Exhibit 1.1
Execution
Version
MARINUS PHARMACEUTICALS, INC.
$60,000,000
Shares of Common Stock
EQUITY DISTRIBUTION AGREEMENT
Dated: July 9, 2020
TABLE OF CONTENTS
SECTION 1. |
Description
of Securities. |
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SECTION 2. |
Placements. |
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SECTION 3. |
Sale
of Placement Securities by the Placement Agent. |
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SECTION 4. |
Suspension
of Sales. |
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SECTION 5. |
Representations
and Warranties. |
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SECTION 6. |
Sale
and Delivery to the Placement Agent; Settlement. |
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SECTION 7. |
Covenants
of the Company. |
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SECTION 8. |
Payment
of Expenses. |
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SECTION 9. |
Conditions
of the Placement Agent’s Obligations. |
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SECTION 10. |
Indemnity
and Contribution by the Company and the Placement Agent. |
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SECTION 11. |
Representations,
Warranties and Agreements to Survive Delivery. |
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SECTION 12. |
Termination
of Agreement. |
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SECTION 13. |
Notices |
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SECTION 14. |
Parties |
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SECTION 15. |
Adjustments
for Stock Splits |
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SECTION 16. |
Governing
Law and Time |
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SECTION 17. |
Effect
of Headings |
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SECTION 18. |
Permitted
Free Writing Prospectuses |
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SECTION 19. |
Absence
of Fiduciary Relationship |
Exhibit A – Form of Placement Notice
Exhibit B – Authorized Individuals for Placement Notices and Acceptances
Exhibit C – Compensation
Exhibit D – Officer Certificate
Exhibit E – Issuer Free Writing Prospectuses
MARINUS PHARMACEUTICALS, INC.
$60,000,000
Shares of Common Stock
EQUITY DISTRIBUTION AGREEMENT
July 9, 2020
JMP Securities LLC
000 Xxxxxxxxxx Xxxxxx,
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Marinus Pharmaceuticals, Inc., a Delaware
corporation (the “Company”) confirms its agreement (this “Agreement”) with JMP Securities
LLC (the “Placement Agent”), as follows:
SECTION 1. Description
of Securities. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the
conditions set forth herein, it may issue and sell through the Placement Agent, acting as agent and/or principal, up to $60,000,000
of shares (the “Securities”) of the Company’s common stock, par value $0.001 per share (the “Common
Stock”). Notwithstanding anything to the contrary contained herein, except as set forth in a Placement Notice (as defined
below) the parties hereto agree that compliance with the limitations set forth in this Section 1 on the number of the Securities
issued and sold under this Agreement shall be the sole responsibility of the Company, and the Placement Agent shall have no obligation
in connection with such compliance. The issuance and sale of the Securities through the Placement Agent will be effected pursuant
to the Registration Statement (as defined below) filed by the Company and declared effective by the Securities and Exchange Commission
(the “Commission”), although nothing in this Agreement shall be construed as requiring the Company to use the
Registration Statement to offer, sell or issue the Securities.
The Company shall file, in accordance
with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively,
the “Securities Act”), with the Commission a registration statement on Form S-3, including a base
prospectus and a prospectus relating to the Securities to be issued from time to time by the Company, and which incorporates
by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”).
The Company will promptly furnish to the Placement Agent, for use by the Placement Agent, copies of the prospectus included
as part of such registration statement, and a prospectus supplement (the “Prospectus Supplement”), if any,
relating to the Securities. Except where the context otherwise requires, such registration statement, as amended when it
became effective, including all documents filed as part thereof or incorporated by reference therein, and including any
information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to
Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to
Rule 430B of the Securities Act (the “Rule 430B Information”), is herein called the
“Registration Statement.” The prospectus relating to the Securities, including all documents incorporated
therein by reference, included in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the
form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission
pursuant to Rule 424(b) under the Securities Act is herein called the “Prospectus.” Any
reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to
refer to and include the documents incorporated by reference therein, and any reference herein to the terms
“amend,” “amendment” or “supplement” with respect to the Registration Statement or the
Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission
deemed to be incorporated by reference therein. Any reference herein to financial statements and schedules and other
information that is “contained,” “included” or “stated” in the Registration Statement 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 that is incorporated by reference in the Registration Statement or the Prospectus, as the
case may be. Any reference herein to the Registration Statement, any Rule 462(b) Registration Statement, the
Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to the Commission’s Electronic Data Gathering, Analysis and Retrieval system
(“XXXXX”); all references in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer
Free Writing Prospectuses that, pursuant to Rule 433 under the Securities Act, are not required to be filed with the
Commission) shall be deemed to include the copy thereof filed with the Commission pursuant to XXXXX.
SECTION 2. Placements.
Each time that the Company wishes to issue and sell the Securities hereunder (each, a “Placement”), it will
notify the Placement Agent by email notice (or other method mutually agreed to in writing by the parties) containing the parameters
in accordance with which it desires the Securities to be sold, which shall at a minimum include the number of Securities to be
issued (the “Placement Securities”), the time period during which sales are requested to be made, any limitation
on the number of Securities that may be sold in any one day and any minimum price below which sales may not be made (a “Placement
Notice”), a form of which containing such minimum sales parameters necessary is attached hereto as Exhibit A.
The Placement Notice shall originate from any of the individuals from the Company set forth on Exhibit B (with a copy
to each of the other individuals from the Company listed on such exhibit), and shall be addressed to each of the individuals from
the Placement Agent set forth on Exhibit B, as such Exhibit B may be amended from time to time. If the
Placement Agent wishes to accept such proposed terms included in the Placement Notice (which it may decline to do so for any reason
in its sole discretion) or, following discussion with the Company, wishes to accept amended terms, the Placement Agent will, prior
to 4:30 p.m. (eastern time) on the Business Day (as defined below) following the Business Day on which such Placement Notice
is delivered to the Placement Agent, issue to the Company a notice by email (or other method mutually agreed to in writing by the
parties) addressed to all of the individuals from the Company and the Placement Agent set forth on Exhibit B) setting
forth the terms that the Placement Agent is willing to accept. Where the terms provided in the Placement Notice are amended as
provided for in the immediately preceding sentence, such terms will not be binding on the Company or the Placement Agent until
the Company delivers to the Placement Agent an acceptance by email (or other method mutually agreed to in writing by the parties)
of all of the terms of such Placement Notice, as amended (the “Acceptance”), which email shall be addressed
to all of the individuals from the Company and the Placement Agent set forth on Exhibit B. The Placement Notice (as
amended by the corresponding Acceptance, if applicable) shall be effective upon receipt by the Company of the Placement Agent’s
acceptance of the terms of the Placement Notice or upon receipt by the Placement Agent of the Company’s Acceptance, as the
case may be, unless and until (i) the entire amount of the Placement Securities have been sold, (ii) in accordance with
the Placement Notice requirements set forth in the second sentence of this paragraph, the Company terminates the Placement Notice,
(iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice,
(iv) this Agreement has been terminated under the provisions of Section 9 or Section 12 or (v) either party
shall have suspended the sale of the Placement Securities in accordance with Section 4 below. The amount of any discount,
commission or other compensation to be paid by the Company to the Placement Agent in connection with the sale of the Placement
Securities shall be calculated in accordance with the terms set forth in Exhibit C.
It is expressly acknowledged and agreed
that neither the Company nor the Placement Agent will have any obligation whatsoever with respect to a Placement or any Placement
Securities unless and until the Company delivers a Placement Notice to the Placement Agent and either (i) the Placement Agent
accepts the terms of such Placement Notice or (ii) where the terms of such Placement Notice are amended, the Company accepts
such amended terms by means of an Acceptance pursuant to the terms set forth above and the Acceptance has been received by the
Placement Agent, and then only upon the terms specified in the Placement Notice (as amended by the corresponding Acceptance, if
applicable) and herein. In the event of a conflict between the terms of this Agreement and the terms of a Placement Notice (as
amended by the corresponding Acceptance, if applicable), the terms of the Placement Notice (as amended by the corresponding Acceptance,
if applicable) will control. The term “Business Day” means each Monday, Tuesday, Wednesday, Thursday or Friday
that is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to
close.
SECTION 3. Sale
of Placement Securities by the Placement Agent. Subject to the provisions of Section 6(a), the Placement Agent, for the
period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales
practices to sell the Placement Securities up to the amount specified, and otherwise in accordance with the terms of such Placement
Notice (as amended by the corresponding Acceptance, if applicable). The Placement Agent will provide written confirmation to the
Company no later than the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made
sales of Placement Securities hereunder setting forth the number of Placement Securities sold on such day, the compensation payable
by the Company to the Placement Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below)
payable to the Company, with an itemization of the deductions made by the Placement Agent (as set forth in Section 6(b)) from
the gross proceeds that it receives from such sales. Subject to the terms of the Placement Notice (as amended by the corresponding
Acceptance, if applicable), the Placement Agent may sell Placement Securities by any method permitted by law deemed to be an “at
the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly
on the Nasdaq Global Market (the “Nasdaq”), on any other existing trading market for the Common Stock or to
or through a market maker. If specified in a Placement Notice (as amended by the corresponding Acceptance, if applicable), the
Placement Agent may also sell Placement Securities by any other method permitted by law, including but not limited to in privately
negotiated transactions. For the purposes hereof, “Trading Day” means any day on which shares of Common Stock
are purchased and sold on the principal market on which the Common Stock is listed or quoted and during which there has been no
market disruption of, unscheduled closing of or suspension of trading on such principal market.
SECTION 4. Suspension
of Sales. The Company or the Placement Agent may, upon notice to the other party in writing (including by email correspondence
to each of the individuals of the other party set forth on Exhibit B, if receipt of such correspondence is actually
acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately
by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth on Exhibit B),
suspend any sale of Placement Securities; provided, however, that such suspension shall not affect or impair either party’s
obligations with respect to any Placement Securities sold hereunder prior to the receipt of such notice. Each of the parties agrees
that no such notice under this Section 4 shall be effective against the other unless it is made to all of the individuals
of such other party named on Exhibit B hereto, as such Exhibit may be amended from time to time.
