Exhibit 1.1
28,000,000 Shares
Marinus Pharmaceuticals, Inc.
UNDERWRITING AGREEMENT
December 11, 2019
Oppenheimer & Co. Inc.
As Representative of the Several Underwriters
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Introductory. Marinus Pharmaceuticals,
Inc. a Delaware corporation (the “Company”), proposes to issue and sell to the several underwriters named in
Schedule A (the “Underwriters”) an aggregate of 28,000,000 shares of its common stock, par value $0.001
per share (the “Shares”). The 28,000,000 Shares to be sold by the Company are called the “Firm
Shares.” In addition, the Company has granted to the Underwriters an option to purchase up to an additional 4,200,000
Shares as provided in Section 2. The additional 4,200,000 Shares to be sold by the Company pursuant to such option are collectively
called the “Optional Shares.” The Firm Shares and, if and to the extent such option is exercised, the
Optional Shares are collectively called the “Offered Shares.” Oppenheimer & Co. Inc. (“Oppenheimer”)
has agreed to act as representative of the several Underwriters (in such capacity, the “Representative”) in
connection with the offering and sale of the Offered Shares. To the extent there are no additional underwriters listed on
Schedule A, the term “Representative” as used herein shall mean you, as Underwriter and the term “Underwriters”
shall mean either the singular or the plural, as the context requires.
Concurrently with the sale of the Offered
Shares, the Company will sell $30,000,000 of shares of Series A Participating Convertible Preferred Stock, par value $0.001 per
share (the “Series A Preferred Stock”), which will be convertible into Shares, in a private placement at a conversion
price per share of $1.25 (the “Concurrent Private Placement”).
The Company has prepared and filed with
the Securities and Exchange Commission (the “Commission”) a shelf registration statement on Form S-3, File No.
333-221243, including a base prospectus (the “Base Prospectus”) to be used in connection with the public offering
and sale of the Offered Shares. Such registration statement, as amended, including the financial statements, exhibits and
schedules thereto, in the form in which it became effective under the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Securities Act”), including all documents incorporated or deemed
to be incorporated by reference therein and any information deemed to be a part thereof at the time of effectiveness pursuant to
Rule 430A or 430B under the Securities Act, is called the “Registration Statement.” Any registration statement
filed by the Company pursuant to Rule 462(b) under the Securities Act in connection with the offer and sale of the Offered Shares
is called the “Rule 462(b) Registration Statement,” and from and after the date and time of filing of any such
Rule 462(b) Registration Statement the term “Registration Statement” shall include the Rule 462(b) Registration Statement.
The preliminary prospectus supplement dated December 10, 2019 describing the Offered Shares and the offering thereof (the “Preliminary
Prospectus Supplement”), together with the Base Prospectus, is called the “Preliminary Prospectus,”
and the Preliminary Prospectus and any other prospectus supplement to the Base Prospectus in preliminary form that describes the
Offered Shares and the offering thereof and is used prior to the filing of the Prospectus (as defined below), together with the
Base Prospectus, is called a “preliminary prospectus.” As used herein, the term “Prospectus”
shall mean the final prospectus supplement to the Base Prospectus that describes the Offered Shares and the offering thereof (the
“Final Prospectus Supplement”), together with the Base Prospectus, in the form first used by the Underwriters
to confirm sales of the Offered Shares or in the form first made available to the Underwriters by the Company to meet requests
of purchasers pursuant to Rule 173 under the Securities Act. References herein to the Preliminary Prospectus, any preliminary
prospectus and the Prospectus shall refer to both the prospectus supplement and the Base Prospectus components of such prospectus.
As used herein, “Applicable Time” is 8:00a.m. (New York City time) on December 11, 2019. As used herein,
“free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, and “Time
of Sale Prospectus” means the Preliminary Prospectus, as amended or supplemented immediately prior to the Applicable
Time, together with the free writing prospectuses, if any, identified in Schedule B-1 hereto and the pricing information
identified in Schedule B-2 hereto. As used herein, “Road Show” means a “road show”
(as defined in Rule 433 under the Securities Act) relating to the offering of the Offered Shares contemplated hereby that is a
“written communication” (as defined in Rule 405 under the Securities Act). As used herein, “Section
5(d) Written Communication” means each written communication (within the meaning of Rule 405 under the Securities Act)
that is made in reliance on Section 5(d) of the Securities Act by the Company or any person authorized to act on behalf of the
Company to one or more potential investors that are qualified institutional buyers (“QIBs”) and/or institutions
that are accredited investors (“IAIs”), as such terms are respectively defined in Rule 144A and Rule 501(a)
under the Securities Act, to determine whether such investors might have an interest in the offering of the Offered Shares; “Section
5(d) Oral Communication” means each oral communication, if any, made in reliance on Section 5(d) of the Securities Act
by the Company or any person authorized to act on behalf of the Company made to one or more QIBs and/or one or more IAIs to determine
whether such investors might have an interest in the offering of the Offered Shares; “Marketing Materials” means
any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of
the offering of the Offered Shares, including any roadshow or investor presentations made to investors by the Company (whether
in person or electronically); and “Permitted Section 5(d) Communication” means the Section 5(d) Written Communication(s)
and Marketing Materials listed on Schedule C attached hereto.
All references in this Agreement to the
Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus and the Prospectus shall include
the documents incorporated or deemed to be incorporated by reference therein. All references in this Agreement to financial
statements and schedules and other information which are “contained,” “included” or “stated”
in, or “part of” the Registration Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus, any
preliminary prospectus, the Base Prospectus, the Time of Sale Prospectus or the Prospectus, and all other references of like import,
shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to
be incorporated by reference in the Registration Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus,
any preliminary prospectus, the Base Prospectus, the Time of Sale Prospectus or the Prospectus, as the case may be. All references
in this Agreement to amendments or supplements to the Registration Statement, the Preliminary Prospectus, any preliminary prospectus,
the Base Prospectus, the Time of Sale Prospectus or the Prospectus shall be deemed to mean and include the filing of any document
under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the
“Exchange Act”) that is or is deemed to be incorporated by reference in the Registration Statement, the Preliminary
Prospectus, any preliminary prospectus, the Base Prospectus, or the Prospectus, as the case may be. All references in this
Agreement to (i) the Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus or the
Prospectus, any amendments or supplements to any of the foregoing, or any free writing prospectus, shall include any copy thereof
filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”)
and (ii) the Prospectus shall be deemed to include any “electronic Prospectus” provided for use in connection with
the offering of the Offered Shares as contemplated by Section 3(n) of this Agreement.
References to the “Company”
in this Agreement shall include the Subsidiary (as defined herein) unless the context otherwise requires.
The Company hereby confirms its agreements
with the Underwriters as follows:
Section 1. Representations
and Warranties.
The Company hereby represents, warrants
and covenants to each Underwriter, as of the date of this Agreement, as of the First Closing Date (as hereinafter defined) and
as of each Option Closing Date (as hereinafter defined), if any, as follows:
(a) Compliance
with Registration Requirements. The Registration Statement has become effective under the Securities Act. The
Company has complied, to the Commission’s satisfaction, with all requests of the Commission for additional or supplemental
information, if any. No stop order suspending the effectiveness of the Registration Statement is in effect and no proceedings
for such purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the
Commission. At the time the Company’s Annual Report on Form 10-K for the year ended December 31, 2018 (the “Annual
Report”) was filed with the Commission, or, if later, at the time the Registration Statement was originally filed with
the Commission, the Company met the then-applicable requirements for use of Form S-3 under the Securities Act, including General
Instruction I.B.1. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the
Time of Sale Prospectus and the Prospectus, at the time they were or hereafter are filed with the Commission, or became effective
under the Exchange Act, as the case may be, complied and will comply in all material respects with the requirements of the Exchange
Act.
(b) Disclosure.
Each preliminary prospectus and the Prospectus when filed complied in all material respects with the Securities Act and, if filed
by electronic transmission pursuant to EDGAR, was identical (except as may be permitted by Regulation S-T under the Securities
Act) to the copy thereof delivered to the Underwriters for use in connection with the offer and sale of the Offered Shares.
Each of the Registration Statement and any post-effective amendment thereto, at the time it became or becomes effective, complied
and will comply in all material respects with the Securities Act and did not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
As of the Applicable Time, the Time of Sale Prospectus did not, and at the First Closing Date (as defined in Section 2) and at
each applicable Option Closing Date (as defined in Section 2), will not, contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading. The Prospectus, as of its date, did not, and at the First Closing Date and at each applicable Option
Closing Date, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations
and warranties set forth in the three immediately preceding sentences do not apply to statements in or omissions from the Registration
Statement or any post-effective amendment thereto, or the Prospectus or the Time of Sale Prospectus, or any amendments or supplements
thereto, made in reliance upon and in conformity with written information relating to any Underwriter furnished to the Company
in writing by the Representative expressly for use therein, it being understood and agreed that the only such information consists
of the information described in Section 9(b) below. There are no contracts or other documents required to be described in
the Time of Sale Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement which have not been described
or filed as required.
(c) Free
Writing Prospectuses; Road Show. As of the determination date referenced in Rule 164(h) under the Securities Act,
the Company was not, is not or will not be (as applicable) an “ineligible issuer” in connection with the offering of
the Offered Shares pursuant to Rules 164, 405 and 433 under the Securities Act. Each free writing prospectus that the Company
is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance
with the requirements of the Securities Act. Each free writing prospectus that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company
complies or will comply in all material respects with the requirements of Rule 433 under the Securities Act, including timely filing
with the Commission or retention where required and legending, and each such free writing prospectus, as of its issue date and
at all subsequent times through the completion of the public offer and sale of the Offered Shares did not, does not and will not
include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement,
the Prospectus or any preliminary prospectus and not superseded or modified. Except for the free writing prospectuses, if
any, identified in Schedule B-1, and electronic road shows, if any, furnished to you before first use, the Company has not
prepared, used or referred to, and will not, without your prior written consent, prepare, use or refer to, any free writing prospectus.
Each Road Show, when considered together with the Time of Sale Prospectus, did not, as of the Applicable Time, contain any untrue
statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(d) Distribution
of Offering Material By the Company. Prior to the later of (i) the expiration or termination of the option granted
to the several Underwriters in Section 2 and (ii) the completion of the Underwriters’ distribution of the Offered Shares,
the Company has not distributed and will not distribute any offering material in connection with the offering and sale of the Offered
Shares other than the Registration Statement, the Time of Sale Prospectus, the Prospectus or any free writing prospectus reviewed
and consented to by the Representatives, the free writing prospectuses, if any, identified on Schedule B-1 hereto and any
Permitted Section 5(d) Communications.
(e) The
Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(f) Authorization
of the Offered Shares. The Offered Shares have been duly and validly authorized and, when issued and delivered to
and paid for by the Underwriters in accordance with the terms of this Agreement, will be duly and validly issued and fully paid
and non-assessable and will conform to the descriptions thereof contained in the Time of Sale Prospectus and the Prospectus; and
the issuance of such Offered Shares is not subject to any preemptive or similar rights that have not been duly waived.
