DIAZ & ALTSCHUL
CAPITAL, LLC
July 1, 1998
ImClone Systems Incorporated
180 Varick Street
New York, New York 10014
Attention: Dr. Harlan Waksal
Dear Sir:
Engagement Agreement
This letter agreement (this 'Agreement') confirms the understanding
between ImClone Systems Incorporated, a Delaware corporation (with its
affiliates collectively, the 'Company'), and Diaz & Altschul Capital, LLC (the
'Financial Advisor'), pursuant to which the Company has retained the Financial
Advisor to render certain financial advisory services to the Company in
connection with a currently contemplated transaction, on the terms and subject
to the conditions set forth herein, in connection with the matters referred to
herein.
1. Retention. The Company hereby retains the Financial Advisor to assist
the Company in analyzing, structuring, negotiating, and effecting the proposed
Transaction on the terms and conditions of this Agreement. If requested by the
Company, the Financial Advisor will render an opinion, as to whether or not the
Transaction is fair, from a financial point of view, to the stockholders of the
Company. If an opinion is requested, the Company and the Financial Advisor will
enter into a separate agreement containing customary terms and conditions to be
mutually agreed upon. The parties acknowledge that such an opinion may be
requested from a third party. In addition, the parties acknowledge that the
Financial Advisor might retain Hambrecht & Quist Incorporated ('H&Q') to assist
the Financial Advisor in rendering its services under this Agreement in
connection with the Transaction. In connection with such retention, the
Financial Advisor shall be solely responsible for any compensation payable to
H&Q in connection with the Transaction
2. Transaction. As used in this Agreement, the term 'Transaction' means
the currently contemplated purchase directly from the Company or from the
Company's shareholders of not less than 20% of the Company's common stock ($.001
par value) (the 'Common Stock') outstanding after the Transaction, or securities
convertible into not less that 20% of the Company's Common Stock outstanding
after the Transaction. The parties acknowledge that the Transaction is separate
and apart from subsequent purchases that may occur making up a larger
transaction.
745 FIFTH AVENUE SUITE 3001 NEW YORK, NY 10151
PHONE 212.751.1011 FAX 212.751.5757
MEMBER-NASD
3. Compensation. As compensation for the Financial Advisor's services
hereunder, the Company agrees to pay the Financial Advisor the following fees:
(a) a retainer fee of $35,000 per month (the 'Retainer Fee'), payable
monthly in advance, commencing on July 1, 1998 and terminating upon
the earlier of the closing of the Transaction or the date that the
Company notifies the Financial Advisor that it no longer intends to
pursue the Transaction which amount shall be creditable against the
Transaction Fee set forth in (b) below, and
(b) a fee (the 'Transaction Fee') equal to .75% of the consideration
paid in the Transaction
4. Expenses. Whether or not any Transaction is agreed to or consummated,
the Company agrees to reimburse the Financial Advisor, upon request from time to
time, for its reasonable out-of-pocket expenses, including the reasonable fees
and expenses of its legal counsel and any agents or experts that may be retained
by the Financial Advisor, incurred in connection with the services performed
hereunder and the other advisory and capital raising assignments and
transactions for which the Financial Advisor has performed financial advisory
services to the Company; provided however, that such reimbursable expenses will
not exceed in the aggregate $35,000 without the consent of the Company.
5. Termination or Resignation. Subject to Section 8 hereof, the Financial
Advisor shall have the right at any time during the term of this Agreement to
resign on ten days' prior written notice and the Company shall have the right at
any time during the term of this Agreement to terminate the Financial Advisor's
services under this Agreement for any reason on ten days' prior written notice.
If the Company terminates the Financial Advisor's services hereunder at any
time, with respect to the consummation of the Transaction within 12 months after
such termination, the Financial Advisor shall be entitled to receive all of the
amounts payable pursuant to Section 3 hereof as if the Financial Advisor's
services had not been terminated.
6. Indemnity. As the Financial Advisor shall be acting on behalf of the
Company, the Company agrees to indemnify the Financial Advisor and the other
Indemnified Persons as set forth in Schedule 1 hereto, which is incorporated
herein and made a part hereof.
