Edesa Biotech, Inc. Common Shares, without par value, Having an Aggregate Offering Price of up to $9,200,000 USD EQUITY DISTRIBUTION AGREEMENT
Exhibit 1.1
Common
Shares, without par
value,
Having an Aggregate Offering Price of up to $9,200,000
USD
September
28, 2020
RBC
Capital Markets, LLC
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Attention:
Equity Capital Markets
Ladies
and Gentlemen:
Edesa
Biotech, Inc., a company incorporated pursuant to the laws of the
Province of British Columbia, Canada (the “Company”), confirms this agreement
(this “Agreement”) with RBC Capital
Markets, LLC (the “Manager”) as follows:
SECTION
1: Description of
Shares. The Company may, from
time to time during the term of this Agreement, issue and sell
through or to the Manager, as sales agent and/or principal, common
shares of the Company, without par value, having an aggregate
offering price of up to $9,200,000 USD (the
“Shares”) on the terms and subject to the
conditions set forth herein. The common shares, without par value,
of the Company to be outstanding after giving effect to the sales
contemplated hereby are hereinafter referred to as the
“Common
Shares”. The Company
agrees that, whenever the Company determines to sell Shares
directly to the Manager as principal, it will enter into a separate
agreement (each, a “Terms
Agreement”), in form and
substance mutually satisfactory to the Company and the Manager,
relating to such sale in accordance with Section 3
hereof.
The
Company has filed not earlier than three years prior to the date
hereof (the “Execution
Date”), in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively, the “Act”), with the Securities and
Exchange Commission (the “Commission”), a registration
statement (File No. 333-233567) on Form S-3, including a Base
Prospectus (as defined below), which specifically relates to Shares
which may be issued from time to time by the Company, and which
incorporates by reference documents that the Company has filed or
will file in accordance with the provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the “Exchange Act”). The Company has
prepared a Prospectus Supplement (as defined below) to the Base
Prospectus which specifically relates to the Shares. Except where
the context otherwise requires, “Registration Statement,” as used
herein, means the registration statement, including the Base
Prospectus, as amended at the time of such registration
statement’s effectiveness or deemed effectiveness for
purposes of Section 11 of the Act, as such section applies to the
Manager, including (1) all documents filed as a part thereof or
incorporated or deemed to be incorporated by reference therein, and
(2) any information contained or incorporated by reference in a
prospectus filed with the Commission pursuant to Rule 424(b) under
the Act, to the extent such information is deemed, pursuant to Rule
430B or Rule 430C under the Act, to be part of the registration
statement at the time of such registration statement’s
effectiveness or deemed effectiveness for purposes of Section 11 of
the Act, as such section applies to the Manager. Except where the
context otherwise requires, “Base Prospectus,” as used herein,
means the prospectus filed as part of the Registration Statement,
together with any amendments or supplements thereto as of the date
of this Agreement. Except where the context otherwise requires,
“Prospectus
Supplement,” as used herein, means the final
prospectus supplement relating to the Shares, filed by the Company
with the Commission pursuant to Rule 424(b) under the Act in
connection with the offering of the Shares. Except where the
context otherwise requires, “Prospectus,” as used herein, means
the Prospectus Supplement together with the Base Prospectus.
“Permitted Free
Writing Prospectuses,” as used herein,
means the documents listed on Schedule A hereto. Any
reference herein to the Registration Statement, the Base
Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the documents incorporated or deemed
to be incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Act as of the date of such document (the
“Incorporated
Documents”). Any reference herein to the terms
“amend,”
“amendment” or
“supplement”
with respect to the Registration Statement, the Base Prospectus,
the Prospectus Supplement, the Prospectus or any Permitted Free
Writing Prospectus shall be deemed to refer to and include the
filing on or after the initial effective date of the Registration
Statement, or the date of the Base Prospectus, the Prospectus
Supplement, the Prospectus or any Permitted Free Writing
Prospectus, as the case may be, of any document with the Commission
deemed to be incorporated by reference therein. For purposes of
this Agreement, all references to the Registration Statement, the
Prospectus or to any amendment or supplement thereto shall be
deemed to include any copy filed with the Commission pursuant to
the Electronic Data Gathering Analysis and Retrieval System.
“Execution Time” shall mean the date and time that this
Agreement is executed and delivered by the parties
hereto.
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SECTION
2: Representations and
Warranties of the Company. The
Company represents and warrants to, and agrees with, the Manager on
and as of (i) the Execution Time, (ii) each date on which the
Company executes and delivers a Terms Agreement, (iii) the time of
each sale of Shares pursuant to this Agreement (each, a
“Time
of Sale”), (iv) each
Settlement Date (as defined in Section 3(a)(iv)) and (v) each
Bring-Down Delivery Date (as defined in Section 4(m)) (each such
dated listed in (i) through (v), a “Representation
Date”),
that:
(a) Registration.
The Company satisfies the conditions
for the use of Form S-3 in connection with the offer and sale of
the Shares as contemplated hereby; the Registration Statement has
become effective. The Registration Statement, at the Execution
Time, and, as then amended, at each other Representation Date, and
at all times during which a prospectus is required by the Act to be
delivered (whether physically deemed to be delivered pursuant to
Rule 153 under the Act or through compliance with Rule 172 under
the Act or any similar rule) in connection with any offer or sale
of Shares, meets the requirements set forth in Rule 415(a)(1)(x)
under the Act. Copies of the Registration Statement have been
delivered by the Company to the Manager.
(b) No
Stop Order. No stop order
suspending the effectiveness of the Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, is in effect, and no proceedings for such
purpose are pending before or, to the knowledge of the Company,
threatened by the Commission. The Commission has not issued any
order preventing or suspending the use of any Prospectus Supplement
or any Permitted Free Writing Prospectus and no proceeding for that
purpose has been initiated or, to the knowledge of the Company, is
threatened by the Commission.
(c) Registration
Statement and Prospectus Conform to the Requirements of the
Act. At the Execution Time, the
Registration Statement conformed, and, as then amended or
supplemented as of each other Representation Date will conform, in
all material respects, to the applicable requirements of the Act.
When the Prospectus is first filed in accordance with Rule 424(b)
under the Act and as of each Representation Date, the Prospectus,
as amended or supplemented, will conform, in all material respects,
to the applicable requirements of the Act and, except to the extent
the Manager shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to the Manager prior
to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes as the Company has advised the
Manager, prior to the Execution Time, will be included or made
therein. The Company meets, and at the time the Registration
Statement was originally declared effective the Company met, the
applicable requirements of Form S-3 under the
Act.
(d) Permitted
Free Writing Prospectuses Conform to the Requirements of the
Act. Each Permitted Free
Writing Prospectus, if any, conformed or will conform in all
material respects to the requirements of the Act on the date of
first use, and the Company has complied with all prospectus
delivery and filing requirements applicable to each such Permitted
Free Writing Prospectus pursuant to the Act. The Company has not
made any offer relating to the Shares that would constitute a
Permitted Free Writing Prospectus without the prior written consent
of the Manager. The Company has retained, in accordance with the
Act, all Permitted Free Writing Prospectuses, if any, that were not
required to be filed pursuant to the Act.
(e) No
Material Misstatements or Omissions. As of its effective date, the Registration
Statement did not, and does not and will not, as then amended or
supplemented, as of each Representation Date, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; as of its date the Prospectus does not, and
does not and will not, as then amended or supplemented, as of each
Representation Date, contain an untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; each Permitted Free Writing Prospectus, if
any, as of its date, did not include any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; each Permitted Free
Writing Prospectus, if any, does not conflict with the information
contained in the Registration Statement, and each such Permitted
Free Writing Prospectus, as supplemented by and taken together with
the Prospectus as of its date, did not and will not include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties set
forth in this Section 2(e) do not apply to statements in or
omissions from the Registration Statement, the Prospectus or any
Permitted Free Writing Prospectus or any such amendment or
supplement thereto in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Manager
expressly for use therein.
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(f) Formation
and Qualification. Each of the
Company, Edesa Biotech Research, Inc., a company incorporated
pursuant to the laws of the Province of Ontario, Canada
(“Edesa
Research”) and Stellar
Biotechnologies, Inc., a California corporation
(“Stellar” and, together with the Company and Edesa
Research, the “Company
Parties”) has been duly
organized and is validly existing and is in good standing as a
corporation under the laws of its jurisdiction of organization with
full corporate power and authority to own or lease, as the case may
be, and operate its properties and conduct its business as
described in the Prospectus. Each of the Company Parties is duly
registered or qualified to transact business as a foreign
corporation and is in good standing in all jurisdictions in which
the conduct of its business requires such registration or
qualification, all of such jurisdictions being listed on
Schedule
C hereto, except where the
failure to be so registered or qualified or to be in good standing
would not have a material adverse effect on (i) the condition
(financial or otherwise), properties, assets, liabilities, results
of operations, earnings, business or prospects of the Company
Parties taken as a whole, whether or not arising from transactions
in the ordinary course of business (a “Material Adverse
Effect”) or (ii) the
performance of this Agreement or the transactions contemplated by
this Agreement. At the Execution Time, the Company does not own or
control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries listed in Exhibit 21 to
the Company’s Transition Report on Form 10-K for the
transition period from January 1, 2019 to September 30,
2019.
(g) Power
and Authority. The Company has
all requisite corporate power and authority to execute and deliver
this Agreement and perform its obligations hereunder. The Company
has all requisite power and authority to issue, sell and deliver
the Shares, in accordance with and upon the terms and conditions
set forth in the Amended and Restated Articles of the Company (the
“Articles”). All corporate action required to be
taken by any of the Company Parties or any of their respective
directors for the authorization, issuance, sale and delivery of the
Shares and the consummation of the transactions contemplated by
this Agreement has been validly taken.
(h) Shares.
The Shares to be issued and sold by
the Company hereunder have been duly authorized and, when issued
and delivered and paid for as provided herein, will be duly and
validly issued in accordance with the Articles, and will be fully
paid and nonassessable and will conform in all material respects to
the description of the Common Shares in the Registration Statement
and the Prospectus; and except as described in or expressly
contemplated by the Registration Statement and the Prospectus,
there are no outstanding rights (including, without limitation,
preemptive rights), warrants or options to acquire, or instruments
convertible into or exchangeable for, any Common Shares or other
equity security in the Company, or any contract, commitment,
agreement, understanding or arrangement of any kind relating to the
issuance of any equity security of the Company or any such
convertible or exchangeable securities, rights, warrants or
options.
(i) Outstanding
Company Stock. As of the
Execution Date, the issued and outstanding capital stock of the
Company consists of 9,608,869 Common Shares and 250 shares of Series A-1
Convertible Preferred Shares. All such shares have been duly
authorized and validly issued in accordance with the Articles, and
have been fully paid and are nonassessable.
(j) Authorization,
Execution and Delivery of this Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
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(k) Restrictions
on Company Parties’ Ownership of
Securities. Other than (i) the
Company’s ownership of (1) all of the capital stock of Edesa
Research and (2) all of the capital stock of Stellar, none of the
Company Parties own, directly or indirectly, any equity or
long-term debt securities of any corporation, partnership, limited
liability company, joint venture, association or other entity
except as may be disclosed in the Registration Statement and
Prospectus after the Execution Time and in accordance with this
Agreement.
(l) No
Violation or Default. No
Company Party is (i) in violation of its charter or by-laws,
articles or similar organizational documents, (ii) in default,
and no event has occurred that, with notice or lapse of time or
both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which such Company Party is a party or
by which such Company Party is bound or to which any of the
property of any Company Party is subject, or (iii) in
violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory
authority applicable to such Company Party or any of its
properties, except, in the case of clauses (ii) and (iii)
above, for any such default, prospective default or violation that
would not, individually or in the aggregate, have a Material
Adverse Effect or materially impair the ability of the Company to
consummate the transactions contemplated by this
Agreement.
