UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form
6-K
REPORT
OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16 UNDER THE SECURITIES EXCHANGE ACT OF 1934
For
the month of December 2023
Commission
File Number: 001-41319
POET
TECHNOLOGIES INC.
(Translation of registrant’s name into English)
120
Eglinton Avenue East, Ste 1107
Toronto, Ontario, M4P 1E2, Canada
(Address of principal executive office)
Indicate
by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form
20-F ☒ Form 40-F ☐
Entry
into a Material Definitive Agreement
On
November 30, 2023, POET Technologies Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting
Agreement”) with Maxim Group LLC (the “Underwriter”) relating to the public offering in the United States of 1,600,000
common shares of the Company, without par value (the “Common Shares”), and warrants to purchase up to 1,600,000 Common Shares
(the “Warrants”) at a combined public offering price for each Common Share and accompanying Warrant of $0.90 (the “Offering”).
The Warrants have an exercise price of $1.12 per Common Share, subject to adjustment as set forth in the Underwriting Agreement, are
immediately exercisable and will expire five years from the date of issuance. Pursuant to the terms of the Underwriting Agreement, the
Company also granted the Underwriter an option, exercisable for 45 days after the date of the Underwriting Agreement, to purchase up
to an additional 240,000 Common Shares and/or Warrants to purchase up to an additional 240,000 Common Shares (the “Over-Allotment
Option”). On December 1, 2023, the Underwriter partially executed the Over-Allotment Option to purchase 186,000 additional Common
Shares and additional Warrants to purchase up to 186,000 Common Shares.
On
December 4, 2023, the Company closed the Offering and received gross proceeds of approximately $1.6 million before deducting underwriting
discounts and commissions and estimated offering expenses payable by the Company.
Maxim
Group LLC acted as sole book-running manager for the Offering.
Bennett
Jones LLP, Canadian counsel to the Company, and Katten Muchin Rosenman LLP, U.S. counsel to the Company, delivered opinions as to the
validity of the securities in the Offering, copies of which are attached to this report on Form 6-K as Exhibits 5.1 and 5.2, respectively,
and are incorporated by reference herein.
The
Common Shares and accompanying Warrants were offered pursuant to an effective Registration Statement on Form F-3 (File No. 333-273853),
including the base prospectus filed as part thereof (the “Base Prospectus”), which was filed with the Securities and Exchange
Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), on August 9, 2023
and declared effective by the SEC on August 18, 2023 (the “Registration Statement”), and a prospectus supplement to the Base
Prospectus, dated November 30, 2023, which was filed on December 1, 2023 with the SEC under the Securities Act.
The
foregoing descriptions of the Underwriting Agreement and the Warrants do not purport to be complete and are qualified in their entirety
by reference to the full text of the Underwriting Agreement and the Warrants, copies or forms of which are attached hereto as Exhibits
1.1 and 4.1, respectively, and which are incorporated by reference herein.
The
Underwriting Agreement has been included to provide investors and security holders with information regarding its terms. It is not intended
to provide any other factual information about the Company. The Underwriting Agreement contains customary representations, warranties
and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and the Underwriter, including
for liabilities under the Securities Act of 1933, as amended, other obligations of the parties and termination provisions. The representations,
warranties and covenants contained in the Underwriting Agreement were made only for purposes of such agreement and as of specific dates,
were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties,
including being qualified by confidential disclosures exchanged between the parties in connection with the execution of the Underwriting
Agreement. The representations and warranties may have been made for the purposes of allocating contractual risk between the parties
to the agreement instead of establishing these matters as facts and may be subject to standards of materiality applicable to the contracting
parties that differ from those applicable to investors. Investors are not third-party beneficiaries under the Underwriting Agreement
and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state
of facts or condition of the Company or any of its subsidiaries or affiliates. Moreover, information concerning the subject matter of
the representations and warranties may change after the date of the Underwriting Agreement, and this subsequent information may or may
not be fully reflected in the Company’s public disclosures.
Incorporation
by Reference
The
foregoing information contained in this Report on Form 6-K (this “Report”) and Exhibits 1.1, 4.1, 5.1, 5.2, 23.1 and 23.2
filed herewith are hereby incorporated by reference to the Registration Statement and are deemed to be a part thereof from the date on
which this Report is filed, to the extent not superseded by documents or reports subsequently filed with or furnished to the SEC.
Furnishing
of Press Release
On
December 4, 2023, the Company issued a press release announcing the closing of the Offering, a copy of which is attached hereto as Exhibit
99.1, which press release shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), or otherwise subject to the liabilities under that Section and shall not be deemed to be
incorporated by reference into any filing under the Securities Act or the Exchange Act, except as shall be expressly
set forth by specific reference in such a filing.
Exhibits
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
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POET
TECHNOLOGIES INC. |
| |
(Registrant) |
| |
|
| Date:
December 4, 2023 |
/s/
THOMAS MIKA |
| |
Thomas
Mika |
| |
Executive
Vice President and Chief Financial Officer |
Exhibit
1.1
1,600,000
COMMON SHARES AND
WARRANTS
EXERCISABLE FOR UP TO 1,600,000 WARRANT SHARES
POET
Technologies Inc.
UNDERWRITING
AGREEMENT
November
30, 2023
Maxim
Group LLC
As
the Representative of the
Several
underwriters, if any, named in Schedule I hereto
c/o
Maxim Group LLC
300
Park Avenue, 16th Floor
New
York, New York 10022
Ladies
and Gentlemen:
The
undersigned, POET Technologies Inc., a corporation existing under the laws of the Province of Ontario, Canada (collectively with its
subsidiaries and affiliates, including, without limitation, all entities disclosed or described in the Registration Statement (as defined
below) as being subsidiaries or affiliates of POET Technologies Inc., the “Company”), hereby confirms its agreement
(this “Agreement”) with the several underwriters (such underwriters, including the Representative (as defined below),
the “Underwriters” and each an “Underwriter”) named in Schedule I hereto for which Maxim
Group LLC is acting as representative to the several Underwriters (the “Representative” and, if there are no Underwriters
other than the Representative, references to multiple Underwriters shall be disregarded and the term Representative as used herein shall
have the same meaning as Underwriters) on the terms and conditions set forth herein. Maxim Group LLC is acting as the sole book-running
manager in connection with the Offering (as defined below) contemplated herein.
It
is understood that the several Underwriters are to make a public offering of the Public Securities in the United States only as soon
as the Representative deems it advisable to do so. The Public Securities are to be initially offered to the public at the public offering
price set forth in the Prospectus (as defined below).
It
is further understood that you will act as the Representative for the Underwriters in the Offering and sale of the Closing Securities
(as defined below) and, if any, the Option Securities, in accordance with this Agreement.
ARTICLE
I.
DEFINITIONS
1.1
Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms
have the meanings set forth in this Section 1.1:
“Action”
shall have the meaning ascribed to such term in Section 3.1(k).
“Affiliate”
means with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls or is controlled
by or is under common control with such Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Applicable
Period” shall have the meaning ascribed to such term in Section 4.4.
“ATM”
shall have the meaning ascribed to such term in Section 4.20.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or Canada
or any day on which banking institutions in the State of New York or the Province of Ontario are authorized or required by law or other
governmental action to close.
“Canadian
Disclosure Record” means the public disclosure of the Company filed on the System for Electronic Document Analysis and Retrieval
+.
“Canadian
Jurisdiction” means each province and territory of Canada.
“Closing”
means the closing of the purchase and sale of the Closing Securities pursuant to Section 2.1.
“Closing
Date” means the hour and the date on the Trading Day on which all conditions precedent to (i) the Underwriters’ obligations
to pay the Closing Purchase Price and (ii) the Company’s obligations to deliver the Closing Securities, in each case, have been
satisfied or waived, but in no event later than 10:00 a.m. (New York City time) on the second (2nd) Trading Day (or third
(3rd) Trading Day if this Agreement is executed after 4:00 p.m. (New York City Time) but prior to 11:59 p.m. (New York City Time)) following
the date hereof or at such other time as shall be agreed upon by the Representative and the Company.
“Closing
Purchase Price” shall have the meaning ascribed to such term in Section 2.1(b).
“Closing
Securities” shall have the meaning ascribed to such term in Section 2.1(a)(ii).
“Closing
Shares” shall have the meaning ascribed to such term in Section 2.1(a)(i).
“Closing
Warrants” shall have the meaning ascribed to such term in Section 2.1(a)(ii).
“Commissions”
means (i) the SEC and (ii) the securities regulatory authorities in each of the Canadian Jurisdictions, as applicable.
“Common
Share Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Shares, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that
is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares.
“Common
Shares” means common shares in the capital of the Company and any other class of securities into which such securities may
hereafter be reclassified or changed.
“Company
Auditor” means Marcum LLP.
“Company
Canadian Counsel” means Bennett Jones LLP, with offices located at 100 King Street West, Suite 3400, Toronto, Ontario, Canada
M5X 1A4.
“Company
Indemnitees” shall have the meaning ascribed to such term in Section 6.3.
“Company
U.S. Counsel” means Katten Muchin Rosenman LLP, with offices located at 525 West Monroe Street, Chicago, Illinois 60661.
“Contributing
Party” shall have the meaning ascribed to such term in Section 6.4(b).
“Disclosure
Record” means, together, the SEC Reports and the Canadian Disclosure Record.
“Effective
Date” shall have the meaning ascribed to such term in Section 3.1(f).
“EGS”
means Ellenoff Grossman & Schole LLP, with offices located at 1345 Avenue of the Americas, New York, New York 10105.
“Engagement
Agreement” shall have the meaning ascribed to such term in Section 7.2.
“Environmental
Laws” shall have the meaning ascribed to such term in Section 3.1(mm).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange
Act Registration Period” shall have the meaning ascribed to such term in Section 4.2(c).
“Execution
Date” shall mean the date on which the parties execute and enter into this Agreement.
“Exempt
Issuance” means the issuance of (a) Common Shares, options or share awards to employees, officers or directors of the Company
pursuant to any equity incentive plan duly adopted by the Board of Directors or a committee thereof, (b) securities upon the exercise
or exchange of any Warrants issued hereunder, and/or securities upon the exercise or exchange of or conversion of any securities exercisable
or exchangeable for or convertible into Common Shares issued and outstanding on the date of this Agreement, provided that such securities
have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange
price or conversion price of such securities (other than in connection with stock splits, stock combinations or other similar events)
or to extend the term of such securities, (c) securities issued pursuant to acquisitions (in whole or in part) of, or investments in,
businesses, intellectual property, technology or other assets (including by merger, consolidation, purchase of equity interests or assets
or otherwise), recapitalizations or other strategic transactions, including strategic partnerships and joint ventures, approved by the
Board of Directors, provided that such securities are issued as “restricted securities” (as defined in Rule 144 promulgated
under the Securities Act) and carry no registration rights that require the filing of any registration statement in connection therewith
within 60 days following the Closing Date, and provided that any such issuance shall only be to a Person (or to the equity holders of
a Person), which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with
the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not
include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary
business is investing in securities, (d) Common Shares in a transaction as contemplated by that certain letter agreement, dated as of
October 12, 2022, by and between the Company and Pacific Gate Advisors, LLC, with any one or more of the investors on a list provided
to the Representative prior to the date hereof where the proceeds of such transaction shall be used for a Subsidiary, (e) Common Shares
in a financing transaction with IBK Capital Corp. on terms materially consistent with the terms described in the Engagement Agreement,
and (f) Common Shares and/or warrants to purchase Common Shares in a private placement solely to Canadian retail investors provided that
the offering price per Common Share or Common Share and warrant in such offering is equal to or greater than the price paid by the investors
in this Offering for the Securities (for the avoidance of doubt, the securities offered under this subsection (f) shall be subject to
a four month holding period).
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“FINRA”
means the Financial Industry Regulatory Authority.
“Hazardous
Materials” shall have the meaning ascribed to such term in Section 3.1(mm).
“IFRS”
shall have the meaning ascribed to such term in Section 3.1(i).
“IIROC”
means the Investment Industry Regulatory Organization of Canada.
“Indebtedness”
means (a) any liabilities for borrowed money or amounts owed in excess of $100,000 (other than trade accounts payable incurred in the
ordinary course of business), (b) all guaranties, endorsements and other contingent obligations in respect of indebtedness for borrowed
money of others, whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto),
except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of
business; and (c) the present value of any lease payments in excess of $100,000 due under leases required to be capitalized in accordance
with IFRS.
“Intellectual
Property” shall have the meaning ascribed to such term in Section 3.1(p).
“IT
Systems and Data” shall have the meaning ascribed to such term in Section 3.1(nn).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up
Agreements” means the lock-up agreements that are delivered on the date hereof by each of the Company’s executive officers
and directors and Affiliates, if any, beneficially owning in excess of 5% of the Company’s Common Shares, substantially in the
form of Exhibit D attached hereto.
“Material
Adverse Effect” means (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document,
(ii) a material adverse effect on the results of operations, assets, business, prospects, or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole or (iii) a material adverse effect on the Company’s ability to perform in any material
respect on a timely basis its obligations under any Transaction Document.
“Material
Permit” shall have the meaning ascribed to such term in Section 3.1(n).
“Offering”
shall have the meaning ascribed to such term in Section 2.1(c).
“Option
Closing Date” shall have the meaning ascribed to such term in Section 2.2(c).
“Option
Closing Purchase Price” shall have the meaning ascribed to such term in Section 2.2(b).
“Option
Securities” shall have the meaning ascribed to such term in Section 2.2(a).
“Option
Shares” shall have the meaning ascribed to such term in Section 2.2(a).
“Option
Warrants” shall have the meaning ascribed to such term in Section 2.2(a).
“Over-Allotment
Option” shall have the meaning ascribed to such term in Section 2.2(a).
“Per
Share Purchase Price” shall have the meaning ascribed to such term in Section 2.1(b).
“Per
Warrant Purchase Price” shall have the meaning ascribed to such term in Section 2.1(b).
“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4.2(d).
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Proceeding”
means a claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such
as a deposition), whether commenced or threatened.
“Prospectus”
means the base prospectus, dated August 18, 2023, contained in the Registration Statement, together with the Prospectus Supplement, including
the documents and information incorporated by reference therein (except to the extent superseded or modified).
“Prospectus
Supplement” means any preliminary or final supplement to the Prospectus, in each case, including the documents and information
incorporated by reference therein (except to the extent superseded or modified), complying with Rule 424(b) of the Securities Act that
discloses the proposed terms of the Offering and the public offering price and other terms of the Public Securities and is filed with
the SEC pursuant to Rule 424(b).
“Public
Securities” means, collectively, the Closing Securities and, if any, the Option Securities.
“Q3
2023 6-K” shall have the meaning ascribed to such term in Section 3.1(h).
“Registration
Statement” means, collectively, the various parts of the registration statement prepared by the Company and filed with the
SEC on Form F-3 (File No. 333-273853) on August 9, 2023, as amended as of the date hereof, including the Prospectus, and all documents
or information incorporated by reference into such registration statement, except to the extent superseded or modified, and includes
any Rule 462(b) Registration Statement.
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule
424” means Rule 424 promulgated by the SEC pursuant to the Securities Act, as such Rule may be amended or interpreted from
time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same purpose and effect as such
Rule.
“Rule
462(b) Registration Statement” means any registration statement prepared by the Company registering additional Public Securities,
which was filed with the SEC on or prior to the date hereof and became automatically effective pursuant to Rule 462(b) promulgated by
the SEC pursuant to the Securities Act.
“SEC”
means the United States Securities and Exchange Commission.
“SEC
Reports” shall have the meaning ascribed to such term in Section 3.1(i).
“Securities”
means the Closing Securities, the Option Securities and the Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Shares are listed or quoted for trading on the
date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York
Stock Exchange, the Toronto Stock Exchange or the TSX Venture Exchange (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Lock-Up Agreements, the Warrants, and any other documents or agreements executed in connection
with the transactions contemplated hereunder.
“Transfer
Agent” means Computershare Inc., a Delaware corporation, and its affiliate, Computershare Trust Company, N.A., a federally
chartered trust company, and any successor transfer agent of the Company.
“Variable
Rate Transaction” shall have the meaning ascribed to such term in Section 4.20(b).
“Warrant
Shares” means the Common Shares issuable upon exercise of the Warrants.
“Warrants”
means, collectively, the Common Share Purchase Warrants delivered to the Underwriters in accordance with Section 2.1(a), which Warrants
shall be exercisable immediately and have a term of exercise equal to five years, each in the form of the Common Share Purchase Warrant
attached as Exhibit E hereto.
ARTICLE
II.
PURCHASE
AND SALE
2.1
Closing.
