Exhibit 1.1
Milestone Pharmaceuticals Inc.
16,666,667 Common Shares
Pre-Funded Warrants to Purchase 3,333,333 Common
Shares
UNDERWRITING AGREEMENT
February 28, 2024
Xxxxx Xxxxxxx & Co.
As Representative of the several Underwriters
c/o Xxxxx Xxxxxxx &
Co.
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
New York, New York 10020
Dear Sirs:
1. Introductory.
Milestone Pharmaceuticals Inc., a corporation continued under the laws of the Province of Québec, Canada (the “Company”)
proposes to sell, pursuant to the terms of this Agreement, to the several underwriters named in Schedule A hereto (the “Underwriters,”
or, each, an “Underwriter”), (i) an aggregate of 16,666,667 of its common shares without par value (the
“Firm Shares”) and (ii) warrants to purchase an aggregate of 3,333,333 of its common shares without par
value at an exercise price of $0.001 per share (the “Pre-Funded Warrants” and, together with the Firm Shares,
the “Firm Securities”). The Company also proposes to sell to the Underwriters, upon the terms and conditions
set forth in Section 3 hereof, up to an additional 3,000,000 shares of common shares without par value (the “Optional
Shares”). The Firm Shares and the Optional Shares are hereinafter collectively referred to as the “Shares”
and, together with the Pre-Funded Warrants, the “Offered Securities.” The common shares without par value of
the Company (“Common Shares”) issuable upon exercise of the Pre-Funded Warrants are herein referred to as the
“Warrant Shares.” Xxxxx Xxxxxxx & Co. (“Xxxxx Xxxxxxx”) is acting
as representative of the several Underwriters and in such capacity is hereinafter referred to as the “Representative.”
2. Representations
and Warranties of the Company. The Company represents and warrants to the several Underwriters, as of the date hereof and as
of the Closing Date (as defined below) and the Option Closing Date (as defined below) and agrees with the several Underwriters, that:
(a) Registration
Statement. A registration statement of the Company on Form S-3 (File No. 333-261049) (including all amendments thereto,
the “Initial Registration Statement”) in respect of the Shares, the Pre-Funded Warrants and the Warrant Shares
has been filed with the Securities and Exchange Commission (the “Commission”) pursuant to Rule 415 under
the Securities Act of 1933, as amended (the “Securities Act”). The Company meets the requirements for use of
Form S-3 under the Securities Act, and the rules and regulations of the Commission thereunder (the “Rules and
Regulations”). The Initial Registration Statement and any post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto, to you for each of the other Underwriters, have been declared effective by the Commission
in such form and meet the requirements of the Securities Act, and the rules and regulations of the Commission thereunder (the “Rules and
Regulations”). The proposed offering of the Offered Securities and Warrant Shares may be made pursuant to General Instruction
I.B.1 of Form S-3. Other than (i) the Initial Registration Statement, (ii) a registration statement, if any, increasing
the size of the offering filed pursuant to Rule 462(b) under the Securities Act and the Rules and Regulations (a “Rule 462(b) Registration
Statement”), (iii) the Base Prospectus (as defined below), (iv) the Prospectus (as defined below) contemplated
by this Agreement to be filed pursuant to Rule 424(b) of the Rules and Regulations in accordance with Section 4(a) hereof
and (v) any Issuer Free Writing Prospectus (as defined below), no other document with respect to the offer or sale of the Stock has
heretofore been filed with the Commission. No stop order suspending the effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has been issued and no proceeding for that purpose or pursuant
to Section 8A of the Securities Act has been initiated or threatened by the Commission (any preliminary prospectus included in the
Initial Registration Statement is hereinafter called the “Base Prospectus” and any preliminary prospectus filed
with the Commission pursuant to Rule 424 of the Rules and Regulations is hereinafter called a “Preliminary Prospectus”).
The Initial Registration Statement including all exhibits thereto and including the information contained in the Prospectus filed with
the Commission pursuant to Rule 424(b) of the Rules and Regulations and deemed by virtue of Rule 430A, 430B and 430C
under the Securities Act to be part of the Initial Registration Statement at the time it became effective is hereinafter collectively
called the “Registration Statement.” If the Company has filed a Rule 462(b) Registration Statement,
then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration
Statement. The Base Prospectus included in the Initial Registration Statement at the time of effectiveness thereof, as supplemented by
the prospectus supplement relating to the offer and sale of the Offered Securities, in the form filed pursuant to and within the time
limits described in Rule 424(b) under the Rules and Regulations, is hereinafter called the “Prospectus.”
Any reference herein to the Registration
Statement, the Base Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein.
Any reference to any amendment or supplement to the Base Prospectus or the Prospectus shall be deemed to refer to and include any documents
filed after the date of the Base Prospectus or the Prospectus under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and incorporated by reference in the Base Prospectus or the Prospectus, as the case may be. Any reference to any
amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the date of this Agreement that is incorporated by reference in the Registration Statement.
(b) General
Disclosure Package. As of the Applicable Time (as defined below) and as of the Closing Date or the Option Closing Date, as the case
may be, neither (i) the General Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time, the
Pricing Prospectus (as defined below) and the information included on Schedule C hereto, all considered together (collectively,
the “General Disclosure Package”), (ii) any individual Limited Use Free Writing Prospectus (as defined
below), (iii) the bona fide electronic roadshow (as defined in Rule 433(h)(5) of the Rules and Regulations); nor (iv) any
individual Written Testing-the-Waters Communication, when considered together with the General Disclosure Package, included or will include
any untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations
or warranties as to information contained in or omitted from the Pricing Prospectus or any Issuer Free Writing Prospectus (as defined
below), in reliance upon, and in conformity with, written information furnished to the Company through the Representative by or on behalf
of any Underwriter specifically for inclusion therein, which information the parties hereto agree is limited to the Underwriter’s
Information (as defined in Section 18). As used in this paragraph (b) and elsewhere in this Agreement:
“Applicable Time”
means 7:40 P.M., New York time, on the date of this Agreement or such other time as agreed to by the Company and the Representative.
“Issuer Free Writing Prospectus”
means any “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations relating to the
Offered Securities 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) of the Rules and Regulations.
“General Use Free Writing
Prospectus” means any Issuer Free Writing Prospectus that is identified on Schedule B to this Agreement.
“Limited Use Free Writing
Prospectuses” means any Issuer Free Writing Prospectus that is not a General Use Free Writing Prospectus.
“Pricing Prospectus”
means the Base Prospectus, as amended and supplemented immediately prior to the Applicable Time, including any document incorporated by
reference therein, as supplemented by any Preliminary Prospectus and other documents and pricing information set forth in Schedule
C.
“Testing-the-Waters Communication”
means any oral or written communication with potential investors undertaken in reliance on Section 5(d) or 163B of the Securities
Act.
“Written Testing-the-Waters
Communication” means any Testing-the-Waters Communication (as defined below) that is a written communication within the
meaning of Rule 405 of the Rules and Regulations.
(c) No
Stop Orders; No Material Misstatements. No order preventing or suspending the use of the Base Prospectus, any Preliminary Prospectus,
any Issuer Free Writing Prospectus or the Prospectus relating to the proposed offering of the Offered Securities has been issued by the
Commission, and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been instituted or threatened
by the Commission, and the Base Prospectus and the Preliminary Prospectus, at the time of filing thereof, conformed in all material respects
to the requirements of the Securities Act and the Rules and Regulations, and did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to information
contained or incorporated by reference in or omitted from any Preliminary Prospectus, in reliance upon, and in conformity with, written
information furnished to the Company through the Representative by or on behalf of any Underwriter specifically for inclusion therein,
which information the parties hereto agree is limited to the Underwriters’ Information.
(d) Registration
Statement and Prospectus Contents. At the respective times, the Registration Statement and any amendments thereto became or become
effective as to the Underwriters and at the Closing Date, the Registration Statement and any amendments thereto conformed and will conform
in all material respects to the requirements of the Securities Act and the Rules and Regulations and did not and will not contain
any 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 the Prospectus and any amendments or supplements thereto, at the time the Prospectus or any amendment or supplement
thereto was issued and at the Closing Date and the Option Closing Date, conformed and will conform in all material respects to the requirements
of the Securities Act and the Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that the foregoing representations and warranties in this paragraph (d) shall not
apply to information contained in or omitted from the Registration Statement or the Prospectus, or any amendment or supplement thereto,
in reliance upon, and in conformity with, written information furnished to the Company through the Representative by or on behalf of any
Underwriter specifically for inclusion therein, which information the parties hereto agree is limited to the Underwriter’s Information.
(e) Issuer
Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion
of the public offer and sale of the Offered Securities or until any earlier date that the Company notified or notifies the Representative
as described in Section 4(f), did not, does not and will not include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement, the General Disclosure Package or the Prospectus, including any document
incorporated by reference therein and any prospectus supplement deemed to be a part thereof that has not been superseded or modified,
or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading,
provided, however, that the foregoing representations and warranties in this paragraph (e) shall not apply to information
contained in or omitted from the Registration Statement or the Prospectus, or any amendment or supplement thereto, in reliance upon, and
in conformity with, written information furnished to the Company through the Representative by or on behalf of any Underwriter specifically
for inclusion therein, which information the parties hereto agree is limited to the Underwriter’s Information.
(f) Documents
Incorporated by Reference. The documents incorporated by reference in the Prospectus, when they were filed with the Commission conformed
in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder and none of such documents contained any untrue statement of a material fact or omitted 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; and any further documents so filed and incorporated by reference in the Prospectus, when such documents are filed
with Commission will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain any 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.
(g) Distribution
of Offering Materials. The Company has not, directly or indirectly, distributed and will not distribute any offering material in connection
with the offering and sale of the Offered Securities other than the Base Prospectus, any Preliminary Prospectus, the Prospectus and other
materials, if any, permitted under the Securities Act and consistent with Section 4(c) below. The Company will file with the
Commission all Issuer Free Writing Prospectuses (other than a “road show” as described in Rule 433(d)(8) of the
Rules and Regulations) in the time and manner required under Rules 163(b)(2) and 433(d) of the Rules and Regulations.
(h) Emerging
Growth Company. From the first date on which the Company engaged directly or through any person authorized to act on its behalf in
any communication in reliance on Section 5(d) of the Securities Act) through the date hereof, the Company has been and is an
“emerging growth company,” as defined in Section 2(a) of the Securities Act (an “Emerging Growth Company”).
(i) Not
an Ineligible Issuer. (A) At the time of filing the Initial Registration Statement, any Rule 462(b) Registration Statement
and any post-effective amendments thereto, and at the date hereof, the Company was not, and the Company currently is not, an “ineligible
issuer,” as defined in Rule 405 of the Rules and Regulations.
(j) Testing
the Waters Communications. The Company (a) has not alone engaged in any Testing-the-Waters Communication and (b) has
not authorized anyone other than the Representative to engage in Testing-the-Waters Communications. The Company reconfirms that the Representative
has been authorized to act on its behalf in undertaking Testing-the-Waters Communications and has not distributed any Written Testing-the-Waters
Communications.
(k) Canadian
Reporting Issuer. The Company is a reporting issuer in the Province of Quebec and is not on the list of defaulting reporting
issuers maintained by the Autorité des marchés financiers (Québec) (the “AMF”). The Company
has not filed any confidential material change reports which remain confidential at the date hereof.
(l) Québec
Securities Laws. The Company has complied with the securities laws of the Province of Québec, including the rules and
regulations made thereunder together with applicable published national and local instruments, policy statements, notices, blanket rulings
and orders of the AMF, and all discretionary rulings and orders applicable to the Company, if any, of the Canadian securities commissions
required to be complied with by the Company in order to sell the Offered Securities outside Canada as contemplated by this Agreement.
To the Company’s knowledge, no order, ruling or decision of any court or any securities regulatory authority in Canada is in effect
that restricts or ceases trades in securities of the Company.
(m) Organization
and Good Standing. The Company and its Subsidiary (as defined below) have been duly organized and are validly existing as corporations
or other legal entities in good standing (or the foreign equivalent thereof) under the laws of their respective jurisdictions of organization.
