EXHIBIT 10.1
DATED 15th June, 2007
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(1) BIOTECHNOLOGY RESEARCH CORPORATION LIMITED
(2) GERON CORPORATION
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RESTRUCTURING AGREEMENT
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CONTENTS
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1. Definitions and Interpretation........................................1
2. Restructuring of Share Capital........................................4
3. Sale and Purchase of Sale Shares......................................7
4. Closing...............................................................7
5. Warranties............................................................9
6. Restrictions on Announcements........................................10
7. Costs................................................................10
8. Stamp Duty...........................................................10
9. Further Assurance....................................................11
10. Assignment...........................................................11
11. Entire Agreement.....................................................11
12. Variation............................................................12
13. Notices..............................................................12
14. Waiver...............................................................12
15. Severability.........................................................12
16. Counterparts.........................................................12
17. Survival of Provisions...............................................12
18. Governing Law and Dispute Resolution.................................13
Schedule 1 Undertaking of BRC.................................................14
Schedule 2 First Written Resolutions of Shareholders..........................15
Schedule 3 New Articles of Association........................................17
Schedule 4 Written Resolution of Directors....................................55
Schedule 5 Second Written Resolution of Shareholders..........................57
Schedule 6 Form of Resignation of Director....................................58
Schedule 7 Second Written Resolution of Directors.............................59
Schedule 8 Amended and Restated Joint Venture Agreement.......................61
Schedule 9 Amended BRC Services Agreement.....................................62
THIS AGREEMENT is made on the 15th day of June 2007
BETWEEN:
(1) BIOTECHNOLOGY RESEARCH CORPORATION LIMITED, a company incorporated
under the laws of Hong Kong whose registered office is at The Hong Kong
University of Science and Technology, Clear Water Bay, Kowloon, Hong
Kong ("BRC").
(2) GERON CORPORATION, a company incorporated under the laws of the state
of Delaware whose registered office is at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America ("Geron").
RECITALS:
(A) TA Therapeutics Limited (the "Company") is a company incorporated under
the Companies Ordinance with registered number 953612 whose registered
office is at 14th Floor, ▇▇▇▇▇▇▇▇▇ House, 10 Chater Road, Central Hong
Kong.
(B) Immediately upon the signing of this Agreement the Company has an
authorised share capital of US$36,000 divided into * class A shares and
* class B shares, all of US$1.00 each and an issued share capital of
US$24,000 divided into * class A Shares and * class B shares all of
US$1.00 each.
(C) The Parties have agreed to restructure the share capital of the Company
and BRC has agreed to sell and Geron has agreed to purchase the Sale
Shares all on the terms set out in this Agreement.
(D) Each of the Parties enters into this Agreement in consideration of the
other Party entering into this Agreement and accepting the terms,
undertakings and covenants contained herein.
TERMS AGREED:
1. Definitions and Interpretation
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1.1 In this Agreement and the Recitals, where the context so admits, the
following words and expressions shall have the following meanings:
"Amended and Restated
Joint Venture Agreement" means the amended and restated joint
venture agreement to be entered into
between BRC, Geron and the Company on
Closing in the form of Schedule 8;
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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"Amended BRC
Services Agreement" means the amended services agreement
to be entered into between the
Company and BRC on Closing in the
form of Schedule 9;
"A Share" means a class A share of US$1 par
value in the share capital of the
Company having the rights and
benefits and being subject to the
restrictions set out in the Existing
Articles of Association;
"Associated Company" means, in relation to any company,
any subsidiary or holding company of
that company or any other subsidiary
of such holding company (and for this
purpose, HKUST shall be deemed to be
a holding company of BRC until such
time as BRC ceases to be a subsidiary
of HKUST);
"Board" means the Company's board of
Directors;
"BRC Services Agreement" means the services agreement dated
21 March 2005 entered into between
the Company and BRC;
"B Share" means a class B Share of US$1 par
value in the share capital
of the Company having the rights and
benefits and being subject to the
restrictions set out in the Existing
Articles of Association;
"Closing" means completion of the restructuring
of share capital, the sale and
purchase of the Sale Shares and all
the other matters referred to in
Clause 4;
"Companies Ordinance" means the Companies Ordinance
(Chapter 32 of the Laws of
Hong Kong);
"company" means any company or body
corporate wherever incorporated;
"Director" means any director of the Company
from time to time;
"Encumbrance" means and includes any interest
or equity of any person
(including any right to acquire,
option or right of pre-emption),
voting arrangement, mortgage,
charge, pledge, ▇▇▇▇ of sale,
lien, deposit, hypothecation,
assignment or any other
encumbrance, priority or security
interest or arrangement or
interest under any contract or
trust or any other interest of any
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third party of whatsoever nature over
or in the relevant property;
"Existing Articles
of Association" means the articles of association of
the Company as in effect immediately
before Closing;
"Geron's Solicitors" means ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ & Partners,
50th Floor, Bank of ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇;
"HKUST" means The Hong Kong University of
Science and Technology;
"holding company" has the meaning attributed to it in
section 2 of the Companies Ordinance;
"Hong Kong" means the Hong Kong Special
Administrative Region of the People's
Republic of China;
"New Articles of Association" means the new articles of association
of the Company to be adopted at
Closing in the form of Schedule 3;
"Party" means a party to this Agreement;
"Sale Shares" means * fully paid up unclassified
ordinary shares of US$1.00 each in
the capital of the Company to be sold
by BRC to Geron under this Agreement
resulting from the re-designation of
Shares to occur on Closing as set out
in Clauses 2.2 and 4.4, but
immediately prior to their sale and
purchase pursuant to Clauses 3 and
4.6;
"Share" means any share (of whatever class or
denomination) in the share capital
from time to time of the Company;
"subsidiary" has the meaning attributed to it in
section 2 of the Companies Ordinance;
"US$" or "US Dollars" means United States dollars, the
lawful currency of the United States
of America.
1.2 Save where the context otherwise requires words and phrases the
definitions of which are contained or referred to in the Companies
Ordinance shall be construed as having the meaning thereby attributed
to them.
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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1.3 Any references, express or implied, to statutes or statutory provisions
shall be construed as references to those statutes or provisions as
respectively amended or re-enacted or as their application is modified
from time to time by other provisions (whether before or after the date
hereof) and shall include any statutes or provisions of which they are
re-enactments (whether with or without modification) and any orders,
regulations, instruments or other subordinate legislation under the
relevant statute or statutory provision. References to sections of
consolidating legislation shall wherever necessary or appropriate in
the context be construed as including references to the sections of the
previous legislation from which the consolidating legislation has been
prepared.
1.4 Except where the context requires otherwise, references to any document
(including this Agreement) are references to that document as amended,
consolidated, supplemented, novated or replaced from time to time;
1.5 References in this Agreement to recitals, clauses, paragraphs and
schedules are to clauses and paragraphs in and recitals and schedules
to this Agreement (unless the context otherwise requires). The Recitals
and Schedules to this Agreement shall be deemed to form part of this
Agreement.
1.6 Headings are inserted for convenience only and shall not affect the
construction of this Agreement.
1.7 References to a Party include its respective successors and permitted
assigns.
1.8 References to "persons" shall include any individual, any form of body
corporate, unincorporated association, firm, partnership, joint
venture, consortium, association, organisation or trust (in each case
whether or not having a separate legal personality).
1.9 References to writing shall include any methods of reproducing words in
a legible and non-transitory form.
1.10 The masculine gender shall include the feminine and neuter and the
singular number shall include the plural and vice versa.
1.11 In construing this Agreement:
1.11.1 the rule known as the ejusdem generis rule shall not apply
and, accordingly, general words introduced by the word
"other" shall not be given a restrictive meaning by reason
of the fact that they are preceded by words indicating a
particular class of acts, matters or things; and
1.11.2 general words shall not be given a restrictive meaning by
reason of the fact that they are followed by particular
examples intended to be embraced by the general words.
2. Restructuring of Share Capital
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2.1 The Parties acknowledge that upon signing of this Agreement the issued
capital of the Company comprises:
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2.1.1 * A Shares, of which:
(a) * A Shares are registered in the name of BRC and are fully
paid up;
(b) * A Share is registered in the name of BRC and is paid up as
to the nominal amount of such Share of US$1.00, but is not
yet paid up as to the premium of US$* payable on such Share;
(c) * A Shares are registered in the name of Geron and are
fully paid up; and
(d) * A Share is registered in the name of Geron and is paid
up as to the nominal amount of such Share of US$1.00, but is
not yet paid up as to the premium of US$* payable on such
Share; and
2.1.2 * B Shares, of which:
(a) * B Shares are registered in the name of BRC and are
fully paid up;
(b) one B Share is registered in the name of BRC and is paid
up as to the nominal amount of such Share of US$1.00, but is
not yet paid up in full as to the premium of US$* payable on
such Share;
(c) * B Shares are registered in the name of Geron and are
fully paid up; and
(d) one B Share is registered in the name of Geron and is
paid up as to the nominal amount of such Share of US$1.00,
but is not yet paid up in full as to the premium of US$*
payable on such Share.
2.2 The Parties agree that on Closing, each of the following events, among
other things, shall occur:
2.2.1 BRC shall pay to the Company the balance of the
premium payable on its partly paid A Share;
2.2.2 Geron shall pay to the Company the balance of the
premium payable on its partly paid A Share and partly paid B
Share;
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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2.2.3 the share capital of the Company shall be restructured
by the variation of the rights attaching to the B Shares and
the redesignation of all the A Shares and B Shares as
unclassified ordinary shares of US$1.00 each but so that the
one partly paid Share held by BRC shall following such
variation and redesignation remain partly paid to the same
extent and subject to the same liability for the premium
thereof as before such variation and re-designation;
2.2.4 the New Articles of Association shall be adopted;
2.2.5 the changes in the classification of share capital
shall be recorded in the register of members;
2.2.6 BRC shall complete the sale of the Sale Shares to
Geron so that Geron shall become the holder of 75% of the
issued Shares and BRC shall become the holder of 25% of the
issued Shares; and
2.2.7 the Parties shall pass a special resolution pursuant
to Section 58 Companies Ordinance to the effect that,
subject to the approval of the Court, the liability of BRC
to pay the premium on its one partly paid Share (previously
classified as a partly paid up B Share) shall be reduced
from US$* to US$*,
all in accordance with the further terms of this Agreement.
2.3 The Parties further agree and undertake that following Closing they
shall, and shall procure that the Company shall, take all such further
lawful action as may be necessary or desirable to procure that the
reduction of the liability of BRC to pay the premium on its one partly
paid Share shall be approved by the Court in accordance with the
procedures specified in the Companies Ordinance and if the Court fails
to approve such reduction of capital the provisions of clause 2.3 of
the Amended and Restated Joint Venture Agreement shall have effect.
2.4 Each of the Parties, being all the members of the Company and all
the members of the classes of members holding A Shares or B Shares
respectively:
2.4.1 consents to any variation of the rights attached to
the A Shares and the B Shares made by any of the special
resolutions to be passed by the members of the Company as
provided in this Agreement; and
2.4.2 waives, and undertakes to the other Party that it
shall not exercise, any and all rights that it may have to
apply to Court to object to the matters contemplated by this
Agreement whether under Section 64 Companies Ordinance,
pursuant to any right of pre-emption, or otherwise.
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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3. Sale and Purchase of Sale Shares
--------------------------------
3.1 Subject only to the passing of the resolutions and completion of the
matters referred to in Clauses 2.2.1 to 2.2.5, BRC as beneficial owner
shall sell the Sale Shares and Geron shall purchase the Sale Shares
free from all Encumbrances together with all rights of any nature
whatsoever attaching or accruing to them at Closing.
3.2 The aggregate consideration payable by Geron to BRC for the Sale Shares
is US$1.00 payable in cash at Closing.
4. Closing
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4.1 Closing shall take place at the offices of Geron's Solicitors
immediately upon execution of this Agreement when all (but not some
only) of the events described in this Clause 4 shall be performed (if
not already performed).
4.2 Before Closing, the Parties shall procure that copies of the
resolutions of members of the Company shall be supplied to the auditors
in accordance with Section 116BA Companies Ordinance.
4.3 At Closing:
4.3.1 BRC shall pay to the Company by bank cashier's order
or by credit transfer in immediately available funds to the
bank account of the Company the sum of HK$* (being the HK
Dollar equivalent of US$*) being the net sum of (a) the
balance of the share premium on the one partly paid A Share
registered in its name in the amount of US$* less (b) the
amount of US$* representing capital contributions paid
towards such share premium and expenses incurred by BRC;
4.3.2 BRC shall deliver to the Company and Geron an
unconditional undertaking in the form of Schedule 1 to pay
up a total of US$* being the balance of the premium which
the parties agree shall remain payable on the one partly
paid B Share registered in its name, such payment to be made
in two instalments of US$* on * and US$* on *;
4.3.3 Geron shall pay to the Company by bank cashier's order
or by credit transfer in immediately available funds to the
bank account of the Company the sum of HK$ (being the HK
Dollar equivalent of US$*) being the net sum of (a) the
balance of the share premium on the one partly paid A share
and one partly paid B Share registered in its name in the
amount of US$* less (b) the amount of US$* representing
capital contributions paid towards such share premium and
expenses incurred by Geron.
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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4.4 At Closing, subject to the payments to the Company specified in
Clause 4.3 having been made, each of the Parties shall:
4.4.1 deliver to the Company the written resolutions of the
members in the form of Schedule 2 duly signed by its
respective authorized signatory on its behalf to approve the
reclassification of the authorized share capital of the
Company into unclassified ordinary Shares and the
redesignation of all the issued A Shares and B Shares into
unclassified ordinary Shares and to adopt the Articles of
Association);
4.4.2 deliver to the Company the written resolutions of the
Board in the form of Schedule 4 duly signed by the Directors
respectively appointed by them to the Board; and
4.4.3 deliver to the Company the shares certificates in its
name in respect of the shares held by it as previously
designated as class A Shares or class B shares (as the case
may be) or (if required) an indemnity therefor;
4.4.4 procure that changes to the share capital referred to
in the resolutions of the members specified in Schedule 2
are duly reflected in the register of members of the
Company.
4.5 At Closing, subject to the matters specified in Clause 4.4 having been
completed, each of the Parties shall deliver to the Company the written
resolutions of the members in the form of Schedule 5 duly signed by its
respective authorized signatory on its behalf to approve the reduction
of the liability of BRC for the premium payable on its one partly paid
Share to US$*.
4.6 At Closing, subject to the matters referred to in Clause 4.5
having been completed, BRC shall deliver or cause to be delivered
to Geron and the Company:
4.6.1 duly executed transfers and sold notes in respect of
the Sale Shares in favour of Geron accompanied by the
relevant certificates for the Sale Shares;
4.6.2 all powers of attorney, board resolutions or other
authorities under which the transfers and sold notes in
respect of the Sale Shares (and the other documents executed
by BRC pursuant to this Agreement) have been executed;
4.6.3 all statutory books and records (including financial
records) duly written up to date of the Company and its
certificate of incorporation, current business registration
certificate and common seal, cheque and deposit books, and
any other books, papers, records and documents of the
Company and in the possession of BRC or HKUST or any of
their respective Associated Companies;
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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4.6.4 the resignation of ▇▇. ▇▇▇ ▇▇▇▇▇-▇▇ as a Director in
the form specified in Schedule 6;
4.6.5 the Amended BRC Services Agreement and the Amended and
Restated Joint Venture Agreement, each duly executed by BRC;
4.7 At Closing, subject to delivery of the documents specified in
Clause 4.6, Geron shall:
4.7.1 deliver to BRC the Amended and Restated Joint Venture
Agreement and the Amended BRC Services Agreement duly
executed by Geron;
4.7.2 deliver to BRC all powers of attorney, board
resolutions or other authorities under which the documents
executed by Geron pursuant to this Agreement have been
executed; and
4.7.3 pay to BRC the consideration payable for the Sale
Shares in the sum of US$1.00 against an acknowledgement of
receipt therefore.
4.8 At Closing, the Parties shall deliver to each other the written
resolutions of the Board in the form of Schedule 7 duly signed by the
Directors respectively appointed by them to the Board;
4.9 At Closing, the Parties shall procure that the Company delivers to each
of the Parties the Amended BRC Services Agreement and the Amended and
Restated Joint Venture Agreement duly executed by the Company.
5. Warranties
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5.1 Each of BRC and Geron represents, warrants and undertakes to the other
that (a) it is duly incorporated, (b) it has the power to enter into
and to exercise its rights and to perform its obligations under this
Agreement, (c) it has taken and will take all necessary action to
authorise the execution of and the performance of its obligations under
this Agreement, (d) the obligations expressed to be assumed by it under
this Agreement are legal, valid and binding, and (e) neither the
execution nor performance of this Agreement will contravene any
provision of any existing law, treaty or regulation, its memorandum and
articles of association or equivalent constitutive documents or any
obligation (contractual or otherwise) which is binding upon it, or upon
any of its assets.
5.2 BRC warrants, represents and undertakes to Geron (to the intent
that the provisions of Clause 5 shall continue to have full force and
effect notwithstanding Closing) that:
5.2.1 BRC is the legal and beneficial owner of all the Sale
Shares, free and clear of any lien, charge or Encumbrance
whatsoever;
5.2.2 all the Sale Shares are fully paid up;
5.2.3 BRC has and will continue to have on the dates for
payment of the premium payable on its partly paid Share as
specified in Clause 4.3.2, cash sufficient to pay such
amounts of premium in accordance with that Clause 4.3.2,
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whether from within its own resources or by virtue of an
unconditional contractual right to receive such amounts
(whether from its Associated Companies or from Third
Parties).
5.3 Each Party acknowledges that the other Party in entering into this
Agreement is relying on the respective representations, warranties and
undertakings given by such other Party in this Agreement.
5.4 Each Party undertakes to indemnify and keep indemnified the other Party
against any loss or liability suffered by such other Party as a result
of or in connection with any breach of any of the representations,
warranties or undertakings by such Party under Clause 5.1 of this
Agreement and any reasonable costs and expenses incurred as a result of
the breach.
5.5 BRC undertakes to indemnify and keep indemnified Geron against any loss
or liability suffered by Geron as a result of or in connection with any
breach of any of the representations, warranties or undertakings by BRC
under Clause 5.2 of this Agreement and any reasonable costs and
expenses incurred as a result of the breach and without limitation this
indemnity applies to indemnify Geron for any loss incurred by Geron by
reason of the market value of the Sale Shares (regardless of the agreed
consideration for the Sale Shares payable under Clause 3.2) being less
than it would have been if the breach had not occurred.
