EX-10.1






EXECUTION COPY




COMMON STOCK PURCHASE AGREEMENT




COMMON STOCK PURCHASE AGREEMENT (the “Agreement”), dated as of May 16, 2014, by and between
SOPHIRIS BIO INC., a British Columbia corporation (the “Company”), and ASPIRE CAPITAL FUND, LLC, an
Illinois limited liability company (the “Buyer”). Capitalized terms used herein and not otherwise
defined herein are defined in Section 10 hereof.



WHEREAS:



Subject to the terms and conditions set forth in this Agreement, the Company wishes to sell to
the Buyer, and the Buyer wishes to buy from the Company, up to Fifteen Million Dollars
($15,000,000) of common shares without par value in the capital of the Company (the “Common
Stock”). The shares of Common Stock to be purchased hereunder are referred to herein as the
“Purchase Shares.”



NOW THEREFORE, the Company and the Buyer hereby agree as follows:




	 	1.	 	PURCHASE OF COMMON STOCK.





Subject to the terms and conditions set forth in this Agreement, the Company has the right to
sell to the Buyer, and the Buyer has the obligation to purchase from the Company, the Purchase
Shares as follows:



(a) Initial Purchase; Commencement of Purchases of Common Stock. Immediately upon the
execution of this Agreement, the Buyer shall purchase from the Company 604,230 Purchase Shares (at
an approximate per share price of $3.31) and shall pay to the Company as the purchase price against
delivery of such Purchase Shares, via wire transfer, Two Million Dollars ($2,000,000) (such
purchase the “Initial Purchase” and such Purchase Shares are referred to herein as “Initial
Purchase Shares”). Upon issuance and payment therefor as provided herein, such Initial Purchase
Shares shall be validly issued and fully paid and non-assessable. The Initial Purchase Shares
shall be issued to the Buyer bearing the restrictive legend set forth in Section 4(e). Thereafter,
the purchase and sale of Purchase Shares hereunder shall occur from time to time upon written
notices by the Company to the Buyer on the terms and conditions as set forth herein following the
satisfaction of the conditions (the “Commencement”) as set forth in Sections 6 and 7 below (the
date of satisfaction of such conditions, the “Commencement Date”).



(b) The Company’s Right to Require Regular Purchases. Subject to the terms and
conditions of this Agreement, on any given Business Day after the Commencement Date, the Company
shall have the right but not the obligation to direct the Buyer by its delivery to the Buyer of a
Purchase Notice from time to time, and the Buyer thereupon shall have the obligation, to buy the
number of Purchase Shares specified in such notice, up to a maximum of 100,000 Purchase Shares, on
such Business Day (as long as such notice is delivered on or before 5:00 p.m. Eastern time on such
Business Day) (each such purchase, a “Regular Purchase”) at the Purchase Price on the Purchase
Date; however, in no event shall the Purchase Amount of a Regular Purchase exceed One Million
Dollars ($1,000,000) per Business Day. The Company may deliver additional Purchase Notices to the
Buyer from time to time so long as the most recent purchase has been completed. The share amounts
in the first sentence of this Section 1(b) shall be appropriately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split, reverse stock split, or other similar
transaction.



(c) VWAP Purchases. Subject to the terms and conditions of this Agreement, in
addition to purchases of Purchase Shares as described in Section 1(b) above, with one Business
Day’s prior written notice (as long as such notice is delivered on or before 5:00 p.m. Eastern time
on the Business Day immediately preceding the VWAP Purchase Date), the Company shall also have the
right but not the obligation to direct the Buyer by the Company’s delivery to the Buyer of a VWAP
Purchase Notice from time to time, and the Buyer thereupon shall have the obligation, to buy the
VWAP Purchase Share Percentage of the trading volume of the Common Stock on the VWAP Purchase Date
up to the VWAP Purchase Share Volume Maximum on the VWAP Purchase Date (each such purchase, a “VWAP
Purchase”) at the VWAP Purchase Price. The Company may deliver a VWAP Purchase Notice to the Buyer
on or before 5:00 p.m. Eastern time on a date on which (i) the Company also submitted a Purchase
Notice for a Regular Purchase of at least 100,000 Purchase Shares to the Buyer and (ii) the Closing
Sale Price is higher than the Floor Price. A VWAP Purchase shall automatically be deemed completed
at such time on the VWAP Purchase Date that the Sale Price falls below the VWAP Minimum Price
Threshold; in such circumstance, the VWAP Purchase Amount shall be calculated using (i) the VWAP
Purchase Share Percentage of the aggregate shares traded on the Principal Market for such portion
of the VWAP Purchase Date prior to the time that the Sale Price fell below the VWAP Minimum Price
Threshold and (ii) a VWAP Purchase Price calculated using the volume weighted average price of
Common Stock sold during such portion of the VWAP Purchase Date prior to the time that the Sale
Price fell below the VWAP Minimum Price Threshold. Each VWAP Purchase Notice must be accompanied
by the VWAP Purchase Share Estimate, a good faith estimate by the Company of the number of Purchase
Shares that the Buyer shall have the obligation to buy pursuant to the VWAP Purchase Notice. In no
event shall the Buyer, pursuant to any VWAP Purchase, purchase a number of Purchase Shares that
exceeds 300,000 Purchase Shares in connection with such VWAP Purchase Notice. Upon completion of
each VWAP Purchase Date, the Buyer shall submit to the Company a confirmation of the VWAP Purchase
in form and substance reasonably acceptable to the Company. Immediately upon the determination of
the VWAP Purchase Amount, and upon receipt of the VWAP Purchase Amount by the Company, the Company
will issue instructions to the Company’s Transfer Agent to immediately issue to the Buyer that
number of VWAP Purchase Shares equal to the VWAP Purchase Amount divided by the VWAP Purchase
Price. The Company may deliver additional VWAP Purchase Notices to the Buyer from time to time so
long as the most recent purchase has been completed.



(d) Payment for Purchase Shares. For each Regular Purchase and VWAP Purchase, the
Buyer shall pay to the Company an amount equal to the Purchase Amount as full payment for such
Purchase Shares or VWAP Purchase Amount, as applicable, via wire transfer of immediately available
funds on the same Business Day that the Buyer receives such Purchase Notice or the VWAP Purchase
Amount has been confirmed by the Company, as applicable. All payments made under this Agreement
shall be made in lawful money of the United States of America via wire transfer of immediately
available funds to such account as the Company may from time to time designate by written notice in
accordance with the provisions of this Agreement. Whenever any amount expressed to be due by the
terms of this Agreement is due on any day that is not a Business Day, the same shall instead be due
on the next succeeding day that is a Business Day.



(e) Purchase Price Floor. The Company and the Buyer shall not effect any sales under
this Agreement on any Purchase Date where the Closing Sale Price is less than the Floor Price.
“Floor Price” means $2.00 per share of Common Stock, which shall be appropriately adjusted for any
reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar
transaction.



(f) Records of Purchases. The Buyer and the Company shall each maintain records
showing the remaining Available Amount at any given time and the dates and purchase amounts for
each purchase, or shall use such other method reasonably satisfactory to the Buyer and the Company
to reconcile the remaining Available Amount.



(g) Taxes. The Company shall pay any and all transfer, stamp or similar taxes that
may be payable with respect to the issuance and delivery of any shares of Common Stock to the Buyer
made under this Agreement.



(h) Compliance with Principal Market Rules. Notwithstanding anything in this
Agreement to the contrary, and in addition to the limitations set forth in Section 1(e), the total
number of shares of Common Stock that may be issued under this Agreement, including the Commitment
Shares (as defined in Section 4(e) hereof), shall be limited to 3,228,359 shares of Common Stock
(the “Exchange Cap”), which equals 19.99% of the Company’s outstanding shares of Common Stock as of
the date hereof, unless shareholder approval is obtained to issue more than such 19.99%. The
Exchange Cap shall be appropriately adjusted for any stock dividend, stock split, reverse stock
split or similar transaction. The foregoing limitation shall not apply if shareholder approval has
not been obtained and at any time the Exchange Cap is reached and at all times thereafter the
average price paid for all shares of Common Stock issued under this Agreement is equal to or
greater than $3.11 (the “Minimum Price”), a price equal to the Closing Sale Price on the date
hereof (in such circumstance, for purposes of the Principal Market, the transaction contemplated
hereby would not be “below market” and the Exchange Cap would not apply). Notwithstanding the
foregoing, the Company shall not be required or permitted to issue, and the Buyer shall not be
required to purchase, any shares of Common Stock under this Agreement if such issuance would
violate the rules or regulations of the Principal Market. The Company may, in its sole discretion,
determine whether to obtain shareholder approval to issue more than 19.99% of its outstanding
shares of Common Stock hereunder if such issuance would require shareholder approval
under the rules or regulations of the Principal Market.



(i) Beneficial Ownership Limitation. The Company shall not issue and the Buyer shall
not purchase any shares of Common Stock under this Agreement if such shares proposed to be issued
and sold, when aggregated with all other shares of Common Stock then owned beneficially (as
calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by
the Buyer and its affiliates would result in the beneficial ownership by the Buyer and its
affiliates of more than 19.99% of the then issued and outstanding shares of Common Stock.



2. BUYER’S REPRESENTATIONS AND WARRANTIES.



The Buyer represents and warrants to the Company that as of the date hereof and as of the
Commencement Date:



(a) Investment Purpose. The Buyer is entering into this Agreement and acquiring the
Commitment Shares (as defined in Section 4(e) hereof) and the Purchase Shares (the Purchase Shares
and the Commitment Shares are collectively referred to herein as the “Securities”), for its own
account for investment only and not with a view towards, or for resale in connection with, the
public sale or distribution thereof; provided however, by making the representations herein, the
Buyer does not agree to hold any of the Securities for any minimum or other specific term.



(b) Accredited Investor Status. The Buyer is an “accredited investor” as that term is
defined in Rule 501(a)(3) of Regulation D of the 1933 Act.



(c) Reliance on Exemptions. The Buyer understands that the Securities are being
offered and sold to it in reliance on specific exemptions from the registration requirements of
United States federal and state securities laws and that the Company is relying in part upon the
truth and accuracy of, and the Buyer’s compliance with, the representations, warranties,
agreements, acknowledgments and understandings of the Buyer set forth herein in order to determine
the availability of such exemptions and the eligibility of the Buyer to acquire the Securities.



(d) Information. The Buyer has been furnished with all materials relating to the
business, finances and operations of the Company and materials relating to the offer and sale of
the Securities that have been reasonably requested by the Buyer, including, without limitation, the
SEC Documents (as defined in Section 3(f) hereof). The Buyer understands that its investment in
the Securities involves a high degree of risk. The Buyer (i) is able to bear the economic risk of
an investment in the Securities including a total loss, (ii) has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and risks of the
proposed investment in the Securities and (iii) has had an opportunity to ask questions of and
receive answers from the officers of the Company concerning the financial condition and business of
the Company and other matters related to an investment in the Securities. Neither such inquiries
nor any other due diligence investigations conducted by the Buyer or its representatives shall
modify, amend or affect the Buyer’s right to rely on the Company’s representations and warranties
contained in Section 3 below. The Buyer has sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision with respect to its acquisition of the
Securities.



