EXHIBIT 10.1 JOINT VENTURE AGREEMENT

(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 230 Constitution Drive, Menlo Park, California 94025, United States of America ( “Geron” ).

(A)  

BRC and Geron wish to establish a joint venture company in Hong Kong (the “Company”), for the purposes of carrying on the Business (as defined below). The primary objective of the Company shall be to be commercially successful. The secondary objective of the Company shall be to promote and grow the biotechnology industry and drug development in Hong Kong.

(B)  

The details of the Company immediately before Completion (as defined below) are set out in Schedule 1.

(C)  

The Shareholders now wish to invest in and operate the Company as a joint venture for the purposes and on the terms set out below.

(D)  

Each of the Parties enters into this Agreement in consideration of each of the other Parties entering into this Agreement and accepting the terms, undertakings and covenants contained herein.

1.   

Definitions and Interpretation

1.1  

In this Agreement and the Recitals, where the context so admits, the following words and expressions shall have the following meanings:

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.

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  

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 the Shareholders and the Company include their 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  

A document expressed to be “ in the approved terms ” means a document the terms of which have been approved by or on behalf of the Shareholders and a copy of which has been signed for the purposes of identification by or on behalf of the Shareholders.

1.12  

In construing this Agreement:

1.12.1  

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

1.12.2  

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.   

Conditions

2.1  

This Agreement is conditional upon:

2.1.1  

the passing by the directors of BRC and the directors of Geron of a resolution approving this Agreement;

2.1.2  

all necessary approvals and consents to the execution of this Agreement and the performance of the transactions hereby contemplated being obtained;

2.1.3  

BRC entering into the BRC Services Agreement;

2.1.4  

HKUST and BRC entering into the BRC Licence Agreement;

2.1.5  

Geron entering into the Geron Licence Agreement and the Geron Services Agreement; and

2.1.6  

the Company having been duly incorporated with the details set out in Schedule 1.

2.2  

BRC and Geron shall use all reasonable endeavours to ensure that the conditions set out in Clause 2.1 shall be fulfilled by the date referred to in Clause 2.3.

2.3  

If the conditions set out in Clause 2.1 shall not have been fulfilled or waived in writing by BRC and Geron within 30 days after the Effective Date, this Agreement (other than Clauses 1, 17, 21, 25, 29, 30, 31 and 34) shall, subject to the liability of either Shareholder to the other in respect of any breaches of the terms hereof, including the obligations under Clause 2.2 antecedent thereto, be null and void and of no effect.

3.   

Subscription for Shares and Completion

3.1  

BRC and Geron shall make their respective capital contributions to the Company in accordance with the provisions of the Funding Schedule.

3.2  

Completion, subject to the satisfaction or waiver of the provisions of Clause 2, shall take place on the Completion Date at the time and place agreed by the Parties when all (but not some only) of the events described in Schedule 2 shall be performed.

3.3  

If, in any respect, any of the provisions of Schedule 2 are not complied with on the Completion Date by any of the Parties, the remaining Party may at its option defer Completion until 1 April 2005 (and so that the provisions of this Clause shall apply to Completion as so deferred). Unless in such circumstances the remaining Party so defers Completion, this Agreement shall terminate on the Completion Date, but without prejudice to any claim which any Party may have against any other Party for breach of contract.

4.   

The Business

4.1  

The Parties shall procure that the Business shall be the carrying on of the following activities: to conduct research, development and commercialisation of Intellectual Property and technology in the Field of Use, including without limitation the development and commercialisation of the Collaboration Products.

4.2  

The Business shall be conducted during Phase I and Phase II in accordance with the Phase I Work Plan and the Phase II Work Plan respectively. The first Operations Plan shall be prepared and presented to the Shareholders for approval before the commencement date of Phase I. After the end of Phase II, the Business shall be conducted in accordance with the business plan approved by the Shareholders from time to time. Each of the Parties shall use its respective reasonable endeavours, without being required to incur any financial obligation (other than as expressly set out in this Agreement), to promote the interests of the Company, to ensure that the Company conducts the Business with energy and efficiency and to facilitate the promotion of the Business. Each Shareholder hereby covenants with the other Shareholder that it shall at all times act in good faith towards the other in connection with this Agreement and in relation to the conduct of the Business and the interests of the Company, and further, shall act in what it reasonably believes to be the best interest of the Company and not act contrary to what it reasonably believes to be the interests of the Company or the Company’s conduct of the Business.

5.   

Directors

5.1  

The maximum number of Directors shall be six, unless otherwise agreed in writing by the Shareholders. For so long as BRC and Geron each own 50% of the total issued Shares, BRC shall be entitled to appoint and at any time remove or substitute three BRC Directors and Geron shall be entitled to appoint and at any

time remove or substitute three Geron Directors. At such times as a Shareholder owns (i) at least 10% but less than 25% of the total issued Shares, such Shareholder shall be entitled to appoint and at any time remove or substitute one Director; (ii) at least 25% but not more than 40% of the total issued Shares, such Shareholder 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 Shareholder shall be entitled to appoint and at any time remove or substitute three Directors; (iv) at least 60% but not more than 75% of the total issued Shares, such Shareholder shall be entitled to appoint and at any time remove or substitute four Directors; (v) more than 75% but not more than 90% of the total issued Shares, such Shareholder 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 Shareholder shall be entitled to appoint and at any time remove or substitute six Directors.

5.2  

A Shareholder may appoint or remove a Director by depositing written notice at the Company’s registered office and by sending a copy of the same to the other Shareholder.

5.3  

In the event that any Shareholder disposes of all its Shares, such Shareholder shall immediately procure the resignation of all the Directors at the time holding office by reason of their nomination by such Shareholder. In the event that the Relevant Percentage of a Shareholder falls below any of the relevant shareholding thresholds set out in Clause 5.1, such Shareholder shall comply with Clause 5.1 and immediately procure the resignation of the relevant number of Director(s) at the time holding office by reason of their nomination by such Shareholder.

5.4  

Any Shareholder removing a Director in accordance with this Clause 5 and the relevant provisions of the Articles of Association shall be responsible for and shall hold harmless the other Shareholder and the Company from and against any claim for damages, loss of office, wrongful dismissal or otherwise arising out of such removal and any reasonable costs and expenses incurred in defending such proceedings including, but without prejudice to the generality of the foregoing, legal costs actually incurred.

5.5  

The Board shall meet at least once every financial quarter and as required in accordance with and subject to the Articles of Association. At each meeting of the Board and in respect of each resolution proposed to the Board each Director shall have one vote. Subject to Clause 5.10, Clause 5.11 and Clause 6.1, all resolutions of the Board shall be passed by simple majority vote.

