Exhibit 10.4
XXXXX XXXXXX XXXXXXX
LAWYERS
AMENDED AND RE-STATED
AGENCY AGREEMENT
GLYCOTEX, INC.
NOVOGEN LABORATORIES PTY LIMITED
ABN 42 002 489 947
Xxxxx 00
000 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
Telephone: x00 0 0000 0000
Fax: x00 0 0000 0000 REF: BLM SJH 02 1389 1453
(C) XXXXX XXXXXX XXXXXXX 2005
CONTENTS
1. INTERPRETATION 1
1.1 Definitions 1
1.2 Rules for interpreting this document 4
1.3 Business Days 5
2. APPOINTMENT OF AGENT 5
2.1 Appointment 5
2.2 Acceptance of appointment 5
3. AGENCY OBLIGATIONS 6
3.1 Negotiation of Clinical Trial Agreements 6
3.2 Execution of Clinical Trial Agreements 6
3.3 Performance of Clinical Trial Agreements 6
3.4 Appropriate personnel 6
3.5 Care, skill, etc. 6
3.6 Judgment 7
3.7 Assistance by Glycotex 7
4. FEES 7
4.1 Fees and disbursements 7
4.2 Invoices 7
4.3 Payment of invoices 7
4.4 Payments 7
4.5 Interest on overdue accounts 7
5. GOODS AND SERVICES TAX 8
5.1 GST Law definitions 8
5.2 GST payable in addition to other amounts 8
5.3 Tax invoice 8
5.4 Adjustments 9
5.5 GST where Glycotex supplies Novogen Laboratories 9
6. MATERIALS AND INTELLECTUAL PROPERTY RIGHTS 9
6.1 Materials and information 9
6.2 Intellectual Property Rights 9
7. CONFIDENTIAL INFORMATION 9
7.1 Confidentiality 9
7.2 Exceptions to obligations of confidentiality 10
7.3 Public domain 10
8. REPRESENTATIONS AND WARRANTIES 10
8.1 Warranties of each party 10
8.2 Reliance on representations and warranties 11
8.3 Exclusion of conditions and warranties 11
9. LIMITATION OF LIABILITY AND INDEMNITY 11
9.1 Indirect and consequential loss 11
9.2 Indemnity 11
10. FORCE MAJEURE 12
10.1 Notice and suspension of obligations 12
10.2 Effort to overcome 12
10.3 Termination 12
11. TERM AND TERMINATION 12
11.1 Term 12
11.2 Termination by Glycotex 12
11.3 Termination by Novogen Laboratories 13
11.4 Consequences of termination 13
11.5 Survival and accrued rights 13
12. DISPUTE RESOLUTION 14
12.1 Disputes 14
12.2 Notice of Dispute 14
12.3 Negotiation 14
12.4 Resolution of Dispute 14
12.5 Mediation 14
13. NOTICES 15
14. AMENDMENT AND ASSIGNMENT 15
14.1 Amendment 15
14.2 Assignment 15
15. GENERAL 15
15.1 Governing law 15
15.2 Liability for expenses 15
15.3 Relationship of the parties 16
15.4 Giving effect to this document 16
15.5 Waiver of rights 16
15.6 Operation of this document 16
15.7 Exclusion of contrary legislation 16
15.8 Counterparts 17
ii.
AMENDED AND RE-STATED AGENCY AGREEMENT
DATE SEPTEMBER 2005
PARTIES
GLYCOTEX, INC., a company incorporated under the laws of Delaware, United
States of America, c/- 0 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxxxxxx
00000, XXX (GLYCOTEX)
NOVOGEN LABORATORIES PTY LTD ABN 42 002 489 947 (NOVOGEN LABORATORIES)
RECITALS
A. Glycotex has a worldwide exclusive licence to exploit certain Intellectual
Property Rights relating to Glucan Products.
B. Novogen Laboratories has expertise and experience in the arrangement and
negotiation of agreements for the conduct of clinical trials of
pharmaceutical products in Australia and the conduct of such clinical
trials.
