EXHIBIT 4.1
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into
as of November 22, 2006 (the "Effective Date"), by and between GERON
CORPORATION, a Delaware corporation having its principal place of business at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Geron"), and MPI
Research, Inc., a Michigan corporation having its principal place of business at
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("MPI").
▇. ▇▇▇▇▇ and MPI are the parties to that certain Master Agreement dated
as of December 12, 2003 (the "Master Agreement"), and related Services
ServicesAgreements ("Services Agreement") under which Geron and MPI
have agreed that MPI will perform certain services on behalf of Geron
on the terms set forth therein.
B. Pursuant to Amendment No. 2 to the Agreement, dated November 22, 2006
("Amendment No. 2"), Geron may pay for the price of such services 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 price specified in Amendment No. 2, Geron will
issue and deliver certificates for 114,155 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 five (5) business days after the Effective Date hereof (the
"Closing Date"). At the Closing, Geron shall deliver to MPI one
or more certificates representing all of the Shares, which Shares
shall be issued in the name of MPI or its designee and in such
denominations as MPI shall specify.
2.2 Geron's obligations to issue and deliver the stock certificate(s)
representing the Shares to MPI at the Closing shall be subject to
the following conditions, which may be waived by Geron:
2.2.1 the covenants and obligations that MPI 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 MPI herein shall
be true and correct in all material respects as of the
Closing Date.
2.3 MPI'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
MPI:
2.3.1 the covenants and obligations that Geron is required to
perform or to comply with pursuant to this Agreement, at or
prior to the Closing, must have been duly performed and
complied with in all material respects;
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2.3.2 Geron shall have available under its Certificate of
Incorporation sufficient authorized shares of Common Stock
to issue the Shares to MPI; 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. MPI 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 MPI may be required to
hold such Shares for an indefinite period of time. Each stock
certificate representing Shares shall bear the following legends:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). ANY TRANSFER
OF SUCH SECURITIES SHALL BE INVALID UNLESS A REGISTRATION
STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH TRANSFER OR, IN
THE OPINION OF COUNSEL REASONABLY ACCEPTABLE TO GERON, SUCH
REGISTRATION IS UNNECESSARY FOR SUCH TRANSFER TO COMPLY WITH THE
ACT. THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE TERMS
OF THE COMMON STOCK PURCHASE AGREEMENT, DATED AS OF [X]. A COPY
OF THE AGREEMENT CAN BE OBTAINED FROM THE SECRETARY OF GERON."
3.2 Limits on Sales. MPI agrees that if it decides to resell some or
all of the Shares, it will do so only through orderly sales
executed through a top-tier brokerage house, and 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. MPI further agrees that it will not
engage in short selling with respect to the Stock.
4. REGISTRATION RIGHTS
4.1 Geron agrees to make commercially reasonable efforts to file with
the Securities and Exchange Commission (the "Commission") within
ten (10) 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 MPI.
Geron agrees to diligently pursue making the Registration
Statement effective. Geron will notify MPI 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
MPI receives an opinion of counsel from Geron, which counsel
shall be reasonably acceptable to MPI, 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 MPI.
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4.3 Geron, at its expense, shall furnish to MPI 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 MPI may
reasonably request, in order to facilitate the public sale or
other disposition of all or any of the Shares by MPI, provided,
however, that the obligation of Geron to deliver copies of
prospectuses or preliminary prospectuses to MPI shall be subject
to the receipt by Geron of reasonable assurances from MPI that
MPI 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. MPI shall bear the cost of fees and expenses of MPI's
counsel.
4.5 Geron will advise MPI 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 MPI the benefits of Rule 144
(or its successor rule) and any other rule or regulation of the
Commission that may at the time permit MPI 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 MPI 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 MPI 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 MPI to consent to be
named as an underwriter in any Registration Statement.
5. INDEMNIFICATION.
5.1 Geron agrees to indemnify and hold harmless MPI (and each person,
if any, who controls MPI within the meaning of Section 15 of the
Act, and each officer and director of MPI) 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
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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 MPI or such other person expressly for use
in the preparation thereof, (B) the failure of MPI 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
MPI prior to the pertinent sale or sales by MPI. 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 MPI.
5.2 MPI 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 MPI 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 MPI specifically for use in
preparation of the Registration Statement; provided, however,
that MPI 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 MPI 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 MPI 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
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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.
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 MPI 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 Geron, its
officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the
performance of all obligations of Geron 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 MPI.
MPI hereby represents, warrants, acknowledges and agrees that:
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7.1 Investment. MPI is acquiring the Shares for MPI's own account,
and not directly or indirectly for the account of any other
person. MPI is acquiring the Shares for investment and not with a
view to distribution or resale thereof, except in compliance with
the Act and any applicable state law regulating securities.
7.2 Access to Information. MPI has consulted with its own attorney,
accountant, or investment advisor as MPI has deemed advisable
with respect to the investment and has determined its suitability
for MPI. MPI 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. MPI has
had access to such financial and other information as is
necessary in order for MPI 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 MPI has had access. MPI 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. MPI 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. MPI 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 MPI's risk capital
means and is not so great in relation to MPI's total financial
resources as would jeopardize the personal financial needs of MPI
in the event such investment were lost in whole or in part.
7.5 Unregistered Securities. MPI acknowledges that:
7.5.1 MPI 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 MPI hereby certifies that it is an "Accredited Investor" as
that term is defined in Rule 501 under the Act.
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8. TAX ADVICE. MPI acknowledges that MPI 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. MPI
assumes full responsibility for all such consequences and for the
preparation and filing of all tax returns and elections which may or
must be filed in connection with the Shares.
9. NOTICES. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been duly
given on the date of delivery if delivered personally or by facsimile,
or one day, not including Saturdays, Sundays, or national holidays,
after sending if sent by national overnight delivery service, or five
days, not including Saturdays, Sundays, or national holidays, after
mailing if mailed by first class United States mail, certified or
registered with return receipt requested, postage prepaid, and
addressed as follows:
To Geron at: Geron Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To MPI at: MPI Research, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile: 269.668.4151
10. BINDING EFFECT. This Agreement shall be binding upon the heirs, legal
representatives and successors of Geron and of MPI; provided, however,
that MPI 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.
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16. ENTIRE AGREEMENT. This Agreement and the Master Agreement, including
Amendment No. 2 thereto, constitute the entire agreement of the
parties pertaining to the Shares and supersede all prior and
contemporaneous agreements, representations, and understandings of the
parties with respect thereto.
IN WITNESS WHEREOF, the parties hereto have executed this Common Stock
Purchase Agreement as of the date first above written.
Geron Corporation
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
MPI Research, Inc.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer, CAO
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