Securities Purchase Agreement, dated September 25, 2018, by and among the Company, Novartis Pharma AG and Shanghai Cellular Biopharmaceutical Group Ltd

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Article I DEFINITIONS		1
1.1	Certain Defined Terms	1
Article II PURCHASE AND SALE OF SHARES		8
2.1	Purchase of Shares	8
2.2	Closing	8
Article III CLOSING DELIVERABLES AND CLOSING CONDITIONS		8
3.1	Closing Deliveries by the Company	8
3.2	Closing Deliveries by the Purchaser	8
3.3	Conditions to Obligations of the Company	9
3.4	Conditions to Obligations of the Purchaser	9
Article IV REPRESENTATIONS AND WARRANTIES OF CBMG		10
4.1	Organization; Capitalization; Subsidiaries	10
4.2	Authorization	11
4.3	Valid Issuance of the Shares	11
4.4	No Conflict	12
4.5	Application of Takeover Protections	12
4.6	Consents	12
4.7	SEC Filings; Financial Statements	12
4.8	Solvency	13
4.9	Absence of Certain Changes	13
4.10	Compliance with Laws and Agreements	13
4.11	No Disagreements with Accountants and Lawyers	14
4.12	Intellectual Property	15
4.13	Employee Benefits	16
4.14	Taxes	16
4.15	Environmental Laws	16
4.16	Title	17
4.17	Insurance	17
4.18	Sarbanes-Oxley Act	17
4.19	Regulatory Matters	17
4.20	Ethical Practices	18
4.21	Litigation; Legal Matters	19
4.22	Data Privacy and Protection	29

 

 

4.23	Controls and Procedures	29
4.24	Registration and Listing of Shares	20
4.25	Price of Common Stock	20
4.26	Status	20
4.27	General Solicitation; No Integration or Aggregation	21
4.28	Brokers and Finders	21
4.29	No Directed Selling Efforts	21
4.3	Anti-Money Laundering	21
4.31	Reliance by the Purchaser	21
Article V REPRESENTATIONS AND WARRANTIES OF THE PURCHASER		21
5.1	Organization and Qualification	21
5.2	Authorization	21
5.3	No Conflict	22
5.4	No Registration of the Shares	22
5.5	Sophistication	22
5.6	Intent	22
5.7	Investment Experience	22
5.8	Independent Investigation	23
5.9	Not a Broker-Dealer	22
5.10	Not an Underwriter	23
5.11	Reliance on Representations and Warranties	23
5.12	Regulation S Exemption	23
5.13	Foreign Investors	24
5.14	No Governmental Review	24
5.15	Anti Money Laundering Law Compliance	24
Article VI LEGENDS, ETC.		24
6.1	Legend	24
6.2	The Purchaser’s Compliance	25
6.3	Company’s Refusal to Register Transfer of Shares	25
Article VII OTHER AGREEMENTS		25
7.1	Further Assurances	25
7.2	Confidentiality	25
7.3	Publicity	26
7.4	Registration	26
7.5	Reports under the Exchange Act	26
Article VIII TERMINATION		26

 

 

8.1	Pre-Closing Termination	27
8.2	Effect of Pre-Closing Termination	27
8.3	Post-Closing Termination	27
8.4	Effect of Post-Closing Termination	28
Article IX INDEMNIFICATION		28
9.1	Survival	28
9.2	Indemnification by the Company	28
9.3	Indemnification by the Purchaser	28
9.4	Indemnification Procedures	29
9.5	Limitations on Indemnification	30
9.6	General Indemnification Provisions	30
Article X GENERAL PROVISIONS		31
10.1	Expenses, Taxes, Etc.	31
10.2	Notices	31
10.3	Interpretation	32
10.4	Conflict Between Agreements	33
10.5	Severability	33
10.6	No Third-Party Beneficiaries	33
10.7	Assignment	33
10.8	Amendment; Waiver	33
10.9	Remedies; Specific Performance	33
10.10	Mutual Drafting	34
10.11	Governing Law	34
10.12	Arbitration	34
10.13	Consent to Jurisdiction; Waivers	35
10.14	WAIVER OF TRIAL BY JURY	35
10.15	Counterparts	35
10.16	Entire Agreement	35

 

 

 

 

 

 

 

 

 

1.1 Certain Defined Terms.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2.1 Purchase of Shares.

 

 

2.2 Closing.

 

 

 

 

3.1 Closing Deliveries by the Company.

 

 

(a) a legal opinion of Company counsel, substantially in the form agreed to prior to the execution of this Agreement;

 

(b) a duly issued book-entry certificate evidencing the number of Shares sold in exchange for the Purchase Price paid at the Closing registered in the name of the Purchaser;

 

(c) an executed counterpart of the Registration Rights Agreement; and

 

(d) a certificate of a duly authorized officer of the Company, dated as of the Closing Date, certifying as to the matters set forth in Section 3.4(a) and 3.4(b).

 

3.2 Closing Deliveries by the Purchaser.

 

(a) the Purchase Price, by wire transfer in immediately available funds in US dollars to the bank account designated by the Company and provided in Exhibit 2 to this Agreement;

 

(b) an executed counterpart of the Registration Rights Agreement; and

 

(c)  a certificate of a duly authorized officer of such Purchaser, dated as of the Closing Date, certifying as to the matters set forth in Section 3.3(a) and 3.3(b).

 

3.3 Conditions to Obligations of the Company.

 

 

(a) Representations and Warranties. The representations and warranties of the Purchaser shall be true and correct (disregarding all “materiality”, “Material Adverse Effect”, or similar qualifications, which shall be given no effect) in all material respects as of each date when made and as of the Closing Date, as though made at that time (except for representations and warranties that speak as of a specific date).

