BriaCell Therapeutics Corp F-1/A, filed Dec 23, 2020
BriaCell Therapeutics Corp. (BCTX)
As filed with the Securities and Exchange Commission on December 22, 2020
Registration No. 333-234292
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 12 to
FORM F-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BRIACELL THERAPEUTICS CORP.
(Exact name of Registrant as specified in its charter)
| British Columbia | 2834 | 47-1099599 | ||
| (State or other jurisdiction of | (Primary Standard Industrial | (I.R.S. Employer | ||
| incorporation or organization) | Classification Code Number) | Identification Number) |
Suite 300 – 235 15th Street
West Vancouver, BC V7T 2X1
Telephone: (604) 921-1810
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Paracorp Incorporated
2804 Gateway Oaks Drive #100,
Sacramento, CA 95833
Telephone: (888) 280-6563
(Name, address, including zip code, and telephone number, including area code, of agent of service)
Copies to:
Gregory Sichenzia, Esq. Avital Perlman, Esq. Sichenzia Ross Ference LLP 1185 Avenue of Americas 37th Floor New York, NY 10036 Telephone: (212) 930-9700 Facsimile: (212) 930-9725 |
Aaron Sonshine Bennett Jones LLP 3400 One First Canadian Place P.O. Box 130, Toronto, ON M5X 1A4 Telephone: (416) 777-6448 Facsimile: (416) 863-1716 |
Virgil Z. Hlus Clark Wilson LLP Suite 900-885 West Georgia Street Vancouver, BC,V6C 3H1 Telephone: (604) 687-5700 Facsimile: (604) 687-6314 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933. Emerging growth company [X]
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act. [ ]
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
BriaCell Therapeutics Corp. is filing this Amendment No. 12 (this “Amendment”) to its Registration Statement on Form F-1 (Registration Statement No. 333-234293) (the “Registration Statement”) to re-file Exhibits 5.1 and 5.2 Accordingly, this Amendment consists only of the facing page, this explanatory note, Part II, Exhibit 5.1, Exhibit 5.2 and the signature page. The remainder of the Registration Statement is unchanged and therefore has not been included in this Amendment.
INFORMATION NOT REQUIRED IN PROSPECTUS
Indemnification of Directors, Officers, Employees and Agents
Under the BCBCA, a company may indemnify: (i) a current or former director or officer of that company; (ii) a current or former director or officer of another corporation if, at the time such individual held such office, the corporation was an affiliate of the company, or if such individual held such office at the company’s request; or (iii) an individual who, at the request of the company, held, or holds, an equivalent position in another entity (an “indemnifiable person”) against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him or her in respect of any civil, criminal, administrative or other legal proceeding or investigative action (whether current, threatened, pending or completed) in which he or she is involved because of that person’s position as an indemnifiable person, unless: (i) the individual did not act honestly and in good faith with a view to the best interests of such company or the other entity, as the case may be; or (ii) in the case of a proceeding other than a civil proceeding, the individual did not have reasonable grounds for believing that the individual’s conduct was lawful. A company cannot indemnify an indemnifiable person if it is prohibited from doing so under its articles or by applicable law. A company may pay, as they are incurred in advance of the final disposition of an eligible proceeding, the expenses actually and reasonably incurred by an indemnifiable person in respect of that proceeding only if the indemnifiable person has provided an undertaking that, if it is ultimately determined that the payment of expenses was prohibited, the indemnifiable person will repay any amounts advanced. Subject to the aforementioned prohibitions on indemnification, a company must, after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by an indemnifiable person in respect of such eligible proceeding if such indemnifiable person has not been reimbursed for such expenses, and was wholly successful, on the merits or otherwise, in the outcome of such eligible proceeding or was substantially successful on the merits in the outcome of such eligible proceeding. On application from an indemnifiable person, a court may make any order the court considers appropriate in respect of an eligible proceeding, including the indemnification of penalties imposed or expenses incurred in any such proceedings and the enforcement of an indemnification agreement. As permitted by the BCBCA, our articles require us to indemnify our directors and former directors (and such individual’s respective heirs and legal representatives) and permit us to indemnify any person to the extent permitted by the BCBCA.