(g) No
Applicable Registration or Other Similar Rights. There are no persons with registration rights or other similar rights
to have securities registered pursuant to the Registration Statement or otherwise registered by the Company under the Securities
Act, which rights have not been duly waived in writing.
(h) No
Material Adverse Change. Except as otherwise disclosed in the Registration Statement, the Time of Sale Prospectus
and the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement, the Time
of Sale Prospectus and the Prospectus: (i) there has been no material adverse change, or any development that could reasonably
be expected to result in a material adverse change, in the condition, financial or otherwise, or in the earnings, business, properties,
operations, assets, liabilities or prospects, whether or not arising from transactions in the ordinary course of business,
of the Company (any such change being referred to herein as a “Material Adverse Change”); (ii) the Company has
not incurred any material liability or obligation, indirect, direct or contingent, including without limitation any losses or interference
with its business from fire, explosion, flood, earthquakes, accident or other calamity, whether or not covered by insurance, or
from any strike, labor dispute or court or governmental action, order or decree, that are material, individually or in the aggregate,
to the Company, or entered into any transactions not in the ordinary course of business; and (iii) there has not been any change
in the capital stock (other than the issuance of shares of Common Stock upon the exercise of stock options described as outstanding
in, or the grant options, restricted stock or other equity-based awards under Company’s existing equity incentive plans described
in, the Registration Statement, Time of Sale Prospectus and Prospectus) or any material increase in any short-term or long-term
indebtedness of the Company and there has been no dividend or distribution of any kind declared, paid or made by the Company on
any class of capital stock, or any repurchase or redemption by the Company of any class of capital stock.
(i) Independent
Accountants. KPMG LLP, who have certified certain financial statements of the Company, is an independent registered public
accounting firm as required by the Securities Act and the Public Company Accounting Oversight Board (United States). The
financial statements, together with related schedules and notes, filed with the Commission as a part of the Registration Statement,
the Time of Sale Prospectus and the Prospectus comply in all material respects with the requirements of the Securities Act and
present fairly in all material respects the financial position, results of operations, cash flows and changes in stockholders’
equity of the Company on the basis stated in the Registration Statement, the Time of Sale Prospectus and the Prospectus at the
respective dates or for the respective periods to which they apply and such financial statements and related schedules and notes
have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved,
except as disclosed therein. Except as otherwise included therein, no historical or pro forma financial statements or supporting
schedules are required to be included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus or
the Prospectus under the Securities Act. The interactive data in eXtensible Business Reporting Language included or incorporated
by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared
in accordance with the Commission’s rules and guidelines applicable thereto. To the Company’s knowledge, no person
who has been suspended or barred from being associated with a registered public accounting firm, or who has failed to comply with
any sanction pursuant to Rule 5300 promulgated by the PCAOB, has participated in or otherwise aided the preparation of, or audited,
the financial statements, supporting schedules or other financial data filed with the Commission as a part of the Registration
Statement, the Time of Sale Prospectus and the Prospectus.
(j) Company’s
Accounting System. The Company has made and keeps books, records and accounts, which, in reasonable detail, accurately
and fairly reflect the transactions and dispositions of the assets of the Company. The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (1) transactions are executed in accordance with management’s general
or specific authorizations; (2) transactions are recorded as necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain accountability for assets; (3) access to assets is permitted only
in accordance with management’s general or specific authorization; (4) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (5) the interactive
data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Time of
Sale Prospectus and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance
with the Commission’s rules and guidelines applicable thereto.
(k) Disclosure
Controls and Procedures; Deficiencies in or Changes to Internal Control Over Financial Reporting. The Company maintains
disclosure controls and procedures (as such term is defined in Rule 13a-15 (e) of the Exchange Act) that comply with the requirements
of the Exchange Act; such disclosure controls and procedures are effective. Since the date of the latest audited financial statements
included in the Registration Statement, the Time of Sale Prospectus and the Prospectus, (a) the Company has not been advised of
(1) any significant deficiencies in the design or operation of internal controls that could adversely affect the ability of the
Company to record, process, summarize and report financial data, or any material weaknesses in internal controls and (2) any fraud,
whether or not material, that involves management or other employees who have a significant role in the internal controls of the
Company, and (b) since that date, there has been no change in the Company’s internal control over financial reporting that
has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting
(l) Incorporation
and Good Standing of the Company. The Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own, lease and operate
its properties and conduct its business as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus
and to enter into and perform its obligations under this Agreement, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, except where the failure so to qualify or be in good standing would
not have a material adverse effect on the condition (financial or other), earnings, business, properties, operations, assets, liabilities
or prospects of the Company (a “Material Adverse Effect”).
(m) Subsidiaries.
The Company does not have any subsidiaries and does not own or control, directly or indirectly, any corporation, association or
other entity, other than Marinus Pharmaceuticals International Ltd., a Bermuda company and wholly owned subsidiary of the Company
(the “Subsidiary”). The Subsidiary has been duly incorporated (or organized) and is validly existing as a corporation
(or other organization) in good standing under the laws of the jurisdiction of its incorporation (or organization), with power
and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the
Time of Sale Prospectus and the Prospectus. All of the issued and outstanding capital stock (or other ownership interests) of the
Subsidiary has been duly and validly authorized and issued, is fully paid and non-assessable and is owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(n) Capitalization
and Other Capital Stock Matters. The Company has an authorized capitalization as set forth in the Registration Statement,
the Time of Sale Prospectus and the Prospectus, and all of the issued and outstanding shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable and conform to the descriptions thereof contained
in the Time of Sale Prospectus; and none of the issued and outstanding shares of capital stock of the Company are subject to any
preemptive or similar rights.
(o) Stock
Exchange Listing. The Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act and are listed
on The NASDAQ Global Market (the “NASDAQ”), and the Company has taken no action designed to, or likely to have
the effect of, terminating the registration of the Shares under the Exchange Act or delisting the Shares from the NASDAQ, nor has
the Company received any notification that the Commission or the NASDAQ is contemplating terminating such registration or listing.
To the Company’s knowledge, it is in compliance with all applicable listing requirements of NASDAQ.
(p) Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. The issue and sale of the Offered Shares,
the execution of this Agreement by the Company, the consummation of the transactions herein contemplated and the consummation of
the Concurrent Private Placement will not (1) conflict with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which
the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, (2)
result in any violation of the provisions of the certificate of incorporation or by-laws of the Company or (3) result in any violation
of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company
or any of its properties, except, in the case of clauses (1) and (3) for any such conflict, violation, breach or default that would
not have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue and sale of the Offered Shares, the consummation by the Company
of the transactions contemplated by this Agreement, or the consummation of the Concurrent Private Placement, except the registration
under the Securities Act of the Offered Shares and such consents, approvals, authorizations, registrations or qualifications as
may be required by the Financial Industry Regulatory Authority, Inc. (“FINRA”) or under state securities or
Blue Sky laws in connection with the purchase and distribution of the Offered Shares by the Underwriters.
(q) Compliance
with Laws. The Company maintains written policies and procedures reasonably designed to maintain itself and its business
activities in substantial compliance with the laws, ordinances, administrative and governmental rules and regulations applicable
to the Company. The Company is not (1) in violation of its certificate of incorporation or bylaws or (2) in violation of any law,
ordinance, administrative or governmental rule or regulation applicable to the Company, or (3) in violation of any decree of any
court or governmental agency or body having jurisdiction over the Company, or (4) in default in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any agreement, indenture,
lease or other instrument to which the Company is a party or by which it or any of its properties may be bound, except, in the
case of clauses (2), (3) and (4), where any such violation or default, individually or in the aggregate, would not have a Material
Adverse Effect.
(r) No
Material Actions or Proceedings. Other than as set forth in the Registration Statement, the Time of Sale Prospectus
and the Prospectus, there are no legal or governmental proceedings pending to which the Company is a party or of which any property
of the Company is the subject which, if determined adversely to the Company, individually or in the aggregate, would have or may
reasonably be expected to have a Material Adverse Effect, or would prevent or impair the consummation of (i) the transactions contemplated
by this Agreement or (ii) the Concurrent Private Placement, or which are required to be described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus; and, to the Company’s knowledge, no such proceedings are threatened or contemplated
by governmental authorities or others. No material labor dispute with the employees of the Company exists, or, to the knowledge
of the Company, is imminent. The Company is not aware of any existing or imminent labor disturbance by the employees of any
of its principal suppliers, manufacturers, customers or contractors, which, individually or in the aggregate, may reasonably be
expected to result in a Material Adverse Effect.
(s) Intellectual
Property Rights. The Company owns or has obtained all necessary licenses for the patents, patent applications, patent
rights, inventions, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names, and other intellectual property (collectively “Intellectual
Property”) described in the Registration Statement, the Time of Sale Prospectus and the Prospectus as being owned or
licensed by it or which are necessary for the conduct of its business as currently conducted or as currently proposed to be conducted.
Except as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, to the knowledge of the Company:
(i) there are no third parties who have rights to any Intellectual Property; and (ii) there is no infringement by third parties
of any Intellectual Property. There is no pending or, to the knowledge of the Company, threatened action, suit, proceeding
or claim by others: (A) challenging the Company’s rights in or to any Intellectual Property, and the Company is unaware of
any facts which would form a reasonable basis for any such action, suit, proceeding or claim; (B) challenging the validity, enforceability
or scope of any Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such
action, suit, proceeding or claim; or (C) asserting that the Company infringes or otherwise violates, or would, upon the commercialization
of any product or service described in the Registration Statement, the Time of Sale Prospectus and the Prospectus as under development,
infringe or violate, any copyright, patent, trademark, trade name, service mark, copyright, trade secret or other proprietary rights
of others, and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or
claim. The Company has taken all steps reasonably necessary to secure its interest in the Company’s Intellectual Property,
including obtaining all necessary assignments from each of its employees, consultants and contractors pursuant to a written agreement
containing a present tense assignment of all Intellectual Property created by such employee, consultant or contractor. The Company
has taken commercially reasonable steps to protect and maintain all Company owned Intellectual Property, including without limitation
to preserve the confidentiality of any trade secrets. All material Intellectual Property owned by or licensed to the Company is
valid and enforceable. The Company is not in violation of any Company License Agreements (as defined below). The license agreements
by which the Company has been licensed Intellectual Property owned by third parties (“Company License Agreements”)
are in full force and effect and constitute legal, valid and binding obligations of Company, and to the knowledge of the Company,
the other parties thereto.
