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EXHIBIT 99.1
SECURITIES PURCHASE AGREEMENT
Between
GERON CORPORATION
and
RGC INTERNATIONAL INVESTORS, LDC
Dated as of September 30, 1999
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SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "AGREEMENT") is dated
as of September 30, 1999, 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, subject to the terms and conditions set forth in this
Agreement, the Company desires to issue and sell to the Purchaser, and the
Purchaser desires to acquire from the Company, an aggregate of Twelve Million
Five Hundred Thousand Dollars ($12,500,000) in principal amount of Series C Two
Percent (2%) Convertible Debentures, in the form attached hereto as EXHIBIT "A"
(the "DEBENTURES"), and warrants, in the forms attached hereto as EXHIBITS "B-1"
and "B-2" (the "WARRANTS"), to purchase up to One Million One Hundred Thousand
(1,100,000) shares of the Company's common stock, par value $.001 per share (the
"COMMON STOCK").
WHEREAS, contemporaneous with the execution and delivery of
this Agreement, the parties hereto are executing and delivering a Registration
Rights Agreement, in the form attached hereto as EXHIBIT "C" (the "REGISTRATION
RIGHTS AGREEMENT"), pursuant to which the Company has agreed to provide certain
registration rights under the Securities Act of 1933, as amended (the
"SECURITIES ACT") and the rules and regulations promulgated thereunder, and
applicable state securities laws.
IN CONSIDERATION of the mutual covenants contained in this
Agreement, the Company and each Purchaser agree as follows:
ARTICLE 1
PURCHASE AND SALE OF THE DEBENTURES AND WARRANTS
1.1 PURCHASE AND SALE. Subject to the terms and conditions set forth
herein, the Company shall issue and sell to the Purchaser, and the Purchaser
shall purchase from the Company on the Closing Date (as defined below), the
Debentures and the Warrants for an aggregate purchase price of $12,500,000 (the
"PURCHASE PRICE").
1.2 THE CLOSING. The closing of the purchase and sale of the Debentures
and Warrants (the "CLOSING") shall take place at the offices of Xxxxxx, Xxxxx &
Xxxxxxx LLP, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 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 Purchaser shall deliver to the Company the Purchase Price
in United States dollars in immediately available funds to an account designated
in writing by the Company;
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(b) The Company shall deliver to the Purchaser the Debentures;
(c) The Company shall deliver to the Purchaser the Warrants;
(d) The parties shall execute and deliver each of the documents
referred to in Section 4.1 hereof; and
(e) The Company shall reimburse Xxxx Xxxx Capital Management, L.P.
("Xxxx Xxxx") for all expenses reasonably incurred by it in connection with the
negotiation, preparation, execution, delivery and performance of this Agreement
and the other agreements to be executed in connection herewith, including,
without limitation, attorneys' and consultants' fees and expenses and travel
expenses. The Company's obligation to reimburse Rose Glen's expenses under this
Section 1.2(e) shall be limited to Twenty-Five Thousand Dollars ($25,000).
ARTICLE 2
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
obligation under this Agreement, the Registration Rights Agreement, the
Debentures or the 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).
(b) AUTHORIZATION; ENFORCEMENT. The Company has the requisite
corporate power and authority to enter into and to consummate the transactions
contemplated by this
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Agreement and the Debentures, the Warrants and the Registration Rights Agreement
(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 this
Agreement and 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 Debentures and the 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 Debentures and
the Warrant Shares (as defined in Section 2(d) below) issuable upon exercise of
or otherwise pursuant to the 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.
(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
Debentures and the 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 this Agreement or the Transaction Documents. Except as
disclosed on Schedule 2.1(c), other than the Debentures and the 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 Debentures, the 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), 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.
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(d) AUTHORIZATION AND VALIDITY; ISSUANCE OF SHARES. All of the
Debentures and the Warrants have been duly authorized, and when delivered
against payment therefor 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 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 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 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
Debentures and upon exercise of or otherwise pursuant to the Warrants in
accordance with their respective terms, will be validly issued, fully paid and
non-assessable, free and clear of all Liens. The Debentures, Warrants, Debenture
Shares and Warrant Shares are collectively referred to herein as the
"SECURITIES."
