Exhibit 99.2
CORREVIO PHARMA CORP.
Common Shares
Controlled Equity OfferingSM
Sales Agreement
March 13, 2019
Cantor Xxxxxxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Correvio Pharma Corp.,
a corporation formed under the Canada Business Corporations Act (the “Company”), confirms its
agreement (this “Agreement”) with Cantor Xxxxxxxxxx & Co. (the “Agent”),
as follows:
1. Issuance
and Sale of Shares.
(a) From
time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, the Company may issue
and sell through the Agent, acting as agent, common shares (the “Placement Shares”) of the Company (the
“Common Shares”), having an aggregate offering price of up to U.S. $50,000,000; provided, however,
that in no event shall the Company issue or sell through the Agent such number of Placement Shares for which the aggregate offering
price exceeds the aggregate dollar amount of Common Shares registered on the Registration Statement (as defined below) pursuant
to which the offering is being made (taking into account all current and future prospectus supplements filed with respect to the
Registration Statement and any post-effective amendments thereto); provided, further, that with respect to “at-the-market”
distributions of Placement Shares, the market value of the Placement Shares distributed under any single Prospectus Supplement
(defined below) shall not exceed 10% of the aggregate market value of the Company’s outstanding Common Shares as of the date
specified in Section 9.1 of National Instrument 44-102—Shelf Distributions (“NI 44-102”),
which shall be calculated in accordance with Section 9.2 of NI 44-102 (the “Maximum Amount”). Notwithstanding
anything to the contrary contained herein, compliance with the limitations set forth in this Section 1 and Part 9 of NI 44-102
on the amount of Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company, and the
Agent shall have no obligation in connection with such compliance. The issuance and sale of Placement Shares through the Agent
will be effected pursuant to the Registration Statement filed by the Company and declared effective by the Securities and Exchange
Commission (the “Commission”), although nothing in this Agreement shall be construed as requiring the
Company to use the Registration Statement to issue Common Shares.
(b) Short
Form Prospectus. The Company has prepared and filed with the British Columbia Securities Commission (the “BCSC”)
and the other Canadian provincial securities regulatory authorities other than the Québec Autorité des marchés
financiers (the BCSC and such other regulatory authorities, collectively, the “Canadian Commissions”),
a preliminary short form base shelf prospectus, dated June 22, 2018, relating to the offering of up to an aggregate amount of U.S.
$250,000,000 of Common Shares, preferred shares, debt securities, warrants, subscription receipts and units or any combination
thereof (collectively, the “Securities”) and a final short form base shelf prospectus, dated July 5,
2018, in respect of offers and sales, from time to time of the Securities, (together with any documents incorporated therein by
reference, and any supplements or amendments thereto (collectively, the “Canadian Base Prospectus”) in
accordance with the applicable securities laws of each of the provinces of Canada, other than Québec (the “Qualifying
Jurisdictions”), and the respective applicable rules and regulations under such laws, together with applicable published
national, multilateral and local instruments, notices and blanket orders in each of the Qualifying Jurisdictions (collectively
“Canadian Securities Laws”). The Company has prepared the Canadian Base Prospectus pursuant to National
Instrument 44-101—Short Form Prospectus Distributions and NI 44-102 (together, the “Shelf Procedures”).
The Company has obtained from the BCSC a receipt for the Canadian Base Prospectus (a “Final Receipt”)
and each of the other Canadian Commissions is deemed to have issued a Final Receipt under National Policy 11-202 — Process
for Prospectus Reviews in Multiple Jurisdictions in respect of the Canadian Base Prospectus.
(c) U.S.
Base Prospectus. The Company has prepared and filed with the Commission pursuant to the Canada/U.S. Multi-Jurisdictional Disclosure
System adopted by the Canadian Commissions and the Commission (the “MJDS”), a registration statement
on Form F- 10 (Registration No. 333-225852) registering the offering and sale, from time to time, of the Securities under the U.S.
Securities Act of 1933, as amended (together with the rules and regulations thereunder, the “Securities Act”),
including the Canadian Base Prospectus (together with any documents incorporated therein by reference, any supplements or amendments
thereto and with such deletions therefrom and additions or changes thereto as are permitted or required by Form F-10 and the applicable
rules and regulations of the Commission (the “Rules and Regulations”)) (the “U.S. Base Prospectus”).
The Canadian Base Prospectus and the U.S. Base Prospectus are hereinafter collectively referred to as the “Base Prospectuses.”
(d) Prospectus
Supplements. The Company will file (i) with the BCSC, in accordance with the Shelf Procedures, one or more prospectus supplements
setting forth the Shelf Information (as defined below) (the most recent prospectus supplement relating to the Placement Shares
to be issued and sold pursuant to this Agreement, including any documents incorporated therein by reference and any supplements
or amendments thereto, the “Canadian Prospectus Supplement”), and (ii) with the Commission, the Canadian
Prospectus Supplement (the most recent prospectus supplement relating to the Placement Shares to be issued and sold pursuant to
this Agreement, with such deletions therefrom and additions or changes thereto as are permitted or required by Form F-10 and the
applicable Rules and Regulations, the “U.S. Prospectus Supplement”). The information, if any, included
in the Canadian Prospectus Supplement that is omitted from the Canadian Base Prospectus for which a Final Receipt has been obtained
from the BCSC, but that is deemed under the Shelf Procedures to be incorporated by reference into the Canadian Base Prospectus
as of each Applicable Time, is referred to herein as the “Shelf Information.” The U.S. Prospectus Supplement
and the Canadian Prospectus Supplement are hereinafter collectively referred to as the “Prospectus Supplements.”
(e) Registration
Statement. The registration statement on Form F-10, including the exhibits thereto and the documents incorporated by reference
therein and including the U.S. Prospectus (as defined below), as amended at the time it became effective, is herein called the
“Registration Statement.” Any reference to any amendment or supplement to the Registration Statement
or the U.S. Prospectus shall be deemed to refer to and include any documents filed with the Commission after the effectiveness
of such Registration Statement or the date of such U.S. Prospectus and prior to the termination of this offering and which are
incorporated by reference in such Registration Statement or U.S. Prospectus. The Company has also filed with the Commission an
appointment of agent for service of process on Form F-X (the “Form F-X”) in connection with the filing
of the Registration Statement. The term “Canadian Prospectus” shall refer to the Canadian Base Prospectus,
as supplemented by the most recent Canadian Prospectus Supplement relating to the Placement Shares to be issued and sold pursuant
to this Agreement, including, in each case, the documents incorporated by reference therein. The term “U.S. Prospectus”
shall refer to the U.S. Base Prospectus, as supplemented by the most recent U.S. Prospectus Supplement relating to the Placement
Shares to be issued and sold pursuant to this Agreement, including, in each case, the documents incorporated by reference therein.
Any amendment to the Canadian Prospectus, and any amended or supplemented prospectus or auxiliary material, information, evidence,
return, report, application, statement or document that may be filed by or on behalf of the Company under Canadian Securities Laws
prior to the termination of this offering or, any such document deemed to be incorporated by reference into the Canadian Prospectus,
prior to the termination of this offering, is referred to herein collectively as the “Supplementary Material.”
The U.S. Prospectus and the Canadian Prospectus are hereinafter collectively referred to as the “Prospectuses.”
Any reference herein to the Registration Statement, the Prospectuses or any amendment or supplement thereto shall be deemed to
refer to and include the documents incorporated by reference therein, and any reference therein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement or the Prospectuses shall be deemed
to refer to and include the filing after the execution hereof of any document with the BCSC or the Commission deemed to be incorporated
by reference therein (the “Incorporated Documents”). For purposes of this Agreement, all references to
the Registration Statement, the U.S. Prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System (“XXXXX”).
For purposes of this Agreement, all references to the Registration Statement, the Canadian Base Prospectus, the U.S. Prospectus
or the Canadian Prospectus shall be deemed to include any replacement thereof upon the expiry of the Registration Statement and
the Canadian Base Prospectus.
Each of the Company and
the Agent hereby agree and acknowledge that all sales and solicitations of sales of Placement Shares by the Agent as agent of the
Company shall be made solely in the United States.
2. Placements.
Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”),
it will notify the Agent by email notice (or other method mutually agreed to in writing by the parties) of the number of Placement
Shares to be issued, the time period during which sales are requested to be made, any limitation on the number of Placement Shares
that may be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”),
the form of which is attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from
the Company set forth on Schedule 3 (with a copy to each of the other individuals from the Company listed on such schedule),
and shall be addressed to each of the individuals from the Agent set forth on Schedule 3, as such Schedule 3 may
be amended from time to time. The Placement Notice shall be effective unless and until (i) the Agent declines to accept the
terms contained therein for any reason, in its sole discretion, by providing email notice (or other method mutually agreed to in
writing by the parties) to the individuals from the Company set forth on Schedule 3, (ii) the entire amount of the
Placement Shares thereunder have been sold, (iii) the Company suspends or terminates the Placement Notice, (iv) the Company
issues a subsequent Placement Notice with parameters superseding those in the earlier Placement Notice, or (v) this Agreement has
been terminated under the provisions of Section 13. The amount of any discount, commission or other compensation to be paid
by the Company to Agent in connection with the sale of the Placement Shares shall be calculated in accordance with the terms set
forth in Schedule 2. It is expressly acknowledged and agreed that neither the Company nor the Agent will have any obligation
whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers a Placement Notice to the
Agent and the Agent does not decline such Placement Notice pursuant to the terms set forth above, and then only upon the terms
specified therein and herein. In the event of a conflict between the terms of this Agreement and the terms of a Placement Notice,
the terms of the Placement Notice will control.
3. Sale
of Placement Shares by the Agent.
Subject to the terms and
conditions of this Agreement, the Agent, for the period specified in the Placement Notice, will use its commercially reasonable
efforts consistent with its normal trading and sales practices and applicable state, provincial and federal laws, rules and regulations
and the rules of the Toronto Stock Exchange, the Nasdaq Capital Market (“Nasdaq” and, together with the
Toronto Stock Exchange, the “Exchanges”), to sell the Placement Shares up to the amount specified, and
otherwise in accordance with the terms of such Placement Notice. The Agent will provide written confirmation to the Company no
later than the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of
Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the compensation payable by the Company
to the Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company,
with an itemization of the deductions made by the Agent (as set forth in Section 5(b)) from the gross proceeds that it receives
from such sales. Subject to the terms of the Placement Notice, the Agent may sell Placement Shares only by methods deemed to be
an “at-the-market distribution” as defined in Section 1.1 of NI 44-102, including without limitation sales made directly
on Nasdaq or on any other existing trading market for the Common Shares in the United States and otherwise in accordance with Part
9 and Part 9A of NI 44-102. The Agent acknowledges and agrees that it will not purchase any Placement Shares on a principal basis
pursuant to this Agreement. “Trading Day” means any day on which Common Shares are traded on the Nasdaq.
4. Suspension
of Sales. The Company or the Agent may, upon notice to the other party in writing (including by email correspondence to each
of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged
by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable
facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 3), suspend
any sale of Placement Shares (a “Suspension”); provided, however, that such Suspension
shall not affect or impair any party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt
of such notice. While a Suspension is in effect any obligation under Sections 7(l), 7(m), and 7(n) with respect
to the delivery of certificates, opinions, or comfort letters to the Agent, shall be waived. Each of the parties agrees that no
such notice under this Section 4 shall be effective against any other party unless it is made to one of the individuals
named on Schedule 3 hereto, as such Schedule may be amended from time to time.
5. Sale
and Delivery to the Agent; Settlement.
