EXHIBIT 4(a)(1)


 





 


Exclusive Licence Agreement


 


PharmaSynth Pty Ltd


PharmaSynth


 


Global Transbiotech Inc


GTB


 


Clayton Utz


Lawyers


Level 28 Riparian Plaza  71 Eagle Street  Brisbane 
QLD  4000  Australia


GPO Box 55  Brisbane 
QLD  4001


T + 61 7 3292 7000  F + 61 7 3221 9669


 


www.claytonutz.com


 


Our reference
15314/12192/80092067


 

















 


Table of
contents


 


	
  1.

  	
  Definitions and interpretations

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
  Definitions

  	
  1

  
	
   

  	
  1.2

  	
  Interpretation

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Term of the agreement

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Licence of PharmaSynth IP

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Exclusive Licence

  	
  4

  
	
   

  	
  3.2

  	
  Use by PharmaSynth

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Developed IP

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Developed IP Owned by GTB

  	
  5

  
	
   

  	
  4.2

  	
  Rights to IP developed by PharmaSynth

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Sublicensing

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Liability for sublicensee

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  Licence fees

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  Royalties

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Royalties where valid Patent

  	
  6

  
	
   

  	
  7.2

  	
  Royalties where no Patent

  	
  7

  
	
   

  	
  7.3

  	
  Reports

  	
  7

  
	
   

  	
  7.4

  	
  Sales of Products outside the Territory

  	
  7

  
	
   

  	
  7.5

  	
  Accrual and payment of royalties

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  GTB to Exploit

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  GTB to produce Products

  	
  8

  
	
   

  	
  8.2

  	
  Commencement of Phase 3 Trial

  	
  8

  
	
   

  	
  8.3

  	
  Exploitation of Products

  	
  8

  
	
   

  	
  8.4

  	
  Quality

  	
  9

  
	
   

  	
  8.5

  	
  Notification of adverse event

  	
  9

  
	
   

  	
  8.6

  	
  Insurance

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  Protection of Intellectual
  Property

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Notification of infringement

  	
  9

  
	
   

  	
  9.2

  	
  Infringement of PharmaSynth IP

  	
  9

  
	
   

  	
  9.3

  	
  Maintenance of IP

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  Warranties and indemnities

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.1

  	
  PharmaSynth warranties

  	
  10

  
	
   

  	
  10.2

  	
  GTB warranties

  	
  10

  
	
   

  	
  10.3

  	
  Exclusion of warranties

  	
  11

  
	
   

  	
  10.4

  	
  GTB’s acknowledgments

  	
  11

  
	
   

  	
  10.5

  	
  PharmaSynth’s acknowledgements

  	
  11

  
	
   

  	
  10.6

  	
  GTB to indemnify PharmaSynth

  	
  11

  
	
   

  	
  10.7

  	
  PharmaSynth to indemnify GTB

  	
  12

  
	
   

  	
  10.8

  	
  Liability for costs of Infringement Claim

  	
  12

  
	
   

  	
  10.9

  	
  General mutual representations and warranties

  	
  12

  
	
   

  	
  10.10

  	
  Indemnities

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  Confidentiality

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.1

  	
  No use or disclosure

  	
  13

  
	
   

  	
  11.2

  	
  Further obligations

  	
  13

  



 


i

















 


	
   

  	
  11.3

  	
  Legal requirements

  	
  13

  
	
   

  	
  11.4

  	
  Return of Confidential Information

  	
  14

  
	
   

  	
  11.5

  	
  Retention for legal advice

  	
  14

  
	
   

  	
  11.6

  	
  Survival of clause

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
  Audit

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.1

  	
  Records

  	
  14

  
	
   

  	
  12.2

  	
  Audit

  	
  14

  
	
   

  	
  12.3

  	
  Security

  	
  15

  
	
   

  	
  12.4

  	
  Co-operation

  	
  15

  
	
   

  	
  12.5

  	
  Copies of materials

  	
  15

  
	
   

  	
  12.6

  	
  Costs of the Audit

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
  Termination

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.1

  	
  Reasons for termination by either party

  	
  15

  
	
   

  	
  13.2

  	
  Reasons for termination by PharmaSynth

  	
  15

  
	
   

  	
  13.2

  	
  Consequences of termination

  	
  15

  
	
   

  	
  13.3

  	
  Termination due to default by PharmaSynth

  	
  16

  
	
   

  	
  13.4

  	
  Accrued rights and survival

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
  Dispute resolution

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.1

  	
  Negotiation

  	
  16

  
	
   

  	
  14.2

  	
  Referral to arbitration

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
  Arbitration

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.1

  	
  Reference to arbitration

  	
  17

  
	
   

  	
  15.2

  	
  Award final and binding

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
  Force Majeure

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.1

  	
  Event of Force Majeure

  	
  17

  
	
   

  	
  16.2

  	
  Remedy of Force Majeure

  	
  17

  
	
   

  	
  16.3

  	
  Extension of Term

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  17.

  	
  Notices

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  18.

  	
  General

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.1

  	
  Governing law

  	
  19

  
	
   

  	
  18.2

  	
  Jurisdiction

  	
  19

  
	
   

  	
  18.3

  	
  Assignment

  	
  19

  
	
   

  	
  18.4

  	
  Amendments

  	
  19

  
	
   

  	
  18.5

  	
  Waiver

  	
  19

  
	
   

  	
  18.6

  	
  Further acts and documents

  	
  19

  
	
   

  	
  18.7

  	
  No representation or reliance

  	
  19

  
	
   

  	
  18.8

  	
  Expenses

  	
  19

  
	
   

  	
  18.9

  	
  Entire agreement

  	
  20

  
	
   

  	
  18.10

  	
  Sub-contracting

  	
  20

  
	
   

  	
  18.11

  	
  Relationship of the parties

  	
  20

  
	
   

  	
  18.12

  	
  Remedies cumulative

  	
  20

  
	
   

  	
  18.13

  	
  Severability of provisions

  	
  20

  
	
   

  	
  18.14

  	
  Change in control

  	
  20

  
	
   

  	
  18.15

  	
  Publicity

  	
  20

  
	
   

  	
  18.16

  	
  Counterparts

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1 -
  PharmaSynth IP

  	
  22

  



 


ii

















 


	
  Exclusive
  Licence Agreement made on

  	
  2009

  



 


Parties                                                                                         PharmaSynthPharmaSynth Pty Ltd, ABN 48 074 656 509, of 2806 Ipswich Road, Darra, QLD, Australia (“PharmaSynth”),
a wholly-owned subsidiary of Progen Pharmaceuticals Ltd


 


Global
Transbiotech, Inc of 3550 Wilshire Blvd., Suite 1747,
Los Angeles, CA 90010 USA (“GTB”)


 


Introduction


 


A.                                                   PharmaSynth
is the holder of patent and other intellectual property rights in a
multi-targeted cytostatic cancer therapeutic product known as PI-88, a mixture of highly sulfated,
monophosphorylated, mannose oligosaccharides.


 


B.                                                     GTB
is a developer, manufacturer and marketer of pharmaceutical products.


 


C.                                                     PharmaSynth
and GTB executed a Binding Term Sheet on 14 May 2009 under which the
parties agreed to negotiate an Exclusive Licence Agreement for the product
known as PI-88.


 


D.                                                    GTB
has had access to such information and personnel of PharmaSynth as requested by
GTB to enable it to carry out due diligence on the product known as PI-88.


