EXHIBIT 10.2
AGREEMENT
THIS AGREEMENT (the "AGREEMENT") made this 28th day of March, 2005 (the
"EFFECTIVE DATE") between OccuLogix(R), Inc. ("OCCULOGIX"), a corporation
incorporated under the laws of the State of Delaware, and Rheogenx(TM)
Biosciences Corporation (the "PURCHASER"), a corporation incorporated under the
laws of the State of Delaware.
WHEREAS OccuLogix wishes to sell the Products (as hereinafter defined) to
the Purchaser, and the Purchaser wishes to purchase the Products from OccuLogix,
under the terms provided herein.
AND WHEREAS OccuLogix and the Purchaser also desire to develop a joint
marketing relationship to promote the use of the RHEO System and the Purchaser's
mobile apheresis business and to provide for certain other business
arrangements.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties agree as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS. In this Agreement, the following terms shall have the
meanings set forth below, unless the context requires otherwise:
"ADVERSE PATIENT EVENT" means an "Unanticipated Adverse Device Effect"
that is reported or is reportable to the FDA under the Code of Federal
Regulations, Part 21 CFR 812, or any successor regulation, and any "Adverse
Event" that is reported or is reportable under the Medical Device Reporting
regulations as defined in the Code of Federal Regulations, Part 21 CFR 803, or
any successor regulation, in each case, whether or not such event is actually
reported to the FDA.
"AFFILIATE(S)" means, in respect of a Person (the "FIRST PERSON"), another
Person that, directly or indirectly: (i) controls the First Person, (ii) is
controlled by the First Person or (iii) is controlled by the same Person that
controls the First Person. In this definition, "control" means ownership of more
than 50% of another Person or the power to direct decisions of another Person,
including the power to direct management and policies of another Person whether
by reason of ownership, contract or otherwise.
"BUSINESS DAY" means a day, other than a Saturday, Sunday or statutory
holiday, when banks are generally open in the State of Florida for the
transaction of banking business.
"CHANGE OF CONTROL" means the occurrence of any of the following events:
(i) any Person acquires or becomes the beneficial owner of, or a combination of
Persons acquires or becomes the beneficial owner of, directly or indirectly,
more than 50% of the voting securities of the Purchaser, whether through the
acquisition of previously issued and outstanding voting securities, or of voting
securities that have not been previously issued, or any combination thereof, or
any other transaction having a similar effect; (ii) any resolution is passed or
any action or proceeding is taken with respect to the liquidation, dissolution
or winding-up of the Purchaser; (iii) the Purchaser merges with one or more
corporations other than a wholly-owned subsidiary, where a majority of the
Purchaser's stockholders immediately prior to such transaction do not hold a
majority of the issued and outstanding securities of the combined company, but
in any case this Change of Control provision shall not be applied to the
solicited merger of the Purchaser with HemaCare Corporation regardless of the
outcome of the ownership of the Purchaser's securities post-merger; (iv) the
Purchaser sells, leases or otherwise disposes of all or substantially all of its
assets and undertaking, whether pursuant to one or more transactions; or (v) the
Purchaser enters into any transaction or arrangement which would have the same
or similar effect as the transactions described in (ii), (iv) or (v).
"CONFIDENTIAL INFORMATION" of a party means any and all material and
information of a party or any of its Affiliates or licensors (in this
definition, the "DISCLOSING PARTY") which has or may come into the possession or
knowledge of the other party or any of its Affiliates (in this definition, the
"RECIPIENT PARTY") in connection with or as a result of entering into this
Agreement, including information concerning the Disclosing Party's past,
present, and future customers, suppliers, finances, affairs, technology and
business. For the purposes of this definition, "information" and "material"
includes know-how, data, patents, copyrights, trade secrets, processes,
techniques, programs, designs, designs obtained by reproducing or reverse-
engineering product, formulae, marketing, advertising, financial, commercial,
sales or programming materials, written materials, compositions, drawings,
proposals, notes, records, diagrams, computer programs, studies, work in
progress, visual demonstrations, ideas, concepts, and other data, in oral,
written, graphic, electronic or any other form or medium whatsoever, and shall
include all Intellectual Property Rights and any information identified by the
Disclosing Party as confidential, or which the Recipient Party should reasonably
know would constitute Confidential Information. Notwithstanding the foregoing,
"Confidential Information" does not include the following information:
(i) information which is publicly available when it is received by or
becomes known to the Recipient Party or which subsequently becomes
publicly available through no fault of the Recipient Party (but such
information will be considered Confidential Information until such
time as it becomes publicly available);
(ii) information which is already known to the Recipient Party at the
time of its disclosure to the Recipient Party by the Disclosing
Party and is not the subject of an obligation of confidence of any
kind;
(iii) information which is independently developed by the Recipient Party
without any use of or reference to the Confidential Information of
the Disclosing Party where such independent development can be
established by evidence that would be acceptable to a court of
competent jurisdiction; and
(iv) information which is received by the Recipient Party in good faith
from a third party whom the Recipient Party had no reason to believe
was not lawfully in possession of such information free of any
obligation of confidence of any kind, but only until the Recipient
Party subsequently comes to have reason to believe that such
information was subject to an obligation of confidence of any kind
when originally received.
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"FDA" means the United States Food and Drug Administration.
"FDA APPROVAL" means the approval of the FDA being sought by OccuLogix for
the RHEO System for use in treatment of non-exudative age-related macular
degeneration (the specific labeling of which treatment will be determined by the
FDA).
