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EXHIBIT 10
CONSULTING AGREEMENT
This Agreement, dated December 29, 2000 but effective for all purposes
as of July 1, 2001, is entered into by and between HELIX BIOMEDIX, INC., a
Colorado corporation (the "Company"), and Xxxxx X. Xxxxxxx, a resident of
Louisiana ("Xxxxxxx" or "Consultant").
In consideration of the mutual covenants of the parties hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Engagement Term. The Company hereby engages Xxxxxxx as a consultant
to render services to the Company as described below, commencing on July 1,
2001, and extending for a term of two years, and expiring on June 30, 2003.
Consultant hereby accepts the engagement as a consultant with the Company
pursuant to the terms and conditions hereof. Consultant agrees to consult with
and on behalf of the Company, as requested by the Chief Executive Officer
("CEO") of the Company from time to time. Upon request, Consultant agrees to
make himself available for such consulting services and agrees to perform such
services in a professional manner, to the best of his ability.
Except upon the prior written consent of the Board of Directors
of the Company, Consultant shall not during the term of this Agreement engage,
directly or indirectly, engage in any other business activity (whether or not
pursued for pecuniary advantage) that is or may be competitive with, or that
might place him in a competing position to that of the Company or any other
corporation or entity that directly or indirectly controls, is controlled by, or
is under common control with the Company (as "Affiliated Company").
2. Compensation. As sole compensation for Consultant's services to be
rendered hereunder, the Company shall pay to Consultant, in arrears, a monthly
retainer of $5,000; provided that in the event Consultant works more than 50
hours during any calendar month, he will be paid $100 per hour for each hour in
excess of 50 (in addition to the retainer).
3. Termination of Engagement. This Agreement shall terminate upon the
earliest of the following to occur: (i) mutual written consent of the Company
and Xxxxxxx to terminate this Agreement, (ii) written notice of termination by
Xxxxxxx, which termination shall be effective sixty days following the date such
notice is delivered to the Company; (iii) written notice of termination by the
Company to Xxxxxxx, but only if the Company provides
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to Xxxxxxx written notice of default by Xxxxxxx hereunder and Xxxxxxx fails to
remedy or cure such default within 15 days following such notice, or (iv) the
death of Xxxxxxx. Upon any such termination, the Company shall pay to Xxxxxxx
amounts due to him through the date of termination (prorated for any partial pay
period). Consultant hereby acknowledges and agrees that all personal property,
including, without limitation, all books, manuals, records, reports, notes,
contracts, lists, and other documents, proprietary information, copies of any of
the foregoing, and equipment furnished to or prepared by Employee in the course
of or incident to his employment, belongs to the Company and shall be delivered
to the Company upon termination of this Agreement.
4. Intellectual Property; Confidentiality; Non-Competition.
4.1 Intellectual Property. Consultant agrees to disclose to the Company
promptly, all inventions, discoveries and/or original works of authorship or
compilations thereof (hereinafter referred to as "Technologies") including
without limitation products, processes, designs, formulas, specifications,
prototype, models, samples, economies, reports or manuscripts as well as all
improvements made thereto, that are conceived, developed and/or reduced to
practice by Consultant during the term of this Agreement and within the scope of
work and duties performed by Consultant for the Company. The Consultant also
agrees to assign to the Company Consultant's entire right, title, and interest
in said Technologies and to any patent(s), copyright(s), trademark(s) or service
xxxx(s) which may be issued thereon by any of the various states, including
Louisiana, the United States of America, and/or any foreign country and/or any
political subdivision thereof, under any applicable state, federal, or foreign
laws or international conventions. Further, Consultant agrees to make no other
assignment, grant, mortgage, license or agreement affecting the rights and
property to be assigned pursuant to this paragraph without first obtaining the
express written consent of the Company. When requested to so do, during or
subsequent to Consultant's employment with the Company, at no out-of-pocket
expense to Consultant, Consultant agrees to communicate and deliver all facts,
information and data concerning said Technologies and improvements thereto, if
any, to the Company or its designee; to execute all initial, divisional,
continuing, substitute, renewal, or reissue applications for letters patent or
copyrights, trademarks and/or service marks, foreign or domestic, as well as
make or execute all rightful oaths, declarations, assignments, powers of
attorney and/or other documents, and generally, do everything reasonably
necessary for securing, maintaining and enforcing the Company's rights in and to
said Technologies and improvements thereto and for vesting title therein in the
Company or its designee. The undertakings set forth in this Paragraph 4.1 shall
survive the termination of this Agreement.
4.2 Confidentiality. Consultant acknowledges that during his engagement
with the Company, Consultant may receive, make use of, or add to the Company's
Confidential Information defined for the purposes of this Agreement as
consisting of, but not limited to (a) proprietary information relating to
compositions, structure and formulations of
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membrane disruptive peptides (cytoporins) and applications thereof for
pharmaceutical and non-drug use; (b) product designs, processes, formulas,
specifications, prototypes, models, samples, economies, data, records, reports,
manuscripts, and other materials of a proprietary nature; (c) records and policy
matters relating to finance, accounting, sales, personnel, property, management,
and operations; and (d) matters relating to the Company's operations such as its
clients lists, its compilation of its clients' service requirements, its price
and fee structures, its cost of services, and its cost of operations. Consultant
understands and agrees that said Confidential Information is disclosed to
Consultant in confidence and is to be used for the Company's benefit only.
Consultant agrees that he/she will keep all such information confidential at all
times during and for a period of two years after his engagement with the
Company; will not disclose or communicate such Confidential Information to any
third party without the express, written consent of the Company; and will not
use such Confidential Information on his own behalf or on behalf of any third
party. In view of the nature of the Confidential Information the Consultant will
receive during the course of his engagement, Consultant understands and agrees
that any unauthorized disclosure to third parties of said Confidential
Information or other violation or threatened violation of this Agreement would
cause irreparable damage to the trade secret status of the Confidential
Information and to the Company and that the Company shall be entitled to seek a
judicial injunction prohibiting Consultant from any such disclosure, attempted
disclosures, violation or threatened violation. The undertakings set forth in
this Paragraph 4.2 shall survive the termination of this Agreement.
4.3 Non-competition Covenants. Consultant covenants and agrees
that, during the term of this Agreement and for a period of two years following
termination of this Agreement, he shall not (i) engage, directly or indirectly,
in any other business activity that is competitive with, or that places him in a
competing position to that of the Company or an Affiliated Company within the
Parishes of East Baton Rouge, Jefferson and Orleans, Louisiana; or (ii) hire,
solicit, or attempt to hire on behalf of himself or any other party any employee
or exclusive consultant of the Company. For purposes of this Agreement, the
Company's business is defined as (i) developing, testing, patenting, and
manufacturing synthetic bioactive peptides (small proteins) having applications
in the pharmaceutical and health care fields, (ii) seeking patent protection to
protect its proprietary technology, and (iii) licensing its technology and in
seeking strategic corporate alliances for further development and
commercialization of same.
In view of the national nature of the Company's business, Consultant
further agrees that during the term of this Agreement and for a period of two
years following termination of this Agreement, Consultant shall not engage,
directly or indirectly, in any other business activity that is competitive with,
or that places him in a competing position to that of the Company or any
Affiliated Company, within any of the forty-nine states of the United States of
America other than Louisiana. Anything contained herein to the contrary
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notwithstanding, this paragraph only of this Section 4.3 shall be governed by
and enforceable in accordance with the laws of the state in which it is being
enforced against Consultant.
If any court of proper jurisdiction finds that this covenant is
overly broad or unenforceable for any reason whatsoever, then it is hereby
agreed that this covenant will be reduced or amended to be enforceable to the
extent allowable under applicable law. A violation of this covenant not to
compete by Consultant shall entitle the Company to recover all damages for the
loss sustained and the profit of which the Company has been deprived.
Additionally, the Company is entitled to injunctive relief in enforcing the
terms of this covenant not to compete without the necessity of proving
irreparable injury.
5. Assignment: Successors and Assigns. Consultant shall not assign,
sell, transfer, delegate or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any rights or obligations under this
Agreement, nor shall Consultant's rights be subject to encumbrance or the claims
of creditors. Any such purported assignment, transfer, or delegation shall be
null and void. Nothing in this Agreement shall prevent the consolidation of the
Company with, its acquisition by, or its merger into, any other corporation, or
the sale by the Company of all or substantially all of its properties or assets
or stock in an arm's length transaction (the foregoing are collectively referred
to herein as an "Acquisition"), or the assignment by the Company of this
Agreement and the performance of its obligations hereunder in connection with
any such Acquisition or to any successor in interest or any Affiliated Company.
Subject to the foregoing this Agreement shall be binding upon and shall inure to
the benefit of the parties and their respective heirs, legal representatives,
successors, and permitted assigns, and shall not benefit any person or entity
other than those enumerated above.
6. Notices. All notices and other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given
if delivered personally or by overnight courier upon receipt or three days after
deposit in the Untied States mail, return receipt requested, and addressed to
the Consultant at:
Xxxxx X. Xxxxxxx
0000 Xxxx Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
or to the Company at:
Helix BioMedix, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Chief Executive Officer
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Either party may change its address for purposes of this Section by
giving notice as set forth above.
7. Entire Agreement. This Agreement represents the entire understanding
of the parties with respect to the subject matter hereof, and may be amended
only by a writing signed by the parties hereto. This Agreement, along with any
amendments hereto, supersede any prior negotiations, offers, or agreements
between the Company and the Consultant with regard to the subject matter hereof.
8. Amendments: Waivers. This Agreement may not be modified, amended, or
changed except by an instrument in writing, signed by the Consultant and by a
duly authorized representative of the Company other than Consultant. Either
party may waive compliance by the other party with any provision of this
Agreement; provided, however, that such waiver shall not operate as a waiver of,
or estoppel with respect to, any other or subsequent failure. No failure to
exercise and no delay in exercising any right, remedy, or power hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, remedy, or power provided herein or by law or in equity.
9. Severability. If any provision of this Agreement, as applied to any
person or circumstances, is declared by a court of competent jurisdiction to be
illegal, invalid or unenforceable the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as to
which it is held illegal, invalid or unenforceable, shall not be affect thereby.
If, moreover, any one or more of the provisions contained in this Agreement
shall for any reason be held to be excessively broad as to time, duration,
geographical scope, activity or subject, it shall be construed by limiting and
reducing it, so as to be enforceable to the extent compatible with the
applicable law as it shall then appear.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Louisiana.
11. Consultant Acknowledgment. Consultant acknowledges (i) that he has
consulted with or has had the opportunity to consult with independent counsel of
his own choice concerning this Agreement, and has been advised to do so by the
Company, and (ii) that he has read and understands the Agreement, is fully aware
of its legal effect, and has entered into it freely based on his own judgment.
12. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
Agreement.
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13. Relationship of Parties. Consultant shall be deemed an independent
contractor and not an employee of the Company. All letterhead, business cards
and promotional materials used or distributed by Consultant shall present
Consultant as a business consultant to, and not an employee or principal of, the
Company. Consultant shall be responsible for all taxes associated with
compensation (both cash and (if any) stock) paid to Consultant hereunder,
including but not limited to income taxes and social security taxes.
The parties have duly executed this Consulting Agreement as of the date
first written above.
WITNESSES: HELIX BIOMEDIX, INC.
By:
----------------------------- -------------------------------------
R. Xxxxxxx Xxxxxx, President and
----------------------------- Chief Executive Officer
----------------------------- Consultant
----------------------------- -----------------------------------------
Xxxxx X. Xxxxxxx
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HELIX/TPI
RESEARCH ALLIANCE AGREEMENT
SEPTEMBER 30, 1999
* * *
A NOVATION OF THE COOPERATIVE ENDEAVOR AGREEMENT
OF NOVEMBER 10, 1995
EXHIBITS
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A By Reference HBM PRIVATE PLACEMENT MEMORANDUM
B Attached HBM/TPI COOPERATIVE ENDEAVOR AGREEMENT (1995)
C Attached KPL MONOGRAPH IN THE BIOTECHNOLOGY REPORT
D By Reference HELIX/LSU NOVATION OF PRIOR AGREEMENTS (1998)
E By Reference FOLIO II--THE BIOMEDIX/LSU LYTIC PEPTIDE TECHNOLOGY
F Attached THE DERIVATIVE PEPTIDES DEFINED
G Attached OTHER HELIX TECHNOLOGY DEFINED
H Attached SCOPE OF RESEARCH
I Attached CONFIDENTIAL DISCLOSURE AGREEMENT
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RESEARCH ALLIANCE AGREEMENT
THIS AGREEMENT is made and entered into as of the 30th day of September,
1999 by and among:
HELIX BIOMEDIX, INC., a Colorado corporation, whose permanent mailing address is
0000 Xxxx Xxxxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxx 00000 (hereinafter "HBM"); and
HELIX BIOMEDIX, INC., a Louisiana corporation and wholly owned subsidiary of
HBM, whose permanent mailing address is 0000 Xxxx Xxxxxxxxx Xxxxx, Xxxxx Xxxxx,
Xxxxxxxxx 00000 (hereinafter "HBMLA"), (said HBM and HBMLA hereinafter referred
to collectively as "HELIX"); and
THERAPEUTIC PEPTIDES, INC., a Louisiana corporation, authorized to do and doing
business in the State of Louisiana, herein represented by its President, Xxxxxx
X. Xxxx, whose permanent mailing address is 0000 Xxxxxxxx Xxxxxx, Xxxxx 0,
Xxxxxxx, Xxxxxxxxx 00000 (hereinafter "TPI"); and
BIOSOUTH RESEARCH LABORATORIES, INC., a Louisiana corporation, represented by
its President, Xxxxxx X. Xxxx, whose permanent mailing address is 0000 Xxxxxxxx
Xxxxxx, Xxxxx 0, Xxxxxxx, Xxxxxxxxx 00000 (hereinafter "BRL"); and
XXXXXX X. XXXX, individually, whose permanent mailing address is 0000 Xxxxxxxx
Xxxxxx, Xxxxx 0, Xxxxxxx, Xxxxxxxxx 00000 (hereinafter "XXXX" OR "XX. XXXX")
(TPI, BRL AND XXXX are collectively as the "TPI GROUP").
(the foregoing parties are hereinafter referred to collectively as "the
Parties").
THIS AGREEMENT becomes effective as of its "EFFECTIVE DATE" which shall
be the same as the date (hereinafter "CLOSING") upon which HBM breaks escrow on
its private offering of securities pursuant to HBM's Private Placement
Memorandum dated July 19, 1999 ("PPM"), which PPM is incorporated herein by
reference as Exhibit A; provided, however, said CLOSING shall have occurred on
or before September 30, 1999.
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WITNESSETH:
WHEREAS, HELIX, TPI, AND BRL have successfully participated since 1995
in a joint research and developmental endeavor in the field of bioactive,
membrane disruptive peptides; said joint endeavor having been undertaken in
accordance with the terms of that certain "Cooperative Endeavor Agreement" dated
November 10, 1995, a copy of which Agreement is attached hereto as Exhibit B and
made a part hereof; and
WHEREAS, HELIX, TPI, AND BRL desire to continue their cooperative
research program, but choose to amend certain terms of the aforesaid agreement,
and further desire to include XX. XXXX, president of TPI and BRL, as a party to
the amended agreement in view of his past and continuing personal contributions
to the research activities; and
WHEREAS, it is necessary for HELIX to obtain additional corporate
financing to continue expansion of its research activities and development of a
valuable patent estate; and
WHEREAS, HELIX has reached the minimum level of funding pursuant to the
PPM and the release of such funding from escrow is contingent upon execution of
this amended agreement by and among the Parties; and
WHEREAS, said funding will accelerate the research collaboration between
HELIX and TPI and thereby materially enhance the efforts of HELIX to expand its
patent portfolio, to attract strategic corporate alliances, and to commercialize
HELIX's proprietary technology;
NOW THEREFORE, the Parties do hereby enter into this "RESEARCH ALLIANCE
AGREEMENT" which comprises amendments to and which constitutes a novation of the
earlier aforesaid "Cooperative Endeavor Agreement" (Exhibit B);
AND, NOW THEREFORE, in consideration of the mutual rights and
obligations set forth below, THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE I.
DEFINITIONS
A. MEMBRANE DISRUPTIVE PEPTIDES ( "MD PEPTIDES" OR "MDPS") shall mean:
small bioactive proteins (i.e. peptides) which interact with the plasma
membrane of cells by forming trans-membrane pores or otherwise causing
disruption of the membrane structure and thereby affecting the
biological functioning of the cell; some of the properties of such MDPs
being more fully described in Exhibit C herein (a technical monograph
authored by Xxxxx X. Xxxxxxx and published in The Biotechnology Report
1994/95).
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B. HELIX/LSU PEPTIDES shall mean: MDPs which are subject of various U.S.
and foreign patents and/or patent applications previously assigned to
Louisiana State University (hereinafter "LSU") and under exclusive
license to HELIX, which patents and patent applications (hereinafter the
HELIX/LSU PATENT ESTATE) have been fully assigned to HELIX effective
January 15, 1998 under the terms of that certain agreement between HELIX
and LSU entitled "Novation of Prior Agreements" dated February 19,1998.
A copy of that agreement, defining the "HELIX/LSU PATENT ESTATE", has
been made available to each of the parties hereto and is incorporated
herein by reference as Exhibit D. The HELIX/LSU PEPTIDES and their
properties and uses are described in the specifications of the cited
patents and applications and are more fully described herein in Exhibit
E entitled "Folio II--The BioMedix/LSU Lytic Peptide Technology".
Exhibit E has also been made available to each of the parties hereto and
is incorporated herein by reference. The HELIX/LSU PEPTIDES include
peptides which may be lytic and/or proliferative, synergistic with other
bioactive agents, and active as wound healing and cancer therapy
compounds.
C. HELIX/LSU PATENT ESTATE shall mean: as set forth above in ARTICLE I-B,
those patents and patent applications defined in Exhibit D and any
divisional patent applications and patents derived therefrom. Copies of
all such patents and patent applications have heretofore been made
available to each of the Parties to this agreement.
D. DERIVATIVE PEPTIDES shall mean: all of those xenobiotic (not occurring
in nature) MDPs heretofore designed and synthesized by TPI and hereafter
to be designed and synthesized by TPI (pursuant to terms of this
Agreement) and/or third parties, which MDPs are structural and/or
sequence analogues derived from the general structural conformations of
various of the HELIX/LSU PEPTIDES; which DERIVATIVE PEPTIDES are further
described in Exhibit F attached hereto. Some of the previously screened
DERIVATIVE PEPTIDES may constitute substantial improvements upon the
HELIX/LSU PEPTIDES and may or may not fall within the scope of the
specifications and claims of the HELIX/LSU PATENT ESTATE or the
teachings of other prior art.
E. CYTOPORIN TECHNOLOGY (described in part in Exhibit C) shall mean: those
MDPs comprising the HELIX/LSU PEPTIDES and the DERIVATIVE PEPTIDES, all
commercial applications and product formulations based upon use of such
peptides, the further development of all such technology, protection of
same by patents and know-how, and the commercialization of same, but
specifically excluding those delivery systems and product formulations
proprietary to the TPI GROUP.
F. CYTOPORINS shall mean: those MDPs which fall within the meaning of
CYTOPORIN TECHNOLOGY.
G. CYTOPORIN PATENT ESTATE shall mean: both U.S. and foreign patents and/or
patent applications comprised of the HELIX/LSU PATENT ESTATE, future
patents and/or patent applications relating to the DERIVATIVE PEPTIDES
and/or
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CYTOPORIN TECHNOLOGY and such other patents and/or patent applications
relating thereto and of which HELIX shall become the assignee or
exclusive licensee of the rights thereunder.
H. OTHER HELIX TECHNOLOGY shall mean: other technology and rights thereto
which are proprietary to HELIX (and not to TPI or BRL), and which are
outside the scope of the CYTOPORIN TECHNOLOGY and the cooperative
Research Alliance relating thereto, as is contemplated by this
Agreement; said OTHER HELIX TECHNOLOGY being more fully defined in
Exhibit G herein.
ARTICLE II.
DISPOSITION OF THE DERIVATIVE PEPTIDES
A. AGREEMENT AS TO OWNERSHIP AND PATENT ABILITY: It is acknowledged by the
Parties that employees of TPI, at the expense of both HELIX and TPI,
have heretofore designed and/or synthesized and/or conducted comparative
bioassay tests on the DERIVATIVE PEPTIDES; that such tests indicate that
such peptides may have certain properties equal to or superior to like
properties of the HELIX/LSU PEPTIDES; and that the DERIVATIVE PEPTIDES
may or may not be patentable in view of prior art, and may or may not
infringe upon claims and pending claims within the HELIX/LSU PATENT
ESTATE or upon the patent rights of third parties.
B. FILING OF PATENT APPLICATIONS: In an effort to expand the scope of
intellectual property protected within the CYTOPORIN TECHNOLOGY, for the
mutual benefit of the Parties it is agreed that appropriate patent
disclosures relating to the DERIVATIVE PEPTIDES and development of the
CYTOPORIN TECHNOLOGY have been and shall (for so long as TPI conducts
research for HELIX) continue to be documented by TPI and that promptly
after the EFFECTIVE DATE of this Agreement several patent application(s)
with respect to the DERIVATIVE PEPTIDES shall be filed by HELIX in the
U.S. Patent and Trademark Office, and that various counterpart foreign
applications shall be filed, all as may be deemed by HELIX to be
necessary or desirable to protect such intellectual property.
The responsibility for filing such patent applications, for
prosecuting such applications, and maintaining patents which may be
granted therefrom, shall lie with and be at the expense of HELIX,
provided, however, TPI agrees to provide HELIX with information and
other assistance as is reasonably requested by HELIX from time to time.
In addition, within thirty days from the date hereof, TPI agrees to
provide HELIX with a master list of substantially all documented
DERIVATIVE PEPTIDES heretofore synthesized and screened (in vitro) by
TPI,
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which master list shall include sequences, amount of inventory on hand
at TPI and summary asset data.
C. ASSIGNMENT TO HELIX: In order to (1) minimize potential conflicts and to
eliminate interference with the HELIX/LSU PATENT ESTATE in the herein
proposed efforts to patent the DERIVATIVE PEPTIDES, and (2) incorporate
the DERIVATIVE PEPTIDES into the realm of the CYTOPORIN TECHNOLOGY to
facilitate effective marketing and commercialization of same, the TPI
GROUP hereby assigns and transfers to HELIX all right, title and
interest of the TPI GROUP in and to the DERIVATIVE PEPTIDES (including
without limitation the inventions and patent applications relating
thereto); thus, the rights to the DERIVATIVE PEPTIDES and related
inventions of the TPI GROUP pertaining to the CYTOPORIN TECHNOLOGY shall
upon execution hereof become a part of the CYTOPORIN PATENT ESTATE.
The TPI GROUP agrees to execute, and to cause their respective
employees and consultants to execute, from time to time written
assignments evidencing the foregoing, in a form acceptable to HELIX.
D. TERMINATION OF ROYALTY: Notwithstanding the earlier Cooperative Endeavor
Agreement provisions whereby HELIX and TPI would share in future royalty
fees which HELIX might receive in connection with the licensing or
sub-licensing of any patent rights with respect to the DERIVATIVE
PEPTIDES, it is now agreed herein by the Parties that such provisions
are extinguished by this present agreement and that HELIX shall retain
exclusive rights to any royalty stream which may result from the
DERIVATIVE PEPTIDES or other inventions pertaining to the CYTOPORIN
TECHNOLOGY.
E. OWNERSHIP OF MATERIALS AND TECHNICAL DATA: TPI agrees that all technical
data, documents, and materials (including the inventory of HELIX/LSU
PEPTIDES, DERIVATIVE PEPTIDES and various other MDPs which have been
used as control peptides in the studies conducted by TPI) in the
possession of any member of the TPI GROUP and relating to the CYTOPORIN
TECHNOLOGY, as of the EFFECTIVE DATE, shall become the property of HELIX
and will be delivered to HELIX upon request.
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ARTICLE III
NOVATION AND WAIVERS
This "Research Alliance Agreement" constitutes in all respects a
novation of the earlier "Cooperative Endeavor Agreement" (Exhibit B) by,
between, and among the Parties hereto; and this present Agreement extinguishes
all the provisions and obligations of such earlier agreement.
All vices of consent (if any) affecting the Cooperative Endeavor
Agreement or any prior agreements among the Parties are hereby waived and
released. Subject to the Parties' rights and obligations under this Agreement,
each Party hereby forever releases, compromises, and waives any claim against
any other Party for breach or default of any obligation (known or unknown) or
for any other cause of action arising under or related in any way to the
Cooperative Endeavor Agreement or any prior agreements among the Parties. Each
Party hereto accepts the performance of every other Party under the Cooperative
Endeavor Agreement and any prior agreements through the EFFECTIVE DATE of this
novation.
ARTICLE IV
CASH, STOCK AND OTHER CONSIDERATION
In consideration of (i) the expenses heretofore incurred by TPI directly
in connection with synthesizing and testing the DERIVATIVE PEPTIDES, (ii) the
agreement by TPI in ARTICLE II-C hereof to assign patents and patent
applications to HELIX and to terminate TPI'S previous contractual right to
participate in the potential patent royalty stream, and (iii) the mutual waivers
and releases granted by the Parties in ARTICLE III hereof, the Parties agree to
the following:
A. CASH, STOCK AND OTHER CONSIDERATION TO BE PAID TO TPI:
1. CASH PAYMENT TO TPI: HELIX shall make a cash payment of One
Hundred Thousand and no/100 Dollars ($100,000) to TPI on the
EFFECTIVE DATE of this Agreement.
2. ISSUANCE OF STOCK TO TPI: In partial consideration of TPI'S
execution of the earlier Cooperative Endeavor Agreement HBM
issued and conveyed ten thousand (10,000) shares of its
restricted common stock to TPI. Said shares shall remain the
property of TPI notwithstanding this novation of that
agreement. Within fifteen (15) days after the EFFECTIVE DATE
of this present Agreement HBM shall issue to TPI an additional
Fifty Thousand (50,000) shares of the restricted common stock
of HBM. Certificate(s) evidencing the 50,000 shares shall be
held in escrow by HBM (with a stock power to be executed by
TPI) and released and delivered to TPI in accordance with the
provisions of Article IV-C hereinbelow.
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3. FORGIVENESS OF TPI NOTE PAYABLE TO HELIX: HELIX hereby agrees to
forgive the indebtedness of TPI to HELIX on that certain
promissory note dated December 13, 1995 in principal amount of
$25,000.00 with interest accrued to the date hereof in the amount
of $6,656.00. HELIX agrees to deliver this note to TPI for
cancellation (marked "Paid in full-- $31,656.00") in accordance
with the provisions of Article IV-C hereinbelow.
4. AGREEMENT TO FUND RESEARCH AT TPI: HELIX and TPI hereby agree
that HELIX shall fund contract research at TPI for a minimum
period of six (6) months, at a level of $12,500 per month. Said
research shall be primarily in the areas specified in Exhibit H
attached hereto. This research project shall commence as soon
after CLOSING as is practicable and shall be in accordance with
the terms of a research contract and work statement mutually
agreed to by HELIX and TPI. Any discoveries (patentable or
otherwise) from such contract work shall be the sole property
of HELIX.
5. AGREEMENT TO NEGOTIATE LICENSE WITH TPI: It is understood by
the parties that TPI desires to obtain a license from HELIX for
the use of one or more of the DERIVATIVE PEPTIDES for topical
applications in non-pharmaceutical skin care products. The
parties hereto agree, as soon as practicable after CLOSING, to
negotiate at arms length, and in good faith, to reach agreement
with respect to terms of such a license. If such license
agreement is entered into by the parties, the agreement shall
provide for terms as customarily prevail in the industry.