5.6 Each Party will both before and after Closing promptly notify the other
Party in writing of any matter or thing of which such Party becomes
aware which is a breach of or inconsistent with any of the
representations, warranties or undertakings of such Party under this
Agreement.
6. Restrictions on Announcements
-----------------------------
Each of the Parties undertakes that it will not (save as required by
law or any applicable regulatory body) make any announcement in
connection with this Agreement unless the other Party shall have given
its consent to such announcement (which consents may not be
unreasonably withheld and may be given either generally or in a
specific case or cases and may be subject to conditions).
7. Costs
-----
Each Party shall pay its own costs and disbursements of and incidental
to the preparation and execution of this Agreement.
8. Stamp Duty
----------
Any stamp duty payable on the instruments of transfer and bought and
sold notes (and any other document) relating to the transfer of the
Sale Shares pursuant to this Agreement shall be borne equally by BRC
and Geron.
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9. Further Assurance
-----------------
9.1 At any time, whether before or after Closing, each of the Parties shall
do and execute, or procure to be done and executed, all necessary acts,
deeds, documents and things as may be reasonably requested of it by the
other Party to give effect to this Agreement.
9.2 At any time (whether before or after Closing) and upon a Party's
reasonable request (the "Requesting Party") from time to time, the
other Party (the "Disclosing Party") shall:
9.2.1 provide, or procure to be provided, to the Requesting
Party all information relating to the business and affairs
of the Company as conducted up to Closing which is in the
possession or under the control of the Disclosing Party or
any of its Associated Companies, but excluding any
confidential or proprietary information of the Disclosing
Party;
9.2.2 give, or procure to be given, to the Requesting Party,
its directors and any persons authorized by the Requesting
Party, access to any documents or electronic data (however
stored) containing any of the information referred to in
Clause 9.2.1, but excluding any documents or electronic data
which contain any proprietary or confidential information of
the Disclosing Party and the Requesting Party, its directors
and authorized persons may make copies of such documents or
data.
10. Assignment
----------
Save as otherwise provided herein, the benefits and obligations
conferred by this Agreement upon each of the Parties are personal to
that Party and shall not be, and shall not be capable of being,
assigned, delegated, transferred or otherwise disposed of save with the
written consent of each of the other Parties. Notwithstanding the
foregoing provisions, Geron may assign and transfer this Agreement and
the benefits and obligations thereof in connection with the merger or
consolidation of Geron with another company, or the sale of all or
substantially all of its assets (or of the portion of its business
related to the subject matter of this Agreement) provided that Geron
notifies BRC and the Company in writing prior to any such merger or
consolidation or sale.
11. Entire Agreement
----------------
This Agreement (together with any documents referred to herein or
executed contemporaneously by the Parties in connection herewith)
constitutes the whole agreement between the Parties and supersedes any
previous agreements, arrangements or understandings between them
relating to the subject matter hereof. Each of the Parties acknowledges
that it is not relying on any statements, warranties or representations
given or made by any of them relating to the subject matter hereof,
save as expressly set out in this Agreement.
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12. Variation
---------
No variation or amendment to this Agreement shall be effective unless
in writing signed by authorised representatives of each of the Parties.
13. Notices
-------
Any notice required to be given by either Party to other Party may be
made (i) by hand delivery by Federal Express or comparable private
courier service to the other Party's address given herein or such other
address as may from time to time be notified for this purpose or (ii)
by facsimile transmission to a facsimile number notified in writing by
the other Party for this purpose. Any properly addressed notice served
by hand shall be deemed to have been served on delivery and any notice
served by facsimile transmission shall be deemed to have been served
when received, as shown by a confirmed transmission report.
14. Waiver
------
No failure of any Party to exercise, and no delay in exercising, any
right or remedy in respect of any provision of this Agreement shall
operate as a waiver of such right or remedy, nor shall any single or
partial exercise of the same preclude any further exercise thereof or
the exercise of any other right, power or remedy. Without limitation,
no waiver by a Party of any breach by the other Party of any provision
of this Agreement shall be deemed a waiver of any subsequent breach of
that or any other provision in this Agreement. The rights and remedies
of each Party contained in this Agreement are cumulative and not
exclusive of any rights or remedies provided by law.
15. Severability
------------
If any provision or part of a provision of this Agreement or its
application to any Party, shall be, or be found by any authority of
competent jurisdiction to be, invalid or unenforceable, such invalidity
or unenforceability shall not affect the other provisions or parts of
such provisions of this Agreement, all of which shall remain in full
force and effect.
16. Counterparts
------------
This Agreement may be entered into on separate engrossments, each of
which when so executed and delivered shall be an original but each
engrossment shall together constitute one and the same instrument and
shall take effect from the time of execution of the last engrossment.
17. Survival of Provisions
----------------------
All of the provisions of this Agreement shall remain in full force and
effect notwithstanding Closing (except insofar as they set out
obligations which have been fully performed at Closing).
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18. Governing Law and Dispute Resolution
------------------------------------
18.1 This Agreement shall be governed by and construed in accordance with
the laws of Hong Kong.
18.2 In the event of any dispute arising out of or in connection with this
Agreement, including any question regarding its existence, validity,
breach or termination, the Parties shall attempt in good faith to reach
a resolution satisfactory to all Parties. In the event the Parties do
not reach such a resolution within thirty (30) days after the relevant
dispute arises (or such longer period as the Parties may agree in
writing), then any Party may, by written notice to the other Parties,
demand arbitration, and the relevant dispute shall be referred to and
finally resolved by arbitration in Singapore in accordance with the
Arbitration Rules of SIAC for the time being in force which rules are
deemed to be incorporated by reference into this Clause. The tribunal
for any arbitration shall consist of three arbitrators to be appointed
by the Chairman of SIAC. The language of the arbitration shall be
English. Judgment on the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof.
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Schedule 1
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Undertaking of BRC
------------------
To: TA Therapeutics Limited
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
and
Geron Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Date: 15th of June 2007
Dear Sirs
We irrevocably and unconditionally undertake to pay to the Company the sum of
US$* in respect of the premium on the one partly paid Share registered in our
name and numbered * in the register of members of the Company, such sum to be
paid in two instalments as to US$* on * and as to US$* on *, each such payment
to be made without deduction or set off in immediately available funds for value
on the relevant dates for payment specified above.
Yours faithfully
/s/ ▇▇▇ ▇▇▇▇ ▇▇▇▇
--------------------
For and on behalf of
Biotechnology Research Corporation
-------------
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
14
Schedule 2
----------
First Written Resolutions of Shareholders
-----------------------------------------
TA THERAPEUTICS LIMITED
-----------------------
RESOLUTIONS IN WRITING OF ALL THE SHAREHOLDERS OF THE COMPANY PURSUANT TO
SECTION 116B OF THE COMPANIES ORDINANCE
--------------------------------------------------------------------------------
Resolved that the following resolutions be passed as Special Resolutions:
(1) Special Resolution - Re-classification of Shares
------------------------------------------------
"That, the authorized share capital of the Company of US$36,000 divided
into two classes of shares consisting of * class A shares and * class B
shares, all of US$1.00 each, be and is hereby re-classified into one
class of unclassified ordinary shares, all of US$1.00 each, such shares
to have attached thereto the rights and privileges and be subject to
the restrictions set out in the new Articles of Association of the
Company as adopted by Special Resolution as set out below."
(2) Special Resolution - Re-designation of Shares
---------------------------------------------
"That, notwithstanding the provisions of the Articles of Association of
the Company:
(a) all the existing * issued and fully paid up class A
shares in the capital of the Company registered in the name
of Biotechnology Research Corporation Limited and all the
existing * issued and fully paid up class A shares in the
capital of the Company registered in the name of Geron
Corporation be re-designated as unclassified ordinary shares
of US$1.00 each in the capital of the Company, on the basis
of one ordinary share for each class A share held, and each
such ordinary share shall have attached thereto the rights
and privileges and be subject to the restrictions set out in
the new Articles of Association of the Company as adopted by
Special Resolution as set out below;
(b) all the existing * issued and fully paid up class B
shares in the capital of the Company registered in the name
of Biotechnology Research Corporation Limited and all the *
issued and fully paid up class B shares in the capital of
the Company registered in the name of Geron Corporation be
re-designated as unclassified ordinary shares of US$1.00
each in the capital of the Company, on the basis of one
ordinary share for each class B share held, and each such
ordinary share shall have attached thereto the rights and
privileges and be subject to the restrictions set out in the
new Articles of Association of the Company as adopted by
Special Resolution as set out below;
-------------
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
15
(c) the existing one issued class B share in the capital of
the Company registered in the name of Biotechnology Research
Corporation Limited in respect of which the nominal value of
US$1.00 has been paid up and in respect of which the premium
of HK$* has not been paid up be re-designated as one partly
paid up unclassified ordinary share of US$1.00 in the
capital of the Company, paid up as to the nominal value and
as to which a share premium of US$* shall remain payable
thereon, and such ordinary share shall have attached thereto
the rights and privileges and be subject to the restrictions
set out in the new Articles of Association of the Company as
adopted by Special Resolution as set out below; and
(d) the existing * unissued class A shares in the capital of
the Company be re-designated as unclassified ordinary shares
of US$1.00 each and such shares shall have attached thereto
the rights and privileges and be subject to the restrictions
set out in the new Articles of Association of the Company as
adopted by Special Resolution as set out below."
(3) Special Resolution - Adoption of New Articles of Association
------------------------------------------------------------
"That the regulations contained in the attached printed document be and
are hereby approved and adopted as the new Articles of Association of
the Company, in substitution for, and to the exclusion of, the existing
Articles of Association of the Company."
Dated as of 15th June 2007.
/s/ ▇▇▇ ▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------- --------------------
For and on behalf of For and on behalf of
Biotechnology Research Corporation Limited Geron Corporation
-------------
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
16
Schedule 3
----------
New Articles of Association
---------------------------
THE COMPANIES ORDINANCE (Chapter 32)
Company Limited by Shares
Articles of Association
of
TA Therapeutics Limited
(as adopted by Special Resolution dated 15 June 2007)
Preliminary
1. The regulations contained in Table "A" in the First Schedule to the
Companies Ordinance (Cap. 32) shall not apply to the Company.
2. In these Articles, unless the context requires otherwise:
"Affiliate " means, in respect of a person, any other person who has
Control of, is under the Control of or is under common Control with
the first mentioned person and includes an Affiliated Company of the
first mentioned person;
"Affiliated Company" means in relation to any Member, any Associated
Company of such Member and any company in which such Member or any
holding company of such Member holds or controls directly or
indirectly not less than 20% of the issued share capital, provided
that, for the purposes of the foregoing, the terms "company" and
"holding company" shall be deemed to include, in addition to a body
corporate, any other type of legal entity, including any limited
liability company, unincorporated association, firm, partnership,
joint venture, consortium, association, organisation or trust, and the
meanings given to the terms "company" and "holding company" in the
Ordinance shall, for the purposes of the foregoing, be deemed to
apply, mutatis mutandis, to such other entities;
"Articles" means the Articles of Association of the Company for the
time being in force;
"Associated Company" means, in relation to any Member, any subsidiary
or holding company of that Member or any other subsidiary of such
holding company , provided that, for the purposes of the foregoing,
the terms "company", "subsidiary" and "holding company" shall be
deemed to include, in addition to a body corporate, any other type of
17
legal entity, including any limited liability company, unincorporated
association, firm, partnership, joint venture, consortium,
association, organisation or trust, and the meanings given to the
terms "company" and "holding company" in the Ordinance shall, for the
purposes of the foregoing, be deemed to apply, mutatis mutandis, to
such other entities;
"Board" means the board of Directors;
"BRC" means Biotechnology Research Corporation Limited, a company
incorporated under the laws of Hong Kong;
"Chairman" means the chairman of the board of directors of the
Company;
"Control" when used with respect to any person means the possession,
directly or indirectly, of power to direct or cause the direction of
the management and policies of such person, whether through the
ownership of voting securities, the right to control the composition
of the governing body of the person or by contract or otherwise and
"Controlled" shall have a correlative meaning and a "change in
Control" shall be deemed to have occurred if any person having
previously Controlled the relevant person, ceases to do so, or if any
person acquires Control of the relevant person;
"Directors" means the Directors of the Company for the time being, the
sole Director or as the case may be the Directors assembled as a board
or a committee of the board;
"Geron" means Geron Corporation, a company incorporated under the laws
of the State of Delaware;
"Hong Kong" shall have the same meaning as defined in the
Interpretation and General Clauses Ordinance (Cap.1);
"Member" means a person who is registered as the holder of shares in
the capital of the Company;
"Memorandum of Association" means the Memorandum of Association of the
Company for the time being in force;
"Month" means calendar month;
"Office" means the registered office for the time being of the
Company;
"Ordinance" means the Companies Ordinance (Cap. 32) as modified from
time to time;
"Paid up" or "paid" includes credited as paid up or paid;
"Register" means the register of Members to be kept pursuant to
Ordinance;
"Relevant Percentage" means, in relation to a Member, a fraction, the
numerator of which is the total number of Shares held by that Member
at the time in question and the denominator of which is the total
number of Shares in issue at that time;
18
Reserve Director" means a person nominated as a reserve Director of
the Company under section 153A(6) of the Ordinance;
"Seal" means the common seal of the Company or, where appropriate, any
official seal for use in any particular state, country or territory
outside Hong Kong or, where appropriate, any securities seal for use
by the Company in accordance with the Ordinance;
"Secretary" means any person appointed to perform the duties of the
Secretary of the Company and includes any person appointed to perform
such duties temporarily and any duly appointed assistant Secretary;
"Share" means a share in the share capital of the Company having the
rights and benefits and subject to the restrictions set out in these
Articles;
"Third Party" means any person other than BRC, Geron or any of their
Affiliated Companies;
"US$" means United States dollars, the lawful currency of the United
States of America;
"Year" means calendar year.
Any provision of these Articles that refers (in whatever words) to:
(a) the Directors;
(b) the Board of Directors;
(c) a majority of the Directors; or
(d) a specified number of percentage of the Directors of the Company
shall, unless the context otherwise requires, apply with necessary
modifications in case the Company has only one Director.
Any provision of these Articles that refers (in whatever words) to:
(a) the Members;
(b) a majority of Members; or
(c) a specified number or percentage of Members of the Company
shall, unless the context otherwise requires, apply with necessary
modifications in case the Company has only one Member.
Wherever any provision of these Articles (except a provision for the
appointment of a proxy) requires that a communication as between the
Company, its Directors or Members be effected in writing, the
requirement may be satisfied by the communication being given in the
form of an electronic record unless the person to whom the
communication is given signifies refusal to communications being given
to him in that form.
19
Expressions used in these Articles referring to "writing" or "written"
shall, unless the contrary intention appears, be construed as
including references to printing, lithography, photography and other
modes of representing or reproducing words in a visible form.
Unless the context otherwise requires, words or expressions used in
these Articles shall have the same meaning as in the Ordinance or any
statutory modification thereof in force at the date at which these
Articles become binding on the Company.
The singular includes the plural and vice versa. Words importing any
gender include the other genders.
The headings shall not affect the construction of these Articles.
Private Company
3. The Company shall be a private company, and accordingly the
following provisions shall have effect:-
(a) the Company shall not offer any of its shares or
debentures to the public for subscription;
(b) the number of Members (not including persons who are in
the employment of the Company and persons who, having been
formerly in the employment of the Company, were while in
that employment, and have continued after the determination
of that employment to be, Members) shall not at any time
exceed fifty provided that where two or more persons hold
one or more shares in the Company jointly, they shall, for
the purposes of this Article, be treated as a single Member;
and
(c) the right to transfer shares in the Company shall be
restricted in the manner hereinafter provided.
19. Shares
------
4. (A) Subject to the provisions of the Ordinance (and in
particular section 57B thereof) and of the Articles relating
to new shares and of Article 5, all unissued shares in the
Company including any new shares created upon an increase of
capital shall be under the control of the Directors who may
offer, allot, grant options over or otherwise dispose of
them to such persons, on such terms and conditions and at
such times as the Directors shall in their sole and absolute
discretion think fit, but so that no shares shall be issued
at a discount, except in accordance with the provisions of
the Ordinance.
(B) Subject to the provisions, if any, in that regard in the
Memorandum of Association or these Articles, and without
prejudice to any special rights previously conferred on the
holders of existing shares, any share may be issued with
such preferred, deferred, or other special rights, or such
restrictions, whether in regard to dividend, voting, return
of share capital, or otherwise, as the Company may from time
to time by special resolution determine, (or, in the absence
of any such determination or so far as the same shall not
20
make specific provision, as the Directors may determine) and
any preference share or any other share may, with the
sanction of a special resolution, be issued on the terms
that it is, or at the option of the Company is liable, to be
redeemed.
5. (A) The Company will not issue any new Shares to any person
unless the Board of Directors has offered each of BRC and
Geron (for the purposes of this Article 5, each, a "Current
Member" and collectively the "Current Members") the
opportunity, but without any obligation, to subscribe for
such Shares on a pro rata basis in accordance with their
then Relevant Percentage (a "New Subscription"), such offer
to be made by written notice to the Current Members
specifying (a) the aggregate amount to be raised by such new
issue; (b) the number of Shares offered to the Current
Member, (c) the terms of the offer (including the
subscription price per Share to be subscribed). If it is
intended or anticipated by the Company that the new Shares
shall be subscribed wholly by a Current Member and/or any of
its Affiliates, then the subscription price per Share to be
subscribed shall be such amount as is agreed by the Company
and all the Current Members or, failing such agreement
within seven (7) days of written notice from the Company
requiring such agreement, not less than the fair market
value thereof as appraised by a reputable independent
expert.
(B) If either Current Member (a "Diluting Current Member")
fails to apply for its pro rata entitlement to the new
Shares in accordance with this Article 5 within a period of
14 days after from the Board's call therefor, then the other
Current Member shall have the right within 14 days
thereafter to elect by written notice to the Board and to
the Diluting Current Member to subscribe for both the Shares
offered to it and the Shares offered to the Diluting Current
Member, on the same terms as previously offered to both the
Current Members, and the Current Members shall promptly
procure that the necessary authorisations are given
(including the passing of any resolutions of Current
Members) and steps taken for such Shares to be allotted and
issued to such other Current Member, such Shares to be paid
up and issued in accordance with the terms of the offer as
specified in the notice of the offer given under Article
5(A).
