UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
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For the quarterly period ended
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission file number:
(Exact name of registrant as specified in its charter) |
British Columbia, |
| N/A |
(State or other jurisdiction of incorporation or organization) |
| (I.R.S. Employer Identification No.) |
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( |
(Address of principal executive offices and zip code) |
| (Registrant’s telephone number, including area code) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
| Trading Symbol |
| Name of each exchange on which registered |
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| The |
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ☐ | Accelerated filer | ☐ |
☒ | Smaller reporting company | ||
|
| Emerging growth company |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes
As of August 9, 2023, the registrant had
EDESA BIOTECH, INC.
QUARTERLY REPORT ON FORM 10-Q
Quarter Ended June 30, 2023
Table of Contents
| 2 |
| Table of Contents |
PART 1 – FINANCIAL INFORMATION
Item 1. Financial Statements
Edesa Biotech, Inc.
Condensed Interim Consolidated Balance Sheets
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| June 30, 2023 |
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| September 30, 2022 |
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Assets: |
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Current assets: |
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Cash and cash equivalents |
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Prepaid expenses and other current assets |
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Total current assets |
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Non-current assets: |
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Property and equipment, net |
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Long-term deposits |
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Intangible asset, net |
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Right-of-use assets |
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Total assets |
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Liabilities and shareholders' equity: |
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Current liabilities: |
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Accounts payable and accrued liabilities |
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Short-term right-of-use lease liabilities |
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Total current liabilities |
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Non-current liabilities: |
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Long-term payables |
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Long-term right-of-use lease liabilities |
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Total liabilities |
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Commitments (Note 5) |
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Shareholders' equity: |
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Capital shares |
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Authorized unlimited common and preferred shares without par value |
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Issued and outstanding: |
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Additional paid-in capital |
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Accumulated other comprehensive loss |
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Accumulated deficit |
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Total shareholders' equity |
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Total liabilities and shareholders' equity |
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The accompanying notes are an integral part of these condensed interim consolidated financial statements.
| 3 |
| Table of Contents |
Edesa Biotech, Inc.
Condensed Interim Consolidated Statements of Operations
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| Three Months Ended |
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| Nine Months Ended |
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| June 30, 2023 |
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| June 30, 2022 |
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| June 30, 2023 |
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Expenses: |
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Research and development |
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General and administrative |
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Loss from operations |
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Other income (loss): |
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Reimbursement grant income |
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Interest income |
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Foreign exchange loss |
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Loss before income taxes |
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Income tax expense |
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Net loss |
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Exchange differences on translation |
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Net comprehensive loss |
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Weighted average number of common shares |
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Loss per common share - basic and diluted |
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| $ | ( | ) |
The accompanying notes are an integral part of these condensed interim consolidated financial statements.
| 4 |
| Table of Contents |
Edesa Biotech, Inc.
Condensed Interim Consolidated Statements of Cash Flows
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| Nine Months Ended |
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| June 30, 2023 |
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| June 30, 2022 |
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Cash flows from operating activities: |
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Net loss |
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Adjustments for: |
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Depreciation and amortization |
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Share-based compensation |
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Changes in working capital items: |
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Accounts and other receivable |
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Prepaid expenses and other current assets |
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Accounts payable and accrued liabilities |
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Net cash used in operating activities |
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Cash flows from investing activities: |
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Purchase of property and equipment |
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Net cash used in investing activities |
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Cash flows from financing activities: |
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Proceeds from issuance of common shares and warrants |
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Proceeds from exercise of warrants |
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Payments for issuance costs of common shares and warrants |
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Net cash provided by financing activities |
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Effect of exchange rate changes on cash and cash equivalents |
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Net change in cash and cash equivalents |
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Cash and cash equivalents, beginning of period |
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Cash and cash equivalents, end of period |
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Supplemental Disclosure of Noncash Financing Activities: |
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Issuance costs withheld from gross proceeds from issuance of common shares and warrants |
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Fair value of placement agent warrants |
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The accompanying notes are an integral part of these condensed interim consolidated financial statements.
| 5 |
| Table of Contents |
Edesa Biotech, Inc.
Condensed Interim Consolidated Statements of Changes in Shareholders' Equity
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| Shares # |
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| Common Shares |
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| Additional Paid-in Capital |
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| Accumulated Other Comprehensive Loss |
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| Accumulated Deficit |
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| Total Shareholders' Equity |
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Three Months Ended June 30, 2023 |
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Balance - March 31, 2023 |
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Issuance of common shares and warrants in equity offering |
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Issuance costs |
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Share-based compensation |
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Net loss and comprehensive loss |
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Balance - June 30, 2023 |
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Three Months Ended June 3, 2022 |
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Balance - March 31, 2022 |
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Share-based compensation |
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Net loss and comprehensive loss |
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Balance - June 30, 2022 |
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Nine Months Ended June 30, 2023 |
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Balance - September 30, 2022 |
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Issuance of common shares and warrants in equity offering |
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Issuance of common shares upon exercise of warrants |
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Issuance costs |
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Share-based compensation |
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Net loss and comprehensive loss |
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Balance - June 30, 2023 |
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Nine Months Ended June 30, 2022 |
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Balance - September 30, 2021 |
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Issuance of common shares and warrants in equity offering |
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Issuance costs including fair value of placement agent warrants |
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Share-based compensation |
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Net loss and comprehensive loss |
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Balance - June 30, 2022 |
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| $ |
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| $ |
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| $ | ( | ) |
| $ | ( | ) |
| $ |
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The accompanying notes are an integral part of these condensed interim consolidated financial statements.
| 6 |
| Table of Contents |
Edesa Biotech, Inc.
Notes to Condensed Interim Consolidated Financial Statements
(Unaudited)
1. Nature of Operations
Edesa Biotech, Inc. (the Company or Edesa) is a biopharmaceutical company focused on acquiring, developing and commercializing clinical-stage drugs for inflammatory and immune-related diseases with clear unmet medical needs. The Company is organized under the laws of British Columbia, Canada and is headquartered in Markham, Ontario. It operates under its wholly owned subsidiaries, Edesa Biotech Research, Inc., an Ontario, Canada corporation, and Edesa Biotech USA, Inc., a California, USA corporation.
The Company’s common shares trade on The Nasdaq Capital Market in the United States under the symbol “EDSA”.
2. Basis of Presentation
The accompanying unaudited condensed interim consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States (U.S. GAAP) for interim financial information and with the instructions to Form 10-Q. They do not include all information and footnotes necessary for a fair presentation of financial position, results of operations and cash flows in conformity with U.S. GAAP for complete financial statements. These unaudited condensed interim consolidated financial statements should be read in conjunction with the consolidated financial statements and related notes contained in the Company’s Annual Report on Form 10-K for the year ended September 30, 2022, which was filed with the Securities and Exchange Commission (SEC) on December 16, 2022.
The accompanying unaudited condensed interim consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries. All intercompany balances and transactions have been eliminated on consolidation. All adjustments (consisting of normal recurring adjustments and accruals) considered necessary for a fair presentation of the results of operations for the periods presented have been included in the interim periods. Operating results for the three and nine months ended June 30, 2023 are not necessarily indicative of the results that may be expected for other interim periods or the fiscal year ending September 30, 2023.
Use of estimates
The preparation of consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the period or year. Actual results could differ from those estimates. Areas where significant judgment is involved in making estimates are valuation of accounts and other receivable; valuation and useful lives of property and equipment; intangible assets; right-of-use assets; deferred income taxes; the determination of fair value of share-based compensation; the determination of fair value of warrants in order to allocate proceeds from equity issuances; and forecasting future cash flows for assessing the going concern assumption.
Functional and reporting currencies
The consolidated financial statements of the Company are presented in U.S. dollars, unless otherwise stated, which is the Company’s and its wholly owned subsidiary’s, Edesa Biotech USA, Inc., functional currency. The functional currency of the Company’s wholly owned subsidiary, Edesa Biotech Research, Inc., as determined by management, is Canadian dollars.
3. Intangible Assets
Acquired License
In April 2020, the Company entered into a license agreement with a pharmaceutical development company to obtain exclusive world-wide rights to know-how, patents and data relating to certain monoclonal antibodies (the Constructs), including sublicensing rights. Unless earlier terminated, the term of the license agreement will remain in effect for 25 years from the date of first commercial sale of licensed products containing the Constructs. Subsequently, the license agreement will automatically renew for five-year periods unless either party terminates the agreement in accordance with its terms.
Under the license agreement, the Company is exclusively responsible, at its expense, for the research, development manufacture, marketing, distribution and commercialization of the Constructs and licensed products and to obtain all necessary licenses and rights. The Company is required to use commercially reasonable efforts to develop and commercialize the Constructs in accordance with the terms of a development plan established by the parties.
| 7 |
| Table of Contents |
The Company has determined that the license has multiple alternative future uses in research and development projects and sublicensing in other countries or for other disease indications. The value of the acquired license is recorded as an intangible asset with amortization over the estimated useful life of
Intangible assets, net consisted of the following:
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| June 30, 2023 |
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| September 30, 2022 |
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The Constructs |
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Less: accumulated amortization |
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Total intangible assets, net |
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Amortization expense amounted to $
Total estimated future amortization of intangible assets for each fiscal year is as follows:
Year Ending |
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September 30, 2023 |
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September 30, 2024 |
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September 30, 2025 |
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September 30, 2026 |
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September 30, 2027 |
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Thereafter |
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4. Right-of-Use Lease with Related Party
The Company leases a facility used for executive offices from a related company. The original lease expired in December 2022, and the Company executed a two-year extension through December 2024.
The components of right-of-use lease cost were as follows:
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| Three Months Ended |
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| Nine Months Ended |
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| June 30, 2023 |
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| June 30, 2022 |
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| June 30, 2023 |
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| June 30, 2022 |
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Right-of-use lease cost, included in general and administrative on the Statements of Operations |
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| $ |
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| $ |
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Lease terms and discount rates were as follows:
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| June 30, 2023 |
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| September 30, 2022 |
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Remaining lease term (months): |
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Estimated incremental borrowing rate: |
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| 8 |
| Table of Contents |
The future minimum lease payments under right-of-use leases at June 30, 2023 were as follows:
Year Ending |
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September 30, 2023 |
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September 30, 2024 |
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September 30, 2025 |
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Total lease payments |
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Less imputed interest |
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Present value of right-of-use lease liabilities |
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Present value included in current liabilities |
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Present value included in long-term liabilities |
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Cash flow information was as follows:
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| June 30, 2023 |
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| June 30, 2022 |
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Cash paid for amounts included in the measurement of right-of-use lease liabilities, included in accounts payable and accrued liabilities on the Statements of Cash Flow. |
| $ |
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| $ |
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5. Commitments
Research and other commitments
The Company has commitments for contracted research organizations who perform clinical trials for the Company’s ongoing clinical studies and other service providers. Approximate aggregate future contractual payments at June 30, 2023 are as follows:
Year Ending |
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September 30, 2023 |
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September 30, 2024 |
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September 30, 2025 |
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September 30, 2026 |
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September 30, 2027 |
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License and royalty commitments
In April 2020, through its Ontario subsidiary, the Company entered into a license agreement with a third party to obtain exclusive world-wide rights to certain know-how, patents and data relating to the Constructs, including sublicensing rights. An intangible asset for the acquired license has been recognized. See Note 3 for intangible assets. Under the license agreement, the Company is committed to payments of up to an aggregate amount of $
In connection with this license agreement and pursuant to a purchase agreement entered into in April 2020,
| 9 |
| Table of Contents |
In 2016, through its Ontario subsidiary, the Company entered into a license agreement with a third party to obtain exclusive rights to certain know- how, patents and data relating to a pharmaceutical product. The Company will use the exclusive rights to develop the product for therapeutic, prophylactic and diagnostic uses in topical dermal applications and anorectal applications. No intangible assets have been recognized under the license agreement with the third party. Under the license agreement, the Company is committed to payments of various amounts to the third party upon meeting certain milestones outlined in the license agreement, up to an aggregate amount of $
In March 2021, through its Ontario subsidiary, the Company entered into a license agreement with the inventor of the same pharmaceutical product to acquire global rights for all fields of use beyond those named under the 2016 license agreement. Milestone payments of $
6. Capital Shares
Equity Distribution Agreements
On March 27, 2023, the Company entered into an equity distribution agreement with Canaccord Genuity LLC (Canaccord), as sales agent, pursuant to which the Company may offer and sell, from time to time, common shares through an at-the-market equity offering program for up to $
From November 22, 2021 until terminated on March 21, 2022, the Company had an equity distribution agreement for an at-the-market equity offering program with another sales agent. During the nine months ended June 30, 2022, the Company sold a total of
Equity offerings
On November 2, 2022, the Company completed a private placement of units consisting of
On March 24, 2022, the Company completed a registered direct offering of
| 10 |
| Table of Contents |
Black-Scholes option valuation model
The Company uses the Black-Scholes option valuation model to determine the fair value of share-based compensation for share options and compensation warrants granted and the fair value of warrants issued. Option valuation models require the input of highly subjective assumptions including the expected price volatility. The Company calculates expected volatility based on historical volatility of the Company’s share price. When there is insufficient data available, the Company uses a peer group that is publicly traded to calculate expected volatility. The Company adopted interest-free rates by reference to the U.S. treasury yield rates. The Company calculated the fair value of share options granted based on the expected life of
Warrants
A summary of the Company’s warrants activity is as follows:
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| Number of Warrant Shares (#) |
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| Weighted Average Exercise Price |
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Nine Months Ended June 30, 2023 |
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Balance - September 30, 2022 |
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Issued |
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Exercised |
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Expired |
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Balance - June 30, 2023 |
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Nine Months Ended June 30, 2022 |
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Balance - September 30, 2021 |
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Issued |
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Balance - June 30, 2022 |
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The weighted average contractual life remaining on the outstanding warrants at June 30, 2023 is 34 months.
