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EXHIBIT 10.29
COMMON STOCK
PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made as of
the 23rd day of March 1997, by and between Geron Corporation, a Delaware
corporation having its principal place of business at 000 Xxxxxxxxxxxx Xxxxx,
Xxxxx Xxxx, Xxxxxxxxxx, X.X.X. 00000 (the "Company"), and Pharmacia & Upjohn
S.p.A., an Italian corporation having its principal place of business at Xxx
Xxxxxx Xxxx, 0.0, 00000 Xxxxxx, Xxxxx (the "Investor").
Recitals
WHEREAS, on January 10, 1997, the Investor purchased 99,805 shares of
the Company's Common Stock pursuant to a Common Stock Purchase Agreement dated
December 20, 1996 (the "First Equity Investment");
WHEREAS, the Company and the Investor are parties to a certain License
and Research Collaboration Agreement of even date herewith (the "Collaboration
Agreement"); and
WHEREAS, pursuant to Article 10 of the Collaboration Agreement, the
Investor has agreed to purchase, and the Company has agreed to sell, in an
off-shore transaction, certain shares of the Company's Common Stock on the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Stock.
1.1 Sale and Issuance of Common Stock.
(a) Second Equity Investment. Subject to the
terms and conditions of this Agreement, the Investor agrees to purchase at the
Second Closing (as defined below) and the Company agrees to sell and issue to
the Investor at the Second Closing, that number of shares (rounded to the
nearest whole number) of the Company's Common Stock (the "Second Closing Common
Stock") that is equal to U.S. $4,000,000 divided by a price per share equal to
the sum of (x) the average closing price of the Common Stock on the Nasdaq
National Market for the [*] trading days (the [*] Average Price") following the
day on which Geron publicly announces the execution of the Collaboration
Agreement (the "Announcement Date") plus (y) a premium equal to [*] of such [*]
Average Price. The purchase and sale of stock pursuant to this Section 1.1(a)
shall be referred to as the "Second Equity Investment."
* Certain portions of this Exhibit have been omitted for which confidential
treatment has been requested and filed separately with the Securities and
Exchange Commission.
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(b) Third Equity Investment. Subject to the
terms and conditions of this Agreement, the Investor agrees to purchase at the
Third Closing (as defined below) and the Company agrees to sell and issue to the
Investor at the Third Closing, that number of shares (rounded to the nearest
whole number) of the Company's Common Stock (the "Third Closing Common Stock",
and with the Second Closing Common Stock, the "Common Stock") that is equal to
U.S. $4,000,000 divided by a price per share equal to the sum of (x) the [*]
Average Price preceding the first anniversary of the Signature Date (as defined
in the Collaboration Agreement) of the Collaboration Agreement (the "Anniversary
Date") plus (y) a premium equal to [*] of such [*] Average Price. The purchase
and sale of stock pursuant to this Section 1.1(b) shall be referred to as the
"Third Equity Investment." The First, Second and Third Equity Investments are
collectively referred to hereafter as the "Equity Investments."
1.2 Closings.
(a) The purchase and sale of the Second Closing
Common Stock under Section 1.1(a) above shall take place at the offices of
Venture Law Group, 0000 Xxxx Xxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx X.X.X. 00000
("VLG"), the later of (i) twenty-three (23) trading days following the
Announcement Date (ii) one (1) business day following the Effective Date (as
defined in the Collaboration Agreement) of the Collaboration Agreement, or at
such other time and place as the Company and the Investor mutually agree upon
orally or in writing (which time and place are designated as the "Second
Closing"). The purchase and sale of the Third Closing Common Stock under
Section 1.1(b) above shall take place at the offices of VLG three (3) trading
days following the Anniversary Date or at such other time and place as the
Company and the Investor mutually agree upon orally or in writing (which time
and place are designated as the "Third Closing"). At both the Second Closing
and the Third Closing, the Company shall deliver to the Investor a certificate
representing the Common Stock which such Investor is purchasing against
delivery to the Company by such Investor of a check or wire transfer in the
amount of U.S. $4,000,000 payable to the Company's order.
