-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Q8nYGeYn3WwNpWAB4dRkQ4R+tEsHWUcdJGQtNe63NFu+swfV+NFFQbDFonQS3qcg 9uYdUw2CRu/qxtncvX7fLQ== 0001005477-98-000336.txt : 19980217 0001005477-98-000336.hdr.sgml : 19980217 ACCESSION NUMBER: 0001005477-98-000336 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19971231 FILED AS OF DATE: 19980212 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: REPLIGEN CORP CENTRAL INDEX KEY: 0000730272 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 042729386 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 000-14656 FILM NUMBER: 98535728 BUSINESS ADDRESS: STREET 1: 117 FOURTH AVE CITY: NEEDHAM STATE: MA ZIP: 02194 BUSINESS PHONE: 7814499560 MAIL ADDRESS: STREET 1: 117 FOURTH AVE CITY: NEEDHAM STATE: MA ZIP: 02194 10-Q 1 FORM 10-Q SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-Q |X| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended December 31, 1997 OR |_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from ____________________ to ____________________ Commission File number 0-14656 REPLIGEN CORPORATION (Exact Name of Registrant as Specified in Its Charter) Delaware 04-2729386 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 117 Fourth Avenue Needham, Massachusetts 02194 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (781)-449-9560 ----------------------------------------------------------------- (Former name, former address and former fiscal year, if changed since last report.) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ____ No ____. Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of January 31, 1998. Common Stock, par value $.01 per share 18,001,785 -------------------------------------- ---------------- Class Number of Shares REPLIGEN CORPORATION Form 10-Q for the Quarter Ending December 31, 1997 INDEX PAGE PART I. FINANCIAL INFORMATION Item 1. Financial Statements Condensed Consolidated Balance Sheets as of December 31, 1997 and March 31, 1997 3 Condensed Consolidated Statements of Operations for the Three and Nine Months Ended December 31, 1997 and 1996 4 Condensed Consolidated Statement of Cash Flows for the Nine Months Ended December 31, 1997 and 1996 5 Notes to Condensed Consolidated Financial Statements 6 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 7 PART II. OTHER INFORMATION Item 1. Legal Proceedings None Item 2. Changes in Securities 9 Item 3. Defaults Upon Senior Securities None Item 4. Submissions of Matters to a Vote of Security Holders None Item 5. Other Information None Item 6. Exhibits and Reports on Form 8-K 10 (a) Exhibits 4.1 Form of Warrant 10.1 Stock and Warrant Purchase Agreement 27.1 Financial Data Schedule (b) Reports on Form 8-K 2 Signature 11 Exhibit Index 12 PART I. FINANCIAL INFORMATION ITEM I. FINANCIAL STATEMENTS 3 REPLIGEN CORPORATION CONDENSED CONSOLIDATED BALANCE SHEETS (Unaudited) ASSETS December 31, 1997 March 31, 1997 ----------------- -------------- Current assets: Cash and cash equivalents $ 4,919,340 $ 3,465,881 Marketable securities -- 72,353 Accounts receivable 364,927 534,929 Inventories 528,379 452,241 Prepaid expenses and other current assets 132,929 165,720 ------------- ------------- Total current assets 5,945,575 4,691,124 Property, plant and equipment, at cost: Equipment 770,512 724,564 Furniture and fixtures 31,807 28,820 Leasehold improvements 442,528 386,199 1,244,847 1,139,583 Less: accumulated depreciation and amortization 532,048 349,112 ------------- ------------- 712,799 790,471 Restricted cash -- 50,087 Other assets, net 88,909 88,909 ------------- ------------- $ 6,747,283 $ 5,620,591 ============= ============= LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Accounts payable $ 64,660 $ 168,269 Accrued expenses 245,722 399,988 Unearned income -- 133,313 ------------- ------------- Total current liabilities 310,382 701,570 Commitments and contingencies Stockholders' equity: Preferred stock, $.01 par value -- authorized -- 5,000,000 shares -- outstanding - none -- -- Common stock, $.01 par value -- authorized -- 30,000,000 shares-- outstanding - 18,001,785 shares at December 31, 1997 and 16,001,785 at March 31, 1997 180,017 160,017 Additional paid-in capital 130,264,048 128,309,048 Deferred compensation (3,535) (26,447) Accumulated deficit (124,003,629) (123,523,597) ------------- ------------- Total stockholders' equity 6,436,901 4,919,021 $ 6,747,283 $ 5,620,591 ============= ============= See accompanying notes to condensed consolidated financial statements. 4 REPLIGEN CORPORATION CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (Unaudited)
Three Months Ended Nine Months Ended ------------------ ----------------- December 31, December 31, December 31, December 31, 1997 1996 1997 1996 ------------ ------------ ------------ ------------ Revenues: Research and development $ 377,957 $ 440,180 $ 802,326 $ 890,641 Product 316,146 503,049 855,532 1,123,827 Investment income 44,862 98,744 159,968 206,543 Other 14,472 24,593 114,447 667,180 ------------ ------------ ------------ ------------ 753,437 1,066,566 1,932,273 2,888,191 ------------ ------------ ------------ ------------ Costs and expenses: Research and development 348,860 240,139 1,063,061 934,599 Selling, general and 300,609 353,775 922,818 1,540,137 administrative Cost of goods sold 198,607 211,538 426,425 363,187 Charge for purchased research & development -- 365,285 -- 365,285 ------------ ------------ ------------ ------------ 848,076 1,170,737 2,412,304 3,203,208 Net loss $ (94,639) $ (104,171) $ (480,031) $ (315,017) ============ ============ ============ ============ Basic loss per common share $ (.01) $ (.01) $ (0.03) $ (0.02) ============ ============ ============ ============ Weighted average common shares outstanding 16,023,763 15,605,846 16,009,084 15,603,639 ============ ============ ============ ============
See accompanying notes to condensed consolidated financial statements. 5 REPLIGEN CORPORATION CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited) Nine Months Ended December 31, ------------------------- 1997 1996 ----------- ----------- Cash flows from operating activities: Net loss $ (480,031) $ (315,017) Adjustments to reconcile net loss to net cash used in operating activities - Depreciation and amortization 182,935 128,709 Compensation charge from stock options 22,912 32,395 Charge for purchased research & development -- 365,285 Changes in assets and liabilities - Accounts receivable 170,002 (242,720) Amounts due from affiliates -- 42,284 Inventories (76,138) 256,784 Prepaid expenses and other current assets 32,791 35,187 Accounts payable (103,609) (292,254) Accrued expenses (154,266) (3,388,055) Unearned income (133,313) 78,316 ----------- ----------- Net cash used in operating activities (538,717) (3,299,086) ----------- ----------- Cash flows from investing activities: Decrease in marketable securities 72,353 137,704 Purchases of property, plant and equipment, net (105,264) (367,020) Decrease in other assets -- 5,900 Decrease (increase) in restricted cash 50,087 (104,466) ----------- ----------- Net cash provided by (used in) investing activities 17,176 (327,882) ----------- ----------- Cash flows from financing activities: Net proceeds from the issuance of common stock and warrants, net of issuance costs 1,975,000 -- ----------- ----------- Net cash provided by financing activities 1,975,000 -- ----------- ----------- Net increase (decrease) in cash and cash equivalents 1,453,459 (3,626,968) Cash and cash equivalents, beginning of period 3,465,881 6,944,140 ----------- =========== Cash and cash equivalents, end of period $ 4,919,340 $ 3,317,172 =========== =========== See accompanying notes to condensed consolidated financial statements. 6 REPLIGEN CORPORATION NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) 1. Basis of Presentation The condensed consolidated financial statements included herein have been prepared by Repligen Corporation (the "Company" or "Repligen"), pursuant to the rules and regulations of the Securities and Exchange Commission for quarterly reports on Form 10-Q and do not include all of the information and footnote disclosures required by generally accepted accounting principles. These financial statements should be read in conjunction with the audited financial statements and notes thereto included in the Company's Form 10-K for the year ending March 31, 1997. In the opinion of management, the accompanying unaudited financial statements include all adjustments consisting of only normal, recurring adjustments necessary to present fairly, the consolidated financial position, results of operations and cash flows. The results of operations for the interim periods presented are not necessarily indicative of results to be expected for the entire year. The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Reclassifications have been made in prior year condensed consolidated financial statements to conform with the current year's presentations. 2. Basic Loss Per Common Share Basic loss per common share has been computed by dividing net loss by the weighted average number of shares outstanding during the period. At December 31, 1997, there are 559,000 options outstanding, with a weighted average exercise price of $1.36 and 2,832,000 warrants outstanding, with a weighted average exercise price of $3.97. These common stock equivalents have not been included for any period as the impact would be antidilutive. In February 1997 the Financial Accounting Standard Board issued SFAS No. 128 Earnings Per Share, which requires a new method of calculating earnings per share (EPS). The Company is required to use this method beginning with the financial statements for period ended December 31, 1998. The reported EPS will be unchanged from amounts presented in prior periods' interim reports. 3. Cash Equivalents and Marketable Securities The Company considers all highly liquid investments with a maturity of three months or less at the time of acquisition to be cash equivalents. Included in cash equivalents at December 31, 1997 are approximately $1,600,000 of cash, $525,000 of money market funds and approximately $2,800,000 investment in commercial paper. Investments with a maturity period of greater than three months are classified as marketable securities. 8 4. Inventories Inventories are stated at the lower of cost (first-in, first-out) or market and consist of the following: December 31, March 31, 1997 1997 --------- --------- Raw materials and work-in-process $ 343,000 $ 298,000 Finished goods 185,000 154,000 --------- --------- Total $ 528,000 $ 452,000 ========= ========= Work in process and finished goods inventories consist of material, labor, outside processing and manufacturing overhead. 5. Stockholders' Equity On December 31, 1997, the Company completed a $2.0 million private placement of its securities. The Company received net proceeds of $1.975 million for the issuance of 2,000,000 shares of Common Stock (the "Common Shares") and warrants to purchase an aggregate of 750,000 shares of Common Stock. 