EXHIBIT 4.1
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into as
of August 17, 2005 (the "Effective Date"), by and between GERON CORPORATION, a
Delaware corporation having its principal place of business at 000
Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000 ("Geron"), and TRANSGENOMIC,
INC., a Delaware corporation having its principal place of business at 00000
Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000 ("Transgenomic").
X. Xxxxx and Transgenomic are the parties to that certain Supply
Agreement dated as of June 15, 2002 (the "Supply Agreement"),
and related Addendum Agreements ("Addendum Agreement") under
which Geron has agreed to purchase certain products from
Transgenomic and Transgenomic has agreed to supply such
products to Geron on the terms set forth therein.
B. Pursuant to Addendum Agreement No. 9 dated as of April 6,
2005, Addendum Agreement No. 10 dated as of April 6, 2005, and
the Second Amendment to Addendum Agreement No. 10 dated as of
August 17, 2005 (collectively, the foregoing are referred to
herein as the "Addenda"), Geron may pay the purchase price of
products by delivery of shares of Geron's Common Stock (the
"Shares").
THE PARTIES AGREE AS FOLLOWS:
1. ISSUANCE OF SHARES; ADJUSTMENTS.
1.1 As payment of (a) the Second Installment specified in Addendum
Agreement No. 9 and Addendum Agreement No. 10 and (b) the
Installment specified in the Second Amendment to Addendum
Agreement No. 10, Geron will issue and deliver certificates for
151,550 shares. Upon issuance and delivery of the certificate(s)
for the Shares, all Shares shall be duly authorized and validly
issued and represent fully paid shares of Geron's Common Stock.
2. CLOSING; DELIVERY.
2.1 The consummation of the transaction contemplated by this Agreement
(a "Closing") shall be held at such time and place as is mutually
agreed upon between the parties, but in any event no later than
three (3) business days after the Effective Date of this Agreement
(the "Closing Date"). At the Closing, Geron shall deliver to
Transgenomic one or more certificates representing all of the
Shares, which Shares shall be issued in the name of Transgenomic
or its designee and in such denominations as Transgenomic shall
specify.
2.2 Geron's obligations to issue and deliver the stock certificate(s)
representing the Shares to Transgenomic at the Closing shall be
subject to the following conditions, which may be waived by Geron:
2.2.1 the covenants and obligations that Transgenomic is
required to perform or to comply with pursuant to this
Agreement, at or prior to the Closing, must have been duly
performed and complied with in all material respects; and
2.2.2 the representations and warranties made by Transgenomic
herein shall be true and correct in all material respects
as of the Closing Date.
2.3 Transgenomic's obligation to accept delivery of the stock
certificate(s) representing the Shares at the Closing shall be
subject to the following conditions, any one or more of which may
be waived by Transgenomic:
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2.3.1 the covenants and obligations that Geron is required to
perform or to comply with pursuant to this Agreement and
under the Common Stock Purchase Agreements specified in
Addendum Agreement Nos. 9 and 10 between the parties
hereto dated April 6, 2005, at or prior to the Closing,
must have been duly performed and complied with in all
material respects;
2.3.2 Geron shall have available under its Certificate of
Incorporation sufficient authorized shares of Common Stock
to issue the Shares to Transgenomic; and
2.3.3 the representation and warranties made by the Geron herein
shall be true and correct in all material respects as of
any Closing Date.
3. RESTRICTIONS ON RESALE OF SHARES.
3.1 Legends. Transgenomic understands and acknowledges that the Shares
are not registered under the Securities Act of 1933 (the "Act"),
and that under the Act and other applicable laws Transgenomic may
be required to hold such Shares for an indefinite period of time.
Each stock certificate representing Shares shall bear the
following legends:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). ANY TRANSFER
OF SUCH SECURITIES SHALL BE INVALID UNLESS A REGISTRATION
STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH TRANSFER OR, IN
THE OPINION OF COUNSEL REASONABLY ACCEPTABLE TO GERON, SUCH
REGISTRATION IS UNNECESSARY FOR SUCH TRANSFER TO COMPLY WITH THE
ACT. THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE TERMS OF
THE COMMON STOCK PURCHASE AGREEMENT, DATED AUGUST 17, 2005. A COPY
OF THE AGREEMENT CAN BE OBTAINED FROM THE SECRETARY OF GERON."