5.6  

Unless waived by a majority of the Directors, not less than seven days’ notice, which period of notice shall be exclusive of the day on which the notice is served or deemed to be served and the day for which the meeting is called, of all

meetings of the Board shall be given to each Director and shall be accompanied by an agenda of the business to be transacted at such meeting together with all papers to be circulated or presented to the same. Within no more than ten days after each such meeting, a certified copy of the minutes of that meeting shall be delivered to each Director.

5.7  

The chairman of the Board (the “Chairman” ) shall at all times be a Director, with each of Geron and BRC rotating to have the right to appoint and remove the Chairman every twelve months. The first Chairman shall be appointed by Geron. In the case of an equality of votes at any meeting of the Board or of the Shareholders, the Chairman shall not be entitled to a second or casting vote.

5.8  

No meeting of the Board may proceed to business nor transact any business unless a quorum is present at the start of and throughout such meeting. A quorum of the Board shall be two BRC Directors and two Geron Directors 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 Board meeting, 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 two BRC Directors and two Geron Directors 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 such duly adjourned Board meeting, that meeting shall be further 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.

5.9  

Each Director may in accordance with and subject to the Articles of Association, appoint an alternate to represent him at meetings of the Board which he is unable to attend. Such alternate shall be entitled to attend and vote at meetings of the Board and to be counted in determining whether a quorum is present. Each alternate director shall have one vote for every Director whom he represents in addition to any vote of his own.

5.10  

Subject only to Clause 6.1, a resolution of the Board shall be validly passed if the text of the resolution has been signed or approved by each Director or his alternate in accordance with the Articles. Such resolution shall be sent to each Director and shall require a response within a period specified in the notice of such resolution, being not less than seven days after its date of despatch and no resolution shall take effect until the expiry of such period unless a majority of the Board has waived this requirement.

5.11  

Subject only to Clause 6, the business of the Company shall be managed by the Board which may delegate any of its powers, including the day-to-day running of

the Business, to a joint operating committee (the “ Joint Operating Committee ”) as described in Clause 7. The Joint Operating Committee shall, in the exercise of the powers so delegated, conform to any regulations that may be imposed on it by the Board. If the Board so authorises or requests, auditors, consultants, advisers and employees shall be permitted to attend and speak at meetings of the Board, but not to vote.

5.12  

Directors may participate in a meeting of the Board by means of telephone conference, video conferencing or similar communications equipment whereby all persons participating in the meeting can hear each other and such participation shall constitute presence in person.

5.13  

Each Shareholder hereby consents to receiving not less than seven days’ notice (or such shorter notice as consented to by the Shareholders in writing) of each Shareholders’ meeting, which period of notice shall be exclusive of the day on which the notice is served or deemed to be served and the day for which the meeting is called and each such notice shall specify the business to be transacted thereat. The quorum for Shareholders’ meetings shall be at least one duly authorised representative of BRC and at least one duly authorised representative of Geron, with each Share having one vote. A quorum must be present at the beginning of and throughout each meeting. In the event that a quorum of Shareholders is not present at the start of and throughout a duly convened Shareholders’ meeting, that meeting shall be adjourned to the same time and place on the same day in the next week and a quorum at such adjourned meeting shall consist of at least one duly authorised representative of BRC and at least one duly authorised representative of Geron, with each Share having one vote. In the event that a quorum of Shareholders is not present at the start of and throughout such duly adjourned Shareholders’ meeting, that meeting shall be further adjourned to the same time and place on the same day in the next week and a quorum at such adjourned meeting shall consist of the duly authorised representative of any Shareholder present at such adjourned meeting. The Chairman shall preside as chairman at every Shareholders’ meeting. Questions arising at any Shareholders’ meeting shall be decided by a simple majority vote of those present or participating via other permitted means and entitled to vote, except where a greater majority is required by the Articles of Association, any agreement between the Shareholders or by any relevant law and in the case of an equality of votes, the Chairman shall not have a casting vote. Shareholders may participate in a Shareholders’ meeting by means of telephone conference, video conferencing or similar communications equipment whereby all persons participating in the meeting can hear each other and such participation shall constitute presence in person or by proxy or representative. Shareholders’ resolutions may be passed by circular resolutions signed by or on behalf of all the Shareholders.

5.14  

Each Shareholder shall exercise or refrain from exercising any voting rights or other powers of control so as to ensure the passing of any and every resolution necessary or desirable to procure that the affairs of the Company are conducted in accordance with the provisions of this Agreement and otherwise to give full effect to the provisions of this Agreement and likewise to ensure that no resolution is passed which does not accord with such provisions.

5.15  

The remuneration (if any) of the Directors shall be determined by, and subject to the unanimous approval of, the Shareholders.

6.   

Prior Approval Required for Certain Board and Shareholders Actions

6.1  

Following Completion and save as otherwise provided in this Agreement, the Shareholders shall exercise all voting rights and other powers of control available to them in relation to the Company to procure that the Company and/or the Board shall not, without the prior written approval of BRC and Geron:

6.1.1  

make or agree to make any change to the authorised or issued share capital from time to time of the Company or grant any option over or interest in, or issue any instrument carrying rights of conversion into, any other security or share of the Company or redeem or purchase any of its own shares or effect any other re-organisation of its share capital;

6.1.2  

permit the registration of any person as a shareholder (whether by way of subscription or transfer) other than as permitted by this Agreement;

6.1.3  

make any change to the Company’s Memorandum or Articles of Association;

6.1.4  

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 to its bankers for sums borrowed in the ordinary and proper course of the Business;

6.1.5  

permit the Company to incur any indebtedness in excess of that provided in the Operations Plan;

6.1.6  

make any loan or advance or give any credit (other than normal trade credit) to any person;

6.1.7  

give any guarantee, indemnity or security to secure the liabilities or obligations of any person;

6.1.8  

except as otherwise specifically provided for in the Operations Plan, (i) sell, transfer, lease, assign, dispose of or part with control of any interest in all or any material part of the undertaking, business, property or assets (tangible or intangible) of the Company (whether by a single transaction or a series of transactions) or contract to do so or (ii) acquire or contract to acquire any business, property or assets (tangible or intangible) or any interest therein which would, following such acquisition constitute a material part of the business, property or assets of the Company;

6.1.9  

set up or close down any branch or office or create, acquire or dispose of any subsidiary or of any shares or any security or any interest in any subsidiary;

6.1.10  

take or agree to take any leasehold interest in, or licence over, any land;

6.1.11  

enter into any partnership or profit sharing agreement or joint venture with any person;

6.1.12  

approve the semi-annual operations plan, budget and capital expenditure programme or make any substantial alteration to the Operations Plan including any material change to the nature and/or geographical area of the Business or take or ratify any action materially in conflict with the Operations Plan;

6.1.13  

acquire, purchase or subscribe for any shares, loan stock, debentures, mortgages or securities (or any interest therein) or any other interest in any person;

6.1.14  

grant any power of attorney, delegate directors’ powers (other than as provided in this Agreement) or fail to comply with any guidelines or directives issued by the Board which are consistent with the remainder of this Agreement;

