EXHIBIT 10.4
XXXXX XXXXXX XXXXXXX
L A W Y E R S
---------------------
AMENDED AND RESTATED
SERVICES AGREEMENT
NOVOGEN LIMITED
ABN 37 063 259 754
XXXXXXXX XXXXXXX, INC.
XXXXXXXX XXXXXXX PTY LIMITED
ACN 099 665 675
Xxxxx 00
000 Xxxxxx Xxxxxx
XXXXXX XXX 0000
Telephone: x00 0 0000 0000 00 SEPTEMBER 2003
Fax: x00 0 0000 0000 REF: SJD.BLM.00-0000-0000
(C) XXXXX XXXXXX XXXXXXX 2002-2003
CONTENTS
1. INTERPRETATION 1
1.1 Definitions 1
1.2 Rules for interpreting this document 5
1.3 Business Days 6
1.4 Application of this document 6
2. APPOINTMENT 6
2.1 Appointment 6
2.2 Nature of appointment 6
3. NOVOGEN'S OBLIGATIONS 6
3.1 Services to MEI 6
3.2 Services to MEPL 7
3.3 Sub-contracting and consultants 7
3.4 Appropriate personnel 7
3.5 Performance of the Services 8
3.6 Judgment and skill 8
4. FEES FOR SERVICES TO MEI 8
4.1 Consideration for Services to MEI 8
4.2 Invoices 8
4.3 Payment of invoices 8
4.4 Payments 8
4.5 Amendment of the Agreed Budget 9
4.6 Inspection of records 9
5. FEES FOR SERVICES TO MEPL 9
5.1 Consideration for Services to MEPL 9
5.2 Deduction for START Grant Amounts 9
5.3 Invoices 9
5.4 Payment of invoices 10
5.5 Payments 10
5.6 Amendment of the Agreed Budget 10
5.7 Inspection of records 10
6. GOODS AND SERVICES TAX 10
6.1 GST Law definitions 10
6.2 GST payable in addition to other amounts 11
6.3 Tax invoice 11
6.4 Adjustments 11
6.5 GST where MEI supplies Novogen 12
6.6 GST where MEPL supplies Novogen 12
7. MATERIALS AND INTELLECTUAL PROPERTY RIGHTS 12
7.1 Materials and information 12
7.2 Intellectual Property Rights 12
7.3 Acknowledgment 12
8. CONFIDENTIAL INFORMATION 12
8.1 Confidentiality 12
8.2 Security 13
8.3 Exceptions to obligations of confidentiality 13
8.4 Public domain 13
9. REPRESENTATIONS AND WARRANTIES 13
9.1 Representations and warranties 13
9.2 Reliance on representations and warranties 14
9.3 Exclusion of conditions and warranties 14
9.4 Statutory warranties 14
10. DISPUTE RESOLUTION 15
10.1 Dispute resolution 15
10.2 Dispute Notice 15
10.3 Negotiation 15
10.4 Resolution of Disputes 15
10.5 Mediation 15
11. TERM AND TERMINATION 16
11.1 Term 16
11.2 Termination by MEI 16
11.3 Termination by MEPL 16
11.4 Termination by Novogen 17
11.5 Consequences of termination 17
11.6 Survival and accrued rights 18
12. FORCE MAJEURE 18
12.1 Notice and suspension of obligations 18
12.2 Effort to overcome 18
12.3 Termination 18
13. NOTICES 18
14. AMENDMENT AND ASSIGNMENT 19
14.1 Amendment 19
ii.
14.2 Assignment 19
15. GENERAL 19
15.1 Governing law 19
15.2 Liability for expenses 19
15.3 Giving effect to this document 19
15.4 Waiver of rights 20
15.5 Operation of this document 20
15.6 Consents 20
15.7 Exclusion of contrary legislation 20
15.8 Counterparts 20
SCHEDULES
1 CALCULATION OF FEES FOR SERVICES 21
ANNEXURES
A XXX
X XXX AGREED BUDGET
C MEPL AGREED BUDGET
iii.
AMENDED AND RESTATED
SERVICES AGREEMENT
DATE 24 September 2003
PARTIES
NOVOGEN LIMITED ABN 37 063 259 754, a company incorporated under the
laws of the Commonwealth of Australia, whose registered office is
situated at 000 Xxxxx Xxxx, Xxxxx Xxxx, XXX 0000, Xxxxxxxxx ("NOVOGEN")
XXXXXXXX XXXXXXX, INC., a company incorporated under the laws of
Delaware, United States of America, c/- The Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, XXX
("MEI")
XXXXXXXX XXXXXXX PTY LIMITED ACN 099 665 675, a company incorporated
under the laws of the Commonwealth of Australia, whose registered
office is situated at 000 Xxxxx Xxxx, Xxxxx Xxxx, XXX 0000, Xxxxxxxxx
("MEPL")
RECITALS
A. Novogen has certain skills and expertise in relation to the discovery,
research and development of human therapeutics and their
commercialisation.
