EXHIBIT 10.27
EXHIBIT H
STOCK PURCHASE AGREEMENT
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "AGREEMENT") is made and
entered into as of March 5, 2002, by and between Geron Corporation, a Delaware
corporation having its principal place of business at 000 Xxxxxxxxxxxx Xxxxx,
Xxxxx Xxxx, Xxxxxxxxxx 00000 (the "COMPANY"), and Lynx Therapeutics, Inc., a
Delaware corporation having its principal place of business at 00000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxxxx, XX 00000 (the "ACQUIRER").
A. The Company has agreed to issue 210,000 shares of the Company's
common stock, par value $.001 per share (the "COMMON STOCK") to
Acquirer pursuant to that certain Purchase Agreement between the
Company and Acquirer dated as of March 5, 2002 (the "PURCHASE
AGREEMENT").
B. The Acquirer and the Company desire to specify the terms and
conditions of the Company's issuance of such common stock.
THE PARTIES AGREE AS FOLLOWS:
1. ISSUANCE OF SHARES; PURCHASE PRICE. The Acquirer hereby acquires and the
Company hereby issues to Acquirer 210,000 shares (the "SHARES") of
Common Stock in consideration of the license granted pursuant to that
certain License Agreement between the Company and the Acquirer dated as
of March 5, 2002.
2. CLOSING; DELIVERY. The consummation of the transaction contemplated by
this Agreement (the "CLOSING") shall be held on the date hereof
("CLOSING DATE"). The Closing shall be held at the offices of the
Company or at such other time or place as Acquirer and the Company may
mutually agree. At the Closing, the Company shall deliver to the
Acquirer a stock certificate, in the name of the Acquirer, representing
the Shares against delivery of the Patent Assignment (as defined in the
Purchase Agreement).
3. CLOSING CONDITIONS.
3.1 The Company's respective obligations to issue and deliver the
stock certificate representing the Shares to the Acquirer shall
be subject to the following condition, which may be waived by the
Company:
3.1.1 the execution of the Purchase Agreement; and
3.1.2 the accuracy of the representations and warranties made by
the Acquirer shall be true and correct in all material
respects as of the Closing Date.
3.2 The Acquirer's obligation to accept delivery of the stock
certificate representing the Shares shall be subject to the
following conditions, any one or more of which may be waived the
Acquirer:
3.2.1 the execution of the Purchase Agreement;
3.2.2 the covenants and obligations that the Company 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;
3.2.3 the Company shall have available under its Certificate of
Incorporation sufficient authorized shares of capital
stock to issue and sell the Shares to Acquirer; and
3.2.4 the accuracy of the representations and warranties made by
the Company shall be true and correct in all material
respects as of the Closing Date.
4. RESTRICTIONS ON RESALE OF SHARES.
4.1 Legends. The Acquirer 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 the
Acquirer 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 THE COMPANY, 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 MARCH 5, 2002. A COPY OF
THE AGREEMENT CAN BE OBTAINED FROM THE SECRETARY OF THE COMPANY."
5. REGISTRATION RIGHTS
5.1 The Company agrees to prepare and file with the Securities and
Exchange Commission ("Commission"), on or before March 8, 2002, 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 the Acquirer. The Company agrees to
diligently pursue making that registration statement effective as
soon as practicable following the execution of this Agreement.
The Company will notify the Acquirer of the effectiveness of the
Registration Statement within one business day of receiving
notice from the Commission.
5.2 The Company will prepare and file with the Commission such
amendments and supplements to the Registration Statement and the
prospectus as may be necessary to keep the Registration Statement
or post-effective amendment filed under this Section 5 effective
under the Act until the earlier of (i) the date that none of the
Shares covered by such Registration Statement are outstanding,
(ii) the date that all of the Shares have been sold pursuant to
such Registration Statement, (iii) the date the Acquirer receives
an opinion of counsel to the Company, which counsel shall be
reasonably acceptable to the Acquirer, 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 the Company 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 the Company, which
counsel shall be reasonably acceptable to the Acquirer (the
"Effectiveness Period").
5.3 The Company shall furnish to the Acquirer 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 the Acquirer
may reasonably request, in order to facilitate the public sale or
other disposition of all or any of the Shares by the Acquirer,
provided, however, that the obligation of the Company to deliver
copies of prospectuses or preliminary prospectuses to the
Acquirer shall be subject to the receipt by the Company of
reasonable assurances from the Acquirer that the Acquirer 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.