SECTION 5. Representations
and Warranties.
(a) Representations
and Warranties by the Company. The Company represents and warrants to the Placement Agent as of the date hereof and as of each
Representation Date (as defined herein) on which a certificate is required to be delivered pursuant to Section 7(o) of
this Agreement and as of the time of each sale of any Securities pursuant to this Agreement (the “Applicable Time”),
and agrees with the Placement Agent, as follows:
(1) Compliance
with Registration Requirements. Upon the effectiveness of the Registration Statement, the Securities will be duly registered
under the Securities Act pursuant to the Registration Statement. With respect to any registration statement to be filed to register
the offer and sale of the Securities pursuant to Rule 462(b) under the Securities Act, including the documents incorporated
by reference therein and the Rule 430B Information, (a “Rule 462(b) Registration Statement”),
such registration statement will be filed with the Commission and become effective under the Securities Act no later than 10:00
P.M. New York City time on the date of determination of the public offering price for the Securities, and no stop order preventing
or suspending the use of any base prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus
(as defined below), or the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement and
no proceedings for such purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for additional information has been complied with.
At the respective times each of the
Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto became or
becomes effective and as of the date hereof, the Registration Statement, any Rule 462(b) Registration Statement and
any amendments and supplements thereto complied and will comply in all material respects with the requirements of the
Securities Act. The conditions for the use of Form S-3, as set forth in the General Instructions thereto, have been
complied with and the Registration Statement meets, and the offering and sale of the Securities as contemplated hereby
complies with, the requirements of Rule 415(a)(1)(x) under the Securities Act (including without limitation,
Rule 415(a)(5)). The Registration Statement, as of the date hereof and each effective date with respect thereto, did not
and will not contain an 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. Neither the Prospectus nor any amendments or supplements thereto, as
of their respective dates, and at each Applicable Time and Settlement Date (as defined below), as the case may be, included
or will include an untrue statement of a material fact or omitted or will 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 immediately preceding paragraph shall not apply to statements in or omissions from the Registration Statement or the Prospectus,
as amended or supplemented, made in reliance upon and in conformity with information furnished to the Company in writing by the
Placement Agent expressly for use therein.
The copies of the Registration Statement and
any Rule 462(b) Registration Statement and any amendments and supplements thereto, any other preliminary prospectus,
each Issuer Free Writing Prospectus (as defined below) that is required to be filed with the Commission pursuant to Rule 433
under the Securities Act and the Prospectus and any amendments or supplements thereto delivered and to be delivered to the Placement
Agent (electronically or otherwise) in connection with the offering of the Securities were and will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T. “Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 under the
Securities Act, relating to the Securities that (i) is required to be filed with the Commission by the Company, (ii) is
a “road show” that is a “written communication” within the meaning of Rule 433(d)(8)(i) under
the Securities Act whether or not required to be filed with the Commission, or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) under
the Securities Act because it contains a description of the Securities or of the offering that does not reflect the final terms,
and all free writing prospectuses that are listed in Exhibit E hereto, in each case in the form furnished (electronically
or otherwise) to the Placement Agent for use in connection with the offering of the Securities.
Each Issuer Free Writing Prospectus relating
to the Securities, as of its issue date and as of each Applicable Time and Settlement Date, did not, does not and will not include
any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the
Prospectus, including any incorporated document deemed to be a part thereof that has not been superseded or modified; each Issuer
Free Writing Prospectus, as supplemented by and taken together with the Prospectus, as of its issue date, the Applicable Time and
Settlement Date, 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 light of the circumstances, prevailing at that time, not misleading. The foregoing sentence does
not apply to statements in or omissions from any issuer free writing prospectus based upon and in conformity with written information
furnished to the Company by the Placement Agent specifically for use therein.
Each document incorporated by reference in
the Registration Statement or the Prospectus heretofore filed, when it was filed (or, if any amendment with respect to any such
document was filed, when such amendment was filed), conformed in all material respects with the requirements of the Exchange Act,
and any further documents so filed and incorporated after the date of this Agreement will, when they are filed, conform in all
material respects with the requirements of the Exchange Act; no such document when it was filed (or, if an amendment with respect
to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and no
such document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required
to be stated therein or necessary in order to make the statements therein not misleading.
(2) Company
Capitalization. The Company has an authorized capitalization as set forth in the Prospectus; the outstanding shares of capital
stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable.
(3) Disclosure
Regarding Outstanding Securities. Except as disclosed in the Prospectus, there are no outstanding (A) securities or obligations
of the Company or the subsidiaries of the Company (if applicable) required to be set forth in Exhibit 21.1 to the Company’s
Form 10-K for the fiscal year ended December 31, 2019 (each a “Subsidiary,” and together, the “Subsidiaries”)
convertible into or exchangeable for any capital stock of or partnership interests, membership interests or other equity interests,
as the case may be, in the Company or any such Subsidiary, (B) warrants, rights or options to subscribe for or purchase from
the Company or any Subsidiary any such capital stock or any such convertible or exchangeable securities or obligations, or (C) obligations
of the Company or any Subsidiary to issue any securities or obligations, any such convertible or exchangeable securities or obligations,
or any such warrants, rights or options the existence of which, in each case (A), (B) and (C), is required to be disclosed
in the Registration Statement and the Prospectus and are not so disclosed.
(4) Good
Standing. Each of the Company and the Subsidiaries has been duly incorporated or organized and is validly existing as a corporation,
general or limited partnership or limited liability company, as the case may be, except to the extent, in the case of the Subsidiaries,
that the failure to be so organized or in good standing would not, individually or in the aggregate, reasonably be expected to
have any material adverse effect on, or change with respect to, the assets, business operation, earnings, prospects, properties
or financial condition, present or prospective, of the Company and its Subsidiaries taken as a whole (a “Material Adverse
Effect” or “Material Adverse Change”) and is in good standing under the laws of its respective jurisdiction
of incorporation or organization except to the extent that the failure to be so qualified or in good standing would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(5) Corporate
Power. Each of the Company and the Subsidiaries have the corporate, partnership or limited liability company power, as the
case may be, and authority to own their respective properties and conduct their respective businesses, each as described in each
of the Registration Statement and the Prospectus except to the extent that the failure to have such power or authority would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and, in the case of the Company, to
execute and deliver this Agreement and to consummate the transactions described in this Agreement.
(6) Foreign
Qualifications. The Company and the Subsidiaries are duly qualified or licensed and in good standing in each jurisdiction where
such qualification or license is required except where the failure, individually or in the aggregate, to be so qualified or licensed
would not reasonably be expected to have a Material Adverse Effect.
(7) No
Prohibition on Dividends Payable by the Subsidiaries. Except as disclosed in the Prospectus, no Subsidiary is contractually
prohibited or restricted, directly or indirectly, from paying dividends or from making any other distribution with respect to the
outstanding membership interests or other securities of such Subsidiary or from repaying to the Company or another subsidiary of
the Company any amounts which may from time to time become due under any loans or advances to such Subsidiary from the Company
or another subsidiary of the Company, or from transferring such Subsidiary’s property or assets to the Company or another
subsidiary of the Company except for any such prohibitions and restrictions that would not individually or in the aggregate reasonably
be expected to have a Material Adverse Effect or to the extent that any such restriction would currently materially limit the Company’s
ability to pay dividends or that would be reasonably likely to materially limit the future payment of dividends on Common Stock.
(8) Absence
of Defaults. Except as disclosed in the Prospectus, neither the Company nor any Subsidiary is in breach of or in default
under (nor has any event occurred which with notice, lapse of time, or both would constitute a breach of, or default under),
its respective organizational documents, or in the performance or observance of any obligation, agreement, covenant or
condition contained in any license, indenture, mortgage, deed of trust, loan or credit agreement or other agreement or
instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties or assets
is bound, except for such breaches or defaults which would not reasonably be expected to have a Material Adverse Effect.
(9) Absence
of Conflicts. The execution, delivery and performance of this Agreement and consummation of the transactions contemplated herein
will not (A) conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with
notice, lapse of time, or both would constitute a breach of, or default under): (1) any provision of the organizational documents
of the Company or any Subsidiary, or (2) any provision of any license, indenture, mortgage, deed of trust, loan or credit
agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which any of them or their respective
assets or properties may be bound or affected, or under any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or any Subsidiary, except in the case of clause (2) for such breaches
or defaults which could not reasonably be expected to have a Material Adverse Effect; or (B) result in the creation or imposition
of any lien, charge, claim or encumbrance upon any property or asset of the Company or any Subsidiary, except for such liens, charges,
claims or encumbrances which would not reasonably be expected to have a Material Adverse Effect.
(10) Authorization
of Agreement. This Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding
agreement of the Company enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, and by general equitable principles,
and except to the extent that the indemnification and contribution provisions of Section 10 hereof may be limited by federal
or state securities laws and public policy considerations in respect thereof.
(11) Absence
of Further Requirements. No approval, authorization, consent or order of or filing with any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or agency is required in connection with the Company’s execution,
delivery and performance of this Agreement, the consummation of the transactions contemplated herein by the Company, including
the Company’s issuance, sale and delivery of the Securities, other than (A) such as have been obtained, or will have
been obtained at the Settlement Date (as defined below), as the case may be, under the Securities Act and the Exchange Act, (B) any
necessary qualification under the securities or “blue sky” laws of the various jurisdictions in which the Securities
are being offered by the Placement Agent, or (C) any such approvals, authorizations, consents, orders, or filings that if
not obtained or made, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or
which would not reasonably be expected to have a material adverse effect on the Company’s ability to perform its agreed upon
obligations under this Agreement.