Recent Sales of Unregistered Securities
In the prior three years, we have issued and sold the securities described below without registering the securities under the Securities Act. None of these transactions involved any underwriters’ underwriting discounts or commissions, or any public offering. We believe that each of the following issuances was exempt from registration under the Securities Act in reliance on Regulation S promulgated under the Securities Act regarding sales by an issuer in offshore transactions, Regulation D under the Securities Act, Rule 701 under the Securities Act or pursuant to Section 4(a)(2) of the Securities Act regarding transactions not involving a public offering.
On September 9, 2019 the Company completed non brokered private placement of 40,300 common shares at a price of $21 per common share for gross proceeds of $846,300.
On October 15, 2019, the Company completed non brokered private placement of 27,069 common shares at a price of $21 per common share for gross proceeds of $568,444.
On March 25, 2019 and April 1, 2019, the Company completed a non-brokered private placement on of 99,117 shares of the Company at a price of $30 per share for aggregate gross proceeds of $2,973,524 (net proceeds: $2,845,784). Included in the Private Placement were $500,000 from Jamieson Bondarenko, an insider of the Company
On February 26, 2019, BriaCell announced a non-brokered private placement financing of 16,667 common shares of the Company to Mr. Bondarenko at a price of $30 per common share for gross proceeds of $500,000. Upon closing of the Offering, Mr. Bondarenko had a beneficial ownership of an aggregate of 76,902 common shares, representing approximately 13.7% of the Company’s issued and outstanding common shares.
On March 27, 2018, the Company completed a non-brokered private placement (the “Non-Brokered Unit Offering”) of 144,408 units of the Company (the “Units”) at a price of $30 per Unit for aggregate gross proceeds of $4,332,232. Under the Non-Brokered Unit Offering, each Unit consists of one common share (each, a “March Common Share”) and one common share purchase warrant (each, a “March Warrant”). The March Warrants are valid for 36 months following the closing of the Non-Brokered Unit Offering and each March Warrant is exercisable for one March Common Share at an exercise price of $42.
Concurrent with the Non-Brokered Unit Offering, the Company also completed a brokered private placement for the purchase of 5.0% unsecured convertible notes (each, a “March Note”) in the principal amount of US$885,000 (the “March Note Offering”). Under the terms of securities purchase agreements dated March 8, 2018 between the Company and the purchasers of March Notes, each March Note is convertible at the option of the holder into (i) common shares of BriaCell for so long as the March Note is outstanding, at a fixed conversion price of $30 per March Common Share, for a period of nine months from the date of issuance, which may be extended by the applicable holder for up to six additional months at the holder’s sole option, and (ii) for each March Common Share resulting from the conversion, one March Warrant. The March Warrants are valid for 36 months from their issuance date and each March Warrant is exercisable for one March Common Share at an exercise price of $42.
| II-1 |
In connection with the Non-Brokered Unit Offering and the Note Offering (together, the “March Offerings”), the Company paid commissions to certain participating dealers on a portion of funds raised. In respect of the March Note Offering, an aggregate cash commissions of $235,215 and an aggregate 8,711 broker warrants (the “Broker Warrants”) were paid. The compensation warrants issued in connection with the March Offerings are exercisable for one March Common Share at an exercise price of $42 for a period of 36 months from the issue date.
Officers and members of the Company’s board of directors, including BriaCell’s Chief Executive Officer, Chief Financial Officer and the board’s Chairman, participated in the NonBrokered Unit Offering.
During July 2018, certain noteholders converted $106,843 of the Notes into 3,561 shares and 3,561 warrants and during August 2018, an additional $117,437 of Notes were converted and as such, the Company issued 3,915 shares and 3,915 warrants. On September 17, 2018, the Company and the Noteholders agreement to extend the repayment date of the Convertible notes for an additional six month, to March 2019.
