VBI
Vaccines Inc.
$30,000,000
equity
distribution AGREEMENT
May
15, 2017
Canaccord
Genuity Inc.
00
Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Ladies
and Gentlemen:
VBI
Vaccines Inc., a company incorporated under the Business Corporations Act (British Columbia) (the “Company”),
confirms its agreement (this “Agreement”) with Canaccord Genuity Inc. (“Canaccord”), as
of the date first written above, as follows:
1. Issuance
and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject
to the conditions set forth herein, it will issue and sell through Canaccord, acting as sales agent, common shares, no par value
per share (the “Common Shares”), of the Company (the “Shares”) having an aggregate offering
price of up to $30,000,000. The Shares will be sold on the terms set forth herein at such times and in such amounts as the Company
and Canaccord shall agree from time to time. The issuance and sale of the Shares through Canaccord will be effected pursuant to
the Registration Statement (as defined below) filed by the Company with, and to be declared effective by, the United States Securities
and Exchange Commission (the “Commission”).
2. Placements.
| (a) | Placement
Notice. Each time that the Company wishes to issue and sell Shares hereunder (each,
a “Placement”), it will notify Canaccord by e-mail notice (or other
method mutually agreed to in writing by the parties) containing the parameters within
which it desires to sell the Shares, which shall at a minimum include the number of Shares
(“Placement Shares”) to be issued, the time period during which sales
are requested to be made, any limitation on the number of Shares that may be sold in
any one Trading Day (as defined in Section 3) and any minimum price below which
sales may not be made (a “Placement Notice”), a form of which shall
be mutually agreed upon by the Company and Canaccord. The Placement Notice shall originate
from any of the individuals (each an “Authorized Representative”)
from the Company set forth on Schedule 1 (with a copy to each of the other individuals
from the Company listed on such schedule), and shall be addressed to each of the individuals
from Canaccord set forth on Schedule 1 attached hereto, as such Schedule 1
may be amended from time to time. The Placement Notice shall be effective upon confirmation
by Canaccord unless and until (i) Canaccord declines to accept the terms contained therein
for any reason, in its sole discretion, in accordance with the notice requirements set
forth in Section 4, (ii) the entire amount of the Placement Shares have been sold,
(iii) the Company suspends or terminates the Placement Notice in accordance with the
notice requirements set forth in Section 4, (iv) the Company issues a subsequent
Placement Notice with parameters superseding those on the earlier dated Placement Notice,
or (v) the Agreement has been terminated under the provisions of Section 12. |
| (i) | Placement
Fee. The amount of compensation to be paid by the Company to Canaccord with respect
to each Placement (in addition to any expense reimbursement pursuant to Section 7(i)(ii))
shall be equal to 3.0% of gross proceeds from each Placement. |
| (ii) | No
Obligation. It is expressly acknowledged and agreed that neither the Company nor
Canaccord will have any obligation whatsoever with respect to a Placement or any Placement
Shares unless and until the Company delivers a Placement Notice to Canaccord, and then
only upon the terms specified therein and herein. It is also expressly acknowledged that
Canaccord will be under no obligation to purchase Shares on a principal basis. Unless
otherwise provided herein, in the event of a conflict between the terms of this Agreement
and the terms of a Placement Notice, the terms of the Placement Notice control. |
3. Sale
of Placement Shares by Canaccord. Subject to the terms and conditions of this Agreement, upon the Company’s issuance
of a Placement Notice, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise
terminated in accordance with the terms of this Agreement, Canaccord will use its commercially reasonable efforts consistent with
its normal trading and sales practices to sell on behalf of the Company and as agent, such Placement Shares up to the amount specified,
and otherwise in accordance with the terms of such Placement Notice. The Company acknowledges that Canaccord will conduct the
sale of Placement Shares in compliance with applicable law, rules and regulations including, without limitation, Regulation M
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and The NASDAQ Stock Market LLC
and that such compliance may include a delay in commencement of sales efforts after receipt of a Placement Notice. Canaccord will
provide written confirmation to the Company, as provided in Section 13, no later than the opening of the Trading Day (as
defined below) next following the Trading Day on which they have made sales of Placement Shares hereunder setting forth the number
of Placement Shares sold on such day, the compensation payable by the Company to Canaccord with respect to such sales, and the
Net Proceeds (as defined below) payable to the Company. Canaccord may sell Placement Shares by any method permitted by law deemed
to be an “at the market” offering under Rule 415 of the Securities Act of 1933, as amended (the “Securities
Act”), including without limitation sales made directly on the NASDAQ Capital Market, on any other existing trading
market for the Common Shares or to or through a market maker. Notwithstanding anything to the contrary set forth in this Agreement
or a Placement Notice, the Company acknowledges and agrees that (i) there can be no assurance that Canaccord will be successful
in selling any Placement Shares or as to the price at which any Placement Shares are sold, if at all, and (ii) Canaccord will
incur no liability or obligation to the Company or any other person or entity if they do not sell Placement Shares for any reason
other than a failure by Canaccord to use its commercially reasonable efforts consistent with its normal trading and sales practices
to sell on behalf of the Company and as agent such Placement Shares as provided under this Section 3. For the purposes
hereof, “Trading Day” means any day on which the NASDAQ Capital Market is open for trading.
4. Suspension
of Sales.
| (a) | The
Company or Canaccord may, upon notice to the other party in writing, by telephone (confirmed
immediately by verifiable facsimile transmission) or by e-mail notice (or other method
mutually agreed to in writing by the parties), suspend any sale of Placement Shares;
provided, however, that such suspension shall not affect or impair either party’s
obligations with respect to any Placement Shares sold hereunder prior to the receipt
of such notice. The Company agrees that no such notice shall be effective against Canaccord
unless it is made to one of the individuals named on Schedule 1 hereto, as such
Schedule may be amended from time to time. |
| (b) | Notwithstanding
any other provision of this Agreement, during any period in which the Company is in possession
of material non-public information, the Company and Canaccord (provided Canaccord has
been given prior written notice of such by the Company, which notice Canaccord agrees
to treat confidentially) agree that no sale of Placement Shares will take place. |
5. Settlement.
| (a) | Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice,
settlement for sales of Placement Shares will occur on the third (3rd) Business Day (or
such earlier day as is agreed by the parties to be industry practice for regular-way
trading) following the date on which such sales are made (each a “Settlement
Date”). The amount of proceeds to be delivered to the Company on a Settlement
Date against the receipt of the Placement Shares sold (“Net Proceeds”)
will be equal to the aggregate sales price at which such Placement Shares were sold,
after deduction for (i) the commission or other compensation for such sales payable by
the Company to Canaccord, as the case may be, pursuant to Section 2 hereof, (ii)
any other amounts due and payable by the Company to Canaccord hereunder pursuant to Section
7(i) hereof, and (iii) any transaction fees imposed by any governmental or self-regulatory
organization in respect of such sales. |
| (b) | Delivery
of Shares. On each Settlement Date, the Company will, or will cause its transfer
agent to, electronically transfer the Placement Shares being sold by crediting Canaccord’s
accounts or its designee’s account at The Depository Trust Company through its
Deposit Withdrawal Agent Commission System or by such other means of delivery as may
be mutually agreed upon by the parties hereto and, upon receipt of such Placement Shares,
which in all cases shall be freely tradeable, transferable, registered shares in good
deliverable form, Canaccord will, on each Settlement Date, deliver the related Net Proceeds
in same day funds delivered to an account designated by the Company prior to the Settlement
Date. If the Company defaults in its obligation to deliver Placement Shares on a Settlement
Date, the Company agrees that in addition to and in no way limiting the rights and obligations
set forth in Section 10 hereto, it will (i) hold Canaccord harmless against any
loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred,
arising out of or in connection with such default by the Company and (ii) pay to Canaccord
any commission, discount, or other compensation to which it would otherwise have been
entitled absent such default; provided, however, that without limiting Section 10
herein, the Company shall not be obligated to pay Canaccord any commission, discount
or other compensation on any Placement Shares that it is not possible to settle due to:
(i) a suspension or material limitation in trading in securities generally on the NASDAQ
Capital Market; or (ii) a material disruption in securities settlement or clearance services
in the United States. |
6. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with, Canaccord that:
| (a) | Registration
Statement and Prospectus. The Common Shares are registered pursuant to Section 12(b)
of the Exchange Act, and the Company has filed all reports, schedules, forms, statements
and other documents required to be filed by it with the Commission (the “Commission
Documents”) since May 6, 2016, and all of such filings required to be filed
since such date have been made on a timely basis. The Common Shares are currently quoted
on the NASDAQ Capital Market under the trading symbol “VBIV” and on the Toronto
Stock Exchange under the trading symbol “VBV.” The Company and the transactions
contemplated hereby meet the requirements for use of Form S-3 under the Securities Act
and the rules and regulations thereunder (“Rules and Regulations”),
including but not limited to the transaction requirements for an offering made by the
issuer set forth in Instruction I.B.1 to Form S-3. The Company has prepared and filed
or will file with the Commission a registration statement on Form S-3 with respect to
the Shares to be offered and sold by the Company pursuant to this Agreement. Such registration
statement, at any given time, including the amendments thereto at such time, the exhibits
and any schedules thereto at such time, the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act at such time and the documents
otherwise deemed to be a part thereof or included therein by the rules and regulations
under the Securities Act, is herein called the “Registration Statement.”
