As filed with the Securities and Exchange Commission on September 9, 2022.
Registration Statement No. 333-267328
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
FORM F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
XORTX THERAPEUTICS INC.
(Exact name of registrant as specified in its charter)
British Columbia
(State or other jurisdiction of
incorporation or organization)
2834
(Primary Standard Industrial
Classification Code Number)
N/A
(I.R.S. Employer
Identification No.)
3710 – 33rd Street NW
Calgary, Alberta, Canada T2L 2M1
(403) 455-7727
(Address, including zip code and telephone number, including area code, of registrant’s principal executive offices)
C T Corporation
1015 15th Street N.W., Suite 1000
Washington, D.C., 20005
(202) 572-3133
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Thomas M. Rose
Troutman Pepper
Hamilton Sanders LLP
401 9th Street, N.W.
Suite 1000
Washington, DC 20004
(202) 274-2950
Rick Pawluk
Fasken Martineau
DuMoulin LLP
350 7th Avenue SW, Suite 3400
Calgary AB T2P 3N9
Canada
(587)-233-4063
Ivan Blumenthal
Mintz, Levin, Cohn,
Ferris, Glovsky and
Popeo, P.C.
666 Third Avenue
New York, NY 10017
(212) 935-3000
Scott Reeves
Ariane Young
TingleMerrett LLP
639 5 Ave SW #1250
Calgary, AB T2P 0M9
Canada
(403) 571-8000
Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement is declared effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act.
Emerging growth company ☒
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.† ☒
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.

 
EXPLANATORY NOTE
XORTX Therapeutics Inc. (the “Registrant”) is filing this Amendment No. 1 (the “Amendment”) to its Registration Statement on Form F-1 (Registration Statement No. 333 -267328) as an exhibits-only filing to file Exhibits 4.2, 4.3, 4.4 and 10.14. Accordingly, this Amendment consists only of the facing page, this explanatory note, Part II of the Registration Statement, including the signature page and the exhibit index, and the filed exhibits. The prospectus is unchanged and has been omitted.
 

 
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 6.   Indemnification of Directors and Officers
Under the BCBCA, we may indemnify an individual who:
(a)
is or was our director or officer;
(b)
is or was a director or officer (y) at our request, or (z) of another corporation at the time when such corporation is or was an affiliate of ours; or
(c)
at our request, is or was, or holds or held a position equivalent to that of a director or officer of a partnership, trust, joint venture or other unincorporated entity,
against a judgment, penalty or fine awarded or imposed in, or an amount paid in settlement of, any legal proceeding or investigative action, whether current, threatened, pending or completed, in which such eligible party is involved because of that association with us or other entity.
However, indemnification is prohibited under the BCBCA if:
(a)
such eligible party did not act honestly and in good faith with a view to our best interests (or the other entity, as the case may be);
(b)
in the case of a proceeding other than a civil proceeding, such eligible party did not have reasonable grounds for believing that such person’s conduct was lawful;
(c)
the indemnity or payment is made under an earlier agreement to indemnify or pay expenses and, at the time that the agreement to indemnify or pay expenses was made, the Company was prohibited from giving the indemnity or paying the expenses by its articles; or
(d)
the indemnity or payment is made otherwise than under an earlier agreement to indemnify or pay expenses and, at the time that the indemnity or payment is made, the Company was prohibited from giving the indemnity or paying the expenses by its articles.
We may not indemnify or pay the expenses of an eligible party in respect of an action brought against an eligible party by or on behalf of us.
The BCBCA allows us to pay, as they are incurred in advance of a final disposition of a proceeding, the expenses actually and reasonably incurred by the eligible party, provided that we receive from such eligible party an undertaking to repay the amounts advanced if it is ultimately determined that such payment is prohibited. Following the final disposition of an eligible proceeding, the BCBCA requires us to pay the expenses actually and reasonably incurred by the eligible party in respect of that proceeding if the eligible party has not been reimbursed for those expenses and is wholly successful, on the merits or otherwise, in the outcome of the proceeding, or is substantially successful on the merits in the outcome of the proceeding.
Despite the foregoing, on application by us or an eligible party, a court may:
(a)
order us to indemnify an eligible party in respect of an eligible proceeding;
(b)
order us to pay some or all of the expenses incurred by an eligible party in an eligible proceeding;
(c)
order enforcement of or any payment under an indemnification agreement;
(d)
order us to pay some or all of the expenses actually and reasonably incurred by a person in obtaining the order of the court; and
(e)
make any other order the court considers appropriate.
The BCBCA provides that we may purchase and maintain insurance for the benefit of an eligible party (or their heirs and personal or other legal representatives of the eligible party) against any liability that may be incurred by reason of the eligible party being or having been a director or officer, or in an equivalent position of ours or that of an associated corporation.
 
