EXHIBIT 4.1
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into as
of August 13, 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 MPI Research, Inc., a
Michigan corporation having its principal place of business at 00000 Xxxxx Xxxx
Xxxxxx, Xxxxxxxx, XX 00000 ("MPI").
X. Xxxxx and MPI are the parties to that certain Master Agreement dated
as of December 12, 2003 (the "Master Agreement"), and related
Services Agreement Addenda under which Geron and MPI have agreed
that MPI will perform certain services on behalf of Geron on the
terms set forth therein.
B. Pursuant to the third amendment to the Master Agreement, dated
August 13, 2008 ("Amendment No. 3"), Geron may pay for the price of
such services by delivery of shares of Geron's Common Stock (the
"Shares").
X. Xxxxx has elected to make payment for such services through the
delivery of Shares, pursuant to the terms and conditions of
Amendment No. 3 and this Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. ISSUANCE OF SHARES; ADJUSTMENTS.
1.1 As payment of the price specified in Amendment No. 3, Geron will
issue and deliver certificates for 226,062 Shares. Upon issuance and
delivery of the certificate(s) for the Shares, all Shares shall be
duly authorized and validly issued and represent fully paid shares
of Geron's Common Stock.
2. CLOSING; DELIVERY.
2.1 The consummation of the transaction contemplated by this Agreement
(a "Closing") shall be held at such time and place as is mutually
agreed upon between the parties, but in any event no later than five
(5) business days after the Effective Date hereof (the "Closing
Date"). At the Closing, Geron shall deliver to MPI one or more
certificates representing all of the Shares, which Shares shall be
issued in the name of MPI or its designee and in such denominations
as MPI shall specify.
2.2 Geron's obligations to issue and deliver the stock certificate(s)
representing the Shares to MPI at the Closing shall be subject to
the following conditions, which may be waived by Geron:
2.2.1 the covenants and obligations that MPI 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 MPI herein shall be
true and correct in all material respects as of the Closing
Date.
2.3 MPI'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 MPI:
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 MPI; and
2.3.3 the representation and warranties made by Geron herein shall
be true and correct in all material respects as of any Closing
Date.
3. RESTRICTIONS ON RESALE OF SHARES.
3.1 Legends. MPI 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 MPI 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, DATED AS OF AUGUST 13, 2008. A COPY OF THE
AGREEMENT CAN BE OBTAINED FROM THE SECRETARY OF GERON."
3.2 Limits on Sales. MPI 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.
MPI further agrees that it will not engage in short selling with
respect to the Stock.
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 MPI. Geron agrees to
diligently pursue making the Registration Statement effective. Geron
will notify MPI of the effectiveness of the Registration Statement
within one (1) business day of receiving notice from the Commission.
2
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 MPI receives
an opinion of counsel from Geron, which counsel shall be reasonably
acceptable to MPI, 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 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 MPI.
4.3 Geron, at its expense, shall furnish to MPI 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 MPI may reasonably request, in order
to facilitate the public sale or other disposition of all or any of
the Shares by MPI, provided, however, that the obligation of Geron
to deliver copies of prospectuses or preliminary prospectuses to MPI
shall be subject to the receipt by Geron of reasonable assurances
from MPI that MPI 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.
MPI shall bear the cost of fees and expenses of MPI's counsel.
4.5 Geron will advise MPI 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 MPI the benefits of Rule 144 (or
its successor rule) and any other rule or regulation of the
Commission that may at the time permit MPI 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 Exchange Act of 1934, as amended.
3
4.7 MPI 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 MPI 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 MPI to consent to be named
as an underwriter in any Registration Statement.
5. INDEMNIFICATION.
5.1 Geron agrees to indemnify and hold harmless MPI (and each person, if
any, who controls MPI within the meaning of Section 15 of the Act,
and each officer and director of MPI) against any and all losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof), joint or several, directly or indirectly based upon or
arising out of (i) any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, any
preliminary prospectus, final prospectus or summary prospectus
contained therein or used in connection with the offering of the
Shares, or any amendment or supplement thereto, or (ii) any omission
or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and Geron will reimburse each such indemnified party for any legal
or any other expenses reasonably incurred by them in connection with
investigating, preparing, pursuing or defending any such loss,
claim, damage, liability, action or proceeding, except insofar as
any such loss, claim, damage, liability, action, proceeding or
expense (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 MPI or such other person expressly for use in the preparation
thereof, (B) the failure of MPI 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 MPI prior to the
pertinent sale or sales by MPI. 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
MPI.
