Per Common Share or Pre-
Funded Warrant and
Common Warrant
|
Total
|
|||||||
Offering Price
|
|
$1.00
|
|
$18,000,000
|
||||
Placement Agent Fees(1)
|
|
$0.07
|
|
$1,260,000
|
||||
Proceeds, before expenses, to us(2)
|
|
$0.93
|
|
16,740,000
|
(1)
|
We will pay the Placement Agent a cash fee equal to 7% of the aggregate gross proceeds. We have also agreed to reimburse the Placement Agent for certain of its expenses and issue to the
Placement Agent the Placement Agent Warrants, as described under the “Plan of Distribution” on page S-34 of this Prospectus Supplement.
|
|||||||
(2)
|
The amount of the offering proceeds to us presented in this table does not give effect to any exercise of the Common Warrants or Placement Agent Warrants.
|
TABLE OF CONTENTS
|
Page
|
|
|
Prospectus Supplement
|
|
ABOUT THIS PROSPECTUS SUPPLEMENT
|
S-5
|
|
|
WHERE YOU CAN FIND MORE INFORMATION
|
S-6
|
|
|
CAUTIONARY NOTE REGARDING FORWARD-LOOKING INFORMATION
|
S-6
|
|
|
DOCUMENTS INCORPORATED BY REFERENCE
|
S-9
|
|
|
RISK FACTORS
|
S-15
|
USE OF PROCEEDS
|
S-20
|
DESCRIPTION OF THE SECURITIES
|
S-20
|
|
|
COMMON SHARES
|
S-20
|
COMMON WARRANTS
|
S-21
|
PRE-FUNDED WARRANTS
|
S-22
|
PLACEMENT AGENT WARRANTS
|
S-23
|
CERTAIN UNITED STATES FEDERAL TAX CONSIDERATIONS
|
S-24
|
|
|
PLAN OF DISTRIBUTION
|
S-34
|
|
|
DILUTION
|
S-35
|
|
|
EXPENSES OF ISSUANCE AND DISTRIBUTION
|
S-36
|
LEGAL MATTERS
|
S-36
|
EXPERTS
|
S-36
|
CAUTIONARY NOTE REGARDING FORWARD-LOOKING INFORMATION
|
6
|
|
|
PUBLICALLY AVAILABLE INFORMATION ON TITAN
|
8
|
|
|
DOCUMENTS INCORPORATED BY REFERENCE
|
9
|
|
|
RISK FACTORS
|
10
|
|
|
MATERIAL CHANGES
|
10
|
|
|
CONSOLIDATED CAPITALIZATION
|
11
|
|
|
DESCRIPTION OF SHARE CAPITAL
|
11
|
MEMORANDUM AND ARTICLES OF ASSOCIATION
|
14
|
USE OF PROCEEDS
|
22
|
|
|
PLAN OF DISTRIBUTION
|
23
|
|
|
DESCRIPTION OF SECURITIES
|
24
|
|
|
TRADING
|
25
|
DILUTION
|
25
|
EXPENSES OF ISSUANCE AND DISTRIBUTION
|
26
|
|
|
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
|
26
|
MATERIAL CONTRACTS
|
26
|
|
|
EXCHANGE CONTROLS
|
26
|
|
|
CERTAIN INCOME TAX CONSIDERATIONS
|
27
|
|
|
DOCUMENTS ON DISPLAY
|
27
|
EXPERTS
|
27
|
LEGAL MATTERS
|
27
|
|
|
INTEREST OF EXPERTS AND COUNSEL
|
27
|
● |
our commitment to developing the robotic surgical system with the objective of substantially improving upon minimally invasive surgery (“MIS”);
|
● |
our intent to initially pursue gynecologic surgical indications for use of the single-port robotic surgical system;
|
● |
the development of the single-port robotic surgical system patient cart to deliver multi-articulating instruments and 3D high definition vision
system into the patient’s abdominal body cavity through a single access port;
|
● |
our technology and research and development objectives, including achieving development milestones, estimated costs, schedules for completion and probability of success;
|
● |
our intention with respect to updating any forward-looking statement after the date on which such statement is made or to reflect the occurrence of unanticipated events;
|
● |
our expectation that the U.S. Food and Drug Administration (“FDA”) will grant Investigational Device Exemption (“IDE”) approval and that Titan will then proceed to collect suitable confirmatory human data to support its 510(k) application to the FDA, and Technical File for the CE mark;
|
● |
our expectation that Titan can in a timely manner produce the appropriate preclinical and clinical data required for its 510(k) application to the FDA, and Technical File for the CE
mark;
|
● |
our expectation with respect to launching a commercially viable product in certain jurisdictions;
|
● |
our intentions to develop a robust training curriculum and post-training assessment tools that will be effective in ensuring that surgeons are appropriately trained to safely operate
our single-port robotic surgical system;
|
● |
our plans to develop and commercialize our single-port robotic surgical system and the estimated incremental costs (including the status, cost and timing of achieving the development
milestones disclosed herein);
|
● |
our plans to design, create and refine software for production system functionality of our single-port robotic surgical system and the estimated incremental costs (including the
status, cost and timing of achieving the development milestones disclosed herein);
|
● |
our intentions with respect to initiating marketing activities following receipt of the applicable regulatory approvals;
|
● |
our expectations for the surgical indications for use, and the anticipated benefits of, our single-port robotic surgical system;
|
● |
our intention to continue to assess specialized skill and knowledge requirements and the recruitment of qualified personnel and partners;
|
● |
our belief that the specialized components, parts and know-how necessary for the manufacture of our single-port robotic surgical system, suitable for clinical use, will be available in
the marketplace;
|
● |