The Registration Statement at the time it will become effective is herein called the
“Original Registration Statement.” The Registration Statement, including
the base prospectus contained therein (the “Base Prospectus”) was
prepared by the Company in conformity with the requirements of the Securities Act and
all applicable Rules and Regulations. One or more prospectus supplements (the “Prospectus
Supplements,” and together with the Base Prospectus and any amendment thereto
and all documents incorporated therein by reference, the “Prospectus”)
have been or will be prepared by the Company in conformity with the requirements of the
Securities Act and all applicable Rules and Regulations and have been or will be filed
with the Commission in the manner and time frame required by the Securities Act and the
Rules and Regulations. Any amendment or supplement to the Registration Statement or Prospectus
required by this Agreement will be so prepared and filed by the Company and, as applicable,
the Company will use commercially reasonable efforts to cause it to become effective
as soon as reasonably practicable. No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that purpose has been instituted
or, to the knowledge of the Company, threatened by the Commission. No order preventing
or suspending the use of the Base Prospectus, the Prospectus Supplement, the Prospectus
or any Issuer Free Writing Prospectus has been issued by the Commission. Copies of all
filings made by the Company under the Securities Act and all Commission Documents that
were filed with the Commission have either been delivered to Canaccord or made available
to Canaccord on the Commission’s Electronic Data Gathering, Analysis, and Retrieval
system (“XXXXX”). Any reference herein to the Registration Statement,
the Prospectus, or any amendment or supplement thereto shall be deemed to refer to and
include the documents incorporated (or deemed to be incorporated) by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, and any reference herein to
the terms “amend,” “amendment” or “supplement” with
respect to the Registration Statement or Prospectus shall be deemed to refer to and include
the filing after the execution hereof of any document with the Commission deemed to be
incorporated by reference therein. For the purposes of this Agreement, the “Applicable
Time” means, with respect to any Shares, the time of sale of such Shares pursuant
to this Agreement. |
| (b) | No
Misstatement or Omission. Each part of the Registration Statement, when such part
becomes effective, at any deemed effective date pursuant to Rule 430B(f)(2) on the date
of filing thereof with the Commission and at each Applicable Time and Settlement Date,
and the Prospectus, on the date of filing thereof with the Commission and at each Applicable
Time and Settlement Date, conformed or will conform in all material respects with the
requirements of the Securities Act and the Rules and Regulations, except that financial
statements of VBI Vaccines (Delaware) Inc., a Delaware corporation (“VBI Delaware”),
for the quarterly period ended March 31, 2016, which were not required to be filed with
the Commission by VBI Delaware following its filing of Form 15 with the Commission, but
which may be required to be included or incorporated by reference in the Registration
Statement, have not been filed with the Commission as of the date hereof but will be
filed, if required, prior to the effective date of the Registration Statement; each part
of the Registration Statement, when such part becomes effective, did not or will not
contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading; and
the Prospectus, on the date of filing thereof with the Commission, and the Prospectus
and the applicable Issuer Free Writing Prospectus(es) issued at or prior to such Applicable
Time, taken together (collectively, and with respect to any Shares, together with the
public offering price of such Shares, the “Disclosure Package”) and
at each Applicable Time and Settlement Date, did not or will not include an untrue statement
of a material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading; except
that the foregoing shall not apply to statements or omissions in any such document made
in reliance on information furnished in writing to the Company by Canaccord intended
for use in the Registration Statement, the Prospectus, or any amendment or supplement
thereto. |
| (c) | Conformity
with Securities Act and Exchange Act. The documents incorporated by reference in
the Registration Statement or the Prospectus, or any amendment or supplement thereto,
when they became effective under the Securities Act or were filed with the Commission
under the Exchange Act, as the case may be, conformed in all material respects with 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 an
untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Registration Statement or the
Prospectus or any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform 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 an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided however, that this representation and warranty
shall not apply to any statements or omissions (a) that have been corrected in a filing
that has been incorporated by reference in the Prospectus not less than 24 hours prior
to the relevant Applicable Time or (b) made in reliance on information furnished in writing
to the Company by Canaccord intended for use in any such document. |
| (d) | Financial
Information. The consolidated financial statements and the related notes thereto
and the supporting schedules of the Company and all significant subsidiaries (as defined
in Rule 1-02 (w) of Regulation S-X of the Exchange Act) of the Company (the “Subsidiaries”),
together with the related notes, set forth or incorporated by reference in the Registration
Statement, Prospectus and Disclosure Package, have been and will be prepared in accordance
with Regulation S-X under the Securities Act and with United States generally accepted
accounting principles consistently applied at the times and during the periods involved
(except (i) as may be otherwise indicated in such financial statements or the notes thereto,
or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes
or may be condensed or summary statements) and fairly present in all material respects
and will fairly present in all material respects the financial position of the Company
as of the dates thereof and the results of its operations and cash flows for the periods
then ended (subject, in the case of unaudited statements, to normal year-end adjustments);
and the other financial information included or incorporated by reference in the Registration
Statement, the Prospectus and the Disclosure Package has been compiled on a basis consistent
in all material respects with that of the financial statements and presents fairly in
all material respects the information shown thereby. The Company does not have any material
liabilities or obligations, direct or contingent, which are not disclosed in the Registration
Statement, Prospectus and Disclosure Package. |
| (i) | The
Company has been duly incorporated and is validly existing as a corporation in good standing
under the Business Corporations Act (British Columbia) with full corporate power
and authority to own, lease and operate its properties and to conduct its business as
described in the Registration Statement and Prospectus; and the Company is duly qualified
as a foreign entity to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure, individually or in
the aggregate, to be so qualified and be in good standing would not have a material adverse
effect on (i) the consolidated business, operations, assets, properties, financial condition,
prospects or results of operations of the Company and its Subsidiaries taken as a whole,
(ii) the transactions contemplated hereby or (iii) the ability of the Company to perform
its obligations under this Agreement (collectively, a “Material Adverse Effect”). |
| (ii) | Each
of the Subsidiaries is validly existing (and in good standing, where applicable) under
the laws of the jurisdiction of its formation and has full power and authority to own,
lease and operate its properties and conduct its business as described in the Registration
Statement and the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except where the
failure to be so qualified would not have a Material Adverse Effect. |
| (f) | Subsidiaries.
Except as described in the Prospectus, all of the assets described in the Prospectus
as owned by the Subsidiaries of the Company are owned directly by the Subsidiaries. Except
for the Subsidiaries, the Company owns no beneficial interest, directly or indirectly,
in any corporation, partnership, joint venture, limited liability company or other entity. |
| (g) | Encumbrances.
Except as set forth in the Registration Statement, the Disclosure Package and the Prospectus,
each of the Company and its Subsidiaries has (i) good and marketable title to all of
the properties and assets owned by it, free and clear of all liens, charges, claims,
security interests or encumbrances (collectively, “Encumbrances”),
other than Encumbrances that would not have a Material Adverse Effect or do not materially
interfere with the use made and proposed to be made of such property by the Company and
its Subsidiaries, and (ii) possession under all material leases to which it is party
as lessee. All leases and contracts to which the Company or its Subsidiaries is a party
are valid and binding and no material default has occurred and is continuing thereunder
(unless waived), and no event or circumstance that with the passage of time or giving
of notice, or both, would constitute such a material default has occurred and is continuing
(unless waived), and, to the knowledge of the Company, no defaults by the counterparties
exist under any such leases or contracts. |
| (h) | No
Improper Practices. (i) Neither the Company nor the Subsidiaries, nor to the knowledge
of the Company, any director, officer, agent, employee or other person acting on behalf
of the Company or the Subsidiaries, has, in the past five years, used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense relating
to political activity; made any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds, violated or is in violation
of any provision of the Foreign Corrupt Practices Act of 1977; or made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment; (ii) no relationship,
direct or indirect, exists between or among the Company or, to the knowledge of the Company,
the Subsidiaries or any affiliate of either of them, on the one hand, and, to the knowledge
of the Company, the directors, officers and shareholders of the Company or the Subsidiaries,
on the other hand, that is required by the Securities Act to be described in the Registration
Statement and the Prospectus that is not so described; (iii) no relationship, direct
or indirect, exists between or among the Company or the Subsidiaries or any affiliate
of them, on the one hand, and, to the knowledge of the Company, the Subsidiaries, the
directors, officers, shareholders or directors of the Company or on the other hand, that
is required by the rules of the Financial Industry Regulatory Authority (“FINRA”)
to be described in the Registration Statement and the Prospectus that is not so described;
and (iv) except as described in the Registration Statement and the Prospectus, there
are no material outstanding loans or advances or material guarantees of indebtedness
by the Company or, to the knowledge of the Company, the Subsidiaries to or for the benefit
of any of their respective officers or directors or any of the members of the families
of any of them. |
| (i) | Investment
Company Act. Neither the Company nor the Subsidiaries, is now or, after giving effect
to the offering and sale of the Shares, will be required to register as an “investment
company” or an entity “controlled” by an “investment company,”
as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment
Company Act”). |
| (j) | Capitalization.
The Company has authorized and outstanding capitalization as set forth in the Prospectus
under the caption “Description of Securities”, and all of the issued capital
shares of the Company have been duly and validly authorized and issued and are fully
paid and non-assessable and have been issued in compliance with all Canadian, and to
the extent applicable, all United States federal and state and, to the knowledge of the
Company, all other applicable foreign securities laws; and all of the issued capital
shares of the Subsidiaries of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable and the shares of such Subsidiaries are owned directly
or indirectly by the Company and, except as set forth in the Registration Statement,
the Disclosure Package and the Prospectus, are held free and clear of all Encumbrances.
Except as set forth in the Registration Statement and the Prospectus, and except with
respect to equity awards issued under the Company’s equity incentive plans, there
are no 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 capital shares of the Company. |
| (k) | The
Shares. The Shares have been duly authorized and, when issued, delivered and paid
for pursuant to this Agreement, will be validly issued, fully paid and non-assessable,
free and clear of all Encumbrances and will be issued in compliance with all Canadian,
and to the extent applicable, all United States federal and state and all other applicable
foreign securities laws; the capital shares of the Company, including the Common Shares,
conform in all material respects to the description thereof contained in the Registration
Statement and the Common Shares, including the Placement Shares, will conform to the
description thereof contained in the Prospectus as amended or supplemented. Except as
set forth in the Prospectus, neither the shareholders of the Company, nor any other person
or entity have any preemptive rights or rights of first refusal with respect to the Placement
Shares or other rights to purchase or receive any of the Placement Shares or any other
securities or assets of the Company, and no person has the right, contractual or otherwise,
to cause the Company to issue to it, or register pursuant to the Securities Act (other
than such registration rights which have been waived in writing by the holders thereof
as of the date of this Agreement solely in connection with the filing of the Registration
Statement), any capital shares or other securities or assets of the Company upon the
issuance or sale of the Placement Shares. |
| (l) | No
Material Changes. Subsequent to the respective dates as of which information is given
in the Registration Statement, the Prospectus and the Disclosure Package, and except
as may be otherwise stated or incorporated by reference in the Registration Statement,
the Prospectus and the Disclosure Package, (i) neither the Company nor the Subsidiaries
has sustained any material loss or interference with the business of the Company and
its Subsidiaries, taken as a whole, including without limitation, from fire, explosion,
flood or other calamity or damage to any asset, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree; (ii) there
have been no transactions entered into by the Company or the Subsidiaries which are material
to the Company and its Subsidiaries, considered as a whole, (iii) there has not been
any change, development, or event that has caused, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect and (iv) since the
date of the latest financial statements included or incorporated by reference in the
Registration Statement and the Prospectus there has not been any material change, on
a consolidated basis, in the authorized capital shares of the Company and its Subsidiaries,
any material increase in the short-term debt or long-term debt of the Company and its
Subsidiaries, on a consolidated basis, or any dividend or distribution of any kind declared,
set aside for payment, paid or made by the Company on any class of capital shares, or
any Material Adverse Effect, or any development reasonably likely to cause or result
in a Material Adverse Effect. |
| (i) | Except
as set forth in the Prospectus, there is no action, suit or proceeding before or by any
government, governmental instrumentality, agency, body or court, now pending, that would
be required pursuant to Item 103 of Regulation S-K under the Securities Act to be described
in the Prospectus that is not described in the Prospectus. Neither the Company nor its
Subsidiaries is a party to or subject to the provisions of, any order, writ, injunction,
judgment or decree of any court or government agency or instrumentality which could have
a Material Adverse Effect. |
| (ii) | There
are no legal, governmental or administrative proceedings, investigations, actions, suits
or inquiries or contracts or documents of the Company or its Subsidiaries that are required
to be described in or filed as exhibits to the Commission Documents, Registration Statement
or any of the documents incorporated by reference therein by the Securities Act or the
Exchange Act or by the rules and regulations of the Commission thereunder that have not
been so described or filed as required by the Securities Act or the Exchange Act and
the Rules and Regulations under either of them. |
| (n) | Authorization;
Enforceability. |
| (i) | The
Company has all requisite corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder, to provide the representations, warranties
and indemnities under this Agreement and all necessary action has been duly and validly
taken by the Company to authorize the execution, delivery and performance of this Agreement.
