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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
January 18, 2024
Esperion
Therapeutics, Inc.
(Exact name of Registrant as Specified in Its
Charter)
| Delaware |
|
001-35986 |
|
26-1870780 |
(State
or Other Jurisdiction
of Incorporation) |
|
(Commission
File Number) |
|
(IRS
Employer
Identification No.) |
3891
Ranchero Drive, Suite 150
Ann
Arbor, MI |
|
48108 |
| (Address
of Principal Executive Offices) |
|
(Zip
Code) |
Registrant’s Telephone Number, Including
Area Code: (734) 887-3903
Not Applicable
Former Name or Former Address, if Changed Since
Last Report
Check the appropriate box below if the Form 8-K filing
is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered
pursuant to Section 12(b) of the Act:
| Title of each class |
|
Trading
Symbol(s) |
|
Name of each exchange
on which registered |
| Common Stock, par value $0.001 per share |
|
ESPR |
|
NASDAQ Stock Market LLC |
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.
Emerging
growth company ¨
If an emerging
growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with
any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
¨
| Item 1.01 |
Entry into a Material Definitive Agreement. |
On January 18, 2024, Esperion Therapeutics, Inc. (the “Company”) entered into an Underwriting Agreement (the “Underwriting
Agreement”) with Jefferies LLC (“Jefferies”), as representative of the several underwriters listed on Schedule A thereto
(the “Underwriters”), related to an underwritten public offering (the “Offering”) of 56,700,000 shares of common
stock of the Company, par value $0.001 per share (“Common Stock”), at a purchase price to the public of $1.50 per share. The
Underwriters were also granted a 30-day option to purchase up to an additional 8,505,000 shares of Common Stock, at the public offering
price. On January 19, 2024, Jefferies gave notice to the Company of its election to exercise the option to purchase additional shares,
in full. Giving effect to the exercise of Underwriters' option, the Offering proceeds to the Company are expected to be approximately
$90.8 million, after deducting the underwriting discount and estimated offering expenses. The Offering is expected to close on January
23, 2024, subject to customary closing conditions.
The Company made certain customary representations,
warranties and covenants concerning the Company and the registration statement in the Underwriting Agreement and also agreed to indemnify
the Underwriters against certain liabilities, including liabilities under the Securities Act of 1933, as amended (the “Securities
Act”). The Offering is being made pursuant to the Company’s shelf registration statement on Form S-3 (File No. 333-264303),
filed with the Securities and Exchange Commission (the “Commission”) on April 15, 2022 and declared effective by the
Commission on April 26, 2022, as supplemented by a final prospectus supplement dated January 18, 2024, filed with the Commission
on January 22, 2024. This Current Report on Form 8-K does not constitute an offer to sell or a solicitation of an offer to buy
any of the shares of Common Stock.
The foregoing description of certain terms of
the Underwriting Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified
in its entirety by, the full text of the Underwriting Agreement, which is attached as Exhibit 1.1 hereto and is incorporated by reference
herein. A copy of the opinion of Goodwin Procter LLP, relating to the legality of the issuance and sale of shares of Common Stock in the
Offering is filed as Exhibit 5.1 hereto and is incorporated by reference herein.
On January 18, 2024, the Company issued a
press release announcing the Offering. On January 18, 2024, the Company issued a press release announcing that it had priced the
Offering. Copies of both press releases are attached hereto as Exhibits 99.1 and 99.2, respectively, and are each incorporated by reference
herein.
Forward Looking Statements
This Current Report on Form 8-K and certain
of the materials filed herewith contain forward-looking statements that are made pursuant to the safe harbor provisions of the federal
securities laws, including, without limitation, statements related to the timing and closing of the Offering, the satisfaction of customary
closing conditions related to the Offering and the estimated net proceeds from the Offering. These statements involve risks, uncertainties
and other factors that may cause actual results, levels of activity, performance, or achievements to be materially different from the
information expressed or implied by these forward-looking statements. Actual performance and results may differ materially from those
projected or suggested in the forward-looking statements due to various risks and uncertainties, including, among others: fluctuations
in the Company’s stock price, changes in market conditions, the satisfaction of customary closing conditions related to the Offering,
and the risks detailed in the Company’s filings with the Commission, including in the Company’s most recent Annual Report
on Form 10-K and in subsequent filings with the Commission. Any forward-looking statements contained in this Current Report on Form 8-K
and the materials filed herewith speak only as of the their respective dates, and the Company disclaims any obligation or undertaking
to update or revise any forward-looking statements, other than to the extent required by law.
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| |
|
|
|
ESPERION THERAPEUTICS, INC. |
| |
|
|
|
|
| Date: January 22, 2024 |
|
|
|
By: |
|
/s/ Sheldon Koenig |
| |
|
|
|
Name: |
|
Sheldon Koenig |
| |
|
|
|
Title: |
|
President and Chief Executive Officer |
Exhibit 1.1
56,700,000 Shares
Esperion Therapeutics, Inc.
UNDERWRITING AGREEMENT
January 18, 2024
JEFFERIES LLC
As Representative of the several Underwriters
c/o JEFFERIES LLC
520 Madison Avenue
New York, New York 10022
Ladies and Gentlemen:
Introductory.
Esperion Therapeutics, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the several
underwriters named in Schedule A (the “Underwriters”) an aggregate of 56,700,000 shares of its common stock,
par value $0.001 per share (the “Shares”). The 56,700,000 Shares to be sold by the Company are called the “Firm
Shares.” In addition, the Company has granted to the Underwriters an option to purchase up to an additional 8,505,000 Shares
as provided in Section 2. The additional 8,505,000 Shares to be sold by the Company pursuant to such option are collectively called
the “Optional Shares.” The Firm Shares and, if and to the extent such option is exercised, the Optional Shares are
collectively called the “Offered Shares.” Jefferies LLC (“Jefferies”) has agreed to act as representative
of the several Underwriters (in such capacity, the “Representative”) in connection with the offering and sale of the
Offered Shares. To the extent there are no additional underwriters listed on Schedule A, the term “Representative”
as used herein shall mean you, as Underwriter, and the term “Underwriters” shall mean either the singular or the plural, as
the context requires.
The
Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) a shelf registration
statement on Form S-3, File No. 333-264303, including a base prospectus (the “Base Prospectus”) to be used
in connection with the public offering and sale of the Offered Shares. Such registration statement, as amended, including the financial
statements, exhibits and schedules thereto, in the form in which it became effective under the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder (collectively, the “Securities Act”), including all documents
incorporated or deemed to be incorporated by reference therein and any information deemed to be a part thereof at the time of effectiveness
pursuant to Rule 430A or 430B under the Securities Act, is called the “Registration Statement.” Any registration
statement filed by the Company pursuant to Rule 462(b) under the Securities Act in connection with the offer and sale of the
Offered Shares is called the “Rule 462(b) Registration Statement,” and from and after the date and time of
filing of any such Rule 462(b) Registration Statement the term “Registration Statement” shall include the Rule 462(b) Registration
Statement. The preliminary prospectus supplement dated January 18, 2024 describing the Offered Shares and the offering thereof (the
“Preliminary Prospectus Supplement”), together with the Base Prospectus, is called the “Preliminary Prospectus,”
and the Preliminary Prospectus and any other prospectus supplement to the Base Prospectus in preliminary form that describes the
Offered Shares and the offering thereof and is used prior to the filing of the Prospectus (as defined below), together with the Base Prospectus,
is called a “preliminary prospectus.” As used herein, the term “Prospectus” shall mean the final
prospectus supplement to the Base Prospectus that describes the Offered Shares and the offering thereof (the “Final Prospectus
Supplement”), together with the Base Prospectus, in the form first used by the Underwriters to confirm sales of the Offered
Shares or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173
under the Securities Act. References herein to the Preliminary Prospectus, any preliminary prospectus and the Prospectus shall refer to
both the prospectus supplement and the Base Prospectus components of such prospectus. As used herein, “Applicable Time”
is 7:30 p.m. (New York City time) on January 18, 2024. As used herein, “free writing prospectus” has the
meaning set forth in Rule 405 under the Securities Act, and “Time of Sale Prospectus” means the Preliminary Prospectus,
as amended or supplemented immediately prior to the Applicable Time, together with the free writing prospectuses, if any, identified in
Schedule B hereto. As used herein, “Road Show” means a “road show” (as defined in Rule 433
under the Securities Act) relating to the offering of the Offered Shares contemplated hereby that is a “written communication”
(as defined in Rule 405 under the Securities Act).
All references in this Agreement to the Registration
Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus and the Prospectus shall include the documents
incorporated or deemed to be incorporated by reference therein. All references in this Agreement to financial statements and schedules
and other information which are “contained,” “included” or “stated” in, or “part of” the
Registration Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the
Base Prospectus, the Time of Sale Prospectus or the Prospectus, and all other references of like import, shall be deemed to mean and include
all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration
Statement, the Rule 462(b) Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus,
the Time of Sale Prospectus or the Prospectus, as the case may be. All references in this Agreement to amendments or supplements to the
Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus, the Time of Sale Prospectus or the
Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder (collectively, the “Exchange Act”) that is or is deemed to be incorporated
by reference in the Registration Statement, the Preliminary Prospectus, any preliminary prospectus, the Base Prospectus, or the Prospectus,
as the case may be. All references in this Agreement to (i) the Registration Statement, the Preliminary Prospectus, any preliminary
prospectus, the Base Prospectus or the Prospectus, any amendments or supplements to any of the foregoing, or any free writing prospectus,
shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”)
and (ii) the Prospectus shall be deemed to include any “electronic Prospectus” (as defined below) provided for use in
connection with the offering of the Offered Shares as contemplated by Section 3(n) of this Agreement.
The Company hereby confirms its agreements with
the Underwriters as follows:
Section 1. Representations
and Warranties of the Company. The Company hereby represents, warrants and covenants to each Underwriter, as of the date of this Agreement,
as of the First Closing Date (as hereinafter defined) and as of each Option Closing Date (as hereinafter defined), if any, as follows:
(a) Compliance
with Registration Requirements. The Registration Statement has become effective under the Securities Act. The Company has
complied, to the Commission’s satisfaction, with all requests of the Commission for additional or supplemental information, if any.
No stop order suspending the effectiveness of the Registration Statement is in effect and no proceedings for such purpose have been instituted
or are pending or, to the best knowledge of the Company, are contemplated or threatened by the Commission. At the time the Company’s
Annual Report on Form 10-K for the year ended December 31, 2022 (the “Annual Report”) was filed with the
Commission, or, if later, at the time the Registration Statement was originally filed with the Commission, the Company met the then-applicable
registrant requirements for use of Form S-3 under the Securities Act. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus, at the time they were or hereafter are filed
with the Commission, or became effective under the Exchange Act, as the case may be, complied and will comply in all material respects
with the requirements of the Exchange Act.
(b) Disclosure.
Each preliminary prospectus and the Prospectus when filed complied in all material respects with the Securities Act and, if filed by electronic
transmission pursuant to EDGAR, was identical (except as may be permitted by Regulation S-T under the Securities Act) to the copy
thereof delivered to the Underwriters for use in connection with the offer and sale of the Offered Shares. Each of the Registration Statement
and any post-effective amendment thereto, at the time it became or becomes effective and at all subsequent times, complied and will comply
in all material respects with the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements therein not misleading. As of the Applicable Time, the
Time of Sale Prospectus did not, and at the time of each sale of the Offered Shares and at the Closing Date (as defined in Section 2),
the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of
a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The Prospectus, as of its date and (as then amended or supplemented) at all subsequent times, did not
and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties set forth in
the three immediately preceding sentences do not apply to statements in or omissions from the Registration Statement or any post-effective
amendment thereto, or the Prospectus or the Time of Sale Prospectus, or any amendments or supplements thereto, made in reliance upon and
in conformity with written information relating to any Underwriter furnished to the Company in writing by the Representative expressly
for use therein, it being understood and agreed that the only such information consists of the information described in Section 8(b) below.
There are no contracts or other documents required to be described in the Time of Sale Prospectus or the Prospectus or to be filed as
an exhibit to the Registration Statement which have not been described or filed as required.
(c) Free
Writing Prospectuses; Road Show. As of the determination date referenced in Rule 164(h) under the Securities
Act, the Company was not, is not or will not be (as applicable) an “ineligible issuer” in connection with the offering of
the Offered Shares pursuant to Rules 164, 405 and 433 under the Securities Act. Each free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance
with the requirements of the Securities Act. Each free writing prospectus that the Company has filed, or is required to file, pursuant
to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies
or will comply in all material respects with the requirements of Rule 433 under the Securities Act, including timely filing with
the Commission or retention where required and legending, and each such free writing prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Offered Shares did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information contained in the Registration Statement, the Prospectus or any preliminary
prospectus and not superseded or modified. Except for the free writing prospectuses, if any, identified in Schedule B, and
electronic road shows, if any, furnished to you before first use, the Company has not prepared, used or referred to, and will not, without
your prior written consent, prepare, use or refer to, any free writing prospectus. Each Road Show, when considered together with the Time
of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(d) Form S-3.
The Company and the transactions contemplated by this Agreement meet the requirements for, and comply with the conditions for the use
of, Form S-3 under the Securities Act, including the transaction requirements set forth in General Instruction I.B.1 of such form.
The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d) of
the Exchange Act. The Company is not a shell company (as defined in Rule 405 of the Securities Act) and has not been a shell company
for at least twelve (12) calendar months previously and if it has been a shell company at any time previously, has filed current Form 10
information (as defined in Instruction I.B.6 of Form S-3) with the Commission at least twelve (12) calendar months previously reflecting
its status as an entity that is not a shell company. The Registration Statement meets the requirements set forth in Rule 415(a)(1)(x) under
the Securities Act and complies with said Rule, and the Prospectus Supplement will meet the requirements set forth in Rule 424(b).
(e) Distribution
of Offering Material By the Company. Prior to the later of (i) the expiration or termination of the option granted
to the several Underwriters in Section 2, and (ii) the completion of the Underwriters’ distribution of the Offered
Shares, the Company has not distributed and will not distribute any offering material in connection with the offering and sale of the
Offered Shares other than the Registration Statement, the Time of Sale Prospectus, the Prospectus, any free writing prospectus reviewed
and consented to by the Representative, and the free writing prospectuses, if any, identified on Schedule B hereto. The
Company has not distributed and will not distribute any offering material in connection with the offering other than the Registration
Statement and the prospectus supplement to the Base Prospectus that described the offering hereof.