 

(b) Covenants. The Purchaser shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Purchaser at or prior to the Closing Date.

 

(c) No Order. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law or Order (whether temporary, preliminary or permanent) that has the effect of making the transactions contemplated by the Transaction Documents illegal or otherwise restraining or prohibiting the consummation of such transactions; and

 

(d) Qualifications. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Shares pursuant to this Agreement shall be obtained and effective as of the Closing.

 

3.4 Conditions to Obligations of the Purchaser.

 

 

(a) Representations and Warranties. The representations and warranties of the Company shall be true and correct (disregarding all “materiality”, “Material Adverse Effect”, or similar qualifications, which shall be given no effect) in all material respects as of the date when made and as of Closing Date as though made at such time (except for representations and warranties that speak as of a specific date).

 

(b) Covenants. The Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date.

 

 

(c) License and Collaboration Agreement. The License and Collaboration Agreement shall be in full force and effect.

 

(d) No Order. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law or Governmental Order (whether temporary, preliminary or permanent) that has the effect of making the transactions contemplated by the Transaction Documents illegal or otherwise restraining or prohibiting the consummation of such transactions;

 

(e) No Material Adverse Change. There shall not have occurred prior to the Closing any event or transaction reasonably likely to have a Material Adverse Effect. From the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the SEC or the Nasdaq Global Market and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on the Nasdaq Global Market, nor shall a banking moratorium have been declared by either the United States or New York State authorities, nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Purchaser, makes it impracticable or inadvisable to purchase the Shares at the Closing.

 

(f) Nasdaq Listing. The Shares shall have been approved for listing on the Nasdaq Global Market, subject to official notice of issuance.

 

 

 

 

4.1 Organization; Capitalization; Subsidiaries.

 

(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and has the requisite power and authority to own, lease and operate its properties and to carry on its business as now conducted, and is qualified to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification.

 

(b) Exhibit 1 hereto sets forth all of the Affiliates, including subsidiaries, of the Company and their respective ownership of corporate interests and relationship to the Company as of the date hereof and as of the Closing Date (the “Subsidiaries”). Each of the Subsidiaries is a corporation or other organization duly organized, validly existing and in good standing (where relevant) under the laws of its jurisdiction of organization, and has full corporate power and authority to own, use and operate its assets and to conduct its business as and where it is being conducted. Except for employee stock options granted in the normal course of business and as set forth in Section 4.1(c) below, there are no other securities, options, warrants, calls, rights, commitments or agreements of any character to which the Company is bound to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any of its corporate interests or obligating the Company to sell, transfer, deliver, assign, convey or purchase or cause to be sold, transferred, delivered, assigned, conveyed or purchased any corporate interests in the Company.

 

 

(c) Neither the Company nor any of its Subsidiaries is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws, or other organizational or charter documents. Each of the Company and its Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not have or reasonably be expected to result in a Material Adverse Effect.

 

(d) As of the date of this Agreement, the authorized shares of capital stock of the Company consist of 300,000,000 shares of Common Stock and 50,000,000 shares of preferred stock. As of June 30, 2018, (i) the total number of outstanding shares of Common Stock was 16,942,470, the total number of shares of Common Stock issuable pursuant to outstanding options and other rights to acquire Common Stock was 1,928,944 and the total number of shares of Common Stock maintained for future issuance under the Company’s Benefit Plans (exclusive of outstanding options and other rights to acquire Common Stock) was 901,449 and (ii) no shares of preferred stock or options or rights to acquire preferred stock were outstanding. Since June 30, 2018 through the date hereof, (i) the Company has only issued options or other rights to acquire Common Stock in the ordinary course of business consistent with past practice and (ii) the only shares of capital stock issued by the Company were pursuant to outstanding options and other rights to purchase Common Stock. All such issued and outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and were not issued in violation of or subject to any preemptive, co-sale or other rights to subscribe for or purchase securities. No dividends have been declared or paid with respect to the shares of Common Stock. There are no securities or instruments containing anti-dilution provisions that will be triggered by the issuance of the Shares.

 

4.2 Authorization.

 

 

4.3 Valid Issuance of the Shares.

 

4.4 No Conflict.

 

 

4.5 Application of Takeover Protections.

 

 

4.6 Consents.

 

 

4.7 SEC Filings; Financial Statements.

 

(a) The Company has filed all required registration statements, prospectuses, reports, schedules, forms, statements and other documents required by be filed by it with the SEC since December 31, 2015. The information contained or incorporated by reference in the SEC Filings was true and correct in all material respects as of the respective dates of the filing thereof with the SEC (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing); and, as of such respective dates, the SEC Filings did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All of the SEC Filings, as of their respective dates, complied as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder. All agreements that were required to be filed as exhibits to the SEC Filings under Item 601 of Regulation S-K to which the Company is a party, or the property or assets of the Company are is subject, have been filed as exhibits to the applicable SEC Filings, and other than as contemplated by this Agreement, the Company has not entered into any agreements that are required to be filed but for which the required deadline for filing has not yet occurred.

 

 

(b) The financial statements of the Company included in the SEC Filings (collectively, the “Financial Statements”) fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates indicated, and the results of its operations and cash flows for the periods therein specified, all in accordance with GAAP throughout the periods therein specified (except as otherwise noted therein, and in the case of quarterly financial statements, except for the absence of footnote disclosure and subject, in the case of interim periods, to normal year-end adjustments).

 

(c) Except as disclosed in the SEC Filings made since January 1, 2018, the Company and its Subsidiaries have not incurred any material liabilities that are of a nature that would be required to be disclosed on a balance sheet of the Company and its Subsidiaries or the footnotes thereto prepared in conformity with GAAP, other than liabilities incurred in the ordinary course of business since June 30, 2018.

