Exhibit
10.2


 





 


April
27, 2017


 


STRICTLY
CONFIDENTIAL


 


CytRx
Corporation


11726
San Vicente Blvd., Suite 650


Los
Angeles, CA 90049


Attn:
John Y. Caloz, Chief Financial Officer


 


Dear
Mr. Caloz:


 


This
letter agreement (this “Agreement") constitutes the agreement between CytRx Corporation (the “Company")
and H.C. Wainwright & Co., LLC (“Wainwright”). that Wainwright shall serve as the exclusive agent, advisor
or underwriter in any offering (each, an “Offering”) of securities of the Company (“Securities”)
during the Term (as defined below) of this Agreement. The terms of each Offering and the Securities issued in connection therewith
shall be mutually agreed upon by the Company and Wainwright and nothing herein implies that Wainwright would have the power or
authority to bind the Company and nothing herein implies that the Company shall have an obligation to issue any Securities. It
is understood that Wainwright’s assistance in an Offering will be subject to the satisfactory completion of such investigation
and inquiry into the affairs of the Company as Wainwright deems appropriate under the circumstances and to the receipt of all internal
approvals of Wainwright in connection with the transaction. The Company expressly acknowledges and agrees that Wainwright’s
involvement in an Offering is strictly on a reasonable best efforts basis and that the consummation of an Offering will be subject
to, among other things, market conditions. The execution of this Agreement does not constitute a commitment by Wainwright to purchase
the Securities and does not ensure a successful Offering of the Securities or the success of Wainwright with respect to securing
any other financing on behalf of the Company. Wainwright may retain other brokers, dealers, agents or underwriters on its behalf
in connection with an Offering.


 


A.
Compensation: Reimbursement. At the closing of each Offering (each, a “Closing”), the Company shall compensate
Wainwright as follows:


 


1.          Cash
Fee. The Company shall pay to Wainwright a cash fee, or as to an underwritten Offering an underwriter discount, equal to 6.0%
of the aggregate gross proceeds raised in such Offering. The cash fee, or underwriter discount, shall be reduced to 3% of the aggregate
gross proceeds raised from the investors who are listed on Exhibit A hereto.


 


2.          Expense
Allowance. Out of the proceeds of each Closing, the Company also agrees to pay Wainwright (a) $25,000 for non-accountable expenses
of Wainwright in connection with marketing the transaction (i.e., road show expenses, background checks, tombstones, etc.) and
(b) up to $100,000 for legal fees and expenses of Wainwright (provided, however, that such reimbursement amount in
no way limits or impairs the indemnification and contribution provisions of this Agreement).


 


3.          Tail
Fee. Wainwright shall be entitled to compensation under clauses (1) and (2) hereunder, calculated in the manner set forth therein,
with respect to any public or private offering or other financing or capital-raising transaction of any kind (“Tail Financing”)
to the extent that such financing or capital is provided to the Company by investors whom Wainwright had contacted during the Term,
or introduced, directly or indirectly, to the Company during Term, if such Tail Financing is consummated at any time within the
3-month period following the expiration or termination of this Agreement.


 


	430 Park Avenue | New York, New York 10022 | 212.356.0500 | www.hcwco.com
	Member: FINRA/SIPC


 




     


     


    

 


4.
         Right
of Participation. If within the 12-month period following consummation of such Offering, the Company or any of its subsidiaries
(a) decides to finance or refinance any indebtedness using a manager or agent, Wainwright (or any affiliate designated by Wainwright)
shall have the right to act as joint lead book runner, joint lead manager, joint lead placement agent or joint lead agent with
respect to such financing or refinancing, provided that Wainwright (or any affiliate designated by Wainwright) shall be entitled
to at least 30% of the economics of such financing or refinancing, or (b) decides to raise funds by means of a public offering
or a private placement of equity or debt securities using an underwriter or placement agent, Wainwright (or any affiliate designated
by Wainwright) shall have the right to act as joint lead book runner, joint lead underwriter or joint lead placement agent for
such financing provided that Wainwright (or any affiliate designated by Wainwright) shall be entitled to at least 30% of the economics
of such financing. If Wainwright or one of its affiliates decides to accept any such engagement, the agreement governing such engagement
will contain, among other things, provisions for customary fees for transactions of similar size and nature and the provisions
of this Agreement, including indemnification, which are appropriate to such a transaction.


