As Filed with the Securities and Exchange
Commission on October 8, 2019
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ESSA
PHARMA INC.
(Exact name of Registrant as specified in its charter)
British Columbia
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Not Applicable
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(Province or other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification No.)
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Suite 720, 999 West Broadway
Vancouver, British Columbia V5Z 1K5
(778) 331-0962
(Address and telephone number of Registrants’ principal executive offices)
CT Corporation System
111 Eighth Avenue
New York, New York 10011
(212) 894-8940
(Name, address (including zip code) and telephone number (including area code) of agent for service)
Copies to:
Riccardo A. Leofanti, Esq.
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Joseph A. Garcia, Esq.
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Skadden, Arps, Slate, Meagher & Flom LLP
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Blake, Cassels & Graydon LLP
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222 Bay Street
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595 Burrard Street
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Toronto, Ontario M5K 1J5
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Vancouver, British Columbia V7X 1L3
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(416) 777-4700
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(604) 631-3300
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Approximate date of commencement of proposed
sale of the securities to the public:
From time to time on or after the effective date of this Registration Statement.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
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, please 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, please 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 registration statement pursuant to General
Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
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. ¨
CALCULATION
OF REGISTRATION FEE
Title of Each Class of
Securities to be
Registered
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Amount to be
Registered(1)
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Proposed
Maximum Offering
Price per Common
Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common Shares(2)
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2,782,721
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US$
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3.21
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(3)
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US$
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8,932,534.41
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US$
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1,159.44
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Common Shares(4)
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|
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5,789,493
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|
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US$
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3.21
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(3)
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US$
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18,584,272.53
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|
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US$
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2,412.24
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Common Shares(5)
|
|
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11,919,404
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|
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US$
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3.21
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(6)
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US$
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38,261,286.84
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US$
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4,966.32
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Total
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20,491,618
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US$
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65,778,093.78
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US$
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8,538.00
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(1)
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Pursuant to Rule 416(a) under the United States Securities
Act of 1933, as amended (the “Securities Act”), this Registration Statement shall be deemed to cover any additional
number of common shares of the registrant that may be issued from time to time to prevent dilutions as a result of stock splits,
stock dividends or similar transactions.
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(2)
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Comprised of 2,782,721 common shares issued to certain selling shareholders as consideration in connection with the registrant’s
acquisition of Realm Therapeutics plc (“Realm”) completed on July 31, 2019.
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(3)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c), based on the average
of the high and low prices of the registrant’s common shares on the Nasdaq Capital Market on October 4, 2019.
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(4)
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Comprised of 5,789,493 common shares issued to certain selling shareholders in connection with a private placement completed
by the registrant on August 27, 2019.
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(5)
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Comprised of 11,919,404 common shares issuable to certain selling shareholders upon the exercise of pre-funded common share
warrants issued to certain selling shareholders in connection with a private placement completed by the registrant on August 27,
2019.
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(6)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(g)(2) of the Securities
Act based on the offering price of securities of the same class included in the Registration Statement.
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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 or until this Registration Statement shall become effective on such date as the Commission acting pursuant to
said Section 8(a), may determine.
The information in this prospectus is not complete
and may be changed. The selling shareholders may not sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to
buy these securities in any state where the offer or sale is not permitted
Subject to Completion, Dated
October 8, 2019
PROSPECTUS
ESSA PHARMA INC.
20,491,618 Common Shares
This prospectus covers 20,491,618 common shares of ESSA
Pharma Inc. that may be offered for resale by the selling shareholders identified in the “Selling Shareholders”
section in this prospectus.
No securities are being offered or sold by us pursuant
to this prospectus, and we will not receive any of the proceeds from the sale of the shares by the selling shareholders. We
will not receive any cash proceeds from the selling shareholders in connection with the exercise of the 2019 Pre-Funded
Warrants (as defined below) issued pursuant to the August 2019 Offering (as defined below), which will be effected on a
“net” or “cashless” basis.
Our common shares are listed on the TSX Venture Exchange (the
“TSX-V”) under the symbol “EPI” and the Nasdaq Capital Market (the “Nasdaq”) under the symbol
“EPIX.” On October 4, 2019, the closing price of our common shares was C$4.39 on the TSX-V and US$3.23 on the Nasdaq.
The selling shareholders may, from time to time, sell, transfer
or otherwise dispose of any or all of their common shares directly to purchasers or through broker-dealers or agents. The common
shares may be sold in one or more transactions at fixed prices, prevailing market prices at the time of sale, prices related to
the prevailing market prices, varying prices determined at the time of sale or negotiated prices. See “Plan of Distribution”
beginning on page 18 for more information about how the selling shareholders may sell or dispose of their shares. We do not
know when, in what amount, or the method by which the selling shareholders may offer the shares for sale. The selling shareholders
may sell any, all or none of the shares offered by this prospectus.
An investment in our common shares involves a high degree
of risk. Before purchasing any common shares, you should consider carefully the risks described under “Risk Factors”
beginning on page 2.
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.
Any representation to the contrary is a criminal offense.
The date of this prospectus is
, 2019.
TABLE OF CONTENTS
You should rely only on the information contained or incorporated
by reference in this prospectus or to which we have referred you. We and the selling shareholders have not authorized anyone to
provide you with information that is different. This prospectus may only be used where it is legal to sell these securities. The
information contained in this prospectus may only be accurate as of the date of this prospectus and the information contained in
any document incorporated by reference in this prospectus is accurate only as of the date of that document, regardless of the time
of delivery of this prospectus or any sale of the common shares. Our business, financial condition, results of operations and prospects
may have changed since those dates.
References in this prospectus to “ESSA”, “we”,
“us”, and “our” refer to ESSA Pharma Inc. and its subsidiaries, unless otherwise specified.
THE
COMPANY
We are a preclinical stage pharmaceutical company focused on
developing novel and proprietary therapies for the treatment of prostate cancer in patients whose disease is progressing despite
treatment with current therapies.
Further details concerning our business, including information
with respect to our assets, operations and development history, are provided in our Annual Report on Form 20-F and the other documents
incorporated by reference into this prospectus. See “Documents Incorporated by Reference.” You are encouraged to thoroughly
review the documents incorporated by reference into this prospectus as they contain important information concerning our business
and our prospects.
Our registered and records office is located at Suite 2600,
Three Bentall Centre, 595 Burrard Street, Vancouver, British Columbia, Canada V7X 1L3. Our head office is located at Suite 720
- 999 West Broadway, Vancouver, British Columbia, Canada V5Z 1K5.
We have one wholly-owned subsidiary, ESSA Pharmaceuticals Corp.,
existing under the laws of the State of Texas.
We are an “emerging growth company,” as defined
in the Jumpstart Our Business Startups Act of 2012. We will remain an emerging growth company until the earlier of (1) the last
day of the fiscal year following the fifth anniversary of the completion of our initial public offering equity securities, (2)
the last day of the fiscal year in which we have total annual gross revenue of at least $1.07 billion, (3) the last day of the
fiscal year in which we are deemed to be a large accelerated filer, which will occur when the market value of our common shares
held by non-affiliates exceeds $700 million as of the end of the second quarter of any fiscal year, or (4) the date on which we
have issued more than an aggregate of $1.0 billion in non-convertible debt during the prior three-year period.
RECENT
DEVELOPMENTS
On July 15, 2019, ESSA announced that it was expanding its leadership
team by appointing Dr. Alessandra Cesano as Chief Medical Officer.
On July 31, 2019, ESSA closed the acquisition of Realm Therapeutics
plc (“Realm”) under Part 26 of the U.K. Companies Act 2006 pursuant to a court-approved Scheme of Arrangement (the
“Scheme”). Under the terms of the Scheme agreement, ESSA acquired all of the issued and outstanding shares of Realm.
Holders of Realm shares received 0.0576359 Essa shares for each Realm share held (or 1.440897 ESSA shares for each Realm ADS, representing
25 Realm shares) at the Scheme record time. In addition and in accordance with the terms of the Scheme, three Realm directors,
Alex Martin, Marella Thorell, and Sanford Zweifach, were appointed to ESSA’s board of directors. In connection with the appointment
of the three Realm directors, Raymond Anderson resigned from the board of directors and as Chief Technical Officer and Secretary
of the Company as at July 31, 2019. Realm had terminated all of its revenue generating operations prior to its acquisition by ESSA.
The purpose of Realm’s acquisition by ESSA was to access Realm’s cash on hand, and Realm is in the process of being
liquidated since the close of its acquisition. ESSA expects that the addition of Realm’s cash balance to ESSA’s balance
sheet will enable it to conduct the Phase I clinical trial of its product candidate, EPI-7386. ESSA has concluded that Realm did
not possess sufficient continuity of operations to constitute a “business” under Rules 3-05 and 11-01(d) of Regulation
S-X, and therefore disclosure of Realm’s prior financial information is not material to an understanding of ESSA’s
future operations.
On August 27, 2019, we completed a public offering in Canada
and private placement in the United States (the “August 2019 Offering”) of 6,080,596 common shares at a price of US$2.00
per common share and 11,919,404 pre-funded warrants at a price of US$2.00 per warrant (the “2019 Pre-Funded Warrants”),
for aggregate gross proceeds to us of approximately US$36 million. Each 2019 Pre-Funded Warrant entitles the holder thereof to
acquire, subject to adjustment in certain circumstances, one common share until 4:30 p.m. (Toronto time) on the date that is 60
months from August 27, 2019 for a nominal exercise price of US$0.0001. The 2019 Pre-Funded Warrants may only be exercised on a
“net” or “cashless” basis.