The Company and its Subsidiary are duly qualified to do business and are in good standing as foreign corporations or other legal entities
in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such
qualification and have all power and authority (corporate or other) necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure to so qualify or have such power or authority would not, singularly
or in the aggregate, (i) have a material adverse effect, or result in a development that could be expected to result in a material
adverse effect on the condition, financial or otherwise, or in the earnings, business, properties, operations, operating results, assets,
liabilities or prospects, whether or not arising from transactions in the ordinary course of business, of the Company and its Subsidiary,
considered as one entity, or (ii) impair in any material respect the ability of the Company to perform its obligations under this
Agreement or to consummate any transactions contemplated by this Agreement, the General Disclosure Package or the Prospectus (any such
effect as described in clauses (i) or (ii), a “Material Adverse Effect”).
(n) Underwriting
Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(o) The
Securities. (i) The Shares to be issued and sold by the Company hereunder have been duly authorized by the Company and, when
issued and delivered and paid for as provided herein, will be duly and validly issued, will be fully paid and nonassessable; (ii) the
Pre-Funded Warrants have been duly authorized by the Company and, when executed and delivered by the Company and paid for in accordance
with this Agreement, will constitute valid and legally binding agreements of the Company enforceable against the Company in accordance
with their terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’
rights generally or by equitable principles relating to enforceability; (iii) the Warrant Shares to be issued by the Company upon
exercise of the Warrants, as provided therein, have been duly authorized and, when issued and delivered and paid for upon exercise as
provided under the Warrant, will be validly issued, fully paid and non-assessable; (iv) the issuance of the Offered Securities and
the Warrant Shares is not subject to any preemptive, rights of first refusal or similar rights that have not been duly waived or satisfied;
and (v) the Shares, the Pre-Funded Warrants and the Warrant Shares conform to the descriptions thereof contained in the Registration
Statement, the General Disclosure Package and the Prospectus.
(p) Capitalization.
The authorized, issued and outstanding share capital of the Company is as set forth in the Registration Statement, the General Disclosure
Package and the Prospectus (other than for subsequent issuances, if any, pursuant to employee benefit plans, or upon the exercise of outstanding
options or warrants, in each case described in the Registration Statement, the General Disclosure Package and the Prospectus). All of
the issued and outstanding Common Shares have been duly authorized and validly issued, are fully paid and non-assessable and have been
issued in compliance with all U.S. and Canadian federal, state and provincial securities laws. None of the outstanding Common Shares were
issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities
of the Company. There are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to
purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any share capital of the Company or the Subsidiary
other than those described in the Registration Statement, the General Disclosure Package and the Prospectus. The descriptions of the Company’s
share option, share bonus and other share plans or arrangements, and the options or other rights granted thereunder, set forth in the
Registration Statement, the General Disclosure Package and the Prospectus accurately and fairly presents, in all material respects, the
information required to be shown with respect to such plans, arrangements, options and rights.
(q) Subsidiaries.
The Company has no “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X under the Securities Act). The
Company has no subsidiaries (for purposes of this Agreement, as defined in Rule 405 under the Securities Act) other than Milestone
Pharmaceuticals USA, Inc., a Delaware corporation (the “Subsidiary”). All of the issued and outstanding
shares of capital stock or other equity or ownership interests of the Subsidiary have been duly authorized and validly issued, are fully
paid and non-assessable and are owned by the Company directly free and clear of any security interest, mortgage, pledge, lien, encumbrance
or adverse claim. None of the outstanding capital stock of the Subsidiary was issued in violation of preemptive or similar rights of any
security holder of the Subsidiary. The organizational documents of the Subsidiary comply in all material respects with the requirements
of applicable laws of its jurisdiction of incorporation and are in full force and effect. The Company does not own or control, directly
or indirectly, any corporation, association or other entity other than the Subsidiary.
(r) Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. Neither the Company nor the Subsidiary is in violation of
its articles or by-laws or similar organizational documents, as applicable, or is in default (or, with the giving of notice or lapse of
time, would be in default) (“Default”) under any indenture, loan, credit agreement, note, lease, license agreement,
contract, franchise or other instrument (including, without limitation, any pledge agreement, security agreement, mortgage or other instrument
or agreement evidencing, guaranteeing, securing or relating to indebtedness) to which the Company or the Subsidiary is a party or by which
it or any of them may be bound, or to which any of their respective properties or assets are subject (each, an “Existing Instrument”),
except for such Defaults as could not be expected, individually or in the aggregate, to result in a Material Adverse Effect. The Company’s
execution, delivery and performance of this Agreement, consummation of the transactions contemplated hereby and by the Registration Statement,
the General Disclosure Package and the Prospectus and the issuance and sale of the Offered Securities and Warrant Shares (including the
use of proceeds from the sale of the Offered Securities and Warrant Shares as described in the Registration Statement, the General Disclosure
Package and the Prospectus under the caption “Use of Proceeds”) (i) have been duly authorized by all necessary corporate
action and will not result in any violation of the provisions of the articles or by-laws or similar organizational documents, as applicable,
of the Company or the Subsidiary, (ii) will not conflict with or constitute a breach of, or Default or a Debt Repayment Triggering
Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets
of the Company or the Subsidiary pursuant to, or require the consent of any other party to, any Existing Instrument and (iii) will
not result in any violation of any law, administrative regulation or administrative or court decree applicable to the Company or the Subsidiary,
except in the case of (ii) and (iii) as would not reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental
or regulatory authority or agency, is required for the Company’s execution, delivery and performance of this Agreement and consummation
of the transactions contemplated hereby and by the Registration Statement, the General Disclosure Package and the Prospectus, except (A) such
as have been obtained or made by the Company and are in full force and effect under the Securities Act and such as may be required under
applicable state securities or blue sky laws or the Financial Industry Regulatory Authority, Inc. (“FINRA”),
(B) for the filing with the AMF of a notice under Section 12 of the Securities Act (Québec) (the “Québec
Securities Act”), which notice has been filed, to which notice the AMF has not objected, or in respect of which the time
period during which the AMF may raise any objection has elapsed, all as prescribed by Section 12 of the Québec Securities
Act and (C) if applicable, the filing of a report of exempt distribution under NI 45-106 with payment of applicable filing fees to,
and if applicable, delivery of any final Canadian offering memorandum to (as applicable) the securities regulatory authority in each jurisdiction
of Canada in which sales of the Offered Securities are made and such delivery is required. As used herein, a “Debt Repayment
Triggering Event” means any event or condition which gives, or with the giving of notice or lapse of time would give, the
holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or the Subsidiary.
(s) Independent
Auditors. PricewaterhouseCoopers LLP, which has expressed its opinion with respect to the financial statements (which term as used
in this Agreement includes the related notes thereto) filed with the Commission as a part of the Registration Statement, the General Disclosure
Package and the Prospectus, is (i) an independent registered public accounting firm as required by the Securities Act, the Exchange
Act, and the rules of the Public Company Accounting Oversight Board (“PCAOB”), (ii) in compliance
with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X under the Securities
Act and (iii) a registered public accounting firm as defined by the PCAOB whose registration has not been suspended or revoked and
who has not requested such registration to be withdrawn.
(t) Financial
Statements. The financial statements filed with the Commission as a part of the Registration Statement, the General Disclosure Package
and the Prospectus present fairly, in all material respects, the consolidated financial position of the Company and the Subsidiary as
of and at the dates indicated and the results of their operations, changes in shareholders’ equity and cash flows for the periods
specified. Such financial statements have been prepared in conformity with generally accepted accounting principles as applied in the
United States applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto.
The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement fairly
presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and
guidelines. No other financial statements or supporting schedules are required to be included in the Registration Statement, the General
Disclosure Package or the Prospectus. To the Company’s knowledge, no person who has been suspended or barred from being associated
with a registered public accounting firm, or who has failed to comply with any sanction pursuant to Rule 5300 promulgated by the
PCAOB, has participated in or otherwise aided the preparation of, or audited, the financial statements, or other financial data filed
with the Commission as a part of the Registration Statement, the General Disclosure Package and the Prospectus.
(u) Company’s
Accounting Systems. The Company and the Subsidiary make and keep books and records that are accurate in all material respects and
maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed
in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting principles as applied in the United States and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the
recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect
to any differences; and (v) the interactive data in eXtensible Business Reporting Language included or incorporated by reference
in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the information called for in all material
respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(v) No
Material Adverse Effect. Except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus,
subsequent to the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and
the Prospectus: (i) no event has occurred that has resulted in or may reasonably be expected to result in Material Adverse Effect
has occurred; (ii) the Company and the Subsidiary, considered as one entity, have not incurred any material liability or obligation,
indirect, direct or contingent, including without limitation any losses or interference with their business from fire, explosion, flood,
earthquakes, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute or court or governmental
action, order or decree, that are material, individually or in the aggregate, to the Company and the Subsidiary, considered as one entity,
and have not entered into any transactions not in the ordinary course of business; and (iii) there has not been any material decrease
in the share capital or any material increase in any short-term or long-term indebtedness of the Company or the Subsidiary and there has
been no dividend or distribution of any kind declared, paid or made by the Company or, except for dividends paid to the Company, by the
Subsidiary on any class of share capital, or any repurchase or redemption by the Company or the Subsidiary of any class of share capital.
(w) Legal
Proceedings. There is no action, suit, proceeding, inquiry or investigation brought by or before any legal or governmental entity
now pending or, to the Company’s knowledge, threatened, against or affecting the Company or the Subsidiary, which would reasonably
be expected, individually or in the aggregate, to result in a Material Adverse Effect. No material labor dispute with the employees of
the Company or the Subsidiary, or with the employees of any principal supplier, manufacturer, customer or contractor of the Company, exists
or, to the Company’s knowledge, is threatened or imminent.
(x) Licenses
or Permits. The Company and the Subsidiary possess such valid and current certificates, authorizations or permits required by state,
federal or foreign regulatory agencies or bodies to conduct their respective businesses as currently conducted and as described in the
Registration Statement, the General Disclosure Package or the Prospectus (“Permits”), except where the failure
to so possess would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. Neither the
Company nor the Subsidiary is in violation of, or in default under, any of the Permits or has received any notice of proceedings relating
to the revocation or modification of, or non-compliance with, any such certificate, authorization or permit, except as would not reasonably
be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(y) Compliance
with Laws. The Company and the Subsidiary have been and are in compliance with all applicable laws, rules and regulations (including,
for the avoidance of doubt, all applicable Canadian and U.S. securities laws), except where failure to be so in compliance would not reasonably
be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(z) Clinical
Data. The preclinical tests and clinical trials, and other studies (collectively, “Studies”) that are described
in, or the results of which are referred to in, the Registration Statement, the General Disclosure Package or the Prospectus were and,
if still pending, are being conducted in all material respects in accordance with the protocols, procedures and controls designed and
approved for such Studies and with standard medical and scientific research procedures; each description of the results of such Studies
is accurate and complete in all material respects and fairly presents the data derived from such Studies, and the Company and the Subsidiary
have no knowledge of any other Studies the results of which are inconsistent with, or otherwise call into question, the results described
or referred to in the Registration Statement, the General Disclosure Package or the Prospectus; the Company and the Subsidiary have made
all such filings and obtained all such approvals as may be required for the conduct of its business by the Food and Drug Administration
of the U.S. Department of Health and Human Services or any committee thereof or from any other U.S. or foreign government or drug or medical
device regulatory agency, or health care facility Institutional Review Board (collectively, the “Regulatory Agencies”);
neither the Company nor the Subsidiary has received any notice of, or correspondence from, any Regulatory Agency requiring the termination,
suspension or modification of any clinical trials that are described or referred to in the Registration Statement, the General Disclosure
Package or the Prospectus; and the Company and the Subsidiary have each operated and currently are in compliance in all material respects
with all applicable rules, regulations and policies of the Regulatory Agencies.
(aa) Investment
Company Act. The Company is not, and will not be, either after receipt of payment for the Offered Securities or after the application
of the proceeds therefrom as described under “Use of Proceeds” in the Registration Statement, the General Disclosure Package
or the Prospectus, required to register as an “investment company” under the Investment Company Act of 1940, as amended (the
“Investment Company Act”).
