EXHIBIT 10.21(a)
FIRST AMENDMENT TO JOINT MARKETING AGREEMENT
THIS FIRST AMENDMENT TO JOINT MARKETING AGREEMENT (this "AMENDMENT") is
made as of February 13, 2006 by and between Helix BioMedix, Inc., a Delaware
corporation ("HXBM"), and Body Blue Inc., a Canadian corporation ("BODY BLUE"),
and amends that certain Joint Marketing Agreement between the parties dated
effective November 2, 2004 (the "AGREEMENT"). Capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the Agreement.
WHEREAS, the parties entered into the Agreement to provide for the
marketing of HXBM products to certain prospective customers; and
WHEREAS, the parties wish to memorialize their agreement to share
revenues from certain other transactions which were not specifically
contemplated either by the Agreement or by that certain Referral Fee Agreement
between the parties dated September 12, 2005 (the "REFERRAL FEE AGREEMENT");
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. Revenue Share. The parties hereby agree to the following revenue share
allocations for the following corresponding transactions; provided, however,
that notwithstanding anything contained in the Agreement or this Amendment to
the contrary, both parties shall retain complete discretion as to whether or not
to engage in any transaction with any third party:
Description of Transaction Amount
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1. Non-manufacturing agreement sourced by Body Blue to receive ***% of HXBM
Body Blue by which the licensing Net Revenue under any such agreement
customer either sells products through
retail channels or directly to
consumers (e.g., ***)
2. License Agreement sourced by Body Blue Body Blue to receive ***% of HXBM
with other formulators or manufacturers Net Revenue under any such agreement.
(e.g., companies that formulate, In addition, if a resulting premix
manufacture (including outsourcing containing an HXBM peptide is sold to
manufacturing), and/or sell proprietary Body Blue as a raw material for a
mixes or turnkey products incorporating manufacturing transaction, the premix
HXBM's peptides, such as ***) cost shall be included with raw material
costs in the calculation of the profit
split as in category 3 below.
3. Manufacturing agreements sourced by HXBM to receive ***% of any profits from
Body Blue involving HXBM peptides. sales of Body Blue products under any such
agreement without regard to any Body
Blue technology that is also included, provided
that HXBM would never receive less
profit than under its standard royalty-based
licensing agreement (i.e., a target of ***%)
4. Agreement with customer sourced by
HXBM:
- HXBM refers a customer to HXBM to receive same percentage specified in
Body Blue for the sale of category 1 above for referral fee (based on
NatureBak total sales or royalties received by Body Blue
under any such agreement) and for any markup on
the ingredients
- HXBM refers a customer to HXBM to receive ***% of profit; Body Blue
Body Blue for a peptide- to receive ***% of profit, provided that HXBM
based manufacturing would never receive less profit than under its
agreement standard royalty-based licensing agreement
(i.e., a target of ***%)
- Third party refers a customer for Any commissions due to third party to be borne
HXBM peptides to Body Blue. by Body Blue
*** CONFIDENTIAL TREATMENT REQUIRED
For purposes hereof, "HXBM NET REVENUE" shall mean revenue received and
recognized by HXBM in connection with the applicable transaction or agreement,
including any license-related revenue associated with upfront, milestone or
standstill payments, net of any and all costs incurred by HXBM in manufacturing
or obtaining the product. The parties agree that HXBM Net Revenue sharing shall
only apply to non-manufacturing/license transactions (i.e., if the same kilogram
of peptide is the subject of transactions under both category 2 and category 3
above, HXBM Net Revenue shall refer only to the category 2 portion of HXBM's
revenue, and the category 3 profit split would be calculated as if the premix
were any other raw material acquired from a third party).
Any amounts payable to Body Blue hereunder shall be made by HXBM within thirty
(30) days of receipt by HXBM of the applicable Net Revenue in U.S. dollars by
wire transfer in immediately available funds to an account designated by Body
Blue. Any amounts payable to Body Blue hereunder which are not paid on the date
such payments are due shall bear interest at a rate equal to the prime rate as
published in The Wall Street Journal, Western Edition, on the first day of each
calendar month in which such payments are overdue, calculated on the number of
days such payment is delinquent, compounded monthly.
2. Miscellaneous. The parties further agree as follows
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(a) Once the parties have agreed with a customer to include a shared
profit in the price of a peptide, the parties agree to enforce a
minimum peptide concentration usage level with respect to such
customer.
(b) The parties agree to establish different minimum concentrations
and pricing for each market into which peptides are sold.
(c) The parties agree to enforce a field of use for each product.
(d) The parties agree to enforce unit size restrictions (e.g., no 10
gallon units) for unit royalty agreements.
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*** CONFIDENTIAL TREATMENT REQUIRED
3. Effect of Amendment. Except as specifically amended by this Amendment, all
provisions of the Agreement shall remain unchanged and in full force and effect.
Nothing contained in this Amendment shall be deemed to be an amendment of the
Referral Fee Agreement, which shall remain unchanged and in full force and
effect in its entirety. This Amendment is dated as of the date above first
written.
Helix BioMedix, Inc. Body Blue Inc.
____________________________________ ______________________________
By: ________________________________ By: __________________________
Its: _______________________________ Its: _________________________
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*** CONFIDENTIAL TREATMENT REQUIRED