3.2 Limits on Sales. Transgenomic agrees that if it decides to resell
some or all of the Shares, it will do so only in an appropriate
manner based upon whether the shares are registered or
unregistered, i.e., on the Nasdaq National Market or in a Rule
144A compliant transaction. Subject to the foregoing restrictions,
Transgenomic may sell or resell the Shares in any lot size, or at
any volume, desired by Transgenomic.
4. REGISTRATION RIGHTS
4.1 Geron agrees to make commercially reasonable best efforts to file
with the Securities and Exchange Commission (the "Commission")
within five (5) business days after the Closing Date, a
registration statement under the Act (the "Registration
Statement"), on Form S-3 or other appropriate form, so as to
permit a non-underwritten public offering and resale of the Shares
under the Act by Transgenomic. Geron agrees to diligently pursue
making the Registration Statement effective. Geron will notify
Transgenomic of the effectiveness of the Registration Statement
within one (1) business day of receiving notice from the
Commission.
4.2 Geron will maintain the Registration Statement and any
post-effective amendment thereto filed under this Section 4
effective under the Act until the earliest of (i) the date that
none of the Shares covered by such Registration Statement are
issued and outstanding, (ii) the date that all of the Shares have
been sold pursuant to such Registration Statement, (iii) the date
Transgenomic receives an opinion of counsel to Geron, which
counsel shall be reasonably acceptable to Transgenomic, that the
Shares may be sold under the provisions of Rule 144 without
limitation as to volume, (iv) the date that all Shares have been
otherwise transferred to persons who may trade such shares without
restriction under the Act, and Geron has delivered a new
certificate or other evidence of ownership for such securities not
bearing a restrictive legend, or (v) the date all Shares may be
sold at any time, without volume or manner of sale limitations
pursuant to Rule 144(k) or any similar provision then in effect
under the Act in the opinion of counsel to Geron, which counsel
shall be reasonably acceptable to Transgenomic.
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4.3 Geron, at its expense, shall furnish to Transgenomic with respect
to the Shares registered under the Registration Statement such
reasonable number of copies of the Registration Statement,
prospectuses and preliminary prospectuses in conformity with the
requirements of the Act and such other documents as Transgenomic
may reasonably request, in order to facilitate the public sale or
other disposition of all or any of the Shares by Transgenomic,
provided, however, that the obligation of Geron to deliver copies
of prospectuses or preliminary prospectuses to Transgenomic shall
be subject to the receipt by Geron of reasonable assurances from
Transgenomic that Transgenomic will comply with the applicable
provisions of the Act and of such other securities or blue sky
laws as may be applicable in connection with any use of such
prospectuses or preliminary prospectuses.
4.4 All fees, disbursements and out-of-pocket expenses and costs
incurred by Geron in connection with the preparation and filing of
the Registration Statement under Section 4.1 and in complying with
applicable securities and Blue Sky laws (including, without
limitation, all attorneys' fees of Geron) shall be borne by Geron.
Transgenomic shall bear the cost of fees and expenses of
Transgenomic's counsel.
4.5 Geron will advise Transgenomic promptly after it shall receive
notice or obtain knowledge of the issuance of any stop order by
the Commission delaying or suspending the effectiveness of the
Registration Statement or of the initiation of any proceeding for
that purpose, and Geron will use its commercially reasonable
efforts to prevent the issuance of any stop order or to obtain its
withdrawal at the earliest possible moment if such stop order
should be issued.
4.6 With a view to making available to Transgenomic the benefits of
Rule 144 (or its successor rule) and any other rule or regulation
of the Commission that may at the time permit Transgenomic to sell
the Shares to the public without registration, Geron covenants and
agrees to: (i) make and keep public information available, as
those terms are understood and defined in Rule 144, until the
earliest of (A) such date as all of the Shares may be resold
pursuant to Rule 144(k) or any other rule of similar effect or (B)
such date as all of the Shares shall have been resold; and (ii)
file with the Commission in a timely manner all reports and other
documents required of Geron under the Act and under the Exchange
Act of 1934, as amended.
