Contract for ASSIGNMENT OF RIGHTS between YIELDEX LTD. as Assignor and REGENOCELL THERAPEUTICS, INC. as Assignee dated as of 31st December 2009 SIAM PREMIER INTERNATIONAL LAW OFFICE LIMITED 26th Floor, The Offices at Central World, 999/9 Rama I Road,...
Contract
for
between
YIELDEX
LTD.
as
Assignor
and
as
Assignee
dated as
of
31st
December 2009
บริษัท
สำนักกฎหมายสากล สยามพรีเมียร์ จำกัด
SIAM
PREMIER INTERNATIONAL LAW OFFICE
LIMITED
26th Floor, The Offices at Central
World,
000/0
Xxxx X Xxxx, Xxxxxxxxx, Xxxxxxx 00000
XXXXXXXX
Tel.
x00(0) 0000 0000
Fax. x00(0)
0000 0000
xxx.xxxxxxx.xx.xx E-mail.
Xxxx@xxxxxxx.xx.xx
ASSIGNMENT
OF RIGHTS CONTRACT
Table of
Contents
Section
|
Page No.
|
|
01.
Definitions and Interpretation
|
01
|
|
02.
Assignment
|
03
|
|
03.
Purchase Price and Payment
|
03
|
|
04.
Closing
|
05
|
|
05.
Post Closing Co-operation
|
05
|
|
06.
Corporate Governance
|
05
|
|
07.
Representations and Warranties
|
06
|
|
08.
Conditions Precedent to Closing
|
08
|
|
09.
Additional Obligations of the Assignee
|
08
|
|
10.
Default
|
09
|
|
11.
Non-Competition
|
09
|
|
12.
Indemnities
|
09
|
|
13.
Transfer of Third Party Contracts
|
10
|
|
14.
Confidentiality
|
10
|
|
15.
Governing Law
|
11
|
|
16.
Dispute Resolution
|
11
|
|
17.
General Provisions
|
11
|
|
Schedule
1 – List of Countries included in the definition of Asia
|
14
|
|
Schedule 2 – Designees of the
Assignor
|
15
|
|
Appendix
1 – Form of Lock-Up Agreement
|
16
|
This ASSIGNMENT OF RIGHTS
CONTRACT (the
"Contract") is entered as of the 31st day of
December 2009 (the "Contract
Date")
BETWEEN
YIELDEX, LTD., a company duly
incorporated in Hong Kong (as defined below) with its registered office at
Basement, Xxxxx Xxxxx Tai Building, 1016 Tai Nam West Street, Hong Kong and
represented by its sole director, Xx Xxx Xxxx Xxxx , office number: +852 (2744)
8714 and email: xxxxxx@xxxx.xxx.xx (the "Assignor") and
REGENOCELL THERAPEUTICS, INC.,
a corporation duly registered and validly existing under the Laws of
Florida, with EIN Number 00-0000000, with its principal place of business at 0
Xxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Xxxxxx Xxxxxx of America, Phone: x0 000
000 0000, Fax: x0 000 000 0000, xxx.xxxxxxxxxx.xxx
and represented by its authorized person, Xx. Xxxxx X. Xxxxxxxxx, President and
Chief Executive Officer, mobile phone number: x0 000 000 0000 and email:
xxxxxxxxxx@xxxxxxxxxx.xxx (the "Assignee").
RECITALS:
A.
|
The
Assignor and its affiliates are engaged in the activities of stem cell
research, therapy development and clinical trials under the trade name
“TheraVitae” in the Hong Kong Special Administrative Region of the
People’s Republic of China and Bangkok
Thailand.
|
B.
|
The
Assignee and its subsidiaries conduct the business of stem cell
therapy treatments using adult stem
cells.
|
C.
|
The
Assignor’s assets include rights over its stem cell research, therapy
development and clinical trials in Thailand, part of which it wants to
assign and sell, and which the Assignee wants to
buy.
|
IN CONSIDERATION of the
agreements in this Contract and for other good and valuable consideration, the
receipt and sufficiency of which consideration is acknowledged, the Parties
enter the following agreements.
1.
DEFINITIONS AND
INTERPRETATION
1.1
|
Definitions
- The following definitions apply in this
Contract.
|
(a)
|
“Asia” means the
countries listed in Schedule
1.
|
(b)
|
The
"Assigned Rights"
means the right to use outside Asia the following rights of the
Assignor:
|
(i)
|
All
rights of the Assignor in patents and patent applications, if any, in
connection with its activities of stem cell research, therapy
development and clinical trials under the trade name “TheraVitae”;
and
|
(ii)
|
All
rights of the Assignor in the testing procedures, testing results and full
copy of data from clinical trials conducted by the Assignor in Thailand
from December 2003 through December 2009 and in all other related
procedures, software files, protocols related to treatment methods
learned, non confidential patient endorsements, files, and information,
videos, marketing brochures, doctors kits, patient reference manuals,
contracts and patient standard agreements through December 2009 and
customer relation management systems provided that this usage right
is non
exclusive;
|
provided
that the trademarks and trade names that the Assignor uses in its business are
not part of the assigned rights.