RISK
FACTORS
Investing in our common shares involves risks. Before investing
in any common shares offered pursuant to this prospectus, you should carefully consider the risk factors and uncertainties set
forth under the heading “Item 3.D. Risk Factors” in our Annual Report on Form 20-F for the year ended September 30, 2018, which is incorporated in this prospectus by reference, as updated by our subsequent filings under the Securities Exchange
Act of 1934 (the “Exchange Act”) and, if applicable, in any accompanying prospectus supplement subsequently filed relating
to a specific offering or sale.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents incorporated by reference
herein, contain forward-looking statements within the meaning of the U.S. Private Securities Litigation Reform Act of 1995 that
may not be based on historical fact, including, without limitation, statements containing the words “believe”, “may”,
“plan”, “will”, “estimate”, “continue”, “anticipate”, “intend”,
“expect” and similar expressions. Forward-looking statements are necessarily based on estimates and assumptions made
by us in light of our experience and perception of historical trends, current conditions and expected future developments, as well
as the factors we believe are appropriate. Forward-looking statements in this prospectus and the documents incorporated by reference
herein include, but are not limited to, statements relating to:
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our ability to obtain funding for operations, including research funding, and the timing of potential sources of such funding;
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the initiation, timing, cost, location, progress and success of, strategy and plans with respect to, our research and development
programs (including research programs and related milestones with regards to next-generation drug candidates and compounds), preclinical
studies and clinical trials;
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the therapeutic benefits, properties, effectiveness, pharmacokinetic profile and safety of our potential future product candidates,
including the expected benefits, properties, effectiveness, pharmacokinetic profile and safety of our next-generation Aniten compounds;
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our ability to advance potential future product candidates into, and successfully complete, clinical trials;
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our ability to achieve profitability;
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the grant (the “CPRIT Grant”) under the Cancer and Prevention Research Institute of Texas (“CPRIT”)
and payments thereunder, including residual obligations;
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our use of proceeds from funding and financings;
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the Realm acquisition and our ability to effectively liquidate Realm and assume the related obligations;
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our ability to recruit sufficient numbers of patients for future clinical trials, and the benefits expected therefrom;
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our ability to establish and maintain relationships with collaborators with acceptable development, regulatory and commercialization
expertise and the benefits to be derived from such collaborative efforts;
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the implementation of our business model and strategic plans, including strategic plans with respect to patent applications
and strategic collaborations partnerships;
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our ability to identify, develop and commercialize product candidates;
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our commercialization, marketing and manufacturing capabilities and strategy;
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our ability to protect our intellectual property and operate our business without infringing upon the intellectual property
rights of others;
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our expectations regarding federal, state, provincial and foreign regulatory requirements, including our plans with respect
to anticipated regulatory filings;
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whether we will receive, and the timing and costs of obtaining, regulatory approvals in the United States, Canada and other
jurisdictions;
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the accuracy of our estimates of the size and characteristics of the markets that may be addressed by our potential future
product candidates;
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the rate and degree of market acceptance and clinical utility of our potential future product candidates, if any;
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the timing of, and our ability and our collaborators’ ability, if any, to obtain and maintain regulatory approvals for
our potential future product candidates;
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our expectations regarding market risk, including interest rate changes and foreign currency fluctuations;
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our ability to engage and retain the employees required to grow our business;
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the compensation that is expected to be paid to our employees;
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our future financial performance and projected expenditures;
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developments relating to our competitors and our industry, including the success of competing therapies that are or may become
available; and
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estimates of our financial condition, expenses, future revenue, capital requirements and our needs for additional financing
and potential sources of capital and funding.
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Such statements reflect our current views with respect to future
events and are subject to risks and uncertainties and are necessarily based upon a number of estimates and assumptions that, while
considered reasonable by us, are inherently subject to significant business, economic, competitive, political and social uncertainties
and contingencies, many of which, with respect to future events, are subject to change. The factors and assumptions used by us
to develop such forward-looking statements include, but are not limited to:
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our ability to identify a product candidate or product candidates;
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the availability of financing on reasonable terms;
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the Company’s ability to repay debt;
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our ability to obtain regulatory and other approvals to commence a clinical trial involving future product candidates;
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our ability to obtain positive results from our research and development activities, including clinical trials;
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our ability to obtain required regulatory approvals;
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our ability to protect patents and proprietary rights;
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our ability to successfully out-license or sell our future products, if any, and in-license and develop new products;
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favorable general business and economic conditions;
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our ability to attract and retain skilled staff;
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market competition; and
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the products and technology offered by our competitors.
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By their very nature, forward-looking statements or information
involve known and unknown risks, uncertainties and other factors that may cause our actual results, events or developments, or
industry results, to be materially different from any future results, events or developments expressed or implied by such forward-looking
statements or information. In evaluating these statements, prospective purchasers should specifically consider various factors,
including the risks outlined herein and in documents incorporated by reference herein and therein, under the heading “Risk
Factors.” Some of these risks and assumptions include, among others:
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uncertainty as to our ability to raise additional funding;
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risks related to potential U.S. or Canadian federal income tax consequences;
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risks related to our ability to raise additional capital on favorable terms;
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uncertainty as to our ability to generate sufficient cash to service our indebtedness;
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risks related to the acquisition of Realm and the assumption of related obligations;
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risks that we may default on the residual obligations of the agreement providing for the CPRIT Grant, which may result in us
not receiving the remaining CPRIT Grant funds and/or having to reimburse all of the CPRIT Grant, if such default is not waived
by CPRIT;
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risks related to our ability to continue as a going concern;
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risks related to our incurrence of significant losses in every quarter since our inception and anticipation that we will continue
to incur significant losses in the future;
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risks related to our limited operating history;
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risks related to our ability to identify a product candidate through preclinical studies and obtain regulatory approval of
an Investigational New Drug application to commence a clinical trial;
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risks related to our future success is dependent primarily on identification through preclinical studies, regulatory approval
and commercialization of a single product candidate;
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risks related to our ability to continue to license our product candidates or technology from third parties;
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uncertainty related to our ability to obtain required regulatory approvals for ESSA’s proposed products;
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risks related to our ability to successfully identify and develop potential future product candidates in a timely manner;
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risks related to our ability to successfully commercialize future product candidates;
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risks related to the possibility that our potential future product candidates may have undesirable side effects;
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risks related to clinical drug development;
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risks related to our ability to conduct a clinical trial or submit a future New Drug Application/New Drug Submission or Investigational
New Drug/Clinical Trial Application;
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risks related to our ability to enroll subjects in future clinical trials;
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risks that the U.S. Food and Drug Administration may not accept data from trials conducted in such locations outside the United
States;
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risks related to our ongoing obligations and continued regulatory review;
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risks related to potential administrative or judicial sanctions;
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the risk of increased costs associated with prolonged, delayed or terminated clinical trials;
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risks related to our failure to obtain regulatory approval in international jurisdictions;
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risks related to recently enacted and future legislation in the United States that may increase the difficulty and cost for
us to obtain marketing approval of, and commercialize, our potential future products and affect the prices we may obtain;
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risks related to new legislation, new regulatory requirements and the continuing efforts of governmental and third party payors
to contain or reduce the costs of healthcare;
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the risk that third parties may not carry out their contractual duties;
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risks related to the possibility that our relationships with academic institutions and clinical research organizations may
terminate;
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risks related to our lack of experience manufacturing product candidates on a large clinical or commercial scale and our lack
of manufacturing facility;
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our reliance on proprietary technology;
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we may not be able to protect our intellectual property rights throughout the world;
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risks related to claims by third parties asserting that we, or our employees have misappropriated their intellectual property,
or claiming ownership of what we regard as our intellectual property;
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risks related to our ability to comply with governmental patent agency requirements in order to maintain patent protection;
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risks related to computer system failures or security breaches;
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risks related to business disruptions that could seriously harm our future revenues and financial condition and increase our
costs and expenses;
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risks related to our dependence on the use of information technologies;
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risks related to our ability to attract and maintain highly-qualified personnel;
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third-party coverage and reimbursement and health care cost containment initiatives and treatment guidelines may constrain
our future revenues;
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risks related to potential conflicts of interest between us and our directors and officers;
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competition from other biotechnology and pharmaceutical companies;
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risks related to movements in foreign currency exchange rates;
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risks related to our ability to convince public payors and hospitals to include our potential future products on their approved
formulary lists;
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risks related to our ability to establish an effective sales force and marketing infrastructure, or enter into acceptable third-party
sales and marketing or licensing arrangements;
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risks related to our ability to manage growth;
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risks related to our ability to achieve or maintain expected levels of market acceptance for our products;
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risks related to our ability to realize benefits from acquired businesses or products or form strategic alliances in the future;
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risks related to collaborations with third parties;
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risks that employees may engage in misconduct or other improper activities, including noncompliance with regulatory standards
and requirements, which could cause significant liability for ESSA and harm our reputation;
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risks related to product liability lawsuits;
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risks related to compulsory licensing and/or generic competition;
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risks related to the increased costs and effort as a result of ESSA being a public company;
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risks inherent in foreign operations;
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laws and regulations governing international operations may preclude us from developing, manufacturing and selling certain
product candidates outside of the United States and Canada and require ESSA to develop and implement costly compliance programs;
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risks related to laws that govern fraud and abuse and patients’ rights;
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risks related to our ability to comply with environmental, health and safety laws and regulations;
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risks related to the different disclosure obligations for a U.S. domestic reporting company and a foreign private issuer such
as ESSA;
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risks relating to our ability to maintain our status as a foreign private issuer in the future;
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the risk that we could become a “passive foreign investment company;”
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risks related to our status as an emerging growth company;
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risks related to United States investors’ ability to effect service of process or enforcement of actions against us;
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risks related to our ability to maintain compliance with Nasdaq listing and TSX-V listing requirements;
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risks related to market price and trading volume volatility;
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risks related to our dividend policy;
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risks associated with future sales of our securities;
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risks related to our ability to implement and maintain effective internal controls;
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risks related to our ability to maintain an active trading market for our common shares;
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risks related to share price volatility associated with our thinly traded common shares; and
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risks related to analyst coverage.