C. Glycotex appointed Novogen Laboratories as its agent to negotiate and enter
into Clinical Trial Agreements on the terms and conditions of an Agency
Agreement dated 30 April 2003.
D. The parties now amend and re-state the Agency Agreement in accordance with
this document.
OPERATIVE PROVISIONS
1. INTERPRETATION
1.1 DEFINITIONS
The following definitions apply in this document.
BUSINESS DAY means a day that is not a Saturday, Sunday or public holiday
in Sydney, Australia.
CHANGE IN CONTROL, in relation to Glycotex means:
(a) the acquisition by any Person or Group other than Novogen Limited of
more than 50% of the combined voting power of the then outstanding
securities entitled to vote generally in the election of directors of
Glycotex; or
(b) any merger, consolidation, reorganization, recapitalization, tender or
exchange offer or any other transaction with or effecting Glycotex as
a result of which a Person or Group other than the stockholders of
Glycotex immediately before the transaction owns after the transaction
more than 50% of the combined voting power of the then outstanding
securities entitled to vote generally in the election of the directors
of Glycotex,
but does not include any acquisition as a result of, or transaction
involving, an initial public offering of Glycotex's common stock.
CLINICAL TRIAL means a clinical evaluation of the stability, tolerability,
synergy or efficacy of a Glucan Product in the Field.
CLINICAL TRIAL AGREEMENTS means agreements for the conduct of Clinical
Trials with:
(a) Royal North Shore Hospital;
(b) Blacktown Hospital; and
(c) Xxxxxxxxxx Hospital,
and such other parties as Glycotex notifies Novogen Laboratories from time
to time during the Term.
COMMENCEMENT DATE means the date this document is executed by the last of
the parties to execute it.
CONFIDENTIAL INFORMATION means:
(a) all Know How relating to Glucan Products and Clinical Trials;
(b) all Know How created in the course of or as a result of Clinical
Trials;
(c) all written or oral information disclosed by Glycotex to Novogen
Laboratories under this document; and
(d) all written or oral information coming to the knowledge of Novogen
Laboratories in the performance of its obligations as agent under this
document,
other than information which Novogen Laboratories can establish:
(e) was in the public domain when it was given to Novogen Laboratories;
(f) becomes, after being given to Novogen Laboratories, part of the public
domain, except through disclosure contrary to this document; or
(g) was lawfully received by Novogen Laboratories from another person
having the unrestricted legal right to disclose that information
without requiring the maintenance of confidentiality.
CORPORATIONS ACT means the Corporations Xxx 0000 (Cth).
DEFAULT RATE means, in relation to an amount which has not been paid to a
party, a rate equal to the sum of that party's cost of funding the amount
(if that party were to borrow that amount and as determined conclusively by
that party) and 2% per annum.
DISPUTE has the meaning given to that term in clause 12.1.
2.
DISPUTE NOTICE has the meaning given to that term in clause 12.2.
FIELD means the fields of:
(a) therapeutic treatment of skin ulceration (including pressure sores,
bed sores, venous ulcers, diabetic ulcers and xxxxx) in humans;
(b) treatment of bone fracture and the enhancement of fixation of
implanted orthopaedic devices (including pins, screws and artificial
joints) in humans;
(c) prevention/treatment of ultraviolet light induced skin damage in
humans;
(d) treatment of injured connective tissues (including injuries to tendons
and ligaments, such as sporting injuries, inflammation and surgical
injury) in humans;
(e) joint repair (particularly with artificial joints) in humans; and
(f) treatment of poorly healing surgically dissected or transected tissue
in humans.
GLUCAN PRODUCT means any product or formulation containing
(beta)-(1,3)(1,6) glucan for use in the Field.
GOVERNMENT AGENCY means:
(a) a government or government department or other body;
(b) a governmental, semi-governmental or judicial person; or
(c) a person (whether autonomous or not) who is charged with the
administration of a law.
GROUP means two or more Persons acting as a partnership, limited
partnership, syndicate, or other group for the purpose of acquiring,
holding, or disposing of any securities.
GST means:
(a) the same as in the GST Law; and
(b) any other goods and services tax, or any tax applying to this
transaction in a similar way; and
(c) any additional tax, penalty tax, fine, interest or other charge under
a law for such a tax.