ASSIGNMENT
OF RIGHTS CONTRACT
(c)
|
"Closing" means the
execution of this Contract and making of the payments as stated in
Sub-Section 3.2 and Sub-Section 3.3.
|
(d)
|
“Corporate Governance
Agreement” means an agreement between persons who receive Shares
(as defined below) from the Assignee and the Assignee containing
provisions inter alia
restricting sales of the Shares for two (2) years from their
issuance.
|
(e)
|
“FDA Thailand” means the
Food and Drug Administration within the Ministry of Public Health of
the Kingdom of Thailand.
|
(f)
|
“Hong Kong” means the
Hong Kong Special Administrative Region of the People’s Republic of
China.
|
(g)
|
"Parties" means both the
Assignor and the Assignee and "Party" means either of
them.
|
(h)
|
“Shares” means the common
stock of the Assignee, par value one ten-thousandth of a United States
dollar (US$.0001) per share, of which forty-one million four hundred
thirty seven thousand five hundred (41,437,500) are issued and
outstanding as at the Contract Date. This definition does not include (i)
any common stock to be issued in a five hundred thousand US dollars
(US$500,000.00) private placement of up to one million (1,000,000) units,
each consisting of one (1) share of common stock and one warrant for one
share of common stock at seventy-five US cents (US$00.75) per
share of common stock for fifty US cents (US$00.50) per unit
and (ii) the six million (6,000,000) shares of common stock reserved for
an Employee/Consultant Pool of Stock Options of which one stock option has
been issued to the Assignee’s Chief Medical Officer for five hundred
thousand (500,000) shares at fifty US cents (US$00.50) per share of common
stock.
|
(i)
|
“Thailand” means the
Kingdom of Thailand.
|
(j)
|
“TV Israel” means
TheraVitae Limited, an Israeli
company.
|
(k)
|
“US” means the United
States of America.
|
1.2
|
Interpretation
- The following rules of interpretation apply unless the context suggests
otherwise.
|
(a)
|
References
to Sections, Schedules and Appendices are references to the Sections and
Schedules of this Contract.
|
(b)
|
The
Schedules and Appendices are an integral part of this
Contract.
|
(c)
|
Other
grammatical forms of a defined word or phrase have
a corresponding meaning.
|
(d)
|
The
singular includes the plural and vice
versa.
|
(e)
|
A
gender includes
all genders.
|
(f)
|
References
to day
or days
are to calendar days.
|
(g)
|
References
to a document
include references to such document as amended, supplemented or
replaced.
|
(h)
|
References
to a party
to a document include the successors and permitted substitutes and assigns
of that party.
|
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ASSIGNMENT
OF RIGHTS CONTRACT
(i)
|
Any
reference to writing
or an equivalent expression includes a reference to a facsimile
transmission, an email message or any comparable means of
communication.
|
(j)
|
References
to a person
includes natural and juristic persons (such as public companies limited,
limited companies, associations, foundations, partnerships and
unincorporated groups of people with power to contract) and government
authorities and their successors and
assigns.
|
(k)
|
Anything
mentioned after include, includes, including or such
as is
only illustrative and does not limit the generality of the preceding
reference.
|
(l)
|
References
to a law
include common or customary law, any constitution, decree, judgment,
legislation, order, ordinance, regulation, statute, treaty or other
legislative measure in any jurisdiction or any present or future
directive, regulation, request or requirement (in each case, whether or
not having the force of law, but if not having the force of law, the
compliance with which is in accordance with the general practice of
persons to whom the directive, regulation, request or requirement is
addressed).
|
|
(m)
|
Headings
are for convenience only and do not affect
interpretation.
|
2.
ASSIGNMENT
2.1
|
Subject
to the terms and conditions of this Contract, and in reliance on the
representations, warranties, and conditions in this Contract, the Assignor
hereby agrees to assign and sell the Assigned Rights to the Assignee, and
the Assignee hereby accepts such
assignment.
|
2.2
|
For
the avoidance of doubt, the Assignee confirms that the Assignor retains
the exclusive rights to the Assigned Rights within
Asia.
|
3. PURCHASE PRICE AND
PAYMENT
3.1
|
Purchase
Price. The total consideration (“Purchase Price”) for the
Assigned Rights shall be payable by the Assignee to the Assignor in
two (2) forms, cash and
shares.
|
3.2
|
Cash
Portion of Purchase Price. The Assignee shall pay five million US
dollars (US$5,000,000.00) in cash (“Cash Payment”) to the
Assignor as follows:
|
(a)
|
the
Assignee shall pay twenty-five thousand US dollars (US$25,000.00) to the
Assignor upon signing this
Contract;
|
(b)
|
the
Assignee shall pay seventy-five thousand US dollars (US$75,000,00) to TV
Israel upon signing this
Contract;
|
(c)
|
the
balance of four million nine hundred thousand US dollars (US$4,900,000.00)
(the "Balance
Amount") of the Cash Payment shall be paid by the
Assignee to the Assignor as set out in Sections 9.1 and 9.2; provided that
full and final payment shall be made on or before 4th January 2015 and
further provided that the full remaining Balance Amount shall be
immediately due and payable if the Assignee or any of its subsidiaries (i)
enters an agreement for any form of business combination whatsoever
including merger, consolidation or amalgamation or (ii) enters an
agreement for the sale of all or a material part of its assets or (iii)
enters an agreement for any transaction similar to the foregoing
transactions;
|
(d)
|
the
Assignee shall make the Cash Payments by bank wire transfer to the
following account:
|
- 3
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ASSIGNMENT
OF RIGHTS CONTRACT
Beneficiary
Bank Name:
|
HSBC
Hong Kong
|
Bank
Code:
|
004
(optional)
|
Beneficiary
Bank Address:
|
Head
Xxxxxx
|
0
Xxxxx’x Xxxx Xxxxxxx, Xxxx Xxxx
|
|
SWIFT
Code:
|
XXXXXXXXXXX
|
Beneficiary
Account Name:
|
Yieldex
Limited
|
Beneficiary
Account Number:
|
000-000000-000
(Multicurrency and HKD Sav);
and
|
(e)
|
all
Cash Payments shall be made free and clear of any taxes (withholding or
otherwise), counter-claims, setoffs and any other deductions whatsoever by
the Assignee, so that the net amount the Assignor receives equals the
gross amount of the Cash Payment due to the Assignor before any such
withholdings or other
deductions.