6.1.15  

enter into, vary or terminate any contract or transaction for the disposal or licensing to any other person of any rights in respect of Collaboration Inventions or whereby any person would or might receive remuneration calculated by reference to its income or profits;

6.1.16  

make any composition or arrangement with its creditors, move for insolvency, receivership or administration or do or permit or suffer to be done any act or thing whereby the Company may be wound up (whether voluntarily or compulsorily), save as otherwise expressly provided for in this Agreement;

6.1.17  

declare or make any dividend or other distribution in cash or in specie and whether out of revenue profits, capital profits or capital reserves save as required by Clause 15;

6.1.18  

commence the prosecution or defence of, or settle, any legal or arbitration proceedings other than routine debt collection, except for any such action which involves a Shareholder or any of its Associated Companies and in such case, such Shareholder and its nominated Directors shall not be permitted to vote on such matters;

6.1.19  

enter into, vary or terminate any of the Ancillary Agreements (other than in accordance with its terms), any agreement between the Company and any of the Shareholders or any of the Associated Companies of any Shareholder;

6.1.20  

establish, cancel, or vary the terms of any pension, retirement, profit sharing, share option, profit related, bonus or incentive scheme;

6.1.21  

enter into, effect or vary any claim, disclaimer, surrender, election or consent of a material nature for tax purposes;

6.1.22  

change its name or trade under any corporate or trade name;

6.1.23  

change its financial year, auditors or registered office;

6.1.24  

factor or assign any of its book debts;

6.1.25  

open or close any bank account or change the terms of the mandate of any bank account of the Company;

6.1.26  

adopt the annual accounts or, otherwise than as required by law, amend the Agreed Accounting Policies;

6.1.27  

engage or agree to engage any person as an employee of the Company, set the terms of employment of any such person or vary or terminate the terms of employment of any employee of the Company;

6.1.28.  

make any gift or political or charitable donation;

6.1.29  

file an IND, NDA, or similar application or filing with any U.S. or foreign regulatory agency;

6.1.30  

repay any loan made by any Shareholder to the Company, other than pro rata with repayments by the Company of other loans made by the other Shareholders or other than in accordance with the Operations Plan;

6.1.31  

incur any capital expenditure or liability in excess of US$100,000 (or the equivalent in any other currency) per transaction, or which when aggregated with previous transactions of a similar nature in any 12 month period would exceed US$100,000 (or the equivalent in any other currency) for that 12 month period, unless expressly provided for in the Operations Plan;

6.1.32  

enter into any reorganization, recapitalization, reconstruction of share capital or consolidation or any scheme of arrangement of the Company; and

6.1.33  

make any calls upon the Shareholders in respect of all or any part of the monies unpaid on the Shares held by them respectively.

6.2.  

The Parties shall procure that the Company shall (so far as it is legally able to do so) observe and comply with the provisions, prohibitions and restrictions in this Clause 6.

7.   

Joint Operating Committee

7.1  

The Joint Operating Committee shall consist of two representatives of Geron (one of whom shall serve as Chair) and two representatives of BRC, and shall communicate frequently (at least monthly) in formal or informal meetings and/or telephone conferences.

7.2  

Subject to the final authority of the Board, the Joint Operating Committee shall oversee and provide day-to-day management of all aspects of the Collaboration Program and of the development and commercialisation of the Collaboration Products, including without limitation the plans for conducting preclinical and clinical research and development, manufacturing, obtaining regulatory approvals, and sales and marketing of the Collaboration Products. The Joint Operating Committee shall (i) implement the Phase I Work Plan and the Phase II Work Plan as approved by the Board, including defining the specific projects or tasks to be performed, determining the best place to perform each project or task (whether at the Company, Geron, BRC, or elsewhere), determining the appropriate funding

and personnel for each, and monitoring and otherwise managing the performance of each project or task; (ii) if appropriate in the Joint Operating Committee’s judgment, propose modifications to the Phase I Work Plan and/or the Phase II Work Plan and submit them to the Board for approval; and (iii) perform such other functions as are assigned to it by the Board.

7.3  

The Joint Operating Committee shall seek to achieve unanimity on all issues coming before it. In the event that the Joint Operating Committee is unable to reach a unanimous decision on any issue, then the matter shall be decided by a simple majority vote and in the case of an equality of votes, the Chair of the Joint Operating Committee shall not have a casting vote. If the vote on a matter before the Joint Operating Committee is a tie, any member of the Joint Operating Committee may refer the matter to the Board for decision by a written notice to the Board, with copies to the members of the Board and the Joint Operating Committee, that describes the matter as presented to the Joint Operating Committee.

8.   

Finance

8.1  

In the event that the Company’s financial resources are at any stage insufficient to satisfy its working capital requirements as determined by the Board, the Shareholders will at the option of the Board be offered the opportunity, but without any obligation, to either:

8.1.1  

advance loans to the Company on a pro rata basis in accordance with their then Relevant Percentage (a “New Advance”); or

8.1.2  

subscribe for additional Shares on a pro rata basis in accordance with their then Relevant Percentage (as “New Subscription”).

8.2  

If either Shareholder (an “Electing Shareholder”) elects not to make a New Advance or a New Subscription in accordance with this Clause 8 within a period of twenty-one days from the Board’s call therefor, then the other Shareholder shall have the right, upon written notice to the Board and to the Electing Shareholder, to make both its own New Advance or New Subscription and the New Advance or New Subscription of the Electing Shareholder, at the Prescribed Price per Share in the case of New Subscriptions, as of the date of such written notice, and the Shareholders shall procure that the necessary authorisations are given and steps taken for such Shares to be allotted and issued to such other Shareholder.

8.3  

Save as provided in this Clause 8 and the Funding Schedule, no Shareholder undertakes to provide any loan or share capital to the Company nor to give any

guarantee, security or indemnity in respect of any of the liabilities or obligations of the Company.

9.   

Transfer of Shares

9.1  

No transfer of any Share to any other party shall be registered before the end of Phase II without the express written consent of the non-transferor Shareholder (to be granted or withheld in its sole discretion) and thereafter only if:

9.1.1  

the proposed transferee (if not already bound by the provisions of this Agreement) has entered into a Deed of Adherence; and

9.1.2  

such transfer is made in compliance with this Clause 9 and the provisions contained in Schedule 5; and

9.1.3  

except where the transfer is in accordance with Clause 9.2, the transferor assigns and the transferee accepts an assignment of the benefit of all or, in the case of a transfer of part of the Shares of a Shareholder a proportionate part, of any loans made to the Company by the transferor or any of its Associated Companies and for the time being outstanding and assumes all the obligations of the transferor in respect of all, or a proportionate part, of any guarantee given by the transferor on behalf of the Company

and save as otherwise provided in this Agreement no Shareholder shall otherwise sell, transfer or dispose of any Share or Shares or any interest therein or create any Third Party Interest in respect thereof.

