May 25, 2023
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Delaware (State or other jurisdiction of incorporation or organization) | |
| 36-47877690 (I.R.S. Employer Identification Number) | |
100
944-6100
Philippe Deschamps
President and
100
944-6100
Darren DeStefano
Cooleyto
One Freedom Square
Reston Town Center
11951 Freedom Drive
Reston, VA 20190-5656
(703) 456-8034
From time to time after the effective date of this Registration Statement
(
public:
From time to time after this Registration Statement becomes effective.
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Large accelerated filer | | | ☐ | | | Accelerated filer | | | ☐ | |
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Non-accelerated filer | | ☒ | | | Smaller reporting company | | | ☒ | |
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities To Be Registered | Amount to be Registered | Proposed Maximum Offering Price Per Share | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee (1) | ||||
Class A Common Stock, no par value per share | (2) | (3) | (3) | — | ||||
Debt Securities | (2) | (3) | (3) | — | ||||
Warrants | (2) | (3) | (3) | — | ||||
Total | (2) | $100,000,000 | $11,590 | |||||
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| | | | | Emerging growth company | | | ☐ | |
Class A
We are an “emerging growth company” as that term is used in the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”) and, as such, have elected to comply with certain reduced public company reporting requirements for this prospectus and future filings.
Our Class Asupplement
applicable prospectus supplement.
You should read this prospectus and any prospectus supplement, together with additional information described under the headings “Incorporation of Certain Information by Reference” and “Where You Can Find More Information,” carefully before you invest in any of our securities.
2023.
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You should not assume that thedo so.
independent industry publications and other publicly available information. Although we believe that these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified this information. Although we are not aware of any misstatements regarding the market and industry data presented in this prospectus and/or the documents incorporated herein by reference, these estimates involve risks and uncertainties and are subject to change based on various factors, including those discussed under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus. Accordingly, investors should not place undue reliance on this information.
Except as otherwise indicated herein or as the context otherwise requires, references
Companysubsidiaries.
On June 13, 2014,provide treatment of gait deficit and chronic balance deficit. PoNS has marketing clearance in the U.S. for use in the U.S. as a short-term treatment of gait deficit due to mild-to-moderate symptoms for multiple sclerosis (“MS”) and is to be used as an adjunct to a supervised therapeutic exercise program in patients 22 years of age and over by prescription only. We began accepting prescriptions for PoNS in the U.S. in March 2022, and commercial sales of PoNS commenced in April 2022. PoNS is authorized for sale in Canada for three indications: (i) for use as a short term treatment (14 weeks) of chronic balance deficit due to mild-to-moderate traumatic brain injury, or mmTBI, and is to be used in conjunction with physical therapy, or PoNS TherapyTM; (ii) for use as a short term treatment (14 weeks) of gait deficit due to mild and moderate symptoms from MS and it is to be used in conjunction with physical therapy; and (iii) as a short term treatment (14 weeks) of gait deficit due to mild and moderate symptoms from stroke, to be used in conjunction with physical therapy. It has been commercially available in Canada since March 2019. PoNS is authorized for sale as a Class IIa medical device in Australia and we acquiredhave been seeking a 100% interestbusiness partner to commercialize and distribute PoNS in Australia.
NHC is a Delaware corporation, incorporated on January 22, 2013, which is involved in the medical device industry. In January 2013, NHCHMI entered into an exclusive rights agreement whereby Advanced Neuro-Rehabilitation LLC, (“ANR”)or ANR, granted NHC exclusive worldwide rights to ANR’s trade secrets, knowhow and patent pending technology for a non-invasive means for delivering neurostimulation through the oral cavity, in exchange for a 50% equity investment in NHC and a 4% royalty of NHC’s revenue collected from (a) the saleU.S. sales of products covered by any claim of the patent pending rights to end users and (b) services related to the therapy or use of such products in therapy services.
Our Mission
Our mission is to develop, licenseinto NHC and acquire non-invasive treatments designed to help patients affected by neurological symptoms caused by disease or trauma. The brain’s ability to reorganize its operation in response to new information sources, new functional needs, or new communication pathways is referred to as neuroplasticity. Neuroplasticity is a process underlying all cerebral learning, training, and rehabilitation. Neuromodulation is the use of various external stimulation to intentionally change and regulate the internal electrochemical environment of the brain.