(m) No
Conflicts. The execution,
delivery and performance by the Company of this Agreement, the
issuance and sale of the Shares, the consummation by the Company of
the transactions contemplated hereby, and the application of the
proceeds as described under the caption “Use of
Proceeds” in the Prospectus will not (i) conflict with
or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, result in the
termination, modification or acceleration of, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of any Company Party pursuant to any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which any Company Party is a party or by which any Company Party is
bound or to which any of the property of any Company Party is
subject, (ii) result in any violation of the provisions of the
charter or by-laws, articles or similar organizational documents of
any Company Party or (iii) result in the violation of any law
or statute or any judgment, order, rule or regulation of any court
or arbitrator or governmental or regulatory authority applicable to
such Company Party or any of its properties, except, in the case of
clauses (i) and (iii) above, for any such conflict, breach,
violation or default that would not, individually or in the
aggregate, have a Material Adverse Effect.
(n) No
Consents Required. No consent,
approval, authorization, order, license, registration or
qualification of or with any court or arbitrator or governmental or
regulatory authority is required in connection with the issuance
and sale of the Shares and the consummation by the Company of the
transactions contemplated hereby, except for (i) the
registration of the Shares under the Act and the Exchange Act,
(ii) as may be required by the Financial Industry Regulatory
Authority, Inc. (“FINRA”), (iii) under applicable state or
Canadian securities laws in connection with the purchase and
distribution of the Shares by the Manager, (iv) consents,
approvals, authorizations, orders, licenses, registrations or
qualifications that have been or, prior to the Execution Date, as
applicable, will be obtained, (v) consents, approvals,
authorizations, orders, licenses, registrations or qualifications
that, if not obtained, would not have a Material Adverse Effect or
materially impair the ability of the Company to consummate the
transactions contemplated by this Agreement, (vi) any listing
applications and related consents or any notices required by The
Nasdaq Stock Market (“Nasdaq”) in the ordinary course of the offering of
the Shares, (vii) filings with the Commission pursuant to Rule
424(b) under the Act or (viii) filings with the Commission on
Form 8-K or otherwise with respect to this Agreement or required to
be made in connection with the transactions contemplated hereby or
the registration of the Shares under the Act or the Exchange
Act.
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(o) Legal
Proceedings. Except as
described in the Registration Statement or the Prospectus, there
are no legal, governmental or regulatory investigations, actions,
suits, inquiries or proceedings pending or, to the knowledge of the
Company, threatened to which any Company Party is or may be a party
or to which any property of any Company Party is or may be the
subject that, individually or in the aggregate, if determined
adversely to any Company Party, would reasonably be expected to
have a Material Adverse Effect. There are no current or pending
legal, governmental or regulatory investigations, actions, suits,
inquiries or proceedings that are required under the Act to be
described in the Registration Statement or the Prospectus that are
not so described therein.
(p) Independent
Accountants. MNP LLC (the
“Accountant”), which has audited certain financial
statements of the Company, is an independent registered public
accounting firm with respect to each entity it has audited within
the applicable rules and regulations adopted by the Commission and
the Public Company Accounting Oversight Board (United States) and
as required by the Act. To the Company’s knowledge, the
Accountant is not and was not, during the term of its engagement as
the Company's independent registered public accounting firm, in
violation of the auditor independence requirements of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations
promulgated in connection therewith (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”) with respect to the
Company.
(q) Title
to Real and Personal Property.
Except as described in the Registration Statement and the
Prospectus and except to the extent that failure of the following
to be true, individually or in the aggregate, would not have a
Material Adverse Effect: the Company Parties have indefeasible
title to all real property and good title to all personal property
described in the Registration Statement and the Prospectus as being
owned by any of them, free and clear of all Liens, other than as do
not materially interfere with the use of such properties, taken as
a whole, as they have been used in the past and are proposed to be
used in the future as described in the Registration Statement and
the Prospectus; and all the property described in the Registration
Statement and the Prospectus as being held under lease by the
Company Parties are held thereby under valid, subsisting and
enforceable leases, except to the extent the failure to so hold
does not materially interfere with the use of such properties,
taken as a whole, as they have been used in the past and are
proposed to be used in the future as described in the Registration
Statement and the Prospectus.
(r) Title
to Intellectual Property. To
the Company’s knowledge, each of the Company Parties owns,
possesses, licenses or has other rights to use or otherwise receive
the benefit of all material foreign and domestic patents, patent
applications, trade and service marks, trade and service ▇▇▇▇
registrations, trade names, copyrights, licenses, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
(collectively, “Intellectual
Property”) necessary for
the conduct of their respective businesses as conducted and
proposed to be conducted as described in the Registration Statement
and the Prospectus, except to the extent the failure to own,
possess, license or have other rights to use or otherwise receive
the benefit of such rights does not have a Material Adverse Effect.
The Company Parties have not received any notice of any claim of
infringement, misappropriation or conflict with any such rights of
others in connection with its patents, patent rights, licenses,
inventions, trademarks, service marks, trade names, copyrights and
know-how, which would reasonably be expected to result in a
Material Adverse Effect.
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(s) Except
as disclosed in the Registration Statement and the Prospectus, (i)
to the Company’s knowledge, there are no rights of third
parties to any such Intellectual Property owned, possessed,
licensed or otherwise held by the Company Parties; (ii) to the
Company’s knowledge, there is no infringement by third
parties of any such Intellectual Property; (iii) there is no
pending or, to the Company’s knowledge, threatened action,
suit, inquiry, proceeding or claim brought by others challenging
any Company Party’s rights in or to any such Intellectual
Property, and the Company is unaware of any facts which could form
a reasonable basis for any such action, suit, inquiry, proceeding
or claim; (iv) there is no pending or, to the Company’s
knowledge, threatened action, suit, inquiry, proceeding or claim
brought by others challenging the validity or scope of any such
Intellectual Property; (v) there is no pending or, to the
Company’s knowledge, threatened action, suit, inquiry,
proceeding or claim brought by others that any Company Party has
infringed, misappropriated or otherwise violated any patent,
trademark, copyright, trade secret or other proprietary rights of
others or would, upon further development or commercialization of
any product, product candidate or service described in the
Registration Statement and the Prospectus as under development,
infringe, misappropriate or violate, any intellectual property of
others, and the Company is unaware of any facts that would form a
basis for any such claim; (vi) to the Company’s knowledge,
there is no third-party U.S. patent or published U.S. patent
application which contains claims for which an Interference
Proceeding (as defined in 35 U.S.C. § 135) has been commenced
against any patent or patent application described in the
Registration Statement and Prospectus as being owned by or licensed
to the Company; (vii) there is no prior act or public or commercial
activity of which the Company is aware that would reasonably be
expected to render any patent included in the Intellectual Property
invalid or that would preclude the issuance of any patent on any
patent application included in the Intellectual Property which has
not been disclosed to the U.S. Patent and Trademark Office or the
relevant foreign patent authority, as the case may be; (viii) to
the Company’s knowledge, the Company has not committed any
act or omitted to undertake any act the effect of such commission
or omission would reasonably be expected to result in a legal
determination that any item of Intellectual Property thereby was
rendered invalid or unenforceable in whole or in part; (ix) to the
Company’s knowledge, the issued patents included in the
Intellectual Property are valid and enforceable and the Company is
unaware of any facts that would preclude the issuance of a valid
and enforceable patent on any pending patent application included
in the Intellectual Property; (x) the use or composition of the
product candidates described in the Registration Statement and the
Prospectus as under development by the Company fall within the
scope of one or more claims of the patents or patent applications
included in the Intellectual Property; (xi) the Company has taken
reasonable steps necessary to secure the interests of the Company
in the Intellectual Property purported to be owned by the Company
from any employees, consultants, agents or contractors that
developed (in whole or in part) such Intellectual Property; (xii)
the Company Parties have complied with the terms of each agreement
pursuant to which Intellectual Property has been licensed to such
Company Party, and all such agreements are in full force and effect
and, (xiii) to the Company’s knowledge, regarding the
Intellectual Property, no employee of a Company Party is in or has
ever been in violation of any term of any employment contract,
patent disclosure agreement, invention assignment agreement,
non-competition agreement, non-solicitation agreement,
nondisclosure agreement or any restrictive covenant to or with a
former employer where the basis of such violation relates to such
employee’s employment with the Company Party or actions
undertaken by the employee while employed with the Company Party,
except, in the case of any of clauses (i)-(xiii) above, for any
such rights of or infringement by third parties or any such pending
or threatened suit, action, proceeding or claim, or any
non-compliance, act, event, occurrence, or fact as would not,
individually or in the aggregate, result in a Material Adverse
Effect.
6
(t) Consents
and Permits. Except as
disclosed in the Registration Statement and the Prospectus, the
Company Parties have made all filings, applications and submissions
required by, possesses and is operating in compliance with, all
approvals, licenses, certificates, certifications, clearances,
consents, grants, exemptions, marks, notifications, orders, permits
and other authorizations issued by the appropriate Governmental
Authority necessary for the ownership or lease of their respective
properties or to conduct its businesses as described in the
Registration Statement and the Prospectus (collectively,
“Permits”), except for such Permits the failure of
which to possess, obtain or make the same would not have a Material
Adverse Effect; the Company Parties are in compliance with the
terms and conditions of all such Permits, except where the failure
to be in compliance would not have a Material Adverse Effect; all
of the Permits are valid and in full force and effect, except where
any invalidity, individually or in the aggregate, would not have a
Material Adverse Effect; and none of the Company Parties has
received any written notice relating to the limitation, revocation,
cancellation, suspension, modification or non-renewal of any such
Permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material
Adverse Effect, or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the
ordinary course. “Governmental
Authority” means (i) any
federal, provincial, state, local, municipal, national or
international government or governmental authority, regulatory or
administrative agency, governmental commission, department, board,
bureau, agency or instrumentality, court, tribunal, arbitrator or
arbitral body (public or private) (including, without limitation,
the United States Food and Drug Administration (the
“FDA”) and Health Canada); (ii) any
self-regulatory organization; or (iii) any political subdivision of
any of the foregoing. To the extent required by applicable laws and
regulations of the FDA, the applicable Company Party has submitted
to the FDA an Investigational New Drug Application or amendment or
supplement thereto for each clinical trial it has conducted or
sponsored or is conducting or sponsoring; all such submissions were
in material compliance with applicable laws and rules and
regulations when submitted and no material deficiencies have been
asserted by the FDA with respect to any such submissions. The
Company Parties possess such valid and current certificates,
authorizations or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct their
respective businesses, and none of the Company Parties has received
any notice of proceedings relating to the revocation or
modification of, or non-compliance with, any such certificate,
authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result
in a Material Adverse Effect.
(u) Regulatory
Filings. Except as disclosed in
the Registration Statement and the Prospectus, none of the Company
Parties has failed to file with the applicable Governmental
Authorities (including, without limitation, the FDA, Health Canada,
or any foreign, federal, state, provincial or local Governmental
Authority performing functions similar to those performed by the
FDA) any required filing, declaration, listing, registration,
report, document, form, notice, application, claim, submission,
supplement or amendment, except for such failures that,
individually or in the aggregate, would not have a Material Adverse
Effect; except as disclosed in the Registration Statement and the
Prospectus, all such filings, declarations, listings,
registrations, reports documents, forms, notices, applications,
claims, submissions, supplements or amendments were complete,
correct and in compliance with applicable laws when filed (or were
corrected or supplemented by a subsequent submission) and no
deficiencies have been asserted by any applicable governmental or
regulatory authority with respect to any such filings,
declarations, listings, registrations, reports, documents, forms,
notices, applications, claims, submissions, supplements or
amendments, except for any deficiencies that, individually or in
the aggregate, would not have a Material Adverse Effect. The
Company Parties have operated and currently are, in all material
respects, in compliance with the United States Federal Food, Drug,
and Cosmetic Act (the “FDCA”), the Canada Food and Drugs Act, all
applicable rules and regulations of the FDA or Health Canada and
other federal, state, provincial, local and foreign Governmental
Authority exercising comparable authority, except where the failure
to comply, individually or in the aggregate, would not have a
Material Adverse Effect.
