EX-10 2 scoagreement.txt 10.1 SMALL CAPS ONLINE AGREEMENT Exhibit 10.4 [SmallCaps Online LLC Letterhead] November 20, 2000 BioMarin Pharmaceutical Inc. 371 Bel Marin Keys Blvd Suits 210 Novato, CA 94949 Attention: Fredric D. Price Title: Chairman & Chief Executive Officer Dear Sirs: The purpose of this letter is to confirm the appointment of SmallCaps Online LLC ("SmallCaps" or the "Advisor") upon the terms and conditions set forth herein as financial consultant and advisor to BioMarin Pharmaceutical Inc. ("the Company") in connection with a potential direct investment into the Company. In this capacity SmallCaps will assist the Company by undertaking certain activities, to the extent that such activities are required by the status of a project, including the following: 1) Confer with appropriate Company management to discuss and help the Company formulate an appropriate strategy, familiarization of product and technology, milestones, etc. as such relates to a capital fundraising transaction; 2) Advise the Company with respect to financing strategy; 3) Assist in such other capacity as may be reasonably requested by the Company to effect to the foregoing. Either the Company or SmallCaps may designate entities with which the Company wishes SmallCaps to approach or negotiate an behalf of the Company; provided that, the Company shall approve all such entities in advance in its sole and absolute discretion. Any entity that the Company has provided SmallCaps with specific written approval to approach or negotiate with is referred to in this letter as a "Designated Candidate". In the event a Transaction, as defined hereafter, is completed with any Designated Candidate, the Company will pay SmallCaps a success fee of 5.25% of the Aggregate Value of the Transaction, payable fully or partially in cash or the Company's common stock, at SmallCaps' election. For the purposes of this letter, the term "Aggregate Value" shall mean the total amount of cash and the fair market value of all other property paid or payable to the Company. In addition, Aggregate Value shall include the net amount of any debt and/or contingent liability repaid or assumed by a purchaser from the Company. For purposes of this letter, a "Transaction" shall mean any transaction or series or combination of transactions, other than in the ordinary course of trade or business, whereby, directly or indirectly, a significant portion of the capital stock of the Company or all or substantially all of its assets are transferred to an unaffiliated third party for consideration, including without limitation, a sale or exchange of capital stock or assets, a lease of assets with or without a purchase option. a merger or consolidation, a tender or exchange offer, a leveraged buy-out, or any similar transaction. It is expressly understood that the term "Transaction" does not include (i) the Company entering it to or forming a partnership, joint venture, collaboration, license agreement or similar transaction for purposes of developing, manufacturing, commercializing, selling or similar activities with respect to any current or proposed product or technology; (ii) any transaction whatsoever with Acqua Wellington North America Equities Fund, LTD., Glyko Biomedical Ltd. or any affiliate of the foregoing entities; or (iii) any underwritten public offering. In addition to any fees payable to SmallCaps under the terms of this letter, the Company agrees to reimburse the Advisor, upon a monthly basis, for its reasonable out-of-pocket expenses incurred in connection with the Advisor's activities under this letter provided that, BioMarin shall have no obligation to reimburse SmallCaps unless SmallCaps provides the Company with an estimate of such out-of-pocket expenses, and the Company approves such expenses in advance. The Company agrees to indemnify SmallCaps and each of its respective affiliates and their respective directors, officers, employees, agents and controlling persons (each such person being an "Indemnified Party") from and against any and all losses, claims, damages and liabilities, joint or several, to which such Indemnified Party may become subject under any applicable federal or state law, or otherwise, related to or arising out of any transaction contemplated by this letter or the engagement of the Advisor pursuant to, and the performance by the Advisor of the services contemplated by, this letter and will reimburse any Indemnified Party for all expenses (including counsel fees and expenses, whether incurred in connection with third party claims or direct claims against the Company) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party. The Company will not be liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense is found in a final judgment by a court of competent jurisdiction to have resulted primarily from the Advisor's bad faith or gross negligence. If a Transaction is consummated by the Company within one year from the date of termination of this agreement with any Designated Candidate, as 2 determined in accordance with the above procedures, the Company agrees to pay the Advisor a Transaction fee determined as provided in the foregoing paragraphs. The Advisor's engagement hereunder may be terminated by either the Company or the Advisor at any time upon thirty days written notice to that effect to the other party, it being understood that the provisions relating to the payment of fees, expenses and indemnification as required hereunder will survive any such termination. This agreement shall be construed and interpreted in accordance with the laws of the State of New York. If the foregoing is in accordance with your understanding, please confirm acceptance by signing and returning to us the duplicate of this letter attached herewith. SMALLCAPS ONLINE LLC By: /s/ Jeffrey B. Davis --------------------------- Name: Jeffrey B. Davis Title: President BIOMARIN PHARMACEUTICAL INC. By: /s/ Fredric D. Price ------------------------- Name: Fredric D. Price Title: Chairman & Chief Executive Officer 3 Designated Candidate List AIM Global Healthcare - Michael Yellin Amerindo - Dr. Selena Chaisson Ascend Capital - Malcolm Fairberin BayStar Capital - Sherrill Lybrook BioAsia Investments - Frank Kung BioCom Investments - Mony Ben Dor Blumberg Capital Management - Laurence Blumberg Brown Simpson Asset Management - Mitch Kaye CARE Capital - David R. Ramsay Chelsey Capital - Erik Franklin DCF Capital - Watt Boone Deerfield - Jackie Siegal, Bill Slattery DNB Capital - David Baker Dresdner RCM - Dennis Heinke Emerging Growth Management - Marc Pentopoulos First New York Securities - Joe Edelman Firsthand Funds - Christine Duzmal Forstmann Asset Management - Tony Forstmann Franklin Resources - Evan McCulloch/Paul Walker HealthCo Partners - Herriot Tabuteau Integral Capital - Lynda Candler Kaufmann Fund - Mary Ann Gray Knowlton Brothers - Bill Sheeline Merlin BioMed - Stu Weisbrod Moore Capital - Joanne Soja Murphy Investment - Lissa Morgenthaler Muzinich & Co. - Ken Sorensen Narragansett Asset Management - Matthew G. Cohen Oracle Partners - Dr. Rosemary Mazanet OrbiMed Advisors - Michael Sheffery Orbitex Management - Tim Bepler Palladin Group - Ira Liederman Perseus-Soros - Dennis J. Purcell Pequot Capital - Doug Foster RAM Capital - Steve Saltzstein Spear, Leeds & Kellogg - Elemer Piros State of Wisconsin - Mark Traster Trinity Capital - Gene Jung 4 Exhibit 10.5 [SMALLCAPS ONLINE GROUP LLC LETTERHEAD] January 16, 2001 BioMarin Pharmaceutical Inc. 371 Bel Marin Keys Boulevard Novato, CA 94949 Attention: Fredric D. Price Title: Chairman & CEO Dear Sirs: The purpose of this letter is to confirm the appointment of SmallCaps Online Group LLC ("SmallCaps" or the "Advisor") upon the terms and conditions set forth herein as financial consultant and advisor to BioMarin Pharmaceutical Inc. ("the Company") in connection with the Company's general financial advisory and investor relations needs. In this connection, SmallCaps, in its capacity as financial advisor, will assist the Company by undertaking certain activities, at the request of the Company and to the extent that such activities are required by the status of a project, including the following, 1) Meet with appropriate Company management to discuss and help the Company formulate an appropriate strategy, familiarization of product and technology, milestones, etc.; 2) Advise the Company with respect to developing, and assist with implementing, an Internet/New Media strategy for communicating the Company's investment message to individual investors and new media; 3) Advise the Company with respect to Investor relations activities as it pertains to the Internet, including development of presentation materials and communication with investment managers, brokers and analysts who are SmallCaps contacts; 4) Advise the Company with respect to financial and investor relations, including development of presentation materials, introduction to and scheduling of meetings with investment managers and brokers, and analysis of ownership; 5) Assist in such other capacity as may be reasonably requested by the Company to effect the foregoing. It is the practice of SmallCaps to provide financial advice with respect to corporate finance and investor relations partially on a retainer basis for a period of 6 (six) months. Our retainer for services to be rendered hereunder is $6,000 per month, payable at the beginning of each month, and 10,000 five-year warrants (or options) (with cashless exercise provisions and in a form reasonably satisfactory to SmallCaps) to purchase the Company's registered common stock at the closing price on the day immediately preceding the date hereof. In the event that SmallCaps acts as placement agent for a financing that takes place during the 6 month term of the engagement, the $36,000 in fees contemplated to be paid as part of this engagement will be credited against (will reduce the amount of) the placement fee that SmallCaps would earn as part of such fee as placement agent. However, the 10,000 warrants (or options) would not be credited against any such placement fee). In addition to any fees payable to SmallCaps under the terms of this letter, the Company agrees to reimburse the Advisor, upon a monthly basis, for its out-of-pocket expenses incurred in connection with the Advisor's activities under this letter. Advisor's fees in excess of $1000 per occurrence will be approved in advance by the company. The Company agrees to indemnify SmallCaps and each of its respective affiliates and their respective directors, officers, employees, agents and controlling persons (each such person being an "Indemnified Party") from and against any and all losses, claims, damages and liabilities, joint or several, to which such Indemnified Party may become subject under any applicable federal or state law, or otherwise, related to or arising out of any transaction contemplated by this letter or the engagement of the Advisor pursuant to, and the performance by the Advisor of the services contemplated by, this letter and will reimburse any Indemnified Party for all expenses (including counsel fees and expenses, whether incurred in connection with third party claims or direct claims against the Company) as they are incurred in connection with the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party. The Company will not be liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense is found in a final judgment by a court of competent jurisdiction to have resulted primarily from the Advisor's bad faith or gross negligence. The Advisor's engagement hereunder may be terminated by either the Company or the Advisor upon the first day of any month upon thirty days written notice to that effect to the other party, it being understood that the provisions relating to the payment of fees, expenses and indemnification will survive any such termination. This agreement shall be construed and interpreted in accordance with the laws of the State of New York. If the foregoing is in accordance with your understanding, please confirm acceptance by signing and returning to us the duplicate of this letter attached herewith. SMALLCAPS ONLINE GROUP LLC By: /s/Steve H. Rouhandeh -------------------------------------------------- Name: Steve H. Rouhandeh Title: Chairman BIOMARIN PHARMACEUTICAL INC. By: /s/Fredreic D. Price -------------------------------------------------- Name: Fredric D. Price Title: Chairman & CEO