This Agreement has been duly and validly authorized, executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company. |
| (ii) | Executing
and delivering this Agreement and the issuance and sale of the Shares and the compliance
by the Company with all of the provisions of this Agreement and the consummation of the
transactions contemplated herein will not result in (i) a breach or violation of any
of the terms and provisions of, or constitute a default under, any obligation, agreement,
covenant or condition contained in any material indenture, mortgage, deed of trust, loan
or credit agreement or other agreement or instrument to which the Company or its Subsidiaries
is a party or by which either of them is bound or to which any of the property of the
Company or its Subsidiaries is subject, (ii) a violation of the Company’s charter,
articles of incorporation or bylaws, or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the Company or its
Subsidiaries or any of their properties, (iii) the creation of any material Encumbrance
upon any assets of the Company or its Subsidiaries or the triggering, solely as a result
of the Company’s execution and delivery of this Agreement, of any preemptive or
anti-dilution rights or rights of first refusal or first offer, or any similar rights
(whether pursuant to a “poison pill” provision or otherwise), on the part
of holders of the Company’s securities or any other person (except such anti-dilution
rights as disclosed in the Prospectus) or (iv), to the Company’s knowledge, result
in the violation of any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority having jurisdiction over
the Company or its Subsidiaries or any of their properties. Neither the Company nor its
Subsidiaries or affiliates, nor any person acting on its or their behalf, has issued
or sold any Common Shares or securities or instruments convertible into, exchangeable
for and/or otherwise entitling the holder thereof to acquire Common Shares which would
be integrated with the offer and sale of the Shares hereunder for purposes of NASDAQ
Rule 5635. |
| (o) | Enforceability
of Agreements. All agreements between the Company and third parties expressly referenced
in the Prospectus are legal, valid and binding obligations of the Company enforceable
in accordance with their respective terms, except to the extent that (i) enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally and by general equitable principles and (ii)
the indemnification provisions of certain agreements may be limited by federal or state
securities laws or public policy considerations in respect thereof and except for any
unenforceability that, individually or in the aggregate, would not unreasonably be expected
to have a Material Adverse Effect. |
| (p) | No
Violations or Default. Neither the Company nor its Subsidiaries is (i) in violation
of any provisions of its charter, articles of incorporation, bylaws or any other governing
document as amended and in effect on and as of the date hereof, (ii) in default (and
no event has occurred which, with notice or lapse of time or both, would constitute a
default) under any indenture, mortgage, deed of trust, loan or credit agreement or any
provision of any instrument or contract to which it is a party or by which it is bound
that, individually or in the aggregate, could have a Material Adverse Effect or (iii)
subject to a Company Repayment Event (as defined below). As used herein, “Company
Repayment Event” means any event or condition which gives 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 prior to the stated
maturity or date of mandatory redemption or repayment thereof of all or a portion of
such indebtedness by the Company or its Subsidiaries. |
| (q) | Compliance
with Laws. Since May 6, 2016 and, to the knowledge of the Company, prior to such
date, the Company and its Subsidiaries have not violated and are in compliance with all
laws, statutes, ordinances, regulations, rules and orders of each foreign, federal, state
or local government and any other governmental department or agency having jurisdiction
over the Company and the Subsidiaries, and any judgment, decision, decree or order of
any court or governmental agency, department or authority having jurisdiction over the
Company and the Subsidiaries, except for such violations or noncompliance which, individually
or in the aggregate, would not have a Material Adverse Effect. |
| (r) | Consents
and Permits. Except as disclosed in the Registration Statement and the Prospectus,
the Company and its Subsidiaries possess all such licenses, permits, consents, orders,
certificates, authorizations, approvals, franchises and rights issued by and have obtained
or made all such registrations with the appropriate federal, state, foreign or local
regulatory agencies or judicial or governmental bodies that are or will be necessary
to conduct their business as described in the Registration Statement and the Prospectus
except for licenses, permits, consents, orders, certificates, authorizations, approvals,
franchises, rights or registrations, the absence of which, individually or in the aggregate,
would not have a Material Adverse Effect; the Company and its Subsidiaries have not received
any notice of proceedings or investigations relating to the revocation or modification
of any such licenses, permits, consents, orders, certificates, authorizations, approvals,
franchises, rights or registrations which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would have a Material Adverse Effect.
No consent, approval, authorization, permit, or order of, or filing or registration with,
any court or governmental or self-regulatory agency or body is required for the issue
and sale of the Shares and the consummation by the Company of the transactions contemplated
by this Agreement, except the filing with the Commission of the Registration Statement
(including the Prospectus) and amendments and supplements to the Registration Statement
and Prospectus related to the issue and sale of the Shares, filings related to the transactions
contemplated hereby on Form 8-K (unless disclosed on Form 10-Q or Form 10-K) and such
consents, approvals, authorizations, registrations or qualifications as have already
been obtained or made or as may be required under the Canadian securities laws, and such
as may be required under the blue sky laws of any jurisdiction or the rules and regulations
of FINRA, The NASDAQ Stock Market LLC or the Toronto Stock Exchange in connection with
the transactions contemplated by this Agreement. |
| (s) | Insurance.
Other than as set forth in the Prospectus, the Company and its Subsidiaries carry, or
are covered by, insurance in such amounts and covering such risks as is prudent, reasonable
and customary for companies engaged in similar businesses in similar industries; neither
the Company nor its Subsidiaries has received notice from any insurer or agent of such
insurer that substantial capital improvements or other expenditures will have to be made
in order to continue such insurance; all such insurance is outstanding and in full force
and effect and neither the Company nor the Subsidiaries has received any notice of cancellation
or proposed cancellation relating to such insurance. |
| (i) | Other
than as set forth in the Prospectus, the Company and its Subsidiaries have obtained all
environmental permits, licenses and other authorizations required by federal, state,
foreign and local law relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental
Laws”), in order to conduct their businesses as described in the Prospectus
except where the failure to obtain a particular environmental permit, license, or authorization,
has not or would not reasonably be expected to, either individually or in the aggregate,
result in a Material Adverse Effect; the Company and the Subsidiaries are conducting
their businesses in compliance in all material respects with such permits, licenses and
authorizations and with applicable environmental laws; and, except as described in the
Prospectus, the Company is not in violation of any federal, state, foreign or local law
or regulation relating to the storage, handling, disposal, release or transportation
of hazardous or toxic materials except for such violations or noncompliance which, individually
or in the aggregate, would not have a Material Adverse Effect. |
| (u) | Independent
Public Accountants. Each of (i) EisnerAmper LLP, which has audited the consolidated
balance sheets of the Company as of December 31, 2016 and the consolidated statements
of income, shareholders’ equity, and cash flows for the year then ended, (ii) Xxxxxx
LLP, which has audited the consolidated balance sheets of the Company as of December
31, 2015 and the consolidated statements of income, shareholders’ equity, and cash
flows for the year then ended, and (iii) Xxxxxxxx Xxxxxxxx LLP, which has audited the
consolidated balance sheets of VBI Delaware as of December 31, 2015 and the consolidated
statements of comprehensive loss, stockholders’ equity, and cash flows for the
years then ended, which are all included in or incorporated by reference in the Registration
Statement and the Prospectus, is a registered independent public accounting firm as required
by the Securities Act, the Rules and Regulations and the Exchange Act. |
| (v) | Forward-Looking
Statements. No forward looking statement within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act contained in the Commission Documents,
the Registration Statement or the Prospectus, has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith. |
| (w) | Intellectual
Property. The Company and its Subsidiaries own, possess, license or otherwise have
sufficient legal rights to all patents, trademarks, service marks, trade names, copyrights,
trade secrets, licenses, information and proprietary rights and processes necessary for
their respective businesses as now conducted (collectively, the “Company Intellectual
Property Rights”) without any conflict with or infringement of the rights of
others, except where the failure to own, license or otherwise have rights to such Company
Intellectual Property Rights, individually or in the aggregate, would not have a Material
Adverse Effect. Neither the Company nor the Subsidiaries has received any written communications
alleging that the Company or its Subsidiaries has violated or, by conducting its business
as now conducted, would violate any of the patents, trademarks, service marks, trade
names or copyrights, of any other person or entity. To the Company’s knowledge,
all Company patents and trademarks are enforceable and there is no existing infringement
by any person of such Company Intellectual Property Rights. |
| (i) | The
Company was not, for the immediately preceding taxable year, treated as, will not, for
the current taxable year, be treated as, and does not anticipate that, for any subsequent
taxable year, it will be treated as a “passive foreign investment company,”
a “foreign investment company” or a “foreign personal holding company”
for United States federal income tax purposes. |
| (ii) | The
Company has filed all Canadian, United States federal and state and all other applicable
local and foreign income tax returns which have been required to be filed, except in
any case in which the failure to so file would not have a Material Adverse Effect. |
| (iii) | The
Company has paid all Canadian, United States federal, state and local and other foreign
taxes required to be paid and any other assessment, fine or penalty levied against it,
to the extent that any of the foregoing would otherwise be delinquent, except, in all
cases, for any such tax, assessment, fine or penalty that is being contested in good
faith and except in any case in which the failure to so pay would not result in a Material
Adverse Effect. |
| (iv) | No
stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding
or other taxes are payable by or on behalf of Canaccord to any political subdivision
