EXHIBIT 4.1
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into as
of May 29, 2008 (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 Samchully Pharm. Co., Ltd.,
having a principal place of business at 000-0, Xxxxxx-xxxx, Xxxxxxx-xx, Xxxxx,
Xxxxx ("Manufacturer").
X. Xxxxx and Manufacturer are the parties to that certain Master
Manufacturing Agreement dated as of March 9, 2005 (the "Manufacturing
Agreement"), and related Addendum Agreements ("Addendum Agreement")
under which Geron has agreed to purchase certain products and services
from Manufacturer and Manufacturer has agreed to supply such products
and services to Geron on the terms set forth therein.
B. Pursuant to the Amendment No. 1 to the Manufacturing Agreement, dated
as of May 12, 2008, Geron is entitled to pay the purchase price of
products and services by delivery of shares of Geron's Common Stock
(the "Shares").
THE PARTIES AGREE AS FOLLOWS:
1. ISSUANCE OF SHARES; ADJUSTMENTS
As payment of the First Installment specified in Amendment No. 1 to
Addendum Agreement No. 8, Geron will issue and deliver certificates for 251,637
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 Geron shall make
commercially reasonable efforts to accomplish the Closing no later
than five (5) business days after the Effective Date hereof (the
"Closing Date"). At the Closing, Geron shall deliver to Manufacturer
one or more certificates representing all of the Shares, which Shares
shall be issued in the name of Manufacturer or its designee and in
such denominations as Manufacturer shall specify.
2.2 Geron's obligations to issue and deliver the stock certificate(s)
representing the Shares to Manufacturer at the Closing shall be
subject to the following conditions, which may be waived by Geron:
2.2.1 the covenants and obligations that Manufacturer 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 Manufacturer
herein shall be true and correct in all material respects as
of the Closing Date.
2.3 Manufacturer'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
Manufacturer:
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 Manufacturer; and
2.3.3 the representation 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. Manufacturer 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 Manufacturer 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
MANUFACTURER DATED AS OF MAY 29, 2008. A COPY OF THE AGREEMENT
CAN BE OBTAINED FROM THE SECRETARY OF GERON."
3.2 Limits on Sales. Manufacturer agrees that if it decides to resell some
or all of the Shares, it will do so only through orderly sales
executed through a top-tier brokerage house, and in an appropriate
manner based upon whether the shares are registered or unregistered,
i.e., on the Nasdaq Global Market or in a Rule 144A compliant
transaction. Manufacturer further agrees that it will not engage in
short selling with respect to the Shares.
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 Manufacturer. Geron agrees
to diligently pursue making the Registration Statement effective.
Geron will make commercially reasonable efforts to notify Manufacturer
of the effectiveness of the Registration Statement within one (1)
business day of receiving notice from the Commission.
4.2 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 Manufacturer receives an opinion of counsel
from Geron, which counsel shall be reasonably acceptable to
Manufacturer, that the Shares may be sold under the provisions of Rule
144 without limitation as to volume, (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
2
bearing a restrictive legend, or (v) the date all Shares may be sold
at any time, without volume or manner of sale limitations pursuant to
Rule 144 or any similar provision then in effect under the Act in the
opinion of counsel to Geron, which counsel shall be reasonably
acceptable to Manufacturer.
4.3 Geron, at its expense, shall furnish to Manufacturer 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 Manufacturer may reasonably request,
in order to facilitate the public sale or other disposition of all or
any of the Shares by Manufacturer, provided, however, that the
obligation of Geron to deliver copies of prospectuses or preliminary
prospectuses to Manufacturer shall be subject to the receipt by Geron
of reasonable assurances from Manufacturer that Manufacturer 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.
4.4 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.
Manufacturer shall bear the cost of fees and expenses of
Manufacturer's counsel.
4.5 Geron will advise Manufacturer 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 at
the earliest possible moment if such stop order should be issued.
4.6 With a view to making available to Manufacturer the benefits of Rule
144 (or its successor rule) and any other rule or regulation of the
Commission that may at the time permit Manufacturer 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 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 Securities Exchange Act of 1934, as amended (the
"Exchange Act").
4.7 Manufacturer 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 Manufacturer 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 Manufacturer to
consent to be named as an underwriter in any Registration Statement.
5. INDEMNIFICATION
5.1 Geron agrees to indemnify and hold harmless Manufacturer (and each
person, if any, who controls Manufacturer within the meaning of
Section 15 of the Act, and each officer and director of Manufacturer)
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
3
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 (A) arises out of or is based upon 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
Manufacturer or such other person expressly for use in the preparation
thereof, (B) the failure of Manufacturer 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 Manufacturer prior to the
pertinent sale or sales by Manufacturer. 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
Manufacturer.