(12) Possession
of Licenses and Permits. Each of the Company and the Subsidiaries has all necessary licenses, authorizations, consents and
approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has
obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct their respective
businesses as described in the Prospectus, except to the extent that any failure to obtain or have any such licenses, authorizations,
consents or approvals or to make any such filings would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; neither the Company nor any of the Subsidiaries is in violation of, in default under, or has received
any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any
federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any
of the Subsidiaries, the effect of which would reasonably be expected to result in a Material Adverse Change.
(13) Permitted
Free Writing Prospectuses. Except for the Issuer Free Writing Prospectuses identified in Exhibit E hereto, the
Company has not prepared, used or referred to, and will not, without the prior written consent of the Placement Agent, prepare,
use or refer to, any Free Writing Prospectus.
(14) Company
Not an Ineligible Issuer. (i) At the earliest time after the filing of the Registration Statement that the Company
or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act)
of the Securities and (ii) as of the date hereof, the Company was not and is not an Ineligible Issuer (as defined in
Rule 405 of the Securities Act Regulations), without taking account of any determination by the Commission pursuant to
Rule 405 of the Securities Act that it is not necessary that the Company be considered an Ineligible Issuer.
(15) Filing
of Registration Statement. The Company filed the Registration Statement with the Commission before using any Issuer Free Writing
Prospectus.
(16) Absence
of Proceedings. Except as disclosed in the Prospectus, there are no actions, suits, proceedings, inquiries or investigations
pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary or, to the extent that such proceeding
affects the properties or assets of the Company or any Subsidiary, any of their respective officers and directors or to which the
properties, assets or rights of any such entity are subject, at law or in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority, arbitral panel or agency which could result in a judgment, decree,
award or order that would reasonably be expected to have a Material Adverse Effect.
(17) Financial
Statements. The consolidated financial statements of the Company and its subsidiaries present fairly the consolidated financial
position of the Company and its subsidiaries, as of the dates indicated and consolidated results of operations and changes in financial
position and cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted
accounting principles as applied in the United States and on a consistent basis during the periods involved and in accordance with
Regulation S-X promulgated by the Commission; the financial statement schedules included or incorporated by reference in the Prospectus
have been compiled on a basis consistent with the financial statements; no pro forma financial information, financial statements
or supporting schedules other than the historical financial statements are required to be included in the Registration Statement
or the Prospectus.
(18) Independent
Accountants. KPMG LLP, whose reports on the consolidated financial statements of the Company and its subsidiaries constitute
part of the Prospectus, is, and was during the periods covered by its reports, independent as required by the Securities Act.
(19) No
Material Adverse Change. Subsequent to the respective dates of the financial statements, and except as may be otherwise disclosed
in the Prospectus, there has not been (A) any Material Adverse Change or any development or transaction that would reasonably
be expected to result in a Material Adverse Change, whether or not arising in the ordinary course of business, (B) any transaction
that is material to the Company and the Subsidiaries taken as a whole, contemplated or entered into by the Company or any of the
Subsidiaries, (C) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any Subsidiary
that is material to the Company and the Subsidiaries taken as a whole or (D) any dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock or any Subsidiary on any of its equity interests.
(20) Description
of Securities. The Common Stock conforms in all material respects to the descriptions thereof contained in the Prospectus.
(21) Absence
of Registration Rights. Except as disclosed in the Prospectus, there are no persons with registration or other similar rights
to have any equity or debt securities of the Company or the Subsidiaries, including securities which are convertible into or exchangeable
or redeemable for equity securities of the Company or the Subsidiaries, registered pursuant to the Registration Statement or otherwise
registered by the Company under the Securities Act.
(22) Authorization
of Securities. The Securities have been duly authorized and, when issued and duly delivered against payment therefor as contemplated
by this Agreement, will be validly issued, fully paid and non-assessable, free and clear of any pledge, lien, encumbrance, security
interest or other claim, and the issuance and sale of the Securities by the Company is not subject to preemptive or other similar
rights arising by operation of law, under the organizational documents of the Company or any Subsidiary or under any agreement
to which the Company or any Subsidiary is a party or otherwise.
(23) Nasdaq.
The Common Stock has been registered under Section 12(b) of the Exchange Act and listed on the Nasdaq. The Company is
in compliance with the rules of the Nasdaq, including, without limitation, the requirements for continued listing of the Common
Stock on the Nasdaq, and there are no proceedings pending or, to the knowledge of the Company, threatened or contemplated, and
the Company has not received any notice from the Nasdaq regarding the revocation of such listing or otherwise regarding the delisting
of shares of the Common Stock from the Nasdaq. The Company has applied to have the Securities listed on the Nasdaq. The Company
will provide the Placement Agent with written notice of the approval of the Securities for listing on the Nasdaq, and, upon such
notice, the Securities will be approved for listing on the Nasdaq, subject to official notice of issuance;
(24) Absence
of Stabilization and Manipulation. The Company has not taken, directly or indirectly, any action which is designed to or which
has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Securities.
(25) Absence
of Registration Requirements. Neither the Company nor any of its affiliates (A) is required to register as a “broker”
or “dealer” in accordance with the provisions of the Exchange Act, or (B) directly, or indirectly through one
or more intermediaries, controls or has any other association with (within the meaning of Article I of the By-laws of the
Financial Industry Regulatory Authority (“FINRA”)) any member firm of FINRA.
(26) Form of
Certificates. The form of certificate used to evidence the Common Stock complies in all material respects with all applicable
statutory requirements, any applicable requirements of the organizational documents of the Company and the requirements of the
Nasdaq.
(27) Title
to Property. The Company and the Subsidiaries have good and marketable title in fee simple to all real property, if any, and
good title to all personal property, if any, owned by them, in each case free and clear of all liens, security interests, pledges,
charges, encumbrances, claims, restrictions, mortgages and defects in such title (collectively, the “Encumbrances”),
except such Encumbrances that are disclosed in the Prospectus or would not reasonably be expected to have a Material Adverse Effect;
any real or personal property leased by the Company or any Subsidiary is held under a lease which is a valid and binding agreement,
enforceable against the Company or such Subsidiary (to the extent a party thereto) and, to the Company’s knowledge, the other
parties thereto, except (A) as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally, and by general principles of equity, and except to the extent that the indemnification and contribution
provisions of Section 10 hereof may be limited by federal or state securities laws and public policy considerations in respect
thereof, (B) as otherwise disclosed in the Prospectus or (C) for such exceptions that would not reasonably be expected
to have a Material Adverse Effect.
(28) Mortgages.
Except as disclosed in the Prospectus, the mortgages, if any, encumbering any real property owned in fee simple by the Company
or a Subsidiary are not and will not be: (A) convertible (in the absence of foreclosure) into an equity interest in such real
property or in the Company or any Subsidiary, (B) cross-defaulted to any indebtedness other than indebtedness of the Company
or any of the Subsidiaries or (C) cross-collateralized to any property or assets not owned by the Company or any of the Subsidiaries.
(29) Description
of Legal Proceedings. The descriptions of legal or governmental proceedings, contracts, leases and other legal documents
in the Prospectus constitute fair and accurate summaries of such proceedings or documents, and there are no legal or
governmental proceedings, contracts, leases or other legal documents that are known to the Company of a character required to
be described in the Prospectus or filed as exhibits to the Registration Statement which are not so described or filed; all
agreements between the Company or any of the Subsidiaries and third parties expressly referenced in the Prospectus are legal,
valid and binding obligations of the Company or the Subsidiaries, to the extent a party thereto, and, to the knowledge of the
Company, of the other parties thereto, enforceable against the Company or Subsidiaries in accordance with their respective
terms, and, to the knowledge of the Company, of the other parties thereto, except to the extent enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by
general equitable principles and neither the Company nor any Subsidiary is in breach or default under any such agreements,
except to the extent that the indemnification and contribution may be limited by federal or state securities laws and public
policy considerations in respect thereof.
(30) Possession
of Intellectual Property. The Company and the Subsidiaries own or possess adequate licenses or other rights to use all material
patents, trademarks, service marks, trade names, copyrights, software licenses, trade secrets, other intangible property rights
and know-how (collectively, “Intangibles”) necessary for the Company and the Subsidiaries taken together as
a whole (the “Consolidated Company”) to conduct the business of the Consolidated Company as described in the
Prospectus, and neither the Company nor any Subsidiary has received notice of infringement of or conflict with (and the Company
and the Subsidiaries know of no such infringement of or conflict with) asserted rights of others with respect to any Intangibles
which could reasonably be expected to have a Material Adverse Effect.
(31) Accounting
Controls. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that, with
respect to the Consolidated Company, (A) transactions are executed in accordance with management’s general or specific
authorizations; (B) transactions are recorded as necessary to permit preparation of the consolidated financial statements
of the Company in conformity with generally accepted accounting principles as applied in the United States and to maintain asset
accountability; (C) access to assets is permitted only in accordance with management’s general or specific authorization;
and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(32) Disclosure
Controls. Except as disclosed in the Prospectus, (A) the Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act), which (1) are designed to ensure
that material information relating to the Company, including its consolidated subsidiaries, is made known to the Company’s
principal executive officer and its principal financial officer by others within those entities, particularly during the periods
in which the periodic reports required under the Exchange Act are being prepared, (2) have been evaluated for effectiveness
as of the end of the Company’s last fiscal year, and (3) are effective in all material respects to perform the functions
for which they were established, and (B) based on the evaluation of the Company’s disclosure controls and procedures
described above, the Company is not aware of (1) any material weakness in the design or operation of internal control over
financial reporting which is reasonably likely to adversely affect the Company’s ability to record, process, summarize and
report financial information, or (2) any fraud, whether or not material, that involves management or other employees who have
a significant role in the Company’s internal control over financial reporting. Except as disclosed in the Prospectus, since
the most recent evaluation of the Company’s disclosure controls and procedures described above, there have been no significant
changes in internal control over financial reporting or in other factors that could significantly affect internal control over
financial reporting.
(33) ERISA.
