Exhibit 4.2
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into
as of January 27, 2004 (the "Effective Date"), by and between GERON CORPORATION,
a Delaware corporation having its principal place of business at 000
Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000 ("Geron"), and TRANSGENOMIC,
INC., a Delaware corporation having its principal place of business at 00000
Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000 ("Transgenomic").
X. Xxxxx and Transgenomic are the parties to that certain Supply
Agreement dated as of June 15, 2002 (the "Supply Agreement"), and
related Addendum Agreements ("Addendum Agreement") under which Geron
has agreed to purchase certain products from Transgenomic and
Transgenomic has agreed to supply such products to Geron on the terms
set forth therein.
B. Pursuant to Addendum Agreement No. 4 effective September 22, 2003
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 partial payment of the Second Installment specified in Addendum
Agreement No. 4, Geron will issue and deliver certificates for 46,417
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 Geron's offices on January 27, 2004 or at
such other time and place as is mutually agreed upon between the
parties, but in any event no later than three (3) business days after
the Effective Date of this Agreement (the "Closing Date"). At the
Closing, Geron shall deliver to Transgenomic one or more certificates
representing all of the Shares, which Shares shall be issued in the
name of Transgenomic or its designee and in such denominations as
Transgenomic shall specify.
2.2 Geron's obligations to issue and deliver the stock certificate(s)
representing the Shares to Transgenomic at the Closing shall be
subject to the following conditions, which may be waived by Geron:
2.2.1 the covenants and obligations that Transgenomic is required to
perform or to comply with pursuant to this Agreement, at or prior
to the Closing, must have been duly performed and complied with
in all material respects; and
2.2.2 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 and under the Common
Stock Purchase Agreement between the parties hereto dated
September 25, 2003, 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 JANUARY 27, 2004.. A COPY OF THE AGREEMENT CAN
BE OBTAINED FROM THE SECRETARY OF GERON."
3.2 Limits on Sales. Transgenomic agrees that if it decides to resell some
or all of the Shares, it will do so only in an appropriate manner
based upon whether the shares are registered or unregistered, i.e. on
the Nasdaq National Market or in a Rule 144A compliant transaction.
Subject to the foregoing restrictions, Transgenomic may sell or resell
the Shares in any lot size, or at any volume, desired by Transgenomic.
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.
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
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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 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
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such other person expressly for use in the preparation thereof, (B)
the failure of Transgenomic to comply with its covenants and
agreements contained in Sections 7.1 or 7.5.2 hereof or (C) any
misstatement or omission in any prospectus that is corrected in any
subsequent prospectus that was delivered to Transgenomic prior to the
pertinent sale or sales by Transgenomic. Such indemnity shall remain
in full force and effect, regardless of any investigation made by such
indemnified party and shall survive the transfer of the Shares by
Transgenomic.
5.2 Transgenomic agrees to indemnify and hold harmless Geron (and each
person, if any, who controls Geron within the meaning of Section 15 of
the Act, each officer of Geron who signs the Registration Statement
and each director of Geron) from and against losses, claims, damages
or liabilities (or actions or proceedings in respect thereof), joint
or several, directly or indirectly based upon or arising out of, (i)
any failure of Transgenomic to comply with the covenants and
agreements contained in Sections 7.1 and 7.5.2 hereof or (ii) any
untrue statement of a material fact contained in the Registration
Statement or any omission of a material fact required to be stated in
the Registration Statement or necessary in order to make the
statements in the Registration Statement not misleading if such untrue
statement or omission was made in reliance upon and in conformity with
written information furnished to Geron by on behalf of Transgenomic
specifically for use in preparation of the Registration Statement;
provided, however, that Transgenomic shall not be liable in any such
case for (A) any untrue statement or omission in the Registration
Statement, prospectus, or other such document which statement is
corrected by Transgenomic and delivered to Geron prior to the sale
from which such loss occurred, (B) any untrue statement or omission in
any prospectus which is corrected by Transgenomic in any subsequent
prospectus, or supplement or amendment thereto, and delivered to Geron
prior to the sale or sales from which a loss or liability arose, or
(C) any failure by Geron to fulfill any of its obligations under
Section 5.1 hereof.
5.3 Promptly after receipt by any indemnified person of a notice of a
claim or the beginning of any action in respect of which indemnity is
to be sought against an indemnifying person pursuant to this Section
5, such indemnified person shall notify the indemnifying person in
writing of such claim or of the commencement of such action, but the
omission to so notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party under this
Section 5 (except to the extent that such omission materially and
adversely affects the indemnifying party's ability to define such
action) or from any liability otherwise than under this Section 5.
Subject to the provisions hereinafter stated, in case any such action
shall be brought against an indemnified person, the indemnifying
person shall be entitled to participate therein, and, to the extent
that it shall elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such
indemnified party, shall be entitled to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified person. After
notice from the indemnifying person to such indemnified person of its
election to assume the defense thereof, such indemnifying person shall
not be liable to such indemnified person for any legal expense
subsequently incurred by such indemnified person in connection with
the defense thereof, provided, however, that if there exists or shall
exist a conflict of interest that would make inappropriate, in the
reasonable opinion of counsel to the indemnified person, for the same
counsel to represent both the indemnified person and such indemnifying
person or any affiliate or associate thereof, the indemnified person
shall be entitled to retain its own counsel at the expense of such
indemnifying person; provided, however, that no indemnifying person
shall be responsible for the fees and expenses of more than on
separate counsel (together with appropriate local counsel) for all
indemnified parties. In no event shall any indemnifying person be
liable in respect to any amounts paid in settlement of any action
unless the indemnifying person shall have approved the terms of such
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.