|
3.3
|
Shares
Portion of Purchase Price. The
Assignee shall irrevocably issue forty million (40,000,000) Shares (the
“Payment Shares”)
to the Assignor concurrent with completion of the transfer of assets of TV
Israel to a wholly owned subsidiary of Assignee as further consideration
and part of the Purchase Price for the Assigned Rights. The following
provisions apply to the Payment
Shares.
|
(a)
|
The
Payment Shares shall be issued in the name of the Assignor or to such
persons (each a “Designee”) whose names
are set forth in Schedule 2, subject to the Assignor and each such
Designee delivering original duly executed Corporate Governance and Share
Lock-Up Agreements to the
Assignee.
|
(b)
|
The
Assignee shall at the Closing deliver the Payment Shares to the Assignor
and each Designee who has signed and delivered duly executed Corporate
Governance and Share Lock-Up Agreements (allocated as instructed by the
Assignor) at or before the
Closing.
|
(c)
|
If
the Assignee does not receive duly executed Corporate Governance and Share
Lock-Up Agreements from the Assignor and all Designees by the time of the
Closing, the Assignee shall at that time deliver the Payment Shares due to
those persons who have not delivered such Agreements to an escrow agent
mutually agreed by the Assignee and the Assignor pursuant to an escrow
agreement among the Assignor, the Assignee and the escrow
agent.
|
(d)
|
The
escrow agent shall hold the Payment Shares of each person entitled to
Payment Shares, but who has not delivered duly executed Corporate
Governance and Share Lock-Up Agreements to the Assignee, in escrow until
that person delivers duly executed Corporate Governance and Share Lock-Up
Agreements to the Assignee.
|
(e)
|
The
Assignee shall give such instructions to Florida Atlantic Stock Transfer
regarding cancellation of existing certificates for Payment Shares held in
escrow and the issuance of new certificates as shall be given by the
Assignor.
|
(f)
|
The
Payment Shares will not be registered pursuant to Section 5 of the US
Securities Act of 1933 and will be restricted securities within the
meaning set forth in Rule 144 of the US Securities and Exchange
Commission. The recipients of Payment Shares shall be subject to a two (2)
years’ lock-up period from the time they are received in addition to other
restrictions and conditions to be contained in the Corporate Governance
and Share Lock-Up
Agreements.
|
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ASSIGNMENT
OF RIGHTS CONTRACT
4.
CLOSING
4.1
|
The
Closing shall be held at the same time and place as the signing and
closing of the Asset Purchase Agreement made as of 31st December 2009
between Regenocell Laboratories Ltd, a company incorporated under the laws
of the state of Israel and Thera Vitae Limited, a company incorporated
under the laws of the state of
Israel.
|
4.2
|
The
Assignor shall deliver the Assigned Rights to the Assignee at the
Closing free and clear of any liens, charges, security interests and any
other rights of third parties and any other encumbrances, except those in
favor of the Assignee and the Assignor; provided that the Assignor shall
not be obligated to transfer to the Assignee any copies of the clinical
trial data collated for the application process as required by the FDA
Thailand until total Cash Payments made by the Assignee toward the
Purchase Price amount to one million US dollars
(US$1,000,000.00).
|
4.3
|
The
Assigned Rights will be delivered to the Assignee “as is” and the only
representations made by the Assignor to the Assignee about the Assigned
Rights are those expressly set forth in this Contract. No other
representation or warranty, expressed or implied, has been or will be
given by the Assignor to the Assignee, including representations or
warranties regarding the merchantability of the Assigned Rights or their
fitness for any particular purpose.
|
4.4
|
The
following actions will be taken and documents delivered at the
Closing.
|
(a)
|
The Assignor
will provide the Assignee with such forms and documents as the Parties
agree are needed for use outside Asia to evidence transfer of the Assigned
Rights.
|
(b)
|
The
Assignor shall have received confirmation from its bank that the payment
required in Section 3.2 (a) has been credited to the Assignor’s
account.
|
(c)
|
The
Assignor will designate two (2) reputable individuals to be directors
serving on the board directors of the Assignee (the “Board”).
|
5.
POST-CLOSING
CO-OPERATION
The
Parties will co-operate with one another as needed to effect any required
registration, recording, and filing with public authorities outside Asia of the
assignment and sale of the Assigned Rights to the Assignee.
6.
