Sample Business Contracts

Marketing and Distributorship Agreement - DIAMED Medizintechnik GmbH and OccuLogix Inc.

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This Agreement made on October, 25, 2004             , by and between DIAMED
Medizintechnik GmbH, a corporation organized and existing under the laws of
Germany, with its principal place of business at Stadtwaldgortel 77, 50935 Koln,
Germany (hereafter referred to as "DIAMED") and OCCULOGIX INC., a corporation
organized and existing under the laws of the State of Delaware, the United
States of America, with its principal place of business at 5380 Solar Drive,
Suite 100, Mississauga, Ontario, Canada, L4W 5M8 (hereinafter referred to as


WHEREAS, DIAMED desires to sell and market the PRODUCT (hereinafter defined) and
grant to OCCULOGIX certain distributor rights with respect to the PRODUCT in the
TERRITORY (hereinafter defined); and

WHEREAS OCCULOGIX is desirous of distributing the PRODUCT in the TERRITORY.

WHEREAS OCCULOGIX intends to purchase the PRODUCT from the MANUFACTURER which is
appointed by DIAMED for the production of the PRODUCT.

NOW, THEREFORE, for and in consideration of the mutual covenants and premises
hereinafter set forth, and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereto agree as


As used in this Agreement, the following terms shall have the following meanings

A:    "PRODUCT" shall mean the products set forth in the attached Exhibit A

B.    "MANUFACTURER" shall mean the producer nominated in the attached Exhibit A

C.    "TERRITORY" shall mean United States of America, Canada and Mexico and the
      Caribbean Islands.

D.    "TREATMENT DISEASE" shall mean hemo-rheological disorders in

E.    "FDA" shall mean the Federal Food and Drug Administration in the U.S..

F:    "TRADEMARKS" shall mean those listed in attached Exhibit B hereto.




2.1   DIAMED hereby appoints OCCULOGIX as its exclusive distributor in the
      TERRITORY for the sale of PRODUCT solely to be used for the TREATMENT
      DISEASE, provided however, that OCCULOGIX obtains the FDA approval and
      other necessary approvals in the TERRITORY according to Article 4 of this
      Agreement. OCCULOGIX agrees to act as such exclusive distributor under the
      terms and conditions of this Agreement.

      In case that additional diseases should become available for treatment by
      the PRODUCT in the TERRITORY, OCCULOGIX shall have the right of first
      refusal under the provisions that OCCULOGIX obtains all necessary
      approvals as stipulated above.

2.2   This Agreement does not construe OCCULOGIX as the agent or legal
      representative of DIAMED for any purpose whatsoever. OCCULOGIX is not
      granted any right or authority to assume or to create any obligation or
      responsibility, expressed or implied, on behalf of or in the name of
      DIAMED or to bind DIAMED in any manner or thing whatsoever, or to accept
      any legal process to or intended for DIAMED.

2.3   OCCULOGIX shall not, directly or indirectly, seek customers for the
      PRODUCT or establish a branch or distribution depot related to the PRODUCT
      outside the TERRITORY.

2.4   OCCULOGIX shall not represent, market, nor sell any similar to or
      competitive PRODUCTs with PRODUCT during the term of this Agreement.

2.5   OCCULOGIX shall be solely responsible for all expenses and costs incurred
      in performing its duties hereunder, including, without limitation, all of
      its own operating and sales promotion expenses.

2.6   OCCULOGIX shall use its best efforts to promote the sale and use of, and
      to secure orders and develop the market for the PRODUCT in the TERRITORY.
      The business conducted by OCCULOGIX in connection with the marketing of
      the PRODUCT shall at all times be conducted and maintained so as not to
      detract from, interfere with or adversely reflect upon the goodwill and
      reputation of DIAMED, its TRADEMARKS and/or trade names and the PRODUCT.

2.7   OCCULOGIX also shall make its best efforts that public and private medical
      insurance reimbursement shall be applied for the TREATMENT DISEASE using
      the PRODUCT in the U.S.