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(v) Clinical
Studies. The preclinical
studies and tests and clinical trials conducted by or, to the
knowledge of the Company, on behalf of or sponsored by the Company
Parties were, and, if still pending, are being conducted in all
material respects in accordance with the experimental protocols,
procedures and controls pursuant to, where applicable, accepted
professional and scientific standards for products or product
candidates comparable to those being developed by the Company
Parties and all applicable laws, including, without limitation, the
FDCA and its implementing regulations at 21 C.F.R. Parts 50, 54, 56
and 312, and the Canada Food and Drugs Act; the descriptions of
such studies, tests and trials, and the results thereof, contained
in the Registration Statement and Prospectus are accurate and
complete in all material respects; the Company is not aware of any
tests, studies or trials not described in the Registration
Statement or Prospectus, the results of which reasonably call into
question the results of the tests, studies and trials described in
the Registration Statement or Prospectus; and the Company has not
received any written notice or correspondence from the FDA, Health
Canada or any foreign, state or local Governmental Authority
exercising comparable authority or any institutional review board
or comparable authority requiring the termination, suspension,
clinical hold or material modification of any tests, studies or
trials.
(w) No
Undisclosed Relationships. No
relationship, direct or indirect, exists between or among any
Company Party, on the one hand, and the directors, officers, equity
holders, customers or suppliers of any Company Party, on the other,
that is required by the Act to be described in the Registration
Statement and the Prospectus and that is not so described in such
documents.
(x) Investment
Company Act. None of the
Company Parties is now or, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as
described in the Registration Statement and the Prospectus, will be
required to register as an “investment company” or an
entity “controlled” by an “investment
company”, in each case within the meaning of the Investment
Company Act of 1940, as amended, and the rules and regulations of
the Commission thereunder (collectively, the
“Investment Company
Act”).
(y) Taxes.
The Company Parties have paid all federal, provincial, state,
local, foreign and franchise taxes and filed all federal,
provincial, state, local, foreign and franchise tax returns
required to be paid or filed through the date hereof, except for
(i) the payment of any taxes (A) that are being contested
in good faith and for which adequate reserves have been provided or
(B) which, if not paid, would not have, individually or in the
aggregate, a Material Adverse Effect, and (ii) the filing of
any tax returns as to which the failure to file would not have,
individually or in the aggregate, a Material Adverse Effect; and
except as otherwise disclosed in the Registration Statement and the
Prospectus, there is no tax deficiency that has been, or could
reasonably be expected to be, asserted against any Company Party or
any of their respective properties, except as would not have,
individually or in the aggregate, a Material Adverse
Effect.
(z) No
Labor Disputes. No labor
disturbance by or dispute with employees of any of the Company
Parties exists or, to the knowledge of the Company, is contemplated
or threatened, and none of the Company Parties are aware of any
existing or imminent labor disturbance by, or dispute with, the
employees of any of their principal suppliers, contractors or
customers, except, in each case, as would not have, individually or
in the aggregate, a Material Adverse Effect.
8
(aa) Compliance
with and Liability under Environmental Laws. Except as described in the Registration
Statement and the Prospectus: (i) the Company Parties (A) are, and
at all prior times were, in compliance with any and all applicable
federal, provincial, state, local and foreign laws, rules,
regulations, requirements, decisions and orders relating to the
protection of human health or safety, the environment, natural
resources, hazardous or toxic substances or wastes, pollutants or
contaminants (collectively, “Environmental
Laws”), (B) have received
and are in compliance with all permits, licenses, certificates or
other authorizations or approvals required of them under applicable
Environmental Laws to conduct their respective businesses, and (C)
have not received notice of any actual or potential liability under
or relating to any Environmental Laws, including for the
investigation or remediation of any disposal or release of
hazardous or toxic substances or wastes, pollutants or
contaminants, and have no knowledge of any event or condition that
would result in any such notice, and (ii) there are no costs or
liabilities associated with Environmental Laws of or relating to
the Company Parties, except in the case of each of (i) and (ii)
above, for any such failure to comply, or failure to receive
required permits, licenses or approvals, or cost or liability, as
would not, individually or in the aggregate, have a Material
Adverse Effect. Except as described in the Registration Statement
and the Prospectus, (x) there are no proceedings that are pending,
or that are known to be contemplated, against the Company Parties
under any Environmental Laws in which a governmental entity is also
a party, other than such proceedings regarding which it is
reasonably believed no monetary sanctions of $100,000 or more will
be imposed, (y) the Company Parties are not aware of any issues
regarding compliance with Environmental Laws, or liabilities or
other obligations under Environmental Laws or concerning hazardous
or toxic substances or wastes, pollutants or contaminants, that
could reasonably be expected to have a material effect on the
capital expenditures or earnings or financial position of the
Company Parties, and (z) none of the Company Parties anticipates
material capital expenditures relating to any Environmental Laws.
None of the Company Parties has been named as a “potentially
responsible party” under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, or
any similar U.S. or non-U.S. state or local Environmental Laws or
regulation requiring such Company Party to investigate or remediate
any pollutants or contaminants, except where such requirements
would not, individually or in the aggregate, have a Material
Adverse Effect, whether or not arising from transactions in the
ordinary course of business.
(bb) Disclosure
Controls. The Company maintains
effective “disclosure controls and procedures” (as
defined in Rule 13a-15(e) of the Exchange Act) which (i) are
designed to ensure that material information relating to the
Company Parties is made known to the Company’s principal
executive officer and its principal financial officer by others
within those entities, especially during the periods in which the
periodic reports required under the Exchange Act are being
prepared, (ii) have been evaluated by management of the Company for
effectiveness as of the end of the Company’s most recent
fiscal quarter, and (iii) are effective in all material respects to
perform the functions for which they were
established.
(cc) Insurance.
The Company Parties have, or are entitled to the benefit of,
insurance (including self-insurance) covering their respective
properties, operations, personnel and businesses, including
business interruption insurance, which insurance is in amounts and
insures against such losses and risks as are reasonably adequate to
protect the Company Parties and their respective businesses in a
commercially reasonable manner; and no Company Party has received
notice from any insurer or agent of such insurer that capital
improvements or other expenditures are required or necessary to be
made in order to continue such insurance.
9
(dd) Internal
Accounting Controls. The
Company maintains a system of “internal control over
financial reporting” (as defined in Rule 13a-15(f) of the
Exchange Act) that complies with the requirements of the Exchange
Act and has been designed by, or under the supervision of, its
principal executive and principal financial officers, or persons
performing similar functions, to provide reasonable assurance
regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles
(“GAAP”). The Company maintains internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s
general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the
interactive data in eXtensible Business Reporting Language included
or incorporated by reference in the Registration Statement fairly
presents the information called for in all material respects and
has been prepared in accordance with the Commission’s rules
and guidelines applicable thereto. The Company’s internal
accounting controls are effective and the Company is not aware of
any material weaknesses in the accounting controls of the Company.
The Company’s independent auditors and board of directors
have been advised of: (x) all “material weaknesses” and
“significant deficiencies” (each, as defined in Rule
12b-2 of the Exchange Act), if any, in the design or operation of
internal controls which could adversely affect the Company’s
ability to record, process, summarize and report financial data and
(y) all fraud, if any, whether or not material, that involves
management or other employees who have a role in the
Company’s internal controls (whether or not remediated); all
such material weaknesses and significant deficiencies, if any, have
been disclosed in the Registration Statement and the Prospectus in
all material respects; and, since the date of the most recent
evaluation of such disclosure controls and procedures and internal
controls, there have been no significant changes in internal
controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to
significant deficiencies and material
weaknesses.
(ee) Financial
Information. The consolidated
historical financial statements, including the notes thereto, and
schedules of the Company Parties included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the financial condition, results of operations and cash
flows of the Company as of the dates and for the periods indicated,
comply as to form with the applicable accounting requirements of
the Act and the Exchange Act and have been prepared in conformity
with GAAP applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). All non-GAAP
financial information included or incorporated by reference in the
Registration and the Prospectus complies with the requirements of
Regulation G and Item 10 of Regulation S-K under the Act; and,
except as disclosed in the Registration Statement and the
Prospectus, there are no material off-balance sheet arrangements
(as defined in Regulation S-K under the Act, Item 303(a)(4)(ii)) or
any other relationships with unconsolidated entities or other
persons, that may have a material current or, to the
Company’s knowledge, material future effect on the
Company’s consolidated financial condition, results of
operations, liquidity, capital expenditures, capital resources or
significant components of revenue or expenses. No other financial
statements or schedules are required to be included or incorporated
by reference in the Registration Statement or the
Prospectus.
(ff) No
Unlawful Payments. None of the
Company Parties nor any director, officer or employee of any of the
Company Parties nor, to the knowledge of the Company, any agent,
affiliate or other person associated with or acting on behalf of
any Company Party has (i) used any Company Party funds for any
unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made or taken an
act in furtherance of an offer, promise or authorization of any
direct or indirect unlawful payment or benefit to any foreign or
domestic government official or employee, including of any
government-owned or controlled entity or of a public international
organization, or any person acting in an official capacity for or
on behalf of any of the foregoing, or any political party or party
official or candidate for political office; (iii) violated or
is in violation of any provision of the Foreign Corrupt Practices
Act of 1977, as amended, or any applicable law or regulation
implementing the OECD Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions, or
committed an offence under the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ of the United
Kingdom, or any other applicable anti-bribery or anti-corruption
law; or (iv) made, offered, agreed, requested or taken an act
in furtherance of any unlawful bribe or other unlawful benefit,
including, without limitation, any rebate, payoff, influence
payment, kickback or other unlawful or improper payment or benefit.
Each Company Party has instituted, maintains and enforces, and will
continue to maintain and enforce, policies and procedures designed
to promote and ensure compliance with all such applicable
anti-bribery and anti-corruption laws.
10
(gg) Compliance
with Anti-Money Laundering Laws. The operations of the Company Parties are and
have been conducted at all times in material compliance with
applicable financial recordkeeping and reporting requirements,
including those of the Currency and Foreign Transactions Reporting
Act of 1970, as amended by the USA Patriot Act, the applicable
money laundering statutes of all jurisdictions where any Company
Party conducts business, the rules and regulations thereunder
and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Anti-Money Laundering
Laws”), and no action,
suit, inquiry or proceeding brought by or before any court or
governmental agency, authority or body or any arbitrator involving
any of the Company Parties with respect to the Anti-Money
Laundering Laws is pending or, to the knowledge of the Company,
threatened; the Company acknowledges that, in accordance with the
requirements of the USA Patriot Act, the Manager is required to
obtain, verify and record information that identifies its clients,
including the Company, which information may include the name and
address of its clients, as well as other information that will
allow the Manager to properly identify its
clients.
(hh) No
Conflicts with Sanctions Laws. None of the Company Parties, nor any directors,
officers or employees thereof, nor, to the knowledge of the
Company, any agent, affiliate or other person associated with or
acting on behalf of any Company Party, is currently the subject or
the target of any sanctions administered or enforced by the U.S.
government (including, without limitation, the Office of Foreign
Assets Control of the U.S. Department of the Treasury or the U.S.
Department of State and including, without limitation, the
designation as a “specially designated national” or
“blocked person”), the United Nations Security Council,
the European Union, Her Majesty’s Treasury or other relevant
sanctions authority (collectively, “Sanctions”), nor are any of the Company Parties
located, organized or resident in a country or territory that is
the subject or target of Sanctions, including, without limitation,
Cuba, Iran, North Korea, Syria and Crimea (each, a
“Sanctioned
Country”); and the
Company will not directly or indirectly use the proceeds of the
offering of the Shares hereunder, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture
partner or other person or entity (i) to fund or facilitate any
activities of or business with any person that, at the time of such
funding or facilitation, is the subject or target of Sanctions,
(ii) to fund or facilitate any activities of or business in any
Sanctioned Country or (iii) in any other manner that will result in
a violation by any person (including any person participating in
the transaction, whether as underwriter, advisor, investor or
otherwise) of Sanctions. For the past five (5) years, none of the
Company Parties have knowingly engaged in or are now knowingly
engaged in any dealings or transactions with any person that at the
time of the dealing or transaction is or was the subject or the
target of Sanctions or with any Sanctioned Country. None of the
Company Parties nor, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of a Company Party, is a
person that is, or is 50% or more owned or otherwise controlled by
a person that is: (x) the subject of any Sanctions or (y) located,
organized or resident in a Sanctioned Country.
