSEQUENTLY ANY
CERTIFICATE REPRESENTING SUCH SECURITIES IS NOT “GOOD DELIVERY” IN SETTLEMENT OF
TRANSACTIONS ON THE TSX.
	 
	 	 	 	UNLESS PERMITTED UNDER SECURITIES LEGISLATION AND CONSENTED TO BY SWISHER HYGIENE
INC. AND CLARUS SECURITIES INC., THE HOLDER OF THIS SECURITY MUST NOT TRADE THE
SECURITY BEFORE JUNE 24, 2011.
	 
	 	(c)	 	The parties hereby acknowledge and agree that the Subscription Receipts are
“restricted securities” as defined in Rule 144 under the 1933 Act and may not be
reoffered or resold, pledged or otherwise transferred except: (i) to the Company; (ii)
outside the United States in accordance with Rule 904 of Regulation S under the 1933
Act, if available, and subject to Rule 905 of Regulation S under the 1933




-15-









 






	 	 	 	Act, and in compliance with applicable Canadian and provincial laws and regulations;
(iii) inside the United States in accordance with (A) the exemption from
registration under the 1933 Act provided by Rule 144 thereunder, if available, or
(B) another exemption from the registration requirements of the 1933 Act and in
compliance with applicable Canadian and provincial laws and regulations; or (iv)
under an effective registration statement under the 1933 Act, and in each case in
accordance with any applicable state securities laws in the United States or
securities laws of any other applicable jurisdiction.
	 
	 	(d)	 	Notwithstanding Section 2.14(a) and 2.14(b), if the Subscription Receipts are
being sold pursuant to section (D) of the U.S. legend, the U.S. legend may be removed
by delivery to the Company’s registrar and transfer agent and the Company of an opinion
of counsel, of recognized standing in form and substance satisfactory to the Company,
that such legend is no longer required under applicable requirements of the 1933 Act or
state securities laws.






	2.15	 	Proceeds to be Placed in Escrow




Upon the receipt and acceptance by the Company of duly completed subscriptions for Subscription
Receipts, and upon the issuance of the Subscription Receipts, the Canadian Proceeds shall be
delivered to the Subscription Receipt Agent and the U.S. Proceeds shall be delivered to the U.S.
Escrow Agent, in each case to be held pursuant to the terms hereof. Each of the Subscription
Receipt Agent and the U.S. Escrow Agent shall immediately place such funds in escrow to be held
pursuant to the terms hereof. The Subscription Receipt Agent hereby agrees to hold the Canadian
Proceeds, as escrow agent for and on behalf of the Company and the Canadian and non-U.S.
Receiptholders and to release and deal with the Canadian Escrowed Funds, as provided herein. The
U.S. Escrow Agent hereby agrees to hold the U.S. Proceeds, as trustee and agent for and on behalf
of the Company and the U.S. Receiptholders and to release and deal with the U.S. Escrowed Funds, as
provided herein.





	2.16	 	Subscription Receipts and Trading




The Company confirms that the Subscription Receipts will not be listed for trading on the TSX or
NASDAQ.





	2.17	 	Cancellation of Surrendered Subscription Receipt Certificates




All Subscription Receipt Certificates surrendered to the Subscription Receipt Agent pursuant to
Sections 2.11, 2.12 and 2.13 shall be returned to or received by the Subscription Receipt Agent for
cancellation and, if required by the Company, the Subscription Receipt Agent shall furnish the
Company with a cancellation certificate identifying the Subscription Receipt Certificates so
cancelled and the number of Subscription Receipts evidenced thereby.







-16-









 








ARTICLE 3

ISSUANCE OF UNDERLYING COMMON SHARES





	3.1	 	Notice of Acquisition




If the Acquisition Closing Time occurs on or before the Termination Time, the Company shall: (a) at
the Acquisition Closing Time, cause the Acquisition Notice, to be delivered to the Subscription
Receipt Agent and the U.S. Escrow Agent, and (b) issue a press release disclosing that the closing
of the Acquisition has occurred and that the Underlying Common Shares have been issued to
Receiptholders. The notice delivered to the Subscription Receipt Agent and the U.S. Escrow Agent
shall specify the amounts to be released pursuant to Section 3.2 and to whom such amounts should be
released.





	3.2	 	Release of Escrowed Funds






	 	(a)	 	Upon delivery of the Acquisition Notice pursuant to Section 3.1, the Company
shall:






	 	(i)	 	be deemed to have instructed the Subscription Receipt Agent to
pay, promptly after the Acquisition Closing Time, from the Canadian Escrowed
Funds to Clarus, on behalf of the Agents, the Escrowed Agents’ Fee and an
additional amount to be confirmed by the Company in the notice delivered
pursuant to Section 3.1 (representing the amount of expenses reimbursable to
the Agents by the Company pursuant to the Agency Agreement), and Clarus shall
upon receipt thereof give the Company and the Subscription Receipt Agent a
final receipt therefor on behalf of the Agents;
	 
	 	(ii)	 	be deemed to have instructed the Subscription Receipt Agent and
the U.S. Escrow Agent to pay, on the Special Payment Date, from the Canadian
Escrowed Funds and the U.S. Escrowed Funds, as applicable, to the holders an
amount equal to the Special Payment;
	 
	 	(iii)	 	be entitled to receive from the Subscription Receipt Agent,
the Canadian Escrowed Funds less any amount to be paid by the Subscription
Receipt Agent pursuant to Sections 3.2(a)(i) and 3.2(a)(ii); and
	 
	 	(iv)	 	be entitled to receive from the U.S. Escrow Agent, the U.S.
Escrowed Funds less any amount to be paid by the U.S. Escrow Agent pursuant to
Section 3.2(a)(ii).






	 	(b)	 	The Subscription Receipt Agent shall (i) deliver the funds referred to in
Section 3.2(a)(iii) to or at the direction of the Company forthwith upon the delivery
of the notice delivered pursuant to Section 3.1, (ii) promptly after the Acquisition
Closing Time, deliver or cause to be delivered to Clarus the amount referred to in
Section 3.2(a)(i) and (iii) on the Special Payment Date, deliver or cause to be
delivered to the Canadian and non-U.S. resident holders the amount referred to in
Section 3.2(a)(ii).




-17-









 






	 	(c)	 	The U.S. Escrow Agent shall (i) deliver the funds referred to in Section
3.2(a)(iv) to or at the direction of the Company forthwith upon the delivery of the
notice delivered pursuant to Section 3.1 and (ii) on the Special Payment Date, deliver
or cause to be delivered to the U.S. resident holders the amount referred to in Section
3.2(a)(ii).






	3.3	 	Issue of Underlying Common Shares






	 	(a)	 	If the Acquisition Closing Time occurs on or before the Termination Time and
the notice required by Section 3.1 has been delivered, the Underlying Common Shares
shall be, and shall be deemed to be, automatically issued at the Acquisition Closing
Time to the Receiptholders, and each Receiptholder shall automatically receive, without
the surrender of the Subscription Receipt Certificate or payment of any additional
consideration, one Underlying Common Share for each Subscription Receipt (subject to
adjustments in certain circumstances as herein provided) held by such Receiptholder,
and such Receiptholder shall be deemed to have become the holder of record of such
Underlying Common Shares at the Acquisition Closing Time.
	 
	 	(b)	 	Effective immediately after the Underlying Common Shares have been, or have
been deemed to be, issued as contemplated by this Section 3.3, the Subscription
Receipts relating thereto shall be void and of no value or effect.






	3.4	 	Fractions




Notwithstanding anything herein contained, the Company shall not be required, upon the exchange or
deemed exchange of the Subscription Receipt to issue fractions of Common Shares. In lieu of
fractional Common Shares, the total number of Common Shares to be issued to a holder shall be
rounded down to the nearest whole number of Common Shares, with no cash payment being made for the
fractional share.





	3.5	 	Payment on Termination






	 	(a)	 	If Termination occurs, the Company shall forthwith notify the Agents, the
Subscription Receipt Agent and the U.S. Escrow Agent in writing and shall issue a press
release setting forth the Termination Date.
	 
	 	(b)	 	If Termination occurs, the subscription evidenced by each Subscription Receipt
shall be automatically terminated and cancelled, without any further action, and:






	 	(i)	 	each Canadian and non-U.S. resident holder of record as of 5:00
p.m. (Toronto time) on the Termination Date shall be entitled to receive from
the Subscription Receipt Agent, from and after the Termination Date, but no
earlier than on the Termination Payment Date, a cheque in the aggregate amount
of (A) the Subscription Receipt Price in respect of each of such holder’s
Subscription Receipts and (B) such holder’s pro rata share of the Canadian
Earned Interest, less applicable withholding taxes, if




-18-









 






	 	 	 	any. The amount paid to each holder under this Section 3.5(b)(i) shall be
satisfied from the Canadian Escrowed Funds; and
	 
	 	(ii)	 	each U.S. resident holder of record as of 5:00 p.m. (Toronto
time) on the Termination Date shall be entitled to receive from the U.S. Escrow
Agent, from and after the Termination Date, a cheque in the aggregate amount of
(A) the Subscription Receipt Price in respect of each of such holder’s
Subscription Receipts and (ii) such holder’s pro rata share of the U.S. Earned
Interest, less applicable withholding taxes, if any. The amount paid to each
holder under this Section 3.5(b)(ii) shall be satisfied from the U.S. Escrowed
Funds.






	 	(c)	 	The obligation to make the payment of the amount specified in Section 3.5(b)
shall be satisfied by mailing payment by cheque payable to the holders at each holder’s
registered address. If by reason of a strike, lockout or other work stoppage, actual or
threatened, involving postal employees, any payment to be given to the holders
hereunder could reasonably be considered unlikely to reach its destination, each
payment shall be considered as delivered only if it is delivered to the holders to whom
it is addressed or by other means of prepaid mail.
	 
	 	(d)	 	Upon the mailing or delivery of any cheque as provided in Section 3.5(c) (and
provided such cheque has been honoured for payment, if presented for payment within six
months of the date thereof), all rights evidenced by the Subscription Receipts relating
thereto shall be satisfied and such Subscription Receipts shall be void and of no value
or effect.






	3.6	 	Additional Payments by the Company






	 	 	The Company shall, no later than two Business Days before the date upon which any amount is
required to be paid pursuant to this Article 3, pay by way of same day valued wire transfer
to the Subscription Receipt Agent and the U.S. Escrow Agent any shortfall on any such amount
as will be sufficient to allow the Subscription Receipt Agent and the U.S. Escrow Agent to
pay in full, within the prescribed delays, the amounts required to be paid under this
Article 3.