X. XXX and MEPL have engaged Novogen to perform the Services on the terms
and conditions of the Original Services Agreement.
C. The parties have agreed to amend and restate the terms and conditions
of the Original Services Agreement as set out in this document with
effect from the date of this document.
OPERATIVE PROVISIONS
1. INTERPRETATION
1.1 DEFINITIONS
The following definitions apply in this document.
"AUTHORISATION" means:
(a) an authorisation, consent, declaration, exemption,
notarisation or waiver, however it is described; and
(b) in relation to anything that could be prohibited or restricted
by law if a Government Agency acts in any way within a
specified period, the expiry of that period without that
action being taken,
including any renewal or amendment.
"BUSINESS DAY" means a day that is not a Saturday, Sunday or public
holiday in Sydney, Australia.
"CHANGE OF CONTROL" means, in relation to a corporation, a change in:
(a) Control of the composition of the board of directors of the
corporation;
(b) Control of more than half the voting rights attaching to
shares in the corporation; or
(c) Control of more than half the issued shares of the corporation
(excluding any part which carries no right to participate
beyond a specified amount in the distribution of either profit
or capital),
which for the avoidance of doubt where the corporation is either MEPL
or MEI does not include a change in:
(d) Control of the composition of the board of directors of
Novogen;
(e) Control of more than half the voting rights attaching to
shares in Novogen; or
(f) Control of more than half the issued shares of Novogen
(excluding any part which carries no right to participate
beyond a specified amount in the distribution of either profit
or capital).
"COMMENCEMENT DATE" means the date the Original Services Agreement was
executed by the last of the parties to execute it.
"COMMONWEALTH" means the Commonwealth of Australia.
"CONFIDENTIAL INFORMATION" in relation to a party means all information
and materials disclosed, provided or otherwise made accessible to, or
developed by that party whether before or after execution of this
document, including all Know-How, financial reports, sales information,
policies, plans, business affairs, transactions, organisations,
business connections and clients of that party, and any other
information which that party reasonably considers confidential, but
excludes information which the other party can establish:
(a) was in the public domain at the date of this document;
(b) subsequent to the date of this document, became part of the
public domain otherwise than as a result of disclosure
directly or indirectly in breach of this document; or
(c) was in its possession at the time of disclosure and was not
otherwise acquired from the other party directly or
indirectly.
"CONTROL" means a power or control that is direct or indirect or that
is, or can be, exercised as a result of, by means of or by the
revocation or breach of a trust, an agreement, a practice, or any
combination of them, whether or not they are enforceable. It does not
matter whether the power or control is express or implied, formal or
informal, exercisable alone or jointly with someone else.
"CORPORATIONS ACT" means the Corporations Xxx 0000 (Cth).
2.
"DISPUTE" has the meaning given to that term in clause 10.1.
"DISPUTE NOTICE" has the meaning given to that term in clause 10.2.
"ENCUMBRANCE" means a mortgage, charge, pledge, lien, hypothecation or
title retention arrangement, a right of set-off or right to withhold
payment of a deposit or other money, a notice under section 255 of the
Income Tax Assessment Xxx 0000 (Cth), section 260-5 in schedule 1 to
the Taxation Administration Act 1953 (Cth) or any similar legislation,
or an easement, restrictive covenant, caveat or similar restriction
over property, or an agreement to create any of them or to allow any of
them to exist.
"FORCE MAJEURE EVENT" means any occurrence or omission as a direct or
indirect result of which the party relying on it is prevented from or
delayed in performing any of its obligations (other than a payment
obligation) under this document and that is beyond the reasonable
control of that party, including forces of nature, industrial action
and action or inaction by a Government Agency.
"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.
"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
(as defined in the Corporations Act) or analogous person appointed to
it or any of its property, being taken under section 459F(1) of the
Corporations Act 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 becoming incapable of managing
its own affairs for any reason, taking any step that could result in
the person becoming an insolvent under administration (as defined in
section 9 of the Corporations Act), entering into a compromise or
arrangement with, or assignment for the benefit of, any of its members
or creditors, or any analogous event, otherwise than in the course of a
reorganisation, reconstruction, amalgamation or merger.