Applying the principles of neuroplasticity, our portable neuromodulation stimulator (“PoNS™”) device is designed to induce Cranial Nerve Non Invasive Neuromodulation (CNNIN) that utilizes the brain’s innate ability to achieve neuroplastic change to aid persons with neurological, cognitive, sensory, and motor disorders when combined with the rehabilitation process. The PoNS™ device has not yet been approved for commercialization.
Business Uncertainties and Going Concern Risk
To date we have not generated any revenue from the sales of products or services. There are a number of conditions that we must satisfy before we will be able to generate revenue, including but not limited to successful completion of the Traumatic Brain Injury (TBI) or Multiple Sclerosis (MS) clinical studies, U.S. Food and Drug Administration (“FDA”) approval, CE Mark, Health Canada or TGA in Australia clearance of the PoNS™ device for balance disorder associated with TBI, and the manufacture of a commercially-viable version of the PoNS™ device and demonstration of safety and effectiveness sufficient to generate commercial orders by customers for our product, if approved for commercialization. In addition, given the importance of the U.S. Army to our early commercial plans, if the U.S. Army were to eventually decide not to purchase our product, we would need to replace those salescommon shares in the civilian market which will lower our early commercialization forecast. To date, we have not achieved anycapital of these conditions, and the
successful achievement of such conditions will require significant expenditures. Because we have not generated any revenues, we are significantly dependent on funding from outside investors. There is no guarantee that such funding will be available at all orNHC were cancelled in sufficient amounts to satisfy our required expenditures. Furthermore, even if we were able to raise sufficient capital to manufacture a commercially-viable version of the PoNS™ device and to receive FDA, CE Mark, Health Canada or TGA in Australia clearance, we do not currently have any contract or other arrangement to sell the PoNS™ device. Accordingly, we cannot assure you that we will ever be able to generate any revenue from the sales of products or services.
There is substantial doubt that we can continue as an on-going businessconsideration for the next twelve months unless we obtain additional capital to payissuance of an aggregate of 7,060,016 shares of our expenditures. As discussed in more detail below, we recently raised additional capital in an unregistered offering of Class A Common Stock to the shareholders of NHC. NHC, which changed its name to Helius Medical, Inc in December 2018, is now our wholly-owned subsidiary. Prior to the transaction we had no active business.
federal laws of Canada, which acquired Heuro Canada, Inc. from Health Tech Connex Inc. on October 30, 2019.
Implications of Being an Emerging Growth Company
We qualify as an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. For so long as we remain an emerging growth company, we are permitted and intend to rely on exemptions from specified disclosure requirements that are applicable to other public companies that are not emerging growth companies. These exemptions include:
We may take advantage of these provisions until March 31, 2021 or such earlier time that we no longer qualify as an emerging growth company. We would cease to be an emerging growth company if we have more than $1.0 billion in annual revenues, have more than $700 million in market value of our capital stock held bynon-affiliates or issue more than $1.0 billion ofnon-convertible debt over athree-year period. We may choose to take advantage of some, but not all, of the available exemptions. We have taken advantage of some reduced reporting burdens in this prospectus and the documents incorporated by reference into this prospectus. Accordingly, the information contained herein may be different than the information you receive from other public companies in which you hold stock.
In addition, the JOBS Act provides that an emerging growth company can take advantage of an extended transition period for complying with new or revised accounting standards. This provision allows an emerging growth company to delay the adoption of some accounting standards until those standards would otherwise apply to private companies. We have irrevocably elected not to avail ourselves of this exemption from new or revised accounting standards and, therefore, we will be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies.
