Exhibit 10.4
EXECUTION COPY
AMENDED AND RESTATED COMMON STOCK PURCHASE AGREEMENT
This Amended and Restated Common Stock Purchase Agreement (this
"Agreement") is made and effective as of April 8, 2003 by and among Geron
Corporation, a Delaware corporation (the "Company"), and the Purchasers
identified in the signature pages attached hereto (each, a "Purchaser" and,
collectively, the "Purchasers").
WHEREAS, the Company and the Purchasers entered into a Common Stock
Purchase Agreement dated as of April 7, 2003 (the "Original Purchase Agreement")
pursuant to which the Company issued and sold certain shares of the Company's
common stock, $0.001 par value per share (the "Common Stock") and warrants to
purchase shares of Common Stock.
WHEREAS, subject to the terms and conditions set forth in this Agreement,
the Company desires to sell to the Purchasers and the Purchasers severally
desire to purchase from the Company additional shares of Common Stock, as more
fully set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement and for other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the Company and the Purchasers agree that the
terms of the Original Purchase Agreement shall be amended and restated as
follows as if so amended and restated as of the date of the Original Purchase
Agreement:
1. Closing.
(a) The closing of the sale of the securities contemplated hereby (the
"Closing") shall take place at the offices of Proskauer Rose LLP ("Purchaser
Counsel"), ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on April 8, 2003 or on such
date or location as the parties shall otherwise agree. The date of the Closing
is hereinafter referred to as the "Closing Date." At the Closing: (x) the
Company shall issue and deliver to each Purchaser (i) a stock certificate,
registered in the name of such Purchaser and free of all restrictive legends,
representing the number of shares of Common Stock (the shares of Common Stock
issued and sold to the Purchasers hereunder are collectively, the "Shares")
equal to the quotient obtained by dividing (a) the purchase price set forth
below such Purchaser's signature to this Agreement by (b) $4.60, or, for
Purchasers who provide the necessary account information to the Company, the
Company shall issue and deliver such Shares in a balance account with The
Depository Trust Company through its Deposit Withdrawal Agent Commission System,
(ii) a warrant in the form of Exhibit A hereto (the "Warrant"), registered in
the name of such Purchaser, pursuant to which the Purchaser shall have the right
to acquire the number of shares of Common Stock indicated below such Purchaser's
signature to this Agreement, (iii) a prospectus supplement with respect to the
Registration Statement (as defined in Section 2(e)) reflecting the sale of the
Securities (the "Supplement"), and (iv) the legal opinion of the Company's
outside counsel substantially in the form of Exhibit B; and (y) each Purchaser
shall deliver to the Company the purchase price set forth below such Purchaser's
signature to this Agreement, in immediately available funds by wire transfer to
an account designated in writing by the Company for such purpose.
(b) The obligation of the Purchasers to purchase and acquire Securities
under this Agreement is subject to the fulfillment (or waiver by such Purchaser)
of each of the following conditions:
(i) The Company shall have filed the Supplement with the Securities
and Exchange Commission (the "Commission").
(ii) The Registration Statement (as defined in Section 2(g) below)
shall be effective on the Closing Date as to all Securities, not
subject to any threatened or actual stop order and will not on
the Closing Date contain any untrue statement of material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
(iii) The Company shall have provided a certificate from a duly
authorized officer certifying on behalf of the Company that each
of the conditions set forth in this Section 1(b) shall have been
satisfied.
(c) For the purposes of this Agreement, the following definitions shall
apply:
"Eligible Market" means any of the New York Stock Exchange, the American
Stock Exchange, the Nasdaq National Market or the Nasdaq Small Cap Market.
"Person" means any court or other federal, state, local or other
governmental authority or other individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
"Securities" means the Shares and Warrants (including the Common Stock
issuable upon exercise of the Warrants) issued or issuable pursuant to this
Agreement, together with any securities issued or issuable upon any stock split,
dividend or other distribution, recapitalization or similar event with respect
to the foregoing.
"Subsidiaries" means any subsidiary, as defined in Rule 1-02(x) of
Regulation S-X promulgated by the Commission, of the Company.