GST LAW means the same as "GST law" means in A New Tax System (Goods and
Services Tax) Xxx 0000 (Cth).
INSOLVENCY EVENT means, for a person, being in liquidation or provisional
liquidation or under administration, having a controller or analogous
person appointed to it or any of its property, being taken to have failed
to comply with a statutory demand, being unable to pay its debts or
otherwise insolvent, dying, ceasing to be of full legal capacity or
otherwise
3.
becoming incapable of managing its own affairs for any reason, taking any
step that could result in the person becoming an insolvent under
administration, entering into a compromise or arrangement with, or
assignment for the benefit of, any of its members or creditors, or any
analogous event.
INTELLECTUAL PROPERTY RIGHTS means any and all existing and future
intellectual and industrial property rights throughout the world, whether
conferred by statute, common law or equity, including rights in relation to
copyright, trade marks, designs, circuit layouts, plant varieties, business
and domain names, trade secrets and Know How (including the right to apply
for registration of any such rights), Patent Rights and other results of
intellectual activity in the industrial, commercial, scientific, literary
or artistic fields.
KNOW HOW means technical and other information which is not in the public
domain including inventions, discoveries, concepts, data, formulae, ideas,
specifications, procedures for experiments and tests, results of
experimentation and testing, results of research and development and
information in laboratory records, data collected during the course of
clinical trials, case reports, data analyses and summaries and submissions
to and information from ethics committees and regulatory authorities.
PATENT RIGHTS means existing and future patents (including any divisions,
continuations, continuations in part, renewals, reissues, extensions,
supplementary protection certificates, utility models and foreign
equivalents thereof) and rights with respect to existing and future patent
applications and patentable inventions, including the right to apply for
registration of any such rights.
PERSON means a natural person, company, government, or political
subdivision, agency, or instrumentality of a government.
TERM means the term of this document as determined under clause 11.
1.2 RULES FOR INTERPRETING THIS DOCUMENT
Headings are for convenience only, and do not affect interpretation. The
following rules also apply in interpreting this document, except where the
context makes it clear that a rule is not intended to apply.
(a) A reference to:
(i) legislation (including subordinate legislation) is to that
legislation as amended, re-enacted or replaced, and includes any
subordinate legislation issued under it;
(ii) a document or agreement, or a provision of a document or
agreement, is to that document, agreement or provision as
amended, supplemented, replaced or novated;
(iii) a party to this document or to any other document or agreement
includes a permitted substitute or a permitted assign of that
party;
4.
(iv) a person includes any type of entity or body of persons, whether
or not it is incorporated or has a separate legal identity, and
any executor, administrator or successor in law of the person;
and
(v) anything (including a right, obligation or concept) includes each
part of it.
(b) A singular word includes the plural, and vice versa.
(c) A word which suggests one gender includes the other genders.
(d) If a word is defined, another part of speech has a corresponding
meaning.
(e) If an example is given of anything (including a right, obligation or
concept), such as by saying it includes something else, the example
does not limit the scope of that thing.
(f) The word AGREEMENT includes an undertaking or other binding
arrangement or understanding, whether or not in writing.
(g) The words SUBSIDIARY, HOLDING COMPANY and RELATED BODY CORPORATE have
the same meanings as in the Corporations Act.
1.3 BUSINESS DAYS
If the day on or by which a person must do something under this document is
not a Business Day:
(a) if the act involves a payment that is due on demand, the person must
do it on or by the next Business Day; and
(b) in any other case, the person must do it on or by the previous
Business Day.
2. APPOINTMENT OF AGENT
2.1 APPOINTMENT
Glycotex appoints Novogen Laboratories as its agent to:
(a) arrange and negotiate Clinical Trial Agreements;
(b) enter into Clinical Trial Agreements on reasonable commercial terms;
and
(c) perform Glycotex's obligations under Clinical Trial Agreements.
2.2 ACCEPTANCE OF APPOINTMENT
Novogen Laboratories accepts its appointment under clause 2.1 on the terms
and conditions of this document.
5.
