Garden State Securities Inc.
328 Newman Springs Rd.
Red Bank, NJ 07707
May 3, 2017
BIONIK LABORATORIES CORP.
483 Bay Street, N105
Toronto, Ontario M5G 2C9
Attn: Peter Bloch, CEO
Dear Mr. Bloch,
This letter sets forth the agreement (the “Letter Agreement”) by and among Bionik Laboratories Corp. (the “Company” or “Bionik”) and Garden State Securities Inc. (“GSS”) with respect to the engagement of GSS to act as an exclusive selling/placement agent for the Company pursuant to a proposed warrant exercise from existing shareholders.
In connection with its engagement hereunder, this Letter Agreement confirms the Company’s understanding of GSS’s intention to attempt to utilize its best efforts to affect the following:
|1.||Review the business and operation of the Company and its historical and projected financial condition.|
|2.||Advise Company of “best efforts” warrant exercise financing and a potential Private Placement offering of equity/debt securities to fulfill the Company’s business plan and an offering of debt securities to assist in the Company’s acquisition strategy, if applicable.|
|3.||Contact for the Company possible financing sources.|
Notwithstanding the foregoing, the intent herein described shall not obligate GSS to affect any public or private financing for the Company, or obligate the Company to enter into or commence any transaction. Any such obligation shall be conditioned in its entirety upon the execution and delivery by GSS of an Agency or Underwriting Agreement satisfactory to GSS and the Company and satisfactory due diligence performed by GSS.
GSS shall act as the Company’s exclusive placement/selling agent in connection with offering existing warrant holders the opportunity to exercise their warrants for cash, at a lower price over a specific period of time (the “Warrant Exercise”) for to the later of; (i) 60 days from the date of the execution of this Letter Agreement; or (ii) the expiration or termination of the offering period of the Warrant Exercise (the “Exclusive Period”).
The Company agrees to pay to GSS at each full or incremental closing from any Warrant Exercise from any warrant holder during the Exclusive Period; (i) a cash transaction fee in the amount of 10% of gross proceeds received by the Company from the Warrant Exercise; and (ii) three year warrants to purchase shares of common stock (the “Warrants”) equal to 8% of the stock issued from the Warrant Exercise, at the exercise price of the Warrant Exercise. The Warrants will have standard adjustment mechanisms for extraordinary transactions such as recapitalizations and stock splits, but no price-based anti-dilution adjustments. The Warrants may be exercised on a cashless basis in the event the shares underlying the Warrants are not registered and the Warrants shall be issued in the name of GSS and certain affiliates/employees of GSS by delivery by GSS of instructions to the Company providing for the names of designees who are employees and/or affiliates of GSS. The Company shall deliver to GSS and the Company’s transfer agent, legal opinion letters for GSS and for each designee, at the time that the shares underlying the Warrants are eligible to be sold pursuant to SEC Rule 144, upon GSS’s request and at the Company’s cost. However, the Company will also inform its transfer agent that it can rely on an outside legal opinion provided by GSS at the time such underlying shares are eligible to be sold pursuant to SEC Rule 144, if GSS and/or its employees/affiliates, decide to provide an outside legal opinion. All funds shall be deposited in an escrow account at Signature Bank if required by GSS. The company shall bear the cost of the escrow account. The Company will pay, on the date of execution of this Letter Agreement, the expense of GSS’s legal counsel in the amount of $10,000. Additionally, the Company acknowledges and agrees that if it receives any capital from any investors that previously participated in the private placement closed in 2015, whose securities were registered with the SEC and declared effective on August 24, 2015 https://www.sec.gov/Archives/edgar/data/1508381/000114420415053245/v419615_424b3.htm and who were GSS Clients (as defined below), the Company will pay to GSS a cash fee of 10% of any capital received (other than with respect to the Warrant Exercise) within one business day, for a period of 12 months from the date of this Letter Agreement (the “2015 Tail Extension”). The Company shall also cause, at its cost and expense, all “blue sky” filings related to the Warrant Exercise and required by applicable law to be made in due and proper form and substance and in a timely manner as required under the laws of the states in which Securities are sold (“Blue Sky Filings”). In addition, the Company shall cause, at its cost and expense, a Form D related to the Warrant Exercise to be filed with the Securities and Exchange Commission (“SEC”) in due and proper form and substance and in a timely manner. The Company shall deliver true and correct copies of all Blue Sky Filings and the Form D, as filed with the SEC, to GSS within 15 days of the final closing date.
