Exhibit 10.1
Restructuring Agreement dated as of May 23, 2003, by and between Registrant
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and RGC International Investors, LDC
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RESTRUCTURING AGREEMENT
Between
GERON CORPORATION
and
RGC INTERNATIONAL INVESTORS, LDC
Dated as of May 23, 2003
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RESTRUCTURING AGREEMENT
THIS RESTRUCTURING AGREEMENT (this "Agreement") is dated as of May
23, 2003, between Geron Corporation, a Delaware corporation (the "Company") and
RGC INTERNATIONAL INVESTORS, LDC, a Cayman Islands limited duration company
(together with its affiliates to which rights hereunder may be transferred
pursuant to Section 5.6 hereof and any other assignee or transferee of its
rights hereunder in accordance with Section 5.6 hereof, the "Purchaser").
WHEREAS, pursuant to the Securities Purchase Agreement, dated June
29, 2000, by and between the Company and the Purchaser (the "Series D Purchase
Agreement"), the Company issued and sold to the Purchaser, and the Purchaser
purchased from the Company, an aggregate of Twenty-Five Million Dollars
($25,000,000) in principal amount of Series D Zero Coupon Convertible
Debentures, (the "Series D Debentures"), and, warrants, (the "Series D
Warrants"), to purchase up to Eight Hundred Thirty Four Thousand Eight Hundred
Thirty Six (834,836) shares of the Company's common stock, par value $.001 per
share (the "Common Stock");
WHEREAS, pursuant to the Restructuring Agreement dated November 9,
2001 (the "Initial Restructuring Agreement"), (i) the Series D Warrants were
amended and restated and reissued as two separate warrants (the "Series D-1
Warrants" and the "Series D-2 Warrants" and, collectively, the "Amended Series D
Warrants") and (ii) Ten Million Dollars ($10 million) of Series D Debentures
were converted into 1,011,122 shares of Common Stock and the Series D Amended
and Restated Convertible Debenture in the aggregate principal amount of Fifteen
Million Dollars was reissued to the Purchaser (the "Amended Series D
Debentures");
WHEREAS, (i) pursuant to the terms of the Registration Rights
Agreement, dated June 29, 2000, by and between the Company and the Purchaser
(the "Registration Rights Agreement"), the Company registered with the SEC on
Registration Statement No. 333-40984 the shares of Common Stock underlying the
Series D Debentures and the Series D Warrants (the "Series D Registration
Statement"); (ii) pursuant to Amendment No. 1 to the Registration Rights
Agreement ("Amendment No. 1"), the Company amended the Registration Rights
Agreement to include all the shares of Common Stock issuable pursuant to the
Amended Series D Debenture and the Amended Series D Warrants; and (iii) the
Company shall amend (in connection with this Agreement) the Registration Rights
Agreement pursuant to Amendment No. 2 to the Registration Rights Agreement
("Amendment No. 2" and collectively with Amendment No. 1 and the Registration
Rights Agreement, the "Series D Registration Rights Agreement") to include all
the shares of Common Stock issuable pursuant to the Restated Series D Debentures
and the Restated Series D Warrants; and
WHEREAS, this Agreement shall provide for the amendment and
restatement of the Amended Series D Debentures and Amended Series D Warrants.
IN CONSIDERATION of the mutual covenants contained in this Agreement,
the Company and the Purchaser agree as follows:
ARTICLE I
CONVERSION; AMENDMENT OF DEBENTURES AND WARRANTS
1.1 Amendment of Debentures. The Amended Series D Debentures shall be amended
and restated and shall be reissued in the form attached hereto as "Exhibit A"
(the "Restated Series D Debentures").
1.2 Amendment of Warrants. The Series D-1 Warrants and the Series D-2 Warrants
shall each be amended and restated and shall be reissued as separate warrants in
the forms attached hereto as "Exhibit B-1" (the "Restated Series D-1 Warrant")
and "Exhibit B-2" (the "Restated Series D-2 Warrant" which together with the
Series D-1 Warrants shall be collectively referred to herein as the "Restated
Series D Warrants").
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1.3 The Closing. The closing of the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of Akerman Senterfitt, Xxx
Xxxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxx, Xxxxxxx 00000-0000, immediately
following the execution hereof or such later date or different location as the
parties shall agree, but not prior to the date that the conditions set forth in
Section 4.1 have been satisfied or waived by the appropriate party (the "Closing
Date"). At the Closing Date:
(a) The Company shall deliver to the Purchaser the Restated Series D
Debentures and the Restated Series D Warrants; and
(b) The parties shall execute and deliver each of the documents
referred to in Section 4.1 hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations, Warranties and Agreements of the Company. The Company
hereby makes the following representations and warranties to the Purchaser:
(a) Organization and Qualification. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware, with the requisite corporate power and authority to own,
lease, use and operate its properties and assets and to carry on its
business as currently conducted. Except as set forth on Schedule 2.1(a)
(which, with the other schedules referenced herein, have been delivered
separately to the Purchaser), the Company has no subsidiaries
(collectively, the "Subsidiaries" (as defined below)). Each of the
Subsidiaries is a corporation duly incorporated, validly existing and in
good standing under the laws of the jurisdiction of its incorporation, with
the full corporate power and authority to own, lease, use and operate its
properties and assets and to carry on its business as currently conducted.
Each of the Company and the Subsidiaries is duly qualified to do business
and is in good standing as a foreign corporation in each jurisdiction in
which the nature of the business conducted or property owned by it makes
such qualification necessary, except where the failure to be so qualified
or in good standing, as the case may be, would not have a Material Adverse
Effect (as defined below). "Material Adverse Effect" means any material
adverse effect on (i) the Securities (as defined below), (ii) the business,
operations, assets, financial condition or prospects of the Company and its
Subsidiaries, if any, taken as a whole, (iii) on the transactions
contemplated hereby or by the agreements or instruments to be entered into
in connection herewith, or (iv) the authority or the ability of the Company
to perform its obligations under this Agreement, the Restated Series D
Debentures or the Restated Series D Warrants. "Subsidiaries" means any
corporation or other organization, whether incorporated or unincorporated,
in which the Company owns, directly or indirectly, any equity or other
ownership interest and which would be deemed to be a "significant
subsidiary" (as such term is defined in Rule 1-02(w) of Regulation S-X
promulgated under the Securities Act of 1933, as amended (the "Securities
Act").