 

(d) Except as set forth in the SEC Filings made since January 1, 2018, none of the officers or directors of the Company or any Subsidiary and, to the Knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any Contract or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000, other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company in the ordinary course of business and consistent with customary practices and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company.

 

4.8 Solvency.

 

 

4.9 Absence of Certain Changes.

 

 

4.10 Compliance with Laws and Agreements

 

 

(a) Each of the Company and its Subsidiaries is and has been, in material compliance with all applicable Law and Orders. The Company and its Subsidiaries are, and have at all times, conducted their respective businesses in material compliance with all applicable Law and Orders. Except as disclosed in Schedule 4.10(a) herein, the Company and its Subsidiaries possess all material Permits required to conduct their respective businesses. To the Knowledge of the Company, each such Permit is in full force and effect. Neither the Company nor any of its Subsidiaries has received any written communication from a Governmental Authority that alleges that its business has not been conducted in compliance in any material respect with any such applicable Law, Order or Permit or threatens to revoke, restrict, or limit any Permit necessary or advisable for the operation of such business. Neither the Company nor any of its Subsidiaries has received any written communication from any Governmental Authority that alleges that its VIE structure (or any aspect thereof) is not in compliance with applicable PRC Laws or alleging that it is a circumvention of the requirement for VIEs to obtain Permits, or threatening to revoke, restrict or limit any Permit for any Affiliate within the VIE structure that is necessary or advisable for the operation of such business.

 

(b) The Company and its Subsidiaries are and have been, in full compliance with all applicable Law concerning the exportation of any product, technology, technical data, and services, including applicable PRC Law and those Laws administered by the United States Department of Commerce, the United States Department of State, and the United States Department of Treasury. The Company and its Subsidiaries are in full compliance with United States and international economic and trade sanctions, including those administered by OFAC. Neither the Company nor its Subsidiaries nor, to the Company’s Knowledge, any director, officer, agent, employee or Affiliate of the Company or its Subsidiaries is currently subject to any sanctions administered by OFAC.

 

(c) None of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company, any beneficial owner of twenty percent (20%) or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event.

 

(d) Except as would not be material to the Company and its Subsidiaries, neither the Company nor its Subsidiaries is in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, (i) any indenture, loan or credit agreement or (ii) any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived).

 

(e) Neither the Company nor any of its Subsidiaries has agreed to a material restriction on its right to conduct its business freely with any other business, including a restriction on the geographic scope of its business or a restriction on the kind of business that it is entitled to carry on. Neither the Company nor any of its Subsidiaries is in breach of any provision of the PRC Anti-Monopoly Law.

 

4.11 No Disagreements with Accountants and Lawyers.

 

4.12 Intellectual Property.

 

(a) The Company (together with its Subsidiaries) solely and exclusively owns or has obtained valid and enforceable licenses for, free and clear of all liens or encumbrances, all Intellectual Property Rights necessary for its business as now conducted and currently proposed to be conducted, and the conduct of its current and proposed business does not infringe or misappropriate any Intellectual Property Rights of any third party. Neither the Company nor any of its Subsidiaries have received any written communications of any alleged infringement, misappropriation or breach of any Intellectual Property Rights of others. There are no outstanding options, licenses, agreements, claims, encumbrances or shared ownership of interests of any kind relating to anything referred to above in this Section 4.12 that is to any extent owned by or exclusively licensed to the Company or any of its Subsidiaries, nor is the Company or any of its Subsidiaries bound by or a party to any options, licenses or agreements of any kind with respect to the Intellectual Property Rights of any other person or entity, except, in any case, for standard end-user, object code, internal-use software license and support/maintenance agreements for software that is not and will not be incorporated into, or used to provide or develop, the Company’s products or services.

 

(b) Neither the Company nor any of its Subsidiaries is aware that any of its employees or independent contractors are obligated under any Contract or subject to any Order of any Governmental Authority, that would interfere with the use of such employee’s or independent contractor’s best efforts to promote the interest of the Company or that would conflict with the Company’s business as now conducted. Neither the execution nor delivery of this Agreement nor the conduct of the Company’s business as now conducted or as proposed to be conducted, will, to the Company’s Knowledge, conflict with or result in a breach of the terms, conditions or provisions of, or constitute a default under, any Contract under which any such employee or independent contractor is now obligated. The Company does not believe it is or will be necessary to use any Intellectual Property Rights of any of its employees made prior to their employment by the Company.

 

(c) The Company has not received any communications alleging that the Company has violated or, by conducting its business as proposed, would violate any Intellectual Property Rights of any other Person, and to the Company’s Knowledge there is no potential basis for such an allegation or of any reason to believe that such an allegation may be forthcoming. There are no Orders, settlement agreements or stipulations to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound that restricts the Company’s or any Subsidiary’s rights to use any Intellectual Property Rights in the operation of its business as currently conducted.

 

(d) Except as disclosed in SEC Filings made since January 1, 2018, there is no material pending or, to the Company’s Knowledge, threatened Action: (i) challenging the Company’s rights in or to any of the Company Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such Action; or (ii) challenging the validity, enforceability or scope of any Company Intellectual Property, and, to the Company’s Knowledge, there are no facts which would form a reasonable basis for any such Action.

 

(e) The Company has complied with the terms of each agreement pursuant to which Intellectual Property Rights have been licensed to the Company in all material respects, and all such agreements are in full force and effect.

