Exhibit 10.8.1


 





 


June 2, 2016


 


STRICTLY CONFIDENTIAL


NeuroMetrix, Inc.


1000 Winter Street


Waltham, MA 02451


Attn: Thomas Higgins


 


Dear Sirs:


 


This letter agreement
(this “Agreement”) constitutes the agreement between NeuroMetrix, Inc. (the “Company”) and
Rodman & Renshaw, a unit of H.C. Wainwright & Co., LLC (“Rodman”), that Rodman 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 Rodman and nothing herein implies that Rodman 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 Rodman’s assistance in an Offering will be subject to the satisfactory completion of such investigation and inquiry
into the affairs of the Company as Rodman deems appropriate under the circumstances and to the receipt of all internal approvals
of Rodman in connection with the transaction. The Company expressly acknowledges and agrees that Rodman’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 Rodman to purchase the Securities
and does not ensure a successful Offering of the Securities or the success of Rodman with respect to securing any other financing
on behalf of the Company. With prior notice to and consent by the Company (which shall not be unreasonably withheld, conditioned
or delayed), Rodman 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 Rodman
as follows:


 


1.          Cash
Fee. The Company shall pay to Rodman a cash commission fee, or as to an underwritten Offering an underwriter discount, equal
to 7.5% of the aggregate gross proceeds raised in each Offering. In addition, the Company shall pay to Rodman a cash management
fee equal to 1% of the aggregate gross proceeds raised in each Offering.


  





 



 


430 Park Avenue | New York, New York 10022
| 212.356.0500


Security services provided by H.C. Wainwright
& Co., LLC | Member: FINRA/SIPC


 




     


     


    

 


2.          Warrant
Coverage. The Company shall issue to Rodman or its designees at each Closing, warrants (the “Rodman 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 (and if the Securities are convertible or include a “greenshoe” or “additional investment”
option component, such number of shares of Common Stock underlying such Securities or options, with the warrant issuable upon conversion
of the Securities or the exercise of the option). If the Securities included in an Offering are non-convertible, the Rodman Warrants
shall be determined by dividing the gross proceeds raised in such Offering divided by the then market price of the Common Stock.
The Rodman Warrants shall have the same terms as the warrants issued to investors in the applicable Offering, except that such
Rodman Warrant shall have an exercise price equal to 125% of the public offering price per share in the applicable Offering. If
no warrants are issued to investors in an Offering, the Rodman Warrants shall be in a customary form reasonably acceptable to the
Company and to Rodman, have a term of 5 years and an exercise price equal to 125% 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 Rodman (a) up to $100,000 for its legal fees
and expenses, of which $25,000 shall be paid upon execution of this Agreement and (b) up to $30,000 for its due diligence and roadshow
expenses (provided, however, that such reimbursement amount in no way limits or impairs the indemnification and contribution
provisions of this Agreement).


 


4.          Compensation
Adjustments. If the Offering includes a stock and/or warrant repurchase from current investors in the Company, resulting in
the Company receiving reduced proceeds from what would be apparent from the face amount of the transaction, the compensation payable
to Rodman under this Agreement will be based on the proceeds of the Offering after deduction of the amount of such proceeds that
are used for such repurchases.


 


5.          Right
of First Refusal. If, following a successful Offering during the Term (as defined below), and prior to the 12 month anniversary
of the date hereof, the Company or any of its subsidiaries (a) decides to finance or refinance any indebtedness using a manager
or agent, Rodman (or any affiliate designated by Rodman) shall have the right to act as lead manager, lead placement agent or lead
agent with respect to 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, Rodman (or any affiliate designated by Rodman) shall have
the right to act as lead underwriter or lead placement agent for such financing. If Rodman 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 Rodman’s exclusive engagement will begin on the date hereof and
end on the five month anniversary of the date hereof (the “Term”). Rodman and the Company recognize the importance
of marketing an equity Offering at the earliest practical date. 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 Rodman’s engagement hereunder: (i) the Company and its representatives will coordinate with and refer to
Rodman any contact or solicitation with 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.


