Exhibit 10.1


 





FORM OF LEAK-OUT AGREEMENT


 


August 14, 2019


 


This agreement (the
“Leak-Out Agreement”) is being delivered to you in connection with an understanding by and between DelMar Pharmaceuticals,
Inc., a Nevada corporation (the “Company”), and the person or persons named on the signature pages hereto (collectively,
the “Holder”).


Reference is hereby
made to (a) the Underwriting Agreement, dated August 14, 2019, by and among the Company, Maxim Group LLC and Dawson James Securities,
Inc. (the “Representatives”), as representatives of the several underwriters, in connection with the follow-on
underwritten public offering (the “Offering”) of the Company (the “UA”) pursuant to which
the Holder and certain other purchasers acquired (i) shares of Common Stock of the Company (“Shares”), (ii)
pre-funded warrants of the Company to purchase Shares (the “Pre-Funded Warrants”), and (iii) warrants of the
Company to purchase Shares, (the “Firm Common Warrants,” and together with the Shares and Pre-Funded Warrants,
the “Securities”) and (b) the registration statement on Form S-1 (File No. 333-232931) (“Registration
Statement”). Capitalized terms not defined herein shall have the meaning as set forth in the UA, unless otherwise set
forth herein.


The Holder agrees
solely with the Company that starting at the time of the final pricing of the Offering (the “Effective Date”)
and ending at 4:00 pm (New York City time) on September 24, 2019 (such period, the “Restricted Period”), neither
the Holder, nor any Affiliate of such Holder which (x) had or has knowledge of the transactions contemplated by the UA, (y) has
or shares discretion relating to such Holder’s investments or trading or information concerning such Holder’s investments,
including in respect of the Securities, or (z) is subject to such Holder’s review or input concerning such Affiliate’s
investments or trading (together, the “Holder’s Trading Affiliates”), collectively, shall sell, dispose
or otherwise transfer, directly or indirectly, (including, without limitation, any sales, short sales, swaps or any derivative
transactions that would be equivalent to any sales or short positions) on any Trading Day during the Restricted Period (any such
date, a “Date of Determination”), shares of Common Stock of the Company, or shares of Common Stock underlying
any Common Stock Equivalents (as defined in the Pre-Funded Warrants), held by the Holder on the date hereof, as well as the Shares
and the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants and Firm Common Warrants (collectively, the “Restricted
Securities”), in an amount representing more than [ ]%[1] of the composite trading volume of Common Stock
as reported by Bloomberg, LP for the applicable Date of Determination (“Leak-Out Percentage”); provided, that
the foregoing restriction shall not apply to (a) any sales of the Firm Common Warrants or (b) any actual “long” (as
defined in Regulation SHO of the Securities Exchange Act of 1934, as amended) sales of Common Stock by the Holder or any of the
Holder’s Trading Affiliates at a price per share greater than $2.25 (in each case, as adjusted for stock splits, stock dividends,
stock combinations, recapitalizations or other similar events occurring after the date hereof).


 








[1]
Pro rata portion of 35% among investors executing leak-out agreements, based on subscription amount.






 



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 Notwithstanding
anything herein to the contrary, during the Restricted Period, the Holder may, directly or indirectly, sell or transfer all, or
any part, of any Restricted Securities to any Person (an “Assignee”) in a transaction which does not need to
be reported on the consolidated tape on the Trading Market (as defined in the Pre-Funded Warrant), without complying with (or
otherwise limited by) the restrictions set forth in this Leak-Out Agreement; provided, that as a condition to any such sale or
transfer an authorized signatory of the Company and such Assignee duly execute and deliver a leak-out agreement in the form of
this Leak-Out Agreement (an “Assignee Agreement”, and each such transfer a “Permitted Transfer”)
and, subsequent to a Permitted Transfer, sales of the Holder and the Holder’s Trading Affiliates and all Assignees (other
than any such sales that constitute Permitted Transfers) shall be aggregated for all purposes of this Leak-Out Agreement and all
Assignee Agreements.


Any notices, consents,
waivers or other communications required or permitted to be given under the terms of this Leak-Out Agreement must be in writing
and shall be given in accordance with the terms of the UA; provided that with respect to any notices, consents, waivers or other
communications to be made by the Company to the Holder, such notice, consent, waiver or other communication shall be delivered
to the Holder at the facsimile number or e-mail address provided on the signature page hereto.


This Leak-Out Agreement
constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations,
letters and understandings relating to the subject matter hereof and are fully binding on the parties hereto.


This Leak-Out Agreement
may be executed simultaneously in any number of counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument. This Leak-Out Agreement may be executed and accepted by facsimile or
PDF signature and any such signature shall be of the same force and effect as an original signature.


The terms of this
Leak-Out Agreement shall be binding upon and shall inure to the benefit of each of the parties hereto and their respective successors
and assigns.


