EXHIBIT 4.1
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (the "Agreement") is made and
entered into as of March 19, 2008 (the "Effective Date") by and between Geron
Corporation, a Delaware corporation having its principal place of business at
230 Constitution Drive, Menlo Park, California 94025 (the "Company"), and David
D. Bohannon Organization, a California corporation having an office at 60
Hillsdale Mall, San Mateo, CA 94403-3497 (the "Acquirer").
A. The Company has agreed to issue, and the Acquirer has agreed to
accept, shares of the Company's common stock, par value $.001 per
share (the "Common Stock") to Acquirer in payment of the Company's
base rent obligations for the period from August 1, 2008 through July
31, 2012 under a lease dated January 20, 1993 to the premises at 200
Constitution Drive, Menlo Park, California, as amended and extended,
and a lease dated March 25, 1996 to the premises at 230 Constitution
Drive, Menlo Park, California, as amended and extended (collectively,
the "Leases").
B. The Acquirer and the Company desire to specify the terms and
conditions of the Company's issuance of such common stock.
THE PARTIES AGREE AS FOLLOWS:
1. ISSUANCE OF SHARES; PURCHASE PRICE. The Acquirer hereby acquires and the
Company hereby issues to Acquirer 742,158 shares (the "Shares") of Common
Stock in consideration of the premises conveyed pursuant to the Leases.
Upon issuance and delivery of the certificate(s) for the Shares, all
Shares shall be duly authorized and validly issued and represent fully
paid shares of the Company's Common Stock.
2. CLOSING; DELIVERY
2.1 The consummation of the transaction contemplated by this Agreement (a
"Closing") shall be held at such time and place as is mutually agreed
upon between the parties, but in any event no later than five (5)
business days after the Effective Date of this Agreement (the "Closing
Date"). At the Closing, the Company shall deliver to the Acquirer one
or more certificates representing all of the Shares, which Shares
shall be issued in the name of the Acquirer or its designee and in
such denominations as the Acquirer shall specify.
2.2 The Company's obligations to issue and deliver the stock
certificate(s) representing the Shares to the Acquirer at the Closing
shall be subject to the following conditions, which may be waived by
the Company:
2.2.1 the covenants and obligations that the Acquirer is
required to perform or to comply with pursuant to
this Agreement, at or prior to the Closing, must have
been duly performed and complied with in all material
respects; and
2.2.2 the representations and warranties made by the
Acquirer herein shall be true and correct in all
material respects as of the Closing Date.
2.3 The Acquirer's obligation to accept delivery of the stock
certificate(s) representing the Shares at the Closing shall be subject
to the following conditions, any one or more of which may be waived by
the Acquirer:
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2.3.1 the covenants and obligations that the Company is
required to perform or to comply with pursuant to
this Agreement, at or prior to the Closing, must have
been duly performed and complied with in all material
respects;
2.3.2 The Company shall have available under its
Certificate of Incorporation sufficient authorized
shares of Common Stock to issue the Shares to the
Acquirer; and
2.3.3 the representation and warranties made by the Company
herein shall be true and correct in all material
respects as of any Closing Date.
3. RESTRICTIONS ON RESALE OF SHARES.
3.1 Legends. The Acquirer understands and acknowledges that the Shares are
not registered under the Securities Act of 1933 (the "Act") and that
under the Act and other applicable laws the Acquirer may be required
to hold such Shares for an indefinite period of time. Each stock
certificate representing Shares shall bear the following legends:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). ANY TRANSFER OF SUCH
SECURITIES SHALL BE INVALID UNLESS A REGISTRATION STATEMENT UNDER THE
ACT IS IN EFFECT AS TO SUCH TRANSFER OR, IN THE OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE COMPANY, SUCH REGISTRATION IS UNNECESSARY
FOR SUCH TRANSFER TO COMPLY WITH THE ACT. THE SECURITIES REPRESENTED
HEREBY ARE SUBJECT TO THE TERMS OF THE COMMON STOCK PURCHASE
AGREEMENT, DATED AS OF MARCH 19, 2008. A COPY OF THE AGREEMENT CAN BE
OBTAINED FROM THE SECRETARY OF THE COMPANY."