(b) Authorization; Enforcement. The Company has the requisite
corporate power and authority to enter into and to consummate the
transactions contemplated by this Agreement, the Restated Series D
Debentures and the Restated Series D Warrants (collectively, the
"Transaction Documents"), and otherwise to carry out its obligations
hereunder and thereunder including issuance of the Securities (as defined
in Section 2(d) below). The execution and delivery of each of the
Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby (including without limitation,
the issuance of the Restated Series D Debentures and the Restated Series D
Warrants and the issuance and reservation for issuance of the Debenture
Shares (as defined in Section 2(d) below) issuable upon conversion of or
otherwise pursuant to the Restated Series D Debentures and the Warrant
Shares (as defined in Section 2(d) below) issuable upon exercise of or
otherwise pursuant to the Restated Series D Warrants) have been duly
authorized by all necessary corporate action and no further action is
required by the Company, its Board of Directors or its stockholders. Each
of this Agreement and the Transaction Documents has been duly executed by
the Company and when delivered in accordance with the terms hereof will
constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or
by other equitable principles of general application.
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(c) Capitalization. As of the date hereof and immediately prior to the
Closing Date, the authorized and outstanding capital stock and all shares
of capital stock reserved for issuance pursuant to securities (other than
the Restated Series D Debentures and the Restated Series D Warrants)
exercisable for, or convertible into or exchangeable for shares of any of
the capital stock of the Company is, and will be, as set forth on Schedule
2.1(c). The issuance and sale of all interests in such capital stock have
been in compliance with all applicable federal and state securities laws.
No shares of capital stock are entitled to preemptive or similar rights,
nor is any holder of the capital stock entitled to preemptive or similar
rights arising out of any agreement or understanding with the Company by
virtue of any of the Transaction Documents. Except as disclosed on Schedule
2.1(c), other than the Restated Series D Debentures and the Restated Series
D Warrants, there are no outstanding options, warrants, scrip, rights to
subscribe to, calls, puts or commitments of any character whatsoever
relating to securities, rights or obligations convertible into or
exchangeable for, or giving any person any right to subscribe for or
acquire any shares of capital stock, or contracts, commitments,
understandings, or arrangements by which the Company or any Subsidiary is
or may become bound to issue additional shares of capital stock, or
securities or rights convertible or exchangeable into shares of capital
stock. No anti-dilution or similar adjustment provision of securities of
the Company will be triggered by the issuance of the Restated Series D
Debentures, the Restated Series D Warrants, the Debenture Shares or the
Warrant Shares except as described on Schedule 2.1(c). The Company is not
subject (contingent or otherwise) to repurchase or otherwise acquire or
retire any units of its capital stock or any security convertible into or
exchangeable for any of its capital stock. Except as specifically disclosed
in the SEC Documents (as defined below) or except as described on Schedule
2.1(c), to the Company's best knowledge, no Person or group of related
Persons beneficially owns (as determined pursuant to Rule 13d-3 promulgated
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
or has the right to acquire by agreement with or by obligation binding upon
the Company beneficial ownership of in excess of 5% of the Common Stock.
"Person" means an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or
subdivision thereof) or other entity of any kind.
(d) Authorization and Validity; Issuance of Shares. All of the
Restated Series D Debentures and the Restated Series D Warrants have been
duly authorized, and when delivered as contemplated hereby, will be validly
issued, fully paid and non-assessable, free and clear of all liens,
encumbrances and Company rights of first refusal, other than liens and
encumbrances created by the Purchaser (collectively, "Liens") and will not
be subject to any preemptive or similar rights. The shares of Common Stock
issuable upon conversion of or otherwise pursuant to the Restated Series D
Debentures (including, without limitation, such additional shares of Common
Stock, if any, as are issuable as a result of the events described in
Section 2(c) of the Series D Registration Rights Agreement (such shares of
Common Stock being collectively referred to herein as the "Debenture
Shares") and the shares of Common Stock issuable upon exercise of or
otherwise pursuant to the Restated Series D Warrants (the "Warrant Shares"
and, collectively with the Debenture Shares, the "Underlying Shares") are
and will at all times hereafter continue to be duly authorized and reserved
for issuance and the shares of Common Stock, when issued upon conversion of
or otherwise pursuant to the Restated Series D Debentures and upon exercise
of or otherwise pursuant to the Restated Series D Warrants in accordance
with their respective terms, will be validly issued, fully paid and
non-assessable, free and clear of all Liens and will not be subject to any
preemptive or similar rights. The Restated Series D Debentures, Restated
Series D Warrants, Debenture Shares and Warrant Shares are collectively
referred to herein as the "Securities."
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(e) Acknowledgment of Dilution. The Company understands and
acknowledges the potentially dilutive effect to the Common Stock upon
issuance of the Debenture Shares upon conversion of or otherwise pursuant
to the Restated Series D Debentures and upon issuance of the Warrant Shares
upon exercise of or otherwise pursuant to the Restated Series D Warrants.
The Company's directors and executive officers have studied and fully
understand the nature of the Securities being sold hereunder. The Company
further acknowledges that its obligation to issue the Debenture Shares and
Warrant Shares upon conversion of the Restated Series D Debentures or
exercise of the Restated Series D Warrants in accordance with this
Agreement, the Restated Series D Debentures and the Restated Series D
Warrants is absolute and unconditional regardless of the dilutive effect
that such issuance may have on the ownership interests of other
stockholders of the Company. Taking the foregoing into account, the
Company's Board of Directors has determined, in its good faith business
judgment, that the issuance of the Securities hereunder and the
consummation of the transactions contemplated hereby and thereby in the
best interests of the Company and its stockholders.
(f) No Conflicts. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the Company of
the transactions contemplated hereby and thereby (including, without
limitation, the issuance and reservation for issuance of the Debenture
Shares and Warrant Shares) do not and will not (i) conflict with or violate
any provision of the certificate of incorporation, bylaws or other charter
documents of the Company or any of the Subsidiaries, (ii) except as stated
in Section 2.1(g), violate or conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration
or cancellation of, any agreement, indenture, patent, license or instrument
(evidencing a Company or Subsidiary debt or otherwise) to which the Company
or any Subsidiary is a party or by which any property or asset of the
Company or any Subsidiary is bound or affected, or (iii) result in a
violation of any law, rule, regulation, order, judgment, injunction, decree
or other restriction of any court or governmental authority to which the
Company or any Subsidiary is subject (including Federal and state
securities laws and regulations and regulations of any self-regulatory
organizations to which the Company or its securities are subject), or by
which any material property or asset of the Company or any Subsidiary is
bound or affected (except for such conflicts, defaults, terminations,
amendments, accelerations or cancellations that are not reasonably likely,
individually or in the aggregate, to have a Material Adverse Effect).
