Full Press Release Details
UNDERWRITING AGREEMENT
JOSEPH GUNNAR & CO., LLC
A UNIT OF H.C. WAINWRIGHT & CO., LLC
as Representatives of the Several Underwriters
UNDERWRITING AGREEMENT
Joseph Gunnar & Co., LLC
30 Broad Street, 11th Floor
Rodman & Renshaw, a unit of H.C. Wainwright & Co., LLC
430 Park Avenue, 4th Floor
New York, New York 10022
As Representatives of the several Underwriters named on Schedule
Ladies and Gentlemen:
The undersigned, Immuron
Limited, a corporation formed under the laws of Australia (collectively with its subsidiaries and affiliates, including, without
limitation, all entities disclosed or described in the Registration Statement (as hereinafter defined) as being subsidiaries or
affiliates of Immuron Limited, the "Company"), hereby confirms its agreement (this "Agreement")
with Joseph Gunnar & Co., LLC and Rodman & Renshaw, a unit of H.C. Wainwright & Co., LLC (hereinafter referred to as
"you" (including their correlatives) or the "Representatives") and with the other underwriters named
on Schedule 1 hereto for which the Representatives are acting as Representatives (the Representatives and such other underwriters
being collectively called the "Underwriters" or, individually, an "Underwriter") as follows:
and Purchase of Firm Securities.
the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to the several Underwriters, an aggregate of 610,000 ordinary shares, no par value per share (the
"Ordinary Shares") of the Company (the "Firm Shares") in the form of American Depositary Shares ("ADSs"),
with each ADS representing 40 Ordinary Shares, together with 610,000 warrants to purchase 610,000 ADSs at an exercise price equal
to $10.00 per ADS ("Warrants"). Each ADS shall be sold together with one Warrant to purchase one additional
ADS to be issued pursuant to a Warrant Agent Agreement to be dated as of the Closing Date (the "Warrant Agent Agreement")
between the Company and The Bank of New York Mellon, as warrant agent (the "Warrant Agent"). Such 610,000 Warrants
are hereinafter called the "Firm Warrants," and, together with the Firm Shares, the "Firm Securities."
Each Firm Warrant shall be exercisable for a period of five (5) years at an exercise price of $10.00 (the "Firm Warrant Exercise
Price"), subject to adjustment as provided in the agreement evidencing the Firm Warrants. The ADSs are to be issued pursuant
to an amended and restated deposit agreement (the "Deposit Agreement"), dated as of June 8, 2017 among the Company,
The Bank of New York Mellon, as depositary (the "Depositary"), and holders from time to time of the American Depositary
Receipts ("ADRs") issued by the Depositary and evidencing the ADSs. The Ordinary Shares represented by the ADSs are
referred to herein as the "Underlying Shares."
Underwriters, severally and not jointly, agree to purchase from the Company the number of Firm Securities set forth opposite their
respective names on Schedule 1 attached hereto and made a part hereof at a purchase price of $9.30 per ADS and Warrant (93%
of the per Firm Securities offering price). The Firm Securities are to be offered initially to the public at the offering price
set forth on the cover page of the Prospectus (as defined in Section 2.1.1 hereof).
Securities Payment and Delivery.
and payment for the Firm Securities shall be made at 10:00 a.m., Eastern time, on the third (3rd) Business Day following
the effective date (the "Effective Date") of the Registration Statement (as defined in Section 2.1.1 below) (or the
fourth (4th) Business Day following the Effective Date if the Registration Statement is declared effective after 4:01
p.m., Eastern time) or at such earlier time as shall be agreed upon by the Representatives and the Company, at the offices of Loeb
& Loeb LLP, 345 Park Avenue, New York, NY 10154 ("Representatives Counsel"), or at such other place (or remotely
by facsimile or other electronic transmission) as shall be agreed upon by the Representatives and the Company. The hour and date
of delivery and payment for the Firm Securities is called the "Closing Date."
for the Firm Securities shall be made on the Closing Date by wire transfer in Federal (same day) funds, payable to the order of
Marcum LLP in respect of $85,000 representing accrued fees and the remainder to the Company upon delivery of the certificates (in
form and substance satisfactory to the Underwriters) representing the Firm Shares and Firm Warrants (or through the facilities
of the Depository Trust Company ("DTC")) for the account of the Underwriters. The Firm Securities shall be registered
in such name or names and in such authorized denominations as the Representatives may request in writing at least two (2) full
Business Days prior to the Closing Date. The Company shall not be obligated to sell or deliver the Firm Securities except upon
tender of payment by the Representatives for all of the Firm Securities. The term "Business Day" means any day other
than a Saturday, a Sunday or a legal holiday or a day on which banking institutions are authorized or obligated by law to close
in New York, New York.
