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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
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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;
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(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.
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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.
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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 with
