{"id":42267,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/engagement-agreement-imclone-systems-inc-and-diaz-amp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"engagement-agreement-imclone-systems-inc-and-diaz-amp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/engagement-agreement-imclone-systems-inc-and-diaz-amp.html","title":{"rendered":"Engagement Agreement &#8211; ImClone Systems Inc. and Diaz &#038; Altschul Capital LLC"},"content":{"rendered":"<pre>\n\nDIAZ &amp; ALTSCHUL\n       CAPITAL, LLC\n\n\n                                                        July 1, 1998\n\nImClone Systems Incorporated\n180 Varick Street\nNew York, New York 10014\n\nAttention: Dr. Harlan Waksal\n\nDear Sir:\n\n                              Engagement Agreement\n\n      This  letter  agreement  (this  'Agreement')  confirms  the  understanding\nbetween  ImClone  Systems   Incorporated,   a  Delaware  corporation  (with  its\naffiliates collectively,  the 'Company'),  and Diaz &amp; Altschul Capital, LLC (the\n'Financial  Advisor'),  pursuant to which the Company has retained the Financial\nAdvisor  to  render  certain  financial  advisory  services  to the  Company  in\nconnection with a currently contemplated  transaction,  on the terms and subject\nto the conditions set forth herein,  in connection with the matters  referred to\nherein.\n\n      1. Retention.  The Company hereby retains the Financial  Advisor to assist\nthe Company in analyzing,  structuring,  negotiating, and effecting the proposed\nTransaction on the terms and conditions of this  Agreement.  If requested by the\nCompany,  the Financial Advisor will render an opinion, as to whether or not the\nTransaction is fair, from a financial point of view, to the  stockholders of the\nCompany. If an opinion is requested,  the Company and the Financial Advisor will\nenter into a separate agreement  containing customary terms and conditions to be\nmutually  agreed  upon.  The  parties  acknowledge  that such an opinion  may be\nrequested  from a third party.  In addition,  the parties  acknowledge  that the\nFinancial Advisor might retain Hambrecht &amp; Quist Incorporated  ('H&amp;Q') to assist\nthe  Financial  Advisor  in  rendering  its  services  under this  Agreement  in\nconnection  with  the  Transaction.  In  connection  with  such  retention,  the\nFinancial  Advisor shall be solely  responsible for any compensation  payable to\nH&amp;Q in connection with the Transaction\n\n      2. Transaction.  As used in this Agreement,  the term 'Transaction'  means\nthe  currently  contemplated  purchase  directly  from the  Company  or from the\nCompany's shareholders of not less than 20% of the Company's common stock ($.001\npar value) (the 'Common Stock') outstanding after the Transaction, or securities\nconvertible  into not less that 20% of the  Company's  Common Stock  outstanding\nafter the Transaction.  The parties acknowledge that the Transaction is separate\nand  apart  from  subsequent  purchases  that  may  occur  making  up  a  larger\ntransaction.\n\n                 745 FIFTH AVENUE SUITE 3001 NEW YORK, NY 10151\n                      PHONE 212.751.1011 FAX 212.751.5757\n\n                                   MEMBER-NASD\n\n\n\n\n      3.  Compensation.  As compensation  for the Financial  Advisor's  services\nhereunder, the Company agrees to pay the Financial Advisor the following fees:\n\n      (a)   a retainer fee of $35,000 per month (the  'Retainer  Fee'),  payable\n            monthly in advance,  commencing on July 1, 1998 and terminating upon\n            the earlier of the closing of the  Transaction  or the date that the\n            Company notifies the Financial  Advisor that it no longer intends to\n            pursue the Transaction which amount shall be creditable  against the\n            Transaction Fee set forth in (b) below, and\n\n      (b)   a fee (the  'Transaction  Fee')  equal to .75% of the  consideration\n            paid in the Transaction\n\n      4. Expenses.  