"FILTERS" means the filters described in Schedule 1 attached hereto, and
any new versions of such filters or improvements thereto, or replacement or
substitution filters, that OccuLogix, in its sole discretion, may from time to
time sell in the regular course of its business.
"GEOGRAPHIC AREA" means any Canadian or U.S. city, town or municipality,
and its surrounding area to an extent of a 50-mile radius thereabout, that is
specified in the Geographic Areas Schedule, attached hereto as Schedule 2, as it
may be amended from time to time by the parties hereto.
"INTELLECTUAL PROPERTY RIGHTS" means:
(a) any and all proprietary rights provided under (i) patent law, (ii)
copyright law, (iii) trademark law, (iv) design patent or industrial
design law, (v) semi-conductor chip or mask work law or (vi) any
other statutory provision or common law principle applicable to this
Agreement, including trade secret law, which may provide a right in
either ideas, formulae, algorithms, concepts, inventions,
documentation, Confidential Information or know-how generally, or
the expression or use of such ideas, formulae, algorithms, concepts,
inventions or know-how; and
(b) any and all applications, registrations, licenses, sub-licenses,
franchises, agreements, renewals or any other evidence of a right in
any of the foregoing.
"PATIENT INFORMATION" means all information, data and test results
collected by the Purchaser in connection with the use of the Products with
patients, provided that such information, data and test results will be provided
to OccuLogix in such form so that the patients will not be identified in
accordance with the standard of de-identification of protected health
information set forth in CFR ss. 164.514.
"PERSON" means an individual, corporation, partnership, limited liability
company, trust, business trust, association, joint stock company, joint venture,
pool, syndicate, sole proprietorship, unincorporated organization, governmental
authority or any other form of entity.
"PRODUCTS" means, together, the Pump, Tubing Sets and the Filters and any
new versions of such products or improvements thereto, or replacement or
substituted products, that OccuLogix, in its sole discretion, may from time to
time sell in the regular course of its business.
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"PUMP" means the OctoNova(R) Apheresis Machine described in Schedule 1
attached hereto and any new versions of such product or improvement thereto, or
replacement or substitution products, that OccuLogix, in its sole discretion,
may from time to time sell in the regular course of its business.
"RHEO SYSTEM" means the Products used to perform Rheopheresis and
consisting of a Pump and a disposable treatment set, containing the Filters and
Tubing Sets, through which the patient's blood circulates.
"RHEO THERAPY" means the performance of Rheopheresis using the RHEO
System.
"SECTION 510 APPROVAL" means approval of the FDA granted pursuant to
section 510(k) of the U.S. Food, Drug and Cosmetic Act.
"THIRD PARTY" shall mean any Person other than OccuLogix, the Purchaser
and their respective Affiliates.
"TUBING SETS" means the disposable tubing sets forming part of the RHEO
System.
1.2 EXTENDED MEANINGS. Unless the context requires otherwise, words
importing the singular include the plural and vice versa, and words importing
gender include all genders. The terms "including" and "include" shall mean
"including without limitation" and "include without limitation," respectively.
1.3 REFERENCES TO "OCCULOGIX" AND "PURCHASER". Unless the context requires
otherwise, in this Agreement, references to "OCCULOGIX" are references to
OccuLogix, Inc. and all of its Affiliates, and references to the "PURCHASER" are
references to Rheogenx Biosciences Corporation and PhereSys Therapeutics and all
of their respective Affiliates.
1.4 CURRENCY. Unless otherwise stated, all dollar amounts referred to in
this Agreement are in United States dollars.
1.5 LEGAL COUNSEL. The parties acknowledge that their respective legal
counsel have reviewed and participated in settling the terms of this Agreement
and that any rule of construction to the effect that any ambiguity is to be
resolved against the drafting party shall not be applicable in the
interpretation of this Agreement.
1.6 REMEDIES CUMULATIVE. Unless otherwise expressly stated herein, all
rights and remedies of either party under this Agreement are in addition to such
party's other rights and remedies and are cumulative, not alternative.
1.7 AGREEMENT AND SCHEDULE AMENDMENT AND SUPPLEMENT. Except as expressly
set out in this Agreement, this Agreement, including each Schedule to this
Agreement, may not be amended or supplemented except by mutual written agreement
of at least one authorized representative of each of the parties. Any such
agreement will expressly state that it is intended to amend or supplement, as
the case may be, this Agreement.
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1.8 SCHEDULES. This Agreement includes and incorporates the following
schedules:
Schedule 1 - Product List and Prices
Schedule 2 - Geographic Areas Schedule
ARTICLE 2
PRODUCTS AND PATIENT INFORMATION
2.1 PURCHASE. Upon submission of a purchase order by the Purchaser
("ORDER") and acknowledgment and acceptance of such Order by OccuLogix,
OccuLogix will sell, and the Purchaser will purchase, the Products at the prices
specified in Schedule 1 attached hereto, as such prices may be adjusted from
time to time pursuant to Section 2.7 hereof. Each such Order shall be in writing
in a form reasonably acceptable to OccuLogix and shall specify the quantity of
each of the Products ordered, the place of delivery and the requested delivery
date therefor, which shall not be less than 60 days after the date of such
Order. Until such time as the FDA Approval is granted, OccuLogix will have no
obligation to deliver any Products to the Purchaser at any location in the
United States. In the event of a conflict between the terms and conditions of
any Order and this Agreement, the terms and conditions of this Agreement shall
prevail, and any additional or different terms shall be of no force or effect.