(f) Financial
Information. The consolidated financial statements of the Company included or incorporated by reference
in the Registration Statement, the Time of Sale Prospectus and the Prospectus, if any, together with the related notes and schedules,
present fairly, in all material respects, the consolidated financial position of the Company and the Subsidiaries (as defined below) as
of the dates indicated and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company
for the periods specified and have been prepared in compliance with the requirements of the Securities Act and Exchange Act, and in conformity
with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis during the periods involved;
there are no financial statements (historical or pro forma) that are required to be included or incorporated by reference in the Registration
Statement, the Time of Sale Prospectus and the Prospectus that are not included or incorporated by reference as required; the Company
and the Subsidiaries (as defined below) do not have any material liabilities or obligations, direct or contingent (including any off-balance
sheet obligations), not described in the Registration Statement (excluding the exhibits thereto), the Time of Sale Prospectus and the
Prospectus; and all disclosures contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and
the Prospectus and any free writing prospectuses, if any, regarding “non-GAAP financial measures” (as such term is defined
by the rules and regulations of the Commission) comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K under
the Securities Act, to the extent applicable. The financial data set forth in each of the Registration Statement, the Time of Sale Prospectus
and the Prospectus fairly present the information set forth therein on a basis consistent with that of the audited financial statements
contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus. The interactive data in eXtensible Business Reporting
Language included or incorporated by reference in the Registration Statement and the Prospectus fairly presents the information called
for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(g) Conformity
with EDGAR Filing. The Preliminary Prospectus and Prospectus delivered to the Underwriters for use in connection with the
sale of the Offered Shares pursuant to this Agreement will be identical to the versions of the Preliminary Prospectus and Prospectus created
to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T.
(h) Organization.
The Company and each of its Subsidiaries are duly organized, validly existing as a corporation or other entity and in good standing under
the laws of their respective jurisdictions of organization. The Company and each of its Subsidiaries are duly licensed or qualified as
a foreign corporation or other entity for transaction of business and in good standing under the laws of each other jurisdiction in which
their respective ownership or lease of property or the conduct of their respective businesses requires such license or qualification,
and have all corporate or other organizational power and authority necessary to own or hold their respective properties and to conduct
their respective businesses as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, and as currently
carried on, except where the failure to be so qualified or in good standing or have such power or authority would not, individually or
in the aggregate, (i) affect the ability of the Company to consummate the transactions contemplated by this Agreement or perform
its obligations hereunder or (ii) have a material adverse effect on the assets, business, operations, earnings, properties, condition
(financial or otherwise), prospects, stockholders’ equity or results of operations of the Company and the Subsidiaries taken as
a whole, or prevent or materially interfere with consummation of the transactions contemplated hereby (a “Material Adverse Change”).
(i) Subsidiaries.
The subsidiaries set forth on Schedule C (collectively, the “Subsidiaries”), are the Company’s
only significant subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X promulgated by the Commission). The Company
owns, directly or indirectly, all of the equity interests of the Subsidiaries free and clear of any lien, charge, security interest, encumbrance,
right of first refusal or other restriction, and all the equity interests of the Subsidiaries are validly issued and are fully paid, nonassessable
and free of preemptive and similar rights. Except as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
no Subsidiary is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution
on such Subsidiary’s capital stock, from repaying to the Company any loans or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary of the Company.
(j) No
Violation or Default. Neither the Company nor any of its Subsidiaries is (i) in violation of its certificate of incorporation,
charter or by-laws or any other organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of
time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is
a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of
its Subsidiaries are subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any
governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any of its properties (“Governmental
Authority”) (as defined below), except, in the case of each of clauses (ii) and (iii) above, for any such violation
or default that would not, individually or in the aggregate, have a Material Adverse Change. To the Company’s knowledge, no other
party under any material contract or other agreement to which it or any of its Subsidiaries is a party is in default in any respect thereunder
where such default would have a Material Adverse Change.
(k) No
Material Adverse Change. Subsequent to the respective dates as of which information is given in the Registration
Statement, the Time of Sale Prospectus, the Prospectus and the free writing prospectuses, if any (including any document deemed incorporated
by reference therein), there has not been (i) any Material Adverse Change or the occurrence of any development that would reasonably
be expected to have a Material Adverse Change, (ii) any transaction which is material to the Company and the Subsidiaries taken as
a whole, (iii) any obligation or liability, direct or contingent (including any off-balance sheet obligations), incurred by the Company
or any Subsidiary, which is material to the Company and the Subsidiaries taken as a whole, (iv) any material change in the capital
stock or outstanding long-term indebtedness of the Company or any of its Subsidiaries or (v) any dividend or distribution of any
kind declared, paid or made on the capital stock of the Company or any Subsidiary, other than in each case above in the ordinary course
of business or as otherwise disclosed in the Registration Statement or Prospectus (including any document deemed incorporated by reference
therein).
(l) Capitalization.
The issued and outstanding shares of capital stock and other securities of the Company have been validly issued, are fully paid and nonassessable
and are not subject to any preemptive rights, rights of first refusal or similar rights. The Company has an authorized, issued and outstanding
capitalization as set forth in the Registration Statement and the Prospectus as of the dates referred to therein (other than the grant
of additional options under the Company’s existing option plans, or changes in the number of outstanding shares of common stock
of the Company (the “Common Stock”) due to the issuance of shares upon the exercise or conversion of securities exercisable
for, or convertible into, Common Stock (such securities being referred to as “Common Stock Equivalents”) outstanding
on the date hereof or any anti-dilution provisions of such outstanding securities) and such authorized capital stock conforms in all material
respects to the description thereof set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus. The description
of the securities of the Company in the Registration Statement, the Time of Sale Prospectus and the Prospectus is complete and accurate
in all material respects. Except as disclosed in or contemplated by the Registration Statement, the Time of Sale Prospectus or the Prospectus,
as of the date referred to therein, the Company does not have outstanding any options to purchase, or any rights or warrants to subscribe
for, or any securities or obligations convertible into, or exchangeable for, or any contracts or commitments to issue or sell, any shares
of capital stock or other securities.
(m) Authorization;
Enforceability. The Company has full legal right, power and authority to enter into this Agreement and perform the transactions
contemplated hereby. 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 to the extent that enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general
equitable principles.
(n) Authorization
of the Offered Shares. The Offered Shares have been duly authorized for issuance and sale pursuant to this
Agreement and, when issued and delivered by the Company against payment therefor pursuant to this Agreement, will be duly and validly
issued, fully paid and nonassessable, free and clear of any pledge, mortgage, hypothecation, lien, encumbrance, security interest or other
claim, including any statutory or contractual preemptive rights, resale rights, rights of first refusal or other similar rights, and will
be registered pursuant to Section 12 of the Exchange Act. The Offered Shares, when issued, will conform in all material respects
to the description thereof set forth in or incorporated into the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(o) No
Consents Required. No consent, approval, authorization, order, registration or qualification of or with any Governmental
Authority is required for the execution, delivery and performance by the Company of this Agreement, the issuance and sale by the Company
of the Offered Shares, except for such consents, approvals, authorizations, orders and registrations or qualifications as may be required
under applicable state securities laws or by the by-laws and rules of the Financial Industry Regulatory Authority (“FINRA”)
or the Nasdaq Stock Market ( “Nasdaq”) in connection with the sale of the Offered Shares. The Company meets the requirements
for exemption from filing as specified in FINRA Rule 5110(h)(1)(C).
(p) No
Preferential Rights. Except as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus,
or has otherwise been waived, (i) no person, as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Securities
Act (each, a “Person”), has the right, contractual or otherwise, to cause the Company to issue or sell to such Person
any Common Stock or shares of any other capital stock or other securities of the Company, (ii) no Person has any preemptive rights,
resale rights, rights of first refusal, rights of co-sale, or any other rights (whether pursuant to a “poison pill” provision
or otherwise) to purchase any Common Stock or shares of any other capital stock or other securities of the Company, (iii) no Person
has the right to act as an underwriter or as a financial advisor to the Company in connection with the offer and sale of the Offered Shares,
and (iv) no Person has the right, contractual or otherwise, to require the Company to register under the Securities Act, any Common
Stock or shares of any other capital stock or other securities of the Company, or to include any such shares or other securities in the
Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness of the Registration Statement
or the sale of the Offered Shares as contemplated thereby or otherwise.
(q) Independent
Public Accounting Firms. Ernst & Young LLP (the “Accountant”), whose report on the consolidated
financial statements of the Company is filed with the Commission as part of the Company’s most recent Annual Report on Form 10-K
filed with the Commission and incorporated by reference into the Registration Statement, the Time of Sale Prospectus and the Prospectus,
is and, during the periods covered by its report, was an independent registered public accounting firm within the meaning of the Securities
Act and the Public Company Accounting Oversight Board (United States). To the Company’s knowledge, the Accountant is not in violation
of the auditor independence requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”).
(r) Enforceability
of Agreements. All agreements between the Company and third parties expressly referenced in the Registration Statement,
the Time of Sale Prospectus and the Prospectus are legal, valid and binding obligations of the Company enforceable in accordance with
their respective terms, except to the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors’ rights generally and by general equitable principles and (ii) the indemnification provisions
of certain agreements may be limited by federal or state securities laws or public policy considerations in respect thereof.
(s) No
Litigation. Except as set forth in the Registration Statement, the Time of Sale Prospectus or the Prospectus, there are
no actions, suits or proceedings by or before any Governmental Authority pending, nor, to the Company’s knowledge, any audits or
investigations by or before any Governmental Authority, to which the Company or a Subsidiary is a party or to which any property of the
Company or any of its Subsidiaries is the subject that, individually or in the aggregate, if determined adversely to the Company or its
Subsidiaries, would reasonably be expected to have a Material Adverse Change and, to the Company’s knowledge, no such actions, suits,
proceedings, audits or investigations are threatened or contemplated by any Governmental Authority or threatened by others; and (i) there
are no current or pending audits, investigations, actions, suits or proceedings by or before any Governmental Authority that are required
under the Securities Act to be described in the Registration Statement, the Time of Sale Prospectus or Prospectus that are not so described;
and (ii) there are no contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration
Statement that are not so filed.
(t) All
Necessary Permits, etc. The Company and its Subsidiaries possess such permits, licenses, approvals, registrations,
exemption, clearances, consents and other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the business now operated by the Company (collectively, “Governmental Licenses”), including without
limitation, all such Governmental Licenses required by the U.S. Food and Drug Administration (“FDA”) or any similar
foreign regulatory authority (collectively, the “Regulatory Agencies”), except where the failure so to possess would
not, singly or in the aggregate, result in a Material Adverse Change. The Company and its subsidiaries are in compliance with the terms
and conditions of all Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a
Material Adverse Change. All of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in
a Material Adverse Change. The Company has fulfilled and performed all of its material obligations with respect to the Governmental Licenses
and, to the Company’s knowledge, no event has occurred which would result, or after notice or lapse of time could result, in revocation
or termination thereof or results in any other material impairment of the rights of the holder of any Governmental License. The Company
has not received any written notice of proceedings relating to the revocation or modification of any Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Change.
(u) Regulatory
Filings. Neither the Company nor any of its Subsidiaries has failed to file with the applicable Governmental Authority
(including the FDA or any foreign, federal, state or local Governmental Authority performing functions similar to those performed by the
FDA) any required filing, declaration, listing, registration, report or submission, except for such failures that, individually or in
the aggregate, would not reasonably be expected to have a Material Adverse Change; all such filings, declarations, listings, registrations,
reports or submissions were in compliance with applicable laws when filed and no deficiencies have been asserted by any applicable regulatory
authority with respect to any such filings, declarations, listings, registrations, reports or submissions, except for any deficiencies
that, individually or in the aggregate, would not have a Material Adverse Change. The Company has operated for the past five (5) years,
and currently is, in all material respects, in compliance with all Applicable Laws.
(v) Intellectual
Property. The Company and its Subsidiaries own, possess, license or have other rights to use, or could obtain on commercially
reasonable terms, all foreign and domestic patents, patent applications, trade and service marks, trade and service mark registrations,
trade names, copyrights, licenses, inventions, trade secrets, technology, Internet domain names, know-how and other intellectual
property (collectively, the “Intellectual Property”), necessary for the conduct of their respective businesses as now
conducted except to the extent that the failure to own, possess, license or otherwise hold adequate rights to use such Intellectual Property
would not, individually or in the aggregate, have a Material Adverse Change. Except as disclosed in the Registration Statement, the Time
of Sale Prospectus and the Prospectus (i) there are no rights of third parties to any such Intellectual Property owned by the Company
and its Subsidiaries, except for licenses granted in the ordinary course to third parties, or that could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Change; (ii) to the Company’s knowledge, there is no infringement by
third parties of any such Intellectual Property; (iii) there is no pending or, to the Company’s knowledge, threatened action,
suit, proceeding or claim by others challenging the Company’s and its Subsidiaries’ rights in or to any such Intellectual
Property, and the Company is unaware of any facts which could form a reasonable basis for any such action, suit, proceeding or claim;
(iv) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging
the validity or scope of any such Intellectual Property; (v) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others that the Company and its Subsidiaries infringe or otherwise violate any patent, trademark,
copyright, trade secret or other proprietary rights of others; (vi) to the Company’s knowledge, there is no third-party U.S.
patent or published U.S. patent application which contains claims for which an Interference Proceeding (as defined in 35 U.S.C. § 135),
or the equivalent in any other jurisdiction, has been commenced against any patent or patent application described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus as being owned by or licensed to the Company; and (vii) the Company and
its Subsidiaries have complied with the terms of each agreement pursuant to which Intellectual Property has been licensed to the Company
or such Subsidiary, and all such agreements are in full force and effect, except, in the case of any of clauses (i)-(vii) above,
for any such infringement by third parties or any such pending or threatened suit, action, proceeding or claim as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Change.
(w) Clinical
Studies. The preclinical studies and tests and clinical trials described in the Registration Statement, the Time of Sale
Prospectus and the Prospectus were, and, if still pending, are being conducted in all material respects in accordance with the experimental
protocols, procedures and controls pursuant to, where applicable, accepted professional and scientific standards for products or product
candidates comparable to those being developed by the Company; the descriptions of such studies, tests and trials, and the results thereof,
contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus are accurate and complete in all material respects;
the Company is not aware of any tests, studies or trials not described in the Registration Statement, the Time of Sale Prospectus and
the Prospectus, the results of which reasonably call into question the results of the tests, studies and trials described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus; and the Company has not received any written notice or correspondence from
the FDA or any foreign, state or local Governmental Authority exercising comparable authority or any institutional review board or comparable
authority requiring the termination, suspension, clinical hold or material modification of any tests, studies or trials.