(C) If the subscriptions elected to be made by the Current
Members in accordance with Articles 5(A) and 5(B) are
insufficient to provide the Company with funding in the
aggregate amount specified in the notice given under Article
5(A), then the Company may, during a period of 6 months
following the last date for payment of the subscriptions
under Articles 5(A) and 5(B) offer the balance of any Shares
to any other person or person for subscription on such terms
as the Board of Directors may determine, provided always
that the subscription price per Share to be subscribed shall
not be less than the price offered to the Current Members
under Article 5(A).
(D) Subject to Article 5(E), the provisions of Articles 5(A)
to 5(C) shall apply in the same manner, adjusted as
necessary, to the issue of any securities convertible into
or exchangeable for Shares and the grant by the Company of
any rights (by way of option or warrant or otherwise) to
subscribe for or acquire Shares.
21
(E) Nothing in this Article 5 shall restrict or apply to the
grant of options or the issue of Shares in accordance with
the terms of any share option or share incentive scheme
established in accordance with the terms of any agreement
between the Members.
Modification of Rights
----------------------
6. (A) Subject to Article 102, all or any of the rights
attached to any class of shares in the capital of the
Company for the time being may, at any time, as well before
as during liquidation, be altered or abrogated either with
the consent in writing of the holders of not less than
three-fourths of the issued shares of the class or with the
sanction of a special resolution passed at a separate
general meeting of the holders of shares of the class, and
all the provisions contained in these Articles relating to
general meetings shall mutatis mutandis apply to every such
meeting, but so that the quorum thereof shall be not less
than two persons personally present and holding or
representing by proxy one-third in nominal value of the
issued shares of the class, and that any holder of shares of
the class present in person or by proxy may demand a poll,
and that each holder of shares of the class present in
person or by proxy shall on a poll be entitled to one vote
for each share of the class held by him, and if at any
adjourned meeting of such holders such quorum as aforesaid
is not present, any two holders of shares of the class who
are personally present in person or by proxy shall be a
quorum. If the Company has only one member, one member
present in person or by proxy shall be a quorum for all
purposes.
(B) The foregoing provisions of this Article shall apply to
the variation or abrogation of the rights attached to some
only of the shares of any class as if each group of shares
of the class differently treated formed a separate class,
the rights whereof are to be varied.
(C) The rights conferred upon the holders of the shares of
any class shall not, unless otherwise expressly provided by
the terms of issue of the shares of that class, be deemed to
be varied by the creation or issue of further shares ranking
pari passu therewith.
7. (A) The Company may in connection with the issue of any
shares exercise all powers of paying interest out of capital
and of paying commission and brokerage conferred or
permitted by the Ordinance.
(B) If any share is issued partly paid and, by the terms and
conditions on which such share is issued, the amount of any
premium payable on such share is to be determined by the
holder of such share at any time following such issue in
accordance with any agreement in writing between all of the
Members, then such share shall be deemed to be fully paid
when the nominal amount, and the premium thereon as
determined by the holder in accordance with any agreement in
writing between all of the Members and such terms of issue,
shall have been paid thereon.
22
Redemption and Purchase of Shares
8. (A) Subject always to the provisions of the Ordinance, the
Company may:
(i) issue shares which are to be redeemed or are liable
to be redeemed at the option of the Company or holder;
(ii) purchase its own shares (including any redeemable
shares); and
(iii) make a payment in respect of the redemption or
purchase of its own shares otherwise than out of profits or
the proceeds of a fresh issue of its shares.
For purposes of Article 8(A), the Directors are authorised
to make statements or take such other steps as may be
required by the Ordinance in relation to the redemption or
purchase by the Company of its own shares out of capital.
(B) The redemption of shares may be effected upon such terms
and in such manner as the Company before or upon issue of
the shares shall by ordinary resolution determine.
General
9. Except as required by law, no person shall be recognised by the
Company as holding any share upon any trust, and the Company shall not
be bound by or be compelled in any way to recognise (even when having
notice thereof) any equitable, contingent, future or partial interest
in any share or any other rights in respect of any share except an
absolute right to the entirety thereof in the registered holder.
10. Subject always to the provisions of the Ordinance, the Directors may
exercise the power of the Company to purchase or otherwise acquire its
own shares and/or warrants upon such terms and subject to such
conditions as the Directors may deem fit.
11. Subject always to the provisions of the Ordinance, the Company may
give financial assistance for the purpose of or in connection with a
purchase made or to be made by any person of, or a subscription for,
any shares in the capital of the Company or its holding company, or
for the purpose of or in connection with reducing or discharging any
liability so incurred. The Directors are authorised to make statements
or take such other steps as may be required by the Ordinance in
relation to the giving of financial assistance to acquire shares in
the Company.
Register and Share Certificates
12. The Directors shall cause to be kept a Register and there shall be
entered therein the particulars required under the Ordinance. No
person shall become a member until his name shall have been entered
into the Register.
23
13. (A) Every person whose name is entered as a Member in the
Register shall, without payment, be entitled to a
certificate under seal specifying the share or shares held
by him and the amount paid up thereon, provided that in
respect of a share or shares held jointly by several persons
the Company shall not be bound to issue more than one
certificate, and delivery of a certificate for a share to
one of several joint holders shall be sufficient delivery to
all.
(B) If a share certificate is defaced, lost or destroyed, it
may be renewed on payment of such fee, if any, not exceeding
one dollar, and on such terms, if any, as to evidence and
indemnity, as the Directors think fit.
14. If any share shall stand in the names of two or more persons, the
person first named in the Register shall be deemed the sole holder
thereof as regards service of notices and, subject to the provisions
of the Articles, all or any other matters connected with the Company,
except the transfer of such share.
Lien
15. The Company shall have a first and paramount lien on every share
(not being a fully paid share) for all moneys (whether presently
payable or not) called or payable at a fixed time in respect of that
share, and the Company shall also have a first and paramount lien on
all shares (other than fully paid shares) standing registered in the
name of a single person for all monies presently payable by him or his
estate to the Company and whether the same shall have been incurred
before or after notice to the Company of any equitable or other
interest of any person other than such Member and whether the period
for the payment or discharge of the same shall have actually arrived
or not and notwithstanding that the same are joint debts or
liabilities of such Member or his estate and any other person, whether
a Member or not. Notwithstanding the foregoing, the Directors may at
any time declare any share to be wholly or in part exempt from the
provisions of this Article. The Company's lien, if any, on a share
shall extend to all dividends, bonuses and distributions payable in
respect thereof.
16. The Company may sell, in such manner as the Directors think fit,
any shares on which the Company has a lien, but no sale shall be made
unless some sum in respect of which the lien exists is presently
payable, nor until the expiration of 14 days after a notice in
writing, stating and demanding payment of such part of the amount in
respect of which the lien exists as is presently payable, has been
given to the registered holder for the time being of the share, or the
person entitled thereto by reason of the death, mental disorder or
bankruptcy of the registered holder.
17. For giving effect to any such sale the Directors may authorise
some person to transfer the shares sold to the purchaser thereof. The
purchaser shall be registered as the holder of the shares comprised in
any such transfer and he shall not be bound to see to the application
of the purchase money, nor shall his title to the shares be affected
by any irregularity or invalidity in the proceedings in reference to
the sale.
18. The net proceeds of the sale shall be received by the Company and
after the payment of the costs of such sale shall be applied in
payment of such part of the amount in respect of which the lien exists
as is presently payable, and the residue shall (subject to a like lien
24
for sums not presently payable as existed upon the shares prior to the
sale) be paid to the person entitled to the shares at the date of the
sale.
Calls on Shares
19. The Directors may from time to time, or at times determined in
accordance with any agreement in writing between the Members, make
such calls as they think fit upon the Members in respect of all or any
part of the monies unpaid on the shares held by them respectively
(whether on account of the nominal value of the shares and/or by way
of premiums) and not by the conditions of allotment thereof made
payable at fixed times and each Member shall (subject to receiving at
least 14 days' notice specifying the time or times of payment) pay to
the Company at the time or times so specified the amount called on his
shares. A call shall be deemed to have been made when the resolution
of the Directors authorising such call is passed and may be made
payable by instalments. A call may be revoked or postponed as the
Directors may determine. A person upon whom a call is made shall
remain liable on such call notwithstanding any subsequent transfer of
the shares in respect of which the call was made.
20. The joint holders of a share shall be jointly and severally liable
to pay all calls and instalments due in respect of such share or other
monies due in respect thereof.
21. The Directors may from time to time at their discretion extend the
time fixed for any call and may extend such time as regards all or any
of the Members whom, by reason of residence outside Hong Kong or other
cause, the Directors may deem entitled to any such extension.
22. If a sum called in respect of a share is not paid before or on the
day appointed for payment thereof, the person from whom the sum is due
shall pay interest upon the sum at the rate of 20 per cent per annum
from the day appointed for the payment thereof to the time of the
actual payment, but the Directors shall be at liberty to waive payment
of that interest wholly or in part.
23. No holder of a partly paid share shall be entitled to receive any
dividend or bonus or to be present and vote (save as proxy for another
Member who is entitled) at any general meeting, either personally or
by proxy or authorised representative or be reckoned in a quorum or to
exercise any other privilege as a holder of a share unless all calls
and instalments due from him to the Company in respect of such partly
paid share, whether alone or jointly with any other person, together
with interest and expenses (if any) shall have been paid.
24. Any sum (whether on account of the nominal value of the share or
by way of premium) which by the terms of issue of a share becomes
payable upon allotment or at any fixed date or on dates determined in
accordance with any agreement in writing between the Members shall for
all the purposes of the Articles be deemed to be a call duly made,
notified and payable on the date on which by the terms of issue the
same becomes payable. In case of non-payment all the relevant
provisions of the Articles as to payment of interest, forfeiture or
otherwise shall apply as if such sum had become payable by virtue of a
call duly made and notified.
25
25. The Directors may make arrangements on the issue of shares for
differences in the amount of calls to be paid and in the times of
payment between one holder and another.
26. The Directors may, if they think fit, receive from any Member
willing to advance the same all or any part of the monies uncalled and
unpaid upon any shares held by him and upon all or any of the monies
so advanced may (until the same would, but for such advance, become
presently payable) pay interest at such rate (not exceeding, without
the sanction of the Company in general meeting, 6 per cent per annum)
as may be agreed upon between the Member paying the sum in advance and
the Directors. The Directors may at any time repay the amount so
advanced or any part thereof upon giving to such Member not less than
one month's notice in writing of their intention to do so, unless
before the expiration of such notice the amount proposed to be repaid
shall have been called up on the shares in respect of which it was
advanced in which event the same shall be applied in or towards
satisfaction of the call under the applicable provisions of the
Articles.
Forfeiture of Shares
27. If a Member fails to pay in full any call or instalment of a call
on the day appointed for the payment thereof, the Directors may at any
time thereafter serve a notice on him requiring payment of so much of
the call or instalment as is unpaid, together with any interest which
may have accrued and which may accrue up to the date of payment and
all other costs, charges and expenses incurred or suffered by the
Company in connection with the failure to pay any call.
28. The notice shall name a further day (not earlier than 14 days
after the date of service of the notice) on or before which the
payment required by the notice is to be made, and shall state that in
the event of non-payment at or before the time appointed the shares in
respect of which the call was made will be liable to be forfeited.
29. If the requirements of any such notice as aforesaid are not
complied with, any share in respect of which the notice has been given
may at any time thereafter, before the payment required by the notice
has been made, be forfeited by a resolution of the Directors to that
effect. Such forfeiture shall include all dividends declared in
respect of the forfeited shares but not paid before forfeiture. The
Directors may accept a surrender of any share liable to be forfeited
hereunder and, in such case, references in these Articles to
forfeiture shall include surrender.
30. Until cancelled in accordance with the requirements of the
Ordinance, any share so forfeited shall be deemed to be the property
of the Company and may be sold, reallotted or otherwise disposed of
either to the person who was, before the forfeiture, the holder
thereof or entitled thereto or to any other person on such terms and
in such manner as the Directors think fit and at any time before a
sale or disposition thereof the forfeiture may be cancelled on such
terms as the Directors think fit.
31. A person whose shares have been forfeited shall cease to be a
Member in respect of the forfeited shares, but shall, notwithstanding,
remain liable to pay to the Company all monies which, at the date of
forfeiture, were presently payable by him to the Company in respect of
the shares (together with interest thereon at the rate of 20 per cent
per annum from the date of forfeiture if the Directors think fit to
enforce payment of such interest and all other costs, charges and
26
expenses incurred and suffered by the Company in connection with the
failure to pay any call), but his liability shall cease if and when
the Company shall receive payment in full of all such monies in
respect of the shares. For the purposes of this Article, any sum which
by the terms of issue of a share is payable thereon at a fixed time or
at a time determined in accordance with any agreement in writing
between the Members which time is subsequent to the date of
forfeiture, whether on account of the nominal value of the share
and/or by way of premium, shall, notwithstanding that such time has
not yet arrived be deemed to be payable at the date of forfeiture and
the same shall become due and payable immediately upon the forfeiture
but interest thereon shall only be payable in respect of any period
between the said fixed time and, if later, the date of actual payment.
32. A statement in writing from a Director or the Secretary that a share
in the Company has been duly forfeited or surrendered on a date stated
in the statement, shall be conclusive evidence of the facts therein
stated as against all persons claiming to be entitled to the share.
The Company may receive the consideration, if any, given for the share
on any sale or disposition thereof and may, subject to the
restrictions contained in the Articles execute a transfer of the share
in favour of the person to whom the share is sold or disposed of, and
he shall thereupon be registered as the holder of the share, and shall
not be bound to see to the application of the purchase money, if any,
nor shall his title to the share be affected by any irregularity or
invalidity in the proceedings in reference to the forfeiture, sale or
disposal of the share.
33. When any share shall have been forfeited, notice of the resolution
shall be given to the Member in whose name it stood immediately prior
to the forfeiture and an entry of the forfeiture, with the date
thereof, shall forthwith be made in the Register.
34. (A) Notwithstanding any such forfeiture as aforesaid, the
Directors may at any time, before any shares so forfeited
shall have been sold, reallotted or otherwise disposed of,
anul the forfeiture thereof upon such terms (if any) as they
think fit.
(B) The forfeiture of a share shall not prejudice the right
of the Company to any call already made or instalment
payable thereon.
(C) The provisions of these Articles as to forfeiture shall
apply in the case of non-payment of any sum which, by the
terms of issue of a share, becomes payable at a fixed time
or at a time determined in accordance with any agreement in
writing between the Members, whether on account of the
nominal value of the share or by way of premium, as if the
same had been payable by virtue of a call duly made and
notified.
Transfer of Shares
35. (A) All transfers of shares shall be effected by transfer in
writing in any usual or common form or in any other form
acceptable to the Directors and may be under hand only.
(B) The instrument of transfer shall be signed by or on
behalf of both the transferor and the transferee.
27
(C) The transferor shall remain the holder of the shares
concerned until the name of the transferee is entered in the
Register in respect thereof.
36. (A) The Directors in their absolute discretion and without
assigning any reason therefor may decline to register any
transfer of any share whether or not it is a fully paid
share and shall refuse to register any transfer of shares if
registration thereof would cause the number of Members to
exceed the number permitted under these Articles. The
Directors shall not register a transfer to a person who is
known to them to be an infant, bankrupt or person of unsound
mind provided that the Directors shall not be bound to
enquire into the age or soundness of mind of any transferee
or whether or not he is a bankrupt. The Directors may also
decline to register any transfer unless (a) the instrument
of transfer is in respect of only one class of shares; (b)
in the case of a transfer to joint holders, the number of
joint holders to whom the shares are to be transferred does
not exceed three; and (c) the shares concerned are free of
any lien in favour of the Company.
(B) Save as provided in paragraph (I) of this Article and
subject to any agreement in writing between all of the
Members no transfer or disposal of any shares or any
interest in any shares shall be made by a Member except in
compliance with the following provisions of this Article and
no Member shall otherwise sell, mortgage, charge or
otherwise dispose of or encumber any shares or assign or
otherwise purport to deal with the beneficial interest
therein or any right in relation thereto separate from the
legal interest.
(C) A Member shall be entitled to transfer its shares to a
Third Party who has made a bona fide offer therefor provided
that before transferring its shares such Member (the
"Transferor") shall give a notice in writing (a "Transfer
Notice") to the other Member (the "Recipient") that it
desires to transfer the same. The Transfer Notice shall
specify:
(i) the number of shares which the Transferor wishes to
transfer (which may be all or part only of the
shares then held by the Transferor)
(the "Relevant Shares");
(ii) the name of the Third Party who has made the bona
fide offer for the Relevant Shares
(the "Prospective Purchaser");
(iii) the price which the Prospective Purchaser has
offered for the Relevant Shares; and
(iv) details of any other material terms of the offer
made by the Prospective Purchaser and any other
material terms or circumstances known to the
Transferor which affect or may affect the offer.
(D) The Recipient may within a period of one month after the
Transfer Notice is given require the Transferor to produce
to it such further evidence as it may reasonably require to
enable it to establish the bona fides of the offer by the
Prospective Purchaser.
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(E) The Recipient shall be entitled within a period of three
months after the Transfer Notice is given, or, if later, the
provision to it of such further evidence, to serve a
purchase notice (a "Purchase Notice") on the Transferor
requiring it to sell the Relevant Shares to it at the same
price and on the same terms as those offered by the
Prospective Purchaser (as set out in the Transfer Notice).
(F) Subject to paragraph (H) of this Article, if the
Recipient serves a Purchase Notice within the said three
month period referred to in paragraph (E), the Transferor
shall be bound upon payment to transfer such of the Relevant
Shares to the Recipient as he has applied for. The purchase
shall be completed at a place and time to be appointed by
the Directors being not less than three days nor more than
ten days after the Purchase Notice is served and the
Directors shall be bound to register the transfer.
(G) If the Recipient has not served a Purchase Notice within
the period referred to in paragraph (E), the Transferor
shall be entitled to sell the Relevant Shares to the
Prospective Purchaser at the price and on the terms set out
in the Transfer Notice provided that if such sale is not
completed within six months after the Transfer Notice is
given the right to sell the Relevant Shares to the
Prospective Purchaser shall lapse. The Directors shall be
bound to register a transfer effected pursuant to this
paragraph (G) provided that the registration of such
transfer does not cause a breach of Article 3(b).
