Exhibit 10.1


 


 


 


January
18, 2017


 


STRICTLY
CONFIDENTIAL


 


Pnina
Fishman, Ph.D.,

Chief Executive Officer


Can-Fite
BioPharma Ltd.


10
Bareket Street

Kiryat Matalon

P.O. Box 7537

Petah-Tikva 49170


 


Dear
Prof. Fishman:


 


This
letter agreement (this “Agreement”) constitutes the agreement between Can-Fite BioPharma Ltd. (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, unless otherwise agreed, 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, and any payments to such shall be from Wainwright’s
share of the economics hereunder.


 


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% of the aggregate gross proceeds raised in the Offering.


 


2. Warrant
Coverage. The Company shall issue to Wainwright or its designees warrants (the “Wainwright
Warrants”) to purchase that number of American Depositary Shares of the Company (“ADSs”) equal
to 5% of the aggregate number of ADSs placed in the Offering. The Wainwright Warrants shall have the same terms as the
warrants, if any, issued to investors in the applicable Offering, provided that the Wainwright Warrants shall be issued and
delivered to Wainwright following the Company’s action to increase the number of authorized ordinary shares of the
Company. If no warrants are issued to investors in an Offering, the Wainwright Warrants shall be in a customary form
reasonably acceptable to Wainwright, have a term of 5 years and an exercise price equal to 110% of the then market price of
the ADSs.


 


 


 


 


 


 


 


 





 



430
Park Avenue | New York, New York 10022 | 212.356.0500 | www.hcwco.com


Member:
FINRA/SIPC



 






     

     


    

 


3. Expense
Allowance. Out of the proceeds of each Closing, the Company also agrees to pay Wainwright a non-accountable
expense allowance of $50,000 (provided, however, that such reimbursement amount in no way limits or impairs the
indemnification and contribution provisions of this Agreement).


 


4. 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
which 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 9-month period following the expiration or termination of this
Agreement. The tail shall be limited to a total of 10 investors.


 


B. Term
and Termination of Engagement; Exclusivity. The term of Wainwright’s exclusive engagement will begin on the date
hereof and end on February 18, 2017 (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 the Term: (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 an Offering. Furthermore, the Company agrees that during the Term, 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.


 


C. Information;
Reliance. The Company shall furnish, or cause to be furnished, to Wainwright all information 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 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 the 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
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.


 


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


 


1. Underwritten
Offering. If the 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.


 






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2. Best
Efforts Offering. If the 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.


 


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.


 


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.


 






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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. 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.


 


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.


 






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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 of the bringing of any action, or suit by a
party hereto against the other party hereto, arising out of or relating to this Agreement, the party in whose favor the final
judgment or award shall be entered shall be entitled to have and recover from the other party 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, to H. C. Wainwright & Co. LLC, at the address set forth on the first page hereof, fax number
____________, 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.


 


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.


 






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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; including, but not limited to the engagement letter dated as of October
27, 2016. 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	             
	 	Name:	 
	 	Title:	 







 





	Accepted
    and Agreed:	 
	 	 
	CAN-FITE
    BIOPHARMA LTD.    	 
	 	 	 
	By	 	 
	Name:	Pnina
    Fishman, Ph.D.,	 
	Title:	Chief
    Executive Officer	 




 






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List
of Investors for Tail Fee


Anson
Capital


Ayrton
Capital


Brio
Capital


Empery
Asset Management


Heights
Capital


Hudson
Bay Capital


Intracoastal
Capital


LH
Financial


Sabby
Capital


Shamir
Capital


 


 


8