EXHIBIT 4.1
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made and entered
into as of January 10, 2007 (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 ServicesAgreements ("Services Agreement")
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 Amendment No. 2 to the Agreement, dated November
22, 2006 ("Amendment No. 2"), Geron may pay for the price of
such services 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 price specified in Amendment No. 2, Geron
will issue and deliver certificates for 111,857 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 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;
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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 MPI; 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. 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 JANUARY 10, 2007. 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 National
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.
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(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 MPI.
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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(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 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
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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.
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;
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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.
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:
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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.
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.
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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.
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 Master Agreement, including
Amendment No. 2 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. Xxxx
----------------------------------------
By: Xxxxx X. Xxxx
Title: Senior Vice President Business
Development and Chief Patent
Counsel
MPI Research, Inc.
/s/ Xxxxxxx Xxxxxx
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By: Xxxxxxx Xxxxxx
Title: Chief Financial Officer
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