8 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS Cautionary Statement Regarding Forward-Looking Statements Statements in this Quarterly Report on Form 10-Q under this caption, "Management's Discussion and Analysis of Financial Condition and Results of Operations," as well as oral statements that may be made by the Company or by officers, directors or employees of the Company acting on the Company's behalf, that are not historical facts constitute "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1996. Such forward-looking statements involve known and unknown risks, uncertainties and other factors that could cause the actual results of the Company to be materially different from the historical results or from any results expressed or implied by such forward-looking statements. Certain Factors That May Affect Future Results The Company's future operating results are subject to risks and uncertainties and are dependent upon many factors, including, without limitation, the Company's ability to (i) meet its working capital and future liquidity needs, (ii) successfully implement its restructuring and strategic growth strategies, (iii) understand, anticipate and respond to rapidly changing technologies and market trends, (iv) develop, manufacture and deliver high quality, technologically advanced products on a timely basis to withstand competition from competitors which may have greater financial, information gathering and marketing resources than the Company, (v) obtain and protect licensing and intellectual property rights necessary for the Company's technology and product development on terms favorable to the Company, (vi) recruit and retain highly talented professionals in a competitive job market. Each of these factors, and others, are discussed from time to time in the filings made by the Company with the Securities and Exchange Commission. The Company Repligen Corporation is developing a new class of synthetic drugs designed to block important protein-carbohydrate and protein-protein interactions. Although clinical experience with complex natural products and monoclonal antibodies has shown that many of these interactions are important in disease, it has not been possible to identify easily synthesized organic compounds for these types of targets. Repligen is developing technologies to discover drugs which can block protein-macromolecule interactions including methods for the rapid synthesis of chemical compound libraries with "natural product-like" complexity and high throughput screening assays based on specific biological targets. In a proprietary program these technologies are being applied to the discovery of small molecule inhibitors for several growth factors responsible for angiogenesis or new blood vessel growth. Compounds which inhibit angiogenic growth factors may have application in certain ocular diseases (including diabetic retinopathy or macular degeneration) and oncology. The Company's high throughput screening assays can identify inhibitors of the interaction of these growth factors with cell surface carbohydrates by screening customized combinatorial chemical libraries. The Company also has ongoing collaborations with Pfizer Inc., Glaxo Wellcome and Cambridge NeuroScience based on its drug discovery technologies. 9 Repligen also manufactures and markets a line of products for the production of monoclonal antibodies intended for human clinical use. These products are based on recombinant Protein A for which Repligen holds patents in the United States and major foreign markets. In addition, the Company has out-licensed certain intellectual property pertaining to its former programs on biological products. Results of Operations Revenues Total revenues for the three month periods ended December 31, 1997 and 1996 were $753,000 and $1,067,000, respectively, a decrease of approximately 29%. Year to date total revenues decreased approximately 33% to $1,932,000 at December 31, 1997 from $2,888,000 at December 31, 1996. This decrease is largely attributable to the one-time sales of securities and equipment for approximately $505,000 reported as "Other Income" in the nine month period ended December 31, 1996. Research and development revenues for the three month period ended December 31, 1997 were $378,000 compared to $440,000 in the comparable fiscal 1997 period. In the first nine months of fiscal 1998, the Company recorded research and development revenues totaling $802,000 consisting primarily of approximately $620,000 from contracted research and development programs and $182,000 from licensing revenues. In the first nine months of fiscal 1997, the Company recorded research and development revenues totaling $891,000 consisting primarily of $662,000 from contracted research and development programs and $229,000 from licensing revenues. Product revenues for the three months ended December 31, 1997 and 1996 were $316,000 and $503,000, respectively, and were $856,000 and $1,124,000 for the nine months ended December 31, 1997 and 1996, respectively. This decrease is attributed to the timing of large production scale orders of Protein A. Investment income decreased in fiscal 1998 over the comparable three and nine month periods in fiscal 1997 primarily due to lower average funds available for investment. Other revenues for the three and nine month periods ended December 31, 1997 decreased from the comparable fiscal 1997 periods primarily due to the Company's one-time sales of equipment and furnishings of approximately $205,000 and non-investment securities of approximately $300,000 during fiscal 1997. Expenses Total expenses for the three month periods ended December 31, 1997 and 1996 decreased 28% to $848,000 from $1,171,000. This decrease is largely attributable to the $365,000 charge for purchased research and development that occurred in the quarter ended December 31,1997 relating to the acquisition of Proscure, Inc. For the nine months ended December 31, 1997 and 1996, expenses were $2,412,000 and $3,203,000, respectively. Research and development expenses for the three months ended December 31, 1997 and 1996 were $349,000 and $240,000, respectively, an increase of 45%. For the nine months ended 10 December 31, 1997 and 1996, research and development expenses were $1,063,000 and $935,000, respectively, an increase of 14%. This increase is largely attributable to increased investment in the Company's proprietary product development during fiscal 1998. Selling, general and administrative expenses for the three month and nine month periods ended December 31, 1997 were $301,000 and $923,000, respectively, which reflects a decrease of $53,000 and $617,000, respectively, from the comparable 1997 periods. These decreases resulted from the reduction of administrative personnel and related expenses as part of the Company's cost reduction efforts in April through June of 1996. Cost of goods sold for the three month and nine month periods ended December 31, 1997 were $199,000 and $426,000, respectively, as compared to $212,000 and $363,000 for the three and nine months ended December 31, 1996. Cost of goods sold in the three month periods ended December 31, 1997 and 1996 were 63% and 42% of product revenues, respectively. In the nine month periods ended December 31, 1997 and 1996, cost of goods sold was 50% and 32% of product sales, respectively. The increase in cost of sales as a percentage of revenue is primarily a result of the realization of inventory that had been previously reserved for in the three and nine month periods ended December 31, 1996. Liquidity and Capital Resources The Company's total cash, cash equivalents and marketable securities increased to $4,919,000 at December 31, 1997 from $3,538,000 at March 31, 1997, an increase of $1,381,000 or 39%. The increase reflects $2,000,000 of proceeds (before expenses) resulting from the sale of Common Stock and Warrants through a private placement that took place during the three months ended December 31, 1997 offset by the net losses during the nine month period ended December 31, 1997 of approximately $480,000, an increase in inventory of $76,000, the reduction of accounts payable and accrued expenses of $260,000, offset in part by the reduction in accounts receivables and prepaid expenses of $203,000. Working capital increased to $5,635,000 at December 31, 1997 from $3,990,000 at March 31, 1997. During the nine months ended December 31, 1997, the Company entered into a $450,000 note receivable with a licensee for past due licensing fees. As the Company has historically recorded licensing fees under this agreement on a cash basis, the Company has not recorded this note receivable as an asset. The note requires full payment of principal and interest in August 1998. The Company will continue to record this license fee on a cash basis. The Company has funded operations primarily with cash derived from the sales of its equity securities, revenue derived from research and development contracts, product sales and investment income. The Company believes it has sufficient cash equivalents and marketable securities to satisfy its working capital and capital expenditure requirements for the next twenty-four months. Should the Company need to secure additional financing to meet its future liquidity requirements, there can be no assurances that the Company will be able to secure such financing, or that such financing, if available, will be on terms favorable to the Company. On February 23, 1998, Nasdaq will initiate new requirements for listing on the Nasdaq National Market. Currently, the Company believes it is in compliance with all of the new requirements. There can be no assurance, however, that the Company will be able to continue to satisfy all the requirements issued by Nasdaq or that the Company's Common Stock will continue 11 to be listed on the Nasdaq National Market. Should it occur, the delisting of the Company's Common Stock from the Nasdaq National Market could have a material adverse effect on the Company's business, results of operations and financial condition. PART II. OTHER INFORMATION Item 2. CHANGES IN SECURITIES Pursuant to the Stock and Warrant Purchase Agreement dated as of December 31, 1997 (the "Purchase Agreement") among the Company and Biotechnology Value Fund, L.P., certain of its affiliates, and Four Partners, L.P.(collectively, the "Purchasers"), the Purchasers invested an aggregate of $2 million in exchange for 2,000,000 shares of the Company's Common Stock (the "Common Shares"), and warrants to purchase at any time prior to December 31, 2004 an aggregate of 750,000 shares of Common Stock at a price per share of $1.50. The sale of the Common Shares and Warrants was made in reliance upon the exemption from registration under section 4 (2) of the Securities Act as transactions not involving any public offering. The Company has reason to believe that the Purchasers were "accredited investors"(as such term is defined in Regulation D of the Securities Acts), were familiar with and had access to information concerning the operations and financial conditions of the Company, and were acquiring the securities for investment and not with a view to the distribution thereof. No underwriter was engaged in connection with the foregoing issuance of securities. Item 6. EXHIBITS AND REPORTS ON FORM 8-K (a) Exhibits EXHIBIT DESCRIPTION ------- ----------- 4.1 Form of Stock Purchase Warrant 10.1 Stock & Warrant Purchase Agreement 27.1 Financial Data Schedule (b) Reports on Form 8-K Current Report dated December 31, 1997 filed with the Securities and Exchange Commission on January 2, 1998 relating to the Company's private placement of stocks and warrants. 