3.
"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 ethical committees
and regulatory authorities.
"LICENCE AGREEMENT" means the document of that title between Novogen
Research and MEPL, dated on or about the date of this document.
"LICENCE OPTION DEED" means the document of that title between Novogen
Research and MEPL, dated on or about the date of this document.
"MEI AGREED BUDGET" means the budget agreed in accordance with schedule
1 and attached as Annexure A.
"MEPL AGREED BUDGET" means the budget agreed in accordance with
schedule 1 and attached as Annexure B.
"ME PRODUCT" means any human therapeutic or pharmaceutical compound,
and any product or formulation containing any such compound, in
relation to which MEI or MEPL has Intellectual Property Rights,
including:
(a) the Products; and
(b) any Option Compound in relation to which MEPL has exercised
its rights under clause 3 of the Licence Option Deed.
"NOVOGEN RESEARCH" means Novogen Research Pty Limited.
"OPTION COMPOUND" has the meaning given to it in the Licence Option
Deed.
"ORIGINAL SERVICES AGREEMENT" means the services agreement entered into
between Novogen, MEI and MEPL in May 2002.
"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.
"PRODUCT" has the meaning given to it in the Licence Agreement.
4.
"QUARTER" means, in respect of any calender year in the Term, the four
quarters of that year, the first of which commences on the first day of
that year.
"SERVICES" means the services set out in clause 3.1 and any other
services Novogen agrees to perform for MEI or MEPL during the Term.
"START GRANT AGREEMENT" means the agreement entitled "R&D START Grant
Agreement No: STG/00220" between Novogen and the Industry Research and
Development Board for and on behalf of the Commonwealth, dated 24
December 1998.
"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;
(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.
5.
(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.
1.4 APPLICATION OF THIS DOCUMENT
(a) This document varies and amends the Original Services
Agreement with effect from the date of execution of this
document.
(b) The terms and conditions of this document replace the terms
and conditions of the Original Services Agreement.
2. APPOINTMENT
2.1 APPOINTMENT
MEI and MEPL each agree to engage Novogen to provide the Services and
Novogen agrees to provide the Services to MEI and MEPL, on the terms
and conditions of this document.
2.2 NATURE OF APPOINTMENT
Novogen's engagement to provide the Services is as an independent
contractor and nothing in this document is to be treated as creating a
partnership or joint venture between the parties under the laws of any
applicable jurisdiction, and except as specifically 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.
3. NOVOGEN'S OBLIGATIONS
3.1 SERVICES TO MEI
Novogen shall perform the following services in accordance with this
document as MEI reasonably requests from time to time during the Term,
having regard to the MEI Agreed Budget:
(a) Novogen shall assist and advise MEI generally on all aspects
of research, development and commercialisation of ME Products;
(b) Novogen shall provide company secretarial, marketing, finance,
logistics, administrative and managerial support to MEI;
6.
(c) Novogen shall plan, conduct, direct, monitor and supervise
pre-clinical and clinical trials of ME Products;
(d) Novogen shall provide scientific and technical advice on
management of pre-clinical and clinical research programs
undertaken by MEI in relation to ME Products and shall manage
such research programs; and
(e) Novogen shall provide to MEI access to records relating to,
and persons involved in the research and development of
Products and any clinical trials conducted or commenced before
the Commencement Date.
3.2 SERVICES TO MEPL
Novogen shall perform the following services in accordance with this
document as MEPL reasonably requests from time to time during the Term,
having regard to the MEPL Agreed Budget:
(a) Novogen shall assist and advise MEPL generally on all aspects
of research, development and commercialisation of ME Products;
(b) Novogen shall provide company secretarial, marketing, finance,
logistics, administrative and managerial support to MEPL;
(c) Novogen shall plan, conduct, direct, monitor and supervise
pre-clinical and clinical trials of ME Products;
(d) Novogen shall provide scientific and technical advice on
management of pre-clinical and clinical research programs
undertaken by MEPL in relation to ME Products and shall manage
such research programs; and
(e) Novogen shall provide to MEPL access to records relating to,
and persons involved in the research and development of
Products and any clinical trials conducted or commenced before
the Commencement Date.
3.3 SUB-CONTRACTING AND CONSULTANTS
(a) Novogen shall not without the prior written consent of MEI or
MEPL (as the case may be) sub-contract the provision of any
part of the Services to any person other than its subsidiaries
(excluding MEI and MEPL).