our belief that existing and planned systems will be suitable to support activities related to filing applications for regulatory clearance;
|
● |
our continuing efforts to secure our intellectual property and expand our patent portfolio by filing patent applications as we progress in the development of our robotic surgical
technologies and potentially by licensing suitable technologies;
|
● |
our intent of seeking of licensing opportunities to expand our intellectual property portfolio;
|
● |
our intended use of proceeds of any offering of our securities;
|
● |
our expectation that the proceeds from the Offering will be sufficient to fund the work described in this Prospectus Supplement;
|
● |
our intention with respect to not paying any cash dividends on Shares in the foreseeable future;
|
● |
our intention to retain future earnings, if any, to finance expansion and growth;
|
● |
projected competitive conditions with respect to our products;
|
● |
the estimated size of the market for robotic surgical systems for abdominal surgery and in particular our single-port robotic surgical system;
|
● |
our plan to focus on the development of our single-port robotic surgical system at estimated incremental costs and according to its projected
timeline;
|
● |
the potential market for the Securities issuable under the Offering;
|
● |
subject to securing sufficient funding, our plan to pay our Primary Supplier (as defined herein) in full satisfaction of the outstanding payables by the end of the current calendar
year; and
|
● |
our intended use of the proceeds from the Corporation Loan Facility (as defined herein).
|
● |
risks related to our ability to carry on our business as it is now conducted and as we propose to conduct it with the financial resources currently available to us;
|
● |
risks relating to our ability to obtain additional financing;
|
● |
risks relating to our history of losses;
|
● |
risks and uncertainties relating to the generating of sustainable earnings from our contemplated products;
|
● |
risks related to loss of key members of management and/or ability to attract and retain qualified employees;
|
● |
risks related to dependence on third party contract development and manufacturing service providers;
|
● |
risks related to dependence on third parties retained to conduct preclinical studies;
|
● |
risks related to increased competition in the robotic surgical market;
|
● |
risks related to licensing and/or infringement of intellectual property rights of third parties;
|
● |
risks related to our ability to resolve the outstanding Civil Claim (as defined below);
|
● |
risks related to the price and volume volatility of the Shares;
|
● |
risks related to governmental regulations and approval processes of Food and Drug Administration of the United States Department of Health and Human Services, including possible
changes thereto;
|
● |
risks related to acceptance of our technology;
|
● |
risks related to the ability to maintain the listing of the Shares on the TSX and Nasdaq;
|
● |
risks related to unforeseen global instability from an outbreak or pandemic of contagious disease, such as the novel coronavirus (COVID-19) (the “coronavirus”);
|
● |
risks related to our working capital deficiency;
|
● |
risks related to a senior secured loan from a global medical technology company; and
|
● |
risks related to the Medtronic Agreements.
|
(a) |
Our Form 20-F Annual Report dated March 30, 2020 for the year ended December 31, 2019 filed with the SEC on April 2, 2020, as amended by Amendment #1 filed with the SEC on April 2,
2020 (as so amended, the “20-F”);
|
(b) |
Our Material Change Report dated April 29, 2020 which was included as Exhibit 99.1 to the Form 6-K filed with the SEC on April 29, 2020;
|
(c) |
Our Material Change Report dated April 30, 2020 which was included as Exhibit 99.1 to the Form 6-K filed with the SEC on April 30, 2020;
|
(d) |
Our Material Change Report dated May 13, 2020 which was included as Exhibit 99.1 to the Form 6-K filed with the SEC on June 9, 2020;
|
(e) |
Our Material Change Report dated May 27, 2020 which was included as Exhibit 99.1 to the Form 6-K filed with the SEC on June 3, 2020;
|
(f) |
Our Material Change Report dated June 4, 2020 which was included as Exhibit 99.1 to the Form 6-K filed with the SEC on June 4, 2020;
|
(g) |
Our Unaudited Condensed Interim Financial Statements for the three month period ended March 31, 2020, which were included as Exhibit 99.2 to the Form 6-K filed with the SEC on May 14,
2020, and Amendment No. 1 to Form 6-K filed with the SEC on May 15, 2020;
|
(h) |
Our Management Discussion and Analysis for the three month period ended March 31, 2020, which was included as Exhibit 99.3 to the Form 6-K filed with the SEC on May 14, 2020, and
Amendment No. 1 to Form 6-K filed with the SEC on May 15, 2020; and
|
(i) |
Our management information circular for the annual general meeting of shareholders held on May 29, 2019, which was included as Exhibit 99.1 to the Form 6-K filed with the SEC on May
30, 2019.