(x) No
Material Defaults. Neither the Company nor any of the Subsidiaries has defaulted on any installment on indebtedness for
borrowed money or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Change. The Company has not (i) failed to pay any dividend or sinking fund installment on preferred
shares or (ii) defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term leases.
(y) Certain
Market Activities. Neither the Company nor any of its Subsidiaries has taken, directly or indirectly, any action designed
to or that might cause or result in stabilization or manipulation of the price of the Common Stock or of any other securities, including
any “reference security” (as defined in Rule 100 of Regulation M under the Exchange Act (“Regulation M”))
with respect to the Common Stock, whether to facilitate the sale or resale of the Offered Shares or otherwise, and has taken no action
which would directly or indirectly violate Regulation M or applicable foreign securities laws and rules.
(z) Broker/Dealer
Relationships. Neither the Company nor any of the Subsidiaries (i) is required to register as a “broker”
or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more
intermediaries, controls or is a “person associated with a member” or “associated person of a member” (within
the meaning set forth in the FINRA Manual).
(aa) No
Reliance. The Company has not relied upon the Underwriters or legal counsel for the Underwriters for any legal, tax or
accounting advice in connection with the offering and sale of the Offered Shares.
(bb) Taxes.
The Company and each of its Subsidiaries have filed all federal, state, local and foreign tax returns which have been required to be filed
and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being contested in
good faith, except where the failure to so file or pay would not reasonably be expected to have a Material Adverse Change. Except as otherwise
disclosed in or contemplated by the Registration Statement, the Time of Sale Prospectus or the Prospectus, no tax deficiency has been
determined adversely to the Company or any of its Subsidiaries which has had, or would reasonably be expected to have, individually or
in the aggregate, a Material Adverse Change. The Company has no knowledge of any federal, state, or other governmental tax deficiency,
penalty or assessment which has been or might be asserted or threatened against it which would reasonably be expected to have a Material
Adverse Change.
(cc) Title
to Real and Personal Property. The Company and its Subsidiaries have good and marketable title in fee simple to all items
of real property owned by them, good and valid title to all personal property described in the Registration Statement, the Time of Sale
Prospectus or the Prospectus as being owned by them, in each case free and clear of all mortgages, liens, encumbrances and claims, except
those matters that (i) do not materially interfere with the use made and proposed to be made of such property by the Company and
any of its Subsidiaries or (ii) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Change.
Any real or personal property described in the Registration Statement, the Time of Sale Prospectus or the Prospectus as being leased by
the Company and any of its Subsidiaries is held by them under valid, existing and enforceable leases, free and clear of all mortgages,
liens, encumbrances and claims, except those matters that (A) do not materially interfere with the use made or proposed to be made
of such property by the Company or any of its Subsidiaries or (B) would not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Change. Each of the properties of the Company and its Subsidiaries complies with all applicable codes, laws
and regulations (including, without limitation, building and zoning codes, laws and regulations and laws relating to access to such properties),
except for such failures to comply that would not, individually or in the aggregate, reasonably be expected to interfere in any material
respect with the use made and proposed to be made of such property by the Company and its Subsidiaries or otherwise have a Material Adverse
Change. None of the Company or its Subsidiaries has received from any Governmental Authorities any notice of any condemnation of, or zoning
change affecting, the properties of the Company and its Subsidiaries, and the Company knows of no such condemnation or zoning change which
is threatened, except for such that would not reasonably be expected to interfere in any material respect with the use made and proposed
to be made of such property by the Company and its Subsidiaries or otherwise have a Material Adverse Change, individually or in the aggregate.
(dd) Environmental
Laws. The Company and its Subsidiaries (i) are in compliance with any and all applicable federal, state, local and
foreign laws, rules, regulations, decisions and orders relating to the protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”); (ii) have received
and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their
respective businesses as described in the Registration Statement, the Time of Sale Prospectus or the Prospectus; and (iii) have not
received notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, except, in the case of any of clauses (i), (ii) or (iii) above, for any such
failure to comply or failure to receive required permits, licenses, other approvals or liability as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Change.
(ee) Disclosure
Controls. The Company and each of its Subsidiaries maintain systems of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general
or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. The Company’s internal control over financial reporting is effective
and the Company is not aware of any material weaknesses in its internal control over financial reporting (other than as set forth in the
Registration Statement, Time of Sale Prospectus or Prospectus). Since the date of the latest audited financial statements of the Company
included in the Prospectus, there has been no change in the Company’s internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting (other than as set
forth in the Registration Statement, Time of Sale Prospectus or Prospectus). The Company has established disclosure controls and procedures
(as defined in Exchange Act Rules 13a-15 and 15d-15) for the Company and designed such disclosure controls and procedures to ensure
that material information relating to the Company and each of its Subsidiaries is made known to the certifying officers by others within
those entities, particularly during the period in which the Company’s Annual Report on Form 10-K or Quarterly Report on Form 10-Q,
as the case may be, is being prepared. The Company’s certifying officers have evaluated the effectiveness of the Company’s
disclosure controls and procedures as of a date within 90 days prior to the filing date of the Form 10-K for the fiscal year most
recently ended (such date, the “Evaluation Date”). The Company presented in its Form 10-K for the fiscal
year most recently ended the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures
based on their evaluations as of the Evaluation Date and the disclosure controls and procedures are effective. Since the Evaluation Date,
there have been no significant changes in the Company’s internal controls (as such term is defined in Item 307(b) of Regulation S-K
under the Securities Act) or, to the Company’s knowledge, in other factors that could significantly affect the Company’s internal
controls.
(ff) Sarbanes-Oxley.
There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as
such, to comply in all material respects with any applicable provisions of the Sarbanes-Oxley Act and the rules and regulations promulgated
thereunder. Each of the principal executive officer and the principal financial officer of the Company (or each former principal executive
officer of the Company and each former principal financial officer of the Company as applicable) has made all certifications required
by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules, forms, statements and other documents required
to be filed by it or furnished by it to the Commission. For purposes of the preceding sentence, “principal executive officer”
and “principal financial officer” shall have the meanings given to such terms in the Sarbanes-Oxley Act.
(gg) Brokers. Neither
the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees, brokerage commissions or similar payments
in connection with the transactions herein contemplated, except as may otherwise exist with respect to or pursuant to this Agreement.
(hh) Labor
Disputes and Matters. Neither the Company or any of its Subsidiaries employs any person represented by a union or collective
bargaining unit. No labor disturbance by or dispute with employees of the Company or any of its Subsidiaries exists or, to the knowledge
of the Company, is threatened which would reasonably be expected to have a Material Adverse Change.
(ii) Investment
Company Act. Neither the Company nor any of the Subsidiaries is, or will be, either after receipt of payment for the
Offered Shares or after the application of the proceeds therefrom as described under “Use of Proceeds” in the Registration
Statement, the Time of Sale Prospectus or the Prospectus, required to register as an “investment company” or an entity “controlled”
by an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment
Company Act”).
(jj) Operations.
The operations of the Company and its Subsidiaries are and have been conducted at all times in material compliance with applicable financial
record keeping and reporting requirements of applicable law, including the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions to which the Company or its Subsidiaries are subject, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority
(collectively, the “Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental Authority
involving the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(kk) Off-Balance
Sheet Arrangements. There are no transactions, arrangements or other relationships between and/or among the Company, and/or
any of its affiliates and any unconsolidated entity, including, but not limited to, any structural finance, special purpose or limited
purpose entity (each, an “Off-Balance Sheet Transaction”) that would affect materially the Company’s liquidity
or the availability of or requirements for its capital resources, including those Off-Balance Sheet Transactions described in the Commission’s
Statement about Management’s Discussion and Analysis of Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321;
FR-61), required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus which have not been described
as required.
(ll) ERISA.
To the knowledge of the Company, each material employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed to by the Company
or any of its affiliates for employees or former employees of the Company and any of its Subsidiaries has been maintained in material
compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited
to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); no prohibited transaction, within the meaning
of Section 406 of ERISA or Section 4975 of the Code, has occurred which would result in a material liability to the Company
with respect to any such plan excluding transactions effected pursuant to a statutory or administrative exemption; and for each such plan
that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding
deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market value of the
assets of each such plan (excluding for these purposes accrued but unpaid contributions) exceeds the present value of all benefits accrued
under such plan determined using reasonable actuarial assumptions. Each of the material employee benefit plans of the Company complies
in all material respects with applicable law.
(mm) Forward-Looking
Statements. Each financial or operational projection or other “forward-looking statement” (as defined by Section 27A
of the Securities Act or Section 21E of the Exchange Act, or as defined by any other applicable securities laws) contained in the
Registration Statement, the Time of Sale Prospectus or the Prospectus (i) was so included by the Company in good faith and with reasonable
basis after due consideration by the Company of the underlying assumptions, estimates and other applicable facts and circumstances and
(ii) is accompanied by meaningful cautionary statements identifying those factors that could cause actual results to differ materially
from those in such forward-looking statement. No such statement was made with the knowledge of an executive officer or director of the
Company that it was false or misleading.
(nn) Margin
Rules. Neither the issuance, sale and delivery of the Offered Shares nor the application of the proceeds thereof by the
Company as described in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board of Governors.
(oo) Insurance.
The Company and each of its Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company and
each of its Subsidiaries reasonably believe are adequate for the conduct of their business and as is customary for companies engaged in
similar businesses in similar industries.
(pp) No
Improper Practices. (i) Neither the Company nor the Subsidiaries, nor any director, officer, or employee of the Company
or any Subsidiary nor, to the Company’s knowledge, any agent, affiliate or other person acting on behalf of the Company or any Subsidiary
has, in the past five years, made any unlawful contributions to any candidate for any political office (or failed fully to disclose any
contribution in violation of applicable law) or made any contribution or other payment to any official of, or candidate for, any federal,
state, municipal, or foreign office or other person charged with similar public or quasi-public duty in violation of any applicable law
or of the character required to be disclosed in the Prospectus; (ii) no relationship, direct or indirect, exists between or among
the Company or any Subsidiary or any affiliate of any of them, on the one hand, and the directors, officers and stockholders of the Company
or any Subsidiary, on the other hand, that is required by the Securities Act to be described in the Registration Statement, the Time of
Sale Prospectus and the Prospectus that is not so described; (iii) no relationship, direct or indirect, exists between or among the
Company or any Subsidiary or any affiliate of them, on the one hand, and the directors, officers, or stockholders of the Company or any
Subsidiary, on the other hand, that is required by the rules of FINRA to be described in the Registration Statement, the Time of
Sale Prospectus and the Prospectus that is not so described; (iv) there are no material outstanding loans or advances or material
guarantees of indebtedness by the Company or any Subsidiary to or for the benefit of any of their respective officers or directors or
any of the members of the families of any of them; and (v) the Company has not offered, or caused any placement agent to offer, Common
Stock to any person with the intent to influence unlawfully (A) a customer or supplier of the Company or any Subsidiary to alter
the customer’s or supplier’s level or type of business with the Company or any Subsidiary or (B) a trade journalist or
publication to write or publish favorable information about the Company or any Subsidiary or any of their respective products or services,
and, (vi) neither the Company nor any Subsidiary nor any director, officer or employee of the Company or any Subsidiary nor, to the
Company’s knowledge, any agent, affiliate or other person acting on behalf of the Company or any Subsidiary has (A) violated
or is in violation of any applicable provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any other applicable
anti-bribery or anti-corruption law (collectively, “Anti-Corruption Laws”), (B) promised, offered, provided, attempted
to provide or authorized the provision of anything of value, directly or indirectly, to any person for the purpose of obtaining or retaining
business, influencing any act or decision of the recipient or securing any improper advantage, or (C) made any payment of funds of
the Company or any Subsidiary or received or retained any funds in violation of any Anti-Corruption Laws.
(qq) No
Conflicts. Neither the execution of this Agreement, nor the issuance, offering or sale of the Offered Shares, nor the consummation
of any of the transactions contemplated herein, nor the compliance by the Company with the terms and provisions hereof will conflict with,
or will result in a breach of, any of the terms and provisions of, or has constituted or will constitute a default under, or has resulted
in or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant
to the terms of any contract or other agreement to which the Company may be bound or to which any of the property or assets of the Company
is subject, except (i) such conflicts, breaches or defaults as may have been waived and (ii) such conflicts, breaches and defaults
that would not reasonably be expected to have a Material Adverse Change; nor will such action result (x) in any violation of the
provisions of the organizational or governing documents of the Company, or (y) in any violation of the provisions of any statute
or any order, rule or regulation applicable to the Company or of any Governmental Authority having jurisdiction over the Company
other than, with respect to clause (y) only, any violation that would not have a Material Adverse Change; provided, however, that
such violation shall not have any adverse effect with respect to the Underwriters.
(rr) Sanctions.
(i) The Company represents that, neither the Company nor any of its Subsidiaries (collectively, the “Entity”)
or, any director, officer, employee, agent, affiliate or representative of the Entity, is a government, individual, or entity (in this
paragraph (rr), “Person”) that is, or is owned or controlled by a Person that is:
(A) the
subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”),
the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authorities, including
designation on OFAC’s Specially Designated Nationals and Blocked Persons List, OFAC’s Foreign Sanctions Evaders List or other
similar applicable legislation or rules (as amended, collectively, “Sanctions”), nor
(B) located,
organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with that country or territory
(including the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, the so-called
Donetsk People’s Republic, the so-called Luhansk People’s Republic, Cuba, Iran, North Korea and Syria) (the “Sanctioned
Countries”).
(ii) The
Entity represents and covenants that it will not, directly or indirectly, use the proceeds of this offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to
fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or
facilitation, is the subject of Sanctions or is a Sanctioned Country; or
(B) in
any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether
as underwriter, advisor, investor or otherwise).
(iii) The
Entity represents and covenants that, except as detailed in the Registration Statement and the Prospectus, for the past 5 years, it has
not engaged in, is not now engaging in, and will not engage in, any dealings or transactions with any Person, or in any country or territory,
that at the time of the dealing or transaction is or was the subject of Sanctions or is or was a Sanctioned Country.
