SECRETARY'S/DIRECTOR'S CERTIFICATE OF MERIDIAN BIO THERAPEUTICS LIMITED
October 20, 2023
This Secretary's/Director's Certificate (this "Certificate") is delivered by the undersigned in connection with that certain Exclusive License Agreement, dated as of October 2, 2023 (as amended, supplemented, or otherwise modified from time to time, the "License Agreement"), by and between Penterra Pharmaceuticals Corp., a corporation organized and existing under the laws of the State of Delaware ("Penterra" or the "Licensor"), and Meridian Bio Therapeutics Limited, a company incorporated and existing under the laws of the Hong Kong Special Administrative Region of the People's Republic of China ("Meridian," the "Licensee," or the "Company").
This Certificate is delivered pursuant to Section 8.2(d) of the License Agreement, which requires, as a condition to the occurrence of the Effective Date and the consummation of the closing deliverables contemplated thereby, the delivery by the Company to the Licensor of a certificate of an authorized officer or director of the Company certifying, among other things, (i) the incumbency and authority of the officers and directors executing the License Agreement and each ancillary agreement on behalf of the Company, (ii) the due adoption and continuing effectiveness of resolutions of the Board of Directors of the Company authorizing the transactions contemplated by the License Agreement, and (iii) the authenticity and continuing effectiveness of the organizational documents of the Company.
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the License Agreement.
1. CERTIFYING PARTY IDENTIFICATION
The undersigned, David R. Cheung, Esq., hereby certifies that he is the duly appointed General Counsel and an authorized director and officer of Meridian Bio Therapeutics Limited, a company incorporated under the laws of the Hong Kong Special Administrative Region of the People's Republic of China, with Company Registration Number 2847631 as recorded in the Hong Kong Companies Registry.
The registered office of the Company is located at:
18/F, Blossom Tower 88 Queen's Road Central Hong Kong SAR
The undersigned is duly authorized to execute and deliver this Certificate on behalf of the Company in connection with the License Agreement and the transactions contemplated thereby, including, without limitation, the following agreements and instruments (each, an "Ancillary Agreement" and, collectively, the "Ancillary Agreements"):
(a) the Escrow Agreement, dated as of October 20, 2023, by and among Penterra Pharmaceuticals Corp., Meridian Bio Therapeutics Limited, and Velthorn National Bank, N.A., as escrow agent (the "Escrow Agreement");
(b) the Supply Agreement, dated as of October 20, 2023, by and between Penterra Pharmaceuticals Corp. and Meridian Bio Therapeutics Limited (the "Supply Agreement");
(c) the Technology Transfer Agreement, dated as of October 20, 2023, by and between Penterra Pharmaceuticals Corp. and Meridian Bio Therapeutics Limited (the "Technology Transfer Agreement");
(d) the Trademark License Agreement, dated as of October 20, 2023, by and between Penterra Pharmaceuticals Corp. and Meridian Bio Therapeutics Limited, relating to the PENTECLAR mark and associated trademarks (the "Trademark License Agreement"); and
(e) the Pharmacovigilance Agreement, dated as of October 20, 2023, by and between Penterra Pharmaceuticals Corp. and Meridian Bio Therapeutics Limited (the "Pharmacovigilance Agreement," and together with the License Agreement and the other Ancillary Agreements, the "Transaction Documents").
The undersigned makes the certifications set forth herein based upon his personal knowledge and review of the books and records of the Company and in his official capacity as General Counsel and authorized director of the Company, and not in any individual or personal capacity whatsoever. No personal liability shall attach to the undersigned by reason of the certifications made herein.
2. CERTIFICATION OF BOARD RESOLUTIONS
The undersigned hereby certifies that attached hereto as Exhibit A is a true, correct, and complete copy of the resolutions (the "Resolutions") duly adopted by the Board of Directors of the Company (the "Board") at a meeting of the Board duly called and held on September 28, 2023, at which a quorum was present and acting throughout the entirety of such meeting in accordance with the Articles of Association of the Company and the applicable provisions of the Companies Ordinance (Cap. 622, Laws of Hong Kong) (the "Companies Ordinance").
