EXHIBIT 4.2
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered into
as of March 23, 2004 by and between Geron Corporation, a Delaware corporation
having its principal place of business at 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx,
Xxxxxxxxxx 00000 (the "Company"), and Xxxxx X. Xxxxxxxx Organization, a
California corporation having an office at 00 Xxxxxxxxx Xxxx, Xxx Xxxxx, XX
00000-0000 (the "Acquirer").
A. The Company has agreed to issue, and the Acquirer has agreed to
accept, shares of the Company's common stock, par value $.001 per
share (the "Common Stock") to Acquirer in payment of the Company's
rent obligations for the period from February 1, 2004 through July
31, 2008 under a lease dated January 20, 1993 to the premises at 000
Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx, as amended and extended,
and a lease dated March 25, 1996 to the premises at 000 Xxxxxxxxxxxx
Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx, as amended and extended (collectively,
the "Leases").
B. The Acquirer and the Company desire to specify the terms and
conditions of the Company's issuance of such common stock.
THE PARTIES AGREE AS FOLLOWS:
1. ISSUANCE OF SHARES; PURCHASE PRICE. The Acquirer hereby acquires and
the Company hereby issues to Acquirer 363,039 shares (the "Shares") of Common
Stock in consideration of the premises conveyed pursuant to the Leases. 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 the
Company'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 (the "Closing
Date"). At the Closing, the Company shall deliver to the
Acquirer one or more certificates representing all of the
Shares, which Shares shall be issued in the name of the
Acquirer or its designee and in such denominations as the
Acquirer shall specify.
2.2. The Company's obligations to issue and deliver the stock
certificate(s) representing the Shares to the Acquirer at the
Closing shall be subject to the following conditions, which
may be waived by the Company:
2.2.1. the covenants and obligations that the Acquirer 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 the
Acquirer herein shall be true and correct in all
material respects as of the Closing Date.
2.3. The Acquirer'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 the Acquirer:
2.3.1. the covenants and obligations that the Company is
required to perform or to comply with pursuant to this
Agreement, at or prior to the Closing, must have been
duly performed and complied with in all material
respects;
2.3.2. The Company shall have available under its Certificate
of Incorporation sufficient authorized shares of
Common Stock to issue the Shares to the Acquirer; and
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2.3.3. the representation and warranties made by the Company
herein shall be true and correct in all material
respects as of any Closing Date.
3. RESTRICTIONS ON RESALE OF SHARES.
3.1. Legends. The Acquirer understands and acknowledges that the
Shares are not registered under the Securities Act of 1933
(the "Act") and that under the Act and other applicable laws
the Acquirer may be required to hold such Shares for an
indefinite period of time. Each stock certificate representing
Shares shall bear the following legends:
3.1.1. "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY TRANSFER OF SUCH SECURITIES
SHALL BE INVALID UNLESS A REGISTRATION STATEMENT
UNDER THE ACT IS IN EFFECT AS TO SUCH TRANSFER OR, IN
THE OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE
COMPANY, SUCH REGISTRATION IS UNNECESSARY FOR SUCH
TRANSFER TO COMPLY WITH THE ACT. THE SECURITIES
REPRESENTED HEREBY ARE SUBJECT TO THE TERMS OF THE
COMMON STOCK PURCHASE AGREEMENT, DATED AS OF March
23, 2004. A COPY OF THE AGREEMENT CAN BE OBTAINED
FROM THE SECRETARY OF THE COMPANY."
3.2. Limits on Sales. The Acquirer 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, the Acquirer may sell or resell the
Shares in any lot size, or at any volume, desired by the
Acquirer.
4. REGISTRATION RIGHTS
4.1. The Company agrees to file with the Securities and Exchange
Commission ("Commission"), as promptly as practicable and in
any event within twenty (20) days after the execution of this
Agreement by both parties, a registration statement under the
Act (the "Registration Statement"), on Form S-3 or other
appropriate form, so as to permit a non-underwritten public
offering and resale of the Shares under the Act by the
Acquirer. The Company agrees to diligently pursue making that
registration statement effective. The Company will notify the
Acquirer of the effectiveness of the Registration Statement
within one business day of receiving notice from the
Commission.