(b) For purposes of this Agreement, unless
otherwise indicated, the term "Closing" refers to the closing of the purchase
and sale of the Common Stock on a particular date and the term "Closing Date"
refers to the date of the Closing. The Second Closing and the Third Closing
are referred to herein collectively as the "Closings."
1.3. No Registration of Shares. The shares of Common
Stock will be issued to Investor without registration under the Securities Act
of 1933, as amended (the "Securities Act"), in reliance on Regulation S
("Regulation S") promulgated thereunder by the United States Securities and
Exchange Commission (the "SEC").
1.4 NASD Limitation. The parties acknowledge and agree
that, as of the date of this Agreement, Investor is not expected to purchase
and the Company is not expected to sell more than twenty percent (20%) of the
outstanding securities of the Company (as defined in the rules and regulations
of the National Association of Securities Dealers, Inc. ("NASD")) as a
* Certain portions of this Exhibit have been omitted for which confidential
treatment has been requested and filed separately with the Securities and
Exchange Commission.
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result of all of the Equity Investments. Notwithstanding Sections 1.1 and 1.2
above, in the event the sale of the Second or Third Closing Common Stock would
result in Investor purchasing in the aggregate pursuant to the Equity
Investments more than twenty percent (20%) of the outstanding securities of the
Company, as calculated in accordance with the rules and regulations of the
NASD, then the parties shall meet and discuss in good faith the most
appropriate way to amend this Agreement so as to accomplish the intent of
parties as reflected in Section 1.1 of this Agreement and to comply with the
applicable rules and regulations of the NASD.
2. Representations, Warranties and Covenants of the Investor.
The Investor hereby represents, warrants and covenants that, as of the date of
this Agreement and as of each Closing Date:
2.1 Authorization. It has full power and authority to
enter into this Agreement. This Agreement has been duly authorized, executed
and delivered by such Investor and constitutes its valid and legally binding
obligation, enforceable in accordance with its terms, subject to bankruptcy and
other laws of general application affecting the rights of creditors, and except
to the extent that the availability of any equitable remedy is subject to the
discretion of a court.
2.2 Purchase Entirely for Own Account. This Agreement is
made with the Investor in reliance upon such Investor's representation to the
Company, which by such Investor's execution of this Agreement such Investor
hereby confirms, that the Common Stock will be acquired for investment for such
Investor's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that such Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, the Investor further
represents that such Investor does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
shares of Common Stock.
2.3 Disclosure of Information. The Investor hereby
acknowledges that it has received a copy of (i) the Company's final prospectus
dated July 30, 1996 issued in connection with the Company's initial public
offering (the "Final Prospectus"), (ii) the Company's quarterly reports on Form
10-Q for the quarters ended June 30, 1996 and September 30, 1996 and the
Company's annual report on Form 10-K for the year ended December 31, 1996.
Investor also acknowledges that it has had an opportunity to ask questions and
receive answers from the Company regarding the terms and conditions of the sale
and issuance of the Common Stock.
2.4 Investment Experience. The Investor can bear the
economic risk of its investment and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment in the Common Stock.
2.5 Consents. No consent, approval or authorization of
or designation, declaration or filing with any state, federal or foreign
governmental authority on the part of the
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Investor is required in connection with the valid execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby;
provided, however, that Schedule 13D shall be filed by the Investor on a timely
basis if required by applicable law.
2.6 No Public Solicitation. The offering of the Common
Stock of the Company to the Investor was made solely in connection with the
negotiation and execution of the Collaboration Agreement and not as part of any
public solicitation.
2.7 Regulation S.
(a) The Investor is familiar with Regulation S
and is not a "U.S. Person" as that term is defined in Regulation S and is not
acquiring the Common Stock for the account or benefit of a U.S. Person..
