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Schedule “A”
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Options, Warrants and Convertible Securities
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1.
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Appointment of Agent
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2.
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Filing of Final Prospectus
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(a)
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The Agent has complied and will comply, and shall require any investment dealer or broker, other than the Agent, with which the Agent has a contractual relationship in respect of the Distribution of the Offered Units (each a “Selling Firm”) to comply, with Applicable Securities Laws in connection with the Distribution of the Offered Units, and shall offer the Offered Units for sale to the public in the Qualifying Jurisdictions directly and through Selling Firms upon the terms and conditions set out in the Prospectus and this Agreement. The Agent has offered and will offer, and shall require any Selling Firm to offer, for sale to the public and sell the Offered Units only in those jurisdictions where they
may be lawfully offered for sale or sold.
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(b)
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The Agent shall, and shall require any Selling Firm to agree to, distribute the Offered Units in a manner which complies with and observes all Applicable Laws in each jurisdiction into and from which they may offer to sell Offered Units or distribute the Prospectus or any Supplementary Material in connection with the Distribution of the Offered Units and will not, directly or indirectly, offer, sell or deliver any Offered Units or deliver the Prospectus or any Supplementary Material to any person in any jurisdiction other than in the Qualifying Jurisdictions except in a manner which will not require the Corporation to comply with the registration, prospectus, filing or other similar requirements under the Applicable Laws relating to securities of such other
jurisdictions. For greater certainty, the Agent shall not sell or deliver Units in the United States or to U.S. Persons (as that term is defined under Applicable Laws in the United States relating to securities).
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(c)
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For the purposes of this Section 3, the Agent shall be entitled to assume that the Offered Units are qualified for Distribution in any Qualifying Jurisdiction where a receipt or similar document for the Final Prospectus shall have been obtained from the Canadian Securities Regulators following the filing of the Final Prospectus.
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(d)
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Upon the Corporation obtaining the necessary receipts therefor from the applicable regulatory authorities in the Qualifying Jurisdictions, the Agent shall deliver one copy of the Final Prospectus (together with any amendments thereto) to each person resident in the Qualifying Jurisdictions who is to acquire the Offered Units.
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(e)
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The Agent shall use all reasonable efforts to complete the Distribution of the Offered Units pursuant to the Prospectus as early as practicable and the Agent shall advise the Corporation in writing when, in the opinion of the Agent, it has completed the Distribution of the Offered Units and provide a breakdown of the number of Offered Units distributed and proceeds received in each of the Qualifying Jurisdictions where such breakdown is required for the purpose of calculating fees payable to the Securities Regulators.
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4.
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Deliveries
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(a)
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The Corporation shall deliver, or cause to be delivered, to the Agent:
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(i)
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on the date hereof, a copy of the Preliminary Prospectus and the Final Prospectus, each signed and certified as required by Applicable Securities Laws;
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(ii)
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concurrently with the filing of the Final Prospectus, a copy of any other document required to be filed by the Corporation under the laws of each of the Qualifying Jurisdictions in compliance with Applicable Securities Laws;
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(iii)
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prior to the filing of the Final Prospectus, a “long-form” comfort letter dated the date of the Final Prospectus, in form and substance satisfactory to the Agent, addressed to the Agent from the Corporation’s Auditors with respect to financial and accounting information relating to the Corporation contained in the Final Prospectus, which letter shall be based on a review completed not more than two Business Days prior to the date of the letter and which letter shall be in addition to the Corporation’s Auditors’ consent letter or comfort letter addressed to the Canadian Securities Regulators;
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(iv)
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prior to the filing of the Final Prospectus, copies of correspondence indicating that the application for the listing and posting for trading on the TSX of the Unit Shares, Warrant Shares, Compensation Shares and Compensation Warrant Shares issuable in connection with the Offering have been approved for listing subject only to satisfaction by the Corporation of certain standard post-closing conditions imposed by the TSX (the “Standard Listing Conditions”); as set out in its conditional approval letter in respect of the Offering dated July 19, 2011 (the “TSX Letter”); and
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(v)
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prior to the filing of any Supplementary Material with the Securities Regulators, a copy of such Supplementary Material signed and certified as required by Applicable Securities Laws. Concurrently with the delivery of any Supplementary Material, the Corporation shall deliver to the Agent and the Agent’s counsel, with respect to such Supplementary Material, opinions, comfort letters and such other documentation substantially equivalent or similar to those referred to in this Section 3, as appropriate or reasonably requested by the Agent in the circumstances.
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(b)
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Delivery of the Prospectus and any Supplementary Material shall constitute a representation and warranty by the Corporation to the Agent that, as at their respective dates of filing:
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(i)
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all information and statements (except information and statements relating solely to the Agent and provided by the Agent in writing) contained in the Prospectus and any Supplementary Material are true and correct in all material respects and contain no misrepresentation and constitute full, true and plain disclosure of all material facts relating to the Corporation and the Offered Units;
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(ii)
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no material fact or information has been omitted from such disclosure (except facts or information relating solely to the Agent and provided by the Agent in writing) which is required to be stated in such disclosure or is necessary to make the statements or information contained in such disclosure not misleading in light of the circumstances under which they were made;
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(iii)
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such documents comply in all material respects with the requirements of the Applicable Securities Laws and have been filed (and a receipt therefor will be obtained, if required) in each of the Qualifying Jurisdictions; and
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(iv)
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except as set forth or contemplated in the Prospectus or any Supplementary Material or as has otherwise been publicly disclosed, there has been no adverse material change (actual, anticipated, contemplated, proposed or threatened) in the business, affairs, business prospects, operations, assets, liabilities (contingent or otherwise), capital or ownership of the Corporation since the end of the period covered by the financial statements of the Corporation included in the Documents Incorporated by Reference. Such deliveries shall also constitute the Corporation’s consent to the use by the Agent and any Selling Firm of the Final Prospectus and any Supplementary Material in connection with the Distribution of the Offered Units in the Qualifying Jurisdictions in compliance with this
Agreement and Applicable Securities Laws.
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(c)
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The Corporation shall cause commercial copies of the Final Prospectus and any Supplementary Material to be delivered to the Agent without charge, in such numbers and in such cities as the Agent may reasonably request by written instructions to the Corporation’s financial printer of the Final Prospectus, and any Supplementary Material. Such delivery shall be effected as soon as possible and, in any event, not later than one Business Day after obtaining a receipt therefor from the Canadian Securities Regulators. The Corporation shall similarly cause to be delivered commercial copies of any Supplementary Material.