9.2  

Notwithstanding Clause 9.1, the Parties agree that a transfer of all of the Shares owned by a Shareholder to a transferee who is and remains either (i) a wholly-owned subsidiary of the ultimate holding company of the transferor Shareholder; (ii) the ultimate holding company of the transferor Shareholder; or (iii) a wholly-owned subsidiary of the transferor Shareholder, shall be permitted provided that:

9.2.1  

the obligations of the transferor Shareholder under this Agreement will remain unaffected by the proposed transfer;

9.2.2  

the transferee executes a Deed of Adherence contemporaneously with such transfer; and

9.2.3  

the Shares will be re-transferred to the transferor Shareholder (or, at the election of the transferor Shareholder by prior written notice to the other Shareholder, to another transferee that is either (i) a wholly-owned subsidiary of the ultimate holding company of the transferor

Shareholder; (ii) the ultimate holding company of the transferor Shareholder; or (iii) a wholly-owned subsidiary of the transferor Shareholder, in which case this Clause 9.2 shall apply to such transfer of Shares to another transferee) immediately upon the relevant transferee ceasing to be either a wholly-owned subsidiary of the ultimate holding company of the transferor Shareholder, the ultimate holding company of the transferor Shareholder or a wholly-owned subsidiary of the transferor Shareholder, as the case may be.

Each Shareholder shall provide to the other such information as the other may reasonably require to ascertain that the transferee has not ceased to be such a wholly-owned subsidiary.

9.3  

The Shareholders will procure that the Directors shall register any transfer of Shares which complies with the provisions of this Clause and Schedule 5.

10.   

Undertakings not to Compete

10.1  

Each of the Shareholders undertakes to and with the Company and the other Shareholder that for as long as it owns any Shares and for a period of * months thereafter ( “the Period” ):

10.1.1  

it shall not and it shall procure that none of its Associated Companies shall, other than by means of the Company, either on its own account or in conjunction with or on behalf of any other person, carry on or be engaged, concerned or interested directly or indirectly whether as shareholder, director, employee, partner, agent or otherwise in carrying on any activity or business within the Field of Use;

10.1.2  

without the prior written consent of the other Shareholder granted specifically with respect to the individual(s) in question, it shall not and it shall procure that none of its Associated Companies shall either on its own account or in conjunction with or on behalf of any other person, employ, solicit or entice away or attempt to employ, solicit or entice away from the Company or other Shareholder or any Associated Company of the other Shareholder any person who is or shall have been at the date of, or within one year prior to, the commencement of the Period an officer, manager, consultant or employee of the

Company or other Shareholder or any Associated Company of the other Shareholder including but not limited to any person who had been seconded to the Company, whether or not such person would commit a breach of contract by reason of leaving such employment, provided that nothing in this Clause 10.1.2 shall restrict a Shareholder or its Associated Companies from (a) continuing as the employer of any person who is appointed a director or officer of the Company or who is seconded to the Company, or (b) with respect to any person who is seconded to the Company, re-employing or continuing to employ such person after the expiry of the agreed term of their secondment; and

10.1.3  

it shall not in relation to any trade, business or company use a name, word or symbol or its Chinese equivalent in such a way as to be capable of or likely to be confused with the name or symbol of the Company and shall use all reasonable endeavours to procure that no such name shall be used by any person with which it is connected.

10.2  

Each and every obligation under this Clause 10 shall be treated as a separate obligation and shall be severally enforceable as such, and in the event of any obligation or obligations being or becoming unenforceable in whole or in part, such part or parts as are unenforceable shall be deleted from this Clause, and any such deletion shall not affect the enforceability of all such parts of this Clause as remain not so deleted.

10.3  

While the restrictions contained in this Clause 10 are considered by the Parties to be reasonable in all the circumstances, it is recognised that restrictions of the nature in question may fail for technical reasons and accordingly it is hereby agreed and declared that if any of such restrictions shall be adjudged to be void as going beyond what is reasonable in all the circumstances for the protection of the interest of the Parties but would be valid if part of the wording thereof were deleted or the periods thereof reduced or the range of activities or area dealt with thereby reduced in scope the said restriction shall apply with such modifications as may be necessary to make it valid and effective.

11.   

Deadlock

11.1  

In the event of a Deadlock and the issue by a Shareholder to the other of a notice in writing confirming that a Deadlock exists, the Shareholders shall, if either Shareholder so requests:

11.1.1  

within 28 days of the date of such request make or concur in the making of, or procure that their appointees on the Board shall make, a

statutory declaration in the terms mentioned in the relevant statute to place the Company in members’ voluntary liquidation (if the state of the Company’s affairs admits of the making of such a declaration);

11.1.2  

subsequently within the period specified by the relevant statute, convene an Extraordinary General Meeting of the Company to consider the matter from which the Deadlock arose and the passing of a special or extraordinary resolution to place the Company in members’ voluntary liquidation (if such a declaration as is mentioned in Clause 11.1.1 has been made) or (in any other case) in creditors’ voluntary liquidation; and

11.1.3  

where the state of the Company’s affairs does not admit of the making of such a declaration as is mentioned in Clause 11.1.1, convene a meeting of the Company’s creditors in accordance with the relevant statute to place the Company in creditors’ voluntary liquidation.

11.2  

If at the Extraordinary General Meeting referred to in Clause 11.1.2, no resolution is carried in relation to the matter from which the Deadlock arose by reason of an equality of votes for and against any proposal for dealing with such matter, the Shareholders shall vote in favour of the special or extraordinary (as the case may be) resolution for winding up the Company.

11.3  

Immediately upon the commencement of the winding up of the Company in accordance with Clause 11.1 or Clause 11.2 above, the Ancillary Agreements shall be deemed to be terminated in accordance with the termination provisions thereof and Geron shall grant the following rights:

11.3.1  

Geron shall grant to BRC, HKUST and the Associated Companies of HKUST a non-exclusive, non-transferable and fully paid-up licence to use, reproduce and exploit for research purposes (i) all Geron Existing IP; and (ii) all Geron Background IP (including without limitation trade secrets and knowhow) which has been made available to the Company prior to the commencement of the winding up of the Company; and

11.3.2  

(i) Geron shall grant to BRC the right to receive royalties equal to *% of Geron’s Net worldwide annual revenues (generated after the date of such grant) from sales of Licensed Geron Products or from sublicences granted by Geron under the Geron Existing IP and/or the Geron

11.4  

For the purposes of Clause 11.3.1, 12.3.2(a) and 12.4.2, the Parties acknowledge and agree that the licence granted by Geron for research purposes includes, without limitation, the following rights:

11.4.1  

the right to publish the results of such research;

11.4.2  

the right to own all Intellectual Property arising from such research and to file patent applications in respect of all such Intellectual Property; and

11.4.3  

the right to commercialise all Intellectual Property arising from such research. The Parties acknowledge that it is possible that commercialisation of such Intellectual Property may require a licence under other Intellectual Property owned or controlled by Geron (including, for example, Geron Existing IP or Geron Background IP), and that nothing in this Clause 11.4 shall be interpreted as granting the licensee any commercialisation rights under any of that other Intellectual Property.