 

(f) To the Company’s Knowledge, there are no material defects in any of the Patents included in the Company Intellectual Property. In particular, to the Company’s knowledge, all priority claims of the Company Intellectual Property are valid, and all claims in such Patents are entitled to the priority claims made. To the Company’s Knowledge, no granted Patents or pending Patent applications of the Company Intellectual Property violate the Paris Convention Treaty. To the Knowledge of the Company, all Patents of the Company Intellectual Property claim priority to all applicable prior filed and/or co-pending Patent applications.

 

 

(g) The Company has taken reasonable and customary actions to protect its rights in, and to prevent the unauthorized use and disclosure of, material trade secrets and confidential business information (including confidential ideas, research and development information, Know-How, formulas, compositions, technical data, designs, drawings, specifications, research records, records of inventions, test information, financial, marketing and business data, supplier lists and information, and business plans) owned by the Company, and, to the Knowledge of the Company, there has been no unauthorized use or disclosure of such material trade secrets and confidential business information.

 

4.13 Employee Benefits.

 

(a) Each Benefit Plan has been established and administered in all material respects in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and other applicable Laws. The Company and its Subsidiaries are in compliance in all material respects with all federal, state, local and foreign requirements regarding employment. As of the date hereof, there is no material labor dispute, strike or work stoppage against the Company or any of its Subsidiaries pending or, to the Knowledge of the Company, threatened which may interfere with the business activities of the Company or any of its Subsidiaries.

 

(b) Each stock option granted by the Company under the Company’s stock option plan was granted (i) in accordance with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market value of the Common Stock on the date such stock option would be considered granted under GAAP and applicable Law. No stock option granted under the Company’s stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects.

 

4.14 Taxes.

 

(a) The Company and its Subsidiaries have filed all federal, state, local and other Tax returns which it has been required to file which relate to or might in any way affect its assets and/or its business.  Each such return is true and accurate in all material respects.  The Company has timely paid all Taxes due with respect to the taxable periods covered by such Tax returns and all other Taxes (whether or not shown on any Tax return). There are no Liens with respect to Taxes on any of its assets (other than statutory Liens for current Taxes not yet due and payable).

 

(b) There are no pending or, to the Knowledge of the Company, threatened audits, investigations, disputes, notices of deficiency, claims or other Actions for or relating to any Taxes of the Company which would reasonably be expected to result in any Liens on its assets or result in any material liability of the Company for any Tax.

 

4.15 Environmental Laws.

 

4.16 Title.

 

 

4.17 Insurance.

 

 

4.18 Sarbanes-Oxley Act.

 

 

4.19 Regulatory Matters.

 

(a) The Company and its Subsidiaries are and have been in compliance in all material respects with all applicable rules, regulations, decrees, guidance, pronouncements, circulars, standards and policies of the FDA and the SAMR and any other applicable Regulatory Authority, including cGMP, cGLP, and cGCP (collectively, “Regulatory Requirements”).

 

(b) No IND filed by or on behalf of the Company with the FDA or SAMR has been terminated by the FDA or SAMR, and none of the FDA, the SAMR, or any other Regulatory Authority has recommended, commenced, or, to the Knowledge of the Company, threatened to initiate, any action to place a clinical hold order on, or otherwise delay or suspend, proposed or ongoing clinical investigations or trials conducted or proposed to be conducted by or on behalf of the Company and its Subsidiaries.

 

(c) All operations of the Company and its Subsidiaries and all of the manufacturing facilities and operations of the Company’s and its Subsidiaries’ suppliers of products and product candidates and the components thereof manufactured in or imported into the United States are in compliance with applicable Regulatory Requirements, and meet sanitation standards set by the Federal Food, Drug and Cosmetic Act of 1938, as amended. All of the operations of the Company and its Subsidiaries and all of the manufacturing facilities and operations of the Company’s and its Subsidiaries’ suppliers of products and product candidates and the components thereof manufactured in or imported into the PRC are in compliance with applicable SAMR Regulatory Requirements, and all the operations of the Company and its Subsidiaries and all of the manufacturing facilities and operations of the Company’s and its Subsidiaries’ suppliers of products and product candidates manufactured outside of the United States or the PRC are in compliance with applicable Regulatory Requirements in each jurisdiction in which the activity takes place.

 

 

(d) Except as would not be material to the Company and its Subsidiaries, (i) the Company and its Subsidiaries have obtained, in accordance with applicable Law, all Permits required under any applicable Law or required by the SAMR, FDA or any other applicable Regulatory Authority for the lawful operation of their respective businesses, as presently conducted, (ii) each such Permit is valid and in full force and effect, (iii) there are currently no Actions pending that seek the revocation, cancellation or adverse modification of any Permit; and (iv) to the Knowledge of the Company, there is no expectation nor awareness that any of the Permits will not be renewed or extended on expiry of the current term on the same terms, or will only be extended or renewed on less favorable terms than currently. All Regulatory Documentation has been maintained and retained in accordance with applicable Laws, and such Regulatory Documentation is in the possession or control of the Company and its Subsidiaries.

 

(e) The Company and its Subsidiaries are not subject to any unresolved notice, citation, suspension, revocation, warning, administrative proceeding, review or investigation or other Action by a Regulatory Authority that alleges or asserts that the Company or its Subsidiaries has violated any applicable Healthcare Laws, including an FDA Form 483, FDA warning letter, untitled letter, or similar notice of alleged non-compliance. There has not been a recall or market withdrawal or any product candidates by or on behalf of the Company or its Subsidiaries. The Company and its Subsidiaries have complied with all adverse event reporting requirements applicable to its product candidates.

