Filed Pursuant to Rule 424(b)(5)
Registration
Statement No. 333-227498
The information in this preliminary
prospectus supplement is not complete and may be changed. We may not sell these
securities until the registration statement filed with the Securities and
Exchange Commission is effective. This preliminary prospectus supplement is not
an offer to sell these securities and it is not soliciting an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED October
17, 2018
Prospectus Supplement
(To Prospectus dated October
4, 2018)
IntelGenx Technologies Corp.
Up
to Units
Each Unit Consisting of One Share of Common Stock
and
One Half of One Warrant to Purchase One Share of Common Stock
We are offering up to units (the Units). Each Unit consists of one share of our common stock (the
Common Stock) and one half of one warrant, each whole warrant to purchase one
whole share of Common Stock at an exercise price of per share (each whole
warrant, a Warrant and such offering, the Offering). The Warrants will be
immediately exercisable and will expire on the year anniversary of the issuance
date. The shares of Common Stock and Warrants comprising the Units are
immediately separable and will be issued separately in this Offering.
Our Common Stock is quoted on the OTCQX under the symbol IGXT
and on the TSX Venture Exchange (the TSX-V) under the symbol IGX. The
closing price of our Common Stock as quoted on the OTCQX on October 16, 2018 was
$0.85, and the closing price of our Common Stock on the TSX-V on October 16,
2018 was CDN $1.10. There is no trading market for the Warrants and we do not
intend to list the Warrants on any national securities exchange or quotation
system. Without an active market, the liquidity of the Warrants will be limited.
We are also offering the shares of Common Stock that are
issuable from time to time upon exercise of the Warrants being offered by this
prospectus supplement. This Offering is being made on a best efforts basis.
Investing in our securities involves a high degree of risk.
You should invest in the Common Stock only if you can afford to lose your entire
investment. See Risk Factors beginning on page S-11.
We have engaged H.C. Wainwright & Co., LLC (Wainwright or
the placement agent) to act as our exclusive placement agent in the United
States in connection with this Offering. Wainwright is not purchasing or selling
the securities offered by us, and is not required to sell any specific number or
dollar amount of securities, but will use its reasonable best efforts to arrange
for the sale of the securities offered. We have agreed to pay Wainwright a
placement fee equal to 7% of the aggregate gross proceeds to us from the sale of
the securities in the Offering in the United States, subject to reduction to
3.5% of the aggregate gross proceeds to us from the sale of securities to
certain identified investors only, plus additional compensation to the placement
agent as described under Plan of Distribution. Wainwright may engage one or
more sub-agents or selected dealers in connection with this Offering in the
United States.
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Per Unit
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Total
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Public offering price
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$
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$
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Placement agent fees (1)
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$
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$
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Proceeds to us, before
expenses
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$
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$
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(1) We have also agreed to issue Common Stock purchase warrants
to the placement agents and to reimburse the placement agents for certain
expenses. We have granted Echelon Wealth Partners Inc. an over-allotment option
(the Over-Allotment Option), exercisable, in whole or in part, at the sole
discretion of Echelon Wealth Partners Inc., at any time prior to 5:00 p.m.
(Montreal time) on the date that is the 30th day after the closing of the
Offering, to purchase additional Units and/or any combination of Common Stock
and/or Warrants in an amount representing up to an
additional 15% of the number of Units sold pursuant to the Offering, at the
public offering price to cover over-allocations, if any, and for market
stabilization purposes. See Plan of Distribution.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus supplement. Any representation
to the contrary is a criminal offense.
The date of this prospectus supplement is October , 2018
H.C. Wainwright & Co.
S-2
CONTENTS
You should rely only on the information contained in this
prospectus supplement, the prospectus and any related free writing prospectus
that we may provide to you in connection with this Offering. We have not
authorized any other person to provide you with different information. If anyone
provides you with different or inconsistent information, you should not rely on
it. We are not making an offer to sell these securities in any jurisdiction
where the offer or sale is not permitted. You should assume that the information
appearing in this prospectus supplement is accurate only as of the date on the
front cover of this prospectus supplement. Our business, financial condition,
results of operations and prospects may have changed since that date. Neither
the delivery of this prospectus supplement nor any sale made in connection with
this prospectus supplement shall, under any circumstances, create any
implication that there has been no change in our affairs since the date of this
prospectus supplement or that the information contained in this prospectus is
correct as of any time after its date.
ABOUT THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS
This document is in two parts. The first part is the prospectus
supplement, including the documents incorporated by reference, which describes
the specific terms of this Offering. The second part, the prospectus, including
the documents incorporated by reference therein, provides more general
information. References to this prospectus may refer to both parts of this
document combined. You are urged to carefully read this prospectus supplement
and the prospectus, and the documents incorporated herein and therein by
reference, before buying any of the Units being offered under this prospectus
supplement. This prospectus supplement may add, update or change information
contained in the prospectus. To the extent that any statement made in this
prospectus supplement is inconsistent with statements made in the prospectus or
any documents incorporated by reference therein, the statements made in this
prospectus supplement will be deemed to modify or supersede those made in the
prospectus and such documents incorporated by reference therein.
We have also filed this prospectus, as supplemented, with the
securities regulatory authorities in each of the Canadian provinces of British
Columbia, Alberta, Manitoba, Ontario and Québec and are offered under such MJDS
prospectus, as supplemented, in such provinces.
Only the information contained or incorporated by reference in
this prospectus supplement and the prospectus should be relied upon. The Company
has not authorized any other person to provide different information. If anyone
provides different or inconsistent information, it should not be relied upon.
The Units offered hereunder may not be offered or sold in any jurisdiction where
the offer or sale is not permitted. It should be assumed that the information
appearing in this prospectus supplement and the prospectus and the documents
incorporated by reference herein are accurate only as of their respective dates.
The Companys business, financial condition, results of operations and prospects
may have changed since those dates.
This prospectus supplement does not constitute, and may not be
used in connection with, an offer to sell, or a solicitation of an offer to buy,
any securities offered by this prospectus supplement by any person in any
jurisdiction in which it is unlawful for such person to make such an offer or
solicitation.
S-4
FORWARD-LOOKING STATEMENTS
Certain statements included or incorporated by reference in
this prospectus supplement constitute forward-looking statements within the
meaning of applicable securities laws. All statements contained in this
registration statement that are not clearly historical in nature are
forward-looking, and the words anticipate, believe, continue, expect,
estimate, intend, may, plan, will, shall and other similar
expressions are generally intended to identify forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934. All forward-looking statements are based on our
beliefs and assumptions based on information available at the time the
assumption was made. These forward-looking statements are not based on
historical facts but on managements expectations regarding future growth,
results of operations, performance, future capital and other expenditures
(including the amount, nature and sources of funding thereof), competitive
advantages, legislative developments, business prospects and opportunities.
Forward-looking statements involve significant known and unknown risks,
uncertainties, assumptions and other factors that may cause our actual results,
levels of activity, performance or achievements to differ materially from those
implied by forward-looking statements. These factors should be considered
carefully and prospective investors should not place undue reliance on the
forward-looking statements. Although the forward-looking statements contained in
this registration statement or incorporated by reference herein are based upon
what management believes to be reasonable assumptions, there is no assurance
that actual results will be consistent with these forward-looking statements.
These forward-looking statements are made as of the date of this registration
statement or as of the date specified in the documents incorporated by reference
herein, as the case may be.
Forward-looking statements relate to analyses and other
information that are based on forecasts of future results, estimates of amounts
not yet determinable and other uncertain events. Forward-looking statements, by
their nature, are based on assumptions, including those described below, and
involve known and unknown risks, uncertainties and other factors that may cause
the actual results, performance or achievements to differ materially from those
expressed in the forward-looking statements. Any forecasts or forward-looking
predictions or statements cannot be relied upon due to, among other things,
changing external events and general uncertainties of the business. Results
indicated in forward-looking statements may differ materially from actual
results for a number of reasons, including without limitation, risks associated
with the ability to obtain sufficient and suitable financing to support
operations, R&D clinical trials and commercialization of products; the
ability to execute partnerships and corporate alliances; uncertainties relating
to the regulatory approval process; uncertainties regarding legislative
developments, including the regulation of edibles containing cannabis in Canada;
the ability to develop drug delivery technologies and manufacturing processes
that result in competitive advantage and commercial viability; the impact of
competitive products and pricing and the ability to successfully compete in the
targeted markets; the successful and timely completion of pre-clinical and
clinical studies; the ability to attract and retain key personnel and key
collaborators; the ability to adequately protect proprietary information and
technology from competitors; and the ability to ensure that we do not infringe
upon the rights of third parties. Material factors or assumptions that were
applied in drawing a conclusion or making an estimate set out in the
forward-looking information include the factors identified throughout this
prospectus supplement. The forward-looking statements contained in this
prospectus supplement represent our expectations as of the date of this
prospectus supplement, and are subject to change after such date. We any
intention or obligation to update or revise any forward-looking statements
whether as a result of new information, future events or otherwise, except as
required under applicable securities regulations.
We undertake no obligation
to update any forward-looking statements to reflect events or circumstances
after the date on which such statements were made or to reflect the occurrence
of unanticipated events, except as may be required by applicable securities
laws.
S-5
PROSPECTUS SUPPLEMENT SUMMARY
This summary highlights selected information contained
elsewhere in this prospectus supplement. To fully understand this Offering, you
should read the entire prospectus carefully, including the more detailed
information regarding our company, the risks of purchasing our Common Stock
discussed under risk factors, and our financial statements and the
accompanying notes. In this prospectus supplement, the words Company,
IntelGenx we, us, and our, refer collectively to IntelGenx Technologies
Corp. and IntelGenx Corp., our wholly-owned Canadian subsidiary.
All amounts are U.S.$ unless otherwise indicated. Unless
otherwise indicated, the term year, fiscal year or fiscal refers to our
fiscal year ending December 31
st
.
Corporate History
Our predecessor company, Big Flash Corp., was incorporated in
Delaware on July 27, 1999. On April 28, 2006, Big Flash, through its Canadian
holding corporation, completed the acquisition of IntelGenx Corp., a Canadian
company incorporated on June 15, 2003. The Company did not have any operations
prior to the acquisition of IntelGenx Corp. In connection with the acquisition,
we changed our name from Big Flash Corp. to IntelGenx Technologies Corp.
IntelGenx Corp. has continued operations as our operating subsidiary.
Our Business
Overview
We are a drug delivery company established in 2003 and
headquartered in Montreal, Quebec, Canada. Our focus is on the development of
novel oral immediate-release and controlled-release products for the
pharmaceutical market. More recently, we have made the strategic decision to
enter the oral film market and have implemented commercial oral film
manufacturing capability. This enables us to offer our partners a comprehensive
portfolio of pharmaceutical services, including pharmaceutical R&D, clinical
monitoring, regulatory support, tech transfer and manufacturing scale-up, and
commercial manufacturing.
Our business strategy is to develop pharmaceutical products
based on our proprietary drug delivery technologies and, once the viability of a
product has been demonstrated, license the commercial rights to partners in the
pharmaceutical industry. In certain cases, we rely upon partners in the
pharmaceutical industry to fund development of the licensed products, complete
the regulatory approval process with the U.S. Food and Drug Administration
(FDA) or other regulatory agencies relating to the licensed products, and
assume responsibility for marketing and distributing such products.
In addition, we may choose to pursue the development of certain
products until the project reaches the marketing and distribution stage. We will
assess the potential for successful development of a product and associated
costs, and then determine at which stage it is most prudent to seek a partner,
balancing such costs against the potential for additional returns earned by
partnering later in the development process.
Managing our project pipeline is a key success factor for the
Company. We have undertaken a strategy under which we will work with
pharmaceutical companies in order to apply our oral film technology to
pharmaceutical products for which patent protection is nearing expiration, a
strategy which is often referred to as lifecycle management. Under §505(b)(2)
of the Food, Drug, and Cosmetics Act, the FDA may grant market exclusivity for a
term of up to three years following approval of a listed drug that contains
previously approved active ingredients but is approved in a new dosage, dosage
form, route of administration or combination.
The 505(b)(2) pathway is also the regulatory approach to be
followed if an applicant intends to file an application for a product containing
a drug that is already approved by the FDA for a certain indication and for
which the applicant is seeking approval for a new indication or for a new use,
the approval of which is required to be supported by new clinical trials, other
than bioavailability studies. We have implemented a strategy under which we
actively look for such so-called repurposing opportunities and determine
whether our proprietary VersaFilm technology adds value to the product. We
currently have two such drug repurposing projects in our development pipeline.
We continue to develop the existing products in our pipeline
and may also perform research and development on other potential products as
opportunities arise.
We have established a state-of-the-art manufacturing facility
with the intent to manufacture all our VersaFilm products in-house as we
believe that this:
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1.
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represents a profitable business opportunity,
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2.
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will reduce our dependency upon third-party contract
manufacturers, thereby protecting our manufacturing process know-how and
intellectual property, and
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3.
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allows us to offer our clients and development partners a
full service from product conception through to supply of the finished
product.
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Recent Developments
On September 20, 2018, we announced that we executed a
non-binding letter of intent (the LOI) with Tilray, Inc. (NASDAQ:TLRY)
(Tilray®), a global leader in cannabis research, cultivation, production and
distribution, to co-develop and commercialize oral film products infused with
recreational and medical cannabis (cannabis-infused VersaFilm), in
anticipation of amended cannabis regulations in Canada which would allow
adult-use consumers to purchase edible products. See Risk Factors.
Subject to
entering into a definitive agreement and the satisfaction of customary closing
conditions, the LOI provides that IntelGenx and Tilray® will fund 20% and 80% of
the costs associated with the development of the cannabis-infused VersaFilm
products, respectively. We will have rights to manufacture and supply the
co-developed products to Tilray®, and will also receive a fixed single-digit
royalty on net product sales. Tilray® will have the exclusive, worldwide
marketing and distribution rights for the co-developed products.
The LOI also contemplates that, at the time of entering into
the definitive agreement, Tilray
®
will make a strategic investment in
IntelGenx by way of a non-brokered private placement (Private Placement).
Tilray
®
will purchase 1,250,000 shares of Common Stock of IntelGenx
at a price of USD$0.80 per share, which was equal to the five-day volume
weighted average closing price of IntelGenx Common Stock on the OTCQX for the
period ended September 18, 2018, being the date of the LOI. IntelGenx intends to
use the proceeds from the Private Placement for cannabis-infused VersaFilm
product development in connection with the LOI. Closing of the Private Placement
is subject to the approval of the TSX-V.
We believe that dissolvable films for the consumption of
marijuana will appeal to both medicinal and recreational markets and that a
significant portion of those likely to use marijuana will find a dissolvable
film appealing, due to its ease-of-use, discreteness and lack of harmful
smoke.
On May 14, 2018, we announced that all patent litigation
between the Company, Par Pharmaceutical, Inc., Indivior, Inc., Indivior UK
Limited, and Aquestive Therapeutics, Inc. (formerly MonoSol Rx, LLC) related to
Suboxone® film has been settled. The settlement agreement permits Par to begin
selling a generic version of Suboxone® film on January 1, 2023, or earlier under
certain circumstances. Par (now Endo Ventures) is the Companys commercial and
development partner for a generic version of Suboxone® sublingual film product,
which is indicated for the treatment of opioid dependence. We will have
exclusive rights to manufacture and supply product to Endo Ventures, while Endo
Ventures will have exclusive rights to market and sell Suboxone supplied by the
Company in the United States.
Our Offices and Other Corporate Information
Our executive offices are located at 6420 Abrams, Ville
Saint-Laurent, Quebec, H4S 1Y2, Canada, and our telephone number is (514)
331-7440. Our web site address is
http://www.IntelGenx.com
. Information
contained on our web site is not a part of this prospectus supplement.
S-7
THE OFFERING
Securities Offered:
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We are offering Units. Each Unit will consist of one
share of our Common Stock and one half of one Warrant, each whole Warrant
to purchase one share of our Common Stock at an exercise price of per
share. The Warrants will be exercisable immediately at an exercise price
of $ per share and will expire on the year anniversary of the date
of issuance. See Description of Securities We Are Offering.
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Offering Price:
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Over-Allotment Option
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We have granted Echelon Wealth Partners Inc. (Echelon) an Over-Allotment
Option, exercisable, in whole or in part, at the sole discretion of
Echelon, at any time prior to 5:00 p.m. (Montreal time) on the
date that is the 30th day after the closing of the Offering, to purchase
additional Units and/or any combination of Common Stock and/or Warrants in an amount representing up to an additional 15% of the
number of Units sold pursuant to the Offering, at the public offering
price to cover over-allocations, if any, and for market stabilization
purposes. See Plan of Distribution.
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Use of Proceeds:
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The net proceeds from the Offering will be used for our
Phase 2a Montelukast study, submission of our Tadalafil 505(b)(2) new drug
application to the FDA, working capital, expansion of our manufacturing
facility, our application for Health Canada approval to manufacture
Suboxone® at the Companys facility and inventory. See Use of Proceeds.
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Common Stock outstanding
prior to the Offering:
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74,000,979
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Shares of Common Stock
outstanding after this
Offering
(1)
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Risk Factors
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See Risk Factors beginning on page 11 and other
information in this prospectus supplement for a discussion of the factors
you should consider before you decide to invest in our securities.
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OTCQX Ticker Symbol for
Common Stock:
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IGXT
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TSX Venture Exchange Symbol
for Common Stock:
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IGX
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Offering in Canada
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The Units and the securities underlying the Units that
are registered on this prospectus supplement and offered hereunder in the
United States are also qualified by an MJDS prospectus, as supplemented, filed with the
securities regulatory authorities in each of the Canadian provinces of
British Columbia, Alberta, Manitoba, Ontario and Québec and are offered
under such MJDS prospectus, as supplemented, in such provinces through
Echelon as placement agent. Echelon is not registered as a broker-dealer
in the United States or any jurisdiction in the United States and,
accordingly, Echelon will only solicit offers to purchase or sell the
Units in Canada and will not, directly or indirectly, solicit or accept
offers to purchase or sell the Units in the United States. Wainwright is
not registered as an investment dealer in any Canadian jurisdiction and,
accordingly, will only solicit offers to purchase or sell the Units in the
United States and will not, directly or indirectly, solicit or accept
offers to purchase or sell the Units in Canada.
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S-8
(1)
The number of shares of Common Stock shown above
to be outstanding after this Offering assumes the sale of all of the Units
offered hereunder, is based on 74,000,979 shares outstanding as of October 15,
2018, 2018 and excludes:
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4,204,818 shares of Common Stock issuable upon exercise of outstanding
stock options, at a weighted average exercise price of $0.68 per share;
-
76,296 additional shares of Common Stock reserved for issuance under a
warrant agreement at an exercise price of $0.5646 per share;
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5,612,594 additional shares of Common Stock issuable upon the conversion
of 7,577,000 debentures under the 2017 unsecured convertible debentures
agreements at a conversion price of CA$1.35 per share;
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2,000,000 additional shares of Common Stock issuable upon the conversion
of 1,600,000 debentures under the 6% convertible notes at a conversion price
of $0.80 per share;
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2,654,075 additional shares of Common Stock reserved for issuance under a
warrant agreements at an exercise price of $0.80 per share;
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649,136 additional shares of Common Stock reserved for future issuance
under our amended and restated 2016 option plan; and
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up to shares of stock exercisable upon exercise of the Warrants offered
hereby.
S-9
SUMMARY HISTORICAL FINANCIAL INFORMATION
The following tables set forth our summary historical financial
information. The selected historical financial information is qualified in its
entirety by, and should be read in conjunction with Managements Discussion and
Analysis of Financial Condition and Results of Operations and our unaudited
consolidated financial statements and related notes incorporated by reference
into this prospectus supplement by reference to our Quarterly Report on Form
10-Q for the quarter ended June 30, 2018 that we filed with the SEC on August 9,
2018.
RESULTS OF OPERATIONS:
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Twelve-month
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Six-month
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period ended
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Period ended
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December 31,
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June 30,
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In thousands
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2017
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2018
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Revenue
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$
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5,195
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$
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473
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Cost of Royalty and License Revenue
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373
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-
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Research and Development Expenses
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2,615
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1,654
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Selling, General and Administrative Expenses
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3,965
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2,602
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Depreciation of tangible assets
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735
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362
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Operating Loss
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(2,493
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)
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(4,145
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)
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Net Loss
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(3,051
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)
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(4,665
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)
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Comprehensive Loss
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(2,669
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)
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(4,773
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)
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BALANCE SHEET:
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December
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June 30,
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In thousands
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31, 2017
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2018
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Current Assets
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$
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6,044
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$
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5,209
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Leasehold improvements and Equipment
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6,346
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6,149
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Security Deposits
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757
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733
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Total Assets
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13,147
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12,091
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Current Liabilities
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2,077
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2,736
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Deferred lease obligations
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50
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50
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Long-term debt
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1,992
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1,539
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Convertible Debentures
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5,199
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|
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5,094
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Convertible Notes
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-
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997
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Total Liabilities
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9,318
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10,416
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Capital Stock
|
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1
|
|
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1
|
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Additional Paid-in-Capital
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25,253
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27,872
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Total Shareholders Equity
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3,829
|
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1,675
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S-10
RISK FACTORS
Our business faces many risks. Any of the risks discussed
below, or elsewhere in this report or in our other filings with the SEC, could
have a material impact on our business, financial condition, or results of
operations.
