As filed with the Securities and Exchange Commission on May 5, 2004
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GERON CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
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Delaware 75-2287752
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
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230 Constitution Drive
Menlo Park, California 94025
(650) 473-7700
(Address, Including Zip Code and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
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Thomas B. Okarma
President and Chief Executive Officer
Geron Corporation
230 Constitution Drive
Menlo Park, California 94025
(650) 473-7700
(Name, Address, Including Zip Code and Telephone Number,
Including Area Code, of Agent for Service)
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Copies to:
Alan C. Mendelson, Esq.
Latham & Watkins LLP
135 Commonwealth Drive
Menlo Park, California 94025
(650) 328-4600
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Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box [ ]
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CALCULATION OF REGISTRATION FEE
===================================================================================================================
Proposed Maximum
Aggregate Offering Amount of
Title of Each Class of Securities to be Registered (1) Price (1) Registration Fee (2)
---------------------------------------------------------------- ------------------------- ------------------------
Debt securities, common stock, preferred stock and warrants to
purchase debt securities, common stock or preferred stock (3) -- --
Total....................................................... $150,000,000 $19,005
================================================================ ========================= ========================
(1) Not specified as to each class of securities to be registered pursuant to
General Instruction II(D) to Form S-3 under the Securities Act.
(2) The registration fee has been calculated in accordance with Rule 457(o)
under the Securities Act.
(3) Includes an indeterminate number of securities that may be issued in
primary offerings or upon exercise, conversion or exchange of any
securities registered hereunder that provide for exercise, conversion or
exchange.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine
The information contained in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MAY 5, 2004
PROSPECTUS
$150,000,000
GERON CORPORATION
Debt Securities, Common Stock,
Preferred Stock and Warrants
We may from time to time sell any combination of debt securities, preferred
stock, common stock and warrants described in this prospectus in one or more
offerings. The aggregate initial offering price of all securities sold under
this prospectus will not exceed $150,000,000.
This prospectus provides a general description of the securities we may
offer. Each time we sell securities, we will provide specific terms of the
securities offered in a supplement to this prospectus. The prospectus supplement
may also add, update or change information contained in this prospectus. You
should read this prospectus and the applicable prospectus supplement carefully
before you invest in any securities. This prospectus may not be used to
consummate a sale of securities unless accompanied by the applicable prospectus
supplement.
We will sell these securities directly to our stockholders or to purchasers
or through agents on our behalf or through underwriters or dealers as designated
from time to time. If any agents or underwriters are involved in the sale of any
of these securities, the applicable prospectus supplement will provide the names
of the agents or underwriters and any applicable fees, commissions or discounts.
Our common stock is traded on the Nasdaq National Market under the symbol
"GERN." On May 3, 2004, the closing price of our common stock was $8.52.
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Investing in our common stock involves a high degree of risk. See "Risk
Factors" beginning on page 1 for a discussion of material risks that you should
consider before you invest in our securities being sold with this prospectus.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of the prospectus. Any representation to the contrary is a
criminal offense.
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The date of this prospectus is May ___, 2004.
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS.......................................................1
ABOUT GERON.................................................................1
RISK FACTORS................................................................1
FORWARD-LOOKING STATEMENTS..................................................2
RATIO OF EARNINGS TO FIXED CHARGES..........................................2
USE OF PROCEEDS.............................................................2
PLAN OF DISTRIBUTION........................................................2
DESCRIPTION OF DEBT SECURITIES..............................................4
DESCRIPTION OF COMMON STOCK................................................12
DESCRIPTION OF PREFERRED STOCK.............................................13
DESCRIPTION OF WARRANTS....................................................15
CERTAIN PROVISIONS OF DELAWARE LAW AND OF THE COMPANY'S CHARTER
AND BYLAWS................................................................16
LEGAL MATTERS..............................................................17
EXPERTS....................................................................17
LIMITATION ON LIABILITY AND DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES............................17
WHERE YOU CAN FIND MORE INFORMATION........................................18
ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement that we filed
with the Securities and Exchange Commission utilizing a "shelf" registration
process. Under this shelf registration process, we may sell any combination of
the securities described in this prospectus in one or more offerings up to a
total dollar amount of $150,000,000. This prospectus provides you with a general
description of the securities we may offer. Each time we sell securities under
this shelf registration, we will provide a prospectus supplement that will
contain specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this
prospectus. You should read both this prospectus and any prospectus supplement
together with additional information described under the next heading "Where You
Can Find More Information."
We have not authorized any dealer, salesman or other person to give any
information or to make any representation other than those contained or
incorporated by reference in this prospectus and the accompanying supplement to
this prospectus. You must not rely upon any information or representation not
contained or incorporated by reference in this prospectus or the accompanying
prospectus supplement. This prospectus and the accompanying supplement to this
prospectus do not constitute an offer to sell or the solicitation of an offer to
buy any securities other than the registered securities to which they relate,
nor do this prospectus and the accompanying supplement to this prospectus
constitute an offer to sell or the solicitation of an offer to buy securities in
any jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. You should not assume that the information
contained in this prospectus and the accompanying prospectus supplement is
accurate on any date subsequent to the date set forth on the front of the
document or that any information we have incorporated by reference is correct on
any date subsequent to the date of the document incorporated by reference, even
though this prospectus and any accompanying prospectus supplement is delivered
or securities sold on a later date.
ABOUT GERON
We are a biopharmaceutical company focused on developing and
commercializing therapeutic and diagnostic products for cancer based on our
telomerase technology, and cell-based therapeutics using our human embryonic
stem cell technology.
We were incorporated in 1990 under the laws of Delaware. Our principal
executive offices are located at 230 Constitution Drive, Menlo Park, California
94025 and our telephone number is (650) 473-7700.
RISK FACTORS
You should carefully consider the specific risks set forth under the
caption "Risk Factors" in the applicable prospectus supplement and under the
caption "Additional Factors That May Affect Future Results" under Item 1 of Part
I of our Annual Report on Form 10-K for the fiscal year ended December 31, 2003,
which are incorporated by reference in this prospectus, before making an
investment decision.