 

(f) All material reports, documents, claims, permits and notices related to the conduct of the business of the Company and its Subsidiaries required to be filed, maintained or furnished to the FDA, the SAMR, any Regulatory Authority have been so filed, maintained or furnished, and all such reports, documents, claims, permits and notices were complete and accurate in all material respects on the date filed (or were promptly corrected in or supplemented by a subsequent filing).

 

(g) (i) Neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any of their respective officers, employees, agents, or distributors, or any other Person involved in development of any data included in any filing of the Company or its Subsidiaries submitted to a Regulatory Authority has been convicted of any crime or engaged in any conduct for which debarment is mandated or authorized by 21 U.S.C. § 335a, nor has any such Person been so debarred, and (ii) neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any of their respective officers, employees or agents, nor any other Person involved in the development of any data included in any filing of the Company or its Subsidiaries submitted to a Regulatory Authority has been convicted of any crime or engaged in any conduct for which such Person could be excluded from participating in the federal health care programs under 42 U.S.C. § 1320a-7, nor has any such Person been excluded from participation in such programs. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any of their respective directors, senior managers or legal representatives is prohibited under applicable PRC Laws from holding the current offices which they occupy within the Company or any of its Subsidiaries.

 

4.20 Ethical Practices.

 

 

(a) violated or is in violation of any applicable Anti-Corruption Law;

 

 

(b) made, undertaken, offered to make, promised to make or authorized the payment or giving of any bribe, rebate, payoff, influence payment, kickback or other payment or gift of money or anything of value (including meals or entertainment), to any officer, employee or ceremonial office holder of any government or instrumentality thereof, any political party or supra-national organization (such as the United Nations), any political candidate, any royal family member or any other person who is connected or associated personally with any of the foregoing, or to any non-governmental individual or entity, that is prohibited under any applicable Anti-Corruption Law or otherwise for the purpose of influencing any act or decision of such payee in his official capacity, inducing such payee to do or omit to do any act in violation of his lawful duty, securing any improper advantage or inducing such payee to use his influence with a government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality or to secure any improper advance or inducing such payee to enter into a commercial arrangement in violation of applicable Law (each, a “Prohibited Payment”);

 

(c) been subject to any investigation by any Governmental Authority with regard to any actual or alleged Prohibited Payment;

 

(d) used funds or other assets, or made any promise or undertaking in such regard, for the establishment or maintenance of a secret or unrecorded fund (a “Prohibited Fund”); or

 

(e) made any false or fictitious entries in any of the Company’s or any of its Subsidiaries’ books or records relating to any Prohibited Payment or Prohibited Fund.

 

4.21 Litigation; Legal Matters,

 

 

4.22 Data Privacy and Protection.

 

(a) The Company and its Subsidiaries have complied with each relevant requirement of all applicable Data Protection Laws.

 

(b) Neither the Company nor any of its Subsidiaries has received a notice or allegation from a Governmental Authority or any other Person: (i) alleging noncompliance with any Data Protection Laws; (ii) requiring it to change, cease using, block or delete any personal data; (iii) prohibiting the transfer of personal data to any place; or (iv) requiring it to take any other type of action with respect to the collection, use, transfer, or deletion of personal information.

 

(c) The Company and its Subsidiaries have obtained each necessary consent from data subjects and has complied with each necessary condition to permit it to process or use all relevant personal information in connection with their respective businesses and, where appropriate, any relevant purpose for which it would be necessary for Purchaser to use such personal information.

 

4.23 Controls and Procedures.

 

 

(a) The Company has established and maintains disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) that are effective in all material respects to ensure that material information relating to the Company, including CBMG Shanghai, is made known to its chief executive officer and chief financial officer by others within those entities. The Company’s certifying officers have evaluated the effectiveness of the Company’s controls and procedures as of December 31, 2017. The Company presented in its Annual Report on Form 10-K for the fiscal year ended December 31, 2017 the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of December 31, 2017. Since December 31, 2017, there have been no significant changes in the Company’s internal controls (as such term is defined in Item 307(b) of Regulation S-K under the Exchange Act) or, to the Company’s Knowledge, in other factors that could significantly affect the Company’s internal controls.

 

(b) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

 

4.24 Registration and Listing of Shares

 

 

4.25 Price of Common Stock.

 

 

4.26 Status.

 

(a) The Company is not, and immediately after receipt of payment for the Common Stock will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

 

(b) The Company meets the requirements of Rule 144(i)(2) under the Securities Act.

 

(c) The Company is not and has never been a U.S. real property holding corporation within the meaning of Section 897 of the Code, and the Company shall so certify upon Purchaser’s request.

 

 

4.27 General Solicitation; No Integration or Aggregation.

 

 

4.28 Brokers and Finders.

 

 

4.29 No Directed Selling Efforts.

 

 

4.30 Anti-Money Laundering.

 

 

4.31 Reliance by the Purchaser.

 

 

 

 

 

5.1 Organization and Qualification.

 

 

5.2 Authorization.

 

5.3 No Conflict.

 

 

5.4 No Registration of the Shares.

 

 

5.5 Sophistication.

 

 

5.6 Intent.

 

 

5.7 Investment Experience.

 

 

5.8 Independent Investigation.

 

5.9 Not a Broker-Dealer.

 

 

5.10 Not an Underwriter.

 

 

5.11 Reliance on Representations and Warranties.

 

 

5.12 Regulation S Exemption.

 

(a) The Purchaser is not (i) a U.S. person (as defined in Rule 902(k) under the Securities Act) (ii) an affiliate (as defined in Rule 501(b) under the Securities Act) of the Company, or (iii) acquiring the Shares for the account or benefit of a U.S. person.

 

(b) At the time of the origination of contact concerning this Agreement and the date of the execution and delivery of this Agreement, the Purchaser was outside of the United States.