The following table summarizes information about the warrants outstanding at June 30, 2023:
Number of Warrants (#) |
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The fair value of warrants granted during the nine months ended June 30, 2023 was estimated using the Black-Scholes option valuation model using the following assumptions:
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| Nine Months Ended June 30, 2023 |
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| Nine Months Ended June 30, 2022 |
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| Class A Warrants |
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| Class B Warrants |
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| Common Warrants |
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Risk free interest rate |
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Expected life |
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Expected share price volatility |
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Expected dividend yield |
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| Table of Contents |
Pre-funded Warrants
A summary of the Company’s pre-funded warrants activity is as follows:
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| Number of Pre-funded Warrant Shares (#) |
| |
Nine Months Ended June 30, 2022 |
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Balance - September 30, 2021 |
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| - |
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Issued |
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Balance - June 30, 2022 |
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There were no pre-funded warrants during the nine months ended June 30, 2023.
Share Options
The Company adopted an Equity Incentive Compensation Plan in 2019 (the 2019 Plan) administered by the independent members of the Board of Directors, which amended and restated prior plans. Options, restricted shares and restricted share units are eligible for grant under the 2019 Plan. At June 30, 2023, the total number of shares available for issuance is
The Company’s 2019 Plan allows options to be granted to directors, officers, employees and certain external consultants and advisers. Under the 2019 Plan, the option term is not to exceed
Options granted for directors normally have monthly vesting in equal proportions over 12 months beginning on the grant date. Options granted for employees normally have monthly vesting in equal proportions over 36 months beginning on the grant date. Options granted for new employees normally have monthly vesting in equal proportions over
Options have been granted under the 2019 Plan allowing the holders to purchase common shares of the Company as follows:
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| Number of Options (#) |
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| Weighted Average Exercise Price |
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| Weighted Average Grant Date Fair Value |
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Nine Months Ended June 30, 2023 |
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Balance - September 30, 2022 |
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Granted |
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Forfeited |
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Expired |
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Balance - June 30, 2023 |
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Nine Months Ended June 30, 2022 |
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Balance - September 30, 2021 |
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Granted |
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Exercised |
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Balance - June 30, 2022 |
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During the nine months ended June 30, 2023, the independent members of the Board of Directors granted
| 12 |
| Table of Contents |
The weighted average contractual life remaining on the outstanding options at June 30, 2023 is
The following table summarizes information about the options under the 2019 Plan outstanding and exercisable at June 30, 2023:
Number of Options (#) |
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| Exercisable at June 30, 2023 (#) |
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| Range of Exercise Prices |
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| Expiry Dates | ||||
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The fair value of options granted during the nine months ended June 30, 2023 and 2022 was estimated using the Black-Scholes option valuation model using the following assumptions:
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| Nine Months Ended |
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| June 30, 2023 |
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| Expected life |
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| Expected dividend yield |
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The Company recorded $
As of June 30, 2023, the Company had $
7. Reimbursement Grant Income and Receivable
Reimbursement grant income for the Company’s federal grant with the Canadian government’s Strategic Innovation Fund (SIF) is recorded based on the claim period of eligible costs. At June 30, 2023, the grant program is complete and all grant reimbursements have been received.
8. Financial Instruments
(a) Fair values
The Company uses the fair value measurement framework for valuing financial assets and liabilities measured on a recurring basis in situations where other accounting pronouncements either permit or require fair value measurements.
The Company follows the fair value hierarchy which requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. Observable inputs are inputs that reflect assumptions market participants would use in pricing the asset or liability developed based on market data obtained from sources independent of the Company. Unobservable inputs are inputs that reflect the Company’s own assumptions about the assumptions market participants would use in pricing the asset or liability developed based on the best information available in the circumstances.
There are three levels of inputs that may be used to measure fair value:
· | Level 1 - Observable inputs that reflect quoted prices (unadjusted) for identical assets or liabilities in active markets. |
· | Level 2 - Inputs other than quoted prices included in Level 1 that are observable for the asset or liability, either directly or indirectly. Level 2 inputs include quoted prices for similar assets or liabilities in active markets, or quoted prices for identical or similar assets and liabilities in markets that are not active. |
· | Level 3 - Unobservable inputs for the asset or liability that are supported by little or no market activity. |
| 13 |
| Table of Contents |
The carrying value of certain financial instruments such as cash and cash equivalents, accounts and other receivable, accounts payable and accrued liabilities approximates fair value due to the short-term nature of such instruments. The fair value of lease obligations on right-of-use assets approximates carrying value due to a fixed lease rate, which represents market rate.
(b) Interest rate and credit risk
Interest rate risk is the risk that the value of a financial instrument might be adversely affected by a change in interest rates. The Company does not believe that the results of operations or cash flows would be affected to any significant degree by a significant change in market interest rates, relative to interest rates on cash and cash equivalents due to the short-term nature of these balances.
The Company is also exposed to credit risk at period end from the carrying value of its cash and cash equivalents and accounts and other receivable. The Company manages this risk by maintaining bank accounts with Canadian Chartered Banks, U.S. banks believed to be credit worthy and money market mutual funds of U.S. government securities. The Company’s cash is not subject to any external restrictions. The Company assesses the collectability of accounts receivable through a review of the current aging and terms, as well as an analysis of historical collection rates, general economic conditions and credit status of government agencies. Credit risk for the HST refunds receivable are not considered significant since amounts are due from the Canada Revenue Agency.
(c) Foreign exchange risk
The Company and its Canadian subsidiary have balances in Canadian dollars that give rise to exposure to foreign exchange (FX) risk relating to the impact of translating certain non-U.S. dollar balance sheet accounts as these statements are presented in U.S. dollars. A strengthening U.S. dollar will lead to a FX loss while a weakening U.S. dollar will lead to a FX gain. The Company has not entered into any agreements or purchased any instruments to hedge possible currency risks. At June 30, 2023, the Company and its Canadian subsidiary had assets denominated in Canadian dollars of approximately C$
(d) Liquidity risk
Liquidity risk is the risk that the Company will encounter difficulty raising liquid funds to meet commitments as they fall due. In meeting its liquidity requirements, the Company closely monitors its forecasted cash requirements with expected cash drawdown.
9. Loss per Share
The Company had securities outstanding which could potentially dilute basic earnings per share in the future but were excluded from the computation of diluted loss per share in the periods presented, as their effect would have been anti-dilutive.
10. Related Party Transactions
During each of three and nine months ended June 30, 2023 and 2022, the Company paid cash of $
11. Subsequent Events
Subsequent to June 30, 2023, equity sales under the Company’s at-the-market offering program have resulted in the issuance of
Subsequent to the quarter end, the Company granted
| 14 |
| Table of Contents |
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
The following management’s discussion and analysis of our financial condition and results of operations should be read in conjunction with the unaudited condensed interim consolidated financial statements and notes thereto included in Part I, Item 1 of this Quarterly Report on Form 10-Q as of June 30, 2023 and our audited consolidated financial statements for the year ended September 30, 2022 included in our Annual Report on Form 10-K, as amended, filed with the Securities and Exchange Commission (the “SEC”) on December 16, 2022.
This Quarterly Report on Form 10-Q contains forward-looking statements. When used in this report, the words “expects,” “anticipates,” “suggests,” “believes,” “intends,” “estimates,” “plans,” “projects,” “continue,” “ongoing,” “potential,” “expect,” “predict,” “believe,” “intend,” “may,” “will,” “should,” “could,” “would” and similar expressions are intended to identify forward-looking statements. You should not place undue reliance on these forward-looking statements. Our actual results could differ materially from those anticipated in the forward-looking statements for many reasons, including the risks described in our Annual Report on Form 10-K for the year ended September 30, 2022 and other reports we file with the Securities and Exchange Commission. Although we believe the expectations reflected in the forward-looking statements are reasonable, they relate only to events as of the date on which the statements are made. We do not intend to update any of the forward-looking statements after the date of this report to conform these statements to actual results or to changes in our expectations, except as required by law.
The discussion and analysis of our financial condition and results of operations are based on our unaudited condensed interim consolidated financial statements as of June 30, 2023 and September 30, 2022, and for the three and nine months ended June 30, 2023 and 2022 included in Part I, Item 1 of this Quarterly Report on Form 10-Q, which we have prepared in accordance with U.S. generally accepted accounting principles for interim financial information and with the instructions to Form 10-Q. The preparation of these financial statements requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements, as well as the reported revenues and expenses during the reporting periods. On an ongoing basis, we evaluate such estimates and judgments, including those described in greater detail below. We base our estimates on historical experience and on various other factors that we believe are reasonable under the circumstances, the results of which form the basis for making judgments about the carrying value of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions.
Overview
We are a biopharmaceutical company developing innovative ways to treat inflammatory and immune-related diseases.
Our approach is to acquire, develop and commercialize drug candidates based on mechanisms of action that have demonstrated proof-of-concept in human subjects. We prioritize our efforts on disease indications where there is compelling scientific rationale, no approved therapies or where there are unmet medical needs, and where there are large addressable market opportunities, among other factors. We have multiple late-stage product candidates in our development pipeline.
Our most advanced drug candidate is EB05 (paridiprubart), a monoclonal antibody developed for acute and chronic disease indications that involve dysregulated innate immunity responses. EB05 inhibits toll-like receptor 4 (TLR4), a key immune signaling protein and an important mediator of inflammation. We are currently evaluating EB05 as a potential treatment for Acute Respiratory Distress Syndrome (ARDS), a life-threatening form of respiratory failure. In September 2022, we reported final results from the Phase 2 part of a Phase 2/Phase 3 study of EB05 in ARDS patients who were hospitalized for Covid-19-related respiratory disease. Among the findings, EB05 demonstrated statistically significant mortality reductions in critically ill hospitalized patients treated with EB05 plus Standard of Care treatment (SOC). Based in part of these findings, the U.S. Food and Drug Administration (FDA) granted us a Fast Track designation. We are currently enrolling patients in the Phase 3 part of the EB05 study.
In addition to EB05, we are developing product candidates for a number of chronic dermatological and inflammatory conditions. We recently reported preliminary, topline results from a Phase 2b clinical study evaluating multiple concentrations of our drug candidate, EB01, as a monotherapy for moderate-to-severe chronic Allergic Contact Dermatitis (ACD), a common occupational skin condition. Among the preliminary findings, 1.0% EB01 (daniluromer) cream demonstrated statistically significant improvement over placebo for the primary endpoint and a key secondary endpoint. We are preparing for an End of Phase 2 meeting with FDA following full analysis. In January 2023, Health Canada approved our clinical trial application (CTA) for our EB06 monoclonal antibody candidate to conduct a future Phase 2 study in vitiligo, a common autoimmune disorder that causes skin to lose its color in patches. We are also preparing an investigational new drug application (IND) in the United States for our EB07 (paridiprubart) product candidate to conduct a future Phase 2 study in systemic sclerosis (SSc), an autoimmune rheumatic disorder that causes fibrosis (scarring/hardening) of skin and internal organs.
| 15 |
| Table of Contents |
Recent Developments
EB05 (paridiprubart)
In June 2023, we announced positive findings from an in vitro study of paridiprubart against a panel of respiratory pathogens. The research results demonstrated that inflammation signaling from multiple pathogens, including Influenza A, coronavirus and a common bacterium (H. influenzae), was inhibited by paridiprubart. Based on these findings and our clinical experience with paridiprubart, we believe that our drug candidate could provide an effective treatment for ARDS caused by, among others, coronaviruses, pandemic influenza and harmful bacteria. The in vitro study was conducted in collaboration with the University of Toronto under a grant from the Government of Canada's Strategic Innovation Fund.
In March 2023, we announced that the company and the FDA agreed on the primary endpoint and population for the Phase 3 part of a Phase 2/3 study evaluating our monoclonal antibody candidate, EB05, as a therapy for hospitalized Covid-19 patients with ARDS. Under the amended protocol design, Edesa will evaluate a single cohort of severely ill patients on invasive mechanical ventilation, both with and without additional organ support such as extracorporeal membrane oxygenation (ECMO). Edesa plans to enroll approximately 600 evaluable hospitalized subjects. The primary endpoint will be the mortality rate at 28 days. Last year, Canadian regulators approved a similar Phase 3 study of EB05 in Covid-19-induced ARDS among two separate cohorts of patients, and we are evaluating potential future harmonization of the Canadian protocol with the U.S. protocol. With recruitment open in both the U.S. and Canada, we discontinued recruitment at secondary sites, which were located in Poland and Colombia.
In April 2023, we announced the World Health Organization and the United States Adopted Name (USAN) Council have adopted the international nonproprietary name “paridiprubart” for our anti-TLR4 monoclonal antibody candidate.
Based on current hospitalization trends and our recruitment experience, we believe that Covid-19-related hospitalization patterns have become more predictable and seasonal in nature, similar to those of influenza, with increased hospitalizations and deaths anticipated in the fall/winter and among populations and geographies with low booster/vaccination rates. As a result, we believe that the pace of future enrollment will be more closely linked to the number and location of investigational sites we activate rather than the unpredictable waves of the pandemic. Subject to funding, we plan to increase the number of investigational centers from 23 to up to 60 hospitals in the U.S. and Canada. We have the flexibility to adjust the timing of these and other clinical trial expenditures to manage our working capital.