Whether or not any  Transaction is agreed to or consummated,\nthe Company agrees to reimburse the Financial Advisor, upon request from time to\ntime, for its reasonable  out-of-pocket expenses,  including the reasonable fees\nand expenses of its legal counsel and any agents or experts that may be retained\nby the Financial  Advisor,  incurred in connection  with the services  performed\nhereunder  and  the  other  advisory  and  capital   raising   assignments   and\ntransactions for which the Financial  Advisor has performed  financial  advisory\nservices to the Company;  provided however, that such reimbursable expenses will\nnot exceed in the aggregate $35,000 without the consent of the Company.\n\n      5. Termination or Resignation.  Subject to Section 8 hereof, the Financial\nAdvisor  shall have the right at any time during the term of this  Agreement  to\nresign on ten days' prior written notice and the Company shall have the right at\nany time during the term of this Agreement to terminate the Financial  Advisor's\nservices under this Agreement for any reason on ten days' prior written  notice.\nIf the Company  terminates  the Financial  Advisor's  services  hereunder at any\ntime, with respect to the consummation of the Transaction within 12 months after\nsuch termination,  the Financial Advisor shall be entitled to receive all of the\namounts  payable  pursuant  to  Section 3 hereof as if the  Financial  Advisor's\nservices had not been terminated.\n\n      6.  Indemnity.  As the Financial  Advisor shall be acting on behalf of the\nCompany,  the Company  agrees to indemnify the  Financial  Advisor and the other\nIndemnified  Persons as set forth in  Schedule 1 hereto,  which is  incorporated\nherein and made a part hereof.\n\n      7.  Representations and Warranties of Company.  The Company represents and\nwarrants as follows:  \n\n      (a) This  Agreement  has been duly  authorized  and validly  executed  and\ndelivered by the Company and constitutes a legal, valid and binding agreement of\nthe Company enforceable against the Company in accordance with its terms.\n\n      (b) Any  information  provided to the Financial  Advisor by the Company in\nconnection with the Transaction,  or any document  distributed by the Company to\nits  stockholders  or filed by the  Company  with the  Securities  and  Exchange\nCommission  or any other  federal,  \n\n\n                                       2\n\n\nstate,  local or foreign government or any agency or department thereof will not\ncontain  any untrue  statements  of a material  fact or omit to state  therein a\nmaterial  fact  necessary  to make  the  statements  therein,  in  light  of the\ncircumstances under which they were made, not misleading.\n\n      8. Further Covenants of the Company. The Company agrees as follows:\n\n      (a) The Company  agrees  that,  except as  otherwise  required by law, any\nreference to the Financial  Advisor or any affiliate of the Financial Advisor in\nany  document,  or any other release or  communication  to any party outside the\nCompany,  is subject to the Financial  Advisor's prior approval (which shall not\nbe unreasonably  withheld),  which shall be given or  subsequently  confirmed in\nwriting.  Except as otherwise  required by law, if the Financial Advisor resigns\nits appointment or is terminated prior to the dissemination of any such document\nor other  release or  communication,  no reference  shall be made therein to the\nFinancial Advisor without the Financial Advisor's prior written permission; and\n\n      (b) In connection with the Financial Advisor's activities  hereunder,  the\nCompany agrees to furnish the Financial Advisor with all information  concerning\nthe Company that the Financial  Advisor  reasonably deems appropriate and agrees\nto provide  the  Financial  Advisor  with  appropriate  access to the  Company's\naccountants,   counsel,   consultants   and   other   appropriate   agents   and\nrepresentatives.  The Company  acknowledges  that the Financial Advisor may rely\nupon the  completeness  and accuracy of information  and data furnished to it by\nthe Company's officers, directors, employees, agents and representatives without\nindependent  verification  of such  information  and data or an appraisal of the\nCompany's assets.\n\n      9.   Confidentiality.   The  parties  have  executed  the  Confidentiality\nAgreement  dated as of April 21, 1998  appearing as Schedule 2 hereto,  which is\nincorporated herein and made a part hereof.