(H) If Purchase Notices shall have been served in respect of
part only of the Relevant Shares, the Transferor shall be
entitled to sell the remaining Relevant Shares to the
Prospective Purchaser in accordance with the provisions of
paragraph (G) of this Article or by notice in writing to the
Recipient may withdraw all the Relevant Shares from sale in
which event the Transfer Notice shall be deemed to have been
withdrawn and no transfers shall take place.
(I) The restrictions contained in paragraph (B) of this
Article shall not apply to any transfer:
(i) by any Member of all of its shares to (i) a
wholly-owned subsidiary of the ultimate holding
company of the transferor Member; (ii) the ultimate
holding company of the transferor Member; or (iii) a
wholly-owned subsidiary of the transferor Member; or
(ii) by the sole Member; or
(iii) to which the consent in writing of all the Members
for the time being is given.
(J) For the purpose of ensuring that a transfer of shares is
a permitted transfer or that no circumstances have arisen
whereby a Transfer Notice is required to be given or to be
deemed to have been given hereunder the Directors may from
time to time require any Member or any person named as
transferee in any transfer lodged for registration to
furnish to the Company such reasonable information and
evidence as the Directors may think fit regarding any matter
29
which they may deem relevant to such purpose. Failing such
information or evidence being furnished to the reasonable
satisfaction of the Directors within a reasonable time after
request, the Directors shall be entitled to refuse to
register the transfer in question or (in case no transfer is
in question) to require by notice in writing that a Transfer
Notice be given in respect of the shares concerned. If such
information or evidence discloses that a Transfer Notice
ought to have been given in respect of any shares the
Directors may by notice in writing require that a Transfer
Notice be given in respect of the shares concerned.
37. Every instrument of transfer shall be left at the Office for
registration accompanied by the certificate of the shares to be
transferred and such other evidence as the Directors may require to
prove the title of the transferor or his right to transfer the shares.
If the Directors refuse to register a transfer they shall within 2
months after the date on which the transfer was lodged with the
Company send to the transferor and transferee notice of the refusal.
All instruments of transfer which are registered may be retained by
the Company but any instrument of transfer which the Directors may
decline to register shall (except in the case of fraud) be returned to
the person depositing the same together with the share certificate
within 2 months after the date on which the transfer was lodged with
the Company.
38. The Register may be closed during such time or times as the
Directors may from time to time think fit (not exceeding a total of 30
days in any year).
20. Untraced Shareholders
---------------------
39. The Company may sell any shares in the Company if:
(i) all cheques or warrants, being not less than 3 in total
number, or any sum payable in cash to the holder of such
shares in respect of them sent in the manner authorised by
these Articles have remained uncashed for a period of 12
years;
(ii) the Company has not at any time during the relevant
period received any indication of the existence of the
Member or of any person who is entitled to such shares; and
(iii) the Company has caused an advertisement to be inserted
in at least one leading English language and one leading
Chinese language daily Hong Kong newspaper giving notice of
its intention to sell such shares and a period of 3 months
has elapsed since the date of such advertisement.
To give effect to any such sale the Directors may authorise any person
to transfer the said shares and an instrument of transfer signed or
otherwise executed by or on behalf of such person shall be as
effective as if it has been executed by the registered holder or the
person entitled by transmission to such shares, and the purchaser
shall not be bound to see to the application of the purchase monies
nor shall his title to the shares be affected by any irregularity or
invalidity in the proceedings relating to the sale. The net proceeds
of the sale shall belong to the Company and upon receipt by the
Company of such net proceeds it shall become indebted to the former
Member for an amount equal to such net proceeds. No trust shall be
created in respect of such debt and no interest shall be payable in
respect of it and the Company shall not be required to account for any
30
monies earned from the net proceeds which may be employed in the
business of the Company or as it thinks fit. Any sale under this
Article shall be valid and effective notwithstanding that the Member
holding the shares sold is dead, bankrupt or otherwise under any legal
disability or incapacity.
21. Transmission of Shares
----------------------
40. In case of the death of a Member, the survivor or survivors where
the deceased was a joint holder, and the legal personal
representatives of the deceased where he was a sole holder, shall be
the only persons recognised by the Company as having any title to his
interest in the share provided that nothing herein contained shall
release the estate of the deceased (whether a sole or joint holder)
from any liability in respect of any share which had been jointly held
by him with other persons.
41. Any person to whom the right to any share has been transmitted by
operation of law may, upon such evidence being produced as may from
time to time properly be required by the Directors and subject as
hereinafter provided, elect either to be registered himself as holder
of the share or to have some person nominated by him registered as the
transferee thereof, but the Directors shall, in either case, have the
same right to decline or suspend registration as they would have had
in the case of a transfer of the share by that Member before the event
giving rise to the transmission. The merger of any two or more
corporations under the laws of one or more foreign countries or states
shall constitute a transmission by operation of law for the purposes
of this Article.
42. If the person so becoming entitled shall elect to be registered
himself, whether in whole or in part, he shall deliver or send to the
Company a notice in writing signed by him stating that he so elects.
If he shall elect to have another person registered, he shall testify
his election by executing to that person a transfer of the relevant
shares. All the limitations, restrictions and provisions of the
Articles (except paragraphs (B) - (I) (inclusive) of Article 36)
relating to the right to transfer and the registration of transfers of
shares shall be applicable to any such notice or transfer as aforesaid
as if the transmission had not occurred and the notice or transfer
were a transfer signed by the registered holder.
43. Any person to whom the right to any share has been transmitted by
operation of law shall be entitled to the same dividends and other
advantages to which he would be entitled if he were the registered
holder of the share, provided always that the Directors may at any
time give notice requiring any such person to elect either to be
registered himself or to transfer the share, and if the notice is not
complied with within 90 days the Directors may thereafter withhold
payment of all dividends, bonuses or other monies payable in respect
of the share until the requirements of the notice have been complied
with but, subject to the requirements of Article 67 being met, such
person may vote at meetings of the Company.
44. Any person to whom the right to any shares in the Company has been
transmitted by operation of law shall, if the Directors refuse to
register the transfer, be entitled to call on the Directors to furnish
within 28 days a statement of the reasons for the refusal.
31
Alteration of Capital
45. The Company may from time to time by ordinary resolution increase
the share capital by such sum, to be divided into shares of such
amount, as the resolution shall prescribe.
46. Except so far as otherwise provided by the conditions of issue or
by these Articles, any new shares issued as a consequence of an
alteration of capital shall be subject to the same provisions with
reference to the payments of calls and instalments, liens, transfer,
transmission, forfeiture, cancellation, surrender, voting and
otherwise as the shares in the capital of the Company existing at the
date of creation of such new shares.
47. The Company may by ordinary resolution:-
(a) consolidate and divide all or any of its share capital
into shares of a larger amount than its existing shares;
(b) sub-divide its existing shares, or any of them, into
shares of a smaller amount than is fixed by the Memorandum
of Association subject, nevertheless, to the provisions of
section 53(1)(d) of the Ordinance and so that the resolution
whereby any share is subdivided may determine that as
between the holders of the shares resulting from such
subdivision one or more of the shares may, as compared with
the others, have any such preferred, deferred or other
special rights or be subject to any such restrictions as the
Company has power to attach to unissued or new shares; and
(c) cancel any shares which, at the date of the passing of
the resolution, have not been taken or agreed to be taken by
any person.
Where any difficulty arises in regard to any consolidation and
division under paragraph (a) of Article 47, the Directors may settle
the same as they think expedient and in particular may arrange for the
sale of the shares representing fractions and the distribution of the
net proceeds of sale in due proportion amongst the members who would
have been entitled to the fractions, and for this purpose the
Directors may authorise some person to transfer the shares
representing fractions to the purchaser thereof, who shall not be
bound to see to the application of the purchase money nor shall his
title to the shares be affected by any irregularity or invalidity in
the proceedings relating to the sale.
48. Subject to Article 102, the Company may by special resolution
reduce its share capital, any capital redemption reserve fund or any
share premium account in any manner prescribed by law.
General Meetings
49. The Company shall in each year hold a general meeting as its
annual general meeting in addition to any other meetings in that year,
and shall specify the meeting as such in the notices calling it, and
not more than 15 months shall elapse between the date of one annual
general meeting of the Company and that of the next. Provided that so
long as the Company holds its first annual general meeting within 18
months of its incorporation, it need not hold it in the year of its
incorporation or in the following year. The annual general meeting
shall be held at such time and place as the Directors shall appoint.
32
All general meetings other than annual general meetings shall be
called extraordinary general meetings.
50. The Directors may, whenever they think fit, convene an
extraordinary general meeting, and extraordinary general meetings
shall also be convened on such requisition, or in default may be
convened by such requisitionists, as provided by section 113 of the
Ordinance. If at any time there are not within Hong Kong sufficient
Directors capable of acting to form a quorum, any Director or any 2
Members who are entitled to attend and vote at a general meeting may
convene an extraordinary general meeting in the same manner as nearly
as possible as that in which a meeting may be convened by the
Directors.
Notice of General Meetings
51. An annual general meeting and a meeting called for the passing of
a special resolution shall be called by 21 days' notice in writing at
the least, and a meeting of the Company other than an annual general
meeting or a meeting for the passing of a special resolution shall be
called by 14 days' notice in writing at the least or such shorter
notice as consented to by the Members in writing. The notice shall be
exclusive of the day on which it is served or deemed to be served and
of the day for which it is given, and shall specify the place, the day
and the hour of meeting and, in case of special business, the general
nature of that business. The notice convening an annual general
meeting shall specify the meeting as such and the notice convening a
meeting to pass a special resolution shall specify the intention to
propose the relevant resolution as a special resolution.
52. All business shall be deemed special that is transacted at an
extraordinary general meeting and at an annual general meeting, with
the exception of sanctioning a dividend, the reading, consideration
and adoption of accounts, balance sheets, and the reports of the
Directors and the auditors, the election of Directors in the place of
those retiring at the meeting, the appointment of the auditors (where
special notice of the resolution for such appointment is not required
by the Ordinance) and the fixing, or the determination of the method
of fixing, of the remuneration of the auditors.
53. Subject to the foregoing Article, the notice of every general
meeting shall be given in the manner hereinafter mentioned or in such
other manner, if any, as may be prescribed by the Company in general
meeting to such persons as are under the Articles entitled to receive
such notices from the Company provided that subject to the provisions
of the Ordinance a meeting of the Company shall, notwithstanding that
it is called by shorter notice than that specified in this Article, be
deemed to have been duly called if it is so agreed:
(a) in the case of a meeting called as the annual general
meeting, by all the Members entitled to attend and vote
thereat; and
(b) in the case of any other meeting, by a majority in
number of the Members having a right to attend and vote at
the meeting, being a majority together holding not less than
95 per cent in nominal value of the shares giving that
right.
33
54. The accidental omission to give notice of a meeting to, or the
non-receipt of notice of a meeting by, any person entitled to receive
notice shall not invalidate the proceedings at any meeting.
55. In cases where instruments of proxy are or are to be sent out with
notices, the accidental omission to send such instruments of proxy to
or the non-receipt of such instruments of proxy by any person entitled
to receive notice shall not invalidate any resolution passed or any
proceedings at any such meeting.
Proceedings at General Meetings
56. For all purposes the quorum for a general meeting shall be at
least one duly authorised representative of BRC and at least one duly
authorised representative of Geron. If the Company has only one
Member, the sole Member present in person or by proxy shall constitute
a quorum. No business shall be transacted at any general meeting
unless the requisite quorum shall be present at the commencement of
the meeting provided that the absence of a quorum shall not preclude
the appointment, choice or election of a chairman which shall not be
treated as part of the business of the meeting.
57. If within 15 minutes from the time appointed for the meeting a
quorum is not present, the meeting shall stand adjourned to the same
day in the next week and at such time and place as shall be decided by
the Directors and if at the adjourned meeting a quorum is not present
within 15 minutes from the time appointed for the meeting, a quorum at
such adjourned meeting shall consist of the duly authorised
representative(s) of any Member or Members present at such adjourned
meeting and the business for which the meeting was called may be
transacted.
58. Each Director shall be entitled to attend and speak at any general
meeting of the Company and at any separate meeting of the holders of
any class of shares in the Company.
59. The Chairman shall preside as chairman at every general meeting of
the Company. If at any meeting the Chairman is not present within 15
minutes after the time appointed for holding the meeting, the Member
or Members present shall choose one of their number to be chairman.
60. The chairman may, with the consent of any meeting at which a
quorum is present and shall if so directed by the meeting, adjourn the
meeting from time to time (or sine die) and from place to place, but
no business shall be transacted at any adjourned meeting other than
the business left unfinished at the meeting from which the adjournment
took place. Where a meeting is adjourned sine die, the time and place
for the adjourned meeting shall be fixed by the Directors. When a
meeting is adjourned for 21 days or more, not less than 7 days' notice
of the adjourned meeting shall be given in like manner as in the case
of the original meeting. Save as aforesaid it shall not be necessary
to give any notice of an adjournment or of the business to be
transacted at an adjourned meeting.
61. At any general meeting a resolution put to the vote of the meeting
shall be decided on a show of hands, unless a poll is (before or on
the declaration of the result of the show of hands) demanded by any
Member entitled to vote present in person or by proxy or
representative and, unless a poll is so demanded, a declaration by the
34
chairman that a resolution has, on a show of hands, been carried, or
carried unanimously, or by a particular majority, or lost, and an
entry to that effect in the book of the proceedings of the Company,
shall be conclusive evidence of the fact, without proof of the number
or proportion of the votes recorded in favour of or against that
resolution.
62. If an amendment shall be proposed to any resolution under
consideration but shall in good faith be ruled out of order by the
Chairman of the meeting the proceedings on the substantive resolution
shall not be invalidated by any error in such ruling. In the case of a
resolution duly proposed as a special resolution no amendment thereto
(other than a mere clerical amendment to correct a patent error) may
in any event be considered or voted upon.
63. All questions submitted to a meeting shall be decided by a
majority of votes except where a greater majority is required by the
Articles or by the Ordinance or by any agreement in writing between
the Members. In the event of an equality of votes the Chairman shall
not have a casting vote.
64. A poll demanded on the election of a chairman or on a question of
adjournment shall be taken forthwith at the meeting and without
adjournment. A poll demanded on any other question shall be taken at
such time (being not later than 30 days after the date of the demand)
and place as the chairman of the meeting directs and the result of the
poll shall be deemed to be the resolution of the meeting at which the
poll was demanded. The demand for a poll may be withdrawn with the
consent of the chairman at any time before the close of the meeting or
the taking of the poll, whichever is the earlier.
65. (A) Subject to the provisions of the Ordinance, a resolution
in writing signed by all Members for the time being entitled
to receive notice of and attend and vote at general meetings
(or being corporations, by a Director thereof or by their
duly authorised representative) shall be treated as a
resolution duly passed at a general meeting of the Company
duly convened and held, and, where relevant, as a special
resolution so passed. Any such resolution may consist of
several documents in the like form, each signed by one or
more persons.
(B) Subject to the provisions of the Ordinance, all general
meetings may be held by means of video conference or by
other lawful electronic means and in such manner as may be
agreed by the Company in general meeting. All the provisions
in these Articles as to general meetings shall, mutatis
mutandis, be applicable.
(C) (1) Where the Company has only one Member and that
Member takes any decision that may be taken by the
Company in general meeting and that has effect as if
agreed by the Company in general meeting, he shall
(unless that decision is taken by way of a written
resolution agreed in accordance with section 116B of
the Ordinance) provide the Company with a written
record of that decision within 7 days after the
decision is made.
(2) Where the sole Member provides the Company with a
written record of a decision in accordance with
Article 65(C)(1), that record shall be sufficient
evidence of the decision having been taken by the
sole Member.
35
(3) The Company shall cause a record of all written
records provided to the Company in accordance with
this Article to be entered into a book kept for that
purpose in the same way as minutes of proceedings of
a general meeting of the Company.
Votes of Members
66. Subject to the rights or restrictions for the time being attached
to any class or classes of shares, on a show of hands every Member
present in person or by proxy or representative shall have one vote,
and on a poll every Member present in person or by proxy or
representative shall have one vote for each share of which he is the
holder and which is paid up as to all amounts due on such share. A
person entitled to cast more than one vote upon a poll need not use
all his votes or cast all the votes he uses in the same way.
67. Any person entitled under Article 40 to be registered as a Member
may vote at any general meeting in respect thereof in the same manner
as if he were the registered holder of such shares provided that at
least 48 hours before the time of the holding of the meeting or
adjourned meeting (as the case may be) at which he proposes to vote,
he shall satisfy the Directors of his right to be registered as the
holder of such shares or the Directors shall have previously admitted
his right to vote at such meeting in respect thereof.
68. In the case of joint holders the vote of the senior who tenders a
vote, whether in person or by proxy or by representative, shall be
accepted to the exclusion of the votes of the other joint holders; and
for this purpose seniority shall be determined by the order in which
the names stand in the Register. Several executors or administrators
of a deceased Member in whose name any share stands shall for the
purposes of this Article be deemed joint holders thereof.
69. If (a) any objection shall be raised to the qualification of any
voter or (b) any votes have been counted which ought not to have been
counted or which might have been rejected or (c) any votes are not
counted which ought to have been counted, the objection or error shall
not vitiate the decision of the meeting or adjourned meeting on any
resolution unless the same is raised or pointed out at the meeting or,
as the case may be, the adjourned meeting at which the vote objected
to is given or tendered or at which the error occurs. Any objection or
error shall be referred to the chairman of the meeting and shall only
vitiate the decision of the meeting on any resolution if the chairman
decides that the same may have affected the decision of the meeting.
The decision of the chairman on such matters shall be final and
conclusive.
70. Any Member entitled to attend and vote at a meeting of the Company
shall be entitled to appoint another person as his proxy to attend and
vote instead of him. On a poll votes may be given either personally or
by proxy. A proxy need not be a Member of the Company. A Member may
appoint more than one proxy to attend on the same occasion.
71. The instrument appointing a proxy shall be in writing under the
hand of the appointor or of his attorney duly authorised in writing,
or, if the appointor is a corporation, either under seal, or under the
36
hand of an officer or attorney duly authorised. The signature on such
instrument need not be witnessed.