or taxing authority in connection with the sale and delivery by the Company of the Placement
Shares to or for the account of Canaccord or the sale and delivery by Canaccord of the
Placement Shares to the purchasers thereof. |
| (y) | No
Reliance. The Company has not relied upon Canaccord or legal counsel for Canaccord
for any legal, tax or accounting advice in connection with the offering and sale of the
Placement Shares. |
| (z) | FDA
Regulatory; Clinical Studies. |
| (i) | Except
in each case as otherwise disclosed in the Registration Statement and the Prospectus,
the Company has not been advised, and has no reason to believe, that it is not conducting
business in compliance with all applicable laws, rules and regulations of the jurisdictions
in which it is conducting business, and the Company: (i) is and at all times has been
in material compliance with all federal, state and local statutes, rules or regulations
applicable to the ownership, testing, development, manufacture, packaging, processing,
use, distribution, marketing, labeling, promotion, sale, offer for sale, storage, import,
export or disposal of any product under development, manufactured or distributed by the
Company (“Applicable Laws”); (ii) has not received any correspondence
or notice from the U.S. Food and Drug Administration (the “FDA”) or
any other federal, state, local or foreign governmental or regulatory authority alleging
or asserting material noncompliance with any Applicable Laws or any licenses, certificates,
approvals, clearances, authorizations, permits and supplements or amendments thereto
required by any such Applicable Laws (“Authorizations”); (iii) possesses
all material Authorizations and such Authorizations are valid and in full force and effect
and the Company is not in material violation of any term of any such Authorizations;
(iv) has not received notice of any claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other action from the FDA or any other federal, state,
local or foreign governmental or regulatory authority or third party alleging that any
product, operation or activity is in material violation of Section 361 of the Public
Health Services Act, any Applicable Laws or Authorizations and has no knowledge that
the FDA or any other federal, state, local or foreign governmental or regulatory authority
or third party is considering any such claim, litigation, arbitration, action, suit,
investigation or proceeding; (v) has not received notice that the FDA or any other federal,
state, local or foreign governmental or regulatory authority has taken, is taking or
intends to take action to limit, suspend, modify or revoke any material Authorizations
and has no knowledge that the FDA or any other federal, state, local or foreign governmental
or regulatory authority is considering such action; (vi) has filed, obtained, maintained
or submitted all material reports, documents, forms, notices, applications, records,
claims, submissions and supplements or amendments as required by any Applicable Laws
or Authorizations and that all such reports, documents, forms, notices, applications,
records, claims, submissions and supplements or amendments were materially complete and
correct on the date filed (or were corrected or supplemented by a subsequent submission);
and (vii) has not, either voluntarily or involuntarily, initiated, conducted, or issued
or caused to be initiated, conducted or issued, any recall, market withdrawal or replacement,
safety alert, “dear doctor” letter, or other notice or action relating to
the alleged lack of safety or efficacy of any product or any alleged product defect or
violation (other than the Company’s 2015 voluntary recall of Sci-B-VacTM)
and, to the Company’s knowledge, no third party has initiated, conducted or intends
to initiate any such notice or action. |
| (ii) | The
studies, tests and preclinical and clinical trials conducted by, or on behalf of the
Company were and, if still pending, are, being conducted in all material respects in
accordance with clinical protocols, procedures and controls pursuant to accepted professional
scientific standards and all Applicable Laws and Authorizations. Any descriptions of
the results of such studies, tests and trials contained in the Registration Statement
and the Prospectus are accurate and complete in all material respects and fairly present
the data derived from such studies, tests and trials. The Company is not aware of any
studies, tests or trials, the results of which the Company believes reasonably call into
question the study, test, or trial results described or referred to in the Registration
Statement and the Prospectus when viewed in the context in which such results are described
and the clinical state of development. The Company has not received any notices or correspondence
from the FDA or any other federal, state, local or foreign governmental or regulatory
authority requiring the termination, suspension or material modification of any studies,
tests or preclinical or clinical trials conducted by or on behalf of the Company. |
| (i) | The
Company has established and maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15 under the Exchange Act), which (a) are designed to ensure that
material information relating to the Company, including its consolidated Subsidiaries,
is made known to the Company’s principal executive officer and its principal financial
officer by others within those entities, particularly during the preparation of the Registration
Statement; (b) have been evaluated for effectiveness as of the date of the filing of
the Registration Statement with the Commission; and (c) are effective in all material
respects to perform the functions for which they were established. |
| (ii) | The
Company (a) makes and keeps accurate books and records and (b) maintains internal accounting
controls which provide reasonable assurance that (1) transactions are executed in accordance
with management’s authorization, (2) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain accountability for its
assets, (3) access to its assets is permitted only in accordance with management’s
authorization and (4) the reported accountability for its assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to any differences. |
| (bb) | Accounting
Controls. There is no (i) significant deficiency or material weakness in the design
or operation of internal controls over financial reporting; or (ii) fraud, whether or
not material, that involves management or other employees who have a significant role
in the Company’s internal controls over financial reporting. |
| (cc) | Certain
Market Activities. The Company has not taken, directly or indirectly, any action
designed to, or that might be reasonably expected to, cause or result in stabilization
or manipulation of the price of the Common Shares. |
| (dd) | Broker/Dealer
Relationships. Neither the Company nor the Subsidiaries or any related entities (i)
is required to register as a “broker” or “dealer” in accordance
with the provisions of the Exchange Act or (ii) directly or indirectly through one or
more intermediaries, controls or is a “person associated with a FINRA member”
or “associated person of a FINRA member” (within the meaning of Article I
of the Bylaws of the FINRA). |
| (ee) | Xxxxxxxx-Xxxxx.
The principal executive officer and principal financial officer of the Company have made
all certifications required by Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002
and the rules and regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx
Act”) with respect to all reports, schedules, forms, statements and other documents
required to be filed by it with the Commission, and the statements contained in any such
certification are complete and correct. The Company, and to its knowledge, all of the
Company’s directors or officers, in their capacities as such, are in compliance
in all material respects with all applicable effective provisions of the Xxxxxxxx-Xxxxx
Act. |
| (ff) | Finder’s
Fees. Neither the Company nor the Subsidiaries has incurred any liability for any
brokerage commission, finder’s fees or similar payments in connection with the
transactions herein contemplated, except as may otherwise exist with respect to Canaccord
pursuant to this Agreement. |
| (gg) | Labor
Disputes. There are no existing or, to the knowledge of the Company, threatened labor
disputes with the employees of the Company or its Subsidiaries which would reasonably
be expected to have a Material Adverse Effect. |
| (hh) | Canaccord
Purchases. The Company acknowledges and agrees that Canaccord has informed the Company
that Canaccord may, to the extent permitted under the Securities Act and the Exchange
Act, purchase and sell Common Shares for Canaccord’s own account and for the account
of its clients at the same time as sales of Placement Shares occur pursuant to this Agreement. |
| (ii) | No
Registration Rights. Except as may be described in the Prospectus, neither the Company
nor its Subsidiaries is party to any agreement that provides any person with the right
to require the Company or its Subsidiaries to register any securities for sale under
the Securities Act by reason of the filing of the Registration Statement with the Commission
or the issuance and sale of the Placement Shares (other than such registration rights
which have been waived in writing by the holders thereof as of the date of this Agreement
solely in connection with the filing of the Registration Statement). |
| (jj) | Prospectus
Disclosure. The statements set forth in the Prospectus under the caption “Description
of the Securities That May Be Offered” insofar as they purport to constitute a
summary of the terms of the Shares, and under the caption “Plan of Distribution,”
insofar as they purport to describe the provisions of the laws and documents referred
to therein, are accurate and complete in all material respects. |
| (kk) | OFAC.
To the knowledge of the Company, none of the Company, its Subsidiaries or any director,
officer, agent, employee or affiliate of the Company or its Subsidiaries is currently
the target of any proceeding, investigation, suit or other action arising out of any
U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department
of the Treasury (“OFAC”); and the Company will not directly or indirectly
use the proceeds of the offering of the Placement Shares hereunder, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture partner or
other person or entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC. |
| (ll) | Operations.
The operations of the Company and its Subsidiaries are and have been conducted at all
times in compliance with applicable financial record keeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions to which the Company and its Subsidiaries are
subject, the rules and regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any governmental agency (collectively,
the “Money Laundering Laws”), except as would not reasonably be expected
to result in a Material Adverse Effect; and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator involving the Company
or its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge
of the Company, threatened. |
| (mm) | Off-Balance
Sheet Arrangements. There are no transactions, arrangements and other relationships
between and/or among the Company, and/or, to the knowledge of the Company, any of its
affiliates and any unconsolidated entity, including, but not limited to, any structural
finance, special purpose or limited purpose entity (each, an “Off Balance Sheet
Transaction”) that could reasonably be expected to affect materially the Company’s
liquidity or the availability of or requirements for its capital resources, including
those Off Balance Sheet Transactions described in the Commission’s Statement about
Management’s Discussion and Analysis of Financial Conditions and Results of Operations
(Release Nos. 33-8056; 34-45321; FR-61), required to be described in the Prospectus which
have not been described as required. |
| (nn) | ERISA.