(ii) No
Restrictions on Subsidiaries. No direct or indirect subsidiary of the Company is
prohibited or restricted, directly or indirectly, under any
agreement or other instrument to which it is a party or is subject,
from paying any distributions or dividends to the Company, from
making any other distribution on such subsidiary’s ownership
interests, from repaying to the Company any loans or advances to
such subsidiary from the Company or from transferring any of such
subsidiary’s properties or assets to the Company or any other
subsidiary of the Company. Except as set forth in the Registration
Statement and in the Prospectus, the Company owns, directly or
indirectly, all of the equity interests of the subsidiaries of the
Company free and clear of any lien, charge, security interest,
encumbrance, right of first refusal or other
restriction.
11
(jj) No
Broker’s Fees. None of
the Company Parties has incurred any liability, or is a party to
any contract, agreement or understanding with any person (other
than this Agreement) that would give rise to a valid claim against
such Company Party or the Manager, for a brokerage commission,
finder’s fee or like payment in connection with the offering
and sale of the Shares.
(kk) No
Preferential Rights. Except as
set forth in the Registration Agreement and the Prospectus, no
person, as such term is defined in Rule 1-02 of Regulation S-X
promulgated under the Act (each, a “Person”), has (i) the right, contractual or
otherwise, to cause the Company to issue or sell to such Person any
Common Shares or shares of any other capital stock or other
securities of the Company, (ii) any preemptive rights, resale
rights, rights of first refusal, rights of co-sale, or any other
rights (whether pursuant to a “poison pill” provision
or otherwise) to purchase any Common Shares or shares of any other
capital stock or other securities of the Company from the Company,
(iii) the right to act as an underwriter to the Company in
connection with the offer and sale of the Shares, or (iv) the right
to require the Company to register any securities for sale under
the Act by reason of the filing of the Registration Statement with
the Commission or the issuance and sale of the
Shares.
(ll) No
Material Adverse Change.
Subsequent to the respective dates as of which information is given
in the Registration Statement, the Prospectus and the Permitted
Free Writing Prospectuses, if any, (i) there has not been any
change in the capital stock or long-term debt of any Company Party,
or any dividend or distribution of any kind declared, set aside for
payment, paid or made by a Company Party on any class of capital
stock, or any Material Adverse Effect, or any development involving
a prospective Material Adverse Effect, in or affecting the
business, properties, prospects, earnings, rights, assets,
management, financial position, or results of operations of the
Company Parties taken as a whole; (ii) none of the Company Parties
has entered into any transaction or agreement that is material to
the Company Parties taken as a whole or incurred any liability or
obligation, direct or contingent, that is material to the Company
Parties taken as a whole; and (iii) none of the Company Parties has
sustained any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case as otherwise disclosed in
the Registration Statement or Prospectus (including any document
deemed incorporated by reference therein).
(mm) No
Stabilization. The Company
Parties and their respective directors, officers, affiliates and
controlling persons have not taken, directly or indirectly, any
action designed to or that could reasonably be expected to cause or
result in any stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares.
(nn) Statistical
and Market Data. Nothing has
come to the attention of the Company that has caused the Company to
believe that the statistical and market-related data included in or
incorporated by reference into the Registration Statement and the
Prospectus is not based on or derived from sources that are
reliable and accurate in all material respects and the Company has
obtained the written consent to the use of such data from such
sources to the extent required.
(oo) ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act. The Company has taken all
necessary action to ensure that, upon the filing of the
Registration Statement, the Company and, to the knowledge of the
Company, any of the Company’s directors or officers, in their
capacities as such, were, and as of each Representation were or
will be, in compliance in all material respects with any applicable
provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, including Section 402 thereof
related to loans and Sections 302 and 906 thereof related to
certifications.
12
(pp) Status
under the Act. At the time of
filing the Registration Statement and any post-effective amendment
thereto, at the earliest time thereafter that the Company or any
offering participant made a bona fide offer (within the meaning of
Rule 164(h)(2) under the Act) of the Shares and at the date hereof,
the Company was not and is not an “ineligible issuer,”
as defined in Rule 405 under the Act.
(qq) Listing
of the Shares. At the Time of
Sale, the Shares will have been approved for listing on
Nasdaq. The Company has taken no action designed to, or
likely to have the effect of, terminating the registration of the
Common Shares under the Exchange Act, delisting the Common Shares
from Nasdaq, nor has the Company received any notification that the
Commission or Nasdaq is contemplating terminating such registration
or listing. To the Company’s knowledge, it is in compliance
with all applicable listing requirements of
Nasdaq.
(rr) Description
of Securities. There are no
statutes, regulations, contracts or other documents required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that have not been
described or filed as required. The Company has not distributed
and, prior to the later to occur of each Settlement Date and
completion of the distribution of the Shares, will not distribute
any offering material in connection with the offering or sale of
the Shares other than the Registration Statement and the Prospectus
and any Permitted Free Writing Prospectus to which the Manager has
consented.
(ss) Certain
Market Activities. None of the
Company Parties, nor any of their respective directors, officers or
controlling persons has taken, directly or indirectly, any action
designed, or that has constituted or might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the
Shares.
(tt) Cybersecurity;
Data Protection. The Company
Parties’ information technology assets and equipment,
computers, systems, networks, hardware, software, websites,
applications, and databases (collectively,
“IT
Systems”) are adequate
for, and operate and perform in all material respects as required
in connection with, the operation of the business of the Company
Parties as currently conducted, to the Company’s knowledge
free and clear of all material bugs, errors, defects, Trojan
horses, time bombs, malware and other corruptants. The Company
Parties have implemented and maintained commercially reasonable
controls, policies, procedures, and safeguards designed to maintain
and protect their material confidential information and the
integrity, continuous operation, redundancy and security of all IT
Systems and data (including all personal, personally identifiable,
sensitive, confidential or regulated data
(“Personal
Data”)) used in
connection with their respective businesses and to the
Company’s knowledge there have been no breaches, violations,
outages or unauthorized uses of or accesses to the same, except for
those that have been remedied without material cost or liability or
the duty to notify any other person and those that would not,
individually or in the aggregate, have a Material Adverse Effect,
nor any incidents under internal review or investigations relating
to the same. The Company Parties are presently in material
compliance with all applicable laws or statutes and all judgments,
orders, rules and regulations of any court or arbitrator or
governmental or regulatory authority, internal policies and
contractual obligations relating to the privacy and security of IT
Systems and Personal Data and to the protection of such IT Systems
and Personal Data from unauthorized use, access, misappropriation
or modification.
13
(uu) Projections
and Forward-Looking Statements. No projection or other forward-looking statement
(within the meaning of Section 27A of the Act and Section 21E of
the Exchange Act) included in any of the Registration Statement and
the Prospectus has been made or reaffirmed without a reasonable
basis after due consideration by the Company of the underlying
assumptions, estimates and other applicable facts and circumstances
or has been disclosed other than in good faith. No such statement
was made with the knowledge of an executive officer or director of
the Company that was false or misleading.
SECTION
3: Sale and Delivery of
Shares.
(a) On
the basis of the representations, warranties and agreements herein
contained, and subject to the terms and conditions herein set
forth, the Company agrees to issue and sell through or to the
Manager, as sales agent and/or principal, as and when it provides
instructions, in its discretion, for the sale of the Shares, and
the Manager agrees to use its commercially reasonable efforts,
consistent with its normal trading and sales practices and
applicable law and regulations, to sell, as sales agent for the
Company, the Shares on the following terms.
(i) The
Shares are to be sold by the Manager on a daily basis or otherwise
as shall be mutually agreed upon by the Company and the Manager on
any trading day for Nasdaq (other than a day on which Nasdaq is
scheduled to close prior to its regular weekday closing time)
(each, a “Trading Day”), for which (A) the Company, through any
of the individuals listed as authorized representatives of the
Company on Schedule B
hereto, as such Schedule B
may be amended from time to time (the
“Authorized Company
Representatives”), has
instructed the Manager by telephone (confirmed promptly by
electronic mail containing a notice substantially in the form
attached hereto as Exhibit 3(a)(i), with a copy to each of the
other Authorized Company Representatives at such time) to make such
sales and (B) the Company has satisfied its obligations under
Sections 4, 5 and 6 hereof. On or before a Trading Day that the
Company wishes to sell the Shares, the Company will designate in a
notice delivered by electronic mail substantially in the form
attached hereto as Exhibit 3(a)(i) the maximum amount of the Shares
to be sold by the Manager daily or over a specific trading period
as agreed to by the Manager (in any event not in excess of the
amount available for issuance under the Prospectus and the
Registration Statement or in an amount, together with all sales of
the Shares under this Agreement, in excess of the amount of Shares
authorized from time to time to be issued and sold under this
Agreement or below any minimum price below which sales of the
Shares may not be effected) and any other limitations specified by
the Company and mutually agreed by the Manager. For the avoidance
of doubt, the foregoing limitation shall not apply to sales solely
to employees or other security holders of the Company or the
Company Parties or to a trustee or other person acquiring the
Shares for the accounts of such persons in which the Manger is
acting for the Company in a capacity other than as Manager under
this Agreement. Subject to the terms and conditions of this Section
3(a), the Manager may sell the Shares by any method permitted by
law deemed to be an At the Market Offering (as defined below),
including, without limitation, sales made by means of ordinary
brokers’ transactions, to or through a market maker at market
prices prevailing at the time of sale, at prices related to
prevailing market prices or at negotiated prices (such transactions
are hereinafter referred to as “At the Market
Offerings”). Subject to
the terms and conditions of this Section 3(a) and the other terms
and conditions specified herein (including, without limitation, the
accuracy of the representations and warranties of the Company
Parties and the performance by the Company of its covenants and
other obligations, contained herein and the satisfaction of the
additional conditions specified in Section 6 hereof), the Manager
shall use its commercially reasonable efforts to offer and sell all
of the Shares designated; provided, however, that the Manager shall have no obligation to
offer or sell any Shares, and the Company acknowledges and agrees
that the Manager shall have no such obligation, in the event that
an offer or sale of the Shares on behalf of the Company may, in the
reasonable judgment of the Manager, constitute the sale of a
“block” under Rule 10b-18(a)(5) under the Exchange
Act or a “distribution” within the meaning of Rule 100 of
Regulation M under the Exchange Act, or the Manager reasonably
believes that it may be deemed to be an “underwriter” under the Act in a transaction that is
other than by means of ordinary brokers’ transactions between
members of Nasdaq that qualify for delivery of a Prospectus to
Nasdaq in accordance with Rule 153 under the
Act.
14
(ii) Notwithstanding
the foregoing, the Company, through any of the Authorized Company
Representatives, may instruct the Manager by telephone (confirmed
promptly by electronic mail) not to sell the Shares if such sales
cannot be effected at or above the price designated by the Company
in any such instruction. In addition, the Company or Manager may,
upon notice to the other party hereto by telephone (confirmed
promptly by electronic mail), suspend the offering of the Shares
for a specified period (a “Suspension
Period”);
provided, however, that such Suspension Period shall not affect or
impair the parties’ respective obligations with respect to
the Shares sold hereunder prior to the giving of such notice
and provided, further, that there shall be no obligations under
Sections 4(m), 4(n), 4(p) and 4(q) with respect to the delivery of
certificates, opinions, or comfort letters to the Manager during a
Suspension Period and that such obligations shall recommence on the
termination of the Suspension Period.