11.5  

Geron shall pay to BRC the royalties specified in Clauses 11.3.2, 12.3.2(b) and 12.3.2(c) on a quarterly basis within 60 days after the end of each calendar quarter. All payments shall be made by wire transfer to the bank account designated by BRC in writing from time to time and shall be considered received on the date such funds actually are received in the account. Geron shall be solely responsible for any and all payments due from its sublicencees. With each payment Geron shall provide BRC with a written report that includes, for each calendar quarter, on a product-by-product and country-by-country basis: (i) the identity and quantity of Licensed Geron Products sold by Geron or its sublicencees; (ii) the identity of the countries in which such sales have been made; (iii) the gross and Net revenues from such sales; and (iv) the gross and Net sublicence revenues received by Geron on a sublicence-by-sublicence basis. After the first such report of sales with respect to any country, the reports shall include that country whether or not Geron or its sublicencees have engaged in any sales in that country during said quarter. Geron shall provide a copy of its audited financial statements for each relevant financial year to BRC as soon as practicable after they are prepared together with a written statement from a director or officer of Geron certifying the amount of the royalties payable to BRC in respect of such financial year. Any discrepancy as to the amount of royalties payable as shown by the audited financial statements for the relevant financial year shall be promptly corrected, within five (5) Business Days after such audited financial statements are made available to Geron, by payment or refund by either Geron or BRC (as appropriate) of the difference in the amount of royalties payable, together with the accrued interest. All payments of royalties by Geron to BRC hereunder shall be made in US$, without any set-off, deduction or withholding of any kind. If Geron is overdue with any payment of royalties to BRC hereunder, then Geron shall be liable to pay interest on the overdue amount at an annual rate of 3% above the prevailing prime lending rate of The Hongkong and Shanghai Banking Corporation Limited, which interest shall accrue on a daily basis from the due date for payment until BRC has received payment of all outstanding sums in full.

11.6  

Geron shall keep proper and adequate records and accounts of revenues in sufficient detail to enable the amounts payable to BRC under Clause 11 and Clause 12.3 to be reasonably determined. Geron shall require its sublicencees to keep such records as required by this Clause 11.6 and shall be solely responsible to BRC for such sublicencees’ compliance with this Clause 11.6. Upon reasonable notice to Geron, BRC shall have the right to have an independent certified public accountant, selected by BRC and reasonably acceptable to Geron, and under an appropriate obligation of confidentiality, audit Geron’s and Geron’s sublicencees’ records pertaining to sales and sublicences in the Field of Use to verify the amounts payable pursuant to this Agreement; provided , however, that such audit: (i) shall take place during normal business hours; (ii) shall not take

place more frequently than once a year; and (iii) shall not cover such records for more than the preceding five (5) years. Such audit shall be at BRC’s expense unless Geron has paid BRC less than ninety percent (90%) of the amount determined to be due for any full calendar year, in which case Geron shall reimburse BRC for all expenses related to such audit. Any discrepancy between the amount of royalties payable as shown by the results of such audit and the amount of royalties actually paid shall be promptly corrected, within ten (10) Business Days after the results of such audit are made available to Geron, by payment or refund, by either Geron or BRC (as appropriate) of the difference in the amount of royalties payable, together with the accrued interest. Geron shall (and shall require its sublicencees to) preserve and maintain all such records and accounts required for audit for a period of at least five (5) years after the quarter to which such records and accounts apply.

11.7  

If Geron or any other person is required by any law or regulation to make any deduction or withholding (on account of tax or otherwise) from any payment, Geron shall, or (as the case may be) shall procure that its sublicensee or such other person shall, together with such payment, pay such additional amount as will ensure that BRC receives (free and clear of any tax or other deductions or withholdings) the full amount which it would have received if no such deduction or withholding had been required. Geron shall forward to BRC with its royalty report copies of official receipts or other evidence showing that the full amount of any such deduction or withholding has been paid over to the relevant taxation or other authority.

12.   

Termination

12.1  

This Agreement shall become effective as of the Effective Date and shall continue in full force and effect until terminated in accordance with the provisions herein.

12.2  

In the event that either Shareholder shall commit or suffer an Event of Default, the Defaulter shall within five Business Days of the occurrence of such Event of Default notify the non-defaulting Shareholder in writing and the non-defaulting Shareholder shall (whether or not such notice is given by the Defaulter) be entitled but not obliged to give a Default Notice to the Defaulter.

12.3  

In the event a Default Notice is given pursuant to Clause 12.2 and the Defaulter is Geron, BRC may elect to do either (but not both) of the following:

12.3.1  

BRC may exercise a call option to purchase all, but not less than all, of Geron’s Shares (a “Call Option”) by serving on Geron, within 30 days of the later of either the date a Default Notice is served on the Defaulter or the expiration of any applicable cure period for the relevant Event of Default without such Event of Default (if capable of

remedy) having been remedied to the reasonable satisfaction of BRC (or of the Company in the case of the Ancillary Agreements), written notice (a “Call Option Notice”) of its wish to exercise the Call Option. Upon service of a valid Call Option Notice in accordance with this Agreement, Geron shall be bound to sell all of its Shares to BRC at the Prescribed Price. Completion of the purchase of all of Geron’s Shares shall take place no later than 14 days after the date on which the Prescribed Price applicable thereto shall have been determined or, if later, the date on which all governmental and other consents necessary for the purchase of such Shares have been obtained. On the date of completion of the purchase of all of Geron’s Shares, Geron and the Company shall enter into the Amendment to Licence Agreement (a copy of which is attached hereto as Schedule 10-A) to amend the Geron Licence Agreement; or

12.3.2  

BRC may exercise an option to wind up the Company in accordance with Clauses 11.1 and 11.2 (a “Wind Up Option”) by serving on Geron, within 30 days of the later of either the date a Default Notice is served on the Defaulter or the expiration of any applicable cure period for such Event of Default without such Event of Default (if capable of remedy) having been remedied to the reasonable satisfaction of BRC (or of the Company, in the case of the Ancillary Agreements), written notice (a “Wind Up Notice”) of its wish to exercise the Wind Up Option. Upon service of a valid Wind Up Notice in accordance with this Agreement, the Ancillary Agreements shall be deemed to be terminated in accordance with the termination provisions thereof and Geron shall grant the following rights:

(a)  

Geron shall grant to BRC, HKUST and the Associated Companies of HKUST a non-exclusive, non-transferable and fully paid-up licence to use, reproduce and exploit for research purposes, (i) all Geron Existing IP; and (ii) all Geron Background IP (including without limitation trade secrets and knowhow) which has been made available to the Company prior to the commencement of the winding up of the Company; and;