(a)
Upon the terms and subject to the conditions set forth herein, the Company agrees to sell (i) in the aggregate 1,600,000 Common Shares
and (ii) Warrants exercisable for an aggregate of 1,600,000 Common Shares and each Underwriter agrees to purchase, severally and not
jointly, at the Closing, the following securities of the Company:
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i) |
the
number of Common Shares (the “Closing Shares”) set forth opposite the name of such Underwriter on Schedule I hereto;
and |
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ii) |
Warrants
to purchase up to the number of Common Shares set forth opposite the name of such Underwriter on Schedule I hereto, which shall have
an exercise price equal to $1.12 (subject to adjustment as provided therein) (the “Closing Warrants,” and, collectively
with the Closing Shares, the “Closing Securities”). |
(b)
The aggregate purchase price for the Closing Securities to be purchased by each Underwriter shall equal the amount set forth opposite
the name of such Underwriter on Schedule I hereto (such Underwriter’s “Closing Purchase Price”). The
combined purchase price for one Common Share and one Warrant to purchase one Warrant Share shall be $0.837, which shall be allocated
as $0.836999907 per Common Share (the “Per Share Purchase Price”) and $0.000000093 per Warrant (the “Per
Warrant Purchase Price”).
(c)
On the Closing Date, each Underwriter shall deliver or cause to be delivered to the Company, via wire transfer, immediately available
funds equal to such Underwriter’s Closing Purchase Price and the Company shall deliver to, or as directed by, such Underwriter
its respective Closing Securities and the Company shall deliver the other items required pursuant to Section 2.3 deliverable at the Closing.
Upon satisfaction of the covenants and conditions set forth in Sections 2.3 and 2.4, the Closing shall occur at the offices of EGS or
such other location as the Company and the Representative shall mutually agree. The Public Securities are to be offered initially to
the public at the offering price set forth on the cover page of the Prospectus Supplement (the “Offering”). The Representative
shall deliver the Underwriters’ Closing Purchase Price to the Company in United States Dollars.
2.2
Over-Allotment Option.
(a)
For the purposes of covering any over-allotments in connection with the distribution and sale of the Closing Securities, the Representative
is hereby granted an option (the “Over-Allotment Option”) to purchase, in the aggregate, up to 240,000 Common Shares
(the “Option Shares”) and/or Warrants to purchase up to 240,000 Common Shares (the “Option Warrants”
and, collectively with the Option Shares, the “Option Securities”) which may be purchased in any combination of Option
Shares and/or Option Warrants at the Per Share Purchase Price and/or Per Warrant Purchase Price, respectively.
(b)
In connection with an exercise of the Over-Allotment Option, (a) the purchase price to be paid for the Option Shares is equal to the
product of the Per Share Purchase Price multiplied by the number of Option Shares to be purchased and (b) the purchase price to be paid
for the Option Warrants is equal to the product of the Per Warrant Purchase Price multiplied by the number of Option Warrants to be purchased
(the aggregate purchase price to be paid on an Option Closing Date, the “Option Closing Purchase Price”).
(c)
The Over-Allotment Option granted pursuant to this Section 2.2 may be exercised by the Representative as to all (at any time) or any
part (from time to time) of the Option Securities within 45 days after the Execution Date. An Underwriter will not be under any obligation
to purchase any Option Securities prior to the exercise of the Over-Allotment Option by the Representative. The Over-Allotment Option
granted hereby may be exercised by the giving of oral notice to the Company from a Representative, which must be confirmed in writing
by overnight mail or other electronic transmission setting forth the number of Option Shares and/or Option Warrants to be purchased and
the date and time for delivery of and payment for the Option Securities (each, an “Option Closing Date”), which will
not be later than two (2) full Business Days after the date of the notice or such other time as shall be agreed upon by the Company and
the Representative, at the offices of EGS or at such other place (including remotely by other electronic transmission) as shall be agreed
upon by the Company and the Representative. If such delivery and payment for the Option Securities does not occur on the Closing Date,
each Option Closing Date will be as set forth in the notice. Upon exercise of the Over-Allotment Option, the Company will become obligated
to convey to the Underwriters, and, subject to the terms and conditions set forth herein, the Underwriters will become obligated to purchase,
the number of Option Shares and/or Option Warrants specified in such notice. The Representative may cancel the Over-Allotment Option
at any time prior to the expiration of the Over-Allotment Option by written notice to the Company.
2.3
Deliveries. The Company shall deliver or cause to be delivered to each Underwriter (if applicable) the following:
(i)
At the Closing Date, the Closing Shares, and as to each Option Closing Date, if any, the applicable Option Shares, which Common Shares
shall be delivered via The Depository Trust Company’s Deposit/Withdrawal at Custodian system for the accounts of the several Underwriters
as directed by the Representative;
(ii)
At the Closing Date, the Closing Warrants, and as to each Option Closing Date, if any, the applicable Option Warrants, which Closing
Warrants shall be delivered in certificated form and registered in the name or names and in such authorized denominations as requested
by the Representative in writing at least two (2) Business Day prior to the Closing Date and, if any, each Option Closing Date;
(iii)
At the Closing Date, and each Option Closing Date, if any, a legal opinion of Company Canadian Counsel addressed to the Underwriters,
in form and substance reasonably satisfactory to the Representative;
(iv)
At the Closing Date and each Option Closing Date, if any, a legal opinion of Company U.S. Counsel addressed to the Underwriters, including,
without limitation, a negative assurance letter, in form and substance reasonably satisfactory to the Representative;
(v)
At the Closing Date and each Option Closing Date, if any, a certificate executed by the Vice President of Intellectual Property of the
Company, solely in his capacity in such role, addressed to the Underwriters, substantially in the form of Exhibit A attached hereto;
(vi)
Contemporaneously herewith, a cold comfort letter, addressed to the Underwriters and in form and substance satisfactory in all respects
to the Representative from the Company Auditor dated, respectively, as of the date of this Agreement and a bring-down letter dated as
of the Closing Date and each Option Closing Date, if any;
(vii)
At the Closing Date and on each Option Closing Date, if any, the duly executed and delivered Officer’s Certificate addressed to
the Underwriters, substantially in the form of Exhibit B attached hereto;
(viii)
At the Closing Date and on each Option Closing Date, if any, the duly executed and delivered Secretary’s Certificate addressed
to the Underwriters, substantially in the form of Exhibit C attached hereto;
(ix)
Contemporaneously herewith, the duly executed and delivered Lock-Up Agreements addressed to the Underwriters, substantially in the form
of Exhibit D attached hereto; and
(x)
Contemporaneously herewith, the duly executed and delivered Chief Financial Officer’s Certificate addressed to the Underwriters,
substantially in the form of Exhibit F attached hereto, and a bring-down Chief Financial Officer’s Certificate dated as
of the Closing Date and each Option Closing Date, if any.
2.4
Closing Conditions. The respective obligations of each Underwriter hereunder in connection with the Closing and on each Option
Closing Date are subject to the following conditions being met:
(i)
the accuracy in all material respects when made and on the date in question (other than representations and warranties of the Company
already qualified by materiality, which shall be true and correct in all respects) of the representations and warranties of the Company
contained herein (unless as of a specific date therein, in which case they shall be accurate in all material respects as of such date);
(ii)
all obligations, covenants and agreements of the Company required to be performed at or prior to the date in question shall have been
performed in all material respects;
(iii)
the delivery by the Company of the items set forth in Section 2.3 of this Agreement;
(iv)
the Registration Statement shall be effective on the date of this Agreement, and, at the Closing Date and each Option Closing Date, if
applicable, (a) no stop order suspending the effectiveness of the Registration Statement shall have been issued, and no Proceedings for
that purpose shall have been instituted or shall be pending or contemplated by the Commissions; and (b) any request on the part of the
Commissions for additional information shall have been complied with to the reasonable satisfaction of the Representative;
(v)
[Intentionally omitted.]
(vi)
the filing by the Company of a notification of listing of additional shares with the Nasdaq Capital Market for the listing of the Closing
Securities and, as applicable, the Option Securities thereon; and
(vii)
prior to and on each of the Closing Date and each Option Closing Date, if any: (i) there shall have been no material adverse change or
development involving a prospective material adverse change in the condition, prospects or the business activities, financial or otherwise,
of the Company from the latest dates as of which such condition is set forth in the Registration Statement and Prospectus; (ii) no Action,
suit or Proceeding, at law or in equity, shall have been pending or threatened against the Company or any Affiliate of the Company before
or by any court or federal, state or provincial commission, board or other administrative agency wherein an unfavorable decision, ruling
or finding would be reasonably likely to materially adversely affect the business, operations, prospects or financial condition or income
of the Company, except as set forth in the Registration Statement and Prospectus; (iii) no stop order with respect to the Registration
Statement shall have been issued under the Securities Act and no Proceedings therefor shall have been initiated or threatened by the
SEC; (iv) the Registration Statement, the Prospectus and any amendments or supplements thereto shall contain all material statements
which are required to be stated therein in accordance with the Securities Act and the rules and regulations thereunder and shall conform
in all material respects to the requirements of the Securities Act and the rules and regulations thereunder, and neither the Registration
Statement nor the Prospectus, in each case, as amended or supplemented as applicable, shall contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
2.5
Acknowledgment regarding Canadian Prospectus Exemption. The parties hereto acknowledge and agree that the Company is relying upon
the prospectus exemption provided by Ontario Securities Commission Rule 72-503 in connection with the offer, sale and distribution of
the Securities hereunder.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1
Representations and Warranties of the Company. The Company represents and warrants to the Underwriters as of the Execution Date,
as of the Closing Date, and as of each Option Closing Date, if any, as follows:
(a)
Subsidiaries. All of the direct and indirect Subsidiaries of the Company are set forth in the Disclosure Record. The Company owns,
directly or indirectly, all of the share capital or other equity interests of each Subsidiary free and clear of any Liens, and all of
the issued and outstanding shares of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and
similar rights to subscribe for or purchase securities. If the Company has no Subsidiaries, all other references to the Subsidiaries
or any of them in the Transaction Documents shall be disregarded.
(b)
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned
by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would
not have or reasonably be expected to result in a Material Adverse Effect, and no Proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
(c)
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions
contemplated by this Agreement and each of the other Transaction Documents to which the Company is a party and otherwise to carry out
its obligations hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by
the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary
action on the part of the Company, and no further action is required by the Company, the Board of Directors or the Company’s shareholders
in connection herewith or therewith other than the Required Approvals. This Agreement and each other Transaction Document to which the
Company is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the
terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance
with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law and public policy with respect thereto.
(d)
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to
which it is a party, the issuance and sale of the Public Securities and the consummation by it of the transactions contemplated hereby
and thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate
or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or
an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the
properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or
Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset
of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation
of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which
the Company or a Subsidiary is subject (including federal, state and provincial securities laws and regulations), or by which any property
or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as would not
reasonably be expected to result in a Material Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any
notice to, or make any filing or registration with, any court or other federal, state, provincial, local or other governmental authority
or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i)
the filing with the SEC of the Prospectus Supplement, (ii) application(s) or notifications to each applicable Trading Market (including
the approval of the TSX Venture Exchange) for the listing of the Public Securities for trading thereon in the time and manner required
thereby, (iii) such filings as are required to be made under applicable securities laws and (iv) any required notices under outstanding
warrant agreements (collectively, the “Required Approvals”). All Required Approvals (other than the final approval
of the TSX Venture Exchange) shall have been obtained (or, in the case of the notification, made) by the Company by the time of Closing.
(f)
Registration Statement and Prospectuses.
(i)
The Company has filed with the SEC the Registration Statement under the Securities Act, which became effective on August 18, 2023 (the
“Effective Date”). At the time of such filing, the Company met the requirements of Form F-3 under the Securities Act.
The Registration Statement meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said Rule
and the Prospectus Supplement will meet the requirements set forth in Rule 424(b). The Company is eligible to use Form F-3 under the
Securities Act and it meets the transaction requirements set forth in General Instruction I.B.1 of Form F-3. The Company has advised
the Representative of all further information (financial and other) with respect to the Company required to be set forth therein in the
Registration Statement and the Prospectus. Any reference in this Agreement to the Registration Statement, the Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the documents incorporated by reference therein which were filed under the Exchange
Act, on or before the date of this Agreement, or the issue date of the Prospectus or the Prospectus Supplement, as the case may be.
(ii)
Any reference in this Agreement to the terms “amend,” “amendment” or “supplement” with respect to
the Registration Statement, the Prospectus or the Prospectus Supplement shall be deemed to refer to and include the filing of any document
under the Exchange Act after the date of this Agreement, or the issue date of the Prospectus or the Prospectus Supplement, as the case
may be, deemed to be incorporated therein by reference.
(iii)
All references in this Agreement to financial statements and schedules and other information which is “contained,” “included,”
“described,” “referenced,” “set forth” or “stated” in the Registration Statement, the
Prospectus or the Prospectus Supplement (and all other references of like import) shall be deemed to mean and include all such financial
statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the
Prospectus or the Prospectus Supplement, as the case may be. No stop order suspending the effectiveness of the Registration Statement
or the use of the Prospectus or the Prospectus Supplement has been issued by the SEC, and no Proceeding for any such purpose is pending
or has been initiated or, to the knowledge of the Company, is threatened by the SEC.
(iv)
For purposes of this Agreement, “Free Writing Prospectus” has the meaning set forth in Rule 405 under the Securities
Act. The Company will not, without the prior consent of the Representative (which consent shall not be unreasonably withheld, conditioned
or delayed), prepare, use or refer to any Free Writing Prospectus.
(g)
Issuance of Securities. The Public Securities are duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, the Closing Shares will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens.
The Warrant Shares, when issued in accordance with the terms of the Warrants, will be validly issued, fully paid and nonassessable, free
and clear of all Liens. A holder of the Public Securities will not be subject to personal liability by reason of being such a holder.
The Public Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar
contractual rights granted by the Company. All corporate action required to be taken for the authorization, issuance and sale of the
Public Securities has been duly and validly taken. The Public Securities conform in all material respects to all statements with respect
thereto contained in the Registration Statement.
(h)
Capitalization. The capitalization of the Company is as set forth in the Disclosure Record. The Company has not issued any share
capital since its current report on Form 6-K/A filed with the SEC on November 21, 2023 under the Exchange Act (the “Q3 2023
6-K”), other than pursuant to the ATM (as hereinafter defined), the exercise of employee stock options or share awards under
the Company’s equity incentive plan, the issuance of Common Shares to employees pursuant to the Company’s employee stock
purchase plans and pursuant to the conversion and/or exercise of Common Share Equivalents outstanding as of the date of the Q3 2023 6-K.
No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions
contemplated by the Transaction Documents. Except as a result of the purchase and sale of the Securities and as set forth in the Prospectus,
there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to,
or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe
for or acquire, any Common Shares, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is
or may become bound to issue additional Common Shares or Common Share Equivalents. The issuance and sale of the Public Securities will
not obligate the Company to issue Common Shares or other securities to any Person (other than the Underwriters) and will not result in
a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities.
There are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions,
and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound
to redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom stock”
plans or agreements or any similar plan or agreement. All of the outstanding shares in the capital of the Company are duly authorized,
validly issued, fully paid and nonassessable, have been issued in compliance with all federal, state and provincial securities laws,
and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities.
The authorized shares of the Company conform in all material respects to all statements relating thereto contained in the Registration
Statement and the Prospectus. The offers and sales of the Company’s securities were, at all relevant times, either registered under
the Securities Act and the applicable state securities or Blue Sky laws, qualified for distribution in Canada pursuant to a valid prospectus,
or based in part on the representations and warranties of the purchasers, exempt from such registration or prospectus requirements. No
further approval or authorization of any shareholder, the Board of Directors or others is required for the issuance and sale of the Public
Securities as provided herein. There are no shareholder agreements, voting agreements or other similar agreements with respect to the
Company’s share capital to which the Company is a party.
(i)
SEC Reports; Canadian Disclosure Record; Financial Statements. The Company has filed all reports, schedules, forms, statements
and other documents required to be filed by the Company under (a) applicable Canadian securities laws and (b) the Securities Act and
the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, (the foregoing materials, together with the Registration Statement
and the Prospectus, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein
as the “SEC Reports”), in each case, for the two (2) years preceding the date hereof (or such shorter period as the
Company was required by law or regulation to file such materials), on a timely basis or has received a valid extension of such time of
filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, (a) the SEC Reports
complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, (b) the Canadian Disclosure
Record complied in all material respects with the requirements of applicable Canadian securities laws, and (c) none of the SEC Reports
and/or Canadian Disclosure Record, when filed, contained any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading. The financial statements of the Company included in the SEC Reports and the Canadian Disclosure Record comply
in all material respects with applicable accounting requirements and rules and regulations of the Commissions with respect thereto as
in effect at the time of filing. Such financial statements have been prepared in accordance with International Financial Reporting Standards
applied on a consistent basis during the periods involved (“IFRS”), except as may be otherwise specified in such financial
statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by IFRS, and fairly
present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof
and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments. The agreements and documents described in the Registration Statement, the Prospectus, the Prospectus Supplement,
and the Disclosure Record conform in all material respects to the descriptions thereof contained therein, and there are no agreements
or other documents required by the Securities Act and the rules and regulations thereunder or applicable Canadian securities laws to
be described in the Registration Statement, the Prospectus or the SEC Reports or to be filed with the Commissions as exhibits or otherwise
to the Registration Statement, that have not been so described or filed. Each agreement or other instrument (however characterized or
described) to which the Company is a party or by which it is or may be bound or affected and (i) that is referred to in the Registration
Statement, the Prospectus, the Prospectus Supplement or the Disclosure Record, or (ii) is material to the Company’s business, has
been duly authorized and validly executed by the Company, is in full force and effect in all material respects and is enforceable against
the Company and, to the Company’s knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability
may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability
of any indemnification or contribution provision may be limited under the federal and state, provincial and territorial securities laws
and public policy with respect thereto, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief
may be subject to the equitable defenses and to the discretion of the court before which any Proceeding therefore may be brought. None
of such agreements or instruments has been assigned by the Company, and neither the Company nor, to the the Company’s knowledge,
any other party is in default thereunder and, to the Company’s knowledge, no event has occurred that, with the lapse of time or
the giving of notice, or both, would constitute a default thereunder. Performance by the Company of the material provisions of such agreements
or instruments will not result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental
agency or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses, including, without limitation,
those relating to environmental laws and regulations, except, in each case, as would not reasonably be expected to have a Material Adverse
Effect.
