EXHIBIT 1.1
XXXXXX & XXXXXXX, INC.
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
000-000-0000
Fax 000-000-0000
May 19, 2003
Xxxxxx X. Xxxxxx, M.D.
Chairman and C.E.O.
ARIAD Pharmaceuticals, Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Dear Xx. Xxxxxx:
The purpose of this letter agreement (the "Agreement") is to
authorize Xxxxxx & Xxxxxxx, Inc. ("Xxxxxx") to contact one or more potential
institutional investors (collectively, "Investors"), with a view towards
exploring the degree of interest, if any, of such Investors in purchasing up to
a maximum of Four Million (4,000,000) shares of newly-issued common stock, par
value $.001 per share (the "Shares"), of ARIAD Pharmaceuticals, Inc. (the
"Company") off of the following presently existing shelf registration statements
filed by the Company with the Securities and Exchange Commission (the
"Commission") on Form S-3: (i) Registration No. 333-63708 (as declared effective
by the Commission on August 1, 2001), and (ii) Registration No. 333-76486 (as
declared effective by the Commission on February 13, 2002) and a Registration
Statement on Form S-3 related thereto to be filed with the Commission pursuant
to Rule 462(b) of the Commission's Rules and Regulations and to be effective
upon filing. If the Company chooses to issue any such securities, on terms
mutually agreed upon by the Company and any such Investor(s), or if there is any
issuance of equity securities (including options or warrants to purchase equity
securities) by the Company (but specifically excluding all securities issued in
an offering or transaction which includes a sale of a security with a return
based in whole, or in part, on the performance of less than all of the Company's
assets) within 12 months from the date of this Agreement to any Investors who
purchased securities from the Company pursuant to this Agreement (any such
issuances a "Financing"), then the Company shall pay to Xxxxxx the fees and
compensation set forth below.
In consideration of the services rendered by Xxxxxx under this
Agreement, the Company agrees to pay Rodman a cash fee payable immediately upon
the closing of any portion of any Financing equal to 5.5% of the aggregate
capital raised at such closing; provided, however, that no cash fee shall be due
from the Company to Xxxxxx under the Letter Agreement between the Company and
Xxxxxx dated as of November 7, 2002, which is superseded and supplanted by this
Agreement. The Company will also pay to Xxxxxx up to an aggregate of $25,000 to
reimburse Xxxxxx for its out-of-pocket expenses related to the Financing.
The Company may terminate Xxxxxx'x authorization to contact Investors
at any time by written notice. However, Xxxxxx shall remain entitled to receive
the compensation described above in accordance with the terms of this Agreement
with respect to any Investors who agree to purchase securities prior to its
receipt of such notice.
Assuming the sale of securities for gross proceeds of at least
$5,000,000 in one or more substantially contemporaneous closings, the Company
shall deliver to Xxxxxx an opinion of counsel to the Company to the effect that
the completed transactions have been duly authorized and completed in compliance
with the Securities Act of 1933, in customary form for offerings of this type.
Xxxxxx represents, warrants and covenants to the Company that it is a
member in good standing of the NASD and it has, and at all times while taking
any actions constituting an offer or sale of securities in connection with this
Agreement had, and at all times while taking any actions constituting an offer
or sale of securities in connection with this Agreement will have, all
governmental licenses (including both federal and state broker dealer licenses)
required to act as placement agent for the securities. Xxxxxx shall indemnify
the Company against any
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liabilities arising out of Xxxxxx'x failure, in connection with this
Agreement, to comply with the rules of the NASD or the Securities Act of 1933,
as amended, and the rules promulgated thereunder.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to conflicts of law
principles. Any dispute arising out of this Agreement shall be adjudicated in
the courts of the State of New York or in the federal courts sitting in the
Southern District of New York, and each of the parties hereto agrees that
service of process upon it by registered or certified mail at its address set
forth herein shall be deemed adequate and lawful. The Company shall indemnify
Xxxxxx against any liabilities arising under the Securities Act of 1933, as
amended, attributable to any material information supplied or omitted to be
supplied to any Investor by the Company pursuant to this Agreement, except to
the extent that any such liabilities are found by a court of competent
jurisdiction in a judgment which has become final to have resulted primarily
from the indemnified person's bad faith or negligence.
This Agreement constitutes the entire understanding and agreement
between the parties hereto with respect to its subject matter and there are no
agreements or understandings with respect to the subject matter hereof which are
not contained in this Agreement. This Agreement may be modified only in writing
signed by the party to be charged hereunder.
If the foregoing correctly sets forth our agreement, please confirm
this by signing and returning to us the duplicate copy of this letter.
Very truly yours,
XXXXXX & XXXXXXX, INC.
Agreed to and accepted By: /s/ Xxxxxx Xxxxx
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as of the date first written above: Xxxxxx Xxxxx
Managing Director
ARIAD pharmaceuticals, INC.
By:/s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Xxxxxx X. Xxxxxxxxxx
Senior Vice President and Chief Financial Officer
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