(b) If at any time during the Term any person is under any
obligation to Novogen or its subsidiaries (other than MEI or
MEPL) to provide services or perform obligations to persons
including MEI and MEPL, which services or obligations include
research, development or commercialisation of ME Products,
Novogen shall procure that that person provides those services
to MEI and MEPL.
3.4 APPROPRIATE PERSONNEL
Novogen shall ensure that its employees, agents and consultants and the
employees, agents and consultants of its subsidiaries who provide the
Services have appropriate
7.
qualifications and experience to provide the Services, having regard to
the nature of the Services.
3.5 PERFORMANCE OF THE SERVICES
Novogen shall perform the Services:
(a) diligently, competently and with reasonable care and skill;
(b) in compliance with all applicable laws and regulations; and
(c) in accordance with the reasonable directions of MEI and MEPL
from time to time during the Term.
3.6 JUDGMENT AND SKILL
Nothing in this clause 3 prevents Novogen from exercising its judgment
and utilising its skills as it considers most appropriate to perform
the Services.
4. FEES FOR SERVICES TO MEI
4.1 CONSIDERATION FOR SERVICES TO MEI
In consideration of the performance by Novogen of Services for or at
the request of MEI, MEI shall pay:
(a) services fees monthly in arrears in accordance with the MEI
Agreed Budget; and
(b) all reasonable out of pocket expenses (including travel and
accommodation expenses) incurred by Novogen each month in the
course of providing Services for or at the request of MEI,
and shall pay those amounts in accordance with clause 4.4.
4.2 INVOICES
Within 7 days of the end of each month, Novogen shall render to MEI a
written invoice for payment for all Services provided by Novogen for or
at the request of MEI in that month, which shall contain the amount
payable by MEI for the Services in that month in accordance with
schedule 1.
4.3 PAYMENT OF INVOICES
MEI shall pay to Novogen the amount of any invoice correctly rendered
to MEI under clause 4.2 within 7 days of the date of the invoice.
4.4 PAYMENTS
All amounts due and payable under clause 4.3 shall be calculated and
paid in United States dollars and shall be paid by bank cheque or
electronic transfer to an account notified by Novogen in writing.
8.
4.5 AMENDMENT OF THE AGREED BUDGET
MEI shall inform Novogen promptly upon becoming aware of any
circumstance by virtue of which the estimates and assumptions on which
the MEI Agreed Budget was based are no longer accurate or applicable
and the parties may amend the MEI Agreed Budget by agreement from time
to time during the Term having regard to any such circumstance.
4.6 INSPECTION OF RECORDS
MEI may during normal business hours and upon reasonable notice by its
authorised representatives (including accountants and auditors) inspect
the records and books of account of Novogen to determine whether the
amounts paid or payable under this clause 4 have been calculated and
paid in accordance with this clause 4, schedule 1 and the MEI Agreed
Budget. For the purposes of that inspection and determination, MEI's
authorised representatives may take such copies and extracts of those
records and books of account as they think fit and Novogen must, and
must ensure that its agents and contractors, give MEI's authorised
representatives such assistance as is necessary, including by providing
access to facilities, hardware, software and documents, to enable that
inspection and determination.
5. FEES FOR SERVICES TO MEPL
5.1 CONSIDERATION FOR SERVICES TO MEPL
In consideration of the performance by Novogen of the Services for or
at the request of MEPL, MEPL shall, subject to clause 5.2 pay:
(a) services fees monthly in arrears in accordance with the MEPL
Agreed Budget; and
(b) all reasonable out of pocket expenses (including travel and
accommodation expenses) incurred by Novogen each month in the
course of providing Services for or at the request of MEPL,
and shall pay those amounts in accordance with clause 5.4.
5.2 DEDUCTION FOR START GRANT AMOUNTS
The amounts payable by MEPL under clause 5.1 shall be reduced by the
amount of all grant funds received by Novogen during each month under
the START Grant Agreement, in accordance with clauses 5.3 and 5.4.
5.3 INVOICES
Within 7 days of the end of each month, Novogen shall render to MEPL a
written invoice for payment for all Services provided by Novogen for or
at the request of MEPL in that month, which shall contain:
(a) the amount payable by MEPL for the Services in that month in
accordance with schedule 1;
9.
(b) the amount of all grant funds received by Novogen in that
month under the START Grant Agreement; and
(c) a figure representing the amount referred to in paragraph (b),
subtracted from the amount referred to in paragraph (a).