 




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C.           Information;
Reliance. The Company shall furnish, or cause to be furnished, to Rodman all information reasonably requested by Rodman for
the purpose of rendering services hereunder (all such information being the “Information”). In addition, the
Company agrees to make available to Rodman upon request from time to time the officers, directors, accountants, counsel and other
advisors of the Company. The Company recognizes and confirms that Rodman (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 Rodman or its representatives
to discuss all information relevant for disclosure in the Offering Documents and will cooperate in any investigation undertaken
by Rodman thereof, including any document included or incorporated by reference therein. At each Offering, at the request of Rodman,
the Company shall deliver such legal letters (including, without limitation, negative assurance letter), opinions, comfort letters
and officer’s certificates, all in form and substance satisfactory to Rodman and its counsel as is customary for such Offering.
Rodman 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 Rodman shall enter into a customary underwriting agreement
in form and substance satisfactory to Rodman 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 Rodman. 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 Rodman shall enter into an escrow agreement with a third party
escrow agent, which may also be Rodman’s clearing agent, pursuant to which Rodman’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”), Rodman 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 Rodman for the actual out of pocket cost of such clearing agent
settlement and financing, if any.


 




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4.          FINRA
Amendments. Notwithstanding anything herein to the contrary, in the event that Rodman 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 Rodman 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, Rodman 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 Rodman as Offering agent, the Company hereby agrees to indemnify and hold harmless
Rodman 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 Rodman, or (B) otherwise relate to or arise out of Rodman’s activities on the Company’s behalf under
Rodman’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
Rodman 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 Rodman, 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 Rodman is the Indemnified Person), the Company and Rodman 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
Rodman on the other, in connection with Rodman’s engagement referred to above, subject to the limitation that in no event
shall the amount of Rodman’s contribution to such Claim exceed the amount of fees actually received by Rodman from the Company
pursuant to Rodman’s engagement. The Company hereby agrees that the relative benefits to the Company, on the one hand, and
Rodman on the other, with respect to Rodman’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
Rodman is engaged to render services bears to (b) the fee paid or proposed to be paid to Rodman 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 Rodman has been retained only by the Company, that Rodman is providing
services hereunder as an independent contractor (and not in any fiduciary or agency capacity) and that the Company’s engagement
of Rodman 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 Rodman 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 Rodman, no one other than the Company is authorized to rely upon this Agreement or any other statements or conduct of Rodman,
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 Rodman to the Company in connection with Rodman’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. Rodman 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 Rodman.


 


H.           Limitation
of Rodman’s Liability to the Company. Rodman and the Company further agree that neither Rodman 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 Rodman and that are finally judicially determined to have
resulted solely from the gross negligence or willful misconduct of Rodman.


 


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 Rodman 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 Rodman 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 Rodman,
at the address set forth on the first page hereof, e-mail: notices@rodm.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 Rodman and its affiliates may have and may continue to have investment banking and other relationships
with parties other than the Company pursuant to which Rodman may acquire information of interest to the Company. Rodman 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 Rodman and the Company. This Agreement shall be binding upon and inure to the benefit of both Rodman and
the Company and their respective assigns, successors, and legal representatives. This Agreement constitutes the entire
agreement of Rodman 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.


 


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


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


 




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	 	Very truly yours,
	 	 
	 	RODMAN & RENSHAW, A UNIT OF H.C. WAINWRIGHT & CO., LLC
	 	 
	 	By: 	 /s/ Mark W. Viklund
	 	 	Name: Mark W. Viklund
	 	 	Title: Chief Executive Office


 


Accepted and Agreed:


 


	NEUROMETRIX, INC.	 
	 	 
	By:  	/s/ Thomas T. Higgins	 
	Name: Thomas T. Higgins	 
	Title: Chief Financial Officer	 





 






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November 22, 2016


STRICTLY CONFIDENTIAL


 


NeuroMetrix, Inc.