The Company and the Subsidiaries are in compliance in all material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”);
no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined
in ERISA) for which the Company or any of the Subsidiaries would have any material liability; neither the Company nor any of the
Subsidiaries has incurred and none of them expect to incur any material liability under (A) Title IV of ERISA with respect
to termination of, or withdrawal from, any “pension plan” or (B) Section 412 or 4971 of the Internal Revenue
Code of 1986, as amended, including the regulations and published interpretations thereunder (“Code”); each
“pension plan” for which the Company or any of the Subsidiaries would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action
or by failure to act, which would cause the loss of such qualification.
(34) Tax
Returns. The Company and each of the Subsidiaries has filed on a timely basis all material federal, state, local and foreign
tax returns required to be filed through the date hereof or have properly requested extensions thereof, and all such tax returns
are true, correct and complete in all material respects, and have paid all material taxes required to be paid, including any tax
assessment, fine or penalty levied against the Company or any of the Subsidiaries; and no tax deficiency has been asserted against
any such entity, nor does any such entity know of any tax deficiency which is likely to be asserted against any such entity which,
individually or in the aggregate, if determined adversely to any such entity, could reasonably be expected to have a Material Adverse
Effect; all material tax liabilities are adequately provided for on the respective books of such entities.
(35) Legal,
Tax or Accounting Advice. The Company has not relied upon the Placement Agent or legal counsel for the Placement Agent for
any legal, tax or accounting advice in connection with the offering and sale of the Securities.
(36) Insurance.
The Company maintains insurance, including title insurance (in each case, issued by insurers of recognized financial responsibility)
of the types and in the amounts generally deemed adequate for the business of the Company and its Subsidiary and generally consistent
with insurance coverage maintained by similar companies in similar businesses, including, but not limited to, directors and officers
liability insurance, title insurance, insurance covering real and personal property owned or leased by the Company and the Subsidiaries
against theft, damage, destruction, environmental liabilities, acts of vandalism, terrorism, earthquakes, floods and all other
risks customarily insured against, all of which insurance is in full force and effect.
(37) Environmental
Laws. The Company and the Subsidiaries have received all permits, licenses or other approvals required of them under applicable
federal, state, local and foreign occupational safety and health and environmental laws, regulations and rules to conduct
the business of the Consolidated Company, and the Company and the Subsidiaries are in compliance with all terms and conditions
of any such permits, licenses or approvals, except for any failure to have required permits, licenses or other approvals or to
comply with the terms and conditions of such permits, licenses or approvals which would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Change.
(38) Absence
of Impermissible Transactions. None of the Company, any of the Subsidiaries or, to the knowledge of the Company, any officer,
director, employee or agent purporting to act on behalf of the Company or any of the Subsidiaries has at any time (A) made
any contributions to any candidate for political office, or failed to disclose fully any such contributions, in violation of law,
(B) made any payment of funds or received or retained any funds in violation of any law, rule or regulation or of a character
required to be disclosed in the Prospectus, or (C) engaged in any material transactions, maintained any bank account or used
any material corporate funds except for transactions, bank accounts and funds which have been or are, as applicable, properly reflected
in the books and records of the Company and the Subsidiaries.
(39) Absence
of Indebtedness. Except as disclosed in the Prospectus, there are no material outstanding loans, advances or guarantees of
indebtedness by the Company or any of the Subsidiaries to or for the benefit of any of the officers or directors of the Company
or any officers and or directors of the Subsidiaries or any of the members of the immediate families of any such officers or directors.
(40) Issued
Securities. All securities issued by the Company, any of the Subsidiaries or any trusts established by the Company or any of
the Subsidiaries have been issued and sold in compliance with (A) all applicable federal and state securities laws and (B) the
applicable corporate or partnership law of the jurisdiction of incorporation or organization of the Company or Subsidiary, as applicable.
(41) Lessees.
Except as disclosed in the Prospectus, to the Company’s knowledge, no lessee of any portion of any of the real properties
leased or owned by the Company or any of the Subsidiaries (collectively, the “Properties”) is in default under
any of the leases governing such Properties and there is no event which, but for the passage of time or the giving of notice or
both, would constitute a default under any of such leases, except such defaults that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.
(42) Hazardous
Materials. To the Company’s knowledge neither the Company nor any of the Subsidiaries has any liability under any applicable
environmental, health, safety or similar law or otherwise relating to any Hazardous Material (as hereinafter defined) and there
are no notices of potential liability or claims pending or, to the knowledge of the Company, threatened against the Company or
any of the Subsidiaries or concerning any of the Properties under any applicable environmental, health, safety or similar law or
otherwise relating to any Hazardous Material, except for such liabilities or claims which would not reasonably be expected to have
a Material Adverse Effect; neither the Company nor any of the Subsidiaries or, to the knowledge of the Company, any other person,
has contaminated or caused conditions that threaten to contaminate any of the Properties with Hazardous Materials, except for such
contamination or threats of contamination which could not reasonably be expected to have a Material Adverse Effect; neither the
Properties nor any other land ever owned by the Company or any of the Subsidiaries is included on or, to the knowledge of the Company,
is proposed for inclusion on the National Priorities List pursuant to the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. § 9601 et seq., or any similar list or inventory of contaminated properties. As used herein, “Hazardous
Material” shall mean any hazardous material, hazardous waste, hazardous substance, hazardous constituent, toxic substance,
pollutant, contaminant, asbestos, petroleum, petroleum waste, radioactive material, biohazardous material, explosive or any other
material, the presence of which in the environment is prohibited, regulated, or serves as the basis of liability, as defined, listed,
or regulated by any applicable federal, state, or local environmental law, ordinance, rule, or regulation.
(43) Compliance
with Securities Laws. In connection with the offer and sale of the Securities, the Company has not offered shares of its Common
Stock or any other securities convertible into or exchangeable or exercisable or redeemable for Common Stock in a manner in violation
of the Securities Act; and the Company has not distributed and will not distribute any offering material in connection with the
offer and sale of the Securities except for the Prospectus Supplement, the Prospectus and any Issuer Free Writing Prospectus or
the Registration Statement.
(44) Lending
Relationship. Except as disclosed in the Prospectus, neither the Company nor any of its subsidiaries has any outstanding borrowings
from, or is a party to any line of credit, credit agreement or other credit facility or otherwise has a borrowing relationship
with, any bank or other lending institution affiliated with the Placement Agent, and the Company does not intend to use any of
the proceeds from the sale of the Securities to repay any debt owed to the Placement Agent or any affiliate thereof.
(45) Absence
of Finders’ Fees. The Company has not incurred any liability for any finder’s fees or similar payments in connection
with the transactions herein contemplated.
(46) No
Other Contracts. Other than this Agreement, there are no contracts, agreements or understandings between the Company or any
of its subsidiaries and any person that would give rise to a valid claim against the Company or any of its subsidiaries or the
Placement Agent for a brokerage commission, finder’s fee or other like payment with respect to the consummation of the transactions
contemplated by this Agreement.
(47) Proprietary
Trading by the Placement Agent. The Company acknowledges and agrees that the Placement Agent has informed the Company that
the Placement Agent may, to the extent permitted under the Securities Act and the Exchange Act, purchase and sell shares of Common
Stock for its own account while this Agreement is in effect, and shall be under no obligation to purchase Securities on a principal
basis pursuant to this Agreement, except as otherwise agreed by the Placement Agent in the Placement Notice (as amended by the
corresponding Acceptance, if applicable); provided, that no such purchase or sales shall take place while a Placement Notice is
in effect (except (i) as agreed by the Placement Agent in the Placement Notice (as amended by the corresponding Acceptance,
if applicable) or (ii) to the extent the Placement Agent may engage in sales of Placement Securities purchased or deemed purchased
from the Company as a “riskless principal” or in a similar capacity).
(48) FINRA
Matters. The Company meets the requirements for use of Form S-3 under the Securities Act specified in FINRA Conduct Rule 5110(B)(7)(C)(i).
(49) Related
Party Transactions. Except as disclosed in the Prospectus, no relationship, direct or indirect, exists between or among the
Company or any of the Subsidiaries on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company
or any of the Subsidiaries on the other hand, that is required by the Securities Act to be described in the Prospectus and which
is not so described.
(50) Compliance
with Xxxxxxxx-Xxxxx. The Company and the Subsidiaries and, to the knowledge of the Company, the officers and directors of the
Company and the Subsidiaries, in their capacities as such, are, and at the Settlement Date (as defined below) and any Applicable
Time will be, in compliance in all material respects with the provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated thereunder or implementing the provisions thereof (the “Xxxxxxxx-Xxxxx Act”).
(51) Investment
Company Act. The Company is not and, after giving effect to the offering and sale of the Securities, will not be an “investment
company”, as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(52) Statistical
and Market Data. The statistical and market related data included in the Prospectus are based on or derived from sources that
the Company believes to be reliable and accurate.
(b) Certificates.
Any certificate signed by any officer of the Company delivered to the Placement Agent or to counsel for the Placement Agent pursuant
to the terms or provisions of this Agreement shall be deemed a representation and warranty by the Company to the Placement Agent
as to the matters covered thereby.
SECTION 6. Sale
and Delivery to the Placement Agent; Settlement.
(a) Sale
of Placement Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, upon the Placement Agent’s acceptance of the terms of a Placement Notice or upon receipt by the Placement
Agent of an Acceptance, as the case may be, and unless the sale of the Placement Securities described therein has been declined,
suspended, or otherwise terminated in accordance with the terms of this Agreement, the Placement Agent, for the period specified
in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices to
sell such Placement Securities up to the amount specified, and otherwise in accordance with the terms of such Placement Notice.
The Company acknowledges and agrees that (i) there can be no assurance that the Placement Agent will be successful in selling
Placement Securities, (ii) the Placement Agent will incur no liability or obligation to the Company or any other person or
entity if it does not sell Placement Securities for any reason other than a failure by the Placement Agent to use its commercially
reasonable efforts consistent with its normal trading and sales practices to sell such Placement Securities as required under this
Section 6, and (iii) the Placement Agent shall be under no obligation to purchase Securities on a principal basis pursuant
to this Agreement, except as otherwise agreed by the Placement Agent in the Placement Notice (as amended by the corresponding Acceptance,
if applicable).
