<PAGE>
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
EXHIBIT 10.1
PATENT PURCHASE AGREEMENT
AGREEMENT dated as of May 9, 2000 between Repligen Corporation, a Delaware
company with offices at 117 Fourth Ave., Needham, MA 02494 ("BUYER"), and
Tolerance Therapeutics LLC, an Illinois limited liability company with offices
at Suite 3N, 5490 South Shore Drive, Chicago, IL 60615 ("SELLER").
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. 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.
"ASSET REVERSION" means the reversion of all rights associated with the
Purchased Asset from the Buyer back to the Seller pursuant to the terms and
conditions of Section 2.02(c) of this Agreement
"BLUESTONE" means Dr. Jeffrey Bluestone, a named inventor on the Patent
Application.
"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
Seller to Buyer.
"CLOSING" means the transaction in which the title to the Purchased Assets
is transferred from Seller to Buyer and the Purchase Price is paid by Buyer to
Seller.
"CLOSING DATE" means the date of the Closing.
"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.
"LIEN" means any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind.
"INTELLECTUAL PROPERTY RIGHTS" means any and all rights owned by Seller
outside of a Patent or Patent Application which may be required by Buyer to
commercialize the rights claimed by a Patent or Patent Application.
"PATENT OR PATENT APPLICATION" means U.S. Patent Application USSN
08/696,107, filed August 13, 1996, and any and all patent applications or
continuation, continuation-in-part, or divisional applications which claim
priority thereto, and any patents issuing from any of the foregoing, and any
extensions, reissues, 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, and
all documentation, notes or other materials of Seller with respect to the
foregoing (the "PATENT DOCUMENTATION")
"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.
<PAGE>
"PURCHASED ASSETS" means a Patent or Patent Application and any
Intellectual Property Rights.
"SHARES" shall mean those shares of common stock of the Company issued by
Buyer to Seller pursuant to the term and conditions of this Agreement.
"VALID CLAIM" means a claim included in a Patent or Patent Application
which is actively being prosecuted or which is included in an unexpired United
States or foreign patent which issues from the Patent Application 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 Seller, and Seller agrees to sell,
transfer, 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 Seller at the Closing * by check or wire
transfer;
(b) Buyer shall cause to be issued to Seller as soon as reasonably
practicable after the Closing Date, Thirty Thousand (30,000) shares (as adjusted
for any stock-splits, stock dividends and the like (after the date hereof up to
the date of issuance) of common stock of Buyer; and
(c) Subject to the terms herein, on or before the Contingent Payment Due
Date (as defined herein), Buyer shall, in its sole discretion, either (i)
deliver to Seller * by check or wire transfer (the "CONTINGENT PAYMENT") or (ii)
convey all right, title and interest in and to the Purchased Assets to Seller in
accordance with Section 6.02 hereunder. For purposes of this Agreement, the
"CONTINGENT PAYMENT DUE DATE," shall mean the earlier of (i) declaration of
interference by the Board of Appeals and Interferences of the U.S. Patent and
Trademark Office which results indirectly or directly in Craig Thompson being
named as an inventor on the Patent or Patent Application, (ii) the issuance of a
U.S. patent covered by the Patent Application, (iii) the abandonment of the
Patent Application, (iv) the settlement of matters relating to CTLA-4 between
Buyer and Bristol Meyers Squibb and/or its Affiliates relating to the Patent
Application or any patent issued from it, or (v) May 9, 2001.
2.03. CLOSING. The closing (the "CLOSING") of the purchase and sale of the
Purchased Assets hereunder shall take place at the offices of Testa, Hurwitz &
Thibeault, LLP, 125 High Street, Boston, MA 02110 on May 9, 2000 at 10:00 a.m.,
eastern time, or at such other time or place as Buyer and Seller may agree. At
the Closing,
(a) Buyer shall pay the Purchase Price to Seller in accordance with the
terms of Sections 2.02(a) and 2.02(b) herein.