(j)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof, (i) there has been
no event, occurrence or development that has had or that would reasonably be expected to result in a Material Adverse Effect, (ii) the
Company has not incurred any material liabilities (contingent or otherwise) other than (A) fees, expenses and other liabilities incurred
in connection with the transactions contemplated hereby, (B) trade payables and accrued expenses incurred in the ordinary course of business
consistent with past practice and (C) liabilities not required to be reflected in the Company’s financial statements pursuant to
IFRS or disclosed in filings made with the Commissions, (iii) the Company has not altered its method of accounting, (iv) the Company
has not declared or made any dividend or distribution of cash or other property to its shareholders or purchased, redeemed or made any
agreements to purchase or redeem any of its share capital, (v) the Company has not issued any equity securities to any officer, director
or Affiliate, except pursuant to existing Company equity incentive plan and (vi) no officer or director of the Company has resigned from
any position with the Company. The Company does not have pending before the Commissions any request for confidential treatment of information.
Except for the issuance of the Public Securities contemplated by this Agreement, no event, liability, fact, circumstance, occurrence
or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or
their respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed
by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed
at least one (1) Trading Day prior to the date that this representation is made. Unless otherwise disclosed in an SEC Report filed prior
to the date hereof, since the Q3 2023 6-K, the Company has not: (i) issued any debt securities or incurred any liability or obligation,
direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other distribution on or in respect to its
share capital.
(k)
Litigation. Other than as disclosed in the SEC Reports, there is no action, suit, inquiry, notice of violation, Proceeding or
investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their
respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state,
county, local or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the legality, validity
or enforceability of any of the Transaction Documents or the Public Securities or (ii) if there were an unfavorable decision, would reasonably
be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any current director or officer thereof,
is or has been the subject of any Action involving a claim of violation of or liability under federal, state or provincial securities
laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the Commissions involving the Company or any current director or officer of the Company. The SEC has not issued
any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under
the Exchange Act or the Securities Act.
(l)
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which would reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement. To the Company’s knowledge, no current
executive officer of the Company or any Subsidiary, is, or is now expected to be, in violation of any material term of any employment
contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement
or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer does not subject
the Company or any of its Subsidiaries to any liability with respect to any of the foregoing matters, in each case, except as would not
reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries are in compliance with all federal, state,
provincial, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment
and wages and hours, except where the failure to be in compliance would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(m)
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that
has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor
has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all foreign, federal, state, provincial and local laws relating to taxes, environmental protection,
occupational health and safety, product quality and safety and employment and labor matters, except, in each case, as would not reasonably
be expected to result in a Material Adverse Effect.
(n)
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the Disclosure
Record, except where the failure to possess such permits would not reasonably be expected to result in a Material Adverse Effect (each,
a “Material Permit”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to
the revocation or modification of any Material Permit. The disclosures in the Registration Statement concerning the effects of federal,
state, provincial, local and all foreign regulation on the Company’s business as currently contemplated are correct in all material
respects.
(o)
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to, or have valid and marketable
rights to lease or otherwise use, all real property and all personal property that is material to the business of the Company and the
Subsidiaries, in each case, free and clear of all Liens, except for (i) Liens that do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii)
Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made in accordance with IFRS, and the
payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and
the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.
(p)
Intellectual Property. The Company owns, possesses, licenses or has other rights to use copyrights, trademarks, service marks,
trade names, Internet domain names, technology, know-how (including trade secrets and other unpatented and/or unpatentable proprietary
rights) and other intellectual property necessary or used in any material respect to conduct its business in the manner in which it is
being conducted and in the manner in which it is contemplated as set forth in the SEC Reports (collectively, the “Intellectual
Property”). (i) None of the Intellectual Property is unenforceable or invalid; (ii) except as set forth in the SEC Reports,
the Company has not received any written notice of violation or conflict with (and the Company has no knowledge of any basis for violation
or conflict with) rights of others with respect to the Intellectual Property; and (iii) except as set forth in the SEC Reports, there
are no pending or, to the Company’s knowledge after due inquiry, threatened Actions, suits, Proceedings or claims by others that
allege any of the Company or a Subsidiary is infringing any patent, trade secret, trademark, service mark, copyright or other intellectual
property or proprietary right. To the Company’s knowledge, the discoveries, inventions, products or processes of the Company referenced
in the SEC Reports do not violate or conflict with any intellectual property or proprietary right of any third Person, or any discovery,
invention, product or process that is the subject of a patent application filed by any third Person; no officer, director or employee
of the Company is in or has been, during such director’s or employee’s tenure as such with the Company, in material violation
of any term of any patent non-disclosure agreement, invention assignment agreement, or similar agreement relating to the protection,
ownership, development, use or transfer of the Intellectual Property or, to the Company’s knowledge after due inquiry, any other
intellectual property, except where any violation would not, individually or in the aggregate, have a Material Adverse Effect. The Company
is not in breach of, and has complied in all material respects with all terms of, any license or other agreement relating to the Intellectual
Property. There are no contracts or other documents related to the Intellectual Property required to be described in or filed as an exhibit
to the Registration Statement and the SEC Reports other than those described in or filed as an exhibit to the Registration Statement
and the SEC Reports. The Company has taken all necessary and reasonably appropriate steps to protect and preserve the confidentiality
of applicable Intellectual Property (“Confidential Information”).
(q)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including,
but not limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business.
(r)
Transactions With Affiliates and Employees. Other than as disclosed in the SEC Reports, none of the current officers or directors
of the Company or any Subsidiary and, to the knowledge of the Company, none of the current employees of the Company or any Subsidiary
is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to
or from, any officer, director or such employee or, to the knowledge of the Company, any entity in which any current officer, director,
or any such employee has a substantial interest or is an officer, director, trustee, shareholder, member or partner, in each case, in
excess of $250,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred
on behalf of the Company and (iii) other employee benefits, including, but not limited to, award agreements under any equity incentive
plan of the Company.
(s)
Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in compliance with any and all applicable requirements
of the Sarbanes-Oxley Act of 2002 and similar legislation in Canada that are effective as of the date hereof, and any and all applicable
rules and regulations promulgated by the Commissions thereunder that are effective as of the date hereof and as of the Closing Date.
The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i)
transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
The Company and the Subsidiaries have established disclosure controls and procedures (in the United States, as defined in Exchange Act
Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that
information required to be disclosed by the Company in the reports it files or submits under the Exchange Act and under applicable Canadian
securities laws is recorded, processed, summarized and reported, within the time periods specified in the Commissions’ rules and
forms. In accordance with the requirements of the Exchange Act and applicable Canadian securities laws, the Company’s certifying
officers evaluate the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the
period covered by the most recently filed periodic report under the Exchange Act and under applicable Canadian securities laws (any such
date, the “Evaluation Date”). As applicable, in accordance with the requirements of the Exchange Act and Canadian
securities laws, the Company presented in its most recently filed periodic report under the Exchange Act and under applicable Canadian
securities laws the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on
their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over financial
reporting (in the United States, as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially
affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.
(t)
Certain Fees. Except as set forth in the Prospectus Supplement, no brokerage or finder’s fees or commissions are or will
be payable by the Company, any Subsidiary or Affiliate of the Company to any broker, financial advisor or consultant, finder, underwriter,
investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. To the Company’s
knowledge, there are no other arrangements, agreements or understandings of the Company or, to the Company’s knowledge, any of
its shareholders that may affect the Underwriters’ compensation, including as determined by FINRA. Other than as disclosed in the
SEC Reports, the Company has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any Person, as a finder’s
fee, consulting fee or otherwise, in consideration of such Person raising capital for the Company or introducing to the Company Persons
who raised or provided capital to the Company; (ii) any FINRA or IIROC member; or (iii) any Person or entity that has any direct or indirect
affiliation or association with any FINRA or IIROC member, in each case within the twelve (12) months prior to the Execution Date. None
of the net proceeds of the Offering will be paid by the Company to any participating FINRA or IIROC member or its affiliates, except
as specifically authorized herein.
(u)
Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Public Securities
will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
(v)
Registration Rights. No Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities
Act of any securities of the Company or any Subsidiary.
(w)
Listing and Maintenance Requirements. The Common Shares are registered pursuant to Section 12(b) of the Exchange Act, and the
Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the
Common Shares under the Exchange Act nor has the Company received any notification that the SEC is contemplating terminating such registration.
Other than as disclosed in the Disclosure Record, the Company has not, in the twelve (12) months preceding the date hereof, received
notice from any Trading Market on which the Common Shares are or have been listed or quoted to the effect that the Company is not in
compliance with the listing or maintenance requirements of such Trading Market. The Company has no reason to believe that it will not
in the foreseeable future be in compliance with all such listing and maintenance requirements. The Common Shares are currently eligible
for electronic transfer through the Depository Trust Company or another established clearing corporation.
(x)
Application of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order
to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement)
or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the
laws of its governing jurisdiction that is or would become applicable as a result of the Underwriters and the Company fulfilling their
obligations or exercising their rights under the Transaction Documents.
(y)
Disclosure; 10b-5. The Registration Statement contains all exhibits and schedules as required by the Securities Act. Each of the
Registration Statement and any post-effective amendment thereto, if any, at the time it initially became effective complied in all material
respects with the Securities Act, the Exchange Act and the applicable rules and regulations under the Securities Act and did not and,
as amended or supplemented, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, as of its date, complied or
will comply in all material respects with the Securities Act and the Exchange Act and the applicable rules and regulations, as applicable.
The Prospectus, as amended or supplemented, did not and will not contain as of the date thereof any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were
made, not misleading. The SEC Reports incorporated by reference into the Prospectus, when they were filed with the SEC, conformed in
all material respects to the requirements of the Exchange Act and the applicable rules and regulations, and none of such documents, when
they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact necessary to make
the statements therein (with respect to the SEC Reports incorporated by reference in the Prospectus or the Prospectus Supplement), in
light of the circumstances under which they were made not misleading; and any further documents so filed and incorporated by reference
in the Prospectus or the Prospectus Supplement, when such documents are filed with the SEC, will conform in all material respects to
the requirements of the Exchange Act and the applicable rules and regulations, as applicable, and will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which
they were made not misleading. No post-effective amendment to the Registration Statement reflecting any facts or events arising after
the date thereof (but prior to the date hereof) which represent, individually or in the aggregate, a fundamental change in the information
set forth therein is required to be filed with the SEC. There are no documents required to be filed with the Commissions or under applicable
Canadian securities laws in connection with the transactions contemplated hereby that (x) have not been filed as required pursuant to
the Securities Act or applicable Canadian securities laws or (y) will not be filed within the requisite time period. There are no contracts
or other documents required to be described in the Prospectus or Prospectus Supplement, or to be filed as exhibits or schedules to the
Registration Statement, which have not been described or filed as required. The press releases disseminated by the Company during the
twelve (12) months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made and when made, not misleading.
(z)
No Integrated Offering. Neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly
or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause
this offering of the Public Securities to be integrated with prior offerings by the Company for purposes of any applicable shareholder
approval provisions of any Trading Market on which any of the securities of the Company are listed or designated.
(aa)
Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt
by the Company of the proceeds from the sale of the Public Securities hereunder, (i) the fair saleable value of the Company’s assets
exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including
known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on
its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital
requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof,
and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its
assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities
when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature
(taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any
facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization
laws of any jurisdiction within one year from the Closing Date. The Disclosure Record sets forth as of the date hereof all outstanding
secured and unsecured Indebtedness of the Company or any Subsidiary or for which the Company or any Subsidiary has commitments. Neither
the Company nor any subsidiary is in default with respect to any Indebtedness.
(bb)
Tax Status. Except for matters that would not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state, Canadian federal, provincial
and local income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it
is subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to
be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of
all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes
in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary
know of no basis for any such claim. The provisions for taxes payable, if any, shown on the financial statements filed with or as part
of the Registration Statement are sufficient for all accrued and unpaid taxes, whether or not disputed, and for all periods to and including
the dates of such consolidated financial statements. The term “taxes” mean all federal, state, provincial, local, foreign,
and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service
use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or
other taxes, fees, assessments, or charges of any kind whatsoever, together with any interest and any penalties, additions to tax, or
additional amounts with respect thereto. The term “returns” means all returns, declarations, reports, statements, and other
documents required to be filed in respect to taxes.
(cc)
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any
agent or other Person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any Person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the FCPA or the
Corruption of Foreign Public Officials Act (Canada). The Company has taken reasonable steps to ensure that its accounting controls and
procedures are sufficient to cause the Company to comply in all material respects with the FCPA and in the Corruption of Foreign Public
Officials Act (Canada).
(dd)
Accountants. To the knowledge and belief of the Company, the Company Auditor (i) is an independent registered public accounting
firm as required by the Exchange Act and applicable Canadian securities laws and (ii) shall express its opinion with respect to the financial
statements to be included in the Company’s filings with the Commissions for the fiscal year ending December 31, 2023. The Company
Auditor has not, during the periods covered by the financial statements included in the Prospectus, provided to the Company any prohibited
non-audit services (in the United States, as such term is used in Section 10A(g) of the Exchange Act).
(ee)
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any current director,
officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any sanctions administered by the Office
of Foreign Assets Control of the U.S. Treasury Department or equivalent agency in Canada.
(ff)
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within
the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the Representative’s
request.
(gg)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly,
five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total
equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its
Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject
to the BHCA and to regulation by the Federal Reserve.
(hh)
Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with
applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and the applicable money laundering statutes and applicable
rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no Action, suit or Proceeding by
or before any court or governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary with respect
to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
(ii)
FINRA Affiliation. To the Company’s knowledge, no current officer or director of the Company or any beneficial owner of
10% or more of the Company’s unregistered securities has any direct or indirect affiliation or association with any FINRA member
(as determined in accordance with the rules and regulations of FINRA) that is a FINRA member participating in the offering as defined
in FINRA Rule 5110. The Company will advise the Representative and EGS if it learns that any officer, director or owner of 10% or more
of the Company’s outstanding Common Shares or Common Share Equivalents is or becomes an affiliate or associated person of a FINRA
member firm.
(jj)
Officers’ Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to the Representative
or EGS shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
(kk)
Board of Directors. The Board of Directors is comprised of the Persons set forth in the Company’s Annual Report on Form
20-F for the fiscal year ended December 31, 2022 under the caption of “Directors, Senior Management and Employees.” The overall
composition of the Board of Directors comply with the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder applicable to the
Company and the rules of the applicable Trading Markets. If applicable, at least one member of the Board of Directors qualifies as a
“financial expert” as such term is defined under the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder and
the rules of the applicable Trading Markets. In addition, if applicable, at least a majority of the Persons serving on the Board of Directors
qualify as “independent” as defined under the rules of the applicable Trading Markets and applicable Canadian securities
laws.
(ll) Cybersecurity.
Other than as disclosed in the Disclosure Record, to the Company’s knowledge there has been no security breach or other compromise
of or relating to any of the Company’s or any Subsidiary’s information technology and computer systems, networks, hardware,
software, data (including the data of its respective customers, employees, suppliers, vendors and any third party data maintained by
or on behalf of it), equipment or technology (collectively, “IT Systems and Data”) and (y) the Company and the Subsidiaries
have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security
breach or other compromise to its IT Systems and Data; (ii) the Company and the Subsidiaries are presently in compliance with all applicable
laws or statutes and all judgments, orders, applicable rules and regulations of any court or arbitrator or governmental or regulatory
authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection
of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would not, individually or in
the aggregate, have a Material Adverse Effect; (iii) the Company and the Subsidiaries have implemented and maintained commercially reasonable
safeguards to maintain and protect its material confidential information and the integrity, continuous operation, redundancy and security
of all IT Systems and Data; and (iv) the Company and the Subsidiaries have implemented backup and disaster recovery technology consistent
with industry standards and practices.
(mm) Environmental
Laws. Other than as disclosed in the Disclosure Record, the Company and its Subsidiaries (i) are in compliance with all federal,
state, local and foreign laws relating to pollution or protection of human health or the environment (including ambient air, surface
water, groundwater, land surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases
of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”)
into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments,
licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental
Laws”); (ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to
conduct their respective businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval
where in each clause (i), (ii) and (iii) the failure to so comply or have received any such permit or approval, as applicable, could
be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(nn) ERISA.