(e) No Governmental Review. The Buyer understands that no United States federal or
state agency or any other government or governmental agency has passed on or made any
recommendation or endorsement of the Securities or the fairness or suitability of the investment in
the Securities nor have such authorities passed upon or endorsed the merits of the offering of the
Securities.



(f) Transfer or Sale. The Buyer understands that except as provided in the
Registration Rights Agreement (as defined in Section 4(a) hereof): (i) the Securities have not been
and are not being registered under the 1933 Act or any state securities laws, and may not be
offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder or
(B) an exemption exists permitting such Securities to be sold, assigned or transferred without such
registration; (ii) any sale of the Securities made in reliance on Rule 144 may be made only in
accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of the
Securities under circumstances in which the seller (or the person through whom the sale is made)
may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance
with some other exemption under the 1933 Act or the rules and regulations of the SEC thereunder;
and (iii) neither the Company nor any other person is under any obligation to register the
Securities under the 1933 Act or any state securities laws or to comply with the terms and
conditions of any exemption thereunder.



(g) Organization. The Buyer is a limited liability company duly organized and validly
existing in good standing under the laws of the jurisdiction in which it is organized, and has the
requisite organizational power and authority to own its properties and to carry on its business as
now being conducted.



(h) Validity; Enforcement. This Agreement has been duly and validly authorized,
executed and delivered on behalf of the Buyer and is a valid and binding agreement of the Buyer
enforceable against the Buyer in accordance with its terms, subject as to enforceability to (i)
general principles of equity and to applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation and other similar laws relating to, or affecting generally, the enforcement of
applicable creditors’ rights and remedies and (ii) public policy underlying any law, rule or
regulation (including any federal or state securities law, rule or regulation) with regards to
indemnification, contribution or exculpation. The execution and delivery of the Transaction
Documents by the Buyer and the consummation by it of the transactions contemplated hereby and
thereby do not conflict with the Buyer’s certificate of organization or operating agreement or
similar documents, and do not require further consent or authorization by the Buyer, its managers
or its members.



(i) Residency. The Buyer is a resident of the State of Illinois.



(j) No Prior Short Selling. The Buyer represents and warrants to the Company that at
no time prior to the date of this Agreement has any of the Buyer, its agents, representatives or
affiliates engaged in or effected, in any manner whatsoever, directly or indirectly, any (i) “short
sale” (as such term is defined in Section 242.200 of Regulation SHO of the Securities Exchange Act
of 1934, as amended (the “1934 Act”)) of the Common Stock or (ii) hedging transaction, which
establishes a net short position with respect to the Common Stock.



3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.



The Company represents and warrants to the Buyer that as of the date hereof and as of the
Commencement Date:



(a) Organization and Qualification. The Company and its “Subsidiaries” (which for
purposes of this Agreement means any entity in which the Company, directly or indirectly, owns more
than 50% of the securities, voting stock or capital stock or other similar equity interests) are
corporations or limited liability companies duly organized and validly existing in good standing
under the laws of the jurisdiction in which they are incorporated, amalgamated or organized, and
have the requisite corporate or organizational power and authority to own their properties and to
carry on their business as now being conducted. Each of the Company and its Subsidiaries is duly
qualified as a foreign corporation or limited liability company to do business and is in good
standing in every jurisdiction in which its ownership of property or the nature of the business
conducted by it makes such qualification necessary, except to the extent that the failure to be so
qualified or be in good standing could not reasonably be expected to have a Material Adverse
Effect. As used in this Agreement, “Material Adverse Effect” means any material adverse effect on
any of: (i) the business, properties, assets, operations, results of operations or financial
condition of the Company and its Subsidiaries, if any, taken as a whole, or (ii) the authority or
ability of the Company to perform its obligations under the Transaction Documents (as defined in
Section 3(b) hereof). The Company has no material Subsidiaries except as set forth on Schedule
3(a).



(b) Authorization; Enforcement; Validity. (i) The Company has the requisite corporate
power and authority to enter into and perform its obligations under this Agreement, the
Registration Rights Agreement and each of the other agreements entered into by the parties on the
Commencement Date and attached hereto as exhibits to this Agreement (collectively, the “Transaction
Documents”), and to issue the Securities in accordance with the terms hereof and thereof, (ii) the
execution and delivery of the Transaction Documents by the Company and the consummation by it of
the transactions contemplated hereby and thereby, including without limitation, the issuance of the
Commitment Shares and the reservation for issuance and the issuance of the Purchase Shares issuable
under this Agreement, have been duly authorized by the Company’s Board of Directors or duly
authorized committee thereof, do not conflict with the Company’s certificate of Amalgamation,
Articles or Notice of Articles of the Company and articles of the Company (collectively, the
Company’s “constitutive documents”), and do not require further consent or authorization by the
Company, its Board of Directors or its shareholders, (iii) this Agreement has been, and each other
Transaction Document shall be, on the Commencement Date, duly executed and delivered by the Company
and (iv) this Agreement constitutes, and each other Transaction Document upon its execution on
behalf of the Company, shall constitute, the valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, except as such enforceability may
be limited by (y) general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the
enforcement of creditors’ rights and remedies and (z) public policy underlying any law, rule or
regulation (including any federal or states securities law, rule or regulation) with regards to
indemnification, contribution or exculpation. The Board of Directors of the Company or duly
authorized committee thereof has approved the resolutions (the “Signing Resolutions”) substantially
in the form as set forth as Exhibit B-1 attached hereto to authorize this Agreement and the
transactions contemplated hereby. The Signing Resolutions are valid, in full force and effect and
have not been modified or supplemented in any material respect other than by the resolutions set
forth in Exhibit B-2 attached hereto regarding the registration statement referred to in Section 4
hereof. The Company has delivered to the Buyer a true and correct copy of the Signing Resolutions
as approved by the Board of Directors of the Company or an appropriate Board committee.



(c) Capitalization. As of the date hereof, the authorized share capital of the
Company consists of (i) an unlimited number of shares of Common Stock, no par value, of which as of
the date hereof, 16,149,871 common shares are issued and outstanding, no common shares are held as
treasury shares, 1,614,987 common shares are reserved for future issuance pursuant to the Company’s
equity incentive plans, of which approximately 1,373,848 common shares remain available for future
option grants or stock awards, and 241,139 common shares are issuable and reserved for issuance
pursuant to securities (other than stock options or equity based awards issued pursuant to the
Company’s stock incentive plans) exercisable or exchangeable for, or convertible into, shares of
Common Stock, and (ii) an unlimited number of preferred shares, of which as of the date hereof no
shares are issued and outstanding. All of such outstanding shares have been, or upon issuance will
be, validly issued and are fully paid and non-assessable. Except as disclosed in Schedule 3(c),
(i) no shares in the capital of the Company are subject to preemptive rights or any other similar
rights or any liens or encumbrances suffered or permitted by the Company, (ii) there are no
outstanding debt securities of the Company or any of its Subsidiaries, (iii) there are no
outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into, any shares in the capital of the
Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by
which the Company or any of its Subsidiaries is or may become bound to issue additional shares in
the capital of the Company or any of its Subsidiaries or options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights
convertible into, any shares in the capital of the Company or any of its Subsidiaries, (iv) there
are no material agreements or arrangements under which the Company or any of its Subsidiaries is
obligated to register the sale of any of their securities under the 1933 Act (except the
Registration Rights Agreement), (v) there are no outstanding securities or instruments of the
Company or any of its Subsidiaries which contain any redemption or similar provisions, and there
are no contracts, commitments, understandings or arrangements by which the Company or any of its
Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries,
(vi) there are no securities or instruments containing anti-dilution or similar provisions that
will be triggered by the issuance of the Securities as described in this Agreement and (vii) the
Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any
similar plan or agreement. The Company has furnished or made available to the Buyer true and
correct copies of the Company’s constitutive documents, as in effect as of the date hereof.



(d) Issuance of Securities. The Commitment Shares have been duly authorized and, upon
issuance in accordance with the terms hereof, the Commitment Shares shall be (i) validly issued,
fully paid and non-assessable and (ii) free from all taxes, liens and charges with respect to the
issuance thereof. At least 2,624,129 shares of Common Stock have been duly authorized and reserved
for issuance upon future purchase as Purchase Shares under this Agreement. Upon issuance and
payment therefore in accordance with the terms and conditions of this Agreement, the Purchase
Shares shall be validly issued, fully paid and non-assessable and free from all taxes, liens and
charges with respect to the issue thereof, with the holders being entitled to all rights accorded
to a holder of Common Stock.



(e) No Conflicts. Except as disclosed in Schedule 3(e), the execution, delivery and
performance of the Transaction Documents by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby (including, without limitation, the reservation for
issuance and issuance of the Purchase Shares) will not (i) result in a violation of the Company’s
constitutive documents or (ii) constitute a default (or an event which with notice or lapse of time
or both would become a default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any
of its Subsidiaries is a party, or result, to the Company’s knowledge, in a violation of any law,
rule, regulation, order, judgment or decree (including federal and state securities laws and
regulations and the rules and regulations of the Principal Market applicable to the Company or any
of its Subsidiaries) or by which any property or asset of the Company or any of its Subsidiaries is
bound or affected, except in the case of defaults, terminations, amendments, accelerations,
cancellations and violations under clause (ii), which could not reasonably be expected to result in
a Material Adverse Effect. Except as disclosed in Schedule 3(e), neither the Company nor its
Subsidiaries is in violation of any term of or in default under its constitutive documents or their
organizational charter or bylaws, respectively. Except as disclosed in Schedule 3(e), neither the
Company nor any of its Subsidiaries is in violation of any term of or is in default under any
material contract, agreement, mortgage, indebtedness, indenture, instrument, judgment, decree or
order or any statute, rule or regulation applicable to the Company or its Subsidiaries, except for
possible violations, defaults, terminations or amendments that could not reasonably be expected to
have a Material Adverse Effect. The business of the Company and its Subsidiaries is not being
conducted, and shall not be conducted, in violation of any law, ordinance, or regulation of any
governmental entity, except for possible violations, the sanctions for which either individually or
in the aggregate could not reasonably be expected to have a Material Adverse Effect. Except as
specifically contemplated by this Agreement, reporting obligations under the 1934 Act or as
required under the 1933 Act or applicable state securities laws or the filing of a Listing of
Additional Shares Notification Form with the Principal Market, the Company is not required to
obtain any consent, authorization or order of, or make any filing or registration with, any court
or governmental agency or any regulatory or self-regulatory agency in order for it to execute,
deliver or perform any of its obligations under or contemplated by the Transaction Documents in
accordance with the terms hereof or thereof. Except for reporting obligations under the 1934 Act,
all consents, authorizations, orders, filings and registrations which the Company is required to
obtain pursuant to the preceding sentence shall be obtained or effected on or prior to the
Commencement Date. The Company is not subject to any notices or actions from or to the Principal
Market, other than routine matters incident to listing on the Principal Market and not involving a
violation of the rules of the Principal Market. To the Company’s knowledge, the Principal Market
has not commenced any delisting proceedings against the Company.