The Securities We May Offer
offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
This prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
be provided to you) related to the series of preferred stock being offered, as well as the complete certificate of designation that contains the terms of the applicable series of preferred stock.Class A Common Stockpreferred stock from time to time. The holderstime, in one or more series. Under our Certificate of Incorporation, our board of directors has the authority, without further action by the stockholders, to issue up to 10,000,000 shares of preferred stock, par value $0.001 per share. You should refer to our Certificate of Incorporation and our Amended and Restated Bylaws, both of which are included as exhibits to the registration statement of which this prospectus is a part.Stock are entitled to one vote for each share heldStock. Holders of record on all matters submitted to a voteshares of shareholders and do not have cumulative voting rights. The holders of Class A Common Stock arepreferred stock may be entitled to receive dividends, if any, as may be declared from time to time by our board of directors out of legally available funds. Ina preference payment in the event of ourany liquidation, dissolution or winding up,winding-up of our company before any payment is made to the holders of shares of our Class A Common Stock will be entitledStock. In some circumstances, the issuance of shares of preferred stock may render more difficult or tend to share ratably indiscourage a merger, tender offer or proxy contest, the net assets legally available for distribution to shareholders after the paymentassumption of allcontrol by a holder of a large block of our debtssecurities or the removal of incumbent management. Upon the affirmative vote of our board of directors, without stockholder approval, we may issue shares of preferred stock with voting and other liabilities. Holdersconversion rights which could adversely affect the holders of shares of our Class A Common Stock have no preemptive, conversion or subscription rights,Stock.there are no redemption or sinking fund provisionswill file a copy of the certificate of designation establishing the terms of the preferred stock with the SEC. We urge you to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to our Class A Common Stock.Securities.Securities. We may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. The senior debt securities will rank equally with any other unsecured and unsubordinated debt. The subordinated debt securities will be subordinate and junior in right of payment, to the extent and in the manner described in the instrument governing the debt, to all of our senior indebtedness. Convertible debt securities will be convertible into or exchangeable for our Class A Common Stock. Conversion may be mandatory or at the holder’s option and would be at prescribed conversion rates.FormsA form of indentures haveindenture has been filed as exhibitsan exhibit to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
Warrants. We3
We will evidence eachSEC, the form of warrant or the warrant agreement and warrant certificate, as applicable, that contain the terms of the particular series of warrants we are offering, and any supplemental agreements, before the issuance of such warrants.
This prospectus and the incorporated documents also contain forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including the risks mentioned elsewhere in this prospectus. You should also consider the risks, uncertainties and assumptions discussed under the heading “Risk Factors” included in our most recent Annual Report on Form 10-K, which is on file with the SEC and incorporated herein by reference, and which may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future.
Theforward-looking statements in this prospectus include, among other things, statements about:
We may not actually achieve the plans, intentions or expectations disclosed in ourforward-looking statements. We operate in a very competitive and rapidly changing environment. Itit is not possible for our managementus to predict all risks, nor canwhich factors will arise. In addition, we cannot assess the impact of all factorseach factor on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in anyforward-looking statements we may make. Actual results or events could differ materially from the plans, intentions and expectations disclosed in theforward-looking statements we make, and accordingly you statements.
You should read this prospectus, the applicable prospectus supplement, any free writing prospectus, the documents incorporatedCertain Information by reference herein and the documents that we have filed as exhibits to the registration statement of which this prospectus is a part completelyReference,” and with the understanding that our actual future results may be materially differentdiffer from what we expect. We qualify all of theforward-looking statements in this prospectus and the documents incorporated by reference herein by these cautionary statements.
becomes available.
This prospectus includes statistical and other industry and market data that we obtained from industry publications and research, surveys and studies conducted by third parties. All of the market data used in, or incorporated by reference in, this prospectus involves a number of assumptions and limitations.
The following description of our capital stock is intended as a summary only. We refer you to our Articles
Our authorized capital stock consists of an unlimited number of150,000,000 shares of Class A Common Stock noand 10,000,000 shares of preferred stock, par value. value $0.001 per share, all of which shares of preferred stock are currently undesignated. Our board of directors may establish the rights and preferences of the preferred stock from time to time.
is entitled to one vote for each share on all matters submitted to a vote of the stockholders, including the election of directors. Our stockholders do not have cumulative voting rights. Because of this, the holders of a majority of the shares of Class A Common Stock
Voting
Holders entitled to vote in any election of directors can elect all of the directors standing for election, if they should so choose.
Dividends
Holders of our Class A Common Stock shall, in the absolute discretion of the Board, be entitled to receive dividends as and when declaredtime by the board of directors out of monies of the Company properly applicable to the payment of dividends. We have never declared or paid any cash dividends on our Class A Common Stock. We currently intend to retain future earnings, if any, to finance the expansion of our business. As a result, we do not anticipate paying any cash dividends in the foreseeable future.
legally available funds.
In
future.
Compensationprivileges of the shares of each wholly unissued series and any qualifications, limitations or
Stock Options
As of December 20, 2016, options to purchase 9,970,00011,122,299 shares of our Class A Common Stock with a weighted average exercise price of CAD$1.21$1.70 per share, were outstanding.share. Many of these options are subject to vesting that generally occurs over a period of up to five years following the date of grant.