 

(c) The Purchaser will not, during the period commencing on the date of issuance of the Shares and ending on the six (6)-month anniversary of such date, or such shorter period as may be permitted by Regulation S or other applicable securities law (the “Restricted Period”), offer, sell, pledge or otherwise transfer the Shares in the United States, or to a U.S. Person for the account or for the benefit of a U.S. Person, or otherwise in a manner that is not in compliance with Regulation S under the Securities Act.

 

(d) The Purchaser will, after expiration of the Restricted Period, offer, sell, pledge or otherwise transfer the Shares only pursuant to registration under the Securities Act or an available exemption therefrom and in accordance with all applicable state and foreign securities laws.

 

(e) The Purchaser was not in the United States engaged in, and prior to the expiration of the Restricted Period will not engage in, any short selling of or any hedging transaction with respect to the Shares, including any put, call or other option transaction, option writing or equity swap.

 

 

(f) Neither the Purchaser nor or any Person acting on its behalf has engaged in any directed selling efforts to a U.S. Person with respect to the Shares and the Purchaser and any Person acting on its behalf has complied and will comply with the “offering restrictions” requirements of Regulation S under the Securities Act.

 

(g) The transactions contemplated by this Agreement have not been pre-arranged with a Purchaser located in the United States or with a U.S. Person, and are not part of a plan or scheme to evade the registration requirements of the Securities Act.

 

(h) Neither the Purchaser nor any person acting on its behalf has undertaken or carried out any activity for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States, its territories or possessions, for any of the Shares. The Purchaser agrees not to cause any advertisement of the Shares to be published in any newspaper or periodical or posted in any public place and not to issue any circular relating to the Shares, except such advertisements that include the statements required by Regulation S under the Securities Act, and only offshore and not in the U.S. or its territories, and only in compliance with any local applicable securities laws.

 

5.13 Foreign Investors.

 

 

5.14 No Governmental Review.

 

 

5.15 Anti Money Laundering Law Compliance.

 

 

 

 

6.1 Legend.

 

(a) Each certificate representing the Shares shall be endorsed with the following legends, in addition to any other legend required to be placed thereon by applicable federal or state securities laws:

 

(b) No instrument evidencing the Shares, whether certificated or uncertificated, shall contain any legend (including the legend set forth in Section 6.1(a)): (i) while a registration statement covering the resale of such security is effective under the Securities Act, (ii) following any sale of such Shares pursuant to Rule 144, (iii) if such Shares are eligible for sale under Rule 144 without volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall cause its counsel to issue a legal opinion to the transfer agent if required by to effect the removal of the legend hereunder. The Company agrees that at such time as such legend is no longer required under this Section 6.1(b), it will, as soon as practicable but no later than three (3) Business Days following the delivery by the Purchaser to the Company or the transfer agent of an instrument representing Shares, as applicable, issued with a restrictive legend, deliver or cause to be delivered to such Purchaser a certificate or book-entry (at the election of the Purchaser, provided that absent instructions to the contrary, the default shall be book-entry) representing such Shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the transfer agent that enlarge the restrictions on transfer set forth in this Section 6.1. Instruments for Shares, whether certificated or uncertificated, subject to legend removal hereunder shall be transmitted by the transfer agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser.

 

6.2 The Purchaser’s Compliance.

 

 

6.3 Company’s Refusal to Register Transfer of Shares.

 

 

 

 

7.1 Further Assurances.

 

 

7.2 Confidentiality.

 

7.3 Publicity.

 

 

7.4 Registration.

 

 

7.5 Reports under the Exchange Act.

 

(a) make and keep available adequate current public information, as those terms are understood and defined in Rule 144;

 

(b) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act; and

 

(c) furnish to the Purchaser, forthwith upon request (i) to the extent accurate, a written statement by the Company that it has complied with the reporting requirements of Rule 144, the Securities Act, and the Exchange Act, or that it qualifies as a registrant whose securities may be resold pursuant to Form S-3; and (ii) such other information as may be reasonably requested in availing the Purchaser of any rule or regulation of the SEC that permits the selling of any such securities without registration.

 

 

 

8.1 Pre-Closing Termination

 

 

(a) This Agreement may be terminated at any time prior to the Closing:

 

(i) by either the Purchaser or the Company, if any Order restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement shall have become final and non-appealable;

 

(ii) by the Company, if the Purchaser shall have breached any of its representations, warranties, covenants or agreements contained in this Agreement such that a condition set forth in Section 3.3 cannot be satisfied;

 

(iii) by the Purchaser, if the Company shall have breached any of its representations, warranties, covenants or agreements contained in this Agreement such that a condition set forth in Section 3.4 cannot be satisfied; or

 

(iv) by the mutual written consent of the Company and the Purchaser.

 

(b) This Agreement shall terminate automatically, with no action by either party, upon the termination of the License and Collaboration Agreement prior to the Closing.

 

8.2 Effect of Pre-Closing Termination.

 

 

8.3 Post-Closing Termination.

 

8.4 Effect of Post-Closing Termination.

 

 

 

 

9.1 Survival.

 

 

9.2 Indemnification by the Company.

 

 

(a) any breach of any representation or warranty of CBMG in this Agreement as of the Closing Date;

 

(b) the failure of the Company to comply with any of its covenants, agreements, or other obligations in this Agreement; or

 

(c) enforcing the Purchaser Indemnified Parties’ indemnification rights provided for hereunder.

 

9.3 Indemnification by the Purchaser.

 

(a) any breach of any representation or warranty of the Purchaser in this Agreement as of the Closing Date;

 

(b) the failure of the Purchaser to comply with any of its covenants, agreements, or other obligations in this Agreement; or

 

(c) enforcing the Company Indemnified Parties’ indemnification rights provided for hereunder.