On March 9, 2017, the Company and the Company’s President and CEO, completed a non-brokered private placement financing of 18,707 units for aggregate gross proceeds to the Company in the amount of $1,346,900. Under the offering, each Unit consisted of one common share in the capital of the Company and one-half of one Common Share purchase warrant.
On August 2, 2017, the Company and the Company’s President and CEO completed a non-brokered private placement resulting in gross proceeds of $631,785. The non-brokered private placement involved the sale of 13,528 units at a price of $48.00 per unit. Each unit consisted of one common share in the capital of the Company.
On July 24, 2017, the Company entered into a definitive share exchange agreement between BriaCell Therapeutics Corp., or BTC, the Company’s US subsidiary, Sapientia Pharmaceuticals, or Sapientia, and all the shareholders of Sapientia. Pursuant to the terms of the share exchange agreement, BTC acquired from the Sapientia shareholders all of the issued and outstanding shares in the capital of Sapientia. As consideration, the Sapientia shareholders received an aggregate of 8,333 common shares in the capital of BriaCell on a pro-rata basis, which were issued on September 5, 2017. As part of the transaction, the Company acquired all rights, including composition of matter patents, and preclinical study data to a novel therapeutic technology platform, known as protein kinase C delta (PKCδ) inhibitors, which represents a unique, highly-targeted approach to treat cancer and to boost the immune system.
Exhibits and Financial Statement Schedules
(a) Exhibits:
The following exhibits are filed as part of this registration statement:
| II-2 |
| * | Previously filed. |
| II-3 |
Undertakings
The undersigned Registrant hereby undertakes to:
(a) file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to:
(i) include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or together, represent a fundamental change in the information in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in the registration statement.
(b) that, for the purpose of determining any liability under the Securities Act, each post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) to file a post-effective amendment to remove from registration any of the securities that remain unsold at the end of the offering.
(d) that insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant, the Registrant has been advised that in the opinion of the SEC, such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registration of expenses incurred or paid by a director, officer or controlling person to the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
| II-4 |
(e) that, for the purpose of determining liability under the Securities Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(f) that, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) any preliminary prospectus or prospectus of the Registrant relating to the offering filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering prepared by or on behalf of the Registrant or used or referred to by the Registrant;
(iii) the portion of any other free writing prospectus relating to the offering containing material information about the Registrant or its securities provided by or on behalf of the Registrant; and
(iv) any other communication that is an offer in the offering made by the Registrant to the purchaser.
The undersigned Registrant hereby undertakes that:
1. For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as of the time it was declared effective.
2. For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
| II-5 |
Signatures
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-1 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in West Vancouver, British Columbia on December 22, 2020.
| BRIACELL THERAPEUTICS CORP. | ||
| (Registrant) | ||
| By: | /s/ William V. Williams | |
| Dr. William V. Williams | ||
| Chief Executive Officer, President and Director | ||
| (Principal Executive Officer) | ||
| By: | /s/ Gadi Levin | |
| Gadi Levin | ||
| Chief Financial Officer | ||
| (Principal Financial and Accounting Officer) | ||
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated:
| SIGNATURE | TITLE | DATE | ||
| /s/ William V. Williams | Chief Executive Officer, | December 22, 2020 | ||
| Dr. William V. Williams | President and Director | |||
| /s/ Gadi Levin | Chief Financial Officer (Principal | December 22, 2020 | ||
| Gadi Levin | Financial and Accounting Officer) | |||
| /s/ Jamieson Bondarenko | Chairman of the Board of Directors | December 22, 2020 | ||
| Jamieson Bondarenko | ||||
| /s/ Vaughn C. Embro-Pantalony | Director | December 22, 2020 | ||
| Vaughn C. Embro-Pantalony | ||||
| /s/ Rebecca Taub | Director | December 22, 2020 | ||
| Rebecca Taub | ||||
| /s/ Charles Wiseman | Director | December 22, 2020 | ||
| Charles Wiseman | ||||
| /s/ Martin Schmieg | Director | December 22, 2020 | ||
| Martin Schmieg |
SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant to the requirements of the Securities Act of 1933, the undersigned, the duly authorized representative in the United States of BriaCell Therapeutics Corp., has signed this registration statement on December 22, 2020.
