Consulting Agreement - OccuLogix Corp. and Hans K. Stock
CONSULTING AGREEMENT
THIS AGREEMENT (the "Agreement") is made by and between OccuLogix
Corporation, a Florida Corporation (the "OccuLogix"), and Dipl. Ing. Hans K.
Stock, an individual living in Germany ("Stock").
WHEREAS, Stock seeks to assist OccuLogix in procuring a license (the
"License") to US patent 6,245,038 issued June 12, 2001 (the "Patent") from Prof.
Dr. Helmut Borberg and or Prof. Dr. Richard Brunner, both individuals living in
Germany and both listed as inventors in provisional US patent application
60/034,909 (the "Inventors") which is the parent and domestic-priority
application of US letters patent 6,245,038 issued June 12, 2001, and
WHEREAS, OccuLogix desires to acquire the License to the Patent and
requests Stock's assistance in procuring said License.
NOW THEREFORE, in consideration for the Retainer and Consulting
Payments as described below, and other good and valuable consideration, the
Parties enter into this Consulting Agreement in accordance with the terms set
forth below.
1. Representation by Stock. Stock warrants that he is a natural person living
in Germany who, along with Prof. Dr. Richard Brunner and Prof. Dr. Helmut
Borberg, is listed as an inventor in provisional US patent application
60/034,909 which is the parent and domestic-priority application of US
letters patent 6,245,038 issued June 12, 2001.
2. Representation by OccuLogix. OccuLogix represents that it is a bona fide
corporation in good standing in Florida.
3. Patent Rights. Shall mean any and all of the rights, title, ownership and
interests in and to US letters patent 6,245,038 and any and all
inventions, modifications, continuations-in-part, extensions, divisions,
improvements, etc., in any and all areas that relate directly to the
Patent, regardless of whether such inventions or improvements are
patentable or may become patented; It is expressly agreed that any and all
such inventions, modifications, continuations-in-part, extensions,
divisions, improvements, etc. shall automatically be incorporated herein
without the payment of any additional fees, royalties or any other
compensation or considerations of any kind.
4. Consulting Retainer Payments. OccuLogix agrees to pay Stock Fifty Thousand
Dollars ($50,000 USD) annually as an advance and credited against any and
all Consulting Payments paid in accordance with this License. Such
Consulting Retainer Payments shall be paid to Stock in equal payments of
Twelve Thousand Five-hundred Dollars ($12,500 USD), made quarterly, on or
before the expiration of Forty-five (45) days after the reporting close of
each prior calendar quarter. The initial payment of Twelve Thousand
Five-hundred Dollars ($12,500 USD) shall be due and payable within
Forty-five (45) Days of the Effective Date herein.
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5. Consulting Payments. OccuLogix agrees to pay Stock a total of One Percent
(1.0% USD) of Total Net Revenues that OccuLogix receives from the bona
fide commercial sales of its Products sold in reliance and dependence upon
the validity of the Patent's claims and of the Patent Rights in the
Territory. All payments due hereunder shall continue until the termination
of the Agreement, to Stock, his assigns, heirs, or otherwise; even in the
event of Stock's death.
6. Accounting and Timing of Royalty Payments. Upon making each Royalty
Payment, Licensee shall provide Stock with a summary of the accounting
used to determine the amount of Royalty Payment due. Royalty Payments
shall be made by wire transfer and shall be computed on Total Net Revenues
received by the Licensee by the reporting close of each calendar quarter
and distributed and paid to Stock and on a quarterly basis, on or before
the expiration of Forty-five (45) days after the reporting close of each
prior calendar quarter.
7. Territory. Shall mean the United States and any other jurisdictions
subject to recognizing any valid claims of the Patent or of the Patent
Rights.
8. Total Net Revenues. shall mean total gross revenues less any discounts,
rebates, shipping costs, handling costs, transportation insurance costs,
importation fees, and duties on any and all Products sold by the Licensee
in the Territory and which are sold in reliance upon and specifically used
in accordance with or subject to any of the valid claims of the Patent.
9. Records. OccuLogix agrees to keep complete and correct books, accounts and
records according to Generally Accepted Accounting Principles (GAAP)
regulations to facilitate computation of Royalty Payments. Stock, or his
representatives acceptable to OccuLogix, shall have a full right of
accounting including the right to confidentially examine OccuLogix's books
and records, at all reasonable times and upon reasonable notice, for the
purpose of verifying the amount of Royalty Payments due.
10. Products. Shall mean any of the Licensee's products, goods or technologies
sold to unaffiliated third parties in the Territory for the purposes of
providing extracorporeal therapies for the treatment of the ophthalmic
diseases as defined by any valid claim(s) of the Patent. In this case,
Licensee's sale of extracorporeal filters and tubing sets for use in any
and all ophthalmic indications.
11. Term. The Royalty Payments shall be due to Stock beginning with the first
bona fide commercial sale of any Product in the Territory and shall
terminate upon the first of any of the following three events to occur: a)
All patents of the Patent Rights expire, b) All patent claims of the
Patent Rights are invalidated, or c) A similarly fashioned competitive
extracorporeal product, method or technology is commercially introduced in
the Territory for use in ophthalmic indications that could not be deterred
by best-efforts enforcement/infringement proceedings brought by Licensee
against the competitive product, method or technology where such
proceedings are made in reliance in full or in part upon the Patent's
claims and or the Patent Rights.
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12. Relationship of the Parties; Indemnification. It is agreed that this
Agreement does not make either Party herein a general or special agent,
legal representative, subsidiary, joint venturer, partner, employee or
servant of the other Party herein for any purpose.
13. Breach and Disputes. Any breaching Party shall have Thirty (30) Days from
the date of notification to cure such breach. Any dispute between the
Parties to this Agreement shall be resolved through binding arbitration,
which shall be governed under the rules and regulations of the American
Arbitration Association.
14. Forum, Venue and Governing Law. This Agreement shall be governed and
interpreted under Delaware law (without applying its conflict of law
principles). Exclusive venue for legal proceedings arising hereunder shall
be in Hillsborough County, Florida.
15. Entire Agreement. This Agreement supersedes any prior understanding that
may have been reached between the Parties and encompasses the entire
agreement between the Parties with respect to the Patent and the Patent
Rights. The terms of this Agreement are confidential and shall be
maintained by the Parties in accordance thereby.
16. Modification. This Agreement cannot be modified except in writing executed
mutually between the Parties.
IN WITNESS WHEREOF, the Parties have signed and executed this
Agreement and have caused this Agreement to become effective as of the Effective
Date last executed below.
OCCULOGIX CORPORATION DIPL. ING. HANS K. STOCK
By: Richard Davis /s/ Hans Stock
___________________________ _________________________________
Title: President and CEO
________________________
Date: June 25, 2002 Date: June 25, 2002
_________________________ __________________________