(g) Consents and Approvals. Except as specifically set forth on
Schedule 2.1(g), neither the Company nor any Subsidiary is required to
obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state,
local or other governmental authority, regulatory agency, self-regulatory
organization or stock market or other person in connection with the
execution, delivery and performance by the Company of the Transaction
Documents or to issue the Restated Series D Debentures and Restated Series
D Warrants in accordance with the terms hereof and to issue the Debenture
Shares upon conversion of or otherwise pursuant to the Restated Series D
Debentures and the Warrant Shares upon exercise of or otherwise pursuant to
the Restated Series D Warrants, other than (i) the filing of an additional
registration statement and prospectus supplement with the SEC pursuant to
Section 3.8 hereof, (ii) the notification(s) or any letter(s) acceptable to
the Nasdaq for the listing of the Underlying Shares on the Nasdaq National
Market (and with any other national securities exchange or market on which
the Common Stock is then listed), and (iii) any filings, notices or
registrations under applicable state securities laws (together with the
consents, waivers, authorizations, orders, notices and filings referred to
on Schedule 2.1(g), the "Required Approvals"). The Company is not in
violation of the listing requirements of the Nasdaq and does not reasonably
anticipate that the Common Stock will be delisted by the Nasdaq in the
foreseeable future. The Company and its Subsidiaries are unaware of any
facts or circumstances which might give rise to any of the foregoing.
(h) Disclosure; Absence of Certain Changes. Neither the Schedules to
this Agreement, the Transaction Documents nor any other information
provided to the Purchaser by the Company in connection with the
transactions contemplated hereby contain, nor did the SEC Documents (as
defined below), when filed, or if amended, when amended, contain any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements made herein and therein, in light of the
circumstances under which they were made, not misleading. Except as
disclosed on Schedule 2.1(h) or the SEC Documents filed on XXXXX at least
one business day prior to the date hereof, since December 31, 2002, there
has been no material adverse change and no material adverse development in
the business, properties, operations, financial condition, liabilities or
results of operations or, insofar as can reasonably be foreseen, prospects
of the Company or the Subsidiaries. The Company has not taken any steps,
and does not currently expect to take any steps, to seek protection
pursuant to any bankruptcy law nor does the Company or any of its
Subsidiaries have any knowledge that its creditors intend to initiate
involuntary bankruptcy proceedings. No event, liability, development or
circumstance has occurred or exists with respect to the Company or its
Subsidiaries or their respective businesses, properties, operations or
financial condition or, insofar as can reasonably be foreseen, prospects,
which has not been publicly announced or disclosed but under applicable
law, rule or regulation, requires public disclosure or announcement by the
Company but which has not been so publicly announced or disclosed (assuming
for this purpose that the Company's reports filed under the Exchange Act
are being incorporated into an effective registration statement filed by
the Company under the Securities Act.)
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(i) SEC Documents; Financial Statements. The Common Stock of the
Company is registered pursuant to Section 12(g) of the Exchange Act. The
Company has filed all reports schedules, forms, statements and other
documents required to be filed by it under the Exchange Act, including
pursuant to Section 13, 14 or 15(d) thereof (all of the foregoing filed
prior to the date hereof and all exhibits included therein and financial
statements and schedules thereto and documents (other than exhibits to such
documents) incorporated by reference therein, being collectively referred
to herein as the "SEC Documents"), on a timely basis or has received a
valid extension of such time of filing and has filed any such SEC Documents
prior to the expiration of any such extension. The Company has made
available to each Purchaser true and complete copies of the SEC Documents,
except for such exhibits and incorporated documents. As of their respective
dates, the SEC Documents complied in all material respects with the
requirements of the Securities Act and the Exchange Act and the rules and
regulations of the SEC promulgated thereunder, and none of the SEC
Documents, when filed, 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. None of the statements made in
any such SEC Documents is, or has been, required to be amended or updated
under applicable law (except for such statements as have been amended or
updated in subsequent filings prior to the date hereof). All material
agreements to which the Company or any Subsidiary is a party or to which
the property or assets of the Company or any Subsidiary are subject have
been filed as exhibits to the SEC Documents to the extent required; neither
the Company nor any of its Subsidiaries is in breach of any agreement where
such breach, individually or in the aggregate, would have a Material
Adverse Effect. The financial statements of the Company included in the SEC
Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC
with respect thereto as in effect at the time of filing. Such financial
statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods
involved, except as may be otherwise specified in such financial statements
or the notes thereto, and fairly present in all material respects the
financial position of the Company as of and for the dates thereof and the
results of operations and cash flows for the periods then ended, subject,
in the case of unaudited statements, to normal year-end audit adjustments.
Except as set forth in the financial statements of the Company included in
the SEC Documents, the Company has no liabilities, contingent or otherwise,
other than (i) liabilities incurred in the ordinary course of business
subsequent to December 31, 2002 and (ii) obligations under contracts and
commitments incurred in the ordinary course of business and not required
under generally accepted accounting principles to be reflected in such
financial statements, which, individually or in the aggregate, are not
material to the financial condition or operating results of the Company.
(j) Broker's Fees. No fees or commissions or similar payments with
respect to the transactions contemplated by this Agreement or the
Transaction Documents have been paid or will be payable by the Company to
any broker, financial advisor, finder, investment banker, or bank. The
Purchaser shall have no obligation with respect to any fees or with respect
to any claims made by or on behalf of other Persons for fees of a type
contemplated in this Section 2.1(j) that may be due in connection with the
transactions contemplated by this Agreement and the Transaction Documents.
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(k) Listing and Maintenance Requirements Compliance. The principal
market on which the Common Stock is currently traded is the Nasdaq National
Market. Except as disclosed on Schedule 2.1(k), the Company has not in the
three years preceding the date hereof received notice (written or oral)
from Nasdaq (or any stock exchange, market or trading facility on which the
Common Stock is or has been listed (or on which it has been quoted)) to the
effect that the Company is not in compliance with the listing or
maintenance requirements of such market or exchange. The Company is not
aware of any facts which would reasonably lead to delisting or suspension
of the Common Stock by Nasdaq. After giving effect to the transactions
contemplated by this Agreement and the Transaction Documents, the Company
believes that it is and will be in compliance with all such maintenance
requirements.
