<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------
FORM 8-K/A
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): March 9, 1999
REPLIGEN CORPORATION
--------------------
(Exact name of Registrant as specified in its charter)
117 FOURTH AVENUE, NEEDHAM, MASSACHUSETTS
-----------------------------------------
(Address of principal executive offices)
02494
-----
(Zip Code)
(781) 449-9560
--------------
Registrant's telephone number, including area code
NO CHANGE SINCE LAST REPORT
---------------------------
(Former name or address, if changed since last report)
DELAWARE 000-14656 04-2729386
-------- --------- ----------
(State or other jurisdiction of (Commission file number) (I.R.S. Employer
incorporation or organization) Identification No.)
<PAGE>
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On March 9, 1999, Repligen Corporation, Inc. (the "Company") acquired
all rights to certain patent applications relating to the use of secretin in the
prevention or treatment of autism. The rights were acquired from the joint
owners, Victoria A. Beck, a United States resident ("Beck"), and Autism Research
Institute, a not-for-profit organization incorporated in the State of California
("ARI") pursuant to a Patent Purchase Agreement by and among the Company, Beck
and ARI, dated as of March 9, 1999 (the "Purchase Agreement").
At the closing, the Company paid to Beck $150,000 in cash, and issued a
warrant to Beck exercisable for up to 350,000 shares of common stock of the
Company with an exercise price of $1.59 per share. The Company also issued
262,500 shares of common stock of the Company to ARI. In addition, the Company
has agreed to make certain milestone payments to Beck and ARI (a) upon the
Company's filing of a new drug application with the United States Food and Drug
Administration ("FDA") for a clinical indication covered by the intellectual
property rights transferred by the Purchase Agreement and (b) upon the approval
by the FDA of a product covered by the intellectual property rights transferred
to the Company pursuant to the Purchase Agreement. Finally, the Company has also
agreed to pay certain royalty payments to Beck and ARI in the event the Company
is able to derive sales and/or license revenues from the intellectual property
rights acquired from Beck and ARI pursuant to the Purchase Agreement. The source
of the funds used in this acquisition was the Company's working capital. The
purchase price and terms for the transaction were determined in arm's length
negotiations.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) Financial Statements of Business Acquired: None required.
(b) Pro Forma Financial Information: None required.
(c) EXHIBITS:
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
2.1 Patent Purchase Agreement by and among
Repligen Corporation, Victoria A. Beck and
Autism Research Institute, dated as of March
9, 1999 (with certain confidential
information deleted) (filed herewith).*
2.2 Common Stock Purchase Warrant issued to
Victoria A. Beck by Repligen Corporation,
dated as of March 9, 1999 (filed herewith).
</TABLE>
<PAGE>
<TABLE>
<S> <C>
2.3 Collateral Assignment of Patents by and
among Repligen Corporation, Victoria A. Beck
and Autism Research Institute, dated as of
March 9, 1999 ("Collateral Assignment")
(previously filed on Repligen's current
report on Form 8-K on March 24, 1999).*
</TABLE>
* The schedules and exhibits to the Purchase Agreement and the
Collateral Assignment are not being filed herewith. The Purchase Agreement filed
herewith and the Collateral Assignment (previously filed) contain a list briefly
identifying the contents of all schedules and exhibits to such documents. The
Company undertakes to furnish supplementally a copy of any omitted schedule and
exhibit (except for Schedule 3.09 of the Purchase Agreement which shall remain
confidential) to the Commission upon request. Pursuant to Item 601(b)(2) of
Regulation S-K, set forth below is a list of the omitted schedules and exhibits.
<TABLE>
<CAPTION>
Patent Purchase Agreement (Exhibit 2.1 Hereto)
----------------------------------------------
<S> <C>
Schedule 1.01 Patent Applications
Schedule 3.09 Confidential Disclosures
Exhibit A Patent Applications
Exhibit B Bill of Sale
Exhibit C Common Stock Purchase Warrant
Exhibit D Collateral Assignment
</TABLE>
<TABLE>
<CAPTION>
Collateral Assignment (Exhibit 2.3 Referenced Hereto)
-----------------------------------------------------
<S> <C>
Exhibit A Patent Applications
</TABLE>
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
REPLIGEN CORPORATION
By: /s/ Walter C. Herlihy
---------------------------
Walter C. Herlihy
President and Chief
Executive Officer
Date: June 15, 1999
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
2.1 Patent Purchase Agreement by and among Repligen
Corporation, Victoria A. Beck and Autism Research
Institute, dated as of March 9, 1999 (with certain
confidential information deleted) (filed herewith).
2.2 Common Stock Purchase Warrant issued to Victoria A.
Beck by Repligen Corporation, dated as of March 9,
1999 (filed herewith).
2.3 Collateral Assignment of Patents by and among
Repligen Corporation, Victoria A. Beck and Autism
Research Institute, dated as of March 9, 1999
(previously filed on Repligen's current report on
Form 8-K on March 24, 1999).
</TABLE>
<PAGE>
Exhibit 2.1
WHEREVER CONFIDENTIAL INFORMATION IS OMITTED HEREIN (SUCH OMISSIONS ARE
DENOTED BY AN ASTERISK), SUCH CONFIDENTIAL INFORMATION HAS BEEN SUBMITTED
SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT.
PATENT PURCHASE AGREEMENT
AGREEMENT dated as of March 9, 1999 between Repligen Corporation, a
Delaware corporation (including each of its successors, assigns and legal
representatives, "BUYER") and Victoria A. Beck, a United States resident of 11
McIntosh Lane, Bedford, NH 03110 ("BECK"), and Autism Research Institute, a
not-for-profit organization incorporated in the State of California ("ARI,"
together with Beck, the "SELLERS").
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01. DEFINITIONS. (a) The following terms, as used herein, have the
following meanings:
"AFFILIATE" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control with such other
Person.
"CONVEYANCE DOCUMENTS" means (i) assignments of the Patent Applications
in the Form attached hereto on EXHIBIT A and (ii) a Bill of Sale, in the form
attached hereto as EXHIBIT B, conveying the Intellectual Property Rights from
Sellers to Buyer.
"CLOSING DATE" means the date of the Closing.
"FDA" means the United States Food and Drug Administration, or the
successor thereto.
"GOVERNMENTAL AUTHORITY" means any government, court, regulatory or
administrative agency or commission, or other governmental authority, agency or
instrumentality, whether federal, state or local (domestic or foreign),
including, without limitation, the U.S. Patent and Trademark Office (the "PTO")
and the U.S. National Institutes of Health.
"INTELLECTUAL PROPERTY RIGHTS" means all intellectual property rights
of any nature held by either of the Sellers relating to the use of secretin in
the prevention or treatment of autism or other human disorders, except for the
Patent Applications and except for literary, motion picture, television or
theatrical rights and the like.
"LIEN" means any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind, except for the UM Assignment (as defined in Section
3.09).
"NDA" means a complete new drug application and all supplements thereto
filed with the FDA, including all documents, data and other information
concerning a Product covered by a
<PAGE>
-2-
Valid Claim which are necessary for, or included in, FDA approval to market such
Product as more fully defined in 21 C.F.R. ss.314.5 ET SEQ., as amended from
time to time.
"NET SALES" means the aggregate U.S. dollar equivalent of billings of
the Buyer for Products less the sum of the following: (a) discounts allowed in
amounts customary in the trade; (b) sales, tariff duties and/or use taxes
directly imposed on particular sales; (c) outbound transportation prepaid or
allowed; and (d) amounts allowed or credited on returns, and bad debts not to
exceed five percent (5%) of the total revenue of Buyer derived from sales of
Products.
"PATENT APPLICATIONS" means the United States Patent Application Serial
No. 60/047,049 (Provisional Application), filed May 19, 1997; United States
Patent Application Serial No. 09/080,631, filed May 18, 1998; Patent Cooperation
Treaty Application No. WO 98/52593, filed May 19, 1998; United States Patent
Application Serial No. 60/088,575 (Provisional Application), filed June 9, 1998;
United States Patent Applications Serial No. 09/229,208, filed January 13, 1999,
and any and all related patents, patent applications and invention disclosures,
any and all related continuation, continuation-in-part, and divisional
applications, and any patents issuing therefrom, and any extensions, reissue,
re-examinations, renewals, substitutions related to any of the foregoing
(including without limitation remedies against infringements thereof and rights
of protection of an interest therein under the laws of all jurisdictions) and
any and all foreign counterparts of any of the foregoing, including, but not
limited to, each of the items listed on SCHEDULE 1.01 hereto.