The meeting at which the Resolutions were adopted was duly convened upon proper notice given to all directors of the Company in accordance with Article 43 of the Articles of Association of the Company. All directors entitled to notice of such meeting received due and timely notice thereof, and a quorum consisting of not fewer than three (3) directors was present throughout the proceedings of such meeting. The Resolutions were adopted by the unanimous vote of all directors present and voting at such meeting, which vote constituted the requisite vote of the directors required under the Articles of Association of the Company and applicable law.
The Resolutions authorized and approved the following matters:
(a) License Agreement. The execution, delivery, and performance by the Company of the License Agreement with Penterra Pharmaceuticals Corp. for the exclusive license of compound PPC-4187 (Penteracitinib), a selective JAK1 inhibitor, in the Asia-Pacific Territory (as defined in the License Agreement, comprising the People's Republic of China (including Hong Kong SAR and Macau SAR), Japan, South Korea, Australia, New Zealand, Taiwan, Singapore, Malaysia, Thailand, the Philippines, Indonesia, and Vietnam), together with all rights, obligations, and undertakings of the Company arising thereunder.
(b) Ancillary Agreements. The execution, delivery, and performance by the Company of each of the Ancillary Agreements, including without limitation: (i) the Escrow Agreement with Velthorn National Bank, N.A. (with its principal office at 399 Park Avenue, New York, New York 10043) serving as escrow agent; (ii) the Supply Agreement, pursuant to which Penterra will supply clinical and commercial quantities of PPC-4187 drug substance and drug product to the Company; (iii) the Technology Transfer Agreement, pursuant to which Penterra will transfer to the Company certain know-how, manufacturing processes, analytical methods, and regulatory data relating to PPC-4187; (iv) the Trademark License Agreement, pursuant to which Penterra will grant to the Company the right to use the PENTECLAR mark and associated trademarks in the Asia-Pacific Territory; and (v) the Pharmacovigilance Agreement, establishing the parties' respective responsibilities for adverse event reporting, signal detection, and safety data exchange with respect to PPC-4187.
(c) Upfront Payment. The funding of the upfront license payment in the amount of United States Dollars Eighteen Million (US$18,000,000) into the escrow account established and maintained by Velthorn National Bank, N.A. pursuant to the terms of the Escrow Agreement, which amount shall be released to Penterra upon the satisfaction of the release conditions set forth therein.
(d) Milestone and Royalty Payments. The payment by the Company to Penterra of the following amounts as and when they become due and payable under the License Agreement:
(i) development milestone payments in an aggregate amount of up to United States Dollars Thirty-Two Million (US$32,000,000);
(ii) regulatory milestone payments in an aggregate amount of up to United States Dollars Twenty-Five Million (US$25,000,000);
(iii) commercial milestone payments in an aggregate amount of up to United States Dollars Forty-Five Million (US$45,000,000);
(iv) tiered royalty payments on Net Sales of Licensed Products in the Asia-Pacific Territory, calculated in accordance with the royalty schedule set forth in Section 6.5 of the License Agreement; and
(v) all other amounts payable under the License Agreement and the Ancillary Agreements,
in an aggregate amount (exclusive of royalties) of up to United States Dollars One Hundred Twenty Million (US$120,000,000).
(e) Authorization of Officers and Directors. The authorization of each of the following officers and directors of the Company to execute the License Agreement and all Ancillary Agreements on behalf of the Company, any two of such persons acting jointly, or any one of such persons acting individually where specifically designated in the Resolutions:
• Angela C.Y. Fong, Chief Executive Officer;
• David R. Cheung, Esq., General Counsel;
• Patrick S.H. Kwok, Chief Financial Officer; and
• Dr. Henry W.L. Tsang, Chairman and Founder.
(f) Further Actions. The authorization of such officers and directors of the Company to take all further actions and to execute and deliver all further agreements, instruments, certificates, and documents as may be necessary, appropriate, or desirable to consummate the transactions contemplated by the License Agreement and the Ancillary Agreements, including without limitation the filing of any governmental or regulatory applications, the provision of any notices, and the making of any representations and warranties, in each case on behalf of and in the name of the Company.
The undersigned further certifies that the Resolutions have not been amended, modified, rescinded, superseded, or revoked in any respect and remain in full force and effect as of the date hereof without any change or modification whatsoever. No other resolutions have been adopted by the Board that would conflict with, limit, or otherwise restrict the authority conferred by the Resolutions.