|3.||Access to Premises:|
In connection with the performance of services hereunder, the Company shall make its facilities, management and employees available to GSS and its representatives, during normal working hours, and shall be responsive to any and all reasonable requests for information made by GSS, with reasonable notice and with confidentiality. In performing its services hereunder, GSS shall be entitled to rely upon and assume, without independent verification, the accuracy and completeness of all information that is available from public sources and of all information that has been furnished to it by the Company and shall have no obligation to verify the accuracy or completeness of any such information or to conduct any appraisal of any assets.
|4.||Mergers and Acquisitions:|
For a period of 12 months after the date of this Agreement, in the event that the Company enters into a merger, acquisition, sale transaction or business relationship (the “Transaction”) with a Source(s) (as defined below) introduced to the Company by GSS, GSS shall be entitled to receive a fee in the same form of Consideration on the same terms over the same period (i.e. if GSS’s introduction results in a cash transaction, then GSS will be compensated in cash; if GSS’s introduction results in a stock transaction, then GSS will be compensated in stock) equal to 5% of the total value of the Transaction. For the purposes of this Letter Agreement, “Consideration” means the aggregate value, whether in cash, securities, assumption (or purchase subject to) of debt or liabilities (including without limitation, indebtedness for borrowed money, pension liabilities and guarantees), license fees, royalty fees, joint venture interests or other property, obligations or services, paid or payable by or to the Company directly or indirectly (in escrow or otherwise) or otherwise assumed in connection with a Transaction. The value of such consideration shall be determined as follows:
|1.||The value of securities, liabilities, obligations, property and services shall be the fair market value as reasonably determined by an independent third party to be mutually agreed upon by GSS and the Company.|
|2.||The value of indebtedness assumed, shall be the face amount.|
If Consideration payable in a Transaction includes contingent payments to be calculated by references to uncertain future occurrences, such as future financial or business performance, then any fees of GSS’s relating to such consideration shall be payable at the earlier of (i) the receipt of such Consideration or (ii) the time that the amount of such Consideration can be determined.
In addition to the 2015 Tail Extension as provided above, if the Company were to receive any additional capital, within eighteen (18) months from the date hereof from any investors that exercises their warrants during the Warrant Exercise, that were clients of GSS (“GSS Clients”), the Company will pay to GSS a cash fee of 10% of the amount raised at the closing of any such financing. The Company will not circumvent GSS and will not attempt to deal directly or indirectly through agents or representatives of the Company, with such Source(s) or GSS Clients without prior written consent of an officer of GSS. As used in this Letter Agreement, the term “Source(s)” shall mean any GSS Client in the Warrant Exercise and/or any corporation, company, institution, partnership, individual or other affiliate(s), directly or indirectly contacted by GSS for the purpose of entering into a Transaction, provided GSS identify in writing to the Company such contacted individuals and/or entities. This paragraph shall survive any termination of this Letter Agreement.
Except as provided in Section 2 of this Letter Agreement, the Company hereby agrees to pay all filing fees, charges and expenses incident to the performance by the Company of its obligations hereunder, including, without limitation, all fees, charges, and expenses in connection with: (i) the issuance, sale, transfer, and delivery of the Securities, including any transfer or other taxes payable thereon and the fees of any transfer agent or registrar; (ii) the securing of an exemption therefrom under state or foreign "blue sky" or securities laws, including without limitation, filing fees payable in the jurisdictions in which such registration or qualification or exemption therefrom is sought and disbursements in connection therewith; (iii) filing fees payable to the SEC, if any; and (iv) pre-approved (by the Company and GSS) traveling and lodging expenses in connection with the sale of securities for the Securities Financing.
|7.||Non-Exclusive Right to Participate in Future Financings:|
The Company shall notify GSS of any proposed financings and, if the Company deems it appropriate based on the type, size and scope of such proposed financing, and it does not otherwise jeopardize the Company’s ability to consummate such proposed financing, the Company shall invite GSS to participate in the proposed financing in whole or in part, based on the allocation to other bankers and/or broker-dealers involved therein. This Section 7 shall expire on the 18 month anniversary of the date of this Letter Agreement.