CORPORATE
GOVERNANCE
6.1
|
The
Assignee agrees to cause or procure amendment before the Closing of its
articles of incorporation, bylaws and any other documents relevant to its
corporate governance to provide for the
following:
|
(a)
|
the
Board shall consist of five (5)
persons;
|
(b)
|
the
Assignor or its designate shall have the right to designate two (2)
persons to serve as directors on the
Board;
|
(c)
|
unanimous
approval of all the directors then in office or approval of holders of at
least a majority of the shares of the Assignee will be required
for:
|
(i)
|
any
proposal to increase the Assignee’s capital in a way that would result in
dilution of existing shareholders’ percentages of participation in the
Assignee’s share capital by ten percent (10%) or more for any such
shareholder;
|
(ii)
|
any
proposal to merge, consolidate or amalgamate the Assignee with any other
corporate entity;
|
(iii)
|
any
proposal to sell all or a material part of the Assignee’s assets;
and
|
- 5
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ASSIGNMENT
OF RIGHTS CONTRACT
(iv)
|
any
proposal to amend the Assignee’s
by-laws.
|
6.2
|
The
Assignor shall enter a Lock-Up Agreement with the Assignee in the form
attached as Appendix 1 and a Corporate Governance Agreement with the
Assignee in such form as the Parties hereafter agree as soon as possible
on or after the Closing.
|
6.3
|
The
Assignor shall procure that each Designee similarly enters Lock-Up and
Corporate Governance Agreements among the Assignor, the Designees and the
Assignee at the time that such Designee receives an allocation of Shares
or as soon as possible
thereafter.
|
7.
REPRESENTATIONS AND
WARRANTIES
7.1
|
The
Assignor. The Assignor represents and warrants to the Assignee as
follows.
|
(a)
|
The
Assignor is duly incorporated and registered in Hong Kong, validly
existing and in good standing, and has all requisite authority to carry on
business as currently
conducted.
|
(b)
|
The
Assignor has all necessary corporate power, authority and capacity to
enter this Contract and to fulfill its
obligations.
|
(c)
|
The
execution and delivery of this Contract and the transactions contemplated
in it have been duly authorized by all necessary corporate action and the
Assignor has obtained or will have obtained by the Closing all
governmental approvals, permits and licenses and made all filings with
governmental authorities needed to enable the Assignor to enter this
Contract and perform its obligations in
it.
|
(d)
|
The
Assignor is exclusively entitled to possess and dispose of the Assigned
Rights, free and clear of any liens, charges, encumbrances or rights
of others.
|
(e)
|
The
execution and performance of this Contract will not breach any other
contract to which the Assignor is a party nor violate or contravene any
law or regulation binding the
Assignor.
|
(f)
|
The
Assignor owns or is licensed to use all necessary computer equipment and
software supporting the Assigned Rights and it can continue to use all
computerized records, files and programs such as clinical trial data and
patient records into the foreseeable future in the same manner as before
the Contract Date.
|
(g)
|
This
Contract as executed and delivered by the Assignor constitutes a legal and
binding obligation of the Assignor, enforceable in accordance with its
terms, except as enforcement may be limited by bankruptcy and insolvency,
by other laws affecting the rights of creditors generally and by equitable
remedies granted by a court of competent
jurisdiction.
|
(h)
|
Each
of the representations and warranties made by the Assignor is and will be
accurate and not misleading at the Contract Date and at the date of the
Closing.
|
7.2
|
The
Assignee. The Assignee represents and warrants to the
Assignor as follows.
|
(a)
|
The
Assignee is a corporation duly incorporated, validly existing and in good
standing under the laws of the US State of Florida, and has requisite
authority to carry on business as currently
conducted.
|
(b)
|
The
Assignee has all necessary corporate power, authority and capacity to
enter into this Contract and to fulfill its obligations under
it.
|
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ASSIGNMENT
OF RIGHTS CONTRACT
(c)
|
The
execution and delivery of this Contract and the transactions contemplated
in it have been duly authorized by all necessary corporate action and the
Assignee has obtained or will have obtained by the Closing all
governmental approvals, permits and licenses and made all filings with
governmental authorities needed to enable the Assignee to enter this
Contract and perform its obligations in
it.
|
(d)
|
The
Assignee has funds or has access to funds in amounts sufficient to pay the
amounts due from it under this Contract when due as well any expenses
incurred by the Assignee in connection with this
Contract.
|
(e)
|
The
Assignee has completed such due diligence as it deems necessary for
completing its purchase of the Assigned Rights and it is satisfied with
the results of its due diligence investigation and is prepared to close
the transaction as provided in this
Contract.
|
(f)
|
The
Assignee has not incurred any obligation, commitment, restriction or
liability of any kind, absolute or contingent, present or future, that
would adversely affect its ability to perform its obligations under this
Contract.
|
(g)
|
The
Assignee has not committed any act or omission that would give rise to any
valid claim relating to a brokerage commission, finder's fee, or other
similar payment in connection with the assignment of the Assigned
Assets.
|
(h)
|
This
Contract as executed and delivered by the Assignee constitutes a legal and
binding obligation of the Assignee, enforceable in accordance with its
terms, except as enforcement may be limited by bankruptcy and insolvency,
by other laws affecting the rights of creditors generally and by equitable
remedies granted by a court of competent
jurisdiction.
|
(i)
|
Each
of the representations and warranties made by the Assignee is and will be
accurate and not misleading at the Contract Date and at the date of the
Closing.
|
7.3
|
General.
|
(a)
|
The
representations and warranties given in this Contract are the only
representations and warranties that the Parties have given to one another.
The Parties have given no other representation or warranty, either
expressed or implied, to one
another.
|
(b)
|
The
Parties agree that no claim for the breach of a representation or warranty
or misrepresentation may be brought by one Party against the other
Party any later than five (5) years after the Contract Date.