(a) Sale
of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and
conditions herein set forth, upon the Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement
Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement,
the Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal
trading and sales practices and applicable law and regulations to sell such Placement Shares up to the amount specified, and otherwise
in accordance with the terms of such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that
the Agent will be successful in selling Placement Shares, (ii) the Agent will incur no liability or obligation to the Company or
any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Agent to use its commercially
reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Placement
Shares as required under this Agreement and (iii) the Agent shall sell the Placement Shares on an agency basis only and shall not
purchase Placement Shares on a principal basis pursuant to this Agreement.
(b) Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement
Shares will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way trading) following
the date on which such sales are made (each, a “Settlement Date”). The Agent shall notify the Company
of each sale of Placement Shares no later than the opening of the Trading Day immediately following the Trading Day on which it
has made sales of Placement Shares hereunder. The amount of proceeds to be delivered to the Company on a Settlement Date against
receipt of the Placement Shares sold (the “Net Proceeds”) will be equal to the aggregate sales price
received by the Agent, after deduction for (i) the Agent’s commission, discount or other compensation for such sales payable
by the Company pursuant to Section 2 hereof, and (ii) any reasonable and documented transaction fees imposed by any Governmental
Authority (defined below) in respect of such sales.
(c)
Delivery of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to,
electronically transfer the Placement Shares being sold by crediting the Agent’s or its designee’s account (provided
the Agent shall have given the Company written notice of such designee at least one Trading Day prior to the Settlement Date) at
The Depository Trust Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be
mutually agreed upon by the parties hereto which in all cases shall be freely tradable, transferable, registered shares in good
deliverable form. On each Settlement Date, the Agent will deliver the related Net Proceeds in same day funds to an account designated
by the Company on, or prior to, the Settlement Date. If the Company, or its transfer agent (if applicable), defaults in its obligation
to deliver Placement Shares on a Settlement Date, the Company agrees that in addition to and in no way limiting the rights and
obligations set forth in Section 10(a), it will (i) hold the Agent harmless against any loss, claim, damage, or expense
(including reasonable and documented legal fees and expenses), as incurred, arising out of or in connection with such default by
the Company or its transfer agent (if applicable) and (ii) pay to the Agent (without duplication) any commission, discount, or
other compensation to which it would otherwise have been entitled absent such default.
(d) Denominations;
Registration. Certificates for the Placement Shares, if any, shall be in such denominations and registered in such names
as the Agent may request in writing at least one full Business Day (as defined below) before the Settlement Date. The certificates
for the Placement Shares, if any, will be made available by the Company for examination and packaging by the Agent in The City
of New York not later than noon (New York time) on the Business Day prior to the Settlement Date.
(e) Limitations
on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares
if, after giving effect to the sale of such Placement Shares, the aggregate gross sales proceeds of Placement Shares sold pursuant
to this Agreement would exceed the lesser of (A) together with all sales of Placement Shares under this Agreement, the Maximum
Amount and (B) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s board
of directors, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Agent in writing.
Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares pursuant to this Agreement
at a price lower than the minimum price authorized from time to time by the Company’s board of directors, a duly authorized
committee thereof or a duly authorized executive committee. Further, under no circumstances shall the Company cause or permit the
aggregate offering amount of Placement Shares sold pursuant to this Agreement to exceed the Maximum Amount.
6. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with Agent that as of the date of this Agreement
and as of each Applicable Time (as defined below), unless such representation, warranty or agreement specifies a different time
or times:
(a) Registration
Statement and Prospectuses. The Company and the transactions contemplated by this Agreement meet the requirements for and comply
with the applicable conditions set forth in Form F-10 under the Securities Act. The Registration Statement has been filed with
the Commission and has been declared effective by the Commission under the Securities Act. The Prospectus Supplement will name
the Agent as the agent in the section entitled “Plan of Distribution.” The Company has not received, and has no notice
of, any order of the Commission or a Canadian Commission preventing or suspending the use of the Registration Statement, or threatening
or instituting proceedings for that purpose. The Registration Statement complies in all material respects with the requirements
of Form F-10 under the Securities Act and the offer and sale of Placement Shares as contemplated hereby (and assuming compliance
by the Agent with their obligations hereunder) meet the requirements of NI 44-102 and comply in all material respects with said
National Instrument and/or the conditions of any exemptive relief order issued by the BCSC exempting the Company from the requirements
to comply with certain provisions thereof. Any statutes, regulations, contracts or other documents that are required to be described
in the Registration Statement or the Prospectuses or to be filed as exhibits to the Registration Statement have been or will be
in the case of the Prospectuses, so described or filed. Copies of the Registration Statement, the Prospectuses, and any such amendments
or supplements and all documents incorporated by reference therein that were filed with the Commission on or prior to the date
of this Agreement have been delivered, or are available through XXXXX, to Agent and its counsel. The Company has not distributed
and, prior to the later to occur of each Settlement Date and completion of the distribution of the Placement Shares, will not distribute
any offering material in connection with the offering or sale of the Placement Shares other than the Registration Statement and
the Prospectuses and any Issuer Free Writing Prospectus (as defined in Section 25 below) to which the Agent has consented.
The Common Shares are registered pursuant to Section 12(b) of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and currently listed on the Exchanges under the trading symbol “CORV.” The Company has taken no
action designed to, or likely to have the effect of, terminating the registration of the Common Shares under the Exchange Act,
delisting the Common Shares from the Exchanges, nor has the Company received any notification that the Commission or a Canadian
Commission or the Exchanges is contemplating terminating such registration or listing. To the Company’s knowledge, it is
in compliance with all applicable listing and maintenance requirements of the Exchanges.
(b) No
Misstatement or Omission. The Registration Statement, when it became effective, complied in all material respects with the
requirements of the Securities Act. The U.S. Prospectus, as of the date of the U.S. Prospectus Supplement, complied, and any amendment
or supplement thereto will comply, on the date thereof, in all material respects with the requirements of the Securities Act. At
each Settlement Date, the Registration Statement and the U.S. Prospectus, as of such date, will comply in all material respects
with the requirements of the Securities Act. The Registration Statement, when it became effective, did not, and 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
statements therein not misleading. The U.S. Prospectus, as of the date of the U.S. Prospectus Supplement, and any amendment and
supplement thereto, on the date thereof and at each Applicable Time (defined below), did not or will not include an untrue statement
of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The documents incorporated by reference in the U.S. Prospectus did not, and any further documents
filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue statement of a material
fact or omit to state a material fact required to be stated in such document or necessary to make the statements in such document,
in light of the circumstances under which they were made, not misleading. The foregoing shall not apply to statements in, or omissions
from, any such document which are made in reliance upon, and in conformity with, information furnished to the Company by the Agent
specifically for use in the preparation thereof. In addition, the Canadian Prospectus, and any amendment and supplement thereto,
on the date thereof and at each Applicable Time (defined below), did not or will not include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading. The documents incorporated by reference in the Canadian Prospectus did not, and any further documents
filed and incorporated by reference therein will not, when filed with the Canadian Commissions, contain an untrue statement of
a material fact or omit to state a material fact required to be stated in such document or necessary to make the statements in
such document, in light of the circumstances under which they were made, not misleading. The foregoing shall not apply to statements
in, or omissions from, any such document which are made in reliance upon, and in conformity with, information furnished to the
Company by the Agent specifically for use in the preparation thereof. The U.S. Prospectus will conform to the Canadian Prospectus
except for such deletions or changes therefrom and additions thereto as are permitted or required by Form F-10 and the Rules and
Regulations.
(c) Conformity
with Securities Act and Exchange Act. The Registration Statement, the Prospectuses, any Issuer Free Writing Prospectus or any
amendment or supplement thereto, and the Incorporated Documents, when such documents were or are filed with the Commission under
the Securities Act or the Exchange Act or became or become effective under the Securities Act, as the case may be, conformed or
will conform in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable.
(d) Financial
Information. The consolidated financial statements of the Company included or incorporated by reference in the Registration
Statement and the U.S. Prospectus, together with the related notes and schedules, present fairly, in all material respects, the
consolidated financial position of the Company and the Subsidiaries (as defined below) as of the dates indicated and the consolidated
balance sheets, results of operations, cash flows and changes in shareholders’ equity of the Company for the periods specified
and have been prepared in compliance with the requirements of the Securities Act and Exchange Act, as applicable, and in conformity
with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis
(except for such adjustments to accounting standards and practices as are noted therein) during the periods involved; the other
financial and statistical data with respect to the Company and the Subsidiaries contained or incorporated by reference in the Registration
Statement and the U.S. Prospectus, are accurately and fairly presented in all material respects, and prepared on a basis consistent
with the financial statements and books and records of the Company; there are no financial statements (historical or pro forma)
that are required to be included or incorporated by reference in the Registration Statement, or the U.S. Prospectus that are not
included or incorporated by reference as required; the Company and the Subsidiaries do not have any material liabilities or obligations,
direct or contingent (including any off balance sheet obligations), not described in the Registration Statement, and the U.S. Prospectus
which are required to be described in the Registration Statement or the U.S. Prospectus under the Securities Act or the Canadian
Prospectus under Canadian Securities Law; and all disclosures contained or incorporated by reference in the Registration Statement
and the U.S. Prospectus, if any, regarding financial measures that do not comply with the “issuer’s GAAP” (as
defined in National Instrument 52-107 – Acceptable Accounting Policies and Auditing Standards) applicable to the Company
comply in all material respects with the Canadian Securities Administrators Staff Notice 52-306, to the extent applicable.
(e) Conformity
with XXXXX Filing. The U.S. Prospectus delivered to Agent for use in connection with the sale of the Placement Shares pursuant
to this Agreement will be identical to the version of the U.S. Prospectus created to be transmitted to the Commission for filing
via XXXXX, except to the extent permitted by Regulation S-T.
(f) Organization.
The Company and each of its Subsidiaries (as defined below) are duly organized, validly existing as a corporation and in good standing
under the laws of their respective jurisdictions of organization. The Company and each of its Subsidiaries are duly licensed or
qualified as a foreign corporation for transaction of business and in good standing under the laws of each other jurisdiction in
which their respective ownership or lease of property or the conduct of their respective businesses requires such license or qualification,
and have all corporate power and authority necessary to own or hold their respective properties and to conduct their respective
businesses as described in the Registration Statement and the Prospectuses, except where the failure to be so qualified or in good
standing or have such power or authority would not or would not reasonably be expected to, individually or in the aggregate, have
a material adverse effect on the assets, business, operations, earnings, properties, condition (financial or otherwise), prospects,
shareholders’ equity or results of operations of the Company and the Subsidiaries (as defined below) taken as a whole, or
prevent or materially interfere with consummation of the transactions contemplated hereby (a “Material Adverse Effect”).
(g) Subsidiaries.
The subsidiaries set forth on Schedule 4 (collectively, the “Subsidiaries”) are the Company’s
only significant subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X promulgated by the Commission).. Except as
set forth in the Registration Statement and in the Prospectuses, the Company owns, directly or indirectly, all of the equity interests
of the Subsidiaries free and clear of any lien, charge, security interest, encumbrance, right of first refusal or other restriction,
and all the equity interests of the Subsidiaries are validly issued and are fully paid, nonassessable and free of preemptive and
similar rights. No Subsidiary is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making
any other distribution on such Subsidiary’s capital stock, from repaying to the Company any loans or advances to such Subsidiary
from the Company or from transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary
of the Company.