(iii) The
Manager hereby covenants and agrees not to make any sales of the
Shares on behalf of the Company, pursuant to this Section 3(a),
other than (A) by means of At the Market Offerings and (B) such
other sales of the Shares on behalf of the Company in its capacity
as agent of the Company as shall be mutually agreed upon by the
Company and the Manager.
(iv) The
compensation to the Manager, as an agent of the Company, for sales
of the Shares shall be 3.5% of the gross sales price of the Shares
sold pursuant to this Section 3(a). The remaining proceeds, after
further deduction for any transaction fees imposed by any
governmental or self-regulatory organization in respect of such
sales, shall constitute the net proceeds to the Company for such
Shares (the “Net Proceeds”).
(v) If
acting as sales agent hereunder, the Manager shall provide written
confirmation to the Company (which may be by electronic mail) as
soon as is reasonably practicable following the close of trading on
Nasdaq each day in which the Shares are sold pursuant to this
Section 3(a) setting forth (i) the number of Shares sold on such
day, (ii) the Net Proceeds to the Company, and (iii) the
compensation payable by the Company to the Manager with respect to
such sales.
(vi) Settlement
for sales of the Shares pursuant to this Section 3(a) will occur on
the second business day that is also a trading day on Nasdaq
following the date on which such sales are made (each such date, a
“Settlement
Date”). On each
Settlement Date, the Shares sold through the Manager for settlement
on such date shall be issued and delivered by the Company to the
Manager against payment of the Net Proceeds for the sale of such
Shares. Settlement for all such Shares shall be effected by free
delivery of the Shares by the Company or its transfer agent to the
Manager’s account, or to the account of the Manager’s
designee, at The Depository Trust Company through its Deposit and
Withdrawal at Custodian System (“DTC”) or by such other means of delivery as may
be mutually agreed upon by the parties hereto, which in all cases
shall be freely tradable, transferable, registered shares in good
deliverable form, in return for payments in same day funds
delivered to the account designated by the Company. If the Company,
or its transfer agent (if applicable), shall default upon its
obligation to deliver the Shares on any Settlement Date, in
addition to and in no way limiting the rights and obligations set
forth in Section 7(a) hereof, the Company shall (A) indemnify and
hold the Manager harmless against any loss, claim or damage arising
from or as a result of such default by the Company and (B) pay the
Manager any commission to which it would otherwise be entitled
absent such default. The Authorized Company Representatives shall
be the contact persons for the Company for all matters related to
the settlement of the transfer of the Shares through DTC for
purposes of this Section 3(a)(vi).
15
(vii) At
each Representation Date, the Company shall be deemed to have
affirmed each representation and warranty contained in this
Agreement. Any obligation of the Manager to use its commercially
reasonable efforts to sell the Shares on behalf of the Company
shall be subject to the continuing accuracy of the representations
and warranties of the Company herein, to the performance by the
Company of its obligations hereunder and to the continuing
satisfaction of the additional conditions specified in Section 6
hereof.
(b) If
the Company wishes to issue and sell the Shares other than as set
forth in Section 3(a) hereof, it will notify the Manager of the
proposed terms of such issuance and sale (each, a
“Placement”). If the Manager, acting as principal,
wishes to accept such proposed terms (which it may decline to do
for any reason in its sole discretion) or, following discussions
with the Company, wishes to accept amended terms, the Company and
the Manager will enter into a Terms Agreement setting forth the
terms of such Placement. In the event of a conflict between the
terms of this Agreement and the terms of any Terms Agreement, the
terms of such Terms Agreement will control.
(c) Under
no circumstances shall the aggregate gross sales proceeds of the
Shares sold pursuant to this Agreement exceed the lesser of (A) the
amount set forth in Section 1 hereof and (B) the amount available
for offer and sale under the Registration Statement, nor shall the
aggregate amount of Shares sold pursuant to this Agreement exceed
the amount of Shares authorized to be issued and sold from time to
time under this Agreement by the board of directors of the Company,
or a duly authorized committee thereof, and notified to the Manager
in writing. The Manager shall have no responsibility for
maintaining records with respect to Shares available for sale under
the Registration Statement or for determining the aggregate gross
sales price, number or minimum price of Shares duly authorized by
the Company.
(d) Each
sale of the Shares through or to the Manager shall be made in
accordance with the terms of this Agreement or, if applicable, a
Terms Agreement. The Manager’s commitment, if any, to
purchase Shares from the Company as principal shall be deemed to
have been made on the basis of the accuracy of the representations
and warranties of the Company, and performance by the Company of
its covenants and other obligations, herein contained and shall be
subject to the terms and conditions herein set forth. At the time
of each Terms Agreement, the Manager shall specify the
requirements, if any, for the officers’ certificates, legal
opinions and comfort letters pursuant to Sections 4(m), 4(n), 4(p)
and 4(q) hereof.
(e) Subject
to the limitations set forth herein and as may be mutually agreed
upon by the Company and the Manager, sales effected pursuant to
this Agreement may not be requested by the Company and need not be
made by the Manager (i) during the 14 calendar days prior to the
date (each, an “Announcement
Date”) on which the
Company shall issue a press release containing, or shall otherwise
publicly announce, its earnings, revenues or other results of
operations (each, an “Earnings
Announcement”), (ii) at
any time from and including an Announcement Date through and
including the later to occur of (A) the time that is 24 hours after
the time that the Company files a Quarterly Report on Form 10-Q or
an Annual Report on Form 10-K that includes consolidated financial
statements as of and for the same period or periods, as the case
may be, covered by such Earnings Announcement, and (B) the
applicable Bring-Down Delivery Date of the Company referenced in
Section 4(q) below, or (iii) during any other period in which the
Company is, or could be deemed to be, in possession of material
non-public information.
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(f) The
Company acknowledges and agrees that (i) there can be no assurance
that the Manager will be successful in selling the Shares, (ii) the
Manager will not incur liability or obligation to the Company or
any other person or entity if it does not sell Shares for any
reason other than a failure by the Manager to use its commercially
reasonable efforts consistent with its normal trading and sales
practices and applicable law and regulations to sell such Shares in
accordance with the terms of this Agreement, and (iii) the Manager
shall not be under any obligation to purchase Shares on a principal
basis pursuant to this Agreement except as otherwise specifically
agreed by the Manager and the Company pursuant to a Terms
Agreement.
SECTION
4: Covenants of the
Company. The Company agrees
with the Manager:
(a) During
the period in which a prospectus relating to the Shares is required
to be delivered under the Act (whether physically, deemed to be
delivered pursuant to Rule 153 or through compliance with Rule 172
under the Act or any similar rule), to notify the Manager promptly
of the time when any amendment to the Registration Statement has
become effective or any amendment or supplement to the Prospectus
has been filed; to prepare and file with the Commission, promptly
upon the Manager’s request, any amendments or supplements to
the Registration Statement or the Prospectus that, in the
Manager’s reasonable opinion, may be necessary or advisable
in connection with the offer of the Shares by the Manager; and to
cause each amendment or supplement to the Prospectus to be filed
with the Commission as required pursuant to the applicable
paragraph of Rule 424(b) of the Act.
(b) To
promptly advise the Manager, confirming such advice in writing
(which may be made by electronic mail), of any request by the
Commission for amendments or supplements to the Registration
Statement, the Base Prospectus or the Prospectus or for additional
information with respect thereto, or of notice of examination,
institution of proceedings for, or the entry of a stop order
suspending the effectiveness of the Registration Statement and, if
the Commission should enter a stop order suspending the
effectiveness of the Registration Statement, to use its
commercially reasonable efforts to obtain the lifting or removal of
such order as soon as possible; to promptly advise the Manager of
any proposal to amend or supplement the Registration Statement, the
Base Prospectus or the Prospectus, and to provide the Manager and
counsel for the Manager copies of any such documents (excluding any
documents incorporated or deemed incorporated therein by reference)
for review and comment in a reasonable amount of time prior to any
proposed filing and to file no such amendment or supplement (other
than any prospectus supplement relating to the offering of other
securities (including, without limitation, Shares)) to which the
Manager shall have objected in writing.
(c) To
make available to the Manager, as soon as practicable after the
date of this Agreement, and thereafter from time to time to furnish
to the Manager, as many copies of the Prospectus (or of the
Prospectus as amended or supplemented at such time if the Company
shall have made any amendments or supplements thereto) as the
Manager may reasonably request; in case the Manager are required to
deliver (whether physically, deemed to be delivered pursuant to
Rule 153 or through compliance with Rule 172 under the Act or any
similar rule), in connection with the sale of the Shares, a
prospectus after the nine-month period referred to in Section
10(a)(3) of the Act, or after the time a post-effective amendment
to the Registration Statement is required pursuant to Item 512(a)
of Regulation S-K under the Act, the Company will prepare, at its
expense, such amendment or amendments to the Registration Statement
and the Prospectus as may be necessary to ensure compliance with
the requirements of Section 10(a)(3) of the Act or Item 512(a) of
Regulation S-K under the Act, as the case may be.
17
(d) Subject
to Section 4(b) hereof, to file promptly all reports and documents
and any preliminary or definitive proxy or information statement
required to be filed by the Company with the Commission in order to
comply with the Exchange Act for so long as a prospectus relating
to the Shares is required by the Act to be delivered (whether
physically, deemed to be delivered pursuant to Rule 153 under the
Act or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares.
(e) To
promptly notify the Manager of the happening of any event that
could require the making of any change in the Prospectus as then
amended or supplemented so that the Prospectus would not include an
untrue statement of material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading, and,
during any period during which a prospectus is required to be
delivered (whether physically, deemed to be delivered pursuant to
Rule 153 under the Act or through compliance with Rule 172 under
the Act or any similar rule) in connection with any sale of Shares,
to prepare and furnish, at the Company’s expense, to the
Manager promptly such amendments or supplements to such Prospectus
as may be necessary to reflect any such change in such quantities
as the Manager may reasonably request.
(f) To
furnish such information as may be required and otherwise cooperate
in qualifying the Shares for offer and sale under the securities
laws of such jurisdictions as the Manager may reasonably designate
and to maintain such qualifications in effect so long as required
for the distribution of the Shares; provided, however, that the Company shall not be required to
qualify as a foreign corporation or to consent to the service of
process under the laws of any such jurisdiction (except service of
process with respect to the offering and sale of the Shares); and
to promptly advise the Manager of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Shares for offer or sale in any jurisdiction or the initiation
or threatening in writing of any proceeding for such
purpose.
(g) To
make generally available to the Company’s security holders,
and to deliver to the Manager, an earnings statement of the Company
(which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 thereunder) covering a period of twelve months beginning
October 1, 2019 as soon as is reasonably practicable after the
termination of such twelve-month period but not later than April 1,
2021.
(h) To
apply the net proceeds from the sale of the Shares pursuant to this
Agreement and any Terms Agreement in the manner set forth under the
caption “Use of
Proceeds” in the
Prospectus Supplement.
(i) At
any time that the Company has instructed the Manager to sell the
Shares pursuant to Section 3(a)(i) hereof but such instructions
have not been fulfilled, settled or cancelled, not to sell, offer
to sell, contract or agree to sell, hypothecate, pledge, grant any
option to sell or otherwise dispose of or agree to dispose of,
directly or indirectly, any Common Shares or securities convertible
into or exchangeable or exercisable for Common Shares or warrants
or other rights to purchase Common Shares or any other securities
of the Company that are substantially similar to the Common Shares
or permit the registration under the Act of any Common Shares, in
each case without giving the Manager at least three business
days’ prior written notice specifying the nature of the
proposed sale and the date of such proposed sale. Notwithstanding
the foregoing, the Company may (i) register the offer and sale of
the Shares through the Manager pursuant to this Agreement or any
Terms Agreement; (ii) issue Common Shares pursuant to employee
benefit plans, qualified stock option plans or other employee
compensation plans existing on the date hereof; (iii) issue Common
Shares in connection with the exercise of any warrants outstanding
prior to the Execution Date; or (iv) issue Common Shares in
connection with any acquisition, provided, that in connection with such issuance, the
seller(s) agrees in writing to be bound by the provisions of this
Section 4(i). In the event that notice of a proposed sale is
provided by the Company pursuant to this Section 4(i), the Manager
may suspend activity under this program for such period of time as
may be requested by the Company or as may be deemed appropriate by
the Manager.