In addition to Covid-19 induced ARDS, we are also exploring various approaches to evaluate our EB05 (paridiprubart) drug candidate in a general ARDS population, including, among other potential options, participating in a government-sponsored platform study, amending our current Phase 3 study protocol to include non-Covid-19 ARDS patients and initiating a separate study or cohort. Given the broader pool of patients, we believe a harmonized or general ARDS study could increase efficiency and expedite development timelines as well as validate the broader potential utility of paridiprubart. Any changes we make to our clinical study protocol may impact how previously enrolled subjects are categorized and/or included in the study’s results.
EB01 (daniluromer)
In June 2023, we announced the assignment of the name "daniluromer" to the active pharmaceutical ingredient in our EB01 drug candidate, a topical formulation of daniluromer that we are developing as a treatment for Allergic Contact Dermatitis. We expect daniluromer to be published in an upcoming World Health Organization (WHO) list of recommended international nonproprietary names. The WHO, under its International Nonproprietary Names program, provides a globally recognized system for selecting unique names to identify pharmaceutically active substances.
Significant Accounting Policies and Estimates
See Note 3 to our financial statements included in our Annual Report on Form 10-K for the year ended September 30, 2022 for a discussion of our significant accounting policies and estimates. There have been no material changes to such critical accounting policies or estimates.
Results of Operations
Comparison of the Three Months Ended June 30, 2023 and 2022
Total operating expenses decreased by $3.74 million to $2.06 million for the three months ended June 30, 2023 compared to $5.80 million for the same period last year:
| · | Research and development expenses decreased by $3.52 million to $1.03 million for the three months ended June 30, 2023 compared to $4.55 million for the same period last year primarily due to decreased external research expenses related to our ongoing clinical studies and manufacturing of our investigational drugs. In the comparative period, the Company purchased bulk drug product of EB05 for its clinical study for $2.54 million. |
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| · | General and administrative expenses decreased by $0.21 million to $1.04 million for the three months ended June 30, 2023 compared to $1.25 million for the same period last year primarily due to decreased non-cash share-based compensation. |
Total other income increased by $0.07 million to $0.08 million for the three months ended June 30, 2023 compared to $0.01 million for the same period last year primarily due to an increase in interest earned on cash balances.
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For the three months ended June 30, 2023, our net loss was $1.98 million, or $0.10 per common share, compared to a net loss of $5.79 million, or $0.37 per common share, for the three months ended June 30, 2022.
Comparison of the Nine Months Ended June 30, 2023 and 2022
Total operating expenses decreased by $8.68 million to $6.85 million for the nine months ended June 30, 2023 compared to $15.53 million for the same period last year:
| · | Research and development expenses decreased by $7.70 million to $3.84 million for the nine months ended June 30, 2023 compared to $11.54 million for the same period last year primarily due to decreased external research expenses related to our ongoing clinical studies and manufacturing of our investigational drugs, and a decrease in non-cash share-based compensation. |
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| · | General and administrative expenses decreased by $0.98 million to $3.01 million for the nine months ended June 30, 2023 compared to $3.99 million for the same period last year primarily due to decreased personnel expenses and non-cash share-based compensation. |
Total other income decreased by $0.60 million to $0.20 million for the nine months ended June 30, 2023 compared to $0.80 million for the same period last year primarily due to a decrease in grant income associated with the completion of clinical study activities under our federal reimbursement grant with the Canadian government’s Strategic Innovation Fund.
For the nine months ended June 30, 2023, our net loss was $6.65 million, or $0.34 per common share, compared to a net loss of $14.74 million, or $1.04 per common share, for the nine months ended June 30, 2022.
Capital Expenditures
Our capital expenditures primarily consist of computer and office equipment. There were no significant capital expenditures for the three and nine months ended June 30, 2023 and 2022.
Liquidity and Capital Resources
As a clinical-stage company we have not generated significant revenue, and we expect to incur operating losses as we continue our efforts to acquire, develop, seek regulatory approval for and commercialize product candidates and execute on our strategic initiatives. Our operations have historically been funded through issuances of common shares, exercises of common share purchase warrants, convertible preferred shares, convertible loans, government grants and tax incentives. For the nine-month periods ended June 30, 2023 and 2022, we reported net losses of $6.65 million and $14.74 million, respectively.
On March 27, 2023, we entered into an equity distribution agreement with Canaccord Genuity LLC (Canaccord), as sales agent, pursuant to which the Company may offer and sell, from time to time, common shares through an at-the-market equity offering program for up to $20 million in gross cash proceeds, subject to certain offering limitations that currently allow the Company to offer and sell common shares having an aggregate gross sales price of up to $8.37 million. Canaccord will use commercially reasonable efforts to sell the common shares from time to time, based upon our instructions. We have no obligation to sell any of the common shares and may at any time suspend sales under the equity distribution agreement or terminate the equity distribution agreement in accordance with its terms. The total amount of cash that may be generated under this equity distribution agreement is uncertain and depends on a variety of factors, including market conditions and the trading price of our common shares. For the three months ended June 30, 2023, we sold a total of 808,107 common shares pursuant to the agreement. After deducting commissions and costs, net proceeds totaled $0.69 million. Subsequent to the quarter end, sales under the agreement have resulted in the issuance of 226,882 common shares and receipt of net cash proceeds of $0.19 million after deducting sales agent commissions.
In November 2022, we completed a private placement of units consisting of 2,691,337 common shares, three-year warrants to purchase up to an aggregate of 1,345,665 common shares (Class A warrants) and twelve-month warrants to purchase up to an aggregate of 1,345,665 common shares (Class B warrants). The gross proceeds from this offering are approximately $3.03 million, before offering expenses. During the nine months ended June 30, 2023, 705,314 shares have been issued upon the exercise of Class A and Class B warrants, with proceeds to the Company of $0.77 million.
In March 2022, we completed a registered direct offering of 1,540,000 common shares, no par value, and pre-funded warrants to purchase up to an aggregate of 1,199,727 common shares. In a concurrent private placement, we issued common share purchase warrants to purchase an aggregate of up to 2,739,727 common shares. After deducting the placement agent fees and offering expenses, net proceeds to the Company were approximately $9.01 million.
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From November 2021 to March 2022, we sold a total of 626,884 common shares under an “at-the-market” equity distribution program which resulted in net proceeds of $2.62 million after deducting commissions and direct costs.
Under our contribution agreement with the Canadian government’s Strategic Innovation Fund (SIF), we were eligible to receive cash reimbursements up to C$14.05 million (approximately $11 million USD) in the aggregate for certain research and development expenses related to our EB05 clinical development program. For the years ended September 30, 2022 and 2021, we recorded grant income of $0.78 million and $10.34 million respectively. All grant reimbursements were received by December 31, 2022.
At June 30, 2023, we had cash and cash equivalents of $6.46 million, working capital of $5.39 million, shareholders’ equity of $7.85 million and an accumulated deficit of $50.70 million. We plan to finance company operations over the course of the next twelve months with cash and cash equivalents on hand and equity sales under the at-the-market offering program. Management has flexibility to adjust this timeline by making changes to planned expenditures related to, among other factors, the size and timing of clinical trial expenditures and manufacturing campaigns, staffing levels, and the acquisition or in-licensing of new product candidates. To help fund our operations and meet our obligations in the future, we plan to seek additional financing through the sale of equity, government grants, debt financings or other capital sources, including potential future licensing, collaboration or similar arrangements with third parties or other strategic transactions. There is no assurance that adequate funding will be available to us or, if available, that such funding will be available on terms that we or our shareholders view as favorable. Market volatility, inflation, interest rates, government policies and concerns related to the war in Ukraine and the Covid-19 pandemic may have a significant impact on the availability of funding sources and the terms at which any funding may be available.
Research and Development
Our primary business is the development of innovative therapeutics for inflammatory and immune-related diseases with clear unmet medical needs. We focus our resources on research and development activities, including the conduct of clinical studies and product development, and expense such costs as they are incurred. Our research and development expenses have primarily consisted of employee-related expenses, including salaries, benefits, taxes, travel and share-based compensation expense for personnel in research and development functions; expenses related to process development and production of product candidates paid to contract manufacturing organizations and contract testing organizations, including the cost of acquiring, developing, and manufacturing research material; costs associated with clinical activities, including expenses for contract research organizations; and clinical trials and activities related to regulatory filings for our product candidates, including regulatory consultants.
Research and development expenses, which have historically varied based on the level of activity in our clinical programs, are significantly influenced by study initiation expenses and patient recruitment rates, and as a result are expected to continue to fluctuate, sometimes substantially. Our research and development costs were $3.84 million and $11.54 million for the nine months ended June 30, 2023 and 2022, respectively. The decrease was due primarily to decreased external research expenses related to our ongoing clinical studies and manufacturing of our investigational drugs.
Off-Balance Sheet Arrangements
We do not have any off-balance sheet arrangements that have or are reasonably likely to have a current or future material effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures, or capital resources.
Item 3. Quantitative and Qualitative Disclosures About Market Risk.
We are a smaller reporting company and are not required to provide disclosure under this item.
Item 4. Controls and Procedures.
Disclosure Controls and Procedures
Our management is responsible for establishing and maintaining disclosure controls and procedures to provide reasonable assurance that material information related to our Company, including our consolidated subsidiaries, is made known to senior management, including our Chief Executive Officer and Chief Financial Officer, by others within those entities on a timely basis so that appropriate decisions can be made regarding public disclosure.
We carried out an evaluation, under the supervision and with the participation of our management, including our Principal Executive Officer and our Principal Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e)) under the Securities and Exchange Act of 1934, as amended) as of June 30, 2023. Our Chief Executive Officer and Chief Financial Officer concluded that the disclosure controls and procedures, as of June 30, 2023, were effective.
Changes in Internal Control over Financial Reporting
There were no changes in our internal control over financial reporting that occurred during the quarter ended June 30, 2023 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
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PART II — OTHER INFORMATION
Item 1. Legal Proceedings.
From time to time, we may be involved in legal proceedings, claims and litigation arising in the ordinary course of business. We are not currently a party to any material legal proceedings or claims outside the ordinary course of business. Regardless of outcome, litigation can have an adverse impact on us because of defense and settlement costs, diversion of management resources and other factors.
Item 1A. Risk Factors.
There have been no material changes to the risk factors discussed in Item 1A. Risk Factors in our Annual Report on Form 10-K for the year ended September 30, 2022, filed with the Securities and Exchange Commission on December 16, 2022.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.
None.
Item 3. Defaults Upon Senior Securities.
None.
Item 4. Mine Safety Disclosures.
Not applicable.
Item 5. Other Information.
Amended and Restated Employment Agreement with Pardeep Nijhawan
On August 4, 2023, the Company entered into an amended and restated employment agreement with Pardeep Nijhawan, the Company’s Chief Executive Officer (the “Nijhawan Employment Agreement”).
Pursuant to the Nijhawan Employment Agreement, Dr. Nijhawan serves as the Company’s Chief Executive Officer as well as Chief Executive Officer of each of the Company’s subsidiaries, Edesa Biotech Research, Inc. and Edesa Biotech USA, Inc. and a director of Edesa Biotech Research, Inc. Dr. Nijhawan’s employment will continue for an indefinite term until terminated in accordance with the Nijhawan Employment Agreement.
Pursuant to the Nijhawan Employment Agreement, Dr. Nijhawan is entitled to a base salary of $357,700 per year and is eligible to receive a target annual bonus of 40% of his base salary, subject to the achievement of corporate and personal targets as determined by the Company and the Board of Directors. Dr. Nijhawan’s base salary is subject to annual review by the Board of Directors. Dr. Nijhawan is also entitled to an automobile allowance of $2,701.50 per month and is eligible to participate in the Company’s group insured benefits program, as may be in effect from time-to-time for employees generally, and executive employees specifically. Dr. Nijhawan is eligible for equity-based awards pursuant to the Company’s Equity Incentive Compensation Plan, as determined by the Board of Directors or Compensation Committee, commensurate with Dr. Nijhawan’s position and any business milestones that may be established by the Company.
If Dr. Nijhawan’s employment is terminated for “Cause” (as such term is defined in the Nijhawan Employment Agreement), subject to applicable law, Dr. Nijhawan is entitled to his base salary and vacation pay earned through the date of termination, and all of Dr. Nijhawan’s non-vested equity-based awards will be automatically extinguished. All vested equity-based awards shall be subject to the terms of the Company’s Equity Incentive Compensation Plan.
If Dr. Nijhawan is terminated without “Cause”, subject to Dr. Nijhawan signing a general release of claims, Dr. Nijhawan is entitled to: (i) a lump sum payment equal to Dr. Nijhawan’s then current base salary for 12 months plus one additional month for every completed year of service since August 1, 2017 (the “Nijhawan Severance Period”) which shall not exceed 24 months, inclusive of, and not in addition to, his notice and severance entitlements, if any, pursuant to applicable law, (ii) a lump sum payment of the annual bonus to which Dr. Nijhawan is entitled for the calendar year immediately preceding the date of termination, if such bonus has not already been paid, (iii) a lump sum payment equal to Dr. Nijhawan’s annual bonus entitlement, prorated over Dr. Nijhawan’s length of service in the calendar year in which his employment is terminated, calculated in accordance with the terms of the Nijhawan Employment Agreement, (iv) payment of Dr. Nijhawan’s annual bonus entitlement during the full Nijhawan Severance Period, calculated in accordance with the terms of the Nijhawan Employment Agreement, (v) continuation of Dr. Nijhawan’s benefits and car allowance and any other benefit required to be maintained by law in accordance with the terms of the Nijhawan Employment Agreement, and (vi) subject to applicable law, all vested equity-based awards granted to Dr. Nijhawan shall be exercisable in accordance with the terms of the applicable Equity Incentive Compensation Plan.