(ss) Compliance
with Applicable Laws. Each of the Company and its Subsidiaries: (i) is and at all times has been in compliance with
all statutes, rules, or regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution,
marketing, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product manufactured or distributed by
the Company or its Subsidiaries, including, without limitation, (i) the Federal Food, Drug, and Cosmetic Act and the regulations
promulgated thereunder; (ii) all applicable federal, state, local and all applicable foreign health care related fraud and abuse
laws, including, without limitation, the U.S. Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the U.S. Physician Payment Sunshine
Act (42 U.S.C. § 1320a-7h), the U.S. Civil False Claims Act (31 U.S.C. Section 3729 et seq.), the criminal False Claims Law
(42 U.S.C. § 1320a-7b(a)), all criminal laws relating to health care fraud and abuse, including but not limited to 18 U.S.C. Sections
286 and 287, and the health care fraud criminal provisions under the U.S. Health Insurance Portability and Accountability Act of 1996
(“HIPAA”) (42 U.S.C. Section 1320d et seq.), the exclusion laws (42 U.S.C. § 1320a-7), the civil monetary
penalties law (42 U.S.C. § 1320a-7a), the statutes, regulations and directives of applicable government funded or sponsored healthcare
programs, and the regulations promulgated pursuant to such statutes; (iii) the Standards for Privacy of Individually Identifiable
Health Information, the Security Standards, and the Standards for Electronic Transactions and Code Sets promulgated under HIPAA, the Health
Information Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921 et seq.), and the regulations promulgated thereunder
and any state or non-U.S. counterpart thereof or other law or regulation the purpose of which is to protect the privacy of individuals
or prescribers; (iv) Medicare (Title XVIII of the Social Security Act); (v) Medicaid (Title XIX of the Social Security Act);
and (vi) any and all other applicable health care laws and regulations, (collectively, the “Applicable Laws”),
except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Change; (ii) has not received
any FDA Form 483, notice of adverse finding, warning letter, untitled letter or other written correspondence or notice from the FDA
or any other Governmental Authority alleging or asserting noncompliance with any Applicable Laws or any licenses, certificates, approvals,
clearances, authorizations, permits and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”);
(iii) possesses all material Authorizations and such Authorizations are valid and in full force and effect and are not in material
violation of any term of any such Authorizations; (iv) has not received written notice of any claim, action, suit, proceeding, hearing,
enforcement, investigation, arbitration or other action from any Governmental Authority or third party alleging that any product operation
or activity is in violation of any Applicable Laws or Authorizations and has no knowledge that any such Governmental Authority or third
party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (v) has not received written
notice that any Governmental Authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorizations
and has no knowledge that any such Governmental Authority is considering such action; (vi) has filed, obtained, maintained or submitted
all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required
by any Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions
and supplements or amendments were complete and correct on the date filed (or were corrected or supplemented by a subsequent submission);
and (vii) has not, either voluntarily or involuntarily, initiated, conducted, or issued or caused to be initiated, conducted or issued,
any recall, market withdrawal or replacement, safety alert, post-sale warning, “dear healthcare provider” letter, or other
notice or action relating to the alleged lack of safety or efficacy of any product or any alleged product defect or violation and, to
the Company’s knowledge, no third party has initiated, conducted or intends to initiate any such notice or action.
(tt) Statistical
and Market-Related Data. All statistical, demographic and market-related data included in the Registration Statement, the
Time of Sale Prospectus or the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate or
represent the Company’s good faith estimates that are made on the basis of data derived from such sources.
(uu) Stock
Exchange Listing. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed
on the Nasdaq Global Market of Nasdaq, and the Company has taken no action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Nasdaq Global Market of Nasdaq. The Company
has not received any notification that the Commission or Nasdaq is contemplating terminating such registration or listing. To the Company’s
knowledge, it is in compliance with all applicable listing requirements of Nasdaq, except as disclosed in the Registration Statement,
the Time of Sale Prospectus or the Prospectus.
(vv) Related-Party
Transactions. There are no business relationships or related-party transactions involving the Company or any of its Subsidiaries
or any other person required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus that have not
been described as required.
(ww) FINRA
Matters. All of the information provided to the Underwriters or to counsel for the Underwriters by the Company, its
counsel, its officers and directors and the holders of any securities (debt or equity) or options to acquire any securities of the Company
in connection with the offering of the Offered Shares is true, complete, correct and compliant with FINRA’s rules and any letters,
filings or other supplemental information provided to FINRA pursuant to FINRA rules is true, complete and correct.
(xx) Parties
to Lock-Up Agreements. As of the First Closing Date, the Company has furnished to the Underwriters a letter agreement
in the form attached hereto as Exhibit A (the “Lock-up Agreement”) from each of the persons listed
on Exhibit B. Such Exhibit B lists under an appropriate caption the directors and executive officers
of the Company. If any additional persons shall become directors or executive officers of the Company prior to the end of the Lock-up
Period (as defined in the Lock-up Agreement), the Company shall cause each such person, prior to or contemporaneously with their appointment
or election as a director or executive officer of the Company, to execute and deliver to Wainwright a Lock-up Agreement.
(yy) No
Rights to Purchase Offered Shares. The issuance and sale of the Offered Shares as contemplated hereby will not cause
any holder of any shares of capital stock, securities convertible into or exchangeable or exercisable for capital stock or options, warrants
or other rights to purchase shares or any other securities of the Company to have any right to acquire any shares of capital stock of
the Company.
(zz) No
Contract Terminations. Neither the Company nor any of its Subsidiaries has sent or received any communication regarding termination
of, or intent not to renew, any of the contracts or agreements referred to or described in the Registration Statement, the Time of Sale
Prospectus or the Prospectus, and no such termination or non-renewal has been threatened by the Company or any of its Subsidiaries or,
to the Company’s knowledge, any other party to any such contract or agreement, which threat of termination or non-renewal has not
been rescinded as of the date hereof.
(aaa) Integration.
Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf has, directly or indirectly, made any offers
or sales of any security or solicited any offers to buy any security, under circumstances that would cause the offering of the Offered
Shares to be integrated with prior offerings by the Company for purposes of the Securities Act that would require the registration of
any such securities under the Securities Act.
(bbb) Cybersecurity.
The Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all
material respects as required in connection with the operation of the business of the Company and its Subsidiaries as currently conducted,
free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its Subsidiaries
have implemented and maintained commercially reasonable physical, technical and administrative controls, policies, procedures, and safeguards
to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all
IT Systems and data, including “Personal Data” (including all personal, personally identifiable, sensitive, confidential
or regulated data), used in connection with their businesses. There have been no breaches, violations, outages or unauthorized uses of
or accesses to same, except for those that have been remedied without material cost or liability or the duty to notify any other person,
nor any incidents under internal review or investigations relating to the same. The Company and its Subsidiaries are presently in material
compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental
or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal
Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
(ccc) Compliance
with Data Privacy Laws. The Company and its Subsidiaries are, and at all prior times were, in material compliance with
all applicable state and federal data privacy and security laws and regulations, including without limitation HIPAA, and the Company and
its subsidiaries have taken commercially reasonable actions to prepare to comply with, and since May 25, 2018, have been and currently
are in compliance with, the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively,
the “Privacy Laws”). To ensure compliance with the Privacy Laws, the Company and its Subsidiaries have in place, comply
with, and take appropriate steps reasonably designed to ensure compliance in all material respects with their policies and procedures
relating to data privacy and security and the collection, storage, use, disclosure, handling, and analysis of Personal Data (the “Policies”).
The Company and its Subsidiaries have at all times made all disclosures to users or customers required by applicable laws and regulatory
rules or requirements, and none of such disclosures made or contained in any Policy have, to the knowledge of the Company, been inaccurate
or in violation of any applicable laws and regulatory rules or requirements in any material respect. The Company further certifies
that neither it nor any subsidiary: (i) has received notice of any actual or potential liability under or relating to, or actual
or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition that would reasonably be expected to
result in any such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation, or other
corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement that imposes any obligation
or liability under any Privacy Law.
Any certificate signed by any officer of the Company
or any of its Subsidiaries and delivered to any Underwriter or to counsel for the Underwriters in connection with the offering, or the
purchase and sale, of the Offered Shares shall be deemed a representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
The Company has a reasonable
basis for making each of the representations set forth in this Section 1. The Company acknowledges that the Underwriters and, for
purposes of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Company and counsel to the Underwriters, will
rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance.
Section 2. Purchase,
Sale and Delivery of the Offered Shares.
(a) The
Firm Shares. Upon the terms herein set forth, the Company agrees to issue and sell to the several Underwriters an aggregate of
56,700,000 Firm Shares. On the basis of the representations, warranties and agreements herein contained, and upon the terms but subject
to the conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from the Company the respective number
of Firm Shares set forth opposite their names on Schedule A. The purchase price per Firm Share to be paid by the several Underwriters
to the Company shall be $1.395 per share.
(b) The
First Closing Date. Delivery of certificates for the Firm Shares to be purchased by the Underwriters and payment therefor shall
be made at the offices of Paul Hastings LLP, The MetLife Building, 200 Park Avenue, New York, New York 10166 (or such other place as may
be agreed to by the Company and the Representative) at 9:00 a.m. New York City time, on January 23, 2024, or such other time
and date not later than 1:30 p.m. New York City time, on January 23, 2024 as the Representative shall designate by notice
to the Company (the time and date of such closing are called the “First Closing Date”). The Company hereby acknowledges
that circumstances under which the Representative may provide notice to postpone the First Closing Date as originally scheduled include,
but are not limited to, any determination by the Company or the Representative to recirculate to the public copies of an amended or supplemented
Prospectus or a delay as contemplated by the provisions of Sections 10 and 18.
(c) The
Optional Shares; Option Closing Date. In addition, on the basis of the representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set forth, the Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to an aggregate of 8,505,000 Optional Shares from the Company at the purchase price per share
to be paid by the Underwriters for the Firm Shares, less an amount per share equal to any dividend or distribution declared by the Company
and payable on the Firm Shares but not payable on Optional Shares. The option granted hereunder may be exercised at any time and from
time to time in whole or in part upon notice by the Representative to the Company, which notice may be given at any time within 30 days
from the date of this Agreement. Such notice shall set forth (i) the aggregate number of Optional Shares as to which the Underwriters
are exercising the option and (ii) the time, date and place at which certificates for the Optional Shares will be delivered (which
time and date may be simultaneous with, but not earlier than, the First Closing Date; and in the event that such time and date are simultaneous
with the First Closing Date, the term “First Closing Date” shall refer to the time and date of delivery of certificates
for the Firm Shares and such Optional Shares). Any such time and date of delivery, if subsequent to the First Closing Date, is called
an “Option Closing Date,” and shall be determined by the Representative and shall not be earlier than two or later
than five full business days after delivery of such notice of exercise. If any Optional Shares are to be purchased, each Underwriter agrees,
severally and not jointly, to purchase the number of Optional Shares (subject to such adjustments to eliminate fractional shares as the
Representative may determine) that bears the same proportion to the total number of Optional Shares to be purchased as the number of Firm
Shares set forth on Schedule A opposite the name of such Underwriter bears to the total number of Firm Shares. The Representative
may cancel the option at any time prior to its expiration by giving written notice of such cancellation to the Company.
(d) Public
Offering of the Offered Shares. The Representative hereby advises the Company that the Underwriters intend to offer for sale to
the public, initially on the terms set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, their respective
portions of the Offered Shares as soon after this Agreement has been executed as the Representative, in its sole judgment, has determined
is advisable and practicable.
(e) Payment
for the Offered Shares. (i) Payment for the Offered Shares to be sold by the Company shall be made at the First Closing Date
(and, if applicable, at each Option Closing Date) by wire transfer of immediately available funds to the order of the Company.
(ii) It
is understood that the Representative has been authorized, for its own account and the accounts of the several Underwriters, to accept
delivery of and receipt for, and make payment of the purchase price for, the Firm Shares and any Optional Shares the Underwriters have
agreed to purchase. Jefferies, individually and not as the Representative of the Underwriters, may (but shall not be obligated to) make
payment for any Offered Shares to be purchased by any Underwriter whose funds shall not have been received by the Representative by the
First Closing Date or the applicable Option Closing Date, as the case may be, for the account of such Underwriter, but any such payment
shall not relieve such Underwriter from any of its obligations under this Agreement.
(f) Delivery
of the Offered Shares. The Company shall deliver, or cause to be delivered to the Representative for the accounts of the several
Underwriters, certificates for the Firm Shares at the First Closing Date, against release of a wire transfer of immediately available
funds for the amount of the purchase price therefor. The Company shall also deliver, or cause to be delivered to the Representative for
the accounts of the several Underwriters, certificates for the Optional Shares the Underwriters have agreed to purchase at the First Closing
Date or the applicable Option Closing Date, as the case may be, against the release of a wire transfer of immediately available funds
for the amount of the purchase price therefor. If Jefferies so elects, delivery of the Offered Shares may be made by credit to the accounts
designated by Jefferies through The Depository Trust Company’s full fast transfer or DWAC programs. If Jefferies so elects, the
certificates for the Offered Shares shall be registered in such names and denominations as the Representative shall have requested at
least two full business days prior to the First Closing Date (or the applicable Option Closing Date, as the case may be) and shall be
made available for inspection on the business day preceding the First Closing Date (or the applicable Option Closing Date, as the case
may be) at a location in New York City as the Representative may designate. Time shall be of the essence, and delivery at the time and
place specified in this Agreement is a further condition to the obligations of the Underwriters.
Section 3. Additional
Covenants. The Company further covenants and agrees with each Underwriter as follows:
(a) Delivery
of Registration Statement, Time of Sale Prospectus and Prospectus. The Company shall furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period
when a prospectus relating to the Offered Shares is required by the Securities Act to be delivered (whether physically or through compliance
with Rule 172 under the Securities Act or any similar rule) in connection with sales of the Offered Shares, as many copies of the
Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably
request.
(b) Representative’s
Review of Proposed Amendments and Supplements. During the period when a prospectus relating to the Offered Shares is required
by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar
rule), the Company (i) will furnish to the Representative for review, a reasonable period of time prior to the proposed time of filing
of any proposed amendment or supplement to the Registration Statement, a copy of each such amendment or supplement and (ii) will
not amend or supplement the Registration Statement without the Representative’s prior written consent. Prior to amending or supplementing
any preliminary prospectus, the Time of Sale Prospectus or the Prospectus, the Company shall furnish to the Representative for review,
a reasonable amount of time prior to the time of filing or use of the proposed amendment or supplement, a copy of each such proposed amendment
or supplement. The Company shall not file or use any such proposed amendment or supplement without the Representative’s prior written
consent. The Company shall file with the Commission within the applicable period specified in Rule 424(b) under the Securities
Act any prospectus required to be filed pursuant to such Rule.