"Trading Day" means (a) any day on which the Common Stock is listed or
quoted and traded on the Nasdaq National Market, (b) if the Common Stock is not
then listed or quoted and traded on any Eligible Market, then a day on which
trading occurs on the Nasdaq National Market (or any successor thereto), or (c)
if trading does not occur on the Nasdaq National Market (or any successor
thereto), any business day.
"Transaction Documents" means this Agreement, the Warrants and any other
documents or agreements executed in connection with the transactions
contemplated hereunder.
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2. Representations and Warranties of the Company. The Company hereby makes
the following representations and warranties to each of the Purchasers:
(a) Organization and Qualification. Each of the Company and its
Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization (as applicable), with the requisite power and
authority to own and use its properties and assets and to carry on its business
as currently conducted. Neither the Company nor any Subsidiary is in violation
of any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter documents. Each of the
Company and the Subsidiaries is duly qualified to do business and is in good
standing as a foreign corporation or other entity in each jurisdiction in which
the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good
standing, as the case may be, could not, individually or in the aggregate, (i)
adversely affect the legality, validity or enforceability of any Transaction
Document, (ii) have or result in a material adverse effect on the results of
operations, assets, business or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole, or (iii) adversely impair the
Company's ability to perform fully on a timely basis its obligations under any
Transaction Document (any of (i), (ii) or (iii), a "Material Adverse Effect").
(b) Authorization; Enforcement. The Company has the requisite corporate
power and authority to enter into and to consummate the transactions
contemplated by the Transaction Documents and otherwise to carry out its
obligations hereunder. The execution and delivery of each Transaction Document
by the Company and the consummation by it of the transactions contemplated
hereunder have been duly authorized by all necessary action on the part of the
Company and no further consent or action is required by the Company, its Board
of Directors or its stockholders. This Agreement has been (or upon delivery will
be) duly executed by the Company and, when delivered in accordance with the
terms hereof, will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.
(c) No Conflicts. The execution, delivery and performance of each
Transaction Document by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not (i) conflict with or
violate any provision of the Company's or any Subsidiary's certificate or
articles of incorporation or bylaws, or (ii) subject to obtaining the Required
Approvals (as defined below), conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any agreement,
credit facility, debt or other instrument (evidencing a Company or Subsidiary
debt or otherwise) or other understanding to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary is
bound or affected, or (iii) result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company or a Subsidiary is subject
(including federal and state securities laws and regulations) and the rules and
regulations of any self-regulatory organization to which the Company or its
securities are subject, or by which any property or asset of the Company or a
Subsidiary is bound or affected; except in the case of each of clauses (ii) and
(iii), such as could not, individually or in the aggregate, have or result in a
Material Adverse Effect.
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(d) Filings, Consents and Approvals. Neither the Company nor any Subsidiary
is required to obtain any consent, waiver, authorization or order of, give any
notice to, or make any filing or registration with, any court or other federal,
state, local or other governmental authority or other Person in connection with
the execution, delivery and performance by the Company of any Transaction
Document, other than (i) the required filing of the Supplement, (ii) applicable
Blue Sky filings, and (iii) in all other cases where the failure to obtain such
consent, waiver, authorization or order, or to give such notice or make such
filing or registration could not have or result in, individually or in the
aggregate, a Material Adverse Effect (collectively, the "Required Approvals").
(e) Issuance of the Securities. The Securities are duly authorized and,
when issued and paid for in accordance with the terms hereof, will be duly and
validly issued, fully paid and nonassessable, free and clear of all liens,
encumbrances and rights of first refusal. The Company has reserved a sufficient
number of duly authorized shares of Common Stock to issue all of the Securities.
At the Closing, the Shares and the shares of Common Stock issuable upon
conversion of the Warrant (such shares, collectively with the Shares, the "Total
Shares") shall have been listed for trading on the Nasdaq National Market (the
"Trading Market").
(f) Registration Statement. The Company's Registration Statement on Form
S-3 (No. 333-81596) (the "Registration Statement") was declared effective by the
Commission on February 14, 2002. The Registration Statement is effective on the
date hereof and the Company has not received notice that the Commission has
issued or intends to issue a stop order with respect to the Registration
Statement or that the Commission otherwise has suspended or withdrawn the
effectiveness of the Registration Statement, either temporarily or permanently,
or intends or has threatened in writing to do so. The Registration Statement
(including the information or documents incorporated by reference therein), as
of the time it was declared effective, and any amendments or supplements
thereto, each as of the time of filing, did not contain any untrue statement of
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading. The issuance of the
Securities to the Purchasers is registered by the Registration Statement.