(bb) No
Stabilization. Neither the Company nor the Subsidiary has taken, directly or indirectly, and excluding any activities by the Underwriters,
any action designed to or that might cause or result in stabilization or manipulation of the price of the Common Shares or of any “reference
security” (as defined in Rule 100 of Regulation M under the Exchange Act (“Regulation M”)) with respect
to the Common Shares, whether to facilitate the sale or resale of the Offered Securities or otherwise, and has taken no action which would
directly or indirectly violate Regulation M.
(cc) Intellectual
Property. The Company and the Subsidiary own, or have obtained valid and enforceable licenses, if any, for, the inventions, patent
applications, patents, trademarks, trade names, service names, copyrights, trade secrets and other intellectual property described in
the Registration Statement, the General Disclosure Package and the Prospectus as being owned or licensed by them or which are necessary
for the conduct of their respective businesses as currently conducted or as currently proposed to be conducted (collectively, “Intellectual
Property”), except where the failure to have such Intellectual Property would not reasonably be expected to result in, individually
or in the aggregate, a Material Adverse Effect. To the Company’s knowledge: (i) there are no third parties who have rights
to any Intellectual Property that is disclosed in the Registration Statement, the General Disclosure Package and the Prospectus; and (ii) there
is no infringement by third parties of any Intellectual Property. There is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others: (A) challenging the Company’s rights in or to any Intellectual Property, and the
Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim; (B) challenging
the validity, enforceability or scope of any material Intellectual Property, and the Company is unaware of any facts which would form
a reasonable basis for any such action, suit, proceeding or claim; or (C) asserting that the Company or the Subsidiary infringes
or otherwise violates, or would, upon the commercialization of any product or service described in the Registration Statement, the General
Disclosure Package or the Prospectus as under development, infringe or violate, any patent, trademark, trade name, service name, copyright,
trade secret or other proprietary rights of others, and the Company is unaware of any facts which would form a reasonable basis for any
such action, suit, proceeding or claim. The product candidates described in the Registration Statement, the General Disclosure Package
and the Prospectus as under development by the Company or the Subsidiary fall within the scope of the claims of one or more patents owned
by, or exclusively licensed to, the Company or the Subsidiary.
(dd) IT
Systems. The Company and the Subsidiary’s information technology assets and equipment, computers, systems, networks, hardware,
software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and
perform in all material respects as required in connection with the operation of the business of the Company and the Subsidiary as currently
conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company
and the Subsidiary have implemented and maintained commercially reasonable physical, technical and administrative controls, policies,
procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy
and security of all IT Systems and data, including “Personal Data,” used in connection with their businesses. “Personal
Data” means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social
security number or tax identification number, driver’s license number, passport number, credit card number, bank information, or
customer or account number; (ii) any information which would qualify as “personally identifying information” under the
Federal Trade Commission Act, as amended; (iii) “personal data” as defined by GDPR; (iv) any information which would
qualify as “protected health information” under the Health Insurance Portability and Accountability Act of 1996, as amended
by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”); and (v) any
other piece of information that permits the collection or analysis of any data related to an identified person’s health or sexual
orientation. There have been no breaches, violations, outages or unauthorized uses of or accesses to same, except for those that have
been remedied without material cost or liability or the duty to notify any other person, nor any incidents under internal review or investigations
relating to the same. The Company and the Subsidiary are presently in material compliance with all applicable laws or statutes and all
judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and
contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems
and Personal Data from unauthorized use, access, misappropriation or modification.
(ee) Privacy
Laws. The Company and the Subsidiary are, and at all prior times were, in material compliance with all applicable state and federal
data privacy and security laws and regulations, including without limitation HIPAA, and the Company and the Subsidiary have taken commercially
reasonable actions to prepare to comply with, and since May 25, 2018, have been and currently are in compliance with, the European
Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, the “Privacy Laws”).
To ensure compliance with the Privacy Laws, the Company and the Subsidiary have in place, comply with, and take appropriate steps reasonably
designed to ensure compliance in all material respects with their policies and procedures relating to data privacy and security and the
collection, storage, use, disclosure, handling, and analysis of Personal Data (the “Policies”). The Company
and the Subsidiary have at all times made all disclosures to users or customers required by applicable laws and regulatory rules or
requirements, and none of such disclosures made or contained in any Policy have, to the knowledge of the Company, been inaccurate or in
violation of any applicable laws and regulatory rules or requirements in any material respect. The Company further certifies that
neither it nor the Subsidiary: (i) has received notice of any actual or potential liability under or relating to, or actual or potential
violation of, any of the Privacy Laws, and has no knowledge of any event or condition that would reasonably be expected to result in any
such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation, or other corrective
action pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement that imposes any obligation or liability
under any Privacy Law.
(ff) Title
to Real and Personal Property. The Company and the Subsidiary have good and marketable title to all of the real and personal property
or, in Québec, good and valid title to all real property and all personal property and other assets reflected as owned in the financial
statements referred to in Section 2(t) above (or elsewhere in the Registration Statement, the General Disclosure Package or
the Prospectus), in each case free and clear of any security interests, mortgages, liens, encumbrances, equities, adverse claims and other
defects, except where the failure to so possess would not reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect. The real property, improvements, equipment and personal property held under lease by the Company or the Subsidiary are
held under valid and enforceable leases, with such exceptions as are not material and do not materially interfere with the use made or
proposed to be made of such real property, improvements, equipment or personal property by the Company or the Subsidiary.
(gg) Compliance
with ERISA. The Company, and the Subsidiary and any “employee benefit plan” (as defined under the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”))
established or maintained by the Company, the Subsidiary or their “ERISA Affiliates” (as defined below) are in compliance
in all material respects with ERISA. “ERISA Affiliate” means, with respect to the Company or the Subsidiary,
any member of any group of organizations described in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986,
as amended, and the regulations and published interpretations thereunder (the “Code”) of which the Company or
the Subsidiary is a member. No “reportable event” (as defined under ERISA) has occurred or is reasonably expected to occur
with respect to any “employee benefit plan” established or maintained by the Company, the Subsidiary or any of their ERISA
Affiliates. No “employee benefit plan” established or maintained by the Company, the Subsidiary or any of their ERISA Affiliates,
if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined
under ERISA). Neither the Company, the Subsidiary nor any of their ERISA Affiliates has incurred or reasonably expects to incur any liability
under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections
412, 4971, 4975 or 4980B of the Code. Each employee benefit plan established or maintained by the Company, the Subsidiary or any of their
ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing has occurred,
whether by action or failure to act, which would cause the loss of such qualification. Neither the Company nor the Subsidiary has any
actual or contingent liability or obligation to or in respect of any employee benefit plan with a “defined benefit provision”
(within the meaning of subsection 147.1(1) of the Income Tax Act (Canada)), or any other plan that is required to be registered pursuant
to applicable pension benefit standards legislation of provincial or federal jurisdiction in Canada, including without limitation the
Supplemental Pension Plans Act (Québec).
(hh) Environmental
Laws and Hazardous Materials. Except as would not reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect: (i) neither the Company nor the Subsidiary is in violation of any federal, state, provincial, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively, “Hazardous Materials”) or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental
Laws”); (ii) the Company and the Subsidiary have all permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements; (iii) there are no pending or, to the Company’s knowledge,
threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law against the Company or the Subsidiary; and (iv) to the
Company’s knowledge, there are no events or circumstances that might reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company
or the Subsidiary relating to Hazardous Materials or any Environmental Laws.
(ii) Taxes.
The Company and the Subsidiary have filed all U.S. and Canadian federal, and material state, provincial, municipal and local and any other
foreign tax returns that are required to be filed or have properly requested extensions thereof and have paid all taxes required to be
paid by any of them and, if due and payable, any related or similar assessment, fine or penalty levied against any of them except as may
be contested in good faith and by appropriate proceedings and except where the failure to file or pay would not reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect. The Company has made adequate charges, accruals and reserves
in the applicable financial statements referred to in Section 2(t) above in respect of all U.S. and Canadian federal, state,
provincial, municipal, local and foreign taxes for all periods as to which the tax liability of the Company or the Subsidiary has not
been finally determined, except where the failure to make such adequate charge, accrual or reserve would not reasonably be expected, individually
or in the aggregate, to result in a Material Adverse Effect.
(jj) Insurance.
Each of the Company and the Subsidiary are insured by recognized, financially sound and reputable institutions with policies in such amounts
and with such deductibles and covering such risks as are generally deemed adequate and customary for their businesses including, but not
limited to, policies covering material real and personal property owned or leased by the Company and the Subsidiary against theft, damage,
destruction, acts of vandalism and earthquakes and policies covering the Company and the Subsidiary for product liability claims and clinical
trial liability claims. The Company has no reason to believe that it or the Subsidiary will not be able (i) to renew its existing
insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary
or appropriate to conduct its business as now conducted and at a cost that could not reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor the Subsidiary has been denied any insurance coverage which it has sought or for which it has applied.
(kk) Accounting
Controls. The Company maintains a system of “internal control over financial reporting” (as such term is defined in Rule 13a-15(f) of
the General Rules and Regulations under the Exchange Act (the “Exchange Act Rules”)) that is designed to
comply with the requirements of the Exchange Act and has been designed by their respective principal executive and principal financial
officers, or under their supervision, to provide reasonable assurances that (i) transactions are executed in accordance with management’s
general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences and (v) interactive data in eXtensible Business Reporting
Language included or incorporated by reference in the Registration Statement fairly presents the Commission’s rules and guidelines
applicable thereto. The Company’s internal control over financial reporting is effective. Except as described in the General Disclosure
Package, since the end of the Company’s most recent audited fiscal year, there has been (A) no material weakness in the Company’s
internal control over financial reporting (whether or not remediated) and (B) 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.
(ll) Disclosure
Controls. The Company maintains disclosure controls and procedures (as such is defined in Rule 13a-15(e) of the Exchange
Act Rules) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure
that information required to be disclosed by the Company in 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 controls and procedures
designed to ensure that such information is accumulated and communicated to the Company’s management to allow timely decisions regarding
disclosures. The Company has conducted evaluations of the effectiveness of its disclosure controls as required by Rule 13a-15 of
the Exchange Act.
(mm) [Reserved.]
(nn) No
Undisclosed Relationships. There are no business relationships or related-party transactions involving the Company or the Subsidiary
or any other person required to be described in the Registration Statement, the General Disclosure Package or the Prospectus that have
not been described as required.
(oo) No
Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any equity
or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement.
(pp) Margin
Rules. The application of the proceeds received by the Company from the issuance, sale and delivery of the Offered Securities as described
in the General Disclosure Package and the Prospectus will not 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.
(qq) No
Broker’s Fees. Except pursuant to this Agreement, there is no broker, finder or other party that is entitled to receive from
the Company any brokerage or finder’s fee or other fee or commission as a result of any transactions contemplated by this
Agreement.
(rr) No
Restrictions on the Subsidiary. Except as described in the General Disclosure Package and the Prospectus, the Subsidiary is not currently
prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, 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 the Subsidiary from the Company or from transferring any of the Subsidiary’s properties or assets to the Company.
(ss) PFIC.
The Company believes that it was not classified as a passive foreign investment company within the meaning of Section 1297 of the
Code for the taxable year ending December 31, 2022.
(tt) Forward-Looking
Statements. Each financial or operational projection or other “forward-looking statement” (as defined by Section 27A
of the Securities Act or Section 21E of the Exchange Act) contained in the Registration Statement, the General Disclosure Package
or the Prospectus (i) was so included by the Company in good faith and with reasonable basis after due consideration by the Company
of the underlying assumptions, estimates and other applicable facts and circumstances and (ii) is accompanied by meaningful cautionary
statements identifying those factors that could cause actual results to differ materially from those in such forward-looking statement.
No such statement was made with the knowledge of an “officer” (within the meaning of Rule 16a-1(f) under the Exchange
Act) or director of the Company that it was false or misleading.
(uu) Listing.