The Company is not a party to an “employee benefit plan,” as defined in Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), which: (i) is subject to any provision of ERISA and (ii) is or was at any time
maintained, administered or contributed to by the Company or any of its ERISA Affiliates (as defined hereafter). These plans are referred
to collectively herein as the “Employee Plans.” An “ERISA Affiliate” of any person or entity means
any other person or entity which, together with that person or entity, could be treated as a single employer under Section 414(b), (c),
(m) or (o) of the Internal Revenue Code of 1986, as amended (the “Code”). Each Employee Plan has been maintained in
material compliance with its terms and the requirements of applicable law. No Employee Plan is subject to Title IV of ERISA. The Registration
Statement, Preliminary Prospectus, the Prospectus, and the Prospectus Supplement identify each employment, severance or other similar
agreement, arrangement or policy and each material plan or arrangement required to be disclosed pursuant to the Rules and Regulations
providing for insurance coverage (including any self-insured arrangements), workers’ compensation, disability benefits, severance
benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, or deferred compensation, profit-sharing, bonuses,
stock options, stock appreciation rights or other forms of incentive compensation, or post-retirement insurance, compensation or benefits,
which: (i) is not an Employee Plan; (ii) is entered into, maintained or contributed to, as the case may be, by the Company or any of
its ERISA Affiliates; and (iii) covers any officer or director or former officer or director of the Company or any of its ERISA Affiliates.
These agreements, arrangements, policies or plans are referred to collectively as “Benefit Arrangements.” Each Benefit
Arrangement has been maintained in material compliance with its terms and with the requirements of applicable law. Except as disclosed
in the Disclosure Record, there is no liability in respect of post-retirement health and medical benefits for retired employees of the
Company or any of its ERISA Affiliates, other than medical benefits required to be continued under applicable law. No “prohibited
transaction” (as defined in either Section 406 of ERISA or Section 4975 of the Code) has occurred with respect to any Employee
Plan; and each Employee Plan that is intended to be qualified under Section 401(a) of the Code is so qualified, and nothing has occurred,
whether by action or by failure to act, which could cause the loss of such qualification.
(oo) Equity
Incentive Plans. Each award granted by the Company under the Company’s equity incentive plan was granted (i) in accordance
with the terms of the Company’s equity incentive plan and (ii) in respect of each stock option award, with an exercise price at
least equal to the fair market value of a Common Share on the date such stock option would be considered granted under IFRS and applicable
law. No award granted under the Company’s equity incentive plan has been backdated. The Company has not knowingly granted, and
there is no and has been no Company policy or practice to knowingly grant, awards prior to, or otherwise knowingly coordinate the grant
of awards with, the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial
results or prospects.
(pp) Foreign
Private Issuer. The Company is a “foreign private issuer” as defined in Rule 405 promulgated under the Securities Act.
(qq) Consent
to Jurisdiction. The Company has the power to submit, and pursuant to Section 7.7 of this Agreement has legally, validly, effectively
and irrevocably submitted, to the jurisdiction of any federal or state court in the State of New York, County of New York, and has the
power to designate, appoint and empower, and pursuant to Section 7.7 of this Agreement has legally, validly and effectively designated,
appointed and empowered, an agent for service of process in any suit or proceeding based on or arising under this Agreement in any federal
or state court in the State of New York.
ARTICLE
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1 Amendments.
The Company has delivered, or will as promptly as practicable deliver, to the Underwriters complete conformed copies of the Registration
Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration
Statement (without exhibits), the Prospectus, and each Prospectus Supplement, as amended or supplemented, in such quantities and at such
places as an Underwriter reasonably requests. Neither the Company nor any of its directors and officers has distributed, and none of
them will distribute, prior to the Closing Date, any offering material in connection with the Offering and sale of the Public Securities
other than the Prospectus, the Registration Statement, and copies of the documents incorporated by reference therein. The Company shall
not file any such amendment or supplement to the Registration Statement or the Prospectus relating to the Offering to which the Representative
shall reasonably object in writing.
4.2 Securities
Laws.
(a) Compliance.
During the time when a Prospectus is required to be delivered with respect to the Public Securities under the Securities Act, the Company
will use commercially reasonable efforts to comply with all requirements imposed upon it by the Securities Act and the rules and regulations
thereunder and the Exchange Act and the rules and regulations thereunder, as from time to time in force, so far as necessary to permit
the continuance of sales of or dealings in the Public Securities in accordance with the provisions hereof and the Prospectus. If at any
time when a Prospectus relating to the Public Securities is required to be delivered under the Securities Act, any event shall have occurred
as a result of which, in the opinion of counsel for the Company or counsel for the Underwriters, the Prospectus, as then amended or supplemented,
includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Securities Act, the Company will notify the Underwriters promptly and prepare and file with the
SEC, subject to Section 4.1 hereof, an appropriate amendment or supplement in accordance with Section 10 of the Securities Act.
(b) Filing
of Prospectus Supplements. The Company will file each Prospectus Supplement (in form and substance satisfactory to the Representative)
with the SEC pursuant to the requirements of Rule 424.
(c) Exchange
Act Registration. For a period of three (3) years from the Execution Date (the “Exchange Act Registration Period”),
the Company will use commercially reasonable efforts to maintain the registration of the Common Shares under the Exchange Act. The Company
will not deregister the Common Shares under the Exchange Act without the prior written consent of the Representative (which consent shall
not be unreasonably withheld, conditioned or delayed).
(d) Free
Writing Prospectuses. The Company represents and agrees that it has not made and will not make any offer relating to the Public Securities
that would constitute an issuer free writing prospectus, as defined in Rule 433 of the rules and regulations under the Securities Act,
without the prior written consent of the Representative. Any such free writing prospectus consented to by the Representative is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Company represents that it will treat each Permitted
Free Writing Prospectus as an “issuer free writing prospectus” as defined in rule and regulations under the Securities Act,
and has complied and will comply with the applicable requirements of Rule 433 of the Securities Act, including timely filing with the
SEC where required, legending and record keeping.
4.3 Delivery
to the Underwriters of Prospectuses. The Company will deliver to the Underwriters, without charge, from time to time during the period
when the Prospectus is required to be delivered under the Securities Act or the Exchange Act such number of copies of each Prospectus
as the Underwriters may reasonably request and, as soon as any amendment or supplement to the Registration Statement becomes effective,
deliver to the Representative two original executed copies of such amendments o rsupplements thereto and copies of all exhibits filed
therewith or incorporated therein by reference and all original executed consents of certified experts.
4.4 Effectiveness
and Events Requiring Notice to the Underwriters. The Company will use commercially reasonable efforts to cause the Registration Statement
to remain effective with a current prospectus until the later of nine (9) months from the Execution Date and the date on which the Warrants
are no longer outstanding (“Applicable Period”), and will promptly notify the Underwriters and the holders of the
Warrants and confirm the notice in writing of: (i) the effectiveness of the Registration Statement and any amendment thereto; (ii) the
issuance by the Commissions of any stop order or of the initiation, or the threatening, of any proceeding for that purpose; (iii) the
issuance by any state securities commission of any proceedings for the suspension of the qualification of the Public Securities for offering
or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose; (iv) the mailing and delivery
to the SEC for filing of any amendment or supplement to the Registration Statement or the Prospectus; (v) the receipt of any comments
or request for any additional information from the Commissions; and (vi) the happening of any event during the period described in this
Section 4.4 that, in the judgment of the Company, makes any statement of a material fact made in the Registration Statement or the Prospectus
untrue or that requires the making of any changes in the Registration Statement or the Prospectus in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. If the SEC or any state securities commission shall enter a
stop order or suspend the Registration Statement at any time, the Company will use commercially reasonable efforts to obtain promptly
the lifting of such order. Notwithstanding anything to the contrary herein, the Company shall be deemed to have satisfied its obligations
pursuant to this Section 4.4 if, on or after the date that is nine (9) months from the Execution Date and at any time prior to the date
on which the Warrants are no longer outstanding, the Company shall have filed with the SEC and caused a new registration statement with
respect to the Warrant Shares to be declared effective by the SEC so long as such new registration statement remains effective with a
current prospectus during the Applicable Period.
4.5 [Intentionally
omitted.]
4.6 Expenses
Related to the Offering. The Company hereby agrees to pay on each of the Closing Date and each Option Closing Date, if any, to the
extent not paid at the Closing Date, all expenses incident to the performance of the obligations of the Company under this Agreement,
including, but not limited to: (a) all filing fees and communication expenses relating to the registration of the Public Securities to
be sold in the Offering with the SEC; (b) all FINRA Public Offering Filing System fees associated with the review of the Offering by
FINRA, if applicable; all fees and expenses relating to the listing of such Closing Shares, Option Shares and Warrant Shares on the Trading
Market and such other stock exchanges as the Company and the Representative together determine; (c) all fees, expenses and disbursements
relating to the registration or qualification of such Public Securities under the “blue sky” securities laws of such states
and other foreign jurisdictions as the Representative may reasonably designate (including, without limitation, all filing and registration
fees, and the fees and expenses of Blue Sky or equivalent counsel); (d) the costs of all mailing and printing of the underwriting documents
(including, without limitation, this Agreement and any Blue Sky Surveys), Registration Statements, Prospectuses, prospectuses and all
amendments, supplements and exhibits thereto and as many preliminary and final Prospectuses as the Representative may reasonably deem
necessary; (e) the costs of preparing, printing and delivering the Public Securities; (f) fees and expenses of the Transfer Agent for
the Public Securities (including, without limitation, any fees required for same-day processing of any instruction letter delivered by
the Company); (g) stock transfer and/or stamp taxes, if any, payable upon the transfer of securities from the Company to the Underwriters;
(h) the fees and expenses of the Company’s accountants; (i) the fees and expenses of the Company’s legal counsel and other
agents and representatives; (j) the fees and expenses of the Representative’s legal counsel; (k) the costs associated with the
Underwriters’ use of i-Deal’s book-building, prospectus tracking and compliance software (or other similar software) for
the Offering; (l) the costs associated with the Underwriters’ actual “road show” expenses for this offering; and (j)
the Underwriters’ costs of mailing prospectuses, including documents incorporated by reference therein, to prospective investors;
provided, however, that, notwithstanding anything to the contrary in this Agreement, consistent with Section 1(A)(iii) of the Engagement
Agreement, the Company shall not be obligated to reimburse the underwriters for any fees, costs or disbursements incurred thereby or
on their behalf (including the fees and expenses described in clause (j) of this Section 4.6) in connection with this Agreement or the
Offering in excess of $135,000. The Underwriters may also deduct from the net proceeds of the Offering payable to the Company on the
Closing Date, or each Option Closing Date, if any, the expenses set forth herein to be paid by the Company to the Underwriters.
4.7 Application
of Net Proceeds. The Company will apply the net proceeds from the Offering received by it in a manner consistent with the application
described under the caption “Reasons for the Offer and Use of Proceeds” in the Prospectus Supplement.
4.8 Delivery
of Earnings Statements to Security Holders. The Company will make generally available to its security holders as soon as practicable,
but not later than the last day of the eighteenth full calendar month following the Execution Date, an earnings statement (which need
not be certified by independent public or independent certified public accountants unless required by applicable Canadian securities
laws and/or the Securities Act or the Rules and Regulations under the Securities Act, but which shall satisfy the provisions of Rule
158(a) under Section 11(a) of the Securities Act) covering a period of at least twelve (12) consecutive months beginning after the Execution
Date.
4.9 Stabilization.
Neither the Company, nor, to its knowledge, any of its employees, directors or shareholders (without the consent of the Representative)
has taken or will take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to
cause or result in, under the Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Public Securities.
4.10 Internal
Controls. During the Exchange Act Registration Period, the Company will maintain a system of internal accounting controls designed
to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorization;
(ii) transactions are recorded as necessary in order to permit preparation of financial statements in accordance with IFRS and to maintain
accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization;
and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
4.11 Accountants.
The Company shall continue to retain a nationally recognized independent certified public accounting firm during the Exchange Act Registration
Period. The Underwriters acknowledge that the Company Auditor is acceptable to the Underwriters.
4.12 FINRA.
The Company shall advise the Underwriters (who shall make an appropriate filing with FINRA) if it is aware that any 10% or greater shareholder
of the Company becomes an affiliate or associated Person of an Underwriter.
4.13 No
Fiduciary Duties. The Company acknowledges and agrees that the Underwriters’ responsibility to the Company is solely contractual
and commercial in nature, based on arms-length negotiations and that neither the Underwriters nor their affiliates or any selected dealer
shall be deemed to be acting in a fiduciary capacity, or otherwise owes any fiduciary duty to the Company or any of its affiliates in
connection with the Offering and the other transactions contemplated by this Agreement. Notwithstanding anything in this Agreement to
the contrary, the Company acknowledges that the Underwriters may have financial interests in the success of the Offering that are not
limited to the difference between the price to the public and the purchase price paid to the Company by the Underwriters for the Securities
and the Underwriters have no obligation to disclose, or account to the Company for, any of such additional financial interests. The Company
hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters with
respect to any breach or alleged breach of fiduciary duty.
4.14 Warrant
Shares. If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the
issuance of the Warrant Shares or if the Warrant is exercised via cashless exercise, the Warrant Shares issued pursuant to any such exercise
shall be issued free of all restrictive legends. If at any time following the date hereof the Registration Statement (or any subsequent
registration statement or prospectus registering the sale or resale or qualifying the distributions of the Warrant Shares) is not effective
or is not otherwise available for the issuance of the Warrant Shares upon exercise of the Warrants, the Company shall promptly notify
the holders of the Warrants in writing that such registration statement and/or prospectus is not then effective and thereafter shall
promptly notify such holders when such registration statement is effective again, or when a new prospectus has been filed and is available
for the issuance of the Warrant Shares upon exercise of a Warrant (it being understood and agreed that the foregoing shall not limit
the ability of the Company to issue, or any holder thereof to sell, any of the Warrant Shares in compliance with applicable securities
laws).
4.15 [Intentionally
omitted.]
4.16 Securities
Laws Disclosure; Publicity. At the request of the Representative, promptly and in any event, no later than 9:00 a.m. (New York City
time) on the date immediately following the date hereof, the Company shall issue a press release disclosing the material terms of the
Offering. The Company and the Representative shall consult with each other in issuing any other press releases with respect to the Offering,
and neither the Company nor any Underwriter shall issue any such press release nor otherwise make any such public statement without the
prior consent of the Company, with respect to any press release of such Underwriter, or without the prior consent of such Underwriter,
with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure
is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement
or communication. The Company will not issue press releases or engage in any other publicity, without the Representative’s prior
written consent, for a period ending at 5:00 p.m. (New York City time) on the first Business Day following the 45th day following the
Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business or as may be required
pursuant to the Company’s continuous disclosure obligations.
4.17 Shareholder
Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Underwriter
of the Public Securities is an “Acquiring Person” under any control share acquisition, business combination, poison pill
(including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by
the Company, or that any Underwriter of Public Securities would be deemed to trigger the provisions of any such plan or arrangement,
by virtue of receiving Public Securities.
4.18 [Intentionally
omitted.]
4.19 Listing
of Common Shares. During the Exchange Act Registration Period, the Company hereby agrees to use commercially reasonable efforts to
maintain the listing or quotation of the Common Shares on the Trading Markets on which such Common Shares are currently listed; provided
that, for greater certainty, the foregoing shall not prevent the Company from pursuing or participating in any transaction involving
a change of control that would result in the Company ceasing to maintain such listing or quotation. Concurrently with the Closing, the
Company shall apply or submit a notification to the Trading Markets to list or quote all of the Closing Shares and Warrant Shares on
such Trading Markets and use commercially reasonable efforts to promptly secure the listing of all of the Closing Shares and Warrant
Shares on such Trading Markets. Concurrently with the closing of the purchase and sale of the Option Securities, if any, the Company
shall apply or submit a notification to the Trading Markets to list or quote the Option Securities (or the portion thereof for which
the Over-Allotment Option is exercised, if at all) on such Trading Markets and use commercially reasonable efforts to promptly secure
the listing of such Option Securities (or portion thereof) on such Trading Markets. The Company further agrees, if the Company applies
to have the Common Shares traded on any other Trading Market, it will then include in such application all of the Closing Shares and
Warrant Shares and will take such other commercially reasonable action as is necessary to cause all of the Closing Shares and Warrant
Shares to be listed or quoted on such other Trading Market as promptly as possible. During the Exchange Act Registration Period, the
Company will take all commercially reasonable actions necessary to continue the listing and trading of its Common Shares on a Trading
Market in each of Canada and the United States and will comply in all material respects with the Company’s reporting, filing and
other obligations under the bylaws or rules of each such Trading Market. The Company agrees to use commercially reasonable efforts to
maintain the eligibility of the Common Shares for electronic transfer through the Depository Trust Company or another established clearing
corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing
corporation in connection with such electronic transfer.
4.20 Subsequent
Equity Sales.
