CONSULTING AGREEMENT
THIS
AGREEMENT
is made
effective the 1st
day of
September, 2005
A
M O N G:
OCCULOGIX,
INC., a
corporation incorporated under the laws of the State of Delaware
(hereinafter
referred to as “OccuLogix”)
-
and
-
AMD
MEDICAL SERVICES INC., a
corporation incorporated under the laws of the Province of Ontario
(hereinafter
referred to as “AMD”)
-
and
-
XX.
XXXXXX X. XXXXXX, M.D. of
the
Town of Richmond Hill in the Province of Ontario
(hereinafter
referred to as “Xxxxxx”)
WHEREAS
Xxxxxx
is the Vice President, Clinical Affairs of OccuLogix and a beneficial owner,
director and officer of AMD;
AND
WHEREAS
Quest
Clinical Trials Inc. (now AMD), Rheo Clinic Inc. and OccuLogix, L.P., both
of
which are affiliates of OccuLogix, and Xxxxxx entered into an amended and
restated consulting agreement (the “Consulting
Agreement”),
dated
as of August 1, 2003, pursuant to which, among other things, Quest Clinical
Trials Inc. (now AMD) provided medical and other services to Rheo Clinic
Inc. in
connection with the operation of its Rheopheresis™ clinic located in the City of
Mississauga (the “Rheo
Clinic”);
AND
WHEREAS
now
OccuLogix effectively operates the Rheo Clinic, and the nature of its practice
has changed in such a manner so as to make it appropriate to adjust the scope
and nature of the services that were being provided by AMD pursuant to the
Consulting Agreement;
AND
WHEREAS the
main
focus of the services provided by AMD under
the
Consulting Agreement was the operation of the Rheo Clinic, and the main focus
of
the Medical Services (defined below), to be provided by AMD hereunder, will
be
the general support and furtherance of the clinical trial activities of
OccuLogix, some or all of which will or may take place at the Rheo Clinic;
AND
WHEREAS it
is the
intention of the parties hereto that this Agreement replace the Consulting
Agreement;
NOW,
THEREFORE, in
consideration of the promises and mutual covenants set out in this Agreement
(the receipt and sufficiency of which are hereby acknowledged by the parties),
the parties hereto agree as follows:
1.1 OccuLogix
hereby retains AMD, and AMD hereby agrees to serve OccuLogix, as a consultant
on
the terms and conditions hereinafter set forth. The parties hereto hereby
acknowledge and agree that AMD shall act hereunder as an independent contractor
and that this Agreement is not intended to, and shall not operate to, create
an
employment, partnership, joint venture or agency relationship either (i)
between
OccuLogix and AMD or (ii) between OccuLogix and any of AMD’s employees,
directors, officers or agents.
2. PERFORMANCE
OF DUTIES
2.1 AMD
shall
provide to OccuLogix the services of Xxxxxx, in his capacity as a qualified
and
licensed medical practitioner, to support and advance the clinical trial
activities of OccuLogix. Xxxxxx shall devote one and a quarter days per week
to
providing such services and, from time to time, also shall make himself
available to OccuLogix for additional consultation on a mutually agreed
schedule.
2.2 AMD
shall
establish a roster of qualified and appropriately licensed physicians,
acceptable to OccuLogix acting reasonably, who, upon the request of OccuLogix,
shall provide medical supervisory and other medical services to OccuLogix
for
its clinical trial activities (together with the services to be provided
by
Xxxxxx pursuant to Section 2.1, the “Medical
Services”).
2.3 AMD
and
Xxxxxx shall ensure that all of the physicians providing the Medical Services
possess the skills and clinical judgment necessary to handle appropriately
each
situation in which the Medical Services are being provided, including, without
limitation, the ability to administer basic CPR. AMD shall be solely responsible
for supervising and evaluating and, if necessary, disciplining physicians
providing the Medical Services. AMD also shall ensure that each such physician
carries, at all times, adequate and up-to-date malpractice insurance and
shall
arrange for delivery of proof of same upon the request of OccuLogix.
2.4 AMD
and
Xxxxxx shall cause all of the physicians providing the Medical Services
(including, for greater certainty, Xxxxxx) to abide by, and implement, the
principles of Good Clinical Practice, as established from time to time, at
all
times in connection with the provision of the Medical Services
hereunder.
