Industrial Management & Equity Limited
28 Welbeck Street, London W1G 8EW
Tel: 020 7224 5091 Fax: 020 7224 5093
20 September 2004
Robert Oldham
President
Cancer Therapeutics Inc.
210 W. Hansell St.
Thomasville, GA 31792
Dear Mr. Oldham,
You are hereby authorised and directed to issue shares of Cancer Therapeutics,
Inc. ("the Company") which are required to be issued pursuant to that certain
agreement between the Company and Industrial Management & Equity Limited and
its nominated affiliates ("Industrial Management") dated 20 September 2004, to
a trust of which Lyndon Gaborit and/or his family members are the
beneficiaries, or to such other nominee as may be designated by Industrial
Management.
Yours sincerely,
/s/ Lyndon Gaborit
Lyndon Gaborit
Managing Director of
Industrial Management & Equity Limited
We hereby agree to observe and be bound by the engagement and terms and
conditions of Industrial Management as set out in the attachment.
/s/ Robert Oldham
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Signed Date
Robert Oldham
Cancer Therapeutics, Inc.
Duly authorised for and on behalf of Cancer Therapeutics Inc.
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SCHEDULE to a fee letter from Industrial Management Limited to
Cancer Therapeutics Inc. (the "Company")
Dated 20 September 2004
The following general terms and conditions shall apply in relation to and be
deemed to be incorporated into the fee letter by reference. Words defined in the
letter of engagement shall have the same meaning in this Schedule, save where
the context otherwise requires.
1. Financial Services Authority
Industrial Management is not authorised by the Financial Services Authority
("FSA") and only conducts those tasks of a strategic planning and negotiating
nature that are acceptable under appropriate legislation.
2. Definitions
In the fee letter and this schedule the following additional definitions shall
have the meaning ascribed to them below:
"acquisition " means any transaction or series or combination of transactions
whereby, directly or indirectly, control of, or any interest in, the company or
business forming the subject matter of the Proposed Transaction or any of its
assets is transferred to the Company (or as it directs) for consideration,
including the formation of a joint venture, minority investment or partnership
or undertaking or any similar transaction. Acquisition also includes the
transfer for consideration of part only of the assets or undertaking of the
company or business forming the subject matter of the Proposed Transaction;
"affiliate" means (i) any company, authorised by the FSA and nominated by
Industrial Management which provides financial advice to the Company in relation
to the Proposed Transaction (ii) any company in which Industrial Management or
any company controlling, controlled by or under the same control as Industrial
Management holds 20 per cent. or more of the shares carrying the right to attend
and vote at a general meeting of such company or (iii) any company which shall
be a holding company of Industrial Management from time to time;
"consideration" means the total value of all cash, securities, other property,
and any other consideration, including without limitation, any contingent,
earned or other consideration, paid or payable, directly or indirectly, in
connection with an acquisition. Consideration shall also be deemed to include
any indebtedness (including, without limitation, short-term and long-term
indebtedness, pension liabilities, guarantees, finance leases and other
obligations) assumed or to be assumed in connection with the acquisition. The
value of any securities (whether debt or equity) or other property shall be
determined as follows: (i) the value of securities that are freely tradable in
an established public market shall be the last closing market price (or in the
absence of such a closing price, the mid-price between the indicative bid and
offer prices) on the business day prior to the public announcement of the
acquisition; and (ii) the value of securities which are not freely tradable or
which have no established public market or, if the consideration consists of
property other than securities, the value of such other property shall be the
fair market value thereof as mutually agreed by the Company and Industrial
Management (or, if they are unable to agree, by Independent appraisal by an
appraiser appointed by Industrial Management). If the consideration to be paid
is computed in any currency other than Pounds Sterling, the value of such
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currency shall, for the purposes hereof, be converted into Pounds Sterling at
the prevailing exchange rate on the date or dates on which such consideration is
to be invoiced;
3. Provision of Information and Confidentiality
The following terms will govern the treatment of information and advice supplied
by the parties under the terms of this letter of engagement:
a) The Company will provide Industrial Management with such information
as is necessary and appropriate in order to provide the services
specified in this fee letter. Industrial Management will keep
confidential and not use, other than in connection with the Proposed
Transaction, any information which is not in the public domain or
until such information enters the public domain, save that Industrial
Management shall where so required be entitled to disclose any
information known to it or its affiliates, and to produce documents
and other materials in its or their possession or under its or their
control, relating to the Proposed Transaction or any related matter to
any Court, Tribunal, or other regulatory body under whose regulation
Industrial Management, its affiliates or the Company falls from time
to time; and
b) The Company recognises and acknowledges that Industrial Management
will use and rely primarily on the information provided to it by the
Company or its other advisers without having independently verified
the accuracy thereof and the Company accepts that Industrial
Management does not assume responsibility for the accuracy or
completeness of such information.