Each material employee benefit plan, within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), that
is maintained, administered or contributed to by the Company or any of its affiliates
for employees or former employees of the Company and its Subsidiaries has been maintained
in material compliance with its terms and the requirements of any applicable statutes,
orders, rules and regulations, including but not limited to ERISA and the Internal Revenue
Code of 1986, as amended (the “Code”); no prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred
which would result in a material liability to the Company with respect to any such plan
excluding transactions effected pursuant to a statutory or administrative exemption;
and for each such plan that is subject to the funding rules of Section 412 of the Code
or Section 302 of ERISA, no “accumulated funding deficiency” as defined in
Section 412 of the Code has been incurred, whether or not waived, and the fair market
value of the assets of each such plan (excluding for these purposes accrued but unpaid
contributions) exceeds the present value of all benefits accrued under such plan determined
using reasonable actuarial assumptions. |
| (oo) | No
Misstatement or Omission in an Issuer Free Writing Prospectus. Each issuer free writing
prospectus, as defined in Rule 405 under the Securities Act (an “Issuer Free
Writing Prospectus”), as of the Applicable Time did not or will not contain
an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that the Company makes
no representation or warranty with respect to any statement contained in any Issuer Free
Writing Prospectus in reliance upon and in conformity with written information furnished
to the Company by and through Canaccord for use therein. |
| (pp) | Conformity
of Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus conformed
or will conform in all material respects with the requirements of the Securities Act
on the date of first use, and the Company has complied or will comply with any filing
requirements applicable to such Issuer Free Writing Prospectus pursuant to the Securities
Act. 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 Placement Shares, did
not, does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the Prospectus,
including any document incorporated by reference therein that has not been superseded
or modified. The Company has not made any offer relating to the Shares that would constitute
an Issuer Free Writing Prospectus without the prior written consent of Canaccord. Since
May 6, 2016 and, to the knowledge of the Company, prior to such date, the Company has
retained in accordance with the Securities Act all Issuer Free Writing Prospectuses that
were not required to be filed pursuant to the Securities Act. |
| (qq) | FINRA
Exemption. The Company satisfies the pre-1992 eligibility requirements for the use
of a registration statement on Form S-3 in connection with the offering and sale of the
Shares contemplated hereby (the pre-1992 eligibility requirements for the use of the
registration statement on Form S-3 include (i) having a non-affiliate, public common
equity float of at least $100 million and annual trading volume of at least three million
shares and (ii) having been subject to the Exchange Act reporting requirements for a
period of 36 months). |
7. Covenants
of the Company. The Company covenants and agrees with Canaccord that:
| (a) | Registration
Statement Amendments. After the date of this Agreement and during the period in which
a prospectus relating to the Placement Shares is required to be delivered by Canaccord
under the Securities Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 or Rule 173(a) under the Securities Act), (i) the Company will notify
Canaccord promptly of the time when any subsequent amendment to the Registration Statement
has been filed with the Commission and has become effective (each, a “Registration
Statement Amendment Date”) or any subsequent supplement to the Prospectus has
been filed and of any request by the Commission for any amendment or supplement to the
Registration Statement or Prospectus or for additional information; (ii) the Company
will file promptly all other material required to be filed by it with the Commission
pursuant to Rule 433(d) under the Securities Act; (iii) it will prepare and file with
the Commission, promptly upon Canaccord’s request, any amendments or supplements
to the Registration Statement or Prospectus that, in Canaccord’s reasonable opinion,
may be necessary or advisable in connection with the distribution of the Placement Shares
by Canaccord (provided, however, that the failure of Canaccord to make such request shall
not relieve the Company of any obligation or liability hereunder, or affect Canaccord’s
right to rely on the representations and warranties made by the Company in this Agreement);
(iv) the Company will submit to Canaccord a copy of any amendment or supplement to the
Registration Statement or Prospectus a reasonable period of time before the filing thereof
and will afford Canaccord and Canaccord’s counsel a reasonable opportunity to comment
on any such proposed filing prior to such proposed filing; and (v) it will furnish to
Canaccord at the time of filing thereof a copy of any document that upon filing is deemed
to be incorporated by reference in the Registration Statement or Prospectus; and the
Company will cause each amendment or supplement to the Prospectus to be filed with the
Commission as required pursuant to the applicable paragraph of Rule 424 (b) of the Rules
and Regulations or, in the case of any document to be incorporated therein by reference,
to be filed with the Commission as required pursuant to the Exchange Act, within the
time period prescribed. |
| (b) | Notice
of Commission Stop Orders. The Company will advise Canaccord, 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 Prospectus or other prospectus in respect of the Shares,
of any notice of objection of the Commission to the use of the form of the Registration
Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Securities Act, of the suspension of the qualification of the Shares 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 form of the Registration Statement or the Prospectus or for additional information;
and, in the event of the issuance of any such stop order or of any such order preventing
or suspending the use of the Prospectus in respect of the Shares or suspending any such
qualification, to promptly use its commercially reasonable efforts to obtain the withdrawal
of such order; and in the event of any such issuance of a notice of objection, promptly
to take such reasonable steps as may be necessary to permit offers and sales of the Placement
Shares by Canaccord, which may include, without limitation, amending the Registration
Statement or filing a new registration statement, at the Company’s expense (references
herein to the Registration Statement shall include any such amendment or new registration
statement). |
| (c) | Delivery
of Prospectus; Subsequent Changes. Within the time during which a prospectus relating
to the Shares is required to be delivered by Canaccord under the Securities Act (including
in circumstances where such requirement may be satisfied pursuant to Rule 172 or Rule
173(a) under the Securities Act), the Company will comply with all requirements imposed
upon it by the Securities Act and by the Rules and Regulations, as from time to time
in force, and will file on or before their respective due dates all reports required
to be filed by it with the Commission pursuant to Sections 13(a), 13(c), 15(d), if applicable,
or any other provision of or under the Exchange Act. If during such period any event
occurs as a result of which the Prospectus as then amended or supplemented would include
an untrue statement of material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances then existing, not misleading,
or if during such period it is necessary to amend or supplement the Registration Statement
or Prospectus to comply with the Securities Act, the Company will immediately notify
Canaccord to suspend the offering of Shares during such period and the Company will promptly
amend or supplement the Registration Statement or Prospectus (at the expense of the Company)
so as to correct such statement or omission or effect such compliance. |
| (d) | Trading
Market Filings. In connection with the offering and sale of the Placement Shares,
the Company will file with each of the NASDAQ Capital Market and the Toronto Stock Exchange
all documents and notices, and make all certifications, required by each such exchange
of companies that have securities that are listed on each such exchange. |
| (e) | Listing
of Placement Shares. The Company will use commercially reasonable efforts to cause
the Placement Shares to be listed on each of the NASDAQ Capital Market or the Toronto
Stock Exchange (together, the “Principal Trading Markets”) and to
qualify the Placement Shares for sale under the securities laws of such jurisdictions
as Canaccord designates and to continue such qualifications in effect so long as required
for the distribution of the Placement Shares; provided that the Company shall not be
required in connection therewith to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction. |
| (f) | Delivery
of Registration Statement and Prospectus. The Company will furnish to Canaccord and
its counsel (at the expense of the Company) copies of the Registration Statement, the
Prospectus (including all documents incorporated by reference therein) and all amendments
and supplements to the Registration Statement or Prospectus that are filed with the Commission
during the period in which a prospectus relating to the Shares is required to be delivered
under the Securities Act (including all documents filed with the Commission during such
period that are deemed to be incorporated by reference therein), in each case as soon
as reasonably practicable and in such quantities as Canaccord may from time to time reasonably
request and, at Canaccord’s request, will also furnish copies of the Prospectus
to each exchange or market on which sales of Placement Shares may be made. |
| (h) | Earnings
Statement. The Company will make generally available to its security holders as soon
as practicable, but in any event not later than 15 months after the end of the Company’s
current fiscal quarter, an earnings statement covering a 12-month period that satisfies
the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations. |
| (i) | The
Company, whether or not the transactions contemplated hereunder are consummated or this
Agreement is terminated, will pay all expenses incident to the performance of its obligations
hereunder, including but not limited to (i) the preparation, printing and filing of the
Registration Statement and each amendment and supplement thereto, of each Prospectus
and of each amendment and supplement thereto and each Issuer Free Writing Prospectus
(as defined in Section 8 of this Agreement), (ii) the preparation, issuance and
delivery of the Placement Shares, (iii) all fees and disbursements of the Company’s
counsel, accountants and other advisors, (iv) the qualification of the Placement Shares
under securities laws in accordance with the provisions of Section 7(e) of this
Agreement, including filing fees in connection therewith, (v) the printing and delivery
to Canaccord of copies of the Prospectus and any amendments or supplements thereto, and
of this Agreement, (vi) the fees and expenses incurred in connection with the listing
or qualification of the Placement Shares for trading on each of the Principal Trading
Markets, and (vii) any filing fees related to the Commission and FINRA. |
| (ii) | Notwithstanding
the foregoing, the Company shall reimburse Canaccord for all of its reasonable expenses,
up to a maximum reimbursement of $50,000, arising out of this Agreement (including travel
and related expenses, the costs of document preparation, production and distribution,
third party research and database services and the reasonable fees and disbursements
of counsel to Canaccord) within ten (10) days of the presentation by Canaccord to the
Company of a reasonably detailed statement therefor. |
| (j) | Use
of Proceeds. The Company will use the net proceeds as described in the Prospectus. |
| (k) | Other
Sales. Without the prior written consent of Canaccord (which consent shall not be
unreasonably withheld), the Company will not (A) directly or indirectly, offer to sell,
sell, announce the intention to sell, contract to sell, pledge, lend, grant or sell any
option, right or warrant to sell or any contract to purchase, purchase any contract or
option to sell or otherwise transfer or dispose of any Common Shares (other than the
Shares offered pursuant to the provisions of this Agreement) or securities convertible
into or exchangeable for Common Shares, warrants or any rights to purchase or acquire,
Common Shares or file any registration statement under the Securities Act with respect
to any of the foregoing (other than a registration statement on Form S-8), or (B) enter
into any swap or other agreement or any transaction that transfers in whole or in part,
directly or indirectly, any of the economic consequence of ownership of the Common Shares,
or any securities convertible into or exchangeable or exercisable for or repayable with
Common Shares, whether any such swap or transaction described in clause (A) or (B) above
is to be settled by delivery of Common Shares or such other securities, in cash or otherwise,
during the period beginning on the fifth (5th) Business Day immediately prior to the
date on which any Placement Notice is delivered by the Company hereunder and ending on
the fifth (5th) Business Day immediately following the final Settlement Date with respect
to Placement Shares sold pursuant to such Placement Notice. The foregoing sentence shall
not apply to (i) Common Shares, options to purchase Common Shares or Common Shares issuable
upon the exercise of options, restricted share awards, restricted share unit awards,
Common Shares issuable upon vesting of restricted share unit awards, or other equity
awards or Common Shares issuable upon exercise or vesting of equity awards, pursuant
to any employee or director (x) equity award or benefits plan or otherwise approved by
the Company’s Board of Directors, (y) share ownership or share purchase plan or
