UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. 1)
Under the Securities Exchange Act of 1934
BIONIK LABORATORIES CORP.
(Name of Issuer)
Common Stock, par value $0.001 per Share
(Title of Class of Securities)
09074A 109
(CUSIP Number)
Peter Bloch
483 Bay Street, N105
Toronto, ON M5G2C9
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
June 26, 2015
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o
NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
| CUSIP No. | 09074A 109 |
| 1. |
Names of Reporting Person:
Thiago Caires |
|
| 2. |
Check the Appropriate Box if a Member of a Group (See Instructions) (a) o (b) o
|
|
| 3. |
SEC Use Only
|
|
| 4. |
Source of Funds (See Instructions):
OO |
|
| 5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
|
o |
| 6. |
Citizenship or Place of Organization:
Canada |
|
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7. |
Sole Voting Power:
8,487,215 |
|
8.
|
Shared Voting Power:
None | |
|
9.
|
Sole Dispositive Power:
8,487,215 | |
|
10.
|
Shared Dispositive Power:
None |
| 11. |
Aggregate Amount Beneficially Owned by Each Reporting Person:
8,487,215 |
|
| 12. |
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
|
o |
| 13. |
Percent of Class Represented by Amount in Row (11):
11.89% |
|
| 14. |
Type of Reporting Person (See Instructions):
IN |
Item 1. Security and Issuer
This statement on Schedule 13D (this “Statement”) relates to the issued and outstanding shares of common stock, par value $0.001 per share (the “Company Common Stock”), of Bionik Laboratories Corp., a Delaware corporation (the “Company”). The principal executive offices of the Company are located at 483 Bay Street, N105, Toronto, ON M5G2C9.
Item 2. Identity and Background
This statement is filed pursuant to Rule 13d-1 under the Securities Exchange Act of 1934, as amended, by Thiago Caires. Mr. Caires is a natural person, and his principal occupation is Chief Operating Officer and director of the Company, and has a business address of 483 Bay Street, N105, Toronto, ON M5G 2C9.
Mr. Caires has not, during the past five years, (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors); or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction where as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to federal or state securities laws or finding any violation with respect to such laws.
Mr. Caires is a Canadian citizen.
Item 3. Source and Amount of Funds or Other Consideration
On February 26, 2015, the Company entered into an Investment Agreement (the “Investment Agreement”) with Bionik Acquisition Inc., a company existing under the laws of Canada and the Company’s wholly owned subsidiary (“Acquireco”), and Bionik Laboratories Inc., a company existing under the laws of Canada (“Bionik Canada”), whereby the Company acquired 100 Class 1 common shares of Bionik Canada representing 100% of the outstanding Class 1 common shares of Bionik Canada, taking into account the Exchangeable Share Transaction (as defined below). After giving effect to this transaction, the Company commenced operations through Bionik Canada (the “Acquisition Transaction”).
As a condition of the closing of the Acquisition Transaction, Bionik Canada created a new class of exchangeable shares (the “Exchangeable Shares”), which were issued to the existing common shareholders of Bionik Canada, including Mr. Caires, in exchange for all of their outstanding common shares (“Bionik Canada Cancelled Shares”), all of which were cancelled (the “Exchangeable Share Transaction”). Mr. Caires exchanged and cancelled 100% of his Bionik Canada Cancelled Shares for 7,707,112 Exchangeable Shares in the Exchangeable Share Transaction.
Pursuant to the rights and privileges of the Exchangeable Shares, the holders of such Exchangeable Shares, including Mr. Caires, maintain the right to (i) receive dividends equal to, and paid concurrently with, dividends paid by the Company to the holders of Company Common Stock; (ii) vote, through a Trustee’s voting of the single outstanding share of The Special Voting Preferred Stock of the Company on all matters that the holders of Common Stock are entitled to vote upon; and (iii) receive shares of Common Stock upon the liquidation or insolvency of the Company upon the redemption of such Exchangeable Shares by Acquireco.
Item 4. Purpose of Transaction
Pursuant to the Investment Agreement and the other agreements and transactions contemplated thereby, Mr. Caires became the beneficial owner of 7,707,112 Exchangeable Shares, which are exchangeable into a like amount of shares of the Company Common Stock, effective as of February 26, 2015. Furthermore, as a result of the Investment Agreement and the transactions contemplated thereby, Mr. Caires was appointed as Chief Operating Officer and a director of the Company, and subject to Section 14(f) of the Securities Exchange Act of 1934 and Rule 14F-1 promulgated thereunder, there was a change in a majority of the Board of Directors of the Company.
