EXHIBIT 4.1
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into as
of October 6, 2006 (the "EFFECTIVE DATE"), by and between GERON CORPORATION, a
Delaware corporation having its principal place of business at 000 Xxxxxxxxxxxx
Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000 ("Geron"), and Cambrex Bio Science
Walkersville, Inc., a Delaware corporation having its principal place of
business at 0000 Xxxxx Xxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000 ("CBSW").
Capitalized terms not otherwise defined herein shall have the meaning set forth
in the MSA and Project Order No. 1.
X. Xxxxx and CBSW are the parties to that certain Master Services
Agreement, dated as of September 1, 2005 (the "MSA"), pursuant
to which CBSW has agreed to perform certain services on behalf
of Geron related to the manufacture of a product containing
human cells intended for therapeutic use in humans on the
terms set forth therein.
X. Xxxxx and CBSW entered into Project Order No. 1 to the MSA
(the "Project Order No. 1") effective September 1, 2005,
pursuant to which Geron is entitled, subject to certain
conditions, to pay any compensation owed to CBSW for Services
performed under Project Order No. 1 either in cash or in
Geron's common stock (the "COMMON STOCK").
C. Subject to the terms and conditions of the Second Amendment to
Project Order No.1, dated as of March 1, 2006 ("Amendment No.
2"), Geron and CBSW have agreed that Geron shall, subject to
certain conditions, be entitled to pay up to US$4,500,000 for
Services under Project Order No. 1 by delivery of Shares, to
be delivered in installment payments of not more than
US$1,000,000 each.
THE PARTIES AGREE AS FOLLOWS:
1. ISSUANCE OF SHARES; ADJUSTMENTS.
1.1 As payment of the third Installment Payment specified in Project
Order No. 1, Geron will issue and deliver certificates for
161,238 shares of Common Stock (the "SHARES"). Upon issuance and
delivery of the certificate(s) for the Shares, all Shares shall
be duly authorized and validly issued and represent fully paid
shares of Geron's Common Stock.
2. CLOSING; DELIVERY.
2.1 The consummation of the transaction contemplated by this
Agreement (a "Closing") shall be held at such time and place as
is mutually agreed upon between the parties, but in any event no
later than five (5) business days after the Effective Date of
this Agreement (the "Closing Date"). At the Closing, Geron shall
deliver to CBSW one or more certificates representing all of the
Shares, which Shares shall be issued in the name of CBSW or its
designee and in such denominations as CBSW shall specify.
2.2 Geron's obligations to issue and deliver the stock
certificate(s) representing the Shares to CBSW at the Closing
shall be subject to the following conditions, which may be
waived by Geron:
2.2.1 the covenants and obligations that CBSW is required to
perform or to comply with pursuant to this Agreement,
at or prior to the Closing, must have been duly
performed and complied with in all material respects;
and
2.2.2 the representations and warranties made by CBSW herein
shall be true and correct in all material respects as
of the Closing Date.
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2.3 CBSW's obligation to accept delivery of the stock certificate(s)
representing the Shares at the Closing shall be subject to the
following conditions, any one or more of which may be waived by
CBSW:
2.3.1 the covenants and obligations that Geron is required to
perform or to comply with pursuant to this Agreement,
at or prior to the Closing, must have been duly
performed and complied with in all material respects;
2.3.2 Geron shall have available under its Certificate of
Incorporation sufficient authorized shares of Common
Stock to issue the Shares to CBSW; and
2.3.3 the representations and warranties made by Geron herein
shall be true and correct in all material respects as
of the Closing Date.
3. RESTRICTIONS ON RESALE OF SHARES.
3.1 Legends. CBSW understands and acknowledges that the Shares are
not registered under the Securities Act of 1933 (the "Act"), and
that under the Act and other applicable laws CBSW may be
required to hold such Shares for an indefinite period of time.
Each stock certificate representing Shares shall bear the
following legends:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). ANY
TRANSFER OF SUCH SECURITIES SHALL BE INVALID UNLESS A
REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH
TRANSFER OR, IN THE OPINION OF COUNSEL REASONABLY ACCEPTABLE TO
GERON, SUCH REGISTRATION IS UNNECESSARY FOR SUCH TRANSFER TO
COMPLY WITH THE ACT. THE SECURITIES REPRESENTED HEREBY ARE
SUBJECT TO THE TERMS OF THE COMMON STOCK PURCHASE AGREEMENT BY
AND BETWEEN GERON AND CBSW, DATED OCTOBER 6, 2006. A COPY OF THE
AGREEMENT CAN BE OBTAINED FROM THE SECRETARY OF GERON."
