EXHIBIT 10.15
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Amendment No. 1 to Placement Agency Agreement
AMENDMENT NO. 1 TO THE
PLACEMENT AGENCY AGREEMENT
This AMENDMENT NO. 1 TO THE PLACEMENT AGENCY AGREEMENT (this
"Amendment") made effective as of the 8th day of July, 2004 (the "Effective
Date") by and among Vyteris, Inc. a Delaware corporation (the "Company"),
Xxxxxxx Xxxxx Ventures, Inc., a Delaware corporation ("Xxxxxxx Xxxxx") and
Xxxxxx & Xxxxxxx, LLC, a Delaware limited liability company ("R&R," each a
"Placement Agent" and collectively as the "Placement Agents").
WITNESSETH:
WHEREAS, the Company and the Placement Agents are parties to that
certain Placement Agency Agreement dated June 18, 2004 (the "Placement Agency
Agreement"); and
WHEREAS, the Company and the Placement Agents now desire to amend the
Placement Agency Agreement to reflect mutually agreed upon revised terms in
accordance with the provisions of this Amendment.
NOW THEREFORE, in consideration of the promises and mutual covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS.
Capitalized terms used herein, but not otherwise defined, shall have the
meanings ascribed to them in the Placement Agency Agreement.
2. AMENDMENTS.
(a) Section 6(k) of the Placement Agency Agreement is hereby
amended and restated in its entirety to read as follows:
"(K) AT THE CLOSING, TREASURE MOUNTAIN HOLDINGS, INC.
("PUBCO") AND THE COMPANY SHALL DELIVER TO EACH PLACEMENT AGENT A CERTIFICATE,
SIGNED BY THE PRESIDENT OF PUBCO AND THE PRESIDENT OF THE COMPANY, CONFIRMING,
ON BEHALF OF PUBCO AND THE COMPANY, RESPECTIVELY, THAT EXCEPT FOR THE
CONSUMMATION OF THE OFFERING, THE FILING OF A CERTIFICATE OF MERGER (THE
"CERTIFICATE OF MERGER") WITH THE SECRETARY OF STATE OF THE STATE OF DELAWARE
UPON CONSUMMATION OF THE MERGER AND THE RELEASE OF THEIR RESPECTIVE EXECUTED
CLOSING DOCUMENTS REQUIRED TO BE DELIVERED PURSUANT TO THE MERGER AGREEMENT, ALL
CONDITIONS TO THE CLOSING OF THE MERGER OF PUBCO AND THE COMPANY, RESPECTIVELY,
HAVE BEEN SATISFIED OR WAIVED. AT THE CLOSING, PUBCO SHALL HAVE DELIVERED TO
EACH PLACEMENT AGENT A CERTIFICATE, SIGNED BY THE PRESIDENT OF PUBCO,
CONFIRMING, ON BEHALF OF PUBCO, THAT ALL REPRESENTATIONS AND WARRANTIES OF PUBCO
SET FORTH IN THE MERGER AGREEMENT SHALL BE DEEMED TO BE MADE DIRECTLY TO THE
PLACEMENT AGENTS, WHICH REPRESENTATIONS AND WARRANTIES SHALL SURVIVE THE
CLOSING. AT THE CLOSING, THE COMPANY SHALL HAVE DELIVERED TO EACH PLACEMENT
AGENT A CERTIFICATE, SIGNED BY THE PRESIDENT OF THE COMPANY, CONFIRMING, ON
BEHALF OF THE COMPANY, THAT ALL REPRESENTATIONS AND WARRANTIES OF THE
COMPANY SET FORTH IN THE MERGER AGREEMENT SHALL BE DEEMED TO BE MADE DIRECTLY TO
THE PLACEMENT AGENTS, WHICH REPRESENTATIONS AND WARRANTIES SHALL SURVIVE THE
CLOSING."
(b) Section 6(l) of the Placement Agency Agreement is hereby deleted
in its entirety.
(c) Section 5 of the Placement Agency Agreement is hereby amended to
add the following:
"(M) IMMEDIATELY AFTER THE COMPANY'S RECEIPT OF CONFIRMATION
FROM THE STATE OF DELAWARE THAT THE CERTIFICATE OF MERGER HAS BEEN FILED, THE
COMPANY SHALL CAUSE PUBCO TO PROVIDE TO EACH PLACEMENT AGENT A CERTIFICATE,
SIGNED BY THE PRESIDENT OF PUBCO, OR ITS SUCCESSOR OR ASSIGN, CONFIRMING ON
BEHALF OF PUBCO, THAT THE REGISTRATION RIGHTS AGREEMENT (AS DEFINED IN THE
MEMORANDUM) HAS BEEN EXECUTED BY PUBCO."
3. REFERENCE TO AND EFFECT ON THE PLACEMENT AGENCY AGREEMENT.
(a) On and after the Effective Date, each reference to "this
Agreement," "hereunder," "hereof," "herein," or words of like import shall mean
and be a reference to the Placement Agency Agreement as amended hereby. No
reference to this Amendment need be made in any instrument or document at any
time referring to the Placement Agency Agreement, a reference to the Placement
Agency Agreement in any of such instrument or document to be deemed to be a
reference to the Placement Agency Agreement as amended hereby.
(b) Except as expressly amended by this Amendment, the
provisions of the Placement Agency Agreement shall remain in full force and
effect.
4. COUNTERPARTS; FACSIMILE SIGNATURES.
This Amendment may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
a single instrument. This Agreement may be executed by facsimile signatures.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to the
Placement Agency Agreement to be executed and delivered on the date first
written above.
VYTERIS, INC.
By: /s/ Xxxxxxx Xx Xxxxxx
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Name: Xxxxxxx Xx Xxxxxx
Title: President
XXXXXXX XXXXX VENTURES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: President
XXXXXX & XXXXXXX, LLC
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Managing Director