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Should one or more of these risks or uncertainties or a risk
that is not currently known to us materialize, or should assumptions underlying the forward-looking statements prove incorrect,
actual results may vary materially from those expressed or implied herein. These forward-looking statements are made as of the
date of this prospectus or, in the case of documents incorporated by reference in this prospectus, as of the date of such documents,
and we do not intend, and do not assume any obligation, to update these forward-looking statements, except as required by law.
Investors are cautioned that forward-looking statements are not guarantees of future performance and investors are cautioned not
to put undue reliance on forward-looking statements due to their inherent uncertainty.
PRESENTATION
OF FINANCIAL INFORMATION AND EXCHANGE RATE DATA
Unless indicated otherwise, financial information in this prospectus,
including the documents incorporated by reference herein, has been prepared in accordance with International Financial Reporting
Standards, which differs in some significant respects from generally accepted accounting principles in the United States, or U.S. GAAP,
and thus this financial information may not be comparable to the financial statements of U.S. companies.
We use the United States dollar as our reporting currency.
The following table sets forth for each period indicated: (1) the low and high exchange rates during such period; (2) the
exchange rates in effect at the end of the period; and (3) the average exchange rates for such period, for one Canadian dollar,
expressed in U.S. dollars, as quoted by the Bank of Canada. The average exchange rate is calculated on the last business day of
each month for the applicable period.
|
|
Year Ended September 30,
|
|
|
|
2016
|
|
|
2017
|
|
|
2018
|
|
Low
|
|
|
0.6854
|
|
|
|
0.7276
|
|
|
|
0.7583
|
|
High
|
|
|
0.7972
|
|
|
|
0.8245
|
|
|
|
0.7749
|
|
Period End
|
|
|
0.7624
|
|
|
|
0.8013
|
|
|
|
0.7725
|
|
Average
|
|
|
0.7565
|
|
|
|
0.7626
|
|
|
|
0.7671
|
|
The following table sets forth, for each of the last six months,
the low and high closing exchange rates and the closing exchange rate at the end of the month for Canadian dollars expressed in
United States dollars, as quoted by the Bank of Canada:
|
|
Last
Six Months
|
|
|
|
April
|
|
|
May
|
|
|
June
|
|
|
July
|
|
|
August
|
|
|
September
|
|
Low
|
|
|
0.7411
|
|
|
|
0.7393
|
|
|
|
0.7424
|
|
|
|
0.7586
|
|
|
|
0.7505
|
|
|
|
0.7495
|
|
High
|
|
|
0.7510
|
|
|
|
0.7457
|
|
|
|
0.7641
|
|
|
|
0.7670
|
|
|
|
0.7566
|
|
|
|
0.7603
|
|
End of Month
|
|
|
0.7450
|
|
|
|
0.7393
|
|
|
|
0.7641
|
|
|
|
0.7606
|
|
|
|
0.7522
|
|
|
|
0.7535
|
|
USE
OF PROCEEDS
We will not receive any of the proceeds from the common shares
sold by the selling shareholders. We will not receive any cash proceeds from the selling shareholders in connection with the exercise
of the 2019 Pre-Funded Warrants issued pursuant to the August 2019 Offering, which will be effected on a “net” or “cashless”
basis. We have agreed to pay all expenses in connection with the registration of the common shares offered by the selling shareholders.
Normal underwriting commissions and brokers fees, however, as well as any applicable transfer taxes and other selling expenses,
are payable by the selling shareholders.
DIVIDEND
POLICY
Our dividend policy is set forth under the heading “Item
8.A. Consolidated Statements and Other Financial Information” in our annual report on Form 20-F for the year ended September 30, 2018, which is incorporated in this prospectus by reference, as updated by our subsequent filings under the Exchange Act.
DESCRIPTION
OF SHARE CAPITAL
Common Shares
We are authorized to issue an unlimited number of common shares,
without par value. As of October 4, 2019, there were 20,762,380 common shares issued and outstanding, 1,122,461 common shares issuable
upon exercise of outstanding stock options, and 12,393,092 common shares issuable upon exercise of warrants, including the 2019
Pre-Funded Warrants.
Holders of common shares are entitled to receive notice of any
meetings of our shareholders, and to attend and to cast one vote per common share at all such meetings. Holders of common shares
are entitled to receive on a pro rata basis such dividends on the common shares, if any, as and when declared by our board of directors
at its discretion, from funds legally available therefor, and, upon the liquidation, dissolution or winding up of the company,
are entitled to receive on a pro rata basis the net assets of the company after payment of debts and other liabilities, in each
case subject to the rights, privileges, restrictions and conditions attaching to any other series or class of shares ranking senior
in priority to or on a pro rata basis with, the holders of common shares with respect to dividends or liquidation. The common shares
do not carry any pre-emptive, subscription, redemption or conversion rights, nor do they contain any sinking or purchase fund provisions.
Registration Rights
Registration Rights Agreement
– August 2019
Certain of the selling shareholders acquired common shares and
the 2019 Pre-Funded Warrants pursuant to the August 2019 Offering. In connection with the August 2019 Offering, we entered into
a registration rights agreement with these selling shareholders on August 27, 2019, pursuant to which we agreed to file with the
SEC a registration statement registering resales, from time to time, of the common shares and the common shares issuable upon the
exercise of the 2019 Pre-Funded Warrants issued pursuant to the August 2019 Offering. We agreed to pay all expenses relating to
the registration required under the registration rights agreement, except for the underwriting discounts and selling commissions
payable by, and all legal fees and expenses of legal counsel for, any selling shareholder. We have filed the associated registration
rights agreement that contains these selling shareholders’ registration rights as an exhibit to the registration statement
of which this prospectus forms a part.
Transfer Agent and Registrar
The Canadian transfer agent and registrar for our common shares
is Computershare Investor Services Inc. at its principal offices in Vancouver, British Columbia and Toronto, Ontario. The U.S.
transfer agent for our common shares is Computershare Trust Company, N.A. at its offices in Canton, MA, Jersey City, NJ and Louisville,
KY.
INCOME
TAX CONSIDERATIONS
The following summaries are of a general nature only and
are not intended to be, nor should they be construed to be, legal or tax advice to any particular holder of common shares. Accordingly,
holders should consult their own tax advisors for advice with respect to the income tax consequences to them of acquiring, holding
and disposing of common shares having regard to their own particular circumstances.
United States Federal Income Tax Considerations
The following is a summary of the anticipated U.S. federal income
tax consequences generally applicable to U.S. Holders (as defined below) of the ownership and disposition of the common shares.
This summary addresses only holders who acquire and hold the common shares as “capital assets” (generally, assets held
for investment purposes).
The following summary does not purport to address all U.S. federal
income tax consequences that may be relevant to a U.S. Holder (as defined below) as a result of the ownership and disposition of
the common shares, nor does it take into account the specific circumstances of any particular holder, some of which may be subject
to special tax rules (including, but not limited to, brokers, dealers in securities or currencies, traders in securities that elect
to use a mark-to-market method of accounting for securities holdings, tax-exempt organizations, insurance companies, banks, thrifts
and other financial institutions, persons liable for alternative minimum tax, persons that hold an interest in an entity that holds
the common shares, persons that will own, or will have owned, directly, indirectly or constructively 10% or more (by vote or value)
of our stock, persons that hold the common shares as part of a hedging, integration, conversion or constructive sale transaction
or a straddle, former citizens or permanent residents of the United States, or persons whose functional currency is not the U.S.
dollar).
This summary is based on the U.S. Internal Revenue Code of 1986,
as amended (the “Code”), U.S. Treasury regulations, administrative pronouncements and rulings of the United States
Internal Revenue Service (the “IRS”), judicial decisions and the Canada-United States Income Tax Convention (1980),
as amended, all as in effect on the date hereof, and all of which are subject to change (possibly with retroactive effect) and
to differing interpretations. Except as specifically set forth below, this summary does not discuss applicable income tax reporting
requirements. This summary does not describe any state, local or foreign tax law considerations, or any aspect of U.S. federal
tax law other than income taxation (e.g., estate or gift tax or the Medicare contribution tax). U.S. Holders (as defined below)
should consult their own tax advisers regarding such matters.
No legal opinion from U.S. legal counsel or ruling from the
IRS has been requested, or will be obtained, regarding the U.S. federal income tax consequences of the ownership or disposition
of the common shares. This summary is not binding on the IRS, and the IRS is not precluded from taking a position that is different
from, and contrary to, the positions taken in this summary. In addition, because the authorities on which this summary is based
are subject to different interpretations, the IRS and U.S. courts could disagree with one or more of the positions taken in this
summary.
As used in this summary, a “U.S. Holder” is a beneficial
owner of the common shares who, for U.S. federal income tax purposes, is (i) a citizen or individual resident of the United
States, (ii) a corporation (or other entity that is classified as a corporation for U.S. federal income tax purposes) that
is created or organized in or under the laws of the United States, any State thereof or the District of Columbia, (iii) an
estate whose income is subject to U.S. federal income tax regardless of its source, or (iv) a trust if (A) a U.S. court
can exercise primary supervision over the trust’s administration and one or more U.S. persons are authorized to control all
substantial decisions of the trust, or (B) the trust has a valid election in effect to be treated as a U.S. person for U.S.
federal income tax purposes.
The tax treatment of a partner in a partnership (or other entity
or arrangement classified as a partnership for U.S. federal income tax purposes) that holds the common shares may depend on both
the partnership’s and the partner’s status and the activities of the partnership. Partnerships (or other entities or
arrangements classified as a partnership for U.S. federal income tax purposes) that are beneficial owners of the common shares,
and their partners and other owners, should consult their own tax advisers regarding the tax consequences of the ownership and
disposition of the common shares.