3. AGENCY OBLIGATIONS
3.1 NEGOTIATION OF CLINICAL TRIAL AGREEMENTS
Novogen Laboratories must:
(a) use all reasonable endeavours to negotiate Clinical Trial Agreements
on the most favourable commercial terms available;
(b) keep Glycotex regularly informed of the status and progress of the
negotiation of Clinical Trial Agreements;
(c) comply with Glycotex's reasonable directions in the negotiation of
Clinical Trial Agreements; and
(d) enter into Clinical Trial Agreements as agent for Glycotex on
Glycotex's written direction.
3.2 EXECUTION OF CLINICAL TRIAL AGREEMENTS
Novogen Laboratories must not enter into any Clinical Trial Agreement or
commit Glycotex to any obligation under any Clinical Trial Agreement
without Glycotex's prior written consent.
3.3 PERFORMANCE OF CLINICAL TRIAL AGREEMENTS
Novogen Laboratories must:
(a) perform the obligations of Glycotex under any Clinical Trial
Agreements as agent for Glycotex;
(b) not cause Glycotex to breach any obligation under any Clinical Trial
Agreements; and
(c) keep Glycotex regularly informed of the performance of Clinical Trial
Agreements and the status and progress of all Clinical Trials.
3.4 APPROPRIATE PERSONNEL
Novogen Laboratories shall ensure that its employees, agents and
consultants have appropriate qualifications and experience to perform its
obligations under this document, having regard to the nature of those
obligations.
3.5 CARE, SKILL, ETC.
Novogen Laboratories shall perform its obligations under this document:
(a) diligently, competently and with reasonable care and skill; and
(b) in compliance with all applicable laws and regulations.
6.
3.6 JUDGMENT
Nothing in this clause 3 prevents Novogen Laboratories from exercising its
judgment and utilising its skills as it considers most appropriate to
perform its obligations as agent under this document.
3.7 ASSISTANCE BY GLYCOTEX
Glycotex must give Novogen Laboratories such assistance as Novogen
Laboratories reasonably requests in order to perform its obligations as
agent under this document.
4. FEES
4.1 FEES AND DISBURSEMENTS
Glycotex must pay to Novogen Laboratories, in accordance with clause 4.3:
(a) all amounts paid by Novogen Laboratories on behalf of Glycotex under
or pursuant to any Clinical Trial Agreements;
(b) all reasonable out of pocket expenses (including travel and
accommodation expenses) incurred by Novogen Laboratories each month in
the course of performance of:
(i) its obligations under this document; and
(ii) Glycotex's obligations under Clinical Trial Agreements; and
(c) an agency fee of 2% of the total of the amounts in clauses 4.1(a) and
(b).
4.2 INVOICES
Within 7 days of the end of each month, Novogen Laboratories shall render
to Glycotex a written invoice for payment of the amounts payable under
clause 4.1 in that month.
4.3 PAYMENT OF INVOICES
Glycotex shall pay the amount of all correctly rendered invoices within 7
days of the date of the invoice.
4.4 PAYMENTS
All amounts due and payable under clause 4.3 must be calculated and paid in
United States dollars and must be paid by bank cheque or electronic
transfer to an account notified by Novogen Laboratories in writing.
4.5 INTEREST ON OVERDUE ACCOUNTS
Interest shall accrue at the Default Rate on the outstanding balance of all
overdue amounts payable under clause 4.3, calculated daily.
7.
5. GOODS AND SERVICES TAX
5.1 GST LAW DEFINITIONS
Words defined in the GST Law have the same meaning in this clause 5 unless
the context makes it clear that a different meaning is intended.
