|
As
filed with the Securities and Exchange Commission on August 30,
2019.
|
Registration No.
333-
|
UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington,
D.C. 20549
___________________
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
___________________
EDESA BIOTECH, INC.
(Exact name of registrant as specified in its charter)
___________________
|
British Columbia, Canada
(State of other jurisdiction of
incorporation or organization)
|
N/A
(I.R.S. EmployerIdentification No.)
|
100 Spy Court
Markham, ON L3R 5H6 Canada
(905) 475-1234
(Address,
including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
____________________
Pardeep Nijhawan
Chief Executive Officer
Edesa Biotech, Inc.
100 Spy Court
Markham, ON L3R 5H6 Canada
(905) 475-1234
(Name, address, including zip code, and telephone number, including
area code of agent for service)
____________________
Copy to:
Jonathan Friedman,
Stubbs Alderton & Markiles, LLP
15260 Ventura Blvd., 20th Floor, Sherman
Oaks, CA, 91403
(818) 444-4500
____________________
Approximate date of commencement of proposed sale to the
public: FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS
REGISTRATION STATEMENT.
If the
only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box: ☐
If any
of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box: ☒
If this
Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. ☐
If this
Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
☐
If this
Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e)
under the Securities Act, check the following box.
☐
If this
Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following box.
☐
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
☐
|
|
Non-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 7(a)(2)(B) of the Securities Act.
☒
CALCULATION OF REGISTRATION FEE
|
Title of each
class of securities to be registered
|
Proposed maximum
aggregate offering price (1)
|
Amount of
registration fee (2)
|
|
Common Shares, no
par value
|
$(3)
|
N/A
|
|
Preferred Shares,
no par value
|
(3)
|
N/A
|
|
Warrants
|
(3)
|
N/A
|
|
Units
|
(3)
|
N/A
|
|
Total:
|
$50,000,000
|
$6,060
|
(1)
There
are being registered hereunder such indeterminate number of common
shares and preferred shares, and such indeterminate number of
warrants to purchase common shares and preferred shares as may be
sold by the registrant from time to time, which together shall have
an aggregate initial offering price not to exceed $50,000,000. Any
securities registered hereunder may be sold separately or as units
with the other securities registered hereunder. The proposed
maximum offering price per class of security will be determined,
from time to time, by the registrant in connection with the
issuance by the registrant of the securities registered hereunder.
The securities registered hereunder also include such indeterminate
number of common shares and preferred shares as may be issued upon
conversion of or exchange for preferred shares that provide for
conversion or exchange, upon exercise of warrants or pursuant to
the antidilution provisions of any of such securities. In addition,
pursuant to Rule 416 under the Securities Act, the shares being
registered hereunder include such indeterminate number of common
shares and preferred shares as may be issuable with respect to the
shares being registered hereunder as a result of share splits,
share dividends or similar transactions.
(2)
Calculated pursuant
to Rule 457(o) under the Securities Act of 1933, as
amended.
(3)
The proposed
maximum aggregate offering price per class of security will be
determined from time to time by the registrant in connection with
the issuance by the registrant of the securities registered
hereunder and is not specified as to each class of security
pursuant to General Instruction II.D. of Form S-3 under the
Securities Act.
The
Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities
Act of 1933, as amended (the “Securities Act”) or until
this Registration Statement shall become effective on such date as
the Securities and Exchange Commission (the “SEC”),
acting pursuant to said Section 8(a), may
determine.
|
The
information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective.
This prospectus is not an offer to sell these securities and is not
soliciting an offer to buy these securities in any state where the
offer or sale is not permitted.
|
SUBJECT TO COMPLETION, DATED AUGUST 30, 2019
PROSPECTUS
$50,000,000
Common
Shares
Preferred Shares
Warrants
Units
From time to time, Edesa Biotech, Inc.
may offer and sell up to $50,000,000
of any combination of the securities described in this prospectus,
either individually or in combination with other securities. We may
also offer common shares upon conversion of preferred shares, or
common shares or preferred shares upon the exercise of
warrants.
We
will provide the specific terms of these offerings and securities
in one or more supplements to this prospectus. We may also
authorize one or more free writing prospectuses to be provided to
you in connection with these offerings. The prospectus supplement
and any related free writing prospectus may also add, update or
change information contained in this prospectus. You should
carefully read this prospectus, the applicable prospectus
supplement and any related free writing prospectus, as well as any
documents incorporated by reference, before buying any of the
securities being offered.
Our
common shares are traded on The Nasdaq Capital Market under the
symbol “EDSA.” On August 29, 2019, the last reported
sale price of our common shares on The Nasdaq Capital Market
was $3.64. The applicable prospectus supplement will contain
information, where applicable, as to other listings, if any, on The
Nasdaq Capital Market or other securities exchange of the
securities covered by the applicable prospectus
supplement.
Investing in our securities involves risks. You should review
carefully the risks and uncertainties described under the heading
“Risk Factors” contained in the applicable prospectus
supplement and any related free writing prospectus, and under
similar headings in the other documents that are incorporated by
reference into this prospectus.
This
prospectus may not be used to offer or sell any securities unless
accompanied by a prospectus supplement.
The
securities may be sold directly by us to investors, through agents
designated from time to time or to or through underwriters or
dealers, on a continuous or delayed basis. For additional
information on the methods of sale, you should refer to the section
titled “Plan of Distribution” in this prospectus. If
any agents or underwriters are involved in the sale of any
securities with respect to which this prospectus is being
delivered, the names of such agents or underwriters and any
applicable fees, commissions, discounts and over-allotment options
will be set forth in a prospectus supplement. The price to the
public of such securities and the net proceeds we expect to receive
from such sale will also be set forth in a prospectus
supplement.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The
date of this prospectus
is .
TABLE OF CONTENTS
|
|
Page
|
|
|
|
______________
You
should rely only on the information that we have provided or
incorporated by reference in this prospectus, any applicable
prospectus supplement and any related free writing prospectus that
we may authorize to be provided to you. We have not authorized
anyone to provide you with different information. No dealer,
salesperson or other person is authorized to give any information
or to represent anything not contained in this prospectus, any
applicable prospectus supplement or any related free writing
prospectus that we may authorize to be provided to you. You must
not rely on any unauthorized information or representation. This
prospectus is an offer to sell only the securities offered hereby,
but only under circumstances and in jurisdictions where it is
lawful to do so. You should assume that the information in this
prospectus, any applicable prospectus supplement or any related
free writing prospectus is accurate only as of the date on the
front of the document and that any information we have incorporated
by reference is accurate only as of the date of the document
incorporated by reference, regardless of the time of delivery of
this prospectus, any applicable prospectus supplement or any
related free writing prospectus, or any sale of a
security.
2
ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3
that we filed with the Securities and Exchange Commission utilizing
a “shelf” registration process. Under this shelf
registration process, we may offer our common shares and preferred
shares and/or warrants to purchase any of such securities, either
individually or in combination with other securities in one or more
offerings, up to a total dollar amount of $50,000,000. This
prospectus provides you with a general description of the
securities we may offer.
Each
time we offer a type or series of securities under this prospectus,
we will provide a prospectus supplement that will contain more
specific information about the terms of those securities. We may
also authorize one or more free writing prospectuses to be provided
to you that may contain material information relating to these
offerings. We may also add, update or change in the prospectus
supplement (and in any related free writing prospectus that we may
authorize to be provided to you) any of the information contained
in this prospectus or in the documents that we have incorporated by
reference into this prospectus. We urge you to carefully read this
prospectus, any applicable prospectus supplement and any related
free writing prospectus, together with the information incorporated
herein by reference as described under the heading
“Incorporation of Certain Information by Reference,”
before buying any of the securities being offered.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES
UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
The
information appearing in this prospectus, any applicable prospectus
supplement or any related free writing prospectus is accurate only
as of the date on the front of the document and any information we
have incorporated by reference is accurate only as of the date of
the document incorporated by reference, regardless of the time of
delivery of this prospectus, any applicable prospectus supplement
or any related free writing prospectus, or any sale of a security.
Our business, financial condition, results of operations and
prospects may have changed since those dates.
This
prospectus contains summaries of certain provisions contained in
some of the documents described herein, but reference is made to
the actual documents for complete information. All of the summaries
are qualified in their entirety by the actual documents. Copies of
some of the documents referred to herein have been filed, will be
filed or will be incorporated by reference as exhibits to the
registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under the
heading “Where You Can Find More
Information.”
This
prospectus and the information incorporated herein by reference
include trademarks, services marks and trade names owned by us or
other companies. All trademarks, service marks and trade names
included or incorporated by reference into this prospectus, any
applicable prospectus supplement or any related free writing
prospectuses are the property of their respective
owners.
Unless
the context otherwise requires, the terms “we,”
“our,” “us,” “our company,” and
“Edesa” refer to Edesa Biotech, Inc. and its
subsidiaries.
3
EDESA BIOTECH INC.
Edesa
Biotech, Inc. is a biopharmaceutical company focused on acquiring,
developing and commercializing innovative drugs for dermatological
and gastrointestinal indications with clear unmet medical needs.
Our lead product candidate, referred to as “EB01,” is a
novel soluble phospholipase A2 (“sPLA2”) inhibitor
for the topical treatment of chronic allergic contact dermatitis
(“ACD”). EB01 employs a novel mechanism of action and
in two clinical studies has demonstrated statistically significant
improvement of multiple symptoms in contact dermatitis
patients. The company’s IND application for EB01 was accepted
by the U.S. Food and Drug Administration (FDA) in November 2018 and
we are planning to initiate a Phase 2B clinical study evaluating
EB01 in the third calendar quarter of 2019.
We also
intend to expand the utility of our sPLA2 inhibitor
technology, which forms the basis for EB01, across multiple
indications, which could include other inflammatory disorders. For
example, “EB02” is a sPLA2 inhibitor for the
potential treatment of hemorrhoids, and we are planning to evaluate
EB02 in a proof-of-concept study beginning in the second half of
2019. In addition to EB01 and EB02, we have licensed technology to
treat other indications and are in discussions with third parties
to expand our portfolio with assets to treat other serious skin and
gastrointestinal conditions.
Our
business strategy is to develop and commercialize innovative drug
products that address unmet medical needs for large, underserved
markets with limited competition. Key elements of our strategy
include:
·
Establish EB01 as the leading treatment for
chronic ACD. Our primary goal is to obtain regulatory
approval for EB01 and commercialize EB01 for use in the treatment
of ACD. The utility of EB01 in treatment of ACD has been
demonstrated in two proof of concept clinical studies. Based on
these promising clinical trial results, we plan to initiate a Phase
2B clinical study evaluating EB01 for treatment of chronic ACD. We
expect the first patient to be enrolled in the study in the third
calendar quarter of 2019.