(f) SEC Documents; Financial Statements. Except as disclosed in Schedule 3(f), since
August 16, 2013, the Company has filed all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC pursuant to the reporting requirements of the
1934 Act (all of the foregoing filed prior to the date hereof and all exhibits included therein and
financial statements and schedules thereto and documents incorporated by reference therein being
hereinafter referred to as the “SEC Documents”). As of their respective dates (except as they have
been correctly amended), the SEC Documents complied in all material respects with the requirements
of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the
SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC (except as
they may have been properly amended), contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading. As of their
respective dates (except as they have been properly amended), the financial statements of the
Company included in the SEC Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with respect thereto.
Such financial statements have been prepared in accordance with generally accepted accounting
principles, consistently applied, during the periods involved (except (i) as may be otherwise
indicated in such financial statements or the notes thereto or (ii) in the case of unaudited
interim statements, to the extent they may exclude footnotes or may be condensed or summary
statements) and fairly present in all material respects the financial position of the Company as of
the dates thereof and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit adjustments). Except as
disclosed in Schedule 3(f) or routine correspondence, such as comment letters and notices of
effectiveness in connection with previously filed registration statements or periodic reports
publicly available on EDGAR, to the Company’s knowledge, the Company or any of its Subsidiaries are
not presently the subject of any inquiry, investigation or action by the SEC.



(g) Absence of Certain Changes. Except as disclosed in Schedule 3(g), since December
31, 2013, there has been no material adverse change in the business, properties, operations,
financial condition or results of operations of the Company or its Subsidiaries taken as a whole.
For purposes of this Agreement, neither a decrease in cash or cash equivalents nor losses incurred
in the ordinary course of the Company’s business shall be deemed or considered a material adverse
change. The Company has not taken any steps, and does not currently expect to take any steps, to
seek protection pursuant to any Bankruptcy Law nor does the Company or any of its Subsidiaries have
any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy or
insolvency proceedings. The Company is financially solvent and is generally able to pay its debts
as they become due.



(h) Absence of Litigation. Except as disclosed in Schedule 3(h), to the Company’s
knowledge, there is no action, suit, proceeding, inquiry or investigation before or by any court,
public board, government agency, self-regulatory organization or body pending or, to the knowledge
of the Company or any of its Subsidiaries, threatened against the Company or any of the Company’s
Subsidiaries or any of the Company’s or the Company’s Subsidiaries’ officers or directors in their
capacities as such, which could reasonably be expected to have a Material Adverse Effect (each, an
“Action”). A description of each such Action, if any, is set forth in Schedule 3(h).



(i) Acknowledgment Regarding Buyer’s Status. The Company acknowledges and agrees that
the Buyer is acting solely in the capacity of arm’s length purchaser with respect to the
Transaction Documents and the transactions contemplated hereby and thereby. The Company further
acknowledges that the Buyer is not acting as a financial advisor or fiduciary of the Company (or in
any similar capacity) with respect to the Transaction Documents and the transactions contemplated
hereby and thereby and any advice given by the Buyer or any of its representatives or agents in
connection with the Transaction Documents and the transactions contemplated hereby and thereby is
merely incidental to the Buyer’s purchase of the Securities. The Company further represents to the
Buyer that the Company’s decision to enter into the Transaction Documents has been based solely on
the independent evaluation by the Company and its representatives and advisors.



(j) Intellectual Property Rights. To the Company’s knowledge, the Company and its
Subsidiaries own or possess adequate rights or licenses to use all material trademarks, trade
names, service marks, service mark registrations, service names, patents, patent rights,
copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and other
intellectual property rights (collectively, “Intellectual Property”) necessary to conduct their
respective businesses as now conducted, except as set forth in Schedule 3(j) or to the extent that
the failure to own, possess, license or otherwise hold adequate rights to use Intellectual Property
would not, individually or in the aggregate, have a Material Adverse Effect. Except as disclosed
in Schedule 3(j), none of the Company’s active and registered Intellectual Property will expire or
terminate by the terms and conditions thereof within two years from the date of this Agreement.
The Company and its Subsidiaries do not have any knowledge of any infringement by the Company or
its Subsidiaries of any Intellectual Property of others, or of any such development of similar or
identical trade secrets or technical information by others with respect to the Company’s or its
Subsidiaries’ Intellectual Property and, except as set forth on Schedule 3(j), there is no claim,
action or proceeding being made or brought against, or to the Company’s knowledge, being threatened
against, the Company or its Subsidiaries regarding Intellectual Property, which could reasonably be
expected to have a Material Adverse Effect.



(k) Environmental Laws. The Company and its Subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and regulations relating to the
protection of the environment or human health and safety and with respect to hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all
permits, licenses or other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in compliance with all terms and conditions of
any such permit, license or approval, except where, in each of the three foregoing clauses, the
failure to so comply or receive such approvals could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.



(l) Title. The Company and its Subsidiaries have good and marketable title to all
personal property owned by them that is material to the business of the Company and its
Subsidiaries, free and clear of all liens, encumbrances and defects except such as are described in
Schedule 3(l) or such as do not materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the Company and any of its
Subsidiaries or could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. Any real property and facilities held under lease by the Company and any
of its Subsidiaries, to the Company’s knowledge, are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company and its Subsidiaries.



(m) Insurance. The Company and each of its Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such amounts as management
of the Company believes to be reasonable and customary in the businesses in which the Company and
its Subsidiaries are engaged. Since January 1, 2012, neither the Company nor any such Subsidiary
has been refused any insurance coverage sought or applied for and neither the Company nor any such
Subsidiary, to the Company’s knowledge, will be unable to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not reasonably be expected to have a
Material Adverse Effect.



(n) Regulatory Permits. The Company and its Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses as currently conducted, except when
the failure to so possess such certificates, authorizations or permits could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect, and neither the
Company nor any such Subsidiary has received any written notice of proceedings relating to the
revocation or modification of any such material certificate, authorization or permit.



(o) Tax Status. The Company and each of its Subsidiaries has made or filed all
federal and state income and all other material tax returns, reports and declarations required by
any jurisdiction to which it is subject (unless and only to the extent that the Company and each of
its Subsidiaries has set aside on its books reserves reasonably adequate for the payment of all
unpaid and unreported taxes or filed valid extensions) and has paid all taxes and other
governmental assessments and charges that are material in amount, shown or determined to be due on
such returns, reports and declarations, except those being contested in good faith and has set
aside on its books reserves reasonably adequate for the payment of all taxes for periods subsequent
to the periods to which such returns, reports or declarations apply. To the Company’s knowledge,
there are no unpaid taxes in any material amount claimed to be due by the taxing authority of any
jurisdiction.



(p) Transactions With Affiliates. Except as set forth on Schedule 3(p), and other
than the grant or exercise of stock options or any other equity securities offered pursuant to duly
adopted stock or incentive compensation plans as disclosed on Schedule 3(c), as of the date hereof,
none of the officers, directors or employees of the Company is presently a party to any transaction
with the Company or any of its Subsidiaries (other than for services as employees, officers and
directors and reimbursement for expenses incurred on behalf of the Company), including any
contract, agreement or other arrangement providing for the furnishing of services to or by,
providing for rental of real or personal property to or from, or otherwise requiring payments to or
from any officer, director or such employee or, to the knowledge of the Company, any corporation,
partnership, trust or other entity in which any officer, director, or any such employee has a
material interest or is an officer, director, trustee or general partner.



(q) Application of Takeover Protections. The Company and its board of directors have
taken or will take prior to the Commencement Date all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison pill (including any
distribution under a rights agreement) or other similar anti-takeover provision under the Company’s
constitutive documents or the laws of the province of its incorporation which is or could
become applicable to the Buyer as a result of the transactions contemplated by this Agreement,
including, without limitation, the Company’s issuance of the Securities and the Buyer’s ownership
of the Securities.



4. COVENANTS.



(a) Filing of Form 8-K and Registration Statement. The Company agrees that it shall,
within the time required under the 1934 Act, file a Current Report on Form 8-K disclosing this
Agreement and the transaction contemplated hereby. The Company shall also file within ten (10)
Business Days from the date hereof a new registration statement covering the sale of the Securities
by the Buyer in accordance with the terms of the Registration Rights Agreement between the Company
and the Buyer, dated as of the date hereof (“Registration Rights Agreement”).



(b) Blue Sky. The Company shall take such action, if any, as is reasonably necessary
in order to obtain an exemption for or to qualify (i) the initial issuance of the Securities to the
Buyer under this Agreement and (ii) any subsequent sale of the Securities by the Buyer, in each
case, under applicable securities or “Blue Sky” laws of the states of the United States in such
states as is reasonably requested by the Buyer from time to time, and shall provide evidence of any
such action so taken to the Buyer at its written request.



(c) Listing. The Company shall promptly secure the listing of all of the Securities
upon each national securities exchange and automated quotation system that requires an application
by the Company for listing, if any, upon which shares of Common Stock are then listed (subject to
official notice of issuance) and shall maintain such listing, so long as any other shares of Common
Stock shall be so listed. The Company shall maintain the Common Stock’s listing on the Principal
Market in accordance with the requirements of the Registration Rights Agreement. Neither the
Company nor any of its Subsidiaries shall take any action that would be reasonably expected to
result in the delisting or suspension of the Common Stock on the Principal Market, unless the
Common Stock is immediately thereafter traded on the New York Stock Exchange, the NYSE MKT, the
Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq Capital Market, the OTC Bulletin
Board, or the OTCQB or OTCQX market places of the OTC Markets. The Company shall pay all fees and
expenses in connection with satisfying its obligations under this Section.



(d) Limitation on Short Sales and Hedging Transactions. The Buyer agrees that
beginning on the date of this Agreement and ending on the date of termination of this Agreement as
provided in Section 11(k), the Buyer and its agents, representatives and affiliates shall not in
any manner whatsoever enter into or effect, directly or indirectly, any (i) “short sale” (as such
term is defined in Section 242.200 of Regulation SHO of the 1934 Act) of the Common Stock or (ii)
hedging transaction, which establishes a net short position with respect to the Common Stock.



(e) Issuance of Commitment Shares and Initial Purchase Shares. Immediately upon the
execution of this Agreement, the Company shall issue to the Buyer as consideration for the Buyer
entering into this Agreement 90,635 shares of Common Stock (the “Commitment Shares”) and, pursuant
to Section 1(a), the Buyer shall purchase the Initial Purchase Shares. The Commitment Shares and
Initial Purchase Shares shall be issued in certificated form and (subject to Section 5 hereof)
shall bear a restrictive legend substantially similar to the following:



THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR (2) AN OPINION OF HOLDER’S COUNSEL, IN A
CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE
STATE SECURITIES LAWS.



