Exhibit 6.6
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SALES AND MARKETING AGREEMENT
THIS SALES AND MARKETING AGREEMENT (the "Agreement") is made and entered into as
of this 17th day of March, 2000 (the Effective Date"), by and between NUCYCLE
THERAPY, INC., a New Jersey corporation (the "Company") having its principal
place of business at 0 Xxxx Xxxx Xxxxx, Xxxxx X, Xxxxxxxx Xxxxxxxx, XX 00000,
and Xxxx X. Xxxxxxxx, Ph.D. (the "Agent") having his place of business at 0000
Xxxx Xxxxx #0, Xxxxxx Xxxxx, XX 00000.
W I T N E S S E T H:
WHEREAS, the Agent has expertise in the sales and marketing of
nutritional products; and
WHEREAS, the Company has developed, manufactures and sell its
proprietary plant nutritional products; and
WHEREAS, the Company desires to obtain the benefits of the Agent's
business contacts, marketing abilities and advice in the nutritional
products industry and the Agent desires to provide the Company access
to such contacts and advise and assist the Company in developing new
business relationships in the nutritional products industry on the
terms provided herein.
WHEREAS, the Company and the Agent contemplate that information
considered to be proprietary and confidential to the Company may be
given to or discussed with the Company and Agent agree that the
misappropriation of such information related to the Company would
damage the Company.
NOW, THEREFORE, in consideration of the promises and mutual covenants
and agreements contained herein, the parties hereto agree as follows:
1. Services to be Provided by the Agent. Agent agrees to assist the
Company in selling and marketing the Company's nutritional products
(the "NuCycle Products"), including helping to develop marketing
literature related to the NuCycle Products.
2. Agent's Commissions. In consideration of the Agent's services and
the agreements contained herein, during the Term of this Agreement (as
defined herein), the Company agrees to pay the Agent a commission (the
"Commission") equal to ten percent (10%) of sales, to customers of
NuCycle Products from whom Agent has through his actions and
representations secured for the Company purchase orders, less returns,
allowances, customary discounts, rebates, shipping and sales and other
taxes ("Net Sales"). For a period of twentyfour (24) months following
the Term of this Agreement the Company will pay Commissions to Agent
equal to five percent (5%) of Net Sales to all customers that had
placed Purchase Orders for NuCycle Products qualifying for the 10%
commission during the Term of this Agreement.
3. Payment Terms. For so long as Commissions are due to Agent
pursuant to the terms set forth herein, the Company will pay the
Commission on Net Sales to the Agent within thirty (30) days of
collection by Company of receivables from the Purchase Orders placed by
customers of Agent and shipped by Company. Agent is not entitled to
any advances, or commissions on any uncollected or uncollectable
accounts payable.
4. Agent's Expenses. Agent and not the Company, shall be responsible
for all expenses necessary to carry out Agent's responsibilities
pursuant to this Agreement, including but not limited to travel
expenses, entertainment, office overheads, sales assistance, etc.
Company shall provide Agent with reasonable amounts of product samples
and such quantities of brochures and promotional materials as it, at
its sole discretion, may deem appropriate.
5. Other Services Rendered to Company. Agent may provide other
services to Company, including but not limited to assistance with
research and development projects, corporate management, and serving on
the Board of Directors, on such terms and conditions as the Company and
Agent may agree in the future to be in their mutual best interest,
without, however, changing or affecting in part or whole the terms and
conditions of this Agreement.
6. Confidential Information. The Agent and the Company recognize
that due to the nature of the Agent's duties hereunder, the Agent will
have access to, will acquire and may assist in developing, confidential
and proprietary information relating to the business and operations of
the Company, including, without limiting the foregoing, information
with respect to the Company's present and systems, customers and sales
and marketing methods ("Confidential Information"). The parties hereto
acknowledge that such Confidential Information has been and will
continue to be of central importance to the Company's business, and
that disclosure of it to others or its use by others or by the Agent,
other than as such information relates to the use of such Confidential
Information by the Agent for the purposes set forth hereunder, could
cause substantial loss to the Company, and the Agent accordingly agrees
that the Agent will keep confidential and will not use any Confidential
Information obtained pursuant to this Agreement other than for the
purposes set forth herein. Such Confidential Information shall be
safeguarded by the Agent and shall not be disclosed to Third Parties
and shall be made available only to the Agent's employees or other
agents who have a need to know such information for purposes of
performing the Agent's obligations under this agreement and when such
employees or other agents shall have a legal obligation to the Agent
not to disclose such information to Third Parties. The Agent shall
treat any and all such Confidential Information in the same manner and
with the same protection as the Agent maintains for Agent's own
confidential information. His obligation of confidentiality will not
apply to any information to the extent that such information: (i) is
known to the Agent prior to the date of this Agreement as evidenced by
the Agent's written records; (ii) is now or later becomes generally
available to the public, such as by publication or otherwise, through
no fault of the Agent; or (iii) is obtained from a Third Party having
the legal right to make such a disclosure.