(a) From
the date hereof until sixty (60) days after the Closing Date, without the prior written consent of the Representative, neither the Company
nor any Subsidiary shall (i) issue, enter into any agreement to issue or announce the issuance or proposed issuance of any Common Shares
or Common Share Equivalents or (ii) file any registration statement or amendment or supplement thereto, other than the Prospectus Supplement
or filing a registration statement on Form S-8 in connection with any employee benefit plan.
(b) From
the date hereof until six (6) months after the Closing Date, the Company shall be prohibited from effecting or entering into an agreement
to effect any issuance by the Company or any of its Subsidiaries of Common Shares or Common Share Equivalents (or a combination of units
thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company
(i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to
receive, additional Common Shares either (A) at a conversion price, exercise price or exchange rate or other price that is based upon,
and/or varies with, the trading prices of or quotations for the Common Shares at any time after the initial issuance of such debt or
equity securities or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial
issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the
business of the Company or the market for the Common Shares (but excluding standard stock split, stock combination or other similar adjustment
provisions) or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit,
whereby the Company may issue securities at a future determined price. For the avoidance of doubt, a “Variable Rate Transaction”
includes any “at-the-market” offering other than that certain at-the-market equity offering program (the “ATM”),
with Craig-Hallum Capital Group LLC, which shall be expressly excluded from the definition of Variable Rate Transaction. Any Underwriter
shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to
any right to collect damages.
(c) Notwithstanding
the foregoing, this Section 4.20 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall be
an Exempt Issuance.
4.21 Research
Independence. The Company acknowledges that each Underwriter’s research analysts and research departments, if any, are required
to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and
that such Underwriter’s research analysts may hold and make statements or investment recommendations and/or publish research reports
with respect to the Company and/or the Offering that differ from the views of its investment bankers. The Company hereby waives and releases,
to the fullest extent permitted by law, any claims that the Company may have against such Underwriter with respect to any conflict of
interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be
different from or inconsistent with the views or advice communicated to the Company by such Underwriter’s investment banking divisions.
The Company acknowledges that the Representative is a full service securities firm and as such from time to time, subject to applicable
securities laws, may effect transactions for its own account or the account of their customers and hold long or short position in debt
or equity securities of the Company.
4.22 Right
of First Refusal. Upon the Closing, for a period of twelve (12) months from the Closing the Company grants the Representative the
right of first refusal to act as sole managing underwriter and sole book runner, sole placement agent, or sole sales agent, for any and
all future public or private equity, equity-linked, convertible or debt securities (excluding, for the avoidance of doubt, commercial
bank debt) offerings for which the Company retains the service of an underwriter, agent, advisor, finder or other person or entity in
connection with such offering during such twelve (12) month period of the Company, or any successor to or any subsidiary of the Company,
excluding the PGA Financing, the IBK Financings and the ATM (each as defined in the Engagement Agreement (as defined below)) and a financing
solely with LMR Partners. The Company shall not offer to retain any entity or person in connection with any such offering on terms more
favorable than terms on which it offers to retain the Representative. Such offer shall be made in writing in order to be effective. The
Representative shall notify the Company within five (5) business days of its receipt of the written offer contemplated above as to whether
or not it agrees to accept such retention. If the Representative should decline such retention, the Company shall have no further obligations
to the Representative with respect to the specific offering for which it has offered to retain the Representative, except as otherwise
provided for herein.
4.23 Tail
Period. From the date hereof until six (6) months after the Closing Date, if the Company completes any financing of equity, equity-linked,
convertible or debt or other capital raising activity with, or receives any proceeds from, any of the investors that (i) are contacted
or introduced by the Representative on behalf of the Company in connection with the Offering other than LMR Partners, (ii) subsequent
to written request by the Company, are identified in writing to the Company during the course of the Representative’s efforts in
respect of the Offering, (iii) either participate in a one-on-one or group meeting (either in person, over the telephone, teleconference,
or other electronic means) with management of the Company relating to the Offering or are wall crossed by a Representative, and (iv)
subsequent to written request from the Company, are set forth on a final written list delivered to the Company not later than five (5)
business days following the Closing (the “Specified Investors”), then the Company will pay the Representative upon
the closing of such financing or receipt of such proceeds the compensation set forth in 2.1(b) herein.
ARTICLE
V.
DEFAULT
BY UNDERWRITERS
If
on the Closing Date or any Option Closing Date, if any, any Underwriter shall fail to purchase and pay for the portion of the Closing
Securities or Option Securities which such Underwriter has agreed to purchase and pay for on such date (otherwise than by reason of any
default on the part of the Company), the Representative, or if a Representative is the defaulting Underwriter, the non-defaulting Underwriters,
shall use their reasonable efforts to procure within thirty-six (36) hours thereafter one or more of the other Underwriters, or any others,
to purchase from the Company such amounts as may be agreed upon and upon the terms set forth herein, the Closing Securities or Option
Securities, as the case may be, which the defaulting Underwriter or Underwriters failed to purchase. If during such thirty-six (36) hours
the Representative shall not have procured such other Underwriters, or any others, to purchase the Closing Securities or Option Securities,
as the case may be, agreed to be purchased by the defaulting Underwriter or Underwriters, then (a) if the aggregate number of Closing
Securities or Option Securities, as the case may be, with respect to which such default shall occur does not exceed 10% of the Closing
Securities or Option Securities, as the case may be, covered hereby, the other Underwriters shall be obligated, severally, in proportion
to the respective numbers of Closing Securities or Option Securities, as the case may be, which they are obligated to purchase hereunder,
to purchase the Closing Securities or Option Securities, as the case may be, which such defaulting Underwriter or Underwriters failed
to purchase, or (b) if the aggregate number of Closing Securities or Option Securities, as the case may be, with respect to which such
default shall occur exceeds 10% of the Closing Securities or Option Securities, as the case may be, covered hereby, the Company or the
Representative will have the right to terminate this Agreement without liability on the part of the non-defaulting Underwriters or of
the Company except to the extent provided in Article VI hereof. In the event of a default by any Underwriter or Underwriters, as set
forth in this Article V, the applicable Closing Date may be postponed for such period, not exceeding seven (7) days, as the Representative,
or if a Representative is the defaulting Underwriter, the non-defaulting Underwriters, may determine in order that the required changes
in the Prospectus or in any other documents or arrangements may be effected. The term “Underwriter” includes any Person substituted
for a defaulting Underwriter. Any action taken under this Article V shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
ARTICLE
VI.
INDEMNIFICATION
6.1 Indemnification
of the Underwriters. Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless the Underwriters,
and each dealer selected by each Underwriter that participates in the offer and sale of the Public Securities (each a “Selected
Dealer”) and each of their respective directors, officers and employees and each Person, if any, who controls such Underwriter
or any Selected Dealer (“Controlling Person”) within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, against any and all losses, liabilities, claims, damages and expenses whatsoever (including, but not limited to,
any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, whether arising out of any Action between such Underwriter and the Company or between such Underwriter
and any third party or otherwise) to which they or any of them may become subject under the Securities Act, the Exchange Act, applicable
Canadian securities laws or any other statute or at common law or otherwise or under the laws of foreign countries, arising out of or
based upon any untrue statement or alleged untrue statement of a material fact contained in (i) the Registration Statement, the Prospectus
or the Prospectus Supplement (as from time to time each may be amended and supplemented); (ii) any materials or information provided
to investors by, or with the approval of, the Company in connection with the marketing of the Offering of the Public Securities, including
any “road show” or investor presentations made to investors by the Company (whether in person or electronically); or (iii)
any application or other document or written communication (in this Article VI, collectively called “application”)
executed by the Company or based upon written information furnished by the Company in any jurisdiction in order to qualify the Public
Securities under the securities laws thereof or filed with the Commissions, any state, provincial or territorial securities commission
or agency, Trading Markets or any securities exchange; or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading,
unless, in each case, such statement or omission was made in reliance upon and in conformity with written information furnished to the
Company with respect to the applicable Underwriter by or on behalf of such Underwriter expressly for use in the Registration Statement,
the Prospectus or the Prospectus Supplement, or any amendment or supplement thereto, or in any application, as the case may be. With
respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary Prospectus Supplement, if
any, the indemnity agreement contained in this Section 6.1 shall not inure to the benefit of an Underwriter to the extent that any loss,
liability, claim, damage or expense of such Underwriter results from the fact that a copy of the preliminary Prospectus Supplement was
not given or sent to the Person asserting any such loss, liability, claim or damage at or prior to the written confirmation of sale of
the Public Securities to such Person as required by the Securities Act and the rules and regulations thereunder, and if the untrue statement
or omission has been corrected in the final Prospectus Supplement, unless such failure to deliver the Prospectus was a result of non-compliance
by the Company with its obligations under this Agreement. The Company agrees to promptly notify each Underwriter of the commencement
of any litigation or Proceedings against the Company or any of its officers, directors or Controlling Persons in connection with the
issue and sale of the Public Securities or in connection with the Registration Statement or the Prospectus.
6.2 Procedure.
If any Action is brought against an Underwriter, a Selected Dealer or a Controlling Person in respect of which indemnity may be sought
against the Company pursuant to Section 6.1, such Underwriter, such Selected Dealer or such Controlling Person, as the case may be, shall
promptly notify the Company in writing of the institution of such Action, and the Company shall assume the defense of such Action, including
the employment and fees of one (1) firm of attorneys (in addition to local counsel, if applicable) (subject to the reasonable approval
of such Underwriter or such Selected Dealer, as the case may be) and payment of actual expenses. Such Underwriter, such Selected Dealer
or such Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such Underwriter, such Selected Dealer or such Controlling Person unless (i) the employment of such
counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such Action,
or (ii) the Company shall not have employed counsel to have charge of the defense of such Action, or (iii) such indemnified party or
parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to
those available to any other Underwriter, or (iv) such indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those available to the Company (in which case the Company
shall not have the right to direct the defense of such Action on behalf of the indemnified party or parties), in any of which events
the reasonable fees and expenses of not more than one additional firm of attorneys selected by such Underwriter (in addition to local
counsel), Selected Dealer and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained
herein, if any Underwriter, Selected Dealer or Controlling Person shall assume the defense of such Action as provided above, the Company
shall have the right to approve the terms of any settlement of such Action, which approval shall not be unreasonably withheld.
6.3 Indemnification
of the Company. Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company, its directors, officers
and employees and agents who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act (the “Company Indemnitees”) against any and all losses, liabilities, claims, damages and expenses described in
the foregoing indemnity from the Company to such Underwriter, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions made in the Registration Statement or the Prospectus or any amendment or supplement thereto or
in any application, in reliance upon, and in strict conformity with, written information furnished to the Company with respect to such
Underwriter by or on behalf of such Underwriter expressly for use in the Registration Statement or the Prospectus or any amendment or
supplement thereto or in any such application. In case any Action shall be brought against the Company or any other Person so indemnified
based on the Registration Statement or the Prospectus or any amendment or supplement thereto or any application, and in respect of which
indemnity may be sought against such Underwriter, such Underwriter shall have the rights and duties given to the Company, and the Company
and each other Person so indemnified shall have the rights and duties given to such Underwriter by the provisions of this Article VI.
Notwithstanding the provisions of this Section 6.3, no Underwriter shall be required to indemnify any Company Indemnitee for any amount
in excess of the underwriting discounts and commissions applicable to the Public Securities purchased by such Underwriter. The Underwriters’
obligations in this Section 6.3 to indemnify the Company Indemnitees are several in proportion to their respective underwriting obligations
and not joint.
6.4 Contribution.
(a) Contribution
Rights. In order to provide for just and equitable contribution in any case in which (i) any Person entitled to indemnification under
this Article VI makes a claim for indemnification pursuant hereto but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that this Article VI provides for indemnification in such case,
or (ii) contribution under the Securities Act, the Exchange Act, applicable Canadian securities laws or otherwise may be required on
the part of any such Person in circumstances for which indemnification is provided under this Article VI, then, and in each such case,
the Company and each Underwriter, severally and not jointly, shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the Company and such Underwriter, as incurred, in such proportions
that such Underwriter is responsible for that portion represented by the percentage that the underwriting discount appearing on the cover
page of the Prospectus bears to the initial offering price appearing thereon and the Company is responsible for the balance; provided,
that, no Person guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 6.4, each director,
officer and employee of such Underwriter or the Company, as applicable, and each Person, if any, who controls such Underwriter or the
Company, as applicable, within the meaning of Section 15 of the Securities Act shall have the same rights to contribution as such Underwriter
or the Company, as applicable. Notwithstanding the provisions of this Section 6.4, no Underwriter shall be required to contribute any
amount in excess of the underwriting discounts and commissions applicable to the Public Securities purchased by such Underwriter. The
Underwriters’ obligations in this Section 6.4 to contribute are several in proportion to their respective underwriting obligations
and not joint.
(b) Contribution
Procedure. Within fifteen (15) days after receipt by any party to this Agreement (or its representative) of notice of the commencement
of any Action, suit or Proceeding, such party will, if a claim for contribution in respect thereof is to be made against another party
(“Contributing Party”), notify the Contributing Party of the commencement thereof, but the failure to so notify the
Contributing Party will not relieve it from any liability which it may have to any other party other than for contribution hereunder.
In case any such Action, suit or Proceeding is brought against any party, and such party notifies a Contributing Party or its representative
of the commencement thereof within the aforesaid fifteen (15) days, the Contributing Party will be entitled to participate therein with
the notifying party and any other Contributing Party similarly notified. Any such Contributing Party shall not be liable to any party
seeking contribution on account of any settlement of any claim, Action or Proceeding affected by such party seeking contribution without
the written consent of such Contributing Party. The contribution provisions contained in this Section 6.4 are intended to supersede,
to the extent permitted by law, any right to contribution under the Securities Act, the Exchange Act, applicable Canadian securities
laws or otherwise available.
ARTICLE
VII.
MISCELLANEOUS
7.1 Termination.
(a) Termination
Right. The Representative shall have the right to terminate this Agreement at any time prior to any Closing Date, (i) if any domestic
or international event or act or occurrence has materially disrupted, or in its opinion, arrived at acting reasonably, will in the immediate
future materially disrupt, general securities markets in the United States or Canada, or (ii) if trading on any Trading Market shall
have been suspended or materially limited, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required by FINRA or by order of any Commission or any other government authority having jurisdiction,
or (iii) if the United States and/or Canada shall have become involved in a new war or an increase in major hostilities, which will,
in the Representative’s reasonable opinion, make it inadvisable to proceed with the offering or the sale and/or delivery of the
Public Securities, or (iv) if a banking moratorium has been declared by a New York State, Canadian or other federal authority, or (v)
if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States or Canadian securities
markets, or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage
or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representative’s opinion,
make it inadvisable to proceed with the delivery of the Public Securities, or (vii) if the Company is in material breach of any of its
representations, warranties or covenants hereunder, or (viii) if the Representative shall have become aware after the date hereof of
a previously undisclosed material adverse change in the conditions or prospects of the Company, or an adverse material change in general
market conditions such as in the Representative’s reasonable judgment would make it impracticable to proceed with the offering,
sale and/or delivery of the Public Securities or to enforce contracts made by the Underwriters for the sale of the Public Securities.
(b) Expenses.
In the event this Agreement shall be terminated pursuant to Section 7.1(a), within the time specified herein or any extensions thereof
pursuant to the terms herein, the Company shall be obligated to pay to the Representative its actual and accountable out of pocket expenses
related to the transactions contemplated herein then due and payable, including the fees and disbursements of counsel to the Representative
up to $25,000 (provided, however, that any expense caps included herein in no way limits or impairs the indemnification
and contribution provisions of this Agreement).
(c) Indemnification.
Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination of this Agreement, and
whether or not this Agreement is otherwise carried out, the provisions of Article VI shall not be in any way effected by such election
or termination or failure to carry out the terms of this Agreement or any part hereof.
7.2 Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, and the Prospectus Supplement contain the
entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings,
oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
Notwithstanding anything herein to the contrary, the Engagement Agreement, dated September 1, 2023 (the “Engagement Agreement”),
by and among the Company, the Representative and the other party signatory thereto, shall continue to be effective and the terms therein
shall continue to survive and be enforceable by the Representative in accordance with its terms; provided that, in the event of a conflict
between the terms of the Engagement Agreement and this Agreement, the terms of this Agreement shall prevail.
7.3 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via e-mail
attachment at the email address set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading
Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered via e-mail attachment at the
e-mail address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York
City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address
for such notices and communications shall be as set forth on the signature pages attached hereto.
7.4 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in
the case of an amendment, by the Company and the Representative. No waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver
of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder
in any manner impair the exercise of any such right.
7.5 Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any
of the provisions hereof.