\n\n      10.  Survival of Certain  Provisions;  Succession.  The  compensation  and\nexpense  provisions  contained  in  Sections 3 and 4 (subject to Section 5), the\ntermination and resignation provisions contained in Section 5, the indemnity and\ncontribution   agreements   contained   in  Section  6  and   Schedule   1,  the\nconfidentiality   provisions   contained  in  Section  9  and  Schedule  2,  the\nrepresentations  and warranties of the Company contained in Section 7, Section 8\nand  this  Section  10 shall  remain  operative  and in full  force  and  effect\nregardless  of (a) any  investigation  made  by or on  behalf  of the  Financial\nAdvisor  or by or on behalf  of any  affiliate  of the  Financial  Advisor,  any\nIndemnified Person (as defined in Schedule 1 hereto),  or any person controlling\nany of them, (b)  consummation  of the  Transaction,  or (c) any  termination or\nexpiration of this  Agreement or the  Financial  Advisor's  services  under this\nAgreement or resignation of the Financial  Advisor,  and this Agreement shall be\nbinding upon, and shall inure to the benefit of, any successors,  assigns, heirs\nand  personal  representatives  of  the  Company,  the  Financial  Advisor,  the\nIndemnified Persons and any such person.\n\n      11.  Notices.  Notice  given  pursuant  to any of the  provisions  of this\nAgreement  shall be in writing  and shall be mailed or  delivered  (which  shall\ninclude telephone line facsimile \n\n\n                                       3\n\n\ntransmission)  to the Company at the address set forth on the first page of this\nAgreement or at the following telephone line facsimile transmission number (212)\n645-2054,  as the case may be, and to the Financial Advisor at 745 Fifth Avenue,\nSuite  3001,  New York,  New York  10151,  or at the  following  telephone  line\nfacsimile  line  transmission  number:  (212)  751-5757,  as the case may be, in\neither case with a copy to Law  Offices of Brian W Pusch,  Penthouse  Suite,  29\nWest  57th  Street,   New  York,  New  York  10019   (telephone  line  facsimile\ntransmission  number (212)  980-7055).  Any such notice shall be effective  upon\nreceipt.\n\n      12. Construction.  This Agreement incorporates the entire understanding of\nthe parties and supersedes all previous  agreements  with respect to the subject\nmatter hereof and shall be governed by, and construed in  accordance  with,  the\nlaws of the State of New York as applied to contracts made and performed  wholly\nin the State of New York, without regard to principles of conflict of laws.\n\n      13.  Severability.  Any determination that any provision of this Agreement\nmay  be,  or is,  unenforceable  shall  not  affect  the  enforceability  of the\nremainder of this Agreement.\n\n      14. Headings. The section headings in this Agreement have been inserted as\na matter of  convenience  for  reference  and are not an effective  part of this\nAgreement.\n\n      15.  Counterparts.   This  Agreement  may  be  executed  in  two  or  more\ncounterparts,  each of which shall be deemed an original, but all of which shall\nconstitute one and the same instrument.\n\n      16. Third Party Beneficiaries.  This Agreement has been and is made solely\nfor the benefit of the Company,  the Financial Advisor and the other Indemnified\nPersons  referred  to in Section 6 hereof and their  respective  successors  and\npermitted assigns,  and no other person shall acquire or have any right under or\nby virtue of this Agreement.\n\n      17. Succession; Assignment. This Agreement shall be binding upon and inure\nto the benefit of the Company,  the Financial Advisor,  the Indemnified  Persons\nand  their  respective   successors,   permitted  assigns,  heirs  and  personal\nrepresentatives.  No party may  assign  its  rights or  obligations  under  this\nAgreement  without  the  prior  written  consent  of the  other  party  to  this\nAgreement.\n\n      l8. Advertisements.  The Company agrees that the Financial Advisor and the\nCompany  each  shall  have the  right to place  advertisements  after  the final\nclosing of the Transaction in financial and other newspapers and journals at its\nown expense  describing  its services to the Company  hereunder.  