·
Selectively targeting additional indications
within the areas of dermatology and gastroenterology. In
addition to our ACD program, we plan to efficiently generate
proof-of-concept data for other programs where the inhibition of
sPLA2 may have a therapeutic benefit. For example, EB02, a
therapeutic expansion of EB01, is indicated for hemorrhoids, and we
are currently planning to evaluate EB02 in a proof-of-concept study
beginning in the second half of 2019. We believe there are other
indications where the inhibition of sPLA2 activity may result in
clinical benefit to patients.
·
In-license promising product
candidates. We are applying our cost-effective development
approach to advance and expand our pipeline. The company’s
current product candidates are in-licensed from academic
institutions or other pharmaceutical companies, and we plan to
continue to evaluate and in-license assets and technology that can
drive long-term growth potential. Edesa does not currently intend
to invest significant capital in basic research, which can be
expensive and time-consuming.
·
Capture the full commercial potential of our
product candidates. If our product candidates are
successfully developed and approved, we may build commercial
infrastructure capable of directly marketing the products in North
America and potentially other major geographies of strategic
interest. We also plans to evaluate strategic licensing
arrangements with pharmaceutical companies for the
commercialization of our drugs, where applicable, such as in
territories where a partner may contribute additional resources,
infrastructure and expertise.
4
We were
incorporated in Canada in 2007 and we operate through our
wholly-owned subsidiaries, Edesa Biotech Research, Inc., an Ontario
corporation incorporated in 2015, formerly known as Edesa Biotech
Inc., which we acquired on
June 7, 2019, and Stellar Biotechnologies, Inc., a California
corporation organized September 9, 1999 and acquired on April 12,
2010. Our common shares are traded on The Nasdaq Capital Market
under the symbol “EDSA”. Our executive offices are
located at 100 Spy Court, Markham, Ontario L3R 5H6 Canada and our
telephone number at this location is (905) 475-1234. Our website
address is www.edesabiotech.com. The information contained on, or
that can be accessed through, our website is not a part of this
prospectus. Our trademarks and trade names include, but may not be
limited to, “Edesa Biotech,” and the Edesa
logo.
RISK FACTORS
Investing in our
securities involves a high degree of risk. Before deciding whether
to invest in our securities, you should consider carefully the
risks and uncertainties described under the heading “Risk
Factors” contained in the applicable prospectus supplement
and any related free writing prospectus, and discussed under the
section titled “Risk Factors” contained in our most
recent Annual Report on Form 10-K and in our most recent Quarterly
Report on Form 10-Q, as well as any amendments thereto reflected in
subsequent filings with the SEC, which are incorporated by
reference into this prospectus in their entirety, together with
other information in this prospectus, the documents incorporated by
reference, including our Definitive
Proxy Statement on Schedule 14A filed with the SEC on April 18,
2019, and any free writing prospectus that we may authorize
for use in connection with a specific offering. The risks described
in these documents are not the only ones we face, but those that we
consider to be material. There may be other unknown or
unpredictable economic, business, competitive, regulatory or other
factors that could have material adverse effects on our future
results. Past financial performance may not be a reliable indicator
of future performance, and historical trends should not be used to
anticipate results or trends in future periods. If any of these
risks actually occurs, our business, financial condition, results
of operations or cash flow could be seriously harmed. This could
cause the trading price of our securities to decline, resulting in
a loss of all or part of your investment. Please also read
carefully the section below titled “Forward-Looking
Statements.”
FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference contain
forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933, or Securities Act, and
Section 21E of the Securities Exchange Act of 1934, or
Exchange Act. These statements involve known and unknown risks,
uncertainties and other important factors that may cause our actual
results, performance or achievements to be materially different
from any future results, performances or achievements expressed or
implied by the forward looking statements. These forward looking
statements include, but are not limited to, those concerning the
following:
●
the scope, number,
progress, duration, cost, results and timing of clinical trials and
nonclinical studies of our current or future product
candidates;
●
our ability to
raise sufficient funds to support the development and potential
commercialization of our product candidates;
●
the outcomes and
timing of regulatory reviews, approvals or other
actions;
●
our ability to
obtain marketing approval for our product candidates and otherwise
execute our business plan;
5
●
our ability to
establish and maintain licensing, collaboration or similar
arrangements on favorable terms and whether and to what extent we
retain development or commercialization responsibilities under any
new licensing, collaboration or similar arrangement;
●
the success of any
other business, product or technology that we acquire or in which
we invest;
●
our ability to
maintain, expand and defend the scope of our intellectual property
portfolio;
●
our ability to
manufacture any approved products on commercially reasonable
terms;
●
our ability to
establish a sales and marketing organization or suitable
third-party alternatives for any approved product;
●
the number and
characteristics of product candidates and programs that we
pursue;
●
our business
strategy;
●
the attraction and
retention of qualified employees and personnel;
●
future acquisitions
or investments in complementary companies or technologies;
and
●
our ability to
comply with evolving legal standards and regulations pertaining to
our industry.
In
some cases, you can identify forward-looking statements by terms
such as “anticipates,” “believes”,
“could”, “estimates”,
“expects”, “intends”, “may”,
“plans”, “potential”,
“predicts”, “projects”,
“should”, “will”, “would” as
well as similar expressions. Forward-looking statements reflect our
current views with respect to future events, are based on
assumptions and are subject to risks, uncertainties and other
important factors. We discuss many of these risks, uncertainties
and other important factors in greater detail under the heading
“Risk Factors” contained in the applicable prospectus
supplement and any related free writing prospectus, and in our most
recent annual report on Form 10-K and in our most recent
quarterly report on Form 10-Q, as well as any amendments
thereto reflected in subsequent filings with the SEC. Given these
risks, uncertainties and other important factors, you should not
place undue reliance on these forward-looking statements. Also,
these forward-looking statements represent our estimates and
assumptions only as of the date such forward-looking statements are
made. Except as required by law, we assume no obligation to update
any forward-looking statements publicly, or to reflect facts and
circumstances after the date of this prospectus. Before deciding to
purchase our securities, you should carefully read both this
prospectus, the applicable prospectus supplement and any related
free writing prospectus, together with the information incorporated
herein by reference as described under the heading
“Incorporation of Certain Information by Reference,”
completely and with the understanding that our actual future
results may be materially different from what we
expect.
THE SECURITIES WE MAY OFFER
We
may offer our common shares and preferred shares and/or warrants to
purchase any of such securities, either individually or in
combination with other securities, with a total value of up to
$50,000,000 from time to time under this prospectus, together with
the applicable prospectus supplement and any related free writing
prospectus, at prices and on terms to be determined by market
conditions at the time of any offering. We may also offer common
shares and/or preferred shares upon the exercise of warrants. This
prospectus provides you with a general description of the
securities we may offer. Each time we offer a type or series of
securities under this prospectus, we will provide a prospectus
supplement that will describe the specific amounts, prices and
other important terms of the securities, including, to the extent
applicable:
6
●
designation
or classification;
●
aggregate
offering price;
●
rates
and times of payment of dividends, if any;
●
redemption,
conversion, exercise, exchange or sinking fund terms, if
any;
●
ranking;
●
restrictive
covenants, if any;
●
voting
or other rights, if any;
●
conversion
prices, if any; and
●
important
Canadian and/or United States federal income tax
considerations.
The
prospectus supplement and any related free writing prospectus that
we may authorize to be provided to you may also add, update or
change information contained in this prospectus or in documents we
have incorporated by reference. However, no prospectus supplement
or free writing prospectus will offer a security that is not
registered and described in this prospectus at the time of the
effectiveness of the registration statement of which this
prospectus is a part.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES
UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
We
may sell the securities directly to investors or to or through
agents, underwriters or dealers. We, and our agents or
underwriters, reserve the right to accept or reject all or part of
any proposed purchase of securities. If we do offer securities to
or through agents or underwriters, we will include in the
applicable prospectus supplement:
●
the
names of those agents or underwriters;
●
applicable
fees, discounts and commissions to be paid to them;
●
details
regarding over-allotment options, if any; and
●
the
net proceeds to us.
Common
Shares. We may issue our common
shares from time to time. The holders of our common shares are
entitled to one vote for each share held of record on all matters
submitted to a vote of shareholders. Subject to preferences that
may be applicable to any of our outstanding preferred shares, the
holders of our common shares are entitled to receive ratably such
dividends as may be declared by our board of directors out of
legally available funds. Upon our liquidation, dissolution or
winding up, holders of our common shares are entitled to share
ratably in all assets legally available for distribution to
shareholders remaining after payment of liabilities and the
liquidation preferences of any outstanding preferred shares.
Holders of common shares have no preemptive rights and no right to
convert their common shares into any other securities. There are no
redemption or sinking fund provisions applicable to our common
shares. When we issue common shares under this prospectus, the
shares will be fully paid and non-assessable. The rights,
preferences and privileges of the holders of common shares are
subject to, and may be adversely affected by, the rights of the
holders of any series of preferred shares which we may designate in
the future. In this prospectus, we have summarized certain general
features of the common shares under “Description of Capital
Stock—Common Shares.” We urge you, however, to read the
applicable prospectus supplement (and any related free writing
prospectus that we may authorize to be provided to you) related to
any common shares being offered.
7
Preferred
Shares. We may issue preferred
shares from time to time, in one or more series. The board of
directors has the authority to approve the issuance of any number
of preferred shares in one or more series at any time and from time
to time, to determine the number of shares constituting any series,
and to determine any voting powers, conversion rights, dividend
rights, and other designations, preferences, limitations,
restrictions and rights relating to such shares without any further
prior approval of the shareholders. Convertible preferred shares
can be convertible into our common shares or exchangeable for our
other securities. Conversion may be mandatory or at a
shareholder’s option and would be at prescribed conversion
rates. Upon any such issuance, the designations, preferences,
limitations, restrictions and rights of any series of preferred
shares designated by the board of directors will be set forth in an
alteration to the Articles and a further Notice of Alteration to
the Notice of Articles of the Company will be filed in accordance
with British Columbia law.
If
we sell any series of preferred shares under this prospectus, we
will file as an exhibit to the registration statement of which this
prospectus is a part, or will incorporate by reference from reports
that we file with the SEC, the alteration to the Articles and a
Notice of Alteration to the Notice of Articles of the Company filed
in accordance with British Columbia law which shall set forth the
designations, preferences, limitations, restrictions and rights of
any series of preferred shares designated by the board of
directors.