3.1 From the date of concluding this Agreement until 5 (five)years after the
date of FDA approval of the PRODUCT, OCCULOGIX will purchase no less than 1000
(one-thousand) units of PRODUCT.

3.2   The minimum purchase quantities from the sixth year on shall annually be
      mutually agreed by both parties acting reasonably and assessing market

3.3   For the purpose of this Article, the PRODUCT shall be considered purchased
      when the PRODUCT has actually been delivered to OCCULOGIX.


4.1   OCCULOGIX shall be responsible, at its own costs and expenses, for
      obtaining and maintaining the FDA and all other applicable approvals and
      validations for the marketing, sales and use of PRODUCT for the TREATMENT
      DISEASE in each country of the TERRITORY under the name of DIAMED. The
      necessary FDA approvals must be obtained by the end of 2006. If the FDA
      approvals can not be obtained by such day and year, OCCULOGIX shall
      consult with DIAMED and attempt to reach a mutual acceptable resolution.
      Despite consultation, if both parties cannot find a mutual acceptable
      resolution, DIAMED may terminate this Agreement upon six (6) months prior
      written notice to OCCULOGIX.

4.2   OCCULOGIX shall inform DIAMED of the documentation which is necessary for
      the FDA approval related to PRODUCT. Upon OCCULOGIX's request, DIAMED
      shall make its best efforts to provide technical data of PRODUCT within
      DIAMED's capacity.

4.3   OCCULOGIX shall not be entitled to any compensation from DIAMED even when
      OCCULOGIX may not obtain the FDA approval, or any other approval, of

4.4   OCCULOGIX shall endeavor to obtain, at its own expenses, the FDA approval
      and other necessary approvals in the TERRITORY of the accessories of the
      PRODUCT, such as Filters or Tubing Sets, which may be required for the

4.5   Without limiting any other provision in the Agreement, OCCULOGIX shall
      fully comply with the FDA's Medical Device Reporting (hereinafter referred
      to as M.D.R.") regulation and with the S.O.P.


5.1   In the event, that DIAMED develops improved PRODUCTs which may replace the
      existing PRODUCT, OCCULOGIX -will have the first refusal right to obtain
      the distribution rights of such improved PRODUCT of PRODUCT solely used
      for the TREATMENT DISEASE in the TERRITORY under the terms and conditions
      by mutual consent; provided, however, that OCCULOGIX shall, at its own
      costs and expenses, obtain all applicable approvals in the name of DIAMED
      of such



      PRODUCTs for the TREATMENT DISEASE in the TERRITORY within a reasonable


6.1   OCCULOGIX shall be the exclusive licensee of the TRADEMARKS owned by
      DIAMED in the TERRITORY for use in association with the PRODUCT and shall
      use the TRADEMARKS without limitation, as instructed by DIAMED in
      distributing the PRODUCT purchased hereunder and shall not use any other
      TRADEMARKS in connection with such distribution without prior written
      consent of DIAMED. OCCULOGIX acknowledges that, as between DIAMED and
      OCCULOGIX, DIAMED is the owner of all rights, title and interest in and to
      the TRADEMARKS in the TERRITORY in any form or embodiment thereof and is
      the owner of the goodwill attached or which shall become attached to the
      TRADEMARKS in connection with the business and goods in relation to which
      the same has been, is or shall be used. Sales by OCCULOGIX shall be deemed
      to have been made by DIAMED for purposes of trademark registration and all
      uses of the TRADEMARKS by OCCULOGIX shall inure to the benefit of DIAMED.
      OCCULOGIX shall not, at any time, do or suffer to be done any act or thing
      which may in any way adversely affect any rights of DIAMED in and to the
      TRADEMARKS or any registrations thereof or which, directly or indirectly,
      may reduce the value of the TRADEMARKS or detract from its reputation. At
      DIAMED's request, OCCULOGIX shall execute any documents, including
      registered user agreements, reasonably required by DIAMED to confirm
      DIAMED's ownership of all rights in and to the TRADEMARKS in the TERRITORY
      and to confirm the respective rights of DIAMED and OCCULOGIX under this
      Agreement. OCCULOGIX shall not alter, obliterate, deface or remove any
      mark, marking, serial number or other symbol carried on the PRODUCT or on
      the packaging in which the PRODUCT are enclosed without the consent of
      DIAMED. In the event that DIAMED desires to change any such mark, marking,
      serial number or other symbol, OCCULOGIX will cooperate with DIAMED in
      such manner as may be agreed upon by the parties. OCCULOGIX never shall
      challenge DIAMED's ownership of or the validity of the TRADEMARKS or any
      application for registrations thereof, or any trademark registrations
      thereof, or any rights of DIAMED therein.