(b)  

Geron shall grant to BRC the right to receive royalties equal to *% of Geron’s Net worldwide annual revenues (generated after the date of such grant) from sales of Licensed Geron Products or from sublicences granted by Geron under the

Geron Existing IP and/or the Geron Background IP in the Field of Use until the total amount of such royalty payments received by BRC has equalled the excess of BRC’s cash contributions to the Company over Geron’s cash contributions to the Company, which royalty payments will be reduced to zero percent on a country-by-country basis when the relevant patents under the Geron Existing IP and the Geron Background IP expire; and

(c)  

Geron shall grant to BRC the right to receive royalties equal to *% of Geron’s subsequent Net worldwide annual revenues from sales of Licensed Geron Products or from sublicences granted by Geron under the Geron Existing IP and/or Geron Background IP in the Field of Use after the total amount of royalty payments received by BRC under (b) above has exceeded the excess of BRC’s cash contributions to the Company compared with Geron’s cash contributions to the Company, but so that the relevant royalty payments under this sub-paragraph (c) will be reduced to zero percent on a country-by-country basis when the relevant patents under the Geron Existing IP and the Geron Background IP expire.

12.4  

In the event a Default Notice is given pursuant to Clause 12.2 and the Defaulter is BRC, Geron may elect to do either (but not both) of the following:

12.4.1  

Geron may exercise a Call Option to purchase all, but not less than all, of BRC’s Shares by serving on BRC, within 30 days of the later of either the date a Default Notice is served on the Defaulter or the expiration of any applicable cure period for such Event of Default without such Event of Default (if capable of remedy) having been remedied to the reasonable satisfaction of Geron (or the Company, in the case of the Ancillary Agreements), a Call Option Notice. Upon service of a valid Call Option Notice in accordance with this Agreement, BRC shall be bound to sell all of its Shares to Geron at the Prescribed Price. Completion of the purchase of all of BRC’s Shares shall take place no later than 14 days after the date on which the Prescribed Price applicable thereto shall have been determined or, if later, the date on which all governmental and other consents necessary for the purchase of such Shares have been obtained. Effectively upon the completion of the purchase of all of BRC’s Shares, the Geron Licence Agreement shall be amended as mutually agreed between Geron and the Company; or

12.4.2  

Geron may exercise a Wind Up Option by serving on BRC, within 30 days of the later of either the date a Default Notice is served on the Defaulter or the expiration of any applicable cure period for such Event of Default without such Event of Default (if capable of remedy) having been remedied to the reasonable satisfaction of Geron (or the Company, in the case of the Ancillary Agreements), a Wind Up Notice. Upon service of a valid Wind Up Notice in accordance with this Agreement, (a) the Ancillary Agreements shall be deemed to be terminated in accordance with the termination provisions thereof; and (b) Geron shall grant to BRC, HKUST and the Associated Companies of HKUST a non-exclusive, non-transferable and fully paid-up licence to use, reproduce and exploit for research purposes, (i) all Geron Existing IP; and (ii) all Geron Background IP which had been used by the Company in accordance with the Geron Licence Agreement prior to the commencement of the winding up of the Company; and (iii) any Geron Background IP to the extent necessary to use, reproduce and exploit the Geron Existing IP.

13.   

Effect of Winding Up of the Company or a Shareholder Transferring its Shares

13.1  

Save as otherwise provided herein, if the Company is placed in winding up pursuant to the provisions of Clause 11 or Clause 12 or otherwise, then:

13.1.1  

the Ancillary Agreements shall be deemed to be terminated in accordance with the termination provisions thereof; and

13.1.2  

the provisions of this Agreement (other than Clauses 1, 10, 11.3-11.6,12, 13, 16, 17, 18, 19, 21, 23, 24, 29, 30, 31 and 34) shall cease to have effect save as may be necessary to give effect to the provisions of Clause 11 and Clause 12 or in relation to any antecedent claims which may have arisen between the Parties.

13.2  

Save as otherwise provided herein if a Party ceases to be a Shareholder by reason of the transfer of all of its Shares to another Shareholder or person, whether pursuant to Clause 12 or otherwise, then the provisions of this Agreement (other than Clauses 1, 10, 12, 13, 16, 17, 18, 19, 21, 23, 24, 29, 30, 31 and 34) shall cease to have effect in relation to the former Shareholder save as may be necessary to give effect to the provisions of Clauses 11 and 12 respectively or in relation to any antecedent claims which may have arisen between the Parties.

14.   

Undertakings Regarding the Operations of the Company

14.1  

Each of the Shareholders shall procure that the Company shall:

14.1.1  

maintain with a well established and reputable insurer adequate liability insurance against all risks usually insured against by companies carrying on the same or similar business to the Business;

14.1.2  

keep books of account and therein make true and complete entries of all its dealings and transactions of and in relation to the Business and, where applicable, the business of the Company; such books of account and all other records and documents relating to the business affairs of the Company shall be open to inspection by each of the Shareholders during normal business hours and on reasonable prior notice and they shall be permitted to take and remove copies thereof;

14.1.3  

provide each Shareholder with such periodic management accounts and reports as may be agreed upon by the Shareholders, in a form acceptable to the Shareholders;

14.1.4  

prepare such accounts in respect of each accounting period as are required by statute such accounts being prepared on an historical cost basis and using the Agreed Accounting Policies and procure that such accounts are audited as soon as practicable and in any event not later than 4 months after the end of the relevant accounting period; and

14.1.5  

keep each of the Shareholders fully informed as to all its financial and business affairs and in particular shall provide each of the Shareholders with full details of any actual or prospective material change in such affairs as soon as such details are available.

14.2  

The Shareholders shall procure that not later than 30 days before the beginning of each semi-annual financial period, the Board prepares and delivers to them a draft operations plan, incorporating the proposed semi-annual budget and cash flow forecast for the next semi-annual financial period.

14.3  

The Shareholders shall within such 30 day period approve the draft operations plan, subject to any amendments which they deem appropriate, whereupon it shall become the Operations Plan for that semi-annual financial period.

14.4  

At any time during a semi-annual financial period, the Board may propose to the Shareholders changes to the Operations Plan, to which they shall respond within 30 days of receipt of each such proposal.

15.   

Distribution Policy

16.   

Warranties

16.1  

Each of BRC and Geron represents and warrants to the other that:

16.1.1  

It is duly incorporated;

16.1.2  

It has the power to enter into and to exercise its rights and to perform its obligations under this Agreement;

16.1.3  

It has taken and will take all necessary action to authorise the execution of and the performance of its obligations under this Agreement;

16.1.4  

The obligations expressed to be assumed by it under this Agreement are legal, valid and binding;

16.1.5  

Neither the execution nor performance of this Agreement will contravene any provision of:

(a)  

Any existing law, treaty or regulation;

(b)  

Its memorandum and articles of association or equivalent constitutive documents; or

(c)  

Any obligation (contractual or otherwise) which is binding upon it, or upon any of its assets.