You should carefully consider the risks described under the
heading, "Risk Factors", in our most recent Annual Report on Form 10-K for the
fiscal year ended December 31, 2017 which are incorporated by reference into
this prospectus supplement before making an investment decision. You should also
refer to the other information in this prospectus supplement or incorporated by
reference into this prospectus supplement, including our financial statements
and the related notes thereto. The risks and uncertainties described in this
prospectus supplement or incorporated by reference into this prospectus
supplement are not the only risks and uncertainties we face. Additional risks
and uncertainties not presently known to us or that we currently deem immaterial
also may impair our business operations. If any of the risks described actually
occur, our business, results of operations and financial condition could suffer.
In that event the trading price of our Common Stock could decline. The risks
described also include forward looking statements and our actual results may
differ substantially from those discussed in these forward-looking
statements.
Risks Related to Our Business
We have a history of losses and our revenues may not be
sufficient to sustain our operations.
Even though we ceased being a development stage company in
April 2006, we are still subject to all of the risks associated with having a
limited operating history and pursuing the development of new products. Our cash
flows may be insufficient to meet expenses relating to our operations and the
development of our business, and may be insufficient to allow us to develop new
products. We currently conduct research and development using our proprietary
platform technologies to develop oral controlled release and other delivery
products. We do not know whether we will be successful in the development of
such products. We have an accumulated deficit of approximately $20.7 million
since our inception in 2003 through December 31, 2017. To date, these losses
have been financed principally through sales of equity securities. Our revenues
for the past five years ended December 31, 2017, December 31, 2016, December 31,
2015, December 31, 2014 and December 31, 2013 were $5.2 million, $5.2 million,
$5.1 million, $1.7 million and $948 thousand respectively. Revenue generated to
date has not been sufficient to sustain our operations. In order to achieve
profitability, our revenue streams will have to increase and there is no
assurance that revenues will increase to such a level.
We face competition in our industry, and several of our
competitors have substantially greater experience and resources than we
do.
We compete with other companies within the drug delivery
industry, many of which have more capital, more extensive research and
development capabilities and greater human resources than we do. Some of these
drug delivery competitors include Aquestive Therapeutics Inc. (formerly Monosol
Rx), Tesa-Labtec GmbH, BioDelivery Sciences International, Inc. and LTS Lohmann
Therapy Systems Corp. Our competitors may develop new or enhanced products or
processes that may be more effective, less expensive, safer or more readily
available than any products or processes that we develop, or they may develop
proprietary positions that prevent us from being able to successfully
commercialize new products or processes that we develop. As a result, our
products or processes may not compete successfully, and research and development
by others may render our products or processes obsolete or uneconomical.
Competition may increase as technological advances are made and commercial
applications broaden.
We have entered into certain non-binding agreements and
there can be no assurance that they materialize into a definitive agreement or
transaction.
Consistent with its past practice and in the normal course, the
Company has outstanding non-binding letters of intent and/or conditional
agreements or may otherwise be engaged in discussions with respect to possible
collaborations, studies, product development or acquisitions which may or may
not be material, including, without limitation, the non-binding letter of intent
dated September 20, 2018 with Tilray
®
. There is no assurance that any
of these letters, agreements and/or discussions will result in a definitive
agreement or, if they do, what the final terms or timing of any such
transactions would be, whether such transactions will generate revenues, be
profitable for the Company, or be well-received by the marketplace.
There is no assurance that the sale of edibles containing
cannabis will be permitted in Canada
Although the Government of Canada has approved the Cannabis Act
which is expected to allow for regulated and restricted access to cannabis for
recreational use in Canada as of October 17, 2018, cannabis edible products are
not currently on the list of products permitted for legal sale in Canada under
the Cannabis Act and there is no assurance that they will be in the future.
Risks Related to Our Securities
The price of our Common Stock could be subject to
significant fluctuations.
Any of the following factors could affect the market price of
our Common Stock:
-
Our failure to achieve and maintain profitability;
-
Changes in earnings estimates and recommendations by financial analysts;
-
Actual or anticipated variations in our quarterly results of operations;
-
Changes in market valuations of similar companies;
-
Announcements by us or our competitors of significant contracts, new
products, acquisitions, commercial relationships, joint ventures or capital
commitments;
-
The loss of major customers or product or component suppliers;
-
The loss of significant partnering relationships; and
-
General market, political and economic conditions.
We have a significant number of convertible securities
outstanding that could be exercised in the future. Subsequent resale of these
and other shares could cause our stock price to decline. This could also make it
more difficult to raise funds at acceptable levels pursuant to future securities
offerings.
Our Common Stock is a high risk investment.
Our Common Stock was quoted on the OTC Bulletin Board under the
symbol IGXT from January 2007 until June 2012 and, subsequent to our upgrade
in June 2012, has been quoted on the OTCQX. Our Common Stock has also been
listed on the TSX-V under the symbol IGX since May 2008.
There is a limited trading market for our Common Stock, which
may affect the ability of stockholders to sell our Common Stock and the prices
at which they may be able to sell our Common Stock.
The market price of our Common Stock has been volatile and
fluctuates widely in response to various factors which are beyond our control.
The price of our Common Stock is not necessarily indicative of our operating
performance or long term business prospects. In addition, the securities markets
have from time to time experienced significant price and volume fluctuations
that are unrelated to the operating performance of particular companies. These
market fluctuations may also materially and adversely affect the market price of
our Common Stock.
As a result of the foregoing, our Common Stock should be
considered a high risk investment.
S-12
The application of the penny stock rules to our Common
Stock could limit the trading and liquidity of our Common Stock, adversely
affect the market price of our Common Stock and increase stockholder transaction
costs to sell those shares.
As long as the trading price of our Common Stock is below $5.00
per share, the open market trading of our Common Stock will be subject to the
penny stock rules, unless we otherwise qualify for an exemption from the
penny stock definition. The penny stock rules impose additional sales
practice requirements on certain broker-dealers who sell securities to persons
other than established customers and accredited investors (generally those with
assets in excess of $1,000,000 or annual income exceeding $200,000 or $300,000
together with their spouse). These regulations, if they apply, require the
delivery, prior to any transaction involving a penny stock, of a disclosure
schedule explaining the penny stock market and the associated risks. Under these
regulations, certain brokers who recommend such securities to persons other than
established customers or certain accredited investors must make a special
written suitability determination regarding such a purchaser and receive such
purchasers written agreement to a transaction prior to sale. These regulations
may have the effect of limiting the trading activity of our Common Stock,
reducing the liquidity of an investment in our Common Stock and increasing the
transaction costs for sales and purchases of our Common Stock as compared to
other securities.
We became public by means of a reverse merger, and as a
result we are subject to the risks associated with the prior activities of the
public company with which we merged.
Additional risks may exist because we became public through a
reverse merger with a shell corporation. Although the shell did not have any
operations or assets and we performed a due diligence review of the public
company, there can be no assurance that we will not be exposed to undisclosed
liabilities resulting from the prior operations of our company.
Our limited cash resources restrict our ability to pay
cash dividends.
Since our inception, we have not paid any cash dividends on our
Common Stock. We currently intend to retain future earnings, if any, to support
operations and to finance the growth and development of our business. Therefore,
we do not expect to pay cash dividends in the foreseeable future. Any future
determination relating to our dividend policy will be made at the discretion of
our board of directors and will depend on a number of factors, including future
earnings, capital requirements, financial conditions and future prospect and
other factors that the board of directors may deem relevant. If we do not pay
any dividends on our Common Stock, our stockholders will be able to profit from
an investment only if the price of the stock appreciates before the stockholder
sells it. Investors seeking cash dividends should not purchase our Common Stock.
If we are the subject of securities analyst reports or if
any securities analyst downgrades our Common Stock or our sector, the price of
our Common Stock could be negatively affected.
Securities analysts may publish reports about us or our
industry containing information about us that may affect the trading price of
our Common Stock. In addition, if a securities or industry analyst downgrades
the outlook for our stock or one of our competitors stocks, the trading price
of our Common Stock may also be negatively affected.
There is no public market for the Warrants, which could
limit their respective trading price or a holders ability to sell
them.
The Warrants are new issues of securities for which there
currently is no respective trading market. As a result, a market may not develop
for the Warrants and holders may not be able to sell the Warrants. Future
trading prices of the Warrants will depend on many factors, including prevailing
interest rates, the market for similar securities, general economic conditions
and our financial condition, performance and prospects. Accordingly, holders may
be required to bear the financial risk of an investment in the Warrants for an
indefinite period of time until their maturity. We do not intend to apply for
listing or quotation of the Warrants on any securities exchange or automated
quotation system.
The net proceeds of this Offering may be reallocated by
management.
S-13
We currently intend to allocate the net proceeds to be received
from this Offering as described under the heading Use of Proceeds. However,
management will have broad discretion in the actual application of the net
proceeds, and may elect to allocate net proceeds differently from that described
under the heading Use of Proceeds if it believes it would be in the Companys
best interest to do so. The Companys security holders, including holders of the
Common Stock and Warrants offered by this prospectus supplement, may not agree
with the manner in which management chooses to allocate and spend the net
proceeds. The failure by management to apply these funds effectively could have
a material adverse effect on the Companys business.
You may experience dilution as a result of this Offering
and future equity offerings.
Giving effect to the issuance of the Common Stock in this
Offering, the potential issuance of the Common Stock upon exercise of the
Warrants, the receipt of the expected net proceeds and the use of those
proceeds, this Offering may have a dilutive effect on our expected net income
available to our stockholders per share and funds from operations per share.
Furthermore, we are not restricted from issuing additional securities in the
future, including Common Stock, securities that are convertible into or
exchangeable for, or that represent the right to receive, Common Stock or
substantially similar securities. To the extent that we raise additional funds
through the sale of equity or convertible debt securities, the issuance of such
securities will result in dilution to our stockholders. We may sell Common Stock
or other securities in any other offering at a price per share that is less than
the price per share paid by investors in this Offering, and investors purchasing
Common Stock or other securities in the future could have rights superior to
existing stockholders. The price per share at which we sell additional shares of
Common Stock, or securities convertible or exchangeable into Common Stock, in
future transactions may be higher or lower than the price per share paid by
investors in this Offering.
USE OF PROCEEDS
The table below illustrates how we intend to use the proceeds
of the Offering assuming net proceeds of $10 million (from gross proceeds of
$11.5 million) and $25 million (from gross proceeds of $26.5 million), which we
believe are within a range of potential net proceeds from the Offering:
Principal Purposes
|
Assuming Net Proceeds of $10 million
|
Assuming Net Proceeds of $25 million
|
Phase 2a Montelukast study
|
$5 million
|
$5 million
|
Tadalafil 505(b)(2) submission to FDA
|
$1 million
|
$1 million
|
Working capital
|
$4 million
|
$10 million
|
Expansion of manufacturing facility
|
$0 million
|
$5 million
|
Application for Health Canada approval to manufacture
Suboxone® at the Companys facility
|
$0 million
|
$3 million
|
Inventory
|
$0 million
|
$1 million
|
Although we intend to use the net proceeds from the Offering as
set forth above, the actual allocation of the net proceeds may vary depending on
future developments in our business and unforeseen events.
Montelukast Study
The objectives of the Companys 26-week, randomized, double
blind, and placebo controlled Phase IIa proof of concept study are to evaluate
the safety, feasibility, tolerability, and efficacy of Montelukast buccal film
in patients with mild to moderate Alzheimers disease. The trial design includes
testing of up to 70 patients. The Company recently announced that patient
recruitment has commenced for the study and that two research sites (the Centre
for Memory and Aging in Toronto, Ontario and True North Clinical Research in
Halifax, Nova Scotia) have been open for patient enrolment since September 26,
2018. Initiation of patient screening at additional sites is expected in the
near future. The anticipated total remaining costs for the study are $5 million. The study is expected to be
completed by the first half of 2020.
S-14
Tadalafil submission
If the Offering is successful, the Company intends to proceed
with a 505(b)(2) new drug application to the FDA in respect of its Tadalafil
VersaFilm technology. The cost of the submission is approximately $1 million and
the review process spans approximately 12 months. If the submission is approved,
and subject to identifying a partner for commercialization on satisfactory
terms, the Companys Tadalafil VersaFilm technology could be commercialized as
early as the fourth quarter of 2019.
Manufacturing Facility Expansion
The Company has initiated a project to expand its existing
manufacturing facility. The project is expected to create a fivefold increase in
our production capacity, provide us with a larger scale solvent coating
capability and further progress us towards our objective of becoming a
full-service company for our partners. The total cost to complete the expansion
project is $5 million and, subject to receiving sufficient funds pursuant to the
Offering, we expect that the project would be completed by the first half of
2020.
Application for Regulatory Approval for Manufacture of
Suboxone®
Par Pharmaceutical, Inc. (Par) is the Companys commercial
and development partner for a generic version of Suboxone® sublingual film
product, which is indicated for the treatment of opioid dependence. Pursuant to
a patent infringement settlement agreement, Par is permitted to sell the product
as of January 1, 2023, or earlier in certain circumstances. Subject to receiving
sufficient funds pursuant to the Offering, IntelGenx intends to seek FDA
approval to manufacture commercial volumes of generic Suboxone® from its
manufacturing facility for commercialization with Par. The total cost to obtain
the approval is estimated to be $3 million.
Negative Cash Flow and Burn Rate
For the year ended December 31, 2017, cash used in operating
activities by the Company was $4.4 million and the Company had a net loss of
$3.1 million for the same period. The monthly burn rate of the Company for the
three-month period ending June 30, 2018 was approximately $550 thousand. As at
September 30, 2018, the Company had approximately $2.2 million in cash and
working capital of approximately $1.2 million.
If the Company receives net proceeds from the Offering of
at least $11 million, it is expected that the Company would be able to continue
to operate for at least approximately
12 months from the date of this
prospectus supplement and would be able to complete, and, if successful, obtain
approval for its 505(b)(2) submission to the FDA in respect of its Tadalafil
VersaFilm technology and significantly advance the Phase 2a Montelukast study.
If the Company receives net proceeds of $25 million from the Offering, it
is expected that the Company would be able to continue to operate for at least
approximately 18 months from the date of this prospectus supplement and, in
addition to the above-stated milestones, complete the manufacturing facility
expansion and apply for and, if successful, obtain approval for the manufacture
of generic Suboxone® at its manufacturing facility. Each of these expectations
of operating duration are based on the estimated amount of its cash on hand, the
projected proceeds of the Offering and anticipated expenditures.
The Company does not expect to incur any other material capital
expenditures during the next 12 months unless additional financing is completed.
If the Company enters into a definitive agreement with Tilray for the
co-development and commercialization of cannabis-infused VersaFilm, it expects
that its costs associated with the development of the cannabis-infused
VersaFilm products will be financed by the Private Placement. See Recent
Developments and Risk Factors.
S-15
The Company has a history of negative operating cash flows and
is reliant on continued availability of financing to fund its operating
activities. It is possible that the Company may never have sufficient revenue to
achieve profitability and positive cash flow. Management expects that the
Company will continue to incur losses for at least the next 12 months as it
pursues commercialization of Tadalafil, Montelukast, and cannabis-infused
VersaFilm technologies and other products. Additional funding will be required,
despite completion of the Offering, in order to become profitable, in particular
through the commercialization of its various VersaFilm products. If funding is
insufficient at any time in the future, the Company may not be able to develop
or commercialize its products or take advantage of business opportunities. See
Risk Factors.
DILUTION
If you invest in our securities, you will experience dilution
to the extent of the difference between the public offering price of the Units
(attributing no value to the Warrants) and the net tangible book value of our
Common Stock immediately after this Offering.
Net tangible book value per share is equal to total assets less
intangible assets and total liabilities, divided by the number of shares of our
outstanding Common Stock. Our net tangible book value as of June 30, 2018 was
approximately $1.7 million, or $0.02 per share of Common Stock.
After giving effect to the sale of Units in this Offering at a
public offering price of $ per Unit and after deducting estimated placement
agent fees and estimated offering expenses payable by us, and attributing no
value to the Warrants, our as adjusted net tangible book value as of June 30,
2018 would have been approximately $ million. This represents an immediate
increase in net tangible book value of $ per share to existing stockholders and
an immediate dilution in net tangible book value of $ per share to new investors
purchasing our Units in this Offering. The following table illustrates this per
share dilution:
Public offering price per Unit
|
$
|
|
|
Net tangible book value per share as of June 30, 2018
|
|
$0.02
|
|
Increase per share attributable to new
investors
|
|
|
|
As adjusted net tangible book value per share after this
Offering
|
|
|
|
Dilution per share to new investors
|
|
|
|
Investors that acquire additional shares of our Common Stock
through the exercise of the Warrants offered hereby may experience additional
dilution depending on our net tangible book value at the time of exercise.
The number of shares of Common Stock shown above to be
outstanding after this Offering assumes the sale of all of the Units offered
hereunder, is based on 74,000,979 shares outstanding as of October 15, 2018 and
excludes:
-
4,204,818 shares of Common Stock issuable upon exercise of outstanding
stock options, at a weighted average exercise price of $0.68 per share;
-
76,296 additional shares of Common Stock reserved for issuance under a
warrant agreement at an exercise price of $0.5646 per share;
-
5,612,594 additional shares of Common Stock issuable upon the conversion
of 7,577,000 debentures under the 2017 unsecured convertible debentures
agreements at a conversion price of CA$1.35 per share;
-
2,000,000 additional shares of Common Stock issuable upon the conversion
of 1,600,000 debentures under the 6% convertible notes at a conversion price
of $0.80 per share;
-
2,654,075 additional shares of Common Stock reserved for issuance under a
warrant agreements at an exercise price of $0.80 per share;
-
649,136 additional shares of Common Stock reserved for future issuance
under our amended and restated 2016 option plan; and
-
up to
shares
of Common Stock issuable upon exercise of the Warrants offered hereby.
S-16
DESCRIPTION OF BUSINESS
Overview
We are a drug delivery company established in 2003 and
headquartered in Montreal, Quebec, Canada. Our focus is on the development of
novel oral immediate-release and controlled-release products for the
pharmaceutical market. More recently, we have made the strategic decision to
enter the oral film market and have implemented commercial oral film
manufacturing capability. This enables us to offer our partners a comprehensive
portfolio of pharmaceutical services, including pharmaceutical R&D, clinical
monitoring, regulatory support, tech transfer and manufacturing scale-up, and
commercial manufacturing.
Our business strategy is to develop pharmaceutical products
based on our proprietary drug delivery technologies and, once the viability of a
product has been demonstrated, license the commercial rights to partners in the
pharmaceutical industry. In certain cases, we rely upon partners in the
pharmaceutical industry to fund the development of the licensed products,
complete the regulatory approval process with the U.S. Food and Drug
Administration (FDA) or other regulatory agencies relating to the licensed
products, and assume responsibility for marketing and distributing such
products.
In addition, we may choose to pursue the development of certain
products until the project reaches the marketing and distribution stage. We will
assess the potential for successful development of a product and associated
costs, and then determine at which stage it is most prudent to seek a partner,
balancing such costs against the potential for additional returns earned by
partnering later in the development process.
Managing our project pipeline is a key success factor for the
Company. We have undertaken a strategy under which we will work with
pharmaceutical companies in order to apply our oral film technology to
pharmaceutical products for which patent protection is nearing expiration, a
strategy which is often referred to as lifecycle management. Under §505(b)(2)
of the Food, Drug, and Cosmetics Act, the FDA may grant market exclusivity for a
term of up to three years following approval of a listed drug that contains
previously approved active ingredients but is approved in a new dosage, dosage
form, route of administration or combination.
The 505(b)(2) pathway is also the regulatory approach to be
followed if an applicant intends to file an application for a product containing
a drug that is already approved by the FDA for a certain indication and for
which the applicant is seeking approval for a new indication or for a new use,
the approval of which is required to be supported by new clinical trials, other
than bioavailability studies. We have implemented a strategy under which we
actively look for such so-called repurposing opportunities and determine
whether our proprietary VersaFilm technology adds value to the product. We
currently have two such drug repurposing projects in our development
pipeline.