|
Milestone (1)
|
Deadline (2)
|
Payment (US$)(3)
|
|||
Milestone 1
|
Four (4) months from Development Start Date (4)
|
$
|
10,000,000
|
||
Milestone 2 (5)
|
Four (4) months from Development Start Date
|
-
|
|||
Milestone 3
|
Six (6) months from the later of (a) receipt by us of Payment for Milestone 1, (b) receipt by us from Medtronic of Medtronic deliverables required for Milestone 3,
and (c) receipt by us from Medtronic of confirmation of certain due diligence in respect of our deliverables for Milestone 1
|
$
|
10,000,000
|
||
Milestone 4
|
Four (4) months from the later of (a) receipt by us of Payment for Milestone 3, (b) receipt by us of Medtronic deliverables for Milestone 4, and (c) receipt by us
from Medtronic of confirmation of certain due diligence in respect of our deliverables for Milestone 3
|
$
|
11,000,000
|
(6),(7)
|
1. |
Milestone 1, Milestone 3 and Milestone 4 are each defined in the Development Agreement and consist of the completion of the development of certain robotic assisted
surgical technologies as described in the Development Agreement.
|
2. |
All as further described and qualified in the Development Agreement.
|
3. |
Each payment is conditional upon the corresponding milestone being completed on a timely basis.
|
4. |
“Development Start Date” has the meaning ascribed to it in the Development Agreement.
|
5. |
Milestone 2 is a non-technology milestone defined as our raising at least U.S. $18,000,000 of capital between the effective date of the Development Agreement and the
date that is four months from the Development Start Date.
|
6. |
The amount of the payment will be the sum of U.S. $10,000,000 and the amount of certain legal, transaction and intellectual property related expenses to be paid to us
up to a maximum of U.S. $1,000,000 pursuant to the Development Agreement and License Agreement.
|
7. |
The balance outstanding under the Medtronic Loan (described below) will be offset against the payment for Milestone 4.
|
Securities Offered
|
|
6,500,000 Common Shares, 11,500,000 Pre-Funded Warrants, and Common Warrants to purchase 9,000,000 Common Shares.
|
|
|
|
Description of Common Warrants
|
Each Warrant is exercisable to purchase one Common Share at an exercise price of $1.00 per Warrant Share for a period of 4 years following the Closing Date.
|
|
Description of Pre-Funded Warrants
|
If the issuance of Common Shares to a purchaser in the Offering would result in such purchaser, together with its affiliates and certain related parties,
beneficially owning more than 4.99% (or, at the election of the purchaser, 9.99%) of our Common Shares following the consummation of the Offering, then such purchaser may purchase, if they so choose, in lieu of the Common Shares
that would result in such excess ownership, a Pre-Funded Warrant to purchase Pre-Funded Warrant Shares and one-half Common Warrant. Each Pre-Funded Warrant will have an exercise price of $0.0001 per Pre-Funded Warrant Share, will be
exercisable upon issuance and will expire when exercised in full.
|
|
Common Shares to be issued under the Offering
|
|
18,000,000 Common Shares assuming no exercise of the Common Warrants issued in the Offering and the full exercise of the Pre-Funded Warrants issued in the
Offering. The total Common Shares to be issued and outstanding after completion of the Offering will be 78,831,381.(1)
|
Manner of offering
|
See “Plan of Distribution.”
|
|
Use of proceeds
|
|
We intend to use the net proceeds from the sale of the Securities under the Offering for general corporate purposes including: resuming the development of our
single-port robotic surgical system, instruments and accessories; funding working capital (including the reduction of outstanding payables); and capital expenditures.
|
|
|
|
Trading symbols
|
|
Our Common Shares are listed on the TSX under the symbol “TMD” and the Nasdaq under the symbol “TMDI”.
|
|
|
|
Risk Factors
|
|
Investing in our Common Shares involves a high degree of risk. See “Risk Factors” beginning on page S-15 of this Prospectus Supplement for a discussion of
factors you should consider carefully when making an investment decision.
|
(1)
|
The number of Common Shares to be outstanding immediately after completion of the Offering as shown above is based on 60,831,381 Common Shares outstanding as of
June 8, 2020 and assumes the full exercise of the Pre-Funded Warrants. Unless otherwise indicated, the number of Common Shares presented in this Prospectus Supplement excludes:
|
●
|
1,272,931 Common Shares issuable upon the exercise of 886,144 Canadian dollar denominated options with a weighted average exercise price of CDN $5.74 and 386,787
US dollar denominated options with a weighted average exercise price of $3.19 as at June 4, 2020; and
|
|
|
●
|
23,960,663 Common Shares issuable upon the exercise of warrants having a weighted-average exercise price of $5.71 per warrant as at June 8, 2020.