In
this prospectus, we have summarized certain general features of the
preferred shares under “Description of Capital
Stock—Preferred Shares.” We urge you, however, to read
the applicable prospectus supplement (and any free writing
prospectus that we may authorize to be provided to you) related to
the series of preferred shares being offered which will contain the
terms of the applicable series of preferred shares.
Warrants. We may issue warrants for the purchase of common
shares and/or preferred shares in one or more series. We may issue
warrants independently or in combination with common shares and/or
preferred shares. In this prospectus, we have summarized certain
general features of the warrants under “Description of
Warrants.” We urge you, however, to read the applicable
prospectus supplement (and any related free writing prospectus that
we may authorize to be provided to you) related to the particular
series of warrants being offered, as well as the form of warrant
and/or the warrant agreement and warrant certificate, as
applicable, that contain the terms of the warrants. We will file as
exhibits to the registration statement of which this prospectus is
a part, or will incorporate by reference from reports that we file
with the SEC, the form of warrant and/or the warrant agreement and
warrant certificate, as applicable, that contain the terms of the
particular series of warrants we are offering, and any supplemental
agreements, before the issuance of such
warrants.
Warrants
may be issued under a warrant agreement that we enter into with a
warrant agent. We will indicate the name and address of the warrant
agent, if any, in the applicable prospectus supplement relating to
a particular series of warrants.
Units. We may issue units consisting of common shares,
preferred shares and/or warrants to purchase any of such securities
in one or more series. In this prospectus, we have summarized
certain general features of the units under “Description of
Units.” We urge you, however, to read the prospectus
supplements and any free writing prospectus that we may authorize
to be provided to you related to the series of units being offered,
as well as the unit agreements that contain the terms of the units.
We will file as exhibits to the registration statement of which
this prospectus is a part, or will incorporate by reference from a
current report on Form 8-K that we file with the SEC, the form of
unit agreement and any supplemental agreements that describe the
terms of the series of units we are offering before the issuance of
such units.
8
USE OF PROCEEDS
Unless
otherwise provided in the applicable prospectus supplement or in
any related free writing prospectus that we may authorize to be
provided to you, we intend to use the net proceeds from the sale of
the securities offered hereby for general corporate purposes,
including capital expenditures, research and development, and
working capital. We may use a portion of our net proceeds to
in-license, acquire or invest in complementary businesses,
technologies, products or assets. However, we have no current
commitments or obligations to do so. We may set forth additional
information on the use of proceeds from the sale or the securities
we offer under this prospectus in a prospectus supplement relating
to the specific offering or in any related free writing prospectus
that we may authorize to be provided to you. We cannot currently
allocate specific percentages of the net proceeds that we may use
for the purposes specified above. As a result, our management will
have broad discretion in the allocation of the net proceeds.
Pending the application of the net proceeds, we intend to invest
the net proceeds in short- and intermediate-term, interest-bearing
obligations, investment-grade instruments, certificates of deposit
or direct or guaranteed obligations of the U.S.
government.
DESCRIPTION OF CAPITAL
STOCK
We are authorized to issue an unlimited number of
common shares and preferred shares, no par value.
As of August 29, 2019, there were
7,504,468 common shares outstanding and no preferred shares
outstanding.
The following summary description of our capital
shares is based on the provisions of our Notice of Articles and
Articles. This information is qualified entirely by reference to
the applicable provisions of our Articles and the British
Columbia Business Corporations
Act. For information on how to
obtain copies of our Notice of Articles and Articles, which are
exhibits to the registration statement of which this prospectus is
a part, see “Where You Can Find More
Information.”
Common Shares
The
holders of our common shares are entitled to one vote for each
share held of record on all matters submitted to a vote of the
shareholders. Our shareholders do not have cumulative voting rights
in the election of directors. Subject to preferences that may be
applicable to any outstanding preferred shares, the holders of
common shares are entitled to receive ratably only those dividends
as may be declared by our board of directors out of legally
available funds. Upon our liquidation, dissolution or winding up,
holders of our common shares are entitled to share ratably in all
assets remaining after payment of liabilities and the liquidation
preferences of any outstanding preferred shares. Holders of common
shares have no preemptive or other subscription or conversion
rights. There are no redemption or sinking fund provisions
applicable to our common shares. Common shares outstanding, and to
be issued, are, and will be, fully paid and non-assessable.
Additional shares of authorized common shares may be issued, as
authorized by our board of directors from time to time, without
shareholder approval, except as may be required by applicable stock
exchange requirements.
Preferred Shares
Pursuant to our Notice of Articles and Articles,
and the provisions of the British Columbia Business Corporations
Act, our board of directors has the
authority, without further action by the shareholders (unless such
shareholder action is required by applicable law or the rules of
The Nasdaq Stock Market), to designate and issue an unlimited
number of preferred shares in one of more series, to establish from
time to time the number of shares to be included in each such
series, to fix the designations, powers, preferences and rights of
the shares of each wholly unissued series, and any qualifications,
limitations or restrictions thereon, and to increase or decrease
the number of shares of any such series, but not below the number
of shares of such series then outstanding. Preferred shares, if
issued, will be fully paid and non-assessable.
9
The
board of directors’ authority to determine the terms of any
such preferred shares include, without limitation: (i) the
designation of each series and the number of preferred shares that
will constitute each such series; (ii) the dividend rate or amount,
if any, for each series; (iii) the price at which, and the terms
and conditions on which, the preferred shares of each series may be
redeemed, if such shares are redeemable; (iv) the terms and
conditions, if any, upon which preferred shares of such series may
be converted into shares of other classes or series of shares of
the Company, or other securities; and (v) the maturity date, if
any, for each such series; but no such special rights or
restriction shall contravene any other provision of Part 26 of the
Articles of the Company.
We
will file as an exhibit to the registration statement of which this
prospectus is a part, or will incorporate by reference from reports
that we file with the SEC, a Notice of Alteration to the Notice of
Articles of the Company, which will be filed in accordance with
British Columbia law and which shall describe the designations,
preferences, limitations, restrictions and rights of the series of
preferred shares that we are offering before the issuance of that
series of preferred shares. This description will
include:
●
the
title and stated value;
●
the
number of shares we are offering;
●
the
liquidation preference per share;
●
the
purchase price;
●
the
rate and amount of dividends (whether cumulative, non-cumulative or
partially cumulative), the dates and places of payment
thereof;
●
the
consideration for, and the terms and conditions of, any purchase
for cancellation or redemption thereof (including redemption after
a fixed term or at a premium);
●
the
conversion or exchange rights;
●
the
terms and conditions of any share purchase plan or sinking
fund;
●
the
restrictions respecting payment of dividends on, or the repayment
of capital in respect of, any other share of the
Company;
●
the
voting rights and restrictions, if any;
●
any
listing of the preferred shares on any securities exchange or
market;
●
whether
the preferred shares will be convertible into our common shares,
and, if applicable, the conversion price, or how it will be
calculated, and the conversion period;
●
preemptive
rights, if any;
●
restrictions
on transfer, sale or other assignment, if any;
●
whether
interests in the preferred shares will be represented by depositary
shares;
●
a
discussion of any material Canadian or United States federal income
tax considerations applicable to the preferred shares;
●
the
relative ranking and preferences of the preferred shares as to
dividend rights and rights if we liquidate, dissolve or wind up our
affairs;
●
any
limitations on the issuance of any class or series of preferred
shares ranking senior to or on a parity with the series of
preferred shares as to dividend rights and rights if we liquidate,
dissolve or wind up our affairs; and
●
any
other specific terms, preferences, rights or limitations of, or
restrictions on, the preferred shares.
10
The issuance of preferred shares may or may
not have a dilutive effect on the voting rights of shareholders
owning common shares, depending on the rights and preferences set
by the board of directors. Preferred shares may be issued quickly
with terms designed to delay or prevent a change in control of our
company or make removal of management more difficult. However,
except for such rights relating to the election of directors on a
default in payment of dividends as may be attached to any series of
the preferred shares by the board of directors or in connection
with convertible preferred shares, the holders of preferred shares
shall not be entitled, as such, to receive notice of, or to attend
or vote at, any general meeting of shareholders of the Company.
Section 61 of the British Columbia Business
Corporations Act provides that
the special rights attached to preferred shares may not be
prejudiced or interfered with unless the shareholders holding such
class of shares consent to such matter by a special resolution of
such holders of preferred shares. Additionally, the issuance of
preferred shares may have the effect of decreasing the market price
of our common shares.
CERTAIN
PROVISIONS OF OUR CHARTER DOCUMENTS AND BRITISH COLUMBIA
LAW
Anti-takeover Provisions of our Articles of
Incorporation
In
addition to the board of directors’ ability to issue
preferred shares, our Articles, as amended, contain other
provisions that are intended to enhance the likelihood of
continuity and stability in the composition of our board of
directors and which may have the effect of delaying, deferring or
preventing a future takeover or change in control of our Company
unless such takeover or change in control is approved by our board
of directors. These provisions include advance notice procedures
for shareholder proposals and a supermajority vote requirement for
business combinations.
Advance Notice Procedures for Shareholder Proposals
Effective October
31, 2013, our board of directors adopted an advance notice policy
(the “Advance Notice Policy”) with immediate effect for
the purpose of providing our shareholders, directors and management
with a clear framework for nominating our directors in connection
with any annual or special meeting of shareholders. The Advance
Notice Policy was approved by the shareholders at our annual
meeting on February 13, 2014.
Purpose of the Advance Notice Policy.
Our directors are committed to: (i) facilitating an orderly and
efficient annual general or, where the need arises, special
meeting, process; (ii) ensuring that all shareholders receive
adequate notice of the director nominations and sufficient
information with respect to all nominees; and (iii) allowing
shareholders to register an informed vote having been afforded
reasonable time for appropriate deliberation. The purpose of the
Advance Notice Policy is to provide our shareholders, directors and
management with a clear framework for nominating directors. The
Advance Notice Policy fixes a deadline by which holders of record
of our common shares must submit director nominations to the
Company prior to any annual or special meeting of shareholders and
sets forth the information that a shareholder must include in the
notice to the Company for the notice to be in proper written form
in order for any director nominee to be eligible for election at
any annual or special meeting of shareholders.
Terms of the Advance Notice Policy. The
Advance Notice Policy provides that advance notice to the Company
must be made in circumstances where nominations of persons for
election to our board of directors are made by shareholders of the
Company other than pursuant to: (i) a "proposal" made in accordance
with Division 7 of Part 5 of the British Columbia Business
Corporations Act, or the Act; or (ii) a requisition of the
shareholders made in accordance with section 167 of the Act. Among
other things, the Advance Notice Policy fixes a deadline by which
holders of record of our common shares must submit director
nominations to the secretary of the Company prior to any annual or
special meeting of shareholders and sets forth the specific
information that a shareholder must include in the written notice
to the secretary of the Company for an effective nomination to
occur. No person will be eligible for election as a director of the
Company unless nominated in accordance with the provisions of the
Advance Notice Policy.
