**Exhibit 10.1**

 

**MARKETINGAND DISTRIBUTION AGREEMENT**

 

**THIS MARKETINGAGREEMENT** (“Agreement”) made as of this 9th day ofJanuary, 2004 between Vase Active Pharmaceuticals, Inc. (“VAPH”) with a placeof business at 99 Rosewood Drive, Danvers, Massachusetts, 01923, andOrthoDistribution, Inc. (“ODI”) with a place of business at 116 Bridges Lane,North Andover, MA 0l845

 

**WITNESSETH:**

 

**WHEREAS**,VAPH is in the business of manufacturing and marketing consumer products; and

 

**WHEREAS**,ODI has established a sales and distribution net work into the orthopedicmarketplace; and

 

**WHEREAS**VAPH has developed an innovative Over-the-Counter pain reliever to treatarthritis and muscle and joint pain currently marketed under the names “Osteon”and “Athlete’s Relief” (the “Arthritis Product”); and

 

**WHEREAS**,VAPH wishes to engage ODI to jointly market and sell with VAPH the Productunder exclusive label specifically designed for the professional medic.

 

**NOW, THEREFORE**,in consideration of the mutual promises contained herein and other good andvaluable consideration, the receipt and sufficiency of which is herebyacknowledged, the parties agree as follows:

 

# **1.**             Marketingand Promotion

 

1.1           VAPHwill manufacture a product that is specifically labeled for the professionalorthopedic market and specifically identified to this strategicrelationship.  VAPI-I shall supply toODI the product that it needs to market into its distribution channel.  ODI shall have the right, at its option, toadvertise, promote, market, sell and otherwise distribute the Arthritis Productthrough whatever means arid media, now existing or hereafter created, whichODI, in its sole judgment, may choose. The entire cost of the marketing effort, including promotional programs,shall be borne by ODI.

 

1.2           ODIshall have the right to duplicate, distribute and prepare derivative works ofall copyrighted elements of the Arthritis Product in all media, now known orhereafter created.

 

1.3           ODIshall have the right to specific and determine the form and content of allpackaging, invoices, advertising, and all associated prom and merchandisingmaterials for sale and marketing of the Product.

 

1.4           Allright, title and interest in and to the entire editorial visual, audio andgraphic content of all advertisements and promotional materials developed byand for the Arthritis

 

----

 

Product by ODI shall be theproperty of both ODI and VAPH.  However,all product packaging must contain the following:

 

“This product is formulated ‘with VAPWS advanced, patented transdermaldelivery technology called PENtoCORE.”

 

In addition, the product must have the VAPH technology symbol on thefront, lower’ panel of the label and box.

 

1.5           ShouldODI elect to conduct any clinical studies using the Arthritis Product, orcontract with others to perform any clinical studies using the ArthritisProduct on its behalf, such clinical studies shall be the property of both VAPHand ODI.  VAPH shall have the right onfourteen (14) business days prior notice, to review these studies.  VAPH agrees that it will not use or discloseto any third party such clinical studies without ODI’s prior written consent,which may not be unreasonably withheld.

 

# **2.**             Product

 

2.1           VAPHrepresents and warrants that:

 

(a)                                  The Arthritis Productshall contain only wholesome, first quality ingredients, which are not in adamaged or degraded condition and which comply in all respects with and/or havereceived all required approvals required by applicable governmentalregulations, laws and rules and/or quality assurance standards regarding safety,efficacy, packaging/labeling and/or content including, without limitation, thePure Food and Drug Act;

 

(b)                                 The Arthritis Productare effective for their intended purpose and VAPH will promptly replace orrefund the cost of any identified defective or damaged Arthritis Product (inthe case of damaged Arthritis Product, so long as VAPH has been notified ofsuch damage within ten (10) business days of ODI’s receipt of such damagedArthritis Product and iii the case of defective Arthritis Product within ten(10) days of ODI’s actual knowledge that such Arthritis Product are defective),or Arthritis Product not conforming with applicable laws, regulations, orrules.

 

(c)                                  The manufacture andsale of the Arthritis Product does not infringe upon any patent.

 

(d)                                 All informationprovided to ODI by VAPH with respect to the Arthritis Product is accurate, trueand correct and all claims made by VAPH, regarding the Arthritis Product can besubstantiated.  ODI shall submit for VAPHreview and approval, which may not be unreasonably withheld, and VAPH willreview and approve (as appropriate) the accuracy of all promotional, marketingand advertising materials submitted by ODI to VAPH.  VAPH shall have no responsibility for determining whether thecontents of such materials conform to legal requirements with respect thereto,it being understood that such responsibility shall remain with ODI.