17.   

Confidentiality

17.1  

Each Shareholder undertakes to the other and to the Company that it will not and will procure that its respective officers, employees, agents, subsidiaries and other

persons under its Control and the respective officers, employees and agents of each such person, will not during the period of this Agreement, and after its termination (for whatever reason but subject to Clause 18.8 in the event of the winding up of the Company):

17.1.1  

save in the proper course of the provision of services on behalf of the Company, use or divulge to any person, or publish or disclose or permit to be published or disclosed, any secret or confidential information relating to the Company or any of the other Shareholders which it has received or obtained, or may receive or obtain (whether or not, in the case of documents, they are marked as confidential); and/or

17.1.2  

other than as required by the Company and save as specifically allowed herein, retain, duplicate or remove from the premises of the Company information relating to the Company or the other Shareholder in whatever form (whether written, or recorded in some other form, or oral) which is supplied by the Company or the other Shareholder to it or which comes to its notice during the period of this Agreement,

(i)  

the disclosure of information which the recipient can reasonably demonstrate is in the public domain through no fault of its own;

(ii)  

the disclosure of information which the recipient can reasonably demonstrate was in its possession prior to the date of this Agreement without any confidentiality obligations, as evidenced by written documents in its files;

(iii)  

the disclosure of information where the disclosure is required by law, pursuant to a court order or by any recognised stock exchange or governmental or other regulatory body when the Party concerned shall, if practicable, supply an advance copy of the required disclosure to the other Parties and incorporate any additions or amendments reasonably requested by them;

(iv)  

the disclosure of information in confidence to any professional adviser to any of the Parties for the purposes of obtaining advice or assistance in connection with its obligations or rights, or the obligations or rights of any other Shareholder or the Company hereunder or pursuant to any of the Ancillary Agreements; or

(v)  

the disclosure of information in confidence to or by any adviser to any of the Parties for the purposes of giving or obtaining advice or acting on behalf of the relevant Party in connection with a matter where disclosure of information is permitted pursuant to the provisions hereof; or

(vi)  

the disclosure of information by any Party to a potential purchaser of all or any of its Shares which is not a competitor of the Company and which has entered into obligations of confidentiality similar to those contained in this Clause.

17.2  

For the purposes of this Clause 17, “information” includes, without limitation, the following:

17.2.1  

information concerning the affairs or property of the Company or the other Shareholder or any business property or transaction in which the Company or the other Shareholder may be or may have been concerned or interested;

17.2.2  

the names and addresses of any client of the Company or the other Shareholder;

17.2.3  

information on the terms of this Agreement; or

17.2.4  

information relating to the business methods of the Company or the other Shareholder.

18.   

Intellectual Property

18.1  

Subject to the rights of Third Parties in Intellectual Property, the Company shall own all Collaboration Inventions generated by or on behalf of the Company, its employees, secondees and contractors and sub-contractors in the course of carrying out the Business.

18.2  

In the case of a Collaboration Invention made by employees, agents or contractors of a Shareholder (alone or in collaboration with others), such Shareholder shall assign to the Company all its right, title and interest in such Collaboration Invention.

18.3  

The Shareholders shall procure that the Company shall ensure that, and the Shareholders shall reasonably co-operate to ensure that, employees and secondees (and any contractors and sub-contractors) of the Company shall, where necessary, have agreed to assign to the Company (or assign to the relevant Shareholder for

assignment to the Company under Clause 18.2) their interest in any Collaboration Inventions generated by them in the course of the Business.

18.4  

The Shareholders shall reasonably co-operate to ensure that the Company uses all reasonable endeavours to procure the employees and secondees (and any contractors and sub-contractors) of the relevant Shareholder to fully disclose and record all Collaboration Inventions to enable the Company to fully collect, protect, exploit and commercialise the Collaboration Inventions.

18.5  

The Shareholders shall reasonably co-operate to ensure that the Company procures that, where necessary, written and irrevocable waivers of any such moral or other non-transferable rights have been given by the employees and secondees (and any contractors and sub-contractors) of the Company and the Shareholders, as the case may be.

18.6  

Without limiting any other provision of this Agreement, the Shareholders acknowledge and agree that during the continuance of this Agreement, the Collaboration Inventions shall not be sold, transferred, assigned, licensed or otherwise disposed of by a Shareholder or any member of the Company except in accordance with Clause 6.1.15.

18.7  

Each of the Shareholders agrees that any Collaboration Technology owned by a Shareholder or any of its Associated Companies which is made available for the use of the Company (under the BRC Licence Agreement, the Geron Licence Agreement, or otherwise) shall remain the property of the relevant Shareholder or its Associated Company.

18.8  

Each Shareholder 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 employees and secondees (and any contractors and sub-contractors) of the relevant members of the Company 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 Clause 18.

18.9  

Upon the commencement of the winding up of the Company, but subject to any other written agreement between the Shareholders, the Company’s interests in the Collaboration Inventions and in the Company’s confidential information shall be assigned to BRC and Geron jointly and become jointly owned by BRC and Geron, each of whom shall be free to use, reproduce, exploit and commercialise such interests, and to grant licences to Third Parties to do so, without any obligation to account to the other.

18.10  

The provisions of this Clause 18 shall survive any termination of this Agreement.

19.   

Expert Determination of Certain Matters

19.1  

Each of BRC and Geron shall in good faith use its best endeavours to agree upon the Prescribed Price within 30 days of the written notice specified under either Clause 8.2, Clause 12.3.1 or Clause 12.4.1. In the absence of agreement by BRC and Geron within such 30 day period, the Prescribed Price for purposes of Clause 8 shall be determined by a director of an independent investment bank of international repute (the “Expert”) who shall be selected (i) by agreement of the Shareholders, or (ii) if the Shareholders fail to agree within ten (10) Business Days after either Shareholder requests such selection, by two investment bankers (with each Shareholder having the right to designate one), who shall notify the Shareholders promptly upon making such selection, or (iii) upon request of either BRC or Geron if the two designated investment bankers fail to agree on the appointment of the Expert within ten (10) Business Days after the expiration of the ten (10) Business Day period in sub-clause (ii) above, by the Chairman of SIAC.