(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
Debentures and upon issuance of the Warrant Shares upon exercise of or otherwise
pursuant to the 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 Debenture Shares
and Warrant Shares upon conversion of the Debentures or exercise of the Warrants
in accordance with this Agreement, the Debentures and the 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 judgement, 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 this
Agreement and 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 (other than the issuance of additional
authorized shares of Common Stock pursuant to Section 3.17 of this Agreement),
(ii) subject to obtaining the consents referred to 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
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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 this Agreement or the Transaction Documents or to
issue and sell the Debentures and Warrants in accordance with the terms hereof
and to issue the Debenture Shares upon conversion of or otherwise pursuant to
the Debentures and the Warrant Shares upon exercise of or otherwise pursuant to
the Warrants, other than (i) the filing of a registration statement with the
Securities and Exchange Commission (the "COMMISSION"), which shall be filed in
accordance with and in the time periods set forth in the Registration Rights
Agreement, (ii) the notification(s) or any letter(s) acceptable to the Nasdaq
Stock Market ("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) LITIGATION; PROCEEDINGS. Except as specifically set forth on
Schedule 2.1(h), there is no action, suit, notice of violation, proceeding or
investigation pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its Subsidiaries or any of their respective
properties before or by any court, governmental or administrative agency or
regulatory authority (federal, state, county, local or foreign) which (i)
adversely affects or challenges the legality, validity or enforceability of any
of this Agreement or the Transaction Documents or (ii) would individually or in
the aggregate, have a Material Adverse Effect. The Company and its Subsidiaries
are unaware of any facts or circumstances which might give rise to any of the
foregoing. Schedule 2.1(h) contains a complete list and summary description of
any pending or, to the knowledge of the Company, threatened proceeding against
or affecting the Company or any of its Subsidiaries, without regard to whether
it would have a Material Adverse Effect.
(i) NO DEFAULT OR VIOLATION. Neither the Company nor any of its
Subsidiaries is in violation of its Certificate of Incorporation or bylaws and
neither the Company nor any of its Subsidiaries is in default (and, to the
Company's knowledge, no event has occurred which with notice or lapse of time or
both could put the Company or any of its Subsidiaries in default) under, and
neither the Company nor any of its Subsidiaries has taken any action or failed
to take any action that would give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company or any of its Subsidiaries is a party or by
which any property or assets of the Company or any of its
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Subsidiaries is bound or affected, except for such defaults and events as would
not, individually or in the aggregate, have a Material Adverse Effect. The
businesses of the Company and its Subsidiaries, if any, are not being conducted,
and shall not be conducted so long as the Purchaser owns any of the Securities,
in violation of any law, ordinance or regulation of any governmental entity
where such violation would cause a Material Adverse Effect.
(j) DISCLOSURE; ABSENCE OF CERTAIN CHANGES. Neither this Agreement,
the Schedules to this Agreement, the Transaction Documents or 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(j) or
the SEC Documents filed on XXXXX at least five business days prior to the date
hereof, since December 31, 1998, 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 or reason to believe that its
creditors intend to initiate involuntary bankruptcy proceedings. No event,
liability, development or circumstance has occurred or exists, or is
contemplated to occur, 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.)
(k) PRIVATE OFFERING. Except for the issuance of those certain
Series A Zero-Coupon Convertible Debentures and Series B Zero-Coupon
Convertible Debentures issued pursuant to the Securities Purchase Agreement,
dated as of December 10, 1998, neither the Company, nor any of its affiliates,
nor any person acting on its or their behalf, has directly or indirectly made
any offers or sales of any security or solicited any offers to buy any security
under circumstances that would require registration under the Securities Act of
the issuance of the Securities to the Purchaser. The issuance of the Securities
to the Purchaser will not be integrated with any other issuance of the Company's
securities (past, current or future) for purposes of any stockholder approval
provisions applicable to the Company or its securities, except for the issuance
of those certain Series A Zero-Coupon Convertible Debentures and Series B
Zero-Coupon Convertible Debentures issued pursuant to the Securities Purchase
Agreement, dated as of December 10, 1998.
(l) 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
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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
Commission 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
Commission 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, 1998 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.
(m) INVESTMENT COMPANY. The Company is not, and is not controlled
by or under common control with an affiliate (as defined in Rule 144 promulgated
under the Securities Act (or a successor rule ("RULE 144")) (an "AFFILIATE") of
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
(n) 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(n) that may be due in connection with the transactions contemplated by this
Agreement and the Transaction Documents.
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(o) 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 Commission on Form S-3 (or any successor form) promulgated under
the Securities Act.
(p) 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(p), 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.
(q) PATENTS AND TRADEMARKS, ETC.
(i) To the Company's best knowledge, the Company or its
Subsidiaries has, or has rights to use, all patents, patent applications,
inventions, know-how, trade secrets, trademarks, trademark applications, service
marks, service names, trade names, copyrights, licenses and rights
(collectively, the "INTELLECTUAL PROPERTY RIGHTS") which are necessary for use
in connection with its business, as currently conducted and as described in the
SEC Documents. To the best knowledge of the Company, there is no existing
infringement by another Person of any of the Intellectual Property Rights which
are necessary for use in connection with the Company's business which would,
individually or in the aggregate, have a Material Adverse Effect, and the
Company is not infringing on any other person's Intellectual Property Rights.
