Exhibit
10.2


 





 


March
28, 2018


 


STRICTLY
CONFIDENTIAL


 


Citius
Pharmaceuticals, Inc.


11
Commerce Drive, 1st Floor


Cranford,
NJ 07016


 


Attn:
Myron Holubiak, President and Chief Executive Officer


 


Dear
Mr. Holubiak:


 


This
letter agreement (this “Agreement”) constitutes the agreement between Citius Pharmaceuticals, Inc. (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 (the “Securities”)
during the Term (as hereinafter defined) 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 7.0% of the aggregate gross proceeds raised in each
                                         Offering.



 


		2.	Warrant
                                         Coverage. The Company shall issue to Wainwright or its designees at each Closing,
                                         warrants (the “Wainwright Warrants”) to purchase that number of shares
                                         of common stock of the Company equal to 7.0% of the aggregate number of shares of common
                                         stock placed in each Offering (and if an Offering includes a “greenshoe”
                                         or “additional investment” option component, such number of shares of common
                                         stock underlying such additional option component, with the Wainwright Warrants issuable
                                         upon the exercise of such option). If the Securities included in an Offering are convertible,
                                         the Wainwright Warrants shall be determined by dividing the gross proceeds raised in
                                         such Offering divided by the Offering Price (as defined hereunder). The Wainwright Warrants
                                         shall have the same terms as the warrants issued to investors in the applicable Offering,
                                         except that such Wainwright Warrants shall have an exercise price equal to 125% of the
                                         offering price per share (or unit, if applicable) in the applicable Offering and if such
                                         offering price is not available, the market price of the common stock on the date an
                                         Offering is commenced (such price, the “Offering Price”). 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 five (5) years and an exercise
                                         price equal to 125% of the Offering Price.



 





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) $35,000 for non-accountable expenses; (b) up to $50,000 for fees and expenses of
                                         legal counsel and other out-of-pocket expenses; plus the additional reimbursable amount
                                         payable by the Company pursuant to Paragraph D.3 hereunder; provided, however, that such
                                         reimbursement amount in no way limits or impairs the indemnification and contribution
                                         provisions of this Agreement.



 


		4.	Tail.
                                         Provided a Closing occurs during the Term, 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 (a) investors whom Wainwright introduced to the
                                         Company during the Term or (b) investors with whom the Company had an in-person meeting
                                         or a call during the Term, if such Tail Financing is consummated at any time within the
                                         12-month period following the expiration or termination of this Agreement.



 


		5.	Right
                                         of First Refusal. Provided a Closing occurs during the Term, if, from the date hereof
                                         until the 12-month anniversary following consummation of each Offering, the Company or
                                         any of its subsidiaries (a) decides to dispose of or acquire business units or acquire
                                         any of its outstanding securities or make any exchange or tender offer or enter into
                                         a merger, consolidation or other business combination or any recapitalization, reorganization,
                                         restructuring or other similar transaction, including, without limitation, an extraordinary
                                         dividend or distributions or a spin-off or split-off, and the Company decides to retain
                                         a financial advisor for such transaction, Wainwright (or any affiliate designated by
                                         Wainwright) shall have the right to act as the Company’s exclusive financial advisor
                                         for any such transaction; or (b) 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 sole book-runner, sole manager, sole placement agent or sole agent
                                         with respect to such financing or refinancing; or (c) 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 sole book-running manager, sole underwriter or sole placement agent
                                         for 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.



 






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B.       Term
and Termination of Engagement; Exclusivity. The term of Wainwright’s exclusive engagement will begin on the date hereof
and end ninety (90) days thereafter (the “Term”). Notwithstanding anything to the contrary contained herein,
the Company agrees that the provisions relating to the payment of fees, reimbursement of expenses, right of first refusal, tail,
indemnification and contribution, confidentiality, conflicts, independent contractor and waiver of the right to trial by jury
will survive any termination of this Agreement. Notwithstanding anything to the contrary contained herein, the Company has the
right to terminate the Agreement for cause in compliance with FINRA Rule 5110(f)(2)(D)(ii). The exercise of such right of termination
for cause eliminates the Company’s obligations with respect to the provisions relating to the tail fees and right of first
refusal. Notwithstanding anything to the contrary contained in this Agreement, in the event that an Offering pursuant to this
Agreement shall not be carried out for any reason whatsoever during the Term, the Company shall be obligated to pay to Wainwright
its actual and accountable out-of-pocket expenses related to an Offering (including the fees and disbursements of Wainwright’s
legal counsel). 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 an 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 requested by Wainwright for the
purpose of rendering services hereunder and conducting due diligence (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 each Offering (the “Offering Documents”) which shall include
any Purchase Agreement (as defined hereunder), 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 (including, without limitation, negative
assurance letters), opinions, comfort letters, officers’ and secretary certificates and good standing 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.


 






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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. Wainwright shall be a third party beneficiary with respect
                                         to the representations and warranties included in the Purchase Agreement. 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, which
                                         cost shall not exceed $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 agreement) 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 than are
                                         reflected in this Agreement.



 


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.


 






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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 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 Person 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 Person 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 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.


 






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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, e-mail: _________________, 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, notices delivered by fax shall be deemed received
as of the date and time printed thereon by the fax machine and notices sent by e-mail shall be deemed received as of the date
and time they were sent.


 


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 require all financial institutions to obtain, verify and record information that identifies each person with
whom they do business. This means Wainwright must ask the Company 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 Wainwright considers
appropriate to verify the Company’s 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 the subject matter hereof 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 or electronic 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:


 


Citius
Pharmaceuticals, Inc.


 





	By:	 	 
	 	Name:	 
	 	Title:	 




 


 


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