3. INCUMBENCY CERTIFICATE
The undersigned hereby certifies that each of the following persons is, as of the date hereof, a duly elected or appointed officer or director (as applicable) of the Company, holding the office or title set forth opposite such person's name below, and that the signature set forth opposite each such person's name below is the true and genuine signature of such person:
Each of the persons listed above is duly authorized to execute, deliver, and perform on behalf of the Company the License Agreement, the Escrow Agreement, and/or any Ancillary Agreement, in each case as specified in and to the extent set forth in the Resolutions. None of the foregoing persons has been removed from office, and no proceedings are pending or contemplated for the removal of any such person from office.
The undersigned further certifies that the License Agreement was executed on behalf of the Company on October 2, 2023 (the "Signing Date") by the following authorized signatories:
(a) Angela C.Y. Fong, Chief Executive Officer; and
(b) David R. Cheung, Esq., General Counsel.
Each of the Ancillary Agreements was or will be executed on behalf of the Company on October 20, 2023 (the "Effective Date") by one or both of the foregoing authorized signatories, acting in accordance with the authority conferred by the Resolutions.
4. CERTIFICATION OF ORGANIZATIONAL DOCUMENTS
The undersigned hereby certifies the following with respect to the organizational documents of the Company:
(a) Certificate of Incorporation. Attached hereto as Exhibit B is a true, correct, and complete copy of the Certificate of Incorporation (Form NNC1) of the Company, as issued by the Registrar of Companies of the Hong Kong Companies Registry on March 15, 2016, together with all Certificates of Change of Company Name (if any) and Certificates of Incorporation on Change of Name issued by the Hong Kong Companies Registry with respect to the Company. The Certificate of Incorporation as attached hereto is currently in full force and effect and has not been amended, supplemented, or otherwise modified since March 15, 2016.
(b) Articles of Association. Attached hereto as Exhibit C is a true, correct, and complete copy of the Articles of Association of the Company, as adopted on March 15, 2016, and last amended by special resolution of the shareholders of the Company on June 22, 2022. The Articles of Association as attached hereto are currently in full force and effect and have not been further amended, supplemented, restated, or otherwise modified since June 22, 2022.
The organizational documents described in clauses (a) and (b) above constitute the complete and current organizational documents of the Company. No proceedings have been commenced or are contemplated by the Company or any of its shareholders, directors, or officers for the amendment, restatement, or modification of any such organizational documents.
5. GOOD STANDING / EXISTING STATUS
The undersigned hereby certifies that:
(a) The Company is duly incorporated and validly existing as a limited company under and by virtue of the laws of the Hong Kong Special Administrative Region of the People's Republic of China, including the Companies Ordinance (Cap. 622, Laws of Hong Kong).
(b) The Company has not been dissolved, wound up, deregistered, or struck off the register maintained by the Registrar of Companies of the Hong Kong Companies Registry. No petition for the winding up of the Company has been presented, no order for the winding up of the Company has been made, and no resolution for the voluntary winding up of the Company has been passed.
(c) Company Registration Number 2847631, as assigned to the Company by the Hong Kong Companies Registry, remains active and in good standing (as such concept is understood in Hong Kong, the Company's status on the register of the Hong Kong Companies Registry is "Active — Live"). The Company has complied with its obligation to file annual returns and all other documents required to be filed with the Hong Kong Companies Registry, and all such filings are current as of the date hereof.
(d) The Company has the full corporate power and authority to own, lease, and operate its properties and assets and to carry on its business as presently conducted, and to execute, deliver, and perform its obligations under the Transaction Documents.
6. NO CONFLICTS / NO PROCEEDINGS
The undersigned hereby certifies that:
(a) No Conflicts. The execution, delivery, and performance by the Company of the License Agreement and each of the Ancillary Agreements, and the consummation of the transactions contemplated thereby (including the payment of the upfront license fee, milestone payments, royalties, and all other amounts due thereunder), do not and will not:
(i) violate, conflict with, or result in a breach of any provision of the Certificate of Incorporation or the Articles of Association of the Company;
(ii) violate, conflict with, or result in a breach of any applicable law, statute, regulation, rule, order, judgment, injunction, or decree of any court, governmental authority, or regulatory body of competent jurisdiction that is binding on the Company or any of its properties or assets, including without limitation the Competition Ordinance (Cap. 619, Laws of Hong Kong), the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong), the United States Foreign Corrupt Practices Act, and any applicable export control, sanctions, or anti-money laundering laws; or
(iii) result in a breach of, constitute a default (or an event which, with the giving of notice or lapse of time or both, would constitute a default) under, give rise to any right of termination, cancellation, or acceleration under, or require the consent of any third party under, any material agreement, indenture, mortgage, loan agreement, credit facility, note, bond, lease, license, or other instrument or obligation to which the Company is a party or by which the Company or any of its properties or assets is bound.