The Common Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act and are listed on The Nasdaq Global
Select Market (“Nasdaq”), and the Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Shares under the Exchange Act or delisting the Common Shares from Nasdaq, nor has the Company
received any notification that the Commission or Nasdaq is contemplating terminating such registration or listing. To the Company’s
knowledge, it is in compliance with all applicable listing requirements of Nasdaq.
(vv) Xxxxxxxx-Xxxxx
Act. There is, and has been, no failure on the part of the Company or any of the Company’s directors or officers, in their capacities
as such, to comply in all material respects with any applicable provision of the Xxxxxxxx-Xxxxx Act of 2002, as amended and the rules and
regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
(ww) No
Outstanding Loans or Other Extensions of Credit. The Company does not have any outstanding extension of credit, in the form of a personal
loan, to or for any director or executive officer (or equivalent thereof) of the Company except for such extensions of credit as are expressly
permitted by Section 13(k) of the Exchange Act.
(xx) No
Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the Company’s knowledge, any director, officer, employee,
agent, affiliate or other person acting on behalf of the Company or the Subsidiary, has (i) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to political activity, (ii) made any direct or indirect unlawful
payment to foreign or domestic government officials or employees, political parties or campaigns, political party officials, or candidates
for political office from corporate funds, (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices
Act of 1977, as amended, the Corruption of Foreign Public Officials Act (Canada), the UK Bribery Act 2010, or any applicable anti-corruption
laws, rules, or regulation of any other jurisdiction in which the Company or the Subsidiary conducts business, or (iv) made any other
unlawful bribe, rebate, payoff, influence payment, kickback, or other unlawful payment to any person.
(yy) Statistical
and Market Data. All statistical, demographic and market-related data included in the Registration Statement, the General Disclosure
Package or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and
accurate in all material respects. To the extent required, the Company has obtained the written consent to the use of such data from such
sources.
(zz) Compliance
with Money Laundering Laws. The operations of the Company and the Subsidiary are and have been conducted at all times in compliance
with all applicable financial recordkeeping and reporting requirements, including those of the U.S. Bank Secrecy Act, as amended by Title
III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA
PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and the Subsidiary conduct business,
the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced
by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Subsidiary with respect
to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(aaa) Compliance
with OFAC.
(A) Neither the Company nor the
Subsidiary, nor any director, officer or employee thereof, nor, to the Company’s knowledge, any agent, affiliate, representative
or other person acting on behalf of the Company or the Subsidiary, is an individual or entity (“Person”) that
is, or is owned or controlled by a Person that is: (i) the subject of any economic, financial or trade sanctions administered or
enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations
Security Council (“UNSC”), the European Union (“EU”), His Majesty’s Treasury
(“HMT”), Global Affairs Canada, the Swiss Secretariat of Economic Affairs, or other relevant sanctions authority
(collectively, “Sanctions”), nor (ii) located, organized or resident in a country or territory that is
the subject of a U.S. government or Canadian government embargo (including, without limitation, the so-called Donetsk People’s Republic,
the so-called Luhansk People’s Republic, the Crimea Region of Ukraine, the non-government controlled areas of the Zaporizhzhia and
Kherson Regions, Cuba, Iran, North Korea and Syria).
(B) The
Company 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: (i) to fund or facilitate any activities or business of or with any Person
that, at the time of such funding or facilitation, is the subject of Sanctions, or in any country or territory that, at the time of such
funding or facilitation, is the subject of a U.S. government or Canadian government embargo; or (ii) 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).
(C) For
the past five (5) years, the Company and the Subsidiary have not knowingly engaged in, are not now knowingly engaged in, and will
not engage in, any direct or indirect dealings or transactions with any Person that at the time of the dealing or transaction is or was
the subject of Sanctions or any country or territory that, at the time of the dealing or transaction is or was the subject of a U.S. government
embargo.
(bbb) Export
and Import Laws. Each of the Company and the Subsidiary, and, to the Company’s knowledge, each of their affiliates and any director,
officer, agent or employee of the Company has acted at all times in compliance with applicable Export and Import Laws (as defined below)
applicable to the Company and there are no claims, complaints, charges, investigations or proceedings pending or expected or, to the knowledge
of the Company, threatened between the Company or the Subsidiary and any governmental authority under any Export or Import Laws. The term
“Export and Import Laws” means the Arms Export Control Act, the International Traffic in Arms Regulations, the Export Administration
Act of 1979, as amended, the Export Administration Regulations, and all other laws and regulations of the United States government regulating
the provision of services to non-U.S. parties or the export and import of articles or information from and to the United States of America,
and all similar laws and regulations of any foreign government regulating the provision of services to parties not of the foreign country
or the export and import of articles and information from and to the foreign country to parties not of the foreign country.
(ccc) Submission
to Jurisdiction. The Company has the power to submit, and pursuant to Section 18 of this Agreement, has legally, validly, effectively
and irrevocably submitted, to the personal jurisdiction of the Specified Courts (as defined below), and the Company has the power to designate,
appoint and authorize, and pursuant to Section 18 of this Agreement, has legally, validly, effectively and irrevocably designated,
appointed and authorized an agent for service of process in any action arising out of or relating to this Agreement, the Offered Securities
or the Warrant Shares in any Specified Court, and service of process effected on such authorized agent will be effective to confer valid
personal jurisdiction over the Company as provided in Section 18 hereof.
(ddd) Judgment.
The courts of Canada would recognize as a valid judgment any final monetary judgment obtained against the Company in the courts of the
State of New York.
(eee) Immunity.
Neither the Company nor the Subsidiary nor any of its or their properties or assets has any immunity from the jurisdiction of any court
or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise)
under the federal laws of Canada or the laws of the Province of Québec. The irrevocable and unconditional waiver and agreement
of the Company contained in Section 18 hereof not to plead or claim any such immunity in any legal action, suit or proceeding based
on this Agreement is valid and binding under the federal laws of Canada and the laws of the Province of Québec.
(fff) Choice
of Law. The choice of law of the State of New York as the governing law of this Agreement is a valid choice of law under the laws
of the Province of Québec and will be honored by the courts of Québec. The Company has the power to submit, and pursuant
to Section 18 has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of
the Specified Courts (as defined in Section 18).
Any certificate signed by
or on behalf of the Company and delivered to the Representative or to counsel for the Underwriters shall be deemed to be a representation
and warranty by the Company to each Underwriter as to the matters covered thereby.
3. Purchase,
Sale and Delivery of the Offered Securities. On the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Company agrees to sell to the Underwriters, and the Underwriters agree,
severally and not jointly, to purchase from the Company on the Closing Date the respective numbers Firm Shares and Pre-Funded Warrants
set forth opposite the names of the Underwriters in Schedule A hereto and, in the sole discretion of the Representative, any Optional
Shares on the Option Closing Date.
The net purchase price per
share to be paid by the Underwriters to the Company for the Firm Shares will be $1.41 per share (the “Net Share Purchase Price”),
representing a purchase price per share of $1.50 (the “Share Purchase Price”) net of an underwriting commission
of 6.0% to the public offering price per share) and the purchase price per Pre-Funded Warrant to be paid by the Underwriters to the Company
shall be $1.40906 per Pre-Funded Warrant (the “Net Pre-Funded Warrant Purchase Price”), representing a purchase
price per Pre-Funded Warrant of $1.499 (the “Pre-Funded Warrant Purchase Price”) net of an underwriting commission
of 6.0% to the public offering price per Pre-Funded Warrant). The aggregate Net Share Purchase Price and Net Pre-Funded Warrant Purchase
Price are referred to together as the “Net Purchase Price.”
The Company will deliver (i) the
Firm Shares to the Representative for the respective accounts of the several Underwriters, through the facilities of The Depository Trust
Company, in each such case, issued in such names and in such denominations as the Representative may direct by notice in writing to the
Company given at or prior to 12:00 Noon, New York time, on the second (2nd) full business day preceding the Closing Date and (ii) the
Pre-Funded Warrants in definitive form, registered in such names and in such denominations as the Representative shall request in writing
not later than the Closing Date against payment of the aggregate Net Purchase Price therefor by wire transfer in federal (same day) funds
to an account at a bank specified by the Company payable to the order of the Company for the Firm Securities sold by them at the offices
of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, 0 Xxxxx Xxxxx Xxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, such that the Company
will have received the aggregate Share Purchase Price for the Firm Shares and the aggregate Pre-Funded Warrant Purchase Price for the
Pre-Funded Warrants, net of the underwriting commission payable by the Company to the Underwriters pursuant to this Agreement. The Pre-Funded
Warrants will be made available for inspection by the Representative on the day prior to the Closing Date.
In the event that the Firm
Shares (and any Optional Shares, if elected by the Representative) are not delivered to the Representative by 2:30 p.m., New York time,
on the Closing Date (and on any Option Closing Date, as the case may be), the Company will return (or will instruct its custodian to return)
payment of the full Share Purchase Price for the Firm Shares (and the full Share Purchase Price for the Optional Shares, as the case may
be) to the Representative’s agent, Pershing LLC, via same day funds by 4:30 p.m., New York City time. The Company shall remain liable
to Pershing LLC for the full amount of the Share Purchase Price and any costs associated with recovering the Share Purchase Price until
the full amount has been received by Pershing LLC.
Notwithstanding the foregoing,
the Company and the Representative shall instruct purchasers of the Pre-Funded Warrants in the public offering to make payment for the
Pre-Funded Warrants at price equal to the public offering price of $1.499 per Pre-Funded Warrant on the Closing Date to the Company by
wire transfer in immediately available funds to the account specified by the Company, in lieu of payment by the Underwriters for such
Pre-Funded Warrants, and the Company shall deliver such Pre-Funded Warrants to such purchasers on the Closing Date in definitive form
against such payment, in lieu of the Company’s obligation to deliver such Pre-Funded Warrants to the Underwriters; provided that
the underwriting commission in respect of the Pre-Funded Warrants of 6.0% to the public offering price per Pre-Funded Warrant which amount
is equal to $299,799.97 in the aggregate for the Pre-Funded Warrants, shall be deducted and withheld from the Net Share Purchase Price
otherwise payable by the Representative to the Company for the Firm Shares as set forth above in this Section 3 which constitue payment
of the underwriting commission payable by the Company to the Underwriters pursuant to this Agreement in respect of such Pre-Funded Warrants.
In the event that the purchasers
of the Pre-Funded Warrants in the public offering fail to make payment to the Company for all or part of the Pre-Funded Warrants on the
Closing Date, the Representative may elect, by written notice to the Company, to receive Common Shares in lieu of all or a portion of
such Pre-Funded Warrants to be delivered to the Underwriters under this Agreement.
Time shall be of the essence,
and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligations of each Underwriter
hereunder. The time and date of the delivery and closing shall be at 9:30 A.M., New York time, on March 4, 2024, in accordance with
Rule 15c6-1 of the Exchange Act. The time and date of such payment and delivery are herein referred to as the “Closing Date”.
The Closing Date and the location of delivery of, and the form of payment for, the Firm Shares and the Pre-Funded Warrants may be varied
by agreement among the Company and the Representative.
The Underwriters may purchase
all or less than all of the Optional Shares in one or more closings. The price per share to be paid for the Optional Shares shall be the
Share Purchase Price, net of an underwriting commission of 6.0% to the public offering price per share, which shall be equal to the Net
Share Purchase Price. The Company agrees to sell to the Underwriters the number of Optional Shares specified in the written notice delivered
by the Representative to the Company described below and the Underwriters agree, severally and not jointly, to purchase such Optional
Shares. Such Optional Shares shall be purchased from the Company for the account of each Underwriter in the same proportion as the number
of Firm Securities set forth opposite such Underwriter’s name on Schedule A bears to the total number of Firm Securities
(subject to adjustment by the Representative to eliminate fractions). The option granted hereby may be exercised as to all or any part
of the Optional Shares at any time, and from time to time, provided however, that notice of such exercise must be delivered not more than
thirty (30) days subsequent to the date of this Agreement. No Optional Shares shall be sold and delivered unless the Firm Shares previously
have been, or simultaneously are, sold and delivered. The right to purchase the Optional Shares or any portion thereof may be surrendered
and terminated at any time upon notice by Representative to the Company.