 


B.           Term
and Termination of Engagement: Exclusivity. The term of Wainwright’s exclusive engagement will begin on the date
hereof and end 30 days after the date hereof (the “Term”).
Notwithstanding anything to the contrary contained herein, the Company agrees that the provisions relating to the payment of fees,
reimbursement of expenses, indemnification and contribution, confidentiality, conflicts, independent contractor and waiver of the
right to trial by jury will survive any termination of this Agreement. During Wainwright’s engagement hereunder: (i) the
Company will not, and will not permit its representatives to, other than in coordination with Wainwright, contact or solicit institutions,
corporations or other entities or individuals as potential purchasers of the Securities and (ii) the Company will not pursue any
financing transaction which would be in lieu of a Offering. Furthermore, the Company agrees that during Wainwright’s engagement
hereunder, all inquiries, whether direct or indirect, from prospective investors will be referred to Wainwright and will be deemed
to have been contacted by Wainwright in connection with an Offering. Additionally, except as set forth hereunder, the Company represents,
warrants and covenants that no brokerage or finder’s fees or commissions are or will be payable by the Company or any subsidiary
of the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other third-party
with respect to any Offering.


 


C.           Information:
Reliance. The Company shall furnish, or cause to be furnished, to Wainwright all information reasonably requested by
Wainwright for the purpose of rendering services hereunder (all such information being the “Information”).
In addition, the Company agrees to make available to Wainwright upon reasonable request from time to time the officers, directors,
accountants, counsel and other advisors of the Company. The Company recognizes and confirms that Wainwright (a) will use and rely
on the Information, including any documents provided to investors in each Offering (the “Offering
Documents” which shall include any Purchase Agreements (as defined below)), and on information available from
generally recognized public sources in performing the services contemplated by this Agreement without having independently verified
the same; (b) does not assume responsibility for the accuracy or completeness of the Offering Documents or the Information and
such other information; and (c) will not make an appraisal of any of the assets or liabilities of the Company. Upon reasonable
request, the Company will meet with Wainwright or its representatives to discuss all information relevant for disclosure in the
Offering Documents and will cooperate in any investigation undertaken by Wainwright thereof, including any document included or
incorporated by reference therein. At each Offering, at the request of Wainwright, the Company shall deliver such legal letters,
comfort letters and officer’s certificates, all in form and substance reasonably satisfactory to Wainwright and its counsel
as is customary for such Offering. Wainwright shall be a third party beneficiary of any representations, warranties, covenants
and closing conditions made by the Company in any Offering Documents, including representations, warranties, covenants and closing
conditions made to any investor in an Offering.


 




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D.           Related
Agreements. At each Offering, the Company shall enter into the following additional agreements:


 


1.          Underwritten
Offering. If an Offering is an underwritten Offering, the Company and Wainwright shall enter into a customary underwriting
agreement in form and substance satisfactory to Wainwright and its counsel.


 


2.          Best
Efforts Offering. If an Offering is on a best efforts basis, the sale of Securities to the investors in the Offering
will be evidenced by a purchase agreement (“Purchase
Agreement”) between the Company and such investors in a form reasonably satisfactory to the Company and Wainwright.
Prior to the signing of any Purchase Agreement, officers of the Company with responsibility for financial affairs will be available
to answer inquiries from prospective investors.


 


3.          Escrow
and Settlement. In respect of each Offering, the Company and Wainwright shall enter into an escrow agreement with a
third party escrow agent, which may also be Wainwright’s clearing agent, pursuant to which Wainwright’s compensation
and expenses shall be paid from the gross proceeds of the Securities sold. If the Offering is settled in whole or in part via delivery
versus payment (“DVP”), Wainwright shall arrange for its clearing agent to provide the funds to facilitate such settlement.
The Company shall bear the cost of the escrow agent and shall reimburse Wainwright for the actual out of pocket cost of such clearing
agent settlement and financing, if any, of $10,000.