2.5 AMD,
on a
timely basis, shall prepare and submit to OccuLogix such written reports,
relating to the provision of the Medical Services hereunder, as OccuLogix
may
request from time to time.
3. APPLICABLE
CHARGES
3.1 In
consideration of the Medical Services provided hereunder, OccuLogix shall
pay to
AMD (i) a monthly fee of Cdn$6,250 and (ii) an additional daily fee of Cdn$1,000
for each physician who provides the Medical Services, except Xxxxxx, for
each
day on which such physician provides the Medical Services.
3.2 AMD
will
submit a written invoice to OccuLogix on a monthly basis. All invoices shall
be
due and payable upon receipt, subject only to verification by OccuLogix of
the
validity of the amounts invoiced.
3.3 OccuLogix
shall reimburse AMD for all reasonable incidental expenses incurred by AMD,
or
the physicians providing the Medical Services, in connection with the provision
of the Medical Services.
3.4 OccuLogix
shall have no liability or responsibility whatsoever for, or in respect of,
the
withholding, collection or payment of income taxes, employment insurance,
statutory pension plan remittances, vacation pay, statutory holiday pay,
workers’ compensation premiums or other taxes, levies or statutory charges or
surcharges of any nature whatsoever relating to, or for the benefit of, any
person employed by AMD. AMD hereby agrees to indemnify OccuLogix for, and
to
hold it harmless from, any order, penalty, interest, tax or other liability
of
any kind that may be assessed or levied against, or incurred by, OccuLogix
in
connection with any of the foregoing matters.
4. TERMINATION
4.1 This
Agreement may be terminated by any party hereto upon 30 days’ written notice to
the other parties hereto.
5. CONFIDENTIAL
INFORMATION
5.1 AMD
and
Xxxxxx hereby agree to keep in strictest confidence all information relating
to
the business and activities of OccuLogix (the “Confidential
Information”)
which
they have acquired in connection with the performance of their obligations
under
the Consulting Agreement or will acquire in connection with the performance
of
their obligations hereunder. Without limiting the generality of the foregoing,
each of AMD and Xxxxxx further agrees that neither it nor he will publish
or
communicate, or otherwise disclose to any unauthorized third party, any
Confidential Information without the prior written consent of OccuLogix,
which
consent may be withheld unreasonably. This confidentiality obligation shall
survive the termination of this Agreement.
5.2 Confidential
Information includes, but is not limited to, the following:
| (a) |
such
information as any director, officer or senior employee of OccuLogix
indicates to AMD or Xxxxxx, from time to time, as being “confidential
information”;
|
| (b) |
any
secret, trade secret or know-how of OccuLogix and any information
relating
to the business and activities of OccuLogix or the business or
activities
of any third party with whom OccuLogix is engaged in a business
relationship of any kind (including, without limitation, the identity
of
OccuLogix’s customers), provided that such information is not generally
known to the public; and
|
| (c) |
without
limiting the generality of Section 5.2(b), (i) information relating
to
inventions, discoveries, improvements, products, product specifications,
processes, procedures, machines, apparatus and technical data,
regardless
of whether any of the foregoing is conceived or developed by AMD,
(ii)
information relating to present or future plans and projects of
OccuLogix
and (iii) customer lists, contracts, pricing policies, marketing
strategies and other similar
information.
|
5.3 AMD
and
Xxxxxx hereby agree that they shall not use any Confidential Information,
directly or indirectly, except in the performance of their obligations
hereunder.
5.4 Upon
the
termination of this Agreement, AMD shall deliver to OccuLogix all documents
and
other records, within AMD’s possession and the possession of all physicians who
ever provided the Medical Services, that contain or refer to Confidential
Information, including, without limitation, paper documents, computer files
and
software programs (whether complete or in the process of being
developed).
6. INDEMNIFICATION
AND INSURANCE
6.1 OccuLogix
shall indemnify, defend and hold harmless each of AMD, Xxxxxx and the physicians
providing the Medical Services (individually, an “Indemnitee”)
from
and against any and all actions, suits, proceedings, liabilities and damages
(individually, a “Claim”)
arising
from the provision of the Medical Services or from the negligent acts or
omissions of OccuLogix or any of its directors, officers, agents or employees
(other than, for greater certainty, Xxxxxx) in connection with this Agreement.