(f) Due Diligence. The Buyer shall have the right, from time to time as the Buyer may
reasonably deem appropriate, to perform reasonable due diligence on the Company during normal
business hours. The Company and its officers and employees shall provide information and
reasonably cooperate with the Buyer in connection with any reasonable request by the Buyer related
to the Buyer’s due diligence of the Company, including, but not limited to, any such request made
by the Buyer in connection with (i) the filing of the registration statement described in Section
4(a) hereof and (ii) the Commencement; provided however, that at no time is the Company required or
permitted to disclose material nonpublic information to the Buyer or breach any obligation of
confidentiality or non-disclosure to a third party or make any disclosure that could cause a waiver
of attorney-client privilege. Each party hereto agrees not to disclose any Confidential
Information of the other party to any third party and shall not use the Confidential Information of
such other party for any purpose other than in connection with, or in furtherance of, the
transactions contemplated hereby; provided that, the receiving party may disclose Confidential
Information of the disclosing party, without violating the obligations of this Agreement, to the
extent such disclosure is required by law or regulation or an order of a court or other
governmental body, provided that the receiving party provides the disclosing party with reasonable
prior written notice of such disclosure and makes a reasonable effort to assist the disclosing
party in obtaining a protective order preventing or limiting the disclosure and/or requiring that
the Confidential Information so disclosed be used only for the purposes for which the law or
regulation required, or for which the order was issued. Each party hereto acknowledges that the
Confidential Information shall remain the property of the disclosing party and agrees that it shall
take all reasonable measures to protect the secrecy of any Confidential Information disclosed by
the other party.



(g) Disposition of Securities. The Buyer shall not sell any Securities except as
provided in this Agreement, the Registration Rights Agreement and the “Plan of Distribution”
section of the prospectus included in the Registration Statement. The Buyer shall not transfer any
Securities except pursuant to sales described in the “Plan of Distribution” section of the
prospectus included in the Registration Statement or pursuant to Rule 144 under the 1933 Act. In
the event of any sales of Securities pursuant to the Registration Statement, the Buyer will (i)
effect such sales pursuant to the “Plan of Distribution” section of the prospectus included in the
Registration Statement, and (ii) will comply with all applicable prospectus delivery requirements.



5. TRANSFER AGENT INSTRUCTIONS.



Immediately upon the execution of this Agreement and receipt by the Company of the $2,000,000
payment for the Initial Purchase Shares , the Company shall deliver to the Transfer Agent a letter
in the form as set forth as Exhibit D attached hereto with respect to the issuance of the Initial
Purchase Shares and the Commitment Shares. On or prior to the Commencement Date, the Company shall
cause any restrictive legend on the Initial Purchase Shares and the Commitment Shares to be removed
upon surrender of the originally issued certificate(s) for such shares. So long as the Buyer
complies with its obligations in Section 4(g), all of the additional Purchase Shares to be issued
under this Agreement shall be issued without any restrictive legend unless the Buyer expressly
consents otherwise. The Company shall issue irrevocable instructions to the Transfer Agent, and
any subsequent transfer agent, to issue Common Stock in the name of the Buyer for the Purchase
Shares (the “Irrevocable Transfer Agent Instructions”). The Company warrants to the Buyer that, so
long as the Buyer complies with its obligations in Section 4(g), no instruction other than the
Irrevocable Transfer Agent Instructions referred to in this Section 5, will be given by the Company
to the Transfer Agent with respect to the Purchase Shares and that the Commitment Shares and the
Purchase Shares shall otherwise be freely transferable on the books and records of the Company as
and to the extent provided in this Agreement and the Registration Rights Agreement, subject to the
provisions of Section 4(e) in the case of the Commitment Shares. Without limiting the foregoing,
the Buyer acknowledges and agrees that it is subject to the limitations regarding disposition of
Securities and other purchases or sales of any securities of the Company set forth in Section 4(c)
of the Registration Rights Agreement.




	 	6.	 	CONDITIONS TO THE COMPANY’S RIGHT TO COMMENCE






SALES OF SHARES OF COMMON STOCK UNDER THIS AGREEMENT.



The right of the Company hereunder to commence sales of the Purchase Shares (other than the
Initial Purchase Shares) is subject to the satisfaction of each of the following conditions on or
before the Commencement Date (the date that the Company may begin sales of Purchase Shares (other
than the Initial Purchase Shares)):



(a) The Buyer shall have executed each of the Transaction Documents and delivered the same to
the Company;



(b) The representations and warranties of the Buyer shall be true and correct as of the
Commencement Date as though made at that time (except for representations and warranties that speak
as of a specific date, which shall be true and correct in all material respects as of such specific
date) and the Buyer shall have performed, satisfied and complied in all material respects with the
covenants and agreements required by this Agreement to be performed, satisfied or complied with by
the Buyer at or prior to the Commencement Date; and



(c) A registration statement covering the sale of the Securities by the Buyer shall have been
declared effective under the 1933 Act by the SEC and no stop order with respect to the registration
statement shall be pending or threatened by the SEC.




	 	7.	 	CONDITIONS TO THE BUYER’S OBLIGATION TO MAKE PURCHASES OF SHARES OF COMMON
STOCK.





The obligation of the Buyer to buy Purchase Shares (other than the Initial Purchase Shares)
under this Agreement is subject to the satisfaction of each of the following conditions on or
before the Commencement Date (the date that the Company may begin sales of Purchase Shares (other
than the Initial Purchase Shares)) and once such conditions have been initially satisfied, there
shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred:



(a) The Company shall have executed each of the Transaction Documents and delivered the same
to the Buyer;



(b) The Company shall have issued to the Buyer the Commitment Shares and the Initial Purchase
Shares and, in the event that the Buyer shall have surrendered the originally issued
certificate(s), shall have removed the restrictive transfer legend from the certificate
representing the Commitment Shares and the Initial Purchase Shares;



(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the
Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal
Market (or since the trading commenced on the Principal Market, if less than 365 days), other than
a general halt in trading in the Common Stock by the Principal Market under halt codes indicating
pending or released material news, and the Securities shall be approved for listing upon the
Principal Market;



(d) The Buyer shall have received the opinion of the Company’s legal counsels dated as of the
Commencement Date in customary form and substance.



(e) The representations and warranties of the Company shall be true and correct in all
material respects (except to the extent that any of such representations and warranties is already
qualified as to materiality in Section 3 above, in which case, such representations and warranties
shall be true and correct without further qualification) as of the date of this Agreement and as of
the Commencement Date as though made at that time (except for representations and warranties that
speak as of a specific date, which shall be true and correct in all material respects as of such
specific date) and the Company shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by the Transaction Documents to be
performed, satisfied or complied with by the Company at or prior to the Commencement Date. The
Buyer shall have received a certificate, executed by the CEO, President or CFO of the Company,
dated as of the Commencement Date, to the foregoing effect in the form attached hereto as Exhibit
A;



(f) The Board of Directors of the Company or a duly authorized committee thereof shall have
adopted resolutions substantially in the form attached hereto as Exhibit B-1, which shall be in
full force and effect without any amendment or supplement thereto as of the Commencement Date;



(g) As of the Commencement Date, the Company shall have reserved out of its authorized and
unissued Common Stock, solely for the purpose of effecting purchases of Purchase Shares hereunder,
2,624,129 shares of Common Stock;



(h) The Irrevocable Transfer Agent Instructions, in form acceptable to the Buyer shall have
been signed by the Company and the Buyer and have been delivered to the Transfer Agent;



(i) The Company shall have delivered to the Buyer a certificate evidencing good standing of
the Company in the Province of British Columbia, Canada issued by the Registrar of Companies of the
Province of British Columbia, Canada as of a date within ten (10) Business Days of the
Commencement Date;



(j) The Company shall have delivered to the Buyer a certificate executed by the Chief
Financial Officer of the Company, dated as of the Commencement Date, in the form attached hereto as
Exhibit C;



(k) A registration statement covering the sale of (i) all of the Commitment Shares and
(ii) such number of Purchase Shares as reasonably determined by the Company shall have been
declared effective under the 1933 Act by the SEC and no stop order with respect thereto shall be
pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a
final and complete form of prospectus, dated and current as of the Commencement Date, to be used by
the Buyer in connection with any sales of any Securities, and to be filed by the Company one (1)
Business Day after the Commencement Date pursuant to Rule 424(b). The Company shall have made all
filings under all applicable federal and state securities laws necessary to consummate the issuance
of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such
laws;



(l) No Event of Default has occurred and is continuing, or any event which, after notice
and/or lapse of time, would become an Event of Default has occurred;



(m) On or prior to the Commencement Date, the Company shall take all necessary action, if any,
and such actions as reasonably requested by the Buyer, in order to render inapplicable any control
share acquisition, business combination, shareholder rights plan or poison pill (including any
distribution under a rights agreement) or other similar anti-takeover provision under the Company’s
constitutive documents or the laws of the province of its incorporation, that is or could
become applicable to the Buyer as a result of the transactions contemplated by this Agreement,
including, without limitation, the Company’s issuance of the Securities and the Buyer’s ownership
of the Securities; and



(n) The Company shall have provided the Buyer with the information reasonably requested by the
Buyer in connection with its due diligence requests made prior to, or in connection with, the
Commencement, in accordance with the terms of Section 4(f) hereof.




	 	8.	 	INDEMNIFICATION.





In consideration of the Buyer’s execution and delivery of the Transaction Documents and
acquiring the Securities hereunder and in addition to all of the Company’s other obligations under
the Transaction Documents, the Company shall defend, protect, indemnify and hold harmless the Buyer
and all of its affiliates, members, officers, directors, and employees, and any of the foregoing
person’s agents or other representatives (including, without limitation, those retained in
connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”)
from and against any and all actions, causes of action, suits, claims, losses, costs, penalties,
fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any
such Indemnitee is a party to the action for which indemnification hereunder is sought), and
including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by
any Indemnitee as a result of, or arising out of, or relating to (a) any misrepresentation or
breach of any representation or warranty made by the Company in the Transaction Documents or any
other certificate, instrument or document contemplated hereby or thereby, (b) any breach of any
covenant, agreement or obligation of the Company contained in the Transaction Documents or any
other certificate, instrument or document contemplated hereby or thereby, or (c) any cause of
action, suit or claim brought or made against such Indemnitee and arising out of or resulting from
the execution, delivery, performance or enforcement of the Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby, other than with respect to
Indemnified Liabilities which directly and primarily result from (A) a breach of any of the Buyer’s
representations and warranties, covenants or agreements contained in this Agreement, (B) the gross
negligence, bad faith or willful misconduct of the Buyer or any other Indemnitee. To the extent
that the foregoing undertaking by the Company may be unenforceable for any reason, the Company
shall make the maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.



