Full Press Release Details
UNDERWRITING AGREEMENT
Oncolytics Biotech Inc.
210-1167 Kensington Cr. N.W.
Bolder Investment Partners, Ltd. (the Underwriter ) hereby offers to purchase from Oncolytics
Biotech Inc. (the Company ) up to 2,500,000 units of the Company (the Units ) at a price of $1.50
per Unit (the Offering Price ) for gross proceeds to the Company of up to $3,750,000. Each Unit
shall consist of one common share (a Unit Share ) and one common share purchase warrant (a Unit
Warrant ) of the Company. Each Unit Warrant shall be exercisable into one common share of the
Company (a Unit Warrant Share ) for a period of 36 months from the Closing Date (as defined in
Section 4 below) at an exercise price of $1.80 per share, provided that, if, on any date (the
Accelerated Exercise Date ) the 10-day volume-weighted average trading price of the common shares
of the Company (the Common Shares ) on the Toronto Stock Exchange exceeds $2.50 per share, then,
at the Company s sole discretion and upon the Company sending the holders of the Unit Warrants
written notice of such Accelerated Exercise Date and issuing a news release announcing such
Accelerated Exercise Date, the Unit Warrants shall only be exercisable for a period of 30 days
following the later of the date on which such written notice is sent to holders of Unit Warrants
and the date on which such announcement is made by news release.
The number of Units which the Underwriter shall be obligated to purchase and the Company
obligated to sell at the Closing Time (as hereinafter defined), subject to the terms and conditions
herein, shall be that number of Units (to a maximum of 2,500,000 (exclusive of Units purchasable
pursuant to the Over-Allotment Option (as hereinafter defined)) specified in a written notice
provided by the Underwriter to the Company prior to 3:00 p.m. (Calgary time) on the Business Day
(meaning a day which is not a Saturday, a Sunday or a statutory or civic holiday in the City of
Calgary) prior to the Closing Date.
In addition, the Company hereby grants to the Underwriter an over-allotment option (the
Over-Allotment Option ), to purchase and offer for sale to the public pursuant to the terms and
conditions contained herein up to an aggregate of 375,000 additional Units (the Over-Allotment
Units ), which Over-Allotment Option shall be exercisable in whole or in part by the Underwriter at
the Offering Price by providing written notice to the Company of the exercise thereof by 3:00 p.m.
(Calgary time) on the Business Day prior to the Closing Date
The Units, together with the Over-Allotment Units, are collectively referred to herein as the
Offered Units . The Units which the Underwriter is obligated to purchase hereunder as specified
in the notice referred to above, together with any Over-Allotment Units, are
collectively referred to herein as the Purchased Units . Reference herein to the Unit
Shares, the Unit Warrants and the Unit Warrant Shares shall include reference to those Unit Shares,
Unit Warrants and Unit Warrant Shares issuable upon exercise of the Over-Allotment Option, assuming
exercise thereof, unless the context otherwise requires. The Unit Shares, the Unit Warrants, the
Unit Warrant Shares, the Broker Warrants and the Broker Warrant Shares are collectively referred to
herein as the Offered Securities . The offering of the Offered Securities is referred to herein
The Company filed, on June 16, 2008, with the securities regulatory authorities (the Canadian
Securities Commissions ) in each of the provinces of British Columbia, Alberta, Manitoba and
Ontario (the Qualifying Provinces ) a short form base shelf prospectus (including the documents
incorporated by reference therein, in the English Language, the Canadian Shelf Prospectus ) in
accordance with the procedures set out in National Instrument 44-102 qualifying the distribution
of, inter alia, Common Shares and warrants to purchase Common Shares and was issued, on June 16,
2008, a receipt therefor by the Alberta Securities Commission (the Reviewing Authority ) and the
Ontario Securities Commission. Receipts therefor were deemed to have been issued by the securities
regulatory authority in each of the provinces of British Columbia and Manitoba pursuant to
Multilateral Instrument 11-102.
The Company filed, on June 6, 2008, with the United States Securities and Exchange Commission
(the SEC ), in accordance with the provisions of the United States Securities Act of 1933, as
amended, and the rules and regulations thereunder (collectively, the 1933 Act ), a registration
statement (including documents incorporated by reference therein, as it has been amended on June
17, 2008 and may be further amended from time to time, the Shelf Registration Statement ) on Form
F-10, which includes a base shelf prospectus in substantially the form as the Canadian Shelf
Prospectus, covering the sale of, inter alia, Common Shares and warrants to purchase Common Shares
under the 1933 Act (the U.S. Shelf Prospectus ), along with an appointment for agent for service
of process upon the Company on Form F-X in conjunction with the filing of the Registration
Statement (the Form F-X ).