4.2. The Company will maintain the Registration Statement or
post-effective amendment filed under this Section 3 effective
under the Act until the earliest of (i) the date that none of
the Shares covered by such Registration Statement are or may
become issued and outstanding, (ii) the date that all of the
Shares have been sold pursuant to such Registration Statement,
(iii) the date the Acquirer receives an opinion of counsel to
the Company, which counsel shall be reasonably acceptable to
the Acquirer, that the Shares may be sold under the provisions
of Rule 144 without limitation as to volume, (iv) the date
that all Shares have been otherwise transferred to persons who
may trade such shares without restriction under the Act, and
the Company has delivered a new certificate or other evidence
of ownership for such securities not bearing a restrictive
legend, or (v) the date all Shares may be sold at any time,
without volume or manner of sale limitations pursuant to Rule
144(k) or any similar provision then in effect under the Act
in the opinion of counsel to the Company, which counsel shall
be reasonably acceptable to the Acquirer (the "Effectiveness
Period").
4.3. All fees, disbursements and out-of-pocket expenses and costs
incurred by the Company in connection with the preparation and
filing of the Registration Statement under Section 3.1 and in
complying with applicable securities and Blue Sky laws
(including, without limitation, all attorneys' fees of the
Company) shall be borne by the Company. The Acquirer shall
bear the cost of underwriting and/or brokerage discounts, fees
and commissions, if any, applicable to the Shares being
registered and the fees and expenses of their counsel. The
Company at its expense will supply the Acquirer with copies of
the applicable Registration Statement and the prospectus
included therein and other related documents in such
quantities as may be reasonably requested by the Acquirer.
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4.4. The Acquirer will cooperate with the Company in all respects
in connection with this Agreement, including timely supplying
all information reasonably requested by the Company (which
shall include all information regarding the Acquirer and
proposed manner of sale of the Shares required to be disclosed
in any Registration Statement) and executing and returning all
documents reasonably requested in connection with the
registration and sale of the Shares and entering into and
performing their obligations under any underwriting agreement,
if the offering is an underwritten offering, in usual and
customary form, with the managing underwriter or underwriters
of such underwritten offering. Nothing in this Agreement
shall obligate the Acquirer to consent to be named as an
underwriter in any Registration Statement.
5. REPRESENTATIONS AND ACKNOWLEDGEMENT OF THE COMPANY.
The Company hereby represents, warrants and covenants to the Acquirer
as follow:
5.1. Organization, Good Standing and Qualification. The Company is
a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all
requisite corporate power and authority to carry on its
business as now conducted and as presently proposed to be
conducted. The Company is duly qualified to transact business
and is in good standing as a foreign corporation in each
jurisdiction in which the failure to so qualify would have a
material adverse effect on its business or properties.
5.2. Authorization. All corporate action on the party of the
Company, its officers, directors and stockholders necessary
for the authorization, execution and delivery of this
Agreement, the performance of all obligations of the Company
hereunder and the authorization, issuance and delivery of the
Shares has been taken or will be taken prior to the Closing,
and this Agreement, when executed and delivered will
constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with
their terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
and other laws of general application affecting enforcement of
creditors' rights generally, as limited by laws relating to
the availability of specific performance, injunctive relief or
other equitable remedies.
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 the
Company that questions the validity of this Agreement or the
right of the Company to enter into this Agreement or to
consummate this transactions contemplated hereby, nor is the
Company aware of any basis for any of the forgoing. The
Company is neither a party nor subject to the provisions of
any order, writ, injunction, judgment or decree of any court
or government agency or instrumentality that would affect the
ability of the Company to enter into this Agreement or to
consummate the transactions contemplated hereby.
5.5. Form S-3 Eligibility. As of the date of this Agreement, the
Company meets the requirements for the use of Form S-3 for
registration of the resale by the Acquirer of the Shares, and
it will use its commercially reasonable efforts to continue to
meet such requirements during the period in which it takes to
have the Registration Statement declared effective.
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6. REPRESENTATIONS AND ACKNOWLEDGMENTS OF THE ACQUIRER.
The Acquirer hereby represents, warrants, acknowledges and agrees that:
6.1. Investment. The Acquirer is acquiring the Shares for the
Acquirer's own account, and not directly or indirectly for the
account of any other person. The Acquirer is acquiring the
Shares for investment and not with a view to distribution or
resale thereof except in compliance with the Act and any
applicable state law regulating securities. If the Acquirer
decides to resell some or all of the Shares, it will use a
broker satisfactory to the Company, and cause or instruct the
broker to sell in an orderly manner, limiting sales to
lot-size and volumes consistent with normal trading levels in
the Company's stock.