9. EVENTS OF DEFAULT.



An “Event of Default” shall be deemed to have occurred at any time as any of the following
events occurs:



(a) while any registration statement is required to be maintained effective pursuant to the
terms of the Registration Rights Agreement, the effectiveness of such registration statement lapses
for any reason (including, without limitation, the issuance of a stop order) or is unavailable to
the Buyer for the sale of all of the Registrable Securities (as defined in the Registration Rights
Agreement), and such lapse or unavailability continues for a period of ten (10) consecutive
Business Days or for more than an aggregate of thirty (30) Business Days in any 365-day period,
which is not in connection with a Permitted Delay (as defined in the Registration Rights
Agreement), a post-effective amendment to any such registration statement or the filing of a new
registration statement; provided, however, that in connection with any post-effective amendment to
such registration statement or filing of a new registration statement that is required to be
declared effective by the SEC, such lapse or unavailability may continue for a period of no more
than thirty (30) consecutive Business Days, which such period shall be extended for up to an
additional thirty (30) Business Days if the Company receives a comment letter from the SEC in
connection therewith;



(b) the suspension from trading or failure of the Common Stock to be listed on a Principal
Market for a period of three (3) consecutive Business Days;



(c) the delisting of the Common Stock from the Principal Market, and the Common Stock is not
immediately thereafter trading on the New York Stock Exchange, the NYSE MKT, the Nasdaq Global
Select Market, the Nasdaq Global Market, the Nasdaq Capital Market or the OTCQB or OTCQX market
places of the OTC Markets;



(d) the failure for any reason by the Transfer Agent to issue Purchase Shares to the Buyer
within five (5) Business Days after the applicable Purchase Date that the Buyer is entitled to
receive;



(e) the Company’s breach of any representation, warranty, covenant or other term or condition
under any Transaction Document if such breach would reasonably be expected to have a Material
Adverse Effect and except, in the case of a breach of a covenant which is reasonably curable, only
if such breach continues uncured for a period of at least five (5) Business Days;



(f) if any Person commences a proceeding against the Company pursuant to or within the meaning
of any Bankruptcy Law;



(g) if the Company pursuant to or within the meaning of any Bankruptcy Law; (A) commences a
voluntary case, (B) consents to the entry of an order for relief against it in an involuntary case,
(C) consents to the appointment of a Custodian of it or for all or substantially all of its
property, (D) makes a general assignment for the benefit of its creditors or (E) becomes insolvent;
or



(h) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that
(A) is for relief against the Company in an involuntary case, (B) appoints a Custodian of the
Company or for all or substantially all of its property, or (C) orders the liquidation of the
Company or any Subsidiary; or



(i) if at any time after the Commencement Date, the Exchange Cap is reached unless and until
stockholder approval is obtained pursuant to Section 1(h) hereof. The Exchange Cap shall be deemed
to be reached at such time if, upon submission of a Purchase Notice or VWAP Purchase Notice under
this Agreement, the issuance of such shares of Common Stock would exceed that number of shares of
Common Stock which the Company may issue under this Agreement without breaching the Company’s
obligations under the rules or regulations of the Principal Market.



In addition to any other rights and remedies under applicable law and this Agreement, including the
Buyer termination rights under Section 11(k) hereof, so long as an Event of Default has occurred
and is continuing, or if any event which, after notice and/or lapse of time, would become an Event
of Default, has occurred and is continuing, or so long as the Closing Sale Price is below the Floor
Price, the Company may not require and the Buyer shall not be obligated or permitted to purchase
any shares of Common Stock under this Agreement. If pursuant to or within the meaning of any
Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding against
the Company, a Custodian is appointed for the Company or for all or substantially all of its
property, or the Company makes a general assignment for the benefit of its creditors, (any of which
would be an Event of Default as described in Sections 9(f), 9(g) and 9(h) hereof) this Agreement
shall automatically terminate without any liability or payment to the Company without further
action or notice by any Person. No such termination of this Agreement under Section 11(k)(i) shall
affect the Company’s or the Buyer’s obligations under this Agreement with respect to pending
purchases and the Company and the Buyer shall complete their respective obligations with respect to
any pending purchases under this Agreement.



10. CERTAIN DEFINED TERMS.



For purposes of this Agreement, the following terms shall have the following meanings:



(a) “1933 Act” means the Securities Act of 1933, as amended.



(b) “Available Amount” means initially Fifteen Million Dollars ($15,000,000) in the aggregate
which amount shall be reduced by the Purchase Amount each time the Buyer purchases shares of Common
Stock pursuant to Section 1 hereof.



(c) “Bankruptcy Law” means Title 11, U.S. Code, or any similar federal or state law for the
relief of debtors.



(d) “Business Day” means any day on which the Principal Market is open for trading during
normal trading hours (i.e., 9:30 a.m. to 4:00 p.m. Eastern Time), including any day on which the
Principal Market is open for trading for a period of time less than the customary time.



(e) “Closing Sale Price” means the last closing trade price for the Common Stock on the
Principal Market as reported by the Principal Market.



(f) “Confidential Information” means any information disclosed by either party to the other
party, either directly or indirectly, in writing, orally or by inspection of tangible objects
(including, without limitation, documents, prototypes, protocols, development plans,
commercialization plans, samples, compounds, formulations, clinical and preclinical trial results,
plant and equipment), which is designated as “Confidential,” “Proprietary” or some similar
designation. Information communicated orally shall be considered Confidential Information if such
information is confirmed in writing as being Confidential Information within ten (10) Business Days
after the initial disclosure. Confidential Information may also include information disclosed to a
disclosing party by third parties. Confidential Information shall not, however, include any
information which (i) was publicly known and made generally available in the public domain prior to
the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally
available after disclosure by the disclosing party to the receiving party through no action or
inaction of the receiving party; (iii) is already in the possession of the receiving party at the
time of disclosure by the disclosing party as shown by the receiving party’s files and records
immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third
party without a breach of such third party’s obligations of confidentiality; and (v) is
independently developed by the receiving party without use of or reference to the disclosing
party’s Confidential Information, as shown by documents and other competent evidence in the
receiving party’s possession.



(g) “Custodian” means any receiver, trustee, assignee, liquidator or similar official under
any Bankruptcy Law.



(h) “Maturity Date” means the date that is thirty (30) months from the Commencement Date.



(i) “Person” means an individual or entity including any limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated organization and a
government or any department or agency thereof.



(j) “Principal Market” means the Nasdaq Global Market; provided however, that in the event the
Company’s Common Stock is ever listed or traded on the New York Stock Exchange, the NYSE MKT, the
Nasdaq Global Select Market, the Nasdaq Global Market, Nasdaq Capital Market or the OTCQX market
place of the OTC Markets, then the “Principal Market” shall mean such other market or exchange on
which the Company’s Common Stock is then listed or traded.



(k) “Purchase Amount” means, with respect to any particular purchase made hereunder, the
portion of the Available Amount to be purchased by the Buyer pursuant to Section 1 hereof as set
forth in a valid Purchase Notice or VWAP Purchase Notice which the Company delivers to the Buyer.



(l) “Purchase Date” means with respect to any Regular Purchase made hereunder, the Business
Day of receipt by the Buyer of a valid Purchase Notice that the Buyer is to buy Purchase Shares
pursuant to Section 1(b) hereof.



(m) “Purchase Notice” shall mean an irrevocable written notice from the Company to the Buyer
directing the Buyer to buy Purchase Shares pursuant to Section 1(b) hereof as specified by the
Company therein at the applicable Purchase Price on the Purchase Date.



(n) “Purchase Price” means the lesser of (i) the lowest Sale Price of the Common Stock on the
Purchase Date or (ii) the arithmetic average of the three (3) lowest Closing Sale Prices for the
Common Stock during the ten (10) consecutive Business Days ending on the Business Day immediately
preceding such Purchase Date (to be appropriately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split, reverse stock split or other similar
transaction).



(o) “Sale Price” means any trade price for the shares of Common Stock on the Principal Market
during normal trading hours, as reported by the Principal Market.



(p) “SEC” means the United States Securities and Exchange Commission.



(q) “Transfer Agent” means the transfer agent of the Company as set forth in Section 11(f)
hereof or such other person who is then serving as the transfer agent for the Company in respect of
the Common Stock.



(r) “VWAP Minimum Price Threshold” means, with respect to any particular VWAP Purchase Notice,
the Sale Price on the VWAP Purchase Date equal to the greater of (i) 80% of the Closing Sale Price
on the Business Day immediately preceding the VWAP Purchase Date or (ii) such higher price as set
forth by the Company in the VWAP Purchase Notice.



(s) “VWAP Purchase Amount” means, with respect to any particular VWAP Purchase Notice, the
portion of the Available Amount to be purchased by the Buyer pursuant to Section 1(c) hereof as set
forth in a valid VWAP Purchase Notice which requires the Buyer to buy the VWAP Purchase Share
Percentage of the aggregate shares traded on the Principal Market during normal trading hours on
the VWAP Purchase Date up to the VWAP Purchase Share Volume Maximum, subject to the VWAP Minimum
Price Threshold.



(t) “VWAP Purchase Date” means, with respect to any VWAP Purchase made hereunder, the Business
Day following the receipt by the Buyer of a valid VWAP Purchase Notice that the Buyer is to buy
Purchase Shares pursuant to Section 1(c) hereof.



(u) “VWAP Purchase Notice” shall mean an irrevocable written notice from the Company to the
Buyer directing the Buyer to buy Purchase Shares on the VWAP Purchase Date pursuant to Section 1(c)
hereof as specified by the Company therein at the applicable VWAP Purchase Price with the
applicable VWAP Purchase Share Percentage specified therein.



(v) “VWAP Purchase Share Percentage” means, with respect to any particular VWAP Purchase
Notice pursuant to Section 1(c) hereof, the percentage set forth in the VWAP Purchase Notice which
the Buyer will be required to buy as a specified percentage of the aggregate shares traded on the
Principal Market during normal trading hours up to the VWAP Purchase Share Volume Maximum on the
VWAP Purchase Date subject to Section 1(c) hereof but in no event shall this percentage exceed
thirty percent (30%) of such VWAP Purchase Date’s share trading volume of the Common Stock on the
Principal Market during normal trading hours.



(w) “VWAP Purchase Price” means the lesser of (i) the Closing Sale Price on the VWAP Purchase
Date; or (ii) ninety-seven percent (97%) of volume weighted average price for the Common Stock
traded on the Principal Market during normal trading hours on (A) the VWAP Purchase Date if the
aggregate shares traded on the Principal Market on the VWAP Purchase Date have not exceeded the
VWAP Purchase Share Volume Maximum, or (B) the portion of the VWAP Purchase Date until such time as
the sooner to occur of (1) the time at which the aggregate shares traded on the Principal Market
has exceeded the VWAP Purchase Share Volume Maximum, or (2) the time at which the sale price of
Common Stock falls below the VWAP Minimum Price Threshold (to be appropriately adjusted for any
reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other
similar transaction).



(y) “VWAP Purchase Share Estimate” means the number of Purchase Shares (not to exceed 300,000
Purchase Shares) that the Company has in its sole discretion irrevocably instructed the Buyer to
purchase in connection with a VWAP Purchase Notice pursuant to Section 1(c) hereof on the VWAP
Purchase Date (to be appropriately adjusted for any reorganization, recapitalization, non-cash
dividend, stock split, reverse stock split or other similar transaction).