2.2 RIGHT TO REJECT ORDERS. OccuLogix shall have the right to reject any
order placed by the Purchaser if the Purchaser is in breach of any of its
material obligations under this Agreement. The Purchaser's Order shall be deemed
accepted when it is acknowledged and accepted by OccuLogix in writing. Any Order
that OccuLogix fails to accept or reject within five business days of receipt of
such Order from Purchaser shall be deemed accepted. Subject to Section 2.3,
below, the Purchaser may not cancel any order after it is accepted by OccuLogix
without the written consent of OccuLogix. 2.3 DELIVERY SCHEDULE. OccuLogix shall
make commercially reasonable efforts to deliver the Products in accordance with
the delivery schedules set forth in the accepted Orders. However, if anything
beyond the control of OccuLogix prevents OccuLogix from completely filling
Orders accepted by OccuLogix in accordance with this Section 2.3, OccuLogix
shall immediately notify Purchaser of any such delay in writing and the expected
delivery date(s) for the unshipped portion of the Order. The Purchaser shall
have the right to cancel the unshipped portion of any Order for which OccuLogix
indicates an expected delivery date of more than 45 days after the original
delivery date requested by the Purchaser, provided that the Purchaser notifies
OccuLogix, within five business days of receipt of notice of delayed delivery,
of the Purchaser's intention to exercise of its right of cancellation under this
Section 2.3.
2.4 DELIVERY. All Products supplied under this Agreement shall be shipped
f.o.b. the place of manufacture to such location as designated by the Purchaser.
Title and risk of loss and damage to the Products purchased by the Purchaser
hereunder shall pass to the Purchaser upon receipt by delivery to the applicable
carrier.
2.5 PACKAGING. All Products supplied under this Agreement shall be
packaged in such manner as OccuLogix reasonably determines, in all cases
consistent with industry practice for the shipment of similar goods.
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2.6 INABILITY TO SUPPLY. OccuLogix shall not be liable for failure to
supply Products or for the late delivery of Products if (i) OccuLogix orders the
Products (or components thereof) from its supplier(s) and such supplier(s) fail
to deliver such Products or components thereof) or (ii) OccuLogix's supplier
terminates its agreements with OccuLogix for the supply of the Products (or
components thereof). In the event of the occurrence of (i) above, OccuLogix will
(i) use commercially reasonable efforts to notify the Purchaser as promptly as
practicable of the circumstances, (ii) discuss with the Purchaser ways in which
to remedy the circumstances and (iii) use commercially reasonably efforts to
supply the ordered Products as promptly as practicable thereafter.
2.7 MOST FAVOURED NATION. OccuLogix will not sell the Products to the
Purchaser at a price that is less favourable than OccuLogix's lowest list price
in effect at the time of submission of the Order. In the event that OccuLogix
sells Products to another customer at a price per unit (including any rebates,
incentives, offsets or other discounts) that is less than the price per unit
payable by the Purchaser pursuant to this Agreement, OccuLogix shall provide the
Purchaser with a credit for any excess amount charged to the Purchaser with
respect to any Products which were shipped to the Purchaser after the date on
which such lower price was offered to such other customer. In addition,
OccuLogix will use its best efforts to expedite processing of all accepted
orders from the Purchaser and shall make all commercially reasonable efforts to
prioritize the processing, shipment and delivery of the Purchaser's Orders. For
greater certainty, commercially reasonable efforts will not require OccuLogix to
fill any Orders submitted by the Purchaser before filling any orders of
OccuLogix's other customers which were submitted prior to the submission of the
Purchaser's Orders, but will require OccuLogix to fill any Orders submitted by
Purchaser before filling any orders of OccuLogix's other customers which were
submitted after the submission of the Purchaser's Orders.
2.8 PATIENT INFORMATION. The Purchaser will provide OccuLogix with copies
of such Patient Information as OccuLogix may reasonably request from time to
time. The parties agree that the Patient Information shall be collected and held
in accordance with applicable privacy legislation.
2.9 APPROVALS. OccuLogix agrees to seek Section 510 Approval for the Pump
for non-Rheopheresis therapies, at its own cost and expense.
2.10 NOTICE OF ADVERSE EFFECTS. OccuLogix shall provide notice to the
Purchaser promptly upon OccuLogix learning of any Adverse Patient Event that is
experienced by patients during use of any of the Products.
ARTICLE 3
MARKETING AND OTHER RELATIONSHIPS
3.1 JOINT MARKETING CAMPAIGN. OccuLogix and Purchaser shall cooperate in
connection with, and, as described below, devote such resources as are necessary
for, the preparation and implementation of a joint marketing campaign to promote
both the RHEO System and the Purchaser's mobile apheresis business, in all cases
subject to applicable law, including any necessary approvals from the FDA and
any labeling restrictions or follow-on requirements imposed thereby ("JOINT
MARKETING CAMPAIGN").
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The Joint Marketing Campaign shall include the following:
(a) Preparation of written materials and other media used in the joint
marketing to, and/or education of, healthcare institutions,
healthcare facilities, healthcare providers (collectively,
"HEALTHCARE MARKET"), healthcare recipients and others;
(b) The contribution of suitable resources, including personnel as
determined by the parties' representatives, as set forth below;
(c) Cost sharing for the preparation and production of marketing and
educational materials;
(d) Co-sponsorship of seminars, meetings, presentations and other
promotional and educational events;
(e) Co-promotion to the Healthcare Market, including healthcare
providers' facilities and practices, and at healthcare facilities
and institutions, as may be agreed upon by OccuLogix and the
Purchaser;
(f) Suitably positioned links on each party's websites to the other
party's websites, in each case with a brief description of the
relationship established by this Agreement, with such language to be
approved in advance by both parties;
(g) Coordination of any and all necessary joint activities with respect
to third party payors, insurance, billers and/or intermediaries; and
(h) All other activities and materials as agreed upon by the parties in
writing.