(c) Free
Writing Prospectuses. The Company shall furnish to the Representative for review, a reasonable amount of time prior to the proposed
time of filing or use thereof, a copy of each proposed free writing prospectus or any amendment or supplement thereto prepared by or on
behalf of, used by, or referred to by the Company, and the Company shall not file, use or refer to any proposed free writing prospectus
or any amendment or supplement thereto without the Representative’s prior written consent. The Company shall furnish to each Underwriter,
without charge, as many copies of any free writing prospectus prepared by or on behalf of, used by or referred to by the Company as such
Underwriter may reasonably request. If at any time when a prospectus is required by the Securities Act to be delivered (whether physically
or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with sales of the Offered Shares
(but in any event if at any time through and including the First Closing Date) there occurred or occurs an event or development as a result
of which any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company conflicted or would conflict
with the information contained in the Registration Statement or included or would include an untrue statement of a material fact or omitted
or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing
at such time, not misleading, the Company shall promptly amend or supplement such free writing prospectus to eliminate or correct such
conflict or so that the statements in such free writing prospectus as so amended or supplemented will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
prevailing at such time, not misleading, as the case may be; provided, however, that prior to amending or supplementing any such
free writing prospectus, the Company shall furnish to the Representative for review, a reasonable amount of time prior to the proposed
time of filing or use thereof, a copy of such proposed amended or supplemented free writing prospectus, and the Company shall not file,
use or refer to any such amended or supplemented free writing prospectus without the Representative’s prior written consent.
(d) Filing
of Underwriter Free Writing Prospectuses. The Company shall not take any action that would result in an Underwriter or the Company
being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared
by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder.
(e) Amendments
and Supplements to Time of Sale Prospectus. If the Time of Sale Prospectus is being used to solicit offers to buy the Offered
Shares at a time when the Prospectus is not yet available to prospective purchasers, and any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Time of Sale Prospectus so that the Time of Sale Prospectus does not include
an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances when delivered to a prospective purchaser, not misleading, or if any event shall occur or condition exist as a result
of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company
shall (subject to Section 3(b) and Section 3(c) hereof) promptly prepare, file with the Commission and furnish, at
its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so
that the statements in the Time of Sale Prospectus as so amended or supplemented will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when delivered to
a prospective purchaser, not misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with
the information contained in the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply
with applicable law.
(f) Certain
Notifications and Required Actions. After the date of this Agreement, the Company shall promptly advise the Representative in
writing of: (i) the receipt of any comments of, or requests for additional or supplemental information from, the Commission; (ii) the
time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any preliminary
prospectus, the Time of Sale Prospectus, any free writing prospectus or the Prospectus; (iii) the time and date that any post-effective
amendment to the Registration Statement becomes effective; and (iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment thereto or any amendment or supplement to any preliminary
prospectus, the Time of Sale Prospectus or the Prospectus or of any order preventing or suspending the use of any preliminary prospectus,
the Time of Sale Prospectus, any free writing prospectus or the Prospectus, or of any proceedings to remove, suspend or terminate from
listing or quotation the Shares from any securities exchange upon which they are listed for trading or included or designated for quotation,
or of the threatening or initiation of any proceedings for any of such purposes. If the Commission shall enter any such stop order at
any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment. Additionally, the
Company agrees that it shall comply with all applicable provisions of Rule 424(b), Rule 433 and Rule 430B under the Securities
Act and will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b) or Rule 433 were
received in a timely manner by the Commission.
(g) Amendments
and Supplements to the Prospectus and Other Securities Act Matters. If any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus so that the Prospectus does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus
is delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) to a purchaser,
not misleading, or if in the opinion of the Representative or counsel for the Underwriters it is otherwise necessary to amend or supplement
the Prospectus to comply with applicable law, the Company agrees (subject to Section 3(b) and Section 3(c)) hereof to promptly
prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, amendments or supplements
to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus
is delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) to a purchaser,
not misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law. Neither the Representative’s
consent to, nor delivery of, any such amendment or supplement shall constitute a waiver of any of the Company’s obligations under
Section 3(b) or Section 3(c).
(h) Blue
Sky Compliance. The Company shall cooperate with the Representative and counsel for the Underwriters to qualify or register the
Offered Shares for sale under (or obtain exemptions from the application of) the state securities or blue sky laws of those jurisdictions
designated by the Representative, shall comply with such laws and shall continue such qualifications, registrations and exemptions in
effect so long as required for the distribution of the Offered Shares. The Company shall not be required to qualify as a foreign corporation
or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified.
The Company will advise the Representative promptly of the suspension of the qualification or registration of (or any such exemption relating
to) the Offered Shares for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose,
and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best
efforts to obtain the withdrawal thereof at the earliest possible moment.
(i) Use
of Proceeds. The Company shall apply the net proceeds from the sale of the Offered Shares sold by it in the manner described under
the caption “Use of Proceeds” in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(j) Transfer
Agent. The Company shall engage and maintain, at its expense, a registrar and transfer agent for the Shares.
(k) Earnings
Statement. The Company will make generally available to its security holders and to the Representative as soon as practicable
an earnings statement (which need not be audited) covering a period of at least twelve months beginning with the first fiscal quarter
of the Company commencing after the date of this Agreement that will satisfy the provisions of Section 11(a) of the Securities
Act and the rules and regulations of the Commission thereunder.
(l) Continued
Compliance with Securities Laws. The Company will comply with the Securities Act and the Exchange Act so as to permit the completion
of the distribution of the Offered Shares as contemplated by this Agreement, the Registration Statement, the Time of Sale Prospectus and
the Prospectus. Without limiting the generality of the foregoing, the Company will, during the period when a prospectus relating to the
Offered Shares is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the
Securities Act or any similar rule), file on a timely basis with the Commission and Nasdaq all reports and documents required to be filed
under the Exchange Act.
(m) Listing.
The Company will use its best efforts to list, subject to notice of issuance, the Offered Shares on Nasdaq.
(n) Company
to Provide Copy of the Prospectus in Form That May be Downloaded from the Internet. If requested by the Representative,
the Company shall cause to be prepared and delivered, at its expense, within one business day from the effective date of this Agreement,
to the Representative an “electronic Prospectus” to be used by the Underwriters in connection with the offering and sale of
the Offered Shares. As used herein, the term “electronic Prospectus” means a form of Prospectus, and any amendment
or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory
to the Representative, that may be transmitted electronically by the Representative and the other Underwriters to offerees and purchasers
of the Offered Shares; (ii) it shall disclose the same information as the paper Prospectus, except to the extent that graphic and
image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic
Prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it
shall be in or convertible into a paper format or an electronic format, satisfactory to Jefferies, that will allow investors to store
and have continuously ready access to the Prospectus at any future time, without charge to investors (other than any fee charged for subscription
to the Internet as a whole and for on-line time). The Company hereby confirms that it has included or will include in the Prospectus filed
pursuant to EDGAR or otherwise with the Commission and in the Registration Statement at the time it was declared effective an undertaking
that, upon receipt of a request by an investor or his or her representative, the Company shall transmit or cause to be transmitted promptly,
without charge, a paper copy of the Prospectus.
(o) Agreement
Not to Offer or Sell Additional Shares. During the period commencing on and including the date hereof and continuing through and
including the 90th day following the date of the Prospectus (such period, as extended as described below, being referred to
herein as the “Lock-up Period”), the Company will not, without the prior written consent of Jefferies (which consent
may be withheld in its sole discretion), directly or indirectly: (i) sell, offer to sell, contract to sell or lend any Shares or
Related Securities (as defined below); (ii) effect any short sale, or establish or increase any “put equivalent position”
(as defined in Rule 16a-1(h) under the Exchange Act) or liquidate or decrease any “call equivalent position” (as
defined in Rule 16a-1(b) under the Exchange Act) of any Shares or Related Securities; (iii) pledge, hypothecate or grant
any security interest in any Shares or Related Securities; (iv) in any other way transfer or dispose of any Shares or Related Securities;
(v) enter into any swap, hedge or similar arrangement or agreement that transfers, in whole or in part, the economic risk of ownership
of any Shares or Related Securities, regardless of whether any such transaction is to be settled in securities, in cash or otherwise;
(vi) announce the offering of any Shares or Related Securities (other than as contemplated by this Agreement with respect to the
Offered Shares); (vi) submit or file any registration statement under the Securities Act in respect of any Shares or Related Securities
(other than as contemplated by this Agreement with respect to the Offered Shares); (vii) effect a reverse stock split, recapitalization,
share consolidation, reclassification or similar transaction affecting the outstanding Shares; or (viii) publicly announce the intention
to do any of the foregoing; provided, however, that the Company may (A) effect the transactions contemplated hereby; (B) issue
Shares or options to purchase Shares, or issue Shares upon exercise of options, pursuant to any stock option, stock bonus or other stock
plan or arrangement described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, but only if the holders of
such Shares or options agree in writing with the Underwriters not to sell, offer, dispose of or otherwise transfer any such Shares or
options during such Lock-up Period without the prior written consent of Jefferies (which consent may be withheld in its sole discretion);
(C) issue stock options, restricted stock units or other awards to newly hired employees, including granting inducement grant awards,
as permitted by Nasdaq Stock Market Rule 5635; (D) file any registration statement on Form S-8 or a successor form thereto
in respect of securities offered pursuant to the terms of existing employee benefits or inducement grant award; (E) issue Shares
upon the exchange, conversion or redemption of any of the Company’s 4.0% senior subordinated
convertible notes due November 2025; (F) issuances of Shares pursuant to the exercise
of warrants outstanding on the date hereof as disclosed in the Time of Sale Prospectus; and (G) issue Shares to one or more
counterparties in connection with the consummation any merger, asset acquisition or other business combination transaction or any strategic
partnership, joint venture, collaboration or license of any business, products or technology; provided that, with respect to this
subsection (G), (x) the sum of the aggregate number of Shares so issued during the Lock-up Period shall in the aggregate not exceed
10% of the total outstanding Shares immediately following the completion of this offering and (y) prior to the issuance of such Shares,
each recipient of Shares agree in writing with the Underwriters not to sell, offer, dispose of or otherwise transfer any such Shares or
options during such Lock-up Period without the prior written consent of Jefferies (which consent may be withheld in its sole discretion).
For purposes of the foregoing, “Related Securities” shall mean any options or warrants or other rights to acquire Shares
or any securities exchangeable or exercisable for or convertible into Shares, or to acquire other securities or rights ultimately exchangeable
or exercisable for, or convertible into, Shares.
(p) Future
Reports to the Representative. During the period of five years hereafter, the Company will furnish to the Representative, c/o
Jefferies, at 520 Madison Avenue, New York, New York 10022, Attention: Global Head of Syndicate: (i) as soon as practicable after
the end of each fiscal year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of
such fiscal year and statements of income, stockholders’ equity and cash flows for the year then ended and the opinion thereon of
the Company’s independent public or certified public accountants; (ii) as soon as practicable after the filing thereof, copies
of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other
report filed by the Company with the Commission, FINRA or any securities exchange; and (iii) as soon as available, copies of any
report or communication of the Company furnished or made available generally to holders of its capital stock; provided, however,
that the requirements of this Section 3(p) shall be satisfied to the extent that such reports, statement, communications, financial
statements or other documents are available on EDGAR.
(q) Investment
Limitation. The Company shall not invest or otherwise use the proceeds received by the Company from its sale of the Offered Shares
in such a manner as would require the Company or any of its subsidiaries to register as an investment company under the Investment Company
Act.
(r) No
Stabilization or Manipulation; Compliance with Regulation M. The Company will not take, and will ensure that no affiliate of the
Company will take, directly or indirectly, any action designed to or that might cause or result in stabilization or manipulation of the
price of the Shares or any reference security with respect to the Shares, whether to facilitate the sale or resale of the Offered Shares
or otherwise, and the Company will, and shall cause each of its affiliates to, comply with all applicable provisions of Regulation M.
(s) Enforce
Lock-Up Agreements. During the Lock-up Period, the Company will enforce all agreements between the Company and any of its securityholders
that restrict or prohibit, expressly or in operation, the offer, sale or transfer of Shares or Related Securities or any of the other
actions restricted or prohibited under the terms of the form of Lock-up Agreement. In addition, the Company will direct the transfer agent
to place stop transfer restrictions upon any such securities of the Company that are bound by such “lock-up” agreements for
the duration of the periods contemplated in such agreements, including, without limitation, “lock-up” agreements entered into
by the Company’s officers and directors pursuant to Section 5(h) hereof.
(t) Company
to Provide Interim Financial Statements. Prior to the First Closing Date and each applicable Option Closing Date, the Company
will furnish the Underwriters, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim
financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing
in the Registration Statement and the Prospectus.
Section 4. Covenant
of the Underwriters. Each Underwriter severally and not jointly covenants with the Company not to take any action that would result
in the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus
prepared by or on behalf of such Underwriter that otherwise would not, but for such actions, be required to be filed by the Company under
Rule 433(d).
Section 5. Conditions
of the Obligations of the Underwriters. The respective obligations of the several Underwriters hereunder to purchase and pay for the
Offered Shares as provided herein on the First Closing Date and, with respect to the Optional Shares, each Option Closing Date, shall
be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section 1 hereof as of the
date hereof and as of the First Closing Date as though then made and, with respect to the Optional Shares, as of each Option Closing Date
as though then made, to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following
additional conditions:
(a) Comfort
Letter. On the date hereof, the Representative shall have received from Ernst & Young LLP, independent registered public
accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representative,
containing statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters,
delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited and unaudited
financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus, and each
free writing prospectus, if any.
(b) Compliance
with Registration Requirements; No Stop Order; No Objection from FINRA. For the period from and after the date of this Agreement
and through and including the First Closing Date and, with respect to any Optional Shares purchased after the First Closing Date, each
Option Closing Date:
(i) The
Company shall have filed the Prospectus with the Commission (including the information previously omitted from the Registration Statement
pursuant to Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under
the Securities Act.