(h) No
Violation or Default. Neither the Company nor any of its Subsidiaries is (i) in violation of its charter or by-laws or
similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party
or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of
its Subsidiaries are subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any
Governmental Authority, except, in the case of each of clauses (ii) and (iii) above, for any such violation or default that would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as described in the Registration
Statement, Prospectuses or the Incorporated Documents, to the Company’s knowledge, no other party under any material contract
or other agreement to which it or any of its Subsidiaries is a party is in default in any respect thereunder where such default
would reasonably be expected to have a Material Adverse Effect.
(i) No
Material Adverse Change. Subsequent to the respective dates as of which information is given in the Registration Statement,
the Prospectuses and the Free Writing Prospectuses, if any (including the Incorporated Documents), there has not been (i) any event
or condition that has had a Material Adverse Effect or the occurrence of any development that the Company reasonably expects will
result in a Material Adverse Effect, (ii) any transaction which is material to the Company and the Subsidiaries taken as a whole,
(iii) any obligation or liability, direct or contingent (including any off-balance sheet obligations), incurred by the Company
or any Subsidiary, which is material to the Company and the Subsidiaries taken as a whole, (iv) any material change in the share
capital or outstanding long-term indebtedness of the Company or any of its Subsidiaries or (v) any dividend or distribution of
any kind declared, paid or made on the capital stock of the Company or any Subsidiary, in each case above in the ordinary course
of business or as otherwise disclosed in the Registration Statement or Prospectuses (including the Incorporated Documents).
(j) Capitalization.
The issued and outstanding shares of the capital of the Company have been validly issued, are fully paid and nonassessable and,
other than as disclosed in the Registration Statement or the Prospectuses, are not subject to any preemptive rights, rights of
first refusal or similar rights. The Company has an authorized, issued and outstanding capitalization as set forth in the Registration
Statement and the Prospectuses as of the dates referred to therein (other than the grant of additional options under the Company’s
existing stock option plans, or changes in the number of outstanding Common Shares of the Company due to the issuance of shares
upon the exercise or conversion of securities exercisable for, or convertible into, Common Shares outstanding on the date hereof
or as a result of the issuance of Placement Shares) and such authorized share capital conforms to the description thereof set forth
in the Registration Statement and the Prospectuses. The description of the Common Shares in the Registration Statement and the
Prospectuses is complete and accurate in all material respects. Except as disclosed in or contemplated by the Registration Statement
or the Prospectuses, as of the date referred to therein, the Company did not have reserved or available for issuance any Common
Shares in respect of options (other than stock options under the Company’s existing stock option plans), or any rights or
warrants to subscribe for, or any securities or obligations convertible into, or exchangeable for, or any contracts or commitments
to issue or sell, any shares of the capital or other securities of or issued by the Company.
(k) Authorization;
Enforceability. The Company has full legal right, power and authority to enter into this Agreement and perform the transactions
contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding
agreement of the Company enforceable in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general equitable principles
and (ii) the indemnification and contribution provisions of Section 11 hereof may be limited by federal, provincial or state securities
laws and public policy considerations in respect thereof.
(l) Authorization
of Placement Shares. The Placement Shares, when issued and delivered pursuant to the terms approved by the board of directors
of the Company or a duly authorized committee thereof, or a duly authorized executive committee, against payment therefor as provided
herein, will be duly and validly authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance,
security interest or other claim, including any statutory or contractual preemptive rights, resale rights, rights of first refusal
or other similar rights, and will be registered pursuant to Section 12 of the Exchange Act. The Placement Shares, when issued,
will conform in all material respects to the description thereof set forth in or incorporated into the Prospectuses.
(m) No
Consents Required. No consent, approval, authorization, order, registration or qualification of or with any Governmental Authority
is required for the execution, delivery and performance by the Company of this Agreement, or the issuance and sale by the Company
of the Placement Shares, except for such consents, approvals, authorizations, orders, registrations or qualifications as may be
required under applicable provincial or state securities laws or by the by-laws and rules of the Financial Industry Regulatory
Authority (“FINRA”), the Exchanges, or the BCSC in connection with the sale of the Placement Shares by
the Agent.
(n) No
Preferential Rights. Except as set forth in the Registration Statement and the Prospectuses, (i) no person, as such term
is defined in Rule 1-02 of Regulation S-X promulgated under the Securities Act (each, a “Person”), has
the right, contractual or otherwise, to cause the Company to issue or sell to such Person any Common Shares or shares of any other
capital stock or other securities of the Company (, (ii) no Person has any preemptive rights, resale rights, rights of first
refusal, rights of co-sale, or any other rights (whether pursuant to a “poison pill” provision or otherwise) to purchase
any Common Shares or shares of any other capital stock or other securities of the Company, from the Company which have not been
duly waived with respect to the offering contemplated hereby, (iii) no Person has the right to act as an underwriter or as a financial
advisor to the Company in connection with the offer and sale of the Placement Shares (excluding, for greater certainty, the Agent),
and (iv) no Person has the right, contractual or otherwise, to require the Company to register under the Securities Act any
Common Shares or shares of any other capital stock or other securities of the Company, or to include any such shares or other securities
in the Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness of the Registration
Statement or the sale of the Placement Shares as contemplated thereby or otherwise.
(o) Independent
Public Accounting Firm. KPMG LLP (the “Accountant”), whose report on the consolidated financial statements
of the Company is filed with the Commission as part of the Company’s most recent Annual Report on Form 40-F filed with the
Commission and incorporated by reference into the Registration Statement and the U.S. Prospectus, are and, during the periods covered
by their report, were an independent registered public accounting firm within the meaning of the Securities Act and the Public
Company Accounting Oversight Board (United States). To the Company’s knowledge, the Accountant is not in violation of the
auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) with respect
to the Company.
(p) Enforceability
of Agreements. All material agreements between the Company and third parties expressly referenced in the Prospectuses are legal,
valid and binding obligations of the Company enforceable in accordance with their respective terms, except to the extent that (i) enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally
and by general equitable principles, (ii) the indemnification provisions of certain agreements may be limited by federal or
state securities laws or public policy considerations in respect thereof and (iii) the failure to be so legal, valid and binding
would reasonably be expected to have a Material Adverse Effect.
(q) No
Litigation. Except as set forth in the Registration Statement or the Prospectuses, there are no actions, suits or proceedings
by or before any Governmental Authority pending, nor, to the Company’s knowledge, any audits or investigations by or before
any Governmental Authority to which the Company or a Subsidiary is a party or to which any property of the Company or any of its
Subsidiaries is the subject that, individually or in the aggregate, if determined adversely to the Company or any of its Subsidiaries,
would reasonably be expected to have a Material Adverse Effect. Except as set forth in the Registration Statement or the Prospectuses,
to the Company’s knowledge, no such actions, suits, proceedings, audits or investigations are threatened or contemplated
by any Governmental Authority or threatened by others that, individually or in the aggregate, if determined adversely to the Company
or any of its Subsidiaries, would reasonably be expected to have a Material Adverse Effect; and (i) there are no current or
pending actions, suits or proceedings or, to the Company’s knowledge, audits or investigations by or before any Governmental
Authority that are required under the Securities Act to be described in the U.S. Prospectus that are not so described in the U.S.
Prospectus; and (ii) there are no contracts or other documents that are required under the Securities Act to be filed as exhibits
to the Registration Statement that are not so filed.
(r) Consents
and Permits. Except as disclosed in the Registration Statement and the Prospectuses, the Company and its Subsidiaries have
made all filings, applications and submissions required by, possess and are operating in compliance with, all approvals, licenses,
certificates, certifications, clearances, consents, grants, exemptions, marks, notifications, orders, permits and other authorizations
issued by, the appropriate federal, state or foreign Governmental Authority (including, without limitation, the United States Food
and Drug Administration (the “FDA”), the United States Drug Enforcement Administration or any other foreign,
federal, state, provincial, court or local government or regulatory authorities including self-regulatory organizations engaged
in the regulation of clinical trials, pharmaceuticals, biologics or biohazardous substances or materials) necessary for the ownership
or lease of their respective properties or the conduct of their respective businesses as described in the Registration Statement
and the Prospectuses (collectively, “Permits”), except for such Permits the failure of which to possess,
obtain or make the same would not individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; the
Company and its Subsidiaries are in compliance with the terms and conditions of all such Permits, except where the failure to be
in compliance would not individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; all of the
Permits are valid and in full force and effect, except where any invalidity, individually or in the aggregate, would not be reasonably
expected to have a Material Adverse Effect. Except as disclosed in the Registration Statement or the Prospectuses, neither the
Company nor any of its Subsidiaries has received any written notice relating to the limitation, revocation, cancellation, suspension,
modification or non-renewal of any such Permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or has any reason
to believe that such Permit will not be renewed in the ordinary course, except where such revocation, modification or failure to
obtain any such renewal would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(s) Regulatory.
The Company has operated and currently is, in all material respects in compliance with the United States Federal Food, Drug, and
Cosmetic Act, all applicable rules and regulations of the FDA and other federal, state, local and foreign Governmental Authority
exercising comparable authority. The Company has no knowledge of any studies, tests or trials not described in the Prospectuses
the results of which reasonably call into question in any material respect the results of the studies, tests and trials described
in the Prospectuses.
(t) Intellectual
Property. Except as set forth in the Registration Statement or the Prospectuses, to the Company’s knowledge, the Company
and its Subsidiaries own or have obtained adequate enforceable rights to use all patents, patent applications, trademarks (both
registered and unregistered), service marks, trade names, trademark registrations, service xxxx registrations, copyrights, licenses
and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems
or procedures) (collectively, the “Intellectual Property”), necessary for the conduct of their respective
businesses as conducted as of the date hereof, except to the extent that the failure to own or to have obtained adequate rights
to use such Intellectual Property would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect; neither the Company nor any of its Subsidiaries has received any written notice of any claim of infringement or conflict
(and the Company is unaware of any facts which could form a reasonable basis for such a claim), which asserted Intellectual Property
rights of others, which infringement or conflict, if the subject of an unfavorable decision, would result in a Material Adverse
Effect; there are no pending, or to the Company’s knowledge, threatened judicial proceedings or interference proceedings
against the Company or its Subsidiaries challenging the Company’s or its Subsidiaries’ rights in or to or the validity
or the scope of any of the Company’s or its Subsidiaries’ material patents, patent applications or proprietary information,
except for such proceedings which would not reasonably be expected to have a Material Adverse Effect; to the Company’s knowledge,
no other entity or individual has any right or claim in any of the Company’s or its Subsidiaries’ owned material patents,
patent applications or any patent to be issued therefrom by virtue of any contract, license or other agreement entered into between
such entity or individual and the Company or a Subsidiary or by any non-contractual obligation of the Company or a Subsidiary,
other than by written licenses granted by the Company or a Subsidiary, except for such rights or claims which would not reasonably
be expected to have a Material Adverse Effect; the Company and its Subsidiaries have not received any written notice of any claim
challenging the rights of the Company or a Subsidiary in or to any Intellectual Property owned, licensed or optioned by the Company
or such Subsidiary which claim, if the subject of an unfavorable decision, would result in a Material Adverse Effect. To the Company’s
knowledge, there is no infringement by third parties of any Company Intellectual Property
(u) Clinical
Studies. The clinical, pre-clinical and other studies and tests conducted by or, to the knowledge of the Company, on behalf
of the Company were, and, if still pending, are being, conducted in accordance in all material respects with all statutes, laws,
rules and regulations, as applicable (including, without limitation, the U.S. Food and Drug Administration’s (the “FDA”)
Good Laboratory Practices and Good Clinical Practices as well as all other applicable rules, regulations, or requirements of the
FDA or any foreign, federal, state or local governmental or regulatory authority performing functions similar to those performed
by the FDA). Except as set forth in the Registration Statement and Prospectuses, the Company has not received any written notices
or other written correspondence from the FDA or any other foreign, federal, state or local governmental or regulatory authority
performing functions similar to those performed by the FDA requiring the Company to terminate or suspend any ongoing clinical or
pre-clinical studies or tests.