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Our articles provide that, subject to the BCBCA, we must indemnify our directors, former directors or alternate directors and his or her heirs and legal personal representatives against all judgments, penalties or fines awarded or imposed in, or an amount paid in settlement of, all legal proceedings, investigative actions or other eligible proceedings (whether current, threatened, pending or completed) to which such person is or may be liable, and we must, after the final disposition of a legal proceeding, investigative action or other eligible proceeding, pay the expenses (which includes costs, charges and expenses, including legal and other fees but does not include judgments, penalties, fines or amounts paid in settlement of a proceeding) actually and reasonably incurred by such person in respect of that proceeding.
We have entered into indemnity agreements with our directors and certain officers which provide, among other things, that we will indemnify him or her to the fullest extent permitted by law from and against all liabilities, costs, charges and expenses incurred as a result of his or her actions in the exercise of his or her duties as a director or officer.
Prior to completion of this offering, we intend to enter into new indemnification agreements with each of our current directors and officers. The indemnification agreements will generally require that we indemnify and hold the indemnitees harmless to the greatest extent permitted by law for liabilities arising out of the indemnitees’ service to us as directors and officers, if the indemnitees acted honestly and in good faith with a view to the best interests of the Company and, with respect to criminal and administrative actions or other non-civil proceedings that are enforced by monetary penalty, if the indemnitee had reasonable grounds to believe that his or her conduct was lawful. The indemnification agreements will also provide for the advancing of defense expenses to the indemnitees by us.
At present, we are not aware of any pending or threatened litigation or proceeding involving any of our directors, officers, employees or agents in which indemnification would be required or permitted.
The proposed form of Underwriting Agreement filed as Exhibit 1.1 to this Registration Statement provides for indemnification of our officers and directors by the underwriter against certain liabilities.
Item 7.   Recent Sales of Unregistered Securities
Set forth below is information regarding all securities issued by us without registration under the Securities Act during the past three years after giving effect to the Share Consolidation. The information presented below does not give effect to our corporate reorganization as described in the prospectus forming part of this Registration Statement. We believe that each of such issuances was exempt from registration under the Securities Act in reliance on Section 4(a)(2) of the Securities Act, Rule 701 and/or Regulation S under the Securities Act. No underwriter or underwriting discount or commission was involved in any of the transactions set forth in this Item 7.
Common Share Issuances

On February 28, 2020, we issued 1,555,317 of our common shares in a private placement, at a price of $1.64 per share, for an aggregate offering price of $2,556,320.

On February 9, 2021, we issued 2,085,687 of our common shares in a private placement, at a price of $2.935 per share, for an aggregate offering price of $6,121,572.

Since January 1, 2019, we have issued 651,566 of our common shares pursuant to the exercise of warrants, with exercise prices ranging from $1.64 to $4.70 per share, for aggregate consideration of $2,430,083.

On February 1, March 1, and March 31, 2021, we issued an aggregate of 25,551 of our common shares at a price of $3.35 per share, in exchange for services performed.