B. STOCK CONSIDERATION TO BE PAID TO XXXX: It is contemplated by HELIX that
XX. XXXX, personally, will continue to make innovative contributions to
development and commercialization of the CYTOPORIN TECHNOLOGY. In
consideration of same HELIX shall give recognition to XX. XXXX'X past
and prospective contributions to HELIX by HBM'S issuing in his name,
personally, ten thousand (10,000) shares of the restricted common stock
of HBM within fifteen (15) after the EFFECTIVE DATE hereof. A
certificate evidencing such shares shall be held in escrow by HBM (with
a stock power to be executed by XX. XXXX) to be released and delivered
to XX. XXXX in accordance with Article IV-C hereinbelow.
C. DELIVERY OF THE CONSIDERATIONS: The stock and forgiveness of note to be
paid to TPI, as set forth in Articles IV-A-2 and IV-A-3 above, and the
stock to be paid to XX. XXXX, as set forth in Article IV-B above, shall
be released from escrow and delivered to TPI and XX. XXXX by HELIX at
such time as: (i) TPI
7
16
has completed the six (6) months research provided for in Article IV-A-4
hereinabove, and (ii) TPI and XX. XXXX shall have executed assignments
to HELIX (HBM OR HBMLA) of any inventions and patent applications on the
DERIVATIVE PEPTIDES filed by HELIX within a period of eight (8) months
from the EFFECTIVE DATE of this Agreement.
ARTICLE V
CONFIDENTIALITY AND SHARING OF TECHNICAL INFORMATION
A. CONFIDENTIAL DISCLOSURE AGREEMENT: It is agreed that protection of the
confidential and proprietary intellectual properties of the Parties is
of the highest order of importance. In consideration of this the Parties
hereto have executed a Confidential Disclosure Agreement attached hereto
as Exhibit I and made a part hereof.
B. SHARING OF TECHNICAL INFORMATION: The Parties agree that there shall be
an extensive and on-going systematic exchange between them, in both
verbal and written form, of all technical information which each Party
possesses relative to development of the CYTOPORIN TECHNOLOGY and to the
filing and prosecution of patent applications relating thereto.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
1. RECIPROCAL REPRESENTATIONS: Each Party hereto warrants that it or he has
the right to enter this Research Alliance Agreement; and that it or he
has no obligations, contractual or otherwise, which are inconsistent
with this Agreement. Each Party hereto represents and warrants that, to
the best of its or his knowledge, all information supplied by that Party
in the Exhibits hereto is substantially true and complete.
Notwithstanding the foregoing, no Party hereto makes any representation
concerning the validity of any patents nor the question as to whether
any of the CYTOPORIN TECHNOLOGY may infringe upon the patent rights of
others.
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17
2. REPRESENTATIONS OF TPI GROUP: The TPI GROUP represents and warrants to
HELIX as follows:
1. No Prior Assignment or License by TPI GROUP. Each member of the TPI
GROUP represents and warrants to HELIX that it/he has not heretofore
assigned, sold or licensed, or agreed to assign, sell or license, any
rights or interest he/it may have in and to either the DERIVATIVE
PEPTIDES or the CYTOPORIN TECHNOLOGY, to any party other than HELIX. To
the best knowledge of the TPI GROUP, no employee or consultant of any
member of the TPI GROUP has made any claims of ownership or inventorship
in respect of the DERIVATIVE PEPTIDES or CYTOPORIN TECHNOLOGY and no
such employee or consultant has any proprietary rights therein.
2. Restricted Stock
(a) TPI and XXXX recognize and understand that the shares of HBM
stock to be issued to them hereunder (the "securities") will not upon
initial issuance be registered under the Securities Act of 1933
("Securities Act"), or under the securities laws of any state (the
"securities laws"). The securities are not being so registered in
reliance upon exemptions from the Securities Act and the securities laws
which are predicated, in part, on the representations, warranties and
agreements of the Consultant contained herein.
(b) TPI and XXXX represent and warrant that (i) each of them has
knowledge and experience in business, finance, securities and
investments, such experience being based on actual participation
therein, (ii) each of TPI and XXXX is capable of evaluating the merits
and risks of an investment in the securities and the suitability thereof
as an investment therefor, (iii) each of TPI and XXXX is an experienced
and sophisticated investor in investments, including investments similar
to that of the securities, (iv) the securities to be acquired by will be
acquired solely for investment and not with a view toward resale or
redistribution in violation of the securities laws, and no assurances
have been made concerning the future results of HBM or as to the value
of the securities, (v) each of TPI and XXXX is an "accredited investor"
within the meaning of Regulation D promulgated by the United States
Securities and Exchange Commission (the "Commission") pursuant to the
Securities Act.
(c) TPI and XXXX has consulted with its own counsel in regard to
the securities laws and is fully aware (i) of the circumstances under
which he is required to hold the securities, (ii) of the limitations on
the transfer or disposition of the securities, and (iii) that the
securities must be held indefinitely unless the transfer thereof is
registered under the securities laws or an exemption from registration
is available.
(d) TPI and XXXX have each been furnished with a copy of the
Annual Report on Form 10-KSB of Helix filed with the Commission under
the Securities
9
18
Exchange Act of 1934, as amended, for the fiscal year ended December 31,
1998, and the Form 10-QSB quarterly report for the period ended July 31,
1999. HBM has offered to, and agrees during the term of this Agreement,
make available to TPI and XXXX upon request at any time all exhibits
filed by HBM with the Commission as part of any of the reports filed
therewith.
ARTICLE VII
SURVIVAL OF OBLIGATIONS
The obligations of the Parties to: (i) maintain the confidentiality
provided for in ARTICLE V-A of this Agreement, and (ii) assign patent rights to
HELIX in accordance with ARTICLE II shall survive indefinitely.
ARTICLE VIII
MISCELLANEOUS
A. GOVERNING LAW: The formation, construction, validity and performance of
this Agreement and the procedural and substantive rights of the Parties
hereto shall be governed in all respects by the laws of the State of
Louisiana.
B. NOTICE: Any notice or other communication required or permitted to be
made to any Party hereunder shall be sufficiently made or given on the
date of receipt if sent by certified mail to such other Party at its
address given below, or such other address as shall hereafter be
designated by the Party in writing.
TO HELIX (HBM AND HBMLA):
President,
Helix BioMedix, Inc.
0000 Xxxx Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
TO TPI:
President,
Therapeutic Peptides, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 0
Xxxxxxx, XX 00000
TO BRL:
President,
BioSouth Research Laboratories, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 0
Xxxxxxx, XX 00000
TO XXXX:
Xxxxxx X. Xxxx
0000 Xxxxxxxx Xxxxxx, Xxxxx 0
00
00
Xxxxxxx, XX 00000
C. HOLD HARMLESS: HELIX shall hold THE TPI GROUP harmless against and from
any claim, liability, loss or damage (including reasonably attorneys
fees) incurred by the TPI GROUP by reason of a material breach of this
Agreement by HELIX; and THE TPI GROUP shall hold HELIX harmless against
and from any claim , liability, loss or damage (including reasonably
attorneys fees) incurred by HELIX by reason of a material breach of this
Agreement by the TPI GROUP.
D. [INTENTIONALLY OMITTED]
E. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement and
understanding of the Parties hereto with respect to the subject matter
of this Agreement and supersedes all prior discussions, agreements,
understandings of any and every nature, whether written or oral, among
the Parties with respect to the subject matter of this Agreement, and no
condition, definition, warranty or representation other than expressly
provided for in this Agreement with respect to the subject matter of
this Agreement shall be binding upon any Party hereto. Any amendment,
modification, change or alteration to this Agreement shall be made in
writing, shall expressly refer to this Agreement and shall be signed by
a duly authorized officer or representative of each of the Parties
hereto. Without limiting the foregoing, the Parties acknowledge and
agree that this Agreement supercedes the Cooperative Agreement dated
November 20, 1995, in all respects.
F. SEVERABILITY: Should any clause, term or provision of this Agreement be
held to be illegal or in conflict with any laws, the validity of the
remaining clauses, terms and provisions hereof shall not be affected
thereby.
G. CAPTIONS AND HEADINGS: The Article and Section headings throughout this
Agreement are for convenience and reference only, and shall in no way be
deemed to define, limit, or add to the meaning of any provision of this
Agreement.
H. BINDING EFFECT AND ASSIGNMENT: This Agreement shall be binding upon and
inure to the benefit of HELIX, TPI, BRL, and XXXX and their respective
successors, as the case may be, but no Party shall assign its respective
interests in or obligations under this Agreement without the prior
written consent of the other Parties hereto.
I. TIME OF ESSENCE: Time is of the essence of this Agreement and of each
and every provision thereof.
J. MUTUAL COOPERATION: The Parties hereto shall cooperate with each other
to achieve the purpose of this Agreement, and shall execute such other
and further documents and take such other and further actions as may be
necessary or convenient to effect the transactions described herein.
K. FUTURE LEGAL COSTS: If any action or legal proceeding is brought for the
enforcement of this Agreement, or because of an alleged breach of this
Agreement, the successful or prevailing Party shall be entitled to
recover its reasonable
11
20
attorney's fees, court costs, and reasonable litigation expenses
incurred in connection with such action or proceeding in addition to any
other relief which it is entitled, from the losing Party.
L. SURVIVAL OF REPRESENTATIONS AND WARRANTIES: The representations,
warranties, covenants and agreements of the Parties set forth in this
Agreement or in any instrument, certificate, opinion, or other writing
providing for in it, shall survive the CLOSING irrespective of any
investigation made by or on behalf of any Party.
M. EXHIBITS: As of the execution hereof, the Parties hereto have provided
each other with the Exhibits referred to hereinabove, including any
items referenced therein or required to be attached thereto. Any
material changes to the Exhibits shall be immediately disclosed to the
other Parties.
* * *
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their authorized officers or representatives as of the day and year
first above written.
WITNESS: HELIX BIOMEDIX, INC. (Colorado)
BY:
--------------------------------------
HELIX BIOMEDIX, INC. (Louisiana)
BY:
--------------------------------------
THERAPEUTIC PEPTIDES, INC.
BY:
--------------------------------------
XXXXXX X. XXXX, President
12
21
BIOSOUTH RESEARCH LABORATORIES, INC.
BY:
--------------------------------------
XXXXXX X. XXXX, President
XXXXXX X. XXXX, INDIVIDUALLY
BY:
--------------------------------------
13
22
EXHIBIT F
THE DERIVATIVE PEPTIDES DEFINED
"DERIVATIVE PEPTIDES" shall mean xenobiotic (not occurring in nature)
MDP'S heretofore and hereafter designed and synthesized by TPI pursuant to the
terms of this Agreement, which peptides are structural and/or sequence analogues
derived from the general structural conformations of the various HELIX/LSU
Peptides, expressly including, but not limited to, those peptides which HELIX
and TPI have designated as "FLAK PEPTIDES", i.e., those peptides comprised
predominantly, but not exclusively, by sequence combinations of the amino acids
F, L, A, and K. (Phenylalanine, Leucine, Alanine, and Lysine).
The DERIVATIVE PEPTIDES include peptides with diverse bioactive
properties: including antibacterial, antiviral, antiprotozoan, and antifungal
activity, inhibition of neoplastic cells, proliferation and stimulation of
fibroblasts and lymphocytes, and synergistic action with other therapeutic
agents.
23
EXHIBIT I
CONFIDENTIAL DISCLOSURE AGREEMENT
THIS AGREEMENT is made and entered into this____ day of September 1999
by, between and among Helix BioMedix, Inc., a Colorado corporation, and its
wholly owned subsidiary Helix BioMedix, Inc., a Louisiana corporation,
(hereinafter referred to collectively as "BIOMEDIX") and Therapeutic Peptides,
Inc. and BioSouth Research Laboratories, Inc., both Louisiana corporations, and
Xxxxxx X. Xxxx, a Louisiana resident, (hereinafter referred to collectively as
the "TPI GROUP").
WITNESSETH:
WHEREAS, BIOMEDIX and the TPI GROUP each possess certain confidential
and proprietary information relating to membrane disruptive peptides, their
applications, and their production; and confidential information relating to the
business of BIOMEDIX and the TPI GROUP (hereinafter referred to as the
"Confidential Information"); and
WHEREAS, BIOMEDIX and the TPI GROUP desire to disclose such Confidential
Information to each other to achieve the purposes of that certain "Research
Alliance Agreement" entered into this date by the parties hereto;
NOW, THEREFORE, the parties hereto agree as follows:
1. BIOMEDIX and the TPI GROUP shall disclose the Confidential
Information to each other, and each party warrants that it is free to disclose
such Confidential Information to the other party pursuant to the terms of this
Agreement.
2. The parties agree that for a period of five (5) years from the
date of this Agreement they shall:
(a) make no use of any of the Confidential Information except
for the purpose of performing the aforesaid Research
Alliance Agreement;
(b) not disclose any of the Confidential Information to third
parties, except to affiliates or consultants, pursuant to
a non-disclosure commitment; and
(c) take such precautions as they normally take with their
own, separate confidential and proprietary information to
prevent unauthorized disclosure of the Confidential
Information.
3. The obligation of each party under Section 2 above shall not,
in any event, apply to any Confidential Information which:
(a) at the time of disclosure is or thereafter becomes
available to the public in published literature or
otherwise through no fault of either party; or
1
24
(b) was known to, or otherwise in the possession of, the
party, an affiliate, consultant or client prior to the
receipt of such Confidential Information from the other
party; or
(c) is obtained from a source other than the other party and
other than one who would be breaching a commitment of
confidentiality to either party by disclosing confidential
Information to the other party.
5. No right or license under any patent application, patent,
trade secret or other proprietary right is granted hereunder by implication or
otherwise.
* * *
IN WITNESS WHEREOF the parties hereto have executed this
Agreement as of the day and year first above written.
THERAPEUTIC PEPTIDES, INC. HELIX BIOMEDIX, INC. (CO)
and and
BIOSOUTH RESEARCH LABORATORIES, HELIX BIOMEDIX, INC. (LA)
INC.
BY: BY:
------------------------------ --------------------------------------
Xxxxxx X. Xxxx, President Xxxxx X. Xxxxxxx, President
XXXXXX X. XXXX, INDIVIDUALLY
BY:
------------------------------
Xxxxxx X. Xxxx
EXHIBIT G
OTHER HELIX TECHNOLOGY DEFINED
Genetic alteration of mammalian cells by transfection with genes
encoding for the in vivo production of MDPs. The applications include:
1. The production and breeding of transgenic animals other than
humans. (e.g. farm animals, fish, etc.)
2
25
2. Use in human gene therapy for the treatment of disease in
humans and to enhance immune responses in immuno-compromised
patients.
* * *
3
26
EXHIBIT H
SCOPE OF RESEARCH
The technical development work contemplated by this EXHIBIT shall include, but
not be limited to, the following:
(a) Obtaining such additional in vitro (and/or in vivo) data
as may be required to complete successful prosecution of
patent applications in the HELIX/LSU PATENT ESTATE and to
file, as soon as possible, new patent applications on
those DERIVATIVE PEPTIDES which have been designed and
synthesized by TPI.
(b) Optimization of the structure of CYTOPORINS by rational
design to increase activity and/or selectivity, to reduce
toxicity, to enhance compatibility with drug delivery
systems, and to reduce product manufacturing costs.
(c) Development of specific product formulations for various
applications of both drug and non-drug products.
(d) Development of drug delivery systems for specific
applications.
(e) Preclinical studies, both in-vitro and in-vivo, and/or
clinical studies on the efficacy and toxicity of specific
products within the CYTOPORIN TECHNOLOGY.
(f) Development of cost effective peptide manufacturing
technology based upon (i) scale-up of solid and/or
solution phase chemical synthesis, (ii) cross linked
enzyme reaction techniques, and/or (iii) recombinant
production methods.
1
27
KM DRAFT 6/29/99
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this "Agreement"), dated as
of________________ ____________, 1999, is entered into by and among HELIX
BIOMEDIX, INC., a Colorado corporation ("Helix"), XXXX-XXXXXX VENTURES L.L.C.
("Consultant"), and Xxxxx Xxxx, individually ("Xxxx"), and Xxxxxxx X. Xxxxxx,
individually ("Xxxxxx") (Xxxx and Xxxxxx are sometimes referred to herein
collectively as the "Consulting Principals").
PRELIMINARY RECITALS
WHEREAS, Helix, headquartered in Baton Rouge, Louisiana, is a publicly
owned biotechnology company which is engaged in (i) developing, testing,
patenting, and manufacturing synthetic bioactive peptides (small proteins)
having applications in the pharmaceutical and health care fields, and (ii)
licensing its proprietary technology and in seeking strategic corporate
alliances for further development and commercialization of its technology
(collectively, the "Business"), and
WHEREAS, Helix desires outside professional assistance in various areas
of strategic and financial planning and believes that Consultant has experience
and expertise that will be valuable to Helix, and
WHEREAS, Helix desires to engage Consultant as a consultant, and
Consultant desires to perform consulting services for Helix, under the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
of the parties hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Consulting.
1.1 Consulting Services. Helix hereby engages Consultant, and
Consultant hereby accepts such engagement and agrees to serve as consultant to
Helix concerning the Business for a period of two (2) years, beginning on the
date hereof (the "Consulting Period"). In connection with the performance of its
duties, Consultant shall (i) have access to Helix's offices, library, equipment,
instruments, personnel and other resources, (ii) perform and keep records of its
work in a manner compatible with Helix's accounting and other standard reporting
and information systems, (iii) use Helix's professionals to the extent such work
requires staffing other than Consultant, such use being subject to availability
of staff or resource and shall be coordinated with other work of Helix in a
timely fashion, and (iv) cause Consultant's duties hereunder to be performed
primarily by the Consulting Principals. As members of the Board of Directors of
Helix, the Consulting Principals shall be covered by Helix's directors' and
officers' liability insurance policy.
28
1.2 Duties. Consultant shall faithfully and to the best of its
ability perform the duties assigned by the Board of Directors of Helix and shall
serve under the direction of the President of Helix. These duties shall include,
without limitation, the following duties:
(a) strategic planning,
(b) recruitment of key scientists and management personnel,
(c) assisting Helix in licensing its technology and developing
joint ventures and other strategic alliances,
(d) helping to restore Helix's stock to active trading,
(e) enhancing shareholder value, and
(f) reporting on a quarterly basis in summary written form,
Consultant's progress in respect of duties assigned by
Board.
1.3 Relationship of Parties. Consultant shall be deemed an
independent contractor and not an employee of Helix. All letterhead, business
cards and promotional materials used or distributed by Consultant shall present
Consultant as a business consultant to, and not an employee or principal of,
Helix. Consultant shall be responsible for all taxes associated with payment
hereunder, including but not limited to income taxes and social security taxes.
1.4 Expenses. All ordinary and reasonable out-of-pocket expenses
incurred by Consultant in connection with the performance of Consultant's
services as assigned pursuant to Section 1.2 above, including reasonable travel
and entertainment expenses, shall be reimbursed to Consultant by Helix, provided
that Consultant shall have submitted an invoice together with other
documentation of such expenses as Helix may reasonably require.
1.5 Compensation. In consideration for the services heretofore
rendered and hereafter to be rendered by Consultant, its agreement not to
compete with Helix and its agreement to promote services for and through Helix
during the Consulting Period, Helix shall:
(a) issue to Consultant 40,000 shares of Helix's common stock
("Helix Stock") upon the execution of this Agreement.
(b) issue to Consultant 40,000 shares of Helix Stock upon the
first anniversary of the execution of this Agreement.
(c) award Consultant a bonus of Helix Stock, based upon the
Triggering Event (as defined herein) at any time during the term of this
Agreement, and issued within ten business days of the day on which
Consultant notifies Helix of the occurrence of a Triggering Event, in
accordance with the following Bonus Schedule if Consultant continues to
be engaged by Helix (or an affiliate):
BONUS SCHEDULE
29
Triggering Event Stock Price Bonus Amount
(Dollars per share) (Number of Shares of Helix Stock)
---------------------------- ---------------------------------
2 1/2 60,000
2 7/8 60,000
3 5/8 80,000
4 1/4 80,000
4 7/8 80,000
5 3/8 80,000
5 7/8 100,000
The "Triggering Event Stock Price" of Helix Stock shall be determined by
reference to the bid and ask prices for shares of such stock as reported
on any stock exchange, the Nasdaq, or on the OTC bulletin board
quotation system. For each Triggering Event Stock Price set forth above,
the subject "Triggering Event" is the first to occur of the following:
(i) the first time after November 1, 1999 that the average between the
closing bid and ask price for Helix Stock is equal to or exceeds that
applicable Triggering Event Stock Price for a period of six consecutive
business days; or (ii) the first time after November 1, 1999 that an
aggregate volume of 80,000 or more shares of Helix Stock are traded over
a period of three consecutive business days at a price equal to or
greater than the applicable Triggering Event Stock Price. All Helix
Stock to be awarded to Consultant pursuant to this Agreement shall be
duly issued and free and clear of all liens, liabilities or encumbrances
(other than the restrictions resulting or related to its unregistered
status).
(d) Within six (6) months of the date hereof, Helix agrees to use
its best efforts to file a registration statement with the SEC on Form
S-3 covering all shares of Helix Stock which have been issued to
Consultant prior to such filing; and at three additional and consecutive
intervals of 6 months each file registration statements on Form S-3 to
cover shares not previously registered but issued to Consultant pursuant
to this Agreement. Notwithstanding the foregoing, Helix agrees upon
written request from Consultant to accelerate the timing of S-3 filings
after the first filing as follows: (i) a second filing upon issuance to
Consultant of at least 160,000 shares of Helix Stock which have not
previously been registered; (ii) a third filing upon issuance to
Consultant of at least an additional 160,000 shares not previously
registered; and (iii) a fourth filing at such time as shares are issued
to Consultant pursuant to occurrence of the last Triggering Event during
the term of this Agreement. In no event shall Helix be required to file
more than four S-3 registration statements during the term of this
Agreement.
(e) In the event of any change in the outstanding shares of
common stock by reason of any stock dividend or split, recapitalization,
merger, consolidation, combination or exchange of shares or other
similar corporate change, the maximum aggregate number and class of
shares of common stock which may be delivered to Consultant hereunder
will be equitably adjusted for such event. Furthermore, if there is an
adjustment in the number of shares, no fraction of a share will be
delivered with respect to the stock, although Helix will pay to
Consultant, in cash and in lieu thereof, the fair market value of such
fractional share.
(1) Helix represents that as of the execution of this Agreement,
Helix has no
30
outstanding stock other than common stock.
1.6 Restricted Stock
(a) Consultant recognizes and understands that the shares of
Helix Stock to be issued to Consultant hereunder (the "securities") will
not upon initial issuance be registered under the Securities Act of 1933
("Securities Act"), or under the securities laws of any state (the
"securities laws"). The securities are not being so registered in
reliance upon exemptions from the Securities Act and the securities laws
which are predicated, in part, on the representations, warranties and
agreements of the Consultant contained herein.
(b) Consultant represents and warrants that (i) each of the
Consulting Principals has knowledge and experience in business, finance,
securities and investments, such experience being based on actual
participation therein, (ii) each of the Consulting Principals is capable
of evaluating the merits and risks of an investment in the Helix Stock
and the suitability thereof as an investment therefor, (iii) each of the
Consulting Principals is an experienced and sophisticated investor in
investments, including investments similar to that of the Helix Stock,
(iv) Helix Stock to be acquired by it will be acquired solely for
investment and not with a view toward resale or redistribution in
violation of the securities laws, and no assurances have been made
concerning the future results of Helix or as to the value of the Helix
Stock, (v) it (and each of the Consulting Principals) is an "accredited
investor" within the meaning of Regulation D promulgated by the United
States Securities and Exchange Commission (the "Commission") pursuant to
the Securities Act, and (vi) the Consulting Principals are the sole
members/shareholders of Consultant.
(c) Consultant has consulted with its own counsel in regard to
the securities laws and is fully aware (i) of the circumstances under
which he is required to hold the securities, (ii) of the limitations on
the transfer or disposition of the securities, and (iii) that the
securities must be held indefinitely unless the transfer thereof is
registered under the securities laws or an exemption from registration
is available.
(d) Consultant has been furnished with a copy of the Annual
Report on Form 10-KSB of Helix filed with the Commission under the
Securities Exchange Act of 1934, as amended, for the fiscal year ended
December 31, 1998, and the Form 10-QSB quarterly report for the period
ended March 31, 1999. Helix has made available to Consultant the
opportunity to ask questions and receive answers concerning the terms
and conditions of the transactions contemplated by this Agreement and to
obtain any additional information which they posses or could reasonably
acquire the purpose of verifying the accuracy of the information
furnished to Consultant as set forth herein or for the purpose of
considering the transactions contemplated hereby. Helix has offered to,
and agrees during the term of this Agreement, make available to
Consultant upon request at any time all exhibits filed by Helix with the
Commission as part of any of the reports filed therewith.
1.7 Restrictive Covenant. During the term of this Agreement and
for a period of two years thereafter, neither Consultant nor any of the
Consulting Principals shall either as an individual on his own account; as a
partner, joint venturer, consultant, agent, salesman for any person; as an
officer, director or stockholder (other than a beneficial holder of not more
than 5% of the outstanding
31
voting stock of a company having at least 250 holders of voting stock) of a
corporation; or otherwise, directly or indirectly:
(a) enter into or engage in any business or consult with any
business or entity competitive with Helix within any area of the United
States in which Helix is then doing business;
(b) solicit or attempt to solicit any of Helix customers with
whom Consultant has had contact as a Consultant or employee of Helix
with the intent or purpose to perform for such customer the same or
similar services which Consultant performed for such customer during the
term of his service hereunder or employment by Helix;
(c) employ or solicit, or attempt to employ or solicit, for
himself or any third party, the employment of any of Helix's employees;
or
(d) induce or attempt to induce any employee, consultant or agent
of Helix to discontinue services to Helix.
2. Assignment. No party hereto may assign or delegate any of its rights
or obligations hereunder without the prior written consent of the other party
hereto. Except as otherwise expressly provided herein, all covenants and
agreements contained in this Agreement by or on behalf of any of the parties
hereto shall be binding and inure to the benefit of the respective legal
representatives, heirs, successors affiliates and assigns of the parties hereto,
whether so expressed or not.
3. Severability. If any provision of this Agreement is held to be
unenforceable for any reason, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the parties to the extent possible.
In any event, all other provisions of this Agreement shall be deemed valid and
enforceable to the full extent.
4. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same Agreement.
5. Descriptive Headings: Interpretation. The descriptive headings in
this Agreement are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement. The use of the word "including" in this Agreement shall be by way of
example rather than by limitation.
6. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been duly given if (i) delivered personally
to the recipient, (ii) sent to the recipient by reputable express courier
service (charges prepaid) or mailed to the recipient by certified or registered
mail, return receipt and postage prepaid, or (iii) transmitted by telecopy to
the recipient with a confirmation copy to follow the next day to be delivered by
overnight carrier. Such notices, demands and other communication shall be sent
to the addresses indicated below:
(a) If to Consultant, Xxxx and/or Xxxxxx:
32
Xxxx-Xxxxxx Ventures L.L.C.
000 Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
E-mail Address: xxxxxxx@xxxxxx.xxx
(b) If to Helix:
Helix Biomedix, Inc.
0000 Xxxx Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
E-mail Address:
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party. The
effective date of such notice shall be (w) the date such notice is personally
delivered, (x) three days after the date of mailing if sent by certified or
registered mail, (y) one day after date of delivery to the overnight courier if
sent by overnight courier or (z) the next business day after the date of
transmission by telecopy or e-mail.
7. Confidential Information and Discoveries. Consultant and each of the
Consulting Principals agree that all information of a technical or business
nature such as know-how, trade secrets, secret business information, plans,
data, processes, techniques, customer information, inventions, discoveries,
formulae, patterns, devices, etc., ("Confidential Information") pertaining to
the business of Helix, is a valuable business property right of Helix.
Consultant and the Consulting Principals agree that such Confidential
Information, whether in written, verbal or model form, shall not be disclosed to
anyone outside the employment of Helix or otherwise used by Consultant or the
Consulting Principals for any purpose other than fulfillment of their respective
obligations under this Agreement, without the express authorization of Helix.