The Company and each of its Subsidiaries have taken reasonable security measures
to protect the secrecy, confidentiality and value of their Intellectual Property
Rights.
(ii) To the Company's best knowledge, all of the Company's and
all of its Subsidiaries' computer software and computer hardware, and other
similar or related items of automated, computerized or software systems that are
used or relied on by the Company or any Subsidiary in the conduct of its
business (collectively, "INFORMATION TECHNOLOGY"), are Year 2000 Compliant,
except where a failure to be Year 2000 Compliant would not cause a Material
Adverse Effect. For purposes of this Agreement, the term "YEAR 2000 COMPLIANT"
means, with respect to the Company's and all of its Subsidiaries' Information
Technology, that the Information Technology is designed to be used prior to,
during and after the calendar Year 2000 A.D., and the Information Technology
used during each such time period will accurately receive, provide and process
date and time data (including, but not limited to, calculating, comparing and
sequencing) from, into and between the 20th and 21st centuries, including the
years 1999 and 2000, and leap-year calculations, and will not malfunction, cease
to function, or provide invalid or incorrect results as a result of the date or
time data, to the extent that other information technology, used in combination
with the Information Technology, properly exchanges date and time data with it.
(r) EMPLOYEE RELATIONS. Neither the Company nor any of its
Subsidiaries is involved in any union labor dispute nor, to the knowledge of the
Company or any of its
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Subsidiaries, is any such dispute threatened. Neither the Company nor any of its
Subsidiaries is a party to a collective bargaining agreement, and the Company
and its Subsidiaries believe that relations with their employees are good.
Except as set forth on Schedule 2.1(r), no executive officer (as defined in Rule
501(f) of the Securities Act) has notified the Company that such officer intends
to leave the Company or otherwise terminate such officer's employment with the
Company.
(s) REGISTRATION RIGHTS; RIGHTS OF PARTICIPATION. Except as
described on Schedule 2.1(s) hereto, (i) the Company has not granted or agreed
to grant to any Person any rights (including "piggy-back" registration rights)
to have any securities of the Company registered with the Commission or any
other governmental authority which has not been satisfied and (ii) no Person,
including, but not limited to, current or former stockholders of the Company,
underwriters, brokers or agents, has any right of first refusal, preemptive
right, right of participation, or any similar right to participate in the
transactions contemplated by this Agreement or any Transaction Document.
(t) TITLE. Except as disclosed on Schedule 2.1(t), the Company and
the Subsidiaries have good and marketable title in fee simple to all real
property and personal property owned by them which is material to the business
of the Company and its Subsidiaries, in each case free and clear of all Liens,
except for Liens that do not materially affect the value of such property and do
not interfere with the use made and proposed to be made of such property by the
Company and the Subsidiaries. Any real property and facilities held under lease
by the Company and the Subsidiaries are held by them under valid, subsisting
and, to the Company's best knowledge, enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and the Subsidiaries.
(u) PERMITS. The Company and the Subsidiaries possess all
certificates, authorizations, licenses, easements, consents, approvals, orders
and permits necessary to own, lease and operate their respective properties and
to conduct their respective businesses as currently conducted except where the
failure to possess such permits would not, individually or in the aggregate,
have a Material Adverse Effect ("MATERIAL PERMITS"), and there is no proceeding
pending, or, to the knowledge of the Company, threatened relating to the
revocation, modification, suspension or cancellation of any Material Permit.
Neither the Company nor any of the Subsidiaries is in conflict with or default
or violation of any Material Permit.
(v) INSURANCE. The Company and each of its Subsidiaries are insured
by insurers of recognized financial responsibility against such losses and risks
and in such amounts as management of the Company believes to be prudent and
customary in the businesses in which the Company and its Subsidiaries are
engaged. Neither the Company nor any such Subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverages as and when
such coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business.
(w) INTERNAL ACCOUNTING CONTROLS. The Company and each of the
Subsidiaries maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance
with management's general or specific
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authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(x) TAX STATUS; FIRPTA. The Company and each of the Subsidiaries
has made or filed all federal and state income and all other tax returns,
reports and declarations required by any jurisdiction to which it is subject
(unless and only to the extent that the Company and each of its Subsidiaries has
set aside on its books provisions reasonably adequate for the payment of all
unpaid and unreported taxes) and has paid all taxes and other governmental
assessments and charges that are material in amount, shown or determined to be
due on such returns, reports and declarations, except those being contested in
good faith and has set aside on it books provisions reasonably adequate for the
payment of all taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. There are no unpaid taxes in any
material amount claimed to be due by the taxing authority of any jurisdiction,
and the officers of the Company know of no basis for any such claim. The Company
is not a "United States real property holding corporation" within the meaning of
Section 847(c)(2) of the Internal Revenue Code of 1986, as amended.