 

9.4 Indemnification Procedures.

 

(a) For the purposes of this Agreement, (i) the term “Indemnitee” shall refer to the Person or Persons indemnified, or entitled, or claiming to be entitled, to be indemnified, pursuant to the provisions of Section 9.2 or 9.3, as the case may be, and (ii) the term “Indemnitor” shall refer to the Person or Persons having the obligation, or which the Indemnitee purports has the obligation, to indemnify pursuant to such provisions.

 

(b) In the case of any claim for indemnification under this Agreement arising from a claim of a Third Party (including any Governmental Authority), an Indemnitee must give prompt written notice to the Indemnitor, no later than thirty (30) days after the Indemnitee’s receipt of notice of such claim; provided that the failure to give such notice will not relieve an Indemnitor of its indemnification obligations except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that the Indemnitor is actually and materially harmed thereby.

 

(c) The Indemnitor will have the right to defend and to direct the defense against any such claim in its name and at its expense, and with counsel selected by the Indemnitor, unless (i) the Indemnitor fails to acknowledge fully its obligations to the Indemnitee within fifteen (15) days after receiving notice of such Third Party claim or contests, in whole or in part, its indemnification obligations therefor, (ii) the applicable Third Party claimant is a Governmental Authority, (iii) there is a conflict of interest between the Indemnitee and the Indemnitor in the conduct of such defense, as determined by the Indemnitee’s counsel in its reasonable judgment, (iv) the applicable Third Party alleges claims of fraud, willful misconduct or intentional misrepresentation, or (v) such claim is criminal in nature, could reasonably be expected to lead to criminal proceedings, or seeks an injunction or other equitable relief against the Indemnitee, in which case, the Indemnitee shall have the right to employ separate counsel in any such proceeding and to participate in the defense thereof, and the fees and expenses of such counsel shall be at the expense of the Indemnitor. In any case not covered by subclauses (i) through (v) of the preceding sentence, the Indemnitee shall retain its right to participate in the defense of any claim with counsel selected by it, subject to the Indemnitor’s right to direct the defense, but the fees and disbursements of such counsel will be at the expense of the Indemnitee. If the Indemnitor elects, and is entitled, to defend such claim, it shall within fifteen (15) days (or sooner, if the nature of the claim so requires) notify the Indemnitee of its intent to do so, and the Indemnitee shall, at the request and expense of the Indemnitor, cooperate in the defense of such claim. If the Indemnitor elects not to, or is not entitled under this Section 9.4(c) to, defend such claim, fails to notify the Indemnitee of its election as herein provided or refuses to acknowledge or contests its obligation to indemnify under this Agreement, the Indemnitee may pay, compromise or defend such claim. The Indemnitor’s right to direct the defense will include the right to compromise or enter into an agreement settling any claim by a Third Party; provided that no such compromise or settlement will (i) obligate the Indemnitee to agree to any settlement that requires the taking or restriction of any action by the Indemnitee (other than the delivery of a release for such claim and customary confidentiality obligations) or provides for any relief (including competition restrictions) other than the payment of monetary damages not fully indemnified by the Indemnitor or (ii) fail to provide a full and final release of the Indemnitee from all liability on claims that are the subject matter of such proceeding with no admission of liability, in each case except with the prior written consent of the Indemnitee in its sole discretion.

 

 

(d) Any indemnification claim that does not arise from a Third Party claim must be asserted by a written notice to the Indemnitor. The Indemnitor will have a period of thirty (30) days after receipt of such notice within which to respond thereto. If the Indemnitor does not respond within such thirty (30) days, the Indemnitor will be deemed to have accepted responsibility for the Losses set forth in such notice and will have no further right to contest the validity of such notice. If the Indemnitor responds within such thirty (30) days after the receipt of the notice and rejects such claim in whole or in part, the Indemnitee will be free to pursue such remedies as may be available to it under this Agreement or applicable Law.

 

9.5 Limitations on Indemnification.

 

(a) No Indemnitor shall be liable for an indemnification claim made under Section 9.2(a) or Section 9.3(a) as the case may be: (i) for which a claim for indemnification is not asserted hereunder on or before the applicable Survival Date, (ii) to the extent Losses incurred by the Purchaser Indemnified Parties in the aggregate under Section 9.2(a) or by the Company Indemnified Parties in the aggregate under Section 9.3(a), as applicable, exceed an amount equal to the Purchase Price (the “Indemnification Cap”); and (iii) unless and until the Losses of the Purchaser Indemnified Parties collectively, or of the Company Indemnified Parties collectively, as applicable, exceed an aggregate amount equal to $200,000 (the “Basket”), in which case the applicable Indemnitor(s) shall be obligated to the Indemnitee(s) for the amount of such Losses of the Indemnitee(s) that exceed the Basket; provided, however, that the Basket and the Indemnification Cap shall not apply to (x) indemnification claims to the extent amounts are actually paid under insurance policies maintained by the Indemnitor (or any of its Affiliates), (y) indemnification claims based, in whole or in part, on fraud, willful misconduct or intentional misrepresentation and (z) indemnification claims based, in whole or in part, on the breach of any of the Special Reps as of the Closing Date.

 

(b) The Basket and the Indemnification Cap shall apply only to indemnification claims made under Section 9.2(a) or Section 9.3(a) and shall not affect or apply to any other indemnification claim made pursuant to this Agreement, including those asserted under any other clause of Section 9.2 or Section 9.3.

