EXHIBIT 10.21
JOINT-MARKETING AGREEMENT
This Joint Marketing Agreement ("AGREEMENT") is entered into and effective
as of November 2, 2004 ("EFFECTIVE DATE"), by and between Helix BioMedix, Inc. a
Delaware corporation ("HXBM"), and Body Blue Inc., a Canadian corporation ("BODY
BLUE"). HXBM and Body Blue each may be referred to in this Agreement
individually as a "PARTY" or collectively as the "PARTIES".
RECITALS
WHEREAS, HXBM has a proprietary library of peptide sequences and desires
to engage Body Blue to assist in the marketing of those peptides for use in
certain products to be sold in certain geographical territories; and
WHEREAS, Body Blue is in the business of formulating and manufacturing
peptide-based products and desires to market HXBM's peptides in exchange for
HXBM's promotion of Body Blue's formulation and manufacturing services, upon the
terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, do agree as follows:
1 - PROSPECTS, PRODUCTS AND TERRITORIES-
1.1 Prospects. Body Blue shall be the exclusive marketing representative
for HXBM with respect to the companies for the product candidates within the
territories set for on Exhibit A attached hereto and incorporated hereby
("CO-MARKETED PRODUCTS"). The Parties intend to amend Exhibit A from time to
time as Body Blue identifies additional prospects, products and territories that
are acceptable to HXBM in its sole discretion.
1.2 Body Blue's Responsibilities. Body Blue agrees to use its best
commercial efforts to promote and maximize the sales of Co-marketed Products at
its sole cost and expense. Body Blue shall not describe or represent HXBM, any
HXBM peptide or intellectual property except as expressly stated in HXBM's
applicable written materials that are provided to Body Blue by HXBM.
1.2 Excluded Prospects. Body Blue shall have no rights to market HXBM
peptides to the companies for the product candidates within the territories set
forth on Exhibit B attached hereto and incorporated hereby. The Parties intend
to amend Exhibit B from time to time as HXBM identifies additional prospects to
whom it wishes to market directly or with other parties.
1
2 - FORMULATION AND MANUFACTURING PROMOTION-
2.1 Preferred Provider. HXBM shall identify Body Blue as its preferred
provider of peptide formulation and manufacturing services to companies that are
interested in licensing one or more HXBM peptides for use in cosmetic products.
2.2 HXBM's Responsibilities. HXBM shall not describe or represent Body
Blue nor any peptide formulation or manufacturing process used by Body Blue
except as expressly stated in Body Blue's applicable written materials that are
provided to HXBM by Body Blue.
3 - THIRD PARTY AGREEMENTS-
3.1 Contractual Arrangements. The Parties intend to maximize their
respective profits through the co-promotion activities contemplated in this
Agreement and acknowledge that contractual arrangements that arise from such
activities, if any, may be structured in a variety of ways. For example, a third
party may want to license a peptide sequence from HXBM and directly contract
with Body Blue for manufacturing. Accordingly, agreements, if any, between the
Parties relating to the commercialization of a Co-marketed Product by a third
party would be negotiated on a case-by-case basis. Although the Parties
anticipate that any profits from any agreements among each of the Parties and a
third party would be equally allocated between the Parties, nothing in this
Agreement shall result in HXBM obtaining an economic return related to a third
party's commercialization of an HXBM peptide sequence that is less than HXBM
would receive through a commercially standard licensing arrangement with such
third party if this Agreement did not exist.
4 - CONFIDENTIAL INFORMATION
4.1 Confidential Information. Each Party ("RECEIVING PARTY") shall treat
the terms and conditions of this Agreement and all of the Confidential
Information that it receives from the other Party ("DISCLOSING PARTY") as
secret, confidential, and proprietary of the Disclosing Party and shall not
disclose or use such Confidential Information of the Disclosing Party without
the prior written consent of the Disclosing Party for any purpose except as
expressly permitted under this Agreement. The Receiving Party shall develop and
implement such procedures as may be required to prevent the intentional or
negligent disclosure to third parties of such Confidential Information of the
Disclosing Party, including, but not limited to, requiring each of its employees
having access to Confidential Information of the Disclosing Party to enter into
a proprietary information agreement consistent with, and no less protective of
the Disclosing Party's rights in the Confidential Information than, the terms
set forth in this Article 4 and in this Agreement.