Passive Foreign Investment Company Rules
A foreign corporation will be considered a passive foreign investment
company (“PFIC”) for any taxable year in which (1) 75% or more of its gross income is “passive income”
under the PFIC rules or (2) 50% or more of the average quarterly value of its assets produce (or are held for the production
of) “passive income.” For this purpose, “passive income” generally includes interest, dividends, certain
rents and royalties, and certain gains. Moreover, for purposes of determining if the foreign corporation is a PFIC, if the foreign
corporation owns, directly or indirectly, at least 25%, by value, of the shares of another corporation, it will be treated as if
it holds directly its proportionate share of the assets and receives directly its proportionate share of the income of such other
corporation. If a corporation is treated as a PFIC with respect to a U.S. Holder for any taxable year, the corporation will continue
to be treated as a PFIC with respect to that U.S. Holder in all succeeding taxable years, regardless of whether the corporation
continues to meet the PFIC requirements in such years, unless certain elections are made.
The determination as to whether a foreign corporation is a PFIC
is based on the application of complex U.S. federal income tax rules, which are subject to differing interpretations, and the determination
will depend on the composition of the income, expenses and assets of the foreign corporation from time to time and the nature of
the activities performed by its officers and employees. ESSA believes that it was classified as a PFIC for the taxable year ending
September 30, 2018, and ESSA believes that it may be classified as a PFIC for the current taxable year and in future taxable years.
However, our actual PFIC status for the current or any future taxable year is uncertain and cannot be determined until after the
end of such taxable year.
If we are classified as a PFIC, a U.S. Holder that does not
make any of the elections described below would be required to report any gain on the disposition of common shares as ordinary
income, rather than as capital gain, and to compute the tax liability on the gain and any “Excess Distribution” (as
defined below) received in respect of common shares as if such items had been earned ratably over each day in the U.S. Holder’s
holding period (or a portion thereof) for the common shares. The amounts allocated to the taxable year during which the gain is
realized or distribution is made, and to any taxable years in such U.S. Holder’s holding period that are before the first
taxable year in which we are treated as a PFIC with respect to the U.S. Holder, would be included in the U.S. Holder’s gross
income as ordinary income for the taxable year of the gain or distribution. The amount allocated to each other taxable year would
be taxed as ordinary income in the taxable year during which the gain is realized or distribution is made at the highest tax rate
in effect for the U.S. Holder in that other taxable year and would be subject to an interest charge as if the income tax liabilities
had been due with respect to each such prior year. For purposes of these rules, gifts, exchanges pursuant to corporate reorganizations
and use of common shares as security for a loan may be treated as a taxable disposition of the common shares. An “Excess
Distribution” is the amount by which distributions during a taxable year in respect of a common share exceed 125% of the
average amount of distributions in respect thereof during the three preceding taxable years (or, if shorter, the U.S. Holder’s
holding period for the common shares).
Certain additional adverse tax rules will apply to a U.S. Holder
for any taxable year in which we are treated as a PFIC with respect to such U.S. Holder and any of our subsidiaries is also treated
as a PFIC (a “Subsidiary PFIC”). In such a case, the U.S. Holder will generally be deemed to own its proportionate
interest (by value) in any Subsidiary PFIC and be subject to the PFIC rules described above with respect to the Subsidiary PFIC
regardless of such U.S. Holder’s percentage ownership in us.
The adverse tax consequences described above may be mitigated
if a U.S. Holder makes a timely “qualified electing fund” election (a “QEF election”) with respect to its
interest in the PFIC. Consequently, if we are classified as a PFIC, it may be advantageous for a U.S. Holder to elect to treat
us as a “qualified electing fund” with respect to such U.S. Holder in the first year in which it holds common shares.
If a U.S. Holder makes a timely QEF election with respect to ESSA, the electing U.S. Holder would be required in each taxable year
that we are considered a PFIC to include in gross income (i) as ordinary income, the U.S. Holder’s pro rata share of
the ordinary earnings of ESSA and (ii) as capital gain, the U.S. Holder’s pro rata share of the net capital gain (if
any) of ESSA, whether or not the ordinary earnings or net capital gain are distributed. An electing U.S. Holder’s basis in
common shares will be increased to reflect the amount of any taxed but undistributed income. Distributions of income that had previously
been taxed will result in a corresponding reduction of basis in the common shares and will not be taxed again as distributions
to the U.S. Holder.
A QEF election made with respect to ESSA will not apply to any
Subsidiary PFIC; a QEF election must be made separately for each Subsidiary PFIC (in which case the treatment described above would
apply to such Subsidiary PFIC). If a U.S. Holder makes a timely QEF election with respect to a Subsidiary PFIC, it would be required
in each taxable year to include in gross income its pro rata share of the ordinary earnings and net capital gain of such Subsidiary
PFIC, but may not receive a distribution of such income. Such a U.S. Holder may, subject to certain limitations, elect to defer
payment of current U.S. federal income tax on such amounts, subject to an interest charge (which would not be deductible for U.S.
federal income tax purposes if the U.S. Holder were an individual).
If we determines that we, and any subsidiary in which we own,
directly or indirectly, more than 50% of such subsidiary’s total aggregate voting power, is likely a PFIC in any taxable
year, we intend to make available to U.S. Holders, upon request and in accordance with applicable procedures, a “PFIC Annual
Information Statement” with respect to ESSA and any such subsidiary for such taxable year. The “PFIC Annual Information
Statement” may be used by U.S. Holders for purposes of complying with the reporting requirements applicable to a QEF election
with respect to ESSA and any Subsidiary PFIC. The U.S. federal income tax on any gain from the disposition of common shares or
from the receipt of Excess Distributions may be greater than the tax if a timely QEF election is made.
Alternatively, if we were to be classified as a PFIC, a U.S.
Holder could also avoid certain of the rules described above by making a mark-to-market election (instead of a QEF election), provided
the common shares are treated as regularly traded on a qualified exchange or other market within the meaning of the applicable
U.S. Treasury Regulations. However, a U.S. Holder will not be permitted to make a mark-to-market election with respect to a Subsidiary
PFIC. U.S. Holders should consult their own tax advisers regarding the potential availability and consequences of a mark-to-market
election, as well as the advisability of making a protective QEF election in case we are classified as a PFIC in any taxable year.
During any taxable year in which we or any Subsidiary PFIC is
treated as a PFIC with respect to a U.S. Holder, that U.S. Holder generally must file IRS Form 8621. U.S. Holders should consult
their own tax advisers concerning annual filing requirements.
The
Common Shares
Distributions on the Common Shares
In general, subject to the passive foreign investment company
rules discussed above, the gross amount of any distribution received by a U.S. Holder with respect to the common shares (including
amounts withheld to pay Canadian withholding taxes) will be included in the gross income of the U.S. Holder as a dividend to the
extent attributable to our current and accumulated earnings and profits, as determined under U.S. federal income tax principles.
We may not calculate our earnings and profits for each year under U.S. federal income tax rules. Accordingly, U.S. Holders should
expect that a distribution generally will be treated as a dividend for U.S. federal income tax purposes. Subject to the passive
foreign investment company rules discussed above, distributions on the common shares to certain non-corporate U.S. Holders that
are treated as dividends may be taxed at preferential rates provided we are not treated as a PFIC for the taxable year of the distribution
or the preceding taxable year. Such dividends will not be eligible for the “dividends received” deduction ordinarily
allowed to corporate shareholders with respect to dividends received from U.S. corporations.
The amount of any dividend paid in Canadian dollars (including
amounts withheld to pay Canadian withholding taxes) will equal the U.S. dollar value of the Canadian dollars calculated by reference
to the exchange rate in effect on the date the dividend is received by the U.S. Holder, regardless of whether the Canadian dollars
are converted into U.S. dollars. A U.S. Holder will have a tax basis in the Canadian dollars equal to their U.S. dollar value on
the date of receipt. If the Canadian dollars received are converted into U.S. dollars on the date of receipt, the U.S. Holder
should generally not be required to recognize foreign currency gain or loss in respect of the distribution. If the Canadian dollars
received are not converted into U.S. dollars on the date of receipt, a U.S. Holder may recognize foreign currency gain or loss
on a subsequent conversion or other disposition of the Canadian dollars. Such gain or loss will be treated as U.S. source ordinary
income or loss.
Distributions on the common shares that are treated as dividends
generally will constitute income from sources outside the United States and generally will be categorized for U.S. foreign tax
credit purposes as “passive category income.” A U.S. Holder may be eligible to elect to claim a U.S. foreign tax credit
against its U.S. federal income tax liability, subject to applicable limitations and holding period requirements, for Canadian
tax withheld, if any, from distributions received in respect of the common shares. A U.S. Holder that does not elect to claim a
U.S. foreign tax credit may instead claim a deduction for Canadian tax withheld, but only for a taxable year in which the U.S.
Holder elects to do so with respect to all foreign income taxes paid or accrued in such taxable year. The rules relating to U.S.
foreign tax credits are complex, and each U.S. Holder should consult its own tax adviser regarding the application of such rules.
Sale, Exchange or Other Taxable
Disposition of the Common Shares
A U.S. Holder generally will recognize gain or loss on the sale,
exchange or other taxable disposition of common shares in an amount equal to the difference, if any, between the amount realized
on the sale, exchange or other taxable disposition and the U.S. Holder’s adjusted tax basis in the common shares exchanged
therefor. Subject to the passive foreign investment company rules discussed above, such gain or loss will be capital gain or loss
and will be long-term capital gain (currently taxable at a reduced rate for non-corporate U.S. Holders) or loss if, on the date
of the sale, exchange or other taxable disposition, the common shares have been held by such U.S. Holder for more than one year.
The deductibility of capital losses is subject to limitations. Such gain or loss generally will be sourced within the United States
for U.S. foreign tax credit purposes.
Required Disclosure with Respect to Foreign
Financial Assets
Certain U.S. Holders are required to report information relating
to an interest in the common shares, subject to certain exceptions (including an exception for common shares held in accounts maintained
by certain financial institutions), by attaching a completed IRS Form 8938, Statement of Specified Foreign Financial Assets, with
their tax return for each year in which they hold an interest in common shares. U.S. Holders should consult their own tax advisers
regarding information reporting requirements relating to their ownership of the common shares.
Canadian Federal Income Tax Considerations
The following is, as of the date of this prospectus, a summary
of the principal Canadian federal income tax considerations generally applicable to an investor who acquires common shares.
