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EXHIBIT 99.1 | |
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Stipulation and Agreement of Settlement, dated September 2, 2022 | |
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KAPLAN FOX & KILSHEIMER LLP Laurence D. King (SBN 206423) Blair E. Reed (SBN 316791) Oakland, CA 94612 Telephone: (415) 772-4700 lking@kaplanfox.com breed@kaplanfox.com
KAPLAN FOX & KILSHEIMER LLP Robert N. Kaplan (admitted pro hac vice) Jeffrey P. Campisi (admitted pro hac vice) Jason A. Uris (admitted pro hac vice) 850 Third Avenue, 14th Floor New York, NY 10022 Telephone: (212) 687-1980 Facsimile: (212) 687-7714 rkaplan@kaplanfox.com jcampisi@kaplanfox.com juris@kaplanfox.com
Class Counsel for Lead Plaintiffs and Class Representatives Julia Junge and Richard Junge and the Class
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
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JULIA JUNGE and RICHARD JUNGE, on behalf of themselves and a class of similarly situated investors,
Plaintiffs,
v.
GERON CORPORATION and JOHN A. SCARLETT,
Defendants.
| Case No. 3:20-cv-00547-WHA (DMR)
Class Action
(Consolidated with Case No. 3:20-cv-01163-WHA)
STIPULATION AND AGREEMENT OF SETTLEMENT
Dept: Courtroom 12, 19th Floor Judge: Hon. William H. Alsup
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No. of Mo., Mo. & MPA iso Mo. to Consolidate.; Appt. Lead Pltf & Approve Lead Counsel |
This Stipulation and Agreement of Settlement, dated as of September 2, 2022 (the “Stipulation”), is entered into between (a) Julia Junge and Richard Junge (“Lead Plaintiffs” or “Class Representatives”), on behalf of themselves and the plaintiff class certified by the Court (the “Class,” as defined in ¶1(h) below); and (b) defendants Geron Corporation (“Geron”) and Dr. John A. Scarlett (“Dr. Scarlett,” and together with Geron, “Defendants”), and embodies the terms and conditions of the settlement of the above-captioned action (the “Action”). Subject to the approval of the Court and the terms and conditions expressly provided herein, this Stipulation is intended to fully, finally and forever compromise, settle, release, resolve, and dismiss with prejudice the Action and all Released Plaintiffs’ Claims (as defined below in ¶1(qq) against Defendants’ Released Parties (as defined below in ¶1(r).
WHEREAS:
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NOW THEREFORE, it is hereby STIPULATED AND AGREED, by and among Lead Plaintiffs (individually and on behalf of all other members of the Class) and Defendants, by and through their respective undersigned attorneys and subject to the approval of the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, that, in consideration of the benefits flowing to the Parties from the Settlement, all Released Plaintiffs’ Claims as against the Defendants’ Released Parties and all Released Defendants’ Claims as against the Plaintiffs’ Released Parties shall be settled and released, upon and subject to the terms and conditions set forth below.
DEFINITIONS
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A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
For the avoidance of doubt, Unknown Claims are limited to those that (a) Lead Plaintiffs or any other Class Member or Defendants (i) asserted in the Amended Complaint or Action or (ii) arise out of or relate to the allegations, transactions, facts, events, matters, occurrences, representations, or omissions asserted in the Amended Complaint or Action and concern claims or causes of action of or by Lead Plaintiffs or any other Class Member who purchased or otherwise acquired Geron common stock during the Class Period and were allegedly damaged thereby. Lead Plaintiffs and any other Class Member, and Defendants may hereafter discover
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facts in addition to or different from those that he, she, it or their counsel now knows or believes to be true with respect to the subject matter of Released Plaintiffs’ Claims and Released Defendants’ Claims, but they stipulate and agree that, upon the Effective Date of the Settlement, they shall expressly waive and by operation of the Judgment shall have, fully, finally, and forever settled and released any and all Unknown Claims. The Parties acknowledge, and each of the Class Members and Defendants’ Related Parties shall be deemed by operation of law to have acknowledged, that the foregoing waiver was separately bargained for and is a key element of the Settlement.