7.6 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
7.7 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with
any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents),
and hereby irrevocably waives, and agrees not to assert in any Action, suit or Proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such Action, suit or Proceeding is improper or is an inconvenient venue for such Proceeding.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such Action, suit or Proceeding
by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address
in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted
by law. If either party shall commence an Action, suit or Proceeding to enforce any provisions of the Transaction Documents, then, in
addition to the obligations of the Company under Article VI, the prevailing party in such Action, suit or Proceeding shall be reimbursed
by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such Action, suit or Proceeding. In addition to, and without limiting the foregoing, the Company confirms that it
has appointed CT Corporation System as its agent for service (the “Authorized Agent”) upon whom process may be served
in any suit, Action or Proceeding arising out of or based upon this Agreement or the Transaction Documents or the transactions contemplated
herein which may be instituted in any New York federal or state court by the Representative, the directors, officers, partners, employees
and agents of the Representative and each affiliate of the Representative, and expressly accepts the non-exclusive jurisdiction of any
such court in respect of any such suit, Action or Proceeding. The Company hereby represents and warrants that the Authorized Agent has
accepted such appointment and has agreed to act as said agent for service of process, and the Company agrees to take any and all commercially
reasonable action, including the filing of any and all documents that may be necessary, to continue such appointment in full force and
effect as aforesaid. The Company hereby authorizes and directs the Authorized Agent to accept such service of process. Service of process
upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Company. If the Authorized Agent shall
cease to act as the Company’s agent for service of process, the Company shall appoint, without unreasonable delay, another such
agent in the United States and notify the Representtives of such appointment. This paragraph shall survive any termination of this Agreement,
in whole or in part.
7.8 Survival.
The representations and warranties contained herein shall survive the Closing and the Option Closing, if any, and the delivery of the
Public Securities.
7.9 Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery of a “.pdf”
format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such “.pdf” signature page were an original thereof.
7.10 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
7.11 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, the Underwriters
and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and
hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law
would be adequate.
7.12 Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted
herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
7.13 Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to
share prices and Common Shares in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock
dividends, stock combinations and other similar transactions of the Common Shares that occur after the date of this Agreement.
7.14 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST
EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVE FOREVER ANY RIGHT TO TRIAL BY
JURY.
(Signature
Pages Follow)
If
the foregoing correctly sets forth the understanding between the Underwriters and the Company, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding agreement among the Company and the several Underwriters in
accordance with its terms.
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Very
truly yours, |
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|
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POET
Technologies Inc. |
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|
|
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By: |
/s/
Thomas R. Mika |
| |
Name: |
Thomas
R. Mika |
| |
Title: |
Chief
Financial Officer |
| Address
for Notice: |
|
Copy
to: |
|
|
| |
|
|
|
|
POET
Technologies Inc.
120
Eglinton Avenue East, Suite 1107
Toronto,
Ontario M4P 1E2
Attn:
Suresh Venkatesan
Email:
svv@poet-technologies.com |
|
Katten
Muchin Rosenman LLP
525
W. Monroe Street
Chicago,
Illinois 60661
Attn:
Mark Wood
Email:
mark.wood@katten.com |
|
Bennett
Jones LLP
3400
One First Canadian Place, 100 King Street West
Toronto,
Ontario M5X 1A4
Attn:
Christopher Doucet
Email:
doucetc@bennettjones.com |
Accepted
on the date first above written.
MAXIM
Group LLC
As
a Representative of the several Underwriters listed on Schedule I
| By: |
/s/
Cliff Teller |
|
| Name: |
Cliff
Teller |
|
| Title: |
Co-President |
|
| Address
for Notice: |
|
Copy
to: |
| |
|
|
|
|
| |
300
Park Avenue, 16th Floor
New
York, NY 10022
Attention:
James Siegel, General Counsel
Email: jsiegel@maximgrp.com
|
|
|
Ellenoff
Grossman & Schole LLP
1345
Avenue of the Americas
New
York, New York 10105
E-mail:
mbernstein@egsllp.com
Attention:
Matthew Bernstein |
SCHEDULE
I
Schedule
of Underwriters
| Underwriters | |
Closing Shares | | |
Closing Warrants | | |
Closing Purchase Price | |
| Maxim Group LLC | |
| 1,600,000 | | |
| 1,600,000 | | |
$ | 1,339,200.00 | |
| Total | |
| 1,600,000 | | |
| 1,600,000 | | |
$ | 1,339,200.00 | |
Exhibit
A
IP
Officer’s Certificate
Exhibit
B
Officer’s
Certificate
Exhibit
C
Secretary’s
Certificate
Exhibit
D
Form
of Lock-Up
LOCK-UP
AGREEMENT
November
30, 2023
Maxim
Group LLC,
acting
as representative to the several underwriters:
| |
Re: |
Underwriting
Agreement, dated November 30, 2023 (the “Underwriting Agreement”), among POET Technologies Inc. and the several
underwriters named on Schedule I thereto |
Ladies
and Gentlemen:
Defined
terms used but not otherwise defined in this letter agreement (the “Letter Agreement”) shall have the meanings set
forth in the Underwriting Agreement. The undersigned irrevocably agrees with POET Technologies Inc., a corporation existing under the
laws of the Province of Ontario, Canada (the “Company”), for sixty (60) days (such period, the “Restriction
Period”) following the date of the Underwriting Agreement (the “Underwriting Agreement”) entered into between
the Company and Maxim Group LLC, acting as representative (the “Representative”) of the several underwriters named
on Schedule I thereto, and the underwriters, collectively, the “Underwriters” and each, an “Underwriter”),
that the undersigned will not offer, sell, contract to sell, hypothecate, pledge or otherwise dispose of (or enter into any transaction
which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the undersigned or any Affiliate of the undersigned), directly or indirectly, or
establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to, any Common Shares of the
Company or securities convertible, exchangeable or exercisable into, Common Shares of the Company beneficially owned, held or hereafter
acquired by the undersigned (the “Securities”). The Representative may, in its sole and absolute discretion, consent
to an early release from the Restriction Period or other waiver of the terms hereof.
Notwithstanding
the foregoing, the undersigned may transfer the undersigned’s Securities:
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i) |
as
a bona fide gift or gifts; |
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ii) |
to
any immediate family member or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the
undersigned (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, marriage
or adoption, not more remote than first cousin); |
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|
|
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iii) |
by
operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement; |
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iv) |
to
any corporation, partnership, limited liability company, or other business entity all of the equity holders of which consist of the
undersigned and/or the immediate family of the undersigned; |
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v) |
if
the undersigned is a corporation, partnership, limited liability company, trust or other business entity (a) to another corporation,
partnership, limited liability company, trust or other business entity that is a direct or indirect Affiliate of the undersigned
and/or the immediate family of the undersigned or (b) in the form of a distribution of Securities to limited partners, limited liability
company members, trust beneficiaries or stockholders of the undersigned and/or the immediate family of the undersigned; |
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vi) |
if
the undersigned is a trust, to the beneficiary of such trust; |
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vii) |
by
will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate
family of the undersigned; |
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viii) |
to
the Company pursuant to any contractual arrangement that provides for the repurchase of the undersigned’s Securities by the
Company or in connection with the termination of the undersigned’s employment or other service relationship with the Company; |
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ix) |
to
the Company (a) as forfeitures to satisfy tax withholding obligations of the undersigned in connection with the vesting or exercise
of equity awards outstanding pursuant to the Company’s equity incentive plans or outstanding warrants or (b) to cover the exercise
price of outstanding options or warrants;
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x) |
pursuant
to the Underwriting Agreement; or |
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xi) |
pursuant
to waiver received in writing from the Representative; |
provided
that, with respect to any such transfers pursuant to clauses (i) through (vi), that (a) the Company receives a signed lock-up letter
agreement (substantially in the form of this Letter Agreement) for the balance of the Restriction Period from each donee, trustee, distributee,
or transferee, as the case may be, prior to such transfer and (b) any such transfer shall not involve a disposition for value.
In
addition, notwithstanding the foregoing, this Letter Agreement shall not restrict (a) the delivery of Securities to the undersigned upon
(i) exercise, conversion, settlement or exchange (including by means of a cashless or net exercise) of any awards granted under any equity
incentive plan of the Company or any warrants, rights or other convertible securities outstanding on the date hereof; provided
that any Securities acquired in connection with any such exercise, conversion, settlement or exchange will be subject to the restrictions
set forth in this Letter Agreement, (b) entering into any new plan established in compliance with Rule 10b5-1 of the Exchange Act or
an Automatic Securities Disposition Plan in accordance with Canadian securities laws, or transfers of Securities or Common Shares pursuant
to a plan that satisfies all of the requirements of Rule 10b5-1 under the Exchange Act or an Automatic Securities Disposition Plan in
accordance with Canadian securities laws (and any related filings in connection with such sale or disposition that are required under
the Exchange Act or Canadian securities laws); (c) transfers of Securities pursuant to any bona fide third party tender offer, merger,
consolidation, amalgamation or other similar transaction made to all holders of the Company’s capital stock involving a change
of control of the Company which is approved by the Company’s Board of Directors (including, without limitation, the entering into
any lock-up, voting or similar agreement pursuant to which the undersigned may agree to transfer, sell, tender or otherwise dispose of
Common Shares or other securities in connection with such transaction, or vote any Common Shares or other such securities in favor of
any such transaction); provided, that in the event such tender offer, merger, consolidation or other such transaction is
not completed, the undersigned’s Securities shall remain subject to the terms of this Letter Agreement; or (d) transfers to
any corporation, partnership, limited liability company or other entity with whom the transferor shares in common an investment manager
or advisor, in each case, who has investment discretionary authority with respect to the transferor’s and such other entity’s
investments pursuant to an investment management, investment advisory or similar agreement; provided, that it shall be a
condition to such transfer or disposition that the donee, trustee, heir, distributee or other transferee, as the case may be, agrees
to be bound in writing to the restrictions set forth herein during the Restriction Period.
In
furtherance of the foregoing, the Company and its transfer agent and registrar are hereby authorized to decline to make any transfer
of Securities if such transfer would constitute a violation or breach of this Letter Agreement.
The
undersigned acknowledges that the execution, delivery and performance of this Letter Agreement is a material inducement to each Underwriter
to perform under the Underwriting Agreement and that the Company shall be entitled to specific performance of the undersigned’s
obligations hereunder. The undersigned hereby represents that the undersigned has the power and authority to execute, deliver and perform
this Letter Agreement, that the undersigned has received adequate consideration therefor and that the undersigned will indirectly benefit
from the closing of the transactions contemplated by the Underwriting Agreement.
This
Letter Agreement may not be amended or otherwise modified in any respect without the written consent of each of the Company, the Representative
and the undersigned. This Letter Agreement shall be construed and enforced in accordance with the laws of the State of New York without
regard to the principles of conflict of laws thereof to the extent such principles would result in the application of the laws of another
jurisdiction. The undersigned hereby irrevocably submits to the exclusive jurisdiction of the United States District Court sitting in
the Southern District of New York and the courts of the State of New York located in Manhattan, for the purposes of any suit, action
or proceeding arising out of or relating to this Letter Agreement, and hereby waives, and agrees not to assert in any such suit, action
or proceeding, any claim that (i) the undersigned is not personally subject to the jurisdiction of such court, (ii) the suit, action
or proceeding is brought in an inconvenient forum, or (iii) the venue of the suit, action or proceeding is improper. The undersigned
hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by
receiving a copy thereof sent to the Company at the address in effect for notices to it under the Underwriting Agreement and agrees that
such service shall constitute good and sufficient service of process and notice thereof. The undersigned hereby waives any right to a
trial by jury. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.
The undersigned agrees and understands that this Letter Agreement does not create, and is not intended to create, any relationship between
the undersigned and each Underwriter (or any of them) and that no issuance or sale of the Securities has occurred or is intended by virtue
of this Letter Agreement.
This
Letter Agreement shall be binding on successors and assigns of the undersigned with respect to the Securities and any such successor
or assign shall enter into a similar agreement for the benefit of the Underwriters. This Letter Agreement is intended for the benefit
of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provisions hereof
be enforced by, any other Person.
The
undersigned understands that the undersigned shall be released from all obligations under this Letter Agreement if (a) the Company notifies
the Representative that it does not intend to proceed with the Offering, (b) the Underwriting Agreement does not become effective, or
if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to
payment for and delivery of the Securities to be sold thereunder or (c) the Offering is not completed by December 8, 2023.
***
SIGNATURE PAGE FOLLOWS***
This
Letter Agreement may be executed electronically (or delivered by other electronic transmission) and in two or more counterparts, all
of which when taken together shall be considered one and the same agreement.
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| Signature |
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| Print
Name |
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| Position
in Company, if any |
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| Number
of Common Shares subject to this Letter Agreement |
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| Number
of Warrants subject to this Letter Agreement |
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| Address
for Notice: |
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As
of the date set forth above: |
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| POET
Technologies Inc. |
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| By: |
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| Name: |
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| Title: |
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Exhibit
E
Form
of Warrant
[SEPARATELY PROVIDED]
Exhibit
F
Chief
Financial Officer’s Certificate
Exhibit
4.1
COMMON
SHARE PURCHASE WARRANT
POET
Technologies Inc.
| Warrant
Shares: _______ |
Initial
Exercise Date: _______ |
THIS
COMMON SHARE PURCHASE WARRANT (this “Warrant”) certifies that, for value received, _____________ or its assigns (the
“Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set
forth, at any time on or after the date hereof (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York
City time) on _______ (the “Termination Date”) but not thereafter, to subscribe for and purchase from POET
Technologies Inc., a corporation existing under laws of the Province of Ontario, Canada (the “Company”), up to ______
Common Shares (as subject to adjustment hereunder, the “Warrant Shares”). The purchase price of one Common Share under
this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section
1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated
in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally
are open for use by customers on such day.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Shares” means the common shares of the Company, no par value, and any other class of securities into which such securities
may hereafter be reclassified or changed.
“Common
Share Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Shares, including, without limitation, any debt, preferred shares, right, option, warrant or other instrument that
is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Shares.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Registration
Statement” means the Company’s registration statement on Form F-3 (File No. 333-273853).
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof.
“Trading
Day” means a day on which the Common Shares are traded on a Trading Market.
“Trading
Market” means any of the following markets or exchanges on which the Common Shares are listed or quoted for trading on the
date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York
Stock Exchange, the Toronto Stock Exchange or the TSX Venture Exchange (or any successors to any of the foregoing).
“Transfer
Agent” means Computershare Inc., a Delaware corporation, and its affiliate, Computershare Trust Company, N.A., a federally
chartered trust company, and any successor transfer agent of the Company.
“Underwriting
Agreement” means the underwriting agreement, dated as of November 30, 2023, by and between the Company and Maxim Group LLC,
as representative of the underwriters named therein, as amended, modified or supplemented from time to time in accordance with its terms.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Shares are then listed
on a Trading Market that is a U.S. national securities exchange or quoted on a Trading Market, the daily volume weighted average price
per share of the Common Shares for such date (or the nearest preceding date) on the Trading Market on which the Common Shares are then
listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)),
(b) if the Common Shares are not listed on a Trading Market that is a U.S. national securities exchange but are quoted on the OTCQB or
OTCQX, the volume weighted average price per share of the Common Shares for such date (or the nearest preceding date) on the OTCQB or
OTCQX, as applicable, on such date, (c) if the Common Shares are not then listed or quoted for trading on a Trading Market and if prices
for the Common Shares are then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting
prices), the most recent bid price per Common Share so reported, or (d) in all other cases, the fair market value of a Common Share as
determined by an independent appraiser selected in good faith by the Purchasers of a majority in interest of the Securities then outstanding
and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Warrants”
means this Warrant and other Common Share purchase warrants issued by the Company pursuant to the Registration Statement.
Section
2. Exercise.
a)
Exercise of Warrant. Subject to the provisions of Section 2(e) herein, exercise of the purchase rights represented by this Warrant
may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by
delivery to the Company of a duly executed PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form
annexed hereto (the “Notice of Exercise”). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading
Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the
Holder shall deliver the aggregate Exercise Price for the shares specified in the applicable Notice of Exercise by wire transfer or cashier’s
check drawn on a United States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable
Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee
or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and
this Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within
three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant
resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding
number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and
the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver
any objection to any Notice of Exercise within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance
of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the
Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount
stated on the face hereof.
b)
Exercise Price; Voluntary Adjustment by the Company. The exercise price per Common Share under this Warrant shall be $1.12, subject
to adjustment hereunder (the “Exercise Price”). Subject to the rules and regulations of the Trading Market, the Company
may, at any time while this Warrant is outstanding, reduce the then-current Exercise Price to any amount and for any period of time deemed
appropriate by the board of directors of the Company in its sole discretion.
c)
Cashless Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus
contained therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may also be exercised, in
whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number
of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| |
(A)
= |
as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of
Exercise is delivered pursuant to Section 2(a) hereof (1) on a day that is not a Trading Day or (2) on a Trading Day either (x) prior
to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal
securities laws) on such Trading Day, or (y) during “regular trading hours” on such Trading Day or (ii) the VWAP on the
date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is
delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
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|
|
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(B)
= |
the
Exercise Price of this Warrant, as adjusted hereunder; and |
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|
|
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(X)
= |
the
number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such
exercise were by means of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the Warrant Shares shall take on the registered characteristics of this Warrant. The Company agrees not to take any position
contrary to this Section 2(c).