4.2 Exclusions. Notwithstanding the foregoing, nothing in this Agreement
shall prevent the disclosure or use by the Receiving Party of the Disclosing
Party's Confidential Information that:
(a) Prior to the transmittal thereof to the Receiving Party was of
general public knowledge;
(b) Becomes, subsequent to the time of transmittal to the Receiving
Party, a matter of general public knowledge otherwise than as a consequence of a
breach by the Receiving Party of any obligation under this Agreement;
Is made public by the Disclosing Party;
(c) Was in the possession of the Receiving Party in documentary form
prior to the time of disclosure thereof to the Receiving Party by the Disclosing
Party, and is held by the Receiving Party free of any obligation of confidence
to the Disclosing Party or any third party; or
(d) Is received in good faith from a third party having the right to
disclose it, who did not obtain such Confidential Information from the
Disclosing Party and who imposes no obligation of secrecy on the Receiving Party
with respect to such Confidential Information.
The Parties intend this Article 4 to survive the termination of this Agreement
for a period of ten (10) years and to supercede any prior agreements between
them with respect to the treatment of confidential information.
5 - REPRESENTATIONS & WARRANTIES
5.1 Representations and Warranties of HXBM. HXBM represents and warrants
to Body Blue that HXBM: (i) is duly organized and in good standing in the state
of Delaware, (ii) has taken all corporate and other action necessary to enter
into this Agreement, and, (iii) when executed by a duly authorized
representation of HXBM, this Agreement shall be binding upon HXBM.
5.2 Representations and Warranties of Body Blue. Body Blue represents and
warrants to HXBM that Body Blue: (i) is duly organized and in good standing in
Canada, (ii) has taken all corporate and other action necessary to enter into
this Agreement, and (iii) when executed by a duly authorized representative of
Body Blue, this Agreement shall be binding upon Body Blue.
5.3 Trading Restrictions. Body Blue acknowledges that it and its personnel
may in connection with this Agreement becomes aware of material nonpublic
information regarding HXBM and that Federal and state securities laws prohibit
Body Blue and such personnel and their families from purchasing or selling any
securities on the basis of such material nonpublic information and from
assisting any others to do so. Body Blue agrees that it shall not (and that it
shall institute and monitor an on-going program to assure that its personnel and
their family members do not) violate any applicable law or regulation bearing on
trading in securities of HXBM.
6 - DISCLAIMER OF WARRANTIES / LIMITATION OF LIABILITY
6.1 Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN
THIS AGREEMENT, HXBM, ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AFFILIATES MAKE NO
REPRESENTATIONS AND EXTEND NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
WITH RESPECT TO ITS PEPTIDE SEQUENCES OR THE INTELLECTUAL PROPERTY ASSOCIATED
THEREWITH INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, VALIDITY OF PATENTS, ISSUED OR PENDING,
NON-INFRINGEMENT OR THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT
DISCOVERABLE.
6.2 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY, OR THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AFFILIATES BE LIABLE FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ECONOMIC DAMAGE OR
INJURY TO PROPERTY AND LOST PROFITS, REGARDLESS OF WHETHER SUCH PARTY SHALL BE
ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE
POSSIBILITY OF THE FOREGOING.
7 - INDEMNIFICATION
Body Blue shall at all times during the term of this Agreement and
thereafter, indemnify defend and hold HXBM and its directors, officers,
employees and affiliates (collectively, "Indemnitees") harmless against any and
all claims, proceedings, demands and liabilities of any kind whatsoever,
including legal expenses and reasonable attorneys' fees, arising out of the
death of or injury to any person or persons or out of any damage to property,
resulting from the production, manufacture, sale, use, lease, consumption,
advertisement or promotion of the Co-marketed Product(s) by Body Blue, provided
that the Indemnitee notifies Body Blue promptly of any such claim or threatened
claim, and fully cooperates with all reasonable requests of Body Blue with
respect thereto; and provided that Body Blue shall have the sole right to
control the defense, settlement or compromise of any such action. Body Blue's
indemnification under this Section 7 shall not apply to any liability, damage,
loss or expense to the extent that it is directly attributable to the gross
negligence or intentional misconduct of any of the Indemnitees.
8 - NON-USE OF NAMES
Neither Party shall use the names or trademarks of the other Party, nor
any adaptation thereof in any advertising, promotional or sales literature
without prior written consent obtained from such other Party. Notwithstanding
the foregoing, HXBM may refer to the existence of this Agreement in filings
under the securities laws and in securities offering materials prepared in
accordance with applicable securities laws.
9 - TERMINATION
9.1 Term. The term of the Agreement shall begin on the Effective Date and
shall continue for a two-year period. Either Party may extend the term of this
Agreement for one (1) additional year by providing the other Party with written
notice of such election at least ninety (90) but not more than one hundred
twenty (120) days prior to the expiration of the two-year period referenced in
the preceding sentence.