(t) All
Necessary Permits, etc. The Company possesses all permits, licenses, approvals, consents and other authorizations
(collectively, “Permits”) issued by the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the businesses now operated by it, except where the failure to possess such permit, license, approval,
consent or authorization would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
the Company is in compliance with the terms and conditions of all such Permits and all of the Permits are valid and in full force
and effect, except, in each case, where the failure so to comply or where the invalidity of such Permits or the failure of such
Permits to be in full force and effect, individually or in the aggregate, would not have a Material Adverse Effect; and the Company
has not received any notice of proceedings relating to the revocation or material modification of any such Permits.
(u) Title
to Properties. The Company has good and marketable title to all real and personal property owned by it, in each case
free and clear of all liens, encumbrances and defects except such as are described in the Registration Statement, the Time of Sale
Prospectus and the Prospectus 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 real property and buildings held under lease by the Company
are held under valid, subsisting and enforceable leases with such exceptions as are not material and do not materially interfere
with the use made and proposed to be made of such property and buildings by the Company.
(v) Tax
Law Compliance. All United States federal, state and foreign income and franchise tax returns and other material
tax returns of the Company required by law to be filed have been filed and such tax returns are true, complete and correct in all
material respects. All taxes required to be paid by the Company, and any related or similar assessments, fines or penalties levied,
which are due and payable, have been paid, except assessments against which appeals have been or will be promptly taken and as
to which adequate reserves in conformity with generally accepted accounting principles have been provided. The charges, accruals
and reserves on the books of the Company in respect of any income and corporation tax liability for any years not finally determined
are, in conformity with generally accepted accounting principles, adequate to meet any assessments or re-assessments for additional
income tax for any years not finally determined.
(w) Insurance.
The Company is insured by insurers of recognized financial responsibility against such losses and risks (including without limitation
risks related to clinical trials and product liability) and in such amounts as are prudent and customary in the businesses in which
it is engaged; the Company has not been refused any insurance coverage sought or applied for; and the Company has no reason to
believe that it will not be able 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 have a Material Adverse Effect.
(x) Compliance
with Environmental Laws. The Company is not in violation of any statute or any rule, regulation, decision or order
of any governmental agency or body or any court, domestic or foreign, relating to the use, production, disposal or release of hazardous
or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances
(collectively, “environmental laws”), does not own or operate any real property contaminated with any substance
that is subject to any environmental laws, is not liable for any off-site disposal or contamination pursuant to any environmental
laws, and is not subject to any claim relating to any environmental laws, which violation, contamination, liability or claim, individually
or in the aggregate, would have a Material Adverse Effect; and the Company is not aware of any pending investigation which might
reasonably be expected to lead to such a claim.
(y) ERISA
Compliance. Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed to by the Company for employees
or former employees of the Company and its affiliates has been maintained in compliance with its terms and the requirements of
any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Internal Revenue Code of 1986,
as amended (the “Code”), except to the extent that failure to so comply, individually or in the aggregate, would
not have a Material Adverse Effect. No prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975
of the Code has occurred with respect to any such plan excluding transactions effected pursuant to a statutory or administrative
exemption.
(z) Company
Not an “Investment Company.” The Company is not and, after giving effect to the offering and sale of
the Shares as contemplated herein, the offering of the Preferred Stock in the Concurrent Private Placement and the application
of the net proceeds therefrom as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, will
not be an “investment company”, as such term is defined in the Investment Company Act of 1940, as amended (the “Investment
Company Act”).
(aa) No
Price Stabilization or Manipulation; Compliance with Regulation M. The Company has not taken, directly or indirectly,
any action designed to or that might cause or result in stabilization or manipulation of the price of the Shares or of any “reference
security” (as defined in Rule 100 of Regulation M under the Exchange Act (“Regulation M”)) with respect
to the Shares, whether to facilitate the sale or resale of the Offered Shares or otherwise, and has taken no action which would
directly or indirectly violate Regulation M.
(bb) Related-Party
Transactions. There are no relationships or related-party transactions involving the Company or any other person
required to be described in the Registration Statement, the Time of Sale Prospectus and the Prospectus which have not been described
as required.
(cc) FINRA
Matters. All of the information provided to the Underwriters or to counsel for the Underwriters by the Company, its
counsel, its officers and directors and the holders of any securities (debt or equity) or options to acquire any securities of
the Company in connection with the offering of the Offered Shares and the Concurrent Private Placement is true, complete, correct
and compliant in all material respects with FINRA’s rules and any letters, filings or other supplemental information provided
to FINRA pursuant to FINRA Rules or NASD Conduct Rules is true, complete and correct in all material respects.
(dd) Parties
to Lock-Up Agreements. The Company has furnished to the Underwriters a letter agreement in the form attached hereto
as Exhibit A (the “Lock-up Agreement”) from each of the persons listed on Exhibit B. Such
Exhibit B lists under an appropriate caption the directors and officers of the Company. If any additional persons
shall become directors or officers of the Company prior to the end of the Company Lock-up Period (as defined below), the Company
shall cause each such person, prior to or contemporaneously with their appointment or election as a director or officer of the
Company, to execute and deliver to the Representative a Lock-up Agreement.
(ee) Statistical
and Market-Related Data. The statistical and market and industry-related data included in the Registration Statement,
the Time of Sale Prospectus or the Prospectus are based on or derived from sources which the Company believes to be reliable and
accurate or represent the Company’s good faith estimates that are made on the basis of data derived from such sources, and
the Company has obtained the written consent to the use of such data from sources to the extent required.
(ff) Foreign
Corrupt Practices Act. Neither the Company nor, to the knowledge of the Company, any director, officer, agent, employee,
affiliate or other person acting on behalf of the Company has, in the course of its actions for, or on behalf of, the Company (i)
used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity;
(ii) made any direct or indirect unlawful payment to any domestic government official, “foreign official” (as defined
in the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”)
or employee from corporate funds; (iii) violated or is in violation of any provision of the FCPA or any applicable non-U.S. anti-bribery
statute or regulation; or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to
any domestic government official, such foreign official or employee; and the Company and, to the knowledge of the Company, the
Company’s controlled affiliates have conducted their respective businesses in compliance with the FCPA and have instituted
and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance
therewith.
(gg) Money
Laundering Laws. The operations of the Company are, and have been conducted at all times, in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar
applicable rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body
or any arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(hh) OFAC.
Neither the Company nor, to the knowledge of the Company, after due inquiry, any director, officer, agent, employee, affiliate
or person acting on behalf of the Company is currently subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds
of this offering or the Concurrent Private Placement, or lend, contribute or otherwise make available such proceeds to any subsidiary,
or any joint venture partner or other person or entity, for the purpose of financing the activities of or business with any person,
or in any country or territory, that currently is the subject to any U.S. sanctions administered by OFAC or in any other manner
that will result in a violation by any person (including any person participating in the transaction whether as underwriter, advisor,
investor or otherwise) of U.S. sanctions administered by OFAC.
(ii) Brokers.
Except pursuant to this Agreement, there is no broker, finder or other party that is entitled to receive from the Company any brokerage
or finder’s fee or other fee or commission as a result of any transactions contemplated by this Agreement or the Concurrent
Private Placement.
(jj) Forward-Looking
Statements. Each financial or operational projection or other “forward-looking statement” (as defined
by Section 27A of the Securities Act or Section 21E of the Exchange Act) contained in the Registration Statement, the Time of Sale
Prospectus or the Prospectus (i) was so included by the Company in good faith and with reasonable basis after due consideration
by the Company of the underlying assumptions, estimates and other applicable facts and circumstances and (ii) is accompanied by
meaningful cautionary statements identifying those factors that could cause actual results to differ materially from those in such
forward-looking statement. No such statement was made with the knowledge of an executive officer or director of the Company
that is was false or misleading.
(kk) Emerging
Growth Company Status. From the time of initial confidential submission of the Registration Statement to the Commission
(or, if earlier, the first date on which the Company engaged in any Section 5(d) Written Communication or any Section 5(d) Oral
Communication) through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section
2(a) of the Securities Act (an “Emerging Growth Company”).
(ll) Communications.
The Company (i) has not alone engaged in communications with potential investors in reliance on Section 5(d) of the Securities
Act other than Permitted Section 5(d) Communications with the consent of the Representative with entities that are QIBs or IAIs
and (ii) has not authorized anyone other than the Representative to engage in such communications; the Company reconfirms
that the Representative has been authorized to act on its behalf in providing Marketing Materials or in making Section 5(d) Oral
Communications and Section 5(d) Written Communications; as of the Applicable Time, each Permitted Section 5(d) Communication,
when considered together with the Time of Sale Prospectus, did not, as of the Applicable Time, include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and each Permitted Section 5(d) Communication, if any, does not, as of the date
hereof, conflict with the information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus.
(mm) Regulatory
Compliance. Except as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, and
except as would not, individually or in the aggregate, have or may reasonably be expected to have a Material Adverse Effect: (i)
the Company has not received any notice of adverse filing, warning letter, untitled letter or other correspondence or notice
from the U.S. Food and Drug Administration, or any other court or arbitrator or federal, state, local or foreign governmental or
regulatory authority, alleging or asserting noncompliance with the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et
seq.) (the “FFDCA”), or similar law; (ii) the Company is and has been in compliance with applicable health care
laws, including without limitation, the FFDCA, and the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), and the regulations
promulgated pursuant to such laws, and comparable state laws, and all other local, state, federal, national, supranational and
foreign laws, manual provisions, policies and administrative guidance relating to the regulation of the Company (collectively,
“Health Care Laws”); (iii) the Company possesses all licenses, certificates, approvals, clearances, authorizations,
permits and supplements or amendments thereto required by any such Health Care Laws and/or to carry on its businesses as now or
proposed to be conducted (“Authorizations”) and such Authorizations are valid and in full force and effect and
the Company is not in violation of any term of any such Authorizations; (iv) the Company has not received notice of any ongoing
claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any U.S. or non-U.S. federal,
state, local or other governmental or regulatory authority, governmental or regulatory agency or body, court, arbitrator or self-regulatory
organization (each, a “Governmental Authority”) or third party alleging that any product operation or activity
is in violation of any Health Care Laws or Authorizations or has any knowledge that any such Governmental Authority or third party
is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (v) the Company has not
received notice that any Governmental Authority has taken, is taking or intends to take action to limit, suspend, modify or revoke
any Authorizations or has any knowledge that any such Governmental Authority is considering such action; (vi) the Company has filed,
obtained, maintained or submitted all reports, documents, forms, notices, applications, records, claims, submissions and supplements
or amendments as required by any Health Care Laws or Authorizations and that all such reports, documents, forms, notices, applications,
records, claims, submissions and supplements or amendments were complete, correct and not misleading on the date filed (or were
corrected or supplemented by a subsequent submission); and (vii) the Company has not, either voluntarily or involuntarily,
initiated, conducted, or issued or caused to be initiated, conducted or issued, any recall, market withdrawal or replacement, safety
alert, post-sale warning, “dear doctor” letter, or other notice or action relating to the alleged lack of safety or
efficacy of any product or any alleged product defect or violation and, to the knowledge of the Company, no third party has initiated
or conducted any such notice or action.
