Exhibit 10.20
ROYALTY AGREEMENT
This Royalty Agreement is entered into as of October 29, 2002 by and
between MED CLOSE CORP., a Nevada corporation ("Med Close"), and CTM GROUP,
INC., a Nevada corporation ("CTM"), with reference to the following facts and on
the following terms and conditions:
R E C I T A L
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WHEREAS, Med Close is a wholly-owned subsidiary of CPC of America,
Inc., a Nevada corporation.
WHEREAS, Med Close has licensed from Med Enclosures, LLC, a Nevada
limited liability company and majority-owned subsidiary of CPC ("XXX"), the
right to use certain intellectual property rights relating to arterial closure
products and procedures in order to develop their non-cardiac applications.
WHEREAS, Med Close desires to enter into this Royalty Agreement whereby
Med Close will pay CTM royalties on the terms and conditions provided for
herein.
NOW, THEREFORE, for good and valuable consideration, the parties agree
as follows:
A G R E E M E N T
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1. ROYALTY PAYMENT. Med Close shall pay CTM, or its assigns, the
following:
(a) a royalty equal to 2.5% of the Net Sales (as defined
herein) of Med Close from the sale of any product that would, except for this
agreement, infringe a claim in the First Xxxxx Patent, either directly or
contributorily, or which would induce infringement of the First Xxxxx Patent.
For purposes of this Section 1(a), the term "First Xxxxx Patent" shall refer to
the U.S. Patent No. 5,486,195.
(b) a royalty equal to 2.5% of the Net Sales of Med Close from
the sale of any product that would, except for this agreement, infringe a claim
in the Second Xxxxx Patent, either directly or contributorily, or which would
induce infringement of the Second Xxxxx Patent. For purposes of this Section
1(b), the term "Second Xxxxx Patent" shall refer to the U.S. Patent No.
5,941,897.
(c) a royalty equal to 2.5% of the Net Sales of Med Close from
the sale of any product that would, except for this agreement, infringe a claim
in the Third Xxxxx Patent, either directly or contributorily, or which would
induce infringement of the Third Xxxxx Patent. For purposes of this Section
1(c), the term "Third Xxxxx Patent" shall refer to the U.S. Patent No.
5,725,551.
(d) For purposes of this Agreement, the term "Net Sales" shall
mean gross receipts actually collected by Med Close less deductions for any and
all allowances given such as advertising, return allowance, quantity and cash
discounts and all sales and excise taxes, duties, transport and handling charges
actually paid out."
2. TIME OF PAYMENT. Payments shall be made by Med Close to CTM, or its
assigns, within forty-five (45) days of the end of each calendar quarter
commencing with the first full calendar quarter following execution of this
Royalty Agreement. Each payment shall include a written report from Med Close
indicating the basis upon which the royalty was computed.
3. PLACE OF PAYMENTS. Royalty payments shall be tendered by Med Close
to CTM at the following address: CTM Group, Inc., 0000 Xxxx Xxxxxxxx Xxxx, Xxxxx
000, Xxx Xxxxx, Xxxxxx 00000, or at such other address as CTM or its assigns may
provide Med Close in writing from time to time.
4. AUDIT RIGHTS. Med Close shall keep true and sufficient records to
determine payments due pursuant to this Agreement. These records shall be
maintained and open to inspection at CTM's expense at reasonable intervals by an
independent auditor during regular business hours of Med Close for a period of
three years following each accounting report filed hereunder. Med Close shall
provide all reasonable assistance to the auditor for the purpose of conducting
the audit. CTM shall select the independent auditor, and shall instruct each
such auditor to exert his or her best efforts to avoid disruption of Med Close's
business in the conduct of the audit. In the event the audit determines that the
amount paid by Med Close to CTM for any quarterly accounting period was less
than 95% of the amount found to be due by the independent auditor for the same
period, then the cost of the audit shall be paid, together with any unpaid
royalty payments and interest thereon, by Med Close.
5. TRADE OR BUSINESS DEBT. Med Close acknowledges that the obligations
as evidenced by this Royalty Agreement to tender payments to CTM based upon
certain revenues generated by Med Close, constitutes a trade or business
obligation.
6. TERMINATION. This Agreement shall terminate only upon the written
agreement of all parties.