We continue to develop the existing products in our pipeline
and may also perform research and development on other potential products as
opportunities arise.
We have established a state-of-the-art manufacturing facility
with the intent to manufacture all our VersaFilm products in-house as we
believe that this:
|
1)
|
represents a profitable business opportunity,
|
|
2)
|
will reduce our dependency upon third-party contract
manufacturers, thereby protecting our manufacturing process know-how and
intellectual property, and
|
|
3)
|
allows us to offer our clients and development partners a
full service from product conception through to supply of the finished
product.
|
Recent Developments
On September 20, 2018, we announced that we executed the LOI
with Tilray®, a global leader in cannabis research, cultivation, production and
distribution, to co-develop and commercialize oral film products infused with
recreational and medical cannabis (cannabis-infused VersaFilm), in
anticipation of amended cannabis regulations which would allow adult-use
consumers to purchase edible products.
S-17
Subject to entering into a definitive agreement and the
satisfaction of customary closing conditions, the LOI provides that IntelGenx
and Tilray® will fund 20% and 80% of the costs associated with the development
of the cannabis-infused VersaFilm products, respectively. We will have rights
to manufacture and supply the co-developed products to Tilray®, and will also
receive a fixed single-digit royalty on net product sales. Tilray® will have the
exclusive, worldwide marketing and distribution rights for the co-developed
products.
The LOI also contemplates that, at the time of entering into
the definitive agreement, Tilray
®
will make a strategic investment in
IntelGenx by way of a non-brokered private placement (Private Placement).
Tilray
®
will purchase 1,250,000 shares of Common Stock of IntelGenx
at a price of USD$0.80 per share, which was equal to the five-day volume
weighted average closing price of IntelGenx Common Stock on the OTCQX for the
period ended September 18, 2018, being the date of the LOI. IntelGenx intends to
use the proceeds from the Private Placement for cannabis-infused VersaFilm
product development in connection with the LOI. Closing of the Private Placement
is subject to the approval of the TSX-V.
We believe that dissolvable films for the consumption of
marijuana will appeal to both medicinal and recreational markets and that a
significant portion of those likely to use marijuana will find a dissolvable
film appealing, due to its ease-of-use, discreteness and lack of harmful
smoke.
On May 14, 2018, we announced that all patent litigation
between the Company, Par Pharmaceutical, Inc., Indivior, Inc., Indivior UK
Limited, and Aquestive Therapeutics, Inc. (formerly MonoSol Rx, LLC) related to
Suboxone® film has been settled. The settlement agreement permits Par to begin
selling a generic version of Suboxone® film on January 1, 2023, or earlier under
certain circumstances. Par (now Endo Ventures) is the Companys commercial and
development partner for a generic version of Suboxone® sublingual film product,
which is indicated for the treatment of opioid dependence. We will have
exclusive rights to manufacture and supply product to Endo Ventures, while Endo
Ventures will have exclusive rights to market and sell Suboxone supplied by the
Company in the United States.
Since September 15, 2018, we have received proceeds of
$1,634,294 as a result of the exercise of 2,894,606 previously issued common
share purchase warrants (the Previous Warrants).
The exercised Previous Warrants were issued in connection with
our public offering of units completed in December 2013, and were set to expire
on December 15, 2018. The exercise price of the Previous Warrants was $0.5646.
Following the exercise of the Previous Warrants, we continue to have an
aggregate of 2,730,371 share purchase warrants outstanding, of which 76,296 were
issued under the December 2013 public offering and 2,654,075 were issued under
our May 2018 private placement.
DESCRIPTION OF CAPITAL STOCK
The authorized share capital of the Company consists of
200,000,000 shares of Common Stock with a par value of $0.00001 and 20,000,000
shares of preferred stock with a par value of $0.00001. As at October 15, 2018,
there were 74,000,979 shares of Common Stock issued and outstanding and no
preferred stock issued and outstanding.
Common Stock
The holders of Common Stock are entitled to one vote per share
on all matters voted on by stockholders, including the election of directors.
Except as otherwise required by law, the holders of Common Stock exclusively
possess all voting power. The holders of Common Stock are entitled to dividends
as may be declared from time to time by our board of directors from funds
available for distribution to holders. No holder of Common Stock has any
pre-emptive right to subscribe to any securities of ours of any kind or class or
any cumulative voting rights. The outstanding shares of Common Stock are, and
the shares, upon issuance and sale as contemplated will be, duly authorized,
validly issued, fully paid and non-assessable.
Rights Upon Dissolution or Winding Up
The Delaware General Corporation Law provides that upon
dissolution, liquidation or winding-up of the Company, holders of Common Stock
have the lowest priority in the distribution of assets and will only receive a
distribution if all senior obligations have been paid. If all senior obligations
have been paid, the holders of shares of Common Stock will be entitled to
receive our assets available for distribution proportionate to their pro rata
ownership of the outstanding shares of Common Stock.
Anti-Takeover Effects of Various Provisions of Delaware Law
and Our Certificate of Incorporation and By-laws
The Delaware General Corporation Law, our certificate of
incorporation and our by-laws contain provisions that may have some
anti-takeover effects and may delay, defer or prevent a tender offer or takeover
attempt that a stockholder might consider in his, her or its best interest,
including those attempts that might result in a premium over the market price
for the shares held by stockholders.
S-18
Delaware Anti-Takeover Statute
We are subject to Section 203 of the Delaware General
Corporation Law (Section 203). Subject to specific exceptions, Section 203
prohibits a publicly held Delaware corporation from engaging in a business
combination with an interested stockholder for a period of three years after
the time the stockholder becomes an interested stockholder, unless:
-
the business combination, or the transaction in which the stockholder
became an interested stockholder, is approved by our board of directors prior
to the time the interested stockholder attained that status;
-
upon consummation of the transaction that resulted in the stockholder
becoming an interested stockholder, the interested stockholder owned at least
85% of our voting stock outstanding at the time the transaction commenced,
excluding those shares owned by persons who are directors and also officers
and employee stock plans in which employee participants do not have the right
to determine confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer; or
-
at or after the time a stockholder became an interested stockholder, the
business combination is approved by our board of directors and authorized at
an annual or special meeting of stockholders by the affirmative vote of at
least two-thirds of our outstanding voting stock that is not owned by the
interested stockholder.
Business combinations include mergers, asset sales and other
transactions resulting in a financial benefit to the interested stockholder.
Subject to various exceptions, in general, an interested stockholder is a
stockholder who, together with his, her or its affiliates and associates, owns,
or within three years did own, 15% or more of the shares of our outstanding
voting stock. These restrictions could prohibit or delay the accomplishment of
mergers or other takeover or change of control attempts with respect to us and,
therefore, may discourage attempts to acquire us.
Warrants
As of the date of this prospectus supplement we had outstanding
warrants to purchase an aggregate of 2,654,075 shares of our Common Stock at an
exercise price of $0.80, expiring on June 1, 2021 as well as outstanding
warrants to purchase an aggregate of 76,296 shares of our Common Stock at an
exercise price of $0.5646 expiring on December 15, 2018.
Preferred Stock
Our board of directors is authorized to issue all and any of
the shares of preferred stock in one or more series, fix the number of shares,
determine or alter for each such series voting powers or other rights,
qualifications, limitations or restrictions thereof. As of the date of this
prospectus supplement, there are no shares of preferred stock outstanding.
Convertible Debentures
The Company has an aggregate of CDN$7,577,000 of 8% Convertible
Unsecured Subordinated Debentures due June 30, 2020 (the Debentures). The
Debentures mature on June 30, 2020 and bear interest at annual rate of 8%
payable semi-annually on the last day of June and December of each year,
commencing on December 31, 2017.
Conversion
The Debentures are convertible at the option of the holders at
any time prior to the close of business on the earlier of June 30, 2020 and the
business day immediately preceding the date specified by the Company for
redemption of Debentures. The conversion price will be CDN$1.35 (the Conversion
Price) per share of Common Stock, being a conversion rate of approximately 740
Shares per CDN$1,000 principal amount of Debentures, subject to adjustment in
certain events.
Redemption
The Debentures are not redeemable prior to June 30, 2018. On or
after June 30, 2018, but prior to June 30, 2019, the Debentures may be redeemed
at the Companys sole option, in whole or in part, from time to time on required
prior notice at a redemption price equal to the principal amount of the
Debentures, provided that the current market price on the date on which such
notice of redemption is given is not less than 125% of the Conversion Price. On
or after June 30, 2019 and prior to June 30, 2020, the Debentures may be
redeemed at the Companys sole option, in whole or in part, from time to time on
required prior notice, at a redemption price equal to the principal amount of
the Debentures, irrespective of the current market price. In addition thereto,
at the time of redemption, the Company will pay to the holder accrued and unpaid
interest up to but not including the date of redemption.
S-19
Subordination
The payment of the principal of, and interest on, the
Debentures is subordinated in right of payment to the prior payment in full of
all Senior Indebtedness of the Company, including indebtedness under the
Companys present and future bank credit facilities and any other secured
creditors. Senior Indebtedness of the Company is defined as the principal of
and premium, if any, and interest on and other amounts in respect of all
indebtedness of the Company other than indebtedness evidenced by the Debentures
and all other existing and future debentures or other instruments of the Company
which, by the terms of the instrument creating or evidencing the indebtedness,
is expressed to be pari passu with, or subordinate in right of payment to, the
Debentures. Subject to statutory or preferred exceptions or as may be specified
by the terms of any particular securities, each Debenture ranks pari passu with
each other Debenture, and with all other present and future subordinated and
unsecured indebtedness of the Company except for sinking fund provisions (if
any) applicable to different series of debentures or similar obligations of the
Company. The Debentures will not limit the ability of the Company to incur
additional indebtedness, including indebtedness that ranks senior to the
Debentures, or from mortgaging, pledging or charging its properties to secure
any indebtedness.
The Debentures are also effectively subordinated to claims of
creditors of the Companys subsidiaries, except to the extent the Company is a
creditor of such subsidiaries ranking at least pari passu with such other
creditors.
Convertible Notes
As of the date of this prospectus supplement, we have
$1,600,000 outstanding under our 6% convertible unsecured subordinated notes,
due June 1, 2021 (the Notes) pursuant to which 2,000,000 shares of our Common
Stock are issuable upon full conversion of all of such Notes.
Interest
The Notes bear interest from, and including, the date of issue
at the rate of 6.00% per annum, payable in arrears on March 1, June 1, September
1 and December 1, with the last such payment falling due on June 1, 2021.
Default
Under the terms of the Notes, an event of default in respect of
the Notes will occur if any one or more of the following described events has
occurred and is continuing with respect to the Notes: (a) failure to pay
principal or premium, if any, when due on the Notes, whether at maturity, upon
redemption, by declaration or otherwise; (b) certain events of bankruptcy,
insolvency or reorganization of the Company under bankruptcy or insolvency laws;
or (c) the Company breaches any representation or covenant in the Note that
could reasonably be expected to have a material adverse effect. If an Event of
Default has occurred and is continuing, an investor may, with the written
consent of the holders of more than 50% of the principal amount of the Notes
then outstanding, by written notice to the Company, declare all outstanding
Notes to be immediately due and payable without presentment, demand, protest or
any other notice of any kind, all of which will be expressly waived by the
Company.
Subordination
The Notes are junior to any of the Companys the principal of,
premium, if any, and interest on (i) all indebtedness for money borrowed or
guaranteed by the Company other than the Companys subordinated debt securities,
unless the indebtedness expressly states to have the same rank as, or to rank
junior to, the Companys subordinated debt securities, (ii) and any deferrals,
renewals or extensions of any such indebtedness.
Conversion
Each holder of Notes may, at its option, at any time prior to
payment in full of the principal amount of the Note or the conversion of the
note at the option of the Company, convert, in whole or in part, the outstanding
principal amount of its Notes and all accrued and unpaid interest on such
Note into 6,250 fully paid and nonassessable shares of Common Stock for each
$5,000 aggregate principal amount of Notes then outstanding (the Conversion
Ratio). Any interest payable in Conversion Shares shall be converted based on
the Conversion Ratio.
S-20
At any time following the date on which the Common Stock trades
on the OTCQX or other United States market or exchange at a price of $1.40 or
greater for 20 consecutive trading days, the Company may elect to convert the
then outstanding principal amount of the Notes and any interest payable in
shares of Common Stock based on the Conversion Ratio.
Waiver and Amendment
Any provision of the Notes may be amended, waived or modified
upon the written consent of the Company and the holders of more than 50% of the
principal amount of the Notes then outstanding. A consent or waiver may not
reduce the principal amount of any Note without the holders written consent, or
(ii) reduce the rate of interest of any Note without the holders written
consent.
S-21
DESCRIPTION OF SECURITIES WE ARE OFFERING
We are offering Units, each Unit consisting of one share of our
Common Stock and one half of one Warrant, each whole Warrant to purchase one
share of our Common Stock. The Units will not be issued or certificated. The
shares of Common Stock and Warrants that we are issuing are immediately
separable and will be issued separately. The shares of Common Stock issuable
from time to time upon exercise of the Warrants, if any, are also being offered
pursuant to this prospectus supplement.
Common Stock
Holders of our Common Stock have the rights set forth above
under the heading Description of Capital Stock-Common Stock beginning on
Page S-18.
Warrants
The following summary of certain terms and provisions of the
Warrants that are being offered hereby is not complete and is subject to, and
qualified in its entirety by the provisions of the Warrants, the form of which
shall be filed as an exhibit to the registration statement of which this
prospectus supplement is a part. Prospective investors should carefully review
the terms and provisions of the form of the warrant for a complete description
of the terms and conditions of the Warrants.
Duration and Exercise Price
The Warrants offered hereby will entitle the holders thereof to
purchase up to an aggregate of shares of our Common Stock at an exercise price
of $ per share, commencing immediately on the issuance date and will expire on
the year anniversary of the issuance date. After the close of business on
the expiration date, unexercised Warrants will become void. The Warrants are
immediately separable from the Common Stock included in the Units and will be
issued separately in this Offering. The Warrants will be issued in certificated
form.
In the absence of an effective registration statement or an
available prospectus thereunder for issuance of shares upon exercise of the
Warrants, upon any exercise of the Warrants, we shall be required to pay
liquidated damages to the holder during the period of time of unavailability of
an effective registration statement or prospectus, as described in the Warrants.
The exercise price of the Warrants is subject to adjustment in
the case of stock dividends or other distributions on shares of Common Stock or
any other equity or equity equivalent securities payable in shares of Common
Stock, stock splits, stock combinations, reclassifications or similar events
affecting our Common Stock.
Prior to the exercise of any Warrants, holders of the Warrants
will not have any of the rights of holders of the Common Stock purchasable upon
exercise, including voting rights; provided, however, that the holders of the
Warrants will have certain rights to participate in distributions or dividends
or rights offerings on our Common Stock to the extent set forth in the
certificates representing the Warrants.
Exercisability
The Warrants may not be exercised by the holder to the extent
that the holder, together with its affiliates, would beneficially own, after
such exercise more than 4.99% (or, at the election of purchaser prior to the
date of issuance, 9.99%) of Common Stock then outstanding, subject to the right
of the holder to increase or decrease such beneficial ownership limitation upon
notice to us, provided that such limitation cannot exceed 9.99% and provided
that any increase in the beneficial ownership limitation shall not be effective
until 61 days after such notice is delivered.
Fundamental Transactions
In addition, the Warrants provide that if, at any time while
such Warrants are outstanding, we (1) consolidate or merge with or into another
corporation, (2) sell all or substantially all of our assets or (3) are subject
to or complete a tender or exchange offer pursuant to which holders of our
Common Stock are permitted to 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 Stock, (4) effect any reclassification, reorganization
or recapitalization of our Common Stock or any compulsory share exchange
pursuant to which our Common Stock is converted into or exchanged for other
securities, cash or property, or (5) engage in one or more transactions with
another party that results in that party acquiring more than 50% of our
outstanding Common Stock (each, a Fundamental Transaction), then the holder of
such Warrants shall have the right thereafter to receive, upon exercise of the
Warrant, the same amount and kind of securities, cash or property as it would
have been entitled to receive upon the occurrence of such Fundamental
Transaction if it had been, immediately prior to such Fundamental Transaction,
the holder of the number of shares of Common Stock then issuable upon exercise
of the Warrant, and any additional consideration payable as part of the
Fundamental Transaction. Any successor to us or surviving entity shall assume
the obligations under the Warrant.
S-22
Exchange Listing
We do not plan on making an application to list the Warrants on
any national securities exchange or quotation system.
Waivers and Amendments
The provisions of the Warrants may be amended only if we obtain
the written consent of a Holder.
S-23
PLAN OF DISTRIBUTION
We engaged H.C. Wainwright & Co., LLC (Wainwright or the
placement agent) to act as our exclusive placement agent in the United States
to solicit offers to purchase the securities offered by this prospectus
supplement. Wainwright is not purchasing or selling any securities, nor are they
required to arrange for the purchase and sale of any specific number or dollar
amount of securities, other than to use their best efforts to arrange for the
sale of the securities by us. Therefore, we may not sell the entire amount of
securities being offered. However, we do not intend to accept any
subscriptions if the total gross proceeds are less than $ in the aggregate. We
will enter into a securities purchase agreement directly with the institutional
investors, at the investors option, who purchase our securities in this
Offering. Investors who do not enter into a separate purchase agreement shall
rely solely on this prospectus supplement in connection with the purchase of our
securities in this Offering. In the United States, offers will only be made to
and subscriptions will only be accepted from investors that qualify as
institutional investors exempt from qualification under the laws and
regulations of their state of domicile. Wainwright may engage one or more
sub-placement agents or selected dealers to assist with the Offering.
The Units and the securities underlying the Units that are
registered on this prospectus supplement and offered hereunder in the United
States are also qualified by an MJDS prospectus, as supplemented, filed with the securities
regulatory authorities in each of the Canadian provinces of British Columbia,
Alberta, Manitoba, Ontario and Québec and are offered under such MJDS prospectus,
as supplemented,
in such provinces through Echelon as placement
agent. Echelon is not registered as a broker-dealer in the United States or any
jurisdiction in the United States and, accordingly, Echelon will only solicit or
accept offers to purchase or sell the Units in Canada and will not, directly or
indirectly, solicit offers to purchase or sell the Units in the United States.
Wainwright is not registered as an investment dealer in any Canadian
jurisdiction and, accordingly, will only solicit offers to purchase or sell the
Units in the United States and will not, directly or indirectly, solicit or
accept offers to purchase or sell the Units in Canada.
We have granted Echelon an Over-Allotment Option, exercisable, in whole or in part, at
the sole discretion of Echelon, at any time prior to 5:00
p.m. (Montreal time) on the date that is the 30th day after the closing of the
Offering, to purchase additional Units and/or any combination of Common Stock
and/or Warrants in an amount representing up to an
additional 15% of the number of Units sold pursuant to the Offering, at the
public offering price to cover over-allocations, if any, and for market
stabilization purposes.
Upon the closing of this Offering, we will pay the placement
agents (pro rata based on the sales made by such placement agent) a cash
transaction fee equal to 7% of the aggregate gross proceeds to us from the sale
of the Units in the Offering, provided that the cash transaction fee shall equal
3.5% of the aggregate gross proceeds to us from sale of the Units to certain
identified investors only. In addition, we will pay Wainwright a management fee
equal to 1% of the aggregate gross proceeds in this Offering. We will also
reimburse Wainwright for its expenses incurred in connection with this Offering
in a non-accountable amount equal to $40,000 and for its legal and other
expenses in connection with this Offering up to $100,000, subject to compliance
with FINRA Rule 5110(f)(2)(D)(i). In addition, we will also reimburse Echelon
for its expenses incurred in connection with this Offering and for its legal and
other expenses in connection with this Offering up to Cdn$120,000, plus taxes
and disbursements.
The following table show the per Unit and total placement agent
fees we will pay in connection with the sale of the securities in this Offering,
assuming the purchase of all of the securities we are offering.
|
Per Unit
|
Total
|
Public Offering Price
|
$
|
$
|
Placement agent cash fees
|
$
|
$
(1)
|
Proceeds, before expenses, to us
|
$
|
$
|
S-24
(1) We paid a reduced placement agent cash fee of 3.5% on
Units sold to certain identified investors.
We estimate the total offering expenses of this Offering that
will be payable by us, excluding the placement agent fees and expenses, will be
approximately $ . We estimate the total expenses of this Offering, which will be
payable by us, excluding the placement agent fees, will be approximately $ .