(l) Form S-3 Eligibility. The Company is, and at the Closing Date will
be, eligible to register securities (including the Underlying Shares) for
resale with the SEC on Form S-3 (or any successor form) promulgated under
the Securities Act.
(m) Acknowledgment Regarding Purchaser's Purchase of Securities. The
Company acknowledges and agrees that the Purchaser is acting solely in the
capacity of arm's length purchaser with respect to this Agreement and the
transactions contemplated hereby. The Company further acknowledges that the
Purchaser is not acting as a financial advisor or fiduciary of the Company
(or in any similar capacity) with respect to this Agreement and the
transactions contemplated hereby and that any statement made by the
Purchaser or any of its respective representatives or agents in connection
with this Agreement and the transactions contemplated hereby is not advice
or a recommendation and is merely incidental to the Purchaser's purchase of
the Securities and has not been relied upon by the Company, its officers or
directors in any way. The Company further represents to the Purchaser that
the Company's decision to enter into this Agreement has been based solely
on the independent evaluation of the Company and its representatives and
the representations and warranties of the Purchaser set forth herein.
2.2 Representations and Warranties of the Purchaser. The Purchaser hereby
represents and warrants to the Company as follows:
(a) Organization; Authority. The Purchaser is a limited duration
company duly formed, validly existing and in good standing under the laws
of the jurisdiction of its formation with the requisite power and
authority, corporate or otherwise, to enter into and to consummate the
transactions contemplated hereby and by the Transaction Documents and
otherwise to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement by the Purchaser and the
consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary corporate action and no further action is
required by the Purchaser. This Agreement has been duly executed and
delivered by the Purchaser and constitutes the valid and legally binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights generally and to
general principles of equity.
(b) Residency. The Purchaser is a resident of the jurisdiction set
forth immediately below the Purchaser's name on the signature pages hereto.
ARTICLE III
OTHER AGREEMENTS
3.1 Transfer Restrictions.
(a) If the Purchaser should decide to dispose of the Restated Series D
Debentures, the Restated Series D Warrants, the Debentures Shares or the
Warrant Shares held by it, the Purchaser understands and agrees that it may
do so only (i) pursuant to an effective registration statement under the
Securities Act, (ii) to the Company, (iii) pursuant to an available
exemption from the registration requirements of the Securities Act, or (iv)
pursuant to Rule 144 promulgated under the 1933 Act (or a successor rule)
("Rule 144"). In connection with any transfer of any Restated Series D
Debentures, Restated Series D Warrants, Debenture Shares or Warrant Shares
pursuant to clause (iii) of the preceding sentence, the Company may require
the transferor thereof to provide to the Company a written opinion of
counsel experienced in the area of United States securities laws selected
by the transferor, the form and substance of which opinion shall be
customary for opinions of counsel in comparable transactions, to the effect
that such transfer does not require registration of such transferred
securities under the Securities Act. Notwithstanding the foregoing, the
Company hereby consents to and agrees to register any transfer by the
Purchaser to an "affiliate" (as defined in Rule 144) of the Purchaser,
provided that the transferee certifies to the Company that it is an
"accredited investor" as defined in Rule 501(a) under the Securities Act
and agrees to be bound by the terms of this Agreement and, if applicable,
the Series D Registration Rights Agreement. Such transferee shall have the
rights and obligations of the Purchaser under this Agreement and, if
applicable, the Series D Registration Rights Agreement. Notwithstanding the
foregoing or anything else contained herein to the contrary, the Securities
may be pledged as collateral in connection with a bona fide margin account
or other lending arrangement; provided, however, that upon execution on any
such pledge, the pledgee shall be subject to the restrictions on transfer
of the Securities contained in this Section 3.1.
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(b) The Purchaser agrees to the imprinting, so long as is required by
this Section 3.1(b), of the following legend on the Restated Series D
Debentures, the Restated Series D Warrants, the Debenture Shares and the
Warrant Shares:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT.
Neither the Restated Series D Debentures, the Restated Series D Warrants,
the Debenture Shares, nor the Warrant Shares shall contain the legend set forth
above if (i) the issuance of any of such Securities occurs at any time while a
Registration Statement (as defined in the Series D Registration Rights
Agreement) covering such Securities is effective under the Securities Act, (ii)
in the written opinion of counsel to the Company experienced in the area of
United States securities laws such legend is not required under applicable
requirements of the Securities Act (including judicial interpretations and
pronouncements issued by the staff of the SEC), (iii) such holder provides the
Company with reasonable assurances that such security can be sold pursuant to
Rule 144 and such security is sold pursuant to Rule 144, or (iv) such Restated
Series D Debentures, Restated Series D Warrants, Debenture Shares or Warrant
Shares may be sold pursuant to Rule 144(k). The Company agrees that it will
provide each Purchaser, upon request, with a certificate or certificates
representing Restated Series D Debentures, Restated Series D Warrants, Debenture
Shares or Warrant Shares, free from such legend at such time as such legend is
no longer required hereunder. Purchaser agrees to sell all Restated Series D
Debentures, Restated Series D Warrants and Underlying Shares, including those
from which the legend set forth in this Section 3.1(b) has been removed, in
compliance with all applicable prospectus delivery requirements under the
Securities Act, pursuant to Rule 144 or pursuant to another available exemption
under the Securities Act.
3.2 Stop Transfer Instruction. The Company may make notations on its
records or give instructions to any transfer agent with regard to the
restrictions on transfer set forth in Section 3.1; provided, however, the
Company may not make any notation on its records or give instructions to any
transfer agent of the Company which enlarge the restrictions on transfer set
forth in Section 3.1.
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3.3 Furnishing of Information; Eligibility to Use Form S-3. As long as the
Purchaser owns the Restated Series D Debentures, the Restated Series D Warrants,
the Debenture Shares or the Warrant Shares, the Company will cause the Common
Stock to continue at all times to be registered under 12(g) of the Exchange Act,
will timely file (or obtain extensions in respect thereof and file within the
applicable grace period) all reports required to be filed by the Company after
the date hereof pursuant to Section 13, 14 or 15(d) of the Exchange Act and will
not take any action or file any document (whether or not permitted by the
Exchange Act or the rules thereunder) to terminate or suspend such reporting and
filing obligations. The Company further covenants that it will take such further
action as any holder of the Restated Series D Debentures, the Restated Series D
Warrants, the Debenture Shares or the Warrant Shares may reasonably request, all
to the extent required from time to time to enable such Person to sell the
Restated Series D Debentures, the Restated Series D Warrants, the Debenture
Shares, or the Warrant Shares without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144 promulgated under
the Securities Act. The Company will take all necessary action to continue to
meet, the "registrant eligibility" requirements set forth in the general
instructions to Form S-3.