72. The instrument appointing a proxy and the power of attorney or
other authority, if any, under which it is signed or a notarially
certified copy of that power or authority shall be deposited:
(a) not less than 48 hours before the meeting at the Office
or at the place or one of such places (if any) as maybe
specified for the purpose in or by way of note to the notice
convening the meeting or in any notice of any adjourned
meeting or, in either case, in any document sent therewith
or in the instrument of proxy issued by the Company; or
(b) immediately before the commencement of the meeting or
adjourned meeting or poll to which the proxy relates (as the
case may be) at which the person named in the instrument
proposes to vote at the place at which the meeting or
adjourned meeting is convened and in default the instrument
of proxy shall not be treated as valid. Delivery of an
instrument appointing a proxy shall not preclude a Member
from attending and voting in person at the meeting or poll
concerned.
73. No instrument appointing a proxy shall be valid after the
expiration of 12 months from the date of its execution unless it
states that it is valid, for all meetings whatsoever until revoked
with the exception that any instrument may be used at any adjournment
of the meeting for which it was originally intended.
74. The instrument appointing a proxy to vote at a general meeting
shall be deemed to confer authority to demand or join in demanding a
poll and to vote on any amendment of a resolution put to the meeting
for which it is given as the proxy thinks fit.
75. A vote given in accordance with the terms of an instrument of
proxy shall be valid notwithstanding the previous death of the
principal or the revocation of the proxy or transfer of the share in
respect of which the proxy is given provided that no intimation in
writing of the death, revocation or transfer has been received at the
Office or such other place as was specified for the deposit of proxies
or by the chairman of the meeting before the vote is given.
76. An instrument appointing a proxy may be in any usual or common
form or in any other form which the Directors may approve and may be
expressed to be valid for a particular meeting or generally until
revoked.
77. Any corporation which is a Member may, by resolution of its
directors or other governing body, authorise such person as it thinks
fit to act as its representative at any meeting or of any class of
Members, and the person so authorised shall be entitled to exercise
the same powers on behalf of the corporation which he represents as
that corporation could exercise if it were an individual Member.
Directors
78. Unless otherwise determined by the Company in general meeting, the
number of Directors shall not be less than the minimum required by the
Ordinance nor more than six.
37
The first Directors shall be determined in writing by the subscriber
to the Memorandum of Association. A Director shall not be required to
hold any shares in the Company by way of qualification.
79. (A) A Member entitled to appoint a person as a Director may
at any time and from time to time by notice in writing
signed by such Member delivered to the Office appoint and/or
remove or substitute such person as a Director. Any such
notice may be signed on behalf of a corporate Member by a
director thereof or by its duly authorised representative.
Any such notice may consist of several documents in the like
form, each signed by one or more persons. At such times as a
Member owns (i) at least 10% but less than 20% of the total
issued shares, such Member shall be entitled to appoint and
at any time remove or substitute one Director; (ii) at least
20% but not more than 40% of the total issued shares, such
Member shall be entitled to appoint and at any time remove
or substitute two Directors; (iii) more than 40% but less
than 60% of the total issued shares, such Member shall be
entitled to appoint and at any time remove or substitute
three Directors; (iv) at least 60% but not more than 80% of
the total issued shares, such Member shall be entitled to
appoint and at any time remove or substitute four Directors;
(v) more than 80% but not more than 90% of the total issued
shares, such Member shall be entitled to appoint and at any
time remove or substitute five Directors; and (vi) more than
90% of the total issued shares, such Member shall be
entitled to appoint and at any time remove or substitute six
Directors.
(B) Subject to the provisions of paragraph (A) above, the
Company in general meeting may by ordinary resolution
appoint any person to be a Director for such term as may be
resolved or remove any existing Director. Special notice is
required of a resolution to remove a Director or to appoint
somebody in place of a Director so removed at the meeting at
which he is removed in accordance with the Ordinance.
(C) Subject to the provisions of paragraph (A) above, the
Directors may appoint any person to be a Director as an
additional Director or to fill a casual vacancy provided
that any person so appointed shall hold office only until
the conclusion of the next following annual general meeting
and shall then be eligible for re-election.
(D) Any appointment of a Director pursuant to this Article
shall be ineffective if such appointment would have the
result that the number of Directors exceeds the number fixed
in accordance with Article 78.
80. The Directors shall be entitled to receive by way of remuneration
for their services such sum as shall from time to time be determined
by all the Members, such sum (unless otherwise unanimously directed by
the Members) to be divided amongst the Directors in such proportions
and in such manner as the Directors may agree or, failing agreement,
equally, except that if any Director holding office for less than the
whole of the relevant period in respect of which the remuneration is
paid shall only rank in such division in proportion to the time during
such period for which he has held office.
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81. Any Director who holds any executive office or who serves on any
committee, or who otherwise performs services which in the opinion of
the Directors are outside the scope of the ordinary duties of a
Director, may be paid such extra remuneration by way of salary,
commission or otherwise as the Directors may determine.
82. The Directors may repay to any Director all such reasonable
expenses as he may incur in attending and returning from meetings of
the Directors or of any committee of the Directors or general meetings
or otherwise in or about the business of the Company.
83. The office of a Director shall be vacated if the Director:
(a) becomes bankrupt or has a receiving order made against
him or suspends payment or makes any arrangement or
composition with his creditors generally;
(b) becomes a lunatic or of unsound mind or a patient for
any purpose of any statute relating to mental health and the
Directors resolve that his office be vacated;
(c) (not being a Director appointed to an office in the
management or business of the Company under Article 88(A)
whose contract precludes resignation) resigns his office by
notice in writing to the Company;
(d) is convicted of an indictable offence;
(e) has his office vacated or becomes prohibited from being
a Director under any of the provisions of the Ordinance or
any order made under the Ordinance;
(f) absents himself from the meetings of the Directors
during a continuous period of 6 months, without special
leave for absence from the Directors and his alternate
Director (if any) shall not during such period have attended
in his stead and the Directors pass a resolution that his
office be vacated by reason of such absence; or
(g) shall be removed from office by a Member or the Members
in accordance with Article 79(A) or (B).
84. The Company shall keep a register in which there shall be entered
the particulars required by the Ordinance in respect of the Directors,
the Secretary and reserve Director, and shall from time to time notify
the Registrar of Companies of any change that takes place in such
particulars as required by the Ordinance.
Powers and Duties of Directors
85. The business of the Company shall be managed by the Directors who,
without limiting the generality of the foregoing, may pay all expenses
incurred in setting up and registering the Company and may exercise
all such powers of the Company as are not required, by the Ordinance
or by the Articles, to be exercised by the Company in general meeting
subject, nevertheless, to such regulations as may be prescribed by the
Company in general meeting being not inconsistent with any of the
Articles or the provisions of the Ordinance; but no regulation made by
the Company in general meeting shall invalidate any prior act of the
Directors which would have been valid if that regulation had not been
made.
39
The general powers given by this Article shall not be limited or
restricted by any special authority or power given to the Directors by
any other Article. A meeting of the Directors at which a quorum is
present may exercise all powers exercisable by the Directors.
86. The Directors may establish and maintain or procure the
establishment and maintenance of any contributory or non-contributory
pension or superannuation funds or death or disability benefits for
the benefit of, or give or procure the giving of donations,
gratuities, pensions, allowances or emoluments to, any persons who are
or were at any time in the employment or service of the Company or of
any company which is a subsidiary of the Company or is allied or
associated with the Company or with any such subsidiary company or who
are or were at any time Directors or officers of the Company or of any
such other company as aforesaid and holding or who have held any
salaried employment or office in the Company or such other company and
the wives, widows, families and dependants of any such persons. The
Directors may also establish and subsidise or subscribe to any
institutions, associations, clubs or funds calculated to be for the
benefit of or to advance the interests and well-being of the Company
or of any such other company as aforesaid or of any such persons as
aforesaid and may make payments for or towards the insurance of any
such persons as aforesaid and subscribe or guarantee money for
charitable or benevolent objects or for any exhibition or for any
public, general or useful object. The Directors may do all or any of
the matters aforesaid, either alone or in conjunction with any such
other company as aforesaid. Any Director holding any such employment
or office shall be entitled to participate in and retain for his own
benefit any such donation, gratuity, pension, allowance or emolument.
87. The Directors may from time to time and at any time by power of
attorney or otherwise appoint any company, firm or person or any
fluctuating body of persons, whether nominated directly by the
Directors, to be the attorney or attorneys of the Company for such
purposes and with such powers, authorities and discretions (not
exceeding those vested in or exercisable by the Directors under the
Articles) and for such period and subject to such conditions as they
may think fit, and any such power of attorney may contain such
provisions for the protection and convenience of persons dealing with
any such attorney as the Directors may think fit, and may also
authorise any such attorney to sub-delegate all or any of the powers,
authorities and discretions vested in him.
88. (A) The Directors may from time to time appoint one or more
of their body to the office of managing director or joint
managing director on such terms and for such period as they
may determine and, without prejudice to the terms of any
contract entered into in any particular case, may at any
time revoke any such appointment. Such appointment shall
automatically determine if the holder ceases to be a
Director but without prejudice to any claim for damages for
breach of any contract of service between him and the
Company.
(B) The Directors may entrust to and confer upon a managing
director or joint managing director any of the powers
exercisable by them as Directors upon such terms and
conditions and with such restrictions as they think fit, and
either collaterally with or to the exclusion of their own
powers and may from time to time revoke, withdraw, alter or
vary all or any of such powers.
40
The managing director or joint managing directors shall
receive such remuneration (either by way of salary,
commission, participation in profits, or otherwise
howsoever) as the Directors may determine.
89. The Directors shall cause minutes to be duly entered in books
provided for the purpose:
(a) of all appointments of officers made by the Directors;
(b) of the names of the Directors present at each meeting of
the Directors and of any committee of Directors;
(c) of all declarations made or notices given by any
Director (either generally or specially) of his interest in
any contract or proposed contract or of his holding of any
office or property whereby any conflict of duty or interest
may arise; and
(d) of all resolutions, written records and proceedings of
general meetings of the Company and of meetings of the
Directors and any committee of Directors;
and any such minutes of any general meeting of the Company or any
meeting of the Directors or of any committee of Directors shall be
signed by the chairman of such meeting or by the chairman of the next
succeeding meeting and if so signed shall be receivable as prima facie
evidence of the matters stated therein.
Borrowing Powers
----------------
90. The Directors may exercise all powers of the Company to borrow
money, to give guarantees and to mortgage or charge the undertaking,
property and uncalled capital of the Company and to issue debentures
and other securities, whether outright or as collateral security for
any debt, liability or obligation of the Company or of any third
party.
Directors' Interests
--------------------
91. (A) A Director may be or become a director or other officer
of, or otherwise interested in, any company promoted by the
Company or in which the Company may be interested as vendor,
shareholder or otherwise and, subject to the Ordinance, no
such Director shall be accountable to the Company for any
remuneration or benefits received by him as a director or
officer of, or from his interest in, such other company
unless the Company otherwise directs. The Directors may
exercise the voting powers conferred by the shares in any
other company held or owned by the Company or exercisable by
them as directors of such other company in such manner in
all respects as they think fit (including the exercise
thereof in favour of any resolution appointing themselves or
any of them as directors or other officers of such company)
and any Director may vote in favour of the exercise of such
voting rights in the manner aforesaid notwithstanding that
he may be, or about to be, appointed a director or other
officer of such a company and that as such he is or may
become interested in the exercise of such voting rights in
the manner aforesaid.
41
(B) A Director may hold other office or place of profit
under the Company (other than the office of auditor) in
conjunction with his office of Director for such period and
on such terms as to remuneration (whether by way of salary,
commission, participation in profits or otherwise) as the
Directors may determine and no Director or intending
Director shall be disqualified by his office from
contracting with the Company either with regard to his
tenure of any such office or place of profit or as vendor,
purchaser or otherwise nor shall any such contract or any
contract or arrangement entered into by or on behalf of the
Company in which any Director is in any way interested
(whether or not such contract or arrangement is with any
person, company or partnership of or in which any Director
shall be a member) be liable to be avoided on that account
nor shall any Director so contracting or being so interested
be liable to account to the Company for any profit realised
by any such contract or arrangement by reason of such
Director holding that office or of the fiduciary
relationship thereby established provided that such Director
shall forthwith disclose the nature of his interest in any
contract or arrangement in which he is interested as
required by and subject to the provisions of the Ordinance
and the Articles. A Director may vote in respect of any
resolution concerning his own appointment as the holder of
any office or place of profit with the Company (including
the arrangement or variation of the terms thereof or the
termination thereof).
(C) A Director who is in any way, whether directly or
indirectly, materially interested in a contract, arrangement
or transaction or proposed contract, arrangement or
transaction with the Company and which is of significance in
relation to the Company's business shall declare the nature
of his interest at the earliest meeting of the Directors at
which it is practicable for him to do so, in accordance with
the Ordinance. A general notice to the Directors by a
Director stating that, by reason of facts specified in the
notice, he is to be regarded as interested in contracts,
arrangements or transactions or proposed contracts,
arrangements or transactions of any description which may
subsequently be made or contemplated by the Company shall be
deemed for the purposes of this Article to be a sufficient
declaration of his interest, so far as attributable to those
facts, in relation to any contract, arrangement or
transaction or proposed contract, arrangement or transaction
of that description which may subsequently be made or
contemplated by the Company, but no such general notice
shall have effect in relation to any contract, arrangement
or transaction or proposed contract, arrangement or
transaction unless it is given before the date on which the
question of entering into the same is first taken into
consideration on behalf of the Company.
(D) Provided such disclosure is made as aforesaid, a
Director shall be entitled to vote in respect of any
contract or arrangement in which he is interested and to be
counted in the quorum present at the meeting at which such
contract or arrangement is considered.
(E) If any question shall arise at any meeting as to the
materiality of a Director's interest or the significance of
a contract, arrangement or transaction or proposed contract,
arrangement or transaction or as to the entitlement of any
Director to vote or form part of a quorum and such question
is not resolved by his voluntarily agreeing to abstain from
voting, such question shall be referred to the chairman of
42
the meeting and his ruling in relation to any Director
(other than himself) shall be final and conclusive except in
a case where the nature or extent of the interests of the
Director concerned as known to such Director have not been
fairly disclosed.
(F) The Company may by Ordinary Resolution suspend or relax
the provisions of this Article to any extent or ratify any
transaction not duly authorised by reason of a contravention
of this Article.
(G) Any Director may act by himself or his firm in a
professional capacity for the Company, and he or his firm
shall be entitled to remuneration for professional services
as if he were not a Director provided that nothing herein
contained shall authorise a Director or his firm to act as
auditor to the Company.
(H) (1) Subject to the provisions of Article 91(H)(2), in
case the Company has only one Member and the Company
enters into a contract with that Member and that Member
is also a Director of the Company, unless the contract
is in writing, the terms of the contract shall be set
out in a written memorandum within 7 days after the
contract is made and the memorandum shall be kept at
the same place where the books containing the minutes
of the meetings of the Directors are kept.
(2) Article 91(H)(1) does not apply to contracts entered
into in the ordinary course of the Company's business.
Proceedings of Directors
92. The Directors may meet together for the dispatch of business,
adjourn, and otherwise regulate their meetings as they think fit. At
any time any Director may, and the Secretary on requisition of any
Director shall, summon a meeting of Directors. Any Director may waive
notice of any meeting and any such waiver may be given prospectively
or retrospectively. Subject to Article 93(A) and Article 102,
questions arising at any meeting shall be decided by resolution passed
by a simple majority of votes and in the event, of an equality of
votes the Chairman shall not have a second or casting vote.
93. (A) A resolution in writing signed by all the Directors for
the time being shall be as valid and effectual as if it had
been passed at a meeting of the Directors duly convened and
held. Any such resolution may consist of several documents
in like form each signed by one or more of the Directors.
(B) (1) In case the Company has only one Director and that
Director takes any decision that may be taken in a
meeting of the Directors and that has effect as if
agreed in a meeting of the Directors, he shall (unless
that decision is taken by way of a resolution in
writing) provide the Company with a written record of
that decision within 7 days after the decision is made
in accordance with the Ordinance provided that failure
by the Director to provide the written record shall not
affect the validity of any decision concerned.
43
(2) Where the Director provides the Company with a written
record of a decision, that record shall be sufficient
evidence of the decision having been taken by the
Director.
(3) The Company shall cause a record of all written records
provided to the Company to be entered into a book kept
for that purpose in the same way as minutes of
proceedings of a meeting of the Directors.
94. Meetings of the Directors may be held by means of conference
telephone, video conference or by such lawful electronic means and in
such manner as may be agreed by the Directors. All the provisions in
these Articles as to Directors' meetings shall, mutatis mutandis, be
applicable.
95. No meeting of the Directors may proceed to business nor transact
any business unless a quorum is present at the start and throughout
such meeting. The quorum of a Directors' meeting shall be one Director
appointed by BRC and two Directors appointed by Geron, present in
person or represented by an alternate. In the event that a quorum of
the Directors is not so present at the start of and throughout a duly
convened meeting of Directors, that meeting shall be adjourned to the
same time and place on the same day in the next week or as otherwise
agreed by a simple majority of the Directors and a quorum at such
adjourned meeting shall consist of any three Directors present in
person or represented by an alternate. Any Director who ceases to be a
Director at a Directors' meeting may continue to be present and to act
as a Director and be counted in the quorum until the termination of
the Directors' meeting if no other Director objects and if otherwise a
quorum of Directors would not be present.
96. The continuing Directors may act notwithstanding any vacancy in
their body, but, if and so long as their number is reduced below the
number fixed by or pursuant to the Articles as the necessary quorum of
Directors, the continuing Directors may act for the purpose of
increasing the number of Directors to that number, or of summoning a
general meeting of the Company, but for no other purpose.
97. The Chairman shall at all times be a Director appointed by the
Member holding more than 50% of the total issued shares or if no
Member holds more than 50% of the total issued Shares, then determined
by ordinary resolution of the Members. In the case of an equality of
votes at any meeting of the Board or of the Members, the Chairman
shall not be entitled to a second or casting vote. If at any meeting
the Chairman is not present within 10 minutes after the time appointed
for holding the same, the Directors present may choose one of their
number to be chairman of the meeting.
98. The Directors may delegate any of their powers to committees
consisting of such member or members of their body as they think fit;
any committee so formed shall in the exercise of the powers so
delegated conform to any regulations that may be imposed on it by the
Directors.
99. A committee may elect a chairman of its meetings; if no such
chairman is elected, or if at any meeting the chairman is not present
within 10 minutes after the time appointed for holding the same, the
members present may choose one of their number to be chairman of the
meeting.
