EXHIBIT 10.11
SECOND AMENDMENT TO AGREEMENT
THIS SECOND AMENDMENT TO AGREEMENT (the "Amendment") relates to a
certain Agreement dated October 30, 1991 as amended by that certain First
Amendment to Agreement dated March 31, 1995 (such Agreement as so amended
thereby is hereinafter referred to as the "Agreement"), between ACORN
LABORATORIES, INC., a Florida corporation ("Acorn") and OCUREST LABORATORIES,
INC., a Florida corporation ("Ocurest")
1. Section 2.a)(i) of the Agreement is hereby amended in its entirely to read
as follows:
(i) $200,000 to be paid on or before February 28, 1996 (the "Initial
Payment"). Acorn hereby acknowledges and confirms that Ocurest has
heretofore paid $170,000 of the Initial Payment to Acorn and,
accordingly, the remaining obligation of Ocurest to Acorn with
respect thereto is $30,000.
2. Section 2.a)(iv) of the Agreement is hereby amended in its entirety to
read as follows:
(iv) In the event that Ocurest sells or transfers all or substantially
all of its business, which sale or transfer includes the licenses
granted to Ocurest pursuant to the Agreement, in connection with the
production and sale of the Eye Drop Products, other than through one
or more licenses, the greater of (a) $1,250,000 or (b) 10% of the
gross proceeds of such sale or transfer shall be paid or assigned by
Ocurest to Acorn. Notwithstanding anything to the contrary in
the Agreement as amended hereby or otherwise, upon such payment or
assignment, neither Ocurest, the purchaser nor the transferee, as the
case may be, shall have any further obligation to Acorn.
3. Section 5.a) of the Agreement is hereby amended to read as follows:
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5.a) The licenses granted hereunder shall terminate and/or Ocurest or
its successor or licensee, shall reassign the patent and trademark
properties to Acorn:
i) Prior to the payment to Acorn of an aggregate of $10,000,000
pursuant to the provisions of Section 2. hereof, upon the (a) filing
by Ocurest of a voluntary petition of bankruptcy; (b) filing
of an involuntary petition of bankruptcy against Ocurest provided
that such petition is not discharged within 45 days of the filing
thereof; (c) appointment of a receiver or a trustee for all or
substantially all of the assets for the benefit of its creditors.
ii) In the event that any payment due Acorn hereunder, other than (a)
the payment referred to in Section 2.a) (i) hereof and (b) the
Advances, are not paid within 120 days after any notice of
non-payment;
iii) In the event that any Advance is not paid within 45 days
subsequent to the giving of notice of any non-payment by Acorn;
iv) In the event that the payment referred to in Section 2.a) (i)
hereof is not paid on or before February 28, 1996; and
v) Upon the default by Ocurest or its successor or licensee in the
performance of any other material obligation under this Agreement and
such default is not cured within 120 days after notice of default or
not later than the and of such 120 day period Acorn has been paid an
aggregate of $10,000,000 pursuant to the provisions of Section 2.
hereof.
4. Simultaneously with the execution hereof, Xxxx Xxxxxxx shall deliver his
release to Acorn with respect to any claims in
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connection with that certain promissory note dated February 26, 1992 payable
to him by Acorn in the principal amount of $12,500. The form of such release
is attached hereto as an exhibit. The delivery of such release to Acorn shall
be deemed to constitute a payment by Ocurest to Acorn of $12,500 of the
Initial Payment.
5. Acorn hereby acknowledges the payment in full of all Advances payable on or
before November 30, 1995.
6. Acorn hereby waives and releases any rights it has or may have against
Ocurest prior to the execution of the Amendment (a) for any breaches or
alleged breaches of the Agreement or (b) to terminate the license granted
under the Agreement, or (c) to require Ocurest to turn over any materials
and products to Acorn.
7. Acorn hereby confirms and acknowledges that it is the intent of Acorn that
the licenses granted to Ocurest pursuant to the Agreement continue to remain
in full and effect and not be revoked or otherwise terminated or abridged
irrespective of any provision in the Agreement or otherwise. In order to
further assure the foregoing, upon the execution of this Amendment,
Acorn shall be deemed to have again granted such licenses to Ocurest as of
the date hereof.
8. Other than as expressly set forth herein, the Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the Amendment has been executed 29th day of January,
1996.
WITNESS: ACORN LABORATORIES, INC.
/s/ illegible By: /s/ illegible
-------------------------- --------------------------
President
WITNESS: OCUREST LABORATORIES, INC.
/s/ illegible
-------------------------- By: /s/ illegible
--------------------------
Executive Vice President
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