 


E.                                                      GTB
has satisfied itself as to its ability to successfully exploit PI-88 if granted
a licence from PharmaSynth.


 


F.                                                      Pursuant
to the terms and conditions contained in this agreement, PharmaSynth licenses
GTB to develop, manufacture, use, sell, market and sublicense the product known as PI-88 in exchange for
the licence fees and royalties set out in this agreement.


 


Operative
provisions


 


1.                                                      Definitions and
interpretations


 


1.1                                               Definitions


 


The following definitions apply unless the context requires otherwise.


 


Affiliate means with
respect to a party, any corporation or other business entity directly or
indirectly controlling, controlled by or under common control with such party,
where control means possession of the power to direct, or cause the direction
of the management and policies of a corporation or other entity whether through
ownership of voting securities, by contract or otherwise and includes without
limitation any related body corporate of a party as defined under section 50 of
the Corporations Act 2001 (Cth).


 


Commencement Date means 1 July 2009,
or the data of the execution of a definitive version of this agreement if this
comes earlier.


 


Confidential Information means
all confidential and proprietary information, know how and trade secrets of a
party (including, without limitation, the terms of this agreement, all business
or financial information, all information, biological materials and samples
relating to any Product, medical chemical and other scientific data, processes
and analytic methodology used in the development, testing, clinical trials and
analysis of any Product, and packaging, manufacturing, advertising and
marketing data relating to the Product but excluding any information which:


 


(a)                                                   was in the public domain at the time of its
disclosure;


 


1

















 


(b)                                                  came into the hands of the receiving party by lawful
means and without breach of any obligation of confidentiality by any third
party; or


 


(c)                                                   was in fact known to the receiving party prior to its
disclosure to that party.


 


End User means a third
party which is supplied a Product by GTB or its Affiliates or its sublicensees
but does not distribute, resell or otherwise supply the Product to others
(other than patients) in all countries in the Territory except for Mainland
China, where the End User may be, as the case may be, a distributor to whom GTB
or its Affiliates or its sublicensees  sells the
Product.


 


Event of Insolvency
means:


 


(a)                                                   filing by a Party in any court pursuant to any statute
of a petition in bankruptcy or insolvency, or for reorganization or
arrangement, or for the appointment of a receiver of all or a portion of the
Party’s property;


 


(b)                                                  the filing against a Party of any such petition, or
the commencement of a proceeding for the appointment of a trustee, receiver or
liquidator for the Party, or of any of the property of the Party, or a
proceeding by any governmental authority for the dissolution or liquidation of
the Party, if such proceeding shall not be dismissed or trusteeship
discontinued within thirty (30)  days after
commencement of such proceeding or the appointment of such trustee or receiver;


 


(c)                                                   the making by a Party of an assignment for the benefit
of creditors; or


 


(d)                                                  a Party is or admits in writing that it is, or is
taken under any applicable law to be, insolvent or unable to pay its debts.


 


Exploit includes:


 


(a)                                                   in respect of a product - to make, hire, market, sell
or otherwise dispose of it, use it, import or export it, modify, improve or
keep it for the purpose of doing any of those things; or


 


(b)                                                  in respect of a method or process - use the method or
process, improve or modify the process or do any act mentioned in paragraph (a) in
respect of a product resulting from such use,


 


and Exploitation has a corresponding
meaning.


 


Force Majeure means an act of
God, strike, lockout or other interference with work, war (declared or
undeclared), blockade, disturbance, lightning, fire, earthquake, storm, flood,
explosion, governmental or quasi governmental restraint, expropriation,
prohibition, intervention, direction or embargo, unavailability or delay in
availability of equipment or transport, inability or delay in obtaining
governmental or quasi governmental approvals, consents, permits, licences,
authorities or allocations, and any other cause, whether of the kind
specifically enumerated above or otherwise which is not reasonably within the
control of the party affected but does not include general economic conditions.


 


Government Agency  means any government or governmental,
semi-governmental, administrative, fiscal or judicial body, department,
commission, authority, tribunal, agency or entity including, without
limitation, the Unites States Food and Drug Administration.


 


GTB Developed IP means all Intellectual
Property developed or otherwise coming into existence directly as a result of
or in the course of GTB carrying out this agreement (including any new patents)
but, for the avoidance of doubt, excludes all PharmaSynth IP.


 


2
















 


Intellectual Property  includes
all present and future rights in relation to copyright, industrial and
intellectual property rights of whatever nature in whatever country, including
without limitation all rights in relation to Confidential Information, inventions,
innovations, plant varieties, registered and unregistered patents, registered
and unregistered trade marks (including service marks), registered designs, and
circuit layouts, and all other rights resulting from intellectual activity in
the industrial, scientific, literary or artistic fields whether created before
or after the Commencement Date and whether existing in Australia or otherwise.


 


Net Sales  means
the full invoice price plus the value of any other consideration paid or given
by any person (including by contra arrangements, product swaps or other
arrangements) for Products sold by GTB, its Affiliates and sublicensees to End
Users less:


 


(a)                                                  any
discounts given to End Users;


 


(b)                                                     sales and excise taxes, customs duty, or  other compulsory payments to Government
Agencies, to the extent included in the invoice price,  provided they are actually paid or deducted
and relate to the sale; and


 


(c)                                                  credits given to End Users for rejects or returns of
Products.


 


Products means any
products produced from or based on the PharmaSynth IP, including improvements,
modifications and variations made by GTB or its Affiliates during the Term.


 


PharmaSynth IP means the
Intellectual Property owned or licensed by PharmaSynth which is necessary to
Exploit the product known as PI-88 and includes the patents and patent
applications set out in Schedule 1 and the Confidential Information of
PharmaSynth related to those patents and patent applications.


 


Territory  means
the world excluding Australia.


 


Term means the period
commencing on the Commencement Date and expiring 15 years after the
Commencement Date, unless earlier terminated in accordance with this agreement.


 


1.2                                               Interpretation


 


In this agreement:


 


(a)                                headings are for convenience only and
do not affect interpretation,


 


and unless the context indicates
a contrary intention:


 


(b)                               an obligation or liability assumed by,
or a right conferred on, 2 or more persons binds or benefits them jointly and
severally;


 


(c)                                “person”
includes an individual, the estate of an individual, a corporation, an
authority, an association or a joint venture (whether incorporated or
unincorporated), a partnership and a trust;


 


(d)                               a reference to a party includes that
party’s executors, administrators, successors and permitted assigns, including
persons taking by way of novation and, in the case of a trustee, includes a
substituted or an additional trustee and further includes any person claiming
on behalf of or under or through a party to this agreement;


 


(e)                                a reference to a document (including
this agreement) is to that document as varied, novated, ratified or replaced
from time to time;


 


3

















 


(f)                                  a reference to a statute or statutory
provision includes a statutory modification or re-enactment of it or a
statutory provision substituted for it, and each ordinance, by-law, regulation,
rule and statutory instrument (however described) issued under it;


 


(g)                               a word importing the singular includes
the plural (and vice versa), and a word indicating a gender includes every
other gender;


 


(h)                               a reference to a party, clause,
schedule, exhibit, attachment or annexure is a reference to a party, clause,
schedule, exhibit, attachment or annexure to or of this agreement, and a
reference to this agreement includes all schedules, exhibits, attachments and
annexures to this agreement;


 


(i)                                   if a word or phrase is given a defined
meaning, any other part of speech or grammatical form of that word or phrase
has a corresponding meaning;


 


(j)                                   “includes”
in any form is not a word of limitation; and


 


(k)                                a reference to “$” or “dollar”
is to US currency.