After deducting the placement agent fees and our estimated offering expenses, we
expect the net proceeds from this Offering to be approximately $ .
In addition, we agreed to grant compensation warrants to the
placement agents (the Placement Agent Warrants) (pro rata based on the sales
made by such placement agent) to purchase a number of shares of our Common Stock
equal to 7% of the number of shares of Common Stock sold in this Offering
(excluding any shares of Common Stock underlying the warrants issued in this
Offering), provided that the Placement Agent Warrants shall equal 3.5% of the
number of shares of Common Stock sold to certain identified investors only. The
Placement Agent Warrants will be in same form as the Warrants, except that the
Placement Agent Warrants will have an exercise price of $ (125% of the offering
price per share in this Offering) and the Placement Agent Warrants issued to
Wainwright will terminate on the year anniversary of the effective date of
the registration statement of which this prospectus supplement is a part.
Pursuant to FINRA Rule 5110(g), the Placement Agent Warrants and any shares
issued upon exercise of the Placement Agent Warrants shall not be sold,
transferred, assigned, pledged, or hypothecated, or be the subject of any
hedging, short sale, derivative, put, or call transaction that would result in
the effective economic disposition of the securities by any person for a period
of 180 days immediately following the date of effectiveness or commencement of
sales of this Offering, except the transfer of any security:
-
by operation of law or by reason of our reorganization;
-
to any FINRA member firm participating in the Offering and the officers or
partners thereof, if all securities so transferred remain subject to the
lock-up restriction set forth above for the remainder of the time period;
-
if the aggregate amount of our securities held by the placement agent or
related persons do not exceed 1% of the securities being offered;
-
that is beneficially owned on a pro rata basis by all equity owners of an
investment fund, provided that no participating member manages or otherwise
directs investments by the fund and the participating members in the aggregate
do not own more than 10% of the equity in the fund; or
-
the exercise or conversion of any security, if all securities remain
subject to the lock-up restriction set forth above for the remainder of the
time period.
In addition, we have granted a right of first refusal to
Wainwright pursuant to which it has the right to act as the exclusive advisor,
manager or underwriter or placement agent in the United States, as applicable,
if the Company or its subsidiaries sell or acquire a business, finance any
indebtedness using a manager or agent, or raise capital through a public or
private offering of equity or debt securities in the United States at any time
prior to the 12 month anniversary of the date of this prospectus supplement, if
this Offering closes.
We have also agreed to pay the placement agent a tail fee equal
to the cash and warrant compensation in this Offering, if any investor whom the
placement agent contacted, or introduced to the Company, during the term of its
engagement, provides us with further capital during the six-month period
following termination of the placement agents engagement.
We have agreed to indemnify Wainwright and Echelon against certain
liabilities, including, in the case of Wainwright, liabilities under the Securities Act of 1933, or to
contribute to payments Wainwright and Echelon may be required to make with respect
to any of these liabilities.
The placement agent may be deemed to be an underwriter within
the meaning of Section 2(a)(11) of the Securities Act and any fees received by
it and any profit realized on the sale of the securities by it while acting as
principal might be deemed to be underwriting discounts or commissions under the
Securities Act. The placement agent will be required to comply with the
requirements of the Securities Act and the Exchange Act of 1934, as amended (the
Exchange Act), including, without limitation, Rule 10b-5 and Regulation M
under the Exchange Act. These rules and regulations may limit the timing of
purchases and sales of our securities by the placement agent. Under these rules
and regulations, the placement agent may not (i) engage in any stabilization
activity in connection with our securities; and (ii) bid for or purchase any of our securities
or attempt to induce any person to purchase any of our securities, other than as
permitted under the Exchange Act, until the placement agent has completed its
participation in the distribution.
S-25
The public offering price of the Units we are offering will be
negotiated between us and the investors, in consultation with Wainwright and
Echelon based on the trading of our Common Stock prior to the Offering, among
other things, and may be at a discount to the current market price. Other
factors considered in determining the public offering price of the shares of our
Common Stock we are offering include the history and prospects of the Company,
the stage of development of our business, our business plans for the future and
the extent to which they have been implemented, an assessment of our management,
general conditions of the securities markets at the time of the Offering and
such other factors as were deemed relevant.
The placement agent has performed investment banking services
for us in the past, for which it has received customary fees and expenses. The
placement agent may, from time to time, engage in transactions with or perform
services for us in the ordinary course of its business and may continue to
receive compensation from us for such services, but we have no present
agreements with the placement agent to do so.
Our Common Stock is quoted on the OTCQX under the symbol IGXT
and listed on the TSX-V under the symbol IGX.
The transfer agent and registrar for our Common Stock is
Philadelphia Stock Transfer, Inc.
LEGAL MATTERS
The validity of the Common Stock and Warrants offered hereby
will be passed upon by Dorsey & Whitney, LLP.
EXPERTS
IntelGenx Technologies Corp. financial statements for the years
ended December 31, 2017 and 2016 included in this registration statement have
been audited by Richter, LLP, Montreal, Quebec, an independent registered public
accounting firm, as stated in their report, and have been so included in
reliance upon the report of said firm and their authority as experts in
accounting and auditing. This report expresses an unqualified opinion.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file reports and other information with the Securities and
Exchange Commission. We have also filed a registration statement on Form S-3,
including exhibits, with the SEC with respect to the shares being offered in
this Offering. This prospectus supplement is part of the registration statement,
but it does not contain all of the information included in the registration
statement or exhibits. For further information with respect to us and our Common
Stock, we refer you to the registration statement and to the exhibits and
schedules to the registration statement. Statements contained in this prospectus
supplement as to the contents of any contract or any other document referred to
are not necessarily complete, and in each instance, we refer you to the copy of
the contract or other document filed as an exhibit to the registration
statement. Each of these statements is qualified in all respects by this
reference. You may inspect a copy of the registration statement and other
reports we file with the Securities and Exchange Commission without charge at
the SECs principal office in Washington, D.C., and copies of all or any part of
the registration statement may be obtained from the Public Reference Section of
the SEC, 100 F Street NE, Washington, D.C. 20549, upon payment of fees
prescribed by the SEC. The SEC maintains an internet site that contains reports,
proxy and information statements and other information regarding registrants
that file electronically with the SEC. The address of the Web site is
http://www.sec.gov. The SECs toll free investor information service can be
reached at 1-800-SEC-0330.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference the information
contained in documents that we file with them. We are incorporating by reference
into this prospectus supplement the documents listed below (excluding any
information furnished under Items 2.02 or 7.01 in any Current Report on Form
8-K):
S-26
-
Our Annual Report on Form 10-K for the fiscal year ended December 31, 2017
that we filed with the SEC on March 29, 2018;
-
Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2018
that we filed with the SEC on May 10, 2018;
-
Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2018 that
we filed with the SEC on August 9, 2018;
-
Our Proxy Statement on Schedule 14A that we filed with the SEC on March
29, 2018 (the Proxy Statement);
-
Our Current Reports on Form 8-K filed with the SEC on January 26, 2018,
May 10, 2018 and October 17, 2018; and
-
The description of the Registrants shares of Common Stock set forth in
the registration statement on Form 10SB12G filed with the Securities and
Exchange Commission on July 28, 2000.
By incorporating by reference our Annual Report on Form 10-K,
and our Proxy Statement, we can disclose important information to you by
referring you to our Annual Report on Form 10-K, and our Proxy Statement, which
are considered part of this prospectus supplement.
Any statement contained in a document incorporated or deemed to
be incorporated by reference into this prospectus supplement will be deemed to
be modified or superseded for purposes of this prospectus supplement to the
extent that a statement contained in this prospectus supplement or any other
subsequently filed document that is deemed to be incorporated by reference into
this prospectus supplement modifies or supersedes the statement. Any statement
so modified or superseded will not be deemed, except as so modified or
superseded, to constitute a part of this prospectus supplement.
All documents that we file with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
after the effective date of the initial registration statement of which this
prospectus supplement is a part and all such documents that we file with the SEC
after the date of this prospectus supplement and before the termination of the
Offering of our securities shall be deemed incorporated by reference into this
prospectus supplement and to be a part of this prospectus supplement from the
respective dates of filing such documents. Unless specifically stated to the
contrary, none of the information that we disclose under Items 2.02 or 7.01 of
any Current Report on Form 8-K that we may from time to time furnish to the SEC
will be incorporated by reference into, or otherwise included in, this
prospectus supplement.
Any statement contained in a document incorporated by reference
in this prospectus supplement shall be deemed to be modified or superseded for
purposes of this prospectus supplement to the extent that a statement contained
in this prospectus supplement or in any other subsequently filed document that
also is or is deemed to be incorporated by reference in this prospectus
supplement modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus supplement.
Copies of the documents incorporated by reference in this
prospectus supplement may be obtained on written or oral request without charge
from our Corporate Secretary at 6420 Abrams, Ville Saint Laurent, Quebec H4S
1Y2, Canada (telephone: (514) 331-7440).
We also maintain a web site at http://www.intelgenx.com through
which you can obtain copies of documents that we have filed with the SEC. The
contents of that site are not incorporated by reference into or otherwise a part
of this prospectus supplement.
S-27
PROSPECTUS
IntelGenx Technologies Corp.
$100,000,000
Common
Stock
Warrants
Rights
Units
Subscription Receipts
Preferred Stock
Debt
Securities
IntelGenx Technologies Corp. may offer and sell, from time to
time, up to $100,000,000 aggregate initial offering price of the Companys
common stock, $0.00001 par value (which we refer to as Common Stock), warrants
to purchase Common Stock (which we refer to collectively as Warrants), rights
to purchase Common Stock or other securities of the Company (which we refer to
as Rights), subscription receipts for Common Stock, Warrants, Preferred Stock
or any combination thereof (which we refer to as Subscription Receipts),
preferred stock of the Company (which we refer to as Preferred Stock), or debt
securities of the Company which may or may not be converted into other
securities (which we refer to as Debt Securities), or any combination thereof
(which we refer to as Units), in one or more transactions under this
Prospectus (which we refer to as the Prospectus). We may also offer
under this Prospectus any Common Stock issuable upon the exercise of Warrants
and any Common Stock or other securities of the Company issuable upon the
exercise of Rights and any Common Stock issuable on conversion of Subscription
Receipts, Preferred Stock or Debt Securities. Collectively, the Common Stock,
Warrants, Rights, Subscription Receipts, Preferred Stock, Debt Securities,
shares of Common Stock issuable upon exercise of the Warrants, Common Stock or
other securities of the Company issuable upon the exercise of Rights,
Subscription Receipts, Preferred Stock, and Debt Securities and Units are
referred to as the Securities.
This Prospectus provides you with a general description of the
Securities that we may offer. Each time we offer Securities, we will provide you
with a prospectus supplement (which we refer to as the Prospectus Supplement)
that describes specific information about the particular Securities being
offered and may add, update or change information contained in this Prospectus.
You should read both this Prospectus and the Prospectus Supplement, together
with any additional information which is incorporated by reference into this
Prospectus and the Prospectus Supplement.
This Prospectus may not be used to
offer or sell Securities without the Prospectus Supplement which includes a
description of the method and terms of that offering.
We may sell the Securities on a continuous or delayed basis to
or through underwriters, dealers or agents or directly to purchasers. The
Prospectus Supplement, which we will provide to you each time we offer
Securities, will set forth the names of any underwriters, dealers or agents
involved in the sale of the Securities, and any applicable fee, commission or
discount arrangements with them. For additional information on the methods of
sale, you should refer to the section entitled Plan of Distribution in this
Prospectus.
Our Common Stock is quoted on the OTCQX under the symbol IGXT
and on the TSX Venture Exchange (the TSX-V) under the symbol IGX. The
closing price of our Common Stock as quoted on the OTCQX on October 3, 2018
was $1.13, and the closing price of our Common Stock on the TSX-V on
October 3, 2018 was CDN $1.51.
There is currently no market through which the
Securities, other than the Common Stock, may be sold, and purchasers may not be
able to resell the Securities purchased under this Prospectus. This may affect
the pricing of the Securities, other than the Common Stock, in the secondary
market, the transparency and availability of trading prices, the liquidity of
these Securities and the extent of issuer regulation.
See Risk
Factors.
Investing in the Securities involves risks. See Risk
Factors on page 14.
These Securities have not been approved or disapproved by
the U.S. Securities and Exchange Commission (which we refer to as the SEC) or
any state securities commission nor has the SEC or any state securities
commission passed upon the accuracy or adequacy of this Prospectus. Any
representation to the contrary is a criminal offense.
The date of this Prospectus is October 4, 2018
4
CONTENTS
You should rely only on the information contained in this
Prospectus and any related Prospectus Supplement or free writing prospectus that
we may provide to you in connection with the Securities offered hereby. We have
not authorized any other person to provide you with different information. If
anyone provides you with different or inconsistent information, you should not
rely on it. We are not making an offer to sell these Securities in any
jurisdiction where the offer or sale is not permitted. You should assume that
the information appearing in this Prospectus is accurate only as of the date on
the front cover of this Prospectus. Our business, financial condition, results
of operations and prospects may have changed since that date. Neither the
delivery of this Prospectus nor any sale made in connection with this Prospectus
shall, under any circumstances, create any implication that there has been no
change in our affairs since the date of this Prospectus or that the information
contained in this Prospectus is correct as of any time after its date.
FORWARD-LOOKING STATEMENTS
Certain statements included or incorporated by reference in
this Prospectus constitute forward-looking statements within the meaning of
applicable securities laws. All statements contained in this registration
statement that are not clearly historical in nature are forward-looking, and the
words anticipate, believe, continue, expect, estimate, intend,
may, plan, will, shall and other similar expressions are generally
intended to identify forward-looking statements within the meaning of Section
27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act
of 1934. All forward-looking statements are based on our beliefs and assumptions
based on information available at the time the assumption was made. These
forward-looking statements are not based on historical facts but on managements
expectations regarding future growth, results of operations, performance, future
capital and other expenditures (including the amount, nature and sources of
funding thereof), competitive advantages, business prospects and opportunities.
Forward-looking statements involve significant known and unknown risks,
uncertainties, assumptions and other factors that may cause our actual results,
levels of activity, performance or achievements to differ materially from those
implied by forward-looking statements. These factors should be considered
carefully and prospective investors should not place undue reliance on the
forward-looking statements. Although the forward-looking statements contained in
this registration statement or incorporated by reference herein are based upon
what management believes to be reasonable assumptions, there is no assurance
that actual results will be consistent with these forward-looking statements.
These forward-looking statements are made as of the date of this registration
statement or as of the date specified in the documents incorporated by reference
herein, as the case may be.
Forward-looking statements relate to analyses and other
information that are based on forecasts of future results, estimates of amounts
not yet determinable and other uncertain events. Forward-looking statements, by
their nature, are based on assumptions, including those described below, and
involve known and unknown risks, uncertainties and other factors that may cause
the actual results, performance or achievements to differ materially from those
expressed in the forward-looking statements. Any forecasts or forward-looking
predictions or statements cannot be relied upon due to, among other things,
changing external events and general uncertainties of the business. Results
indicated in forward-looking statements may differ materially from actual
results for a number of reasons, including without limitation, risks associated
with the ability to obtain sufficient and suitable financing to support
operations, R&D clinical trials and commercialization of products; the
ability to execute partnerships and corporate alliances; uncertainties relating
to the regulatory approval process; the ability to develop drug delivery
technologies and manufacturing processes that result in competitive advantage
and commercial viability; the impact of competitive products and pricing and the
ability to successfully compete in the targeted markets; the successful and
timely completion of pre-clinical and clinical studies; the ability to attract
and retain key personnel and key collaborators; the ability to adequately
protect proprietary information and technology from competitors; and the ability
to ensure that we do not infringe upon the rights of third parties. Material
factors or assumptions that were applied in drawing a conclusion or making an
estimate set out in the forward-looking information include the factors
identified throughout this Prospectus. The forward-looking statements contained
in this Prospectus represent our expectations as of the date of this Prospectus,
and are subject to change after such date. We any intention or obligation to
update or revise any forward-looking statements whether as a result of new
information, future events or otherwise, except as required under applicable
securities regulations.
We undertake no obligation to update any
forward-looking statements to reflect events or circumstances after the date on
which such statements were made or to reflect the occurrence of unanticipated
events, except as may be required by applicable securities laws.
6
SUMMARY
The Company
IntelGenx Corp., our operating subsidiary, is a drug delivery
company established in 2003 and headquartered in Montreal, Quebec, Canada. In
this Prospectus, the words Company, IntelGenx we, us, and our, refer
collectively to IntelGenx Technologies Corp. and IntelGenx Corp., our wholly
owned Canadian subsidiary. Our focus is on the development of novel oral
immediate-release and controlled-release products for the pharmaceutical market.
More recently, we have made the strategic decision to enter the oral film market
and have implemented commercial oral film manufacturing capability. This enables
us to offer our partners a comprehensive portfolio of pharmaceutical services,
including pharmaceutical R&D, clinical monitoring, regulatory support, tech
transfer and manufacturing scale-up, and commercial manufacturing.
Recent Developments
Tilray
®
On September 20, 2018, we announced that we executed a
non-binding letter of intent (the LOI) with Tilray, Inc. (NASDAQ:TLRY)
(Tilray
®
), a global leader in cannabis research, cultivation,
production and distribution, to co-develop and commercialize oral film products
infused with recreational and medical cannabis (cannabis-infused VersaFilm),
in anticipation of amended cannabis regulations which would allow adult-use
consumers to purchase edible products.
We believe that dissolvable films for the consumption of
marijuana will appeal to both medicinal and recreational markets and that a
significant portion of those likely to use marijuana will find a dissolvable
film appealing, due to its ease-of-use, discreteness and lack of harmful
smoke.
Suboxone
®
On May 14, 2018, we announced that all patent
litigation between the Company, Par Pharmaceutical, Inc., Indivior, Inc.,
Indivior UK Limited, and Aquestive Therapeutics, Inc. (formerly MonoSol Rx, LLC)
related to Suboxone® film has been settled. The settlement agreement permits Par
to begin selling a generic version of Suboxone® film on January 1, 2023, or
earlier under certain circumstances. Par (now Endo Ventures) is the Companys
commercial and development partner for a generic version of Suboxone® sublingual
film product, which is indicated for the treatment of opioid dependence. We will have exclusive rights to manufacture and supply product to Endo
Ventures, while Endo Ventures will have exclusive rights to market and sell Suboxone supplied by the Company in the United States.
The Securities Offered under this Prospectus
We may offer the Common Stock, Warrants, Rights, Subscription
Receipts, Preferred Stock, Debt Securities or Units with a total value of up to
$100,000,000 from time to time under this Prospectus, together with any
applicable Prospectus Supplement and related free writing prospectus, if any, at
prices and on terms to be determined by market conditions at the time of
offering. This Prospectus provides you with a general description of the
Securities we may offer. Each time we offer Securities, we will provide a
Prospectus Supplement that will describe the specific amounts, prices and other
important terms of the Securities, including, to the extent applicable:
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aggregate offering price;
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the designation, number and terms of the Common Stock
purchasable upon exercise of the Warrants, any procedures that will result
in the adjustment of those numbers, the exercise price, dates and periods
of exercise, and the currency or the currency unit in which the exercise
price must be paid and any other specific terms;
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the record date for shareholders entitled to receive the
Rights, the designation, number and terms of the Common Stock or other
securities purchasable upon exercise of the Rights, any procedures that
will result in the adjustment of those numbers, the exercise price, dates
and periods of exercise, and the currency or the currency unit in which
the exercise price must be paid and any other specific terms;
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rates and times of payment of interest or dividends, if
any;
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7
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redemption, conversion, exchange or sinking funds terms,
if any;
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rank and security, if any;
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conversion or exchange prices or rates, if any, and if
applicable, any provision for changes or adjustment in the conversion or
exchange prices or rates in the securities or other property receivable
upon conversion or exchange;
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restrictive covenants, if any;
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voting or other rights, if any; and
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important United States and Canadian federal income tax
considerations.
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A Prospectus Supplement and any related free writing prospectus
that we may authorize to be provided to you may also add, update or change
information contained in this Prospectus or in documents we have incorporated by
reference. However, no Prospectus Supplement or free writing prospectus will
offer a security that is not registered and described in this Prospectus at the
time of the effectiveness of the registration statement of which this Prospectus
is a part.
We may sell the Securities on a continuous or delayed basis to
or through underwriters, dealers or agents or directly to purchasers. The
Prospectus Supplement, which we will provide to you each time we offer
Securities, will set forth the names of any underwriters, dealers or agents
involved in the sale of the Securities, and any applicable fee, commission or
discount arrangements with them.