On June 26, 2015, Mr. Caires, as part of a private transaction between Mr. Caires, Peter Bloch, the Company’s CEO, Michal Prywata, the Company’s COO, and Olivier Archambaud, an existing stockholder of the Company, Messrs. Bloch, Prywata and Caires agreed to transfer to Mr. Archambaud an aggregate of 629,138 of their Exchangeable Shares in return for the settlement, release and termination of an ongoing dispute between them (the “Settlement”). Of such transferred shares, Mr. Caires owned 210,761.
Other than as contemplated by the Acquisition Transaction and the Settlement, Mr. Caires acquired beneficial ownership of the securities of the Company for investment purposes only and with no view to their resale or other distribution of any kind and with no current plans or proposals with respect to the Company or any securities of the Company which relate to or would result in:
(a) The acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer;
(b) An extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries;
(c) A sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries;
(d) Any change in the present board of directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board;
(e) Any material change in the present capitalization or dividend policy of the Issuer;
(f) Any other material change in the issuer’s business or corporate structure including but not limited to, if the Issuer is a registered closed-end investment company, any plans or proposals to make any changes in its investment policy for which a vote is required by section 13 of the Investment Company Act of 1940;
(g) Changes in the Issuer’s charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the issuer by any person;
(h) Causing a class of securities of the issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association;
(i) A class of equity securities of the issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or
(j) Any action similar to any of those enumerated above.
Reference is made to Item 3 herein and hereby is incorporated by reference.
Item 5. Interest in Securities of the Issuer
| (a) |
As of the date of this report, Mr. Caires directly beneficially owns 8,487,215 shares of the Company Common Stock through direct ownership of the Exchangeable Shares, which number of shares represents approximately 11.89% of the outstanding Common Stock based on 70,373,250 shares of outstanding Company Common Stock (or Exchangeable Shares exchangeable for Company Common Stock) as reported in the Company’s Form S-1 (Registration No. 333-204491) as filed with the Securities and Exchange Commission on May 29, 2015. Includes options granted to Mr. Caires to purchase an aggregate of 990,864 Exchangeable Shares, which options are currently exercisable, and does not include a commitment of the Company to issue to Mr. Caires an additional 160,000 Exchangeable Shares.
The percentage of ownership reported in this Item 5 was calculated in accordance with Rule 13d-3(d)(1)(i) promulgated under the Securities Exchange Act of 1934, as amended. |
| (b) | Mr. Caires has the sole power to vote or direct the vote, and to dispose or direct the disposition, of 8,487,215 shares of Company Common Stock or Exchangeable Shares exchangeable for Company Common Stock, and shares underlying options. |
| (c) | Except as described herein, the Reporting Person has not effected any transaction in Company Common Stock in the past 60 days. |
| (d) and (e) | Not applicable |
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
Reference is made to Items 3 and 4 herein and hereby is incorporated by reference.
Item 7. Material to be Filed as Exhibits
| Exhibit 1: | Certificate of Designation of Preferences, Rights and Limitations of Special Voting Preferred Stock of Bionik Laboratories Corp. (1) |
| Exhibit 2: | Schedule A to Articles of Amendment of Bionik Laboratories Inc. relating to the Exchangeable Shares of Bionik Laboratories Inc. (2) |
| Exhibit 3: | Investment Agreement (3) |
| Exhibit 4: | Settlement, Release and Termination |
__________
| (1) | Incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with the SEC on March 3, 2015. |
| (2) | Incorporated by reference to Exhibit 4.2 of the Company’s Current Report on Form 8-K filed with the SEC on March 3, 2015. |
| (3) | Incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on March 3, 2015. |
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.
Date: June 26, 2015
| By: | /s/ Thiago Caires | |
| Name: | Thiago Caires |
Exhibit 4
SETTLEMENT, RELEASE AND TERMINATION
WHEREAS Mr. Olivier Archambaud (“OA”) is a shareholder and former director of Bionik Laboratories Inc. (“Bionik).