Amended and Restated Bylaws
Though not now, wedirectors and its policies and to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to reduce our vulnerability to hostile takeovers and to discourage certain tactics that may be orused in the future we may become subject to Wyoming’s control share law. The law focuses on the acquisition of a “controlling interest” which means the ownership of outstanding voting shares sufficient, but for the control share law, to enable the acquiring person to exercise the following proportions of the voting power of the corporation in the election of directors: (i) one-fifth or more but less than one-third, (ii) one-third or more but less than a majority, or (iii) a majority or more. The ability to exerciseproxy fights. However, such voting power may be direct or indirect, as well as individual or in association with others. Theprovisions could have the effect of the control share law is that the acquiring person,discouraging others from making tender offers for our shares and those acting in association with it, obtains only such voting rights in the control shares as are conferred by a resolution of the shareholders of the corporation, approved at a special or annual meeting of shareholders. The control share law contemplates that voting rights will be considered only once by the other shareholders. Thus, there is no authority to strip voting rights from the control shares of an acquiring person once those rights have been approved. If the shareholders do not grant voting rights to the control shares acquired by an acquiring person, those shares do not become permanent non-voting shares. The acquiring person is free to sell its shares to others. If the buyers of those shares themselves do not acquire a controlling interest, their shares do not become governed by the control share law. If control shares are accorded full voting rights and the acquiring person has acquired control shares with a majority or more of the voting power, any shareholder of record, other than an acquiring person, who has not voted in favor of approval of voting rights is entitled to demand fair value for such shareholder’s shares.
Wyoming’s control share law may have the effect of delaying changes in our control or management. As a consequence, these provisions may also inhibit fluctuations in the market price of our stock that could result from actual or rumored takeover attempts. We believe that the benefits of these provisions, including increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure our company, outweigh the disadvantages of discouraging takeoverstakeover proposals, because negotiation of takeover proposals could result in an improvement of their terms.
beneficial owner, directly or indirectly, of fifteen percent or more of the voting power of the then outstanding shares of the corporation. The definition of the term “business combination” is sufficiently broad to cover virtually any kind of transaction that would allow a potential acquirer to use the corporation’s assets to finance the acquisition or otherwise to benefit its own interests rather than the interests of the corporation and its other shareholders. The effect of Wyoming’s business combination law is to potentially discourage parties interested in taking control of the Company from doing so if it cannot obtain the approval of our Board.
such exclusive forum provision.
On August 8, 2016, our Board adopteddiscretion of the 2016 Incentiveboard of directors. As of January 1, 2023, 12,094,701 new shares were added to the 2022 Plan and on September 15, 2016 our shareholders voted to approve the 2016 Incentive Plan. The maximum numberthere was an aggregate of 12,129,388 shares of Class A Common Stock remaining available for issuance under the 2016 Incentive2022 Plan.
Company.
Unless we provide otherwise in the prospectus supplement applicable to a particular series of debt securities, we
The
Outstanding Debt Securities
As of December 20, 2016, there are no outstanding debt securities.
We will describe in
Upon
Outstanding Warrants to Purchase Class A Common Stock
As of December 20, 2016, we have outstanding immediately exercisable warrants to purchase an aggregate of 9,585,555 shares of our Class A Common Stock at a weighted average exercise price of $1.36 per share and which expire between April 2018 and April 2019.
A
transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time. These transactions may be effected on any exchange or over-the-counter market or otherwise.
In compliance
time.
The report on the consolidated financial statements contains an explanatory paragraph regarding the Company’s ability to continue as a going concern.
document. We are subject to the information and periodic reporting requirements of the Exchange Act, and we file periodic reports, proxy statements and other information with the SEC.SEC in accordance with the Exchange Act. You canmay read and copy our reports, proxy statements and other information filed with the SEC filings, including the registration statement, over the Internet aton the SEC’s website at http://www.sec.gov. You may also read and copy any document we file with the SEC at its public reference facilities at 100 F Street NE, Washington, D.C. 20549. You may also obtain copies of these documents at prescribed rates by writing to the Public Reference Section of the SEC at 100 F Street NE, Washington, D.C. 20549. Please call the SEC at
We also maintain a website at www.heliusmedical.com, at which you may access these materials free of charge after they are electronically filed with, or furnished to, the SEC. The information contained in, or that can be accessed through, our website is not incorporated by reference in, and is not part of, this prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to
We incorporateprospectus, except for any information superseded by reference intoinformation contained directly in this prospectus. This prospectus andincorporates by reference:
Any statement containedreference in this prospectus orand to be a part of this prospectus from the date of filing of those documents. Nothing in a document incorporated orthis prospectus shall be deemed to incorporate information furnished but not filed with the SEC pursuant to Item 2.02 or 7.01 of Form 8-K.