(y) “VWAP Purchase Share Volume Maximum” means a number of shares of Common Stock traded on
the Principal Market during normal trading hours on the VWAP Purchase Date equal to: (i) the VWAP
Purchase Share Estimate, divided by (ii) the VWAP Purchase Share Percentage (to be appropriately
adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock
split or other similar transaction).



11. MISCELLANEOUS.



(a) Governing Law; Jurisdiction; Jury Trial. The corporate laws of the Province of
British Columbia shall govern all issues concerning the relative rights of the Company and its
shareholders. All other questions concerning the construction, validity, enforcement and
interpretation of this Agreement and the other Transaction Documents shall be governed by the
internal laws of the State of Illinois, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of Illinois or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of Illinois. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in the City of Chicago, for the adjudication of any dispute hereunder or under the other
Transaction Documents or in connection herewith or therewith, or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue
of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under this Agreement and
agrees that such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND
AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.



(b) Counterparts. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other party;
provided that a facsimile or PDF (or other electronic reproduction capable of producing a printed
copy) signature shall be considered due execution and shall be binding upon the signatory thereto
with the same force and effect as if the signature were an original, not a facsimile or PDF (or
other electronic reproduction) signature.



(c) Headings. The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement.



(d) Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the
validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity
or enforceability of any provision of this Agreement in any other jurisdiction.



(e) Entire Agreement. This Agreement and the Registration Rights Agreement supersede
all other prior oral or written agreements between the Buyer, the Company, their affiliates and
persons acting on their behalf with respect to the matters discussed herein, and this Agreement,
the other Transaction Documents and the instruments referenced herein contain the entire
understanding of the parties with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor the Buyer makes any
representation, warranty, covenant or undertaking with respect to such matters. The Company
acknowledges and agrees that is has not relied on, in any manner whatsoever, any representations or
statements, written or oral, other than as expressly set forth in this Agreement.



(f) Notices. Any notices, consents or other communications required or permitted to
be given under the terms of this Agreement must be in writing and will be deemed to have been
delivered: (i) upon receipt when delivered personally; (ii) upon receipt when sent by facsimile
(provided confirmation of transmission is mechanically or electronically generated and kept on file
by the sending party); or (iii) one (1) Business Day after timely deposit with a nationally
recognized overnight delivery service, in each case properly addressed to the party to receive the
same. The addresses and facsimile numbers for such communications shall be:



If to the Company:




Sophiris Bio Inc.


1258 Prospect Street


La Jolla, CA 92037


Telephone: 858-777-1760


Facsimile: 858-412-5693


Attention: Peter Slover


Email: peter@sophiris.com



With a copy (which shall not constitute notice) to:




Cooley LLP


4401 Eastgate Mall


San Diego, CA 92121


Telephone: (858) 550-6064


Facsimile: (858) 550-6420


Attention: Barbara Borden, Esq.


Email: bborden@cooley.com



If to the Buyer:




Aspire Capital Fund, LLC


155 North Wacker Drive, Suite 1600


Chicago, IL 60606


Telephone: 312-658-0400


Facsimile: 312-658-4005


Attention: Steven G. Martin


Email: smartin@aspirecapital.com



With a copy to (which shall not constitute notice):




Morrison & Foerster LLP


2000 Pennsylvania Avenue, NW, Suite 6000


Washington, DC 20006-1888


Telephone: 202-778-1611


Facsimile: 202-887-0763


Attention: Martin P. Dunn, Esq.


Email: mdunn@mofo.com



If to the Transfer Agent:




Computer Share Investor Services Inc.


510 Burrard Street, 3rd Floor


Vancouver, British Columbia, Canada V6C 3B9


Telephone: 604-661-9453


Facsimile: 604-661-9401


Attention: Vivien Leung


Email: Vivien.Leung@computershare.com



or at such other address and/or facsimile number and/or to the attention of such other person as
the recipient party has specified by written notice given to each other party one (1) Business Day
prior to the effectiveness of such change. Written confirmation of receipt (A) given by the
recipient of such notice, consent or other communication, (B) mechanically or electronically
generated by the sender’s facsimile machine containing the time, date, and recipient facsimile
number or (C) provided by a nationally recognized overnight delivery service, shall be rebuttable
evidence of receipt in accordance with clause (i), (ii) or (iii) above, respectively.



(g) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns. The Company shall not assign
this Agreement or any rights or obligations hereunder without the prior written consent of the
Buyer, including by merger or consolidation. The Buyer may not assign its rights or obligations
under this Agreement.



(h) No Third Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other person.



(i) Publicity. The Buyer shall have the right to approve before issuance any press
release, SEC filing or any other public disclosure made by or on behalf of the Company whatsoever
with respect to, in any manner, the Buyer, its purchases hereunder or any aspect of this Agreement
or the transactions contemplated hereby; provided, however, that the Company shall be entitled,
without the prior approval of the Buyer, to make any press release or other public disclosure
(including any filings with the SEC) with respect to such transactions as is required by applicable
law and regulations so long as the Company and its counsel consult with the Buyer in connection
with any such press release or other public disclosure at least two (2) Business Days prior to its
release. The Buyer must be provided with a copy thereof at least one (1) Business Day prior to any
release or use by the Company thereof.



(j) Further Assurances. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may reasonably request in
order to carry out the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.



(k) Termination. This Agreement may be terminated only as follows:




(i) By the Buyer any time an Event of Default exists without any liability or payment
to the Company. However, if pursuant to or within the meaning of any Bankruptcy Law, the
Company commences a voluntary case or any Person commences a proceeding against the Company,
a Custodian is appointed for the Company or for all or substantially all of its property, or
the Company makes a general assignment for the benefit of its creditors, (any of which would
be an Event of Default as described in Sections 9(f), 9(g) and 9(h) hereof) this Agreement
shall automatically terminate without any liability or payment to the Company without
further action or notice by any Person. No such termination of this Agreement under this
Section 11(k)(i) shall affect the Company’s or the Buyer’s obligations under this Agreement
with respect to pending purchases and the Company and the Buyer shall complete their
respective obligations with respect to any pending purchases under this Agreement.




(ii) In the event that the Commencement shall not have occurred the Company shall have
the option to terminate this Agreement for any reason or for no reason without any liability
whatsoever of either party to the other party under this Agreement except as set forth in
Section 11(k)(viii) hereof.




(iii) In the event that the Commencement shall not have occurred on or before September
1, 2014, due to the failure to satisfy any of the conditions set forth in Sections 6 and 7
above with respect to the Commencement, either party shall have the option to terminate this
Agreement at the close of business on such date or thereafter without liability of either
party to any other party; provided, however, that the right to terminate this Agreement
under this Section 11(k)(iii) shall not be available to either party if such failure to
satisfy any of the conditions set forth in Sections 6 and 7 is the result of a breach of
this Agreement by such party or the failure of any representation or warranty of such party
included in this Agreement to be true and correct in all material respects.




(iv) At any time after the Commencement Date, the Company shall have the option to
terminate this Agreement for any reason or for no reason by delivering notice (a “Company
Termination Notice”) to the Buyer electing to terminate this Agreement without any liability
whatsoever of either party to the other party under this Agreement except as set forth in
Section 11(k)(viii) hereof. The Company Termination Notice shall not be effective until one
(1) Business Day after it has been received by the Buyer.




(v) This Agreement shall automatically terminate on the date that the Company sells and
the Buyer purchases the full Available Amount as provided herein, without any action or
notice on the part of any party and without any liability whatsoever of any party to any
other party under this Agreement except as set forth in Section 11(k)(viii) hereof.




(vi) If by the Maturity Date for any reason or for no reason the full Available Amount
under this Agreement has not been purchased as provided for in Section 1 of this Agreement,
this Agreement shall automatically terminate on the Maturity Date, without any action or
notice on the part of any party and without any liability whatsoever of any party to any
other party under this Agreement except as set forth in Section 11(k)(viii) hereof.




(vii) Except as set forth in Sections 11(k)(i) (in respect of an Event of Default under
Sections 9(f), 9(g) and 9(h)), 11(k)(v) and 11(k)(vi), any termination of this Agreement
pursuant to this Section 11(k) shall be effected by written notice from the Company to the
Buyer, or the Buyer to the Company, as the case may be, setting forth the basis for the
termination hereof.




(viii) The representations and warranties of the Company and the Buyer contained in
Sections 2, 3 and 5 hereof, the indemnification provisions set forth in Section 8 hereof and
the agreements and covenants set forth in Sections 4(e) and 11, shall survive the
Commencement and any termination of this Agreement. No termination of this Agreement shall
affect the Company’s or the Buyer’s rights or obligations (A) under the Registration Rights
Agreement, which shall survive any such termination in accordance with its terms, or (B)
under this Agreement with respect to pending purchases and the Company and the Buyer shall
complete their respective obligations with respect to any pending purchases under this
Agreement.



(l) No Financial Advisor, Placement Agent, Broker or Finder. The Company represents
and warrants to the Buyer that it has not engaged any financial advisor, placement agent, broker or
finder in connection with the transactions contemplated hereby. The Buyer represents and warrants
to the Company that it has not engaged any financial advisor, placement agent, broker or finder in
connection with the transactions contemplated hereby. Each party shall be responsible for the
payment of any fees or commissions, if any, of any financial advisor, placement agent, broker or
finder engaged by such party relating to or arising out of the transactions contemplated hereby.
Each party shall pay, and hold the other party harmless against, any liability, loss or expense
(including, without limitation, attorneys’ fees and out of pocket expenses) arising in connection
with any such claim.



(m) No Strict Construction. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.



(n) Failure or Indulgence Not Waiver. No failure or delay in the exercise of any
power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or privilege preclude other or further exercise thereof
or of any other right, power or privilege.



* * * * *





1






IN WITNESS WHEREOF, the Buyer and the Company have caused this Common Stock Purchase Agreement
to be duly executed as of the date first written above.




THE COMPANY:




SOPHIRIS BIO INC.




By: /s/ Peter T. Slover

Name: Peter T. Slover

Title: Chief Financial Officer





BUYER:




ASPIRE CAPITAL FUND, LLC






BY: ASPIRE CAPITAL PARTNERS, LLC


BY: SGM Holdings Corp.




By: /s/ Steven G. Martin

Name: Steven G. Martin

Title: Managing Member




SCHEDULES




	 	 	 
	Schedule 3(a)

Schedule 3(c)

Schedule 3(e)

Schedule 3(f)

Schedule 3(g)

Schedule 3(h)

Schedule 3(j)

Schedule 3(l)

Schedule 3(p)

	 	Subsidiaries

Capitalization

Conflicts

1934 Act Filings

Material Changes

Litigation

Intellectual Property

Title

Transactions with Affiliates






EXHIBITS




	 	 	 
	Exhibit A

Exhibit B

Exhibit C

Exhibit D

	 	Form of Officer’s Certificate

Form of Resolutions of Board of Directors of the Company

Form of CFO’s Certificate

Form of Letter to Transfer Agent






2




DISCLOSURE SCHEDULES




The following schedules are provided in connection with the various representations and warranties
of the Company. These disclosure schedules are an integral part of the Agreement. Any terms defined
in the Agreement shall have the same meanings when used in these schedules, unless the context
indicates otherwise.