ARTICLE 4

RIGHTS OF THE COMPANY AND COVENANTS





	4.1	 	Optional Purchases by the Company






	 	 	Subject to compliance with applicable law (including Applicable Securities Laws), the
Company may from time to time purchase by private contract or otherwise any of the
Subscription Receipts. Any such purchase shall be made on such terms and conditions as the
parties in their sole discretion may determine. The Subscription Receipt Certificates
representing the Subscription Receipts so purchased shall forthwith be surrendered to, and
cancelled by, the Subscription Receipt Agent in compliance with Section 2.17.




-19-









 












	4.2	 	General Covenants






	 	(a)	 	The Company covenants with the Subscription Receipt Agent, the U.S. Escrow
Agent and the Agents that so long as any Subscription Receipts remain outstanding:






	 	(i)	 	it will promptly comply with all filing and other requirements
under all U.S. Securities Laws and Canadian Securities Laws, including those
necessary to remain a reporting issuer not in default in each of the provinces
of Canada in which it is currently a reporting issuer;
	 
	 	(ii)	 	it will announce by press release the Acquisition Closing Date
or the Termination Date, as the case may be, in accordance with the provisions
hereof;
	 
	 	(iii)	 	it will perform and carry out all of the acts or things to be
done by it as provided in this Agreement;
	 
	 	(iv)	 	it will reserve and keep available a sufficient number of
Common Shares for the purpose of enabling it to satisfy its obligations to
issue Underlying Common Shares pursuant to the Subscription Receipts;
	 
	 	(v)	 	it will cause the Underlying Common Shares to be duly issued as
fully paid and non-assessable shares and delivered in accordance with the
Subscription Receipts and the terms hereof;
	 
	 	(vi)	 	with respect to any notices to be given or other acts to be
performed or which may be given or performed by Clarus and any other Agents
under or pursuant to this Agreement (including the Acquisition Notice
contemplated by Section 3.1), it will provide to Clarus in a timely manner all
such information and documents as the Agents (or any of them) may reasonably
request and is within the knowledge or control of the Company in order to
verify the factual circumstances relating to such notices or acts and, if
requested, such information shall be certified correct by the Company; and
	 
	 	(vii)	 	it will use its best efforts to ensure that the Underlying
Common Shares, upon issuance, are listed and posted for trading on the TSX and
the NASDAQ.






	4.3	 	Remuneration, Expenses and Indemnification






	 	(a)	 	The Company covenants that it will pay to each of the Subscription Receipt
Agent and the U.S. Escrow Agent from time to time reasonable remuneration for its
services hereunder and will pay or reimburse each of the Subscription Receipt Agent and
the U.S. Escrow Agent upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Subscription Receipt Agent or the U.S. Escrow Agent,
as applicable, in the administration or execution of this




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	 	 	 	Agreement (including the reasonable compensation and the disbursements of its
counsel and all other advisers and assistants not regularly in its employ) both
before any default hereunder and thereafter until all duties of each of the
Subscription Receipt Agent and the U.S. Escrow Agent hereunder shall be finally and
fully performed, except any such expense, disbursement or advance as may arise out
of or result from the Subscription Receipt Agent’s or the U.S. Escrow Agent’s, as
applicable, gross negligence, willful misconduct or bad faith. Any amount owing
hereunder and remaining unpaid after 30 days from the invoice date will bear
interest at the then current rate charged by the Subscription Receipt Agent or the
U.S. Escrow Agent, as applicable, against unpaid invoices and shall be payable on
demand.






	 	(b)	 	The Company hereby indemnifies and saves harmless the Subscription Receipt
Agent and the U.S. Escrow Agent and their respective officers, directors, employees and
agents from and against any and all liabilities, losses, costs, claims, actions or
demands whatsoever which may be brought against the Subscription Receipt Agent or the
U.S. Escrow Agent or which it may suffer or incur as a result or arising out of the
performance of its duties and obligations under this Agreement, save only in the event
of gross negligence, willful misconduct or bad faith of the Subscription Receipt Agent
or the U.S. Escrow Agent, as applicable. It is understood and agreed that this
indemnification shall survive the termination or the discharge of this Agreement or the
resignation or replacement of the Subscription Receipt Agent or the U.S. Escrow Agent,
as applicable.






	4.4	 	Performance of Covenants




If the Company shall fail to perform any of its covenants contained in this Agreement, the
Subscription Receipt Agent or the U.S. Escrow Agent, as applicable, may notify the Receiptholders
and the Agents of such failure on the part of the Company or may itself perform any of the said
covenants capable of being performed by it but only in their respective capacities; however, there
shall be no obligation to perform said covenants or to notify the Receiptholders of such
performance. All sums expended or advanced by the Subscription Receipt Agent or the U.S. Escrow
Agent in so doing shall be repayable as provided in Section 4.3. No such performance, expenditure
or advance by the Subscription Receipt Agent or the U.S. Escrow Agent shall relieve the Company of
any default hereunder or of its continuing obligations under the covenants contained herein.




4.5 Accounting





	 	(a)	 	The Subscription Receipt Agent shall maintain accurate books, records and
accounts of the transactions effected or controlled by the Subscription Receipt Agent
hereunder and the receipt, investment, reinvestment and disbursement of the Canadian
Escrowed Funds, and shall provide to the Company and the Agents records and statements
thereof periodically upon written request.




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	 	(b)	 	The U.S. Escrow Agent shall maintain accurate books, records and accounts of
the transactions effected or controlled by the U.S. Escrow Agent hereunder and the
receipt, investment, reinvestment and disbursement of the U.S. Escrowed Funds, and
shall provide to the Company and the Agents records and statements thereof periodically
upon written request.
	 
	 	(c)	 	The Company shall have the right to audit any such books, records, accounts and
statements.






	4.6	 	Regulatory Matters




The Company shall file all such documents, notices and certificates and take such steps and do such
things as may be necessary under Applicable Securities Laws to permit the issuance of the
Underlying Common Shares in the circumstances contemplated by Section 3.3 such that (a) such
issuance will comply with the prospectus and registration requirements (or exemptions therefrom) of
Applicable Securities Laws in each of the provinces of Canada and the United States, and each
applicable state thereof, and (b) the first trade in the Underlying Common Shares, when and if
issued, (other than from the holdings of a Person who, alone or in combination with others, holds
sufficient Common Shares to materially affect control of the Company) will not be subject to, or
will be exempt from, the prospectus requirements of Applicable Securities Laws in each of the
provinces of Canada (subject to a hold period under Applicable Securities Laws of four months plus
one day following the date of issue of the Subscription Receipts) and the Underlying Common Shares
may not be offered or sold in the absence of an applicable exemption under the U.S. Securities Act
or as set forth in Section 2.14 until (other than by a Person who is an “affiliate” of the Company
as defined in Rule 144(a)(1) under the U.S. Securities Act) one year after the Company has filed
“Form 10 information” (as defined in Rule 144(i)(3) under the U.S. Securities Act) with the U.S.
Securities and Exchange Commission (the “SEC”) namely, November 10, 2011, unless the offer and sale
of the Underlying Common Shares by the holder thereof has been registered with the SEC on a
registration statement that is effective at the time of such offer and sale.





	4.7	 	Payments by the Subscription Receipt Agent and the U.S. Escrow Agent




In the event that any funds to be disbursed by the Subscription Receipt Agent or the U.S. Escrow
Agent in accordance herewith have been received by such agent in the form of an uncertified cheque
or cheques, the Subscription Receipt Agent or the U.S. Escrow Agent, as applicable, shall be
entitled to delay the time for disbursement of such funds hereunder until such uncertified cheque
or cheques have cleared in the ordinary course the financial institution upon which the same are
drawn. Each of the Subscription Receipt Agent and the U.S. Escrow Agent will disburse monies
according to this Agreement only to the extent that monies have been deposited with it.





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ARTICLE 5

ADJUSTMENTS





	5.1	 	Definitions




In this Article 5, references to any “record date” refer to the particular time on such relevant
date stipulated for such event and otherwise refer to 5:00 p.m. (Toronto time) on such date.





	5.2	 	Adjustment




The rights attaching to the Subscription Receipts are subject to adjustment from time to time in
the events and in the manner provided as follows:





	 	(a)	 	If, at any time after the issuance of the Subscription Receipts and before the
Acquisition Closing Time, the Company:






	 	(i)	 	subdivides its outstanding Common Shares into a greater number
of Common Shares, or
	 
	 	(ii)	 	consolidates its outstanding Common Shares into a lesser number
of Common Shares,






	 	 	 	(any of such events in paragraphs (i) and (ii) being a “Common Share
Reorganization”), then the number of Underlying Common Shares with respect to each
Subscription Receipt will be adjusted as of the record date at which the holders of
Common Shares are determined for the purpose of the Common Share Reorganization by
multiplying the number of Underlying Common Shares obtainable immediately prior to
such record date by a fraction, the numerator of which will be the number of Common
Shares outstanding on the record date after giving effect to such Common Share
Reorganization and the denominator of which will be the number of Common Shares
outstanding on the record date before giving effect to such Common Share
Reorganization.
	 