Common Stock
We may offer Common Stock. Holders of Common Stock are entitled
to one vote per Common Stock on all matters that require shareholder approval.
Our Common Stock is described in greater detail in this
Prospectus under Description of Common Stock.
Warrants
We may offer Warrants for the purchase of Common Stock or
Preferred Stock, in one or more series, from time to time. We may issue Warrants
independently or together with Common Stock or Preferred Shares and the Warrants
may be attached to or separate from such securities.
The Warrants will be evidenced by warrant certificates and may
be issued under one or more warrant indentures, which are contracts between us
and a warrant trustee for the holders of the Warrants. In this Prospectus, we
have summarized certain general features of the Warrants under Description of
Warrants. We urge you, however, to read any Prospectus Supplement and any free
writing prospectus that we may authorize to be provided to you related to the
series of Warrants being offered, as well as the complete warrant indentures, if
applicable, and warrant certificates that contain the terms of the Warrants. If
applicable, specific warrant indentures will contain additional important terms
and provisions and will be filed as exhibits to the registration statement of
which this Prospectus is a part, or incorporated by reference from a current
report on Form 8-K that we file with the SEC.
Rights
We may offer Rights to our existing shareholders to purchase
additional Common Stock, preferred shares or other securities of the Company.
For any particular Rights, the applicable Prospectus Supplement will describe
the terms of such rights and rights agreement including the period during which
such Rights may be exercised, the manner of exercising such Rights, the
transferability of such Rights and the number of Common Stock or other
securities that may be purchased in connection with each right and the
subscription price for the purchase of such Common Stock or other securities. In
connection with a rights offering, we may enter into a separate agreement with
one or more underwriters or standby purchasers to purchase any securities not
subscribed for in the rights offering by existing shareholders, which will be
described in the applicable Prospectus Supplement. Each series of rights will be
issued under a separate rights agreement to be entered into between us and a
bank, trust company or transfer agent, as rights agent.
8
In this Prospectus, we have summarized certain general features
of the Rights under Description of Rights. We urge you, however, to read any
Prospectus Supplement and any free writing prospectus that we may authorize to
be provided to you related to the Rights being offered, as well as the complete
Rights certificates that contain the terms of the Rights. We may evidence each
series of rights by rights certificates that we may issue under a separate
rights agreement with a rights agent. If applicable, we will file as exhibits to
the registration statement of which this Prospectus is a part, or will
incorporate by reference from a current report on Form 8-K that we file with the
SEC, the rights agreements that describe the terms of the series of Rights we
are offering before the issuance of the related series of Rights.
Subscription Receipts
We may issue Subscription Receipts, which will entitle holders
to receive upon satisfaction of certain release conditions and for no additional
consideration, Common Stock, Preferred Stock, Warrants or other securities of
the Company or any combination thereof. Subscription Receipts will be issued
pursuant to one or more subscription receipt agreements, each to be entered into
between us and an escrow agent, which will establish the terms and conditions of
the Subscription Receipts. Each escrow agent will be a financial institution
organized under the laws of the United States or any state thereof or Canada or
any province thereof and authorized to carry on business as a trustee. A copy of
the form of subscription receipt agreement will be filed as an exhibit to the
registration statement of which this Prospectus is a part, or will be
incorporated by reference from a Current Report on Form 8-K that we file with
the SEC.
Preferred Stock
We may offer Preferred Stock. The Preferred Stock issuable in
series will have the rights, privileges, restrictions and conditions assigned to
the particular series upon the board of directors of the Company approving their
issuance, subject to the Companys articles of incorporation. The Series A
preferred shares are non-redeemable, non-callable, non-voting and do not have a
right to dividends. The terms of any preferred shares offered under this
Prospectus and any related agreements will be described in the Prospectus
Supplement filed in respect of the issuance of such preferred shares.
Debt Securities
We may offer secured or unsecured Debt Securities under this
Prospectus. The terms of any Debt Securities and any related agreements or
indentures will be described in a Prospectus Supplement to be filed in respect
of such offering.
Units
We may offer Units consisting of Common Stock, Warrants,
Preferred Stock, Rights, Subscription Receipts and Debt Securities in any
combination. In this Prospectus, we have summarized certain general features of
the Units under Description of Units. We urge you, however, to read any
Prospectus Supplement and any free writing prospectus that we may authorize to
be provided to you related to the series of Units being offered. We may evidence
each series of Units by unit certificates that we may issue under a separate
unit agreement with a unit agent. If applicable, we will file as exhibits to the
registration statement of which this Prospectus is a part, or will incorporate
by reference from a current report on Form 8-K that we file with the SEC, the
unit agreements that describe the terms of the series of Units we are offering
before the issuance of the related series of Units.
Risk Factors
See
Risk Factors,
as well as other information
included in this prospectus, for a discussion of factors you should read and
consider carefully before investing in our securities
9
OUR COMPANY
You should rely only on the information contained in this
Prospectus. We have not authorized anyone to provide you with information
different from that contained in this Prospectus. The distribution or possession
of this Prospectus in or from certain jurisdictions may be restricted by law.
This Prospectus is not an offer to sell these Securities and is not soliciting
an offer to buy these Securities in any jurisdiction where the offer or sale is
not permitted or where the person making the offer or sale is not qualified to
do so or to any person to whom it is not permitted to make such offer or sale.
The information contained in this Prospectus is accurate only as of the date of
this Prospectus, regardless of the time of delivery of this Prospectus or of any
sale of the Securities. Our business, financial condition, results of operations
and prospects may have changed since that date.
All amounts are U.S.$ unless otherwise indicated. Unless
otherwise indicated, the term year, fiscal year or fiscal refers to our
fiscal year ending December 31
st
.
Corporate History
Our predecessor company, Big Flash Corp., was incorporated in
Delaware on July 27, 1999. On April 28, 2006, Big Flash, through its Canadian
holding corporation, completed the acquisition of IntelGenx Corp., a Canadian
company incorporated on June 15, 2003. We did not have any operations
prior to the acquisition of IntelGenx Corp. In connection with the acquisition,
we changed our name from Big Flash Corp. to IntelGenx Technologies Corp.
IntelGenx Corp. has continued operations as our operating subsidiary.
Our Business
Overview
We are a drug delivery company established in 2003 and
headquartered in Montreal, Quebec, Canada. Our focus is on the development of
novel oral immediate-release and controlled-release products for the
pharmaceutical market. More recently, we have made the strategic decision to
enter the oral film market and have implemented commercial oral film
manufacturing capability. This enables us to offer our partners a comprehensive
portfolio of pharmaceutical services, including pharmaceutical R&D, clinical
monitoring, regulatory support, tech transfer and manufacturing scale-up, and
commercial manufacturing.
Our business strategy is to develop pharmaceutical products
based on our proprietary drug delivery technologies and, once the viability of a
product has been demonstrated, license the commercial rights to partners in the
pharmaceutical industry. In certain cases, we rely upon partners in the
pharmaceutical industry to fund development of the licensed products, complete
the regulatory approval process with the U.S. Food and Drug Administration
(FDA) or other regulatory agencies relating to the licensed products, and
assume responsibility for marketing and distributing such products.
In addition, we may choose to pursue the development of certain
products until the project reaches the marketing and distribution stage. We will
assess the potential for successful development of a product and associated
costs, and then determine at which stage it is most prudent to seek a partner,
balancing such costs against the potential for additional returns earned by
partnering later in the development process.
Managing our project pipeline is a key success factor for the
Company. We have undertaken a strategy under which we will work with
pharmaceutical companies in order to apply our oral film technology to
pharmaceutical products for which patent protection is nearing expiration, a
strategy which is often referred to as lifecycle management. Under §505(b)(2)
of the Food, Drug, and Cosmetics Act, the FDA may grant market exclusivity for a
term of up to three years following approval of a listed drug that contains
previously approved active ingredients but is approved in a new dosage, dosage
form, route of administration or combination.
The 505(b)(2) pathway is also the regulatory approach to be
followed if an applicant intends to file an application for a product containing
a drug that is already approved by the FDA for a certain indication and for
which the applicant is seeking approval for a new indication or for a new use,
the approval of which is required to be supported by new clinical trials, other
than bioavailability studies. We have implemented a strategy under which we
actively look for such so-called repurposing opportunities and
determine whether our proprietary VersaFilm technology adds value to the
product. We currently have two such drug repurposing projects in our development
pipeline.
10
We continue to develop the existing products in our pipeline
and may also perform research and development on other potential products as
opportunities arise.
We have established a state-of-the-art manufacturing facility
with the intent to manufacture all our VersaFilm products in-house as we
believe that this:
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represents a profitable business opportunity,
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will reduce our dependency upon third-party contract
manufacturers, thereby protecting our manufacturing process know-how and
intellectual property, and
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3.
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allows us to offer our clients and development partners a
full service from product conception through to supply of the finished
product.
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Recent Developments
On September 20, 2018, we announced that we executed a
non-binding letter of intent (the LOI) with Tilray, Inc. (NASDAQ:TLRY)
(Tilray®), a global leader in cannabis research, cultivation, production and
distribution, to co-develop and commercialize oral film products infused with
recreational and medical cannabis (cannabis-infused VersaFilm), in
anticipation of amended cannabis regulations which would allow adult-use
consumers to purchase edible products.
Pursuant to the LOI, subject to entering into a definitive
agreement and the satisfaction of customary closing conditions, IntelGenx and
Tilray® will fund 20% and 80% of the costs associated with the development of
the cannabis-infused VersaFilm products, respectively. We will have rights to
manufacture and supply the co-developed products to Tilray®, and will also
receive a fixed single-digit royalty on net product sales. Tilray® will have the
exclusive, worldwide marketing and distribution rights for the co-developed
products.
The LOI also contemplates that, at the time of entering into
the definitive agreement, Tilray
®
will make a strategic investment in
IntelGenx by way of a non-brokered private placement (Private Placement).
Tilray
®
will purchase 1,250,000 shares of Common Stock of IntelGenx
at a price of USD$0.80 per share, which is equal to the five-day volume weighted
average closing price of IntelGenx common stock on the OTCQX for the period
ended September 18, 2018. IntelGenx intends to use the proceeds from the Private
Placement for cannabis-infused VersaFilm product development in connection with
the LOI. The Private Placement will be subject to the approval of the TSX-V.
We believe that dissolvable films for the consumption of
marijuana will appeal to both medicinal and recreational markets and that a
significant portion of those likely to use marijuana will find a dissolvable
film appealing, due to its ease-of-use, discreteness and lack of harmful
smoke.
On May 14, 2018, we announced that all patent
litigation between the Company, Par Pharmaceutical, Inc., Indivior, Inc.,
Indivior UK Limited, and Aquestive Therapeutics, Inc. (formerly MonoSol Rx, LLC)
related to Suboxone® film has been settled. The settlement agreement permits Par
to begin selling a generic version of Suboxone® film on January 1, 2023, or
earlier under certain circumstances. Par (now Endo Ventures) is the Companys
commercial and development partner for a generic version of Suboxone® sublingual
film product, which is indicated for the treatment of opioid dependence. We will have exclusive rights to manufacture and supply product to Endo
Ventures, while Endo Ventures will have exclusive rights to market and sell Suboxone supplied by the Company in the United States.
Our Offices and Other Corporate Information
Our executive offices are located at 6420 Abrams, Ville
Saint-Laurent, Quebec, H4S 1Y2, Canada, and our telephone number is (514)
331-7440. Our web site address is
http://www.IntelGenx.com
. Information
contained on our web site is not a part of this Prospectus.
11
The Securities Offered under this Prospectus
We may offer the Common Stock, Warrants, Rights, Subscription
Receipts, Preferred Stock, Debt Securities or Units with a total value of up to
$100,000,000 from time to time under this Prospectus, together with any
applicable Prospectus Supplement and related free writing prospectus, if any, at
prices and on terms to be determined by market conditions at the time of
offering. This Prospectus provides you with a general description of the
Securities we may offer. Each time we offer Securities, we will provide a
Prospectus Supplement that will describe the specific amounts, prices and other
important terms of the Securities, including, to the extent applicable:
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aggregate offering price;
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the designation, number and terms of the Common Stock
purchasable upon exercise of the Warrants, any procedures that will result
in the adjustment of those numbers, the exercise price, dates and periods
of exercise, and the currency or the currency unit in which the exercise
price must be paid and any other specific terms;
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the record date for stockholders entitled to receive the
Rights, the designation, number and terms of the Common Stock or other
securities purchasable upon exercise of the Rights, any procedures that
will result in the adjustment of those numbers, the exercise price, dates
and periods of exercise, and the currency or the currency unit in which
the exercise price must be paid and any other specific terms;
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rates and times of payment of interest or dividends, if
any;
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redemption, conversion, exchange or sinking funds terms,
if any;
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rank and security, if any;
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conversion or exchange prices or rates, if any, and if
applicable, any provision for changes or adjustment in the conversion or
exchange prices or rates in the Securities or other property receivable
upon conversion or exchange;
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restrictive covenants, if any;
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voting or other rights, if any; and
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important United States and Canadian federal income tax
considerations.
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A Prospectus Supplement and any related free writing prospectus
that we may authorize to be provided to you may also add, update or change
information contained in this Prospectus or in documents we have incorporated by
reference. However, no Prospectus Supplement or free writing prospectus will
offer a security that is not registered and described in this Prospectus at the
time of the effectiveness of the registration statement of which this Prospectus
is a part.
We may sell the Securities on a continuous or delayed basis to
or through underwriters, dealers or agents or directly to purchasers. The
Prospectus Supplement, which we will provide to you each time we offer
Securities, will set forth the names of any underwriters, dealers or agents
involved in the sale of the Securities, and any applicable fee, commission or
discount arrangements with them.
Common Stock
We may offer Common Stock. Holders of Common Stock are entitled
to one vote per share of Common Stock on all matters that require stockholder
approval.
Our Common Stock is described in greater detail in this
Prospectus under Description of Common Stock.
Warrants
We may offer Warrants for the purchase of Common Stock or
Preferred Stock, in one or more series, from time to time. We may issue Warrants
independently or together with Common Stock or Preferred Stock and the Warrants
may be attached to or separate from such securities.
The Warrants issued to U.S. investors may be evidenced by
warrant certificates and may be issued under one or more warrant indentures,
which are contracts between us and a warrant trustee for the holders of the
Warrants. In this Prospectus, we have summarized certain general features of the
Warrants under Description of Warrants. We urge you, however, to read any
Prospectus Supplement and any free writing prospectus that we may authorize to
be provided to you related to the series of Warrants being offered, as well as
the complete warrant indentures, if applicable, and warrant certificates that
contain the terms of the Warrants. If applicable, specific warrant
indentures will contain additional important terms and provisions and will
be filed as exhibits to the registration statement of which this Prospectus is a
part, or incorporated by reference from a current report on Form 8-K that we
file with the SEC.
12
Rights
We may offer Rights to our existing stockholders to purchase
additional Common Stock, Preferred Stock or other securities of the Company. For
any particular Rights, the applicable Prospectus Supplement will describe the
terms of such rights and rights agreement including the period during which such
Rights may be exercised, the manner of exercising such Rights, the
transferability of such Rights and the number of Common Stock or other
securities that may be purchased in connection with each right and the
subscription price for the purchase of such Common Stock or other securities. In
connection with a rights offering, we may enter into a separate agreement with
one or more underwriters or standby purchasers to purchase any securities not
subscribed for in the rights offering by existing stockholders, which will be
described in the applicable Prospectus Supplement. Each series of rights will be
issued under a separate rights agreement to be entered into between us and a
bank, trust company or transfer agent, as rights agent.
In this Prospectus, we have summarized certain general features
of the Rights under Description of Rights. We urge you, however, to read any
Prospectus Supplement and any free writing prospectus that we may authorize to
be provided to you related to the Rights being offered, as well as the complete
Rights certificates that contain the terms of the Rights. We may evidence each
series of rights by rights certificates that we may issue under a separate
rights agreement with a rights agent. If applicable, we will file as exhibits to
the registration statement of which this Prospectus is a part, or will
incorporate by reference from a current report on Form 8-K that we file with the
SEC, the rights agreements that describe the terms of the series of Rights we
are offering before the issuance of the related series of Rights.
Subscription Receipts
We may issue Subscription Receipts, which will entitle holders
to receive upon satisfaction of certain release conditions and for no additional
consideration, Common Stock, Preferred Stock, Warrants or other securities of
the Company or any combination thereof. Subscription Receipts will be issued
pursuant to one or more subscription receipt agreements, each to be entered into
between us and an escrow agent, which will establish the terms and conditions of
the Subscription Receipts. Each escrow agent will be a financial institution
organized under the laws of the United States or any state thereof or Canada or
any province thereof and authorized to carry on business as a trustee. A copy of
the form of subscription receipt agreement will be filed as an exhibit to the
registration statement of which this Prospectus is a part, or will be
incorporated by reference from a Current Report on Form 8-K that we file with
the SEC.
Preferred Stock
We may offer Preferred Stock. The Preferred Stock issuable in
series will have the rights, privileges, restrictions and conditions assigned to
the particular series upon the board of directors of the Company approving their
issuance, subject to the Companys articles of incorporation. The terms of any
Preferred Stock offered under this Prospectus and any related agreements will be
described in the Prospectus Supplement filed in respect of the issuance of such
Preferred Stock.
Debt Securities
We may offer secured or unsecured Debt Securities under this
Prospectus. The terms of any Debt Securities and any related agreements or
indentures will be described in a Prospectus Supplement to be filed in respect
of such offering.
Units
We may offer Units consisting of Common Stock, Warrants,
Preferred Stock, Rights, Subscription Receipts and Debt Securities in any
combination. In this Prospectus, we have summarized certain general features of
the Units under Description of Units. We urge you, however, to read any
Prospectus Supplement and any free writing prospectus that we may authorize to
be provided to you related to the series of Units being offered. We may evidence each series of Units by unit certificates that we may
issue under a separate unit agreement with a unit agent. If applicable, we will
file as exhibits to the registration statement of which this Prospectus is a
part, or will incorporate by reference from a current report on Form 8-K that we
file with the SEC, the unit agreements that describe the terms of the series of
Units we are offering before the issuance of the related series of Units.
13
Risk Factors
See Risk Factors, as well as other information included in
this prospectus, for a discussion of factors you should read and consider
carefully before investing in our Securities
THIS PROSPECTUS MAY NOT BE USED TO OFFER OR SELL ANY
SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
RISK FACTORS
Our business faces many risks. Any of the risks discussed
below, or elsewhere in this report or in our other filings with the SEC, could
have a material impact on our business, financial condition, or results of
operations.
You should carefully consider the risks described under the
heading, "Risk Factors", in our most recent Annual Report on Form 10-K for the
fiscal year ended December 31, 2017 which are incorporated by reference into
this Prospectus before making an investment decision. You should also refer to
the other information in this Prospectus or incorporated by reference into this
Prospectus, including our financial statements and the related notes thereto.
The risks and uncertainties described in this Prospectus or incorporated by
reference into this Prospectus are not the only risks and uncertainties we face.
Additional risks and uncertainties not presently known to us or that we
currently deem immaterial also may impair our business operations. If any of the
risks described actually occur, our business, results of operations and
financial condition could suffer. In that event the trading price of our Common
Stock could decline. The risks described also include forward looking statements
and our actual results may differ substantially from those discussed in these
forward-looking statements.
You may experience future dilution as a result of future
equity offerings.
In order to raise additional capital, we may in the future
offer additional shares of Common Stock or other securities convertible into or
exchangeable for Common Stock at prices that may not be the same as the price
per share paid by any investor in an offering in a subsequent Prospectus
Supplement. We may sell shares or other securities in any other offering at a
price per share that is less than the price per share paid by any investor in an
offering in a subsequent Prospectus Supplement, and investors purchasing shares
or other securities in the future could have rights superior to you. The price
per share at which we sell additional shares of Common Stock or securities
convertible or exchangeable into Common Stock, in future transactions may be
higher or lower than the price per share paid by any investor in an offering
under a subsequent Prospectus Supplement.
Future offerings of debt or preferred equity securities,
which would rank senior to our Common Stock, may adversely affect the market
price of our Common Stock.
If, in the future, we decide to issue debt or preferred equity
securities that may rank senior to our Common Stock, it is likely that such
securities will be governed by an indenture or other instrument containing
covenants restricting our operating flexibility. Any convertible or exchangeable
securities that we issue in the future may have rights, preferences and
privileges more favorable than those of our Common Stock and may result in
dilution to owners of our Common Stock. We and, indirectly, our stockholders,
will bear the cost of issuing and servicing such securities. Because our
decision to issue debt or equity securities in any future offering will depend
on market conditions and other factors beyond our control, we cannot predict or
estimate the amount, timing or nature of our future offerings. Thus, holders of
our Common Stock will bear the risk of our future offerings reducing the market
price of our Common Stock and diluting the value of their stock holdings in us.