5.2 MPI 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 MPI 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 on behalf of MPI
specifically for use in preparation of the Registration Statement;
provided, however, that MPI 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
MPI 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 MPI 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.
4
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 define such action) or from any liability
otherwise than under this Section 5. Subject to the provisions
hereinafter stated, in case any such action shall be brought against
an indemnified person, the indemnifying person shall be entitled to
participate therein, and, to the extent that it shall elect by
written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, shall be
entitled to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified person. After notice from the
indemnifying person to such indemnified person of its election to
assume the defense thereof, such indemnifying person shall not be
liable to such indemnified person for any legal expense subsequently
incurred by such indemnified person in connection with the defense
thereof, provided, however, that if there exists or shall exist a
conflict of interest that would make inappropriate, in the
reasonable opinion of counsel to the indemnified person, for the
same counsel to represent both the indemnified person and such
indemnifying person or any affiliate or associate thereof, the
indemnified person shall be entitled to retain its own counsel at
the expense of such indemnifying person; provided, however, that no
indemnifying person shall be responsible for the fees and expenses
of more than on 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 GERON.
Geron hereby represents, warrants and covenants to MPI as follow:
6.1 Organization, Good Standing and Qualification. Geron is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite
corporate power and authority to carry on its business as now
conducted and as presently proposed to be conducted. Geron is duly
qualified to transact business and is in good standing as a foreign
corporation in each jurisdiction in which the failure to so qualify
would have a material adverse effect on its business or properties.
6.2 Authorization. All corporate action on the party 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.
5
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 this 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 ACKNOWLEDGMENTS OF MPI.
MPI hereby represents, warrants, acknowledges and agrees that:
7.1 Investment. MPI is acquiring the Shares for MPI's own account, and
not directly or indirectly for the account of any other person. MPI
is acquiring the Shares for investment and not with a view to
distribution or resale thereof, except in compliance with the Act
and any applicable state law regulating securities.
7.2 Access to Information. MPI has consulted with its own attorney,
accountant, or investment advisor as MPI has deemed advisable with
respect to the investment and has determined its suitability for
MPI. MPI 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. MPI has had access to such financial
and other information as is necessary in order for MPI 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 MPI has had access. MPI
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. MPI 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. MPI 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 MPI's risk capital means and is
not so great in relation to MPI's total financial resources as would
jeopardize the personal financial needs of MPI in the event such
investment were lost in whole or in part.
7.5 Unregistered Securities. MPI acknowledges that:
7.5.1 MPI 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.
6
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 MPI hereby certifies that it is an "Accredited Investor" as
that term is defined in Rule 501 under the Act.
8. TAX ADVICE. MPI acknowledges that MPI 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. MPI 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 MPI at: MPI Research, Inc.
00000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: 000.000.0000
Facsimile: 269.668.4151
10. BINDING EFFECT. This Agreement shall be binding upon the heirs,
legal representatives and successors of Geron and of MPI; provided,
however, that MPI 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.
7
13. COUNTERPARTS. This Agreement may be executed in any number of identical
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14. AMENDMENTS. This Agreement or any provision hereof may be changed, waived,
or terminated only by a statement in writing signed by the party against
whom such change, waiver or termination is sought to be enforced.
15. FUTURE COOPERATION. Each of the parties hereto agrees to cooperate at all
times from and after the date hereof with respect to all of the matters
described herein, and to execute such further assignments, releases,
assumptions, amendments of the Agreement, notifications and other
documents as may be reasonably requested for the purpose of giving effect
to, or evidencing or giving notice of, the transactions contemplated by
this Agreement.
16. ENTIRE AGREEMENT. This Agreement and the Master Agreement, including
Amendment No. 3 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/ Xxxxx X. Xxxxxxxxx
---------------------------------------------
By: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President and Chief
Financial Officer
MPI Research, Inc.
/s/ Xxxxxxx Xxxxxxxx
---------------------------------------------
By: Xxxxxxx Xxxxxxxx
Title: President and Chief Operating Officer
8
