AGREEMENT TO ENGAGE VIKING INVESTMENT GROUP II INC AS A FINANCIAL CONSULTANT
Exhibit
10.137
AGREEMENT
TO ENGAGE VIKING INVESTMENT GROUP II INC
AS
A FINANCIAL CONSULTANT
Viking
Investment Group II Inc (“VIG” or the “Consultant”) hereby submits to Vyteris
Holdings(Nevada), Inc., (“VYHN” or the “Company’) this Financial Consulting
Agreement (the “Agreement”) outlining the terms pursuant to which VIG would be
willing to act as Financial Consultant.
| I. | ENGAGEMENT | ||
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VYHN
hereby engages and retains VIG as Financial Consultant to perform
the
Services (as that term is hereinafter defined) and VIG hereby accepts
such
appointment on the terms and subject to the conditions hereinafter
set
forth and agrees to use its best efforts in providing such
services.
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| II. |
INDEPENDENT
CONTRACTOR
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VIG
shall be, and in all respects be deemed an independent contractor
in the
performance of its duties hereunder, any law of any jurisdiction
to the
contrary notwithstanding.
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| X. |
XXX
shall be solely responsible for making all payments to and on behalf
of
its employees, subcontractors, including those required by law, and
VYHN
shall in no event be liable for any debts or other liabilities of
VIG.
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| X. |
XXX
shall not, by reason of this Agreement or the performance of the
Services,
be or be deemed to be, an employee, agent, partner, co-venturer or
controlling person of VYHN, and VIG shall have no power to enter
into any
agreement on behalf of, or otherwise bind VYHN. Without limiting
the
foregoing, VIG shall not enter into any contract or commitment on
behalf
of VYHN.
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| C. |
Subject
to Section II D hereof, VIG shall not have or be deemed to have,
fiduciary
obligations or duties to VYHN and shall be free to pursue, conduct
and
carry on for its own account (or for the account of others) such
activities, employments, ventures, businesses and other pursuits
as VIG in
its sole, absolute and unfettered discretion, may
elect.
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| D. |
Notwithstanding
the above, no activity, employment, venture, business or other pursuit
of
VIG during the term of this agreement shall conflict with VYHN’s
obligations under this Agreement or be adverse to VYHN’s interests during
the term of this Agreement.
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| III. |
SERVICES
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| VIG agrees to serve as Financial Consultants to VYHN and to provide and/or perform the following, hereafter collectively referred to as the “Services”: | |||
| A. |
Complete
an analysis of VYHN’s business and industry, and follow with a
comprehensive background report that summarizes VYHN’s corporate and
financial profile (the “Corporate Profile”) that shall be available for
distribution to potential investors, underwriters, business partners,
or
others, as VYHN shall deem appropriate.
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| B. |
Work
with VYHN, its counsel or other representatives to revise and/or
draft any
other documents that may be necessary in VYHN’s efforts to secure
additional equity participants or to seek M&A candidates to increase
its business.
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| C. |
Assist
VYHN in efforts to seek additional business relationships that will
be of
benefit to VYHN. Advise VYHN and/or any of its affiliates in its
negotiations in pursuing a form of business combination, such as
joint
venture, licensing agreement, products sales, and/or marketing
distribution.
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1
| X. |
XXX
shall devote such time and effort, as it deems commercially reasonable
and
adequate under the circumstances to the affairs of VYHN to render
the
consulting services contemplated by this agreement. VIG is not responsible
for the performance of any services, which may be rendered hereunder
without VYHN providing the necessary information in writing prior
thereto,
nor shall VIG include any services that constitute the rendering
of any
legal opinions or performance of work that is in the ordinary purview
of
the Certified Public Accountant. VIG cannot guarantee results on
behalf of
VYHN, but shall pursue all reasonable avenues available through its
network of contacts. At such time as an interest is expressed by
a third
party in VYHN’s needs, VIG shall notify VYHN and advise it as to the
source of such interest and any terms and conditions of such interest.
The
acceptance and consumption of any transaction is subject to acceptance
of
the terms and conditions by VYHN in its sole discretion. It is understood
that a portion of the compensation paid hereunder is being paid by
VYHN to
have VIG remain available to advise it on transactions on an as-needed
basis.