 

2

----

 

# **3.**             Pricing andPayment Terms

 

3.1           VAPHwill supply the product to ODI to distribute. ODI and VAPH will split gross revenue associated with this product with50% going to VAPH and 50% going to ODI. VAPH will outsource product manufacturing to an independent third partymanufacturer that will produce the product to VAPH’S specifications andprotocol.  VAPH will be responsible, inits sole discretion, for choosing the contract manufacturer and all tradesecrets, production protocol that is not public domain will remain tradesecrets to VAPH.  ODI will provide amonthly report to VAPH on unit, sales and provide payments accordingly.

 

3.2           VAPHand ODI will agree jointly as to the price point by which the product will besold into the market.

 

3.3           AccountingRecords: ODI shall keep a complete and accurate account of the product unit salesin sufficient detail to determine the revenue split. ODI shall provide VAPHwith complete data on the number of units sold.  ODI shall keep such information for one (1) year after revenuesplit payments.  VAPH shall have theright, once a year and during business hours upon reasonable notice, to send anindependent auditor to inspect and review the books and reports of ODI that arenecessary for the calculation of revenue split.  The independent auditors performing such inspection or auditshall be bound to CD to retain ODI’s information as confidential, even fromVAPH and shall only be allowed to disclose whether ODI calculations wereaccurate and, if not, the amount of discrepancy, which shall be adjustedbetween the parties within thirty (30) days from the independent auditorreport.  Such inspection and audit shallbe at VAPH’s expense.

 

# **4.**             Authority- Reliance

 

4.1           **By VAPH:**VAPH represents and warrants to ODI as follows:

 

(a)                                  VAPH has allrequisite power and authority to execute, deliver and perform this Agreement,to grant all rights granted to ODI hereunder, and has duly authorized, by allnecessary action, the execution and delivery hereof by the officer orindividual whose name is signed on its behalf below.

 

(b)                                 The execution anddelivery by VAPH of this Agreement and the performance by it of its obligationshereunder do not and will not conflict with or result in a breach of or adefault of any other agreements, instrument, order, law or regulationapplicable to VAPH, or by which it may be bound.

 

4.2           **By ODI**:represents and warrants to VAPH as follows:

 

(a)                                  ODI has all requisitepower and authority to execute, deliver and perform this Agreement, and hasduly authorized, by all necessary action, the execution and delivery hereof bythe officer or individual whose name is signed on its behalf below.

 

(b)                                 The execution anddelivery by ODI of this Agreement and the performance by it of its obligationshereunder do not and will not conflict with or result in a breach

 

3

----

 

or default of any other agreement, instrument, order, law or regulationapplicable to ODI or by which it may be bound.

 

# **5.**             Indemnification

 

5.1           **Bv VAPH.**  VAPH shall indemnify, defend and holdharmless ODI and its officers, directors, employees, agents, successors andassigns from and against any and all costs, damages, liabilities, and expenseswhatsoever, including, without limitation, damages, judgments, awards, costsand reasonable attorneys’ fees and disbursements which ODI may incur or becomeobligated to pay arising out of or resulting from (i) the activities of VAPHpursuant to this Agreement, (ii) the breach by VAPH of any of itsrepresentations, warranties, covenants, obligations or duties under thisAgreement.  However, VAPH shall not beliable to ODI for consequential damages, and, provided, further that VAPH shallnot be liable for damages occasioned by regulatory interference with themarketing by ODI of the Arthritis Product.

 

5.2           ByODI.  ODI shall indemnify, defendand hold harmless VAPH and its officers, directors, employees, agentssuccessors and assigns, from and against any and all costs, damages,liabilities, and expenses whatsoever, including, without limitation, damages,judgments, awards, costs and reasonable attorneys’ fees and disbursements whichVAPH may incur or become obligated to pay arising out of or resulting from (i)the activities of ODI pursuant to this Agreement, or (ii) the breach by ODI ofany of its representations, warranties, covenants, obligations, or duties underthis Agreement.  However, ODI shall notbe liable to VAPH for consequential damages.