(y) TRANSACTIONS WITH AFFILIATES. Except as set forth on Schedule
2.1(c) or Schedule 2.1(y), none of the officers, directors, or employees of the
Company is presently a party to any transaction with the Company or any of its
Subsidiaries (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any corporation,
partnership, trust or entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or
partner.
(z) 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.
(aa) ENVIRONMENTAL LAWS. The Company and its Subsidiaries (i) are
in compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic
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substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), (ii)
have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permits, licenses or
other approvals except where the failure of any of the foregoing would not
result in a Material Adverse Effect.
(bb) FOREIGN CORRUPT PRACTICES. To the Company's best knowledge,
neither the Company, nor any of its Subsidiaries, nor any director, officer,
agent, employee or other person acting on behalf of the Company or any of its
Subsidiaries has, in the course of its actions for, or on behalf of, the Company
used any corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expenses relating to political activity; made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee form corporate funds; violated or is in violation of any provision of
the U.S. Foreign Corrupt Practices Act of 1977, as amended; or made any unlawful
bribe, rebate, payoff, influence payment, kickback or other unlawful payment to
any foreign or domestic government official or employee.
(cc) SOLICITATION MATERIALS. The Company has not (i) distributed
any offering materials in connection with the offering and sale of the
Debentures or the Warrants, other than the SEC Documents, the Schedules to this
Agreement, any amendments and supplements thereto and the materials listed on
Schedule 2.1(cc), or (ii) solicited any offer to buy or sell the Debentures or
the Warrants by means of any form of general solicitation or advertising.
(dd) SOLVENCY. The Company (both before and after giving effect to
the transactions contemplated by this Agreement) is solvent (i.e., its assets
have a fair market value in excess of the amount required to pay its probable
liabilities on its existing debts as they become absolute and matured) and
currently the Company has no information that would lead it to reasonably
conclude that the Company would not have the ability to, nor does it intend to
take any action that would impair its ability to, pay its debts from time to
time incurred in connection therewith as such debts mature. The Company did not
receive a qualified opinion from its auditors with respect to its most recent
fiscal year end and does not anticipate or know of any basis upon which its
auditors might issue a qualified opinion in respect of its current fiscal year.
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 purchase by the Purchaser of the
Debentures and the Warrants hereunder has been duly authorized by all necessary
action on the part of the Purchaser. Each of this Agreement and the Registration
Rights 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.
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(b) INVESTMENT INTENT. As of the date hereof, the Purchaser is
acquiring the Debentures and the Warrants for its own account and not with a
present view to or for distributing or reselling the Debentures, the Warrants,
the Debentures Shares or the Warrant Shares or any part thereof or interest
therein except pursuant to sales registered or exempted from registration under
the Securities Act; provided however, that by making the representations herein,
Purchaser does not agree to hold any of the Securities for any minimum or other
specific term and reserves the right to dispose of the Securities at any time in
accordance with or pursuant to a registration statement or an exemption under
the Securities Act.
(c) PURCHASER STATUS. At the time the Purchaser was offered the
Debentures and the Warrants, and at the Closing Date, it was and will be an
"accredited investor" as defined in Rule 501 under the Securities Act.
(d) RELIANCE. The Purchaser understands and acknowledges that (i)
the Debentures and the Warrants are being offered and sold to the Purchaser
without registration under the Securities Act in a private placement that is
exempt from the registration provisions of the Securities Act under Section 4(2)
of the Securities Act or Regulation D promulgated thereunder and (ii) the
availability of such exemption, depends in part on, and the Company will rely
upon the accuracy and truthfulness of, the representations set forth in this
Section 2.2, and the Purchaser hereby consents to such reliance.
(e) INFORMATION. The Purchaser and its advisors, if any, have been
furnished with all materials relating to the business, finances and operations
of the Company and materials relating to the offer and sale of the Debentures
and Warrants which have been requested by the Purchaser or its advisors. The
Purchaser and its advisors, if any, have been afforded the opportunity to ask
questions of the Company and receive responses to such questions. Neither such
inquiries nor any other due diligence investigation conducted by the Purchaser
or any of its advisors or representatives shall modify, amend or affect the
Purchaser's right to rely on the Company's representations and warranties
contained in Section 2.1 above. The Purchaser understands that its investment in
the Debentures and Warrants involves a significant degree of risk.