(b) Settlement
of Placement Securities. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Securities
will occur on the second (2nd) Trading Day (or such earlier day as is industry practice for regular-way trading) following the
date on which such sales are made (each, a “Settlement Date”). The amount of proceeds to be delivered to the
Company on a Settlement Date against receipt of the Placement Securities sold (the “Net Proceeds”) will be equal
to the aggregate sales price received by the Placement Agent at which such Placement Securities were sold, after deduction for
(i) the Placement Agent’s commission, discount or other compensation for such sales payable by the Company pursuant
to Section 2 hereof, (ii) any other amounts due and payable by the Company to the Placement Agent hereunder pursuant
to Section 8(a) hereof, and (iii) any transaction fees imposed by any governmental or self-regulatory organization
in respect of such sales.
(c) Delivery
of Placement Securities. On or before each Settlement Date, concurrently with the receipt by the Company of the Net
Proceeds due to the Company in respect of such Settlement Date, the Company will, or will cause its transfer agent to,
electronically transfer the Placement Securities being sold by crediting the Placement Agent’s or its designee’s
account (provided the Placement Agent shall have given the Company written notice of such designee prior to the Settlement
Date) at The Depository Trust Company through its Deposit and Withdrawal at Custodian System or by such other means of
delivery as may be mutually agreed upon by the parties hereto which in all cases shall be freely tradable, transferable,
registered shares in good deliverable form. On each Settlement Date, the Placement Agent will deliver the related Net
Proceeds in same day funds to an account designated by the Company on, or prior to, the Settlement Date. The Company agrees
that if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver Placement Securities on a
Settlement Date, the Company agrees that, in addition to and in no way limiting the rights and obligations set forth in
Section 10(a) hereto, it will (i) hold the Placement Agent harmless against any loss, claim, damage, or
expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the
Company and (ii) pay to the Placement Agent any commission, discount, or other compensation to which it would otherwise
have been entitled absent such default.
(d) Denominations;
Registration. If requested by the Placement Agent at least one Business Day prior to the Settlement Date, then in lieu of electronic
transfer, certificates for the Securities shall be delivered to the Placement Agent or its designee in such denominations and registered
in such names as the Placement Agent shall have specified in such request. The certificates for the Securities will be made available
for examination and packaging by the Placement Agent in The City of New York not later than noon (New York time) on the Business
Day prior to the Settlement Date.
SECTION 7. Covenants
of the Company. The Company covenants with the Placement Agent as follows:
(a) Registration
Statement Amendment. After the date of this Agreement and during any period in which a Prospectus relating to any Placement
Securities is required to be delivered by the Placement Agent under the Securities Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act), (i) the Company will notify the Placement Agent promptly
of the time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been
filed with the Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any
comment letter from the Commission or any request by the Commission for any amendment or supplement to the Registration Statement
or Prospectus or for additional information; (ii) the Company will prepare and file with the Commission, promptly upon the
Placement Agent’s request, any amendments or supplements to the Registration Statement or Prospectus that, in the Placement
Agent’s reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement Securities
by the Placement Agent (provided, however, that the failure of the Placement Agent to make such request shall not relieve the Company
of any obligation or liability hereunder, or affect the Placement Agent’s right to rely on the representations and warranties
made by the Company in this Agreement); (iii) the Company will not file any amendment or supplement to the Registration Statement
or Prospectus, other than documents incorporated by reference, relating to the Placement Securities or a security convertible into
the Placement Securities unless a copy thereof has been submitted to the Placement Agent within a reasonable period of time before
the filing and the Placement Agent has not reasonably objected thereto (provided, however, that the failure of the Placement Agent
to make such objection shall not relieve the Company of any obligation or liability hereunder, or affect the Placement Agent’s
right to rely on the representations and warranties made by the Company in this Agreement) and the Company will furnish to the
Placement Agent at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference
into the Registration Statement or Prospectus, except for those documents available via XXXXX; and (iv) the Company will cause
each amendment or supplement to the Prospectus, other than documents incorporated by reference, to be filed with the Commission
as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act (without reliance on Rule 424(b)(8) of
the Securities Act).
(b) Notice
of Commission Stop Orders. The Company will advise the Placement Agent, promptly after it receives notice or obtains
knowledge thereof, of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of any other order preventing or suspending the use of the Prospectus or any Issuer Free
Writing Prospectus, or of the suspension of the qualification of the Placement Securities for offering or sale in any
jurisdiction or of the loss or suspension of any exemption from any such qualification, or of the initiation or threatening
of any proceedings for any of such purposes, or of any examination pursuant to Section 8(e) of the Securities Act
concerning the Registration Statement or if the Company becomes the subject of a proceeding under Section 8A of the
Securities Act in connection with the offering of the Securities. The Company will make every reasonable effort to prevent
the issuance of any stop order, the suspension of any qualification of the Securities for offering or sale and any loss or
suspension of any exemption from any such qualification, and if any such stop order is issued or any such suspension or loss
occurs, to obtain the lifting thereof at the earliest possible moment.
(c) Delivery
of Registration Statement and Prospectus. Except to the extent such documents have been publicly filed with the Commission
pursuant to XXXXX, the Company will furnish to the Placement Agent and its counsel (at the expense of the Company) copies of the
Registration Statement, any Rule 462(b) Registration Statement, the Prospectus (including all documents incorporated
by reference therein) and all amendments and supplements to the Registration Statement or Prospectus, and any Issuer Free Writing
Prospectuses, that are filed with the Commission during any period in which a Prospectus relating to the Placement Securities is
required to be delivered under the Securities Act (including all documents filed with the Commission during such period that are
deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and in such quantities and at such
locations as the Placement Agent may from time to time reasonably request.
(d) Continued
Compliance with Securities Laws. If at any time when a Prospectus is required by the Securities Act to be delivered in connection
with a pending sale of the Placement Securities (including, without limitation, pursuant to Rule 172 under the Securities
Act), any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement together
with the Prospectus in order that the Prospectus will not include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary at any such time to amend the Registration Statement together with the
Prospectus in order to comply with the requirements of the Securities Act, the Company will promptly notify the Placement Agent
to suspend the offering of Placement Securities during such period and the Company will promptly prepare and file with the Commission
such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement and
the Prospectus comply with such requirements, and the Company will furnish to the Placement Agent such number of copies of such
amendment or supplement as the Placement Agent may reasonably request. If at any time following the issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted,
conflicts or would conflict with the information contained in the Registration Statement or the Prospectus or included, includes
or would include an untrue statement of a material fact or together with the Prospectus omitted, omits or would omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances, prevailing at that subsequent
time, not misleading, the Company will promptly notify the Placement Agent to suspend the offering of Placement Securities during
such period and the Company will, subject to Section 7(a) hereof, promptly amend or supplement such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) Blue
Sky and Other Qualifications. The Company will use its best efforts, in cooperation with the Placement Agent, to qualify the
Placement Securities for offering and sale, or to obtain an exemption for the Securities to be offered and sold, under the applicable
securities laws of such states and other jurisdictions (domestic or foreign) as the Placement Agent may designate and to maintain
such qualifications and exemptions in effect for so long as required for the distribution of the Securities (but in no event for
less than one year from the date of this Agreement); provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise
so subject. In each jurisdiction in which the Placement Securities have been so qualified or exempted, the Company will file such
statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the
case may be, in effect for so long as required for the distribution of the Placement Securities (but in no event for less than
one year from the date of this Agreement).
(f) Rule 158.
The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to
its securityholders as soon as practicable an earnings statement for
the purposes of, and to provide to the Placement Agent the benefits
contemplated by, the last paragraph of Section 11(a) of the Securities Act.
(g) Use
of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified
in the Prospectus under “Use of Proceeds.”
(h) Listing.
During any period in which the Prospectus relating to the Placement Securities is required to be delivered by the Placement Agent
under the Securities Act with respect to a pending sale of the Placement Securities (including in circumstances where such requirement
may be satisfied pursuant to Rule 172 under the Securities Act), the Company will use its commercially reasonable efforts
to cause the Placement Securities to be listed on the Nasdaq.
(i) Filings
and Compliance with the Nasdaq. The Company will (i) timely file with the Nasdaq all material documents and notices required
by the Nasdaq of companies that have securities traded on the Nasdaq, and (ii) comply, in all respects, with all rules and
requirements of the Nasdaq as applicable to companies traded on the Nasdaq.
(j) Reporting
Requirements. The Company, during any period when the Prospectus is required to be delivered under the Securities Act (including
in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), will file all documents
required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act.
(k) Notice
of Other Sales. During the pendency of any Placement Notice given hereunder, the Company shall provide the Placement Agent
notice as promptly as reasonably possible before it offers to sell, contracts to sell, sells, grants any option to sell or otherwise
disposes of any shares of Common Stock (other than Placement Securities offered pursuant to the provisions of this Agreement) or
securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire Common Stock; provided,
that such notice shall not be required in connection with the (i) issuance, grant or sale of restricted stock or restricted
stock units, Common Stock, LTIP units, options to purchase Common Stock, or Common Stock issuable upon the exercise of options,
or exercise or settlement of other equity awards pursuant to any stock option, stock bonus or other stock or compensatory plan
or arrangement described in the Prospectus, (ii) the issuance of securities in connection with an acquisition, merger or sale
or purchase of assets described in the Prospectus, or (iii) the issuance or sale of Common Stock pursuant to any dividend
reinvestment plan that the Company has in effect or may adopt from time to time, provided the implementation of such new plan is
disclosed to the Placement Agent in advance.