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FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference into this
prospectus contain forward-looking statements that are based on current
expectations, estimates and projections about our industry, management's
beliefs, and assumptions made by management. Words such as "anticipates,"
"expects," "intends," "plans," "believes," "seeks," "estimates," and variations
of such words and similar expressions are intended to identify such
forward-looking statements. These statements are not guarantees of future
performance and are subject to certain risks, uncertainties and assumptions that
are difficult to predict; therefore, actual results may differ materially from
those expressed or forecasted in any forward-looking statements. The risks and
uncertainties include those noted in "Risk Factors" above and in the documents
incorporated by reference. We undertake no obligation to update publicly any
forward-looking statements, whether as a result of new information, future
events or otherwise.
RATIO OF EARNINGS TO FIXED CHARGES
Our earnings are inadequate to cover fixed charges. The following table
sets forth the dollar amount of the coverage deficiency. We have not included a
ratio of earnings to combined fixed charges and preferred stock dividends
because we do not have any preferred stock outstanding.
Three
Months Ended
Year Ended December 31, March 31,
------------------------------------------------------------------------------
1999 2000 2001 2002 2003 2004
----------- ------------ ------------ ----------- ---------- ------------
Ratio of earnings to fixed N/A N/A N/A N/A N/A N/A
changes
Coverage deficiency (1) $ 41,023 $ 33,666 $ 41,142 $ 33,084 $ 29,051 $ 51,447
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(1) All amounts in thousands.
USE OF PROCEEDS
Unless otherwise provided in the applicable prospectus supplement, we
intend to use the net proceeds from the sale of the securities under this
prospectus for general corporate purposes, which may include funding research
and development, increasing our working capital, reducing indebtedness,
acquisitions or investments in businesses, products or technologies that are
complementary to our own, and capital expenditures. We will set forth in the
prospectus supplement our intended use for the net proceeds received from the
sale of any securities. Pending the application of the net proceeds, we intend
to invest the net proceeds in short-term, investment-grade, interest-bearing
securities.
PLAN OF DISTRIBUTION
We may sell the securities from time to time pursuant to underwritten
public offerings, negotiated transactions, block trades or a combination of
these methods. We may sell the securities (1) through underwriters or dealers,
(2) through agents and/or (3) directly to one or more purchasers. We may
distribute the securities from time to time in one or more transactions:
-- at a fixed price or prices, which may be changed;
-- at market prices prevailing at the time of sale;
-- at prices related to such prevailing market prices; or
-- at negotiated prices.
We may solicit directly offers to purchase the securities being offered
by this prospectus. We may also designate agents to solicit offers to purchase
the securities from time to time. We will name in a prospectus supplement any
agent involved in the offer or sale of our securities.
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If we utilize a dealer in the sale of the securities being offered by
this prospectus, we will sell the securities to the dealer, as principal. The
dealer may then resell the securities to the public at varying prices to be
determined by the dealer at the time of resale.
If we utilize an underwriter in the sale of the securities being
offered by this prospectus, we will execute an underwriting agreement with the
underwriter at the time of sale and we will provide the name of any underwriter
in the prospectus supplement that the underwriter will use to make resales of
the securities to the public. In connection with the sale of the securities, we,
or the purchasers of securities for whom the underwriter may act as agent, may
compensate the underwriter in the form of underwriting discounts or commissions.
The underwriter may sell the securities to or through dealers, and the
underwriter may compensate those dealers in the form of discounts, concessions
or commissions.
We will provide in the applicable prospectus supplement any
compensation we pay to underwriters, dealers or agents in connection with the
offering of the securities, and any discounts, concessions or commissions
allowed by underwriters to participating dealers. Underwriters, dealers and
agents participating in the distribution of the securities may be deemed to be
underwriters within the meaning of the Securities Act of 1933, as amended, and
any discounts and commissions received by them and any profit realized by them
on resale of the securities may be deemed to be underwriting discounts and
commissions. We may enter into agreements to indemnify underwriters, dealers and
agents against civil liabilities, including liabilities under the Securities
Act, or to contribute to payments they may be required to make in respect
thereof.
The securities may or may not be listed on a national securities
exchange. To facilitate the offering of securities, certain persons
participating in the offering may engage in transactions that stabilize,
maintain or otherwise affect the price of the securities. This may include
over-allotments or short sales of the securities, which involves the sale by
persons participating in the offering of more securities than we sold to them.
In these circumstances, these persons would cover such over-allotments or short
positions by making purchases in the open market or by exercising their
over-allotment option. In addition, these persons may stabilize or maintain the
price of the securities by bidding for or purchasing securities in the open
market or by imposing penalty bids, whereby selling concessions allowed to
dealers participating in the offering may be reclaimed if securities sold by
them are repurchased in connection with stabilization transactions. The effect
of these transactions may be to stabilize or maintain the market price of the
securities at a level above that which might otherwise prevail in the open
market. These transactions may be discontinued at any time.
The underwriters, dealers and agents may engage in transactions with
us, or perform services for us, in the ordinary course of business.
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DESCRIPTION OF DEBT SECURITIES
The debt securities covered by this prospectus will be our convertible
senior or subordinated debt securities issued under one or more separate senior
or subordinated indentures to be entered into between us and a trustee to be
identified in the applicable prospectus supplement. This prospectus, together
with its prospectus supplement, will describe all the material terms of a
particular series of debt securities.
The following is a summary of the most important provisions and
definitions of the indentures. For additional information, you should look at
the applicable indenture that is filed as an exhibit to the registration
statement which includes the prospectus. The indentures are substantially
identical except for the subordination provisions described below under
"Subordinated Debt Securities." In this description of the debt securities, the
words "Geron", "we", "us" or "our" refer only to Geron and not to any of our
subsidiaries.
General
Debt securities may be issued in separate series without limitation as
to aggregate principal amount. We may specify a maximum aggregate principal
amount for the debt securities of any series.