3.2 Limits on Sales. The Acquirer agrees that if it decides to resell some
or all of the Shares, it will do so only in an appropriate manner
through orderly sales executed through a top-tier brokerage firm, and
based upon whether the shares are registered or unregistered, i.e., on
the Nasdaq National Market or in a Rule 144A compliant transaction.
Subject to the foregoing restrictions, the Acquirer may sell or resell
the Shares in any lot size, or at any volume, desired by the Acquirer.
3.3 Further Limitations. The Company shall not be required (i) to transfer
on its books any Shares that have been sold or otherwise transferred
in violation of any of the provisions of this Agreement or applicable
securities laws; or (ii) to treat as owner of such Shares or to accord
the right to vote or pay dividends to any purchaser or other
transferee to whom such Shares shall have been so transferred in
violation of any of the provisions of this Agreement or applicable
securities laws.
4. REGISTRATION RIGHTS.
4.1 The Company agrees to file with the Securities and Exchange Commission
(the "Commission"), as promptly as practicable using commercially
reasonable efforts and in any event within one hundred and twenty
(120) 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 the Acquirer. The Company agrees to
diligently pursue making that Registration Statement effective. The
Company will make commercially reasonable efforts to notify the
Acquirer of the effectiveness of the Registration Statement within one
(1) business day of receiving notice from the Commission declaring the
Registration Statement effective, but no later than the close of
business (Pacific Time) of the second business day after receipt of
such notice from the Commission.
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4.2 The Company shall notify the Acquirer as promptly as possible of any
review initiated by the Commission with respect to any such
Registration Statement.
4.3 The Company will maintain the Registration Statement or 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 the Acquirer
receives an opinion of counsel to the Company, which counsel shall be
reasonably acceptable to the Acquirer, that the Shares may be sold
under the provisions of Rule 144, (iv) the date that all Shares have
been otherwise transferred to persons who may trade such shares
without restriction under the Act, and the Company has delivered a new
certificate or other evidence of ownership for such securities not
bearing a restrictive legend, or (v) the date all Shares may be sold
at any time pursuant to Rule 144 or any similar provision then in
effect under the Act in the opinion of counsel to the Company, which
counsel shall be reasonably acceptable to the Acquirer (the
"Effectiveness Period").
4.4 All fees, disbursements and out-of-pocket expenses and costs incurred
by the Company in connection with the preparation and filing of the
Registration Statement under Section 4.1 and in complying with
applicable securities and Blue Sky laws (including, without
limitation, all attorneys' fees of the Company) shall be borne by the
Company. The Acquirer shall bear the cost of underwriting and/or
brokerage discounts, fees and commissions, if any, applicable to the
Shares being registered and the fees and expenses of their counsel.
4.5 The Company, at its expense, shall furnish the Acquirer 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 the Acquirer may
reasonably request, in order to facilitate the public sale or other
disposition of all or any of the Shares by the Acquirer, provided,
however, that the obligation of the Company to deliver copies of
prospectuses or preliminary prospectuses to the Acquirer shall be
subject to the receipt by the Company of reasonable assurances from
the Acquirer that the Acquirer 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.
4.6 The Acquirer will cooperate with the Company in all respects in
connection with this Agreement, including timely supplying all
information reasonably requested by the Company (which shall include
all information regarding the Acquirer and proposed manner of sale of
the Shares required to be disclosed in any Registration Statement) and
executing and returning all documents reasonably requested in
connection with the registration and sale of the Shares and entering
into and performing their obligations under any underwriting
agreement, if the offering is an underwritten offering, in usual and
customary form, with the managing underwriter or underwriters of such
underwritten offering. Nothing in this Agreement shall obligate the
Acquirer to consent to be named as an underwriter in any Registration
Statement.
