EXHBIT 4.1
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made and entered
into as of April 22, 2005 (the "Effective Date"), by and between GERON
CORPORATION, a Delaware corporation having its principal place of business at
000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000 (the "Company"), and the
investors listed on Exhibit A hereto, each of which is referred to as an
"Investor" and all of which are collectively referred to herein as the
"Investors".
A. The Company desires to sell and the Investors desire to
purchase shares of the Company's common stock, par value
$0.001 per share (the "Common Stock").
B. In connection with entering into this Agreement, the Company
shall issue to the Investors certain Stock Purchase Warrants
(each, a "Warrant" and collectively, the "Warrants") pursuant
to which the Investors may purchase up to an aggregate of
370,370 additional shares of Common Stock at a price per share
of $7.95 per share (as adjusted for any stock dividends paid
in common stock, and any combinations, stock splits,
recapitalizations and the like each with respect to the Common
Stock). The shares of Common Stock issuable upon exercise of
the Warrants are collectively referred to herein as the
"Warrant Shares."
C. The issuance of the Shares (as defined below), Warrants and
Warrant Shares to the Investors have been registered on the
Company's Registration Statement on Form S-3, Registration No.
333-115195, which was declared effective by the Securities and
Exchange Commission (the "SEC") on June 30, 2004 (the
"Registration Statement").
THE PARTIES AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF COMMON STOCK AND WARRANTS.
1.1 Subject to the terms and conditions of this Agreement, each Investor
agrees, severally but not jointly, to purchase at the Closing, and the
Company agrees to sell and issue to each Investor at the Closing, that
number of shares of Common Stock equal to (x) the Aggregate Purchase
Price (as defined below) divided by the Purchase Price (as defined
below), multiplied by (y) the percentage set forth opposite each
Investor's name on Exhibit A hereto. The shares of Common Stock to be
sold pursuant to this Agreement are collectively referred to herein as
the "Shares," and the Shares, the Warrants and the Warrant Shares are
collectively referred to herein as the "Securities". The Investors
shall purchase the Shares for a per share purchase price equal to
$5.40 (as adjusted for any stock dividends paid in common stock, and
any combinations, stock splits, recapitalizations and the like each
with respect to the Common Stock) (the "Purchase Price"). The
"Aggregate Purchase Price" shall be $4,000,001.40.
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1.2 At the Closing, the Company shall issue a Warrant to each Investor.
Each Warrant shall be exercisable for that number of shares of Common
Stock equal to (x) the Aggregate Purchase Price divided by the
Purchase Price, multiplied by (y) fifty percent (50%), multiplied by
(z) the percentage set forth opposite each Investor's name on Exhibit
A hereto. Each Warrant shall be in substantially the form attached
hereto as Exhibit B.
2. CLOSING; DELIVERY OF COMMON STOCK AND WARRANTS.
2.1 The consummation of the transaction contemplated by this Agreement
(the "Closing") shall be held at such time and place as is mutually
agreed upon between the parties, but in any event no later than the
close of business on April 26, 2005 (the "Closing Date"). At the
Closing, the Company shall deliver to each Investor (i) a certificate
or certificates representing that number of Shares purchased hereunder
and (ii) a Warrant in substantially the form attached hereto as
Exhibit B representing that number of Warrant Shares purchased
hereunder, against payment of the purchase price therefore by wire
transfer of immediately available funds to an account designated by
the Company.
2.2 The Company's obligations to issue and deliver the stock
certificate(s) representing the Shares to the Investors at the Closing
shall be subject to the following conditions, which may be waived by
the Company:
2.2.1 the covenants and obligations that the Investors are 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;
2.2.2 the representations and warranties made by the Investors herein
shall be true and correct in all material respects as of the
Closing Date; and
2.2.3 each Investor shall have entered into a Lock-up Agreement with
the Company, in the form attached hereto as Exhibit C, (each, a
"Lock-up Agreement").
2.3 Each Investor'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
the Investors:
2.3.1 the covenants and obligations that the Company 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 the representation and warranties made by the Company herein
shall be true and correct in all material respects as of any
Closing Date.
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3. INDEMNIFICATION.