(g) Listing and Maintenance Requirements. Except as specified in the SEC
Reports, the Company has not, in the two years preceding the date hereof,
received notice from the Trading Market to the effect that the Company is not in
compliance with the listing or maintenance requirements thereof. The Company is,
and has no reason to believe that it will not in the foreseeable future continue
to be, in compliance with the listing and maintenance requirements for continued
trading of the Common Stock on the Trading Market.
(h) Certain Fees. The Purchasers shall have no obligation with respect to
any fees incurred by the Company or any other Person (other than the Purchasers,
if the Purchasers have agreed in writing to pay such fees) or with respect to
any claims made by or on behalf of other Persons for fees of a type contemplated
in this Section that may be due in connection with the transactions contemplated
by the Transaction Documents. The Company shall indemnify and hold harmless the
Purchasers, their employees, officers, directors, agents, and partners, and
their affiliates, from and against all claims, losses, damages, costs (including
the reasonable costs of preparation and reasonable attorney's fees) and expenses
suffered in respect of any such claimed or existing fees incurred by the Company
or any other Person (other than the Purchasers, if the Purchasers have agreed in
writing to pay such fees), as such fees and expenses are incurred.
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(i) Disclosure. The Company confirms that neither it nor any other Person
acting on its behalf has provided any of the Purchasers or their agents or
counsel with any information that constitutes or might constitute material,
nonpublic information (other than information relating to this Agreement, which
information shall be disclosed in the 8-K Filing and the press release pursuant
to Section 5(b) herein). The Company understands and confirms that each of the
Purchasers will rely on the foregoing representations in effecting transactions
in securities of the Company. All disclosure provided to the Purchasers
regarding the Company, its business and the transactions contemplated hereby,
including the Schedules to this Agreement, the Registration Statement and the
Supplement, furnished by or on behalf of the Company are true and correct and do
not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading. No event or
circumstance has occurred or information exists with respect to the Company or
any of its Subsidiaries or its or their business, properties, prospects,
operations or financial conditions, which, under applicable law, rule or
regulation, requires public disclosure or announcement by the Company but which
has not been so publicly announced or disclosed (assuming for this purpose that
the Company's reports filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") are being incorporated into an effective
registration statement filed by the Company under the Securities Act of 1933, as
amended (the "Securities Act")). The Company acknowledges and agrees that no
Purchaser makes or has made any representations or warranties with respect to
the transactions contemplated hereby other than those specifically set forth in
Section 3.
(j) No Violation. The issuance and sale of the Securities hereunder does
not conflict with or violate any rules or regulations of the Trading Market.
(k) SEC Reports; Financial Statements. The Company has filed all reports
required to be filed by it under the Exchange Act, including pursuant to Section
13(a) or 15(d) thereof, for the two years preceding the date hereof (or such
shorter period as the Company was required by law to file such material) (the
foregoing materials being collectively referred to herein as the "SEC Reports"
and, together with this Agreement and the Schedules to this Agreement, the
"Disclosure Materials") on a timely basis or has received a valid extension of
such time of filing and has filed any such SEC Reports prior to the expiration
of any such extension. As of their respective dates, the SEC Reports complied in
all material respects with the requirements of the Securities Act and the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder, and none of the SEC Reports, when filed, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Reports comply in all material
respects with applicable accounting requirements and the rules and regulations
of the Commission with respect thereto as in effect at the time of filing. Such
financial statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods involved
("GAAP"), except as may be otherwise specified in such financial statements or
the notes thereto, and fairly present in all material respects the financial
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position of the Company and its consolidated subsidiaries as of and for the
dates thereof and the results of operations and cash flows for the periods then
ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments. All material agreements to which the Company or any
Subsidiary is a party or to which the property or assets of the Company or any
Subsidiary are subject are included as part of or specifically identified in the
SEC Reports.