Schedule 3(a) Subsidiaries


Sophiris Bio, Inc., a Delaware corporation (wholly-owned by the Company)


Sophiris Bio Holdings Corp., a Delaware corporation (wholly-owned by Sophiris Bio, Inc.)



Schedule 3(c) Capitalization


As of April 30, 2014, the Company had 918,872 outstanding common share purchase warrants. As of
April 30, 2014, the Company had 1,373,848 outstanding stock options which are exercisable into
common shares. As of April 30, 2014, the Company had $4. 1 million of outstanding principal on its
promissory notes with Oxford.



Schedule 3(e) Conflicts


No exception.



Schedule 3(f) 1934 Act Filings


No exception.



Schedule 3(g) Material Changes


No exception.



Schedule 3(h) Litigation


No exception.



Schedule 3(j) Intellectual Property


No exception.



Schedule 3(l) Title


To secure the Company’s repayment obligations under the outstanding Loan and Security Agreement
with Oxford Finance LLC (“Oxford”), Oxford obtained a first priority security interest in all of
the Company’s assets, including intellectual property and all of the Company’s equity interest in
Sophiris Bio Corp and Sophiris Holding Corp.



Schedule 3(p) Transactions with Affiliates


The Company has entered into Indemnification Agreements with its directors and officers, in the
form attached as an exhibit to the Company’s annual report on Form 10-K for the year ended December
31, 2013.



3



EXHIBIT A




FORM OF OFFICER’S CERTIFICATE




This Officer’s Certificate (“Certificate”) is being delivered pursuant to Section 7(e) of that
certain Common Stock Purchase Agreement dated as of May   , 2014 (the “Common Stock Purchase
Agreement”), by and between SOPHIRIS BIO INC., a British Columbia corporation (the “Company”), and
ASPIRE CAPITAL FUND, LLC, an Illinois limited liability company (the “Buyer”). Terms used herein
and not otherwise defined shall have the meanings ascribed to them in the Common Stock Purchase
Agreement.



The undersigned,       ,        of the Company, hereby certifies as follows:



1. I am the        of the Company and make the statements
contained in this Certificate in such capacity and not personally;



2. The representations and warranties of the Company are true and correct in
all material respects (except to the extent that any of such representations and
warranties is already qualified as to materiality in Section 3 of the Common Stock
Purchase Agreement, in which case, such representations and warranties are true and
correct without further qualification) as of the date when made and as of the
Commencement Date as though made at that time (except for representations and
warranties that speak as of a specific date);



3. The Company has performed, satisfied and complied in all material respects
with covenants, agreements and conditions required by the Transaction Documents to
be performed, satisfied or complied with by the Company at or prior to the
Commencement Date.



4. The Company has not taken any steps, and does not currently expect to take
any steps, to seek protection pursuant to any Bankruptcy Law nor does the Company or
any of its Subsidiaries have any knowledge or reason to believe that its creditors
intend to initiate involuntary bankruptcy or insolvency proceedings. The Company is
financially solvent and is generally able to pay its debts as they become due.



IN WITNESS WHEREOF, I have hereunder signed my name on this        day of       .



      



      



The undersigned as Chief Financial Officer of SOPHIRIS BIO INC., a British Columbia
corporation, hereby certifies that        is the duly elected, appointed, qualified
and acting        of SOPHIRIS BIO INC. and that the signature appearing above is his
genuine signature.



      



_______________, Chief Financial Officer





4






EXHIBIT B-1




FORM OF COMPANY RESOLUTIONS

FOR SIGNING PURCHASE AGREEMENT




WHEREAS, management has reviewed with the Board of Directors the background, terms and
conditions of the transactions subject to the Common Stock Purchase Agreement (the “Purchase
Agreement”) by and between the Company and Aspire Capital Fund, LLC (“Aspire”), including all
materials terms and conditions of the transactions subject thereto, providing for the purchase by
Aspire of up to Fifteen Million Dollars ($15,000,000) of common shares without par value in the
capital of the Company (the “Common Stock”); and



WHEREAS, after careful consideration of the Purchase Agreement, the documents incident thereto
and other factors deemed relevant by the Board of Directors, the Board of Directors has determined
that it is advisable and in the best interests of the Company to engage in the transactions
contemplated by the Purchase Agreement, including, but not limited to, the issuance of 90,635
shares of Common Stock to Aspire as a commitment fee (the “Commitment Shares”) and the sale of
shares of Common Stock to Aspire up to the available amount under the Purchase Agreement (the
“Purchase Shares,” and together with the Commitment Shares, the “Aspire Shares”); and



WHEREAS, the Purchase Agreement provides that the Company can direct Aspire to purchase a
specified number of Purchase Shares as determined by the Company at a price per share (the
“Offering Price”) to be determined either in the context of the market or via mechanism as set out
in the Purchase Agreement (the “Pricing Mechanism”) by delivering a notice (a “Purchase Notice”) to
Aspire (the “Additional Purchases”); and



WHEREAS, the Board of Directors of the Company has reviewed and considered the Pricing
Mechanism and believes that the use of such Pricing Mechanism will result in the Offering Price
being equal to the fair value for the Purchase Shares; and



WHEREAS, the Board of Directors of the Company believes it is in the best interests of the
Company to delegate the authority to complete the Additional Purchases, including determining the
final terms of each such Additional Purchase, including the Offering Price and number of Purchase
Shares to be issued, to a certain officers of the Company (the “Authorized Officers”) and wish to
approve the Purchase Agreement and the transactions contemplated therein, including the issuance of
the Purchase Shares to be issued thereunder all on the final terms as determined by such officers
of the Company as delegated.



Transaction Documents




NOW, THEREFORE, BE IT RESOLVED, that the transactions described in the Purchase Agreement are
hereby approved and the Chief Executive Officer and Chief Financial Officer (the “Authorized
Officers”) are severally authorized to execute and deliver the Purchase Agreement, and any other
agreements or documents contemplated thereby including, without limitation, a registration rights
agreement (the “Registration Rights Agreement”) providing for the registration of the shares of the
Company’s Common Stock issuable in respect of the Purchase Agreement on behalf of Aspire, with such
amendments, changes, additions and deletions as the Authorized Officers may deem to be appropriate
and approve on behalf of, the Company, such approval to be conclusively evidenced by the signature
of an Authorized Officer thereon; and



FURTHER RESOLVED, that the terms and provisions of the Registration Rights Agreement by and
among the Company and Aspire are hereby approved and the Authorized Officers are authorized to
execute and deliver the Registration Rights Agreement (pursuant to the terms of the Purchase
Agreement), with such amendments, changes, additions and deletions as the Authorized Officer may
deem appropriate and approve on behalf of, the Company, such approval to be conclusively evidenced
by the signature of an Authorized Officer thereon; and



FURTHER RESOLVED, that the terms and provisions of the Form of Transfer Agent Instructions
(the “Instructions”) are hereby approved and the Authorized Officers are authorized to execute and
deliver the Instructions (pursuant to the terms of the Purchase Agreement and in accordance with
these resolutions), with such amendments, changes, additions and deletions as the Authorized
Officers may deem appropriate and approve on behalf of, the Company, such approval to be
conclusively evidenced by the signature of an Authorized Officer thereon; and



Execution of Purchase Agreement




FURTHER RESOLVED, that the Company be and it hereby is authorized to execute the Purchase
Agreement providing for the purchase of common shares in the capital of the Company having an
aggregate value of up to $15,000,000; and



Issuance of Common Stock




FURTHER RESOLVED, that, in consideration for Aspire agreeing to enter into the Purchase
Agreement and purchase the Purchase Shares in accordance with the terms thereof, the Company is
hereby authorized to issue the Commitment Shares to Aspire as Commitment Shares with a deemed value
of $3.31 per share and that upon issuance of the Commitment Shares in accordance with the terms of
the Purchase Agreement, the Commitment Shares shall be duly authorized, validly issued, fully paid
and non-assessable; and



FURTHER RESOLVED, that the Company is hereby authorized to issue the Initial Purchase Shares
to Aspire for an issue price of $3.31 per share and that upon issuance of the Initial Purchase
Shares in accordance with the terms of the Purchase Agreement, including receipt of consideration
therefore, the Initial Purchase Shares shall be duly authorized, validly issued, fully paid and
non-assessable; and



FURTHER RESOLVED, that either one of the Chief Executive Officer or the Chief Financial
Officer (the “Authorized Officers”) be and are hereby delegated the power to approve the final
terms of each Additional Purchase, including the setting of the Offering Price and the number of
Purchase Shares to be issued, provided that a maximum of $15,000,000 of common shares, including
the Initial Purchase Shares, are issued in accordance with the terms set out in the Purchase
Agreement, and the Authorized Officers be and are hereby authorized and directed to take all steps
that are necessary or desirable to complete finalize the terms the Offering, including issuing or
causing to be issued Purchase Notices to Aspire in respect of Additional Purchases all in
accordance with the Purchase Agreement and on the terms as determined by either one of the
Authorized Officers; and



FURTHER RESOLVED, the Company be and is hereby authorized to reserve, allot and issue such
number of Purchase Shares to Aspire as is required to be issued in accordance with the terms of the
Purchase Agreement up to the available amount under the Purchase Agreement, including the Initial
Purchase Shares, as determined by the Board of Directors, and the issue price of such Purchase
Shares is hereby fixed at the Offering Price as determined by the Authorized Officers in connection
with each such issuance of Purchase Shares and upon issuance of the Purchase Shares in accordance
with the terms of the Purchase Agreement and as set out in the applicable Purchase Notice,
including receipt of the consideration therefore, such Purchase Shares shall be duly authorized,
validly issued, fully paid and non-assessable; and



FURTHER RESOLVED, upon payment for the Purchase Shares, all by their respective holders and in
accordance with the terms of the Purchase Agreement and as set out in the applicable Purchase
Notice, the Purchase Shares shall be, without any further action on the part of the Board of
Directors of the Company, allotted, issued and delivered to such persons as fully paid and
non-assessable common shares, and the Company’s transfer agent be and is hereby authorized and
directed to issue and to deliver to such Purchase Shares in accordance with these resolutions and
the Instructions; and



FURTHER RESOLVED, that the Corporation shall initially reserve 3,318,994 common shares of for
issuance as Purchase Shares in accordance with the terms of the Purchase Agreement; and



Listing of Shares on the Principal Market




FURTHER RESOLVED, that the officers of the Company with the assistance of counsel be, and each
of them hereby is, authorized and directed to take all necessary steps and do all other things
necessary and appropriate to effect the listing of the Aspire Shares on NASDAQ; and



Approval of Actions




FURTHER RESOLVED, that, without limiting the foregoing, the Authorized Officers are, and each
of them hereby is, authorized and directed to proceed on behalf of the Company and to take all such
steps as deemed necessary or appropriate, with the advice and assistance of counsel, to cause the
Company to consummate the agreements referred to herein and to perform its obligations under such
agreements;



FURTHER RESOLVED, that the Authorized Officers be, and each of them hereby is, authorized,
empowered and directed on behalf of and in the name of the Company, to take or cause to be taken
all such further actions and to execute and deliver or cause to be executed and delivered all such
further agreements, amendments, documents, certificates, reports, schedules, applications, notices,
letters and undertakings and to incur and pay all such fees and expenses as in their judgment shall
be necessary, proper or desirable to carry into effect the purpose and intent of any and all of the
foregoing resolutions, and that all actions heretofore taken by any officer or director of the
Company in connection with the transactions contemplated by the agreements described herein are
hereby approved, ratified and confirmed in all respects; and



FURTHER RESOLVED, that any and all actions heretofore or hereinafter taken on behalf of the
Company by any of said persons or entities within the terms of the foregoing resolutions are hereby
approved, ratified and confirmed in all respects as the acts and deeds of the Company.