5.2 Manufacturer 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 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 Manufacturer 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 Manufacturer
specifically for use in preparation of the Registration Statement;
provided, however, that Manufacturer 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 Manufacturer 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 Manufacturer 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
4
person shall be entitled to retain its own counsel at the expense of
such indemnifying person; provided, however, that no indemnifying
person shall be responsible for the fees and expenses of more than one
separate counsel (together with appropriate local counsel) for all
indemnified parties. In no event shall any indemnifying person be
liable in respect to any amounts paid in settlement of any action
unless the indemnifying person shall have approved the terms of such
settlement. No indemnifying person shall, without the prior written
consent of the indemnified person, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified
person is or could have been a party and indemnification could have
been sought hereunder by such indemnified person, unless such
settlement includes an unconditional release of such indemnified
person from all liability on claims that are the subject matter of
such proceeding.
5.4 The provisions of this Section 5 shall survive the termination of this
Agreement.
6. REPRESENTATIONS AND ACKNOWLEDGEMENT OF XXXXX
Xxxxx hereby represents, warrants and covenants to Manufacturer as follows:
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. All corporate action on the part of Geron, its
officers, directors and stockholders necessary for the authorization,
execution and delivery of this Agreement, the performance of all
obligations of Geron hereunder and the authorization, issuance and
delivery of the Shares has been taken or will be taken prior to the
Closing, and this Agreement, when executed and delivered will
constitute valid and legally binding obligations of Geron, enforceable
against Geron in accordance with their terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other laws of general application affecting
enforcement of creditors' rights generally, as limited by laws
relating to the availability of specific performance, injunctive
relief or other equitable remedies.
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 forgoing. 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.
7. REPRESENTATIONS AND ACKNOWLEDGEMENTS OF MANUFACTURER
Manufacturer hereby represents, warrants, acknowledges and agrees that:
7.1 Investment. Manufacturer is acquiring the Shares for Manufacturer's
own account, and not directly or indirectly for the account of any
other person. Manufacturer is acquiring the Shares for investment and
5
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. Manufacturer has consulted with its own
attorney, accountant, or investment advisor as Manufacturer has deemed
advisable with respect to the investment and has determined its
suitability for Manufacturer. Manufacturer 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.
Manufacturer has had access to such financial and other information as
is necessary in order for Manufacturer 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 Manufacturer has had access. Manufacturer
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. Manufacturer 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. Manufacturer 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 Manufacturer's risk capital means
and is not so great in relation to Manufacturer's total financial
resources as would jeopardize the personal financial needs of
Manufacturer in the event such investment were lost in whole or in
part.
7.5 Unregistered Securities. Manufacturer acknowledges that:
7.5.1 Manufacturer 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.
7.5.3 Manufacturer hereby certifies that it is an "Accredited
Investor" as that term is defined in Rule 501 under the Act.
7.6 Authorization. Manufacturer 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
6
of this Agreement. Upon execution and delivery, this Agreement will
constitute a valid and binding obligation of Manufacturer enforceable
against Manufacturer 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. Manufacturer acknowledges that Manufacturer 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. Manufacturer 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: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Manufacturer at: Xxxx X. Xxxx
General Manager,
Marketing and Business Development
8F Samtan Bldg.
Samchully Pharm. Co., Ltd.
000-0, Xxxxxx-xxxx Xxxxxxx-xx
Xxxxx, Xxxxx 135-735
e-mail: xxxxxxx@xxxxxxxxxxxxxx.xxx
Telephone: x00 (0)0-000-0000
Facsimile: x00 (0)0-000-0000
10. BINDING EFFECT. This Agreement shall be binding upon the heirs, legal
representatives and successors of Geron and of Manufacturer; provided,
however, that Manufacturer may not assign any rights or obligations under
this Agreement.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
12. INVALID PROVISIONS. In the event that any provision of this Agreement is
found to be invalid or otherwise unenforceable by a court or other tribunal
of competent jurisdiction, such invalidity or unenforceability shall not be
construed as rendering any other provision contained herein invalid or
unenforceable, and all such other provisions shall be given full force and
effect to the same extent as though the invalid and unenforceable provision
was not contained herein.
13. COUNTERPARTS. This Agreement may be executed in any number of identical
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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.
7
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 Manufacturing Agreement, including
all Addenda 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.
IN WITNESS WHEREOF, the parties hereto have executed this Common Stock
Purchase Agreement as of the date first above written.
Geron Corporation
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
By: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
Samchully Pharm. Co., Ltd.
/s/ Tae-Xxxx Xxx
--------------------------------------------
By: Tae-Xxxx Xxx
Title: President and Chief Executive Officer
8