3.2 Limits on Sales. CBSW agrees that if it decides to resell some
or all of the Shares, it will do so only in an appropriate
manner through orderly sales executed through a top-tier
brokerage firm, and based upon whether the shares are registered
or unregistered, i.e., on the Nasdaq National Market or in a
Rule 144A compliant transaction.
3.3 Further Limitations. Geron shall not be required (i) to transfer
on its books any Shares that have been sold or otherwise
transferred in violation of any of the provisions of this
Agreement or applicable securities laws; or (ii) to treat as
owner of such Shares or to accord the right to vote or pay
dividends to any purchaser or other transferee to whom such
Shares shall have been so transferred in violation of any of the
provisions of this Agreement or applicable securities laws.
4. REGISTRATION RIGHTS
4.1 Geron agrees to make commercially reasonable efforts to file
with the Securities and Exchange Commission (the "Commission")
within ten (10) business days after the Closing Date, a
registration statement under the Act (the "Registration
Statement"), on Form S-3 or other appropriate form, so as to
permit a non-underwritten public offering and resale of the
Shares under the Act by CBSW. Geron agrees to diligently pursue
making the Registration Statement effective. Geron will make
commercially reasonable efforts to notify CBSW of the
effectiveness of the Registration Statement within one (1)
business day of receiving notice from the Commission declaring
the Registration Statement effective, but no later than the
close of business (Pacific Time) of the second business day
after receipt of such notice from the Commission.
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4.2 Geron shall notify CBSW as promptly as possible of any review
initiated by the Commission with respect to any such
Registration Statement.
4.3 Geron will maintain the Registration Statement and any
post-effective amendment thereto filed under this Section 4
effective under the Act until the earliest of (i) the date that
none of the Shares covered by such Registration Statement are
issued and outstanding, (ii) the date that all of the Shares
have been sold pursuant to such Registration Statement, (iii)
the date CBSW receives an opinion of counsel to Geron, which
counsel shall be reasonably acceptable to CBSW, that the Shares
may be sold under the provisions of Rule 144, (iv) the date that
all Shares have been otherwise transferred to persons who may
trade such shares without restriction under the Act, and Geron
has delivered a new certificate or other evidence of ownership
for such securities not bearing a restrictive legend, or (v) the
date all Shares may be sold at any time pursuant to Rule 144(k)
or any similar provision then in effect under the Act in the
opinion of counsel to Geron, which counsel shall be reasonably
acceptable to CBSW.
4.4 Geron, at its expense, shall furnish to CBSW with respect to the
Shares registered under the Registration Statement such
reasonable number of copies of the Registration Statement,
prospectuses and preliminary prospectuses in conformity with the
requirements of the Act and such other documents as CBSW may
reasonably request, in order to facilitate the public sale or
other disposition of all or any of the Shares by CBSW, provided,
however, that the obligation of Geron to deliver copies of
prospectuses or preliminary prospectuses to CBSW shall be
subject to the receipt by Geron of reasonable assurances from
CBSW that CBSW will comply with the applicable provisions of the
Act and of such other securities or blue sky laws as may be
applicable in connection with any use of such prospectuses or
preliminary prospectuses.
4.5 All fees, disbursements and out-of-pocket expenses and costs
incurred by Geron in connection with the preparation and filing
of the Registration Statement under Section 4.1 and in complying
with applicable securities and Blue Sky laws (including, without
limitation, all attorneys' fees of Geron) shall be borne by
Geron. CBSW shall bear the cost of all fees and expenses of
CBSW's counsel.
4.6 Geron will advise CBSW promptly after it shall receive notice or
obtain knowledge of the issuance of any stop order by the
Commission delaying or suspending the effectiveness of the
Registration Statement or of the initiation of any proceeding
for that purpose, and Geron will use its commercially reasonable
efforts to prevent the issuance of any stop order or to obtain
its withdrawal as promptly as possible if such stop order should
be issued.
4.7 With a view to making available to CBSW the benefits of Rule 144
(or its successor rule) and any other rule or regulation of the
Commission that may at the time permit CBSW to sell the Shares
to the public without registration, Geron covenants and agrees
to: (i) make and keep public information available, as those
terms are understood and defined in Rule 144, until the earliest
of (A) such date as all of the Shares may be resold pursuant to
Rule 144(k) or any other rule of similar effect or (B) such date
as all of the Shares shall have been resold; and (ii) file with
the Commission in a timely manner all reports and other
documents required of Geron under the Act and under the Exchange
Act of 1934, as amended.