We will furnish without charge to you, on writtenprospectus except as so modified or oral request, a copy of any or all of the documents incorporated by reference in this prospectus, including exhibits to these documents. You should direct any requests for documents to Helius Medical Technologies, Inc., Suite 400, 41 University Drive, Newtown, Pennsylvania 18940; telephone:superseded.
You also may access these filings on our website at www.heliusmedical.com. We do not incorporate the information on our website into this prospectus or any supplement to this prospectus and you should not consider any information on, or that can be accessed through, our website as part of this prospectus or any supplement to this prospectus (other than those filings with the SEC that we specifically incorporate by reference into this prospectus).
$100,000,000
Class A Common Stock
Debt Securities
Warrants
PROSPECTUS
, 2016
Amount | ||||
Securities and Exchange Commission registration fee | $ | 11,590 | ||
Canadian Securities Filings | 27,982 | |||
Accountants’ fees and expenses | (1) | |||
Legal fees and expenses | (1) | |||
Printing and miscellaneous | (1) | |||
|
| |||
Total expenses | $ | (1) | ||
|
|
| SEC registration fee | | | | $ | 11,020.00 | | |
| FINRA filing fee | | | | | * | | |
| Accounting fees and expenses | | | | | * | | |
| Legal fees and expenses | | | | | * | | |
| Transfer agent fees and expenses | | | | | * | | |
| Trustee fees and expenses | | | | | * | | |
| Printing and miscellaneous expenses | | | | | * | | |
| Total | | | | $ | * | | |
Item 15. Indemnification of Directors |
Our directors and officersOfficers
PERSONAL LIABILITY; INDEMNIFICATION; ADVANCEMENT OF EXPENSES: To the fullest extent permitted by law, a directorlaws of the Company shall not be personally liable to the Company or to its shareholders for monetary damages for any breachState of fiduciary duty as a director. No amendment to, modification of or repeal of this paragraph 14 shall apply to or have any effect on the liability or alleged liability of any directorDelaware. Section 145 of the Company forDGCL provides that a Delaware corporation may indemnify any persons who were, are, or with respect to any acts or omissions of such director occurring prior to such amendment. The Company shall indemnify, advance expenses, and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or isare threatened to be made, a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Company or, while a director or officer of the Company, is or was serving at the request of the Company as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except for claims for indemnification (following the final disposition of such Proceeding) or advancement of expenses not paid in full, the Company shall be required to indemnify a Covered Person in connection with a Proceeding (or part thereof) commenced by such Covered Person only if the commencement of such Proceeding (or part thereof) by the Covered Person was authorized in the specific case by the board of directors of the Company. Any amendment, repeal or modification of this paragraph 14 shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.
Our Bylaws provide that we shall indemnify a director as required by the mandatory indemnification provisions of the WBCA to the extent applicable, and as otherwise provided in the Articles of Incorporation.
We have entered into indemnification agreements with our directors and officers. These agreements provide broader indemnity rights than those provided under the WBCA and our Articles of Incorporation. The indemnification agreements are not intended to deny or otherwise limit third-party or derivative suits against us or our directors or officers, but to the extent a director or officer were entitled to indemnity or contribution under the indemnification agreement, the financial burden of a third-party suit would be borne by us, and we would not benefit from derivative recoveries against the director or officer. Such recoveries would accrue to our benefit but would be offset by our obligations to the director or officer under the indemnification agreement
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Wyoming Business Corporation Act
The WBCA provides that a corporation shall indemnify any director, and may indemnify any officer, employee or agent, of a corporation against expenses, including attorneys’ fees, actually and reasonably incurred by him in connection with any the defense to the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding, or in defense of any claim, issue or matter therein.