6.2   Should OCCULOGIX have already registered any of the TRADEMARKS prior to
      this agreement in its name or its predecessor's name, OCCULOGIX will take
      immediate action to change the ownership to DIAMED and inform DIAMED on
      such action without delay.

6.3   During the term of the Agreement and thereafter, OCCULOGIX shall not apply
      for or acquire the registration of the TRADEMARKS, nor shall OCCULOGIX
      contest DIAMED's right in or disturb DIAMED's use of the TRADEMARKS or
      goodwill therein. Should OCCULOGIX have the TRADEMARKS registered in its
      name of any other person, DIAMED shall have the right to have the
      registration cancelled or transferred to DIAMED.

6.4   In the event that OCCULOGIX learns of any infringement or imitation of the
      TRADEMARKS or of any use by any person of any trademark similar to the
      TRADEMARKS, it promptly shall notify DIAMED thereof. DIAMED thereupon



      take such action as it deems advisable for the protection of its rights in
      and to the TRADEMARKS and, if requested to do so by DIAMED. OCCULOGIX
      shall cooperate with DIAMED in all respects at DIAMED's sole expense. In
      no event, however, shall DIAMED be required to take any action if it deems
      it inadvisable to do so and OCCULQGIX shall have no right to take any
      action with respect to the TRADEMARKS without DIAMED's prior written

6.5   Upon the termination of this Agreement for any reason whatsoever,
      OCCULOGIX shall, except as DIAMED may specifically authorize in writing,
      immediately cease and desist from carrying on any and all use of the
      TRADEMARKS, and shall immediately cease and desist from making any
      statements indicating, explicitly or implicitly, that it is an authorized
      DIAMED distributor or dealer of DIAMED's PRODUCTs or other DIAMED goods
      and services.

6.6   Any patent, design, copyright and other intellectual property rights
      embodied in the PRODUCT shall be the sole property of DIAMED or the third
      party designated by DIAMED; and OCCULOGIX shall not, either directly or
      indirectly, contest nor assist others in contesting the validity of such
      intellectual property rights. DIAMED shall be entitled to terminate this
      Agreement forthwith on notice to OCCULOGIX if OCCULOGIX should violate
      said obligation. OCCULOGIX shall not acquire any right in the PRODUCT by
      execution of this Agreement or performance hereunder or otherwise and
      shall not use any of them after termination of this Agreement resulting
      from expiration of its term or any other cause whatsoever.

6.7   Nothing in this Agreement shall be construed as a warranty or
      representation that the PRODUCT or the use thereof will be free from
      infringement of any patent or other intellectual property rights of any
      third party. DIAMED shall not be under any obligation to defend, or to
      participate in the defense of, OCCULOGIX against any claim or suit
      alleging such infringement; provided, however, that DIAMED shall, at
      OCCULOGIX's costs, cooperate and assist OCCULOGIX in the defense of any
      such claim or suit.

6.8   In the event that OCCULOGIX obtains any intellectual property right
      relating to the TREATMENT DISEASE using PRODUCT, DIAMED shall have the
      first refusal right to obtain a non-exclusive right and license from
      OCCULOGIX to use such intellectual property right for manufacture, sales
      and use of PRODUCT outside the TERRITORY for such territories where the
      PRODUCT is actively distributed during the term of this Agreement.


