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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported):
November 3, 2023
ESSA Pharma Inc.
(Exact name of registrant as specified in
its charter)
British Columbia, Canada
(State or other jurisdiction of incorporation) |
001-37410
(Commission File Number) |
98-1250703
(IRS Employer Identification No.) |
|
|
|
Suite 720, 999 West Broadway, Vancouver,
British Columbia, Canada
(Address of principal executive offices) |
V5Z 1K5
(Zip Code) |
Registrant’s telephone number, including
area code: (778) 331-0962
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
|
Trading
Symbol(s) |
|
Name of each exchange on which registered |
Common Shares, no par value |
|
EPIX |
|
Nasdaq Capital Market |
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01 |
Entry into a Material Definitive Agreement. |
On November 3, 2023, ESSA Pharma Inc. (the
“Company”) entered into an Open Market Sale AgreementSM (the “Agreement”) with Jefferies LLC (“Jefferies”),
pursuant to which the Company may, from time to time in its sole discretion, issue and sell through Jefferies, acting as sales agent,
or directly to Jefferies, acting as principal, shares of the Company’s common stock, no par value (“common stock”) having
an aggregate offering price of up to $50,000,000. The issuance and sale, if any, of shares of common stock by the Company under the Agreement
(the “Placement Shares”) will be made pursuant to the Company’s effective registration statement on Form S-3 (No. 333-274584)
and the prospectus supplement, dated November 3, 2023, related thereto.
Pursuant to the Agreement, Jefferies may sell
the Placement Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of
the Securities Act of 1933, as amended (the “Securities Act”). Jefferies will use commercially reasonable efforts consistent
with its normal sales and trading practices to sell the Placement Shares from time to time, based upon instructions from the Company (including
any price or size limits or other customary parameters or conditions the Company may impose). The Company may also sell Placement Shares
to Jefferies as principal at a price agreed upon by the parties at each relevant time Placement Shares are sold pursuant to the Agreement.
The Company will pay Jefferies a commission of
3.0% of the gross proceeds of any Placement Shares sold pursuant to the Agreement.
The Company is not obligated to make any sales
of Placement Shares under the Agreement. The offering of Placement Shares pursuant to the Agreement will terminate upon the earlier to
occur of (i) the issuance and sale, through Jefferies, of all Placement Shares subject to the Agreement and (ii) the termination
of the Agreement in accordance with its terms.
The Agreement contains representations, warranties
and covenants that are customary for transactions of this type. In addition, the Company has agreed to indemnify Jefferies against certain
liabilities, including liabilities under the Securities Act or the Securities Exchange Act of 1934, as amended.
The foregoing description of the Agreement does
not purport to be complete and is qualified in its entirety by reference to the full text of the Agreement, a copy of which is filed herewith
as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference.
This Current Report on Form 8-K shall not
constitute an offer to sell or the solicitation of an offer to buy the securities discussed herein, nor shall there be any offer, solicitation
or sale of the securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such jurisdiction.
Item 9.01 | Financial Statements and Exhibits. |
| |
| (d) Exhibits |
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
ESSA PHARMA INC. |
|
(Registrant) |
Date: November 6, 2023 |
|
|
|
|
By: |
/s/ David Wood |
|
|
Name: David Wood |
|
|
Title: Chief Financial Officer |
Exhibit 1.1
Execution Version
OPEN
MARKET SALE AGREEMENTSM
November 3, 2023
JEFFERIES LLC
520 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
ESSA
Pharma Inc., a company incorporated under the laws of the Province of British Columbia (the “Company”), proposes, subject
to the terms and conditions stated herein, to issue and sell from time to time through Jefferies LLC, as sales agent and/or principal
(the “Agent”), the Company’s common shares, without par value (the “Common Shares”), having
an aggregate offering price of up to US$50,000,000 on the terms set forth in this agreement (this “Agreement”).
Section 1. DEFINITIONS
(a) Certain
Definitions. For purposes of this Agreement, capitalized terms used herein and not otherwise defined shall have the following respective
meanings:
“Affiliate”
of a Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under
common control with, such first-mentioned Person. The term “control” (including the terms “controlling,” “controlled
by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Agency Period”
means the period commencing on the date of this Agreement and expiring on the earliest to occur of (x) the date on which the Agent
shall have placed the Maximum Program Amount pursuant to this Agreement and (y) the date this Agreement is terminated pursuant to
Section 7.
“Commission”
means the United States Securities and Exchange Commission.
“Exchange Act”
means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder.
“Floor Price”
means the minimum price set by the Company in the Issuance Notice below which the Agent shall not sell Shares during the applicable period
set forth in the Issuance Notice, which may be adjusted by the Company at any time during the period set forth in the Issuance Notice
by delivering written notice of such change to the Agent and which in no event shall be less than US$1.00 without the prior written consent
of the Agent, which may be withheld in the Agent’s sole discretion.
SM
“Open Market Sale Agreement” is a service mark of Jefferies LLC
“Issuance Amount”
means the aggregate Sales Price of the Shares to be sold by the Agent pursuant to any Issuance Notice.
“Issuance Notice”
means a written notice delivered to the Agent by the Company in accordance with this Agreement in the form attached hereto as Exhibit A
that is executed by its Chief Executive Officer, President or Chief Financial Officer.
“Issuance Notice
Date” means any Trading Day during the Agency Period that an Issuance Notice is delivered pursuant to Section 3(b)(i).
“Issuance Price”
means the Sales Price less the Selling Commission.
“Maximum Program
Amount” means Common Shares with an aggregate Sales Price of the lesser of (a) the number or dollar amount of Common Shares
registered under the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) the number
or dollar amount of Common Shares permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable),
or (c) the number or dollar amount of Common Shares for which the Company has filed a Prospectus (as defined below).
“Person”
means an individual or a corporation, partnership, limited liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, governmental authority or other entity of any kind.
“Principal Market”
means the Nasdaq Capital Market or such other United States securities exchange on which the Common Shares, including any Shares, are
then listed.
“Sales Price”
means the actual sale execution price of each Share placed by the Agent pursuant to this Agreement.
“Securities Act”
means the United States Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder.
“Selling Commission”
means three percent (3%) of the gross proceeds of Shares sold pursuant to this Agreement, or as otherwise agreed between the Company and
the Agent with respect to any Shares sold pursuant to this Agreement.
“Settlement
Date” means the second business day following each Trading Day during the period set forth in the Issuance Notice on
which Shares are sold pursuant to this Agreement, when the Company shall deliver to the Agent the amount of Shares sold on such Trading
Day and the Agent shall deliver to the Company the Issuance Price received on such sales.
“Shares”
shall mean the Company’s Common Shares issued or issuable pursuant to this Agreement.
“Trading Day”
means any day on which the Principal Market is open for trading.
Section 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and
warrants to, and agrees with, the Agent that as of (1) the date of this Agreement, (2) each Issuance Notice Date, (3) each
Settlement Date, (4) each Triggering Event Date (as defined below) and (5) as of each Time of Sale (as defined below) (each
of the times referenced above is referred to herein as a “Representation Date”), except as may be disclosed in the
Prospectus (including any documents incorporated by reference therein and any supplements thereto) on or before a Representation Date:
(a) Registration
Statement. The Company has prepared and filed with the Commission a shelf registration statement on Form S-3 (File No. 333-274584)
that contains a base prospectus. Such registration statement registers the issuance and sale by the Company of the Shares under the Securities
Act. The Company may file one or more additional registration statements from time to time that will contain a base prospectus and related
prospectus or prospectus supplement, if applicable, with respect to the Shares. Except where the context otherwise requires, such registration
statement(s), including any information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, including all
financial statements, exhibits and schedules thereto and all documents incorporated or deemed to be incorporated therein by reference
pursuant to Item 12 of Form S-3 under the Securities Act as from time to time amended or supplemented, is herein referred to as the
“Registration Statement,” and the prospectus constituting a part of such registration statement(s), together with any
prospectus supplement filed with the Commission pursuant to Rule 424(b) under the Securities Act relating to a particular issuance
of the Shares, including all documents incorporated or deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3
under the Securities Act, in each case, as from time to time amended or supplemented, is referred to herein as the “Prospectus,”
except that if any revised prospectus is provided to the Agent by the Company for use in connection with the offering of the Shares that
is not required to be filed by the Company pursuant to Rule 424(b) under the Securities Act, the term “Prospectus”
shall refer to such revised prospectus from and after the time it is first provided to the Agent for such use. The Registration Statement
at the time it originally became effective is herein called the “Original Registration Statement.” As used in this
Agreement, the terms “amendment” or “supplement” when applied to the Registration Statement or the Prospectus
shall be deemed to include the filing by the Company with the Commission of any document under the Exchange Act after the date hereof
that is or is deemed to be incorporated therein by reference.
All
references in this Agreement to financial statements and schedules and other information which is “contained,” “included”
or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in
or otherwise deemed under the Securities Act to be a part of or included in the Registration Statement or the Prospectus, as the case
may be, as of any specified date; and all references in this Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include, without limitation, the filing of any document under the Exchange Act which is or is deemed
to be incorporated by reference in or otherwise deemed under the Securities Act to be a part of or included in the Registration Statement
or the Prospectus, as the case may be, as of any specified date.
At the time the Registration
Statement was or will be originally declared effective and at the time the Company’s most recent annual report on Form 10-K
was filed with the Commission, if later, the Company met the then-applicable requirements for use of Form S-3 under the Securities
Act. During the Agency Period, each time the Company files an annual report on Form 10-K the Company will meet the then-applicable
requirements for use of Form S-3 under the Securities Act.
(b) Compliance
with Registration Requirements. The Original Registration Statement and any Rule 462(b) Registration Statement have been
declared effective by the Commission under the Securities Act, and the Registration Statement has been or will be filed with the British
Columbia Securities Commission pursuant to Section 4(c)(ii) of BC Instrument 72-503 – Distribution of Securities outside
British Columbia (“BCI 72-503”) as soon as practicable after the Prospectus is filed with the Commission. The Company
has complied to the Commission’s satisfaction with all requests of the Commission for additional or supplemental information. No
stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement is in effect
and no proceedings for such purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened
by the Commission.
The Prospectus, when filed,
complied in all material respects with the Securities Act and, if filed with the Commission through its Electronic Data Gathering, Analysis
and Retrieval system (except as may be permitted by Regulation S-T under the Securities Act), was identical to the copy thereof delivered
to the Agent for use in connection with the issuance and sale of the Shares. Each of the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendment thereto, at the time it became effective and at all subsequent times, complied and will comply
in all material respects with the Securities Act and did not and will not contain any 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 the date of this Agreement,
the Prospectus and any Free Writing Prospectus (as defined below) considered together (collectively, the “Time of Sale Information”)
did not contain any 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. The Prospectus, as amended or supplemented, as of its date
and at all subsequent times, did not and will not contain any 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 were made, not misleading. The representations
and warranties set forth in the three immediately preceding sentences do not apply to statements in or omissions from the Registration
Statement, any Rule 462(b) Registration Statement, or any post-effective amendment thereto, or the Prospectus, or any amendments
or supplements thereto, made in reliance upon and in conformity with information relating to the Agent furnished to the Company in writing
by the Agent expressly for use therein, it being understood and agreed that the only such information furnished by the Agent to the Company
consists of the information described in Section 6 below. There are no contracts or other documents required to be described
in the Prospectus or to be filed as exhibits to the Registration Statement which have not been described or filed as required. The Registration
Statement and the offer and sale of the Shares as contemplated hereby meet the requirements of Rule 415 under the Securities Act
and comply in all material respects with said rule.
(c) Ineligible
Issuer Status. The Company is not an “ineligible issuer” in connection with the offering of the Shares pursuant to Rules 164,
405 and 433 under the Securities Act. Any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) under
the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act. Each Free
Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that
was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements
of Rule 433 under the Securities Act including timely filing with the Commission or retention where required and legending, and each
such Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the issuance and sale of the
Shares did not, does not and will not include any information that conflicted, conflicts with or will conflict with the information contained
in the Registration Statement or the Prospectus, including any document incorporated by reference therein. Except for the Free Writing
Prospectuses, if any, and electronic road shows, if any, furnished to you before first use, the Company has not prepared, used or referred
to, and will not, without your prior consent, prepare, use or refer to, any Free Writing Prospectus.