44
100. (A) All acts done by any such committee in conformity with
such regulations and in fulfilment of the purposes for which
it is appointed, but not otherwise, shall have the like
force and effect as if done by the Directors and the
Directors shall have power, with the consent of the Company
in general meeting, to remunerate the members of any special
committee and charge such remuneration to the current
expenses of the Company.
(B) The meetings and proceedings of any such committee
consisting of two or more members shall be governed by the
provisions herein contained for regulating the meetings and
proceedings of the Directors including Articles 92 to 94 so
far as the same are applicable thereto and are not replaced
by any regulations imposed by the Directors pursuant to
Article 98.
101. All acts bona fide done by any meeting of the Directors or of a
committee of Directors or by any person acting as a Director shall,
notwithstanding that it be afterwards discovered that there was some
defect in the appointment of any such Director or person acting as
aforesaid or that they or any of them were or was disqualified, be as
valid as if every such person had been duly appointed and was
qualified to be a Director or member of such committee.
Prior Approval Required for Certain Actions of Directors and Members
102. (A) Subject to any agreement in writing between the Members,
the Company and/or the Directors shall not, without the
prior written approval of each of the Members:
(1) repurchase any of its own shares or effect any
reduction of share capital or enter into any scheme of
arrangement in respect of its share capital;
(2) permit the registration of any person as a shareholder
whether by way of subscription or transfer if such
subscription or transfer is restricted by or not in
compliance with any agreement in writing between the
Members;
(3) vary any of the rights attaching to any Shares;
(4) create or, where appropriate, issue any fixed or
floating charge, debenture, lien (other than a lien
arising by operation of law or in the ordinary course
of business) or other mortgage, encumbrance or security
over the whole or any part of the undertaking,
business, property or assets (tangible or intangible)
of the Company, except for the purpose of securing the
indebtedness of the Company for sums borrowed in the
ordinary and proper course of the business of the
Company;
(5) give any guarantee, indemnity or security to secure the
liabilities or obligations of any person (other than
the Company);
(6) make any material change in the nature of the business
of the Company as approved by the Members;
45
(7) enter into, vary or terminate any of the agreements
between the Company and any of the Members or any of
the Associated Companies of any Member relating to the
licensing of intellectual property rights or the
provision to the Company of services (other than in
accordance with its terms); or
(8) establish, cancel, or vary the terms of any share
option or share incentive scheme.
(B) The approval of a Member under Article 102(A) shall not
be required if that Member ceases to be the legal and
beneficial owner of at least 15% of the total issued share
capital from time to time.
(C) No provision of these Articles shall restrict any Member
from procuring (or require such Member to obtain the consent
of each of the other Members for) the winding up of the
Company in any manner permitted by law, provided that, for
the avoidance of doubt, the foregoing shall not restrict,
limit or reduce in any manner any of the obligations of any
Member that apply upon and following the winding up of the
Company under applicable law or any agreement between the
Members.
Alternate Directors
103. (A) A Director may at any time by notice in writing
delivered to the Office or at a meeting of the Directors
appoint any person (including another Director) to be an
alternate Director in his place. Any person so appointed
under this Article shall (except when absent from Hong Kong)
be entitled to receive notices of and to attend and vote at
meetings of the Directors and be counted towards a quorum
and generally at such meetings to perform all the functions
of his appointor as a Director and shall automatically
vacate his office on the expiration of the term for or the
happening of the event until which he is by the terms of his
appointment to hold office or which, were he a Director,
would cause him to vacate such office or if the appointor in
writing revokes the appointment or himself ceases for any
reason to hold office as a Director. An appointment of an
alternate Director under this Article shall not prejudice
the right of the appointor to receive notices of and to
attend and vote at meetings of the Directors and the powers
of the alternate Director shall automatically be suspended
during such time as the Director appointing him is himself
present in person at a meeting of the Directors.
(B) An alternate Director shall (subject to his giving to
the Company an address at which notices may be served on
him) be entitled (in addition to his appointor) to receive
and (in lieu of his appointor) to waive notices of meetings
of the Directors and of any committee of the Directors of
which his appointor is a member and shall be entitled to
attend and vote as a Director and be counted in the quorum
at any such meeting at which his appointor is not personally
present and generally at such meeting to perform all
functions of his appointor as a Director and for the
purposes of the proceedings at such meeting the provisions
of these Articles shall apply as if he (instead of his
appointor) were a Director.
46
If he shall be himself a Director and shall attend any such
meeting as an alternate for more than one Director, he shall
be counted in the quorum separately in respect of himself
(if a Director) and in respect of each Director for whom he
is an alternate (but so that nothing in this provision shall
enable a meeting to be constituted when only one person is
physically present) and his voting rights shall be
cumulative and he need not use all his votes or cast all the
votes he uses in the same way. His signature to any
resolution in writing of the Directors or of any such
committee and his attestation of the affixing of the Seal
shall be as effective as the signature and attestation of
his appointor. An alternate Director shall not (save as
aforesaid) have power to act as a Director nor shall he be
deemed to be a Director for the purposes of these Articles.
(C) An alternate Director shall be entitled to contract and
be interested in and benefit from contracts or arrangements
or transactions and to be repaid expenses and to be
indemnified to the same extent mutatis mutandis as if he
were a Director but he shall not be entitled to receive from
the Company in respect of his appointment as alternate
Director any remuneration except only such part (if any) of
the remuneration otherwise payable to his appointor as such
appointor may by notice in writing to the Company from time
to time direct.
(D) Section 153B(1) of the Ordinance shall not apply to an
alternate Director appointed pursuant to these Articles.
Reserve Director
----------------
104. (A) In case the Company has only one Member and that Member
is the sole Director of the Company, subject to the
Ordinance, the Company may in general meeting,
notwithstanding anything in these Articles, nominate a
person (other than a body corporate) who has attained the
age of 18 years as a reserve Director of the Company to act
in the place of the sole Director in the event of his death.
(B) The nomination of a person as a reserve Director of the
Company ceases to be valid if:
(a) before the death of the Director in respect of whom he
was nominated,
(i) he resigns as reserve Director; or
(ii) the Company in general meeting revokes the
nomination; or
(b) the Director in respect of whom he was nominated ceases
to be the sole Member and sole Director of the Company
for any reason other than the death of that Director.
(C) Subject to compliance with the conditions set out in
Article 104(D), in the event of the death of the Director in
respect of whom the reserve Director is nominated, the
reserve Director shall be deemed to be a Director of the
Company for all purposes until such time as:
(a) a person is appointed as a Director of the Company in
accordance with these Articles; or
47
(b) he resigns from his office of Director,
whichever is the earlier.
(D) The conditions referred to in Article 104(C) are:
(a) the nomination of the reserve Director has not ceased
to be valid under Article 104(B); and
(b) the reserve Director is not prohibited by law from
acting as a Director of the Company.
(E) The provisions in these Articles relating to the
resignation of Directors apply to a reserve Director
appointed under this Article.
Secretary
---------
105. (A) The Secretary shall be appointed by the Directors for
such term, at such remuneration and upon such conditions as
they may think fit and any Secretary so appointed may be
removed by them. Anything by the Ordinance or the Articles
required or authorised to be done by or to the Secretary,
may be done by or to any assistant or deputy secretary or if
there is no assistant or deputy secretary capable of acting,
by or to any officer of the Company authorised generally or
specially in that behalf by the Directors. In the event that
the Secretary appointed is a corporation, it may act and
sign by the hand of any one or more of its Directors or
officers duly authorised.
(B) The Secretary shall, if an individual, ordinarily reside
in Hong Kong and, if a body corporate, have its registered
office or a place of business in Hong Kong. In case the
Company has only one Director, the sole Director shall not
also be the Secretary of the Company and the Company shall
not have as its Secretary a body corporate the sole Director
of which is the sole Director of the Company.
(C) A provision of the Ordinance or the Articles requiring
or authorising a thing to be done by or to a Director and
the Secretary shall not be satisfied by its being done by or
to the same person acting both as Director and as, or in
place of, the Secretary.
Cheques
106. All cheques, promissory notes, drafts, bills of exchange, and
other negotiable or transferable instruments, and all receipts for
moneys paid to the Company, shall be signed, drawn, accepted, endorsed
or otherwise executed, as the case may be, in such manner as the
Directors shall from time to time by resolution determine.
The Seal
107. The Directors shall provide for safe custody of the Seal which
shall only be used with the authority of the Directors or of a
committee authorised by the Directors in that behalf; and every
48
instrument to which the Seal shall be affixed shall be signed by one
Director or the Secretary or by some other person appointed by the
Directors for the purpose.
108. The Company may exercise the powers conferred by the Ordinance
with regard to having an official seal for use outside Hong Kong and
such powers shall be vested in the Directors.
Dividends and Reserves
109. The Company in general meeting may declare dividends, but no
dividend shall exceed the amount recommended by the Directors.
110. The Directors may from time to time pay to the Members such
interim dividends as appear to the Directors to be justified by the
profits of the Company.
111. No dividend shall be paid otherwise than out of profits available
for the purpose and in accordance with the Ordinance.
112. The Company may upon the recommendation of the Directors by
ordinary resolution direct payment of a dividend in whole or in part
by the distribution of specific assets (and in particular of paid up
shares or debentures of any other company) and the Directors shall
give effect to such resolution, and where any difficulty arises in
regard to such distribution, the Directors may settle the same as they
think expedient and fix the value for distribution of such specific
assets or any part thereof and may determine that cash payments shall
be made to any Member upon the footing of the value so fixed in order
to adjust the rights of all parties and may vest any such specific
assets in trustees as may seem expedient to the Directors.
113. Subject to the rights of persons, if any, entitled to shares with
special rights as to dividends, all dividends shall be declared and
paid according to the amounts paid or credited as paid on the shares
in respect whereof the dividend is paid, but no amount paid on a share
in advance of calls shall be treated for the purposes of this Article
as paid on the share. All dividends shall be apportioned and paid
proportionately to the amounts paid or credited as paid on the shares
during any portion or portions of the period in respect of which the
dividend is paid; but if any share is issued on terms providing that
it shall rank for dividend as from a particular date such share shall
rank for dividend accordingly. The Directors may deduct from any
dividend payable to any Member all sums of money (if any) presently
payable by him to the Company on account of calls or otherwise in
relation to the shares of the Company.
114. The Directors may, before recommending any dividend, set aside
out of the profits of the Company such sums as they think proper as a
reserve or reserves which shall, at the discretion of the Directors,
be applicable for meeting contingencies, or for equalizing dividends,
or for any other purpose to which the profits of the Company may be
properly applied, and pending such application may, at the like
discretion, either be employed in the business of the Company or be
invested in such investments (other than shares of the Company) as the
Directors may from time to time think fit and the Directors may also
without placing the same to reserve carry forward any profits.
49
115. If several persons are registered as joint holders of any share,
any one of them may give an effectual receipt for any dividend or
other moneys payable on or in respect of the share.
116. Any dividend may be paid by cheque or warrant sent through the
post to the registered address of the Member or person entitled
thereto or in the case of joint holders to any one of such joint
holders at his registered address or to such person at such address as
the Member or person entitled or such joint holders (as the case may
be) may direct. Every such cheque or warrant shall be made payable to
the order of the person to whom it is sent or to the order of such
other person as the Member or person entitled or such joint holders
(as the case may be) may direct.
117. No dividend shall bear interest against the Company.
118. The Directors may, with the sanction of a resolution of the
Company, capitalise any sum standing to the credit of any of the
Company's reserve accounts (including share premium account and
capital redemption reserve fund) or any sum standing to the credit of
any profit and loss account or otherwise available for distribution by
appropriating such sum to the holders of shares in the proportions in
which such sum would have been divisible amongst them had the same
been a distribution of profits by way of dividend and applying such
sum on their behalf in or towards paying up any amount for the time
being unpaid on any shares held by them respectively or in paying up
in full unissued shares (or, subject to any special rights previously
conferred on any shares or class of shares for the time being issued,
unissued shares of any other class not being redeemable shares) for
allotment and distribution credited as fully paid up to and amongst
them in the proportion aforesaid, or partly in the one way and partly
in the other. Notwithstanding the foregoing, the share premium account
and a capital redemption reserve fund may, for the purposes of this
Article, only be applied in the paying up of unissued shares to be
allotted to Members as fully paid bonus shares. The Directors may do
all acts and things considered necessary or expedient to give effect
to any such capitalisation, with full power to the Directors to make
such provisions as they think fit for the case of shares becoming
distributable in fractions (including provisions whereby the benefit
of fractional entitlements accrue to the Company rather than to the
Members concerned). The Directors may authorise any person to enter on
behalf of all the Members interested into an agreement with the
Company providing for any such capitalisation and matters incidental
thereto and any agreement made under such authority shall be effective
and binding on all concerned.
119. The payment by the Directors of any unclaimed dividend or other
moneys payable on or in respect of a share into a separate account
shall not constitute the Company a trustee in respect thereof and any
dividend unclaimed after a period of 12 years from the date of
declaration of such dividend shall be forfeited and shall revert to
the Company.
Record Dates
120. Notwithstanding any other provision of these Articles the Company
or the Directors may fix any date as the record date for any dividend,
distribution, allotment or issue and such record date may be on or at
any time before or after any date on which such dividend,
distribution, allotment or issue is declared, paid or made.
50
Accounts
121. The Directors shall cause proper books of account to be kept with
respect to:
(a) all sums of money received and expended by the Company
and the matters in respect of which the receipt and
expenditure takes place;
(b) all sales and purchases of goods by the Company; and
(c) the assets and liabilities of the Company.
Proper books shall not be deemed to be kept if there are not kept such
books of account as are necessary to give a true and fair view of the
state of the Company's affairs and to explain its transactions.
122. The books of account shall be kept at the Office or, subject to
the Ordinance, at such other place or places as the Directors think
fit, and shall always be open to the inspection of any Director.
123. The Directors shall from time to time determine whether and to
what extent and at what times and places and under what conditions or
regulations the accounts and books of the Company or any of them shall
be open to the inspection of Members not being Directors, and no
Member (not being a Director) shall have any right of inspecting any
account or book or document of the Company except as conferred by
statute or authorised by the Directors or by the Company in general
meeting.
124. The Directors shall from time to time, in accordance with
sections 122, 124 and 129D of the Ordinance, cause to be prepared and
to be laid before the Company in general meeting such profit and loss
accounts, balance sheets, group accounts (if any) and reports as are
referred to in those sections.
125. Subject to section 129G of the Ordinance, a copy of every balance
sheet (including every document required by law to be annexed thereto)
which is to be laid before the Company in general meeting, together
with a copy of the Directors' report and a copy of the auditors'
report, shall not less than 21 days before the date of the meeting be
sent to every Member, and every holder of debentures of the Company
and to all persons other than Members or holders of debentures of the
Company, being persons entitled to receive notices of general meetings
of the Company provided that this Article shall not require a copy of
those documents to be sent to any person of whose address the Company
is not aware or to more than one of the joint holders of any shares or
debentures.
Branch Registers
126. The Company may exercise the powers conferred by the Ordinance
and may cause to be kept in any place outside Hong Kong a branch
register of Members. The Board of Directors may, subject to the
Ordinance, make or vary from time to time such provisions as it thinks
fit respecting the keeping of any such branch register and the
transfer of shares to, on or from any such branch register and shall
comply with the requirements of any local law.
51
Audit
127. Auditors shall be appointed and their duties regulated in
accordance with the Ordinance.
Notices
128. Any notice or other communication (except the appointment of a
Secretary) between the Company, any Director or Member may be given
personally or effected in writing or by any other means in the form of
an electronic record at the recipient's postal or electronic address.
A Member who (having no registered address in Hong Kong) has not
supplied to the Company an address, cable, telex, or electronic
address for the service of notices shall not be entitled to receive
notices from the Company.
129. Where a notice is sent:
(a) by post, service of the notice shall be deemed to be
effected by properly addressing, prepaying, and posting a
letter containing the notice, and to have been effected in
the case of a notice of a meeting sent to a Member at his
registered address in Hong Kong at the expiration of 48
hours after the letter containing the same is posted, and in
any other case at the time at which the letter would be
delivered in the ordinary course of post, provided always
that notices despatched to addresses outside Hong Kong shall
be sent by air mail; or
(b) by telex when despatched with confirmed answerback (in
the case of any notice made by telex); or
(c) by telegraph or cable, 24 hours after delivery to the
telegraph or cable company; or
(d) by facsimile or electronic means, on transmission
provided that the transmission records reveal that the
facsimile or electronic means has no error or break.
130. A notice may be given by the Company to the joint holders of a
share by giving the notice to the joint holder named first in the
Register in respect of the share.
131. A notice may be given by the Company to the persons entitled to a
share in consequence of the death or bankruptcy of a Member by sending
it to them, or by the title of representatives of the deceased, or
trustee of the bankrupt, or by any like description, by the means set
out in Articles 128 and 129, supplied for the purpose by the persons
claiming to be so entitled, or by giving the notice in any manner in
which the same might have been given if the death or bankruptcy had
not occurred.
132. Any person who, by operation of law, transfer or other means
whatsoever, becomes entitled to any share shall be bound by every
notice in respect of such share which, prior to his name and address
being entered in the Register, shall have been duly given to the
person from whom he derived his title to such share.
52
Destruction of Documents
133. The Company may destroy:
(a) any share certificate which has been cancelled at any time after
the expiry of one year from the date of such cancellation;
(b) any dividend mandate or any variation or cancellation thereof or
any notification of change of name or address at any time after
the expiry of 2 years from the date of such mandate, variation,
cancellation or notification was recorded by the Company;
(c) any instrument of transfer of shares which has been registered at
any time after the expiry of six years from the date of
registration; and
(d) any other document on the basis of which any entry in the
Register is made at any time after the expiry of 6 years from the
date an entry in the Register was first made in respect of it;
and it shall conclusively be presumed in favour of the Company
that every share certificate so destroyed was a valid certificate
duly and properly cancelled and that every instrument of transfer
so destroyed was a valid and effective instrument duly and
properly registered and that every other document destroyed
hereunder was a valid and effective document in accordance with
the recorded particulars thereof in the books or records of the
Company, provided always that:-
(i) the foregoing provisions of this Article shall apply only
to the destruction of a document in good faith and without
express notice to the Company that the preservation of such
document was relevant to a claim;
(ii) nothing contained in this Article shall be construed as
imposing upon the Company any liability in respect of the
destruction of any such document earlier than as aforesaid
or in any case where the conditions of proviso (a) above
are not fulfilled; and
(iii) references in this Article to the destruction of any
document include references to its disposal in any manner.
