1
EXHIBIT 10.44
AMENDMENT NO. 1
SECURITIES PURCHASE AGREEMENT
This Amendment No. 1 (this "Amendment") is made as of June 17, 1999
and to that certain Securities Purchase Agreement (the "Securities Purchase
Agreement") dated as of December 10, 1998 by and among Geron Corporation, a
Delaware corporation, Xxxxx Xxxxxxx Strategic Growth Fund, Ltd., a Cayman
Islands exempt company, Xxxxx Xxxxxxx Strategic Growth Fund, L.P., a New York
limited partnership, LB I Group Inc., a Delaware corporation and RGC
International Investors, LDC, a Cayman Islands limited duration company.
WHEREAS the parties hereto are parties to the Securities Purchase
Agreement and desire to amend the terms of the Securities Purchase Agreement as
provided herein.
NOW THEREFORE, the parties hereto, in consideration of the mutual
agreements herein contained and the promises herein expressed, and for other
good consideration acknowledged by each of them to be satisfactory and adequate,
do hereby agree as follows:
1. Capitalized Terms. Capitalized terms used herein but not defined
herein have the meanings given to them in the Securities Purchase Agreement.
2. Amendments to the Securities Purchase Agreement. Pursuant to
Section 5.4, the parties hereto agree to the following amendments:
(a) The first paragraph of the Securities Purchase Agreement is
hereby deleted in its entirety and replaced with "THIS SECURITIES PURCHASE
AGREEMENT (this "Agreement") is dated as of December 10, 1998, among Geron
Corporation, a Delaware corporation (the "Company"), Xxxxx Xxxxxxx Strategic
Growth Fund, Ltd., a Cayman Islands exempt company ("Xxxxx Xxxxxxx Limited"),
Xxxxx Xxxxxxx Strategic Growth Fund, L.P., a New York limited partnership
("Xxxxx Xxxxxxx XX"), Xxxxx Xxxxxxx-XXX Investments LLC, a New York limited
liability company ("Xxxxx Xxxxxxx-XXX"), LB I Group Inc., a Delaware corporation
("LB Group") and RGC International Investors, LDC, a Cayman Islands limited
duration company ("RGC"). Xxxxx Xxxxxxx Limited, Xxxxx Xxxxxxx XX, Xxxxx
Xxxxxxx-XXX, XX Group and RGC are each referred to herein as a "Purchaser" and
are collectively referred to herein as the "Purchasers."
(b) As of the date hereof, Schedule I to the Securities Purchase
Agreement is hereby updated in its entirety with Schedule I attached hereto.
(c) As of the date hereof, Schedule II to the Securities Purchase
Agreement is hereby updated in its entirety with Schedule II attached hereto.
(d) As of the date hereof, the Schedules to the Securities Purchase
Agreement referenced throughout its Section 2.1 are hereby updated in their
entirety with the Amended and Restated Schedules attached hereto.
2
3. Entire Agreement. This Amendment, together with the Securities
Purchase Agreement, contains the entire agreement of the parties with respect to
the subject matter hereof and no representations, inducements, promises or
agreements, oral or otherwise, between the parties not embodies herein shall be
of any force or effect.
4. Governing Law. This Amendment shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York
without regard to the principles of conflicts of law thereof. Each party hereby
irrevocably submits to the nonexclusive jurisdiction of the state and federal
courts sitting in the City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof to such party at the
address for such notices to it under this Amendment and agrees that such service
shall constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law.
5. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES TO FOLLOW]
2
3
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have duly executed this Amendment as of the day first above written.
GERON CORPORATION
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President of Corporate
Development and Chief Financial
Officer
XXXXX XXXXXXX STRATEGIC
GROWTH FUND, LTD.
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title: Principal
Residence: Grand Cayman, Cayman Islands
XXXXX XXXXXXX STRATEGIC
GROWTH FUND, L.P.
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title: Principal
Residence: New York, New York
LB I GROUP INC.
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Senior Vice President
Residence: New York, New York
3
4
RGC INTERNATIONAL INVESTORS, LDC
By: Xxxx Xxxx Capital Management, L.P.,
Investment Manager
By: RGC General Partner Corp.,
as General Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Residence: Grand Cayman, Cayman Islands
AGREED TO AND ACKNOWLEDGED THIS
17th DAY OF JUNE, 1999:
XXXXX XXXXXXX-XXX INVESTMENTS LLC
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title:
Residence: New York, New York
4
5
Schedule I
Principal Principal
Amount of Amount of
Convertible Convertible
Debentures at Debentures at
Tranche A No. of Tranche Tranche B No. of Tranche B
Name of Purchaser Closing Date A Warrants Closing Date Warrants(1)
------------------- -------------- --------------- -------------- ----------------
Xxxxx Xxxxxxx
Strategic Growth
Fund, Ltd. $1,050,000 87,500 $1,050,000 87,500
Xxxxx Xxxxxxx
Strategic Growth
Fund, L.P. $ 450,000 37,500 $ 450,000 37,500
Xxxxx Xxxxxxx-XXX
Investments LLC $ 500,000 41,667 $ 500,000 41,667
LB I Group Inc. $3,000,000 250,000 $3,000,000 250,000
RGC International
Investors, LDC $2,500,000 208,333 $2,500,000 208,333
--------
(1) As may be adjusted from time to time in accordance with and subject to
paragraph 6 of the Warrant.
5
6
Schedule II
Name of Purchaser Address
----------------- -------
Xxxxx Xxxxxxx Strategic Growth Fund, Ltd. 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Fax: (000) 000-0000
Xxxxx Xxxxxxx Strategic Growth Fund, L.P. 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Fax: (000) 000-0000
Xxxxx Xxxxxxx-XXX Investments LLC [152 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Fax: (000) 000-0000]
LB I Group Inc. c/x Xxxxxx Brothers, Inc.
3 World Financial Center
New York, New York 10285
Attn: Xxxxx Jenirs
Fax: (000) 000-0000
RGC International Investors, LDC c/o Xxxx Xxxx Capital Management, L.P.
0 Xxxx Xxxxx Xxxx, Xxxxx 000
000 Xxxxx Xxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Fax: (000) 000-0000
6