(d) Incorporated
Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus,
at the time they were filed with the Commission, complied in all material respects with the requirements of the Exchange Act, as applicable,
and, when read together with the other information in the Prospectus, do 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, in light of the circumstances under which
they were made, not misleading.
(e) Exchange
Act Compliance. The documents incorporated or deemed to be incorporated by reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, and any Free Writing Prospectus or amendment or supplement thereto complied and will comply in all material
respects with the requirements of the Exchange Act, and, when read together with the other information in the Prospectus, at the time
the Registration Statement and any amendments thereto become effective and at each Time of Sale, as the case may be, will 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 fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) Forward
Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E
of the Exchange Act) contained in the Registration Statement and the Prospectus has been made or reaffirmed without a reasonable basis
or has been disclosed other than in good faith.
(g) Statistical
and Market-Related Data. All statistical, demographic and market-related data included in the Registration Statement or the Prospectus
are based on or derived from sources that the Company believes to be reliable and accurate. To the extent required, the Company has obtained
the written consent for the use of such data from such sources.
(h) Disclosure
Controls and Procedures; Deficiencies in or Changes to Internal Control Over Financial Reporting. The Company has established and
maintains disclosure controls and procedures (as defined in Rules 13a-15 and 15d-15 under the Exchange Act), which (i) are designed
to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the Company’s
principal executive officer and its principal financial officer by others within those entities, particularly during the periods in which
the filings required to be filed with the Commission 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. Since the end of the Company’s most recent audited fiscal year, there have
been no significant deficiencies or material weaknesses in the Company’s internal control over financial reporting (whether or not
remediated) and no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control over financial reporting. The Company is not aware of any change in
its internal control over financial reporting that has occurred during its most recent fiscal quarter that has materially affected, or
is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(i) This
Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(j) Authorization
of the Shares. The Shares have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and delivered
by the Company against payment therefor pursuant to this Agreement, will be validly issued, fully paid and nonassessable, and the issuance
and sale of the Shares is not subject to any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase
the Shares.
(k) No
Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any equity
or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except
for such rights as have been duly waived.
(l) No
Material Adverse Change. Except as otherwise disclosed in the Registration Statement and the Prospectus, subsequent to the respective
dates as of which information is given in the Registration Statement and the Prospectus: (i) there has been no material adverse change,
or any development that would reasonably be expected to result in a material adverse change, in (A) the condition, financial or otherwise,
or in the earnings, business, properties, operations, operating results, assets, liabilities, or prospects whether or not arising from
transactions in the ordinary course of business, of the Company and its subsidiaries, considered as one entity or (B) the ability
of the Company to consummate the transactions contemplated by this Agreement or perform its obligations hereunder (any such change being
referred to herein as a “Material Adverse Change”); (ii) the Company and its subsidiaries, considered as one entity,
have not incurred any material liability or obligation, indirect, direct or contingent, including without limitation any losses or interference
with their business from fire, explosion, flood, earthquakes, accident or other calamity, whether or not covered by insurance, or from
any strike, labor dispute or court or governmental action, order or decree, that are material, individually or in the aggregate, to the
Company and its subsidiaries, considered as one entity, and have not entered into any transactions not in the ordinary course of business;
and (iii) there has not been any material decrease in the share capital or any material increase in any short-term or long-term indebtedness
of the Company or its subsidiaries and there has been no dividend or distribution of any kind declared, paid or made by the Company or,
except for dividends paid to the Company or other subsidiaries, by any of the Company’s subsidiaries on any class of share capital,
or any repurchase or redemption by the Company or any of its subsidiaries of any class of share capital.
(m) Independent
Accountants. Davidson & Company LLP, which has expressed its opinion with respect to the financial statements (which term
as used in this Agreement includes the related notes thereto) and supporting schedules filed with the Commission as a part of the Registration
Statement and the Prospectus, is (i) an independent registered public accounting firm as required by the Exchange Act and the rules of
the Public Company Accounting Oversight Board (“PCAOB”) (ii) independent within the meaning of applicable securities
laws (collectively, the “Canadian Securities Laws”) of each of the securities regulatory authorities in each of the
provinces of Alberta, British Columbia and Ontario (collectively, the “Canadian Qualifying Jurisdictions”), (iii) in
compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X under
the Securities Act and (iv) a registered public accounting firm as defined by the PCAOB whose registration has not been suspended
or revoked and who has not requested such registration to be withdrawn.
(n) Financial
Statements. The financial statements filed with the Commission as a part of the Registration Statement and the Prospectus present
fairly the consolidated financial position of the Company and its subsidiaries as of the dates indicated and the results of their operations,
changes in stockholders’ equity and cash flows for the periods specified. The supporting schedules included in the Registration
Statement present fairly the information required to be stated therein. Such financial statements and supporting schedules have been prepared
in conformity with generally accepted accounting principles as applied in the United States applied on a consistent basis throughout the
periods involved, except as may be expressly stated in the related notes thereto. 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. No other financial
statements or supporting schedules are required to be included in the Registration Statement or the Prospectus. All disclosures contained
in the Registration Statement and the Prospectus that constitute non-GAAP financial measures (as defined by the rules and regulations
under the Securities Act and the Exchange Act) comply with Regulation G under the Exchange Act and Item 10 of Regulation S-K under the
Securities Act, as applicable. To the Company’s knowledge, no person who has been suspended or barred from being associated with
a registered public accounting firm, or who has failed to comply with any sanction pursuant to Rule 5300 promulgated by the PCAOB,
has participated in or otherwise aided the preparation of, or audited, the financial statements, supporting schedules or other financial
data filed with the Commission as a part of the Registration Statement and the Prospectus.
(o) Company’s
Accounting System. The Company and each of its subsidiaries make and keep accurate books and records and maintain a system of internal
accounting controls designed 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 generally accepted accounting principles as applied in the United States and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability
for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and
(v) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement
and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission's
rules and guidelines applicable thereto.
(p) Incorporation
and Good Standing of the Company. The Company has been duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and has the corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement and the Prospectus and to enter into and perform its obligations
under this Agreement. The Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business.
(q) Subsidiaries.
Each of the Company’s “subsidiaries” (for purposes of this Agreement, as defined in Rule 405 under the Securities
Act) has been duly incorporated or organized, as the case may be, and is validly existing as a corporation, partnership or limited liability
company, as applicable, in good standing under the laws of the jurisdiction of its incorporation or organization and has the power and
authority (corporate or other) to own, lease and operate its properties and to conduct its business as described in the Registration Statement
and the Prospectus. Each of the Company’s subsidiaries is duly qualified as a foreign corporation, partnership or limited liability
company, as applicable, to transact business and is in good standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business. All of the issued and outstanding share capital or other
equity or ownership interests of each of the Company’s subsidiaries have been duly authorized and validly issued, are fully paid
and nonassessable and are owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance or adverse claim. None of the outstanding share capital or equity interest in any subsidiary was issued in violation
of preemptive or similar rights of any security holder of such subsidiary. The constitutive or organizational documents of each of the
subsidiaries comply in all material respects with the requirements of applicable laws of its jurisdiction of incorporation or organization
and are in full force and effect. The Company does not own or control, directly or indirectly, any corporation, association or other entity
other than the subsidiaries listed in Exhibit 21.1 to the Company’s most recent Annual Report on Form 10-K.
(r) Capitalization
and Other Share Capital Matters. The authorized, issued and outstanding share capital of the Company is as set forth in the Registration
Statement and the Prospectus (other than for subsequent issuances, if any, pursuant to employee benefit plans described in the Prospectus
or upon the exercise of outstanding options or warrants, in each case described in the Registration Statement and the Prospectus). The
Common Shares (including the Shares) conform in all material respects to the description thereof contained in the Prospectus. All of the
issued and outstanding Common Shares have been duly authorized and validly issued, are fully paid and nonassessable and have been issued
in compliance with all federal, state and provincial securities laws. None of the outstanding Common Shares was issued in violation of
any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company. There are
no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt
securities convertible into or exchangeable or exercisable for, any share capital of the Company or any of its subsidiaries other than
those described in the Registration Statement and the Prospectus. The descriptions of the Company’s stock option, stock bonus and
other stock plans or arrangements, and the options or other rights granted thereunder, set forth in the Registration Statement and the
Prospectus is accurate in all material respects.
(s) Stock
Exchange Listing. The Common Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act and are listed
on the Principal Market, and 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 or delisting the Common Shares from the Principal Market, nor has the Company received any
notification that the Commission or the Principal Market is contemplating terminating such registration or listing. To the Company’s
knowledge, it is in compliance with all applicable listing requirements of the Principal Market.
(t) Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. Neither the Company nor any of its subsidiaries is in violation
of its charter or by-laws, partnership agreement or operating agreement or similar organizational documents, as applicable, or is in default
(or, with the giving of notice or lapse of time, would be in default) (“Default”) under any indenture, loan, credit
agreement, note, lease, license agreement, contract, franchise or other instrument (including, without limitation, any pledge agreement,
security agreement, mortgage or other instrument or agreement evidencing, guaranteeing, securing or relating to indebtedness) to which
the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of their respective properties
or assets are subject (each, an “Existing Instrument”), except for such Defaults as could not reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Change. The Company’s execution, delivery and performance of this
Agreement, consummation of the transactions contemplated hereby and by the Registration Statement and the Prospectus and the issuance
and sale of the Shares (including the use of proceeds from the sale of the Shares as described in the Registration Statement and the Prospectus
under the caption “Use of Proceeds”) (i) have been duly authorized by all necessary corporate action and will not result
in any violation of the provisions of the charter or by-laws, partnership agreement or operating agreement or similar organizational documents,
as applicable, of the Company or any subsidiary (ii) will not conflict with or constitute a breach of, or Default or a Debt Repayment
Triggering Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to, or require the consent of any other party to, any Existing Instrument
and (iii) will not result in any violation of any law, administrative regulation or administrative or court decree applicable to
the Company or any of its subsidiaries. No consent, approval, authorization or other order of, or registration or filing with, any court
or other governmental or regulatory authority or agency, is required for the Company’s execution, delivery and performance of this
Agreement and consummation of the transactions contemplated hereby and by the Registration Statement and the Prospectus, except (A) such
as have been obtained or made by the Company and are in full force and effect under the Securities Act and Canadian Securities Laws, (B) filing
of the Registration Statement and Prospectus pursuant to Section 4(w) and (C) such as may be required under applicable
state securities or blue sky laws or FINRA (as defined below). As used herein, a “Debt Repayment Triggering Event”
means any event or condition which gives, or with the giving of notice or lapse of time would give, the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
(u) No
Material Actions or Proceedings. Except as otherwise disclosed in the Prospectus, there is no action, suit, proceeding, inquiry or
investigation brought by or before any legal or governmental entity now pending or, to the knowledge of the Company, threatened, against
or affecting the Company or any of its subsidiaries, which could reasonably be expected, individually or in the aggregate, to result in
a Material Adverse Change. No material labor dispute with the employees of the Company or any of its subsidiaries, or with the employees
of any principal supplier, manufacturer, customer or contractor of the Company, exists or, to the knowledge of the Company, is threatened
or imminent.