The option granted hereby
shall be exercised by written notice being given to the Company by Representative setting forth the number of Optional Shares to be purchased
by the Underwriters and the date and time for delivery of and payment for the Optional Shares. Each date and time for delivery of and
payment for the Optional Shares (which may be the Closing Date, but not earlier) is herein called the “Option Closing Date”
and shall in no event be earlier than two (2) business day nor later than five (5) business days after written notice is given.
The Option Closing Date and the Closing Date are herein called the “Closing Dates.”
The Company will deliver the
Optional Shares to the Representative for the respective accounts of the several Underwriters through the facilities of The Depository
Trust Company, issued in such names and in such denominations as the Representative may direct by notice in writing to the Company given
at or prior to 2:30 p.m., New York time, on the second (2nd) full business day preceding the Option Closing Date against payment of the
aggregate Share Purchase Price therefor by wire transfer in federal (same day) funds to an account at a bank acceptable to the Representative
payable to the order of the Company. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligations of each Underwriter hereunder. The Option Closing Date and the location of delivery of, and
the form of payment for, the Optional Shares may be varied by agreement among the Company and the Representative.
The several Underwriters propose
to offer the Shares and the Pre-Funded Warrants for sale upon the terms and conditions set forth in the Prospectus.
4. Further
Agreements Of The Company. The Company agrees with the several Underwriters:
(a) Required
Filings; Amendments or Supplements; Notice to the Representative. To prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Representative and file such Rule 462(b) Registration Statement with the Commission by
10:00 P.M., New York time, on the date hereof, and the Company shall at the time of filing either pay to the Commission the filing fee
for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under
the Rules and Regulations; to prepare the Prospectus in a form approved by the Representative containing information previously omitted
at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C of the Rules and Regulations
and to file such Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than the second (2nd)
business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by the Securities
Act; to notify the Representative immediately of the Company’s intention to file or prepare any supplement or amendment to the Registration
Statement or to the Prospectus and to make no amendment or supplement to the Registration Statement, the General Disclosure Package or
to the Prospectus to which the Representative shall reasonably object by notice to the Company after a reasonable period to review; to
advise the Representative, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the General Disclosure Package or the Prospectus or any amended Prospectus or any
Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication has been filed and to furnish the Underwriters with copies
thereof; to file promptly all material required to be filed by the Company with the Commission pursuant to Rules 433(d) or 163(b)(2) of
the Rules and Regulations, as the case may be; to file promptly all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent
to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of
the Rules and Regulations) is required in connection with the offering or sale of the Offered Securities; to advise the Representative,
promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending
the use of the Base Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus or any Written Testing-the-Waters
Communication, of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration
Statement, the General Disclosure Package, any Preliminary Prospectus or the Prospectus or for additional information including, but not
limited to, any request for information concerning any Testing-the-Waters Communication; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of the Base Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus
or the Prospectus or suspending any such qualification, and promptly to use its best efforts to obtain the withdrawal of such order.
(b) Emerging
Growth Company. The Company will promptly notify the Representative if the Company ceases to be an Emerging Growth Company at any
time prior to the later of (a) the completion of the distribution of the Offered Securities within the meaning of the Securities
Act and (b) completion of the Lock-Up Period (as defined below).
If at any time following the distribution
of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters
Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company
will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication
to eliminate or correct such untrue statement or omission.
(c) Permitted
Free Writing Prospectus. The Company represents and agrees that, unless it obtains the prior consent of the Representative, and each
Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representative, it has not made and
will not, other than the final term sheet prepared and filed pursuant to Section 4(d) hereof, make any offer relating to the
Offered Securities that would constitute a “free writing prospectus” as defined in Rule 405 of the Rules and Regulations
unless the prior written consent of the Representative has been received (each, a “Permitted Free Writing Prospectus”);
provided that the prior written consent of the Representative hereto shall be deemed to have been given in respect of the Issuer
Free Writing Prospectus included in Schedule B hereto. The Company represents that it has treated and agrees that it will treat
each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, comply with the requirements of Rules 164 and 433 of
the Rules and Regulations applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing
with the Commission, legending and record keeping and will not take any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) of the Rules and Regulations a free writing prospectus prepared
by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder.
(d) Ongoing
Compliance. If at any time prior to the date when a prospectus relating to the Offered Securities is required to be delivered (or
in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) any event occurs or condition exists as a result
of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact, or omit to state any material
fact necessary to make the statements therein, in light of the circumstances under which they were made when the Prospectus is delivered
(or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations), not misleading, or if it is necessary
at any time to amend or supplement the Registration Statement or the Prospectus— or to file under the Exchange Act any document
incorporated by reference in the Prospectus to comply with the Securities Act or the Exchange Act, that the Company will promptly notify
the Representative thereof and upon their request will prepare an appropriate amendment or supplement or upon their request make an appropriate
filing pursuant to Section 13 or 14 of the Exchange Act in form and substance satisfactory to the Representative which will correct
such statement or omission or effect such compliance and will use its reasonable best efforts to have any amendment to the Registration
Statement declared effective as soon as possible. The Company will furnish without charge to each Underwriter and to any dealer in securities
as many copies as the Representative may from time to time reasonably request of such amendment or supplement. In case any Underwriter
is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations)
relating to the Offer Securities, the Company upon the request of the Representative, and at the expense of the Representative, will prepare
promptly an amended or supplemented Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of
the Securities Act and deliver to such Underwriter as many copies as such Underwriter may request of such amended or supplemented Prospectus
complying with Section 10(a)(3) of the Securities Act.
(e) Amendment
to General Disclosure Package. If the General Disclosure Package is being used to solicit offers to buy the Offered Securities at
a time when the Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the judgment
of the Company or in the reasonable opinion of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package
in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, or to make the statements
therein not conflict with the information contained or incorporated by reference in the Registration Statement then on file and not superseded
or modified, or if it is necessary at any time to amend or supplement the General Disclosure Package to comply with any law, the Company
promptly will either (i) prepare, file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate
amendment or supplement to the General Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under
the Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as
so amended or supplemented will not, in the light of the circumstances then prevailing, be misleading or conflict with the Registration
Statement then on file, or so that the General Disclosure Package will comply with law.
(f) Amendment
to Issuer Free Writing Prospectus. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs
an event or development as a result of which such Issuer Free Writing Prospectus conflicted or will conflict with the information contained
in the Registration Statement, Pricing Prospectus or Prospectus, including any document incorporated by reference therein and any prospectus
supplement deemed to be a part thereof and not superseded or modified or included or would include an untrue statement of a material fact
or omitted or would omit to state a material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances prevailing at the subsequent time, not misleading, the Company has promptly notified or will promptly
notify the Representative so that any use of the Issuer Free Writing Prospectus may cease until it is amended or supplemented and has
promptly amended or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission. The foregoing sentence does not apply to statements in or omissions from any Issuer Free
Writing Prospectus in reliance upon, and in conformity with, written information furnished to the Company through the Representative by
or on behalf of any Underwriter specifically for inclusion therein, which information the parties hereto agree is limited to the Underwriter’s
Information.
(g) Delivery
of Registration Statement. To the extent not available on the Commission’s Electronic Data Gathering, Analysis and Retrieval
system or any successor system (“XXXXX”), upon the request of the Representative, to furnish promptly to the
Representative and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission,
and of each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(h) Delivery
of Copies. Upon request of the Representative, to the extent not available on XXXXX, to deliver promptly to the Representative in
New York City such number of the following documents as the Representative shall reasonably request: (i) conformed copies of the
Registration Statement as originally filed with the Commission (in each case excluding exhibits), (ii) the Base Prospectus, (iii) each
Preliminary Prospectus, (iv) any Issuer Free Writing Prospectus, (v) the Prospectus (the delivery of the documents referred
to in clauses (i), (ii), (iii), (iv) and (v) of this paragraph (h) to be made not later than 10:00 A.M., New York time,
on the business day following the execution and delivery of this Agreement), (v) conformed copies of any amendment to the Registration
Statement (excluding exhibits), (vi) any amendment or supplement to the General Disclosure Package or the Prospectus (the delivery
of the documents referred to in clauses (v) and (vi) of this paragraph (h) to be made not later than 10:00 A.M., New York
City time, on the business day following the date of such amendment or supplement) and (vii) any document incorporated by reference
in the General Disclosure Package or the Prospectus (excluding exhibits thereto) (the delivery of the documents referred to in clause
(vii) of this paragraph (h) to be made not later than 10:00 A.M., New York City time, on the business day following the date
of such document).
(i) Earnings
Statement. To make generally available to its shareholders as soon as practicable, but in any event not later than sixteen (16) months
after the effective date of the Registration Statement (as defined in Rule 158(c) of the Rules and Regulations), an earnings
statement of the Company and the Subsidiary (which need not be audited) complying with Section 11(a) of the Securities Act (including,
at the option of the Company, Rule 158).
(j) Blue
Sky Compliance. To take promptly from time to time such actions as the Representative may reasonably request to qualify the Offered
Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions (domestic or foreign) as the Representative
may reasonably designate and to continue such qualifications in effect, and to comply with such laws, for so long as required to permit
the offer and sale of Offered Securities in such jurisdictions; provided that the Company and the Subsidiary shall not be obligated
to (i) qualify as foreign corporations in any jurisdiction in which they are not so qualified, (ii) file a general consent to
service of process in any jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(k) Reports.
Upon request, during the period of five (5) years from the date hereof, to deliver to each of the Underwriters, (i) as soon
as they are available, copies of all reports or other communications (financial or other) furnished to shareholders, and (ii) as
soon as they are available, copies of any reports and financial statements furnished or filed with the Commission or any national securities
exchange on which the Common Shares are listed. However, so long as the Company is subject to the reporting requirements of either Section 13
or Section 15(d) of the Exchange Act and is timely filing reports with XXXXX, it is not required to furnish such reports or
statements to the Underwriters.
(l) Lock-Up.
During the period commencing on and including the date hereof and ending on and including the 90th day following the date of this Agreement,
(the “Lock-Up Period”) the Company will not, without the prior written consent of the Representative (which
consent may be withheld at the sole discretion of the Representative), directly or indirectly offer, sell (including, without limitation,
any short sale), assign, transfer, pledge, contract to sell, establish an open “put equivalent position” within the meaning
of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of, or announce the offering of, or submit or file any registration
statement under the Securities Act in respect of, any Common Shares, options, rights or warrants to acquire Common Shares or securities
exchangeable or exercisable for or convertible into Common Shares (other than is contemplated by this Agreement with respect to the Offered
Securities) or publicly announce any intention to do any of the foregoing; provided, however, that the Company may (i) effect
the transactions contemplated hereby, (ii) issue Common Shares or options to purchase Common Shares, or issue Common Shares upon
exercise of options, pursuant to any stock option, stock bonus or other stock plan or arrangement described in the Registration Statement,
the General Disclosure Package and the Prospectus (ii) file one or more registration statements on Form S-8 and (iii) offer,
issue and sell Common Shares or any securities convertible into, or exercisable, or exchangeable for, Common Shares in connection with
any merger, acquisition or strategic investment (including any joint venture, strategic alliance or partnership) as long as (x) the
aggregate number of Common Shares issued or issuable does not exceed 5.0% of the number of Common Shares outstanding immediately after
the issuance and sale and (y) each recipient of any such Common Shares issued or issuable agrees to the restrictions on the resale
of securities that are consistent with those set forth in the form of “lock-up” agreement attached hereto as Exhibit A
for the remainder of the Lock-Up Period. The Company will cause each person and entity listed in Schedule D to furnish to the Representative,
prior to the Closing Date, a “lock-up” agreement, substantially in the form of Exhibit A hereto. In addition,
the Company will direct the transfer agent to place stop transfer restrictions upon any such securities of the Company that are bound
by such “lock-up” agreements.
(m) Delivery
of SEC Correspondence. To supply the Underwriters with copies of all correspondence to and from, and all documents issued to and by,
the Commission in connection with the registration of the Offered Securities under the Securities Act or any of the Registration Statement,
the Base Prospectus, any Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto or document incorporated by
reference therein.