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In the event that Dr. Nijhawan is terminated or constructively terminated, which includes a material change in Dr. Nijhawan’s title, responsibilities, authority or status or a material reduction of his compensation, without “Cause” upon or within a 12-month period following a “Change of Control” (as such term is defined in the Nijhawan Employment Agreement), Dr. Nijhawan is entitled to (i) a change of control payment equal to 24 months of the value of Dr. Nijhawan’s then current base salary as of the date of termination, (ii) a lump sum payment of the annual bonus to which Dr. Nijhawan is entitled for the calendar year immediately preceding the date of termination, if such bonus has not already been paid, (iii) a lump sum payment equal to Dr. Nijhawan’s annual bonus entitlement, prorated over Dr. Nijhawan’s length of service in the calendar year in which his employment is terminated, calculated in accordance with the terms of the Nijhawan Employment Agreement, (iv) payment of Dr. Nijhawan’s annual bonus entitlement during the full Nijhawan Severance Period, calculated in accordance with the terms of the Nijhawan Employment Agreement, (v) continuation of Dr. Nijhawan’s benefits and car allowance and any other benefit required to be maintained by law in accordance with the terms of the Nijhawan Employment Agreement, and (vi) subject to applicable law, all vested equity-based awards granted to Dr. Nijhawan shall be exercisable in accordance with the terms of the applicable Equity Incentive Compensation Plan.
Dr. Nijhawan may resign from his employment at any time by providing the Company with a minimum of 60 days advance notice, in writing. Dr. Nijhawan’s notice may be waived by the Company, subject only to providing Dr. Nijhawan with payment of his base salary and continuation of benefits until the end of the notice period. If Dr. Nijhawan resigns from his employment, subject to applicable law, (i) all non-vested equity based awards held by Dr. Nijhawan shall be automatically extinguished and (ii) Dr. Nijhawan shall not be entitled to any bonus or pro rata bonus payment not already awarded on or before the date of termination. All vested equity-based awards shall be subject to the terms of the applicable Equity Incentive Compensation Plan.
During the term of Dr. Nijhawan’s employment and for 12 months following the cessation of Dr. Nijhawan’s employment, Dr. Nijhawan is prohibited from competing with the business of the Company in North America. In addition, for 24 months following the cessation of Dr. Nijhawan’s employment, Dr. Nijhawan is prohibited from soliciting customers or prospective customers for any purpose competitive with the business of the Company, encouraging any customer to cease doing business with the Company and soliciting the employment or engagement of certain of Company’s employees.
Amended and Restated Employment Agreement with Michael Brooks
On August 4, 2023, the Company entered into an amended and restated employment agreement with Michael Brooks, the Company’s President (the “Brooks Employment Agreement”).
Pursuant to the Brooks Employment Agreement, Dr. Brooks serves as the Company’s President as well as President and a director of the Company’s subsidiary, Edesa Biotech Research, Inc. Dr. Brooks’ employment will continue for an indefinite term until terminated in accordance with the Brooks Employment Agreement.
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Pursuant to the Brooks Employment Agreement, Dr. Brooks is entitled to a base salary of $335,340 per year and is eligible to receive a target annual bonus of 40% of his base salary, subject to the achievement of corporate and personal targets as determined by the Company and the Board of Directors. Dr. Brooks’ base salary is subject to annual review by the Board of Directors. Dr. Brooks is also entitled to an automobile allowance of $2,000 per month and is eligible to participate in the Company’s group insured benefits program, as may be in effect from time-to-time for employees generally, and executive employees specifically. Dr. Brooks is eligible for equity-based awards pursuant to the Company’s Equity Incentive Compensation Plan, as determined by the Board of Directors or Compensation Committee, commensurate with Dr. Brooks’ position and any business milestones that may be established by the Company.
If Dr. Brooks’ employment is terminated for “Cause” (as such term is defined in the Brooks Employment Agreement), subject to applicable law, Dr. Brooks is entitled to his base salary and vacation pay earned through the date of termination, and all of Dr. Brooks’ non-vested equity-based awards will be automatically extinguished. All vested equity-based awards shall be subject to the terms of the Company’s Equity Incentive Compensation Plan.
If Dr. Brooks is terminated without “Cause”, subject to Dr. Brooks signing a general release of claims, Dr. Brooks is entitled to: (i) a lump sum payment equal to Dr. Brooks’ then current base salary for 12 months plus one additional month for every completed year of service since September 1, 2015 (the “Brooks Severance Period”) which shall not exceed 24 months, inclusive of, and not in addition to, his notice and severance entitlements, if any, pursuant to applicable law, (ii) a lump sum payment of the annual bonus to which Dr. Brooks is entitled for the calendar year immediately preceding the date of termination, if such bonus has not already been paid, (iii) a lump sum payment equal to Dr. Brooks’ annual bonus entitlement, prorated over Dr. Brooks’ length of service in the calendar year in which his employment is terminated, calculated in accordance with the terms of the Brooks Employment Agreement, (iv) payment of Dr. Brooks’ annual bonus entitlement during the full Brooks Severance Period, calculated in accordance with the terms of the Brooks Employment Agreement, (v) continuation of Dr. Brooks’ benefits and car allowance and any other benefit required to be maintained by law in accordance with the terms of the Brooks Employment Agreement, and (vi) subject to applicable law, all vested equity-based awards granted to Dr. Brooks shall be exercisable in accordance with the terms of the applicable Equity Incentive Compensation Plan.
In the event that Dr. Brooks is terminated or constructively terminated, which includes a material change in Dr. Brooks’ title, responsibilities, authority or status or a material reduction of the Employee’s compensation, without cause upon or within a 12-month period following a “Change of Control” (as such term is defined in the Brooks Employment Agreement), Dr. Brooks is entitled to (i) a change of control payment equal to 24 months of the value of Dr. Brooks’ then current base salary as of the date of termination, (ii) a lump sum payment of the annual bonus to which Dr. Brooks is entitled for the calendar year immediately preceding the date of termination, if such bonus has not already been paid, (iii) a lump sum payment equal to Dr. Brooks’ annual bonus entitlement, prorated over Dr. Brooks’ length of service in the calendar year in which his employment is terminated, calculated in accordance with the terms of the Brooks Employment Agreement, (iv) payment of Dr. Brooks’ annual bonus entitlement during the full Brooks Severance Period, calculated in accordance with the terms of the Brooks Employment Agreement, (v) continuation of Dr. Brooks’ benefits and car allowance and any other benefit required to be maintained by law in accordance with the terms of the Brooks Employment Agreement, and (vi) subject to applicable law, all vested equity-based awards granted to Dr. Brooks shall be exercisable in accordance with the terms of the applicable Equity Incentive Compensation Plan.
Dr. Brooks may resign from his employment at any time by providing the Company with a minimum of 60 days advance notice, in writing. Dr. Brooks’ notice may be waived by the Company, subject only to providing Dr. Brooks with payment of his base salary and continuation of benefits until the end of the notice period. If Dr. Brooks resigns from his employment, subject to applicable law, (i) all non-vested equity based awards held by Dr. Brooks shall be automatically extinguished and (ii) Dr. Brooks shall not be entitled to any bonus or pro rata bonus payment not already awarded on or before the date of termination. All vested equity-based awards shall be subject to the terms of the applicable Equity Incentive Compensation Plan.
During the term of Dr. Brooks’ employment and for 12 months following the cessation of Dr. Brooks’ employment, Dr. Brooks is prohibited from competing with the business of the Company in North America. In addition, for 24 months following the cessation of Dr. Brooks’ employment, Dr. Brooks is prohibited from soliciting customers or prospective customers for any purpose competitive with the business of the Company, encouraging any customer to cease doing business with the Company and soliciting the employment or engagement of certain of Company’s employees.
The descriptions of the Nijhawan Employment Agreement and Brooks Employment Agreement do not purport to be complete and are qualified in their entireties by reference to the full texts of the Nijhawan Employment Agreement and Brooks Employment Agreement, which have been filed as Exhibits 10.3 and 10.4 to this Quarterly Report and are incorporated herein by reference.
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Item 6. Exhibits
EXHIBIT INDEX
Exhibit No. |
| Description |
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101.INS |
| XBRL Instance Document |
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101.SCH |
| XBRL Taxonomy Extension Schema Document |
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101.CAL |
| XBRL Taxonomy Calculation Linkbase Document |
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101.DEF |
| XBRL Taxonomy Extension Definition Linkbase Document |
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101.LAB |
| XBRL Taxonomy Label Linkbase Document |
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101.PRE |
| XBRL Taxonomy Presentation Linkbase Document |
* The information in this exhibit is furnished and deemed not filed with the Securities and Exchange Commission for purposes of section 18 of the Exchange Act of 1934, as amended, and is not to be incorporated by reference into any filing of Edesa Biotech, Inc. under the Securities Act of 1933, as amended, or the Exchange Act of 1934, as amended, whether made before or after the date hereof, regardless of any general incorporation language in such filing.
+ Management contract or compensatory plan or arrangement.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| EDESA BIOTECH, INC. | |||
| Date: August 9, 2023 | By: | /s/ Stephen Lemieux | |
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| Stephen Lemieux, Chief Financial Officer | |
| (Principal Financial Officer and Duly Authorized Officer) | |||
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EXHIBIT 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO SECTION 302(a) OF THE SARBANES-OXLEY ACT OF 2002
(18 U.S.C. SECTION 1350)
I, Pardeep Nijhawan, certify that:
| 1. | I have reviewed this Quarterly Report on Form 10-Q of Edesa Biotech, Inc.; |
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| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
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| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
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| 4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
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| a. | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
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| b. | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
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| c. | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
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| d. | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
| 5. | The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
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| a. | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
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| b. | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
| Date: August 9, 2023. | By: | /s/ Pardeep Nijhawan | |
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| Pardeep Nijhawan | |
| Director, Chief Executive Officer and Corporate Secretary (Principal Executive Officer) |
EXHIBIT 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO SECTION 302(a) OF THE SARBANES-OXLEY ACT OF 2002
(18 U.S.C. SECTION 1350)
I, Stephen Lemieux, certify that:
| 1. | I have reviewed this Quarterly Report on Form 10-Q of Edesa Biotech, Inc.; |
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| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
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| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
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| 4. | The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
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| a. | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
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| b. | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
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| c. | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
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| d. | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
| 5. | The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
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| a. | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
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| b. | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
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| Date: August 9, 2023. | By: | /s/ Stephen Lemieux | |
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| Stephen Lemieux | |
| Chief Financial Officer (Principal Financial Officer) |
EXHIBIT 32.1
CERTIFICATION OF THE CHIEF EXECUTIVE OFFICER PURSUANT TO 18 U.S.C. 1350, AS ADOPTED PURSUANT TO SECTION 906
OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Edesa Biotech, Inc. (the Company) on Form 10-Q for the quarter ended June 30, 2023, as filed with the Securities and Exchange Commission on the date hereof (the Report), I, Pardeep Nijhawan, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
| 1. | The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
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| 2. | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
| Date: August 9, 2023. | By: | /s/ Pardeep Nijhawan | |
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| Pardeep Nijhawan | |
| Director, Chief Executive Officer and Corporate Secretary | |||
| (Principal Executive Officer) |
EXHIBIT 32.2
CERTIFICATION OF THE CHIEF FINANCIAL OFFICER PURSUANT TO 18 U.S.C. 1350, AS ADOPTED PURSUANT TO SECTION 906
OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report of Edesa Biotech, Inc. (the Company) on Form 10-Q for the quarter ended June 30, 2023, as filed with the Securities and Exchange Commission on the date hereof (the Report), I, Stephen Lemieux, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
| 1. | The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
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| 2. | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
| Date: August 9, 2023. | By: | /s/ Stephen Lemieux | |
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| Stephen Lemieux | |
| Chief Financial Officer | |||
| (Principal Financial Officer) |
EXHIBIT 10.3
Amended and Restated Employment Agreement
THIS AMENDED AND RESTATED AGREEMENT is made as of August 4, 2023 (the “Agreement”) and amends and replaces in its entirely the employment agreement between the Company (as defined below) and the Employee (as defined below) made as of June 14, 2019, as amended on March 19, 2021 and April 12, 2022 (the “Old Employment Agreement”);
Between:
EDESA BIOTECH INC., a company incorporated pursuant to the laws of the Province of British Columbia (hereinafter referred to as “the Employer” or “the Company”)
AND
Pardeep Nijhawan of the City of Markham, in the Province of Ontario (hereinafter referred to as the “Employee”)
WHEREAS the Employer and the Employee wish to amend and restate the terms and conditions of the Old Employment Agreement;
AND WHEREAS the Employee confirms that he has the skills and knowledge to perform the duties of the position of Chief Executive Officer and has not misrepresented his experience or qualifications for the position;
In consideration of the payments, mutual covenants and other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged by the parties), it is agreed by and between the parties as follows:
1. TERM OF EMPLOYMENT
The employment of the Employee commenced on August 1, 2017, and will continue for an indefinite term until terminated in accordance with this Agreement.