7. Representations and Warranties of Company. The Company represents and
warrants as follows:
(a) This Agreement has been duly authorized and validly executed and
delivered by the Company and constitutes a legal, valid and binding agreement of
the Company enforceable against the Company in accordance with its terms.
(b) Any information provided to the Financial Advisor by the Company in
connection with the Transaction, or any document distributed by the Company to
its stockholders or filed by the Company with the Securities and Exchange
Commission or any other federal,
2
state, local or foreign government or any agency or department thereof will not
contain any untrue statements of a material fact or omit to state therein a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
8. Further Covenants of the Company. The Company agrees as follows:
(a) The Company agrees that, except as otherwise required by law, any
reference to the Financial Advisor or any affiliate of the Financial Advisor in
any document, or any other release or communication to any party outside the
Company, is subject to the Financial Advisor's prior approval (which shall not
be unreasonably withheld), which shall be given or subsequently confirmed in
writing. Except as otherwise required by law, if the Financial Advisor resigns
its appointment or is terminated prior to the dissemination of any such document
or other release or communication, no reference shall be made therein to the
Financial Advisor without the Financial Advisor's prior written permission; and
(b) In connection with the Financial Advisor's activities hereunder, the
Company agrees to furnish the Financial Advisor with all information concerning
the Company that the Financial Advisor reasonably deems appropriate and agrees
to provide the Financial Advisor with appropriate access to the Company's
accountants, counsel, consultants and other appropriate agents and
representatives. The Company acknowledges that the Financial Advisor may rely
upon the completeness and accuracy of information and data furnished to it by
the Company's officers, directors, employees, agents and representatives without
independent verification of such information and data or an appraisal of the
Company's assets.
9. Confidentiality. The parties have executed the Confidentiality
Agreement dated as of April 21, 1998 appearing as Schedule 2 hereto, which is
incorporated herein and made a part hereof.
10. Survival of Certain Provisions; Succession. The compensation and
expense provisions contained in Sections 3 and 4 (subject to Section 5), the
termination and resignation provisions contained in Section 5, the indemnity and
contribution agreements contained in Section 6 and Schedule 1, the
confidentiality provisions contained in Section 9 and Schedule 2, the
representations and warranties of the Company contained in Section 7, Section 8
and this Section 10 shall remain operative and in full force and effect
regardless of (a) any investigation made by or on behalf of the Financial
Advisor or by or on behalf of any affiliate of the Financial Advisor, any
Indemnified Person (as defined in Schedule 1 hereto), or any person controlling
any of them, (b) consummation of the Transaction, or (c) any termination or
expiration of this Agreement or the Financial Advisor's services under this
Agreement or resignation of the Financial Advisor, and this Agreement shall be
binding upon, and shall inure to the benefit of, any successors, assigns, heirs
and personal representatives of the Company, the Financial Advisor, the
Indemnified Persons and any such person.
11. Notices. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and shall be mailed or delivered (which shall
include telephone line facsimile
3
transmission) to the Company at the address set forth on the first page of this
Agreement or at the following telephone line facsimile transmission number (212)
645-2054, as the case may be, and to the Financial Advisor at 745 Fifth Avenue,
Suite 3001, New York, New York 10151, or at the following telephone line
facsimile line transmission number: (212) 751-5757, as the case may be, in
either case with a copy to Law Offices of Brian W Pusch, Penthouse Suite, 29
West 57th Street, New York, New York 10019 (telephone line facsimile
transmission number (212) 980-7055). Any such notice shall be effective upon
receipt.
12. Construction. This Agreement incorporates the entire understanding of
the parties and supersedes all previous agreements with respect to the subject
matter hereof and shall be governed by, and construed in accordance with, the
laws of the State of New York as applied to contracts made and performed wholly
in the State of New York, without regard to principles of conflict of laws.
13. Severability. Any determination that any provision of this Agreement
may be, or is, unenforceable shall not affect the enforceability of the
remainder of this Agreement.
14. Headings. The section headings in this Agreement have been inserted as
a matter of convenience for reference and are not an effective part of this
Agreement.