11
In the
case of an annual meeting of shareholders, notice to the Company
must be made not less than 30 nor more than 65 days prior to the
date of the annual meeting; provided, however, that in the event
that the annual meeting is to be held on a date that is less than
50 days after the date on which the first public announcement of
the date of the annual meeting was made, notice may be made not
later than the close of business on the 10th day following such
public announcement.
In the
case of a special meeting of shareholders (which is not also an
annual meeting), notice to the Company must be made not later than
the close of business on the 15th day following the day on which
the first public announcement of the date of the special meeting
was made.
Our
board of directors may, in its sole discretion, waive any
requirement of the Advance Notice Policy.
Provisions of British Columbia Law Governing Business
Combinations
All
provinces of Canada have adopted National Instrument 62-104
entitled “Take-Over Bids and
Issuer Bids” and related forms to harmonize and
consolidate take-over bid and issuer bid regimes nationally
(“NI 62-104”). The Canadian Securities Administrators,
or CSA, have also issued National Policy 62-203 entitled
“Take-Over Bids and Issuer
Bids” (the “National Policy”) which
contains regulatory guidance on the interpretation and application
of NI 62-104 and on the conduct of parties involved in a bid. The
National Policy and NI 62-104 are collectively referred to as the
“Bid Regime.” The National Policy does not have the
force of law, but is an indication by the CSA of what the
intentions and desires of the regulators are in the areas covered
by their policies. Unlike some regimes where the take-over bid
rules are primarily policy-driven, in Canada the regulatory
framework for take-over bids is primarily rules-based, which rules
are supported by policy.
A
“take-over bid” or “bid” is an offer to
acquire outstanding voting or equity securities of a class made to
any person who is in one of the provinces of Canada or to any
securityholder of an offeree issuer whose last address as shown on
the books of a target is in such province, where the securities
subject to the offer to acquire, together with the securities
“beneficially owned” by the offeror, constitute in the
aggregate 20% or more of the outstanding securities of that class
of securities at the date of the offer to acquire. For the purposes
of the Bid Regime, a security is deemed to be “beneficially
owned” by an offeror as of a specific date if the offeror is
the beneficial owner of a security convertible into the security
within 60 days following that date, or has a right or obligation
permitting or requiring the offeror, whether or not on conditions,
to acquire beneficial ownership of the security within 60 days by a
single transaction or a series of linked transactions. Offerors are
also subject to early warning requirements, where an offeror who
acquires “beneficial ownership of”, or control or
direction over, voting or equity securities of any class of a
reporting issuer or securities convertible into, voting or equity
securities of any class of a target that, together with the
offeror’s securities, would constitute 10% or more of the
outstanding securities of that class must promptly publicly issue
and file a news release containing certain prescribed information,
and, within two business days, file an early warning report
containing substantially the same information as is contained in
the news release.
12
In
addition, where an offeror is required to file an early warning
report or a further report as described and the offeror acquires or
disposes of beneficial ownership of, or the power to exercise
control or direction over, an additional 2% or more of the
outstanding securities of the class, or disposes of beneficial
ownership of outstanding securities of the class below 10%, the
offeror must issue an additional press release and file a new early
warning report. Any material change in a previously filed early
warning report also triggers the issuance and filing of a new press
release and early warning report. During the period commencing on
the occurrence of an event in respect of which an early warning
report is required and terminating on the expiry of one business
day from the date that the early warning report is filed, the
offeror may not acquire or offer to acquire beneficial ownership of
any securities of the class in respect of which the early warning
report was required to be filed or any securities convertible into
securities of that class. This requirement does not apply to an
offeror that has beneficial ownership of, or control or direction
over, securities that comprise 20% of more of the outstanding
securities of the class.
Related
party transactions, issuer bids and insider bids are subject to
additional regulation that may differ depending on the particular
jurisdiction of Canada in which it occurs.
Transfer Agent and Registrar
The
transfer agent and registrar for our common shares is Computershare
Investor Services Inc. located at 100 University Avenue, 8th Floor,
Toronto, Ontario M5J 2Y1, and its telephone number is
1-800-564-6253. The transfer agent for any series of preferred
shares that we may offer under this prospectus will be named and
described in the prospectus supplement for that
series.
Listing on The Nasdaq Capital Market
Our
common shares are listed on The Nasdaq Capital Market under the
symbol “EDSA.”
DESCRIPTION OF WARRANTS
The
following description, together with the additional information we
may include in any applicable prospectus supplement and free
writing prospectus, summarizes the material terms and provisions of
the warrants that we may offer under this prospectus, which may
consist of warrants to purchase common shares or preferred shares
and may be issued in one or more series. Warrants may be offered
independently or in combination with common shares and/or preferred
shares offered by any prospectus supplement. While the terms we
have summarized below will apply generally to any warrants that we
may offer under this prospectus, we will describe the particular
terms of any series of warrants in more detail in the applicable
prospectus supplement. The following description of warrants will
apply to the warrants offered by this prospectus unless we provide
otherwise in the applicable prospectus supplement. The applicable
prospectus supplement for a particular series of warrants may
specify different or additional terms.
We
will file as exhibits to the registration statement of which this
prospectus is a part, or will incorporate by reference from reports
that we file with the SEC, the form of warrant and/or the warrant
agreement and warrant certificate, as applicable, that contain the
terms of the particular series of warrants we are offering, and any
supplemental agreements, before the issuance of such warrants. The
following summaries of material terms and provisions of the
warrants are subject to, and qualified in their entirety by
reference to, all the provisions of the form of warrant and/or the
warrant agreement and warrant certificate, as applicable, and any
supplemental agreements applicable to a particular series of
warrants that we may offer under this prospectus. We urge you to
read the applicable prospectus supplement related to the particular
series of warrants that we may offer under this prospectus, as well
as any related free writing prospectus, and the complete form of
warrant and/or the warrant agreement and warrant certificate, as
applicable, and any supplemental agreements, that contain the terms
of the warrants.
General
We
will describe in the applicable prospectus supplement the terms of
the series of warrants being offered, including:
●
the
offering price and aggregate number of warrants
offered;
●
the
currency for which the warrants may be purchased;
13
●
if
applicable, the designation and terms of the securities with which
the warrants are issued and the number of warrants issued with each
such security or each principal amount of such
security;
●
in
the case of warrants to purchase common shares or preferred shares,
the number of common shares or preferred shares, as the case may
be, purchasable upon the exercise of one warrant and the price at
which these shares may be purchased upon such
exercise;
●
the
effect of any merger, consolidation, sale or other disposition of
our business on the warrant agreements and the
warrants;
●
the
terms of any rights to redeem or call the warrants;
●
any
provisions for changes to or adjustments in the exercise price or
number of securities issuable upon exercise of the
warrants;
●
the
dates on which the right to exercise the warrants will commence and
expire;
●
the
manner in which the warrant agreements and warrants may be
modified;
●
a
discussion of material or special Canadian and U.S. federal income
tax considerations, if any, of holding or exercising the
warrants;
●
the
terms of the securities issuable upon exercise of the warrants;
and
●
any
other specific terms, preferences, rights or limitations of or
restrictions on the warrants.
Before
exercising their warrants, holders of warrants will not have any of
the rights of holders of the securities purchasable upon such
exercise, including:
●
in
the case of warrants to purchase common shares or preferred shares,
the right to receive dividends, if any, or payments upon our
liquidation, dissolution or winding up or to exercise voting
rights, if any.
Exercise of Warrants
Each
warrant will entitle the holder to purchase the securities that we
specify in the applicable prospectus supplement at the exercise
price that we describe in the applicable prospectus supplement. The
warrants may be exercised as set forth in the prospectus supplement
relating to the warrants offered. Unless we otherwise specify in
the applicable prospectus supplement, warrants may be exercised at
any time up to the close of business on the expiration date set
forth in the prospectus supplement relating to the warrants offered
thereby. After the close of business on the expiration date,
unexercised warrants will become void.
Upon
receipt of payment and the warrant or warrant certificate, as
applicable, properly completed and duly executed at the corporate
trust office of the warrant agent, if any, or any other office,
including ours, indicated in the prospectus supplement, we will, as
soon as practicable, issue and deliver the securities purchasable
upon such exercise. If less than all of the warrants (or the
warrants represented by such warrant certificate) are exercised, a
new warrant or a new warrant certificate, as applicable, will be
issued for the remaining warrants.
Governing Law
Unless
we provide otherwise in the applicable prospectus supplement, the
warrants and any warrant agreements will be governed by and
construed in accordance with the laws of the Province of British
Columbia, Canada.
14
Enforceability of Rights by Holders of Warrants
Each
warrant agent, if any, will act solely as our agent under the
applicable warrant agreement and will not assume any obligation or
relationship of agency or trust with any holder of any warrant. A
single bank or trust company may act as warrant agent for more than
one issue of warrants. A warrant agent will have no duty or
responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any
demand upon us. Any holder of a warrant may, without the consent of
the related warrant agent or the holder of any other warrant,
enforce by appropriate legal action its right to exercise, and
receive the securities purchasable upon exercise of, its
warrants.
Outstanding Warrants
As
of August 29, 2019, there were 48,914 common shares issuable upon
exercise of outstanding warrants at a weighted-average exercise
price of $11.19 per share. The warrants may be exercised for cash
or, under certain circumstances, on a cashless basis, in which case
we will deliver, upon exercise, the number of shares with respect
to which the warrant is being exercised reduced by a number of
shares having a value (as determined in accordance with the terms
of the applicable warrant) equal to the aggregate exercise price of
the shares with respect to which the warrant is being
exercised.
DESCRIPTION OF UNITS
The
following description, together with the additional information we
may include in any applicable prospectus supplements and free
writing prospectuses, summarizes the material terms and provisions
of the units that we may offer under this prospectus. While the
terms we have summarized below will apply generally to any units
that we may offer under this prospectus, we will describe the
particular terms of any series of units in more detail in the
applicable prospectus supplement. The terms of any units offered
under a prospectus supplement may differ from the terms described
below. However, no prospectus supplement will fundamentally change
the terms that are set forth in this prospectus or offer a security
that is not registered and described in this prospectus at the time
of its effectiveness.