(v) Intellectual
Property Rights. Except as otherwise disclosed in the Registration Statement or the Prospectus, the Company and its subsidiaries own,
or have obtained valid and enforceable licenses for, the inventions, patent applications, patents, trademarks, trade names, service names,
copyrights, trade secrets and other intellectual property described in the Registration Statement and the Prospectus as being owned or
licensed by them or which are necessary for the conduct of their respective businesses as currently conducted or as currently proposed
to be conducted (collectively, “Intellectual Property”) and the conduct of their respective businesses does not and
will not infringe, misappropriate or otherwise conflict in any material respect with any such rights of others. The Intellectual Property
of the Company has not been adjudged by a court of competent jurisdiction to be invalid or unenforceable, in whole or in part, and the
Company is unaware of any facts which would form a reasonable basis for any such adjudication. To the Company’s knowledge: (i) there
are no third parties who have rights to any Intellectual Property, except for customary reversionary rights of third-party licensors with
respect to Intellectual Property that is disclosed in the Registration Statement and the Prospectus as licensed to the Company or one
or more of its subsidiaries; and (ii) there is no infringement by third parties of any Intellectual Property. With the exception
of the U.S. Patent and Trademark Office’s and foreign governmental administrative agencies’ review of pending patent applications
in connection with the prosecution of such applications in the ordinary course, there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others: (A) challenging the Company’s rights in or to any Intellectual Property,
and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim; (B) challenging
the validity, enforceability or scope of any Intellectual Property, and the Company is unaware of any facts which would form a reasonable
basis for any such action, suit, proceeding or claim; or (C) asserting that the Company or any of its subsidiaries infringes or otherwise
violates, or would, upon the commercialization of any product or service described in the Registration Statement or the Prospectus as
under development, infringe or violate, any patent, trademark, trade name, service name, copyright, trade secret or other proprietary
rights of others, and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or
claim. The Company and its subsidiaries have complied with the terms of each agreement pursuant to which Intellectual Property has been
licensed to the Company or any subsidiary, and all such agreements are in full force and effect. To the Company’s knowledge, there
are no material defects in any of the patents or patent applications included in the Intellectual Property. The Company and its subsidiaries
have taken all reasonable steps to protect, maintain and safeguard their Intellectual Property, including the execution of appropriate
nondisclosure, confidentiality agreements and invention assignment agreements and invention assignments with their employees, and no employee
of the Company is in or has 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. The duty of candor and good faith
as required by the United States Patent and Trademark Office during the prosecution of the United States patents and patent applications
included in the Intellectual Property have been complied with; and in all Canadian or foreign offices having similar requirements, all
such requirements have been complied with. None of the Company owned Intellectual Property or technology (including information technology
and outsourced arrangements) employed by the Company or its subsidiaries has been obtained or is being used by the Company or its subsidiary
in violation of any contractual obligation binding on the Company or its subsidiaries or any of their respective officers, directors or
employees or otherwise in violation of the rights of any persons. The product candidates described in the Registration Statement and the
Prospectus as under development by the Company or any subsidiary fall within the scope of the claims of one or more patents or patent
applications owned by, or exclusively licensed to, the Company or any subsidiary.
(w) All
Necessary Permits, etc. The Company and each subsidiary possess such valid and current certificates, authorizations, approvals,
clearances, licenses, registrations, exemptions, or permits required by state, federal or foreign regulatory agencies or bodies to conduct
their respective businesses as currently conducted and as described in the Registration Statement or the Prospectus (collectively, “Permits”).
Neither the Company nor any of its subsidiaries is in violation of, or in default under, any Permit or has received any notice of proceedings
relating to the revocation or modification of, or non-compliance with, any such Permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, could reasonably be expected to result in a Material Adverse Change. The Company and its
subsidiaries have fulfilled and performed all of their material obligations with respect to the material Permits, and no event has occurred
which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment
of the rights of the holder of any such Permit.
(x) Title
to Properties. Except as otherwise disclosed in the Prospectus, the Company and its subsidiaries has good and marketable title to
all of the material real and personal property and other assets reflected as owned in the financial statements referred to in Section 2(n) above
(or elsewhere in the Registration Statement or the Prospectus), in each case free and clear of any security interests, mortgages, liens,
encumbrances, equities, adverse claims and other defects. The real property, improvements, equipment and personal property held under
lease by the Company or of its subsidiary are held under valid and enforceable leases, with such exceptions as are not material and do
not materially interfere with the use made or proposed to be made of such real property, improvements, equipment or personal property
by the Company or such subsidiary.
(y) Tax
Law Compliance. The Company and its subsidiaries have filed all necessary United States and Canadian federal, state, provincial, local
and foreign income and franchise tax returns or have properly requested extensions thereof and have paid all taxes required to be paid
by any of them and, if due and payable, any related or similar assessment, fine or penalty levied against any of them except as may be
being contested in good faith and by appropriate proceedings (except in any case in which the failure to do so would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Change). The Company has made adequate charges, accruals and
reserves in the applicable financial statements referred to in Section 2(n) above in respect of all United States and
Canadian federal, state, provincial, local and foreign income and franchise taxes for all periods as to which the tax liability of the
Company or any of its subsidiaries has not been finally determined.
(z) Company
Not an “Investment Company.” The Company is not, and will not be, either after receipt of payment for the Shares or after
the application of the proceeds therefrom as described under “Use of Proceeds” in the Registration Statement or the Prospectus,
required to register as an “investment company” under the Investment Company Act of 1940, as amended (the “Investment
Company Act”).
(aa) Insurance.
Except as otherwise disclosed in the Prospectus, each of the Company and its subsidiaries are insured by recognized, financially sound
and reputable institutions with policies in such amounts and with such deductibles and covering such risks as are, in the Company’s
reasonable judgement, generally deemed adequate and customary for their businesses including, but not limited to, policies covering real
and personal property owned or leased by the Company and its subsidiaries against theft, damage, destruction, acts of vandalism and earthquakes.
The Company has no reason to believe that it or any of its subsidiaries will not be able (i) to renew its existing insurance coverage
as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate
to conduct its business as now conducted and at a cost that could not reasonably be expected to result in a Material Adverse Change. Neither
the Company nor any of its subsidiaries has been denied any insurance coverage which it has sought or for which it has applied.
(bb) No
Price Stabilization or Manipulation; Compliance with Regulation M. Neither the Company nor any of its subsidiaries has taken, directly
or indirectly, any action designed to or that would reasonably be expected to cause or result in stabilization or manipulation of the
price of the Common Shares or of any “reference security” (as defined in Rule 100 of Regulation M under the Exchange
Act (“Regulation M”)) with respect to the Common Shares, whether to facilitate the sale or resale of the Shares or
otherwise, and has taken no action which would directly or indirectly violate Regulation M.
(cc) Related
Party Transactions. There are no business relationships or related-party transactions involving the Company or any of its subsidiaries
or any other person required to be described in the Registration Statement or the Prospectus pursuant to the Securities Act which have
not been described as required.
(dd) FINRA
Matters. All of the information provided to the Agent or to counsel for the Agent by the Company, its counsel, its officers and directors
and the holders of any securities (debt or equity) or options to acquire any securities of the Company in connection with the offering
of the Shares is true, complete, correct and compliant with Financial Industry Regulatory Authority, Inc.’s (“FINRA”)
rules and any letters, filings or other supplemental information provided to FINRA pursuant to FINRA Rules is true, complete
and correct. The Company meets the requirements for use of Form S-3 under the Securities Act specified in FINRA Rule 5110(h)(1)(C).
(ee) No Unlawful Contributions or Other Payments. Except as otherwise disclosed in the
Prospectus, neither the Company nor any of its subsidiaries nor, to the best of the Company’s knowledge, any employee or agent
of the Company or any subsidiary, has made any contribution or other payment to any official of, or candidate for, any federal,
state or foreign office in violation of any law or of the character required to be disclosed in the Registration Statement and the
Prospectus.
(ff) Compliance
with Environmental Laws. Except as described in the Prospectus and except as could not reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Change; (i) neither the Company nor any of its subsidiaries is in violation of any
federal, state, provincial, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating
to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release
of hazardous chemicals, pollutants, contaminants, hazardous wastes, toxic substances, hazardous substances, petroleum or petroleum products
(collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (ii) the Company and its subsidiaries
have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their
requirements, (iii) there are no pending or, to the Company’s knowledge, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to
any Environmental Law against the Company or any of its subsidiaries and (iv) to the Company’s knowledge, there are no events
or circumstances that might reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding
by any private party or governmental body or agency, against or affecting the Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(gg) ERISA
Compliance. Except as otherwise disclosed in the Prospectus, the Company and its subsidiaries and any “employee benefit plan”
(as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, “ERISA”)) subject to ERISA that are established or maintained by the Company,
its subsidiaries or their “ERISA Affiliates” (as defined below) are in compliance in all material respects with ERISA. “ERISA
Affiliate” means, with respect to the Company or any of its subsidiaries, any member of any group of organizations described
in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (the “Code”) of which the Company or such subsidiary is a member. No “reportable event”
(as defined under ERISA) has occurred or is reasonably expected to occur with respect to any “employee benefit plan” established
or maintained by the Company, its subsidiaries or any of their ERISA Affiliates that is subject to Title IV of ERISA that could reasonably
be expected to result in a material liability to the Company. No “employee benefit plan” that is subject to Title IV of ERISA
established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates, if such “employee benefit plan”
were terminated, would have any material amount of “unfunded benefit liabilities” (as defined for such purposes under ERISA).
Neither the Company, its subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to incur any material liability
under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections 412,
4971, 4975 or 4980B of the Code. Each “employee benefit plan” established or maintained by the Company, its subsidiaries or
any of their ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing
has occurred, whether by action or failure to act, which would reasonably be expected to cause the loss of such qualification.
(hh) Brokers.
Except as otherwise disclosed in the Prospectus, there is no broker, finder or other party that is entitled to receive from the Company
any brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated by this Agreement.
(ii) No
Right to Immunity. Except as provided by laws or statutes generally applicable to transactions of the type described in this Agreement,
neither the Company nor any of its respective properties, assets or revenues has any right of immunity under the laws of the Province
of British Columbia, Canada, New York or United States law, from any legal action, suit or proceeding, from the giving of any relief in
any such legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any Province of British Columbia, Canadian
federal, New York or United States federal court, from service of process, attachment upon or prior judgment, or attachment in aid of
execution of judgment, or from execution of a judgment, or other legal process or proceeding for the giving of any relief or for the enforcement
of a judgment, in any such court, with respect to its obligations, liabilities or any other matter under or arising out of or in connection
with this Agreement. To the extent that the Company or any of its respective properties, assets or revenues may have or may hereafter
become entitled to any such right of immunity in any such court in which proceedings may at any time be commenced, the Company waives
or will waive such right to the extent permitted by law and has consented to such relief and enforcement as provided in Section 8(g) of
this Agreement.
(jj) No
Outstanding Loans or Other Extensions of Credit. The Company does not have any outstanding extension of credit, in the form of a personal
loan, to or for any director or executive officer (or equivalent thereof) of the Company except for such extensions of credit as are expressly
permitted by Section 13(k) of the Exchange Act.
(kk) Compliance
with Laws. The Company and its subsidiaries have been and are in compliance with all applicable laws, rules and regulations,
except where failure to be so in compliance could not be expected, individually or in the aggregate, to result in a Material Adverse Change.
(ll) Anti-Corruption
and Anti-Bribery Laws. Neither the Company nor any of its subsidiaries nor any director, officer, or employee of the Company or any
of its subsidiaries, nor to the knowledge of the Company, any agent, Affiliate or other person acting on behalf of the Company or any
of its subsidiaries has, in the course of its actions for, or on behalf of, the Company or any of its subsidiaries (i) used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made or
taken any 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 any government-owned or controlled entity or public international organization,
or any political party, party official, or candidate for political office; (iii) violated or is in violation of any provision of
the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), the Corruption of Foreign Public Officials
Act (Canada) (the “CFPOA”), the UK Bribery Act 2010, or any other applicable anti-bribery or anti-corruption law; or
(iv) made, offered, authorized, requested, or taken an act in furtherance of any unlawful bribe, rebate, payoff, influence payment,
kickback or other unlawful payment or benefit. The Company and its subsidiaries and, to the knowledge of the Company, the Company’s
Affiliates have conducted their respective businesses in compliance with the FCPA and the CFPOA instituted and have maintained controls
reasonably designed to ensure compliance therewith.
(mm) Money
Laundering Laws. The operations of the Company and its subsidiaries are, and have been conducted at all times, in compliance with
applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), the money laundering statutes of all applicable jurisdictions,
the rules and regulations thereunder and any related or similar applicable rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(nn) Clinical
Data and Regulatory Compliance. The preclinical tests and clinical trials, and other studies (collectively, “studies”)
that are described in, or the results of which are referred to in, the Registration Statement or the Prospectus were and, if still pending,
are being conducted in all material respects in accordance with all applicable laws and regulations, including, without limitation, the
Federal Food, Drug and Cosmetic Act and its implementing regulations at 21 C.F.R. Parts 50, 54, 56, 58, and 312, with the protocols, procedures
and controls designed and approved for such studies and with standard medical and scientific research procedures; each description of
the results of such studies is accurate and complete in all material respects and fairly presents the data derived from such studies,
and the Company and its subsidiaries have no knowledge of any other studies the results of which are inconsistent with, or otherwise call
into question, the results described or referred to in the Registration Statement or the Prospectus; the Company and its subsidiaries
have made all such filings and obtained all such approvals or exemptions as may be required by the Food and Drug Administration of the
U.S. Department of Health and Human Services, the Department of Health of the federal government of Canada or any committee thereof or
from any other U.S. or foreign government or drug or medical device regulatory agency, or health care facility Institutional Review Board
(collectively, the “Regulatory Agencies”); neither the Company nor any of its subsidiaries has received any notice
of, or correspondence from, any Regulatory Agency requiring the termination, suspension or modification of any clinical trials that are
described or referred to in the Registration Statement or the Prospectus; and the Company and its subsidiaries have each operated and
currently are in compliance in all material respects with all applicable rules, regulations and policies of the Regulatory Agencies.