AND WHEREAS Mr. Peter Bloch (“Bloch”), Michal Prywata (“Prywata”) and Thiago Caires (“Caires”) (collectively the “Shareholders” and each a “Shareholder”) are directors and officers of Bionik.
AND WHEREAS the Shareholders, Bionik and OA wish to enter into this settlement, release and termination agreement in relation to a dispute between the Shareholders and OA, which dispute could effect Bionik, with respect to an assertion made by OA that he is entitled to one or more of cash, Bionik shares and/or other securities of Bionik from one or more of the Shareholders (the “Claim”).
AND WHEREAS each of the undersigned wish to settle any and all claims and disputes with respect to the Claim.
NOW THEREFORE, in consideration for the payments and/or covenants of the releases provided herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged:
| 1. | Each Shareholder and Bionik agree to perform the covenants to be performed by them in this Agreement, including for greater certainty those in Schedule “A” hereto (the “Shareholder Covenants”). |
| 2. | OA agrees to perform the covenants to be performed by him in this Agreement, including for greater certainty those in Schedule “A” hereto (the “OA Covenants”). |
| 3. | Each Shareholder, on behalf of himself and his agents, servants, attorneys, heirs, executors, representatives, successors and assigns (collectively the “Shareholder Releasors” and each a “Shareholder Releasor”), does hereby irrevocably and unconditionally remise, release and forever discharge OA and his agents, servants, attorneys, present and former employees, officers and directors, controlling persons, subsidiaries, partners, affiliates, shareholders, heirs, executors, representatives, successors and assigns (collectively, the “OA Releasees”), of and from any and all actions, causes of action (whether direct or derivative), suits, proceedings, deeds, debts, dues, duties, accounts, bonds, covenants (whether express or implied), contracts, claims, demands, damages, sums and sums of money, promises, grievances, executions, judgments and liabilities whatsoever, whether contingent or otherwise, existing as of the date hereof, both in law and in equity, whether known or unknown, which the Shareholder Releasor ever had, now has or may have against the OA Releasees, other than relating to, arising out of, or concerning in any way (i) any rights a Shareholder Releasor has or may have after the date of this Agreement as a holder of Bionik shares or other securities in Bionik or any successor legal entity and/or (ii) the OA Covenants (each a “Shareholder Claim” and collectively the “Shareholder Claims”). |
| 4. | Bionik, on behalf of itself and its agents, servants, attorneys, present and former employees, officers and directors, subsidiaries, partners, affiliates, successors and assigns (collectively the “Corporate Releasors” and each a “Corporate Releasor”), does hereby irrevocably and unconditionally remise, release and forever discharge the OA Releasees of and from any and all actions, causes of action (whether direct or derivative), suits, proceedings, deeds, debts, dues, duties, accounts, bonds, covenants (whether express or implied), contracts, claims, demands, damages, sums and sums of money, promises, grievances, executions, judgments and liabilities whatsoever, whether contingent or otherwise, existing as of the date hereof, both in law and in equity, whether known or unknown, which the Corporate Releasor ever had, now has or may have against the OA Releasees, other than relating to, arising out of, or concerning in any way (i) a breach by any OA Releasee of the terms of the Third Amended and Restated Shareholders’ Agreement dated August 22, 2012, as amended and/or (ii) a breach by OA of any fiduciary duties owed by him in connection with his services as a director of Bionik and/or (iii) the OA Covenants (the “Corporate Claims”). |
| 5. | OA, on behalf of himself and his agents, servants, attorneys, heirs, executors, representatives, successors and assigns (collectively the “OA Releasors”, and each an “OA Releasor”), does hereby irrevocably and unconditionally remise, release and forever discharge Bionik, US Bionik, each Shareholder and their respective agents, servants, attorneys, present and former employees, officers and directors, controlling persons, subsidiaries, partners, affiliates, shareholders, heirs, executors, representatives, successors and assigns (collectively, the “Shareholder Releasees”), of and from any and all actions, causes of action (whether direct or derivative), suits, proceedings, deeds, debts, dues, duties, accounts, bonds, covenants (whether express or implied), contracts, claims, demands, damages, sums and sums of money, promises, grievances, executions, judgments and liabilities whatsoever, whether contingent or otherwise, existing as of the date hereof, both in law and in equity, whether known or unknown, which the OA Releasor ever had, now has or may have against the Shareholder Releasees, other than relating to, arising out of, or concerning in any way (i) any rights OA has or may have after the date of this Agreement as a holder of his shares or other securities in Bionik or any successor legal entity, and/or (iii) the Shareholder Covenants (the “OA Claims”). |