5. REPRESENTATIONS AND ACKNOWLEDGEMENT OF THE COMPANY.
The Company hereby represents, warrants and covenants to the Acquirer
as follow:
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5.1 Organization, Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite
corporate power and authority to carry on its business as now
conducted and as presently proposed to be conducted. The Company is
duly qualified to transact business and is in good standing as a
foreign corporation in each jurisdiction in which the failure to so
qualify would have a material adverse effect on its business or
properties.
5.2 Authorization. The Company has full right, power, authority and
capacity to enter into this Agreement and to consummate the
transactions contemplated hereby, including the requirements for the
use of Form S-3 for registration of the Shares and has taken all
necessary action to authorize the execution, delivery and performance
of this Agreement. Upon execution and delivery, this Agreement will
constitute a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer, liquidation or
similar laws relating to, or affecting generally, the enforcement of
creditor's rights and remedies or by other equitable principles of
general application from time to time in effect.
5.3 Valid Issuance of Common Stock. The Shares, when issued, sold and
delivered in accordance with the terms hereof for the consideration
expressed herein, will be duly and validly authorized and issued,
fully paid and nonassessable and free of restrictions on transfer
other than restrictions on transfer under this Agreement and
applicable state and federal securities laws.
5.4 Legal Proceedings and Orders. There is no action, suit, proceeding or
investigation pending or threatened against the Company that questions
the validity of this Agreement or the right of the Company to enter
into this Agreement or to consummate the transactions contemplated
hereby, nor is the Company aware of any basis for any of the forgoing.
The Company is neither a party nor subject to the provisions of any
order, writ, injunction, judgment or decree of any court or government
agency or instrumentality that would affect the ability of the Company
to enter into this Agreement or to consummate the transactions
contemplated hereby.
6. REPRESENTATIONS AND ACKNOWLEDGMENTS OF THE ACQUIRER.
The Acquirer hereby represents, warrants, acknowledges and agrees that:
6.1 Investment. The Acquirer is acquiring the Shares for the Acquirer's
own account, and not directly or indirectly for the account of any
other person. The Acquirer is acquiring the Shares for investment and
not with a view to distribution or resale thereof, except in
compliance with the Act and any applicable state law regulating
securities.
6.2 Access to Information. Acquirer has consulted with its own attorney,
accountant, or investment advisor as the Acquirer has deemed advisable
with respect to the investment and has determined its suitability for
Acquirer. The Acquirer has had the opportunity to ask questions of,
and to receive answers from, appropriate executive officers of the
Company with respect to the terms and conditions of the transactions
contemplated hereby and with respect to the business, affairs,
financial condition and results of operations of the Company. The
Acquirer has had access to such financial and other information as is
necessary in order for the Acquirer to make a fully informed decision
as to investment in the Company, and has had the opportunity to obtain
any additional information necessary to verify any of such information
to which the Acquirer has had access. Acquirer acknowledges that
neither the Company nor any of its officers, directors, employees,
agents, representatives, or advisors have made any representation or
warranty other than those specifically expressed herein.
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6.3 Business and Financial Expertise. The Acquirer further represents and
warrants that it has such business or financial expertise as to be
able to evaluate its investment in the Company and purchase of the
Shares.
6.4 Speculative Investment. The Acquirer acknowledges that the investment
in the Company represented by the Shares is highly speculative in
nature and is subject to a high degree of risk of loss in whole or in
part; the amount of such investment is within the Acquirer's risk
capital means and is not so great in relation to the Acquirer's total
financial resources as would jeopardize the personal financial needs
of the Acquirer in the event such investment were lost in whole or in
part.