5.2 GST PAYABLE IN ADDITION TO OTHER AMOUNTS
In addition to paying all amounts payable by Glycotex under this document,
Glycotex must:
(a) pay to Novogen Laboratories an amount equal to any GST payable on any
supply by Novogen Laboratories under or in connection with this
document without deduction or set-off of any other amount;
(b) make that payment:
(i) if Novogen Laboratories must pay GST on or after receiving the
consideration or any part of it - as and when Glycotex must pay
or provide the consideration or that part of it;
(ii) if Novogen Laboratories must pay GST on issuing an invoice under
this document - on the earlier of the due date for payment of
that invoice, or 10 Business Days following the end of the month
in which Novogen Laboratories issued that invoice; and
(iii) if Novogen Laboratories must pay GST upon the occurrence of some
other event - within 5 Business Days of a written request by
Novogen Laboratories for payment for the GST, which may be in the
form of a tax invoice (or an adjustment note); and
(c) indemnify Novogen Laboratories against, and pay Novogen Laboratories
on demand the amount of:
(i) all GST on the transactions contemplated by this document; and
(ii) any loss, liability or expense directly or indirectly incurred in
connection with or arising from or caused by any failure by
Glycotex to pay any amount as and when required by this clause 5
for example, any additional tax, penalty tax, fine, interest or
other charge under a GST Law.
5.3 TAX INVOICE
Within 28 days of a written request from Glycotex, Novogen Laboratories
must issue a tax invoice (or an adjustment note) to Glycotex for any supply
for which Novogen Laboratories may recover GST from Glycotex under this
document, and must include in the tax invoice (or adjustment note) the
particulars required by the GST Law for Glycotex to obtain an input tax
credit for that GST.
8.
5.4 ADJUSTMENTS
Novogen Laboratories must refund to Glycotex any overpayment by Glycotex
for GST, but Novogen Laboratories need not refund to Glycotex any amount
for GST paid to the Commissioner of Taxation unless Novogen Laboratories
has received a refund or credit of that amount.
5.5 GST WHERE GLYCOTEX SUPPLIES NOVOGEN LABORATORIES
If Glycotex must pay GST for anything provided or supplied by Glycotex
under this document, Novogen Laboratories must pay to Glycotex an amount
equal to that GST in exactly the same way as Glycotex must so do for any
GST Novogen Laboratories must pay, and this clause 5 applies to that GST as
if Glycotex was Novogen Laboratories, and Novogen Laboratories was
Glycotex.
6. MATERIALS AND INTELLECTUAL PROPERTY RIGHTS
6.1 MATERIALS AND INFORMATION
Novogen Laboratories acknowledges that all materials, Know How and other
information made available by Glycotex to Novogen Laboratories in the
performance of the parties' obligations under this document remain the
property of Glycotex.
6.2 INTELLECTUAL PROPERTY RIGHTS
As between Glycotex and Novogen Laboratories, all Intellectual Property
Rights created or developed by or on behalf of Novogen Laboratories in the
performance of:
(a) its obligations under this document; and
(b) Glycotex's obligations under Clinical Trial Agreements,
vest exclusively in Glycotex immediately upon their creation, and by this
document Novogen Laboratories assigns to Glycotex absolutely and as
beneficial owner its entire right and title to and interest in all such
Intellectual Property Rights.
7. CONFIDENTIAL INFORMATION
7.1 CONFIDENTIALITY
Novogen Laboratories shall:
(a) keep and maintain all Confidential Information strictly confidential;
(b) use Confidential Information only for the purposes for which it is
disclosed; and
(c) not disclose Confidential Information other than to its employees,
authorised sub-contractors, legal advisers, auditors or other
consultants requiring the information for the purposes of this
document and then only upon those persons undertaking in writing to
keep that information strictly confidential.
9.
7.2 EXCEPTIONS TO OBLIGATIONS OF CONFIDENTIALITY
The obligations in clauses 7.1 do not apply to the extent that Novogen
Laboratories is required by law to disclose the Confidential Information,
provided that it promptly gives notice to Glycotex of that requirement and
discloses only that part of the Confidential Information which it is
legally required to disclose.
7.3 PUBLIC DOMAIN
No Confidential Information shall be deemed to be in the public domain
merely because it contains information which is in the public domain or is
embraced by a general disclosure which is in the public domain.