(v) No
Material Defaults. Neither the Company nor any of the Subsidiaries has defaulted on any installment on indebtedness for borrowed
money or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since
the filing of its last Annual Report on Form 40-F, indicating that it (i) has failed to pay any dividend or sinking fund installment
on preferred stock or (ii) has defaulted on any installment on indebtedness for borrowed money or on any rental on one or
more long-term leases, which defaults, individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
(w) Certain
Market Activities. Neither the Company, nor any of the Subsidiaries, nor to the knowledge of the Company, any of their respective
directors, officers or controlling persons has taken, directly or indirectly, any action designed, or that has constituted or might
reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the Placement Shares.
(x) Broker/Dealer
Relationships. Neither the Company nor any of the Subsidiaries (i) is required to register as a “broker” or
“dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more
intermediaries, controls or is a “person associated with a member” or “associated person of a member” (within
the meaning set forth in the FINRA Manual).
(y) No
Reliance. The Company has not relied upon the Agent or legal counsel for the Agent for any legal, tax or accounting advice
in connection with the offering and sale of the Placement Shares.
(z) Taxes.
The Company and each of its Subsidiaries have filed all federal, state, local and foreign tax returns which have been required
to be filed and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not
being contested in good faith, except where the failure to so file or pay would not reasonably expected to have to have a Material
Adverse Effect. Except as otherwise disclosed in or contemplated by the Registration Statement or the Prospectuses, no tax deficiency
has been determined adversely to the Company or any of its Subsidiaries which has had a Material Adverse Effect. The Company has
no knowledge of any federal, state or other governmental tax deficiency, penalty or assessment which has been or might be asserted
or threatened against it which would have a Material Adverse Effect.
(aa) Title
to Real and Personal Property. Except as set forth in the Registration Statement or the Prospectuses, the Company and its Subsidiaries
have good and marketable title in fee simple to all items of real property owned by them, good and valid title to all personal
property (excluding Intellectual Property, which is addressed above) described in the Registration Statement or Prospectuses as
being owned by them that are material to the business of the Company or such Subsidiary, in each case free and clear of all liens,
encumbrances and claims, except those matters that (i) do not materially interfere with the use made and proposed to be made of
such property by the Company and any of its Subsidiaries or (ii) would not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect. Any real or personal property described in the Registration Statement or Prospectuses as being
leased by the Company and any of its Subsidiaries is held by them under valid, existing and enforceable leases, except those that
(A) do not materially interfere with the use made or proposed to be made of such property by the Company or any of its Subsidiaries
or (B) would not be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect. Each of the properties
of the Company and its Subsidiaries complies with all applicable codes, laws and regulations (including, without limitation, building
and zoning codes, laws and regulations and laws relating to access to such properties), except if and to the extent disclosed in
the Registration Statement or Prospectuses or except for such failures to comply that would not, individually or in the aggregate,
reasonably be expected to interfere in any material respect with the use made and proposed to be made of such property by the Company
and its Subsidiaries or otherwise have a Material Adverse Effect. None of the Company or its Subsidiaries has received from any
Governmental Authorities any notice of any condemnation of, or zoning change affecting, the properties of the Company and its Subsidiaries,
and the Company knows of no such condemnation or zoning change which is threatened, except for such that would not reasonably be
expected to interfere in any material respect with the use made and proposed to be made of such property by the Company and its
Subsidiaries or otherwise have a Material Adverse Effect, individually or in the aggregate
(bb) Environmental
Laws. Except as set forth in the Registration Statement or the Prospectuses, the Company and its Subsidiaries (i) are
in compliance with any and all applicable federal, state, local and foreign laws, rules, regulations, decisions and orders relating
to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, “Environmental Laws”); (ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses as described
in the Registration Statement and the Prospectuses; and (iii) have not received notice of any actual or potential liability
for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants,
except, in the case of any of clauses (i), (ii) or (iii) above, for any such failure to comply or failure to receive required permits,
licenses, other approvals or notice or liability as would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
(cc) Disclosure
Controls. The Company maintains disclosure controls and procedures and internal controls over financial reporting (each as
defined in Rule 13a-15 under the Exchange Act) that comply with the requirements of the Exchange Act. The Company is not aware
of any material weaknesses in its internal control over financial reporting (other than as set forth in the Registration Statement
or U.S. Prospectus). Since the date of the latest audited financial statements of the Company included in the Prospectuses, there
has been 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 (other than as set forth in the Registration
Statement or U.S. Prospectus). The Company has established disclosure controls and procedures (as defined in Exchange Act Rules
13a-15 and 15d-15) for the Company and designed such disclosure controls and procedures to ensure that material information relating
to the Company and each of its Subsidiaries is made known to the certifying officers by others within those entities, particularly
during the period in which the Company’s Annual Report on Form 40-F or Quarterly Report on Form 6-K, as the case may be,
is being prepared. The Company’s certifying officers have evaluated the effectiveness of the Company’s disclosure controls
and procedures as of a date within 90 days prior to the filing date of the Form 40-F for the fiscal year most recently ended (such
date, the “Evaluation Date”). The Company presented in its Form 20-F for the fiscal year most recently
ended the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. Since the Evaluation Date and other than as set forth in the Registration Statement or U.S.
Prospectus, there have been no significant changes in the Company’s internal controls (as such term is defined in Item 307(b)
of Regulation S K under the Securities Act).
(dd) Xxxxxxxx-Xxxxx.
Except as set forth in the Registration Statement or Prospectuses, there is and has been no failure on the part of the Company
or, to the knowledge of the Company, any of the Company’s directors or officers, in their capacities as such, to comply in
all material respects with any applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated
thereunder (the “Xxxxxxxx-Xxxxx Act”). Each of the principal executive officer and the principal financial
officer of the Company (or each former principal executive officer of the Company and each former principal financial officer of
the Company as applicable) has made all certifications required by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act. For purposes
of the preceding sentence, “principal executive officer” and “principal financial officer” shall have the
meanings given to such terms in the Xxxxxxxx-Xxxxx Act.
(ee) Finder’s
Fees. Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees, brokerage commissions
or similar payments in connection with the transactions herein contemplated, except as may otherwise exist with respect to Agent
pursuant to this Agreement.
(ff) Labor
Disputes. Except as disclosed in the Registration Statement or Prospectuses, no labor disturbance by or dispute with employees
of the Company or any of its Subsidiaries exists or, to the knowledge of the Company, is threatened, in either case which would
reasonably be expected to result in a Material Adverse Effect.
(gg) Investment
Company Act. Neither the Company nor any of the Subsidiaries is or, after giving effect to the offering and sale of the Placement
Shares, will be an “investment company” or an entity “controlled” by an “investment company,”
as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(hh) Operations.
The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance in all material respects
with applicable financial record keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, the money laundering statutes of all jurisdictions to which the Company or its Subsidiaries are subject, the rules
and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any
Governmental Authority having jurisdiction over the Company (collectively, the “Money Laundering Laws”);
and no action, suit or proceeding by or before any Governmental Authority 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.
(ii) Off-Balance
Sheet Arrangements. Except as disclosed in the Registration Statement or Prospectuses, there are no transactions, arrangements
or other relationships between and/or among the Company or any of its Subsidiaries and any unconsolidated entity, including, but
not limited to, any structural finance, special purpose or limited purpose entity (each, an “Off-Balance Sheet Transaction”)
that could reasonably be expected to affect materially the Company’s liquidity or the availability of or requirements for
its capital resources.
(jj) Underwriter
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 under Part 9 of NI 44-102 or pursuant to General Instruction II.L of Form F-10.
(kk) ERISA.
To the knowledge of the Company, (i) each material employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed to
by the Company or any of its Subsidiaries (other than a Multiemployer Plan, within the meaning of Section 3(37) of ERISA) for employees
or former employees of the Company and any of its Subsidiaries has been maintained in material compliance with its terms and the
requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Internal Revenue
Code of 1986, as amended (the “Code”); (ii) no prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975 of the Code, has occurred which would result in a material liability to the Company with respect to
any such plan excluding transactions effected pursuant to a statutory or administrative exemption; and (iii) for each such plan
that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency”
as defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market value of the assets of each
such plan (excluding for these purposes accrued but unpaid contributions) exceeds the present value of all benefits accrued under
such plan determined using reasonable actuarial assumptions, other than, in the case of (i), (ii) and (iii) above, as would not
reasonably be expected to have a Material Adverse Effect.
(ll) Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) (a “Forward-Looking Statement”) contained in the Registration Statement or the U.S. Prospectus has,
as at the date of such statement, been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(mm) Agent Purchases. The Company acknowledges and agrees that the Agent has informed the Company that the
Agent may, to the extent permitted under the Securities Act and the Exchange Act, purchase and sell Common Shares for its own
account while this Agreement is in effect, provided, that (i) no such purchase or sales shall take place while a Placement
Notice is in effect (except to the extent the Agent may engage in sales of Placement Shares purchased or deemed purchased
from the Company as a “riskless principal” or in a similar capacity) and (ii) the Company shall not be deemed to
have authorized or consented to any such purchases or sales by the Agent.
(nn) Margin
Rules. Neither the issuance, sale and delivery of the Placement Shares nor the application of the proceeds thereof by the Company
as described in the Registration Statement and the U.S. Prospectus will violate Regulation T, U or X of the Board of Governors
of the Federal Reserve System or any other regulation of such Board of Governors.
(oo) Insurance.
The Company and each of its Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company
and each of its Subsidiaries reasonably believe are adequate for the conduct of their properties and as is customary for companies
of similar size engaged in similar businesses in similar industries.
(pp) No
Improper Practices. (i) Neither the Company nor the Subsidiaries, nor to the Company’s knowledge any director, officer,
or employee of the Company or any Subsidiary nor, to the Company’s knowledge, any agent, affiliate or other person acting
on behalf of the Company or any Subsidiary has, in the past five years, made any unlawful contributions to any candidate for any
political office (or failed fully to disclose any contribution in violation of applicable law) or made any contribution or other
payment to any official of, or candidate for, any federal, state, municipal, or foreign office or other person charged with similar
public or quasi-public duty in violation of any applicable law or of the character required to be disclosed in the Prospectuses;
(ii) no relationship, direct or indirect, exists between or among the Company or any Subsidiary or to the Company’s knowledge
any affiliate of any of them, on the one hand, and the directors, officers and shareholders of the Company or any Subsidiary, on
the other hand, that is required by the Securities Act or Canadian Securities Laws to be described in the Registration Statement
and the Prospectuses that is not so described; (iii) no relationship, direct or indirect, exists between or among the Company or
any Subsidiary or to the Company’s knowledge any affiliate of them, on the one hand, and the directors, officers, or shareholders
of the Company or any Subsidiary, on the other hand, that is required by the rules of FINRA to be described in the Registration
Statement and the Prospectuses that is not so described; (iv) except as described in the Registration Statement and the Prospectuses,
there are no material outstanding loans or advances or material guarantees of indebtedness by the Company or any Subsidiary to
or for the benefit of any of their respective officers or directors or any of the members of the families of any of them; and (v)
the Company has not offered, or caused any placement agent to offer, Common Shares to any person with the intent to influence unlawfully
(A) a customer or supplier of the Company or any Subsidiary to alter the customer’s or supplier’s level or type of
business with the Company or any Subsidiary or (B) a trade journalist or publication to write or publish favorable information
about the Company or any Subsidiary or any of their respective products or services, and, (vi) neither the Company nor any Subsidiary
nor to the knowledge of the Company, any director, officer or employee of the Company or any Subsidiary nor, to the Company’s
knowledge, any agent, affiliate or other person acting on behalf of the Company or any Subsidiary has (A) violated or is in violation
of any applicable provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery
or anti-corruption law (collectively, “Anti-Corruption Laws”), (B) promised, offered, provided, attempted to provide
or authorized the provision of anything of value, directly or indirectly, to any person for the purpose of obtaining or retaining
business, influencing any act or decision of the recipient, or securing any improper advantage; or (C) made any payment of funds
of the Company or any Subsidiary or received or retained any funds in violation of any Anti-Corruption Laws .