AMD and Xxxxxx shall give OccuLogix prompt notice of any claim or suit
instituted, of which it or he has knowledge, that, in any way, directly or
indirectly, affects or might affect OccuLogix, and OccuLogix shall have the
right to participate, at its expense, in the defence of the same; provided,
however, that OccuLogix shall not be obligated to indemnify any Indemnitee
to
the extent that a Claim is judicially determined to be attributable to the
gross
negligence or wilful malfeasance of an Indemnitee, including, without
limitation, such Indemnitee’s failure to comply with any applicable governmental
requirements or its or his failure to adhere to the terms of an applicable
clinical trial protocol or to carry out OccuLogix’s instructions. Such exception
to OccuLogix’s obligation of indemnification shall not apply if said judicial
determination provides that such gross negligence occurred as a result of
such
Indemnitee’s compliance with an applicable clinical trial protocol or
OccuLogix’s instructions.
6.2 OccuLogix
shall maintain, during the term of this Agreement, general liability insurance
or commercial liability insurance (including products liability, contractual
liability and clinical testing liability) with reputable and financially
secure
insurance carriers to cover its clinical trial activities, with minimum limits
of U.S.$2,000,000 per occurrence. Such insurance shall name AMD, Xxxxxx and
the
physicians providing the Medical Services as additional insureds. Such insurance
shall be primary coverage and shall be written to cover claims incurred,
discovered, manifested or made during and after the expiration of this
Agreement.
7. ASSIGNMENT
This
Agreement, and the rights and obligations hereunder, may not be assigned
by any
of the parties hereto without the prior written consent of the other parties
hereto.
8. NOTICES
8.1 Any
notice to be given by any party hereto to another party hereto under, or
in
connection with, this Agreement shall be in writing and signed by or on behalf
of the party giving it. Notice shall be served by sending it by fax to the
number set out in Section 8.2, or delivering it by hand, or sending it by
pre-paid recorded delivery, special delivery or registered post, to the address
set out in Section 8.2 and, in each case, marked for the attention of the
relevant party (or as otherwise notified from time to time in accordance
with
the provisions of this Section 8). Any notice so served by hand, fax or
post shall be deemed to have been duly given:
| (a) |
in
the case of delivery by hand, when
delivered;
|
| (b) |
in
the case of fax, at the time of
transmission;
|
| (c) |
in
the case of prepaid recorded delivery, special delivery or registered
post, at 10 a.m. on the second business day following the date
of
posting;
|
provided
that, in each case where delivery by hand or by fax occurs after 5 p.m. on
a
business day or on a day which is not a business day, service shall be deemed
to
occur at 9 a.m. on the next following business day.
8.2 The
addresses and fax numbers of the parties hereto for the purpose of Section
8.1
are as follows:
OccuLogix
Address: 0000
Xxxxxxx Xxx., Xxxxxxxx
0, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxx,
Xxxxxx X0X 0X0
Fax: (000)
000-0000
For
the
attention of: Xxxxxx
X.
Xxxxxx
AMD
and Xxxxxx
Address: 0000
Xxxxxxx Xxx., Xxxxxxxx
0, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxx,
Xxxxxx X0X 0X0
Fax: (000)
000-0000
For the attention of: Xxxxxx
X.
Xxxxxx8.3 A
party
may notify the other party to this Agreement of a change to its or his name,
relevant addressee, address or fax number for the purposes of this Section
8.
9. MEDIATION
9.1 If,
at
any time during the currency of this Agreement or after the termination hereof,
any dispute, difference or question arises, or any failure to agree occurs,
among the parties hereto with respect to this Agreement, the parties hereto
agree that they will endeavour to settle any such dispute, difference or
question, or any such failure to agree, which they are unable to settle through
direct negotiations or through negotiations by their solicitors, by mediation
before resorting to arbitration as contemplated in Section 10.
9.2 Any
party
hereto may request mediation, and the parties hereto jointly shall select
a
mediator within fifteen days of such request. In the event that the parties
hereto neglect or refuse to select, or are unable to agree upon, a single
mediator, then any party to the dispute may apply to a judge of the Superior
Court of Justice in Toronto to appoint such single mediator. The parties
to the
dispute shall participate in good faith in a mediation and any related
negotiations for a period of 60 days following the date of appointment of
the
mediator in accordance with procedures adopted by the mediator. The parties
to
the dispute will bear the costs of the mediation equally or as otherwise
agreed
by them. All conduct, opinions and statements made in the course of the
mediation shall be kept confidential. No party to a mediation shall call
the
mediator as a witness for any purpose in any arbitration or judicial proceeding,
nor shall any party seek access to any documents prepared for, or delivered
to,
the mediator or any notes or records of the mediator in any arbitration or
judicial proceeding. Evidence that is otherwise admissible or discoverable
shall
not be rendered inadmissible or non-discoverable as a result of its presentation
or use in the mediation.