We are not limited as to the amount of debt securities we may issue
under the indentures. The prospectus supplement will set forth:
-- whether the debt securities will be senior or subordinated;
-- the offering price;
-- the title;
-- any limit on the aggregate principal amount;
-- the person who shall be entitled to receive interest, if other
than the record holder on the record date;
-- the date the principal will be payable;
-- the interest rate, if any, the date interest will accrue, the
interest payment dates and the regular record dates;
-- the place where payments may be made;
-- any mandatory or optional redemption provisions;
-- if applicable, the method for determining how the principal,
premium, if any, or interest will be calculated by reference to
an index or formula;
-- if other than U.S. currency, the currency or currency units in
which principal, premium, if any, or interest will be payable and
whether we or the holder may elect payment to be made in a
different currency;
-- the portion of the principal amount that will be payable upon
acceleration of stated maturity, if other than the entire
principal amount;
-- if the principal amount payable at stated maturity will not be
determinable as of any date prior to stated maturity, the amount
which will be deemed to be the principal amount;
-- any defeasance provisions if different from those described below
under "Satisfaction and Discharge; Defeasance;"
-- any conversion or exchange provisions;
-- any obligation to redeem or purchase the debt securities pursuant
to a sinking fund;
-- whether the debt securities will be issuable in the form of a
global security;
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-- any subordination provisions, if different from those described
below under "Subordinated Debt Securities;"
-- any deletions of, or changes or additions to, the events of
default or covenants; and
-- any other specific terms of such debt securities.
Unless otherwise specified in the prospectus supplement:
-- the debt securities will be registered debt securities; and
-- registered debt securities denominated in U.S. dollars will be
issued in denominations of $1,000 or an integral multiple of
$1,000.
Debt securities may be sold at a substantial discount below their
stated principal amount, bearing no interest or interest at a rate which at the
time of issuance is below market rates.
Exchange and Transfer
Debt securities may be transferred or exchanged at the office of the
security registrar or at the office of any transfer agent designated by us.
We will not impose a service charge for any transfer or exchange, but
we may require holders to pay any tax or other governmental charges associated
with any transfer or exchange.
In the event of any potential redemption of debt securities of any
series, we will not be required to:
-- issue, register the transfer of, or exchange, any debt security
of that series during a period beginning at the opening of
business 15 days before the day of mailing of a notice of
redemption and ending at the close of business on the day of the
mailing; or
-- register the transfer of or exchange any debt security of that
series selected for redemption, in whole or in part, except the
unredeemed portion being redeemed in part.
We may initially appoint the trustee as the security registrar. Any
transfer agent, in addition to the security registrar, initially designated by
us will be named in the prospectus supplement. We may designate additional
transfer agents or change transfer agents or change the office of the transfer
agent. However, we will be required to maintain a transfer agent in each place
of payment for the debt securities of each series.
Global Securities
The debt securities of any series may be represented, in whole or in
part, by one or more global securities. Each global security will:
-- be registered in the name of a depositary that we will identify
in a prospectus supplement;
-- be deposited with the depositary or nominee or custodian; and
-- bear any required legends.
No global security may be exchanged in whole or in part for debt
securities registered in the name of any person other than the depositary or any
nominee unless:
-- the depositary has notified us that it is unwilling or unable to
continue as depositary or has ceased to be qualified to act as
depositary;
-- an event of default is continuing; or
-- any other circumstances described in a prospectus supplement.
As long as the depositary, or its nominee, is the registered owner of a
global security, the depositary or nominee will be considered the sole owner and
holder of the debt securities represented by the global security for all
purposes under the indenture. Except in the above limited circumstances, owners
of beneficial interests in a global security:
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-- will not be entitled to have the debt securities registered in
their names;
-- will not be entitled to physical delivery of certificated debt
securities; and
-- will not be considered to be holders of those debt securities
under the indentures.
Payments on a global security will be made to the depositary or its
nominee as the holder of the global security. Some jurisdictions have laws that
require that certain purchasers of securities take physical delivery of such
securities in definitive form. These laws may impair the ability to transfer
beneficial interests in a global security.
Institutions that have accounts with the depositary or its nominee are
referred to as "participants." Ownership of beneficial interests in a global
security will be limited to participants and to persons that may hold beneficial
interests through participants. The depositary will credit, on its book-entry
registration and transfer system, the respective principal amounts of debt
securities represented by the global security to the accounts of its
participants.
Ownership of beneficial interests in a global security will be shown on
and effected through records maintained by the depositary, with respect to
participants' interests, or any participant, with respect to interests of
persons held by participants on their behalf.
Payments, transfers and exchanges relating to beneficial interests in a
global security will be subject to policies and procedures of the depositary.
The depositary policies and procedures may change from time to time.
Neither we nor the trustee will have any responsibility or liability for the
depositary's or any participant's records with respect to beneficial interests
in a global security.
Payment and Paying Agent
The provisions of this paragraph will apply to the debt securities
unless otherwise indicated in the prospectus supplement. Payment of interest on
a debt security on any interest payment date will be made to the person in whose
name the debt security is registered at the close of business on the regular
record date. Payment on debt securities of a particular series will be payable
at the office of a paying agent or paying agents designated by us. However, at
our option, we may pay interest by mailing a check to the record holder. The
corporate trust office will be designated as our sole paying agent.
We may also name any other paying agents in the prospectus supplement.
We may designate additional paying agents, change paying agents or change the
office of any paying agent. However, we will be required to maintain a paying
agent in each place of payment for the debt securities of a particular series.
All moneys paid by us to a paying agent for payment on any debt
security which remain unclaimed at the end of two years after such payment was
due will be repaid to us. Thereafter, the holder may look only to us for such
payment.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge into any other person, in a
transaction in which we are not the surviving corporation, or convey, transfer
or lease our properties and assets substantially as an entirety to, any person,
unless:
-- the successor, if any, is a U.S. corporation, limited liability
company, partnership, trust or other entity;
-- the successor assumes our obligations on the debt securities and
under the indenture;
-- immediately after giving effect to the transaction, no default or
event of default shall have occurred and be continuing; and
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-- certain other conditions are met.
Events of Default
Unless we inform you otherwise in the prospectus supplement, the
indenture will define an event of default with respect to any series of debt
securities as one or more of the following events:
(1) failure to pay principal of or any premium on any debt security of
that series when due;
(2) failure to pay any interest on any debt security of that series
for 30 days when due;
(3) failure to deposit any sinking fund payment when due;
(4) failure to perform any other covenant in the indenture continued
for 60 days after being given the notice required in the
indenture;
(5) our bankruptcy, insolvency or reorganization; and
(6) any other event of default specified in the prospectus supplement.
An event of default of one series of debt securities is not necessarily
an event of default for any other series of debt securities.
If an event of default, other than an event of default described in
clause (5) above, shall occur and be continuing, either the trustee or the
holders of at least 25% in aggregate principal amount of the outstanding
securities of that series may declare the principal amount of the debt
securities of that series to be due and payable immediately.