(b) Without in any way limiting the
representations set forth above, and subject to Section 4 below, the Investor
further agrees not to make any disposition of all or any portion of the Common
Stock unless and until:
(i) Such disposition is in accordance
with Regulation S, or
(ii) There is then in effect a
Registration Statement under the Securities Act covering such proposed
disposition and such disposition is made in accordance with such Registration
Statement, or
(iii) (y) The Investor shall have notified
the Company of the proposed disposition and shall have furnished the Company
with a detailed statement of the circumstances surrounding the proposed
disposition, and (z) if reasonably requested by the Company, the Investor shall
have furnished the Company with an opinion of counsel, reasonably satisfactory
to the Company, that such disposition will not require registration under the
Securities Act.
(c) It is understood that the Common Stock, and
any securities issued in respect thereof or exchange therefor, shall be subject
to a stop order until the earlier of (i) the expiration of the Research Term
(as defined in the Collaboration Agreement) or (ii) 180 days following the
termination of the Collaboration Agreement in accordance with its terms. It is
also understood, and the Company agrees, that the Company will not register the
transfer of any shares of the Common Stock except in compliance with the
Securities Act.
(d) The buy order for the Common Stock being
purchased hereunder will be originated by the Investor outside of the United
States.
2.8 No Registration. The Investor understands that the
Common Stock has not been and will not be registered under the applicable
securities laws of Italy and represents that it has not offered or sold, and
agrees that it will not offer or sell, any Common Stock, directly or indirectly
in Italy or to or from any resident of Italy except (i) pursuant to an
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exemption from the registration requirements of the applicable securities laws
of Italy and (ii) in compliance with any other applicable requirements of the
laws of the Italy.
2.9 Exchange Act Filings. Investor agrees and
acknowledges that it shall have sole responsibility for making any filings with
the U.S. Securities and Exchange Commission pursuant to Sections 13 and 16 of
the Exchange Act as a result of its acquisition of the Company's capital stock
(including the Common Stock purchased under this Agreement and pursuant to the
First Equity Investment) and any future retention or transfer thereof.
3. Representations, Warranties and Covenants of the Company. The
Company hereby represents, warrants and covenants that, as of the date hereof
and as of each Closing Date:
3.1 Organization. The Company: (a) is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware; (b) has all requisite corporate power and authority to own
and operate its properties and assets and to carry on its business as it is
presently being conducted and as proposed to be conducted in the Final
Prospectus and the Collaboration Agreement; and (c) is qualified and is in good
standing as a foreign corporation in all jurisdictions in which the failure to
so qualify would have a material adverse effect on its business or properties.
3.2 Authorization. The Company has full power and
authority to enter into this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and constitutes its valid and
legally binding obligation, enforceable in accordance with its terms, subject
to bankruptcy and other laws of general application affecting the rights of
creditors, and except to the extent that the availability of any equitable
remedy is subject to the discretion of the court.
3.3 Validity of Shares. The shares of Common Stock to be
delivered to the Investor pursuant to this Agreement, when issued in accordance
with the terms and provisions of this Agreement, will be validly authorized,
validly issued, fully paid and nonassessable.
3.4 SEC Documents. The Company has filed all required
reports, schedules, forms, statements and other documents with the SEC since
December 1, 1995 (the "SEC Documents") and will continue to file all required
SEC Documents through the time period set forth in Section 4.1 hereof. As of
their respective dates, the SEC Documents complied in all material respects
with the requirements of the Securities Act of 1933, as amended, or the
Securities Exchange Act of 1934, as amended, as the case may be, and the rules
and regulations of the SEC promulgated thereunder applicable to such SEC
Documents, and none of the SEC Documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except to the extent
such statements have been modified or superseded by a later filed SEC Document.
The Company will provide the Investor with copies of all SEC Documents promptly
after filing them with the SEC through the time period set forth in Section 4.1
hereof.