(qq) Status
Under the Securities Act. The Company was not and will not be at any Settlement Date an ineligible issuer as defined in Rule
405 under the Securities Act.
(rr) No
Conflicting Statements in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and
as of each Applicable Time (as defined in Section 23 below), did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectuses, including
any Incorporated Document that have not been superseded or modified. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company
by the Agent specifically for use therein.
(ss) No
Conflicts. Neither the execution of this Agreement, nor the issuance, offering or sale of the Placement Shares, nor the consummation
of any of the transactions contemplated herein, nor the compliance by the Company with the terms and provisions hereof will conflict
with, or will result in a breach of, any of the terms and provisions of, or has constituted or will constitute a default under,
or has resulted in or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets
of the Company pursuant to the terms of any contract or other agreement to which the Company may be bound or to which any of the
property or assets of the Company is subject, except (i) such conflicts, breaches or defaults as may have been waived and (ii)
such conflicts, breaches and defaults that would not reasonably be expected to have a Material Adverse Effect; nor will such action
result (x) in any violation of the provisions of the organizational or governing documents of the Company, or (y) in any material
violation of the provisions of any statute or any order, rule or regulation applicable to the Company or of any Governmental Authority
having jurisdiction over the Company except, in the case of clause (y), where such noncompliance would not reasonably be expected
to have a Material Adverse Effect.
(tt) Sanctions.
(i) The Company represents that neither the Company nor any of its Subsidiaries (collectively, the “Entity”),
nor to the knowledge of the Company, any director, officer, employee, agent, or representative of the Entity, is an individual
or entity (in this paragraph (pp), “Person”) that is, or is owned or controlled by a Person that is:
(A) the
subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”),
the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authorities,
including, without limitation, designation on OFAC’s Specially Designated Nationals and Blocked Persons List or OFAC’s
Foreign Sanctions Evaders List (as amended, collectively, “Sanctions”), nor
(B) located,
organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with that country
or territory (including, without limitation, Cuba, Iran, North Korea, Sudan, Syria and the Crimea Region of the Ukraine) (the “Sanctioned
Countries”)).
(ii) The
Entity represents and covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to
fund or facilitate, without an appropriate license, any activities or business of or with any Person or in any country or territory
that, at the time of such funding or facilitation, is the subject of Sanctions or is a Sanctioned Country; or
(B) in
any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering,
whether as underwriter, advisor, investor or otherwise).
(iii) Except
as described in the Registration Statement and the Prospectuses, for the past five years, the Entity has not, without an appropriate
license, knowingly engaged in, is not now knowingly engaged in, any dealings or transactions with any Person, or in any country
or territory, that at the time of the dealing or transaction is or was the subject of Sanctions or is or was a Sanctioned Country.
(uu) Share
Transfer Taxes. On each Settlement Date, all share transfer or other taxes (other than income taxes) which are required to
be paid in connection with the sale and transfer of the Placement Shares to be sold hereunder will be, or will have been, fully
paid or provided for by the Company and all laws imposing such taxes will be or will have been fully complied with in all material
respects.
(vv) Compliance.
Except as disclosed in the Registration Statement and the Prospectuses, the Company has established and administers policies and
procedures relating to compliance applicable to the Company, to assist the Company and the directors, officers and employees of
the Company in complying with applicable regulatory guidelines (including, without limitation, those administered by the FDA and
any other foreign, federal, state or local governmental or regulatory authority performing functions similar to those performed
by the FDA) except where such noncompliance would not reasonably be expected to have a Material Adverse Effect. Each of the Company
and its Subsidiaries has not received any FDA Form 483, notice of adverse finding, warning letter, untitled letter or other correspondence
or notice from the FDA or any other Governmental Authority alleging or asserting noncompliance in any material respects with any
Applicable Laws or any licenses, certificates, approvals, clearances, authorizations, permits and supplements or amendments thereto
required by any such Applicable Laws.
(ww) Statistical
and Market-Related Data. The statistical, demographic and market-related data included in the Registration Statement and Prospectuses
are based on or derived from sources that the Company believes to be reliable and accurate or represent the Company’s good
faith estimates that are made on the basis of data derived from such sources.
(xx) Cyber
Security. Except as may be included or incorporated by reference in the Registration Statement and the Prospectuses, (x) to
the Company’s knowledge, there has been no material security breach or other material compromise of or relating to any of
the Company’s information technology and computer systems, networks, hardware, software, data (including the data of their
respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment or
technology (collectively, “IT Systems and Data”) and (y) the Company has not been notified of, and has
no knowledge of any event or condition that would reasonably be expected to result in, any material security breach or other material
compromise to their IT Systems and Data; (ii) the Company is presently in 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 Data and to the protection of such IT Systems
and Data from unauthorized use, access, misappropriation or modification, except as would not, in the case of this clause (ii),
individually or in the aggregate, result in a Material Adverse Effect; and (iii) the Company has implemented backup and disaster
recovery technology consistent with industry standards and practices.
(yy) Foreign
Private Issuer. The Company is a “foreign private issuer” as such term is defined in Rule 3b-4 under the Exchange
Act and in Rule 405 under the Securities Act.
(zz) Filed
All Documents. The Company has filed all documents or information required to be filed by it under Canadian Securities Laws,
the Securities Act, the Exchange Act, the Rules and Regulations and the rules, regulations and policies of the Exchanges; except
as otherwise disclosed on Schedule 5, the Company has not filed any confidential material change report or any document
requesting confidential treatment with any securities regulatory authority or regulator or any exchange that at the date hereof
remains confidential.
Any certificate signed
by an authorized officer of the Company and delivered to the Agent or to counsel for the Agent pursuant to or in connection with
this Agreement shall be deemed to be a representation and warranty by the Company, as applicable, to the Agent as to the matters
set forth therein.
7. Covenants
of the Company. The Company covenants and agrees with Agent that:
(a) Registration
Statement Amendments. After the date of this Agreement and during any period in which a U.S. Prospectus relating to any Placement
Shares is required to be delivered by Agent under the Securities Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172 under the Securities Act or similar rule) the “Prospectus Delivery Period”,
(i) the Company will notify the Agent promptly of the time when any subsequent amendment to the Registration Statement, other
than documents incorporated by reference, has been filed with the Commission and/or has become effective or any subsequent supplement
to the Prospectus has been filed and of any request by the Commission for any amendment or supplement to the Registration Statement
or Prospectus or for additional information related to the Placement, (ii) the Company will prepare and file with the Commission,
promptly upon the Agent’s request, any amendments or supplements to the Registration Statement or U.S. Prospectus that, in
the Agent’s reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement Shares
by the Agent (provided, however, that the failure of the Agent to make such request shall not relieve the Company of any obligation
or liability hereunder, or affect the Agent’s right to rely on the representations and warranties made by the Company in
this Agreement and provided, further, that the only remedy the Agent shall have with respect to the failure to make such filing
shall be to cease making sales under this Agreement until such amendment or supplement is filed); (iii) the Company will not
file any amendment or supplement to the Registration Statement or U.S. Prospectus relating to the Placement Shares or a security
convertible into the Placement Shares unless a copy thereof has been submitted to Agent within a reasonable period of time before
the filing and the Agent has not reasonably objected thereto (provided, however, (A) that the failure of the Agent
to make such objection shall not relieve the Company of any obligation or liability hereunder, or affect the Agent’s right
to rely on the representations and warranties made by the Company in this Agreement (B) that the Company has no obligation to provide
the Agent any advance copy of such filing or to provide the Agent an opportunity to object to such filing if such filing does not
name the Agent or does not relate to the transactions contemplated hereunder, and (C) that the only remedy the Agent shall have
with respect to the failure by the Company to provide the Agent with such consent shall be to cease making sales under this Agreement)
and the Company will furnish to the Agent at the time of filing thereof a copy of any document that upon filing is deemed to be
incorporated by reference into the Registration Statement or U.S. Prospectus, except for those documents available via XXXXX; and
(iii) the Company will cause each amendment or supplement to the Prospectus to be filed with or furnished to the Commission
as required pursuant to General Instruction II.L of Form F-10 or, in the case of any document to be incorporated therein by reference,
to be filed with the Commission as required pursuant to the Exchange Act, within the time period prescribed (the determination
to file or not to file any amendment or supplement with the Commission under this Section 7(a), based on the Company’s
reasonable opinion or reasonable objections, shall be made exclusively by the Company).
(b) Notice
of Commission Stop Orders. The Company will advise the Agent, promptly after it receives notice or obtains knowledge thereof,
of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement,
of the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such a stop order should be issued. The Company will advise the Agent
promptly after it receives any request by the Commission for any amendments to the Registration Statement or any amendment or supplements
to the U.S. Prospectus or any Issuer Free Writing Prospectus or for additional information related to the offering of the Placement
Shares or for additional information related to the Registration Statement, the U.S. Prospectus or any Issuer Free Writing Prospectus.
(c) Delivery
of Prospectus; Subsequent Changes. During the Prospectus Delivery Period, the Company will comply with all requirements imposed
upon it by the Securities Act and Canadian Securities Laws in all material respects, as from time to time in force, and to file
on or before their respective due dates all reports and any definitive proxy or information statements required to be filed by
the Company with or furnished to the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under
the Exchange Act. If during the Prospectus Delivery Period the Company has omitted any information from the Registration Statement
pursuant to Rule 430B under the Securities Act, it will use its best efforts to comply with the provisions of and make all requisite
filings with the Commission pursuant to said Rule 430B and to notify the Agent promptly of all such filings. If during the Prospectus
Delivery Period any event occurs as a result of which the U.S. Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances
then existing, not misleading, or if during the Prospectus Delivery Period it is necessary to amend or supplement the Registration
Statement or U.S. Prospectus to comply with the Securities Act, the Company will promptly notify the Agent to suspend the offering
of Placement Shares during such period and the Company will promptly amend or supplement the Registration Statement or U.S. Prospectus
(at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(d) Listing
of Placement Shares. Prior to the date of the first Placement Notice, the Company will use its commercially reasonable
efforts to cause four million Placement Shares to be conditionally accepted for listing on the Exchanges. Prior to any subsequent
Placement Notice following the exhaustion of such initial four million shares, the Company will use its commercially reasonable
efforts to cause to any additional Placement Shares applicable to such Placement Notice to be conditionally accepted for listing
on the Exchanges.