(z) dividend reinvestment plan (but not shares subject to a waiver to exceed plan limits
in its dividend reinvestment plan) of the Company whether now in effect or hereafter
implemented, and (ii) Common Shares issuable upon conversion of securities or the exercise
of warrants, options or other rights in effect or outstanding on the date hereof. |
| (l) | Change
of Circumstances. The Company will, at any time a Placement Notice is outstanding,
advise Canaccord immediately after it shall have received notice or obtained knowledge
thereof, of any information or fact that would alter or affect any opinion, certificate,
letter or other document provided to Canaccord in connection with such Placement Notice;
and without the prior written consent of Canaccord (which consent shall not be unreasonably
withheld), the Company will not directly or indirectly in any other “at the market”
or continuous equity transaction offer to sell, sell, contract to sell, grant any option
to sell or otherwise dispose of any Common Shares (other than the Placement Shares offered
pursuant to the provisions of this Agreement) or securities convertible into or exchangeable
for Common Shares, warrants or any rights to purchase or acquire, Common Shares prior
to the later of the termination of this Agreement and the tenth (10th) day immediately
following the final Settlement Date with respect to Placement Shares sold pursuant to
such Placement Notice; provided, however, that such restrictions will not be applicable
to the Company’s issuance or sale of (i) Common Shares, options to purchase Common
Shares or Common Shares issuable upon the exercise of options, restricted share awards,
restricted share unit awards, Common Shares issuable upon vesting of restricted share
unit awards, or other equity awards or Common Shares issuable upon exercise or vesting
of equity awards, pursuant to any employee or director (x) equity award or benefits plan
or otherwise approved by the Company’s Board of Directors, (y) share ownership
or share purchase plan or (z) dividend reinvestment plan (but not shares subject to a
waiver to exceed plan limits in its dividend reinvestment plan) of the Company whether
now in effect or hereafter implemented, and (ii) Common Shares issuable upon conversion
of securities or the exercise of warrants, options or other rights in effect or outstanding
on the date hereof. |
| (m) | Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence
review conducted by Canaccord or its agents, including, without limitation, providing
information and making available documents and the Company’s senior corporate officers,
as Canaccord may reasonably request; provided, however, that the Company shall be required
to make available senior corporate officers only (i) by telephone or at the Company’s
principal offices and (ii) during the Company’s ordinary business hours. |
| (n) | Affirmation
of Representations, Warranties, Covenants and Other Agreements. Upon commencement
of the offering of the Placement Shares under this Agreement (and upon the recommencement
of the offering of the Placement Shares under this Agreement following any termination
of a suspension of sales hereunder), and at each Applicable Time, the Company shall be
deemed to have affirmed each representation, warranty, covenant and other agreement contained
in this Agreement. |
| (o) | Required
Filings Relating to Placement of Placement Shares. In each Annual Report on Form
10-K or Quarterly Report on Form 10-Q filed by the Company in respect of any quarter
in which sales of Placement Shares were made by Canaccord under this Agreement (each
date on which any such document is filed, and any date on which an amendment to any such
document is filed, a “Company Periodic Report Date”), the Company
shall set forth with regard to such quarter the number of Shares sold through the Canaccord
under this Agreement, the Net Proceeds received by the Company and the compensation paid
by the Company to Canaccord with respect to sales of Placement Shares pursuant to this
Agreement. |
| (p) | Representation
Dates; Certificate. During the term of this Agreement, on the date of each Placement
Notice given hereunder, promptly upon each request of Canaccord, and each time the Company
(i) files the Prospectus relating to the Placement Shares or amends or supplements the
Registration Statement or the Prospectus relating to the Placement Shares by means of
a post-effective amendment, sticker, or supplement but not by means of incorporation
of document(s) by reference to the Registration Statement or the Prospectus relating
to the Placement Shares; (ii) files an annual report on Form 10-K under the Exchange
Act; (iii) files its quarterly reports on Form 10-Q under the Exchange Act; or (iv) files
a report on Form 8-K containing amended financial information (other than an earnings
release, to “furnish” information pursuant to Items 2.02 or 7.01 of Form
8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassifications
of certain properties as discontinued operations in accordance with Statement of Financial
Accounting Standards No. 144) under the Exchange Act (each date of filing of one or more
of the documents referred to in clauses (i) through (iv) shall be a “Representation
Date”); the Company shall furnish Canaccord with a certificate, in the form
attached hereto as Exhibit A. The requirement to provide a certificate under this
Section 7(p) shall be waived for any Representation Date occurring at a time at
which no Placement Notice is pending, which waiver shall continue until the earlier to
occur of the date the Company delivers a Placement Notice hereunder (which for such calendar
quarter shall be considered a Representation Date) and the next occurring Representation
Date following the delivery of such Placement Notice; provided, however, that such waiver
shall not apply for any Representation Date on which the Company files its annual report
on Form 10-K. |
| | | |
| | | Notwithstanding
the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied
on such waiver and did not provide Canaccord with a certificate under this Section 7(p), then before the Company delivers
the Placement Notice or Canaccord sells any Placement Shares, the Company shall provide Canaccord with a certificate, in the form
attached hereto as Exhibit A, dated the date of the Placement Notice. |
| (q) | Legal
Opinions. Upon effectiveness of the Registration Statement, upon the recommencement
of the offering of Placement Shares under this Agreement following any termination of
a suspension of sales hereunder, and within three (3) trading days of each Representation
Date with respect to which the Company is obligated to deliver a certificate in the form
attached hereto as Exhibit A for which no waiver is applicable, the Company will
furnish or cause to be furnished to Canaccord and to counsel to Canaccord (i) the written
opinion and negative assurance letters of Xxxxxxxx, Xxxxxxxxxx & Xxxxx LLP, US counsel
to the Company, and (ii) the written opinion of Xxxxxx Xxxxxx Gervais LLP, Canadian counsel
to the Company, each dated the date the opinions or letter are required to be delivered,
as the case may be, in a form and substance reasonably satisfactory to Canaccord and
its counsel, or, in lieu of such opinions and letter, counsel last furnishing such opinions
and letter to Canaccord shall furnish Canaccord with a letter substantially to the effect
that Canaccord may rely on such last opinions and letter to the same extent as though
each were dated the date of such letter authorizing reliance (except that statements
in such last opinions and letter shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance). Upon effectiveness of the Registration Statement, the Company
will furnish or cause to be furnished to Canaccord and to counsel to Canaccord the written
opinion of Xxxxxx, Xxxx & Xxxxxxx LLP, U.S. intellectual property counsel for the
Company, dated the date of this Agreement in a form and substance reasonably satisfactory
to Canaccord and its counsel. |
| (r) | Comfort
Letters. Upon effectiveness of the Registration Statement, upon the recommencement
of the offering of the Placement Shares under this Agreement following any termination
of a suspension of sales hereunder, and within three (3) trading days of each Representation
Date with respect to which the Company is obligated to deliver a certificate in the form
attached hereto as Exhibit A for which no waiver is applicable, the Company shall
cause its independent accountants reasonably satisfactory to Canaccord, to furnish Canaccord
letters dated the date of effectiveness of the Registration Statement or the date of
such recommencement or the date of such Representation Date (but in the case of clauses
(i) and (iv) of Section 7(p) above, only if Canaccord reasonably determines that the
information contained in such filings with the Commission contains a material change
in the financial disclosure of the Company), as the case may be (the “Comfort
Letters”), in form and substance satisfactory to Canaccord, (i) confirming
that they are registered independent public accountants within the meaning of the Securities
Act and are in compliance with the applicable requirements relating to the qualification
of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as
of such date, the conclusions and findings of such firm with respect to the financial
information and other matters included in or incorporated by reference in the Registration
Statement as ordinarily covered by accountants’ “comfort letters” to
underwriters in connection with registered public offerings (the first such letters,
the “Initial Comfort Letters”) and (iii) updating the Initial Comfort
Letters with any information which would have been included in the Initial Comfort Letters
had it been given on such date and modified as necessary to relate to the Registration
Statement and the Prospectus, as amended and supplemented to the date of such letters. |
| (s) | Market
Activities. The Company will not, directly or indirectly, (i) take any action designed
to cause or result in, or that constitutes or might reasonably be expected to constitute,
the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares or (ii) sell, bid for, or purchase the Shares, or pay
anyone any compensation for soliciting purchases of the Shares other than Canaccord. |
| (t) | Insurance.
The Company and its Subsidiaries shall maintain, or cause to be maintained, insurance
in such amounts and covering such risks as is reasonable and customary for companies
engaged in similar businesses in similar industries. |
| (u) | Compliance
with Laws. The Company and its Subsidiaries shall comply with all applicable federal,
state and local or foreign law, rule, regulation, ordinance, order or decree, except
where failure to so comply would not reasonably be expected to have a Material Adverse
Effect. Furthermore, the Company and its Subsidiaries shall maintain, or cause to be
maintained, all material environmental permits, licenses and other authorizations required
by federal, state and local law in order to conduct their businesses as described in
the Prospectus, and the Company and its Subsidiaries shall conduct their businesses,
or cause their businesses to be conducted, in substantial compliance with such permits,
licenses and authorizations and with applicable environmental laws, except where the
failure to maintain or be in compliance with such permits, licenses and authorizations
would not reasonably be expected to have a Material Adverse Effect. |
| (v) | Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably
ensure that neither it nor the Subsidiaries will be or become, at any time prior to the
termination of this Agreement, an “investment company,” as such term is defined
in the Investment Company Act, assuming no change in the Commission’s current interpretation
as to entities that are not considered an investment company. |
| (w) | Securities
Act and Exchange Act. The Company will use commercially reasonable efforts to comply
with all requirements imposed upon it by the Securities Act and the Exchange Act as from
time to time in force, so far as necessary to permit the continuance of sales of, or
dealings in, the Shares as contemplated by the provisions hereof and the Prospectus. |
| (x) | No
Offer to Sell. Other than a free writing prospectus (as defined in Rule 405 under
the Securities Act) approved in advance by the Company and Canaccord in its capacity
as principal or agent hereunder, neither Canaccord nor the Company (including its agents
and representatives, other than Canaccord in its capacity as such) will make, use, prepare,
authorize, approve or refer to any written communication (as defined in Rule 405 under
the Securities Act), required to be filed by it with the Commission, that constitutes
an offer to sell or solicitation of an offer to buy Common Shares hereunder. |
| (y) | Xxxxxxxx-Xxxxx
Act. The Company and the Subsidiaries will use their commercially reasonable efforts
to comply with all effective applicable provisions of the Xxxxxxxx-Xxxxx Act. |
| (z) | Consent
to Canaccord Trading. The Company consents to Canaccord trading in the Common Shares
of the Company for Canaccord’s own account and for the account of its clients at
the same time as sales of Placement Shares occur pursuant to this Agreement. |
| (aa) | Rescission
Offers. If, to the knowledge of the Company, all filings required by Rule 424 in
connection with this offering shall not have been made or the representation in Section
6 shall not be true and correct on the applicable Settlement Date, the Company will
offer to any person who has agreed to purchase Placement Shares from the Company as the
result of an offer to purchase solicited by Canaccord the right to refuse to purchase
and pay for such Placement Shares. |
| (bb) | Actively
Traded Security. If, at the time of execution of this Agreement, the Company’s
Common Shares is not an “actively traded security” exempted from the requirements
of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule,
the Company shall notify Canaccord at the time the Common Shares become an “actively
traded security” under such rule. Furthermore, the Company shall notify Canaccord
immediately if the Common Shares, having once qualified for such exemption, cease to
so qualify. |
8. Additional
Representations and Covenants of the Company.