"PERSON" means an individual, corporation, partnership, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"PRODUCT" shall mean any product which (a) is covered in whole or in
part by a Valid Claim; or (b) is manufactured by using a process or is employed
to practice a process or method which is covered in whole or in part by a Valid
Claim.
"PURCHASED ASSETS" means the Patent Applications and the Intellectual
Property Rights.
"REGISTRABLE SHARES" shall mean the Beck Warrant Shares and the ARI
Shares.
"VALID CLAIM" means a claim included in the Patent Applications which
has not been on file for more than five years or which is included in an
unexpired United States or foreign patent which issues from one or more of the
Patent Applications and which shall not have been withdrawn, canceled or
disclaimed, nor held invalid by a court of competent jurisdiction in an
unappealed or unappealable decision.
ARTICLE II
PURCHASE AND SALE
2.01. PURCHASE AND SALE. Upon the terms and subject to the conditions
of this Agreement, Buyer agrees to purchase from each Seller, and each Seller
agrees to sell, transfer,
<PAGE>
-3-
assign and deliver, or cause to be sold, transferred, assigned and delivered, to
Buyer at Closing, free and clear of all Liens, all right, title and interest in
and throughout the United States of America, its territories and all foreign
countries, in and to the Purchased Assets.
2.02. PURCHASE PRICE. The purchase price (the "PURCHASE PRICE") for the
Purchased Assets is as set forth below and shall be paid as follows:
(a) Buyer shall deliver to BECK at the Closing (i) One Hundred Fifty
Thousand Dollars ($150,000) by check or wire transfer and (ii) a warrant to
purchase up to Three Hundred Fifty Thousand (350,000) shares of common stock of
Buyer (the "BECK WARRANT"), subject to the obligations of Buyer under Sections
6.03 and 6.05 herein, such Beck Warrant substantially in the form attached
hereto as EXHIBIT C;
(b) Buyer shall deliver to ARI at the Closing two hundred sixty-two
thousand five hundred (262,500) shares of common stock of Buyer (the "ARI
SHARES"), subject to the obligations of Buyer in Sections 6.04, 6.05 and 6.06
hereto.
(c) Buyer shall pay the following milestone payments (the "Milestone
Payments") and royalty payments (the "Royalty Payments"). Buyer shall pay *
percent (*%) to Beck and * percent (*%) to ARI of all such Milestone Payments
and Royalty Payments, respectively, in accordance with the terms herein:
<TABLE>
<CAPTION>
(i)
MILESTONE
---------
MILESTONE PAYMENT AMOUNT
--------- --------------
<S> <C>
Filing of an NDA with the FDA (or foreign $200,000
equivalent) for a clinical indication
covered by a Valid Claim.
Approval by the FDA (or foreign $500,000
equivalent) of the marketing of a Product
addressing clinical indication covered by
a Valid Claim ("FDA APPROVAL");
------------
</TABLE>
PROVIDED THAT:
(x) each such Milestone Payment shall be made by Buyer to Sellers
within sixty (60) days after the occurrence of such milestone and shall be made
only one time based on the first time Buyer achieves each such milestone
regardless of how many times such milestones are achieved, and no payment shall
be owed for a milestone which is not reached; and
<PAGE>
-4-
(y) the $500,000 Milestone Payment for FDA Approval shall be fully
creditable against future payments owed by Buyer to Sellers under Sections
2.02(c)(ii) and 2.02(d) of this Agreement.
(ii) Royalty Payments shall be made to Sellers in an amount
equal to * percent (*%) of Net Sales of the Products within forty-five (45) days
after the end of the fiscal quarter in which the Company actually receives the
proceeds therefrom (subject to the limit on bad debts set forth in the
definition of Net Sales). If Buyer must acquire a license from any third party
in order to market the Product, royalties will be reduced by * percent (*%) of
the amount of any license fees paid to such third party, provided that royalties
payable by Buyer to the Sellers will never be reduced below * percent (*%) of
Net Sales.
(d) If Buyer licenses all or part of the Purchased Assets, Buyer shall
pay Beck and ARI, * percent (*%) and * percent (*%), respectively, of the
revenue received by Buyer from its licensee(s), within forty-five (45) days
after the end of the fiscal quarter in which the Buyer actually receives such
revenue, as license payments, milestone payments or royalties, but not as
research and development payments or payments for Products sold directly by
Buyer as to which Royalty Payments are required to be made under Section
2.02(c)(ii) above.
(e) Buyer will arrange for Beck to receive tax planning advice from
Arthur Andersen, independent accountants, for a period of three (3) years after
the Closing Date, and will pay up to five thousand dollars ($5,000) per year of
the cost of such advice.
(f) From and after the date of FDA Approval within the United States,
Buyer shall pay to the Sellers a minimum annual royalty of $500,000 of which *
percent (*%) shall be paid to Beck and * percent (*%) shall be paid to ARI. Such
minimum annual royalty shall be payable in four equal installments within 45
days within the end of each fiscal quarter of Buyer. Minimum annual royalty
installments in each such period shall be credited against earned royalties for
that period otherwise payable to Sellers in accordance with Section 2.02(c)(ii)
and 2.02(d) above. The Buyer's obligation to pay minimum royalties under this
Section 2.02(f) shall be suspended during any period when the FDA shall have
suspended or revoked Buyer's right to market secretin within the United States
for use in the treatment of autism; provided that Buyer shall continue to pay
all earned royalties during such period or periods.
2.03. CLOSING. The closing (the "CLOSING") of the purchase and sale
of the Purchased Assets hereunder shall take place at the offices of McLane,
Graf, Raulerson & Middleton Professional Association, 900 Elm Street,
Manchester, New Hampshire simultaneously with the execution of this Agreement.
At the Closing,
(a) Buyer shall pay the Purchase Price to Sellers in accordance with
the terms of Sections 2.02(a) and 2.02(b) herein.
(b) Buyer and each Seller shall execute and deliver the Conveyance
Documents to which each is a party.
<PAGE>
-5-
(c) Buyer shall execute and deliver to the Sellers a Collateral
Assignment in the form attached hereto as EXHIBIT D (the "Collateral
Assignment"), in recordable form (together with such powers of attorney as may
be necessary to enable the Sellers to effect the assignment described in the
Collateral Assignment) collaterally assigning the Patent Applications to the
Sellers: (i) to secure Buyer's obligations set forth in Sections 2.02(f) and
6.01 of this Agreement, and (ii) in the event Buyer ceases to conduct business,
is liquidated, is dissolved or initiates or is subjected to any proceedings for
relief in bankruptcy or other insolvency laws and such proceedings have not been
vacated or set aside within one hundred and twenty (120) days from the date of
commencement thereof.
(d) Seller and Buyer shall also execute and deliver all such other
instruments, documents and certificates as may be reasonably requested by the
other party that are necessary for the consummation at the Closing of the
transactions contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
Except as otherwise provided herein, the Sellers hereby severally and
not jointly represent and warrant to Buyer that:
3.01. CORPORATE EXISTENCE AND POWER OF ARI. ARI represents and warrants
to Buyer that ARI is a not-for-profit corporation duly incorporated, validly
existing and in good standing under the laws of the State of California, and has
all corporate powers and all licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
3.02. CORPORATE AND APPROPRIATE AUTHORIZATION. ARI represents and
warrants to Buyer that the execution, delivery and performance by ARI of this
Agreement and the Conveyance Documents, and the consummation by ARI of the
transactions contemplated hereby and thereby, are within ARI's corporate powers
and have been duly authorized by all necessary corporate action on the part of
ARI. Each Seller represents and warrants to Buyer that this Agreement and the
Conveyance Documents have been duly executed and delivered and constitute valid
and binding agreements of such Seller.
3.03. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by Sellers of this Agreement and each of the Conveyance Documents do
not require any notice to, action or consent by or in respect of, or filing
with, any Governmental Authority (other than the filing of patent assignments
with the PTO and any other applicable Governmental Authority).