The  Financial\nAdvisor shall afford the Company a reasonable  opportunity to review the text of\nany such  advertisement  before it is placed  and will not  include  in any such\nadvertisement any statements to which the Company reasonably objects.\n\n\n                                       4\n\n\n      If the foregoing terms  correctly set forth our agreement,  please confirm\nthis by signing and returning the duplicate copy of this letter.  Thereupon this\nletter, as signed in counterpart,  shall constitute our agreement on the subject\nmatter herein.\n\n                                             DIAZ &amp; ALTSCHUL CAPITAL, LLP\n\n                                             By: \/s\/ Reinaldo M. Diaz\n                                             -----------------------------------\n                                             Name: Reinaldo M. Diaz\n                                             Authorized Signatory\n\nConfirmed and Agreed to as of the \ndate first set forth above:\n\nIMCLONE SYSTEMS INCORPORATED\n\nBy: \/s\/ Dr. Harlan Waksal\n----------------------------------------\nName: Dr. Harlan Waksal,\nTitle: Executive Vice President &amp; Chief Operating Officer\n\n\n                                       5\n\n\n                                                                      SCHEDULE 1\n\n      This Schedule 1 is a part of and is incorporated  into that certain letter\nagreement,  dated as of July 1, 1998 (the  'Agreement'),  by and between ImClone\nSystems Incorporated,  a Delaware corporation (with its affiliates collectively,\nthe 'Company'),  and Diaz &amp; Altschul  Capital,  LLC (the  'Financial  Advisor').\nCapitalized  terms  used  herein  and  not  otherwise  defined  shall  have  the\nrespective meanings provided in the Agreement.\n\n      The Company  agrees to indemnify and hold harmless the Financial  Advisor,\nits affiliates,  its agents,  including  without  limitation,  Hambrecht &amp; Quist\nIncorporated,  and each person controlling of any of them (within the meaning of\nSection  15 of the  Securities  Act),  and the  respective  members,  directors,\nofficers,  agents and employees of the Financial Advisor,  its affiliates,  such\nagents and each such  controlling  person (the  Financial  Advisor and each such\nentity or person, an 'Indemnified Person') from and against any losses,  claims,\ndamages, judgments,  assessments, costs and other liabilities (collectively, the\n'Liabilities'),  and shall  reimburse each  Indemnified  Person (subject to such\nIndemnified  Person agreeing to repay such amounts if they are not indemnifiable\nhereunder) for all fees and expenses (including the reasonable fees and expenses\nof one  counsel  for all  Indemnified  Persons,  except as  otherwise  expressly\nprovided  herein)  (collectively,  the  'Expenses,')  as they are incurred by an\nIndemnified Person in investigating, preparing, pursuing or defending any claim,\naction, proceeding or investigation and whether or not any Indemnified Person is\na party  (collectively,  the 'Actions'),  (i) caused by, or arising out of or in\nconnection  with, any untrue statement or alleged untrue statement of a material\nfact contained in any document distributed by the Company to its stockholders or\ndistributed by any other party to the  Transaction to its  stockholders or filed\nby the  Company  or any such  other  party  with  the  Securities  and  Exchange\nCommission or any other federal,  state,  local or foreign  governmental  or any\nagency or  department  thereof (the  'Documents')  or by any omission or alleged\nomission  to state  therein a material  fact  necessary  to make the  statements\ntherein,  in  light  of the  circumstances  under  which  they  were  made,  not\nmisleading  (other than untrue  statements or alleged  untrue  statements in, or\nomissions or alleged  omissions  from,  information  relating to an  Indemnified\nPerson furnished in writing by or on behalf of such Indemnified Person expressly\nfor use in any Documents) or (ii) otherwise arising out of or in connection with\nadvice or services rendered or to be rendered by any Indemnified Person pursuant\nto the  Agreement,  the  transactions  contemplated  thereby or any  Indemnified\nPerson's  actions or inactions in connection  with any such advice,  services or\ntransactions;  provided, however, that, the Company shall not be responsible for\nany  Liabilities or Expenses of any  Indemnified  Person pursuant to this clause\n(ii) that  result  from such  Indemnified  Person's  negligence,  bad faith,  or\nwillful misconduct in connection with any of the advice,  actions,  inactions or\nservices   referred  to  above.  