OCCULOGIX shall exert its best efforts in marketing, promoting and advertising
the PRODUCT at its own costs.


OCCULOGIX shall maintain sufficient stock of the PRODUCT for the purpose of
distribution at its own cost, and shall deliver the PRODUCT to its customers by
a "first in, first out" method.




      a)    The sole purpose of this agreement concerns the marketing and
            distribution rights for the PRODUCT.

      b)    DIAMED agrees for OCCULOGIX to enter into a manufacturing and supply
            agreement for the PRODUCT only with MANUFACTURER nominated by DIAMED
            provided that such MANUFACTURER meets the reasonable supply and
            quality demands of OCCULOGIX and which will incorporate all rights
            and obligations among OCCULOGIX and MANUFACTURER. In advance of
            this, DIAMED will conclude an agreement with MANUFACTURER to allow
            such manufacturing and supply agreement. DIAMED has the right to
            terminate such agreement and provide an alternative MANUFACTURER for
            OCCULOGIX to conclude a new agreement.

      c)    Occulogix has the right to request PRODUCT changes by MANUFACTURER
            at OCCULOGIX's expense. Any PRODUCT change however, must be approved
            by DIAMED in writing and in advance.

      d)    For the duration of this agreement, the rights on such PRODUCT
            changes are passed over to OCCULOGIX with validity for its TERRITORY
            only. Upon termination of the agreement, all such rights are to be
            transferred to DIAMED without compensation. The rights for all other
            territories pass over to DIAMED immediately when developed and
            without compensation.

      OCCULOGIX agrees that a development fee shall be paid by the Manufacturer
      to DIAMED.

ARTICLE 11: deleted


During the term of this Agreement including any renewal under Article 15 and for
a period of five (5) years thereafter, or ten (15) years after the effective
data of this Agreement, whichever is longer, neither party hereto shall disclose
or otherwise divulge to any third party any confidential information which may
be acquired from the other in connection with the PRODUCT, this Agreement, or
its performance, except for any information which:

      a)    is known to the public or to the receiving party prior to

      b)    is disclosed to the receiving party by a third party under no
            obligation of secrecy to the other party after disclosure, or

      c)    becomes known to the public through no fault of the receiving party
            after disclosures, or

      d)    is ordered to be disclosed by a court of law.




13.1  Neither party hereto shall be liable to the other in any manner for
      failure or delay in fulfilment of all or part of this Agreement, or any
      individual contract, which is directly or indirectly owing to any causes
      or circumstances beyond that party's control, including, but not limited
      to, acts of God, governmental orders or restriction, war, war-like
      conditions hostilities, sanctions, mobilization, blockade, embargo,
      detention, revolution, riot, looting, strike, lockout, plague or other
      epidemics, fire, earthquake, explosion, flood, and shortage of raw

13.2  Notwithstanding the foregoing, no occurrence of an event of Force Majeure
      shall relieve OCCULOGIX of its obligation to make any payment hereunder.


OCCULOGIX shall not assign, transfer or otherwise dispose of this Agreement,
voluntarily or by operation of law, in whole or in part, to any individual, firm
or corporation without the prior written consent of DIAMED.


15.1  This agreement shall be effective from October 25, 2004 until ten (10)
      years after the date of FDA approval of PRODUCT for the TREATMENT DISEASE,
      unless terminated prior to such expiration date by either party, as
      provided herein, and shall automatically be extended for one (1) year term
      unless DIAMED or OCCULOGIX gives the other written notice of its intention
      to terminate this Agreement at least six (6) months prior to the
      expiration date of the term then in effect.

15.2  Notwithstanding the foregoing paragraph, the following paragraphs shall
      survive any expiration or termination of this Agreement: Article 6 and 12,
      Paragraph 16.2 and Article 20.