Unless otherwise stated, all information in this Prospectus Supplement assumes no exercise of the Common Warrants or the Placement Agent Warrants.
|
|
●
|
actual or anticipated fluctuations in our operating results or future prospects;
|
|
|
|
|
●
|
public reaction to our press releases, our other public announcements and our filings with the SEC;
|
|
|
|
|
●
|
strategic actions by our management or by our competitors;
|
|
|
|
|
●
|
changes in financial markets or general economic conditions;
|
|
|
|
|
●
|
our ability to raise additional capital as needed;
|
|
●
|
developments regarding our patents or proprietary rights;
|
|
|
|
|
●
|
changes in stock market analyst recommendations or earnings estimates regarding our Common Shares, other comparable companies or our industry generally; and
|
●
|
continuing volatility in the equity markets in general, and the price of our Common Shares, due to the effects and uncertainty of the coronavirus pandemic.
|
● |
The exercise price of the Placement Agent Warrants is $1.25 per share, which represents 125% of the offering price per Common Share and one-half Common Warrant combination in this
Offering;
|
● |
The Placement Agent Warrants may be exercised until the fourth anniversary from the date of this Offering;
|
● |
The Beneficial Ownership Limitation is 4.99%; and
|
● |
The Placement Agent Warrants will not be transferable for 180 days from the date of effectiveness or the commencement of sales of this Offering, except in certain circumstances
described in the Placement Agent Warrants. Following such period, subject to applicable laws, the Placement Agent Warrants may be transferred at the option of the holder upon surrender of a Placement Agent Warrant to us together
with the appropriate instruments of transfer.
|
●
|
a citizen or individual resident of the United States;
|
●
|
a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) organized under the laws of the United States, any state thereof or the
District of Columbia;
|
●
|
an estate whose income is subject to U.S. federal income taxation regardless of its source; or
|
●
|
a trust that (1) is subject to the primary supervision of a court within the United States and the control of one or more U.S. persons for all substantial decisions or
(2) has a valid election in effect under applicable Treasury Regulations to be treated as a U.S. person.
|
● |
may not engage in any stabilization activity in connection with our securities; and
|
● |
may not bid for or purchase any of our securities or attempt to induce any person to purchase any of our securities, other than as permitted under the Exchange Act, until it
has completed its participation in the distribution.
|
Legal fees and expenses
|
$
|
150,000
|
||
Accountants’ fees and expenses
|
18,000
|
|||
Transfer agent fees and expenses
|
65,000
|
|||
Miscellaneous
|
3,100
|
|||
Total
|
$
|
236,100
|
PROSPECTUS
|
|
TABLE OF CONTENTS
|
Page
|
|
|
CAUTIONARY NOTE REGARDING FORWARD-LOOKING INFORMATION
|
6
|
|
|
PUBLICALLY AVAILABLE INFORMATION ON TITAN
|
8
|
|
|
DOCUMENTS INCORPORATED BY REFERENCE
|
9
|
|
|
RISK FACTORS
|
10
|
|
|
MATERIAL CHANGES
|
10
|
|
|
CONSOLIDATED CAPITALIZATION
|
11
|
|
|
DESCRIPTION OF SHARE CAPITAL
|
11
|
|
|
MEMORANDUM AND ARTICLES OF ASSOCIATION
|
14
|
USE OF PROCEEDS
|
22
|
|
|
PLAN OF DISTRIBUTION
|
23
|
|
|
DESCRIPTION OF SECURITIES
|
24
|
|
|
TRADING
|
25
|
DILUTION
|
25
|
EXPENSES OF ISSUANCE AND DISTRIBUTION
|
26
|
|
|
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
|
26
|
MATERIAL CONTRACTS
|
26
|
|
|
EXCHANGE CONTROLS
|
26
|
|
|
CERTAIN INCOME TAX CONSIDERATIONS
|
27
|
|
|
DOCUMENTS ON DISPLAY
|
27
|
EXPERTS
|
27
|
LEGAL MATTERS
|
27
|
|
|
INTEREST OF EXPERTS AND COUNSEL
|
27
|
●
|
our technology and research and development objectives, including development milestones, and achieving design freeze, estimated
costs, schedules for completion and probability of success;
|
●
|
our intention with respect to updating any forward-looking statement after the date on which such statement is made or to
reflect the occurrence of unanticipated events;
|
●
|
expectation with respect to planned acute and chronic animal studies and human cadaver studies to be conducted under Good
Laboratory Practices and anticipation of filing and Investigational Device Exemption (“IDE”) with the U.S. Food and Drug Administration (“FDA”);
|
●
|
the Company’s expectation that the FDA will grant IDE approval and that the Company will then proceed to collect suitable confirmatory human data to support
its 510(k) application to the FDA, and Technical File for the CE Mark;
|
●
|
expectation that it can in a timely manner produce the appropriate preclinical and clinical data required for its 510(k) application to the FDA, and Technical File for the CE Mark;
|
●
|
our expectation with respect to launching a commercial product in certain jurisdictions;
|
●
|
our intentions to develop a robust training curriculum and post-training assessment tools intentions to develop a robust training curriculum and post-training
assessment tools that will be effective in ensuring that surgeons are appropriately trained to safely operate the Company’s single-port robotic surgical system;
|
●
|
our plans to develop and commercialize our single-port robotic surgical system and the estimated incremental costs
(including the status, cost and timing of achieving the development milestones disclosed herein);
|
●
|