5.4 PAYMENT OF INVOICES
(a) If in any invoice correctly rendered by Novogen to MEPL under
clause 5.3, the figure referred to in clause 5.3(c) is a
positive number, MEPL shall pay that amount to Novogen within
7 days of the date of the invoice.
(b) If in any invoice correctly rendered by Novogen to MEPL under
clause 5.3, the figure referred to in clause 5.3(c) is a
negative number, Novogen shall credit MEPL with that amount
against future invoices.
5.5 PAYMENTS
All amounts due and payable under clause 5.4 shall be calculated and
paid in Australian dollars and shall be paid by bank cheque or
electronic transfer to an account notified by Novogen in writing.
5.6 AMENDMENT OF THE AGREED BUDGET
MEPL shall inform Novogen promptly upon becoming aware of any
circumstance by virtue of which the estimates and assumptions on which
the MEPL Agreed Budget was based are no longer accurate or applicable
and the parties may amend the MEPL Agreed Budget by agreement from time
to time during the Term having regard to any such circumstance.
5.7 INSPECTION OF RECORDS
MEPL may during normal business hours and upon reasonable notice by its
authorised representatives (including accountants and auditors) inspect
the records and books of account of Novogen to determine whether the
amounts paid or payable under this clause 5 have been calculated and
paid in accordance with this clause 5, schedule 1 and the MEPL Agreed
Budget. For the purposes of that inspection and determination, MEPL's
authorised representatives may take such copies and extracts of those
records and books of account as they think fit and Novogen must, and
must ensure that its agents and contractors, give MEPL's authorised
representatives such assistance as is necessary, including by providing
access to facilities, hardware, software and documents, to enable that
inspection and determination.
6. GOODS AND SERVICES TAX
6.1 GST LAW DEFINITIONS
Words defined in the GST Law have the same meaning in this clause 6,
unless the context makes it clear that a different meaning is intended.
10.
6.2 GST PAYABLE IN ADDITION TO OTHER AMOUNTS
In addition to paying all amounts payable under this document, each of
MEI and MEPL must:
(a) pay to Novogen an amount equal to any GST payable on any
supply by Novogen under or in connection with this document
without deduction or set-off of any other amount;
(b) make that payment:
(i) if Novogen must pay GST on or after receiving the
consideration or any part of it - as and when MEI or
MEPL (as the case may be) must pay or provide the
consideration or that part of it;
(ii) if Novogen 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
issued that invoice; and
(iii) if Novogen must pay GST upon the occurrence of some
other event - within 5 Business Days of a written
request by Novogen for payment for the GST, which may
be in the form of a tax invoice (or an adjustment
note); and
(c) indemnify Novogen against, and pay Novogen 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 MEI or MEPL (as the case may be) to
pay any amount as and when required by this clause 6,
for example, any additional tax, penalty tax, fine,
interest or other charge under a GST Law.
6.3 TAX INVOICE
Within 28 days of a written request from MEI or MEPL, Novogen must
issue a tax invoice (or an adjustment note) to MEI or MEPL (as the case
may be) for any supply for which Novogen may recover GST from MEI or
MEPL under this document, and must include in the tax invoice (or
adjustment note) the particulars required by the GST Law for MEI or
MEPL to obtain an input tax credit for that GST.
6.4 ADJUSTMENTS
Novogen must refund to MEI or MEPL (as the case may be) any overpayment
by MEI or MEPL for GST, but Novogen need not refund any amount for GST
paid to the Commissioner of Taxation unless Novogen has received a
refund or credit of that amount.
11.
6.5 GST WHERE MEI SUPPLIES NOVOGEN
If MEI must pay GST for anything provided or supplied by MEI under this
document, Novogen must pay to MEI an amount equal to that GST in
exactly the same way as MEI must so do for any GST Novogen must pay,
and this clause 6 applies to that GST as if MEI was Novogen, and
Novogen was MEI.
6.6 GST WHERE MEPL SUPPLIES NOVOGEN
If MEPL must pay GST for anything provided or supplied by MEPL under
this document, Novogen must pay to MEPL an amount equal to that GST in
exactly the same way as MEPL must so do for any GST Novogen must pay,
and this clause 6 applies to that GST as if MEPL was Novogen, and
Novogen was MEPL.
7. MATERIALS AND INTELLECTUAL PROPERTY RIGHTS
7.1 MATERIALS AND INFORMATION
Novogen acknowledges that all materials and information made available
by MEI or MEPL to Novogen in the performance of the Services remain the
property of MEI or MEPL (as the case may be).