3.04. NON-CONTRAVENTION OF ARI. ARI represents and warrants to Buyer
that the execution, delivery and performance by ARI of this Agreement and each
of the Conveyance Documents does not and will not (i) contravene or conflict
with the corporate charter or bylaws of ARI; (ii) contravene or conflict with or
constitute a violation of any provision of any law or regulation binding upon or
applicable to ARI or the Purchased Assets which contravention, conflict or
violation would have a material adverse effect on the Purchased Assets or their
<PAGE>
-6-
intended use; (iii) contravene or conflict with or constitute a violation of any
judgment, injunction, order or decree binding upon or applicable to either of
ARI or the Purchased Assets which contravention, conflict or violation would
have a material adverse effect on the Purchased Assets or their intended use; or
(iv) result in the creation or imposition of any Lien on any Purchased Asset.
3.05. NON-CONTRAVENTION OF BECK. Beck represents and warrants to Buyer
that the execution, delivery and performance by Beck of this Agreement and each
of the Conveyance Documents does not and will not (i) contravene or conflict
with or constitute a violation of any provision of any law or regulation binding
upon or applicable to Beck or the Purchased Assets which contravention, conflict
or violation would have a material adverse effect on the Purchased Assets or
their intended use; (ii) contravene or conflict with or constitute a violation
of any judgment, injunction, order or decree binding upon or applicable to
either of Beck or the Purchased Assets which contravention, conflict or
violation would have a material adverse effect on the Purchased Assets or their
intended use; or (iii) result in the creation or imposition of any Lien on any
Purchased Asset.
3.06. TITLE TO PURCHASED ASSETS. Upon consummation of the transactions
contemplated hereby, Buyer will have acquired good and marketable title in and
to each of the Purchased Assets, free and clear of all Liens.
3.07. [INTENTIONALLY OMITTED.]
3.08. LITIGATION. There is no action, suit, investigation or proceeding
(or any basis therefor), of which either Seller has received written notice,
pending or, to the knowledge of either Seller, threatened, before any
governmental authority or arbitrator that has or could materially affect any
Purchased Asset. Sellers have not received written notice of any claims made by
any Person with respect to, or any actions, suits or other proceedings relating
to, any Purchased Assets which would have a material adverse effect on the
proposed or intended use of the Purchased Assets.
3.09. INTELLECTUAL PROPERTY. (a) SCHEDULE 1.01 sets forth a true and
complete list of the Patent Applications specifying as to each, as applicable
(i) the owner of such Patent Application; and (ii) the jurisdictions by or in
which each Patent Application has been filed, including the respective patent or
application numbers. There are no licenses, sublicenses or other agreements
relating to any Patent Application except as set forth in the Patent Assignment
Agreement dated October 19, 1998 between Beck and the University of Maryland
("UM") which sets forth the rights of UM with respect to the Diagnostic Method
(the "UM ASSIGNMENT"), a true and complete copy of which has been provided to
Buyer.
(b) Sellers have clear title to the Patent Applications (to the extent
they exist on the date hereof). To their knowledge, Sellers and each inventor
listed in the Patent Applications and the attorneys of record thereto have
complied with the PTO duty of candor and good faith in dealing with the PTO,
including the duty to disclose to the PTO all information known to be material
to the patentability of each of the Patent Applications. All assignments from
each inventor to, as the case may be, Sellers or to a predecessor in interest to
Sellers, have been
<PAGE>
-7-
executed and recorded with the PTO for each of the Patent Applications. To the
knowledge of either Seller, without inquiry or investigation, there are no
pending U.S. or foreign patent applications which, if issued, would limit or
prohibit the ability of Sellers to make, have made, use, sell, or offer for sale
the claimed subject matter of the Patent Applications. To the knowledge of the
Sellers, without inquiry or investigation, and except to the extent disclosed on
Schedule 3.09(b), there is no pending or threatened action, suit, proceeding or
claim by others that either Seller is infringing or would infringe any patent of
others by making, having made, using, selling, or offering for sale the claimed
subject matter of the Patent Applications; and the Patent Applications if
accepted by the PTO as filed, would not be owned by third parties.
(c) Beck does not have any reason to believe that UM does not intend to
comply with its obligations pursuant to the UM Assignment. Neither Seller has
granted any licenses or other rights and neither Seller has obligations to grant
licenses or other rights with respect to the Patent Applications, and, except
for the UM Assignment and the Joint Use Agreement between the Sellers dated as
of February 12, 1999 (a copy of which has been delivered to the Buyer), there
are no other contracts, arrangements, understandings or other documents relating
to any Patent Application.
(d) There was no public disclosure of the invention, or first sale of a
product, relating to any of the Patent Applications (whether written, oral or
electronic) prior to May 19, 1997, known to either Seller (without inquiry or
investigation) and willfully excluded from Schedule 3.09(b).
(e) Notwithstanding anything in this Agreement or the Conveyance
Documents to the contrary, except as expressly set forth in this Section 3.09,
the Sellers make no representation or warranty as to the patentability of any of
the Intellectual Property Rights or the validity or enforceability of any United
States or foreign patents issuing thereon, or as to the success of any effort to
obtain FDA approval.
3.10. FINDERS' FEES. There is no investment banker, broker, finder or
other intermediary which has been retained by or is authorized to act on behalf
of either Seller who might be entitled to any fee or commission from Buyer or
any of its Affiliates upon consummation of the transactions contemplated by this
Agreement.
3.11. OTHER INFORMATION. Neither this Agreement nor any of the exhibits
and schedules appended hereto contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
contained therein not misleading.
3.12. INVESTMENT. ARI represents and warrants to Buyer that ARI is
acquiring the ARI Shares, and Beck represents and warrants to Buyer that Beck is
acquiring the Beck Warrant (and the Beck Warrant Shares upon exercise thereof)
(collectively, with the ARI Shares, the "SECURITIES") for such party's
respective account, for investment purposes only, and not with a view to the
sale, assignment, transfer or other distribution thereof, other than in
compliance with the registration requirements of the Securities Act of 1933, as
amended (the "Securities Act"). Each Seller recognizes that the Common Stock of
the Company, including the Securities, has not
<PAGE>
-8-
been registered under the Securities Act, and such Seller agrees that it will
not sell, assign, transfer, or otherwise distribute the Securities in violation
of the Securities Act.
3.13. INVESTIGATION. Each Seller represents and warrants to Buyer that
such Seller is able to bear the economic risk of loss of its investment in the
Securities of Buyer, has been granted the opportunity to make a thorough
investigation of the affairs of Buyer, and has availed itself of such
opportunity either directly or through its authorized representatives.
3.14. RELIANCE BY BECK. Beck represents and warrants to Buyer that Beck
has been advised that the Beck Warrant (and the Beck Warrant Shares upon
exercise thereof) has not been and is not being registered under the Securities
Act or under the "blue sky" laws of any jurisdiction and that the Buyer, in
issuing the Beck Warrant (and the Beck Warrant Shares upon exercise thereof), is
relying upon, among other things, the representations and warranties of Beck
contained in this Section 3.14 in concluding that such issuance is a "private
offering" and does not require compliance with the registration provisions of
the Securities Act.
3.15 RELIANCE BY ARI. ARI represents and warrants to Buyer that ARI has
been advised that the ARI Shares have not been and are not being registered
under the Securities Act or under the "blue sky" laws of any jurisdiction and
that the Buyer, in issuing the ARI Shares, is relying upon, among other things,
the representations and warranties of ARI contained in this Section 3.15 in
concluding that such issuance is a "private offering" and does not require
compliance with the registration provisions of the Securities Act.
3.16 LEGENDS. Beck understands and agrees that each certificate
representing the Beck Warrant shall bear the legend set forth on the Beck
Warrant, and the Beck Warrant Shares upon exercise thereof shall bear the legend
substantially in the form set forth below; ARI understands and agrees that each
certificate representing the ARI Shares delivered to ARI hereunder shall bear
the legend substantially as follows:
"The shares represented hereby have not been registered under
the Securities Act of 1933, as amended, and may not be sold or
transferred unless the registration provisions of said Act
have been complied with or unless in the opinion of counsel
satisfactory to the Company both as to opinion and counsel
compliance with such provisions is not required."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to the Sellers that:
4.01. ORGANIZATION AND EXISTENCE. Buyer is a company duly incorporated,
validly existing and in good standing under the laws of Delaware and has all
applicable powers and all
<PAGE>
-9-
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
4.02. CORPORATE AUTHORIZATION. The execution, delivery and performance
by Buyer of this Agreement and each of the Conveyance Documents to which it is a
party and the consummation by Buyer of the transactions contemplated hereby and
thereby are within the powers of Buyer and have been duly authorized by all
necessary action on the part of Buyer. This Agreement has been duly executed and
delivered by the Buyer and constitutes a valid and binding agreement of Buyer.
