EXHIBIT 4.1
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made and entered
into as of April 23, 2004 (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
TRANSGENOMIC, INC., a Delaware corporation having its principal place of
business at 00000 Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000 ("Transgenomic").
X. Xxxxx and Transgenomic are the parties to that certain Supply
Agreement dated as of June 15, 2002 (the "Supply Agreement"), and
related Addendum Agreements ("Addendum Agreement") under which Geron
has agreed to purchase certain products from Transgenomic and
Transgenomic has agreed to supply such products to Geron on the terms
set forth therein.
B. Pursuant to Addendum Agreement No. 5 effective December 19, 2003,
Geron may pay the purchase price of products by delivery of shares of
Geron's Common Stock.
THE PARTIES AGREE AS FOLLOWS:
1. ISSUANCE OF SHARES; ADJUSTMENTS.
1.1 As payment of the Second Installment specified in Addendum
Agreement No. 5, Geron will issue and deliver one or more
certificates for 26,460 shares (the "Group 1 Shares") and one or
more certificates for 49,557 shares (the "Group 2 Shares"). Upon
issuance and delivery of the certificate(s) for the Group 1
Shares and the Group 2 Shares (collectively, 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 three (3) business days after the Effective Date of
this Agreement (the "Closing Date"). At the Closing, Geron shall
deliver to Transgenomic one or more certificates representing all
of the Shares, which Shares shall be issued in the name of
Transgenomic or its designee and in such denominations as
Transgenomic shall specify.
2.2 Geron's obligations to issue and deliver the stock certificate(s)
representing the Shares to Transgenomic at the Closing shall be
subject to the following conditions, which may be waived by
Geron:
2.2.1 the covenants and obligations that Transgenomic 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
2.2.1 the representations and warranties made by Transgenomic
herein shall be true and correct in all material respects as
of the Closing Date.
2.3 Transgenomic'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 Transgenomic:
2.3.1 the covenants and obligations that Geron is required to
perform or to comply with pursuant to this Agreement and
under the Common Stock Purchase Agreement between the
parties hereto dated January 21, 2004, at or prior to the
Closing, must have been duly performed and complied with in
all material respects;
1
2.3.2 Geron shall have available under its Certificate of
Incorporation sufficient authorized shares of Common Stock
to issue the Shares to Transgenomic; and
2.3.3 the representation and warranties made by the 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. Transgenomic 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 Transgenomic 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 APRIL 23, 2004. A COPY OF THE
AGREEMENT CAN BE OBTAINED FROM THE SECRETARY OF GERON."
3.2 Limits on Sales. Transgenomic agrees that if it decides to
resell some or all of the Shares, it will do so only in an
appropriate manner based upon whether the shares are
registered or unregistered, i.e., on the Nasdaq National
Market or in a Rule 144A compliant transaction. Subject to
the foregoing restrictions, Transgenomic may sell or resell
the Shares in any lot size, or at any volume, desired by
Transgenomic. Notwithstanding the foregoing, Transgenomic
will not sell, assign, transfer, encumber, or in any manner
dispose of any of the Group 2 Shares until the earlier of
(a) such time as all Products ordered by Geron under
Addendum Agreement No. 5 have been delivered and accepted by
Geron in accordance with Addendum Agreement No. 5 and with
the Supply Agreement or (b) ninety (90) days after the
Effective Date of this Agreement.
4. REGISTRATION RIGHTS
4.1 Geron agrees to make commercially reasonable best efforts to
file with the Securities and Exchange Commission (the
"Commission") within five (5) 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 Transgenomic. Geron
agrees to diligently pursue making the Registration
Statement effective. Geron will notify Transgenomic 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 Transgenomic receives an opinion
of counsel to Geron, which counsel shall be reasonably
acceptable to Transgenomic, 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(k) or any similar
provision then in effect under the Act in the opinion of
counsel to Geron, which counsel shall be reasonably
acceptable to Transgenomic.