(oo) Sanctions.
Neither the Company nor any of its subsidiaries, directors, officers, or employees, nor, to the knowledge of the Company, any agent, Affiliate
or other person acting on behalf of the Company or any of its subsidiaries is currently the subject or the target of any sanctions administered
by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the Office of the Superintendent
of Financial Institutions (Canada), the United Nations Security Council, the European Union, Her Majesty’s Treasury of the United
Kingdom, or other relevant sanctions authority (collectively, “Sanctions”); nor is the Company or any of its subsidiaries
located, organized or resident in a country or territory that is the subject or the target of Sanctions, including, without limitation,
Crimea, Cuba, Iran, North Korea and Syria (collectively, “Sanctioned Countries”); and the Company will not directly
or indirectly use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, or any
joint venture partner or other person or entity, for the purpose of financing the activities of or business with any person, or in any
country or territory, that at the time of such financing, is the subject or the target of Sanctions or 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 applicable Sanctions. For the past five years, the Company and its subsidiaries have not knowingly engaged in and are not 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.
(pp) Sarbanes-Oxley.
The Company is in compliance, in all material respects, with all applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated thereunder.
(qq) Canadian
Reporting Issuer. The Company is a "reporting issuer" in each Canadian Qualifying Jurisdiction within the meaning of Canadian
Securities Laws in the Canadian Qualifying Jurisdictions and is (i) not currently in default of any material requirement of Canadian
Securities Laws of the Canadian Qualifying Jurisdictions and (ii) is not on the list of defaulting reporting issuers maintained by
the applicable authorities in each such Canadian Qualifying Jurisdiction that maintains such a list. No order ceasing or suspending trading
in securities of the Company or prohibiting the sale of securities by the Company has been issued by any Canadian stock exchange or securities
regulatory authority, and no proceedings for this purpose have been instituted, or are, to the Company's knowledge, pending, contemplated
or threatened. The Company has not filed any confidential material change reports which remain confidential at the date hereof.
(rr) Duties,
Transfer Taxes, Etc. No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes
are payable by the Agent in the United States or any political subdivision or taxing authority thereof or any jurisdiction outside the
United States or therein in connection with the execution, delivery or performance of this Agreement by the Company or the sale and delivery
by the Company of the Shares.
(ss) Cybersecurity.
The Company and its subsidiaries’ 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 and its subsidiaries as currently conducted,
free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its subsidiaries
have implemented and maintained commercially reasonable physical, technical and administrative controls, policies, procedures, and safeguards
to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all
IT Systems and data, including “Personal Data,” used in connection with their businesses. “Personal Data”
means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or
tax identification number, driver’s license number, passport number, credit card number, bank information, or customer or account
number; (ii) any information which would qualify as “personally identifying information” under the Federal Trade Commission
Act, as amended; (iii) “personal data” as defined by GDPR; (iv) any information which would qualify as “protected
health information” under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information
Technology for Economic and Clinical Health Act (collectively, “HIPAA”); and (v) any other piece of information
that allows the identification of such natural person, or his or her family, or permits the collection or analysis of any data related
to an identified person’s health or sexual orientation. To the knowledge of the Company, there have been no breaches, violations,
outages or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or the
duty to notify any other person, nor any incidents under internal review or investigations relating to the same. The Company and its subsidiaries
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.
(tt) Compliance
with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all applicable
state, provincial and United States and Canadian federal data privacy and security laws and regulations, including without limitation
HIPAA and the Company and its subsidiaries have taken commercially reasonable actions to prepare to comply with, and since May 25,
2018, have been and currently are in compliance with, the European Union General Data Protection Regulation (“GDPR”)
(EU 2016/679) (collectively, the “Privacy Laws”). To ensure compliance with the Privacy Laws, the Company and its subsidiaries
have in place, comply with, and take appropriate steps reasonably designed to ensure compliance in all material respects with their policies
and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling, and analysis of Personal
Data (the “Policies”). The Company and its subsidiaries have at all times made all disclosures to users or customers
required by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained in any Policy have,
to the knowledge of the Company, been inaccurate or in violation of any applicable laws and regulatory rules or requirements in any
material respect. The Company further certifies that neither it nor any subsidiary: (i) has received notice of any actual or potential
liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition
that would reasonably be expected to result in any such notice; (ii) is currently conducting or paying for, in whole or in part,
any investigation, remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree,
or agreement that imposes any obligation or liability by any governmental or regulatory authority under any Privacy Law.
(uu) Compliance
with Health Care Laws. The Company and its subsidiaries are, and at all times have been, in compliance with all Health Care Laws.
For purposes of this Agreement, “Health Care Laws” means: (i) the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301
et seq.), the Public Health Service Act (42 U.S.C. Section 201 et seq.), and the regulations promulgated thereunder; (ii) all
applicable federal, state, local and foreign health care fraud and abuse laws, including, without limitation, the Anti-Kickback Statute
(42 U.S.C. Section 1320a-7b(b)), the Civil False Claims Act (31 U.S.C. Section 3729 et seq.), the criminal false statements
law (42 U.S.C. Section 1320a-7b(a)), 18 U.S.C. Sections 286 and 287, the health care fraud criminal provisions under the U.S. Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”) (42 U.S.C. Section 1320d et seq.), the Stark Law (42 U.S.C
Section 1395nn), the civil monetary penalties law (42 U.S.C. Section 1320a-7a), the exclusion law (42 U.S.C. Section 1320a-7),
the Physician Payments Sunshine Act (42 U.S.C. Section 1320-7h), and applicable laws governing government funded or sponsored healthcare
programs; (iii) HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921
et seq.); (iv) the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation
Act of 2010; (v) licensure, quality, safety and accreditation requirements under applicable federal, state, local or foreign laws
or regulatory bodies; (vi) all other local, state, federal, national, supranational and foreign laws, relating to the regulation
of the Company or its subsidiaries; and (vii) the directives and regulations promulgated pursuant to such statutes and any state
or non-U.S. counterpart thereof. Neither the Company nor any of its subsidiaries has received written notice of any claim, action, suit,
proceeding, hearing, enforcement, investigation, arbitration or other action from any court or arbitrator or governmental or regulatory
authority or third party alleging that any product operation or activity is in violation of any Health Care Laws nor, to the Company’s
knowledge, is any such claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action threatened. The
Company and its subsidiaries have filed, maintained or submitted all material reports, documents, forms, notices, applications, records,
claims, submissions and supplements or amendments as required by any Health Care Laws, and all such reports, documents, forms, notices,
applications, records, claims, submissions and supplements or amendments were complete and accurate on the date filed in all material
respects (or were corrected or supplemented by a subsequent submission). Neither the Company nor any of its subsidiaries is a party to
any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements with or imposed by
any governmental or regulatory authority. Additionally, neither the Company, any of its subsidiaries nor any of their respective employees,
officers, directors, or agents has been excluded, suspended or debarred from participation in any U.S. federal health care program or
human clinical research or, to the knowledge of the Company, is subject to a governmental inquiry, investigation, proceeding, or other
similar action that could reasonably be expected to result in debarment, suspension, or exclusion.
(vv) Other
Underwriting Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at the market”
or continuous equity transaction.
Any certificate signed by
any officer or representative of the Company or any of its subsidiaries and delivered to the Agent or counsel for the Agent in connection
with an issuance of Shares shall be deemed a representation and warranty by the Company to the Agent as to the matters covered thereby
on the date of such certificate.
The Company acknowledges that
the Agent and, for purposes of the opinions to be delivered pursuant to Section 4(o) hereof, counsel to the Company and
counsel to the Agent, will rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Section 3. ISSUANCE AND SALE OF COMMON SHARES
(a) Sale
of Securities. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions
herein set forth, the Company and the Agent agree that the Company may from time to time seek to sell Shares through the Agent, acting
as sales agent, or directly to the Agent, acting as principal, as follows, with an aggregate Sales Price of up to the Maximum Program
Amount, based on and in accordance with Issuance Notices as the Company may deliver, during the Agency Period.
(b) Mechanics
of Issuances.
(i) Issuance Notice.
Upon the terms and subject to the conditions set forth herein, on any Trading Day during the Agency Period on which the conditions set
forth in Section 5(a) and Section 5(b) shall have been satisfied, the Company may exercise its right
to request an issuance of Shares by delivering to the Agent an Issuance Notice; provided, however, that (A) in no event may
the Company deliver an Issuance Notice to the extent that (I) the sum of (x) the aggregate Sales Price of the requested Issuance
Amount, plus (y) the aggregate Sales Price of all Shares issued under all previous Issuance Notices effected pursuant to this Agreement,
would exceed the Maximum Program Amount; and (B) prior to delivery of any Issuance Notice, the period set forth for any previous
Issuance Notice shall have expired or been terminated. An Issuance Notice shall be considered delivered on the Trading Day that it is
received by e-mail to the persons set forth in Schedule A hereto and confirmed by the Company by telephone (including a voicemail message
to the persons so identified), with the understanding that, with adequate prior written notice, the Agent may modify the list of such
persons from time to time.
(ii) Agent
Efforts. Upon the terms and subject to the conditions set forth in this Agreement, upon the receipt of an Issuance Notice, the Agent
will use its commercially reasonable efforts consistent with its normal sales and trading practices to place the Shares with respect to
which the Agent has agreed to act as sales agent, subject to, and in accordance with the information specified in, the Issuance Notice,
unless the sale of the Shares described therein has been suspended, cancelled or otherwise terminated in accordance with the terms of
this Agreement. For the avoidance of doubt, the parties to this Agreement may modify an Issuance Notice at any time provided they both
agree in writing to any such modification.
(iii) Method
of Offer and Sale. The Shares may be offered and sold (A) in privately negotiated transactions with the consent of the Company;
(B) as block transactions; or (C) by any other method permitted by law deemed to be an “at the market offering”
as defined in Rule 415(a)(4) under the Securities Act, including sales made directly on the Principal Market or, subject to
the remainder of this paragraph, sales made into any other existing trading market of the Common Shares. Nothing in this Agreement shall
be deemed to require either party to agree to the method of offer and sale specified in the preceding sentence, and (except as specified
in clauses (A) and (B) above) the method of placement of any Shares by the Agent shall be at the Agent’s discretion. During
the term of this Agreement, notwithstanding anything to the contrary herein, the Agent agrees that in no event will it or any of its Affiliates
sell Shares on the TSX Venture Exchange (“TSX-V”) or any other exchange or market in Canada or to any person it or
its Affiliates know to be a Canadian resident. The Agent agrees that no advertisement, solicitation, conduct or negotiation directly or
indirectly in furtherance of the sale of Shares contemplated hereunder shall be undertaken in Canada by the Agents or its Affiliates in
respect of the offer and sale of Shares contemplated hereunder.
(iv) Confirmation
to the Company. If acting as sales agent hereunder, the Agent will provide written confirmation to the Company no later than the opening
of the Trading Day following the Trading Day on which it has placed Shares hereunder setting forth the number of shares sold on such Trading
Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof.
(v) Settlement.
Each issuance of Shares will be settled on the applicable Settlement Date for such issuance of Shares and, subject to the provisions of
Section 5, on or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer
the Shares being sold by crediting the Agent or its designee’s account at The Depository Trust Company through its Deposit/Withdrawal
At Custodian (DWAC) System, or by such other means of delivery as may be mutually agreed upon by the parties hereto and, upon receipt
of such Shares, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, the Agent will
deliver, by wire transfer of immediately available funds, the related Issuance Price in same day funds delivered to an account designated
by the Company prior to the Settlement Date. The Company may sell Shares to the Agent as principal at a price agreed upon at each relevant
time Shares are sold pursuant to this Agreement (each, a “Time of Sale”).