 


4.          FINRA
Amendments. Notwithstanding anything herein to the contrary, in the event that Wainwright determines that any of the
terms provided for hereunder shall not comply with a FINRA rule, including but not limited to FINRA Rule 5110, then the Company
shall agree to amend this Agreement (or include such revisions in the final underwriting) in writing upon the request of Wainwright
to comply with any such rules; provided that any such amendments shall not provide for terms that are less favorable to the Company.


 


E.           Confidentiality.
In the event of the consummation or public announcement of any Offering, Wainwright shall have the right to disclose its participation
in such Offering, including, without limitation, the Offering at its cost of “tombstone” advertisements in financial
and other newspapers and journals.


 


F.           Indemnity.


 


1.          In
connection with the Company’s engagement of Wainwright as Offering agent, the Company hereby agrees to indemnify and hold
harmless Wainwright and its affiliates, and the respective controlling persons, directors, officers, members, shareholders, agents
and employees of any of the foregoing (collectively the “Indemnified
Persons”), from and against any and all claims, actions, suits, proceedings (including those of shareholders),
damages, liabilities and expenses incurred by any of them (including the reasonable fees and expenses of counsel), as incurred,
(collectively a “Claim”),
that are (A) related to or arise out of (i) any actions taken or omitted to be taken (including any untrue statements made or any
statements omitted to be made) by the Company, or (ii) any actions taken or omitted to be taken by any Indemnified Person in connection
with the Company’s engagement of Wainwright, or (B) otherwise relate to or arise out of Wainwright’s activities on
the Company’s behalf under Wainwright’s engagement, and the Company shall reimburse any Indemnified Person for all
expenses (including the reasonable fees and expenses of counsel) as incurred by such Indemnified Person in connection with investigating,
preparing or defending any such claim, action, suit or proceeding, whether or not in connection with pending or threatened litigation
in which any Indemnified Person is a party. The Company will not, however, be responsible for any Claim that is finally judicially
determined to have resulted from the gross negligence or willful misconduct of any person seeking indemnification for such Claim.
The Company further agrees that no Indemnified Person shall have any liability to the Company for or in connection with the Company’s
engagement of Wainwright except for any Claim incurred by the Company as a result of such Indemnified Person’s gross negligence
or willful misconduct.


 




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2.          The
Company further agrees that it will not, without the prior written consent of Wainwright, settle, compromise or consent to the
entry of any judgment in any pending or threatened Claim in respect of which indemnification may be sought hereunder (whether or
not any Indemnified Person is an actual or potential party to such Claim), unless such settlement, compromise or consent includes
an unconditional, irrevocable release of each Indemnified Person from any and all liability arising out of such Claim.


 


3.          Promptly
upon receipt by an Indemnified Person of notice of any complaint or the assertion or institution of any Claim with respect to which
indemnification is being sought hereunder, such Indemnified Person shall notify the Company in writing of such complaint or of
such assertion or institution but failure to so notify the Company shall not relieve the Company from any obligation it may have
hereunder, except and only to the extent such failure results in the forfeiture by the Company of substantial rights and defenses.
If the Company so elects or is requested by such Indemnified Person, the Company will assume the defense of such Claim, including
the employment of counsel reasonably satisfactory to such Indemnified Person and the payment of the fees and expenses of such counsel.
In the event, however, that legal counsel to such Indemnified Person reasonably determines that having common counsel would present
such counsel with a conflict of interest or if the defendant in, or target of, any such Claim, includes an Indemnified Person and
the Company, and legal counsel to such Indemnified Person reasonably concludes that there may be legal defenses available to it
or other Indemnified Persons different from or in addition to those available to the Company, then such Indemnified Person may
employ its own separate counsel to represent or defend him, her or it in any such Claim and the Company shall pay the reasonable
fees and expenses of such counsel. Notwithstanding anything herein to the contrary, if the Company fails timely or diligently to
defend, contest, or otherwise protect against any Claim, the relevant Indemnified Party shall have the right, but not the obligation,
to defend, contest, compromise, settle, assert crossclaims, or counterclaims or otherwise protect against the same, and shall be
fully indemnified by the Company therefor, including without limitation, for the reasonable fees and expenses of its counsel and
all amounts paid as a result of such Claim or the compromise or settlement thereof. Notwithstanding anything herein to the contrary,
it is agreed that the Company shall not, in connection with any proceeding or related proceedings, be liable for the fees and expenses
of more than one separate firm for all Indemnified Persons. In addition, with respect to any Claim in which the Company assumes
the defense, the Indemnified Person shall have the right to participate in such Claim and to retain his, her or its own counsel
therefor at his, her or its own expense.