18
(j) Not
to take, and to cause each other Company Party not to take,
directly or indirectly, any action designed to cause or result in,
or that has constituted or might reasonably be expected to
constitute under the Exchange Act or otherwise, the stabilization
or manipulation of the price of Common Shares to facilitate the
sale or resale of the Shares.
(k) To
use its commercially reasonable efforts to cause the Common Shares
to maintain its listing on Nasdaq.
(l) To
advise the Manager promptly after it receives notice or obtains
knowledge of any information or fact that would materially alter or
affect any opinion, certificate, letter or other document provided
to the Manager pursuant to Section 6 hereof.
(m) Upon
commencement of the offering of the Shares under this Agreement
(and upon recommencement of the offering of the Shares under this
Agreement following a Suspension Period) and promptly after each
date that (i) the Registration Statement or the Prospectus is
amended or supplemented (other than pursuant to subclause (ii)
below and other than by a prospectus supplement filed pursuant to
Rule 424(b) under the Act relating solely to the offering of
securities other than the Shares), or (ii) there is filed with the
Commission any document incorporated by reference into the
Prospectus (the date of commencement of the offering of the Shares
under this Agreement and each date referred to in subclauses (i)
and (ii) above, are collectively referred to as a
“Bring-Down Delivery
Date”), to furnish or
cause to be furnished to the Manager forthwith a certificate dated
and delivered on the Bring-Down Delivery Date, in form satisfactory
to the Manager, to the effect that the statements contained in the
certificate referred to in Section 6(e) of this Agreement that was
last furnished to the Manager are true and correct as of such
Bring-Down Delivery Date, as though made at and as of such date
(except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such certificate, a
certificate of the same tenor as the certificate referred to in
said Section 6(e), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate;
provided
that the filing of a Current Report on
Form 8-K will not constitute a Bring-Down Delivery Date under
clause (ii) above unless either (A)(x) such Current Report on Form
8-K is filed at any time during which either a prospectus relating
to the Shares is required to be delivered under the Act (whether
physically, deemed to be delivered pursuant to Rule 153 under the
Act or through compliance with Rule 172 under the Act or any
similar rule) or such Current Report on Form 8-K is filed at any
time from and including the date of a Terms Agreement through and
including the relevant Settlement Date and (y) the Manager has
reasonably requested that such date be deemed to be a Bring-Down
Delivery Date based upon the event or events reported in such
Current Report on Form 8-K or (B) such Current Report on Form 8-K
contains capsule financial information, historical or pro forma
financial statements, supporting schedules or other financial data,
including any Current Report on Form 8-K or part thereof under Item
2.02 of Regulation S-K of the Commission that is considered
“filed” under the Exchange Act; and provided, further, that the obligation of the Company under this
subsection (m) shall be deferred during any Suspension Period and
shall recommence upon the termination of such Suspension
Period.
(n) To
furnish or cause to be furnished forthwith to the Manager (i) at or
promptly after each Bring-Down Delivery Date (and upon
recommencement of the offering of the Shares under this Agreement
following a Suspension Period), a written opinion letter of each of
(i) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Markiles, LLP, U.S. counsel for the
Company (including negative assurance) and (ii) Fasken ▇▇▇▇▇▇▇▇▇
DuMoulin LLP, Canadian counsel for the Company, or other counsel
satisfactory to the Manager (the “Company
Counsel”), dated and
delivered as of such Bring-Down Delivery Date, in form and
substance satisfactory to the Manager, of the same tenor as the
opinions referred to in Section 6(c) of this Agreement, but
modified as necessary to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery
of such opinions;provided, however, that in lieu of such opinions for subsequent
Bring-Down Delivery Date that a Company Counsel is required to
deliver, such Company Counsel may furnish the Manager with a letter
to the effect that the Manager may rely on a prior opinion
delivered under this Section 4(n) to the same extent as if it were
dated the date of such letter (except that statements in such prior
opinion shall be deemed to relate to the Registration Statement and
the Prospectus as amended or supplemented at such Bring-Down
Delivery Date); provided further
that the obligation of the Company
under this subsection (n) shall be deferred during any Suspension
Period and shall recommence upon the termination of such Suspension
Period.
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(o) Upon
commencement of the offering of the Shares under this Agreement, to
furnish or cause to be furnished forthwith to the Manager a written
opinion letter of each of (i) ▇▇▇▇▇▇ LLP, U.S. intellectual
property counsel for the Company and (ii) ▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Israeli intellectual property counsel for the Company, in
form and substance satisfactory to the Manager.
(p) At
or promptly after each Bring-Down Delivery Date (and upon
recommencement of the offering of the Shares under this Agreement
following a Suspension Period), ▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the
Manager, shall deliver a negative assurance letter, dated and
delivered as of such Bring-Down Delivery Date, in form and
substance satisfactory to the Manager; provided that the obligation under this subsection (p)
shall be deferred during any Suspension Period and shall recommence
upon the termination of such Suspension Period.
(q) Upon
commencement of the offering of the Shares under this Agreement
(and upon recommencement of the offering of the Shares under this
Agreement following a Suspension Period), and or promptly after
each date that (i) the Registration Statement or the Prospectus
shall be amended or supplemented to include additional or amended
financial information, (ii) the Company shall file an annual report
on Form 10-K or a quarterly report on Form 10-Q, (iii) there is
filed with the Commission any document (other than an annual report
on Form 10-K or a quarterly report on Form 10-Q) incorporated by
reference into the Prospectus which contains financial information,
and (iv) the Manager shall make a reasonable request therefor, to
cause the Accountants, or other independent accountants
satisfactory to the Manager, forthwith to furnish to the Manager a
letter (“Comfort
Letter”), dated the date
of the commencement of the offering, the date of effectiveness of
such amendment, the date of filing of such supplement or other
document with the Commission, as the case may be, in form and
substance satisfactory to the Manager, of the same tenor as the
letter referred to in Section 6(d) of this Agreement but modified
to relate to the Registration Statement and the Prospectus, as
amended and supplemented to the date of such letter;
provided
that the obligation of the Company
under this subsection (q) shall be deferred during any Suspension
Period and shall recommence upon the termination of such Suspension
Period.
(r) That
the Company acknowledges that the Manager may trade in Common
Shares for the Manager’s own account and for the account of
its clients at the same time as sales of the Shares occur pursuant
to this Agreement; provided, that such activity of the Manager is conducted in
compliance with Regulation M under the Exchange
Act.
(s) If,
to the knowledge of the Company, any condition set forth in Section
6(a) or 6(h) hereof shall not have been satisfied on the applicable
Settlement Date, to offer to any person who has agreed to purchase
the Shares from the Company as the result of an offer to purchase
solicited by the Manager the right to refuse to purchase and pay
for such Shares.
(t) To
disclose in its quarterly reports on Form 10-Q and in its annual
report on Form 10-K the number of the Shares sold through or to the
Manager under this Agreement, the Net Proceeds to the Company and
the compensation paid to the Manager by the Company with respect to
sales of the Shares pursuant to this Agreement during the period
covered by the report.
(u) At
each Bring-Down Delivery Date, to conduct a due diligence session,
in form and substance, satisfactory to the Manager, which shall
include representatives of the management and the accountants of
the Company.
20
(v) To
ensure that, prior to instructing the Manager to sell Shares, the
Company shall have obtained all necessary corporate authority for
the offer and sale of such Shares.
(w) If,
immediately prior to the third anniversary of the effectiveness of
the Registration Statement, any of the Shares remain unsold
hereunder, the Company will, prior to such third anniversary, file
a new prospectus supplement (the “New Prospectus
Supplement”) relating to
the Shares to its subsequent registration statement on Form S-3
(the “Subsequent Registration
Statement”), and will
take all other reasonable actions necessary or appropriate to
permit the offering and sale of the Shares to continue as
contemplated in the expired registration statement relating to such
Shares and this Agreement. Upon filing of the New Prospectus
Supplement, except where the context otherwise requires, references
herein to the “Registration Statement” shall be deemed
to refer to the Subsequent Registration Statement, and references
herein to the “Prospectus Supplement” shall be deemed
to refer to the New Prospectus Supplement.
SECTION
5: Payment of
Expenses. Except as otherwise
agreed in writing among the Company and the Manager, the Company
agrees, whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, to pay all of the
Company’s expenses incident to the performance of its
obligations hereunder, including, but not limited to, such costs,
expenses, fees and taxes in connection with (i) the preparation and
filing of the Registration Statement, the Base Prospectus, the
Prospectus Supplement, the Prospectus and any amendments or
supplements thereto, and the printing and furnishing of copies of
each such document to the Manager (including costs of mailing and
shipment), (ii) the registration, issue, sale and delivery of the
Shares including any stock or transfer taxes and stamp or similar
duties payable upon the sale, issuance or delivery of the Shares,
(iii) the producing, word processing and/or printing of this
Agreement, any Powers of Attorney and any closing documents
(including compilations thereof) and the reproduction and/or
printing and furnishing of copies of each such document to the
Manager (including costs of mailing and shipment), (iv) the
qualification of the Shares for offering and sale under state laws
and the determination of their eligibility for investment under
state or foreign law as aforesaid and the printing and furnishing
of copies of any blue sky surveys to the Manager, (v) the listing
of the Shares on Nasdaq, (vi) any filing for review of the public
offering of the Shares by FINRA, including the reasonable legal
fees and disbursements of counsel for the Manager relating to FINRA
matters and (vii) the reasonable fees and disbursements of the
Company’s counsel and of the Company’s accountants. The
Manager will pay all of its out-of-pocket costs and expenses
incurred in connection with entering into this Agreement and the
transactions contemplated by this Agreement, including, without
limitation, travel, reproduction, printing and similar expenses;
provided, however, that the Company will reimburse (x) all fees,
costs and expenses of external counsel to the Manager, in an amount
of up to $50,000 USD in the aggregate, and (y) the filing fees and
expenses in connection with filings with the FINRA Corporate
Financing Department, upon request from time to
time.
SECTION
6: Conditions of the
Manager’s Obligations.
The obligations of the Manager are subject to (i) the accuracy of
the representations and warranties of the Company as of each
Representation Date, (ii) the performance by the Company of its
obligations hereunder and (iii) to the following additional
conditions precedent.
(a) (i)
No stop order with respect to the effectiveness of the Registration
Statement shall have been issued under the Act or proceedings
initiated under Section 8(d) or 8(e) of the Act, and no order
directed at or in relation to any document incorporated by
reference therein and no order preventing or suspending the use of
the Prospectus has been issued by the Commission, and no suspension
of the qualification of the Shares for offer or sale in any
jurisdiction, or, to the knowledge of the Company or the Manager,
of the initiation or threatening in writing of any proceedings for
any of such purposes, has occurred; (ii) the Registration Statement
and all amendments thereto shall not contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; (iii) neither the Base Prospectus nor the Prospectus,
and no amendment or supplement thereto, shall include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading; and
(iv) no Permitted Free Writing Prospectus and no amendment or
supplement thereto, shall include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they are made, not misleading.
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(b) Subsequent
to the respective dates as of which information is given in the
Registration Statement, the Base Prospectus and the Prospectus,
there shall not have been any Material Adverse Effect, in the
judgment of the Manager.
(c) On
every date specified in Section 4(n) hereof, the Manager shall have
received an opinion and, as applicable, the negative assurance
letter of each Company Counsel, in form satisfactory to the
Manager, with respect to the matters set forth in
Exhibit
A hereto, dated as of such
date.