| 6. | Representations and Warranties |
Each of the Shareholders hereby severally and not jointly and not jointly and severally represents and warrants to OA that each of the below statements in this Section 6 are true and correct as of the date of this Agreement, and each of the Shareholders acknowledges that OA is relying on such representations and warranties in connection with the completion of the transactions contemplated by this Agreement:
| (i) | All shares, securities, rights, and other property transferred or to be transferred by any Shareholder pursuant to this Agreement are or, as the case may be, will be, at the appropriate time, free and clear of all mortgages, encumbrances and charges, and each Shareholder is entitled at law and in equity to transfer and convey to OA clear title to such shares, securities, rights, and other property owned by such Shareholder; and |
| - 2 - |
| (ii) | All necessary corporate actions have been taken to authorize the execution, delivery and performance of this Agreement in accordance with Bionik’s articles, by-laws, and other governing documents; and |
| (iii) | Each Shareholder is, as of the date of this Agreement, a resident of Canada for purposes of the Income Tax Act (Canada). |
These representations and warranties will survive the date of this Agreement and will continue in full force indefinitely.
| 7. | OA represents and warrants to and for the benefit of the Shareholder Releasees that he has not assigned to any person, partnership, body corporate or other entity any of the OA Claims which OA releases by this Agreement. |
| 8. | OA covenants and agrees that he shall not join, assist, aid or act in concert in any manner whatsoever with any other person, partnership, body corporate or other entity in the making or bringing of any OA Claim in any manner whatsoever against any of the Shareholder Releasees arising out of or in relation to the OA Claims herein released. |
| 9. | OA covenants and agrees that he shall not make any OA Claim or commence or maintain any action or proceeding in any manner whatsoever arising out of or in relation to the OA Claims herein released against any person, partnership, body corporate or other entity that might claim contribution or indemnity or relief over against the Shareholder Releasees. |
| 10. | OA agrees and undertakes not to acquiesce or participate in, encourage or instigate, directly or indirectly, any OA Claims by other persons or entities against any Shareholder Releasee in connection with any OA Claims which an OA Releasor releases by this Agreement. |
| 11. | OA acknowledges and agrees that this Agreement shall be binding upon him and his heirs, executors, legal personal representatives, administrators, successors and assigns and shall enure to the benefit of the Shareholder Releasees and the Corporate Releasor and, as applicable, their respective heirs, executors, legal personal representatives, administrators, successors and assigns. |
| 12. | Each Shareholder Releasor and Corporate Releasor (each a “Bionik Releasor” and collectively the “Bionik Releasors”) represents and warrants to and for the benefit of the OA Releasees that it has not assigned to any person, partnership, body corporate or other entity any of the Shareholder Claims or Corporate Claims, as applicable the Bionik Releasor releases by this Agreement. |
| 13. | Each Bionik Releasor covenants and agrees that it shall not join, assist, aid or act in concert in any manner whatsoever with any other person, partnership, body corporate or other entity in the making or bringing of any Shareholder Claim or Corporate Claim, as applicable, in any manner whatsoever against any of the OA Releasees arising out of or in relation to the Shareholder Claims or Corporate Claims, as applicable, herein released by the Bionik Releasor. |
| - 3 - |
| 14. | Each Bionik Releasor covenants and agrees that it shall not make any Shareholder Claim or Corporate Claim, as applicable, or commence or maintain any action or proceeding in any manner whatsoever arising out of or in relation to the Shareholder Claims or Corporate Claims, as applicable, herein released by the Bionik Releasor against any person, partnership, body corporate or other entity that might claim contribution or indemnity or relief over against the OA Releasees. |
| 15. | Each Bionik Releasor agrees and undertakes not to acquiesce or participate in, encourage or instigate, directly or indirectly, any Shareholder Claims or Corporate Claims, as applicable, by other persons or entities against any OA Releasee in connection with any Shareholder Claims or Corporate Claims, as applicable, which the Bionik Releasor releases by this Agreement. |