The  Company  also  agrees  to  reimburse  each\nIndemnified  Person (subject to such  Indemnified  Person agreeing to repay such\namounts  if they are  determined  by  final  judgement  of a court of  competent\njurisdiction  not to be  indemnifiable  hereunder)  for all Expenses as they are\nincurred in connection with enforcing such Indemnified Person's rights under the\nAgreement, which includes this Schedule 1.\n\n      Upon  receipt  by an  Indemnified  Person  of  actual  notice of an Action\nagainst such  Indemnified  Person with respect to which  indemnity may be sought\nunder the Agreement,  such Indemnified  Person shall promptly notify the Company\nin writing; provided that failure by any\n\n\n                                      (i)\n\n\n\nIndemnified  Person so to notify the Company  shall not relieve the Company from\nany  liability  which the  Company  may have on  account  of this  indemnity  or\notherwise to such  Indemnified  Person,  except to the extent the Company  shall\nhave been materially prejudiced by such failure.\n\n      The Company  shall,  if requested  by the  Financial  Advisor,  assume the\ndefense of any such  Action  including  the  employment  of  counsel  reasonably\nsatisfactory to the Financial  Advisor.  Any  Indemnified  Person shall have the\nright to employ  separate  counsel  in any such  action and  participate  in the\ndefense  thereof,  but the fees and  expenses  of such  counsel  shall be at the\nexpense of such Indemnified  Person unless:  (i) the Company has failed promptly\nto assume the defense and employ  counsel or (ii) the named  parties to any such\nAction (including any impleaded parties) include such Indemnified Person and the\nCompany,  and such Indemnified  Person shall have been advised in the reasonable\nopinion of counsel  that there are one or more legal  defenses  available  to it\nwhich are  different  from or in addition  to those  available  to the  Company;\nprovided that the Company shall not in such event be  responsible  hereunder for\nthe  fees  and  expenses  of more  than one  firm of  separate  counsel  for all\nIndemnified  Persons  in  connection  with any  Action or  related  Actions,  in\naddition  to any  local  counsel.  The  Company  shall  not be  liable  for  any\nsettlement of any Action  effected  without its written consent (which shall not\nbe unreasonably withheld). In addition, the Company shall not, without the prior\nwritten consent of the Financial Advisor,  settle,  compromise or consent to the\nentry  of any  judgment  in or  otherwise  seek  to  terminate  any  pending  or\nthreatened  Action in respect of which  indemnification  or contribution  may be\nsought  hereunder  (whether or not such  Indemnified  Person is a party thereto)\nunless  such  settlement,   compromise,   consent  or  termination  includes  an\nunconditional  release of each Indemnified  Person from all Liabilities  arising\nout of  such  Action.  The  indemnification  required  hereby  shall  be made by\nperiodic  payments of the amount thereof during the course of the  investigation\nor defense,  as such expense,  loss,  damage or liability is incurred and is due\nand payable.