	 	(b)	 	If, at any time after the issuance of the Subscription Receipts and before the
Acquisition Closing Time, there is a reclassification of Common Shares at any time
outstanding or a change of the Common Shares into other securities or property (other
than a Common Share Reorganization), or a consolidation, amalgamation, arrangement or
acquisition of the Company with or into any corporation or other entity (other than a
consolidation, amalgamation, arrangement or Acquisition that does not result in any
reclassification of the outstanding Common Shares or a change of the Common Shares into
other securities or property), or a transfer of the undertakings or assets of the
Company as an entirety or substantially as an entirety to another entity, or a record
date for any of the foregoing events occurs, (any of such events being a “Capital
Reorganization”), any holder entitled to acquire Underlying Common Shares after the
record date or effective date of such Capital Reorganization will be entitled to
receive, and shall accept in lieu of the number of Underlying Common
Shares to which such holder was theretofore entitled, the aggregate number of 




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	 	 	 	other
securities or other property which such holder would have been entitled to receive
as a result of such Capital Reorganization if, on the effective date of such Capital
Reorganization, the holder had been the registered holder of the number of
Underlying Common Shares to which such holder was then entitled with respect to the
Subscription Receipts subject to adjustment thereafter in accordance with provisions
the same, as nearly as may be possible, as those contained in Section 5.2, provided
however, that no such Capital Reorganization will be carried into effect unless all
necessary steps have been taken to so entitle the holders. If determined appropriate
by the Company, acting reasonably, appropriate adjustments will be made as a result
of any such Capital Reorganization in the application of the provisions set forth in
this Article 5 with respect to the rights and interests thereafter of the holders to
the end that the provisions set forth in this Article 5 will thereafter
correspondingly be made applicable as nearly as may be reasonable in relation to any
other securities or other property thereafter deliverable upon the exercise of any
Subscription Receipt. Any such adjustments will be made by and set forth in terms
and conditions supplemental to this agreement approved by the Company, acting
reasonably and absent manifest error, and will for all purposes be conclusively
deemed to be the appropriate adjustment.
	 	(c)	 	If at any time after the issuance of the Subscription Receipts and prior to the
Acquisition Closing Time, the Company issues or distributes to the holders of all or
substantially all of the outstanding Common Shares, cash or securities of the Company,
including rights, options or warrants to acquire Common Shares or securities
convertible into or exchangeable for Common Shares or property or assets, including
evidences of indebtedness, other than as a result of a Common Share Reorganization or a
Capital Reorganization, or a record date for any of the foregoing events occurs, the
holders will be entitled to receive, and will receive, in addition to the number of
Underlying Common Shares to which such holder was theretofore entitled, the kind and
amount of Common Shares, cash or other securities or property or assets which result
from such issue or distribution as if, on the record date at which holders of Common
Shares are determined for the purpose of such distribution, such holder had been the
registered holder of the number of Underlying Common Shares to which the holder was
theretofore entitled. Any such transfer will be subject to approval of the TSX and
NASDAQ, if required.
	 
	 	(d)	 	The adjustments provided for in this Section 5.2 are cumulative and shall apply
to successive subdivisions, consolidations, changes, distributions, issues or other
events resulting in any adjustment under the provisions of this Section 5.2.
	 
	 	(e)	 	In case the Company, after the date hereof, shall take any action affecting the
Common Shares, other than the actions described in this Section 5.2, which, in the
reasonable opinion of the directors of the Company, would materially affect the rights
of the Receiptholders and/or the rights attaching to the Subscription Receipts, then
the number of Underlying Common Shares which are to be
received pursuant to the Subscription Receipts shall be adjusted in such manner, if





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	 	 	 	any, and at such time as the directors of the Company may reasonably determine to be
equitable to the Receiptholders in such circumstances.






	5.3	 	Determination by the Company’s Auditors




In the event of any question arising with respect to the adjustments provided for in this Article
5, including the failure to adjust, such question shall be conclusively determined by the Company’s
auditors or if they are unwilling or unable to act, by such other firm of accredited independent
accountants as may be selected by the directors of the Company, and they shall have access to all
necessary records of the Company, and such determination shall be binding upon the Company, the
Subscription Receipt Agent, the Receiptholders and all other persons interested therein.





	5.4	 	Certificate of Adjustment




The Company shall from time to time immediately after the occurrence of any event which requires an
adjustment or readjustment as provided in this Article 5, deliver a certificate of the Company to
the Subscription Receipt Agent specifying the nature of the event requiring the same and the amount
of the adjustment necessitated thereby and setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based.





	5.5	 	Notice of Special Matters




The Company covenants with the Subscription Receipt Agent that, so long as any Subscription Receipt
Certificates remain outstanding, it shall send notice to the Subscription Receipt Agent and to the
Receiptholders in accordance with this Article 5 of any intention to fix a record date that is
prior to the Termination Time for the issuance of rights, options or warrants (other than the
Subscription Receipts) to all or substantially all the holders of its outstanding Common Shares.
Such notice shall specify the particulars of such event and the record date for such event,
provided that the Company shall only be required to specify in the notice such particulars of the
event as shall have been fixed and determined on the date on which the notice is given. The notice
shall be sent in each case not less than 14 days prior to such applicable record date.





	5.6	 	No Action after Notice




The Company covenants with the Subscription Receipt Agent that it will not close its transfer books
or take any other corporate action which might deprive the Receiptholder of the opportunity to
exercise its right of acquisition pursuant thereto during the period of 14 days after the giving of
the notices set forth in Section 5.5.





	5.7	 	Proceedings Prior to any Action Requiring Adjustment




As a condition precedent to the taking of any action which would require an adjustment of the
number of Underlying Common Shares to be issued hereunder, the Company shall take any corporate
action which may, in the opinion of counsel to the Company, be necessary to ensure that the Company
has sufficient authorized capital and that the Company may validly and legally issue, as fully paid
and non-assessable Common Shares, all of the Common Shares which the
holders of such Subscription Receipts are entitled to receive on the full exercise thereof in
accordance with the provisions of this Agreement.



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	5.8	 	Protection of Subscription Receipt Agent




The Subscription Receipt Agent:





	 	(a)	 	shall not at any time be under any duty or responsibility to any Receiptholder
to determine whether any facts exist which may require any adjustment contemplated by
this Article 5, or with respect to the nature or extent of any such adjustment when
made, or with respect to the method employed in making the same;
	 
	 	(b)	 	shall not be accountable with respect to the validity or value (or the kind or
amount) of any Common Shares or any shares or other securities or property which may at
any time be issued or delivered upon the exercise of the rights attaching to any
Subscription Receipt;
	 
	 	(c)	 	shall not be responsible for any failure of the Company to issue, transfer or
deliver Common Shares or certificates for the same upon the surrender of any
Subscription Receipt Certificates for the purpose of the exercise of such rights or to
comply with any of the covenants contained in this Article 5;
	 
	 	(d)	 	shall not incur any liability or responsibility whatsoever or be in any way
responsible for the consequences of any breach on the part of the Company of any of the
representations, warranties or covenants herein contained or of any acts of the
directors, officers, employees, agents or servants of the Company; and
	 
	 	(e)	 	shall be entitled to act and rely upon the certificates or adjustment
calculations of the Company and the auditor of the Company and any other documents
filed by the Company pursuant to Section 5.4, without verification or liability.





ARTICLE 6

INVESTMENT OF ESCROWED FUNDS





	6.1	 	Investment of Escrowed Funds






	 	(a)	 	Until released in accordance with this Agreement, the Subscription Receipt
Agent shall hold, invest and reinvest the Canadian Escrowed Funds on behalf of the
Receiptholders and the Company in short-term interest bearing or discount debt
obligations issued or guaranteed by the Government of Canada, as directed in writing by
the Company. Such direction to the Subscription Receipt Agent shall be provided by the
Company no later than 9:00 a.m. (Toronto time) on the day on which the investment is to
be made. Any direction received by the Subscription Receipt Agent after 9:00 a.m. or
on a day which is not a Business Day, shall be deemed to have been given prior to 9:00
a.m. on the next Business Day. If, at any time, the Canadian Escrowed Funds include
cash that is not invested and the Company has not provided directions to the
Subscription Receipt Agent to invest such cash, the Subscription Receipt Agent shall
deposit all such uninvested cash
in an account, a term deposit or guaranteed investment certificates of the
Subscription Receipt Agent or a Canadian chartered bank, having either no fixed term
or no irrevocable term and which pays interest on the daily balance. The





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	 	 	 	Subscription Receipt Agent shall have no liability with respect to any loss in value
of investments as permitted to be made hereunder. In making any payment, the
Subscription Receipt Agent shall not be liable for any loss sustained from early
termination of an investment if such termination is required to make a payment
hereunder.
	 
	 	(b)	 	Until released in accordance with this Agreement, the U.S. Escrow Agent shall
hold the U.S. Escrowed Funds on behalf of the Receiptholders and the Company in an
interest bearing checking account established at J.P. Morgan Chase Bank N.A., Toronto
Branch. The U.S. Escrow Agent shall have no liability with respect to any loss in value
of investments as permitted to be made hereunder. In making any payment, the U.S.
Escrow Agent shall not be liable for any loss sustained from early termination of an
investment if such termination is required to make a payment hereunder.






	6.2	 	Segregation of Proceeds






	 	(a)	 	The Canadian Escrowed Funds received by the Subscription Receipt Agent and any
securities or other instruments received by the Subscription Receipt Agent upon the
investment or reinvestment of such Canadian Escrowed Funds, shall be received as agent
for, and shall be segregated and kept apart by the Subscription Receipt Agent as agent
for, the Canadian and non-U.S. Receiptholders and the Company.
	 
	 	(b)	 	The U.S. Escrowed Funds received by the U.S. Escrow Agent shall be received as
agent for, and shall be segregated and kept apart by the U.S. Escrow Agent as agent
for, the U.S. Receiptholders and the Company. It is understood and agreed that the
U.S. Escrow Agent’s only responsibility under this Section 6.2(b) is to maintain the
U.S. Escrowed Funds in an interest bearing checking account established at J.P. Morgan
Chase Bank, N.A., Toronto Branch.






	6.3	 	Third Party Interest




The Company hereby represents to the Subscription Receipt Agent and the U.S. Escrow Agent that any
account to be opened, or interest to be held, by the Subscription Receipt Agent or the U.S. Escrow
Agent in connection with this Agreement, to the extent opened or held for or to the credit of the
Company, is not intended to be used by or on behalf of any third party.




ARTICLE 7

ENFORCEMENT





	7.1	 	Suits by Receiptholders




Subject to the powers of Receiptholders exercisable by special resolution, all or any of the rights
conferred upon any Receiptholder by any of the terms of the Subscription Receipt Certificates or
of this Agreement, or of both, may be enforced by the Receiptholder by appropriate proceedings but
without prejudice to the right which is hereby conferred upon the Subscription Receipt Agent




-27-









 







to
proceed in its own name to enforce each and all of the provisions contained herein for the benefit
of the Receiptholders.





	7.2	 	Immunity of Shareholders, etc.




The Subscription Receipt Agent and, by the acceptance of the Subscription Receipts and as part of
the consideration for the issue of the Subscription Receipts, the Receiptholders hereby waive and
release any right, cause of action or remedy now or hereafter existing in any jurisdiction against
any settlor or any past, present or future Shareholder, officer, employee or agent of the Company
or any successor entity for the issue of Common Shares pursuant to any Subscription Receipt or on
any covenant, agreement, representation or warranty by the Company contained herein or in the
Subscription Receipt Certificates.





	7.3	 	Limitation of Liability




The obligations hereunder are not personally binding upon, nor shall there be any recourse against,
the private property of any of the past, present or future officer, director, employee or agent or
Shareholder of the Company or any successor entity or any past, present or future officer,
director, employee or agent of the Company or of any successor entity, but only the property of the
Company or any successor entity shall be bound in respect hereof.