4.8 CBSW will cooperate with Geron in all respects in connection
with this Agreement, including timely supplying all information
reasonably requested by Geron (which shall include all
information regarding CBSW and proposed manner of sale of the
Shares required to be disclosed in any Registration Statement)
and executing and returning all documents reasonably requested
in connection with the registration and sale of the Shares and
entering into and performing their obligations under any
underwriting agreement, if the offering is an underwritten
offering, in usual and customary form, with the managing
underwriter or underwriters of such underwritten offering.
Nothing in this Agreement shall obligate CBSW to consent to be
named as an underwriter in any Registration Statement.
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5. INDEMNIFICATION.
5.1 Geron agrees to indemnify and hold harmless CBSW (and each
person, if any, who controls CBSW within the meaning of Section
15 of the Act, and each officer and director of CBSW) against
any and all losses, claims, damages or liabilities (or actions
or proceedings in respect thereof), joint or several, directly
or indirectly based upon or arising out of (i) any untrue
statement or alleged untrue statement of any material fact
contained in the Registration Statement, any preliminary
prospectus, final prospectus or summary prospectus contained
therein or used in connection with the offering of the Shares,
or any amendment or supplement thereto, or (ii) any omission or
alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and Geron will reimburse each such indemnified party
for any legal or any other expenses reasonably incurred by them
in connection with investigating, preparing, pursuing or
defending any such loss, claim, damage, liability, action or
proceeding, except insofar as any such loss, claim, damage,
liability, action, proceeding or expense arises out of or is
based upon (A) an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration
Statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and
in conformity with written information furnished to Geron by
CBSW or such other person expressly for use in the preparation
thereof, (B) the failure of CBSW to comply with its covenants
and agreements contained in Sections 7.1 or 7.5.2 hereof or (C)
any misstatement or omission in any prospectus that is corrected
in any subsequent prospectus that was delivered to CBSW prior to
the pertinent sale or sales by CBSW. Such indemnity shall remain
in full force and effect, regardless of any investigation made
by such indemnified party and shall survive the transfer of the
Shares by CBSW.
5.2 CBSW agrees to indemnify and hold harmless Geron (and each
person, if any, who controls Geron within the meaning of Section
15 of the Act, each officer of Geron who signs the Registration
Statement and each officer and director of Geron) from and
against losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), joint or several, directly or
indirectly based upon or arising out of, (i) any failure of CBSW
to comply with the covenants and agreements contained in
Sections 7.1 and 7.5.2 hereof or (ii) any untrue statement of a
material fact contained in the Registration Statement or any
omission of a material fact required to be stated in the
Registration Statement or necessary in order to make the
statements in the Registration Statement not misleading if such
untrue statement or omission was made in reliance upon and in
conformity with written information furnished to Geron by or on
behalf of CBSW specifically for use in preparation of the
Registration Statement; provided, however, that CBSW shall not
be liable in any such case for (A) any untrue statement or
omission in the Registration Statement, prospectus, or other
such document which statement is corrected by CBSW and delivered
to Geron prior to the sale from which such loss occurred, (B)
any untrue statement or omission in any prospectus which is
corrected by CBSW in any subsequent prospectus, or supplement or
amendment thereto, and delivered to Geron prior to the sale or
sales from which a loss or liability arose, or (C) any failure
by Geron to fulfill any of its obligations under Section 5.1
hereof.
5.3 Promptly after receipt by any indemnified person of a notice of
a claim or the beginning of any action in respect of which
indemnity is to be sought against an indemnifying person
pursuant to this Section 5, such indemnified person shall notify
the indemnifying person in writing of such claim or of the
commencement of such action, but the omission to so notify the
indemnifying party will not relieve it from any liability which
it may have to any indemnified party under this Section 5
(except to the extent that such omission materially and
adversely affects the indemnifying party's ability to defend
such action) or from any liability otherwise than under this
Section 5. Subject to the provisions hereinafter stated, in case
any such action shall be brought against an indemnified person,
the indemnifying person shall be entitled to participate
therein, and, to the extent that it shall elect by written
notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party,
shall be entitled to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified person. After notice
from the indemnifying person to such indemnified person of its
election to assume the defense thereof, such indemnifying person
shall not be liable to such indemnified person for any legal
expense subsequently incurred by such indemnified person in
connection with the defense thereof, provided, however, that if
there exists or shall exist a conflict of interest that would
make inappropriate, in the reasonable opinion of counsel to the
indemnified person, for the same counsel to represent both the
indemnified person and such indemnifying person or any affiliate
or associate thereof, the indemnified person shall be entitled
to retain its own counsel at the expense of such indemnifying
person; provided, however, that no indemnifying person shall be
responsible for the fees and expenses of more than one separate
counsel (together with appropriate local counsel) for all
indemnified parties. In no event shall any indemnifying person
be liable in respect to any amounts paid in settlement of any
action unless the indemnifying person shall have approved the
terms of such settlement. No indemnifying person shall, without
the prior written consent of the indemnified person, effect any
settlement of any pending or threatened proceeding in respect of
which any indemnified person is a party, unless such settlement
includes an unconditional release of such indemnified person
from all liability on claims that are the subject matter of such
proceeding.