We
will file as exhibits to the registration statement of which this
prospectus is a part, or will incorporate by reference from a
current report on Form 8-K that we file with the SEC, the form of
unit agreement that describes the terms of the series of units we
are offering, and any supplemental agreements, before the issuance
of the related series of units. The following summaries of material
terms and provisions of the units are subject to, and qualified in
their entirety by reference to, all the provisions of the unit
agreement and any supplemental agreements applicable to a
particular series of units. We urge you to read the applicable
prospectus supplements related to the particular series of units
that we sell under this prospectus, as well as the complete unit
agreement and any supplemental agreements that contain the terms of
the units.
General
We
will describe in the applicable prospectus supplement the terms of
the series of units being offered, including:
●
the
offering price and aggregate number of units offered;
●
the
currency for which the units may be purchased;
●
if
applicable, the designation and terms of the units and of the
securities comprising the units, including whether and under what
circumstances those securities may be held or transferred
separately;
●
a
discussion of material or special Canadian and U.S. federal income
tax considerations, if any, of holding the units; and
●
any
other specific terms, preferences, rights or limitations of or
restrictions on the units.
15
The
provisions described in this section, as well as those described
under “Description of Capital Stock” and
“Description of Warrants” will apply to each unit and
to any common shares, preferred shares or warrant included in each
unit, respectively.
Governing Law
Unless
we provide otherwise in the applicable prospectus supplement, the
units and any unit agreements will be governed by and construed in
accordance with the laws of the Province of British Columbia,
Canada.
Enforceability of Rights by Holders of Units
Each
unit agent, if any, will act solely as our agent under the
applicable unit agreement and will not assume any obligation or
relationship of agency or trust with any holder of any unit. A
single bank or trust company may act as unit agent for more than
one series of units. A unit agent will have no duty or
responsibility in case of any default by us under the applicable
unit agreement or unit, including any duty or responsibility to
initiate any proceedings at law or otherwise, or to make any demand
upon us. Any holder of a unit may, without the consent of the
related unit agent or the holder of any other unit, enforce by
appropriate legal action its rights as holder under any security
included in the unit.
LEGAL OWNERSHIP OF
SECURITIES
We
can issue securities in registered form or in the form of one or
more global securities. We describe global securities in greater
detail below. We refer to those persons who have securities
registered in their own names on the books that we or any
applicable trustee, depositary or warrant agent maintain for this
purpose as the “holders” of those securities. These
persons are the legal holders of the securities. We refer to those
persons who, indirectly through others, own beneficial interests in
securities that are not registered in their own names, as
“indirect holders” of those securities. As we discuss
below, indirect holders are not legal holders, and investors in
securities issued in book-entry form or in street name will be
indirect holders.
Book-Entry Holders
We
may issue securities in book-entry form only, as we will specify in
the applicable prospectus supplement. This means securities may be
represented by one or more global securities registered in the name
of a financial institution that holds them as depositary on behalf
of other financial institutions that participate in the
depositary’s book-entry system. These participating
institutions, which are referred to as participants, in turn, hold
beneficial interests in the securities on behalf of themselves or
their customers.
Only
the person in whose name a security is registered is recognized as
the holder of that security. Securities issued in global form will
be registered in the name of the depositary or its participants.
Consequently, for securities issued in global form, we will
recognize only the depositary as the holder of the securities, and
we will make all payments on the securities to the depositary. The
depositary passes along the payments it receives to its
participants, which in turn pass the payments along to their
customers who are the beneficial owners. The depositary and its
participants do so under agreements they have made with one another
or with their customers; they are not obligated to do so under the
terms of the securities.
As
a result, investors in a book-entry security will not own
securities directly. Instead, they will own beneficial interests in
a global security, through a bank, broker or other financial
institution that participates in the depositary’s book-entry
system or holds an interest through a participant. As long as the
securities are issued in global form, investors will be indirect
holders, and not holders, of the securities.
16
Street Name Holders
We
may terminate a global security or issue securities in non-global
form. In these cases, investors may choose to hold their securities
in their own names or in “street name.” Securities held
by an investor in street name would be registered in the name of a
bank, broker or other financial institution that the investor
chooses, and the investor would hold only a beneficial interest in
those securities through an account he or she maintains at that
institution.
For
securities held in street name, we will recognize only the
intermediary banks, brokers and other financial institutions in
whose names the securities are registered as the holders of those
securities, and we will make all payments on those securities to
them. These institutions pass along the payments they receive to
their customers who are the beneficial owners, but only because
they agree to do so in their customer agreements or because they
are legally required to do so. Investors who hold securities in
street name will be indirect holders, not holders, of those
securities.
Legal Holders
Our
obligations, as well as the obligations of any applicable trustee
and of any third parties employed by us or a trustee, run only to
the legal holders of the securities. We do not have obligations to
investors who hold beneficial interests in global securities, in
street name or by any other indirect means. This will be the case
whether an investor chooses to be an indirect holder of a security
or has no choice because we are issuing the securities only in
global form. For example, once we make a payment or give a notice
to the holder, we have no further responsibility for the payment or
notice even if that holder is required, under agreements with
depositary participants or customers or by law, to pass it along to
the indirect holders but does not do so.
Special Considerations For Indirect Holders
If
you hold securities through a bank, broker or other financial
institution, either in book-entry form or in street name, you
should check with your own institution to find out:
●
how
it handles securities payments and notices;
●
whether
it imposes fees or charges;
●
how
it would handle a request for the holders’ consent, if ever
required;
●
whether
and how you can instruct it to send you securities registered in
your own name so you can be a holder, if that is permitted in the
future;
●
how
it would exercise rights under the securities if there were a
default or other event triggering the need for holders to act to
protect their interests; and
●
if
the securities are in book-entry form, how the depositary’s
rules and procedures will affect these matters.
Global Securities
A
global security is a security that represents one or any other
number of individual securities held by a depositary. Generally,
all securities represented by the same global securities will have
the same terms.
Each
security issued in book-entry form will be represented by a global
security that we deposit with and register in the name of a
financial institution or its nominee that we select. The financial
institution that we select for this purpose is called the
depositary. Unless we specify otherwise in the applicable
prospectus supplement, The Depository Trust Company, New York,
New York, known as DTC, will be the depositary for all securities
issued in book-entry form.
17
A
global security may not be transferred to or registered in the name
of anyone other than the depositary, its nominee or a successor
depositary, unless special termination situations arise. We
describe those situations below under “Special Situations
When a Global Security Will Be Terminated.” As a result of
these arrangements, the depositary, or its nominee, will be the
sole registered owner and holder of all securities represented by a
global security, and investors will be permitted to own only
beneficial interests in a global security. Beneficial interests
must be held by means of an account with a broker, bank or other
financial institution that in turn has an account with the
depositary or with another institution that does. Thus, an investor
whose security is represented by a global security will not be a
holder of the security, but only an indirect holder of a beneficial
interest in the global security.
If
the prospectus supplement for a particular security indicates that
the security will be issued in global form only, then the security
will be represented by a global security at all times unless and
until the global security is terminated. If termination occurs, we
may issue the securities through another book-entry clearing system
or decide that the securities may no longer be held through any
book-entry clearing system.
Special Considerations For Global Securities
The
rights of an indirect holder relating to a global security will be
governed by the account rules of the investor’s financial
institution and of the depositary, as well as general laws relating
to securities transfers. We do not recognize an indirect holder as
a holder of securities and instead deal only with the depositary
that holds the global security.
If
securities are issued only in the form of a global security, an
investor should be aware of the following:
●
an
investor cannot cause the securities to be registered in his or her
name, and cannot obtain non-global certificates for his or her
interest in the securities, except in the special situations we
describe below;
●
an
investor will be an indirect holder and must look to his or her own
bank or broker for payments on the securities and protection of his
or her legal rights relating to the securities, as we describe
above;
●
an
investor may not be able to sell interests in the securities to
some insurance companies and to other institutions that are
required by law to own their securities in non-book-entry
form;
●
an
investor may not be able to pledge his or her interest in a global
security in circumstances where certificates representing the
securities must be delivered to the lender or other beneficiary of
the pledge in order for the pledge to be effective;
●
the
depositary’s policies, which may change from time to time,
will govern payments, transfers, exchanges and other matters
relating to an investor’s interest in a global
security;
●
we
and any applicable trustee have no responsibility for any aspect of
the depositary’s actions or for its records of ownership
interests in a global security, nor do we or any applicable trustee
supervise the depositary in any way;
●
the
depositary may, and we understand that DTC will, require that those
who purchase and sell interests in a global security within its
book-entry system use immediately available funds, and your broker
or bank may require you to do so as well; and
●
financial
institutions that participate in the depositary’s book-entry
system, and through which an investor holds its interest in a
global security, may also have their own policies affecting
payments, notices and other matters relating to the
securities.
18
There
may be more than one financial intermediary in the chain of
ownership for an investor. We do not monitor and are not
responsible for the actions of any of those
intermediaries.
Special Situations When a Global Security Will Be
Terminated
In
a few special situations described below, the global security will
terminate and interests in it will be exchanged for physical
certificates representing those interests. After that exchange, the
choice of whether to hold securities directly or in street name
will be up to the investor. Investors must consult their own banks
or brokers to find out how to have their interests in securities
transferred to their own name, so that they will be direct holders.
We have described the rights of holders and street name investors
above.
Unless
we provide otherwise in the applicable prospectus supplement, the
global security will terminate when the following special
situations occur:
●
if
the depositary notifies us that it is unwilling, unable or no
longer qualified to continue as depositary for that global security
and we do not appoint another institution to act as depositary
within 90 days;
●
if
we notify any applicable trustee that we wish to terminate that
global security; or
●
if
an event of default has occurred with regard to securities
represented by that global security and has not been cured or
waived.
The
prospectus supplement may also list additional situations for
terminating a global security that would apply only to the
particular series of securities covered by the applicable
prospectus supplement. When a global security terminates, the
depositary, and not we or any applicable trustee, is responsible
for deciding the names of the institutions that will be the initial
direct holders.
PLAN OF DISTRIBUTION
We
may sell the securities from time to time pursuant to underwritten
public offerings, “at the market” offerings, negotiated
transactions, block trades or a combination of these methods. We
may sell the securities to or through underwriters or dealers,
through agents, or directly to one or more purchasers. We may
distribute securities from time to time in one or more
transactions:
●
at
a fixed price or prices, which may be changed;
●
at
market prices prevailing at the time of sale;
●
at
prices related to such prevailing market prices; or
●
at
negotiated prices.
A
prospectus supplement or supplements (and any related free writing
prospectus that we may authorize to be provided to you) will
describe the terms of the offering of the securities, including, to
the extent applicable:
●
the
name or names of the underwriters, if any;
●
the
purchase price of the securities or other consideration therefor,
and the proceeds, if any, we will receive from the
sale;
●
any
over-allotment options under which underwriters may purchase
additional securities from us;
●
any
agency fees or underwriting discounts and other items constituting
agents’ or underwriters’ compensation;
●
any
public offering price;
19
●
any
discounts or concessions allowed or reallowed or paid to dealers;
and
●
any
securities exchange or market on which the securities may be
listed.