9.2 Termination for Breach. Upon any material breach of any provision of
this Agreement by a party (the "BREACHING PARTY"), the other party (the
"NON-BREACHING PARTY") shall have a right to give written notice thereof
("NOTICE OF DEFAULT") to the Breaching Party. If the Breaching Party does not
cure such material breach within thirty (30) days after the date of the Notice
of Default, the Non-Breaching Party shall have the right to terminate this
Agreement by a second written notice ("NOTICE OF TERMINATION") to the Breaching
Party. If the Non-Breaching Party sends a Notice of Termination to the Breaching
Party, this Agreement will automatically terminate on the date of such Notice of
Termination.
9.3 Termination for Bankruptcy. To the extent permitted by applicable law,
each Party shall have the right to immediately terminate this Agreement by
giving written notice to the other Party, in the event the other Party: (i)
provides notice of its intent to file (or does actually file without providing
said notice) a petition in bankruptcy; (ii) attempts to make an assignment
hereof for the benefit of creditors or otherwise; (iii) discontinues or
dissolves its business; or (iv) if a receiver is appointed for it.
10 - NOTICES AND OTHER COMMUNICATIONS
Any notice or other communication pursuant to this Agreement shall be
sufficiently made or given if sent to such party by certified first class mail,
return receipt requested, postage prepaid, by reputable overnight courier, or by
facsimile (with confirmation emission) addressed to it at its address below or
as it shall designate by written notice given to the other party:
In the case of HXBM:
Helix BioMedix, Inc.
00000 - 00xx Xxxxxx XX
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: President
In the case of Body Blue:
Body Blue Inc.
Attn: Xxxxx Xxxxxx, President
0000 Xxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx X0X 0X* Xxxxxx
Fax: (000) 000-0000
All notices sent by first class mail shall be deemed to have been given
four (4) business days after deposit, all notices sent by overnight courier or
facsimile shall be deemed to have been given one (1) business day after deposit
or transmission, as applicable.
11 - DISPUTES; DISPUTE RESOLUTION
11.1 Disputes. Any dispute that may arise relating to the terms of this
Agreement or the activities of the Parties hereunder shall be brought to the
attention of the President of each Party, who shall use their good faith efforts
to mutually agree upon the proper course of action to resolve the dispute. If
any dispute is not resolved by the Presidents of the Parties within thirty (30)
consecutive days after such dispute is referred to them, then either Party shall
have the right to refer such dispute to an Expert for expedited arbitration as
set forth in subparagraphs (a) through (c) below.
(a) With respect to disputes that are not resolved by the Presidents
of the Parties, upon written request by either Party to the other Party, the
Parties shall promptly negotiate in good faith to appoint a mutually acceptable
disinterested, conflict-free individual not affiliated with either Party, with
scientific, technical and regulatory experience with respect to the development
of peptides-based products necessary to resolve such dispute (an "Expert"). If
the Parties are not able to agree within five (5) days after the receipt by a
Party of the written request in the immediately preceding sentence, the CPR
Institute for Dispute Resolution shall be responsible for selecting an Expert
within seven (7) days of being approached by a Party. The fees and costs of the
Expert and the CPR Institute for Dispute Resolution shall be shared equally by
the Parties.
(b) Within fifteen (15) days after the designation of the Expert,
the Parties shall each simultaneously submit to the Expert and one another a
written statement of their respective positions on such disagreement. Each Party
shall have five (5) days from receipt of the other Party's submission to submit
a written response thereto, which shall include any scientific and technical
information in support thereof. The Expert shall have the right to meet with the
Parties, either alone or together, as necessary to make a determination.
(c) No later than thirty (30) days after the designation of the
Expert, the Expert shall make a determination by selecting the resolution
proposed by one of the Parties that as a whole is the most fair and reasonable
to the Parties in light of the totality of the circumstances and shall provide
the Parties with a written statement setting forth the basis of the
determination in connection therewith. The decision of the Expert shall be final
and conclusive, absent manifest error.
12 - PRESS RELEASES
12.1. Press Releases. Press releases or other similar public communication
by either Party relating to this Agreement, shall be approved in advance by the
other Party, which approval shall not be unreasonably withheld or delayed,
except for those communications required by applicable law (which shall be
provided to the other Party as soon as practicable after the receipt of
communication thereof), disclosures of information for which consent has
previously been obtained, and information of a similar nature to that which has
been previously
disclosed publicly with respect to this Agreement, each of which shall not
require advance approval.