Thereafter, the Parties shall have no further liability to one
another with regard to any of the representations or warranties in this
Contract.
|
(c)
|
Neither
Party will have liability to the other Party for a claim relating to
one or more representations or warranties until the Party claiming a
breach by the other Party notifies the other Party with full details of
the claim of default, demanding remedial action within no less than three
(3) months or other period mutually agreed by the Parties on or before the
fifth anniversary of the Contract
Date.
|
(d)
|
Where
one Party has a claim against the other Party relating to one or more
representations or warranties made by the other Party, and the damaged
Party is entitled to recover damages from a third party, then the amount
of the claim against the other Party will be reduced by the amount
recovered by the damaged Party from the third party less all reasonable
costs incurred by damaged Party in recovering the amount from the third
party.
|
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ASSIGNMENT
OF RIGHTS CONTRACT
8.
CONDITIONS
PRECEDENT TO
CLOSING
8.1
|
Conditions
Precedent applicable
to
both Parties. The obligations of the Parties to complete the
assignment and purchase of the Assigned Rights under this Contract are
subject to the satisfaction of the following conditions precedent by each
Party on or before the Closing, each of which may be wholly or partially
waived by the Party which is the obligee benefiting from the
obligation:
|
(a)
|
All
of the representations and warranties made by each Party in this Contract
will be true and accurate in all material respects on or before the
Closing.
|
(b)
|
Each
Party will obtain or complete all forms, documents, consents, approvals,
registrations, declarations, orders, and authorizations from any person or
any governmental or public body, required of the Party in connection with
the execution and performance of this
Contract.
|
8.2
|
Conditions
Precedent to the
obligations of the
Assignor. The
obligation of the Assignor to complete the assignment of the Assigned
Rights under this Contract is subject to the satisfaction of the further
conditions precedent that, on or before the Closing, the by-laws of the
Assignee shall have been amended as required by Section
6.
|
8.3
|
Conditions
Precedent to the
obligations of the
Assignee. The
obligation of the Assignee to complete and pay for the purchase of the
Assigned Rights under this Contract is subject to the satisfaction of the
further conditions precedent that, on or before the Closing no substantial
damage to or alteration of the Assigned Rights that would adversely affect
their value will occur between the Contract Date and the
Closing.
|
8.4
|
Failure
to satisfy Conditions
Precedent. If the either Party fails to satisfy any condition
precedent in this Contract that it is obligated to perform on or before
the Closing, and the other Party does not waive the condition, this
Contract will be of no effect on the date of Closing and there will be no
liability between the Parties, except for any provisions in this Contract
concerning forfeiture of payments that have been
made.
|
9.
ADDITIONAL OBLIGATIONS OF
THE ASSIGNEE
9.1
|
The
Assignee shall on and after 1st February 2010 pay the sum of five thousand
US dollars (US$5,000.00) for each commercial batch of stem cells that the
Assignee or any of its subsidiaries or licensees shall have shipped or
sent to buyers during the previous month over and above eight (8) such
commercial batches during such month. Payment for such
transaction becomes due and is payable ten (10) working days after the end
of the month in which the commercial batches of cells were
shipped.
|
9.2
|
The
Assignee shall apply twenty-five percent (25%) of any new equity funds,
net of third party selling expenses, that the Assignee receives to reduce
the Balance Amount (with appropriate adjustments to the subsequent
installments) until the Balance Amount is fully and finally
paid.
|
9.3
|
The
Assignee shall pay the Assignor the amount certified by the Assignor to be
the Assignor’s out of pocket costs and documented expenses that the
Assignor incurs in providing the Assignee with copies of the clinical
trial data collated for the application process as required by the FDA
Thailand included in the Assigned Rights and any related documentary
evidence and in providing support, as needed, in setting up training for
physicians for the Assignee’s clinicians plus an additional fifteen
percent (15%) of such amount for administrative charges. Such payment
shall be due and payable at or before the time that the Assignor delivers
such copies and related documentary evidence to the
Assignee.
|
- 8
-
ASSIGNMENT
OF RIGHTS CONTRACT
10.
DEFAULT
10.1
|
If
the Closing is not concluded due to a Party’s failure to satisfy its
obligations in this Contract or a Party’s failure to perform or fulfill
any conditions precedent set out in this Contract, then before any legal
proceedings can be commenced or this Contract rescinded, the other
Party must notify the defaulting Party to remedy such
default within one (1) calendar month of the date of the other Party’s
notice or such other period mutually agreed by the
Parties.
|
10.2
|
During
such time the Parties shall co-operate with one another and assist each
other to solve the problem or problems resulting in a Party’s failure to
perform. Legal proceedings may be brought and/or this Contract rescinded
only if the default is not cured and other agreement is not reached
between the Parties.
|
10.3
|
If
|
(a)
|
the
Closing is not concluded due to the Assignee’s failing to perform its
obligations in this Contract or failure to perform or fulfill any
conditions precedent set out in this Contract
or
|
(b)
|
the
Assignee breaches any of its obligations to the Assignor under this
Contract after the Closing
and
|
(c)
|
the
Assignee is unable to remedy the default within one (1) calendar month of
the date of the Assignor’s notice of breach and demand for rectification
or the Parties fail to agree on alternative actions
and
|
(d)
|
the
Assignor rescinds this Contract after the end of the one (1) month’s
period;,
|
then the
Assignee shall immediately effect a re-assignment of the Assigned Rights to the
Assignor, taking all actions and executing all documents needed to do
so.