In order to develop and implement the Joint Marketing Campaign,
representativesof OccuLogix and the Purchaser shall meet within sixty (60) days
of the Effective Date to determine the resources necessary to proceed with the
development and implementation of the Joint Marketing Campaign, and to discuss
allocating such resources as they believe desirable to ensure a successful Joint
Marketing Campaign. Representatives of OccuLogix and the Purchaser shall
thereafter meet regularly to analyze the effectiveness of the Joint Marketing
Campaign and revise such Joint Marketing Campaign based on the then prevalent
market conditions and, among other things, changes in the Purchaser's service
offering and markets served. Notwithstanding any other provision of this
Agreement, neither party shall use any promotional material or advertising
relating in any manner to the other party, or the other party's business,
without such other party's written consent other than such materials as are
developed and produced jointly by the parties pursuant to this Article 3.
3.2 RHEOPHERESIS PREFERRED PROVIDER STATUS. Representatives of OccuLogix
shall provide information and marketing materials related to the Purchaser's
mobile apheresis business and other services to the Healthcare Market, including
to physicians and other healthcare providers, and to Persons who express
interest to, OccuLogix about the provision of RHEO Therapy to his or its
patients. Should any physician or other healthcare provider purchase, or express
an intention to purchase, Products or services offered by OccuLogix directly
from OccuLogix either for his or its own account or for the development of an
affiliated clinic which is offering or intends to offer Rheopheresis, OccuLogix
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shall have no further obligation to attempt to co-market the Purchaser's mobile
apheresis or other services to such physician or healthcare provider.
Furthermore, OccuLogix's obligations to co-market the Purchaser's mobile
apheresis services and other services hereunder are further limited to those
Geographic Areas in which the Purchaser has operations as identified in the then
current Geographic Areas Schedule, attached hereto as Schedule 2, or where the
Purchaser has notified OccuLogix that it is making bona fide preparations to
initiate operations in the Geographic Area within ninety (90) days of such
notification. This limitation on OccuLogix's co-marketing obligations will be
modified from time to time as the parties communicate regularly about the latest
developments in RHEO Therapy and the Purchaser's capabilities as it expands
nationally and based on updates to the Geographic Areas Schedule as provided
from time to time by the Purchaser and agreed to by OccuLogix, which agreement
shall not be unreasonably withheld. The information and marketing materials to
be distributed by OccuLogix shall be those materials as agreed to by the parties
pursuant to Section 3.1 and any other materials that are supplied to OccuLogix
by the Purchaser from time to time, provided that such other materials meet with
OccuLogix's approval, which approval may not be withheld unreasonably. The
Purchaser shall be responsible for all costs associated with the production and
delivery to OccuLogix of the materials not previously agreed upon by the parties
pursuant to Section 3.1.
3.3 THERAPEUTIC APHERESIS PREFERRED PROVIDER STATUS. OccuLogix agrees to
provide information and marketing materials related to the Purchaser's mobile
apheresis and other services to any customer and/or potential customer of
OccuLogix that expresses interest to OccuLogix in RHEO Therapy, including, in
particular, those interested in outsourcing contract mobile therapeutic
apheresis services; provided that the Purchaser is at such time providing
contract mobile therapeutic apheresis in the Geographic Area in which such
customer inquires about such services or where the Purchaser has notified
OccuLogix that it is making bona fide preparations to initiate operations within
90 days thereof. This limitation will be modified from time to time by updates
to the Geographic Areas Schedule, attached hereto as Schedule 2. The information
and marketing materials to be distributed by OccuLogix shall be those materials
as agreed to by the parties pursuant to Section 3.1 and any other materials that
are supplied to OccuLogix by the Purchaser from time to time, provided that such
other materials meet with OccuLogix's approval, which approval may not be
withheld unreasonably. The Purchaser shall be responsible for all costs
associated with the production and delivery to OccuLogix of the materials not
previously agreed upon by the parties pursuant to Section 3.1.
3.4 EXCLUSIVITY. The obligations and rights created by Sections 3.2 and
3.3 shall be exclusive with respect to each of the parties for a period of five
years commencing on the date of OccuLogix's first commercial sale of the RHEO
System in the United States; provided, however, that such provisions shall
become non-exclusive at the end of the twelve-month period commencing on the
Effective Date if, at such time, the Purchaser is not actively providing mobile
apheresis services in at least 15 states of the United States. At the end of the
aforementioned five-year exclusivity period, the parties will agree to extend
the exclusivity of the rights and obligations created by Sections 3.2 and 3.3 by
a period of one year (the "EXTENDED EXCLUSIVITY PERIOD"), provided that the
Purchaser was the single largest user of the Products in the immediately
preceding 12-month period, measured by dollar volume of sales of Products. On
each anniversary of the Extended Exclusivity Period, the parties will agree to
extend the exclusivity of the rights and obligations created by Section 3.2 and
3.3 by a period of one year, provided, always, that the Purchaser was the single
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largest user of the Products in the 12-month period immediately preceding such
anniversary, measured by dollar volume of sales of Products, until such time as
exclusivity of such rights and obligations is not extended by the parties by
reason of the fact that the Purchaser no longer enjoys the status of the single
largest user so measured.
