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): March 31, 2023
Marinus Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 001-36576 | 20-0198082 |
(State or other jurisdiction of incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
|
5 Radnor Corporate Center, Suite 500 100 Matsonford Rd, Radnor, PA |
19087 |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (484) 801-4670
__________________________________________________________________
(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 | MRNS | Nasdaq Global Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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.
As previously reported, Marinus Pharmaceuticals, Inc. (the “Company”) is a party to that certain Equity Distribution Agreement, dated July 9, 2020 (the “Original Agreement”), between the Company and JMP Securities LLC (the “Agent”). Under the Original Agreement, the Company from time to time may offer and sell shares of its common stock, par value $0.001 per share (the “Common Stock”), having a maximum aggregate offering price of up to $60,000,000 (the “Original Shares”) through the Agent, acting as agent and/or principal. The terms of such offering of Original Shares are contained in a prospectus supplement, dated July 27, 2020, under a Registration Statement on Form S-3 (File No. 333-239780) that was declared effective by the Securities and Exchange Commission (the “SEC”) on July 27, 2020 (the “2020 Registration Statement”) and which expires on July 27, 2023. As of the date hereof, all of the Original Shares remain available to be sold from time to time pursuant to the Original Agreement.
On March 31, 2023, the Company and the Agent entered into Amendment No. 1 (the “Amendment”) to the Original Agreement (as amended, the “Amended Agreement”). Pursuant to the Amended Agreement, the Company from time to time may offer and sell shares of its Common Stock without a maximum aggregate offering price through the Agent, acting as agent and/or principal. The Amendment was entered into in connection with the Company’s filing of a Registration Statement on Form S-3 (File No. 333-271041) with the SEC (the “2023 Registration Statement”), which includes a prospectus supplement covering the offering, issuance and sale by the Company of up to $75,000,000 of shares of Common Stock (the “New Shares”) that may be issued and sold under the Amended Agreement. The New Shares will be offered, issued and sold pursuant to the 2023 Registration Statement once it is declared effective by the SEC. The Original Shares may continue to be issued, offered and sold pursuant to the 2020 Registration Statement until the 2023 Registration Statement is declared effective by the SEC, at which time no shares of Common Stock may be offered, issued or sold under the 2020 Registration Statement.
This description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the Amendment, which is attached hereto as Exhibit 10.1 and incorporated by reference herein.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any shares of Common Stock nor shall there be any sale of shares of Common Stock in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
Item 8.01. Other Events.
In July 2022, the U.S. Patent and Trademark Office (the “USPTO”) issued a patent to Ovid Therapeutics, Inc. (“Ovid”) with claims that encompass the Company’s product candidate for the treatment of Status Epilepticus (“SE”). On March 15, 2023, the Company filed a petition seeking post-grant review (“PGR”) of Ovid’s U.S. Patent No. 11,395,817 with the United States Patent and Trademark Office Patent Trial and Appeal Board (the “PTAB”). The Company’s petition for PGR argues that the claims of U.S. Patent No. 11,395,817 are unpatentable on multiple grounds as lacking novelty under 35 USC § 102 and being obvious under 35 USC § 103 and, if not invalid under § 102 or § 103, as lacking enablement under 35 USC § 112. Ovid may file a preliminary response to the Company’s petition no later than June 20, 2023, the PTAB will then have up to three months to decide whether to grant the Company’s petition and institute the PGR. In September 2021, the USPTO granted the Company a patent on a method of treating SE, including dosing regimens. This issued patent expires in 2040. This patent is a member of a patent family the Company owns that includes pending patent applications that claim certain therapeutic regimens for the treatment of SE, including Refractory Status Epilepticus, using intravenous ganaxolone.
Item 9.01. Financial Statements and Exhibits.
| (d) | Exhibits |
|
Exhibit |
Description | |
| 10.1 | Amendment No. 1 to the Equity Distribution Agreement, dated as of March 31, 2023, by and between Marinus Pharmaceuticals, Inc. and JMP Securities LLC. | |
| 104 | The cover page from this Current Report on Form 8-K, formatted in Inline XBRL. |
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.
| MARINUS PHARMACEUTICALS, INC. | |
| Date: March 31, 2023 | /s/ Steven Pfanstiel |
| Steven Pfanstiel | |
| Chief Operating Officer, Chief Financial Officer and Treasurer |
Exhibit 10.1
AMENDMENT NO. 1 TO THE EQUITY DISTRIBUTION AGREEMENT
March 31, 2023
JMP Securities LLC
600 Montgomery Street, Suite 1100
San Francisco, California 94111
Ladies and Gentlemen:
This Amendment No. 1 to the Equity Distribution Agreement (this “Amendment”) is entered into as of the date first written above by Marinus Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and JMP Securities LLC (“Agent”), that are parties to that certain Equity Distribution Agreement dated July 9, 2020 (the “Original Agreement”) and that certain side letter agreement dated July 9, 2020 (the “Side Letter”). All capitalized terms not defined herein shall have the meanings ascribed to them in the Original Agreement. The parties, intending to be legally bound, hereby amend the Original Agreement as follows:
1. All references to “$60,000,000” in the Original Agreement are hereby deleted in their entirety. In addition, the first sentence of Section 1 “Description of Securities” in the Original Agreement is hereby deleted in its entirety and replaced with the following:
“The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Placement Agent, acting as agent and/or principal, shares (the “Securities”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), under one or more registration statements on Form S-3 filed with the Commission.”
2. The Company agrees to pay or cause to be paid all expenses of the Agent, including the fees and expenses of the counsel to the Agent, payable within 30 days of the execution of this Amendment, in an amount not to exceed $30,000.
3. The Company represents and warrants to, and agrees with the Agent that this Amendment has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company, enforceable in accordance with its terms, except as rights to indemnification hereunder may be limited by applicable law and except as the enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
4. This Amendment, together with the Original Agreement and the Side Letter (including all schedules and exhibits attached hereto and thereto and Placement Notices issued pursuant hereto and thereto), constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Amendment nor any term hereof may be amended except pursuant to a written instrument executed by the Company and the Agent. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that it is valid, legal and enforceable, and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision was not contained herein, but only to the extent that giving effect to such provision and the remainder of the terms and provisions hereof shall be in accordance with the intent of the parties as reflected in this Amendment. All references in the Original Agreement to the “Agreement” shall mean the Original Agreement (together with the Side Letter) as amended by this Amendment; provided, however, that all references to “date of this Agreement” in the Original Agreement shall continue to refer to the date of the Original Agreement.
5. This Amendment 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 Amendment or the transactions contemplated hereby 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, 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. The provisions of this paragraph shall survive any termination of this Amendment.
6. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed amendment by one party to the other may be made by facsimile transmission or electronic transmission (e.g., PDF).
[Remainder of Page Intentionally Blank]
If the foregoing correctly sets forth the understanding between the Company and the Agent, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding amendment to the Original Agreement (together with the Side Letter) between the Company and the Agent.
| Very truly yours, | ||
| MARINUS PHARMACEUTICALS, INC. | ||
| By: | /s/ Steven Pfanstiel | |
| Name: | Steven Pfanstiel | |
| Title: | Chief Financial Officer and Chief Operations Officer |
| CONFIRMED AND ACCEPTED, | ||
| as of the date first above written: | ||
| JMP SECURITIES LLC | ||
| By: | /s/ David Kellman | |
| Name: | David Kellman | |
| Title: | Managing Director, Head of Healthcare Investment Banking |