(vi) Suspension
or Termination of Sales. Consistent with standard market settlement practices, the Company or the Agent may, upon notice to the other
party hereto in writing or by telephone (confirmed immediately by verifiable email), suspend any sale of Shares, and the period set forth
in an Issuance Notice shall immediately terminate; provided, however, that (A) such suspension and termination shall not affect
or impair either party’s obligations with respect to any Shares placed or sold hereunder prior to the receipt of such notice; (B) if
the Company suspends or terminates any sale of Shares after the Agent confirms such sale to the Company, the Company shall still be obligated
to comply with Section 3(b)(v) with respect to such Shares; and (C) if the Company defaults in its obligation to
deliver Shares on a Settlement Date, the Company agrees that it will hold the Agent harmless against any loss, claim, damage or expense
(including, without limitation, penalties, interest and reasonable legal fees and expenses), as incurred, arising out of or in connection
with such default by the Company. The parties hereto acknowledge and agree that, in performing its obligations under this Agreement, the
Agent may borrow Common Shares from stock lenders in the event that the Company has not delivered Shares to settle sales as required by
subsection (v) above, and may use the Shares to settle or close out such borrowings. The Company agrees that no such notice shall
be effective against the Agent unless it is made to the persons identified in writing by the Agent pursuant to Section 3(b)(i).
(vii) No
Guarantee of Placement, Etc. The Company acknowledges and agrees that (A) there can be no assurance that the Agent will be successful
in placing Shares; (B) the Agent will incur no liability or obligation to the Company or any other Person if it does not sell Shares;
and (C) the Agent shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise
specifically agreed by the Agent and the Company.
(viii) Material
Non-Public Information. Notwithstanding any other provision of this Agreement, the Company and the Agent agree that the Company shall
not deliver any Issuance Notice to the Agent, and the Agent shall not be obligated to place any Shares, during any period in which the
Company is in possession of material non-public information.
(c) Fees.
As compensation for services rendered, the Company shall pay to the Agent, on the applicable Settlement Date, the Selling Commission for
the applicable Issuance Amount (including with respect to any suspended or terminated sale pursuant to Section 3(b)(vi)) by
the Agent deducting the Selling Commission from the applicable Issuance Amount.
(d) Expenses.
The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder and in
connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to the issuance and
delivery of the Shares (including all printing and engraving costs); (ii) all fees and expenses of the registrar and transfer agent
of the Shares; (iii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Shares;
(iv) all fees and expenses of the Company’s counsel, independent public or certified public accountants and other advisors;
(v) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and certificates of experts), the Prospectus, any Free Writing
Prospectus prepared by or on behalf of, used by, or referred to by the Company, and all amendments and supplements thereto, and this Agreement;
(vi) all filing fees, attorneys’ fees and expenses incurred by the Company or the Agent in connection with qualifying or registering
(or obtaining exemptions from the qualification or registration of) all or any part of the Shares for offer and sale under the state securities
or blue sky laws or the provincial securities laws of Canada, and, if requested by the Agent, preparing and printing a “Blue
Sky Survey” or memorandum, and any supplements thereto, advising the Agent of such qualifications, registrations, determinations
and exemptions; (vii) the reasonable fees and disbursements of the Agent’s United States and Canadian counsel, including the
reasonable fees and expenses of counsel for the Agent in connection with FINRA review, if any, and approval of the Agent’s participation
in the offering and distribution of the Shares; (viii) the filing fees incident to FINRA review, if any; (ix) all fees, expenses
and disbursements relating to background checks of the Company’s directors, director nominees and executive officers; (x) the
costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the
marketing of the offering of the Shares, including, without limitation, expenses associated with the preparation or dissemination of any
electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives,
employees and officers of the Company and of the Agent and any such consultants, and the cost of any aircraft chartered in connection
with the road show; and (xi) the fees and expenses associated with listing the Shares on the Principal Market. The fees and disbursements
of Agent’s United States and Canadian counsel pursuant to subsections (vi) and (vii) above shall not exceed (A) US$75,000
for United States counsel and US$15,000 for Canadian counsel in connection with execution of this Agreement and (B) US$15,000 for
United States counsel and US$2,500 for Canadian counsel in connection with each Triggering Event Date (as defined below) on which the
Company is required to provide a certificate pursuant to Section 4(o).
Section 4. ADDITIONAL COVENANTS
The Company covenants and
agrees with the Agent as follows, in addition to any other covenants and agreements made elsewhere in this Agreement:
(a) Exchange
Act Compliance. During the Agency Period, the Company shall (i) file, on a timely basis, with the Commission all reports and
documents required to be filed under Section 13, 14 or 15 of the Exchange Act in the manner and within the time periods required
by the Exchange Act; and (ii) either (A) include in its quarterly reports on Form 10-Q and its annual reports on Form 10-K,
a summary detailing, for the relevant reporting period, (1) the number of Shares sold through the Agent pursuant to this Agreement
and (2) the net proceeds received by the Company from such sales or (B) prepare a prospectus supplement containing, or include
in such other filing permitted by the Securities Act or Exchange Act (each an “Interim Prospectus Supplement”), such
summary information and, at least once a quarter and subject to this Section 4, file such Interim Prospectus Supplement pursuant
to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rule 430B under
the Securities Act).
The Company will use commercially
reasonable efforts to comply with all requirements imposed upon it by the Canadian Securities Laws as from time to time in force, so far
as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereof, the Registration
Statement and the Prospectus.
(b) Securities
Act Compliance. After the date of this Agreement, the Company shall promptly advise the Agent in writing (i) of the receipt of
any comments of, or requests for additional or supplemental information from, the Commission; (ii) of the time and date of any filing
of any post-effective amendment to the Registration Statement, any Rule 462(b) Registration Statement or any amendment or supplement
to the Prospectus, or any Free Writing Prospectus; (iii) of the time and date that any post-effective amendment to the Registration
Statement or any Rule 462(b) Registration Statement becomes effective; and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, any Rule 462(b) Registration
Statement or any amendment or supplement to the Prospectus or of any order preventing or suspending the use of any Free Writing Prospectus
or the Prospectus, or of any proceedings to remove, suspend or terminate from listing or quotation the Common Shares from any securities
exchange upon which they are listed for trading or included or designated for quotation, or of the threatening or initiation of any proceedings
for any of such purposes. If the Commission shall enter any such stop order at any time, the Company will use its reasonable efforts to
obtain the lifting of such order as soon as reasonably practicable. Additionally, the Company agrees that it shall comply with the provisions
of Rule 424(b) and Rule 433, as applicable, under the Securities Act and will use its reasonable efforts to confirm that
any filings made by the Company under such Rule 424(b) or Rule 433 were received in a timely manner by the Commission.
(c) Amendments
and Supplements to the Prospectus and Other Securities Act Matters. If any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Prospectus so that the Prospectus does not 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 when the Prospectus
is delivered to a purchaser, not misleading, or if in the opinion of the Agent or counsel for the Agent it is otherwise necessary to amend
or supplement the Prospectus to comply with applicable law, including the Securities Act, the Company agrees (subject to Sections 4(d) and
4(f)) to promptly prepare, file with the Commission and the British Columbia Securities Commission and furnish at its own expense to the
Agent, amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not 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 when the Prospectus is delivered to a purchaser, not misleading or so that the Prospectus, as amended or supplemented,
will comply with applicable law including the Securities Act. Neither the Agent’s consent to, or delivery of, any such amendment
or supplement shall constitute a waiver of any of the Company’s obligations under Sections 4(d) and 4(f).
(d) Agent’s
Review of Proposed Amendments and Supplements. Prior to amending or supplementing the Registration Statement (including any registration
statement filed under Rule 462(b) under the Securities Act) or the Prospectus (excluding any amendment or supplement through
incorporation of any report filed under the Exchange Act), the Company shall furnish to the Agent for review, a reasonable amount of
time prior to the proposed time of filing or use thereof, a copy of each such proposed amendment or supplement, and the Company shall
not file or use any such proposed amendment or supplement without the Agent’s prior consent, and to file with the Commission within
the applicable period specified under the Securities Act any prospectus required to be filed thereunder.
(e) Use
of Free Writing Prospectus. Neither the Company nor the Agent has prepared, used, referred to or distributed, or will prepare, use,
refer to or distribute, without the other party’s prior written consent, any “written communication” that constitutes
a “free writing prospectus” as such terms are defined in Rule 405 under the Securities Act with respect to the offering
contemplated by this Agreement (any such free writing prospectus being referred to herein as a “Free Writing Prospectus”).
The Company has not provided any “marketing materials” (as such term is defined in National Instrument 41-101 – General
Prospectus Requirements) to any potential investors in the Common Shares to be sold hereunder.
(f) Free
Writing Prospectuses. The Company shall furnish to the Agent for review, a reasonable amount of time prior to the proposed time of
filing or use thereof, a copy of each proposed Free Writing Prospectus or any amendment or supplement thereto to be prepared by or on
behalf of, used by, or referred to by the Company and the Company shall not file, use or refer to any proposed Free Writing prospectus
or any amendment or supplement thereto without the Agent’s consent. The Company shall furnish to the Agent, without charge, as many
copies of any Free Writing Prospectus prepared by or on behalf of, or used by the Company, as the Agent may reasonably request. If at
any time when a prospectus is required by the Securities Act (including, without limitation, pursuant to Rule 173(d)) to be delivered
in connection with sales of the Shares (but in any event if at any time through and including the date of this Agreement) there occurred
or occurs an event or development as a result of which any Free Writing prospectus prepared by or on behalf of, used by, or referred to
by the Company conflicted or would conflict with the information contained in the Registration Statement or included or would include
an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances prevailing at that subsequent time, not misleading, the Company shall promptly amend or supplement such
Free Writing prospectus to eliminate or correct such conflict or so that the statements in such Free Writing prospectus as so amended
or supplemented will not 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 prevailing at such subsequent time, not misleading, as the case may be; provided,
however, that prior to amending or supplementing any such Free Writing prospectus, the Company shall furnish to the Agent for review,
a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of such proposed amended or supplemented Free
Writing prospectus and the Company shall not file, use or refer to any such amended or supplemented Free Writing prospectus without the
Agent’s consent.
(g) Filing
of Agent Free Writing Prospectuses. The Company shall not take any action that would result in the Agent or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a Free Writing Prospectus prepared by or on behalf
of the Agent that the Agent otherwise would not have been required to file thereunder.
(h) Copies
of Registration Statement and Prospectus. After the date of this Agreement through the last time that a prospectus is required by
the Securities Act (including, without limitation, pursuant to Rule 173(d)) to be delivered in connection with sales of the Shares,
the Company agrees to furnish the Agent with copies (which may be electronic copies) of the Registration Statement and each amendment
thereto, and with copies of the Prospectus and each amendment or supplement thereto in the form in which it is filed with the Commission
pursuant to the Securities Act or Rule 424(b) under the Securities Act, both in such quantities as the Agent may reasonably
request from time to time; and, if the delivery of a prospectus is required under the Securities Act or under the blue sky or securities
laws of any jurisdiction at any time on or prior to the applicable Settlement Date for any period set forth in an Issuance Notice in connection
with the offering or sale of the Shares and if at such time any event has occurred as a result of which the Prospectus as then amended
or supplemented would include an 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 when such Prospectus is delivered, not misleading, or,
if for any other reason it is necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the
Agent and to request that the Agent suspend offers to sell Shares (and, if so notified, the Agent shall cease such offers as soon as practicable);
and if the Company decides to amend or supplement the Registration Statement or the Prospectus as then amended or supplemented, to advise
the Agent promptly by telephone (with confirmation in writing) and to prepare and cause to be filed promptly with the Commission an amendment
or supplement to the Registration Statement or the Prospectus as then amended or supplemented that will correct such statement or omission
or effect such compliance; provided, however, that if during such same period the Agent is required to deliver a prospectus in respect
of transactions in the Shares, the Company shall promptly prepare and file with the Commission such an amendment or supplement.