(nn) Clinical
Data. To the knowledge of the Company, the research, studies and tests conducted by or on behalf of the Company have
been and, if still pending, are being conducted with reasonable care and in accordance with experimental protocols, procedures
and controls pursuant to all Health Care Laws and Authorizations; the descriptions of the results of such research, studies and
tests contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus are accurate and complete in all
material respects and fairly present the data derived from such research, studies, and tests; except to the extent disclosed in
the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Company is not aware of any research, studies or
tests, the results of which the Company believes reasonably call into question the research, study or test results described or
referred to in the Registration Statement, the Time of Sale Prospectus and the Prospectus when viewed in the context in which such
results are described; the Company has not received any notices or correspondence from any Governmental Authority requiring the
termination, suspension or material modification of any research, study or test conducted by or on behalf of the Company. To the
knowledge of the Company, there have been no adverse episodes or complications resulting from any research, study or test conducted
by or on behalf of the Company.
(oo) Cybersecurity;
Data Protection. The Company’s information technology assets and equipment, computers, systems, networks, hardware,
software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and
perform in all material respects as required in connection with the operation of the business of the Company as currently conducted,
free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company has
implemented and maintained commercially reasonable controls, policies, procedures, and safeguards to maintain and protect their
material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including
all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in
connection with their businesses, and there have been no breaches, violations, outages or unauthorized uses of or accesses to same,
except for those that have been remedied without material cost or liability or the duty to notify any other person, nor any incidents
under internal review or investigations relating to the same. The Company is presently in material compliance with all applicable
laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority,
internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection
of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
(pp) Private Placement Purchase
Agreement. The securities purchase agreement relating to the Concurrent Private Placement (the “Private Placement
Purchase Agreement”), entered into between the Company and the investors identified on Schedule I thereto, has been
duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally and by general equitable principles.
(qq) Authorization of Preferred
Stock in the Concurrent Private Placement. The shares of Preferred Stock to be sold in the Concurrent Private Placement
have been duly authorized for issuance and sale, and when issued and delivered by the Company pursuant to the Private Placement
Purchase Agreement, will be validly issued and fully paid and non-assessable, and free and clear of any pledge, lien, encumbrance,
security interest or other claim.
(rr) No Registration of Concurrent
Private Placement. It is not necessary, in connection with the offer or sale of the Preferred Stock pursuant to the Private
Placement Purchase Agreement, in the manner contemplated by the Private Placement Purchase Agreement, to register such offer or
sale of Preferred Stock under the Securities Act, and such offer and sale will not be integrated with the offer and sale of the
Offered Shares as contemplated by this Agreement, the Registration Statement, the Time of Sale Prospectus and the Prospectus.
Any certificate signed by any officer of
the Company and delivered to any Underwriter or to counsel for the Underwriters in connection with the offering, or the purchase
and sale, of the Offered Shares shall be deemed a representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
The Company has a reasonable basis for making
each of the representations set forth in this Section 1. The Company acknowledges that the Underwriters and, for purposes
of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriters, will rely
upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Section 2. Purchase,
Sale and Delivery of the Offered Shares.
(a) The
Firm Shares. Upon the terms herein set forth, the Company agrees to issue and sell to the several Underwriters an
aggregate of 28,000,000 Firm Shares. On the basis of the representations, warranties and agreements herein contained, and
upon the terms but subject to the conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from
the Company the respective number of Firm Shares set forth opposite their names on Schedule A. The purchase price
per Firm Share to be paid by the several Underwriters to the Company shall be $1.1750 per share.
(b) The
First Closing Date. Delivery of the Firm Shares to be purchased by the Underwriters and payment therefor shall be
made at the offices of Goodwin Procter LLP (or such other place as may be agreed to by the Company and the Representative) at 9:00
a.m. New York City time, on December 13, 2019, or such other time and date as may be agreed to by the Company and the Representative
(the time and date of such closing are called the “First Closing Date”). The Company hereby acknowledges
that circumstances under which the Representative may provide notice to postpone the First Closing Date as originally scheduled
include, but are not limited to, any determination by the Company or the Representative to recirculate to the public copies of
an amended or supplemented Prospectus or a delay as contemplated by the provisions of Section 11.
(c) The
Optional Shares; Option Closing Date. In addition, on the basis of the representations, warranties and agreements
herein contained, and upon the terms but subject to the conditions herein set forth, the Company hereby grants an option to the
several Underwriters to purchase, severally and not jointly, up to an aggregate of 4,200,000 Optional Shares from the Company at
the purchase price per share to be paid by the Underwriters for the Firm Shares, less an amount per share equal to any dividend
or distribution declared by the Company and payable on the Firm Shares but not payable on Optional Shares. The option granted
hereunder may be exercised at any time and from time to time in whole or in part upon notice by the Representative to the Company,
which notice may be given at any time within 30 days from the date of this Agreement. Such notice shall set forth (i) the
aggregate number of Optional Shares as to which the Underwriters are exercising the option and (ii) the time, date and place at
which certificates for the Optional Shares will be delivered (which time and date may be simultaneous with, but not earlier than,
the First Closing Date; and in the event that such time and date are simultaneous with the First Closing Date, the term “First
Closing Date” shall refer to the time and date of delivery of certificates for the Firm Shares and such Optional Shares).
Any such time and date of delivery, if subsequent to the First Closing Date, is called an “Option Closing Date,”
shall be determined by the Representative and shall not be earlier than two or later than five full business days after delivery
of such notice of exercise. If any Optional Shares are to be purchased, each Underwriter agrees, severally and not jointly,
to purchase the number of Optional Shares (subject to such adjustments to eliminate fractional shares as the Representative may
determine) that bears the same proportion to the total number of Optional Shares to be purchased as the number of Firm Shares set
forth on Schedule A opposite the name of such Underwriter bears to the total number of Firm Shares. The Representative
may cancel the option at any time prior to its expiration by giving written notice of such cancellation to the Company.
(d) Public
Offering of the Offered Shares. The Representative hereby advises the Company that the Underwriters intend to offer
for sale to the public, initially on the terms set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
their respective portions of the Offered Shares as soon after this Agreement has been executed as the Representative, in its sole
judgment, has determined is advisable and practicable.
(e) Payment
for the Offered Shares. (i) Payment for the Offered Shares shall be made at the First Closing Date (and, if applicable,
at each Option Closing Date) by wire transfer of immediately available funds to the order of the Company.
(ii) It is understood
that the Representative has been authorized, for its own account and the accounts of the several Underwriters, to accept delivery
of and receipt for, and make payment of the purchase price for, the Firm Shares and any Optional Shares the Underwriters have agreed
to purchase. Oppenheimer, individually and not as the Representative of the Underwriters, may (but shall not be obligated
to) make payment for any Offered Shares to be purchased by any Underwriter whose funds shall not have been received by the Representative
by the First Closing Date or the applicable Option Closing Date, as the case may be, for the account of such Underwriter, but any
such payment shall not relieve such Underwriter from any of its obligations under this Agreement.
(f) Delivery
of the Offered Shares. The Company shall deliver, or cause to be delivered, through the facilities of The Depository
Trust Company (“DTC”), to the Representative for the accounts of the several Underwriters the Firm Shares at
the First Closing Date, against release of a wire transfer of immediately available funds for the amount of the purchase price
therefor. The Company shall also deliver, or cause to be delivered, through the facilities of DTC, to the Representative
for the accounts of the several Underwriters, the Optional Shares the Underwriters have agreed to purchase at the First Closing
Date or the applicable Option Closing Date, as the case may be, against the release of a wire transfer of immediately available
funds for the amount of the purchase price therefor. The Offered Shares shall be registered in such names and denominations
as the Representative shall have requested at least two full business days prior to the First Closing Date (or the applicable Option
Closing Date, as the case may be). Time shall be of the essence, and delivery at the time and place specified in this Agreement
is a further condition to the obligations of the Underwriters.
Section 3. Additional
Covenants.
The Company further covenants and agrees with each
Underwriter as follows:
(a) Delivery
of Registration Statement, Time of Sale Prospectus and Prospectus. The Company shall furnish to you in New York City,
without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during
the period when a prospectus relating to the Offered Shares is required by the Securities Act to be delivered (whether physically
or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with sales of the Offered Shares,
as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration
Statement as you may reasonably request.
(b) Representative’s
Review of Proposed Amendments and Supplements. During the period when a prospectus relating to the Offered Shares
is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities
Act or any similar rule), the Company (i) will furnish to the Representative for review, a reasonable period of time prior to the
proposed time of filing of any proposed amendment or supplement to the Registration Statement, a copy of each such amendment or
supplement and (ii) will not amend or supplement the Registration Statement (including any amendment or supplement through incorporation
of any report filed under the Exchange Act) without the Representative’s prior written consent, which will not be unreasonably
withheld, conditioned or delayed. Prior to amending or supplementing any preliminary prospectus, the Time of Sale Prospectus
or the Prospectus (including any amendment or supplement through incorporation of any report filed under the Exchange Act), the
Company shall furnish to the Representative for review, a reasonable amount of time prior to the time of filing or use of the proposed
amendment or supplement, a copy of each such proposed amendment or supplement. The Company shall not file or use any such
proposed amendment or supplement without the Representative’s prior written consent, which will not be unreasonably withheld,
conditioned or delayed. The Company shall file with the Commission within the applicable period specified in Rule 424(b)
under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c) Free
Writing Prospectuses. The Company shall furnish to the Representative for review, a reasonable amount of time prior
to the proposed time of filing or use thereof, a copy of each proposed free writing prospectus or any amendment or supplement thereto
prepared by or on behalf of, used by, or referred to by the Company, and the Company shall not file, use or refer to any proposed
free writing prospectus or any amendment or supplement thereto without the Representative’s prior written consent, which
will not be unreasonably withheld, conditioned or delayed. The Company shall furnish to each Underwriter, without charge,
as many copies of any free writing prospectus prepared by or on behalf of, used by or referred to by the Company as such Underwriter
may reasonably request. If at any time when a prospectus is required by the Securities Act to be delivered (whether physically
or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with sales of the Offered Shares
(but in any event if at any time through and including the First Closing Date) there occurred or occurs an event or development
as a result of which any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company conflicted
or would conflict with the information contained in the Registration Statement or included or would include an untrue statement
of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances prevailing at such time, not misleading, the Company shall promptly amend or supplement such free writing
prospectus to eliminate or correct such conflict so that the statements in such free writing prospectus as so amended or supplemented
will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at such time, not misleading, as the case may be; provided, however,
that prior to amending or supplementing any such free writing prospectus, the Company shall furnish to the Representative for review,
a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of such proposed amended or supplemented
free writing prospectus, and the Company shall not file, use or refer to any such amended or supplemented free writing prospectus
without the Representative’s prior written consent, which will not be unreasonably withheld, conditioned or delayed.