 


2.                                                      Term of the agreement


 


This agreement commences on the Commencement Date and continues for the
Term.


 


3.                                                      Licence of PharmaSynth
IP


 


3.1                                               Exclusive Licence


 


(a)                                                   Subject to the terms of this agreement,
PharmaSynth hereby grants and GTB accepts, an exclusive licence, including the
right to grant sublicences, to Exploit the PharmaSynth IP in the Territory
during the Term.


 


(b)                                                  To the extent that the PharmaSynth IP
includes a patent, the licence granted under clause 3.1(a) ceases in
respect of that patent on the expiry of that patent and the expiry of any
patent extensions.


 


(c)                                                   After the Commencement Date,
PharmaSynth will, at the request of GTB, provide samples of any Products it has
which are relevant to the Field, including any intermediate forms and copies of
the Products and any related Confidential Information.


 


(d)                                                  For the purpose of assisting GTB to
carry out its clinical trial PharmaSynth will if requested by GTB:


 


(i)                                                     Supply
two (2) kg of the PI-88 bulk Active Pharmaceutical Ingredient (API) at no
cost to GTB;


 


(ii)                                                  At
the request of GTB, transfer ownership to GTB of a minimum of 20,000 vials of
pre-filled lyophilised PI-88 (the equivalent of approximately 5 kg bulk API of
PI-88), each containing 210 mg of PI-88 and a minimum of 20,000 vials of the
lyophilised placebo, each containing 210 mg of the placebo, a minimum of 40,000
syringes prefilled with 1 ml of saline, associated needles and product
packaging. Such GTB request of PharmaSynth to occur within 60 (sixty) days of
the Execution of this Agreement. If GTB requests this transfer, the costs
associated with the storage and further handling, including possible shipment
of the material, upon the issue of this GTB request is assumed 


 


4

















 


by GTB. The material is stored at Fischer Clinical in Allentown,
Pennsylvania, USA.


 


(iii)                                               supply
up to a further 30 kg of API at $17,500 per kg; and


 


(iv)                                              supply
any further API at $25,000 per kg.


 


GTB to pay for the API within 30 days of the request by GTB.


 


(e)                                                   PharmaSynth will not sell Products
relevant to the Field to End Users in the Territory nor supply Products
relevant to the Field to any person who PharmaSynth has reasonable grounds to
believe is likely to export the Products into the Territory.


 


(f)                                                     All enquiries PharmaSynth receives in
respect of Products relevant to the Field to be delivered to End Users in the
Territory will be referred to GTB.


 


3.2                                               Use by PharmaSynth


 


(a)                                                   For the avoidance of doubt, this
agreement does not limit PharmaSynth’s ability to Exploit the PharmaSynth IP
outside the Territory.


 


(b)                                                  GTB and its Affiliates will not:


 


(i)                                                     sell
Products to End Users outside the Territory; or


 


(ii)                                                  supply
Products to any third party who PharmaSynth has reasonable grounds to believe
is likely to export the Products outside the Territory.


 


(c)                                                   PharmaSynth may require GTB to take all
reasonable actions within its legal rights and powers (including conducting
litigation) to cause third parties to cease such exportation or use.


 


(d)                                                  All enquiries GTB receives in respect
of Products to be delivered to End Users outside the Territory will be referred
to PharmaSynth.


 


4.                                                      Developed IP


 


4.1                                               Developed IP Owned by
GTB


 


The parties acknowledge that all right, title and interest in and to
all of the GTB Developed IP is owned by GTB.


 


If, in the course of commercial development efforts related to the
Product outside the territory, PharmaSynth can negotiate with GTB to access GTB
Developed IP as relates to the Product.


 


4.2                                               Rights to IP developed
by PharmaSynth


 


(a)                                                   If in the course of complying with its
obligations under this agreement, PharmaSynth develops modifications to the
Product and the Product IP which result in the creation of new Intellectual
Property, then GTB will have a right of first refusal to Exploit that
Intellectual Property on terms specified by PharmaSynth.


 


(b)                                                  If GTB does not exercise its first
right of refusal within 30 days of receiving the terms provided by PharmaSynth
pursuant to 4.2(a) , PharmaSynth may license that Intellectual Property to
a third party on terms which are no more favourable than those offered to GTB
under clause 4.2(a).


 


5

















 


(c)                                                   If GTB exercises its right of first
refusal, the parties will either vary this agreement or enter into a new
agreement, in each case to reflect the terms offered under clause 4.2(a).


 


4.3                                                   For
clarification, with regards to any non-clinical and clinical data that may be
developed by the Parties during the Term, the Parties agree to share that data
freely, with no additional obligation, and make it available to the other
Party.


 


5.                                                      Sublicensing


 


5.1                                               Liability for
sublicensee


 


GTB acknowledges and agrees that the use of a sublicensee does not
relieve GTB of any of its obligations, duties or limitations under this
agreement and any act or omission of a sublicensee will have the same
consequences or effect as if such action or omission was GTB’s own.


 


6.                                                      Licence fees


 


In consideration of the licence granted to GTB under this agreement, in
respect of each Product GTB will pay a total of $5,000,000 to PharmaSynth the following
licence fees within 30 days of the occurrence of the following events:


 


(a)                                                   a payment of $500,000 after the approval by any Government Agency
within the Territory to commence the first Phase 3 or Pivotal Registration
Clinical Trial Protocol of a Product;


 


(b)                                                  a payment of $500,000 after the commencement of the first Phase 3
or Pivotal Registration Clinical Trial for a Product;


 


(c)                                                   a payment of $1,000,000 after the completion of the first Phase 3 or
Pivotal Registration Clinical Trial for a Product;


 


(d)                                                  a payment of $1,000,000 after the submission of a Product to any Government Agency for regulatory
approval for use in the first  country
in the Territory; and


 


(e)                                                   a payment of $2,000,000 after a relevant Government Authority first
giving approval for use of a Product.


 


Payment will be in US dollars to
a US dollar account in Australia, the details of which are as notified by
PharmaSynth to GTB from time to time.


 


7.                                                      Royalties


 


7.1                                               Royalties where valid
Patent


 


If GTB or its Affiliates or its sublicensees sell Product into a
country where there is a valid enforceable and unexpired patent(s) or patent extension(s) or patent application(s) active at the time of commencement, in
respect of some or all of the Product or its method of manufacture, GTB will
pay the following royalties:


 


(a)                                                   8% of the Net Sales made by GTB and its
Affiliates and its sublicensees from that country, until Net Sales in the
Territory during each one-year annual period exceed $500,000,000 per year;


 


6





















 


(b)                                                  9% of the Net Sales made by GTB and its
Affiliates and its sublicensees from that country, if Net Sales in the
Territory during each one-year annual period exceed $500,000,000 per year but are less than or equal to
$1,000,000,000 per year, assessed on the net sales; and


 


(c)                                                   10% of the Net Sales made by GTB and
its Affiliates and its sublicensees from that country if Net Sales in the
Territory during the Term exceed $1,000,000,000 per year, assessed on the net
sales.