(b) Buyer and Seller shall execute and deliver the Conveyance Documents to
which each is a party.
(c) Buyer and Seller 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.
* CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as otherwise provided herein, the Seller hereby represents and
warrants to Buyer that:
3.01. CORPORATE EXISTENCE AND POWER OF SELLER. Seller represents and
warrants to Buyer that it is a limited liability company, duly organized,
validly existing and in good standing under the laws of the State of Illinois,
and has all requisite powers and all licenses, authorizations, consents and
approvals required to carry on its business as now conducted.
3.02. CORPORATE AND APPROPRIATE AUTHORIZATION. Seller represents and
warrants to Buyer that the execution, delivery and performance by Seller of this
Agreement and the Conveyance Documents, and the consummation by Seller of the
transactions contemplated hereby and thereby, are within Seller's legal powers
and have been duly authorized by all necessary action on the part of Seller.
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 Seller.
3.03. GOVERNMENTAL AUTHORIZATION. To the best of Seller's knowledge, the
execution, delivery and performance by Seller 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 SELLER. Seller represents and warrants to Buyer
that the execution, delivery and performance by Seller of this Agreement and
each of the Conveyance Documents does not and will not (i) contravene or
conflict with the operating agreement or bylaws of Seller; (ii) contravene or
conflict with or constitute a violation of any provision of any law or
regulation binding upon or applicable to Seller or the Purchased Assets which
contravention, conflict or violation would have a material adverse effect on the
Purchased Assets or their 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 Seller 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. 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.
3.06. LITIGATION. With the sole exception of a notification of pending
interference from the PTO, there is no action, suit, investigation or proceeding
(or any basis therefor), of which Seller has received written notice, pending
or, to the knowledge of Seller, threatened, before any governmental authority or
arbitrator that has or could materially affect any Purchased Asset. Seller has
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.
3.07. INTELLECTUAL PROPERTY. (a) There are no licenses, sublicenses or
other agreements relating to a Patent or Patent Application or Intellectual
Property.
(b) Seller has clear title to each Patent or Patent Application currently
issued or filed, including USSN 08/696,107. To its knowledge, Seller and each
inventor listed in any Patent or Patent Application 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. Seller has all
necessary Patent Documentation underlying the specifications or claims in the
Patent Application and all claims thereunder. All assignments from Bluestone to,
as the case may
<PAGE>
be, Seller or to a predecessor in interest to Seller, have been executed and
either recorded with the PTO or submitted to the PTO for the Patent Application.
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
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 Article 3 of this Agreement nor
either of the exhibits 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 herein or therein not misleading.
3.12. INVESTMENT. Seller represents and warrants to Buyer that it is
acquiring the Shares, 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"). Seller recognizes that the Shares have not been
registered under the Securities Act, and agrees that it will not sell, assign,
transfer, or otherwise distribute the Shares in violation of the Securities Act.
3.13. INVESTIGATION. Seller represents and warrants to Buyer that it is
able to bear the economic risk of loss of its investment in the Shares, 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 SELLER. Seller represents and warrants to Buyer that it
has been advised that the 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 Shares to the Seller, is relying upon, among
other things, the representations and warranties of Seller contained in Sections
3.12-3.15 in concluding that such issuance is a "private offering" and does not
require compliance with the registration provisions of the Securities Act.
3.15 LEGENDS. Seller understands and agrees that each certificate
representing the Shares delivered to Seller 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 Seller 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 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.
<PAGE>
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 OTHER INFORMATION. Article IV of this Agreement does not contain any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements contained herein not misleading.
ARTICLE V
COVENANTS OF SELLER
5.01. CONFIDENTIALITY. 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 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 30 days after the Closing, Seller shall take all necessary
actions to name Peter Fasse, Esq., of Fish and Richardson, as attorney of record
for the Patent Applications, provided that Buyer, at Buyer's expense, prepares
and submits to Seller for execution the documents appropriate to effect the
foregoing.