8. REPRESENTATIONS AND WARRANTIES
8.1 WARRANTIES OF EACH PARTY
Each party represents and warrants that:
(a) (POWER) it has full legal capacity and power to:
(i) own its property and to carry on its business; and
(ii) enter into this document and to carry out the transactions that
this document contemplates;
(b) (CORPORATE AUTHORITY) it has taken all corporate action that is
necessary or desirable to authorise its entry into this document and
its carrying out the transactions that this document contemplates;
(c) (DOCUMENTS EFFECTIVE) this document constitutes its legal, valid and
binding obligations, enforceable against it in accordance with its
terms (except to the extent limited by equitable principles and laws
affecting creditors' rights generally), subject to any necessary
stamping or registration;
(d) (NO CONTRAVENTION) neither its execution of this document nor the
carrying out by it of the transactions that this document
contemplates, does or will:
(i) contravene any law to which it or any of its property is subject
or any order of any Government Agency that is binding on it or
any of its property;
(ii) contravene any undertaking or instrument binding on it or any of
its property;
(iii) contravene its constitution; or
(iv) require it to make any payment or delivery in respect of any
financial indebtedness before it would otherwise be obliged to do
so; and
(e) (NO TRUST) it is not entering into this document as trustee of any
trust or settlement.
10.
8.2 RELIANCE ON REPRESENTATIONS AND WARRANTIES
Each party acknowledges that the other party has executed this document and
agreed to take part in the transactions that this document contemplates in
reliance on the representations and warranties that are made in this clause
8.
8.3 EXCLUSION OF CONDITIONS AND WARRANTIES
Except for the warranties expressly made in this document, all conditions,
warranties, undertakings or representations express or implied arising by
statute, general law or otherwise are expressly excluded to the extent
permitted by law.
9. LIMITATION OF LIABILITY AND INDEMNITY
9.1 INDIRECT AND CONSEQUENTIAL LOSS
Despite any other provision of this document, and to the extent permitted
by law, in no circumstances is Novogen Laboratories liable in contract,
tort (including negligence or breach of statutory duty) or otherwise, and
whatever the cause, to compensate Glycotex for:
(a) any increased costs or expenses;
(b) any economic loss, loss of profit, revenue, business, contracts or
anticipated savings; or
(c) any other special, indirect or consequential loss or damage of any
nature.
9.2 INDEMNITY
Glycotex must indemnify and keep indemnified Novogen Laboratories, its
directors, employees and agents against all damages, costs or expenses
(including legal costs and expenses on an indemnity basis) in respect of
any claims, demands, actions, proceedings or prosecution which may be
brought or commenced as a result of or in relation to:
(a) any breach of any Clinical Trial Agreement; or
(b) any personal injury to or death of any person:
(i) enrolled in a Clinical Trial;
(ii) arising out of or relating to the administration of a Glucan
Product; or
(iii) arising out of or relating to any clinical intervention or
procedure during or as a result of a Clinical Trial;
(c) the sale, distribution or other commercialisation or exploitation of
Glucan Products; or
(d) any packaging, marketing, advertisement or promotion of Glucan
Products.
11.
10. FORCE MAJEURE
10.1 NOTICE AND SUSPENSION OF OBLIGATIONS
If a party to this document is affected, or likely to be affected, by a
Force Majeure Event:
(a) that party must immediately give the other prompt notice of that fact
including:
(i) full particulars of the Force Majeure Event;
(ii) an estimate of its likely duration;
(iii) the obligations affected by it and the extent of its effect on
those obligations; and
(iv) the steps taken to rectify it; and
(b) the obligations under this document of the party giving the notice are
suspended to the extent to which they are affected by the relevant
Force Majeure Event as long as the Force Majeure Event continues.
10.2 EFFORT TO OVERCOME
A party claiming a Force Majeure Event must use its best endeavours to
remove, overcome or minimise the effects of that Force Majeure Event as
quickly as possible. However, this does not require a party to settle any
industrial dispute in any way it does not want to.
10.3 TERMINATION
If a Force Majeure Event continues for more than 3 months, any party may
terminate this document by giving at least 10 Business Days notice to the
other party.
11. TERM AND TERMINATION
11.1 TERM
The rights and obligations of the parties under this document begin on the
Commencement Date and continue until this document is terminated in
accordance with this clause 11.