14
There can be no assurance as to the liquidity of the
trading market for certain Securities or that a trading market for certain
Securities will develop.
There is no public market for the Warrants, Preferred Stock,
Rights, Subscription Receipts or Debt Securities and, unless otherwise specified
in the applicable Prospectus Supplement, the Company does not intend to apply
for listing of these securities on any securities exchange. If these securities
are traded after their initial issue, they may trade at a discount from their
initial offering prices depending on the market for similar securities,
prevailing interest rates and other factors, including general economic
conditions and the Companys financial condition. There can be no assurance as
to the liquidity of the trading market for any Warrants, Preferred Stock,
Rights, Subscription Receipts or Debt Securities or that a trading market for
these securities will develop.
We have entered into certain non-binding agreements and
there can be no assurance that they materialize into a definitive agreement or
transaction.
Consistent with its past practice and in the normal course, the
Company has outstanding non-binding letters of intent and/or conditional
agreements or may otherwise be engaged in discussions with respect to possible
collaborations, studies, product development or acquisitions which may or may
not be material, including, without limitation, the non-binding letter of intent
dated September 20, 2018 with Tilray
®
. There is no assurance that any
of these letters, agreements and/or discussions will result in a definitive
agreement or, if they do, what the final terms or timing of any such
transactions would be, whether such transactions will generate revenues, be
profitable for the Company, or be well-received by the marketplace.
USE OF PROCEEDS
Unless the applicable Prospectus Supplement states otherwise,
we will use the net proceeds we receive from the sale of the Securities for
general corporate purposes, which may include, among other things, working
capital, capital expenditures, debt repayment, the financing of possible
acquisitions or stock repurchases. The prospectus supplement relating to a
particular offering of Securities by us will identify the use of proceeds for
that offering.
DESCRIPTION OF COMMON STOCK
We are authorized to issue 200,000,000 shares of Common
Stock with a par value of $0.00001. As at October 4, 2018, there were
73,491,539 shares of Common Stock issued and outstanding.
The holders of Common Stock are entitled to one vote per share
on all matters voted on by stockholders, including the election of directors.
Except as otherwise required by law, the holders of Common Stock exclusively
possess all voting power. The holders of Common Stock are entitled to dividends
as may be declared from time to time by our board of directors from funds
available for distribution to holders. No holder of Common Stock has any
pre-emptive right to subscribe to any securities of ours of any kind or class or
any cumulative voting rights. The outstanding shares of Common Stock are, and
the shares, upon issuance and sale as contemplated will be, duly authorized,
validly issued, fully paid and non-assessable.
Rights Upon Dissolution or Winding Up
The Delaware General Corporation Law provides that upon
dissolution, liquidation or winding-up of the Company, holders of common stock
have the lowest priority in the distribution of assets and will only receive a
distribution if all senior obligations have been paid. If all senior obligations
have been paid, the holders of shares of Common Stock will be entitled to
receive our assets available for distribution proportionate to their pro rata
ownership of the outstanding shares of common stock.
Anti-Takeover Effects of Various Provisions of Delaware Law
and Our Certificate of Incorporation and Bylaws
The Delaware General Corporation Law, our certificate of
incorporation and our by-laws contain provisions that may have some
anti-takeover effects and may delay, defer or prevent a tender offer or takeover
attempt that a stockholder might consider in his, her or its best interest,
including those attempts that might result in a premium over the market price
for the shares held by stockholders.
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Delaware Anti-Takeover Statute
We are subject to Section 203 of the Delaware General
Corporation Law (Section 203). Subject to specific exceptions, Section 203
prohibits a publicly held Delaware corporation from engaging in a business
combination with an interested stockholder for a period of three years after
the time the stockholder becomes an interested stockholder, unless:
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the business combination, or the transaction in which the
stockholder became an interested stockholder, is approved by our board of
directors prior to the time the interested stockholder attained that
status;
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upon consummation of the transaction that resulted in the
stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of our voting stock outstanding at the time the
transaction commenced, excluding those shares owned by persons who are
directors and also officers and employee stock plans in which employee
participants do not have the right to determine confidentially whether
shares held subject to the plan will be tendered in a tender or exchange
offer; or
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at or after the time a stockholder became an interested
stockholder, the business combination is approved by our board of
directors and authorized at an annual or special meeting of stockholders
by the affirmative vote of at least two-thirds of our outstanding voting
stock that is not owned by the interested stockholder.
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Business combinations include mergers, asset sales and other
transactions resulting in a financial benefit to the interested stockholder.
Subject to various exceptions, in general, an interested stockholder is a
stockholder who, together with his, her or its affiliates and associates, owns,
or within three years did own, 15% or more of the shares of our outstanding
voting stock. These restrictions could prohibit or delay the accomplishment of
mergers or other takeover or change of control attempts with respect to us and,
therefore, may discourage attempts to acquire us.
DESCRIPTION OF WARRANTS
The following description, together with the additional
information we may include in any applicable Prospectus Supplements and free
writing prospectuses, summarizes the material terms and provisions of the
Warrants that we may offer under this Prospectus, which will consist of Warrants
to purchase Common Stock or Preferred Stock and may be issued in one or more
series. Warrants may be offered independently or together with Common Stock or
Preferred Stock, Rights or any combination thereof, and may be attached to or
separate from those Securities. While the terms we have summarized below will
apply generally to any Warrants that we may offer under this Prospectus, we will
describe the particular terms of any series of Warrants that we may offer in
more detail in the applicable Prospectus Supplement and any applicable free
writing prospectus. The terms of any Warrants offered under a Prospectus
Supplement may differ from the terms described below.
General
Warrants may be issued under and governed by the terms of one
or more warrant indentures (each of which we refer to as a Warrant Indenture)
between us and a warrant trustee (which we refer to as the Warrant Trustee)
that we will name in the relevant Prospectus Supplement, if applicable. Each
Warrant Trustee will be a financial institution organized under the laws of
Canada, the United States, or any province or state thereof, and authorized to
carry on business as a trustee.
This summary of some of the provisions of the Warrants is not
complete. The statements made in this Prospectus relating to any Warrant
Indenture and Warrants to be issued under this Prospectus are summaries of
certain anticipated provisions thereof and do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all provisions
of the Warrant Indenture, if any, and the Warrant certificate. Prospective
investors should refer to the Warrant Indenture, if any, and the Warrant
certificate relating to the specific Warrants being offered for the complete
terms of the Warrants. If applicable, we will file as exhibits to the
registration statement of which this Prospectus is a part, or will incorporate
by reference from a Current Report on Form 8-K that we file with the SEC, any
Warrant Indenture describing the terms and conditions of Warrants we are
offering before the issuance of such Warrants.
The applicable Prospectus Supplement relating to any Warrants
offered by us will describe the particular terms of those Warrants and include
specific terms relating to the offering. This description will include, where
applicable:
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the designation and aggregate number of
Warrants;
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the price at which the Warrants will be offered;
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the currency or currencies in which the Warrants will be
offered;
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the date on which the right to exercise the Warrants will
commence and the date on which the right will expire;
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the number of shares of Common Stock or Preferred Stock
that may be purchased upon exercise of each Warrant and the price at which
and currency or currencies in which the Common Stock or Preferred Stock
may be purchased upon exercise of each Warrant;
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the designation and terms of any Securities with which
the Warrants will be offered, if any, and the number of the Warrants that
will be offered with each Security;
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the date or dates, if any, on or after which the Warrants
and the other Securities with which the Warrants will be offered will be
transferable separately;
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whether the Warrants will be subject to redemption and,
if so, the terms of such redemption provisions;
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whether we will issue the Warrants as global securities
and, if so, the identity of the depositary of the global securities;
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whether the Warrants will be listed on any exchange;
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material United States and Canadian federal income tax
consequences of acquiring, owning, exercising and disposing of the
Warrants; and
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any other material terms or conditions of the Warrants.
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Rights of Holders Prior to Exercise
Prior to the exercise of their Warrants, holders of Warrants
will not have any of the rights of holders of the Common Stock or Preferred
Stock issuable upon exercise of the Warrants.
Exercise of Warrants
Each Warrant will entitle the holder to purchase the Common
Stock or Preferred Stock that we specify in the applicable Prospectus Supplement
at the exercise price that we describe therein. Unless we otherwise specify in
the applicable Prospectus Supplement, holders of the Warrants may exercise the
Warrants at any time up to the specified time on the expiration date that we set
forth in the applicable Prospectus Supplement. After the close of business on
the expiration date, unexercised Warrants will become void.
Holders of the Warrants may exercise the Warrants by delivering
the Warrant certificate representing the Warrants to be exercised together with
specified information, and paying the required amount to the Warrant Trustee, if
any, or to us, as applicable, in immediately available funds, as provided in the
applicable Prospectus Supplement. We will set forth on the Warrant certificate
and in the applicable Prospectus Supplement the information that the holder of
the Warrant will be required to deliver to the Warrant Trustee, if any, or to
us, as applicable.
Upon receipt of the required payment and the Warrant
certificate properly completed and duly executed at the corporate trust office
of the Warrant Trustee, if any, to us at our principal offices, as applicable,
or any other office indicated in the applicable Prospectus Supplement, we will
issue and deliver the Common Stock or Preferred Stock purchasable upon such
exercise. If fewer than all of the Warrants represented by the Warrant
certificate are exercised, then we will issue a new Warrant certificate for the
remaining amount of Warrants. If we so indicate in the applicable Prospectus
Supplement, holders of the Warrants may surrender securities as all or part of
the exercise price for Warrants.
Anti-Dilution
The Warrant Indenture, if any, and the Warrant certificate will
specify that upon the subdivision, consolidation, reclassification or other
material change of the Common Stock or Preferred Stock or any other
reorganization, amalgamation, merger or sale of all or substantially all of our
assets, the Warrants will thereafter evidence the right of the holder to receive
the securities, property or cash deliverable in exchange for or on the
conversion of or in respect of the Common Stock or Preferred Stock to which such
holder would have been entitled immediately after such event. Similarly, any
distribution to all or substantially all of the holders of Common Stock or
Preferred Stock of rights, options, warrants, evidences of indebtedness or
assets will result in an adjustment in the number of shares of Common Stock or
Preferred Stock to be issued to holders of Warrants, as applicable.
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Global Securities
We may issue Warrants in whole or in part in the form of one or
more global securities, which will be registered in the name of and be deposited
with a depositary, or its nominee, each of which will be identified in the
applicable Prospectus Supplement. The global securities may be in temporary or
permanent form. The applicable Prospectus Supplement will describe the terms of
any depositary arrangement and the rights and limitations of owners of
beneficial interests in any global security. The applicable Prospectus
Supplement will describe the exchange, registration and transfer rights relating
to any global security.
Modifications
The Warrant Indenture, if any, will provide for modifications
and alterations to the Warrants issued thereunder by way of a resolution of
holders of Warrants at a meeting of such holders or a consent in writing from
such holders. The number of holders of Warrants required to pass such a
resolution or execute such a written consent will be specified in the Warrant
Indenture, if any.
We may amend any Warrant Indenture and the Warrants, without
the consent of the holders of the Warrants, to cure any ambiguity, to cure,
correct or supplement any defective or inconsistent provision, or in any other
manner that will not materially and adversely affect the interests of holders of
outstanding Warrants.
DESCRIPTION OF RIGHTS
The following description, together with the additional
information we may include in any applicable Prospectus Supplements and free
writing prospectuses, summarizes the material terms and provisions of the Rights
that we may offer under this Prospectus. Rights may be offered independently or
together with Common Stock, Warrants, Preferred Stock or other security, or a
combination thereof, and may be attached to or separate from those Securities.
While the terms we have summarized below will apply generally to any Rights that
we may offer under this Prospectus, we will describe the particular terms of any
series of Rights in more detail in the applicable Prospectus Supplement. The
terms of any Rights offered under a Prospectus Supplement may differ from the
terms described below.
General
Rights may be issued independently or together with any other
security and may or may not be transferable. As part of any rights offering, we
may enter into a standby underwriting or other arrangement under which the
underwriters or any other person would purchase any securities that are not
purchased in such rights offering. If we issue Rights, each series of Rights
will be issued under a separate rights agreement to be entered into between us
and a bank, trust company or transfer agent, as rights agent, that will be named
in the applicable Prospectus Supplement. Further terms of the Rights will be
stated in the applicable Prospectus Supplement. The rights agent will act solely
as our agent and will not assume any obligation to any holders of Rights
certificates or beneficial owners of Rights. The rights agreements and rights
certificates will be filed with the SEC as an exhibit to the registration
statement of which this Prospectus is a part or as an exhibit to a filing
incorporated by reference in the registration statement.
The Prospectus Supplement relating to any Rights we offer will
describe the specific terms of the offering and the Rights, including the record
date for stockholders entitled to the Rights distribution, the number of Rights
issued and the number of shares of Common Stock or other securities that may be
purchased upon exercise of the Rights, the exercise price of the Rights, the
date on which the Rights will become effective and the date on which the Rights
will expire, and any applicable U.S. and Canadian federal income tax
considerations.
In general, a Right entitles the holder to purchase for cash a
specific number of shares of Common Stock or other securities at a specified
exercise price. The Rights are normally issued to stockholders as of a specific
record date, may be exercised only for a limited period of time and become void
following the expiration of such period. If we decide to issue Rights, we will accompany this Prospectus with
a Prospectus Supplement that will describe, among other things:
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the number of shares of Common Stock or other securities
that may be purchased upon exercise of each Right;
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the exercise price of the Rights;
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the terms for changes to or adjustments in the exercise
price, if any;
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whether the Rights are transferable;
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the period during which the Rights may be exercised and
when they will expire;
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the steps required to exercise the Rights;
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whether the Rights include oversubscription rights so
that the holder may purchase more securities if other holders do not
purchase their full allotments;
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whether we intend to sell Common Stock or other
securities that are not purchased in the rights offering to an underwriter
or other purchaser under a contractual standby commitment or other
arrangement;
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our ability to withdraw or terminate the rights offering;
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material United States and Canadian federal income tax
consequences of acquiring, owning, exercising and disposing of Rights; and
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other material terms, including terms relating to
transferability, exchange, exercise or amendment of the Rights.
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If fewer than all of the Rights issued in any rights offering
are exercised, we may offer any unsubscribed securities directly to persons
other than stockholders, to or through agents, underwriters or dealers or
through a combination of such methods, including pursuant to standby
arrangements, as described in the applicable Prospectus Supplement. After the
close of business on the expiration date, all unexercised Rights will become
void.
Prior to the exercise of a holders Rights, the holder will not
have any of the rights of holders of the securities issuable upon the exercise
of the Rights and will not be entitled to, among other things, vote or receive
dividend payments or other distributions on the securities purchasable upon
exercise.
DESCRIPTION OF SUBSCRIPTION RECEIPTS
We may issue Subscription Receipts, which will entitle holders
to receive upon satisfaction of certain release conditions and for no additional
consideration, Common Stock, Warrants, Preferred Stock or any combination
thereof. Subscription Receipts will be issued pursuant to one or more
subscription receipt agreements (each, a Subscription Receipt Agreement), each
to be entered into between us and an escrow agent (the Escrow Agent), which
will establish the terms and conditions of the Subscription Receipts. Each
Escrow Agent will be a financial institution organized under the laws of the
United States or a state thereof or Canada or a province thereof and authorized
to carry on business as a trustee. We will file as exhibits to the registration
statement of which this Prospectus is a part, or will incorporate by reference
from a Current Report on Form 8-K that we file with the SEC, any Subscription
Receipt Agreement describing the terms and conditions of Subscription Receipts
we are offering before the issuance of such Subscription Receipts.
The following description sets forth certain general terms and
provisions of Subscription Receipts and is not intended to be complete. The
statements made in this Prospectus relating to any Subscription Receipt
Agreement and Subscription Receipts to be issued thereunder are summaries of
certain anticipated provisions thereof and are subject to, and are qualified in
their entirety by reference to, all provisions of the applicable Subscription
Receipt Agreement and the Prospectus Supplement describing such Subscription
Receipt Agreement.
The Prospectus Supplement relating to any Subscription Receipts
we offer will describe the Subscription Receipts and include specific terms
relating to their offering. All such terms will comply with the requirements of
the TSX-V and OTCQX relating to Subscription Receipts. If underwriters or agents
are used in the sale of Subscription Receipts, one or more of such underwriters
or agents may also be parties to the Subscription Receipt Agreement governing
the Subscription Receipts sold to or through such underwriters or agents.
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General
The Prospectus Supplement and the Subscription Receipt
Agreement for any Subscription Receipts we offer will describe the specific
terms of the Subscription Receipts and may include, but are not limited to, any
of the following:
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the designation and aggregate number of Subscription
Receipts offered;
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the price at which the Subscription Receipts will be
offered;
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the currency or currencies in which the Subscription
Receipts will be offered;
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the designation, number and terms of the Common Stock,
Warrants, Preferred Stock or combination thereof to be received by holders
of Subscription Receipts upon satisfaction of the release conditions, and
the procedures that will result in the adjustment of those numbers;
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the conditions (the Release Conditions) that must be
met in order for holders of Subscription Receipts to receive for no
additional consideration Common Stock, Warrants, Preferred Stock or a
combination thereof;
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the procedures for the issuance and delivery of Common
Stock, Warrants, Preferred Stock or a combination thereof to holders of
Subscription Receipts upon satisfaction of the Release Conditions;
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whether any payments will be made to holders of
Subscription Receipts upon delivery of the Common Stock, Warrants,
Preferred Stock or a combination thereof upon satisfaction of the Release
Conditions (e.g., an amount equal to dividends declared on Common Stock or
Preferred Stock by us to holders of record during the period from the date
of issuance of the Subscription Receipts to the date of issuance of any
Common Stock or Preferred Stock pursuant to the terms of the Subscription
Receipt Agreement);
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the terms and conditions under which the Escrow Agent
will hold all or a portion of the gross proceeds from the sale of
Subscription Receipts, together with interest and income earned thereon
(collectively, the Escrowed Funds), pending satisfaction of the Release
Conditions;
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the terms and conditions pursuant to which the Escrow
Agent will hold Common Stock or Warrants or Preferred Stock or a
combination thereof pending satisfaction of the Release Conditions;
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the terms and conditions under which the Escrow Agent
will release all or a portion of the Escrowed Funds to us upon
satisfaction of the Release Conditions;
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if the Subscription Receipts are sold to or through
underwriters or agents, the terms and conditions under which the Escrow
Agent will release a portion of the Escrowed Funds to such underwriters or
agents in payment of all or a portion of their fees or commission in
connection with the sale of the Subscription Receipts;
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procedures for the refund by the Escrow Agent to holders
of Subscription Receipts of all or a portion of the subscription price for
their Subscription Receipts, plus any pro rata entitlement to interest
earned or income generated on such amount, if the Release Conditions are
not satisfied;
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any entitlement of the Company to purchase the
Subscription Receipts in the open market by private agreement or
otherwise;
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whether we will issue the Subscription Receipts as global
securities and, if so, the identity of the depositary for the global
securities;
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whether we will issue the Subscription Receipts as bearer
securities, registered securities or both;
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provisions as to modification, amendment or variation of
the Subscription Receipt Agreement or any rights or terms attaching to the
Subscription Receipts;
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the identity of the Escrow Agent;
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whether the Subscription Receipts will be listed on any
exchange;
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material United States and Canadian federal tax
consequences of acquiring, owning, receiving securities in exchange and
disposing of the Subscription Receipts; and
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any other terms of the Subscription Receipts.
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In addition, the Prospectus Supplement and the Subscription
Receipt Agreement for any Subscription Receipts we offer will describe all
contractual rights of rescission that will be granted to initial purchasers of
Subscription Receipts in the event this Prospectus, the Prospectus Supplement
under which the Subscription Receipts are issued or any amendment hereto or
thereto contains a misrepresentation, as discussed further under the
sub-paragraph entitled Rescission below.
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The holders of Subscription Receipts will not be stockholders
of the Company. Holders of Subscription Receipts are entitled only to receive
Common Stock, Warrants, Preferred Stock or a combination thereof on exchange of
their Subscription Receipts, plus any cash payments provided for under the
Subscription Receipt Agreement, if the Release Conditions are satisfied. If the
Release Conditions are not satisfied, the holders of Subscription Receipts shall
be entitled to a refund of all or a portion of the subscription price therefor
and all or a portion of the pro rata share of interest earned or income
generated thereon, as provided in the Subscription Receipt Agreement.