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
16. Third Party Beneficiaries. This Agreement has been and is made solely
for the benefit of the Company, the Financial Advisor and the other Indemnified
Persons referred to in Section 6 hereof and their respective successors and
permitted assigns, and no other person shall acquire or have any right under or
by virtue of this Agreement.
17. Succession; Assignment. This Agreement shall be binding upon and inure
to the benefit of the Company, the Financial Advisor, the Indemnified Persons
and their respective successors, permitted assigns, heirs and personal
representatives. No party may assign its rights or obligations under this
Agreement without the prior written consent of the other party to this
Agreement.
l8. Advertisements. The Company agrees that the Financial Advisor and the
Company each shall have the right to place advertisements after the final
closing of the Transaction in financial and other newspapers and journals at its
own expense describing its services to the Company hereunder. The Financial
Advisor shall afford the Company a reasonable opportunity to review the text of
any such advertisement before it is placed and will not include in any such
advertisement any statements to which the Company reasonably objects.
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If the foregoing terms correctly set forth our agreement, please confirm
this by signing and returning the duplicate copy of this letter. Thereupon this
letter, as signed in counterpart, shall constitute our agreement on the subject
matter herein.
DIAZ & ALTSCHUL CAPITAL, LLP
By: /s/ Reinaldo M. Diaz
-----------------------------------
Name: Reinaldo M. Diaz
Authorized Signatory
Confirmed and Agreed to as of the
date first set forth above:
IMCLONE SYSTEMS INCORPORATED
By: /s/ Dr. Harlan Waksal
----------------------------------------
Name: Dr. Harlan Waksal,
Title: Executive Vice President & Chief Operating Officer
5
SCHEDULE 1
This Schedule 1 is a part of and is incorporated into that certain letter
agreement, dated as of July 1, 1998 (the 'Agreement'), by and between ImClone
Systems Incorporated, a Delaware corporation (with its affiliates collectively,
the 'Company'), and Diaz & Altschul Capital, LLC (the 'Financial Advisor').
Capitalized terms used herein and not otherwise defined shall have the
respective meanings provided in the Agreement.
The Company agrees to indemnify and hold harmless the Financial Advisor,
its affiliates, its agents, including without limitation, Hambrecht & Quist
Incorporated, and each person controlling of any of them (within the meaning of
Section 15 of the Securities Act), and the respective members, directors,
officers, agents and employees of the Financial Advisor, its affiliates, such
agents and each such controlling person (the Financial Advisor and each such
entity or person, an 'Indemnified Person') from and against any losses, claims,
damages, judgments, assessments, costs and other liabilities (collectively, the
'Liabilities'), and shall reimburse each Indemnified Person (subject to such
Indemnified Person agreeing to repay such amounts if they are not indemnifiable
hereunder) for all fees and expenses (including the reasonable fees and expenses
of one counsel for all Indemnified Persons, except as otherwise expressly
provided herein) (collectively, the 'Expenses,') as they are incurred by an
Indemnified Person in investigating, preparing, pursuing or defending any claim,
action, proceeding or investigation and whether or not any Indemnified Person is
a party (collectively, the 'Actions'), (i) caused by, or arising out of or in
connection with, any untrue statement or alleged untrue statement of a material
fact contained in any document distributed by the Company to its stockholders or
distributed by any other party to the Transaction to its stockholders or filed
by the Company or any such other party with the Securities and Exchange
Commission or any other federal, state, local or foreign governmental or any
agency or department thereof (the 'Documents') or by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (other than untrue statements or alleged untrue statements in, or
omissions or alleged omissions from, information relating to an Indemnified
Person furnished in writing by or on behalf of such Indemnified Person expressly
for use in any Documents) or (ii) otherwise arising out of or in connection with
advice or services rendered or to be rendered by any Indemnified Person pursuant
to the Agreement, the transactions contemplated thereby or any Indemnified
Person's actions or inactions in connection with any such advice, services or
transactions; provided, however, that, the Company shall not be responsible for
any Liabilities or Expenses of any Indemnified Person pursuant to this clause
(ii) that result from such Indemnified Person's negligence, bad faith, or
willful misconduct in connection with any of the advice, actions, inactions or
services referred to above. The Company also agrees to reimburse each
Indemnified Person (subject to such Indemnified Person agreeing to repay such
amounts if they are determined by final judgement of a court of competent
jurisdiction not to be indemnifiable hereunder) for all Expenses as they are
incurred in connection with enforcing such Indemnified Person's rights under the
Agreement, which includes this Schedule 1.