The Company agrees to indemnify GSS and certain other entities and persons as set forth in Schedule I.
|(a)||The Company recognizes and confirms that GSS, in acting pursuant to this engagement, will be using information in reports and other information provided by others, including, without limitation, information provided by or on behalf of the Company, and that GSS does not assume responsibility for and may rely, without independent verification, on the accuracy and the completeness of any such reports and information. The Company hereby warrants that all of its information relating to the Company will not contain any untrue statement of a material fact or omit to state any material fact or omit to state any material fact necessary to make the statements contained herein, in the light of the circumstances under which they were made, not misleading. The Company agrees to provide GSS with (i) prompt notice of any material development affecting the Company; (ii) such other information concerning the business and financial condition of the Company as GSS may from time to time reasonably request provided that such information is maintained by GSS pursuant to a confidentiality agreement. GSS agrees to distribute information regarding the Company, not in the public domain, only with written approval by the Company.|
|(b)||The Company agrees that any information or advise rendered by GSS or its representatives in connection with this engagement is for the confidential use of the Company only and, except as otherwise required by law or for purposes of the Warrant Exercise, the Company has not and will not permit any third party to disclose or otherwise refer to such advice or information in any manner without GSS’s prior written consent, unless such information becomes part of the public domain through no fault of the Company.|
|(c)||GSS agrees that any information, plans or data regarding the Company and its activities are for the confidential use of GSS only for purposes of providing the services described in this Letter Agreement and, except as otherwise required by law or otherwise in the public domain, GSS will not disclose or otherwise permit any third party to disclose or otherwise refer to, without the Company’s prior written consent.|
The Company and GSS will each have the right to terminate this Letter Agreement at any time after the Exclusive Period, provided prior written notice is given 30 days before termination. Any termination of this Letter Agreement shall not affect or limit (i) the rights of GSS or any other indemnified person (as defined in schedule I hereto) to receive indemnification, (ii) rights to receive fees accrued prior to such termination, (iii) the rights of GSS to receive fees and be covenanted to all of the terms and conditions detailed in Section 2, Section 4 and Section 5 of this Letter Agreement on any Warrant Exercise and/or Transaction that was negotiated during the term of this Letter Agreement and/or closes after any termination, and (iv) the rights detailed in Section 5 and Section 7 of this Letter Agreement.
GSS may, at its own expense, place announcements or advertisements in financial newspapers and journals describing its services hereunder, provided that the same shall comply with securities laws and shall be approved by the Company prior to dissemination.
This Letter Agreement (a) shall be governed by and construed in accordance with the laws of the State of New York and the parties agree that any dispute, claim or controversy relating to or arising out of this Agreement or the performance of its terms shall be resolved and conducted in the County and State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof, (b) incorporates the entire understanding of the parties with respect to the subject matter hereof and supersedes all previous agreements should they exist hereto, (c) may not be amended or modified except in writing executed by the Company and GSS and (d) shall be binding upon and inure to the benefit of the Company, GSS, and other indemnified Parties and their respective successors and assigns. In the event of litigation between the parties arising hereunder, the prevailing party shall be entitled to costs and reasonable attorney's fees.
|13.||Compliance with Applicable Law:|
In connection with this engagement, Bionik and GSS will comply with all applicable federal, state and foreign securities laws and other applicable laws and regulations.
GSS at all times during the term hereof will remain an independent contractor, and nothing contained in this Letter Agreement will create the relationship of employer and employee or principal and agent as between Bionik and GSS or any of its employees. Without limiting the generality of the foregoing, all final decisions with respect to matters about which GSS has provided services hereunder shall be solely those of Bionik, and GSS shall not have any liability relating thereto or arising therefrom. GSS shall not have authority to bind or act for Bionik in any respect. It is understood that GSS’ responsibilities to Bionik are solely contractual in nature and that GSS does not owe Bionik, or any other party, any fiduciary duty as a result of its engagement.
|15.||Successors and Assigns:|
This Letter Agreement and all obligations and benefits of the parties hereto shall bind and shall inure to their benefit and that of their respective successors and assigns.
If you are in agreement with the foregoing, please execute the enclosed counterpart of this letter in the space below provided for that purpose and deliver it to the undersigned, whereupon the terms hereof shall become a binding agreement between us.
The investment banking staff of GSS and its affiliates look forward to working with you.