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| E. |
In
conjunction with the Services, VIG agrees to:
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| 1. |
Make
itself available to the officers of VYHN at a mutually agreed upon
place
during normal business hours for reasonable periods of time, subject
to
reasonable advance notice and mutually convenient scheduling, for
the
purpose of advising VYHN in the preparation of such reports, summaries,
corporate and/or transaction profiles, due diligence packages and/or
other
material and documentation (“Documentation”) as shall be necessary, in the
opinion of VIG, to properly present VYHN to other entities and individuals
that could be of benefit to VYHN.
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| 2. |
Make
itself available for telephone conferences with the principal financial
sales and/or operating officer(s) of VYHN during normal business
hours.
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| 3. |
Advise
VYHN regarding company operations, staffing, strategy, and other
issues
related to building shareholder value as VYHN may reasonably request,
consistent with the provisions of this Agreement.
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IV.
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EXPENSES | ||
| A. |
It
is expressly agreed and understood that each party shall be responsible
for its own normal and reasonable out-of-pocket expenses which shall
include: accounting, long distance communication, and the printing
and
mailing of materials between the parties hereto.
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V.
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COMPENSATION | ||
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Fees:
In consideration for the services rendered by VIG, VYHN agrees to
pay VIG
the following Fee ::
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| 4. |
$500,000
plus 5,250,000 warrants, with a strike price of $1.50 per share,
five year
term and cashless exercise, with a 9.9% “blocker” provision. This shall
constitute the consulting fee for the one year term of the agreement
and
shall be payable within 48 hours of execution of the
Agreement.
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VI.
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REPRESENTATIONS, WARRANTIES AND COVENANTS | ||
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SEC
& Legal Compliance.
VIG hereby represents that it has in place policies and procedures
relating to, and addressing, with the commercially reasonable intent
to
ensure compliance with, applicable securities laws, rules and regulations,
including, but not limited to:
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| 1. |
The
use, release or other publication of forward-looking statements within
the
meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act
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| 2. |
Disclosure
requirements outlined in Section 17B of the Exchange Act regarding
the
required disclosure of the nature and terms of VIG’s relationship with
VYHN in any and all VIG literature or other communication(s) relating
to
VYHN, including, but not limited to: Press Releases, letters to investors
and telephone or other personal communication(s) with potential or
current
investors.
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| B. |
Both
parties will keep confidential and not disclose to any third party
any
confidential information of either party made available to other
pursuant
to this Agreement and will use the confidential information only
in
connection with the execution of the obligations and duties contemplated
by this Agreement. “Confidential Information” shall include all
information concerning either party that is deemed confidential through
marking, in writing or memorandum, or that by its nature, should
be
considered confidential, excluding any information that is generally
available to the public, or any information which becomes available
to
either party on a non-confidential basis from a third party who is
not
known by either party to be bound by a confidentiality obligation
of this
Agreement: provided however, that such confidential information may
be
disclosed (i) to either party’s officers, directors, employees, counsel
and accountants in connection with its engagement hereunder, who
shall be
informed of the confidential nature of the information and that such
information is subject to a confidentiality agreement: (ii) to any
person
with the written consent of the disclosing party, subject to execution
of
an appropriate nondisclosure agreement; or (iii) if, upon the advice
of
counsel, either party is compelled to disclose such information (in
which
case the party compelled to disclose shall, to the extent permitted
by
applicable law, rule or regulation, and practicable under the
circumstances, advise the other party in writing prior to such disclosure
and shall consult with the other party with respect to the form and
timing
of disclosure). VIG agrees that it will not trade nor allow any of
its
officers, directors, principals, consultants, employees, or affiliates
which receive Confidential Information to trade in the Company’s stock
until three trading days after any material nonpublic information
in such
party’s possession or to such party’s knowledge is made public, or the
Company has otherwise notified such party in writing that the information
is moot.