(i) Blue
Sky Compliance. The Company shall cooperate with the Agent and counsel for the Agent to qualify or register the Shares for sale under
(or obtain exemptions from the application of) the state securities or blue sky laws or Canadian provincial securities laws of those jurisdictions
designated by the Agent, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so
long as required for the distribution of the Shares. The Company shall not be required to qualify as a foreign corporation or to take
any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it
would be subject to taxation as a foreign corporation. The Company will advise the Agent promptly of the suspension of the qualification
or registration of (or any such exemption relating to) the Shares for offering, sale or trading in any jurisdiction or any initiation
or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration
or exemption, the Company shall use its reasonable efforts to obtain the withdrawal thereof as soon as reasonably practicable. During
the term of this Agreement, notwithstanding anything to the contrary herein, the Agent agrees that in no event will it or any of its Affiliates
sell Shares on the TSX-V or any other exchange or market in Canada or to any person it or such Affiliates know to be a Canadian resident
and that no advertisement, solicitation, conduct or negotiation directly or indirectly in furtherance of the sale of Shares contemplated
hereunder shall be undertaken in Canada by the Agents or its Affiliates in respect of the offer and sale of Shares contemplated hereunder.
(j) Earnings
Statement. As soon as reasonably practicable, the Company will make generally available to its security holders and to the Agent an
earnings statement (which need not be audited) covering a period of at least twelve months beginning with the first fiscal quarter of
the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 under the Securities Act.
(k) Listing;
Reservation of Shares. (a) The Company will maintain the listing of the Shares on the Principal Market; and (b) the Company
will reserve and keep available at all times, free of preemptive rights, Shares for the purpose of enabling the Company to satisfy its
obligations under this Agreement.
(l) Transfer
Agent. The Company shall engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(m) Due
Diligence. During the term of this Agreement, the Company will reasonably cooperate with any reasonable due diligence review conducted
by the Agent in connection with the transactions contemplated hereby, including, without limitation, providing information and making
available documents and senior corporate officers, during normal business hours and at the Company’s principal offices, as the Agent
may reasonably request from time to time.
(n) Representations
and Warranties. The Company acknowledges that each delivery of an Issuance Notice and each delivery of Shares on a Settlement Date
shall be deemed to be (i) an affirmation to the Agent that the representations and warranties of the Company contained in or made
pursuant to this Agreement are true and correct as of the date of such Issuance Notice or of such Settlement Date, as the case may be,
as though made at and as of each such date, except as may be disclosed in the Prospectus (including any documents incorporated by reference
therein and any supplements thereto); and (ii) an undertaking that the Company will advise the Agent if any of such representations
and warranties will not be true and correct as of the Settlement Date for the Shares relating to such Issuance Notice, as though made
at and as of each such date (except that such representations and warranties shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented relating to such Shares).
(o) Deliverables
at Triggering Event Dates; Certificates. The Company agrees that on or prior to the date of the first Issuance Notice and, during
the term of this Agreement after the date of the first Issuance Notice, upon:
(A) the
filing of the Prospectus or the amendment or supplement of any Registration Statement or Prospectus (other than a prospectus supplement
relating solely to an offering of securities other than the Shares or a prospectus filed pursuant to Section 4(a)(ii)(B)), by means
of a post-effective amendment, sticker or supplement, but not by means of incorporation of documents by reference into the Registration
Statement or Prospectus;
(B) the
filing with the Commission of an annual report on Form 10-K or a quarterly report on Form 10-Q (including any Form 10-K/A
or Form 10-Q/A containing amended financial information or a material amendment to the previously filed annual report on Form 10-K,
or quarterly report on Form 10-Q), in each case, of the Company; or
(C) the
filing with the Commission of a current report on Form 8-K of the Company containing amended financial information (other than information
“furnished” pursuant to Item 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K
relating to reclassification of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards
No. 144) that is material to the offering of securities of the Company in the Agent’s reasonable discretion;
(any such event, a “Triggering Event
Date”), the Company shall furnish the Agent (but in the case of clause (C) above only if the Agent reasonably determines
that the information contained in such current report on Form 8-K of the Company is material) with a certificate as of the Triggering
Event Date, in the form and substance reasonably satisfactory to the Agent and its counsel, substantially similar to the form previously
provided to the Agent and its counsel, modified, as necessary, to relate to the Registration Statement and the Prospectus as amended or
supplemented, (A) confirming that the representations and warranties of the Company contained in this Agreement are true and correct,
(B) that the Company has performed all of its obligations hereunder to be performed on or prior to the date of such certificate and
as to the matters set forth in Section 5(a)(iii) hereof, and (C) containing any other certification that the Agent
shall reasonably request. The requirement to provide a certificate under this Section 4(o) shall be waived for any Triggering
Event Date occurring at a time when no Issuance Notice is pending or a suspension is in effect, which waiver shall continue until the
earlier to occur of the date the Company delivers instructions for the sale of Shares hereunder (which for such calendar quarter shall
be considered a Triggering Event Date) and the next occurring Triggering Event Date. Notwithstanding the foregoing, if the Company subsequently
decides to sell Shares following a Triggering Event Date when a suspension was in effect and did not provide the Agent with a certificate
under this Section 4(o), then before the Company delivers the instructions for the sale of Shares or the Agent sells any Shares pursuant
to such instructions, the Company shall provide the Agent with a certificate in conformity with this Section 4(o) dated as of
the date that the instructions for the sale of Shares are issued.
(p) Legal
Opinions. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date with respect to which
the Company is obligated to deliver a certificate pursuant to Section 4(o) for which no waiver is applicable and excluding the
date of this Agreement, the Company shall cause to be furnished, at the request of Agent, a negative assurances letter and the written
legal opinion of Skadden, Arps, Slate, Meagher & Flom LLP, U.S. counsel to the Company, a negative assurances letter of Latham &
Watkins LLP, counsel to the Agent, the written legal opinion of Blake, Cassels & Graydon LLP, Canadian counsel to the Company,
the written legal opinion of Cooley LLP, intellectual property counsel to the Company, each dated the date of delivery, shall be delivered
to the agent, each in form and substance reasonably satisfactory to the Agent and its counsel, substantially similar to the form previously
provided to the Agent and its counsel, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended
or supplemented.
(q) Comfort
Letter. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event Date with respect to which the
Company is obligated to deliver a certificate pursuant to Section 4(o) for which no waiver is applicable and excluding the date
of this Agreement, the Company shall cause Davidson & Company LLP, the independent registered public accounting firm who has
audited the financial statements included or incorporated by reference in the Registration Statement, to furnish the Agent a comfort letter,
dated the date of delivery, in form and substance reasonably satisfactory to the Agent and its counsel, substantially similar to the form
previously provided to the Agent and its counsel; provided, however, that any such comfort letter will only be required on the Triggering
Event Date specified to the extent that it contains financial statements filed with the Commission under the Exchange Act and incorporated
or deemed to be incorporated by reference into the Prospectus. If requested by the Agent, the Company shall also cause a comfort letter
to be furnished to the Agent on the date of occurrence of any material transaction or event requiring the filing of a current report on
Form 8-K containing material amended financial information of the Company, including the restatement of the Company’s financial
statements. The Company shall be required to furnish no more than one comfort letter hereunder per calendar quarter.
(r) Chief
Financial Officer’s Certificate. On or prior to the date of the first Issuance Notice and on or prior to each Triggering Event
Date, the Company shall furnish the Agent a certificate executed by the Chief Financial Officer of the Company, signing in such capacity,
dated the date of delivery (i) certifying that attached thereto are true and complete copies of the resolutions duly adopted by the
Board of Directors of the Company authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated
hereby (including, without limitation, the issuance of the Shares pursuant to this Agreement), which authorization shall be in full force
and effect on and as of the date of such certificate, (ii) certifying and attesting to the office, incumbency, due authority and
specimen signatures of each Person who executed this Agreement for or on behalf of the Company, and (iii) containing any other certification
that the Agent shall reasonably request.
(s) Agent’s
Own Account; Clients’ Account. The Company consents to the Agent trading, in compliance with applicable law, in the Common Shares
for the Agent’s own account and for the account of its clients at the same time as sales of the Shares occur pursuant to this Agreement.
(t) Investment
Limitation. The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such
a manner as would require the Company or any of its subsidiaries to register as an investment company under the Investment Company Act.
(u) Market
Activities. The Company will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause
or result in stabilization or manipulation of the price of the Shares or any other reference security, whether to facilitate the sale
or resale of the Shares or otherwise, and the Company will, and shall cause each of its Affiliates to, comply with all applicable provisions
of Regulation M. If the limitations of Rule 102 of Regulation M (“Rule 102”) do not apply with respect to
the Shares or any other reference security pursuant to any exception set forth in Section (d) of Rule 102, then promptly
upon notice from the Agent (or, if later, at the time stated in the notice), the Company will, and shall cause each of its Affiliates
to, comply with Rule 102 as though such exception were not available but the other provisions of Rule 102 (as interpreted by
the Commission) did apply. The Company shall promptly notify the Agent if it no longer meets the requirements set forth in Section (d) of
Rule 102.
(v) Notice
of Other Sale. Without the written consent of the Agent, the Company will not, directly or indirectly, (i) offer to sell, sell,
contract to sell, grant any option to sell or otherwise dispose of any Common Shares or securities convertible into or exchangeable for
Common Shares (other than Shares hereunder), warrants or any rights to purchase or acquire Common Shares, (ii) effect a reverse stock
split, recapitalization, share consolidation, reclassification or similar transaction affecting the outstanding Common Shares; (iii) submit
or file any registration statement under the Securities Act or any prospectus under Canadian Securities Laws in respect of any Common
Shares (other than on Form S-8 or as contemplated by this Agreement with respect to the Shares), or (iv) publicly announce the
intention of doing any of the foregoing, during the period beginning on the third Trading Day immediately prior to the date on which any
Issuance Notice is delivered to the Agent hereunder and ending on the third Trading Day immediately following the Settlement Date with
respect to Shares sold pursuant to such Issuance Notice; and will not directly or indirectly enter into any other “at the market”
or continuous equity transaction offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Shares
(other than the Shares offered pursuant to this Agreement) or securities convertible into or exchangeable for Common Shares, warrants
or any rights to purchase or acquire, Common Shares prior to the termination of this Agreement; provided, however, that such restrictions
will not be required in connection with the Company’s (i) issuance or sale of Common Shares, options to purchase Common Shares
or Common Shares issuable upon the exercise of options or other equity awards pursuant to any employee or director share option, incentive
or benefit plan, share purchase or ownership plan, long-term incentive plan, dividend reinvestment plan, inducement award under Principal
Market rules or other compensation plan of the Company or its subsidiaries, as in effect on the date of this Agreement, (ii) issuance
or sale of Common Shares issuable upon exchange, conversion or redemption of securities or the exercise or vesting of warrants, options
or other equity awards outstanding at the date of this Agreement, (iii) issuance or sale of Common Shares or securities convertible
into or exchangeable for Common Shares as consideration for mergers, acquisitions, other business combinations, joint ventures or strategic
alliances occurring after the date of this Agreement which are not used for capital raising purposes, provided that the aggregate number
of Common Shares issued or sold under this subsection (iii) shall not exceed 5% of the number of Common Shares outstanding immediately
prior to giving effect to such sale of issuance and (iv) modification of any outstanding options, warrants of any rights to purchase
or acquire Common Shares.
(w) British
Columbia Reporting Issuer. As soon as practicable after the Prospectus is filed with the Commission, and as soon as practicable after
any other amendment or supplement to the Registration Statement is filed with the Commission, the Company will file the Prospectus and
such other amendment or supplement with the British Columbia Securities Commission, pursuant to Section 4(c)(ii) of BCI 72-503.