2
4.3 Geron, at its expense, shall furnish to Transgenomic 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 Transgenomic may reasonably
request, in order to facilitate the public sale or other
disposition of all or any of the Shares by Transgenomic,
provided, however, that the obligation of Geron to deliver
copies of prospectuses or preliminary prospectuses to
Transgenomic shall be subject to the receipt by Geron of
reasonable assurances from Transgenomic that Transgenomic
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. Transgenomic shall bear the
cost of fees and expenses of Transgenomic's counsel.
4.5 Geron will advise Transgenomic 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 Transgenomic the benefits
of Rule 144 (or its successor rule) and any other rule or
regulation of the Commission that may at the time permit
Transgenomic to sell the Shares to the public without
registration, Geron covenants and agrees to: (i) make and
keep public information available, as those terms are
understood and defined in Rule 144, until the earliest of
(A) such date as all of the Shares may be resold pursuant to
Rule 144(k) or any other rule of similar effect or (B) such
date as all of the Shares shall have been resold; and (ii)
file with the Commission in a timely manner all reports and
other documents required of Geron under the Act and under
the Exchange Act of 1934, as amended.
4.7 Transgenomic 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 Transgenomic 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 Transgenomic to consent to be named
as an underwriter in any Registration Statement.
5. INDEMNIFICATION.
5.1 Geron agrees to indemnify and hold harmless Transgenomic
(and each person, if any, who controls Transgenomic within
the meaning of Section 15 of the Act, and each officer and
director of Transgenomic) 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
3
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
Transgenomic or such other person expressly for use in the
preparation thereof, (B) the failure of Transgenomic 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 Transgenomic
prior to the pertinent sale or sales by Transgenomic. 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 Transgenomic.
5.2 Transgenomic 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 Transgenomic 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 Transgenomic specifically for use in preparation
of the Registration Statement; provided, however, that
Transgenomic 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 Transgenomic 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 Transgenomic 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 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
4
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 Transgenomic 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 Company,
its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the
performance of all obligations of Company 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
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 TRANSGENOMIC.
TRANSGENOMIC hereby represents, warrants, acknowledges and agrees that:
7.1 Investment. Transgenomic is acquiring the Shares for
Transgenomic's own account, and not directly or indirectly
for the account of any other person. Transgenomic 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. Transgenomic has consulted with its
own attorney, accountant, or investment advisor as
Transgenomic has deemed advisable with respect to the
investment and has determined its suitability for
Transgenomic. Transgenomic 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. Transgenomic has had access
5
to such financial and other information as is necessary in
order for Transgenomic 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 Transgenomic has had access.
Transgenomic 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. Transgenomic 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. Transgenomic 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 Transgenomic's risk capital means and
is not so great in relation to Transgenomic's total
financial resources as would jeopardize the personal
financial needs of Transgenomic in the event such investment
were lost in whole or in part.
7.5 Unregistered Securities. Transgenomic acknowledges that:
7.5.1 Transgenomic 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 Transgenomic hereby certifies that it is an "Accredited
Investor" as that term is defined in Rule 501 under the Act.
8. TAX ADVICE. Transgenomic acknowledges that Transgenomic 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. Transgenomic 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:
6
To Geron at: Geron Corporation
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Transgenomic at: Transgenomic, Inc.
00000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Law Department
telephone: (000) 000-0000
facsimile: (000) 000-0000
10. BINDING EFFECT. This Agreement shall be binding upon the heirs, legal
representatives and successors of Geron and of Transgenomic; provided,
however, that Transgenomic 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.
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, the Common Stock Purchase Agreement
dated as of January 21, 2004, and the Supply Agreement, including
Addendum Agreement No. 5 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.
7
IN WITNESS WHEREOF, the parties hereto have executed this Common Stock
Purchase Agreement as of the date first above written.
Geron Corporation
/s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------------
By: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer and Senior Vice
President, Corporate Development
Transgenomic, Inc.
/s/ Xxxxxx X'Xxxxx
--------------------------------------------------
By: Xxxxxx X'Xxxxx
Title: Chief Executive Officer
8