The
Assignee shall give the same representations about the Assigned Rights and
undertake the same obligations regarding them as are given and undertaken by the
Assignor in the assignment to the Assignee.
Without
prejudice to any of its other rights, the Assignor shall not be required to
return any payments previously received from the Assignee despite such
re-assignment of the Assigned Rights.
11.
|
NON-COMPETITION
|
11.1
|
The
Assignor will not, either individually or in conjunction with any other
person or business entity or in any other manner whatsoever, for eight (8)
years after the Closing have an interest in, lend money to, advise or
permit its name to be associated with any business outside of Asia similar
to or in competition with the
Assignee.
|
11.2
|
If
the Assignee is required to re-assign the Assigned Rights to the Assignor
because of the Assignee’s breach of this Contract, the provisions of
Section 10.1 shall apply to the Assignee restricting it from competing
with the Assignor anywhere in the
world.
|
12.
INDEMNITIES
12.1
|
Each
Party shall indemnify the other Party against, and hold it harmless
from, any loss or liability whatsoever that the other Party incurs or
suffers by reason of the first mentioned Party’s breach of this Contract
or gross negligence or willful misconduct in dealing with the Assigned
Rights.
|
- 9
-
ASSIGNMENT
OF RIGHTS CONTRACT
12.2
|
The
Assignor will indemnify and save the Assignee harmless from and against
all claims, losses, damages, liabilities or expenses that the
Assignee may suffer in regards to any other liability or obligation
arising out of the ownership or operation of the Assigned Rights prior to
and including 31 December
2009.
|
12.3
|
The
Assignee will indemnify and save the Assignor harmless from and against
all claims, losses, damages, liabilities or expenses that the
Assignor may suffer in regards to any other liability or obligation
arising out of the ownership or operation of the Assigned
Rights after 31 December
2009.
|
12.4
|
The
Assignor agrees to indemnify the Assignee against any and all harm
suffered by the Assignee for any breach of the confidentiality obligations
in Section 14 by the personnel of the
Assignor.
|
12.5
|
The
Assignee agrees to indemnify the Assignor against any and all harm
suffered by the Assignor for any breach of the confidentiality obligations
in Section 14 by the personnel of the
Assignee.
|
13.
TRANSFER OF THIRD PARTY
CONTRACTS
13.1
|
This
Contract should not be construed as an assignment of any third party
contract from the Assignor to the
Assignee.
|
13.2
|
The
Assignee will be solely responsible for acquiring new contracts with third
parties. The Assignor will not be liable for any losses, costs or damages
of any kind including loss of revenue or decrease in value of the Assigned
Rights resulting from the failure of the Assignee to acquire the
assignment of any third party
contracts.
|
14. CONFIDENTIALITY
14.1
|
The
Assignor and the Assignee shall (mutatis mutandis)
comply with the provisions of the Confidentiality and Non-disclosure
Agreement executed on 4 December 2009 between Celestial Investment (HK)
Ltd. and the Assignee.
|
14.2
|
In
addition, the Assignor and the Assignee will hold confidential all
information (the "Confidential
Information") pertaining to this Contract including the terms
of this Contract, the Purchase Price, the Parties to this Contract, and
the subject matter of this Contract as well as any written or oral
information obtained about the respective Parties that is not currently in
the public domain. Confidential Information will not include the following
information.
|
(a)
|
Information
generally known in the respective industries of the Assignee and the
Assignor.
|
(b)
|
Information
that enters the public domain through no fault of the Assignee or the
Assignor.
|
(c)
|
Information
that is independently created by either the Assignee or the Assignor
without direct or indirect use of information obtained during the course
of negotiations for this
Contract.
|
(d)
|
Information
that is rightfully obtained by the Assignee or the Assignor from a third
party who has the right to transfer or disclose the
information.
|
(e)
|
Information
which is necessary to disclose for compliance with relevant laws and
regulations, court rules and/or governmental or regulator
rules.
|
14.3
|
Each
of the Assignor and the Assignee may disclose any Confidential Information
relating to this Contract to any of its employees, agents and advisors
where there is a need to know in relation to this Contract and where the
recipient of the information agrees to be legally bound by the same
burdens of
confidentiality.
|
- 10
-
ASSIGNMENT
OF RIGHTS CONTRACT
14.4
|
The
confidentiality restrictions in this Contract will continue to apply for
six (6) years after the last payment is made by the Assignee to the
Assignor under this
Contract.
|
15.
GOVERNING
LAW
This
Contract is governed by and is to be construed in accordance with the laws of
the US State of New York.
16.
DISPUTE
RESOLUTION
16.1
|
Each
of the Parties irrevocably consents to the non-exclusive jurisdiction of
the courts of the US State of New York in any legal proceedings arising
under this Agreement (without prejudice to any party's right to commence
legal proceedings in any other jurisdiction in which the other party or
parties may be present).
|
16.2
|
Each
Party agrees that any process in any legal proceedings will be effective
if served on it by mail (if permitted by the applicable procedural
rules).
|
17.
