EXHIBIT 10.6
AGREEMENT
BETWEEN
OMNIGLOW CORPORATION,
THE TRYLON CORPORATION
AND
ASIAN SOURCING CORPORATION
THIS AGREEMENT ("Agreement") is dated as of the 16th day of March 1994, by
and between OMNIGLOW CORPORATION, a corporation organized under the laws of the
State of California, United States of America ("Omniglow"), THE TRYLON
CORPORATION, a corporation organized under the laws of the State of Delaware,
United States of America ("Trylon") and Asian Sourcing Corporation, a
corporation organized under the laws of the State of California, United States
of America ("ASC"), and sets forth the material agreements of the parties with
respect to the matters set forth below.
WHEREAS, Omniglow is the owner of one or more patents relating to, has
proprietary know how with respect to, and manufactures Blue-White Speculite(R),
a chemiluminescent lightstick which is utilized, through certain proprietary
knowledge owned by Trylon, for the endoscopic gynecological examination,
testing, diagnosis and treatment of women through chemiluminescent illumination,
which examination is known as Speculoscopy; and
WHEREAS, ASC has indicated its desire to form a joint venture under the
laws of the People's Republic of China with a company organized under the laws
of People's Republic of China ("Joint Venture Partner") for the purpose of
distributing Speculite(R) within and, as permitted by Omniglow and Trylon,
outside the People's Republic of China and, for the purpose of supplying such
requirements, manufacturing Speculite(R) at a mutually approved location in the
People's Republic of China (the "Joint Venture"); and
WHEREAS, in order to carry out such endeavors, ASC desires to obtain from
Omniglow and Trylon certain licenses, training and products that will be
sublicensed, provided and/or sold, as applicable to the Joint Venture and/or
utilized by the Joint Venture, and ASC will pay to Omniglow and Trylon for such
items the amounts listed herein; and
WHEREAS, Omniglow and Trylon desire to proceed on the terms and conditions
set forth herein; and, in consideration of the foregoing Omniglow is intending
to enter into a joint venture with Trylon for the purpose of carrying out the
intent of this Agreement, subject to conditions precedent enumerated herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements, premises and covenants contained herein, the parties agree as
follows:
1. Definitions and Interpretation
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A. Wherever used in this Agreement the word "manufacture"
shall
mean the manufacture of Speculite(R) chemiluminescent lightsticks from
chemiluminescent chemicals and ampules containing other chemiluminescent
chemicals supplied by Omniglow, Trylon or any affiliate of either, but shall not
include manufacture of such chemicals, ampules or other components of the
lightsticks.
B. Wherever used in this Agreement the words "distribution," "sell,"
"market," "license" or "transfer" shall mean the distribution, sale, marketing,
license or other transfer of Speculite(R) chemiluminescent lightsticks, but
shall not include the distribution, sale, marketing, license or other transfer
of chemicals, goods, products or other materials manufactured, distributed, sold
or supplied by Omniglow or Trylon or any affiliate of either other than as
expressly permitted by this Agreement.
C. Wherever a party is named or referred to in this Agreement, or is
referenced by a type of proposed party, such as joint venturer, distributor,
subdistributor, representative, agent, entity or otherwise, the party shall be
deemed to include the party and each and everyone of its shareholders, partners,
limited partners, owners of all types, subsidiaries, affiliates, officers,
directors, agents, servants, employees and representatives of all types.
D. The term "Blue-White Speculite(R) Lightstick" or "Lightstick" or
Speculite(R) shall mean a Blue-White Speculite(R) chemiluminescent light stick,
with fracturable glass ampules imbedded in polypropylene containers,
approximately 52mm in length (samples of which have been provided to ASC prior
to the date hereof), to be used solely as an illumination source in the visual
examination by physicians and health care providers of pathological demarcations
during gynecological endoscopic visual examination procedures.
