EXHIBIT 4.1
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made and entered
into as of May 2, 2006 (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 Cambrex Bio
Science Walkersville, Inc., a Delaware corporation having its principal place of
business at 0000 Xxxxx Xxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000 ("CBSW").
Capitalized terms not otherwise defined herein shall have the meaning set forth
in the MSA and Project Order No. 1.
X. Xxxxx and CBSW are the parties to that certain Master Services
Agreement, dated as of September 1, 2005 (the "MSA"), pursuant to
which CBSW has agreed to perform certain services on behalf of
Geron related to the manufacture of a product containing human
cells intended for therapeutic use in humans on the terms set
forth therein.
X. Xxxxx and CBSW entered into Project Order No. 1 to the MSA (the
"Project Order No. 1") effective September 1, 2005, pursuant to
which Geron is entitled, subject to certain conditions, to pay
any compensation owed to CBSW for Services performed under
Project Order No. 1 either in cash or in Geron's Common Stock
(the "Shares").
C. Subject to the terms and conditions of the Second Amendment to
Project Order No.1, dated as of March 1, 2006 ("Amendment No.
2"), Geron and CBSW have agreed that Geron shall, subject to
certain conditions, be entitled to pay up to US$4,500,000 for
Services under Project Order No. 1 by delivery of Shares, to be
delivered in installment payments of not more than US$1,000,000
each.
THE PARTIES AGREE AS FOLLOWS:
1. ISSUANCE OF SHARES; ADJUSTMENTS.
1.1 As payment of the second Installment Payment specified in
Project Order No. 1, Geron will issue and deliver
certificates for 134,048 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 five (5) business days after the
Effective Date of this Agreement (the "Closing Date"). At
the Closing, Geron shall deliver to CBSW one or more
certificates representing all of the Shares, which Shares
shall be issued in the name of CBSW or its designee and in
such denominations as CBSW shall specify.
2.2 Geron's obligations to issue and deliver the stock
certificate(s) representing the Shares to CBSW at the
Closing shall be subject to the following conditions, which
may be waived by Geron:
2.2.1 the covenants and obligations that CBSW 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 CBSW
herein shall be true and correct in all material
respects as of the Closing Date.
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2.3 CBSW'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 CBSW:
2.3.1 the covenants and obligations that Geron 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;
2.3.2 Geron shall have available under its Certificate of
Incorporation sufficient authorized shares of
Common Stock to issue the Shares to CBSW; and
2.3.3 the representations and warranties made by Geron
herein shall be true and correct in all material
respects as of the Closing Date.
3. RESTRICTIONS ON RESALE OF SHARES.
3.1 Legends. CBSW 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
CBSW 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 MAY 2, 2006. A COPY OF THE AGREEMENT CAN BE
OBTAINED FROM THE SECRETARY OF GERON."
3.2 Limits on Sales. CBSW agrees that if it decides to resell
some or all of the Shares, it will do so only in an
appropriate manner through orderly sales executed through a
top-tier brokerage firm, and based upon whether the shares
are registered or unregistered, i.e., on the Nasdaq National
Market or in a Rule 144A compliant transaction.
3.3 Further Limitations. The Company shall not be required (i)
to transfer on its books any Shares that have been sold or
otherwise transferred in violation of any of the provisions
of this Agreement or applicable securities laws; or (ii) to
treat as owner of such Shares or to accord the right to vote
or pay dividends to any purchaser or other transferee to
whom such Shares shall have been so transferred in violation
of any of the provisions of this Agreement or applicable
securities laws.
4. REGISTRATION RIGHTS
4.1 Geron agrees to make commercially reasonable efforts to file
with the Securities and Exchange Commission (the
"Commission") within ten (10) 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 CBSW. Geron agrees to
diligently pursue making the Registration Statement
effective. Geron will make commercially reasonable efforts
to notify CBSW of the effectiveness of the Registration
Statement within one (1) business day of receiving notice
from the Commission declaring the Registration Statement
effective, but no later than the close of business (Pacific
Time) of the second business day after receipt of such
notice from the Commission.
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4.2 Geron shall notify CBSW as promptly as possible of any
review initiated by the Commission with respect to any such
Registration Statement.
4.3 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 CBSW receives an opinion of
counsel to Geron, which counsel shall be reasonably
acceptable to CBSW, that the Shares may be sold under the
provisions of Rule 144, (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 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 CBSW.