The issuance, sale and delivery of the Beck Warrant and the ARI Shares have been
duly authorized by all necessary action on the part of Buyer, and when issued,
sold and delivered in accordance with the terms hereof, will be duly and validly
issued and outstanding, fully paid and nonassessable, and free from all
preemptive or similar rights therein. The issuance, sale and delivery of the
Beck Warrant Shares (as defined below) have been duly authorized by all
necessary action on the part of Buyer, and have been duly reserved for issuance
upon exercise of the Beck Warrant. When issued, sold and delivered in accordance
with the Beck Warrant, the Beck Warrant Shares will be validly issued and
outstanding, fully paid and nonassessable, and free from all preemptive or
similar rights therein.
4.03. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by Buyer of this Agreement and each of the Conveyance Documents to
which it is a party does not require any action by or in respect of, or filing
with, any Governmental Authority (other than the filing of patent assignments
with the PTO).
4.04. NON-CONTRAVENTION. The execution, delivery and performance by
Buyer of this Agreement and each of the Conveyance Documents to which it is a
party does not and will not (i) contravene or conflict with the corporate
charter or by-laws of Buyer, (ii) contravene or conflict with or constitute a
violation of any provision of any law or regulation binding upon or applicable
to Buyer; or (iii) contravene or conflict with or constitute a violation of any
judgment, injunction, order or decree binding upon or applicable to Buyer.
4.05. FINDERS' FEES. There is no investment banker, broker, finder or
other intermediary that has been retained by or is authorized to act on behalf
of Buyer who might be entitled to any fee or commission from Buyer upon
consummation of the transactions contemplated by this Agreement.
4.06. LITIGATION. There is no action, suit, investigation or proceeding
pending against, or to the knowledge of Buyer threatened against or affecting,
Buyer before any court or arbitrator or any governmental body, agency or
official which in any matter challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated hereby or would have a material
adverse effect on Buyer's ability to perform its obligations under this
Agreement.
4.07 SEC DOCUMENTS. Buyer has furnished or made available to each
Seller or such Seller's counsel true and complete copies of Buyer's Annual
Report on Form 10-K for the fiscal years ending March 31, 1996, 1997 and 1998,
as amended; Buyer's Quarterly Reports on Form 10-Q for the fiscal quarters
ending June 30, September 30 and December 31, 1996, 1997 and 1998, respectively,
and its Proxy Statement relating to its Annual Meeting of Stockholders for
<PAGE>
-10-
the years ending March 31, 1996, 1997 and 1998 (collectively, the "SEC
DOCUMENTS"). As of their respective filing dates, each of the SEC Documents
complied in all material respects with the requirements of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and the rules and
regulations of the Securities and Exchange Commission ("SEC") promulgated
thereunder.
ARTICLE V
COVENANTS OF SELLERS
5.01. CONFIDENTIALITY. Each Seller will hold, and will use reasonable
commercial efforts to cause its officers, directors, employees, accountants,
counsel, consultants, advisors and agents to hold, in confidence, unless
compelled to disclose by judicial or administrative process or by other
requirements of law, all confidential documents and information concerning Buyer
or the Purchased Assets, which information shall be deemed to be confidential
only if identified in writing as confidential or, if delivered orally, confirmed
in writing as confidential within 30 days after delivery.
5.02. ATTORNEY OF RECORD. As promptly as practicable after the Closing,
but in any event within 10 days after the Closing, Sellers shall take all
necessary actions to name Peter Fasse, Esq., of Fish and Richardson, as attorney
of record for the Patent Applications.
ARTICLE VI
COVENANTS OF BUYER
6.01. CERTAIN OBLIGATIONS OF BUYER. Buyer shall use best efforts in a
timely manner:
(a) Consistent with FDA rules and regulations, to carry out
clinical testing of secretin for use in the treatment of autism;
(b) To secure FDA Approval in the United States of the use of
secretin in the treatment of autism;
(c) To obtain reasonable patent protection for the use of
secretin for the treatment of autism;
(d) To itself or through third parties develop manufacture,
market, sell and distribute secretin for use in the treatment of
autism.
6.02. CERTAIN OBLIGATIONS OF BUYER TO DEVELOP THE USE OF SECRETIN. To
the extent that Buyer in its good faith judgment deems it commercially
reasonable to do so, Buyer shall use commercially reasonable efforts to
investigate the feasibility of using secretin for use in
<PAGE>
-11-
the treatment of the behavioral/neurological conditions (other than autism)
referred to in the Patent Applications.
6.03. REGISTRATION OF BECK WARRANT SHARES. Buyer will use best efforts
as promptly as practicable after full exercise of the Beck Warrant to file a
registration statement with the SEC to register the shares purchased upon
exercise of the Beck Warrant (the "BECK WARRANT SHARES") for resale in
accordance with applicable federal securities laws, and will use commercially
reasonable efforts to maintain the effectiveness of such registration statement
until the earlier of (i) the expiration of the one year holding period relating
to the Beck Warrant Shares under Rule 144 of the Securities Act, or (ii) the
date all such Beck Warrant Shares have been sold by Beck; provided that in the
event that Buyer has not remained current with its filing of quarterly, annual
or other reports with the SEC as required by the Exchange Act and/or Rule
144(c)(1) of the Securities Act, Buyer shall use commercially reasonably efforts
to maintain the effectiveness of such registration statement until the
expiration of a two year holding period relating to the Beck Warrant Shares
under Rule 144 of the Securities Act.
6.04. REGISTRATION OF ARI SHARES. Buyer will use best efforts to file a
registration statement with the SEC to register the ARI Shares for resale in
accordance with applicable federal securities laws within thirty (30) days after
the Closing Date, and will use commercially reasonable efforts to maintain the
effectiveness of such registration statement until the earlier of (i) the date
one year following the Closing Date, (ii) the date all such ARI shares have been
sold by ARI; provided that in the event that Buyer has not remained current with
its filing of quarterly, annual or other reports with the SEC as required by the
Exchange Act and/or Rule 144(c)(1) of the Securities Act, Buyer shall use
commercially reasonably efforts to maintain the effectiveness of such
registration statement for two years following the Closing Date.
6.05. GENERAL OBLIGATIONS WITH RESPECT TO THE REGISTRATION OF THE
REGISTRABLE SHARES.
(a) EFFECTIVENESS; SUSPENSION.
(i) From time to time during the applicable effectiveness
period for each registration statement covering the Registrable Shares, Buyer
will amend or supplement the applicable registration statement and the
prospectus contained therein as and to the extent necessary to comply with the
federal securities law and any applicable state securities or regulation,
subject to the following limitations and qualifications.
(ii) Buyer will notify the transfer agent of Buyer (A) when a
prospectus or any prospectus supplement or amendment covering the Registrable
Shares has been filed and when the same becomes effective, (B) of any request by
the SEC or any other federal or state Governmental Authority during the
effectiveness period for amendments or supplements to the applicable
registration statement covering the Registrable Shares, (C) of the issuance by
the SEC or any other Governmental Authority of any stop order suspending the
effectiveness of the applicable registration statement covering the Registrable
Shares, or the initiation of any proceedings for that purpose, (D) of the
receipt by Buyer of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, or
<PAGE>
-12-
(E) of the happening of any event which makes any statement made in the
applicable registration statement covering the Registrable Shares, or related
prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or which requires the making of any
changes in the applicable registration statement covering the Registrable
Shares, or prospectus so that it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading.