If an event of default described in clause (5) above shall occur, the
principal amount of all the debt securities of that series will automatically
become immediately due and payable. Any payment by us on the subordinated debt
securities following any such acceleration will be subject to the subordination
provisions described below under "Subordinated Debt Securities."
After acceleration the holders of a majority in aggregate principal
amount of the outstanding securities of that series may, under certain
circumstances, rescind and annul such acceleration if all events of default,
other than the non-payment of accelerated principal, or other specified amount,
have been cured or waived.
Other than the duty to act with the required care during an event of
default, the trustee will not be obligated to exercise any of its rights or
powers at the request of the holders unless the holders shall have offered to
the trustee reasonable indemnity. Generally, the holders of a majority in
aggregate principal amount of the outstanding debt securities of any series will
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee or exercising any trust or power
conferred on the trustee.
A holder will not have any right to institute any proceeding under the
indentures, or for the appointment of a receiver or a trustee, or for any other
remedy under the indentures, unless:
(1) the holder has previously given to the trustee written notice of a
continuing event of default with respect to the debt securities of
that series;
(2) the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have made a written
request and have offered reasonable indemnity to the trustee to
institute the proceeding; and
(3) the trustee has failed to institute the proceeding and has not
received direction inconsistent with the original request from the
holders of a majority in aggregate principal amount of the
outstanding debt securities of that series within 60 days after
the original request.
Holders may, however, sue to enforce the payment of principal, premium
or interest on any debt security on or after the due date or to enforce the
right, if any, to convert any debt security without following the procedures
listed in (1) through (3) above.
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We will furnish the trustee an annual statement by our officers as to
whether or not we are in default in the performance of the indenture and, if so,
specifying all known defaults.
Modification and Waiver
We and the trustee may make modifications and amendments to the
indentures with the consent of the holders of a majority in aggregate principal
amount of the outstanding securities of each series affected by the modification
or amendment.
However, neither we nor the trustee may make any modification or
amendment without the consent of the holder of each outstanding security of that
series affected by the modification or amendment if such modification or
amendment would:
-- change the stated maturity of any debt security;
-- reduce the principal, premium, if any, or interest on any debt
security;
-- reduce the principal of an original issue discount security or
any other debt security payable on acceleration of maturity;
-- reduce the rate of interest on any debt security;
-- change the currency in which any debt security is payable;
-- impair the right to enforce any payment after the stated maturity
or redemption date;
-- waive any default or event of default in payment of the principal
of, premium or interest on any debt security;
-- waive a redemption payment or modify any of the redemption
provisions of any debt security;
-- adversely affect the right to convert any debt security; or
-- change the provisions in the indenture that relate to modifying
or amending the indenture.
Satisfaction and Discharge; Defeasance
We may be discharged from our obligations on the debt securities of any
series that have matured or will mature or be redeemed within one year if we
deposit with the trustee enough cash to pay all the principal, interest and any
premium due to the stated maturity date or redemption date of the debt
securities.
Each indenture contains a provision that permits us to elect:
-- to be discharged from all of our obligations, subject to limited
exceptions, with respect to any series of debt securities then
outstanding; and/or
-- to be released from our obligations under the following covenants
and from the consequences of an event of default resulting from a
breach of these covenants:
(1) the subordination provisions under the subordinated
indenture; and
(2) covenants as to payment of taxes and maintenance of
corporate existence.
To make either of the above elections, we must deposit in trust with
the trustee enough money to pay in full the principal, interest and premium on
the debt securities. This amount may be made in cash and/or U.S. government
obligations. As a condition to either of the above elections, we must deliver to
the trustee an opinion of counsel that the holders of the debt securities will
not recognize income, gain or loss for Federal income tax purposes as a result
of the action.
If any of the above events occurs, the holders of the debt securities
of the series will not be entitled to the benefits of the indenture, except for
the rights of holders to receive payments on debt securities or the registration
of transfer and exchange of debt securities and replacement of lost, stolen or
mutilated debt securities.
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Notices
Notices to holders will be given by mail to the addresses of the
holders in the security register.
Governing Law
The indentures and the debt securities will be governed by, and
construed under, the law of the State of New York.
Regarding the Trustee
The indenture limits the right of the trustee, should it become a
creditor of us, to obtain payment of claims or secure its claims.
The trustee is permitted to engage in certain other transactions.
However, if the trustee, acquires any conflicting interest, and there is a
default under the debt securities of any series for which they are trustee, the
trustee must eliminate the conflict or resign.
Subordinated Debt Securities
Payment on the subordinated debt securities will, to the extent
provided in the indenture, be subordinated in right of payment to the prior
payment in full of all of our senior indebtedness. The subordinated debt
securities also are effectively subordinated to all debt and other liabilities,
including trade payables and lease obligations, if any, of our subsidiaries.
Upon any distribution of our assets upon any dissolution, winding up,
liquidation or reorganization, the payment of the principal of and interest on
the subordinated debt securities will be subordinated in right of payment to the
prior payment in full in cash or other payment satisfactory to the holders of
senior indebtedness of all senior indebtedness. In the event of any acceleration
of the subordinated debt securities because of an event of default, the holders
of any senior indebtedness would be entitled to payment in full in cash or other
payment satisfactory to such holders of all senior indebtedness obligations
before the holders of the subordinated debt securities are entitled to receive
any payment or distribution. The indenture requires us or the trustee to
promptly notify holders of designated senior indebtedness if payment of the
subordinated debt securities is accelerated because of an event of default.
We may not make any payment on the subordinated debt securities,
including upon redemption at the option of the holder of any subordinated debt
securities or at our option, if:
-- a default in the payment of the principal, premium, if any,
interest, rent or other obligations in respect of designated
senior indebtedness occurs and is continuing beyond any
applicable period of grace (called a "payment default"); or
-- a default other than a payment default on any designated senior
indebtedness occurs and is continuing that permits holders of
designated senior indebtedness to accelerate its maturity, and
the trustee receives a notice of such default (called a "payment
blockage notice") from us or any other person permitted to give
such notice under the indenture (called a "non-payment default").
We may resume payments and distributions on the subordinated debt
securities:
-- in the case of a payment default, upon the date on which such
default is cured or waived or ceases to exist; and
-- in the case of a non-payment default, the earlier of the date on
which such nonpayment default is cured or waived or ceases to
exist and 179 days after the date on which the payment blockage
notice is received by the trustee, if the maturity of the
designated senior indebtedness has not been accelerated.