Confidential Information does not include information which Consultant or the
Consulting Principals can demonstrate (i) has become generally available to the
public other than as a result of a disclosure by Consultant or the Consulting
Principals, (ii) has become available to Consultant or the Consulting Principals
on a non-confidential basis from a source other than Helix, provided such source
is not bound by a confidentiality agreement with Helix or otherwise prohibited
from transmitting the information to Consultant or the Consulting Principals by
a contractual, legal or fiduciary obligation.
Any and all improvements, inventions, discoveries, formulae or processes
in any way related to Helix's business which Consultant or the Consulting
Principals may conceive or make during his regular working hours or otherwise
shall be the sole and exclusive property of Helix and Consultant and the
Consulting Principals will disclose the same to Helix and will, whenever
requested by Helix to do so (either during the terms of this Agreement or
thereafter), execute and assign any and all applications, assignments and/or
other instruments and do all things which Helix may deem necessary or
appropriate in order to apply for, obtain, maintain, enforce and defend patents,
copyrights, trademarks or other forms of protection, or in order to assign and
convey or otherwise make available to Helix the sole and exclusive right, title
and interest in and to said improvements, inventions, discoveries, formulae,
processes, applications or patents.
33
No provision in this Agreement is intended to require assignment of any
of the rights of Consultant or the Consulting Principals in an invention if no
equipment, supplies, facilities, or trade secret information of Helix was used,
and the invention was developed entirely on the Consultant's or Consulting
Principals' own time; and the invention does not relate to the business of Helix
or to Helix's actual or demonstrably anticipated research or development; and
does not result from any work performed by the Consultant or the Consulting
Principals for Helix.
The provisions of this Section 7 shall survive the termination of this
Agreement.
8. Return of Documents. Upon the termination of this Agreement for any
reason, Consultant shall forthwith return and deliver to Helix and shall not
retain any original or copies of any books, papers, price lists or customer
contracts, bids or customer lists, files, books of account, notebooks and other
documents and data (in printed, audio, video, electronic or other form) relating
to the performance of services rendered by Consultant hereunder, all of which
materials are hereby agreed to be the property of Helix.
9. Preliminary Recitals. The Preliminary Recitals set forth in the
preamble hereto are hereby incorporated and made part of this Agreement.
10. Entire Agreement. Except as otherwise expressly set forth herein,
this Agreement sets forth the entire understanding of the parties, and
supersedes and preempts all prior oral or written understandings and agreements
with respect to the subject matter hereof.
11. Governing Law. This Agreement shall be construed and enforced in
accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Agreement shall be governed by, the laws
of the State of Delaware.
12. Representations and Warranties.
12.1 Helix represents and warrants that: (i) Helix is a
corporation, duly organized, validly existing and in good standing under the
laws of the State of Colorado, has duly authorized the execution and performance
of this Agreement, and such execution and performance will not violate its
Articles of Incorporation, Bylaws, or any contract or agreement by which it is
bound; and (ii) This Agreement is valid and enforceable against Helix in
accordance with its terms, and each instrument to be executed by Helix pursuant
to this Agreement will, when executed and delivered, be enforceable in
accordance with its terms, subject to bankruptcy, insolvency and similar laws
affecting creditors' rights generally.
12.2 Consultant and the Consulting Principals jointly and
severally represent and warrant that: (i) Consultant is a limited liability
company, duly organized, validly existing and in good standing under the laws of
the State of Delaware, has duly authorized the execution and performance of this
Agreement, and such execution and performance will not violate its Articles of
Organization, Operating Agreement, or any contract or agreement by which it is
bound; and (ii) This Agreement is valid and enforceable against Consultant and
the Consulting Principals in accordance with its terms, and each instrument to
be executed by Consultant and the Consulting Principals pursuant to this
Agreement
34
will, when executed and delivered, be enforceable in accordance with its terms,
subject to bankruptcy, insolvency and similar laws affecting creditors' rights
generally.
13. Compliance with Laws. Consultant shall comply with all federal,
state, and local laws, regulations, ordinances, orders, decrees, resolutions,
and other acts of any governmental entity, including, but not limited to,
securities laws and regulations that are applicable to this Agreement and the
work and services performed or provided hereunder.
14. Attorney's Fees. If a dispute arises relating to the performance of
the obligations of either Consultant (or the Consulting Principals) or Helix
pursuant to the terms of this Agreement and legal or other costs are incurred,
the prevailing party shall be entitled to recover all reasonable costs incurred
in the defense or prosecution of the claim, including court costs, reasonable
attorney's fees, and other claim-related expenses.
15. Termination. This Agreement may be terminated prior to the
expiration of the two year term:
(a) by the mutual written consent of Helix and Consultant;
(b) by Consultant if Helix materially breaches the terms of this
Agreement and fails to cure such breach within thirty (30) days
following its receipt of written notice of such breach; or
(c) by Helix if Consultant or either of the Consulting Principals
materially breaches the terms of this Agreement and fails to
cure such breach within thirty (30) days following its/his/their
receipt of written notice of such breach.
In the event of notification by either Helix or Consultant (or
Consulting Principals) to the other party of breach of this Agreement, shares of
Helix Stock thereafter issued to Consultant pursuant to Section 1.5
(Compensation) above shall be placed in escrow until either of the following
occurs: (i) the parties agree the alleged breach or breaches do not exist or
have been cured, or (ii) the matter is litigated and resolved by final judgment
in a court of competent jurisdiction. In the event of litigation, if Helix is
held to have breached the Agreement, the escrowed shares shall promptly be
released to Consultant and Helix's obligations to Consultant under this
Agreement shall continue; if Consultant or the Consulting Principals is/are held
to have breached the Agreement, then the escrowed shares shall be released to
Helix for cancellation and this Agreement shall be terminated with no further
obligations of Helix to issue Helix Stock to Consultant, whereupon the
Consulting Principals shall resign from the Board of Directors of Helix as of
the effective date of termination of this Agreement.
35
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
HELIX BIOMEDIX, INC.
By:
-------------------------------------
Name:
------------------------------------
Title:
----------------------------------
CONSULTANT:
XXXX-XXXXXX VENTURES LLC
By:
-------------------------------------
Name:
------------------------------------
Title:
----------------------------------
By:
-------------------------------------
Xxxxx Xxxx, an individual (but
only with respect to the
representations, warranties and
covenants made by such individual
in his individual capacity
hereunder)
By:
-------------------------------------
Xxxxxxx X. Xxxxxx, an individual
(but only with respect to the
representations, warranties and
covenants made by such individual
in his individual capacity
hereunder)
36
AGREEMENT TO RESTRUCTURE DEBT
This AGREEMENT TO RESTRUCTURE DEBT (this "Agreement") is entered into as
of September 30, 1999, by and among HELIX BIOMEDIX, INC., a Colorado corporation
("HBMCO") and its wholly owned subsidiary, HELIX BIOMEDIX, INC., a Louisiana
corporation ("HBMLA") (hereinafter referred to collectively as "HELIX"), and
Xxxxx X. Xxxxxxx, a resident of Louisiana ("XXXXXXX").
PRELIMINARY RECITALS
WHEREAS, HBMCO is a publicly owned biotechnology company substantially
dependent upon both private and public financing to fund the development and
commercialization of its technology, and
WHEREAS, HELIX is currently indebted to XXXXXXX in the aggregate amount
of $552,386.00 ("INDEBTEDNESS"), a portion of which indebtedness is evidenced by
a promissory note ("DEMAND NOTE") dated June 30, 1999, in the original principal
amount of $462,218, a copy of which DEMAND NOTE is attached hereto as Exhibit A,
WHEREAS, the parties hereto are mutually desirous of restructuring the
aforesaid INDEBTEDNESS of HELIX to XXXXXXX to improve the financial balance
sheet of HELIX and to facilitate HELIX's ability to raise capital and to seek
licensees for its proprietary technology,
NOW, THEREFORE in consideration of the premises, the mutual covenants of
the parties hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. CANCELLATION AND REPLACEMENT OF THE DEMAND NOTE.
1.1 Cancellation of the DEMAND NOTE (Exhibit A) XXXXXXX agrees to the
cancellation of the aforesaid DEMAND NOTE (Exhibit A) and herewith delivers the
DEMAND NOTE to HELIX marked "CANCELED"; and HELIX hereby acknowledges receipt of
same for cancellation and issuance to XXXXXXX of three (3) replacement notes in
the aggregate principal amount of $489,462.00 ("the REPLACEMENT NOTES").
1.2 Issuance of REPLACEMENT NOTES (Exhibits B, C, D) HELIX agrees to
issue to XXXXXXX three (3) REPLACEMENT NOTES, each note having equal principal
amounts of $163,154.00 with maturities from the date hereof of one (1), two (2),
and three (3) years, respectively. The forms of each of the three REPLACEMENT
NOTES are attached hereto and made a part hereof as Exhibit B, Exhibit C, and
Exhibit D. HELIX
1
37
herewith delivers to XXXXXXX the originals of these three notes, and XXXXXXX
hereby acknowledges receipt of same.
HELIX further agrees that, so long as any balance of principal or
accrued interest remains unpaid on any of the three REPLACEMENT NOTES, it shall
not grant any security interest for any money borrowed from any other party,
without the express written consent of XXXXXXX or a holder in due course of any
of the REPLACEMENT NOTES.
2. PAYMENT BY HELIX OF THE REMAINING INDEBTEDNESS.
Upon the release of funds escrowed with Whitney National Bank, HELIX
hereby agrees to pay in cash to XXXXXXX the remaining INDEBTEDNESS in the amount
of $62,924.00.
3. OTHER CONSIDERATIONS.
3.1 Agreement to Cancel Warrants (Exhibit E) The parties hereto agree to
the cancellation of warrants for the purchase of 87,200 shares of common stock
of HBMCO, which warrants were granted to the Estate of Xxx X. Xxxxxxx by
resolutions of the Executive Committee of HBMCO adopted on December 29, 1998.
XXXXXXX is the executor and sole beneficiary of said estate, and has agreed to
cancellation of said warrants in a separate agreement of this date entitled
"Agreement to Cancel Warrants", a copy of which is attached hereto as Exhibit E
and incorporated as a part hereof.
3.2 Xxxxxxx Employment Agreement (Exhibit F). In further consideration
of this "Agreement to Restructure Debt" the parties hereto agree that, so long
as any balance of principal or accrued interest remains unpaid on any of the
REPLACEMENT NOTES, XXXXXXX, at his option, shall remain as an employee or
consultant of HELIX on terms and conditions which are fair and reasonable by
industry standards. Contemporaneously with execution of this Agreement XXXXXXX
and HELIX have entered into that certain "Employment Agreement," a copy of which
is attached hereto and made a part hereof as Exhibit F.
3.3 Representation on the HELIX Board of Directors. The parties hereto
further agree that, so long as any balance of principal or accrued interest
remains unpaid on any of the REPLACEMENT NOTES, XXXXXXX (at his option) shall be
entitled to representation by himself, or his nominee, to one seat on the Board
of Directors of HBMCO.
4. MISCELLANEOUS PROVISIONS
4.1 Assignment This Agreement shall be binding upon the legal and
personal representatives, heirs, successors and assigns of the parties.
2
38
4.2 Severability Should any provision of this Agreement be unenforceable
in the law, the remainder of the Agreement shall not be affected thereby.
4.3 Counterparts This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which taken
together shall constitute one and the same instrument.
4.4 Descriptive Headings: Interpretation The headings used in this
Agreement are for convenience only and do not constitute matters to be construed
in interpreting this Agreement. Except where the context indicates otherwise,
words in the singular shall include the plural, and words in the masculine
gender shall include the neuter and vice versa.
4.5 Preliminary Recitals The Preliminary Recitals set forth in the
preamble hereto are hereby incorporated and made part of this Agreement.
4.6 Waivers No waiver of any provision of this Agreement shall be valid
unless the same is in writing and signed by the party against which it is sought
to be enforced. No waiver of any provision of this Agreement at any time shall
be deemed a waiver of any other provision of this Agreement.
4.7 Modification of Agreement No modification of this Agreement shall be
binding unless in writing and signed by the party against whom or which it is
sought to be enforced.
4.8 Entire Agreement This Agreement, including the Exhibits attached
hereto, is the entire agreement among the parties hereto relating to the subject
matter hereof. It supersedes all prior agreements pertaining to the subject
matter hereof and may not be amended except in accordance with a writing
executed by or on behalf of all the parties.
4.9 Governing Law This Agreement shall be governed and construed in
accordance with the laws of the State of Louisiana.
4.10 Attorney's Fees If any action or legal proceeding is brought for
the enforcement of this Agreement, or because of an alleged breach of this
Agreement, the successful prevailing party shall be entitled to recover its
reasonable attorney's fees, court costs, and reasonable litigation expenses
incurred in connection with such action or proceeding in addition to any other
relief which it is entitled, from the losing party.
4.11 Representations and Warranties HELIX represents and warrants that
(i) HBMCO is a corporation, duly organized, validly existing and in good
standing under the laws of the State of Colorado, has duly authorized the
execution and performance of this
3
39
Agreement, and such execution and performance will not violate its Articles of
Incorporation, By Laws, or any contract or agreement by which it is bound; and
(ii) this Agreement is valid and enforceable against HELIX in accordance with
its terms, and each instrument to be executed by HELIX pursuant to this
Agreement, will, when executed and delivered, be enforceable in accordance with
its terms, subject to bankruptcy, insolvency and similar laws affecting
creditors' rights generally.
XXXXXXX represents and warrants that delivery herewith of (i) the
REPLACEMENT NOTES and (ii) cash payment of the remaining INDEBTEDNESS satisfies
in full the HELIX debt obligations to XXXXXXX as of the date hereof, and that to
the best of his knowledge and belief there are no remaining debt obligations of
HELIX to the Estate of Xxx Xxxxxxx or to Arrowhead Technology Associates, Inc.
XXXXXXX further represents and warrants that this Agreement is valid and
enforceable against XXXXXXX in accordance with its terms, and will, when
executed and delivered, be enforceable in accordance with its terms.
4.12 DEFAULT. NO PARTY HERETO SHALL BE DEEMED TO BE IN DEFAULT OF ITS
OBLIGATIONS UNDER THIS AGREEMENT UNLESS AND UNTIL THE AGGRIEVED PARTY HAS
PROVIDED WRITTEN NOTICE OF A BREACH OR ALLEGED BREACH TO THE DEFAULTING PARTY,
AND THE DEFAULTING PARTY HAS FAILED TO CURE THE BREACH WITHIN 30 DAYS OF THE
RECEIPT OF THE NOTICE OF THE BREACH. UPON LEARNING OF A BREACH OF THIS
AGREEMENT, THE AGGRIEVED PARTY SHALL, BY CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, NOTIFY THE DEFAULTING PARTY THAT IT IS IN BREACH OF ITS AGREEMENT,
AND IN SAID NOTICE SHALL PROVIDE SUFFICIENT DETAIL SO THAT DEFAULTING PARTY IS
AWARE OF THE NATURE OF THE DEFAULT. IN THE EVENT THE DEFAULTING PARTY FAILS TO
CURE SUCH DEFAULT WITHIN SAID THIRTY DAY PERIOD, THE AGGRIEVED PARTY SHALL BE
ENTITLED TO ANY EQUITABLE OR MONETARY REMEDIES OTHERWISE PROVIDED BY THE LAW,
INCLUDING, WITHOUT LIMITATION, RECOVERY FOR REASONABLE ATTORNEY'S FEES AND COSTS
INCURRED TO ENFORCE HIS OR ITS RIGHTS HEREUNDER. THE PARTIES SPECIFICALLY AGREE
THAT IN THE EVENT HELIX BREACHES ITS OBLIGATIONS UNDER SECTION 3.3 HEREOF, AND
FAILS TO CURE SUCH BREACH WITHIN THIRTY (30) DAYS FOLLOWING WRITTEN NOTICE
THEREOF, THEN XXXXXXX MAY AT HIS OPTION ACCELERATE THE INDEBTEDNESS EVIDENCED BY
THE REPLACEMENT NOTES.
4.13 Notices All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been duly given if (i) delivered personally
to the recipient, (ii) sent to the recipient by reputable express courier
service (charges prepaid) or mailed to the recipient by certified or registered
mail, return receipt and postage prepaid, or (iii) transmitted by telecopy to
the recipient with a confirmation copy to follow the next day to be delivered by
overnight carrier. Such notices, demands and other communication shall be sent
to the
4
40
addresses indicated below:
a) To HELIX
Helix Biomedix, Inc.
0000 Xxxx Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attn: President
FAX No.: ________________________
E-mail Address: _____________________________
b) To XXXXXXX
Xxxxx X. Xxxxxxx
0000 Xxxx Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
FAX No.: (000) 000-0000
E-mail Address:_______________________________
4.14 Termination of Existing Liens Upon delivery of the executed
REPLACEMENT NOTES, XXXXXXX agrees to terminate and cancel any and all liens and
security interests which secure the INDEBTEDNESS, including security interests
in the assets of HBMCO and/or a pledge of the stock of HBLMA.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
HELIX BIOMEDIX, INC. (of Colorado)
By:
---------------------------------
Xxxxx X. Xxxxxxx, President
5
41
HELIX BIOMEDIX, INC. of (Louisiana)
By:
---------------------------------
Xxxxx X. Xxxxxxx, President
-----------------------------
Xxxxx X. Xxxxxxx, Individually
6
42
PROMISSORY NOTE
OF
HELIX BIOMEDIX, INC. (CO) AND HELIX BIOMEDIX, INC. (LA)
AMOUNT: $163,154.00
NOTE NO: KPL-12 DATE: SEPTEMBER 30, 1999
For value received, Helix BioMedix, Inc. (CO), a Colorado corporation,
and its wholly owned subsidiary, Helix BioMedix, Inc. (LA), a Louisiana
corporation (hereinafter collectively referred to as "MAKERS"), promise to pay
to the order of XXXXX X. XXXXXXX, a Louisiana resident (hereinafter "OWNER") the
principal sum of ONE HUNDRED SIXTY-THREE THOUSAND ONE HUNDRED FIFTY-FOUR AND
NO/100 DOLLARS ($163,154.00) together with simple interest thereon from the date
hereof at the rate of eight percent (8%) per annum, such principal and interest
being payable at the principal office of OWNER in Baton Rouge, Louisiana, or at
such other place either within or without the State as OWNER may from time to
time designate.
Interest accrued on the principal balance of this note shall be paid in
cash to the OWNER every ninety (90) days from the date hereof through the
maturity date. The full principal amount of this note and remaining interest
accrued thereon shall be due and payable in cash to the owner one (1) year from
the date of this note. Prepayment of interest and/or principal may be made by
MAKERS at any time prior to the due dates without penalty. All payments of
interest and principal shall be in lawful money of the United States.
This promissory note is designated as Note No. KPL-12. As of the date
hereof MAKERS have issued to OWNER two other promissory notes of same principal
amount ($163,154.00 each), which other notes are designated respectively as Note
No. KPL-13 (having a two year maturity) and Note No. KPL-14 (having a three year
maturity).
In the event that MAKERS shall default on payment of any interest or
principal due on this note (Note No. KPL-12) or on either Note No. KPL-13 or
Note No. KPL-14, and MAKERS fail to cure such default within thirty (30) days
following receipt by MAKERS of written notice thereof, then OWNER shall be
entitled, at his option, to any or all of the following: (i) accelerate the
three notes and demand full payment of the principal and
1
43
interest due on each, (ii) secure from MAKERS a security interest in all the
technology and intellectual property rights owned by MAKERS, (iii) receive from
MAKERS a security interest in 100% of the capital stock of Helix BioMedix, Inc.
(LA), and (iv) receive an assignment from MAKERS of any and all interest in
revenues and/or receivables derived from the intellectual property owned by
MAKERS. Notwithstanding the foregoing, MAKERS and OWNER stipulate and agree that
the remedies reflected in (ii), (iii) and (iv) above are personal to OWNER and
his heirs and shall not be available to and may not be exercised by any
subsequent holder(s) of this note (other than OWNER's heirs).
MAKERS further agree that, so long as any balance of principal or
accrued interest remains unpaid on any of the three notes designated above,
MAKERS shall not grant any security interest for any money borrowed from any
other party than OWNER, without the express written consent of OWNER.
It is hereby agreed that if default be made in any required payment of
principal or interest on this promissory note as set forth above, then, upon
notification and demand from OWNER by certified mail, MAKERS shall have thirty
(30) days thereafter to remedy such default, or the entire amount of the
principal and interest due on this note shall become and be due and collectible,
with interest accruing thereon at the rate of then percent (10%) per annum from
the date of notice of default until the remaining balance of principal and all
interest thereon are paid in full.
Except as otherwise provided herein, any future holder of this note
shall be entitled to all of the rights granted herein to OWNER.
The MAKERS of this note hereby waive presentation for payment, notice of
non-payment and protest, and consent that, after demand, the time of payment may
be extended without notice thereof, and in the event of any default in the
payment of the principal sum or of the interest which shall accrue thereon, or
any part of either, as above described, and this note is referred to an attorney
for collection, they further agree to pay all attorney's fees incurred in the
collection of this note, or any portion hereof, including interest, which fees
are hereby fixed at ten percent (10%) of the amount to be collected.
HELIX BIOMEDIX, INC. (CO) HELIX BIOMEDIX, INC. (LA)
BY: BY:
-------------------------- ---------------------------------
XXXXX X. XXXXXXX, PRESIDENT XXXXX X. XXXXXXX, PRESIDENT
2
44
PROMISSORY NOTE
OF
HELIX BIOMEDIX, INC. (CO) AND HELIX BIOMEDIX, INC. (LA)
AMOUNT: $163,154.00
NOTE NO: KPL-13 DATE: SEPTEMBER 30, 1999
For value received, Helix BioMedix, Inc. (CO), a Colorado corporation,
and its wholly owned subsidiary, Helix BioMedix, Inc. (LA), a Louisiana
corporation, (hereinafter collectively referred to as "MAKERS") promise to pay
to the order of XXXXX X. XXXXXXX, a Louisiana resident, (hereinafter "OWNER")
the principal sum of ONE HUNDRED SIXTY THREE THOUSAND ONE HUNDRED FIFTY FOUR AND
NO/100 DOLLARS ($163,154.00) together with simple interest thereon from the date
hereof at the rate of eight percent (8%) per annum, such principal and interest
being payable at the principal office of OWNER in Baton Rouge, Louisiana, or at
such other place either within or without the State as OWNER may from time to
time designate.
Interest accrued on the principal balance of this note shall be paid in
cash to the OWNER every ninety (90) days from the date hereof through the
maturity date. The full principal amount of this note and remaining interest
accrued thereon shall be due and payable in cash to the owner two (2) years from
the date of this note. Prepayment of interest and/or principal may be made by
MAKERS at any time prior to the due dates without penalty. All payments of
interest of and principal shall be in lawful money of the United States.
This promissory note is designated as Note No. KPL-13. As of the date
hereof MAKERS have issued to OWNER two other promissory notes of same principal
amount ($163,154.00 each), which other notes are designated respectively as Note
No. KPL-12 (having a one year maturity) and Note No. KPL-14 (having a three year
maturity).
In the event that MAKERS shall default on payment of any interest or
principal due on this note (Note No. KPL-13) or on either Note No. KPL-12 or
Note No. KPL-14 and MAKERS fail to cure such default within thirty (30) days
following receipt by MAKERS of written notice thereof, then the OWNER shall be
entitled, at his option, to any or all of the following: (i) accelerate the
three notes and demand full payment of the principal and interest due on each,
(ii) secure from MAKERS a security interest in all the technology and
intellectual property rights owned by MAKERS, (iii) receive from MAKERS a
security
1
45
interest in 100% of the capital stock of Helix BioMedix, Inc. (LA), and (iv)
receive an assignment from MAKERS of any and all interest in revenues and/or
receivables derived from the intellectual property owned by MAKERS.
Notwithstanding the foregoing, MAKERS and OWNER stipulate and agree that the
remedies reflected in (ii), (iii) and (iv) above are personal to OWNER and his
heirs and shall not be available to and may not be exercised by any subsequent
holder(s) of this note (other than OWNER's heirs).
MAKERS further agree that, so long as any balance of principal or
accrued interest remains unpaid on any of the three notes designated above,
MAKERS shall not grant any security interest for any money borrowed from any
other party than OWNER, without the express written consent of OWNER.
It is hereby agreed that if default be made in any required payment of
principal or interest on this promissory note as set forth above, then, upon
notification and demand from OWNER by certified mail, MAKERS shall have thirty
(30) days thereafter to remedy such default, or the entire amount of the
principal and interest due on this note shall become and be due and collectible,
with interest accruing thereon at the rate of ten percent (10%) per annum from
the date of notice of default until the remaining balance of principal and all
interest thereon are paid in full.
Except as otherwise provided herein, any future holder of this note
shall be entitled to all of the rights granted herein to OWNER.
The MAKERS of this note hereby waive presentation for payment, notice of
non-payment and protest, and consent that, after demand, the time of payment may
be extended without notice thereof, and in the event of any default in the
payment of the principal sum or of the interest which shall accrue thereon, or
any part of either, as above described, and this note is referred to an attorney
for collection, they further agree to pay all attorney's fees incurred in the
collection of this note, or any portion hereof, including interest, which fees
are hereby fixed at ten percent (10%) of the amount to be collected.
HELIX BIOMEDIX, INC. (CO) AND HELIX BIOMEDIX, INC. (LA)
BY: BY:
----------------------------- ---------------------------------
XXXXX X. XXXXXXX, PRESIDENT XXXXX X. XXXXXXX, PRESIDENT
2
46
PROMISSORY NOTE
OF
HELIX BIOMEDIX, INC. (CO) AND HELIX BIOMEDIX, INC. (LA)
AMOUNT: $163,154.00
NOTE NO: KPL-14 DATE: SEPTEMBER 30, 1999
For value received, Helix BioMedix, Inc. (CO), a Colorado corporation,
and its wholly owned subsidiary, Helix BioMedix, Inc. (LA), a Louisiana
corporation, (hereinafter collectively referred to as "MAKERS") promise to pay
to the order of XXXXX X. XXXXXXX, a Louisiana resident, (hereinafter "OWNER")
the principal sum of ONE HUNDRED SIXTY THREE THOUSAND ONE HUNDRED FIFTY FOUR AND
NO/100 DOLLARS ($163,154.00) together with simple interest thereon from the date
hereof at the rate of eight percent (8%) per annum, such principal and interest
being payable at the principal office of OWNER in Baton Rouge, Louisiana, or at
such other place either within or without the State as OWNER may from time to
time designate.
Interest accrued on the principal balance of this note shall be paid in
cash to the OWNER every ninety (90) days from the date hereof through the
maturity date. The full principal amount of this note and remaining interest
accrued thereon shall be due and payable in cash to the owner three (3) years
from the date of this note. Prepayment of interest and/or principal may be made
by MAKERS at any time prior to the due dates without penalty. All payments of
interest and principal shall be in lawful money of the United States.
This promissory note is designated as Note No. KPL-14. As of the date
hereof MAKERS have issued to OWNER two other promissory notes of same principal
amount ($163,154.00 each), which other notes are designated respectively as Note
No. KPL-12 (having a one year maturity) and Note No. KPL-13 (having a two year
maturity).
In the event that MAKERS shall default on payment of any interest or
principal due on this note (Note No. KPL-14) or on either Note No. KPL-12 or
Note No. KPL-13, and MAKERS fail to cure such default within thirty (30) days
following receipt by MAKERS of written notice thereof, then the OWNER shall be
entitled, at his option, to any or all of the following: (i) accelerate the
three notes and demand full payment of the principal and interest due on each,
(ii) secure from MAKERS a security interest in all the technology and
intellectual property rights owned by MAKERS, (iii) receive from MAKERS a
security interest in 100% of the capital stock of Helix BioMedix, Inc. (LA), and
(iv) receive an
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47
assignment from MAKERS of any and all interest in revenues and/or receivables
derived from the intellectual property owned by MAKERS. Notwithstanding the
foregoing, MAKERS and OWNER stipulate and agree that the remedies reflected in
(ii), (iii) and (iv) above are personal to OWNER and his heirs and shall not be
available to and may not be exercised by any subsequent holder(s) of this note
(other than OWNER's heirs).