Only
underwriters named in the prospectus supplement will be
underwriters of the securities offered by the prospectus
supplement.
If
underwriters are used in the sale, they will acquire the securities
for their own account and may resell the securities from time to
time in one or more transactions at a fixed public offering price
or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the securities will be
subject to the conditions set forth in the applicable underwriting
agreement. We may offer the securities to the public through
underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. Subject to certain conditions,
the underwriters will be obligated to purchase all of the
securities offered by the prospectus supplement, other than
securities covered by any over-allotment option. Any public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers may change from time to time. We may
use underwriters with whom we have a material relationship. We will
describe in the prospectus supplement, naming the underwriter, the
nature of any such relationship.
We
may sell securities directly or through agents we designate from
time to time. We will name any agent involved in the offering and
sale of securities and we will describe any commissions we will pay
the agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, our agent will act on a best-efforts
basis for the period of its appointment.
We
may authorize agents or underwriters to solicit offers by certain
types of institutional investors to purchase securities from us at
the public offering price set forth in the prospectus supplement
pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. We will describe the
conditions to these contracts and the commissions we must pay for
solicitation of these contracts in the prospectus
supplement.
We
may provide agents and underwriters with indemnification against
civil liabilities, including liabilities under the Securities Act,
or contribution with respect to payments that the agents or
underwriters may make with respect to these liabilities. Agents and
underwriters may engage in transactions with, or perform services
for, us in the ordinary course of business.
All
securities we may offer, other than common shares, will be new
issues of securities with no established trading market. Any
underwriters may make a market in these securities, but will not be
obligated to do so and may discontinue any market making at any
time without notice. We cannot guarantee the liquidity of the
trading markets for any securities.
Any
underwriter may engage in over-allotment, stabilizing transactions,
short-covering transactions and penalty bids in accordance with
Regulation M under the Exchange Act. Over-allotment involves sales
in excess of the offering size, which create a short position.
Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a specified
maximum price. Syndicate-covering or other short-covering
transactions involve purchases of the securities, either through
exercise of the over-allotment option or in the open market after
the distribution is completed, to cover short positions. Penalty
bids permit the underwriters to reclaim a selling concession from a
dealer when the securities originally sold by the dealer are
purchased in a stabilizing or covering transaction to cover short
positions. Those activities may cause the price of the securities
to be higher than it would otherwise be. If commenced, the
underwriters may discontinue any of the activities at any
time.
20
Any
underwriters that are qualified market makers on The Nasdaq Capital
Market may engage in passive market making transactions in the
common shares on The Nasdaq Capital Market in accordance with
Regulation M under the Exchange Act, during the business day prior
to the pricing of the offering, before the commencement of offers
or sales of the common shares. Passive market makers must comply
with applicable volume and price limitations and must be identified
as passive market makers. In general, a passive market maker must
display its bid at a price not in excess of the highest independent
bid for such security; if all independent bids are lowered below
the passive market maker’s bid, however, the passive market
maker’s bid must then be lowered when certain purchase limits
are exceeded. Passive market making may stabilize the market price
of the securities at a level above that which might otherwise
prevail in the open market and, if commenced, may be discontinued
at any time.
CERTAIN TAX CONSIDERATIONS
Edesa
Biotech, Inc. is a British Columbia, Canada corporation. As such,
there are important tax considerations to U.S. holders and non-U.S.
holders under United States and Canadian federal income taxation.
Certain tax considerations are included in our most recent Annual
Report on Form 10-K for the fiscal year ended September 30, 2018,
on file with the SEC, which is incorporated by reference into this
prospectus.
Given
the complexity of the tax laws and because the tax consequences to
any particular shareholder may be affected by matters not discussed
in our Annual Report on Form 10-K, shareholders are urged to
consult their own tax advisors with respect to the specific tax
consequences of the acquisition, ownership and disposition of our
equity securities, including the applicability and effect of state,
local and non-U.S. tax laws, as well as U.S. federal tax
laws.
LEGAL MATTERS
In connection with
particular offerings of the securities in the future, unless
otherwise stated in the applicable prospectus supplement,
the validity of the securities being offered hereby will be passed
upon for us by Fasken Martineau DuMoulin, LLP, Toronto, Ontario,
Canada and
certain other matters will be passed upon for us by Stubbs Alderton
& Markiles, LLP, Sherman Oaks, California. Any underwriters
will also be advised about legal matters by their own counsel,
which will be named in the prospectus
supplement.
EXPERTS
The
balance sheets of Edesa Biotech Research, Inc. (formerly known as
Edesa Biotech Inc.) as of December 31, 2018 and 2017, and the
related statements of operations and comprehensive loss, changes in
shareholders’ equity and cash flows of Edesa Biotech Inc. for
each of the two years ended December 31, 2018 and 2017,
incorporated by reference in this Registration Statement on Form
S-3 have been so incorporated in reliance on the report of MNP LLP,
an independent registered public accounting firm, given on the
authority of said firm as experts in auditing and
accounting.
21
WHERE YOU CAN FIND MORE
INFORMATION
This
prospectus is part of the registration statement on Form S-3 we
filed with the SEC under the Securities Act and does not contain
all the information set forth in the registration statement.
Whenever a reference is made in this prospectus to any of our
contracts, agreements or other documents, the reference may not be
complete and you should refer to the exhibits that are a part of
the registration statement or the exhibits to the reports or other
documents incorporated by reference into this prospectus for a copy
of such contract, agreement or other document. Because we are
subject to the information and reporting requirements of the
Exchange Act, we file annual, quarterly and current reports, proxy
statements and other information with the SEC. Our SEC filings are
available to the public over the Internet at the SEC’s
website at www.sec.gov. Our Internet address is
www.edesabiotech.com. You may also read and copy any document we
file at the SEC’s Public Reference Room at 100 F Street,
N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330
for further information on the operation of the Public Reference
Room. We are also a “reporting issuer” in the Canadian
provinces of British Columbia and Alberta. As such, information we
file the SEC is also available under our profile at
www.SEDAR.com.
INCORPORATION OF CERTAIN INFORMATION BY
REFERENCE
The
SEC allows us to incorporate by reference the information we file
with it, which means that we can disclose important information to
you by referring you to another document that we have filed
separately with the SEC. You should read the information
incorporated by reference because it is an important part of this
prospectus. We incorporate by reference the following information
or documents that we have filed with the SEC (Commission File No.
001-37619):
●
Our
Annual Report on Form 10-K for our fiscal year ended September
30, 2018 (filed on November 30, 2018);
●
Our
Quarterly Reports on Form 10-Q for our quarters ended December 31,
2018 (filed on February 5, 2019), March 31, 2019 (filed on May 8,
2019) and June 30, 2019 (filed on August 14, 2019);
●
Our
Current Reports on Form 8-K, dated March 7, 2019, 2018 (filed on
March 8, 2019); dated May 30, 2019 (filed on May 30, 2019); dated
June 7, 2019 (filed on June 10, 2019 and amended on each of June
20, 2019 and August 14, 2019) and August 30, 2019 (filed on August
30, 2019);
●
Our
Definitive Proxy Statement filed with the SEC on April 18, 2019;
and
●
The description of
our common shares contained in Amendment No. 2 to our Registration
Statement on Form 20-F/A, filed with the SEC on July 5, 2012,
including any amendment or report filed for the purpose of updating
such description.
Any
information in any of the foregoing documents will automatically be
deemed to be modified or superseded to the extent that information
in this prospectus or in a later filed document that is
incorporated or deemed to be incorporated herein by reference
modifies or replaces such information.
We
also incorporate by reference any future filings (other than
current reports furnished under Item 2.02 or Item 7.01 of
Form 8-K and exhibits filed on such form that are related to
such items) made with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, including all such reports
filed after the date of the initial registration statement and
prior to effectiveness of the registration statement, until we file
a post-effective amendment that indicates the termination of the
offering of the securities made by this prospectus. Information in
such future filings updates and supplements the information
provided in this prospectus. Any statements in any such future
filings will automatically be deemed to modify and supersede any
information in any document we previously filed with the SEC that
is incorporated or deemed to be incorporated herein by reference to
the extent that statements in the later filed document modify or
replace such earlier statements.
We will
furnish without charge to each person to whom a copy of this
prospectus is delivered, upon written or oral request, a copy of
the documents that have been incorporated by reference into this
prospectus, including exhibits to these documents. You should
direct any requests for copies to: Investor Relations, Edesa
Biotech, Inc., 100 Spy Court, Markham, Ontario L3R 5H6 Canada;
telephone number (905) 475-1234.
22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM
14.
OTHER
EXPENSES OF ISSUANCE AND DISTRIBUTION.
The
following table sets forth the estimated costs and expenses, other
than the underwriting discounts and commissions payable by the
Registrant in connection with the offering of the securities being
registered. All amounts are estimates, except the SEC registration
fee.
|
SEC registration
fee
|
$6,060
|
|
Accounting fees and
expenses
|
*
|
|
Legal fees and
expenses
|
*
|
|
Transfer Agent fees
and expenses
|
*
|
|
Printing and
related fees
|
*
|
|
Miscellaneous
|
*
|
|
Total
|
$*
|
*
Estimated fees and expenses are not presently known. The foregoing
sets forth the general categories of fees and expenses (other than
underwriting discounts and commissions) that we anticipate we will
incur in connection with the offering of securities under this
registration statement. An estimate of the aggregate fees and
expenses in connection with the issuance and distribution of the
securities being offered will be included in the applicable
prospectus supplement.
ITEM
15.
INDEMNIFICATION
OF DIRECTORS AND OFFICERS.
Subject
to the British Columbia Business
Corporations Act, or “the Act”, our directors,
former directors and alternate directors and their heirs and legal
personal representatives are indemnified against any judgment,
penalty or fine awarded or imposed in, or an amount paid in
settlement of, a stipulated legal or investigative proceeding, as
set forth in our Articles. In addition, our Articles provide that
we may, subject to any restrictions in the Act, indemnify any
person.