3.5 ACCESS TO TRAINING. The Purchaser shall, at the request of OccuLogix,
provide to OccuLogix and its customers training relating to the procedural
elements of RHEO Therapy and/or Rheopheresis, including ongoing continuing
medical education and quality assurance training, at a cost equal to the fair
market value of such training, provided that such cost shall not be less than
the cost to the Purchaser of providing such training.
3.6 MANUFACTURERS' SPECIFICATIONS. OccuLogix shall provide to the
Purchaser in advance of shipment of any Products, a copy of any materials
published by the manufacturer regarding its specifications for each of such
Products, to the extent permitted by the manufacturer to be provided to the
Purchaser, and, if available sooner, as soon as such published materials are
available to OccuLogix.
ARTICLE 4
WARRANTY, LIMITATION OF LIABILITY AND INDEMNITY
4.1 WARRANTIES AND LIMITATIONS.
(a) OccuLogix warrants that at the time it delivers the Pumps to
Purchaser, and after any maintenance or repairs performed on the
Pumps by OccuLogix or its agents, that the Pumps will be in proper
working order in accordance with the manufacturer's specifications.
Except as set forth in the preceding sentence, OccuLogix makes no
warranties, express or implied with respect to the Pumps. All
products shall operate and perform in accordance with the
manufacturer's specifications as provided by OccuLogix to the
Purchaser. Other than as set forth herein, OccuLogix expressly
disclaims all representations, warranties, conditions and
obligations relating to the Products, whether written, oral,
statutory, implied, arising from a course of conduct or usage of
trade or otherwise, including any warranty of non-infringement and
any implied warranty of merchantable quality or fitness for a
particular purpose. The parties expressly disclaim the application
of the United Nations Convention on contracts for the international
sale of goods. At all times during the term of this Agreement while
the Purchaser is in possession of the Products, the Purchaser shall
have the benefits of any of OccuLogix's rights under applicable
manufacturer's warranties with respect to the Products, if any, and,
to the extent assignable, such warranties are hereby assigned during
the term of this Agreement by OccuLogix, including manufacturer's
one-year parts and labor warranty of the Pumps. OccuLogix shall
provide the Purchaser with copies of the manufacturer's warranties
for each of the Products that are ordered by Purchaser or that
Purchaser expresses an interest in ordering. The Purchaser shall
take all reasonable actions to enforce such warranties when
available but will not attempt to repair the Products during the
manufacturer's one-year warranty. OccuLogix covenants that it will
afford the Purchaser the benefit of any warranty on the Products, if
any, that it offers to any other purchaser.
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(b) OccuLogix does not represent or warrant the fitness of the Products
for any purpose (including any purpose expressly disclosed by the
Purchaser) nor does OccuLogix represent or warrant that the Products
will have or possess any particular quality or state, other than
conformity to the manufacturer's specifications.
(c) OccuLogix's liability to the Purchaser in relation to this Agreement
and the Products shall be limited, in all circumstances, to the
Purchaser's direct damages to a maximum amount equal to the payments
paid by the Purchaser to OccuLogix under this Agreement for the
Products that gave rise to the claim for damages. Without limiting
the generality of the foregoing, in no event shall OccuLogix have
any liability arising out of or otherwise relating to this Agreement
or the Products for: (i) damages arising out of or relating to any
results produced by the Products; or (ii) consequential, incidental,
special, collateral, punitive, exemplary or indirect damages
(including loss of goodwill, loss of profits or revenues, loss of
savings, loss of use, interruption of business, injury or death to
persons, damage to property and claims of patients or other users),
whether based on breach of contract (including fundamental breach),
tort (including negligence) or arising in equity, even if OccuLogix
has been advised of the possibility of such damages.
4.2 PURCHASER'S COVENANTS.
The Purchaser covenants the following:
(a) it will not resell or distribute the Products other than as
necessary for provision of apheresis services and the Purchaser's
mobile apheresis business, except with the prior written consent of
OccuLogix;
(b) it will, at its sole expense, diligently operate and/or use the
Products safely, at a high level of quality, and in accordance with
the specifications provided by OccuLogix to the Purchaser from time
to time;
(c) to the extent specified in any manufacturer's materials provided by
OccuLogix to the Purchaser prior to submission of an Order, it will
use the Products only at facilities that meet the manufacturer's
requirements, if any;
(d) it will, at its sole expense, store, operate and use the Products in
accordance with all applicable laws, rules, statutes, regulations,
orders, judgments, directives or similar requirements, including any
industry standards or other requirements relating to medical
devices;
(e) that without the prior written consent of OccuLogix which will not
be unreasonably withheld, it will not use, or cause to be used, any
of the Products in any off-label manner whatsoever or pursue, or in
any way be involved in, any clinical studies or other research
activities using or involving any of the Products, provided that
upon reasonable request by a physician or other health care
provider, OccuLogix shall not unreasonably withhold its
consideration to provide such consent;
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(f) it will, at its sole expense (other than covered maintenance and
warranty work), keep the Products in good repair, condition and
working order and will not remove any markings, labels or other
proprietary notices or do anything that would disparage or adversely
affect the reputation or goodwill of OccuLogix or its suppliers of
the Products;
(g) it will not make any alterations, additions or improvements to, or
in any way tamper with, the Products other than as approved in
advance by OccuLogix or the manufacturer;
(h) it will promptly notify OccuLogix, in writing, upon becoming aware
of any problems, complaints, Adverse Patient Events or claims
regarding the Products or the use of the Products;
(i) it acknowledges that as between the Purchaser and OccuLogix,
OccuLogix is the sole and exclusive owner of the entire right, title
and interest in and to the following registered and unregistered
trade-marks and trade names in Canada and the United States.: RHEO,
RHEOTHERAPY, RHEOPHERESIS, RHEO CLINIC, VASCULAR SCIENCES,
OCCULOGIX, OUR VISION IS YOUR VISION, RHEOGENX and any trade-marks
that are now used by, or registered in the name of, OccuLogix
(collectively, the "OCCULOGIX MARKS"), and the Purchaser covenants
to not use, or assert any rights in, the OccuLogix Marks or any
confusingly similar trade-marks or trade names, without the express
written permission of OccuLogix, Inc.