| 16. | Each Bionik Releasor acknowledges and agrees that this Agreement shall be binding upon it and its heirs, executors, legal personal representatives, administrators, successors and assigns as applicable, and shall enure to the benefit of the OA Releasees and, as applicable, their respective heirs, executors, legal personal representatives, administrators, successors and assigns. |
| 17. | The representations, warranties, covenants and obligations of each Shareholder and Bionik hereunder are several and not joint and not joint and several. |
| 18. | In the event that any provision or portion of any provision of this Agreement is held to be invalid, illegal, or unenforceable under any applicable law, such invalidity, illegality or unenforceability shall not affect the validity and enforceability of the remainder of the Agreement and shall not affect the validity and enforceability of this Agreement as a whole or in any other jurisdiction or against any other parties other than the party in respect of whom that provision or portion of any provision of this Agreement was held to be invalid, illegal or unenforceable. |
| 19. | This Agreement may be transmitted by e-mail or facsimile, and where so transmitted, the signature(s) hereon shall be binding as if originals. This Agreement shall be construed in accordance with and governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. |
| 20. | The parties hereby irrevocably and unconditionally attorn, consent to and submit to the exclusive jurisdiction of the courts of the Province of Ontario for any actions, suits or proceedings arising out of or relating to this Agreement or the matters contemplated hereby (and agree not to commence any action, suit or proceeding relating thereto except in such courts) and further agree that service of any process, summons, notice or document by delivery in the manner set forth in Section 22 shall be effective service of process for any action, suit or proceeding brought against either party in such court. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the matters contemplated hereby in the courts of the Province of Ontario and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding so brought has been brought in an inconvenient forum. |
| - 4 - |
| 21. | OA on behalf of himself and the OA Releasees hereby irrevocably designates Lette LLP (in such capacity, the “Process Agent”), with an office at 20 Queen Street West, Suite 3300, Box 33, Toronto ON M5H 3R3, Canada, as its designee, appointee and agent to receive, for and on its behalf service of process in such jurisdiction in any legal action or proceedings with respect to this Agreement or the transactions contemplated hereby, and such service shall be deemed complete upon delivery thereof to the Process Agent. OA shall take all such action as may be necessary to continue said appointment in full force and effect or to appoint another agent so that OA will at all times have an agent for service of process for the above purposes at the above noted address. |
Nothing herein shall affect the right of any party to serve process in any manner permitted by applicable law. OA expressly acknowledges that the foregoing waiver is intended to be irrevocable under all applicable laws.
| 22. | Notices |
Except as provided in Sections 21 with respect to service of process, all notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or made as of the date delivered if delivered personally or the date sent if sent by telecopier or sent by prepaid overnight courier to the parties at the following addresses (or at such other addresses as shall be specified by the parties by like notice):
| (a) | if to the Shareholders or Bionik: |
c/o Bionik Laboratories
483 Bay Street, N105
Toronto, Ontario M5G 2C9
| Attention: | Chief Executive Officer |
| Email: | pb@bioniklabs.com |
with a copy to (which shall not constitute notice):
Fasken Martineau DuMoulin LLP
333 Bay Street, Suite 2400
Toronto, Ontario M5H 2T6
| Attention: | Krisztian Toth |
| Email: | ktoth@fasken.com |
| (b) | if to OA: |
c/o Lette LLP
20 Queen Street West, Suite 3300
Toronto, Ontario M5H 3R3
| Attention: | Bernard Lette |
| Email: | blette@lette.ca |
| - 5 - |
| 23. | Each of the parties hereto mutually undertake with each other that it will not, at any time after the date of this Agreement, without the prior written consent of the other party, divulge or communicate to any person other than its respective directors, officers, employees, shareholders and advisers who, in the disclosing party's reasonable opinion, need to know the same for the performance of this Agreement any information relating to the Shareholder Claims, the Corporate Claims, the OA Claims, or the terms of this Agreement (the “Confidential Information”); provided, however, that nothing in this section shall preclude a party from disclosing Confidential Information of the other party if (a)the Confidential Information is available to the public or in the public domain at the time of such disclosure, without breach of this Agreement by the disclosing party; or (b) disclosure is required to be made by applicable law or by any stock exchange or quotation system on which the securities