7.2 INTELLECTUAL PROPERTY RIGHTS
(a) All Intellectual Property Rights created or developed by or on
behalf of Novogen and its subsidiaries in the performance of
Services for or at the request of XXX xxxx exclusively in MEI
immediately upon their creation, and by this document Novogen
assigns to MEI absolutely and as beneficial owner its entire
right and title to and interest in all such Intellectual
Property Rights.
(b) All Intellectual Property Rights created or developed by or on
behalf of Novogen and its subsidiaries in the performance of
Services for or at the request of MEPL vest exclusively in
MEPL immediately upon their creation, and by this document
Novogen assigns to MEPL absolutely and as beneficial owner its
entire right and title to and interest in all such
Intellectual Property Rights.
7.3 ACKNOWLEDGMENT
Novogen acknowledges that nothing in this document grants to it any
Intellectual Property Rights created in the performance of the Services
and Novogen must not, and must procure that its subsidiaries do not,
represent to any person that it or they have any such Intellectual
Property Rights.
8. CONFIDENTIAL INFORMATION
8.1 CONFIDENTIALITY
Each party must:
(a) keep and maintain all Confidential Information of the other
party strictly confidential;
12.
(b) use Confidential Information of the other party only for the
purposes for which it is disclosed; and
(c) not disclose any Confidential Information of the other party
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.
8.2 SECURITY
For the purposes of clause 8.1, each party must establish and maintain
effective security measures to safeguard the Confidential Information
of the other party from unauthorised use or access and must notify the
other party immediately upon becoming aware of any suspected or actual
unauthorised use or disclosure of that party's Confidential
Information.
8.3 EXCEPTIONS TO OBLIGATIONS OF CONFIDENTIALITY
The obligations in clauses 8.1 and 8.2 do not apply to the extent that
a party is required by law to disclose the other party's Confidential
Information, provided the party promptly gives notice to the other
party of that requirement and discloses only that portion of
Confidential Information which it is legally required to disclose.
8.4 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.
9. REPRESENTATIONS AND WARRANTIES
9.1 REPRESENTATIONS AND WARRANTIES
Each party represents and warrants that:
(a) (STATUS) it is a company limited by shares under the
Corporations Act;
(b) (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;
(c) (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;
(d) (DOCUMENTS EFFECTIVE) this document constitutes its legal,
valid and binding obligations, enforceable against it in
accordance with its terms (except to the extent
13.
limited by equitable principles and laws affecting creditors'
rights generally), subject to any necessary stamping or
registration; and
(e) (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 Authorisation;
(iii) contravene any undertaking or instrument binding on
it or any of its property;
(iv) contravene its constitution; or
(v) require it to make any payment or delivery in respect
of any financial indebtedness before it would
otherwise be obliged to do so.
9.2 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 clause 9.1.
9.3 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.
9.4 STATUTORY WARRANTIES
If legislation implies in this document any condition or warranty and
that legislation avoids or prohibits provisions in a contract excluding
or modifying the application of or exercise of or liability under such
condition or warranty, the condition or warranty shall be deemed to be
included in this document. However the liability of Novogen for any
breach of such condition or warranty shall be limited at the option of
Novogen to one or more of the following:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of
equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of
acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired;
and
(b) if the breach relates to services:
14.
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services
supplied again.
10. DISPUTE RESOLUTION
10.1 DISPUTE RESOLUTION
If a dispute arises out of or in relation to this document (including
any dispute as to breach or termination of this 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 10 except where the party seeks urgent interlocutory relief.
10.2 DISPUTE NOTICE
A party 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").
10.3 NEGOTIATION
Upon receipt by a party of a Dispute Notice, Novogen, MEI and MEPL must
procure that their respective Managing Directors or President (as the
case may be) meet to endeavour to resolve the Dispute expeditiously by
negotiation.
10.4 RESOLUTION OF DISPUTES
If the parties have not resolved the Dispute under clause 10.3 within
14 days of receipt of the 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.
10.5 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.
15.
11. TERM AND TERMINATION
11.1 TERM
The rights and obligations of the parties under this document begin on
the Commencement Date and end on the earlier of:
(a) the date of termination in accordance with this clause 11; and
(b) the sixteenth anniversary of the Commencement Date,
or such later date as the parties agree in writing.