GENERAL
PROVISIONS
17.1
|
Communications.
|
|
(a)
|
Communications,
including notices and demands, under this Contract shall be in the English
language.
|
|
(b)
|
Communications
may be oral or written, but all notices and demands must be in writing and
duly signed on behalf of the sender. Any other material
communication made orally shall be confirmed in writing. The party
receiving an oral communication may ask for written
confirmation. If so, the other party shall confirm its oral
communication in writing. A party communicating orally has the right to
send written confirmation of its communication within a reasonable time
after the original communication.
|
|
(c)
|
Written
communications or written confirmations of oral communications
(hereinafter "Writings") may be in the form of a telefacsimile
transmission, an e-mail, a telex, a cable, a letter or any other form
generally accepted for the communication of written information or
messages. All Writings shall be hand delivered or sent by the
fastest available medium for delivery of such information or
messages.
|
|
(d)
|
All
communications to the Parties shall be addressed to them at their
addresses set out at the beginning of this Contract or as they otherwise
notify to one another.
|
|
(e)
|
Communications
shall only be effective on actual receipt by the person to whom the
communication is sent. Actual receipt of a telefacsimile
communication shall be deemed to occur when the sender receives
confirmation from the telecommunications machine that the complete message
was sent. Actual receipt of a telex communication shall be
deemed to occur when the sender receives an answerback from the
recipient's telex machine at the foot of the telex. However,
actual receipt of communications received after business hours in the
place to which they are sent shall not be deemed to occur until the
opening of business on the next following business
day.
|
- 11
-
ASSIGNMENT
OF RIGHTS CONTRACT
17.2
|
Expenses/Costs.
Each Party shall pay all its own costs and expenses in connection
with this Contract except as otherwise provided in this
Contract.
|
17.3
|
Severability
and
Validity.
|
(a)
|
The
Parties acknowledge that this Contract is reasonable, valid, and
enforceable; however, if a court of competent jurisdiction determines that
any provision of this Contract is invalid, it is the intent of the Parties
that such provision be reduced in scope only to the extent deemed
necessary to render the provision reasonable and enforceable and the
remainder of the provisions of this Contract will not be affected or
invalidated as a result.
|
(b)
|
Where
any provision in this Contract is found to be unenforceable, the Assignee
and the Assignor will then make reasonable efforts to replace the invalid
or unenforceable provision with a valid and enforceable substitute
provision, the effect of which is as close as possible to the intended
effect of the original invalid or unenforceable
provision.
|
(c)
|
The
Sections in this Contract are intended to be read and construed
independently of each other. If any part of this Contract is held to be
invalid, this invalidity will not affect the operation of any other part
of this Contract.
|
17.4
|
Entire
Contract. This Contract supersedes all other agreements, oral or
written, regarding the relationship between the Assignor and the assignee.
This Contract contains the entire agreement of the parties with respect to
its subject matter. It sets out the only conduct relied on by
the parties and supersedes all earlier conduct by the parties with respect
to its subject matter. Only the written terms of this Contract will bind
the Parties.
|
17.5
|
Amendments.
This Contract may only be amended or modified by a written instrument
executed by all of the
Parties.
|
17.6
|
Waivers.
No failure to exercise a right or delay in exercising a right under this
Agreement shall constitute a waiver of that right. A waiver by one Party
of any right or benefit provided in this Contract does not infer or permit
a further waiver of that right or benefit, nor does it infer or permit a
waiver of any other right or benefit provided in this Contract. Any such
waiver must be in a writing signed by a responsible person of the Party
giving a waiver.
|
17.7
|
Rights
and
Remedies Cumulative.
All of the rights, remedies and benefits provided in this Contract will be
cumulative and they will not be exclusive of any other such rights,
remedies and benefits allowed by law or equity. Rights, remedies and
benefits under this Agreement are in addition to those otherwise available
to the parties.
|
17.8
|
Assignments.
Neither Party may assign its rights or obligations under this Contract
without the consent of the other
Party.
|
17.9
|
Binding
Effect. This Contract will inure to the benefit of and be binding
upon the Parties' respective heirs, executors, administrators, successors
and permitted assigns. The parties acknowledge that they have read and
understood this Contract including, without limitation, that no promise or
agreement not set forth in this Contract has been made and that each party
signs this Contract of that party’s own free will and is bound by
it.
|
17.10
|
Language.
The English text of this Contract shall prevail if there is any conflict
between it and the text in any other language into which this Contract
might be translated.
|
- 12
-
ASSIGNMENT
OF RIGHTS CONTRACT
This
Contract may be executed in counterparts and all together will constitute one
and the same document.
