Engagement Agreement - Delcath Systems Inc. and Redington inc.
Redington, Inc.
Engagement Agreement
Delcath Systems, Inc.
FIVE PAGES IN ALL
DELCATH SYSTEMS, INC. ("CLIENT") HAS ENGAGED REDINGTON, INC.("REDINGTON"), A
CONNECTICUT CORPORATION, TO PERFORM CERTAIN INVESTOR RELATIONS SERVICES OUTLINED
BELOW BETWEEN NOVEMBER 1, 2000 AND OCTOBER 31, 2001 AND WHICH MAY BE AGREED FROM
TIME TO TIME IN THE FUTURE BY BOTH PARTIES.
REDINGTON WILL IMPLEMENT THE FOLLOWING PROGRAMS AND ACTIVITIES WHICH ARE MORE
FULLY DESCRIBED IN THE SHEET ENTITLED "PROGRAM ELEMENTS" ATTACHED HERETO AS
EXHIBIT A:
1. Production and distribution of Delcath At A Glance.
2. Outbound/Inbound contacts in the total amount of 600 hours by the
Redington Investor Contact Unit (ICU) to the Redington Retail Database
over the 12-month program period with a planned utilization of 100-125
hours monthly during the first three months of the program.
3. Advise on Delcath investor presentation; revise road show deck.
4. Staging of investor road shows in twelve US markets.
5. Editing of corporate news release during program period.
6. Senior staff services as budgeted for above items 2, 3, 5 and counseling
and advice on all investor/financial communications programs and issues
during program period.
AGENCY PROFESSIONAL SERVICES:
COSTS FOR ON-GOING AGENCY PROFESSIONAL SERVICES TOTAL $52,000, AND COSTS FOR
SERVICES FOR SPECIAL PROJECTS TOTAL $68,000, OR A TOTAL OF $120,000 AS FOLLOWS:
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1. $36,000 for Redington Investor Contact Unit (ICU) outbound/inbound
broker contract program; average 50 hours monthly (total 600 hours) at
$000/hr. vs. normal rate of $125/hr.
2. $16,000 for 00 hours program management, counseling, client meetings,
reports, correspondence, editing of news releases, billed at $000/hr vs.
normal rate of $250/hr.
3. $60,000 for audience development, logistical staging and on-site
management of twelve market road shows.
4. $8,000 for research, writing, editing, production supervision of Delcath
At A Glance.
AGENCY SERVICES FOR SENIOR STAFF AND ICU (#1 AND #2 ABOVE) ARE BILLED IN ADVANCE
MONTHLY ($4,333) AND AGENCY SERVICES FOR SPECIAL PROJECTS (#3 AND #4) ARE BILLED
ONE-HALF IN ADVANCE AND ONE-HALF ON COMPLETION. STATE SALES TAXES MAY APPLY TO
THESE CHARGES.
OUT-OF-POCKET DISBURSEMENTS:
For the 12 month period in the following approximate categories and allocations:
Typesetting/Printing At A Glances $ 6,500
Mail AAGs/Kits/Invites 8,000
Meeting Hospitality/AV 12 Mtgs/$2,500 Avg. Ea. 30,000
Long Distance Telephone - Meetings 4,200
Long Distance Telephone - Ongoing 4,800
FAX/FAX Broadcast 4,500
FedEx 2,500
Agency Travel 6,500
Contingencies 6,000
Total Disbursements: $73,000
DISBURSEMENTS ARE BILLED MONTHLY AS INCURRED OR EARLIER IN THE CASE OF COMPLETED
SPECIAL PROJECTS. LONG DISTANCE PHONE IS BILLED AT A FLAT RATE OF $350 MONTHLY
AND $400 FOR EACH ROAD SHOW.
COMPENSATION PROVISIONS
Agency services compensation under this program totaling $191,000 will be paid
net 10 days to Redington as provided for herein.
All out-of-pocket disbursements incurred by Redington on behalf of Client will
be paid net 10 days to Redington as provided for herein. The
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disbursement budget in this agreement is approximate to the best of Redington's
ability to estimate such expenses in advance of project execution. No expenses
beyond the total presented in said budget will be committed without prior
written approval of Client.
INCENTIVE COMPENSATION PROVISIONS
Client will issue Redington a warrant (the "Incentive Warrant") upon execution
of this agreement for the purchase of $150,000 shares of Client Common Stock at
an exercise price of $6.60 (Base Price) for five years with cashless exercise
and ownership transfer provisions. The Incentive Warrant, which expires on April
30, 2005, vests as follows:
1. 25,000 shares upon start of program
2. 50,000 shares upon meeting call provisions of the IPO Unit Warrants
3. 25,000 shares upon share price goal of 75% above the Base Price
4. 12,500 shares upon share price goal of 100% above the Base Price
5. 37,500 shares upon share price goal of 75% above the Base Price
All provisions of the first vesting event (25,000 warrants) are met upon
execution of this agreement.
All provisions of the second vesting event (50,000 warrants) are met when the
call provisions of the Warrants issued as part of the Client's IPO Unit offering
are met, whether or not client elects or is able to execute the call. If
provisions of the second vesting event are met, Client additionally agrees to
make payment to Redington of either $125,000 or 20,000 fully paid shares of
Client common stock. The choice of payment is the decision of Redington if 75
percent or more of subject warrants are exercised, or if less than 75 percent of
subject warrants are exercised , the choice of payment is the decision of the
Client. Whichever the outcome, the payments to Redington will be made to within
15 days of the second vesting event's provisions being met.