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2. DUTIES AND RESPONSIBILITIES
The Employee shall be employed in the position of Chief Executive Officer (“CEO”) for the Company, and subject to the direction otherwise by the Company, will also act as CEO, and Director to its affiliated entity Edesa Biotech Research, Inc. (“Edesa Research”), an Ontario corporation and CEO to its affiliated entity Edesa Biotech USA, Inc. (“Edesa USA”), a California corporation (collectively, the “Edesa Entities”). The Employee will be responsible for performing such duties as the Employer or its designee may reasonably assign, including all duties usually and customarily rendered by and required of a CEO of a publicly traded company, and including such duties as are described in any written job description that may be provided to the Employee and amended from time to time, provided that in no event may such an amendment or duties assigned to the Employee materially diminish the Employee’s level of responsibilities, title, and stature as CEO of the Employer.
The Employee shall devote his full time and attention to the business and affairs of the Company and the Edesa Entities and work those hours required to meet his duties and responsibilities hereunder.
During the term of his employment, the Employee will refrain from engaging in any activities in which the Employee’s personal interests conflict with the Employee’s duties, responsibilities, and attention to the affairs of the Company. As such, the Employee will not, directly or indirectly, engage or participate in any other business activities which conflict with the Employee’s duties, responsibilities, and attention to the affairs of the Company without the written consent of the Company.
The parties acknowledge that the Employee is actively engaged in the practice of medicine approximately twenty-five (25) hours per week (the “Other Work”) without conflict or interference with his duties, responsibilities and attention to the affairs of the Company. Notwithstanding the restrictions stated in the preceding paragraph, the Employer agrees that the Employee may continue to engage in the Other Work, provided that it continues not to conflict or interfere with the Employee’s duties, responsibilities and attention to the affairs of the Company.
3. COMPENSATION AND BENEFITS
In consideration of the services to be provided hereunder, the Employee, effective May 13, 2023 and during the term of his employment, shall be paid a gross annual base salary of $357,700 USD (“Base Salary”) payable in equal bi-weekly installments, in arrears, less applicable statutory deductions and withholdings. Salaries are reviewed annually in March on the basis of such factors as, but not limited to, merit, market performance, job grade and potential. However, any increase to the Employee's Base Salary is in the sole discretion of the Employer, as determined by the board of directors of the Company (“Board of Directors”).
The Employee shall be eligible for a target annual bonus of 40% of the Employee’s Base Salary, based on performance in the prior calendar year, subject to achieving corporate and personal targets to be determined by the Employer and the Board of Directors, taking into account input from the Employee regarding his personal targets. The Employee acknowledges that: (i) terms and conditions of the applicable bonus program may change each calendar year at the discretion of the Employer; (ii) there will be no guaranteed level of Bonus in any year.
The Employee will be eligible for equity-based awards under the Company’s Equity Incentive Compensation Plan as determined by the Board of Directors, commensurate with the Employee’s position and any business milestones which may be established by the Employer.
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The Employee shall receive an automobile allowance of $2,701.25 USD per month payable in accordance with the Employer’s practices and subject to applicable deductions.
Subject to the terms of applicable policies and plans, the Employee will be eligible to participate in the Employer's group insured benefits program, as may be in effect from time to time for its employees generally, and executive employees specifically. Benefits, coverages, policies and plans may be amended or terminated by the Employer at any time, without advance notice or other obligation, provided however that in the event of such amendment or termination, the Employer will either make available to the Employee benefits coverage substantially comparable in scope to the preceding coverage, or reimburse the Employee for the cost of obtaining private coverage substantially comparable in scope to the preceding coverage.
4. EXPENSES
The Employer shall reimburse the Employee for reasonable and documented expenses actually and necessarily incurred by the Employee in the performance of this Agreement, in accordance with the Employer’s policies and procedures.
5. VACATION
The Employer's vacation year is January 1st to December 31st.
During each full calendar year, the Employee will be entitled to six (6) weeks’ vacation, which shall accrue in accordance with the Employer’s vacation policy. Vacation is to be taken at a time acceptable to the Employer acting reasonably having regard to reasonable business requirements.
6. POLICIES AND PROCEDURES
As a term and condition of employment, the Employee agrees to comply with, and be bound by, the Employer's handbook and other employment policies and procedures. From time to time, the Employer's handbook and other policies and procedures may be changed by the Employer, in its sole discretion, without advance notice. It is the sole responsibility of the Employee to review and understand any changes to the Employer's handbook or other policies and procedures.
7. TERMINATION OF EMPLOYMENT
The Employer may terminate the employment of the Employee at any time:
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| (a) | for cause, in which case the employee shall receive payment of any Base Salary and vacation pay earned to the date of termination. Subject only to any minimum requirements to the contrary under the Employment Standards Act (Ontario) (“ESA”), all Base Salary, vacation pay accrual and participation in any other benefits (including group benefits and car allowance) will cease immediately upon the date of termination for cause, and no other bonus or other payments will be payable to the Employee. Furthermore, subject only to any minimum requirements to the contrary under the ESA, all non-vested equity-based awards shall be automatically extinguished. All vested equity-based awards shall be subject to the terms of the applicable Equity Incentive Compensation Plan. |
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“Cause” means the existence of just cause for termination of employment at common law as determined by the law of the province of Ontario, including but not limited to fraud, theft, dishonesty, illegality, conflict of interest, gross incompetence or breach of any material obligation under this Agreement.
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| (b) | without cause, in which case the Employee will be entitled to the following if the Employee executes a general release of claims in a form reasonably required by the Company substantially in the form attached in Schedule “A”, within thirty days after Employee’s termination date: |
(i) a lump sum payment equal to the Employee’s then Base Salary for twelve months plus one additional month for every completed year of service since August 1, 2017 (the “Severance Period”, which shall not exceed 24 months), inclusive of, and not in addition to, the Employee’s notice and severance entitlements (if any) pursuant to the ESA;
(ii) a lump sum payment of the annual bonus to which the Employee is entitled for the calendar year immediately preceding the date of termination, if such bonus has not already been paid;
(iii) a lump sum payment equal to the Employee’s annual bonus entitlement, prorated over the Employee’s length of service in the calendar year in which his employment was terminated, such annual bonus entitlement to be calculated using an average of the bonus percentages paid or payable for the two calendar years immediately preceding the termination, or the most recent calendar year immediately preceding the termination if only one calendar year was completed since the effective date of this Agreement. If employment terminates during the course of the calendar year in which this Agreement became effective, then the bonus percentage will be calculated using the “at target” percentage described in section 3, above. If no bonus payment was awarded for the two previous calendar years, then no bonus shall be payable to the Employee;
(iv) payment of the Employee’s annual bonus entitlement during the full Severance Period (prorated for a partial calendar year), such annual bonus entitlement to be paid on the same dates as for other executives but calculated using only the corporate targets applicable to comparable employees and no personal target. For the sake of clarity, if for example the bonus is weighted 60% personal target and 40% corporate target and corporate achievements justify paying out at 50% corporate target, then the bonus percentage payout for such calendar year will amount to 8% of the Employee’s Base Salary further prorated for the Severance Period;
(v) continuation of the Employee’s benefits and car allowance and any other benefit required to be maintained pursuant to the ESA for any minimum period required by the ESA and, to the extent permissible under the terms of the applicable benefits plans, continuation of the Employee’s health and dental benefits for the balance of the Severance Period or until the Employee becomes eligible for similar benefits through new employment, whichever is earlier. For clarity, all other benefits, including cell phone allowance, disability benefits, accidental death & dismemberment, and life insurance, shall cease as of the end of the minimum statutory notice period under the ESA; and
(vi) any and all vested equity-based awards shall be exercisable in accordance with the terms of the applicable Equity Incentive Compensation Plan, subject only to any minimum requirements to the contrary under the ESA.
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In the event that the employment of the Employee is terminated or constructively terminated by the Employer without cause upon or within a 12 month period following a Change of Control, as defined below, the Employee shall be entitled to the payments and benefits provided at paragraphs (b)(ii) to (vi) above, plus a change of control payment equal to 24 months of the value of the Base Salary as of the date of termination.
A “constructive termination” shall include a material change in the Employee’s title, responsibilities, authority or status, a material reduction of the Employee’s compensation, or any other conduct which would constitute a constructive dismissal at common law, in which case the Employee shall be immediately entitled to resign and claim the above entitlements.
A “Change of Control” shall mean a transaction or series of transactions whereby directly or indirectly:
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| (a) | a plan of arrangement, amalgamation, merger or consolidation in which more than 50% of the total combined voting power of the Employer’s voting securities, on a fully diluted basis, are transferred or issued to a person or persons different from those persons holding such securities immediately prior to such transaction; or |
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| (b) | the direct or indirect acquisition by a person or related group of persons acting jointly or in concert of the beneficial ownership of voting securities of the Employer representing more than 50% of the total combined voting power of the Employer’s then outstanding securities, on a fully diluted basis; or |
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| (c) | the exercise of the voting power of all voting or other securities of the Employer so as to cause or result in the election of a majority of the board of directors of Employer who were not recommended by either the management or the current board of directors; or |
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| (d) | the sale, transfer or disposition of all or substantially all of the assets of the Company. |
The Employee may resign from his employment at any time by providing the Employer with a minimum of 60 days advance notice, in writing. The Employee’s notice may be waived by the Employer in whole or in part at its sole discretion, subject only to providing the Employee with payment of the Base Salary and continuation of benefits until the end of the 60-day period of notice required by this Agreement. For clarity, and subject only to any minimum requirements to the contrary under the ESA: (i) all non-vested equity-based awards as of the date of termination shall be automatically extinguished and (ii) the Employee shall not be entitled to any bonus or pro rata bonus payment not already awarded on or before the date of termination. All vested equity-based awards will be subject to the terms of the applicable Equity Incentive Compensation Plan.
For clarity, to the extent the termination rights and entitlements under this section are greater than the Employee’s entitlements pursuant to the ESA, they shall be paid only on the condition the Employee executes a full and final release satisfactory to the Company within thirty (30) days of the Employee’s termination date. In the event the Employee declines to execute such release, the Employee’s maximum entitlement shall be the minimum: (i) notice or pay in lieu thereof, or some combination of the two; (ii) severance pay (if any); (iii) period for the continuation of benefits; (iv) vacation pay; and (v) other entitlements, if any, required by the ESA.
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The Employee understands and agrees that provision of such payment and benefits described above in this Section 7 are fair and reasonable and are in full and final satisfaction and settlement of all amounts owed for notice of termination or pay in lieu of notice, as well as termination and/or severance pay arising under any contract, statute, common law or otherwise.
8. EMPLOYER PROPERTY
On the date of termination, the Employee will return all Employer property and documentation the Employee has received in the course of employment with the Employer, including but not limited to: vehicle (if applicable), smartphone, documents, laptop, computer-generated information, reports, books, studies, data, credit cards, employee identification, access cards/keys and other such materials. The Employee will not be permitted to retain any copies of any documentation containing Employer information, except for personal benefit or pay statements provided during the course of employment. The Employee will confirm the return of all Employer property, including any confidential information, in the Employee’s possession, charge, control or custody by signing a Termination Checklist, a copy of which will be provided to the Employee for his records. All property shall be returned in good working condition, save for normal wear and tear.
9. CONFIDENTIALITY
The Employee acknowledges that, in the course of performing and fulfilling his duties hereunder, he may have access to and be entrusted with Confidential Information, as described further below, the disclosure of which would be highly detrimental to the interests of the Employer. The Employee acknowledges that all right, title and interest in and to the Confidential Information shall remain the exclusive property of the Employer and shall be held in trust by the Employee to the benefit of the Employer. The Employee further acknowledges and agrees that the right to maintain the confidentiality of such Confidential Information constitutes a proprietary right which the Employer is entitled to protect. Accordingly, the Employee covenants and agrees with the Employer that he will not, directly or indirectly, during or after his employment with the Employer, disclose any such Confidential Information to any person, firm or corporation, nor shall he use any Confidential Information, except as required in the normal course of his employment.
The Employee shall not copy, reproduce in any form or store in any retrieval system or database the Confidential Information without the prior written consent of the Employer. If so requested following the cessation of the employment of the Employee for any reason, the Employee shall certify by way of affidavit or statutory declaration that all Confidential Information was returned to the Employer and that the Employee no longer has access to same.
Confidential information includes, but is not limited to, financial information, reports, and forecasts; inventions, improvements and other intellectual property, trade secrets, know-how, designs, processes or formulae, software, market or sales information or plans, supplier lists and supplier contact information, customer lists and customer contact information; and business plans, prospects, strategies and opportunities (such as possible acquisitions or dispositions of businesses or facilities) which have been discussed or considered by the Employer or its affiliates. Confidential information includes information developed by the Employee in the course of the Employee's employment with the Employer, as well as other information to which the Employee may have access in connection with the Employee's employment.
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For greater clarity, the Employee’s obligations of confidentiality shall not apply to Confidential Information that:
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| (a) | was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of this agreement; or |
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| (b) | is disclosed when such disclosure is compelled pursuant to a legal, judicial, or administrative proceeding, or otherwise required by law, except that the Employee shall, prior to disclosure, provide the Employer with notice of a compelled requirement to disclose to allow the Employer to seek protective or other court orders. |
10. NON-COMPETITION
The Employee shall not, without the prior written consent of the Employer, for and during the term of the Employee’s employment with the Employer and for twelve (12) months following the cessation of the Employee’s employment with the Employer (for any reason, including termination for or without cause, constructive termination, resignation or otherwise), either directly or indirectly, individually or in partnership or in conjunction with or through any individual, firm, corporation, association or other entity, whether as principal, agent, shareholder, employee, consultant or in any other capacity whatsoever, within North America, carry on, engage in, or attempt to carry on or attempt to engage in, or be financially interested in any business that competes with the Employer’s Business.