(iii) Notwithstanding any other provision of this Agreement,
Buyer will have the right at any time upon the happening of any event of the
kind described in clauses B-E in paragraph (ii) above, or upon the good faith
judgment of Buyer's Board of Directors after consultation with counsel that it
is advisable to suspend the use of the prospectus covering the Registrable
Shares, because the sale of such Registrable Shares, pursuant to such prospectus
would be reasonably likely to cause a violation of the Securities Act or the
Exchange Act and result in potential liability to Buyer, and upon written notice
to each holder of Registrable Shares registered thereunder (a "Holder"), to
require that such Holder suspend further open market offers and sales of
Registrable Shares for a reasonable period of time, which period shall not
exceed forty-five (45) days for each such event or an aggregate of ninety (90)
days during the effectiveness period with respect to the applicable registration
statement (the "Suspension Right"). In the event Buyer exercises the Suspension
Right, such suspension will continue for the period of time reasonably necessary
for disclosure to occur at a time that is not detrimental to Buyer and its
stockholders as determined in good faith by Buyer after consultation with
counsel or until copies of a supplemental or amended prospectus becomes
effective. Buyer will promptly give each Holder notice of any such suspension
and the termination of such suspension and will use all reasonable efforts to
minimize the length of the suspension.
(b) EXPENSES. Buyer shall pay all of the expenses incurred in
connection with filing each registration statement with respect to the
Registrable Shares but shall not be liable for (i) any discounts or commissions
to any broker or underwriter attributable to the shares being registered and
similar charges, (ii) legal fees and disbursements of counsel for the selling
holders, or (ii) any stock transfer taxes incurred in respect of such registered
shares.
(c) NOTICE AND APPROVAL. Other than sales made within ten (10) business
days of the effectiveness of the applicable registration statement, if any
Holder shall propose to sell any Registrable Shares pursuant to its applicable
registration statement, it shall notify Buyer of its intent to do so (including
the proposed manner and timing of all sales) at least two full trading days
prior to such sale, and such notice, unless otherwise specified in such notice,
shall be deemed to constitute a representation that any information previously
supplied to Buyer by such Holder expressly for inclusion in the applicable
registration statement (as the same may have been superseded by subsequent such
information) is accurate as of the date of such notice. At any time within a two
trading-day period, Buyer may refuse to permit the Holder to resell any
Registrable Shares pursuant to the applicable registration statement based on
the happening of any event of the kind described in clauses B-E of Section
6.05(a)(ii) above; PROVIDED that in order to exercise this right, Buyer must
deliver a certificate in writing to the Holder to the effect that a delay in
such sale is necessary because a sale pursuant to the applicable registration
statement in its then-current form without the addition of material, non-public
information about
<PAGE>
-13-
Buyer, or because of a stop order suspending the effectiveness of the applicable
registration statement, could constitute a violation of the federal securities
laws.
(d) DELIVERY OF PROSPECTUS. For any offer or sale of any of the
Registrable Shares by a Holder in a transaction that is not exempt under the
Securities Act, the Holder, in addition to complying with any other federal
securities laws, shall deliver a copy of the final prospectus (or amendment of
or supplement to such prospectus) of Buyer covering the Registrable Shares in
the form furnished to the Holder by Buyer to the purchaser of any of the
Registrable Shares on or before the settlement date for the purchase of such
Registrable Shares.
(e) COPIES OF PROSPECTUSES. Subject to the provisions of this Section,
when a Holder is entitled to sell and gives notice of its intent to sell
Registrable Shares pursuant to the applicable registration statement, Buyer
shall, within two trading days following the request, furnish to such Holder a
reasonable number of copies of any prospectus, or a supplement to or an
amendment of such prospectus, in conformity with the requirements of the
Securities Act, as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Shares, such prospectus shall not as of the date
of delivery to the Holder include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing.
6.06. SALE OF ARI SHARES. During the first ninety (90) days after the
Closing Date, Buyer will attempt to locate a suitable purchaser for up to one
hundred thousand (100,000) of the ARI Shares. If, at the end of such ninety (90)
day period, ARI has been unable to sell at least one hundred thousand (100,000)
of the ARI Shares at a price equal to or greater than the exercise price of the
Beck Warrant, ARI shall be entitled to cause Buyer to repurchase a number of ARI
Shares equal to the difference between one hundred thousand (100,000) and the
number of shares which ARI has been able to sell during such ninety (90) day
period; PROVIDED THAT if Buyer presents the opportunity to ARI to sell the ARI
Shares in accordance with the terms herein, and ARI refuses to consummate such
sale for any reason (other than its good faith belief, upon advice of counsel,
that effecting such sale would violate the Securities Act), Buyer shall only
have the obligation to purchase the number of ARI Shares equal to one hundred
thousand (100,000) less the sum of the number of ARI Shares which ARI has sold
and has refused to sell pursuant to the terms herein. The purchase price for
such repurchase by Buyer of the ARI Shares shall be the exercise price per share
of the Beck Warrant. Notwithstanding anything to the contrary herein, in order
to exercise its rights under this Section 6.06, ARI shall notify Buyer in
writing no later than ten (10) days after the expiration of the ninety (90) day
period, of the number of ARI Shares that ARI would like Buyer to repurchase.
Within thirty (30) days after receipt of such notice, Buyer shall repurchase the
ARI Shares for cash in accordance with the terms herein. ARI's rights herein to
cause Buyer to repurchase the ARI Shares, to the extent unexercised, shall
terminate forever at the end of the ten (10) day period following the ninety
(90) day period referenced above.
6.07. NOTICE OF FDA APPROVAL. Buyer shall provide Sellers with timely
notice of the completion of any Milestone referred to under Section 2.02 hereof.
<PAGE>
-14-
ARTICLE VII
COVENANTS OF BUYER AND SELLERS
7.01. EFFORTS; FURTHER ASSURANCES. (a) Subject to the terms and
conditions of this Agreement, each party will use its commercially reasonable
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary under applicable laws and regulations to consummate
the transactions contemplated by this Agreement; Sellers and Buyer agree to
execute and deliver such other documents, certificates, agreements and other
writings and to take such other actions as may be necessary in order to
consummate or implement expeditiously the transactions contemplated by this
Agreement and to vest in Buyer good and marketable title to the Purchased
Assets.
(b) Without limiting the foregoing, each Seller further agrees for
itself and its successors and assigns to execute upon request any other lawful
documents and likewise to perform any other lawful acts which may be necessary
or desirable to secure fully for Buyer all right, title and interest in and to
each of the Purchased Assets, including, but not limited to, the execution of
substitution, reissue, divisional or continuation patent applications; and
preliminary or other statement or the giving of testimony in any interference or
other proceeding in which the Purchased Assets or any applications or patent
directed thereto or derived therefrom may be involved. Each Seller agrees (i) to
provide such reasonable assistance to Buyer as Buyer may request in connection
with the prosecution of the Patent Applications and any action against third
parties claiming infringement of any of the Purchased Assets and (ii) never to
contest or assist any third party in contesting, the validity or enforceability
of any Valid Claim.
(c) Each Seller hereby constitutes and appoints, effective as of the
Closing upon payment of the Purchase Price, Buyer and its successors and assigns
as the true and lawful attorney of such Seller with full power of substitution
in the name of Buyer or in the name of such Seller, but for the benefit of Buyer
(i) to collect for the account of Buyer any items of Purchased Assets and (ii)
to prosecute all proceedings which Buyer may in its sole discretion deem proper
in order to assert or enforce any right, title or interest in, to or under the
Purchased Assets, and to defend or compromise any and all actions, suits or
proceedings in respect of the Purchased Assets, whether based on a claim arising
prior to or after the Closing Date. Buyer shall be entitled to retain for its
account any amounts collected pursuant to the foregoing powers, including any
amounts payable as interest in respect thereof.
(d) Subject to Section 10.03 hereof, Buyer shall pay all expenses
incurred by Sellers from and after the Closing Date in complying with this
Section 7.01 provided that such expenses are incurred at the request of Buyer or
approved in advance by Buyer (which approval shall not be unreasonably withheld
or delayed).