No new period of payment blockage may be commenced pursuant to a
payment blockage notice unless 365 days have elapsed since the initial
effectiveness of the immediately prior payment blockage notice and all scheduled
payments of principal, premium and interest, including any liquidated damages,
on the notes that have come due have been paid in full in cash. No non-payment
default that existed or was continuing on the date of delivery of any payment
blockage notice shall be the basis for any later payment blockage notice unless
the non-payment default is based upon facts or events arising after the date of
delivery of such payment blockage notice.
9
If the trustee or any holder of the notes receives any payment or
distribution of our assets in contravention of the subordination provisions on
the subordinated debt securities before all senior indebtedness is paid in full
in cash, property or securities, including by way of set-off, or other payment
satisfactory to holders of senior indebtedness, then such payment or
distribution will be held in trust for the benefit of holders of senior
indebtedness or their representatives to the extent necessary to make payment in
full in cash or payment satisfactory to the holders of senior indebtedness of
all unpaid senior indebtedness.
In the event of our bankruptcy, dissolution or reorganization, holders
of senior indebtedness may receive more, ratably, and holders of the
subordinated debt securities may receive less, ratably, than our other creditors
(including our trade creditors). This subordination will not prevent the
occurrence of any event of default under the indenture.
As of March 31, 2004, $326,000 senior indebtedness was outstanding. We
are not prohibited from incurring debt, including senior indebtedness, under the
indenture. We may from time to time incur additional debt, including senior
indebtedness.
We are obligated to pay reasonable compensation to the trustee and to
indemnify the trustee against certain losses, liabilities or expenses incurred
by the trustee in connection with its duties relating to the subordinated debt
securities. The trustee's claims for these payments will generally be senior to
those of noteholders in respect of all funds collected or held by the trustee.
Certain Definitions
"indebtedness" means:
(1) all indebtedness, obligations and other liabilities for borrowed
money, including overdrafts, foreign exchange contracts, currency
exchange agreements, interest rate protection agreements, and any
loans or advances from banks, or evidenced by bonds, debentures,
notes or similar instruments, other than any account payable or
other accrued current liability or obligation incurred in the
ordinary course of business in connection with the obtaining of
materials or services;
(2) all reimbursement obligations and other liabilities with respect
to letters of credit, bank guarantees or bankers' acceptances;
(3) all obligations and liabilities in respect of leases required in
conformity with generally accepted accounting principles to be
accounted for as capitalized lease obligations on our balance
sheet;
(4) all obligations and other liabilities under any lease or related
document in connection with the lease of real property which
provides that we are contractually obligated to purchase or cause
a third party to purchase the leased property and thereby
guarantee a minimum residual value of the leased property to the
lessor and our obligations under the lease or related document to
purchase or to cause a third party to purchase the leased
property;
(5) all obligations with respect to an interest rate or other swap,
cap or collar agreement or other similar instrument or agreement
or foreign currency hedge, exchange, purchase agreement or other
similar instrument or agreement;
(6) all direct or indirect guaranties or similar agreements in respect
of, and our obligations or liabilities to purchase, acquire or
otherwise assure a creditor against loss in respect of,
indebtedness, obligations or liabilities of others of the type
described in (1) through (5) above;
(7) any indebtedness or other obligations described in (1) through (6)
above secured by any mortgage, pledge, lien or other encumbrance
existing on property which is owned or held by us; and
(8) any and all refinancings, replacements, deferrals, renewals,
extensions and refundings of, or amendments, modifications or
supplements to, any indebtedness, obligation or liability of the
kind described in clauses (1) through (7) above.
10
"senior indebtedness" means the principal, premium, if any, interest,
including any interest accruing after bankruptcy, and rent or termination
payment on or other amounts due on our current or future indebtedness, whether
created, incurred, assumed, guaranteed or in effect guaranteed by us, including
any deferrals, renewals, extensions, refundings, amendments, modifications or
supplements to the above. However, senior indebtedness does not include:
-- indebtedness that expressly provides that it shall not be senior
in right of payment to the subordinated debt securities or
expressly provides that it is on the same basis or junior to the
subordinated debt securities;
-- our indebtedness to any of our majority-owned subsidiaries; and
-- the subordinated debt securities.
11
DESCRIPTION OF COMMON STOCK
The following summary of the terms of our common stock does not purport
to be complete and is subject to and qualified in its entirety by reference to
our Charter and Bylaws, copies of which are on file with the Commission as
exhibits to registration statements previously filed by us. See "Where You Can
Find More Information."
We have authority to issue 100,000,000 shares of common stock, $0.001
par value per share. As of May 3, 2004, we had 45,255,063 shares of common stock
outstanding.
The holders of our common stock are entitled to one vote per share on
all matters to be voted upon by the stockholders. Subject to preferences that
may be applicable to any outstanding shares of our preferred stock, the holders
of common stock are entitled to receive ratably such dividends, if any, as may
be declared from time to time by our board of directors out of funds legally
available for that purpose. In the event of a liquidation, dissolution or
winding up of the Company, the holders of our common stock are entitled to share
ratably in all assets remaining after payment of liabilities, subject to
preferences applicable to shares of our preferred stock, if any, then
outstanding. The common stock has no preemptive or conversion rights or other
subscription rights. There are no redemption or sinking fund provisions
available to the common stock. All outstanding shares of our common stock are,
and the shares of common stock offered by this prospectus will be, fully paid
and nonassessable.
Transfer Agent and Registrar
The transfer agent and registrar for the common stock is U.S. Stock
Transfer Corporation.
Share Purchase Rights Plan
On July 20, 2001, our board of directors adopted a share purchase
rights plan and declared a dividend distribution of one right for each
outstanding share of common stock to stockholders of record as of July 31, 2001.
Each right entitles the holder to purchase one unit consisting of one
one-thousandth of a share of Series A Junior Participating Preferred Stock for
$100 per unit. Under certain circumstances, if a person or group acquires 15% or
more of our outstanding common stock, holders of the rights (other than the
person or group triggering their exercise) will be able to purchase, in exchange
for the $100 exercise price, shares of our common stock, par value $0.001 per
share, or of any company into which Geron is merged having a value of $200. The
rights expire on July 31, 2011 unless extended by our board of directors.