11.2 TERMINATION BY GLYCOTEX
Glycotex may terminate this document at any time:
(a) on three month's written notice to Novogen Laboratories;
(b) immediately if Novogen Laboratories defaults in the performance of any
of its obligations under this document which in Glycotex's reasonable
opinion is capable of remedy and fails to remedy that default within
21 days of receiving written notice from Glycotex specifying the
default and requiring the default to be remedied;
12.
(c) on 21 days written notice if Novogen Laboratories defaults in the
performance of any of its material obligations under this document
which in Glycotex's reasonable opinion is not capable of remedy; and
(d) immediately by notice in writing if:
(i) Novogen Laboratories is involved in an Insolvency Event; or
(ii) Novogen Laboratories ceases for any reason to be able lawfully to
carry out all the transactions which this document contemplates
may be carried out by Novogen Laboratories.
11.3 TERMINATION BY NOVOGEN LABORATORIES
Novogen Laboratories may terminate this document at any time:
(a) immediately if Glycotex defaults in the performance of any of its
obligations under this document which in Novogen Laboratories'
reasonable opinion is capable of remedy and fails to remedy that
default within 21 days of receiving written notice from Novogen
Laboratories specifying the default and requiring the default to be
remedied;
(b) on 21 days written notice if Glycotex defaults in the performance of
any of its material obligations under this document which in Novogen
Laboratories' reasonable opinion is not capable of remedy; and
(c) immediately by notice in writing if:
(i) there is a Change in Control of Glycotex without Novogen
Laboratories' written consent;
(ii) Glycotex is involved in an Insolvency Event; or
(iii) Glycotex ceases for any reason to be able lawfully to carry out
all the transactions which this document contemplates may be
carried out by Glycotex.
11.4 CONSEQUENCES OF TERMINATION
Upon expiration or termination of this document for any reason Novogen
Laboratories must deliver to Glycotex or destroy at Glycotex's election,
all Confidential Information in Novogen Laboratories' possession, custody
or power.
11.5 SURVIVAL AND ACCRUED RIGHTS
Upon termination under this clause 11, this document is at an end as to its
future operation except for:
(a) the enforcement of any right or claim which arises on or has arisen
before termination; and
13.
(b) the obligations of the parties under clauses 1, 6, 7, 9, 12, 13, 14,
15 (except clause 15.4) and this clause 11, which survive termination.
12. DISPUTE RESOLUTION
12.1 DISPUTES
If a dispute arises out of or in relation to this document (including any
dispute as to breach or termination of the document or as to any claim in
tort, in equity or pursuant to any statute) (a DISPUTE), a party to this
document may not commence any court or arbitration proceedings relating to
the Dispute unless it has complied with this clause 12 except where the
party seeks urgent interlocutory relief.
12.2 NOTICE OF DISPUTE
A party to this document claiming that a Dispute has arisen under or in
relation to this document must give written notice to the other party
specifying the nature of the Dispute (a DISPUTE NOTICE).
12.3 NEGOTIATION
Upon receipt by a party of a Dispute Notice, Novogen Laboratories and
Glycotex must procure that their respective Managing Directors meet to
endeavour to resolve the Dispute expeditiously by negotiation.
12.4 RESOLUTION OF DISPUTE
If the parties have not resolved the Dispute under clause 12.3 within 14
days of receipt of a Dispute Notice, the parties must endeavour to resolve
the Dispute expeditiously using informal dispute resolution techniques such
as mediation, expert evaluation or determination or similar techniques
agreed by the parties.
12.5 MEDIATION
If the parties do not agree within 28 days of receipt of a Dispute Notice
(or such further period as the parties agree in writing) as to:
(a) the dispute resolution technique and procedures to be adopted;
(b) the timetable for all steps in those procedures; and
(c) the selection and compensation of the independent person required for
such technique,
the parties must mediate the Dispute in accordance with the Mediation Rules
of the Law Society of New South Wales, and the President of the Law Society
of New South Wales (or the President's nominee) will select the mediator
and determine the mediator's remuneration.
14.