(d) Filing
of Underwriter Free Writing Prospectuses. The Company shall not take any action that would result in an Underwriter
or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus
prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder.
(e) Amendments
and Supplements to Time of Sale Prospectus. If the Time of Sale Prospectus is being used to solicit offers to buy
the Offered Shares at a time when the Prospectus is not yet available to prospective purchasers, and any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus so that the Time of Sale Prospectus
does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances when delivered to a prospective purchaser, not misleading, or if any event shall occur
or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration
Statement, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus
to comply with applicable law, the Company shall (subject to Section 3(b) and Section 3(c) hereof) promptly prepare, file with
the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements
to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not include
an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances when delivered to a prospective purchaser, not misleading or so that the Time of Sale Prospectus, as
amended or supplemented, will no longer conflict with the information contained in the Registration Statement, or so that the Time
of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) Certain
Notifications and Required Actions. After the date of this Agreement, the Company shall promptly advise the Representative
in writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission;
(ii) the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement
to any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus or the Prospectus; (iii) the time and
date that any post-effective amendment to the Registration Statement becomes effective; and (iv) the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any amendment
or supplement to any preliminary prospectus, the Time of Sale Prospectus or the Prospectus or of any order preventing or suspending
the use of any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus or the Prospectus, or of any proceedings
to remove, suspend or terminate from listing or quotation the Shares from any securities exchange upon which they are listed for
trading or included or designated for quotation, or of the threatening or initiation of any proceedings for any of such purposes.
If the Commission shall enter any such stop order at any time, the Company will use its best efforts to obtain the lifting of
such order at the earliest possible moment. Additionally, the Company agrees that it shall comply with all applicable provisions
of Rule 424(b), Rule 433 and Rule 430B under the Securities Act and will use its reasonable efforts to confirm that any filings
made by the Company under Rule 424(b) or Rule 433 were received in a timely manner by the Commission.
(g) Amendments
and Supplements to the Prospectus and Other Securities Act Matters. If any event shall occur or condition exist as
a result of which it is necessary to amend or supplement the Prospectus so that the Prospectus does not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar
rule) to a purchaser, not misleading, or if in the opinion of the Representative or counsel for the Underwriters it is otherwise
necessary to amend or supplement the Prospectus to comply with applicable law, the Company agrees (subject to Section 3(b) and
Section 3(c)) hereof to promptly prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to
any dealer upon request, amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or
supplemented will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances when the Prospectus is delivered (whether physically or through compliance
with Rule 172 under the Securities Act or any similar rule) to a purchaser, not misleading or so that the Prospectus, as amended
or supplemented, will comply with applicable law. Neither the Representative’s consent to, nor delivery of, any such
amendment or supplement shall constitute a waiver of any of the Company’s obligations under Section 3(b) or Section 3(c).
(h) Blue
Sky Compliance. The Company shall cooperate with the Representative and counsel for the Underwriters to qualify or
register the Offered Shares for sale under (or obtain exemptions from the application of) the state securities or blue sky laws
or Canadian provincial securities laws (or other foreign laws) of those jurisdictions designated by the Representative, shall comply
with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution
of the Offered Shares. The Company shall not be required to qualify as a foreign corporation or to take any action that would
subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject
to taxation as a foreign corporation. The Company will advise the Representative promptly of the suspension of the qualification
or registration of (or any such exemption relating to) the Offered Shares for offering, sale or trading in any jurisdiction or
any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest
possible moment.
(i) Use
of Proceeds. The Company shall apply the net proceeds from (i) the sale of the Offered Shares sold by it hereunder
and (ii) the sale of the Preferred Stock in the Concurrent Private Placement in the manner described under the caption “Use
of Proceeds” in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(j) Transfer
Agent. The Company shall engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(k) Earnings
Statement. The Company will make generally available to its security holders and to the Representative as soon as
practicable an earnings statement (which need not be audited) covering a period of at least twelve months beginning with the first
fiscal quarter of the Company commencing after the date of this Agreement that will satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the Commission thereunder.
(l) Continued
Compliance with Securities Laws. The Company will comply with the Securities Act and the Exchange Act so as to permit
the completion of the distribution of the Offered Shares as contemplated by this Agreement, the Registration Statement,
the Time of Sale Prospectus and the Prospectus. Without limiting the generality of the foregoing, the Company will, during
the period when a prospectus relating to the Offered Shares is required by the Securities Act to be delivered (whether physically
or through compliance with Rule 172 under the Securities Act or any similar rule), file on a timely basis with the Commission and
the NASDAQ all reports and documents required to be filed under the Exchange Act.
(m) Listing.
The Company will use its best efforts to list, subject to notice of issuance, the Offered Shares on the NASDAQ.
(n) Company
to Provide Copy of the Prospectus in Form That May be Downloaded from the Internet. If requested by the Representative,
the Company shall cause to be prepared and delivered, at its expense, within one business day from the effective date of this Agreement,
to the Representative an “electronic Prospectus” to be used by the Underwriters in connection with the offering
and sale of the Offered Shares. As used herein, the term “electronic Prospectus” means a form of Time
of Sale Prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded
in an electronic format, satisfactory to the Representative, that may be transmitted electronically by the Representative and the
other Underwriters to offerees and purchasers of the Offered Shares; (ii) it shall disclose the same information as the paper Time
of Sale Prospectus, except to the extent that graphic and image material cannot be disseminated electronically, in which case such
graphic and image material shall be replaced in the electronic Prospectus with a fair and accurate narrative description or tabular
representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format,
satisfactory to the Representative, that will allow investors to store and have continuously ready access to the Time of Sale Prospectus
at any future time, without charge to investors (other than any fee charged for subscription to the Internet as a whole and for
on-line time). The Company hereby confirms that it has included or will include in the Prospectus filed pursuant to EDGAR
or otherwise with the Commission and in the Registration Statement at the time it was declared effective an undertaking that, upon
receipt of a request by an investor or his or her representative, the Company shall transmit or cause to be transmitted promptly,
without charge, a paper copy of the Time of Sale Prospectus.
(o) Agreement
Not to Offer or Sell Additional Shares. During the period commencing on and including the date hereof and continuing
through and including the 90th day following the date of the Prospectus (such period being referred to herein as the “Lock-up
Period”), the Company will not, without the prior written consent of the Representative (which consent may be withheld
in its sole discretion), directly or indirectly: (i) sell, offer to sell, contract to sell or lend any Shares or Related
Securities (as defined below); (ii) effect any short sale, or establish or increase any “put equivalent position” (as
defined in Rule 16a-1(h) under the Exchange Act) or liquidate or decrease any “call equivalent position” (as defined
in Rule 16a-1(b) under the Exchange Act) of any Shares or Related Securities; (iii) pledge, hypothecate or grant any security interest
in any Shares or Related Securities; (iv) in any other way transfer or dispose of any Shares or Related Securities; (v) enter into
any swap, hedge or similar arrangement or agreement that transfers, in whole or in part, the economic risk of ownership of any
Shares or Related Securities, regardless of whether any such transaction is to be settled in securities, in cash or otherwise;
(vi) announce the offering of any Shares or Related Securities; (vii) file any registration statement under the Securities Act
in respect of any Shares or Related Securities (other than as contemplated by this Agreement with respect to the Offered Shares);
or (viii) publicly announce the intention to do any of the foregoing; provided, however, that the Company may (A) effect
the transactions contemplated hereby and the Concurrent Private Placement, (B) issue Shares or options to purchase Shares, or issue
Shares upon exercise of options, pursuant to any stock option, stock bonus or other stock plan or arrangement described in the
Registration Statement, the Time of Sale Prospectus and the Prospectus, but only if the holders of such Shares or options agree
in writing with the Underwriters not to sell, offer, dispose of or otherwise transfer any such Shares or options during such Lock-up
Period without the prior written consent of the Representative (which consent may be withheld in its sole discretion), (C) file
a registration statement on Form S-8 relating to shares of Common Stock or Related Securities granted pursuant to the Company’s
benefit plans described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and (D) issue shares of Common
Stock or Related Securities in connection with any joint venture, commercial or collaborative relationship or the acquisition or
license by the Company of the securities, businesses, property or other assets of another person or entity or pursuant to any employee
benefit plan assumed by the Company in connection with any such acquisition; provided, however, that in the case of clause (D),
(x) the aggregate number of shares of Common Stock issued or issuable pursuant to such transactions does not exceed 5% of the number
of shares of Common Stock outstanding immediately after the issuance and sale of the Offered Shares and (y) the recipients thereof
provide to the Representative a signed Lock-Up Agreement in the form of Exhibit A hereto. For purposes of the foregoing,
“Related Securities” shall mean any options or warrants or other rights to acquire Shares or any securities
exchangeable or exercisable for or convertible into Shares, or to acquire other securities or rights ultimately exchangeable or
exercisable for, or convertible into, Shares.
(p) Future Reports
to the Representative. During the period of five years hereafter, the Company will furnish to the Representative
(i) as soon as practicable after the end of each fiscal year, copies of the Annual Report of the Company containing the balance
sheet of the Company as of the close of such fiscal year and statements of income, stockholders’ equity and cash flows for
the year then ended and the opinion thereon of the Company’s independent public or certified public accountants; (ii) as
soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form
10-Q, Current Report on Form 8-K or other report filed by the Company with the Commission or any securities exchange; and (iii)
as soon as available, copies of any report or communication of the Company furnished or made available generally to holders of
its capital stock; provided, however, that the requirements of this Section 3(p) shall be satisfied to the extent that such
reports, statement, communications, financial statements or other documents are available on EDGAR.
(q) Investment
Limitation. The Company shall not invest or otherwise use the proceeds received by the Company from its sale of the
Offered Shares or the Concurrent Private Placement in such a manner as would require the Company to register as an investment company
under the Investment Company Act.
(r) No
Stabilization or Manipulation; Compliance with Regulation M. The Company will not take, and will ensure that no affiliate
of the Company will take, directly or indirectly, any action designed to or that might cause or result in stabilization or manipulation
of the price of the Shares or any reference security with respect to the Shares, whether to facilitate the sale or resale of the
Offered Shares or otherwise, and the Company will, and shall cause each of its affiliates to, comply with all applicable provisions
of Regulation M.
(s) Enforce
Lock-Up Agreements. During the Lock-up Period, the Company will enforce all agreements between the Company and any
of its security holders that restrict or prohibit, expressly or in operation, the offer, sale or transfer of Shares or Related
Securities or any of the other actions restricted or prohibited under the terms of the form of Lock-up Agreement. In addition,
the Company will direct the transfer agent to place stop transfer restrictions upon any such securities of the Company that are
bound by such “lock-up” agreements for the duration of the periods contemplated in such agreements, including, without
limitation, “lock-up” agreements entered into by the Company’s officers and directors pursuant to Section 6(i)
hereof.