Upon receipt by an Indemnified Person of actual notice of an Action
against such Indemnified Person with respect to which indemnity may be sought
under the Agreement, such Indemnified Person shall promptly notify the Company
in writing; provided that failure by any
(i)
Indemnified Person so to notify the Company shall not relieve the Company from
any liability which the Company may have on account of this indemnity or
otherwise to such Indemnified Person, except to the extent the Company shall
have been materially prejudiced by such failure.
The Company shall, if requested by the Financial Advisor, assume the
defense of any such Action including the employment of counsel reasonably
satisfactory to the Financial Advisor. Any Indemnified Person shall have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person unless: (i) the Company has failed promptly
to assume the defense and employ counsel or (ii) the named parties to any such
Action (including any impleaded parties) include such Indemnified Person and the
Company, and such Indemnified Person shall have been advised in the reasonable
opinion of counsel that there are one or more legal defenses available to it
which are different from or in addition to those available to the Company;
provided that the Company shall not in such event be responsible hereunder for
the fees and expenses of more than one firm of separate counsel for all
Indemnified Persons in connection with any Action or related Actions, in
addition to any local counsel. The Company shall not be liable for any
settlement of any Action effected without its written consent (which shall not
be unreasonably withheld). In addition, the Company shall not, without the prior
written consent of the Financial Advisor, settle, compromise or consent to the
entry of any judgment in or otherwise seek to terminate any pending or
threatened Action in respect of which indemnification or contribution may be
sought hereunder (whether or not such Indemnified Person is a party thereto)
unless such settlement, compromise, consent or termination includes an
unconditional release of each Indemnified Person from all Liabilities arising
out of such Action. The indemnification required hereby shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as such expense, loss, damage or liability is incurred and is due
and payable.
In the event that the foregoing indemnity is unavailable to an Indemnified
Person other than in accordance with the Agreement, the Company shall contribute
to the Liabilities and Expenses paid or payable by such Indemnified Person in
such proportion as is appropriate to reflect (i) the relative benefits to the
Company, on the one hand, and to the Financial Advisor and any other Indemnified
Person, on the other hand, of the matters contemplated by the Agreement or (ii)
if the allocation provided by the immediately preceding clause is not permitted
by applicable law, not only such relative benefits but also the relative fault
of the Company, on the one hand, and the Financial Advisor and any other
Indemnified Person, on the other hand, in connection with the matters as to
which such Liabilities or Expenses relate, as well as any other relevant
equitable considerations; provided that in no event shall the Company contribute
less than the amount necessary to ensure that all Indemnified Persons, in the
aggregate, are not liable for any Liabilities and Expenses in excess of the
amount of fees actually received by the Financial Advisor pursuant to the
Agreement. For purposes of this paragraph, the relative benefits to the Company,
on the one hand, and to the Financial Advisor on the other hand, of the matters
contemplated by the Agreement shall be deemed to be in the same proportion as
(a) the total value paid or contemplated to be paid to or received or
contemplated to be received by the Company in the transaction or transactions
that are within the scope of the Agreement, whether
(ii)
or not any such transaction is consummated, bears to (b) the fees paid to the
Financial Advisor under the Agreement.
The Company also agrees that no Indemnified Person shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to the
Company for or in connection with advice or services rendered by any Indemnified
Person pursuant to the Agreement, the transactions contemplated thereby or any
Indemnified Person's actions or inactions in connection with any such advice,
service or transactions except that the Financial Advisor may be liable for
Liabilities (and related Expenses) of the Company from such Indemnified Person's
gross negligence, bad faith or willful misconduct in connection with any such
advice, actions, inactions or services.