(f) GOVERNMENTAL REVIEW. The Purchaser 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 Debentures or
Warrants.
(g) RESIDENCY. The Purchaser is a resident of the jurisdiction set
forth immediately below the Purchaser's name on the signature pages hereto.
The Company acknowledges and agrees that the Purchaser makes no
representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in this Section 2.2.
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ARTICLE 3
OTHER AGREEMENTS
3.1 TRANSFER RESTRICTIONS.
(a) If the Purchaser should decide to dispose of the Debentures,
the 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. In connection with any
transfer of any Debentures, 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 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 the Registration Rights
Agreement. Such transferee shall have the rights and obligations of the
Purchaser under this Agreement and the 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 Agreement.
(b) The Purchaser agrees to the imprinting, so long as is required
by this Section 3.1(b), of the following legend on the Debentures, the 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 Debentures, the 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 Registration Rights Agreement) covering such Securities is
effective under the Securities Act, (ii) in the written opinion of
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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 Commission), (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 Debentures, 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 Debentures, 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 Debentures, 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.
(c) 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.
3.2 FURNISHING OF INFORMATION; ELIGIBILITY TO USE FORM S-3. As long as
the Purchaser owns the Debentures, the 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 Debentures, the 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 Debentures, the 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.
3.3 BLUE SKY LAWS. In accordance with the Registration Rights
Agreement, the Company shall qualify the Debentures Shares and the Warrant
Shares under the securities or Blue Sky laws of such jurisdictions as the
Purchasers may request and shall continue such qualification at all times while
the Purchaser owns any such Debenture Shares or Warrant Shares.
3.4 INTEGRATION. The Company shall not sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the offer or sale
of the Debentures, the Warrants, the Debenture Shares or the Warrant Shares (i)
in a manner that would require the registration under the Securities Act of the
sale of the Debentures, the Warrants, the Debenture Shares or the Warrant Shares
to any
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Purchaser or (ii) so as to require approval of the Company's stockholders for
the issuance of the Securities.
3.5 LISTING AND RESERVATION OF DEBENTURE SHARES AND WARRANT SHARES.
(a) 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 sold or to be sold hereunder, (ii) take all steps necessary to cause the
Underlying Shares 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 Debentures or exercise of the 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 (i) at all times from the Closing Date to the
Authorization Date (as defined in Section 3.17) shall reserve a minimum of
1,189,009 shares of its authorized but unissued Common Stock for issuance upon
conversion of the Debentures and exercise of the Warrants and (ii) at all times
after the Authorization Date shall reserve 125% of the number of shares of its
authorized but unissued Common Stock which would be issuable upon full
conversion of the Debentures and full exercise of the Warrants. Shares of Common
Stock reserved for issuance upon conversion of the Debentures and exercise of
the Warrants shall be allocated pro rata to each Purchaser in accordance with
the amount of Debentures and Warrants held by such Purchaser. The Company shall
not reduce the number of shares of Common Stock reserved for issuance upon
conversion of or otherwise pursuant to the Debentures and exercise of or
otherwise pursuant to the Warrants without the consent of each such Purchaser.
If at any time after the Authorization Date the number of shares of Common Stock
authorized and reserved for issuance is below 125% of the sum of (x) the number
of Debenture Shares issuable upon conversion of or otherwise pursuant to the
Debentures (based on the Conversion Price (as defined in the Debentures) 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 Warrants (based on
the Exercise Price (as defined in the Warrants) of the 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 3.6(b), in the
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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.
3.6 NOTICE OF BREACHES.
(a) The Company and the Purchaser shall give prompt written notice
to the other of any breach by it of any representation, warranty or other
agreement contained in this Agreement or in the Registration Rights Agreement,
as well as any events or occurrences arising after the date hereof and prior to
the Closing Date which would reasonably be likely to cause any representation or
warranty or other agreement of such party, as the case may be, contained herein
to be incorrect or breached as of such Closing Date provided such notice will
not constitute material non-public information. However, no disclosure by either
party pursuant to this Section 3.7 shall be deemed to cure any breach of any
representation, warranty or other agreement contained herein or in the
Registration Rights Agreement.
(b) Notwithstanding the generality of Section 3.7(a), the Company
shall promptly notify, provided such notification will not constitute material
non-public information, each Purchaser of any notice or claim (written or oral)
that it receives from any lender of the Company or any Subsidiary to the effect
that the consummation of the transactions contemplated hereby and by the
Registration Rights Agreement violates or would violate any written agreement or
understanding between such lender and the Company or any Subsidiary, and the
Company shall promptly furnish by facsimile to the Purchasers a copy of any
written statement in support of or relating to such claim or notice.