1000 Winter Street


Waltham, MA 02451


Attn: Thomas Higgins


 


Dear Mr. Higgins:


 


Reference is made to
the engagement agreement (the “Engagement Agreement”), dated June 2, 2016, by and between NeuroMetrix, Inc.
(the “Company”) and Rodman & Renshaw, a unit of H.C. Wainwright & Co., LLC (“Rodman”),
pursuant to which Rodman shall serve as the exclusive agent, advisor or underwriter of the Company in connection with an Offering
(as defined in the Engagement Agreement) filed on Form S-1 on a best-efforts basis.


 


The Company and Rodman
hereby agree to amend Sections A.1 and A.2 to clarify that such cash fee and Rodman Warrants shall be payable only on net new funds
(net of proceeds used to redeem the Company’s Series D Preferred Stock and the warrants issued in connection therewith).
As such, Section A.1 and A.2 are hereby amended and restated in their entirety to read as follows:


 


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


 


1. Cash
Fee. The Company shall pay to Rodman a cash commission fee, or as to an underwritten Offering an underwriter discount, equal
to 7.5% of the aggregate gross proceeds raised in each Offering, net of any such proceeds used to redeem the Company’s Series
D Preferred Stock and related warrants. In addition, the Company shall pay to Rodman a cash management fee equal to 1% of the aggregate
gross proceeds raised in each Offering net of any such proceeds used to redeem the Company’s Series D Preferred Stock and
related warrants.


 


2. Warrant
Coverage. The Company shall issue to Rodman or its designees at each Closing, warrants (the “Rodman 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 (and if the Securities are convertible or include a “greenshoe” or “additional investment”
option component, such number of shares of Common Stock underlying such Securities or options, with the warrant issuable upon conversion
of the Securities or the exercise of the option), provided that such Securities sold in the Offering shall be netted against any
redeemed or repurchased Securities that are redeemed or repurchased with the proceeds from the Offering, including the Company’s
Series D Preferred Stock and related warrants. If the Securities included in an Offering are non-convertible, the Rodman Warrants
shall be determined by dividing the gross proceeds raised in such Offering divided by the then market price of the Common Stock.
The Rodman Warrants shall have the same terms as the warrants issued to investors in the applicable Offering, except that such
Rodman Warrant shall have an exercise price equal to 125% of the public offering price per share in the applicable Offering. If
no warrants are issued to investors in an Offering, the Rodman Warrants shall be in a customary form reasonably acceptable to the
Company and to Rodman, have a term of 5 years and an exercise price equal to 125% of the then market price of the Common Stock.


 





 



 


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


Member: FINRA/SIPC


 




     


     


    

 


The Company and Rodman
further agree to amend the first sentence of Section B of the Engagement Agreement to extend the term of the Engagement Agreement
for an additional 5 months


 


As such, Section B.1.
is hereby amended and restated in its entirety to read as follows:


 


“The term
of Rodman’s exclusive engagement will begin on June 2, 2016 and end on the ten month anniversary of such date (the “Term”).”


 


Except as expressly set forth above, all
of the terms and conditions of the Engagement Agreement shall continue in full force and effect after the execution of this agreement
and shall not be in any way changed, modified or superseded by the terms set forth herein. Defined terms used herein but not defined
herein shall have the meanings given to such terms in the Engagement Agreement.


 


This agreement may be executed in two or
more counterparts and by facsimile or “.pdf” signature or otherwise, and each of such counterparts shall be deemed
an original and all of such counterparts together shall constitute one and the same agreement.


 





 



 


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


Member: FINRA/SIPC


 




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IN WITNESS WHEREOF, this agreement
is executed as of the date first set forth above.


 


	 	Very truly yours,
	 	 
	 	RODMAN & RENSHAW, A UNIT OF H.C. WAINWRIGHT & CO., LLC
	 	 
	 	By 	/s/ Mark W. Viklund
	 	 	Name: Mark W. Viklund
	 	 	Title: Chief Executive Officer


 


Accepted and Agreed:


 


	neurometrix, INC.	 
	 	 	 
	By 	/s/ Thomas T. Higgins	 
	 	Name: Thomas T. Higgins	 
	 	Title: Chief Financial Officer	 


 





 



 


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


Member: FINRA/SIPC


 




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