ARTICLE 8

MEETINGS OF RECEIPTHOLDERS





	8.1	 	Right to Convene Meetings




The Subscription Receipt Agent may at any time and from time to time, and shall on receipt of a
written request of the Company or of a Receiptholders’ Request and upon being funded and
indemnified to its reasonable satisfaction by the Company or by the Receiptholders signing such
Receiptholders’ Request against the cost which may be incurred in connection with the calling and
holding of such meeting, convene a meeting of the Receiptholders. In the event of the Subscription
Receipt Agent failing to so convene a meeting within 15 days after receipt of such written request
of the Company or such Receiptholders’ Request and funding and indemnity given as aforesaid, the
Company or such Receiptholders, as the case may be, may convene such meeting. Every such meeting
shall be held in the City of Toronto or at such other place as may be determined by the
Subscription Receipt Agent and approved by the Company.





	8.2	 	Notice




At least 10 days prior notice of any meeting of Receiptholders shall be given to the Receiptholders
in the manner provided for in Section 11.2 and a copy of such notice shall be sent by mail to the
Subscription Receipt Agent (unless the meeting has been called by the Subscription Receipt Agent)
and to the Company (unless the meeting has been called by the Company). Such notice shall state the
date (which shall be a Business Day) and time when, and the place in the City of Toronto where, the
meeting is to be held, shall state briefly the general nature of the business to be transacted
thereat and shall contain such information as is reasonably
necessary to enable the Receiptholders to make a reasoned decision on the matter, but it shall not





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be necessary for any such notice to set out the terms of any resolution to be proposed or any of
the provisions of this Article 8.





	8.3	 	Chairperson




An individual (who need not be a Receiptholder) designated in writing by the Subscription Receipt
Agent shall be chairperson of the meeting and, if no individual is so designated, or if the
individual so designated is not present within 15 minutes from the time fixed for the holding of
the meeting, the Receiptholders present in person or by proxy shall choose some individual present
to be chairperson.





	8.4	 	Quorum




Subject to the provisions of Section 8.11, at any meeting of the Receiptholders a quorum shall
consist of not less than two Receiptholders present in person or by proxy and holding 10% of the
then-outstanding Subscription Receipts. If a quorum of the Receiptholders shall not be present
within 30 minutes from the time fixed for holding any meeting, the meeting, if summoned by the
Receiptholders or on a Receiptholders’ Request, shall be dissolved; but in any other case the
meeting shall be adjourned to the same day in the next week (unless such day is not a Business Day,
in which case it shall be adjourned to the next following Business Day) at the same time and place
and no notice of the adjournment need be given. Any business may be brought before or dealt with at
an adjourned meeting which might have been dealt with at the original meeting in accordance with
the notice calling the same. No business shall be transacted at any meeting unless a quorum is
present at the commencement of business. At the adjourned meeting, the Receiptholders present in
person or by proxy shall form a quorum and may transact the business for which the meeting was
originally convened notwithstanding that they may not hold at least 10% of the then outstanding
Subscription Receipts.





	8.5	 	Power to Adjourn




The chairperson of any meeting at which a quorum of the Receiptholders is present may, with the
consent of the meeting, adjourn any such meeting and no notice of such adjournment need be given
except such notice, if any, as the meeting may prescribe.





	8.6	 	Show of Hands




Every question submitted to a meeting shall, subject to 8.7, be decided in the first place by a
majority of the votes given on a show of hands except that votes on a special resolution shall be
given in the manner hereinafter provided. At any such meeting, unless a poll is duly demanded as
herein provided, a declaration by the chairperson that a resolution has been carried or carried
unanimously or by a particular majority or lost or not carried by a particular majority shall be
conclusive evidence of the fact.





	8.7	 	Poll and Voting




On every special resolution, and on any other question submitted to a meeting and after a vote by
show of hands when demanded by the chairperson or by one or more of the Receiptholders
acting in person or by proxy and holding at least 5% of the Subscription Receipts then




-29-









 







outstanding,
a poll shall be taken in such manner as the chairperson shall direct. Questions other than those
required to be determined by special resolution shall be decided by a majority of the votes cast on
the poll.



On a show of hands, every person who is present and entitled to vote, whether as a Receiptholder or
as proxy for one or more absent Receiptholders, or both, shall have one vote. On a poll, each
Receiptholder present in person or represented by a proxy duly appointed by instrument in writing
shall be entitled to one vote in respect of each Subscription Receipt(s) then held or represented
by such person. A proxy need not be a Receiptholder. In the case of joint holders, any one of them
present in person or by proxy at the meeting may vote in the absence of the other or others; but in
case more than one of them shall be present in person or by proxy, they shall vote together in
respect of Subscription Receipts of which they are joint registered holders. The chairperson of any
meeting shall be entitled, both on a show of hands and on a poll, to vote in respect of the
Subscription Receipts, if any, that are held or represented by the chairperson.





	8.8	 	Regulations




The Subscription Receipt Agent, or the Company with the approval of the Subscription Receipt Agent,
may from time to time make and from time to time vary such regulations as it shall consider
necessary for:





	 	(a)	 	the setting of the record date for a meeting of holders of Subscription
Receipts for the purpose of determining Receiptholders entitled to receive notice of
and vote at such meeting;
	 
	 	(b)	 	the deposit of instruments appointing proxies at such place and time as the
Subscription Receipt Agent, the Company or the Receiptholders, convening the meeting,
as the case may be, may in the notice convening the meeting direct;
	 
	 	(c)	 	the deposit of instruments appointing proxies at some approved place or places
other than the place at which the meeting is to be held and enabling particulars of
such instruments appointing proxies to be mailed or telecopied before the meeting to
the Company or to the Subscription Receipt Agent at the place where the same is to be
held and for the voting of proxies so deposited as though the instruments themselves
were produced at the meeting;
	 
	 	(d)	 	the form of the instrument of proxy and the manner in which the instrument of
proxy must be executed; and
	 
	 	(e)	 	generally for the calling of meetings of Receiptholders and the conduct of
business thereat.




Any regulations so made shall be binding and effective and the votes given in accordance therewith
shall be valid and shall be counted. Save as such regulations may provide, the only persons who
shall be recognized at any meeting as a Receiptholder, or be entitled to vote or be present at the
meeting in respect thereof (subject to Section 8.9), shall be Receiptholders or their counsel, or
duly appointed proxies of Receiptholders.






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	8.9	 	Company, Subscription Receipt Agent and U.S. Escrow Agent may be Represented




The Company, the Subscription Receipt Agent and the U.S. Escrow Agent, by their respective
authorized employees and agents, and counsel and for the Subscription Receipt Agent may attend any
meeting of the Receiptholders, but shall have no vote as such unless in their capacity as
Receiptholder or a proxy holder.





	8.10	 	Powers Exercisable by Special Resolution




In addition to all other powers conferred upon them by any other provisions of this Agreement or by
law, the Receiptholders at a meeting shall, subject to the provisions of Section 8.11, have the
power, subject to all applicable regulatory and exchange approvals, exercisable from time to time
by special resolution (and only by special resolution):





	 	(a)	 	to agree to any modification, abrogation, alteration, compromise or arrangement
of the rights of Receiptholders or, subject to the consent of the Subscription Receipt
Agent, the Subscription Receipt Agent, against the Company or against its undertaking,
property and assets or any part thereof whether such rights arise under this Agreement
or the Subscription Receipt Certificates or otherwise;
	 
	 	(b)	 	to amend, alter or repeal any special resolution previously passed or
sanctioned by the Receiptholders;
	 
	 	(c)	 	to direct or to authorize the Subscription Receipt Agent or the U.S. Escrow
Agent, as applicable, to enforce any of the covenants on the part of the Company
contained in this Agreement or the Subscription Receipt Certificates or to enforce any
of the rights of the Receiptholders in any manner specified in such special resolution
or to refrain from enforcing any such covenant or right;
	 
	 	(d)	 	to waive, and to direct the Subscription Receipt Agent or the U.S. Escrow
Agent, as applicable, to waive, any default on the part of the Company in complying
with any provisions of this Agreement or the Subscription Receipt Certificates either
unconditionally or upon any conditions specified in such special resolution;
	 
	 	(e)	 	to restrain any Receiptholder from taking or instituting any suit, action or
proceeding against the Company for the enforcement of any of the covenants on the part
of the Company in this Agreement or the Subscription Receipt Certificates or to enforce
any of the rights of the Receiptholders;
	 
	 	(f)	 	to direct any Receiptholder who, as such, has brought any suit, action or
proceeding to stay or to discontinue or otherwise to deal with the same upon payment of
the costs, charges and expenses reasonably and properly incurred by such Receiptholder
in connection therewith;
	 
	 	(g)	 	to assent to any modification of, change in or omission from the provisions
contained in the Subscription Receipt Certificates and this Agreement or any ancillary
or supplemental instrument which may be agreed to by the Company,




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	 	 	 	and to authorize the Subscription Receipt Agent to concur in and execute any
ancillary or supplemental agreement embodying the change or omission;
	 
	 	(h)	 	with the consent of the Company (such consent not to be unreasonably withheld),
to remove the Subscription Receipt Agent or its successor in office and to appoint a
new subscription receipt agent to take the place of the Subscription Receipt Agent so
removed; and
	 
	 	(i)	 	to assent to any compromise or arrangement with any creditor or creditors or
any class or classes of creditors, whether secured or otherwise, and with holders of
any Common Shares or other securities of the Company.






	8.11	 	Meaning of Special Resolution






	 	(a)	 	The expression “special resolution” when used in this Agreement means, subject
as hereinafter provided in this Section 8.11 and in Section 8.14, a resolution proposed
at a meeting of Receiptholders duly convened for that purpose and held in accordance
with the provisions of this Article 8 at which two or more Receiptholders are present
in person either holding personally or representing as proxies not less in aggregate
than 25% of the number of Subscription Receipts then outstanding and passed by the
affirmative votes of Receiptholders holding more than 662/3% of the Subscription Receipts
represented at the meeting and voted on a poll upon such resolution.
	 