 


4.          The
Company agrees that if any indemnity sought by an Indemnified Person hereunder is held by a court to be unavailable for any reason
then (whether or not Wainwright is the Indemnified Person), the Company and Wainwright shall contribute to the Claim for which
such indemnity is held unavailable in such proportion as is appropriate to reflect the relative benefits to the Company, on the
one hand, and Wainwright on the other, in connection with Wainwright’s engagement referred to above, subject to the limitation
that in no event shall the amount of Wainwright’s contribution to such Claim exceed the amount of fees actually received
by Wainwright from the Company pursuant to Wainwright’s engagement. The Company hereby agrees that the relative benefits
to the Company, on the one hand, and Wainwright on the other, with respect to Wainwright’s engagement shall be deemed to
be in the same proportion as (a) the total value paid or proposed to be paid or received by the Company pursuant to the applicable
Offering (whether or not consummated) for which Wainwright is engaged to render services bears to (b) the fee paid or proposed
to be paid to Wainwright in connection with such engagement.


 




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5.          The
Company’s indemnity, reimbursement and contribution obligations under this Agreement (a) shall be in addition to, and shall
in no way limit or otherwise adversely affect any rights that any Indemnified Party may have at law or at equity and (b) shall
be effective whether or not the Company is at fault in any way.


 


G.           Limitation
of Engagement to the Company. The Company acknowledges that Wainwright has been retained only by the Company, that Wainwright
is providing services hereunder as an independent contractor (and not in any fiduciary or agency capacity) and that the Company’s
engagement of Wainwright is not deemed to be on behalf of, and is not intended to confer rights upon, any shareholder, owner or
partner of the Company or any other person not a party hereto as against Wainwright or any of its affiliates, or any of its or
their respective officers, directors, controlling persons (within the meaning of Section 15 of the Securities Act or Section 20
of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)), employees or agents. Unless otherwise expressly agreed in writing by Wainwright, no one other than the
Company is authorized to rely upon this Agreement or any other statements or conduct of Wainwright, and no one other than the Company
is intended to be a beneficiary of this Agreement. The Company acknowledges that any recommendation or advice, written or oral,
given by Wainwright to the Company in connection with Wainwright’s engagement is intended solely for the benefit and use
of the Company’s management and directors in considering a possible Offering, and any such recommendation or advice is not
on behalf of, and shall not confer any rights or remedies upon, any other person or be used or relied upon for any other purpose.
Wainwright shall not have the authority to make any commitment binding on the Company. The Company, in its sole discretion, shall
have the right to reject any investor introduced to it by Wainwright.


 


H.           Limitation
of Wainwright’s Liability to the Company. Wainwright and the Company further agree that neither Wainwright nor
any of its affiliates or any of its their respective officers, directors, controlling persons (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act), employees or agents shall have any liability to the Company, its security
holders or creditors, or any person asserting claims on behalf of or in the right of the Company (whether direct or indirect, in
contract, tort, for an act of negligence or otherwise) for any losses, fees, damages, liabilities, costs, expenses or equitable
relief arising out of or relating to this Agreement or the services rendered hereunder, except for losses, fees, damages, liabilities,
costs or expenses that arise out of or are based on any action of or failure to act by Wainwright and that are finally judicially
determined to have resulted solely from the gross negligence or willful misconduct of Wainwright.