13. NOTICES
(a) A notice, consent or other communication under this document is only
effective if it is in writing, signed and either left at the
addressee's address or sent to the addressee by mail or fax. If it is
sent by mail, it is taken to have been received 3 working days after
it is posted. If it is sent by fax, it is taken to have been received
when the addressee actually receives it in full and in legible form.
(b) The parties' addresses and fax numbers are those set out below, or as
a party notifies the other:
GLYCOTEX
Address: 000 Xxxxx Xxxx Xxxxx Xxxx, XXX 0000 XXXXXXXXX
Fax number: Int + 612 9878 0055
Attention: The President
NOVOGEN LABORATORIES
Address: 000 Xxxxx Xxxx Xxxxx Xxxx, XXX 0000 XXXXXXXXX
Fax number: Int + 612 9878 0055
Attention: Managing Director
14. AMENDMENT AND ASSIGNMENT
14.1 AMENDMENT
This document can only be amended, supplemented, replaced or novated by
another document signed by the parties.
14.2 ASSIGNMENT
A party may only dispose of, declare a trust over or otherwise create an
interest in its rights under this document with the other party's consent.
15. GENERAL
15.1 GOVERNING LAW
(a) This document is governed by the law in force in New South Wales,
Australia.
(b) Each party submits to the non-exclusive jurisdiction of the courts
exercising jurisdiction in New South Wales, and any court that may
hear appeals from any of those courts, for any proceedings in
connection with this document, and waives any right it might have to
claim that those courts are an inconvenient forum.
15.2 LIABILITY FOR EXPENSES
Each party must pay its own expenses incurred in negotiating, executing,
stamping and registering this document.
15.
15.3 RELATIONSHIP OF THE PARTIES
(a) Nothing in this document creates a relationship of employment,
partnership or joint venture between the parties under the laws of any
applicable jurisdiction.
(b) Except as expressly provided in this document, no party may act or has
any authority to act as agent of or in any way bind or commit the
other party to any obligation.
15.4 GIVING EFFECT TO THIS DOCUMENT
Each party must do anything (including execute any document), and must
ensure that its employees and agents do anything (including execute any
document), that the other party may reasonably require to give full effect
to this document.
15.5 WAIVER OF RIGHTS
A right may only be waived in writing, signed by the party giving the
waiver, and:
(a) no other conduct of a party (including a failure to exercise, or delay
in exercising, the right) operates as a waiver of the right or
otherwise prevents the exercise of the right;
(b) a waiver of a right on one or more occasions does not operate as a
waiver of that right if it arises again; and
(c) the exercise of a right does not prevent any further exercise of that
right or of any other right.
15.6 OPERATION OF THIS DOCUMENT
(a) This document contains the entire agreement between the parties about
its subject matter. Any previous understanding, agreement,
representation or warranty relating to that subject matter is replaced
by this document and has no further effect.
(b) Any right that a person may have under this document is in addition
to, and does not replace or limit, any other right that the person may
have.
(c) Any provision of this document which is unenforceable or partly
unenforceable is, where possible, to be severed to the extent
necessary to make this document enforceable, unless this would
materially change the intended effect of this document.
15.7 EXCLUSION OF CONTRARY LEGISLATION
Any legislation that adversely affects an obligation of a party, or the
exercise by a party of a right or remedy, under or relating to this
document is excluded to the full extent permitted by law.
16.
15.8 COUNTERPARTS
This document may be executed in counterparts.
EXECUTED as an agreement.
EXECUTED by GLYCOTEX, INC.:
/s/ Xxxxx Xxxxxx /s/ Xxxxx Xxxxxx
------------------------------------- ----------------------------------------
Signature of director Signature of director/secretary
XXXXX XXXXXX XXXXX XXXXXX
------------------------------------- ----------------------------------------
Name Name
EXECUTED by NOVOGEN
RESEARCH PTY LIMITED:
/s/ Xxxxxxxxxxx Xxxxxxxx /s/ Xxx Xxx Erratt
------------------------------------- ----------------------------------------
Signature of director Signature of director/secretary
XXXXXXXXXXX XXXXXXXX XXX XXX ERRATT
------------------------------------- ----------------------------------------
Name Name
17.