| Authorized U.S. Representative | ||
| /s/ William V. Williams | ||
| Name: | Dr. William V. Williams | |
| Title: | Chief Executive Officer | |
| II-6 |
Exhibit 5.1
December 22, 2020
BriaCell Therapeutics Corp.
Suite 300 – 235 15th Street
West Vancouver, British Columbia
Canada V7T 2X1
Dear Mesdames/Sirs:
Re: BriaCell Therapeutics Corp. - Registration Statement on Form F-1
We have acted as special Canadian legal counsel to BriaCell Therapeutics Corp., a British Columbia corporation (the “Company”), in connection with the Company’s registration statement Form F-1 (Registration No. 333-234292), as amended and filed (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) including two (2) related prospectuses filed with the Registration Statement (each, a Prospectus, and collectively the “Prospectuses”), with one Prospectus covering the registration and proposed offering of an aggregate of up to US$16,915,858.88 of common units (each, a “Common Unit”) and/or pre-funded units (each, a “Pre-funded Unit”), including common shares and/or Pre-funded Warrants (as defined below), representing up to 15% of the Common Unit Shares (as defined below) and Pre-funded Warrants (as defined below) sold in the offering and additional Warrants (as defined below) representing up to 15% of the Warrants sold in the offering (the “IPO Prospectus”), solely to cover over-allotments, if any (collectively, together with the Common Units and the Pre-funded Units, the “Offered Securities”); and the second Prospectus covering the potential resale by a selling shareholder named therein (the “Selling Shareholder Prospectus”) of 50,000 common shares of the Company (the “Selling Shareholder Shares”).
Each Common Unit will consist of one common share of the Company without par value (each, a “Common Unit Share”), and one common share purchase warrant (each, a “Warrant”) entitling the holder thereof to purchase one common share of the Company (each, a “Warrant Share”) for a period of five years from the date of issuance of the Common Unit Warrant at an exercise price equal to 125% of the final public offering price of the Common Units.
Each Pre-funded Unit will consist of one pre-funded warrant (each, a “Pre-funded Unit Warrant”) and one Warrant. Each Pre-funded Unit Warrant will entitle the holder thereof to purchase one common share of the Company (a “Pre-funded Unit Warrant Share”) at an exercise price of US$0.01 per Pre-funded Unit Warrant Share at any time.
We understand that the Offered Securities, and the underlying shares and warrants, are to be sold by the Company to the underwriters for resale to the public as described in the Registration Statement and IPO Prospectus and pursuant to an underwriting agreement be entered into by and among the Company and the underwriters substantially in the form to be filed as an exhibit to the Registration Statement (together with all schedules, exhibits and ancillary documents and agreements thereto, the “Underwriting Agreement”). The Offered Securities, and the underlying shares and warrants, are being registered by the Company in connection with an underwritten public offering of the Company (the “Offering”). The offering prices of the Common Units and Pre-funded Units are to be determined by the Company and the underwriters.
Pursuant to the Underwriting Agreement the Company agrees to issue to the underwriters, as partial compensation for their services, certain common share purchase warrants (each, an “Underwriter Warrant”). Each Underwriter Warrant will entitle the holder to purchase one common share of the Company (each, an “Underwriter Warrant Share”) commencing six months after the effective date of the Registration Statement (the “Effective Date”) at a price per Underwriter Warrant Share equal to 125% of the final public offering price of the Common Units sold in the Offering and expiring four and one-half years following the date of issue.