5.03. PATENT DOCUMENTATION. Upon request of Buyer, Seller shall promptly
deliver to Buyer a copy of all Patent Documentation.
5.04. PUBLICITY. Seller covenants and agrees that the Seller will not issue
any press releases or engage in any other publicity activities with respect to
any information regarding or relating to this Agreement or any transactions
related hereto, without the prior written consent of Buyer.
ARTICLE VI
COVENANTS OF BUYER
<PAGE>
6.01. DILIGENT MAINTENANCE OF PURCHASED ASSETS. For so long as Buyer holds
title to the Patent Application, Buyer will use reasonable commercial efforts to
prosecute the Patent Application, including litigating an interference
proceeding, and to secure the issuance of those claims pending (with respect to
such Patent Application) as of the Closing Date to the extent such claims are
supported by the specification of the Patent Application. Buyer further will use
reasonable commercial efforts to enforce and defend any patents which issue
forth from the Patent Application.
6.02. CONVEYANCE OF RIGHTS IN EVENT OF NON-PAYMENT OF CONTINGENT PAYMENT.
Subject to the terms herein, Buyer hereby covenants and agrees to pay the
Contingent Payment to Seller (a) no later than within 10 business days after May
9, 2001, or (b) if any events set forth in Section 2.02(c)(i) - 2.02(c)(iv)
occur prior to May 9, 2001, within 10 business days of the date Buyer becomes
aware (whether by notice of Seller or otherwise) of such Contingent Payment Due
Date arising out of Sections 2.02(c)(i) - 2.02(c)(iv). In the event Buyer has
elected to not make or has failed to make the Contingent Payment in accordance
with the terms herein, Buyer will convey and deliver all instruments, documents,
and certificates required by Seller to recover to the fullest extent possible,
all right, title, and interest in and to the Purchased Assets.
6.03. GRANT OF LICENSE IN THE EVENT OF NON-USE OF PURCHASED ASSETS. Buyer
will use reasonable commercial efforts to commercially develop technology
related to the Purchased Assets for so long as Buyer holds rights to the
Purchased Assets, which commercial development may include the license or sale
of rights to one or more third parties of the Purchased Assets. Buyer shall,
upon request of Seller, provide written reports describing Buyer's efforts to
commercially develop the property. Buyer, in its sole discretion, may elect to
cease efforts to commercially develop technology related to the Purchased
Assets, provided that such cessation of efforts must be documented and approved
by the executive officers of Buyer. Buyer shall notify Seller of such election
within thirty (30) days of such election. In the event of such an election and
provided that Buyer has paid in full its Contingent Payment (if due) in
accordance with the terms herein and has not previously granted rights to any
unrelated third party to develop such technology, Buyer will grant to Seller a
license to practice under the Purchased Assets in accordance with this Section
6.03 and Section 7.03. Such license to practice under the Purchased Assets shall
be exclusive and able to be sublicensed by Seller, but Buyer shall retain the
first right to prosecute, enforce and defend any patents and patent applications
contained within the Purchased Assets. Buyer and Seller agree to enter into a
separate agreement according to Section 7.03 herein which shall govern such
license.
ARTICLE VII
COVENANTS OF BUYER AND SELLER
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; Seller 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, 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. Seller agrees (i) to
provide such reasonable assistance to Buyer as Buyer may request in
<PAGE>
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. However, Seller and its Affiliates may comply
with any and all court orders (if requested) and provide testimony relating to
any and all matters relating to the Purchased Assets in any proceeding,
deposition, or trial, which testimony is believed to be factually correct by
Seller or its Affiliates, without in any way being held to "contest or assist
any third party in contesting the validity or enforcability of any Valid Claim."