	 	(b)	 	Notwithstanding Section 8.11(a), if, at any meeting called for the purpose of
passing a special resolution, at least two Receiptholders holding not less in aggregate
than 25% of the then outstanding Subscription Receipts are not present in person or by
proxy within 30 minutes after the time appointed for the meeting, then the meeting, if
convened by Receiptholders or on a Receiptholders’ Request, shall be dissolved; but in
any other case it shall stand adjourned to such day, being not less than 21 nor more
than 60 days later, and to such place and time as may be determined by the chairperson.
Not less than 10 days prior notice shall be given of the time and place of such
adjourned meeting in the manner provided for in Section 11.2. It shall not be necessary
for such notice to set forth the purposes for which the meeting was originally called
or any other particulars. At the adjourned meeting:






	 	(i)	 	if the special resolution purports to exercise any of the
powers conferred pursuant to Sections 8.10(a), 8.10(d) or 8.10(i), or purports
to change the provisions of this Section 8.11 or of Section 8.14 or purports to
amend, alter or repeal any special resolution previously passed or sanctioned
by the Receiptholders in exercise of the powers referred to in this paragraph,
a quorum for the transaction of business shall consist of Receiptholders
holding more than 25% of the then outstanding Subscription Receipts present in
person or by proxy; and




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	 	(ii)	 	in any other case, a quorum for the transaction of business
shall consist of such Receiptholders as are present in person or by proxy.






	 	(c)	 	Votes on a special resolution shall always be given on a poll and no demand for
a poll on a special resolution shall be necessary.






	8.12	 	Powers Cumulative




Any one or more of the powers or any combination of the powers in this Agreement stated to be
exercisable by the Receiptholders by special resolution or otherwise may be exercised from time to
time and the exercise of any one or more of such powers or any combination of powers from time to
time shall not be deemed to exhaust the right of the Receiptholders to exercise such power or
powers or combination of powers then or thereafter from time to time.





	8.13	 	Minutes




Minutes of all resolutions and proceedings at every meeting of Receiptholders shall be made and
duly entered in books to be provided from time to time for that purpose by the Subscription Receipt
Agent at the expense of the Company, and any such minutes as aforesaid, if signed by the
chairperson or the secretary of the meeting at which such resolutions were passed or proceedings
had or by the chairperson or secretary of the next succeeding meeting held shall be prima facie
evidence of the matters therein stated and, until the contrary is proved, every such meeting in
respect of the proceedings of which minutes shall have been made shall be deemed to have been duly
convened and held, and all resolutions passed thereat or proceedings taken shall be deemed to have
been duly passed and taken.





	8.14	 	Instruments in Writing




All actions which may be taken and all powers that may be exercised by the Receiptholders at a
meeting held as provided in this Article 8 may also be taken and exercised by an instrument in
writing signed in one or more counterparts by one or more Receiptholders in person or by attorney
duly appointed in writing, holding at least 662/3% of the then outstanding Subscription Receipts with
respect to a special resolution, and the expression “special resolution” when used in this
Agreement shall include an instrument so signed by Receiptholders holding at least 662/3% of the then
outstanding Subscription Receipts.





	8.15	 	Binding Effect of Resolutions




Every resolution and every special resolution passed in accordance with the provisions of this
Article 8 at a meeting of Receiptholders shall be binding upon all the Receiptholders, whether
present at or absent from such meeting, and every instrument in writing signed by Receiptholders in
accordance with Section 8.14 shall be binding upon all the Receiptholders, whether signatories
thereto or not, and each and every Receiptholder and the Subscription Receipt Agent (subject to the
provisions for indemnity herein contained) shall be bound to give effect accordingly to every such
resolution and instrument in writing.







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ARTICLE 9

SUPPLEMENTAL AGREEMENTS





	9.1	 	Provision for Supplemental Agreements for Certain Purposes




From time to time the Company, the Agents, the Subscription Receipt Agent and the U.S. Escrow Agent
may, subject to the provisions hereof and subject to regulatory approval, and they shall, when so
directed in accordance with the provisions hereof, execute and deliver by their proper officers,
agreements supplemental hereto, which thereafter shall form part hereof, for any one or more or all
of the following purposes:





	 	(a)	 	adding to the provisions hereof such additional covenants and enforcement
provisions as, in the opinion of counsel, are necessary or advisable in the premises,
provided that the same are not in the opinion of the Subscription Receipt Agent relying
on counsel, prejudicial to the interests of the Receiptholders;
	 
	 	(b)	 	giving effect to any special resolution passed as provided in Article 8;
	 
	 	(c)	 	making such provisions not inconsistent with this Agreement as may be necessary
or desirable with respect to matters or questions arising hereunder, provided that such
provisions are not, in the opinion of the Subscription Receipt Agent, relying on
counsel, prejudicial to the interests of the Receiptholders;
	 
	 	(d)	 	adding to or altering the provisions hereof in respect of the transfer of
Subscription Receipts, making provision for the exchange of Subscription Receipt
Certificates, and making any modification in the form of the Subscription Receipt
Certificates which does not affect the substance thereof;
	 
	 	(e)	 	modifying any of the provisions of this Agreement, including relieving the
Company from any of the obligations, conditions or restrictions herein contained,
provided that such modification or relief shall be or become operative or effective
only if, in the opinion of the Subscription Receipt Agent relying on counsel, such
modification or relief in no way prejudices any of the rights of the Receiptholders or
of the Subscription Receipt Agent or the U.S. Escrow Agent, and provided further that
each of the Subscription Receipt Agent and the U.S. Escrow Agent may in its sole
discretion decline to enter into any such supplemental agreement which in its opinion
may not afford adequate protection to the Subscription Receipt Agent or the U.S. Escrow
Agent, as applicable, when the same shall become operative; and
	 
	 	(f)	 	for any other purpose not inconsistent with the terms of this Agreement,
including the correction or rectification of any ambiguities, defective or inconsistent
provisions, errors, mistakes or omissions herein, provided that in the opinion of the
Subscription Receipt Agent the rights of the Subscription Receipt Agent and of the
Receiptholders are in no way prejudiced thereby.




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ARTICLE 10

CONCERNING THE SUBSCRIPTION RECEIPT AGENT AND THE U.S. ESCROW AGENT





	10.1	 	Rights and Duties






	 	(a)	 	In the exercise of the rights and duties prescribed or conferred by the terms
of this Agreement, each of the Subscription Receipt Agent and the U.S. Escrow Agent
shall exercise the degree of care, diligence and skill that a reasonably prudent
subscription receipt agent or escrow agent, as applicable, would exercise in comparable
circumstances. No provision of this Agreement shall be construed to relieve the
Subscription Receipt Agent or the U.S. Escrow Agent, as applicable, from liability for
its own grossly negligent action, willful misconduct or bad faith.
	 
	 	(b)	 	The obligation of the Subscription Receipt Agent to commence or continue any
act, action or proceeding for the purpose of enforcing any rights of the Subscription
Receipt Agent or the Receiptholders hereunder shall be conditional upon the
Receiptholders furnishing, when required by notice by the Subscription Receipt Agent,
sufficient funds to commence or to continue such act, action or proceeding and an
indemnity reasonably satisfactory to the Subscription Receipt Agent to protect and to
hold harmless the Subscription Receipt Agent against the costs, charges and expenses
and liabilities to be incurred thereby and any loss and damage it may suffer by reason
thereof. None of the provisions contained in this Agreement shall require the
Subscription Receipt Agent to expend or to risk its own funds or otherwise to incur
financial liability in the performance of any of its duties or in the exercise of any
of its rights or powers unless indemnified as aforesaid.
	 
	 	(c)	 	The Subscription Receipt Agent may, before commencing or at any time during the
continuance of any such act, action or proceeding, require the Receiptholders at whose
instance it is acting to deposit with the Subscription Receipt Agent, the Subscription
Receipts held by them, for which Subscription Receipts the Subscription Receipt Agent
shall issue receipts.
	 
	 	(d)	 	Every provision of this Agreement that by its terms relieves each of the
Subscription Receipt Agent and the U.S. Escrow Agent of liability or entitles it to
rely upon any evidence submitted to it is subject to the provisions of this Section
10.1.
	 
	 	(e)	 	Neither the Subscription Receipt Agent or the U.S. Escrow Agent shall have any
duties except those expressly set forth herein, and it shall not be bound by any notice
of a claim or demand with respect to, or any waiver, modification, amendment,
termination or rescission of, this Agreement, unless received by it in writing and
signed by the other parties hereto and, if its duties herein are affected, unless it
shall have given its prior written consent thereto.




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	 	(f)	 	Neither the Subscription Receipt Agent nor the U.S. Escrow Agent shall be
responsible for ensuring that the Proceeds, as applicable, are used in the manner
contemplated by the Agency Agreement.
	 
	 	(g)	 	Each of the Subscription Receipt Agent and the U.S. Escrow Agent shall retain
the right not to act and shall not be held liable for refusing to act unless it has
received clear and reasonable documentation which complies with the terms of this
Agreement, which documentation does not require the exercise of any discretion or
independent judgment.
	 
	 	(h)	 	Neither the Subscription Receipt Agent nor the U.S. Escrow Agent shall incur
any liability whatsoever with respect to the delivery or non-delivery of any
certificates whether delivered by hand, mail or any other means.
	 
	 	(i)	 	Neither the Subscription Receipt Agent nor the U.S. Escrow Agent shall be
responsible or liable in any manner whatsoever for the deficiency, correctness,
genuineness or validity of any securities deposited with it.






	10.2	 	Documents, etc. Held




Any securities, documents of title or other instruments that may at any time be held by the
Subscription Receipt Agent or the U.S. Escrow Agent pursuant to this Agreement may be placed in the
deposit vaults of the Subscription Receipt Agent or the U.S. Escrow Agent, as applicable, or of any
Canadian or U.S. chartered bank or deposited for safekeeping with any such bank. If the
Subscription Receipt Agent or the U.S. Escrow Agent, as applicable, has not received a direction
under Section 6.1, any monies so held pending the application or withdrawal thereof under any
provisions of this Agreement may be deposited in the name of such agent in any Canadian or U.S.
chartered bank, as applicable, or in the deposit department of such agent or any other loan or
trust company authorized to accept deposits under the laws of Canada or a province thereof or the
laws of the U.S. or a state thereof, as applicable, at the rate of interest (if any) then current
on similar deposits.





	10.3	 	Actions to Protect Interest






	 	(a)	 	The Subscription Receipt Agent shall have the power to institute and to
maintain such actions and proceedings as it may consider necessary or expedient to
preserve, protect or enforce its interests and the interests of the Receiptholders.
	 
	 	(b)	 	The U.S. Escrow Agent shall have the power to institute and to maintain such
actions and proceedings, as it may consider necessary or expedient to preserve, protect
or enforce its interests.






	10.4	 	Not Required to Give Security




Neither the Subscription Receipt Agent nor the U.S. Escrow Agent shall be required to give any bond
or security in respect of the execution of this Agreement or otherwise in respect of the premises.