6.2. Access to Information. Acquirer has consulted with its own
attorney, accountant, or investment advisor as the Acquirer
has deemed advisable with respect to the investment and has
determined its suitability for Acquirer. The Acquirer has had
the opportunity to ask questions of, and to receive answers
from, appropriate executive officers of the Company with
respect to the terms and conditions of the transactions
contemplated hereby and with respect to the business, affairs,
financial condition and results of operations of the Company.
The Acquirer has had access to such financial and other
information as is necessary in order for the Acquirer to make
a fully informed decision as to investment in the Company, and
has had the opportunity to obtain any additional information
necessary to verify any of such information to which the
Acquirer has had access. Acquirer acknowledges that neither
the Company nor any of its officers, directors, employees,
agents, representatives, or advisors have made any
representation or warranty.
6.3. Business and Financial Expertise. The Acquirer further
represents and warrants that it has such business or financial
expertise as to be able to evaluate its investment in the
Company and purchase of the Shares.
6.4. Speculative Investment. The Acquirer acknowledges that the
investment in the Company represented by the Shares is highly
speculative in nature and is subject to a high degree of risk
of loss in whole or in part; the amount of such investment is
within the Acquirer's risk capital means and is not so great
in relation to the Acquirer's total financial resources as
would jeopardize the personal financial needs of the Acquirer
in the event such investment were lost in whole or in part.
6.5. Unregistered Securities. Acquirer acknowledges that:
6.5.1. The Acquirer must bear the economic risk of
investment for an indefinite period of time because
the Shares have not been registered under the Act and
therefore cannot and will not be sold unless they are
subsequently registered under the Act or an exemption
from such registration is available. The Company has
made no agreements, covenants or undertakings
whatsoever to register any of the Shares under the
Act, except as provided in Section 3 above. The
Company has made no representations, warranties or
covenants whatsoever as to whether any exemption from
the Act, including, without limitation, any exemption
for limited sales in routine brokers' transactions
pursuant to Rule 144 under the Act, will become
available and any such exemption pursuant to Rule
144, if available at all, will not be available
unless: (i) a public trading market then exists in
the Company's common stock, (ii) the Company has
complied with the information requirements of Rule
144, and (iii) all other terms and conditions of Rule
144 have been satisfied.
6.5.2. Transfer of the Shares has not been registered or
qualified under any applicable state law regulating
securities and, therefore, the Shares cannot and will
not be sold unless they are subsequently registered
or qualified under any such act or an exemption
therefrom is available. The Company has made no
agreements, covenants or undertakings whatsoever to
register or qualify any of the Shares under any such
act. The Company has made no representations,
warranties or covenants whatsoever as to whether any
exemption from any such act will become available.
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6.5.3. The Acquirer hereby certifies that it is an
"accredited investor" as that term is defined in Rule
501 under the Act.
7. TAX ADVICE. The Acquirer acknowledges that the Acquirer has not relied
and will not rely upon the Company or the Company's counsel with respect to any
tax consequences related to the ownership, purchase, or disposition of the
shares. The Acquirer assumes full responsibility for all such consequences and
for the preparation and filing of all tax returns and elections which may or
must be filed in connection with such shares.
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 service if served personally or five days, not including Saturdays,
Sundays, or national holidays, after mailing if mailed by first class United
States mail, certified or registered with return receipt requested, postage
prepaid, and addressed as follows:
To the Company at: Geron Corporation
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the Acquirer at: Xxxxx X. Xxxxxxxx Organization
00 Xxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000-0000
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 the Company and of the Acquirer; provided,
however, that the Acquirer may not assign any rights or obligations under this
Agreement. The Company's rights under this Agreement shall be freely assignable.
10. ATTORNEYS' FEES. If any action or proceeding or arbitration is
commenced by either party to enforce its rights under this Agreement or to
collect damages as a result of the breach of any of the provisions of this
Agreement, the prevailing party in such action or proceeding or arbitration,
including any bankruptcy, insolvency or appellate proceedings, shall be entitled
to recover all reasonable out-of-pocket costs and expenses, including, without
limitation, reasonable attorneys' fees and court costs, in addition to any other
relief awarded by the court or arbitrator.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, United States of America.
12. ENTIRE AGREEMENT. This Agreement, together with the Leases, constitutes
the entire agreement of the parties pertaining to the Shares and supersedes all
prior and contemporaneous agreements, representations, and understandings of the
parties.
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IN WITNESS WHEREOF, the parties hereto have executed this 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
XXXXX X. XXXXXXXX ORGANIZATION
/s/ Xxxxxx X. Xxxxxxx
---------------------
By:
Title: Chairman
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