4. Indemnity
The Company hereby agrees with Industrial Management for itself and on trust for
each of the others referred to below:
a) To indemnify and hold harmless Industrial Management and its
affiliates, and their respective directors, officers, agents and
employees (" Indemnified Persons " or " Indemnified Person " as the
case may be) from and against any and all losses, costs, claims,
actions, expenses, judgements, charges, proceedings, liabilities and
damages (" Claim" or "Claims " as the case may be) which an
Indemnified Person may suffer or incur (including, without limitation,
all costs, charges and expenses which any Indemnified Person may
suffer or incur in disputing or investigating any such Claim, whether
or not such Claim is successful, compromised or settled ) arising
directly or indirectly out of or in connection with the services
provided under the fee letter and will reimburse Industrial Management
and any Indemnified Person for all time, costs and expenses incurred
in connection with investigating, preparing for or defending any such
Claim or other proceeding whether or not Industrial Management or any
Indemnified Person is named as a party thereto and whether or not any
liability results therefrom.
b) That neither Industrial Management nor any other Indemnified Person
shall have any liability (whether direct or indirect, in contract tort
or otherwise) to the Company or its shareholders or any holding
company of the Company or any subsidiary or subsidiary of such holding
company or their respective directors, officers, employees or agents
for or in connection with the engagement except for any such liability
for claims, liabilities, losses, damages or expenses incurred by the
Company which arise from Industrial Management's failure to exercise
the degree of skill, care and diligence required of it under the Act
in the provision of investment business services and investment
advice.
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5. E-Mail
Where information or data is transferred by e-mail in pursuance of any provision
of this Agreement the transmitting party shall not be required to cause or
procure the encryption of such information or data or the integrity of the
transmission (other than the correct addressing thereof) and any discovery by a
third party of the contents thereof or of any part thereof shall not be a breach
of the above confidentiality provisions.
6. Validity of Instructions
Industrial Management shall be entitled to assume that any instructions in
relation to the Proposed Transaction have been properly authorised by the
Company if they are given or purport to be given by an individual or person who
is or purports to be or is reasonably believed by Industrial Management to be a
director, employee or authorised agent of the Company;
7. Interests of Affiliates
The Company accepts that Industrial Management's affiliates are engaged in the
provision of a wide range of financial services including the giving of
investment and other advice and may have an interest in, or conflict of duty in
relation to, any transaction or matter which relates to the Proposed Transaction
or to the services which are to be provided to the Company hereunder or may have
a client or clients whose interests may give rise to such a conflict.
8. Independent Contractor
Industrial Management is an independent contractor, not the Company's employee.
Industrial Management's employees or contract personnel are not the Company's
employees. Industrial Management and the Company agree to the following terms
and conditions consistent with an independent contractor relationship:
a) This agreement is non-exclusive, and Industrial Management has the
right to perform services for others during the term of this
Agreement, provided such services are not in conflict with the
services to be performed by Industrial Management hereunder.
b) Industrial Management has the sole right to control and direct the
means, manner and method by which the services required by this
Agreement will be performed.
c) Industrial Management has the right to perform the services required
by this Agreement at any place, location or time.
d) Industrial Management will furnish all equipment and materials used to
provide the services required by this Agreement.
e) Industrial Management has the right to hire assistants as
subcontractors, or to use employees to provide the services required
by this Agreement, without the approval of the Company.
f) Neither Industrial Management nor Industrial Management's employees or
contract personnel shall receive any training from the Company in the
skills necessary to perform the services required by this Agreement.
g) The Company shall not require Industrial Management or Industrial
Management's employees or contract personnel to devote full time to
performing the services required by this Agreement.
9. Deductions and Withholdings
All sums payable to Industrial Management or to any Indemnified Person shall be
paid free and clear of all deductions or withholdings unless the deduction or
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withholding is required by law, in which case the Company shall pay such
additional amount as shall be required to ensure that the net amount received by
Industrial Management or that Indemnified Person will equal the full amount
which would have been received by it had no such deduction or withholding been
made.