11.2 TERMINATION BY XXX
XXX may terminate its rights and obligations under this document at any
time:
(a) on three months' written notice to Novogen;
(b) immediately if Novogen defaults in the performance of any of
its obligations under this document which in MEI's reasonable
opinion is capable of remedy and fails to remedy that default
within 21 days of receiving written notice from MEI specifying
the default and requiring the default to be remedied;
(c) on 21 days written notice if Novogen defaults in the
performance of any of its material obligations under this
document which in MEI's reasonable opinion is not capable of
remedy; and
(d) immediately by notice in writing if:
(i) there is a Change of Control of Novogen without MEI's
written consent (which shall not be unreasonably
withheld, delayed or conditioned);
(ii) Novogen is involved in an Insolvency Event; or
(iii) Novogen ceases for any reason to be able lawfully to
carry out all the transactions which this document
contemplates may be carried out by Novogen.
11.3 TERMINATION BY MEPL
MEPL may terminate its rights and obligations under this document at
any time:
(a) on three months' written notice to Novogen;
(b) immediately if Novogen defaults in the performance of any of
its obligations under this document which in MEPL's reasonable
opinion is capable of remedy and fails to remedy that default
within 21 days of receiving written notice from MEPL
specifying the default and requiring the default to be
remedied;
16.
(c) on 21 days written notice if Novogen defaults in the
performance of any of its material obligations under this
document which in MEPL's reasonable opinion is not capable of
remedy; and
(d) immediately by notice in writing if:
(i) there is a Change of Control of Novogen without
MEPL's written consent (which shall not be
unreasonably withheld or delayed or conditioned);
(ii) Novogen is involved in an Insolvency Event; or
(iii) Novogen ceases for any reason to be able lawfully to
carry out all the transactions which this document
contemplates may be carried out by Novogen.
11.4 TERMINATION BY NOVOGEN
Novogen may terminate this document at any time:
(a) immediately if MEI or MEPL defaults in the performance of any
of its obligations under this document which in Novogen's
reasonable opinion is capable of remedy and fails to remedy
that default within 21 days of receiving written notice from
Novogen specifying the default and requiring the default to be
remedied;
(b) on 21 days written notice if MEI or MEPL defaults in the
performance of any of its material obligations under this
document which in Novogen's reasonable opinion is not capable
of remedy; and
(c) immediately by notice in writing if:
(i) there is a Change of Control of MEI or MEPL without
Novogen's written consent (which shall not be
unreasonably withheld or delayed or conditioned);
(ii) MEI or MEPL is involved in an Insolvency Event; or
(iii) MEI or MEPL ceases for any reason to be able lawfully
to carry out all the transactions which this document
contemplates may be carried out by MEI or MEPL (as
the case may be).
11.5 CONSEQUENCES OF TERMINATION
Upon expiry or termination of this document for any reason each party
must immediately return to any other party or destroy at its direction:
(a) all Confidential Information of that other party; and
(b) all materials, documents and other records containing,
referring or relating to any Confidential Information of that
other party,
in its possession, custody or power.
17.
11.6 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
(b) the obligations of the parties under clauses 1, 8, 9.3, 10, 13
and 15 (except clause 15.3) and this clause 11, which survive
termination.
12. FORCE MAJEURE
12.1 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 others 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 Force Majeure Event as long as the Force Majeure Event
continues.
12.2 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.
12.3 TERMINATION
If a Force Majeure Event occurs for more than 30 days, any party may
terminate this document by giving at least 21 days notice to the other
parties.
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.
18.
(b) A person's address and fax number are those set out below, or
as the person notifies the sender:
NOVOGEN
Address: 000 Xxxxx Xxxx, Xxxxx Xxxx, XXX 0000 XXXXXXXXX
Fax number: Int + 612 9878 0055
Attention: Managing Director
MEI
Address: 000 Xxxxx Xxxx, Xxxxx Xxxx, XXX 0000 XXXXXXXXX
Fax number: Int + 612 9878 0055
Attention: President
MEPL
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 consent of each
other party.
15. GENERAL
15.1 GOVERNING LAW
(a) This document is governed by the law in force in New South
Wales.
(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.
15.3 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.
19.
15.4 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.
15.5 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.
15.6 CONSENTS
Where this document contemplates that either party may agree or consent
to something (however it is described), that party may:
(a) agree or consent, or not agree or consent, in its absolute
discretion; and
(b) agree or consent subject to conditions,
unless this document expressly contemplates otherwise.
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.
15.8 COUNTERPARTS
This document may be executed in counterparts.
20.