(d) On
every date specified in Section 4(q) hereof, the Manager shall have
received from the Accountants, in form and substance satisfactory
to the Manager, a Comfort Letter, dated as of such
date.
(e) On
every date specified in Section 4(m) hereof, the Manager shall have
received a certificate to the effect that (i) the representations
and warranties of the Company as set forth in this Agreement are
true and correct as of the Bring-Down Delivery Date, (ii) the
Company has performed its obligations under this Agreement that it
is required to perform on or prior to such Bring-Down Delivery
Date, and (iii) the conditions set forth in paragraphs (a) and
(b) of Section 6 hereof have been met. The certificate shall also
state that the Shares have been duly and validly authorized by the
Company, that all company action required to be taken for the
issuance and sale of the Shares has been validly and sufficiently
taken, and that the Company’s board of directors, or a duly
authorized committee thereof, has not revoked, rescinded or
otherwise modified or withdrawn such authorization.
(f) On
every date specified in Section 4(p) hereof, the Manager shall have
received a negative assurance letter of ▇▇▇▇▇ ▇▇▇▇ LLP, counsel to
the Manager, in form and substance satisfactory to the Manager,
dated as of such date.
(g) All
filings with the Commission required by Rule 424 under the Act to
have been filed by any Settlement Date shall have been made within
the applicable time period prescribed for such filing by Rule
424.
(h) The
Shares shall have been approved for listing on Nasdaq, subject only
to notice of issuance at or prior to the Settlement
Date.
SECTION
7: Indemnification and
Contribution.
(a) The
Company agrees to indemnify, defend and hold harmless the Manager,
its partners, employees, agents, members, directors and officers,
any person who controls the Manager within the meaning of Section
15 of the Act or Section 20 of the Exchange Act and any
“affiliate” (within the meaning of Rule 405 under the
Act) of the Manager that has, or is alleged to have, participated
in the distribution of Shares, and the successors and assigns of
all the foregoing persons, from and against any loss, damage,
expense, liability or claim (including, without limitation, the
reasonable cost of investigation and any legal fees and other
expenses reasonably incurred in connection with any suit, action,
investigation or proceeding or any claim asserted), joint or
several, which the Manager or any such person may incur under the
Act, the Exchange Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based
upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment
thereof by the Company) or arises out of or is based upon any
omission or alleged omission to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained
in, and in conformity with information furnished in writing by or
on behalf of the Manager to the Company expressly for use in, the
Registration Statement or arises out of or is based upon any
omission or alleged omission to state a material fact in the
Registration Statement in connection with such information, which
material fact was not contained in such information and which
material fact was required to be stated in such Registration
Statement or was necessary to make such information not misleading
or (ii) any untrue statement or alleged untrue statement of a
material fact included in any Prospectus (the term Prospectus for
the purpose of this Section 7 being deemed to include the Base
Prospectus, the Prospectus Supplement, the Prospectus and any
amendments or supplements to the foregoing), in any “issuer
information” (as defined in Rule 433 under the Act) of the
Company, in any road show as defined under Rule 433(h) under the
Act (a “road show”) or in any Free Writing Prospectus, or
that arises out of or is based upon any omission or alleged
omission to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, except, with respect to such
Prospectus, insofar as any such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in, and in
conformity with information furnished in writing by or on behalf of
the Manager to the Company expressly for use in, such Prospectus or
arises out of or is based upon any omission or alleged omission to
state a material fact in such Prospectus in connection with such
information, which material fact was not contained in such
information and which material fact was necessary in order to make
the statements in such information, in the light of the
circumstances under which they were made, not
misleading.
22
If any
action, suit, inquiry or proceeding (together, a
“Proceeding”) is
brought against the Manager or any such person in respect of which
indemnity may be sought against the Company pursuant to the
foregoing paragraph, the Manager or such person shall promptly
notify the Company in writing of the institution of such Proceeding
and the Company shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; provided,
however, that the omission to so notify the Company shall not
relieve the Company from any liability which the Company may have
to the Manager or any such person or otherwise except to the extent
the Company was materially prejudiced by such omission. The Manager
or such person shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of the Manager or of such person unless the
employment of such counsel shall have been authorized in writing by
the Company in connection with the defense of such Proceeding or
the Company shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to have charge of the
defense of such Proceeding or such indemnified party or parties
shall have reasonably concluded that there may be defenses
available to it or them which are different from, additional to or
in conflict with those available to the Company (in which case the
Company shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties), in any
of which events such fees and expenses shall be borne by the
Company, and paid as incurred (it being understood, however, that
the Company shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same
jurisdiction representing the indemnified parties who are parties
to such Proceeding). The Company shall not be liable for any
settlement of any Proceeding effected without its written consent
but, if settled with the written consent of the Company, the
Company agrees to indemnify and hold harmless the Manager and any
such person from and against any loss or liability by reason of
such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested the Company to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then the
Company agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt
by the Company of the aforesaid request, (ii) the Company shall not
have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least
30 days’ prior notice of its intention to settle. The Company
shall not, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened
Proceeding in respect of which any indemnified party is or may be a
party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that
are the subject matter of such Proceeding and does not include any
statement as to or an admission of fault, culpability or a failure
to act, by or on behalf of such indemnified party.
(b) The
Manager agrees to indemnify and hold harmless the Company and its
respective partners, employees, agents, members, directors and each
officer that signed the Registration Statement, each person, if
any, who controls the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons from and against any loss,
damage, expense, liability or claim (including, without limitation,
the reasonable cost of investigation and any legal fees and other
expenses reasonably incurred in connection with any suit, action,
investigation or proceeding or any claim asserted), joint or
several, which the Company or any such person may incur under the
Act, the Exchange Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based
upon any untrue statement or alleged untrue statement of a material
fact made in reliance upon and in conformity with any information
relating to the Manager furnished in writing by or on behalf of the
Manager to the Company expressly for use with reference to the
Manager in the Prospectus or arising out of or is based upon any
omission or alleged omission to state a material fact therein in
connection with such information, which material fact was not
contained in such information and which material fact was necessary
in order to make the statements in such information, in the light
of the circumstances under which they were made, not misleading, it
being understood and agreed that the only such information
furnished by the Manager consists of the following information in
the Prospectus furnished on behalf of the Manager: the second
sentence of the eighth paragraph under the caption “Plan of
Distribution”.
23
If any
Proceeding is brought against the Company or any such person in
respect of which indemnity may be sought against the Manager
pursuant to the foregoing paragraph, such Company or such person
shall promptly notify the Manager in writing of the institution of
such Proceeding and the Manager shall assume the defense of such
Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and
expenses; provided, however, that the omission to so notify the
Manager shall not relieve the Manager from any liability which the
Manager may have to the Company or any such person or otherwise.
The Company or such person shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of the Company or such person unless the
employment of such counsel shall have been authorized in writing by
the Manager in connection with the defense of such Proceeding or
the Manager shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to have charge of the
defense of such Proceeding or such indemnified party or parties
shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to
or in conflict with those available to the Manager (in which case
the Manager shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties, but the
Manager may employ counsel and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense
of the Manager), in any of which events such fees and expenses
shall be borne by the Manager and paid as incurred (it being
understood, however, that the Manager shall not be liable for the
expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding). The Manager shall not
be liable for any settlement of any such Proceeding effected
without the written consent of the Manager but, if settled with the
written consent of the Manager or if there be a final judgment for
the plaintiff, the Manager agrees to indemnify and hold harmless
the Company and any such person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall
have requested the Manager to reimburse the indemnified party for
fees and expenses of counsel as contemplated by the second sentence
of this paragraph, then the Manager agrees that it shall be liable
for any settlement of any Proceeding effected without its written
consent if (i) such settlement is entered into more than 60
business days after receipt by the Manager of the aforesaid
request, (ii) the Manager shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the
Manager at least 30 days’ prior notice of its intention to
settle. The Manager shall not, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is
a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that
are the subject matter of such Proceeding and does not include any
statement as to or an admission of fault, culpability or a failure
to act, by or on behalf of such indemnified party.
(c) If
the indemnification provided for in this Section 7 is unavailable
to an indemnified party under subsections (a) and (b) of this
Section 7 or insufficient to hold an indemnified party harmless in
respect of any losses, damages, expenses, liabilities or claims
referred to therein, then the indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result
of such losses, damages, expenses, liabilities or claims (i) in
such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Manager, on the
other hand, from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also
the relative fault of the Company, on the one hand, and of the
Manager, on the other, in connection with the statements or
omissions which resulted in such losses, damages, expenses,
liabilities or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on
the one hand, and the Manager, on the other, shall be deemed to be
in the same respective proportions as the total proceeds from the
offering (net of commissions paid hereunder but before deducting
expenses) received by the Company, and the total commissions
received by the Manager hereunder, bear to the aggregate public
offering price of the Shares. The relative fault of the Company, on
the one hand, and of the Manager, on the other, shall be determined
by reference to, among other things, whether the untrue statement
or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company or
by the Manager and the party’s relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a
result of the losses, damages, expenses, liabilities and claims
referred to in this subsection (c) shall be deemed to include any
legal or other fees or expenses reasonably incurred by such party
in connection with investigating, preparing to defend or defending
any Proceeding.
24
(d) The
Company and the Manager agree that it would not be just and
equitable if contributions pursuant to this Section 7 were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to in subsection (c) above. Notwithstanding
the provisions of this Section 7, no Manager shall be required to
contribute any amount in excess of commissions received by it under
this Agreement. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled
to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The
Company and the Manager agree promptly to notify each other of the
commencement of any Proceeding against it and, in the case of the
Company, against any of the Company’s officers or directors
in connection with the issuance and sale of the Shares, or in
connection with the Registration Statement, the Base Prospectus or
the Prospectus.
SECTION
8: Representations and
Agreements to Survive Delivery.
The indemnity and contribution agreements contained in Section 7
hereof and the covenants, warranties and representations of the
Company contained in this Agreement or in certificates delivered
pursuant hereto shall remain in full force and effect regardless of
any investigation made by or on behalf of the Manager, its
partners, directors or officers or any person (including each
partner, officer or director of such person) who controls the
Manager within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, or by or on behalf of the Company, its
directors or officers or any person who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, and shall survive any termination of this Agreement or the
issuance and delivery of the Shares.
SECTION
9: Termination.
(a) The
Company shall have the right, by giving written notice as
hereinafter specified, to terminate this Agreement in its sole
discretion at any time. Any such termination shall be without
liability of any party to any other party, except that (i) with
respect to any pending sale, through the Manager for the Company,
the obligations of the Company, including in respect of
compensation of the Manager, shall remain in full force and effect
notwithstanding the termination and (ii) the provisions of Sections
5, 7, 8, 10, 11, 12, 18 and 20 hereof shall remain in full force
and effect notwithstanding such termination.
(b) The
Manager shall have the right, by giving written notice as
hereinafter specified, to terminate the provisions of this
Agreement relating to the solicitation of offers to purchase the
Shares in its sole discretion at any time. Any such termination
shall be without liability of any party to any other party, except
that the provisions of Sections 5, 7, 8, 10, 11, 12, 18 and 20
hereof shall remain in full force and effect notwithstanding such
termination.
(c) This
Agreement shall remain in full force and effect unless terminated
pursuant to Sections 9(a) or (b) above or otherwise by mutual
agreement of the parties; provided that any such termination by mutual agreement
shall in all cases be deemed to provide that Sections 5, 7 and 8
hereof shall remain in full force and effect.
(d) Any
termination of this Agreement shall be effective on the date
specified in such notice of termination; provided that such termination shall not be effective until
the close of business on the date of receipt of such notice by the
Manager or the Company, as the case may be. If such termination
shall occur prior to the Settlement Date for any sale of the
Shares, such sale shall settle in accordance with the provisions of
Section 3(a)(vi) hereof.