\n\n      In the event that the foregoing indemnity is unavailable to an Indemnified\nPerson other than in accordance with the Agreement, the Company shall contribute\nto the  Liabilities and Expenses paid or payable by such  Indemnified  Person in\nsuch  proportion as is appropriate  to reflect (i) the relative  benefits to the\nCompany, on the one hand, and to the Financial Advisor and any other Indemnified\nPerson, on the other hand, of the matters  contemplated by the Agreement or (ii)\nif the allocation provided by the immediately  preceding clause is not permitted\nby applicable  law, not only such relative  benefits but also the relative fault\nof the  Company,  on the one  hand,  and the  Financial  Advisor  and any  other\nIndemnified  Person,  on the other hand,  in  connection  with the matters as to\nwhich  such  Liabilities  or  Expenses  relate,  as well as any  other  relevant\nequitable considerations; provided that in no event shall the Company contribute\nless than the amount  necessary to ensure that all Indemnified  Persons,  in the\naggregate,  are not liable for any  Liabilities  and  Expenses  in excess of the\namount of fees  actually  received  by the  Financial  Advisor  pursuant  to the\nAgreement. For purposes of this paragraph, the relative benefits to the Company,\non the one hand, and to the Financial  Advisor on the other hand, of the matters\ncontemplated  by the Agreement  shall be deemed to be in the same  proportion as\n(a)  the  total  value  paid  or  contemplated  to be  paid  to or  received  or\ncontemplated  to be received by the Company in the  transaction or  transactions\nthat are within the scope of the Agreement,  whether \n\n\n                                      (ii)\n\n\n\nor not any such  transaction is  consummated,  bears to (b) the fees paid to the\nFinancial Advisor under the Agreement.\n\n      The  Company  also  agrees  that no  Indemnified  Person  shall  have  any\nliability (whether direct or indirect,  in contract or tort or otherwise) to the\nCompany for or in connection with advice or services rendered by any Indemnified\nPerson pursuant to the Agreement,  the transactions  contemplated thereby or any\nIndemnified  Person's  actions or inactions in connection  with any such advice,\nservice or  transactions  except  that the  Financial  Advisor may be liable for\nLiabilities (and related Expenses) of the Company from such Indemnified Person's\ngross  negligence,  bad faith or willful  misconduct in connection with any such\nadvice, actions, inactions or services.\n\n      The reimbursement,  indemnity and contribution  obligations of the Company\nset forth  herein shall apply in any  modification  of the  Agreement  and shall\nremain  in full  force  and  effect  regardless  of any  termination  of, or the\ncompletion of any Indemnified Person's services under or in connection with, the\nAgreement.\n\n\n                                     (iii)\n\n\n\n                                                                      Schedule 2\n\n                            CONFIDENTIALITY AGREEMENT\n\n      ImClone Systems Incorporated, having a place of business at 180 Varick\nStreet, New York, New York 10014 (hereinafter called 'ImClone'), and Diaz and\nAltschul Capital, LLC, having a place of business at 745 Fifth Avenue, New York,\nNew York, 10151 (hereinafter called 'Diaz and Altschul') expect to discuss\nImClone scientific and business information in connection with representation by\nDiaz and Altschul of ImClone (hereinafter called 'Technology'). For such a\ndiscussion to take place, information that may be proprietary may be disclosed\nby ImClone to Diaz and Altschul. For the purpose of enabling ImClone and Diaz\nand Altschul (hereinafter, collectively, 'the Parties') to hold the discussion\ndescribed above, Diaz and Altschul agrees to receive, and ImClone agrees to\ndisclose, proprietary information on the following terms and conditions:\n\n      1. For the purpose hereof, the term 'Proprietary Information' shall mean\nall information relating to Technology that is identified by ImClone as being\nconfidential, and that is disclosed to Diaz and Altschul by ImClone. Proprietary\nInformation includes, but is not limited to, information relating to science,\nfinance, business, intellectual property, and law. Proprietary Information does\nnot include information that (i) is in the public domain at the time of\ndisclosure; (ii) is in the possession of Diaz and Altschul prior to the time of\ndisclosure from sources unconnected with ImClone, as evidenced by written\nrecords; (iii) after disclosure, enters the public domain through no act or\nomission of Diaz and Altschul; (iv) after disclosure, is received by Diaz and\nAltschul from a third party, unless the third party is not entitled to transfer\nthe information to Diaz and Altschul; (v) that Diaz and Altschul is required to\ndisclose by applicable law, rule or regulation, provided that in such case Diaz\nand Altschul shall provide ImClone with reasonable notice to allow ImClone to\ncontest such stated requirement.