(b) No Proceedings. To the knowledge of the undersigned, after due inquiry, there are no legal proceedings, actions, suits, claims, arbitrations, or governmental investigations or inquiries pending or, to the knowledge of the undersigned, threatened against the Company or any of its officers, directors, or subsidiaries, at law or in equity, before or by any court, arbitral tribunal, governmental authority, or regulatory body, that would reasonably be expected to:
(i) prevent, materially delay, or materially impair the ability of the Company to consummate the transactions contemplated by the License Agreement or any Ancillary Agreement;
(ii) enjoin, restrain, or prohibit the Company from executing, delivering, or performing any of the Transaction Documents; or
(iii) result in a material adverse effect on the business, financial condition, properties, assets, or operations of the Company.
7. SUBSIDIARY AUTHORIZATIONS
The undersigned further certifies that, to the extent required by the License Agreement (including Sections 2.4 and 14.6 thereof), the appropriate corporate, partnership, or other entity-level authorizations have been obtained, or will be obtained prior to or contemporaneously with the commencement of any activities by such subsidiary under the License Agreement or any Ancillary Agreement, from each of the following subsidiaries of the Company in connection with their respective roles, rights, and obligations under the License Agreement and the Ancillary Agreements:
(a) Meridian Pharma (Shanghai) Co., Ltd., a wholly foreign-owned enterprise (WFOE) organized under the laws of the People's Republic of China, with its registered office at Suite 2301, Jing'an International Center, 899 Nanjing West Road, Shanghai 200041, PRC, which serves as the Company's principal operating subsidiary for development, regulatory, and commercialization activities in the PRC;
(b) Meridian Japan K.K., a kabushiki kaisha organized under the laws of Japan, with its registered office at 15F, Marunouchi Park Building, 2-6-1 Marunouchi, Chiyoda-ku, Tokyo 100-6915, Japan, which serves as the Company's principal operating subsidiary for development, regulatory, and commercialization activities in Japan;
(c) Meridian Korea Inc., a corporation organized under the laws of the Republic of Korea, with its registered office at 12F, Gangnam Finance Center, 152 Teheran-ro, Gangnam-gu, Seoul 06236, Republic of Korea, which serves as the Company's principal operating subsidiary for development, regulatory, and commercialization activities in South Korea; and
(d) Meridian Bio Australia Pty Ltd, a proprietary limited company organized under the laws of the Commonwealth of Australia, with its registered office at Level 28, 85 Castlereagh Street, Sydney, NSW 2000, Australia, which serves as the Company's principal operating subsidiary for development, regulatory, and commercialization activities in Australia and New Zealand.
Each such subsidiary will, to the extent applicable, execute such further agreements, instruments, and documents (including sub-license agreements and letters of accession) as may be necessary or desirable to give effect to the rights and obligations contemplated by the License Agreement and the Ancillary Agreements.
8. REPRESENTATIONS AND RELIANCE
The undersigned is executing and delivering this Certificate in connection with the closing (the "Closing") of the transactions contemplated by the License Agreement. The License Agreement was executed by Penterra and Meridian on October 2, 2023 (the "Signing Date"). The Effective Date of the License Agreement is October 20, 2023, being the date on which all conditions to the Closing set forth in Article VIII of the License Agreement have been duly satisfied or, where permissible, waived by the party entitled to the benefit thereof.