MAKERS further agree that, so long as any balance of principal or
accrued interest remains unpaid on any of the three notes designated above,
MAKERS shall not grant any security interest for any money borrowed from any
other party than OWNER, without the express written consent of OWNER.
It is hereby agreed that if default be made in any required payment of
principal or interest on this promissory note as set forth above, then, upon
notification and demand from OWNER by certified mail, MAKERS shall have thirty
(30) days thereafter to remedy such default, or the entire amount of the
principal and interest due on this note shall become and be due and collectible,
with interest accruing thereon at the rate of ten percent (10%) per annum from
the date of notice of default until the remaining balance of principal and all
interest thereon are paid in full.
Except as otherwise provided herein, any future holder of this note
shall be entitled to all of the rights granted herein to OWNER.
The MAKERS of this note hereby waive presentation for payment, notice of
non-payment and protest, and consent that, after demand, the time of payment may
be extended without notice thereof, and in the event of any default in the
payment of the principal sum or of the interest which shall accrue thereon, or
any part of either, as above described, and this note is referred to an attorney
for collection, they further agree to pay all attorney's fees incurred in the
collection of this note, or any portion hereof, including interest, which fees
are hereby fixed at ten percent (10%) of the amount to be collected.
HELIX BIOMEDIX, INC. (CO) AND HELIX BIOMEDIX, INC. (LA)
BY: BY:
--------------------------- ---------------------------------
XXXXX X. XXXXXXX, PRESIDENT XXXXX X. XXXXXXX, PRESIDENT
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48
AMENDED AND RESTATED CONSULTING AGREEMENT
This Agreement, effective for all purposes as of October 1, 1999, is
entered into between Helix BioMedix, Inc., a Colorado corporation (the
"Company"), and Xxxxx Xxxxx, Ph.D. ("Consultant"). The Company desires to obtain
the services of Consultant and Consultant desires to perform services for the
Company upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises herein contained, the parties agree as follows:
AGREEMENT
1. Period of Engagement. The Company hereby engages Consultant as a
consultant to render services to the Company in the position and with the duties
and responsibilities described in Section 2 commencing on October 1, 1999, and
extending for a term of one year thereafter, provided that such term shall
automatically renew for an additional one-year period at the end of such initial
term and each subsequent renewal, unless 90 days prior to the date of such
renewal either party shall give written notice to the other party of
cancellation, and in such event the Consultant's engagement hereunder shall
terminate. The period of time covered by the Consultant's employment hereunder
shall hereafter be referred to as the "Period of Engagement." The Company's
policies as they may be established or amended from time to time in writing
during the Period of Engagement ("Company Policies") shall apply to and govern
the employment relationship between Consultant and the Company, provided that in
the event of any conflict between Company Policies and the terms and conditions
of this Agreement, the term and conditions of this Agreement shall apply.
2. Position, Duties, Responsibilities.
2.1 Position. Consultant hereby accepts the engagement as a
consultant with the Company pursuant to the terms and conditions hereof.
Consultant agrees to serve the Company in the position of Chairman, Scientific
Advisory Board and Vice President - Science. Consultant shall report to the
Chief Executive Officer ("CEO") of the Company. Consultant shall have the powers
and duties commensurate with such position. Consultant shall devote his best
efforts and attention to the performance of the services customarily incident to
such office and to such other services as the Board of Directors ("Board") or
CEO may reasonably request. Without limiting the generality of the foregoing,
Consultant understands that he will be responsible for (i) establishing and
recruiting members to serve on the Scientific Advisory Board of the Company,
(ii) developing strategic alliances, joint ventures and similar relationships
with third parties, (iii) seeking licensees for various applications of the
Company's technology, (iv) seeking grant and contract research support for the
Company, (v) advising the Board with respect to both internal and external
initiatives for continued development of such technology and commercialization
of same; and (vi) assisting management and the Company's consultants in
presentations to enhance shareholder value and the Company's profile in the
financial community.
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2.2 Other Activities. Except upon the prior written consent of
the Board, Consultant shall not during the Period of Engagement engage, directly
or indirectly, in any other business activity (whether or not pursued for
pecuniary advantage) that is or may be competitive with, or that might place him
in a competing position to that of the Company or any other corporation or
entity that directly or indirectly controls, is controlled by, or is under
common control with the Company (as "Affiliated Company"), provided that the
Consultant may engage in the outside scientific/professional activities set
forth on Exhibit A attached hereto.
3. Compensation, Benefits, Expenses.
3.1 Compensation.
(a) Annual Salary. In consideration of the services to be
rendered hereunder, including without limitation services to any Affiliated
Company, Consultant shall be paid an annual salary which, during the first six
months of the Period of Engagement shall be $10,000.00 per month, and during the
latter six months of the Period of Engagement shall be $5,000.00 per month (the
"Salary"). Consultant's Salary shall be payable in equal installments at the
time and pursuant to the procedures regularly established, and as they may be
amended, by the Company during the term of this Agreement. Unless otherwise
agreed in writing by Employer and Consultant, Consultant's salary for any
renewal term(s) of this Agreement shall be based upon an annual salary for full
time employment of $120,000.00.
(b) Bonuses. In addition to his Salary, the Board may, in
its sole discretion, award stock bonuses to Consultant based upon the Board's
assessment of Consultant's performance. Although no bonus is guaranteed, the
parties agree that the following levels and subjective criteria generally
describe the parameters which the Board intends to use in determining whether to
award Consultant a stock bonus and the amount of the bonus for each level of
accomplishment:
Level I: Consultant performs duties hereunder to the
satisfaction of the Board and attains certain early-stage
milestones established by the Board. Potential Bonus:
$25,000 to $150,000*.
Level II: The Board determines that Consultant has excelled
beyond expectations and has attained additional milestones
established by the Board. Potential Bonus: $25,000 to
$150,000*.
Level III: The Board determines that Consultant's performance is
superlative and that Consultant has attained substantially
all of the goals established by the Board. Potential
Bonus: $25,000 to $150,000*.
* The value attributable to such bonus equates to the number of shares of common
stock of the Company comprising such bonus, multiplied by the market price of
such shares on the open market at the time such bonus is approved by the Board.
Anything contained herein to the contrary
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notwithstanding, Consultant acknowledges and agrees that no bonus is guaranteed
and the Board shall in its sole discretion determine the amount and frequency of
any such bonus(es).
3.2 Expenses. The Company shall reimburse Consultant for
reasonable travel and other business expenses incurred by Consultant in the
performance of his duties hereunder in accordance with the Company Policies.
4. Termination of Engagement.
4.1 By Death. The Period of Engagement shall terminate
automatically upon the death of the Consultant. In such event, the Company shall
pay to Consultant's beneficiaries or his estate, as the case may be, any accrued
Salary, any benefits under any plans of the Company in which Consultant is a
participant to the full extent of Consultant's rights under such plans, and any
appropriate business expenses incurred by Consultant in connection with his
duties hereunder, all to the date of termination (collectively "Accrued
Compensation"), but no other compensation or reimbursement of any kind,
including, without limitation, severance compensation, and thereafter, the
Company's obligations hereunder shall terminate.
4.2 By Disability. If the Consultant is prevented from properly
performing his duties hereunder by reason of any physical or mental incapacity
for a period of more than 45 days in the aggregate in any 365-day period, then,
to the extent permitted by law, the Company may terminate the Period of
Engagement on the 45th day of such incapacity. In such event, the Company shall
pay to Consultant all Accrued Compensation through the effective date of
termination, but no other compensation or reimbursement of any kind, including
without limitation, severance compensation, and thereafter the Company's
obligations hereunder shall terminate. Nothing in this Section shall affect
Consultant's rights under any disability plan in which he is a participant.
4.3 By Company for Cause. The Company may terminate the Period of
Engagement for Cause (as defined below) without liability at any time with or
without advance notice to the Consultant. The Company shall pay Consultant all
Accrued Compensation, but no other compensation or reimbursement of any kind,
including without limitation, severance compensation, and thereafter the
Company's obligations hereunder shall terminate. Termination shall be for
"Cause" in the event of the occurrence of any of the following: (i) any action
or failure to act by Consultant which was performed in bad faith and to the
detriment of the Company; (ii) Consultant refuses or fails to act in accordance
with any lawful and proper direction or order of the Board; (iii) Consultant
willfully wantonly disregards performing the duties of employment; (iv)
Consultant is convicted of a felony crime involving moral turpitude; or (v)
Consultant intentionally breaches any material term of this Agreement ; provided
that in the event that any of the foregoing events is capable of being cured,
the Company shall provide written notice to the Consultant describing the nature
of such event and the Consultant shall thereafter have ten (10) business days to
cure such event.
4.4 By Company Without Cause. At any time, the Company may
terminate the Period of Engagement without liability other than as set forth
below, for any reason not specified in Section 4.3 above, by giving ninety (90)
days advance written notice to the Consultant. If the
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Company elects to terminate Consultant pursuant to this Section 4.4, the Company
shall pay to Consultant all Accrued Compensation and shall continue to pay to
Consultant as provided herein Consultant's Salary over the period equal to the
lesser of (i) the remainder of the Period of Engagement (but not less than
ninety (90) days), or (ii) six months from the date of such termination, in
either case less the amount of any compensation for services rendered received
by Consultant from any third party during such period, as severance compensation
and thereafter all obligations of the Company shall terminate.
4.5 Bonus. In no event shall any stock bonus be deemed to be
earned prior to the date such bonus is formally authorized and approved by the
Board. Accordingly, upon termination of this Agreement for any reason,
Consultant shall be entitled only to Accrued Compensation (and to the extent
applicable severance compensation under Section 4.4).
4.6 Termination Obligations. Consultant hereby acknowledges and
agrees that all personal property, including, without limitation, all books,
manuals, records, reports, notes, contracts, lists, and other documents,
proprietary information, copies of any of the foregoing, and equipment furnished
to or prepared by Consultant in the course of or incident to his employment,
belongs to the Company and shall be delivered to the Company upon termination of
the Period of Engagement.
5. Intellectual Property, Confidentiality, Non-Competition.
5.1 Intellectual Property. Consultant agrees to disclose to the
Company promptly, all inventions, discoveries and/or original works of
authorship or compilations thereof (hereinafter referred to as "Technologies")
including without limitation products, processes, designs, formulas,
specifications, prototype, models, samples, economies, reports or manuscripts as
well as all improvements made thereto, that are conceived, developed and/or
reduced to practice by Consultant during the term of this Agreement and within
the scope of work and duties performed by Consultant for the Company. The
Consultant also agrees to assign to the Company Consultant's entire right,
title, and interest in said Technologies and to any patent(s), copyright(s),
trademark(s) or service xxxx(s) which may be issued thereon by any of the
various states, including Louisiana, the United States of America, and/or any
foreign country and/or any political subdivision thereof, under any applicable
state, federal, or foreign laws or international conventions. Further,
Consultant agrees to make no other assignment, grant, mortgage, license or
agreement affecting the rights and property to be assigned pursuant to this
paragraph without first obtaining the express written consent of the Company.
When requested to so do, during or subsequent to Consultant's employment with
the Company, at the Company's expense, Consultant agrees to communicate and
deliver all facts, information and data concerning said Technologies and
improvements thereto, if any, to the Company or its designee; to execute all
initial, divisional, continuing, substitute, renewal, or reissue applications
for letters patent or copyrights, trademarks and/or service marks, foreign or
domestic, as well as make or execute all rightful oaths, declarations,
assignments, powers of attorney and/or other documents, and generally, do
everything reasonably necessary for securing, maintaining and enforcing the
Company's rights in and to said Technologies and improvements thereto and for
vesting title therein in the Company or its designee. The undertakings set forth
in this Paragraph 5.1 shall survive the termination of this Agreement.
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5.2 Confidentiality. Consultant acknowledges that during his
employment with the Company, Consultant may receive, make use of, or add to the
Company's Confidential Information defined for the purposes of this Agreement as
consisting of, but not limited to (a) proprietary information relating to
compositions, structure and formulations of membrane disruptive peptides
(cytoporins) and applications thereof for pharmaceutical and non-drug use; (b)
product designs, processes, formulas, specifications, prototypes, models,
samples, economies, data, records, reports, manuscripts, and other materials of
a proprietary nature; (c) records and policy matters relating to finance,
accounting, sales, personnel, property, management, and operations; and (d)
matters relating to the Company's operations such as its clients lists, its
compilation of its clients' service requirements, its price and fee structures,
its cost of services, and its cost of operations. Consultant understands and
agrees that said Confidential Information is disclosed to Consultant in
confidence and is to be used for the Company's benefit only. Consultant agrees
that he/she will keep all such information confidential at all times during and
after his employment with the Company; will not disclose or communicate such
Confidential Information to any third party without the express, written consent
of the Company; and will not use such Confidential Information on his own behalf
or on behalf of any third party. In view of the nature of the Confidential
Information the Consultant will receive during the course of his employment,
Consultant understands and agrees that any unauthorized disclosure to third
parties of said Confidential Information or other violation or threatened
violation of this Agreement would cause irreparable damage to the trade secret
status of the Confidential Information and to the Company and that the Company
shall be entitled to seek a judicial injunction prohibiting Consultant from any
such disclosure, attempted disclosures, violation or threatened violation. The
undertakings set forth in this Paragraph 5.2 shall survive the termination of
this Agreement.
5.3 Non-competition Covenants. Consultant covenants and agrees
that, during the term of this Agreement and for a period of two years following
termination of Consultant's employment with the Company, (except as otherwise
provided in Exhibit "A" attached hereto) he shall not (i) engage, directly or
indirectly, in any other business activity that is competitive with, or that
places him in a competing position to that of the Company or an Affiliated
Company within the Parishes of East Baton Rouge, Jefferson and Orleans,
Louisiana; or (ii) hire, solicit, or attempt to hire on behalf of himself or any
other party any employee or exclusive consultant of the Company. For purposes of
this Agreement, the Company's business is defined as (i) developing, testing,
patenting, and manufacturing synthetic bioactive peptides (small proteins)
having applications in the pharmaceutical and health care fields, (ii) seeking
patent protection to protect its proprietary technology, and (iii) licensing its
technology and in seeking strategic corporate alliances for further development
and commercialization of same.
In view of the national nature of the Company's business,
Consultant further agrees that during the term of this Agreement and for a
period of two years following termination of Consultant's employment with the
Company, Consultant shall not engage, directly or indirectly, in any other
business activity that is competitive with, or that places him in a competing
position to that of the Company or any Affiliated Company, within any of the
forty-nine states of the United States of America other than Louisiana. Anything
contained herein to the contrary notwithstanding, this
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paragraph only of this Section 5.3 shall be governed by and enforceable in
accordance with the laws of the state in which it is being enforced against
Consultant.
If any court of proper jurisdiction finds that this covenant is
overly broad or unenforceable for any reason whatsoever, then it is hereby
agreed that this covenant will be reduced or amended to be enforceable to the
extent allowable under applicable law. A violation of this covenant not to
compete by Consultant shall entitle the Company to recover all damages for the
loss sustained and the profit of which the Company has been deprived.
Additionally, the Company is entitled to injunctive relief in enforcing the
terms of this covenant not to compete without the necessity of proving
irreparable injury.
6. Assignment: Successors and Assigns. Consultant shall not assign,
sell, transfer, delegate or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any rights or obligations under this
Agreement (other than securities issued by the Company in accordance with
applicable laws and the provisions of any document pursuant to which such
securities are issued), nor shall Consultant's rights be subject to encumbrance
or the claims of creditors. Any such purported assignment, transfer, or
delegation shall be null and void. Nothing in this Agreement shall prevent the
consolidation of the Company with, its acquisition by, or its merger into, any
other corporation, or the sale by the Company of all or substantially all of its
properties or assets or stock in an arm's length transaction (the foregoing are
collectively referred to herein as an "Acquisition"), or the assignment by the
Company of this Agreement and the performance of its obligations hereunder in
connection with any such Acquisition or to any successor in interest or any
Affiliated Company. Subject to the foregoing this Agreement shall be binding
upon and shall inure to the benefit of the parties and their respective heirs,
legal representatives, successors, and permitted assigns, and shall not benefit
any person or entity other than those enumerated above.
7. Notices. All notices and other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given
if delivered personally or by overnight courier upon receipt or three days after
deposit in the Untied States mail, return receipt requested, and addressed to
the Consultant at:
Xxxxx Xxxxx
00 Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
or to the Company at:
Helix BioMedix, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Attn: Chief Executive Officer
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Either party may change its address for purposes of this Section by giving
notice as set forth above.
8. Entire Agreement. This Agreement represents the entire understanding
of the parties with respect to the subject matter hereof, and may be amended
only by a writing signed by the parties hereto. This Agreement, along with any
amendments hereto, supersede any prior negotiations, offers, or agreements
between the Company and the Consultant with regard to the subject matter hereof.
Without limiting the foregoing, the parties acknowledge and agree that this
Agreement supercedes and replaces in its entirety and serves as a novation of
the Employment Agreement entered into between the parties as of October 1, 1999.
9. Amendments: Waivers. This Agreement may not be modified, amended, or
changed except by an instrument in writing, signed by the Consultant and by a
duly authorized representative of the Company other than Consultant. Either
party may waive compliance by the other party with any provision of this
Agreement; provided, however, that such waiver shall not operate as a waiver of,
or estoppel with respect to, any other or subsequent failure. No failure to
exercise and no delay in exercising any right, remedy, or power hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, remedy, or power provided herein or by law or in equity.
10. Severability. If any provision of this Agreement, as applied to any
person or circumstances, is declared by a court of competent jurisdiction to be
illegal, invalid or unenforceable the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as to
which it is held illegal, invalid or unenforceable, shall not be affect thereby.
If, moreover, any one or more of the provisions contained in this Agreement
shall for any reason be held to be excessively broad as to time, duration,
geographical scope, activity or subject, it shall be construed by limiting and
reducing it, so as to be enforceable to the extent compatible with the
applicable law as it shall then appear.
11. Governing Law: Jurisdiction and Venue. Except as otherwise provided
in Section 5.3 hereof, this Agreement shall be governed by and construed in
accordance with the laws of the State of Louisiana. The parties consent to the
jurisdiction of all federal and state courts in Louisiana, and venue shall lie
exclusively in East Baton Rouge Parish, Louisiana.
12. Consultant Acknowledgment. Consultant acknowledges (i) that he has
consulted with or has had the opportunity to consult with independent counsel of
his own choice concerning this Agreement, and has been advised to do so by the
Company, and (ii) that he has read and understands the Agreement, is fully aware
of its legal effect, and has entered into it freely based on his own judgment.
13. Remedies.
13.1 Injunctive Relief. The parties agree that the services to be
rendered by Consultant hereunder are of a unique nature and that in the event of
any breach or threatened breach of any of the covenants contained herein, the
damage or imminent damage to the value and the goodwill of the Company's
business will be irreparable and extremely difficult to estimate, making any
remedy at law or in damages inadequate. Accordingly, the parties agree that the
Company shall be entitled to injunctive
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relief against Consultant in the event of any breach or threatened breach of any
such provisions by Consultant, in addition to any other relief (including
damages) available to the Company under this Agreement or under law.
13.2 Exclusive. Both parties agree that the remedy specified in
Section 13.1 above is not exclusive of any other remedy for the breach by the
Consultant of the terms hereof.
14. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
Agreement.
15. Relationship of Parties. Consultant shall be deemed an independent
contractor and not an employee of the Company. All letterhead, business cards
and promotional materials used or distributed by Consultant shall present
Consultant as a business consultant to, and not an employee or principal of, the
Company. Consultant shall be responsible for all taxes associated with
compensation (both cash and (if any) stock) paid to Consultant hereunder,
including but not limited to income taxes and social security taxes.
16. No Restrictions on Consultant. Consultant represents and warrants
that his employment with the Company does not and will not breach any agreement
or duty which Consultant has to any other person, including without limitation
(i) rules or laws which restrict Consultant's employment with third parties, and
(ii) confidentiality or non-competition agreements with third parties.
17. Restricted Stock
(a) Consultant recognizes and understands that any shares of
Company stock to be issued to Consultant hereunder (the "securities")
will not upon initial issuance be registered under the Securities Act of
1933 ("Securities Act"), or under the securities laws of any state (the
"securities laws"). The securities are not being so registered in
reliance upon exemptions from the Securities Act and the securities laws
which are predicated, in part, on the representations, warranties and
agreements of the Consultant contained herein.
(b) Consultant represents and warrants that (i) he has knowledge
and experience in business, finance, securities and investments, such
experience being based on actual participation therein, (ii) he is
capable of evaluating the merits and risks of an investment in the Helix
Stock and the suitability thereof as an investment therefor, (iii) he is
an experienced and sophisticated investor in investments, including
investments similar to that of the Company's stock (iv) any Company
stock to be acquired by him will be acquired solely for investment and
not with a view toward resale or redistribution in violation of the
securities laws, and no assurances have been made concerning the future
results of the Company or as to the value of such stock, and (v) he is
an "accredited investor" within the meaning of Regulation D promulgated
by the United States Securities and Exchange Commission (the
"Commission") pursuant to the Securities Act.
(c) Consultant has consulted with its own counsel in regard to
the securities laws and is fully aware (i) of the circumstances under
which he is required to hold the securities, (ii) of the limitations on
the transfer or disposition of the securities, and (iii) that the
securities must be held
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indefinitely unless the transfer thereof is registered under the
securities laws or an exemption from registration is available.
(d) Consultant has been furnished with a copy of the Annual
Report on Form 10-KSB of the Company filed with the Commission under the
Securities Exchange Act of 1934, as amended, for the fiscal year ended
December 31, 1998, and the Form 10-QSB quarterly reports filed with the
SEC since that date. The Company has made available to Consultant the
opportunity to ask questions and receive answers concerning the terms
and conditions of the transactions contemplated by this Agreement and to
obtain any additional information which they posses or could reasonably
acquire the purpose of verifying the accuracy of the information
furnished to Consultant as set forth herein or for the purpose of
considering the transactions contemplated hereby.
The parties have duly executed this Amended and Restated Consulting
Agreement as of the date first written above.
WITNESSES HELIX BIOMEDIX, INC.
By:
----------------------------
Title:
-----------------------
----------------------------
Consultant:
----------------------------
Xxxxx Xxxxx, Ph.D.
----------------------------
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EXHIBIT "A"
TO AMENDED AND RESTATED CONSULTING AGREEMENT
(Niman)
For purposes of Paragraph 2.2 of the Amended and Restated Consulting
Agreement, the parties agrees that Xx. Xxxxx may participate in the following
outside scientific and professional activities:
- Membership and office appointments in professional societies
- Membership and office appointments in professional foundation or
educational institutions
- Membership on editorial boards of scientific journals or books
- Manuscript and grant review
- Academic advisory boards or other similar types of activities
- Scientific advisory boards of other company(s), as approved in
advance by the Board of Helix BioMedix, Inc.
The parties further agree that Xx. Xxxxx'x continued research and
development of monoclonal antibodies with synthetic peptides shall not be deemed
competitive with the business of Helix BioMedix, Inc.; provided, however, that
the use of synthetic peptides for therapeutic applications, including without
limitation gene therapy, shall be deemed the business of Helix BioMedix, Inc.
and shall not be undertaken by Xx. Xxxxx without the prior written consent of
the Board of Helix BioMedix, Inc.
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EMPLOYMENT AGREEMENT
This Agreement, dated as of September 30, 1999, is entered into by and
among HELIX BIOMEDIX, INC., a Colorado corporation ("HBMCO") and its wholly
owned subsidiary, HELIX BIOMEDIX, INC., a Louisiana corporation ("HBMLA")
(hereafter referred to collectively as the "Company"), and Xxxxx X. Xxxxxxx, a
resident of Louisiana ("XXXXXXX" or the "Employee").
PRELIMINARY RECITALS
WHEREAS, the Company is a publicly owned biotechnology company which is
engaged in (i) developing, testing, patenting, and manufacturing synthetic
bioactive peptides (small proteins) having applications in the pharmaceutical
and health care fields, (ii) seeking patent protection to protect its
proprietary technology, (iii) licensing its technology and in seeking strategic
corporate alliances for further development and commercialization of same, and
(iv) obtaining both private and public funding to support the Company,
(collectively, the "Business"), and
WHEREAS, XXXXXXX was the founder of the Company's predecessor in 1985
and has served as the Company's Chairman, President, and CEO since 1989 and is a
major shareholder of the Company; and
WHEREAS, XXXXXXX has extensive experience in all areas of the Company's
business; and
WHEREAS, the Company has, during the last year, successfully undertaken
a major financial and management restructuring to enhance the Company's future
growth; and
WHEREAS, the Company and XXXXXXX agree that continuation of his services
to the Company is in their mutual best interests;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
of the parties hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
59
AGREEMENT
1. Period of Employment. The Company hereby employs XXXXXXX ("Employee")
to render services to the Company in the position and with the duties and
responsibilities described in Section 2 commencing on October 1, 1999, and
extending for a term of one year thereafter, provided that such term shall
automatically renew for two additional one year periods at the end of such
initial term and each subsequent renewal, unless 90 days prior to the date of
such renewal either party shall give written notice to the other party of
cancellation, and in such event Employee's employment hereunder shall terminate.
The period of time covered by the Employee's employment
hereunder shall hereafter be referred to as the "Period of Employment." The
Company's employment policies as they may be established or amended from time to
time in writing during the Period of Employment ("Company Policies") shall apply
to and govern the employment relationship between Employee and the Company,
provided that in the event of any conflict between Company Policies and the
terms and conditions of this Agreement, the terms and conditions of this
Agreement shall apply.
2. Position, Duties, Responsibilities.
2.1 Position. Employee hereby accepts employment with the Company
pursuant to the terms and conditions hereof. Employee agrees to serve the
Company in the position of Vice President-Technology ("VP-Technology").
Employee, in his capacity as VP-Technology, shall report to the Chief Executive
Officer ("CEO") of the Company. Employee shall have the powers and duties
commensurate with such position and as may be set forth in the By Laws of the
Company. Employee shall devote his best efforts and attention to the performance
of the services customarily incident to such offices and to such other services
as the CEO may, from time to time, reasonably request.
Without limiting the generality of the foregoing, Employee understands
that he will be responsible for: (i) assisting other management personnel in
assuming new responsibilities which may be assigned to them by the Board and CEO
as an integral part of the Company's on-going restructuring program, (ii)
continuing his past efforts in expanding and developing the prosecution of the
Company's patent portfolio, (iii) serving as an interface in planning, and/or
overseeing, and/or coordinating the technical activities involving the CEO, the
Company's Scientific Advisory Board and Vice President-Science, and the
Company's outside technical collaborators and contract research organizations
(specifically including Therapeutic Peptides, Inc.), (iv) developing strategic
alliances, joint ventures and similar relationships with third parties, (v)
seeking licensees for various applications of the
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Company's technology, (vi) seeking grant and contract research support
for the Company, (vii) advising the Board with respect to both internal
and external initiatives for continued development of the Company's
technology and commercialization of same; and (viii) assisting
management and the Company's consultants in presentations to enhance
shareholder value and the Company's profile in the financial community.
Notwithstanding the foregoing, Employee shall not enter into any
contracts or agreements on behalf of the Company, without the prior
written consent of the Board.
Because of the broad scope of Employee's responsibilities, he shall
report to the CEO with respect to judicious assignment of priorities in
execution of his employment duties.
2.2 Other Activities. Except upon the prior written consent of
the Board, Employee shall not during the Period of Employment engage, directly
or indirectly, engage in any other business activity (whether or not pursued for
pecuniary advantage) that is or may be competitive with, or that might place him
in a competing position to that of the Company or any other corporation or
entity that directly or indirectly controls, is controlled by, or is under
common control with the Company (as "Affiliated Company").