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	10.5	 	Protection




By way of supplement to the provisions of any law for the time being relating to trustees, it is
expressly declared and agreed as follows:





	 	(a)	 	neither the Subscription Receipt Agent nor the U.S. Escrow Agent shall be
liable for or by reason of any statements of fact or recitals in this Agreement or in
the Subscription Receipt Certificates (except the representation contained in Section
10.7 or in the certificate of the Subscription Receipt Agent on the Subscription
Receipt Certificates) or be required to verify the same, but all such statements or
recitals are and shall be deemed to be made by the Company;
	 
	 	(b)	 	nothing herein contained shall impose any obligation on the Subscription
Receipt Agent or the U.S. Escrow Agent to see to or to require evidence of the
registration or filing (or renewal thereof) of this Agreement or any instrument
ancillary or supplemental hereto;
	 
	 	(c)	 	neither the Subscription Receipt Agent nor the U.S. Escrow Agent shall be bound
to give notice to any person or persons of the execution hereof;
	 
	 	(d)	 	neither the Subscription Receipt Agent nor the U.S. Escrow Agent shall incur
any liability or responsibility whatever or be in any way responsible for the
consequence of any breach on the part of the Company of any of the covenants herein
contained or of any acts of any officers, employees, agents or servants of the Company;
	 
	 	(e)	 	the Company shall indemnify and save harmless the Subscription Receipt Agent
and the U.S. Escrow Agent and their respective officers, directors, employees and
agents from and against any and all liabilities, losses, costs, claims, actions or
demands whatsoever brought against such agent which it may suffer or incur as a result
of or arising out of the performance of its duties and obligations under this
Agreement, including any and all legal fees and disbursements of whatever kind or
nature, save only in the event of the grossly negligent action or the willful
misconduct or bad faith of the Subscription Receipt Agent or the U.S. Escrow Agent, as
applicable. It is understood and agreed that this indemnification shall survive the
termination or discharge of this Agreement or the resignation or removal of the
Subscription Receipt Agent or the U.S. Escrow Agent;
	 
	 	(f)	 	the Subscription Receipt Agent and the U.S. Escrow Agent shall be fully
protected in acting and relying on any document, certificate, statement, instrument,
opinion, report or notice, believed by it to be genuine and to have been signed, sent
by or on behalf of the proper party or parties or delivered to it pursuant to this
Agreement as to its due execution, validity and effectiveness and as to the truth and
accuracy of any information contained therein; and
	 
	 	(g)	 	the Subscription Receipt Agent and the U.S. Escrow Agent shall not be bound to
do or give any notice or take any act, action, proceeding for the enforcement of any of
the obligations of the Company under this Agreement unless and until it




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	 	 	 	shall have received a Receiptholders’ Request specifying the act, action or
proceeding which the Subscription Receipt Agent or the U.S. Escrow Agent is
requested to take, nor shall the Subscription Receipt Agent or the U.S. Escrow Agent
be required to take notice of any default hereunder, unless and until notified in
writing of such default, which notice shall distinctly specify the default desired
to be brought to the attention of the Subscription Receipt Agent or the U.S. Escrow
Agent and in the absence of any such notice, the Subscription Receipt Agent and the
U.S. Escrow Agent may for all purposes of this Agreement conclusively assume that no
default has been made in the observance or performance of any of the
representations, warranties, covenants, agreements, or conditions contained herein.






	10.6	 	Replacement; Successor by Acquisition






	 	(a)	 	Each of the Subscription Receipt Agent and the U.S. Escrow Agent may resign its
appointment and be discharged from all other duties and liabilities hereunder, subject
to this Section 10.6, by giving to the Company not less than 30 days prior notice in
writing or such shorter prior notice as the Company may accept as sufficient. The
Receiptholders by special resolution shall have power at any time to remove the
existing Subscription Receipt Agent or the U.S. Escrow Agent and to appoint a new
subscription receipt or escrow agent. In the event of the Subscription Receipt Agent or
the U.S. Escrow Agent, as applicable, resigning or being removed as aforesaid or being
dissolved, becoming bankrupt, going into liquidation or otherwise becoming incapable of
acting hereunder, the Agents shall forthwith appoint a new subscription receipt or
escrow agent unless a new subscription receipt or escrow agent has already been
appointed by the Receiptholders; but any new subscription receipt or escrow agent so
appointed by the Agents or by the court shall be subject to removal as aforesaid by the
Receiptholders. Any new subscription receipt agent appointed under any provision of
this Section 10.6 shall be a corporation authorized to carry on the business of a trust
company in the Province of Ontario and, if required by the applicable legislation for
any other provinces, in such other provinces. Any new escrow agent appointed under any
provision of this Section 10.6 shall be a corporation authorized to carry on the
business of a trust company in the United States (or a state thereof) or in the
Province of Ontario and, if required by the applicable legislation for any other
provinces, in such other provinces. On any such appointment the new subscription
receipt or escrow agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named herein as Subscription Receipt
Agent or the U.S. Escrow Agent hereunder. At the request of the Company or the new
subscription receipt or escrow agent, the retiring Subscription Receipt Agent or U.S.
Escrow Agent shall duly assign, transfer and deliver to the new subscription receipt or
escrow agent all property and money held and all records kept by the retiring
Subscription Receipt Agent or U.S. Escrow Agent hereunder or in connection herewith.




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	 	(b)	 	Upon the appointment of a successor subscription receipt or escrow agent, the
Company shall promptly notify the Receiptholders thereof in the manner provided for in
Article 11 hereof.
	 
	 	(c)	 	Any corporation into or with which the Subscription Receipt Agent or the U.S.
Escrow Agent may be merged or consolidated or amalgamated, or any corporation resulting
therefrom to which the Subscription Receipt Agent or the U.S. Escrow Agent shall be a
party, or any corporation succeeding to the corporate trust business of the
Subscription Receipt Agent or the U.S. Escrow Agent shall be the successor to the
Subscription Receipt Agent or the U.S. Escrow Agent hereunder without any further act
on its part or any of the parties hereto, provided that such corporation would be
eligible for appointment as a successor subscription receipt or escrow agent under
Section 10.6(a).
	 
	 	(d)	 	Any Subscription Receipt Certificate certified but not delivered by a
predecessor Subscription Receipt Agent may be delivered by the successor subscription
receipt agent in the name of the predecessor or successor Subscription Receipt Agent.






	10.7	 	Conflict of Interest






	 	(a)	 	Each of the Subscription Receipt Agent and the U.S. Escrow Agent represents to
the Company and the Agents that at the time of execution and delivery hereof no
material conflict of interest exists between its role as a subscription receipt or
escrow agent, as applicable, hereunder and its role in any other capacity and agrees
that in the event of a material conflict of interest arising hereafter it will, within
30 days after ascertaining that it has such material conflict of interest, either
eliminate the same or assign its appointment as Subscription Receipt Agent or U.S.
Escrow Agent, as applicable, hereunder to a successor subscription receipt or escrow
agent, as applicable, approved by the Company and meeting the requirements set forth in
Section 10.6(a). Notwithstanding the foregoing provisions of this Section 10.7(a), if
any such material conflict of interest exists or hereafter shall exist, the validity
and enforceability of this Agreement and the Subscription Receipts shall not be
affected in any manner whatsoever by reason thereof.
	 
	 	(b)	 	Subject to Section 10.7(a), each of the Subscription Receipt Agent and the U.S.
Escrow Agent, in its personal or any other capacity, may buy, lend upon and deal in
securities of the Company and generally may contract and enter into financial
transactions with the Company or any affiliated entity of the Company without being
liable to account for any profit made thereby.






	10.8	 	Acceptance of Appointment






	 	(a)	 	The Subscription Receipt Agent hereby accepts the appointment as subscription
receipt agent in this Agreement and agrees to perform its duties hereunder upon the
terms and conditions herein set forth.




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	 	(b)	 	The U.S. Escrow Agent hereby accepts the appointment as U.S. escrow agent in
this Agreement and agrees to perform its duties hereunder upon the terms and conditions
herein set forth.






	10.9	 	Not to be Appointed Receiver




None of the Subscription Receipt Agent, the U.S. Escrow Agent or any person related to either agent
shall be appointed a receiver, a receiver and manager or liquidator of all or any part of the
assets or undertaking of the Company.





	10.10	 	Anti-Money Laundering and Privacy




Each of the Subscription Receipt Agent and the U.S. Escrow Agent shall retain the right not to act
and shall not be liable for refusing to act if, due to a lack of information or for any other
reason whatsoever, such agent, in its sole judgment, acting reasonably, determines that such act
might cause it to be in non-compliance with any applicable anti-money laundering or anti-terrorist
legislation, regulation or guideline. Further, should the Subscription Receipt Agent or the U.S.
Escrow Agent, in its sole judgment, acting reasonably, determine at any time that its acting under
this Agreement has resulted in its being in non-compliance with any applicable anti-money
laundering or anti-terrorist legislation, regulation or guideline, then it shall have the right to
resign on 10 days prior written notice sent to all parties provided that (a) the Subscription
Receipt Agent’s or the U.S. Escrow Agent’s written notice shall describe the circumstances of such
non-compliance; and (b) that if such circumstances are rectified to the Subscription Receipt
Agent’s or the U.S. Escrow Agent’s satisfaction, acting reasonably, within such 10 day period, then
such resignation shall not be effective.



The parties acknowledge that each of the Subscription Receipt Agent and the U.S. Escrow Agent may,
in the course of providing services hereunder, collect or receive financial and other personal
information about such parties and/or their representatives, as individuals, or about other
individuals related to the subject matter hereof, and may use such information for the following
purposes:





	 	(a)	 	to provide the services required under this Agreement and other services that
may be requested from time to time;
	 
	 	(b)	 	to help such agent manage its servicing relationships with such individuals;
and
	 
	 	(c)	 	to meet such agent’s legal and regulatory requirements;




Each party acknowledges and agrees that each of the Subscription Receipt Agent and the U.S. Escrow
Agent may receive, collect, use and disclose personal information provided to it or acquired by it
in the course of this Agreement for the purposes described above and, generally, in the manner and
on the terms described in its privacy code, which such agent shall make available on its website or
upon request, including revisions thereto. Further, each party agrees that it shall not provide or
cause to be provided to the Subscription Receipt Agent or the U.S. Escrow Agent any personal
information relating to an individual who is not a party to this Agreement unless that party has
assured itself that such individual understands and has consented to the aforementioned uses and
disclosures.