On October 15, 2021 and November 8, 2021, we issued 3,261,000 of our common shares in connection with the underwritten US IPO Offering (the “US IPO Offering”). 2,906,000 common shares were issued at closing on October 15, 2021 and 355,000 were issued in connection with a partial over-allotment exercise on November 8, 2021) at $5.11 a price per unit (US$4.13 at the October 15, 2021 Bank of Canada Daily Exchange Rate of US$1.00 = $1.2379), with each unit consisting of one common and one common share purchase warrant (“IPO Common Share Purchase Warrant”) for
 
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aggregate gross proceeds of $16,663,710. A.G.P./Alliance Global Partners acted as the representative of the underwriter and the sole book-running manager for the US IPO Offering.
Stock Option Grants

Since January 1, 2019, we have granted our employees, consultants and advisors options to purchase an aggregate of 941,005 options to acquire common shares under our equity compensation plans at exercise prices ranging from $1.64 to $3.29 per share.
Warrants

On February 28, 2020, we issued warrants to purchase an aggregate of 1,567,213 common shares for exercise prices ranging between $1.64 to $2.94 per share, in connection with the common share issuance of the same date referenced above. As of the date of this registration statement, all of the warrants have either been exercised or have expired.

On February 9, 2021, we issued warrants to purchase an aggregate of 2,144,005 common shares for an exercise price of $4.70 per share, in connection with the common share issuance of the same date referenced above. As of the date of this registration statement, none of the warrants have been exercised.

On October 15, 2021, we issued IPO Common Share Purchase Warrants to purchase an aggregate of 3,341,900 common shares for an exercise price of $5.90 (U.S. $4.77 at the October 15, 2021 Bank of Canada Daily Exchange Rate) per share, in connection with the underwritten US IPO Offering. We issued 2,906,000 IPO Common Share Purchase Warrants in connection with the U.S. IPO Offering units and an additional 435,900 Common Share Purchase Warrants in connection with A.G.P./Alliance Global Partners’ exercise of its option for the purchase of up to 435,900 additional Common Share Purchase Warrants that same day.
Other than the issuances in connection with the U.S. IPO Offering on October 15, 2021, none of the foregoing transactions involved any underwriters, underwriting discounts or commissions or any public offering. All recipients had adequate access, through their relationships with us, to information about us. The sales of these securities were made without any general solicitation or advertising.
Item 8.   Exhibits and Financial Statement Schedules
The exhibits listed in the exhibits index, appearing elsewhere in this Registration Statement, have been filed as part of this Registration Statement.
All schedules have been omitted because they are not required, are not applicable or the information is otherwise set forth in the financial statements and related notes thereto.
 