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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 ACKNOWLEDGEMENTS OF TRANSGENOMIC.
Transgenomic hereby represents, warrants, acknowledges and agrees that:
7.1 Investment. Transgenomic is acquiring the Shares for Transgenomic's
own account, and not directly or indirectly for the account of any
other person. Transgenomic is acquiring the Shares for investment and
not with a view to distribution or resale thereof, except in
compliance with the Act and any applicable state law regulating
securities.
7.2 Access to Information. Transgenomic has consulted with its own
attorney, accountant, or investment advisor as Transgenomic has deemed
advisable with respect to the investment and has determined its
suitability for Transgenomic. Transgenomic has had the opportunity to
ask questions of, and to receive answers from, appropriate executive
officers of Geron with respect to the terms and conditions of the
transactions contemplated hereby and with respect to the business,
affairs, financial condition and results of operations of Geron.
Transgenomic has had access 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,
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agents, representatives, or advisors have made any representation or
warranty other than those specifically expressed herein.
7.3 Business and Financial Expertise. Transgenomic further represents and
warrants that it has such business or financial expertise as to be
able to evaluate its investment in Geron and purchase of the Shares.
7.4 Speculative Investment. Transgenomic acknowledges that the investment
in Geron represented by the Shares is highly speculative in nature and
is subject to a high degree of risk of loss in whole or in part; the
amount of such investment is within Transgenomic's risk capital means
and is not so great in relation to Transgenomic's total financial
resources as would jeopardize the personal financial needs of
Transgenomic in the event such investment were lost in whole or in
part.
7.5 Unregistered Securities. Transgenomic acknowledges that:
7.5.1 Transgenomic must bear the economic risk of investment for an
indefinite period of time because the Shares have not been
registered under the Act and therefore cannot and will not be
sold unless they are subsequently registered under the Act or an
exemption from such registration is available. Geron has made no
agreements, covenants or undertakings whatsoever to register any
of the Shares under the Act, except as provided in Section 4
above. Geron has made no representations, warranties or covenants
whatsoever as to whether any exemption from the Act, including,
without limitation, any exemption for limited sales in routine
brokers' transactions pursuant to Rule 144 under the Act, will
become available and any such exemption pursuant to Rule 144, if
available at all, will not be available unless: (i) a public
trading market then exists in Geron's common stock, (ii) Geron
has complied with the information requirements of Rule 144, and
(iii) all other terms and conditions of Rule 144 have been
satisfied.
7.5.2 Transfer of the Shares has not been registered or qualified
under any applicable state law regulating securities and,
therefore, the Shares cannot and will not be sold unless they are
subsequently registered or qualified under any such act or an
exemption therefrom is available. Geron has made no agreements,
covenants or undertakings whatsoever to register or qualify any
of the Shares under any such act. Geron has made no
representations, warranties or covenants whatsoever as to whether
any exemption from any such act will become available.
7.5.3 Transgenomic hereby certifies that it is an "Accredited
Investor" as that term is defined in Rule 501 under the Act.
8. Tax Advice. Transgenomic acknowledges that Transgenomic has not relied and
will not rely upon Geron or Geron's counsel with respect to any tax
consequences related to the ownership, purchase, or disposition of the
Shares. Transgenomic assumes full responsibility for all such consequences
and for the preparation and filing of all tax returns and elections which
may or must be filed in connection with the Shares.
9. Notices. Any notice or other communication required or permitted hereunder
shall be in writing and shall be deemed to have been duly given on the date
of delivery if delivered personally or by facsimile, or one day, not
including Saturdays, Sundays, or national holidays, after sending if sent
by national overnight delivery service, or five days, not including
Saturdays, Sundays, or national holidays, after mailing if mailed by first
class United States mail, certified or registered with return receipt
requested, postage prepaid, and addressed as follows:
To Geron at: Geron Corporation
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
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Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Transgenomic at: Transgenomic, Inc.
00000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Law Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
10. BINDING EFFECT. This Agreement shall be binding upon the heirs, legal
representatives and successors of Geron and of Transgenomic; provided,
however, that Transgenomic may not assign any rights or obligations under
this Agreement.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
12. INVALID PROVISIONS. In the event that any provision of this Agreement is
found to be invalid or otherwise unenforceable by a court or other tribunal
of competent jurisdiction, such invalidity or unenforceability shall not be
construed as rendering any other provision contained herein invalid or
unenforceable, and all such other provisions shall be given full force and
effect to the same extent as though the invalid and unenforceable provision
was not contained herein.
13. COUNTERPARTS. This Agreement may be executed in any number of identical
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14. AMENDMENTS. This Agreement or any provision hereof may be changed, waived,
or terminated only by a statement in writing signed by the party against
whom such change, waiver or termination is sought to be enforced.
15. FUTURE COOPERATION. Each of the parties hereto agrees to cooperate at all
times from and after the date hereof with respect to all of the matters
described herein, and to execute such further assignments, releases,
assumptions, amendments of the Agreement, notifications and other documents
as may be reasonably requested for the purpose of giving effect to, or
evidencing or giving notice of, the transactions contemplated by this
Agreement.
16. ENTIRE AGREEMENT. This Agreement, the Common Stock Purchase Agreement dated
September 25, 2003, and the Supply Agreement, including Addendum Agreement
No. 4 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: Chief Financial Officer and Senior Vice President,
Corporate Development
Transgenomic, Inc.
/s/ X. X. Xxxxxxx
--------------------------------------------
By: X. X. Xxxxxxx
Title: VP General Counsel
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