PRELIMINARY APPROVAL OF SETLEMENT
RELEASE OF CLAIMS
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THE SETTLEMENT CONSIDERATION
In consideration of the settlement of the Released Plaintiffs’ Claims against Defendants and Defendants’ Released Parties specified in ¶¶4-5 above, Defendants and/or their insurance carriers shall provide or cause to be provided to the Class the total Settlement Amount of consideration of Twenty-Four Million Dollars ($24,000,000.00) in value comprising Seventeen Million Dollars ($17,000,000.00) in cash, and Seven Million Dollars ($7,000,000.00) in Settlement Stock and/or cash at Geron’s option in the form and manner described below:
Geron, on behalf of Defendants, shall pay and/or cause its insurance carriers to pay, the $17 million cash component of the Settlement Amount into the Escrow Account no later than twenty (20) business days after both of the following occur: (a) the Court enters an order
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preliminarily approving the Settlement in substantially the form attached hereto as Exhibit A; and (b) Lead Counsel provides to Defendants’ Counsel all required banking and wire transfer information necessary to effectuate a transfer of funds to the Escrow Account, and a current W-9.
Within 3 business days of the Court entering the Judgment, Geron shall transfer the Settlement Stock and/or cash in lieu of the Settlement Stock into the Settlement Fund. At all times prior to transfer of the Settlement Stock into the Settlement Fund, Geron shall have the option in its full and complete discretion to pay the aggregate value of the Settlement Stock, or a portion thereof, in cash. The number of shares of Geron Common Stock that will constitute the Settlement Stock shall be determined and transferred as follows:
(a) The number of shares that will make up the Settlement Stock will be based on the volume-weighted average closing price of Geron Common Stock on the Nasdaq (“VWAP”) for the 10 trading days immediately preceding the day before the Settlement Stock is transferred into the Settlement Fund (the “Pricing Period”), with the resulting VWAP appropriately adjusted for any stock splits, stock dividends or distributions, recapitalizations, and similar events with respect to Geron Common Stock that may occur during the Pricing Period so the value of any Geron Common Stock transferred to the Settlement Fund is equal to $7 million;
(b) The Settlement Stock shall be sold as soon as reasonably practicable following its deposit in the Settlement Fund with the cash proceeds thereof being distributed to Class Members or used to pay any Court awarded attorneys’ fee and/or Litigation Expenses;
(c) Any sales of the Settlement Stock shall be limited to 10% of Geron’s daily trading volume, which volume shall be determined by the average trading volume over the previous 10 trading days, and any costs and expenses in connection with sale by the Escrow Agent shall be charged to the Settlement Fund;
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(d) The Settlement Stock shall be duly and validly issued, uncertificated, fully paid, non-assessable and free from all liens and encumbrances, and the Parties stipulate the Settlement Stock has been issued under an exemption from registration provided by Section 3(a)(10) of the Securities Act of 1933;
(e) Geron shall issue the Settlement Stock without any restrictive legend, and the Settlement Stock shall be freely and publicly tradeable without the need to obtain any opinions of counsel or permission of Geron that the stock is unrestricted.
(f) all costs and expenses in connection with the issuance and transfer of the stock to the Escrow Agent are borne by Geron.
USE OF SETTLEMENT FUND
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ATTORNEYS’ FEES AND LITIGATION EXPENSES
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NOTICE AND SETTLEMENT ADMINISTRATION
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TERMS OF THE JUDGMENT
CONDITIONS OF SETTLEMENT AND EFFECT OF
DISAPPROVAL, CANCELLATION OR TERMINATION
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NO ADMISSION OF GUILT
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MISCELLANEOUS PROVISIONS
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If to Lead Plaintiffs or Lead Counsel:
Jeffrey P. Campisi
Kaplan Fox & Kilsheimer LLP
850 Third Avenue, 14th Floor
New York, NY 10022
Telephone: (212) 687-1980
Facsimile: (212) 687-7714
jcampisi@kaplanfox.com
Laurence D. King
Kaplan Fox & Kilsheimer LLP
1999 Harrison Street, Suite 1560
Oakland, CA 94612
Telephone: (415) 772-4700
Facsimile: (415) 772-4707
lking@kaplanfox.com
If to Defendants:
Jeffrey D. Lombard
Cooley LLP
1700 Seventh Avenue, Suite 1900
Seattle, WA 98101
Telephone: (206) 452-8700
Facsimile: (206) 452-8800
jlombard@cooley.com
Ryan E. Blair
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Cooley LLP
4401 Eastgate Mall
San Diego, CA 92121
Telephone: (858) 550-6000
Facsimile: (858) 550-6420
rblair@cooley.com
IN WITNESS WHEREOF, the Parties hereto have caused this Stipulation to be executed, by their duly authorized attorneys, as of September 2, 2022.