| (i) | The
Company represents that it has not made, and covenants that, unless it obtains the prior
written consent of Canaccord, it will not make any offer relating to the Shares that
would constitute an Issuer Free Writing Prospectus required to be filed by it with the
Commission or retained by the Company under Rule 433 of the Securities Act; except as
set forth in a Placement Notice, no use of any Issuer Free Writing Prospectus has been
consented to by Canaccord. The Company agrees that it will comply with the requirements
of Rules 164 and 433 of the Securities Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission or retention where required and legending. |
| (ii) | The
Company agrees that no Issuer Free Writing Prospectus, if any, will include any information
that conflicts with the information contained in the Registration Statement, including
any document incorporated by reference therein that has not been superseded or modified,
or the Prospectus. In addition, no Issuer Free Writing Prospectus, if any, will include
an untrue statement of a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under which they were made,
not misleading; provided however, the foregoing shall not apply to any statements or
omissions in any Issuer Free Writing Prospectus made in reliance on information furnished
in writing to the Company by Canaccord intended for use therein. |
| (iii) | The
Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus
any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, including any document
incorporated by reference therein that has not been superseded or modified, or the Prospectus
or would include an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading, the Company will give prompt notice thereof to Canaccord and,
if requested by Canaccord, will prepare and furnish without charge to Canaccord an Issuer
Free Writing Prospectus or other document which will correct such conflict, statement
or omission; provided, however, the foregoing shall not apply to any statements or omissions
in any Issuer Free Writing Prospectus made in reliance on information furnished in writing
to the Company by Canaccord intended for use therein. |
| (b) | Non-Issuer
Free Writing Prospectus. The Company consents to the use by Canaccord of a free writing
prospectus that (a) is not an “Issuer Free Writing Prospectus” as defined
in Rule 433 under the Securities Act, and (b) contains only information describing the
preliminary terms of the Shares or their offering, or information permitted under Rule
134 under the Securities Act; provided that Canaccord covenants with the Company not
to take any action that would result in the Company being required to file with the Commission
under Rule 433(d) under the Securities Act a free writing prospectus prepared by or on
behalf of Canaccord that otherwise would not be required to be filed by the Company thereunder,
but for the action of Canaccord and the Company shall have consented to the form and
substance of such free writing prospectus prior to its use by Canaccord. |
| (c) | Distribution
of Offering Materials. The Company has not distributed and will not distribute, during
the term of this Agreement, any offering materials in connection with the offering and
sale of the Placement Shares other than the Registration Statement, Prospectus or any
Issuer Free Writing Prospectus reviewed and consented to by Canaccord and included in
a Placement Notice (as described in clause (a)(i) above). |
9. Conditions
to Canaccord’s Obligations. The obligations of Canaccord hereunder with respect to a Placement will be subject to the
continuing accuracy and completeness of the representations and warranties made by the Company herein and in the applicable Placement
Notices, to the due performance by the Company of its obligations hereunder, to the completion by Canaccord of a due diligence
review satisfactory to Canaccord in its reasonable judgment, and to the continuing satisfaction (or waiver by Canaccord in its
sole discretion) of the following additional conditions:
| (a) | Registration
Statement Effective. The Registration Statement shall have become effective and shall
be available for the sale of (i) all Placement Shares issued pursuant to all prior Placements
and not yet sold by Canaccord and (ii) all Placement Shares contemplated to be issued
by the Placement Notice relating to such Placement. |
| (b) | No
Material Notices. None of the following events shall have occurred and be continuing:
(i) receipt by the Company of any request for additional information from the Commission
or any other federal or state or foreign or other governmental, administrative or self-regulatory
authority during the period of effectiveness of the Registration Statement, the response
to which might reasonably require any amendments or supplements to the Registration Statement
or the Prospectus; (ii) the issuance by the Commission or any other federal or state
or foreign or other governmental authority of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that purpose;
(iii) receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose; (iv) the occurrence
of any event that makes any statement made in the Registration Statement or the Prospectus
or any document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in the Registration
Statement, related prospectus or documents so that, in the case of the Registration Statement,
it 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 in the case of the Prospectus, it 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; and (v) the Company’s reasonable determination that a post-effective
amendment to the Registration Statement would be appropriate. |
| (c) | No
Misstatement or Material Omission. Canaccord shall not have advised the Company that
the Registration Statement or Prospectus, or any amendment or supplement thereto, contains
an untrue statement of fact that in Canaccord’s opinion is material, or omits to
state a fact that in Canaccord’s opinion is material and is required to be stated
therein or is necessary to make the statements therein not misleading. |
| (d) | Material
Changes. Except as contemplated and appropriately disclosed in the Prospectus, or
disclosed in the Company’s reports filed with the Commission, in each case at the
time the applicable Placement Notice is delivered, there shall not have been any material
change, on a consolidated basis, in the authorized capital shares of the Company and
its Subsidiaries, or any Material Adverse Effect, or any development that may reasonably
be expected to cause a Material Adverse Effect, or a downgrading in or withdrawal of
the rating assigned to any of the Company’s securities by any rating organization
or a public announcement by any rating organization that it has under surveillance or
review its rating of any of the Company’s securities, the effect of which, in the
sole judgment of Canaccord (without relieving the Company of any obligation or liability
it may otherwise have), is so material as to make it impracticable or inadvisable to
proceed with the offering of the Placement Shares on the terms and in the manner contemplated
in the Prospectus. |
| (e) | Certificate.
Canaccord shall have received the certificate required to be delivered pursuant to Section
7(p) on or before the date on which delivery of such certificate is required pursuant
to Section 7(p). |
| (f) | Legal
Opinions. Canaccord shall have received the opinions and letters of counsel to the
Company required to be delivered pursuant Section 7(q) on or before the date on
which such delivery of such opinions and letters are required pursuant to Section
7(q). In addition, Canaccord shall have received a negative assurance letter of Xxxxxxx
Procter LLP, counsel to Canaccord, on such dates and with respect to such matters as
Canaccord may reasonably request. |
| (g) | Comfort
Letters. Canaccord shall have received the Comfort Letters required to be delivered
pursuant Section 7(r) on or before the date on which such delivery of such letters
are required pursuant to Section 7(r). |
| (h) | Approval
for Listing; No Suspension. The Placement Shares shall have either been (i) approved
for listing, subject to notice of issuance, on each of the Principal Trading Markets,
or (ii) the Company shall have filed an application for listing of the Placement Shares
on each of the Principal Trading Markets at or prior to the issuance of the Placement
Notice. Trading in the Common Shares shall not have been suspended on either such market. |
| (i) | Other
Materials. On each date on which the Company is required to deliver a certificate
pursuant to Section 7(p), the Company shall have furnished to Canaccord such appropriate
further information, certificates, opinions and documents as Canaccord may reasonably
request. All such opinions, certificates, letters and other documents will be in compliance
with the provisions hereof. The Company will furnish Canaccord with such conformed copies
of such opinions, certificates, letters and other documents as Canaccord shall reasonably
request. |
| (j) | Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the
Securities Act to have been filed prior to the issuance of any Placement Notice hereunder
shall have been made within the applicable time period prescribed for such filing by
Rule 424. |
| (k) | No
Termination Event. There shall not have occurred any event that would permit Canaccord
to terminate this Agreement pursuant to Section 12(a). |
10. Indemnification
and Contribution.
| (a) | Company
Indemnification. The Company will indemnify and hold harmless Canaccord and each
person, if any, who controls Canaccord against any losses, claims, damages or liabilities,
joint or several, to which Canaccord or controlling person may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement,
the Prospectus, the Disclosure Package, or any Issuer Free Writing Prospectus or any
“issuer information” filed or required to be filed pursuant to Rule 433(d)
under the Securities Act, or any amendment or supplement to the Registration Statement,
the Prospectus or the Disclosure Package, or in any application or other document executed
by or on behalf of the Company or based on written information furnished by or on behalf
of the Company filed in any jurisdiction in order to qualify the Placement Shares under
the securities laws thereof or filed with the Commission, or arise out of or are based
upon the omission or alleged omission to state in the Registration Statement, the Prospectus,
the Disclosure Package, or any Issuer Free Writing Prospectus or any “issuer information”
filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or any
amendment or supplement to the Registration Statement, the Prospectus, or the Disclosure
Package or in any application or other document executed by or on behalf of the Company
or based on written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Placement Shares under the securities laws thereof
or filed with the Commission a material fact required to be stated in it or necessary
to make the statements in it not misleading, and will reimburse Canaccord for any reasonable
legal expenses of counsel for Canaccord and one set of local counsel in each applicable
jurisdiction for Canaccord, and for other expenses reasonably incurred by Canaccord in
connection with investigating or defending any such action or claim as such 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 or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Prospectus or the Disclosure Package, or any
such amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by and through Canaccord expressly for use therein. |
| (b) | Canaccord
Indemnification. Canaccord will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement (or
any amendments thereto), the Prospectus (or any amendment or supplement thereto), the
Disclosure Package, any Issuer Free Writing Prospectus or any non-Issuer Free Writing
Prospectus used pursuant to Section 8(b), or arise out of or are based upon the
omission or alleged omission to state therein a material fact, in the case of the Registration
Statement or any amendment thereto, required to be stated therein or necessary to make
the statements therein not misleading and, in the case of the Prospectus or any supplement
thereto, the Disclosure Package, the Issuer Free Writing Prospectus or any non-Issuer
Free Writing Prospectus, necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement (or any amendments thereto), the Prospectus
(or any amendment or supplement thereto), the Disclosure Package, any Issuer Free Writing
Prospectus, or any non-Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to the Company by and through Canaccord expressly
for use therein; and will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such action
or claim as such expenses are incurred. |
| (c) | Procedure.
Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection, promptly
notify such indemnifying party in writing of the institution of such action and such
indemnifying party shall assume the defense of such action, including the employment
of counsel reasonably satisfactory to such indemnified party and payment of all fees
and expenses; provided, however, that the failure to so notify such indemnifying party
shall not relieve such indemnifying party from any liability which such indemnifying
party may have to any indemnified party or otherwise. (The indemnified party or parties
shall have the right to employ its or their own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such indemnified party or parties
unless the employment of such counsel shall have been authorized in writing by the indemnifying
party in connection with the defense of such action or the indemnifying party shall not
have, within a reasonable period of time in light of the circumstances, employed counsel
to defend such action or such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different from, additional
to or in conflict with those available to such indemnifying party (in which case such
indemnifying party shall not have the right to direct the defense of such action on behalf
of the indemnified party or parties), in any of which events such fees and expenses shall
be borne by such indemnifying party and paid as incurred (it being understood, however,
that such indemnifying party shall not be liable to the expenses of more than one separate
counsel (in addition to any local counsel) in any one action or series of related actions
in the same jurisdiction representing the indemnified parties who are parties to such
action). No indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified party is an actual
or potential party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the 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.
No indemnifying party shall be liable for any settlement of any action or claim affected
without its written consent, which consent shall not be unreasonably withheld. |
| (d) | Contribution.
If the indemnification provided for in this Section 10 is unavailable to or insufficient
to hold harmless an indemnified party under subsection (a) or (b) above in respect of
any losses, claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and Canaccord on the other from the
offering of the Placement Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party in such proportion
as is appropriate to reflect not only such relative benefits but also the relative fault
of the Company on the one hand and Canaccord on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and Canaccord on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company, bear to the total underwriting discounts,
commissions and other fees received by Canaccord. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged 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 Canaccord on the other and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and Canaccord agree that it would not be just
and equitable if contributions pursuant to this subsection (d) were determined by pro
rata allocation or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim. Notwithstanding
the provisions of this subsection (d), Canaccord shall not be required to contribute
any amount in excess of the amount by which the total price at which the Placement Shares
distributed to the public by it were offered to the public exceeds the amount of any
damages which Canaccord has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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. |
| (e) | Obligations.
The obligations of the Company under this Section 10 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls Canaccord within the meaning of
the Securities Act; and the obligations of Canaccord under this Section 10 shall
be in addition to any liability which Canaccord may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company and to
each person, if any, who controls the Company within the meaning of the Securities Act. |
11. Representations
and Agreements to Survive Delivery. All representations and warranties of the Company herein or in certificates delivered
pursuant hereto shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of
Canaccord, any controlling persons, or the Company (or any of their respective officers, directors or controlling persons), (ii)
delivery and acceptance of the Placement Shares and payment therefor or (iii) any termination of this Agreement.