7.02. CONFIDENTIALITY. Buyer and Sellers agree not to disclose the
terms of any agreement between them or directly or indirectly identify the other
parties in a press release, news letter, electronic communication, shareholder
letter or other public disclosure without prior permission except to the extent
that the information is in the public domain or the disclosure is
<PAGE>
-15-
required by law. All medical information including names, medical records,
status, treatments or outcomes of treatments concerning any relatives of any
party to the agreement is confidential unless the information is already in the
public domain. Notwithstanding the foregoing, the parties acknowledge that Buyer
may issue a press release announcing the transactions contemplated by this
Agreement after execution of this Agreement. The form and timing of such press
release shall be discussed with the Sellers prior to its release and any direct
or indirect reference to the Sellers or the use of the consideration payable
hereunder shall be subject to their prior approval.
7.03 ROYALTY MATTERS.
(a) At the time of payment of the royalties provided for in Section 2.4
hereof, Buyer shall deliver to Sellers a written report showing its computation
of its Net Sales and of the royalties due under this Agreement upon such Net
Sales by Buyer. All revenues shall be segmented in each such report on a
country-by-country basis, including the rates of exchange used to convert such
royalties to United States dollars from the currency in which such sales were
made. For the purposes hereof, the rates of exchange to be used for converting
royalties hereunder to United States dollars shall be those in effect for the
purchase of dollars at New York, New York on the day five business days prior to
the date on which payment is due.
(b) Where royalties are due the Sellers hereunder for sales of Products
in a country where, by reason of currency regulations or taxes of any kind, it
is impossible or illegal for Buyer to transfer royalty payments to the Sellers
for Net Sales in that country, such royalties shall be deposited in whatever
currency is allowable by the person or entity not able to make the transfer for
the benefit or credit of the Sellers in an accredited bank in that country that
is acceptable to the Sellers.
(c) Buyer shall keep full, true and accurate books of accounts and
other records containing all information and data which may be necessary to
ascertain and verify the royalties payable hereunder. During the term of this
Agreement and for a period of one year following its termination, Sellers shall
have the right from time to time (not to exceed twice during each calendar year)
to inspect, or have an agent, accountant or other representative inspect, such
books, records and supporting data.
ARTICLE VIII
SURVIVAL; INDEMNIFICATION
8.01. SURVIVAL. The representations and warranties of the parties
hereto contained in this Agreement or in any certificate or other writing
delivered pursuant hereto or in connection herewith shall survive the Closing
for a period of two years except to the extent limited by Section 8.03; PROVIDED
that the agreements in Articles II through VIII shall survive the Closing until
the expiration of this Agreement pursuant to Article IX.
8.02. INDEMNIFICATION. (a) Subject to the limitations set forth in
Section 8.03, Sellers hereby severally and not jointly indemnify Buyer and
Buyer's Affiliates against and agree to
<PAGE>
-16-
hold each of them harmless from any and all damage, loss, liability and expense
(including, without limitation, reasonable expenses of investigation and
reasonable attorneys' fees and expenses in connection with any action, suit or
proceeding) (collectively, "LOSS") incurred or suffered by Buyer or any of its
Affiliates arising out of any misrepresentation or breach of warranty, covenant
or agreement made or to be performed by either Seller pursuant to this
Agreement.
(b) Subject to the terms herein, Buyer hereby indemnifies each Seller
and any of such Seller's Affiliates against and agrees to hold each of them
harmless from any and all Loss incurred or suffered by such Seller or any of
such Seller's Affiliates arising out of:
(i) any misrepresentation or breach of warranty, covenant
or agreement made or to be performed by Buyer pursuant to this Agreement; or
(ii) any product liability, adverse reactions or injury from
the use of any Product manufactured by or for Buyer or tested in a clinical
study sponsored or licensed by Buyer.
8.03. PROCEDURES; NO WAIVER; EXCLUSIVITY. (a) The party seeking
indemnification under Section 8.02 (the "INDEMNIFIED PARTY") agrees to give
prompt notice to the party against whom indemnity is sought (the "INDEMNIFYING
PARTY") of the assertion of any claim, or the commencement of any suit, action
or proceeding in respect of which indemnity may be sought under such Section;
PROVIDED that the failure to give such notice shall not affect the Indemnified
Party's rights hereunder except to the extent the Indemnifying Party is
materially prejudiced by such failure. The Indemnifying Party may, and at the
request of the Indemnified Party shall, participate in and control the defense
of any such third party suit, action or proceeding at its own expense. The
Indemnifying Party shall not be liable under Section 8.02 for any settlement
effected without its prior written consent of any claim, litigation or
proceeding in respect of which indemnity may be sought hereunder; PROVIDED that
such written consent may not be unreasonably withheld.
(b) After the Closing, subject to the terms herein, Section 8.02 will
provide the exclusive remedy for Buyer for any misrepresentation, breach of
warranty, covenant or other agreement by Sellers or other claim by Buyer arising
out of this Agreement or the transactions contemplated hereby.
8.04 ABSOLUTE LIMIT ON SELLERS' LIABILITY; NO RECOURSE TO OTHER
ASSETS
(a) Notwithstanding anything in this Agreement or the Conveyance
Documents to the contrary, the Sellers' indemnification obligations pursuant to
Section 8.02 shall expire unless notice of a claim for indemnification is given
to the Sellers before the date six months after the date of the first FDA
Approval. Thereafter, the Sellers shall have no further obligation to the Buyer
under this Agreement other than to perform their obligations under Article V,
Section 6.05, Section 7.01 and Section 7.02 hereof.
<PAGE>
-17-
(b) Notwithstanding anything in this Agreement or the Conveyance
Documents to the contrary, each Seller's aggregate liability shall not exceed
100% of the Milestone Payments and 50% of the Royalty Payments paid or payable
to such Seller, less any taxes paid or payable thereon by such Sellers. Buyer
shall have no recourse to any assets of either Seller except such Milestone
Payments and Royalty Payments.
8.05. CERTAIN REMEDIES. Notwithstanding anything to the contrary
herein, in the event that either Seller has a claim against Buyer arising out of
a material violation of the terms of Section 2.02(f) or 6.01 of this Agreement
as to any particular Patent Application and Buyer shall have failed to cure
ninety days after notice from Seller of such material violation, such Seller's
sole and exclusive remedy shall be to recover from Buyer the Collateral (as
defined in the Collateral Assignment) pursuant to the terms of the Collateral
Assignment. As to any other misrepresentation, breach of warranty, covenant or
other agreement or other claim arising out of any material violation of this
Agreement by Buyer, each Seller shall be entitled to any remedy available at law
or in equity.
8.05. LIMITATIONS OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER
PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOSS OF PROFITS
OR SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND WHATSOEVER.
8.06. FORCE MAJEURE. No party shall be liable for failure or delay in
performing any of its obligations hereunder if such failure or delay is
occasioned by compliance with any governmental regulation, request or order, or
by circumstances beyond the reasonable control of the party so failing or
delaying, including, without limitation, Acts of God, war, insurrection, fire,
flood, accident, labor strikes, work stoppage or slowdown (whether or not such
labor event is within the reasonable control of the parties), or inability to
obtain raw materials, supplies, power or equipment necessary to enable such
party to perform its obligations hereunder. Each party shall (a) promptly notify
the other party in writing of any such event of force majeure, the expected
duration thereof and its anticipated effect on the ability of such party to
perform its obligations hereunder, and (b) make reasonable efforts to remedy any
such event of force majeure.
ARTICLE IX
TERMINATION
9.01. TERMINATION. This Agreement shall terminate upon the expiration
of the last to expire Valid Claim. This Agreement shall also terminate upon any
recovery by Sellers of the Purchased Assets pursuant to the Collateral
Assignment.
9.02. EFFECT OF TERMINATION. If this Agreement is terminated pursuant
to Section 9.01, such termination shall be without liability of any party (or
any stockholder, director, officer, employee, agent, consultant or
representative of such party) to any other party to this Agreement; PROVIDED
that obligations under Article VIII, as well as the obligations of Buyer to pay
Royalty
<PAGE>
-18-
Payments or Milestone Payments earned prior to such termination, shall survive
any such termination..
ARTICLE X
MISCELLANEOUS
10.01. NOTICES. All notices, requests and other communications to
either party hereunder shall be in writing (including telex, telecopy or similar
writing with confirmed receipt of transmission) and shall be given,
(a) if to Buyer, to:
Repligen Corporation
117 Fourth Avenue
Needham, MA 02494
Attention: Walter Herlihy
Daniel Witt
Telecopy: (781) 453-0048
with a copy to:
Testa, Hurwitz & Thibeault, LLP
High Street Tower
125 High Street
Boston, MA 02110
Attention: Lawrence S. Wittenberg, Esq.