Classified Board of Directors
The certificate of incorporation provides for the board of directors to
be divided into three classes of directors, with each class as nearly equal in
number as possible, serving staggered three-year terms. As a result,
approximately one-third of the board of directors will be elected each year. The
classified board provision will help to assure the continuity and stability of
the board of directors and the business strategies and policies of Geron as
determined by the board of directors. The classified board provision could have
the effect of discouraging a third party from making a tender offer or
attempting to obtain control of us. In addition, the classified board provision
could delay stockholders who do not agree with the policies of the board of
directors from removing a majority of the board of directors for two years.
12
DESCRIPTION OF PREFERRED STOCK
We have authority to issue 3,000,000 shares of preferred stock, $0.001
par value per share, 50,000 shares of which have been designated Series A Junior
Participating Preferred Stock, $0.001 par value per share, and reserved for
issuance under the share purchase rights plan adopted on July 20, 2001. As of
May 3, 2004, we had no shares of preferred stock outstanding.
General
Under our Certificate of Incorporation, our board of directors is
authorized generally without stockholder approval to issue shares of preferred
stock from time to time, in one or more classes or series. Prior to the issuance
of shares of each series, the board of directors is required by the Delaware
General Corporation Law and our Certificate of Incorporation to adopt
resolutions and file a certificate of designation with the Secretary of State of
the State of Delaware. The certificate of designation fixes for each class or
series the designations, powers, preferences, rights, qualifications,
limitations and restrictions, including, but not limited to, the following:
-- the number of shares constituting each class or series;
-- voting rights;
-- rights and terms of redemption (including sinking fund
provisions);
-- dividend rights and rates;
-- dissolution;
-- terms concerning the distribution of assets;
-- conversion or exchange terms;
-- redemption prices; and
-- liquidation preferences.
All shares of preferred stock offered hereby will, when issued, be
fully paid and nonassessable and will not have any preemptive or similar rights.
Our board of directors could authorize the issuance of shares of preferred stock
with terms and conditions which could have the effect of discouraging a takeover
or other transaction that might involve a premium price for holders of the
shares or which holders might believe to be in their best interests.
We will set forth in a prospectus supplement relating to the class or
series of preferred stock being offered the following terms:
-- the title and stated value of the preferred stock;
-- the number of shares of the preferred stock offered, the
liquidation preference per share and the offering price of the
preferred stock;
-- the dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation applicable to the preferred stock;
-- whether dividends are cumulative or non-cumulative and, if
cumulative, the date from which dividends on the preferred stock
will accumulate;
-- the procedures for any auction and remarketing, if any, for the
preferred stock;
-- the provisions for a sinking fund, if any, for the preferred
stock;
-- the provision for redemption, if applicable, of the preferred
stock;
-- any listing of the preferred stock on any securities exchange;
-- the terms and conditions, if applicable, upon which the preferred
stock will be convertible into common stock, including the
conversion price (or manner of calculation) and conversion
period;
13
-- voting rights, if any, of the preferred stock;
-- whether interests in the preferred stock will be represented by
depositary shares;
-- a discussion of any material and/or special United States Federal
income tax considerations applicable to the preferred stock;
-- the relative ranking and preferences of the preferred stock as to
dividend rights and rights upon the liquidation, dissolution or
winding up of our affairs;
-- any limitations on issuance of any class or series of preferred
stock ranking senior to or on a parity with the class or series
of preferred stock as to dividend rights and rights upon
liquidation, dissolution or winding up of our affairs; and
-- any other specific terms, preferences, rights, limitations or
restrictions of the preferred stock.
Rank
Unless we specify otherwise in the applicable prospectus supplement,
the preferred stock will rank, with respect to dividends and upon our
liquidation, dissolution or winding up:
-- senior to all classes or series of our common stock and to all of
our equity securities ranking junior to the preferred stock;
-- on a parity with all of our equity securities the terms of which
specifically provide that the equity securities rank on a parity
with the preferred stock; and
-- junior to all of our equity securities the terms of which
specifically provide that the equity securities rank senior to
the preferred stock.
The term "equity securities" does not include convertible debt securities.
Transfer Agent and Registrar
The transfer agent and registrar for any series or class of preferred
stock will be set forth in the applicable prospectus supplement.
14
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of debt securities, common stock
or preferred stock. We may issue warrants independently or together with any
other securities offered by any prospectus supplement and may be attached to or
separate from the other offered securities. Each series of warrants will be
issued under a separate warrant agreement to be entered into by us with a
warrant agent The warrant agent will act solely as our agent in connection with
the series of warrants and will not assume any obligation or relationship of
agency or trust for or with any holders or beneficial owners of the warrants.
Further terms of the warrants and the applicable warrant agreements will be set
forth in the applicable prospectus supplement.
The applicable prospectus supplement will describe the terms of the
warrants in respect of which this prospectus is being delivered, including,
where applicable, the following:
-- the title of the warrants;
-- the aggregate number of the warrants;
-- the price or prices at which the warrants will be issued;
-- the designation, terms and number of shares of debt securities,
preferred stock or common stock purchasable upon exercise of the
warrants;
-- the designation and terms of the offered securities, if any, with
which the warrants are issued and the number of the warrants
issued with each offered security;
-- the date, if any, on and after which the warrants and the related
debt securities, preferred stock or common stock will be
separately transferable;
-- the price at which each share of debt securities, preferred stock
or common stock purchasable upon exercise of the warrants may be
purchased;
-- the date on which the right to exercise the warrants shall
commence and the date on which that right shall expire;
-- the minimum or maximum amount of the warrants which may be
exercised at any one time;
-- information with respect to book-entry procedures, if any;
-- a discussion of certain federal income tax considerations; and
-- any other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the
warrants.
15
CERTAIN PROVISIONS OF DELAWARE LAW AND OF
THE COMPANY'S CHARTER AND BYLAWS
The following paragraphs summarize certain provisions of the Delaware
General Corporation Law, or DGCL, and the Company's Charter and Bylaws. The
summary does not purport to be complete and is subject to and qualified in its
entirety by reference to the DGCL and to the Company's Charter and Bylaws,
copies of which are on file with the Commission as exhibits to registration
statements previously filed by the Company. See "Where You Can Find More
Information."