4.3 INDEMNITY.
(a) Subject to Section 4.1(c), OccuLogix shall indemnify, defend and
hold the Purchaser harmless, and hereby forever releases and
discharges the Purchaser, from and against all losses, liabilities,
damages and expenses (including reasonable attorneys' fees and
costs) resulting from all claims, demands, actions and other
proceedings by any Third Party to the extent arising from (a) the
breach of any representation, warranty or covenant of OccuLogix
under this Agreement or (b) the gross negligence or willful
misconduct of OccuLogix or any of its Affiliates in the performance
of its obligations, and its carrying on of permitted activities, or
the exercise of its rights, under this Agreement.
(b) The Purchaser shall indemnify, defend and hold OccuLogix harmless,
and hereby forever releases and discharges OccuLogix, from and
against all losses, liabilities, damages and expenses (including
reasonable attorneys' fees and costs) resulting from all claims,
demands, actions and other proceedings by any Third Party to the
extent arising from (a) the breach of any representation, warranty
or covenant of the Purchaser under this Agreement or (b) the gross
negligence or willful misconduct of the Purchaser or any of its
Affiliates in the performance of its obligations, and its carrying
on of permitted activities, or the exercise of its rights, under
this Agreement.
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(c) A party (the "Indemnitee") that intends to claim indemnification
under this Section 4.3 shall promptly notify the other party (the
"Indemnitor") of any claim, demand, action or other proceeding for
which the Indemnitee intends to claim such indemnification. The
Indemnitor shall have the right to participate in, and to the extent
the Indemnitor so desires jointly with any other indemnitor
similarly notified, to assume the defense thereof with counsel
selected by the Indemnitor; provided, however, that the Indemnitee
shall have the right to retain its own counsel, with the fees and
expenses to be paid by the Indemnitor, if representation of the
Indemnitee by the counsel retained by the Indemnitor would be
inappropriate due to actual or potential differing interests between
the Indemnitee and any other party represented by such counsel in
such proceedings. The indemnity obligations under this Section 4.3
shall not apply to amounts paid in settlement of any claim, demand,
action or other proceeding if such settlement is effected without
the prior express written consent of the Indemnitor, which consent
shall not be unreasonably withheld or delayed. The failure to
deliver notice to the Indemnitor within a reasonable time after
notice of any such claim or demand, or the commencement of any such
action or other proceeding, if prejudicial to its ability to defend
such claim, demand, action or other proceeding, shall relieve such
Indemnitor of any liability to the Indemnitee under this Section 4.3
with respect thereto, but the omission so to deliver notice to the
Indemnitor shall not relieve it of any liability that it may have to
the Indemnitee otherwise than under this Section 4.3. The Indemnitor
may not settle or otherwise consent to an adverse judgment in any
such claim, demand, action or other proceeding, that diminishes the
rights or interests of the Indemnitee without the prior express
written consent of the Indemnitee, which consent shall not be
unreasonably withheld or delayed. The Indemnitee shall reasonably
cooperate with the Indemnitor and its legal representatives in the
investigation of any claim, demand, action or other proceeding
covered by this Section 4.3 and shall cause its employees and agents
to do the same to the extent it is able.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1 EXISTENCE. Each party hereby represents and warrants to the other
party that such party is duly organized, validly existing and in good standing
under the laws of the state in which it is organized.
5.2 AUTHORIZATION AND ENFORCEMENT OF OBLIGATIONS. Each party hereby
represents and warrants to the other party that such party (a) has the power and
authority and the legal right to enter into this Agreement and to perform its
obligations hereunder and (b) has taken all necessary action on its part to
authorize the execution and delivery of this Agreement and the performance of
its obligations hereunder. This Agreement has been duly executed and delivered
on behalf of such party and constitutes a legal, valid, binding obligation,
enforceable against such party in accordance with its terms.
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ARTICLE 6
CONFIDENTIALITY
6.1 CONFIDENTIALITY COVENANT.
(a) Each party will at all times, both during the term of this Agreement
and thereafter, keep and hold all Confidential Information of the
other party in the strictest confidence and, without the other
party's prior written consent, will not use such Confidential
Information for any purpose, other than as may be reasonably
necessary for the performance of its duties pursuant to this
Agreement.
(b) Each party agrees:
(i) that it will not disclose to any Third Party or use any
Confidential Information disclosed to it by the other party
except as expressly permitted in this Agreement or disclosed
with other party's prior written consent; and
(ii) that it will take all reasonable measures to maintain the
confidentiality of all Confidential Information of the other
party in its possession or control, which will in no event be
less than the measures it uses to maintain the confidentiality
of its own information of similar importance.