This Leak-Out Agreement
may not be amended or modified except in writing signed by each of the parties hereto.


All questions concerning
the construction, validity, enforcement and interpretation of this Leak-Out Agreement shall be governed by Sections 7.7 and 7.13
of the UA.


Each party hereto
acknowledges that, in view of the uniqueness of the transactions contemplated by this Leak-Out Agreement, the other party or parties
hereto may not have an adequate remedy at law for money damages in the event that this Leak-Out Agreement has not been performed
in accordance with its terms, and therefore agrees that such other party or parties shall be entitled to seek specific enforcement
of the terms hereof in addition to any other remedy it may seek, at law or in equity.






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 Neither this
Leak-Out Agreement nor the transactions contemplated herby are material to the Company and no material, non-public information
has been provided to the Holder by the Company or any of its Subsidiaries or any of their respective officers, directors, employees
or agents in connection with the transactions contemplated hereby. As of the date hereof, the Company acknowledges and agrees
that any and all confidentiality or similar obligations under any agreement, if any, whether written or oral, between the Company,
any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and
the Holder or any of its affiliates, on the other hand, with respect to this Leak-Out Agreement and the transactions contemplated
hereby shall terminate.


The Holder acknowledges
that it is not a party to the UA and Representatives have acted as representatives of the several underwriters and all of the purchasers
in the Offering. The obligations of the Holder under this Leak-Out Agreement are several and not joint with the obligations of
any other holder of any of the Securities issued under the UA (each, an “Other Holder”) or any other holder
of any of the Securities issued under the Registration Statement that is not a signatory to the UA (each, a “Prospectus
Purchaser Other Holder”) under any other agreement, and the Holder shall not be responsible in any way for the performance
of the obligations of any Other Holder or any Prospectus Purchaser Other Holder under any such other agreement. Nothing contained
herein or in this Leak-Out Agreement, and no action taken by the Holder pursuant hereto, shall be deemed to constitute the Holder
and Other Holders or any Prospectus Purchaser Other Holder as a partnership, an association, a joint venture or any other kind
of entity, or create a presumption that the Holder and the Other Holders or any Prospectus Purchaser Other Holder are in any way
acting in concert or as a group with respect to such obligations or the transactions contemplated by this Leak-Out Agreement and,
to the knowledge of the Company, the Holder and the Other Holders or any Prospectus Purchaser Other Holder are not acting in concert
or as a group with respect to such obligations or the transactions contemplated by this Leak-Out Agreement or any other agreement.
The Holder confirms that the Holder has independently participated in the negotiation of the transactions contemplated hereby with
the advice of its own counsel and advisors, and the Company has no knowledge to the contrary. The Holder shall be entitled to independently
protect and enforce its rights, including, without limitation, the rights arising out of this Leak-Out Agreement, and it shall
not be necessary for any Other Holder or any Prospectus Purchaser Other Holder to be joined as an additional party in any proceeding
for such purpose.


The Company hereby
represents and warrants as of the date hereof and covenants and agrees from and after the date hereof that none of the terms offered
to any Other Holder or any Prospectus Purchaser Other Holder with respect to any restrictions on the sale of Securities substantially
in the form of this Leak-Out Agreement (or any amendment, modification, waiver or release thereof) (each a “Settlement
Document”), is or will be more favorable to such Other Holder than those of the Holder and this Leak-Out Agreement, and
the Company agrees that upon becoming aware of any breach of any Settlement Document, the Company shall use commercially reasonable
efforts to enforce the terms of such Settlement Document. If, and whenever on or after the date hereof, the Company enters into
a Settlement Document, then (i) the Company shall provide notice thereof to the Holder promptly following the occurrence thereof
and (ii) the terms and conditions of this Leak-Out Agreement shall be, without any further action by the Holder or the Company,
automatically amended and modified in an economically and legally equivalent manner such that the Holder shall receive the benefit
of the more favorable terms and/or conditions (as the case may be) set forth in such Settlement Document, provided that upon written
notice to the Company at any time the Holder may elect not to accept the benefit of any such amended or modified term or condition,
in which event the term or condition contained in this Leak-Out Agreement shall apply to the Holder as it was in effect immediately
prior to such amendment or modification as if such amendment or modification never occurred with respect to the Holder. The provisions
of this paragraph shall apply similarly and equally to each Settlement Document.


 


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The parties hereto have executed this Leak-Out Agreement
as of the date first set forth above.


Sincerely,


DELMAR PHARMACEUTICALS, INC.


 


 


By: _____________________


Name:


Title:


Agreed to and Accepted:


“HOLDER”


 


__________________ 


 


By: ____________________


Name:


Title:


Fax Number:


Email Address:


 


 


Acknowledged:


 


MAXIM GROUP LLC

By:


By:____________________


Name:


Title:


 


DAWSON JAMES SECURITIES, INC.

By:


By:____________________


Name:


Title:


 


 






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