The
undersigned, with full authority, hereby acknowledge and agree to the terms and
conditions of this Contract effective as of 31st December 2009, by executing
this Contract for and in the name of the Party for which they have given their
signatures as follows:
THE
ASSIGNOR
|
|||
Yieldex
Limited
|
|||
By:
|
/s/Mak Xxxx Xxxx
|
(Seal)
|
|
Xx
Xxx Xxxx Xxxx
|
|||
Authorized
Director
|
|||
THE
ASSIGNEE
|
|||
By:
|
/s/ Xxxxx X. Xxxxxxxxx
|
(Seal)
|
|
Xxxxx
X. Xxxxxxxxx
President
and Chief Executive
Officer
|
- 13
-
ASSIGNMENT
OF RIGHTS CONTRACT
Schedule
1
List
of Countries included in the definition of Asia
·
|
Afghanistan
|
●
|
Syria
|
·
|
Armenia
|
●
|
Taiwan
|
·
|
Australia
|
●
|
Tajikistan
|
·
|
Azerbaijan
|
●
|
Thailand
|
·
|
Bahrain
|
●
|
Timor
Leste (West)
|
·
|
Bangladesh
|
●
|
Tonga
|
·
|
Bhutan
|
●
|
Turkmenistan
|
·
|
Brunei
Darussalam
|
●
|
Uzbekistan
|
·
|
Cambodia
|
●
|
Vanuatu
|
·
|
China
|
●
|
Vietnam
|
·
|
Fiji
|
●
|
United
Arab Emirates
|
·
|
French
Polynesia
|
●
|
Yemen
|
·
|
Georgia
|
||
·
|
Guam
|
||
·
|
Hong
Kong
|
||
·
|
India
|
||
·
|
Indonesia
|
||
·
|
Iraq
|
||
·
|
Iran
|
||
·
|
Japan
|
||
·
|
Jordan
|
||
·
|
Kazakhstan
|
||
·
|
Kiribati
|
||
·
|
Korea,
North
|
||
·
|
Korea,
South
|
||
·
|
Kuwait
|
||
·
|
Kyrgyzstan
|
||
·
|
Laos
|
||
·
|
Lebanon
|
||
·
|
Macao
|
||
·
|
Malaysia
|
||
·
|
Maldives
|
||
·
|
Xxxxxxxx
Islands
|
||
·
|
Micronesia
|
||
·
|
Mongolia
|
||
·
|
Myanmar
|
||
·
|
Nepal
|
||
·
|
New
Caledonia
|
||
·
|
New
Zealand
|
||
·
|
Oman
|
||
·
|
Pakistan
|
||
·
|
Palestine
|
||
·
|
Papua
New Guinea
|
||
·
|
Philippines
|
||
·
|
Qatar
|
||
·
|
Russia
east of the Urals Mountains
|
||
·
|
Samoa
|
||
·
|
Samoa,
American
|
||
·
|
Saudi
Arabia
|
||
·
|
Singapore
|
||
·
|
Solomon
Islands
|
||
·
|
Sri
Lanka
|
- 14
-
ASSIGNMENT
OF RIGHTS CONTRACT
Schedule
2
Designees
of the Assignor
·
|
The
Assignor’s shareholders
|
|
·
|
Holders
of shares and options for shares of
:
|
|
·
|
In
Motion Investment Limited, a British Virgin Islands
company
|
|
·
|
Vascular
Holdings (HK) Limited, a Hong Kong
company
|
|
·
|
Vascular
Cell (Thailand) Company Limited and/or its
shareholders
|
|
·
|
Shareholders
of TheraVitae Company Limited, a Thai limited
company
|
The
Assignee agrees that the Assignor is entitled to modify the list of Designees at
any time.
- 15
-
ASSIGNMENT
OF RIGHTS CONTRACT
Appendix
1
Form
of Lock-Up Agreement
LOCK-UP
AGREEMENT
January
4, 2010
0 Xxxxx
Xxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Xxxxxx
Xxxxxx of America
Re: RegenoCELL
Therapeutics, Inc. (the "Company")
Gentlemen:
I am the
owner of record or beneficially of
shares (‘my Shares”) of common stock of the Company ("Common
Stock"). I understand that the Company proposes to obtain additional
financing through the sale of Common Stock or securities convertible into Common
Stock (“Offering”). I recognize that the Offering will benefit both
me and the Company by, among other things, providing additional capital for the
Company’s operations. I understand and acknowledge that the Company
and the underwriters are relying on my representations and agreements in this
letter in carrying out the Offering and entering underwriting arrangements with
respect to the Offering.
In
consideration of the foregoing, and intending to be legally bound, I hereby
agree that I will not offer to sell, contract to sell or otherwise sell,
transfer, dispose of, loan, pledge or grant any rights with respect to
(collectively, a "Disposition") my Shares of Common Stock, or any options or
warrants to purchase any shares of Common Stock or any securities convertible
into or exchangeable for shares of Common Stock (collectively, "Securities") now
owned or hereafter acquired directly or beneficially by me or with respect to
which I have the power of Disposition, for a period commencing on the date of
this Lock-Up Agreement and continuing for twenty four (24) months
thereafter (the "Lock-up Period"). This restriction will not apply to
(i) a bona fide gift or gifts, provided the donee or donees thereof agree in
writing to be bound by this restriction, (ii) Dispositions to my heirs after my
death or (iii) Dispositions made with the prior written consent of RegenoCELL
Therapeutics, Inc.
I agree
that the foregoing restriction precludes the holder of any Securities from
engaging in any hedging or other transaction that is designed to or reasonably
expected to lead to or result in a Disposition of Securities during the Lock-up
Period, even if someone other than me disposed of such
Securities. Such prohibited hedging or other transactions would
include, without limitation, any short sale (whether or not against the box) or
any purchase, sale or grant of any right (including, without limitation, any put
or call option) with respect to any Securities or with respect to any security
(other than a broad-based market basket or index) that includes, relates to or
derives any significant part of its value from Securities.
I
also agree and consent to the entry of stop transfer instructions with the
Company's transfer agent and registrar against the transfer of Securities held
beneficially or of record by me, except in compliance with the foregoing
restrictions. I further agree to deliver to you all certificates
representing Common Stock covered by this Lock-Up Agreement so that an
appropriate stop-transfer legend may be placed on such
certificates.
The
Company, acting alone and in its sole discretion, may waive any provisions of
this Lock-Up Agreement without notice to any third party. This
Lock-Up Agreement is irrevocable and will be binding on me and my successors,
heirs, personal representatives and assigns.
Sincerely
yours,
- 16
-