(c) Notwithstanding the foregoing, each party may disclose Confidential
Information:
(i) to the extent any of the terms of this Agreement must be
disclosed pursuant to applicable securities laws;
(ii) to the extent required by a court of competent jurisdiction or
other governmental authority or otherwise as required by law;
provided the party notifies the other, and the other party has
the opportunity to prevent or limit such disclosure; or
(iii) on a "need-to-know" basis, under an obligation of
confidentiality by the recipient, to its Affiliates and to its
Affiliates' authorized agents, contractors, legal counsel,
accountants, banks and other financing sources and their
respective advisors.
(d) The terms and conditions of this Agreement will be deemed to be the
Confidential Information of each party and will not be disclosed
without the prior written consent of the other party, except to the
extent that OccuLogix and its Affiliates may use similar provisions
of the terms herein with other purchasers for similar purposes as
stated herein.
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6.2 RETURN OF CONFIDENTIAL INFORMATION. Upon the termination of this
Agreement, each party will return to the other all copies of any Confidential
Information of the other which is then in its possession or control, and will
remove all digital representations thereof in any form from all electronic
storage media in its possession or under its control, except that the Recipient
Party may retain a record of such Confidential Information in its files for the
sole purpose of identifying the specific Confidential Information in respect of
which it has ongoing obligations under this Agreement.
6.3 NON-SOLICITATION. OccuLogix and the Purchaser each agree that during
the term of this Agreement and for a period of two years after it is terminated,
that it will not directly or indirectly solicit for employment any employee,
consultant, advisor or other individual employed or engaged by the other or any
of its Affiliates during the term of this Agreement.
ARTICLE 7
TERM AND TERMINATION
7.1 TERM. This Agreement will commence on the Effective Date and, subject
to Sections 7.2, 7.3 and 7.4, will continue until March 31, 2008, provided that
this Agreement shall be automatically renewed for successive one-year terms if
the Purchaser is actively providing mobile apheresis services in at least 15
states in the United States on March 31, 2008 and on March 31 of each year
thereafter. Notwithstanding the foregoing, the provisions of this Agreement
providing for the supply of a particular Product shall terminate upon the
termination of any agreement OccuLogix has with the manufacturer or distributor
of such Product for the supply of such Product to OccuLogix. OccuLogix shall
notify Purchaser within thirty (30) days of becoming aware of any such
termination.
7.2 TERMINATION FOR CAUSE. Either party may terminate this Agreement upon
or after the breach of any material provision of this Agreement by the other
party, if the breaching party has not cured such breach within twenty 20
business days after notice thereof from the other party.
7.3 TERMINATION ON CHANGE OF CONTROL. OccuLogix shall have the right to
terminate this Agreement upon a Change of Control, exclusive of any merger
outcome with HemaCare Corporation.
7.4 TERMINATION ON CHANGE OF MANAGEMENT. OccuLogix shall have the right to
terminate this Agreement should Dr. Xxxxxxx Xxxxx, the Purchaser's current
Chairman and Chief Executive Officer be removed both (i) from a position on the
board of directors of Rheogenx Biosciences Corporation and (ii) as a member of
the senior management team of the Purchaser. , provided that such right to
terminate shall not be effective upon the death, disability or retirement of Dr.
Xxxxxxx Xxxxx unless such death, disability or retirement occurs within five
years from the Effective Date.
7.5 POST-TERMINATION ORDERS. OccuLogix's acceptance of any Order after the
expiration or termination of this Agreement shall not be construed as a renewal
or extension of this Agreement, or as a waiver of the right to terminate or of
any other matter of right.
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ARTICLE 8
GENERAL
8.1 NOTICES. Every notice provided for in this Agreement shall be written
and directed to the party to whom delivered or given and will be delivered or
given at:
If to OccuLogix, to:
0000 Xxxxxxx Xxxxxx, Xxxx 0,
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxx X0X 0X0
Attention: Chief Executive Officer
Fax: 000.000.0000
If to Purchaser, to:
Rheogenx Biosciences Corporation and/or
PhercSys Therapeutics Corporation
0000 Xxxxxxxxxx Xxxx., Xxxxx 000
Xx Xxxxxx Xxxx, XX 00000
Attention: President and Chief Executive Officer
Fax: 000.000.0000
Each such notice will be: (i) personally delivered or by courier; (ii) sent by
telex, telecopier or other direct written electronic means; or (iii) sent by
registered mail. Any notice sent by way of the means described in (i) above will
be deemed to have been given and received on the business day on which it has
been personally delivered provided that if such notice has not been delivered on
a business day, then it will be deemed to have been given and received on the
next business day thereafter. Any notice sent by way of the means described in
(ii) above will be deemed to have been given and received on the date on which
it was transmitted provided that if such notice has not been transmitted on a
business day or it was not transmitted prior to 5:00 p.m. (local time of the
intended recipient) on the business day that it was transmitted, then it will be
deemed to have been given and received on the next business day thereafter. Any
notice sent by the means described in (iii) above will be deemed to have been
given and received on the third business day following the date upon which it
has been mailed. If mail service is, or is threatened to be, interrupted at any
time when a notice is required to be given thereunder, then such notice will be
given by the means described in (i) or (ii) above. Each party may change its
address for the purposes of this Section 8.1 from time to time by giving written
notice of such change to the other party in accordance with this Section 8.1.