Notwithstanding
anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant
to this Section 2(c) if the VWAP on the Termination Date is greater than the Exercise Price as then in effect.
i. Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company (“DTC”) through its Deposit/Withdrawal at Custodian system (“DWAC”) if the Transfer Agent is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the later of (i) the earlier of (x) two (2) Trading Days after the delivery to the Company of the Notice of Exercise and (y) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise, and (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Shares on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Shares as in effect on the date of delivery of the Notice of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 12:00 p.m. (New York City time) on the Initial Exercise Date, which may be delivered at any time after the time of execution of the Underwriting Agreement, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date.
ii.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of
the Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new
Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant
shall in all other respects be identical with this Warrant.
iii. Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise. Upon any rescission of an exercise, the Company’s obligations in respect of such exercise, including, without limitation, any obligation to issue the applicable Warrant Shares and any obligation to pay any cash damages in respect of any days on or after the date of such rescission, shall terminate.
iv.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to
the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, Common
Shares to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise
(a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the Common Shares so purchased exceeds (y) the amount obtained by
multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at
issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the
Holder, either reinstate the portion of this Warrant and equivalent number of Warrant Shares for which such exercise was not honored
(in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of Common Shares that would have been issued
had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common Shares
having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of Common Shares with an aggregate sale
price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be
required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in
respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s
right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to timely deliver Common Shares upon exercise of this
Warrant as required pursuant to the terms hereof.
v.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.
vi.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company,
and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company
shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to DTC (or another established
clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii.
Closing of Books. The Company will not close its shareholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
e)
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and the Holder shall not have
the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such
issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and
any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution
Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the
foregoing sentence, the number of Common Shares beneficially owned by the Holder and its Affiliates and Attribution Parties shall include
the number of Common Shares issuable upon exercise of this Warrant with respect to which such determination is being made, but shall
exclude the number of Common Shares which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any other Common Share Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to
other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2(e), in determining the number of outstanding Common Shares, the Holder may rely on the number
of outstanding Common Shares as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission,
as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer
Agent setting forth the number of Common Shares outstanding. Upon the written or oral request of a Holder, the Company shall within one
Trading Day confirm orally and in writing to the Holder the number of Common Shares then outstanding. In any case, the number of outstanding
Common Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant,
by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding Common Shares was reported.
The “Beneficial Ownership Limitation” shall be 4.99% of the number of Common Shares outstanding immediately after
giving effect to the issuance of Common Shares issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase
or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in
no event exceeds 9.99% of the number of Common Shares outstanding immediately after giving effect to the issuance of Common Shares upon
exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial
Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The provisions
of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e)
to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation
herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations
contained in this paragraph shall apply to a successor holder of this Warrant.
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on its Common Shares or any other equity or equity equivalent securities payable in Common Shares
(which, for avoidance of doubt, shall not include any Common Shares issued by the Company upon exercise of this Warrant), (ii) subdivides
outstanding Common Shares into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding Common
Shares into a smaller number of shares, or (iv) issues by reclassification of Common Shares any capital shares of the Company, then,
in each case, the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of Common Shares (excluding
treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of Common Shares
outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted
such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall
become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution
(provided, that such adjustment shall be reversed if such dividend or distribution is terminated prior to the making thereof) and shall
become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
b)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants,
issues or sells any Common Share Equivalents or rights to purchase shares, warrants, securities or other property pro rata to the record
holders of any class of Common Shares (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the
terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the
number of Common Shares acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including
without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance
or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Common Shares are to be determined
for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that the Holder’s right to participate
in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled
to participate in such Purchase Right to such extent (or beneficial ownership of such Common Shares as a result of such Purchase Right
to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right
thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
c)
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or
other distribution of its assets (or rights to acquire its assets) to holders of Common Shares, by way of return of capital or otherwise
(including, without limitation, any distribution of cash, shares or other securities, property or options by way of a dividend, spin
off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution
to the same extent that the Holder would have participated therein if the Holder had held the number of Common Shares acquirable upon
complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of Common Shares are to be determined for the participation in such Distribution (provided,
however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent
(or in the beneficial ownership of any Common Shares as a result of such Distribution to such extent) and the portion of such Distribution
shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder
exceeding the Beneficial Ownership Limitation). To the extent that this Warrant has not been partially or completely exercised at the
time of such Distribution, such portion of the Distribution shall be held in abeyance for the benefit of the Holder until the Holder
has exercised this Warrant.
d)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or
more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company or any Subsidiary,
directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange
offer (whether by the Company or another Person) is completed pursuant to which holders of Common Shares are permitted to sell, tender
or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding
Common Shares or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one
or more related transactions effects any reclassification, reorganization or recapitalization of the Common Shares or any compulsory
share exchange pursuant to which the Common Shares are effectively converted into or exchanged for other securities, cash or property,
or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with
another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding Common Shares or 50% or
more of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then subject to the
prior approval of the TSX Venture Exchange, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive,
for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction,
at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of Common
Shares of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration
(the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of
Common Shares for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation
in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be
appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of
one Common Share in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration
in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common
Shares are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall
be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction.
The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor
Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of
this Section 3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder
(without unreasonable condition or delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the
Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form
and substance to this Warrant which is exercisable for a corresponding number of capital shares of capital stock of such Successor Entity
(or its parent entity) equivalent to the Common Shares acquirable and receivable upon exercise of this Warrant (without regard to any
limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise
price hereunder to such shares of capital stock (but taking into account the relative value of the Common Shares pursuant to such Fundamental
Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the
purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and
which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor
Entity shall be added to the term “Company” under this Warrant (so that from and after the occurrence or consummation of
such Fundamental Transaction, each and every provision of this Warrant and the other Transaction Documents referring to the “Company”
shall refer instead to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor
Entity or Successor Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto
and the Successor Entity or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant and
the other Transaction Documents with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally,
had been named as the Company herein. For the avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this
Section 3(d) regardless of (i) whether the Company has sufficient authorized Common Shares for the issuance of Warrant Shares and/or
(ii) whether a Fundamental Transaction occurs prior to the Initial Exercise Date.
e)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the
case may be. For purposes of this Section 3, the number of Common Shares deemed to be issued and outstanding as of a given date shall
be the sum of the number of Common Shares (excluding treasury shares, if any) issued and outstanding.
f)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the approval of any shareholders of the Company shall be required in connection with
any reclassification of the Common Shares, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party,
any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Shares are converted
into other securities, cash or property, or (B) the Company shall authorize the voluntary or involuntary dissolution, liquidation or
winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last
email address as it shall appear upon the Warrant Register of the Company, at least 10 calendar days prior to the applicable record or
effective date hereinafter specified, a notice stating the date on which such reclassification, consolidation, merger, sale, transfer
or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Shares
of record shall be entitled to exchange their Common Shares for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in
the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that
any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries,
the Company shall substantially contemporaneously file such notice with the Commission pursuant to a report on Form 6-K or 8-K, as applicable.
The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date
of the event triggering such notice except as may otherwise be expressly set forth herein.
Section
4. Transfer of Warrant.
a)
Transferability. This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable,
in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written
assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient
to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not
so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall
surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the
Company assigning this Warrant in full. This Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for
the purchase of Warrant Shares without having a new Warrant issued.
b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of
the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by
the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Initial Exercise Date and
shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the
“Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
Section
5. Miscellaneous.
a)
No Rights as Shareholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a shareholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of the Holder to receive Warrant Shares on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be
required to net cash settle an exercise of this Warrant.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that, upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any share certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it, and upon surrender and cancellation
of such Warrant or share certificate, if mutilated, the Company will make and deliver a new Warrant or share certificate of like tenor
and dated as of such cancellation, in lieu of such Warrant or share certificate.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
d)
Authorized Shares.
The
Company covenants that, during the period this Warrant is outstanding, it will reserve from its authorized and unissued Common Shares
a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with
the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all
such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Trading Market on which the Common Shares are listed. The Company covenants
that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise
of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly
issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be reasonably
necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality
of the foregoing, the Company will (i) take all such action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (ii) use commercially reasonable
efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may
be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e)
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Warrant (whether brought against a party hereto or their respective Affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York.
Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York,
Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient
venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant,
the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
f)
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and
the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision
of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material
damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h)
Notices. Any and all notices or other communications or deliveries to be provided by the Holder hereunder including, without limitation,
any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by Federal Express or another nationally recognized
overnight courier service, addressed to the Company, at 120 Eglinton Avenue East, Suite 1107, Toronto, Ontario M4P 1E2, Attention: Suresh
Venkatesan, email address: svv@poet-technologies.com , or such other email address or address as the Company may specify for such purposes
by notice to the Holder. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in
writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at
the e-mail address or address of such Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder
shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via
e-mail at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day
after the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section
on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the Trading Day on which the
notice is deposited with Federal Express or another nationally recognized overnight courier service, if sent by Federal Express or another
nationally recognized overnight courier or (iv) upon actual receipt by the party to whom such notice is required to be given. To the
extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries,
the Company shall simultaneously file such notice with the Commission pursuant to a report on Form 6-K or 8-K, as applicable.
i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Common Shares or as a shareholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance by the Company of its rights under this Warrant. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive
and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by the Holder or holder of Warrant Shares.
l)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and
the Holder.
m)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
n)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
o)
Representations of Holder. The Holder of this Warrant, by its acceptance hereof, acknowledges and agrees that each delivery of
a Notice of Exercise (i) at a time at which there is no effective registration statement registering, or the prospectus contained therein
is not available for, the issuance of the Warrant Shares to the Holder and (ii) where the exercise is not being effected via cashless
exercise pursuant to Section 2(c) (an “Unregistered Cash Exercise”), shall constitute a representation that the Holder
(A) is an “accredited investor” as such term is defined in Rule 501(a)(3) of Regulation D promulgated by the United States
Securities and Exchange Commission under the Securities Act and (B) will acquire the applicable Warrant Shares for its own account and
not with a view towards, or for resale in connection with, the public sale or distribution of such Warrant Shares, except pursuant to
sales registered or exempted under the Securities Act, unless contemporaneous with the delivery of such Notice of Exercise the Holder
notifies the Company in writing that it is not making such representations. Without limiting the foregoing, it shall be a condition to
any Unregistered Cash Exercise, and the Company’s obligations set forth in Section 2 in connection with such exercise, that the
Company receive such other representations and documentation (which may include a legal opinion) as the Company and/or the Transfer Agent
considers reasonably necessary to assure the Company that the issuance of its securities upon exercise of this Warrant shall not violate
any United States or state securities laws.
p)
Currency. All references to currency herein shall be deemed to refer to United States dollars.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
| |
POET
Technologies Inc. |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
NOTICE
OF EXERCISE
To:
POET Technologies Inc.
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
[
] in lawful money of the United States; or
[
] if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: ________________________________________________________________________
Signature
of Authorized Signatory of Investing Entity: _________________________________________________
Name
of Authorized Signatory: ___________________________________________________________________
Title
of Authorized Signatory: ____________________________________________________________________
Date:
________________________________________________________________________________________
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
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| Phone
Number: |
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| Email
Address: |
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| Dated:
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| Holder’s
Signature: ________________________ |
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| Holder’s
Address: _________________________ |
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Exhibit
5.1
December
4, 2023
Maxim
Group LLC
300
Park Avenue, 16th Floor
New
York, NY 10022
Dear
Sirs/Mesdames:
Re:
POET Technologies Inc. – U.S. Prospectus Supplement Offering up to 1,600,000 Common Shares and 1,600,000 Warrants
We
have acted as counsel in Canada to POET Technologies Inc. (the “Corporation”) in connection with the public offering
(“Offering”) of 1,600,000 of the Corporation’s common shares, without par value (“Common Shares”)
and 1,600,000 common share purchase warrants (the “Warrants”) with a combined purchase price for one Common Share
and one Warrant of US$0.90 (the “Offering Price”) for aggregate proceeds to the Corporation of US$1,440,000 (not including
the Over-Allotment Option (as defined below)), pursuant to the terms of an underwriting agreement dated November 30, 2023 (the “Underwriting
Agreement”) between the Corporation and Maxim Group LLC (the “Underwriter”). Each Warrant entitles the holder
thereof to acquire one common share of the Corporation (each, a “Warrant Share”) at an exercise price of US$1.12 per
Warrant Share for a period of 5 years from the date of issuance. The Offering Price shall be allocated: (i) $0.8999999 for each Common
Share (the “Share Purchase Price”); and (ii) $0.0000001 for each Warrant (the “Warrant Purchase Price”).
Pursuant to the Offering, the Corporation has also granted to the Underwriter an option (the “Over-Allotment Option”)
exercisable in whole or in part time until the date which is 45 days after the date of the Underwriting Agreement, to purchase, in the
aggregate, up to 240,000 Common Shares and/or 240,000 Warrants at the Share Purchase Price and Warrant Purchase Price, respectively.
The
Offering will be made in the United States pursuant to a Registration Statement on Form F-3 (File No. 333-273853) (the “Registration
Statement”) filed with the U.S. Securities and Exchange Commission (the “SEC”) under the United States Securities
Act of 1933 (the “Act”), as amended, and declared effective on August 18, 2023, the base prospectus included in the
Registration Statement (the “Shelf Prospectus”), and a prospectus supplement to the Shelf Prospectus, dated November
30, 2023 (the “Prospectus Supplement” and, together with the Shelf Prospectus, the “Prospectus”)
relating to the Common Shares and Warrants, including the Common Shares and Warrants subject to the Over-Allotment Option, filed with
the SEC pursuant to Rule 424(b)(5) of the Act. The Offering will be conducted only in the United States.
This
opinion is being delivered pursuant to Section 2.3(iii) of the Underwriting Agreement. All capitalized terms used herein but not otherwise
defined shall have the meaning ascribed to such terms in the Underwriting Agreement.
Whenever
our opinion refers to Common Shares, whether issued or to be issued, as being “fully paid non-assessable shares”, such opinion
indicates that the holder of such Common Shares cannot be required to contribute any further amounts to the Corporation by virtue of
its status as a holder of such shares, either in order to complete payment for the Common Shares, to satisfy claims of creditors or otherwise.
No opinion is expressed as to actual receipt by the Corporation of the consideration for the issuance of such Common Shares or as to
the adequacy of any consideration received.
In
connection with rendering this opinion, we have, among other things:
| 1. | participated
in the preparation of: |
| (a) | the
Underwriting Agreement, which agreement is governed by the laws of the State of New York; |
| | | |
| (b) | the
form of warrant certificate (the “Warrant Certificate”), which is governed
by the laws of the State of New York; |
| 2. | examined,
among other things, |
| (a) | a
certified copy dated December 4, 2023 of the articles of incorporation and by-laws
of the Corporation (the “Certified Constating Documents”); |
| | | |
| (b) | a
certificate of good standing dated December 4, 2023 (the “Certificate of Status”)
issued by the Registrar of Companies for Ontario pursuant to the Business Corporations
Act (Ontario) (the “OBCA”) relating to the Corporation; |
| | | |
| (c) | a
certified copy dated December 4, 2023 of the resolutions passed by the directors of the Corporation
or a committee or committees thereof, as applicable, (i) approving, among other things, the
Prospectus Supplement and the filing thereof, and the terms of the Offering, (ii) authorizing
the execution and delivery of the Underwriting Agreement by the Corporation and the performance
by the Corporation of its obligations thereunder, and (iii) authorizing the issue of Common
Shares and Warrants pursuant to the Offering (the “Certified Resolutions”); |
| | | |
| (d) | copies
of the Shelf Prospectus and Prospectus Supplement; |
| | | |
| (e) | an
executed copy of the Underwriting Agreement; |
| | | |
| (f) | a
letter dated November 30, 2023 (the “Conditional Listing Letter”) from
the TSX Venture Exchange (the “TSXV”) conditionally accepting notice for
filing in respect of the Offering, subject to the fulfillment of the conditions therein; |
| | | |
| (g) | a
certificate dated December 4, 2023 of an officer of the Corporation (the “Officer’s
Certificate”) with respect to certain factual matters; and |
| 3. | considered
such questions of law, made such investigations and examined such originals, facsimiles or
copies, certified or otherwise identified to our satisfaction, of such additional public
and corporate records, records of corporate proceedings, certificates and other documents
as we have considered relevant or necessary in order to render the opinions expressed below. |
The
opinions expressed herein are subject to the following exceptions, qualifications and assumptions:
| (a) | we
have assumed, with respect to all of the documents examined by us, the genuineness of all
signatures, the legal capacity at all relevant times of any individual signing any of such
documents, the authenticity and completeness of all documents submitted to us as originals,
the conformity to authentic originals of all documents submitted to us as a certified or
true copy or as a reproduction (including facsimiles) and the truthfulness and accuracy of
the corporate records of the Corporation and of all certificates of public officials and
officers of the Corporation; |
| | | |
| (b) | we
have assumed that the representations and warranties of the Underwriter set forth in the
Underwriting Agreement are true, correct and accurate in all respects and that the Underwriter
will effect the Offering and distribution of the Common Shares and Warrants pursuant to the
Offering in accordance with the terms thereof; |
| | | |
| (c) | we
have assumed that the Underwriter and each other person involved in the distribution of the
Common Shares and Warrants, to the extent necessary, have complied with all laws applicable
to each of them in connection with the Offering; |
| | | |
| (d) | we
have assumed that at the time of any distribution of or trade in the applicable securities
of the Corporation, there is no order or ruling in effect that restricts any trade in such
securities or that affects any person or company who engages in such a trade; |
| | | |
| (e) | in
rendering the opinion expressed in the first sentence of paragraph 1 hereof, we have relied
exclusively, without independent investigation, upon the Certificate of Status, a copy of
which is being delivered with this opinion, and have assumed that the Certificate of Status
remains accurate as of the date hereof; |
| | | |
| (f) | as
to certain factual matters relating to the Corporation, we have relied exclusively and without
independent investigation upon the Officer’s Certificate, the Certified Constating
Documents and the Certified Resolutions, a copy of each of which is being delivered with
this opinion; and |
| | | |
| (g) | in
rendering the opinion expressed in paragraph 9 hereof we have relied exclusively and without
independent investigation upon the Conditional Listing Letter. |
We
are solicitors qualified to practice law in Ontario, and we express no opinion as to the laws of any jurisdiction, or as to any matters
governed by the laws of any jurisdiction, other than the laws of the province of Ontario and the federal laws of Canada applicable therein.