3.4 Filing of Form 8-K; Press Release. Prior to 5:30 p.m. eastern time on
May 27, 2003, the Company shall file a Form 8-K with the SEC describing the
terms of the transaction contemplated by this Agreement and the Transaction
Documents in the form required by the Exchange Act. Prior to 9:30 a.m. eastern
time on May 27, 2003, the Company shall issue a press release describing the
terms of the transaction contemplated by this Agreement and the Transaction
Documents.
3.5 Effect of Existing Agreements. Notwithstanding anything to the contrary
contained in this Agreement, the Initial Restructuring Agreement, the Series D
Purchase Agreement and the Series D Registration Rights Agreement shall remain
in full force and effect except as expressly modified by this Agreement.
3.6 Listing and Reservation of Debenture Shares and Warrant Shares.
(a) (i) The Company shall promptly prepare and file with Nasdaq (as
well as any other national securities exchange or market on which the
Common Stock is then listed) a Notification Form(s) for Listing of
Additional Shares or a letter(s) acceptable to Nasdaq covering and listing
a number of shares of Common Stock which is at least equal to the aggregate
amount of Underlying Shares that have not been previously listed on Nasdaq
in connection with the issuance of the Amended Series D Debentures and the
Amended Series D Warrants, (ii) take all steps necessary to cause the
Underlying Shares not previously approved for listing on Nasdaq to be
approved for listing on Nasdaq (as well as on any other national securities
exchange or market on which the Common Stock is then listed) as soon as
possible thereafter and (iii) provide to the Purchaser evidence of such
filing(s). So long as any Purchaser owns any of the Securities, the Company
shall maintain, so long as any other shares of Common Stock shall be so
listed, such listing of all Debenture Shares and Warrant Shares from time
to time issuable upon conversion of the Restated Series D Debentures or
exercise of the Restated Series D Warrants. Neither the Company nor any of
its Subsidiaries shall take any action which may result in the delisting or
suspension of the Common Stock on Nasdaq. The Company will obtain and, so
long as any Purchaser owns any of the Securities, maintain the listing and
trading of its Common Stock on Nasdaq, the Nasdaq SmallCap Market ("Nasdaq
SmallCap"), the New York Stock Exchange ("NYSE"), or the American Stock
Exchange ("AMEX") and will comply in all respects with the Company's
reporting, filing and other obligations under the bylaws or rules of the
National Association of Securities Dealers ("NASD") and such exchanges, as
applicable. The Company shall promptly provide to the Purchaser copies of
any notices it receives from Nasdaq regarding the continued eligibility of
the Common Stock for listing on such automated quotation system.
(b) The Company shall reserve 100% of the number of shares of its
authorized but unissued Common Stock which would be issuable upon full
conversion of the Restated Series D Debentures or exercise of the Restated
Series D Warrants. Shares of Common Stock reserved for issuance upon
conversion of the Restated Series D Debentures or exercise of the Restated
Series D Warrants shall be allocated pro rata to each Purchaser in
accordance with the amount of Restated Series D Debentures or exercise of
the Restated Series D Warrants. The Company shall not reduce the number of
shares of Common Stock reserved for issuance upon conversion of or
otherwise pursuant to the Restated Series D Debentures and exercise of or
otherwise pursuant to the Restated Series D Warrants without the consent of
each such Purchaser. If, at any time after the Closing Date, the number of
shares of Common Stock authorized and reserved for issuance is below 100%
of the sum of (x) the number of Debenture Shares issuable upon conversion
of or otherwise pursuant to the Restated Series D Debentures (based on the
Conversion Price (as defined in the Restated Series D Debenture) in effect
from time to time) and (y) the aggregate number of Warrant Shares issued
and issuable upon exercise of or otherwise pursuant to the Restated Series
D Warrants (based on the Exercise Price (as defined in the Restated Series
D Warrants) of the Restated Series D Warrants in effect from time to time),
the Company will promptly take all corporate action necessary to authorize
and reserve a sufficient number of shares, including, without limitation,
calling a special meeting of stockholders to authorize additional shares to
meet the Company's obligations under this Section 3.7(b), in the case of an
insufficient number of authorized shares, and using its best efforts to
obtain stockholder approval of an increase in such authorized number of
shares.
48
3.7 Registration. The Company represents that the Series D Registration
Statement covers the re-sale of the Debenture Shares and the Warrant Shares by
the Purchaser and that such registration remains effective and such shares of
Common Stock are, and will be, freely tradable by the Purchaser; provided that
the number of shares of Common Stock presently registered thereunder is
insufficient to allow for the re-sale of all of the Debenture Shares and Warrant
Shares. The Company acknowledges and agrees that the Series D Registration
Rights Agreement shall remain in full force and effect and that the Debenture
Shares and Warrant Shares shall be covered by such agreement. In accordance with
its obligations pursuant to Section 3(b) of the Series D Registration Rights
Agreement, the Company shall (i) file a prospectus supplement to the Series D
Registration Statement to update the disclosure therein to describe the
transaction contemplated by this Agreement (the "Series D Registration Statement
Supplement") and (ii) if for any reason the Purchaser cannot freely sell the
Debenture Shares or Warrant Shares without restriction or limitation as to
volume pursuant to either (a) the Series D Registration Statement or (b) Rule
144(k) of the Securities Act, file a new Registration Statement (as defined in
the Series D Registration Rights Agreement) to register additional Debenture
Shares (issuable upon conversion of the Restated Series D Debentures) and
Warrant Shares (issuable upon exercise of the Restated Series D Warrants) and
not previously registered under the Series D Registration Statement.