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5.4 The provisions of this Section 5 shall survive the
termination of this Agreement.
6. REPRESENTATIONS AND ACKNOWLEDGEMENT OF GERON.
Geron hereby represents, warrants and covenants to CBSW as follow:
6.1 Organization, Good Standing and Qualification. Geron is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all
requisite corporate power and authority to carry on its business
as now conducted and as presently proposed to be conducted.
Geron is duly qualified to transact business and is in good
standing as a foreign corporation in each jurisdiction in which
the failure to so qualify would have a material adverse effect
on its business or properties.
6.2 Authorization. Geron has full right, power, authority and
capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and thereby and has taken all
necessary action to authorize the execution, delivery and
performance of this Agreement. Upon execution and delivery, this
Agreement will constitute a valid and binding obligation of
Geron enforceable against Geron in accordance with its terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer, liquidation or similar laws relating to, or affecting
generally, the enforcement of creditor's rights and remedies or
by other equitable principles of general application from time
to time in effect.
6.3 Valid Issuance of Common Stock. The Shares, when issued, sold
and delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly and validly
authorized and issued, fully paid and nonassessable and free of
restrictions on transfer other than restrictions on transfer
under this Agreement and applicable state and federal securities
laws.
6.4 Legal Proceedings and Orders. There is no action, suit,
proceeding or investigation pending or threatened against Geron
that questions the validity of this Agreement or the right of
Geron to enter into this Agreement or to consummate the
transactions contemplated hereby, nor is Geron aware of any
basis for any of the foregoing. Geron is neither a party nor
subject to the provisions of any order, writ, injunction,
judgment or decree of any court or government agency or
instrumentality that would affect the ability of Geron to enter
into this Agreement or to consummate the transactions
contemplated hereby.
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7. REPRESENTATIONS AND ACKNOWLEDGMENTS OF CBSW.
CBSW hereby represents, warrants, acknowledges and agrees that:
7.1 Investment. CBSW is acquiring the Shares for CBSW's own account,
and not directly or indirectly for the account of any other
person. CBSW is acquiring the Shares for investment and not with
a view to distribution or resale thereof, except in compliance
with the Act and any applicable state law regulating securities.
7.2 Access to Information. CBSW has consulted with its own attorney,
accountant, or investment advisor as CBSW has deemed advisable
with respect to the investment and has determined its
suitability for CBSW. CBSW has had the opportunity to ask
questions of, and to receive answers from, appropriate executive
officers of Geron with respect to the terms and conditions of
the transactions contemplated hereby and with respect to the
business, affairs, financial condition and results of operations
of Geron. CBSW has had access to such financial and other
information as is necessary in order for CBSW to make a fully
informed decision as to investment in Geron, and has had the
opportunity to obtain any additional information necessary to
verify any of such information to which CBSW has had access.
CBSW acknowledges that neither Geron nor any of its officers,
directors, employees, agents, representatives, or advisors have
made any representation or warranty other than those
specifically expressed herein.
7.3 Business and Financial Expertise. CBSW further represents and
warrants that it has such business or financial expertise as to
be able to evaluate its investment in Geron and purchase of the
Shares.
7.4 Speculative Investment. CBSW acknowledges that the investment in
Geron represented by the Shares is highly speculative in nature
and is subject to a high degree of risk of loss in whole or in
part; the amount of such investment is within CBSW's risk
capital means and is not so great in relation to CBSW's total
financial resources as would jeopardize the personal financial
needs of CBSW in the event such investment were lost in whole or
in part.