\n\n      2. Diaz and Altschul shall treat each item of Proprietary Information as\nconfidential for a period of three (3) years from the date of receipt of each\nitem, and shall not use such Proprietary Information for any purpose other than\nthat described above. To treat as confidential shall mean that Diaz and Altschul\nwill not disclose Proprietary Information to any third party without the prior\nwritten consent of ImClone, and will take the same precautions to prevent the\nunauthorized disclosure of Proprietary\n\n\n\n\nInformation to third parties that it takes to prevent the unauthorized\ndisclosure of its own confidential information.\n\n      3. Diaz and Altschul shall restrict the communication of Proprietary\nInformation to its employees and representatives who need to know to the extent\nnecessary for the purpose hereof.\n\n      4. Each authorized employee or representative to whom any Proprietary\nInformation is communicated or given shall be informed that the information is\nconfidential and proprietary and shall agree not to disclose or give the\ninformation to others.\n\n      5. Each authorized employee or representative to whom any Proprietary\nInformation is communicated or given shall agree not to use any of said\ninformation except for the purpose of permitting Diaz and Altschul and ImClone\nto enter into the discussion contemplated hereunder.\n\n      6. Notwithstanding the foregoing, nothing contained in this agreement\nshall be construed as creating an express or implied license to practice\nProprietary Information.\n\n      7. This Confidentiality Agreement shall be interpreted in accordance with\nthe laws of the State of New York.\n\n      8. This Agreement is intended by the Parties hereto as the final\nexpression of their understanding and is the complete and exclusive statement of\nthe terms hereof notwithstanding any oral representations or statements to the\ncontrary heretofore made. This Agreement contains all of the representations and\nunder-standings between the Parties hereto. No modifications of this Agreement\nor waiver of the terms and conditions hereof shall be binding upon either party\nunless approved in writing by an authorized representative of both Parties or\nshall be effected by the acknowledgment of acceptance of any forms containing\nother or different terms and conditions whether or not signed by an authorized\nrepresentative of one of the Parties. No modification or release shall be\neffective unless in writing signed by the Parties.\n\n\n\n\n      IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be\nexecuted by their duly authorized officers.\n\nIMCLONE SYSTEMS INCORPORATED\n\nBy: \/s\/ John B. Landes\n-------------------------------------\nPrint: John B. Landes\nTitle: Vice President\n       General Counsel\nDate:\n\nDIAZ AND ALTSCHUL CAPITAL, LLC\nBy: \/s\/ Reinaldo M. Diaz\n-------------------------------------\nPrint: Reinaldo M. Diaz\nTitle:\nDate: 4\/21\/98\n\nAGREE\\D&amp;A.CDA\n\n\n\n\nDIAZ &amp; ALTSCHUL\n       CAPITAL, LLC\n\n                                                        As of September 30, 1998\n\nImClone Systems Incorporated\n180 Varick Street\nNew York, New York 10014\n\nAttention: Dr. Harlan Waksal\n\nDear Sir:\n\n      RE: Engagement Agreement Amendment\n\n      We refer to the engagement agreement (the 'Engagement  Agreement'),  dated\nJuly 1, 1998,  between ImClone Systems  Incorporated  (the 'Company') and Diaz &amp; Altschul  Capital,  LLC (the  'Financial  Advisor').  The  Engagement  Agreement\ncontemplated  a  transaction  involving a purchase  directly from the Company or\nfrom the Company's  shareholders  of not less than 20% of the  Company's  common\nstock ($.001 par value) (the 'Common Stock')  outstanding after the Transaction,\nas defined in the Engagement Agreement,  or securities convertible into not less\nthat 20% of the Company's Common Stock  outstanding  after the  Transaction,  as\ndefined  in  the  Engagement  Agreement.  