4.7 Transgenomic will cooperate with Geron in all respects in
connection with this Agreement, including timely supplying all
information reasonably requested by Geron (which shall include all
information regarding Transgenomic and proposed manner of sale of
the Shares required to be disclosed in any Registration Statement)
and executing and returning all documents reasonably requested in
connection with the registration and sale of the Shares and
entering into and performing their obligations under any
underwriting agreement, if the offering is an underwritten
offering, in usual and customary form, with the managing
underwriter or underwriters of such underwritten offering. Nothing
in this Agreement shall obligate Transgenomic to consent to be
named as an underwriter in any Registration Statement.
5. INDEMNIFICATION.
5.1 Geron agrees to indemnify and hold harmless Transgenomic (and each
person, if any, who controls Transgenomic within the meaning of
Section 15 of the Act, and each officer and director of
Transgenomic) against any and all losses, claims, damages or
liabilities (or actions or proceedings in respect thereof), joint
or several, directly or indirectly based upon or arising out of
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any
preliminary prospectus, final prospectus or summary prospectus
contained therein or used in connection with the offering of the
Shares, or any amendment or supplement thereto, or
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(ii) any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and Geron will reimburse each such
indemnified party for any legal or any other expenses reasonably
incurred by them in connection with investigating, preparing,
pursuing or defending any such loss, claim, damage, liability,
action or proceeding, except insofar as any such loss, claim,
damage, liability, action, proceeding or expense (A) arises out of
or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration
Statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and
in conformity with written information furnished to Geron by
Transgenomic or such other person expressly for use in the
preparation thereof, (B) the failure of Transgenomic to comply
with its covenants and agreements contained in Sections 7.1 or
7.5.2 hereof or (C) any misstatement or omission in any prospectus
that is corrected in any subsequent prospectus that was delivered
to Transgenomic prior to the pertinent sale or sales by
Transgenomic. Such indemnity shall remain in full force and
effect, regardless of any investigation made by such indemnified
party and shall survive the transfer of the Shares by
Transgenomic.
5.2 Transgenomic agrees to indemnify and hold harmless Geron (and each
person, if any, who controls Geron within the meaning of Section
15 of the Act, each officer of Geron who signs the Registration
Statement and each director of Geron) from and against losses,
claims, damages or liabilities (or actions or proceedings in
respect thereof), joint or several, directly or indirectly based
upon or arising out of, (i) any failure of Transgenomic to comply
with the covenants and agreements contained in Sections 7.1 and
7.5.2 hereof or (ii) any untrue statement of a material fact
contained in the Registration Statement or any omission of a
material fact required to be stated in the Registration Statement
or necessary in order to make the statements in the Registration
Statement not misleading if such untrue statement or omission was
made in reliance upon and in conformity with written information
furnished to Geron by on behalf of Transgenomic specifically for
use in preparation of the Registration Statement; provided,
however, that Transgenomic shall not be liable in any such case
for (A) any untrue statement or omission in the Registration
Statement, prospectus, or other such document which statement is
corrected by Transgenomic and delivered to Geron prior to the sale
from which such loss occurred, (B) any untrue statement or
omission in any prospectus which is corrected by Transgenomic in
any subsequent prospectus, or supplement or amendment thereto, and
delivered to Geron prior to the sale or sales from which a loss or
liability arose, or (C) any failure by Geron to fulfill any of its
obligations under Section 5.1 hereof.
5.3 Promptly after receipt by any indemnified person of a notice of a
claim or the beginning of any action in respect of which indemnity
is to be sought against an indemnifying person pursuant to this
Section 5, such indemnified person shall notify the indemnifying
person in writing of such claim or of the commencement of such
action, but the omission to so notify the indemnifying party will
not relieve it from any liability which it may have to any
indemnified party under this Section 5 (except to the extent that
such omission materially and adversely affects the indemnifying
party's ability to define such action) or from any liability
otherwise than under this Section 5. Subject to the provisions
hereinafter stated, in case any such action shall be brought
against an indemnified person, the indemnifying person shall be
entitled to participate therein, and, to the extent that it shall
elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such
indemnified party, shall be entitled to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified
person.