7.5 Unregistered Securities. CBSW acknowledges that:
7.5.1 CBSW must bear the economic risk of investment for an
indefinite period of time because the Shares have not
been registered under the Act and therefore cannot
and will not be sold unless they are subsequently
registered under the Act or an exemption from such
registration is available. Geron has made no
agreements, covenants or undertakings whatsoever to
register any of the Shares under the Act, except as
provided in Section 4 above. Geron has made no
representations, warranties or covenants whatsoever
as to whether any exemption from the Act, including,
without limitation, any exemption for limited sales
in routine brokers' transactions pursuant to Rule 144
under the Act, will become available and any such
exemption pursuant to Rule 144, if available at all,
will not be available unless: (i) a public trading
market then exists in Geron's Common Stock, (ii)
Geron has complied with the information requirements
of Rule 144, and (iii) all other terms and conditions
of Rule 144 have been satisfied.
7.5.2 Transfer of the Shares has not been registered or
qualified under any applicable state law regulating
securities and, therefore, the Shares cannot and will
not be sold unless they are subsequently registered
or qualified under any such act or an exemption
therefrom is available. Geron has made no agreements,
covenants or undertakings whatsoever to register or
qualify any of the Shares under any such act. Geron
has made no representations, warranties or covenants
whatsoever as to whether any exemption from any such
act will become available.
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7.5.3 CBSW hereby certifies that it is an "ACCREDITED
INVESTOR" as that term is defined in Rule 501 under
the Act.
7.6 Authorization. CBSW has full right, power, authority and
capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and thereby and has taken all
necessary action to authorize the execution, delivery and
performance of this Agreement. Upon execution and delivery, this
Agreement will constitute a valid and binding obligation of CBSW
enforceable against CBSW in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer,
liquidation or similar laws relating to, or affecting generally,
the enforcement of creditor's rights and remedies or by other
equitable principles of general application from time to time in
effect.
8. TAX ADVICE. CBSW acknowledges that CBSW has not relied and will not rely
upon Geron or Geron's counsel with respect to any tax consequences
related to the ownership, purchase, or disposition of the Shares. CBSW
assumes full responsibility for all such consequences and for the
preparation and filing of all tax returns and elections which may or must
be filed in connection with the Shares.
9. NOTICES. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been duly given
on the date of delivery if delivered personally or by facsimile, or one
day, not including Saturdays, Sundays, or national holidays, after
sending if sent by national overnight delivery service, or five days, not
including Saturdays, Sundays, or national holidays, after mailing if
mailed by first class United States mail, certified or registered with
return receipt requested, postage prepaid, and addressed as follows:
To Geron at: Geron Corporation
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Geron Corporation
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Senior Director, Legal
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To CBSW at: Cambrex Bio Science Walkersville
0000 Xxxxx Xxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: VP of Business Development
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Cambrex Corporation
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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10. BINDING EFFECT. This Agreement shall be binding upon the heirs, legal
representatives and successors of Geron and of CBSW.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect
to its conflicts of laws provisions.
12. INVALID PROVISIONS. In the event that any provision of this Agreement is
found to be invalid or otherwise unenforceable by a court or other
tribunal of competent jurisdiction, such invalidity or unenforceability
shall not be construed as rendering any other provision contained herein
invalid or unenforceable, and all such other provisions shall be given
full force and effect to the same extent as though the invalid and
unenforceable provision was not contained herein.
13. COUNTERPARTS. This Agreement may be executed in any number of identical
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14. AMENDMENTS. This Agreement or any provision hereof may be changed,
waived, or terminated only by a statement in writing signed by the party
against whom such change, waiver or termination is sought to be enforced.
15. FUTURE COOPERATION. Each of the parties hereto agrees to cooperate at all
times from and after the date hereof with respect to all of the matters
described herein, and to execute such further assignments, releases,
assumptions, amendments of the Agreement, notifications and other
documents as may be reasonably requested for the purpose of giving effect
to, or evidencing or giving notice of, the transactions contemplated by
this Agreement.
16. ENTIRE AGREEMENT. This Agreement, and the MSA, and Project Order No. 1
thereto, constitute the entire agreement of the parties pertaining to the
Shares and supersede all prior and contemporaneous agreements,
representations, and understandings of the parties with respect thereto.
REST OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the Effective Date.
GERON CORPORATION
/s/ Xxxxx X. Xxxxxxxxx
----------------------
By: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President and Chief Financial Officer
CAMBREX BIO SCIENCE WALKERSVILLE, INC.
/s/ Xxxxx Xxxxxxxx
------------------
By: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
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