19.2  

The Expert shall determine the Prescribed Price in accordance with the following procedures:

19.2.1  

Within five (5) Business Days after selection of the Expert, each Shareholder may submit to the Expert and to the other Shareholder in writing its proposal for the Prescribed Price (“Proposal”);

19.2.2  

Within five (5) Business Days after each Shareholder has submitted its Proposal to the Expert, each Shareholder may submit to the Expert and to the other Shareholder concise written facts and arguments (not more than 20 pages) in support of its position;

19.2.3  

Within ten (10) Business Days after the date for submission of such written facts and arguments, the Expert may, in his discretion, hold a single meeting with both Shareholders, at a place determined by the Expert and lasting not more than one day, in which to hear directly from the Shareholders and ask them any questions he wishes;

19.2.4  

Within ten (10) Business Days after such meeting (or, in the absence of a meeting, after the expiry of the 5 Business Day period for the submission of written facts and arguments), the Expert shall determine the Prescribed Price, based on his professional judgment, and in making his determination, the Expert may, at his sole discretion,

decide whether or not to take into consideration the Shareholders’ Proposals and written submissions;

19.2.5  

The Expert shall act as an expert and not as an arbitrator and his written determination shall be final and binding on the Shareholders. The Expert shall make his working papers relating thereto available to each Shareholder upon request; and

19.2.6  

The costs and expenses of the Expert shall be borne by the Shareholders according to the Relevant Percentages.

20.   

Mutual Co-operation

20.1  

Each of the Shareholders agrees that it will use all reasonable endeavours to promote the business and profitability of the Company.

20.2  

Each of the Parties shall do and execute or procure to be done and executed all such acts, deeds, documents and things as may be within its power including in relation to the Shareholders (without prejudice to the generality of the foregoing) the passing of resolutions (whether by the Board or in general meeting or any class meeting of the Company) to give full effect to this Agreement and to procure that all provisions of this Agreement are observed and performed.

20.3  

Each of the Shareholders agrees with the other that this Agreement is entered into between them and will be performed by each of them in a spirit of mutual co-operation, trust and confidence and that it will use all means reasonably available to it (including its voting power whether direct or indirect, in relation to the Company) to give effect to the objectives of this Agreement and to ensure compliance by the Company with its obligations.

20.4  

Each Shareholder undertakes with the other that whilst it remains a Shareholder, it will not (except as expressly provided for in this Agreement) cast any of the voting rights exercisable in respect of any of the Shares held by it in accordance with the directions, or subject to the consent of, any other person (other than an Associated Company or in the case of BRC, other than The Hong Kong Jockey Club Charities Trust or an Associated Company).

21.   

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 Parties shall have given their respective consents 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).

22.   

No Partnership

Nothing contained or implied in this Agreement shall constitute or be deemed to constitute a partnership between the Parties and save as expressly agreed herein none of the Parties shall have any authority to bind or commit any other Party.

23.   

Conflict with Articles of Association

The Shareholders hereby agree that if and to the extent that the Articles of Association conflict with the provisions of this Agreement, this Agreement shall prevail for so long as it is in force and each Shareholder shall take all such further steps as may be necessary or requisite to ensure that the provisions of this Agreement shall prevail, including without limitation assisting, on request by either Shareholder, in convening a general meeting and voting in favor of amendments to the Articles of Association to conform with the terms of this Agreement.

24.   

Remedies

Each Party acknowledges and agrees that if any of them shall breach the warranties, representations, indemnities, covenants, agreements, undertakings, and obligations (for the purposes of this Clause referred to as the “Agreed Terms” ) on each of their parts contained in this Agreement or any other agreement entered into pursuant to it, damages may not be an adequate remedy in which case the Agreed Terms shall be enforceable by injunction, order for specific performance or such other equitable relief as a court of competent jurisdiction may see fit to award.

25.   

Costs

Each Party shall pay its own costs and disbursements of and incidental to the preparation and execution of this Agreement.

26.   

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 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.

27.   

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.

28.   

Variation

No variation or amendment to this Agreement shall be effective unless in writing signed by authorised representatives of each of the Parties.

29.   

Notices

Any notice required to be given by any 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 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.

30.   

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.

31.   

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.

32.   

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.

33.   

Survival of Provisions

All of the provisions of this Agreement shall remain in full force and effect notwithstanding Completion (except insofar as they set out obligations which have been fully performed at Completion).

34.   

Governing Law and Dispute Resolution

34.1  

This Agreement shall be governed by and construed in accordance with the laws of Hong Kong.

34.2  

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.

On the Completion Date:

1.  

The Parties will procure that a meeting of the Board shall be held to approve and pass resolutions substantially in the form specified in draft minutes in the approved terms (including resolutions to approve the issue of the A Shares and B Shares as referred to in this Schedule 2 and to adopt the Articles of Association);

2.

(i) 

 BRC shall deliver to the Company an unconditional application in writing for the allotment to it for cash (a) at par of * A Shares and * B Shares and shall pay US$11,997 to the Company in full payment for the said A Shares and B Shares and the Company shall accept such subscriptions and shall credit such Shares as fully paid; (b) at an issue price of US$5,988,002 of * A Share and shall pay US$1 to the Company in part payment for the said A Share and the Company shall accept such subscription as so partly paid up; and (c) at an issue price of either US$* if BRC does not make the BRC Phase II Contribution and US$* if BRC does make the BRC Phase II Contribution of one B Share and shall pay US$* to the Company in part payment for the said B Share and the Company shall accept such subscription as so partly paid up;

(ii)  

Geron shall deliver to the Company an unconditional application in writing for the allotment to it for cash (a) at par of * A Shares and * B Shares and shall pay US$11,998 to the Company in full payment for the said A Shares and B Shares and the Company shall accept such subscriptions and shall credit such Shares as fully paid; (b) at an issue price of US$1,988,002 of * A Share and shall pay US$1 to the Company in part payment for the said A Share and the Company shall accept such subscription as so partly paid up; and (c) at an issue price of either US$* if Geron does not make the Geron Phase II Contribution and US$* if Geron does make the Geron Phase II Contribution of * B Share and shall pay US$1 to the Company in part payment for the said B Share and the Company shall accept such subscription as so partly paid up;

(iii)  

BRC shall deliver duly executed copies of the BRC Licence Agreement and the BRC Services Agreement;

(iv)  

Geron shall deliver duly executed copies of the Geron Licence Agreement and the Geron Services Agreement; and

(v)  

the Company shall deliver duly executed copies of the BRC Licence Agreement, the BRC Services Agreement, the Geron Licence Agreement and the Geron Services Agreement.

3.  

Subject to completion of the matters referred to in paragraph 2 above, the Parties shall procure that:

(i)  

The initial nominees of BRC and the initial nominees of Geron shall be appointed as BRC Directors and Geron Directors respectively; and

(ii)  

the Parties who are also parties to the any of the Ancillary Agreements shall enter into the relevant Ancillary Agreements and the Shareholders shall procure that their relevant Associated Companies and the Company enters into the same.

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:

(a)  

the greater part of the share capital of the controlled person or of the voting rights attaching to the controlled person’s shares; or

(b)  

the power to control the composition of any board of directors or governing body of the controlled person;

(a)  

any rights or powers which another person possesses on his behalf or is or may be required to exercise on his direction or behalf; and

(b)  

all rights and powers of any body corporate of which any controller alone or together with another or other controllers has control or of any two or more such bodies corporate;

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;