This summary applies only to a holder who is a beneficial owner
of common shares, and who, for the purposes of the Income Tax Act (Canada) (the “Tax Act”) and the regulations
thereunder (the “Regulations”), and at all relevant times, deals at arm’s length with us, is not affiliated with
us or the Selling Shareholders, and who acquires and holds the common shares as capital property (a “Holder”). Generally,
the common shares will be considered to be capital property to a Holder thereof provided that the Holder does not use the common
shares in the course of carrying on a business of trading or dealing in securities and such Holder has not acquired them in one
or more transactions considered to be an adventure or concern in the nature of trade.
This summary does not apply to a Holder (i) that is a “financial
institution” for the purposes of the mark-to-market rules contained in the Tax Act; (ii) that is a “specified
financial institution” as defined in the Tax Act; (iii) an interest in which would be a “tax shelter investment”
as defined in the Tax Act; (iv) that has made a functional currency reporting election under the Tax Act; or (v) that
has or will enter into a “derivative forward agreement” or “synthetic disposition agreement,” as those
terms are defined in the Tax Act, with respect to the common shares. Such Holders should consult their own tax advisors with respect
to an investment in common shares.
Additional considerations, not discussed herein, may be applicable
to a Holder that is a corporation resident in Canada or a corporation that does not deal at arm’s length, for purposes of
the Tax Act, with a corporation resident in Canada, and is, or becomes as part of a transaction or event or series of transactions
or events that includes the acquisition of the common shares, controlled by a non-resident person, or group of non-resident persons.
not dealing with each other at arm’s length, for purposes
of the “foreign affiliate dumping” rules in section 212.3 of the Tax Act. Such Holders should consult their tax advisors
with respect to the consequences of acquiring common shares.
This summary is based upon the current provisions of the Tax
Act and the Regulations, counsel’s understanding of the current published administrative policies and assessing practices
of the Canada Revenue Agency (the “CRA”) and all specific proposals to amend the Tax Act and the Regulations publicly
announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof (the “Tax Proposals”). This
summary assumes that the Tax Proposals will be enacted substantially as proposed; however, no assurance can be given that the Tax
Proposals will be enacted as proposed or at all. This summary does not otherwise take into account or anticipate any changes in
law or the CRA’s administrative policies or assessing practices, whether by legislative, governmental or judicial decision
or action, nor does it take into account any provincial, territorial or foreign income tax legislation or considerations.
This summary is of a general nature only, is not exhaustive
of all possible Canadian federal income tax considerations and is not intended to be, nor should it be construed to be, legal or
tax advice to any particular Holder. Accordingly, Holders should consult their own tax advisors with respect to their particular
circumstances.
Currency Conversion
Subject to certain exceptions that are not discussed herein,
for purposes of the Tax Act, all amounts relating to the acquisition, holding or disposition of common shares, including dividends,
adjusted cost base and proceeds of dispositions must be determined in Canadian dollars based using the rate of exchange quoted
by the Bank of Canada on the particular date the particular amount arose or such other rate of exchange as acceptable to the CRA.
Holders Resident in Canada
The following section of this summary is generally applicable
to a Holder who, for the purposes of the Tax Act, is or is deemed to be resident in Canada at all relevant times (“Resident
Holder”). A Resident Holder whose common shares might not otherwise qualify as capital property may be entitled to make an
irrevocable election permitted by subsection 39(4) of the Tax Act to deem the common shares, and every other “Canadian security”
(as defined in the Tax Act), held by such person, in the taxation year of the election and each subsequent taxation year to be
capital property. Resident Holders should consult their own tax advisors regarding this election.
Dividends
Dividends received or deemed to be received on the common shares
will be included in computing a Resident Holder’s income. In the case of an individual (other than certain trusts), such
dividends will be subject to the gross-up and dividend tax credit rules normally applicable in respect of “taxable dividends”
received from “taxable Canadian corporations” (as defined in the Tax Act). An enhanced dividend tax credit will be
available to individuals (other than certain trusts) in respect of “eligible dividends” designated by us to the Resident
Holder in accordance with the provisions of the Tax Act. There may be limitations on our ability to designate dividends as “eligible
dividends.”
Dividends received or deemed to be received on the common shares
by a Resident Holder that is a corporation must be included in computing its income but generally will be deductible in computing
its taxable income. In certain circumstances, subsection 55(2) of the Tax Act will treat a taxable dividend received or deemed
to be received by a Resident Holder that is a corporation as proceeds of disposition or a capital gain. Resident Holders that are
corporations should consult their own tax advisors having regard to their own circumstances.
A Resident Holder that is throughout the relevant taxation year
a “Canadian-controlled private corporation” (as defined in the Tax Act) also may be liable to pay an additional refundable
tax on its “aggregate investment income” (as defined in the Tax Act) for the year, which is defined to include an amount
in respect of dividends.
A Resident Holder that is a “private corporation”
or a “subject corporation” (as defined in the Tax Act), may be liable to pay a refundable tax under Part IV of the
Tax Act on dividends received or deemed to be received on the common shares to the extent such dividends are deductible in computing
taxable income.
Dispositions of Shares
Upon a disposition or a deemed disposition of a common share,
a Resident Holder generally will realize a capital gain (or a capital loss) equal to the amount by which the proceeds of disposition,
net of any reasonable costs of disposition, are greater (or are less) than the adjusted cost base of such security to the Resident
Holder. The tax treatment of capital gains and capital losses is discussed in greater detail below under the subheading “Capital
Gains and Capital Losses.”
Capital Gains and Capital Losses
Generally, a Resident Holder is required to include in computing
its income for a taxation year one-half of the amount of any capital gain (a “taxable capital gain”) realized in the
year. Subject to and in accordance with the provisions of the Tax Act, a Resident Holder is required to deduct one-half of the
amount of any capital loss (an “allowable capital loss”) realized in a taxation year from taxable capital gains realized
in the year by such Resident Holder. Allowable capital losses in excess of taxable capital gains realized in a taxation year may
be carried back and deducted in any of the three preceding taxation years or carried forward and deducted in any following taxation
year against taxable capital gains realized in such year to the extent and under the circumstances described in the Tax Act.
The amount of any capital loss realized on the disposition or
deemed disposition of common shares by a Resident Holder that is a corporation may be reduced by the amount of dividends received
or deemed to have been received by it on such common shares or shares substituted for such common shares, to the extent and in
the circumstances specified by the Tax Act. Similar rules may apply where a common share is owned by a partnership or trust of
which a corporation, trust or partnership is a member or beneficiary. Resident Holders to whom these rules may be relevant should
consult their own tax advisors.
A Resident Holder that is throughout the relevant taxation year
a “Canadian-controlled private corporation” (as defined in the Tax Act) also may be liable to pay an additional refundable
tax on its “aggregate investment income” (as defined in the Tax Act) for the year which will include taxable capital
gains.
Minimum Tax
Capital gains realized and dividends received by a Resident
Holder that is an individual or a trust, other than certain specified trusts, may give rise to minimum tax under the Tax Act. Resident
Holders should consult their own advisors with respect to the application of the minimum tax.
Holders Not Resident in Canada
The following section of this summary is generally applicable
to Holders who for the purposes of the Tax Act (i) have not been and will not be deemed to be resident in Canada at any time
while they hold the common shares; and (ii) do not use or hold the common shares in carrying on a business in Canada (“Non-Resident
Holders”).
Special rules, which are not discussed in this summary, may
apply to a Non-Resident Holder that is an insurer carrying on business in Canada and elsewhere. Such Non-Resident Holders should
consult their own tax advisors.
Dividends
Dividends paid or credited or deemed to be paid or credited
to a Non-Resident Holder by us will be subject to Canadian withholding tax at the rate of 25% on the gross amount of the dividend
unless such rate is reduced by the terms of an applicable tax treaty. Under the Canada-United States Tax Convention (1980),
as amended (the “Treaty”), the rate of withholding tax on dividends paid or credited to a Non-Resident Holder who is
resident in the U.S. for purposes of the Treaty and fully entitled to benefits under the Treaty (a “U.S. Holder”) is
generally limited to 15% of the gross amount of the dividend (or 5% in the case of a U.S. Holder that is a company beneficially
owning at least 10% of our voting shares).
Dispositions of Common Shares
A Non-Resident Holder generally will not be subject to tax under
the Tax Act in respect of a capital gain realized on the disposition or deemed disposition of a common share, nor will capital
losses arising therefrom be recognized under the Tax Act, unless the common share constitutes “taxable Canadian property”
to the Non-Resident Holder for purposes of the Tax Act, and the gain is not exempt from tax pursuant to the terms of an applicable
tax treaty.
Provided the common shares are listed on a “designated
stock exchange”, as defined in the Tax Act (which includes the TSX-V and Nasdaq), at the time of disposition, the common
share generally will not constitute taxable Canadian property of a Non-Resident Holder at that time, unless at any time during
the 60 month period immediately preceding the disposition the following two conditions are met concurrently: (i) the Non-Resident
Holder, persons with whom the Non-Resident Holder did not deal at arm’s length, partnerships in which the Non-Resident Holder
or such non-arm’s length person holds a membership interest (either directly or indirectly through one or more partnerships),
or the Non-Resident Holder together with all such persons, owned 25% or more of the issued shares of any class or series of our
shares; and (ii) more than 50% of the fair market value of shares was derived directly or indirectly from one or any combination
of real or immovable property situated in Canada, “Canadian resource properties” (as defined in the Tax Act), “timber
resource properties” (as defined in the Tax Act) or an option, an interest or right in such property, whether or not such
property exists. Notwithstanding the foregoing, a common share may otherwise be deemed to be taxable Canadian property to a Non-Resident
Holder for purposes of the Tax Act in certain circumstances. A Non-Resident Holder’s capital gain (or capital loss) in respect
of a disposition of common shares that constitute or are deemed to constitute taxable Canadian property to a Non-Resident Holder
(and are not “treaty-protected property” as defined in the Tax Act) will generally be computed in the manner described
above under the subheading “Holders Resident in Canada — Dispositions of Shares.” Non-Resident Holders
whose common shares are taxable Canadian property should consult their own tax advisors regarding the tax and compliance considerations
that may be relevant to them.