“Business” means the development, sale, or licensing of any inflammatory and immune-related products which are substantially similar to those products (a) developed, in development, sold or licensed by the Employer as at the date of the cessation of employment of the Employee or (b) that have been the subject of active negotiations (that is, having led to the execution of a confidentiality agreement) in the twelve (12) months immediately preceding the cessation of the employment of the Employee or the purposes of licensing or acquisition by the Employer.
Notwithstanding anything to the contrary contained herein, the Employee may, without being deemed to compete, hold an equity share investment in a public company whose shares are listed on a stock exchange or in an over-the-counter market where that share investment does not in the aggregate exceed 10% of the issued equity shares of the company.
11. NON-SOLICITATION
The Employee shall not, for twenty four (24) months following the cessation of the Employee’s employment (for any reason, including termination for or without cause, constructive termination, resignation or otherwise), either directly or indirectly, individually or in partnership or in conjunction with or through any individual, firm, corporation, association or other entity, whether as principal, agent, shareholder, employee, consultant or in any other capacity whatsoever:
(a) canvass or solicit any Customer for any purpose which is competitive with the Business;
(b) canvass or solicit any Prospective Customer for any purpose which is competitive with the Business;
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(c) encourage or influence any Customer to cease doing business with the Company; or
(d) solicit the employment or engagement of or otherwise entice away from the employment or engagement of the Company any individual who is employed or engaged by the Company and who worked with the Employee (regardless of the reporting relationship) during the twenty four (24) month period prior to the cessation of the Employee’s employment, whether or not such individual would commit any breach of his/her contract or terms of employment or engagement by leaving the employ or the engagement of the Company, provided that the Employee will not be restricted from making any general solicitation for employment that is not specifically directed at such employees and that the Employee will not be restricted from hiring any such employee who responds to any such general solicitation.
“Business” has the meaning set out above at Section 10.
“Customer” means any entity who purchased from the Company any product or service supplied, sold, licensed or distributed by the Company; provided that a Customer shall only include any entity who the Employee knew or ought to have known was a Customer during the twenty-four (24) months preceding the date of the cessation of the Employee’s employment.
“Prospective Customer” means (i) any entity solicited by the Employee on behalf of the Company in furtherance of the Business; and (ii) any entity solicited by the Company with the Employee’s knowledge in furtherance of the Business; provided that Prospective Customers shall only include any entity who was a Prospective Customer during the twenty-four (24) months preceding the date of the cessation of the Employee’s employment.
12. EQUITABLE REMEDIES
The Employee acknowledges and agrees that a breach by the Employee of Sections 9 to 11 would cause substantial and irreparable harm to the Employer which could not be adequately compensated for by damages, and, in the event of such a breach (or the reasonable apprehension of such a breach) by the Employee of such provisions, the Employee hereby consents to a preliminary and permanent injunction being issued against him restraining him from any breach or further breach of the said provisions and of an order to account for all profits and benefits arising out of any such breach, but the provisions of this Section 12 shall be in addition to and not in substitution for any other remedy which the Employer may have in respect of such a breach. The prevailing party, if any, as determined by the court, shall be awarded all fees and costs, including without limitation reasonable legal fees.
13. INTELLECTUAL PROPERTY
All results of services performed by the Employee hereunder, including without limitation all inventions, ideas, copyrights, trade secrets or otherwise, shall be owned by and be the sole and exclusive property of the Employer. The Employee hereby transfers and assigns all right, title and interest of every nature and kind whatsoever therein to the Company and agrees to execute and deliver such further documents and instruments as may be necessary to fully and effectually give effect thereto. The Employee hereby irrevocably waives all moral rights in such work.
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14. RESIGNATION UPON TERMINATION
The Employee hereby agrees that, upon the cessation of the Employee’s employment (for any reason, including termination for or without cause, constructive termination, resignation or otherwise), the Employee shall be deemed, upon the request of the Company, to have immediately resigned any position the Employee may have as an officer and/or director of the Company together with any other office, position or directorship which the Employee may hold with any of the Company's subsidiaries, affiliates or divisions or related entities in connection with or arising from the performance of the Employee's duties of employment under this Agreement. In such event, the Employee shall, at the request of the Company, execute any and all documents appropriate to evidence such resignations. The parties agree that the execution of such documents shall not adversely impact the Employee’s right to seek a remedy to any dispute relating to his employment with the Employer or the termination thereof.
15. ASSIGNMENT
This Agreement and any rights or obligations under this Agreement shall not be assignable or transferable by the Employee. The Employer may assign its rights, entitlements and obligations under this Agreement at any time, without the Employee's consent and without advance notice.
16. SEVERABILITY, AMENDMENTS AND WAIVERS
Each section (or part thereof) of this Agreement shall be and remain separate from and independent of and severable from all and any other section (or part thereof) herein except where otherwise indicated by the context of this Agreement. The decision or declaration that one or more of the sections (or part thereof) are null and void shall have no effect on the remaining sections (or part thereof) of this Agreement.
No provision of this Agreement may be amended or waived unless such amendment or waiver is authorized by the Employee (including any authorized officer or committee of the board of directors) and is in writing signed by the Employee and by a duly authorized officer of the Employee. Except as otherwise specifically provided in this Agreement, no waiver by either party hereto of any breach by the other party of any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of a similar or dissimilar breach, condition or provision at the same time or at any prior or subsequent time.
17. NOTICE
Any notice required to be given hereunder shall be deemed to have been properly given if delivered personally, via email or sent by pre-paid registered mail as follows:
a) To the Employee: Last address on file with the Employer
b) To the Employer: 100 Spy Court, Markham, Ontario, L3R 5H6
And if sent by registered mail, shall be deemed to have been received on the 4th business day of uninterrupted postal service following the date of mailing. Either party may change its address for notice at any time, by giving notice to the other party pursuant to the provisions of this Agreement.
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18. INTERPRETATION OF AGREEMENT
The interpretation, construction and performance of this Agreement shall be governed by the laws of the Province of Ontario. This Agreement shall be interpreted with all necessary changes in gender and in number as the context may require and shall enure to the benefit of and be binding upon the respective successors and permitted assigns of the parties hereto.
19. ENTIRE AGREEMENT
This Agreement, together with the Appendices hereto, amends and restates in its entirely the Old Employment Agreement, and collectively constitutes the entire agreement between the parties with respect to the subject matter herein. The Employee has not relied on any representations, inducements or statements, oral or written, which are not contained in this Agreement. However, nothing herein shall serve to release the Company from its obligation to pay any accrued wages or bonus to the Employee as of the date of this Agreement.
20. OPPORTUNITY TO CONSULT LEGAL ADVICE
The Employee states that he has read this Agreement in its entirety, been given an opportunity to consider the Agreement and seek legal counsel and advice, and that he enters into this Agreement voluntarily and intending to be legally bound.
21. EMPLOYMENT STANDARDS
In the event that a minimum standard in the ESA is more favourable to the Employee in any respect than a term or provision provided herein, the provision of the ESA will apply in respect of that term or provision. For clarity, under no circumstance will the Employee receive less than his minimum entitlements under the ESA.
22. LANGUAGE OF AGREEMENT
The parties hereto confirm that it is their express wish that this Agreement, as well as related documents and notices, be drawn up in English. Les parties a la presente convention conferment leur volonte expresse que cette convention, de meme que toute documentation ou avis afferent, soit redigee en anglais.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed effective date first noted above.
| August 4, 2023 | |||
| /s/ Pardeep Nijhawan | |||
| Pardeep Nijhawan | Date |
EDESA BIOTECH INC.
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| August 4, 2023 |
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| By: | /s/ Michael J. Brooks |
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| Authorized Signatory |
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SCHEDULE “A”
RELEASE AGREEMENT
(Attached)
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FORM OF
FULL AND FINAL RELEASE (“RELEASE”)
I, [Name], on behalf of myself and my heirs, executors, assigns, administrators and legal representatives, in consideration of the payments and other benefits provided for in the attached employment agreement, dated August 4, 2023 (the “Employment Agreement”), and other good and valuable consideration, the sufficiency and adequacy of which I hereby acknowledge, release and forever discharge Edesa Biotech, Inc. (hereinafter the “Company” which term includes any related, subsidiary, parent or affiliated companies, and any and all of its and their respective officers, directors, agents and employees and any of its or their respective heirs, executors, administrators, legal representatives, successors and assigns) from all claims, debts, demands, actions, causes of action, damages, costs, expenses and liabilities of any kind or nature whatsoever, existing up to the present time or which may arise in the future, in any way related to or arising out of my hiring by the Company, my employment with the Company and the cessation of that employment (the “Claim”) including, without limitation, any Claim for wages, holiday pay, vacation pay, overtime pay, bonus payments, commissions, right to reinstatement, pension benefits, short-term disability benefits, long term disability benefits, other benefit entitlements, notice of termination or payment in lieu of notice, severance pay, or any other employment benefit whatsoever whether arising pursuant to contract, common law, statute including, without limitation, the Employment Standards Act, 2000, the Ontario Human Rights Code, the Occupational Health and Safety Act, the Pension Benefits Act, the Pay Equity Act and related legislation.
| 1. | I hereby acknowledge that the parties to this Release have discussed or otherwise canvassed any and all human rights or harassment complaints, concerns, or issues, whether or not arising directly out of or in respect to my employment with the Company and the cessation of that employment and that it has been agreed that the said consideration constitutes a full and final settlement of any existing, planned, or possible claims or complaint(s) I may have against the Company under the Ontario Human Rights Code or the Occupational Health and Safety Act. |
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| 1. | I also acknowledge that the said consideration represents payment in full of any and all amounts including, without limitation, wages, overtime pay, vacation pay, severance and pay in lieu of notice, to which I am or may be entitled pursuant to the Employment Standards Act, 2000. |
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| 2. | I agree that should I commence or continue any Claim against the Company or any provider of benefit plans made available to me by or through the Company, in any way connected to my employment or the cessation of my employment, this Release may be raised as a complete bar to such proceedings, and the Company and all of those entitled to the benefit of this Release shall be entitled to raise this Release in support of an order dismissing such proceedings without costs. |
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| 3. | I agree to save harmless and indemnify the Company from and against all claims, charges, taxes or penalties and demands which may be made by governmental authorities against the Company in respect of income tax payable by me in relation to my employment income from the Company and aforesaid consideration. |
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| 4. | I agree to save harmless and indemnify the Company from and against all claims, charges, taxes, penalties or demands which may be made related to the Employment Insurance Act or the Canada Pension Plan, or the Canada Emergency Response Benefit, the Canada Recovery Benefit, the Canada Recovery Caregiver Benefit, or the Canada Recovery Sickness Benefit with respect to any amounts which may, in the future, be found to be payable by me in relation to my employment income from the Company and aforesaid consideration. |
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| 5. | I agree not to make any claim, complaint or take any proceeding, including third party proceedings or cross-claims, against any person or corporation with respect to any matters, including Claims released herein, that have arisen between myself and the Company up to the present time, on which any claim could arise against the Company for contribution or indemnity or other relief. |
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| 6. | I agree not to make any offensive public remarks, whether orally, in writing or via electronic means (i.e., internet based medium) concerning the Company, its employees, directors, officers or customers. |
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| 7. | I have not assigned to any person, firm or corporation any of the actions, causes of action, claims, suits, executions or demands which I am releasing in this Release. |
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| 8. | I understand that the Company does not, by payment and performance as noted above or otherwise, admit that I have any valid Claims against the Company. |
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| 9. | The terms of this Release are intended to be contractual and not a mere recital. |
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| 10. | This Release and the terms referenced herein shall be governed by and construed in accordance with the laws in force in the Province of Ontario and the federal laws of Canada applicable therein. |
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| 11. | I confirm that, in signing this Release, I have not relied on any written or oral representations made by or on behalf of the Company other than what might be contained in the Employment Agreement, and that this Release contains all terms and conditions with respect to my release of liability of the Company without exception or limitation. |
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| 12. | The terms or existence of this settlement and this Release are confidential and I agree not to disclose any such terms to any person save and except as may be required by law or to my immediate family and professional advisors, all of whom shall be advised on the confidential nature of the terms and be required to maintain confidentiality over the terms. |
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| 13. | I understand that if I violate paragraph 7 or paragraph 13 of this Release I may be liable to repay some or all of the settlement amount provided for in the Employment Agreement. |
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| 14. | I acknowledge that: |
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| (a) | I have had an adequate opportunity to read and consider this Release and to obtain legal and other advice prior to executing it; |
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| (b) | I understand the Release and the consequences of signing same; and |
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| (c) | I am signing the Release voluntarily, without coercion and without reliance on any representation, expressed or implied, by the Company. |
IN WITNESS WHEREOF, I, [Name], do execute this Release at the City of
[name of city] on the [day] day of
[month], 2023.