13 - MISCELLANEOUS PROVISIONS
13.1 Force Majeure. Neither Party shall be held liable or responsible to
the other Party or be deemed to have defaulted under or breached this Agreement
for failure to delay in fulfilling or performing any term of this Agreement when
such failure of delay is caused by or results from events beyond the reasonable
control of the non-performing Party, including fires, floods, embargoes,
shortages, epidemics, quarantines, war, acts of terrorism, acts of war (whether
war be declared or not), insurrections, riots, civil commotion, strikes,
lockouts or other labor disturbances, acts of God or acts, omissions or delays
in acting by any governmental authority. The non-performing Party shall notify
the other Party of such force majeure within ten (10) days after such occurrence
by giving written notice to the other Party stating the nature of the event, its
anticipated duration, and any action being taken to avoid or minimize its
effect. The suspension of performance shall be of no greater scope and no longer
duration than is necessary and the non-performing Party shall use commercially
reasonable efforts to remedy its inability to perform; provided, however, that
in the event the suspension of performance continues for one-hundred and eighty
(180) days after the date of the occurrences, the Parties shall meet to discuss
in good faith how to proceed in order to accomplish the commercialization of the
Co-marketed Products.
13.2 Assignment. Without the prior written consent of the other Party,
neither Party shall sell, transfer, assign, delegate, pledge or otherwise
dispose of, whether voluntarily, involuntarily, by operation of law or
otherwise, this Agreement or any of its rights or duties hereunder; provided,
however, that either Party may assign or transfer this Agreement or any of its
rights or obligations hereunder without the consent of the other Party to any
third party with which it may merge or consolidate, or to which it may transfer
all or substantially all of its assets if in any event (i) the assigning Party
(provided that it is not the surviving entity) remains jointly and severally
liable with the third party assignee and (ii) the third party assignee or
surviving entity assumes in writing all of the assigning Party's obligations
under this Agreement. Any purported assignment or transfer in violation of this
Section shall be void ab initio and of no force or effect.
13.3 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of either Party under this Agreement will not be
materially and adversely affected thereby, (a) such provision shall be fully
severable, (b) this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(c) the remaining provisions of this Agreement shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provisions or by its severance herefrom, and (d) in lieu of such illegal,
invalid or unenforceable provision there shall be added automatically as a part
of this Agreement a legal, valid and enforceable provisions as similar in terms
to such illegal, invalid, or unenforceable provision as may be possible and
reasonably acceptable to the Parties herein. To the fullest extent permitted by
applicable law, each Party hereby waives any provision of law that would render
any provision prohibited or unenforceable in any respect.
13.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington, applicable to contracts
made and wholly performed within such jurisdiction by residents of such
jurisdiction. Subject to Section 11.1, the Parties hereby irrevocably and
unconditionally consent to the exclusive jurisdiction of the courts of the State
of Washington and the United States District court of the Western District of
Washington for any action, suit or proceeding (other than appeals therefrom)
arising out of or relating to this Agreement, and agree not to commence any
actions, suit or proceeding (other than appeals therefrom) related thereto
except in such courts. The Parties further hereby irrevocably and
unconditionally waive any objection to the laying of venue of any action, suit
or proceeding (other than appeals therefrom) arising out of or relating to this
Agreement in the courts of the State of Washington or the United States District
Court for the Western District of Washington, and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum. Each Party hereto further agrees that service of any
process, summons notice or document by U.S. registered mail to its address set
forth below shall be effective service of process for any action, suit or
proceeding brought against it under this Agreement in any such court.
13.5 Entire Agreement. This Agreement sets forth and constitutes the
entire agreement and understanding between the Parties with respect to the
subject matter hereof and all prior agreements, understating, promises and
representations, whether written or oral, with respect thereto are superceded
hereby. Each Party confirms that it is not relying on any representations or
warranties of the other Party except as specifically set forth herein. No
amendment, modification, release or discharge shall be binding upon the Parties
unless in writing and duly executed by authorized representatives of both
Parties. .
13.6 No Waiver. Any term or condition of this Agreement may be waived at
any time by the Party that is entitled to the benefit hereof, but no such waiver
shall be effective unless set forth in a written instrument duly executed by or
on behalf of the Party waiving such term or condition. The waiver by either
Party hereto of any right hereunder or of the failure to perform or of a breach
by the other Party shall not be deemed a waiver of any other right hereunder or
of any other breach or failure by said other Party whether of a similar nature
or otherwise.