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5.
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Material or Significant Change During Distribution
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(a)
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During Distribution of the Offered Units under the Final Prospectus, the Corporation shall promptly notify the Agent in writing of:
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(i)
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any material change or significant change (actual, anticipated, contemplated, proposed or threatened, financial or otherwise) in the business, financial condition, affairs, operations, business prospects, assets, liabilities or obligations (contingent or otherwise) or capital of the Corporation and the Subsidiary, taken as a whole;
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(ii)
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any material fact which has arisen or has been discovered and would have been required to have been stated in the Final Prospectus had the fact arisen or been discovered on, or prior to, the date of the Final Prospectus; and
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(iii)
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any change in any material fact or matter covered by a statement contained in the Prospectus or any Supplementary Material (collectively, the “Offering Documents”) which change is, or may be, of such a nature as to render any of the Offering Documents misleading or untrue or which would result in a misrepresentation in any of the Offering Documents or which would result in the Prospectus or any Supplementary Material not complying with the Applicable Securities Laws or other laws of any Qualifying Jurisdiction or which would reasonably be expected to have a significant effect on the market price or value of the Common Shares.
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(b)
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The Corporation will comply with Section 57 of the Securities Act (Ontario) and with the comparable provisions of other Applicable Securities Laws, and the Corporation will prepare and will file any Supplementary Material, which, in the opinion of the Agent and its counsel, acting reasonably, may be necessary to continue to qualify the Offered Units for Distribution in each of the Qualifying Jurisdictions.
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(c)
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In addition to the provisions of subparagraphs 5(a) and 5(b), the Corporation shall in good faith discuss with the Agent any fact or change in circumstances (actual, anticipated, contemplated, proposed or threatened, financial or otherwise) which is of such a nature that there is reasonable doubt whether written notice need be given under this section and shall consult with the Agent with respect to the form and content of any amendment or other Supplementary Material proposed to be filed by the Corporation, it being understood and agreed that no such amendment or other Supplementary Material shall be filed with any Securities Regulator prior to the review thereof by the Agent and its counsel, acting reasonably.
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6.
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Covenants of the Corporation
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(a)
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will advise the Agent, promptly after receiving notice thereof, of the time when the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the Passport System and will provide evidence reasonably satisfactory to the Agent of each such filing and copies of such receipts;
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(b)
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shall forthwith advise the Agent of, and provide it with copies of, any written communications relating to:
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(i)
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the issuance by any securities regulatory authority, including the TSX, of any order suspending or preventing the use of the Prospectus or any Supplementary Material or any cease trading or stop order or any halt in trading relating to the Common Shares or the institution or threat of any proceedings for that purpose; and
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(ii)
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the receipt of any material communication from any securities regulatory authority, including the TSX, or other authority relating to the Prospectus or any Supplementary Material or the Offering;
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(c)
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shall use its best efforts to prevent the issuance of any order referred to in (b)(i) above and, if issued, shall forthwith take all reasonable steps which it is able to take and which may be necessary or desirable in order to obtain the withdrawal thereof as soon as is reasonably practicable;
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(d)
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will use its best efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in default of the requirements of the Applicable Securities Laws of each of the Qualifying Jurisdictions to the date which is five years following the Closing Date;
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(e)
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will use its best efforts to maintain the listing of the Common Shares on the TSX or such other recognized stock exchange or quotation system as the Agent may approve, acting reasonably, to the date that is five years following the Closing Date; and
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(f)
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will use the net proceeds of the offering of the Offered Units contemplated herein in the manner and subject to the qualifications described in the Prospectus under the heading “Use of Proceeds”.
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7.
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Representations, Warranties and Covenants of the Corporation
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(a)
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the Corporation has been duly incorporated, continued or amalgamated and is validly existing under the laws of its governing jurisdiction, has all requisite power and authority and is duly qualified to carry on its business as now conducted and to own or lease its properties and assets and the Corporation has all requisite corporate power and authority to carry out its obligations under this Agreement, the Warrant Indenture and the Compensation Option Certificates, and any other document, filing, instrument or agreement delivered in connection with the Offering, and to carry out its obligations hereunder and thereunder;
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(b)
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no agreement is in force or effect which in any manner affects the voting or control of any of the securities of the Corporation to which the Corporation is a party or to which the Corporation is aware;
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(c)
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the Subsidiary is inactive, has no material assets or liabilities (other than the sublicense from Ion Pharmaceuticals Inc. and the due to the Corporation, the amount of which is material but has been effectively eliminated), is not party to any material agreement (other than the NuChem Shareholders Agreement and the Arrangement Agreement) and no material revenues are booked through such Subsidiary;
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(d)
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the Corporation does not beneficially own or exercise control or direction over, 10% or more of the outstanding voting shares of any company other than the Subsidiary;
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(e)
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all consents, approvals, permits, authorizations or filings as may be required under Applicable Securities Laws necessary for the execution and delivery of this Agreement and the sale of the Offered Units, and the consummation of the transactions contemplated hereby, have been made or obtained or will be obtained prior to the Closing Date, as applicable, subject only to the Standard Listing Conditions contained in the TSX Letter;
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(f)
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the currently issued and outstanding Common Shares are listed and posted for trading on the TSX and on the OTC Pink (commonly known as the “pink sheets”) and no order ceasing or suspending trading in any securities of the Corporation or prohibiting the trading of any of the Corporation’s issued securities has been issued and no proceedings for such purpose are pending or, to the knowledge of the Corporation, threatened;
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(g)
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the definitive form of certificates representing the Common Shares complies with the requirements of the Canada Business Corporations Act, complies with the requirements of the TSX Company Manual and does not conflict with the constating documents of the Corporation;
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(h)
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the audited consolidated financial statements of the Corporation as at and for the year ended May 31, 2010 (the “Audited Financial Statements”) and the unaudited interim consolidated financial statements as at and for the three and nine month period ended February 28, 2011:
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(i)
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have been prepared in accordance with generally accepted accounting principles in Canada consistently applied throughout the period referred to therein;
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(ii)
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present fairly, in all material respects, the financial position (including the assets and liabilities, whether absolute, contingent or otherwise) of the Corporation as at such dates and results of operations of the Corporation for the periods then ended; and