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| KAPLAN FOX & KILSHEIMER LLP
By: /s/ Jeff Campisi
Laurence D. King (SBN 206423) Kathleen A. Herkenhoff (SBN 168562) Blair E. Reed (SBN 316791) 1999 Harrison Street, Suite 1560 Oakland, CA 94612 Telephone: (415) 772-4700 Facsimile: (415) 772-4707 lking@kaplanfox.com kherkenhoff@kaplanfox.com breed@kaplanfox.com
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| KAPLAN FOX & KILSHEIMER LLP Robert N. Kaplan (admitted pro hac vice) Jeffrey P. Campisi (admitted pro hac vice) Jason A. Uris (admitted pro hac vice) 850 Third Avenue, 14th Floor New York, NY 10022 Telephone: (212) 687-1980 Facsimile: (212) 687-7714 rkaplan@kaplanfox.com jcampisi@kaplanfox.com juris@kaplanfox.com
Class Counsel for Lead Plaintiffs and Class Representatives Julia Junge and Richard Junge and the Class
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| COOLEY LLP
By: /s/ Ryan Blair Ryan E. Blair
Ryan E. Blair (SBN 246724) 4401 Eastgate Mall San Diego, CA 92121 Telephone: (858) 550-6000 Facsimile: (858) 550-6420 rblair@cooley.com
COOLEY LLP Jeffrey D. Lombard 1700 Seventh Avenue, Suite 1900 Seattle, WA 98101 Telephone: (206) 452-8796 jlombard@cooley.com
COOLEY LLP John C. Dwyer (SBN 136533) Brett H. De Jarnette (SBN 292919) 3175 Hanover Street Palo Alto, CA 94304 Telephone: (650) 843-5000 Facsimile: (650) 849-7400 dwyerjc@cooley.com bdejarnette@cooley.com
Counsel for Defendants Geron Corporation and John A. Scarlett
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Appendix 1
List of Exclusions
1. Kimberly A Bourque |
2. Calvin Hackley |
3. Thomas J Pizzuto and Thomas J. Pizzuto IRA and Thomas J. Pizzuto Roth IRA |
4. Susan Rothstein Schwimmer |
5. Wesley Le |
6. Arpiben Shah |
7. Arthur Groome |
8. Richard H Ronan |
9. Sam Karhbet |
10. Robert W Hutchinson |
11. Marco Tiberii |
12. Danny Charbonneau |
13. Igor Maksymyuk |
14. Sudipto Mondal |
15. Tammy Davis |
16. Ansamma Saju Paul |
17. Bruce A Sanders (Retail Acct) |
18. Matthew F Sanders (Roth IRA) |
19. Donna L Sanders |
20. Joseph M Moscoguiri |
21. Darryl J Wolff |
22. Deborah E Wolff |
23. Amanda K Wolff |
24. Ashley Hettinger |
25. Jacob Cunningham |
26. Franklin Hare |
27. Edward Bonde |
28. Bob Flick |
29. Javad Vahidi |
30. Howard B Brown |
31. Andrew Shatley |
32. Hanford Quock |
33. Dale Newell |
34. Timothy A Fram |
35. Gregory D Isaac |
36. Iris L Sun |
37. David A Griffin |
38. Charles D Carter |
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39. Sandra L Hoffman |
40. Youngwon Hahn |
41. Jason Baker |
42. Tyler Coleman |
43. Shahram Safavi |
44. Keith Shuster |
45. Alex Amor |
46. Demetrios Liaros |
47. Robert Stupar |
48. William Stupar |
49. William Charles Waldrop |
50. Janet Lavonne Little |
51. Sanders Saint Jour |
52. Carol Bratton |
53. Steven A Demarest |
54. Sherri L Despiegler |
55. Daniel Ruihan Qi |
56. Matt Finn |
57. Preston Jones |
58. Alexander Dietl |
59. Tony Russo |
60. Christopher Szoly |
61. Maurice L Bakke and Maurice L. Bakke Single Account and Maurice L. Bakke and Mary Bakke JTWROS |
62. Mary Bakke |
63. Monty Milne |
64. Duan Zhang |
65. Alvin Laohapant |
66. Michael Hardwick (deceased) |
67. Patricia W Hardwick |
68. Phillip Tougas |
69. Spencer Wu |
70. Varghese Xavier |
71. Alan Lauver 72. Matthew Stratton |
73. Piotr Niedzwiedz 74. Ron Brockway 75. Patricia O’Grady |
76. Gary Cornell Woolridge |
77. Charles B VonCanon III |
78. McKayla Pate |
79. Chad Allie |
80. George Brodbeck |
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81. Carl J Frank |
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