13.7 Attorneys Fees. In the event that any disputes among the parties to
this Agreement should result in litigation, the prevailing party in such
disputes shall be entitled to recover from the losing party all fees, costs and
expenses of enforcing any right of such prevailing party under or with respect
to this Agreement, including without limitation, such reasonable fees and
expenses of attorneys and accountants, which shall include without limitation,
all fees, costs and expenses of appeals.
13.8 No Benefit to Third Parties. The representations, warranties,
covenants and agreement set forth in this Agreement are for the sole benefit of
the Parties hereto and their successors and permitted assigns, and they shall
not be construed as conferring any rights on any other parties.
13.9 Further Assurances. Each Party shall duly execute and deliver, or
cause to be duly executed and delivered, such further instruments and do and
cause to be done such further
acts and things, including the filing of such assignments, agreements, documents
and instruments, as may be necessary or as the other Party may reasonably
request in connection with this Agreement or to carry out more effectively the
provisions and purposes, or to better assure and confirm unto such other Party
its rights and remedies under this Agreement.
13.10 References. Unless otherwise specified, (a) references in this
Agreement to any Article, Section, Schedule or Exhibit shall mean references to
such Article, Section, Schedule or Exhibit of this Agreement, (b) references in
any section to any clause are references to such clause of such section, and (c)
references to any agreement, instrument or other document in this Agreement
refer to such agreement, instrument or other document as originally executed or,
if subsequently varied, replaced or supplemented from time to time, as so
varied, replaced or supplemented and in effect at the relevant time of reference
thereto.
13.11 Construction. Except where the context otherwise requires, wherever
used, the singular shall include the plural, the plural the singular, the use of
any gender shall be applicable to all genders and the word "or" is used in the
inclusive sense (and/or). The captions of this Agreement are for convenience of
reference only and in no way define, describe, extend or limit the scope or
intent of this Agreement or the intent of any provision contained in this
Agreement. The term "including" as used here mean including, without limiting
the generality of any description preceding such term. The language of this
Agreement shall be deemed to be the language mutually chosen by the Parties and
no rule of strict construction shall be applied against either Party hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date set forth below.
HELIX BIOMEDIX, INC. BODY BLUE INC.
("HXBM") ("Body Blue")
By: ___________________________ By: _____________________________
Name: R. Xxxxxxx Xxxxxx Name: Xxxxx Xxxxxx
Title: President Title: President
EXHIBIT A
This Exhibit A is an exhibit to that Co-Marketing Agreement ("Agreement")
between Helix BioMedix, Inc. ("HXBM) and Body Blue Inc. ("Body Blue") and sets
forth the names of the companies that HXBM has authorized Body Blue to market
the specified peptides for the specified products pursuant to the terms of the
Agreement. Body Blue acknowledges that HXBM, directly or indirectly, will be
marketing the same peptides for the same products to others during the term of
the Agreement which may result in such peptides becoming unavailable to the
companies approached by Body Blue.*
COMPANY PEPTIDE PRODUCT AREA
------- ------- --------------------------------
[*] HB 168 Anti-wrinkle cosmetic for humans
[*] HB 64 Anti-acne cosmetic for humans
[*] HB 168 Anti-wrinkle cosmetic for humans
[*] HB 64 Anti-odor for humans
[*] HB 64 Anti-odor for humans
[*] HB 168 Anti-wrinkle cosmetic for humans
[*] HB 168 Anti-wrinkle cosmetic for humans
[*] HB 64 Anti-acne cosmetic for humans
[*] HB 168 Anti-wrinkle cosmetic for humans
[*] HB 168 Anti-wrinkle cosmetic for humans
[*] HB 168 Anti-wrinkle cosmetic for humans
[*] HB 64 Anti-odor for humans
[*] HB 64 Anti-acne cosmetic for humans
*
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[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS AGREEMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE U.S. SECURITIES AND
EXCHANGE COMMISSION ("SEC") PURSUANT TO SEC RULE 24B-2 UNDER THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED.
EXHIBIT B
This Exhibit B is an exhibit to that Co-Marketing Agreement ("Agreement")
between Helix BioMedix, Inc. ("HXBM) and Body Blue Inc. ("Body Blue") and sets
forth the names of the companies that HXBM has excluded from the Agreement. Body
Blue acknowledges that for any company to whom it wishes to market* Helix
peptides that does not appear on either Exhibit A or Exhibit B attached to the
Agreement, it will request, in writing to HXBM, that such company, peptide and
product area be added to Exhibit A, and HXBM shall promptly respond to such
request in its sole discretion.
[*]
[*]
[*]
[*]
[*]
[*]
[*]
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[*] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS AGREEMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC PURSUANT TO SEC
RULE 24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