 

# **6.**             Term— Termination

 

6.1           Theterm of this Agreement shall commence as of the date hereof continueindefinitely unless a breach of this contract occurs;

 

6.2           Inthe event of a breach of any representation, warranty. covenant, obligation orduty by a party, and said breach is not cured within thirty (30) days afterreceipt of written notice thereof, the other party may terminate thisAgreement. Such termination shall be without prejudice to any rights orremedies at law or in equity, which may he available to the non-breachingparty.

 

6.3           Uponthe termination of this Agreement, ODL shall retain indefinitely the rights toprocess those orders for Arthritis Product that we’re placed prior to theeffective date of termination and accept those orders from customers with whomODI was negotiating or whom ODI had solicited prior to the effective date oftermination, together with the right to solicit and ODI reorders from priorcustomers with respect to Arthritis Product in its inventory or which it hadordered as of the date of such termination. in each case, the parties shallcontinue to perform as though this Agreement were still in effect until refundsand replacements have been satisfactorily honored.  Termination of this Agreement shall not affect the rights of theparties with respect to the intellectual property rights provided herein andthe Indemnities as set forth in Section 5, as the term of such sections shallsurvive the termination alibis Agreement.

 

4

----

 

# **7.**             FurtherActions.

 

The parties agree to execute such additional documents and to performall such other and further acts as may be necessary or desirable to carry outthe purpose and intent of this Agreement.

 

# **8.**             Exclusivity

 

8.1           ODIand VAPH will own jointly the label associated with this product and shallsplit the gross proceeds of the revenue generated from the sale of this productas specified in paragraph 3 above.  Thislabel is exclusively owned by the parties to this Agreement.

 

8.2           Otherthan the right to market Arthritis Product, which contains VAPH’s patentedtechnology, nothing in this Agreement conveys any right to VAPH’s intellectualproperty to ODI.

 

# **9.**             Miscellaneous

 

9.1           Ifany provision of this Agreement is, or is declared to be, invalid orunenforceable, such invalidity or unenforceability shall not effect either thebalance of such provisions, to the extent it is not invalid or unenforceable,or the remaining provisions hereof.

 

9.2           Exceptfor the further writing arid agreements contemplated hereby, this Agreementcontains the entire understanding of the parties with respect to the subjectmatter hereof and supersedes all prior agreements and understandings betweenthem with respect to the subject matter hereof. No amendment of this Agreementshall be effective unless embodies in a written instrument executed by all fthe parties.

 

9.3           ThisAgreement shall be governed by and construed in accordance with the laws of theCommonwealth of Massachusetts.

 

9.4           Therights and obligations of the parties under this Agreement shall inure to thebenefit of arid be binding upon their respective successors and assigns,provided. however, that neither VAPH nor ODI may assign this Agreement or anyportion thereof, without the express written consent of the other which consentshall be unreasonably withheld.  Thisprovision does not pertain to assignments made to subsidiaries of the corporateparties to this Agreement.

 

9.5           Allheadings contained in this Agreement are for convenience and shall not affectthe interpretation or meaning of this Agreement.

 

9.6           Thefailure of any party hereto at any time to enforce any of the provisions ofthis Agreement shall not be deemed or construed to be a waiver of any suchprovision, nor in any way to effect the validity of this Agreement or anyprovisions hereof or the right of any party hereto to thereafter enforce eachand every provision of this Agreement. No waiver of any breach of any of theprovisions of this Agreement shall be effective unless set forth in a writteninstrument executed by the party against whom or which enforcement of such awaiver is sought. No waiver of any such breach shall be construed or deemed tobe a waiver of any other subsequent breach.

 

5

----

 

9.7           ThisAgreement does not constitute a partnership or joint venture between thepanics, nor does it constitute one party as an agent for the other. Other thanfor the product described hereinabove, ODI has no rights to VAPI intellectualproperly, patents or other formula and products. Each party shall beresponsible for its own employees and all tax reporting and payment associatedwith the operation of its business.

 

IN WITNESS THEREOF, the parties have executed this Agreement as of thedate first above mentioned.

 
|   | **ORTHODISTRIBUTION,  INC.**           |
|--------|----------------------------------------|
|   |                                   |   |
|   | By:                                    |   |   |
|   |                                   | Name: |
|   |                                   | Title: |
|   |                                   |   |
|   | **VASO ACTIVE  PHARMACEUTICALS, INC.** |
|   |                                   |   |
|   | By:                                    |   |   |
|   |                                   | Name: |
|   |                                   | Title: |

 

6

----