(e) Delivery
of Registration Statement and Prospectus. The Company will furnish to the Agent and its counsel (at the expense of the Company)
copies of the Registration Statement, the U.S. Prospectus (including all documents incorporated by reference therein) and all amendments
and supplements to the Registration Statement or U.S. Prospectus that are filed with the Commission during the Prospectus Delivery
Period (including all documents filed with the Commission during such period that are deemed to be incorporated by reference therein),
in each case as soon as reasonably practicable and in such quantities as the Agent may from time to time reasonably request and,
at the Agent’s request, will also furnish copies of the U.S. Prospectus to each exchange or market on which sales of the
Placement Shares may be made; provided, however, that the Company shall not be required to furnish any document (other
than the U.S. Prospectus) to the Agent to the extent such document is available on XXXXX.
(f) Earning
Statement. The Company will make generally available to its security holders as soon as practicable, but in any event not later
than 15 months after the end of the Company’s current fiscal quarter, an earning statement covering a 12-month period that
satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act.
(g) Use
of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(h) Notice
of Other Sales. During the pendency of any Placement Notice given hereunder, the Company shall provide the Agent with no fewer
than three Trading Days’ prior written notice before it will, directly or indirectly, offer to sell, sell, contract to sell,
grant any option to sell or otherwise dispose of any Common Shares (other than the Placement 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
during the period beginning on the fifth (5th) Trading Day immediately prior to the date on which any Placement Notice
is delivered to the Agent hereunder and ending on the fifth (5th) Trading Day immediately following the final Settlement
Date with respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated or
suspended prior to the sale of all Placement Shares covered by a Placement Notice, the date of such suspension or termination);
and will not, while this Agreement is in force and effect and shall not have expired, terminated, or been terminated, directly
or indirectly in 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 Placement 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 sixtieth (60th) day immediately following the termination of this Agreement; provided, however,
that such restrictions will not be required in connection with the Company’s issuance, grant or sale of (i) Common Shares,
options to purchase Common Shares or Common Shares issuable upon the exercise of options, pursuant to any employee or director
stock option or benefits plan, stock ownership plan or dividend reinvestment plan (but not Common Shares subject to a waiver to
exceed plan limits in its dividend reinvestment plan) of the Company whether now in effect or hereafter implemented, (ii) Common
Shares issuable upon conversion of securities or the exercise of warrants, options or other rights in effect or disclosed as outstanding
in the Registration Statement or the U.S. Prospectus; (iii) the issuance of securities in connection with an acquisition, merger
or sale or purchase of assets; and (iv) Common Shares, or securities convertible into or exercisable for Common Shares, issued
pursuant to consulting arrangements or service provider arrangements the primary purpose of which is not to raise capital, unless,
in each case, such arrangements are required to be disclosed on a current report on Form 6-K, and disclosed in filings by the Company
available on XXXXX or otherwise in writing to the Agent.
(i) Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice, advise the Agent promptly after
it shall have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material
respect any opinion, certificate, letter or other document required to be provided to the Agent pursuant to this Agreement.
(j) Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Agent or its representatives
in connection with the transactions contemplated hereby, including, without limitation, providing information and making available
documents and senior corporate officers, during regular business hours and at the Company’s principal offices, as the Agent
may reasonably request.
(k) Required
Filings Relating to Placement of Placement Shares. The Company agrees to disclose in its quarterly reports, annual information
form or annual report on Form 40-F or Form 20-F, as applicable, the amount of Placement Shares sold through the Agent, the Net
Proceeds to the Company and the compensation payable by the Company to the Agent with respect to such Placement Shares.
(l) Representation
Dates; Certificate. On or prior to the delivery of the first Placement Notice and each time the Company subsequently:
(i) files
a U.S. Prospectus relating to the Placement Shares, amends the Registration Statement by means of a post-effective amendment or
amends or supplements the U.S. Prospectus relating to the Placement Shares (other than a prospectus supplement relating solely
to an offering of securities other than the Placement Shares) by means of a sticker or supplement, but not by means of incorporation
of documents by reference into the Registration Statement or the U.S. Prospectus relating to the Placement Shares;
(ii) files
an annual report on Form 20-F or Form 40-F under the Exchange Act (including any Form 20-F/A or Form 40-F/A that contains restated
financial statements); or
(iii) furnishes
its unaudited interim financial statements and management’s discussion and analysis on Form 6-K under the Exchange Act (each
date of filing of one or more of the documents referred to in clauses (i) through (iii) shall be a “Representation
Date”);
the Company shall furnish the Agent with a
certificate dated the Representation Date, in the form and substance satisfactory to the Agent and its counsel, substantially similar
to the form attached hereto as Exhibit 7(l), modified, as necessary, to relate to the Registration Statement and the Prospectus
as amended or supplemented. The requirement to provide a certificate under this Section 7(l) shall be waived for any Representation
Date occurring at a time 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 Placement Shares hereunder (which for such calendar quarter shall be considered a Representation
Date) and the next occurring Representation Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Placement
Shares following a Representation Date when a Suspension was in effect and did not provide the Agent with a certificate under this
Section 7(l), then before the Company delivers the instructions for the sale of Placement Shares or the Agent sells any
Placement Shares pursuant to such instructions, the Company shall provide the Agent with a certificate in conformity with this
Section 7(l) dated the date of the Placement Notice.
(m) Legal
Opinions. (1) On or prior to the delivery of the first Placement Notice and (2) within five (5) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l) for which no waiver
is applicable, the Company shall cause to be furnished to the Agent written opinions of each of Blake, Xxxxxxx & Xxxxxxx LLP,
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP and, with respect to intellectual property and regulatory matters, the Company’s
internal counsel (collectively, “Company Counsel”), or other counsel reasonably satisfactory to the Agent,
in form and substance satisfactory to 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, the U.S. Prospectus and Canadian Prospectus,
as applicable, as then amended or supplemented; provided, however, the Company shall be required to furnish to the
Agent no more than one opinion hereunder per calendar quarter from each Company Counsel; provided, further, that
in lieu of such opinions for Representation Dates after the date hereof, Company Counsel may furnish the Agent with a letter (a
“Reliance Letter”) to the effect that the Agent may rely on a prior opinion delivered under this Section
7(m) to the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be
deemed to relate to the Registration Statement, and the U.S. Prospectus and Canadian Prospectus, as applicable, as amended or supplemented
as of the date of the Reliance Letter).
(n) Comfort
Letter. (1) On or prior to the delivery of the first Placement Notice and (2) within five (5) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l) for which no waiver
is applicable, the Company shall cause its independent registered public accounting firm to furnish the Agent letters (the “Comfort
Letters”), dated the date the Comfort Letter is delivered, which shall meet the requirements set forth in this Section
7(n) provided, that if requested by the Agent, the Company shall cause a Comfort Letter to be furnished to the Agent within
ten (10) Trading Days of the date of occurrence of any material transaction or event requiring the filing of a report on Form 6-K
containing material financial statements, including the restatement of the Company’s financial statements. The Comfort Letter
from the Company’s independent registered public accounting firm shall be in a form and substance reasonably satisfactory
to the Agent, (i) confirming that they are an independent registered public accounting firm within the meaning of the Securities
Act and the PCAOB, (ii) stating, as of such date, the conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered
public offerings (the first such letter, the “Initial Comfort Letter”) and (iii) updating the Initial
Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date
and modified as necessary to relate to the Registration Statement and the U.S. Prospectus, as amended and supplemented to the date
of such letter.
(o) Market
Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that
constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Placement Shares or (ii) sell, bid for, or purchase Common Shares in violation
of Regulation M under the Exchange Act, as applicable, or pay anyone any compensation for soliciting purchases of the Placement
Shares other than the Agent.
(p) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor any of its
Subsidiaries will be or become, at any time prior to the termination of this Agreement, required to register as an “investment
company,” as such term is defined in the Investment Company Act.
(q) No
Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and the Agent in its capacity
as agent hereunder, neither the Agent nor the Company (including its agents and representatives, other than the Agent in its capacity
as such) will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule 405 under the Securities
Act), required to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Placement
Shares hereunder.
(r) Blue
Sky and Other Qualifications. The Company will use its commercially reasonable efforts, in cooperation with the Agent, to qualify
the Placement Shares for offering and sale or to obtain an exemption for the Placement Shares to be offered and sold, under the
applicable securities laws of such states as the Agent may designate and to maintain such qualifications and exemptions in effect
for so long as required for the distribution of the Placement Shares (but in no event for less than one year from the date of this
Agreement); provided, however, that the Company shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction
in which the Placement Shares have been so qualified or exempt, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required
for the distribution of the Placement Shares (but in no event for less than one year from the date of this Agreement).
(s) Xxxxxxxx-Xxxxx
Act. The Company and the Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain
internal accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and
including those policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and
fairly reflect the transactions and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions
are recorded as necessary to permit the preparation of the Company’s consolidated financial statements in accordance with
generally accepted accounting principles, (iii) that receipts and expenditures of the Company are being made only in accordance
with management’s and the Company’s directors’ authorization, and (iv) provide reasonable assurance regarding
prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a
material effect on its financial statements. The Company and the Subsidiaries will maintain such controls and other procedures,
including, without limitation, those required by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act, and the applicable regulations
thereunder that are designed to ensure that information required to be disclosed by the Company in the reports that it files or
submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s
rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed
by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s
management, including its principal executive officer and principal financial officer, or persons performing similar functions,
as appropriate to allow timely decisions regarding required disclosure and to ensure that material information relating to the
Company or the Subsidiaries is made known to them by others within those entities, particularly during the period in which such
periodic reports are being prepare
(t) Secretary’s
Certificate; Further Documentation. On or prior to the date of the first Placement Notice, the Company shall deliver to the
Agent a certificate of the Secretary of the Company and attested to by an executive officer of the Company, dated as of such date,
certifying as to (i) the Articles of Incorporation of the Company, (ii) the Bylaws of the Company, (iii) the resolutions of the
board of directors of the Company authorizing the execution, delivery and performance of this Agreement and the issuance of the
Placement Shares and (iv) the incumbency of the officer(s) duly authorized to execute this Agreement and the other documents contemplated
by this Agreement. Within five (5) Trading Days of each Representation Date, the Company shall have furnished to the Agent such
further information, certificates and documents as the Agent may reasonably request.
8. Representations
and Covenants of the Agent. The Agent will not offer or sell Placement Shares through the facilities of the Toronto Stock Exchange
(or any other exchange or market in Canada) or knowingly offer or sell Placement Shares to a resident of Canada.
9. Payment
of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including
(i) the preparation and filing of the Registration Statement, including any fees required by the Commission, and the printing
or electronic delivery of the U.S. Prospectus as originally filed and of each amendment and supplement thereto, in such number
as the Agent shall reasonably deem necessary, (ii) the printing and delivery to the Agent of this Agreement and such other documents
as may be required in connection with the offering, purchase, sale, issuance or delivery of the Placement Shares, (iii) the preparation,
issuance and delivery of the certificates, if any, for the Placement Shares to the Agent, including any stock or other transfer
taxes and any capital duties, stamp duties or other duties or taxes (other than income taxes) payable upon the sale, issuance or
delivery of the Placement Shares to the Agent, (iv) the fees and disbursements of the counsel, accountants and other advisors
to the Company, (v) the actual and documented fees and expenses of the Agent in an amount not to exceed $50,000, including
but not limited to the fees and expenses of the counsel to the Agent, payable upon the execution of this Agreement, (vi) the qualification
or exemption of the Placement Shares under state securities laws in accordance with the provisions of Section 7(r) hereof, including
filing fees, but excluding fees of the Agent’s counsel, (vii) the printing and delivery to the Agent of copies of any
Permitted Issuer Free Writing Prospectus and any amendments or supplements thereto in such number as the Agent shall reasonably
deem necessary, (viii) the preparation, printing and delivery to the Agent of copies of the blue sky survey, (ix) the fees
and expenses of the transfer agent and registrar for the Common Shares, (vii) the filing and other fees incident to any review
by FINRA of the terms of the sale of the Placement Shares including the fees of the Agent’s counsel (subject to the cap,
set forth in clause (iv) above), and (viii) the fees and expenses incurred in connection with the listing of the Placement
Shares on the Exchanges.