Telecopy: (617) 248-7100
(b) if to Sellers, to:
Autism Research Institute
4182 Adams Avenue
San Diego, CA 92116
Attention: Dr. Bernard Rimland
Telecopy: (619) 563-6840
and
Victoria A. Beck
11 McIntosh Lane
Bedford, MA 03110
<PAGE>
-19-
with a copy to:
McLane, Graf, Raulerson & Middleton, P.A.
900 Elm Street
P. O. Box 326
Manchester, NH 03105-0326
Attention: Mark A. Wright, Esq.
Telecopy: (603) 625-5650
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt. All notices and other communications given to
any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt if delivered by hand or
overnight courier service or sent by fax prior to 4:00 p.m. EST or on the date
five business days after dispatch by certified or registered mail if mailed, in
each case delivered, sent or mailed (properly addressed) to such party as
provided in this Section 10.01.
10.02. AMENDMENTS; NO WAIVERS. (a) Any provisions of this Agreement may
be amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by Buyer and both Sellers, or in the case
of a waiver, by the party against whom the waiver is to be effective.
(b) No failure or delay by either party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. Except to the extent expressly
provided otherwise in this Agreement, the rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
10.03. EXPENSES. All costs and expenses incurred in connection with the
negotiation, preparation, execution or delivery of this Agreement shall be paid
by the party incurring such cost or expense.
10.04. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. No party to this Agreement shall assign any
rights under this Agreement to any party without the written consent of the
other parties hereto except that nothing herein shall prohibit or restrict (a)
Buyer from assigning its rights and obligations hereunder to any Affiliate of
Buyer or (b) Beck from assigning her rights hereunder to any Person, including,
without limitation, Gary Beck, any revocable trust of which Beck or Gary Beck is
the grantor, or to any not-for-profit organization.
10.05. GOVERNING LAW; JURISDICTION. This Agreement shall be construed
in accordance with and governed by the law of the Commonwealth of Massachusetts
and the United States of America. Process in any such suit, action or proceeding
may be served on any party anywhere in the world, whether within or without the
jurisdiction of any such court.
<PAGE>
-20-
10.06. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective on the date of signature of the last party to
sign this Agreement.
10.07. ENTIRE AGREEMENT. This Agreement, the Exhibits hereto, the
Schedules and the Conveyance Documents constitute the entire agreement between
the parties with respect to the subject matter hereof and supersede all prior
agreements, understandings and negotiations, both written and oral, between the
parties with respect to the subject matter of this Agreement, including the
Letter of Intent dated as of February 18, 1999 (the "LETTER OF INTENT") by and
among the Buyer and Sellers and certain other parties thereto. To the extent any
terms of this Agreement and surviving terms of the Letter of Intent conflict,
the terms of this Agreement shall govern. No representation, inducement,
promise, understanding, condition or warranty not set forth or referred to
herein has been made or relied upon by either party hereto. Neither of this
Agreement, nor any provision hereof, is intended to confer upon any Person other
than the parties hereto any rights or remedies hereunder.
10.08. CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
10.09 SEVERABILITY. If any provision of this Agreement shall be held to
be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]
<PAGE>
-21-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
REPLIGEN CORPORATION
By: /S/ WALTER HERLIHY
---------------------------------------
Name: Walter Herlihy
Title: President, CEO
Date: March 9, 1999
AUTISM RESEARCH INSTITUTE
By: /S/ BERNARD RIMLAND
---------------------------------------
Name: Bernard Rimland, PhD
Title: Director
Date: March 9, 1999
/S/ VICTORIA A. BECK
---------------------------------------
Victoria A. Beck
Date: March 9, 1999
<PAGE>
Exhibit 2.2
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR
TRANSFERRED UNLESS SUCH SALE OR TRANSFER IS IN ACCORDANCE WITH THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR SOME OTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS IS AVAILABLE WITH
RESPECT THERETO.
COMMON STOCK PURCHASE WARRANT
Warrant No. 1 Number of Shares: 350,000
REPLIGEN CORPORATION
Void after March 9, 2004
1. ISSUANCE. This Warrant is issued to Victoria A. Beck ("Beck") on
this 9th day of March, 1999 (the "Original Issue Date") by RepliGen Corporation,
a Delaware corporation (hereinafter with its successors called the "Company"),
pursuant to a certain Patent Purchase Agreement dated as of March 9, 1999 by and
among Beck, the Company and certain other parties listed on the signature pages
thereto.
2. PURCHASE PRICE; NUMBER OF SHARES. Subject to the terms and
conditions hereinafter set forth, the registered holder of this Warrant (the
"Holder"), commencing on the date hereof, is entitled upon surrender of this
Warrant with the subscription form annexed hereto duly executed, at the office
of the Company, 117 Fourth Avenue, Needham, MA 02494, or such other office as
the Company shall notify the Holder of in writing, to purchase from the Company
at a price per share of $1.59 (the "Purchase Price"), three hundred fifty
thousand (350,000) fully paid and nonassessable shares of Common Stock, $.01 par
value per share, of the Company (the "Common Stock"). Until such time as this
Warrant is exercised in full or expires, the Purchase Price and the securities
issuable upon exercise of this Warrant are subject to adjustment as hereinafter
provided.
3. PAYMENT OF PURCHASE PRICE. The Purchase Price may be paid (i) in
cash or by check, (ii) by the surrender by the Holder to the Company of any
promissory notes or other obligations issued by the Company, with all such notes
and obligations so surrendered being credited against the Purchase Price in an
amount equal to the principal amount thereof plus accrued interest to the date
of surrender, (iii) through delivery by the Holder to the Company of other
securities issued by the Company, with such securities being credited against
the Purchase Price in an amount equal to the fair market value thereof, as
determined in good faith by the
<PAGE>
-2-
Board of Directors of the Company (the "Board"), or (iv) by any combination of
the foregoing. The Board shall promptly respond in writing to an inquiry by the
Holder as to the fair market value of any securities the Holder may wish to
deliver to the Company pursuant to clause (iii) above.
4. NET ISSUE ELECTION. The Holder may elect to receive, without the
payment by the Holder of any additional consideration, shares equal to the value
of this Warrant or any portion hereof by the surrender of this Warrant or such
portion to the Company, with the net issue election notice annexed hereto duly
executed, at the office of the Company. Thereupon, the Company shall issue to
the Holder such number of fully paid and nonassessable shares of Common Stock as
is computed using the following formula:
X = Y (A-B)
-------
A
where
X = the number of shares to be issued to the Holder
pursuant to this Section 4.
Y = the number of shares covered by this Warrant in
respect of which the net issue election is made pursuant to
this Section 4.
A = the fair market value of one share of Common
Stock, which shall be equal to the average closing price on
the Nasdaq National Market of the Common Stock over the ten
(10) day period prior to the date the net issue election is
made pursuant to this Section 4.
B = the Purchase Price in effect under this Warrant
at the time the net issue election is made pursuant to this
Section 4.
The Board shall promptly respond in writing to an inquiry by the Holder as to
the fair market value of one share of Common Stock.
5. PARTIAL EXERCISE. This Warrant may be exercised in part, and the
Holder shall be entitled to receive a new warrant, which shall be dated as of
the date of this Warrant, covering the number of shares in respect of which this
Warrant shall not have been exercised.
6. ISSUANCE DATE. The person or persons in whose name or names any
certificate representing shares of Common Stock is issued hereunder shall be
deemed to have become the holder of record of the shares represented thereby as
at the close of business on the date this Warrant is exercised with respect to
such shares, whether or not the transfer books of the Company shall be closed.
7. EXPIRATION DATE. This Warrant shall expire at the close of business
on March 9, 2004, and shall be void thereafter.
<PAGE>
-3-
8. RESERVED SHARES; VALID ISSUANCE. The Company covenants that it will
at all times from and after the date hereof reserve and keep available such
number of its authorized shares of Common Stock, free from all preemptive or
similar rights therein, as will be sufficient to permit the exercise of this
Warrant in full. The Company further covenants that such shares as may be issued
pursuant to the exercise of this Warrant will, upon issuance, be duly and
validly issued, fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issuance thereof other than those caused or suffered
by the Holder hereof.