Our Certificate of Incorporation and Bylaws contain provisions that,
together with the ownership position of the officers, directors and their
affiliates, could discourage potential takeover attempts and make it more
difficult for stockholders to change management, which could adversely affect
the market place of our common stock.
Our Certificate of Incorporation limits the personal liability of our
directors to Geron and our stockholders to the fullest extent permitted by the
DGCL. The inclusion of this provision in our Certificate of Incorporation may
reduce the likelihood of derivative litigation against directors and may
discourage or deter stockholders or management from bringing a lawsuit against
directors for breach of their duty of care.
Our Bylaws provide that special meetings of stockholders can be called
only by the board of directors, the Chairman of the board of directors or the
Chief Executive Officer. Stockholders are not permitted to call a special
meeting and cannot require the board of directors to call a special meeting. Any
vacancy on the board of directors resulting from death, resignation, removal or
otherwise or newly created directorships may be filled only by vote of the
majority of directors then in office, or by a sole remaining director. Our
Bylaws also provide for a classified board. See "Description of Common Stock."
We are subject to the "business combination" statute of the DGCL, an
anti-takeover law enacted in 1988. In general, Section 203 of the DGCL prohibits
a publicly-held Delaware corporation from engaging in a "business combination"
with an "interested stockholder," for a period of three years after the date of
the transaction in which a person became an "interested stockholder," unless:
-- prior to such date the board of directors of the corporation
approved either the "business combination" or the transaction
which resulted in the stockholder becoming an "interested
stockholder;"
-- upon consummation of the transaction which resulted in the
stockholder becoming an "interested stockholder," the "interested
stockholder" owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced,
excluding for purposes of determining the number of shares
outstanding those shares owned (1) by persons who are directors
and also officers and (2) employee stock plans in which employee
participants do not have the right to determine confidentially
whether shares held subject to the plan will be tendered in a
tender or exchange offer; or
-- on or subsequent to such date the "business combination" is
approved by the board of directors and authorized at an annual or
special meeting of stockholders by the affirmative vote of a
least 66% of the outstanding voting stock which is not owned by
the "interested stockholder."
A "business combination" includes mergers, stock or asset sales and
other transactions resulting in a financial benefit to the "interested
stockholders." An "interested stockholder" is a person who, together with
affiliates and associates, owns (or within three years, did own) 15% or more of
the corporation's voting stock. Although Section 203 permits us to elect not to
be governed by its provisions, we have not made this election. As a result of
the application of Section 203, potential acquirers of Geron may be discouraged
from attempting to effect an acquisition transaction with us, thereby possibly
depriving holders of our securities of certain opportunities to sell or
otherwise dispose of such securities at above-market prices pursuant to such
transactions.
16
LEGAL MATTERS
Latham & Watkins LLP, Menlo Park, California, will issue an opinion
about certain legal matters with respect to the securities.
EXPERTS
The consolidated financial statements of Geron Corporation appearing in
Geron Corporation's Annual Report (Form 10-K) for the year ended December 31,
2003 have been audited by Ernst & Young LLP, independent auditors, as set forth
in their report thereon included therein and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by reference in
reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
LIMITATION ON LIABILITY AND DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Our Bylaws provide for indemnification of our directors and officers to
the fullest extent permitted by law. Insofar as indemnification for liabilities
under the Securities Act may be permitted to directors, officers or controlling
persons of the Company pursuant to the Company's Certificate of Incorporation,
as amended, Bylaws and the DGCL, the Company has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
17
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Commission. You may read and copy any document we
file at the Commission's public reference room located at 450 Fifth Street,
N.W., Washington, D.C. 20549. Please call the Commission at 1-800-SEC-0330 for
further information on the public reference room. Our SEC filings are also
available to the public at the Commission's web site at http://www.sec.gov. You
may also inspect copies of these materials and other information about us at the
offices of the Nasdaq Stock Market, Inc., National Market System, 1735 K Street,
N.W., Washington, D.C. 20006-1500.
The Commission allows us to "incorporate by reference" the information
we file with them which means that we can disclose important information to you
by referring you to those documents instead of having to repeat the information
in this prospectus. The information incorporated by reference is considered to
be part of this prospectus, and later information that we file with the
Commission will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the Commission under Sections 13(a), 13(c), 14, or 15(d) of the Exchange
Act between the date of this prospectus and the termination of the offering:
-- Our annual report on Form 10-K for the fiscal year ended December
31, 2003;
-- Our current reports on Form 8-K filed on March 10, 2004 and April
28, 2004;
-- Our definitive proxy statement filed pursuant to Section 14 of
the Exchange Act in connection with our 2004 Annual Meeting of
Stockholders filed on April 6, 2004;
-- Our quarterly report on Form 10-Q for the three months ended
March 31, 2004; and
-- The description of our common stock set forth in our registration
statement on Form 8-A, filed with the Commission on June 13, 1996
(File No. 0-20859).
This prospectus is part of a registration statement on Form S-3 we have
filed with the Commission under the Securities Act. This prospectus does not
contain all of the information in the registration statement. We have omitted
certain parts of the registration statement, as permitted by the rules and
regulations of the Commission. You may inspect and copy the registration
statement, including exhibits, at the Commission's public reference room or
internet site. Our statements in this prospectus about the contents of any
contract or other document are not necessarily complete. You should refer to the
copy of each contract or other document we have filed as an exhibit to the
registration statement for complete information.
We will furnish without charge to you, on written or oral request, a
copy of any or all of the documents incorporated by reference, including
exhibits to these documents. You should direct any requests for documents to
David L. Greenwood, Chief Financial Officer, Geron Corporation, 230 Constitution
Drive, Menlo Park, California 94025, telephone: (650) 473-7700.
18
================================================================================
$150,000,000
GERON CORPORATION
Debt Securities, Common Stock,
Preferred Stock and Warrants
PROSPECTUS
_________, 200__
You should rely only on the information contained or incorporated by reference
in this prospectus. We have not authorized anyone to provide you with different
information. You should not assume that the information contained or
incorporated by reference in this prospectus is accurate as of any date other
than the date of this prospectus. We are not making an offer of these securities
in any state where the offer is not permitted.
================================================================================
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses to be paid by us in connection with the distribution of
the securities being registered are as set forth in the following table. All
amounts shown are estimates except for the Securities and Exchange Commission
registration fee.