 


I.           Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable
to agreements made and to be fully performed therein. Any disputes that arise under this Agreement, even after the termination
of this Agreement, will be heard only in the state or federal courts located in the City of New York, State of New York. The parties
hereto expressly agree to submit themselves to the jurisdiction of the foregoing courts in the City of New York, State of New York.
The parties hereto expressly waive any rights they may have to contest the jurisdiction, venue or authority of any court sitting
in the City and State of New York. In the event Wainwright or any Indemnified Person is successful in any action, or suit against
the Company, arising out of or relating to this Agreement, the final judgment or award entered shall be entitled to have and recover
from the Company the costs and expenses incurred in connection therewith, including its reasonable attorneys’ fees. Any rights
to trial by jury with respect to any such action, proceeding or suit are hereby waived by Wainwright and the Company.


 


J.           Notices.
All notices hereunder will be in writing and sent by certified mail, hand delivery, overnight delivery or fax, if sent to Wainwright,
at the address set forth on the first page hereof, e-mail: notices@hcwco.com, Attention: Head of Investment Banking, and if sent
to the Company, to the address set forth on the first page hereof, fax number                         
Attention: Chief Executive Officer. Notices sent by certified mail shall be deemed received five days thereafter, notices
sent by hand delivery or overnight delivery shall be deemed received on the date of the relevant written record of receipt, and
notices delivered by fax shall be deemed received as of the date and time printed thereon by the fax machine.


 




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K.          Conflicts.
The Company acknowledges that Wainwright and its affiliates may have and may continue to have investment banking and other relationships
with parties other than the Company pursuant to which Wainwright may acquire information of interest to the Company. Wainwright
shall have no obligation to disclose such information to the Company or to use such information in connection with any contemplated
transaction.


 


L.           Anti-Money
Laundering. To help the United States government fight the funding of terrorism and money laundering, the federal laws
of the United States requires all financial institutions to obtain, verify and record information that identifies each person with
whom they do business. This means we must ask you for certain identifying information, including a government-issued identification
number (e.g., a U.S. taxpayer identification number) and such other information or documents that we consider appropriate to verify
your identity, such as certified articles of incorporation, a government-issued business license, a partnership agreement or a
trust instrument.


 


M.        Miscellaneous.
The Company represents and warrants that it has all requisite power and authority to enter into and carry out the terms and provisions
of this Agreement and the execution, delivery and performance of this Agreement does not breach or conflict with any agreement,
document or instrument to which it is a party or bound. This Agreement shall not be modified or amended except in writing signed
by Wainwright and the Company. This Agreement shall be binding upon and inure to the benefit of both Wainwright and the Company
and their respective assigns, successors, and legal representatives. This Agreement constitutes the entire agreement of Wainwright
and the Company with respect to this Offering and supersedes any prior agreements with respect to the subject matter hereof. If
any provision of this Agreement is determined to be invalid or unenforceable in any respect, such determination will not affect
such provision in any other respect, and the remainder of the Agreement shall remain in full force and effect. This Agreement may
be executed in counterparts (including facsimile counterparts), each of which shall be deemed an original but all of which together
shall constitute one and the same instrument.


 


*********************


 




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In
acknowledgment that the foregoing correctly sets forth the understanding reached by Wainwright and the Company, please sign in
the space provided below, whereupon this letter shall constitute a binding Agreement as of the date indicated above.


 





	 	Very truly yours,
	 	 
	 	H.C.
    WAINWRIGHT & CO., LLC
	 	 	 
	 	By	  /s/John Chambers 
	 	 	Name: John Chambers
	 	 	Title: President




 


	Accepted and Agreed:	 
	 	 
	CYTRX CORPORATION	 
	 	 	 
	By	/s/ John Y. Caloz	 
	 	Name: John Y. Caloz	 
	 	Title: CFO	 


 




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