2. Joint Venture and Cooperation.
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A. [Omitted]
B. [Omitted]
C. [Omitted]
3. Conditions to Performance of ASC. Each and all of the following
--------------------------------
shall be conditions for the benefit of Omniglow and Trylon, jointly and
severally, to the obligations of Omniglow and Trylon each to perform hereunder
and to continue the appointment of ASC as a distributor hereunder and the Term
of the Agreement. Should any of such conditions not be satisfied within one (1)
year of the date of this Agreement, Trylon and/or Omniglow, at their election,
may terminate this Agreement (and thereby terminate the appointment and rights
of ASC hereunder) upon thirty (30) days prior written notice to ASC or may
convert ASC's distributorship to a nonexclusive distributorship.
A. ASC, directly or through an entity in which it holds a controlling
interest, and the Joint Venture Partner shall have entered into a joint venture
agreement that includes confidentiality clauses, non-competition clauses,
exclusivity clauses and protections for patents, trademarks, trade secrets, know
how, confidential information and proprietary property and information of
Omniglow and of Trylon reasonably satisfactory to Omniglow and to Trylon, as
applicable;
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B. ASC and the Joint Venture shall have used its and their best
efforts to obtain patent protection (or other reasonably equivalent protection,
in Omniglow and Trylon's sole determination) in the People's Republic of China
satisfactory to Omniglow with regard to Omniglow patents relating to
chemiluminescent light technology and Speculite(R) and satisfactory to Trylon
with regard to Trylon patents relating to Speculoscopy. Should Omniglow's
patents be determined, or be likely to be determined, by Chinese authorities not
to qualify for patent protection by reason of lack of novelty, or otherwise, ASC
and the Joint Venture again will use its and their best efforts to obtain patent
protection for Omniglow's chemiluminescent light products and Speculite(R) if
such are modified by Omniglow to add novel or other elements to the products or
processes and for Trylon's proprietary procedures and processes if such are
modified by Trylon to add novel or other elements to the existing procedures and
processes. In all such instances, Trylon and Omniglow shall provide to ASC all
appropriate information to effect and obtain such patent protection and shall
execute documents and take such other actions as are reasonably necessary for
such purpose.
C. ASC or the Joint Venture shall have obtained all necessary
government approvals for the Joint Venture and the conduct of its operations,
and the Joint Venture Partner shall have been approved by Trylon and Omniglow
(which consent will not be unreasonably withheld if the proposed Joint Venture
Partner has sufficient financial and personnel resources and legal authority for
fulfillment of the Joint Venture's duties and obligations and the Joint Venture
Partner and its officers, directors, shareholders, affiliates and controlling
persons are generally recognized as having a business, legal and ethical
reputation of high quality).
4. ASC Responsibilities. It shall be the sole responsibility of ASC
--------------------
to establish, operate and supervise the Joint Venture and all contracts between
ASC and other approved parties in accordance with the terms of this Agreement.
ASC shall use its good faith, best efforts to establish the Joint Venture on
commercially reasonable terms, and shall be solely responsible for any and all
costs, expenses and obligations of any nature arising from or incurred in
connection with the Joint Venture. ASC shall present any proposed Joint Venture
or other agreement to Omniglow and to Trylon at such times as shall be
appropriate to enable Omniglow and Trylon to provide advice to ASC with regard
to contractual protections which must exist for the benefit of ASC, Trylon and
Omniglow before Omniglow and Trylon will approve the Joint Venture or any other
agreement. ASC shall have responsibility for obtaining, or causing the Joint
Venture to obtain, all governmental approvals within the People's Republic of
China, and all of the countries within which ASC desires to sell Speculite(R)
for use in Speculoscopy, to enable ASC and the Joint Venture to conduct business
within the People's Republic of China, and any other such countries. ASC, at its
sole cost, shall at all times have responsibility for enforcing all provisions
of all agreements between ASC and any party which protect Omniglow and/or
Trylon. Should ASC fail to take reasonable action for such protection of
Omniglow and/or Trylon, Omniglow or Trylon, as the case may be, shall have the
right to take such action, legal or otherwise, at ASC's cost and expense to
protect its rights or interests.
5. Joint Venture Responsibilities. Unless ASC and/or the Joint Venture
------------------------------
shall have demonstrated to the reasonable satisfaction of Omniglow and Trylon
the market feasibility for distribution and sale of the Blue-White Speculite(R)
Lightsticks in the People's Republic of China, the Joint Venture and/or ASC (or
its agent or subdistributor) shall initiate and conduct a "pilot" testing
program (the "Program") in major metropolitan areas within the People's Republic
of China to introduce Speculoscopy and to determine whether Speculoscopy may be
adopted by the Chinese governmental health care authorities for use in
connection with its general population. The
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Program shall commence within six (6) months after the date of this Agreement
and shall conclude not later than one (1) year after commencement of the
Program. During and following the completion of the Program the Joint Venture
shall have responsibility for reporting to Omniglow and Trylon interim and final
results of the Program, and for obtaining from the appropriate Chinese
governmental healthcare authorities a determination as to whether those
healthcare authorities will authorize or direct appropriate agencies to purchase
Blue-White Speculite(R) Lightsticks from ASC (or an agent or subdistributor of
Ho) or the Joint Venture for utilization in gynecological Speculoscopy
examination procedures within the People's Republic of China. The Joint Venture
and ASC shall be responsible for negotiating and obtaining all final contracts
with all parties participating in the manufacture and sale of Blue-White
Speculite(R) Lightsticks in the People's Republic of China, all of which
agreements shall be made available to Omniglow and Trylon prior to their
execution to enable Omniglow and Trylon to determine whether such agreements
contain all protections required by Omniglow and Trylon as a condition of
selling products or services relating to Blue-White Speculite(R) Lightsticks to
ASC, the Joint Venture, or any other parties in the People's Republic of China.
If the Joint Venture determines to export and/or sell any amount of the Blue-
White Speculite(R) Lightsticks manufactured within the People's Republic of
China to countries within the Territory other than the People's Republic of
China, ASC shall bear the sole responsibility and cost for such export or sale,
and the grant to ASC and/or the Joint Venture to sell Blue-White Speculite(R)
Lightsticks within the Territory shall be made in consideration of ASC expressly
assuming such entire obligation. If ASC and/or the Joint Venture (or any foreign
entity) is required to purchase any portion of Blue-White Speculite(R)
Lightsticks manufactured within the People's Republic of China as a condition of
the Joint Venture or contracts with parties, agencies, or entities within the
People's Republic of China, ASC and the Joint Venture shall bear the sole
responsibility for such purchase requirements, and shall indemnify, hold
harmless, and defend Omniglow and Trylon with respect to any such purchase
requirement. Neither Omniglow, Trylon, nor any Joint Venture established by
Trylon or Omniglow shall be responsible or be required to make any purchase of
Blue-White Speculite(R) Lightsticks manufactured within the People's Republic of
China.
6. Omniglow and Trylon Information, Equipment Purchase, Turn-Key
-------------------------------------------------------------
Installation and Training and Support Services.
----------------------------------------------
A. Omniglow and Trylon Information. Omniglow and Trylon have provided
-------------------------------
or will be providing to ASC a copy of all United States patents they hold
relating to Blue-White Speculite(R) Lightsticks and Speculoscopy. Trylon also
will provide to ASC immediately after execution of a copy of the Form 510(k)
filed with the United States Food and Drug Administration pertaining to
Speculoscopy.
B. Purchase of Equipment. Omniglow has provided to ASC prior to the
---------------------
execution and delivery of this Agreement information concerning the equipment
and equipment prices necessary or appropriate for the automated manufacture of a
large volume of Blue-White Speculite(R) Lightsticks at the manufacturing
facility selected by the Joint Venture. Should the Joint Venture determine to
manufacture Blue-White Speculite(R) Lightsticks, the Joint Venture shall place
an order for the selected equipment through Omniglow and shall forward to
Omniglow $250,000 (or, if the cost of the selected equipment is greater than
$250,000, the amount that is the full invoiced cost of the selected equipment)
in United States currency (or place a satisfactory letter of credit payable to
Omniglow) at the time an order for manufacturing equipment is placed, which
funds will be applied in part or in whole by Omniglow toward the purchase of the
equipment and the preparation of a manufacturing plan and project schedule for
the Joint Venture. ASC acknowledges and
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understands that a lead time of at least one hundred twenty (120) days' is
required for Omniglow to obtain machinery or equipment to be provided under this
Section. Therefore, ASC shall give Omniglow at least one hundred twenty (120)
days' prior written notice of the intended time and place for delivery and
installation of such machinery and equipment.
C. Trylon and Omniglow Turn-Key, Training and Support Services. Once
-----------------------------------------------------------
the equipment purchase has occurred, Omniglow and Trylon will provide certain
training, turn-key and support services to ASC and the Joint Venture, as set
forth below in clauses (i) and (ii), for the compensation set forth below in
clause (iii):
(i) [Omitted]
(ii) Trylon will provide certain training and training information to
ASC and/or the Joint Venture upon request for use in connection with the Joint
Venture in the People's Republic of China. The training will be for the purpose
of enabling Chinese health care practitioners supplied with Blue-White
Speculite(R) Lightsticks by the Joint Venture or ASC to understand and
administer the Speculoscopy examination and, as appropriate, to train other
Chinese health care practitioners in the Speculoscopy examination. Trylon and
ASC shall agree on a training program (including Speculoscopy educational,
marketing and training seminars) to be undertaken by Trylon personnel in the
People's Republic of China (with twelve (12) trips of not more than five (5)
days each by a Trylon employee available at no additional charge to ASC or the
Joint Venture, and additional support in China available from Trylon personnel
on a time and materials basis to be negotiated by the parties) and in the United
States (at ASC's cost with respect to out-of-pocket expenses, but with no
additional fees charged by Trylon to ASC or the Joint Venture for the first five
(5) business days of training, with any additional training to be charged on a
time and materials basis to be negotiated by the parties)(the "Trylon Training
and Support Services").
(iii) [Omitted]
7. Provision of Blue-White Speculite(R) Lightsticks.
------------------------------------------------
[Omitted]
8. Manufacture of Blue-White Speculite(R) Lightsticks. Should the
--------------------------------------------------
Joint Venture commence manufacturing Blue-White Speculite(R) Lightsticks:
A. [Omitted]
B. ASC shall have the right to request lower chemical and
materials prices if necessary and appropriate for maximum market penetration or
market retention, or to reflect possible economies of scale resulting from large
volume orders, which request will be considered by Omniglow and responded to by
Omniglow to ASC within thirty (30) days after the receipt of such request from
ASC. Omniglow shall consider such requests in good faith, but shall have full
discretion to reject or modify such requests.
C. Neither the Joint Venture, ASC nor any other party who is
granted rights pursuant to this Agreement shall manufacture, distribute, sell or
transfer any similar or competing products or any other chemiluminescent light
products or chemicals therefor (whether for Speculoscopy or otherwise) without
the prior written permission of Omniglow and Trylon (which
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provision shall survive any termination or expiration of this Agreement).
D. Upon request by Omniglow, Trylon or the joint venture between
Omniglow and Trylon, ASC shall sell to such requesting party at a cost of the
materials to the Joint Venture (i.e., chemicals sold to ASC by Omniglow, Trylon
and/or the joint venture between Omniglow and Trylon, printed aluminum wrap and
plastic covering and reasonable labor charges (based on comparable labor charges
in the local region of the province for manufacturing domestic general
products), which cost shall be reasonably determined by the parties by reference
to the Joint Venture's actual invoiced and incurred costs for the foregoing
items) plus a twenty-five percent (25%) aggregate margin for ASC (and the Joint
Venture, if applicable) the number of Blue-White Speculite(R) Lightsticks
reasonably requested by Omniglow, Trylon or the joint venture between Omniglow
and Trylon from time to time
E. [Omitted]
F. In the event that manufacturing of the Lightsticks commences in
the People's Republic of China and ASC commences distribution in Taiwan, Trylon
and Omniglow will agree to supply such Taiwanese distribution requirements of
ASC as are reasonably requested from United States or other manufacturing
sources that comply with Taiwanese legal requirements (with price, delivery and
other terms as the parties shall agree).
9. Termination of Rights under this Agreement. All rights of ASC,
------------------------------------------
the Joint Venture or other parties obtaining rights pursuant to this Agreement
shall terminate upon the earlier of: (i) the breach by ASC or the Joint Venture
of any of the terms or conditions of this Agreement; (ii) a determination by the
parties or any governmental authority of the illegality of this Agreement; (iii)
the agreement of the parties; or (iv) the expiration of this Agreement. In the
event of such termination, all obligations of the parties under Sections 10, 11
and 12 of this Agreement, and all other obligations which have not been fully
performed as of the effective date of termination, shall be and remain binding
upon and enforceable against the parties having such continuing obligations.
Further, any provisions which by their terms explicitly survive termination of
this Agreement shall survive the termination of this Agreement.
10. Further Agreements of ASC. In addition to the foregoing, ASC
-------------------------
(and each of its subdistributors, affiliates, agents, partners and licensees)
hereby agree as follows (which agreements shall survive the termination or
expiration of this Agreement):
A. ASC, the Joint Venture and all parties with whom either ASC or the
Joint Venture contract or agree shall respect, shall not infringe, and shall not
challenge any patents owned by Omniglow with respect to chemiluminescent light
products and Speculite(R) and by Trylon with respect to Speculoscopy or any
trademarks of either Omniglow or Trylon. Furthermore, ASC and all such parties
shall not reverse engineer or otherwise in any manner, directly or indirectly,
create chemicals or other products which are in any manner based on or in
technology described in patents, know how or confidential or proprietary
information of Omniglow, Trylon or any joint venture between Omniglow and
Trylon.
B. ASC, the Joint Venture and all parties with whom either ASC or the
Joint Venture contract or agree shall not directly or indirectly manufacture,
sell, distribute or transfer Speculite(R), chemiluminescent light products,
chemicals sold by Omniglow or Trylon (or any affiliate of either) to any party,
or any parts or components thereof, except in the Territory during the Term
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as specifically authorized in the relevant contract with ASC or the Joint
Venture which has been approved by Trylon and Omniglow.
C. Breach of any provisions for the protection of Omniglow or Trylon
in this Agreement or in any contract pursuant or related to this Agreement
(which breach, if reasonably capable of cure, is not cured within thirty (30)
days after notice of such breach is given) shall give Omniglow or Trylon, as
applicable, the right to terminate this Agreement or the appropriate contract,
in which event all rights of ASC and/or all parties having obtained rights
through ASC and/or the Joint Venture, as appropriate, shall terminate
immediately and automatically on the termination date (with no further right to
manufacture, sell, market, distribute or otherwise handle the products
hereunder) and Omniglow shall have the exclusive right to repurchase at the
price sold by Omniglow all products, goods, or chemicals sold by Omniglow to any
party. Should Omniglow not exercise such right within sixty (60) days after
termination, Trylon then shall have the same exclusive right of repurchase.
11. Confidentiality. ASC (and each of its agents, employees,
---------------
shareholders, representatives, officers, directors and partners) acknowledges
and agrees not to use any confidential or proprietary information of Omniglow or
Trylon in a manner adverse to the interests of Omniglow or Trylon, as
applicable, or other than as is necessary or appropriate for the performance of
its rights, duties and obligations under this Agreement. ASC and its partners,
affiliates, officers, directors, shareholders, employees, agents, contractors,
and representatives, jointly and severally agree that they shall keep all
confidential and proprietary information supplied to them under this Agreement
in the strictest confidence, and shall not disclose such information to any
person other than as reasonably necessary for performance of this Agreement.
ASC acknowledges and agrees that all documents, information, know-how, and
property supplied to ASC and/or the Joint Venture by Omniglow are and shall
remain the property of Omniglow and must be returned immediately upon request by
Omniglow. ASC acknowledges and agrees that all documents, information, know-
how, and property supplied to ASC and/or the Joint Venture by Trylon are and
shall remain the property of Trylon and must be returned immediately upon
request by Trylon. In the event of any breach of ASC and/or the Joint Venture
of this Section 11, each of Omniglow and Trylon shall be entitled to equitable
relief from any court of competent jurisdiction to enforce the breached
obligation, including without limitation, specific performance and preliminary
injunctive relief, temporary restraining orders and Mareva orders, in addition
------
to any monetary damages that may be determined. Every contract between ASC
and/or the Joint Venture and another party pursuant to or relating to this
Agreement shall include confidentiality provisions substantially the same as the
provisions of this Section 11. The agreements in this Section 11 shall survive
any termination or expiration of this Agreement.
12. Non-Competition. In consideration of the rights granted by Omniglow and
---------------
Trylon to ASC, the Joint Venture, or other parties entering into contracts
pursuant or related to this Agreement, and in recognition of the need for
loyalty and cooperative efforts between all involved parties to enhance and
promote the value of the patents, trademarks, know how and confidential
information of Omniglow and Trylon, and to develop markets for sale of Blue-
White Speculite(R) Lightsticks which will benefit all parties, neither ASC, the
Joint Venture, nor any party having rights or obligations under any contract
pursuant or related to the terms of this Agreement shall directly or indirectly
engage in any conduct, action or activity that (i) competes or will compete
during the term of this Agreement with the manufacture, distribution, marketing,
sale, licensing or transfer of Blue-White Speculite(R) Lightsticks under this
Agreement, or (ii) competes or will compete with the manufacture, distribution,
sale, license or transfer of Omniglow's chemiluminescent light chemicals,
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materials or finished goods other than Blue-White Speculite(R) Lightsticks. In
the event of any breach of this Section 12 by ASC, the Joint Venture or such
other contracting parties, each of Omniglow and Trylon shall be entitled to
equitable relief from any court of competent jurisdiction to enforce the
breached obligation, including without limitation specific performance and
preliminary injunctive relief, temporary restraining orders and Mareva orders,
------
in addition to any monetary damages that may be determined. Every contract
between ASC and/or the Joint Venture and another party pursuant to or relating
to this Agreement shall include noncompetition provisions for the benefit of
Omniglow and Trylon substantially the same as the provisions of this Section 12.
The agreements in this Section 12 shall survive any termination or expiration of
this Agreement.
13. Dispute Resolution. Should any disputes arise between the parties
------------------
hereto, they agree to attempt to resolve them by good faith discussion and
negotiation. Should resolution of a dispute not occur within fifteen days after
a party has requested good faith discussion and negotiation, any and all
controversies, claims and disputes under and relating to this Agreement, or the
breach thereof, shall be resolved first through good faith mediation, and second
through binding arbitration, with venue in the City and County of Xxx Xxxxxxxxx,
Xxxxx xx Xxxxxxxxxx, Xxxxxx Xxxxxx, under the rules and procedures of Judicial
Arbitration and Mediation Services, Inc. ("JAMS"). ASC hereby specifically
consents to venue as set forth above, and consents to personal jurisdiction over
ASC of state and federal courts in the City and County of San Francisco. ASC
agrees that such consent is a material inducement to Omniglow and Trylon to
cause them to enter into this Agreement. Judgment upon the award rendered by an
arbitrator may be entered in any court having jurisdiction thereof. Within ten
(10) days after initiation of mediation, the parties shall select a single
neutral mediator from the JAMS list of available mediators. If the parties fail
to select a mediator within such period, then a mediator shall be selected by
JAMS in accordance with its procedures. Within ten (10) days after the
initiation of arbitration, the parties shall select a single neutral arbitrator
from the JAMS list of available arbitrators to preside over the arbitration
proceeding. If the parties fail to select an arbitrator, the arbitrator shall be
selected by JAMS in accordance with its procedures. If possible, any mediator
or arbitrator should have expertise with international commercial matters and
distribution arrangements. Nothing in this arbitration provision shall be
construed to limit the right of any party to seek preliminary injunctive relief
in any court of competent jurisdiction in accordance with Sections 11 and 12 or
otherwise, nor shall the filing of an action to obtain such relief constitute a
waiver of the right to arbitrate the underlying dispute. The arbitrator shall
have authority to order such other discovery as it deems appropriate for a full
and fair hearing of the case. A determination on the merits shall be rendered
in accordance with the law of the State of California to the same extent as if
the dispute were pending before a superior court of that State. The award shall
include an award to the prevailing party of its arbitration costs, reasonable
legal fees, and costs.
14. Additional Agreements. ASC and the Joint Venture agree to execute
---------------------
additional agreements and instruments when requested by Trylon and/or the Joint
Venture for the purpose of further evidencing, clarifying or specifying the
rights and obligations of the parties hereunder. Such agreements and
instruments shall be executed and delivered promptly to Trylon and Omniglow.
15. Miscellaneous Matters. This Agreement shall be binding on, and
---------------------
inure to
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the benefit of, the parties hereto, their successors and assigns; provided,
however, that ASC may not assign this Agreement or any right, duty or obligation
hereunder without the prior written consent of both Omniglow and Trylon.
Further, this Agreement shall terminate automatically upon any change in
ownership, liquidation, dissolution, sale, merger, reorganization,
recapitalization or business combination of ASC, unless Trylon and Omniglow are
provided with definitive evidence that Handson Ho remains the shareholder of at
least eighty percent (80%) of ASC (or if ASC is not the surviving corporation,
of the surviving corporation). This Agreement may only be amended or modified in
writing by the agreement of both parties, and this Agreement and any amendments
or modifications may be signed in counterparts, with each counterpart being an
original document and all counterparts together constituting an original
document. This Agreement and the relationship of the parties shall be governed
by, and interpreted under, the laws of the State of California, United States,
without regard to choice of law or conflict of law provisions. The parties
hereby disclaim any applicability of the Convention for the International Sale
of Goods to this Agreement. In the event of any dispute, the prevailing party
shall be entitled to recovery of its legal fees and costs and the costs of
enforcement. This Agreement constitutes the entire agreement and understanding
of the parties with respect to the matters herein and supersedes all prior or
contemporaneous agreements or understandings, whether written or oral. Any
notice permitted or refined to be given in accordance with this Agreement, shall
be deemed given upon personal delivery or, upon receipt, by prepaid, registered
mail, to the last address provided by a party hereto or by confirmed fax or
telex.
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IN WITNESS WHEREOF, the duly authorized representatives of the parties
have executed this Agreement as of the date first above written.
OMNIGLOW CORPORATION THE TRYLON CORPORATION
By: /s/ Xxxx Xxxxxx By: /s/ X. X. Xxxxx
----------------- ---------------
Name: Xxxx Xxxxxx Name: Xxxxxx X. Xxxxx
----------- ---------------
Title: President Title: President
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Address for Notices: Address for Notices:
00-X Xxxxxxxx Xxxxx 000 X. 000xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000 XXX Xxxxxxxx, Xxxxxxxxxx 00000
ASIAN SOURCING CORPORATION
By: /s/ Handson Ho
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Handson Ho, President
Address for Notices:
000 X. Xxx Xxxxxxx Xxxxx
Xxxxxxx Xxx, XX 00000
[CERTAIN PORTIONS OF THIS DOCUMENT, AS INDICATED WITHIN, HAVE
BEEN OMITTED PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST]
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