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EXHIBIT INDEX
Exhibit
Number
Description
1.1**
3.1**
4.1**
4.2*
4.3*
4.4*
4.5**
4.6** Form of IPO Common Share Purchase Warrant (incorporated by reference to Exhibit 4.1 to the Company’s Amendment No. 1 to the Registration Statement on Form F-1 filed on September 16, 2021).
4.7** Form of IPO Compensation Warrant (incorporated by reference to Exhibit 4.4 to the Company’s Amendment No. 1 to the Registration Statement on Form F-1 filed on September 16, 2021).
5.1**
5.2**
10.1%** Investigator Initiated-Clinical Trial Agreement, dated August 3, 2020, by and between the Company and Icahn School of Medicine at Mount Sinai (incorporated by reference to Exhibit 10.1 to the Company’s Draft Registration Statement on Form F-1 filed on May 26, 2021)
10.2#** Employment Agreement, dated August 1, 2021, by and between the Company and Allen Davidoff (incorporated by reference to Exhibit 10.2 to the Company’s Amendment No. 1 to the Registration Statement on Form F-1 filed on September 16, 2021)
10.3** Master Services Agreement, dated July 20, 2017, by and between the Company and Cato Research Canada Inc. (incorporated by reference to Exhibit 10.3 to the Company’s Draft Registration Statement on Form F-1 filed on May 26, 2021)
10.4#%** Consulting Agreement, dated February 1, 2021, by and between the Company and David Sans (incorporated by reference to Exhibit 10.4 to the Company’s Draft Registration Statement on Form F-1 filed on May 26, 2021)
10.5** Consulting Agreement, dated March 1, 2021, by and between the Company and 1282803 Ontario Inc. (incorporated by reference to Exhibit 10.5 to the Company’s Amendment No. 2 to the Registration Statement on Form F-1 filed on October 4, 2021)
10.6%** Master Service and Technology Agreement, dated February 25, 2019, by and between the Company and Prevail InfoWorks, Inc. (incorporated by reference to Exhibit 10.6 to the Company’s Draft Registration Statement on Form F-1 filed on May 26, 2021)
10.7%** Side Letter to Master Service and Technology Agreement, dated February 24, 2020, by and between the Company and Prevail InfoWorks, Inc. (incorporated by reference to Exhibit 10.7 to the Company’s Draft Registration Statement on Form F-1 filed on May 26, 2021)
10.8%** Subscription Agreement, dated February 28, 2020, by and between the Company and Prevail Partners LLC (incorporated by reference to Exhibit 10.8 to the Company’s Draft Registration Statement on Form F-1 filed on May 26, 2021)
10.9#** Consulting Agreement, dated July 1, 2021, by and between the Company and Next Level Consultants Inc. (incorporated by reference to Exhibit 10.10 to the Company’s Amendment No. 1 to the Registration Statement on Form F-1 filed on July 21, 2021)
 
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Exhibit
Number
Description
10.10%** Standard Exclusive License Agreement with Know How dated effective as of June 23, 2014, by and between the Company and the University of Florida Research Foundation, Inc. (incorporated by reference to Exhibit 10.11 to the Company’s Registration Statement on Form F-1 filed on August 12, 2021)
10.11#** Consulting Agreement, dated July 1, 2021, by and between the Company and Haworth Biopharmaceutical Consulting Services Inc. (incorporated by reference to Exhibit 10.12 to the Company’s Amendment No. 1 to the Registration Statement on Form F-1 filed on July 21, 2021)
10.12%** Patent Rights Purchase Agreement, dated effective as of December 5, 2012, by and between Dr. Richard Johnson, Dr. Takahiko Nakagawa, and Revascor Inc. (incorporated by reference to Exhibit 10.13 to the Company’s Registration Statement on Form F-1 filed on August 12, 2021)
10.13** Form of Warrant Agency Agreement with Continental Stock Transfer & Trust Company (incorporated by reference to Exhibit 10.14 to the Company’s Amendment No. 1 to the Registration Statement on Form F-1 filed on September 16, 2021)
10.14* Form of Warrant Agency Agreement
10.15#** Consulting Agreement, dated March 1, 2018, by and between the Company and W.B. Rowlands & Co. Ltd. (incorporated by reference to Exhibit 10.15 to the Company’s Amendment No. 1 to the Registration Statement on Form F-1 filed on September 16, 2021)
10.16#** Consulting Services Agreement, dated effective December 20, 2021, by and between the Company, W.B. Rowlands & Co. Ltd., and William Bruce Rowlands (incorporated by reference to Exhibit 4.15 to the Company’s Annual Report on Form 20-F filed on May 3, 2022)
10.17#** Stock Option Plan (incorporated by reference as Schedule B to Exhibit 99.2 to the Company’s Form 6-K filed on November 23, 2021)
10.18%** Patent Rights Purchase Agreement dated effective May 26, 2014 between Dr. Richard Johnson, Dr. Takahiko Nakagawa and the Company (incorporated by reference to Exhibit 4.17 to the Company’s Annual Report on Form 20-F filed on May 3, 2022)
10.19%** Equity Agreement dated effective June 23, 2014 between the Company and the University of Florida Research Foundation, Inc. (incorporated by reference to Exhibit 4.18 to the Company’s Annual Report on Form 20-F filed on May 3, 2022)
10.20%** Sponsored Research Agreement dated May 27, 2021 between the Regents of the University of Colorado and the Company (incorporated by reference to Exhibit 4.19 to the Company’s Annual Report on Form 20-F filed on May 3, 2022)
10.21%** Combined Master Services Agreement made on July 19, 2021 between the Company and Quotient Sciences Limited (incorporated by reference to Exhibit 4.20 to the Company’s Annual Report on Form 20-F filed on May 3, 2022)
10.22** Development and Clinical Manufacturing Services Agreement dated effective August 17, 2021 between the Company and Lonza Ltd. (incorporated by reference to Exhibit 4.21 to the Company’s Annual Report on Form 20-F filed on May 3, 2022)
10.23** Global Master Services Agreement between Altasciences Company Inc., (a contract research organization) and the Company dated effective December 22, 2021 (incorporated by reference to Exhibit 4.22 to the Company’s Annual Report on Form 20-F filed on May 3, 2022)
10.24** Proposal for XORTX Therapeutics Inc., dated February 21, 2022, by and between the Company and Covar Pharmaceuticals Inc. (incorporated by reference to Exhibit 4.23 to the Company’s Annual Report on Form 20-F filed on May 3, 2022)
10.25** Proposal for XORTX Therapeutics Inc., dated December 6, 2021, by and between the Company and Covar Pharmaceuticals Inc. (incorporated by reference to Exhibit 4.24 to the Company’s Annual Report on Form 20-F filed on May 3, 2022)
 