Escrow
The Escrowed Funds will be held in escrow by the Escrow Agent,
and such Escrowed Funds will be released to us (and, if the Subscription
Receipts are sold to or through underwriters or agents, a portion of the
Escrowed Funds may be released to such underwriters or agents in payment of all
or a portion of their fees in connection with the sale of the Subscription
Receipts) at the time and under the terms specified by the Subscription Receipt
Agreement. If the Release Conditions are not satisfied, holders of Subscription
Receipts will receive a refund of all or a portion of the subscription price for
their Subscription Receipts plus their pro rata entitlement to interest earned
or income generated on such amount, in accordance with the terms of the
Subscription Receipt Agreement. Common Stock or Warrants or Preferred Stock may
be held in escrow by the Escrow Agent, and will be released to the holders of
Subscription Receipts following satisfaction of the Release Conditions at the
time and under the terms specified in the Subscription Receipt Agreement.
Anti-Dilution
The Subscription Receipt Agreement will specify that upon the
subdivision, consolidation, reclassification or other material change of the
Common Stock or Warrants or Preferred Stock, as applicable, or any other
reorganization, amalgamation, merger or sale of all or substantially all of our
assets, the Subscription Receipts will thereafter evidence the right of the
holder to receive the securities, property or cash deliverable in exchange for
or on the conversion of or in respect of the Common Stock or Warrants or
Preferred Stock to which the holder of a share of Common Stock or Warrant or
share of Preferred Stock would have been entitled immediately after such event.
Similarly, any distribution to all or substantially all of the holders of Common
Stock or Preferred Stock, as applicable, of rights, options, warrants, evidences
of indebtedness or assets will result in an adjustment in the number of shares
of Common Stock or Preferred Stock, as applicable, to be issued to holders of
Subscription Receipts whose Subscription Receipts entitle the holders thereof to
receive Common Stock or Preferred Stock, as applicable. Alternatively, such
securities, evidences of indebtedness or assets may, at our option, be issued to
the Escrow Agent and delivered to holders of Subscription Receipts on exercise
thereof. The Subscription Receipt Agreement will also provide that if other
actions of the Company affect the Common Stock or Warrants or Preferred Stock,
as applicable, which, in the reasonable opinion of our directors, would
materially affect the rights of the holders of Subscription Receipts and/or the
rights attached to the Subscription Receipts, the number of shares of Common
Stock or Warrants or the number of shares of Preferred Stock, as applicable,
which are to be received pursuant to the Subscription Receipts shall be adjusted
in such manner, if any, and at such time as our directors may in their
discretion reasonably determine to be equitable to the holders of Subscription
Receipts in such circumstances.
Rescission
The Subscription Receipt Agreement will also provide that any
misrepresentation in this Prospectus, the Prospectus Supplement under which the
Subscription Receipts are offered, or any amendment thereto, will entitle each
initial purchaser of Subscription Receipts to a contractual right of rescission
following the issuance of the Common Stock or Warrants or Preferred Stock, as
applicable, to such purchaser entitling such purchaser to receive the amount
paid for the Subscription Receipts upon surrender of the Common Stock or
Warrants or Preferred Stock, as applicable, provided that such remedy for
rescission is exercised in the time stipulated in the Subscription Receipt
Agreement. This right of rescission does not extend to holders of Subscription
Receipts who acquire such Subscription Receipts from an initial purchaser, on
the open market or otherwise, or to initial purchasers who acquire Subscription
Receipts in the United States.
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Global Securities
We may issue Subscription Receipts in whole or in part in the
form of one or more global securities, which will be registered in the name of
and be deposited with a depositary, or its nominee, each of which will be
identified in the applicable Prospectus Supplement. The global securities may be
in temporary or permanent form. The applicable Prospectus Supplement will
describe the terms of any depositary arrangement and the rights and limitations
of owners of beneficial interests in any global security. The applicable
Prospectus Supplement also will describe the exchange, registration and transfer
rights relating to any global security.
Modifications
The Subscription Receipt Agreement will provide for
modifications and alterations to the Subscription Receipts issued thereunder by
way of a resolution of holders of Subscription Receipts at a meeting of such
holders or a consent in writing from such holders. The number of holders of
Subscriptions Receipts required to pass such a resolution or execute such a
written consent will be specified in the Subscription Receipt Agreement.
DESCRIPTION OF PREFERRED STOCK
We are authorized to issue 20,000,000 shares of
Preferred Stock with a par value of $0.00001. As at October 4, 2018, there
were no shares of Preferred Stock issued and outstanding.
The Preferred Stock issuable in series will have the rights,
privileges, restrictions and conditions assigned to the particular series upon
the board of directors of the Company approving their issuance, subject to the
Companys articles of continuance. The terms of any Preferred Stock offered
under this Prospectus and any related agreements will be described in the
Prospectus Supplement filed in respect of the issuance of such Preferred
Stock.
DESCRIPTION OF DEBT SECURITIES
From time to time, debt securities may be offered and sold
under this Prospectus. The terms of any debt securities and any related
agreements or indentures will be described in a Prospectus Supplement to be
filed in respect of such offering
We will provide particular terms and provisions of a series of
Debt Securities, and a description of how the general terms and provisions
described below may apply to that series, in a Prospectus Supplement. The
following summary may not contain all of the information that is important to
the investor. For a more complete description, prospective investors should
refer to the applicable Prospectus Supplement and to the applicable indenture
(the Indenture), a copy of which will be distributed in connection with any
distribution of Debt Securities under this Prospectus and filed by us with the
securities regulatory authorities in Canada and the United States after we have
entered into it. The Indenture will be subject to and governed by the U.S. Trust
Indenture Act of 1939, as amended.
The Indenture may not limit the aggregate principal amount of
Debt Securities which may be issued under it, and we may issue Debt Securities
in one or more series. Securities may be denominated and payable in any
currency. We may offer no more than $100,000,000 (or the equivalent in other
currencies) aggregate principal amount of Debt Securities pursuant to this
Prospectus. Unless otherwise indicated in the applicable Prospectus Supplement,
the Indenture will permit us, without the consent of the holders of any Debt
Securities, to issue additional Debt Securities under the Indenture with the
same terms and with the same CUSIP numbers as the Debt Securities offered in
that series, provided that such additional Debt Securities must be part of the
same issue as the Debt Securities offered in that series for U.S. federal income
tax purposes.
We may also from time to time repurchase Debt Securities in
open market purchases or negotiated transactions without prior notice to
holders.
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The applicable Prospectus Supplement will set forth the
following terms relating to the Debt Securities offered by such Prospectus
Supplement:
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the title of the Debt Securities;
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the total principal amount of the Debt Securities;
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whether the Debt Securities will be issued in individual
certificates to each holder or in the form of temporary or permanent
global Debt Securities held by a depositary on behalf of holders;
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the date or dates on which the principal of and any
premium on the Debt Securities will be payable;
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any interest rate, the date from which interest will
accrue, interest payment dates and record dates for interest payments and
whether and under what circumstances any additional amounts with respect
to the Debt Securities will be payable;
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the place or places where payments on the Debt Securities
will be payable;
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any provisions for optional redemption, early repayment,
retraction, purchase for cancellation or surrender;
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any sinking fund or other provisions that would require
the redemption, purchase or repayment of Debt Securities;
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whether payments on the Debt Securities will be payable
in a foreign currency or currency units or another form;
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the portion of the principal amount of Debt Securities
that will be payable if the maturity is accelerated, other than the entire
principal amount;
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events of default by the Company and covenants of the
Company;
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any restrictions or other provisions relating to the
transfer or exchange of Debt Securities;
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any provisions permitting or restricting the issuance of
additional securities, the incurring of additional indebtedness and other
material negative covenants including restrictions against payment of
dividends and restrictions against giving security on our assets or the
assets of our subsidiaries;
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the rank and terms of subordination of any series of
subordinate debt;
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whether or not the Debt Securities will be secured or
unsecured, and the terms of any secured debt including a general
description of the collateral and of the material terms of any related
security, pledge or other agreements;
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any terms for the conversion or exchange of the Debt
Securities for other securities of the Company or any other entity, or for
the redemption on maturity through the issuance of Common Stock or any
other securities of the Company; and
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any other terms of the Debt Securities not prohibited by
the Indenture.
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Unless otherwise indicated in the applicable Prospectus
Supplement, the holders of the Debt Securities will not be afforded protection
under the Indenture in the event of a highly leveraged transaction or a change
in control of the Company, except in certain specified circumstances.
We may issue Debt Securities under the Indenture bearing no
interest or interest at a rate below the prevailing market rate at the time of
issuance and, in such circumstances, we will offer and sell those Securities at
a discount below their stated principal amount. We will describe in the
applicable Prospectus Supplement any material Canadian and U.S. federal income
tax consequences and other special considerations.
Neither we nor any of our subsidiaries will be subject to any
financial covenants under the Indenture. In addition, neither we nor any of our
subsidiaries will be restricted under the Indenture from paying dividends,
incurring debt, or issuing or repurchasing its securities.
As further described in any Prospectus Supplement, any Debt
Securities issued by us may be secured or unsecured obligations of the Company
and may be senior or subordinate debt. As of the date of this Prospectus, we and
our subsidiaries had a total indebtedness of $2,132,000, consisting of a term
loan facility and a secured loan, and we also have outstanding convertible notes
in the aggregate principle amount of $1,600,000 and convertible debentures in
the aggregate principal amount of CDN$7,581,000.
We may issue Debt Securities and incur additional indebtedness
otherwise than through the offering of any Debt Securities pursuant to this
Prospectus.
Ranking and Other Indebtedness
Unless otherwise indicated in an applicable prospectus
supplement, our debt securities will be unsecured obligations and will rank
equally with all of our other unsecured and unsubordinated debt from time to
time outstanding and equally with other securities issued under the indenture.
The debt securities will be structurally subordinated to all existing and future
liabilities, including trade payables, of our subsidiaries.
23
Our board of directors may establish the extent and manner, if
any, to which payment on or in respect of a series of debt securities will be
senior or will be subordinated to the prior payment of our other liabilities and
obligations and whether the payment of principal, premium, if any, and interest,
if any, will be guaranteed by any other person and the nature and priority of
any security.
Debt Securities in Global Form
The Depositary and Book-Entry
Unless otherwise specified in the applicable prospectus
supplement, a series of the debt securities may be issued in whole or in part in
global form as a global security and will be registered in the name of and be
deposited with a depositary, or its nominee, each of which will be identified in
the applicable prospectus supplement relating to that series. Unless and until
exchanged, in whole or in part, for the debt securities in definitive registered
form, a global security may not be transferred except as a whole by the
depositary for such global security to a nominee of the depositary, by a nominee
of the depositary to the depositary or another nominee of the depositary or by
the depositary or any such nominee to a successor of the depositary or a nominee
of the successor.
The specific terms of the depositary arrangement with respect
to any portion of a particular series of the debt securities to be represented
by a global security will be described in the applicable prospectus supplement
relating to such series. We anticipate that the provisions described in this
section will apply to all depositary arrangements.
Upon the issuance of a global security, the depositary therefor
or its nominee will credit, on its book entry and registration system, the
respective principal amounts of the debt securities represented by the global
security to the accounts of such persons, designated as participants, having
accounts with such depositary or its nominee. Such accounts shall be designated
by the underwriters, dealers or agents participating in the distribution of the
debt securities or by us if such debt securities are offered and sold directly
by us. Ownership of beneficial interests in a global security will be limited to
participants or persons that may hold beneficial interests through participants.
Ownership of beneficial interests in a global security will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
the depositary therefor or its nominee (with respect to interests of
participants) or by participants or persons that hold through participants (with
respect to interests of persons other than participants). The laws of some
states in the United States may require that certain purchasers of securities
take physical delivery of such securities in definitive form.
So long as the depositary for a global security or its nominee
is the registered owner of the global security, such depositary or such nominee,
as the case may be, will be considered the sole owner or holder of the debt
securities represented by the global security for all purposes under the
indenture. Except as provided below, owners of beneficial interests in a global
security will not be entitled to have a series of the debt securities
represented by the global security registered in their names, will not receive
or be entitled to receive physical delivery of such series of the debt
securities in definitive form and will not be considered the owners or holders
thereof under the indenture.
Any payments of principal, premium, if any, and interest, if
any, on global securities registered in the name of a depositary or its nominee
will be made to the depositary or its nominee, as the case may be, as the
registered owner of the global security representing such debt securities. None
of us, the trustee or any paying agent for the debt securities represented by
the global securities will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interests of the global security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
We expect that the depositary for a global security or its
nominee, upon receipt of any payment of principal, premium, if any, or interest,
if any, will credit participants accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of the global security as shown on the records of such depositary or its
nominee. We also expect that payments by participants to owners of beneficial
interests in a global security held through such participants will be governed
by standing instructions and customary practices, as is now the case with
securities held for the accounts of customers registered in street name, and
will be the responsibility of such participants.
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Discontinuance of Depositarys Services
If a depositary for a global security representing a particular
series of the debt securities is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by us within 90 days, we
will issue such series of the debt securities in definitive form in exchange for
a global security representing such series of the debt securities. If an event
of default under the indenture has occurred and is continuing, debt securities
in definitive form will be printed and delivered upon written request by the
holder to the trustee. In addition, we may at any time and in our sole
discretion determine not to have a series of the debt securities represented by
a global security and, in such event, will issue a series of the debt securities
in definitive form in exchange for all of the global securities representing
that series of debt securities.
Debt Securities in Definitive Form
A series of the debt securities may be issued in definitive
form, solely as registered securities, solely as unregistered securities or as
both registered securities and unregistered securities. Registered securities
will be issuable in denominations of US$1,000 and integral multiples of US$1,000
and unregistered securities will be issuable in denominations of US$5,000 and
integral multiples of US$5,000 or, in each case, in such other denominations as
may be set out in the terms of the debt securities of any particular series.
Unless otherwise indicated in the applicable prospectus supplement, unregistered
securities will have interest coupons attached.
Unless otherwise indicated in the applicable prospectus
supplement, payment of principal, premium, if any, and interest, if any, on the
debt securities (other than global securities) will be made at the office or
agency of the trustee, or at our option we can pay principal, interest, if any,
and premium, if any, by check mailed or delivered to the address of the person
entitled at the address appearing in the security register of the trustee or
electronic funds wire or other transmission to an account of the person entitled
to receive payments. Unless otherwise indicated in the applicable prospectus
supplement, payment of interest, if any, will be made to the persons in whose
name the debt securities are registered at the close of business on the day or
days specified by us.
At the option of the holder of debt securities, registered
securities of any series will be exchangeable for other registered securities of
the same series, of any authorized denomination and of a like aggregate
principal amount and tenor. If, but only if, provided in an applicable
prospectus supplement, unregistered securities (with all unmatured coupons,
except as provided below, and all matured coupons in default) of any series may
be exchanged for registered securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor. In such event,
unregistered securities surrendered in a permitted exchange for registered
securities between a regular record date or a special record date and the
relevant date for payment of interest shall be surrendered without the coupon
relating to such date for payment of interest, and interest will not be payable
on such date for payment of interest in respect of the registered security
issued in exchange for such unregistered security, but will be payable only to
the holder of such coupon when due in accordance with the terms of the
indenture. Unless otherwise specified in an applicable prospectus supplement,
unregistered securities will not be issued in exchange for registered
securities.
The applicable prospectus supplement may indicate the places to
register a transfer of the debt securities in definitive form. Except for
certain restrictions set forth in the indenture, no service charge will be
payable by the holder for any registration of transfer or exchange of the debt
securities in definitive form, but we may, in certain instances, require a sum
sufficient to cover any tax or other governmental charges payable in connection
with these transactions.
We shall not be required to:
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issue, register the transfer of or exchange any series of
the debt securities in definitive form during a period beginning at the
opening of business 15 days before any selection of securities of that
series of the debt securities to be redeemed and ending on the relevant
redemption date if the debt securities for which such issuance,
registration or exchange is requested may be among those selected for
redemption;
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register the transfer of or exchange any registered
security in definitive form, or portion thereof, called for redemption,
except the unredeemed portion of any registered security being redeemed in
part;
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exchange any unregistered security called for redemption
except to the extent that such unregistered security may be exchanged for
a registered security of that series and like tenor; provided that such
registered security will be simultaneously surrendered
for redemption with written instructions for payment consistent with the
provisions of the indenture; or
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issue, register the transfer of or exchange any of the
debt securities in definitive form which have been surrendered for
repayment at the option of the holder, except the portion, if any, thereof
not to be so repaid
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25
Merger, Conversion or Consolidation
The indenture will provide that we may not consolidate or merge
with or into any other person, enter into any statutory arrangement with any
person or convey, transfer or lease our properties and assets substantially as
an entirety to another person, unless among other items:
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we are the surviving person, or the resulting, surviving
or transferee person, if other than us, is organized and existing under
the laws of the United States, any state thereof or the District of
Columbia, Canada, or any province or territory thereof, or, if the
amalgamation, merger, consolidation, statutory arrangement or other
transaction would not impair the rights of holders, any other country;
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the successor person (if not us) assumes all of our
obligations under the debt securities and the indenture;
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and
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we or such successor person will not be in default under
the indenture immediately after the transaction.
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When such a person assumes our obligations in such
circumstances, subject to certain exceptions, we shall be discharged from all
obligations under the debt securities and the indenture.
Provision of Financial Information
We will file with the trustee, within 20 days after we file or
furnish them with the SEC, copies of our annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which we are required to file
or furnish with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
Events of Default
Unless otherwise specified in the applicable prospectus
supplement relating to a particular series of debt securities, the following is
a summary of events which will, with respect to any series of the debt
securities, constitute an event of default under the indenture with respect to
the debt securities of that series:
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we fail to pay principal of, or any premium on, any debt
security of that series when it is due and payable;
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we fail to pay interest or any additional amounts payable
on any debt security of that series when it becomes due and payable, and
such default continues for 30 days;
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we fail to make any required sinking fund or analogous
payment for that series of debt securities;
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we fail to observe or perform any of the covenants
described in the section Merger, Conversion or Consolidation for a
period of 30 days;
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we fail to comply with any of our other agreements in the
indenture that affect or are applicable to the debt securities for 60 days
after written notice by the trustee or to us and the trustee by holders of
at least 25% in aggregate principal amount of the outstanding debt
securities of any series affected thereby;
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a default (as defined in any indenture or instrument
under which we or one of our subsidiaries has at the time of the indenture
relating to this prospectus or will thereafter have outstanding any
indebtedness) has occurred and is continuing, or we or any of our
subsidiaries has failed to pay principal amounts with respect to such
indebtedness at maturity and such event of default or failure to pay has
resulted in such indebtedness under such indentures or instruments being
declared due, payable or otherwise being accelerated, in either event so
that an amount in excess of the greater of US$5,000,000 and 2% of our
shareholders equity will be or become due, payable and accelerated upon
such declaration or prior to the date on which the same would otherwise
have become due, payable and accelerated (the Accelerated Indebtedness)
and such acceleration will not be rescinded or annulled, or such event of
default or failure to pay under such indenture or instrument will not be
remedied or cured, whether by payment or otherwise, or waived by the
holders of such Accelerated Indebtedness, then (i) if the Accelerated
Indebtedness will be as a result of an event of default which is not
related to the failure to pay principal or interest on the terms, at
the times, and on the conditions set out in any such
indenture or instrument, it will not be considered an event of default for
the purposes of the indenture governing the debt securities relating to
this prospectus until 30 days after such indebtedness has been
accelerated, or (ii) if the Accelerated Indebtedness will occur as a
result of such failure to pay principal or interest or as a result of an
event of default which is related to the failure to pay principal or
interest on the terms, at the times, and on the conditions set out in any
such indenture or instrument, then (A) if such Accelerated Indebtedness
is, by its terms, non-recourse to us or our subsidiaries, it will be
considered an event of default for purposes of the indenture governing the
debt securities relating to this prospectus; or (B) if such Accelerated
Indebtedness is recourse to us or our subsidiaries, any requirement in
connection with such failure to pay or event of default for the giving of
notice or the lapse of time or the happening of any further condition,
event or act under such indenture or instrument in connection with such
failure to pay or event of default will be applicable together with an
additional seven days before being considered an event of default for the
purposes of the indenture relating to this prospectus;
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certain events involving our bankruptcy, insolvency or
reorganization; and
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any other event of default provided for in that series of
debt securities.
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A default under one series of debt securities will not
necessarily be a default under another series. The trustee may withhold notice
to the holders of the debt securities of any default, except in the payment of
principal or premium, if any, or interest, if any, if in good faith it considers
it in the interests of the holders to do so.