If the British Inland Revenue or any other taxing authority brings into charge
to tax any sum payable to Industrial Management or any Indemnified Person by way
of reimbursement or indemnity, the amount so payable shall be grossed up by such
amount as will ensure that after deduction of the tax so chargeable (ignoring
for this purpose the availability of any relief or other deductions available to
Industrial Management or such Indemnified Person) there shall be left a sum
equal to the amount that would otherwise be payable hereunder as a result of
such reimbursement or indemnity.
9. Privacy of Advice
The Company acknowledges and agrees that any advice provided by Industrial
Management under the terms of this letter of engagement is provided solely for
the benefit of the Company and its affiliates in relation to the Proposed
Transaction and may not be used or relied upon in relation to any other matter
or be disclosed to any other party without the prior written consent of
Industrial Management.
10. Period and Scope of Arrangement
This Agreement shall commence on the date of the engagement letter and will
continue in force until determined:
a) Within 30 days of Industrial Management giving notice to the Company
in writing; or
b) Within 30 days of the Company giving notice in writing to Industrial
Management, with or without cause; save that the monthly retainer be
for a minimum period of 6 months, or
c) Until replaced by a later Agreement.
All or any business dealings between the Company and Industrial Management are
subject to this Agreement.
a) Following termination, Industrial Management shall be entitled to
recover all fees, costs and disbursements due and owing to them under
this letter of engagement up to and including the date of termination.
In addition, Industrial Management shall also be entitled to receive
the success related fee, as set out in clause 2 b) of the letter
engagement, computed pro-rata from the date of successful completion
of a transaction up to and including the date of termination;
b) A termination under this letter of engagement will not restrict the
obligations of the Company to Industrial Management under paragraph 4
of this letter of engagement.
c) If within 12 months of a termination under this letter of engagement,
the Company enters into an agreement to sell, acquire, raise finance
or enter any transaction as envisaged by this letter of engagement,
with a party which had been introduced to the Company by Industrial
Management, then Industrial Management will be entitled to recover all
fees which would have been payable to it if the transaction
contemplated by this letter of engagement had completed prior to
termination.
11. Complaints
Industrial Management undertakes that any complaint made in writing by the
Company will be investigated by Industrial Management. Complaints should be
addressed to The Managing Director, Industrial Management 28 Welbeck Street,
London W1G 8EW.
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12. Notices
(a) Any notice or demand given or served under this letter of engagement
shall be in writing and shall be duly expressed to be a notice under
this letter of engagement and will be deemed duly given or served if
sent by facsimile at the time of transmission (subject to the correct
code or facsimile number being received), or if posted, 48 hours after
the time at which it was posted or, if delivered by hand, at the time
of delivery if such a day is a Business Day (where Business Day means
a day other than a Saturday or Sunday during normal business hours
only and excludes bank holidays and public holidays) in London or if
such day is not a Business Day on the next following Business Day, to
the party to whom it is to be given or served at its address or
facsimile number as set out below or such other address or facsimile
number as such party may have previously communicated for such purpose
by notice to the party giving such notice or demand. The addresses and
facsimile numbers for service on the parties to this letter of
engagement are:
The Company: As stated at the end of this Schedule.
Industrial Management: Address: 28 Welbeck Street, London W1
Attention: The Managing Director
Facsimile Number:+44 20 7224 5093
(b) Any party giving or serving a notice under this letter of engagement
by facsimile shall, but without prejudice to the validity of the
notice given, send a copy of the notice by pre-paid registered post to
the party receiving such notice to that party's address set out above
or to such other address as such party shall have previously
communicated by notice to the party in accordance with this letter of
engagement.
13. Severability
If any term or provision of this letter of engagement shall be held to be
illegal or unenforceable, in whole or in part, such term or provision or part
shall to that extent be deemed not to form part of this letter of engagement and
the enforceability of the remainder of this letter of engagement shall not be
affected.
14. Amendment and Governing Law
This letter, which may not be amended except in writing by both parties,
represents the entire agreement between the parties and shall be governed by and
construed in accordance with the laws of England and shall be subject to the
jurisdiction of the British Courts.
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Accepted and acknowledged for and on behalf of the Company:
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Name: Robert Oldham
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Position: President
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Company Fax Number for Notices: __________________
Address of Company Registered Office: 412 Chelsa Cove, Franklin, TN 37064
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Address of Company for Notices (if different):
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