Securities and Exchange Commission Registration Fee $19,005
Nasdaq National Market Listing Fee $40,000
Legal Fees and Expenses $100,000
Accounting Fees and Expenses $100,000
Printing Expenses $50,000
Blue Sky Fees $5,000
Transfer Agent Fees and Expenses $5,000
Trustee Fees and Expenses $5,000
Miscellaneous $175,995
-----------
Total $500,000
===========
Item 15. Indemnification of Directors and Officers.
Section 145 of the DGCL allows for the indemnification of officers,
directors, and other corporate agents in terms sufficiently broad to indemnify
these persons for liabilities (including reimbursement for expenses incurred)
arising under the Securities Act. The registrant's certificate of incorporation
and bylaws provide for indemnification of the registrant's directors, officers,
employees and other agents to the extent and under the circumstances permitted
by the DGCL. The registrant has also entered into agreements with its directors
and officers that will require the registrant, among other things, to indemnify
them against liabilities that may arise by reason of their status or service as
directors to the fullest extent not prohibited by law. In addition, the
registrant carries director and officer liability insurance.
II-1
Item 16. Exhibits
1.1(1) Form of Underwriting Agreement.
4.1(2) Specimen Common Stock Certificate.
4.2(1) Specimen Preferred Stock Certificate.
4.3(3) Rights Agreement, dated as of July 20, 2001, by and
between Geron Corporation and U.S. Stock Transfer
Corporation, as Rights Agent, which includes the form of
Certification of Designations of the Series A Junior
Participating Preferred Stock of Geron Corporation as
Exhibit A, the form of Right Certificate as Exhibit B and
the Summary of Rights to Purchase Preferred Shares as
Exhibit C.
4.4(1) Form of Debt Security.
4.5 Form of Senior Indenture, between Geron Corporation and
one or more trustees to be named.
4.6 Form of Subordinated Indenture, between Geron Corporation
and one or more trustees to be named.
4.7(1) Form of Warrant.
4.8(1) Form of Warrant Agreement.
5.1 Opinion of Latham & Watkins LLP.
12.1 Statement regarding computation of ratios.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Latham & Watkins LLP (included in Exhibit
5.1).
24.1 Power of Attorney (included on the signature page
hereto).
25.1(1) Statement of Eligibility of Trustee on Form T-1.
-------------
(1) To be filed by amendment or by a report filed under the
Securities Exchange Act of 1934, as amended, and
incorporated herein by reference.
(2) Incorporated by reference to Exhibit 4.1 to Registration
Statement on Form S-1 filed on June 12, 1996.
(3) Incorporated by reference to Exhibit 4.1 to Current
Report on Form 8-K filed on July 23, 2001.
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering price may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
Provided, however, that subparagraphs (i) and (ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in the periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
this registration statement.
II-2
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(d) The undersigned Registrant hereby further undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance under Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4), or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(e) If and when applicable, the undersigned Registrant, hereby further
undertakes to file an application for the purpose of determining the eligibility
of the Trustee to act under subsection (a) of Section 310 of the Trust Indenture
Act in accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Act.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Menlo Park, State of California, on May 5, 2004.
GERON CORPORATION
By: /s/ David L. Greenwood
-----------------------------------------------
David L. Greenwood
Executive Vice President and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL BY THESE PERSONS PRESENT, that the persons whose signatures
appear below do hereby constitute and appoint Thomas B. Okarma, David L.
Greenwood, and William D. Stempel, or any of them, with full power of
substitution and full power to act without the other, his or her true and lawful
attorney-in-fact and agent to act for him or her in his or her name, place and
stead, in any and all capacities, to sign a registration statement on Form S-3
and any or all amendments thereto (including without limitation any
post-effective amendments thereto), and any registration statement for the same
offering that is to be effective under Rule 462(b) of the Securities Act, and to
file each of the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises in order to effectuate the same as fully, to all
intents and purposes, as they, he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Thomas B. Okarma Chief Executive Officer, President and Director May 5, 2004
---------------------------------------- (principal executive officer)
Thomas B. Okarma
Executive Vice President and Chief Financial May 5, 2004
/s/ David L. Greenwood Officer (principal financial and accounting
---------------------------------------- officer)
David L. Greenwood
/s/ Alexander E. Barkas Director May 5, 2004
----------------------------------------
Alexander E. Barkas
/s/ Edward V. Fritzky Director May 5, 2004
----------------------------------------
Edward V. Fritzky
/s/ Thomas D. Kiley Director May 5, 2004
----------------------------------------
Thomas D. Kiley
/s/ John P. Walker Director May 5, 2004
----------------------------------------
John P. Walker
/s/ Patrick J. Zenner Director May 5, 2004
----------------------------------------
Patrick J. Zenner
II-4
EXHIBIT INDEX
1.1(1) Form of Underwriting Agreement.
4.1(2) Specimen Common Stock Certificate.
4.2(1) Specimen Preferred Stock Certificate.
4.3(3) Rights Agreement, dated as of July 20, 2001, by and
between Geron Corporation and U.S. Stock Transfer
Corporation, as Rights Agent, which includes the form of
Certification of Designations of the Series A Junior
Participating Preferred Stock of Geron Corporation as
Exhibit A, the form of Right Certificate as Exhibit B and
the Summary of Rights to Purchase Preferred Shares as
Exhibit C.
4.4(1) Form of Debt Security.
4.5 Form of Senior Indenture, between Geron Corporation and
one or more trustees to be named.
4.6 Form of Subordinated Indenture, between Geron Corporation
and one or more trustees to be named.
4.7(1) Form of Warrant.
4.8(1) Form of Warrant Agreement.
5.1 Opinion of Latham & Watkins LLP.
12.1 Statement regarding computation of ratios.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Latham & Watkins LLP (included in Exhibit
5.1).
24.1 Power of Attorney (included on the signature page
hereto).
25.1(1) Statement of Eligibility of Trustee on Form T-1.
-------------
(1) To be filed by amendment or by a report filed under the
Securities Exchange Act of 1934, as amended, and
incorporated herein by reference.
(2) Incorporated by reference to Exhibit 4.1 to Registration
Statement on Form S-1 filed on June 12, 1996.
(3) Incorporated by reference to Exhibit 4.1 to Current
Report on Form 8-K filed on July 23, 2001.
II-5