Exhibit 4.1
Stock Purchase Agreement dated as of June 2, 2003, by and between
Registrant and Transgenomic, Inc
EXECUTION COPY - FINAL
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into as of
June 2, 2003, 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 a License Amendment
Agreement, of even date herewith, under which Transgenomic has agreed
to purchase certain shares of Geron's common stock, par value $.001
per share (the "Common Stock") pursuant to the terms and conditions
hereof.
X. Xxxxx and Transgenomic wish to enter into this Agreement in order to
specify the terms and conditions upon which the shares of Common Stock
will be issued by Geron to Transgenomic.
THE PARTIES AGREE AS FOLLOWS:
1. ISSUANCE OF SHARES; PURCHASE PRICE.
1.1 In consideration of the mutual promises contained in the License
Amendment Agreement, on the Closing Date Geron will issue to
Transgenomic three hundred and ten thousand (310,000) shares of
Geron's Common Stock (the "Shares").
1.2 The purchase price for the Shares shall be $5.05 per share, and the
total purchase price for the Shares shall be one million, five hundred
and sixty five thousand, and five hundred United States Dollars
(US$1,565,500.00).
2. CLOSING; DELIVERY.
2.1 The consummation of the transaction contemplated by this Agreement
(the "Closing") shall be held at a mutually convenient location on
June 2, 2003 (the "Closing Date"). At the Closing, Transgenomic shall
pay to Geron the full purchase price for the Shares by wire transfer
to an account designated by Geron, and Geron shall deliver to
Transgenomic, or its designee, one or more certificates representing
all of the Shares. Such Shares shall be issued in the name of
Transgenomic or its designee and in such denominations as Transgenomic
or its designee shall specify.
3. REGISTRATION OF SHARES.
3.1 Geron represents and warrants that the sale of the Shares to
Transgenomic has been registered under the Act by way of a Registration
Statement on Form S-3 filed by the Company with the Securities and Exchange
Commission on January 29, 2002 (the "Registration Statement") and that such
Registration Statement is effective under the Act and that no stop order
suspending the effectiveness of the Registration Statement has been issued
by the SEC in connection therewith and no proceedings for that purpose have
been instituted or are pending, or the Geron's knowledge, have been
threatened by the SEC. Geron agrees that all Shares will be delivered to
Transgenomic at the Closing without any restriction on resale or legend. At
the Closing, Geron will deliver to Transgenomic a copy of the prospectus
contained in the Registration Statement, along with a final prospectus
supplement describing the sale of Shares to Transgenomic hereunder in the
form which has been filed by Geron with the SEC pursuant to Rule 424(b)5
under the Act, and shall further provide such additional copies of the
prospectus and prospectus supplement to Transgenomic as may be necessary to
meet all requirements of the Act with respect to Transgenomic's resale of
said Shares, including Section 4(3) thereof. Neither the Registration
Statement (including, the prospectus contained therein and the information
or documents incorporated by reference therein), as of the time it was
declared effective, nor any amendments or prospectus supplements thereto,
each as of the time of filing, contain any untrue statement of a material
fact or omit to state a fact required to be stated therein or necessary to
make the statements therein not misleading.
3.2 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.
3.3 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.
3.4 All fees, disbursements and out-of-pocket expenses and costs incurred
by Geron 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
its counsel.
3.5 Geron will advise Transgenomic, promptly after it shall receive notice
or obtain knowledge of the issuance of any stop order by the Commission
suspending the effectiveness of the Registration Statement or of the
initiation of any proceeding for that purpose, that 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.
3.6 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.
4. INDEMNIFICATION
4.1 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 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) 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.
4.2 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 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 4.1 hereof.
4.3 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
4, 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 4 (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 4 .
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 is shall elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such
indemnified party, shall be entitled to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified person. After
notice from the indemnifying person to such indemnified person of its
election to assume the defense thereof, such indemnifying person shall
not be liable to such indemnified person for any legal expense
subsequently incurred by such indemnified person in connection with
the defense thereof, provided, however, that if there exists or shall
exist a conflict of interest that would make inappropriate, in the
reasonable opinion of counsel to the indemnified person, for the same
counsel to represent both the indemnified person and such indemnifying
person or any affiliate or associate thereof, the indemnified person
shall be entitled to retain its own counsel at the expense of such
indemnifying person; provided, however, that no indemnifying person
shall be responsible for the fees and expenses of more than on
separate counsel (together with appropriate local counsel) for all
indemnified parties. In no event shall any indemnifying person be
liable in respect to any amounts paid in settlement of any action
unless the indemnifying person shall have approved the terms of such
settlement. No indemnifying person shall, without the prior written
consent of the indemnified person, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified
person is or could have been a party and indemnification could have
been sought hereunder by such indemnified person, unless such
settlement includes an unconditional release of such indemnified
person from all liability on claims that are the subject matter of
such proceeding.
4.4 The provisions of this Section 4 shall survive the termination of this
Agreement.
5. REPRESENTATIONS AND ACKNOWLEDGEMENT OF GERON.
Geron hereby represents, warrants and covenants to Transgenomic as follow:
5.1 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.
5.2 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.
5.3 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.
5.4 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.
6. REPRESENTATIONS AND ACKNOWLEDGMENTS OF TRANSGENOMIC.
Transgenomic hereby represents, warrants, acknowledges and agrees that:
6.1 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. 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.
6.2 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.
6.3 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. 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.
8. 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: Chief Financial Officer
Telephone:(000) 000-0000
Facsimile:(000) 000-0000
To Transgenomic at: Transgenomic, Inc.
00000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telephone:(000) 000-0000
Facsimile:(000) 000-0000
9. 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.
10. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
11. 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.
12. 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.
13. 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.
14. 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.
15. ENTIRE AGREEMENT. This Agreement and the Supply Agreement 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: Chief Financial Officer and Senior
Vice President, Corporate Development
Transgenomic, Inc.
/s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------------
By: Xxxxxxxx X. Xxxxxx
Title: Vice President, Secretary and Treasurer