(l) Change
of Circumstances. The Company will, at any time during a fiscal quarter in which the Company intends to tender a Placement
Notice or sell Placement Securities, advise the Placement Agent promptly after it shall have received notice or obtained knowledge
thereof, of any information or fact that would alter or affect in any material respect any opinion, certificate, letter or other
document provided to the Placement Agent pursuant to this Agreement during such fiscal quarter.
(m) Due
Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by the Placement Agent
or its agents in connection with the transactions contemplated hereby, including, without limitation, providing information and
making available documents and senior officers, during regular business hours and at the Company’s principal offices, as
the Placement Agent may reasonably request.
(n) Disclosure
of Sales. The Company will, if applicable, disclose in its quarterly reports on Form 10-Q and in its annual report on
Form 10-K the number of Placement Securities sold through the Placement Agent during the most recent fiscal quarter, the Net
Proceeds to the Company and the compensation paid or payable by the Company to the Placement Agent with respect to such Placement
Securities.
(o) Representation
Dates; Certificate. On or prior to the date that the Securities are first sold pursuant to the terms of this Agreement and:
(i) following
the effective date of the Registration Statement, each time the Company files the Prospectus relating to the Placement Securities
or amends or supplements the Registration Statement or the Prospectus relating to the Placement Securities (other than amendments
or supplements that are filed solely to report sales of the Placement Securities pursuant to this Agreement) by means of a post-effective
amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration Statement or
the Prospectus relating to the Placement Securities;
(ii) each
time the Company files an annual report on Form 10-K under the Exchange Act;
(iii) each
time the Company files its quarterly reports on Form 10-Q under the Exchange Act; and
(iv) each
time the Company files a report on Form 8-K containing amended financial information (other than an earnings release, to “furnish”
information pursuant to Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K
relating to the reclassifications of certain properties as discontinued operations in accordance with Statement of Financial Accounting
Standards No. 144) under the Exchange Act (each date of filing of one or more of the documents referred to in clauses (i) through
(iv) shall be a “Representation Date”);
the Company shall furnish the Placement Agent with a certificate,
in the form attached hereto as Exhibit D, within two (2) Trading Days of any Representation Date. The requirement
to provide a certificate under this Section 7(o) shall be waived for any Representation Date occurring at a time at which
no Placement Notice is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Placement
Notice hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation
Date; provided, however, that such waiver shall not apply for any Representation Date on which the Company files its annual report
on Form 10-K. Notwithstanding the foregoing, if the Company subsequently decides to sell Placement Securities following a
Representation Date when the Company relied on such waiver and did not provide the Placement Agent with a certificate under this
Section 7(o), then before the Company delivers the Placement Notice or the Placement Agent sells any Placement Securities,
the Company shall provide the Placement Agent with a certificate, in the form attached hereto as Exhibit D, dated the
date of the Placement Notice.
(p) Legal
Opinions. On or prior to the date that the Securities are first sold pursuant to the terms of this Agreement and within two
(2) Trading Days after each Representation Date (excluding Representation Dates with regard to the time the Company files
its quarterly reports on Form 10-Q) with respect to which the Company is obligated to deliver a certificate in the form attached
hereto as Exhibit D for which no waiver is applicable, the Company shall cause to be furnished to the Placement Agent
(i) a written opinion of Xxxxx Lovells US LLP, corporate counsel to the Company (“Company Corporate Counsel”),
or other counsel satisfactory to the Placement Agent, in form and substance reasonably satisfactory to the Placement Agent and
its counsel, dated the date that the opinion is required to be delivered, and (ii), unless waived by the Placement Agent, a written
opinion of Xxxxxxx Procter LLP, counsel to the Placement Agent (“Counsel to the Placement Agent”), or other
counsel satisfactory to the Placement Agent, in form and substance reasonably satisfactory to the Placement Agent, dated the date
that the opinion is required to be delivered; provided, however, that in lieu of such opinions for subsequent Representation Dates,
counsel may furnish the Placement Agent with a letter (a “Reliance Letter”) to the effect that the Placement
Agent may rely on a prior opinion delivered under this Section 7(p) to the same extent as if it were dated the date of
such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus
as amended or supplemented at such Representation Date).
(q) Comfort
Letter. On or prior to the date that the Securities are first sold pursuant to the terms of this Agreement and within two
(2) Trading Days after each Representation Date (excluding Representation Dates with regard to the time the Company
files its quarterly reports on Form 10-Q) with respect to which the Company is obligated to deliver a certificate in the
form attached hereto as Exhibit D for which no waiver is applicable, the Company shall cause its independent
accountants (and any other independent accountants whose report is included in the Prospectus) to furnish the Placement Agent
letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, in form and substance
satisfactory to the Placement Agent, (i) confirming that they are an independent registered public accounting firm
within the meaning of the Securities Act, the Exchange Act and the PCAOB, (ii) stating, as of such date, the conclusions
and findings of such firm with respect to the financial information and other matters ordinarily covered by
accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(r) Market
Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that
constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities or (ii) sell, bid for, or purchase the Securities to be issued
and sold pursuant to this Agreement, or pay anyone any compensation for soliciting purchases of the Securities to be issued and
sold pursuant to this Agreement other than the Placement Agent; provided, however, that the Company may bid for and purchase its
Common Stock in accordance with Rule 10b-18 under the Exchange Act.
(s) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor its subsidiaries
will be or become, at any time prior to the termination of this Agreement, an “investment company,” as such term is
defined in the Investment Company Act, assuming no change in the Commission’s current interpretation as to entities that
are not considered an investment company.
(t) Securities
Act and Exchange Act. The Company will use its best efforts to comply with all requirements imposed upon it by the Securities
Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings
in, the Placement Securities as contemplated by the provisions hereof and the Prospectus.
(u) No
Offer to Sell. Other than a free writing prospectus (as defined in Rule 405 under the Securities Act) approved in advance
in writing by the Company and the Placement Agent in its capacity as principal or agent hereunder, the Company (including its agents
and representatives, other than the Placement Agent in its capacity as such) will not, directly or indirectly, make, use, prepare,
authorize, approve or refer to any free writing prospectus relating to the Securities to be sold by the Placement Agent as principal
or agent hereunder.
(v) Xxxxxxxx-Xxxxx
Act. The Company and its subsidiaries will use their best efforts to comply with all effective applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002.
(w) Regulation
M. If the Company has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M
under the Exchange Act are not satisfied with respect to the Company or the Common Stock, it shall promptly notify the Placement
Agent and sales of the Placement Securities under this Agreement shall be suspended until that or other exemptive provisions have
been satisfied in the judgment of each party.
SECTION 8. Payment
of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment and supplement thereto, (ii) the word processing, printing and
delivery to the Placement Agent of this Agreement and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Placement Securities, (iii) the preparation, issuance and delivery
of the certificates for the Placement Securities to the Placement Agent, including any stock or other transfer taxes and any
capital duties, stamp duties or other duties or taxes payable upon the sale, issuance or delivery of the Placement Securities
to the Placement Agent, (iii) the fees and disbursements of the counsel, accountants and other advisors to the Company,
(iv) the qualification or exemption of the Placement Securities under securities laws in accordance with the provisions
of Section 7(e) hereof, including filing fees and the reasonable fees and disbursements of counsel for the
Placement Agent in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplements
thereto, (v) the printing and delivery to the Placement Agent of copies of any Permitted Free Writing Prospectus and the
Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery of any of the
foregoing by the Placement Agent to investors, (vi) the fees and expenses of the transfer agent and registrar for the
Securities, (vii) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Placement
Agent in connection with, the review by FINRA of the terms of the sale of the Securities, (viii) the fees and expenses
incurred in connection with the listing of the Placement Securities on the Nasdaq, and (ix) the fees and disbursements
of counsel to the Placement Agent up to an amount equal to $30,000.
SECTION 9. Conditions
of the Placement Agent’s Obligations. The obligations of the Placement Agent hereunder with respect to a Placement will
be subject to the continuing accuracy and completeness of the representations and warranties of the Company contained in this Agreement
or in certificates of any officer of the Company, including the form of certificate set forth in Exhibit D attached
hereto, or any subsidiary of the Company delivered pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder, and to the following further conditions:
(a) Opinions
of Company Corporate Counsel and Counsel to the Placement Agent. On or prior to the date that Securities are first sold pursuant
to the terms of this Agreement, the Company shall furnish to the Placement Agent the opinion, addressed to the Placement Agent,
of Xxxxx Lovells US LLP, corporate counsel for the Company, or other counsel satisfactory to the Placement Agent, in form and substance
reasonably satisfactory to the Placement Agent and its counsel, dated the date that the opinion is required to be delivered. Unless
waived by the Placement Agent, Xxxxxxx Procter LLP, counsel to the Placement Agent, or other counsel satisfactory to the Placement
Agent, shall furnish to the Placement Agent, an opinion in form and substance reasonably satisfactory to the Placement Agent dated
the date that the opinion is required to be delivered.
(b) Effectiveness
of Registration Statement. The Registration Statement and any Rule 462(b) Registration Statement shall be effective
and shall be available for (i) all sales of Placement Securities issued pursuant to all prior Placement Notices and (ii) the
sale of all Placement Securities contemplated to be issued by any Placement Notice.
(c) No
Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company or any
of its subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority
during the period of effectiveness of the Registration Statement; (ii) the issuance by the Commission or any other federal
or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose; (iii) receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Placement Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; (iv) the occurrence of any event that makes any material statement made
in the Registration Statement or the Prospectus, or any Issuer Free Writing Prospectus, or any material document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in the
Registration Statement, the Prospectus, or any Issuer Free Writing Prospectus, or such documents so that, in the case of the Registration
Statement, it will not contain any materially untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus and any Issuer
Free Writing Prospectus, it will not contain any materially untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
(d) No
Misstatement or Material Omission. The Placement Agent shall not have advised the Company that the Registration Statement or
Prospectus, or any Issuer Free Writing Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact
that in the Placement Agent’s reasonable opinion is material, or omits to state a fact that in the Placement Agent’s
opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(e) No
Material Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the
Commission, there shall not have been any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business.