our plans to design, create and refine software for production system functionality of our single-port robotic surgical system and the
estimated incremental costs (including the status, cost and timing of achieving the development milestones disclosed herein);
|
●
|
our intentions to complete formative and summative human factors studies;
|
●
|
our intentions with respect to initiating marketing activities following receipt of the applicable regulatory approvals;
|
●
|
our expectation for the surgical indications for, and the benefits of, our single-port robotic surgical system;
|
●
|
our intention to continue to assess specialized skill and knowledge requirements and the recruitment of qualified personnel and
partners;
|
●
|
our belief that the specialized components, parts and know-how necessary for the manufacture of the single-port robotic
surgical system, suitable for clinical use, will be available in the marketplace;
|
●
|
our belief that existing and planned systems will be suitable to support human factors studies, animal and human cadaver
studies, human confirmatory studies, and 2019 activities related to filing its applications for regulatory clearance;
|
●
|
our intention of filing and prosecution of patent applications to expand the Company’s intellectual property portfolio as technologies are developed or
refined;
|
●
|
our seeking of licensing opportunities to expand our intellectual property portfolio;
|
●
|
our intended use of proceeds of any offering of our securities;
|
●
|
our intention with respect to not paying any cash dividends on Common Shares in the foreseeable future;
|
●
|
our intention to retain future earnings, if any, to finance expansion and growth;
|
●
|
projected competitive conditions with respect to our products;
|
●
|
the estimated size of the market for robotic surgical systems for abdominal surgery; and
|
●
|
the potential market for the securities issuable under the Offering.
|
● |
risks relating to our ability to obtain additional financing;
|
● |
risks relating to our history of losses;
|
● |
risks and uncertainties relating to the generating sustainable earnings from our contemplated products;
|
● |
risks related to loss of key members of management and/or ability to attract and retain qualified employees;
|
● |
risks related to dependence on third parties retained to conduct preclinical studies;
|
|
|
● |
risks related to increased competition in the robotic surgical market;
|
● |
risks related to licensing and/or infringement of intellectual property rights of third parties;
|
● |
risks related to the price and volume volatility of the Common Shares;
|
● |
risks related to governmental regulations and approval processes of Food and Drug Administration of the United States Department of Health and Human Services, including possible changes thereto;
|
● |
risks related to acceptance of our technology; and
|
● |
risks related to the ability to maintain the listing of the Common Shares on the TSX and Nasdaq.
|
(a)
|
Our Form 40-F Annual Report dated March 29, 2019 for the year ended December 31, 2018 (the “40-F”) filed with the SEC on March 29, 2019;
|
(b)
|
Our Material Change Report dated March 6, 2019 which was included as Exhibit 99.1 to the Form 6-K filed with the SEC on March 8, 2019;
|
(c)
|
Our Material Change Report dated March 28, 2019 which was included as Exhibit 99.4 to the Form 6-K filed with the SEC on May 31, 2019;
|
(d)
|
Our Unaudited Condensed Interim Financial Statements for the three-month period ended March 31, 2019, which were included as Exhibit 99.2 to the Form 6-K filed with the SEC on May 15, 2019;
|
(e)
|
Our Management Discussion and Analysis for the three-month period ended March 31, 2019 (the “March 2019 MD&A”), which was included as Exhibit 99.3 to the Form 6-K
filed with the SEC on May 15, 2019;
|
(f)
|
Our management information circular for the annual general meeting of shareholders held on May 29, 2019 which was included as Exhibit 99.6 to the Form 6-K filed with the SEC on May 31, 2019; and
|
As at March 31, 2019
|
||||
Liabilities
|
||||
Accounts payable and accrued liabilities
|
$
|
6,495,644
|
||
Other current liabilities – with warrant liability
|
33,774,970
|
|||
Total current liabilities
|
40,270,614
|
|||
Loan payable
|
0
|
|||
Long-term liability
|
0
|
|||
Total non-current liabilities
|
0
|
|||
Equity
|
||||
Common shares
|
189,726,067
|
|||
Warrants
|
0
|
|||
Contributed surplus
|
6,903,766
|
|||
Deficit
|
(201,220,574
|
)
|
||
Total equity/(deficit)
|
(4,590,741
|
)
|
||
Total liabilities and equity
|
35,679,873
|
Common Shares
|
●
|
borrow money upon our credit;
|
●
|
issue sell or pledge debt obligations (including bonds, debentures, notes or other similar obligations, secured or unsecured) of the Company; and
|
●
|
charge, mortgage, hypothecate, pledge all or any of the currently owned or subsequently acquired real or personal, movable or immovable, property of the
Company, including book debts, rights, powers, franchises and undertakings, to secure any debt obligations or money borrowed, or other debt or liability of the Company.
|
Board of Director Quorum and Vote Requirements
|
||
Delaware
|
Ontario
|
|
Under the DGCL, a majority of the total number of directors shall constitute a quorum for the transaction of business unless the certificate or bylaws require a greater number. The bylaws may lower the
number required for a quorum to one-third the number of directors, but no less.