(n) Press
Releases. Prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press
conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except
for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company and
of which the Representative is notified), without the prior consent of the Representative, unless in the judgment of the Company and its
counsel, and after notification to the Representative, such press release or communication is required by law.
(o) Compliance
with Regulation M. Until the Underwriters shall have notified the Company of the completion of the resale of the Offered Securities,
that the Company will not, and will use its reasonable best efforts to cause its affiliated purchasers (as defined in Regulation M under
the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its
affiliated purchasers has a beneficial interest, any Offered Securities, or attempt to induce any person to purchase any Offered Securities;
and not to, and to use its reasonable best efforts to cause its affiliated purchasers not to, make bids or purchase for the purpose of
creating actual, or apparent, active trading in or of raising the price of the Offered Securities.
(p) Registrar,
Transfer Agent and Warrant Agent. To maintain, at its expense, a registrar and transfer agent for the Shares and a Warrant Agent,
which may be the Company, for the Pre-Funded Warrants.
(q) Use
of Proceeds. To apply the net proceeds from the sale of the Offered Securities as set forth in the Registration Statement, the General
Disclosure Package and the Prospectus under the heading “Use of Proceeds,” and except as disclosed in the General Disclosure
Package, the Company does not intend to use any of the proceeds from the sale of the Offered Securities hereunder to repay any outstanding
debt owed to any affiliate of any Underwriter.
(r) Exchange
Listing. To use its reasonable best efforts to list for quotation the Shares and the Warrant Shares on the Nasdaq Market.
(s) Performance
of Covenants and Satisfaction of Conditions. To use its reasonable best efforts to do and perform all things required to be done or
performed under this Agreement by the Company prior to the Closing Date and Option Closing Date, as the case may be, and to satisfy all
conditions precedent to the delivery of the Offered Securities.
(t) Stamp
Duty. The Company will indemnify and hold harmless the Underwriters against any stamp, registration, documentary or other similar
taxes or duties imposed under any laws that is payable in connection with (i) the execution, delivery, consummation or enforcement
of this Agreement, (ii) the creation, allotment and issuance of the Offered Securities, (iii) the sale and delivery of the Offered
Securities to the Underwriters or purchasers procured by the Underwriters, or (iv) the resale and delivery of the Offered Securities
by the Underwriters to U.S. residents in the manner contemplated herein.
(u) Withholding
Taxes. All sums payable by the Company or the Subsidiary under this Agreement shall be paid free and clear of and without deductions
or withholdings of any present or future taxes or duties, unless the deduction or withholding is required by law, in which case the Company
or the Subsidiary, as applicable, shall pay, except where the tax or duty so deducted or withheld arises in respect of services rendered
in Canada or the United States, such additional amount as will result in the recipient receiving the full amount that would have been
received had no deduction or withholding been made.
(v) Sales
Taxes. All sums payable to an Underwriter pursuant to this Agreement (including, for the avoidance of doubt, any underwriting commission
treated as a fee or other amount subject to tax) shall be considered exclusive of any value added or similar taxes. Where any value added,
sales or similar taxes are imposed on any amount payable hereunder by the Company to an Underwriter, the Company shall, in addition to
the sum payable hereunder, pay an additional amount equal to any and all such value added, sales or similar taxes to such Underwriter.
(w) Registration
of Warrant Shares. The Company shall, at all times while the Company is subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act and any Warrants are outstanding, use its best efforts to maintain a registration statement covering the
exercise of the Pre-Funded Warrants and the issue and sale of the Warrant Shares such that the Warrant Shares, when issued, will not be
subject to resale restrictions under the Securities Act except to the extent that the Warrant Shares are owned by affiliates.
(x) Reservation
of Warrant Shares. The Company shall, at all times while any Pre-Funded Warrants are outstanding, reserve and keep available out of
the aggregate of its authorized but unissued and otherwise unreserved Common Shares, solely for the purpose of enabling it to issue Warrant
Shares upon exercise of such warrants, the number of Warrant Shares that are initially issuable and deliverable upon the exercise of the
then-outstanding Pre-Funded Warrants.
The Representative, on behalf of the several Underwriters,
may, in its sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the
time for their performance.
5. Payment
of Expenses. The Company agrees to pay, or reimburse if paid by any Underwriter, whether or not the transactions contemplated
hereby are consummated or this Agreement is terminated: (a) the costs incident to the authorization, issuance, sale, preparation
and delivery of the Offered Securities and any taxes payable in that connection; (b) the costs incident to the registration of the
Offered Securities and Warrant Shares under the Securities Act; (c) the costs incident to the preparation, printing and distribution
of the Registration Statement, the Base Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the General Disclosure
Package, the Prospectus, any amendments, supplements and exhibits thereto or any document incorporated by reference therein and the costs
of printing, reproducing and distributing this Agreement and any closing documents by mail, telex or other means of communications; (d) the
fees and expenses incurred in connection with securing any required review by FINRA of the terms of the sale of the Offered Securities
and any filings made with FINRA (up to a maximum aggregate amount of $25,000); (e) any applicable listing or other fees; (f) all
or any part of the shares for offer and sale under the state securities or blue sky laws or the provincial securities laws of Canada,
and, if requested by the Representative, preparing and printing a “Blue Sky Survey” or memorandum and a “Canadian wrapper”,
and any supplements thereto, advising the Underwriters of such qualifications, registrations and exemptions (up to a maximum aggregate
amount of $10,000, provided, however, that if applicable, any Canadian post trade filing fees for Form 45-106F1 shall be paid by
the Company and will not be subject to such $10,000 limit); (g) the cost of preparing and printing share certificates; (h) all
fees and expenses of the registrar and transfer agent of the Shares and the warrant agent for the Pre-Funded Warrants, if applicable;
(j) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection
with the marketing of the offering of the Offered Securities, including, without limitation, expenses associated with the preparation
or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses
of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses
of the officers of the Company and such consultants; (k) all other costs and expenses incident to the offering of the Offered Securities
or the performance of the obligations of the under this Agreement (including, without limitation, the fees and expenses of the Company’s
counsel and the Company’s independent accountants); and (l) the fees and expenses of counsel for the Underwriters; provided
that, except to the extent otherwise provided in this Section 5 and in Sections 9 and 10, the Underwriters shall pay their own costs
and expenses, including the fees and expenses of their counsel not contemplated herein, any transfer taxes on the resale of any Offered
Securities by them and the expenses of advertising any offering of the Offered Securities made by the Underwriters; provided, further,
that the costs and expenses reimbursable pursuant to this Section 5 shall not exceed $150,000 in the aggregate without the Company’s
prior written consent.
6. Conditions
of Underwriters’ Obligations. The respective obligations of the several Underwriters hereunder are subject to the accuracy,
when made and as of the Applicable Time and on the applicable Closing Date, of the representations and warranties of the Company contained
herein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) Registration
Compliance; No Stop Orders. The Registration Statement has become effective under the Securities Act, and no stop order suspending
the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of the Base Prospectus, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for
that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or threatened by the Commission, and all
requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement
or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative; the Rule 462(b) Registration
Statement, if any, each Issuer Free Writing Prospectus and the Prospectus shall have been filed with, the Commission within the applicable
time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a),
and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission;
and FINRA shall have raised no unresolved objection to the fairness and reasonableness of the terms of this Agreement or the transactions
contemplated hereby.
(b) No
Material Misstatements. None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date
or the Option Closing Date, as the case may be, that the Registration Statement or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion
of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that
the General Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto contains an
untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel,
is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading.
(c) Corporate
Proceedings. All corporate proceedings incident to the authorization, form and validity of each of this Agreement, the Offered Securities,
the Warrant Shares the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus
and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and
the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass
upon such matters.
(d) Section 12
Authorization. Any order or notice of approval granted or otherwise issued by the AMF under Section 12 of the Québec Securities
Act shall remain in full force and effect or the Company shall be entitled to rely on the non-objection of the AMF within the time period
prescribed by Section 12 of the Québec Securities Act to make sales of the Offered Securities to persons established outside
the Province of Québec, Canada.
(e) Opinions
and Negative Assurance Letters of Counsels for the Company. (i) Xxxxxx LLP shall have furnished to the Representative
its written opinion and negative assurance letter, as U.S. counsel to the Company and (ii) and Xxxxx, Xxxxxx & Harcourt
LLP shall have furnished to the Representative its written opinion, as Canadian counsel to the Company, in each case addressed to the
Underwriters and dated the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory
to the Representative.
(f) Opinion
and Negative Assurance Letter of Intellectual Property Counsel for the Company. Xxxxx & Xxxxxx LLP shall have furnished to
the Representative such counsel’s written opinion, as intellectual property counsel to the Company, addressed to the Underwriters
and dated the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Representative.
(g) Opinions
and Negative Assurance Letters of Counsels for the Underwriters. The Representative shall have received from Xxxxxx Xxxxxx Xxxxxxxxx
Xxxx and Xxxx LLP, U.S. counsel to the Underwriters, such opinion and negative assurance letter, dated the Closing Date or the Option
Closing Date, as the case may be, with respect to such matters as the Underwriters may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(h) Comfort
Letter. At the time of the execution of this Agreement, the Representative shall have received from PricewaterhouseCoopers LLP a letter,
addressed to the Underwriters, executed and dated such date, in form and substance satisfactory to the Representative (i) confirming
that they are an independent registered accounting firm with respect to the Company and the Subsidiary within the meaning of the Securities
Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, of the type ordinarily
included in accountants’ “comfort letters” to underwriters, with respect to the financial statements and certain financial
information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus.
(i) Bring
Down Comfort. On the effective date of any post-effective amendment to the Registration Statement and on the Closing Date or the Option
Closing Date, as the case may be, the Representative shall have received a letter (the “bring-down letter”)
from PricewaterhouseCoopers LLP addressed to the Underwriters and dated the Closing Date or the Option Closing Date, as the case may be,
confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the General Disclosure Package and the Prospectus, as the case may be),
the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters,
with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the
execution of this Agreement pursuant to paragraph (h) of this Section 6.
(j) Officer’s
Certificate. The Company shall have furnished to the Representative a certificate, dated the Closing Date or the Option Closing Date,
as the case may be, of its Chief Executive Officer or its Chief Financial Officer stating in his or her capacity as officer of the Company
on behalf of the Company that (i) no stop order suspending the effectiveness of the Registration Statement (including, for avoidance
of doubt, any Rule 462(b) Registration Statement), or any post-effective amendment thereto, shall be in effect and no proceedings
for such purpose shall have been instituted or, to their knowledge, threatened by the Commission, (ii) for the period from and including
the date of this Agreement through and including the Closing Date or the Option Closing Date, as the case may be, there has not occurred
any Material Adverse Effect, (iii) to his or her knowledge, after reasonable investigation, as of the Closing Date or the Option
Closing Date, as the case may be, the representations and warranties of the Company in this Agreement are true and correct and the Company
has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing
Date or the Option Closing Date, as the case may be, and (iv) there has not been, subsequent to the date of the most recent audited
financial statements included or incorporated by reference in the General Disclosure Package, any Material Adverse Effect in the financial
position or results of operations of the Company, or any change or development that, singularly or in the aggregate, would reasonably
be expected to involve a Material Adverse Effect, except as set forth in the General Disclosure Package and the Prospectus.
(k) No
Material Adverse Effect. Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated
by reference in the General Disclosure Package as of the date hereof, (i) neither the Company nor its Subsidiary shall have sustained
any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the General Disclosure Package, and
(ii) there shall not have been any change in the capital stock or long-term debt of the Company or its Subsidiary, or any change,
or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, shareholders’
equity or results of operations of the Company and its Subsidiary, otherwise than as set forth in the General Disclosure Package, the
effect of which, in any such case described in clause (i) or (ii) of this paragraph (k), is, in the judgment of the Representative,
so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Offered Securities on the
terms and in the manner contemplated in the General Disclosure Package.