(f) Representation
Certificate. The Placement Agent shall have received the certificate required to be delivered pursuant to Section 7(o) on
or before the date on which delivery of such certificate is required pursuant to Section 7(o).
(g) Accountant’s
Comfort Letter. The Placement Agent shall have received the Comfort Letter required to be delivered pursuant Section 7(q) on
or before the date on which such delivery of such opinion is required pursuant to Section 7(q).
(h) Approval
for Listing. The Placement Securities shall have been approved for listing on the Nasdaq, subject only to notice of issuance.
(i) No
Suspension. Trading in the Securities shall not have been suspended on the Nasdaq.
(j) Additional
Documents. On each date on which the Company is required to deliver a certificate pursuant to Section 7(o), counsel for
the Placement Agent shall have been furnished with such documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of
the representations or warranties, or the fulfillment of any of the conditions, contained in this Agreement.
(k) Securities
Act and Exchange Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have
been filed prior to the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed
for such filing by Rule 424 under the Securities Act. The Company will have filed all documents required to be filed with
the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act.
(l) Termination
of Agreement. If any condition specified in this Section 9 shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Placement Agent by notice to the Company, and such termination shall be without liability
of any party to any other party except as provided in Sections 8 and 10 hereof and except that, in the case of any termination
of this Agreement, Sections 5, 10, 11 and 19 hereof shall survive such termination and remain in full force and effect.
SECTION 10. Indemnity and Contribution
by the Company and the Placement Agent.
(a) Indemnification
by the Company. The Company agrees to indemnify, defend and hold harmless the Placement Agent and any person who controls
the Placement Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any loss, expense, liability, damage or claim (including the reasonable cost of investigation) which, jointly or
severally, the Placement Agent or any controlling person may incur under the Securities Act, the Exchange Act or otherwise,
insofar as such loss, expense, liability, damage or claim arises out of or is based upon (1) any untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereof), any Issuer
Free Writing Prospectus that the Company has filed or was required to file with the Commission or the Prospectus (the term
Prospectus for the purpose of this Section 10 being deemed to include the Prospectus as of its date and as amended or
supplemented by the Company), (2) any omission or alleged omission to state a material fact required to be stated in any
such Registration Statement, or necessary to make the statements made therein not misleading, or (3) any omission or
alleged omission from any such Issuer Free Writing Prospectus or Prospectus of a material fact necessary to make the
statements made therein, in the light of the circumstances under which they were made, not misleading; except, in the case of
each of clauses (1), (2) and (3), insofar as any such loss, expense, liability, damage or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a material fact or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus and
any Issuer Free Writing Prospectus, in the light of the circumstances under which they were made) not misleading, in each
such case, to the extent contained in and in conformity with information furnished in writing by the Placement Agent to the
Company expressly for use therein (that information being limited to that described in Section 10(b) hereof). The
indemnity agreement set forth in this Section 10(a) shall be in addition to any liability which the Company may
otherwise have. If any action is brought against the Placement Agent or any controlling person in respect of which indemnity
may be sought against the Company pursuant to the foregoing paragraph of this Section 10(a), the Placement Agent shall
promptly notify the Company in writing of the institution of such action, and the Company, as the case may be, shall if it so
elects, assume the defense of such action, including the employment of counsel and payment of expenses; provided, however,
that any failure or delay to so notify the Company will not relieve the Company of any obligation hereunder, except to the
extent that its ability to defend is materially prejudiced by such failure or delay. The Placement Agent or such controlling
person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of the Placement Agent or such controlling person unless the employment of such counsel shall have
been authorized in writing by the Company in connection with the defense of such action, or the Company shall not have
employed counsel reasonably satisfactory to the Placement Agent or such controlling person, as the case maybe, to have charge
of the defense of such action within a reasonable time or such indemnified party or parties shall have reasonably concluded
(based on the advice of counsel) that there may be defenses available to it or them which are different from or additional to
those available to the Company (in which case the Company shall not have the right to direct the defense of such action on
behalf of the indemnified party or parties), in any of which events such fees and expenses shall be borne by the Company and
paid as incurred (it being understood, however, that the Company shall not be liable for the expenses of more than one
separate firm of attorneys for the Placement Agent or such controlling persons in any one action or series of related actions
in the same jurisdiction (other than local counsel in any such jurisdiction) representing the indemnified parties who are
parties to such action). Anything in this paragraph to the contrary notwithstanding, the Company shall not be liable for any
settlement of any such claim or action effected without its consent.
(b) Indemnification
by the Placement Agent. The Placement Agent agrees to indemnify, defend and hold harmless the Company, the Company’s
directors, the Company’s officers that signed the Registration Statement, any person who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, expense, liability,
damage or claim (including the reasonable cost of investigation) which, jointly or severally, the Company or any such person may
incur under the Securities Act, the Exchange Act or otherwise, insofar as such loss, expense, liability, damage or claim arises
out of or is based upon (1) any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereof), any Issuer Free Writing Prospectus that the Company has filed or was required to file with
the Commission, or the Prospectus, (2) any omission or alleged omission to state a material fact required to be stated in
any such Registration Statement, or necessary to make the statements made therein not misleading, or (3) any omission or alleged
omission from any such Issuer Free Writing Prospectus or the Prospectus of a material fact necessary to make the statements made
therein, in the light of the circumstances under which they were made, not misleading, but in each case only insofar as such untrue
statement or alleged untrue statement or omission or alleged omission was made in such Registration Statement, Issuer Free
Writing Prospectus or Prospectus in reliance upon and in conformity with information furnished in writing by the Placement Agent
to the Company expressly for use therein. The statements set forth in the last sentence of the eighth paragraph under the caption
“Plan of Distribution” in the Prospectus (to the extent such statements relate to the Placement Agent) constitute the
only information furnished by or on behalf of the Placement Agent to the Company for the purposes of Section 5(a)(1) and
this Section 10. The indemnity agreement set forth in this Section 10(b) shall be in addition to any liabilities
that the Placement Agent may otherwise have.
If any action is brought against the
Company or any such person in respect of which indemnity may be sought against the Placement Agent pursuant to the foregoing
paragraph, the Company or such person shall promptly notify the Placement Agent in writing of the institution of such action
and the Placement Agent shall, if it so elects, assume the defense of such action, including the employment of counsel and
payment of expenses; provided, however, that any failure or delay to so notify the Placement Agent will not relieve the
Placement Agent of any obligation hereunder, except to the extent that its ability to defend is materially prejudiced by such
failure or delay. The Company or such person shall have the right to employ its own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of the Company or such person unless the employment of such counsel
shall have been authorized in writing by the Placement Agent in connection with the defense of such action or the Placement
Agent shall not have employed counsel reasonably satisfactory to the Company or such person, as the case may be, to have
charge of the defense of such action within a reasonable time or such indemnified party or parties shall have reasonably
concluded (based on the advice of counsel) that there may be defenses available to it or them which are different from or
additional to those available to the Placement Agent (in which case the Placement Agent shall not have the right to direct
the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses
shall be borne by the Placement Agent and paid as incurred (it being understood, however, that the Placement Agent shall not
be liable for the expenses of more than one separate firm of attorneys in any one action or series of related actions in the
same jurisdiction (other than local counsel in any such jurisdiction) representing the indemnified parties who are parties to
such action). Anything in this paragraph to the contrary notwithstanding, the Placement Agent shall not be liable for any
settlement of any such claim or action effected without its written consent.
(c) Contribution.
If the indemnification provided for in this Section 10 is unavailable or insufficient to hold harmless an indemnified party
under subsections (a) and (b) of this Section 10 in respect of any losses, expenses, liabilities, damages or claims
referred to therein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute
to the amount paid or payable by such indemnified party as a result of such losses, expenses, liabilities, damages or claims (i) in
such proportion as is appropriate to reflect the relative benefits received by the Company and by the Placement Agent, each from
the offering of the Securities, or (ii) if (but only 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 and the Placement Agent in connection with the statements or omissions which resulted
in such losses, expenses, liabilities, damages or claims, as well as any other relevant equitable considerations. The relative
benefits received by the Company shall be deemed to be equal to the gross proceeds from the offering of Securities (before deducting
discounts and expenses) received by the Company and benefits received by the Placement Agent shall be deemed to be equal to the
underwriting discounts and commissions received the Placement Agent. The relative fault of the Company and of the Placement Agent
shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission relates to information supplied by the Company or by the Placement Agent and the intent of
the parties and their relative 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 and liabilities referred to above shall be deemed
to include any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending
any claim or action.
The Company and the Placement Agent agree
that it would not be just and equitable if contribution pursuant to this Section 10 were determined by pro rata allocation
or by any other method of allocation which does not take account of the equitable considerations referred to in clause (i) and,
if applicable, clause (ii) of subsection (c) above. Notwithstanding the provisions of this Section 10, the Placement
Agent shall not be required to contribute any amount in excess of the underwriting discounts and commissions applicable to the
Securities purchased by the Placement Agent and the liability of the Company pursuant to this Section 10 shall not exceed
the gross proceeds received by the Company in the offering. 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.
SECTION 11. Representations,
Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement or
in certificates of officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of the Placement Agent or controlling person, or by
or on behalf of the Company, and shall survive delivery of the Securities to the Placement Agent.
SECTION 12. Termination
of Agreement.
(a) Termination;
General. In addition to the right of the Placement Agent to terminate this Agreement pursuant to Section 9(l), the
Placement Agent may terminate this Agreement, by notice to the Company, as hereinafter specified at any time (i) if
there has been, since the time of execution of this Agreement or since the date as of which information is given in the
Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary
course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the judgment of the Placement Agent, impracticable or
inadvisable to market the Securities or to enforce contracts for the sale of the Securities, or (iii) if trading in the
Securities has been suspended or limited by the Commission or the Nasdaq, or if trading generally on the NYSE American, the
NYSE or the Nasdaq has been suspended or limited, or minimum or maximum prices for trading have been fixed, or maximum ranges
for prices have been required, by any of said exchanges or by order of the Commission, the FINRA or any other governmental
authority, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the
United States or in Europe, or (iv) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) Termination
by the Company. Notwithstanding any other provision of this Agreement, the Company shall have the right, by giving one (1) day’s
notice as hereinafter specified, to terminate this Agreement in its sole discretion at any time after the date of this Agreement.