(l) Acknowledgment Regarding Purchasers' Purchase of Securities. The
Company acknowledges and agrees that each of the Purchasers is acting solely in
the capacity of an arm's length purchaser with respect to this Agreement and the
transactions contemplated hereby. The Company further acknowledges that no
Purchaser is acting as a financial advisor or fiduciary of the Company (or in
any similar capacity) with respect to this Agreement and the transactions
contemplated hereby and any advice given by any Purchaser or any of their
respective representatives or agents in connection with this Agreement and the
transactions contemplated hereby is merely incidental to the Purchasers'
purchase of the Securities. The Company further represents to each Purchaser
that the Company's decision to enter into this Agreement has been based solely
on the independent evaluation of the Company and its representatives.
3. Representations and Warranties of the Purchasers. Each Purchaser hereby
for itself and for no other Purchaser, represents, warrants and covenants to the
Company as follows:
(a) Organization; Authorization. Each such Purchaser is an entity is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation. Such Purchaser has full right, power,
authority and capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all necessary action to authorize
the execution, delivery and performance of this Agreement. Upon the execution
and delivery of this Agreement and assuming the valid execution hereof by the
Company, this Agreement shall constitute the valid and binding obligation of
such Purchaser enforceable in accordance with its terms. The Company
acknowledges and agrees that no Purchaser makes or has made any representations
or warranties with respect to the transactions contemplated hereby other than
those specifically set forth in this Section 3.
(b) No Short. Each Purchaser represents and warrants that, as of the date
hereof, it does not have a Short Position . A "Short Position" means the
Purchaser holding a position in the Common Stock achieved through the sale of
Common Stock in a transaction marked as a short sale, or a position achieved
though any transactions designed to have the same economic effect (such as the
purchase or sale of puts, calls or other deriviative instrument).
4. Other Agreements of the Parties.
4.1 Subsequent Placements.
(a) Except for the issuance of Common Stock pursuant to Section 1(c), from
the date hereof through April 15, 2003 (including such date) (the "Blockout
Period"), the Company will not, directly or indirectly, offer, sell, grant any
option to purchase, or otherwise dispose of (or announce any offer, sale, grant
or any option to purchase or other disposition of) any of its or the
Subsidiaries' equity or equity equivalent securities, including without
limitation any debt, preferred stock or other instrument or security that is, at
any time during its life and under any circumstances, convertible into or
exchangeable or exercisable for Common Stock or Common Stock Equivalents (any
such offer, sale, grant, disposition or announcement being referred to as a
"Subsequent Placement").
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(b) From the end of the Blockout Period until the one (1) year anniversary
of the Blockout Period, the Company will not, directly or indirectly, effect any
Subsequent Placement unless the Company shall have first complied with this
Section 4.1(b).
(i) The Company shall deliver to each Purchaser a written notice (the
"Offer") of any proposed or intended issuance or sale or exchange
of the securities being offered (the "Offered Securities") in a
Subsequent Placement, which Offer shall (w) identify and describe
the Offered Securities, (x) describe the price and other terms
upon which they are to be issued, sold or exchanged, and the
number or amount of the Offered Securities to be issued, sold or
exchanged, (y) identify the persons or entities (if known) to
which or with which the Offered Securities are to be offered,
issued, sold or exchanged and (z) offer to issue and sell to or
exchange with each Purchaser (A) (1) with respect to the period
from the end of the Blockout Period until the seven month
anniversary of the Blockout Period, a pro rata portion of the
Offered Securities, and (2) with respect to the period from the
seven month anniversary until the one year anniversary of the
Blockout Period, a pro rata portion of an amount equal to forty
percent (40%) of the Offered Securities, in each case based on
such Purchaser's pro rata portion of the aggregate purchase price
paid by the Purchasers for all of the Shares purchased hereunder
(the "Basic Amount"), and (B) with respect to each Purchaser that
elects to purchase its Basic Amount, any additional portion of
the Offered Securities attributable to the Basic Amounts of other
Purchasers as such Purchaser shall indicate it will purchase or
acquire should the other Purchasers subscribe for less than their
Basic Amounts (the "Undersubscription Amount").
(ii) To accept an Offer, in whole or in part, a Purchaser must deliver
a written notice to the Company prior to the end of the five (5)
Trading Day period of the Offer, setting forth the portion of the
Purchaser's Basic Amount that such Purchaser elects to purchase
and, if such Purchaser shall elect to purchase all of its Basic
Amount, the Undersubscription Amount, if any, that such Purchaser
elects to purchase (in either case, the "Notice of Acceptance").