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(iii)
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contain and reflect adequate provision or allowance for all reasonably anticipated liabilities, expenses and losses of the Corporation,
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(i)
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the Corporation has not declared or paid any dividends or declared or made any other payments or distributions on or in respect of any of its shares and, other than with respect to the June 2009 cancellation of convertible debentures, has not, directly or indirectly, redeemed, purchased or otherwise acquired any of its securities or agreed to do so or otherwise effected any return of capital with respect to such securities;
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(j)
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all taxes (including income tax, capital tax, payroll taxes, employer health tax, workers’ compensation payments, property taxes, custom and land transfer taxes), duties, royalties, levies, imposts, assessments, deductions, charges or withholdings and all liabilities with respect thereto including any penalty and interest payable with respect thereto (collectively, “Taxes”) due and payable by the Corporation have been paid except where the failure to pay such taxes would not have a Material Adverse Effect. All tax returns, declarations, remittances and filings required to be filed by the Corporation have been filed with all appropriate governmental authorities and all such returns, declarations,
remittances and filings are complete and accurate and no material fact or facts have been omitted therefrom which would make any of them misleading except where such failure would not have a Material Adverse Effect. Except for the CRA Letters, the Corporation has not received any written notice regarding examination of any tax return of the Corporation currently in progress and there are no issues or disputes outstanding with any governmental authority respecting any Taxes that have been paid, or may be payable, by the Corporation except where such examinations would not have a Material Adverse Effect;
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(k)
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the Corporation’s Auditors which are the auditors who audited the Audited Financial Statements and who provided their audit report thereon are independent public accountants under Applicable Securities Laws and since July 10, 2007 there has not been a “reportable disagreement” (within the meaning of NI 51-102) between the Corporation and the Corporation’s Auditors;
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(l)
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the Corporation maintains a system of internal accounting controls sufficient to provide reasonable assurance that:
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(i)
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transactions are executed in accordance with management’s general or specific authorization;
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(ii)
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transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets;
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(iii)
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access to assets is permitted only in accordance with management’s general or specific authorization; and
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(iv)
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the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
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(m)
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the Corporation is in compliance with the certification requirements contained in National Instrument 52-109 - Certification of Disclosure in Issuers’ Annual and Interim Filings of the Canadian Securities Administrators with respect to the Corporation’s annual and interim filings with Canadian securities regulators;
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(n)
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the audit committee of the Corporation is comprised and operates in accordance with the requirements of National Instrument 52-110 - Audit Committees of the Canadian Securities Administrators, each of whom the board of directors of the Corporation has determined, acting reasonably, is “independent” within the meaning of such instrument;
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(o)
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as at the Closing Date, except for the Warrants, Compensation Options and as set forth in Schedule “A” to this Agreement, no holder of outstanding securities of the Corporation will be entitled to any pre-emptive or any similar rights to subscribe for any of the Common Shares or other securities of the Corporation and no rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any shares in the capital of the Corporation are outstanding;
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(p)
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no legal or governmental proceedings are pending to which the Corporation is a party or to which its property is subject that would result individually or in the aggregate in a Material Adverse Effect and, to the knowledge of the Corporation, no such proceedings have been threatened against or are contemplated with respect to the Corporation or its properties;
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(q)
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the Corporation is the legal and beneficial owner, free of all mortgages, liens, charges, pledges, security interests, encumbrances, claims or demands whatsoever, of the interests in personal property referred to as owned by it in the Disclosure Record and described in the Disclosure Record, and all material agreements under which the Corporation holds an interest in personal property are in good standing according to their terms;
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(r)
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the minute books and records of the Corporation made available to counsel for the Agent in connection with its due diligence investigations of the Corporation for the period from June 1, 2010 to the date hereof are all of the minute books and records of the Corporation and contain copies of all material proceedings of the shareholders, the board of directors and all committees of the board of directors of the Corporation to the date of review of such corporate records and minute books and there have been no other meetings, resolutions or proceedings of the shareholders, board of directors or any committees of the board of directors of the Corporation to the date hereof not reflected in such minute books and other records;
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(s)
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the Corporation is, and will be at the Closing Time, an Eligible Issuer and a reporting issuer under Applicable Securities Laws in the Qualifying Jurisdictions; the Corporation is not in default in any material respect of any requirement of Applicable Securities Laws and the Corporation is not included in a list of defaulting reporting issuers maintained by the applicable securities regulators. In particular, without limiting the foregoing, the Corporation is in compliance at the date hereof with its obligations to make timely disclosure of all material changes relating to it and, since June 1, 2008 (other than in respect of material change reports previously filed on a confidential basis and thereafter made public or material change reports previously filed on a
confidential basis and in respect of which no material change ever resulted), no such disclosure has been made on a confidential basis and there is no material change relating to the Corporation which has occurred and with respect to which the requisite material change statement has not been filed, except to the extent that the Offering and the transactions contemplated thereunder may constitute a material change;
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(t)
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on June 20, 2011, the Company filed the Preliminary Prospectus in each of the Qualifying Jurisdictions and obtained, pursuant to the Passport System, a receipt dated June 21, 2011 from the Ontario Securities Commission (as principal regulator) therefor, evidencing the issuance by the Canadian Securities Regulators of receipts for the Preliminary Prospectus;
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(u)
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the execution and delivery of each of this Agreement, the Warrant Certificates and the Compensation Option Certificates and the compliance with all provisions contemplated thereunder, the offering and sale of the Offered Units and the issuance of the Offered Units and the Compensation Options does not and will not:
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(i)
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require the consent, approval, authorization, registration or qualification of or with any governmental authority, stock exchange, securities regulatory authority or other third party, except: (A) such as have been obtained; or (B) such as may be required and will be obtained by the Closing Time;
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(ii)
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result in a breach of or default under, nor create a state of facts which, after notice or lapse of time or both, would result in a breach of or default under, nor conflict with:
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1.
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any of the terms, conditions or provisions of the constating documents or resolutions of the shareholders, board of directors or any committee of the board of directors of the Corporation or the Subsidiary;
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2.
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any Applicable Law applicable to the Corporation, including, without limitation, the Applicable Securities Laws, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Corporation; or
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3.