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| 3. |
It
is understood that VIG is not acting in the capacity of a licensed
securities broker or dealer, and shall have no authority to enter
into any
commitments on the Company’s behalf, or to negotiate the terms of a
financing, which responsibility shall be of the Company, or to hold
any
funds or securities in connection with financing or to perform any
act
which would require VIG to become licensed as a securities broker
or
dealer or perform in accordance with such licensure. It is further
acknowledged that VIG is not acting as part of any “group” as such term is
defined under the Securities Exchange Act of 1934, as amended , and
neither VIG or any third-party who may acquire common stock shall
be
claimed by the Company to be acting in concert with respect to such
common
stock, nor shall VIG (or such persons) be claimed by the Company
to be an
“affiliate” of the Company or of each other. VIG agrees to comply with all
federal and state laws in performance of its services with respect
hereto.
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| C. |
Execution.
The execution, delivery and performance of this Agreement, in the
time and
manner herein specified, will not conflict with, result in a breach
of, or
constitute a default under any existing agreement, indenture, or
other
instrument to which either VYHN or VIG is a party or by which either
entity may be bound or affected.
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| D. |
Non-Circumvention.
VYHN hereby irrevocably agrees not to circumvent, avoid, bypass,
or
obviate, directly or indirectly, the intent of this Agreement, to
avoid
payment of fees in any transaction with any corporation, partnership
or
individual introduced by VIG to VYHN, in connection with any project,
any
loans or collateral, or other transaction involving any products,
transfers or services, or addition, renewal extension, rollover,
amendment, renegotiations, new contracts, parallel contracts/agreements,
or third party assignments thereof.
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| E. |
Timely
Apprisals.
VYHN shall use its commercially reasonable efforts to keep VIG up
to date
and apprised of all business, market and legal developments related
to
VYHN and its operations and management.
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| 1. |
Accordingly,
VYHN shall provide VIG with copies of all amendments, revisions and
changes to its business and marketing plans, bylaws, articles of
incorporation, private placement memoranda, key contracts, employment
and
consulting agreements and other operational agreements.
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| 2. |
VYHN
shall promptly notify VIG of all new contracts, agreements, joint
ventures
or filings with any state, federal or local administrative agency,
including without limitation, the SEC, NASD or any state agency,
and shall
provide all related documents, including copies of the exact documents
filed, to VIG, including without limitation, all annual reports,
quarterly
reports and notices of change of events, and registration statements
filed
with the SEC and any state agency, directly to VIG.
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| 3. |
VYHN
shall also provide directly to VIG current financial statements,
including
balance sheets, income statements, cash flows and all other documents
provided or generated by VYHN in the normal course of its business
and
requested by VIG from time to time.
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| 4. |
VIG
shall keep all documents and information supplied to it hereunder
confidential as described in the section below titled, “CONFIDENTIAL
DATA”.
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| F. |
Corporate
Authority.
Both VYHN and VIG have full legal authority to enter into this Agreement
and to perform the same in the time and manner
contemplated.
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| 1. |
The
individuals whose signatures appear below are authorized to sign
this
Agreement on behalf of their respective corporations.
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| 2. |
VYHN
will cooperate with VIG, and will promptly provide VIG with all pertinent
materials and requested information in order for VIG to perform its
Services pursuant to this Agreement.
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| 3. |
When
delivered, the shares of VYHN’s common stock shall be duly and validly
issued, fully paid and non-assessable.
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| 4. |
VIG
represents and warrants to VYHN that a) it has the experience and
ability
as may be necessary to perform all the required Services with a high
standard of quality, b) all Services will be performed in a professional
manner, and c) all individuals it provides to perform the Services
will be
appropriately qualified and subject to appropriate agreements concerning
the protection of trade secrets and confidential information of VYHN
which
such persons may have access to over the term of this
Agreement
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| 5. |
Until
termination of the engagement, VYHN will notify VIG promptly of the
occurrence of any event, which might materially affect the condition
(financial or otherwise), or prospects of VYHN.
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VII.
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TERM | ||
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The
term of this Agreement shall be 365 days from the date of execution.
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VIII.
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CONFIDENTIAL DATA | ||
| X. |
XXX
shall not divulge to others, any trade secret or confidential information,
knowledge, or data concerning or pertaining to the business and affairs
of
VYHN, obtained by VIG as a result of its engagement hereunder, unless
authorized, in writing by VYHN. VIG represents and warrants that
it has
established appropriate internal procedures for protecting the trade
secrets and confidential information of VYHN, including, without
limitation, restrictions on disclosure of such information to employees
and other persons who may be engaged in rendering services to any
person,
firm or entity which may be a competitor of VYHN.