(ii) No
stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall
be in effect, and no proceedings for such purpose shall have been instituted or threatened by the Commission.
(iii) If
a filing has been made with FINRA, FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and
arrangements.
(c) No
Material Adverse Change or Ratings Agency Change. For the period from and after the date of this Agreement and through and including
the First Closing Date and, with respect to any Optional Shares purchased after the First Closing Date, each Option Closing Date:
(i) in
the judgment of the Representative there shall not have occurred any Material Adverse Change; and
(ii) there
shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company
or any of its subsidiaries by any “nationally recognized statistical rating organization” as that term is used in Rule 15c3-1(c)(2)(vi)(F) under
the Exchange Act.
(d) Opinion
of Counsel for the Company. On each of the First Closing Date and each Option Closing Date, as applicable, the Representative
shall have received the opinion and negative assurance letter of Goodwin Procter LLP, counsel for the Company, dated as of such date,
in form and substance satisfactory to the Representative.
(e) Opinion
of Counsel for the Underwriters. On each of the First Closing Date and each Option Closing Date, as applicable, the Representative
shall have received the opinion and negative assurance letter of Paul Hastings LLP, counsel for the Underwriters in connection with the
offer and sale of the Offered Shares, in form and substance satisfactory to the Underwriters, dated as of such date.
(f) Officers’
Certificate. On each of the First Closing Date and each Option Closing Date, as applicable, the Representative shall have received
a certificate executed by the Chief Executive Officer or President of the Company and the Chief Financial Officer of the Company, dated
as of such date, to the effect set forth in Section 5(b)(ii) and further to the effect that:
(i) for
the period from and including the date of this Agreement through and including such date, there has not occurred any Material Adverse
Change;
(ii) the
representations, warranties and covenants of the Company set forth in Section 1 of this Agreement are true and correct with the same
force and effect as though expressly made on and as of such date; and
(iii) the
Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder
at or prior to such date.
(g) Bring-down
Comfort Letter. On each of the First Closing Date and each Option Closing Date, as applicable, the Representative shall have received
from Ernst & Young LLP, independent registered public accountants for the Company, a letter dated such date, in form and substance
satisfactory to the Representative, which letter shall: (i) reaffirm the statements made in the letter furnished by them pursuant
to Section 5(a), except that the specified date referred to therein for the carrying out of procedures shall be no more than three
business days prior to the First Closing Date or the applicable Option Closing Date, as the case may be; and (ii) cover certain financial
information contained in the Prospectus.
(h) Lock-Up
Agreements. On or prior to the date hereof, the Company shall have furnished to the Representative an agreement in the form of
Exhibit A hereto from each of the persons listed on Exhibit B hereto, and each such agreement shall be in full
force and effect on each of the First Closing Date and each Option Closing Date.
(i) Rule 462(b) Registration
Statement. In the event that a Rule 462(b) Registration Statement is filed in connection with the offering contemplated
by this Agreement, such Rule 462(b) Registration Statement shall have been filed with the Commission on the date of this Agreement
and shall have become effective automatically upon such filing.
(j) CFO
Certificate. On the date of this Agreement and on the First Closing Date or the applicable Option Closing Date, as the case may
be, the Company shall have furnished to the Representative a certificate, dated the respective dates of delivery thereof and addressed
to the Underwriters, of its chief financial officer with respect to certain financial data contained in the Time of Sale Prospectus and
the Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory
to the Representative.
(k) Additional
Documents. On or before each of the First Closing Date and each Option Closing Date, the Representative and counsel for the Underwriters
shall have received such information, documents and opinions as they may reasonably request for the purposes of enabling them to pass
upon the issuance and sale of the Offered Shares as contemplated herein, or in order to evidence the accuracy of any of the representations
and warranties, or the satisfaction of any of the conditions or agreements, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Offered Shares as contemplated herein and in connection with the other transactions contemplated
by this Agreement shall be satisfactory in form and substance to the Representative and counsel for the Underwriters.
If any condition specified in this Section 5
is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice from Jefferies
to the Company at any time on or prior to the First Closing Date and, with respect to the Optional Shares, at any time on or prior to
the applicable Option Closing Date, which termination shall be without liability on the part of any party to any other party, except that,
Section 6, Section 8 and Section 9 shall at all times be effective and shall survive such termination.
Section 6. Reimbursement
of Underwriters’ Expenses. If this Agreement is terminated by the Representative pursuant to Section 5, Section 10
or Section 11, or if the sale to the Underwriters of the Offered Shares on the First Closing Date is not consummated because of any
refusal, inability or failure on the part of the Company to perform any agreement herein or to comply with any provision hereof, the Company
agrees to reimburse the Representative and the other Underwriters (or such Underwriters as have terminated this Agreement with respect
to themselves), severally, upon demand for all out-of-pocket expenses that shall have been reasonably incurred by the Representative and
the Underwriters in connection with the proposed purchase and the offering and sale of the Offered Shares, including, but not limited
to, fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges.
Section 7. Effectiveness
of this Agreement. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
Section 8. Indemnification.
(a) Indemnification
of the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors, officers,
employees and agents, and each person, if any, who controls any Underwriter within the meaning of the Securities Act or the Exchange Act
against any loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such affiliate, director, officer, employee,
agent or controlling person may become subject, under the Securities Act, the Exchange Act, other federal or state statutory law or regulation,
or the laws or regulations of foreign jurisdictions where Offered Shares have been offered or sold or at common law or otherwise (including
in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission
or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading;
or (ii) any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus, the Time of Sale
Prospectus, any free writing prospectus that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433(d) of
the Securities Act or the Prospectus (or any amendment or supplement to the foregoing), or the omission or alleged omission to state therein
a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading;
or (iii) any act or failure to act or any alleged act or failure to act by any Underwriter in connection with, or relating in any
manner to, the Shares or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon any matter covered by clause (i) or (ii) above; and to reimburse each Underwriter
and each such affiliate, director, officer, employee, agent and controlling person for any and all expenses (including the fees and disbursements
of counsel) as such expenses are incurred by such Underwriter or such affiliate, director, officer, employee, agent or controlling person
in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action;
provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the
extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company by the Representative in
writing expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any such free writing
prospectus, any Marketing Material or the Prospectus (or any amendment or supplement thereto), it being understood and agreed that the
only such information consists of the information described in Section 8(b) below. The indemnity agreement set forth in this
Section 8(a) shall be in addition to any liabilities that the Company may otherwise have.
(b) Indemnification
of the Company, its Directors and Officers. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act, against any loss, claim, damage, liability or expense, as incurred,
to which the Company, or any such director, officer or controlling person may become subject, under the Securities Act, the Exchange Act,
or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of such Underwriter), insofar as such loss, claim, damage, liability or expense (or actions
in respect thereof as contemplated below) arises out of or is based upon (i) any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, or any amendment thereto, or any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any untrue statement
or alleged untrue statement of a material fact included in any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus
that the Company has used, referred to or filed, or is required to file, pursuant to Rule 433 of the Securities Act or the Prospectus
(or any such amendment or supplement) or the omission or alleged omission to state therein a material fact necessary in order to make
the statements, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement,
such preliminary prospectus, the Time of Sale Prospectus, such free writing prospectus or the Prospectus (or any such amendment or supplement),
in reliance upon and in conformity with information relating to such Underwriter furnished to the Company by the Representative in writing
expressly for use therein; and to reimburse the Company, or any such director, officer or controlling person for any and all expenses
(including the fees and disbursements of counsel) as such expenses are incurred by the Company, or any such director, officer or controlling
person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense
or action. The Company hereby acknowledges that the only information that the Representative has furnished to the Company expressly for
use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any free writing prospectus that the Company
has filed, or is required to file, pursuant to Rule 433(d) of the Securities Act or the Prospectus (or any amendment or supplement
to the foregoing) are the concession figures appearing in the fifth paragraph under the caption “Underwriting” and the information
relating to stabilizing transactions, syndicate covering transactions and penalty bids contained in the paragraphs under the caption “Underwriting—Stabilization”
in the Preliminary Prospectus Supplement and the Final Prospectus Supplement. The indemnity agreement set forth in this Section 8(b) shall
be in addition to any liabilities that each Underwriter may otherwise have.
(c) Notifications
and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under
this Section 8, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying
party will not relieve the indemnifying party from any liability which it may have to any indemnified party to the extent the indemnifying
party is not materially prejudiced as a proximate result of such failure and shall not in any event relieve the indemnifying party from
any liability that it may have otherwise than on account of this indemnity agreement. In case any such action is brought against any indemnified
party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled
to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that a conflict
may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that
there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available
to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses
and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from
the indemnifying party to such indemnified party of such indemnifying party’s election to so assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8
for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the fees and expenses of more than one separate counsel (together with local
counsel), representing the indemnified parties who are parties to such action), which counsel (together with any local counsel) for the
indemnified parties shall be selected by Jefferies (in the case of counsel for the indemnified parties referred to in Section 8(a) above)
or by the Company (in the case of counsel for the indemnified parties referred to in Section 8(b) above)) or (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has authorized in writing the employment of counsel for
the indemnified party at the expense of the indemnifying party, in each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying party and shall be paid as they are incurred.
(d) Settlements.
The indemnifying party under this Section 8 shall not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by Section 8(c) hereof, the indemnifying party shall be liable for any settlement
of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit
or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder
by such indemnified party, unless such settlement, compromise or consent includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such action, suit or proceeding and does not include an admission of fault or culpability
or a failure to act by or on behalf of such indemnified party.
Section 9. Contribution.
If the indemnification provided for in Section 8 is for any reason held to be unavailable to or otherwise insufficient to hold harmless
an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party
shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims, damages,
liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by
the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the Offered Shares pursuant to this Agreement
or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the
one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company,
on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Offered Shares pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total proceeds from the offering of the Offered Shares pursuant to this
Agreement (before deducting expenses) received by the Company, and the total underwriting discounts and commissions received by the Underwriters,
in each case as set forth on the front cover page of the Prospectus, bear to the aggregate initial public offering price of the Offered
Shares as set forth on such cover. The relative fault of the Company, on the one hand, and the Underwriters, on the other hand, shall
be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the Underwriters, on
the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement
or omission.
The amount paid or payable by a party as a result
of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set
forth in Section 8(c), any legal or other fees or expenses reasonably incurred by such party in connection with investigating or
defending any action or claim. The provisions set forth in Section 8(c) with respect to notice of commencement of any action
shall apply if a claim for contribution is to be made under this Section 9; provided, however, that no additional notice shall
be required with respect to any action for which notice has been given under Section 8(c) for purposes of indemnification.
The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations
referred to in this Section 9.
Notwithstanding
the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the underwriting discounts
and commissions received by such Underwriter in connection with the Offered Shares underwritten by it and distributed to the public. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute
pursuant to this Section 9 are several, and not joint, in proportion to their respective underwriting commitments as set forth opposite
their respective names on Schedule A. For purposes of this Section 9, each affiliate, director, officer, employee and
agent of an Underwriter and each person, if any, who controls an Underwriter within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the Company within the meaning of the Securities Act and the
Exchange Act shall have the same rights to contribution as the Company.
Section 10. Default
of One or More of the Several Underwriters. If, on the First Closing Date or any Option Closing Date any one or more of the
several Underwriters shall fail or refuse to purchase Offered Shares that it or they have agreed to purchase hereunder on such date, and
the aggregate number of Offered Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does
not exceed 10% of the aggregate number of the Offered Shares to be purchased on such date, the Representative may make arrangements satisfactory
to the Company for the purchase of such Offered Shares by other persons, including any of the Underwriters, but if no such arrangements
are made by such date, the other Underwriters shall be obligated, severally and not jointly, in the proportions that the number of Firm
Shares set forth opposite their respective names on Schedule A bears to the aggregate number of Firm Shares set forth opposite
the names of all such non-defaulting Underwriters, or in such other proportions as may be specified by the Representative with the consent
of the non-defaulting Underwriters, to purchase the Offered Shares which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date. If, on the First Closing Date or any Option Closing Date any one or more of the Underwriters shall
fail or refuse to purchase Offered Shares and the aggregate number of Offered Shares with respect to which such default occurs exceeds
10% of the aggregate number of Offered Shares to be purchased on such date, and arrangements satisfactory to the Representative and the
Company for the purchase of such Offered Shares are not made within 48 hours after such default, this Agreement shall terminate without
liability of any party to any other party except that the provisions of Section 6, Section 8 and Section 9 shall at all
times be effective and shall survive such termination. In any such case either the Representative or the Company shall have the right
to postpone the First Closing Date or the applicable Option Closing Date, as the case may be, but in no event for longer than seven days
in order that the required changes, if any, to the Registration Statement and the Prospectus or any other documents or arrangements may
be effected.
As used in this Agreement, the term “Underwriter”
shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
Section 11. Termination
of this Agreement. Prior to the purchase of the Firm Shares by the Underwriters on the First Closing Date, this Agreement may
be terminated by Jefferies by notice given to the Company if at any time: (i) trading or quotation in any of the Company’s
securities shall have been suspended or limited by the Commission or by Nasdaq, or trading in securities generally on either Nasdaq or
the New York Stock Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on
any of such stock exchanges; (ii) a general banking moratorium shall have been declared by any of federal, New York authorities;
(iii) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity, or
any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial
change in United States’ or international political, financial or economic conditions, as in the judgment of Jefferies is material
and adverse and makes it impracticable to market the Offered Shares in the manner and on the terms described in the Time of Sale Prospectus
or the Prospectus or to enforce contracts for the sale of securities; (iv) in the judgment of Jefferies there shall have occurred
any Material Adverse Change; or (v) the Company shall have sustained a loss by strike, fire, flood, earthquake, accident or other
calamity of such character as in the judgment of Jefferies may interfere materially with the conduct of the business and operations of
the Company regardless of whether or not such loss shall have been insured. Any termination pursuant to this Section 11 shall be
without liability on the part of (a) the Company to any Underwriter, except that the Company shall be obligated to reimburse the
expenses of the Representative and the Underwriters pursuant Section 6 or Section 9 hereof or (b) any Underwriter
to the Company; provided, however, that the provisions of Section 8 and Section 9 shall at all times be effective and
shall survive such termination.