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any Material Agreement; or
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(iii)
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give rise to any lien, charge or claim in or with respect to the properties or assets now owned or hereafter acquired by the Corporation or the Subsidiary or the acceleration of or the maturity of any debt under any indenture, mortgage, lease, agreement or instrument binding or affecting the Corporation or the Subsidiary or any of their properties;
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(v)
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upon the execution and delivery thereof, each of this Agreement, the Warrant Indenture and the Compensation Option Certificates, shall constitute a valid and binding obligation of the Corporation and each shall be enforceable against the Corporation in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, may be limited by Applicable Law;
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(w)
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at the Closing Time, all necessary corporate action will have been taken by the Corporation to: (a) validly issue the Unit Shares as fully paid and non-assessable securities in the capital of the Corporation; (b) validly create, authorize and issue the Warrants and the Compensation Options and (c) allot, reserve and authorize the issuance of the Warrant Shares, the Compensation Shares and the Compensation Warrant Shares, as fully paid and non-assessable securities in the capital of the Corporation upon the due exercise of the Warrants, the Compensation Options and the Compensation Warrants, as the case may be;
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(x)
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the authorized capital of the Corporation consists of an unlimited number of Common Shares of which (prior to giving effect to the Offering) 15,684,746 Common Shares are issued and outstanding as fully paid and non-assessable;
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(y)
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other than as contemplated hereby, there is no person acting or purporting to act at the request or on behalf of the Corporation that is entitled to any brokerage or finder’s fee in connection with the transactions contemplated by this Agreement;
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(z)
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all disclosure filings required to be made by the Corporation pursuant to Applicable Securities Laws have been made and such disclosure and filings contained no misrepresentation as at the respective dates thereof;
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(aa)
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the Corporation is not aware of any legislation, or proposed legislation (published by a legislative body), which it anticipates will materially and adversely affect the business, affairs, operations, assets, liabilities (contingent or otherwise) or prospects of the Corporation;
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(bb)
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the Corporation is in material compliance with all Applicable Laws respecting employment and employment practices, terms and conditions of employment, pay equity and wages, except where non-compliance with such laws could not reasonably be expected to have a Material Adverse Effect on the Corporation;
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(cc)
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there has not been and there is not currently any labour disruption or conflict which could reasonably be expected to have a Material Adverse Effect on the Corporation;
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(dd)
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the Corporation does not have any loans or other indebtedness outstanding which have been made to any of its officers, directors or employees, past or present, any known holder of more than 10% of any class of shares of the Corporation, or any person not dealing at arm’s length with the Corporation that are currently outstanding;
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(ee)
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except as disclosed in the Prospectus, none of the directors, officers or employees of the Corporation, any known holder of more than 10% of any class of shares of the Corporation, or any associate or affiliate of any of the foregoing persons, had or has any material interest, direct or indirect, in any transaction or any proposed transaction that was or is material to the Corporation;
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(ff)
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the Corporation maintains insurance covering the properties, operations, personnel and businesses of the Corporation as the Corporation reasonably deems adequate; such insurance insures against such losses and risks to an extent which is adequate in accordance with customary industry practice to protect the Corporation and the business of the Corporation; all such insurance is fully in force on the date hereof and will be fully in force on the Closing Date; and the Corporation has no reason to believe that it will not be able to renew any such insurance as and when such insurance expires;
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(gg)
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the Corporation is in material compliance with all Applicable Laws, permits, licences, certificates or approvals having the force of law, domestic or foreign (the “Environmental Laws”) relating to the protection of the environment, occupational health and safety or the processing, use, treatment, storage, disposal, discharge, transport or handling of any pollutants, contaminants, chemicals or industrial, toxic or hazardous wastes or substance (“Hazardous Substances”);
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(hh)
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to the knowledge of the Corporation, the Corporation has obtained or is in the process of obtaining all material licences, permits, approvals, consents, certificates, registrations and other authorizations under all applicable Environmental Laws (the “Environmental Permits”) necessary as at the date hereof for the operation of the businesses currently carried on by the Corporation and each Environmental Permit is valid, subsisting and in good standing and the Corporation is not in material default or breach of any Environmental Permit and, to the knowledge of the Corporation, no proceeding is pending or, to the knowledge of the Corporation, threatened, to revoke or limit any Environmental Permit; and to the knowledge
of the Corporation, there is no issue or reason why the Environmental Permits that have not already been approved or obtained should not be approved and obtained in the ordinary course;
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(ii)
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the Corporation has not used, except in compliance with all Environmental Laws and Environmental Permits, any property or facility which it owns or leases or previously owned or leased, to generate, manufacture, process, distribute, use, treat, store, dispose of, transport or handle any Hazardous Substance;
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(jj)
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since June 1, 2008, the Corporation has not received any notice of, or been prosecuted for an offence alleging, non-compliance with any Environmental Law, and the Corporation (including, if applicable, any predecessor companies) has not settled any allegation of non-compliance short of prosecution. To the knowledge of the Corporation, there are no orders or directions relating to environmental matters requiring any material work, repairs, construction or capital expenditures to be made with respect to any of the assets of the Corporation, nor has the Corporation received notice of any of the same;
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(kk)
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except as ordinarily or customarily required by applicable Environmental Permits, since June 1, 2008 the Corporation has not received any notice wherein it is alleged or stated that it is potentially responsible for a federal, provincial, state, municipal or local clean-up site or corrective action under any Environmental Laws. The Corporation has not received any request for information in connection with any federal, provincial or municipal inquiries as to disposal sites;