25
(e) Unless
earlier terminated pursuant to this Section 9, this Agreement shall
automatically terminate upon the issuance and sale of all of the
Shares through the Manager on the terms and subject to the
conditions set forth herein, except that Sections 5, 7, 8, 10, 11,
12, 18 and 20 and shall remain in full force and
effect.
SECTION
10: Notices.
Except as otherwise herein provided, all statements, requests,
notices and agreements under this Agreement shall be in writing and
delivered by hand, overnight courier, mail or transmitted by any
standard form of telecommunication and, if to the Manager, shall be
sufficient in all respects if delivered or sent to RBC Capital
Markets, LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Equity Capital Markets, Fax: (▇▇▇) ▇▇▇-▇▇▇▇; and,
if sent to the Company, shall be delivered or sent to Edesa
Biotech, Inc., ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇).
Each party to this Agreement may change such address for notices by
sending to the parties to this Agreement written notice of a new
address for such purpose.
SECTION
11: Parties at
Interest. The Agreement herein
set forth has been and is made solely for the benefit of the
Company and the Manager and, to the extent provided in Section 7
hereof, the controlling persons, directors and officers referred to
in such section, and their respective successors, assigns, heirs,
personal representatives and executors and administrators. No other
person, partnership, association or corporation (including a
purchaser, as such purchaser, through or from the Manager) shall
acquire or have any right under or by virtue of this
Agreement.
SECTION
12: No Fiduciary
Relationship. The Company
hereby acknowledges that the Manager is acting solely as sales
agent and/or principal in connection with the purchase and sale of
the Shares. The Company further acknowledges that the Manager is
acting pursuant to a contractual relationship created solely by
this Agreement entered into on an arm’s length basis, and in
no event do the parties intend that the Manager act or be
responsible as a fiduciary to the Company, the management,
stockholders or creditors or any other person in connection with
any activity that the Manager may undertake or have undertaken in
furtherance of the purchase and sale of the Company’s
securities, either before or after the date hereof. The Manager
hereby expressly disclaims any fiduciary or similar obligations to
the Company, either in connection with the transactions
contemplated by this Agreement or any matters leading up to such
transactions, and the Company hereby confirms its understanding and
agreement to that effect. The Company and the Manager agree that
each is responsible for making its own independent judgments with
respect to any such transactions and that any opinions or views
expressed by the Manager to the Company regarding such
transactions, including, but not limited to, any opinions or views
with respect to the price or market for the Company’s
securities, do not constitute advice or recommendations to the
Company. The Company hereby waives and releases, to the fullest
extent permitted by law, any claims that the Company may have
against the Manager with respect to any breach or alleged breach of
any fiduciary or similar duty to the Company in connection with the
transactions contemplated by this Agreement or any matters leading
up to such transactions.
SECTION
13: Press Releases and
Disclosure. The Company may
issue a press release in compliance with Rule 134 under the Act
describing the material terms of the transactions contemplated
hereby as soon as practicable following the date hereof and may
file with the Commission a Current Report on Form 8-K describing
the material terms of the transaction contemplated hereby, and the
Company shall consult with the Manager prior to making such
disclosures, and the parties shall use commercially reasonable
efforts, acting in good faith, to agree upon the text of such
disclosure that is reasonably satisfactory to all parties. No party
hereto shall issue thereafter any press release or like public
statement (including, without limitation, any disclosure required
in reports filed with the Commission pursuant to the Exchange Act)
related to this Agreement or any of the transactions contemplated
hereby without the prior written approval of the other party,
except as may be necessary or appropriate in the opinion of the
party seeking to make disclosure to comply with the requirements of
applicable law or Commission or Nasdaq rules. If any such press
release or like public statement is so required, the party making
such disclosure shall consult with the other party prior to making
such disclosure, and the parties shall use commercially reasonable
efforts, acting in good faith, to agree upon the text of such
disclosure that is reasonably satisfactory to all
parties.
26
SECTION
14: Adjustments for Share
Splits. The parties acknowledge
and agree that all share-related numbers contained in this
Agreement shall be adjusted to take into account any share split,
share dividend or similar event effected with respect to the
Shares.
SECTION
15: Entire
Agreement. This Agreement
constitutes the entire agreement and supersedes all other prior and
contemporaneous agreements and undertakings, both written and oral,
among the parties hereto with regard to the subject matter
hereof.
SECTION
16: Counterparts.
This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same
agreement among the parties.
SECTION
17: Electronic
Signature. The words
“execution,” “signed,”
“signature,” and words of like import in this Agreement
or in any amendment or other modification hereof (including waivers
and consents) shall be deemed to include electronic signatures or
the keeping of records in electronic form, each of which shall be
of the same legal effect, validity or enforceability as a manually
executed signature or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in
Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based
on the Uniform Electronic Transactions Act.
SECTION
18: Law;
Construction. This Agreement
and any claim, counterclaim or dispute of any kind or nature
whatsoever arising out of or in any way relating to this Agreement,
directly or indirectly, shall be governed by, and construed in
accordance with, the internal laws of the State of New
York.
SECTION
19: Headings.
The Section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this
Agreement.
SECTION
20: Applicable Law and
Submission to Jurisdiction.
This Agreement and any claim, controversy or dispute arising under
or related to this Agreement or the transactions contemplated
hereby (including without limitation, any claims sounding in
equity, statutory law, contract law or tort law arising out of the
subject matter hereof) shall be governed by and construed in
accordance with the laws of the State of New York, without giving
effect to its conflicts of laws doctrine. Any legal suit, action or
proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in the federal
courts of the United States of America located in the Borough of
Manhattan in the City of New York or the courts of the State of New
York in each case located in the Borough of Manhattan in the City
of New York (collectively, the “Designated
Courts”), and each party
irrevocably submits to the exclusive jurisdiction (except for
proceedings instituted in regard to the enforcement of a judgment
of any such court, as to which such jurisdiction is non-exclusive)
of such courts in any such suit, action or proceeding. Service of
any process, summons, notice or document by mail to such
party’s address set forth above shall be effective service of
process for any suit, action or other proceeding brought in any
such court. The parties irrevocably and unconditionally waive any
objection to the laying of venue of any suit, action or other
proceeding in the Designated Courts and irrevocably and
unconditionally waive and agree not to plead or claim in any such
court that any such suit, action or other proceeding brought in any
such court has been brought in an inconvenient forum. Each party
not located in the United States has irrevocably appointed
California Corporate Agents, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ as its agent to receive service of process or other legal
summons for purposes of any such suit, action or proceeding that
may be instituted in any state or federal court in the Borough of
Manhattan in the City of New York.
27
To
the extent that the Company has or hereafter may acquire any
immunity (sovereign or otherwise) from the jurisdiction of any
court of (i) Canada or the province of Ontario or British Columbia,
or any political subdivision thereof, (ii) the United States or the
State of New York or California, (iii) any jurisdiction in which it
owns or leases property or assets or from any legal process
(through service of notice, attachment prior to judgment,
attachment in aid of execution, execution, set-off or otherwise)
with respect to themselves or their respective property and assets
or this Agreement, the Company hereby irrevocably waives such
immunity in respect of its obligations under this Agreement to the
fullest extent permitted by applicable law.
SECTION
21: Successors and
Assigns. This Agreement shall
be binding upon the Company and the Manager and their respective
successors and assigns and any successor or assign of any
substantial portion of the Company’s and the Manager’s
respective businesses and/or assets.
SECTION
22: Recognition of the
U.S. Special Resolution Regimes.
(a) In
the event that the Manager qualifies as a Covered Entity and
becomes subject to a proceeding under a U.S. Special Resolution
Regime, the transfer from the Manager of this Agreement, and any
interest and obligation in or under this Agreement, will be
effective to the same extent as the transfer would be effective
under the U.S. Special Resolution Regime if this Agreement, and any
such interest and obligation, were governed by the laws of the
United States or a state of the United States.
(b) In
the event that the Manager qualifies as a Covered Entity and
becomes subject, or a BHC Act Affiliate of the Manager becomes
subject, to a proceeding under a U.S. Special Resolution Regime,
Default Rights under this Agreement that may be exercised against
the Manager are permitted to be exercised to no greater extent than
such Default Rights could be exercised under the U.S. Special
Resolution Regime if this Agreement were governed by the laws of
the United States or a state of the United States.
For
purposes of this Section 22: (A) a “BHC Act Affiliate”
has the meaning assigned to the term “affiliate” in,
and shall be interpreted in accordance with, 12 U.S.C. §
1841(k); (B) “Covered Entity” means any of the
following: (i) a “covered entity” as that term is
defined in, and interpreted in accordance with, 12 C.F.R. §
252.82(b); (ii) a “covered bank” as that term is
defined in, and interpreted in accordance with, 12 C.F.R. §
47.3(b); or (iii) a “covered FSI” as that term is
defined in, and interpreted in accordance with, 12 C.F.R. §
382.2(b); (C) “Default Right” has the meaning assigned
to that term in, and shall be interpreted in accordance with, 12
C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and (D)
“U.S. Special Resolution Regime” means each of (i) the
Federal Deposit Insurance Act and the regulations promulgated
thereunder and (ii) Title II of the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform
and Consumer Protection Act and the regulations promulgated
thereunder.
SECTION
23: Miscellaneous.
Securities sold, offered or recommended by the Manager are not
deposits, are not insured by the Federal Deposit Insurance
Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
Lending affiliates of the Manager have or may in the future have
lending relationships with issuers of securities underwritten or
privately placed by the Manager. Prospectuses and other disclosure
documents for securities underwritten or privately placed by the
Manager may disclose the existence of any such lending
relationships and whether the proceeds of the issue may be used to
repay debts owed to affiliates of the Manager.
[Signature
Pages Follow.]
28
If the
foregoing correctly sets forth the understanding between the
Company and the Manager, please so indicate in the space provided
below for that purpose, whereupon this Agreement and your
acceptance shall constitute a binding agreement between the Company
and the Manager. Alternatively, the execution of this Agreement by
the Company and its acceptance by or on behalf of the Manager may
be evidenced by an exchange of telegraphic or other written
communications.
Very
truly yours,
By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title: Chief
Executive Officer
ACCEPTED
as of the date
first
above written
RBC CAPITAL MARKETS, LLC
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title:Managing
Director
Schedule A
Permitted Free Writing Prospectuses
None.
31
Schedule B
Authorized Company Representatives
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, MD
|
Chief
Executive Officer
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇, PhD
|
President
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, CPA
|
Chief
Financial Officer
|
32
Schedule
C
Company Parties
|
Name
|
Jurisdiction
of Organization
|
Jurisdictions
in which Qualified to do Business as Foreign Entity
|
|
|
British
Columbia, Canada
|
None
|
|
Edesa
Biotech Research, Inc.
|
Ontario,
Canada
|
None
|
|
Stellar
Biotechnologies, Inc.
|
California,
United States
|
None
|
33
Exhibit 3(a)(i)
|
From:
|
[
]
|
|
Cc:
|
[
]
|
|
To:
|
[
]
|
|
Subject:
|
At-the-Market
Offering
|
Ladies
and Gentlemen:
Pursuant
to the terms and subject to the conditions contained in the Equity
Distribution Agreement among Edesa Biotech, Inc., a company
incorporated pursuant to the laws of the Province of British
Columbia, Canada (the “Company”) and RBC Capital Markets,
LLC (the “Manager”) dated September 28, 2020
(the “Agreement”), I hereby request on
behalf of the Company that the Manager sell up to [●] common
shares of the Company, without par value (the “Shares”) at a minimum market price
of $[●] per Share between [ ], 20[ ] and [ ], 20[ ]. [There
shall be no limitation on the number of Shares that may be sold on
any one (1) day.][No more than [●] Shares may be sold on any
one (1) day.] [Other sales parameters]
Very
truly yours,
By:
Name:
[________________]
Title:
[________________]
34
Exhibit A
OPINION OF COMPANY COUNSEL
To be
provided based on agreed precedent.
35
NEGATIVE ASSURANCE BY COMPANY COUNSEL
To be
provided based on agreed precedent
36