Under
the Act, we may indemnify (a) a current or former director or
officer of the Company; (b) a current or former director or officer
of another corporation at a time when that corporation is or was an
affiliate of the Company; (c) a current or former director or
officer of another corporation who holds or held such position at
the request of the Company; or (d) an individual who at the request
of the Company, is or was, or holds or held a position equivalent
to that of, a director, or officer of a partnership, trust, joint
venture or other unincorporated entity, (collectively, an
“Eligible Party”). In certain circumstances an Eligible
Party will include the heirs and personal or other legal
representatives of an Eligible Party. We may indemnify an Eligible
Party against any Eligible Penalty (defined below) to which the
Eligible Party is or may be liable. After the final disposition of
an Eligible Proceeding (defined below), we may pay all Expenses
(defined below) actually and reasonably incurred by the Eligible
Party in connection with such Proceeding (defined below) and must
pay all such Expenses actually and reasonably incurred by the
Eligible Party in connection with such Proceeding if the Eligible
Party has not been reimbursed for those Expenses and is wholly
successful on the merits or otherwise in the outcome of the
Proceeding. Among other circumstances, we shall not indemnify or
cover the Expenses of an Eligible Party if the Eligible Party did
not act honestly and in good faith with a view to the best
interests of the Company or if the Eligible Party (other than in
connection with a civil Proceeding) did not have reasonable grounds
for believing that the Eligible Party’s conduct in respect of
which the Proceeding was brought was lawful. Further, we cannot
indemnify or cover the Expenses of an Eligible Party in respect of
any Proceeding brought by or on behalf of the Company against an
Eligible Party. The Supreme Court of British Columbia may, among
other things, on the applications of a corporation or an Eligible
Party, order indemnification by the Company of any liability or
expense incurred by an Eligible Party.
II-1
“Eligible
Penalty” means a judgment, penalty or fine awarded or imposed
in, or an amount paid in settlement of, an Eligible
Proceeding.
“Eligible
Proceeding” means any legal proceeding or investigative
action, whether current, threatened, pending or completed (each, a
“Proceeding”), in which an Eligible Party, or any of
the Eligible Party’s heirs and personal or other legal
representatives (i) is or may be joined as a party, or (ii) is or
may be liable for or in respect of a judgment, penalty or fine in,
or Expenses related to, such Proceeding, in each case by reason of
the Eligible Party’s being or having been a director or
officer of, or holding or having held a position equivalent to that
of a director or officer of, the Company, one of its current or
former subsidiaries or affiliates, or another entity at the
Company’s request.
“Expenses”
includes costs, charges and expenses, including legal and other
fees, but does not include judgments, penalties, fines or amounts
paid in settlement of a Proceeding.
We have
also entered into separate indemnification agreements with each of
our directors and executive officers, which are intended to
indemnify our directors and executive officers to the fullest
extent permitted under the laws of the Province of British
Columbia, subject to certain exceptions. Our obligations under such
separate indemnification agreements are in addition to our
indemnification obligations under the Act and our charter
documents. We maintain a directors’ and officers’
liability insurance policy, which insures directors and officers of
the Company and its subsidiaries for losses as a result of claims
based upon the directors’ and officers’ acts or
omissions, including liabilities arising under the Securities Act.
The policy also reimburses us for payments made pursuant to the
indemnity provisions under the Act and our charter
documents.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has
been informed that in the opinion of the U.S. Securities and
Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is therefore
unenforceable.
ITEM
16. EXHIBITS.
|
Exhibit
|
|
Incorporated by
Reference
|
Filed
|
||||
|
Number
|
Exhibit
Description
|
Form
|
File
Number
|
Exhibit
|
Filing
Date
|
Herewith
|
|
|
|
|
|
|
|
|
|
|
|
1.1
|
Form of
Underwriting Agreement
|
|
|
|
|
(1)
|
|
|
Certificate of Incorporation of the Company, dated June 12,
2007
|
20-F
|
000-54598
|
1(a)
|
February 3,
2012
|
|
||
|
Certificate of Amendment of the Company, dated April 15,
2008
|
20-F
|
000-54598
|
1(b)
|
February 3,
2012
|
|
||
|
Certificate of Continuation of the Company, dated November 25,
2009
|
20-F
|
000-54598
|
1(c)
|
February 3,
2012
|
|
||
|
Certificate of Change of Name of the Company, dated April 7,
2010
|
20-F
|
000-54598
|
1(f)
|
February 3,
2012
|
|
||
|
Amended
and Restated Notice of Articles
|
8-K
|
001-37619
|
3.1
|
June
10, 2019
|
|
||
|
Amended
and Restated Articles
|
8-K
|
001-37619
|
3.1
|
April
11, 2018
|
|
||
|
Specimen
of common share certificate
|
|
|
|
|
X
|
||
|
4.2
|
Specimen preferred share certificate
|
|
|
|
|
(1)
|
|
|
4.3
|
Form of
Common Share Warrant Agreement and Warrant Certificate
|
|
|
|
|
(1)
|
|
|
4.4
|
Form of
Preferred Share Warrant Agreement and Warrant
Certificate
|
|
|
|
|
(1)
|
|
|
4.5
|
Form of
Unit Agreement and Unit Certificate
|
|
|
|
|
(1)
|
|
|
Opinion
of Fasken Martineau DuMoulin, LLP
|
|
|
|
|
X
|
||
|
Consent
of MNP LLP
|
|
|
|
|
X
|
||
|
Consent
of Moss Adams LLP
|
|
|
|
|
X
|
||
|
Consent
of Fasken Martineau DuMoulin, LLP (included in Exhibit
5.1)
|
|
|
|
|
X
|
||
|
Consent
of Stubbs, Alderton & Markiles, LLP
|
|
|
|
|
X
|
||
|
Power
of Attorney (included on signature page)
|
|
|
|
|
X
|
||
(1)
To be filed by
amendment or as an exhibit to a document to be incorporated or
deemed to be incorporated by reference in this registration
statement, including a Current Report on Form 8-K.
ITEM 17. UNDERTAKINGS.
The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement
to:
(i)
include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii)
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in the volume of securities offered (if
the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20% change in the maximum
aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration
statement; and
(iii) To
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that
paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the
information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished
to the Commission by the Registrant pursuant to Section 13 and
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration
statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) That,
for the purpose of determining liability under the Securities Act
of 1933 to any purchaser:
II-2
(A) Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall
be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the
registration statement; and
(B) Each prospectus required to be filed
pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a
registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed to
be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made
in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(5) That,
for the purpose of determining liability of the Registrant under
the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned Registrant
undertakes that in a primary offering of securities of the
undersigned Registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned Registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned Registrant
relating to the offering required to be filed pursuant to
Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on
behalf of the undersigned Registrant or used or referred to by the
undersigned Registrant;
(iii) The
portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
Registrant or its securities provided by or on behalf of the
undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by the
undersigned Registrant to the purchaser.
(6) That, for purposes of determining any
liability under the Securities Act of 1933, each filing of the
Registrant’s annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(7) That,
for purposes of determining any liability under the Securities Act
of 1933:
(i) The
information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant
to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall
be deemed to be part of this registration statement as of the time
it was declared effective;
II-3
(ii) Each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
Insofar
as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Exchange Act
and will be governed by the final adjudication of such
issue.
II-4
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Markham,
Province of Ontario, on August 30, 2019.
|
|
EDESA
BIOTECH, INC.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Michael Brooks
|
|
|
|
Michael
Brooks
|
|
|
|
President
|
POWER OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Pardeep Nijhawan and Michael
Brooks, and each of them, his true and lawful attorneys-in-fact and
agents with full power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
Registration Statement, and to sign any registration statement for
the same offering covered by the Registration Statement that is to
be effective upon filing pursuant to Rule 462(b) promulgated under
the Securities Act, and all post-effective amendments thereto, and
to file the same, with all exhibits thereto and all documents in
connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or his or their
substitute or substitutes, may lawfully do or cause to be done or
by virtue hereof.
Pursuant to the
requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the
capacities and on the dates stated.
|
Signature
|
Title
|
Date
|
|
|
|
|
|
/s/ Pardeep
Nijhawan
Pardeep
Nijhawan
|
Chief
Executive Officer, Secretary and Director
(Principal
Executive Officer)
|
August
30, 2019
|
|
/s/ Kathi
Niffenegger
Kathi
Niffenegger
|
Chief
Financial Officer
(Principal
Financial and Accounting Officer)
|
August
30, 2019
|
|
/s/ Lorin Johnson
Lorin
Johnson
|
Director
|
August
30, 2019
|
|
/s/ Sean
MacDonald
Sean
MacDonald
|
Chairman
of the Board
|
August
30, 2019
|
|
/s/ Frank
Oakes
Frank
Oakes
|
Director
|
August
30, 2019
|
|
/s/ Paul
Pay
Paul
Pay
|
Director
|
August
30, 2019
|
|
/s/ Carlo
Sistilli
Carlo
Sistilli
|
Director
|
August
30, 2019
|
|
/s/ Peter van der
Velden
Peter
van der Velden
|
Director
|
August
30, 2019
|
S-1
Exhibit 4.1
Exhibit 5.1
August
30, 2019
Edesa Biotech, Inc.
100 Spy Court
Markham, ON L3R 5H6
Canada
Dear Sirs/Mesdames:
Re:
Edesa Biotech, Inc. - Registration Statement on Form
S-3
We have
acted as Canadian legal counsel to Edesa Biotech, Inc., a British
Columbia corporation (the “Company”), in connection with the
preparation of the Company’s Registration Statement on Form
S-3 (the “Registration
Statement”), to be filed on the date hereof by the
Company with the United States Securities and Exchange Commission
(the “Commission”). The Registration
Statement relates to the offer and sale from time to time by the
Company on a delayed or continuous basis pursuant to Rule 415 of
the General Rules and Regulations promulgated under the Securities
Act of 1933, as amended (the “Act”), as set forth in the
Registration Statement, the prospectus contained therein (the
“Prospectus”)
and any supplement to the prospectus referred to therein (each, a
“Prospectus
Supplement”), of securities with an aggregate initial
offering price of up to US$50,000,000, or the equivalent thereof,
of the following securities of the Company:
(i)
shares of common
stock, no par value (“Common
Stock”);
(ii)
preferred shares,
no par value (“Preferred
Shares”);
(iii)
warrants
representing the right to receive, upon exercise, Common Stock or
Preferred Shares (the “Warrants”), which may be issued
pursuant to one or more warrant agreements (each, a
“Warrant
Agreement”) proposed to be entered into by the Company
and the parties to be named therein, which may include a warrant
agent (the “Warrant
Agent”); and
(iv)
such indeterminate
number of shares of Common Stock or Preferred Shares (the
“Indeterminate Common
Stock” and “Indeterminate Preferred Shares”,
respectively) as may be issued upon conversion, exchange,
settlement or exercise of any Warrants, including such shares of
Common Stock, or Preferred Shares, as may be issued pursuant to
anti-dilution adjustments, in amounts, at prices and on terms to be
determined at the time of the offering.