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After notice from the indemnifying person to such indemnified
person of its election to assume the defense thereof, such
indemnifying person shall not be liable to such indemnified person
for any legal expense subsequently incurred by such indemnified
person in connection with the defense thereof, provided, however,
that if there exists or shall exist a conflict of interest that
would make inappropriate, in the reasonable opinion of counsel to
the indemnified person, for the same counsel to represent both the
indemnified person and such indemnifying person or any affiliate
or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person;
provided, however, that no indemnifying person shall be
responsible for the fees and expenses of more than on separate
counsel (together with appropriate local counsel) for all
indemnified parties. In no event shall any indemnifying person be
liable in respect to any amounts paid in settlement of any action
unless the indemnifying person shall have approved the terms of
such settlement. No indemnifying person shall, without the prior
written consent of the indemnified person, effect any settlement
of any pending or threatened proceeding in respect of which any
indemnified person is or could have been a party and
indemnification could have been sought hereunder by such
indemnified person, unless such settlement includes an
unconditional release of such indemnified person from all
liability on claims that are the subject matter of such
proceeding.
5.4 The provisions of this Section 5 shall survive the termination
of this Agreement.
6. REPRESENTATIONS AND ACKNOWLEDGEMENT OF GERON.
Geron hereby represents, warrants and covenants to Transgenomic as
follow:
6.1 Organization, Good Standing and Qualification. Geron is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite
corporate power and authority to carry on its business as now
conducted and as presently proposed to be conducted. Geron is duly
qualified to transact business and is in good standing as a
foreign corporation in each jurisdiction in which the failure to
so qualify would have a material adverse effect on its business or
properties.
6.2 Authorization. All corporate action on the party of Company, its
officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the
performance of all obligations of Company hereunder and the
authorization, issuance and delivery of the Shares has been taken
or will be taken prior to the Closing, and this Agreement, when
executed and delivered will constitute valid and legally binding
obligations of Geron, enforceable against Geron in accordance with
their terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and
other laws of general application affecting enforcement of
creditors' rights generally, as limited by laws relating to the
availability of specific performance, injunctive relief or other
equitable remedies.
6.3 Valid Issuance of Common Stock. The Shares, when issued, sold and
delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly and validly
authorized and issued, fully paid and nonassessable and free of
restrictions on transfer other than restrictions on transfer under
this Agreement and applicable state and federal securities laws.
6.4 Legal Proceedings and Orders. There is no action, suit, proceeding
or investigation pending or threatened against Geron that
questions the validity of this Agreement or the right of Geron to
enter into this Agreement or to consummate this transactions
contemplated hereby, nor is Geron aware of any basis for any of
the forgoing. Geron is neither a party nor subject to the
provisions of any order, writ, injunction, judgment or decree of
any court or government agency or instrumentality that would
affect the ability of Geron to enter into this Agreement or to
consummate the transactions contemplated hereby.
7. REPRESENTATIONS AND ACKNOWLEDGMENTS OF TRANSGENOMIC.
Transgenomic hereby represents, warrants, acknowledges and agrees that:
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7.1 Investment. Transgenomic is acquiring the Shares for
Transgenomic's own account, and not directly or indirectly for the
account of any other person. Transgenomic is acquiring the Shares
for investment and not with a view to distribution or resale
thereof, except in compliance with the Act and any applicable
state law regulating securities.
7.2 Access to Information. Transgenomic has consulted with its own
attorney, accountant, or investment advisor as Transgenomic has
deemed advisable with respect to the investment and has determined
its suitability for Transgenomic. Transgenomic has had the
opportunity to ask questions of, and to receive answers from,
appropriate executive officers of Geron with respect to the terms
and conditions of the transactions contemplated hereby and with
respect to the business, affairs, financial condition and results
of operations of Geron. Transgenomic has had access to such
financial and other information as is necessary in order for
Transgenomic to make a fully informed decision as to investment in
Geron, and has had the opportunity to obtain any additional
information necessary to verify any of such information to which
Transgenomic has had access. Transgenomic acknowledges that
neither Geron nor any of its officers, directors, employees,
agents, representatives, or advisors have made any representation
or warranty other than those specifically expressed herein.
7.3 Business and Financial Expertise. Transgenomic further represents
and warrants that it has such business or financial expertise as
to be able to evaluate its investment in Geron and purchase of the
Shares.
7.4 Speculative Investment. Transgenomic acknowledges that the
investment in Geron represented by the Shares is highly
speculative in nature and is subject to a high degree of risk of
loss in whole or in part; the amount of such investment is within
Transgenomic's risk capital means and is not so great in relation
to Transgenomic's total financial resources as would jeopardize
the personal financial needs of Transgenomic in the event such
investment were lost in whole or in part.