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The Company and Broadband hereby severally represent and warrant to the U.S. Escrow Agent that
reasonable controls have been established and required due diligence performed to comply with the
“Know Your Customer” regulations, the USA Patriot Act, the Office of Foreign Asset Control (OFAC)
regulations and the Bank Secrecy Act.




ARTICLE 11

GENERAL





	11.1	 	Notice






	 	(a)	 	Unless herein otherwise expressly provided, any notice to be given hereunder to
the Company, the Agents, the Subscription Receipt Agent or the U.S. Escrow Agent shall
be deemed to be validly given if delivered by hand courier or if transmitted by
facsimile:






	 	(i)	 	if to the Company:
	 
	 	 	 	Swisher Hygiene Inc.
	 	 	 	4725 Piedmont Row Drive, Suite 400
	 	 	 	Charlotte, North Carolina 28210
	 	 	 	U.S.A.
	 
	 	 	 	Attention: Tom Aucamp
	 	 	 	Facsimile: (704) 602-7970






with a copy to (which does not constitute notice):




	 	 	 	Osler, Hoskin & Harcourt LLP
	 	 	 	1 First Canadian Place
	 	 	 	Box 50
	 	 	 	Toronto, Ontario M5X 1B8
	 
	 	 	 	Attention: David Hanick
	 	 	 	Facsimile: (416) 862-6666
	 
	 	(ii)	 	if to the Agents:
	 
	 	 	 	Clarus Securities Inc.
	 	 	 	Suite 1615, Waterfront Centre
	 	 	 	200 Burrard Street
	 	 	 	Vancouver, British Columbia V6C 3L6
	 
	 	 	 	Attention: Rod Campbell
	 	 	 	Facsimile: (604) 605-5704






and to:








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	 	 	 	Broadband Capital Management LLC
	 	 	 	712 5th Avenue
	 	 	 	22nd Floor
	 	 	 	New York, New York 10019
	 
	 	 	 	Attention: Erika Duckett
	 	 	 	Facsimile: (212) 702-9830
	 
	 	(iii)	 	if to the Subscription Receipt Agent:
	 
	 	 	 	Equity Financial Trust Company
	 	 	 	200 University Avenue, Suite 400
	 	 	 	Toronto, Ontario M5H 4H1
	 
	 	 	 	Attention: Manager, Corporate Trust Services
	 	 	 	Facsimile: (416) 361-0470
	 
	 	(iv)	 	if to the U.S. Escrow Agent:
	 
	 	 	 	Continental Stock Transfer & Trust Co.
	 	 	 	17 Battery Place, 8th Floor
	 	 	 	New York, NY 10004
	 	 	 	U.S.A.
	 
	 	 	 	Attention: Accounting Department
	 	 	 	Facsimile: (212) 845-3220






	 	 	 	and any such notice delivered in accordance with the foregoing shall be deemed to
have been received on the date of delivery or, if transmitted by facsimile on the
day of confirmation of transmission by the originating facsimile or, if such day is
not a Business Day, on the first Business Day following the day of transmission.
Accidental error or omission in giving notice or accidental failure to mail notice
to any Receiptholder will not invalidate any action or proceeding founded thereon.
	 
	 	(b)	 	The Company, either of the Agents, the Subscription Receipt Agent or the U.S.
Escrow Agent, as the case may be, may from time to time notify the other parties to
this Agreement in the manner provided in Section 11.1(a) of a change of address which,
from the effective date of such notice and until changed by like notice, shall be the
address of the Company, the Agents, the Subscription Receipt Agent or the U.S. Escrow
Agent, as the case may be, for all purposes of this Agreement.






	11.2	 	Notice to Receiptholders






	 	(a)	 	Any notice to the Receiptholders under the provisions of this Agreement shall
be valid and effective if delivered or sent by letter or circular through the ordinary
post addressed to such holders at their post office addresses appearing on the




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	 	 	 	register hereinbefore mentioned and shall be deemed to have been effectively given
on the date of delivery or, if mailed, five Business Days following actual posting
of the notice.
	 
	 	(b)	 	If, by reason of a strike, lockout or other work stoppage, actual or
threatened, involving postal employees, any notice to be given to the Receiptholders
hereunder could reasonably be considered unlikely to reach its destination, such notice
shall be valid and effective only if it is delivered personally to such Receiptholders
or if delivered to the address for such Receiptholders contained in the register of
Subscription Receipts maintained by the Subscription Receipt Agent.
	 
	 	(c)	 	All notices to joint holders of any Subscription Receipt may be given to
whichever one of the holders thereof is named first in the appropriate register
hereinbefore mentioned, and any notice so given shall be sufficient notice to all such
joint holders of the Subscription Receipt.






	11.3	 	Ownership of Subscription Receipts




The Company, the Subscription Receipt Agent and the U.S. Escrow Agent may deem and treat the
registered owner of any Subscription Receipt Certificate or, in the case of a transferee who has
surrendered a Subscription Receipt Certificate in accordance with the terms of this Agreement, such
transferee, as the absolute owner of the Subscription Receipt represented thereby for all purposes,
and the Company, the Subscription Receipt Agent and the U.S. Escrow Agent shall not be affected by
any notice or knowledge to the contrary except where the Company, the Subscription Receipt Agent or
the U.S. Escrow Agent is required to take notice by statute or by order of a court of competent
jurisdiction. A Receiptholder shall be entitled to the rights evidenced by such Subscription
Receipt Certificate free from all equities or rights of set off or counterclaim between the Company
and the original or any intermediate holder thereof and all persons may act accordingly and the
receipt of any such Receiptholder for the Underlying Common Shares which may be acquired pursuant
thereto shall be a good discharge to the Company and the Subscription Receipt Agent for the same
and neither the Company nor the Subscription Receipt Agent shall be bound to inquire into the title
of any such holder except where the Company or the Subscription Receipt Agent is required to take
notice by statute or by order of a court of competent jurisdiction.





	11.4	 	Proof of Execution of Instruments






	 	(a)	 	The Company, the Subscription Receipt Agent may accept as sufficient evidence
of the fact and date of the signing of any requisition, direction, consent, instrument
or other document by any person (i) the signature of any officer of any bank, trust
company, or other depositary satisfactory to the Subscription Receipt Agent as witness
of such execution, (ii) the certificate of any notary public or other officer
authorized to take acknowledgements of deeds to be recorded at the place where such
certificate is made that the person signing acknowledged to him the execution thereof,
or (iii) a statutory declaration of a witness of such execution, and in respect of a
corporate Receiptholder shall include a certificate of




-43-









 






	 	 	 	incumbency together with a certified resolution authorizing the person who signed
such instrument to sign such instrument.






	11.5	 	Satisfaction and Discharge of Agreement




Upon the earliest of: (a) the issuance of share certificates evidencing Underlying Common Shares to
all holders of Subscription Receipts and payment of all monies required to be paid to all holders
of Subscription Receipts as provided in Section 3.3(a) or 3.4 and the payment of monies required to
be paid to the Company pursuant to Section 3.2(a), 3.2(b) or (c) the payment of all monies required
where Termination occurs as provided in Section 3.5(c), this Agreement shall cease to be of further
effect and the Subscription Receipt Agent and the U.S. Escrow Agent, on demand of and at the cost
and expense of the Company and upon delivery to the Subscription Receipt Agent and the U.S. Escrow
Agent of a certificate of the Company stating that all conditions precedent to the satisfaction and
discharge of this Agreement have been complied with, shall execute proper instruments acknowledging
satisfaction of and discharging this Agreement. Notwithstanding the foregoing, the indemnities
provided to the Subscription Receipt Agent and the U.S. Escrow Agent by the Company hereunder shall
remain in full force and effect and survive the termination of this Agreement.





	11.6	 	Provisions of Agreement and Subscription Receipts for the Sole Benefit of Parties and
Receiptholders




Nothing in this Agreement or in the Subscription Receipt Certificates, expressed or implied, shall
give or be construed to give to any person other than the parties hereto, the Receiptholders and
the transferees of Subscription Receipts as contemplated in Sections 2.14, 3.3 and 3.5 as the case
may be, any legal or equitable right, remedy or claim under this Agreement, or under any covenant
or provision herein or therein contained, all such covenants and provisions being for the sole
benefit of the parties hereto, the Receiptholders and such transferees.





	11.7	 	Effect of Execution




Notwithstanding any provision of this Agreement, should any Subscription Receipt Certificates be
issued and certified in accordance with the terms hereof prior to the actual time of execution of
this Agreement by the Company and the Subscription Receipt Agent, any such Subscription Receipt
Certificates shall be void and of no value and effect until such actual execution.





	11.8	 	Time of Essence




Time is and shall remain of the essence of this Agreement.





	11.9	 	Counterparts




This Agreement may be executed and delivered in counterparts, each of which when so executed and
delivered shall be deemed to be an original and such counterparts together shall constitute one and
the same instrument and notwithstanding their date of execution they shall be deemed to be dated as
of the date hereof.




[Remainder of this page intentionally left blank]





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IN WITNESS WHEREOF the parties hereto have executed this Agreement as of this 23 day of February,
2011.




	 	 	 	 	 
	 	



SWISHER HYGIENE INC.

 	 
	 	By:  	/s/ Thomas Aucamp
 	 



	 	 	 	 	 
	 	
CLARUS SECURITIES INC.

 	 
	 	By:  	/s/ Rod Campbell
 	 



	 	 	 	 	 
	 	

BROADBAND CAPITAL MANAGEMENT LLC

 	 
	 	By:  	/s/ Philip Wagenheim
 	 



	 	 	 	 	 
	 	

TD SECURITIES INC.

 	 
	 	By:  	/s/ Roman Gula
 	 



	 	 	 	 	 
	 	

EQUITY FINANCIAL TRUST COMPANY

 	 
	 	By:  	/s/ Carol Mikos
 	 
	 	 	 
	 	 	 	 
	 	By:  	   /s/ Derrice Richards
 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CONTINENTAL STOCK TRANSFER & TRUST CO.

 	 
	 	By:  	/s/ Frank A. DiPaolo
 	 
	 	 	 	 
	 	 	 	 



-2-









 






	 	 	 	 	 



SCHEDULE “A”

FORM OF SUBSCRIPTION RECEIPT CERTIFICATE




THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY
PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE COMPANY THAT SUCH SECURITIES MAY BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY: (A) TO THE COMPANY, (B) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE U.S. SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN
ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT IF AVAILABLE, (D) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE 144, IF AVAILABLE,
AND IN COMPLIANCE WITH ANY STATE SECURITIES LAWS, OR (E) WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY, PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS; PROVIDED THAT, IN CONNECTION WITH A TRANSFER PURSUANT TO (C), (D)
OR (E) ABOVE, AN OPINION OF COUNSEL, OF RECOGNIZED STANDING REASONABLY SATISFACTORY TO THE COMPANY
HAS BEEN PROVIDED TO THE COMPANY TO SUCH EFFECT.