SELLING
SHAREHOLDERS
This prospectus covers the resale, from time to time, of
up to 20,491,618 common shares or common shares issuable upon the exercise of the 2019 Pre-Funded Warrants held by the
selling shareholders named in the table below after the date of this prospectus. The selling shareholders acquired these
common shares and the 2019 Pre-Funded Warrants pursuant to the August 2019 Offering or as consideration in ESSA’s
acquisition of Realm, as further described below.
Certain of the selling shareholders acquired an aggregate of
6,080,596 common shares and 11,919,404 2019 Pre-Funded Warrants in the August 2019 Offering. We have filed the associated registration
rights agreement executed in connection with the August 2019 Offering as an exhibit to the registration statement of which this
prospectus forms a part.
We have no assurance that the selling shareholders will sell
any of the common shares registered for sale under this prospectus. See “Plan of Distribution.” In addition, the selling
shareholders may have sold or transferred, in transactions exempt from the registration requirements of the Securities Act, some
or all of their registerable common shares since the date on which the information in the table below is presented. The common
shares listed below may be sold pursuant to this prospectus or in privately negotiated transactions. Accordingly, we cannot estimate
the number of common shares that the selling shareholders will sell under this prospectus. Information about the selling shareholders
may change over time.
The following table, to our knowledge, sets forth information
regarding the beneficial ownership of our common shares of the selling shareholders as of October 4, 2019. Beneficial ownership
is determined in accordance with the rules of the SEC. Under these rules, beneficial ownership includes any common shares as to
which the individual or entity has sole or shared voting power or investment power and includes any shares as to which the individual
or entity has the right to acquire beneficial ownership within 60 days after October 4, 2019 through the exercise of any warrant,
stock option or other right. The information provided in the table below is based in part on information provided by or on behalf
of the selling shareholders. To our knowledge, the selling shareholders have sole voting and investment power with respect to the
common shares and have not within the past three years had any position, office or other material relationship with us (including
any of our affiliates), except as set forth in the footnotes to the table below.
|
|
Common
Shares
Beneficially Owned
Before the Offering(1)
|
|
|
Common
Shares
Being
|
|
|
Common
Shares
Beneficially Owned
After the Offering(2)(3)
|
|
|
|
Number
|
|
|
%
|
|
|
Offered
|
|
|
Number
|
|
|
%
|
|
Selling Shareholders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aspire Capital Fund, LLC
|
|
|
585,000
|
(4)
|
|
|
2.82
|
|
|
|
585,000
|
|
|
|
—
|
|
|
|
—
|
|
Biotechnology Value Fund, L.P.
|
|
|
2,685,470
|
(5)
|
|
|
9.99
|
|
|
|
2,071,757
|
|
|
|
613,713
|
|
|
|
1.88
|
|
Biotechnology Value Fund II, L.P.
|
|
|
2,183,742
|
(6)
|
|
|
9.93
|
|
|
|
1,712,018
|
|
|
|
471,724
|
|
|
|
1.44
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|
Biotechnology Value Trading Fund OS, L.P.
|
|
|
389,924
|
(7)
|
|
|
1.86
|
|
|
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288,279
|
|
|
|
101,645
|
|
|
|
*
|
|
Blackwell Partners LLC – Series A
|
|
|
753,410
|
(8)
|
|
|
3.53
|
|
|
|
753,410
|
|
|
|
—
|
|
|
|
—
|
|
Clarus Lifesciences III, L.P.
|
|
|
3,373,053
|
(9)
|
|
|
16.25
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|
|
|
1,704,493
|
|
|
|
1,668,560
|
|
|
|
5.11
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|
Eventide Healthcare & Life Sciences Fund
|
|
|
1,391,522
|
(10)
|
|
|
6.70
|
|
|
|
625,000
|
|
|
|
766,522
|
|
|
|
2.35
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Investment 10, L.L.C.
|
|
|
104,175
|
(11)
|
|
|
*
|
|
|
|
72,415
|
|
|
|
31,760
|
|
|
|
*
|
|
MSI BVF SPV, L.L.C.
|
|
|
197,255
|
(12)
|
|
|
*
|
|
|
|
86,397
|
|
|
|
110,858
|
|
|
|
*
|
|
Omega Fund IV, L.P.
|
|
|
1,084,848
|
(13)
|
|
|
5.23
|
|
|
|
625,000
|
|
|
|
459,848
|
|
|
|
1.41
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|
OrbiMed Private Investments VI, L.P.
|
|
|
1,471,855
|
(14)
|
|
|
7.09
|
|
|
|
1,471,855
|
|
|
|
—
|
|
|
|
—
|
|
RA Capital Healthcare Fund, L.P.
|
|
|
4,245,994
|
(15)
|
|
|
4.99
|
|
|
|
4,245,994
|
|
|
|
—
|
|
|
|
—
|
|
Soleus Capital Master Fund, L.P.
|
|
|
1,025,000
|
(16)
|
|
|
4.75
|
|
|
|
1,025,000
|
|
|
|
—
|
|
|
|
—
|
|
Soleus Capital Special Opportunities Fund, L.P.
|
|
|
5,225,000
|
(17)
|
|
|
9.99
|
|
|
|
5,225,000
|
|
|
|
—
|
|
|
|
—
|
|
*Less than 1.0% of total outstanding shares.
(1)
|
The percentage of common shares beneficially owned before the offering based on 20,762,380 common shares being outstanding
as of October 4, 2019, and assuming the issuance of that number of common shares equal to the full exercise of all securities convertible
into common shares beneficially owned by each particular selling shareholder.
|
|
|
(2)
|
The percentage of common shares beneficially owned after the offering is based on 20,762,380 common shares being outstanding
as of October 4, 2019, assuming the issuance of 11,919,404 common shares upon full exercise of the 2019 Pre-Funded Warrants.
|
|
|
(3)
|
The selling shareholders might not sell any or all of the common shares offered by this prospectus and as a result, we cannot
estimate the number of common shares that will be held by the selling shareholders after completion of the offering. However, for
the purposes of this table, we have assumed that, after completion of the offering, none of the common shares covered by this prospectus
will be held by selling shareholders.
|
|
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(4)
|
Consists of 585,000 common shares. The address of the entity is c/o Aspire Capital, 155 North Wacker Drive, Suite 1600, Chicago,
IL 60606.
|
|
|
(5)
|
Consists of 1,203,836 common shares and 1,481,634 common shares issuable upon exercise of 2019 Pre-Funded Warrants, provided
that such 2019 Pre-Funded Warrants may not be exercised if, upon such exercise, the number of common shares then beneficially owned
by Biotechnology Value Fund, L.P. would exceed 9.99% of our outstanding common shares (the “9.99% Limit”). Accordingly,
Biotechnology Value Fund, L.P. disclaims beneficial ownership of the common shares issuable upon exercise of such 2019 Pre-Funded
Warrants to the extent that upon such exercise the number of shares beneficially owned by it would exceed the 9.99% Limit. The
address of the entity is c/o BVF Partners, LP, 44 Montgomery St, 40th Floor, San Francisco, CA 94104.
|
|
|
(6)
|
Consists of 948,712 common shares and 1,235,030 common shares issuable upon exercise of 2019 Pre-Funded Warrants subject to
the 9.99% Limit. Accordingly, Biotechnology Value Fund II, L.P. disclaims beneficial ownership of the common shares issuable upon
exercise of such 2019 Pre-Funded Warrants to the extent that upon such exercise the number of shares beneficially owned by it would
exceed the 9.99% Limit. The address of the entity is c/o BVF Partners, LP, 44 Montgomery St, 40th Floor, San Francisco, CA 94104.
|
|
|
(7)
|
Consists of 186,588 common shares and 203,336 common shares issuable upon exercise of 2019 Pre-Funded Warrants subject to the
9.99% Limit. Accordingly, Biotechnology Value Trading Fund OS, L.P. disclaims beneficial ownership of the common shares issuable
upon exercise of such 2019 Pre-Funded Warrants to the extent that upon such exercise the number of shares beneficially owned by
it would exceed the 9.99% Limit. The address of the entity is c/o BVF Partners OS, LTD, PO Box 309 Ugland House, Grand Cayman,
KY1- 1104, Cayman Islands.
|
|
|
(8)
|
Consists of 150,700 common shares and 602,710 common shares issuable upon exercise of 2019 Pre-Funded Warrants, provided that
such 2019 Pre-Funded Warrants may not be exercised if, upon such exercise, the number of common shares then beneficially owned
by Blackwell Partners LLC would exceed 4.99% of our outstanding common shares (the “4.99% Limit”). Accordingly, Blackwell
Partners LLC disclaims beneficial ownership of the common shares issuable upon exercise of such 2019 Pre-Funded Warrants to the
extent that upon such exercise the number of shares beneficially owned by it would exceed the 4.99% Limit. The address of the entity
is c/o Blackwell Partners LLC, 280 S. Mangum Street, Suite 210, Durham, NC 27703.
|
|
|
(9)
|
Consists of 3,373,053 common shares. The address of the entity is c/o Clarus Lifesciences III, L.P., 101 Main Street, Suite
1210, Cambridge, MA 0214.
|
(10)
|
Consists of 1,391,522 common shares. The address of the
entity is c/o Eventide Healthcare & Life Sciences Fund, 80 Arkay Drive, Suite 110, Hauppauge, NY 11704.
|
|
|
(11)
|
Consists of 104,175 common shares. The address of the
entity is c/o BVF Partners, LP, 900 N Michigan Ave, Suite 1100, Chicago, IL 60611.
|
|
|
(12)
|
Consists of 197,255 common shares. The address of the
entity is c/o Magnitude Capital, 200 Park Avenue, 56th Floor, New York, NY 10166.