The
Common Stock, Preferred Shares, Warrants, Indeterminate Common
Stock, and Indeterminate Preferred Shares are hereinafter referred
to collectively as the “Securities”.
This
opinion is being delivered to you in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act and
is limited to the laws, including the rules and regulations under
the Act, as in effect on the date hereof.
We have
examined originals or certified copies of such corporate records,
documents, certificates and instruments as we have deemed relevant
and necessary for the basis of our opinions hereinafter expressed.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity
of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as duplicates
or certified or conformed copies, and the authenticity of originals
or such latter documents. In making our examination of executed
documents or documents to be executed, we have assumed that the
parties thereto, including the Company, had or will have the power,
corporate or other, to enter into and perform all obligations
thereunder and have also assumed the due authorization by all
requisite action, corporate or other, and execution and delivery by
such parties of such documents and, the validity and binding effect
on all such parties.
In
rendering our opinions set forth herein, we have also assumed that,
at the time of any offer and sale of Securities, (i) the Company
has been duly organized and is validly existing and in good
standing, and has the requisite legal status and legal capacity,
under the laws of the Province of British Columbia; (ii) the
Company has complied and will comply with the laws of all relevant
jurisdictions in connection with the transactions contemplated by,
and the performance of its obligations under, the Registration
Statement; (iii) the Registration Statement and any amendments
thereto (including any post-effective amendments thereto) has
become effective under the Act; (iv) that an appropriate Prospectus
Supplement or term sheet with respect to the Securities offered
thereby has been prepared, delivered and filed in compliance with
the Act and the applicable rules and regulations thereunder; (v)
that a definitive purchase, underwriting or similar agreement (a
“Purchase
Agreement”) with respect to any offered Securities
will have been duly authorized and validly executed and delivered
by the Company and the other parties thereto and will be filed with
the Commission on a Current Report on Form 8-K or other applicable
periodic report in the manner contemplated in the Registration
Statement or applicable Prospectus Supplement; (vi) that the
Securities will be issued and sold in compliance with applicable
U.S. federal and state securities laws and in the manner stated in
the Registration Statement and the applicable Prospectus
Supplement; and (vii) that any Securities issuable upon conversion,
exchange, redemption or exercise of any Securities being offered
will be duly authorized, created and, if appropriate, reserved for
issuance upon such conversion, exchange, redemption or exercise. As
to any facts material to our opinion, we have made no independent
investigation of such facts and have relied, to the extent that we
deem such reliance proper, upon certificates of public officials
and officers or other representatives of the Company.
Based
solely upon and subject to the foregoing, and subject to the
assumptions, limitations, exceptions and qualifications stated
herein, we are of the opinion that:
2.
With respect to any
shares of Common Stock offered by the Company, including any
Indeterminate Common Stock (collectively, the “Offered Common Stock”), when (i)
the Board of Directors of the Company or a duly authorized
committee thereof (collectively referred to herein as the
“Board”) and the
appropriate officers of the Company have taken all necessary
corporate action to approve the issuance of the Offered Common
Stock, the consideration to be received therefor and related
matters; (ii) the terms of the issuance and sale of the Offered
Common Stock have been duly established and are then in conformity
with the Company’s Notice of Articles, as amended, or the
Company’s Articles as then in effect (together, the
“Charter
Documents”) so as not to violate any applicable law or
such Charter Documents, or result in a default under or breach of
any agreement or instrument binding upon the Company, and so as to
comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company; and (iii)
such Offered Common Stock has been issued and delivered against
payment therefor in accordance with the terms of the Purchase
Agreement or, if issuable upon exchange or conversion of any other
Security, in accordance with the terms of such Security or the
instrument governing such Security, with certificates representing
such Offered Common Stock having been duly executed, countersigned,
registered and delivered or, if uncertificated, valid book-entry
notations therefor having been made in the share register of the
Company, in accordance with the terms of the applicable Purchase
Agreement or, if issuable upon exchange or conversion of any other
Security, in accordance with the terms of such Security or the
instrument governing such Security providing for such conversion or
exercise as approved by the Board (provided that such consideration
is not less than the par value of the Common Stock), the Offered
Common Stock (including any Common Stock duly issued upon
conversion, exchange or exercise of any other Security) will be
validly issued, fully paid and non-assessable.
3.
With respect to any
Preferred Shares offered by the Company, including any
Indeterminate Preferred Shares (collectively, the
“Offered Preferred
Shares”), when (i) the Board and the appropriate
officers of the Company have taken all necessary corporate action
to approve the issuance of the Offered Preferred Shares, the
consideration to be received therefor and related matters; (ii) the
terms of the issuance and sale of the Offered Preferred Shares have
been duly established and are then in conformity with the Charter
Documents so as not to violate any applicable law or such Charter
Documents, or result in a default under or breach of any agreement
or instrument binding upon the Company, and so as to comply with
any requirement or restriction imposed by any court or governmental
body having jurisdiction over the Company; and (iii) such Offered
Preferred Shares have been issued and delivered against payment
therefor in accordance with the terms of the Purchase Agreement or,
if issuable upon exchange or conversion of any other Security, in
accordance with the terms of such Security or the instrument
governing such Security, with certificates representing such
Offered Preferred Shares having been duly executed, countersigned,
registered and delivered or, if uncertificated, valid book-entry
notations therefor having been made in the share register of the
Company, in accordance with the terms of the applicable Purchase
Agreement or, if issuable upon exchange or conversion of any other
Security, in accordance with the terms of such Security or the
instrument governing such Security providing for such conversion or
exercise as approved by the Board (provided that such consideration
is not less than the par value of the Common Stock), the Offered
Preferred Shares (including any Preferred Shares duly issued upon
conversion, exchange or exercise of any other Security) will be
validly issued, fully paid and non-assessable.
4.
With respect to the
Warrants offered by the Company (the “Offered Warrants”), when (i) the
Board and the appropriate officers of the Company have taken all
necessary corporate action to approve the issuance and terms of the
Offered Warrants and the Securities into which such Offered
Warrants are exercisable, the consideration to be received therefor
and related matters; (ii) a definitive Warrant Agreement relating
to the Offered Warrants (to be filed on a Current Report on Form
8-K or other applicable periodic report in the manner contemplated
by the Registration Statement or any Prospectus Supplement or term
sheet relating thereto) has been duly authorized, executed and
delivered by the Company and the other parties thereto; (iii) the
terms of the Offered Warrants and of their issuance and sale have
been duly established in conformity with the Warrant Agreement so
as not to violate any applicable law or the Charter Documents, or
result in a default under or breach of any agreement or instrument
binding upon the Company, and so as to comply with any requirement
or restriction imposed by any court or governmental body having
jurisdiction over the Company and any applicable Warrant Agent; and
(iv) the Offered Warrants have been duly executed and delivered by
the Company and, if applicable, authenticated by the applicable
Warrant Agent pursuant to the Warrant Agreement, duly issued and
sold, and delivered upon payment of the agreed-upon consideration
therefor in the form to be filed on a Current Report on Form 8-K or
other applicable periodic report in the manner contemplated in the
Registration Statement or any Prospectus Supplement or term sheet
relating thereto, such Offered Warrants when issued and sold or
otherwise distributed in accordance with the Warrant Agreement and
the applicable Purchase Agreement, will be validly issued and will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their
terms.
The
matters expressed in this letter are subject to and qualified and
limited by (i) the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, arrangement, moratorium or other
similar laws now or hereafter in effect relating to or affecting
creditors’ rights generally; (ii) the effects of general
equitable principles, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, and the
possible unavailability of specific performance or injunctive
relief, whether enforcement is considered in a proceeding in equity
or law; (iii) the discretion of the court before which any
proceeding for enforcement may be brought; and (iv) the
unenforceability under certain circumstances under law or court
decisions of provisions providing for the indemnification of or
contribution to a party with respect to a liability where such
indemnification or contribution is contrary to the public policy.
We express no opinion as to the sufficiency of any consideration to
be paid for any Securities.
We are
qualified to practice law in the Province of British Columbia, and
we do not purport to be experts on the law of any other
jurisdiction other than the Province of British Columbia and the
federal laws of Canada applicable therein. We do not express any
opinion herein concerning any law other than the laws of the
Province of British Columbia and the federal laws of Canada
applicable therein. We express no opinion and make no
representation with respect to the law of any other jurisdiction.
This opinion is expressed as of the date hereof unless otherwise
expressly stated, and we disclaim any undertaking to advise you of
any subsequent changes of the facts stated or assumed herein or any
subsequent changes in applicable law.
We hereby consent to the filing of
this opinion as an exhibit to the Registration Statement and the
use of our firm name where it appears in the Prospectus forming
part of the Registration Statement under the caption “Legal
Matters”. In giving this consent, we do not admit that we
included in the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations promulgated
thereunder.
Yours
truly,
FASKEN MARTINEAU DuMOULIN LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We
consent to the incorporation by reference in this Registration
Statement on Form S-3 of Edesa Biotech, Inc. (formerly known as
Stellar Biotechnologies, Inc.) of our report dated March 26, 2019
relating to the financial statements of Edesa Biotech Inc. for the
years ended December 31, 2018 and 2017, which report appears in the
Current Report on Form 8-K/A of Edesa Biotech, Inc., as filed with the
Securities Exchange Commission on August 14, 2019, and to the
reference to our firm under the caption “Experts” in
the Prospectus, which is part of this Registration
Statement.
/s/ MNP LLP
Chartered Professional Accountants
Licensed Public Accountants
Toronto, Canada
August 30, 2019
EXHIBIT
23.2
We
consent to the incorporation by reference in this Registration
Statement on Form S-3 of Edesa Biotech, Inc. (formerly known as
Stellar Biotechnologies, Inc.) of our report dated November 30,
2018, relating to the consolidated financial statements of Stellar
Biotechnologies, Inc., which report appears in the Annual Report on
Form 10-K of Edesa Biotech, Inc. for the year ended September 30,
2018, and to the reference to our firm under the caption
“Experts” in the Prospectus, which is part of this
Registration Statement.
/s/
MOSS ADAMS LLP
San
Diego, California
August
30, 2019
EXHIBIT 23.4
CONSENT
We
hereby consent to the use of our name in this registration
statement on Form S-3 of Edesa Biotech, Inc. and in the related
prospectus, under the caption “Legal Matters.” In
giving this consent, we do not admit that we are experts within the
meaning of Section 11 of the Securities Act or within the
category of persons whose consent is required by Section 7 of
the Securities Act.
/s/
STUBBS ALDERTON & MARKILES, LLP
August
30, 2019