In connection with this opinion, we have reviewed and relied upon originals, photocopies or copies, certified or otherwise identified to our satisfaction, of the Registration Statement and Prospectuses, the Company’s Notice of Articles, the Company’s Articles, records of the Company’s corporate proceedings in connection with the Offering, and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this opinion. With respect to the foregoing documents, we have assumed, without independent investigation: (i) the authenticity of all records, documents, and instruments submitted to us as originals; (ii) the genuineness of all signatures on all agreements, instruments and other documents submitted to us; (iii) the legal capacity and authority of all persons or entities (other than the Company) executing all agreements, instruments or other documents submitted to us; (iv) the authenticity and the conformity to the originals of all records, documents, and instruments submitted to us as copies; (v) that the statements contained in the certificates and comparable documents of public officials, officers and representatives of the Company and other persons on which we have relied for purposes of this opinion are true and correct; (vi) the due authorization, execution and delivery of all agreements, instruments and other documents by all parties thereto (other than the due authorization, execution and delivery of each such agreement, instrument and document by the Company); and (vii) that the Registration Statement has been declared effective pursuant to the Securities Act of 1933, as amended (the “Securities Act”). We have also obtained from officers of the Company certificates as to certain factual matters and, insofar as this opinion is based on matters of fact, we have relied on such certificates without independent investigation. With respect to the Underwriting Agreement and the Warrants, the Pre-funded Unit Warrants and the Underwriting Warrants, all of which are governed by and construed in accordance with the laws of the State of New York, we have assumed that these agreements comply with and do not violate the laws of the State of New York.
Our opinion is limited to laws of the Province of British Columbia. We have not considered, and have not expressed any opinion with regard to, or as to the effect of, any other law, rule, or regulation, state or federal, applicable to the Company. In particular, we express no opinion as to United States federal securities laws.
Based upon the foregoing and in reliance thereon, and subject to the qualifications and limitations set forth herein, we are of the opinion that:
| 1. | Upon payment to the Company of the consideration per Common Unit and Pre-Funded Unit, as applicable, in such amount and form as shall be determined by the board of directors of the Company (the “Board”) or the persons authorized by the Board, the issuance and sale of the Offered Securities and the Underwriter Warrants in the manner and under the terms described in the Registration Statement have been duly authorized by all necessary corporate action by the Company and the Common Unit Shares will be validly issued, fully paid and non-assessable shares in the capital of the Company; |
| 2. | The Warrant Shares, the Pre-funded Unit Warrant Shares and Underwriter Warrant Shares have been duly authorized by all necessary corporate action and, when issued and delivery by the Company in receipt for the exercise price therefor in the manner contemplated in the Registration Statement and the Warrants, Pre-funded Warrants and Underwriter Warrants, will be validly issued, fully paid and non-assessable shares in the capital of the Company; and |
| 3. | The Resale Shares have been duly authorized by all necessary corporate action and are validly issued, fully paid and non-assessable shares in the capital of the Company. |
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our firm’s name in the section of the Registration Statement and the Prospectus included therein entitled “Legal Matters”. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the SEC.
This opinion is furnished in accordance with the requirements of Item 8.a. of Form F-1 and Item 601(b)(5)(i) of Regulation S-K in connection with the filing of the Registration Statement and the related Prospectus, and is not to be used, circulated, quoted or otherwise relied upon for any other purpose. This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. We disclaim any obligation to advise you of facts, circumstances, events or developments that hereafter may be brought to our attention and that may alter, affect or modify the opinion expressed herein after the effective date of the Registration Statement.
| Yours truly, | |
| /s/ Bennett Jones |
Exhibit 5.2
December 22, 2020
BriaCell Therapeutics Corp.