If the Basic Amounts subscribed for by all Purchasers are less
than the total of all of the Basic Amounts, then each Purchaser
who has set forth an Undersubcription Amount in its Notice of
Acceptance shall be entitled to purchase, in addition to the
Basic Amounts subscribed for, the Undersubscription Amount it has
subscribed for; provided, however, that if the Undersubscription
Amounts subscribed for exceed the difference between the total of
all the Basic Amounts and the Basic Amounts subscribed for (the
"Available Undersubscription Amount"), each Purchaser who has
subscribed for any Undersubscription Amount shall be entitled to
purchase on that portion of the Available Undersubscription
Amount as the Basic Amount of such Purchaser bears to the total
Basic Amounts of all Purchasers that have subscribed for
Undersubscription Amounts, subject to rounding by the Board of
Directors to the extent its deems reasonably necessary.
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(iii) The Company shall have fifteen (15) days from the expiration of
the period set forth in Section 4.1(b)(ii) above to issue, sell
or exchange all or any part of such Offered Securities as to
which a Notice of Acceptance has not been given by the Purchasers
(the "Refused Securities"), but only to the offerees described in
the Offer (if so described therein) and only upon terms and
conditions (including, without limitation, unit prices and
interest rates) that are not more favorable to the acquiring
person or persons or less favorable to the Company than those set
forth in the Offer.
(iv) In the event the Company shall propose to sell less than all the
Refused Securities (any such sale to be in the manner and on the
terms specified in Section 4.1(b)(iii) above), then each
Purchaser may, at its sole option and in its sole discretion,
reduce the number or amount of the Offered Securities specified
in its Notice of Acceptance to an amount that shall be not less
than the number or amount of the Offered Securities that the
Purchaser elected to purchase pursuant to Section 4.1(b)(ii)
above multiplied by a fraction, (i) the numerator of which shall
be the number or amount of Offered Securities the Company
actually proposes to issue, sell or exchange (including Offered
Securities to be issued or sold to Purchasers pursuant to Section
4.1(b)(ii) above prior to such reduction) and (ii) the
denominator of which shall be the original amount of the Offered
Securities. In the event that any Purchaser so elects to reduce
the number or amount of Offered Securities specified in its
Notice of Acceptance, the Company may not issue, sell or exchange
more than the reduced number or amount of the Offered Securities
unless and until such securities have again been offered to the
Purchasers in accordance with Section 4.1(b)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or less
than all of the Refused Securities, the Purchasers shall acquire
from the Company, and the Company shall issue to the Purchasers,
the number or amount of Offered Securities specified in the
Notices of Acceptance, as reduced pursuant to Section 4.1(b)(iv)
above if the Purchasers have so elected, upon the terms and
conditions specified in the Offer. The purchase by the Purchasers
of any Offered Securities is subject in all cases to the
preparation, execution and delivery by the Company and the
Purchasers of a purchase agreement relating to such Offered
Securities reasonably satisfactory in form and substance to the
Purchasers, the Company and their respective counsel.
(vi) Any Offered Securities not acquired by the Purchasers or other
persons in accordance with Section 4.1(b)(iii) above may not be
issued, sold or exchanged until they are again offered to the
Purchasers under the procedures specified in this Agreement.
(c) Notwithstanding anything herein to the contrary, the restrictions
contained in paragraph (a) and (b) of this Section shall not apply to (i) the
granting of stock options to employees, officers and directors of the Company
pursuant to any stock option plan duly adopted by the Company or to the issuance
of Common Stock upon exercise of such options, (ii) the issuance of Common Stock
to officers or employees pursuant to any employee stock purchase plan or similar
plan designed to provide equity compensation to employees of the Company, (iii)
the issuance of Common Stock to providers of goods or services to the Company in
compensation for such goods or services, or (iv) licensing transactions and
transactions that are primarily strategic transactions.