12 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. SIGNATURE REPLIGEN CORPORATION (Registrant) Date: February 13, 1998 By: /S/ Walter C. Herlihy -------------------------------- Chief Executive Officer Signing on behalf of the Registrant and as Principal Financial and Accounting Officer 13 REPLIGEN CORPORATION AND SUBSIDIARIES EXHIBIT INDEX EXHIBIT NO. DESCRIPTION PAGE ----------- ----------- ---- 4.1 Form of Stock Purchase Warrant 15 10.1 Stock and Warrant Purchase Agreement 22 27.1 Financial Data Schedule 38 14 EX-4.1 2 FORM OF STOCK PURCHASE WARRANT EXHIBIT 4.1 FORM OF STOCK PURCHASE WARRANT THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT 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. THIS WARRANT WAS ISSUED PURSUANT TO THAT CERTAIN STOCK AND WARRANT PURCHASE AGREEMENT DATED DECEMBER 31, 1997 AND MAY NOT BE TRANSFERRED, COMBINED, OR SPLIT UP WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY. THE COMPANY WILL DELIVER A COPY OF SUCH AGREEMENT TO THE HOLDER HEREOF UPON REQUEST. No. ____ _________ Shares of Common Stock REPLIGEN CORPORATION STOCK PURCHASE WARRANT Expiration Date: December 31, 2004 Repligen Corporation, a Delaware corporation (the "Company"), hereby certifies that _______________ (the "Warrantholder"), for value received, is entitled, subject to the terms set forth below, to purchase from the Company at any time or from time to time before the Expiration Date, as defined in Section 1, that number of fully paid and nonassessable shares of the Common Stock of the Company (the "Common Stock") set forth above at an exercise price of $1.50 per share (subject to adjustment pursuant to Section 6). This Warrant is issued pursuant to the terms and conditions of that certain Stock and Warrant Purchase Agreement dated as of December 31, 1997 among the Company and the Investors (as defined therein). As used herein the following terms, unless the context otherwise requires, have the following respective meanings: The term "Company" includes any corporation which shall succeed to or assume the obligations of the Company hereunder. The term "Stock" shall mean the class of Common Stock of the Company and any other securities or property of the Company or of any other person (corporate or otherwise) which the Warrantholder at any time shall be entitled to receive on the exercise hereof in lieu of or in addition to such Common Stock, or which at any time shall be issuable in exchange for or in replacement of such Common Stock. 1. Initial Exercise Date; Expiration. Subject to the provisions of Section 2, this Warrant may be exercised at any time or from time to time. It shall expire at 5:00 p.m., Eastern time, on December 31, 2004 (the "Expiration Date"). 15 2. Exercise of Warrant; Redemption. (a) This Warrant may be exercised in full or in part by the holder hereof by surrender of this Warrant, with the form of "cash exercise" subscription attached hereto (the "Exercise Notice") duly executed by such holder, to the Company at its principal office, accompanied by payment, in cash or by certified or official bank check payable to the order of the Company, of the purchase price of the shares of Stock to be purchased hereunder. (b) The Warrantholder may elect to receive, without the payment by the Warrantholder 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 redemption notice attached hereto (the "Redemption Notice") duly executed, at the office of the Company. Thereupon, the Company shall issue to the Warrantholder such number of fully paid and nonassessable shares of Stock as is computed using the following formula: X = Y (A-B) / A where X = the number of shares to be issued to the Warrantholder pursuant to this Section 2(b). Y = the number of shares covered by this Warrant in respect of which the net issue election is made pursuant to this Section 2(b). A = the fair market value ("FMV") of one share of Common Stock, as determined below, as at the time the net issue election is made pursuant to this Section 2(b). B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 2(b). For the purposes of this Section 2(b), FMV shall be determined at the time of exercise and shall mean: (A) if the Common Stock is then publicly traded, the average closing price in the over-the-counter market as reported by NASDAQ or as quoted in the NASDAQ National Market System or on any national securities exchange on which the Common Stock is traded for the ten (10) prior trading days, or (B) if the Common Stock is not then publicly traded, the price per share of Common Stock or Common Stock equivalent paid by investors to purchase the Common Stock or Common Stock equivalent of the Company (taking into account any consideration paid separately to acquire any security which is exercisable for or convertible into Common Stock) in any arm's length equity financing completed within the preceding six (6) months, or, if no such equity financing has so occurred, a fair value as determined in good faith by the Board of Directors of the Company (the "Board") or (C) in the case of a Business Combination, the price per share of Common Stock paid in the Business Combination or, if such payment is made by property other than cash, the fair value of such property paid per share of Common Stock in the Business Combination as determined in good faith by the Board. In the event that this Warrant is exercised pursuant to this Section 2(b) in connection with a Business Combination, the Company may elect to treat such exercise in accordance with Section 5(d). In the event the Common Stock is not publicly traded, the Board of Directors of the Company shall promptly respond in writing to a reasonable inquiry by the holder hereof as to the fair market value of the Common Stock for purposes of this Section 2(b). (c) For any partial exercise or redemption pursuant to Section 2(a) or 2(b) hereof, the Warrantholder shall designate in the Exercise Notice or Redemption Notice (as the case may be) the number of shares of Stock that it wishes to purchase or the aggregate number of underlying shares of Stock 16 represented by the portion of the Warrant it wishes to redeem (as the case may be). On any such partial exercise or redemption, the Company at its expense shall forthwith issue and deliver to the Warrantholder a new warrant of like tenor, in the name of the Warrantholder, which shall be exercisable for such number of shares of Stock represented by this Warrant which have not been purchased upon such exercise or redemption. 3. When Exercise or Redemption Effective. The exercise or redemption of this Warrant shall be deemed to have been effected immediately prior to the close of business on the business day on which this Warrant is surrendered to the Company as provided in Section 2(a) or 2(b) (as the case may be). 4. Delivery on Exercise or Redemption. As soon as practicable after the exercise or redemption of this Warrant in full or in part pursuant to Section 2(a) or 2(b), as the case may be, and in any event within five (5) business days thereafter, the Company at its expense (including the payment by it of any applicable issue taxes) will cause to be issued in the name of and delivered to the Warrantholder, or as such Warrantholder may direct, a certificate or certificates for the number of fully paid and nonassessable full shares of Stock to which such holder shall be entitled on such exercise or redemption, together with cash, in lieu of any fraction of a share, equal to such fraction of the then FMV of one full share as determined in accordance with Section 2(b). 5. Business Combinations. (a) In event of any merger, consolidation or sale of the outstanding capital stock of the Company (in a single transaction or related series of transactions), resulting in a change of ownership of two-thirds or more of the voting power of the Company, or in the event of a sale of all or substantially all of the assets of the Company (such merger, consolidation or sale referred to hereinafter as a "Business Combination"), the Company shall have the right at any time or times to redeem this Warrant in full or in part in accordance with Section 2(b) and this Section 5. (b) At least 10 days before the date fixed by the Company for redemption pursuant to this Section 5, the Company shall mail, postage prepaid, written notice to the Warrantholder (the "Company Redemption Notice"), at his address shown on the records of the Company; provided, however, that the Company's failure to give the Company Redemption Notice shall in no way affect its right to redeem this Warrant as provided herein. The Company Redemption Notice shall contain the following information: (i) The redemption date(s); (ii) The applicable FMV of the Common Stock determined in accordance with Section 2(b) and the number of shares of Stock issuable to the Warrantholder upon redemption; and (iii) A statement that the Warrantholder is to surrender this Warrant to the Company, at the place designated. (c) The Warrantholder shall surrender this Warrant to the Company at the place designated in the Company Redemption Notice. Thereupon, there shall be issued to the Warrantholder a certificate or certificates for the number of shares of Stock issuable pursuant to Section 2(b) (or such other consideration as may be payable pursuant to Section 5(d)). The Company shall not be obligated to issue certificates evidencing such shares of Stock or other consideration unless this Warrant is either delivered to the Company or any transfer agent designated by the Company or unless the Warrantholder notifies the Company or such transfer agent that this Warrant has been lost, stolen or destroyed and executes an 17 agreement satisfactory to the Company to indemnify the Company from any loss incurred by it in connection therewith. (d) In lieu of issuing shares of Stock upon redemption of this Warrant, the Company may, at its election, pay or issue, or cause to be paid or issued, to the Warrantholder the amount of cash or number of shares of Stock or other securities or property of the Company, or of the successor corporation, resulting from the Business Combination to which such holder would have been entitled upon such date if such holder had redeemed this Warrant pursuant to Section 2(b) immediately prior thereto. (e) In case at any time and from time to time, the Company shall effect a Business Combination and the Company does not exercise its right to redeem this Warrant in accordance with the foregoing provisions of this Section 5, then in such case, the holder of this Warrant, on the exercise hereof pursuant to Section 1 at any time after the date of the consummation of such Business Combination, shall receive, in lieu of the Common Stock or other securities that would have been issuable upon such exercise prior to the consummation of the Business Combination, the amount of cash or number of shares of Stock or other securities or property of the Company, or of the successor corporation, to which such holder would have been entitled upon the consummation of such Business Combination if such holder had so exercised this Warrant immediately prior thereto, all subject to further adjustment as provided in Section 6 below. 