Very truly yours,
|/s/ Ernest Pellegrino|
|Garden State Securities, Inc.|
|AGREED TO AND ACCEPTED|
|THIS 3 DAY OF May, 2017,|
|SUBJECT TO BOARD APPROVAL|
|/s/ Peter Bloch|
|By:||Peter Bloch, Chief Executive Officer|
|Bionik Laboratories Corp.|
Bionik Laboratories Corp. (the “Company”) referred to in the attached Letter Agreement (the “Letter Agreement”) agrees to indemnify and hold harmless Garden State Securities Inc. (“GSS”) and its affiliates, and the respective directors, officers, agents and employees of GSS and its affiliates and each other entity or person, if any, controlling GSS or any of its affiliates within the meaning of Section 15 of the Securities Act of 1933, as amended (GSS and each such entity or person being referred to as an “Indemnified Person”), from and against any losses, claims, damages or liabilities (or actions in respect thereof) relating to or arising out of activities performed pursuant to the Letter Agreement, the transactions contemplated thereby or GSS’s role in connection therewith, or caused by any untrue statements of material nature contained in any document provided to GSS by the Company which documents are relied upon by GSS in connection with its performance of the Letter Agreement, and will reimburse GSS and any other Indemnified Person for all expenses (including, without limitation, reasonable fees and disbursements of counsel) incurred by GSS or any such other Indemnified Person in connection with investigating, preparing or defending any such action or claim, whether or not in connection with pending or threatened litigation to which GSS (or any other Indemnified Person) is a party, in each case, as such expenses are incurred or paid. The Company will not, however, be responsible for any such losses, claims, damages, liabilities or expenses of any Indemnified Person that are determined by final judgment of a court of competent jurisdiction to have primarily resulted from actions taken or omitted to be taken by such Indemnified Person in bad faith, intentional misconduct, or from such indemnified Person’s gross negligence. The Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company for or in connection with the Letter Agreement, any transactions contemplated thereby or GSS’s role in connection therewith, expect for any such liability for losses, claims, damages liabilities or expenses incurred by the Company that are determined by final judgment of a court of competent jurisdiction to have resulted primarily from actions taken or omitted to be taken by such Indemnified Person in bad faith, intentional misconduct, or from such Indemnified Person’s gross negligence.
Upon receipt by an Indemnified Person of actual notice of a claim, action or proceeding against such Indemnified Person in respect of which indemnity may be sought hereunder, such Indemnified Person shall promptly notify the Company after any action is commenced by way of service with a summons or other legal process (giving information as to the nature and basis of the claim) against such Indemnified Person. In any event, failure so to notify the Company shall not relieve the Company from any liability that the Company may have on account of this indemnity or otherwise, except to the extent the Company shall have been materially prejudiced by such failure. The Company will, if requested by an Indemnified Person, assume the defense of any litigation or proceeding in respect of which indemnity may be sought hereunder, including the employment of counsel reasonably satisfactory to GSS and the payment of the fees and expenses of such counsel, in which event, except as provided below, the Company shall not be liable for the fees and expenses of any other counsel retained by any Indemnified Person in connection with such litigation or proceeding. In any such litigation or proceeding the defense of which the Company shall have so assumed, any Indemnified Person shall have the right to participate in such litigation or proceeding and to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Company and such Indemnified Person shall have mutually agreed in writing to the retention of such counsel or (ii) the named parties to any such litigation or proceeding (including any impeded parties) include the Company and such Indemnified Person and representation of both parties by the same counsel would in the opinion of counsel to such Indemnified Person, be inappropriate due to actual or potential differing interests between the Company and such Indemnified Person. The Company shall not be liable for any settlement of any litigation or proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Company agrees to indemnify the Indemnified Person from and against any loss or liability by reason of such settlement or judgment. If the Company assumes the defense of any litigation or proceeding, the Company will not settle such litigation or proceeding without GSS’s written consent, which shall not be unreasonably withheld.
If for any reason the foregoing indemnification is unavailable to an Indemnified Person or insufficient to hold it harmless, the Company shall contribute to the amount paid or payable by the Indemnified Person as a result of such loss, claim, damage or liability in proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Indemnified Person on the other hand. Notwithstanding the foregoing, under no circumstances shall any Indemnified Person’s aggregate contribution to any losses, claims, damages and expenses with respect to which contribution is available hereunder exceed the amount of fees actually received hereunder.
The provisions contained in this Schedule I shall remain operative and in full force and effect regardless of the expiration of any termination of the Letter Agreement.