3.7 FORM D; BLUE SKY LAWS. The Company agrees to file a Form D with
respect to the Debentures and Warrants as required by Rule 506 under Regulation
D and to provide a copy thereof to the Purchaser promptly after such filing. The
Company shall, at or before the Closing, take such action as the Company shall
reasonably determine is necessary to qualify the Debentures and Warrants for
sale to the Purchaser pursuant to this Agreement under applicable securities or
"blue sky" laws of the states of the United States (or to obtain an exemption
from such qualification), and shall provide evidence of any such action so taken
to each Purchaser at or prior to the Closing.
3.8 FUTURE FINANCINGS. Except for (i) issuance of the Underlying
Shares; (ii) the issuance of securities upon exercise or conversion of the
Company's options, warrants or other convertible securities outstanding as of
the date hereof and listed on Schedule 2(c); (iii) the grant of additional
options or warrants, or the issuance of additional securities, under any Company
stock or compensation plan pursuant to which Common Stock may be issued to any
employee, officer, director or consultant of the Company which is either (a)
approved by the stockholders of the Company or (b) approved by the compensation
committee of the Company's Board of Directors for legitimate compensation
purposes which provides for the purchase of the Common Stock at a purchase price
of no less than 85% of the market price of the Common Stock on the date of
issuance of such option, warrant, or other security; (iv) shares of Common Stock
issued or deemed to have been issued in a Strategic Venture (as defined below);
(v) shares of Common Stock issued or deemed to have been issued as consideration
for an acquisition by the Company of a division, assets or business (or stock
constituting any portion thereof) from another person; (vi) securities sold by
the Company in a firm commitment underwritten public offering
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(excluding a continuous offering pursuant to Rule 415 under the Securities Act);
or (vii) the issuance of up to an aggregate of Two Million Dollars ($2,000,000)
of Common Stock pursuant to an equity line of credit arrangement, the Company
will not, without the prior written consent of Xxxx Xxxx, negotiate or contract
with any party to obtain additional equity financing (including debt financing
with an equity component) that involves (A) the issuance of Common Stock
(whether upon conversion or exercise of a security convertible into or
exercisable for Common Stock ("Convertible Securities") or otherwise) at a
discount to the market price of the Common Stock on the date of issuance thereof
or, in the case of Convertible Securities, the date of issuance of such
Convertible Securities (in each case taking into account the value of any
warrants or options to acquire Common Stock issued in connection therewith) or
where the issuance price of such Common Stock is subject to reduction in the
future or (B) the issuance of Convertible Securities that are convertible into
an indeterminate number of shares of Common Stock or where the issuance price of
the Common Stock upon conversion or exercise of such Convertible Securities
(including, based upon any conversion, exchange or reset formula) changes at any
time after the date of issuance of such Convertible Securities, during the
period (the "LOCK-UP PERIOD") beginning on the Closing Date and ending one
hundred eighty (180) days from the date the Registration Statement (as defined
in the Registration Rights Agreement) is declared effective (plus any days in
which sales cannot be made thereunder). In addition, subject to the exceptions
described in clauses (i) through (vii) of the first sentence of this Section
3.9, the Company will not conduct any equity financing (including debt with an
equity component) ("FUTURE OFFERINGS") during the period beginning on the
Closing Date and ending one hundred eighty-five (185) days after the end of the
Lock-up Period unless it shall have first delivered to Xxxx Xxxx, at least
fifteen (15) business days prior to the closing of such Future Offering, written
notice describing the proposed Future Offering, including the terms and
conditions thereof and proposed definitive documentation to be entered into in
connection therewith, and providing Xxxx Xxxx an option during the ten (10) day
period following delivery of such notice to purchase up to Fifty percent (50%)
of the securities being offered in the Future Offering on the same terms as
contemplated by such Future Offering (the limitations referred to in this
sentence and the preceding sentence are collectively referred to as the "CAPITAL
RAISING LIMITATIONS"). In the event the terms and conditions of a proposed
Future Offering are amended in any respect after delivery of the notice to Xxxx
Xxxx concerning the proposed Future Offering, the Company shall deliver a new
notice to Xxxx Xxxx describing the amended terms and conditions of the proposed
Future Offering and Xxxx Xxxx thereafter shall have an option during the ten
(10) day period following delivery of such new notice to purchase up to Fifty
percent (50%) of the securities being offered on the same terms as contemplated
by such proposed Future Offering, as amended. The foregoing sentence shall apply
to successive amendments to the terms and conditions of any proposed Future
Offering. "STRATEGIC VENTURE" shall mean a venture between the Company and a
pharmaceutical or biotechnology company or an Affiliate thereof, the primary
purpose of which is not to raise capital in the form of equity (including
without limitation through the issuance of warrants, convertible securities,
phantom stock rights, stock appreciation rights or other rights with equity
features) and pursuant to which the Company contributes or issues securities of
the Company valued at less than 50% of the entire contribution of the Company.