This Certificate, and the certifications, representations, and statements contained herein, may be relied upon by each of the following persons and entities without independent investigation or inquiry:
(a) Penterra Pharmaceuticals Corp., the Licensor under the License Agreement, and its successors and permitted assigns;
(b) Calderwood & Harkness LLP, counsel to Penterra Pharmaceuticals Corp., with offices at 600 Lexington Avenue, 30th Floor, New York, New York 10022 (Attention: Margaret S. Callahan, Esq.), in connection with the rendering of any legal opinions, the provision of legal advice, or any other matter relating to the transactions contemplated by the License Agreement; and
(c) Velthorn National Bank, N.A., in its capacity as escrow agent under the Escrow Agreement, with its principal office at 399 Park Avenue, New York, New York 10043 (Attention: Corporate Trust Department), in connection with the administration of the escrow account and the release of the upfront license payment and any other amounts held in escrow pursuant to the terms of the Escrow Agreement.
The undersigned acknowledges that the foregoing persons and entities are entering into the Transaction Documents or performing services in connection therewith in reliance upon the certifications, representations, and statements set forth in this Certificate. This Certificate shall inure to the benefit of such persons and entities and their respective successors and assigns.
9. EXHIBITS
The following exhibits are attached hereto and incorporated herein by reference:
Exhibit A: Certified Copy of the Resolutions of the Board of Directors of Meridian Bio Therapeutics Limited, adopted on September 28, 2023, authorizing the License Agreement and the Ancillary Agreements.
Exhibit B: Certified Copy of the Certificate of Incorporation of Meridian Bio Therapeutics Limited, as issued by the Hong Kong Companies Registry (Company Registration No. 2847631).
Exhibit C: Certified Copy of the Articles of Association of Meridian Bio Therapeutics Limited, as last amended on June 22, 2022.
[Remainder of this page intentionally left blank. Signature pages follow.]
SIGNATURE PAGE TO SECRETARY'S/DIRECTOR'S CERTIFICATE OF MERIDIAN BIO THERAPEUTICS LIMITED
IN WITNESS WHEREOF, the undersigned has executed and delivered this Secretary's/Director's Certificate as of the date first written above.
MERIDIAN BIO THERAPEUTICS LIMITED
By: ________
Name: David R. Cheung, Esq.
Title: General Counsel
Date: October 20, 2023
Address:
18/F, Blossom Tower 88 Queen's Road Central Hong Kong SAR
Hong Kong Company Registration No.: 2847631
COUNTER-CERTIFICATION OF INCUMBENCY AND AUTHORITY OF DAVID R. CHEUNG, ESQ.
The undersigned, Angela C.Y. Fong, Chief Executive Officer of Meridian Bio Therapeutics Limited, hereby certifies, in her capacity as Chief Executive Officer and not in any individual capacity, that David R. Cheung, Esq. is the duly appointed General Counsel and an authorized director of Meridian Bio Therapeutics Limited, that Mr. Cheung holds such office as of the date hereof, that he is duly authorized to execute and deliver the foregoing Secretary's/Director's Certificate on behalf of the Company, and that the signature of David R. Cheung, Esq. appearing on such Certificate is his true and genuine signature.
MERIDIAN BIO THERAPEUTICS LIMITED
By: ________
Name: Angela C.Y. Fong
Title: Chief Executive Officer
Date: October 20, 2023
Exhibits A, B, and C follow this page.
EXHIBIT A
CERTIFIED COPY OF BOARD RESOLUTIONS OF MERIDIAN BIO THERAPEUTICS LIMITED
Adopted September 28, 2023
[Certified copy of Board Resolutions attached hereto]
EXHIBIT B
CERTIFIED COPY OF CERTIFICATE OF INCORPORATION MERIDIAN BIO THERAPEUTICS LIMITED
Hong Kong Companies Registry — Company Registration No. 2847631
[Certified copy of Certificate of Incorporation attached hereto]
EXHIBIT C
CERTIFIED COPY OF ARTICLES OF ASSOCIATION MERIDIAN BIO THERAPEUTICS LIMITED
As last amended June 22, 2022
[Certified copy of Articles of Association attached hereto]
| Name | Title / Office | Signature |
| Dr. Henry W.L. Tsang | Chairman & Founder | ________ |
| Angela C.Y. Fong | Chief Executive Officer | ________ |
| Dr. Kenji Morimoto | Chief Medical Officer | ________ |
| David R. Cheung, Esq. | General Counsel | ________ |
| Patrick S.H. Kwok | Chief Financial Officer | ________ |