of Bionik or its parent, Bionik Laboratories Corp. (“US Bionik”) disclosure is made to a court which is determining the rights of the parties under this Agreement or pursuant to a court order; provided further that, in respect of any disclosure pursuant to subsection (b), the disclosing party first gives written notice of such disclosure to the other party, affords a reasonable opportunity to the other party to seek to protect the confidentiality of the Confidential Information required to be disclosed, and takes all reasonable steps to restrict such disclosure to that part of the Confidential Information which it is required to disclose and protect the confidentiality of the Confidential Information to the extent possible and legally permitted. |
| 24. | This Agreement, including Schedule “A” hereto, constitutes the entire agreement and supersedes all other prior agreements and understandings, both written and oral, between the parties, with respect to the subject matter hereof. The parties shall be entitled to rely upon delivery of an executed facsimile copy of the Agreement or via email in PDF format, and such facsimile copy or email in PDF format shall be legally effective to create a valid and binding agreement among the parties. |
| 25. | Time shall be the essence of this Agreement. |
| 26. | Each party expressly acknowledges that it would be extremely difficult to measure the damages that might result from any breach of any of the covenants of any other party contained herein and that any breach by a party (such party a “Breaching Party”) of any of the covenants given by the Breaching Party herein might result in irreparable injury to the other parties (each a “Compliant Party”) for which money damages could not adequately compensate. If a breach of any of the covenants of a Breaching Party occurs, any Compliant Party shall be entitled, in addition to all other rights and remedies that any Compliant Party may have at law or in equity, to have an injunction issued by any competent court enjoining and restraining the Breaching Party from continuing such breach. The existence of any claim or cause of any action that the Breaching Party may have against any Compliant Party shall not constitute a defence or bar to the enforcement by the Compliant Party of the covenants of the Breaching Party under this Agreement. If a Compliant Party must resort to litigation to enforce any of the covenants of the Breaching Party that have a fixed term, then such term shall be extended for a period of time equal to the period during which a breach of such covenant was occurring, beginning on the last day of the original fixed term of such covenant. |
| - 6 - |
OA acknowledges and agrees that in the event he or an OA Releasor breaches any provision of this Agreement he shall upon notice from any Shareholder transfer and gift back to each Shareholder the exchangeable shares (or if applicable the common shares of US Bionik the exchangeable shares have been exchanged for) transferred by the Shareholders to OA pursuant to Schedule “A”. If such shares have been disposed of by OA he shall promptly purchase in the market and deliver to each Shareholder that number of common shares of US Bionik that is equal to the number of exchangeable shares initially transferred and gifted by each Shareholder as detailed in Schedule “A”. OA acknowledges and agrees that the foregoing is a genuine pre-estimate of the damages which each Shareholder would suffer or incur as a result of the event giving rise to such damages and resultant breach and is not a penalty. OA irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. For greater certainty, the parties agree that nothing contained in this Section 26 and no payment by re-transfer or gift of shares by OA to the Shareholders shall relieve or have the effect of relieving OA in any way from liability for damages incurred or suffered by any Shareholders as a result of a breach of this Agreement by OA or any OA Releasor. Nothing herein shall preclude a Shareholder from seeking injunctive relief to restrain any breach or threatened breach of the covenants or agreements set forth in this Agreement or otherwise to obtain specific performance of any such covenants or agreements, without the necessity of posting bond or security in connection therewith.
| 27. | Each party acknowledges and agrees that: |
| (a) | the covenants in this Agreement are reasonable and are supported by good and adequate consideration and are necessary to protect the interests of each party hereto; |
| (b) | OA has received a substantial financial benefit as a result of the covenants of the Shareholders provided in this Agreement; |
| (c) | the covenants of OA contained in this Agreement were a material inducement for the other parties to enter into this Agreement; and |
| (d) | the covenants of the Shareholders contained in this Agreement were a material inducement for the other parties to enter into this Agreement. |
[SIGNATURE PAGE FOLLOWS]
| - 7 - |
This Release is dated the _____ day of March, 2015.