10. ARBITRATION
10.1 If
the
parties hereto fail to resolve by mediation any dispute, difference or question
with respect to this Agreement, or any failure to agree in connection therewith,
they shall refer such matter to a single arbitrator to be appointed by the
parties to the dispute within fifteen days of such failure. If the parties
to
the dispute neglect or refuse to appoint, or are unable to agree upon, an
arbitrator, then either party to the dispute may apply to a judge of the
Superior Court of Justice in Toronto to appoint such single arbitrator. The
arbitrator may grant injunctive or other relief in the arbitration proceeding.
The decision of the arbitrator shall be final, conclusive and binding on
the
parties to the arbitration. Judgment may be entered on the arbitrator’s decision
in any court of competent jurisdiction. The parties hereto agree that,
notwithstanding any provision of applicable law, they will not request, and
the
arbitrator shall have no authority to award, punitive or exemplary damages
against any party. In the event that the prevailing party in any arbitration
proceeding is AMD or Xxxxxx, the costs of the arbitration, including
administrative expenses and the fees of the arbitrator, counsel and expert
witnesses, shall be borne by OccuLogix on a substantial indemnity basis as
that
term is understood under the Rules of Civil Procedure. In the event that
the
prevailing party in any arbitration proceeding is OccuLogix, administrative
expenses and arbitrator’s fees shall be shared equally by the parties to the
dispute and each party to the arbitration shall be responsible for the fees
of
their respective counsel and expert witnesses. Any arbitration under this
Agreement shall be regarded as a reference under, and shall proceed in
accordance with, the provisions of the Arbitration
Act, 1991 (Ontario),
as such act may be amended from time to time.
11. INTERPRETATION
11.1 Entire
Agreement and Waiver.
This
Agreement constitutes the entire agreement among the parties hereto with
respect
to the subject matter hereof and supersedes all prior agreements, undertakings,
negotiations and discussions, whether written or oral, that may have taken
place
among the parties hereto with respect to the subject matter hereof. No
supplement, modification or waiver of this Agreement shall be binding unless
it
is executed in writing by the party hereto to be bound thereby. No waiver
of any
provision of this Agreement shall constitute, or be deemed to be, a waiver
of
any other provision of this Agreement, whether or not similar to the provision
being waived, nor shall any waiver constitute a continuing waiver, unless
otherwise expressly provided.
11.2 Headings.
The
headings in this Agreement are included solely for convenience of reference
and
shall not affect the construction or interpretation hereof.
11.3 Number
and Gender.
In this
Agreement, words importing the singular include the plural and vice versa.
Words
importing the masculine gender include the feminine and neuter
genders.
11.4 Governing
Law.
This
Agreement shall by governed by, and construed in accordance with, the laws
of
the Province of Ontario and the federal laws of Canada applicable
therein.
11.5 Invalidity
of Provisions.
Each of
the provisions contained in this Agreement is distinct and severable, and
a
declaration of invalidity or unenforceability of any provision or part thereof
by a court of competent jurisdiction shall not affect the validity or
enforceability of any other provision hereof.
11.6 Enurement.
This
Agreement shall enure to the benefit of, and be binding upon, the parties
hereto
and their respective heirs, administrators, executors, successors and permitted
assigns.
12. TIME
OF ESSENCE
Time
is
of the essence in this Agreement.
IN
WITNESS WHEREOF
the
parties hereto have executed this Agreement.
|
|
|||
|
By:
|
|||
|
Xxxxxx
X. Xxxxxx
President
and Chief Operating
Officer
|
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|
|
|||
|
AMD
MEDICAL SERVICES INC.
|
|||
|
By:
|
|||
|
Xxxxxx
X. Xxxxxx
President
|
|||
|
|
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|
Signature
of Witness
|
Xxxxxx
X. Xxxxxx
|
|
|
Name
of Witness (please
print)
|