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EXHIBIT 10.4
Amended and Restated Employment Agreement
THIS AMENDED AND RESTATED AGREEMENT is made as of August 4, 2023 (the “Agreement”), and amends and replaces in its entirely the employment agreement between the Company (as defined below) and the Employee (as defined below) made as of June 14, 2019, as amended on March 19, 2021 and April 12, 2022 (the “Old Employment Agreement”);
Between:
EDESA BIOTECH INC., a company incorporated pursuant to the laws of the Province of British Columbia (hereinafter referred to as “the Employer” or “the Company”)
AND
Michael Brooks of the City of Toronto, in the Province of Ontario (hereinafter referred to as “the
Employee”)
WHEREAS the Employer and Employee wish to amend and restate the terms and conditions of the Old Employment Agreement;
AND WHEREAS the Employee confirms that he has the skills and knowledge to perform the duties of the position of President and has not misrepresented his experience or qualifications for the position;
In consideration of the payments, mutual covenants and other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged by the parties), it is agreed by and between the parties as follows:
1. TERM OF EMPLOYMENT
The employment of the Employee commenced on September 1, 2015, and will continue for an indefinite term until terminated in accordance with this Agreement.
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2. DUTIES AND RESPONSIBILITIES
The Employee shall be employed in the position of President for the Company, and subject to
the direction otherwise by the Company, will also act as President and Director to its affiliated entity, Edesa Biotech Research, Inc. (“Edesa Research”), an Ontario corporation. The Employee will be responsible for performing such duties as the Employer or its designee may reasonably assign, including all duties usually and customarily rendered by and required of a President of a publicly traded company, and including such duties as are described in any written job description that may be provided to the Employee and amended from time to time, provided that in no event may such an amendment or duties assigned to the Employee materially diminish the Employee’s level of responsibilities, title, and stature as President of the Employer.
The Employee shall devote his full time and attention to the business and affairs of the Company and Edesa Research and work those hours required to meet his duties and responsibilities hereunder.
During the term of his employment, the Employee will refrain from engaging in any activities in which the Employee’s personal interests conflict with the Employee’s duties, responsibilities, and attention to the affairs of the Company. As such, the Employee will not, directly or indirectly, engage or participate in any other business activities which conflict with the Employee’s duties, responsibilities, and attention to the affairs of the Company without the written consent of the Company.
3. COMPENSATION AND BENEFITS
In consideration of the services to be provided hereunder, the Employee, effective May 13, 2023 and during the term of his employment, shall be paid a gross annual base salary of $335,340 USD (“Base Salary”) payable in equal bi-weekly installments, in arrears, less applicable statutory deductions and withholdings. Salaries are reviewed annually in March on the basis of such factors as, but not limited to, merit, market performance, job grade and potential. However, any increase to the Employee's Base Salary is in the sole discretion of the Employer, as determined by the board of directors of the Company (“Board of Directors”).
The Employee shall be eligible for a target annual bonus of 40% of the Employee’s Base Salary, based on performance in the prior calendar year, subject to achieving corporate and personal targets to be determined by the Employer and the Board of Directors, taking into account input from the Employee regarding his personal targets. The Employee acknowledges that: (i) terms and conditions of the applicable bonus program may change each calendar year at the discretion of the Employer; (ii) there will be no guaranteed level of Bonus in any year.
The Employee will be eligible for equity-based awards under the Company’s Equity Incentive Compensation Plan as determined by the Board of Directors, commensurate with the Employee’s position and any business milestones which may be established by the Employer.
The Employee shall receive an automobile allowance of $2,000 USD per month payable in accordance with the Employer’s practices and subject to applicable deductions.
Subject to the terms of applicable policies and plans, the Employee will be eligible to participate in the Employer's group insured benefits program, as may be in effect from time to time for its employees generally, and executive employees specifically. Benefits, coverages, policies and plans may be amended or terminated by the Employer at any time, without advance notice or other obligation, provided however that in the event of such amendment or termination, the Employer will either make available to the Employee benefits coverage substantially comparable in scope to the preceding coverage, or reimburse the Employee for the cost of obtaining private coverage substantially comparable in scope to the preceding coverage.
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4. EXPENSES
The Employer shall reimburse the Employee for reasonable and documented expenses actually and necessarily incurred by the Employee in the performance of this Agreement, in accordance with the Employer’s policies and procedures.
5. VACATION
The Employer's vacation year is January 1st to December 31st.
During each full calendar year, the Employee will be entitled to six (6) weeks’ vacation, which shall accrue in accordance with the Employer’s vacation policy. Vacation is to be taken at a time acceptable to the Employer acting reasonably having regard to reasonable business requirements.
6. POLICIES AND PROCEDURES
As a term and condition of employment, the Employee agrees to comply with, and be bound by, the Employer's handbook and other employment policies and procedures. From time to time, the Employer's handbook and other policies and procedures may be changed by the Employer, in its sole discretion, without advance notice. It is the sole responsibility of the Employee to review and understand any changes to the Employer's handbook or other policies and procedures.
7. TERMINATION OF EMPLOYMENT
The Employer may terminate the employment of the Employee at any time:
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| (a) | for cause, in which case the employee shall receive payment of any Base Salary and vacation pay earned to the date of termination. Subject only to any minimum requirements to the contrary under the Employment Standards Act (Ontario) (“ESA”), all Base Salary, vacation pay accrual and participation in any other benefits (including group benefits and car allowance) will cease immediately upon the date of termination for cause, and no other bonus or other payments will be payable to the Employee. Furthermore, subject only to any minimum requirements to the contrary under the ESA, all non-vested equity-based awards shall be automatically extinguished. All vested equity-based awards shall be subject to the terms of the applicable Equity Incentive Compensation Plan. |
“Cause” means the existence of just cause for termination of employment at common law as determined by the law of the province of Ontario, including but not limited to fraud, theft, dishonesty, illegality, conflict of interest, gross incompetence or breach of any material obligation under this Agreement.
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| (b) | without cause, in which case the Employee will be entitled to the following if the Employee executes a general release of claims in a form reasonably required by the Company substantially in the form attached in Schedule “A”, within thirty days after Employee’s termination date: |
(i) a lump sum payment equal to the Employee’s then Base Salary for twelve months plus one additional month for every completed year of service since September 1, 2015 (the “Severance Period”, which shall not exceed 24 months), inclusive of, and not in addition to, the Employee’s notice and severance entitlements (if any) pursuant to the ESA;
(ii) a lump sum payment of the annual bonus to which the Employee is entitled for the calendar year immediately preceding the date of termination, if such bonus has not already been paid;
(iii) a lump sum payment equal to the Employee’s annual bonus entitlement, prorated over the Employee’s length of service in the calendar year in which his employment was terminated, such annual bonus entitlement to be calculated using an average of the bonus percentages paid or payable for the two calendar years immediately preceding the termination, or the most recent calendar year immediately preceding the termination if only one calendar year was completed since the effective date of this Agreement. If employment terminates during the course of the calendar year in which this Agreement became effective, then the bonus percentage will be calculated using the “at target” percentage described in section 3, above. If no bonus payment was awarded for the two previous calendar years, then no bonus shall be payable to the Employee;
(iv) payment of the Employee’s annual bonus entitlement during the full Severance Period (prorated for a partial calendar year), such annual bonus entitlement to be paid on the same dates as for other executives but calculated using only the corporate targets applicable to comparable employees and no personal target. For the sake of clarity, if for example the bonus is weighted 60% personal target and 40% corporate target and corporate achievements justify paying out at 50% corporate target, then the bonus percentage payout for such calendar year will amount to 8% of the Employee’s Base Salary further prorated for the Severance Period;
(v) continuation of the Employee’s benefits and car allowance and any other benefit required to be maintained pursuant to the ESA for any minimum period required by the ESA and, to the extent permissible under the terms of the applicable benefits plans, continuation of the Employee’s health and dental benefits for the balance of the Severance Period or until the Employee becomes eligible for similar benefits through new employment, whichever is earlier. For clarity, all other benefits, including cell phone allowance, disability benefits, accidental death & dismemberment, and life insurance, shall cease as of the end of the minimum statutory notice period under the ESA; and
(vi) any and all vested equity-based awards shall be exercisable in accordance with the terms of the applicable Equity Incentive Compensation Plan, subject only to any minimum requirements to the contrary under the ESA.
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In the event that the employment of the Employee is terminated or constructively terminated by the Employer without cause upon or within a 12 month period following a Change of Control, as defined below, the Employee shall be entitled to the payments and benefits provided at paragraphs (b)(ii) to (vi) above, plus a change of control payment equal to 24 months of the value of the Base Salary as of the date of termination.
A “constructive termination” shall include a material change in the Employee’s title, responsibilities, authority or status, a material reduction of the Employee’s compensation, or any other conduct which would constitute a constructive dismissal at common law, in which case the Employee shall be immediately entitled to resign and claim the above entitlements.
A “Change of Control” shall mean a transaction or series of transactions whereby directly or indirectly:
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| (a) | a plan of arrangement, amalgamation, merger or consolidation in which more than 50% of the total combined voting power of the Employer’s voting securities, on a fully diluted basis, are transferred or issued to a person or persons different from those persons holding such securities immediately prior to such transaction; or |
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| (b) | the direct or indirect acquisition by a person or related group of persons acting jointly or in concert of the beneficial ownership of voting securities of the Employer representing more than 50% of the total combined voting power of the Employer’s then outstanding securities, on a fully diluted basis; or |
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| (c) | the exercise of the voting power of all voting or other securities of the Employer so as to cause or result in the election of a majority of the board of directors of Employer who were not recommended by either the management or the current board of directors; or |
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| (d) | the sale, transfer or disposition of all or substantially all of the assets of the Company. |
The Employee may resign from his employment at any time by providing the Employer with a minimum of 60 days advance notice, in writing. The Employee’s notice may be waived by the Employer in whole or in part at its sole discretion, subject only to providing the Employee with payment of the Base Salary and continuation of benefits until the end of the 60-day period of notice required by this Agreement. For clarity, and subject only to any minimum requirements to the contrary under the ESA: (i) all non-vested equity-based awards as of the date of termination shall be automatically extinguished and (ii) the Employee shall not be entitled to any bonus or pro rata bonus payment not already awarded on or before the date of termination. All vested equity-based awards will be subject to the terms of the applicable Equity Incentive Compensation Plan.
For clarity, to the extent the termination rights and entitlements under this section are greater than the Employee’s entitlements pursuant to the ESA, they shall be paid only on the condition the Employee executes a full and final release satisfactory to the Company within thirty (30) days of the Employee’s termination date. In the event the Employee declines to execute such release, the Employee’s maximum entitlement shall be the minimum: (i) notice or pay in lieu thereof, or some combination of the two; (ii) severance pay (if any); (iii) period for the continuation of benefits; (iv) vacation pay; and (v) other entitlements, if any, required by the ESA.
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The Employee understands and agrees that provision of such payment and benefits described above in this Section 7 are fair and reasonable and are in full and final satisfaction and settlement of all amounts owed for notice of termination or pay in lieu of notice, as well as termination and/or severance pay arising under any contract, statute, common law or otherwise.
8. EMPLOYER PROPERTY
On the date of termination, the Employee will return all Employer property and documentation the Employee has received in the course of employment with the Employer, including but not limited to: vehicle (if applicable), smartphone, documents, laptop, computer-generated information, reports, books, studies, data, credit cards, employee identification, access cards/keys and other such materials. The Employee will not be permitted to retain any copies of any documentation containing Employer information, except for personal benefit or pay statements provided during the course of employment. The Employee will confirm the return of all Employer property, including any confidential information, in the Employee’s possession, charge, control or custody by signing a Termination Checklist, a copy of which will be provided to the Employee for his records. All property shall be returned in good working condition, save for normal wear and tear.
9. CONFIDENTIALITY
The Employee acknowledges that, in the course of performing and fulfilling his duties hereunder, he may have access to and be entrusted with Confidential Information, as described further below, the disclosure of which would be highly detrimental to the interests of the Employer. The Employee acknowledges that all right, title and interest in and to the Confidential Information shall remain the exclusive property of the Employer and shall be held in trust by the Employee to the benefit of the Employer. The Employee further acknowledges and agrees that the right to maintain the confidentiality of such Confidential Information constitutes a proprietary right which the Employer is entitled to protect. Accordingly, the Employee covenants and agrees with the Employer that he will not, directly or indirectly, during or after his employment with the Employer, disclose any such Confidential Information to any person, firm or corporation, nor shall he use any Confidential Information, except as required in the normal course of his employment.
The Employee shall not copy, reproduce in any form or store in any retrieval system or database the Confidential Information without the prior written consent of the Employer. If so requested following the cessation of the employment of the Employee for any reason, the Employee shall certify by way of affidavit or statutory declaration that all Confidential Information was returned to the Employer and that the Employee no longer has access to same.
Confidential information includes, but is not limited to, financial information, reports, and forecasts; inventions, improvements and other intellectual property, trade secrets, know-how, designs, processes or formulae, software, market or sales information or plans, supplier lists and supplier contact information, customer lists and customer contact information; and business plans, prospects, strategies and opportunities (such as possible acquisitions or dispositions of businesses or facilities) which have been discussed or considered by the Employer or its affiliates. Confidential information includes information developed by the Employee in the course of the Employee's employment with the Employer, as well as other information to which the Employee may have access in connection with the Employee's employment.