12. Termination.
| (a) | Canaccord
shall have the right to terminate this Agreement at any time by giving notice as hereinafter
specified if (i) any Material Adverse Effect has occurred, or any development that is
reasonably expected to cause a Material Adverse Effect has occurred or any other event
has occurred which, in the sole judgment of Canaccord, may materially impair Canaccord’s
ability to proceed with the offering to sell the Shares, (ii) the Company shall have
failed, refused or been unable, at or prior to any Settlement Date, to perform any agreement
on its part to be performed hereunder, (iii) any other condition of Canaccord’s
obligations hereunder is not fulfilled, or (iv) any suspension or limitation of trading
in the Common Shares of the Company on either of the Principal Trading Markets shall
have occurred. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 7(j) (Expenses), Section 10
(Indemnification), Section 11 (Survival of Representations), Section 12(f)
(Termination), Section 17 (Applicable Law; Consent to Jurisdiction) and Section
18 (Waiver of Jury Trial) hereof shall remain in full force and effect notwithstanding
such termination. If Canaccord elects to terminate this Agreement as provided in this
Section 12(a), Canaccord shall provide the required notice as specified in Section
13 (Notices). |
| (b) | The
Company shall have the right to terminate this Agreement in its sole discretion at any
time by giving ten (10) days’ notice as hereinafter specified. Any such termination
shall be without liability of any party to any other party except that the provisions
of Section 7(j), Section 10, Section 11, Section 12(f), Section
17 and Section 18 hereof shall remain in full force and effect notwithstanding
such termination. |
| (c) | In
addition to, and without limiting Canaccord’s rights under Section 12(a),
Canaccord shall have the right to terminate this Agreement in its sole discretion at
any time after the date of this Agreement by giving ten (10) days’ notice as hereinafter
specified. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 7(j), Section 10, Section
11, Section 12(f), Section 17 and Section 18 hereof shall remain
in full force and effect notwithstanding such termination. |
| (d) | This
Agreement shall remain in full force and effect unless terminated pursuant to Sections
12(a), 12(b) or 12(c) above or otherwise by mutual agreement of the
parties; provided that any such termination by mutual agreement shall in all cases be
deemed to provide that Section 7(j), Section 10, Section 11, Section
12(f), Section 17 and Section 18 shall remain in full force and effect. |
| (e) | Any
termination of this Agreement shall be effective on the date specified in such notice
of termination; provided that such termination shall not be effective until the close
of business on the date of receipt of such notice by Canaccord or the Company, as the
case may be. If such termination shall occur prior to the Settlement Date for any sale
of Placement Shares, such Placement Shares shall settle in accordance with the provisions
of this Agreement. |
| (f) | In
the event that the Company terminates this Agreement, as permitted under Section 12(b),
the Company shall be under no continuing obligation pursuant to this Agreement to utilize
the services of Canaccord in connection with any sale of securities of the Company or
to pay any compensation to Canaccord other than compensation with respect to sales of
Placement Shares subscribed on or before the termination date and the Company shall be
free to engage other placement agents and underwriters from and after the termination
date with no continuing obligation to Canaccord. |
13. Notices.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of
this Agreement shall be in writing and if sent to Canaccord, shall be delivered to:
Canaccord
Genuity Inc.
00
Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
ECM, General Counsel
E-mail:
xxxxxx@xxxxxxxxxxxxxxxx.xxx; xxxxxx@xxxxxxxxxxxxxxxx.xxx
With
a copy to:
Xxxxxxx
Procter LLP
The
New York Times Building
000
Xxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxx X. Xxxxxx, Esq.
E-mail:
XXxxxxx@xxxxxxxxxx.xxx
or
if sent to the Company, shall be delivered to:
VBI
Vaccines Inc.
000
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention:
Chief Financial Officer
E-mail:
XXxxxxxxxxx@xxxxxxxxxxx.xxx
With
a copy to:
Xxxxxxxx,
Xxxxxxxxxx & Xxxxx LLP
00000
X. Xxxxxxx Xxxx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
E-mail:
xxx@xxx.xxx
Xxxxxx
Xxxxxx Xxxxxxx XXX
0000
Xxxxxxxxxx Xxxxxx
000
Xxxxxxx Xxxxxx
X.X.
Xxx 00000
Xxxxxxxxx
XX X0X 0X0
Xxxxxx
Attention:
Xxxxxx Xxxxxxxxxx
E-mail:
XXxxxxxxxxx@xxx.xxx
Each
party to this Agreement may change such address for notices by sending to the other party to this Agreement written notice of
a new address for such purpose. Each such notice or other communication shall be deemed given (i) when delivered personally or
by verifiable facsimile transmission (with an original to follow) on or before 4:30 p.m., eastern time, on a Business Day or,
if such day is not a Business Day, on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to
a nationally-recognized overnight courier, (iii) on the Business Day actually received if deposited in the U.S. mail (certified
or registered mail, return receipt requested, postage prepaid), and (iv) if sent by email, on the Business Day on which receipt
is confirmed by the individual to whom the notice is sent, other than via auto-reply. For purposes of this Agreement, “Business
Day” shall mean any day on which commercial banks in the cities of New York and Vancouver are open for business.
14. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and Canaccord and their respective
successors and the affiliates, controlling persons, officers and directors referred to in Section 10 hereof. References
to any of either of the parties contained in this Agreement shall be deemed to include the successors and permitted assigns of
such party. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto
or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or obligations under this Agreement
without the prior written consent of the other party, provided, however, that Canaccord may assign its rights and obligations
hereunder to an affiliate of Canaccord without obtaining the Company’s consent.
15. Adjustments
for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted
to take into account any share split, share dividend or similar event effected with respect to the Shares.
16. Entire
Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement Notices
issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings,
both written and oral, among the parties hereto with regard to the subject matter hereof except for the Nondisclosure Agreement
dated May 2, 2017. Neither this Agreement nor any term hereof may be amended except pursuant to a written instrument executed
by the Company and Canaccord. In the event that any one or more of the provisions contained herein, or the application thereof
in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.
17. Applicable
Law; Consent to Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the internal laws of
the State of New York without regard to the principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for the adjudication of any
dispute hereunder or in connection with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof (certified or registered mail, return receipt requested) to such party at the address
in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner
permitted by law.
18. Waiver
of Jury Trial. The Company and Canaccord hereby irrevocably waive any right either may have to a trial by jury in respect
of any claim based upon or arising out of this agreement or any transaction contemplated hereby.
19. Absence
of Fiduciary Duties. The parties acknowledge that they are sophisticated in business and financial matters and that each of
them is solely responsible for making its own independent investigation and analysis of the transactions contemplated by this
Agreement. They further acknowledge that Canaccord has not been engaged by the Company to provide, and has not provided, financial
advisory services in connection with the terms of the offering and sale of the Shares nor has Canaccord assumed at any time a
fiduciary relationship to the Company in connection with such offering and sale. The parties also acknowledge that the provisions
of this Agreement fairly allocate the risks of the transactions contemplated hereby among them in light of their respective knowledge
of the Company and their respective abilities to investigate its affairs and business in order to assure that full and adequate
disclosure has been made in the Registration Statement and the Prospectus (and any amendments and supplements thereto). The Company
hereby waives, to the fullest extent permitted by law, any claims it may have against Canaccord for breach of fiduciary duty or
alleged breach of fiduciary duty and agrees Canaccord 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 Company.
20. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile
or email transmission.
If
the foregoing accurately reflects your understanding and agreement with respect to the matters described herein please indicate
your agreement by countersigning this Agreement in the space provided below.
| |
Very truly yours, |
| |
|
|
| |
VBI VACCINES INC. |
| |
|
|
| ’ |
By: |
/s/
Xxxx Xxxxxx |
| |
Name: |
Xxxx
Xxxxxx |
| |
Title: |
CEO |
| |
ACCEPTED |
| |
as of the date first-above written: |
| |
|
|
| |
CANACCORD GENUITY INC. |
| |
|
|
| |
By:
|
/s/
Xxxxxxxx Xxxxx |
| |
Name:
|
Xxxxxxxx
Xxxxx |
| |
Title: |
Senior
Managing Director |
[Signature
page to Equity Distribution Agreement]
SCHEDULE
1
The
Authorized Representatives of the Company are as follows:
| Name
and Office / Title |
|
E-mail
Address |
|
Telephone
Numbers |
|
Fax
Number |
Xxxx
Xxxxxx,
President
& CEO |
|
xxxxxxx@xxxxxxxxxxx.xxx |
|
Office:
[REDACTED]
Cell:
[REDACTED] |
|
000-000-0000 |
| |
|
|
|
|
|
|
| Xxxxxx
Xxxxxxxxxx, CFO |
|
xxxxxxxxxxx@xxxxxxxxxxx.xxx |
|
Office:
[REDACTED]
Cell:
[REDACTED] |
|
000-000-0000 |
| |
|
|
|
|
|
|
| Xxxx
Xxxxxxx, Director, Corporate Development and IR |
|
xxxxxxxx@xxxxxxxxxxx.xxx |
|
Office:
[REDACTED]
Cell:
[REDACTED] |
|
000-000-0000 |
The
Authorized Representatives of Canaccord are as follows:
| Name
and Office / Title |
|
E-mail
Address |
|
Telephone
Numbers |
|
Fax
Number |
Xxxxxxxx
Xxxxx /
Head of U.S. Equity Capital Markets |
|
xxxxxx@xxxxxxxxxxxxxxxx.xxx
AND
XXxxx@xxxxxxxxxxxxxxxx.xxx
|
|
Office:
[REDACTED]
Cell:
[REDACTED] |
|
N/A |
EXHIBIT
A
OFFICER’S
CERTIFICATE
I,
[name of executive officer], the [title of executive officer] of VBI Vaccines Inc., a company incorporated
under the Business Corporations Act (British Columbia)(the “Company”), do hereby certify in such capacity
and on behalf of the Company pursuant to Section 7(p) of the Equity Distribution Agreement dated May 15, 2017 (the “Distribution
Agreement”) between the Company and Canaccord Genuity Inc., to the best of my knowledge that:
(i) The
representations and warranties of the Company in Section 6 of the Distribution Agreement (A) to the extent such representations
and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect,
are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof,
except for those representations and warranties that speak solely as of a specific date and which were true and correct as of
such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are
true and correct in all material respects as of the date hereof as if made on and as of the date hereof with the same force and
effect as if expressly made on and as of the date hereof except for those representations and warranties that speak solely as
of a specific date and which were true and correct as of such date; and
(ii) The
Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the
Distribution Agreement at or prior to the date hereof.
| Date:
|
________________ |
By: |
|
| |
|
Name: |
|
| |
|
Title: |
|