5



EXHIBIT B-2




FORM OF COMPANY RESOLUTIONS APPROVING REGISTRATION STATEMENT




WHEREAS, there has been presented to the Board of Directors of the Company a Common Stock
Purchase Agreement (the “Purchase Agreement”) by and among the Corporation and Aspire Capital Fund,
LLC (“Aspire”), providing for the purchase by Aspire of up to Fifteen Million Dollars ($15,000,000)
of common shares without par value in the capital of the Company (the “Common Stock”); and



WHEREAS, after careful consideration of the Purchase Agreement, the documents incident thereto
and other factors deemed relevant by the Board of Directors, the Board of Directors has approved
the Purchase Agreement and the transactions contemplated thereby and the Company has executed and
delivered the Purchase Agreement to Aspire; and



WHEREAS, in connection with the transactions contemplated pursuant to the Purchase Agreement,
the Company has agreed to file a registration statement with the Securities and Exchange Commission
(the “Commission”) registering the Commitment Shares (as defined in the Purchase Agreement) and the
Purchase Shares (as defined in the Purchase Agreement) and to list the Commitment Shares and
Purchase Shares on NASDAQ;



WHEREAS, the management of the Company has prepared an initial draft of a Registration
Statement on Form S-1 (the “Registration Statement”) in order to register the sale of the Purchase
Shares and the Commitment Shares (collectively, the “Securities”) by Aspire, a copy of which has
been circulated to the directors; and



WHEREAS, the Board of Directors has determined to approve the Registration Statement and to
authorize the appropriate officers of the Company to take all such actions as they may deem
appropriate to effect the offering.



NOW, THEREFORE, BE IT RESOLVED, that the officers and directors of the Company be, and each of
them hereby is, authorized and directed, with the assistance of counsel and accountants for the
Company, to prepare, execute and file with the Commission the Registration Statement, which
Registration Statement shall be filed substantially in the form presented to the Board of
Directors, with such changes therein as the Chief Executive Officer or Chief Executive Officer of
the Company shall deem desirable and in the best interest of the Company and its shareholders (such
officer’s execution thereof including such changes shall be deemed to evidence conclusively such
determination); and



FURTHER RESOLVED, that the officers of the Company be, and each of them hereby is, authorized
and directed, with the assistance of counsel and accountants for the Company, to prepare, execute
and file with the Commission all amendments, including post-effective amendments, and supplements
to the Registration Statement, and all certificates, exhibits, schedules, documents and other
instruments relating to the Registration Statement, as such officers shall deem necessary or
appropriate (such officer’s execution and filing thereof shall be deemed to evidence conclusively
such determination); and



FURTHER RESOLVED, that the execution of the Registration Statement and of any amendments and
supplements thereto by the officers of the Company be, and the same hereby is, specifically
authorized either personally or by the Chief Executive Officer and Chief Financial Officer (the
“Authorized Officers”) as such officer’s true and lawful attorneys-in-fact and agents; and



FURTHER RESOLVED, that the Authorized Officers are hereby designated as “Agent for Service” of
the Company in connection with the Registration Statement and the filing thereof with the
Commission, and the Authorized Officers hereby are authorized to receive communications and notices
from the Commission with respect to the Registration Statement; and



FURTHER RESOLVED, that the officers of the Company be, and each of them hereby is, authorized
and directed to pay all fees, costs and expenses that may be incurred by the Company in connection
with the Registration Statement; and



FURTHER RESOLVED, that it is desirable and in the best interest of the Company that the
Securities be qualified or registered for sale in various states; that the officers of the Company
be, and each of them hereby is, authorized to determine the states in which appropriate action
shall be taken to qualify or register for sale all or such part of the Securities as they may deem
advisable; that said officers be, and each of them hereby is, authorized to perform on behalf of
the Company any and all such acts as they may deem necessary or advisable in order to comply with
the applicable laws of any such states, and in connection therewith to execute and file all
requisite papers and documents, including, but not limited to, applications, reports, surety bonds,
irrevocable consents, appointments of attorneys for service of process and resolutions; and the
execution by such officers of any such paper or document or the doing by them of any act in
connection with the foregoing matters shall conclusively establish their authority therefor from
the Company and the approval and ratification by the Company of the papers and documents so
executed and the actions so taken; and



FURTHER RESOLVED, that if, in any state where the securities to be registered or qualified for
sale to the public, or where the Company is to be registered in connection with the public offering
of the Securities, a prescribed form of resolution or resolutions is required to be adopted by the
Board of Directors, each such resolution shall be deemed to have been and hereby is adopted, and
any Officer of the Company is hereby authorized to certify the adoption of all such resolutions as
though such resolutions were now presented to and adopted by the Board of Directors; and



FURTHER RESOLVED, that the officers of the Company with the assistance of counsel be, and each
of them hereby is, authorized and directed to take all necessary steps and do all other things
necessary and appropriate to effect the listing of the Securities on NASDAQ; and



Approval of Actions




FURTHER RESOLVED, that, without limiting the foregoing, the Authorized Officers are, and each
of them hereby is, authorized and directed to proceed on behalf of the Company and to take all such
steps as are deemed necessary or appropriate, with the advice and assistance of counsel, to cause
the Company to take all such action referred to herein and to perform its obligations incident to
the registration, listing and sale of the Securities; and



FURTHER RESOLVED, that the Authorized Officers be, and each of them hereby is, authorized,
empowered and directed on behalf of and in the name of the Company, to take or cause to be taken
all such further actions and to execute and deliver or cause to be executed and delivered all such
further agreements, amendments, documents, certificates, reports, schedules, applications, notices,
letters and undertakings and to incur and pay all such fees and expenses as in their judgment shall
be necessary, proper or desirable to carry into effect the purpose and intent of any and all of the
foregoing resolutions, and that all actions heretofore taken by any officer or director of the
Company in connection with the transactions contemplated by the agreements described herein are
hereby approved, ratified and confirmed in all respects.



EXHIBIT C




FORM OF CHIEF FINANCIAL OFFICER’S CERTIFICATE




This Chief Financial Officer’s Certificate (the “Certificate”) is being delivered pursuant to
Section 7(k) of that certain Common Stock Purchase Agreement dated as of      , 2014 (the
“Common Stock Purchase Agreement”), by and between SOPHIRIS BIO INC., a British Columbia
corporation (the “Company”) and ASPIRE CAPITAL FUND, LLC, an Illinois limited liability company
(the “Buyer”), pursuant to which the Company may sell to the Buyer up to Fifteen Million Dollars
($15,000,000) of common shares in the capital of the Company (the “Common Stock”). Terms used
herein and not otherwise defined shall have the meanings ascribed to them in the Common Stock
Purchase Agreement.



The undersigned,       , Chief Financial Officer of the Company, in his capacity as
such, hereby certifies as follows:



1. I am the Chief Financial Officer of the Company and make the statements
contained in this Chief Financial Officer’s Certificate.



2. Attached hereto as Exhibit A and Exhibit B are true, correct and complete
copies of the Company’s Articles and Notice of Articles (together, “Articles”) and
Certificate of Amalgamation and Certificate of Name Change (together,
“Certificate”), in each case, as amended through the date hereof, and no action has
been taken by the Company, its directors, officers or shareholders, in contemplation
of the filing of any further amendment relating to or affecting the Articles or
Certificate.



3. Attached hereto as Exhibit C are true, correct and complete copies of the
Signing Resolutions duly adopted by the Board of Directors of the Company [by
unanimous written consent]. Such resolutions have not been amended, modified or
rescinded and remain in full force and effect and such resolutions are the only
resolutions adopted by the Company’s Board of Directors, or any committee thereof,
or the shareholders of the Company relating to or affecting (i) the entering into
and performance of the Common Stock Purchase Agreement, or the issuance, offering
and sale of the Purchase Shares and the Commitment Shares and (ii) and the
performance of the Company of its obligation under the Transaction Documents as
contemplated therein.



4. As of the date hereof, the authorized, issued and reserved capital of the
Company is as set forth on Exhibit D hereto.



IN WITNESS WHEREOF, I have hereunder signed my name on this        day of       .



      



      , Chief Financial Officer



The undersigned as President and Chief Executive Officer of SOPHIRIS BIO INC., a British
Columbia, corporation, hereby certifies that        is the duly elected, appointed,
qualified and acting Chief Financial Officer of SOPHIRIS BIO INC., and that the signature appearing
above is his genuine signature.



____________________________EXHIBIT D




FORM OF LETTER TO THE TRANSFER AGENT FOR THE ISSUANCE OF THE COMMITMENT SHARES AND INITIAL PURCHASE

SHARES AT SIGNING OF THE PURCHASE AGREEMENT




[COMPANY LETTERHEAD]




May   , 2014



[Transfer Agent]


[Address]


[Address]


Attention:



Re: Issuance of Common Stock to Aspire Capital Fund, LLC



Ladies and Gentlemen:



On behalf of SOPHIRIS BIO INC., (the “Company”), you are hereby instructed to issue as soon as
possible 694,865 shares of our common stock in the name of ASPIRE CAPITAL FUND, LLC. The share
certificate should be dated May   , 2014. I have included a true and correct copy of adopted
resolutions of the Board of Directors of the Company approving the issuance of these shares. The
shares should be issued subject to the following restrictive legend:



THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR (2) AN OPINION OF HOLDER’S COUNSEL, IN A CUSTOMARY FORM, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.



The share certificate should be sent as soon as possible via overnight mail to the following
address:




Aspire Capital Fund, LLC




155 North Wacker Drive, Suite 1600




Chicago, IL 60606




Attention: Steven G. Martin



Thank you very much for your help. Please call       , at        if you have any
questions or need anything further.



SOPHIRIS BIO INC.



BY:      




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