(l) No
Legal Impediment to Issuance. No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted,
adopted or issued by any governmental or regulatory agency or body which would prevent the issuance or sale of the Offered Securities;
and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been
issued which would prevent the issuance or sale of the Offered Securities.
(m) No
Downgrade. Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the Company’s
corporate credit rating, if any, or the rating accorded the Company’s debt securities by any “nationally recognized statistical
rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations,
if any, and (ii) no such organization shall have publicly announced that it has under surveillance or review (other than an announcement
with positive implications of a possible upgrading), the Company’s corporate credit rating or the rating, if any, of any of the
Company’s debt securities, if any.
(n) Market
Conditions. Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading
in any of the Company’s securities shall have been suspended or materially limited by the Commission or the Exchange, or trading
in securities generally on the New York Stock Exchange, Nasdaq Global Select Market, Nasdaq Global Market, Nasdaq Capital Market or the
NYSE MKT LLC or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established
on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been declared by Federal, state or provincial authorities or a material
disruption has occurred in commercial banking or securities settlement or clearance services in the United States or Canada, (iii) the
United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of
or escalation in hostilities involving the United States or Canada, or there shall have been a declaration of a national emergency or
war by the United States or Canada or (iv) there shall have occurred such a material adverse change in general economic, political
or financial conditions (or the effect of international conditions on the financial markets in the United States or Canada shall be such)
as to make it, in the judgment of the Representative, impracticable or inadvisable to proceed with the sale or delivery of the Offered
Securities on the terms and in the manner contemplated in the General Disclosure Package and the Prospectus.
(o) Exchange
Listing. Prior to the Closing Date, the Company shall have filed a and shall have not received any notice objecting to the listing
of the Shares and the Warrant Shares from Nasdaq.
(p) Good
Standing. The Representative shall have received on and as of the Closing Date or the Option Closing Date, as the case may be, satisfactory
evidence of the good standing of the Company and its Subsidiary in their respective jurisdictions of organization and their good standing
as foreign entities in such other jurisdictions as the Representative may reasonably request, in each case in writing or any standard
form of telecommunication from the appropriate Governmental Authorities of such jurisdictions.
(q) Lock
Up Agreements. The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto,
of the officers and directors of the Company listed in Schedule D to this Agreement.
(r) Secretary’s
Certificate. The Company shall have furnished to the Representative a Secretary’s Certificate of the Company, dated as of the
Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to counsel for the Underwriters
and customary for the type of offering contemplated by this Agreement.
(s) Chief
Financial Officer Certificate. On the date hereof and on the Closing Date or the Option Closing Date, as the case may be, the Company
shall have furnished to the Representative a certificate of its Chief Financial Officer, dated as of the date of delivery, providing officer
comfort with respect to certain financial information contained or incorporated by reference in the Registration Statement, the General
Disclosure Package and the Prospectus, in form and substance reasonably acceptable the Representative.
(t) Form of
Pre-Funded Warrant. The Representative shall have received a form of Pre-Funded Warrant in form and substance reasonably acceptable
to it prior to the Closing Date.
(u) Additional
Document. On or prior to the Closing Date or the Option Closing Date, as the case may be, the Company shall have furnished to the
Representative such further certificates and documents as the Representative may reasonably request.
All opinions, letters, evidence
and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if
they are in form and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification
and Contribution.
(a) Indemnification
of Underwriters by the Company. The Company shall indemnify and hold harmless: each Underwriter, its affiliates, directors, officers,
managers, members, employees and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (collectively the “Underwriter Indemnified Parties,” and each an
“Underwriter Indemnified Party”) against any loss, claim, damage, expense or liability whatsoever (or any action,
investigation or proceeding in respect thereof), joint or several, to which such Underwriter Indemnified Party may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation or proceeding arises out
of or is based upon (A) any untrue statement or alleged untrue statement of a material fact contained in any Written Testing-the-Waters
Communication, the Base Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus, any “issuer information”
filed or required to be filed pursuant to Rule 433(d) of the Rules and Regulations, the Registration Statement, the Prospectus,
or in any amendment or supplement thereto or document incorporated by reference therein or in any materials or information provided to
investors by, or with the approval of, the Company in connection with the marketing of the offering of the Offered Securities, including
any roadshow or investor presentations made to investors by the Company (whether in person or electronically) (“Marketing
Materials”) or (B) the omission or alleged omission to state in any Written Testing-the-Waters Communication, the Base
Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or required to
be filed pursuant to Rule 433(d) of the Rules and Regulations, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto or document incorporated by reference therein, or in any Marketing Materials, a material fact required
to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading,
and shall reimburse each Underwriter Indemnified Party promptly upon demand for any legal fees or other expenses reasonably incurred by
that Underwriter Indemnified Party in connection with investigating, or preparing to defend, or defending against, or appearing as a third
party witness in respect of, or otherwise incurred in connection with, any such loss, claim, damage, expense, liability, action, investigation
or proceeding, as such fees and expenses are incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, expense or liability arises out of or is based upon an untrue statement or alleged
untrue statement in, or omission or alleged omission from any Preliminary Prospectus, the Base Prospectus, the Registration Statement
or the Prospectus, or any such amendment or supplement thereto, any Issuer Free Writing Prospectus or any Marketing Materials made in
reliance upon and in conformity with written information furnished to the Company through the Representative by or on behalf of any Underwriter
specifically for use therein, which information the parties hereto agree is limited to the Underwriter’s Information.
The indemnity agreement in this Section 7(a) is
not exclusive and is in addition to each other liability which the Company might have under this Agreement or otherwise, and shall not
limit any rights or remedies which may otherwise be available under this Agreement, at law or in equity to any Underwriter Indemnified
Party.
(b) Indemnification
of Company by the Underwriters. Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company and its
directors, its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively the “Company Indemnified Parties”
and each a “Company Indemnified Party”) against any loss, claim, damage, expense or liability whatsoever (or
any action, investigation or proceeding in respect thereof), joint or several, to which such Company Indemnified Party may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation or proceeding arises
out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus,
the Base Prospectus, any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to
Rule 433(d) of the Rules and Regulations, the Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or (ii) the omission or alleged omission to state in any Preliminary Prospectus, the Base Prospectus, any Issuer Free Writing
Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) of the Rules and
Regulations, the Registration Statement or the Prospectus, or in any amendment or supplement thereto, a material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, but in each
case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Company through the Representative by or on behalf of that Underwriter specifically
for use therein, which information the parties hereto agree is limited to the Underwriter’s Information, and shall reimburse the
Company Indemnified Parties for any legal or other expenses reasonably incurred by such party in connection with investigating or preparing
to defend or defending against or appearing as third party witness in connection with any such loss, claim, damage, liability, action,
investigation or proceeding, as such fees and expenses are incurred. This indemnity agreement is not exclusive and will be in addition
to any liability which the Underwriters might otherwise have and shall not limit any rights or remedies which may otherwise be available
under this Agreement, at law or in equity to the Company Indemnified Parties.
Promptly after receipt by an indemnified
party under this Section 7 of notice of the commencement of any action, the indemnified party shall, if a claim in respect thereof
is to be made against an indemnifying party under this Section 7, notify such indemnifying party in writing of the commencement of
that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability which
it may have under this Section 7 except to the extent it has been materially prejudiced by such failure; and, provided, further,
that the failure to notify an indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise
than under this Section 7. If any such action shall be brought against an indemnified party, and it shall notify the indemnifying
party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense of such action with counsel reasonably satisfactory to the indemnified party
(which counsel shall not, except with the written consent of the indemnified party, be counsel to the indemnifying party). After notice
from the indemnifying party to the indemnified party of its election to assume the defense of such action, except as provided herein,
the indemnifying party shall not be liable to the indemnified party under Section 7 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense of such action other than reasonable costs of investigation; provided,
however, that any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense
of such action but the fees and expenses of such counsel (other than reasonable costs of investigation) shall be at the expense of such
indemnified party unless (i) the employment thereof has been specifically authorized in writing by the Company in the case of a claim
for indemnification under Section 7(a) or the Representative in the case of a claim for indemnification under Section 7(b),
(ii) such indemnified party shall have been advised by its counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to the indemnifying party or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the indemnified party within a reasonable period of time after
notice of the commencement of the action or the indemnifying party does not diligently defend the action after assumption of the defense,
in which case, if such indemnified party notifies the indemnifying party in writing that it elects to employ separate counsel at the expense
of the indemnifying party, the indemnifying party shall not have the right to assume the defense of (or, in the case of a failure to diligently
defend the action after assumption of the defense, to continue to defend) such action on behalf of such indemnified party and the indemnifying
party shall be responsible for legal or other expenses subsequently incurred by such indemnified party in connection with the defense
of such action; provided, however, that the indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for all such indemnified parties (in
addition to any local counsel), which firm shall be designated in writing by the Representative if the indemnified parties under this
Section 7 consist of any Underwriter Indemnified Party or by the Company if the indemnified parties under this Section 7 consist
of any Company Indemnified Parties. Subject to this Section 7(c), the amount payable by an indemnifying party under Section 7
shall include, but not be limited to, (x) reasonable and documented legal fees and expenses of counsel to the indemnified party and
any other expenses in investigating, or preparing to defend or defending against, or appearing as a third party witness in respect of,
or otherwise incurred in connection with, any action, investigation, proceeding or claim, and (y) all amounts paid in settlement
of any of the foregoing. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise
or consent to the entry of judgment with respect to any pending or threatened action or any claim whatsoever, in respect of which indemnification
or contribution could be sought under this Section 7 (whether or not the indemnified parties are actual or potential parties thereto),
unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party in form and substance
reasonably satisfactory to such indemnified party from all liability arising out of such action or claim and (ii) 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. Subject to the provisions
of the following sentence, no indemnifying party shall be liable for settlement of any pending or threatened action or any claim whatsoever
that is effected without its written consent (which consent shall not be unreasonably withheld or delayed), but if settled with its written
consent, if its consent has been unreasonably withheld or delayed or if there be a judgment for the plaintiff in any such matter, the
indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such
settlement or judgment. In addition, if at any time an indemnified party shall have requested that an indemnifying party reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature
contemplated by Section 7(a) effected without its written consent if (i) such settlement is entered into more than sixty
(60) days after receipt by such indemnifying party of the request for reimbursement, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least thirty (30) days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(c) If
the indemnification provided for in this Section 7 is unavailable or insufficient to hold harmless an indemnified party under Section 7(a) or
7(b), then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid, payable or otherwise
incurred by such indemnified party as a result of such loss, claim, damage, expense or liability (or any action, investigation or proceeding
in respect thereof), as incurred, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from the offering of the Offered Securities, or (ii) if the allocation
provided by clause (i) of this Section 7(d) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) of this Section 7(d) but also the relative fault of the
Company on the one hand and the Underwriters on the other with respect to the statements, omissions, acts or failures to act which resulted
in such loss, claim, damage, expense or liability (or any action, investigation or proceeding in respect thereof) as well as any other
relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other with
respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Offered Securities
purchased under this Agreement (before deducting expenses) received by the Company bear to the total underwriting commissions received
by the Underwriters with respect to the Offered Securities purchased under this Agreement, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company on the one hand and the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other, the intent of
the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement, omission,
act or failure to act; provided that the parties hereto agree that the written information furnished to the Company through the
Representative by or on behalf of the Underwriters for use in any Preliminary Prospectus, the Registration Statement or the Prospectus,
or in any amendment or supplement thereto, consists solely of the Underwriter’s Information.
(d) The
Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to Section 7(d) above were
to be determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations
referred to Section 7(d) above. The amount paid or payable by an indemnified party as a result of the loss, claim, damage, expense,
liability, action, investigation or proceeding referred to in Section 7(d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating,
preparing to defend or defending against or appearing as a third party witness in respect of, or otherwise incurred in connection with,
any such loss, claim, damage, expense, liability, action, investigation or proceeding. Notwithstanding the provisions of this Section 7,
no Underwriters shall be required to contribute any amount in excess of the amount by which the total underwriting commissions received
by such Underwriter with respect to the offering of the Offered Securities exceeds the amount of any damages which the Underwriter has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement, omission or alleged omission, act or alleged
act or failure to act or alleged failure to act. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’
obligations to contribute as provided in this Section 7 are several in proportion to their respective underwriting obligations and
not joint.