 


7.2                                               Royalties where no
Patent


 


If GTB or its Affiliates or its sublicensees sell Product into a
country where there is no or there is no longer any patent application,
registered patent, or patent extension in respect of the Product or its method
of manufacture, GTB will pay the following royalties:


 


(a)                                                   4% of the Net Sales made by GTB and its
Affiliates and its sublicensees from that country, until Net Sales in the
Territory during each one-year annual period exceed $500,000,000 per year;


 


(b)                                                  5% of the Net Sales made by GTB and its
Affiliates and its sublicensees from that country, if Net Sales in the
Territory during each one-year annual period exceed $500,000,000 per year but are less than or equal to
$1,000,000,000 per year, assessed on the net sales; and


 


(c)                                                   6% of the Net Sales made by GTB and its
Affiliates and its sublicensees from that country if Net Sales in the Territory
during each one-year annual period exceed $1,000,000,000 per year,
assessed on the net sales.


 


7.3                                               Reports


 


Within 14 days of the anniversary of each Commencement Date, GTB will
send PharmaSynth a report setting out:


 


(a)                                                   a summary of progress being made to
obtain Government Agency approvals in the Territory;


 


(b)                                                  the details of royalties, fees or other
amounts received for each month of the previous year from sublicensees; and


 


(c)                                                   the details of the total sales in each
country (including a breakdown of sales by GTB, Affiliates and sublicensees)
and the Net Sales in each country for each month of the previous year.


 


7.4                                               Sales of Products
outside the Territory


 


If GTB, its Affiliates or sublicensees sell any Products outside the
Territory, the royalty payable to PharmaSynth is the full amount of any Net
Sales for those Products.


 


If PharmaSynth,
its Affiliates or sublicensees sell any Products inside the Territory, the
royalty payable to GTB  will be the full amount of any
Net Sales for those Products.


 


7.5                                               Accrual and payment of
royalties


 


(a)                                                   All royalties accrue when
actually received from an End User by GTB or its sublicensee.


 


7





















 


(b)                                                  GTB will pay all royalties due to
PharmaSynth under this clause 7 on a 6 monthly basis commencing on the
Commencement Date, each payment to be made within 30 days of the end of the
relevant 6 monthly period, with the first 6-month period beginning on the first
day of the month following the Commencement Date.


 


(c)                                                   Payment will be in US dollars to a USA
bank account, the details of which are as notified by PharmaSynth to GTB from
time to time.


 


8.                                                      GTB to Exploit


 


8.1                                               GTB to produce
Products


 


(a)                                                   GTB is free to establish any technical,
pre-clinical or clinical program at GTB’s expense, for the purposes of
preparing any new drug application using the PharmaSynth IP with any Government
Agency in the Territory.


 


(b)                                                  GTB will use reasonable efforts to
carry out, at its own expense, all product development, including without
limitation, regulatory and clinical work, testing, or studies relating to
Products, reasonably required to obtain all regulatory approvals needed to
Exploit the Products in the Territory.


 


(c)                                                   GTB will use its reasonable efforts to
file, prosecute and maintain during the Term, all necessary and appropriate
applications, submissions and filings to the appropriate Government Agency, to
obtain approval to Exploit the Products in each country within the Territory.


 


(d)                                                  GTB will advise PharmaSynth immediately
on obtaining any approval from a Government Authority in respect of a Product.


 


(e)                                                   PharmaSynth will provide reasonable
assistance to GTB to the extent of making available, without charge, Technical
Personnel to assist GTB in both technical and clinical issues, and in making
any necessary submissions or filings for approvals in each country within the
Territory, including provision of relevant documentation which is in the
possession of PharmaSynth for submissions, applications or filings, but
PharmaSynth will not be obliged to commit to any particular expenditure in
providing such assistance..


 


8.2                                               Commencement of Phase
3 Trial


 


If GTB has not commenced a Phase 3 or Pivotal Registration Clinical
Trial within 9 months of the Commencement Date, PharmaSynth may at any time
thereafter immediately terminate this agreement by written notice to GTB.


 


8.3                                               Exploitation of
Products


 


If GTB has not commenced the Exploitation of a Product in a country in
which a valid enforceable and unexpired patent application(s), patent(s) or
patent extension(s) covering the Product exists  within the Territory within five (5) years of the
Commencement Date, then PharmaSynth may by written notice, advise GTB that
unless it commences Exploitation of a Product in that country within 6 months
(or such longer period set out in the notice), that country will be removed
from the definition of Territory in this agreement.  A notice may include more than one country
and will be taken to be a notice in respect of each country specified in the
notice.  Should Exploitation not occur
during that 6 month or longer stipulated period, the country will be removed
from the Territory.


 


8

















 


8.4                                               Quality


 


GTB is responsible for maintaining commercially acceptable quality
control standards in all manufacturing related to a Product, including meeting
the manufacturing standards required by any Government Agency and good
manufacturing practice.


 


8.5                                               Notification of
adverse event


 


Each party agrees to report to the other within 3 days of receipt of
the information, any serious adverse event which is reported to occur as a
result of the use of the Products.  Such
events must be reported in as much detail as possible, whether or not there is
proof of a causal connection between events and use of Products.  A serious adverse event includes any
experience relating to the Products which is reasonably regarded to be
medically significant.


 


8.6                                               Insurance


 


GTB will procure and maintain at its own expense for the Term, product
liability insurance in the amount of not less than $10,000,000, insuring GTB from and against all loss
arising from or incidental to the Exploitation (commercial manufacturing and
marketing) of the commercial
Products.


 


9.                                                      Protection of
Intellectual Property


 


9.1                                               Notification of
infringement


 


Each party shall promptly give the other notice of:


 


(a)                                                   any claim or allegations that the
exercise of the rights under the agreement constitute an infringement of the
rights of any third party; and


 


(b)                                                  any third party’s infringement or
threatened infringement of the PharmaSynth IP or the Developed IP,


 


of which it becomes aware.


 


9.2                                               Infringement of
PharmaSynth IP


 


(a)                                                   PharmaSynth has the sole right to
determine what action should be taken in respect of any infringement of
PharmaSynth IP, and GTB will cooperate in the conduct of any action brought by
PharmaSynth.  PharmaSynth shall bear all
the costs and expenses of any action it takes.


 


(b)                                                  If PharmaSynth does not bring suit
against a third party who is infringing the PharmaSynth IP in the Territory,
then GTB may give notice in writing to PharmaSynth that it wishes to commence
action.  If PharmaSynth does not advise
that it will commence action within 14 days of that notice, GTB may elect to
bring action.


 


(i)                                                     If
GTB brings an action against a third party, it will do so at its own cost and
expense and within 6 months of the notice given under clause 9.2(b).


 


(ii)                                                  In
exercising its rights under clause 9.2(b)(i), GTB must ensure that it does not
perform any acts or omissions that in any way adversely effect:


 


A.                                                   the
validity of any PharmaSynth IP;


 


B.                                                     the
reputation of PharmaSynth as the owner of the PharmaSynth IP.


 


9





















 


(iii)                                               All
costs and expenses (including attorney’s fees) of any actions or proceedings taken
by GTB (including where PharmaSynth is joined as a party) will be borne
exclusively by GTB, and, in such a case, GTB shall retain the damages and other
remedies as relate to the Territory received from the infringing party.


 


(c)                                                   GTB indemnifies PharmaSynth from and
against any costs, fees, damages or accounts of profits awarded against
PharmaSynth in any action commenced by GTB under this clause 9.2.