Section 5. CONDITIONS TO DELIVERY OF ISSUANCE NOTICES AND TO
SETTLEMENT
(a) Conditions
Precedent to the Right of the Company to Deliver an Issuance Notice and the Obligation of the Agent to Sell Shares. The right of the
Company to deliver an Issuance Notice hereunder is subject to the satisfaction, on the date of delivery of such Issuance Notice, and the
obligation of the Agent to use its commercially reasonable efforts to place Shares during the applicable period set forth in the Issuance
Notice is subject to the satisfaction, on each Trading Day during the applicable period set forth in the Issuance Notice, of each of the
following conditions:
| (i) | Accuracy of the Company’s Representations and Warranties; Performance by the Company. The
Company shall have delivered the certificate required to be delivered pursuant to Section 4(o) on or before the date
on which delivery of such certificate is required pursuant to Section 4(o). The Company shall have performed, satisfied and
complied with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company
at or prior to such date, including, but not limited to, the covenants contained in Section 4(p), Section 4(q) and
Section 4(r). |
| (ii) | No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby that prohibits or directly and materially adversely affects any of
the transactions contemplated by this Agreement, and no proceeding shall have been commenced that may have the effect of prohibiting or
materially adversely affecting any of the transactions contemplated by this Agreement. |
| (iii) | Material Adverse Changes. Except as disclosed in the Prospectus and the Time of Sale Information,
(a) in the judgment of the Agent there shall not have occurred any Material Adverse Change; and (b) there shall not have occurred
any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating accorded any securities of the Company or any of its subsidiaries
by any “nationally recognized statistical rating organization” as such term is defined for purposes of Section 3(a)(62)
of the Exchange Act. |
| (iv) | No Suspension of Trading in or Delisting of Common Shares; Other Events. The trading of the Common
Shares (including without limitation the Shares) shall not have been suspended by the Commission, the Principal Market or FINRA and the
Common Shares (including without limitation the Shares) shall have been approved for listing or quotation on and shall not have been delisted
from the Principal Market or any of its constituent markets. There shall not have occurred (and be continuing in the case of occurrences
under clauses (i) and (ii) below) any of the following: (i) trading or quotation in any of the Company’s securities
shall have been suspended or limited by the Commission or by the Principal Market or trading in securities generally on the Principal
Market shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchanges
by the Commission or FINRA; (ii) a general banking moratorium shall have been declared by any of United States, Canadian or New York
authorities; or (iii) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis
or calamity, or any change in the United States, Canadian or international financial markets, or any substantial change or development
involving a prospective substantial change in United States’, Canada’s or international political, financial or economic conditions,
as in the judgment of the Agent is material and adverse and makes it impracticable to market the Shares in the manner and on the terms
described in the Prospectus or to enforce contracts for the sale of securities. |
(b) Documents
Required to be Delivered on each Issuance Notice Date. The Agent’s obligation to use its commercially reasonable efforts to
place Shares hereunder shall additionally be conditioned upon the delivery to the Agent on or before the Issuance Notice Date of a certificate
in form and substance reasonably satisfactory to the Agent, executed by the Chief Executive Officer, President or Chief Financial Officer
of the Company, to the effect that all conditions to the delivery of such Issuance Notice shall have been satisfied as at the date of
such certificate (which certificate shall not be required if the foregoing representations shall be set forth in the Issuance Notice).
(c) No
Misstatement or Material Omission. The Agent shall not have advised the Company that the Registration Statement, the Prospectus or
the Time of Sale Information, or any amendment or supplement thereto, contains an untrue statement of fact that in the Agent’s
reasonable opinion is material, or omits to state a fact that in the Agent’s reasonable opinion is material and is required to
be stated therein or is necessary to make the statements therein not misleading.
Section 6. INDEMNIFICATION AND CONTRIBUTION
(a) Indemnification
of the Agent. The Company agrees to indemnify and hold harmless the Agent, its officers and employees, and each person, if any, who
controls the Agent within the meaning of the Securities Act or the Exchange Act against any loss, claim, damage, liability or expense,
as incurred, to which the Agent or such officer, employee or controlling person may become subject, under the Securities Act, the Exchange
Act, other federal or state statutory law or regulation, or the laws or regulations of foreign jurisdictions where Shares have been offered
or sold or at common law or otherwise (including in settlement of any litigation), insofar as such loss, claim, damage, liability or expense
(or actions in respect thereof as contemplated below) 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 any amendment thereto, including any information deemed to be a part thereof
pursuant to Rule 430B under the Securities Act, or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any Free Writing Prospectus that the Company has used, referred to or filed, or is required to file, pursuant
to Rule 433(d) of the Securities Act or the Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading and to reimburse the Agent and each such officer, employee and controlling person for any and all documented
expenses (including the fees and disbursements of counsel chosen by the Agent) as such expenses are reasonably incurred by the Agent or
such officer, employee or controlling person in connection with investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim,
damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by
the Agent expressly for use in the Registration Statement, any such Free Writing Prospectus or the Prospectus (or any amendment or supplement
thereto), it being understood and agreed that the only such information furnished by the Agent to the Company consists of solely the name
of the Agent. The indemnity agreement set forth in this Section 6(a) shall be in addition to any liabilities that the
Company may otherwise have.
(b) Indemnification
of the Company, its Directors and Officers. The Agent agrees to indemnify and hold harmless the Company, each of its directors, each
of its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities
Act or the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which the Company or any such director,
officer or controlling person may become subject, under the Securities Act, the Exchange Act, or other federal or state statutory law
or regulation, or the laws or regulations of foreign jurisdictions where Shares have been offered or sold or at common law or otherwise
(including in settlement of any litigation) insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as
contemplated below), 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 any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B
under the Securities Act, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained
in any Free Writing Prospectus that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of
the Securities Act or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading,
but only to the extent arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made
in reliance upon and in conformity with written information furnished to the Company by the Agent expressly for use in the Registration
Statement, any such Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), it being understood and agreed
that the only such information furnished by the Agent to the Company consists of solely the name of the Agent, and to reimburse the Company
and each such director, officer and controlling person for any and all documented expenses (including the fees and disbursements of counsel
chosen by the Company) as such expenses are reasonably incurred by the Company or such officer, director or controlling person in connection
with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action. The indemnity
agreement set forth in this Section 6(b) shall be in addition to any liabilities that the Agent or the Company may otherwise
have.
(c) Notifications
and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 6 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 6, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify
the indemnifying party will not relieve it from any liability which it may have to any indemnified party for contribution or otherwise
than under the indemnity agreement contained in this Section 6 or to the extent it is not prejudiced as a proximate result
of such failure. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek
indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified
party; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party
in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election
so to assume the defense of such action and approval by the indemnified party of counsel (not to be unreasonably withheld, delayed or
conditioned), the indemnifying party will not be liable to such indemnified party under this Section 6 for any reasonable
and documented legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the fees and expenses of more than one separate counsel (together with local
counsel), representing the indemnified parties who are parties to such action), which counsel (together with any local counsel) for the
indemnified parties shall be selected by the Agent (in the case of counsel for the indemnified parties referred to in Section 6(a) above)
or the Company (in the case of counsel for the indemnified parties referred to in Section 6(b) above), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized in writing the
employment of counsel for the indemnified party at the expense of the indemnifying party, in each of which cases the fees and expenses
of counsel shall be at the expense of the indemnifying party and shall be paid as they are incurred.
(d) Settlements.
The indemnifying party under this Section 6 shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by Section 6(b) hereof, the indemnifying party 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
30 days after receipt by such indemnifying party of the aforesaid request; and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been
sought hereunder by such indemnified party, unless such settlement, compromise or consent includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such action, suit or proceeding.
(e) Contribution.
If the indemnification provided for in this Section 6 is for any reason held to be unavailable to or otherwise insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any
losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Agent, on the other hand, from the offering of the Shares pursuant to this
Agreement; 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 the Agent, on the other hand, in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and the Agent, on the other hand, in connection with the offering of the Shares pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total gross proceeds from the offering of the Shares (before deducting expenses)
received by the Company bear to the total commissions received by the Agent. The relative fault of the Company, on the one hand, and the
Agent, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company, on the one
hand, or the Agent, on the other hand, and the parties’ 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, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 6(c), any reasonable and documented legal or other fees or expenses reasonably incurred
by such party in connection with investigating or defending any action or claim. The provisions set forth in Section 6(c) with
respect to notice of commencement of any action shall apply if a claim for contribution is to be made under this Section 6(e);
provided, however, that no additional notice shall be required with respect to any action for which notice has been given under
Section 6(c) for purposes of indemnification.
The Company and the Agent agree that it would not
be just and equitable if contribution pursuant to this Section 6(e) 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 this Section 6(e).
Notwithstanding the provisions
of this Section 6(e), the Agent shall not be required to contribute any amount in excess of the agent fees received by the
Agent in connection with the offering contemplated hereby. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 6(e), each officer and employee of the Agent and each person, if any, who controls the Agent within the meaning
of the Securities Act or the Exchange Act shall have the same rights to contribution as the Agent, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company with the meaning of the
Securities Act and the Exchange Act shall have the same rights to contribution as the Company.
Section 7. TERMINATION & SURVIVAL
(a) Term.
Subject to the provisions of this Section 7, the term of this Agreement shall continue from the date of this Agreement until
the end of the Agency Period, unless earlier terminated by the parties to this Agreement pursuant to this Section 7.
(b) Termination;
Survival Following Termination.
| (i) | Either party may terminate this Agreement prior to the end of the Agency Period, by giving written notice
as required by this Agreement, upon ten (10) Trading Days’ notice to the other party; provided that, (A) if the Company
terminates this Agreement after the Agent confirms to the Company any sale of Shares, the Company shall remain obligated to comply with
Section 3(b)(v) with respect to such Shares and (B) Section 2, Section 6, Section 7
and Section 8 shall survive termination of this Agreement. If termination shall occur prior to the Settlement Date for any
sale of Shares, such sale shall nevertheless settle in accordance with the terms of this Agreement. |
| (ii) | In addition to the survival provision of Section 7(b)(i),
the respective indemnities, agreements, representations, warranties and other statements of the Company, of its officers and of the Agent
set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf
of the Agent or the Company or any of its or their partners, officers or directors or any controlling person, as the case may be, and,
anything herein to the contrary notwithstanding, will survive delivery of and payment for the Shares sold hereunder and any termination
of this Agreement. |
Section 8. MISCELLANEOUS
(a) Press
Releases and Disclosure. The Company may issue a press release describing the material terms of the transactions contemplated hereby
as soon as reasonably practicable following the date of this Agreement, and may file with the Commission a Current Report on Form 8-K,
with this Agreement attached as an exhibit thereto, describing the material terms of the transactions contemplated hereby, and may complete
any similar filings required under applicable Canadian Securities Laws, and the Company shall consult with the Agent prior to making such
disclosures, and the parties hereto shall use all commercially reasonable efforts, acting in good faith, to agree upon a text for such
disclosures that is reasonably satisfactory to all parties hereto. 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 hereto, except
as may be necessary or appropriate in the reasonable opinion of the party seeking to make disclosure to comply with the requirements of
applicable law or stock exchange 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 all commercially reasonable efforts, acting
in good faith, to agree upon a text for such disclosure that is reasonably satisfactory to all parties hereto.
(b) No
Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (i) the transactions contemplated by this Agreement,
including the determination of any fees, are arm’s-length commercial transactions between the Company and the Agent, (ii) when
acting as a principal under this Agreement, the Agent is and has been acting solely as a principal and is not the agent or fiduciary of
the Company, or its stockholders, creditors, employees or any other party, (iii) the Agent has not assumed nor will assume an advisory
or fiduciary responsibility in favor of the Company with respect to the transactions contemplated hereby or the process leading thereto
(irrespective of whether the Agent has advised or is currently advising the Company on other matters) and the Agent does not have any
obligation to the Company with respect to the transactions contemplated hereby except the obligations expressly set forth in this Agreement,
(iv) the Agent and its respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Company, and (v) the Agent has not provided any legal, accounting, regulatory or tax advice with respect to the transactions
contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
(c) Research
Analyst Independence. The Company acknowledges that the Agent’s research analysts and research departments are required to and
should be independent from their respective investment banking divisions and are subject to certain regulations and internal policies,
and as such the Agent’s research analysts may hold views and make statements or investment recommendations and/or publish research
reports with respect to the Company or the offering that differ from the views of their respective investment banking divisions. The Company
understands that the Agent is a full service securities firm and as such from time to time, subject to applicable securities laws, may
effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities
of the companies that may be the subject of the transactions contemplated by this Agreement.
(d) Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties hereto
as follows:
If
to the Agent:
Jefferies LLC
520 Madison Avenue
New York, NY 10022
Facsimile: (646) 786-5719
Attention: General Counsel
with a copy (which shall not constitute
notice) to:
Latham & Watkins LLP
12670 High Bluff Drive
San Diego, CA 92130
Facsimile:
(858) 523-5450
Attention: Michael E. Sullivan, Esq.
If to the Company:
ESSA Pharma Inc.