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3.5 Capital Structure. As of the date of this Agreement,
the authorized capital stock of the Company consists of 25,000,000 shares of
common stock, $0.001 par value, and 3,000,000 shares of preferred stock, $0.001
par value. At the close of business on March 14, 1997, (i) 10,217,712 shares
of Company Common Stock were issued and outstanding, (ii) no shares of Company
Common Stock were held in treasury and (iii) 2,184,100 shares of Company Common
Stock were reserved for issuance upon the exercise of outstanding options or
warrants.
3.6 Stock Exchange Listing. The Company shall cause the
shares of Common Stock to be issued pursuant to this Agreement to be approved
for listing on the NASDAQ National Market System, subject to official notice of
issuance, prior to the Closing Date.
3.7 Non-Contravention. Neither the execution and
delivery of this Agreement or the Collaboration Agreement nor the consummation
or performance of the sale of stock hereby or the performance of its
obligations under the Collaboration Agreement will, directly or indirectly
(with or without notice or lapse of time): (i) contravene, conflict with, or
result in a violation of (A) any provision of the certificate of incorporation
or other organizational documents of the Company, or (B) any resolution adopted
by the board of directors or the stockholders of the Company; or (ii)
contravene, conflict with, or result in a violation or breach of any material
provision of, or give any person the right to declare a default or exercise any
remedy under, or to accelerate the maturity or performance of, or to cancel,
terminate, or materially modify, any material agreement, material license or
other material right of the Company.
3.8 Governmental Consents. All consents, approvals,
orders, authorizations, registrations, qualifications, designations, or filings
of or with any federal, state or local governmental authority on the part of
the Company required in connection with the sale of stock contemplated herein
have been or shall be obtained prior to the Closing and shall be effective as
of the Closing.
3.9 No Adverse Change. Since December 31, 1996, except
as disclosed to the Investor in writing or in the SEC Documents, there has not
been:
(a) any change in the assets, properties,
liabilities, financial condition, operating results, prospects or business of
the Company from that reflected in the SEC Documents, except changes in the
ordinary course of business which have not been, in the aggregate, materially
adverse and except for continued losses from operations;
(b) any satisfaction or discharge of any lien,
claim or encumbrance or payment of any obligation by the Company, except in the
ordinary course of business and which is not material to the assets,
properties, financial condition, operating results, prospects or business of
the Company (as such business is presently conducted and as it is proposed to
be conducted in the Final Prospectus);
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(c) any material change or amendment to a
material contract or arrangement by which the Company or any of its assets or
properties is bound or subject; or
(d) any incurrence of any other liabilities
which, individually or in the aggregate, are material and adverse to the
Company.
3.10 Litigation. Except as set forth in the Final
Prospectus or in an SEC Document, there is no action, proceeding or
investigation pending or, to the Company's knowledge, threatened, or any basis
therefor known to the Company, that, if determined adversely to the Company,
would have, individually or in the aggregate, a material adverse effect on the
Company or materially impair the ability of the Company to perform its
obligations under the Collaboration Agreement, including, without limitation,
any action, proceeding or investigation involving the prior employment or
consultancy of any of the Company's employees or consultants or their use of
any information or techniques alleged to be proprietary to any former employer
of any such employee or consultant. There is no judgment, decree or order of
any court, or governmental or regulatory authority in effect against the
Company. There is no action, suit, proceeding or investigation by the Company
currently pending or which the Company presently intends to initiate.
