Exhibit
10.47


 


 


 


		October 14, 2016




 


STRICTLY
CONFIDENTIAL


Bellerophon
Therapeutics, Inc.


184
Liberty Corner Road, Suite 302 


Warren,
New Jersey 07059 


Attn:
Fabian Tenenbaum, CFO


 


This
letter agreement (this “Agreement”)
constitutes the agreement between Bellerophon Therapeutics, 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 (“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 7.5%
of the aggregate gross proceeds raised in each Offering; provided, that if New Mountain Vantage Advisors, LLC or Linde North America
or their affiliates invest in an Offering, the cash fee with respect to such investors shall be 4.0%.


 


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 5% of the aggregate number of shares of Common Stock placed in each Offering
(which shall not include the shares of Common Stock underlying the warrants issued to investors in the Offering) (if the Securities
are convertible or include a “greenshoe” or “additional investment” option component, such shares of Common
Stock underlying such Securities or options), provided, that if New Mountain Vantage Advisors, LLC or Linde North America or their
affiliates invest in an Offering, the Wainwright Warrants with respect to such investors shall be 2.0% of the number of shares
of Common Stock placed to such investors. If the Securities included in an Offering are non-convertible, the Wainwright Warrants
shall be determined by dividing the gross proceeds raised in such Offering divided by the then market price of the Common Stock.
The Wainwright Warrants shall have the same terms as the warrants issued to investors in the applicable Offering, except that the
Wainwright Warrants will have an exercise price equal to 125% of the per share offering price in the applicable Offering and shall
otherwise comply with FINRA Rule 5110(g). If no warrants are issued to investors


 





 






 


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


Member:
FINRA/SIPC


 




     


     


    

 


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 Common Stock.


 


3.       Expense
Allowance. Out of the proceeds of each Closing, the Company also agrees to pay Wainwright (a) a management fee equal to 1.0%
of gross proceeds from an Offering, if, but only if, the Offering is registered on Form S-1, (a) $10,000 for expenses incurred
by Wainwright in connection with marketing the transaction (i.e., road show expenses, background checks, tombstones, etc.) and
(b) up to $100,000 for accountable 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). Within
10 days of the execution of this engagement letter the Company shall advance Wainwright the sum of $25,000 against such expenses,
subject to reimbursement by Wainwright to the Company if not used, in accordance with FINRA Rule 5110(f)(2)(C) and (f)(2)(D). Such
sum shall be credited against the up to $100,000 expense allowance in the case of a completed Offering.


 


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 whom Wainwright had contacted during the Term, or introduced, directly
or indirectly, to the Company during the Term, if such Tail Financing is consummated at any time within the 6-month period following
the expiration or termination of this Agreement.


 


5.       Right
of First Refusal. If within the 6-month period 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 lead book runner, lead manager, lead placement agent or lead 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 lead book runner, lead
underwriter or lead 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.


 


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 effective date of the
Company’s registration statement on Form S-1 to be filed within a reasonable time 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 


 




    	 	2	 



     


    

 


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.


 


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 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 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 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.       Settlement.
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 reimburse Wainwright up to $10,000 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.


 




    	 	3	 



     


    

 


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.


 


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 


 




    	 	4	 



     


    

 


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.


 


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 


 




    	 	5	 



     


    

 


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, to H. C. Wainwright & Co. LLC, 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.


 


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.


 




    	 	6	 



     


    

 


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


 




    	 	7	 



     


    

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:


 


BELLEROPHON THERAPEUTICS, INC.


 


	By	/s/
     Fabian Tenenbaum	
	 	Name: Fabian Tenenbaum	
	 	Title:   CFO &
    CBO	 


 




    	 	8