If an event of default for any series of debt securities occurs
and continues, the trustee or the holders of at least 25% in aggregate principal
amount of the debt securities of that series, subject to any subordination
provisions, may require us to repay immediately:
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the entire principal and interest and premium, if any, of
the debt securities of the series; or
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if the debt securities are discounted securities, that
portion of the principal as is described in the applicable prospectus
supplement.
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If an event of default relates to events involving our
bankruptcy, insolvency or reorganization, the principal of all debt securities
will become immediately due and payable without any action by the trustee or any
holder. Subject to certain conditions, the holders of a majority of the
aggregate principal amount of the debt securities of the affected series can
rescind this accelerated payment requirement. If debt securities are discounted
securities, the applicable prospectus supplement will contain provisions
relating to the acceleration of maturity of a portion of the principal amount of
the discounted securities upon the occurrence or continuance of an event of
default.
Other than its duties in case of a default, the trustee is not
obligated to exercise any of the rights or powers that it will have under the
indenture at the request, order or direction of any holders, unless the holders
offer the trustee reasonable indemnity. If they provide this reasonable
indemnity, the holders of a majority in aggregate principal amount of any series
of debt securities may, subject to certain limitations, direct the time, method
and place of conducting any proceeding or any remedy available to the trustee,
or exercising any power conferred upon the trustee, for any series of debt
securities.
We will be required to furnish to the trustee a statement
annually as to our compliance with all conditions and covenants under the
indenture and, if we are not in compliance, we must specify any defaults. We
will also be required to notify the trustee as soon as practicable upon becoming
aware of any event of default.
No holder of a debt security of any series will have any right
to institute any proceeding with respect to the indenture, or for the
appointment of a receiver or a trustee, or for any other remedy, unless:
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the holder has previously given to the trustee written
notice of a continuing event of default with respect to the debt
securities of the affected series;
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the holders of at least 25% in principal amount of the
outstanding debt securities of the series affected by an event of default
have made a written request, and the holders have offered reasonable
indemnity, to the trustee to institute a proceeding as trustee; and
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the trustee has failed to institute a
proceeding, and has not received from the holders of a majority in
aggregate principal amount of the outstanding debt securities of the
series affected by an event of default a direction inconsistent with the
request, within 60 days after their notice, request and offer of
indemnity.
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However, such above-mentioned limitations do not apply to a
suit instituted by the holder of a debt security for the enforcement of payment
of the principal of or any premium, if any, or interest on such debt security on
or after the applicable due date specified in such debt security.
Defeasance
When we use the term defeasance, we mean discharge from some
or all of our obligations under the indenture. Unless otherwise specified in the
applicable prospectus supplement, if we deposit with the trustee sufficient cash
or government securities to pay the principal, interest, if any, premium, if
any, and any other sums due to the stated maturity date or a redemption date of
the debt securities of a series, then at our option:
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we will be discharged from the obligations with respect
to the debt securities of that series; or
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we will no longer be under any obligation to comply with
certain restrictive covenants under the indenture, and certain events of
default will no longer apply to us.
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if this happens, the holders of the debt securities of
the affected series will not be entitled to the benefits of the indenture
except for registration of transfer and exchange of debt securities and
the replacement of lost, stolen or mutilated debt securities. These
holders may look only to the deposited fund for payment on their debt
securities.
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to exercise our defeasance option, we must deliver to the
trustee:
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an opinion of counsel in the United States to the effect
that the holders of the outstanding debt securities of the affected series
will not recognize a gain or loss for U.S. federal income tax purposes as
a result of a defeasance and will be subject to U.S. federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if the defeasance had not occurred;
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an opinion of counsel in Canada or a ruling from the
Canada Revenue Agency to the effect that the holders of the outstanding
debt securities of the affected series will not recognize income, or a
gain or loss for Canadian federal, provincial or territorial income or
other tax purposes as a result of a defeasance and will be subject to
Canadian federal, provincial or territorial income tax and other tax on
the same amounts, in the same manner and at the same times as would have
been the case had the defeasance not occurred; and
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a certificate of one of our officers and an opinion of
counsel, each stating that all conditions precedent provided for relating
to defeasance have been complied with.
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If we are to be discharged from our obligations with respect to
the debt securities, and not just from our covenants, the U.S. opinion must be
based upon a ruling from or published by the United States Internal Revenue
Service or a change in law to that effect.
In addition to the delivery of the opinions described above,
the following conditions must be met before we may exercise our defeasance
option:
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no event of default or event that, with the passing of
time or the giving of notice, or both, shall constitute an event of
default shall have occurred and be continuing for the debt securities of
the affected series;
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we are not an insolvent person within the meaning of
applicable bankruptcy and insolvency legislation;
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and
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other customary conditions precedent are satisfied.
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Modification and Waiver
Modifications and amendments of the indenture may be made by us
and the trustee with the consent of the holders of a majority in aggregate
principal amount of the outstanding debt securities of each series affected by
the modification. However, without the consent of each holder affected, no
modification may:
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change the stated maturity of the principal of, premium,
if any, or any installment of interest, if any, on any debt security;
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reduce the principal, premium, if any, or rate of
interest, if any, or any obligation to pay any additional amounts;
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reduce the amount of principal of a debt security payable
upon acceleration of its maturity;
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change the place or currency of any payment;
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affect the holders right to require us to repurchase the
debt securities at the holders option;
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impair the right of the holders to institute a suit to
enforce their rights to payment;
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adversely affect any conversion or exchange right related
to a series of debt securities;
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change the percentage of debt securities required to
modify the indenture or to waive compliance with certain provisions of the
indenture; or
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reduce the percentage in principal amount of outstanding
debt securities necessary to take certain actions.
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The holders of a majority in principal amount of outstanding
debt securities of any series may on behalf of the holders of all debt
securities of that series waive, insofar as only that series is concerned, past
defaults under the indenture and compliance by us with certain restrictive
provisions of the indenture. However, these holders may not waive a default in
any payment on any debt security or compliance with a provision that cannot be
modified without the consent of each holder affected.
We may modify the indenture without the consent of the holders
to:
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evidence our successor under the indenture;
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add covenants or surrender any right or power for the
benefit of holders;
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add events of default;
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provide for unregistered securities to become registered
securities under the indenture and make other such changes to unregistered
securities that in each case do not materially and adversely affect the
interests of holders of outstanding securities;
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establish the forms of the debt securities;
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appoint a successor trustee under the indenture;
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add provisions to permit or facilitate the defeasance or
discharge of the debt securities as long as there is no material adverse
effect on the holders;
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cure any ambiguity, correct or supplement any defective
or inconsistent provision, make any other provisions in each case that
would not materially and adversely affect the interests of holders of
outstanding securities and related coupons, if any;
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comply with any applicable laws of the United States and
Canada in order to effect and maintain the qualification of the indenture
under the Trust Indenture Act; or
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change or eliminate any provisions where such change
takes effect when there are no securities outstanding under the indenture.
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Governing Law
The indenture and the debt securities will be governed by and
construed in accordance with the laws of the State of New York.
The Trustee
The trustee under the indenture or its affiliates may provide
banking and other services to us in the ordinary course of their business.
The indenture will contain certain limitations on the rights of
the trustee, as long as it or any of its affiliates remains our creditor, to
obtain payment of claims in certain cases or to realize on certain property
received on any claim as security or otherwise. The trustee and its affiliates
will be permitted to engage in other transactions with us. If the trustee or any
affiliate acquires any conflicting interest and a default occurs with respect to
the debt securities, the trustee must eliminate the conflict or resign.
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Resignation of Trustee
The trustee may resign or be removed with respect to one or
more series of the debt securities and a successor trustee may be appointed to
act with respect to such series. In the event that two or more persons are
acting as trustee with respect to different series of debt securities, each such
trustee shall be a trustee of a trust under the indenture separate and apart
from the trust administered by any other such trustee, and any action described
herein to be taken by the trustee may then be taken by each such trustee with
respect to, and only with respect to, the one or more series of debt securities
for which it is trustee.
Consent to Service
In connection with the indenture, we will designate and appoint
CT Corporation System, 111 Eighth Avenue, New York, New York, 10011, as our
authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to the indenture or the debt securities that may be
instituted in any U.S. federal or New York state court located in the Borough of
Manhattan, in the City of New York, or brought by the trustee (whether in its
individual capacity or in its capacity as trustee under the indenture), and will
irrevocably submit to the non-exclusive jurisdiction of such courts.
Enforceability of Judgments
Since all or substantially all of our assets, as well as the
assets of some of our directors and officers, are outside the United States, any
judgment obtained in the United States against us or certain of our directors or
officers, including judgments with respect to the payment of principal on the
debt securities, may not be collectible within the United States.
We have been advised that there is doubt as to the
enforceability in Canada by a court in original actions, or in actions to
enforce judgments of U.S. courts, of civil liabilities predicated solely upon
the U.S. federal securities laws.
DESCRIPTION OF UNITS
The following description, together with the additional
information we may include in any applicable Prospectus Supplements, summarizes
the material terms and provisions of the Units that we may offer under this
Prospectus. While the terms we have summarized below will apply generally to any
Units that we may offer under this Prospectus, we will describe the particular
terms of any series of Units in more detail in the applicable Prospectus
Supplement. The terms of any Units offered under a Prospectus Supplement may
differ from the terms described below.
We will file as exhibits to the registration statement of which
this Prospectus is a part, or will incorporate by reference from a current
report on Form 8-K that we file with the SEC, the form of unit agreement (which
we refer to herein as the Unit Agreement), if any, between us and a unit agent
(which we refer to herein as the Unit Agent) that describes the terms and
conditions of the series of Units we are offering, and any supplemental
agreements, before the issuance of the related series of Units. The following
summaries of material terms and provisions of the Units are subject to, and
qualified in their entirety by reference to, all the provisions of the Unit
Agreement, if any, and any supplemental agreements applicable to a particular
series of Units. We urge you to read the applicable Prospectus Supplements
related to the particular series of Units that we sell under this Prospectus, as
well as the complete Unit Agreement, if any, and any supplemental agreements
that contain the terms of the Units.
General
We may issue Units comprising one or more shares of Common
Stock, Warrants, Rights, shares of Preferred Stock, Subscription Receipts or
Debt Securities, in any combination. Each Unit will be issued so that the holder
of the Unit is also the holder of each security included in the Unit. Thus, the
holder of a Unit will have the rights and obligations of a holder of each
included security. Units may be issued under a Unit Agreement. Any Unit
Agreement under which a Unit may be issued may provide that the securities
included in the Unit may not be held or transferred separately, at any time or
at any time before a specified date.
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We will describe in the applicable Prospectus Supplement
the terms of the series of Units, including:
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the designation and terms of the Units and of the
securities comprising the Units, including whether and under what
circumstances those securities may be held or transferred separately;
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the provisions of any governing Unit Agreement;
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material United States and Canadian federal income tax
consequences of acquiring, owning, exercising, and disposing of the Units;
and
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any provisions for the issuance, payment, settlement,
transfer or exchange of the Units or of the securities comprising the
Units.
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The provisions described in this section, as well as those
described under Description of Common Stock, Description of Warrants,
Description of Rights, Description of Subscription Receipts, Description of
Preferred Stock and Description of Debt Securities, will apply to each Unit
and to any share of Common Stock, Warrant Right, share of Preferred Stock,
Subscription Receipt or Debt Security included in each Unit, respectively.
Issuance in Series
We may issue Units in such amounts and in numerous distinct
series as we determine.
PLAN OF DISTRIBUTION
General
We may offer and sell the Securities, separately or together:
(a) to one or more underwriters or dealers; (b) through one or more agents; or
(c) directly to one or more other purchasers. The Securities offered pursuant to
any Prospectus Supplement may be sold from time to time in one or more
transactions at: (i) a fixed price or prices, which may be changed from time to
time; (ii) market prices prevailing at the time of sale; (iii) prices related to
such prevailing market prices; or (iv) other negotiated prices, including sales
in transactions that are deemed to be at-the-market distributions, including
sales made directly on the TSX-V, OTCQX or other existing trading markets for
the securities. We may only offer and sell the Securities pursuant to a
Prospectus Supplement during the period that this Prospectus, including any
amendments hereto, remains effective. The Prospectus Supplement for any of the
Securities being offered thereby will set forth the terms of the offering of
such Securities, including the type of Security(ies) being offered, the name or
names of any underwriters, dealers or agents, the purchase price of such
Securities, the proceeds or consideration to us from such sale, any underwriting
commissions or discounts and other items constituting underwriters compensation
and any discounts or concessions allowed or re-allowed or paid to dealers. Only
underwriters so named in the Prospectus Supplement are deemed to be underwriters
in connection with the Securities offered thereby.
By Underwriters
If underwriters are used in the sale, the Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
Unless otherwise set forth in the Prospectus Supplement relating thereto, the
obligations of underwriters to purchase the Securities will be subject to
certain conditions, but the underwriters will be obligated to purchase all of
the Securities offered by the Prospectus Supplement if any of such Securities
are purchased. We may offer the Securities to the public through underwriting
syndicates represented by managing underwriters or by underwriters without a
syndicate. We may agree to pay the underwriters a fee or commission for various
services relating to the offering of any Securities. Any such fee or commission
will be paid out of our general corporate funds. We may use underwriters with
whom we have a material relationship. We will describe in the Prospectus
Supplement, naming the underwriter, the nature of any such relationship.
By Dealers
If dealers are used, and if so specified in the applicable
Prospectus Supplement, we will sell such Securities to the dealers as
principals. The dealers may then resell such Securities to the public at varying
prices to be determined by such dealers at the time of resale. Any public
offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time. We will
set forth the names of the dealers and the terms of the transaction in the
applicable Prospectus Supplement.
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By Agents
The Securities may also be sold through agents designated by
us. Any agent involved will be named, and any fees or commissions payable by us
to such agent will be set forth, in the applicable Prospectus Supplement. Any
such fees or commissions will be paid out of our general corporate funds. Unless
otherwise indicated in the Prospectus Supplement, any agent will be acting on a
best efforts basis for the period of its appointment.
Direct Sales
Securities may also be sold directly by us at such prices and
upon such terms as agreed to by us and the purchaser. In this case, no
underwriters, dealers or agents may be involved in the offering.
General Information
Underwriters, dealers and agents that participate in the
distribution of the Securities offered by this Prospectus may be deemed
underwriters under the Securities Act, and any discounts or commissions they
receive from us and any profit on their resale of the Securities may be treated
as underwriting discounts and commissions under the Securities Act.
Underwriters, dealers or agents who participate in the
distribution of Securities may be entitled under agreements to be entered into
with us to indemnification by us against certain liabilities, including
liabilities under Canadian provincial and territorial and United States
securities legislation, or to contribution with respect to payments which such
underwriters, dealers or agents may be required to make in respect thereof. Such
underwriters, dealers or agents may be customers of, engage in transactions
with, or perform services for, us in the ordinary course of business.
We may enter into derivative transactions with third parties,
or sell securities not covered by this Prospectus to third parties in privately
negotiated transactions. If the applicable Prospectus Supplement indicates, in
connection with those derivatives, the third parties may sell Securities covered
by this Prospectus and the applicable Prospectus Supplement, including in short
sale transactions. If so, the third parties may use securities pledged by us or
borrowed from us or others to settle those sales or to close out any related
open borrowings of stock, and may use securities received from us in settlement
of those derivatives to close out any related open borrowings of stock. The
third parties in such sale transactions will be identified in the applicable
Prospectus Supplement.
One or more firms, referred to as remarketing firms, may also
offer or sell the Securities, if the Prospectus Supplement so indicates, in
connection with a remarketing arrangement upon their purchase. Remarketing firms
will act as principals for their own accounts or as agents for us. These
remarketing firms will offer or sell the Securities in accordance with the terms
of the Securities. The Prospectus Supplement will identify any remarketing firm
and the terms of its agreement, if any, with us and will describe the
remarketing firms compensation. Remarketing firms may be deemed to be
underwriters in connection with the Securities they remarket.
In connection with any offering of Securities, underwriters may
over-allot or effect transactions which stabilize or maintain the market price
of the Securities offered at a level above that which might otherwise prevail in
the open market. Such transactions may be commenced, interrupted or discontinued
at any time.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed
upon by Dorsey & Whitney, LLP.
EXPERTS
IntelGenx Technologies Corp. financial statements for the years
ended December 31, 2017 and 2016 included in this registration statement have
been audited by Richter, LLP, Montreal, Quebec, an independent registered
public accounting firm, as stated in their report, and have been so
included in reliance upon the report of said firm and their authority as experts
in accounting and auditing. This report expresses an unqualified opinion.
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WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file reports and other information with the Securities and
Exchange Commission. We have also filed a registration statement on Form S-3,
including exhibits, with the SEC with respect to the Securities covered by this
Prospectus. This Prospectus is part of the registration statement, but it does
not contain all of the information included in the registration statement or
exhibits. For further information with respect to us and our securities, we
refer you to the registration statement and to the exhibits and schedules to the
registration statement. Statements contained in this Prospectus as to the
contents of any contract or any other document referred to are not necessarily
complete, and in each instance, we refer you to the copy of the contract or
other document filed as an exhibit to the registration statement. Each of these
statements is qualified in all respects by this reference. You may inspect a
copy of the registration statement and other reports we file with the Securities
and Exchange Commission without charge at the SECs principal office in
Washington, D.C., and copies of all or any part of the registration statement
may be obtained from the Public Reference Section of the SEC, 100 F Street NE,
Washington, D.C. 20549, upon payment of fees prescribed by the SEC. The SEC
maintains an internet site that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the SEC. The address of the Web site is http://www.sec.gov. The SECs toll
free investor information service can be reached at 1-800-SEC-0330.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference the information
contained in documents that we file with them. We are incorporating by reference
into this Prospectus the documents listed below (excluding any information
furnished under Items 2.02 or 7.01 in any Current Report on Form 8-K):
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Our Annual Report on Form 10-K for the fiscal year ended
December 31, 2017 that we filed with the SEC on March 29, 2018;
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Our Quarterly Report on Form 10-Q for the quarter ended
March 31, 2018 that we filed with the SEC on May 10, 2018;
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Our Quarterly Report on Form 10-Q for the quarter ended
June 30, 2018 that we filed with the SEC on August 9, 2018;
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Our Proxy Statement on Schedule 14A that we filed with
the SEC on March 29, 2018 (the Proxy Statement);
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Our Current Reports on Form 8-K filed with the SEC on January 26, 2018 and
May 10, 2018; and
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The description of the Registrants shares of common
stock set forth in the registration statement on Form 10SB12G, and any
amendments thereto, registering the registrants common stock under
Section 12 of the Securities Exchange Act of 1934, which was filed with
the Securities and Exchange Commission on July 28, 2000, including any
amendments or reports filed for the purpose of updating such description.
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By incorporating by reference our Annual Report on Form 10-K,
and our Proxy Statement, we can disclose important information to you by
referring you to our Annual Report on Form 10-K, and our Proxy Statement, which
are considered part of this Prospectus.
Any statement contained in a document incorporated or deemed to
be incorporated by reference into this Prospectus will be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained in this Prospectus or any other subsequently filed document that is
deemed to be incorporated by reference into this Prospectus modifies or
supersedes the statement. Any statement so modified or superseded will not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
All documents that we file with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
after the effective date of the initial registration statement of which this
Prospectus is a part and all such documents that we file with the SEC after the
date of this Prospectus and before the termination of the offering of our
Securities shall be deemed incorporated by reference into this Prospectus and to
be a part of this Prospectus from the respective dates of filing such documents.
Unless specifically stated to the contrary, none of the information that we
disclose under Items 2.02 or 7.01 of any Current Report on Form 8-K that we may
from time to time furnish to the SEC will be incorporated by reference into, or
otherwise included in, this Prospectus.
Any statement contained in a document incorporated by reference
in this Prospectus shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained in this Prospectus or
in any other subsequently filed document that also is or is deemed to
be incorporated by reference in this Prospectus modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
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Copies of the documents incorporated by reference in this
Prospectus may be obtained on written or oral request without charge from our
Corporate Secretary at 6420 Abrams, Ville Saint Laurent, Quebec H4S 1Y2, Canada
(telephone: (514) 331-7440).
We also maintain a web site at http://www.intelgenx.com through
which you can obtain copies of documents that we have filed with the SEC. The
contents of that site are not incorporated by reference into or otherwise a part
of this Prospectus.
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IntelGenx Technologies Corp.
Up to Units
Each Unit Consisting of One Share of Common Stock
and
One Half of One Warrant to Purchase One Share of Common Stock
H.C. Wainwright & Co.
October , 2018
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