10. Conditions
to Agent’s Obligations. The obligations of the Agent hereunder with respect to a Placement will be subject to the continuing
accuracy and completeness of the representations and warranties made by the Company herein, to the due performance by the Company
of its obligations hereunder, to the completion by the Agent of a due diligence review satisfactory to it in its reasonable judgment,
and to the continuing satisfaction (or waiver by the Agent in its sole discretion) of the following additional conditions:
(a) Registration
Statement Effective. The Registration Statement shall have become effective and shall be available for the sale of all Placement
Shares contemplated to be offered or sold by the Agent hereunder.
(b) No
Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company of any
request for additional information from the Commission or any other federal or state Governmental Authority during the period of
effectiveness of the Registration Statement, the response to which would require any post-effective amendments or supplements to
the Registration Statement or the Prospectuses; (ii) the issuance by the Commission or any other federal or state Governmental
Authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for
that purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption
from qualification of any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; or (iv) the occurrence of any event that makes any material statement made in the Registration Statement
or the Prospectuses or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect
or that requires the making of any changes in the Registration Statement, the Prospectuses or material documents incorporated therein
so that, in the case of the Registration Statement, it will not contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case
of the Prospectuses, they will not contain an untrue statement of a material fact or omit to state any material 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.
(c) No
Misstatement or Material Omission. The Agent shall not have advised the Company that the Registration Statement or U.S. Prospectus,
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.
(d) Material
Changes. Except as contemplated in the U.S. Prospectus, or disclosed in the Company’s reports filed with or furnished
to the Commission, there shall not have been any material adverse change, on a consolidated basis, in the authorized capital share
of the Company or any Material Adverse Effect or any development that could reasonably be expected to cause a Material Adverse
Effect, or a downgrading in or withdrawal of the rating assigned to any of the Company’s securities (other than asset backed
securities) by any rating organization or a public announcement by any rating organization that it has under surveillance or review
its rating of the Company’s securities (other than asset backed securities), the effect of which, in the case of any such
action by a rating agency described above, in reasonable judgment of the Agent (without relieving the Company of any obligation
or liability it may otherwise have), is so material as to make it impracticable or inadvisable to proceed with the offering of
the Placement Shares on the terms and in the manner contemplated in the Prospectus.
(e) Legal
Opinions. The Agent shall have received the opinions of Company Counsel required to be delivered pursuant to Section 7(m)
on or before the date on which such delivery of such opinions is required pursuant to Section 7(m).
(f) Comfort
Letter. The Agent shall have received the Comfort Letter required to be delivered pursuant to Section 7(n) on or before
the date on which such delivery of such Comfort Letter is required pursuant to Section 7(n).
(g) Representation
Certificate. The Agent shall have received the certificate required to be delivered pursuant to Section 7(l) on or before
the date on which delivery of such certificate is required pursuant to Section 7(l).
(h) No
Suspension. Trading in the Common Shares shall not have been suspended on the Exchanges and the Common Shares shall not have
been delisted from the Exchanges.
(i) Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(l), the Company
shall have furnished to the Agent such appropriate further information, opinions, certificates, letters and other documents as
the Agent may reasonably request. All such opinions, certificates, letters and other documents will be in compliance with the
provisions hereof.
(j) Securities
Act Filings Made. All filings with the Commission required by Form F-10 under the Securities Act to have been filed prior to
the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing
by Form F-10.
(k) Approval
for Listing. The Placement Shares shall either have been (i) approved for listing on the Exchanges, subject only to notice
of issuance, or (ii) the Company shall have filed an application for listing of the Placement Shares on the Exchanges at, or prior
to, the issuance of any Placement Notice and the Exchanges shall have reviewed such application and not provided any objections
thereto.
(l) FINRA.
If applicable, FINRA shall have raised no objection to the terms of this offering and the amount of compensation allowable or payable
to the Agent as described in the Prospectuses.
(m) No
Termination Event. There shall not have occurred any event that would permit the Agent to terminate this Agreement pursuant
to Section 12(a).
11. Indemnification
and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless the Agent, its affiliates and their respective partners,
members, directors, officers, employees and agents and each person, if any, who controls the Agent or any affiliate within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or Canadian Prospectus
(or any amendment thereto), 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 arising out of any untrue statement or alleged untrue statement of a material
fact included in any related Issuer Free Writing Prospectus or the Prospectuses (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;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or proceeding by any Governmental Authority, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission;
provided that (subject to Section 11(d) below) any such settlement is effected with the written consent of the Company, which consent
shall not unreasonably be delayed or withheld; and
(iii) against
any and all expense whatsoever, as incurred (including the fees and disbursements of counsel), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any Governmental Authority, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made solely in reliance upon and in conformity with the Agent Information (as
defined below).
(b) Agent
Indemnification. Agent agrees to indemnify and hold harmless the Company and its directors and each officer of the Company
who signed the Registration Statement or the Canadian Prospectus, and each person, if any, who (i) controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under common control
with the Company against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section
11(a), as incurred, but only insofar as such loss, liability, claim, damage and expense arise out of or are based, directly
or indirectly, upon with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendments thereto), the Prospectuses (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity with information relating to the Agent and furnished
to the Company in writing by the Agent expressly for use therein. The Company hereby acknowledges that the only information that
the Agent has furnished to the Company expressly for use in the Registration Statement, the Prospectuses or any Issuer Free Writing
Prospectus (or any amendment or supplement thereto) are the statements set forth in the eighth and ninth paragraphs under the caption
“Plan of Distribution” in the Prospectus (the “Agent Information”).
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 11 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties
under this Section 11, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers
served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability
that it might have to any indemnified party otherwise than under this Section 11 and (ii) any liability that it may
have to any indemnified party under the foregoing provision of this Section 11 unless, and only to the extent that, such
omission results in the forfeiture or material impairment of substantive rights or defenses by the indemnifying party. If any such
action is brought against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying party
will be entitled to participate in and, to the extent that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with counsel reasonably satisfactory to the indemnified party, and after
notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying party will
not be liable to the indemnified party for any other legal expenses except as provided below and except for the reasonable costs
of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party will have
the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the
expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in writing
by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of counsel) that there may
be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the
indemnifying party, (3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between
the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party has not in fact employed counsel to assume
the defense of such action or counsel reasonably satisfactory to the indemnified party, in each case, within a reasonable time
after receiving notice of the commencement of the action; in each of which cases the reasonable fees, disbursements and other charges
of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or parties
shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm (plus local counsel) admitted to practice in such jurisdiction at
any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the
indemnifying party promptly after the indemnifying party receives a written invoice relating to fees, disbursements and other charges
in reasonable detail. An indemnifying party will not, in any event, be liable for any settlement of any action or claim effected
without its written consent. No indemnifying party shall, without the prior written consent of each indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters
contemplated by this Section 11 (whether or not any indemnified party is a party thereto), unless such settlement, compromise
or consent (1) includes an express and unconditional release of each indemnified party, in form and substance reasonably satisfactory
to such indemnified party, from all liability arising out of such litigation, investigation, proceeding or claim and (2) does
not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 11 is applicable in accordance with its terms but for any reason is held to be unavailable or
insufficient from the Company or the Agent, the Company and the Agent will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim asserted), but after deducting any contribution received by
the Company from persons other than the Agent, such as persons who control the Company within the meaning of the Securities Act,
officers of the Company who signed the Registration Statement or the Canadian Prospectus and directors of the Company, who also
may be liable for contribution) to which the Company and the Agent may be subject in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the Agent on the other hand. The relative benefits received
by the Company on the one hand and the Agent on the other hand shall be deemed to be in the same proportion as the total net proceeds
from the sale of the Placement Shares (before deducting expenses) received by the Company bear to the total compensation received
by the Agent from the sale of Placement Shares on behalf of the Company (before deducting expenses). If, but only if, the allocation
provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportion
as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault of
the Company, on the one hand, and the Agent, on the other hand, with respect to the statements or omission that resulted in such
loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitable considerations
with respect to such offering. Such relative fault shall be determined by reference to, among other things, whether the 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 or the Agent, the intent of the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the Agent agree that it would not be just and equitable if contributions
pursuant to this Section 11(d) were to be determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred to above in this Section 11(d)
shall be deemed to include, for the purpose of this Section 11(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim to the extent consistent with Section
11(c) hereof. Notwithstanding the foregoing provisions of this Section 11(e), the Agent shall not be required to contribute
any amount in excess of the commissions received by it under this Agreement and no person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 11(d), any person who controls a party to this
Agreement within the meaning of the Securities Act, any affiliates of the Agent and any officers, directors, partners, employees
or agents of the Agent or any of its affiliates, will have the same rights to contribution as that party, and each director of
the Company and each officer of the Company who signed the Registration Statement or the Canadian Prospectus will have the same
rights to contribution as the Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly
after receipt of notice of commencement of any action against such party in respect of which a claim for contribution may be made
under this Section 11(d), will notify any such party or parties from whom contribution may be sought, but the omission to
so notify will not relieve that party or parties from whom contribution may be sought from any other obligation it or they may
have under this Section 11(d) except to the extent that the failure to so notify such other party materially prejudiced
the substantive rights or defenses of the party from whom contribution is sought. Except for a settlement entered into pursuant
to the last sentence of Section 11(c) hereof, no party will be liable for contribution with respect to any action or claim
settled without its written consent if such consent is required pursuant to Section 11(c) hereof.
12. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 11 of this Agreement
and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of
their respective dates, regardless of (i) any investigation made by or on behalf of the Agent, any controlling persons, or
the Company (or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance of the Placement
Shares and payment therefor or (iii) any termination of this Agreement.
13. Termination.
(a) The
Agent may terminate this Agreement, by notice to the Company, as hereinafter specified at any time (1) if there has been,
since the time of execution of this Agreement or since the date as of which information is given in the Prospectuses, any change,
or any development or event involving a prospective change, in the condition, financial or otherwise, or in the business, properties,
earnings, results of operations or prospects of the Company and its Subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, which individually or in the aggregate, in the sole judgment of the Agent is material and adverse
and makes it impractical or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares,
(2) if there has occurred any material adverse change in the financial markets in the United States or the international financial
markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Agent, impracticable or inadvisable to sell the Placement Shares or to enforce contracts
for the sale of the Placement Shares, (3) if trading in the Common Shares has been suspended or limited by the Commission
or the Exchanges, or if trading generally on the Exchanges has been suspended or limited, or minimum prices for trading have been
fixed on the Exchanges, (4) if any suspension of trading of any securities of the Company on any exchange or in the over-the-counter
market shall have occurred and be continuing, (5) if a major disruption of securities settlements or clearance services in the
United States shall have occurred and be continuing, or (6) if a banking moratorium has been declared by either U.S. Federal
or New York authorities. Any such termination shall be without liability of any party to any other party except that the provisions
of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations
and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent
to Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination. If the Agent elects to terminate
this Agreement as provided in this Section 13(a), the Agent shall provide the required notice as specified in Section
14 (Notices).
(b) The
Company shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its
sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any
other party except that the provisions of Section 9, Section 11, Section 12, Section 18 and Section
19 hereof shall remain in full force and effect notwithstanding such termination.