 


9.3                                               Maintenance of IP


 


(a)                                                   GTB will during the Term take all
reasonable and necessary steps and pay all necessary expenses to obtain
registration of Intellectual Property relating to any improvements made by or
on behalf of PharmaSynth to PharmaSynth IP in any country in the Territory in
which PharmaSynth IP is registered as at the Commencement Date.


 


(b)                                                  GTB will take all reasonable steps and
pay all necessary expenses to prosecute any patent application in the Territory
in respect of PharmaSynth IP.


 


(c)                                                   GTB will during the Term take all
reasonable steps and pay all necessary expenses to maintain for the full life
of, and any extension that may be available, all Intellectual Property which is
PharmaSynth IP in the Territory.


 


(d)                                                  GTB may, in consultation with
PharmaSynth, file on behalf of and as agent for PharmaSynth all applications
and filings and take all actions necessary to obtain the benefits of
registration, and PharmaSynth will sign any authorisations and instruments
reasonably requested by GTB to enable GTB to comply with its obligations under
this clause 9.2.


 


(e)                                                   Should GTB not comply with its obligations
under this clause 9.2, PharmaSynth is hereby appointed as agent for GTB to
perform all such obligations on GTB’s behalf. 
Where PharmaSynth performs an obligation of GTB, the cost and expense of
such performance is due and payable by GTB to PharmaSynth and GTB is not
relieved from its failure to perform the obligation.


 


10.                                               Warranties and
indemnities


 


10.1                                        PharmaSynth warranties


 


PharmaSynth warrants and represents to GTB that to the best of
PharmaSynth’s knowledge:


 


(a)                                                   it is either the sole and beneficial
owner or the exclusive licensee of the PharmaSynth IP and that the PharmaSynth
IP is not encumbered nor licensed to a third party in any way inconsistent with
the exploitation of the rights granted pursuant to this agreement; and


 


(b)                                                  it is entitled to grant the rights
contained in this agreement in relation to the PharmaSynth IP to GTB.


 


10.2                                        GTB warranties


 


GTB warrants and represents to PharmaSynth that:


 


(a)                                                   to the best of GTB’s knowledge it will
be is either the sole and beneficial owner or the exclusive licensee of the GTB
Developed IP and that the GTB Developed IP will not 


 


10

















 


be encumbered nor licensed to a
third party in any way inconsistent with the exploitation of the rights granted
pursuant to this agreement;


 


(b)                                                  to the best of GTB’s knowledge it is
entitled to grant the rights contained in this agreement in relation to the
Developed IP to PharmaSynth; and


 


(c)                                                   it has and will maintain adequate
insurance in accordance with prudent business practice and, to the best of GTB’s
knowledge, it has not failed to comply with any of the conditions contained in an adequate insurance policy.


 


10.3                                        Exclusion of
warranties


 


Except for the express warranties in this agreement, to the full extent
permitted by law, any conditions or warranties imposed by legislation
applicable to this agreement are hereby excluded.


 


10.4                                        GTB’s acknowledgments


 


GTB hereby acknowledges and agrees that:


 


(a)                                                   PharmaSynth has not made and does not
by entering into this agreement make any representations or give any warranties
other than those set out in this clause regarding the suitability of
PharmaSynth IP or GTB Developed IP for any purpose; and


 


(b)                                                  it will not knowingly do, or assist any
third party to do, anything to imperil or challenge the validity of, or
PharmaSynth’s ownership of, any of the PharmaSynth IP.


 


10.5                                        PharmaSynth’s
acknowledgements


 


PharmaSynth hereby acknowledges and agrees that:


 


(a)                                                   GTB has not made and does not by
entering this agreement make any representations or give any warranties other
than those set out in this clause regarding the suitability of the GTB
Developed IP for any purpose; and


 


(b)                                                  it will not knowingly do, or assist any
third party to do, anything to imperil or challenge the validity of, or
ownership by GTB of, any of the GTB Developed IP.


 


10.6                                        GTB to indemnify
PharmaSynth


 


GTB shall defend, indemnify and hold harmless PharmaSynth, its
officers, employees and agents from and against all actions, suits, claims,
proceedings, causes of action, judgments or demands (including those brought by
third parties) which may be brought against it or them, whether on their own or
jointly with PharmaSynth and whether at common law, in equity or pursuant to
statute or otherwise, in respect of any loss, death, injury, illness or damage
(whether personal or property) which arises out of:


 


(a)                                                   any Exploitation of any of the
PharmaSynth IP or the GTB Developed IP in the Territory;


 


(b)                                                  any Product or use of any Product;


 


(c)                                                   a breach of this agreement by GTB or
its Affiliates;


 


(d)                                                  the failure of any representation or
warranty of GTB set forth in this agreement; or


 


(e)                                                   the negligence or wilful misconduct of
GTB or its Affiliates or their employees, agents or officers,


 


11
















 


except in each
case to the extent any such claim results or arises from breach by PharmaSynth
of any term of this agreement or the negligence or wilful misconduct of
PharmaSynth or any of its employees, agents or officers.


 


10.7                                        PharmaSynth to
indemnify GTB


 


PharmaSynth
shall defend, indemnify and hold harmless GTB, its officers, employees and
agents from and against all actions, suits, claims, proceedings, causes of
action, judgments or demands (including those brought by third parties) which
may be brought against it or them, whether on their own or jointly with
PharmaSynth and whether at common law, in equity or pursuant to statute or
otherwise, in respect of any loss, death, injury, illness or damage (whether
personal or property) which arises out of a breach of clause 10.1 or 11, except
to the extent that such claim results or arises from breach by GTB of any term
of this agreement or the negligence or wilful misconduct of GTB and its
Affiliates, or their employees, agents or officers.


 


10.8                                        Liability for costs of
Infringement Claim


 


(a)                                                  Notwithstanding
clauses 10.6 and 10.7, in the case of any claim of infringement of PharmaSynth
IP or infringement of a third party’s Intellectual Property by the Products,
which is brought by a third party against GTB in a country in the
Territory (whether alone or together with PharmaSynth) (the “Infringement Claim”):


 


(i)                                                     GTB will appoint lawyers acceptable to PharmaSynth to conduct the defence of the Infringement Claim;


 


(ii)                                                  GTB will be responsible for the legal expenses and for all actions
taken by GTB’s lawyers;


 


(iii)                                               GTB will not settle or compromise any case without the prior written
consent of PharmaSynth, which will not be
unreasonably withheld; and


 


(iv)                                              PharmaSynth will provide GTB with such assistance
and information as GTB reasonably requests.


 


(v)                                                 Both Parties agree to share the
cost at 20/80 (PharmaSynth/GTB).


 


10.9                                        General mutual
representations and warranties


 


Each of the
parties represents and warrants to the other party that each of the following
statements is true and correct in all material respects:


 


(a)                                                  it has full power and
authority to enter into, perform and observe its obligations under this
agreement, and that its execution, delivery and performance of this agreement
has been duly and validly authorised by all necessary corporate action; and


 


(b)                                                  this agreement and
the transactions contemplated by it do not contravene its constituent documents
or any law, regulation or official directive or any of its obligations or
undertakings by which it or any of its assets are bound or cause a limitation
on its powers or those of its directors to be exceeded.


 


10.10                                 Indemnities


 


(a)                                                  Each indemnity in
this agreement is a continuing
obligation, separate and independent from the other obligations of the parties,
and survives termination, completion or expiration of this agreement.