The obligation of the Underwriter to purchase any Offered Units shall, in addition to being
subject to the other terms and conditions described herein, be conditional on the following steps
having been taken within the time frames described below:
| (b) | The Company shall file with the SEC, in form and substance satisfactory to the Underwriter, acting reasonably, and in accordance with the provisions of the 1933 Act, pursuant to General Instruction II.L of Form F-10, a supplement in substantially the form as the Canadian Prospectus Supplement (with such additions and deletions as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC) to the U.S. Shelf Prospectus contained in the Shelf Registration Statement (including documents incorporated by reference therein) registering the offer and sale of the Offered Securities under the 1933 Act (the U.S. Supplement ), as soon as possible after the filing of the Canadian Prospectus Supplement in Canada (the U.S. Shelf Prospectus, together with the U.S. Supplement, and including the documents incorporated by reference therein, in the English language, as it may be amended from time to time, the U.S. Supplemented Prospectus ); and | ||
| (c) | The Company acknowledges and agrees that under no circumstances whatsoever shall the Underwriter be required to execute a certificate page or any other document in respect of the U.S. Supplement, the U.S. Shelf Prospectus or the Shelf Registration Statement or that may be required to be filed with the SEC or any securities regulatory authority other than the Canadian Securities Commissions. | ||
| (d) | The Company shall file with the Reviewing Authority as soon as possible a prospectus supplement (the Canadian Warrant Prospectus Supplement ) to the Canadian Shelf Prospectus, in form and substance satisfactory to the Underwriter, acting reasonably, in accordance with the procedures set out in National Instrument 44-102 relating to the Unit Warrant Shares no later than on the Business Day prior to the Closing Date. Reference to the Canadian Warrant Prospectus herein shall mean the Canadian Shelf Prospectus together with the Canadian Warrant Prospectus Supplement as filed with the Reviewing Authority, including the documents incorporated by reference therein. The Company acknowledges and agrees that under no circumstances whatsoever shall the Underwriter be required to execute a certificate page in respect of the Canadian Warrant Prospectus Supplement or the Canadian Warrant Prospectus. | ||
| (e) | The Company shall file with the SEC as soon as possible, and in any event no later than four (4) Business Days following the date of this Agreement, pursuant to General Instruction II.L of Form F-10, a prospectus supplement to the Shelf Registration Statement (the U.S. Warrant Supplement ), in form and substance satisfactory to the Underwriter, acting reasonably, providing for the registration of the Unit Warrant Shares under the 1933 Act, including the Canadian Warrant Prospectus Supplement (with such deletions therefrom and additions thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the SEC). The U.S. Shelf Prospectus together with the U.S. Warrant Supplement, including all documents incorporated by reference, relating to the offering of the Unit Warrant Shares filed with the Commission is referred to herein as the U.S. Warrant Prospectus. The Company shall use its reasonable efforts to maintain the effectiveness of the U.S. Shelf Registration Statement or |
For greater certainty, the parties agree that if the Company fails to meet the deadlines
specified above for any reason whatsoever, the Underwriter shall be entitled to exercise the
termination rights provided for in Section 9 hereof.
The Company shall pay to the Underwriter a fee (the Underwriter s Fee ) at the Closing Time
equal to 8% of the aggregate gross proceeds of the Offering in consideration of the services to be
rendered by the Underwriter in connection with the Offering. Such services shall include, without
limitation: (i) acting as financial advisor to the Company in the preparation of documentation
relating to the sale of the Offered Units; (ii) forming and managing banking, selling and other
groups for the sale of the Offered Units; (iii) distributing the Offered Units to the public both
directly and through other registered dealers and brokers; (iv) assisting the Company in connection
with the preparation and finalization of the Canadian Prospectus Supplement; (v) performing
administrative work in connection with these matters; and (vi) all other services arising out of
the agreement resulting from the Company s acceptance of this offer. In the event that Canada
Revenue Agency determines that GST is exigible on the Underwriter s Fee, the Company agrees to pay
the amount of GST forthwith upon the request of the Underwriter. In addition, the Underwriter
shall be issued, at the Closing Time, warrants, in form and substance acceptable to the
Underwriter, acting reasonably, entitling the Underwriter to purchase that number of Common Shares
equal to 10% of the number of Common Shares purchased on such date by the Underwriter as part of
the Purchased Units (the Broker Warrants ). Each Broker Warrant shall be exercisable into one
Common Share (a Broker Warrant Shares ) for a period of 36 months from the Closing Date at an
exercise price of $1.80 per share, provided that, if the expiry date of the Unit Warrants shall
have been accelerated as described above upon the occurrence of an Accelerated Exercise Date, then
the expiry date of the Broker Warrants shall likewise be accelerated provided notice thereof shall
have been given to the Underwriter at the time notice thereof is given to the holders of the Unit
In the event that the Company shall subdivide, consolidate, reclassify or otherwise exchange
the Common Shares during the period in which the Over-Allotment Option and/or Unit Warrants and/or
Broker Warrants are exercisable, the Company hereby agrees to make appropriate adjustments to the
applicable exercise price of the Over-Allotment Option and/or Unit Warrants (pursuant to the terms
of the Warrant Indenture (as hereinafter defined)) and/or Broker Warrants, as the case may be, and
to the number of Units and/or Unit Warrant Shares and/or Broker Warrant Shares, as the case may be,
issuable upon the exercise thereof, as applicable, such that the Underwriter shall be entitled to
receive the same number and type of securities that it would have otherwise received had it
exercised the Over-Allotment Option and/or Unit Warrants and/or Broker Warrants, as the case may
be, prior to such occurrence. Reasonable notice shall be given to the Underwriter of such
adjustment(s). In the event that the Underwriter shall disagree with the foregoing adjustment(s),
the Company s auditors, absent manifest error, at the Company s expense, shall determine such
adjustment(s) conclusively.