(t) Company
to Provide Interim Financial Statements. Prior to the First Closing Date and each applicable Option Closing Date,
the Company will furnish the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any
unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial
statements appearing in the Registration Statement and the Prospectus.
(u) Amendments
and Supplements to Permitted Section 5(d) Communications. If at any time following the distribution of any Permitted
Section 5(d) Communication, there occurred or occurs an event or development as a result of which such Permitted Section 5(d) Communication
included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company
will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Permitted Section 5(d)
Communication to eliminate or correct such untrue statement or omission.
(v) Emerging
Growth Company Status. The Company will promptly notify the Representative if the Company ceases to be an Emerging
Growth Company at any time prior to the later of (i) the time when a prospectus relating to the Offered Shares is not required
by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar
rule) and (ii) the expiration of the Lock-Up Period (as defined herein).
The Representative, on behalf of the several
Underwriters, may, in its sole discretion, waive in writing the performance by the Company of any one or more of the foregoing
covenants or extend the time for their performance.
Section 4. Payment of Expenses.
The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder
and in connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to the issuance
and delivery of the Offered Shares (including all printing and engraving costs), (ii) all fees and expenses of the registrar and
transfer agent of the Shares, (iii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale
of the Offered Shares to the Underwriters, (iv) all fees and expenses of the Company’s counsel, independent public or certified
public accountants and other advisors, (v) all costs and expenses incurred in connection with the preparation, printing, filing,
shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates
of experts), the Time of Sale Prospectus, the Prospectus, each free writing prospectus prepared by or on behalf of, used by, or
referred to by the Company, and each preliminary prospectus, each Permitted Section 5(d) Communication, and all amendments and
supplements thereto, and this Agreement, (vi) all filing fees, attorneys’ fees and expenses incurred by the Company or the
Underwriters in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all
or any part of the Offered Shares for offer and sale under the state securities or blue sky laws or the provincial securities laws
of Canada, and, if requested by the Representative, preparing and printing a “Blue Sky Survey” or memorandum and a
“Canadian wrapper”, and any supplements thereto, advising the Underwriters of such qualifications, registrations and
exemptions, (vii) the costs, fees and expenses incurred by the Underwriters in connection with determining their compliance with
the rules and regulations of FINRA related to the Underwriters’ participation in the offering and distribution of the Offered
Shares, including any related filing fees and the legal fees of, and disbursements by, counsel to the Underwriters, (viii) the
costs and expenses of the Company relating to investor presentations on any “road show”, any Permitted Section 5(d)
Communication or any Section 5(d) Oral Communication made in connection with the offering of the Offered Shares, including, without
limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the
production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations
with the prior approval of the Company, travel and lodging expenses of the representatives, employees and officers of the Company
and any such consultants, and the cost of any aircraft chartered in connection with the road show, (ix) the fees and expenses associated
with listing the Offered Shares on the NASDAQ, (x) all customary, reasonable and documented out-of-pocket costs and expenses incident
to the performance of the obligations of the Underwriters under this Agreement (including, without limitation, the fees and expenses
of counsel to the Underwriters), and (xi) all other fees, costs and expenses of the nature referred to in Item 14 of Part II of
the Registration Statement. Except as provided in this Section 4 or in Section 7, Section 9 or Section 10 hereof, the Underwriters
shall pay their own expenses, including the fees and disbursements of their counsel.
Section 5. Covenant of the Underwriters.
Each Underwriter severally and not jointly covenants with the Company not to take any action that would result in the Company being
required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or
on behalf of such Underwriter that otherwise would not, but for such actions, be required to be filed by the Company under Rule
433(d).
Section 6. Conditions
of the Obligations of the Underwriters. The respective obligations of the several Underwriters hereunder to purchase
and pay for the Offered Shares as provided herein on the First Closing Date and, with respect to the Optional Shares, each Option
Closing Date, shall be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section
1 hereof as of the date hereof and as of the First Closing Date as though then made and, with respect to the Optional Shares, as
of each Option Closing Date as though then made, to the timely performance by the Company of its covenants and other obligations
hereunder, and to each of the following additional conditions:
(a) Comfort
Letter. On the date hereof, the Representative shall have received from KPMG LLP, independent registered public
accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory
to the Representative, containing statements and information of the type ordinarily included in accountant’s “comfort
letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with
respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement,
the Time of Sale Prospectus, and each free writing prospectus, if any.
(b) Compliance
with Registration Requirements; No Stop Order; No Objection from FINRA.
(i) The
Company shall have filed the Prospectus with the Commission (including the information previously omitted from the Registration
Statement pursuant to Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under
the Securities Act.
(ii) No stop order suspending
the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect,
and no proceedings for such purpose shall have been instituted or threatened by the Commission.
(iii) If a filing has
been made with FINRA, FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(c) No
Material Adverse Change or Ratings Agency Change. For the period from and after the date of this Agreement and through
and including the First Closing Date and, with respect to any Optional Shares purchased after the First Closing Date, each Option
Closing Date:
(i) in the judgment of the
Representative there shall not have occurred any Material Adverse Change; and
(ii) there shall not have occurred
any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company by any
“nationally recognized statistical rating organization” as that term is used in Rule 15c3-1(c)(2)(vi)(F) under the
Exchange Act.
(d) Opinion
of Counsel for the Company. On each of the First Closing Date and each Option Closing Date the Representative shall
have received the opinion of Duane Morris LLP, counsel for the Company, dated as of such date, in form and substance reasonably
satisfactory to the Representative.
(e) Opinion
of Intellectual Property Counsel. On each of the First Closing Date and each Option Closing Date, the Representative
shall have received the opinions of each of Cantor Colburn LLP and Davidson, Davidson & Kappel, LLC, counsels for the Company
with respect to intellectual property matters, each dated as of such date, in form and substance reasonably satisfactory to the
Representative.
(f) Opinion
of Counsel for the Underwriters. On each of the First Closing Date and each Option Closing Date the Representative
shall have received the opinion of Goodwin Procter LLP, counsel for the Underwriters in connection with the offer and sale of the
Offered Shares, in form and substance satisfactory to the Underwriters, dated as of such date.
(g) Officers’
Certificate. On each of the First Closing Date and each Option Closing Date, the Representative shall have received
a certificate executed by the Chief Executive Officer or President of the Company and the Chief Financial Officer of the Company,
dated as of such date, to the effect set forth in Section 6(b)(ii) and further to the effect that:
(i) for the period from
and including the date of this Agreement through and including such date, there has not occurred any Material Adverse Change;
(ii) the
representations, warranties and covenants of the Company set forth in Section 1 of this Agreement are true and correct with the
same force and effect as though expressly made on and as of such date; and
(iii) the Company has
complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder
at or prior to such date.
(h) Bring-down
Comfort Letter. On each of the First Closing Date and each Option Closing Date the Representative shall have received
from KPMG LLP, independent registered public accountants for the Company, a letter dated such date, in form and substance satisfactory
to the Representative, which letter shall: (i) reaffirm the statements made in the letter furnished by them pursuant to Section
6(a), except that the specified date referred to therein for the carrying out of procedures shall be no more than three business
days prior to the First Closing Date or the applicable Option Closing Date, as the case may be; and (ii) cover certain financial
information contained in the Prospectus.
(i) Lock-Up
Agreements. On or prior to the date hereof, the Company shall have furnished to the Representative an agreement in
the form of Exhibit A hereto from each of the persons listed on Exhibit B hereto, and each such agreement shall be
in full force and effect on each of the First Closing Date and each Option Closing Date.
(j) Rule
462(b) Registration Statement. In the event that a Rule 462(b) Registration Statement is filed in connection with
the offering contemplated by this Agreement, such Rule 462(b) Registration Statement shall have been filed with the Commission
on the date of this Agreement and shall have become effective automatically upon such filing.
(k) Additional
Documents. On or before each of the First Closing Date and each Option Closing Date, the Representative and counsel
for the Underwriters shall have received such information, documents and opinions as they may reasonably request for the purposes
of enabling them to pass upon the issuance and sale of the Offered Shares as contemplated herein, or in order to evidence the accuracy
of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained; and
all proceedings taken by the Company in connection with the issuance and sale of the Offered Shares as contemplated herein and
in connection with the other transactions contemplated by this Agreement shall be satisfactory in form and substance to the Representative
and counsel for the Underwriters.
(l) Concurrent Private Placement. The
Company shall have completed the sale of shares of its Preferred Stock pursuant to the Private Placement Purchase Agreement.
If any condition specified in this Section
6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice from
the Representative to the Company at any time on or prior to the First Closing Date and, with respect to the Optional Shares, at
any time on or prior to the applicable Option Closing Date, which termination shall be without liability on the part of any party
to any other party, except that Section 4, Section 7, Section 9 and Section 10 shall at all times be effective and shall survive
such termination.
Section 7. Reimbursement
of Underwriters’ Expenses. If this Agreement is terminated by the Representative pursuant to Section 6, Section
11 or Section 12, or if the sale to the Underwriters of the Offered Shares on the First Closing Date is not consummated because
of any refusal, inability or failure on the part of the Company to perform any agreement herein or to comply with any provision
hereof, the Company agrees to reimburse the Representative and the other Underwriters (or such Underwriters as have terminated
this Agreement with respect to themselves), severally, upon demand for all out-of-pocket expenses that shall have been reasonably
incurred by the Representative and the Underwriters in connection with the proposed purchase and the offering and sale of the Offered
Shares, including, but not limited to, fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile
and telephone charges; provided that, in the event any such termination is effected after the First Closing Date but prior
to any Option Closing Date with respect to the purchase of any Optional Shares, the Company shall only reimburse the Underwriters
for all of their out-of-pocket expenses including the reasonable fees and disbursements of counsel for the Underwriters, incurred
after the First Closing Date in connection with the proposed purchase of any such Optional Shares.
Section 8. Effectiveness of this Agreement.
This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
Section 9. Indemnification.
(a) Indemnification
of the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors,
officers, employees and agents, and each person, if any, who controls any Underwriter within the meaning of the Securities Act
or the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such affiliate,
director, officer, employee, agent or controlling person may become subject, under the Securities Act, the Exchange Act, other
federal or state statutory law or regulation, or the laws or regulations of foreign jurisdictions where Offered Shares have been
offered or sold or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the
written consent of the Company), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereto, or the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading; or (ii) any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus that
the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of the Securities Act, any Marketing
Material, any Section 5(d) Written Communication or the Prospectus (or any amendment or supplement to the foregoing), or the omission
or alleged omission to state therein a material fact necessary in order to make the statements, in the light of the circumstances
under which they were made, not misleading; or (iii) any act or failure to act or any alleged act or failure to act by any Underwriter
in connection with, or relating in any manner to, the Shares or the offering contemplated hereby, and which is included as part
of or referred to in any loss, claim, damage, liability or action arising out of or based upon any matter covered by clause (i)
or (ii) above; and to reimburse each Underwriter and each such affiliate, director, officer, employee, agent and controlling person
for any and all expenses (including the fees and disbursements of counsel) as such expenses are incurred by such Underwriter or
such affiliate, director, officer, employee, agent or controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising
out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and
in conformity with information relating to any Underwriter furnished to the Company by the Representative in writing expressly
for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any such free writing prospectus,
any Marketing Material, any Section 5(d) Written Communication or the Prospectus (or any amendment or supplement thereto), it being
understood and agreed that the only such information consists of the information described in Section 9(b) below. The indemnity
agreement set forth in this Section 9(a) shall be in addition to any liabilities that the Company may otherwise have.