7. Records. Any and all personal property, data, written materials,
findings, records and documents, information and Confidential
Information provided to Agent by the Company during relating to Agent's
engagement by the Company concerning the business or affairs of the
Company, and upon termination of his Agreement or upon request of the
Company during the term of this Agreement, shall be promptly delivered
by the Agent to the Company.
8. Remedies for Breach of Section 6. It is recognized that damages in
the event of breach of Section 5 herein, by the Agent would be
difficult, if not impossible, to ascertain, and it is therefore agreed
that the Company, in addition to and without limiting any other remedy
or right it may have, shall have the right to an injunction or other
equitable relief in any court of competent jurisdiction, enjoining any
such breach. The existence of this right shall not preclude any other
rights and remedies at law or in equity which the Company may have.
9. Arms-length Negotiations. The parties agree that the restrictions
and agreements contained herein are reasonable, are the product of
arms-length negotiation, and are necessary for the Company to protect
its goodwill and other interests.
10.a. Insiders Information. Company intends to become a publicly
traded company in the future and Agent agrees to strictly abide by all
Federal and State securities regulations. The Federal securities laws
strictly prohibit the purchase or sale of a publicly held security by
persons who are in the possession of "materials non-public information"
relating to that security. Generally, "material non-public
information" is information (i) which is possessed by a person by
virtue of a special relationship between such person and a company
whose securities are publicly-held, such as a relationship that a Agent
may have with such a company, and (ii) which would be considered
important by a person in considering whether to buy or sell the
securities of such a company. Agent acknowledges that trading in the
Company's securities when in possession of "material non-public
information" regarding the Company is strictly prohibited and expressly
agrees not to buy, sell or otherwise dispose of the Company's
securities when in possession of such "material non-public
information".
10.b. Tipping. The Federal Securities laws also prohibit a person
from communicating "material non-public information" to a third party
for use in dealing with the securities of a publicly held company (i.e.
"tipping"). Any person who communicates a "tip" is in violation of
these rules and is subject to monetary penalties and/or imprisonment.
Agent acknowledges that communicating "material non-public information"
regarding the Company is strictly prohibited and expressly agrees not
to communicate such "material non-public information" to third parties
without the prior written consent of the Company.
11. Independent Contractor. The parties agree that no employment
relationship exists between them and that the Agent, Agent's employees
and agents are independent contractors with respect to the Company and
Agent accordingly waives any benefits and employment by the Company.
This Agreement shall not be construed in any way to constitute Agent as
an agent for the Company for any purpose whatsoever, and Agent, in
providing the services set forth above shall be engaged in Agent's own
independent and entirely separate business. As an independent
contractor, Agent shall be solely responsible for determining Agent's
hours and the methods and persons used by Agent to carry out Agent's
responsibilities under this Agreement. Agent may not represent Agent
to be an employee of the Company and is not authorized to, and agrees
not to, incur for any reason any debt or expense on behalf of or for
the Company. In addition, at Agent's own expense, Agent shall be
responsible for the payment and reporting of all applicable federal,
state and local taxes and tax related information, licenses and license
fees that may become applicable as a result of Agent's activities
under this Agreement.
12. Representatives and Warranties. Agent represents and warrants
that: (i) Agent will not discredit the Company's name or misrepresent
the Company's products by making claims contrary to the Company's
product literature and labels; (ii) Agent will, at all times during the
Term of this Agreement, conform to and comply with all applicable laws,
regulations, orders and other governmental requirements, now or
hereinafter in force, related to the performance of Agents duties
hereunder.
13. Assignability. This contract may not be assigned by the Agent.
14. Term and Termination. The Term of this Agreement shall begin on
the Effective Date and end on such date as it is terminated pursuant to
this Section 11 (the "Term"). The Company may terminate this Agreement
on five (5) days written notice to Agent if Agent breaches the
representations and warranties set forth in Section 12 above. The
Company may terminate this Agreement, at its sole discretion, on four
(4) months written notice to Agent.
12. Survival. Notwithstanding anything to the contrary contained in
this Agreement, Sections 6, 7, and 8 hereof shall survive any
expiration or termination of this Agreement for a period of five years
after the date of such expiration or termination.
13. Notices. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and if
sent by registered or certified mail to the Agent at Agent's address as
first written above, or at such other address as the Agent has filed in
writing with the Company, or, in the case of the Company, at its
principal executive offices.
14. Entire Agreement and Severability. This Agreement constitutes the
entire understanding of the Agent and the Company with respect to the
subject matter hereof and supersedes any and all prior understanding
written or oral. This Agreement may not be changed, modified, or
discharged orally, but only by an instrument in writing signed by the
parties. This Agreement shall be governed by the laws of the State of
Maryland and the invalidity or unenforceability of any Provisions
hereof shall in no way affect the validity or enforceability of any
other provision. If any provision shall be interpreted to be only so
broad as is enforceable.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed in their respective behalves as of the date first above
written.
NUCYCLE THERAPY, INC. XXXX X. XXXXXXXX, PH.D.
By: /s/Xxxx Xxxxxx /s/Xxxx X. Xxxxxxxx
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Name: Xxxx Xxxxxx.
Title: President and C.E.O.