 


12

















 


(b)                                                  It is not necessary
for a party to incur expense or to make any payment before enforcing a right of
indemnity conferred by this agreement.


 


(c)                                                   A party must pay on
demand any amount it must pay under an indemnity in this agreement.


 


11.                                               Confidentiality


 


11.1                                        No use or disclosure


 


Neither of the
parties shall, unless specifically authorised in this agreement or with the
prior written consent of the other party:


 


(a)                                                  disclose any
Confidential Information of the other party;


 


(b)                                                  disclose any
Confidential Information relating to a Product relevant to the Field;


 


(c)                                                   make use of any
Confidential Information of the other party for any purpose other than for the
purposes set forth in or in furtherance of this agreement; or


 


(d)                                                  make use of any
Confidential Information relating to a Product relevant to the Field for any
purpose other than for the purposes set forth in or in furtherance of this
agreement.


 


11.2                                        Further obligations


 


Each of the
parties must:


 


(a)                                                  use its best
endeavours to keep the Confidential Information of the other party safe and
secure and prevent unauthorised use, reproduction or disclosure of the
Confidential Information of the other party;


 


(b)                                                  restrict the
disclosure of the Confidential Information of the other party to only those
employees who require the Confidential Information for the purposes of
fulfilling that party’s obligations under this agreement;


 


(c)                                                   not make, assist or
permit any person (including its representatives) to make any unauthorised use,
disclosure or reproduction of any of the other party’s Confidential
Information;


 


(d)                                                  take reasonable steps
to enforce the confidentiality obligations imposed or required to be imposed by
this agreement including diligently prosecuting at its cost any breach or
threatened breach of such confidentiality obligations by a person to whom it
has disclosed such Confidential Information and, where appropriate, making applications
for interim or interlocutory relief; and


 


(e)                                                   co-operate with the
other party in any action which it may take to protect the confidentiality of
its Confidential Information.


 


11.3                                        Legal requirements


 


A party may
disclose anything in respect of this agreement or a Product:


 


(a)                                                  as required by
applicable law, rules of any stock exchange, Government Agency or
ministerial directive;


 


(b)                                                  necessary to be
disclosed to a Government Agency to comply with the party’s obligations under
clause 8.1;


 


13

















 


(c)                                                   to its professional
advisors including, without limitation, accountants, financial advisors,
insurers, patent attorneys and legal advisors, subject to that party agreeing
to keep the Confidential Information confidential in accordance with this
clause;


 


(d)                                                  in order to do
anything which the party is entitled to do in respect of a Product under this
agreement.


 


11.4                                        Return of Confidential
Information


 


Subject to
clauses 11.5 and 13.2(d)(ii), all Confidential Information whether in hard
copy, electronic or any other form will (at the option of the discloser of that
Confidential Information) be destroyed or returned to the party who disclosed
the Confidential Information within thirty (30) days of termination of the
agreement and each party will cease all use of the other party’s Confidential
Information.


 


11.5                                        Retention for legal
advice


 


Each party’s
legal representative may retain one copy of such Confidential Information
solely for the purpose of determining the scope of that party’s obligations
under this clause.


 


11.6                                        Survival of clause


 


The
obligations of confidentiality imposed by this agreement survive the
termination of this agreement.  Each
party may enforce this clause 11 in favour of its Affiliates.


 


12.                                               Audit


 


12.1                                        Records


 


(a)                                                  GTB will keep full
and accurate books and records setting forth Net Sales and any other
information sufficient in detail to allow the calculation of royalties and
licence fees to be paid by GTB.


 


(b)                                                  GTB will keep such
books and records for a minimum of 7 years from the date that they are created.


 


12.2                                        Audit


 


GTB will, upon
7 days notice and during normal business hours or as otherwise agreed, permit
and provide persons (“Auditors”) nominated by
PharmaSynth, supervised access to GTB’s and its Affiliates’ premises, books,
records, documents, computer systems, equipment and other property relevant to
the performance of this agreement to verify compliance by GTB with its
obligations under this agreement and its likely capacity to continue to comply
with its obligations in the future (“Audit”).  Without limiting the foregoing, an Audit may
include:


 


(a)                                                  review of materials
relating to royalties and licence fees;


 


(b)                                                  review of
arrangements and payments with End Users, sublicensees and other third parties;


 


(c)                                                   legal compliance; and


 


(d)                                                  quality assurance
practices.


 


14

















 


12.3                                        Security


 


In undertaking
the Audit, PharmaSynth will procure that the Auditors comply with reasonable
security and confidentiality requirements of GTB made known to PharmaSynth.


 


12.4                                        Co-operation


 


GTB will do
things reasonably necessary to facilitate a prompt and efficient Audit.


 


12.5                                        Copies of materials


 


The Auditors
may make copies of books, records, documents and other materials they have
access to as part of an Audit, and GTB will provide the Auditors with the
necessary facilities to enable them to do so.


 


12.6                                        Costs of the Audit


 


Should the
audit reveal an underpayment discrepancy of five percent (5%) or more between
any payment reported and any payment actually due to PharmaSynth, GTB shall pay
all fees and expenses incurred in conducting the audit; otherwise PharmaSynth
shall pay the fees and expenses incurred in conducting the audit and
inspection.  Underpayment discrepancies
shall be paid promptly by GTB to PharmaSynth and overpayment discrepancies
shall be credited to GTB’s account in connection with the next subsequent
payment of royalties.


 


13.                                               Termination


 


13.1                                        Reasons for
termination by either party


 


In addition to
any other provisions set out in this agreement which allow a party to terminate
this agreement, either party may terminate this agreement immediately by
written notice to the other party in the event of:


 


(a)                                                  a failure to pay any
amounts due under this agreement within the periods required, provided that the
breach is not cured within one month after written notice thereof is received
from the non-defaulting party;


 


(b)                                                  the other party
having committed a breach of this agreement on three occasions and having
received written notice of those breaches from the non-defaulting party, even
if the breaches have been remedied; or


 


(c)                                                   the other party being
subject to an Event of Insolvency.


 


13.2                                        Reasons for
termination by PharmaSynth


 


PharmaSynth
may terminate this agreement immediately by written notice to GTB if GTB
Exploits a product which competes with the Products in the Territory.


 


13.2                                        Consequences of
termination


 


Upon
termination of this agreement under Paragraph 13.1 due to a material breach by GTB:


 


(a)                                                  any licence fee or
royalty which has accrued to PharmaSynth but which is not yet payable, will
become immediately due and payable;


 


(b)                                                  GTB will promptly
destroy all marketing, labelling or advertising materials relating to the
Products or the PharmaSynth IP;


 


15

















 


(c)                                                   GTB will promptly
execute whatever documents are necessary and take whatever steps are necessary
to transfer to PharmaSynth or its nominee, free of charge except for out-of
pocket expenses, all of GTB and its Affiliates and sublicensee’s right title
and interest in and to any approvals given by a Government Agency including NDA’s,
product licence, drug identification numbers or other health registration
approvals in effect in the Territory;


 


(d)                                                  PharmaSynth may elect
to:


 


(i)                                                     grant GTB 3 months to sell off its existing stocks of the Products
provided that GTB continues to pay the royalties payable under this agreement
and at the end of that period GTB destroys or delivers any remaining stock to
PharmaSynth; or


 


(ii)                                                  purchase any stock from GTB.