The reimbursement, indemnity and contribution obligations of the Company
set forth herein shall apply in any modification of the Agreement and shall
remain in full force and effect regardless of any termination of, or the
completion of any Indemnified Person's services under or in connection with, the
Agreement.
(iii)
Schedule 2
CONFIDENTIALITY AGREEMENT
ImClone Systems Incorporated, having a place of business at 180 Varick
Street, New York, New York 10014 (hereinafter called 'ImClone'), and Diaz and
Altschul Capital, LLC, having a place of business at 745 Fifth Avenue, New York,
New York, 10151 (hereinafter called 'Diaz and Altschul') expect to discuss
ImClone scientific and business information in connection with representation by
Diaz and Altschul of ImClone (hereinafter called 'Technology'). For such a
discussion to take place, information that may be proprietary may be disclosed
by ImClone to Diaz and Altschul. For the purpose of enabling ImClone and Diaz
and Altschul (hereinafter, collectively, 'the Parties') to hold the discussion
described above, Diaz and Altschul agrees to receive, and ImClone agrees to
disclose, proprietary information on the following terms and conditions:
1. For the purpose hereof, the term 'Proprietary Information' shall mean
all information relating to Technology that is identified by ImClone as being
confidential, and that is disclosed to Diaz and Altschul by ImClone. Proprietary
Information includes, but is not limited to, information relating to science,
finance, business, intellectual property, and law. Proprietary Information does
not include information that (i) is in the public domain at the time of
disclosure; (ii) is in the possession of Diaz and Altschul prior to the time of
disclosure from sources unconnected with ImClone, as evidenced by written
records; (iii) after disclosure, enters the public domain through no act or
omission of Diaz and Altschul; (iv) after disclosure, is received by Diaz and
Altschul from a third party, unless the third party is not entitled to transfer
the information to Diaz and Altschul; (v) that Diaz and Altschul is required to
disclose by applicable law, rule or regulation, provided that in such case Diaz
and Altschul shall provide ImClone with reasonable notice to allow ImClone to
contest such stated requirement.
2. Diaz and Altschul shall treat each item of Proprietary Information as
confidential for a period of three (3) years from the date of receipt of each
item, and shall not use such Proprietary Information for any purpose other than
that described above. To treat as confidential shall mean that Diaz and Altschul
will not disclose Proprietary Information to any third party without the prior
written consent of ImClone, and will take the same precautions to prevent the
unauthorized disclosure of Proprietary
Information to third parties that it takes to prevent the unauthorized
disclosure of its own confidential information.
3. Diaz and Altschul shall restrict the communication of Proprietary
Information to its employees and representatives who need to know to the extent
necessary for the purpose hereof.
4. Each authorized employee or representative to whom any Proprietary
Information is communicated or given shall be informed that the information is
confidential and proprietary and shall agree not to disclose or give the
information to others.
5. Each authorized employee or representative to whom any Proprietary
Information is communicated or given shall agree not to use any of said
information except for the purpose of permitting Diaz and Altschul and ImClone
to enter into the discussion contemplated hereunder.
6. Notwithstanding the foregoing, nothing contained in this agreement
shall be construed as creating an express or implied license to practice
Proprietary Information.
7. This Confidentiality Agreement shall be interpreted in accordance with
the laws of the State of New York.
8. This Agreement is intended by the Parties hereto as the final
expression of their understanding and is the complete and exclusive statement of
the terms hereof notwithstanding any oral representations or statements to the
contrary heretofore made. This Agreement contains all of the representations and
under-standings between the Parties hereto. No modifications of this Agreement
or waiver of the terms and conditions hereof shall be binding upon either party
unless approved in writing by an authorized representative of both Parties or
shall be effected by the acknowledgment of acceptance of any forms containing
other or different terms and conditions whether or not signed by an authorized
representative of one of the Parties. No modification or release shall be
effective unless in writing signed by the Parties.
IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be
executed by their duly authorized officers.
