EXHIBIT 10.1
LOAN AGREEMENT
This L
OAN
A
GREEMENT
(“Agreement”)
is entered into as of September 3, 2008 (the “Effective
Date”) by and between ViaGen, Inc., an Arizona corporation
(“ViaGen”), and Geron Corporation, a Delaware
corporation (“Geron”).
W HEREAS , Geron has agreed to lend to
ViaGen an aggregate amount of $1,500,000 (the “Loan”)
for the purpose of funding ViaGen’s investment in Exemplar
Genetics, LLC (“Exemplar”), subject to the terms and
conditions set forth herein; and
W HEREAS , ViaGen will issue a
convertible promissory note to Geron in such amount (the
“Note”).
N OW , T HEREFORE
, in consideration
of the mutual premises and covenants set forth herein, the parties
hereto agree as follows:
ARTICLE I
LOAN
Section 1.
Loan
. Subject to the
terms and conditions of this Agreement, ViaGen will borrow from
Geron and Geron will lend to ViaGen $1,500,000 (the “Loan
Proceeds”) pursuant to Section 2 below and the terms and
conditions of the Note.
Section 2. Purpose; Return
of Loan Proceeds . ViaGen acknowledges that Geron is providing
the Loan for the purpose of funding ViaGen’s investment in
Exemplar (the “Transaction”). ViaGen agrees that,
should the Transaction not close within 30 days from the date of
this Agreement, ViaGen will return the Loan Proceeds in accordance
with the terms of the Note.
ARTICLE II
REPRESENTATIONS AND
WARRANTIES OF GERON
Geron hereby
represents, warrants and covenants to ViaGen as follows:
Section 1.
Authority
. Geron has the
corporate power, capacity and authority to execute and deliver this
Agreement and any other certificate, agreement, document or other
instrument to be executed and delivered in connection with the
transactions contemplated by this Agreement and to perform
Geron’s obligations under this Agreement and to consummate
the transactions contemplated hereby and thereby. This Agreement
has been duly executed and delivered and constitutes the legal,
valid, and binding obligation of Geron, enforceable in accordance
with its terms.
Section 2.
Purchase for
Own Account . Geron represents that, with
the exception of the potential assignment of the Note to Exeter
Life Sciences, Inc., it is acquiring the Note and any equity
securities issuable upon conversion of such Note (collectively, the
“Securities”) solely for investment for Geron’s
own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that Geron has no
present intention of selling, granting any participation in, or
otherwise distributing the same. The acquisition by Geron of any of
the Securities shall constitute confirmation of the representation
that, at the date of such acquisition, Geron does not then have any
contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participations to such person or to any
third person, with respect to any of the Securities.
Section 3. Disclosure of
Information. Geron has received all the information it
considers necessary or appropriate for deciding whether to acquire
the Securities. Geron further represents that it has had an
opportunity to ask questions and receive answers from ViaGen
regarding the terms and conditions of the offering of the
Securities and the business, properties, prospects and financial
condition of ViaGen.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES OF VIAGEN
ViaGen hereby
represents, warrants and covenants to Geron as follows:
Section 1.
Organization,
Good Standing and Qualification . ViaGen is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Arizona and has all requisite corporate power and
authority to carry on its business as now conducted. ViaGen is duly
qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a
material adverse effect on its business or properties.
Section 2.
Authorization
. All corporate
actions on the part of ViaGen, its officers, directors and
shareholders necessary for the authorization, execution and
delivery of this Agreement, the performance of all obligations of
ViaGen hereunder and the authorization, issuance, sale and delivery
of the Notes have been taken. This Agreement and the Notes
constitute valid and legally binding obligations of ViaGen,
enforceable against ViaGen in accordance with their respective
terms, except (i) as limite