 


13.3                                        Termination due to
default by PharmaSynth


 


In the event
of the termination of this Agreement due to a material default by PharmaSynth,
GTB shall have a right to continue to Exploit the PharmaSynth IP in the Licensed
Territory and to renegotiate
a reduced licensing fees and royalties payments commensurate with the impact of
the breach for the remainder of the Term Period.


 


13.4                                        Accrued rights and
survival


 


Termination or
expiry of this agreement will not affect:


 


(a)                                                  any rights or
remedies of the parties which may have accrued before the date of termination;


 


(b)                                                  the rights and
obligations of the parties which by their nature survive termination, including
clauses 10, 11 and 13.


 


14.                                               Dispute resolution


 


14.1                                        Negotiation


 


(a)                                                  If there is a dispute
between the parties in connection with this agreement, then within ten business
days of a party notifying the other party of a dispute, a senior representative
authorised to resolve the dispute from each party must meet and use all
reasonable endeavours acting in good faith to resolve the dispute (the “Initial Meeting”).


 


(b)                                                  If the dispute is not
resolved under clause 14.1(a) within ten business days of the Initial
Meeting, then the Chief Executive Officers of GTB and PharmaSynth will, within
30 days of the Initial Meeting, meet and use all reasonable endeavours acting
in good faith to resolve the dispute (the “Subsequent
Meeting”).


 


14.2                                        Referral to
arbitration


 


If any dispute
is not resolved through good faith negotiations between the Chief Executive
Officers of each party within 5 days after the date of the Subsequent Meeting,
the parties must refer the dispute to arbitration in accordance with clause 15.


 


16

















 


15.                                               Arbitration


 


15.1                                        Reference to
arbitration


 


Any dispute or
controversy arising out of or connected with, or relief sought pursuant to,
this Agreement shall be finally settled by binding arbitration under the Rules of
Arbitration of the International Chamber of Commerce by one or more arbitrators
appointed in accordance with said Rules. 
The venue of any such arbitration shall be San Francisco.  Judgment upon any arbitration award may be
entered in any court having jurisdiction. 
The proceedings shall be conducted in the English language.  Each party shall bear its own costs in any
arbitration hereunder.  The official and
governing text of this Agreement shall be English.


 


15.2                                        Award final and
binding


 


Any award will
be final and binding upon the parties.


 


16.                                               Force Majeure


 


16.1                                        Event of Force Majeure


 


If a party is
prevented in whole or in part from carrying out its obligations under this
agreement (other than an obligation to pay money) as a result of Force Majeure,
it must promptly notify the other party accordingly.  The notice must:


 


(a)                                                  specify the
obligations it cannot perform;


 


(b)                                                  fully describe the
event of Force Majeure;


 


(c)                                                   estimate the time
during which the Force Majeure will continue; and


 


(d)                                                  specify the measures
proposed to be adopted to remedy or abate the Force Majeure.


 


Following this
notice, and while the Force Majeure continues, the obligations which cannot be
performed because of the Force Majeure will be suspended except for the
obligation to pay money.


 


16.2                                        Remedy of Force Majeure


 


The party that
is prevented from carrying out its obligations under this agreement as a result
of Force Majeure must:


 


(a)                                                  remedy the Force
Majeure to the extent reasonably practicable and resume performance of its
obligations as soon as reasonably possible; and


 


(b)                                                  take all action
reasonably practicable to mitigate any loss suffered by a party as a result of
its failure to carry out its obligations under this agreement.


 


(c)                                                  The Parties shall
hold discussions following an event of Force Majeure to arrive at mutually
acceptable alternative approaches to replace the actions which are prevented by
the Force Majeure.


 


16.3                                        Extension of Term


 


The Term of
this agreement shall be extended by the period of the Force Majeure.


 


17

















 


17.                                               Notices


 


Each
communication (including each notice, consent, approval, request and demand)
under or in connection with this agreement:


 


(a)                                                  must be in writing;


 


(b)                                                  must be addressed as
follows (or as otherwise notified by that party to each other party from time
to time):


 


	
  PharmaSynth

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  PharmaSynth Pty Ltd

  
	
  Address:

  	
  2806 Ipswich Road, Darra, QLD
  4076, Australia

  
	
  Fax:

  	
  (+61) 7 3720 9624

  
	
  For
  the attention of:

  	
  Chief Executive Officer

  



 


	
  GTB

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Global Transbiotech Inc.

  
	
  Address:

  	
  3550 Wilshire Blvd. suite 1747,
  Los Angeles, CA 90010, United States of America

  
	
  Fax:

  	
  (+1)
  213 637 5653

  
	
  For
  the attention of:

  	
  Chief
  Executive Officer

  



 


(c)                                                   must be signed by the
party making it or (on that party’s behalf) by the solicitor for, or any
attorney, director, secretary or authorised agent of, that party;


 


(d)                                                  must be delivered by
hand or posted by prepaid post to the address, or sent by fax to the number, of
the addressee, in accordance with clause 17(b); and


 


(e)                                                   is taken to be
received by the addressee:


 


(i)                                                     (in the case of prepaid post sent to an address in the same country)
on the third day after the date of posting;


 


(ii)                                                  (in the case of prepaid post sent to an address in another country)
on the fifth day after the date of posting by airmail;


 


(iii)                                               (in the case of fax) at the time in the place to which it is sent
equivalent to the time shown on the transmission confirmation report produced
by the fax machine from which it was sent; and


 


(iv)                                              (in the case of delivery by hand) on delivery,


 


but if the
communication is taken to be received on a day that is not a working day or
after 5.00 pm, it is taken to be received at 9.00 am on the next
working day (“working day” meaning a day that is
not a Saturday, Sunday or public holiday and on which banks are open for
business generally, in the place to which the communication is posted, sent or
delivered).


 


18

















 


18.                                               General


 


18.1                                        Governing law


 


This Agreement
shall be construed pursuant to the laws of the State of California without
regard to conflicts of laws provisions thereof.


 


18.2                                        Jurisdiction


 


All matters
arising from or related to this Agreement shall be brought only in the federal
or state courts in Los Angeles County, California.


 


18.3                                        Assignment


 


A party cannot
assign, novate or otherwise transfer any of its rights or obligations under
this agreement without the prior consent of each other party, which in the case
of PharmaSynth cannot be unreasonably withheld or delayed by GTB.


 


18.4                                        Amendments


 


This agreement
may only be varied by a document signed by or on behalf of each party.


 


18.5                                        Waiver


 


(a)                                                  Failure to exercise
or enforce, or a delay in exercising or enforcing, or the partial exercise or
enforcement of, a right, power or remedy provided by law or under this agreement by a party does not preclude, or
operate as a waiver of, the exercise or enforcement, or further exercise or
enforcement, of that or any other right, power or remedy provided by law or
under this agreement.


 


(b)                                                  A waiver or consent
given by a party under this agreement is
only effective and binding on that party if it is given or confirmed in writing
by that party.


 


(c)                                                   No waiver of a breach
of a term of this agreement operates as a
waiver of another breach of that term or of a breach of any other term of this agreement.


 


18.6                                        Further acts and
documents


 


Each party
must promptly do all further acts and execute and deliver all further documents
(in form and content reasonably satisfactory to that party) required by law or
reasonably requested by another party to give effect to this agreement.