Winding Up
134. If the Company is wound up and the assets available for distribution
amongst the Members as such are insufficient to repay the whole of the
paid-up capital, such assets shall be distributed so that as nearly as may
be the losses shall be borne by the Members in proportion to the capital
paid up or which ought to have been paid up at the commencement of the
winding up on the shares held by them respectively. If in a winding up the
assets available for distribution among the Members are more than
sufficient to repay the whole of the capital paid up at the commencement of
the winding up, the excess shall be distributed amongst the Members in
proportion to the nominal capital at the commencement of the winding up
paid up by them respectively. This Article shall not add to or detract from
the rights of the holders of shares issued upon special terms and
conditions.
53
135. No fee or commission shall be paid by the Company to any Director or
liquidator upon any sale or realisation of the Company's undertaking or
assets or any part thereof except with the sanction of a general meeting
convened by notice specifying the fee or commission proposed to be paid.
136. If the Company shall be wound up (whether voluntarily or otherwise) the
liquidator may, with the sanction of a special resolution of the Company
and any other sanction required by the Ordinance, divide amongst the
Members in specie or kind the whole or any part of the assets of the
Company (whether they shall consist of property of the same kind or not)
and may, for such purpose, set such value as he deems fair upon any
property to be divided as aforesaid and may determine how such division
shall be carried out as between the Members or different classes of
Members. The liquidator may, with the like sanction, vest the whole or any
part of such assets in trustees upon such trusts for the benefit of the
contributories as the liquidator, with the like sanction, shall think fit,
but so that no Member shall be compelled to accept any shares or other
securities whereon there is any liability.
Indemnity
137. (A) Subject to the provisions of and so far as may be permitted by the
Ordinance, the Company may indemnify any officer of the Company
against all costs, charges, losses, expenses and liabilities which he
may sustain or incur in or about the execution and discharge of his
duties or in relation thereto including any liability incurred by him:
(a) in defending any proceedings, whether civil or criminal, in which
judgment is given in his favour or in which he is acquitted; or
(b) in connection with any application under section 358 of the
Ordinance in which relief is granted to him by the court.
(B) The Company may purchase and maintain for any officer of the Company:
(a) insurance against any liability to the Company, a related company
or any other party in respect of any negligence, default, breach
of duty or breach of trust (save for fraud) of which he may be
guilty in relation to the Company or a related company; and
(b) insurance against any liability incurred by him in defending any
proceedings, whether civil or criminal, taken against him for any
negligence, default, breach of duty or breach of trust (including
fraud) of which he may be guilty in relation to the Company or a
related company.
(C) Subject to section 165 of the Ordinance, if any Director and/or other
person shall become personally liable for the payment of any sum
primarily due from the Company, the Directors may execute or cause to
be executed any mortgage, charge, or security over or affecting the
whole or any part of the assets of the Company by way of indemnity to
secure the Director and/or person so becoming liable as aforesaid from
any loss in respect of such liability.
54
Schedule 4
----------
Written Resolution of Directors
-------------------------------
TA THERAPEUTICS LIMITED
-----------------------
RESOLUTIONS IN WRITING OF ALL THE DIRECTORS OF THE COMPANY PURSUANT TO THE
ARTICLES OF ASSOCIATION OF THE COMPANY
--------------------------------------------------------------------------------
1. Capital Structure
-----------------
Reference was made to the written resolution of all the members of the
Company passed on 15th June 2007 relating to changes in the capital
structure of the Company and the adoption of new Articles of Association of
the Company ("Written Resolution of Members").
Noted that immediately following the changes, the authorized share capital
of the Company was US$* divided into * unclassified ordinary shares, all of
US$1.00 each, and the issued share capital of the Company was US$* divided
into * unclassified ordinary shares of US$1.00 each, of which:
(a) Biotechnology Research Corporation Limited was the holder of *
unclassified ordinary shares of US$1.00 each of which:
(i) * ordinary shares numbered 1 to * were fully paid up; and
(ii) 1 ordinary share numbered * (the "BRC Partly Paid Share") was
paid up as to the nominal amount of US$1.00 and remained unpaid
as to the premium payable on such share in the sum of US$*;
(b) Geron Corporation was the holder of * ordinary shares of US$1.00 each
numbered * to * all of which were fully paid up.
2. Register of Members
-------------------
RESOLVED that the changes in the capital structure of the Company specified
in the Written Resolution of Members and the resulting re-designation of
the shares registered in the names of each of the members and the amounts
paid up and to be paid up on the Shares respectively held by each of the
members be recorded in the register of members with immediate effect.
3. Issue of Certificates
---------------------
RESOLVED that upon delivery up by a member of the shares certificates in
its name in respect of the shares held by it as previously designated as
class A Shares or class B shares (as the case may be) or an indemnity under
hand in respect thereof, the Company Secretary be and is authorised and
directed to issue to such member the following replacement certificates,
such certificates to be sealed under the common seal of the Company and
signed by any one director of the Company:
-------------
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
55
Certificate No. Name of Shareholder No. of Shares
--------------- ------------------- -------------
10 Biotechnology Research * fully paid
Corporation Limited ordinary shares
11 Biotechnology Research * fully paid
Corporation Limited ordinary shares
12 Biotechnology Research 1 partly paid
Corporation Limited ordinary share
(paid up as
to US$1)
13 Geron Corporation * fully paid
ordinary shares
Dated as of : 15th June 2007
/s/ ▇▇▇ ▇▇▇▇▇-▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------- --------------------------
▇▇▇ ▇▇▇▇▇-▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- -----------------------
▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------- ---------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
56
Schedule 5
----------
Second Written Resolution of Shareholders
-----------------------------------------
TA THERAPEUTICS LIMITED
-----------------------
RESOLUTION IN WRITING OF ALL THE SHAREHOLDERS OF THE COMPANY PURSUANT TO SECTION
116B OF THE COMPANIES ORDINANCE
--------------------------------------------------------------------------------
1. NOTED that:
(a) resolutions of members had previously been passed to
re-classify and re-designate all the existing shares in the
capital of the Company into unclassified ordinary shares of
US$1.00 each and to adopt new articles of association of the
Company; and
(b) a resolution of the directors of the Company had previously
been passed to approve amendments to the description of the
shares registered in the names of the members of the Company
in the register of members of the Company as unclassified
ordinary shares of US$1.00;
(c) pursuant to the resolutions of the directors of the Company
the amendments referred to in paragraph (b) above had been
made in the register of members and accordingly members
previously registered as the holders of class A shares of
US$1.00 each or class B shares of US$1.00 each were now
registered as the holders of unclassified ordinary shares of
US$1.00 each.
2. RESOLVED that the following resolution be passed as a Special Resolution:
Special Resolution - Reduction of Capital
-----------------------------------------
"That the capital of the Company be reduced by reducing the liability
in respect of the premium payable on the one partly paid share now
registered in the name of Biotechnology Research Corporation Limited
from US$* to US$*."
Dated as of 2007.
-----------------
------------------------------------ --------------------------------
For and on behalf of For and on behalf of
Biotechnology Research Corporation Limited Geron Corporation
-------------
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
57
Schedule 6
Form of Resignation of Director
To: The Directors
TA Therapeutics Limited
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Dear Sirs
I hereby resign as a director of TA Therapeutics Limited (the "Company") with
effect from the close of business on the date of this letter and hereby confirm
that I have no claim outstanding against the Company, whether for compensation
or otherwise.
Dated: 15th June 2007
SIGNED SEALED AND DELIVERED )
by ▇▇▇ ▇▇▇▇▇-▇▇ ) /s/ ▇▇▇ ▇▇▇▇▇-▇▇
in the presence of: ▇▇▇▇ ▇▇▇▇▇▇▇ )
Witness signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Witness name and
Address: ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇
Sai Kung, N.T.
58
Schedule 7
----------
Second Written Resolution of Directors
--------------------------------------
TA THERAPEUTICS LIMITED
-----------------------
RESOLUTIONS IN WRITING OF ALL THE DIRECTORS OF THE COMPANY PURSUANT TO THE
ARTICLES OF ASSOCIATION OF THE COMPANY
--------------------------------------------------------------------------------
1. Share Capital
-------------
Noted that pursuant to written resolutions of all the members and all
the directors, the register of members had been amended to record that
Biotechnology Research Corporation Limited ("BRC") was the holder of *
ordinary shares of US$1.00 each of which (i) * shares were fully paid
up; and (ii) 1 share (the "BRC Partly Paid Share") was paid up as to
the nominal amount of US$1.00 and remained unpaid as to the premium
payable thereon.
2. Transfer of Shares
------------------
NOTED that the Company had received duly executed bought and sold notes
and instruments of transfer in the form attached to this resolution in
respect of the transfer of * fully paid up ordinary shares of US$1.00
each by BRC to Geron Corporation ("Geron") (the "Sale Shares").
RESOLVED that:
(a) subject to the bought and sold notes and instruments of
transfer being duly stamped, the transfer of the Sale Shares
be and is approved and Geron be entered in the register of
members of the Company as the transferee of the Sale Shares;
and
(b) share certificate no. 10 in the name of Biotechnology Research
Corporation Limited be cancelled and a new share certificate
no. 14 be issued to Geron in respect of the Sale Shares upon
completion of the transfer, such certificate to be sealed
under the common seal of the Company and signed by any one
director of the Company.
3. Agreements
----------
There are annexed to these Resolutions the following documents:
(a) an Amended BRC Services Agreement to be made between BRC and
the Company by which BRC agrees to provide certain services to
the Company on such terms and conditions specified therein,
such agreement superceding the existing services agreement
between BRC and the Company; and
(b) an Amended and Restated Joint Venture Agreement to be made
between BRC, Geron and the Company providing for the manner in
which the Company is to be regulated;
-------------
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
59
(c) a Side Letter from the Company to BRC confirming that the
Company has not made a call in respect of the premium of US$*
on its partly paid share (formerly designated as a B Share).
RESOLVED that the above agreements and letter be approved and that any
director be authorized to sign the above agreements and letter and if
necessary to affix the common seal of the Company thereto.
4. Resignation and Appointment of Director
---------------------------------------
NOTED that ▇▇. ▇▇▇ ▇▇▇▇▇-▇▇ had submitted his resignation with effect
from the close of business on the date of this resolution.
After the above changes, the full slate of the Directors of the Company
would be as follows:
Name Representing
---- ------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Biotechnology Research Corporation Limited
▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Biotechnology Research Corporation Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Corporation
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Geron Corporation
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Geron Corporation
Dated as of : 15th June 2007
/s/ ▇▇▇ ▇▇▇▇▇-▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------- ----------------------------------
▇▇▇ ▇▇▇▇▇-▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- ----------------------------------
▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------- ----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
60
Schedule 8
----------
Amended and Restated Joint Venture Agreement
--------------------------------------------
See Exhibit 10.2.
61
Schedule 9
----------
Amended BRC Services Agreement
------------------------------
This Services Agreement (the "Agreement"), effective 15th June, 2007, is between
Biotechnology Research Corporation Limited, a Hong Kong corporation having a
place of business at The Hong Kong University of Science and Technology, Clear
Water Bay, Kowloon, Hong Kong ("BRC"), TA Therapeutics Limited, a Hong Kong
private limited company whose registered office is at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ("TAT") and Geron Corporation, a
company incorporated under the laws of the state of Delaware whose registered
office is at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
of America ("Geron").
RECITALS
WHEREAS, BRC and Geron have formed TAT to develop telomerase activation for
human therapeutic applications, pursuant to a Joint Venture Agreement dated 1
March, 2005 (the "Original Joint Venture Agreement") and BRC and TAT entered
into a Services Agreement dated 21 March 2005 ("Effective Date") for the
performance of certain services by BRC for TAT ("Original BRC Services
Agreement");
WHEREAS, BRC, Geron and TAT have entered into an Amended and Restated Joint
Venture Agreement dated 15th June, 2007, amending, restating and superceding the
Original Joint Venture Agreement (the "JV Agreement");
WHEREAS, under the JV Agreement BRC agrees to enter into this Agreement to
perform certain services for TAT and this Agreement supercedes the Original BRC
Services Agreement.
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
1. Definitions and Effect of this Agreement.
1.1. Definitions. Capitalized terms not defined in this Agreement shall have
the meanings set forth in the JV Agreement. In addition, in this
Agreement:
"Relevant Person" means any person engaged at any time in the provision
of Services, whether so engaged directly by BRC or indirectly by any
other person, and includes without limitation (i) BRC, HKUST and RDC,
(ii) any person who has Control of, is under the Control of or is under
common Control with BRC, HKUST and/or RDC and (iii) each of the
directors, officers, employees, consultants, third party contractors
and agents from time to time of any such person or persons referred to
in (i) or (ii) above;
"RDC" means HKUST R and D Corporation Limited, a private limited
company incorporated in Hong Kong;
62
"Past Services" means any Services (as defined in the Original BRC
Services Agreement) that have already been performed by BRC at the date
of this Agreement; and
"person" includes any individual, any form of body corporate,
unincorporated association, firm, partnership, joint venture,
consortium, association, organization or trust (in each case whether or
not having a separate legal personality).
1.2. Effect of this Agreement. This Agreement supercedes the Original
BRC Services Agreement, which shall be deemed to have terminated with
effect from the date of this Agreement, except that:
(a) the termination of the Original BRC Services Agreement
shall not affect the accrued rights and obligations of the parties to
that agreement;
(b) to the extent that any Addendum (as defined in the
Original BRC Services Agreement) has been issued under the Original BRC
Services Agreement for the provision of services which remain
outstanding and which the parties intend should be performed after the
date of this Agreement, that Addendum shall be deemed to be an Addendum
issued under this Agreement, the services to be provided by BRC as
referred to in that Addendum shall be deemed to be Services as defined
in and for the purposes of this Agreement, the performance of the
obligations of the parties (including payment) in respect of such
services under the Original BRC Services Agreement shall be deemed to
be performance of such obligations under this Agreement and, subject as
provided above, the provisions of Section 2, 3, 4 and 5 of this
Agreement shall be deemed to apply to that Addendum and to the
provision of those services despite the termination of the Original BRC
Services Agreement.
1.3. Enforcement by Geron. Geron shall have no right to enforce any
of the provisions of this Agreement unless and until the commencement
of a winding up of TAT, whereupon Geron shall be entitled to enforce
all provisions of this Agreement as are expressed to survive the
termination of this Agreement.
2. Services.
---------
2.1. Business Services. From time to time TAT and BRC may agree on
certain business, administrative, management or professional services
("Business Services") that BRC will perform or cause to be performed
for TAT. The scope, period of performance, expected cost, and other
terms and conditions for such Business Services, as agreed upon by TAT
and BRC, will be set forth in a Business Services Addendum to this
Agreement, signed by BRC and TAT. The parties contemplate that a
separate Business Services Addendum will typically be executed for each
distinct category of Business Services.
2.2. Scientific Services. From time to time TAT and BRC may agree on
certain scientific research and development work ("Scientific
Services") that BRC will perform or cause to be performed for TAT. The
scope, period of performance, expected cost, and other terms and
conditions for such Scientific Services, as agreed upon by TAT and BRC,
will be set forth in a Scientific Services Addendum to this Agreement,
signed by BRC and TAT. The parties contemplate that a separate
Scientific Services Addendum will typically be executed for each
distinct research and development project.
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2.3. Performance of Services. BRC will perform all Business Services
and Scientific Services (collectively, "Services") in accordance with
this Agreement and each applicable Business Services Addendum or
Scientific Services Addendum (each an "Addendum" and collectively
"Addenda"). BRC warrants that the Services shall be provided with
reasonable skill and care and the same degree of care and diligence
that BRC uses for similar activities on its own behalf and shall
conform to standards generally observed in the biotechnology industry
for similar services and shall be provided with reasonable skill and
care. BRC will use commercially reasonable efforts to provide the
Services in a timely manner.
2.4. Personnel. BRC will use qualified and experienced personnel
with the necessary skills and expertise to perform all Services to be
performed under this Agreement.
2.5. Third Party Contractors. BRC may engage qualified third-party
contractors, consultants or service providers (including but not
limited to HKUST and Affiliated Companies Controlled by HKUST) to
perform, or assist BRC in performing, the Services, but only if and to
the extent specifically authorized by the applicable Addendum. BRC
will remain responsible for the due performance of the Services.
3. Payment for Services.
---------------------
3.1. Direct Cost Reimbursement. In consideration for the Services,
TAT will pay BRC the Direct Cost (as defined in Section 3.2 below) of
the Services provided, up to the monetary limit specified in the
applicable Addendum. BRC shall not exceed, and TAT shall have no
obligation to pay any amounts in excess of any monetary limit stated in
the applicable Addendum unless approved in writing in advance by TAT.
3.2. Definition of Direct Costs. The "Direct Cost" of Services shall
mean the sum of the following:
(a) Salaries and wages of BRC's employees employed in the
performance of the Services. Labor charges will be based on
time sheets approved by the respective employee's supervisor
or such other method as is appropriate for the type of service
provided and customarily used by BRC;
(b) BRC's actual cost of employee benefits for such
employees (calculated on a pro rata basis by reference to the
actual time they are employed in the performance of the
Services);
(c) BRC's actual cost for third-party contractors,
consultants and service providers authorized pursuant to
Section 2.5;
(d) BRC's actual cost for supplies purchased for use in
the performance of the Services;
64
(e) A percentage of BRC's actual cost for common supplies,
calculated based on the allocation method used by BRC for such
supplies for government grants;
(f) BRC's actual cost for equipment purchased which is
substantially dedicated for use in performance of the Services
and specifically authorized in the applicable Addendum, and
for maintenance of such equipment;
(g) BRC's reasonable travel and related expenses incurred
in connection with the performance of the Services by
employees whose salaries and wages are chargeable under
subsection (a) above who have been reimbursed under BRC's
usual practice and in accordance with BRC's travel policy,
provided that the travel has been approved in advance by TAT
in the applicable Addendum or otherwise in writing;
(e) Other reasonable out-of-pocket expenses incurred by
BRC that are necessary for the proper performance of the
Services and which have been approved in advance by TAT in the
applicable Addendum or otherwise in writing.