 

9.6 General Indemnification Provisions.

 

(a) The amount of any Losses suffered or incurred by any Indemnitee shall be reduced by the amount of any insurance proceeds or other cash receipts paid to the Indemnitee or any Affiliate thereof as a reimbursement with respect to such Losses (and no right of subrogation shall accrue to any insurer hereunder, except to the extent that such waiver of subrogation would prejudice any applicable insurance coverage), including any indemnification received by the Indemnitee or such Affiliate from an unrelated party with respect to such Losses, net of the costs of collection and any related anticipated future increases in insurance premiums resulting from such Loss or insurance payment.

 

(b) No investigation by the Purchaser or Knowledge of the Purchaser of a breach of a representation or warranty of the Company shall affect the representations and warranties of the Company or the recourse available to the Purchaser under any provision of this Agreement (including Article IX) with respect thereto.

 

(c) Notwithstanding anything in this Agreement to the contrary, for purposes of application of the indemnification provisions of this Article IX, the amount of any Loss arising from the breach of any representation, warranty, covenant, obligation or agreement contained in this Agreement shall be the entire amount of any Loss actually incurred by the respective Indemnitee as a result of such breach and not just that portion of the Loss that exceeds the relevant level of materiality, if any.

 

 

(d) Any indemnification obligation of an Indemnitor under this Article IX will be paid in cash within three (3) Business Days after the determination of such obligation in accordance with Section 9.4.

 

 

 

10.1 Expenses, Taxes, Etc.

 

 

10.2 Notices.

 

If to the Company, to:   Andy Chan 19925 Stevens Creek Blvd., Ste 100 Cupertino, CA 95014 Email: ***@***

with a copy (which will not constitute notice) to:   Ellenoff Grossman Schole LLP 1345 Avenue of the Americas New York, NY 10105 Attn: Sarah Williams, Esq Email: ***@***

If to the Purchaser, to:   Novartis Pharma AG Lichtstrasse 35 CH-4056 Basel, Switzerland Attn: Global Head M&A & BD&L Email: ***@***   and   Novartis Pharmaceuticals Corporation 59 Route 10 East Hanover, New Jersey 07936 Attn: VP General Counsel OncologyEmail: ***@***   and   Novartis Pharmaceuticals Corporation 59 Route 10 East Hanover, New Jersey 07936Attn: VP - Global Head Oncology BD&LEmail: ***@***

with a copy (which will not constitute notice) to: Hogan Lovells US LLP875 Avenue of the AmericasNew York, NY 10022Attn: Adam H. GoldenEmail: ***@***

10.3 Interpretation.

 

 

10.4 Conflict Between Agreements.

 

 

10.5 Severability.

 

 

10.6 No Third-Party Beneficiaries

 

 

10.7 Assignment

 

 

10.8 Amendment; Waiver

 

 

10.9 Remedies; Specific Performance

 

10.10 Mutual Drafting

 

 

10.11 Governing Law

 

 

10.12 Arbitration

 

(a) Any claim, dispute, or controversy of whatever nature arising among the Parties out of or relating to this Agreement, including any action or claim based on tort, contract, or statute (including any claims of breach or violation of statutory or common law protections from discrimination, harassment and hostile working environment), or concerning the interpretation, effect, termination, validity, performance, or breach of this Agreement (each, an “Arbitration Claim”), shall be resolved by final and binding arbitration before a panel of three (3) arbitrators (collectively, the “Arbitrators”). One (1) Arbitrator shall be chosen by the Company and one (1) Arbitrator shall be chosen by Purchaser, in each case, within fifteen (15) days from the notice of initiation of arbitration. The third (3rd) Arbitrator shall be chosen by mutual agreement of the Arbitrator chosen by the Company and the Arbitrator chosen by Purchaser within fifteen (15) days of the date that the last of such Arbitrators was appointed; provided, that if the third (3rd) Arbitrator is not chosen within such fifteen (15)-day period, it shall be chosen by the Administrator. The arbitration shall be administered by the International Chamber of Commerce (the “Administrator”) in accordance with its then-existing arbitration rules or procedures regarding commercial or business disputes in force at the time the Arbitration Claim is submitted. The arbitration shall be held in New York, New York, United States of America. The Arbitrators shall be instructed by the Parties to complete the arbitration within ninety (90) days after selection of the third (3rd) Arbitrator.

 

(b) The Arbitrators shall, within fifteen (15) days after the conclusion of the arbitration hearing, issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including any injunctive or equitable relief and the calculation of any damages awarded. The decision or award rendered by the Arbitrators shall be final and non-appealable, and judgment may be entered upon it in accordance with Applicable Law in any court of competent jurisdiction. The Arbitrators shall be authorized to award compensatory damages, but shall not be authorized to reform, modify, or materially change this Agreement or any other agreements contemplated hereunder.

 

 

(c) Each Party shall bear its own attorneys’ fees, costs, and disbursements arising out of the arbitration and the costs of the Arbitrator selected by it, and shall pay an equal share of the fees and costs of the third (3rd) Arbitrator and the Administrator; provided, however, that the Arbitrators shall be authorized to determine whether a Party is the prevailing Party, and, if so, to award to that prevailing Party reimbursement for its reasonable attorneys’ fees, costs, and disbursements (including, for example, expert witness fees and expenses, photocopy charges, travel expenses, etc.), or the fees and costs of the Administrator and the Arbitrators.

 

(d) Nothing contained in this Agreement shall deny any Party the right to seek specific performance or injunctive or other equitable relief in accordance with Section 10.9.

 

10.13 Consent to Jurisdiction; Waivers.

 

 

10.14 WAIVER OF TRIAL BY JURY.

 

 

10.15 Counterparts.

 

 

10.16 Entire Agreement.