SCHEDULE 1
CALCULATION OF FEES FOR SERVICES
The fees payable by MEI and MEPL to Novogen for Services provided to MEI or MEPL
(as the case may be) shall be determined as follows:
1. Within 14 days of the beginning of each financial year during the Term,
Novogen shall prepare and provide to each of MEI and MEPL, a budget
estimate for the following financial year having regard to:
(a) the time spent by the employees and consultants of Novogen in
the previous financial year in the provision of Services to
MEI and MEPL under this document; and
(b) any considerations of which it is aware which are likely to
influence the time spent by the employees and consultants of
Novogen in the following financial year in the provision of
Services to MEI and MEPL under this document.
2. Each budget estimate prepared under paragraph 1 shall contain for each
of MEI and MEPL:
(a) a list of all employees and consultants who Novogen expects
will provide Services during the financial year, together with
their positions, and the salaries, consultancy fees or other
remuneration payable by Novogen to those employees and
consultants for that financial year;
(b) the allocated on-costs attributable to each person listed in
paragraph (a), including fringe benefits tax, payroll tax,
workers compensation insurance, superannuation charges and
holiday and sick pay;
(c) the percentage of time Novogen expects each person listed in
paragraph (a) to spend on the provision of Services under this
document for the following financial year;
(d) the sum of the percentages for each person in paragraph (c)
multiplied by the costs and charges for that person in
paragraphs (a) and (b);
(e) a premises rental charge based on the floor space within
Novogen's premises attributable to each person listed in
paragraph (a);
(f) a general asset usage charge calculated on the basis of
depreciation, amortisation and repairs and maintenance of
Novogen's general assets used by each person listed in
paragraph (a);
(g) a general overheads charge based on all other general
outgoings in the operation of Novogen's business attributable
to each person listed in paragraph (a);
21.
(h) a direct asset usage charge in relation to non-production
assets directly attributable to the businesses of MEI or MEPL
(as the case may be), calculated on the basis of depreciation,
amortisation and repairs and maintenance of those assets; and
(i) calculations of the budget estimate of fees payable by MEI and
MEPL for Services in the following financial year, being the
sum of:
(i) the figure in paragraph (d);
(ii) the figures in paragraphs (e), (f), (g) and (h); and
(iii) an additional 10% of those figures.
3. Within 14 days of receipt of a budget estimate under paragraph 1, MEI
and MEPL shall either accept the budget estimate provided by Novogen
under paragraph 1 or respond to Novogen with a revised budget estimate
having regard to the assumptions and calculations in the estimate
provided by Novogen.
4. Within 7 days of receipt by Novogen of any revised budget estimate
under paragraph 3, the parties shall negotiate in good faith to reach
agreement on a budget estimate.
5. The budget estimate accepted by MEI under paragraph 3 or agreed under
paragraph 4 shall become the agreed budget for the following financial
year and shall be attached to this document as Annexure A.
6. The fees payable by MEI to Novogen per month in consideration of the
performance of the Services shall be one twelfth of the budget set out
in Annexure A.
7. The budget estimate accepted by MEPL under paragraph 3 or agreed under
paragraph 4 shall become the agreed budget for the following financial
year and shall be attached to this document as Annexure B.
8. The fees payable by MEPL to Novogen per month in consideration of the
performance of the Services shall be one twelfth of the budget set out
in Annexure B.
22.
EXECUTED as an agreement.
EXECUTED by NOVOGEN LIMITED:
/s/ Xxxxxxxxxxx Xxxxxxxx /s/ Xxxxxx Xxx Xxxxxx
------------------------------------ --------------------------------------
Signature of director Signature of director/secretary
Xxxxxxxxxxx Xxxxxxxx Xxxxxx Xxx Xxxxxx
------------------------------------ --------------------------------------
Name Name
EXECUTED by XXXXXXXX XXXXXXX, INC.:
/s/ Xxxxxxxxxxx Xxxxxxxx /s/ Xxxxx Xxxxxx
------------------------------------ --------------------------------------
Signature of director Signature of director/secretary
Xxxxxxxxxxx Xxxxxxxx Xxxxx Xxxxxx
------------------------------------ --------------------------------------
Name Name
EXECUTED by XXXXXXXX XXXXXXX
PTY LIMITED:
/s/ Xxxxxxxxxxx Xxxxxxxx /s/ Xxxxx Xxxxxx
------------------------------------ --------------------------------------
Signature of director Signature of director/secretary
Xxxxxxxxxxx Xxxxxxxx Xxxxx Xxxxxx
------------------------------------ --------------------------------------
Name Name
23.
ANNEXURE A
MEI AGREED BUDGET
24.
ANNEXURE B
MEPL AGREED BUDGET
25.