6.5 Unregistered Securities. Acquirer acknowledges that:
6.5.1 The Acquirer must bear the economic risk of
investment for an indefinite period of time because
the Shares have not been registered under the
Act and therefore cannot and will not be sold
unless they are subsequently registered under the
Act or an exemption from such registration is
available. The Company has made no agreements,
covenants or undertakings whatsoever to register
any of the Shares under the Act, except as provided
in Section 4 above. The Company has made no
representations, warranties or covenants
whatsoever as to whether any exemption from the
Act, including, without limitation, any exemption
for limited sales in routine brokers' transactions
pursuant to Rule 144 under the Act, will become
available and any such exemption pursuant to Rule
144, if available at all, will not be available
unless: (i) a public trading market then exists in
the Company's common stock, (ii) the Company has
complied with the information requirements of Rule
144, and (iii) all other terms and conditions of
Rule 144 have been satisfied.
6.5.2 Transfer of the Shares has not been registered or
qualified under any applicable state law regulating
securities and, therefore, the Shares cannot and
will not be sold unless they are subsequently
registered or qualified under any such act or an
exemption therefrom is available. The Company has
made no agreements, covenants or undertakings
whatsoever to register or qualify any of the Shares
under any such act. The Company has made no
representations, warranties or covenants whatsoever
as to whether any exemption from any such act will
become available.
6.5.3 The Acquirer hereby certifies that it is an
"accredited investor" as that term is defined in
Rule 501 under the Act.
6.6 Authorization. The Acquirer has full right, power, authority and
capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and thereby and has taken all
necessary action to authorize the execution, delivery and performance
of this Agreement. Upon execution and delivery, this Agreement will
constitute a valid and binding obligation of the Acquirer enforceable
against the Acquirer in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer, liquidation or
similar laws relating to, or affecting generally, the enforcement of
creditor's rights and remedies or by other equitable principles of
general application from time to time in effect.
7. TAX ADVICE. The Acquirer acknowledges that the Acquirer has not relied
and will not rely upon the Company or the Company's counsel with
respect to any tax consequences related to the ownership, purchase, or
disposition of the shares. The Acquirer assumes full responsibility for
all such consequences and for the preparation and filing of all tax
returns and elections which may or must be filed in connection with the
shares.
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8. NOTICES. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been duly
given on the date of 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 the Company at: Geron Corporation
230 Constitution Drive
Menlo Park, California 94025
Attention: Chief Financial Officer
Telephone: (650) 473-7700
Facsimile: (650) 473-7750
With a copy to: Geron Corporation
230 Constitution Drive
Menlo Park, California 94025
Attention: Senior Director, Legal
Telephone: (650) 473-7775
Facsimile: (650) 566-7181
To the Acquirer at: David D. Bohannon Organization
60 Hillsdale Mall
San Mateo, CA 94403-3497
Attention: Chief Financial Officer
Telephone: (650) 345-8222
Facsimile: (650) 573-5457
9. BINDING EFFECT. This Agreement shall be binding upon the heirs, legal
representatives and successors of the Company and of the Acquirer;
provided, however, that the Acquirer may not assign any rights or
obligations under this Agreement. The Company's rights under this
Agreement shall be freely assignable.
10. ATTORNEYS' FEES. If any action or proceeding or arbitration is commenced
by either party to enforce its rights under this Agreement or to collect
damages as a result of the breach of any of the provisions of this
Agreement, the prevailing party in such action or proceeding or
arbitration, including any bankruptcy, insolvency or appellate
proceedings, shall be entitled to recover all reasonable out-of-pocket
costs and expenses, including, without limitation, reasonable attorneys'
fees and court costs, in addition to any other relief awarded by the
court or arbitrator.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, United States of
America.
12. 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.
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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, and the Leases, 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 Agreement as of
the Effective Date.
Geron Corporation
/s/ David L. Greenwood
---------------------------
By: David L. Greenwood
Title: Executive Vice President and Chief
Financial Officer
DAVID D. BOHANNON ORGANIZATION
/s/ Scott Bohannon
---------------------------
By: Scott Bohannon
Title: Senior Vice President
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