3. Compensation, Benefits, Expenses.
3.1 Compensation.
(a) Annual Salary. In consideration of the services to be
rendered hereunder, including without limitation services to any Affiliated
Company, Employee shall be paid an annual salary of $90,000.00 for the first one
year term of the Period of Employment. Employee's salary shall be payable in
equal semi-monthly or monthly installments at the time and pursuant to the
procedures regularly established, and as they may be amended, by the Company
during the term of this Agreement. Unless otherwise agreed in writing by the
Company and Employee, Employee's salary for any renewal term(s) of this
Agreement shall be based upon an annual salary for full time employment of
$90,000.00.
3.2 Benefits. Employee shall be entitled to participate in such
general benefit programs as the Company may from time to time institute for the
enjoyment and benefit of its employees, including, but not limited to,
retirement programs, insurance plans, and stock option plans for officers,
directors, and other key employees of the Company.
3.3 Expenses. The Company shall reimburse Employee for reasonable
travel and other business expenses incurred by Employee in the performance of
his duties hereunder in accordance with the Company Policies.
4. Termination of Employment.
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4.1 By Death. The Period of Employment shall terminate
automatically upon the death of the Employee. In such event, the Company shall
pay to Employee's beneficiaries or his estate, as the case may be, any accrued
salary, any benefits under any plans of the Company in which Employee is a
participant to the full extent of Employee's rights under such plans, and any
appropriate business expenses incurred by Employee in connection with his duties
hereunder, all to the date of termination (collectively "Accrued Compensation"),
but no other compensation or reimbursement of any kind, including, without
limitation, severance compensation, and thereafter, the Company's obligations
hereunder shall terminate.
4.2 By Disability. If the Employee is prevented from properly
performing his duties hereunder by reason of any physical or mental incapacity
for a period of more than 45 days in the aggregate in any 365-day period, then,
to the extent permitted by law, the Company may terminate the Period of
Employment on the 45th day of such incapacity. In such event, the Company shall
pay to Employee all Accrued Compensation through the effective date of
termination, but no other compensation or reimbursement of any kind, including
without limitation, severance compensation, and thereafter the Company's
obligations hereunder shall terminate. Nothing in this Section shall affect
Employee's rights under any disability plan in which he is a participant.
4.3 By Company for Cause. The Company may terminate the Period of
Employment for Cause (as defined below) without liability at any time with or
without advance notice to the Employee. The Company shall pay Employee all
Accrued Compensation, but no other compensation or reimbursement of any kind,
including without limitation, severance compensation, and thereafter the
Company's obligations hereunder shall terminate. Termination shall be for
"Cause" in the event of the occurrence of any of the following: (i) any action
or failure to act by Employee which was performed in bad faith and to the
detriment of the Company; (ii) Employee refuses or fails to act in accordance
with any lawful and proper direction or order of the Board; (iii) Employee
willfully wantonly disregards performing the duties of employment; (iv) Employee
is convicted of a felony crime involving moral turpitude; or (v) Employee
intentionally breaches any material term of this Agreement ; provided that in
the event that any of the foregoing events is capable of being cured, the
Company shall provide written notice to the Employee describing the nature of
such event and the Employee shall thereafter have ten (10) days to cure such
event.
4.4 By The Parties Without Cause. At any time the parties hereto
may terminate the Period of Employment without cause by mutual agreement of the
parties, the terms and conditions of such termination to be set forth in a
written agreement between the Company and Employee.
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4.5 Termination Obligations. Employee hereby acknowledges and
agrees that all personal property, including, without limitation, all books,
manuals, records, reports, notes, contracts, lists, and other documents,
proprietary information, copies of any of the foregoing, and equipment furnished
to or prepared by Employee in the course of or incident to his employment,
belongs to the Company and shall be delivered to the Company upon termination of
the Period of Employment.
5. Intellectual Property, Confidentiality, Non-Competition.
5.1 Intellectual Property. Employee agrees to disclose to the
Company promptly, all inventions, discoveries and/or original works of
authorship or compilations thereof (hereinafter referred to as "Technologies")
including without limitation products, processes, designs, formulas,
specifications, prototype, models, samples, economies, reports or manuscripts as
well as all improvements made thereto, that are conceived, developed and/or
reduced to practice by Employee during the term of this Agreement and within the
scope of work and duties performed by Employee for the Company. The Employee
also agrees to assign to the Company Employee's entire right, title, and
interest in said Technologies and to any patent(s), copyright(s), trademark(s)
or service xxxx(s) which may be issued thereon by any of the various states,
including Louisiana, the United States of America, and/or any foreign country
and/or any political subdivision thereof, under any applicable state, federal,
or foreign laws or international conventions. Further, Employee agrees to make
no other assignment, grant, mortgage, license or agreement affecting the rights
and property to be assigned pursuant to this paragraph without first obtaining
the express written consent of the Company. When requested to so do, during or
subsequent to Employee's employment with the Company, at no out-of-pocket
expense to Employee, Employee agrees to communicate and deliver all facts,
information and data concerning said Technologies and improvements thereto, if
any, to the Company or its designee; to execute all initial, divisional,
continuing, substitute, renewal, or reissue applications for letters patent or
copyrights, trademarks and/or service marks, foreign or domestic, as well as
make or execute all rightful oaths, declarations, assignments, powers of
attorney and/or other documents, and generally, do everything reasonably
necessary for securing, maintaining and enforcing the Company's rights in and to
said Technologies and improvements thereto and for vesting title therein in the
Company or its designee. The undertakings set forth in this Paragraph 5.1 shall
survive the termination of this Agreement.
5.2 Confidentiality. Employee acknowledges that during his
employment with the Company, Employee may receive, make use of, or add to the
Company's Confidential Information defined for the purposes of this Agreement as
consisting of, but not limited to (a) proprietary information relating to
compositions, structure and formulations of membrane disruptive peptides
(cytoporins) and applications thereof for pharmaceutical and non-drug use; (b)
product designs, processes, formulas, specifications, prototypes, models,
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samples, economies, data, records, reports, manuscripts, and other materials of
a proprietary nature; (c) records and policy matters relating to finance,
accounting, sales, personnel, property, management, and operations; and (d)
matters relating to the Company's operations such as its clients lists, its
compilation of its clients' service requirements, its price and fee structures,
its cost of services, and its cost of operations. Employee understands and
agrees that said Confidential Information is disclosed to Employee in confidence
and is to be used for the Company's benefit only. Employee agrees that he/she
will keep all such information confidential at all times during and after his
employment with the Company; will not disclose or communicate such Confidential
Information to any third party without the express, written consent of the
Company; and will not use such Confidential Information on his own behalf or on
behalf of any third party. In view of the nature of the Confidential Information
the Employee will receive during the course of his employment, Employee
understands and agrees that any unauthorized disclosure to third parties of said
Confidential Information or other violation or threatened violation of this
Agreement would cause irreparable damage to the trade secret status of the
Confidential Information and to the Company and that the Company shall be
entitled to seek a judicial injunction prohibiting Employee from any such
disclosure, attempted disclosures, violation or threatened violation. The
undertakings set forth in this Paragraph 5.2 shall survive the termination of
this Agreement.
5.3 Non-competition Covenants. Employee covenants and agrees
that, during the term of this Agreement and for a period of two years following
termination of Employee's employment with the Company, he shall not (i) engage,
directly or indirectly, in any other business activity that is competitive with,
or that places him in a competing position to that of the Company or an
Affiliated Company; or (ii) hire, solicit, or attempt to hire on behalf of
himself or any other party any employee or exclusive consultant of the Company.
6. Assignment: Successors and Assigns. Employee shall not assign, sell,
transfer, delegate or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any rights or obligations under this
Agreement, nor shall Employee's rights be subject to encumbrance or the claims
of creditors. Any such purported assignment, transfer, or delegation shall be
null and void. Nothing in this Agreement shall prevent the consolidation of the
Company with, its acquisition by, or its merger into, any other corporation, or
the sale by the Company of all or substantially all of its properties or assets
or stock in an arm's length transaction (the foregoing are collectively referred
to herein as an "Acquisition"), or the assignment by the Company of this
Agreement and the performance of its obligations hereunder in connection with
any such Acquisition or to any successor in interest or any Affiliated Company.
Subject to the foregoing this Agreement shall be binding upon and shall inure to
the benefit of the parties and their respective heirs, legal representatives,
successors, and permitted assigns, and shall not benefit any person or entity
other than those enumerated above.
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7. Notices. All notices and other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given
if delivered personally or by overnight courier upon receipt or three days after
deposit in the Untied States mail, return receipt requested, and addressed to
the Employee at:
Xxxxx X. Xxxxxxx
0000 Xxxx Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
or to the Company at:
Helix BioMedix, Inc.
0000 Xxxx Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attn: Chief Executive Officer
Either party may change its address for purposes of this Section by
giving notice as set forth above.
8. Entire Agreement. This Agreement represents the entire understanding
of the parties with respect to the subject matter hereof, and may be amended
only by a writing signed by the parties hereto. This Agreement, along with any
amendments hereto, supersede any prior negotiations, offers, or agreements
between the Company and the Employee with regard to the subject matter hereof.
9. Amendments: Waivers. This Agreement may not be modified, amended, or
changed except by an instrument in writing, signed by the Employee and by a duly
authorized representative of the Company other than Employee. Either party may
waive compliance by the other party with any provision of this Agreement;
provided, however, that such waiver shall not operate as a waiver of, or
estoppel with respect to, any other or subsequent failure. No failure to
exercise and no delay in exercising any right, remedy, or power hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, remedy, or power provided herein or by law or in equity.
10. Severability. If any provision of this Agreement, as applied to any
person or circumstances, is declared by a court of competent jurisdiction to be
illegal, invalid or unenforceable the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as to
which it is held illegal, invalid or unenforceable, shall not be affect thereby.
If, moreover, any one or more of the provisions contained in this Agreement
shall for any reason be held to be excessively broad as to time,
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duration, geographical scope, activity or subject, it shall be construed by
limiting and reducing it, so as to be enforceable to the extent compatible with
the applicable law as it shall then appear.
11. Governing Law: Jurisdiction and Venue. This Agreement shall be
governed by and construed in accordance with the laws of the State of Louisiana.
The parties consent to the jurisdiction of all federal and state courts in
Louisiana, and venue shall lie exclusively in East Baton Rouge Parish,
Louisiana.
12. Employee Acknowledgment. Employee acknowledges (i) that he has
consulted with or has had the opportunity to consult with independent counsel of
his own choice concerning this Agreement, and has been advised to do so by the
Company, and (ii) that he has read and understands the Agreement, is fully aware
of its legal effect, and has entered into it freely based on his own judgment.
13. Remedies.
13.1 For the Company. The parties agree that the services to be
rendered by Employee hereunder are of a unique nature and that in the event of
any breach or threatened breach of any of the covenants contained herein, the
damage or imminent damage to the value and the goodwill of the Company's
business will be irreparable and extremely difficult to estimate, making any
remedy at law or in damages inadequate. Accordingly, the parties agree that the
Company shall be entitled to injunctive relief against Employee in the event of
any breach or threatened breach of any such provisions by Employee, in addition
to any other relief (including damages) available to the Company under this
Agreement or under law.
13.2 For the Employee. The parties agree that in the event of any breach
or default by the Company of any of the covenants contained herein, and the
Company fails to cure such default within ten (10) days following receipt by the
Company of written notice thereof, then the Employee shall be entitled to seek
any and all remedies available to him under Louisiana law.
14. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
Agreement.
15. Withholdings. All compensation and benefits to Employee hereunder
shall be subject to all federal, state, local and other withholdings and similar
taxes and payments required by applicable law.
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16. No Restrictions on Employee. Employee represents and warrants that
his employment with the Company does not and will not breach any agreement or
duty which Employee has to any other person, including without limitation (i)
rules or laws which restrict Employee's employment with third parties, and (ii)
confidentiality or non-competition agreements with third parties.
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THE PARTIES HAVE DULY EXECUTED THIS EMPLOYMENT AGREEMENT AS OF THE DATE
FIRST WRITTEN ABOVE.
WITNESSES: HELIX BIOMEDIX, INC. (of Colorado)
By:
------------------------ -------------------------------
Title
------------------------ ----------------------------
HELIX BIOMEDIX, INC. (of Louisiana)
By
------------------------ -------------------------------
Title:
------------------------ ----------------------------
EMPLOYEE
------------------------
---------------------------------
Xxxxx X. Xxxxxxx
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EMPLOYMENT AGREEMENT
This Agreement, dated as of January 1, 2000 is entered into by and
between HELIX BIOMEDIX, INC., a Colorado corporation (the "Company"), and R.
Xxxxxxx Xxxxxx, a resident of Louisiana ("Employee").
In consideration of the mutual covenants of the parties hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Period of Employment. The Company hereby employs Employee to render
services to the Company in the position and with the duties and responsibilities
described in Section 2 commencing on January 1, 2000 (the "Commencement Date"),
and extending for a term of one year thereafter, provided that such term shall
automatically renew for one additional one year period at the end of such
initial term and each subsequent renewal, unless 90 days prior to the date of
such renewal either party shall give written notice to the other party of
cancellation, and in such event Employee's employment hereunder shall terminate.
The period of time covered by the Employee's employment
hereunder shall hereafter be referred to as the "Period of Employment." The
Company's employment policies as they may be established or amended from time to
time in writing during the Period of Employment ("Company Policies") shall apply
to and govern the employment relationship between Employee and the Company,
provided that in the event of any conflict between Company Policies and the
terms and conditions of this Agreement, the terms and conditions of this
Agreement shall apply.
2. Position, Duties, Responsibilities.
2.1 Position. Employee hereby accepts full time employment with
the Company pursuant to the terms and conditions hereof. Employee agrees to
serve the Company in the position of Chief Executive Officer of the Company.
Employee shall report to the Board of Directors of the Company. Employee shall
have the powers and duties commensurate with such position and as may be set
forth in the Bylaws of the Company. Employee shall devote his best efforts and
attention to the performance of the services customarily incident to such office
and to such other services as the Board may, from time to time, reasonably
request.
69
2.2 Other Activities. Except upon the prior written consent of
the Board, Employee shall not during the Period of Employment engage, directly
or indirectly, in any other business activity (whether or not pursued for
pecuniary advantage) that is or may be competitive with, or that might place him
in a competing position to that of the Company or any other corporation or
entity that directly or indirectly controls, is controlled by, or is under
common control with the Company (as "Affiliated Company"). In addition, the
Company acknowledges and agrees that Employee may work up to ten (10) hours per
week for Xxxxxx Finance, Inc., provided that such services do not impair
Employee's ability to perform his services hereunder and do not otherwise
prejudice the Company.
3. Compensation, Benefits, Expenses.
3.1 Compensation.
(a) Cash Payment. In consideration of the services to be
rendered hereunder, including without limitation services to any Affiliated
Company, Employee shall be paid an annual salary of $78,000 (the "Cash Payment")
plus stock options as described in Section 3.1(b) hereunder for the initial one
year term of the Period of Employment. Employee's Cash Payment shall be payable
in equal semi-monthly installments at the time and pursuant to the procedures
regularly established, and as they may be amended, by the Company during the
term of this Agreement. Unless otherwise agreed in writing by the Company and
Employee, Employee's salary for any renewal term(s) of this Agreement shall be
the same as the initial one year term.
(b) Stock Options. Subject to the terms and conditions set
forth herein, Employee shall have the option ("Option") to purchase 80,000
shares of the Company's common stock at an option price of $0.70 per share,
during that period commencing on the date that the applicable Option(s) vest and
ending on December 31, 2004, when all any and all unexercised Options granted
herein shall expire and terminate. These Options shall vest quarterly in four
equal blocks, as follows: Employee shall become vested in Options for 20,000
shares on each of March 31, 2000, June 30, 1999, September 30, 1999 and December
31, 2000, provided that (except as otherwise provided in Section 4.4 hereof)
Employee remains employed by the Company as of each such vesting date. Except as
otherwise provided in Section 4.4 hereof, upon termination of this Agreement,
Employee shall be entitled only to those Options which have vested as of the
date of termination. The number of shares of Company common stock covered by the
above described Options, and the option price applicable thereto, shall be
appropriately and equitably adjusted in the event of any stock dividend, stock
split, combination or other similar recapitalization, such that the net economic
position of Employee shall not change as a result thereof. All common stock of
the Company issued to Employee pursuant to such Options shall not be registered
pursuant to the Securities Act of 1933 or the laws of any state and will
therefore be
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"restricted stock" for purposes of Rule 144. Such stock is sometimes referred to
herein collectively as "Option Shares."
Employee represents and warrants that (i) he has knowledge and
experience in business finance, securities and investments, such experience
being based on actual participation therein, (ii) he is capable of evaluating
the merits and risks of an investment in the Option Shares and the suitability
thereof as an investment therefor, (iii) he is an experienced and sophisticated
investor in investments, including investments similar to that in the Company's
stock, (iv) any Option Shares received hereunder will be acquired solely for
investment and not with the view toward resale or redistribution in violation of
applicable securities laws, and no assurances have been made concerning the
future results of the Company or as to the value of the Company's stock, and (v)
he is an "accredited investor within the meaning of Regulation D promulgated by
the United States Securities and Exchange Commission (the "Commission") pursuant
to the Securities Act of 1933.
Employee has consulted with his own counsel in regard to the securities
laws and is fully aware (i) of the circumstances under which he is required to
hold the Company's stock, (ii) of the limitations on the transfer or disposition
of the Company' stock, and (iii) that the Company' stock must be held
indefinitely unless the transfer thereof is registered under applicable
securities laws or an exemption from registration is available.
Employee has been furnished with a copy of the Annual Report on Form
10-KSB of the Company filed with the Commission under the Securities Exchange
Act of 1934 as amended for the fiscal year ending December 31, 1998 and the
Forms 10-QSB which have filed with the Commission since that date. The Company
has made available to Employee the opportunity to ask questions and receive
answers concerning the terms and conditions of the transactions contemplated by
this Agreement and to obtain any additional information which they possess or
could reasonably acquire for the purpose of verifying the accuracy of the
information furbished to Employee as set forth herein or for the purpose of
considering the transactions contemplated hereby. The Company has offered, and
agrees during the term of this Agreement, to make available to Employee upon
request at any time all exhibits filed by the Company with the Commission as
part of any of the reports filed therewith.
3.2 Benefits. Employee shall be entitled to participate in such
general benefit programs as the Company may from time to time institute for the
enjoyment and benefit of its employees, including, but not limited to,
retirement programs and insurance plans for officers, directors, and other key
employees of the Company.
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3.3 Expenses. The Company shall reimburse Employee for reasonable
travel and other business expenses incurred by Employee in the performance of
his duties hereunder in accordance with the Company Policies.
4. Termination of Employment.
4.1 By Death. The Period of Employment shall terminate
automatically upon the death of the Employee. In such event, the Company shall
pay to Employee's beneficiaries or his estate, as the case may be, any accrued
but not yet paid Cash Payments and any vested Stock Options, any benefits under
any plans of the Company in which Employee is a participant to the full extent
of Employee's rights under such plans, and any appropriate business expenses
incurred by Employee in connection with his duties hereunder, all through the
date of termination (collectively "Accrued Compensation"), but no other
compensation or reimbursement of any kind, including, without limitation,
severance compensation, and thereafter, the Company's obligations hereunder
shall terminate.
4.2 By Disability. If the Employee is prevented from properly
performing his duties hereunder by reason of any physical or mental incapacity
for a period of more than 45 days in the aggregate in any 365-day period, then,
to the extent permitted by law, the Company may terminate the Period of
Employment on the 45th day of such incapacity. In such event, the Company shall
pay to Employee all Accrued Compensation through the effective date of
termination, but no other compensation or reimbursement of any kind, including
without limitation, severance compensation, and thereafter the Company's
obligations hereunder shall terminate. Nothing in this Section shall affect
Employee's rights under any disability plan in which he is a participant.
4.3 By Company for Cause. The Company may terminate Employee's
employment for Cause (as defined below) without liability at any time with or
without advance notice to the Employee. The Company shall pay Employee all
Accrued Compensation, but no other compensation or reimbursement of any kind,
including without limitation, severance compensation, and thereafter the
Company's obligations hereunder shall terminate. Termination shall be for
"Cause" in the event of the occurrence of any of the following: (i) any action
or failure to act by Employee which was performed in bad faith and to the
detriment of the Company; (ii) Employee refuses or fails to act in accordance
with any lawful direction or order of the Board; (iii) Employee wantonly
disregards performing the duties of employment; (iv) Employee is convicted of a
crime involving Employer or any felony; or (v) Employee breaches any material
term of this Agreement ; provided that in the event that any of the foregoing
events is capable of being cured, the Company shall provide written notice to
the Employee describing the nature of such event and the Employee shall
thereafter have ten (10) days to cure such event.
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4.4 By the Company Without Cause. The Company may terminate this
Agreement at any time for any reason other than death, disability or "cause" (as
defined above), upon written notice thereof to Employee; provided, that if the
Company so terminates Employee during the initial one year term of this
Agreement, Employee shall be entitled to one-half (50%) of the compensation
(salary and vesting in stock options) otherwise due Employee hereunder during
the remaining portion of the initial one year term.
4.5 By The Parties Without Cause. At any time the parties hereto
may terminate this Agreement by mutual agreement of the parties, the terms and
conditions of such termination to be set forth in a written agreement between
the Company and Employee.
4.6 Termination Obligations. Employee hereby acknowledges and
agrees that all personal property, including, without limitation, all books,
manuals, records, reports, notes, contracts, lists, and other documents,
proprietary information, copies of any of the foregoing, and equipment furbished
to or prepared by Employee in the course of or incident to his employment,
belongs to the Company and shall be delivered to the Company upon termination of
the Period of Employment.
5. Intellectual Property, Confidentiality, Non-Competition.
5.1 Intellectual Property. Employee agrees to disclose to the
Company promptly, all inventions, discoveries and/or original works of
authorship or compilations thereof (hereinafter referred to as "Technologies")
including without limitation products, processes, designs, formulas,
specifications, prototype, models, samples, economies, reports or manuscripts as
well as all improvements made thereto, that are conceived, developed and/or
reduced to practice by Employee during the term of this Agreement and within the
scope of work and duties performed by Employee for the Company. The Employee
also agrees to assign to the Company Employee's entire right, title, and
interest in said Technologies and to any patent(s), copyright(s), trademark(s)
or service xxxx(s) which may be issued thereon by any of the various states,
including Louisiana, the United States of America, and/or any foreign country
and/or any political subdivision thereof, under any applicable state, federal,
or foreign laws or international conventions. Further, Employee agrees to make
no other assignment, grant, mortgage, license or agreement affecting the rights
and property to be assigned pursuant to this paragraph without first obtaining
the express written consent of the Company. When requested to so do, during or
subsequent to Employee's employment with the Company, at no out-of-pocket
expense to Employee, Employee agrees to communicate and deliver all facts,
information and data concerning said Technologies and improvements thereto, if
any, to the Company or its designee; to execute all initial, divisional,
continuing, substitute, renewal, or reissue applications for letters patent or
copyrights, trademarks and/or service marks, foreign or domestic, as well as
make or execute all rightful oaths, declarations, assignments, powers of
attorney and/or other
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73
documents, and generally, do everything reasonably necessary for securing,
maintaining and enforcing the Company's rights in and to said Technologies and
improvements thereto and for vesting title therein in the Company or its
designee. The undertakings set forth in this Paragraph 5.1 shall survive the
termination of this Agreement.
5.2 Confidentiality. Employee acknowledges that during his
employment with the Company, Employee may receive, make use of, or add to the
Company's Confidential Information defined for the purposes of this Agreement as
consisting of, but not limited to (a) proprietary information relating to
compositions, structure and formulations of membrane disruptive peptides
(cytoporins) and applications thereof for pharmaceutical and non-drug use; (b)
product designs, processes, formulas, specifications, prototypes, models,
samples, economies, data, records, reports, manuscripts, and other materials of
a proprietary nature; (c) records and policy matters relating to finance,
accounting, sales, personnel, property, management, and operations; and (d)
matters relating to the Company's operations such as its clients lists, its
compilation of its clients' service requirements, its price and fee structures,
its cost of services, and its cost of operations. Employee understands and
agrees that said Confidential Information is disclosed to Employee in confidence
and is to be used for the Company's benefit only. Employee agrees that he/he
will keep all such information confidential at all times during and after his
employment with the Company; will not disclose or communicate such Confidential
Information to any third party without the express, written consent of the
Company; and will not use such Confidential Information on his own behalf or on
behalf of any third party. In view of the nature of the Confidential Information
the Employee will receive during the course of his employment, Employee
understands and agrees that any unauthorized disclosure to third parties of said
Confidential Information or other violation or threatened violation of this
Agreement would cause irreparable damage to the trade secret status of the
Confidential Information and to the Company and that the Company shall be
entitled to seek a judicial injunction prohibiting Employee from any such
disclosure, attempted disclosures, violation or threatened violation. The
undertakings set forth in this Paragraph 5.2 shall survive the termination of
this Agreement.
5.3 Non-competition Covenants. Employee covenants and agrees
that, during the term of this Agreement and for a period of two years following
termination of Employee's employment with the Company, he shall not (i) engage,
directly or indirectly, in any other business activity that is competitive with,
or that places him in a competing position to that of the Company or an
Affiliated Company within the Parishes of East Baton Rouge, Jefferson and
Orleans, Louisiana; or (ii) hire, solicit, or attempt to hire on behalf of
himself or any other party any employee or exclusive consultant of the Company.
For purposes of this Agreement, the Company's business is defined as (i)
developing, testing, patenting, and manufacturing synthetic bioactive peptides
(small proteins) having applications in the pharmaceutical and health care
fields, (ii) seeking patent protection to
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protect its proprietary technology, and (iii) licensing its technology and in
seeking strategic corporate alliances for further development and
commercialization of same.
In view of the national nature of the Company's business,
Employee further agrees that during the term of this Agreement and for a period
of two years following termination of Employee's employment with the Company,
Employee shall not engage, directly or indirectly, in any other business
activity that is competitive with, or that places him in a competing position to
that of the Company or any Affiliated Company, within any of the forty-nine
states of the United States of America other than Louisiana. Anything contained
herein to the contrary notwithstanding, this paragraph only of this Section 5.3
shall be governed by and enforceable in accordance with the laws of the state in
which it is being enforced against Employee.
If any court of proper jurisdiction finds that this covenant is
overly broad or unenforceable for any reason whatsoever, then it is hereby
agreed that this covenant will be reduced or amended to be enforceable to the
extent allowable under applicable law. A violation of this covenant not to
compete by Employee shall entitle the Company to recover all damages for the
loss sustained and the profit of which the Company has been deprived.
Additionally, the Company is entitled to injunctive relief in enforcing the
terms of this covenant not to compete without the necessity of proving
irreparable injury.
6. Assignment: Successors and Assigns. Employee shall not assign, sell,
transfer, delegate or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any rights or obligations under this
Agreement, nor shall Employee's rights be subject to encumbrance or the claims
of creditors. Any such purported assignment, transfer, or delegation shall be
null and void. Nothing in this Agreement shall prevent the consolidation of the
Company with, its acquisition by, or its merger into, any other corporation, or
the sale by the Company of all or substantially all of its properties or assets
or stock in an arm's length transaction (the foregoing are collectively referred
to herein as an "Acquisition"), or the assignment by the Company of this
Agreement and the performance of its obligations hereunder in connection with
any such Acquisition or to any successor in interest or any Affiliated Company.
Subject to the foregoing this Agreement shall be binding upon and shall inure to
the benefit of the parties and their respective heirs, legal representatives,
successors, and permitted assigns, and shall not benefit any person or entity
other than those enumerated above.
7. Notices. All notices and other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given
if delivered personally or by overnight courier upon receipt or three days after
deposit in the Untied States mail, return receipt requested, and addressed to
the Employee at:
R. Xxxxxxx Xxxxxx
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75
---------------------
---------------------
or to the Company at:
Helix BioMedix, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Chief Executive Officer
Either party may change its address for purposes of this Section by
giving notice as set forth above.