8.2 ENTIRE AGREEMENT. This Agreement, together with any Schedules attached
to this Agreement and any agreements and documents to be delivered pursuant to
the terms of this Agreement, constitutes the entire agreement between the
parties pertaining to the subject matter of this Agreement and supersedes all
prior agreements, understandings, negotiations and discussions, whether oral or
written, of any of the parties in respect of the subject matter hereof.
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8.3 INJUNCTIVE RELIEF. Each party acknowledges that its failure to comply
with the provisions of this Agreement may cause irreparable harm to the other
party which cannot be adequately compensated for in damages, and accordingly
acknowledges that the other party will be entitled to obtain, in addition to any
other remedies available to it, interlocutory and permanent injunctive relief to
restrain any anticipated, present or continuing breach of this Agreement.
8.4 WAIVER. A waiver of any default, breach or non-compliance under this
Agreement is not effective unless in writing and signed by the party to be bound
by the waiver. No waiver will be inferred from or implied by any failure to act
or delay in acting by a party in respect of any default, breach, non-observance
or by anything done or omitted to be done by another party. The waiver by a
party of any default, breach or non-compliance under this Agreement will not
operate as a waiver of that party's rights under this Agreement in respect of
any continuing or subsequent default, breach or non-compliance (whether of the
same or any other nature).
8.5 SEVERABILITY. Any provision of this Agreement which is invalid or
unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability and will be severed from
the balance of this Agreement, all without affecting the remaining provisions of
this Agreement or affecting the validity or enforceability of such provision in
any other jurisdiction and appropriate amendments will be made to this Agreement
to put the party who is disadvantaged by such invalidity or unenforceability in
the same financial position as if no provision hereof were invalid or
unenforceable. The parties agree to immediately negotiate in good faith a
replacement for any such provision in order to preserve the interests of the
parties to the extent permitted by law.
8.6 GOVERNING LAW. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York, without regard to the
conflicts of law principles thereof.
8.7 FORCE MAJEURE. Notwithstanding any provision herein to the contrary,
neither party shall be deemed to be in default hereunder for failing to provide
any of the Products or to perform other obligations to be performed pursuant to
this Agreement if such failure is the result of any labor dispute, act of God,
inability to obtain labor or materials, governmental restrictions or any other
event which is beyond such party's reasonable control. Such party will use
diligent efforts to remedy such failure or interruption. Neither party shall be
liable for injury to the other party's business or practice or for any loss of
income therefrom or for damage to the goods, wares or other property caused by
any such failure or interruption. The Purchaser shall have the right to cancel
any Order to the extent there is any delay in excess of sixty (60) days in the
delivery of such Order resulting from a force majeure event.
8.8 SUCCESSORS AND ASSIGNS. This Agreement will inure to the benefit of,
and will be binding on, the parties and their respective successors and
permitted assigns. Each of the Purchaser and OccuLogix may assign this Agreement
and its respective rights and obligations hereunder only to one of its
Affiliates or to a purchaser of, or to a successor by merger or reorganization
to, all or substantially all of its respective assets and not to any other
Person.
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8.9 RELATIONSHIP OF PARTIES. Each of the parties hereto are independent
contractors. Nothing herein will be construed to place the parties in a
relationship of principal and agent, partners or joint venturers, and neither
party will have the power to obligate or bind the other party in any manner
whatsoever.
8.10 COUNTERPART AND FACSIMILE. This Agreement may be executed in one or
more counterparts, each of which when so executed shall be deemed to be an
original and such counterparts together shall constitute one and the same
instrument. The signature of any of the parties hereto may be evidenced by a
facsimile copy of this Agreement bearing such signature. Such signature shall be
valid and binding as if an original executed copy of the Agreement has been
delivered.
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BY SIGNING BELOW, the parties agree to be bound by the terms of this
Agreement as of the date of this Agreement first above mentioned.
OCCULOGIX, INC.
By:
-----------------------------------
Name:
Title:
RHEOGENX BIOSCIENCES CORPORATION
By:
-----------------------------------
Name:
Title:
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SCHEDULE 1
PRODUCTS AND PRICES
OCTONOVA(R) APHERESIS MACHINE
The OctoNova apheresis machine is a microprocessor controlled state-of-the-art
blood and plasma therapy machine used in patients requiring numerous forms of
extracorporeal therapy and, in RHEO Therapy in particular, for the removal of
macromolecular plasma components in its performance of Rheopheresis.
The OctoNova(R) comes with a one year on-site full service warranty. Initial
installation, calibration and operator training will be provided by OccuLogix.
FILTERS
PLASMAFLO(R) [OP-05W(L)] PLASMA SEPARATOR
In plasma therapy, the Plasmaflo(R) Plasma Separator performs the key initial
function of separating the plasma from whole blood, and is used in conjunction
with a second column (the Rheofilter(R)) for purification of the separated
plasma, which may then be returned to the patient. It thus enables the efficient
removal of harmful substances, with simultaneous replenishment of clotting
factors.
RHEOFILTER(R) (AR-2000) PLASMA COMPONENT SEPARATOR
The Rheofilter(R) Plasma Component Separator is used as part of an
extracorporeal treatment system in combination with a plasma separator
(Plasmaflo(R)) for improvement in Rheological parameters, for treatment of
dysproteinemia due to abnormal plasma viscosity and for removal of high
molecular weight proteins which may influence disorders of the microcirculation.
TUBING SETS
Both Filters as above shall include their disposable tubing sets.
[NTD: INITIAL PRICING INFORMATION TO BE ADDED.]
SCHEDULE 2
GEOGRAPHIC AREAS SCHEDULE
[NTD: TO BE SETTLED.]