|
Under the OBCA, subject to an Ontario corporation’s articles or bylaws, a majority of the number of directors or minimum number of directors required by the articles constitutes a quorum at any meeting of
directors. Where a corporation has fewer than three directors, all directors must be present at any meeting to constitute a quorum.
|
|
Under the DGCL, the board of directors may take action by the majority vote of the directors present at a meeting at which a quorum is present unless the certificate of incorporation or bylaws require a
greater vote.
|
Under the OBCA, subject to an Ontario corporation’s articles or bylaws, where there is a vacancy or vacancies in the board of directors, the remaining directors may exercise all the powers of the board so
long as a quorum of the board remains in office.
|
|
Transactions with Directors and Officers
|
||
Delaware
|
Ontario
|
|
The DGCL generally provides that no transaction between a corporation and one or more of its directors or officers, or between a corporation and any other corporation or other organization in which one or
more of its directors or officers, are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the
board or committee which authorizes the transaction, or solely because any such director’s or officer’s votes are counted for such purpose, if (i) the material facts as to the director’s or officer’s interest and as to the transaction are
known to the board of directors or the committee, and the board or committee in good faith authorizes the transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less
than a quorum (ii) the material facts as to the director’s or officer’s interest and as to the transaction are disclosed or are known to the stockholders entitled to vote thereon, and the transaction is specifically approved in good faith
by vote of the stockholders; or (iii) the transaction is fair as to the Company as of the time it is authorized, approved or ratified, by the board of directors, a committee or the stockholders.
|
The OBCA requires that a director or officer of a corporation who is: (i) a party to a material contract or transaction or proposed material contract or transaction with the Company; or (ii) a director or
an officer of, or has a material interest in, any person who is a party to a material contract to or transaction or proposed material contract or transaction with the Company shall disclose in writing to the Company or request to have
entered in the minutes of meetings of directors the nature and extent of his or her interest. An interested director is prohibited from attending the part of the meeting during which the contract or transaction is discussed and is
prohibited from voting on a resolution to approve the contract or transaction except in specific circumstances, such as a contract or transaction relating primarily to his or her remuneration as a director, a contract or transaction for
indemnification or liability insurance of the director, or a contract or transaction with an affiliate of the Company. If a director or officer has disclosed his or her interest in accordance with the OBCA and the contract or transaction
was reasonable and fair to the Company at the time it was approved, the director or officer is not accountable to the Company or its shareholders for any profit or gain realized from the contract or transaction and the contract or
transaction is neither void nor voidable by reason only of the interest of the director or officer or that the director is present at or is counted to determine the presence of a quorum at the meeting of directors that authorized the
contract or transaction.
|
|
The OBCA further provides that even if a director or officer does not disclose his or her interest in accordance with the OBCA, or (in the case of a director) votes in respect of a resolution on a contract
or transaction in which he or she is interested contrary to the OBCA, if the director or officer acted honestly and in good faith and the contract or transaction was reasonable and fair to the Company at the time it was approved, the
director or officer is not accountable to the Company or to its shareholders for any profit or gain realized from the contract or transaction by reason only of his or her holding the office of the director or officer and the contract or
transaction is not by reason only of the director’s or officer’s interest therein void or voidable, if the contract or transaction has been confirmed or approved by the shareholders by special resolution, on the basis of disclosure in
reasonable detail of the nature and extent of the director’s or officer’s interest in the notice of meeting or management information circular.
|
Call and Notice of Stockholder Meetings
|
||
Delaware
|
Ontario
|
|
Under the DGCL, an annual or special stockholder meeting is held on such date, at such time and at such place as may be designated by the board of directors or any other person authorized to call such
meeting under the Company’s certificate of incorporation or bylaws. If an annual meeting for election of directors is not held on the date designated or an action by written consent to elect directors in lieu of an annual meeting has not
been taken within 30 days after the date designated for the annual meeting, or if no date has been designated, for a period of 13 months after the later of the last annual meeting or the last action by written consent to elect directors
in lieu of an annual meeting, the Delaware Court of Chancery may summarily order a meeting to be held upon the application of any stockholder or director.
|
Under the OBCA, the directors of a corporation are required to call an annual meeting of shareholders no later than fifteen months after holding the last preceding annual meeting. Under the OBCA, the
directors of a corporation may call a special meeting at any time. In addition, holders of not less than five percent of the issued shares of a corporation that carry the right to vote at a meeting sought to be held may requisition the
directors to call a meeting of shareholders.
|
Delaware
|
Ontario
|
|
Under the DGCL, a majority of the stockholders of a corporation may act by written consent without a meeting unless such action is prohibited by the Company’s certificate of incorporation.
|
Under the OBCA, a written resolution signed by all the shareholders of a corporation who would have been entitled to vote on the resolution at a meeting is effective to approve the resolution.
|
Stockholder Nominations and Proposals
|
||
Delaware
|
Ontario
|
|
Not applicable.