999 West Broadway, Suite 720
Vancouver,
BC V5Z 1K5
Attention: David Parkinson, Chief Executive Officer
with a copy (which shall not constitute
notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, NY 10001-8602
Attention: Michael Hong
and a copy (which shall not constitute
notice) to:
Blake, Cassels & Graydon LLP
1133 Melville Street, Suite 3500
Vancouver,
BC V6E 4E5
Attention: Joseph Garcia.
Any party hereto may change the address for receipt
of communications by giving written notice to the others in accordance with this Section 8(d).
(e) Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 6, and in each case their respective successors, and no other person
will have any right or obligation hereunder. The term “successors” shall not include any purchaser of the Shares as such from
the Agent merely by reason of such purchase.
(f) Partial
Unenforceability. The invalidity or unenforceability of any Article, Section, paragraph or provision of this Agreement shall not affect
the validity or enforceability of any other Article, Section, paragraph or provision hereof. If any Article, Section, paragraph or provision
of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and
only such minor changes) as are necessary to make it valid and enforceable.
(g) Governing
Law Provisions. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York applicable
to agreements made and to be performed in such state. 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 “Specified 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 Specified
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.
(h) Currency
Provisions. The obligations of the Company pursuant to this Agreement in respect of any sum due to the Agent shall, notwithstanding
any judgment in a currency other than United States dollars, not be discharged until the first business day, following receipt by the
Agent of any sum adjudged to be so due in such other currency, on which the Agent may in accordance with normal banking procedures purchase
United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to the
Agent in United States dollars hereunder, the Company agrees as a separate obligation and notwithstanding any such judgment, to indemnify
the Agent against such loss. If the United States dollars so purchased are greater than the sum originally due to the Agent hereunder,
the Agent agrees to pay to the Company an amount equal to the excess of the dollars so purchased over the sum originally due to the Agent
hereunder. All payments made by the Company under this Agreement, if any, will be made without withholding or deduction for or on account
of any present or future taxes, duties, assessments or governmental charges of whatever nature (other than taxes on net income) imposed
or levied by or on behalf of Canada or any political subdivision or any taxing authority thereof or therein unless the Company is or becomes
required by law to withhold or deduct such taxes, duties, assessments or other governmental charges. In such event, the Company will pay
such additional amounts as will result, after such withholding or deduction, in the receipt by the Agent and each person controlling the
Agent, as the case may be, of the amounts that would otherwise have been receivable in respect thereof.
(i) General
Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral
and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may
be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument, and may be delivered by facsimile transmission or by electronic delivery of a portable document
format (PDF) file. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein
(express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The Article and
Section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this
Agreement.
[Signature Page Immediately Follows]
If the foregoing is in accordance
with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument,
along with all counterparts hereof, shall become a binding agreement in accordance with its terms
|
Very truly yours, |
|
|
|
ESSA PHARMA INC. |
|
|
|
By: |
/s/ David Wood |
|
|
Name: |
David Wood |
|
|
Title: |
Chief Financial Officer |
The foregoing Agreement is hereby confirmed and
accepted by the Agent in New York, New York as of the date first above written.
JEFFERIES LLC |
|
|
|
By: |
/s/ Donald Lynaugh |
|
|
Name: |
Donald Lynaugh |
|
|
Title: |
Managing Director |
|
[Signature Page to Sales Agreement]
EXHIBIT A
ISSUANCE NOTICE
[Date]
Jefferies LLC
520 Madison Avenue
New York, New York 10022
Attn: [__________]
Reference is made to the Open Market Sale Agreement
between ESSA Pharma Inc. (the “Company”) and Jefferies LLC (the “Agent”) dated as of November 3,
2023. The Company confirms that all conditions to the delivery of this Issuance Notice are satisfied as of the date hereof.
Date of Delivery of Issuance Notice (determined pursuant to Section 3(b)(i)):
_______________________
Issuance Amount (equal to the total Sales Price for such Shares):
Number of days in selling period: |
|
|
|
|
First date of selling period: |
|
|
|
|
Last date of selling period: |
|
|
|
|
Settlement Date(s) if other than
standard T+2 settlement: |
|
|
|
|
Floor Price Limitation (in no event less than
US$1.00 without the prior written consent of the Agent, which consent may be withheld in the Agent’s sole discretion): US$ ____
per share
Schedule A
Notice Parties
The Company
David Parkinson (dparkinson@essapharma.com)
David Wood (dwood@essapharma.com)
The Agent
Dustin Tyner (dtyner@jefferies.com)
Donald Lynaugh (dlynaugh@jefferies.com)
Exhibit 5.1
| Blake, Cassels & Graydon LLP
Barristers &
Solicitors
Patent & Trade-mark Agents
1133 Melville Street
Suite 3500, The Stack
Vancouver, BC V6E 4E5 Canada
Tel: 604-631-3300 Fax: 604-631-3309
|
November 3, 2023
Reference: 99465/1
ESSA Pharma Inc.
Suite 720 – 999 W. Broadway Street
Vancouver, British Columbia
V5Z 1K5
| RE: | Registration Statement on Form S-3 of ESSA Pharma Inc. |
We have acted as Canadian counsel to ESSA Pharma
Inc. (the “Company”), a company incorporated under the laws of British Columbia, in connection with the offer and sale
by the Company of up to US$50,000,000 of common shares in the capital of the Company (the “Shares”), pursuant to a
Registration Statement on Form S-3 (Registration No. 333-274584) (the “Registration Statement”), filed by
the Company on September 19, 2023, as amended, with the Securities and Exchange Commission (the “SEC”) under the
Securities Act of 1933, as amended (the “Securities Act”), the prospectus included in the Registration Statement (the
“Base Prospectus”), and the prospectus supplement related to the Shares filed by the Company on November 3, 2023
with the SEC pursuant to Rule 424(b)(5) promulgated under the Securities Act (together with the Base Prospectus, the “Prospectus”).
The offer and sale of the Shares is being made
pursuant to that certain at-the-market equity offering sales agreement (the “Sales Agreement”), dated as of November 3,
2023, by and between the Company and Jefferies LLC.
In connection with giving this opinion, we have
examined the Registration Statement (including exhibits thereto) and the Prospectus. We have also examined originals, certified or otherwise
identified to our satisfaction, of such public and corporate records, certificates, instruments and other documents as we have considered
necessary in order to express the opinion set out below. With respect to the accuracy of factual matters material to this opinion, we
have relied upon certificates or comparable documents and representations of public officials and of officers and representatives of the
Company.
In giving this opinion, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents
submitted to us as copies, certified or otherwise identified to our satisfaction. We have also considered such questions of law as we
have deemed relevant and necessary as a basis for the opinion hereinafter expressed.
The opinion expressed herein is limited to matters
governed by the laws of the Province of British Columbia and the laws of Canada applicable therein.
Based and relying upon and subject to the foregoing,
we are of the opinion that the offer and sale of the Shares has been duly authorized by the Company and, when the Shares are issued and
paid for in accordance with the terms of the Sales Agreement, the Shares will be validly issued, fully paid and non-assessable shares
in the capital of the Company.
| Blake, Cassels & Graydon LLP
Barristers &
Solicitors
Patent & Trade-mark Agents
1133 Melville Street
Suite 3500, The Stack
Vancouver, BC V6E 4E5 Canada
Tel: 604-631-3300 Fax: 604-631-3309
|
We hereby consent to the reference to our
firm under the headings “Legal Matters” and “Enforceability of Civil Liabilities” in the Prospectus and to
the filing of this opinion letter as an exhibit to a Current Report on Form 8-K to be filed by the Company with the SEC for
incorporation by reference into the Registration Statement. In giving this consent, we do not hereby agree that we are within the
category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the
SEC promulgated thereunder.
This opinion is effective as at the date hereof
and is based upon laws in effect and facts in existence as at the date hereof. We express no opinion as to the effect of future laws or
judicial decisions on the subject matter hereof, nor do we undertake any duty to modify this opinion to reflect subsequent facts or developments
concerning the Company or developments in the law occurring after the date hereof.
Yours truly,
“Blake Cassels & Graydon LLP”
Exhibit 99.1
ESSA Pharma Enters into At-The-Market Equity Offering Sales Agreement
SOUTH SAN
FRANCISCO, California and VANCOUVER, Canada, Nov 6, 2023 – ESSA Pharma Inc. ("ESSA", or the "Company")
(NASDAQ: EPIX), a clinical-stage pharmaceutical company focused on developing novel therapies for the treatment of prostate cancer, today
announced that it has entered into an Open Market Sale AgreementSM (the “ATM Sales Agreement”) with Jefferies LLC, effective
as of November 3, 2023. Under the ATM Sales Agreement, ESSA may sell its common shares in the capital of the Company from time to
time for up to US$50.0 million in aggregate sales proceeds. No offers or sales of common shares will be made in Canada, to anyone known
by Jefferies, LLC to be a resident of Canada or on or through the facilities of any stock exchange or trading markets in Canada.
The offering of common shares is being made
pursuant to a prospectus supplement to the Company’s registration statement on Form S-3, including a base prospectus, filed
with the United States Securities and Exchange Commission (the “SEC”). Before you invest in the securities offered, you should
read the prospectus supplement relating to and describing the terms of the offering and the related registration statement on Form S-3
and other documents that ESSA has filed with the SEC for more complete information about ESSA and the offering. You may get these documents
for free by visiting EDGAR on the SEC website at www.sec.gov. Alternatively, copies of the prospectus supplement relating to the offering
may be obtained, when available, from: Jefferies LLC, Attention: Equity Syndicate Prospectus Department, 520 Madison Avenue, New York,
New York 10022, telephone: 1-877-821-7388 or by emailing Prospectus_Department@jefferies.com.
This press release does not constitute an
offer to sell or the solicitation of an offer to buy the securities being offered, nor may there be any sale of the securities being offered
in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or jurisdiction.
About ESSA Pharma Inc.
ESSA is a clinical-stage pharmaceutical company
focused on developing novel and proprietary therapies for the treatment of patients with prostate cancer.
Forward-Looking Statement Disclaimer
This release contains certain information
which, as presented, constitutes "forward-looking information" within the meaning of the Private Securities Litigation Reform
Act of 1995 and/or applicable Canadian securities laws. Forward-looking information involves statements that relate to future events and
often addresses expected future business and financial performance, containing words such as "anticipate", "believe",
"plan", "estimate", "expect", and "intend", statements that an action or event "may",
"might", "could", "should", or "will" be taken or occur, or other similar expressions and includes,
but is not limited to, statements regarding expectations regarding our offering from time to time of common shares in the capital of the
Company pursuant to the ATM Sales Agreement.
Forward-looking statements and information
are subject to various known and unknown risks and uncertainties, many of which are beyond the ability of ESSA to control or predict,
and which may cause ESSA's actual results, performance or achievements to be materially different from those expressed or implied thereby.
Such statements reflect ESSA's current views with respect to future events, are subject to risks and uncertainties and are necessarily
based upon a number of estimates and assumptions that, while considered reasonable by ESSA as of the date of such statements, are inherently
subject to significant medical, scientific, business, economic, competitive, political and social uncertainties and contingencies. In
making forward looking statements, ESSA may make various material assumptions, including but not limited to (i) the accuracy of ESSA's
financial projections; (ii) obtaining positive results of clinical trials; (iii) obtaining necessary regulatory approvals; and
(iv) general business, market and economic conditions.
Forward-looking information is developed based
on assumptions about such risks, uncertainties and other factors set out herein and in ESSA's Annual Report on Form 10-K dated December 13,
2022, under the heading "Risk Factors", a copy of which is available on ESSA's profile on EDGAR at www.sec.gov and on SEDAR+
at www.sedarplus.ca, and as otherwise disclosed from time to time on ESSA's EDGAR and SEDAR+ profiles. Forward-looking statements are
made based on management's beliefs, estimates and opinions on the date that statements are made and ESSA undertakes no obligation to update
forward-looking statements if these beliefs, estimates and opinions or other circumstances should change, except as may be required by
applicable United States and Canadian securities laws. Readers are cautioned against attributing undue certainty to forward-looking statements.
Contacts
ESSA Pharma, Inc.
David Wood, Chief Financial Officer
778.331.0962
dwood@essapharma.com
Investors and Media:
Argot Partners
212.600.1902
essa@argotpartners.com
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