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(ll)
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there are no orders, rulings or directives issued, pending or, to the knowledge of the Corporation, threatened against the Corporation under or pursuant to any Environmental Laws requiring any work, repairs, construction or capital expenditures with respect to the property or assets of the Corporation (including the Leased Premises) which would have a Material Adverse Effect;
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(mm)
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no order, ruling of suspending the sale or ceasing the trading in any securities of the Corporation has been issued by any securities regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or, to the knowledge of the Corporation, are pending, contemplated or threatened by any regulatory authority;
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(nn)
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other than as disclosed in the Prospectus, the Corporation has not made any loans to or guaranteed the obligations of any person;
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(oo)
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the office premises of the Corporation located at 2 Meridian Road, Toronto, Ontario (the “Leased Premises”) is the only premises which is material to the Corporation and which the Corporation occupies as tenant, the Corporation has the exclusive right to occupy and use such premises, except for subleases entered into by the Corporation which would not have a Material Adverse Effect;
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(pp)
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the lease pursuant to which the Corporation occupies the Leased Premises is in good standing and in full force and effect, and neither the Corporation nor, to the knowledge of the Corporation, any other party thereto is in breach of any material covenants, conditions or obligations contained therein;
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(qq)
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there have not been and there are not currently any material disagreements with any of the employees of the Corporation which are adversely affecting the carrying on of the business of the Corporation;
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(rr)
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there is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Corporation, threatened against or affecting the Corporation, except with respect to Toronto Small Claims Court Claim No. SC-11-119044-00 and matter before the Ontario Superior Court of Justice (file number CV07CL0070150000) which is inactive, which, if either are determined adversely against the Corporation, would not have a Material Adverse Effect;
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(ss)
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the Transfer Agent at its principal offices in the City of Toronto has been duly appointed as registrar and transfer agent for the Common Shares;
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(tt)
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the Corporation holds all of the permits, licenses and like authorizations necessary for it to carry on its business in each jurisdiction where such business is carried on that are material to the conduct of the business of the Corporation (as such business is currently conducted), including, but not limited to, permits, licenses and like authorizations from Regulatory Authorities (collectively, the “Material Permits”); all such Material Permits which are so required are valid and subsisting and in good standing and none of the same contains any term, provision, condition or limitation which has or would reasonably be expected to affect or restrict in a materially adverse manner the operation of the business of the
Corporation, as now carried on or proposed to be carried on, as set out in the Prospectus, and the Corporation is not in breach thereof or in default with respect to filings to be effected or conditions to be fulfilled in order to maintain such Material Permits in good standing;
|
|
|
(uu)
|
the Corporation is in compliance with each Material Permit held by it and is not in violation of, or in default under, Applicable Laws of regulatory bodies, except in any case where the Corporation has received a valid and effective waiver of such violation or default;
|
|
|
(vv)
|
the clinical, pre-clinical and other studies and tests conducted by or on behalf of or sponsored by the Corporation that are described or referred to in the Prospectus (collectively, the “Clinical Trials”) were and, if still pending, are being conducted in accordance with all Applicable Laws, including Applicable Laws administered by Regulatory Authorities. The descriptions of the results of the Clinical Trials described or referred to in the Prospectus are accurate and complete in all material respects and fairly present the published data derived from the Clinical Trials and the Corporation has no knowledge of other studies or tests the results of which are materially inconsistent with or otherwise call
into question the results described or referred to in the Prospectus. The Corporation has not received any notices since June 1, 2008 or written correspondence from any Regulatory Authority with respect to any Clinical Trial requiring the termination or suspension of such Clinical Trial;
|
|
|
(ww)
|
the Corporation has filed with the applicable Regulatory Authority any material filing, declaration, listing, registration, report or submission that is required to be so filed. All such filings were in material compliance with Applicable Laws when filed and no deficiencies have been asserted by any Regulatory Authority with respect to any such filings, declarations, listings, registrations, reports or submissions;
|
|
|
(xx)
|
except as described in the Prospectus and with respect to intellectual property to which ownership is not statutorily protected, notwithstanding moral rights, the Corporation is the sole legal and beneficial owner of, has good and marketable title to, and owns all right, title and interest in all Corporation IP free and clear of all encumbrances, charges, covenants, conditions, options to purchase and restrictions or other adverse claims or interest of any kind or nature, and the Corporation has no knowledge of any claim of adverse ownership in respect thereof. No consent of any person is necessary to make, use, reproduce, license, sell, modify, update, enhance or otherwise exploit any Corporation IP and none of the Corporation IP comprises an improvement to Licensed IP
that would give any person any rights to the Corporation IP, including, without limitation, rights to license the Corporation IP;
|
|
|
(yy)
|
since June 1, 2008, the Corporation has not received any notice or claim (whether written, oral or otherwise) challenging the Corporation’s ownership or right to use any of the Corporation IP or suggesting that any other person has any claim of legal or beneficial ownership or other claim or interest with respect thereto, nor, to the knowledge of the Corporation, is there a reasonable basis for any claim that any person other than the Corporation has any claim of legal or beneficial ownership or other claim or interest in any of the Corporation IP;
|
|
|
(zz)
|
all applications for registration of any Registered Corporation IP are in good standing, are recorded in the name of the Corporation and have been filed in a timely manner in the appropriate offices to preserve the rights thereto and, in the case of a provisional application, the Corporation confirms that all right, title and interest in and to the invention(s) disclosed in such application have been or as of the Closing Date will be assigned in writing (without any express right to revoke such assignment) to the Corporation. To the knowledge of the Corporation, there has been no public disclosure, sale or offer for sale of any Corporation IP anywhere in the world that may prevent the valid issue of all available Intellectual Property rights in such Corporation
IP. All material prior art or other information has been disclosed to the appropriate offices as required in accordance with Applicable IP Laws in the jurisdictions where the applications are pending;
