EXHIBIT 10.129
September 13, 2006
PRIVATE & CONFIDENTIAL VIA E-MAIL
Xx. Xxxxxxx X. Xxxxxxxx
President & CEO
VYTERIS HOLDINGS (NEVADA), INC.
00-00 Xxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Dear Xxx:
ADVISORY CONSULTING AGREEMENT
Pursuant to our discussions, this document represents the terms of the agreement
(the "Agreement") between VYTERIS HOLDINGS (NEVADA), INC. ("Vyteris" or the
"Company") and International Capital Advisory Inc. ("ICA").
The effective date of this Agreement shall be September 13, 2006.
1. SCOPE OF AGREEMENT:
As discussed, during the term hereof, ICA will undertake certain advisory
services (the "Services") on behalf of the Company, including:
(a) Managing, identifying and/or assisting in the negotiation and
placement of two equity financings of $5 million and $15 million
US for the Company, (the "Equity Fundings"). Such Equity Fundings
may be done in two tranches with completion of tranche one
immediately and ICA and the Company shall each use their
respective best efforts to complete tranche two by 12/31/06. In
the $5 million tranche, it is currently anticipated that Vyteris
will issue 20,000,000 shares of Common Stock at a price of $0.25
per share, and 10,000,000 2-year warrants exercisable at $0.45
per share (the "Units"). The warrants will be callable by the
Company when the bid price of the stock trades at $1.00 per share
for 20 consecutive trading days. In the second tranche, it is
currently anticipated that Vyteris will issue $15 million shares
of common stock at a minimum of $0.75 per share.
(b) ICA shall aid Vyteris in developing a capital market strategy and
introduce Vyteris to investment dealers, analysts, corporate
finance representatives, institutional investors and retail
brokers throughout North America and Europe when appropriate. ICA
shall work with the Company's US investor relations firm(s) and
Vyteris' internal investor relations personnel on a regular basis
to develop a long-term North American program to enhance Vyteris'
presence in the capital markets. This will include setting up
road shows and dealer presentations throughout North America and
Europe.
ADVISORY CONSULTING AGREEMENT-VYTERIS
PRIVATE AND CONFIDENTIAL
SEPTEMBER 13, 2006
PAGE 2
(c) ICA shall aid Vyteris in identifying potential acquisition
targets in Canada, the US and Europe. ICA will obtain Vyteris'
Board approval before approaching any companies. As part of a
potential M&A transaction, ICA may introduce Vyteris to parties
who can facilitate a possible M&A financing.
(d) Upon Vyteris' Board approval, ICA shall aid Vyteris in sourcing,
negotiating and/or facilitating possible joint-ventures with
pharmaceutical companies and medical device companies to enhance
its distribution capabilities, product pipeline or licensing
initiatives.
2. FEES STRUCTURE:
The following outlines the fees structure for the advisory services
described above:
(a) Upon the closing of the initial $5.0 million Equity Funding
Vyteris will issue or grant: (i) 6.0 million common shares in
Vyteris to ICA or any of ICA's affiliates or partners; and (ii)
an additional 1.1 million shares in Vyteris to one or more of
ICA's Investor Relations groups. In each case, the shares granted
pursuant to this paragraph are being granted in consideration of
the services being provided by ICA to Vyteris, and shall be
deemed to be issued for $0.25 per share of value;
(b) If the second tranche does not close due to ICA not performing,
then, then ICA shall return to Vyteris 1 million Vyteris common
shares. If the second tranche closes, then ICA does not need to
return any shares.
(c) The Company will pay ICA a monthly consulting fee of $12,500 for
12 months with the first payment due on September 1, 2006.
Additionally, once the first 12 month period described herein is
completed, Vyteris will pay ICA a monthly retainer of $15,000 for
the subsequent twenty four (24) month period. All payments are
due and payable on the first day of each month.
(d) If the first tranche of $5 million described above is
consummated, then, if during the subsequent 18 months a merger or
acquisition is completed or a funding related to a merger or
acquisition is completed with any company or entity introduced by
ICA during the term of this letter agreement, then Vyteris pays a
work fee to ICA in an amount equal to 6% of the total value of
the transaction. Further, if the second tranche described above
is consummated (and results in gross proceeds to the Company of
$15 million or more), the work fee referred to in the preceding
sentence shall apply for 3 years following the closing of the
first tranche (in other words, an additional two years).
(e) If a strategic or partnership agreement, including without
limitation, a distribution, marketing, licensing, product or
manufacturing agreement,
ADVISORY CONSULTING AGREEMENT-VYTERIS
PRIVATE AND CONFIDENTIAL
SEPTEMBER 13, 2006
PAGE 3
is entered into or from an ICA generated prospect, the
transaction fee to be paid to ICA shall be an upfront payment and
commission equal to the following percentage of "gross revenues",
as defined below, of all products or services sold to, or
through, Vyteris or the ICA Prospect, and all products or
services sold between Vyteris and the ICA Prospect, in any market
addressed by the business relationship:
o UP-FRONT ONE-TIME PAYMENT EQUAL TO US $50,000,00 PER
PRODUCT;
o YEAR 1: 3% OF GROSS REVENUES
o YEAR 2: 3% OF GROSS REVENUES
o YEAR 3: 3% OF GROSS REVENUES
o YEAR 4: 3% OF GROSS REVENUES
o YEAR 5: 3% OF GROSS REVENUES
For the purpose of this provision, a "year" shall commence on the
date of the first sale of a product/service under the
distribution, marketing, manufacturing or licensing agreement and
each anniversary date thereafter.
(f) All air, hotel, meal expenses, telecommunication expenses and all
other reasonable expenses relating to Vyteris activities,
submitted on a monthly basis. Any expense or group of related
expenses above US $750 must be pre-approved by Vyteris.
3. CONFIDENTIALITY:
The Company and ICA agree to hold confidential the terms and
conditions of this Agreement other than required by law.
3A. At all times during the term hereof, ICA shall comply with all
applicable laws, rules and regulations in connection with ICA's performance
of this Agreement. ICA covenants that it shall not offer or sell Vyteris
securities in any state or other jurisdiction within the United States of
America. ICA shall indemnify and hold the Company harmless for the
Company's direct damages in the event that ICA breaches the foregoing two
covenants.
4. TERM:
(a) This Agreement shall be for a minimum period of 36 months
commencing on the closing date of the initial tranche of the
Equity Fundings (the "End Date").
(b) Notwithstanding the termination of this Agreement, the provisions
of section 2(a), 2(b), 2(c), 2(d), 2(e), 2(f) and 3A shall
survive until the End Date.
ADVISORY CONSULTING AGREEMENT-VYTERIS
PRIVATE AND CONFIDENTIAL
SEPTEMBER 13, 2006
PAGE 4
Unless otherwise stated, all figures in this Agreement are stated in US dollars.
Please confirm your agreement with the foregoing terms by signing this Agreement
in the place provided below and returning two executed copies to the offices of
ICA to the attention of Xx. Xxxxxx Xxxxx.
Yours very truly,
On behalf of
INTERNATIONAL CAPITAL ADVISORY INC.
By:
/s/ Xx. Xxxxxx Xxxxx
-----------------------------
Xx. Xxxxxx Xxxxx
Vice-President
Acknowledged and agreed this 13th day of September 2006.
On behalf of
VYTERIS HOLDINGS (NEVADA), INC.
By:
/s/ Xx. Xxxxxxx X. XxXxxxxx
-----------------------------
Xx. Xxxxxxx X. XxXxxxxx
CEO
