EXHIBIT 10.11
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Finder's Agreement
FINDER'S AGREEMENT
This agreement (the "Agreement") is entered into as of March 31, 2004 between
Vyteris, Inc., a Delaware corporation (the "Company") and Spencer Trask
Ventures, Inc., a Delaware corporation ("Finder").
RECITALS
WHEREAS, Finder may have occasion to introduce the Company to one or
more Targets (as defined in Section 2 below) who may be interested in engaging
in a business combination or financing arrangement with the Company which may
include a merger or purchase of some or all of the stock or assets of the
Company by a Target, or an investment in the securities of or loan to the
Company by a Target (singularly and in combination, a "Transaction"); and
WHEREAS, the Company desires to engage the services of Finder to provide
an introduction to such Targets in accordance with the terms and conditions set
forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, and for other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Company engages Finder as one of the Company's non-exclusive
finders, to locate proposed Targets interested in effecting a Transaction.
2. For the purposes of this Agreement, "Targets" shall mean companies or
entities introduced to the Company by Finder, exclusive of Spencer Trask
Specialty Group LLC and any entities affiliated with Spencer Trask Specialty
Group LLC.
3. In the event of a consummated Transaction, the Company shall pay to
Finder a cash fee as follows:
(a) 7% of the first $1,000,000 or portion thereof of the consideration
paid in such transaction; plus
(b) 6% of the next $1,000,000 or portion thereof of the consideration
paid in such transaction; plus
(c) 5% of the next $5,000,000 or portion thereof of the consideration
paid in such transaction; plus
(d) 4% of the next $1,000,000 or portion thereof of the consideration
paid in such transaction; plus
(e) 3% of the next $1,000,000 or portion thereof of the consideration
paid in such transaction; plus
(f) 2.5% of any consideration paid in such transaction in excess of
$9,000,000.
"Consideration paid in such transaction" for purposes of this Agreement
shall mean the value of all consideration, including proceeds of investments and
loans, paid to the Company
and/or the stockholders of the Company in connection with a Transaction,
including cash, securities or other consideration exchanged or paid at
closing; assumption of debt; and any deferred payments including without
limitation notes and contingent payments. Payment of the applicable fee
set forth above will be made at the closing of the related Transaction.
The fee shall be payable in cash.
In the event that any fees due Finder are not paid when due, the Company
shall also be liable to Finder for interest on the amount due at the annual rate
of three percent (3%) over the prime rate, accruing on a daily basis from the
date of closing, plus all of Finder's reasonable legal fees and expenses in
connection with collection of said fees.
4. This Agreement shall remain in full force and effect for a period of
five (5) years after the date hereof; provided, however, that Finder shall be
entitled to receive the full fee set forth in paragraph 3 hereof in the event
discussions are held with a Target during the term of this agreement and a
Transaction or other business arrangement is consummated with such Target within
two years from the expiration of this Agreement.
5. The Company shall not be liable for any retainers, costs, expenses or
other charges incurred by Finder or third parties at the request of Finder
unless the Company has authorized such costs or expenses in writing.
6. (a) Finder is an independent contractor and financial advisor and is
not an employee or agent of the Company and it shall have no authority to bind
the Company in any manner whatsoever.
(b) The Company acknowledges that Finder has not done any due
diligence with respect to any Target and that Finder makes no representations
whatsoever with respect to any Target (including without limitation its
financial condition or its ability to perform any obligations to which it is or
may become bound), and the Company expressly agrees that Finder shall have no
liability whatsoever in connection with any Transaction it may enter into with a
Target.
7. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to its conflict of law
principles.
8. This Agreement constitutes the entire agreement between the parties
and supersedes any prior agreements, whether written or oral, between the
parties. No modification, extension or change in this Agreement shall be
effective unless it is in writing and signed by both Finder and the Company.
9. The provisions of this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, their heirs, legal representatives,
successors and assigns. This Agreement may not be assigned except upon the prior
written consent of the other party to this Agreement.
10. Any notice hereunder shall be in writing and delivery thereof shall
be complete if delivered in person, by facsimile or mailed by overnight mail, or
registered or certified mail, postage prepaid to the following addresses (unless
changed by written notice):
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Finder: Spencer Trask Ventures, Inc.
535 Madison Avenue, 18th Floor
New York, NY 10022
Attention: William P. Dioguardi, President
Company: Vyteris, Inc.
13-01 Pollitt Drive,
Fair Lawn, New Jersey 07410
Attention: Vincent L. DeCaprio, President
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first above written.
VYTERIS, INC. SPENCER TRASK VENTURES, INC
By: /s/ Michael McGuinness By: /s/ William P. Dioguardi
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Title: Chief Financial Officer Title: President
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