(b) Indemnification
of the Company, its Directors and Officers. Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, each of its directors, each of its officers who signed the Registration Statement and each person, if
any, who controls the Company within the meaning of the Securities Act or the Exchange Act, against any loss, claim, damage, liability
or expense, as incurred, to which the Company, or any such director, officer or controlling person may become subject, under the
Securities Act, the Exchange Act, or other federal or state statutory law or regulation, or at common law or otherwise (including
in settlement of any litigation, if such settlement is effected with the written consent of such Underwriter), insofar as such
loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment
thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) any untrue statement or alleged untrue statement of a material fact included in any
preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus that the Company has used, referred to or filed,
or is required to file, pursuant to Rule 433 of the Securities Act, any Section 5(d) Written Communication or the Prospectus (or
any such amendment or supplement) or the omission or alleged omission to state therein a material fact necessary in order to make
the statements, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration
Statement, such preliminary prospectus, the Time of Sale Prospectus, such free writing prospectus, such Section 5(d) Written Communication
or the Prospectus (or any such amendment or supplement), in reliance upon and in conformity with information relating to such Underwriter
furnished to the Company by the Representative in writing expressly for use therein; and to reimburse the Company, or any such
director, officer or controlling person for any and all expenses (including the fees and disbursements of counsel) as such expenses
are incurred by the Company, or any such director, officer or controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or action. The Company hereby acknowledges that the
only information that the Representative has furnished to the Company expressly for use in the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, any free writing prospectus that the Company has filed, or is required to file, pursuant
to Rule 433(d) of the Securities Act, any Section 5(d) Written Communication or the Prospectus (or any amendment or supplement
to the foregoing) are the statements set forth in the paragraphs under the subheadings “Discounts and Commissions”
and “Price Stabilization, Short Positions and Penalty Bids” under the caption “Underwriting” in the Preliminary
Prospectus Supplement and the Final Prospectus Supplement. The indemnity agreement set forth in this Section 9(b) shall be in addition
to any liabilities that each Underwriter may otherwise have.
(c) Notifications
and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 9 of notice
of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 9, notify the indemnifying party in writing of the commencement thereof, but the omission so to notify
the indemnifying party will not relieve the indemnifying party from any liability which it may have to any indemnified party to
the extent the indemnifying party is not materially prejudiced as a proximate result of such failure and shall not in any event
relieve the indemnifying party from any liability that it may have otherwise than on account of this indemnity agreement.
In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory
to such indemnified party; provided, however, that if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably concluded that a conflict may arise between the positions
of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying party’s election so to assume the defense of such action
and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this
Section 9 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence
(it being understood, however, that the indemnifying party shall not be liable for the fees and expenses of more than one separate
counsel (together with local counsel), representing the indemnified parties who are parties to such action), which counsel (together
with any local counsel) for the indemnified parties shall be selected by the Representative (in the case of counsel for the indemnified
parties referred to in Section 9(a) above) or by the Company (in the case of counsel for the indemnified parties referred to in
Section 9(b) above)) or (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized
in writing the employment of counsel for the indemnified party at the expense of the indemnifying party, in each of which cases
the fees and expenses of counsel shall be at the expense of the indemnifying party and shall be paid as they are incurred.
(d) Settlements.
The indemnifying party under this Section 9 shall not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by Section 9(c) hereof, the indemnifying party shall be liable for any settlement
of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by
such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have
been sought hereunder by such indemnified party, unless such settlement, compromise or consent includes an unconditional release
of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding and does
not include an admission of fault or culpability or a failure to act by or on behalf of such indemnified party.
Section 10. Contribution.
If the indemnification provided for in Section 9 is for any reason held to be unavailable to or otherwise insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result
of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the
Offered Shares pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the
offering of the Offered Shares pursuant to this Agreement shall be deemed to be in the same respective proportions as the total
proceeds from the offering of the Offered Shares pursuant to this Agreement (before deducting expenses) received by the Company,
and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth on the front cover
page of the Prospectus, bear to the aggregate initial public offering price of the Offered Shares as set forth on such cover.
The relative fault of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Company, on the one hand, or the Underwriters, on the other hand, and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as
a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the
limitations set forth in Section 9(c), any legal or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in Section 9(c) with respect to notice of commencement
of any action shall apply if a claim for contribution is to be made under this Section 10; provided, however, that no additional
notice shall be required with respect to any action for which notice has been given under Section 9(c) for purposes of indemnification.
The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 10 were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in this Section 10.
Notwithstanding the provisions of this Section
10, no Underwriter shall be required to contribute any amount in excess of the underwriting discounts and commissions received
by such Underwriter in connection with the Offered Shares underwritten by it and distributed to the public. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant
to this Section 10 are several, and not joint, in proportion to their respective underwriting commitments as set forth opposite
their respective names on Schedule A. For purposes of this Section 10, each affiliate, director, officer, employee
and agent of an Underwriter and each person, if any, who controls an Underwriter within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the
Securities Act and the Exchange Act shall have the same rights to contribution as the Company.
Section 11. Default of One or More
of the Several Underwriters. If, on the First Closing Date or any Option Closing Date any one or more of the several
Underwriters shall fail or refuse to purchase Offered Shares that it or they have agreed to purchase hereunder on such date, and
the aggregate number of Offered Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase
does not exceed 10% of the aggregate number of the Offered Shares to be purchased on such date, the Representative may make arrangements
satisfactory to the Company for the purchase of such Offered Shares by other persons, including any of the Underwriters, but if
no such arrangements are made by such date, the other Underwriters shall be obligated, severally and not jointly, in the proportions
that the number of Firm Shares set forth opposite their respective names on Schedule A bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be specified
by the Representative with the consent of the non-defaulting Underwriters, to purchase the Offered Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, on the First Closing Date or any Option
Closing Date any one or more of the Underwriters shall fail or refuse to purchase Offered Shares and the aggregate number of Offered
Shares with respect to which such default occurs exceeds 10% of the aggregate number of Offered Shares to be purchased on such
date, and arrangements satisfactory to the Representative and the Company for the purchase of such Offered Shares are not made
within 48 hours after such default, this Agreement shall terminate without liability of any party to any other party except that
the provisions of Section 4, Section 7, Section 9 and Section 10 shall at all times be effective and shall survive such termination.
In any such case either the Representative or the Company shall have the right to postpone the First Closing Date or the applicable
Option Closing Date, as the case may be, but in no event for longer than seven days in order that the required changes, if any,
to the Registration Statement and the Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term “Underwriter”
shall be deemed to include any person substituted for a defaulting Underwriter under this Section 11. Any action taken under
this Section 11 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
Section 12. Termination of this
Agreement. Prior to the purchase of the Firm Shares by the Underwriters on the First Closing Date, this Agreement
may be terminated by the Representative by notice given to the Company if at any time: (i) trading or quotation in any of the
Company’s securities shall have been suspended or limited by the Commission or by the NASDAQ, or trading in securities generally
on either the NASDAQ or the NYSE shall have been suspended or limited, or minimum or maximum prices shall have been generally
established on any of such stock exchanges; (ii) a general banking moratorium shall have been declared by any of federal or New
York authorities; (iii) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis
or calamity, or any change in the United States or international financial markets, or any substantial change or development involving
a prospective substantial change in United States’ or international political, financial or economic conditions, as in the
judgment of the Representative is material and adverse and makes it impracticable to market the Offered Shares in the manner and
on the terms described in the Time of Sale Prospectus or the Prospectus or to enforce contracts for the sale of securities; (iv)
in the judgment of the Representative there shall have occurred any Material Adverse Change; or (v) the Company shall have sustained
a loss by strike, fire, flood, earthquake, accident or other calamity of such character as in the judgment of the Representative
may interfere materially with the conduct of the business and operations of the Company regardless of whether or not such loss
shall have been insured. Any termination pursuant to this Section 12 shall be without liability on the part of (a) the Company
to any Underwriter, except that the Company shall be obligated to reimburse the expenses of the Representative and the Underwriters
pursuant to Section 4 or Section 7 hereof or (b) any Underwriter to the Company; provided, however, that the provisions
of Section 9 and Section 10 shall at all times be effective and shall survive such termination.
Section 13. No Advisory
or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale of the Offered Shares pursuant
to this Agreement, including the determination of the public offering price of the Offered Shares and any related discounts and
commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters,
on the other hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction, each Underwriter
is and has been acting solely as a principal and is not the agent or fiduciary of the Company, or its stockholders, creditors,
employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of
the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect
to the offering contemplated hereby except the obligations expressly set forth in this Agreement, (d) the Underwriters and their
respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company,
and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated
hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
Section 14. Representations
and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and
other statements of the Company, of its officers and of the several Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or
any of its or their partners, officers or directors or any controlling person, as the case may be, and, anything herein to the
contrary notwithstanding, will survive delivery of and payment for the Offered Shares sold hereunder and any termination of this
Agreement.
Section 15. Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
| If to the Representative: |
Oppenheimer & Co. Inc. |
| |
85 Broad Street New York, New York 10004 |
| |
Attention: General Counsel |
| |
|
| with a copy to: |
Goodwin Procter LLP |
| |
620 Eighth Avenue |
| |
New York, NY 10018 |
| |
Attention: Thomas S. Levato |
| |
|
| If to the Company: |
Marinus Pharmaceuticals, Inc. |
| |
5 Radnor Corporate Center, Suite 500 100 Matsonford Rd. |
| |
Radnor, PA 19087 |
| |
Attention: Chief Financial Officer |
| |
|
| with a copy to: |
Duane Morris LLP |
| |
30 South 17th Street |
| |
Philadelphia, PA 19103 |
| |
Attention: Kathleen M. Shay |
Any party hereto may change the address for receipt of communications
by giving written notice to the others.
Section 16. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, including any substitute Underwriters pursuant
to Section 11 hereof, and to the benefit of the affiliates, directors, officers, employees, agents and controlling persons referred
to in Section 9 and Section 10, and in each case their respective successors, and no other person will have any right or obligation
hereunder. The term “successors” shall not include any purchaser of the Offered Shares as such from any
of the Underwriters merely by reason of such purchase.