3.3. Billing and Payment. BRC shall submit a monthly invoice to TAT for each
calendar month on or before the fifteenth (15th) Business Day of the
following calendar month. Each such invoice shall state separately for
each Addendum the Direct Cost of Services provided in such month under
such Addendum. TAT will pay BRC the amount due under each invoice
within thirty (30) calendar days after receipt of the invoice.
4. Limitations on Services.
------------------------
4.1. No Representation or Warranty. The parties acknowledge that
BRC is not in the business of providing the Services as set forth in
this Agreement, and is entering into this Agreement as an
accommodation to TAT in connection with the JV Agreement. EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN AN ADDENDUM, BRC does
not make any express or implied representations, warranties or
guarantees relating to the Services to be provided hereunder or the
quality or results of such services. EXCEPT AS EXPRESSLY PROVIDED IN
THIS AGREEMENT OR IN AN ADDENDUM, ALL SERVICES PROVIDED HEREUNDER
ARE PROVIDED TO NEWCO ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY
KIND. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN AN ADDENDUM,
BRC HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
4.2. Alternatives. If BRC reasonably believes it is unable to
provide any of the Services because of a failure to obtain necessary
consents, licences, sublicences or approvals or because of illegality
or another cause beyond BRC's control, BRC and TAT shall cooperate to
determine the best alternative approach. Until such alternative
approach is found or the problem is otherwise resolved to the
satisfaction of BRC and TAT, BRC shall use commercially reasonable
efforts to continue providing the Services. To the extent an
agreed-upon alternative approach requires payment above and beyond
that which is included in BRC's charge for the Services in question,
TAT shall be responsible for any such payment only if TAT agrees in
advance in writing, provided that if TAT does not agree to be
responsible for such payment, BRC will not be required to pursue
such alternative approach.
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5. Term and Termination.
5.1. Term. This Agreement shall terminate on the eighth (8th)
anniversary of the Effective Date, unless earlier terminated as
provided below.
5.2. Termination of Agreement. This Agreement and all Addenda shall
be terminated automatically, as provided in Clause 13.1.1 of the JV
Agreement, if TAT is placed in winding up. In addition, this Agreement
may be terminated as follows:
5.2.1. By TAT, upon ten (10) days written notice, if BRC is in
material breach of its obligations under this Agreement or any
Addendum and such breach, if capable of remedy, has not been
remedied to the reasonable satisfaction of TAT at the expiry of
60 days following receipt by BRC of a notice in writing from TAT
notifying BRC of such breach and reasonably indicating the steps
required to be taken to remedy the failure;
5.2.2. By TAT, upon ten (10) days written notice, if BRC ceases
to be a Shareholder of TAT;
5.2.3. By BRC, upon ten (10) days written notice, if TAT is in
material breach of its obligations under this Agreement or any
Addendum and such breach, if capable of remedy, has not been
remedied to the reasonable satisfaction of BRC at the expiry of
60 days following receipt by TAT of a notice in writing from BRC
notifying TAT of such breach and Default Notice reasonably
indicating the steps required to be taken to remedy the failure;
5.2.4. By BRC, upon sixty (60) days written notice, if BRC ceases
to be a Shareholder of TAT.
5.3. Termination of Addendum. Any Addendum may be terminated as
follows, unless such Addendum provides otherwise:
5.3.1. By TAT, upon thirty (30) days written notice, with or
without cause.
5.3.2. By TAT, upon ten (10) days written notice, if BRC is in
material breach of its obligations under such Addendum and such
breach, if capable of remedy, has not been remedied to the
reasonable satisfaction of TAT at the expiry of 60 days following
receipt by BRC of a notice in writing from TAT notifying BRC of
such breach and reasonably indicating the steps required to be
taken to remedy the failure;
5.3.3. By BRC, upon ten (10) days written notice, if TAT is in
material breach of its obligations under such Addendum and such
breach, if capable of remedy, has not been remedied to the
reasonable satisfaction of BRC at the expiry of 60 days following
receipt by TAT of a notice in writing from BRC notifying TAT of
such breach and reasonably indicating the steps required to be
taken to remedy the failure.
66
5.3.4. By BRC, upon sixty (60) days' written notice, if BRC
ceases to have available the personnel or resources required to
perform the Services under such Addendum, provided that this
section 5.3.4 will not apply with respect to personnel or
resources designated by BRC as being dedicated to the performance
of the Services.
5.4. Termination of Performance. Upon any termination of an Addendum,
BRC shall immediately cease performance of Services in respect of such
Addendum and TAT shall be liable only for Direct Costs in respect of
such Services up to the effective date of termination, and Direct Costs
to be incurred after the effective date of termination to the extent
that BRC is legally obligated to incur them and is unable to cancel the
obligation despite reasonable efforts.
5.5. Effect of Termination. Despite any other provision of this
Agreement (a) the termination of this Agreement shall not affect the
accrued rights and obligations of the parties; and (b) Sections 6, 7, 8
and 9 shall survive the termination of this Agreement and continue in
full force and effect.
6. Indemnification and Limitation of Liability.
--------------------------------------------
6.1. Indemnification. BRC shall indemnify, defend, and hold harmless
each of the other parties and their respective officers, directors,
employees and agents (each person or entity, an "Indemnified Person"),
from any liability, loss, claim, expense, proceeding, action and/or
damage incurred by the Indemnified Person by reason of any act
performed or omitted to be performed by BRC, its officers, directors,
employees and/or agents and/or any other Relevant Person in connection
with the Services and/or the Past Services, including reasonable
attorneys' fees and costs and any amounts expended in the settlement of
any such claims of liability, loss, or damage and which arises out of
or in relation to or by reason of:
(a) the negligence, recklessness or intentional misconduct of BRC,
its officers, directors, employees and/or agents and/or any
other Relevant Person in the provisions of the Services and/or
the Past Services; or
(b) any act or omission of BRC, its officers, directors, employees
and/or agents and/or any other Relevant Person outside the
prescribed or authorized scope of the Services and/or Past
Services as defined by the applicable Addendum (whether issued
under this Agreement or the Original BRC Services Agreement).
6.2. Limitation of Liability. IN NO EVENT WILL BRC BE LIABLE TO ANY
OTHER PARTY FOR INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT
LIMITATION, LOSS OF PROFITS.
7. Intellectual Property.
----------------------
7.1. Subject to the rights of Third Parties (other than Relevant
Persons) in Intellectual Property, TAT (or following the commencement
of a winding up of TAT, Geron) shall be vested with all right title
and interest in and shall own all Collaboration Inventions generated
by BRC and/or its employees and/or any Relevant Person in the course
of carrying out the Services and/or which has been generated by such
persons in the course of carrying out the Past Services.
67
7.2. In the case of Collaboration Inventions made by employees or
agents of BRC or any other Relevant Persons (alone or in collaboration
with others), BRC shall assign to TAT (or in respect of any assignment
made following the commencement of a winding up of TAT, to Geron) all
its right, title and interest in such Collaboration Inventions.
7.3. BRC shall ensure that its employees and agents and all Relevant
Persons shall, where necessary in order to vest all right, title and
interest in any Collaboration Inventions in TAT (or following the
commencement of a winding up of TAT, in Geron), agree to assign to TAT
(or following the commencement of a winding up of TAT, to Geron) (or
assign to BRC for assignment to TAT or Geron (as the case may be) under
Section 7.2) their entire interest in any Collaboration Inventions
generated by them in the course of carrying out the Services and/or the
Past Services.
7.4. BRC shall use all reasonable endeavours to procure its employees
and agents and all Relevant Persons to fully disclose and record all
Collaboration Inventions to enable TAT (or following the commencement
of a winding up of TAT, Geron) to fully collect, protect, exploit and
commercialise the Collaboration Inventions.
7.5. BRC shall procure that, where necessary, written and irrevocable
waivers of any such moral or other non-transferable rights in respect
of the Collaboration Inventions have been given by its employees and
agents and all Relevant Persons in favour of TAT (or if such waivers
are given following the commencement of a winding up of TAT, in favour
of Geron).
7.6. BRC shall do all things reasonably necessary, co-operate in good
faith and provide such assistance as may be necessary and do all things
as may be required to disclose, protect, maintain, enforce and/or
transfer or assign the Collaboration Inventions, and shall procure that
its employees and agents and all Relevant Persons shall co-operate in
the provision of such assistance including preparing and signing all
forms, applications, documents, agreements and deeds to give effect to
and complete the transactions, assignments, and licences contemplated
by this Section 7.
7.7. BRC shall, and shall procure that all its officers, directors,
employees and agents and each other Relevant Person shall, provide all
assistance reasonably required by TAT and/or Geron to contest any claim
by any person to any right, title or interest to or in any intellectual
property rights intended by the parties to the JV Agreement to be owned
by TAT (or following the commencement of a winding up of TAT, by
Geron).
7.8. The provisions of this Section 7 shall survive any termination of
this Agreement.
8. Confidentiality.
----------------
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8.1. Confidential Information. "Confidential Information" means all
non-public and/or proprietary information owned or possessed by the
disclosing party and specifically designated as such and includes any
and all Confidential Information disclosed by BRC or TAT to the
other of them at any time from the Effective Date. Confidential
Information includes, without limitation, any methods, techniques and
processes, and technical and scientific data, unpublished findings,
biological material, know-how, specifications, patent applications,
algorithms, programs, designs, drawings, and formulae, and
engineering, manufacturing, marketing, development, sales, research,
operations, financial and business plans and data disclosed by a party
to the other party hereunder. BRC and TAT shall ensure that written
confidential information is marked "confidential" or with a
comparable marking and that confidential information not disclosed
in writing is reduced to writing and marked as "confidential" or with a
comparable marking within thirty (30) days of disclosure, provided
that information (other than scientific know-how and scientific
techniques) exchanged by BRC and TAT hereunder or otherwise that
relates to the business or operations of TAT shall be treated as
confidential whether or not so marked.
8.2. Confidentiality Obligations. Except as expressly set forth in
this Agreement, during the term of this Agreement or a period of four
(4) years from receipt thereof, whichever is longer, each
recipient of Confidential Information agrees and undertakes to the
other parties that it will use such information only for purposes of
performing its obligations and/or exercising its rights under this
Agreement, and will not disclose such information except to its
employees and consultants and to other Relevant Persons to whom
disclosure is required in order for them to participate in the
performance of Services. Each of BRC and TAT will ensure that its
employees or consultants and any other Relevant Persons who
receive access to the other party's Confidential Information are and
remain at all times legally obligated to maintain the
confidentiality of such Confidential Information, and such party shall
be responsible for the compliance of its employees or consultants and,
in the case of BRC, all other Relevant Persons. Each party
represents to the other that the terms of this Section 8 do not
conflict with any of the representing party's obligations to any other
person or entity.
8.3. Exceptions to Confidentiality. The restrictions on use and
disclosure of Confidential Information shall not apply to information
to the extent any of the following is true:
(a) the information is now, or hereafter becomes, through
no act or failure to act on the part of the recipient
(or any Relevant Person to whom the information is
disclosed), generally known or available to the
public;
(b) the information is known by the recipient or is
already in the possession of the recipient before it
receives the information from the disclosing party;
(c) the information is furnished to the recipient by a
third party who did not acquire the information
directly or indirectly from the disclosing party
under an obligation of confidentiality to the
disclosing party or otherwise under circumstances in
which such third party did not have the legal right
to acquire and furnish to the recipient the
information in question;
(d) the information is independently developed by the
recipient without use or knowledge of the
Confidential Information;
69
(e) the information is required by law or by order of any
court or governmental authority to be disclosed by
the recipient. In the event of such compulsory
disclosure, however, the recipient shall use
reasonable efforts to give the disclosing party
sufficient advance written notice to enable it to
seek a protective order or other remedy to protect
such Confidential Information. The recipient shall
use reasonable efforts to disclose only the minimum
Confidential Information required to be disclosed,
whether or not a protective order or other remedy is
in place;
(f) the information is made available by the disclosing
party to a third party (not being a shareholder of
TAT or any of such shareholder's employees) without
similar restrictions; or
(g) the information (i) does not relate to the business
or operations of TAT or is scientific know-how or
scientific techniques and (ii) is not disclosed in
writing or reduced to writing and marked as
"confidential" or with other comparable marking
within thirty (30) days of disclosure.
8.4. Survival. The provisions of this Section 8 shall survive any termination of
this Agreement.
9. Publication.
------------
9.1. Publication. Except as otherwise specified in the applicable
Addendum, publication of results, records, or other information arising
out of or relating to Services and/or Past Services will be permitted
only with the prior written consent of TAT's Board (or TAT's Discovery
Research Committee) or following the commencement of a winding up of
TAT, of Geron. The party whose consent is required under this Clause
9.1 (the "Consenting Party") may withhold that consent if it believes
that such publication or disclosure may compromise or adversely
impact its product development efforts, competitive position, or
business. If BRC wishes to make such a publication or disclosure, it
will submit a draft manuscript or disclosure for review by the
Consenting Party at least forty-five (45) days prior to the date of
submission for publication or public disclosure. The Consenting
Party will, within thirty (30) days after it has received (or in the
case of TAT all members of its Board or the Joint Discovery Research
Committee have received) the draft, communicate to BRC in writing its
decision to:
(i) consent to the publication or disclosure as submitted without
changes; or
(ii) consent to the publication or disclosure provided that specified
information is deleted, or that publication or disclosure is delayed
for a period, not to exceed sixty (60) days, or such longer period as
the Consenting Party may notify BRC before the end of such sixty (60)
day period as is reasonably necessary to permit the Consenting Party to
file any desired patent applications, or both; or
(iii) withhold consent to the publication or disclosure.
Any publication arising out of or relating to this Agreement shall
recognise intellectual contributions by co-authorship and/or
acknowledgement, in accordance with applicable academic norms.
70
9.2. Survival. The provisions of this Section 9 shall survive any
termination of this Agreement.
10. Miscellaneous.
--------------
10.1. Independent Contractor. BRC and TAT agree that, in performing
its obligations under this Agreement, BRC shall be an independent
contractor, and that neither BRC nor any of its employees or agents or
any other Relevant Persons shall be deemed for any purpose to be an
employee or agent of TAT and BRC shall not hold itself out as such.
Nothing in this Agreement shall be deemed to give BRC or any other
person any right or power to bind TAT to any obligation.
10.2. Governing Law; Dispute Resolution. The validity, construction
and enforceability of this Agreement shall be governed by and construed
in accordance with the laws of Hong Kong without regard to choice of
law provisions. Any dispute arising out of this Agreement shall be
resolved as provided in Clause 33.2 of the JV Agreement.
10.3. Notice. Any notice required to be given by a party to any other
party may be made (i) by hand delivery by Federal Express or comparable
private courier service to the other party's address given herein or
such other address as may from time to time be notified for this
purpose or (ii) by facsimile transmission to a facsimile number as is
specified for such other party in the JV Agreement or otherwise as is
notified in writing by such other party for this purpose. Any properly
addressed notice served by hand shall be deemed to have been served on
delivery and any notice served by facsimile transmission shall be
deemed to have been served when received, as shown by a confirmed
transmission report.
10.4. Severability. If any provision in this Agreement shall be found
or be held to be invalid or unenforceable then the meaning of said
provision shall be construed, to the extent feasible, so as to render
the provision enforceable, and if no feasible interpretation would save
such provision, it shall be severed from the remainder of this
Agreement which shall remain in full force and effect unless the
severed provision is essential and material to the rights or benefits
received by any party. In such event, the parties shall use best
efforts to negotiate, in good faith, a substitute, valid and
enforceable provision or agreement which most nearly effects the
parties' intent in entering into this Agreement.
10.5. No Waiver. No waiver of any term or condition of this Agreement
shall be valid or binding on a party unless the same shall have been
set forth in a written document, specifically referring to this
Agreement and duly signed by the waiving party. The failure of a party
to enforce at any time any of the provisions of this Agreement, or the
failure to require at any time performance by the other party of any of
the provisions of this Agreement, shall in no way be construed to be a
present or future waiver of such provisions, nor in any way affect the
ability of a party to enforce each and every such provision thereafter.
10.6. Assignment. This Agreement may not be assigned without the
written consent of each of the parties to this Agreement. Any
assignment not in conformance with this Section 10.6 shall be null,
void and of no legal effect. This Agreement shall inure to the benefit
of, and shall be binding upon, the parties and their respective
permitted successors and assigns.
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10.7. Counterparts. This Agreement may be executed in any number of
counterparts, and each counterpart shall constitute an original
instrument, but all such separate counterparts shall constitute only
one and the same instrument.
10.8. Force Majeure. No party shall be liable for any delay in
performing any of its obligations under this Agreement to the extent
that such delay is directly caused by any occurrence which is beyond
the reasonable control of the party so delaying, including, without
limitation, delays arising out of acts of God, acts or orders of any
government agency or instrumentality thereof, acts of public enemy,
riots, embargoes, strikes, casualties or accidents, deliveries of
materials, transportation or shortage of cars, trucks, fuel, power,
labor or materials, interruption of or delay in transportation,
unavailability of, interruption of or delay in telecommunications, or
any other causes, circumstances or contingencies within or without the
United States of America which are beyond the reasonable control of
such party and such party shall be entitled (subject to giving the
other party full particulars of the circumstances in question and to
using its best endeavours to resume full performance without avoidable
delay) to a reasonable extension of time for the performance of
such obligations. Notwithstanding the occurrence of any force majeure
event, this Agreement shall continue in full force for the remainder of
its term and any renewals thereof.
10.9. Variation. No variation or amendment to this Agreement shall be
effective unless in writing signed by authorized representatives of
each of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Services Agreement as
of the day and year first above written.
72
TA THERAPEUTICS LIMITED BIOTECHNOLOGY RESEARCH
CORPORATION LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇ ▇▇▇▇
Title: Director Name: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Title: Director
GERON CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: SVP Business Development, Chief
Patent Counsel
73
IN WITNESS whereof this Agreement has been executed by the Parties and is
intended to be and is hereby delivered on the date appearing at the head hereof.
SIGNED by ▇▇▇ ▇▇▇▇ ▇▇▇▇ )
for and on behalf of )
BIOTECHNOLOGY ) /s/ ▇▇▇ ▇▇▇▇ ▇▇▇▇
RESEARCH CORPORATION )
LIMITED )
in the presence of: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ )
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SIGNED by ▇▇▇▇▇ ▇▇▇▇ )
for and on behalf of ) /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ CORPORATION )
in the presence of: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ )
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Solicitor, Hong Kong SAR
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ & Partners