| BIONIK LABORATORIES INC. | ||
| By: | /s/ Peter Bloch | |
| Name: Peter Bloch | ||
| Title: CEO | ||
| I have authority to bind the Corporation. | ||
| ) | ||
| ) | ||
| /s/ | ) | /s/ Peter Bloch |
| Witness | Name: Peter Bloch | |
| ) | ||
| ) | ||
| ) |
| ) | ||
| ) | ||
| /s/ | ) | /s/ Michal Prywata |
| Witness | Name: Michal Prywata | |
| ) | ||
| ) | ||
| ) |
| ) | ||
| ) | ||
| /s/ | ) | /s/ Thiago Caires |
| Witness | Name: Thiago Caires | |
| ) | ||
| ) | ||
| ) | ||
| ) | ||
| ) | ||
| /s/ | ) | /s/ Olivier Archambaud |
| Witness | Name: Olivier Archambaud | |
| ) | ||
| ) | ||
| ) |
| - 8 - |
Schedule "A"
| 1. | Covenants of the Shareholders |
| 1.1 | Gift of Shares |
Bloch shall gift 207,620 exchangeable shares of Bionik (which shall be exchangeable for an equivalent number of US Bionik common stock) to OA promptly following the compliance with OA of its obligations in Section 2.2 below.
Prywata shall gift 210,766 exchangeable shares of Bionik (which shall be exchangeable for an equivalent number of US Bionik common stock) to OA promptly following to OA promptly following the compliance with OA of its obligations in Section 2.2 below and in Section 2.3 below.
Caires shall gift 210,766 exchangeable shares of Bionik (which shall be exchangeable for an equivalent number of US Bionik common stock) to OA promptly following to OA promptly following to OA promptly following the compliance with OA of its obligations in Section 2.2 below and in Section 2.3 below.
Each Shareholder hereby agrees to execute and deliver all such additional documents and do all other acts which are necessary to effect and evidence the transfer of the Settlement Shares to OA, free and clear of all encumbrances, and to otherwise complete the transactions contemplated by this Agreement.
| 1.2 | Non Disparagement |
Subject to Section 3 below, for a period of two years following the date of this Settlement, Release and Termination, each Shareholder and Bionik shall not take any action which directly or indirectly would, or could reasonably be expected to, disparage or otherwise damage the reputation of OA as they relate to the Shareholder Claims or Corporate Claims, as applicable, released pursuant to this Agreement.
| 1.3 | Additional Actions |
Each of Bloch, Prywata and Caires agrees to execute and deliver all such additional documents and do all other acts which are necessary to complete the transactions contemplated by this Agreement.
| 2. | Covenants of OA |
| 2.1 | Non-Disparagement |
Subject to Section 3 below, for a period of two years following the date of this Settlement, Release and Termination, OA shall not take any action which directly or indirectly would, or could reasonably be expected to, disparage or otherwise damage the reputation of US Bionik, Bionik or the Shareholders as they relate to the OA Claims released pursuant to this Agreement.
| - 9 - |
| 2.2 | No Use of Bionik Name |
OA shall not directly or indirectly, and shall not permit any OA Releasor to directly or indirectly use the name “Bionik” or any variation or combination thereof in connection with any business or activity carried on by any of them and OA shall and shall cause each OA Releasor to discontinue further use of the such names and trademarks and any related web domains and email addresses.
| 2.3 | Tax Matters |
Prior to Bloch, Prywata and Caires transferring any exchangeable shares to OA, they shall send to OA a statement, prepared by the auditor of Bionik, as to the tax which will be payable by Bloch, Prywata and Caires as a result of the transfer and withholding tax obligations, if any, on Bloch, Prywata and Caires in connection with such transfer (collectively the “Tax Liability”) and OA shall, as a condition to such transfer, pay to Bloch, Prywata and Caires in cash an amount necessary to satisfy in full all the Tax Liability.
| 2.4 | Outstanding Amounts |
Prior to Prywata and Caires transferring any exchangeable shares, OA shall pay to each of them $12,500 in cash on account of monies owing by OA but not yet paid by OA, which amounts to represent the outstanding portion of the purchase price of Bionik common shares previously purchased by OA from Prywata and Caires.
| 2.5 | Additional Actions |
OA hereby agrees to execute and deliver all such additional documents and do all other acts which are necessary or desirable to complete the transactions contemplated by this Agreement.
| 3. | Lawful Pursuits |
Sub-sections 1.2 and 2.1 do not prevent the parties from engaging in lawful pursuits to enforce their entitlements under this Agreement. If a party is a Breaching Party, the Compliant Party to whom the Breaching Party has not performed its obligations will be relieved from performing its obligations under this Agreement as they relate to the Breaching Party.
| - 10 - |