9. DIVIDENDS. If after the Original Issue Date the Company shall
subdivide the Common Stock, by split-up or otherwise, or combine the Common
Stock, or issue additional shares of Common Stock in payment of a stock dividend
on the Common Stock, the number of shares issuable on the exercise of this
Warrant shall forthwith be proportionately increased in the case of a
subdivision or stock dividend, or proportionately decreased in the case of a
combination, and the Purchase Price shall forthwith be proportionately decreased
in the case of a subdivision or stock dividend, or proportionately increased in
the case of a combination.
10. MERGERS AND RECLASSIFICATIONS. If after the Original Issue Date
there shall be any reclassification, capital reorganization or change of the
Common Stock (other than as a result of a subdivision, combination or stock
dividend provided for in Section 9 hereof), or any consolidation of the Company
with, or merger of the Company into, another corporation or other business
organization (other than a consolidation or merger in which the Company is the
continuing corporation and which does not result in any reclassification or
change of the outstanding Common Stock), or any sale or conveyance to another
corporation or other business organization of all or substantially all of the
assets of the Company, then, as a condition of such reclassification,
reorganization, change, consolidation, merger, sale or conveyance, lawful
provisions shall be made, and duly executed documents evidencing the same from
the Company or its successor shall be delivered to the Holder, so that the
Holder shall thereafter have the right to purchase, at a total price not to
exceed that payable upon the exercise of this Warrant in full, the kind and
amount of shares of stock and other securities and property receivable upon such
reclassification, reorganization, change, consolidation, merger, sale or
conveyance by a holder of the number of shares of Common Stock which might have
been purchased by the Holder immediately prior to such reclassification,
reorganization, change, consolidation, merger, sale or conveyance, and in any
such case appropriate provisions shall be made with respect to the rights and
interest of the Holder to the end that the provisions hereof (including without
limitation, provisions for the adjustment of the Purchase Price and the number
of shares issuable hereunder) shall thereafter be applicable in relation to any
shares of stock or other securities and property thereafter deliverable upon
exercise hereof.
11. FRACTIONAL SHARES. In no event shall any fractional share of Common
Stock be issued upon any exercise of this Warrant. If, upon exercise of this
Warrant as an entirety, the Holder would, except as provided in this Section 11,
be entitled to receive a fractional share of Common Stock, then the Company
shall issue the next higher number of full shares of Common Stock, issuing a
full share with respect to such fractional share.
<PAGE>
-4-
12. CERTIFICATE OF ADJUSTMENT. Whenever the Purchase Price is adjusted,
as herein provided, the Company shall promptly deliver to the Holder a
certificate of a firm of independent public accountants setting forth the
Purchase Price after such adjustment and setting forth a brief statement of the
facts requiring such adjustment.
13. NOTICES OF RECORD DATE, ETC. In the event of:
(a) any taking by the Company of a record of the holders of
any class of securities for the purpose of determining the holders thereof who
are entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right,
(b) any reclassification of the capital stock of the Company,
capital reorganization of the Company, consolidation or merger involving the
Company, or sale or conveyance of all or substantially all of its assets, or
(c) any voluntary or involuntary dissolution, liquidation
or winding-up of the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder a notice specifying (i) the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (ii) the date on which
any such reclassification, reorganization, consolidation, merger, sale or
conveyance, dissolution, liquidation or winding-up is to take place, and the
time, if any is to be fixed, as of which the holders of record in respect of
such event are to be determined. Such notice shall be mailed at least twenty
(20) days prior to the date specified in such notice on which any such action is
to be taken.
14. AMENDMENT. The terms of this Warrant may be amended, modified or
waived only with the written consent of the Company and the Holder hereof.
15. WARRANT REGISTER; TRANSFERS, ETC.
A. The Company will maintain a register containing the names
and addresses of the registered holders of the Warrant. The Holder may change
its address as shown on the warrant register by written notice to the Company
requesting such change. Any notice or written communication required or
permitted to be given to the Holder may be given by certified mail or delivered
to the Holder at its address as shown on the warrant register.
B. Subject to compliance with applicable federal and state
securities laws, this Warrant may be transferred by the Holder with respect to
any or all of the shares purchasable hereunder. Upon surrender of this Warrant
to the Company, together with the assignment hereof properly endorsed, for
transfer of this Warrant as an entirety by the Holder, the Company shall issue a
new warrant of the same denomination to the assignee. Upon surrender of this
Warrant to the Company, together with the assignment hereof properly endorsed,
by the Holder for transfer with respect to a portion of the shares of Common
Stock purchasable hereunder, the Company
<PAGE>
-5-
shall issue a new warrant to the assignee, in such denomination as shall be
requested by the Holder hereof, and shall issue to such Holder a new warrant
covering the number of shares in respect of which this Warrant shall not have
been transferred.
C. In case this Warrant shall be mutilated, lost, stolen or
destroyed, the Company shall issue a new warrant of like tenor and denomination
and deliver the same (i) in exchange and substitution for and upon surrender and
cancellation of any mutilated Warrant, or (ii) in lieu of any Warrant lost,
stolen or destroyed, upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft or destruction of such Warrant (including a
reasonably detailed affidavit with respect to the circumstances of any loss,
theft or destruction) and of indemnity reasonably satisfactory to the Company,
provided, however, that so long as Beck, or any revocable trust of which she or
Gary Beck is the grantor, is the registered holder of this Warrant, no indemnity
shall be required other than her written agreement to indemnify the Company
against any loss arising from the issuance of such new warrant.
16. CERTAIN OBLIGATIONS. This Warrant has been issued subject to
certain obligations to register the Common Stock under the Securities Act of
1933, as amended, which obligations are set forth in the Patent Purchase
Agreement, of even date herewith, between the Company, Beck and the Autism
Research Institute, which are incorporated herein by reference.
17. NO IMPAIRMENT. The Company will not, by amendment of its
certificate of incorporation, as amended or through any reclassification,
capital reorganization, consolidation, merger, sale or conveyance of assets,
dissolution, liquidation, issue or sale of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist in the carrying out
of all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holder.
18. GOVERNING LAW. The provisions and terms of this Warrant shall be
governed by and construed in accordance with the internal laws of the
Commonwealth of Massachusetts.
19. SUCCESSORS AND ASSIGNS. This Warrant shall be binding upon the
Company's successors and assigns and shall inure to the benefit of the Holder's
successors, legal representatives and permitted assigns.
<PAGE>
-6-
20. BUSINESS DAYS. If the last or appointed day for the taking of any
action required or the expiration of any right granted herein shall be a
Saturday or Sunday or a legal holiday in the Commonwealth of Massachusetts, then
such action may be taken or right may be exercised on the next succeeding day
which is not a Saturday or Sunday or such a legal holiday.
Dated: March 9, 1999 REPLIGEN CORPORATION
(Corporate Seal) By: /S/ WALTER HERLIHY
---------------------------------
Name: Walter Herlihy
Attest: Title: President and CEO
<PAGE>
-7-
Subscription
To:____________________ Date:_________________________
The undersigned hereby subscribes for __________ shares of Common Stock
covered by this Warrant. The certificate(s) for such shares shall be issued in
the name of the undersigned or as otherwise indicated below:
-------------------------------------
Signature
-------------------------------------
Name for Registration
-------------------------------------
Mailing Address
Net Issue Election Notice
To:____________________ Date:_________________________
The undersigned hereby elects under Section 4 to surrender the right to
purchase _______ shares of Common Stock pursuant to this Warrant. The
certificate(s) for the shares issuable upon such net issue election shall be
issued in the name of the undersigned or as otherwise indicated below.
-------------------------------------
Signature
-------------------------------------
Name for Registration
-------------------------------------
Mailing Address
<PAGE>
-8-
Assignment
For value received ____________________________ hereby sells,
assigns and transfers unto ______________________________________
- -----------------------------------------------------------------
Please print or typewrite name and address of Assignee
- -----------------------------------------------------------------
the within Warrant, and does hereby irrevocably constitute and appoint
_______________________ its attorney to transfer the within Warrant on the books
of the within named Company with full power of substitution on the premises.
Dated:_______________________
In the Presence of:
- -----------------------------