|
|
|
(aaa)
|
all registrations of Registered Corporation IP are in good standing and are recorded in the name of the Corporation in the appropriate offices to preserve the rights thereto. All such registrations have been filed, prosecuted and obtained in accordance with all Applicable IP Laws and are currently in effect and in compliance with all Applicable IP Laws. To the knowledge of the Corporation, no registration of Registered Corporation IP has expired, become abandoned, been cancelled or expunged, or has lapsed for failure to be renewed or maintained;
|
|
|
(bbb)
|
the conduct of the business of the Corporation (including, without limitation, the use or other exploration of the Corporation IP by the Corporation or other licensees) has not infringed, violated, misappropriated or otherwise conflicted with any Intellectual Property right of any person;
|
|
|
(ccc)
|
the Corporation is not a party to any action or proceeding, nor, to the knowledge of the Corporation, is or has any action or proceeding been threatened that alleges that any current or proposed conduct of its business (including, without limitation, the use or other exploitation of any Corporation IP by the Corporation or any customers, distributors or other licensees) has or will infringe, violate or misappropriate or otherwise conflict with any Intellectual Property right of any person;
|
|
|
(ddd)
|
to the knowledge of the Corporation, no person has interfered with, infringed upon, misappropriated, illegally exported, or violated any rights with respect to the Corporation IP;
|
|
|
(eee)
|
the Corporation has entered into valid and enforceable written agreements pursuant to which the Corporation has been granted all licenses and permissions to use, reproduce, sub license, sell, modify, update, enhance or otherwise exploit the Licensed IP to the extent required to operate all aspects of the business of the Corporation currently conducted (including, if required, the right to incorporate such Licensed IP into the Corporation IP). All license agreements in respect of the Licensed IP are in full force and effect and none of the Corporation, or to the knowledge of the Corporation, any other person, is in default of its obligations thereunder;
|
|
|
(fff)
|
to the extent that any of the Corporation IP is licensed or disclosed to any person or any person has access to such Corporation IP (including, without limitation, any employee, officer, shareholder or consultant of the Corporation), the Corporation has entered into a valid and enforceable written agreement which contains terms and conditions prohibiting the unauthorized use, reproduction, disclosure, reverse engineering or transfer of such Corporation IP by such person. All such agreements are in full force and effect and none of the Corporation, or to the knowledge of the Corporation, any other person, is in default of its obligations thereunder;
|
|
|
(ggg)
|
the Corporation has taken all actions that are contractually obligated to be taken and all actions that are customary and reasonable to protect the confidentiality of the Corporation IP;
|
|
|
(hhh)
|
to the knowledge of the Corporation, it is not, and will not be, necessary for the Corporation to utilize any Intellectual Property owned by or in possession of any of the employees (or people the Corporation currently intends to hire) made prior to their employment with the Corporation in violation of the rights of such employee or any of his or her prior employers;
|
|
|
(iii)
|
except where the Corporation has decided not to pursue registration of any Corporation IP that can be registered since June 1, 2008, the Corporation has not received any advice or any opinion that any of the Corporation IP is invalid or unregistrable or unenforceable, in whole or in part;
|
|
|
(jjj)
|
the Corporation has not received any grant relating to research and development which is subject to repayment in whole or in part or to conversion to debt upon sale of any Common Shares or which may affect the right of ownership of the Corporation in the Corporation IP;
|
|
|
(kkk)
|
the Corporation has and enforces a policy requiring each employee and consultant to execute a non-disclosure agreement substantially in the forms provided to the Agent and their counsel and all current employees and consultants of the Corporation have executed such agreement and to the knowledge of the Corporation, all past employees and consultants of the Corporation have executed such agreement;
|
|
|
(lll)
|
all of the present and, to the knowledge of the Corporation, past employees of the Corporation and all of the present and, to the knowledge of the Corporation, past consultants, contractors and agents of the Corporation performing services relating to the development, modification or support of the Corporation IP, have entered into a written agreement assigning to the Corporation all right, title and interest in and to all such Intellectual Property;
|
|
|
(mmm)
|
any and all fees or payments required to keep the Corporation IP and the Licensed IP in force or in effect have been paid, except those which the Corporation has determined the failure to pay would not have a Material Adverse Effect;
|
|
|
(nnn)
|
to the knowledge of the Corporation, there is no claim of infringement or breach by the Corporation of any industrial or Intellectual Property rights of any other person, nor has the Corporation received any notice or threat from any such third party since June 1, 2008, nor is the Corporation otherwise aware that the use of the business names, trademarks, service marks and other industrial or Intellectual Property of the Corporation infringes upon or breaches any industrial or Intellectual Property rights of any other person;
|
|
|
(ooo)
|
to the knowledge of the Corporation, there are no Intellectual Property disputes, negotiations, agreements or communications between the Corporation and any other persons relating to or potentially relating to the business of the Corporation;
|
|
|
(ppp)
|
the Corporation has conducted and is conducting its business in compliance in all material respects with all Applicable Laws of each jurisdiction in which it carries on business and has not received a notice of non-compliance, nor knows of, nor has reasonable grounds to know of, any facts that could give rise to a notice of non-compliance with any such laws, regulations or permits which would have a Material Adverse Effect;
|
|
|
(qqq)
|
the Corporation is the beneficial owner of the properties, business and assets or the interests in the properties, business or assets referred to as owned by it in the Prospectus, all agreements under which the Corporation holds an interest in a property, business or asset are in good standing according to their terms; and
|
|
|
(rrr)
|
the Corporation is not aware of any reason as a result of which it is not entitled to make use of and commercially exploit the Corporation IP. With respect to each license or agreement by which the Corporation has obtained the rights to exploit, in any way, the Licensed IP rights of any other person or by which the Corporation has granted to any third party the right to so exploit such Licensed IP:
|
|
|
(i)
|
such license or agreement is in full force and effect and is legal, valid, binding and enforceable in accordance with its terms, except to the extent that enforceability may be limited by: (a) applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally; or (b) laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, and represents the entire agreement between the parties thereto with respect to the subject matter thereof, and no event of default has occurred and is continuing under any such license or agreement;
|
|
|
(ii)
|
(a) the Corporation has not received any notice of termination or cancellation under such license or agreement, and no party thereto has any right of termination or cancellation thereunder except in accordance with its terms; (b) the Corporation has not received any notice of a breach or default under such license or agreement which breach or default has not been cured; and (c) the Corporation has not granted to any other person any rights adverse to, or in conflict with, such license or agreement; and
|
|
|
(iii)
|
the Corporation is not aware of any other party to such license or agreement that is in breach or default thereof, and is not aware of any event that has occurred that, with notice or lapse of time would constitute such a breach or default or permit termination, modification or acceleration under such license or agreement.
|
|
8.
|
Closing
|
|
9.