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| B. |
VYHN
shall not divulge to others, any trade secret or confidential information,
knowledge, or data concerning or pertaining to the business and affairs
of
VIG, obtained as a result of its engagement hereunder, unless authorized,
in writing, by VIG.
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| X. |
XXX
shall not be required in the performance of its duties to divulge
to VYHN,
or any officer, director, agent or employee of VYHN, any secret or
confidential information, knowledge, or data concerning any other
person,
firm or entity (including, but not limited to, any such person, firm
or
entity which may be a competitor or potential competitor of VYHN
which VIG
may have or be able to obtain other than as a result of the relationship
established by this Agreement.
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| IX. |
OTHER
MATERIAL TERMS AND CONDITIONS:
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| A. |
Indemnity.
The
parties hereto agree to provide indemnification to each other with
regard
to claims made against the other due to a party’s gross negligence or
willful misconduct with respect to performance of its duties hereunder.
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| B. |
Provisions.
Neither
termination nor completion of the assignment shall affect the provisions
of this Agreement, and the Indemnification Provisions, which are
incorporated herein, which shall remain operative and in full force
and
effect.
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| C. |
Additional
Instruments.
Each of the parties shall from time to time, at the request of others,
execute, acknowledge and deliver to the other party any and all further
instruments that may be reasonably required to give full effect and
force
to the provisions of this Agreement.
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| D. |
Entire
Agreement. Each
of the parties hereby covenants that this Agreement, together with
the
exhibits attached hereto as earlier referenced, is intended to and
does
contain and embody herein all of the understandings and agreements,
both
written or oral, of the parties hereby with respect to the subject
matter
of this Agreement, and that there exists no oral agreement or
understanding or expressed or implied liability, whereby the absolute,
final and unconditional character and nature of this Agreement shall
be in
any way invalidated, empowered or affected. There are no representations,
warranties or covenants other than those set forth
herein
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| E. |
Laws
of the State of New York.
This Agreement shall be deemed to be made in, governed by and interpreted
under and construed in all respects in accordance with the laws of
the
State of New York, irrespective of the country or place of domicile
or
residence of either party.
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| F. |
Assignments.
The
benefits of the Agreement shall inure to the respective successors
and
assignees of the parties hereto and of the indemnified parties hereunder
and their successors and assigns and representatives, and the obligations
and liabilities assumed in this Agreement by the parties hereto shall
be
binding upon their respective successors and assigns, provided that
the
rights and obligations of either party under this Agreement may not
be
assigned or delegated without the prior written consent of the other
party, and any such purported assignment shall be null and void.
Notwithstanding the foregoing, VIG may assign any portion of its
Compensation as outlined herein to its employees, affiliates,
sub-contractors or subsidiaries in its sole discretion.
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| G. |
Originals.
This
Agreement may be executed in any number of counterparts, each of
which so
executed shall be deemed an original and constitute one and the same
agreement. Facsimile copies with signatures shall be given the same
legal
effect as an original.
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| H. |
Addresses
of Parties. Each
party shall at all times keep the other informed of its principal
place of
business if different from that stated herein, and shall promptly
notify
the other of any change, giving the address of the new place of business
or residence.
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| I. |
Modification
and Waiver. A
modification or waiver of any of the provisions of this Agreement
shall be
effective only if made in writing and executed with the same formality
as
this Agreement. The failure of any party to insist upon strict performance
of any of the provisions of this Agreement shall not be construed
as a
waiver of any subsequent default of the same or similar nature or
of any
other nature.
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APPROVED
AND AGREED:
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| Viking Investment Group II Inc | Vyteris Holdings (Nevada) , Inc. | ||||
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/s/
Xxx
Xxxxxxxxx
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/s/
Xxxxxxx X. XxXxxxxx
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| By |
By:
Xxxxxxx X. XxXxxxxx
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Its:
CEO
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7/25/07
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7/26/07
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Date
of execution
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Date
of execution
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