Option Securities. For the purposes of covering any over-allotments in connection with
the distribution and sale of the Firm Securities, the Company hereby grants to the Underwriters an option (the
"Over-allotment Option") in the form of ADSs to purchase up to (a) 91,500 additional Ordinary Shares, (the Option
Shares") at a purchase price of $9.2907 per one Option Share and/or (b) up to 91,500 additional warrants (the
"Option Warrants" and collectively with the Option Shares, the "Option Securities") at a price of
$0.0093 per Option Warrant (the "Warrants Purchase Price"), which may be purchased in any combination of Option
Shares and/or Option Warrants. The net proceeds of such additional Option Securities will be deposited with the
Company's account. The Firm Securities and the Option Securities, each in the form of ADSs, are hereinafter referred to
together as the "Public Securities." The offering and sale of the Public Securities is hereinafter
referred to as the "Offering."
of Option. The Over-allotment Option granted pursuant to Section 1.2.1 hereof may be exercised by the Representatives as to
all (at any time) or any part (from time to time) of the Option Shares within 45 days after the Effective Date. The Underwriters
shall not be under any obligation to purchase any Option Securities prior to the exercise of the Over-allotment Option. The Over-allotment
Option granted hereby may be exercised by the giving of oral notice to the Company from the Representatives, which must be confirmed
in writing by overnight mail or facsimile or other electronic transmission setting forth the number of Option Shares and/or Option
Warrants to be purchased and the date and time for delivery of and payment for the Option Securities (the "Option Closing
Date"), which shall not be later than two (2) full Business Days after the date of the notice or such other time as shall
be agreed upon by the Company and the Representatives, at the offices of Representatives Counsel or at such other place (including
remotely by facsimile or other electronic transmission) as shall be agreed upon by the Company and the Representatives. If such
delivery and payment for the Option Securities does not occur on the Closing Date, the Option Closing Date will be as set forth
in the notice. Upon exercise of the Over-allotment Option with respect to all or any portion of the Option Securities, subject
to the terms and conditions set forth herein, (i) the Company shall become obligated to sell to the Underwriters the number of
Option Shares and/or Option Warrants specified in such notice and (ii) each of the Underwriters, acting severally and not jointly,
shall purchase that portion of the total number of Option Shares and/or Option Warrants then being purchased as set forth in Schedule
1 opposite the name of such Underwriter.
and Delivery. Payment for the Option Securities shall be made on the Option Closing Date by wire transfer in Federal (same
day) funds, payable to the order of the Company upon delivery to you of certificates (in form and substance satisfactory to the
Underwriters) representing the Option Securities (or through the facilities of DTC) for the account of the Underwriters. The Option
Securities shall be registered in such name or names and in such authorized denominations as the Representatives may request in
writing at least one (1) full Business Day prior to the Option Closing Date. The Company shall not be obligated to sell or deliver
the Option Shares and/or Option Warrants except upon tender of payment by the Representatives for the applicable Option Shares
and/or Option Warrants.
1.3 Representatives'
Warrants. The Company hereby agrees to issue and sell to the Representatives (and/or their designees) on the Closing
Date an option ("Representatives' Warrant") for the purchase of an aggregate of 30,500 ADSs, representing 5%
of the ADS (excluding the Option Shares), for an aggregate purchase price of $100.00. The Representatives' Warrant agreement,
in the form attached hereto as Exhibit A (the "Representatives' Warrant Agreement"), shall be exercisable,
in whole or in part, commencing on a date which is one (1) year after the Effective Date and expiring on the five-year anniversary
of the Effective Date at an initial exercise price per ADS of $12.50, which is equal to 125% of the initial public offering price
of the Firm Shares. The Representatives' Warrant Agreement and the ADSs issuable upon exercise thereof are hereinafter referred
to together as the "Representatives' Securities." The Representatives understands and agrees that there are significant
restrictions pursuant to FINRA Rule 5110 against transferring the Representatives' Warrant Agreement and the underlying ADSs
during the one hundred eighty (180) days after the Effective Date and by its acceptance thereof shall agree that it will not sell,
transfer, assign, pledge or hypothecate the Representatives' Warrant Agreement, or any portion thereof, or be the subject