5.4 All fees, disbursements and out-of-pocket expenses and costs
incurred by the Company in connection with the preparation and
filing of the Registration Statement and any post-effective
amendments thereto under this Section 5 and in complying with
applicable securities and Blue Sky laws (including, without
limitation, all attorneys' fees of the Company) shall be borne by
the Company. The Acquirer shall bear the cost of underwriting
and/or brokerage discounts, fees and commissions, if any,
applicable to the Shares being registered and the fees and
expenses of their counsel. The Company at its expense will supply
the Acquirer with copies of the applicable Registration Statement
and the prospectus included therein and other related documents
in such quantities as may be reasonably requested by the
Acquirer.
5.5 The Company will advise the Acquirer, 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, that the Company 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.
5.6 With a view to making available to the Acquirer the benefits of
Rule 144 (or its successor rule) and any other rule or regulation
of the Commission that may at any time permit the Acquirer to
sell the Securities to the public without registration, the
Company covenants and agrees to: (i) make and keep public
information available, as those terms are understood and defined
in Rule 144, until the earlier 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 the Company under the
Act and under the Exchange Act of 1934, as amended.
5.7 The Acquirer will cooperate with the Company in all respects in
connection with this Agreement, including timely supplying all
information reasonably requested by the Company (which shall
include all information regarding the Acquirer 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 the Acquirer
to consent to be named as an underwriter in any Registration
Statement.
5.8 If the Registration Statement has not been declared effective by
the Commission on or before April 30, 2002 (the "Option Date"),
then the Acquirer shall have the option to return for
cancellation (the "Cancellation Option") all of the Shares to the
Company. As consideration for the return of the Shares to the
Company for cancellation, the Company shall pay to Acquirer an
amount equal to One Million Five Hundred Thousand Dollars
($1,500,000), payable in immediately available funds. The
Acquirer shall not be required to make any representations or
warranties with respect to the Shares, except with respect to its
ownership of the Shares. At anytime following the Option Date,
the Acquirer may exercise the Cancellation Option by delivering
written notice to the Company that states that it has elected to
exercise the Cancellation Option (the "Cancellation Option
Exercise Notice"). If the Cancellation Option Notice is not
received by the Company within thirty (30) days following the
Option Date, then the Cancellation Option shall expire and be of
no further force or effect. This Cancellation Option shall not be
enforceable by any transferee of the Shares held by the Acquirer.
6. INDEMNIFICATION.
For the purpose of this Section 6:
the term "Registration Statement" shall include any final prospectus, exhibit,
supplement or amendment included in or relating to the Registration Statement
referred to in Section 5.1; and the term "untrue statement" shall include any
untrue statement or alleged untrue statement, or any omission or alleged
omission to state in the Registration Statement a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
6.1 The Company agrees to indemnify and hold harmless the Acquirer
from and against any losses, claims, damages or liabilities to
which the Acquirer may become subject (under the Act or
otherwise) insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arise out of, or
are based upon (i) any untrue statement of a material fact
contained in the Registration Statement, (ii) 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 or (iii) any failure by the Company to
fulfill any undertaking included in the Registration Statement,
and the Company will reimburse the Acquirer for any reasonable
legal or other expenses reasonably incurred in investigating,
defending or preparing to defend any such action, proceeding or
claim, provided, however, that the Company shall not be liable in
any such case to the extent that such loss, claim, damage or
liability arises out of, or is based upon, an untrue statement
made in such Registration Statement in reliance upon and in
conformity with written information furnished to the Company by
or on behalf of the Acquirer specifically for use in preparation
of the Registration Statement or the failure of the Acquirer to
comply with its covenants and agreements contained in Sections
8.1 or 8.5.2 hereof or any misstatement or omission in any
prospectus that is corrected in any subsequent prospectus that
was delivered to the Acquirer prior to the pertinent sale or
sales by the Acquirer.
6.2 The Acquirer agrees to indemnify and hold harmless the Company
(and each person, if any, who controls the Company within the
meaning of Section 15 of the Act, each officer of the Company who
signs the Registration Statement and each director of the
Company) from and against any losses, claims, damages or
liabilities to which the Company (or any such officer, director
or controlling person) may become subject (under the Act or
otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise
out of, or are based upon, (i) any failure to comply with the
covenants and agreements contained in Sections 8.1 or 8.5.2
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 the Company by or on behalf of the Acquirer
specifically for use in preparation of the Registration
Statement, and the Acquirer
will reimburse the Company (or such officer, director or
controlling person), as the case may be, for any legal or other
expenses reasonably incurred in investigating, defending or
preparing to defend any such action, proceeding or claim;
provided, however, that the Acquirer 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 the Acquirer and delivered to the
Company prior to the sale from which such loss occurred, (B) any
untrue statement or omission in any prospectus which is corrected
by the Acquirer in any subsequent prospectus, or supplement or
amendment thereto, and delivered to the Company prior to the sale
or sales from which a loss or liability arose, or (C) any failure
by the Company to fulfill any of its obligations under Section
6.1 hereof.