All provisions of the third and fourth vesting events (37,500 shares) are deemed
met when the average closing price on the principal exchange of trading the
company's shares is at or above the goal on eight of any 10 consecutive trading
days between the dates of November 1, 2000 and April 30, 2002.
All provisions of the fifth vesting event (37,500 shares) are deemed met when
the average closing price on the principal exchange of trading the company's
shares is at or above the goal during the last three weeks of the 12th month and
the first week of the 13th month following the effective date of the client IPO,
or if 50 percent or more of the so-called "Founder's" shares to have been sold
in a private or best-efforts, or underwritten
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transaction at any price by the end of the 14th week following the effective
date of the Client IPO.
Any of the above goals can be met sequentially or simultaneously.
The actual number of shares of Common Stock awarded under this program will be
adjusted for any stock splits and the rights of the warrant holder with regard
to any dividends or any restructuring will be the same as if the warrant holder
held the shares of Common Stock underlying the warrants at the time of any such
actions.
Client agrees to use its best efforts to provide freely tradable shares upon
exercise of any part of Incentive Warrant described above or the issuance of any
fully paid for Client shares and will provide piggy back registration of said
shares on any registration of shares Client may undertake for other parties. If
no such registration occurs within one month of any vesting of the Incentive
Warrants or payment to Redington of any fully paid for Client shares, Redington
can demand Client to file for registration of such shares by any means available
which Client agrees to support in all respects so that a registration of
Redington's shares can proceed in a timely manner. The costs of a demand
registration, exclusive of costs incurred by Client in preparation of customary
or other documents issuer's are or may be required to provide for such a
registration, will be born by Redington unless any other warrant or shareholder
of Client seeks piggyback registration with the Redington registration, in which
case all reasonable costs of the registration, including all reasonable costs
already incurred by Redington or its agents, will be paid by Client. Client
agrees these registration provisions will not be subordinated or otherwise
changed, overridden or mitigated by any historic or future agreements or
occurrences unless written approval of Redington and that any disputes will be
resolved as provided for herein.
OTHER PROVISIONS
The intent of this program is to broaden sponsorship of Client in the US
financial community; however, no assurances can be given that the desired result
will be achieved, it being a function of many factors, most of which are not
controllable by either the Client or Redington
o Client agrees that the Redington financial community database is
Redington property and will be available for Client use and activities
only during the term of this agreement.
o Client acknowledges that Redington mastheads (i.e., At A Glance,
Preview, Profile and other similar mastheads that may be developed) are
exclusive and will be available for client use only during this
agreement; Client, however, is deemed to own the text developed for
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it by Redington and is free to use it at will after the expiration or
termination of this program, assuming all Client financial obligations
to Redington are met
o Redington will exercise its best professional efforts in execution of
this program.
o Client will advise Redington immediately in writing of any material
change in its business and, in particular, any changes that may
influence an investor's decision to either buy, hold or sell Client
securities.
o Client agrees to hold Redington harmless against any action (whether or
not in connection with litigation in which Redington is a party)
resulting form dissemination of Client-approved written information or
oral information consistent in all material respects with such written
information, including any legal fees or other costs that may be
reasonably incurred by Redington in defense of any such actions, or in
giving testimony or furnishing documents in response to a subpoena or
otherwise. Redington will give Client prompt notice of any claim
asserted or threatened against Redington on the basis of which Redington
intends to be held harmless as herein provided. Client may also
participate at its own expense in the defense of such action.
o Redington will not disseminate written information about Client without
prior written approval from Client.
o Either party may cancel this agreement and the cash compensation
provisions on 45 days written notice. The provisions of the "Incentive
Warrant's" vesting schedule will survive termination of this agreement
for 90 days after written notification of such termination by either
party.
o Redington invoices are payable net 10 days upon presentation with
interest of 1.5 percent on any amounts due past 30 days. In the event
any dispute, controversy or claim between the parties arises out of the
subject matter of this agreement or its interpretation, it shall be
settled by arbitration taking place in New York, New York by a sole
arbitrator acting under and pursuant to the Rules of Commercial
Arbitration of the American Arbitration Association. Any award rendered
shall be final and conclusive upon the parties, and a judgment thereon
may be entered in the highest court of the forum, whether state or
federal, having jurisdiction. The party ultimately prevailing shall be
entitled to be awarded and receive in the arbitration award or judgment
thereon its costs and reasonable
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attorney's fees incurred in connection therewith and the enforcement
thereof.
/s/ /s/
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M. S. Koly Thomas Redington
Chief Executive Officer President
Delcath Systems, Inc. Redington, Inc.
Date Date
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Exhibit A
DELCATH SYSTEMS, INC.
Implementation Schedule
2002-2001 Program Year
FIRST QUARTER
Local/Opportunistic Media
Prepare/Distribute Delcath At A Glance
Stage 6 market road shows
Start Redington outbound contacts
Stage 10-15 fund manager meetings
Stage 2-3 sell-side analyst meetings
Issue corporate milestones
SECOND QUARTER
Stage 6 market road shows
Continue Redington outbound contacts
Evaluate Nova Link conference calls
Stage 2-3 sell-side analyst meetings
Stage 8-12 fund manager meetings
Opportunistic Media
Issue corporate milestones
Review program progress
THIRD QUARTER
Continue Redington outbound contacts
Edit/re-issue Delcath At A Glance
Evaluate NovaLink conference calls
Stage 3 market road shows
Stage 4-6 fund manager meetings
Opportunistic Media
Issue corporate milestones
FOURTH QUARTER
Evaluate NovaLink conference calls
Evaluate additional road shows
Stage 12-18 fund manager meetings
Opportunistic Media
Issue corporate milestones
Discuss/submit Year Two program