EXHIBIT 10.37
N O W T H E R E F O R E,
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In consideration of the premises and the mutual covenants contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. The Company shall pay Kuslima Shogen an amount equal to 15% of any gross
royalties which may be paid to the Company from any license(s) with respect to
the Company's principal product, ONCONASE(TM), or any other products derived
from amphibian source extract, produced either as a natural, synthesized, and/or
genetically engineered drug for which the Company owns or is a co-owner of the
Patent, or acquires such right in the future, for a period not to exceed the
life of the Patents. In the event the Company manufactures and markets the drugs
by itself, then the Company will pay Kuslima Shogen an amount equal to five
percent (5%) of gross sales from any products sold during the life of the
Patents.
2. This agreement does not amend the Employment Agreement between Kuslima Shogen
and the Company dated September 1, 1987, but rather is a separate supplemental
agreement between the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
ATTEST: ALFACELL CORPORATION
/s/ Xxxxx XxXxxxxx By: /s/ Xxxx X. Xxxx
WITNESS:
/s/ Xxx Xxxxxx /s/ Kuslima Shogen
NOW THEREFORE on this date April 16, 2001
In consideration of the premises and the mutual covenants contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree to amend the attached agreement
dated July 24, 1991 between Alfacell Corporation and Kuslima Shogen.
The Board of Directors and Kuslima Shogen have on several occasions discussed
amending and updating Alfacell and Shogen's royalty agreement dated July 24,
1991 to encompass the changing global healthcare market and to clarify the
original agreement for proper interpretation.
The spirit of the amended agreement is for Shogen to receive 15% of royalties
Alfacell is paid from any license(s) with respect to Alfacell's principal
product Onconase(R), or any other products derived from amphibian source
extract, produced either as a natural, synthesized, and/or genetically
engineered drug for which the company owns or is co-owner of the patent, for a
period not to exceed the life of the patents.
No royalties would be paid if Alfacell does not own or co-own patent rights. Any
product rights obtained by Alfacell that does not fit the above definition would
be royalty free with no payments to Shogen.
In the event Alfacell manufactures and markets the drugs by itself, then the
company will pay Kuslima Shogen an amount equal to five percent (5%) of the net
sales from any products sold during the life of the patents.
The spirit of the agreement also provides that there would be no
"double-dipping". That is Shogen would receive payment from license(s) or from
product sales but not both, unless Alfacell and a Licensee(s) both market the
licensed product.
Alfacell and Shogen agree to binding arbitration should a dispute arise. All
disputes arising under this Agreement will be resolved by arbitration conducted
in accordance with the International Commercial Arbitration Rules of the
American Arbitration Association. The place of arbitration will be New York,
N.Y. The arbitration panel will consist of three arbitrators, one arbitrator
appointed by the Board of Directors of Alfacell, one appointed by Shogen, and
the third arbitrator be appointed by the two arbitrators so appointed by the
Parties.
Clarification of Terms:
"Net Sales" means the amount of the gross invoiced sales of any product (only in
finished product form) charged by Alfacell Company, its affiliates and
sub-licensees, at arm's length to independent third parties, less deductions of
returns (including allowances actually given for spoiled damaged, out-dated,
rejected, returned product sold, withdrawals and recalls, rebates (price
reductions, rebates to social and welfare systems, chargebacks, government
mandated rebates and similar types of rebates e.g. P.P.R.S.,
Medicaid), volume (quantity) discounts, outward freights, postage charges,
transportation insurance, packaging materials for dispatch of goods, custom
duties, bad debts, discounts granted later than at the time of invoicing, cash
discounts, taxes (value added or sales taxes, government mandated exceptional
taxes and other taxes directly linked to the gross sales amount), as computed on
a product by product bases in Alfacell Company's sales statistics for the
countries concerned, using the internal foreign currency translation the
Alfacell's then current standard practices actually used on a consistent basis
preparing its audited financial statements.
"Royalties" are defined as payments received from independent parties for
licensed product sales falling under the definition of covered product sales in
this agreement.
In Witness Whereof, the parties hereto have executed this Agreement the day and
year first above written.
Attest: Alfacell Corporation
/s/ Xxxxxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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/s/ Kuslima Shogen
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