4.4 Geron, at its expense, shall furnish to CBSW 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 CBSW
may reasonably request, in order to facilitate the public
sale or other disposition of all or any of the Shares by
CBSW, provided, however, that the obligation of Geron to
deliver copies of prospectuses or preliminary prospectuses
to CBSW shall be subject to the receipt by Geron of
reasonable assurances from CBSW that CBSW 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.
4.5 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. CBSW shall bear the cost of
all fees and expenses of CBSW's counsel.
4.6 Geron will advise CBSW 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 as promptly as
possible if such stop order should be issued.
4.7 With a view to making available to CBSW the benefits of Rule
144 (or its successor rule) and any other rule or regulation
of the Commission that may at the time permit CBSW 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.
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4.8 CBSW 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 CBSW 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 CBSW to consent to be named as an
underwriter in any Registration Statement.
5. INDEMNIFICATION.
5.1 Geron agrees to indemnify and hold harmless CBSW (and each
person, if any, who controls CBSW within the meaning of
Section 15 of the Act, and each officer and director of
CBSW) 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 (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 arises out of or is
based upon (A) 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 CBSW or such other person
expressly for use in the preparation thereof, (B) the
failure of CBSW 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 CBSW
prior to the pertinent sale or sales by CBSW. 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 CBSW.
5.2 CBSW 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 officer and 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 CBSW 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 or
on behalf of CBSW specifically for use in preparation of the
Registration Statement; provided, however, that CBSW 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 CBSW 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 CBSW 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.
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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 defend 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.
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 one 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 a party, 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 CBSW 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. Geron has full right, power, authority and
capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and thereby and has taken
all necessary action to authorize the execution, delivery
and performance of this Agreement. Upon execution and
delivery, this Agreement will constitute a valid and binding
obligation of Geron enforceable against Geron in accordance
with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer, liquidation or similar laws
relating to, or affecting generally, the enforcement of
creditor's rights and remedies or by other equitable
principles of general application from time to time in
effect.
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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
the transactions contemplated hereby, nor is Geron aware of
any basis for any of the foregoing. 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 CBSW.
CBSW hereby represents, warrants, acknowledges and agrees that:
7.1 Investment. CBSW is acquiring the Shares for CBSW's own
account, and not directly or indirectly for the account of
any other person. CBSW 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. CBSW has consulted with its own
attorney, accountant, or investment advisor as CBSW has
deemed advisable with respect to the investment and has
determined its suitability for CBSW. CBSW 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. CBSW has had
access to such financial and other information as is
necessary in order for CBSW 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 CBSW has had
access. CBSW 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. CBSW 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. CBSW 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 CBSW's risk capital means and is not so
great in relation to CBSW's total financial resources as
would jeopardize the personal financial needs of CBSW in the
event such investment were lost in whole or in part.
7.5 Unregistered Securities. CBSW acknowledges that:
7.5.1 CBSW must bear the economic risk of investment for
an indefinite period of time because the Shares
have not been registered under the Act and
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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 CBSW hereby certifies that it is an "Accredited
Investor" as that term is defined in Rule 501 under
the Act.
7.6 Authorization. CBSW has full right, power, authority and
capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and thereby and has taken
all necessary action to authorize the execution, delivery
and performance of this Agreement. Upon execution and
delivery, this Agreement will constitute a valid and binding
obligation of CBSW enforceable against CBSW in accordance
with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer, liquidation or similar laws
relating to, or affecting generally, the enforcement of
creditor's rights and remedies or by other equitable
principles of general application from time to time in
effect.
8. TAX ADVICE. CBSW acknowledges that CBSW 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. CBSW
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: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Geron Corporation
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Senior Director, Legal
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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To CBSW at: Cambrex Bio Science Walkersville
0000 Xxxxx Xxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: VP of Business Development
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Cambrex Corporation
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: General Counsel
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 CBSW.
11. GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the laws of the state of Delaware, without giving
effect to its conflicts of laws provisions.
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.
16. ENTIRE AGREEMENT. This agreement, and the MSA, and Project Order No. 1
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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
Geron Corporation
/s/ Xxxxx X. Xxxxxxxxx
----------------------
By: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
Cambrex Bio Science Walkersville, Inc.
/s/ Xxxxx X. Xxxxxxxx
---------------------
By: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
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