6. Adjustment of Purchase Price and Number of Shares. The character of the shares of Stock issuable upon exercise or redemption of this Warrant (or any shares of stock or other securities at the time issuable upon exercise or redemption of this Warrant) and the purchase price therefor, are subject to adjustment upon the occurrence of the following events: (a) Adjustment for Stock Splits, Stock Dividends, Recapitalizations, etc. The exercise price of this Warrant and the number of shares of Stock issuable upon exercise or redemption of this Warrant (or any shares of stock or other securities at the time issuable upon exercise or redemption of this Warrant) shall be appropriately adjusted to reflect any stock dividend, stock split, combination of shares, reclassification, recapitalization or other similar event affecting the number of outstanding shares of Stock (or such other stock or securities). For example, if there should be a 2-for-1 stock split, the exercise price would be divided by two and such number of shares would be doubled. (b) Adjustment for Other Dividends and Distributions. In case the Company shall make or issue, or shall fix a record date for the determination of eligible holders entitled to receive, a dividend or other distribution after December 31, 1997 with respect to the Stock (or any shares of stock or other securities at the time issuable upon exercise or redemption of the Warrant) payable in (i) securities of the Company (other than shares of Stock) or (ii) assets (excluding cash dividends paid or payable solely out of current or retained earnings), then, in each case, the holder of this Warrant on exercise or redemption hereof at any time after the consummation, effective date or record date of such event, shall receive, in addition to the Stock (or such other stock or securities) issuable on such exercise or redemption prior to such date, the securities or such other assets of the Company to which such holder would have been entitled upon such date if such holder had exercised or redeemed this Warrant immediately prior thereto (all subject to further adjustment as provided in this Warrant). (c) Certificate as to Adjustments. In case of any adjustment or readjustment in the price or kind of securities issuable on the exercise or redemption of this Warrant, the Company will promptly give written notice thereof to the holder of this Warrant in the form of a certificate, certified and confirmed by the 18 President of the Company, setting forth such adjustment or readjustment and showing in reasonable detail the facts upon which such adjustment or readjustment is based. 7. No Impairment. The Company will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, 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 of this Warrant against impairment. Without limiting the generality of the foregoing the Company (a) will not increase the par value of any shares of stock receivable on the exercise or redemption of this Warrant above the amount payable therefor on such exercise or redemption, (b) will at all times reserve and keep available a number of its authorized shares of Stock, free from all preemptive rights therein, which will be sufficient to permit the exercise or redemption of this Warrant by the Warrantholder, and (c) shall take all such action as may be necessary or appropriate in order that all shares of Stock as may be issued pursuant to the exercise or redemption 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 issue thereof. 8. 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, or (b) any capital reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company, or any transfer of all or substantially all the assets of the Company to or consolidation or merger of the Company with or into any other person, or (c) any voluntary or involuntary dissolution, liquidation or winding-up of the Company, or (d) any proposed issue or grant by the Company of any shares of any class or any other securities, or any right or option to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other securities, then and in each such event the Company will mail to the holder hereof 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, (ii) the date on which any such reorganization, reclassification, recapitalization, transfer, consolidation, merger, 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 of Stock (or any shares of stock or other securities at the time issuable upon the exercise or redemption of this Warrant) shall be entitled to exchange their shares for securities or other property deliverable on such reorganization, reclassification, recapitalization, transfer, consolidation, merger, dissolution, liquidation or winding-up, and (iii) the amount and character of any stock or other securities, or rights or options with respect thereto, proposed to be issued or granted, the date of such proposed issue or grant and the persons or class of persons to whom such proposed issue or grant is to be offered or made. Such notice shall be mailed at least 10 days prior to the date therein specified. 9. Exchange of Warrant. On surrender for exchange of this Warrant, properly endorsed, to the Company, the Company at its expense will issue and deliver to, or on the order of, the holder thereof a new 19 Warrant of like tenor, in the name of such holder calling in the aggregate on the face thereof for the number of shares of Stock called for on the face of the Warrant so surrendered. 10. Replacement of Warrant. On receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of any such loss, theft or destruction of this Warrant, on delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company or, in the case of any such mutilation, on surrender and cancellation of such Warrant, the Company at its expense will execute and deliver, in lieu thereof, a new Warrant of like tenor. 11. Investment Intent. Unless a current registration statement under the Securities Act of 1933, as amended, shall be in effect with respect to the issuance of the securities to be issued upon exercise or redemption of this Warrant, the holder thereof, by accepting this Warrant, covenants and agrees that, at the time of exercise or redemption hereof, and at the time of any proposed transfer of securities acquired upon exercise or redemption hereof, such holder will deliver to the Company a written statement that the securities acquired by the holder upon exercise or redemption hereof are for the own account of the holder for investment and are not acquire with a view to, or for sale in connection with, any distribution thereof (or any portion thereof) and with no present intention (at any such time) of offering and distributing such securities (or any person thereof). 12. Transfer. This Warrant is not transferable without the prior written consent of the Company. 13. No Rights or Liability as a Stockholder. This Warrant does not entitle the Warrantholder to any voting rights or other rights as a stockholder of the Company. No provisions hereof, in the absence of affirmative action by the Warrantholder to purchase Stock, and no enumeration herein of the rights or privileges of the Warrantholder shall give rise to any liability of such Warrantholder as a stockholder of the Company. 14. Damages. The Company recognizes and agrees that the Warrantholder will not have an adequate remedy if the Company fails to comply with the terms of this Warrant and that damages will not be readily ascertainable, and the Company expressly agrees that, in the event of such failure, it shall not oppose an application by the holder of this Warrant or any other person entitled to the benefits of this Warrant requiring specific performance of any and all provisions hereof or enjoining the Company from continuing to commit any such breach on the terms hereof. 15. Notices. All notices referred to in this Warrant shall be in writing and shall be delivered personally or by certified or registered mail, return receipt requested, postage prepaid and will be deemed to have been given when so delivered or mailed (i) to the Company, at its principal executive offices and (ii) to the Warrantholder, at such Warrantholder's address as it appears in the records of the Company (unless otherwise indicated in accordance with the provisions of this Section 15 by such holder). 16. Payment of Taxes. All shares of Stock issued upon the exercise of this Warrant shall be validly issued, fully paid and nonassessable, and the Company shall pay all taxes and other governmental charges that may be imposed in respect to the issue or delivery thereof. 17. Miscellaneous. This Warrant and any term hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the Warrantholder and the Company. This Warrant shall be governed by and construed and enforced in accordance with the laws of the State of Delaware. The headings in this Warrant are for purposes of reference only, and shall not limit or otherwise affect any of the terms hereof. [THE REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 20 DATED: December 31, 1997 REPLIGEN CORPORATION By: ________________________________ Title: [Corporate Seal] Attest: _______________________________ Secretary 21 EX-10.1 3 STOCK AND WARRANT PURCHASE AGREEMENT EXHIBIT 10.1 STOCK AND WARRANT PURCHASE AGREEMENT STOCK AND WARRANT PURCHASE AGREEMENT THIS STOCK AND WARRANT PURCHASE AGREEMENT (this "Agreement") is made this 31st day of December 1997 by and among Repligen Corporation, a Delaware corporation (the "Company"), and the several investors named in the attached Schedule I (individually an "Investor" and collectively the "Investors"). WHEREAS, the Company desires to issue and sell to the Investors, and the Investors desire to acquire (i) an aggregate of 2,000,000 shares (the "Shares") of the Company's Common Stock, par value $.01 per share ("Common Stock"), and (ii) warrants (the "Warrants") representing the right to purchase an aggregate of 750,000 shares (the "Warrant Shares") of Common Stock at a price per share of $1.50, substantially in the form attached hereto as Exhibit A; WHEREAS, the Company and the Investors desire to set forth certain matters to which they have agreed relating to the Shares and the Warrants; NOW, THEREFORE, in consideration of the premises and the mutual covenants contained in this Agreement, the parties agree as follows: ARTICLE I -- ISSUANCE OF SECURITIES; CLOSING SECTION 1.1 Authorization of Shares and Warrants. Subject to the terms and conditions of this Agreement, the Company has authorized the issuance of the Shares and Warrants pursuant to this Agreement. SECTION 1.2 Purchase and Sale of Shares and Warrants. Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties of the Company contained herein, each Investor agrees to purchase from the Company, and the Company agrees to sell to each Investor, on the Closing Date (as hereinafter defined) the number of Shares and Warrants to purchase the number of Warrant Shares set forth opposite such Investor's name on Schedule I. SECTION 1.3 Closing. Subject to the satisfaction of the conditions set forth in Articles IV and V hereof, the closing of the purchase and sale of the Shares and Warrants (the "Closing") shall take place at a place and time (the "Closing Date") mutually agreed by the Company and the Investors, but in any event no later than December 31, 1997. At the Closing, the Company shall deliver to each Investor (i) one or more stock certificates registered in the name of such Investor representing the number of Shares set forth opposite such Investor's name on Schedule I under the heading "Number of Shares", and (ii) a Warrant to purchase the number of Warrant Shares set forth opposite such Investor's name on Schedule I under the heading "Number of Warrant Shares" registered in the name of such Investor, against payment to the Company by such Investor by wire transfer of immediately available funds of the purchase price therefor set forth opposite the name of such Investor on Schedule I under the heading "Aggregate Purchase Price". SECTION 1.4 Allocation of Purchase Price. The Company and the Investors, having adverse interests and as a result of arm's length bargaining, agree that (i) neither the Investors nor any affiliates of the Investors has rendered or has agreed to render any services to the Company in connection with this Agreement or the issuance of the Shares and the Warrants; (ii) the Warrants are not being issued as compensation; and (iii) for the purpose, and within the meaning, of Section 1273(c)(2) of the Internal Revenue Code of 1986, as amended (the "Code"), the issue price of the Shares is $0.9625 per Share and the 22 issue price for the Warrants is $0.10 per Warrant Share. The Company and the Investors acknowledge that this allocation is based on the relative fair market values of the Shares and the Warrants. The Company and the Investors recognize that this Agreement determines the original issue discount to be taken into account by the Company and the Investors for federal income tax purposes on the Shares and they agree to adhere to this Agreement for such purposes. ARTICLE II -- REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company hereby represents and warrants to each Investor that, as of the date of this Agreement, the following are true and correct: SECTION 2.1 Organization and Standing of the Company. The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware. The Company has full corporate power and authority to enter into, deliver, and perform its obligations and undertakings under this Agreement and the Warrants. The Company is duly authorized to conduct business and is in good standing under the laws of each jurisdiction where such qualification is required, except where the lack of such qualification would not have a material adverse effect on the business, financial condition, operations, results of operations, or future prospects of the Company. The Company has full corporate power and authority to carry on the business in which it is engaged and to own and use the properties owned and used by it. SECTION 2.2 Capitalization. The Company's entire authorized capital stock consists of 30,000,000 shares of Common Stock, and 5,000,000 shares of Preferred Stock, $.01 par value per share (the "Preferred Stock"). As of September 30, 1997, there were outstanding 16,001,785 shares of Common Stock and no shares of Preferred Stock. All such outstanding shares are validly issued, fully paid, and non-assessable. Other than as indicated in the SEC Reports (as hereinafter defined), the Company does not have outstanding any option, warrant, purchase right, subscription right, stock appreciation right, phantom stock right, profit participation right, agreement, or other commitment to issue or to acquire any shares of its capital stock, or any securities or obligations convertible into or exchangeable for its capital stock, and the Company has not given any person any right to acquire from the Company or sell to the Company any shares of its capital stock. There are no voting trusts, proxies, or other agreements or understandings with respect to the voting of the capital stock of the Company. SECTION 2.3 Validity of this Agreement and Warrants. The execution and delivery by the Company of this Agreement and the Warrants and the performance by the Company of its obligations hereunder and thereunder, and the issue, sale, and delivery of the Shares, the Warrants and, upon exercise of the Warrants, the Warrant Shares, have been duly authorized and approved by all necessary corporate action. This Agreement has been duly executed and delivered by the Company and constitutes a valid and binding obligation of the Company, enforceable in accordance with its terms. The Warrants, when executed and delivered in accordance with this Agreement, will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with their terms. The execution and delivery by the Company of this Agreement and the Warrants and the performance by the Company of its obligations hereunder and thereunder, the issuance, sale, and delivery of the Shares, the Warrants and, upon exercise of the Warrants, the Warrant Shares, will not (i) conflict with, or result in, any breach of any of the terms of, or constitute a default under, the Certificate of Incorporation or By-Laws of the Company; or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to 23 accelerate, terminate, modify, or cancel or require any notice under any agreement, instrument, covenant, or other restriction or arrangement to which the Company is a party or by which it or any of its properties or assets is bound. SECTION 2.4 Governmental Consent, etc. Except for filings, consents, permits, approvals, and authorizations, which will be obtained by the Company prior to the Closing and which are set forth in Schedule 2.4, no consent, approval, authorization, or other order of, action by, filing with, or notification to any governmental authority is required under existing law or regulation in connection with the execution, delivery, and performance of the Agreement or the Warrants, or the offer, issue, sale or delivery of the Shares and the Warrants pursuant to the Agreement, or the Warrant Shares issued upon exercise of the Warrants, or the consummation of any other transactions contemplated thereby. SECTION 2.5 Valid Issuance of Shares, Warrants and Warrant Shares. When issued and delivered against payment therefor in accordance with the terms and conditions of this Agreement, the Shares shall be (i) duly authorized and validly issued, fully paid and non-assessable and (ii) not subject to any preemptive rights, liens, claims or encumbrances, or other restrictions on transfer or other agreements or understandings with respect in the voting of the Common Stock. The Warrants, when issued and delivered against payment therefor in accordance with the terms and conditions of this Agreement, shall be free and clear of all liens, charges, restrictions and encumbrances imposed by or through the Company except as set forth in the Warrants. The Warrant Shares have been duly authorized and, when issued in accordance with the terms of the Warrants, will be (X) duly authorized and validly issued, fully paid and non-assessable and (Y) not subject to any preemptive rights, liens, claims or encumbrances, or other restrictions on transfer or other agreements or understandings with respect in the voting of the Common Stock. The Warrant Shares have been duly reserved for issuance upon exercise of the Warrants. SECTION 2.6 Financial Statements. The Common Stock is registered pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Copies of all reports filed by the Company with the United States Securities and Exchange Commission (the "Commission") pursuant to the Exchange Act during the period from March 31, 1997 to the date of this Agreement (the "SEC Reports") have been furnished to the Investors. The audited financial statements of the Company contained in the Company's Annual Report on Form 10-K for the year ended March 31, 1997, including the notes relating thereto, disclose all material liabilities of the Company as of the date thereof. Such financial statements, including the notes relating thereto, have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved. Said financial statements and related notes fairly present the financial position and the results of operations and cash flow of Company as of the respective dates thereof and for the periods indicated. Since September 30, 1997, there has not been any material adverse change in the business, financial condition, operations, results of operations, assets, employee relations, customer or supplier relations or future prospects of the Company, except continuing operating losses, depletion of cash resources and changes in the ordinary course of business. SECTION 2.7 No Violation. Neither the execution and delivery by the Company of this Agreement and the Warrants, nor the consummation of the transactions contemplated hereby or thereby, will violate any constitution, statute, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency, or court known to the Company to which the Company is subject, or any provision of its Certificate of Incorporation or By-Laws. SECTION 2.8 Title to Assets. The Company has such title to its property and such rights and franchises as are necessary to operate the Company in the manner contemplated by this Agreement. 24 SECTION 2.9 Securities Laws. All notices, filings, registrations, or qualifications under state securities or "blue sky" laws, which are required in connection with the offer, issue, and delivery of the Shares and Warrants pursuant to this Agreement, and the issuance of the Warrant Shares upon exercise of the Warrants, if any, have been, or will be, completed by the Company. ARTICLE III -- REPRESENTATIONS AND WARRANTIES OF THE INVESTORS Each Investor severally and not jointly hereby acknowledges, represents, warrants, and agrees as follows: SECTION 3.1 Authority of Investor; Validity of this Agreement. The Investor has all requisite power and authority to enter into this Agreement and perform its obligations hereunder. The execution, delivery, and performance by the Investor of this Agreement, and the purchase of the Shares and the Warrants have been duly authorized and approved by all necessary corporate action. This Agreement has been duly executed and delivered and constitutes a valid and binding obligation of the Investor, enforceable in accordance with its terms, subject to laws of general application from time to time in effect affecting creditors' rights, and the exercise of judicial discretion in accordance with general equitable principles. The execution, delivery, and performance of this Agreement and the purchase of the Shares and Warrants will not conflict with, or result in, a material breach of any of the terms of, or constitute a material default under, any charter, by-law, agreement, instrument, covenant, or other restriction to which the Investor is a party or by which it or any of its properties or assets is bound. SECTION 3.2 Investment Representations. Each Investor severally and not jointly hereby acknowledges, represents, warrants, and agrees as follows: The Investor has reviewed the SEC Reports and the financial statements contained therein. The Investor acknowledges that the Company has made available to the Investor all documents and information that it has requested relating to the Company and has provided answers to all of its questions concerning the Company, the Shares and the Warrants. The Investor is an "accredited investor," as defined