8. Termination.
The obligations of the Underwriters hereunder may be terminated by the Representative, in its absolute discretion by notice given to the
Company prior to delivery of and payment for the Offer Securities if, prior to that time, any of the events described in Sections 6(j),
6(l) or 6(m) have occurred or if the Underwriters shall decline to purchase the Offered Securities for any reason permitted
under this Agreement.
9. Reimbursement
of Underwriters’ Expenses. Notwithstanding anything to the contrary in this Agreement, if (a) this Agreement shall
have been terminated pursuant to Section 8 or 10, (b) the Company shall fail to tender the Offered Securities for delivery to
the Underwriters for any reason not permitted under this Agreement, (c) the Underwriters shall decline to purchase the Offered Securities
for any reason permitted under this Agreement or (d) the sale of the Offered Securities is not consummated because any condition
to the obligations of the Underwriters set forth herein is not satisfied or because of the refusal, inability or failure on the part of
the Company to perform any agreement herein or to satisfy any condition or to comply with the provisions hereof, then in addition to the
payment of amounts in accordance with Section 5, the Company shall reimburse the Underwriters for the fees and expenses of Underwriters’
counsel and for such other out-of-pocket expenses as shall have been reasonably incurred by them in connection with this Agreement and
the proposed purchase of the Offered Securities, including, without limitation, travel and lodging expenses of the Underwriters, and upon
demand the Company shall pay the full amount thereof to the Representative; provided that if this Agreement is terminated pursuant
to Section 10 by reason of the default of one or more Underwriters, the Company shall not be obligated to reimburse any defaulting
Underwriter on account of expenses to the extent incurred by such defaulting Underwriter, provided further that the foregoing shall
not limit any reimbursement obligation of the Company to any non-defaulting Underwriter under this Section 9.
10. Substitution
of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase the Shares hereunder
on the Closing Date or the Option Closing Date, as the case may be, and the aggregate number of shares which such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of Shares to be purchased by all Underwriters
on the Closing Date or the Option Closing Date, as the case may be, the other Underwriters shall be obligated severally, in proportion
to their respective commitments hereunder, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed
to purchase on the Closing Date or the Option Closing Date, as the case may be. If any Underwriter or Underwriters shall so default and
the aggregate number of Shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number
of Shares to be purchased by all Underwriters on the Closing Dates or the Option Closing Date, as the case may be, and arrangements satisfactory
to the Representative and the Company for the purchase of such Shares by other persons are not made within forty-eight (48) hours after
such default, this Agreement shall terminate.
If the remaining Underwriters
or substituted Underwriters are required hereby or agree to take up all or part of the Shares of a defaulting Underwriter or Underwriters
on the Closing Date or the Option Closing Date, as the case may be, as provided in this Section 10, (i) the Company shall have
the right to postpone the Closing Date or the Option Closing Date, as the case may be, for a period of not more than five (5) full
business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement
or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by
the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of
this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters
for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability
on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements
and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections
5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force
and effect.
11. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) each
Underwriter’s responsibility to the Company is solely contractual in nature, the Representative has been retained solely to act
as underwriters in connection with the sale of the Offered Securities and no fiduciary, advisory or agency relationship between the Company
and the Representative has been created in respect of any of the transactions contemplated by this Agreement, irrespective of whether
the Representative has advised or is advising the Company on other matters;
(b) the
price of the Shares and Pre-Funded Warrants set forth in this Agreement was established by the Company following discussions and arms-length
negotiations with the Representative, and the Company is capable of evaluating and understanding, and understands and accepts, the terms,
risks and conditions of the transactions contemplated by this Agreement;
(c) it
has been advised that the Representative and its affiliates are engaged in a broad range of transactions which may involve interests that
differ from those of the Company and that the Representative has no obligation to disclose such interests and transactions to the by virtue
of any fiduciary, advisory or agency relationship; and
(d) it
waives, to the fullest extent permitted by law, any claims it may have against the Representative for breach of fiduciary duty or alleged
breach of fiduciary duty and agrees that the Representative shall have no liability (whether direct or indirect) to the Company in respect
of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including shareholders,
employees or creditors of the Company.
12. Successors;
Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the several Underwriters,
the Company and their respective successors and assigns. Nothing expressed or mentioned in this Agreement is intended or shall be construed
to give any person, other than the persons mentioned in the preceding sentence, any legal or equitable right, remedy or claim under or
in respect of this Agreement, or any provisions herein contained, this Agreement and all conditions and provisions hereof being intended
to be and being for the sole and exclusive benefit of such persons and for the benefit of no other person; except that the representations,
warranties, covenants, agreements and indemnities of the Company contained in this Agreement shall also be for the benefit of the Underwriter
Indemnified Parties, and the indemnities of the several Underwriters shall be for the benefit of the Company Indemnified Parties. It is
understood that each Underwriter’s responsibility to the Company is solely contractual in nature and the Underwriters do not owe
the Company, or any other party, any fiduciary duty as a result of this Agreement. No purchaser of any of the Offered Securities from
any Underwriter shall be deemed to be a successor or assign by reason merely of such purchase.
13. Survival
of Indemnities, Representations, Warranties, etc. The respective indemnities, covenants, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by them respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter,
the Company or any person controlling any of them and shall survive delivery of and payment for the Shares and Pre-Funded Warrants. Notwithstanding
any termination of this Agreement, including without limitation any termination pursuant to Section 8 or Section 10, the indemnities,
covenants, agreements, representations, warranties and other statements forth in Sections 2, 5, 7 and 9 and Sections 11 through 21, inclusive,
of this Agreement shall not terminate and shall remain in full force and effect at all times.
14. Recognition
of the U.S. Special Resolution Regimes
(a) In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
15. Notices.
All statements, requests, notices and agreements hereunder shall be in writing, and:
(a) if
to the Underwriters, shall be delivered or sent by mail, telex, facsimile transmission or email to Xxxxx Xxxxxxx & Co.0000 Xxxxxx
xx xxx Xxxxxxxx, 0xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000, Fax: 000-000-0000 and to General Counsel at Xxxxx Xxxxxxx & Co., 000 Xxxxxxxx
Xxxx, Xxxxxxxxxxx, XX 00000, XxxxxXxxXxxxxxx@xxx.xxx; and
(b) if
to the Company Milestone Pharmaceuticals Inc., 0000, Xx. Xxxxxxxx-Xxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx, Xxxxxx X0X
0XX, Attention: Xxxxxx X. Xxxxxxx, President and CEO;
provided, however, that any notice to an
Underwriter pursuant to Section 7 shall be delivered or sent by mail, or facsimile transmission to such Underwriter at its address
set forth in its acceptance telex to the Representative, which address will be supplied to any other party hereto by the Representative
upon request. Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof.
16. Definition
of Certain Terms. For purposes of this Agreement, (a) “affiliate” has the meaning set forth
in Rule 405 under the Securities Act, (b) “business day” means any day on which the New York Stock
Exchange, Inc. is open for trading (c) “subsidiary” has the meaning set forth in Rule 405 of
the Rules and Regulations; (d) “BHC Act Affiliate” has the meaning assigned to the term “affiliate”
in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k), (e) “Covered Entity” means any
of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b);
or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b),
(f) “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with,
12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable, (g) “U.S. Special Resolution Regime” means
each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Xxxx-Xxxxx
Xxxx Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
17. Governing
Law, Jurisdiction, Waiver of Jury Trial, Agent For Service. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, including without limitation Section 5-1401 of the New York General Obligations. The Company
irrevocably (a) submits to the exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of
New York for the purpose of any suit, action or other proceeding arising out of this Agreement or the transactions contemplated by this
Agreement, the Registration Statement, and the Base Prospectus, any Preliminary Prospectus or the Prospectus, (b) agrees that all
claims in respect of any such suit, action or proceeding may be heard and determined by any such court, (c) waives to the fullest
extent permitted by applicable law, any immunity from the jurisdiction of any such court or from any legal process, (d) agrees not
to commence any such suit, action or proceeding other than in such courts, and (e) waives, to the fullest extent permitted by applicable
law, any claim that any such suit, action or proceeding is brought in an inconvenient forum. Each of the parties to this Agreement
hereby waives any right to trial by jury in any suit or proceeding arising out of or relating to this Agreement. The Company irrevocably
appoints Milestone Pharmaceuticals USA Inc., with offices at 0000 Xxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000,
Xxxxxx Xxxxxx xx Xxxxxxx (and its successors) as its authorized agent in the Borough of Manhattan in The City of New York upon
which process may be served in any such suit or proceeding, and agrees that service of process upon such agent, and written notice of
said service to the Company by the person serving the same to the address provided in Section 15, shall be deemed in every respect
effective service of process upon the Company in any such suit or proceeding.
18. Underwriters’
Information. The parties hereto acknowledge and agree that, for all purposes of this Agreement, the Underwriters’
Information consists solely of the following information in the Prospectus: the statements concerning the Underwriters contained in the
ninth paragraph concerning concessions under the heading “Underwriting.”
19. Authority
of the Representative. In connection with this Agreement, the Representative will act for and on behalf of the several Underwriters,
and any action taken under this Agreement by the Representative, will be binding on all the Underwriters.
20. Partial
Unenforceability. The invalidity or unenforceability of any section, paragraph, clause or provision of this Agreement shall
not affect the validity or enforceability of any other section, paragraph, clause or provision hereof. If any section, paragraph, clause
or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and enforceable.
21. General.
This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject matter hereof. In this Agreement, the masculine, feminine
and neuter genders and the singular and the plural include one another. The section headings in this Agreement are for the convenience
of the parties only and will not affect the construction or interpretation of this Agreement. This Agreement may be amended or modified,
and the observance of any term of this Agreement may be waived, only by a writing signed by the Company and the Representative.
22. Counterparts.
This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may be delivered via facsimilie, electronic mail (including pdf or any
electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., xxx.xxxxxxxx.xxx or xxx.xxxxxxxx.xxx) or other transmission
method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
If the foregoing is in accordance
with your understanding please indicate your acceptance of this Agreement by signing in the space provided for that purpose below.
Accepted as of |
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the date first above written: |
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XXXXX XXXXXXX & CO. |
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Acting on its own behalf |
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and as Representative of several |
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Underwriters listed on Schedule A to this Agreement. |
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By: XXXXX XXXXXXX & CO. |
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By: |
/s/ Xxxx Xxxxx |
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Name: Xxxx Xxxxx |
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Title: Managing Director |
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SCHEDULE A
Name | |
Number of Firm Shares
to be Purchased | | |
Number of Pre-Funded
Warrants to be Purchased | |
Xxxxx Xxxxxxx & Co. | |
| 15,000,000 | | |
| 3,000,000 | |
X.X. Xxxxxxxxxx & Co., LLC | |
| 1,666,667 | | |
| 333,333 | |
Total | |
| 16,666,667 | | |
| 3,333,333 | |
SCHEDULE B
General Use Free Writing Prospectuses
None
SCHEDULE C
Pricing Information
| 1. | Free writing prospectuses filed by the Company under Rule 433(d) of the Securities Act: |
None
Firm Shares to Be Sold: 16,666,667
Pre-Funded Warrants to Be Sold: 3,333,333
Optional Shares which May Be Sold: 3,000,000
Public Offering Price per Share: $1.50
Public Offering Price per Pre-Funded Warrant: $1.499
Underwriting Commissions: 6.0%
Estimated Net Proceeds to the Company (after underwriting
commissions, but before transaction expenses): $28,046,866.67
Settlement: T+2
SCHEDULE D
Lock-Up Signatories
Directors:
Xxxx X. Xxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxxxx, M.D.
Xxxxxxx Xxxxxxxx
Xxxxxx X. Xxxxx, Ph.X.
Xxxx X.X. Xxxxxxx
Officers:
Xxxxxx Xxxxxxx
Xxxxx Xxxxxxxx
Xxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxx Xxxxxx
Exhibit A
Form of Lock-Up Agreement