Section 12. No
Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the purchase and sale of the Offered Shares
pursuant to this Agreement, including the determination of the public offering price of the Offered Shares and any related discounts and
commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the
other hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction, each Underwriter
is and has been acting solely as a principal and is not the agent or fiduciary of the Company, or its stockholders, creditors, employees
or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company
with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised
or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering
contemplated hereby except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates
may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the Underwriters
have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has
consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
Section 13. Representations
and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements
of the Company, of its officers and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of its or their partners, officers
or directors or any controlling person, as the case may be, and, anything herein to the contrary notwithstanding, will survive delivery
of and payment for the Offered Shares sold hereunder and any termination of this Agreement.
Section 14. Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties hereto
as follows:
| If
to the Representative: | |
Jefferies LLC |
| | |
520 Madison Avenue |
| | |
New York, New York 10022 |
| | |
Facsimile: (646) 619-4437 |
| | |
Attention: General Counsel |
| | |
|
| with
a copy to: | |
Paul Hastings LLP |
| | |
The MetLife Building |
| | |
200 Park Avenue |
| | |
New York, New York 10166 |
| | |
Facsimile: (212) 319-4090 |
| | |
Attention: Siavosh Salimi and
William Magioncalda |
| | |
|
| If to the
Company: | |
Esperion Therapeutics, Inc. |
| | |
3891 Ranchero Drive, Suite 150 |
| | |
Ann Arbor, Michigan 48108 |
| | |
Attention: Sheldon Koenig |
| | |
|
| with a copy to: | |
Goodwin Procter LLP |
| | |
100 Northern Avenue |
| | |
Boston, Massachusetts 02210 |
| | |
Attention: Mitchell Bloom and
Courtney Hetrick |
Any party hereto may change the address for receipt
of communications by giving written notice to the others.
Section 15. Successors.
This Agreement will inure to the benefit of and be binding upon the parties hereto, including any substitute Underwriters pursuant to
Section 10 hereof, and to the benefit of the affiliates, directors, officers, employees, agents and controlling persons referred
to in Section 8 and Section 9, and in each case their respective successors, and no other person will have any right or obligation
hereunder. The term “successors” shall not include any purchaser of the Offered Shares as such from any of the Underwriters
merely by reason of such purchase.
Section 16. Partial
Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement
is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
Section 17. Recognition
of the U.S. Special Resolution Regimes.
(a) In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
For purposes of this Agreement, (A) “BHC Act Affiliate”
has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k);
(B) “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined
in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in,
and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 382.2(b); (C) “Default Right” has the meaning assigned to that
term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and (D) “U.S.
Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder
and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
Section 18. Governing
Law Provisions. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New
York applicable to agreements made and to be performed in such state. Any legal suit, action or proceeding arising out of or based upon
this Agreement or the transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal courts
of the United States of America located in the Borough of Manhattan in the City of New York or the courts of the State of New York in
each case located in the Borough of Manhattan in the City of New York (collectively, the “Specified Courts”), and each
party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment
of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts in any such
suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above
shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably
and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in
any such court has been brought in an inconvenient forum.
Section 19. General
Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral
and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may
be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature
covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other
applicable law, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered shall be deemed to have been duly
and validly delivered and be valid and effective for all purposes. This Agreement may not be amended or modified unless in writing by
all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the
condition is meant to benefit. The section headings herein are for the convenience of the parties only and shall not affect the construction
or interpretation of this Agreement.
Each of the parties hereto acknowledges that it
is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 8 and the contribution provisions of Section 9, and is fully informed
regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Section 8 and Section 9
hereof fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order
to assure that adequate disclosure has been made in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
each free writing prospectus and the Prospectus (and any amendments and supplements to the foregoing), as contemplated by the Securities
Act and the Exchange Act.
If the foregoing is in accordance with your understanding
of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts
hereof, shall become a binding agreement in accordance with its terms.
| |
Very truly yours, |
| |
|
| |
ESPERION THERAPEUTICS, INC. |
| |
|
| |
By: |
/s/
Sheldon Koenig |
| |
|
Name: Sheldon Koenig |
| |
|
Title: President and Chief Executive
Officer |
The foregoing Underwriting Agreement is hereby
confirmed and accepted by the Representative in New York, New York as of the date first above written.
JEFFERIES
LLC
Acting individually and as Representative
of the several Underwriters named in
the
attached Schedule A.
JEFFERIES
LLC
| By: |
/s/ Matthew Kim |
|
| |
Name: Matthew Kim |
|
| |
Title: Joint US Head of Biopharmaceuticals |
|
Schedule A
| Underwriters | |
Number of
Firm Shares
to be Purchased | |
| Jefferies LLC | |
| 56,700,000 | |
| Total | |
| 56,700,000 | |
Schedule B
Free Writing Prospectuses Included in the
Time of Sale Prospectus
None
Schedule C
Subsidiaries
Esperion UK Limited
Exhibit A
Form of Lock-up Agreement
January ___, 2024
Jefferies
LLC
As Representative of the several Underwriters
c/o Jefferies LLC
520 Madison Avenue
New York, New York 10022
Re: Esperion
Therapeutics, Inc.
Ladies and Gentlemen:
This Lock-Up Agreement (this
“Agreement”) is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”)
between Esperion Therapeutics, Inc., a Delaware corporation (the “Company”), and Jefferies LLC (“Jefferies”),
as representative of the several underwriters (collectively, the “Underwriters”), to be named therein, relating to the proposed
public offering (the “Offering”) of shares of common stock, par value $0.001 per share (the “Common Stock”), of
the Company.
In order to induce you and
the other Underwriters to enter into the Underwriting Agreement, and in light of the benefits that the Offering will confer upon the undersigned
in its capacity as a securityholder and/or an officer, director or employee of the Company, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each Underwriter that, during the period beginning
on and including the earlier of the date hereof and the date of the Underwriting Agreement through and including the date that is the
90th day after the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without
the prior written consent of Jefferies, directly or indirectly, (i) offer, sell, assign, transfer, pledge, contract to sell, or otherwise
dispose of, or announce the intention to otherwise dispose of, any shares of Common Stock whether now owned or hereafter acquired by the
undersigned (including, without limitation, Common Stock which may be deemed to be beneficially owned by the undersigned in accordance
with the rules and regulations promulgated under the Securities Act of 1933, as amended (the “Securities Act”), as the
same may be amended or supplemented from time to time (such shares, the “Beneficially Owned Shares”)) or securities convertible
into or exercisable or exchangeable for Common Stock, (ii) enter into any swap, hedge or similar agreement or arrangement that transfers
in whole or in part, the economic risk of ownership of the Beneficially Owned Shares or securities convertible into or exercisable or
exchangeable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has
or hereafter acquires the power of disposition, (iii) engage in any short selling of the Common Stock or securities convertible into
or exercisable or exchangeable for Common Stock, or (iv) publicly announce any intention to do any of the foregoing.
The restrictions set forth in the immediately
preceding paragraph shall not apply to:
| |
(1) |
if the undersigned is a natural person, any transfers made by the undersigned (a) as a bona fide gift to any member of the immediate family (as defined below) of the undersigned or to a trust the beneficiaries of which are exclusively the undersigned or members of the undersigned’s immediate family, (b) by will or intestate succession upon the death of the undersigned; (c) as a bona fide gift to a charity or educational institution or (d) pursuant to a qualified domestic order or in connection with a divorce settlement, |
| |
(2) |
if the undersigned is a corporation, partnership, limited liability company or other business entity, (a) any transfers to any shareholder, partner or member of, or owner of a similar equity interest in, the undersigned, as the case may be, if, in any such case, such transfer is not for value, or (b) to another corporation, partnership, limited liability company or other business entity so long as the transferee is an affiliate (as defined below) of the undersigned and such transfer is not for value; |
provided,
that in the case of any transfer described in clause (1) or (2) above, it shall be a condition to the transfer that (A) the
transferee executes and delivers to Jefferies, acting on behalf of the Underwriters, not later than one business day prior to such transfer,
a written agreement, in substantially the form of this Agreement and otherwise satisfactory in form and substance to Jefferies, and (B) no
filing under Section 13 or Section 16 of the Exchange Act of 1934, as amended (the “Exchange
Act”), nor any other public filing or disclosure of such transfer by or on behalf of the undersigned reporting a reduction
in the beneficial ownership of Common Stock held by the undersigned shall be required or voluntarily made during the Lock-Up Period; provided,
however, that in the case of any gift transfer or transfer by will or intestate succession pursuant to clause (1) above,
if the undersigned is required to file a report under Section 16(a) of the Exchange Act, reporting a reduction in beneficial
ownership of shares of Common Stock or Beneficially Owned Shares or any securities convertible into or exercisable or exchangeable for
Common Stock or Beneficially Owned Shares during the Lock-Up Period, the undersigned shall include a statement in such report to the effect
that, such transfer is being made as a gift or by will or intestate succession, as applicable.
| |
(3) |
transactions relating to shares of Common Stock or other securities acquired in the Offering; |
| |
(4) |
transfers or dispositions of shares of Common Stock or other securities to the Company in connection with the conversion of any convertible preferred stock into, or the exercise of any option or warrant for, shares of Common Stock; provided that (i) any such shares of Common Stock received by the undersigned shall be subject to the terms of this agreement and (ii) no filing by any party under the Exchange Act, or other public announcement shall be required or shall be made voluntarily during the Restricted Period (other than a filing on a Form 4 that reports such disposition under the transaction code “F”, and such filing shall include a footnote noting the circumstances described in this clause); |
| |
(5) |
the establishment of a trading plan pursuant to Rule 10b5-1 (a “10b5-1 Plan”) under the Exchange Act for the transfer of shares of Common Stock; provided that (i) such plan does not provide for the transfer of common stock during the Lock-up Period, (ii) any required filing under the Exchange Act shall state that no shares shall be sold under such 10b5-1 Plan during the Lock-Up Period and (iii) no voluntary public announcement shall be required or shall otherwise be made by or on behalf of the undersigned or the Company in connection with the establishment of such plan; |
| |
(6) |
sales
of shares of Common Stock upon the vesting of restricted stock units, so long as such sale is effected pursuant to the Company’s
sell to cover policy solely in an amount sufficient to cover withholding taxes due in connection with such restricted stock units; provided,
that any report required to be filed under Section 16(a) of the Exchange Act, shall include a footnote noting the circumstances
described in this clause; or |
| |
(7) |
transfers or dispositions of shares of Common Stock or such other securities pursuant to a bona fide tender offer for shares of the Company’s capital stock, merger, consolidation or other similar transaction made to all holders of the Company’s securities involving a Change of Control (as defined below) of the Company (including without limitation, the entering into of any lock-up, voting or similar agreement pursuant to which the undersigned may agree to transfer, sell, tender or otherwise dispose of shares of Common Stock or other securities in connection with such transaction) that has been approved by the board of directors of the Company; provided that, in the event that such Change of Control transaction is not consummated, this clause (7) shall not be applicable and the undersigned’s shares and other securities shall remain subject to the restrictions contained in this agreement. |
For purposes of this agreement,
“immediate family” shall mean a spouse, child, grandchild or other lineal descendant (including by adoption), father, mother,
brother or sister of the undersigned; and “affiliate” shall have the meaning set forth in Rule 405 under the Securities
Act, and “Change of Control” shall mean the transfer (whether by tender offer, merger,
consolidation or other similar transaction), in one transactions or a series of related transactions, to a person or group of affiliated
persons (other than an Underwriter pursuant to the Offering), of the Company’s voting securities if, after such transfer, such person
or group of affiliated persons would hold at least 50% of the outstanding voting securities of the Company (or the surviving entity),
provided that, for the avoidance of doubt, the Offering shall not constitute a Change of Control.
The undersigned further agrees
that (i) it will not, during the Lock-Up Period, make any demand or request for or exercise any right with respect to the registration
under the Securities Act, of any shares of Common Stock or other Beneficially Owned Shares or any securities convertible into or exercisable
or exchangeable for Common Stock or other Beneficially Owned Shares, and (ii) the Company may, with respect to any Common Stock or
other Beneficially Owned Shares or any securities convertible into or exercisable or exchangeable for Common Stock or other Beneficially
Owned Shares owned or held (of record or beneficially) by the undersigned, cause the transfer agent or other registrar to enter stop transfer
instructions and implement stop transfer procedures with respect to such securities during the Lock-Up Period. In addition, the undersigned
hereby waives, from the date hereof until the expiration of the 90-day period following the date of the Underwriting Agreement, any and
all rights, if any, to request or demand registration pursuant to the Securities Act, of any shares of Common Stock that are registered
in the name of the undersigned or that are Beneficially Owned Shares.
The undersigned hereby represents
and warrants that the undersigned has full power and authority to enter into this Agreement and that this Agreement has been duly authorized
(if the undersigned is not a natural person), executed and delivered by the undersigned and is a valid and binding agreement of the undersigned.
This Agreement and all authority herein conferred are irrevocable and shall survive the death or incapacity of the undersigned (if a natural
person) and shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned.
The undersigned acknowledges
and agrees that the Underwriters have not provided any recommendation or investment advice nor have the Underwriters solicited any action
from the undersigned with respect to the Offering and the undersigned has consulted their own legal, accounting, financial, regulatory
and tax advisors to the extent deemed appropriate. The undersigned further acknowledges and agrees that, although the Underwriters may
be required or choose to provide certain Regulation Best Interest and Form CRS disclosures to you in connection with the Offering,
the Underwriters are not making a recommendation to you to enter into this Lock-Up Agreement or participate in the Offering, and nothing
set forth in such disclosures is intended to suggest that the Underwriters are making such a recommendation.
It
is understood that, if (A) the Company notifies Jefferies that it does not intend to proceed with the Offering, (B) the Underwriting
Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery
of the shares of Common Stock to be sold thereunder, or (C) the Offering shall not have been completed by January 31, 2024,
this Agreement shall immediately be terminated and the undersigned shall be released from all obligations under this Agreement.
This
Lock-Up Agreement may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal
ESIGN Act of 2000, e.g., www.docusign.com or www.echosign.com) or other transmission method, and any counterpart so delivered shall be
deemed to have been duly and validly delivered and be valid and effective for all purposes.
[Remainder of page intentionally left blank.]