8. Entire Agreement. This Agreement represents the entire understanding
of the parties with respect to the subject matter hereof, and may be amended
only by a writing signed by the parties hereto. This Agreement, along with any
amendments hereto, supersede any prior negotiations, offers, or agreements
between the Company and the Employee with regard to the subject matter hereof.
9. Amendments: Waivers. This Agreement may not be modified, amended, or
changed except by an instrument in writing, signed by the Employee and by a duly
authorized representative of the Company other than Employee. Either party may
waive compliance by the other party with any provision of this Agreement;
provided, however, that such waiver shall not operate as a waiver of, or
estoppel with respect to, any other or subsequent failure. No failure to
exercise and no delay in exercising any right, remedy, or power hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, remedy, or power provided herein or by law or in equity.
10. Severability. If any provision of this Agreement, as applied to any
person or circumstances, is declared by a court of competent jurisdiction to be
illegal, invalid or unenforceable the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as to
which it is held illegal, invalid or unenforceable, shall not be affect thereby.
If, moreover, any one or more of the provisions contained in this Agreement
shall for any reason be held to be excessively broad as to time, duration,
geographical scope, activity or subject, it shall be construed by limiting and
reducing it, so as to be enforceable to the extent compatible with the
applicable law as it shall then appear.
11. Governing Law: Jurisdiction and Venue. Except as otherwise expressly
provided in Section 5.3, this Agreement shall be governed by and construed in
accordance with the laws of the State of Louisiana. The parties consent to the
jurisdiction of all federal
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76
and state courts in Louisiana, and venue shall lie exclusively in East Baton
Rouge Parish, Louisiana.
12. Employee Acknowledgment. Employee acknowledges (i) that he has
consulted with or has had the opportunity to consult with independent counsel of
his own choice concerning this Agreement, and has been advised to do so by the
Company, and (ii) that he has read and understands the Agreement, is fully aware
of its legal effect, and has entered into it freely based on his own judgment.
13. Remedies.
13.1 For the Company. The parties agree that the services to be
rendered by Employee hereunder are of a unique nature and that in the event of
any breach or threatened breach of any of the covenants contained herein, the
damage or imminent damage to the value and the goodwill of the Company's
business will be irreparable and extremely difficult to estimate, making any
remedy at law or in damages inadequate. Accordingly, the parties agree that the
Company shall be entitled to injunctive relief against Employee in the event of
any breach or threatened breach of any such provisions by Employee, in addition
to any other relief (including damages) available to the Company under this
Agreement or under law.
13.2 For the Employee. The parties agree that in the event of any
breach or default by the Company of any of the covenants contained herein, and
the Company fails to cure such default within ten (10) days following receipt by
the Company of written notice thereof, then the Employee shall be entitled to
seek any and all remedies available to him under Louisiana law.
14. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
Agreement.
15. Withholdings. All compensation and benefits to Employee hereunder
shall be subject to all federal, state, local and other withholdings and similar
taxes and payments required by applicable law.
16. No Restrictions on Employee. Employee represents and warrants that
his employment with the Company does not and will not breach any agreement or
duty which Employee has to any other person, including without limitation (i)
rules or laws which restrict Employee's employment with third parties, and (ii)
confidentiality or non-competition agreements with third parties.
THE PARTIES HAVE DULY EXECUTED THIS EMPLOYMENT AGREEMENT AS OF THE DATE
FIRST WRITTEN ABOVE.
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WITNESSES: HELIX BIOMEDIX, INC. (of Colorado)
By:
------------------------ -------------------------------
Title
------------------------ ----------------------------
EMPLOYEE
------------------------
---------------------------------
R. Xxxxxxx Xxxxxx
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EMPLOYMENT AGREEMENT
This Agreement, dated as of January 1, 2000 is entered into by and
between HELIX BIOMEDIX, INC., a Colorado corporation (the "Company"), and
Xxxxxxxxx Xxxxxx, a resident of Louisiana ("Employee").
In consideration of the mutual covenants of the parties hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Period of Employment. The Company hereby employs Employee to render
services to the Company in the position and with the duties and responsibilities
described in Section 2 commencing on January 1, 2000 (the "Commencement Date"),
and extending for a term of one year thereafter, provided that such term shall
automatically renew for one additional one year period at the end of such
initial term and each subsequent renewal, unless 90 days prior to the date of
such renewal either party shall give written notice to the other party of
cancellation, and in such event Employee's employment hereunder shall terminate.
The period of time covered by the Employee's employment hereunder shall
hereafter be referred to as the "Period of Employment." The Company's employment
policies as they may be established or amended from time to time in writing
during the Period of Employment ("Company Policies") shall apply to and govern
the employment relationship between Employee and the Company, provided that in
the event of any conflict between Company Policies and the terms and conditions
of this Agreement, the terms and conditions of this Agreement shall apply.
2. Position, Duties, Responsibilities.
2.1 Position. Employee hereby accepts employment with the Company
pursuant to the terms and conditions hereof. Employee agrees to serve the
Company in the position of Vice President - Investor Relations and Corporate
Communications. Employee shall report to the Chief Executive Officer ("CEO") of
the Company. Employee shall have the powers and duties commensurate with such
position and as may be set forth in the Bylaws of the Company. Employee shall
devote her best efforts and attention to the performance of the services
customarily incident to such offices and to such other services as the CEO may,
from time to time, reasonably request.
Without limiting the generality of the foregoing, Employee understands
that she will be responsible for: (i) developing and maintaining a company
website, (ii) initiating efforts
79
to expand and develop the corporate profile of the Company, and (iii)
interfacing with shareholders, potential investors and others in the financial
community. Notwithstanding the foregoing, Employee shall not enter into any
contracts or agreements on behalf of the Company, without the prior written
consent of the Board.
2.2 Other Activities. Except upon the prior written consent of
the Board, Employee shall not during the Period of Employment engage, directly
or indirectly, in any other business activity (whether or not pursued for
pecuniary advantage) that is or may be competitive with, or that might place her
in a competing position to that of the Company or any other corporation or
entity that directly or indirectly controls, is controlled by, or is under
common control with the Company (as "Affiliated Company").
3. Compensation, Benefits, Expenses.
3.1 Compensation.
(a) Cash Payment. In consideration of the services to be
rendered hereunder, including without limitation services to any Affiliated
Company, Employee shall be paid an annual salary of $67,000 (the "Cash Payment")
plus stock in the amounts and pursuant to the method of distribution as
described in Section 3.1(b) hereunder for the initial one year term of the
Period of Employment. Employee's Cash Payment shall be payable in equal
semi-monthly installments at the time and pursuant to the procedures regularly
established, and as they may be amended, by the Company during the term of this
Agreement. Unless otherwise agreed in writing by the Company and Employee,
Employee's salary for any renewal term(s) of this Agreement shall be the same as
the initial one year term.
(b) Stock Issuances. In consideration of past services
rendered to the Company by Employee, the Company hereby agrees to issue to
Employee within thirty days following the Commencement Date, 29,315 shares of
common stock of the Company. In addition, Employee shall also be issued 29,780
shares of common stock of the Company ("Stock Payment") in exchange for services
rendered during the initial one year term of the Period of Employment. Subject
to Employee being employed by the Company, the Stock Payment shall be issued in
arrears in four quarterly issuances of 7,445 shares each, with the first such
issuance to be made on or after March 31, 1999 and a like issuance to be made on
or after the end of each of the three succeeding quarters. Each quarterly Stock
Payment shall be deemed earned by Employee on the last day of each calendar
quarter to which such Stock Payment relates; thus, upon termination of
Employee's employment with the Company for any reason, Employee shall be
entitled to those quarterly Stock Payments earned through the date of
termination but no further Stock Payments (pro-rated or otherwise) shall be due
Employee. All common stock of the Company issued to Employee hereunder shall not
be
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80
registered pursuant to the Securities Act of 1933 or the laws of any state and
will therefore be "restricted stock" for purposes of Rule 144.
Employee represents and warrants that (i) she has knowledge and
experience in business finance, securities and investments, such experience
being based on actual participation therein, (ii) she is capable of evaluating
the merits and risks of an investment in the Company's stock by virtue of the
Stock Payments and the suitability thereof as an investment therefor, (iii) she
is an experienced and sophisticated investor in investments, including
investments similar to that in the Company's stock, (iv) the Stock Payments
received hereunder will be acquired solely for investment and not with the view
toward resale or redistribution in violation of applicable securities laws, and
no assurances have been made concerning the future results of the Company or as
to the value of the Company's stock, and (v) she is an "accredited investor
within the meaning of Regulation D promulgated by the United States Securities
and Exchange Commission (the "Commission") pursuant to the Securities Act of
1933.
Employee has consulted with her own counsel in regard to the securities
laws and is fully aware (i) of the circumstances under which she is required to
hold the Company's stock, (ii) of the limitations on the transfer or disposition
of the Company' stock, and (iii) that the Company' stock must be held
indefinitely unless the transfer thereof is registered under applicable
securities laws or an exemption from registration is available.
Employee has been furnished with a copy of the Annual Report on Form
10-KSB of the Company filed with the Commission under the Securities Exchange
Act of 1934 as amended for the fiscal year ending December 31, 1998 as well as
the Forms 10-QSB filed with the Commission since that date. The Company has made
available to Employee the opportunity to ask questions and receive answers
concerning the terms and conditions of the transactions contemplated by this
Agreement and to obtain any additional information which they possess or could
reasonably acquire the purpose of verifying the accuracy of the information
furnished to Employee as set forth herein or for the purpose of considering the
transactions contemplated hereby. The Company has offered, and agrees during the
term of this Agreement, to make available to Employee upon request at any time
all exhibits filed by the Company with the Commission as part of any of the
reports filed therewith.
3.2 Benefits. Employee shall be entitled to participate in such
general benefit programs as the Company may from time to time institute for the
enjoyment and benefit of its employees, including, but not limited to,
retirement programs, insurance plans, and stock option plans for officers,
directors, and other key employees of the Company.
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81
3.3 Expenses. The Company shall reimburse Employee for reasonable
travel and other business expenses incurred by Employee in the performance of
her duties hereunder in accordance with the Company Policies.
3.4 Furniture & Equipment. In the event Employee's employment is
terminated by Employer during the Period of Employment for a reason other than
(i) "Cause" (as defined in Section 4.3 below), or (ii) her death or disability,
Employee shall be entitled to retain, free of charge, the computer and other
furniture and equipment furnished to her by Employer for her home office.
4. Termination of Employment.
4.1 By Death. The Period of Employment shall terminate
automatically upon the death of the Employee. In such event, the Company shall
pay to Employee's beneficiaries or her estate, as the case may be, any accrued
but not yet paid Cash Payments and any earned but yet unissued Stock Payments,
any benefits under any plans of the Company in which Employee is a participant
to the full extent of Employee's rights under such plans, and any appropriate
business expenses incurred by Employee in connection with his duties hereunder,
all to the date of termination (collectively "Accrued Compensation"), but no
other compensation or reimbursement of any kind, including, without limitation,
severance compensation, and thereafter, the Company's obligations hereunder
shall terminate.
4.2 By Disability. If the Employee is prevented from properly
performing her duties hereunder by reason of any physical or mental incapacity
for a period of more than 45 days in the aggregate in any 365-day period, then,
to the extent permitted by law, the Company may terminate the Period of
Employment on the 45th day of such incapacity. In such event, the Company shall
pay to Employee all Accrued Compensation through the effective date of
termination, but no other compensation or reimbursement of any kind, including
without limitation, severance compensation, and thereafter the Company's
obligations hereunder shall terminate. Nothing in this Section shall affect
Employee's rights under any disability plan in which she is a participant.
4.3 By Company for Cause. The Company may terminate Employee's
employment for Cause (as defined below) without liability at any time with or
without advance notice to the Employee. The Company shall pay Employee all
Accrued Compensation, but no other compensation or reimbursement of any kind,
including without limitation, severance compensation, and thereafter the
Company's obligations hereunder shall terminate. Termination shall be for
"Cause" in the event of the occurrence of any of the following: (i) any action
or failure to act by Employee which was performed in bad faith and to the
detriment of the Company; (ii) Employee refuses or fails to act in accordance
with any
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82
lawful and proper direction or order of the Board; (iii) Employee willfully
wantonly disregards performing the duties of employment; (iv) Employee is
convicted of a crime involving Employer or any felony; or (v) Employee breaches
any material term of this Agreement ; provided that in the event that any of the
foregoing events is capable of being cured, the Company shall provide written
notice to the Employee describing the nature of such event and the Employee
shall thereafter have ten (10) days to cure such event.
4.4 By The Parties Without Cause. At any time the parties hereto
may terminate this Agreement by mutual agreement of the parties, the terms and
conditions of such termination to be set forth in a written agreement between
the Company and Employee.
4.5 Termination Obligations. Employee hereby acknowledges and
agrees that all personal property, including, without limitation, all books,
manuals, records, reports, notes, contracts, lists, and other documents,
proprietary information, copies of any of the foregoing, and equipment furnished
to or prepared by Employee in the course of or incident to her employment,
belongs to the Company and shall be delivered to the Company upon termination of
the Period of Employment (except to the extent otherwise provided in Section 3.4
above).
5. Intellectual Property, Confidentiality, Non-Competition.
5.1 Intellectual Property. Employee agrees to disclose to the
Company promptly, all inventions, discoveries and/or original works of
authorship or compilations thereof (hereinafter referred to as "Technologies")
including without limitation products, processes, designs, formulas,
specifications, prototype, models, samples, economies, reports or manuscripts as
well as all improvements made thereto, that are conceived, developed and/or
reduced to practice by Employee during the term of this Agreement and within the
scope of work and duties performed by Employee for the Company. The Employee
also agrees to assign to the Company Employee's entire right, title, and
interest in said Technologies and to any patent(s), copyright(s), trademark(s)
or service xxxx(s) which may be issued thereon by any of the various states,
including Louisiana, the United States of America, and/or any foreign country
and/or any political subdivision thereof, under any applicable state, federal,
or foreign laws or international conventions. Further, Employee agrees to make
no other assignment, grant, mortgage, license or agreement affecting the rights
and property to be assigned pursuant to this paragraph without first obtaining
the express written consent of the Company. When requested to so do, during or
subsequent to Employee's employment with the Company, at no out-of-pocket
expense to Employee, Employee agrees to communicate and deliver all facts,
information and data concerning said Technologies and improvements thereto, if
any, to the Company or its designee; to execute all initial, divisional,
continuing, substitute, renewal, or reissue applications for letters patent or
copyrights, trademarks and/or service marks, foreign or domestic, as well as
make or
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83
execute all rightful oaths, declarations, assignments, powers of attorney and/or
other documents, and generally, do everything reasonably necessary for securing,
maintaining and enforcing the Company's rights in and to said Technologies and
improvements thereto and for vesting title therein in the Company or its
designee. The undertakings set forth in this Paragraph 5.1 shall survive the
termination of this Agreement.
5.2 Confidentiality. Employee acknowledges that during her
employment with the Company, Employee may receive, make use of, or add to the
Company's Confidential Information defined for the purposes of this Agreement as
consisting of, but not limited to (a) proprietary information relating to
compositions, structure and formulations of membrane disruptive peptides
(cytoporins) and applications thereof for pharmaceutical and non-drug use; (b)
product designs, processes, formulas, specifications, prototypes, models,
samples, economies, data, records, reports, manuscripts, and other materials of
a proprietary nature; (c) records and policy matters relating to finance,
accounting, sales, personnel, property, management, and operations; and (d)
matters relating to the Company's operations such as its clients lists, its
compilation of its clients' service requirements, its price and fee structures,
its cost of services, and its cost of operations. Employee understands and
agrees that said Confidential Information is disclosed to Employee in confidence
and is to be used for the Company's benefit only. Employee agrees that he/she
will keep all such information confidential at all times during and after her
employment with the Company; will not disclose or communicate such Confidential
Information to any third party without the express, written consent of the
Company; and will not use such Confidential Information on her own behalf or on
behalf of any third party. In view of the nature of the Confidential Information
the Employee will receive during the course of her employment, Employee
understands and agrees that any unauthorized disclosure to third parties of said
Confidential Information or other violation or threatened violation of this
Agreement would cause irreparable damage to the trade secret status of the
Confidential Information and to the Company and that the Company shall be
entitled to seek a judicial injunction prohibiting Employee from any such
disclosure, attempted disclosures, violation or threatened violation. The
undertakings set forth in this Paragraph 5.2 shall survive the termination of
this Agreement.
5.3 Non-competition Covenants. Employee covenants and agrees
that, during the term of this Agreement and for a period of two years following
termination of Employee's employment with the Company, she shall not (i) engage,
directly or indirectly, in any other business activity that is competitive with,
or that places her in a competing position to that of the Company or an
Affiliated Company within the Parishes of East Baton Rouge, Jefferson and
Orleans, Louisiana; or (ii) hire, solicit, or attempt to hire on behalf of
himself or any other party any employee or exclusive consultant of the Company.
For purposes of this Agreement, the Company's business is defined as (i)
developing, testing, patenting, and manufacturing synthetic bioactive peptides
(small proteins) having applications in the
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84
pharmaceutical and health care fields, (ii) seeking patent protection to protect
its proprietary technology, and (iii) licensing its technology and in seeking
strategic corporate alliances for further development and commercialization of
same.
In view of the national nature of the Company's business,
Employee further agrees that during the term of this Agreement and for a period
of two years following termination of Employee's employment with the Company,
Employee shall not engage, directly or indirectly, in any other business
activity that is competitive with, or that places her in a competing position to
that of the Company or any Affiliated Company, within any of the forty-nine
states of the United States of America other than Louisiana. Anything contained
herein to the contrary notwithstanding, this paragraph only of this Section 5.3
shall be governed by and enforceable in accordance with the laws of the state in
which it is being enforced against Employee.
If any court of proper jurisdiction finds that this covenant is
overly broad or unenforceable for any reason whatsoever, then it is hereby
agreed that this covenant will be reduced or amended to be enforceable to the
extent allowable under applicable law. A violation of this covenant not to
compete by Employee shall entitle the Company to recover all damages for the
loss sustained and the profit of which the Company has been deprived.
Additionally, the Company is entitled to injunctive relief in enforcing the
terms of this covenant not to compete without the necessity of proving
irreparable injury.
6. Assignment: Successors and Assigns. Employee shall not assign, sell,
transfer, delegate or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any rights or obligations under this
Agreement, nor shall Employee's rights be subject to encumbrance or the claims
of creditors. Any such purported assignment, transfer, or delegation shall be
null and void. Nothing in this Agreement shall prevent the consolidation of the
Company with, its acquisition by, or its merger into, any other corporation, or
the sale by the Company of all or substantially all of its properties or assets
or stock in an arm's length transaction (the foregoing are collectively referred
to herein as an "Acquisition"), or the assignment by the Company of this
Agreement and the performance of its obligations hereunder in connection with
any such Acquisition or to any successor in interest or any Affiliated Company.
Subject to the foregoing this Agreement shall be binding upon and shall inure to
the benefit of the parties and their respective heirs, legal representatives,
successors, and permitted assigns, and shall not benefit any person or entity
other than those enumerated above.
7. Notices. All notices and other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given
if delivered personally or by overnight courier upon receipt or three days after
deposit in the Untied States mail, return receipt requested, and addressed to
the Employee at:
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85
Xxxxxxxxx Xxxxxx
----------------------
----------------------
or to the Company at:
Helix BioMedix, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Chief Executive Officer
Either party may change its address for purposes of this Section by
giving notice as set forth above.
8. Entire Agreement. This Agreement represents the entire understanding
of the parties with respect to the subject matter hereof, and may be amended
only by a writing signed by the parties hereto. This Agreement, along with any
amendments hereto, supersede any prior negotiations, offers, or agreements
between the Company and the Employee with regard to the subject matter hereof.
9. Amendments: Waivers. This Agreement may not be modified, amended, or
changed except by an instrument in writing, signed by the Employee and by a duly
authorized representative of the Company other than Employee. Either party may
waive compliance by the other party with any provision of this Agreement;
provided, however, that such waiver shall not operate as a waiver of, or
estoppel with respect to, any other or subsequent failure. No failure to
exercise and no delay in exercising any right, remedy, or power hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, remedy, or power provided herein or by law or in equity.
10. Severability. If any provision of this Agreement, as applied to any
person or circumstances, is declared by a court of competent jurisdiction to be
illegal, invalid or unenforceable the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as to
which it is held illegal, invalid or unenforceable, shall not be affected
thereby. If, moreover, any one or more of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to time,
duration, geographical scope, activity or subject, it shall be construed by
limiting and reducing it, so as to be enforceable to the extent compatible with
the applicable law as it shall then appear.
11. Governing Law: Jurisdiction and Venue. This Agreement shall be
governed by and construed in accordance with the laws of the State of Louisiana.
The parties consent to
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86
the jurisdiction of all federal and state courts in Louisiana, and venue shall
lie exclusively in East Baton Rouge Parish, Louisiana.
12. Employee Acknowledgment. Employee acknowledges (i) that she has
consulted with or has had the opportunity to consult with independent counsel of
her own choice concerning this Agreement, and has been advised to do so by the
Company, and (ii) that she has read and understands the Agreement, is fully
aware of its legal effect, and has entered into it freely based on her own
judgment.
13. Remedies.
13.1 For the Company. The parties agree that the services to be
rendered by Employee hereunder are of a unique nature and that in the event of
any breach or threatened breach of any of the covenants contained herein, the
damage or imminent damage to the value and the goodwill of the Company's
business will be irreparable and extremely difficult to estimate, making any
remedy at law or in damages inadequate. Accordingly, the parties agree that the
Company shall be entitled to injunctive relief against Employee in the event of
any breach or threatened breach of any such provisions by Employee, in addition
to any other relief (including damages) available to the Company under this
Agreement or under law.
13.2 For the Employee. The parties agree that in the event of any
breach or default by the Company of any of the covenants contained herein, and
the Company fails to cure such default within ten (10) days following receipt by
the Company of written notice thereof, then the Employee shall be entitled to
seek any and all remedies available to her under Louisiana law.
14. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
Agreement.
15. Withholdings. All compensation and benefits to Employee hereunder
shall be subject to all federal, state, local and other withholdings and similar
taxes and payments required by applicable law.
16. No Restrictions on Employee. Employee represents and warrants that
her employment with the Company does not and will not breach any agreement or
duty which Employee has to any other person, including without limitation (i)
rules or laws which restrict Employee's employment with third parties, and (ii)
confidentiality or non-competition agreements with third parties.
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87
THE PARTIES HAVE DULY EXECUTED THIS EMPLOYMENT AGREEMENT AS OF THE DATE
FIRST WRITTEN ABOVE.
WITNESSES: HELIX BIOMEDIX, INC. (of Colorado)
By:
------------------------ -------------------------------
R. Xxxxxxx Xxxxxx, Chief Executive
------------------------ Officer
EMPLOYEE
------------------------
------------------------ ---------------------------------
Xxxxxxxxx Xxxxxx
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88
ADMINISTRATIVE SERVICES, FINANCIAL MANAGEMENT
AND OFFICE SHARING AGREEMENT
THIS ADMINISTRATIVE SERVICES, FINANCIAL MANAGEMENT AND OFFICE SHARING
AGREEMENT (the "Agreement") is made and entered into between XXXXXX FINANCE,
INC. ("BFI"), a Louisiana corporation with its principal offices located at 000
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxx 00000, appearing herein
through its undersigned duly authorized officer; and HELIX BIOMEDIX, INC.
("Helix"), a Colorado corporation with its principal offices located at 000
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxx 00000, appearing herein
through its undersigned duly authorized officer.
In consideration of the mutual promises and covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
I. ADMINISTRATIVE SERVICES AND FINANCIAL MANAGEMENT
During the term of this Agreement, BFI agrees to perform general
administrative and clerical services for Helix, including (i) maintaining the
primary telephone and facsimile lines for Helix and answering the telephone
during regular business hours, (ii) greeting guests and business associates of
Helix, (iii) performing the general bookkeeping functions for Helix, (iv)
performing all payroll services for Helix, (v) opening and routing incoming mail
and faxes, and (vi) similar administrative and clerical functions designated by
the Board of Directors of Helix. BFI also agrees to provide general financial
management and consulting services to Helix from time to time on an as-needed
basis. Such financial management and consulting services shall be provided by
BFI's senior consultant, R. Xxxxxxx Xxxxxx. BFI agrees to perform all of such
services in a good, professional and timely manner.
II. OFFICE SHARING
During the term of this Agreement, BFI agrees to make available to Helix
for use by Helix (i) the full time use of one office located within BFI's
premises at 000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxx 00000, and
(ii) the periodic use of a conference room located within BFI's office suite, as
requested by Helix from time to time. BFI represents and warrants to Helix that
the arrangement contemplated herein does not violate BFI's lease agreement with
the landlord, or to the extent it would otherwise violate the terms of such
lease, BFI has obtained the written consent of the landlord. Helix agrees to
provide BFI with reasonable advanced notice of its need for a conference room.
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III. TERM
This Agreement shall be effective as of January 1, 2000, and shall
expire on December 31, 2000; thereafter, this Agreement shall automatically
renew on a month to month basis unless either party elects to terminate this
Agreement by thirty (30) days' prior written notice to the other party.
Notwithstanding the foregoing, Helix may terminate this Agreement at any time
upon written notice to BFI; provided, that if Helix terminates this Agreement
during the initial one year term for a reason other than either of (a) BFI's
default under this Agreement, or (b) the termination of R. Xxxxxxx Xxxxxx'x
employment agreement dated of even date herewith for "cause" (as defined in such
employment agreement), then BFI shall be entitled to one-half (50%) of the
compensation which would otherwise have been due BFI hereunder for the then
remaining portion of the initial one year term. The Board of Directors of Helix
(or any officer other than Xxxxxx designated by the Board) shall have the power
and authority to act on behalf of Helix with respect to this Agreement.
IV. COMPENSATION
As compensation for all past services rendered by and all future
services which may be rendered by BFI under this Agreement, Helix shall pay to
BFI (i) $2,000 upon the full execution of this Agreement, and (ii) $7,500 per
month during the term hereof, with such monthly payments being due and payable
in advance on or before the 5th day of each month. BFI shall not be entitled to
any other compensation or cost reimbursement, including the cost of or
depreciation on furniture, fixtures and equipment or utilities charges;
provided, however, that Helix shall pay all charges for the telephone line(s)
devoted exclusively to Helix's use.
V. ASSIGNABILITY
Neither party hereto shall be entitled to assign this Agreement.
VI. INDEMNITY
BFI agrees to protect, defend and indemnify and hold Helix harmless for
any loss, cost, damage, expense, liability, including reasonable attorney's
fees, for any claims or charges, against Helix that are caused by or result from
a material breach of this Agreement by BFI or the gross negligence or
intentional misconduct of BFI.
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VII. NOTICES
All notices, demands and requests shall be in writing and shall be given by
hand, or by certified mail, return receipt requested, postage prepaid, deposited
in the U.S. mails, or by telecopy addressed as follows:
If to BFI:
Xxxxxx Finance, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
If to Helix:
Helix Biomedix, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
With a copy to:
Xxxx X. Xxxxxxxx
KEAN, MILLER, HAWTHORNE, X'XXXXXX,
XxXXXXX & XXXXXX, L.L.P.
P. O. Box 3513 (70821)
Xxxxx 0000, Xxx Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Telephone: (000)000-0000
Facsimile: (000) 000-0000
Notices shall be effective upon delivery if given by hand, or, if given
by mail (as described above), shall be effective three (3) business days after
deposit in the U.S. mails, properly addressed to the party to be notified, or,
if given by facsimile, shall be effective on the business day following the day
on which receipt was confirmed. Either party may change the address to which
notices shall be given to it as required hereby by providing notice of such
change in the manner provided therein.
VIII. GOVERNING LAW
This Agreement shall be governed and construed in accordance with
the Laws of the State of Louisiana.