UNLESS PERMITTED UNDER SECURITIES LEGISLATION AND CONSENTED TO BY SWISHER HYGIENE INC. AND CLARUS
SECURITIES INC., THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE JUNE 24, 2011.




SWISHER HYGIENE INC.

(A corporation incorporated under and

governed by the laws of Delaware)




	 	 	 

	Number: _________

	 	______________ Subscription Receipts






THIS IS TO CERTIFY THAT



(the “holder”) is the registered holder of ______________ Subscription Receipts represented
hereby.



The Subscription Receipts represented by this Subscription Receipt certificate (the “Certificate”)
are issued pursuant to a Subscription Receipt Agreement (the “Agreement”) dated February 23, 2011
between Swisher Hygiene Inc. (the “Company”), Clarus Securities Inc., Broadband Capital Management
LLC and TD Securities Inc., as agents, Equity Financial Trust Company, as the subscription receipt
agent (the “Subscription Receipt Agent”) and Continental Stock Transfer & Trust Co., as the U.S.
escrow agent.







A-1









 







Capitalized terms used in the Agreement have the same meaning herein as in the Agreement, unless
otherwise defined.



Subject to Section 2.3 of the Agreement, each Subscription Receipt entitles the holder to receive
on the Acquisition Closing Date, in accordance with the terms of, and subject to, the Agreement to
automatically receive, without the payment of any additional consideration, one Common Share for
each Subscription Receipt (subject to adjustments in certain circumstances as herein provided) held
by the Receiptholder. Until such time as the Proceeds have been delivered in accordance with
Section 2.2(a) or (b) of the Agreement, this Subscription Receipt Certificate will be of no force
or effect and may be cancelled by the Company at any time without recourse or liability to the
holder.



The Subscription Receipts represented hereby are issued under and pursuant to the Agreement.
Reference is hereby made to the Agreement and any and all other instruments supplemental or
ancillary thereto for a full description of the rights of the holders of the Subscription Receipts
and the terms and conditions upon which such Subscription Receipts are, or are to be, issued and
held, all to the same effect as if the provisions of the Agreement and all instruments supplemental
or ancillary thereto were herein set forth, and to all of which provisions the holder of these
Subscription Receipts by acceptance hereof assents. In the event of a conflict or inconsistency
between the terms of the Agreement and this Certificate, the terms of the Agreement shall prevail.



The holding of the Subscription Receipts evidenced by this Certificate shall not constitute the
holder hereof a Shareholder or entitle such holder to any right or interest in respect thereof
except as herein and in the Agreement expressly provided.



The Agreement contains provisions making binding upon all holders of Subscription Receipts
outstanding thereunder resolutions passed at meetings of such holders held in accordance with such
provisions and by instruments in writing signed by the holders of a specified majority of the
outstanding Subscription Receipts.



The Subscription Receipts evidenced by this Certificate may be transferred on the register kept at
the offices of the Subscription Receipt Agent by the registered holder hereof or his legal
representatives or his attorney duly appointed by an instrument in writing in form and execution
satisfactory to the Subscription Receipt Agent, only upon payment of the charges provided for in
the Agreement and upon compliance with such reasonable requirements as the Subscription Receipt
Agent may prescribe (including compliance with the legends hereon). The transfer register shall be
closed effective as of the Acquisition Closing Time or 5:00 p.m. (Toronto time) on the Termination
Date.



This Certificate shall not be valid for any purpose whatever unless and until it has been
countersigned by or on behalf of the Subscription Receipt Agent.



After the Termination Time, this Certificate and all rights hereunder, other than the right to
receive the Proceeds (plus pro rata interest thereon) will be void and of no further value or
effect.








A-2









 







Time shall be of the essence hereof. This Certificate is governed by the laws of the Province of
Ontario and the laws of Canada applicable therein.



IN WITNESS WHEREOF the Company has caused this Certificate to be signed by a duly authorized
representative as of February 23, 2011.




	 	 	 	 	 
	 	SWISHER HYGIENE INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	
EQUITY FINANCIAL TRUST COMPANY

as Subscription Receipt Agent

 	 
	 	By:  	
 	 
	 	 	Authorized Signatory 	 
	 		
 	 
	 	Date of Countersigned:                                           
	 	 



A-3









 






	 	 	 	 	 



SCHEDULE “B”




FORM OF NOTICE



	 	 	 

	TO:

	 	EQUITY FINANCIAL TRUST COMPANY (the “Subscription Receipt Agent”)


	 

	 	CONTINENTAL STOCK TRANSFER & TRUST CO. (the “U.S. Escrow Agent”)





 




Reference is made to the Subscription Receipt Agreement made as of February 23, 2011 among the
undersigned, the Subscription Receipt Agent and the U.S. Escrow Agent (capitalized terms used
herein without definition having the meanings specified therein).



In accordance with the provisions of the Subscription Receipt Agreement, we are writing to advise
you that the closing of the Acquisition has occurred on or before the Termination Time.



The Subscription Receipt Agent, in its capacity as the Canadian escrow agent, is hereby irrevocably
directed to pay, promptly after the Acquisition Closing Time, from the Canadian Escrowed Funds to
Clarus, an amount equal to $l. Further, the Subscription Receipt Agent is hereby irrevocably
directed to pay on the Special Payment Date from the Canadian Escrowed Funds to the Canadian and
non-U.S. resident holders, an amount equal to $l. The Subscription Receipt Agent shall pay
$l to the Company.



The U.S. Escrow Agent is hereby irrevocably directed to pay on the Special Payment Date from the
U.S. Escrowed Funds to the U.S. resident holders, an amount equal to $l. The U.S. Escrow
Agent shall pay $l to the Company.



The Subscription Receipt Agent, in its capacity as the registrar and transfer agent of the Common
Shares, is hereby irrevocably directed and authorized to issue and deliver on behalf of the
Company, certificates representing l Common Shares to the persons to whom such Common Shares
are to be issued pursuant to the Agreement and the treasury order attached hereto as Appendix “1”,
effective as at the Acquisition Closing Time, which is l, 2011, all as provided in Section
3.3 of the Agreement. The Common Shares shall be deemed to be issued at the Acquisition Closing
Time notwithstanding that certificates evidencing such Common Shares have not been issued. We
hereby confirm that the allotment and issue of these Common Shares has been duly authorized by all
necessary action.




[Remainder of page intentionally left blank.]






B-1









 







The foregoing direction is irrevocable and shall constitute your good and sufficient authority for
issuing the Common Shares as directed above.



DATED the                  day of                                     , 2011.




	 	 	 	 	 
	 	SWISHER HYGIENE INC.

 	 
	 	By:  	
 	 
	 



	 	 	 	 	 
	 	CLARUS SECURITIES INC.

 	 
	 	By:  	
 	 
	 



	 	 	 	 	 
	 	BROADBAND CAPITAL MANAGEMENT LLC

 	 
	 	By:  	
 	 
	 



	 	 	 	 	 
	 	TD SECURITIES INC.

 	 
	 	By:  	
 	 



B-2









 






	 	 	 	 	 



Appendix “1”




TREASURY ORDER 
 (Private Placement Shares)


____________ ____, 2011




EQUITY FINANCIAL TRUST COMPANY



l



The undersigned hereby authorizes and irrevocably directs Equity Financial Trust Company to issue,
register and countersign certificates in definitive form for fully paid and non-assessable common
shares (the “Shares”) in the capital of Swisher Hygiene Inc. (the “Company”) to the persons and for
the number of common shares set out opposite their name in Schedule “A” attached hereto.



You are further authorized and directed to affix on the Shares the legends as set out on Schedule
“B” attached hereto.



Upon issuance, the undersigned confirms that the Company will have received full consideration for
the Shares and the Shares will have been issued as fully paid and non-assessable common shares to
the persons or entities named. These Shares are being issued as previously unissued securities of
the Company pursuant to exemptions from the registration and prospectus requirements of the
Securities Act (Ontario) and have been attributed an issue price of CDN$l per share.
Pursuant to a letter dated February l, 2011, the Toronto Stock Exchange conditionally
accepted the application to issue the Shares.




	 	 	 	 	 
	SWISHER HYGIENE INC.

 	 	 
	Per:  	
 	 
	 	Director 	 	 
	 
	 	 	 
	Per:  	
 	 	 
	 	Senior Executive Officer 	 	 



B-3









 






	 	 	 	 	 



SCHEDULE “C”




LEGENDS


The following legend shall be affixed to the certificates of all of the Underlying Common Shares:





	 	 	 	THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR ANY STATE SECURITIES LAWS.
THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE COMPANY THAT
SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY: (A) TO THE
COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE U.S. SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE U.S.
SECURITIES ACT IF AVAILABLE, (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE U.S.
SECURITIES ACT PROVIDED BY RULE 144, IF AVAILABLE, AND IN COMPLIANCE WITH ANY STATE
SECURITIES LAWS, OR (E) WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY, PURSUANT TO ANOTHER
EXEMPTION FROM REGISTRATION UNDER THE U.S. SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS; PROVIDED THAT, IN CONNECTION WITH A TRANSFER PURSUANT TO (C), (D) OR (E)
ABOVE, AN OPINION OF COUNSEL, OF RECOGNIZED STANDING REASONABLY SATISFACTORY TO THE COMPANY
HAS BEEN PROVIDED TO THE COMPANY TO SUCH EFFECT.




The following legends shall be affixed to the certificates of all of the Underlying
Common Shares if issued prior to the date that is before June 24, 2011:





	 	 	 	THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE LISTED ON THE TORONTO STOCK EXCHANGE
(“TSX”); HOWEVER, THE SAID SECURITIES CANNOT BE TRADED THROUGH THE FACILITIES OF THE TSX
SINCE THEY ARE NOT FREELY TRANSFERABLE, AND CONSEQUENTLY ANY CERTIFICATE REPRESENTING SUCH
SECURITIES IS NOT “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON THE TSX.






	 	 	 	UNLESS PERMITTED UNDER SECURITIES LEGISLATION AND CONSENTED TO BY SWISHER HYGIENE INC. AND
CLARUS SECURITIES INC., THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE JUNE
24, 2011.






C-1