EXHIBIT 4.2
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made and entered
into as of April 23, 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. 7, dated as of April 22, 2004,
Geron may pay the purchase price of products by delivery of shares of
Geron's Common Stock (the "Shares").
THE PARTIES AGREE AS FOLLOWS:
1. ISSUANCE OF SHARES; ADJUSTMENTS.
1.1 As payment of the First Installment specified in Addendum
Agreement No. 7, Geron will issue and deliver certificates for
64,855 Shares. Upon issuance and delivery of the certificate(s)
for the Shares, all Shares shall be duly authorized and validly
issued and represent fully paid shares of Geron's Common Stock.
2. CLOSING; DELIVERY.
2.1 The consummation of the transaction contemplated by this
Agreement (a "Closing") shall be held at such time and place as
is mutually agreed upon between the parties, but in any event no
later April 29, 2004 (the "Closing Date"). At the Closing, Geron
shall deliver to Transgenomic one or more certificates
representing all of the Shares, which Shares shall be issued in
the name of Transgenomic or its designee and in such
denominations as Transgenomic shall specify.
2.2 Geron's obligations to issue and deliver the stock certificate(s)
representing the Shares to Transgenomic at the Closing shall be
subject to the following conditions, which may be waived by
Geron:
2.2.1 the covenants and obligations that Transgenomic is required
to perform or to comply with pursuant to this Agreement, at
or prior to the Closing, must have been duly performed and
complied with in all material respects; and
2.2.2 the representations and warranties made by Transgenomic
herein shall be true and correct in all material respects as
of the Closing Date.
2.3 Transgenomic's obligation to accept delivery of the stock
certificate(s) representing the Shares at the Closing shall be
subject to the following conditions, any one or more of which may
be waived by Transgenomic:
2.3.1 the covenants and obligations that Geron is required to
perform or to comply with pursuant to this Agreement, at or
prior to the Closing, must have been duly performed and
complied with in all material respects;
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2.3.2 Geron shall have available under its Certificate of
Incorporation sufficient authorized shares of Common Stock
to issue the Shares to Transgenomic; and
2.3.3 the representation and warranties made by the Geron herein
shall be true and correct in all material respects as of any
Closing Date.
3. RESTRICTIONS ON RESALE OF SHARES.
3.1 Legends. Transgenomic understands and acknowledges that the
Shares are not registered under the Securities Act of 1933 (the
"Act"), and that under the Act and other applicable laws
Transgenomic may be required to hold such Shares for an
indefinite period of time. Each stock certificate representing
Shares shall bear the following legends:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). ANY
TRANSFER OF SUCH SECURITIES SHALL BE INVALID UNLESS A
REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH
TRANSFER OR, IN THE OPINION OF COUNSEL REASONABLY ACCEPTABLE
TO GERON, SUCH REGISTRATION IS UNNECESSARY FOR SUCH TRANSFER
TO COMPLY WITH THE ACT. THE SECURITIES REPRESENTED HEREBY
ARE SUBJECT TO THE TERMS OF THE COMMON STOCK PURCHASE
AGREEMENT, DATED AS OF APRIL 23, 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 sale or
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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 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.
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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 ACKNOWLEDGMENTS 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,
agents, representatives, or advisors have made any representation
or warranty other than those specifically expressed herein.
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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
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Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Transgenomic at: Transgenomic, Inc.
00000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Law Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
10. BINDING EFFECT. This Agreement shall be binding upon the heirs, legal
representatives and successors of Geron and of Transgenomic; provided,
however, that Transgenomic may not assign any rights or obligations
under this Agreement.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
12. INVALID PROVISIONS. In the event that any provision of this Agreement
is found to be invalid or otherwise unenforceable by a court or other
tribunal of competent jurisdiction, such invalidity or
unenforceability shall not be construed as rendering any other
provision contained herein invalid or unenforceable, and all such
other provisions shall be given full force and effect to the same
extent as though the invalid and unenforceable provision was not
contained herein.
13. COUNTERPARTS. This Agreement may be executed in any number of
identical counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
14. AMENDMENTS. This Agreement or any provision hereof may be changed,
waived, or terminated only by a statement in writing signed by the
party against whom such change, waiver or termination is sought to be
enforced.
15. FUTURE COOPERATION. Each of the parties hereto agrees to cooperate at
all times from and after the date hereof with respect to all of the
matters described herein, and to execute such further assignments,
releases, assumptions, amendments of the Agreement, notifications and
other documents as may be reasonably requested for the purpose of
giving effect to, or evidencing or giving notice of, the transactions
contemplated by this Agreement.
16. ENTIRE AGREEMENT. This Agreement and the Supply Agreement, including
Addendum Agreement No. 7 thereto, constitute the entire agreement of
the parties pertaining to the Shares and supersede all prior and
contemporaneous agreements, representations, and understandings of the
parties with respect thereto.
IN WITNESS WHEREOF, the parties hereto have executed this Common Stock
Purchase Agreement as of the date first above written.
Geron Corporation
/s/ Xxxxx X. Xxxxxxxxx
-------------------------------------------------
By: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President and Chief
Financial Officer
Transgenomic, Inc.
/s/ Xxxxxx X'Xxxxx
-------------------------------------------------
By: Xxxxxx X'Xxxxx
Title: Chief Executive Officer
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