EXHIBIT 4.2
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into as
of April 6, 2005 (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. 10, dated as of April 6, 2005,
Geron may pay the purchase price of products by delivery of shares of
Geron's Common Stock (the "Shares").
THE PARTIES AGREE AS FOLLOWS:
1. ISSUANCE OF SHARES; ADJUSTMENTS.
1.1 As payment of the First Installment specified in Addendum
Agreement No. 10, Geron will issue and deliver certificates
for 25,796 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 April 13, 2005 (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
2.2.2 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,
at or prior to the Closing, must have been duly
performed and complied with in all material respects;
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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 AS OF APRIL 6, 2005. 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.
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.
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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 alleged omission
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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
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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 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:
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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 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.
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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:
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.
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16. ENTIRE AGREEMENT. This agreement and the supply agreement, including
addendum agreement no. 10 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
Transgenomic, Inc.
/s/ Xxxxxxxx X. Xxxxxx
---------------------------------------
By: Xxxxxxxx X. Xxxxxx
Title: Vice President, Secretary &
Treasurer