6.3 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 6, 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 6 (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 6. 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 expenses 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 it 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 one separate counsel (together with
appropriate local counsel) for all indemnified parties. In no
event shall any indemnifying person be liable in respect of 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.
7. REPRESENTATIONS AND ACKNOWLEDGMENTS OF THE COMPANY.
The Company hereby represents, warrants and covenants to the Acquirer as
follows:
7.1 Organization, Good Standing and Qualification. The Company 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. The Company
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.
7.2 Authorization. All corporate action on the part 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 the Company, enforceable against the Company 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.
7.3 Valid Issuance of Common Stock. The Shares that are being
purchased by Acquirer hereunder, 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.
7.4 Legal Proceedings and Orders. There is no action, suit,
proceeding or investigation pending or threatened against the
Company that questions the validity of this Agreement or the
right of the Company to enter into this Agreement or to
consummate the transactions contemplated hereby, nor is the
Company aware of any basis for any of the forgoing. The Company
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 the
Company to enter into this Agreement or to consummate the
transactions contemplated hereby.
8. REPRESENTATIONS AND ACKNOWLEDGMENTS OF THE ACQUIRER.
The Acquirer hereby represents, warrants, acknowledges and agrees that:
8.1 Investment. The Acquirer is acquiring the Shares for the
Acquirer's own account, and not directly or indirectly for the
account of any other person. The Acquirer 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.
8.2 Access to Information. Acquirer has consulted with its own
attorney, accountant, or investment advisor as the Acquirer has
deemed advisable with respect to the investment and has
determined its suitability for Acquirer. The Acquirer has had the
opportunity to ask questions of, and to receive answers from,
appropriate executive officers of the Company 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 the Company. The Acquirer has had access
to such financial and other information as is necessary in order
for the Acquirer to make a fully informed decision as to
investment in the Company, and has had the opportunity to obtain
any additional information necessary to verify any of such
information to which the Acquirer has had access. Acquirer
acknowledges that neither the Company nor any of its officers,
directors, employees, agents, representatives, or advisors have
made any representation or warranty.
8.3 Business and Financial Expertise. The Acquirer further represents
and warrants that it has such business or financial expertise as
to be able to evaluate its investment in the Company and purchase
of the Shares.
8.4 Speculative Investment. The Acquirer acknowledges that the
investment in the Company 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
the Acquirer's risk capital means and is not so great in relation
to the Acquirer's total financial resources as would jeopardize
the personal financial needs of the Acquirer in the event such
investment were lost in whole or in part.
8.5 Unregistered Securities. Acquirer acknowledges that:
8.5.1 The Acquirer 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. The Company has made no agreements, covenants
or undertakings whatsoever to register any of the Shares
under the Act, except as provided in Section 5 above. The
Company 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 the Company's common stock, (ii) the Company has
complied with the information requirements of Rule 144,
and (iii) all other terms and conditions of Rule 144 have
been satisfied.
8.5.2 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. The Company has made no agreements, covenants
or undertakings whatsoever to register or qualify any of
the Shares under any such act, except as provided in
Section 5 above. The Company has made no representations,
warranties or covenants whatsoever as to whether any
exemption from any such act will become available.
8.5.3 The Acquirer hereby certifies that it is an "accredited
investor" as that term is defined in Rule 501 under the
Act.
9. TAX ADVICE. The Acquirer acknowledges that the Acquirer has not relied
and will not rely upon the Company or the Company's counsel with respect
to any tax consequences related to the ownership, purchase, or
disposition of the shares. The Acquirer 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 such
shares.
10. 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 service if served personally 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 the Company at: Geron Corporation
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the Acquirer at: Lynx Therapeutics, Inc.
00000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
11. BINDING EFFECT. This Agreement shall be binding upon the heirs, legal
representatives and successors of the Company and of the Acquirer;
provided, however, that the Acquirer may not assign any rights or
obligations under this Agreement. The Company's rights under this
Agreement shall be freely assignable.
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the
parties pertaining to the Shares and supersedes all prior and
contemporaneous agreements, representations, and understandings of the
parties.
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
LYNX THERAPEUTICS, INC.
/s/ Xxxxxx X. X. Xxxxxxx
--------------------------------------------
By: Xxxxxx X. X. Xxxxxxx
Title: President and Chief Executive Officer