in Rule 501(a)(3) of the Securities Act. The Investor understands that the offering of the Shares, the Warrants and the Warrant Shares have not been registered under the Securities Act or the securities laws of any state or other jurisdiction and that the Shares, the Warrants and, upon exercise of the Warrants, the Warrant Shares must be held indefinitely unless an exemption from registration is available. The Investor understands that the offering and the sale of the Shares, the Warrants and the Warrant Shares is intended to be exempt from registration under the Securities Act, by virtue of Section 3(b), Section 4(2), and/or Section 4(6) of the Securities Act and the provisions of Regulation D promulgated thereunder, based, in part, upon the representations, warranties, and agreements of the Investor contained in this Agreement, and the Company may rely on such representations, warranties, and agreements in connection therewith. The Investor will not transfer the Shares, Warrants or Warrant Shares in violation of the provisions of any applicable Federal or state securities statute. The Investor is acquiring the Shares and Warrants for investment, and not with a view to the resale or distribution thereof; it has no present intention of selling, negotiating, or otherwise disposing of the Shares or Warrants. The Investor's financial condition and investments are such that it is in a financial position to hold the Shares, Warrants, and Warrant Shares for an indefinite period of time and to bear the economic risk of, and withstand a complete loss of, the Shares, Warrants or Warrant Shares. In addition, by virtue of its expertise, the advice available to it, and its previous investment experience, the Investor has sufficient 25 knowledge and experience in financial and business matters, investments, securities, and private placements and the capability to evaluate the merits and risks of the transactions contemplated by this Agreement. ARTICLE IV -- CONDITIONS TO INVESTORS' OBLIGATIONS SECTION 4.1 Conditions to Closing on Closing Date. The obligations of the Investors to purchase and pay for the Shares and Warrants on the Closing Date is subject to the following: (a) Representations and Warranties. The representations and warranties of the Company made herein shall be true, correct, and complete on and as of the Closing Date with the same force and effect as if they had been made on and as of the Closing Date. (b) Performance. All covenants, agreements, and conditions contained in this Agreement to be performed or complied with by the Company on or prior to the Closing Date shall have been performed or complied with. (c) Opinion of Company's Counsel. The Investors shall have received an opinion of Testa, Hurwitz & Thibeault, LLP, counsel for the Company, substantially in the form of Exhibit B hereto. (d) Corporate Proceedings, Consents, etc. All corporate and other proceedings to be taken, and all waivers and consents to be obtained, in connection with the transactions contemplated by this Agreement shall have been taken or obtained, and all documents incident thereto shall be reasonably satisfactory in form and substance to the Investors and their counsel, each of whom shall have received all such originals or certified of other copies of such documents as each may reasonably request. (e) No Proceeding. No action, suit, investigation or proceeding shall be pending or threatened before any court or governmental agency to restrain, prohibit, collect damages as a result of or otherwise challenge this Agreement or any transaction contemplated hereby or thereby. (f) No Law Prohibiting or Restricting such Sale. There shall not be in effect any law, rule or regulation prohibiting or restricting such sale, or requiring any consent or approval of any person which shall not have been obtained to issue the Shares and Warrants (except as otherwise provided in this Agreement). (g) Officer's Certificate Delivered by Company. The Company shall have delivered to the Investors a certificate, dated the Closing Date and signed by the Chief Executive Officer or the President of the Company, to the effect that each of the conditions to be satisfied by the Company pursuant to this Section 4.1 on or before each Closing Date has been duly satisfied. (h) No Material Adverse Change. There shall have been no material adverse change in the financial condition of the Company since the date of signing of the Agreement. (i) Legal Matters. All material matters of a legal nature which pertain to this Agreement and the transactions contemplated hereby shall have been reasonably approved by counsel to the Investor. ARTICLE V -- CONDITIONS TO THE COMPANY'S OBLIGATIONS SECTION 5.1 Conditions to Closing. The obligation the Company to issue the Shares and Warrants to the Investors on the Closing Date is subject to the following: 26 (a) Representations and Warranties. The representations and warranties of the Investors made herein shall be true, correct and complete in all respects on and as of the Closing Date with the same force and effect as if they had been made on and as of the Closing Date. (b) No Order Pending. There shall not then be in effect any order enjoining or restraining the transactions contemplated by this Agreement. (c) No Law Prohibiting or Restricting such Sale. There shall not be in effect any law, rule or regulation prohibiting or restricting such sale, or requiring any consent or approval of any person which shall not have been obtained to issue the Shares and Warrants (except as otherwise provided in this Agreement). ARTICLE VI -- CERTAIN AGREEMENTS OF THE PARTIES SECTION 6.1 Furnishing of Information. As long as an Investor owns at least 75% of the Shares originally purchased by it pursuant to this Agreement, the Company covenants to timely file (or obtain extensions in respect thereof) all reports required to be filed by the Company after the date hereof pursuant to Section 13(a) or 15(d) of the Exchange Act and to promptly furnish such Investor with true and complete copies of all such filings. If the Company is not at the time required to file reports pursuant to such sections, it will prepare and furnish to such Investor annual and quarterly reports comparable to those required by Section 13(a) or 15(d) of the Exchange Act in the time period that such filings would have been required to have been made under the Exchange Act. SECTION 6.2 Sale or Transfer of Securities. (a) Each of the Investors agrees that the Warrants may not be transferred or split up by such Investor without the prior written consent of the Company. The Warrants shall bear a legend substantially in the following form: THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT 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. THIS WARRANT WAS ISSUED PURSUANT TO THAT CERTAIN STOCK AND WARRANT PURCHASE AGREEMENT DATED DECEMBER 31, 1997 AND MAY NOT BE TRANSFERRED, COMBINED, OR SPLIT UP WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY. THE COMPANY WILL DELIVER A COPY OF SUCH AGREEMENT UPON REQUEST. (c) The Shares and Warrant Shares shall not be sold or transferred unless either (i) they shall have been registered under the Securities Act, or (ii) the Company shall have been furnished with an opinion of legal counsel, reasonably satisfactory to the Company, to the effect that such sale or transfer is exempt from the registration requirements of the Securities Act. (d) Each certificate representing Shares and Warrant Shares shall bear a legend substantially in the following form: 27 THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL SUCH SECURITIES ARE REGISTERED UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED. SECTION 6.3 Registration Procedures and Expenses. The Company shall: (a) prepare and file with the SEC a registration statement (the "Share Registration Statement") covering the resale of the Shares by the Investors from time to time on the Nasdaq National Market or on such securities market or system on which the Company's Common Stock shall then be publicly traded, or in privately negotiated transactions, no later than 180 days following the Closing Date. (b) use best efforts, within 90 days after the written request (the "Demand Request") of the holders of at least 500,000 Warrant Shares, to prepare and file with the SEC a registration statement (the "Warrant Share Registration Statement") covering the resale by the Investors of the Warrant Shares then outstanding on the Nasdaq National Market or on such securities market or system on which the Company's Common Stock shall then be publicly traded, or in privately negotiated transactions. Within 10 business days of its receipt of the Demand Notice, the Company shall give written notice (the "Company Notice") to all Investors holding Warrants and/or Warrant Shares of its intention to effect the Warrant Share Registration Statement and will include in the Warrant Share Registration Statement all Warrant Shares that are outstanding and with respect to which the Company has received written requests for inclusion therein within 15 days after the receipt of the Company Notice; (c) use its best efforts, subject to receipt of necessary information from each Investor, to cause the Share Registration Statement and the Warrant Share Registration Statement (collectively the "Registration Statements" and individually, a "Registration Statement") to become effective as soon as possible after filing thereof; (d) prepare and file with the SEC such amendments and supplements to the Registration Statements and the prospectus used in connection therewith as may be necessary to comply with the provisions of the Securities Act (i) in the case of the Share Registration Statement, until the later of such time as all of the Shares have been sold pursuant thereto or, by reason of Rule 144(k) under the Securities Act or any other rule of similar effect, such shares are no longer required to be registered for the unrestricted sale thereof by the Investor; and, (ii) in the case of the Warrant Share Registration Statement, until the later of 90 days after the Warrant Share Registration Statement becomes effective or such time as all of the Warrant Shares registered thereunder have been sold pursuant thereto or, by reason of Rule 144(k) under the Securities Act or any other rule of similar effect, such shares are no longer required to be registered for the unrestricted sale thereof by the Investors; (e) furnish to the Investors such number of copies of prospectuses and preliminary prospectuses in conformity with the requirements of the Securities Act and such other documents as the Investors may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Shares and Warrant Shares held by the Investors, provided, however, that 28 the obligation of the Company to deliver copies of prospectuses or preliminary prospectuses to the Investors shall be subject to the receipt by the Company of reasonable assurances from the Investors that the Investors will comply with the applicable provisions of the Securities Act and of such other securities or blue sky laws as may be applicable in connection with any use of such prospectuses or preliminary prospectuses; (f) file documents required of the Company for normal blue sky clearance in all states, provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented; (g) bear all expenses in connection with the procedures in paragraphs (a) through (c) of this Section 6.3, other than brokerage commissions or placement agent fees and fees and expenses, if any, of counsel or other advisers to the Investors with respect to the registration and resale of the Shares and Warrant Shares; and (h) prepare and file additional listing applications for the Shares and Warrant Shares on the Nasdaq National Market or on such securities market or system on which the Company's Common Stock shall then be publicly traded; provided; that the Company shall not be obligated to prepare or file a Warrant Share Registration Statement or take any of the other actions set forth above with respect to the Warrant Share Registration Statement if, at the time of exercise of the Warrants, by reason of Rule 144(k) under the Securities Act or any other rule of similar effect, the Warrant Shares are no longer required to be registered for the unrestricted sale thereof by the Investors. The Company understands that each Investor disclaims being an underwriter, but an Investor being deemed an underwriter shall not relieve the Company of any obligations it has hereunder. SECTION 6.4 Transfer of Securities After Registration. (a) Each Investor agrees that it will not effect any disposition of the Shares or Warrant Shares that would constitute a sale within the meaning of the Securities Act except as contemplated in the Registration Statements referred to in Section 6.3 or pursuant to an available exemption from registration under the Securities Act and applicable state securities laws. (b) Notwithstanding anything to the contrary in this Agreement, if at any time and from time to time after the first date of effectiveness of the Registration Statement the Company notifies the Investors in writing of the existence of a Potential Material Event, the Investors and any other persons who hold shares of Common Stock registered pursuant to Section 6.3 shall not offer or sell any shares of Common Stock, or engage in any other transaction involving or relating to the Common Stock, from the time of the giving of such notice until the earliest to occur of (a) the public disclosure by the Company of the Potential Material Event, (b) receipt of written notice from the Company that such Potential Material Event no longer exists, or (c) the date 20 days after the date of the notice of such Potential Material Event. The Company may exercise its right to notify the Investors of the existence of a Potential Material Event pursuant to this Section 6.4(b) only twice. (c) For purposes of this Agreement, "Potential Material Event" shall mean any of the following: (a) the possession by the Company of material information not ripe for disclosure in a registration statement, which shall be evidenced by determinations in good faith by the Board of Directors of the Company that disclosure of such information would be detrimental to the business and affairs of the 29 Company and that the registration statement would be materially misleading absent the inclusion of such information; or (b) any material engagement or activity by the Company which would, in the good faith determination of the Board of Directors of the Company, be adversely affected by disclosure in a registration statement at such time, which determination shall be accompanied by a good faith determination by the Board of Directors of the Company that the registration statement would be materially misleading absent the inclusion of such information. SECTION 6.5 Indemnification. For the purpose of this Section 6.5: (a) the term "Selling Shareholder" shall mean any person or entity selling Shares and/or Warrant Shares pursuant to a Registration Statement, and any affiliate thereof; (b) the term "Registration Statement" shall include any preliminary prospectus, final prospectus, exhibit, supplement or amendment included in or relating to the Registration Statement; and (c) the term "untrue statement" shall mean any untrue statement or alleged untrue statement of a material fact in the Registration Statement, or any omission or alleged omission to state in the Registration Statement a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company agrees to indemnify and hold harmless each Selling Shareholder from and against any losses, claims, damages or liabilities to which such Selling Shareholder may become subject (under the Securities Act or otherwise) insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of, or are based upon, any untrue statement, or arise out of any failure by the Company to fulfill any undertaking included herein or in the Registration Statement, and the Company promptly will reimburse such Selling Shareholder for any legal or other expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim; provided, however, that the Company shall not be liable in any such case to the extent that such loss, claim, damage or liability arises out of, or is based upon, an untrue statement made in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Selling Shareholder specifically for use in preparation of the Registration Statement, or the failure of such Selling Shareholder to comply with the covenants and agreements contained herein; provided further, that the indemnification contained in this Section 6.5 with respect to any prospectus after it has been amended or supplemented, shall not inure to the benefit of any Selling Shareholder (or any person controlling such Selling Shareholder) from whom the person asserting such loss, claim, damage, or liability shall have purchased Shares and/or Warrant Shares, that are the subject thereof if, after copies thereof have been delivered by the Company to such Selling Shareholder, such Selling Shareholder shall have failed to send or give a copy of the prospectus as then amended or supplemented, as the case may be, to such person at or prior to the confirmation of such sale of such Shares or Warrant Shares, as the case may be, to such person, and, if such loss, claim, damage or liability would not have arisen but for the failure of such Selling Shareholder to deliver the same. Each Investor agrees to indemnify and hold harmless the Company (and each other person, if any, who controls the Company within the meaning of Section 15 of the Securities Act, each officer of the Company who signs the Registration Statement and each director of the Company) from and against any losses, claims, damages or liabilities to which the Company (or any such officer, director or controlling person) may become subject (under the Securities Act or otherwise), insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of, or are based upon, any failure of such Investor to comply with its covenants and agreements contained herein, or any untrue statement if such untrue statement was made in reliance upon and in conformity with written information furnished by or on behalf of such Investor 30 specifically for use in preparation of the Registration Statement, and such Investor promptly will reimburse the Company (or such officer, director or controlling person), as the case may be, for any legal or other expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim. Promptly after receipt by any indemnified person of a notice of a claim or the beginning of any action in respect of which indemnity is to be sought against an indemnifying person pursuant to this Section 6.5, such indemnified person shall notify the indemnifying person in writing of such claim or of the commencement of such action, and, subject to the provisions hereinafter stated, in case any such action shall be brought against an indemnified person and such indemnifying person shall have been notified thereof, such indemnifying person shall be entitled to participate therein, and, to the extent it shall wish, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified person. After notice from the indemnifying person to such indemnified person of its election to assume the defense thereof, such indemnifying person shall not be liable to such indemnified person for any legal expenses subsequently incurred by such indemnified person in connection with the defense thereof. In the event that the indemnifying party shall have assumed the defense of such action, such indemnifying party shall not enter into any compromise or settlement without the indemnified party's prior written consent, which consent shall not be unreasonably withheld, delayed or denied. SECTION 6.6 Termination of Conditions and Obligations. The restrictions imposed by Sections 6.2 and 6.4 upon the transferability of the Shares and Warrant Shares shall cease and terminate as to any particular Shares or Warrant Shares when such Shares or Warrant Shares, as the case may be, shall have been effectively registered under the Securities Act and sold or otherwise disposed of in accordance with the intended method of disposition set forth in the Registration Statement or at such time as an opinion of counsel satisfactory to the Company shall have been rendered to the effect that such restrictions are not necessary in order to comply with the Securities Act. SECTION 6.7 Information Available. So long as the Registration Statement is effective covering the resale of Shares and Warrant Shares owned by an Investor, the Company will furnish to such Investor upon request: (a) any document filed by the Company with the SEC; (b) upon the reasonable request of such Investor, any other information concerning the Company that is generally available to the public; and (c) an adequate number of copies of the prospectuses relating to the resale of the Shares and Warrant Shares to supply to any party requiring such prospectuses. SECTION 6.8 "Lock-Up" Agreement. If the Company proposes to offer for sale to the public any of its equity securities, and (i) if an Investor is an "affiliate" of the Company or otherwise holds beneficially or of record ten percent (10%) or more of the outstanding equity securities of the Company, (ii) if requested by the Company and an underwriter of shares of Common Stock or other securities of the Company and (iii) if all other "affiliates" and 10% stockholders that purchased securities directly from the Company after the date hereof pursuant to a private placement of securities have signed or are contractually obligated to sign a lock-up agreement (as described below), then such Investor shall not offer, sell, grant any option or right to buy or sell, or otherwise transfer or dispose of in any manner any Common Stock or other securities of the Company held by it during the 90-day period following the effective date of the registration statement of the Company filed under the Securities Act and will sign a "lock-up agreement" to such effect. Such agreement shall be in writing and in form and substance reasonably satisfactory to the Company and such underwriter and pursuant to customary and prevailing terms and conditions. The Company may impose stop- 31 transfer instructions with respect to the securities subject to the foregoing restrictions until the end of such 90-day period. SECTION 6.9 Nontransferability. The registration rights granted in this Article VI may not be assigned or transferred in connection with a sale of