3.11 Intellectual Property Rights. Except as described in
the Final Prospectus or SEC Document or as otherwise disclosed in writing to
Investor and its counsel: (a) the Company has sufficient title and rights in
all of its IP Rights (as defined below) necessary to conduct its business as
now conducted and as proposed to be conducted in the Final Prospectus,
including the performance of the Research (as such term is defined in the
Collaboration Agreement) without conflict with or infringement of the rights of
others, except where the failure to have such rights would not have a material
adverse effect on the Company or the rights of Investor contemplated under the
Collaboration Agreement; (b) the Company has not received any communications
alleging that the Company has violated or would violate the IP Rights of others
by conducting its business as now conducted or as proposed to be conducted in
the Final Prospectus or the Collaboration Agreement, nor is the Company
otherwise aware of any such circumstances, except where such violation would
not have a material adverse effect on the Company or the rights of Investor
contemplated under the Collaboration Agreement; (c) other than its agreements
with Kyowa Hakko (as defined in the Collaboration Agreement), the Company has
not granted any options, licenses or other rights to others for the commercial
use in any country of its IP Rights in the Field (as currently defined in the
Collaboration Agreement) and (d) the Company is not aware of the infringement
by any third party of the Company's IP Rights, except where such infringement
would not have a material adverse effect on the Company or Investor's rights
contemplated under the Collaboration Agreement. The Company may grant Investor
the license rights and enter into the other agreements contemplated under the
Collaboration Agreement with respect to its IP Rights without requiring the
consent of any third party, other than Kyowa Hakko (as defined in the
Collaboration Agreement). "IP Rights" means patents, trademarks and
applications therefor, service marks, trade names, copyrights, trade secrets,
know how and license or option rights from third parties to any of the
foregoing.
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3.12 Minutes. The minutes of the Company since January 1,
1995 have been made available to counsel to the Investor and contain a complete
summary of all meetings and actions by unanimous consent of directors and
stockholders since January 1, 1995 and reflect all transactions referred to in
such minutes accurately in all material respects.
3.13 Material Contracts. All contracts and other
documents: (i) required to be described in the SEC Documents, (ii) required to
be filed as exhibits to the SEC Documents, or (iii) that are material to the
Company's IP Rights in the Field, have been either made available to the
Investor, described in the SEC Documents or filed with the SEC as exhibits to
the SEC Documents, as the case may be.
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4. Restrictions on Sales.
4.1 Agreement Not to Sell. Investor agrees not to
directly or indirectly sell, offer to sell, contract to sell (including,
without limitation, any short sale), grant any option to purchase or otherwise
transfer or dispose of (other than to affiliates who agree to be similarly
bound) (collectively, "Transfer Restrictions") the Common Stock being purchased
pursuant to this Agreement or purchased pursuant to the First Equity Investment
prior to the earlier of (i) the expiration of the Research Term (as defined
under the Collaboration Agreement), (ii) 180 days following the termination of
the Collaboration Agreement in accordance with its terms, (iii) the date any
"person," as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), (other than the Company,
any trustee or other fiduciary holding securities under an employee benefit
plan of the Company, or any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of the stock of the Company), is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 30% or more of the combined voting power
of the Company's then outstanding securities, (iv) the consummation of a merger
or consolidation of the Company with any other corporation, other than (a) a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities of the
surviving entity) more than 80% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation or (b) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which
no "person" (as hereinabove defined) acquires more than 30% of the combined
voting power of the Company's then outstanding securities, or (v) the
consummation of the sale or disposition by the Company of all or substantially
all of the Company's assets.
4.2 Limitation on Sales. Subject to Section 4.1 above,
Investor will notify the Company at least two trading days in advance of any
proposed sale or other transfer of more than 25,000 shares of the Common Stock.
Investor and the Company agree and acknowledge that it is in their mutual
interest that disposition of Common Stock requiring notice to the Company
hereunder be accomplished in a manner that does not disrupt or undermine the
trading market for the Company's common stock on the Nasdaq National Market
System. Investor will consider in good faith any request by the Company to
delay such sale or transfer for a reasonable time or to arrange such sale or
transfer through an underwriter or market maker approved by the Company;
provided, however, that Investor will be under no obligation to comply with any
such request.