Section 17. Partial
Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not
affect the validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision
of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes
(and only such minor changes) as are necessary to make it valid and enforceable.
Section 18. Governing Law Provisions.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York applicable to agreements
made and to be performed in such state. Any legal suit, action or proceeding arising out of or based upon this Agreement
or the transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal courts of the
United States of America located in the Borough of Manhattan in the City of New York or the courts of the State of New York in
each case located in the Borough of Manhattan in the City of New York (collectively, the “Specified Courts”),
and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement
of a judgment of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such
courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s
address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court.
The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding
in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such
suit, action or other proceeding brought in any such court has been brought in an inconvenient forum.
Section 19. General Provisions.
This Agreement, together with that certain Engagement Letter dated November 27, 2019, by and between the Company and the Representative,
including that certain amendment thereto dated December 9, 2019, constitutes the entire agreement of the parties to this Agreement
and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect
to the subject matter hereof. This Agreement may be executed in two or more counterparts, each one of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement may not be amended
or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived
in writing by each party whom the condition is meant to benefit. The section headings herein are for the convenience of the
parties only and shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges
that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions
hereof, including, without limitation, the indemnification provisions of Section 9 and the contribution provisions of Section 10,
and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section
9 and Section 10 hereof fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs
and its business in order to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus,
the Time of Sale Prospectus, each free writing prospectus and the Prospectus (and any amendments and supplements to the foregoing),
as contemplated by the Securities Act and the Exchange Act.
If the foregoing is in accordance with your
understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along
with all counterparts hereof, shall become a binding agreement in accordance with its terms.
| |
Very truly yours, |
| |
|
| |
MARINUS PHARMACEUTICALS, INC. |
| |
|
| |
|
| |
By: |
/s/ Edward Smith |
| |
|
Name: Edward Smith |
| |
|
Title: CFO |
| Oppenheimer & Co. Inc. |
|
| |
|
| |
|
| By: |
/s/ Peter Bennett |
|
| |
Name: Peter Bennett |
|
| |
Title: Managing Director, Equity Capital Markets |
|
Acting individually and as Representative of the several Underwriters
named in the attached Schedule A.
Schedule A
| Underwriters | |
Number of
Firm Shares
to be Purchased | |
| Oppenheimer & Co. Inc. | |
| 16,472,400 | |
| Ladenburg Thalmann & Co. Inc. | |
| 9,881,200 | |
| Craig-Hallum Capital Group LLC | |
| 1,646,400 | |
| Total | |
| 28,000,000 | |
Schedule B-1
Free Writing Prospectuses Included
in the Time of Sale Prospectus
None.
Schedule B-2
Pricing Information
| 1. | Public offering price: $1.25 per share |
| 2. | Number of Offered Shares: 28,000,000 shares |
| 3. | Underwriting discount: 6.00% |
Schedule C
Permitted Section 5(d) Communications
Company Management Presentation dated December 2019
Exhibit A
Form of Lock-up Agreement
December ___, 2019
Oppenheimer & Co. Inc.
As Representative of the Several Underwriters
85 Broad Street
New York, New York 10004
| Re: | Marinus Pharmaceuticals, Inc. (the “Company”) |
Ladies & Gentlemen:
The Company proposes to conduct a public offering of shares
of common stock, par value $0.001 per share (the “Shares”), of the Company (the “Offering”),
for which Oppenheimer & Co. Inc. (“Oppenheimer”) will act as the representative of the underwriters.
The undersigned recognizes that the Offering will benefit each of the Company and the undersigned. The undersigned acknowledges
that the underwriters are relying on the representations and agreements of the undersigned contained in this letter agreement in
conducting the Offering and, at a subsequent date, in entering into an underwriting agreement (the “Underwriting Agreement”)
and other underwriting arrangements with the Company with respect to the Offering.
Annex A sets forth definitions for capitalized terms
used in this letter agreement that are not defined in the body of this letter agreement. Those definitions are a part of
this letter agreement.
In consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees that, during the Lock-up
Period, the undersigned will not (and will cause any Family Member not to), without the prior written consent of Oppenheimer, which
may withhold its consent in its sole discretion:
| · | Sell or Offer to Sell any Shares or Related Securities
currently or hereafter owned either of record or beneficially (as defined in Rule 13d-3 under the Exchange Act) by the undersigned
or such Family Member, |
| · | make any demand for, or exercise any right with respect
to, the registration under the Securities Act of the offer and sale of any Shares or Related Securities, or cause to be filed
a registration statement, prospectus or prospectus supplement (or an amendment or supplement thereto) with respect to any such
registration, or |
| · | publicly announce any intention to do any of the foregoing. |
The foregoing will not apply to the registration of the offer
and sale of the Shares, and the sale of the Shares to the underwriters, in each case as contemplated by the Underwriting Agreement.
In addition, the foregoing restrictions shall not apply to (i) the transfer of Shares or Related Securities by gift, or by will
or intestate succession to a Family Member or to a trust whose beneficiaries consist exclusively of one or more of the undersigned
and/or a Family Member or (ii) the transfer of Shares or Related Securities to an affiliate of the undersigned or an affiliate
of the manager of the undersigned in a transaction not involving a disposition for value; provided, however, that in
any such case, it shall be a condition to such transfer that:
| · | each transferee executes and delivers to Oppenheimer
an agreement in form and substance satisfactory to Oppenheimer stating that such transferee is receiving and holding such Shares
and/or Related Securities subject to the provisions of this letter agreement and agrees not to Sell or Offer to Sell such Shares
and/or Related Securities, engage in any Swap or engage in any other activities restricted under this letter agreement except
in accordance with this letter agreement (as if such transferee had been an original signatory hereto), and |
| · | prior to the expiration of the Lock-up Period, no public
disclosure or filing under the Exchange Act by any party to the transfer (donor, donee, transferor or transferee) shall be required,
or made voluntarily, reporting a reduction in beneficial ownership of Shares or Related Securities in connection with such transfer. |
In addition, the foregoing restrictions shall not apply to (A)
the exercise of any option to acquire Shares or Related Securities, provided, however, that the securities issued upon
exercise shall remain subject to the provisions of this letter agreement, (B) the surrender or forfeiture of Shares or Related
Securities to the Company in a transaction exempt from Section 16(b) of the Exchange Act to satisfy tax withholding obligations
upon exercise or vesting of stock options or (C) the transfer of Shares or Related Securities by any order or decree of any court
or governmental agency or body, domestic or foreign, having jurisdiction over the undersigned or any of the undersigned’s
properties or assets provided, that it shall be a condition to the transfer that the transferee execute an agreement
stating that the transferee is receiving and holding such securities subject to the provisions of this letter agreement and there
shall be no further transfer of such securities except in accordance with this letter agreement; provided, however,
that in the case of clause (A) of this paragraph, prior to the expiration of the Lock-up Period, no public disclosure or filing
under the Exchange Act by any party to the transfer (donor, donee, transferor or transferee) shall be required, or made voluntarily,
reporting a reduction in beneficial ownership of Shares or Related Securities in connection with such transfer.
The undersigned also agrees and consents to the entry of stop
transfer instructions with the Company’s transfer agent and registrar against the transfer of Shares or Related Securities
held by the undersigned and the undersigned’s Family Members, if any, except in compliance with the foregoing restrictions.
With respect to the Offering only, the undersigned waives any
registration rights relating to registration under the Securities Act of the offer and sale of any Shares and/or any Related Securities
owned either of record or beneficially by the undersigned, including any rights to receive notice of the Offering.
The undersigned confirms that the undersigned has not, and has
no knowledge that any Family Member has, directly or indirectly, taken any action designed to or that might reasonably be expected
to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale of the
Shares. The undersigned will not take, and will cause any Family Member not to take, directly or indirectly, any such action.
Whether or not the Offering occurs as currently contemplated
or at all depends on market conditions and other factors. The Offering will be made only pursuant to the Underwriting Agreement,
the terms of which are subject to negotiation between the Company and the underwriters.
The undersigned hereby represents and warrants that the undersigned
has full power, capacity and authority to enter into this letter agreement. This letter agreement is irrevocable and will
be binding on the undersigned and the successors, heirs, personal representatives and assigns of the undersigned.
This letter agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
| |
|
| Signature |
|
| |
|
| |
|
| |
|
| Printed Name of Person Signing |
|
| |
|
| (Indicate capacity of person signing if signing as custodian or trustee, or on behalf of an entity) |
|
Annex A
Certain Defined Terms
Used in Lock-up Agreement
For purposes of the letter agreement to which this Annex
A is attached and of which it is made a part:
| · | “Call Equivalent Position” shall have
the meaning set forth in Rule 16a-1(b) under the Exchange Act. |
| · | “Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended. |
| · | “Family Member” shall mean the spouse
of the undersigned, an immediate family member of the undersigned or an immediate family member of the undersigned’s spouse,
in each case living in the undersigned’s household or whose principal residence is the undersigned’s household (regardless
of whether such spouse or family member may at the time be living elsewhere due to educational activities, health care treatment,
military service, temporary internship or employment or otherwise). “Immediate family member” as used
above shall have the meaning set forth in Rule 16a-1(e) under the Exchange Act. |
| · | “Lock-up Period” shall mean the period
beginning on the date hereof and continuing through the close of trading on the date that is 90 days after the date of the Prospectus
(as defined in the Underwriting Agreement). |
| · | “Put Equivalent Position” shall have
the meaning set forth in Rule 16a-1(h) under the Exchange Act. |
| · | “Related Securities” shall mean any
options or warrants or other rights to acquire Shares or any securities exchangeable or exercisable for or convertible into Shares,
or to acquire other securities or rights ultimately exchangeable or exercisable for or convertible into Shares. |
| · | “Securities Act” shall mean the Securities
Act of 1933, as amended. |
| · | “Sell or Offer to Sell” shall mean
to: |
| · | sell, offer to sell, contract to sell or lend, |
| · | effect any short sale or establish or increase a Put
Equivalent Position or liquidate or decrease any Call Equivalent Position, |
| · | pledge, hypothecate or grant any security interest in,
or |
| · | in any other way transfer or dispose of, |
in each case whether effected directly or indirectly.
| · | “Swap” shall mean any swap, hedge
or similar arrangement or agreement that transfers, in whole or in part, the economic risk of ownership of Shares or Related Securities,
regardless of whether any such transaction is to be settled in securities, in cash or otherwise. |
Capitalized terms not defined in this Annex A shall have
the meanings given to them in the body of the letter agreement to which this Annex A is attached.
Exhibit B
Directors, Officers and Others
Signing Lock-up Agreement
Directors:
Enrique Carrazana
Michael R. Dougherty
Seth H.Z. Fischer
Tim Mayleben
Nicole Vitullo
Officers:
Scott Braunstein
Joseph Hulihan
Edward Smith
Others:
None