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4.2 Disclosure of Material Non-Public Information. Each of the parties
confirms that the Company has not and shall not, and the Company shall cause
each of its Affiliates (as defined in Rule 405 under the Securities Act) and
other Persons acting on its behalf not to, divulge to any Purchaser any
information that it believes to be material non-public information unless such
Purchaser has agreed in writing to receive such information prior to such
divulgence. Each Purchaser has made its own independent examination,
investigation, analysis and evaluation of the Company, including but not limited
to an evaluation of the value of the Securities and has not relied upon any
non-public information relating to the Company provided to the Purchasers by the
Company or any of its Affiliates or other persons acting on its behalf.
4.3 Reservation and Listing of Securities. The Company shall maintain a
reserve from its duly authorized shares of Common Stock for issuance pursuant to
the Transaction Documents in such amount as may be required to fulfill its
obligations in full under this Agreement and upon exercise of the Warrant. In
the event that at any time the then authorized shares of Common Stock are
insufficient for the Company to satisfy its obligations in full under this
Agreement and the Warrant, the Company shall promptly take such actions as may
be required to increase the number of authorized shares. The Company shall have
filed an additional shares listing application with the Nasdaq National Market
to cover the Securities within 1 Trading Day of the Closing Date. The Company
shall take such steps as may be required to cause and maintain the listing of
the Total Shares on the Trading Market and such other exchange, market or
quotation facility on which the Common Stock is traded.
4.4 Indemnification
(a) The Company will indemnify and hold harmless each Purchaser and any of
its affiliates or any officer, director, partner, controlling person, employee
or agent of a Purchaser or any of its affiliates (a "Related Person") for its
reasonable legal and other expenses (including the costs of any investigation,
preparation and travel) and for any Losses incurred in connection with any
action, claim, suit, investigation or proceeding (including, without limitation,
an investigation or partial proceeding, such as a disposition), whether
commenced or threatened (each, a "Proceeding"), insofar as such Losses arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or the Supplement, or any
amendment or supplement thereto, and all other documents filed as a part
thereof, as amended at the time of effectiveness of the Registration Statement,
including any information deemed to be a part thereof as of the time of
effectiveness pursuant to paragraph (b) of Rule 430A, or pursuant to Rule 434,
under the Securities Act, or arise out of or are based upon the omission or
alleged omission to state in any of them a material fact required to be stated
therein or necessary to make the statements in any of them, in light of the
circumstances under which they were made, not misleading, as such expenses or
Losses are incurred. In addition, the Company shall indemnify and hold harmless
each Purchaser and Related Person from and against any and all Losses, as
incurred, arising out of or relating to any breach by the Company of any of the
representations, warranties or covenants made by the Company in this Agreement
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or any other Transaction Document, or any allegation by a third party that, if
true, would constitute such a breach. The conduct of any Proceeding for which
indemnification is available under this paragraph shall be governed by Section
4.4(b). The indemnification obligations of the Company under this paragraph
shall be in addition to any liability that the Company may otherwise have and
shall be binding upon and inure to the benefit of any successors, assigns, heirs
and personal representatives of the Purchasers and any such Related Persons. The
Company also agrees that neither the Purchasers nor any Related Persons shall
have any liability to the Company or any Person asserting claims on behalf of or
in right of the Company in connection with or as a result of the transactions
contemplated by the Transaction Documents, except to the extent that any losses,
claims, damages, liabilities or expenses incurred by the Company result from the
gross negligence or willful misconduct of the applicable Purchaser or Related
Person in connection with such transactions. If the Company breaches its
obligations under any Transaction Document, then, in addition to any other
liabilities the Company may have under the Transaction Documents or applicable
law, the Company shall pay or reimburse the Purchasers on demand for all costs
of collection and enforcement (including reasonable attorneys fees and
expenses). Without limiting the generality of the foregoing, the Company
specifically agrees to reimburse the Purchasers on demand for all costs of
enforcing the indemnification obligations in this paragraph. For the purposes of
this Section 4.4, "Losses" shall mean any and all losses, claims, damages,
liabilities, settlement costs and expenses, including without limitation costs
of preparation of legal action and reasonable attorneys' fees.
(b) Conduct of Indemnification Proceedings. If any Proceeding shall be
brought or asserted against any Person entitled to indemnity hereunder (an
"Indemnified Party"), such Indemnified Party shall promptly notify the Person
from whom indemnity is sought (the "Indemnifying Party") in writing, and the
Indemnifying Party shall have the right to assume the defense thereof, including
the employment of counsel reasonably satisfactory to the Indemnified Party and
the payment of all fees and expenses incurred in connection with defense
thereof; provided, that the failure of any Indemnified Party to give such notice
shall not relieve the Indemnifying Party of its obligations or liabilities
pursuant to the Transaction Documents, except (and only) to the extent that it
shall be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal or further review) that such failure
shall have proximately and materially adversely prejudiced the Indemnifying
Party.