Upon termination of this Agreement pursuant to this Section 12(b), any outstanding Placement Notices shall also be terminated.
(c) Termination
by the Placement Agent. Notwithstanding any other provision of this Agreement, the Placement Agent shall have the right, by
giving one (1) day’s notice as hereinafter specified, to terminate this Agreement in its sole discretion at any time
after the date of this Agreement.
(d) Automatic
Termination. Unless earlier terminated pursuant to this Section 12, this Agreement shall automatically terminate upon
the issuance and sale of all of the Placement Securities through the Placement Agent on the terms and subject to the conditions
set forth in this Agreement, including all Exhibits hereto, and in the Placement Notices (as amended by any corresponding Acceptance,
if applicable).
(e) Continued
Force and Effect. This Agreement shall remain in full force and effect until its termination pursuant to Sections 12(a), (b),
(c), or (d) above or otherwise by mutual agreement of the parties.
(f) Effectiveness
of Termination. Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided,
however, that such termination shall not be effective until the close of business on the date of receipt of such notice by the
Placement Agent or the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of
Placement Securities, such Placement Securities shall settle in accordance with the provisions of this Agreement.
(g) Liabilities.
If this Agreement is terminated pursuant to this Section 12, such termination shall be without liability of any party to any
other party except as provided in Sections 2 and 8 hereof, and except that, in the case of any termination of this Agreement, Section 5,
Section 10, Section 11 and Section 19 hereof shall survive such termination and remain in full force and effect.
SECTION 13. Notices.
Except as otherwise provided in this Agreement, all notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Placement Agent
shall be directed to the Placement Agent at JMP Securities LLC, 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000, Facsimile: (000) 000-0000, Attention: Equity Securities and notices to the Company shall be directed to it at the offices
of the Company at 5 Radnor Corporate Center, Xxxxx 000, 000 Xxxxxxxxxx Xx, Xxxxxx, Xxxxxxxxxxxx 00000, fax no. (000) 000-0000,
Attention of Chief Financial Officer.
SECTION 14. Parties.
This Agreement shall inure to the benefit of and be binding upon the Placement Agent, the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other
than the Placement Agent, the Company and their respective successors and the controlling persons and officers and directors referred
to in Section 10 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be
for the sole and exclusive benefit of the Placement Agent, the Company and their respective successors, and said controlling persons
and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Securities from the Placement Agent shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. Adjustments
for Stock Splits. The parties acknowledge and agree that all stock-related numbers contained in this Agreement shall be adjusted
to take into account any stock split, stock dividend or similar event effected with respect to the Securities.
SECTION 16. Governing Law and Time.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF
DAY REFER TO NEW YORK CITY TIME.
SECTION 17. Effect
of Headings. The Section and Exhibit headings herein are for convenience only and shall not affect the construction
hereof.
SECTION 18. Permitted
Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior consent of the Placement
Agent, and the Placement Agent represents, warrants and agrees that, unless it obtains the prior consent of the Company, it has
not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus, or that
would otherwise constitute a “free writing prospectus,” as defined in Rule 405 under the Securities Act, required
to be filed with the Commission. Any such free writing prospectus consented to by the Placement Agent or by the Company, as the
case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents and
warrants that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing
prospectus,” as defined in Rule 433 under the Securities Act, and has complied and will comply with the requirements
of Rule 433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including timely filing with the
Commission where required, legending and record keeping. For the purposes of clarity, the parties hereto agree that all free writing
prospectuses, if any, listed in Exhibit E hereto are Permitted Free Writing Prospectuses.
SECTION 19. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) the
Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Securities and in connection
with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory
relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees
or any other party, on the one hand, and the Placement Agent, on the other hand, has been or will be created in respect of any
of the transactions contemplated by this Agreement, irrespective of whether or not the Placement Agent has advised or is advising
the Company on other matters, and the Placement Agent has no obligation to the Company with respect to the transactions contemplated
by this Agreement except the obligations expressly set forth in this Agreement;
(b) the
public offering price of the Securities was not established by the Placement Agent; it is capable of evaluating and understanding,
and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the
Placement Agent has not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it
is aware that the Placement Agent and its respective affiliates are engaged in a broad range of transactions which may involve
interests that differ from or may conflict with those of the Company and the Placement Agent has no obligation to disclose such
interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; and
(e) it
waives, to the fullest extent permitted by law, any claims it may have against the Placement Agent for breach of fiduciary duty
or alleged breach of fiduciary duty and agrees that the Placement Agent shall not have any liability (whether direct or indirect,
in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim
on its behalf or in right of it or the Company, or the employees or creditors of Company.
SECTION 20. Entire
Agreement. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes and terminates that
certain Equity Distribution Agreement, dated October 31, 2017, by and between the Company and the Placement Agent, and all
prior and contemporaneous written or oral agreements, understandings and negotiations, in each case, effective immediately upon
effectiveness of the Registration Statement.
[Signature Page Follows]
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with
all counterparts, will become a binding agreement by and among the Placement Agent and the Company in accordance with its terms.
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Very truly yours, |
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MARINUS PHARMACEUTICALS, INC. |
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By: |
/s/ Xxxxxx X. Xxxxx |
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Name: |
Xxxxxx X. Xxxxx |
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Title: |
Vice President, Chief Financial Officer
and Treasurer |
CONFIRMED AND ACCEPTED, |
as of the date first above written: |
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JMP SECURITIES LLC |
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By: |
/s/ Xxxxx Xxxxxxx |
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Name: Xxxxx Xxxxxxx |
Title: Managing Director, Head of Healthcare Investment Banking |
EXHIBIT A
FORM OF PLACEMENT NOTICE
From: Marinus Pharmaceuticals, Inc.
Cc: [______________]
To: JMP Securities LLC
Subject: Equity Distribution—Placement Notice
Gentlemen:
Pursuant to the terms and subject to the conditions contained
in the Equity Distribution Agreement between Marinus Pharmaceuticals, Inc. (the “Company”) and JMP Securities
LLC (the “Placement Agent”) dated July 9, 2020 (the “Agreement”), I hereby request on behalf
of the Company that the Placement Agent sell up to [ ] shares of the Company’s common stock, par value $0.001 per share,
at a minimum market price of $[ ] per share.
[ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE
MAXIMUM AGGREGATE OFFERING PRICE, THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES THE SHARES MAY NOT
BE SOLD ON, THE MANNER IN WHICH SALES ARE TO BE MADE BY THE PLACEMENT AGENT, AND/OR THE CAPACITY IN WHICH THE PLACEMENT AGENT MAY ACT
IN SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH)]
EXHIBIT B
AUTHORIZED INDIVIDUALS FOR PLACEMENT NOTICES
AND ACCEPTANCES
JMP Securities LLC
Xxxxx Xxxxxxx, Managing Director
Xxx Xxxxxxxx, Chief Compliance Officer
Xxxxxxx Xxxxxxxx, Managing Director
Xxxxxx Xxxxx, Managing Director
Marinus Pharmaceuticals, Inc.
Xxxxx Xxxxxxxxxx, President and Chief Executive
Officer
Xxxxxx X. Xxxxx, Vice President, Chief Financial
Officer and Treasurer
EXHIBIT C
COMPENSATION
The Placement Agent shall be paid compensation equal to up to
3.0% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement.
EXHIBIT D
OFFICER CERTIFICATE
The undersigned Xxxxxx X. Xxxxx is the Vice
President, Chief Financial Officer and Treasurer of Marinus Pharmaceuticals, Inc., a Delaware corporation (the “Company”).
The undersigned hereby executes this Certificate in connection with the closing held as of the date hereof pursuant to the terms
of that certain Equity Distribution Agreement, dated July 9, 2020 (the “Equity Distribution Agreement”), among
the Company and JMP Securities LLC. Capitalized terms used herein without definition shall have the meanings given to such terms
in the Equity Distribution Agreement.
The undersigned hereby further certifies,
in his capacity as an officer of the Company, that:
| 1. | The representations and warranties of the Company in the Equity Distribution Agreement are true and correct in all material
respects, as if made on and as of the date hereof, and the Company has complied in all material respects with all of its obligations
thereunder and satisfied in all material respects all of the conditions on its part to be performed or satisfied at or prior to
the date hereof; |
| 2. | No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued
and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act of 1933, as amended; |
| 3. | Subsequent to the respective dates as of which information is given in the Registration Statement or the Prospectus, there
has not been (A) any Material Adverse Change, (B) any transaction, except as incurred in the ordinary course of business,
that is material to the Company and its subsidiaries taken as a whole, (C) any obligation, direct or contingent, except as
incurred in the ordinary course of business, that is material to the Company and its subsidiaries, taken as a whole, incurred by
the Company or the Subsidiaries, (D) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary
that is material to the Company and its subsidiaries, taken as a whole, or (E) any loss or damage (whether or not insured)
to the Properties which has been sustained or will have been sustained which could reasonably be expected to have a Material Adverse
Effect; and |
| 4. | Each of Xxxxx Lovells US LLP and Xxxxxxx Procter LLP, is entitled to rely on this Officers’ Certificate in connection
with the opinion that each firm is rendering pursuant to the Equity Distribution Agreement. |
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has
signed their names on this [ ] day of [ ], 20[ ].
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MARINUS PHARMACEUTICALS, INC. |
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By: |
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Name: |
Xxxxxx X. Xxxxx |
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Title: |
Vice President, Chief Financial Officer
and Treasurer |
EXHIBIT E
ISSUER FREE WRITING PROSPECTUSES
None.