|
Closing Conditions
|
|
|
(a)
|
the Agent shall have received an opinion, dated the Closing Date, of the Corporation’s counsel, McCarthy Tétrault LLP, and local counsel in any Qualifying Jurisdiction where the Offered Units are sold (it being understood that such counsel may rely to the extent appropriate in the circumstance: (i) as to matters of fact, on certificates of the Corporation executed on its behalf by a senior officer of the Corporation and on certificates of the Transfer Agent, as to the issued capital of the Corporation; and (ii) as to matters of fact not independently established, on certificates of public officials) with respect to the following matters:
|
|
|
(i)
|
as to the incorporation and subsistence of the Corporation under the laws of its jurisdiction of incorporation, the qualification of the Corporation to carry on its business as described in the Final Prospectus, and as to the corporate power and capacity of the Corporation to own, lease and operate its properties and assets to conduct its business as described in the Final Prospectus and to enter into and to carry out its obligations under this Agreement and to issue the securities, as contemplated by this Agreement;
|
|
|
(ii)
|
as to the authorized and issued capital of the Corporation;
|
|
|
(iii)
|
that none of the execution and delivery of this Agreement, the Warrant Indenture and the Compensation Option Certificates, the consummation of the transactions contemplated by this Agreement, the performance by the Corporation of its obligations hereunder and thereunder, or the sale or issuance of the Unit Shares and Warrants comprising the Offered Units, the Warrant Shares, the Compensation Options, the Compensation Units, the Compensation Unit Shares, the Compensation Warrants and the Compensation Warrant Shares will conflict with or result in any breach or violation of any of the terms of: (A) the articles or by-laws of the Corporation or resolutions of the board of directors or the shareholders of the Corporation; or (B) the
Canada Business Corporations Act or other applicable law;
|
|
|
(iv)
|
that all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of each of this Agreement, the Warrant Indenture, the Compensation Option Certificates, the Preliminary Prospectus, the Final Prospectus and, if applicable, any Supplementary Materials, and the filing of such documents under Applicable Securities Laws;
|
|
|
(v)
|
that each of this Agreement, the Warrant Indenture and the Compensation Option Certificates has been duly authorized and executed by the Corporation and constitutes a legal, valid and binding obligation of the Corporation enforceable against the Corporation in accordance with its terms, except as enforcement of this Agreement, the Warrant Indenture and the Compensation Option Certificates may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, may be limited by Applicable Law;
|
|
|
(vi)
|
that the attributes of the Offered Units as well as the Compensation Options are consistent in all respects with the descriptions thereof contained in the Final Prospectus;
|
|
|
(vii)
|
the issuance of the Common Shares, including, without limitation, the Common Shares forming part of the Offered Units and Compensation Units, and the Common Shares issuable upon the due exercise of the Warrants and Compensation Warrants have been duly authorized and the said Common Shares have been validly allotted for issuance by the Corporation and such Common Shares, when issued upon receipt of the consideration for the said Common Shares, will be outstanding as fully paid shares;
|
|
|
(viii)
|
that the form of the share certificate representing the Common Shares complies with the requirements of the Canada Business Corporations Act and conforms with the requirements of the TSX Company Manual and has been duly approved by the board of directors of the Corporation;
|
|
|
(ix)
|
that the Transfer Agent at its principal office in the City of Toronto has been duly appointed as the transfer agent and registrar for the Common Shares;
|
|
|
(x)
|
the statements set out in the Final Prospectus under the heading “Eligibility for Investment” are true and correct as at the date of the Final Prospectus;
|
|
|
(xi)
|
that all necessary documents have been filed and all requisite proceedings have been taken and all necessary approvals, permits, consents and authorizations of the appropriate regulatory authorities under the Applicable Securities Laws have been obtained by the Corporation to qualify the Offered Units and the Compensation Options for Distribution in each of the Qualifying Jurisdictions through investment dealers or brokers registered under the Applicable Laws of the Qualifying Jurisdictions who have complied with the relevant provisions of such Applicable Laws;
|
|
|
(xii)
|
that the Unit Shares, Warrant Shares, Compensation Shares and Compensation Warrant Shares issued in connection with the Offering have been conditionally approved for listing by the TSX, subject only to Standard Listing Conditions; and
|
|
|
(xiii)
|
as to such other matters as the Agent’s legal counsel may reasonably request prior to the Closing Time;
|
|
|
(b)
|
the Agent shall have received one or more certificates evidencing the Offered Units and the Compensation Options;
|
|
|
(c)
|
the Agent shall have received an incumbency certificate dated the Closing Date including specimen signatures of the President and Chief Executive Officer, the Chief Financial Officer and any other officer of the Corporation signing this Agreement or any document delivered hereunder;
|
|
|
(d)
|
the Agent shall have received a certificate dated the Closing Date of the President and Chief Executive Officer and the Chief Financial Officer of the Corporation or other officers of the Corporation acceptable to the Agent, to the effect that, to the best of their knowledge, information and belief, after due inquiry and without personal liability:
|
|
|
(i)
|
the representations and warranties of the Corporation contained in this Agreement are true and correct in all respects as if made at and as of the Closing Time;
|
|
|
(ii)
|
the Corporation has complied with and satisfied the covenants, terms and conditions of this Agreement on its part to be complied with and satisfied up to the Closing Time;
|
|
|
(iii)
|
no order, ruling or determination having the effect of suspending the sale or ceasing the trading of the Common Shares or any other securities of the Corporation has been issued by any stock exchange, securities commission or regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending;
|
|
|
(iv)
|
since the respective dates as of which information is given in the Final Prospectus as amended by any prospectus amendment: (A) there has been no material change (actual, anticipated, contemplated, proposed or threatened, whether financial or otherwise) in the business, financial condition, affairs, operations, business prospects, assets, liabilities or obligations (contingent or otherwise) or capital of the Corporation; and (B) no transaction has been entered into by the Corporation which constitutes a material change as defined in Applicable Securities Laws, other than as disclosed in the Final Prospectus or any Supplementary Materials, as the case may be;
|
|
|
(v)
|
there are no contingent liabilities affecting the Corporation which are material to the Corporation, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be; and
|
|
|
(vi)
|
the responses to the questions posed to each of management of the Corporation, the Chair of the audit committee of the board of directors of the Corporation, the Corporation’s Auditors and legal counsel to the Corporation at the due diligence sessions held on June 20, 2011 and July 12, 2011 remain true and complete in all respects, as if such statements were made at and as of the Closing Time,
|
|
|
(e)
|
the Agent shall have received a letter dated the Closing Date, in form and substance satisfactory to the Agent from the Corporation’s Auditors, confirming the continued accuracy of the comfort letter to be delivered to the Agent pursuant to subparagraph 4(a)(iii) with such changes as may be necessary to bring the information in such letter forward to a date not more than two Business Days prior to the Closing Date, which changes shall be acceptable to the Agent;
|
|
|
(f)
|
the Corporation shall have received the conditional approval of the TSX for the listing of the Unit Shares, Warrant Shares, Compensation Shares and Compensation Warrants Shares issuable in connection with the Offering for trading on such exchange;
|
|
|
(g)
|
the Corporation’s board of directors shall have authorized and approved the execution and delivery of this Agreement, the Warrant Indenture and the Compensation Option Certificates, the allotment, issuance and delivery of the Unit Shares, the creation and issuance of the Warrants and the Compensation Options and, upon the due exercise of the Warrants and Compensation Options, the allotment, issuance and delivery of the Warrant Shares, Compensation Warrants, Compensation Shares and Compensation Warrant Shares, as the case may be, and all matters relating thereto;
|
|
|
(h)
|
the Agent shall have received a certificate of status or equivalent thereof in respect of the Corporation;
|
|
|
(i)
|
the Agent and its counsel shall have been provided with all information and documentation reasonably requested relating to their due diligence inquiries and investigations;
|
|
|
(j)
|
the Corporation will have made and/or obtained the necessary filings, approvals, consents and acceptances of the appropriate regulatory authorities required to be made or obtained by the Corporation in connection with the sale of the Offered Units to the Purchasers prior to the Closing Time as herein contemplated, it being understood that the Agent shall do all that is reasonably required to assist the Corporation to fulfil this condition, subject only to the Standard Listing Conditions;
|
|
|
(k)
|
the Agent shall have received excerpts from the list of reporting issuers not in default maintained by the applicable Canadian Securities Regulators; and
|
|
|
(l)
|
the Agent shall have received a certificate from the Transfer Agent as to the number of Common Shares issued and outstanding as at a date no more than two Business Days prior to the Closing Date.