Shares, the Warrants or the Warrant Shares, or otherwise. ARTICLE VII -- SURVIVAL AND INDEMNIFICATION SECTION 7.1 Survival. Notwithstanding any examination made by or on behalf of any party hereto, the knowledge of any party or the acceptance by any party of any certificate or opinion, each representation, warranty or covenant contained herein shall survive the Closing and shall be fully effective and enforceable for two years after the Closing. SECTION 7.2 Indemnification. (a) The Company shall indemnify each Investor, its shareholders, officers, directors, employees, agents and representatives against any damages, claims, losses, liabilities and expenses (including reasonable counsel fees and expenses) which may be suffered or incurred by any of them as a result of a breach of any representation, warranty or covenant made by the Company in this Agreement; (b) Each Investor agrees to indemnify the Company and its shareholders, officers, directors, employees, agents and representatives against any damages, claims, losses, liabilities and expenses (including reasonable counsel fees and other expenses) which may be suffered or incurred by it as a result of any breach of any representation, warranty, or covenant made by such Investor in this Agreement; and (c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to this Section, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing of the occurrence of the facts and circumstances giving rise to such claim. The failure of any person to deliver the notice required by this Section 7.2(c) shall not in any way affect the indemnifying party's indemnification obligations hereunder except and only to the extent tat the indemnifying party is actually prejudiced thereby. In case any such proceeding shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall which, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party and shall pay as incurred the fees and expenses of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel or pay its own expenses. Notwithstanding the foregoing, the indemnifying party shall pay as incurred the fees and expenses of the counsel retained by the indemnified party in the event (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceedings (including any impleaded parties) include both the indemnify party and the indemnified party and representations of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against an loss or liability by reason of such settlement or judgment. 32 ARTICLE VIII -- MISCELLANEOUS SECTION 8.1 Notices. All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the receiving party's address set forth below or to such other address as a party may designated by notice hereunder, and shall be either (i) delivered by hand, (ii) made by telex, telecopy or facsimile transmission, (iii) sent by overnight courier, or (iv) sent by registered mail, return receipt requested, postage prepaid. If to an Investor: The address specified on Schedule I. With a copy to: Sidley & Austin 875 Third Avenue New York, NY 10022 Attention: David Ridl, Esq. Facsimile: 212-906-2021 If to the Company: Repligen Corporation 117 Fourth Avenue Needham, MA 02194 Attention: Chief Executive Officer Facsimile: 781-453-0048 With a copy to: Testa, Hurwitz & Thibeault, LLP 125 High Street Boston, MA 02110 Attention: Lawrence S. Wittenberg, Esq. Facsimile: 617-248-7100 All notices, requests, consents and other communications hereunder shall be deemed to have been given together (i) if by hand, at the time of the delivery thereof to the receiving party at the address of such party set forth above; (ii) if my telex, telecopy or facsimile transmission, one (1) day after the time that receipt thereof has been acknowledged by electronic confirmation or otherwise; (iii) if sent by overnight courier, on the next business day following the day such notice is delivered to the courier service; or (iv) if sent by registered mail, on the 5th business day following the day such mailing is made. SECTION 8.2 Entire Agreement. This Agreement, including exhibits, or other documents referred to herein or that specifically indicate that they were delivered to the Investors in connection with this Agreement, embodies the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior oral or written agreements and understandings relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement or in any document that specifically indicates that it was delivered to the Investors in connection with this Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement. SECTION 8.3 Amendments. The terms and provisions of the Agreement may be modified, amended or waived, or consent for the departure therefrom granted, only by written consent of the Company and the Investors holding at least 50% of the Shares then held by all Investors. No such waiver or consent shall be deemed to be an Agreement, whether or not similar. Each such waiver or consent shall be effective only 33 in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent. SECTION 8.4 Assignment. The rights and obligations under this Agreement may not be assigned by any party hereto without the prior written consent of the Company and Investors holding in the aggregate at least 50% of the Shares then held by all Investors. Neither this Agreement not any or all of the rights and obligations of a party hereunder shall be assigned, delegated, sold, transferred or otherwise disposed of by operation of law or otherwise, to any third person without the prior written consent of Company and Investors holding in the aggregate at least 50% of the Shares then held by all Investors, and any attempted assignment, delegation, sale, transfer, or other deposition, by operation of law or otherwise, of this Agreement or of any rights or obligations hereunder contrary to this Section 8.4 shall be void and without force or effect. Each party shall be responsible for the compliance by its Affiliates with the terms and conditions of this Agreement. SECTION 8.5 Benefit. All statements, representations, warranties, covenants and agreements in this Agreement shall be binding on the parties hereto and shall unsure to the benefit of the respecting successors and permitted assigns of each party hereto. Nothing in this Agreement shall be construed to create any rights or obligations except among the parties hereto, and no person or entity shall be regarded as a third-party beneficiary of this Agreement. SECTION 8.6 Governing Law. This Agreement and the rights and obligations of the partied hereunder shall be construed in accordance with and governed by the law of the Commonwealth of Massachusetts, without giving effect to the conflict of law principles thereof. SECTION 8.7 Severability. In the event that any court of competent jurisdiction shall determine that any provision, or any portion thereof, contained in this Agreement shall be unreasonable or unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such provision, or portion thereof, wholly unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full force and effect. SECTION 8.8 Headings and Captions. The headings and captions of the various subdivisions of this Agreement are for convenience of reference only and shall in on way modify, or affect the meaning or constructions of any of the terms or provisions hereof. SECTION 8.9 No Waiver of Rights, Powers and Remedies. No failure or delay by a party hereto in exercising any right, power or remedy under this Agreement, and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of the party. No single or partial exercise of any right, power or remedy under this Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such party from other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Agreement shall entitle the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand. SECTION 8.10 Expenses. Except as provided in Section 6.5 or Section 7.2, each of the parties shall pay its own fees and expenses (including the fees of any attorneys, accountants, appraisers or others 34 engaged by such party) in connection with this Agreement and the transactions contemplated hereby wither or not the transactions contemplated hereby are consummated. SECTION 8.11 Brokers. Each of the parties hereto represents and warrants to the other that no broker, finder or other financial consultant has acted on its behalf in connection with this Agreement or the transactions contemplated hereby in such a way as to create any liability on the other. Each of the parties hereto agrees to indemnify and save the other harmless from any claim or demand for commission for other compensation by any other broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of such party and to bear the cost of legal expenses incurred in defending against any such claim. SECTION 8.12 Confidentiality. Each Investor acknowledges and agrees that any information or data it has acquired from the Company, which is clearly designated in writing as confidential and is not otherwise properly in the public domain, was received in confidence. Each Investor agrees not to divulge, communicate or disclose, except as may be required by law or for the performance of this Agreement, or use to the detriment of the Company or for the benefit of any other person or persons, or misuse in any way, any confidential information of the Company. SECTION 8.13 Counterparts. This Agreement may be executed in one or more counterparts, and by different parties hereto on separate counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. SECTION 8.14 Further Assistance. In case at any time after the Closing any further action is necessary or desirable to carry out the purposes of this Agreement, the Company and the Investors will take such further action as the other party may reasonably request, all at the sole cost and expense of the requesting party (unless the requesting party is entitled to indemnification under Article VII). [Remainder of page intentionally left blank.] 35 IN WITNESS WHEREOF, the undersigned have executed this Stock Purchase Agreement this 31st day of December, 1997. REPLIGEN CORPORATION By: /s/ Walter C. Herlihy ------------------------------ Name: Walter C. Herlihy Title: Chief Executive Officer BIOTECHNOLOGY VALUE FUND, L.P. By: /s/ Mark N. Lampert ------------------------------ Name: Mark N. Lampert Title: President of BVF Partners L.P. Its General Partner BIOTECHNOLOGY VALUE FUND, LTD. By: /s/ Mark N. Lampert ------------------------------ Name: Mark N. Lampert Title: Director BIOTECHNOLOGY VENTURE PARTNERS, L.P. By: /s/ Mark N. Lampert ------------------------------ Name: Mark N. Lampert Title: President of BVF Partners L.P. Its General Partner 36 INVESTMENT 10, L.L.C. By: /s/ Paul Meister ------------------------------ Name: Paul Meister Title: Vice-President of Grosvenor Capital Management Inc. General Partner of Grosvenor Capital Management, L.P. General Partner of Grosvenor Multi-Strategy Fund, L.P Member of Investment 10 L.L.C. FOUR PARTNERS By: /s/ Thomas J. Tisch ------------------------------ Name: Thomas J. Tisch Title: Managing Partner 37 EX-27.1 4 FDS
5 1,000 9-MOS MAR-31-1998 DEC-31-1997 4,919 0 390 25 528 5,946 1,245 532 6,747 310 0 0 0 180 6,257 6,747 856 1,932 426 2,412 0 0 0 (480) 0 0 0 0 0 (480) (.03) (.03)
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