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IX. INDEPENDENT CONTRACTOR
Nothing contained in this Agreement shall be deemed or construed by the
parties hereto or by any third person to create the relationship of principal
and agent, or of partnership, or of joint venture, or of any other association
between the parties other than that of Independent Contractor.
X. MISCELLANEOUS
10.1 Headings. Section headings are for convenience of reference only
and shall not be used to construe the meaning of any provisions of this
Agreement.
10.2 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which shall together
constitute one Agreement.
10.3 Authority. Each individual signing this Agreement warrants that
such execution has been duly authorized by the party for which he or she is
signing. The execution and performance of this Agreement by each party has been
duly authorized by all applicable laws and regulations and all necessary
corporate action, and this Agreement constitutes the valid and enforceable
obligation of each party in accordance with its terms.
10.4 Amendment. This Agreement may not be modified except in writing
executed by the party to be charged.
10.5 Entire Agreement. This Agreement constitutes the entire agreement
of the parties hereto and supersedes all prior agreements and representations
with respect to the subject matter hereof, and the Agreement cannot be modified
in any respect except by a writing executed by BFI and Helix.
10.6 Attorney's Fees. In the event that either party hereto brings legal
action against the other arising out of the Agreement, the prevailing party
shall be entitled to recover from the other party all costs of suit and
reasonable attorney's fees.
IN WITNESS WHEREOF, the undersigned have executed this agreement as of
November 1, 1999.
WITNESSES: BFI:
XXXXXX FINANCE, INC.
a Louisiana corporation
By:
------------------------------- ---------------------------------
R. Xxxxxxx Xxxxxx, President
-------------------------------
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WITNESSES: HELIX:
HELIX BIOMEDIX, INC.
a Colorado corporation
By:
-------------------------------- --------------------------------------
Its:
-------------------------------- ----------------------------------
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CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this "Agreement"), dated as of____________
_____, 2000, is entered into by and among HELIX BIOMEDIX, INC., a Colorado
corporation ("Helix"), and THE PAISLEY GROUP, LLC, a Washington limited
liability company ("Consultant").
PRELIMINARY RECITALS
WHEREAS, Helix, headquartered in New Orleans Louisiana, is a publicly
owned biotechnology company which is engaged in (i) developing, testing,
patenting, and manufacturing synthetic bioactive peptides (small proteins)
having applications in the pharmaceutical and health care fields, and (ii)
licensing its proprietary technology and in seeking strategic corporate
alliances for further development and commercialization of its technology
(collectively, the "Business"), and
WHEREAS, Helix desires outside professional assistance in various areas
of strategic and financial planning and believes that Consultant has experience
and expertise that will be valuable to Helix, and
WHEREAS, Helix desires to engage Consultant as a consultant outside and
apart from his employment by Prudential Securities, Inc., and Consultant desires
to perform consulting services for Helix outside and apart from his employment
by Prudential Securities, Inc., under the terms and conditions set forth herein,
and
WHEREAS, Consultant has obtained the approval of Prudential Securities,
Inc., to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
of the parties hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Consulting.
1.1 Consulting Services. Helix hereby engages Consultant, and
Consultant hereby accepts such engagement and agrees to serve as consultant to
Helix concerning the Business for a period of one year, beginning on the date
hereof (the "Consulting Period"). In connection with the performance of its
duties, Consultant shall cause Consultant's duties hereunder to be performed
primarily by Xxxxxx Xxxxxxx (the "Consulting Principal").
1.2 Duties. Consultant shall faithfully and to the best of its
ability perform the duties assigned by the Board of Directors of Helix and shall
serve under the direction of the President
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and Chief Executive Officer of Helix. These duties shall include, without
limitation, the following duties:
(a) strategic planning,
(b) assisting Helix in developing and monitoring business and
science plans,
(c) assisting Helix in seeking additional financing,
(d) assisting Helix with efforts to enhance shareholder value,
and
(e) reporting on a quarterly basis Consultant's progress in
respect of duties assigned by Board, in a format
reasonably requested by the Chief Executive Officer of
Helix.
1.3 Relationship of Parties. Consultant shall be deemed an
independent contractor and not an employee of Helix. All letterhead, business
cards and promotional materials used or distributed by Consultant shall present
Consultant as a business consultant to, and not an employee or principal of,
Helix. Consultant shall be responsible for all taxes associated with payment
hereunder, including but not limited to income taxes and social security taxes.
1.4 Expenses. All ordinary and reasonable out-of-pocket expenses
incurred by Consultant solely as a result of the performance of Consultant's
services as assigned pursuant to Section 1.2 above, including reasonable travel
expenses, shall be reimbursed to Consultant by Helix, provided that Consultant
shall have submitted an invoice together with other documentation of such
expenses as Helix may reasonably require.
1.5 Compensation.
(a) As the sole consideration for the services to be rendered by
Consultant hereunder, its agreement not to compete with Helix and its
agreement to promote services for and through Helix during the
Consulting Period, Helix hereby grants to Consultant the option
("Option") to purchase an aggregate of 80,000 shares of the Helix's
common stock at an option price of $1.50 per share, during that period
commencing on the date that the applicable Option(s) vests and ending on
December 31, 2009, when any and all unexercised Options granted herein
shall expire and terminate. These Options shall vest in twelve blocks,
as follows: Consultant shall become vested in Options for 6,666 shares
upon execution of this Agreement, and shall become vested in Options for
6,666 on the same day of each of the next successive ten months, and
shall become vested in Options for 6,674 on the date eleven months from
the date of this Agreement, provided that this Agreement remains in
effect and Consultant is not in default under this Agreement as of each
such vesting date. Upon termination of this Agreement, Consultant shall
be entitled only to those Options which have vested as of the date of
termination.
(b) In addition to the Options described in subparagraph (a)
above, Helix hereby grants to Consultant Options to purchase up to an
aggregate of 50,000 shares of common
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stock of Helix, with such Options being subject to and conditional upon
the occurrence of one or more "Trigger Events" (as defined below), at
the price of $1.50 per share, and which Options shall expire on December
31, 2009. A "Trigger Event" is the first time during the term of this
Agreement that an aggregate volume of 240,000 or more shares of common
stock of Helix are traded on the OTCBB over a period of five consecutive
business days at a price equal to or greater than the applicable
"Triggering Event Stock Price", in accordance with the following:
Triggering Event Stock Price Options
(Dollars per share) (Number of Shares of Helix Stock)
----------------------------- ---------------------------------
3 5/8 10,000
4 1/4 10,000
4 7/8 10,000
5 3/8 10,000
5 7/8 10,000
The "Triggering Event Stock Price" of Helix Stock shall be determined by
reference to the prices for shares of such stock as reported on any
stock exchange, the Nasdaq, or on the OTC bulletin board quotation
system.
(c) In the event of any change in the outstanding shares of
common stock by reason of any stock dividend or split, recapitalization,
merger, consolidation, combination or exchange of shares or other
similar corporate change, the maximum aggregate number and class of
shares of common stock which may be purchased by Consultant pursuant to
the Options will be equitably adjusted for such event.
(d) At the election of the Company in its discretion, the Options
described in this Section 1.5 may be re-characterized as warrants which
may or may not be evidenced by separate warrant certificates.
1.6 Restricted Stock
(a) Consultant recognizes and understands that neither the
Options nor the shares of Common Stock of Helix to be purchased by
Consultant pursuant to the Options (collectively, the "Securities") will
upon initial issuance be registered under the Securities Act of 1933
("Securities Act"), or under the securities laws of any state (the
"securities laws"). The securities are not being so registered in
reliance upon exemptions from the Securities Act and the securities laws
which are predicated, in part, on the representations, warranties and
agreements of the Consultant contained herein.
(b) Consultant represents and warrants that (i) the Consulting
Principal has knowledge and experience in business, finance, securities
and investments, such experience being based on actual participation
therein, (ii) the Consulting Principal is capable of evaluating the
merits and risks of an investment in the Securities and the suitability
thereof as
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an investment therefor, (iii) the Consulting Principal is an experienced
and sophisticated investor in investments, including investments similar
to that of the Securities, (iv) Securities to be acquired by it will be
acquired solely for investment and not with a view toward resale or
redistribution in violation of the securities laws, and no assurances
have been made concerning the future results of Helix or as to the value
of the Securities, (v) it (and the Consulting Principal) is an
"accredited investor" within the meaning of Regulation D promulgated by
the United States Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act, and (vi) the Consulting Principal is the
sole member/owner of Consultant.
(c) Consultant has consulted with its own counsel in regard to
the securities laws and is fully aware (i) of the circumstances under
which it is required to hold the Securities, (ii) of the limitations on
the transfer or disposition of the Securities, and (iii) that the
securities must be held indefinitely unless the transfer thereof is
registered under the securities laws or an exemption from registration
is available.
(d) Consultant the Consulting Principal have been furnished with
a copy of the Annual Report on Form 10-KSB of Helix filed with the
Commission under the Securities Exchange Act of 1934, as amended, for
the fiscal year ended December 31, 1999, and the Form 10-QSB quarterly
report for the period ended June 30, 2000. Helix has made available to
Consultant the opportunity to ask questions and receive answers
concerning the terms and conditions of the transactions contemplated by
this Agreement and to obtain any additional information which they
possess or could reasonably acquire the purpose of verifying the
accuracy of the information furnished to Consultant as set forth herein
or for the purpose of considering the transactions contemplated hereby.
Helix has offered to, and agrees during the term of this Agreement, make
available to Consultant upon request at any time all exhibits filed by
Helix with the Commission as part of any of the reports filed therewith.
1.7 Company Information. In connection with Consultant's
engagement, Helix will furnish Consultant and/or the Consulting Principal with
all information concerning Helix which Consultant and/or the Consulting
Principal shall reasonably request. Helix represents and warrants that all such
information concerning Helix will be true and accurate in all material respects
and will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make statements therein not misleading in
light of the circumstances under which such statements are made. Helix
acknowledges and agrees that Consultant and the Consulting Principal will be
using and relying upon such information supplied by Helix and its officers,
agents and others concerning Helix without independent investigation or
verification thereof or independent appraisal by Consultant or the Consulting
Principal.
1.8 Restrictive Covenant. Except as otherwise agreed to in
writing by Helix, during the term of this Agreement and for a period of two
years thereafter, neither Consultant nor the Consulting Principal shall either
as an individual on his own account; as a partner, joint venturer, consultant,
agent, salesman for any person; as an officer, director or stockholder (other
than a beneficial holder of not more than 5% of the outstanding voting stock of
a company having at least 250 holders of voting stock) of a corporation; or
otherwise, directly or indirectly:
(a) enter into or engage in any business or consult with any
business or entity competitive with Helix anywhere in the world;
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(b) solicit or attempt to solicit any of Helix customers with
whom Consultant has had contact as a Consultant or employee of Helix
with the intent or purpose to perform for such customer the same or
similar services which Consultant performed for such customer during the
term of his service hereunder or employment by Helix;
(c) employ or solicit, or attempt to employ or solicit, for
himself or any third party, the employment of any of Helix's employees;
or
(d) induce or attempt to induce any employee, consultant or agent
of Helix to discontinue services to Helix.
The provisions of this subsection 1.8 shall survive the termination of
this Agreement.
2. Assignment. No party hereto may assign or delegate any of its rights
or obligations hereunder without the prior written consent of the other party
hereto. Except as otherwise expressly provided herein, all covenants and
agreements contained in this Agreement by or on behalf of any of the parties
hereto shall be binding and inure to the benefit of the respective legal
representatives, heirs, successors affiliates and assigns of the parties hereto,
whether so expressed or not.
3. Severability. If any provision of this Agreement is held to be
unenforceable for any reason, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the parties to the extent possible.
In any event, all other provisions of this Agreement shall be deemed valid and
enforceable to the full extent.
4. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same Agreement.
5. Descriptive Headings: Interpretation. The descriptive headings in
this Agreement are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement. The use of the word "including" in this Agreement shall be by way of
example rather than by limitation.
6. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been duly given if (i) delivered personally
to the recipient, (ii) sent to the recipient by reputable express courier
service (charges prepaid) or mailed to the recipient by certified or registered
mail, return receipt and postage prepaid, or (iii) transmitted by telecopy to
the recipient with a confirmation copy to follow the next day to be delivered by
overnight carrier. Such notices, demands and other communication shall be sent
to the addresses indicated below:
(a) If to Consultant:
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---------------------
---------------------
(b) If to Helix:
Helix Biomedix, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Attn: Chief Executive Officer
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party. The
effective date of such notice shall be (w) the date such notice is personally
delivered, (x) three days after the date of mailing if sent by certified or
registered mail, (y) one day after date of delivery to the overnight courier if
sent by overnight courier or (z) the next business day after the date of
transmission by telecopy or e-mail.
7. Confidential Information and Discoveries. Consultant and the
Consulting Principal agree that all information of a technical or business
nature such as know-how, trade secrets, secret business information, plans,
data, processes, techniques, customer information, inventions, discoveries,
formulae, patterns, devices, etc., ("Confidential Information") pertaining to
the business of Helix, is a valuable business property right of Helix.
Consultant and the Consulting Principals agree that such Confidential
Information, whether in written, verbal or model form, shall not be disclosed to
anyone outside the employment of Helix or otherwise used by Consultant or the
Consulting Principal for any purpose other than fulfillment of their respective
obligations under this Agreement, without the express authorization of Helix.
Confidential Information does not include information which Consultant or the
Consulting Principal can demonstrate (i) has become generally available to the
public other than as a result of a disclosure by Consultant or the Consulting
Principal, (ii) has become available to Consultant or the Consulting Principal
on a non-confidential basis from a source other than Helix, provided such source
is not bound by a confidentiality agreement with Helix or otherwise prohibited
from transmitting the information to Consultant or the Consulting Principal by a
contractual, legal or fiduciary obligation.
Any and all improvements, inventions, discoveries, formulae or processes
in any way related to Helix's business which Consultant or the Consulting
Principal may conceive or make during his regular working hours or otherwise
shall be the sole and exclusive property of Helix and Consultant and the
Consulting Principal will disclose the same to Helix and will, whenever
requested by Helix to do so (either during the terms of this Agreement or
thereafter), execute and assign any and all applications, assignments and/or
other instruments and do all things which Helix may deem necessary or
appropriate in order to apply for, obtain, maintain, enforce and defend patents,
copyrights, trademarks or other forms of protection, or in order to assign and
convey or otherwise make available to Helix the sole and exclusive right, title
and interest in and to said improvements, inventions, discoveries, formulae,
processes, applications or patents.
No provision in this Agreement is intended to require assignment of any
of the rights of Consultant or the Consulting Principal in an invention if no
equipment, supplies, facilities, or trade secret information of Helix was used,
and the invention was developed entirely on the Consultant's or
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Consulting Principal's own time; and the invention does not relate to the
business of Helix or to Helix's actual or demonstrably anticipated research or
development; and does not result from any work performed by the Consultant or
the Consulting Principal for Helix.
The provisions of this Section 7 shall survive the termination of this
Agreement.
8. Return of Documents. Upon the termination of this Agreement for any
reason, Consultant shall forthwith return and deliver to Helix and shall not
retain any original or copies of any books, papers, price lists or customer
contracts, bids or customer lists, files, books of account, notebooks and other
documents and data (in printed, audio, video, electronic or other form) relating
to the performance of services rendered by Consultant hereunder, all of which
materials are hereby agreed to be the property of Helix.
9. Preliminary Recitals. The Preliminary Recitals set forth in the
preamble hereto are hereby incorporated and made part of this Agreement.
10. Entire Agreement. Except as otherwise expressly set forth herein,
this Agreement sets forth the entire understanding of the parties, and
supersedes and preempts all prior oral or written understandings and agreements
with respect to the subject matter hereof.
11. Governing Law. This Agreement shall be construed and enforced in
accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Agreement shall be governed by, the laws
of the State of Delaware.
12. Representations and Warranties.
12.1 Helix represents and warrants that: (i) Helix is a
corporation, duly organized, validly existing and in good standing under the
laws of the State of Colorado, has duly authorized the execution and performance
of this Agreement, and such execution and performance will not violate its
Articles of Incorporation, Bylaws, or any contract or agreement by which it is
bound; and (ii) this Agreement is valid and enforceable against Helix in
accordance with its terms, and each instrument to be executed by Helix pursuant
to this Agreement will, when executed and delivered, be enforceable in
accordance with its terms, subject to bankruptcy, insolvency and similar laws
affecting creditors' rights generally.
12.2 Consultant represents and warrants that: (i) Consultant is a
limited liability company duly organized, validly existing and in good standing
under the laws of the State of Washington, has duly authorized the execution and
performance of this Agreement, and such execution and performance will not
violate its articles of organization, operating agreement, bylaws or any
contract or agreement by which it is bound; and (ii) this Agreement is valid and
enforceable against Consultant and the Consulting Principal in accordance with
its terms, and each instrument to be executed by Consultant and the Consulting
Principal pursuant to this Agreement will, when executed and delivered, be
enforceable in accordance with its terms, subject to bankruptcy, insolvency and
similar laws affecting creditors' rights generally.
13. Compliance with Laws. Consultant shall comply with all federal,
state, and local laws, regulations, ordinances, orders, decrees, resolutions,
and other acts of any governmental entity,
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including, but not limited to, securities laws and regulations that are
applicable to this Agreement and the work and services performed or provided
hereunder.
14. Attorney's Fees. If a dispute arises relating to the performance of
the obligations of either Consultant (or the Consulting Principal) or Helix
pursuant to the terms of this Agreement and legal or other costs are incurred,
the prevailing party shall be entitled to recover all reasonable costs incurred
in the defense or prosecution of the claim, including court costs, reasonable
attorney's fees, and other claim-related expenses.
15. Indemnification. Helix shall (A) indemnify Consultant and Consulting
Principal (jointly and/or severally, the "Indemnified Parties"), and hold them
harmless to the fullest extent permitted by law against any losses, claims,
damages or liabilities to which the Indemnified Parties may become subject in
connection with (i) their use of information that is inaccurate in any respect
(as a result of misrepresentation, omission, failure to update, or otherwise)
that is provided to Indemnified Parties by Helix, its representatives, agents or
advisers, regardless of whether the Indemnified Parties knew or should have
known of such inaccuracy, or (ii) any other aspect of rendering such services,
in the case of each of clauses (i) and (ii) above unless it is finally
judicially determined that such losses, claims, damages or liabilities relating
thereto arise only out of the gross negligence or willful misconduct of any of
the Indemnified Parties, and (B) reimburse Indemnified Parties for any legal or
other expenses reasonably incurred by them in connection with investigating,
preparing to defend or defending any lawsuits, claims, or other proceedings
arising in any manner out of or in connection with their performance of their
duties pursuant to the engagement contemplated herein, unless it is finally
judicially determined that the losses, claims, damages or liabilities relating
thereto arise only out of the gross negligence or willful misconduct of the
Indemnified Parties. If, for any reason, the foregoing indemnity is unavailable
to the Indemnified Parties or is insufficient to hold the Indemnified Parties
harmless (other than in the event that the losses, claims, damages or
liabilities relating thereto arise only out of the gross negligence or willful
misconduct of the Indemnified Parties), then Helix shall contribute to the
amount paid or payable by Indemnified Parties as a result of such claims,
liabilities, losses, damages, or expenses in such proportion as is appropriate
to reflect not only the relative benefits received by Helix on the one hand and
the Indemnified Parties on the other, but also the relative fault of Helix and
the Indemnified Parties, as well as any equitable considerations.
Notwithstanding the provisions of this Agreement, the aggregate contribution of
the Indemnified Parties to all claims, liabilities, losses, damages and expenses
shall not exceed the amount of the fees actually received by Consultant pursuant
to its engagement by Helix. It is hereby further agreed that the relative
benefits to Helix on the one hand and the Indemnified Parties on the other hand
with respect to the transactions contemplated in the engagement referenced above
shall be deemed to be in the same proportion as (i) the total value of the
transaction bears to (ii) the fees paid to Consultant with respect to such
transactions. Helix agrees that the indemnification and reimbursement
commitments set forth in this agreement shall apply whether or not the
Indemnified Parties are a formal party to any such lawsuits or other
proceedings, that the Indemnified Parties are entitled to retain separate
counsel of their choice in connection with any of the matters to which such
commitments relate, that such commitments shall be in addition to any liability
that Helix may have to the Indemnified Parties at common law or otherwise, and
that such commitments shall extend upon the terms set forth in this Agreement to
any controlling person, director, officer, employee, agent or affiliate of
Indemnified Parties and shall survive any termination of this Agreement;
provided that any such claim arising other than as a result of this
indemnification procedure shall serve as a set-off against any claim hereunder.
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16. Termination. This Agreement may be terminated by either party upon
30 days' advanced written notice to the other party. Any Options which have not
vested pursuant to subsection 1.5(a) or have not otherwise been earned pursuant
to subsection 1.5(b) as of the date of termination of this Agreement shall
automatically be terminated and canceled and Helix shall have no further
obligation to Consultant or the Consulting Principal in respect of such Options.
Subsection 1.8 and Sections 7 and 15 of this Agreement shall survive the
expiration or termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
HELIX BIOMEDIX, INC.
---------------------------------------
By:
R. Xxxxxxx Xxxxxx, President and Chief
Executive Officer
THE PAISLEY GROUP, LLC
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By:
Xxxxxx Xxxxxxx, Authorized Member
CONSULTING PRINCIPAL:
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Xxxxxx Xxxxxxx
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CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this "Agreement"), dated as of________ _____,
2000, is entered into by and among HELIX BIOMEDIX, INC., a Colorado corporation
("Helix"), and XXXXXXXX HILL CAPITAL PARTNERS, INC., a California corporation
("Consultant").
PRELIMINARY RECITALS
WHEREAS, Helix, headquartered in New Orleans Louisiana, is a publicly
owned biotechnology company which is engaged in (i) developing, testing,
patenting, and manufacturing synthetic bioactive peptides (small proteins)
having applications in the pharmaceutical and health care fields, and (ii)
licensing its proprietary technology and in seeking strategic corporate
alliances for further development and commercialization of its technology
(collectively, the "Business"), and
WHEREAS, Helix desires outside professional assistance in various areas
of strategic and financial planning and believes that Consultant has experience
and expertise that will be valuable to Helix, and
WHEREAS, Helix desires to engage Consultant as a consultant, and
Consultant desires to perform consulting services for Helix, under the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
of the parties hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Consulting.
1.1 Consulting Services. Helix hereby engages Consultant, and
Consultant hereby accepts such engagement and agrees to serve as consultant to
Helix concerning the Business for a period of one year, beginning on the date
hereof (the "Consulting Period"). In connection with the performance of its
duties, Consultant shall cause Consultant's duties hereunder to be performed
primarily by Xxxxxxx Xxxxxxx (the "Consulting Principal").
1.2 Duties. Consultant shall faithfully and to the best of its
ability perform the duties assigned by the Board of Directors of Helix and shall
serve under the direction of the President and Chief Executive Officer of Helix.
These duties shall include, without limitation, the following duties:
(a) strategic planning,
(b) assisting Helix in developing and monitoring business and
science plans,
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(c) assisting Helix in seeking additional financing,
(d) assist Helix with efforts to enhance shareholder value,
and
(e) reporting on a quarterly basis Consultant's progress in
respect of duties assigned by Board, in a format
reasonably requested by the Chief Executive Officer of
Helix.
1.3 Relationship of Parties. Consultant shall be deemed an
independent contractor and not an employee of Helix. All letterhead, business
cards and promotional materials used or distributed by Consultant shall present
Consultant as a business consultant to, and not an employee or principal of,
Helix. Consultant shall be responsible for all taxes associated with payment
hereunder, including but not limited to income taxes and social security taxes.
1.4 Expenses. All ordinary and reasonable out-of-pocket expenses
incurred by Consultant solely as a result of the performance of Consultant's
services as assigned pursuant to Section 1.2 above, including reasonable travel
expenses, shall be reimbursed to Consultant by Helix, provided that Consultant
shall have submitted an invoice together with other documentation of such
expenses as Helix may reasonably require.
1.5 Compensation.
(a) As the sole consideration for the services to be rendered by
Consultant hereunder, its agreement not to compete with Helix and its
agreement to promote services for and through Helix during the
Consulting Period, Helix hereby grants to Consultant the option
("Option") to purchase an aggregate of 80,000 shares of the Helix's
common stock at an option price of $1.50 per share, during that period
commencing on the date that the applicable Option(s) vests and ending on
December 31, 2009, when any and all unexercised Options granted herein
shall expire and terminate. These Options shall vest in twelve blocks,
as follows: Consultant shall become vested in Options for 6,666 shares
upon execution of this Agreement, and shall become vested in Options for
6,666 on the same day of each of the next successive ten months, and
shall become vested in Options for 6,674 on the date eleven months from
the date of this Agreement, provided that this Agreement remains in
effect and Consultant is not in default under this Agreement as of each
such vesting date. Upon termination of this Agreement, Consultant shall
be entitled only to those Options which have vested as of the date of
termination.
(b) In addition to the Options described in subparagraph (a)
above, Helix hereby grants to Consultant Options to purchase up to an
aggregate of 50,000 shares of common stock of Helix, with such Options
being subject to and conditional upon the occurrence of one or more
"Trigger Events" (as defined below), at the price of $1.50 per share,
and which Options shall expire on December 31, 2009. A "Trigger Event"
is the first time during the term of this Agreement that an aggregate
volume of 240,000 or more shares of common stock of Helix are traded on
the OTCBB over a period of five consecutive business days at a
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price equal to or greater than the applicable "Triggering Event Stock
Price", in accordance with the following:
Triggering Event Stock Price Options
(Dollars per share) (Number of Shares of Helix Stock)
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3 5/8 10,000
4 1/4 10,000
4 7/8 10,000
5 3/8 10,000
5 7/8 10,000
The "Triggering Event Stock Price" of Helix Stock shall be determined by
reference to the prices for shares of such stock as reported on any
stock exchange, the Nasdaq, or on the OTC bulletin board quotation
system.
(c) In the event of any change in the outstanding shares of
common stock by reason of any stock dividend or split, recapitalization,
merger, consolidation, combination or exchange of shares or other
similar corporate change, the maximum aggregate number and class of
shares of common stock which may be purchased by Consultant pursuant to
the Options will be equitably adjusted for such event.
(d) At the election of the Company in its discretion, the Options
described in this Section 1.5 may be re-characterized as warrants which
may or may not be evidenced by separate warrant certificates.
1.6 Restricted Stock
(a) Consultant recognizes and understands that neither the
Options nor the shares of Common Stock of Helix to be purchased by
Consultant pursuant to the Options (collectively, the "Securities") will
upon initial issuance be registered under the Securities Act of 1933
("Securities Act"), or under the securities laws of any state (the
"securities laws"). The securities are not being so registered in
reliance upon exemptions from the Securities Act and the securities laws
which are predicated, in part, on the representations, warranties and
agreements of the Consultant contained herein.
(b) Consultant represents and warrants that (i) the Consulting
Principal has knowledge and experience in business, finance, securities
and investments, such experience being based on actual participation
therein, (ii) the Consulting Principal is capable of evaluating the
merits and risks of an investment in the Securities and the suitability
thereof as an investment therefor, (iii) the Consulting Principal is an
experienced and sophisticated investor in investments, including
investments similar to that of the Securities, (iv) Securities to be
acquired by it will be acquired solely for investment and not with a
view toward resale or redistribution in violation of the securities
laws, and no assurances have been made concerning the future results of
Helix or as to the value of the Securities, (v) it (and the
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Consulting Principal) is an "accredited investor" within the meaning of
Regulation D promulgated by the United States Securities and Exchange
Commission (the "Commission") pursuant to the Securities Act, and (vi)
the Consulting Principal is the sole shareholder of Consultant.
(c) Consultant has consulted with its own counsel in regard to
the securities laws and is fully aware (i) of the circumstances under
which it is required to hold the Securities, (ii) of the limitations on
the transfer or disposition of the Securities, and (iii) that the
securities must be held indefinitely unless the transfer thereof is
registered under the securities laws or an exemption from registration
is available.