IMCLONE SYSTEMS INCORPORATED
By: /s/ John B. Landes
-------------------------------------
Print: John B. Landes
Title: Vice President
General Counsel
Date:
DIAZ AND ALTSCHUL CAPITAL, LLC
By: /s/ Reinaldo M. Diaz
-------------------------------------
Print: Reinaldo M. Diaz
Title:
Date: 4/21/98
AGREE\D&A.CDA
DIAZ & ALTSCHUL
CAPITAL, LLC
As of September 30, 1998
ImClone Systems Incorporated
180 Varick Street
New York, New York 10014
Attention: Dr. Harlan Waksal
Dear Sir:
RE: Engagement Agreement Amendment
We refer to the engagement agreement (the 'Engagement Agreement'), dated
July 1, 1998, between ImClone Systems Incorporated (the 'Company') and Diaz & Altschul Capital, LLC (the 'Financial Advisor'). The Engagement Agreement
contemplated a transaction involving a purchase directly from the Company or
from the Company's shareholders of not less than 20% of the Company's common
stock ($.001 par value) (the 'Common Stock') outstanding after the Transaction,
as defined in the Engagement Agreement, or securities convertible into not less
that 20% of the Company's Common Stock outstanding after the Transaction, as
defined in the Engagement Agreement. Subsequent to the execution of the
Engagement Agreement, the parties have determined to broaden the types of
business arrangements under consideration. This Engagement Agreement amendment
(the 'Engagement Agreement Amendment') shall confirm our understanding of the
modification of the Engagement Agreement between the Company and the Financial
Advisor.
Licensing Agreement. The defined term Transaction is hereby modified to
include the term Licensing Agreement, which is defined as a corporate
collaboration and development agreement between the Company and a partner (the
'Partner') that contemplates all, or any of, the following:
(a) the grant of a license to the Partner in certain territories of the
Company's intellectual property covering the product candidate C225 Cancer
Therapeutic ('C225'),
(b) certain payments to the Company, either through cash payments or the
purchase of the Company's Common Stock, upon the completion of certain events
related to the clinical development of C225,
745 FIFTH AVENUE SUITE 3001 NEW YORK, NY 10151
PHONE 212.751.1011 FAX 212.751.5757
MEMBER-NASD
(c) an agreement for the Company to exclusively supply C225 to the Partner
for use in clinical studies and commercial sales, if any,
(d) a royalty payable to the Company from the Partner based on future
sales of C225, if any, or
(e) an agreement that the Partner shall provide a guarantee of a line of
credit to the Company for a new manufacturing facility or a direct loan from the
Partner to the Company for such manufacturing facility.
Compensation. In addition to the compensation provided in the Engagement
Agreement, the Financial Advisor shall be entitled to compensation for services
in connection with a Transaction involving a Licensing Agreement equal to
$200,000 (the 'Licensing Agreement Fee'). The Licensing Agreement Fee shall be
payable $50,000 upon execution of this Agreement, and $50,000 on each of April
1, 1999, July 1, 1999 and October 1, 1999.
The Retainer Fee under Section 3(a) of the Engagement Agreement has been
paid through December 31, 1998. The parties acknowledge that the Retainer Fee
shall be suspended until such time as the Company gives written notice to the
Financial Advisor that it is to be reinstated.
If this letter correctly sets forth the Company's understanding, please
sign a copy of this letter in the space provided below and return it to the
Financial Advisor, whereupon this letter shall become a binding agreement under
the laws of the State of New York and the Engagement Agreement shall be amended
hereby. Except as amended hereby, the Engagement Agreement shall remain in full
force and effect.
DIAZ & ALTSCHUL CAPITAL, LLP
By: /s/ Arthur G. Altschul, Jr.
-------------------------------
Name: Arthur G. Altschul, Jr.
Authorized Signatory
Confirmed and Agreed to as of the
date first set forth above:
IMCLONE SYSTEMS INCORPORATED
By: /s/ John B. Landes
----------------------------------
John B. Landes, Vice President, Business Development
and General Counsel
2
Engagement Agreement - ImClone Systems Inc. and Diaz & Altschul Capital LLC
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