|
Under the OBCA, a shareholder entitled to vote at a shareholders’ meeting may submit a shareholder proposal relating to matters which the shareholder wishes to propose and discuss at a shareholders’ meeting
and, subject to such shareholder’s compliance with the prescribed time periods and other requirements of the OBCA pertaining to shareholder proposals, the Company is required to include such proposal in the information circular pertaining
to any meeting at which it solicits proxies, subject to certain exceptions. Notice of such a proposal must be provided to the Company at least 60 days before the anniversary date of the last annual shareholders’ meeting, or at least 60
days before any other meeting at which the matter is proposed to be raised.
|
|
In addition, the OBCA requires that any shareholder proposal that includes nominations for the election of directors must be signed by one or more holders of shares representing in the aggregate not less
than five per cent of the shares or five per cent of the shares of a class or series of shares of the Company entitled to vote at the meeting to which the proposal is to be presented.
|
|
||
Delaware
|
Ontario
|
|
Under the DGCL, quorum for a stock corporation is a majority of the shares entitled to vote at the meeting unless the certificate of incorporation or bylaws specify a different quorum, but in no event may a
quorum be less than one-third of the shares entitled to vote. Unless the DGCL, certificate of incorporation or bylaws provide for a greater vote, generally the required vote under the DGCL is a majority of the shares present in person or
represented by proxy, except for the election of directors which requires a plurality of the votes cast.
|
Under the OBCA, unless the bylaws otherwise provide, the holders of a majority of the shares of an OBCA corporation entitled to vote at a meeting of shareholders, whether present in person or represented by
proxy, constitute a quorum.
|
|
||
Delaware
|
Ontario
|
|
Amendment of Certificate of Incorporation. Generally, under the DGCL, the affirmative vote of the holders of a majority of the outstanding stock entitled to vote is
required to approve a proposed amendment to the certificate of incorporation, following the adoption of the amendment by the board of directors of the Company, provided that the certificate of incorporation may provide for a greater vote.
Under the DGCL, holders of outstanding shares of a class or series are entitled to vote separately on an amendment to the certificate of incorporation if the amendment would have certain consequences, including changes that adversely
affect the rights and preferences of such class or series.
|
Amendment of Articles. Under the OBCA, amendments to the articles of incorporation generally require the approval of not less than two-thirds of the votes cast by
shareholders entitled to vote on the resolution.
|
|
Amendment of Bylaws. Under the DGCL, after a corporation has received any payment for any of its stock, the power to adopt, amend or repeal bylaws shall be vested in
the stockholders entitled to vote; provided, however, that any corporation nay, in its certificate of incorporation, provide that bylaws may be adopted, amended or repealed by the board of directors. The fact that such power has been
conferred upon the board of directors shall not divest the stockholders of the power nor limit their power to adopt, amend or repeal the bylaws.
|
Amendment of Bylaws. Under the OBCA, the directors may, by resolution, make, amend or repeal any bylaws that regulate the business or affairs of a corporation and
they must submit the bylaw, amendment or repeal to the shareholders at the next meeting of shareholders, and the shareholders may confirm, reject or amend the bylaw, amendment or repeal.
|
|
Votes on Mergers, Consolidations and Sales of Assets
|
||
Delaware
|
Ontario
|
|
The DGCL provides that, unless otherwise provided in the certificate of incorporation or bylaws, the adoption of a merger agreement requires the approval of a majority of the outstanding stock of the
Company entitled to vote thereon.
|
Under the OBCA, the approval of at least two-thirds of votes cast by shareholders entitled to vote on the resolution is required for extraordinary corporate actions. Extraordinary corporate actions include:
amalgamations; continuances; sales, leases or exchanges of all or substantially all of the property of a corporation; liquidations and dissolutions.
|
|
Dissenter’s Rights of Appraisal
|
||
Delaware
|
Ontario
|
|
Under the DGCL, a stockholder of a Delaware corporation generally has the right to dissent flume, merger or consolidation in which the Delaware corporation is participating, subject to specified procedural
requirements, including that such dissenting stockholder does not vote in favor of the merger or consolidation. However, the DGCL does not confer appraisal rights, in certain circumstances, including if the dissenting stockholder owns
shares traded on a national securities exchange and will receive publicly traded shares in the merger or consolidation. Under the DGCL, a stockholder asserting appraisal rights does not receive any payment for his or her shares until the
court determines the fair value or the parties otherwise agree to a value. The costs of the proceeding may be determined by the court and assessed against the parties as the court deems equitable under the circumstances.
|
Under the OBCA each of the following matters listed will entitle shareholders to exorcise rights of dissent and to be paid the fair value of their shares: (i) any amalgamation with another corporation
(other than with certain affiliated corporations); (ii) an amendment to the Company’s articles to add, change or remove any provisions restricting the issue, transfer or ownership of that class of shares; (iii) an amendment to the
Company’s articles to add, change or remove any restriction upon the business or businesses that the Company may carry on; (iv) a continuance under the laws of another jurisdiction; (v) a sale, lease or exchange of all or substantially
all the property of the Company other than in the ordinary course of business; and (vi) where a court order permits a shareholder to dissent in connection with an application to the court for an order approving an arrangement.