7.5 Unregistered Securities. Transgenomic acknowledges that:
7.5.1 Transgenomic must bear the economic risk of investment
for an indefinite period of time because the Shares
have not been registered under the Act and therefore
cannot and will not be sold unless they are
subsequently registered under the Act or an exemption
from such registration is available. Geron has made no
agreements, covenants or undertakings whatsoever to
register any of the Shares under the Act, except as
provided in Section 4 above. Geron has made no
representations, warranties or covenants whatsoever as
to whether any exemption from the Act, including,
without limitation, any exemption for limited sales in
routine brokers' transactions pursuant to Rule 144
under the Act, will become available and any such
exemption pursuant to Rule 144, if available at all,
will not be available unless: (i) a public trading
market then exists in Geron's common stock, (ii) Geron
has complied with the information requirements of Rule
144, and (iii) all other terms and conditions of Rule
144 have been satisfied.
7.5.2 Transfer of the Shares has not been registered or
qualified under any applicable state law regulating
securities and, therefore, the Shares cannot and will not
be sold unless they are subsequently registered or
qualified under any such act or an exemption therefrom is
available. Geron has made no agreements, covenants or
undertakings whatsoever to register or qualify any of the
Shares under any such act. Geron has made no
representations, warranties or covenants whatsoever as to
whether any exemption from any such act will become
available.
7.5.3 Transgenomic hereby certifies that it is an "Accredited
Investor" as that term is defined in Rule 501 under the
Act.
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8. TAX ADVICE. Transgenomic acknowledges that Transgenomic has not relied
and will not rely upon Geron or Geron's counsel with respect to any tax
consequences related to the ownership, purchase, or disposition of the
Shares. Transgenomic assumes full responsibility for all such
consequences and for the preparation and filing of all tax returns and
elections which may or must be filed in connection with the Shares.
9. NOTICES. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been duly given
on the date of delivery if delivered personally or by facsimile, or one
day, not including Saturdays, Sundays, or national holidays, after
sending if sent by national overnight delivery service, or five days, not
including Saturdays, Sundays, or national holidays, after mailing if
mailed by first class United States mail, certified or registered with
return receipt requested, postage prepaid, and addressed as follows:
To Geron at: Geron Corporation
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Transgenomic at: Transgenomic, Inc.
00000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Law Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
10. BINDING EFFECT. This Agreement shall be binding upon the heirs, legal
representatives and successors of Geron and of Transgenomic; provided,
however, that Transgenomic may not assign any rights or obligations under
this Agreement.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
12. INVALID PROVISIONS. In the event that any provision of this Agreement is
found to be invalid or otherwise unenforceable by a court or other
tribunal of competent jurisdiction, such invalidity or unenforceability
shall not be construed as rendering any other provision contained herein
invalid or unenforceable, and all such other provisions shall be given
full force and effect to the same extent as though the invalid and
unenforceable provision was not contained herein.
13. COUNTERPARTS. This Agreement may be executed in any number of identical
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14. AMENDMENTS. This Agreement or any provision hereof may be changed,
waived, or terminated only by a statement in writing signed by the party
against whom such change, waiver or termination is sought to be enforced.
15. FUTURE COOPERATION. Each of the parties hereto agrees to cooperate at all
times from and after the date hereof with respect to all of the matters
described herein, and to execute such further assignments, releases,
assumptions, amendments of the Agreement, notifications and other
documents as may be reasonably requested for the purpose of giving effect
to, or evidencing or giving notice of, the transactions contemplated by
this Agreement.
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16. ENTIRE AGREEMENT. This Agreement, the Common Stock Purchase Agreements
specified in Addendum Agreement Nos. 9 and 10 dated as of April 6, 2005,
and the Supply Agreement, including Addendum Agreement No. 10 thereto,
constitute the entire agreement of the parties pertaining to the Shares
and supersede all prior and contemporaneous agreements, representations,
and understandings of the parties with respect thereto.
IN WITNESS WHEREOF, the parties hereto have executed this Common Stock
Purchase Agreement as of the date first above written.
Geron Corporation
/s/ Xxxxx X. Xxxxxxxxx
-------------------------------------------
By: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President and Chief
Financial Officer
Transgenomic, Inc.
/s/ Xxxxxxx Xxxxxxx
-------------------------------------------
By: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
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