An Indemnified Party shall have the right to employ separate counsel in any
such Proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party or
Parties unless: (i) the Indemnifying Party has agreed in writing to pay such
fees and expenses; or (ii) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or (iii) the
named parties to any such Proceeding (including any impleaded parties) include
both such Indemnified Party and the Indemnifying Party, and such Indemnified
Party shall have been advised by counsel that a conflict of interest is likely
to exist if the same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and such counsel shall be at the expense of
the Indemnifying Party). The Indemnifying Party shall not be liable for any
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settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party from
all liability on claims that are the subject matter of such Proceeding.
All fees and expenses of the Indemnified Party (including reasonable fees
and expenses to the extent incurred in connection with investigating or
preparing to defend such Proceeding in a manner not inconsistent with this
Section) shall be paid to the Indemnified Party, as incurred, within ten Trading
Days of written notice thereof to the Indemnifying Party (regardless of whether
it is ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder; provided, that the Indemnifying Party may require
such Indemnified Party to undertake to reimburse all such fees and expenses to
the extent it is finally judicially determined that such Indemnified Party is
not entitled to indemnification hereunder).
5. Miscellaneous
(a) Fees and Expenses. At the Closing, the Company shall pay to Mainfield
Enterprises, Inc. an aggregate of $15,000 for their legal fees and expenses
incurred in connection with its due diligence and the preparation and
negotiation of this Agreement. In lieu of the foregoing payment, Mainfield
Enterprises, Inc. may retain such amount at the Closing or require the Company
to pay such amount directly to Purchaser Counsel. Except as expressly set forth
in this Agreement to the contrary, each party shall pay the fees and expenses of
its advisers, counsel, accountants and other experts, if any, and all other
expenses incurred by such party incident to the negotiation, preparation,
execution, delivery and performance of this Agreement. The Company shall pay all
transfer agent fees, stamp taxes and other taxes and duties levied in connection
with the sale and issuance of their applicable Securities.
(b) Securities Laws Disclosure; Publicity. The Company shall, on or before
9 a.m., Eastern Standard time, on April 9, 2003, issue a press release
reasonably acceptable to the Purchasers disclosing all material terms of the
transactions contemplated hereby and file a Current Report on Form 8-K with the
Commission (the "8-K Filing") describing the terms of the transactions
contemplated by this Agreement and including as exhibits to such 8-K Filing this
Agreement, in the form required by the Exchange Act. Thereafter, the Company
shall timely file any filings and notices required by the Commission or
applicable law with respect to the transactions contemplated hereby and provide
copies thereof to the Purchasers promptly after filing. Neither the Company nor
the Purchasers shall issue any press release or make any other public
announcement relating to this Agreement unless (i) the content thereof is
mutually agreed to by the Company and the Purchasers, or (ii) such party is
advised by its counsel that such press release or public announcement is
required by law; except that no press release issued to disclose the issuance
and sale of the Securities to the Purchasers will refer to the Purchasers by
name.
(c) Entire Agreement; Amendments. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral or written, with
respect to such matters, which the parties acknowledge have been merged into
this Agreement and its exhibits and schedules. This Agreement may not be
modified or amended except pursuant to an instrument in writing signed by the
Company and Purchasers then holding two-thirds of the Shares purchased
hereunder. The waiver by either party hereto of any right hereunder or the
failure to perform or of a breach by the other party shall not be deemed a
waiver of any other right hereunder or of any other breach or failure by said
other party whether of a similar nature or otherwise.
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(d) Notices. Any and all notices or other communications or deliveries required
or permitted to be provided hereunder shall be in writing and shall be deemed
given and effective on the earliest of (i) the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number
specified in this Section prior to 6:30 p.m. (New York City time) on a Trading
Day, (ii) the Trading Day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified in
this Agreement later than 6:30 p.m. (New York City time) on any date and earlier
than 11:59 p.m. (New York City time) on such date, (iii) the Trading Day
following the date of mailing, if sent by nationally recognized overnight
courier service, or (iv) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications shall be
as follows:
If to the Company: Geron Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
With a copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
If to the Purchasers:
To the address set forth under such
Purchaser's name on the signature
pages attached hereto.
or such other address as may be designated in writing hereafter, in the
same manner, by such Person.