3.1 The Company agrees to indemnify and hold harmless each Investor (and
each person, if any, who controls each Investor within the meaning of
Section 15 of the Act, and each officer and director of each Investor)
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 or supplement thereto used in connection with
the offering of the Securities, 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 the
Company 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 an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration
Statement or supplement in reliance upon and in conformity with
written information furnished to the Company by each Investor or such
other person expressly for use in the preparation thereof, or any
misstatement or omission in any prospectus that is corrected in any
subsequent prospectus that was delivered to each Investor prior to the
pertinent sale or sales by each Investor. 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 Securities by
each Investor.
3.2 Each Investor agrees to indemnify and hold harmless the Company (and
each person, if any, who controls the Company within the meaning of
Section 15 of the Act, each officer of the Company who signs the
Registration Statement and each director of the Company) 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: 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 the Company by on behalf of the Investors specifically for use in
preparation of the Registration Statement; provided, however, that the
Investors 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 the Investors and
delivered to the Company prior to the sale from which such loss
occurred, (B) any untrue statement or omission in any prospectus which
is corrected by the Investors in any subsequent prospectus, or
supplement or amendment thereto, and delivered to the Company prior to
the sale or sales from which a loss or liability arose, or (C) any
failure by the Company to fulfill any of its obligations under Section
3.1 hereof.
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3.3 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
3, 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 3 (except to the extent that such omission materially and
adversely affects the indemnifying party's ability to define such
action) or from any liability otherwise than under this Section 3.
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 or could have been a party and indemnification could have
been sought hereunder by such indemnified person, unless such
settlement includes an unconditional release of such indemnified
person from all liability on claims that are the subject matter of
such proceeding.
3.4 The provisions of this Section 3 shall survive the termination of this
Agreement.
4. REPRESENTATIONS AND ACKNOWLEDGEMENT OF THE COMPANY.
The Company hereby represents, warrants and covenants to the Investors
as follow:
4.1 Organization, Good Standing and Qualification. The Company 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. The Company 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.
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4.2 Authorization. All corporate action on the party of Company, its
officers, directors and stockholders necessary for the authorization,
execution and delivery of this Agreement and the Warrants, the
performance of all obligations of Company hereunder and the
authorization, issuance and delivery of the Shares and Warrants has
been taken or will be taken prior to the Closing.
4.3 Valid Issuance of Securities. The Shares and Warrant 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.
4.4 Legal Proceedings and Orders. There is no action, suit, proceeding or
investigation pending or threatened against the Company that questions
the validity of this Agreement or the right of the Company to enter
into this Agreement or to consummate this transactions contemplated
hereby, nor is the Company aware of any basis for any of the forgoing.
The Company 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 the Company
to enter into this Agreement or to consummate the transactions
contemplated hereby.
4.5 Registration Statement. The Registration Statement is effective on the
date hereof and the Company has not received notice that the
Commission has issued or intends to issue a stop order with respect to
the Registration Statement or that the SEC otherwise has suspended or
withdrawn the effectiveness of the Registration Statement, either
temporarily or permanently. The Company currently meets the
"registrant eligibility" requirements set forth in the general
instructions to Form S-3 applicable to both "primary" and "resale"
registrations on Form S-3.
4.6 Consents. Except for filings under federal and applicable state
securities laws and except for Permits (as defined below), the absence
of which either individually or in the aggregate would not have a
material adverse effect on the Company, all permits, consents,
approvals, orders, authorizations of, or declarations to
(collectively, "Permits") or filings with any federal, state, local or
foreign court, governmental or regulatory authority, or other person
(including third party consents) required on the part of the Company
in connection with the execution, delivery or performance of this
Agreement and the consummation of the transactions contemplated herein
have been obtained or will be obtained prior to the Closing Date, and
will be effective as of the Closing Date.
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5. REPRESENTATIONS AND ACKNOWLEDGMENTS OF THE INVESTORS.
EACH INVESTOR hereby represents, warrants, acknowledges and agrees that:
5.1 Governmental Review. Each Investor understands that no United States
federal or state agency or any other government or governmental agency
has passed upon or made any recommendation or endorsement of the
Securities.
5.2 Authorization; Enforcement. Each Investor has full right, power,
authority and capacity to enter into this Agreement and to consummate
the transactions contemplated hereby 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 the Investor enforceable against the
Investor 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.