|
|
|
(13)
|
Consists of 1,084,848 common shares. The address of the
entity is c/o Omega Fund Management LLC, 888 Boylston St., Suite 1111, Boston, MA 02199.
|
|
|
(14)
|
Consists of 1,471,855 common shares. The address of the entity
is c/o OrbiMed Private Investments VI, L.P., 601 Lexington Ave 54th Floor, New York, NY 10022.
|
|
|
(15)
|
Consists of 849,300 common shares and 3,396,694 common
shares issuable upon exercise of 2019 Pre-Funded Warrants subject to the 4.99% Limit. Accordingly, RA Capital Healthcare Fund,
L.P. disclaims beneficial ownership of the common shares issuable upon exercise of such 2019 Pre-Funded Warrants to the extent
that upon such exercise the number of shares beneficially owned by it would exceed the 4.99% Limit. The address of the entity
is c/o RA Capital Management, LLC, 200 Berkeley Street, 18th Floor, Boston, MA 02116.
|
|
|
(16)
|
Consists of 200,000 common shares and 825,000 common
shares issuable upon exercise of the 2019 Pre-Funded Warrants subject to the 9.99% Limit. Accordingly, Soleus Capital Master Fund,
L.P. disclaims beneficial ownership of the common shares issuable upon exercise of such 2019 Pre-Funded Warrants to the extent
that upon such exercise the number of shares beneficially owned by it would exceed the 9.99% Limit. The address of the entity
is c/o Soleus Capital, LLC, 104 Field Point Road, Second Floor, Greenwich CT 06830.
|
|
|
(17)
|
Consists of 1,050,000 common shares and 4,175,000 common
shares issuable upon exercise of 2019 Pre-Funded Warrants subject to the 9.99% Limit. Accordingly, Soleus Capital Special Opportunities
Fund, L.P. disclaims beneficial ownership of the common shares issuable upon exercise of such 2019 Pre-Funded Warrants to the
extent that upon such exercise the number of shares beneficially owned by it would exceed the 9.99% Limit. The address of the
entity is c/o Soleus Capital, LLC, 104 Field Point Road, Second Floor, Greenwich CT 06830.
|
PLAN
OF DISTRIBUTION
The selling shareholders and any of their donees, pledgees,
transferees and successors-in-interest selling common shares or interests in common shares received after the date of this prospectus
from a selling shareholder as a gift, pledge, partnership distribution or other transfer, may, from time to time, sell, transfer
or otherwise dispose of any or all of their common shares on any stock exchange, market or trading facility on which the common
shares are traded or in private transactions. These sales may be at fixed prices, at prevailing market prices at the time of sale,
at prices related to the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices. The
selling shareholders may use various methods when selling shares, including any one or more of the following:
|
·
|
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
|
|
|
|
|
·
|
block trades in which the broker-dealer will attempt to sell the common shares as agent but may position and resell a portion
of the block as principal to facilitate the transaction;
|
|
|
|
|
·
|
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
|
|
|
|
|
·
|
an exchange distribution in accordance with the rules of the applicable exchange;
|
|
|
|
|
·
|
privately negotiated transactions;
|
|
|
|
|
·
|
short sales effected after the date the registration statement of which this prospectus is a part is declared effective by
the SEC;
|
|
|
|
|
·
|
through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
|
|
|
|
|
·
|
broker-dealers may agree with the selling shareholders to sell a specified number of common shares at a stipulated price per
common share;
|
|
|
|
|
·
|
a combination of any of the previously mentioned methods of sale; and
|
|
|
|
|
·
|
any other method permitted pursuant to applicable law.
|
The selling shareholders may, from time to time, pledge or grant
a security interest in some or all of the common shares owned by them and, if they default in the performance of their secured
obligations, the pledgees or secured parties may offer and sell the common shares, from time to time, under this prospectus, or
under an amendment to this prospectus amending the list of selling shareholders to include the pledgee, transferee or other successors
in interest as selling shareholders under this prospectus. The selling shareholders also may transfer the common shares in other
circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for
purposes of this prospectus.
In connection with the sale of the common shares or interests
therein, the selling shareholders may enter into hedging transactions with broker-dealers or other financial institutions, which
may in turn engage in short sales of the common shares in the course of hedging the positions they assume. The selling shareholders
may also sell common shares short and deliver these securities to close out their short positions, or loan or pledge the common
shares to broker-dealers that in turn may sell these securities. The selling shareholders may also enter into option or other transactions
with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery
to such broker-dealer or other financial institution of common shares offered by this prospectus, which common shares such broker-dealer
or other financial institution may resell pursuant to this prospectus.
The aggregate proceeds to the selling shareholders from the
sale of the common shares offered by them will be the purchase price of the common shares less discounts or commissions, if any.
Each of the selling shareholders reserves the right to accept and, together with their agents from time to time, to reject, in
whole or in part, any proposed purchase of common shares to be made directly or through agents. We will not receive any of the
proceeds from this offering. We will not receive any cash proceeds from the selling shareholders in connection with the exercise
of the 2018 Warrants, which will be effected on a “net” or “cashless” basis.
We will pay all fees and expenses in connection with the registration
of the common shares, other than the fees and disbursements of counsel to the selling shareholders.
The selling shareholders also may resell all or a portion of
the common shares in open market transactions in reliance upon Rule 144 or Rule 904 of Regulation S under the Securities Act, provided
that they meet the criteria and conform to the requirements of that rule.
The selling shareholders and any underwriters, broker-dealers
or agents that participate in the sale of the common shares or interests therein may be “underwriters” within the meaning
of Section 2(a)(11) of the Securities Act. Any discounts, commissions, concessions or profit they earn on any resale of the
common shares may be underwriting discounts or commissions under the Securities Act. Selling shareholders who are “underwriters”
within the meaning of Section 2(a)(11) of the Securities Act will be subject to the prospectus delivery requirements of the
Securities Act.
To the extent required, the common shares to be sold, the names
of the selling shareholders, the respective purchase prices and public offering prices, the names of any agents, dealer or underwriter,
any applicable commissions or discounts with respect to a particular offer will be set forth in an amendment to this prospectus
or, if appropriate, a post-effective amendment to the registration statement that includes this prospectus supplement.
In order to comply with the securities laws of some states,
if applicable, the common shares may be sold in these jurisdictions only through registered or licensed brokers or dealers. In
addition, in some states the common shares may not be sold unless they have been registered or qualified for sale or an exemption
from registration or qualification is available and is complied with.
We have advised the selling shareholders that the anti-manipulation
rules of Regulation M under the Exchange Act may apply to sales of common shares in the market and to the activities of the selling
shareholders and their affiliates. In addition, to the extent applicable we will make copies of this prospectus (as it may be amended
from time to time) available to the selling shareholders for the purpose of satisfying the prospectus delivery requirements of
the Securities Act. The selling shareholders may agree to indemnify any broker-dealer that participates in transactions involving
the sale of the common shares against certain liabilities, including liabilities arising under the Securities Act.
We have agreed to indemnify the selling shareholders against
liabilities, including liabilities under the Securities Act and state securities laws, relating to the registration of the common
shares offered by this prospectus.
There can be no assurance that any selling shareholder will
sell any or all of the common shares registered pursuant to the registration statement, of which this prospectus forms a part.
EXPENSES
The following table sets forth expenses payable by us in connection
with the registration of the common shares. All amounts below are estimates except the SEC registration fee.
SEC registration fee
|
|
|
US$
|
8,538.00
|
|
Legal fees and expenses
|
|
|
50,000.00
|
|
Accounting fees and expenses
|
|
|
5,000.00
|
|
Printing fees and expenses
|
|
|
20,000.00
|
|
Miscellaneous
|
|
|
5,000.00
|
|
Total
|
|
|
US$
|
88,538.00
|
|
WHERE
YOU CAN GET MORE INFORMATION
We have filed with the SEC a registration statement on Form
F-3 under the Securities Act with respect to the common shares described in this prospectus. This prospectus, which constitutes
a part of that registration statement, does not contain all of the information set forth in that registration statement and its
exhibits. For further information with respect to us and our common shares, you should consult the registration statement and its
exhibits.
We are required to file with the securities commission or authority
in each of the applicable provinces of Canada annual and quarterly reports, material change reports and other information. In addition,
we are subject to the informational requirements of the Exchange Act, and, in accordance with the Exchange Act, we also must file
reports with, and furnish other information to, the SEC. As a foreign private issuer, we are exempt from the rules under the Exchange
Act prescribing the furnishing and content of proxy statements, and our officers, directors and principal shareholders are exempt
from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we
are not required to publish financial statements as promptly as U.S. companies. However, we file with the SEC an annual report
on Form 20-F containing financial statements audited by an independent registered public accounting firm, and we submit to the
SEC, on Form 6-K, unaudited quarterly financial information. The SEC maintains an internet site (www.sec.gov) that makes available
reports and other information that we file or furnish electronically with it.
INCORPORATION
BY REFERENCE
The SEC allows us to “incorporate by reference”
into this prospectus the documents we file with, or furnish to, them, which means that we can disclose important information to
you by referring you to these documents. The information that we incorporate by reference into this prospectus forms a part of
this prospectus, and information that we file later with the SEC automatically updates and supersedes any information in this prospectus.
We incorporate by reference into this prospectus the document listed below:
All documents filed by us pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this prospectus and prior to the termination of the offering of the common
shares offered by this prospectus are incorporated by reference into this prospectus and form part of this prospectus from the
date of filing or furnishing of these documents. Any documents that we furnish to the SEC on Form 6-K subsequent to the date of
this prospectus will be incorporated by reference into this prospectus only to the extent specifically set forth in the Form 6-K.
Any statement contained in a document that is incorporated by
reference into this prospectus will be deemed to be modified or superseded for the purposes of this prospectus to the extent that
a statement contained in this prospectus, or in any other subsequently filed document which also is or is deemed to be incorporated
by reference into this prospectus, modifies or supersedes that statement. The modifying or superseding statement does not need
to state that it has modified or superseded a prior statement or include any other information set forth in the document that it
modifies or supersedes.