3.8 Transfer Agent Instructions. The Company shall issue irrevocable
instructions to its transfer agent, and any subsequent transfer agent, to issue
certificates, registered in the name of the Purchaser or its nominee(s), for the
Debenture Shares and the Warrant Shares in such amounts as specified from time
to time by each Purchaser to the Company in a form acceptable to the Purchaser
(the "Irrevocable Transfer Agent Instructions"). The Company warrants that no
instruction other than the Irrevocable Transfer Agent Instructions referred to
in this Section 3.8, and stop transfer instructions to give effect to Section
3.1 hereof, prior to registration of the Debenture Shares and the Warrant Shares
under the Securities Act or the date on which the Debenture Shares and Warrant
Shares may be sold without limitation or restriction as to volume pursuant to
Rule 144(k), will be given by the Company to its transfer agent and that the
Debenture Shares and the Warrant Shares shall otherwise be freely transferable
on the books and records of the Company as and to the extent provided in this
Agreement and the Series D Registration Rights Agreement. Nothing in this
Section 3.8 shall affect the Purchaser's obligation and agreement set forth in
Section 3.1(b). If (i) the Purchaser provides the Company with an opinion of
counsel, in form and substance customary for opinions in comparable
transactions, to the effect that a public sale, assignment or transfer of the
Debentures, the Debenture Shares, the Warrants and the Warrant Shares may be
made without registration under the Securities Act or (ii) such Debentures,
Warrants, the Debenture Shares and the Warrant Shares can be sold without
limitation or restriction as to volume pursuant to Rule 144(k) as set forth in
Section 3.9 of this Agreement, the Company shall permit the transfer, and, in
the case of the Debenture Shares and the Warrant Shares, promptly instruct its
transfer agent to issue one or more certificates in such name and in such
denominations as specified by the Purchaser and without any restrictive legend.
In lieu of delivering physical certificates representing the Common Stock to be
issued upon conversion of the Restated Series D Debentures or upon exercise of
the Restated Series D Warrants, provided the Company's transfer agent is
participating in the Depository Trust Company ("DTC") Fast Automated Securities
Transfer program, the Company shall use its best efforts to cause its transfer
agent to electronically transmit the Common Stock issuable upon conversion of
the Restated Series D Debentures and upon exercise of the Restated Series D
Warrants to the Purchaser by crediting the account of Purchaser's Prime Broker
with DTC through its Deposit Withdrawal Agent Commission ("DWAC") system (to the
extent not inconsistent with any provisions of the Series D Purchase Agreement).
If the Company is required to issue certificates representing the Common Stock
to be issued upon conversion of the Restated Series D Debentures or upon
exercise of the Restated Series D Warrants pursuant to this Agreement, such
certificates shall be free from any legend or other restriction on transfer. The
Company acknowledges that a breach by it of its obligations hereunder will cause
irreparable harm to the Purchasers by violating the intent and purpose of the
transactions contemplated hereby. Accordingly, the Company acknowledges that the
remedy at law for a breach of its obligations under this Section 3.8 will be
inadequate and agrees, in the event of a breach or threatened breach by the
Company of the provisions of this Section 3.9, that the Purchaser shall be
entitled, in addition to all other available remedies, to an order and/or
injunction restraining any breach and requiring immediate issuance and transfer,
without the necessity of showing economic loss and without any bond or other
security being required.
49
3.9 Rule 144 Tacking. The Company and the Purchaser acknowledge and agree
that the holding periods of the Restated Series D Debentures and the Restated
Series D Warrants for the Purchaser would be tacked onto the holding periods of
the Series D Debentures and Amended Series D Debentures (with respect to the
Restated Series D Debentures) and the Series D Warrants and the Amended Series D
Warrants (with respect to the Restated Series D Warrants) for purposes of Rule
144 and as a result the holdings periods for the Restated Series D Debentures
and the Restated Series D Warrants commenced on June 29, 2000. The Company will
not challenge Purchaser's position that the holding periods of the Restated
Series D Debentures, the Debenture Shares, the Restated Series D Warrants and
the Warrant Shares (provided the Restated Series D Warrants are exercised in
accordance with Section 3A(ii) thereof) for the Purchaser would be tacked to the
holding period of the Series D Debentures and Amended Series D Debentures (with
respect to the Restated Series D Debentures) and the Series D Warrants and the
Amended Series D Warrants (with respect to the Restated Series D Warrants) for
the purposes of Rule 144 (provided the Restated Series D Warrants are exercised
in accordance with Section 3A(ii) thereof). The Company shall not take any
position which is contrary to, or inconsistent with, those positions expressed
in the first sentence of this Section 3.9. The Company further agrees that it
will take all necessary actions (including, if necessary, but not limited to,
instructing its counsel to issue an opinion to the Transfer Agent) to ensure the
Purchaser is able, under Rule 144, to (i) tack onto the Restated Series D
Debentures and Restated Series D Warrants, (ii) effect sales of the Debenture
Shares and the Warrant Shares under Rule 144 in a manner consistent with such
tacked holding period and (iii) receive Debenture Shares or Warrant Shares free
from any legend or restriction on transfer.
3.10 Certain Sales By Purchaser. From and after the date of this Agreement,
so long as the Purchaser holds the Restated Series D Debentures, the Purchaser
will not (i) engage in any short sale of the Common Stock or (ii) agree to lend
any shares of Common Stock to any other person pursuant to a contractual
obligation for the express purpose of facilitating a short sale of the Common
Stock; provided, however, that the Company understands and agrees that Purchaser
shall be entitled to pledge the Common Stock pursuant to a bona fide margin
account or other lending arrangement in accordance with Section 3.1(a) hereof
and the Purchaser shall have no liability if the pledgee of such shares loans
any such Common Stock in a transaction described in the preceding clause (ii).
ARTICLE IV
CONDITIONS
4.1 Conditions Precedent.
(a) Conditions Precedent to the Obligation of the Company. The
obligation of the Company to consummate the transactions contemplated
hereunder is subject to the satisfaction or waiver (with prior written
notice to the Purchaser) by the Company, at or before the Closing, of each
of the following conditions:
(i) Accuracy of the Purchaser's Representations and Warranties.
The representations and warranties of the Purchaser in this Agreement
shall be true and correct in all material respects as of the date when
made and as of the Closing Date;
(ii) Performance by the Purchaser. The Purchaser shall have
performed, satisfied and complied in all material respects with all
covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Purchaser at or prior to
the Closing; and
(iii) No Injunction. No litigation, statute, rule, regulation,
executive order, decree, ruling or injunction shall have been enacted,
entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby
which prohibits the consummation of any of the transactions
contemplated by this Agreement or the Transaction Documents.