In the event that Dr. Jeff Bluestone, Mr. David Epstein or any other Affiliate
of Seller is requested by Buyer to devote and does actually devote more than 4
days each (it being understood that four hours shall be considered a full day)
to any prosecution, interference, or litigation relating to the Purchased
Assets, that person shall be compensated for his time at the rate of Two Hundred
Dollars ($200.00) per hour (if under four hours for any one day) or $1,600 per
day, plus actual reasonable expenses, as approved in advance by Buyer. Further,
upon request, Buyer shall provide legal counsel to represent Dr. Jeff Bluestone,
Mr. David Epstein or any other Seller Affiliate in conjunction with the giving
of written or oral testimony in regard to any prosecution, interference, or
litigation relating to the Purchased Assets.
(c) 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 Seller 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 Seller 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 required by law or
government agency. 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.
7.03 FURTHER AGREEMENT. In the event that Buyer grants a license to Seller
pursuant to Section 6.02, Buyer and Seller will enter an agreement which governs
such license. The terms and conditions of such license not set forth in Section
6.02 shall be negotiated in good faith by the parties. Notwithstanding anything
to the contrary herein, any royalty rates or royalty payments established under
the license agreement entered into between Buyer and Seller pursuant to Section
6.02 and 7.03 herein shall be reasonably consistent with applicable industry
standards and shall be the only license fees or related cash payments payable by
Seller to Buyer thereunder.
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 V through VIII shall survive the Closing until the
expiration of this Agreement pursuant to Article IX; provided further that
Section 6.02 and Article X shall survive any such termination of this Agreement.
Notwithstanding anything to the contrary herein, Section 6.02 shall terminate
and be of no
<PAGE>
further force or effect if Buyer pays to the Seller the Contingent Payment in
full at anytime prior to or on the Contingent Payment Due Date.
8.02. INDEMNIFICATION. (a) Subject to the limitations set forth in Section
8.03, Seller hereby indemnifies Buyer and Buyer's Affiliates against and agree
to 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 Seller pursuant to this Agreement.
(b) Subject to the terms herein, Buyer hereby indemnifies Seller and any
of Seller's Affiliates against and agrees to hold each of them harmless from any
and all Loss incurred or suffered by Seller or any of 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 which is covered by a Valid Claim.
8.03. PROCEDURES; NO WAIVER; EXCLUSIVITY. 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.
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 Seller or other claim by Buyer arising out of
this Agreement or the transactions contemplated hereby.
8.04. CERTAIN REMEDIES. Notwithstanding anything to the contrary herein, in
the event that Seller has a claim against Buyer arising out of a material
violation of the terms of Section 6.02(a) or 6.03 of this Agreement as to the
Purchased Assets, and with respect only to Section 6.03, Buyer shall have failed
to cure such material violation under section 6.03 ninety (90) days after
written notice from Seller of such material violation, Seller's sole and
exclusive remedy shall be to recover from Buyer the Purchased Assets. 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,
Seller shall be entitled to any remedy available at law or in equity.
8.05. LIMITATIONS OF LIABILITY. EXCEPT IN THE EVENT OF FRAUD, 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
<PAGE>
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 either of i) the
expiration of the last to expire Valid Claim, or ii) the receipt of written
notification by Seller of Buyer's election not to pay in full the Contingent
Payment by the Contingent Payment Due Date or (iii) the actual failure of Buyer
to pay in full the Contingent Payment upon the occurrence of the Contingent
Payment Due Date in accordance with the terms herein.
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.
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 Seller, to:
Tolerance Therapeutics LLC
Suite 3N
5490 South Shore Drive
Chicago, IL 60615
Attention: David Epstein
<PAGE>
Telecopy: (773) 324-7071
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 Seller, 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 Buyer from
assigning its rights and obligations hereunder to any Affiliate of Buyer.
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.
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. 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
<PAGE>
Agreement shall be carried out as if any such illegal, invalid or unenforceable
provision were not contained herein.
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]
<PAGE>
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/ DANIEL P. WITT
-----------------
Name: Daniel P. Witt
Title: VP Business Development
Date: May 9, 2000
TOLERANCE THERAPEUTICS LLC
By: /s/DAVID EPSTEIN
---------------
Name: DAVID EPSTEIN
Title: Manager
Date: May 9, 2000
