Exhibit 10.4


 


 


 


Execution Version


 


November 30, 2020


 


SunHydrogen, Inc.


10 E. Yanonali, Suite 36


Santa Barbara, California 93101


 


Attn: Timothy Young, Chief Executive Officer and Acting Chief Financial
Officer


 


Dear Mr. Young:


 


This letter agreement (this
“Agreement”) constitutes the agreement between SunHydrogen, 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 an Offering. 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 (or common stock equivalent, if applicable) placed in each Offering (and
if an Offering includes a “greenshoe” or “additional investment” component, such number of shares of common
stock underlying such “greenshoe” or “additional investment” component, with the Wainwright Warrants issuable
upon the exercise of such component). If the Securities included in an Offering are convertible, the Wainwright Warrants shall
be determined by dividing the gross proceeds raised in such Offering by the Offering Price (as defined hereunder). 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 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 warrants are issued to investors in an Offering, 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.



 


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) a management fee equal to 1.0% of the gross proceeds raised in each Offering; (b) $35,000 for non-accountable expenses (to
be increased to $50,000 in case of a public Offering, provided that, for the avoidance of doubt, a registered direct offering will
not be deemed a public Offering); (c) up to $50,000 for fees and expenses of legal counsel and other out-of-pocket expenses (to
be increased to $100,000 in case of a public Offering); plus the additional amount payable by the Company pursuant to Paragraph
D.3 hereunder and, if applicable, the costs associated with the use of a third-party electronic road show service (such as NetRoadshow);
provided, however, that such amount in no way limits or impairs the indemnification and contribution provisions of this Agreement.



 


		4.	Tail. 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 brought over-the-wall during the Term in connection with an Offering, 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. If, from the date of the closing of an Offering 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, 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, 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 (including at-the-market facility) or a private placement or any other capital-raising financing of
equity, equity-linked or debt securities, 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, provided however, Wainwright’s right
of first refusal will not apply to any transaction with GHS Investments, LLC. 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 seven (7) business days thereafter, provided that, in the event definitive agreements for the sale of Securities are executed
within such seven (7) business day period, the term of this Agreement will end six (6) months 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, 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 or expiration 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(g)(5)(B)(i). 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) and, if applicable, for electronic road show service
used in connection with an Offering. 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 from
prospective investors will be referred to Wainwright. 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. For the avoidance of doubt, this Agreement will terminate if execution of definitive agreements for
the sale of Securities does not occur within seven (7) business days of the date hereof.


 


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, closing conditions and closing deliverables made by the Company in any Offering Documents,
including representations, warranties, covenants, closing conditions and closing deliverables 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, warranties, covenants, closing conditions and closing deliverables 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, Settlement and Closing. If each Offering is not settled via delivery versus payment
(“DVP”), the Company and Wainwright shall enter into an escrow agreement with a third party escrow 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 DVP, Wainwright shall arrange for its clearing agent to provide the funds to facilitate such
settlement. The Company shall pay Wainwright closing costs, which shall also include the reimbursement of the out-of-pocket cost
of the escrow agent or clearing agent, as applicable, which closing costs shall not exceed $12,900.



 


		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.



 






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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 hereunder, 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, whether or not the Company is a party thereto
(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 such Indemnified Person 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 is requested by such Indemnified Person, the Company will assume the defense
of such Claim, including the employment of counsel for such Indemnified Person and the payment of the fees and expenses of such
counsel, provided, however, that such counsel shall be satisfactory to the Indemnified Person and provided further that if the
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, such Indemnified Person will employ its own separate counsel (including
local counsel, if necessary) 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. If such Indemnified Person does not request that the Company assume the defense of such Claim, such
Indemnified Person will employ its own separate counsel (including local counsel, if necessary) 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.



 






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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 Person 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 or 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.


 






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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 e-mail, 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: tyoung@sunhydrogen.com, 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 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:	 
	 		Date:	 


 


	Accepted and Agreed:
	 	 	 	 
	SunHydrogen, Inc.
	 	 	 	 
	By: 	 	 
		Name:	 	 
		Title: