Exhibit 10.3
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LAWYERS
AMENDED AND RE-STATED SERVICES AGREEMENT
NOVOGEN LIMITED
ABN 37 063 259 754
GLYCOTEX, INC.
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Telephone: ▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇ REF: BLM SJH 02 1389 1453
(C) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 2005
CONTENTS
1. INTERPRETATION 1
1.1 Definitions 1
1.2 Rules for interpreting this document 4
1.3 Business Days 5
2. APPOINTMENT 5
2.1 Appointment 5
2.2 Nature of appointment 5
3. NOVOGEN'S OBLIGATIONS 5
3.1 Services 5
3.2 Sub-contracting and consultants 6
3.3 Appropriate personnel 6
3.4 Performance of the Services 6
3.5 Judgment and skill 6
4. FEES FOR SERVICES 7
4.1 Consideration for Services 7
4.2 Invoices 7
4.3 Payment of invoices 7
4.4 Payments 7
4.5 Amendment of the Agreed Budget 7
4.6 Inspection of records 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 9
6. MATERIALS AND INTELLECTUAL PROPERTY RIGHTS 9
6.1 Materials and information 9
6.2 Intellectual Property Rights 9
6.3 Acknowledgment 9
7. CONFIDENTIAL INFORMATION 9
7.1 Confidentiality 9
7.2 Security 10
7.3 Exceptions to obligations of confidentiality 10
7.4 Public domain 10
8. REPRESENTATIONS AND WARRANTIES 10
8.1 Representations and warranties 10
8.2 Reliance on representations and warranties 11
8.3 Exclusion of conditions and warranties 11
8.4 Statutory warranties 11
9. DISPUTE RESOLUTION 12
9.1 Dispute resolution 12
9.2 Dispute Notice 12
9.3 Negotiation 12
9.4 Resolution of Disputes 12
9.5 Mediation 12
10. TERM AND TERMINATION 12
10.1 Term 12
10.2 Termination by Glycotex 13
10.3 Termination by Novogen 13
10.4 Consequences of termination 14
10.5 Survival and accrued rights 14
11. FORCE MAJEURE 14
11.1 Notice and suspension of obligations 14
11.2 Effort to overcome 14
11.3 Termination 15
12. NOTICES 15
13. AMENDMENT AND ASSIGNMENT 15
13.1 Amendment 15
13.2 Assignment 15
14. GENERAL 15
14.1 Governing law 15
14.2 Liability for expenses 16
14.3 Giving effect to this document 16
14.4 Waiver of rights 16
14.5 Operation of this document 16
14.6 Operation of indemnities 16
14.7 Consents 17
14.8 Exclusion of contrary legislation 17
14.9 Counterparts 17
ii.
SCHEDULE 1: CALCULATION OF FEES FOR SERVICES 18
ANNEXURE A: AGREED BUDGET 21
iii.
AMENDED AND RE-STATED SERVICES AGREEMENT
DATE September 2005
PARTIES
NOVOGEN LIMITED ABN 37 063 259 754 (NOVOGEN)
GLYCOTEX, INC., a company incorporated under the laws of Delaware, United
States of America, c/- ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ (GLYCOTEX)
RECITALS
A. Novogen has certain skills and expertise in relation to the discovery,
research and development of human therapeutics and their commercialisation.
B. Glycotex engaged Novogen to perform the Services on the terms and
conditions of a Services Agreement dated 30 April 2003.
C. The parties now amend and re-state the Services Agreement on the terms and
conditions of this document.
OPERATIVE PROVISIONS
1. INTERPRETATION
1.1 DEFINITIONS
The following definitions apply in this document.
AGREED BUDGET means the budget agreed in accordance with schedule 1 and
attached as Annexure A.
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 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.
COMMENCEMENT DATE means the date this document is 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) after 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.
CORPORATIONS ACT means the Corporations ▇▇▇ ▇▇▇▇ (Cth).
DISPUTE has the meaning given to that term in clause 9.1.
DISPUTE NOTICE has the meaning given to that term in clause 9.2.
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 ▇▇▇ ▇▇▇▇ (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.
2.
GLYCOTEX PRODUCT means any human therapeutic or pharmaceutical compound,
and any product or formulation containing any such compound, in relation to
which Glycotex or its subsidiaries has Intellectual Property Rights,
including the Licensed Products.
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) ▇▇▇ ▇▇▇▇ (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 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.
3.
LICENCE AGREEMENT means the document entitled "Amended and Re-stated
Technology Licence Agreement" between Novogen Research and Glycotex, dated
on or about the date of this document.
LICENSED PRODUCT has the meaning given to it in the Licence Agreement.
NOVOGEN RESEARCH means Novogen Research Pty Limited.
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.
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 Glycotex during the Term.
TERM means the term of this document, as determined under clause 10.
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.
4.
(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
2.1 APPOINTMENT
Glycotex agrees to engage Novogen to provide the Services and Novogen
agrees to provide the Services to Glycotex, on the terms and conditions of
this document.
2.2 NATURE OF APPOINTMENT
(a) Novogen's engagement to provide the Services is as an independent
contractor. 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.
(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.
3. NOVOGEN'S OBLIGATIONS
3.1 SERVICES
Novogen shall perform the following services in accordance with this
document as Glycotex reasonably requests from time to time during the Term,
having regard to the Agreed Budget:
(a) Novogen shall assist and advise Glycotex and its subsidiaries
generally on all aspects of research, development and
commercialisation of Glycotex Products;
5.
(b) Novogen shall provide company secretarial, marketing, finance,
logistics administrative and managerial support to Glycotex and its
subsidiaries;
(c) Novogen shall plan, conduct, direct, monitor and supervise
pre-clinical and clinical trials of Glycotex Products;
(d) Novogen shall provide scientific and technical advice on management of
pre-clinical and clinical research programs undertaken by Glycotex and
its subsidiaries in relation to Glycotex Products and shall manage
such research programs; and
(e) Novogen shall provide to Glycotex and its subsidiaries access to
records relating to, and persons involved in the research and
development of Licensed Products and any clinical trials conducted or
commenced before the Commencement Date.
3.2 SUB-CONTRACTING AND CONSULTANTS
(a) Novogen shall not, without the prior written consent of Glycotex,
sub-contract the provision of any part of the Services to any person
other than its subsidiaries (excluding Glycotex).
(b) If at any time during the Term any person is under any obligation to
Novogen or its subsidiaries (other than Glycotex) to provide services
or perform obligations to persons including Glycotex, which services
or obligations include research, development or commercialisation of
Glycotex Products, then Novogen shall procure that that person
provides those services to Glycotex.
3.3 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 qualifications and experience to provide the
Services, having regard to the nature of the Services.
3.4 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 Glycotex and its
subsidiaries from time to time during the Term.
3.5 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.
6.
4. FEES FOR SERVICES
4.1 CONSIDERATION FOR SERVICES
In consideration of the performance by Novogen of the Services, Glycotex
shall pay, in accordance with clause 4.3:
(a) services fees monthly in arrears in accordance with the 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 the Services.
4.2 INVOICES
Within 7 days of the end of each month, Novogen shall each render to
Glycotex a written invoice for payment for all Services provided by Novogen
in that month, which shall contain the amount payable for the Services in
that month calculated in accordance with schedule 1.
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 in writing.
4.5 AMENDMENT OF THE AGREED BUDGET
Each party shall inform the other party promptly upon becoming aware of any
circumstance by virtue of which the estimates and assumptions on which the
Agreed Budget was based are no longer accurate or applicable and the
parties may amend the Agreed Budget by agreement from time to time during
the Term having regard to any such circumstance.
4.6 INSPECTION OF RECORDS
Glycotex 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 Agreed Budget.
For the purposes of that inspection and determination, Glycotex'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 Glycotex's authorised
representatives such assistance as is necessary, including by providing
access to facilities, hardware, software and documents, to enable that
inspection and determination.
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 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 Glycotex 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
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 must issue a tax
invoice (or an adjustment note) to Glycotex for any supply for which
Novogen 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 must refund to Glycotex any overpayment by Glycotex for GST, but
Novogen need not refund to Glycotex any amount for GST paid to the
Commissioner of Taxation unless Novogen has received a refund or credit of
that amount.
5.5 GST WHERE GLYCOTEX SUPPLIES NOVOGEN
If Glycotex must pay GST for anything provided or supplied by Glycotex
under this document, Novogen must pay to Glycotex an amount equal to that
GST in exactly the same way as Glycotex must so do for any GST Novogen must
pay, and this clause 5 applies to that GST as if Glycotex was Novogen, and
Novogen was Glycotex.
6. MATERIALS AND INTELLECTUAL PROPERTY RIGHTS
6.1 MATERIALS AND INFORMATION
Novogen acknowledges that all materials and information made available by
Glycotex to Novogen in the performance of the Services remain the property
of Glycotex.
6.2 INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights created or developed by or on behalf of
Novogen and its subsidiaries in the performance of the Services vest
exclusively in Glycotex immediately upon their creation, and by this
document Novogen assigns to Glycotex absolutely and as beneficial owner its
entire right and title to and interest in all such Intellectual Property
Rights.
6.3 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 (other than
Glycotex) do not, represent to any person that it or they have any such
Intellectual Property Rights.
7. CONFIDENTIAL INFORMATION
7.1 CONFIDENTIALITY
Each party must:
(a) keep and maintain all Confidential Information of the other party
strictly confidential;
(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.
9.
7.2 SECURITY
For the purposes of clause 7.1, 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.
7.3 EXCEPTIONS TO OBLIGATIONS OF CONFIDENTIALITY
The obligations in clauses 7.1 and 7.2 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.
7.4 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.
8. REPRESENTATIONS AND WARRANTIES
8.1 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 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;
10.
(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.
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 clause 8.1.
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.
8.4 STATUTORY WARRANTIES
If legislation implies in this document any condition or warranty and that
legislation avoids of 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:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
11.
9. DISPUTE RESOLUTION
9.1 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 9, except where the
party seeks urgent interlocutory relief.
9.2 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).
9.3 NEGOTIATION
Upon receipt by a party of a Dispute Notice, Novogen and Glycotex must
procure that their Managing Directors and President respectively meet to
endeavour to resolve the Dispute expeditiously by negotiation.
9.4 RESOLUTION OF DISPUTES
If the parties have not resolved the Dispute under clause 9.3 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.
9.5 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.
10. TERM AND TERMINATION
10.1 TERM
The rights and obligations of the parties under this document begin on the
Commencement Date and end on the earlier of:
12.
(a) the date of termination in accordance with this clause 10; and
(b) the twelfth anniversary of the Commencement Date,
or such later date as the parties agree in writing.
10.2 TERMINATION BY GLYCOTEX
Glycotex may terminate this document at any time:
(a) on three month's written notice to Novogen;
(b) immediately if Novogen 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;
(c) on 21 days written notice if Novogen 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 is involved in an Insolvency Event; or
(ii) 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.
10.3 TERMINATION BY NOVOGEN
Novogen 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'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 Glycotex 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 in Control of Glycotex without Novogen's
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.
13.
10.4 CONSEQUENCES OF TERMINATION
Upon expiry or termination of this document for any each party must
immediately return to the other party or destroy at its direction:
(a) all Confidential Information of the other party; and
(b) all materials, documents and other records containing, referring or
relating to any Confidential Information of the other party,
in its possession, custody or power.
10.5 SURVIVAL AND ACCRUED RIGHTS
Upon termination under this clause 10, 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, 7, 8.3, 9, 12 and 14
(except clause 14.3) and this clause 10, which survive termination.
11. FORCE MAJEURE
11.1 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 Force
Majeure Event as long as the Force Majeure Event continues.
11.2 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.
14.
11.3 TERMINATION
If a Force Majeure Event occurs for more than 30 days, either party may
terminate this document by giving at least 21 days notice to the other
party.
12. 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) A person's address and fax number are those set out below, or as the
person notifies the sender:
NOVOGEN
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax number: Int + 612 9878 0055
Attention: Managing Director
GLYCOTEX
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax number: Int + 612 9878 0055
Attention: President
13. AMENDMENT AND ASSIGNMENT
13.1 AMENDMENT
This document can only be amended, supplemented, replaced or novated by
another document signed by the parties.
13.2 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.
14. GENERAL
14.1 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.
14.2 LIABILITY FOR EXPENSES
Each party must pay its own expenses incurred in negotiating, executing,
stamping and registering this document.
14.3 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.
14.4 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.
14.5 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.
14.6 OPERATION OF INDEMNITIES
(a) Each indemnity in this document survives the expiry or termination of
this document.
(b) A party may recover a payment under an indemnity in this document
before it makes the payment in respect of which the indemnity is
given.
16.
14.7 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.
14.8 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.
14.9 COUNTERPARTS
This document may be executed in counterparts.
17.
SCHEDULE 1
CALCULATION OF FEES FOR SERVICES
The fees payable by Glycotex to Novogen for Services provided to Glycotex 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 Glycotex, 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 Glycotex 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 Glycotex
under this document.
2. Each budget estimate prepared under paragraph 1 shall contain:
(a) a list of all employees and consultants who Novogen expects will
provide Services to Glycotex 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 to Glycotex 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);
18.
(h) a direct asset usage charge in relation to non-production assets
directly attributable to Glycotex's business, calculated on the basis
of depreciation, amortisation and repairs and maintenance of those
assets; and
(i) a calculation of the budget estimate of fees payable by Glycotex 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, Glycotex
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 a 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 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 Glycotex to Novogen per month in consideration of the
performance of the Services shall be one twelfth of the budget set out in
Annexure A.
19.
EXECUTED as an agreement.
EXECUTED by NOVOGEN LIMITED:
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇ ▇▇▇ Erratt
------------------------------------- ----------------------------------------
Signature of director Signature of director/secretary
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ERRATT
------------------------------------- ----------------------------------------
Name Name
EXECUTED by GLYCOTEX, INC.:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------- ----------------------------------------
Signature of director Signature of director/secretary
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------- ----------------------------------------
Name Name
20.
ANNEXURE A
AGREED BUDGET
21.
Annexure A
(Novogen Service Agreement)
GLYCOTEX, INC.
BUDGET
Year Ended June 30, 2006
TOTAL
(In thousands)
Operating expenses:
Research and devolpment (974)
Selling, general and administrative (111)
---------
Total operating expenses (1,085)
=========
Loss from operations (1,085)
Income tax expense -
---------
Net loss arising during development stage $ (1,085)
=========