5.3 Lock-Up Agreement. Each Investor has the full right, power, authority
and capacity to enter into the Lock-up Agreement. Upon execution and
delivery, the Lock-up Agreement constitutes a valid and binding
obligation of the Investor enforceable against the Investor 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.
5.4 Residency. Each Investor is a resident of the jurisdiction set forth
immediately below such Investor's name on the signature pages hereto.
5.5 No Short Position. Each Investor represents and warrants that, as of
the date of this Agreement, it does not have a Short Position. Each
Investor further covenants and agrees that during the period as of the
date hereof and ending two years thereafter, it will not have a Short
Position. A "Short Position" shall mean a position resulting from a
"short sale" as such transaction is described in Rule 200 of
Regulation SHO promulgated under the Securities Exchange Act of 1934,
as amended.
6. LEGENDS. Each Investor acknowledges that, to the extent applicable,
each certificate evidencing the Securities shall be endorsed with a
legend that states that the Securities are subject to the Lock-up
Agreement.
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7. TAX ADVICE. Each Investor acknowledges that such Investor has not
relied and will not rely upon the Company or the Company's counsel with
respect to any tax consequences related to the ownership, purchase, or
disposition of the Securities. Each Investor 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 Securities.
8. LEGAL ADVICE. Each Investor has independently consulted with the
respective counsel of each and after such consultation has deemed this
investment to be advisable and this Agreement to be reasonable and
proper.
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 the Company at: Geron Corporation
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the Investors at: The addresses set forth on Exhibit A.
10. BINDING EFFECT. This Agreement shall be binding upon the heirs, legal
representatives and successors of the Company and each Investor;
provided, however, that each Investor may not assign any rights or
obligations under this Agreement.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
12. INVALID PROVISIONS. In the event that any provision of this Agreement
is found to be invalid or otherwise unenforceable by a court or other
tribunal of competent jurisdiction, such invalidity or unenforceability
shall not be construed as rendering any other provision contained
herein invalid or unenforceable, and all such other provisions shall be
given full force and effect to the same extent as though the invalid
and unenforceable provision was not contained herein.
13. COUNTERPARTS. This Agreement may be executed in any number of identical
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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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, including the Warrant attached
hereto, constitute the entire agreement of the parties pertaining to
the Securities and supersede all prior and contemporaneous agreements,
representations, and understandings of the parties with respect
thereto.
(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties hereto have executed this Common Stock
Purchase Agreement as of the date first above written.
Geron Corporation
/s/ Xxxxx X. Xxxxxxxxx
---------------------------
By: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
Investors:
Island Investments (Securities) Limited,
(a BVI registered company)
/s/ X. Xxxxxxx
-------------------------------------------
By: X. Xxxxxxx
Title: Director
Search Investment Office Limited
(Incorporated in the British Virgin Islands)
For and on behalf of Search Investment Office Limited
/s/ Authorized Signer
---------------------
By:
Title:
Luen Po (BVI) Company Limited
For and on behalf of Luen Po (BVI) Company Limited
/s/ Authorized Signer
---------------------
By:
Title:
Golden Step Limited
/s/ Xxxxxxx X. Xxxx
-------------------------
By: XXXXXXX X. XXXX
Title: Director
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Best Manage Holdings, Ltd.
/s/ Xxxxxxxx Xxxx
--------------------------
By: XXXXXXXX XXXX
Title: DIRECTOR
Xxxxxxx X. Xxxxxx XX, Trustee of the Xxxxxxx X.
Xxxxxx XX Living Trust
/s/ Xxxx Xxxxxx
-------------------------
By: Xx. Xxxx Xxxxxx
Title: Attorney-in-fact
Hillsearch Corporation
/s/ Xxxxx X. Xxxxxxxx
---------------------
By: XXXXX X. XXXXXXXX
Title:
Xxxxx X. Xxxxx
/s/ Xxxxx Xxxxx
---------------
Xxxxx Xxxxx
/s/ Xxxxx Xxxxx
---------------
Xxxxxxx X.X. Ch'ien
/s/ Xxxxxxx X.X. Xxxxx
----------------------
2
Grandland Ventures Ltd.
/s/ Xxxxxxx Xxxx
----------------
By: Xxxxxxx Xxxx
Title: CEO
Xxx X. Xxxxxx
/s/ Xxx X. Xxxxxx
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