|
|
10.
|
All Terms to be Conditions
|
|
11.
|
Rights of Termination
|
|
|
(a)
|
there shall have occurred any material adverse change or there shall be discovered any previously undisclosed adverse material fact in relation to the Corporation; or
|
|
|
(b)
|
there shall have occurred any change in the applicable securities laws of any province of Canada or any inquiry, investigation or other proceeding by a securities regulatory authority or any order is issued under or pursuant to any statute of Canada or any province thereof or any statute of the United States or any state thereof or any stock exchange in relation to the Corporation or any of its securities (except for any inquiry, investigation or other proceeding based upon activities of the Agent and not upon activities of the Corporation);
|
|
|
(c)
|
there should develop, occur or come into effect or existence any event, action, state, condition or major financial occurrence of national or international consequence or any law or regulation which, in the opinion of the Agent, seriously adversely affects or involves, or will seriously adversely affect, or involve, the financial markets or the business, operations or affairs of the Corporation taken as a whole;
|
|
|
(d)
|
the state of the financial markets in Canada or the United States is such that, in the reasonable opinion of the Agent, the Offered Units cannot be marketed profitably;
|
|
|
(e)
|
a cease trading order with respect to any securities of the Corporation is made by any Securities Regulator or other competent authority by reason of the fault of the Corporation or its directors, officers and agents and such cease trading order has not been rescinded within 48 hours;
|
|
|
(f)
|
the Agent, acting reasonably, is not satisfied in its sole discretion with its due diligence review and investigations;
|
|
|
(g)
|
the Corporation is in breach of a material term, condition or covenant of this Agreement or any representation or warranty given by the Corporation in this Agreement becomes or is false or misleading;
|
|
|
(h)
|
any condition of this Agreement shall remain outstanding and uncompleted at any time after the time which it is required to be completed, except such as have been waived by the Agent; or
|
|
|
(i)
|
the Corporation receives notice from the TSX that the Unit Shares, Warrant Shares, Compensation Shares and Compensation Warrant Shares shall not be accepted for listing on the TSX.
|
|
12.
|
Indemnity and Contribution
|
|
|
(a)
|
any misrepresentation or alleged misrepresentation contained in the Offering Documents filed, together with any and all amendments thereto required to be filed, in connection with the sale of the Offered Units pursuant to the Offering or in any documents incorporated therein by reference;
|
|
|
(b)
|
any information or statement (except any information or statement relating solely to the Agents and provided by them in writing) contained in any certificate of the Corporation delivered under or pursuant to this Agreement which at the time and in light of the circumstances under which it was made contains or is alleged to contain a misrepresentation;
|
|
|
(c)
|
any omission or alleged omission to state, in any certificate of the Corporation delivered under or pursuant to this Agreement, any fact (except facts relating solely to the Agents and provided by them in writing), whether material or not, required to be stated in such document or necessary to make any statement in such document not misleading in light of the circumstances under which it was made; or
|
|
|
(d)
|
the non-compliance or alleged non-compliance by the Corporation with any requirements of the Securities Act (Ontario) or other Applicable Securities Laws;
|
|
|
(e)
|
any order made or any inquiry, investigation or proceeding commenced or threatened by any securities regulatory authority, stock exchange or by any other competent authority, based upon any misrepresentation or alleged misrepresentation (except a misrepresentation or alleged misrepresentation relating solely to the Agents and provided by them in writing) in the Offering Documents (except any document or material delivered or filed solely by the Agents) or based upon any failure or alleged failure to comply with Applicable Securities Laws (other than any failure or alleged failure to comply by the Agents) preventing and restricting the trading in or the sale of the Common Shares or any of them in the Qualifying Jurisdictions, in any other province of territory of Canada, any state of
the United States or internationally; or
|
|
|
(f)
|
a breach of any representation, warranty or covenant of the Corporation contained in this Agreement or the failure of the Corporation to comply with any of its obligations hereunder,
|
|
|
(a)
|
such indemnified person or the Personnel has been negligent or has committed any wilful misconduct, fraud or illegal conduct in the course of such performance; and
|
|
|
(b)
|
the expenses, losses, claims, damages or liabilities, as to which indemnification is claimed, were caused by the negligence, wilful misconduct, fraud or illegal conduct referred to in (a).
|
|
|
(a)
|
the employment of such counsel has been authorized in writing by the Corporation;
|
|
|
(b)
|
the Corporation has not assumed the defence and employed counsel therefor within a reasonable time after receiving notice of such Claim; or
|
|
|
(c)
|
counsel retained by the Corporation or the Agent(s) and/or the Personnel has advised the Agent(s) and/or the Personnel that representation of both parties by the same counsel may be inappropriate for any reason, including without limitation because there may be legal defences available to the Agents and/or the Personnel which are different from or in addition to those available to the Corporation (in which event and to that extent, the Corporation shall not have the right to assume or direct the defence on the Agent’s and/or the Personnel’s behalf) or that there may be a conflict of interest between the Corporation and the Agents and/or the Personnel or the subject matter of the Claim may not fall within the indemnity set forth herein (in either of which events the
Corporation shall not have the right to assume or direct the defence on the Agents’ and/or the Personnel’s behalf).
|
|
13.
|
Expenses
|
|
14.
|
Survival of Representations, Warranties, Covenants and Agreements
|
|
17.
|
Stipulation for the Benefit of Certain Selling Firms
|
|
18.
|
Notice
|
|
19.
|
Entire Agreement
|
|
20.
|
Press Releases
|
|
21.
|
Funds
|
|
22.
|
Time of the Essence
|
|
23.
|
Further Assurances
|
|
24.
|
Assignment
|
|
25.
|
Severability
|
|
26.
|
Singular and Plural, etc.
|
|
27.
|
Governing Law
|
|
28.
|
Language
|
|
29.
|
Counterparts
|
|
30.
|
Facsimile
|
|
Security
|
Exercise Price
|
Number of Convertible
|
Expiry Date
|
|
($)
|
Securities Outstanding
|
||
|
Options
|
0.89-18.00
|
1,229,538
|
September 17, 2011 - April 7, 2021
|
|
Warrants
|
1.33
|
4,169,549
|
May 8, 2012
|