(d) Consultant the Consulting Principal have been furnished with
a copy of the Annual Report on Form 10-KSB of Helix filed with the
Commission under the Securities Exchange Act of 1934, as amended, for
the fiscal year ended December 31, 1999, and the Form 10-QSB quarterly
report for the period ended June 30, 2000. Helix has made available to
Consultant the opportunity to ask questions and receive answers
concerning the terms and conditions of the transactions contemplated by
this Agreement and to obtain any additional information which they
possess or could reasonably acquire the purpose of verifying the
accuracy of the information furnished to Consultant as set forth herein
or for the purpose of considering the transactions contemplated hereby.
Helix has offered to, and agrees during the term of this Agreement, make
available to Consultant upon request at any time all exhibits filed by
Helix with the Commission as part of any of the reports filed therewith.
1.7 Company Information. In connection with Consultant's
engagement, Helix will furnish Consultant and/or the Consulting Principal with
all information concerning Helix which Consultant and/or the Consulting
Principal shall reasonably request. Helix represents and warrants that all such
information concerning Helix will be true and accurate in all material respects
and will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make statements therein not misleading in
light of the circumstances under which such statements are made. Helix
acknowledges and agrees that Consultant and the Consulting Principal will be
using and relying upon such information supplied by Helix and its officers,
agents and others concerning Helix without independent investigation or
verification thereof or independent appraisal by Consultant or the Consulting
Principal.
1.8 Restrictive Covenant. Except as otherwise agreed to in
writing by Helix, during the term of this Agreement and for a period of two
years thereafter, neither Consultant nor the Consulting Principal shall either
as an individual on his own account; as a partner, joint venturer, consultant,
agent, salesman for any person; as an officer, director or stockholder (other
than a beneficial holder of not more than 5% of the outstanding voting stock of
a company having at least 250 holders of voting stock) of a corporation; or
otherwise, directly or indirectly:
(a) enter into or engage in any business or consult with any
business or entity competitive with Helix anywhere in the world;
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(b) solicit or attempt to solicit any of Helix customers with
whom Consultant has had contact as a Consultant or employee of Helix
with the intent or purpose to perform for such customer the same or
similar services which Consultant performed for such customer during the
term of his service hereunder or employment by Helix;
(c) employ or solicit, or attempt to employ or solicit, for
himself or any third party, the employment of any of Helix's employees;
or
(d) induce or attempt to induce any employee, consultant or agent
of Helix to discontinue services to Helix.
The provisions of this subsection 1.8 shall survive the termination of
this Agreement.
2. Assignment. No party hereto may assign or delegate any of its rights
or obligations hereunder without the prior written consent of the other party
hereto. Except as otherwise expressly provided herein, all covenants and
agreements contained in this Agreement by or on behalf of any of the parties
hereto shall be binding and inure to the benefit of the respective legal
representatives, heirs, successors affiliates and assigns of the parties hereto,
whether so expressed or not.
3. Severability. If any provision of this Agreement is held to be
unenforceable for any reason, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the parties to the extent possible.
In any event, all other provisions of this Agreement shall be deemed valid and
enforceable to the full extent.
4. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same Agreement.
5. Descriptive Headings: Interpretation. The descriptive headings in
this Agreement are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement. The use of the word "including" in this Agreement shall be by way of
example rather than by limitation.
6. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been duly given if (i) delivered personally
to the recipient, (ii) sent to the recipient by reputable express courier
service (charges prepaid) or mailed to the recipient by certified or registered
mail, return receipt and postage prepaid, or (iii) transmitted by telecopy to
the recipient with a confirmation copy to follow the next day to be delivered by
overnight carrier. Such notices, demands and other communication shall be sent
to the addresses indicated below:
(a) If to Consultant:
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(b) If to Helix:
Helix Biomedix, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Attn: Chief Executive Officer
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party. The
effective date of such notice shall be (w) the date such notice is personally
delivered, (x) three days after the date of mailing if sent by certified or
registered mail, (y) one day after date of delivery to the overnight courier if
sent by overnight courier or (z) the next business day after the date of
transmission by telecopy or e-mail.
7. Confidential Information and Discoveries. Consultant and the
Consulting Principal agree that all information of a technical or business
nature such as know-how, trade secrets, secret business information, plans,
data, processes, techniques, customer information, inventions, discoveries,
formulae, patterns, devices, etc., ("Confidential Information") pertaining to
the business of Helix, is a valuable business property right of Helix.
Consultant and the Consulting Principals agree that such Confidential
Information, whether in written, verbal or model form, shall not be disclosed to
anyone outside the employment of Helix or otherwise used by Consultant or the
Consulting Principal for any purpose other than fulfillment of their respective
obligations under this Agreement, without the express authorization of Helix.
Confidential Information does not include information which Consultant or the
Consulting Principal can demonstrate (i) has become generally available to the
public other than as a result of a disclosure by Consultant or the Consulting
Principal, (ii) has become available to Consultant or the Consulting Principal
on a non-confidential basis from a source other than Helix, provided such source
is not bound by a confidentiality agreement with Helix or otherwise prohibited
from transmitting the information to Consultant or the Consulting Principal by a
contractual, legal or fiduciary obligation.
Any and all improvements, inventions, discoveries, formulae or processes
in any way related to Helix's business which Consultant or the Consulting
Principal may conceive or make during his regular working hours or otherwise
shall be the sole and exclusive property of Helix and Consultant and the
Consulting Principal will disclose the same to Helix and will, whenever
requested by Helix to do so (either during the terms of this Agreement or
thereafter), execute and assign any and all applications, assignments and/or
other instruments and do all things which Helix may deem necessary or
appropriate in order to apply for, obtain, maintain, enforce and defend patents,
copyrights, trademarks or other forms of protection, or in order to assign and
convey or otherwise make available to Helix the sole and exclusive right, title
and interest in and to said improvements, inventions, discoveries, formulae,
processes, applications or patents.
No provision in this Agreement is intended to require assignment of any
of the rights of Consultant or the Consulting Principal in an invention if no
equipment, supplies, facilities, or trade secret information of Helix was used,
and the invention was developed entirely on the Consultant's or Consulting
Principal's own time; and the invention does not relate to the business of Helix
or to Helix's actual or demonstrably anticipated research or development; and
does not result from any work performed by the Consultant or the Consulting
Principal for Helix.
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The provisions of this Section 7 shall survive the termination of this
Agreement.
8. Return of Documents. Upon the termination of this Agreement for any
reason, Consultant shall forthwith return and deliver to Helix and shall not
retain any original or copies of any books, papers, price lists or customer
contracts, bids or customer lists, files, books of account, notebooks and other
documents and data (in printed, audio, video, electronic or other form) relating
to the performance of services rendered by Consultant hereunder, all of which
materials are hereby agreed to be the property of Helix.
9. Preliminary Recitals. The Preliminary Recitals set forth in the
preamble hereto are hereby incorporated and made part of this Agreement.
10. Entire Agreement. Except as otherwise expressly set forth herein,
this Agreement sets forth the entire understanding of the parties, and
supersedes and preempts all prior oral or written understandings and agreements
with respect to the subject matter hereof.
11. Governing Law. This Agreement shall be construed and enforced in
accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Agreement shall be governed by, the laws
of the State of Delaware.
12. Representations and Warranties.
12.1 Helix represents and warrants that: (i) Helix is a
corporation, duly organized, validly existing and in good standing under the
laws of the State of Colorado, has duly authorized the execution and performance
of this Agreement, and such execution and performance will not violate its
Articles of Incorporation, Bylaws, or any contract or agreement by which it is
bound; and (ii) this Agreement is valid and enforceable against Helix in
accordance with its terms, and each instrument to be executed by Helix pursuant
to this Agreement will, when executed and delivered, be enforceable in
accordance with its terms, subject to bankruptcy, insolvency and similar laws
affecting creditors' rights generally.
12.2 Consultant represents and warrants that: (i) Consultant is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California, has duly authorized the execution and performance of
this Agreement, and such execution and performance will not violate its Articles
of Incorporation, bylaws or any contract or agreement by which it is bound; and
(ii) this Agreement is valid and enforceable against Consultant and the
Consulting Principal in accordance with its terms, and each instrument to be
executed by Consultant and the Consulting Principal pursuant to this Agreement
will, when executed and delivered, be enforceable in accordance with its terms,
subject to bankruptcy, insolvency and similar laws affecting creditors' rights
generally.
13. Compliance with Laws. Consultant shall comply with all federal,
state, and local laws, regulations, ordinances, orders, decrees, resolutions,
and other acts of any governmental entity, including, but not limited to,
securities laws and regulations that are applicable to this Agreement and the
work and services performed or provided hereunder.
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14. Attorney's Fees. If a dispute arises relating to the performance of
the obligations of either Consultant (or the Consulting Principal) or Helix
pursuant to the terms of this Agreement and legal or other costs are incurred,
the prevailing party shall be entitled to recover all reasonable costs incurred
in the defense or prosecution of the claim, including court costs, reasonable
attorney's fees, and other claim-related expenses.
15. Indemnification. Helix shall (A) indemnify Consultant and Consulting
Principal (jointly and/or severally, the "Indemnified Parties"), and hold them
harmless to the fullest extent permitted by law against any losses, claims,
damages or liabilities to which the Indemnified Parties may become subject in
connection with (i) their use of information that is inaccurate in any respect
(as a result of misrepresentation, omission, failure to update, or otherwise)
that is provided to Indemnified Parties by Helix, its representatives, agents or
advisers, regardless of whether the Indemnified Parties knew or should have
known of such inaccuracy, or (ii) any other aspect of rendering such services,
in the case of each of clauses (i) and (ii) above unless it is finally
judicially determined that such losses, claims, damages or liabilities relating
thereto arise only out of the gross negligence or willful misconduct of any of
the Indemnified Parties, and (B) reimburse Indemnified Parties for any legal or
other expenses reasonably incurred by them in connection with investigating,
preparing to defend or defending any lawsuits, claims, or other proceedings
arising in any manner out of or in connection with their performance of their
duties pursuant to the engagement contemplated herein, unless it is finally
judicially determined that the losses, claims, damages or liabilities relating
thereto arise only out of the gross negligence or willful misconduct of the
Indemnified Parties. If, for any reason, the foregoing indemnity is unavailable
to the Indemnified Parties or is insufficient to hold the Indemnified Parties
harmless (other than in the event that the losses, claims, damages or
liabilities relating thereto arise only out of the gross negligence or willful
misconduct of the Indemnified Parties), then Helix shall contribute to the
amount paid or payable by Indemnified Parties as a result of such claims,
liabilities, losses, damages, or expenses in such proportion as is appropriate
to reflect not only the relative benefits received by Helix on the one hand and
the Indemnified Parties on the other, but also the relative fault of Helix and
the Indemnified Parties, as well as any equitable considerations.
Notwithstanding the provisions of this Agreement, the aggregate contribution of
the Indemnified Parties to all claims, liabilities, losses, damages and expenses
shall not exceed the amount of the fees actually received by Consultant pursuant
to its engagement by Helix. It is hereby further agreed that the relative
benefits to Helix on the one hand and the Indemnified Parties on the other hand
with respect to the transactions contemplated in the engagement referenced above
shall be deemed to be in the same proportion as (i) the total value of the
transaction bears to (ii) the fees paid to Consultant with respect to such
transactions. Helix agrees that the indemnification and reimbursement
commitments set forth in this agreement shall apply whether or not the
Indemnified Parties are a formal party to any such lawsuits or other
proceedings, that the Indemnified Parties are entitled to retain separate
counsel of their choice in connection with any of the matters to which such
commitments relate, that such commitments shall be in addition to any liability
that Helix may have to the Indemnified Parties at common law or otherwise, and
that such commitments shall extend upon the terms set forth in this Agreement to
any controlling person, director, officer, employee, agent or affiliate of
Indemnified Parties and shall survive any termination of this Agreement;
provided that any such claim arising other than as a result of this
indemnification procedure shall serve as a set-off against any claim hereunder.
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16. Termination. This Agreement may be terminated by either party upon
30 days' advanced written notice to the other party. Any Options which have not
vested pursuant to subsection 1.5(a) or have not otherwise been earned pursuant
to subsection 1.5(b) as of the date of termination of this Agreement shall
automatically be terminated and canceled and Helix shall have no further
obligation to Consultant or the Consulting Principal in respect of such Options.
Subsection 1.8 and Sections 7 and 15 of this Agreement shall survive the
expiration or termination of this Agreement.
17. Activities of Consultant. In connection with this engagement, it is
understood that Consultant and/or the Consulting Principal may identify and
facilitate contact between Helix and corporations or individuals that may
potentially become the Helix's joint venture partners, licensees, commercial
collaborators, agents, directors, or investors. To the extent that Consultant
and/or the Consulting Principal contact corporations or individuals as potential
joint venture partners, licensees, commercial collaborators, agents, directors,
or investors, Helix acknowledges that Consultant's and/or the Consulting
Principal's sole role is to initially contact such potential joint venture
partners, licensees, commercial collaborators, agents, directors, or investors
and refer any resulting contact to Helix or its designated agent(s).
Accordingly, Consultant and/or the Consulting Principal shall have no liability
to Helix or any other person or party resulting from their so acting in
connection with initiating such contacts referenced herein. It is explicitly
agreed that Consultant's and/or the Consulting Principal's role under this
engagement will not include, without limitation: performing due diligence;
verifying information provided to Consultant an/or the Consulting Principal or,
directly or indirectly, to other persons or parties pursuant to contacts made by
Consultant and/or the Consulting Principal as contemplated by this paragraph;
preparing any offering memoranda; or, negotiating or structuring any agreements,
licenses, commercial collaborations, or investments by or with third parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
HELIX BIOMEDIX, INC.
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By:
R. Xxxxxxx Xxxxxx, President and Chief
Executive Officer
XXXXXXXX HILL CAPITAL PARTNERS, INC.
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By:
Xxxxxxx Xxxxxxx, President
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CONSULTING PRINCIPAL:
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Xxxxxxx Xxxxxxx
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AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of December 29,
2000, by and between HELIX BIOMEDIX, INC., a Colorado corporation ("Helix" or
the "Company"), and Xxxxx X. Xxxxxxx, a resident of Louisiana ("Xxxxxxx").
In consideration of the mutual covenants of the parties hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Stock Transactions.
1.1 Options. In consideration of Ten Dollars ($10.00) and other good and
valuable consideration, Xxxxxxx hereby grants to and in favor of Helix or its
assignee(s) the following rights and options:
(a) an exclusive and irrevocable option ("First Option"), exercisable
at any time on or before February 28, 2001 ("First Option
Expiration Date"), to purchase 250,000 shares of Common Stock of
the Company at a price of $2.00 per share ("First Option Price");
(b) an exclusive and irrevocable option ("Second Option"),
exercisable at any time on or before June 30, 2001 ("Second
Option Expiration Date"), to purchase up to 75,000 additional
shares of Common Stock of the Company at a price of $2.75 per
share; and
(c) an exclusive and irrevocable option ("Third Option"), exercisable
at any time on or before the Second Option Expiration Date, to
purchase up to 75,000 additional shares of Common Stock at a
price of $3.25 per share.
The First Option, Second Option and Third Option are referred to herein
collectively as the "Options." The Options may be exercised from time to time
and shall be exercised by written notice to Xxxxxxx; the Closing shall take
place within 10 days following date of notice of exercise of the applicable
Option and the applicable purchase price shall be paid in cash at the Closing.
1.2 Conditions to Exercise of First Option. The Company's right to
exercise the First Option shall be subject to (a) the Company's having
cooperated with Xxxxxxx in connection with the preparation of patent
applications on what has generally been referred to as the Company's "third
generation peptides," which applications shall be
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reviewed, revised and finalized by Xxxxxxx (subject to approval of the Company's
patent counsel), and subject to (i) the assignment of patent applications being
executed by Xx. Xxxx as sole inventor, (ii) the completion of such applications
by Xxxxxxx, and (iii) final approval of such applications by counsel for the
Company, the Company's having filed such patent applications with the USPTO; and
(b) subject to the above described patent applications having been completed and
filed, the Company's having tendered to Therapeutic Peptides, Inc. ("TPI"), a
license agreement in substantially the form previously delivered to TPI by the
Company. The parties agree that the foregoing conditions are intended to relate
to those matters which the Company controls and that the acts or omissions of
Xxxxxxx, TPI and/or Xx. Xxxx shall have no effect on the Company's right to
exercise the First Option.
1.3 Additional Option Consideration; Extension of First Option Period.
Upon the earlier of (i) the Closing of the First Option, or (ii) February 28,
2001, Helix shall pay to Xxxxxxx $25,000 as additional consideration for the
Options. Nevertheless, if Helix (or its designee) exercises the First Option
prior to February 28, 2001, in lieu of paying Xxxxxxx $25,000 as additional
option consideration in accordance with the preceding sentence, Helix may (at
its option) elect to increase the First Option Price to $2.10 per share.
Furthermore, the Company may at its option extend the First Option Expiration
Date for up to sixty days (through April 29, 2001), in increments of thirty days
each, by paying to Xxxxxxx $3,333 for each thirty day extension, prior to
February 28, 2001, and if applicable, March 29, 2001.
1.4 Legal Opinion. Upon exercise of the applicable Option, the parties'
obligations to purchase and sell such Stock (as defined below) shall be subject
to the delivery by the Company of an opinion of counsel reasonably acceptable to
Xxxxxxx and the Company to the effect that the proposed sale of Stock is exempt
from the registration requirements of applicable securities laws.
1.5 Closing Deliveries. The shares of stock subject to sale and purchase
under paragraph 1.1 above are referred to herein collectively as the "Stock."
Upon exercise of the applicable Option, at the Closing, against the delivery to
Xxxxxxx of the applicable purchase price, Xxxxxxx shall deliver the stock
certificates representing the Stock, duly endorsed, and shall execute and
deliver such other documents (including stock powers) as may be necessary or
appropriate to fully and properly effect the sale of the Stock to the Company or
its designee.
1.6 Escrow Arrangement. Contemporaneous with the execution of this
Agreement, Xxxxxxx shall surrender to Kean, Miller, Hawthorne, X'Xxxxxx, XxXxxxx
& Xxxxxx, L.L.P. ("Xxxx Xxxxxx") stock certificates representing the Stock to
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be held in escrow pending the closing or expiration of the applicable Option
period, pursuant to the terms of an Escrow Agreement dated of even date herewith
to be entered into among Xxxxxxx, the Company and Xxxx Xxxxxx.
2. Notes. Xxxxxxx is the holder of three promissory notes made by the Company,
with each such note being in the original principal amount of $163,154.00, and
such notes having maturity dates of September 30, 2000, September 30, 2001 and
September 30, 2002, respectively (the "Notes"). The Company and Xxxxxxx have
agreed to defer payment of the Note which matured on its face on September 30,
2000; the Company agrees to pay such note in full on or before January 5, 2001.
If the First Option is exercised, the maturity dates of those Notes maturing on
September 30, 2001 and September 30, 2002, respectively, shall be extended to
January 15, 2002 and January 15, 2003, respectively; to effect the extension of
the maturity dates of such Notes, the Company may require Xxxxxxx to surrender
the original Notes, which shall be replaced with substitute notes which shall be
substantially similar to such surrendered Notes, except with respect to the
maturity dates. Xxxxxxx agrees to not sell, discount, pledge or otherwise assign
any of the Notes until the expiration of the First Option.
3. Termination of Employment Agreement; Consulting Arrangement. Xxxxxxx
acknowledges and agrees that his current employment contract with the Company
shall expire June 30, 2001 and will not be renewed. Contemporaneously herewith,
Xxxxxxx and the Company shall execute and deliver a Consulting Agreement in the
form attached, pursuant to which Xxxxxxx agrees to consult with the Company for
the two year period commencing July 1, 2001, on an as needed basis in exchange
for a monthly retainer of $5,000; in the event Xxxxxxx works more than 50 hours
during any calendar month, he will be paid $100 per hour for each hour in excess
of 50 (in addition to the retainer); Xxxxxxx may terminate the consulting
agreement upon sixty days written notice to the Company.
4. Piggyback Registration Rights. If during the three year period following the
date hereof the Company at any time proposes to register shares of its Common
Stock under the Securities Act of 1933 ("Securities Act") for sale by the
Company to the public, it will give written notice to Xxxxxxx of its intention
to do so. Upon the written request of Xxxxxxx made within 15 days after the
receipt of any such notice (which request shall specify the shares intended to
be disposed of by Xxxxxxx and the intended method of disposition thereof), the
Company will use reasonable efforts to effect the registration under the
Securities Act of up to 200,000 shares of unregistered Common Stock of the
Company owned by Xxxxxxx which the Company has been so requested to register by
Xxxxxxx. If the underwriter(s) of such offering shall inform the Company by
letter of its/their belief that the number of securities requested to be
included in such registration
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exceeds the number which can be sold in (or during the time of) such offering,
then the Company may include in such offering all securities proposed by the
Company to be sold for its own account and may decrease the number of Xxxxxxx
shares and other securities of the Company requested to be included in such
registration by decreasing the number of Xxxxxxx shares and other securities of
the Company requested to be included in such registration (pro rata on the basis
of the number of shares of such securities held by such person immediately prior
to the filing of the registration statement with respect to such registration)
to the extent necessary to reduce the number of securities to be included in the
registration to the level recommended by the underwriter(s). Nothing herein
shall be construed to obligate the Company to undertake or effect the
registration of additional shares of its Common Stock at any time.
5. Other Matters.
5.1 Conditional Releases.
(a) Xxxxxxx does hereby, for himself and his successors and assigns,
release, acquit and forever discharge the Company and its insurers,
employees, successors, assigns, agents, directors and officers
(hereinafter collectively referred to as the "Releasees"), of and from
any and all claims, demands, losses, damages, expenses, causes of action
and rights of action whatsoever, known and unknown, anticipated and
unanticipated, which Xxxxxxx has or may have and/or to which Xxxxxxx may
be entitled, for, upon, or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the date of the closing of
the First Option.
(b) The Company does hereby release, acquit and forever discharge
Xxxxxxx and and his heirs, successors and assigns, of and from any and
all claims, demands, losses, damages, expenses, causes of action and
rights of action whatsoever, known and unknown, anticipated and
unanticipated, which the Company has or may have and/or to which the
Company may be entitled, for, upon, or by reason of any matter, cause or
thing whatsoever from the beginning of the world to the date of the
closing of the First Option.
(c) Notwithstanding the foregoing, in the event the First Option is not
exercised, the mutual releases set forth in this section 5.1 shall be
null and void and of no effect.
5.2 Delivery of Company Property. Within 30 business days following the
date of this Agreement, Xxxxxxx agrees to deliver to Company an index or catalog
of all
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Company documents and property in his possession; upon request, Xxxxxxx agrees
to deliver to the Company all or specified portions of such documents and
property, provided, that Xxxxxxx shall be entitled to retain copies thereof
(which copies shall be at the Company's expense). Xxxxxxx further agrees to use
his best efforts to obtain and deliver to the Company, within 60 days following
the date hereof, all Company property in the possession of Therapeutic Peptides,
Inc. or its officers and employees.
5.3 Development of Procedures. Within 60 days following the date of this
Agreement, Xxxxxxx agrees to develop for the Company comprehensive written
systems and procedures relating to all functions and responsibilities that he
has performed for or on behalf of the Company since October of 1999 or is
currently performing for or on behalf of the Company, and to train the
individual(s) assuming such functions and responsibilities.
5.4 Board Seat. Pursuant to the terms of that certain Agreement to
Restructure Debt dated September 30, 1999, between the Company and Xxxxxxx, so
long as any of the Notes are outstanding, Xxxxxxx is entitled to nominate one
member of the Board of Directors of the Company. Xxxxxxx hereby waives any and
all rights he has to nominate a member of the Board of Directors of the Company
and agrees that neither he nor his nominee shall hereafter be entitled to be
elected to the Board of Directors of the Company; provided, however, that in the
event the First Option is not exercised, the waiver of rights provided in this
paragraph shall be null and void and Xxxxxxx shall be restored with all such
rights relating to the nomination of a member of the Board of Directors, to the
extent set forth in the Agreement to Restructure Debt.
6. Representations and Warranties. Xxxxxxx represents and warrants that (i) he
is, and at closing of the applicable Options will be, the sole record and
beneficial owner of the Stock, free and clear of all liens, claims, encumbrances
and options to purchase; (ii) upon delivery of the purchase price to Xxxxxxx,
the buyer(s) of Stock will have good and marketable title to the Stock, free and
clear of all liens, claims, encumbrances and options to purchase; (iii) he is
the holder of the Notes, he has not pledged or granted a security interest in
the Notes, and no other person has any rights or interests in and to any of the
Notes.
7. Default. No party hereto shall be deemed to be in default of its obligations
under this Agreement unless and until the aggrieved party has provided written
notice of a breach or alleged breach to the defaulting party, and the defaulting
party has failed to cure the breach within 30 days of the receipt of the notice
of the breach. Upon learning of a breach of this Agreement, the aggrieved party
shall, by certified mail, return receipt requested, notify the defaulting party
that it is in breach of its Agreement, and in said
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notice shall provide sufficient detail so that defaulting party is aware of the
nature of the default. In the event the defaulting party fails to cure such
default within said thirty day period, the aggrieved party shall be entitled to
any equitable or monetary remedies otherwise provided by the law, including,
without limitation, recovery for reasonable attorney's fees and costs incurred
to enforce his or its rights hereunder.
8. Miscellaneous Provisions.
8.1 Assignment This Agreement shall be binding upon the legal and
personal representatives, heirs, successors and assigns of the parties.
8.2 Severability Should any provision of this Agreement be unenforceable
in the law, the remainder of the Agreement shall not be affected thereby.
8.3 Counterparts This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which taken
together shall constitute one and the same instrument.
8.4 Descriptive Headings: Interpretation The headings used in this
Agreement are for convenience only and do not constitute matters to be construed
in interpreting this Agreement. Except where the context indicates otherwise,
words in the singular shall include the plural, and words in the masculine
gender shall include the neuter and vice versa.
8.5 Waivers No waiver of any provision of this Agreement shall be valid
unless the same is in writing and signed by the party against which it is sought
to be enforced. No waiver of any provision of this Agreement at any time shall
be deemed a waiver of any other provision of this Agreement.
8.6 Modification of Agreement No modification of this Agreement shall be
binding unless in writing and signed by the party against whom or which it is
sought to be enforced.
8.7 Entire Agreement This Agreement, including the exhibits attached
hereto, is the entire agreement among the parties hereto relating to the subject
matter hereof. It supersedes all prior agreements pertaining to the subject
matter hereof and may not be amended except in accordance with a writing
executed by or on behalf of all the parties.
8.8 Governing Law This Agreement shall be governed and construed in
accordance with the laws of the State of Louisiana.
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8.9 Attorney's Fees If any action or legal proceeding is brought for the
enforcement of this Agreement, or because of an alleged breach of this
Agreement, the successful prevailing party shall be entitled to recover its
reasonable attorney's fees, court costs, and reasonable litigation expenses
incurred in connection with such action or proceeding in addition to any other
relief which it is entitled, from the losing party.
8.10 Notices All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been duly given if (i) delivered personally
to the recipient, (ii) sent to the recipient by reputable express courier
service (charges prepaid) or mailed to the recipient by certified or registered
mail, return receipt and postage prepaid, or (iii) transmitted by telecopy to
the recipient with a confirmation copy to follow the next day to be delivered by
overnight carrier. Such notices, demands and other communication shall be sent
to the addresses indicated below:
a) To HELIX
Helix BioMedix, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx Xxxxxx, President
FAX No.: (000) 000-0000
b) To XXXXXXX
Xxxxx X. Xxxxxxx
0000 Xxxx Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
FAX No.: (000) 000-0000
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
HELIX BIOMEDIX, INC.
By:
---------------------------------
R. Xxxxxxx Xxxxxx, President
and Chief Executive Officer
-----------------------------------
Xxxxx X. Xxxxxxx
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