3.9 USE OF PROCEEDS. The Company shall use the proceeds from the sale
of the Debentures and the exercise of the Warrants for general corporate
purposes and shall not, directly or indirectly, other than in connection with a
strategic or research collaboration, use such
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proceeds for any loan to or investment in any other corporation, partnership,
enterprise or other Person.
3.10 REIMBURSEMENT. In the event that the Purchaser, other than by
reason of its gross negligence or willful misconduct, becomes involved in any
capacity in any action, proceeding or investigation brought by or against any
person, including any Purchaser or stockholders of the Company, in connection
with or as a result of (a) any misrepresentation or breach of any representation
or warranty made by the Company in this Agreement or the Transaction Documents
or any other certificate, instrument or document contemplated hereby or thereby,
(b) any breach of any covenant, agreement or obligation of the Company contained
in this Agreement or the Transaction Documents or any other certificate,
instrument or document hereby or thereby, or (c) any cause of action, suit or
claim brought or made against the Purchaser and arising out of or resulting from
the execution, delivery, performance or enforcement of this Agreement or the
Transaction Documents or any other certificate, instrument or document
contemplated hereby or thereby, the Company will reimburse such Purchaser for
its legal and other actual out-of-pocket expenses (including the cost of any
investigation and preparation) incurred in connection therewith. The
reimbursement obligations of the Company under this paragraph shall be in
addition to any liability which the Company may otherwise have, shall extend
upon the same terms and conditions to any affiliate of the Purchaser and
partners, directors, agents, employees and controlling persons (if any), as the
case may be, of the Purchaser and any such affiliate, and shall be binding upon
and inure to the benefit of any successors, assigns, heirs and personal
representatives of the Company, the Purchaser and any such affiliate and any
such Person. The Company also agrees that neither the Purchaser or any such
Affiliates, partners, directors, agents, employees or controlling persons shall
have any liability to the Company or any Person asserting claims on behalf of or
in right of the Company in connection with or as a result of the consummation of
this Agreement or any of the Transaction Documents except to the extent that any
losses, claims, damages, liabilities or expenses incurred by the Company result
from the gross negligence or willful misconduct of the Purchaser or entity in
connection with the transactions contemplated by this Agreement or the
Registration Rights Agreement. To the extent that the foregoing undertaking by
the Company may be unenforceable for any reason, the Company shall make the
maximum contribution to the payment and satisfaction of its obligations
hereunder which is permissible under applicable law.
3.11 [RESERVED].
3.12 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"). Prior to registration of the
Debenture Shares and 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), all such certificates shall
bear the restrictive legend specified in Section 3.1(b) of this Agreement. The
Company warrants that no instruction other than the Irrevocable Transfer Agent
Instructions referred to in this Section 3.13, 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
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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 Registration Rights Agreement. Nothing in
this Section 3.13 shall affect the Purchaser's obligation and agreement set
forth in Section 3.1(b). If 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 the Purchaser provides the
Company with reasonable assurances that the Debentures, Warrants, the Debenture
Shares and the Warrant Shares can be sold without limitation or restriction as
to volume pursuant to Rule 144(k), 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.
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 3.13 will
be inadequate and agrees, in the event of a beach or threatened breach by the
Company of the provisions of this Section 3.13, 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.
3.13 FILING OF FORM 8-K. On or before the fourth business day following
the Closing Date, the Company shall file a Form 8-K with the Commission
describing the terms of the 34. transaction contemplated by this Agreement and
the Transaction Documents in the form required by the Exchange Act.
3.14 FINANCIAL INFORMATION. The Company agrees to send the following
reports to each Purchaser until such Purchaser transfers, assigns, or sells all
of the Securities: (i) within one (1) day after release, copies of all press
releases issued by the Company or any of its Subsidiaries; and (ii)
contemporaneously with the making available or giving to the stockholders of the
Company, copies of any notices or other information the Company makes available
or gives to such stockholders. In addition, the Company agrees to make available
to each Purchaser, until such Purchaser transfers, assigns, or sells all of the
Securities, within ten (10) days after the filing with the SEC, a copy of its
Annual Report on Form 10-K, its Quarterly Reports on Form 10-Q and any Current
Reports on Form 8-K.