5. Conditions of Investor's Obligations at Closings. The
obligations of the Investor under subsection 1.1 of this Agreement are subject
to the fulfillment on or before each Closing of the following conditions by the
Company:
5.1 Representations and Warranties. The representations
and warranties of the Company contained in Section 3 shall be true and correct
in all material respects on and as of each Closing with the same force and
effect as though such representations and warranties had
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been made on and as of each Closing, except, for the Third Closing, with regard
to the representations set forth in Sections 3.5, 3.9, 3.10, 3.11, 3.12 and
3.13 as may be disclosed in writing to Investor as of the Third Closing; it
being understood and agreed that upon disclosure of such exceptions with regard
to the representations set forth in Sections 3.5, 3.9, 3.10, 3.11, 3.12 and
3.13, the condition of this Section 5.1 shall be satisfied with respect to the
Third Closing.
5.2 Delivery of Common Stock. The Company shall have
delivered certificates representing the Common Stock being purchased by the
Investor at such Closing pursuant to this Agreement; and
5.3 Performance. The Company shall have performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
such Closing and the Investor shall not have terminated the Collaboration
Agreement pursuant to Sections 17.2, 17.3 or 17.4 of the Collaboration
Agreement.
5.4 Effectiveness of Collaboration Agreement. The
Collaboration Agreement shall be effective in accordance with Section 19.14
therein.
6. Conditions of the Company's Obligations at Closings. The
obligations of the Company to the Investor under this Agreement are subject to
the fulfillment on or before each Closing of each of the following conditions
by the Investor:
6.1 Representations and Warranties. The representations
and warranties of the Investor contained in Section 2 shall be true and correct
on and as of each Closing with the same force and effect as though such
representations and warranties had been made on and as of such Closing;
6.2 Payment of Purchase Price. The Investor shall have
delivered the applicable purchase price specified in Section 1.1; and
6.3 Performance. The Investor shall have performed and
complied with all agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
such Closing and the Company shall not have terminated the Collaboration
Agreement pursuant to Sections 17.2, 17.3 or 17.4 of the Collaboration
Agreement.
7. Miscellaneous.
7.1 Survival of Warranties. The warranties,
representations and covenants of the Investor and the Company contained in or
made pursuant to this Agreement shall survive the execution and delivery of
this Agreement and each Closing for a period of two (2) years from the date of
such Closing and shall in no way be affected by any investigation of the
subject matter
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thereof made by or on behalf of either party; provided, that such
representations and warranties shall speak only as of the date of this
Agreement and each Closing, as applicable.
7.2 Benefit of Agreement; Successors and Assigns. Except
as otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties (including transferees of the Common Stock). Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as otherwise expressly provided in this Agreement.
7.3 Governing Law. This Agreement shall be governed by
and construed under the laws of the State of California as applied to
agreements among California residents entered into and to be performed entirely
within California.
7.4 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
7.5 Titles and Subtitles. The titles and subtitles used
in this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
7.6 Notices. Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in writing and shall
be deemed effectively given upon personal or courier delivery to the party to
be notified or ten (10) days after deposit with the United States or Italian
Post Office, by registered or certified mail, postage prepaid and addressed to
the party to be notified at the address indicated for such party on the first
page hereof, or at such other address as such party may designate by ten (10)
days' advance written notice to the other parties.
7.7 Expenses. Irrespective of whether each Closing is
effected, each party shall pay all costs and expenses that it incurs with
respect to the negotiation, execution, delivery and performance of this
Agreement and all other transactions contemplated hereby.
7.8 Amendments and Waivers. Any term of this Agreement
may be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Investor.
Any amendment or waiver effected in accordance with this paragraph shall be
binding upon each holder of any securities purchased under this Agreement at
the time outstanding (including securities into which such securities are
convertible or exchanged), each future holder of all such securities, and the
Company.
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7.9 Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
7.10 Entire Agreement. This Agreement constitutes the
entire agreement among the parties regarding the sale of Common Stock to the
Investor and no party shall be liable or bound to any other party in any manner
with regard to such sale by any warranties, representations, or covenants
except as specifically set forth herein.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
GERON CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Its: President
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PHARMACIA & UPJOHN S.P.A.
By: /s/ Xxxxxxxx Xxxxxxxxx
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Its: Managing Director
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