16.1  DIAMED may forthwith terminate this Agreement without any compensation to
      OCCULOGIX by giving a written notice of termination to OCCULOGIX if:

A. OCCULOGIX becomes insolvent or a petition in bankruptcy or for corporate
   reorganization or for any similar relief is filed by or against OCCULOGIX
   or a receiver is appointed with respect to any of the assets of OCCULOGIX,
   or liquidation proceeding is commenced by or against OCCULOGIX, or

B. the whole or an important part of the business of OCCULOGIX is transferred
   to a third party by agreement, order of court or otherwise, and such
   transfer adversely affects the sale of the PRODUCT in the TERRITORY
   pursuant to this Agreement, or

C. OCCULOGIX defaults in payment for any PRODUCT or any debt owing to DIAMED
   or otherwise defaults in relation to any of the provisions of this
   Agreement hereunder except for those in Paragraphs 2.3 and 2.4 and does



   make the payment or remedy the default within thirty (30) days after a
   prior written notice is given requesting the payment or remedy of the
   default, or

D. any essential changes in the management personnel or ownership of the
   shares of OCCULOGIX would adversely affect the sale of the PRODUCT in the
   TERRITORY pursuant to this Agreement, or

E. OCCULOGIX violates the prohibition provided for in Paragraphs 2.3 and 2.4
   herefor and does not take reasonable steps to remedy the violation within
   thirty (30) days after a written notice is given evidencing such

F. if the production agreement between OCCULOGIX and MANUFACTURER is

16.2  Termination of this Agreement pursuant to the preceding Paragraph shall be
      without prejudice and shall be additional to any right of DIAMED under
      this Agreement, law, statute or otherwise. Upon termination of this
      Agreement and/or such individual contracts for the PRODUCT, all payments
      to be made under this Agreement and/or such individual contracts in
      connection with the sale of the PRODUCT hereunder up to the date of
      termination shall become due.

16.3  If OCCULOGIX fails to fulfil the provisions and/or payments stipulated in
      the Paragraphs 3.1 and 3.2. DIAMED may, at its option, modify the
      exclusive right granted to OCCULOGIX hereunder to a non-exclusive right.


This Agreement shall be governed by the laws of Germany, seat of court is Koln


The waiver, express or implied, by either of the parties hereto of any right
hereunder or of any failure to perform or breach hereof by the other party
hereto shall not constitute or be deemed as a waiver of any other right
hereunder or of any other failure to perform or breach hereof by the other
party, whether of a similar or dissimilar nature.


This Agreement and its Exhibit contain the entire agreement of the parties with
respect to the subject matter herein contained and supersedes any prior
Agreements or understandings between the parties except the S.O.P.


All disputes, controversies or differences which may arise between the parties,
out of or in relation to or in connection with this Agreement, or for the breach
thereof, shall be settled by mutual consultation between the parties hereto in
good faith as promptly as possible, but failing an amicable settlement, shall be
finally settled by arbitration to be held in Koln (Cologne), Germany under the
Rules of Conciliation and



Arbitration of the International Chamber of Commerce, by which each party hereto
agree to be bound.


21.1  Unless otherwise provided in this Agreement, all notices to be given
      hereunder shall be in writing and sent by registered airmail to the
      respective addresses of the parties stated above or to such other
      addresses as may be indicated in writing by the parties hereto by notice
      pursuant to this Paragraph. If either party has changed its address, a
      written notice thereof shall be given to the other party pursuant to this

21.2  All notices shall, be deemed to have been given on the day when such
      notice is mailed by registered airmail.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives as of the day and year first
above written.

/s/ ELIAS VAMVAKAS                         /s/ Hans K. Stock
------------------------------             -------------------------------------
OCCULOGIX CORPORATION                      DIAMED Medizintechnik GmbH
Date: October 25, 2004                         Hans K. Stock
                                           Date: October 25, 2004



Exhibit A


Product means a blood plasma treatment device including accessories and software
for use in the treatment of Treatment Diseases.

MANUFACTURER shall mean:

Mesys GmbH Medizinische Systeme
Beneckeallee 30
30419 Hannover
Fon: +49-511 67 99 99-0
Fax: +49-511 67 99 99-11





Exhibit B

TRADEMARKS shall mean the following DIAMED trademarks:

Octo Nova

Octo Therm