3.15 CORPORATE EXISTENCE. So long as a Purchaser beneficially owns any
Debentures or Warrants, the Company shall maintain its corporate existence and
shall not sell all or substantially all of the Company's assets, except in the
event of a merger or consolidation or sale of all or substantially all of the
Company's assets, where the successor or acquiring entity and, if an entity
different from the successor or acquiring entity, the entity whose capital stock
or assets the holders of the Common Stock are entitled to receive as a result of
such transaction, in such transaction (i) assumes the Company's obligations
hereunder and under the agreements and instruments entered into in connection
herewith (including, but not limited to, the Debentures,
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the Warrants and the Registration Rights Agreement) and (ii) is a publicly
traded corporation whose Common Stock is listed for trading on Nasdaq, Nasdaq
SmallCap, NYSE or AMEX.
3.16 STOCKHOLDER APPROVAL. The Company shall call a special meeting
(the "SPECIAL MEETING") of its stockholders prior to March 31, 2000 for the
purpose of allowing its stockholders to vote to approve an increase in the
authorized shares of Common Stock of the Company to at least 30,000,000 shares
(the "AUTHORIZATION APPROVAL"). The date of the Authorization Approval shall be
referred to as the "AUTHORIZATION DATE." The Company shall comply with the
filing and the disclosure requirements of Section 14 under the Exchange Act in
connection with the solicitation, acquisition and disclosure of the
Authorization Approval. The Company represents and warrants that its Board of
Directors has approved, and will recommend that the Company's stockholders
approve, the proposal contemplated by this Section 3.17 and shall so indicate
such recommendation in the proxy statement used to solicit the Authorization
Approval. The Company shall use its best efforts to obtain the Authorization
Approval. The Company shall use its best efforts to cause its officers and
directors to vote in favor of, and to cause its stockholders to approve, the
Authorization Approval contemplated by this Section 3.17.
ARTICLE 4
CONDITIONS
4.1 (a) CONDITIONS PRECEDENT TO THE OBLIGATION OF THE COMPANY TO SELL
THE DEBENTURES AND WARRANTS. The obligation of the Company to sell the
Debentures and Warrants 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 TO
PURCHASE THE DEBENTURES AND WARRANTS. The obligation of the Purchaser hereunder
to acquire and pay for the Debentures and Warrants is 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:
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(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 Commission 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 Underlying Shares required by this Agreement and the
Transaction Documents to be reserved for issuance upon conversion of the
Debentures and the exercise of the 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
(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.
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(c) DOCUMENTS AND CERTIFICATES. At the Closing, the Company shall
have delivered to the Purchaser the following in form and substance reasonably
satisfactory to the Purchasers:
(i) An opinion of the Company's legal counsel in the form
attached hereto as "EXHIBIT D" dated as of the Closing Date;
(ii) A Debenture(s) representing the principal amount of
Debentures purchased by the Purchaser, registered in the name of such Purchaser,
each in form satisfactory to the Purchaser;
(iii) A Warrant(s) representing the Warrants purchased by the
Purchaser, registered in the name of the Purchaser;
(iv) The Company shall have executed and delivered the
Registration Rights Agreement;
(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.
ARTICLE 5
MISCELLANEOUS
5.1 FEES AND EXPENSES. Except as set forth in the Registration Rights
Agreement and as otherwise set forth in this 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 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.
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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 Godward LLP, 5
Palo Alto Square, 0000 Xx Xxxxxx Xxxx, Xxxx Xxxx, XX 00000 attention: Xxxx X.
Xxxxxxxxx, Esq., fax no. (000) 000-0000 and (ii) if to the Purchaser to the
address as set forth on Schedule II hereto with copies to Xxxxxx Xxxxx & Bockius
LLP, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 attention: Xxxxx X. XxXxxxxx,
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.
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 to any Affiliate thereof
without the prior written consent of the Company. 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 Registration
Rights Agreement. Prior to the Authorization Date, the Purchaser,
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shall not transfer the Securities, or any portion thereof, without obtaining a
prior written agreement with such transferee as to the allocation of shares of
Common Stock reserved for issuance upon conversion of the Debentures and upon
exercise of the Warrants and providing notice to the Company thereof.
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. 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 judgement 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
Debentures and the Warrants pursuant to this Agreement and the Closing hereunder
and any conversion of the Debentures or exercise of the 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
if such disclosure is required by law, rule or regulation, in which such case
the disclosing party shall provide the other party
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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.
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.
5.14 PAYMENT SET ASIDE. To the extent that the Company makes a payment
or payments to the Purchaser hereunder or pursuant to the 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase 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 X. Xxxxxxxxx
Title: Chief Financial Officer, Treasurer and Secretary
RGC INTERNATIONAL INVESTORS, LDC
By: Xxxx Xxxx Capital Management, L.P.,
Investment Manager
By: RGC General Partner Corp.,
as General Partner
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Residence: Grand Cayman, Cayman Islands
27.