The WBCA provides that a corporation may indemnify any person who was or is a party or is threatened to be made a partyparties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative except(other than an action by or in the right of the corporation,such corporation), by reason of the fact that hesuch person is or was aan officer, director, officer, employee or agent of thesuch corporation, or is or was serving at the request of thesuch corporation as aan officer, director, officer, employee or agent of another corporation partnership, joint venture, trust or other enterprise, againstenterprise. The indemnity may include expenses including(including attorneys’ fees,fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by himsuch person in connection with thesuch action, suit or proceeding, if he: (a) is not liable pursuant to the WBCA; or (b)provided that such person acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the corporation’s best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful.
The WBCA provides that aillegal. A Delaware corporation may indemnify any personpersons who waswere, are, or is a party or isare threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that hesuch person is or was a director, officer, employee or agent of thesuch corporation, or is or was serving at the request of thesuch corporation as a director, officer, employee or agent of another corporation partnership, joint venture, trust or other enterprise againstenterprise. The indemnity may include expenses including amounts paid in settlement and(including attorneys’ feesfees) actually and reasonably incurred by himsuch person in connection with the defense or settlement of thesuch action or suit if he: (a) is not liable pursuant to the WBCA; or (b)suit; provided such person acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the corporation’s best interests ofexcept that no indemnification is permitted without judicial approval if the corporation. Indemnification may not be made for any claim, issueofficer or matter as to which such a person has beendirector is adjudged by a court of competent jurisdiction, after exhaustion of all appeals there from, to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses (including attorneys’ fees) actually and reasonably incurred.
The WBCA provides that except as otherwise provided by specific statute, no director or officer, of a corporation is individually liable for a debt or liability of the corporation, unless theto repay all amounts so advanced if it shall ultimately be determined that such director or officer actsis not entitled to be indemnified by us, as long as such undertaking remains required by the alter egoDGCL.
EXHIBIT NUMBER | | | DESCRIPTION OF DOCUMENT | |
| | Form of Underwriting Agreement | | ||
| 3.1 | | | | |
| 3.2 | | | | |
| 3.3 | | | | |
| 3.4 | | | | |
| 4.1^ | | | | |
| 4.2^ | | | | |
| 4.3^ | | | | |
| 4.4^ | | | | |
| 5.1^ | | | | |
| 23.1** | | | |
| EXHIBIT NUMBER | | DESCRIPTION OF DOCUMENT | | |
| 23.2** | | | | |
| 23.3^ | | | | |
| 24.1^ | | | | |
| 107^ | | | |
|
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(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) 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 |
provided, however, that the undertakings 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 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
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(7) That for purposes of determining any liability under the Securities Act, (i) the information omitted from the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the registrant pursuant to Rule 424(b)(l) or (4) or 497(h) under the Securities Act shall be deemed to be a part of the registration statement as of the time it was declared effective; and (ii) each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offing of such securities at that time shall be deemed to be the initialbona fide offering thereof.
(8) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.
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| Helius Medical Technologies, Inc. | ||||||
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| | | By: | | | /s/ | |
Dane C. Andreeff Dane C. Andreeff President, | |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Philippe Deschamps and Joyce LaViscount, and each and either of them, his or her true and lawful attorney-in-fact and agent, each with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to (i) act on, sign and file with the Securities and Exchange Commission any and all amendments (including post-effective amendments) to this registration statement together with all schedules and exhibits thereto and any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act, together with all schedules and exhibits thereto, (ii) act on, sign and file such certificates, instruments, agreements and other documents as may be necessary or appropriate in connection therewith, (iii) act on and file any supplement to any prospectus included in this registration statement or any such amendment or any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act, and (iv) take any and all actions which may be necessary or appropriate to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
| Signature | | | Title | | | Date | |
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/s/ Dane C, Andreeff | | | President, Chief Executive Officer, and | | | May 25, 2023 | | |
/s/ Jeffrey S. Mathiesen | | | Chief Financial Officer and | | | May 25, 2023 | | |
* Paul Buckman | | | | | May 25, 2023 | | ||
| * Blane Walter | | | Director | | | May 25, 2023 | |
| * Sherrie Perkins | | | Director | ||||
| May 25, 2023 | | ||||||
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* Edward M. Straw | | |||||||
| | Director | ||||||
| May 25, 2023 | |||||||
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EXHIBIT INDEX
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| | /s/ Dane Andreeff Attorney-in-fact | | | | |
II-6