However, a shareholder is not entitled to dissent if an amendment to the articles is effected by a court order approving a reorganization or by a court order made in connection with an action for an
oppression remedy, unless otherwise authorized by the court. The OBCA provides these dissent rights for both listed and unlisted shares.
Under the OBCA, a shareholder may, in addition to exercising dissent rights, seek an oppression remedy for any act or omission of a corporation which is oppressive or unfairly prejudicial to or that
unfairly disregards a shareholder’s interests.
|
Change of Control Restrictions
|
||
Delaware
|
Ontario
|
|
Unless an issuer opts out of the provisions of Section 203 of the DGCL, Section 203 generally prohibits a public Delaware corporation from engaging in a “business combination” with a holder of 15% or more
of the Company’s voting stock (as defined in Section 203), referred to as an interested stockholder, for a period of three years after the date of the transaction in which the interested stockholder became an interested stockholder,
except as otherwise provided in Section 203. For these purposes, the term “business combination” includes mergers, assets sales and other similar transactions with an interested stockholder.
|
While the OBCA does not contain specific anti- takeover provisions with respect to “business combinations”, roles and policies of certain Canadian securities regulatory authorities, including Multilateral
Instrument 61-101 – Protection of Minority Security Holders in Special Transactions (“MI 61-101”), contain requirements in connection with, among other things, ‘related party transactions” and “business combinations”, including, among
other things, any transaction by which an issuer directly or indirectly engages in the following with a related party: acquires, sells, leases or transfers an asset, acquires the related party, acquires or issues treasury securities,
amends the terms of a security if the security is owned by the related party or assumes or becomes subject to a liability or takes certain other actions with respect to debt.
|
The term “related party” includes directors, senior officers and holders of more than 10% of the voting rights attached to all outstanding voting securities of the issuer or holders of a sufficient number
of any securities of the issuer to materially affect control of the issuer.
|
||
MI 61-101 requires, subject to certain exceptions, the preparation of a formal valuation relating to certain aspects of the transaction and more detailed disclosure in the proxy material sent to security
holders in connection with a related party transaction including related to the valuation. MI 61-101 also requires, subject to certain exceptions, that an issuer not engage in a related party transaction unless the shareholders of the
issuer, other than the related parties, approve the transaction by a simple majority of the votes cast.
|
●
|
Complete and document preclinical live animal (swine) and cadaver studies according to final protocols for FDA submittal;
|
●
|
Submit IDE application to FDA;
|
●
|
Obtain ISO 13485 Certification; and
|
●
|
Receive IDE approval from FDA.
|
●
|
Complete and document human confirmatory studies under IDE protocol for FDA submittal;
|
●
|
Submit Technical File to European Notified Body for CE Mark; and
|
●
|
Submit 510(k) application to FDA.
|
● |
the designation and aggregate number of Warrants;
|
● |
the price at which the Warrants will be offered;
|
● |
the currency or currencies in which the Warrants will be offered;
|
● |
the date on which the right to exercise the Warrants will commence and the date on which the right will expire;
|
● |
the designation, number and terms of the Shares that may be purchased upon exercise of the Warrants, and the procedures that will result in the adjustment of those numbers;
|
● |
the exercise price of the Warrants and any provisions for changes or adjustments in the exercise price;
|
● |
the designation and terms of the Securities, if any, with which the Warrants will be offered, and the number of Warrants that will be offered with each Security;
|
● |
if the Warrants are issued as a Unit with another Security, the date, if any, on and after which the Warrants and the other Security will be separately transferable;
|
● |
any minimum or maximum amount of Warrants that may be exercised at any one time;
|
● |
any terms, procedures and limitations relating to the transferability, exchange or exercise of the Warrants;
|
● |
whether the Warrants will be subject to redemption or call and, if so, the terms of such redemption or call provisions;
|
● |
as applicable, material United States and Canadian federal income tax consequences of owning the Warrants; and
|
● |
any other material terms or conditions of the Warrants.
|
● |
the designation and aggregate number of Units being offered;
|
● |
the price at which the Units will be offered;
|
● |
the designation, number and terms of the Securities comprising the Units and any agreement governing the Units;
|
● |
the date or dates, if any, on or after which the Securities comprising the Units will be transferable separately;
|
● |
whether we will apply to list the Units on any exchange;
|
● |
material income tax consequences of owning the Units, including how the purchase price paid for the Units will be allocated among the Securities comprising the Units; and
|
● |
any other material terms or conditions of the Units.
|
SEC registration fees
|
$
|
15,150
|
||
Nasdaq Listing fees
|
(1
|
)
|
||
TSX Listing fees
|
(1
|
)
|
||
Printing Expenses
|
(1
|
)
|
||
Legal fees and expenses
|
(1
|
)
|
||
Accountants’ fees and expenses
|
(1
|
)
|
||
Transfer agent fees and expenses
|
(1
|
)
|
||
Miscellaneous
|
(1
|
)
|
||
Total
|
$ |
(1)
|
To be provided by a Prospectus Supplement, or as an exhibit to a Report on Form 6-K that is incorporated by reference into this Prospectus.
|
|
Prospectus Supplement
|
|