(b) Conditions Precedent to the Obligation of the Purchaser. The
obligations of the Purchaser hereunder are subject to the satisfaction or
waiver (with prior written notice to the Company) by the Purchaser, at or
before the Closing, of each of the following conditions:
(i) Accuracy of the Company's Representations and Warranties. The
representations and warranties of the Company set forth in this
Agreement shall be true and correct in all material respects as of the
date when made and as of the Closing Date;
(ii) Performance by the Company. The Company shall have
performed, satisfied and complied in all material respects with all
covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Company at or prior to
the Closing;
(iii) No Injunction. No litigation, statute, rule, regulation,
executive order, decree, ruling or injunction shall have been enacted,
entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby
which prohibits the consummation of any of the transactions
contemplated by this Agreement and the Transaction Documents;
(iv) No Suspensions of Trading in Common Stock. The trading in
the Common Stock shall not have been suspended by the SEC or on Nasdaq
which suspension shall remain in effect;
(v) Listing of Common Stock. The Common Stock shall have been at
all times since the date hereof, and on the Closing Date shall be,
listed for trading on Nasdaq;
(vi) Required Approvals. All Required Approvals shall have been
obtained;
(vii) Shares of Common Stock. The Company shall have duly
reserved the number of Debenture Shares and Warrant Shares required by
this Agreement and the Transaction Documents to be reserved for
issuance upon conversion of the Restated Series D Debentures and the
exercise of the Restated Series D Warrants;
(viii) Change of Control. No Change of Control shall have
occurred between the date hereof and the Closing Date. "Change of
Control" means the occurrence of any of (i) an acquisition after the
date hereof by an individual or legal entity or "group" (as described
in Rule 13d-5(b)(1) promulgated under the Exchange Act), other than
the Purchaser or any of its Affiliates, of in excess of 50% of the
voting securities of the Company, (ii) a replacement of more than
one-half of the members of the Company's Board of Directors which is
not approved by those individuals who are members of the Board of
Directors on the date hereof in one or a series of related
transactions, (iii) the merger of the Company with or into another
entity, consolidation or sale of all or substantially all of the
assets of the Company in one or a series of related transactions or
(iv) the execution by the Company of an agreement to which the Company
is a party or by which it is bound, providing for any of the events
set forth above in (i), (ii) or (iii); and
50
(ix) Transfer Agent Instructions. The Irrevocable Transfer Agent
Instructions, in a form acceptable to the Purchaser, shall have been
delivered to and acknowledged in writing by the Company's transfer
agent.
(c) Delivery of Documents and Certificates by the Company. At the
Closing, the Company shall have delivered to the Purchaser the following in
form and substance reasonably satisfactory to the Purchaser:
(i) Opinion. An opinion of the Company's legal counsel in the
form attached hereto as "Exhibit C" dated as of the Closing Date;
(ii) Enforceability Opinion. An opinion of the Company's legal
counsel in the state of Delaware in the form attached hereto as
"Exhibit D" dated as of the Closing Date;
(iii) Debenture. A Debenture(s) representing the Restated Series
D Debenture, registered in the name of such Purchaser, each in form
satisfactory to the Purchaser;
(iv) Stock Purchase Warrant. The Restated Series D-1 Warrants and
Restated Series D-2 Warrants, registered in the name of the Purchaser;
(v) Officer's Certificate. An Officer's Certificate dated the
Closing Date and signed by an executive officer of the Company
confirming the accuracy of the Company's representations, warranties
and covenants as of such Closing Date and confirming the compliance by
the Company with the conditions precedent set forth in this Section
4.1 as of the Closing Date;
(vi) Secretary's Certificate. A Secretary's Certificate dated the
Closing Date and signed by the Secretary or Assistant Secretary of the
Company certifying (A) that attached thereto is a true and complete
copy of the Certificate of Incorporation of the Company, as in effect
on the Closing Date, (B) that attached thereto is a true and complete
copy of the by-laws of the Company, as in effect on the Closing Date
and (C) that attached thereto is a true and complete copy of the
resolutions duly adopted by the Board of Directors of the Company
authorizing the execution, delivery and performance this Agreement and
of the Transaction Documents, and that such resolutions have not been
modified, rescinded or revoked; and
(vii) Registration Rights Agreement. The Amendment No. 2 to the
Series D Registration Rights Agreement in the form attached hereto as
"Exhibit E" executed by the Company.
(d) Delivery of Documents by the Purchaser. At the Closing, the
Purchaser shall have delivered to the Company:
(i) the Amended Series D Debentures;
(ii) the Series D-1 Warrants;
(iii) the Series D-2 Warrants; and
(iv) the Amendment No. 2 to the Registration Rights Agreement
executed by the Purchaser.
51
ARTICLE V
MISCELLANEOUS
5.1 Fees and Expenses. Except as set forth in the Series D Registration
Rights Agreement, each party shall pay the fees and expenses of its advisers,
counsel, accountants and other experts, if any, and all other expenses incurred
by such party incident to the negotiation, preparation, execution, delivery and
performance of this Agreement. The Company shall pay all stamp and other taxes
and duties levied in connection with the issuance of the Debenture Shares and
the Warrant Shares pursuant hereto.
5.2 Entire Agreement; Amendments. This Agreement, together with the
Exhibits and Schedules hereto, the Series D Purchase Agreement, the Series D
Registration Rights Agreement, the Initial Restructuring Agreement and the
Transaction Documents contain the entire understanding of the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters.
5.3 Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be deemed to have been received
(a) upon hand delivery (receipt acknowledged) or delivery by telex (with correct
answer back received), telecopy or facsimile (with transmission confirmation
report) at the address or number designated below (if received by 8:00 p.m. EST
where such notice is to be received), or on the first business day following
such delivery (if delivered on a business day after during normal business hours
where such notice is to be received) or (b) on the second business day following
the date of mailing by express courier service, fully prepaid, addressed to such
address, or upon actual receipt of such mailing, whichever shall first occur.
The addresses for such communications are (i) if to the Company to Geron
Corporation, 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000 attention:
Xxxxx Xxxxxxxxx, fax no. (000) 000-0000 with copies to Xxxxxx & Xxxxxxx LLP, 000
Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxxxxx,
Esq., fax no. (000) 000-0000, and (ii) if to the Purchaser to RGC International
Investors, LDC c/o Xxxx Xxxx Capital Management L.P., 0 Xxxx Xxxxx Xxxx, Xxxxx
000, 000 Xx. Xxxxxx Xxxx, Xxxx Xxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxxx
Xxxxxxxxxx; fax no. (000) 000-0000 with copies to Akerman Senterfitt, Xxx
Xxxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxx, Xxxxxxx 00000-0000 attention: Xxxxxx
X. Xxxxxxx, Esq., fax no. (000) 000-0000, or such other address as may be
designated in writing hereafter, in the same manner, by such Person.