Based
on and relying upon the foregoing and subject to the qualifications hereinbefore and hereinafter set forth, we are of the opinion that:
| 1. | The
Corporation is a corporation existing under the OBCA and has not been dissolved. |
| | |
| 2. | The
Corporation has the corporate power and capacity to execute, deliver and perform its obligations
under the Underwriting Agreement and the Warrants. |
| | |
| 3. | All
necessary corporate action has been taken by the Corporation to authorize the execution and
delivery of the Underwriting Agreement and the Warrants, the filing of the Prospectus Supplement
and the Underwriting Agreement with the SEC, and the performance of its obligations under
the Underwriting Agreement, including the issuance of the Common Shares, Warrants and Warrant
Shares. |
| 4. | The
execution and delivery of the Underwriting Agreement, the performance by the Corporation
of its obligations thereunder and the consummation of the transactions contemplated by the
Underwriting Agreement and the Prospectus Supplement do not and will not conflict with or
result in a breach or violation of any of the terms and provisions of: |
| (a) | the
articles or by-laws of the Corporation or resolutions of the directors or shareholders of
the Corporation; |
| | | |
| (b) | to
our knowledge, any judgment, decree, order, statute, rule or regulation applicable to the
Corporation of any Canadian court or judicial, regulatory or other legal or governmental
agency or body; or |
| | | |
| (c) | any
of the terms or provisions of any statute, rule or regulation of Ontario or the federal laws
of Canada applicable therein applicable to the Corporation. |
| 5. | The
holders of the outstanding common shares of the Corporation are not entitled to subscribe
for the Common Shares pursuant to pre-emptive or similar rights under the Corporation’s
articles of incorporation, as amended, or by-laws. |
| | |
| 6. | The
Common Shares issuable and deliverable under the Underwriting Agreement have been validly
authorized and will, when issued in accordance with the terms of the Underwriting Agreement,
including the receipt of the consideration therefor in accordance with the terms of the Underwriting
Agreement, be validly issued as fully paid and non-assessable common shares of the Corporation. |
| | |
| 7. | The
Warrants issuable and deliverable under the Underwriting Agreement have been validly authorized
and will, when issued in accordance with the terms of the Underwriting Agreement, including
the receipt of the consideration therefor in accordance with the terms of the Underwriting
Agreement, be validly issued in accordance with the provisions of the Warrant Certificate. |
| | |
| 8. | The
Warrant Shares have been authorized and reserved for issuance to the holders of the Warrants
and upon exercise of the Warrants in accordance with the provisions of the Warrant Certificate,
including the payment of the exercise price therefor, the Warrant Shares will be validly
issued as fully paid and non-assessable common shares of the Corporation. |
| | |
| 9. | The
outstanding Common Shares are listed on the TSXV. The Common Shares and the Warrant Shares
have been conditionally approved for listing on the TSXV subject to the satisfaction of the
listing conditions. |
This
opinion relates exclusively to the transaction outlined above and is for the sole use and benefit of the persons to whom it is addressed.
Accordingly, this opinion or any copy hereof, may not be delivered to, or relied upon, by any other person or used in connection with
any other transaction without our prior written consent. This opinion is limited to the matters stated herein, and no opinion or belief
is implied or may be inferred beyond the matters expressly stated herein. Notwithstanding the foregoing, Katten Muchin Rosenman LLP is
expressly authorized to rely upon this opinion for purposes of delivering a legal opinion or reliance letter in favour of the Underwriter,
dated of even date herewith.
Yours
truly,
/s/
Bennett Jones LLP
Bennett
Jones LLP
Exhibit
5.2
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 |
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525
W. Monroe Street |
| |
Chicago,
IL 60661-3693 |
| |
+1.312.902.5200
tel |
| |
katten.com |
December
4, 2023
POET
Technologies Inc.
Suite
1107
120
Eglinton Avenue East
Toronto,
Ontario, M4P 1E2, Canada
| |
Re: |
POET Technologies Inc. |
| |
|
Securities Registered Under
Registration Statement on Form F-3 |
Ladies
and Gentlemen:
We
have acted as special U.S. counsel to POET Technologies Inc., a corporation organized under the Business Corporations Act (Ontario) (the
“Company”), in connection with the preparation of a registration statement on Form F-3 (File No. 333-273853) (the
“Registration Statement”), including the base prospectus filed as part thereof (the “Base Prospectus”),
which was filed by the Company with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities
Act of 1933, as amended (the “Act”), and declared effective by the Commission on August 18, 2023, and a prospectus
supplement to the Base Prospectus, dated November 30, 2023 (the “Prospectus Supplement,” and, together with the Base
Prospectus and the documents incorporated by reference in the Base Prospectus and the Prospectus Supplement, the “Prospectus”),
which was filed with the Commission under the Act with respect to the sale by the Company, as contemplated by the Underwriting Agreement
(as defined below), of an aggregate of 1,600,000 common shares of the Company, without par value (the “Common Shares”),
and warrants (the “Warrants”) to purchase up to an aggregate of 1,600,000 Common Shares (the “Warrant Shares”)
(or up to 1,840,000 Common Shares and/or Warrants to purchase up to 1,840,000 Common Shares if the Over-Allotment Option (as defined
in the Underwriting Agreement (as hereinafter defined)) is fully exercised) pursuant to the terms of an Underwriting Agreement, dated
as of November 30, 2023 (the “Underwriting Agreement”), by and between the Company and Maxim Group LLC, as the representative
of the several underwriters, if any, named in Schedule 1 thereto (the “Underwriters”). This opinion is being
furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act in respect of the Warrants.
KATTEN
MUCHIN ROSENMAN LLP
CENTURY
CITY CHARLOTTE CHICAGO DALLAS
LOS ANGELES
NEW YORK ORANGE COUNTY SHANGHAI WASHINGTON,
DC
A
limited liability partnership including professional corporations
LONDON:
KATTEN MUCHIN ROSENMAN UK LLP
POET
Technologies Inc.
Page
2
In
connection with this opinion, we have relied as to matters of fact, without investigation, upon certificates of public officials and
officers of the Company. We have also relied, to the extent we have determined such reliance to be appropriate, without independent investigation
and with the permission of Bennett Jones LLP, on the opinion of Bennett Jones LLP of even date herewith, as Ontario counsel to the Company,
which will be filed as an exhibit to the report on Form 6-K referenced below. We have also examined originals or copies, certified or
otherwise identified to our satisfaction, of such instruments, documents and records as we have deemed relevant and necessary to examine
for the purpose of this opinion, including (i) the Registration Statement, (ii) the Prospectus, (iii) written consents and other records
of proceedings and actions of the Company’s board of directors (the “Board of Directors”) and the pricing committee
established by the Board of Directors relating to, as applicable, the Registration Statement, the Prospectus, the Underwriting Agreement
and related matters, (iv) the Underwriting Agreement, and (v) the form of common share purchase warrant attached as Exhibit E to the
Underwriting Agreement.
In
connection with this opinion, we have assumed, without independent investigation and at all applicable times, the legal capacity of all
natural persons, the accuracy and completeness of all documents and records that we have reviewed, the genuineness of all signatures,
the due authority of the parties signing such documents, the authenticity of the documents submitted to us as originals and the conformity
to authentic original documents of all documents submitted to us as certified, conformed or reproduced copies. We have assumed that the
Company is, and at all times will be, duly organized and in good standing under the laws of Ontario and has or will have the corporate
power and authority to enter into, to deliver, and to perform its obligations under and, in respect of, the Warrants, and under and in
respect of all agreements and instruments under which any such Warrants shall be offered or issued. With respect to documents executed
or to be executed by parties other than the Company, we have assumed that such other parties had or will have the power and authority,
corporate or other, to enter into and to perform all of their respective obligations thereunder and have also assumed the valid existence
of such other parties, the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties
of such documents and the validity and binding effect thereof on such other parties.
Our
opinions set forth below are subject to (i) the effects of bankruptcy, insolvency, reorganization, receivership, moratorium or other
laws affecting the rights and remedies of creditors generally (including, without limitation, the effect of statutory and other laws
regarding fraudulent conveyances, fraudulent transfers and preferential transfers), (ii) the exercise of judicial discretion and the
application of principles of equity, good faith, fair dealing, reasonableness, conscionability and materiality (regardless of whether
the enforceability of the Warrants, to the extent applicable, is considered in a proceeding at law or in equity), (iii) the possible
unenforceability of indemnity, exculpation and contribution provisions, (iv) the effect and possible unenforceability of choice of law
provisions, (v) the possible unenforceability of provisions purporting to waive rights or defenses where such waiver is against public
policy, (vi) the possible unenforceability of provisions purporting to exonerate any party for negligence or malfeasance, or to negate
any remedy of any party for fraud, (vii) the possible unenforceability of forum selection clauses, (viii) the possible unenforceability
of provisions permitting modification of an agreement only in writing, and (ix) the possible unenforceability of provisions purporting
to allow action without regard to mitigation of damages.
POET
Technologies Inc.
Page
3
On
the basis of the foregoing and the other matters set forth herein, we hereby are of the opinion that the Warrants, when issued and delivered
against payment of consideration as contemplated therein, in accordance with the Underwriting Agreement and in the manner described in
the Prospectus Supplement, will constitute binding obligations of the Company, in accordance with their terms.
Our
opinions expressed above are subject to all of the limitations and qualifications contained herein. Our opinions expressed above are
limited to the laws of the State of New York, and we do not express any opinion herein concerning any other law. We express no opinion
herein concerning any Common Shares or Warrant Shares, the authorization, delivery and issuance of which will be governed by Canadian
law or the laws of a province thereof. This opinion is given as of the date hereof, and we assume no obligation to advise you of changes
that may thereafter occur or be brought to our attention.
We
hereby consent to the filing of this opinion with the Commission as an exhibit to a report on Form 6-K of the Company. We also consent
to the reference to our firm under the caption “Legal Matters” in the Prospectus, which constitutes a part of the Registration
Statement. In giving this consent, we do not thereby admit that we are experts within the meaning of Section 11 of the Act or included
in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
| |
Very
truly yours, |
| |
|
| |
/s/
KATTEN MUCHIN ROSENMAN LLP |
| |
KATTEN
MUCHIN ROSENMAN LLP |
Exhibit
99.1
POET
Technologies Announces Closing of US$1.6 Million Underwritten Public Offering of Common Shares and Warrants
TORONTO,
ONTARIO, Dec 4, 2023 (GLOBE NEWSWIRE) — POET Technologies Inc. (“POET” or the “Company”) (TSX Venture:
PTK; NASDAQ: POET), the designer and developer of the POET Optical Interposer™, Photonic Integrated Circuits (PICs) and light sources
for the data center, tele-communication and artificial intelligence markets, today announced the closing of its previously announced
underwritten public offering in the United States (the “Offering”). The Offering consisted of 1,600,000 common shares of
the Company and warrants to purchase up to 1,600,000 common shares of the Company at a combined public offering price of US$0.90 (CAD$1.22)
per common share and accompanying warrant. Each warrant has an exercise price of US$1.12 (CAD$1.52) per common share and is exercisable
for five years from the date of issuance. In addition, the Company granted the underwriter a 45 day option to purchase up to an additional
240,000 common shares and/or warrants to purchase up to an additional 240,000 common shares at the public offering price in any combination,
less underwriting discounts and commissions, which the underwriter has partially exercised to purchase 186,000 additional common shares
and additional warrants to purchase up to 186,000 common shares.
The
gross proceeds of the Offering to the Company, before underwriting discounts and commissions and offering expenses, were approximately
$1.6 million.
Maxim
Group LLC acted as sole book-running manager for the Offering.
POET
currently intends to use the net proceeds from the Offering for general working capital purposes, including revenue expansion and the
development and production of photonic modules for AI and related markets.
The
Offering was made pursuant to an effective shelf registration statement on Form F-3 (File No. 333-273853) previously filed with the U.S.
Securities and Exchange Commission (the “SEC”) on August 9, 2023 and declared effective on August 18, 2023. The securities
in the Offering were offered in the United States only by means of a prospectus. A final prospectus supplement and the accompanying prospectus
relating to and describing the terms of the Offering has been filed with the SEC, form a part of the effective registration statement
and are available on the SEC’s website at www.sec.gov. Copies of the final prospectus supplement and accompanying prospectus
relating to the Offering may also be obtained by contacting Maxim Group LLC at 300 Park Avenue, 16th Floor, New York, NY 10022, Attention:
Syndicate Department, by telephone at (212) 895-3745 or by email at syndicate@maximgrp.com. Before you invest, you should read
the preliminary prospectus supplement and accompanying prospectus and the other documents that POET has filed with the SEC for more complete
information about POET and the Offering.
This
press release does not constitute an offer to sell or the solicitation of an offer to buy these securities, nor shall there be any sale
of these securities in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration
or qualification under the securities laws of any such state or other jurisdiction.
About
POET Technologies Inc.
POET
is a design and development company offering integration solutions based on the POET Optical Interposer™, a novel platform that
allows the seamless integration of electronic and photonic devices into a single multi-chip module using advanced wafer-level semiconductor
manufacturing techniques and packaging methods. POET’s Optical Interposer eliminates costly components and labor-intensive assembly,
alignment, burn-in and testing methods employed in conventional photonics. The cost-efficient integration scheme and scalability of the
POET Optical Interposer brings value to any device or system that integrates electronics and photonics, including some of the highest
growth areas of computing, such as Artificial Intelligence (AI), the Internet of Things (IoT), autonomous vehicles and high-speed networking
for cloud service providers and data centers. POET is headquartered in Toronto, with operations in Allentown, PA, Shenzhen, China and
Singapore. More information may be obtained at www.poet-technologies.com.
Forward-Looking
Statements
This
press release contains “forward-looking information” (within the meaning of applicable Canadian securities laws) and “forward-looking
statements” (within the meaning of the U.S. Private Securities Litigation Reform Act of 1995). Such statements or information are
identified with words such as “anticipate”, “believe”, “expect”, “plan”, “intend”,
“potential”, “estimate”, “propose”, “project”, “outlook”, “foresee”
or similar words suggesting future outcomes or statements regarding an outlook. Such information and statements include the Company’s
anticipated use of the net proceeds of the public offering (if any).
Such
forward-looking information or statements are based on a number of risks, uncertainties and assumptions which may cause actual results
or other expectations to differ materially from those anticipated and which may prove to be incorrect. Assumptions have been made regarding,
among other things, the Company’s intended use of proceeds from the Offeringmanagement’s expectations regarding the success
of the Company’s announced products, the timing of completion of its development efforts, the successful implementation of its
optical engine or light source products, the success of its customers’ products, the capabilities of its operations, including
its joint venture, and the Company’s ability to correctly gauge market needs and to produce products in the required amounts and
on a timely basis. Actual results could differ materially due to a number of factors, including, without limitation, the dilutive effects
of the Offering, market conditions, the failure of the Company’s products to meet performance requirements, the failure to produce
products on a timely basis or at all, the failure of the Company’s optical engine or light source products to be incorporated into
its customers’ products, the failure of its customers’ products to achieve market penetration, operational risks including
the ability to attract key personnel, the Company’s ability to raise additional capital if necessary and the other risks described
in the “Risk Factors” section in the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022,
as updated from time to time in the Company’s filings with the SEC. Although the Company believes that the expectations reflected
in the forward-looking information or statements are reasonable, prospective investors in the Company’s securities should not place
undue reliance on forward-looking information and statements because the Company can provide no assurance that such expectations will
prove to be correct. Forward-looking information and statements contained in this press release are as of the date of this press release,
and the Company assumes no obligation to update or revise this forward-looking information and statements except as required by law.
Contacts:
| Media
Relations Contact: |
Company
Contact: |
| Adrian
Brijbassi |
Thomas
R. Mika, EVP & CFO |
| adrian.brijbassi@poet-technologies.com |
tm@poet-technologies.com |
Neither
TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts
responsibility for the adequacy or accuracy of this release.
120 Eglinton Avenue, East, Suite 1107, Toronto, ON, M4P 1E2- Tel: 416-368-9411 - Fax: 416-322-507
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