 


18.7                                        No representation or
reliance


 


(a)                                                  Each party
acknowledges that no party (nor any person acting on a party’s behalf) has made
any representation or other inducement to it to enter into this agreement, except for representations or
inducements expressly set out in this agreement.


 


(b)                                                  Each party
acknowledges and confirms that it does not enter into this agreement in reliance on any representation or
other inducement by or on behalf of any other party, except for representations
or inducements expressly set out in this agreement.


 


18.8                                        Expenses


 


Except as
otherwise provided in this agreement,
each party must pay its own costs and expenses in connection with negotiating,
preparing, executing and performing this agreement.


 


19

















 


18.9                                        Entire agreement


 


To the
extent permitted by law, in relation to its subject matter, this agreement:


 


(a)                                                  embodies the entire
understanding of the parties, and constitutes the entire terms agreed by the
parties; and


 


(b)                                                  supersedes any prior
written or other agreement of the parties.


 


18.10                                 Sub-contracting


 


Unless
expressly authorised by this agreement, a party may not sub-contract any of its
obligations under this agreement without the prior written consent of the other
party which consent must not be unreasonably withheld but may be given subject
to such reasonable terms as may be necessary to protect the consenting party’s
rights or interests under this agreement.


 


18.11                                 Relationship of the
parties


 


(a)                                                  Each party to this
agreement represents and warrants to the other party that it has the legal
capacity to enter into this agreement.


 


(b)                                                  Nothing in this
agreement is intended or will be construed as constituting a partnership,
agency or joint venture relationship between the parties. All activities by the
parties hereunder will be performed by them as independent contractors.


 


(c)                                                   Neither party will
act in a manner inconsistent with clause 18.11(b) without the express
informed written consent of the other party and, in particular, will not pledge
the credit of the other party nor receive money on behalf of the other party
nor enter into any agreements or make any representation on behalf of the other
party.


 


18.12                                 Remedies cumulative


 


The rights,
powers and remedies provided to the parties  in this
agreement are in addition to, and do not exclude or limit, any right, power or
remedy provided by law or equity or by any agreement.


 


18.13                                 Severability of
provisions


 


Any provision
of this agreement that is prohibited or unenforceable in any jurisdiction is
ineffective as to that jurisdiction to the extent of the prohibition or
unenforceability.  That does not
invalidate the remaining provisions of this agreement nor affect the validity
or enforceability of that provision in any other jurisdiction.


 


18.14                                 Change in control


 


All rights and
liabilities under this agreement continue in force notwithstanding any change
in the equity ownership of either of the parties.


 


18.15                                 Publicity


 


Neither party
may use the name or logo of the other party in any public document or
disclosure whether written, oral or otherwise communicated without the prior
written consent of the other party.


 


20

















 


18.16                                 Counterparts


 


This agreement
may be executed in any number of counterparts. 
All counterparts together will be taken to constitute one instrument.


 


21






 












 


Schedule 1 -
PharmaSynth IP


 


1.             Patents and Patent Applications


 


	
  COUNTRY

  	
   

  	
  OFFICIAL

  NO.

  	
   

  	
  TITLE

  	
   

  	
  CASE

  STATUS

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AUSTRALIA

  	
   

  	
  702500

  	
   

  	
  Preparation and Use of Sulfated
  Oligosaccharides

  	
   

  	
  Registered

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BRAZIL

  	
   

  	
  PI9608041-8

  	
   

  	
  Sulfated Oligosaccharide, Process for the
  Anti-Angiogenic, Anti-Metastatic and/or Anti-Inflammatory Treatment of a
  Human Patient or Other Warm/Blooded Animal Patient, use of an Oligosaccharide
  and Pharmaceutical or Veterinary Composition for Anti-Angiogenesis

  	
   

  	
  Pending

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CANADA

  	
   

  	
  2218872

  	
   

  	
  Preparation and Use of Sulfated
  Oligosaccharides

  	
   

  	
  Registered

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CHINA

  	
   

  	
  ZL96193563.4

  	
   

  	
  Preparation and Use of Sulfated
  Oligosaccharides

  	
   

  	
  Registered

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EUROPE

  	
   

  	
  96910861.2

  	
   

  	
  Preparation and Use of Sulfated
  Oligosaccharides

  	
   

  	
  Pending

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ISRAEL

  	
   

  	
  118047

  	
   

  	
  Sulfated Oligosaccharides, Pharmaceutical
  Compositions Containing Them and Preparation of Sulfated Hexopyranose
  Homooligosaccharides

  	
   

  	
  Registered

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  JAPAN

  	
   

  	
  532038/96

  	
   

  	
  Preparation and Use of Sulfated
  Oligosaccharides

  	
   

  	
  Pending

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  REPUBLIC OF KOREA

  	
   

  	
  0591960

  	
   

  	
  Preparation and Use of Sulfated
  Oligosaccharides

  	
   

  	
  Registered

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MEXICO

  	
   

  	
  243061

  	
   

  	
  Preparation and use of Sulfated
  Oligosaccharides

  	
   

  	
  Registered

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NEW ZEALAND

  	
   

  	
  305815

  	
   

  	
  Preparation and Use of Sulfated
  Oligosaccharides

  	
   

  	
  Registered

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  POLAND

  	
   

  	
  184357

  	
   

  	
  Preparation and Use of Sulfated
  Oligosaccharides

  	
   

  	
  Registered

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RUSSIAN FEDERATION

  	
   

  	
  001199

  	
   

  	
  Preparation and Use of Sulfated
  Oligosaccharides

  	
   

  	
  Registered

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SINGAPORE

  	
   

  	
  48558

  	
   

  	
  Preparation and Use of Sulfated Oligosaccharides

  	
   

  	
  Registered

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TAIWAN

  	
   

  	
  138332

  	
   

  	
  Preparation and Use of Sulfated
  Oligosaccharides

  	
   

  	
  Registered

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UNITED STATES OF AMERICA

  	
   

  	
  6143730

  	
   

  	
  Preparation and Use of Sulfated
  Oligosaccharides

  	
   

  	
  Registered

  



 


22

















 


	
  COUNTRY

  	
   

  	
  OFFICIAL

  NO.

  	
   

  	
  TITLE

  	
   

  	
  CASE

  STATUS

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SOUTH AFRICA

  	
   

  	
  96/3339

  	
   

  	
  Preparation and Use of Sulfated
  Oligosaccharides

  	
   

  	
  Registered

  



 


	
  2.

  	
  Trade marks

  
	
   

  	
   

  
	
  2.1

  	
  Registered

  
	
   

  	
   

  
	
   

  	
  Nil.

  
	
   

  	
   

  
	
  2.2

  	
  Unregistered

  
	
   

  	
   

  
	
   

  	
  PI-88

  
	
   

  	
   

  
	
   

  	
  Muparfostat

  
	
   

  	
   

  
	
   

  	
  Muparfostat sodium

  



 


23

















 


Executed as an agreement


 


 


	
  Executed by PharmaSynth Pharmaceuticals
  Inc 

  	
   

  	
   

  
	
  by or in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature of Director

  	
   

  	
  Signature of Secretary/other Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name of Director in full

  	
   

  	
  Name of Secretary/other Director in full

  



 


 


	
  Executed by GLOBAL TRANSBIOTECH, INC

  	
   

  	
   

  
	
  by its authorised officers:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature of Director

  	
   

  	
  Signature of Secretary/other Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name of Director in full

  	
   

  	
  Name of Secretary/other Director in full

  



 


24