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For greater clarity, the Employee’s obligations of confidentiality shall not apply to Confidential Information that:
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| (a) | was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of this agreement; or |
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| (b) | is disclosed when such disclosure is compelled pursuant to a legal, judicial, or administrative proceeding, or otherwise required by law, except that the Employee shall, prior to disclosure, provide the Employer with notice of a compelled requirement to disclose to allow the Employer to seek protective or other court orders. |
10. NON-COMPETITION
The Employee shall not, without the prior written consent of the Employer, for and during the term of the Employee’s employment with the Employer and for twelve (12) months following the cessation of the Employee’s employment with the Employer (for any reason, including termination for or without cause, constructive termination, resignation or otherwise), either directly or indirectly, individually or in partnership or in conjunction with or through any individual, firm, corporation, association or other entity, whether as principal, agent, shareholder, employee, consultant or in any other capacity whatsoever, within North America, carry on, engage in, or attempt to carry on or attempt to engage in, or be financially interested in any business that competes with the Employer’s Business.
“Business” means the development, sale, or licensing of any inflammatory and immune-related products which are substantially similar to those products (a) developed, in development, sold or licensed by the Employer as at the date of the cessation of employment of the Employee or (b) that have been the subject of active negotiations (that is, having led to the execution of a confidentiality agreement) in the twelve (12) months immediately preceding the cessation of the employment of the Employee or the purposes of licensing or acquisition by the Employer.
Notwithstanding anything to the contrary contained herein, the Employee may, without being deemed to compete, hold an equity share investment in a public company whose shares are listed on a stock exchange or in an over-the-counter market where that share investment does not in the aggregate exceed 10% of the issued equity shares of the company.
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11. NON-SOLICITATION
The Employee shall not, for twenty four (24) months following the cessation of the Employee’s employment (for any reason, including termination for or without cause, constructive termination, resignation or otherwise), either directly or indirectly, individually or in partnership or in conjunction with or through any individual, firm, corporation, association or other entity, whether as principal, agent, shareholder, employee, consultant or in any other capacity whatsoever:
(a) canvass or solicit any Customer for any purpose which is competitive with the Business;
(b) canvass or solicit any Prospective Customer for any purpose which is competitive with the Business;
(c) encourage or influence any Customer to cease doing business with the Company; or
(d) solicit the employment or engagement of or otherwise entice away from the employment or engagement of the Company any individual who is employed or engaged by the Company and who worked with the Employee (regardless of the reporting relationship) during the twenty four (24) month period prior to the cessation of the Employee’s employment, whether or not such individual would commit any breach of his/her contract or terms of employment or engagement by leaving the employ or the engagement of the Company, provided that the Employee will not be restricted from making any general solicitation for employment that is not specifically directed at such employees and that the Employee will not be restricted from hiring any such employee who responds to any such general solicitation.
“Business” has the meaning set out above at Section 10.
“Customer” means any entity who purchased from the Company any product or service supplied, sold, licensed or distributed by the Company; provided that a Customer shall only include any entity who the Employee knew or ought to have known was a Customer during the twenty-four (24) months preceding the date of the cessation of the Employee’s employment.
“Prospective Customer” means (i) any entity solicited by the Employee on behalf of the Company in furtherance of the Business; and (ii) any entity solicited by the Company with the Employee’s knowledge in furtherance of the Business; provided that Prospective Customers shall only include any entity who was a Prospective Customer during the twenty-four (24) months preceding the date of the cessation of the Employee’s employment.
12. EQUITABLE REMEDIES
The Employee acknowledges and agrees that a breach by the Employee of Sections 9 to 11 would cause substantial and irreparable harm to the Employer which could not be adequately compensated for by damages, and, in the event of such a breach (or the reasonable apprehension of such a breach) by the Employee of such provisions, the Employee hereby consents to a preliminary and permanent injunction being issued against him restraining him from any breach or further breach of the said provisions and of an order to account for all profits and benefits arising out of any such breach, but the provisions of this Section 12 shall be in addition to and not in substitution for any other remedy which the Employer may have in respect of such a breach. The prevailing party, if any, as determined by the court, shall be awarded all fees and costs, including without limitation reasonable legal fees.
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13. INTELLECTUAL PROPERTY
All results of services performed by the Employee hereunder, including without limitation all inventions, ideas, copyrights, trade secrets or otherwise, shall be owned by and be the sole and exclusive property of the Employer. The Employee hereby transfers and assigns all right, title and interest of every nature and kind whatsoever therein to the Company and agrees to execute and deliver such further documents and instruments as may be necessary to fully and effectually give effect thereto. The Employee hereby irrevocably waives all moral rights in such work.
14. RESIGNATION UPON TERMINATION
The Employee hereby agrees that, upon the cessation of the Employee’s employment (for any reason, including termination for or without cause, constructive termination, resignation or otherwise), the Employee shall be deemed, upon the request of the Company, to have immediately resigned any position the Employee may have as an officer and/or director of the Company together with any other office, position or directorship which the Employee may hold with any of the Company's subsidiaries, affiliates or divisions or related entities in connection with or arising from the performance of the Employee's duties of employment under this Agreement. In such event, the Employee shall, at the request of the Company, execute any and all documents appropriate to evidence such resignations. The parties agree that the execution of such documents shall not adversely impact the Employee’s right to seek a remedy to any dispute relating to his employment with the Employer or the termination thereof.
15. ASSIGNMENT
This Agreement and any rights or obligations under this Agreement shall not be assignable or transferable by the Employee. The Employer may assign its rights, entitlements and obligations under this Agreement at any time, without the Employee's consent and without advance notice.
16. SEVERABILITY, AMENDMENTS AND WAIVERS
Each section (or part thereof) of this Agreement shall be and remain separate from and independent of and severable from all and any other section (or part thereof) herein except where otherwise indicated by the context of this Agreement. The decision or declaration that one or more of the sections (or part thereof) are null and void shall have no effect on the remaining sections (or part thereof) of this Agreement.
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No provision of this Agreement may be amended or waived unless such amendment or waiver is authorized by the Employee (including any authorized officer or committee of the board of directors) and is in writing signed by the Employee and by a duly authorized officer of the Employee. Except as otherwise specifically provided in this Agreement, no waiver by either party hereto of any breach by the other party of any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of a similar or dissimilar breach, condition or provision at the same time or at any prior or subsequent time.
17. NOTICE
Any notice required to be given hereunder shall be deemed to have been properly given if delivered personally, via email or sent by pre-paid registered mail as follows:
a) To the Employee: Last address on file with the Employer
b) To the Employer: 100 Spy Court, Markham, Ontario, L3R 5H6
And if sent by registered mail, shall be deemed to have been received on the 4th business day of uninterrupted postal service following the date of mailing. Either party may change its address for notice at any time, by giving notice to the other party pursuant to the provisions of this Agreement.
18. INTERPRETATION OF AGREEMENT
The interpretation, construction and performance of this Agreement shall be governed by the laws of the Province of Ontario. This Agreement shall be interpreted with all necessary changes in gender and in number as the context may require and shall enure to the benefit of and be binding upon the respective successors and permitted assigns of the parties hereto.
19. ENTIRE AGREEMENT
This Agreement, together with the Appendices hereto, amends and restates in its entirely the Old Employment Agreement, and collectively constitutes the entire agreement between the parties with respect to the subject matter herein. The Employee has not relied on any representations, inducements or statements, oral or written, which are not contained in this Agreement. However, nothing herein shall serve to release the Company from its obligation to pay any accrued wages or bonus to the Employee as of the date of this Agreement.
20. OPPORTUNITY TO CONSULT LEGAL ADVICE
The Employee states that he has read this Agreement in its entirety, been given an opportunity to consider the Agreement and seek legal counsel and advice, and that he enters into this Agreement voluntarily and intending to be legally bound.
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21. EMPLOYMENT STANDARDS
In the event that a minimum standard in the ESA is more favourable to the Employee in any respect than a term or provision provided herein, the provision of the ESA will apply in respect of that term or provision. For clarity, under no circumstance will the Employee receive less than his minimum entitlements under the ESA.
22. LANGUAGE OF AGREEMENT
The parties hereto confirm that it is their express wish that this Agreement, as well as related documents and notices, be drawn up in English. Les parties a la presente convention conferment leur volonte expresse que cette convention, de meme que toute documentation ou avis afferent, soit redigee en anglais.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed effective date first noted above.
| /s/ Michael J. Brooks |
| August 4, 2023 |
| Michael Brooks |
| Date |
EDESA BIOTECH INC.
| By: | /s/ Pardeep Nijhawan |
| August 4, 2023 |
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| Authorized Signatory |
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SCHEDULE “A”
RELEASE AGREEMENT
(Attached)
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FORM OF
FULL AND FINAL RELEASE (“RELEASE”)
I, [Name], on behalf of myself and my heirs, executors, assigns, administrators and legal representatives, in consideration of the payments and other benefits provided for in the attached employment agreement, dated August 4, 2023 (the “Employment Agreement”), and other good and valuable consideration, the sufficiency and adequacy of which I hereby acknowledge, release and forever discharge Edesa Biotech, Inc. (hereinafter the “Company” which term includes any related, subsidiary, parent or affiliated companies, and any and all of its and their respective officers, directors, agents and employees and any of its or their respective heirs, executors, administrators, legal representatives, successors and assigns) from all claims, debts, demands, actions, causes of action, damages, costs, expenses and liabilities of any kind or nature whatsoever, existing up to the present time or which may arise in the future, in any way related to or arising out of my hiring by the Company, my employment with the Company and the cessation of that employment (the “Claim”) including, without limitation, any Claim for wages, holiday pay, vacation pay, overtime pay, bonus payments, commissions, right to reinstatement, pension benefits, short-term disability benefits, long term disability benefits, other benefit entitlements, notice of termination or payment in lieu of notice, severance pay, or any other employment benefit whatsoever whether arising pursuant to contract, common law, statute including, without limitation, the Employment Standards Act, 2000, the Ontario Human Rights Code, the Occupational Health and Safety Act, the Pension Benefits Act, the Pay Equity Act and related legislation.
| 1. | I hereby acknowledge that the parties to this Release have discussed or otherwise canvassed any and all human rights or harassment complaints, concerns, or issues, whether or not arising directly out of or in respect to my employment with the Company and the cessation of that employment and that it has been agreed that the said consideration constitutes a full and final settlement of any existing, planned, or possible claims or complaint(s) I may have against the Company under the Ontario Human Rights Code or the Occupational Health and Safety Act. |
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| 1. | I also acknowledge that the said consideration represents payment in full of any and all amounts including, without limitation, wages, overtime pay, vacation pay, severance and pay in lieu of notice, to which I am or may be entitled pursuant to the Employment Standards Act, 2000. |
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| 2. | I agree that should I commence or continue any Claim against the Company or any provider of benefit plans made available to me by or through the Company, in any way connected to my employment or the cessation of my employment, this Release may be raised as a complete bar to such proceedings, and the Company and all of those entitled to the benefit of this Release shall be entitled to raise this Release in support of an order dismissing such proceedings without costs. |
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| 3. | I agree to save harmless and indemnify the Company from and against all claims, charges, taxes or penalties and demands which may be made by governmental authorities against the Company in respect of income tax payable by me in relation to my employment income from the Company and aforesaid consideration. |
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| 4. | I agree to save harmless and indemnify the Company from and against all claims, charges, taxes, penalties or demands which may be made related to the Employment Insurance Act or the Canada Pension Plan, or the Canada Emergency Response Benefit, the Canada Recovery Benefit, the Canada Recovery Caregiver Benefit, or the Canada Recovery Sickness Benefit with respect to any amounts which may, in the future, be found to be payable by me in relation to my employment income from the Company and aforesaid consideration. |
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| 5. | I agree not to make any claim, complaint or take any proceeding, including third party proceedings or cross-claims, against any person or corporation with respect to any matters, including Claims released herein, that have arisen between myself and the Company up to the present time, on which any claim could arise against the Company for contribution or indemnity or other relief. |
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| 6. | I agree not to make any offensive public remarks, whether orally, in writing or via electronic means (i.e., internet based medium) concerning the Company, its employees, directors, officers or customers. |
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| 7. | I have not assigned to any person, firm or corporation any of the actions, causes of action, claims, suits, executions or demands which I am releasing in this Release. |
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| 8. | I understand that the Company does not, by payment and performance as noted above or otherwise, admit that I have any valid Claims against the Company. |
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| 9. | The terms of this Release are intended to be contractual and not a mere recital. |
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| 10. | This Release and the terms referenced herein shall be governed by and construed in accordance with the laws in force in the Province of Ontario and the federal laws of Canada applicable therein. |
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| 11. | I confirm that, in signing this Release, I have not relied on any written or oral representations made by or on behalf of the Company other than what might be contained in the Employment Agreement, and that this Release contains all terms and conditions with respect to my release of liability of the Company without exception or limitation. |
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| 12. | The terms or existence of this settlement and this Release are confidential and I agree not to disclose any such terms to any person save and except as may be required by law or to my immediate family and professional advisors, all of whom shall be advised on the confidential nature of the terms and be required to maintain confidentiality over the terms. |
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| 13. | I understand that if I violate paragraph 7 or paragraph 13 of this Release I may be liable to repay some or all of the settlement amount provided for in the Employment Agreement. |
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| 14. | I acknowledge that: |
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| (a) | I have had an adequate opportunity to read and consider this Release and to obtain legal and other advice prior to executing it; |
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| (b) | I understand the Release and the consequences of signing same; and |
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| (c) | I am signing the Release voluntarily, without coercion and without reliance on any representation, expressed or implied, by the Company. |
IN WITNESS WHEREOF, I, [Name], do execute this Release at the City of
[name of city] on the [day] day of
[month], 2023.
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| In the presence of | ) |
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| Witness | ) | [Name] |
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| Print Name Below | ) |
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