1
EXHIBIT 10.62
XXXX & XXXXXXXX CAPITAL, LLC
000 0XX XXXXXX, XXXXX 0000
XXX XXXX, XXX XXXX 00000
TELEPHONE: (000) 000-0000
FAX: (000) 000-0000
June 30, 1997
Shaman Pharmaceuticals, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxx
Dear Madam or Sir:
In reference to the Engagement Agreement, dated April 17, 1997
(the "Engagement Agreement"), between Shaman Pharmaceuticals, Inc., a Delaware
corporation (the "Company"), and Xxxx & Xxxxxxxx Capital, LLC, a New York
limited liability company (the "Placement Agent"), this letter sets forth
confirmation of certain matters in connection with the engagement of the
Placement Agent under the Engagement Agreement and certain amendments to the
Engagement Agreement as follows. Capitalized terms used herein without
definition shall have the meanings given them in the Engagement Agreement.
1. The prospective investors in the Transaction include Delta
Opportunity Fund, Ltd., a British Virgin Islands corporation ("Delta"), and
Overbrook Fund I, LLC, a New York limited liability company ("Overbrook"). Delta
is an entity which is advised by Xxxx & Altschul Advisors, LLC, a New York
limited liability company ("DA Advisors"). Xxxxxx X. Xxxxxxxx, Xx. serves as a
director of Delta. The Placement Agent and DA Advisors are under common control.
Xx. Xxxxxxxx is the sole managing member of Overbrook and Xx. Xxxxxxxx and
members of his family are the principal investors in Overbrook. DA Advisors will
serve as advisor to, or enter into a managed account agreement with, Overbrook
with regard to the Note purchased by Overbrook.
2. In view of the fact that the Placement Agent has introduced
all of the prospective investors in the Transaction, the Company agrees that the
3% cash amount payable to the Placement Agent pursuant to Section 2(a)(1) of the
Engagement Agreement shall apply to all of the gross proceeds from the sale of
securities (the "Senior Convertible Notes") to investors. The Company
acknowledges that the cash amount and the Fee Securities payable to the
Placement Agent pursuant to Section 2(a) of the Engagement Agreement with
respect to each Note Purchase Agreement between the Company and an
2
investor (each, a "Note Purchase Agreement" and collectively, the "Note Purchase
Agreements") shall have been fully earned by the Placement Agent on the date
such Note Purchase Agreement is executed and delivered; provided, however, that
the Company's obligation to pay such compensation with respect to each investor
is subject to the express condition subsequent that the Senior Convertible Note
to be purchased by such investor is issued and sold to such investor on the
Closing Date provided in the respective Note Purchase Agreement and that the
funds representing the purchase price therefor are released from the investor's
escrow to or for the benefit of the Company. Accordingly, no payment of any fee,
whether in cash or in Fee Securities, will be due by the Company with respect to
any Note Purchase Agreement until such condition subsequent is satisfied with
respect to such Note Purchase Agreement.
3. Pursuant to Section 2(b) of the Engagement Agreement, the
Company hereby agrees to increase the amount it shall pay or reimburse the
Placement Agent for expenses thereunder from $50,000 to $62,500.
If the matters set forth in this letter are acceptable to the
Company, please sign a copy of this letter in the space provided below and
return it to the Placement Agent, whereupon this letter shall be a binding
agreement between the Company and the Placement Agent under the laws of the
State of New York and the Engagement Agreement shall be amended by this letter
Agreement. Except as amended by this letter agreement, the Engagement Agreement
remains in full force and effect.
Very truly yours,
XXXX & XXXXXXXX CAPITAL, LLC
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Managing Member
Accepted and agreed as of the date
first set forth above.
SHAMAN PHARMACEUTICALS, INC.
By: /s/ Xxxx X. Xxxxx
---------------------------------
Xxxx X. Xxxxx
President and
Chief Executive Officer
2.