Subsequent  to  the  execution  of the\nEngagement  Agreement,  the  parties  have  determined  to broaden  the types of\nbusiness  arrangements under consideration.  This Engagement Agreement amendment\n(the 'Engagement  Agreement  Amendment')  shall confirm our understanding of the\nmodification of the Engagement  Agreement  between the Company and the Financial\nAdvisor.\n\n      Licensing  Agreement.  The defined term  Transaction is hereby modified to\ninclude  the  term  Licensing  Agreement,   which  is  defined  as  a  corporate\ncollaboration  and development  agreement between the Company and a partner (the\n'Partner') that contemplates all, or any of, the following:\n\n      (a) the grant of a license to the  Partner in certain  territories  of the\nCompany's  intellectual  property  covering  the product  candidate  C225 Cancer\nTherapeutic ('C225'),\n\n      (b) certain  payments to the Company,  either through cash payments or the\npurchase of the Company's  Common Stock,  upon the  completion of certain events\nrelated to the clinical development of C225,\n\n                 745 FIFTH AVENUE SUITE 3001 NEW YORK, NY 10151\n                      PHONE 212.751.1011 FAX 212.751.5757\n\n                                   MEMBER-NASD\n\n\n\n      (c) an agreement for the Company to exclusively supply C225 to the Partner\nfor use in clinical studies and commercial sales, if any,\n\n      (d) a royalty  payable to the  Company  from the  Partner  based on future\nsales of C225, if any, or\n\n      (e) an agreement  that the Partner  shall provide a guarantee of a line of\ncredit to the Company for a new manufacturing facility or a direct loan from the\nPartner to the Company for such manufacturing facility.\n\n      Compensation.  In addition to the compensation  provided in the Engagement\nAgreement,  the Financial Advisor shall be entitled to compensation for services\nin  connection  with a  Transaction  involving  a Licensing  Agreement  equal to\n$200,000 (the 'Licensing  Agreement Fee'). The Licensing  Agreement Fee shall be\npayable $50,000 upon execution of this  Agreement,  and $50,000 on each of April\n1, 1999, July 1, 1999 and October 1, 1999.\n\n      The Retainer Fee under Section 3(a) of the  Engagement  Agreement has been\npaid through  December 31, 1998. The parties  acknowledge  that the Retainer Fee\nshall be suspended  until such time as the Company gives  written  notice to the\nFinancial Advisor that it is to be reinstated.\n\n      If this letter  correctly sets forth the Company's  understanding,  please\nsign a copy of this  letter in the  space  provided  below and  return it to the\nFinancial Advisor,  whereupon this letter shall become a binding agreement under\nthe laws of the State of New York and the Engagement  Agreement shall be amended\nhereby.  Except as amended hereby, the Engagement Agreement shall remain in full\nforce and effect.\n\n                                                 DIAZ &amp; ALTSCHUL CAPITAL, LLP\n\n                                                 By: \/s\/ Arthur G. Altschul, Jr.\n                                                 -------------------------------\n                                                 Name: Arthur G. Altschul, Jr.\n                                                 Authorized Signatory\n\nConfirmed and Agreed to as of the \ndate first set forth above:\n\nIMCLONE SYSTEMS INCORPORATED\n\nBy: \/s\/ John B. Landes\n----------------------------------\nJohn B. Landes, Vice President, Business Development\nand General Counsel\n\n\n                                       2\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7835],"corporate_contracts_industries":[9405],"corporate_contracts_types":[9613,9620],"class_list":["post-42267","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-imclone-inc","corporate_contracts_industries-drugs__biotech","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42267","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42267"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42267"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42267"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42267"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}