Suite 300 – 235 15th Street
West Vancouver, British Columbia
Canada V7T 2X1
Ladies and Gentlemen:
This opinion is furnished to you in connection with a Registration Statement on Form F-1 (Registration No. 333-234292) (as amended to date, the “Registration Statement”) filed by BriaCell Therapeutics Corp., a British Columbia company (the “Company”), with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to (1) the registration in connection with a proposed public offering (including in connection with an over-allotment option granted to the underwriters) of up to $39,308,423.66 of (A) units (the “Units”), with each unit consisting of (I) one common share and (II) one warrant to purchase one common share (the “Warrants”), (B) pre-funded units (the “Pre-funded Units”) consisting of (I) one pre-funded warrant to purchase one common share (the “Pre-funded Warrant”) and (II) one Warrant and (C) Warrants to purchase a number of common shares equal to 5% of the aggregate number of common shares and Pre-funded Warrants (including the over-allotment option) issuable to the underwriters and (2) the resale of 50,000 common shares (the “Resale Shares” and, together with the Units, the Pre-funded Units, the Warrants, the Pre-funded Warrants and the common shares underlying the Units, Pre-funded Units, Warrants, and Pre-Funded Warrants, the “Securities”) held by the selling stockholder named therein. The Company has engaged ThinkEquity, a division of Fordham Financial Management, Inc., to act as the representative of the underwriters in connection with the proposed public offering of the Company.
We are acting as U.S. securities counsel for the Company in connection with the Registration Statement. In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates and statements of public officials, certificates of officers or representatives of the Company, and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinion set forth herein. In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of all originals of such latter documents. In making our examination of the documents executed by the parties, we have assumed that such parties had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof. In addition, we have assumed that when issued and paid for pursuant to the Warrants, the Pre-Funded Warrants and, the common shares underlying the Units, Pre-funded Units, Warrants, and Pre-Funded Warrants will be validly issued, fully paid and non-assessable. Except as expressly set forth herein, we have not undertaken any independent investigation to determine the existence or absence of facts material to the opinions expressed herein and no inference as to our knowledge concerning such facts should be drawn from the fact that such representation has been relied upon by us in connection with the preparation and delivery of this opinion. As to any facts material to the opinions expressed herein which were not independently established or verified, we have relied upon oral or written statements and representations of officers and other representatives of the Company and others, including those set forth in the Form of Underwriting Agreement, copy of which has been filed as Exhibit 1.1 to the Registration Statement (the “Underwriting Agreement”) .
We are admitted to the Bar in the State of New York. We express no opinion as to the laws of any jurisdiction other than the laws of the State of New York.
You are separately receiving an opinion from Bennett Jones LLP with respect to the corporate proceedings relating to the issuance of the Securities.
Based upon the foregoing and subject to the assumptions and qualifications set forth herein, we are of the opinion that the Units, the Pre-Funded Units, the Warrants and the Pre-Funded Warrants, when issued and sold by the Company and delivered by the Company in accordance with and in the manner described in the Registration Statement and Underwriting Agreement, when executed and delivered by the Company, will constitute the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, moratorium and similar laws affecting creditors’ rights generally and equitable principles of general applicability and comply with and do not violate the laws of the State of New York.
We express no opinion as to the enforceability of any rights to indemnification or contribution provided for in the Underwriting Agreement that are violative of the public policy underlying any law, rule or regulation.
We consent to the filing of this opinion as an exhibit to the Registration Statement and we further consent to the use of our name under the caption “Legal Matters” in the Registration Statement and the prospectus that forms a part thereof. In giving these consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission. This opinion letter is limited to the matters expressly set forth herein and no opinion is implied or may be inferred beyond the matters expressly so stated. This opinion letter is given as of the date hereof and we do not undertake any liability or responsibility to inform you of any change in circumstances occurring, or additional information becoming available to us, after the date hereof which might alter the opinions contained herein.
| Very truly yours, | |
| /s/ Sichenzia Ross Ference LLP | |
| Sichenzia Ross Ference LLP |