The undersigned acknowledges and agrees that whether
or not any public offering of Common Stock actually occurs depends on a number of factors, including market conditions.
| |
Very truly yours, |
| |
|
| |
(Name of Stockholder - Please Print) |
| |
|
| |
(Signature) |
| |
|
| |
(Name of Signatory if Stockholder is an entity - Please Print) |
| |
|
| |
(Title of Signatory if Stockholder is an entity - Please Print) |
| |
|
| |
Address: |
|
Exhibit B
Directors and Officers
Signing Lock-up Agreement
JoAnne Micale Foody, MD, FACC, FAHA
Sheldon Koenig
Ben Halladay
Benjamin Looker
Eric Warren
J. Martin Carrol
Seth Fischer
Alan Fuhrman
Antonio M. Gotto, Jr. M.D., D.Phil.
Stephen Racomboli
Nicole Vitullo
Tracy Woody
Jay P. Shepard
Tracy M. Woody
Exhibit 5.1
January 22, 2024
Esperion Therapeutics, Inc.
3891 Ranchero Drive, Suite 150
Ann Arbor, MI 48108
Re: Securities
Registered under Registration Statement on Form S-3
We
have acted as counsel to you in connection with your filing of a Registration Statement on Form S-3 (File No. 333-264303)
(as amended or supplemented, the “Registration Statement”) filed on April 15, 2022 with the Securities and Exchange
Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”),
relating to the registration of the offer by Esperion Therapeutics, Inc., a Delaware corporation (the “Company”),
of up to $400,000,000 of any combination of securities of the types specified therein. The Registration Statement was declared effective
by the Commission on April 26, 2022. Reference is made to our opinion letter dated April 15, 2022 and included as Exhibit 5.1
to the Registration Statement. We are delivering this supplemental opinion letter in connection with the prospectus supplement (the “Prospectus
Supplement”) filed on January 22, 2024 by the Company with the Commission pursuant to Rule 424 under the Securities
Act. The Prospectus Supplement relates to the offering by the Company of up to 65,205,000 shares of the Company’s common stock,
par value $0.001 per share (the “Shares”), covered by the Registration Statement. The Shares include 8,505,000 shares
of common stock pursuant to the underwriters’ exercise of their option to purchase additional shares of common stock. The Shares
are being sold to the several underwriters named in, and pursuant to, an underwriting agreement among the Company and such underwriters
(the “Underwriting Agreement”).
We
have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinion set forth below.
We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinion
set forth below, on certificates of officers of the Company.
The opinion set forth below is limited to the
Delaware General Corporation Law.
Based on the foregoing, we are of the opinion
that the Shares have been duly authorized and, when delivered and paid for in accordance with the terms of the Underwriting Agreement,
will be validly issued, fully paid and non-assessable.
This opinion letter and the opinion it contains
shall be interpreted in accordance with the Core Opinion Principles as published in 74 Business Lawyer 815 (Summer 2019).
We hereby consent to the inclusion of this opinion
as Exhibit 5.1 to the Registration Statement and to the references to our firm under the caption “Legal Matters” in the
Registration Statement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations thereunder.
Esperion Therapeutics, Inc.
January 22, 2024
Page 2
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Very truly yours, |
| |
|
| |
/s/ Goodwin Procter LLP |
| |
|
| |
GOODWIN PROCTER LLP |
Exhibit 99.1
Esperion Announces Proposed Public Offering of Common Stock
January 18, 2024
ANN ARBOR, Mich., Jan. 18, 2024 (GLOBE NEWSWIRE) -- Esperion
Therapeutics, Inc. (“Esperion”, “we”, “us” or “our”) (Nasdaq: ESPR) announced today
that it has commenced an underwritten public offering of shares of its common stock. In connection with this offering, Esperion expects
to grant the underwriters a 30-day option to purchase up to an additional 15% of the shares of its common stock at the public offering
price, less underwriting discounts and commissions. All shares to be sold in the proposed offering of common stock will be sold by Esperion.
The offering of common stock is subject to market and other conditions
and there can be no assurance as to whether or when the offering may be completed, or as to the actual size or terms of the offering.
Jefferies LLC is acting as sole book-running manager for the offering.
Esperion intends to use the net proceeds from the offering of common
stock, together with its existing cash and cash equivalents, to fund the ongoing commercialization efforts for NEXLETOL (bempedoic acid)
and NEXLIZET (bempedoic acid and ezetimibe), research and clinical development of current or additional pipeline candidates, working
capital, capital expenditures, and general corporate purposes.
A registration statement relating to the offering of common stock
has been filed with the Securities and Exchange Commission (“SEC”) and was declared effective on April 26, 2022. The
offering of common stock will be made only by means of a prospectus supplement and accompanying prospectus. Copies of the preliminary
prospectus supplement and the accompanying prospectus may be obtained, when available, on the SEC’s website at http://www.sec.gov
or by contacting Jefferies LLC, Attention: Equity Syndicate Prospectus Department, 520 Madison Avenue, New York, New York 10022, by telephone
at 877-821-7388, or by email at prospectus_department@jefferies.com.
This press release shall not constitute an offer to sell or a solicitation
of an offer to buy these securities, nor shall there be any offer or sale of these securities in any state or jurisdiction in which such
offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state
or jurisdiction.
Esperion Therapeutics
At Esperion, we discover, develop, and commercialize innovative medicines
to help improve outcomes for patients with or at risk for cardiovascular and cardiometabolic diseases. The status quo is not meeting
the health needs of millions of people with high cholesterol – that is why our team of passionate industry leaders is breaking
through the barriers that prevent patients from reaching their goals. Providers are moving toward reducing LDL-cholesterol levels as
low as possible, as soon as possible; we provide the next steps to help get patients there. Because when it comes to high cholesterol,
getting to goal is not optional. It is our life’s work. For more information, visit esperion.com and esperionscience.com
and follow us on Twitter at twitter.com/EsperionInc.
Special Note Regarding Forward-Looking Statements
This press release contains forward-looking statements that are made
pursuant to the safe harbor provisions of the federal securities laws, including, without limitation, statements related to the terms,
timing and completion of the proposed public offering, the satisfaction of customary closing conditions related to the proposed public
offering and the intended use of proceeds from the proposed public offering. These statements involve risks, uncertainties and other
factors that may cause actual results, levels of activity, performance, or achievements to be materially different from the information
expressed or implied by these forward-looking statements. Although we believe that we have a reasonable basis for each forward-looking
statement contained in this press release, we caution you that these statements are based on a combination of facts and factors currently
known by us and our projections of the future, about which we cannot be certain. We cannot assure you that the forward-looking statements
in this press release will prove to be accurate. Furthermore, if the forward-looking statements prove to be inaccurate, the inaccuracy
may be material. Actual performance and results may differ materially from those projected or suggested in the forward-looking statements
due to various risks and uncertainties, including, among others: fluctuations in Esperion’s stock price, changes in market conditions,
the completion of the public offering on the anticipated terms or at all, and the risks detailed in Esperion’s filings with the
SEC, including in our most recent Annual Report on Form 10-K and in subsequent filings with
the SEC. Any forward-looking statements contained in this press release
speak only as of the date hereof, and Esperion disclaims any obligation or undertaking to update or revise any forward-looking statements
contained in this press release, other than to the extent required by law.
Esperion Contact Information:
Investors:
Alexis Callahan
investorrelations@esperion.com
(406) 539-1762
Media:
Tiffany Aldrich
corporateteam@esperion.com
(616) 443-8438
Exhibit 99.2
Esperion Announces Pricing of $85.1 Million Public Offering of
Common Stock
January 19, 2024
ANN ARBOR, Mich., Jan. 18, 2024 (GLOBE NEWSWIRE) -- Esperion
Therapeutics, Inc. (“Esperion”, “we”, “us” or “our”) (Nasdaq: ESPR) announced today
the pricing of its previously announced underwritten public offering of 56,700,000 shares of its common stock at a public offering price
of $1.50 per share, before underwriting discounts and commissions. All of the shares of common stock are being offered by Esperion. In
addition, Esperion granted the underwriters a 30-day option to purchase up to an additional 8,505,000 shares of its common stock at the
public offering price, less underwriting discounts and commissions. The gross proceeds from the offering, before deducting underwriting
discounts and commissions and other offering expenses payable by Esperion, are expected to be approximately $85.1 million, excluding
any exercise of the underwriters’ option to purchase additional shares. The offering is expected to close on January 23, 2024,
subject to customary closing conditions.
Jefferies LLC is acting as sole book-running manager for the offering.
Esperion intends to use the net proceeds from the offering of common
stock, together with its existing cash and cash equivalents, to fund the ongoing commercialization efforts for NEXLETOL (bempedoic acid)
and NEXLIZET (bempedoic acid and ezetimibe), research and clinical development of current or additional pipeline candidates, working
capital, capital expenditures, and general corporate purposes.
A registration statement relating to the offering of common stock
has been filed with the Securities and Exchange Commission (“SEC”) and was declared effective on April 26, 2022. The
offering of common stock is being made only by means of a prospectus supplement and accompanying prospectus. Copies of the prospectus
supplement and the accompanying prospectus may be obtained, when available, on the SEC’s website at http://www.sec.gov or by contacting
Jefferies LLC, Attention: Equity Syndicate Prospectus Department, 520 Madison Avenue, New York, New York 10022, by telephone at 877-821-7388,
or by email at prospectus_department@jefferies.com.
This press release shall not constitute an offer to sell or a solicitation
of an offer to buy these securities, nor shall there be any offer or sale of these securities in any state or jurisdiction in which such
offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state
or jurisdiction.
Esperion Therapeutics
At Esperion, we discover, develop, and commercialize innovative medicines
to help improve outcomes for patients with or at risk for cardiovascular and cardiometabolic diseases. The status quo is not meeting
the health needs of millions of people with high cholesterol – that is why our team of passionate industry leaders is breaking
through the barriers that prevent patients from reaching their goals. Providers are moving toward reducing LDL-cholesterol levels as
low as possible, as soon as possible; we provide the next steps to help get patients there. Because when it comes to high cholesterol,
getting to goal is not optional. It is our life’s work. For more information, visit esperion.com and esperionscience.com
and follow us on Twitter at twitter.com/EsperionInc.
Special Note Regarding Forward-Looking Statements
This press release contains forward-looking statements that are made
pursuant to the safe harbor provisions of the federal securities laws, including, without limitation, statements related to the terms,
timing and completion of the proposed public offering, the satisfaction of customary closing conditions related to the proposed public
offering and the intended use of proceeds from the proposed public offering. These statements involve risks, uncertainties and other
factors that may cause actual results, levels of activity, performance, or achievements to be materially different from the information
expressed or implied by these forward-looking statements. Although we believe that we have a reasonable basis for each forward-looking
statement contained in this press release, we caution you that these statements are based on a combination of facts and factors currently
known by us and our projections of the future, about which we cannot be certain. We cannot assure you that the forward-looking statements
in this press release will prove to be accurate. Furthermore, if the forward-looking statements prove to be inaccurate, the inaccuracy
may be material. Actual performance and results may differ materially from those projected or suggested in the forward-looking statements
due to various risks and uncertainties, including, among others: fluctuations in Esperion’s stock price, changes in market conditions,
the completion of the public offering on the anticipated terms or at all, and the risks detailed in Esperion’s filings with the
SEC, including in our most recent Annual Report on Form 10-K and in subsequent filings with
the SEC. Any forward-looking statements contained in this press release
speak only as of the date hereof, and Esperion disclaims any obligation or undertaking to update or revise any forward-looking statements
contained in this press release, other than to the extent required by law.
Esperion Contact Information:
Investors:
Alexis Callahan
investorrelations@esperion.com
(406) 539-1762
Media:
Tiffany Aldrich
corporateteam@esperion.com
(616) 443-8438
v3.23.4
Cover
|
Jan. 18, 2024 |
| Cover [Abstract] |
|
| Document Type |
8-K
|
| Amendment Flag |
false
|
| Document Period End Date |
Jan. 18, 2024
|
| Entity File Number |
001-35986
|
| Entity Registrant Name |
Esperion
Therapeutics, Inc.
|
| Entity Central Index Key |
0001434868
|
| Entity Tax Identification Number |
26-1870780
|
| Entity Incorporation, State or Country Code |
DE
|
| Entity Address, Address Line One |
3891
Ranchero Drive
|
| Entity Address, Address Line Two |
Suite 150
|
| Entity Address, City or Town |
Ann
Arbor
|
| Entity Address, State or Province |
MI
|
| Entity Address, Postal Zip Code |
48108
|
| City Area Code |
734
|
| Local Phone Number |
887-3903
|
| Written Communications |
false
|
| Soliciting Material |
false
|
| Pre-commencement Tender Offer |
false
|
| Pre-commencement Issuer Tender Offer |
false
|
| Title of 12(b) Security |
Common Stock, par value $0.001 per share
|
| Trading Symbol |
ESPR
|
| Security Exchange Name |
NASDAQ
|
| Entity Emerging Growth Company |
false
|
| X |
- DefinitionBoolean flag that is true when the XBRL content amends previously-filed or accepted submission.
| Name: |
dei_AmendmentFlag |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
| Name: |
dei_DocumentPeriodEndDate |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:dateItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
| Name: |
dei_DocumentType |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:submissionTypeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
| Name: |
dei_EntityAddressAddressLine1 |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionAddress Line 2 such as Street or Suite number
| Name: |
dei_EntityAddressAddressLine2 |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- Definition
+ References
+ Details
| Name: |
dei_EntityAddressCityOrTown |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCode for the postal or zip code
| Name: |
dei_EntityAddressPostalZipCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the state or province.
| Name: |
dei_EntityAddressStateOrProvince |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:stateOrProvinceItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityCentralIndexKey |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:centralIndexKeyItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionIndicate if registrant meets the emerging growth company criteria. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityEmergingGrowthCompany |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
| Name: |
dei_EntityFileNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:fileNumberItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
| Name: |
dei_EntityIncorporationStateCountryCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarStateCountryItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityRegistrantName |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityTaxIdentificationNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:employerIdItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionLocal phone number for entity.
| Name: |
dei_LocalPhoneNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
| Name: |
dei_PreCommencementIssuerTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
| Name: |
dei_PreCommencementTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTitle of a 12(b) registered security. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
| Name: |
dei_Security12bTitle |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:securityTitleItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the Exchange on which a security is registered. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
| Name: |
dei_SecurityExchangeName |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarExchangeCodeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Section 14a
-Number 240
-Subsection 12
| Name: |
dei_SolicitingMaterial |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
| Name: |
dei_TradingSymbol |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:tradingSymbolItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
| Name: |
dei_WrittenCommunications |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
Esperion Therapeutics (NASDAQ:ESPR)
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