Upon request, we will provide, without charge, to each person
who receives this prospectus, a copy of any or all of the documents incorporated by reference (other than exhibits to the documents
that are not specifically incorporated by reference in the documents). Please direct written or oral requests for copies to our
Corporate Secretary at Suite 720 – 999 West Broadway, Vancouver, British Columbia, Canada V5Z 1K5, by faxing a written request
to 1-888-308-8974 or by calling 1-778-331-0962.
LEGAL
MATTERS
Certain legal matters related to our securities offered by this
prospectus will be passed upon on its behalf by Blake, Cassels & Graydon LLP, with respect to matters of Canadian law,
and Skadden, Arps, Slate, Meagher & Flom LLP, with respect to matters of U.S. law.
EXPERTS
Our audited consolidated financial statements included in this
prospectus have been audited by Davidson & Company LLP at its offices located at 1200 – 609 Granville Street, P.O.
Box 10372, Pacific Centre, Vancouver, British Columbia, Canada V7Y 1G6, independent auditors, as stated in their report appearing
therein.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8.
|
Indemnification of Directors and Officers
|
Under the Business Corporations Act (British Columbia),
a company may indemnify a director or officer of the company, a former director or officer of the company, or another individual
who acts or acted at the company’s request as a director or officer, or an individual acting in a similar capacity, of another
entity, against all costs, charges, and expenses, including an amount paid to settle an action or satisfy a judgment, actually
and reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative, or other proceeding
in which the individual is involved because of that association with the company or other entity. A company must not indemnify
an individual if the individual (i) did not act honestly and in good faith with a view to the best interests of the company
and (ii) in any proceeding other than a civil proceeding, if the individual did not have reasonable grounds for believing
that his or her conduct was lawful. Such indemnification may be made in connection with an action against an individual by or on
behalf of the company or associated corporation to procure a judgment in its favor only with court approval. A director or officer
is entitled to indemnification from the company as a matter of right if he or she was wholly successful, on the merits or otherwise,
or is substantially successful on the merits in the outcome of the proceeding. The company may advance moneys to a director, officer
or other individual for the costs, charges, and expenses of a proceeding referred to above, provided that the individual first
provides an undertaking to repay the moneys if he or she does not fulfill the conditions set forth above to qualify for indemnification
Our articles provide that we will indemnify any of our directors,
former directors, officers, and former officers and other parties specified by the articles against all costs, charges, and expenses,
including an amount paid to settle an action or satisfy a judgment, actually and reasonably incurred by them for any civil, criminal
or administrative action or proceeding to which they are or may be made a party by reason of having been a director or officer.
We have entered into indemnification agreements (“Indemnification
Agreements”) with each of our officers and directors, pursuant to which we are obligated to indemnify and hold harmless such
persons to the greatest extent permitted by law for liabilities arising out of their service to the company as directors and officers.
However, such indemnification obligations arise only to the extent that the party seeking indemnification was acting honestly and
in good faith with a view to our best interests, and, in the case of criminal or administrative actions or other non-civil proceedings
that are enforced by monetary penalties, that such person had reasonable grounds for believing that his or her conduct was lawful.
Under these Indemnification Agreements, we may advance to the indemnified parties the expenses incurred in defending any such actions
or proceedings.
As permitted by the Business Corporations Act (British
Columbia), we have purchased directors’ and officers’ liability insurance that, under certain circumstances, insures
its directors and officers against the costs of defense, settlement, or payment of a judgment.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing provisions,
the registrant has been informed that in the opinion of the U.S. Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
Reference is made to Item 17 for the undertakings of the registrant
with respect to indemnification for liabilities arising under the Securities Act of 1933, as amended.
The following exhibits are attached hereto:
Exhibit Number
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Title
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4.1
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Specimen Common Share Certificate (incorporated by reference to Exhibit 4.1 to the Registration Statement on Form F-3 filed by the registrant on January 22, 2018 (File No. 333-222654).
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4.2
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Registration Rights Agreement, dated August 27, 2019 (incorporated by reference to Exhibit 99.2 to the Current Report on Form 6-K furnished on August 28, 2019).
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4.3
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Form of Subscription Agreement for Common Shares (incorporated by reference to Exhibit 99.2 to the Current Report on Form 6-K furnished on August 23, 2019).
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4.4
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Form of Subscription Agreement for Pre-Funded Warrants (incorporated by reference to Exhibit 99.3 to the Current Report on Form 6-K furnished on August 23, 2019).
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4.5
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Agency Agreement, dated August 23, 2019, between Bloom Burton Securities Inc. and ESSA (incorporated by reference to Exhibit 99.4 to the Current Report on Form 6-K furnished on August 23, 2019).
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4.6
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Implementation Agreement, dated May 15, 2019, between ESSA and Realm (incorporated by reference to Exhibit 99.2 to the Current Report on Form 6-K furnished on May 28, 2019).
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5.1
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Opinion of Blake, Cassels & Graydon LLP as to the legality of the common shares being registered hereby.
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23.1
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Consent of Davidson & Company LLP.
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23.2
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Consent of Blake, Cassels & Graydon LLP (included in Exhibit 5.1).
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24.1
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Powers of Attorney (included on page II-6 of this Registration Statement).
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The undersigned registrant hereby undertakes:
(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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To 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 in the aggregate, represent a fundamental change in the information
set forth 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 Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
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provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Exchange
Act that are incorporated by reference in the registration statement;
provided, further, that paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) do not apply if the registration statement is on Form S-1, Form S-3, Form SF-3 or Form F-3, and the
information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated
by reference in the registration statement, or in the case of a registration statement on Form S-3, Form SF-3 or Form F-3, is
contained in a form of prospectus filed pursuant to Rule 424(b) of the U.S. Securities Act that is part of the registration statement;
(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, each such 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.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
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(4)
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To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A.
of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial Statements and information otherwise
required by Section 10(a)(3) of the Securities Act of 1933 need not be furnished, provided, that the registrant includes in
the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (4) and other
information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial
statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need
not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act of 1933 or
Item 8.A. of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Form F-3.
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(5)
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That, for the purpose of determining liability under the Securities Act to any purchaser: (A) Each prospectus filed by
the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and (B) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant
to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities
Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. 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
effective date, 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 effective date.
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The undersigned registrant hereby undertakes that, for the purposes
of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission 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 registrant of expenses incurred or paid by a director, officer or controlling
person of 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 whether such indemnification
by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
EXHIBIT INDEX
Exhibit Number
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|
Description
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4.1
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Specimen Common Share Certificate (incorporated by reference to Exhibit 4.1 to the Registration Statement on Form F-3 filed by the registrant on January 22, 2018 (File No. 333-222654).
|
4.2
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Registration Rights Agreement, dated August 27, 2019 (incorporated by reference to Exhibit 99.2 to the Current Report on Form 6-K furnished on August 28, 2019).
|
4.3
|
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Form of Subscription Agreement for Common Shares (incorporated by reference to Exhibit 99.2 to the Current Report on Form 6-K furnished on August 23, 2019).
|
4.4
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Form of Subscription Agreement for Pre-Funded Warrants (incorporated by reference to Exhibit 99.3 to the Current Report on Form 6-K furnished on August 23, 2019).
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4.5
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Agency Agreement, dated August 23, 2019, between Bloom Burton Securities Inc. and ESSA (incorporated by reference to Exhibit 99.4 to the Current Report on Form 6-K furnished on August 23, 2019).
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4.6
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Implementation Agreement, dated May 15, 2019, between ESSA and Realm (incorporated by reference to Exhibit 99.2 to the Current Report on Form 6-K furnished on May 28, 2019).
|
5.1
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|
Opinion of Blake, Cassels & Graydon LLP as to the legality of the common shares being registered hereby.
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23.1
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Consent of Davidson & Company LLP.
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23.2
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Consent of Blake, Cassels & Graydon LLP (included in Exhibit 5.1).
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24.1
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|
Powers of Attorney (included on page II-6 of this Registration Statement).
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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-3
and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Vancouver, Province of British Columbia, Canada, on October 8, 2019.
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ESSA Pharma Inc.
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By:
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/s/ David Parkinson
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David Parkinson
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Chief Executive Officer
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POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each officer or director
of ESSA Pharma Inc. whose signature appears below constitutes and appoints David Parkinson and David Wood, and each of them, with
full power to act without the other, his or her true and lawful attorneys-in-fact and agents, with full and several power of substitution,
for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments, including post-effective
amendments, and supplements to this Registration Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as they or he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or his or her or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by or on behalf of the following persons in the capacities indicated on October 8, 2019.
Signature
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Title
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|
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/s/ David Parkinson
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President and Chief Executive Officer (Principal Executive Officer)
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David Parkinson
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/s/ David Wood
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Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
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David Wood
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/s/ Richard M. Glickman
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Chairman of the Board
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Richard M. Glickman
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/s/ Franklin Berger
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Director
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Franklin Berger
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|
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/s/ Scott Requadt
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Director
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Scott Requadt
|
|
|
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/s/ Alex Martin
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Director
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Alex Martin
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/s/ Gary Sollis
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Director
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Gary Sollis
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/s/ Otello Stampacchia
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Director
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Otello Stampacchia
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/s/ Marella Thorell
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Director
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Marella Thorell
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/s/ Sandy Zweifach
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Director
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Sandy Zweifach
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AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of the Securities Act, the undersigned
certifies that it is the duly authorized United States representative of ESSA Pharma Inc. and has duly caused this Registration
Statement to be signed on behalf of it by the undersigned, thereunto duly authorized, in the City of Houston, Texas on October
8, 2019.
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ESSA Pharmaceuticals Corp.
(Authorized Representative)
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By:
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/s/ David Parkinson
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David Parkinson
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President and Chief Executive Officer
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