EXHIBIT 4.1
COMMON STOCK PURCHASE AGREEMENT
DATED AS OF SEPTEMBER 28, 2004
THIS COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made and entered
into as of September 28, 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 23,
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 Second Installment specified in Addendum
Agreement No. 7, Geron will issue and deliver certificates
for 208,131 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 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:
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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 March 18, 2004, at or prior to the
Closing, must have been duly performed and
complied with in all material respects;
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 SEPTEMBER
28, 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.
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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 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.
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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.
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.
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9. NOTICES. Any notice or other communication required or permitted hereunder
shall be in writing and shall be deemed to have been duly given on the date
of delivery if delivered personally or by facsimile, or one day, not
including Saturdays, Sundays, or national holidays, after sending if sent
by national overnight delivery service, or five days, not including
Saturdays, Sundays, or national holidays, after mailing if mailed by first
class united states mail, certified or registered with return receipt
requested, postage prepaid, and addressed as follows:
To Geron at: Geron Corporation
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To 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
as of April 23, 2004, 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Common Stock
Purchase Agreement as of the date first above written.
GERON CORPORATION
/s/ XXXXXXX X. XXXXXXX
--------------------------------------------
By: Xxxxxxx X. Xxxxxxx
Title: Vice President and General Counsel
TRANSGENOMIC, INC.
/s/ XXXXXXX XXXXXXX
---------------------------------------------
By: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
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