7. MISCELLANEOUS.
7.1 NOTICES. All notices, requests, demands, and other
communications given, or required to be given pursuant to the terms of this
Royalty Agreement shall be in writing and may be delivered in person (by hand,
messenger, or other confirmable form of delivery), or be sent by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows,
or by FedEx or other nationally recognized overnight courier service, addressed
as follows, or by facsimile transmission, to the following respective numbers,
followed by a copy being delivered in person, by mail, or by overnight courier
as specified herein:
If to Med Close: 0000 00xx Xxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
If to CTM: CTM Group, Inc.
0000 Xxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
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Either party may, by written notice to the other, specify a different address or
numbers for notice purposes. Any notice sent to the party to whom it is
addressed in accordance with this Section will be deemed to have been given (i)
when received, if personally delivered; (ii) if sent by registered or certified
mail, return receipt requested, upon the date of delivery shown on the receipt
card, or if no date is shown, the postmark thereon; (iii) if sent via FedEx or
other nationally recognized overnight courier, one (1) business day after
deposit with such overnight courier; or (iv) if sent by facsimile transmission,
on the day on which it is sent, if receipt of transmission is confirmed by
telephone. If notice is received on a Saturday, Sunday or legal holiday, it will
be deemed to have been given and received on the next following business day.
7.2 NO AGENT. This Royalty Agreement does not constitute Med
Close as the agent or legal representative of CTM for any purpose whatsoever.
Med Close shall not have the right or authority to assume or to create any
obligation or responsibility, express or implied, on behalf or in the name of
CTM or to bind CTM in any manner.
7.3 SEVERABILITY. If any clause or provision of this Royalty
Agreement should, under any applicable laws, be held to be illegal, void or
unenforceable, such clause or provision shall be considered separately and
renegotiated in good faith between the parties, taking into consideration the
spirit of this Royalty Agreement, so as to agree on any other alternate clause
or provision, it being understood that in any case the remaining portion of this
Royalty Agreement shall continue in full force and effect.
7.4 WAIVERS. No delay or failure by either party to this
Royalty Agreement to exercise any right, power or remedy with regard to any
breach or default by the other party shall impair any right, power or remedy of
the former party, and shall not be construed to be a waiver of any breach or
default of the same or any other provision of this Royalty Agreement.
7.5 HEADINGS AND GENDER. The section headings used in this
Royalty Agreement are intended solely for convenience of reference and shall not
in any way or manner amplify, limit, modify or otherwise be used in the
interpretation of any of the provisions of this Royalty Agreement, and the
masculine, feminine or neuter gender and the singular or plural number shall be
deemed to include the others whenever the context so indicates or requires.
7.6 SUCCESSORS. The covenants, agreements, terms and
conditions contained in this Royalty Agreement shall be binding upon and inure
to the benefit of the successors, assigns, receivers and trustees of the parties
hereto. Except as otherwise expressly provided herein, this Agreement and any of
the rights, interests or obligations hereunder may not be assigned by any of the
parties hereto. All covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto will bind and inure to the benefit of the
respective permitted successors and assigns of the parties hereto whether so
expressed or not.
7.7 ENTIRE AGREEMENT. This Royalty Agreement sets forth the
entire agreement between the parties hereto and fully supersedes any and all
prior agreements or understandings between the parties hereto pertaining to the
subject matter hereof. No change in, modification of or addition, amendment or
supplement to this Royalty Agreement shall be valid unless set forth in writing
and signed and dated by each of the parties hereto subsequent to the execution
of this Royalty Agreement.
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7.8 COUNTERPARTS. This Royalty Agreement may be executed in
two counterparts both of which shall constitute only one agreement.
7.9 CHOICE OF LAW. This Royalty Agreement executed and
delivered or to be executed and delivered in connection herewith and the rights
and obligations of the parties hereto and thereto shall be governed by and
construed in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Royalty
Agreement as of the day and year first above written.
CTM GROUP, INC., MED CLOSE CORP.
A NEVADA CORPORATION A NEVADA CORPORATION
By: /S/ XXXXX XXXXXXX By: /S/ XXX X. XXXXXXX
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Xxxxx Xxxxxxx, President Xxx X. Xxxxxxx, President
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