(c) The
Agent shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 9, Section 11, Section 12, Section 18 and Section 19
hereof shall remain in full force and effect notwithstanding such termination.
(d) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 13(a), (b), or (c)
above or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement
shall in all cases be deemed to provide that Section 9, Section 11, Section 12, Section 18 and Section
19 shall remain in full force and effect.
(e) Unless
earlier terminated pursuant to this Section 13, this Agreement shall automatically terminate upon the issuance and sale
of all of the Placement Shares through the Agent on the terms and subject to the conditions set forth herein, except that the provisions
of Section 9, Section 11, Section 12, Section 18 and Section 19 hereof shall remain in full
force and effect notwithstanding such termination.
(f) Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by the Agent or
the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares,
such Placement Shares shall settle in accordance with the provisions of this Agreement.
14. Notices.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of
this Agreement shall be in writing, unless otherwise specified, and if sent to the Agent, shall be delivered to:
Cantor Xxxxxxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Capital
Markets
Facsimile: (000)
000-0000
and:
Cantor Xxxxxxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General
Counsel
Facsimile: (000)
000-0000
with a copy to:
Xxxxx Xxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx
X. Xxxxx
Telephone: (000)
000-0000
Email: xxxxxxx@xxxxxxxxxxx.xxx
and if to the
Company, shall be delivered to:
Correvio Pharma Corp.
0000 Xxxxxxxxx Xxxxx, 0xx
Xxxxx Xxxxxxxxx,
Xxxxxxx
Xxxxxxxx Xxxxxx, X0X 0X0
Attention: General Counsel
Email: Xxxxx@xxxxxxxx.xxx
with a copy to:
Skadden, Arps, Slate, Meager & Xxxx
LLP
000 Xxx Xxxxxx, Xxxxx 0000
X.X. Xxx 000
Xxxxxxx, Xxxxxxx
Xxxxxx, X0X 0X0
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
Email: Xxxxxxxx.Xxxxxxxx@xxxxxxx.xxx
and to:
Blake, Xxxxxxx & Xxxxxxx LLP 000
Xxxxxxx Xx #0000 Xxxxxxxxx, Xxxxxxx
Xxxxxxxx Xxxxxx X0X 0X0
Attention: Xxxxxx
X. Xxxxxx, Esq.
Email: xxxxxx.xxxxxx@xxxxxx.xxx
Each party to this Agreement
may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose.
Each such notice or other communication shall be deemed given (i) when delivered personally, by email, or by verifiable facsimile
transmission (with an original to follow) on or before 4:30 p.m., New York City time, on a Business Day or, if such day is
not a Business Day, on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized
overnight courier and (iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail,
return receipt requested, postage prepaid). For purposes of this Agreement, “Business Day” shall mean
any day on which the Exchange and commercial banks in the City of New York are open for business.
An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 14 if sent to the electronic
mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the
party sending Electronic Notice receives verification of receipt by the receiving party. Any party receiving Electronic Notice
may request and shall be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”)
which shall be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.
15. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agent and their respective
successors and the parties referred to in Section 11 hereof. References to any of the parties contained in this Agreement shall
be deemed to include the successors and permitted assigns of such party. Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their respective successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. Neither party
may assign its rights or obligations under this Agreement without the prior written consent of the other party; provided, however,
that the Agent may assign its rights and obligations hereunder to an affiliate thereof that is a registered broker-dealer without
obtaining the Company’s consent upon notice to the Company.
16. Adjustments
for Stock Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted
to take into account any share consolidation, stock split, stock dividend or similar event effected with respect to the Placement
Shares.
17. Entire
Agreement; Amendment; Severability; Waiver. This Agreement (including all schedules and exhibits attached hereto and Placement
Notices issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements
and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement
nor any term hereof may be amended except pursuant to a written instrument executed by the Company and the Agent. In the event
that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable as written by a court of competent jurisdiction, then such provision shall be given full force and effect to the
fullest possible extent that it is valid, legal and enforceable, and the remainder of the terms and provisions herein shall be
construed as if such invalid, illegal or unenforceable term or provision was not contained herein, but only to the extent that
giving effect to such provision and the remainder of the terms and provisions hereof shall be in accordance with the intent of
the parties as reflected in this Agreement. No implied waiver by a party shall arise in the absence of a waiver in writing signed
by such party. No failure or delay in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power,
or privilege hereunder.
18. GOVERNING
LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. EACH PARTY
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
19. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING
IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION
CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT
IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF
PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED
MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH
SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO
LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
20. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile
or electronic transmission.
21. Construction.
The section and exhibit headings herein are for convenience only and shall not affect the construction hereof. References
herein to any law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority shall be deemed
to refer to such law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority as amended,
reenacted, supplemented or superseded in whole or in part and in effect from time to time and also to all rules and regulations
promulgated thereunder.
22. Permitted
Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior written consent of
the Agent, and the Agent represents, warrants and agrees that, unless it obtains the prior written consent of the Company, it has
not made and will not make any offer relating to the Placement Shares that would constitute an Issuer Free Writing Prospectus,
or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with
the Commission. Any such free writing prospectus consented to by the Agent or by the Company, as the case may be, is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Company represents and warrants that it has treated and agrees
that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433,
and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including
timely filing with the Commission where required, legending and record keeping. For the purposes of clarity, the parties hereto
agree that all free writing prospectuses, if any, listed in Exhibit 21 hereto are Permitted Free Writing Prospectuses.
23. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) the
Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction
contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between
the Company or any of its respective affiliates, shareholders (or other equity holders), creditors or employees or any other party,
on the one hand, and the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated
by this Agreement, irrespective of whether or not the Agent has advised or is advising the Company on other matters, and the Agent
has no obligation to the Company with respect to the transactions contemplated by this Agreement except the obligations expressly
set forth in this Agreement;
(b) it
is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated
by this Agreement;
(c) neither
the Agent nor its affiliates have provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it
is aware that the Agent and its affiliates are engaged in a broad range of transactions which may involve interests that differ
from those of the Company and the Agent and its affiliates have no obligation to disclose such interests and transactions to the
Company by virtue of any fiduciary, advisory or agency relationship or otherwise; and
(e) it
waives, to the fullest extent permitted by law, any claims it may have against the Agent or its affiliates for breach of fiduciary
duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that the
Agent and its affiliates shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect
of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company,
employees or creditors of Company.
24. Definitions.
As used in this Agreement, the following terms have the respective meanings set forth below:
“Applicable
Time” means (i) each Representation Date, (ii) the time of each sale of any Placement Shares pursuant to this Agreement
and (iii) each Settlement Date.
“Governmental
Authority” means (i) any federal, provincial, state, local, municipal, national or international government or governmental
authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality,
court, tribunal, arbitrator or arbitral body (public or private); (ii) any self-regulatory organization; or (iii) any political
subdivision of any of the foregoing.
“Issuer Free
Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating
to the Placement Shares that (1) is required to be filed with the Commission by the Company, (2) is a “road show”
that is a “written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed
with the Commission, or (3) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of
the Placement Shares or a Placement of the offering that does not reflect the final terms, in each case in the form filed or required
to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to
Rule 433(g) under the Securities Act Regulations.
“Rule 164,”
“Rule 172,” “Rule 405,” and “Rule 433” refer
to such rules under the Securities Act Regulations.
All references in this
Agreement to financial statements and schedules and other information that is “contained,” “included” or
“stated” in the Registration Statement or the U.S. Prospectus (and all other references of like import) shall be deemed
to mean and include all such financial statements and schedules and other information that is incorporated by reference in the
Registration Statement or the U.S. Prospectus, as the case may be.
All references in this
Agreement to the Registration Statement, the U.S. Prospectus or any amendment or supplement to any of the foregoing shall be deemed
to include the copy filed with the Commission pursuant to XXXXX; all references in this Agreement to any Issuer Free Writing Prospectus
(other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission)
shall be deemed to include the copy thereof filed with the Commission pursuant to XXXXX; and all references in this Agreement to
“supplements” to the U.S. Prospectus shall include, without limitation, any supplements, “wrappers” or
similar materials prepared in connection with any offering, sale or private placement of any Placement Shares by the Agent outside
of the United States to the extent those materials are reviewed and consented to in advance by the Company.
[Signature Page Follows]
If the foregoing correctly
sets forth the understanding between the Company and the Agent, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company and the Agent.
|
By: |
/s/ Xxxxxx Xxxx |
|
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Name: Xxxxxx Xxxx |
|
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Title: President and Chief Financial Officer |
|
ACCEPTED as of the date first-above written: |
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By: |
/s/ Xxxx Xxxxx |
|
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Name: Xxxx Xxxxx |
|
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Title: Global Head of Investment Banking |
SCHEDULE 1
Form of Placement Notice
From: |
Correvio Pharma Corp. |
|
|
To: |
Cantor Xxxxxxxxxx & Co. |
|
Attention: [•] |
|
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Subject: |
Placement Notice |
|
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Date: |
[•], 201[•] |
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Ladies and Gentlemen:
Pursuant to the terms and
subject to the conditions contained in the Sales Agreement between Correvio Pharma Corp., a corporation formed under the Canada
Business Corporations Act (the “Company”), and Cantor Xxxxxxxxxx & Co. (“Agent”),
dated March 13, 2019, the Company hereby requests that the Agent sell up to [•] of the Company’s Common Shares, at a
minimum market price of $[•] per share, during the time period beginning [month, day, time] and ending [month, day, time]
or such time as all such shares are sold.
SCHEDULE 2
Compensation
The Company shall pay to
the Agent in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount equal to up to 3.0% of the aggregate
gross proceeds from each sale of Placement Shares.
SCHEDULE 3
Notice Parties
The Company
Xxxxx XxXxxxxxx |
xxxx@xxxxxxxx.xxx |
|
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Xxxx Xxxxxx |
xxxxxxx@xxxxxxxx.xxx |
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Xxxxxx Xxxx |
xxxxx@xxxxxxxx.xxx |
The Agent
Xxxxxx Xxxxxxx (xxxxxxxx@xxxxxx.xxx)
With copies to:
XXXxxxxxxxxxXxxxxxXxxxxxxx@xxxxxx.xxx
SCHEDULE 4
Subsidiaries
Correvio LLC
Correvio International
S.à.x.x.
Form of Representation Date Certificate Pursuant
to Section 7(l)
The undersigned, the duly
qualified and elected [•], of Correvio Pharma Corp., a corporation formed under the Canada Business Corporations Act
(the “Company”), does hereby certify in such capacity and on behalf of the Company, pursuant to Section 7(l)
of the Sales Agreement, dated March 13, 2019 (the “Sales Agreement”), between the Company and Cantor Xxxxxxxxxx &
Co., that to the best of the knowledge of the undersigned:
(i) The representations and
warranties of the Company in Section 6 of the Sales Agreement to the extent such representations and warranties are
subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect are true and correct
or, to the extent not covered by any qualifications or exceptions, are true and correct in all material respects on and as of the
date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations
and warranties that speak solely as of a specific date and which were true and correct as of such date; provided, however,
that such representations and warranties also shall be qualified by the disclosure included or incorporated by reference in the
Registration Statement and U.S. Prospectus; and
(ii) The Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied pursuant to the Sales Agreement at or prior to the date hereof.
Capitalized terms used
herein without definition shall have the meanings given to such terms in the Sales Agreement.
Date: [•]
Exhibit 21
Permitted Free Writing Prospectus
None.