APPROVAL, IN ACCORDANCE WITH NASDAQ LISTING RULE 5635(D), OF THE ISSUANCE OF COMMON SHARES PURSUANT TO THE PURCHASE AGREEMENT BETWEEN THE COMPANY AND HELENA DATED OCTOBER 29, 2024, AS AMENDED ON AUGUST 4, 2025
We are seeking shareholder approval, for the purpose of complying with Nasdaq Listing Rule 5635(d), for the issuance of Common Shares pursuant to the purchase agreement between the Company and Helena dated October 29, 2024, as amended on August 4, 2025 (the “ELOC Agreement”).
On October 29, 2024, we entered into the ELOC Agreement, pursuant to which we have the right to issue and to sell to Helena, from time to time, as provided in the ELOC Agreement, up to $40,000,000 (the “Original Commitment Amount”) of Company’s Common Shares, subject to the conditions set forth therein. The ELOC Agreement provides that we cannot sell shares to Helena in excess of 19.99% of our outstanding Common Shares as of November 6, 2024 unless we receive shareholder approval to do so in with Nasdaq Listing Rule 5635(d). Previously, on June 23, 2025, our Shareholders approved, for purposes of complying with Nasdaq Listing Rule 5635(d), the issuance of 20% or more of the Company’s issued and outstanding Common Shares to Helena pursuant to the ELOC Agreement, up to the Original Commitment Amount. Subsequently, however, on August 4, 2025, the Company and Helena entered into a Second Amendment to the ELOC Agreement (the “ELOC Amendment”) to increase the commitment amount from $40,000,000 to $300,000,000 (the “Increased Commitment Amount”). As such, the Company is now seeking shareholder approval to issue 20% or more of the Company’s issued and outstanding Common Shares on November 6, 2024, up to and including the Increased Commitment Amount.
Pursuant to the ELOC Agreement, the Company may require that Helena purchase Common Shares from the Company by delivering one or more advance notices to Helena setting forth, in each advance notice, the amount of the advance it is requesting, which amount many not exceed an amount equal to lesser of (i) one hundred percent (100%) of the average of the daily value traded of the Common Shares over the ten (10) trading days immediately preceding such advance notice, and (ii) eight million United States Dollars ($8,000,000). Additionally, in no event can we sell to Helena Common Shares to the extent such issuance to Helena would cause Helena to become, directly or indirectly, a beneficial owner of a number of Common Shares which exceeds 9.99% of the outstanding Common Shares.
Promptly after receipt of an advance notice (and, in any event, not later than one (1) trading day after such receipt), the Company is required to issue to Helena all the Common Shares purchased Helena pursuant to such advance. The purchase price for the Common Shares so purchased by Helena pursuant to an advance notice is the lowest intraday sale price for the Common Shares during the three (3) trading days commencing on the date of Helena’s receipt of the Common Shares relating to such advance.
Because the per share purchase price that Helena will pay for Common Shares in connection with any advance notice we have elected to deliver to Helena pursuant to the ELOC Agreement will be determined by reference to the lowest intraday sale price for the Common Shares during the three (3) trading days commencing on the date of Helena’s receipt of the Common Shares relating to such advance, we cannot determine the actual purchase price per share that Helena will be required to pay for any Common Shares that we may elect to sell to Helena under the ELOC Agreement and, therefore, we cannot be certain how many Common Shares, in the aggregate, we may issue and sell to Helena under the ELOC Agreement.
We control the timing and amount of any sales of Common Shares to Helena that we may elect, in our sole discretion, to effect from time to time from and after the commencement date of the ELOC Agreement and during the term of the ELOC Agreement. Actual sales of Common Shares to Helena under the ELOC Agreement will depend on a variety of factors to be determined by us from time to time, including, among other things, market conditions, the trading price of the Common Share and determinations by us as to the appropriate sources of funding for our business and operations.
The right of the Company to deliver an advance notice and the obligations of Helena hereunder with respect to an advance notice are conditioned on the following terms:
1.
| the accuracy of the Company’s representations and warranties in the ELOC Agreement; |
2.
| there is an effective Registration Statement pursuant to which Helena is permitted to utilize the prospectus thereunder to resell the Common Shares purchased by Helena; |