5.4 Amendments; Waivers. No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
both the Company and a majority-in-interest of the Purchasers or, in the case of
a waiver, by the party against whom enforcement of any such waiver is sought. No
waiver of any default with respect to any provision, condition or requirement of
this Agreement shall be deemed to be a continuing waiver in the future or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder in any manner
impair the exercise of any such right accruing to it thereafter. Notwithstanding
the foregoing, no such amendment shall be effective to the extent that it
applies to less than all of the holders of the Securities. The Company shall not
offer or pay any consideration to any Purchaser for consenting to such an
amendment or waiver unless the same consideration is offered to each Purchaser
and the same consideration is paid to each Purchaser which consents to such
amendment or waiver.
52
5.5 Headings; Interpretive Matters. The headings herein are for convenience
only, do not constitute a part of this Agreement and shall not be deemed to
limit or affect any of the provisions hereof. No provision of this Agreement
will be interpreted in favor of, or against, any of the parties hereto by reason
of the extent to which any such party or its counsel participated in the
drafting thereof or by reason of the extent to which any such provision is
inconsistent with any prior draft hereof or thereof.
5.6 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and permitted assigns. The
Company may not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Purchasers. The Purchaser may assign
this Agreement or any rights or obligations hereunder without the prior written
consent of the Company; provided, that all assignees must make the
representations and warranties set forth in Section 2.2 and otherwise comply
with the terms of this Agreement otherwise applicable to its assignor. This
provision shall not limit the Purchaser's right to transfer the Securities in
accordance with all of the terms of this Agreement or under the Series D
Registration Rights Agreement.
5.7 No Third-Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
5.8 Governing Law. This Agreement and the Transaction Documents shall be
governed by and interpreted in accordance with the laws of the State of Delaware
applicable to agreements made and to be performed in the State of Delaware
(without regard to principles of conflict laws). Both parties irrevocably
consent to the jurisdiction of the United States federal courts and the state
courts located in Delaware with respect to any suit or proceeding based on or
arising under this Agreement, the Transaction Documents, the agreements entered
into in connection herewith and therewith and the transactions contemplated
hereby or thereby and irrevocably agree that all claims in respect of such suit
or proceeding may be determined in such courts. Both parties irrevocably waive
the defense of an inconvenient forum to the maintenance of such suit or
proceeding. Both parties further agree that service of process upon a party
mailed by first class mail shall be deemed in every respect effective service of
process upon the party in any such suit or proceeding, and the parties herby
expressly waive any defenses to the sufficiency of process or service of process
made in this manner. Nothing herein shall affect either party's right to serve
process in any other manner permitted by law. Both parties agree that a final
non-appealable judgment in any such suit or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on such judgment or in any other
lawful manner.
5.9 Survival. The agreements, covenants, representations, warranties and
provisions contained in this Agreement shall survive the delivery of the
Restated Series D Debentures and the Restated Series D Warrants pursuant to this
Agreement and the Closing hereunder and any conversion of the Restated Series D
Debentures or exercise of the Restated Series D Warrants.
5.10 Execution. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
5.11 Publicity. The Company and the Purchaser shall consult with each
other in issuing any press releases, filings with the SEC, NASD or any stock
exchange or interdealer quotation system or otherwise making public statements
with respect to the transactions contemplated hereby and neither party shall
issue any such press release, filings with the SEC, NASD or any stock exchange
or interdealer quotation system or otherwise make any such public statement
without the prior written consent of the other, which consent shall not be
unreasonably withheld or delayed, except that no prior consent shall be required
to the extent the disclosing party reasonably believes, based on advice of
counsel, that such disclosure is required by law, rule or regulation, in which
such case the disclosing party shall provide the other party with prior notice
of such public statement. The Company shall not otherwise publicly disclose the
names of any of the Purchaser without the Purchaser's prior written consent.
53
5.12 Severability. In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall not
in any way be affected or impaired thereby and the parties will attempt to agree
upon a valid and enforceable provision which shall be a reasonable substitute
therefor, and upon so agreeing, shall incorporate such substitute provision in
this Agreement.
5.13 Remedies. The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to each Purchaser by vitiating
the intent and purpose of the transactions contemplated hereby. Accordingly, the
Company acknowledges that the remedy at law for breach of its obligations
hereunder will be inadequate and agrees, in the event of a breach or threatened
breach by the Company of any of the provisions hereunder, that each Purchaser
shall be entitled, in addition to all other available remedies in law or in
equity, to an injunction or injunctions to prevent or cure breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof, without the necessity of showing economic loss and without
any bond or other security being required. On or before August 22, 2003, the
Purchaser shall have the right to rescind the transactions contemplated by this
Agreement upon a breach of the representation set forth in Section 2.1(h) with
respect to any unconverted portion of the Restated Series D Debentures.
5.14 Payment Set Aside. To the extent that the Company makes a payment or
payments to the Purchaser hereunder or pursuant to the Series D Registration
Rights Agreement or the Purchaser enforces or exercises their rights hereunder
or thereunder, and such payment or payments or the proceeds of such enforcement
or exercise or any part thereof are subsequently invalidated, declared
fraudulent or preferential, set aside, recovered from, disgorged by or are
required to be refunded, repaid or otherwise restored to the Company, a trustee,
receiver or any other Person under any law (including, without limitation, any
bankruptcy law, state or federal law, common law or equitable cause of action),
then to the extent of any such restoration the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full force
and effect as if such payment had not been made or such enforcement or setoff
had not occurred.
5.15 Further Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request to the extent necessary to carry out the
intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
5.16 No Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
54
IN WITNESS WHEREOF, the parties hereto have caused this Restructuring
Agreement to be duly executed by their respective authorized persons as of the
date first indicated above.
GERON CORPORATION
By: /s/ XXXXX X XXXXXXXXX
Name: Xxxxx Xxxxxxxxx
Title: Senior Vice President, Corporate
Development, Chief Financial Officer
RGC INTERNATIONAL INVESTORS, LDC
By: Xxxx Xxxx Capital Management, L.P.,
Investment Manager
By: RGC General Partner Corp., as General
Partner
By: /s/ XXXXXX XXXXXXXXXX
Xxxxxx Xxxxxxxxxx
Managing Director
Residence: Cayman Islands
ADDRESS:
c/o Xxxx Xxxx Capital Management, L.P.
0 Xxxx Xxxxx Xxxx, Xxxxx 000
000 Xx. Xxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