(e) Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York, without regard to the principles of conflicts of law thereof. Each party
agrees that all legal proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Agreement (whether brought
against a party hereto or its respective affiliates, directors, officers,
shareholders, employees or agents) shall be commenced exclusively in the state
and federal courts sitting in the City of New York, Borough of Manhattan. Each
party hereto hereby irrevocably submits to the exclusive jurisdiction of the
state and federal courts sitting in the City of New York, Borough of Manhattan
for the adjudication of any dispute hereunder or in connection herewith or with
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any transaction contemplated hereby or discussed herein (including with respect
to the enforcement of any of this Agreement), and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such suit, action
or proceeding is improper. Each party hereto hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its reasonable attorneys fees and other reasonable costs and expenses incurred
with the investigation, preparation and prosecution of such action or
proceeding.
(f) Execution. This Agreement may be executed in two or more counterparts,
all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(g) Independent Nature of Purchasers. The obligations of each Purchaser
under this Agreement are several and not joint with the obligations of any other
Purchaser, and no Purchaser shall be responsible in any way for the performance
of the obligations of any other Purchaser under this Agreement. The decision of
each Purchaser to purchase Securities pursuant to this Agreement has been made
by such Purchaser independently of any other Purchaser and independently of any
information, materials, statements or opinions as to the business, affairs,
operations, assets, properties, liabilities, results of operations, condition
(financial or otherwise) or prospects of the Company or of the Subsidiary which
may have been made or given by any other Purchaser or by any agent or employee
of any other Purchaser, and no Purchaser or any of its agents or employees shall
have any liability to any other Purchaser (or any other person) relating to or
arising from any such information, materials, statements or opinions. Nothing
contained herein, and no action taken by any Purchaser pursuant hereto, shall be
deemed to constitute the Purchasers as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Purchasers
are in any way acting in concert or as a group with respect to such obligations
or the transactions contemplated by this Agreement. Each Purchaser shall be
entitled to independently protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall not be
necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose.
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(h) Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and permitted assigns. The
Company may not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Purchaser. The Purchaser may assign its
rights under this Agreement and the Warrant to any Person.
(i) Adjustments in Share Numbers and Prices. In the event of any stock
split, subdivision, dividend or distribution payable in shares of Common Stock
(or other securities or rights convertible into, or entitling the holder thereof
to receive directly or indirectly shares of Common Stock), combination or other
similar recapitalization or event occurring after the date hereof, each
reference in the Transaction Documents to a number of shares or a price per
share shall be amended to appropriately account for such event.
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(j) Replacement of Securities. If any certificate or instrument evidencing
any Securities is mutilated, lost, stolen or destroyed, the Company shall issue
or cause to be issued in exchange and substitution for and upon cancellation
thereof, or in lieu of and substitution therefor, a new certificate or
instrument, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and customary and reasonable
indemnity, if requested. The applicants for a new certificate or instrument
under such circumstances shall also pay any reasonable third-party costs
associated with the issuance of such replacement Securities.
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SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Common Stock
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
GERON CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
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SIGNATURE PAGE OF PURCHASERS FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Common Stock
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
MAINFIELD ENTERPRISES, INC.
By: /s/ Avi Vigder
-----------------------------------------
Name: Avi Vigder
Title: Authorized Signatory
Purchase Price: $10,120,000
Number of Shares to be acquired: 2,200,000
Underlying shares of Common Stock subject to Warrant: 300,000
Address for Notice:
Mainfield Enterprise, Inc.
c/o Eldad Gal
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: Proskauer Rose LLP
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
THE RIVERVIEW GROUP, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Operating Officer
Purchase Price: $10,120,000
Number of Shares to be acquired: 2,200,000
Underlying shares of Common Stock subject to Warrant: 300,000
Address for Notice:
The Riverview Group, LLC
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: ▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: (▇▇▇) ▇▇▇-▇▇▇▇
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