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Exhibit
Number
Description
10.26%** Proposal, dated as of March 29, 2022, by and between the Company and Curia Spain, S.A.U. (incorporated by reference to Exhibit 4.25 to the Company’s Annual Report on Form 20-F filed on May 3, 2022)
10.27#** Consulting Amending Agreement, dated as of January 27, 2022, by and between the Company and Stephen Haworth (incorporated by reference to Exhibit 4.26 to the Company’s Annual Report on Form 20-F filed on May 3, 2022)
10.28#** Agreement, dated as of November 1, 2021, by and between the Company and Amar Keshri (incorporated by reference to Exhibit 4.27 to the Company’s Annual Report on Form 20-F filed on May 3, 2022)
21.1**
23.1**
23.2**
23.3**
24.1**
107**
*
Filed herewith.
**
Previously filed.
%
Portions of this Exhibit have been omitted from the document because it is both not material and the type of information that the Registrant treats as private or confidential.
#
Indicates management contract or compensatory plan.
Item 9.   Undertakings
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described in Item 6 hereof, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes:

To provide the underwriter specified in the underwriting agreement, at the closing, certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser.

That for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4), or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective.

That for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-1 and has duly caused this Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Calgary, Provice of Alberta, Canada, on September 9, 2022.
XORTX Therapeutics Inc.
By:
/s/ Allen Davidoff
Name:
Allen Davidoff
Title:
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1 to the Registration Statement has been signed by the following persons in the capacities and on September 9, 2022.
Signatures
Title
/s/ Allen Davidoff
Allen Davidoff
President and Chief Executive Officer and Director (Principal Executive Officer)
/s/ Amar Keshri
Amar Keshri
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
*
William Farley
Director
*
Anthony Giovinazzo
Director
*
Ian Klassen
Director
*
Jacqueline Le Saux
Director
*
Raymond Pratt
Director
*
Paul Van Damme
Director
*By: /s/ Allen Davidoff
Name: Allen Davidoff
Title: Attorney-in-fact
 

 
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned certifies that it is the duly authorized United States representative of the registrant and has duly caused this Registration Statement on Form F-1 to be signed by the undersigned, thereunto duly authorized, on September 9, 2022.
PUGLISI & ASSOCIATES
By:
/s/ Donald J. Puglisi
Name:
Donald J. Puglisi
Title:
Managing Director